INTERNATIONAL COURT OF JUSTICE_____________________________________________ALLEGED VIOLATIONS OF SOVEREIGN RIGHTS AND MARITIME SPACES IN THE CARIBBEAN SEA (NICARAGUA v. COLOMBIA)COMMENTS OF THEREPUBLIC OF COLOMBIATO NICARAGUA’S NEW DOCUMENTS16December 2019
TABLE OF CONTENTS
A. Introduction.. 1
B. The Court lacks jurisdiction over the events referred to in
the new documents.. 3
C. Colombia did not violate Nicaragua’s sovereign rights and maritime spaces.. 4
(1) The event concerning the Honduran fishing vessel
“Observer”. 6
(a)
The “Observer” was not fishing in Nicaraguan waters.. 7
(b) Colombia did not harass the Nicaraguan vessel with
a low-flying plane or a fast boat.. 25
(c)
The Nicaraguan Naval Force tried to ram the
Colombian Vessel. 30
(d)
Nicaraguan officials deliberately manoeuvred the FNN
“Tayacán” in order to have the “Observer” and the
“Antioquia” bump into each other.. 32
(e)
Contrary to Nicaragua’s assertions, the evidence
provided by Colombia show that the damage to the
FNN “Tayacán”, was caused by the Nicaraguan
vessel deliberately ramming into the “Observer” to
stop it from fleeing.. 39
(2) The event involving the Mexican research vessel
“Jorge Carranza Fraser”. 44
D. Conclusions.. 50
List of Annexes. 57
Annexes. 59
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A.Introduction.1 Concerning thecase of theAlleged Violations of Sovereign Rights and MaritimeSpaces in the Caribbean Sea (Nicaragua v Colombia) and in particular to the note sent by the Registrar on16 October 2019, the Republic of Colombia was informed about the Court’s decision to authorize the production of new documents and materials by Nicaragua in forty-four (44) annexes as per itsrequest of 24 September 2019 12 Pursuant to said note and in accordance with Article 56, paragraph 3, of the Rules of Court, the Republic of Colombia provides its CommentsonNicaragua’s new documents and produces additional documents in support of these Comments 23 As a preliminary note, Colombia should remark that it is still unclear as to the exceptional circumstances which led to the 1Out of these 44 annexes, 33 correspond to the event of the Honduran M/V “Observer” and 10 correspond to the Mexican research vessel “Jorge Carranza Fraser”. Nicaragua Annex 19 is an interview of the Minister of Foreign Affairs of Colombia, in which, as wasnoted in Colombia’s letter to the Court on Nicaragua’s request for the production of new documents (ENLHY-88, p. 3), “[H]e refers, among other matters, to territorial –not maritime –areas. His Statements are unrelated to the two events Nicaragua attempts to document, nor, indeed, to any other ‘incidents’ alleged by Nicaragua.”Hence, this annex will not be addressed in these Comments, as it is immaterial in the context of the current proceedings. 2See Colombian Annexes1to 19attached hereto
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production of these new documents by Nicaragua. Nicaragua gave no reasons as to why those documents were necessary or why they couldnot be produced at an earlier stage. Nevertheless, Colombia recalls that it has participated in these proceedings in good faith and in compliancewith the provisions of the Court’s Statute and the Rules of Court concerning the presentation of pleadings and evidence. It is in this spirit that the Republic of Colombia providesits Commentswhichdisprove the allegations raised by Nicaragua in its letter dated 23September 2019 Due to the wholly misleading nature of the allegations made by Nicaragua based on its new documents, Colombia is constrained to answer these allegations in some detail, and to explain the manner in which Nicaragua has misrepresented the facts. 4 Colombia’s Comments will be divided into three main Parts (B,Cand D) In Part B, Colombia reiterates its conviction that the Court lacks jurisdiction over the events referredby the new documents. In Part C, Colombia will explain that it did not violate Nicaragua’s sovereign rights and maritime spaces with respect to Nicaragua’s new allegations. This Part is divided in two Sections, (1) and (2), which address the events regarding the Honduran fishing vessel “Observer” and the Mexican research vessel “Jorge Carranza Fraser”, respectively. The first Section, which refers to the M/V “Observer”, is divided in five subsections: (a)The “Observer”was not fishing in Nicaraguan waters; (b)Colombia did not harass the Nicaraguan vessel FNN “Tayacán” with a low-flying planeor a fast boat; (c)The
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Nicaraguan Naval Forcetried to ram the Colombian vessel, (d)Nicaragua deliberately manoeuvred in order to have the “Observer” and the “Antioquia” bump into each other,and (e)The damage to the “Tayacán” depicted by Nicaragua was not caused by the “Antioquia”which never bumpedinto the Nicaraguan vesseland was caused by the “Tayacán” ramming into the “Observer” to stop it from fleeing Part Dthen ends with Colombia’s conclusions regarding the assertionsadvanced by Nicaragua on the basis of its newly filed documents.B.The Court lacks jurisdiction over the events referred to in the new documents.5 The new documents by which Nicaragua seeks to supplement its case allegedly concern two events that occurred in October and December 2018, respectively. They are thus events thatwere not the subject-matter of any dispute between the Partiesat the time when Nicaragua filed its Applicationon26 November 2013 6 As explained in Colombia’s Counter-Memorial and Rejoinder, as of 27 November 2013,Colombia was no longer bound by the American Treaty on Pacific Settlement (Pact of Bogotá). Under Article XXXI of the Pact of Bogotá, Colombia did not consent to the Court’s jurisdiction to rule on any events that took place after it ceased to be bound by the Pact
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7 Therefore, even though Nicaragua’s new documents have been incorporated into the file of the present case,it does not follow from that that the Court has jurisdiction over the events referred to in these documents. Indeed, Colombia considers that the Court lacks jurisdiction over the events referred to in these new documents, which took place some fiveyears after Colombia ceased to be bound by the Pact of Bogotá 8 Nevertheless, even if the Court decides it has jurisdiction over the events referred to in Nicaragua’s new documents (quod non), they do not prove any violation by Colombia of Nicaragua’s sovereign rights and maritime spaces. Tothe contrary, as will be demonstrated, the events, particularly thoseregarding the M/V“Observer”, show an absolute lack of respect for international law and a pattern of aggressive and illegal behaviour by Nicaragua.C.Colombia did not violate Nicaragua’s sovereign rights and maritime spaces.9 Nicaragua submittedto the Court documentson two events which it claims constitute “flagrant violations of its rights as conclusively adjudicated by the Court in its 2012
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Judgment in the Territorial and Maritime Dispute (Nicaragua v Colombia), and a threat to its rightsin dispute in this case” 310 To prove that Colombia has violated its sovereign rights, Nicaragua first has to establish that it has the relevant sovereign rights under customary international law, which is the applicable law in the present case. However, nowhere in its letter dated23September 2019 did Nicaragua identify or articulate what specific sovereign rights it possesses that were purportedly violated by Colombia in these events. In fact, the two events primarily concern vessels from third States, not Nicaragua. The “Observer” is a Honduran flagged fishing vessel while the“Jorge Carranza Fraser” is a Mexican flagged research vessel.11 Apart from these legal deficiencies in Nicaragua’s claim,there are also serious factual and evidentiary problems with Nicaragua’s position. Asexplained below, the evidence simply does not support Nicaragua’s claimthat Colombia violated its sovereign rights and maritime spaces in these two events.12 Colombia will first comment on the event involving the “Observer”, before addressing the event concerning the “Jorge Carranza Fraser”.3Nicaragua Note Ref. HOL-EMB-098-2019, p. 5.
