volume II | INTERNATIONAL COURT OF JUSTICE

Document Number

18790

Parent Document Number

18788

Document File

18790.pdf

INTERNATIONAL COURT OF JUSTICE

_____________________________________________

ALLEGED VIOLATIONS OF SOVEREIGN
RIGHTS AND MARITIME SPACES IN THE
CARIBBEAN SEA

(NICARAGUA v. COLOMBIA)

PRELIMINARY OBJECTIONS OF

THE REPUBLIC OF COLOMBIA

VOLUME II

ANNEXES

19 DECEMBER 2014 TABLE OF CONTENTS

VOLUME II: LIST OFANNEXES

COLOMBIAN OFFICIALDOCUMENTS

Annex 1 Political Constitution of the Republic of
Colombia, Article 101 . . . . . . . . . . . . . 1 . . . . . . . .

Annex 2 Actio Popularis of Unconstitutionality against
Articles XXXI and L of the Pact of Bogotá

(Law No . 37 of 1961), Submitted by the
President of the Republic of Colombia to the
Constitutional Court, 12 Sept . 2013 . . . . . . 5 . . . . .

Annex 3 Presidential Decree No . 1946 of 2013,
Territorial Sea, Contiguous Zone and

Continental Shelf of the Colombian Islands
Territories in the Western Caribbean,
9 Sept . 2013 . . . . . . . . . . . . . . . . 51. . . . . . . . . . . . .

Annex 4 Judgment C-269/14, Actio Popularis of

Unconstitutionality against Articles II
(Partially), V (Partially), XXXI and L of the
Law No . 37 of 1961, “Whereby theAmerican
Treaty on Pacific Settlement (Pact of Bogotá)
isApproved, 2 May 2014 . . . . . . . . . . . .61 . . . . . .

Annex 5 Presidential Decree No . 1119 of 2014,
Amendment to the Presidential Decree No .
1946 of 2013, Territorial Sea, Contiguous
Zone and Continental Shelf of the Colombian

Islands Territories in the Western Caribbean,
17 June 2014 . . . . . . . . . . . . . . . . .77 . . . . . . . . . . .

iii DECLARATIONS

Annex 6 Declaration of the President of the Republic of
Colombia, 19 Nov . 2012 . . . . . . . . . . . . 83. . . . . . .

Annex 7 Press Conference of the Minister
of Foreign Affairs of Colombia,
20 Nov . 2012 . . . . . . . . . . . . . . . . . 93. . . . . . . . . . .

Annex 8 Declaration of the President of the Republic of

Colombia, 28 Nov . 2012 . . . . . . . . . . . .103. . . . . .

Annex 9 Declaration of the President of the Republic of
Colombia, 1 Dec . 2012 . . . . . . . . . . . . 107 . . . . . .

Annex 10 Declaration of the President of the Republic of
Colombia, 18 Feb . 2013 . . . . . . . . . . . .111. . . . . .

Annex 11 Declaration of the President of the Republic of
Nicaragua, 14Aug . 2013 . . . . . . . . . . . .115. . . . . .

Annex 12 Declaration of the President of the Republic of
Colombia, 9 Sept . 2013 . . . . . . . . . . . .121. . . . . . .

Annex 13 Declaration of the President of the Republic of

Colombia, 18 Sept . 2013 . . . . . . . . . . . 131 . . . . . .

DIPLOMATIC DOCUMENTSAND CORRESPONDENCE

Annex 14 Diplomatic Note from the Minister of Foreign

Affairs of El Salvador to the Secretary-General
of the Organization of American States,
24 Nov . 1973 . . . . . . . . . . . . . . . . .137. . . . . . . . . .

Annex 15 Diplomatic Note GACIJ No . 79357 from the

Minister of Foreign Affairs of Colombia to
the Secretary-General of the Organization of
American States, 27 Nov . 2012 . . . . . . . . 141 . . . .

ivAnnex 16 Note No . OEA/2 .2/109/12 from the Secretariat
for Legal Affairs of the Department of
International Law of the Organization of
American States to the High Contracting
Parties to the American Treaty on Pacific

Settlement (Pact of Bogotá) and to the other
Permanent Missions to the Organization of
American States, 28 Nov . 2012 . . . . . . . 145 . . . . .

Annex 17 Note Verbale No . MRE/VM-

DGAJST/457/09/14 from the Ministry
of Foreign Affairs of Nicaragua to the
Ministry of Foreign Affairs of Colombia,
13 Sept . 2014 . . . . . . . . . . . . . . . 149 . . . . . . . . . . .

Annex 18 Note Verbale No . S-GAMA-14-071982 from
the Ministry of ForeignAffairs of Colombia to
the Ministry of ForeignAffairs of Nicaragua,
1 Oct . 2014 . . . . . . . . . . . . . . . . 155 . . . . . . . . . . .

INTER-AMERICAN TREATIES AND RELATED
DOCUMENTS

Annex 19 Inter-American Treaties from 1902 to 1936,

Clauses of Denunciation . . . . . . . . . . .159. . . . . . .

Annex 20 Seventh International Conference ofAmerican
States, Montevideo, Uruguay, Code of Peace,
Resolution XXXV,Approved 23 Dec . 1933 . . . . . 169

Annex 21 Inter-American Conference for the
Maintenance of Peace, Buenos Aires,
Argentina, Code of Peace, Resolution XXVIII,
Approved 21 Dec . 1936 . . . . . . . . . . . 187 . . . . . .

Annex 22 Memorandum from the General Director of
the Pan-American Union to the United States
Under Secretary of State, 28 Dec . 1937 . . .191. . .

v Annex 23 Delegation of the United States of America,
Topic 1: Perfecting and Coordination of
Inter-American Peace Instruments, Draft on
Consolidation of American Peace Agreements
submitted to the First Commission , Eighth

International Conference of American States,
Lima, Peru, 15 Nov . 1938 . . . . . . . . . . .195. . . . . .

Annex 24 Delegation of the United States of America,
Topic 1: Perfecting and Coordination of Inter-

American Peace Instruments, Final Draft on
Consolidation of American Peace Agreements
submitted to the First Commission , Eighth
International Conference of American States,
Lima, Peru, 16 Dec . 1938 . . . . . . . . . . .211. . . . . .

Annex 25 Delegation of the United States of America,
Report of the Meetings of Sub-Committee 1
of Committee I, Consolidation of American
Peace Instruments and Agreements , Eighth

International Conference of American States,
19 Dec . 1938 . . . . . . . . . . . . . . . . .225. . . . . . . . . .

Annex 26 Comparative Chart of Drafts Presented by
American States to the First Commission at the

Eighth International Conference of American
States, Lima, Peru, Dec . 1938 . . . . . . . . 229 . . . . .

Annex 27 Eighth International Conference of American
States, Perfection and Coordination of Inter-
American Peace Instruments, Resolution XV ,

Approved 21 Dec . 1938 . . . . . . . . . . . . 235 . . . . .

viAnnex 28 Inter-American Juridical Committee, Text of
Document A: Draft Treaty for the Coordination
of Inter-American Peace Agreements, Article
XXXII; Text of Document B: Draft of an
Alternative Treaty Relating to Peaceful

Procedures, Article XXVIII ; and Text of
Document C: Report to Accompany the Draft
Treaty for the Coordination of Inter-American
Peace Agreements and Draft of an Alternative
Treaty, 6 Mar . 1944 . . . . . . . . . . . . . .239. . . . . . . .

Annex 29 Inter-American Juridical Committee, Draft
of an Inter-American Peace System and an
Accompanying Report, Article XXIX , 4 Sept .
1945 . . . . . . . . . . . . . . . . . . . . . .245. . . . . . . . . . . .

Annex 30 Inter-American Juridical Committee, Inter-
American Peace System: Definitive Project
Submitted to the Consideration of the Ninth
International Conference of American States

in Bogotá, Article XXVI, 18 Nov . 1947 . . . . .249. .

Annex 31 Ninth International Conference of American
States,Minutes of the Second Part of the Fourth
Session of the Coordination Commission ,

29 Apr . 1948 . . . . . . . . . . . . . . . . . 253 . . . . . . . . .

Annex 32 Ninth International Conference of American
States, Style Commission, 29Apr . 1948 . . . . .257.

Annex 33 Text of the Pact of Bogotá, in the FourAuthentic

Languages (Spanish, English, Portuguese, and
French) . . . . . . . . . . . . . . . . . . . . 261 . . . . . . . . . .

vii OTHER DOCUMENTS

Annex 34 90 Minutos, Colombia seeks contact with
Nicaragua after Judgment of The Hague , 24
Nov . 2012 . . . . . . . . . . . . . . . . . . 311 . . . . . . . . . .

Annex 35 Tele Sur, Ortega and Santos talk in Mexico
about dispute, 1 Dec . 2012 . . . . . . . . . .315. . . . . .

Annex 36 El Nuevo Diario, The Navies are
communicating, 5 Dec . 2012 . . . . . . . . . .319. . . . .

Annex 37 El Tiempo, Press Interview to the Minister of
ForeignAffairs of Colombia, 13 Jan . 2013 . . . . . 325

Annex 38 Blu Radio, Waters of San Andrés, main

challenge of new Commander of the Navy ,
13 Aug . 2013 . . . . . . . . . . . . . . . . . 329 . . . . . . . . .

Annex 39 W Radio, Radio Interview to the Minister of
ForeignAffairs of Colombia, 10 Sept . 2013 . . . . 335

Annex 40 Semana, Ortega calls for respect to the
Judgment of the Court of The Hague ,
10 Sept . 2013 . . . . . . . . . . . . . . . . 339 . . . . . . . . . .

Annex 41 La Jornada, Ortega says that Nicaragua is
ready to create a Commission to ratify the
Judgment of the ICJ, 13 Sept . 2013 . . . . . .343. . .

Annex 42 El Tiempo, The Minister of Foreign Affairs
explains in detail the strategy vis-a-vis

Nicaragua, 15 Sept . 2013 . . . . . . . . . . .347. . . . . .

Annex 43 El Nuevo Diario,Patrolling the recovered sea,
18 Nov . 2013 . . . . . . . . . . . . . . . . .351. . . . . . . . . .

viiiAnnex 44 El Universal, In Colombia a rupture of
diplomatic relations with Nicaragua is
excluded, 24 Dec . 2013 . . . . . . . . . . . . 357 . . . . . .

Annex 45 El Colombiano,Colombia and Nicaragua will

conclude agreements on the Judgment of The
Hague: Ortega, 29 Jan . 2014 . . . . . . . . . .361. . . .

Annex 46 El Economista,Nicaragua denies intimidation
of Colombia in San Andrés, 18 Mar . 2014 . . . . . 365

Annex 47 Reuters, Colombia Court backs Santos
in sea boundary dispute with Nicaragua ,
2 May 2014 . . . . . . . . . . . . . . . . . . .369. . . . . . . . .

ix Annex 1

POLITICALC ONSTITUTION OF THR EPUBLIC OFCOLOMBIA ,
A RTICLE101

(Constitutional Gazette No. 116 of 20 July 1991)

12 Annex 1

POLITICAL CONSTITUTION OF COLOMBIA

Constitutional Gazette No. 116 of 20 July 1991

(…)

Article 101 .

The boundaries of Colombia are those established in

international treaties approved by Congress, duly ratified by the
President of the Republic, and the ones defined in arbitral wards
to which the Nation is a party .

The boundaries fixed in the manner set forth in this Constitution
may only be modified by virtue of treaties approved by
Congress, duly ratified by the President of the Republic .

Besides the continental territory, the archipelago of San Andrés,
Providencia, Santa Catalina and Malpelo are par t of Colombia,
in addition to the islands, islets, keys, headlands and banks that
belong to it .

Also part of Colombia is the subsoil, the territorial sea, the
contiguous zone, the continental shelf, the exclusive economic
zone, the airspace, the segment of the geostationary orbit, the
electromagnetic spectrum and the space in which it operates, in
accordance with international law or the laws of Colombia in the
absence of international norms .

(…)

34 Annex 2

ACTIOPOPULARIS OU NCONSTITUTIONALITY AGAINARTICLES
XXXI AND LOF THEPACT OFB OGOTÁ(LAW NO. 3OF 1961),

SUBMITTED BY THEPRESIDENT OF TREEPUBLIC OCOLOMBIA
TO THEC ONSTITUTIONALCOURT,12SEPTEMBER 2013

(Presidency of the Republic of Colombia)

56 Annex 2

Honourable Magistrates
Constitutional Court
E. S. D.

Ref.: Complaint against
Articles XXXI and L of the
Pact of Bogotá (Law 37 of
1961)

Respectable Magistrates:

JUAN MANUEL SANTOS identified with I .D . number

19123402, address you in exercise of a constitutional public
action to request the declaration of unconstitutionality of
articles XXXI and L of the American Treaty on Pa cific
Settlement (Pact of Bogotá )”, incorporated in domestic law by
Law 37 of 1961, which in that part is also subject of the present
complaint .

