A Critical Assessment of Colombia’s Advisory Request before the IACtHR – and Why It Should Be Rejected

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On 14 March 2016 Colombia filed an Advisory Opinion request before the Inter-American Court of Human Rights (IACtHR). The request poses three questions, which can be summarised as follows: The first question asks whether the American Convention on Human Rights (ACHR) entails extra-territorial obligations for a State when interpreted in light of a “treaty-based environmental protection system to which that State is a party [also],” and if it does, what are its incidences vis-à-vis the elements of state responsibility (attribution and breach).

The second question is a restatement of the first one, but zeroes in on conduct of states that might do “serious damage to the marine environment” and the implications thereof for inhabitants of “the coast and/or islands of another State party” under articles 4(1) (right to life) and 5(1) (personal integrity) ACHR; in other words, the question enquires whether, and if so how, IHRL might serve as vehicle for the extra-territorial application of IEL.

Building upon the ICJ’s environmental law developments in Pulp Mills, a final question enquires whether environmental obligations under articles 4(1) and 5(1) ACHR entail the duty to conduct environmental impact assessments (EIA). In Pulps the concretisation of such duty took place in a legal setting where both parties had already assumed a series of detailed procedural duties under the Uruguay River treaty. The issue presents itself differently in the human rights context. This is because the obligation to not injure another state’s population extra-territorially is construed from the broadly texted article 1(1) ACHR (obligations to ‘respect’ and ‘ensure’). The request circumscribes the question to “[p]otential negative impacts [to] the Wider Caribbean region as a result of the construction and operation of major new permanent infrastructure projects”.

In principle, the request presents itself as an interesting possibility for the development of concrete obligations from an international environmental perspective. The current state of affairs regarding the scientific basis of environmentally damaging state activity, including climate change-related activity, provides for an opportunity to define the scope of obligations of the preventive type through, for instance, developing a sound doctrine on the precautionary principle and its not-yet clear customary international law status. The case would allow the IACtHR to potentially explore the interaction of the proposed obligation to conduct EIAs with well-established obligations in the tribunal’s case-law. Of particular relevance to the instant request are the rights to prior consultation and juridical personality of tribal and indigenous communities, which make up a sizable part of the population of the Wider Caribbean region.

As Sands notes in the related climate change litigation context, the time may be ripe for definite contribution by international courts and tribunals on such issues, particularly through advisory opinions. Matters like the interaction of human rights treaties and IEL obligations, be them treaty or custom-based, could be clarified. However, such an opportunity should not minimise the monumental challenges inherent to the endeavour. Amongst many issues, the IACtHR might find it difficult to lay down concrete state obligations where injury results from conduct contributed to by states with dissimilar obligations as a matter of IEL.

Also, given that the IACtHR would primarily be dealing with the ACHR’s content, matters central to its effectiveness such as exhaustion of domestic remedies should be addressed as well. Moreover, the extra-territorial application of the ACHR – central in Colombia’s request – is a non-explored issue by the IACtHR (although in 1999 the Inter-American Commission on Human Rights issued a merits report asserting the extra-territorial application of the ACHR in the context of the United States invasion of Grenada in 1983).

These are not unsurmountable legal challenges. However, it should be noted that the request is connected to existing litigation of Colombia and Nicaragua at the International Court of Justice (ICJ). Thus, intervention by the IACtHR should be waged also against broader policy considerations such as the need to preserve the dispute-settlement authority of the ICJ which as it is currently adjudicating on a set of cases between Colombia – the requesting state before the IACtHR – and Nicaragua – the applicant state in three cases against the former at the World Court.

Litigation over rights at the Caribbean Sea at the ICJ

In 2012 the ICJ delivered its Territorial & Maritime Dispute (Nicaragua v. Colombia) setting maritime limits in the Caribbean Sea. Markedly, the decision declared waters, estimated to be around 75,000 Km2 in extension, to be Nicaraguan, but did not pronounce on the merits of the applicant’s request for delimitation beyond 200 nautical miles. The islands of San Andres, Providencia and Santa Catalina, as well as other features in the area remain Colombian. On 27 November 2012 Colombia gave formal notice of denunciation of the Pact of Bogotá – the jurisdictional basis of the ICJ disputes with Nicaragua. This prompted Nicaragua to file two applications related to the 2012 judgment before the one-year term before effective denunciation expired: The Alleged Violations case, regarding non-implementation of the 2012 decision, and the Question of the Delimitation of the Continental Shelf Between Nicaragua and Colombia Beyond 200 Nautical Miles from the Nicaraguan Coast. Earlier this year the ICJ issued preliminary objections judgments in both cases largely rejecting Colombia’s objections (Giovanny Vega Barbosa and Diane Desierto’s Ejil:Talk!’s posts provide detailed description – and thorough analysis – of the ICJ’s preliminary objections decisions in both cases).