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(1)The event concerning the Honduran fishing vessel“Observer”13 According to Nicaragua, “late in the evening of 10 December 2018, the Nicaraguan navyvessel the ‘Tayacán’discovered aHonduran flagged vessel,the ‘Observer’”4allegedly “conducting illegal fishing activities in Nicaraguan waters approximately 110 nautical miles northeast of Nicaragua’s Miskito Cays (14°58’00”–81°00’00”).”5The Nicaraguan Naval Force(“FNN” for its Spanish acronym) then boarded the M/V“Observer”, which had a crew of 13 Hondurannationalsand one Colombian.14 Nicaragua then claims that early in the morning of 11 December 2018, the Colombian vessel ARC-53“Antioquia”, a low-flying plane and, after that,a fast boat –supposedly dispatched by the “Antioquia” –took hostile actions towards the Nicaraguan vessel, bumping into ittwice and bumping into the M/V “Observer” four times 6These hostile actions from the “Antioquia” allegedly “continued for some time”.715 In support of theseassertions, Nicaragua produced documents in 33 annexes. These will be addressed in the following paragraphs Nevertheless, a close look at these 4Nicaragua Note Ref. HOL-EMB-098-2019,p. 2.5Ibid 6Ibid 7Ibid
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documents,as well as thematerials submitted by Colombia in responsein order to correct the record,showsa very different picturefrom that portrayed by Nicaragua Thefacts and evidentiary material submitted by Colombia not only demonstrate that Colombia did not violate Nicaragua’s sovereign rights;rather,itwasNicaragua that engagedin a pattern of provocative actions that werein clearviolation of international law.(a)The “Observer” was not fishing in Nicaraguan waters. (i)Nicaragua’s Lack of Evidence16 The entire premise upon which Nicaragua’s caserestsfor arresting the M/V “Observer” isthe allegation that said Honduran vessel was “conducting illegal fishing activities in Nicaraguan waters” 8However, Nicaragua has not produced any direct or credible evidence that the “Observer” was, or had been,actually fishing in Nicaraguan waters.Indeed, it was not. As Colombia will presently explain, the “Observer” was simply navigating in transitfrom Colombian waters around Quitasueño en routeback to Serranilla when it was illegally stopped and detained by the Nicaraguan Naval Force 8Nicaragua Note Ref. HOL-EMB-098-2019,p. 2.
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17 Nicaragua produced a diplomatic note sent to Colombia on 22 December 2018,9two letters transmitting documents betweenNicaraguan authorities,10and a map from the Nicaraguan Institute for Fishing and Aquaculture (“INPESCA” for its Spanish acronym)claiming to show where the M/V “Observer” was fishing 11However, this does not constitute any evidence that the “Observer” was in fact fishing for lobsters in Nicaraguan waters. Rather, they are self-serving documents prepared by Nicaraguan officials for the purpose of this litigation.18 Nicaragua also producedcopies of the fishing permit granted by Colombia to the M/V “Observer” (in Spanish “Certificado Patente de Pesca”)12dated 1 November 2018and a set sail (in Spanish “zarpe”) dated 10 November 2018 13However, nowhere in these documents does it say that theM/V“Observer”wasauthorized to fish in Nicaraguan waters,let alone that it was fishing in Nicaraguan waters at the time it was arrested Onthe contrary, these documents show that the “Observer” was only authorized to fish in Colombian waters –afact that in and of itself undermines the assertion that Colombia violated Nicaragua’s sovereign rights or maritime spaces. 9Nicaragua Annex 6.(Colombia has included as Annex 17 some corrections to Nicaragua’s translation of diplomatic correspondence found in Nicaragua’s Annexes 1 to 10) 10Nicaragua Annexes 17 and 18. 11Nicaragua Annex 18(c).12Nicaragua Annex 18(f).13Nicaragua Annex 18(g).
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19 Indeed,Nicaragua’s own authority in matters of fisheries,INPESCA, confirmed that the M/V “Observer” was only authorized to fish in Colombian waters. In its Administrative Decision of First Instance of 8 February 2019in the case they started against the owner of the Honduran vessel“Observer”,the INPESCAclearly stated:“That the documentary evidence provided by [the owner of the M/V “Observer”] […] only prove that the OBSERVER vessel was authorized to conduct fishing activities in waters under the jurisdiction of the Republic of Colombia[…].”14(Emphasis added)20 Nicaragua alsosubmitteda Provisional Certificate of Registry15and a Seaworthiness Certificate16from the vessel These documents in no way prove that the M/V “Observer” was fishing in Nicaraguan waters. Nicaragua also produced a document certifying that the Captain of the Vessel, Mr Tito 14Colombia Annex 6:Nicaraguan Institute for Fishing and Aquaculture (INPESCA), Administrative Resolution No. 011-2019, Administrative Decision of First Instance regarding the M/V “Observer”, 8 Feb 2019. In the administrative decision of first instance rendered by INPESCA, the owner of the M/V “Observer” was charged a fine of US$65.325, with the confiscation of the whole product and the fishing gear onboard the vessel and with the detention of the M/V “Observer” in Nicaragua, which has remained to date. 15Nicaragua Annex 18(d).16Nicaragua Annex 18(e).
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Velásquez Cuevas, is a qualified seafarer.17Once again, thisdoes not go any way towards proving that the “Observer” was fishing in Nicaraguan waters.21 Nicaraguaprovidedtwo logbooks allegedly from the M/V “Observer”, which apparently record navigation data from the vessel from 22 November 2014 to 2April 2016,18and 23 July 2017 to 4 March 2018.19Both of these contain entries logged years prior to the alleged eventand do not prove any of Nicaragua’s claims.22 NicaraguaappendedaCertificate of Delivery issued bythe Nicaraguan Naval Force20and an Inspection Certificate by INPESCA,21both dated 15 December 2018 Thesestate thatlobster wasfound in the freezer of the Honduran vessel,22aswell as 2,000 pounds of leather bait alongside other gear proper of lobster fishing.23Images of the productsfound on board the M/V “Observer”were also produced.24While theseshow that 17Nicaragua Annex 18(h).18Nicaragua Annex 18(k).19Nicaragua Annex 18(j).20Nicaragua Annex 18(l) 21Nicaragua Annex 18(b).22Once again, it should be noted that Nicaragua is itself unclear as to the information it provides, given that in its diplomatic note on the matter it states that 3,000 pounds of lobster were found on board the M/V“Observer” (Nicaragua Annex 6), while in the Certificate of Delivery it says 5,355.65 pounds (Nicaragua Annex 18(l)), and then in the Inspection Certificate it states that the vessel was detained with 5,357.65 pounds of lobster (Nicaragua Annex18(b)) 23Nicaragua Annexes 18(b) and 18(m).24Nicaragua Annex 18(i).
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the vessel had indeed fished for lobsters, which is something nobody has ever denied, it does notshow wherethe lobsters were caught As explained above, the vessel only had permit to fish in Colombian waters and was not fishing when boarded by Nicaragua.23 Similarly, Nicaragua produced a report fromINPESCA dated March 2019 concerning the M/V “Observer”,which describes the vesseland its contents,and lists some documents 25The report was producedthree months afterthe alleged event took place and appears to have been produced solely for the purpose of this litigation. Once more, the Court should accord no or little weight to this document. Anyway, the report contains nothing that proves that the “Observer” was fishing in Nicaraguan waters. 24 Likewise, Nicaragua filedfour interviews conducted byNicaraguan military officials with members of the crew of the M/V “Observer” 26However, these interviews were conducted by interested parties on the seventh and eighthdays of the crew being imprisoned27without having been afforded consular accessor access to legal representation. This was in clear 25Nicaragua Annex 18(a).26Nicaragua Annexes 17(f), 17(g), 17(h) and 17(i).27The interviews of Messrs Tito Velasquez, Jonathan Velásquez, Nixon Centeno were taken by Nicaraguan military officials on 17 December 2018 while the interview of Mr Samuel de Jesús Hernández was taken on 18 December 2018. Nicaragua itself concedes the Honduran citizens were only granted consular access ten (10) days after their detention on 20 Dec. 2018 (see Nicaragua Annex 11, para. 6).