I. LEGAL PROVISIONS CHALLENGED

The challenged paragraphs of Articles XXXI and L of the
American Treaty on Pacific Settlement (Pact of Bogotá ) are
transcribed below, which were incorporated to national
legislation by Law 37 of 1961, that in that part is also object of
this complaint .

“ARTICLE XXXI. In conformity with Article 36,
paragraph 2, of the Statute of the International Court of
Justice, the High Contracting Parties declare that they
recognize, in relation to any other American State, the
jurisdiction of the Court as compulsory ipso facto,
without the necessity of any special agreement so long as

the present Treaty is in force, in all di sputes of a
juridical nature that arise among them concerning:

a) The interpretation of a treaty;

b) Any question of international law;

7Annex 2

c) The existence of any fact which, if established,
would constitute the breach of an international
obligation;

d) The nature or extent of the reparation to be made
for the breach of an international obligation.”

ARTICLE L. If one of the High Contracting Parties
should fail to carry out the obligations imposed upon it

by a decision of the International Court. of Justi ce or by
an arbitral award, the other party or parties concerned
shall, before resorting to the Security Council of the
United Nations, propose a Meeting of Consultation of
Ministers of Foreign Affairs to agree upon appropriate
measures to ensure the fulfilment of the judicial decision
or arbitral award.

II. INFRINGED CONSTITUTIONAL NORMS

The challenged provisions violate articles 3, 9 and 101 of the
Political Constitution .

III. LEGAL BASIS

1. Introduction and summary of the charges formulated

Law 37 of 1961 1 approving the Pact of Bogotá predates the
Constitution of 1991 . This complaint alleges that some

paragraphs of this law, which incorporated two provisions of the
Pact of Bogotá to national legislation, permitting the automatic
modification of Colombia’s boundaries, based on a judgment of
the International Court of Justice, turned out unconstitutional .

It is about a supervening unconstitutionality inasmuch as

Article 101 of the Constitution provides that the country’s
boundaries may only be modified by an international treaty .

It is a constitutional rule that makes more concrete one of the
essential elements of Colombia’s sovereignty, which rests

1
Law 37 of 1991, “by means of which the American Treaty on Pacific
Settlement (Pact of Bogotá)” is approved .

8 c) The existence of any fact which, if established,
would constitute the breach of an international
obligation;

d) The nature or extent of the reparation to be made
for the breach of an international obligation.”

ARTICLE L. If one of the High Contracting Parties
should fail to carry out the obligations imposed upon it

II. INFRINGED CONSTITUTIONAL NORMS

The challenged provisions violate articles 3, 9 and 101 of the
Political Constitution .

III. LEGAL BASIS

1. Introduction and summary of the charges formulated

Law 37 of 1961 1 approving the Pact of Bogotá predates the
Constitution of 1991 . This complaint alleges that some

It is about a supervening unconstitutionality inasmuch as

Article 101 of the Constitution provides that the country’s
boundaries may only be modified by an international treaty .

It is a constitutional rule that makes more concrete one of the
essential elements of Colombia’s sovereignty, which rests

1
Law 37 of 1991, “by means of which the American Treaty on Pacific
Settlement (Pact of Bogotá)” is approved .Annex 2

fail to carry out the obligations imposed upon it by a decision of
the International Court. of Justice or by an arbitral award, t he
other party or parties concerned shall, before resorting to the
Security Council of the United Nations, propose a Meeting of
Consultation of Ministers of Foreign Affairs to agree upon

appropriate measures to ensure the fulfilment of the judicial
decision or arbitral award .”

The contradiction between the constitutional norms and these
two articles of the Pact of Bogotá incorporated by Law 37 of
1961, is manifest . While these permit that the International
Court of Justice modifies Colombia’s land and maritime

boundaries, article 101 of the Constitution clearly says that “ the
boundaries fixed in the manner set forth by this Constitution can
only be modified by virtue of treaties approved by Congress,
duly ratified by the President of the Republic” .

The “the boundaries fixed in the manner set forth by this
Constitution”, the one adopted by the Constituent Assembly of

1991, are the ones drawn by the treaties in force in 1991 . So was
provided for by the very same article 101 in indicating that “ the
boundaries fixed in the manner set forth in international treaties
approved by Congress, duly ratified by the President of the
Republic, and those defined by arbitral awards in which the
Nation is a party” .

Therefore, if a treaty in force in 1991 fix ed a land or maritime
boundary, it can only be modified through a treaty . It cannot be
modified by any other means . However, the challenged articles
permit to do so with a judgment of the International Court of
Justice .

This complaint also asserts (i) tha t the Constitutional Court is

competent to hear constitutional challenges against treaties
approved and ratified prior to 1991, and (ii) continues to have
competence to adjudge on the law approving the Pact of Bogotá,
notwithstanding that the National Government denounced such
treaty in accordance with the procedure set forth in Article LVI .

In the following paragraphs it is shown that the Constitutional

Court is competent to pronounce upon this complaint by a
judgment on the merits . Then, the formulated charge is

10fail to carry out the obligations imposed upon it by a decision of
the International Court. of Justice or by an arbitral award, t he
other party or parties concerned shall, before resorting to the
Security Council of the United Nations, propose a Meeting of
Consultation of Ministers of Foreign Affairs to agree upon

appropriate measures to ensure the fulfilment of the judicial
decision or arbitral award .”

The “the boundaries fixed in the manner set forth by this
Constitution”, the one adopted by the Constituent Assembly of

This complaint also asserts (i) tha t the Constitutional Court is

In the following paragraphs it is shown that the Constitutional

Court is competent to pronounce upon this complaint by a
judgment on the merits . Then, the formulated charge isAnnex 2

domestic legal system international agreements or
treaties ratified before the new Constitution .”

Subsequently, in Judgment C -276 of 1993 (Judge Vladi miro
Naranjo Mesa) the Courtupheld a different thesis and adjudged:

“SECOND. TO REFRAIN FROM rendering a decision
on the merits with respect to the constitutionality of the
“Treaty of International Civil Law and the Treaty of
International Commercial Law” , signed in Montevideo
on 13 February, 1889” .

Said treaty had been ratified by Colombi a in 1993 and
accordingly Colombia had already given its international
consent to it . The Court considered that

“Once perfected, the international treaties establishes, by
definition, a binding rule of conduct to all signatory
States; enshrined in the pri nciple pact sunt servanda,

which is a principle of security, justice and international
morals.

[…]

The mandatory character of the treaties already perfected
and in force for the states that are parties to them, is, then,

unquestionable in the light of international law principles.
One wonders what will happen in the event that a treaty
perfected prior to the entering into force of the 1991
Political Constitution resulted in a contradiction with one
of the mandates established in it. In that case the National
Government, and specifically the President of the Republic
and its Minister of Foreign Affairs, are called to be the

first ones to solve the problem. Therefrom, they are
provided of suitable mechanisms enshrined in the
Constitution itself and in international law, such as , the
recognition of a treaty, or its reform, or depending on the
case, its denunciation, if it is related to multilateral
treaties.

In any event, it is not the Constitutional Court the
competent to solve the problem, which could only be

12 domestic legal system international agreements or
treaties ratified before the new Constitution .”

Subsequently, in Judgment C -276 of 1993 (Judge Vladi miro
Naranjo Mesa) the Courtupheld a different thesis and adjudged:

Said treaty had been ratified by Colombi a in 1993 and
accordingly Colombia had already given its international
consent to it . The Court considered that

“Once perfected, the international treaties establishes, by
definition, a binding rule of conduct to all signatory
States; enshrined in the pri nciple pact sunt servanda,

which is a principle of security, justice and international
morals.

[…]

The mandatory character of the treaties already perfected
and in force for the states that are parties to them, is, then,

In any event, it is not the Constitutional Court the
competent to solve the problem, which could only beAnnex 2

The agreement on the use of military bases in Colombia by the
armed forces of the United States had incidence in various
spaces of the national territory . While it did not directly regulate

constitutional rights, as was the case of the Concordat, its impact
in the people inhabiting the zones around the bases was clear . It
was also clear that obligations for Colombia derived from the
agreement which had to be approved by the people’s
representatives in the Congress of the Republic and then
reviewed by the Constitutional Court .

In this decision the Court noted:

“the public action of unconstitutionality against
international agreement has also been accepted by the
jurisprudence of this Court ever since its first decisions
and operates in at least three events:

(i) Against laws approving treaties entered into and
ratified prior to the Constitution of 1991. That was the
position set forth in the Judgment that examined a
complaint against the law approving the Concordat,
which was abandoned for a short period and later

reassumed in the Judgment that examined the Vienna
Convention on the Law of Treaties between States and
International Organizations.
[...]”

Therefore, jurisprudence admits the complaint against treaties

prior to 1991 approved by laws passed pri or to the Constitution
of 1991 because otherwise the Constitutional Court would not
be able to fulfil its responsibility of defending the supremacy of
the Constitution .

The norms challenged on this occasion meet these requirements .

Articles XXXI and L of the American Treaty on Pacific
Settlement (Pact of Bogotá) were approved by Law 37 of 1961,
which in that part is also object of this complaint . Their content
permits the International Court of Justice to modify Colombia’s
land and maritime boundarie s, affecting those people living in
the areas affected by the respective judgment of the Court . The
meaning of the challenged norms is overtly contrary to the

Constitution because while Article 101 of the Constitution

14The agreement on the use of military bases in Colombia by the
armed forces of the United States had incidence in various
spaces of the national territory . While it did not directly regulate

In this decision the Court noted:

reassumed in the Judgment that examined the Vienna
Convention on the Law of Treaties between States and
International Organizations.
[...]”

Therefore, jurisprudence admits the complaint against treaties

The norms challenged on this occasion meet these requirements .

Constitution because while Article 101 of the ConstitutionAnnex 2

Article LVI of the Pact permits the denunciation of the treaty

and regulates the effects of the same . Colombia denounced the
Pact of Bogotáon 27 November 2012 .

Although it may not be invoked by a State to file a new
complaint against Colombia, the obligations acquired in

previous proceedings continue in force . In other words, the Pact
of Bogotá shall continue to produce effects for Colombia on the
date this compl aint is filed and on the date the judgment is
pronounced by the Constitutional Court .

Therefore, the Court should not refrain from rendering judgment
on the merits .

Article LVI of the Pact provides:

“Article LVI. The present Treaty shall remain in force

indefinitely, but may be denounced upon one year's
notice, at the end of which period it shall cease to be in
force with respect to the state denouncing it, but shall
continue in force for the remaining signatories. The
denunciation shall be addressed to the Pan American

Union, which shall transmit it to the other Contracting
Parties.

The denunciation shall have no effect with respect to
pending procedures initiated prior to the transmission of

the particular notification.”

Paragraphs 1 and 2 of the trea ty must be harmonized . The first
paragraph provides that the Pact shall cease to be in force one
year after it is denounced . The second paragraph provides that

the denunciation shall have no effect over procedures initiated
prior to the transmission of the notification, from which it is
inferred that denunciation can produce effects over procedures
initiated subsequent to the notification .

The National Government has asserted that the jurisdiction of
the International Court of Justice ceased as of the notification of
Colombia, in accordance with paragraph two of Article LVI .

16Article LVI of the Pact permits the denunciation of the treaty

and regulates the effects of the same . Colombia denounced the
Pact of Bogotáon 27 November 2012 .

Although it may not be invoked by a State to file a new
complaint against Colombia, the obligations acquired in

Therefore, the Court should not refrain from rendering judgment
on the merits .

Article LVI of the Pact provides:

“Article LVI. The present Treaty shall remain in force

Union, which shall transmit it to the other Contracting
Parties.

The denunciation shall have no effect with respect to
pending procedures initiated prior to the transmission of

the particular notification.”

Paragraphs 1 and 2 of the trea ty must be harmonized . The first
paragraph provides that the Pact shall cease to be in force one
year after it is denounced . The second paragraph provides that

The National Government has asserted that the jurisdiction of
the International Court of Justice ceased as of the notification of
Colombia, in accordance with paragraph two of Article LVI .Annex 2

In addition, some State, especially Nicaragua, could defend the

thesis that Colombia continues subject to the compulsory
jurisdiction of the Pact until N ovember 27, 2013 . Nicaragua, for
example, could proceed to bring before the International Court
of Justice the application it has announced asking it to recognize

an extended continental shelf of 350 nautical miles and to fix a
new boundary with Colombia c lose to Colombia’s continental
coast in the Caribbean Sea . Colombia would challenge both the
jurisdiction of the Court and this claim, but the International
Court of Justice would decide if it has jurisdiction and

competence with respect to this new dispute .

Now then, the constitutional jurisprudence has constantly said
that

“In guarding the integrity and supremacy of the
Constitution, it should know what provisions have been
challenged and repealed, provided that such norms
continue to produce legal effects. On the other hand, if

the challenged norm excluded from the legal framework
no longer produces legal effects or never produced them,
the judgment of constitutionality is innocuous due to a
lack of object” .

