1. Introduction
This article analyses the relationship between the International Court of Justice (ICJ) and national legal orders in Latin America by studying the use by several Latin American states of ‘territory clauses’ in their constitutions to oppose ICJ proceedings, both prior to and following the issuance of a judgment.Footnote 1
Several of these ICJ judgments regarding territorial disputes in Latin AmericaFootnote 2 have clashed with constitutional ‘territory clauses’. In other cases, states have selectively constitutionalized ICJ judgments in territory clauses, while ignoring judgments in cases in which they were unsuccessful.
First, this article will explain the nature of the territory clauses present in the majority of Latin American constitutions. These usually appear as an article in the constitutions that describe the territory, boundaries, and involve express mention of international law (described in Section 2). The article will study conflicts between these clauses and ICJ judgments involving Latin American states, examining the way that these states have interpreted the content of the clause and used the constitutional authority and the constitutional courts to resist the implementation of judgments perceived as unfavourable to them.
The article analyses the clashes of Latin American territory clauses with judgments of the ICJ, and of state threats of non-appearance or non-compliance presented via domestic and constitutional law in Latin America. By theorizing the behaviours of resistance that can be learned from the recent reaction of Latin American states to ICJ judgments, the article will propose the category of ‘constitutionalized forms of resistance to international judgments in matters of territory’. It will seek to map this phenomenon and create additional analytical categories to the literature on resistance that can be generalized to other regions or applied to cases currently on the docket (i.e., Guyana v. Venezuela), thus contributing to the studies on the relationship between international law and domestic law within the setting of the authority of international courts and their post-judicial effectiveness.
The types of constitutional resistance that arise from the analysed cases (set out in Section 3) include (i) the reinterpretation of constitutional territory clauses to avoid compliance with judgments of international courts, (ii) the rejection of the international judgment by invoking the territory clause in a constitutional review process against it before national courts (judicial review), (iii) the selective constitutionalization of international judgments in the territory clause, and (iv) the production of reactive legislation against the international judgment invoking the territory clauses. The article then examines these categories in more depth through an analysis of specific conflicts between ICJ delimitation judgments in Latin America and the national constitutions in the region (Section 4) by describing the experience of four states (Nicaragua, Honduras, El Salvador, and Colombia) in which national constitutions have clashed with the decisions of the Court and the clause has been instrumentalized by the states to challenge the effectiveness of the ICJ decisions. Other cases with different levels of compliance, such as Peru and Chile and the recent non-appearance of Venezuela in the 2020 ICJ proceedings with Guyana, regretted by the Court in its 18 December 2020 judgment on jurisdiction, will also be commented upon from the point of view of the effect of their corresponding constitutional territory clauses.
As suggested by Morgan-Foster, Pinzauti and Webb in the 2017 Volume of the Leiden Journal, which celebrated both the thirtieth anniversary of the Journal and the seventieth anniversary of the Court,Footnote 3 attention to the ICJ caseload and its developments has always been a signature of international law scholarship but in recent years the attention from contributing authors has shifted away from the cases related to territorial delimitation to more procedural issues. Even if recent international law literature on territorial delimitation remains robust in other sources beyond LJIL, it is usually dedicated to issues not directly related to resistance and authority. This is the case, for example, with the works of Lando, about the challenges that hard cases pose to particular delimitation methodologies and how they develop the interpretation of the United Nations Convention on the Law of the Sea (UNCLOS),Footnote 4 and the research of De BrabandereFootnote 5 comparing the case law and decisions of international courts and bodies involved in delimitation, such as the ICJ, International Tribunal for the Law of the Sea (ITLOS) and the Commission on the Limits of the Continental Shelf (CLCS). In addition, authors such as Tanaka reflect on the continuity of some disputes even after the delimitation judgment.Footnote 6 Among these approaches, the literature rarely reflects on resistance arising from domestic law against delimitation judgments. This article aims to relocate the discussion, pointing to territorial and delimitation matters, considering their sensitivity in terms of the sovereignty of the states involved, the impact these cases have in local communities and the effects on the authority of international tribunals – such as the ICJ, ITLOS and arbitral tribunals – that strong acts of resistance in these cases can produce. This is especially so in Latin America, a region with a long contribution to the recent docket of the Court in territorial matters but also with many examples of resistance and troubled implementation of ICJ judgments.