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violation of Article 36 of the 1963 Vienna Convention on Consular Relations,28to which Colombia and Nicaragua are parties. 25 Further, the interviews were conducted at a time in which the crew was kept in inhumane conditions. As noted by Mr Aaron Humphreys Sjogreen, the sole Colombian crewman aboard the M/V “Observer”:“[t]he treatment was not very good, I had to withstand a little bit of everything, the food was not very good because that was bread with beans every day […]I didn’t have contact with an attorney, that was many days [after, that the] Embassy of Colombia sent, I believe authorized personnel, since I was from San Andres and had my papers.They made us a paper for entering in their waters they took everyone, Hondurans also, and made [us] sign a paper there, and they came, made questions and we signed. We were captured as well as the vessel for 28Colombia sent three (3) diplomatic notes on 13, 14 and 19 December 2018 requesting consular access to any Colombian nationals on board the M/V “Observer” and denouncing that denial of consular access constitutes a violation of the Vienna Convention on Consular Relations. (See Nicaragua Annexes 3, 4 and 5.) Colombia reiterated this in its diplomatic note of 24 Sep. 2019 (see Colombia Annex 5:Note Verbale No. S-DVRE-19-042070 from the Ministry of Foreign Affairs of Colombia to the Embassy of Nicaragua in Bogotá, 24 Sep 2019)
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entering the water and like that, successively, each one signed because when you are with them, well it’sdifferent, it’s not the same, so in order not to have a misunderstanding or mistreatment we had to know how to answer, [you] have to know what to say. In Bluefields we were like, how to say, some days there,that was in an, that is like an enclosed place, just one door, darkness, no windows, everyone slept there, amongst the Hondurans, and I was there on the floor, each one in a tiny space. […]They didn’t beat us physically, but mentally yes.”2926 As noted above, Mr Aaron Humphreys Sjogreen was only granted consular access ten days after his detention.30Hewas interviewedbefore thisaccess had been granted whilst he was being kept in intimidatingly poor conditions.27 Accordingly, Colombia submits that thefour interviews conducted by Nicaraguan military officials with members of the crew of the M/V “Observer”that were taken by Nicaragua under conditions of duress should not be admitted as evidence 29Colombia Annex 10: Affidavit by Mr Aaron Humphreys Sjogreen (Crewmember of the M/V “Observer”), 12Dec 2019 30Nicaragua Annex 8, para. 2; and Nicaragua Annex 9, para. 6 In another document Nicaragua indicates that access was only granted twelve (12) days after being detained, i.e. on 22 Dec. 2018 (see Nicaragua Annex 11, para. 7).
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or should be affordedno weight by the Court given the illegal circumstances in which they were taken.3128 In any case, even in the extreme circumstances in which they were taken,none of the statements rendered by the fishermen, including its Captain,indicate that the M/V “Observer” wasactually fishing in Nicaraguan waters. In fact, three of them state that the crewmenwere sleeping, not fishing, at the time of the boarding by Nicaragua.3229 Nicaragua produced affidavits from the two officials on board the FNN “Tayacán”. Interestingly, neither of them state that the M/V “Observer” was fishing,or had fished,in Nicaraguan watersat the time of its arrest and boarding by Nicaragua,33which makes it difficult to avoid the impression that both affidavits purposely evadedthe issuealtogether 31The questions made by the Nicaraguanofficials during the interviews were also leading the witnesses into Nicaragua’s narrative of the alleged events and thus do not carry any probative value. Clearly, what has been testified here has been influenced by those taking the deposition. (See Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras), Judgment, I.C.J. Reports 2007,para. 244.)32Mr Tito Velásquez stated that at the moment of the boarding by Nicaragua “I was sleeping”(Nicaragua Annex 17(f)); Mr Nixon Centeno states that “I was sleeping and approximately at 22:30 hours the cook woke us up because a coast guard was coming on board”(Nicaragua Annex 17(h)); andfor his part, MrSamuel de Jesús Hernández asserted that “at22:30 hours I was sleeping in my cabin”(Nicaragua Annex17(i)) 33As explained below, Colombia submits that these two affidavits are materials tailored by Nicaragua for these proceedings and should not be admitted as evidence or given any weight. They were made by State officials interested in the outcome of the proceedings. Nevertheless, given that they
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30 In short, the new documents produced by Nicaragua do not prove that the M/V “Observer” was fishing in Nicaraguan waters, let alone that Nicaraguan’s sovereign rights or maritime spaces were violated by Colombia. It follows that Nicaragua had no grounds to arrest the “Observer” or to detain the vessel and its crew. (ii)Colombia’s Evidence: The M/V “Observer”was illegally arrested,and the conduct of theNicaraguan Naval Forceconstituted a violation of international law. 31 Colombia will now prove that the M/V “Observer” was not fishing and had not fished in Nicaraguan waters and wasillegally arrested by Nicaragua when it wasmerely sailingbetween the Colombian islands of Quitasueño and Serranilla contain statements against interest, the following excerpts are of relevance here. Officer Nery Medaro Monjarrez stated that: “we detected a naval target […] We asked the Puerto Cabezas Harbor Master whether there were any vessels of the Nicaraguan fishing fleet in that area and he answered that there were none. […] [We] ordered him [i.e. the captain of the M/V “Observer”] to prepare the ship for boarding. […] I was ordered to retain the ship and transfer it to port.”(Nicaragua Annex 17(a)). Similarly, Officer Bismarck Isidro Valle stated that: “we detected a naval target […] We asked the Puerto Cabezas Harbor Master whether there were any vessels of the Nicaraguan fishing fleet in the area and he answered that none were reported in that position. […] Frigate Lieutenant Nery Monjarrez Padilla, ordered me to go on board the vessel […]. The Commander of BL 405 [“Tayacan”] ordered me to control the vessel andnavigate toward the port.”(Nicaragua Annex 17(b)).
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Also, Nicaragua’s arrest of the “Observer” was an illegal interference with the vessel’s freedom of navigation. It should be noted that Colombia raised this fact and alerted Nicaragua to its wrongdoing in its diplomatic correspondence, but to no avail 34As will be seen, Nicaragua’s claim regarding the M/V “Observer” attempts to mislead the Court by misrepresenting the facts in order to try to improve its precarious position in the present case. 32 The key points of this subsection can be summarized as follows. •The evidence produced by Colombia herewith reconfirms that the M/V “Observer” was not fishing in Nicaraguan waters when it was illegally arrested and subsequently detained by Nicaragua.•On 10 December 2018, the Nicaraguan officials of the FNN “Tayacán” boardedthe Honduran vessel M/V “Observer” between 22:48 and 23:48hours,35under the cover of darkness, surreptitiously and without any regard for international procedures 34Nicaragua Annex 8 and Colombia Annex 5. 35Nicaragua itself is unclear as to the time of the alleged event. In its diplomatic note on the matter (Nicaragua Annex 6), they state that it occurred at 22:30 hours; in the affidavits at Nicaraguan Annexes 17(a) and 17(b) they seem to indicate that the boarding of the M/V “Observer” took place between 22:30hours and 23:30 hours; while in another Nicaraguan official document they seem to state that it occurred at 23:56hours (Colombia Annex 6). For its part, Colombian records show that the boarding took place at some point between 22:48,06hours and 23:55,48 hours (Colombia Annex 16: Vessel Monitoring System (VMS) Track of the “M/V Observer”, Data Sheet, 10 December 2018 (18:48:04) to 11 December 2018 (01:45:18)
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•Hours later, on 11 December 2018, still during the nightand before the break of dawn,the Colombian naval vessel ARC-53“Antioquia” arrived to the scene of the event in order to investigate a distress call which had been made by the “Observer”a few hours prior–at 23:55 hours of 10 December The Nicaraguan officers who at that point were onboard and had complete control of the “Observer”,intentionally tried to ram the Colombian vessel, without any regard for the lives of the fishermen and the crew of the ships involved •Then, during the early morning (after dawn)of 11 December, at a moment when the “Observer’s”motors had stopped functioning and while the FNN “Tayacán” was towing it, the Nicaraguan officials again engaged in extremely dangerous manoeuvres bytrying tocausethe “Observer” to bump with the “Antioquia”.•Finally,in the late morningof 11 December,when the Nicaraguan officials returned to the FNN “Tayacán”,the crewmen of the “Observer”sought this opportunity to try and restart the vessel’s engine. In order to prevent their escape, the “Tayacan”intentionally collided against it onat least four occasions This was the cause ofdamage to both vessels. (Those are the damages which Nicaragua, in a rather cynical way, isnow trying to present as if caused by the “Antioquia”.)