The Pact of Bogotá, in virtue of its denunciation by Colombia, is
no longer in force for Colombia, in the abstract, with respect to
future judicial proceedings, but it continues to produce effects
because a judgment was rendered in a proceeding against

Colombia, which modified its maritime boundaries in the waters
of the Archipelago and affected the unit of the archipelago,
together with another proceeding announced by Nicaragua to
request recognition of an extended continental shelf, which
would reduce the extension of the continental shelf derived from

Colombia’s continental coasts .

Therefore, the Constitutional Court is competent to deliver a
judgment on the merits on this complaint and to review the

5 Judgment C-505 of 1995, Judge Alejandro Martinez Caballero .

Reiterated, among others, in JudgmentC-193 of 2011, Judge Mauricio
Gonzalez Cuervo .

18In addition, some State, especially Nicaragua, could defend the

competence with respect to this new dispute .

Now then, the constitutional jurisprudence has constantly said
that

the challenged norm excluded from the legal framework
no longer produces legal effects or never produced them,
the judgment of constitutionality is innocuous due to a
lack of object” .

Colombia’s continental coasts .

Therefore, the Constitutional Court is competent to deliver a
judgment on the merits on this complaint and to review the

5 Judgment C-505 of 1995, Judge Alejandro Martinez Caballero .

Reiterated, among others, in JudgmenC-193 of 2011, Judge Mauricio
Gonzalez Cuervo .Annex 2

c) The existence of any fact which, if established,
would constitute the breach of an international
obligation;

d) The nature or extent of the reparation to be made

for the breach of an international obligation”.

The Pact of Bogotá does not contain norms related t o the
incorporation of international decisions . This is a matter left to
the domestic legislation of each State .

However, Article L creates a proceeding for the enforcement of

the International Court of Justice judgments . Article L provides:

“ARTICLE L . If one of the High Contracting Parties should fail
to carry out the obligations imposed upon it by a decision of the
International Court . of Justice or by an arbitral award, the other
party or parties concerned shall, before resorting to the Security
Council of the United Nations, propose a Meeting of

Consultation of Ministers of Foreign Affairs to agree upon
appropriate measures to ensure the fulfillment of the judicial
decision or arbitral award .”

Therefore, at first glance, the Pact of Bogotá really per mits the
modification of the territorial and maritime boundaries of the
Colombian State without a treaty signed by the President of the

Republic and approved by the Congress of the Republic, as
established by Article 101 of the Constitution .

The Pact of Bogotá permits the modification of “the boundaries
fixed in the manner set forth in this Constitution ” without
following the procedures laid down in the Constitution . A
decision of the International Court of Justice would modify ipso

facto the land and maritime boundaries .

This automatic modification is inadmissible because the
Constitution gives a Constitutional rank to the boundaries drawn
by virtue of the treaties prior to 1991 . Those are the boundaries
referred to in the first paragraph of Article 101, v .gr ., “the
boundaries fixed in the manner set forth by this Constitution,”

which means, the boundaries that in 1991 w ere “established in

20 c) The existence of any fact which, if established,
would constitute the breach of an international
obligation;

d) The nature or extent of the reparation to be made

for the breach of an international obligation”.

The Pact of Bogotá does not contain norms related t o the
incorporation of international decisions . This is a matter left to
the domestic legislation of each State .

However, Article L creates a proceeding for the enforcement of

the International Court of Justice judgments . Article L provides:

Consultation of Ministers of Foreign Affairs to agree upon
appropriate measures to ensure the fulfillment of the judicial
decision or arbitral award .”

Therefore, at first glance, the Pact of Bogotá really per mits the
modification of the territorial and maritime boundaries of the
Colombian State without a treaty signed by the President of the

Republic and approved by the Congress of the Republic, as
established by Article 101 of the Constitution .

facto the land and maritime boundaries .

This automatic modification is inadmissible because the
Constitution gives a Constitutional rank to the boundaries drawn
by virtue of the treaties prior to 1991 . Those are the boundaries
referred to in the first paragraph of Article 101, v .gr .,“the
boundaries fixed in the manner set forth by this Constitution,”

which means, the boundaries that in 1991 w ere “established inAnnex 2

must be concluded wherein Colombia agrees with the concerned
states on the situation of the boundary , and on the rights of the
Colombian citizens affected after the judgment .

Therefore, a judgment of the International Court of Justice of
such scope cannot be automatically applied, but instead it
requires a complex process of incorporation or harmonization of
its effects along with other constitutional precepts .

This process requires the concurrence of the three branches of
public power, since the treaty, once signed by the Executive, is

approved by the Congress, and adjudged by the Constitutional
Court, before it is finally ratified by the President of the
Republic .

The first paragraph of article 101 of the Constitution provides
two sources in order to establish the boundaries of Colombia: (i)
international treaties and (ii) arbitral awards .

During the National Constituent Assembly a similar text was put
forward that included a third category of the instrument s:
international judgments . 9

In the Constitutional Gazette No . 80 it is included a letter from
the Vice- minister of External Affairs, who suggested the
following text: “The boundaries of Colombia are those that had
been fixed, or that will be hereafter fix , by international treaties

validly concluded and ratified in accordance with this
Constitution and the laws, by judgments or by arbitral awards
dully recognized .”

However, this reference to judgments was omitted in the final
text of Article 101, which only refers to awards . Thus, the
Constituent Assembly only permits the boundaries of Colombia
to be fixed by means where the State in exercise of its

sovereignty specifically consents to a new boundary . In
concluding a treaty, State’s consent is given in a direct manner
over all the terms of the treaty . In appointing arbitrators and in

9 A letter from the Vice-Minister of External Affairs, Rodrigo Pawho,
suggested the quoted text is transcribed in the Constitutional Gazette No .
80 .

22must be concluded wherein Colombia agrees with the concerned
states on the situation of the boundary , and on the rights of the
Colombian citizens affected after the judgment .

This process requires the concurrence of the three branches of
public power, since the treaty, once signed by the Executive, is

approved by the Congress, and adjudged by the Constitutional
Court, before it is finally ratified by the President of the
Republic .

The first paragraph of article 101 of the Constitution provides
two sources in order to establish the boundaries of Colombia: (i)
international treaties and (ii) arbitral awards .

During the National Constituent Assembly a similar text was put
forward that included a third category of the instrument s:
international judgments . 9

validly concluded and ratified in accordance with this
Constitution and the laws, by judgments or by arbitral awards
dully recognized .”

sovereignty specifically consents to a new boundary . In
concluding a treaty, State’s consent is given in a direct manner
over all the terms of the treaty . In appointing arbitrators and in

9 A letter from the Vice-Minister of External Affairs, Rodrigo Parwho
suggested the quoted text is transcribed in the Constitutional Gazette No .
80 .Annex 2

consent in respect of the three main asp ects: who decides, what

should be decided and which results are inadmissible .

In effect the judges are chosen by other S tates through a
procedure at the General Ass embly of the United Nations
Organization, where Colombia has little effectiveincidence .

The concrete object of the dispute is defined by the Applicant
State and then by the judges of the Court . The above, is clearly
derived from challenged article XXXI . In abstract, States submit
ipso facto to the jurisdiction of the International Court of Justice

without the respondent State being able to circumscribe the
object of the dispute, as can be gleaned from the provisions of
the challenged article . This was evident in the judgment
rendered on 19 November in the dispute between Colombia and
Nicaragua because the Court did not limit itself to decide with
respect to the sovereignty of the formations but also ruled with

regard to the maritime boundary . Neither did it focus its
judgment on the relevant area comprised in the Esguerra -
Bárcenas Treaty (waters between the Archipelago and
Nicaragua’s coast), but extended its judgment to another
relevant area located between the Archipelago of San Andrés

and Providencia and the Colombian continental coast . The
International Court of Justice not only sustained that the
Meridian 82 was not a boundary, 15 but decided to delimit the
exclusive economic zones and continental shelves . It is true that
Colombia argued against this, but it did so in light of the

previous non- appealable fact that the International Court of
Justice, notwithstanding Colombia’s objection and manifestation
that it did not recognize its jurisdiction, decided that Colombia

15
The Exchange of Notes of the Esguerra-Barcenas Treaty was also given a
constitutional rank by the 1991 Constitution . This is inpart of the
Esguerra-Barcenas treaty and besides iwas taken into account by the
Constituent Assembly as part of the “master image” of the national
territory . The limit fixed by the Exchange of Notes changed with the 2007
and 2012 judgments of the International Court of Justice, and there i s a
contradiction between the “master image” constitutionalized in 1991
through article 101 and the text of the Exchange of Note . There is a
direct contradiction between both judgments and the Exchange of Notes .
Where the Exchange of Notes establishes that the western boundary of the
Archipelago is the Meridian 82, the judgments sustain that (i) this not a
maritime limit (2007 judgment) and (ii) there is another limit (2012
judgment) .

24consent in respect of the three main asp ects: who decides, what

should be decided and which results are inadmissible .

In effect the judges are chosen by other S tates through a
procedure at the General Ass embly of the United Nations
Organization, where Colombia has little effectiveincidence .

previous non- appealable fact that the International Court of
Justice, notwithstanding Colombia’s objection and manifestation
that it did not recognize its jurisdiction, decided that Colombia

15
The Exchange of Notes of the Esguerra-Barcenas Treaty was also given a
constitutional rank by the 1991 Constitution . This is inpart of the
Esguerra-Barcenas treaty and besides iwas taken into account by the
Constituent Assembly as part of the “master image” of the national
territory . The limit fixed by the Exchange of Notes changed with the 2007
and 2012 judgments of the International Court of Justice, and there i s a
contradiction between the “master image” constitutionalized in 1991
through article 101 and the text of the Exchange of Not . There is a
direct contradiction between both judgments and the Exchange of Notes .
Where the Exchange of Notes establishes that the western boundary of the
Archipelago is the Meridian 82, the judgments sustain that (i) this not a
maritime limit (2007 judgment) and (ii) there is another limit (2012
judgment) .Annex 2

Therefore, the difference between “awards” and “judgments” is
not only technical, but has a principle of reason . The Constituent

Assembly understood it this way, hence, while it enshrined the
self-determination of the peoples as a fundamental principle of
foreign affairs (Article 9 of the Political Constitution), it
concluded that Colombia’s boundaries could not be fixed by
judgments, but only by awards and treaties .

Accordingly, when a judg ment alters Colombia’s boundaries, it
is necessary that the State in exercise of its sovereignty and in
accordance with the principle of self -determination of the
peoples, signs a new treaty to solve the problems derived from
the judgment, based on reciprocity, equity and national
convenience (Article 226 of the Political Constitution), and must
also determine the boundaries that the people of Colombia will

accept in exercise of their right to self -determination (Article 9
of the Political Constitution) . That is why the second paragraph
of Article 101 had established tha t “the boundaries fixed in the
manner set forth in this Constitution, could only be modified by
virtue of treaties approved by the Congress, duly ratified by the
President of the Republic.”

When the boundaries modified by a judgment of the
International Court of Justice had been fixed by international
instruments prior to the 1991 Constitution, the obligation to sign
a new treaty is even greater, since those boundaries where given
constitutional rank by the Constitution of 1991 .

The Constitutional Court has said that the first paragraph is not
an open and undetermined reference to treaties, but specifically
to the treaties that by 1991 had already stipulated Colombia’s
boundaries . In the judgment concerning the treaty on the
maritime boundaries with Honduras, signed in 1986 but ratified

in 1999, the Court sustained:

“It is clear that the Constituent Assembly had a “master
image” of what the consolidated Colombian territory
was . T herefore, while noting that the continental and
insular territory is part of Colombia, as well as the
diverse maritime components, the subsoil and the space,

the Constitutional Charter wanted to preserve the

26Therefore, the difference between “awards” and “judgments” is
not only technical, but has a principle of reason . The Constituent

in 1999, the Court sustained:

the Constitutional Charter wanted to preserve theAnnex 2

For re17ons of legislative technique, in the Constitution of
1886 the specific reference to each treaty was not included, as
derived from the paper regarding international relations
presented by the constituents Arturo Mejía Borda, Guillermo

Plazas Alcid, Mig uel Santamarí a Dávil18 Aldredo Vásquez
Carrizosa and Fabio de Jesús Villar . From the aforementioned
follows that the expression “international treaties approved by
the Congress, dully ratified by the President of the Republic”
refers, among others, to the Bárcenas- Esguerra treaty from 1928
19
and the exchange of notes of 1930 . Additionally it can be
derived that article 101 refers to this treaty as it was interpreted
by the Republic of Colombia in 1991 . Namely, including the
sovereignty of Colombia over all the maritime formations and
the maritime delimitation made over the meridian 82 .

The Court has also indicated the way to modify those
boundaries . Although a treaty is required in all cases, the way in
which it is approved is diff erent depending on whether i t is a

cession of Colombian spaces or a demarcation of uncertain
areas .

In the above-mentioned judgment, it was held that any treaty of
boundaries implying a cession of territory instead of a

clarification of uncertain boundaries would require an
international treaty approved by Colombia by means of a
constitutional reform . For the Court, only the treaties that do not
imply assignment of territory, but the demarcation of uncertain

areas, such as the delimitation treaty between Colombia and
Honduras, could be approved through a law .