2. The constitutional ‘territory clauses’ in Latin America: Their content and their relationship with international law
The relationship between national legal orders in Latin America and their implementation of ICJ judgments regarding territorial and delimitation disputesFootnote 7 is based on a fundamental premise: The existence of territory clauses in most Latin American constitutions. A ‘territory clause’ is an article in these constitutions, common in regional constitutional practice, that formally expresses the geographical components of the state’s territory, its boundaries and other territorial features by making references both to national or international law concepts (i.e., the continental shelf, the territorial sea, natural resources, and the treaties that have settled boundaries).
Fundamental works about the relationship between international and domestic law, such as the classic article by Cassese, ‘Modern constitutions and international law’,Footnote 8 or Kelsen’s position on the systematic relation between national and international law, have mapped different types of constitutional clauses related to international law.
These authors have created categories such as ‘Constitutions which ignore the question of the implementation of international treaties’, ‘Interpretative devices for enhancing the role of treaties’, ‘Constitutions putting international treaties on the same footing as national legislation’, ‘Constitutions upgrading international treaties to the rank of quasi-constitutional Law’, and ‘Constitutions allowing international treaties to amend the constitution itself’, among others. Against the backdrop of this existing literature,Footnote 9 the present article aims to demonstrate how certain examples of resistance from Latin American states to ICJ judgments neglect the usual effects of other constitutional law or hierarchy clausesFootnote 10 that clearly state that international law is binding upon the state. They ‘weaponize’ the territory clauses to promote a conflict with international law, such as occurred with Colombia, a state that has several clauses in the Constitution that reaffirm the binding nature of international law, but which instead adopted a very particular interpretation of its territory clause as a way to justify its position on the inapplicability of the ICJ judgment of 2012 (Nicaragua v. Colombia) (explained in Section 4).
Past studies which explore the relationship between specific constitutional articles and international law usually refer to the clauses about ratification of treaties or the general hierarchy of international law within domestic law (including the monism and dualism debate), and have not approached the ‘territory clause’ as a constitutional clause that could operate, through different types of usages and interpretations, in favour of or against international law.
Territory clauses can interact with international law in multiple ways: They can expressly mention concepts of international law (e.g., the continental shelf), they can include a legal definition of a territorial space that contradicts the common understanding of that concept in international law (e.g., ‘Mar patrimonial’ in contradiction to ‘territorial’ seaFootnote 11), they can include or disregard judgments from international courts that define boundaries or they can recognize or reject treaties defining boundaries. These conflicts can impact upon compliance with international judgments regarding territory and produce further litigation. It is therefore important to identify the nature of the territory clause, almost omnipresent in Latin American constitutions, and recognize it as a particular regional characteristic that can relate to, and usually conflict with, international law. It is useful to study examples of conflicts that have occurred between these clauses and ICJ judgmentsFootnote 12 as they have become an increasingly common feature in the relationship between the Court and Latin American states.
In the 192 national constitutions available for study,Footnote 13 mentions of the concept of ‘territory’ are not unusual. However, those references to the concept are usually limited to the legal effects of ‘territory’ in other areas of domestic law. For example, many of the world’s constitutions mention ‘territory’ as a criterion for nationality (jus soli) or for the prohibition of expelling citizens from ‘the territory’. Territory can provide the basis for the jurisdiction of national organs or for the distribution of federal/municipal competences within the state. It is also not uncommon that constitutions include articles regarding the negotiating power of certain bodies within the government to negotiate boundary treaties.
Nevertheless, in the context of Latin American constitutions, the express mention of ‘territory’, ‘borders’, and ‘territorial limits’ or similar legal expressions goes beyond those uses. Rather, Latin American constitutions show a recurring presence of specific ‘Clausulas de Territorio’ (or Artículos) which are termed ‘territory clauses’ in the present article. Developing the uti possidetis doctrine in Latin AmericaFootnote 14 (as a way of claiming the national territory inherited from colonial powers and avoiding disputes between neighbours), the territory clause formally prescribes, in a detailed manner, the geographical composition of the national territory, detailing the former administrative divisions inherited from the Colonial powers, including detailed lists of features, mountains, islands, territories, rivers, islands, etc., and often also mentioning the boundary treaties concluded with bordering states.