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33 Responsible lobster fishing, like the one authorized by Colombiafor the M/V “Observer” to carry out in Colombianwaters, is done with artisanal lobster traps (in Spanish “Nasas”) 36These traps are placed or “sowed”at depths of no more than 55 metres where lobsters are typically found–whereas, as will be explained below, the “Observer” was illegally detained in a location with depths of over 591metres As noted by the Western Central Atlantic Fishery Commission (WECAF) regarding the habitat of the Caribbean spiny lobster:“This crustacean can reach 40 cm in total length and as adult inhabits coral reefs at depths of 3-55 meters.”37This activity is performed during the day,not at night,and over intervals of several days during which the traps are deployed in one location where the fishermen leave them for a given period; then they move to another location to sow some more traps, only to return a few days later to the first location to harvest the trapped lobsters.36 This in comparison to Nicaragua’s predatory fishing methods which, as has been noted in Colombia’s Counter-Memorial, are contrary to international standards and promote the depletion of species (including lobster) and pose a threat to Caribbean ecosystems and habitats. (See CCM, Chapter 8).37Colombia Annex 11: Western Central Atlantic Fishery Commission, Ninth Session of the Scientific Advisory Group (SAG), MARPLESCA –The Regional Caribbean Spiny Lobster (Panulirus argus) fishery management plan, Document WECAF/SAG/IX/2018/6, Bridgetown(Barbados),19-20November 2018, p 8 Available at: <http://www.fao.org/fi/static-media/MeetingDocuments/WECAFC/SAG2018/6e.p…;(Last visited: 11 Dec 2019)
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34 Given how lobster fishing is carried out, and considering the evidence submitted by Colombia, it becomes clear that Nicaragua’s case is hopelessly flawed. Colombia did not violate Nicaragua’s sovereign rights; it was Nicaragua who violated the fishingvessel’sfreedom of navigation and illegally arrested and detained the crew. This is demonstrated by:•The hour at which the illegal capture took place.38•The Vessel Monitoring System (i.e. VMS tracker) of the M/V “Observer” in the hours before and after the illegal capture by Nicaragua. 39•The depth (bathymetry) map of the area where the event took place.40The above-mentioned evidence shows that:35 First, the boarding happened at night, which is not the time for lobster fishing. As explained, lobster fishing is an activity which only takes place during the day.36 Second,the analysis of the VMS tracker41of the vessel shows that the M/V“Observer” had been sailingfrom the 38Colombia Annex 16.39Colombia Annex 16 and Colombia Figure1: Vessel Monitoring System (VMS) Track of the “M/V Observer”, Course Report (Screenshot) 40Colombia Figure 3: Coordinates of the detention and boarding of the “M/V Observer” by the Nicaraguan Naval Force superimposed over a bathymetry chart
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Colombian island of Serranilla to Quitasueño, then remained interritorial waters ofQuitasueño for a few hours, presumably to lay or collect the lobstertraps there,and then sailed back to Serranilla–atwhich point it was boarded by Nicaragua.42The VMS signals are sent automatically every hour,and in this case, contrary to Nicaragua’s assertions, they show,hour by hour,that the “Observer”was sailing towards Serranilla, also Colombian waters, when it was illegally arrested by Nicaragua. 41As described by the Food and Agriculture Organization of the United Nations: “A fishing vessel monitoring system (VMS) is a programme of fisheries surveillance, in which equipment that is installed on fishing vessels provides information about the vessels’ position and activity. This is different from traditional monitoring methods, such as using surface and aerial patrols, on-board observers, logbooks or dockside interviews.”Fishing Vessel Monitoring Systems. Fishing Vessel Monitoring Systems (VMS). VMS Programme Factsheets.In:FAO Fisheries and Aquaculture Department[online]. Rome. Updated. Available at: <http://www.fao.org/fishery/vms/en> (Last visited: 11 December 2019)42Colombia Annex 16 and Colombia Figure 1
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Figure 1: Screenshot of VMS Track system showing M/V “Observer” navigating from the Colombian Island of Serranilla into territorial sea of Quitasueño and then back to Serranilla. Directional arrows show the course of the vessel. Red dots signal locations where distress (panic) calls were made. A change of course southwest bound corresponds to the direction the M/V “Observer” took after being captured by the Nicaraguan Naval Force (Quitasueño has been referenced for context.) Figure 1: Screenshot of VMS Track system showing M/V “Observer”
navigating from the Colombian Island of Serranilla into territorial sea of
Quitasueño and then back to Serranilla. Directional arrows show the course
of the vessel. Red dots signal locations where distress (panic) calls were
made. A change of course southwest bound corresponds to the direction the
M/V “Observer” took after being captured by the Nicaraguan Naval Force
(Quitasueño has been referenced for context.)
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37 Thetracker not only shows where the M/V “Observer” was sailing in the hours previous to the event, but it also showsthe exact moment atwhich the crew of the “Observer”transmitted a panic (distress) signal, sometime after it had been boarded In response, the Colombian Navy senta vessel, the “Antioquia”, to investigate Figure 2: Excerpt from data sheet corresponding to the VMS Track showing that in the hours prior to the illegal detention the M/V “Observer” had been travelling at an average speed of 6 knots. At 23:55 hours the panic button was first pressed by its crew. (Excerpt from Colombia Annex 16)
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38 Giventhe fact that the M/V “Observer” was navigating when it was arrested, it could not have been fishing for lobster. As explained before, lobster fishing requireslaying traps and picking them up after a few days, all of which are impossible to do when moving. The VMS trackerproves, beyond any doubt, that when the “Observer” was arrested–and before that –it was not fishing for lobsters, but merely navigating and exercising its freedom of navigation sailing between Quitasueño and Serranilla.Needless to say, Nicaragua did not produce any evidence of lobster traps belonging to the “Observer” placed on the seabed of its Exclusive Economic Zone 39 Third, by superimposing the coordinates where the vessel was arrested over a bathymetric chart of the area, it can be seen that the depth ofthe surrounding waters wherethe arrest took place iswell over 500 metres.4343Colombia Figure 3.
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Figure 3: Coordinates where the M/V “Observer” was illegally detained by Nicaraguan Naval Force at 14°58’00” N - 81°00’00” W (depicted in orange arrowhead with course towards Serranilla) superimposed over a bathymetry chart of the area (showing depths of over 591 metres close to the point of detention) [Source of nautical chart with bathymetry: British Admiralty, Nautical Chart 1218, New Ed. 10 Sep. 1993 (rev. 1999)]
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40 As explainedabove, these depths are greater than the depths in which lobster can becaught, a fact which demonstrates beyond any doubt that the M/V “Observer”couldnot have been fishingwhen it was detained 41 Insum, while Nicaragua asserts that the M/V “Observer” was fishing in its waters and that that fact purportedly justified its arrest, the documents itproduceddo not prove that assertion. To the contrary, the evidence produced by Colombia shows that the “Observer” had been fishingfor lobsters in areas of Quitasueño and Serranilla, as it was authorized to do, and afterdoing so,sailed towards other Colombian waters to continue its activities.It further proves that the “Observer” was boarded at night when it was navigating at a steady speed of around 6 knotsona route where the water depths are over 500 meters,bothof which would have made lobster fishing physically impossible.That being the case, there was no basis for Nicaragua to arrest the “Observer” or detain its crew.(b)Colombia did not harass the Nicaraguan vessel with a low-flying plane or a fast boat.42 Nicaragua also allegesthat Colombia sent a low-flying plane44and a fast boat to harass the Nicaraguan naval vessel 44Nicaragua Note Ref. HOL-EMB-098-2019, p. 2.