17 Article 3, modified by Legislative Act 1 of 1936 used to say: “[…] With
Venezuela, those defined in the arbitral award rendered by the
government of the King of Spain on 16 March 1891 and in the treaty of 5
April 1941; with Brazil, those defined in the treaties of 24 April 1907 and
15 November 1928; with Peru, those defined in the treatof 24 March
1922; with Ecuador, those defined in the treaty of 15 July 1916, and with
Panama, those defined in the treaty of 20 August 1924 .”
18 Constitutional Gazette, No . 68 .
19 See, for example, the reference to this Treaty in the paper presented by

the constituent Gustavo Zafra Roldán, Constitutional Gazette No . 80 .

28For r17sons of legislative technique, in the Constitution of
1886 the specific reference to each treaty was not included, as
derived from the paper regarding international relations
presented by the constituents Arturo Mejía Borda, Guillermo

The Court has also indicated the way to modify those
boundaries . Although a treaty is required in all cases, the way in
which it is approved is diff erent depending on whether i t is a

cession of Colombian spaces or a demarcation of uncertain
areas .

In the above-mentioned judgment, it was held that any treaty of
boundaries implying a cession of territory instead of a

areas, such as the delimitation treaty between Colombia and
Honduras, could be approved through a law .

the constituent Gustavo Zafra Roldán, Constitutional Gazette No . 80 .Annex 2

to be approved domestically by the proceedings of
constitutional reform enshrined in the Charter .”

The third paragraph of article 101 went beyond . It expressly
included the Archipelago of San Andrés , Providencia and Santa
Catalina and all its formations within Colombia’s territory . It
clearly states:

“In addition to the continental territory, the Archipelago
of San Andrés, Providencia, Santa Catalina and Malpelo,
form part of Colombia, along with to the islands, islets,
keys, headlands and banks that belong to it .”

As stated by the Constitutional Court, “a careful examination of
the antecedents of article 101 of the Chart er shows that the
Constituents did not pretend to entirely delegate to the treaties
the delimitation of the Colombian territory . Their discussion
rather presupposed a very precise and developed idea of what
this territory comprised .”21Within that “precise and developed”

idea was the composition of the Archipelago . For example, in
the paper of the Constituent Cornelio Reyes, the different cays
were mentioned by name, as well as the maritime limits of the
Archipelago:

“The Archipelago o f San Andrés and Providencia is
undoubtedly the most important insular territory of
Colombia . Its strategic location, racial singling, touristic
wealth, imposes on Colombians a special attention over
its destiny .
Located between the parallels of latitude n orth 12º and

16º, and the meridians of longitude west 78º and 82º, at a
distance of 750 Km . from Cartagena, 200 from the
eastern Central American Coast and 400 from the
southwest of Jamaica, represents and advantage for our
country in the west side of the Caribbean, opposed to the
Mosquito coast, in Nicaragua, territory that used to be

part of Colombia .
The Archipelago comprises the islands of San Andrés,
Providencia, Santa Catalina and the Roncador, Serrana,
Quitasueño, Albuquerque, the ESE and Bajo Nuevo

21
Ibíd .

30 to be approved domestically by the proceedings of
constitutional reform enshrined in the Charter .”

part of Colombia .
The Archipelago comprises the islands of San Andrés,
Providencia, Santa Catalina and the Roncador, Serrana,
Quitasueño, Albuquerque, the ESE and Bajo Nuevo

21
Ibíd .Annex 2

In Judgment C -045 of 1994, the Court declared constitutional
the treaty with Jamaica . Among the important aspects of this
Judgment, it is worth highlighting three: (i) the Court

specifically verified that such treaty respected the sovereignty of
Colombia over the Archipelago . (ii) The Court considered that
the rights of Colombia over the Archipelago fall not only over
the insular formations but also over the “corresponding maritime
areas” . (iii) The Court underlined that the rights over the
maritime areas “are not transferable” to third states .

The Court confirmed that

“Another important and novel aspect of the treaty is the
one contained in article 3 which establishes a Joint
Regime Area delimited by a polygonal . This procedure
has been used in several opportunities by other States . In

the cited Area both countries agree to establish a zone of
joint administration, control, exploration and exploitation
of the living and non- living resources . The rights
recognized there are not transferable to third States or to
International Organizations .

From the Joint Regime Area described above it is
excluded the 12 miles of territorial sea which go around
the Keys of Serranilla and Bajo Nuevo and that the
Colombian State possesses in accordance with
international law by reason of its natural co ndition of
coastal State . Said miles, for all effects, are to be

considered a prolongation of the territory and, in those ,
therefore, it exercises in full its sovereignty and
jurisdiction . The measurement of the extension of the
mentioned territorial sea is done from the Colombian
lighthouses which are located in the cited keys .” 23

The Court declared constitutional the treaty because it was in
accordance with articles 9 and 101 of the Constitution:

“Besides, the National Government has acted in
compliance with the provisions of article 9o . of the
Political Constitution , in conducting the celebration of

23
Judgment C-05 of 1994, Judge Hernando Herrera Vergara .

32In Judgment C -045 of 1994, the Court declared constitutional
the treaty with Jamaica . Among the important aspects of this
Judgment, it is worth highlighting three: (i) the Court

The Court confirmed that

The Court declared constitutional the treaty because it was in
accordance with articles 9 and 101 of the Constitution:

“Besides, the National Government has acted in
compliance with the provisions of article 9o . of the
Political Constitution , in conducting the celebration of

23
Judgment C-05 of 1994, Judge Hernando Herrera Vergara .Annex 2

they do not have constitutional status, they cannot be modified
by means of laws and are a parameter for the control of
constitutionality:

“By way of an express remission made by article 101 of

the Constitution to those, the treaties which define
boundaries of the Colombian territory are part to the
block of constitutionality lato sensu, and, therefore, the
rules enacted by public authorities cannot contra vene
them because of the risk of being declared
unconstitutional for violating article 101 of the Superior
Statute . Nonetheless, it is worth clarifying that, even

when these become a parameter to effectuate the control
of constitutionality of laws, the tre aties on boundaries do
not have constitutional status but a normative level
similar to the organic and statutory laws, that is, they
hold an intermediate hierarchy among the Constitution
and ordinary laws . In this sense, the laws enacted by the
Congress of the Republic cannot modify what is stated in

the above -mentioned international agreements, whose
content can only be altered by the signing of another
treaty which expressly modifies them, as can be deduced
of what is contained in article 101 paragraph se cond of
the Charter .”

Amongst those treaties the Court considered that there are two

types: (i) the bilateral treaties on delimitation and (ii) the
multilateral treaties which establish general rules to carry out
delimitations . The Court said:

“Certainly, in public international law it is possible to
distinguish between two types of conventional
instruments related to the territorial boundaries of States .

On one hand, is possible to find those treaties which, in a
specific way, establish the geographical boundarie s
which separate one particular country of those others
with which it has boundaries or those which specifically
define the marine and submarine areas of each State . On
the other hand, it is possible to identify those
international instruments, us ually of a multilateral

character, by means of which the international
community establishes the general rules that must guide

34they do not have constitutional status, they cannot be modified
by means of laws and are a parameter for the control of
constitutionality:

“By way of an express remission made by article 101 of

Amongst those treaties the Court considered that there are two

types: (i) the bilateral treaties on delimitation and (ii) the
multilateral treaties which establish general rules to carry out
delimitations . The Court said:

“Certainly, in public international law it is possible to
distinguish between two types of conventional
instruments related to the territorial boundaries of States .

character, by means of which the international
community establishes the general rules that must guideAnnex 2

the aim of protecting the territorial sea to which this key has a

right to” .

The third reason was that the treaty “endorses internationally
the incontrovertible rights of Colombia over the San Andrés,
Providencia and Santa Catalina Archipelago, and the islands,

islets and keys which compose it, as well as the maritime
jurisdiction which they generate” .

The fourth reason was that, although the treaty had not been
ratified, it had been implemented by the parties: “the boundaries

set forth in the present treaty, even though they had not been
consolidated before international law, due to the fact that the
agreement had not been ratified, were nonetheless being applied
in reality, without the Constituent Assembly objecting at all to
the development of this agreement” . The fifth reason was that
“the process of demarcation in itself was carried out based on

equitable principles” .

For these reasons, the Court concluded that “the maritime
demarcation provided in article 1° of the treaty does not ignore
the established territorial rights of Colombia” . Among those

established territorial rights, the Court specifically included (a)
the territory of the keys and the territorial sea . It also referred, in
general terms, to (b) “the maritime jurisdiction they generate” .
The Court further considered that (c) within the keys that are
part of the archipelago, as a unity, are Seranilla and Bajo Nuevo

and, therefore, a treaty cannot disregard the sovereignty of
Colombia over those maritime formations without disregarding
article 101 of the Constitution .

3.3 Summary of the doctrine prohibit ing automatic

incorporation of judgments that modify territorial or
maritime boundariesof Colombia.

In summary, the doctrine prohibiting automatic incorporation of
judgments that modify territorial or maritime boundarie s of

Colombia is supported on the following jurisprudential articles
and sub-rules:

- The second paragraph of article 101 of the Constitution
does not contemplate judgments as instruments capable

36the aim of protecting the territorial sea to which this key has a

right to” .

The third reason was that the treaty “endorses internationally
the incontrovertible rights of Colombia over the San Andrés,
Providencia and Santa Catalina Archipelago, and the islands,

islets and keys which compose it, as well as the maritime
jurisdiction which they generate” .

The fourth reason was that, although the treaty had not been
ratified, it had been implemented by the parties: “the boundaries

equitable principles” .

For these reasons, the Court concluded that “the maritime
demarcation provided in article 1° of the treaty does not ignore
the established territorial rights of Colombia” . Among those

and, therefore, a treaty cannot disregard the sovereignty of
Colombia over those maritime formations without disregarding
article 101 of the Constitution .

3.3 Summary of the doctrine prohibit ing automatic

incorporation of judgments that modify territorial or
maritime boundariesof Colombia.

In summary, the doctrine prohibiting automatic incorporation of
judgments that modify territorial or maritime boundarie s of

Colombia is supported on the following jurisprudential articles
and sub-rules:

- The second paragraph of article 101 of the Constitution
does not contemplate judgments as instruments capableAnnex 2

They did not separate, either, the islands in the

archipelagic sea . Besides, they impede the transfer of
“rights” over the maritime areas corresponding to the
Archipelago . Therefore, a reduction in the rights over the
continental shelf and the exclusive economic zone is, for
the Colombian constitutional law, a reduction of the

constitutionally protected space or, a transfer of rights in
a way excluded by the Constitution .

These conclusions have enormous significance . It is not a
theoretical issue about the meaning of the Constitution . As it is

of public d25ain, the International Court of Justice issued two
judgments about the dispute between Nicaragua and Colombia
which produce a contradic tion with the Constitution, as a
minimum with regard to three elements: (i) the y do not
recognize the boundary at the meridian 82 and, therefore,
constitute a modification of the boundaries of Colombia in a

way prohibited by the Charter; (ii) they transfer to Nicaragua
rights of Colombia over maritime areas which only Colombia
can regulate by means of a treaty based on reciprocity and
equity; and (ii) they draw a new maritime boundary betwee n the
two States without the consent of the Colombian people through

their representatives in exercise of their sovereignty and right to
self-determination .

This modification to the maritime boundaries of the Colombian
State, with the subsequent reduction of the rights of Colombia

and the affectation of its maritime areas in the Archipelago,
without following the procedure provided in the Constitution to
modify the existing boundaries, is prohibited by article 101 of
the Constitution, in accordance with a rticles 3 and 9 of the
Charter .

25
The judgment of 19 November 2012 of the International Court of Justice
referred to the dispute between Colombia and Nicaragua with regard to
the sovereignty over the Archipelago of SanAndrés, Providencia and
Santa Catalina and to the maritime boundary between continental shelves
and exclusive economic zones of both States . The judgment of 13
December 2007 of the same Court advised that the EsguerraBarcenas
Treaty and its Exchange of Notes had no fixed a maritime boundary
between both countries and that meridian 82 was only a criterion for
assignment of the island .

38 They did not separate, either, the islands in the

constitutionally protected space or, a transfer of rights in
a way excluded by the Constitution .

These conclusions have enormous significance . It is not a
theoretical issue about the meaning of the Constitution . As it is

their representatives in exercise of their sovereignty and right to
self-determination .

This modification to the maritime boundaries of the Colombian
State, with the subsequent reduction of the rights of Colombia

situation created by the change of boundarie s between states . It

does not permit the States, for example, to sign a treaty to solve
their differences after the judgment .

Article L orders that the sentence of the International Court of

Justice be automatically fulfilled because it establishes that “ if
one of the High Contracting Parties should fail to carry out the
obligations imposed upon it by a decision of the International
Court of Justice or by an arbitral award, the other party or
parties concerned shall, before resorting to the Security Council

of the United Nations, propose a Meeting of Consultation of
Ministers of Foreign Affairs to agree upon appropriate
measures to ensure the fulfilment of the judicial decision or
arbitral award .”

