Being part of the International Court of Justice committee requires not only an extensive comprehension of the law, but also the ability to portray the facts in your favor. That is what the advocates both of Nicaragua and Colombia accomplished through their submissions.
The first submission from Colombia’s advocates regarded Nicaragua’s arrest of a crew which tress-passed illegally the border and committed poaching activities. The second point of discussion included the problem of Nicaragua’s jurisdiction in the matter. The advocates claimed that because of the fact that the crew was caught during the committing of the crimes by the military Nicaraguan vessels 20 miles inside the Economic Exclusive Zone of Nicaragua, they came under Nicaraguan jurisdiction. The article 73 from UN Charter was invoked as a legal argument for the legitimacy of the arrest and the proceedings of the investigations.
The submissions also included references to the unilateral Presidential Decree from 1946 adopted by Colombia. The applicants used the act to claim that the crew was in Colombian territory at that point. The other party responded saying that the Decree does not expand their maritime territory within the Economic Exclusive Zone, since it would mean disregarding the judgment made by the ICJ. Furthermore, this would have been in breach of the legal principle which states that the international law is above and prior to the national law, as stated in article 103 in UN Charter.
To help with the ongoing case, the President of the Court decided to summon an expert on Nicaraguan law in order to accurately establish a decision regarding the conflict of law.
“We were called upon by the President of the ICJ to stand as expert in the matter of legality under the Nicaraguan Criminal Code. Our findings established that the fishermen were apprehended under the criminal law but without obtaining the consent of a judge. We understood that Nicaragua claims an infringement of national security though they define it themselves as a matter of severe importance that affects national integrity. Also we found that Nicaragua bypassed the article 33 establishing arrest by a judicial order in less than 48 hours and went to the article 413 of the Criminal Code that allows detention for 6 months-subject to revision within the period.”
The expert advice proved to be a decisive argument in the case of military activities between Nicaragua and Colombia. The Court reached its final points of debate and a judgment is soon to be released, the Irrevocable Conclusive Judgment (I.C.J.).
Article by Amalia Alecu and Irina Tomescu