Following the Court’s decision in Territorial & Maritime Dispute in 2012, Colombia’s President announced the country’s ‘indignation’ at the judgment as well as the implementation of what he called an ‘integral strategy’ to deal with a perceived Nicaraguan expansionist attitude. The strategy revolved around non-implementation of the ICJ’s decision and, given Nicaragua’s announced interest in obtaining a pronouncement on maritime limits beyond 200 nautical miles, prevention of future international litigation in this regard. On the non-implementation front, the strategy centred on domestic law considerations, particularly that following article 101 of Colombia’s Constitution, boundaries can only be set by treaty. A range of measures connected to this effort constitute the bulk of Nicaragua’s arguments in Alleged Violations (See particularly (Application, Annex 9, Annex 10). On the prevention front, Colombia swiftly moved to denounce the Pact of Bogota, one of the pillars of the Inter-American system and the jurisdictional basis for the Nicaraguan cases against Colombia at the ICJ. The prevention front failed as Nicaragua filed applications on both new cases one day before the denunciation became effective.

The advisory request should be analysed as connected to that ‘integral strategy’. This is because it squares with Colombia’s position that, as a matter of domestic constitutional law, the ICJ’s 2012 decision – and by implication an eventual delimitation beyond 200 nautical miles – is inapplicable. To the extent this position seeks to evade the application of ICJ judgments by reason of domestic law considerations, concerns should be raised as regards its undermining effect vis-à-vis the authority of the World Court to effectively settle disputes in furtherance of its contentious jurisdiction. This point is confirmed in that Colombia underlined the need for the IACtHR to define the duty to perform EIAs from an extra-territorial perspective. This position allows Colombia to avoid issuing statements before the IACtHR which might be read otherwise as implied recognition of Nicaraguan rights in disputes before the ICJ.

As applied to the two states under analysis, the question the IACtHR would be solving would be under which conditions does Nicaragua have extra-territorial human rights duties with an environmental content vis-à-vis individuals in Colombian territory. Indeed, Colombia made it clear that it has an interest in the matter “insofar as part of its population inhabits the islands that form part of the Archipelago of San Andres, Providencia and Santa Catalina”, which remain Colombian features regardless of what ultimately happens with pending Nicaraguan claims, as the ICJ already decided them not to fall within its jurisdiction in its 2007 preliminary objections decision in Territorial & Maritime Dispute.

Asking the IACtHR to define the conditions under which Nicaragua could exercise its rights allows Colombia to portray Nicaragua’s 2012 win, as well as eventual favourable results in pending cases, as merely nominal. This is because, should Nicaragua decide to exercise the rights recognised to it by the ICJ by going ahead with building the infrastructure for natural resource exploitation projects in the Caribbean, it should have to carry out Environmental Impact Assessments (EIAs). Given the extra-territorial implications Colombia seeks to establish before the IACtHR, any such EIAs would have to involve Colombian cooperation and participation. It is clear that this is an important consideration for Colombia, as reflected in the wording of question three. That question speaks of EIAs as a way of complying with “[the] obligation to prevent environmental damage which could restrict or preclude the effective enjoyment of the rights to life and personal integrity [under the ACHR]” and specifically enquires about that obligation’s implications vis-à-vis “cooperation with the States that could be affected”.

Why the IACtHR should reject Colombia’s advisory request

The IACtHR should reject Colombia’s advisory request. This is because, as previously argued, the questions are an attempt to prevent the effectiveness of decisions at the ICJ, even if the issues put forward are inherently important from both a human rights and environmental law perspective. The main reason for this is that the issuance of an advisory opinion on the terms advanced by Colombia encroaches upon the dispute-settlement mandate of the ICJ which grounds its jurisdiction in a fundamental treaty of the inter-American system, the Pact of Bogota.

There is precedent for such an approach by the IACtHR. Of particular importance is the recently rejected application for an advisory opinion by the Secretaty General o fthe Organization of American States, Luis Almagro. The Secretary General asked the IACtHR to pronounce itself on the content of due process rights, as protected by the ACHR, in the context of the impeachment process which had provisionally ousted Brazilian President Rousseff. The IACtHR rightly exercised its discretion to reject the request taking into account that, due to the facts of the case, such an advisory opinion would be used to surreptitiously litigate what is otherwise a contentious case before Brazilian courts which, in due course, might reach the IACtHR as a contentious case (paras 6-7.) That in this case the contentious jurisdiction which would be encroached upon is that of another international tribunal should not render the underlying principle at play inapplicable.

Moreover, in framing the appropriate role and function of its advisory jurisdiction, the IACtHR has stated that it should “contribute to Member States and OAS organs’ effective compliance with their international obligations” (para 6, citing OC-16/99 and OC-18). These obligations are not only those enshrined in the ACHR, but more broadly international obligations in the context of the OAS. All of the above taken into account, the IACtHR should be aware that it is not the only tribunal with dispute settlement competence in the inter-American system. Quite the contrary, the Pact of Bogota, the treaty which forms the basis of the ICJ’s jurisdiction to settle disputes between Nicaragua and Colombia, is a multilateral treaty the object and purpose of which is interstate pacific settlement of disputes within the OAS framework. In this case, an intervention by the IACtHR would defeat the aims of the Pact of Bogota as it would allow Colombia to continue challenging the binding authority of the ICJ in a matter which clearly falls under its jurisdiction.

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