Hence, the contradiction between constitutional provisions and
those articles of the Pact of Bogotá incorporated by Law 37 of
1961 is evident . While the latter allow the International Court of
Justice to modify the land and maritime boundaries of

Colombia, article 101 of the Constitution clearly states that “ the
boundaries identified in the form provided for by this
Constitution may only be modified by tr eaties approved by the
Congress, duly ratified by the President of the Republic” .

The contradiction is aggravated in the event that a treaty in force
in 1991 had fixed a land or maritime boundary . Such boundary
was constitutionalized by the Constituent Assembly, as the
Constitutional Court has reiterated . Therefore, the automatic

incorporation of a judgment modifying such boundary or
affecting the waters corresponding to the Colombian territory,
would imply a modification in fact to the Constitution outside of
the procedure established therein .

The boundaries of Colombia and its rights over the maritime
areas can only be modified by means of a treaty . They cannot be
modified by any other means . The challenged articles allow it to
happen through a judgment of the International Court of Justice .
Consequently, they are unconstitutional because they permit

what the Constitution prohibits .

This contradiction emerged with the enactment of the
Constitution of 1991 . This is a “ supervening

40situation created by the change of boundarie s between states . It

does not permit the States, for example, to sign a treaty to solve
their differences after the judgment .

Article L orders that the sentence of the International Court of

of the United Nations, propose a Meeting of Consultation of
Ministers of Foreign Affairs to agree upon appropriate
measures to ensure the fulfilment of the judicial decision or
arbitral award .”

what the Constitution prohibits .

This contradiction emerged with the enactment of the
Constitution of 1991 . This is a “ superveningAnnex 2

Nonetheless, beyond being a mere power available to States,

there are instances in which the signing of a treaty or the
commencement of negotiations between the parties are
necessary mechanisms to be able to apply or execute a judgment
of the ICJ in a contentious case . In the field of delimita tion of

maritime and land boundaries between States, this has occurred
in two types of cases .

A first type of cases are those in which the parties do not ask the
ICJ to define a boundary between the States as such, but simply

request that it indicates the principles and rules applicable for
said delimitation . In these cases, it is evident that the Parties
must resort to negotiation after the judgment in order to apply it,
following the principles and rules indicated by the ICJ . This was
the case in the judgments concerning the continental shelf in the

North Sea between Ge28any, Denmark and The Netherlands
(rendered in 1969) , as well as in the judgments concerning the
delimitation of the continental shelf between Tunisia and Libya
–rendered in 1982- 29and between Libya and Malta - rendered in
30
1985- . In all these cases, the parties had to sign subsequent
treaties to agree on the delimitation of the boundary between the
States . Hence, Germany signed treaties with The Netherlands
and Denmark on 28 January 1971, to delimit their respective
continental shelves, while Tunisia and Libya did the same on 8

August 1988, and Libya and Malta on 10 November 1986 .

A second type of cases are those in which the ICJ has defined
the precise boundary between the parties to a contentious case,

but the application of such judgments has demanded in any case
the signing of treaties or other kinds of interstate agreements . As
will be seen further below, the signing of treaties or other kinds
of interstate agreements in order to apply an ICJ judgment
which defines boundaries becomes necessary when practical

difficulties for the implementation persist notwithstanding the
judgment and it is common practice when there are other
interests of the States that are affected by the judgment a nd that

28 North Sea Continental Shelf Cases (Germany v. Denmark) (Germany v.
The Netherlands). Judgment, I.C.J. Reports 1969.
29 Continental Shelf (Tunisia/Libya). Judgment, I.C.J. Reports 1982.
30 Continental Shelf (Libyan Arab Jamahiriya / Malta). Judgment, I.C.J.

Reports 1985.

42Nonetheless, beyond being a mere power available to States,

maritime and land boundaries between States, this has occurred
in two types of cases .

A first type of cases are those in which the parties do not ask the
ICJ to define a boundary between the States as such, but simply

August 1988, and Libya and Malta on 10 November 1986 .

A second type of cases are those in which the ICJ has defined
the precise boundary between the parties to a contentious case,

difficulties for the implementation persist notwithstanding the
judgment and it is common practice when there are other
interests of the States that are affected by the judgment a nd that

Reports 1985.Annex 2

In second place, in the case concerning the Land, Island and
32
Maritime Frontier between El Salvador and Honduras,
rendered in 1992, the parties affected by the judgment later
signed a treaty . In this case, both parties submitted to the
decision of the ICJ the precise delimitation of their maritime,
island and land frontiers where they had not been able to reach a

bilateral agreement . In its judgment the ICJ assigned part of the
territory in dispute to El Salvador and another part to Honduras .
However, after the judgment was rendered, difficulties persisted
in tw o aspects . Firstly, there were problems regarding the
demarcation of the frontier and, secondly, serious questions

arose about the rights of the citizens of both States that due to
the change of boundaries were now subject to the jurisdiction of
a different State than their own . As a result of these drawbacks,
both States sign ed two treaties on 19 January 19 98 . The object
of the first one was the execution of the program for the
demarcation of the boundary and the second was an agreement

to regulate the nationality and the rights acquired by the
populations affected by the change of boundaries .

A third relevant example is the case concerning the Territorial
Dispute 33 between Libya and Chad, rendered in 1994 . In this

case, the ICJ ruled that the area in dispute between both States
and currently occupied by Libya belonged to the territory of
Chad, and defined the existing boundaries between the two
States . However, serious difficulties in the implementation o f
the judgment led the parties to sign a treaty on 4 April 1994 .

This treaty defined the rules for the withdrawal of the civilian
authorities and military forces of Libya from the territory
assigned to Chad, the removal of anti -personnel mines from the
territory, the definition of the crossing points for people and
properties along the boundary , the joint monitoring of the

frontier and its demarcation, among other issues . As is evident,
the ICJ judgment had not addressed several topics of enormous
relevance for the protection of the rights of the inhabitants of
Libya and Chad, hence it was necessary to sign a treaty which
resolved this matters, instead of automatically executing the

32
Land, Island and Maritime Frontier Dispute (El Salvador / Honduras).
33 Judgment, I.C.J. Reports 1992.
Territorial Dispute (Libyan Arab Jamahiriya / Chad). Judgment, I.C.J.
Reports 1994.

44In second place, in the case concerning the Land, Island and
32
Maritime Frontier between El Salvador and Honduras,
rendered in 1992, the parties affected by the judgment later
signed a treaty . In this case, both parties submitted to the
decision of the ICJ the precise delimitation of their maritime,
island and land frontiers where they had not been able to reach a

to regulate the nationality and the rights acquired by the
populations affected by the change of boundaries .

A third relevant example is the case concerning the Territorial
Dispute 33 between Libya and Chad, rendered in 1994 . In this

32
Land, Island and Maritime Frontier Dispute (El Salvador / Honduras).
33 Judgment, I.C.J. Reports 1992.
Territorial Dispute (Libyan Arab Jamahiriya / Chad). Judgment, I.C.J.
Reports 1994.Annex 2

Finally, it is important to allude to the case concerning the Land
and maritime boundary between Cameroon and Nigeria 35
decided in 2002 . Here, the Court adjudicated sovereignty over

the peninsula under dispute (Bakassi) to Cameroon and fixed
boundaries between both countries, even though such peninsula
appeared as part of the Nigerian territory in the Constitution of
that State . Moreover, the judgment supposed great difficulties in
its implementation due to the need to dismantle an
administrative system and replace it with another one and

because the change in the sovereignty for the population in the
peninsula created great political and legal tensions and affected
the rights of the inhabitants of the peninsula and their relatives .
Although Nigeria initially rejected the judgment, the mediation
of the United Nations made it possible for both parties to initiate
a gradual process to transfer the territory , which finally
concluded with the signing of a treaty on 12 June 2006 . In this

treaty it was contempl ated the transfer of sovereignty over the
territory, the total withdrawal of Nigerian troops from the same
and it create an special legal system for the Nigerians who lived
in the territory transferred to Cameroon in order to protect their
rights .

The foregoing cases are cited to simply illustrate the possibility,
allowed by international law, to sign treaties to address those
matters adjudged or related to the rulings in ICJ judgments .
These cases show that when the enforcement of an ICJ
judgment, which has modified land or maritime boundaries ,
presupposes legal and practical difficulties, international law

allows the litigating parties to reach agreements in order to
regulate their rights, protect their inhabitants and delimit their
boundaries after the judgment under the form of an international
treaty . Likewise, whenever the judgment affects the interests of
the population and the exercise of the rights of the inhabitants of
the respective States, the parties in different continents, instead

of automati cally complying with the judgment, have reached
agreements which permit them to safeguard the rights of their
inhabitants and promote the interests of t heir nationals . In some
cases the treaty has established boundarie s different from those
drawn by the ICJ, which is acceptable under international law .

35
Land and Maritime Boundary between Cameroon and Nigeria (Nigeria v.
Cameroon). Judgment, I.C.J. Reports 2002.

46Finally, it is important to allude to the case concerning the Land
and maritime boundary between Cameroon and Nigeria 35
decided in 2002 . Here, the Court adjudicated sovereignty over

35
Land and Maritime Boundary between Cameroon and Nigeria (Nigeria v.
Cameroon). Judgment, I.C.J. Reports 2002.Annex 2

“Should the Court declare them constitutional, the
government may engage in a diplomatic exchange of
notes; on the contrary, they will not be ratified. When

one or several pr ovisions of a multilateral treaty are
declared unconstitutional by the Constitutional Court,
the President of the Republic may only express his
consent by formulating the corresponding reservation.”

Since the Pact of Bogotá was already ratified by Colombia

several decades ago, it is not possible to apply the rule according
to which “the President of the Republic may only express his
consent by formulating the corresponding reservation.” This
rule does not apply simply becaus e it regulates a different
situation, that is, the previous constitutional control .

The foregoing does not prevent the Constitutional Court to

declare the challenged provisions unconstitutional . One thing is
the procedure to be followed after the unconsti tutionality
judgment and a very different one is the exercise of the
competence of the Constitutional Court as guardian of the
supremacy of the Constitution . This competence can be fully
exercised . It will correspond to the Executive to resort to

diplomatic channels to fulfil the judgement of the Constitutional
Court .

However, if the Constitutional Court decides that the declaration
of unconstitutionality must produce immediate internal legal
effects for the national organs it can indicate so . In this order of

ideas, with the deepest respect it is suggested that the Court ,
additionally to indicating the unconstitutionality of the
challenged provisions , specifies the effects of its judgment
warning that if a judgment from the International Court of
Justice affects the land of maritime boundaries recognized by
the Constitution by virtue of treaties in force, a new treaty must

be concluded which has to be approved by means of a legislative
act modifying article 101 of the Constitution .

6. Notifications

I will receive notification at Carrera 8 No . 7 -26, Nariño Palace .

Respectfully,

48 “Should the Court declare them constitutional, the
government may engage in a diplomatic exchange of
notes; on the contrary, they will not be ratified. When

Since the Pact of Bogotá was already ratified by Colombia

The foregoing does not prevent the Constitutional Court to

diplomatic channels to fulfil the judgement of the Constitutional
Court .

However, if the Constitutional Court decides that the declaration
of unconstitutionality must produce immediate internal legal
effects for the national organs it can indicate so . In this order of

be concluded which has to be approved by means of a legislative
act modifying article 101 of the Constitution .

6. Notifications

I will receive notification at Carrera 8 No . 7 -26, Nariño Palace .

Respectfully,50 Annex 3

PRESIDENTIALDECREE NO . 194OF2013,TERRITORIALSEA,
CONTIGUOUS ZONE AND CONTINENTAL SHELF OF THE
C OLOMBIAN SLANDS TERRITORIES IN THW ESTERN

CARIBBEAN, 9EPTEMBER 2013

(Available at:
http://wsp.presidencia.gov.co/Normativa/Decretos/2013/Documents/

SEPTIEMBRE/09/DECRETO%201946%20DEL%2009%20DE%20
SEPTIEMBRE%20DE%202013.pdf (last visited 15 Dec. 2013))

5152 Annex 3

PRESIDENCY OF THE REPUBLIC

DECREE NUMBER 1946 OF 2013

(9 SEPTEMBER 2013)

Regulating Articles 1, 2, 3, 4, 5, 6 and 9 of Law 10/1978 and

Articles 2 and 3 of Law 47/1993, concerning territorial seas, the
contiguous zone, certain aspects of the continental shelf of the
Colombian island territories in the Western Caribbean, and the
integrity of the Department of the archipelago of San Andrés,
Providencia and Santa Catalina .

THE PRESIDENT OF THE REPUBLIC OF COLOMBIA

in exercise of his powers under the Constitution of the role, in
particular those conferred by section 189 .11 Constitution, and
further to the terms of tools 10/1978 and 47/1993

WHEREAS

Article 101 of the Constitution states that "in addition to the
mainland territory, the Archipelago of San Andrés , Providencia
and Santa Catalina and Malpelo, and the islands, islets, cays,
shoals and banks which belong to it form part of Colombia"

The same Article states that "The subsoil, territorial seas, the
contiguous seven, the continental shelf, the exclusive economic
zone, the segment of the geostationary orbit, the electromagnetic
spectrum and the space in which it acts are also part of
Colombia, in accordance with international law or with
Colombian law in the absence of international law" .