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“Tayacán”.45However, there is absolutely noevidence to support this assertion. 43 Contrary to what Nicaraguasays, there was no low-flying airplane that“harassed” the FNN “Tayacán”. As has been explained previously in Colombia’s Counter-Memorial, the order of operations issued by the Specific Command of San Andrés and Providencia states that “…[i]t is forbidden to fly above any military-type vessel at lower height of 3500 feet, taking into account thatthese acts may be considered as hostile by the respective vessel…”.46Inthis specific case, this contention is supported by the evidence produced by Colombia, in the form of a document issued by the Commander of the Air Force certifying that on 11December there were no flights in that area,47in addition to an affidavit by the Captain of the “Antioquia” stating that there had been no flights in the area 4844 Contrary to Nicaragua’s allegation, there was also nofast boatthat “harassed” the FNN “Tayacán”, nor therecould have been,for the simple reason that the “Antioquia”, which was the only Colombian vessel present in the area, wasnot45Nicaragua Note Ref. HOL-EMB-098-2019, p. 2 and Nicaragua Annex 17(c), Audio Transcript 1. 46CCM, para. 4.33 and CCM, Annex 61.47Colombia Annex 8: Colombian Air Force, Communication No. 20191600562893-MDN-COGFM-COFAC-JEMFA-COA-CEOPA-SECOC, 23 Oct 2019 48Colombia Annex 9: Affidavit by Mr José Cristóbal Méndez Hernández (Captain of the ARC-53 “Antioquia”), 4 Dec 2019
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carrying a fast boat.49But even if ithad been carrying one –which was not the case –that boatcouldnot havebeen deployed. This is shown by the Travel Report from the Colombian naval vessel which states that the davit (in Spanish “pescante”) for deployingthe patrol boatwas not workingat the time 50Both facts areconfirmed by the Captain of the Colombian vessel.51In other words, it was not possible for the Colombian vessel to deploy any boat, let alone a fast boat,towards the Nicaraguan vessel. 45 It stands to reason that if a fast boat had been deployed, the Nicaraguan vessel would have communicated something to the “Antioquia” or to the alleged patrol boat.It did not There is no evidence that the FNN “Tayacán” eversaid anything with respect to a patrol boatto the Colombian vessel 46 Moreover, Nicaragua’s own records show52that the communications by the Colombianofficialswith the Nicaraguan’s were professional at all times 53If anything, the 49Colombia Annex 9 Support boats carried by vessels such as the “Antioquia” are either Zodiac or rigid-inflatable buoyancy (RIB) boats.50Colombia Annex 19: National Navy of Colombia, Maritime Travel Report, ARC-53 “Antioquia”, Section 3 “Itinerary” and Section 5 “Novelties in Equipment and/or Machinery”, 10 Jan 2019 51Colombia Annex 9 52It should be noted that Nicaragua deliberately omitted from its transcriptions and translations into Englishat Nicaragua Annex 17(c)key passages of the conversations between Commanders. Colombia has now retrieved in Colombia Annex 18said passages from the conversation audios found in Nicaragua Annex17(j) 53For example:in Nicaragua Annex 17(c) -Audio Transcription 4, the Colombian Commander says that “I acknowledge that at dawn there was an
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Colombian naval officers invited the Nicaraguanofficersto release the Honduran vessel and recalled the agreement between the naval commanders to cooperate so as to avoid any misunderstandingsand to maintain the good relations between the Colombian and Nicaraguan naval forces 54This belies any inspection, but it was aborted.” In Nicaragua Annex 17(c) -Audio Transcription 5, the Commander of the Colombian Navy says to the Nicaraguan Commander “we are there to help Admiral Fonseca” InNicaragua Annex 17(c) -Audio Transcription 6corrected in Colombia Annex18, the Colombian Commander says “the information that I have is that the [Colombian] ship isat a distance from where it was as of the offer that was made to provide support if needed.” InNicaragua Annex 17(c) -Audio Transcription 7corrected in Colombia Annex 18, the Colombian Commander reiterates to the Nicaraguan Commander that: “No sir, Admiral Fonseca, what they are saying is not so, I have the [Colombian] vessel’s position and the vessel is far away. […] No that cannot be … fortunately we have all the records of situations […] I called you precisely so that this does not transcend to other instances, it was a very respectful request […] as I say, there are, we have evidence, there is no intention, there is no aggression, there is no instruction in this regard Mr Admiral Fonseca … you can rest assured that what I am saying is so, we are not going to place ourselves under any risk, of doing it that way, since it is not the intention at all, nor are we going to have [inaudible] specially to a fishing unit, and specially to one of your units.”. These transcripts are taken from Nicaraguan Annex17(j).54For example:in Nicaragua Annex 17(c) -Audio Transcription 2, the Commander of the Colombian Navy states “we had … been managing an agreement here between the commanders to avoid that this type of event from transcending, Admiral Fonseca [Nicaraguan Commander]” In Nicaragua Annex 17(c) -Audio Transcription 3corrected in Colombia Annex 18, the Commander of the Colombian Navy says to the Nicaraguan Commander: “right now it [the Honduran vessel] has an emergency […] the ship is adrift […] we want to offer you support and take advantage of the situation and the situation to leave things as they are according to the pact that was being sustained with you in which we respect, of course, the commitment and the role of each of the navies, you understand that these things obey to the role of the constitutional mission that you and we also have, which is a political issue and hopefully we can resolve this situation soon so as not to have this type of inconvenience and that of course end up in some way affecting the good relations we want to strengthen with you.” These transcripts are taken from Nicaraguan Annex17(j).
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contention that the Colombian vessel took hostile actions towards the Nicaraguan vessel. 47 The only “evidence”produced by Nicaragua to support its assertion that Colombia took alleged hostile actions are affidavitsfrom two crewmembers from the FNN “Tayacán”.55However, these affidavits are not supported by any corroborative evidence and their reliability is highly questionable. They areself-serving and lack credibility. Moreover, the individual who served as notary public for these affidavits is one Walner Abraham Molina who not only is a recently retired member of Nicaragua’s military,but has served as legal counsel for Nicaragua in various cases before the Court –including this one.56The Court itself has noted that caution should be observed, for example when “witness statements produced in the form of affidavits […] were made by State officials”,57even moresowhen the officials who presented the affidavits, and the official before whom they were presented are interested in the outcome of the proceedings, as occurs in the present case. 55Nicaragua Annexes 17(a) and 17(b).56Colombia Annex 12: Curriculum Vitae of Mr Walner Abraham Molina (See also: Alleged Violations of Sovereign Rights and Maritime Spaces inthe Caribbean Sea (Nicaragua v Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016,p. 8).57Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras), Judgment of 8 October 2007, para. 244.
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48 Therefore, contrary to Nicaragua’s assertion, the evidence shows that Colombia did not deploy a low-flying plane or a fast boat to harass the Nicaraguan vessel. 49 The fact of the matter is that it was the NicaraguanNaval Force, and not the Colombian Navy, which throughout the events that occurred late in the evening of10 December and the early afternoon of 11 December 2018, repeatedlyacted in violation of international law by engaging in a pattern of extreme aggressivenesswhich endangered lives and violatedbasic rules of behaviour at sea.(c)The Nicaraguan Naval Forcetried to ram the Colombian Vessel 50 At or around 05:00 hours of 11December, sometime after the Colombian navalvessel “Antioquia” arrived in response to thedistress call from the M/V “Observer” and approached the latter vessel in order to assess the situation, the officers of the Nicaraguan Naval Forceonboard and in control of the “Observer”abruptly –without any notification –changed course directly towards the “Antioquia” and attempted to ram the Colombian ship. This was an illegal, irresponsible and reckless actwhich endangered the lives of the crews of the “Observer” and the “Antioquia”. All this was captured ontwovideostaken from the Colombian vessel,which show the
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abruptness of the “Observer’s” manoeuvre and theextentto which the Colombian Navy had to act to avoidacollision.5851 Of course, Nicaragua doesnot mention this, in spiteof the factthat it was one of the most dangerous moments of the eventconcerning the M/V “Observer” The reason for this silence is that the evidence demonstrates that the “Antioquia”wasnot in any way attempting to do anything other than approaching the areato ascertain the situation of the “Observer” and to communicate with the personnel of the Nicaraguan Naval Force. However,Nicaragua’s response was nothing short of anunwarranted and undisciplinedreaction whose dangerous effects were avoided solely on account of the skill of the Colombian 58Colombia Annex 1:Video Material Event M/V “Observer”, 11Dec 2018 (before dawn), (a) First Video and (b) Second Video.
Figure 4: Screenshot taken from Colombia Annex 1(a) showing that when the
Colombian vessel arrived to the scene of the event on 11 December 2018
(before dawn), the M/V “Observer” was boarded and under control of heavily
armed officials from Nicaragua.
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Navy. This attempt by the Nicaraguan officialsto create a collision between the M/V“Observer” and the Colombian vessel constituted a violation of international regulations concerning the prevention of collision (the COLREGS)59and demonstrate a clear disregard of human lives and safety at sea.52 From that moment onward,the Nicaraguan Naval Forcecontinued to take still further aggressive actionsagainst the Colombian vessel. Colombia will explain each of those actions in the way they actually occurred (d)Nicaraguan officials deliberately manoeuvred the FNN “Tayacán” in order to have the “Observer” and the “Antioquia” bump into each other 53 At or around 6:30 hourson the morning of 11 December, for reasons which are not clear, the motors and the rudder of the M/V “Observer” stopped working and the vessel could not navigate by itself.60At around 7:00 hoursthe FNN “Tayacán” started to tow the “Observer” in order totake it to a Nicaraguan port.6154 Nicaraguaassertsthat when the FNN “Tayacán” was towing the “Observer”, the Colombian naval vessel “took active 59International Regulations for Preventing Collisions at Sea 1972 (COLREGS) 60Colombia Annex 9.61Ibid.
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hostile actions with the aim of impeding the transfer of the ‘Observer’ to port in Nicaragua[…] which culminated in the [Colombian vessel] twice bumping the ‘Tayacán’and bumping the ‘Observer’four times” 62However, as explained below, the evidence providedby Nicaraguaas well as the evidence produced by Colombia, showprecisely the contrary. It was the Nicaraguan vessel that engaged in dangerous and unprovoked actions 55 In order to prove its allegations, Nicaragua provided the Court with a video supposedlyshowing the ARC-53“Antioquia” bumping into the M/V “Observer” while being towed by the Nicaraguan vessel FNN “Tayacán”.63The video produced by Nicaragua fails to show any bumping whatsoeverbetween the Colombian and the Nicaraguan vessels.Rather, the video shows a light touch (not bumping or collision) between the “Antioquia” and the Honduran M/V “Observer” which as will be seen below, was prompted by Nicaragua’s reckless manoeuvring duringthe towing operation. Moreover,Colombia cannot fail to bring to the Court’s attention that the video produced by Nicaragua64not only doesnot show what Nicaragua alleges, but it was cropped in at least nineplaces 6562Nicaragua Note Ref. HOL-EMB-098-2019, p. 2.63Ibid., pp. 3-4 64Nicaragua Annex 17(k).65NicaraguaAnnex 17(k), see minutes: 00:13, 00:18, 00:43, 02:31; 02:42; 04:45; 08:19; 08:57; 09:18.
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This undisclosedand unexplainedediting of the video raises serious doubtsabout its veracity. 56 In order to rebut Nicaragua’s claim, Colombia is submitting a video of its ownwhich shows a totally different story. Colombia’s video was taken from the “Antioquia”, and clearly shows that when towing the Honduran vessel, the Nicaraguan vessel deliberately cut across in frontof the Colombian vessel in a sinuousfashion in order to cause bumping between the Colombian vessel and the “Observer” 66This is illustrated in the figure below. 66Colombia Annex 9 and Colombia Annex 2:Video Material Event M/V “Observer”, Colombian perspective of the Nicaraguan towing manoeuvre, 11 December 2018 (early morning after dawn), (a) First Video and (b) Second Video.
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Figure 5: Graphical depiction of Nicaraguan officials’ manoeuvres seeking to cause bumping between the ARC-53 “Antioquia” and the M/V “Observer” while being towed by the FNN “Tayacán” on 11 December 2018 (early morning after dawn) Figure 5: Graphical depiction of Nicaraguan officials’ manoeuvres seeking to cause bumping between the ARC-53 “Antioquia” and the M/V “Observer” while being towed by the FNN “Tayacán” on 11 December 2018 (early morning after dawn)
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57 Said deliberate manoeuvring by the Nicaraguan Naval Force can be seen in Nicaragua’s own video.Itis also shown in Colombia’s videos, where the dangerous manoeuvre is even more visible since it was filmed fromthe Colombian vessel 67Itshowsone of the exact momentswhenthe M/V “Observer”,while being towed by the FNN “Tayacán”,crossed the path of the “Antioquia”,demonstratingthat there was no bumping between the Colombian naval vesseland the “Observer”. The following screenshots from theColombian video show different moments of the Nicaraguan manoeuvre: 67Colombia Annex 2 (a) and (b) Figure 6(a): Dangerous manoeuvring by Nicaraguan officials while towing the M/V “Observer” from point of view of ARC-53 “Antioquia” on 11 December 2018 (early morning after dawn) (screenshot taken from Colombia Annex 2(a))
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Figure 6(b): Dangerous manoeuvring by Nicaraguan officials while towing
the M/V “Observer” from point of view of ARC-53 “Antioquia” on
11 December 2018 (early morning after dawn) (screenshot taken from
Colombia Annex 2(b))
Figure 6(c): Dangerous manoeuvring by Nicaraguan officials while towing
the M/V “Observer” from point of view of ARC-53 “Antioquia” on
11 December 2018 (early morning after dawn) (screenshot taken from
Colombia Annex 2(b))
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58 Thus, it can be seen that, contrary to Nicaragua’s assertion, the Colombian vessel was not trying to bump into the M/V “Observer”. On the contrary, the videos produced by Colombia and the screenshots shownabove provethat the Nicaraguan vessel, which was towing the “Observer”, was deliberately trying to cause bumping by towing the Honduran vessel across the path of the Colombian vessel. Fortunately, due to the manoeuvring of the Colombian vessel, an unfortunate situationwas averted. 59 The attempt by Nicaragua to create a bumping between the M/V “Observer” and the Colombian vessel constituted,yet again, a clear disregard forhuman lives and safety at sea. Nicaragua’s allegations that the “Antioquia”deliberately bumpedwith the “Observer” are false and, as explainedabove,they are nothing more than anattempt to fabricate a case against Colombia in these proceedings. 60 Having addressed Nicaragua’s assertion that the Colombian vessel bumped into the “Observer”, Colombia now turns to address Nicaragua’s assertion that the Colombian vessel also bumped into the Nicaraguan vessel“Tayacán”
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(e)Contrary to Nicaragua’s assertions, the evidence provided by Colombia show that the damage to the FNN “Tayacán”, was caused by the Nicaraguan vessel deliberately ramming into the “Observer” to stop it from fleeing. 61 It should be noted that not a single piece of evidence furnished by Nicaragua proves that the alleged damage to the FNN “Tayacán” was caused by the “Antioquia”.Not even the video submitted by Nicaragua shows “bumping” between the Colombian and the Nicaraguan vessels–as alleged by Nicaragua 62 In support of its contentionthat the Colombian vessel bumped into the FNN “Tayacán”,Nicaraguasubmittedeight photographsshowing the damage suffered by the Nicaraguan vessel 68However, as explained below, Colombia is of the view that the damage suffered by Nicaraguanvessel was caused by it ramming into the “Observer” several times while it was trying to flee from the Nicaraguan vessel. 63 In circumstances which are still not clear, after mid-morning of 11December,the Nicaraguan officials abandoned the M/V “Observer” and went back to the FNN “Tayacán”.69Shortly therafter,thecrew of the“Observer” asked for the assistance of the “Antioquia”informing that the Nicaraguan officials from the FNN “Tayacán” were trying to 68Nicaragua Annex 17(d).69Colombia Annex 9.