Article 309 of the Constitution made the Intendancy of "the
Archipelago of San Andrés, Providencia and Santa Catalina" a
Department, establishing that "the goods and rights which
belong belonged on any title to the intendancies and
commissaries will continue to be the property of the respective
Departments" .

53Annex 3

Article 310 of the Constitution states that "the Department
Archipelago of San Andrés, Providencia and Santa Catalina will
also be governed by the rules provided in the Constitution and
the law for other Departments, by special rules in matters of
administration, immigration, f iscal management, foreign trade,

exchange, finance and economic development as established in
the Law ."

Law 47/1993 establishes [Article 3] that the territory of the
Department Archipelago of San Andrés , Providencia and Santa
Catalina is formed by the islands of San Andrés , Providencia
and Santa Catalina, and the cays of Albuquerque, East

Southeast, Roncador, Serrana, Quitasueño, Bajo Nuevo and the
Banks of Serranilla and Alicia and other islands, islets, cays,
shoals, banks and reefs which form the former Special
Intendancy of San Andrés and Providencia .

Article 2 of Law 47/1993 recognizes the territorial, cultural,
administrative, economic and political unity of the Archipelago,

stating that "the Department Archipelago of San Andrés ,
Providencia and Santa Catalina is a territorial entity created by
the Constitution, and as such, enjoys autonomy for the
management of its interests within the limits of the Constitution
and the law, with the right to govern itself through its own
authorities; to exercise the competencies related to that, to
participate in national revenues, to manage its resources and to

establish such taxation as may be necessary for it to perform its
functions" .

Law 10/1978, Article 9 establishes that the Government will
proceed to indicat e lines based on which the various maritime
spaces of which the Colombian nation exercises sovereignty in
the Department Archipelago of San Andrés , Providencia, and

other island territories, including sovereign rights and
jurisdiction in accordance with in ternational common law, and
orders that these be published in the official maritime charts, in
accordance with international norms on the matter .

In furtherance of the terms of Article 101 of the Constitution and
Law 10/1978, seen in the light of the term s of the Constitution,

it is the duty of the State to establish the extent of territorial seas
and the contiguous zone that are generated that is generated by

54Article 310 of the Constitution states that "the Department
Archipelago of San Andrés, Providencia and Santa Catalina will
also be governed by the rules provided in the Constitution and
the law for other Departments, by special rules in matters of
administration, immigration, f iscal management, foreign trade,

exchange, finance and economic development as established in
the Law ."

Article 2 of Law 47/1993 recognizes the territorial, cultural,
administrative, economic and political unity of the Archipelago,

establish such taxation as may be necessary for it to perform its
functions" .

In furtherance of the terms of Article 101 of the Constitution and
Law 10/1978, seen in the light of the term s of the Constitution,

it is the duty of the State to establish the extent of territorial seas
and the contiguous zone that are generated that is generated byAnnex 3

[A] San Andrés
[B] Providencia
[C] Santa Catalina
[D] Cays of Albuquerque
[E] Cays of Southeast

[F] Cays of Roncador
[G] Cays of Serrana
[H] Cays of Quitasueño
[I] Cays of Serranilla
[J] Cays of Bajo Nuevo
[K] Other islands, islets, cays, shoals, banks, elevations at low
tide, shallows and reefs adjacent to each of these islands, and

which form the Department Archipelago of San Andrés and
Providencia .

3 . The Republic of Colombia exercises sovereignty over the
island territories, and exercises jurisdiction and sovereign rights
over the maritime spaces generated by them, in the terms
prescribed by international law, by the Constitution, by Article

10/1978, and by this Decree Law .

Article 2 . MARITIME SPACES GENERATED BY THE
ISLAND TERRITORIES OF COLOMBIA IN THE
WESTERN CARIBBEAN SEA

In accordance with Article 101 of the Constitution, international

common law and Law 10/1978 and Law 47/1993, the territorial
seas, the contiguous zone, the continental shelf and the exclusive
economic zone generated by the island territories in the Western
Caribbean Sea are part of Colombia .

The continental shelf in the exclusive economic zone generated
to the east by the island territories of Colombia in the Caribbean

Sea are superimposed on the continental shelf and the exclusive
economic zone generated to the northwest by the Colombian
Atlantic Coast .

Article 3 . BASELINES ON THE ISLAND TERRITORIES
IN THE WESTERN CARIBBEAN SEA

1 . In furtherance of the terms of Law 10/1978, the Government
will indicate the points and baselines for which the width of

56[A] San Andrés
[B] Providencia
[C] Santa Catalina
[D] Cays of Albuquerque
[E] Cays of Southeast

which form the Department Archipelago of San Andrés and
Providencia .

10/1978, and by this Decree Law .

Article 2 . MARITIME SPACES GENERATED BY THE
ISLAND TERRITORIES OF COLOMBIA IN THE
WESTERN CARIBBEAN SEA

In accordance with Article 101 of the Constitution, international

The continental shelf in the exclusive economic zone generated
to the east by the island territories of Colombia in the Caribbean

Sea are superimposed on the continental shelf and the exclusive
economic zone generated to the northwest by the Colombian
Atlantic Coast .

Article 3 . BASELINES ON THE ISLAND TERRITORIES
IN THE WESTERN CARIBBEAN SEA

1 . In furtherance of the terms of Law 10/1978, the Government
will indicate the points and baselines for which the width ofAnnex 3

through its territorial sea will be subject to prior authorization of
the competent authorities of the Republic of Colombia .

PARAGRAPH. For the purposes of this Decree and in
accordance with the terms of Article 1 of Law 10/1978, it will

be understood that he nautical mile is equal to 1 .852 km .

Article 5 . THE CONTIGUOUS ZONE OF THE ISLAND
TERRITORIES IN THE WESTERN CARIBBEAN SEA.

1 . Without prejudice to the terms of Section 2 of this Article, the
Contiguous Zone of the island territories of Colombia in the

Western Caribbean Sea extends up to a distance of 24 nautical
miles measured from the baselines referred to in Article 3 above .

2 . The Contiguous Zones adjacent to the territorial sea or the
islands which form the island territories of Colombia in the
Western Caribbean Sea, except for the islands Serranilla and
Bajo Nuevo, where they intersect, genera te an uninterrupted

Contiguous Zone, across the whole of the Department of the
Archipelago of San Andrés , Providencia and Santa Catalina,
over which the competent national authorities will exercise the
powers recognized by international law and Colombian l aws
mentioned in set Section 3 of this Article .

In order to secure the proper administration and orderly

management of the entire Archipelago of San Andrés ,
Providencia and Santa Catalina, and of their islands, cays and
other formations and their maritime areas and resources, and in
order to avoid the existence of irregular figures or contours
which would make practical application difficult, the lines
indicated for the outer limits of the Contiguous Zones will be
joined to each other through geodesic line s . In the same, these

will be linked to the contiguous zone of the island of Serranilla
by geodesic lines which conserve the direction of the parallel
14° 59´ 08”N, and, to Meridian 79° 56´ 00” W, and thence to the
North, thus forming a n Integral Contiguous Zone of the
Department Archipelago of San Andrés , Providencia and Santa
Catalina .

3 . In furtherance of terms of the preceding Paragraph, in the
Integral Contiguous Zone established in this Article, the

58through its territorial sea will be subject to prior authorization of
the competent authorities of the Republic of Colombia .

PARAGRAPH. For the purposes of this Decree and in
accordance with the terms of Article 1 of Law 10/1978, it will

be understood that he nautical mile is equal to 1 .852 km .

Article 5 . THE CONTIGUOUS ZONE OF THE ISLAND
TERRITORIES IN THE WESTERN CARIBBEAN SEA.

1 . Without prejudice to the terms of Section 2 of this Article, the
Contiguous Zone of the island territories of Colombia in the

Western Caribbean Sea extends up to a distance of 24 nautical
miles measured from the baselines referred to in Article 3 above .

In order to secure the proper administration and orderly

3 . In furtherance of terms of the preceding Paragraph, in the
Integral Contiguous Zone established in this Article, theAnnex 3

Article 7 . THE RIGHTS OF THIRD STATES

None of the content of this Decree will be understood to affect
or limit the rights and obligations derived from the "Treaty on
maritime delimitation between the Republic of Colombia and

Jamaica" signed between the States on the 12 November 1993,
nor will it affect or limit the rights of other states .

ARTICLE 8 .EFFECTIVE DATE

This Decree will take effect from the date of its issue, and
repeals all norms and regulations contrary to it

BE THIS PUBLISHED, COMMUNICATED AND
OBEYED

Given in Bogotá on 9 September 2013

[Signed]

FERNANDO CARRILLLO-FLOREZ

Minister of Interior

MARIA ANGELA HOLGIUÍN CUELLAR

Minister of Foreign Affairs

MAURICIO CÁRDENAS SANTAMARÍA
Minister of Finance

JUAN CARLOS PINZÓN BUENO
Minister of Defence

ALEJANDRO GAVIRIA URIBE
Minister of Health and Social Protection

JUAN GABRIEL URIBE VEGALARA
Minister of Environment and Sustainable Development

60Article 7 . THE RIGHTS OF THIRD STATES

None of the content of this Decree will be understood to affect
or limit the rights and obligations derived from the "Treaty on
maritime delimitation between the Republic of Colombia and

Jamaica" signed between the States on the 12 November 1993,
nor will it affect or limit the rights of other states .

ARTICLE 8 .EFFECTIVE DATE

This Decree will take effect from the date of its issue, and
repeals all norms and regulations contrary to it

BE THIS PUBLISHED, COMMUNICATED AND
OBEYED

Given in Bogotá on 9 September 2013

[Signed]

FERNANDO CARRILLLO-FLOREZ

Minister of Interior

MARIA ANGELA HOLGIUÍN CUELLAR

Minister of Foreign Affairs

MAURICIO CÁRDENAS SANTAMARÍA
Minister of Finance

JUAN CARLOS PINZÓN BUENO
Minister of Defence

ALEJANDRO GAVIRIA URIBE
Minister of Health and Social Protection

JUAN GABRIEL URIBE VEGALARA
Minister of Environment and Sustainable Development62 Annex 4

CONSTITUTIONAL COURT OF COLOMBIA

Judgment C-269/14

(Bogotá D.C., 2 May 2014)

Actio Popularis of Unconstitutionality against Articles XXXI and
L of the Law 37 of 1961, “Whereby the American Treaty on Pacific
Settlement (Pact of Bogotá) is approved .

Applicant: Juan Manuel Santos Calderon –President of the
Republic of Colombia– .
Reference: File D-9907 .

Actio Popularis of Unconstitutionality against Articles II and V
(partially) of the Law 37 of 1961, “Whereby the American Treaty

on Pacific Settlement (Pact of Bogotá) is approved .
Applicants: Juan Carlos Moncada Zapata, Jéssica Alejandra
Mancipe González y Carlos Eduardo Borrero González .
Reference: File D-9852

Actio Popularis of Unconstitutionality against Articles XXXI
(partially) and L of the Law 37 of 1961, “Whereby the American

Treaty on Pacific Settlement (Pact ofBogotá) is approved .
Applicant: Oscar Fernando Vanegas Ávila .
Reference: File D-9886 .

Judge: MAURICIO GONZALEZ CUERVO .

(…)

III. GENERAL CONCLUSION

(…)

8. The national territory and Article 101 of the Constitution

8 .1 The territory is a prerequisite of the existence of the State in
the sense that it constitutes (i) the material substratum in which

all inhabitants materialize their vital interests, (ii) the space that
determines the exercise of the competences by the public

63Annex 4

authorities, (iii) a space safeguarded against any unauthorized
external interference y (iv) the frameworks that delimits the
exercise of sovereignty .

8 .2 Such importance manifests itself in the fact that Article 101

of the Constitution clearly defines the elements comprised by
the territory . According to Article 101 the Republic of Colombia
is composed by the continental territory, the overseas territor ies
(referring to the Archipelago of San Andrés, Providencia, Santa
Catalina and the Islands of Malpelo, together with the islands,
islets, cays and banks that belong to the State) and a group of
spaces where the Colombian State exercises sovereignty,

jurisdiction and/or economic exploitation, these are: the subsoil,
the territorial sea, the contiguous zone, the continental shelf, the
exclusive economic zone, the air space, the segment in the geo-
stationary orbit, the electromagnetic spectrum and the space
where its performs .

8 .3 It is an essential goal of the State to maintain the territorial

integrity (Art . 2), as well as the obligation of its authorities to
guarantee the inviolability of the territory, extended, in the light
of the applicable rules, to each of its components .