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kidnap them,70then sought to reignitethe engine of its vessel and tried to flee from its Nicaraguan captors.7164 However, as can be seen in the two videossubmitted by Colombia,which were taken from a fishing vessel in thevicinity of the events,the Nicaraguan naval vesselpursued the M/V“Observer”and tried to stop it from fleeing bycolliding into itonat least four occasions(see screenshots below as well as in the corresponding videos) 72Such actions, which clearly violate international law, endangered the lives of the fishermen aboard the “Observer” anddamaged both vessels.These collisions would explainthe damage on the Nicaraguan vesselfor which Nicaragua tries to blame Colombia,and demonstrate that any damage was self-inflicted by Nicaragua and not caused by Colombia.7370The Captain of the M/V “Observer” says:“[…] we are just waiting for you [A.R.C. “Antioquia”] to take us out of here! They [the FNN “Tayacán”] want to take it, they want to take it, it’s practically kidnapping!Over.”ColombiaAnnex4(a): CommunicationNo. 1between the M/V “Observer” and the ARC-53 “Antioquia”, 11 Dec 2018 (late morning),(i) transcript and (ii) audio 71ColombiaAnnex4(b): CommunicationNo. 2between the M/V “Observer” and the ARC-53 “Antioquia”, 11 Dec 2018 (late morning),(i)transcript and (ii) audio See also Colombia Annex 3(b); and Colombia Annex 9.72Colombia Annex 3: Video Material Event M/V “Observer”, recapture of the M/V “Observer” by the Nicaraguan Naval Force, 11 Dec 2018 (late morning), (a) full identification of the Nicaraguan FNN “Tayacán”and (b)collisions from the Nicaraguan FNN “Tayacán” to the M/V “Observer” during recapture. 73Nicaragua submitted three photographs allegedly showing damage suffered by the Honduran vessel on its starboard side (Nicaragua Annex 17(e)) yetit did not provide any pictures of the Honduran vessel on its port sidewhere the collisions between the FNN “Tayacán” and the M/V “Observer” occurred as shown in Colombia Annex 3(b)
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Figure 7: Images show the Nicaraguan FNN 405 “Tayacán” fully identified
and undamaged on 11 December 2018 (late morning) after the alleged
bumping with the Colombian vessel (screenshot taken from Colombia
Annex 3(a))
Figure 8(a): FNN “Tayacán” pursuing the M/V “Observer” on 11 December
2018 (late morning) in order to recapture it, colliding with it multiple times
(screenshot from Colombia Annex 3(b))
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Figure 8(b): FNN “Tayacán” on 11 December 2018 (late morning) colliding against the M/V “Observer” on four different occasions while trying to recapture it (screenshots taken from Colombia Annex 3(b))
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65 In sum, Nicaragua has grossly misrepresented the facts. Contrary to Nicaragua’s assertion, the evidence does not show that the Colombian vessel took any hostile actions towards the Nicaraguan vessel or the M/V “Observer” at any point in time To the contrary, it shows that it was Nicaragua who engagedin illegal actions and damagedboth the FNN “Tayacán” and the “Observer” Nicaragua’s version of this event is simply not true, and constitutes a poorly disguised attempt to mislead the Court into believing that the damage suffered by the “Observer” and the Nicaraguan vessel were caused by Colombia, when in reality, any damage to the Nicaraguan vessel was caused by repeatedly ramming into the “Observer”. 66 In the light of the above, the event concerning the M/V“Observer” does not even remotely constitute a violation by Colombia of Nicaragua’s sovereign rights and maritime spaces. Rather, this event demonstrates Nicaragua’s wrongful actions against a third State by illegally interfering with the “Observer’s” right to freedom of navigation, as well as against Colombia by interfering with the exercise of fishing rights in Colombia’s waters and its rights under the Vienna Convention on Consular Relations. It also lays bare Nicaragua’s illegal behaviour when trying to bump the Colombian and the Honduran vessels, and its willingness to manufacture an “incident” involving Colombia, and to misrepresent the facts in an attempt to improve its case against Colombia.
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(2)The event involving the Mexicanresearch vessel “Jorge Carranza Fraser”67 With respect to the second “new incident” referred to by Nicaragua in its documents, Nicaragua allegesthat Colombia twice intercepted the Mexican research vessel, “Jorge Carranza Fraser” in Nicaraguan waters, close to Colombian waters, and ordered it to leave the area, once on 6 October 2018 and again on 8 October2018 7468 In support of its contentions, Nicaragua produced10annexes which it claims demonstrate a violation of its sovereign rights and maritime spacesby Colombia However, a close look at the new documents producedby Nicaragua,as well as the additional materials submitted by Colombia to the Courtherewith,showsthat no such violation tookplace. 69 As a preliminary comment, it must be notedthat the “Jorge Carranza Fraser” is a Mexican flagged vessel, affiliated with the Mexican National Institute of Fisheries (“INAPESCA”for its acronym in Spanish) Therefore, even if it was true (quod non) that Colombia interfered with the navigation or activities of the vessel, Nicaragua is not the flag State andColombia has never receiveda letter from either Mexico or INAPESCA protesting Colombia’s alleged interference with the vessel Evidently, neither Mexico nor its institution INAPESCA 74Nicaragua Note Ref. HOL-EMB-098-2019, p. 1.
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considered any violation to have occurred. How Nicaragua’s sovereign rights were violated in such circumstances is thus left unexplained.70 Nicaragua produced as evidence of its claims a scientific fishing permit by which it authorized the “Jorge Carranza Fraser”to undertake aresearch project in “The Caribbean and the Pacific of Nicaragua” 75This document is nothing more than an authorization to undertake certain activities given by Nicaragua to a vessel of a third country. In noway does it demonstrate that Colombia interfered with the navigation or activities of the research vessel.71 As part of its evidence, Nicaragua also produced two diplomatic notes sent to Colombia. The first, dated 15 November2018,merely asserts–more than a month later –thatan event had happened on 6 October 2018. The second, sent on 18 December 2018, refers to apparently another event that supposedly took place on 8 October 2018.76In this last note Nicaragua was not clear as to the date of this apparently newevent becauseit stated: “[…] on Saturday, 8 October, of the current year, between 03:00 and 12:00 hours[…]” 77Noticeably, the eighth day of the month of October 2018 was a Monday,not a Saturday Nevertheless, it is clear that these diplomatic notes do not constitute any direct evidence of a violation of Nicaragua’s sovereign rights by Colombia. 75Nicaragua Annex 16. 76Nicaragua Annex 2. 77Nicaragua Annex 1, para. 2.
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72 Nicaraguaalso produced a copy of a letter from INAPESCA(Mexico),78dated 16 April 2019,which explains the mission of the “Jorge Carranza Fraser” and the results of its investigations in the Southwestern CaribbeanSea, the veracity of which Colombia cannot confirm. As mentioned above, neither INAPESCA nor Mexico ever raised anyissue with Colombiaconcerning the “Jorge Carranza Fraser” 79On the contrary, while the author of the letter stated that the “Jorge Carranza Fraser” did encounter a marine patrol vessel from a third State,it did not mention Colombia,and actually highlights the “timely development of these joint [research] activities” 80The letter therefore does not prove that Colombia interfered with the navigation or activities of the vessel. 73 Colombia notes that the contents of the letter show several inconsistencies when compared with the official reports published by INAPESCA(Mexico)when the “Jorge Carranza Fraser” was conducting its activities. In a communiqué dated 8October 2018,INAPESCA stated that on 5 October2018, which is just oneday before the firstalleged event,the vessel had already transited through the sector of Quitasueño and was located between Corn Islands (Nicaragua) and Albuquerque 78Nicaragua Annex 12. 79Nicaragua Annex 12, para. 4. It is also striking that Nicaragua took almost seven months to respond to Colombia’s diplomatic note on the matter (See Nicaragua Annex 7 (9 January 2019) and Nicaragua Annex 10 (2August 2019)).80Nicaragua Annex 12, para. 2
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island(Colombia). It follows that the vessel could not have been where Nicaragua claims it was on 6 October 2018.8181Colombia Annex 13: National Institute of Fisheries and Aquaculture (INAPESCA), Communiqué regarding the Central America Campaign 2018 of the research vessel “Jorge Carranza Fraser”, 8 Oct 2018 (See also:Nicaragua Annex 7). Figure 9: Excerpt from communiqué from INAPESCA published on
8 October 2018 (Excerpt from Colombia Annex 13)
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74 Noticeably, insaidcommuniqué INAPESCA (Mexico) never mentioned that the vessel’s research activities were interrupted by the Colombian Navy, as Nicaragua now claims. Rather, the communiqué reports that the only difficulties reported by the Mexican vessel relating to its voyage were said to involve “adverse climatologic conditions”82and complications due to the “configuration of the seafloor” 83There was no mention of any violation of rights.75 Moreover, in a second communiqué dated 12 October 2018, which was issued just a few days after the alleged events, again, INAPESCA (Mexico) did not mention that it had experienced any encounters with the Colombian Navy, let alone disruptiveones.84In other words, the contemporaneous documents published by INAPESCA(Mexico)say nothing about an alleged interference by Colombia of the vessel’s activities or route. 76 Nicaragua submitted two documents which allegedly show the original85and modified86navigation course and sampling stations of the “Jorge Carranza Fraser”. These two documents have unknown origins and their reliability is 82Colombia Annex 13, para. 2.83Ibid.84Colombia Annex 14: National Institute of Fisheries and Aquaculture (INAPESCA), Communiqué regarding the Central America Campaign 2018 of the research vessel “Jorge Carranza Fraser”, 12 Oct 2018 85Nicaragua Annex 15(a).86Nicaragua Annex 15(b).