8 .4 . The constitutional norms that define the integrating
elements of the territory or establish rules related with its
delimitation, have a special normative force due to their

essential character in the conformation of the politi cal and legal
order of the Nation . Such normative relevance has
consequences: (i) the possibility to assign general supremacy to
the constitutional norms referred to the territory with respect any
other type of norms; (ii) the presumption of unconstitutionality
of any restriction, limitation, affectation or incidents in the
mandates or prohibitions established in Article 101 – general

clause of territorial definition - . The establishment of a general
supremacy and a presumption of unconstitutionality in this
matter, bears correspondence with the jurisprudential practice of
the Court which is oriented towards the definition of stricter
parameters of interpretation whenever the examination lies over
norms that may affect significant and essential constitutional
interests .

64authorities, (iii) a space safeguarded against any unauthorized
external interference y (iv) the frameworks that delimits the
exercise of sovereignty .

8 .2 Such importance manifests itself in the fact that Article 101

8 .3 It is an essential goal of the State to maintain the territorial

integrity (Art . 2), as well as the obligation of its authorities to
guarantee the inviolability of the territory, extended, in the light
of the applicable rules, to each of its components .

8 .4 . The constitutional norms that define the integrating
elements of the territory or establish rules related with its
delimitation, have a special normative force due to their

8 .5 Boundary treaties, as rules that fix or modify the territorial
terms of Colombia, enjoy a preeminent position in the domestic
system of legal sources, in harmony with norms and principles
of international law . In this sense, frontier treaties cannot be
modified by a constitutional norm or other norm of Colombian

domestic law, and in that sense, would lack validity and effect .

8 .6 The procedure for the domestic approval of an international
treaty of boundaries is provided for in Article 150 .16 of the
Political Constitution . The allegation that there is an aggravated
procedure for the approval of treaties that modify boundaries -
and due to their “constitutionalization” a Legislative Act

modifying the Constitution is needed- , lacks any basis . What
has been in fact the object of direct constitutional prescription
are the formal sources of the current boundaries – treaties and
arbitral awards - and the instrument to modify the general
situation of the territory – treaties-, not the boundary itself,
whose fixing and process of review must be made through an
international instrument approved by the Legislative power and

completed by the national Executive .

9. Response to Charge 1°: harmonization of Article XXXI of
the Pact of Bogotá and Article 101 of the Constitution

9 .1 The American Treaty on Pacific Settlement – Pact of
Bogotá, it must reiterated, is not a treaty of boundaries just for

the fact that it recognized the jurisdiction of an international
tribunal to pronounce about such a matter, as the joint challenge
so insists . It would result contrary to the Constitution, inasmuch
as it disregards not only the scope of Article 101 of the
Constitution but also rules and doctrines of international law .

9 .2 It must be noticed, preliminarily, that the recognition by

Colombia of the jurisdiction of the International Court of Justice
does not oppose, on a general manner, the Political Constitution .
On the contrary, the jurisprudence of this Tr ibunal – the
Constitutional Court - has highlighted the importance of the
procedures of judicial settlement of disputes, by declaring the
constitutionality of international instruments in this regard . The
Court has also considered that in exercising its sovereignty,

Colombia is entitled to attribute to some international

668 .5 Boundary treaties, as rules that fix or modify the territorial
terms of Colombia, enjoy a preeminent position in the domestic
system of legal sources, in harmony with norms and principles
of international law . In this sense, frontier treaties cannot be
modified by a constitutional norm or other norm of Colombian

domestic law, and in that sense, would lack validity and effect .

completed by the national Executive .

9. Response to Charge 1°: harmonization of Article XXXI of
the Pact of Bogotá and Article 101 of the Constitution

9 .1 The American Treaty on Pacific Settlement – Pact of
Bogotá, it must reiterated, is not a treaty of boundaries just for

9 .2 It must be noticed, preliminarily, that the recognition by

Colombia is entitled to attribute to some internationalAnnex 4

provision that may restrict, limit, affect or hinder in the scope of
its mandate .

9 .5 The rule defined in Decision C -400 of 1998, suggests as
alternatives to the normative conflict, either the modification of

the international instrument in a manner that does not oppose the
Constitution –through corresponding legal procedures -, or the
adoption of the measures of domestic law that make possible to
overcome the contradiction . In each situation, it corresponds to
the competent political authorities –and not the Constitutional
Court- to determine the procedure to follow . In any case, the
exclusion from the domestic legal order of those international

norms that are contrary to the former, are incapable of directly
impacting the content of the international obligation or the
international nexus .

9 .6 The constitutional duty to harmonize the challenged
conventional international clauses with Article 101 of the
Constitution emerges from: (i) the constitutional status both of

the principle pact sunt servanda and the duty or prevalent
application of the Constitution; (ii) the reservation made by
Colombia to article 27 .1 of the Vienna Convention on the Law
of Treaties of 1986, in response to an order of the Constitutional
Court, which allows to make compatible the international
principle with the constitutional review of treaties in force, as it
was decided in Decision C -400/98 and C -27/93, of this

Tribunal; (iii) and from the hermeneutic principle, consolidated
in the jurisprudence, requiring optimization or concrete
harmonization to the maximum extent possible . In other words,
from the intention of the Constituent Assembly in 1991, the
juridical tradition of Colombia of respect to international law,
and from the constitutional recognition of the two principles in
conflict – both equally protected by the rules of supremacy

enshrined in Article 4 of t he Constitution- a duty emanates to
harmonize, which is opposed to the unconditional precedence of
one or the other and requires the fulfilment of both principles to
the maximum extent possible .

9 .7 The duty of preeminent application of the constitutiona l
provisions derives directly from the content of Article 4 of the

Constitution, according to which, “The Constitution is the norm
of norms . In every case of incompatibility between the

68provision that may restrict, limit, affect or hinder in the scope of
its mandate .

9 .5 The rule defined in Decision C -400 of 1998, suggests as
alternatives to the normative conflict, either the modification of

norms that are contrary to the former, are incapable of directly
impacting the content of the international obligation or the
international nexus .

9 .6 The constitutional duty to harmonize the challenged
conventional international clauses with Article 101 of the
Constitution emerges from: (i) the constitutional status both of

9 .7 The duty of preeminent application of the constitutiona l
provisions derives directly from the content of Article 4 of the

Constitution, according to which, “The Constitution is the norm
of norms . In every case of incompatibility between theAnnex 4

mentioned were transmitted by Colombia to the Secretary
General of the United Nations, which, in turn, transmitted them
to the States and inter -State organizations signatories of said
Convention . Considering that there is no record by the
Depositary – General Secretariat of the United Nations – giving

account of the express objection by the State Parties against the
reservations and interpretative declarations made by the
Republic of Colombia, it can be affirmed that the international
society has not issued, until present date, an objection to the
restrictive or limited acceptance of Colombia with respect to the
pacta sunt servanda principle .

9 .9 . To maximize the constitutional interests in conflict, this is,
the obligation to harmonize the duty to apply the constitutional
provisions and the duty to comply in good faith with the
international commitments, requires to recognize that Article
101 triggers the imperative that the incorporation of the
decisions regarding the modification of boundaries be made by
entering into, approving and ratifying a treaty of boundaries .

9 .10 The settlement of the disputes mentioned allows, in this
opportunity, to make compatible the obligation to comply with
international obligations assumed by Colombia, as an expression
of the principles of international law recognized by Colombia,
with the mandate to respect the minimum contents of Article
101, in securing the supremacy of the Constitution . And its leads

to the harmonization of the confronted duties: (i) on one side, it
recognizes the validity of the challenged clauses of the Pact of
Bogotá approved by Law 37 of 1961 and whose effects are
unquestionable by vir tue of the pacta sunt servanda principle
during the time the Pact was in force for Colombia; (ii) it
follows that the decisions rendered by the International Court of
Justice, on the basis of the jurisdiction recognized by Colombia

through Article XXXI of the Pact, cannot be disregarded, in
conformity with what is prescribed in Article 94 of the Charter
of the United Nations, that provides that each Member of the
United Nations is committed to comply with the decision of the
International Court of Justice i n any case to which it is a party .
And, in any case, (iii) said interpretation guarantees the respect
for the constitutional rule provided for in Article 101 of the

Constitution according to which, any modification of the general
situation of territorial b oundaries in force in 1991, shall be

70mentioned were transmitted by Colombia to the Secretary
General of the United Nations, which, in turn, transmitted them
to the States and inter -State organizations signatories of said
Convention . Considering that there is no record by the
Depositary – General Secretariat of the United Nations – giving

Constitution according to which, any modification of the general
situation of territorial b oundaries in force in 1991, shall beAnnex 4

Colombian Stat e as of October 14, 1968 for the judicial
settlement of disputes on international affairs, under the
understanding that the decisions of the International Court of
Justice, adopted in relation to boundary disputes, must be
incorporated into domestic law by a duly approved and ratified

treaty, under the terms of Article 101 of the Constitution .

9 .15 . Consequently, in conformity with what is expressed,
Articles II (partial), V (partial), XXXII to XXXVII and
XXXVIII to XLIX, will be declared constitutional .

10. Response to the remaining charges: breach of Articles
59T, 2, 3, 9, 79, 329, 330 of the Constitution

10 .1 . Article XXXI of the American Treaty on Pacific
Settlement (i) does not disregard Transitory Article 59 of the
Constitution since this constitutional norm, in establishing the
prohibition of jurisdictional review of the Constitution, only
comprises the judicial examination of the legal order that has the

capacity to expel or exclude unconstitutional norms directly off
the legal order . (ii) It does not violate articles 2, 3, 79, 329 and
330 of the Constitution either, since the recognition of
jurisdiction established therein does not contravene the right of
citizens to participate in the decision that affect them nor the
right of prior consultation of the ethnic communities, matters
that in any case would arise as duties for the national authorities

and would not be internationally opposable .

10 .2 . Article XXXI of the Pact does not violate (i) the principles
of sovereignty and self -determination established in Article 9°
of the Constitution, nor (ii) Article 189 .6, considering that the
free assumption of a commitment by the State is one of the most
important manifestation of sovereignty and self-determination in

the international society, not being possible to allege its
violation when the State has autonomously and willingly the
State has decided to be obliged by the provisions of a treaty –
Article 226 of the Constitution- . (iii) Finally, neither does it
disregard the constitutional obligation to develop the
internationalization process on the basis of convenience: the
judgment of convenience must respect the margin of

appreciation the political authorities enjoy to assess the
usefulness and benefit in entering into a treaty, and the

72Colombian Stat e as of October 14, 1968 for the judicial
settlement of disputes on international affairs, under the
understanding that the decisions of the International Court of
Justice, adopted in relation to boundary disputes, must be
incorporated into domestic law by a duly approved and ratified

treaty, under the terms of Article 101 of the Constitution .

9 .15 . Consequently, in conformity with what is expressed,
Articles II (partial), V (partial), XXXII to XXXVII and
XXXVIII to XLIX, will be declared constitutional .

10. Response to the remaining charges: breach of Articles
59T, 2, 3, 9, 79, 329, 330 of the Constitution

and would not be internationally opposable .

appreciation the political authorities enjoy to assess the
usefulness and benefit in entering into a treaty, and theAnnex 4

invoked the decision of the international tribunal, the
coordinates of the maritime frontier between the States fixed in
the treaty, did not coincide with the coordinate of the maritime
frontier set forth by the International Court of Justice . None of
the States alleged noncompliance with the Judgment nor was the

action considered a violation of the latter .

10 .5 . The remaining provisions challenged presuppose the
existence of the clause on the recognition of the jurisdiction of
the International Court of Justice by the States Parties to the Pact
of Bogotá . Hence, the decision about the constitutionality of
Articles XXXII to XXXVII will be in the sens e of

constitutionality decided with respect to the previous article,
without the need of any conditioning whatsoever . The Court will
proceed in the same fashion with regard to the obligation to
make use of the procedures established in the American Treaty
on Pacific Settlement, and specially the judicial procedure
already seen- Article II of the Pact -, and with respect to the
jurisdiction of the International Court of Justice to define

whether the controversy submitted to it deals with a matter
within the domestic jurisdiction of the States – Article V of the
Pact- . In the same fashion, with respect to Articles XXXVIII to
XLIX .

11. Final consideration: constitutional affirmation of the

international principles on the prohibition of the use of force
for the settlement of disputes and on the peaceful settlement
of disputes

11 .1 . The Political Constitution establishes, faithful to the
constituent purpose, not just that the peace is one of the purpose
of the Constitution (Preamble) and one of the goals of the State
(Art . 2) but also, that it is a right and a duty of mandatory

compliance (Art . 22) .

11 .2 . The practice of the Republic of Colombia, in its condition
as subject of international law, shows throughout its existence, a
vigorous and uninterrupted defenc e and submission to that
principle . The principle of pacific settlement of international
disputes, complementary to the principle on the prohibition of

the use of force for the settlement of international disputes,
binds the country both constitutionally and internationally .

74invoked the decision of the international tribunal, the
coordinates of the maritime frontier between the States fixed in
the treaty, did not coincide with the coordinate of the maritime
frontier set forth by the International Court of Justice . None of
the States alleged noncompliance with the Judgment nor was the

action considered a violation of the latter .

whether the controversy submitted to it deals with a matter
within the domestic jurisdiction of the States – Article V of the
Pact- . In the same fashion, with respect to Articles XXXVIII to
XLIX .