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therefore open to question. They seem to be partial translations from Spanish, but no original annex was submitted byNicaragua. In this regard, Article 50 of the Rules of Court states that: “[…] A copy of the whole document shall be deposited in the Registry, unless it has been published and is readily available.”Since no such copy was filed by Nicaraguanoris it known that these documents have been published and are readily available, theyshould either be deemed to be inadmissible or of no probative value.77 Finally, Nicaragua submitted as evidence of the alleged violation of its rights two affidavits by Nicaraguanrepresentativesallegedly onboard the Mexican vessel “Jorge Carranza Fraser”when the alleged incidents took place.87However, as with the other affidavits from two crewmembers from the Nicaraguan vessel “Tayacán”88described earlier,the veracity of these two affidavits is highly questionable. The individual who served as the notary publicin both of themis again Walner Abraham Molina, who is a recently retired member of Nicaragua’s military as well as legal counsel in the current proceedings, and henceforthis clearly interested in the results of this case 8987Nicaragua Annexes 13 and 14. 88Nicaragua Annexes 17(a) and 17(b).89Colombia Annex 12 (See also: Alleged Violations of Sovereign Rights and Maritime Spacesin the Caribbean Sea (Nicaragua v Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016,p. 8.)
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78 In sum,contrary to Nicaragua’s assertions,most of the documents produced by Nicaragua show that the Mexican research vessel “Jorge Carranza Fraser”carried out its work and navigated through the Southwestern Caribbean Sea without interference. The documents of Mexican origin never mention any interference by the Colombian Navy. And even if it had any interaction with Colombian naval assets, it was clearly not serious enough to warrant a response from Mexico or INAPESCA, let alone amount to a violation of Nicaragua’s sovereign rights, particularly given that Nicaragua was not even the flag State of the vessel. D.Conclusions.79 In conclusion, since the new documents produced by Nicaragua pertain to events that occurred after Colombia was no longer bound by the Pact of Bogotá, the Court lacks jurisdiction to rule on Nicaragua’s claim that these events amount to a violation of its sovereign rights and maritime spaces. In any case, as demonstrated, the new documents do not prove any such violationby Colombia. On the contrary, the additional documents and video submitted by Colombia herewith confirm that Colombia committed no such violation and that, particularly with respect to the M/V “Observer” incident, Nicaragua has completely misrepresented the facts.
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80 The evidence produced by Nicaragua and Colombia demonstrates:(i)that Nicaragua violated international law when its vessel FNN “Tayacán” detained and boarded aHonduran vessel, the M/V “Observer”, which was in transit from Quitasueño to Serranilla, under the falsepretextthat it was fishing in Nicaraguan waters; (ii)that the Honduran vessel “Observer” was neither fishing nor had been fishing in Nicaraguan waters when it was illegally boarded by Nicaragua; (iii)that personnel of the Nicaraguan Naval Force,whilein command of the M/V “Observer”, through areckless, irresponsible and illegal manoeuvre,which endangered the lives of the crews’aboard both ships, tried to collide with the Colombian navalvessel ARC-53 “Antioquia”;(iv)that personnel of the Nicaraguan Naval Force during the towing manoeuvre of the M/V“Observer”,through a series of reckless, irresponsible and illegal manoeuvres which endangered the lives of the crews, deliberately
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sought to cause bumping betweenthe ARC-53“Antioquia”and the “Observer”;(v)that the Colombian navalvessel ARC-53“Antioquia” acted according to international law and did not bump or collide with the FNN “Tayacán”;(vi)that the Nicaraguan officials of the FNN “Tayacán” in a reckless, irresponsible and illegal manoeuvre which endangered the lives of the crews’aboard both ships, intentionally collided at least four times with the M/V “Observer” in order to stop it from fleeing the area, causing damage to bothvessels;(vii)that the “Jorge Carranza Fraser” is a Mexican research vessel which was carrying research activities in the Southwestern Caribbean during the first days of October 2018;(viii)that, according to public information published by the INAPESCA(Mexico), the Mexicanresearch ship “Jorge Carranza Fraser” successfully carried out its work in the Southwestern Caribbean on 6 and 8 October 2018;
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(ix)that Mexico did not present any complaint to Colombia with respect to any alleged interference ofits activities.81 These factors all lead to the general conclusion that Colombia did not violate Nicaragua’s sovereign rightsor maritime spaces, and that Nicaragua’s claims are based on allegations that are unsupported and plainly not true. In contrast, the evidence provided not simply by Colombia, butbyNicaragua as well,demonstrates that it was Nicaragua and not Colombia, which acted in a manner incompatibleto international law.82 Moreover, as has been emphasized by Colombia in its written pleadings, what is worrisome is Nicaragua’s ongoing misconception of the freedoms of navigation and overflight as it assumes that it has full and unfettered sovereignty over the EEZ 90In its Administrative Decision of First Instance regarding the M/V “Observer” of 8 February 2019, the INPESCA stated: “This Authority highlights that in accordance with international norms and the domestic laws of our State, the Nicaraguan Naval Force has the right to visit and/or 90This has already been noted by Colombia in its written pleadings. (See CCM, Chapter 3 and CR, Chapter 1)
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board any vessel in all the maritime spaces of Nicaragua[…]”.91(Emphasis added)83 It should be stressed, however, that contrary to what Nicaragua allegesand its reiterated attempts to fabricate“incidents” in the context of the present proceedings, the relations between the Nicaraguan Naval Forceand the ColombianNavy remain cordialto this day There is frequent contact and a good working relationship between them. Moreover, Colombia invited Nicaragua to participate in the “Orion” naval multilateral campaigns against drug trafficking. Nicaragua accepted and indeed participated. Asnoted on 13 August 2019 by Rear-Admiral Ángel Eugenio Fonseca Donaire, Chief of the Nicaraguan Naval Force:“We have been participating in the ‘Orión’Naval Campaigns against Drug Trafficking, organized by Colombia and where several countries participate, respecting each other’s maritime spaces”.92(Emphasis added)84 Even as recently as 10October 2019,after Nicaragua’s request for the production of new documents,the successful completion of the “Orión IV” multilateral campaign in the 91Colombia Annex 6 92Colombia Annex 7: Speeches at the 39thAnniversary of the Nicaraguan Naval Force, 13 Aug 2019
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Caribbean Sea and the Pacific Ocean was reported, wherein the Colombian Navy and the Nicaraguan Naval Forcejointly, cooperatively and successfully participatedalongside 20 other States 9385 In this light, the Republic of Colombia reiterates its concern for the attempts by Nicaragua to fabricate so-called “incidents” with the purpose of artificially improving its case against Colombia. This is a concern which Colombia has raised on several occasions to Nicaragua by diplomatic means.94CARLOS GUSTAVO ARRIETA PADILLA Agent of the Republic of ColombiaThe Hague, 16 December 201993Colombia Annex 15: Colombian Navy, Communiqué regarding the successful completion of new multinational operation against drug trafficking, 10 Oct 201994In this regard see: Nicaragua Annex 7, para. 9; Nicaragua Annex 8, para. 10; Colombia Annex 5, para. 7
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New documents submitted by Colombia after the Closure of the Written Proceedings