11. Final consideration: constitutional affirmation of the

international principles on the prohibition of the use of force
for the settlement of disputes and on the peaceful settlement
of disputes

compliance (Art . 22) .

the use of force for the settlement of international disputes,
binds the country both constitutionally and internationally .76 Annex 5

PRESIDENTIALDECREE NO.1119OF 2014,AMENDMENT TO
THEPRESIDENTIALDECREE NO.1946OF2013,TERRITORIAL
SEA, CONTIGUOUSZONE ANDC ONTINENTALSHELF OF THE

COLOMBIAN SLANDS TERRITORIES IN TWEESTERN
CARIBBEAN,17JUNE 2014

(Available at:
http://wsp.presidencia.gov.co/Normativa/Decretos/2014/Documents/JUNIO/
17/DECRETO%201119%20DEL%2017%20DE%20JUNIO%20DE%202014
.pdf (last visited 15 Dec. 2014))

7778 Annex 5

Ministry of Foreign Affairs

Republic of Colombia

DECREE NUMBER 1119 OF
17 JUNE 2014

By which Decree Number 1946 of 9 September 2013 is
modified and amended

THE PRESIDENT OF THE REPUBLIC OF COLOMBIA,
In exercise of his legal and constitutional faculties, in special,
those provided for in Article 189 (11) of the Political
Constitution and in development of what is established in laws
10 of 1978 and 47 of 1993

CONSIDERING:

That the publication of the thematic nautical charts issued by the
General Maritime Office under Reso lution No . 613 of 9
December 2013 only proceeds after the Decree establishing the
points and base lines referred to in Article 3 of said Decree are
issued;

That the Republic of Colombia exercises all the rights over its
maritime spaces in conformity with International Law

That in the merits of what has been referred to above,

DECREES

ARTICLE ONE. To modify Article 1 (3) of Decree 1946 of 9
September 2013 which now reads as follows:

“3. The Republic of Colombia exercises full
sovereignty over its insular territories and

territorial sea; jurisdiction and sovereign
rights over the rest of the maritime spaces

79Annex 5

generated by its insular territories in the
terms prescribed by international law, the
Political Constitution, La w 10 of 1978,
Decree 1946 of 2013 and by the present
Decree, in what corresponds to each of them.

In those spaces Colombia exercises historic
rights in conformity with international law.

ARTICLE TWO. To modify Article 5 (3) and (3 .a) of Decree
1946 of 9 September 2013 which now reads as follows:

“[…]

3. In developing what has been provided for in
the previous numeral, with the purpose of
protecting the sovereignty in its territory and
territorial sea, in the integrated contiguous
zone established in this Article Colombia

exercises the faculties of enforcement and
control necessary to:

a) Prevent and control the infraction to the
laws and regulations related with the
integral security of the State, including
piracy and trafficking of drugs and

psychotropic substances, as well as conduct
contrary to the security in the sea and the
national maritime interests, the customs,
fiscal, migration and sanitary matters which
take place in its insular territories or in their
territorial sea. In the same manner,
violations against the laws and regulations

related with the preservation of the maritime
environment and the cultural heritage will be
prevented and controlled”.

ARTICLE THREE. To add the following paragraph to A rticle
5º of Decree 1946 of 9 September 2013:

80 generated by its insular territories in the
terms prescribed by international law, the
Political Constitution, La w 10 of 1978,
Decree 1946 of 2013 and by the present
Decree, in what corresponds to each of them.

In those spaces Colombia exercises historic
rights in conformity with international law.

ARTICLE TWO. To modify Article 5 (3) and (3 .a) of Decree
1946 of 9 September 2013 which now reads as follows:

“[…]

exercises the faculties of enforcement and
control necessary to:

a) Prevent and control the infraction to the
laws and regulations related with the
integral security of the State, including
piracy and trafficking of drugs and

related with the preservation of the maritime
environment and the cultural heritage will be
prevented and controlled”.

ARTICLE THREE. To add the following paragraph to A rticle
5º of Decree 1946 of 9 September 2013:Annex 5

territories of Colombia in the Caribbean Sea, are

measured.”

ARTICLE FIVE. The present Decree enters into force since its
publication and amends and modifies in the pertinent paragraphs

Decree 1946 of 9 September 2013 .

[Signed]
AURELIO IRAGORRI
Minister of Interior

MARIA ANGELA HOLGIUÍN-CUELLAR
Minister of Foreign Affairs

MAURICIO CÁRDENAS-SANTAMARÍA

Minister of Finance

JUAN CARLOS PINZÓN-BUENO
Minister of Defence

ALEJANDRO GAVIRIA-URIBE,
Minister of Health and Social Protection

LUZ HELENA SARMIENTO

Minister of Environment and Sustainable Development

82 territories of Colombia in the Caribbean Sea, are

measured.”

ARTICLE FIVE. The present Decree enters into force since its
publication and amends and modifies in the pertinent paragraphs

Decree 1946 of 9 September 2013 .

[Signed]
AURELIO IRAGORRI
Minister of Interior

MARIA ANGELA HOLGIUÍN-CUELLAR
Minister of Foreign Affairs

MAURICIO CÁRDENAS-SANTAMARÍA

Minister of Finance

JUAN CARLOS PINZÓN-BUENO
Minister of Defence

ALEJANDRO GAVIRIA-URIBE,
Minister of Health and Social Protection

LUZ HELENA SARMIENTO

Minister of Environment and Sustainable Development84 Annex 6

President Juan Manuel Santos speaks on the judgment of
the International Court of Justice

Bogotá,19 November 2012 [SIG]

"My fellow Colombians

The International Court of Justice, in a decision issued a few
hours ago, has decided on Nicaragua's claims against Colombia .

On three occasions, Nicaragua has attempted to appropriate the
Colombian archipelago for itself; in 1913, when it claimed it for
the first time in history; in 1980, when in an event without
precedent, it declared the Esguerra -Barcenas treaty null, and
void, and finally, in 2001, w hen it presented its claims against
our country before the International Court of Justice .

Today, this Court rejected Nicaragua´s claims on our
archipelago .

This is a final decision on this issue, and there is no appeal
against it

Colombia's position has been a State policy, held uninterrupted
by different governments, with independence of their political
affiliation .

Since 1969, the dispute with Nicaragua was revived, and since

that moment, eleven successive governments of Colombia have
consistently defended our position on this matter .

There have been few such occasions in which our country has
acted in such a concerted and uniform manner over so many
years, and we, since we came to office, have maintained that

same course of legal argument .

Some 1 5 sessions of the Foreign Relations Advisory
Commission have been held on this matter . The Commission
has been constantly informed and consulted .
Today, I have heard its opinions and wise counsel

It is an instance which, naturally, we shall continue to consult .

85Annex 6

Further, hundreds of meetings have been held with the active
political forces of this country and of the archipelago, and with
distinguished lawyers of great experience and world renown .

What is it that Nicaragua claimed?

Initially, Nicaragua claimed sovereignty over the archipelago of
San Andrés, Providencia and Santa Catalina, including all their
islands and cays

Today, the Court found for Colombia, and did not accede to

Nicaragua´s claims, ratifying Colombia's sovereignty over the
entire archipelago .

And more than this: the Court clarified that all the cays of
archipelago-- . I repeat, absolutely all the cays - that is,
Roncador, Serrana, Quitasueño, Serranilla, Bajo Nuevo, Este
Sureste and Albuquerque belong to Colombia .

Nicaragua also claimed that the Esguerra -Barcenas treaty of
1928 - through which that country recognized Colombia's
sovereignty over the Archipelago - should be declared invalid .

Today, the Court ratified that the treaty is valid in force .

Further, Nicaragua claimed that it should be declared that
Colombia had failed to comply with the treaty, and requested for
our country to be declared responsible for that . The Court
rejected this claim too .

Nicaragua, in 2009, alleged the existence of an extended
continental shelf .

It claimed that the Court should recognize it 350 miles of shelf,
150 miles more than that which is normally granted to States .

Further, Nicaragua asked for recognition of a maritime boundary
to the east of the islands of San Andrés , Providencia and Santa
Catalina - which would remain totally enclosed by Nicaraguan
waters-a boundary which would be only 100 miles from the

coast of Cartagena .

86Further, hundreds of meetings have been held with the active
political forces of this country and of the archipelago, and with
distinguished lawyers of great experience and world renown .

What is it that Nicaragua claimed?

Initially, Nicaragua claimed sovereignty over the archipelago of
San Andrés, Providencia and Santa Catalina, including all their
islands and cays

Today, the Court found for Colombia, and did not accede to

Nicaragua´s claims, ratifying Colombia's sovereignty over the
entire archipelago .

Nicaragua also claimed that the Esguerra -Barcenas treaty of
1928 - through which that country recognized Colombia's
sovereignty over the Archipelago - should be declared invalid .

Today, the Court ratified that the treaty is valid in force .

Nicaragua, in 2009, alleged the existence of an extended
continental shelf .

It claimed that the Court should recognize it 350 miles of shelf,
150 miles more than that which is normally granted to States .

coast of Cartagena .Annex 6

In its Judgment of today, the Court draws a line which begins
from the west of the Archipelago, between our islands and the
coast of Nicaragua . While this is positive for Colombia, the
Court, when drawing the maritime delimitation line committed

serious mistakes which I must highlight, and which have
negative effects on us .

The Court, instead of limiting itself to drawing a line in the area
regulated by the Esguerra- Barcenas treaty, mistakenly decided
to extend the line to the north and south of the Archipelago .

We disagree that the Court had gone beyond the scope of the
treaty, which the Court itself has declared to be valid and in
force .

Further, the Court extended the maritime delimitation line to the
east, as far as 200 miles from the Nicaraguan coast .

This means a reduction in Colombia's rights of jurisdiction over
maritime areas .

Further, and contrary to an historical doctrine of international
law, in establishing the boundary to the east of the Archipelago,
the Court disregarded other treaties of delimitation signed by
Colombia .

The result of this has been the creation of a series of
complexities between countries in the Caribbean, which obliges
us to work with our neighbouring States who are also affected,
in order to resolves those complexities

Further, no account was taken of circumstances to which weight

should have been given - such as considerations of security and
equitable access to natural resources .

Inexplicably-and after recognizing Colombia's sovereignty over
the entire Archipelago, and after holding that, as a unit, the
Archipelago generated rights of continental shelf and exclusive
economic zone, the Court adjusted the line of delimitation,

separating the cays of Serrana, Serranilla, Quitasueño and Bajo
Nuevo from the rest of the Archipelago .

88In its Judgment of today, the Court draws a line which begins
from the west of the Archipelago, between our islands and the
coast of Nicaragua . While this is positive for Colombia, the
Court, when drawing the maritime delimitation line committed

serious mistakes which I must highlight, and which have
negative effects on us .

The Court, instead of limiting itself to drawing a line in the area
regulated by the Esguerra- Barcenas treaty, mistakenly decided
to extend the line to the north and south of the Archipelago .

We disagree that the Court had gone beyond the scope of the
treaty, which the Court itself has declared to be valid and in
force .

Further, the Court extended the maritime delimitation line to the
east, as far as 200 miles from the Nicaraguan coast .

This means a reduction in Colombia's rights of jurisdiction over
maritime areas .

Further, no account was taken of circumstances to which weight

should have been given - such as considerations of security and
equitable access to natural resources .

separating the cays of Serrana, Serranilla, Quitasueño and Bajo
Nuevo from the rest of the Archipelago .Annex 6

It is evident that there is a contradiction between this decision
and our Constitution, and a number of international treaties in
force .

As Head of State, I shall lead the defence of the interests and

rights of Colombians, and in particular, of the inhabitants of the
Archipelago .

In order to achieve this, we need the concurrence of all public
powers as provided for in the Constitution .

I am the first to recognize the repercussions which this new

maritime delimitation has for this country and for its people, and
in particular, for the inhabitants of San Andrés and the
fishermen of the islands .

To me as a Colombian, these repercussions caused deep pain .

The inhabitants of San Andrés may be sure that we shall defend

the rights of the people of the islands and of al l our fellow -
countrymen with absolute firmness .

This we have done it not only during these 11 years of litigation,
but also over the centuries of the history of our country .

It is true that maritime rights are different from rights of

sovereignty .

We sh ould note that when drawing the boundary, the Court
advised that the new line of delimitation awarded only "specific
rights instead of sovereignty", to Nicaragua .

Since the specific rights are limited, the Court also emphasized

that this "does not affect rights of navigation" of Colombians .

For example, the inhabitants of San Andrés will have the right
of free passage to Quitasueño, Serrana, Serranilla and Bajo
Nuevo, and vice versa, and to derive their living from fishing
within the area recognized by the Court .

Today, I wish to tell the people of San Andrés that we are
committed to find mechanisms and specific strategies, and to

90It is evident that there is a contradiction between this decision
and our Constitution, and a number of international treaties in
force .