This Latin American tendency to use territory clauses can be traced historically to the region’s early development of the uti possidetis juris doctrine and, as evidenced in the works of Obregon and Scarfi, the tendency of newly-independent Latin American countries to develop international law through domestic instruments.Footnote 15
Latin American states developed a practice of expressly referring to international law principles, such as uti possidetis juris, in their early constitutions and political instruments,Footnote 16 including both in the post-independence constitutions and in the Pan-American conferences.Footnote 17 This practice seems to have later evolved into more refined clauses referring to boundary treaties that were the consequence of the effective application of uti possidetis between Latin American neighbours or the modification by treaty of the boundaries originally set by them. This is exemplified by the Colombian Constitution of 1886, which at the time included such a clause (Article 3Footnote 18), as did the clauses of later Colombian Constitutions (Article 101. 1991 Colombian Constitution) that will be analysed below.
This context is interesting when examining the cases of states that place their territory clauses in opposition to ICJ judgments since, as explained in Section 4, these clauses in fact developed as a way of incorporating international law (uti possidetis and treaty law) into national constitutions. Their motivation was neither to oppose nor negate the possibility of judicial settlement of territorial matters by international courts, as could be assumed by the arguments underpinning Colombia’s resistance to the 2012 ICJ judgment.
Nowadays, territory clauses usually make express reference to international law concepts; for example, mentioning ‘the continental shelf’, the ‘territorial sea’, the ‘airspace’, and many other spaces defined by international law. Section 4 analyses a number of cases where Latin American states used those references to international law concepts in their territory clauses to oppose an ICJ judgment. Conversely – to provide an argument e contrario – two Latin American states, Peru and Chile, having no territory clause as described above and with no specific references to international law in matters of delimitation or territory in their Constitutions, have more effectivelyFootnote 19 implemented the ICJ judgment in the case between them (Peru v. Chile). Since they had no constitutional norms that could be relied upon to resist the effects of the judgmentFootnote 20 at the national level, they resorted to a bilateral commission to adapt the judgment to their interests. This will also be explained in Section 4.
This presence and proper interpretation of the territory clause in Latin American constitutions is crucial to compliance or non-compliance with ICJ judgments. This is because, even if most of the national legal systems in Latin America include constitutional clauses regarding the supremacy of international law, once an ICJ judgment is produced and national expectations are either fulfilled or unfulfilled, national authorities can invoke and reinterpret the territory clause as a way to resist the judgment’s implementation.
The territory clause can be invoked when its content runs contrary to a recent judgment that affects the territorial features it includes; it can be amended to include the international judgments that the state considers correct, thus constitutionalizing ICJ judgments, while ignoring the judgments that the state dislikes (as we will see in Section 3)
Prior to analysing the cases of Honduras, El Salvador, Nicaragua, and Colombia in relation to territory clauses that directly include or relate to ICJ judgments, it is useful to refer to some representative examples of the general characteristics shared by the territory clauses included in the 32 Latin American constitutions. For example, Article 20 of the Constitution of Brazil includes express mention of landforms, topography, and spaces recognized by international law.Footnote 21 Article 3 of the Panama Constitution combines definitions from the law of the sea and references to bilateral boundary treaties.Footnote 22 There are many more examples of such clauses, that follow the trend of mentioning boundary treaties and listing landforms.Footnote 23
In the following sections, we will elaborate categories of resistance to international courts based upon how these clauses were used to resist ICJ judgments, such as the selective constitutionalization by national legal orders of certain ICJ judgments, or the asserting of contradiction between contents of the territory clause and the contents of ICJ judgments to promote resistance by national executives or courts.
3. Constitutionalization of ICJ judgments in Latin American territory clauses as apparent compliance but real resistance to international law: Four forms of resistance
Although the inclusion of ICJ judgments in the text of national constitutions would seem to be an apparent recognition of the binding nature of international judgments and therefore a way to legitimize the Court, in the cases that will be studied below, constitutionalizing some judgments of the ICJ within the territory clauses has been used for the effect of evading, or delegitimizing, other ICJ judgments in which the state considers itself defeated. This includes judgments that have not met territorial expectations and that the state has decided to leave out of the territory clause. This will be analysed in the cases of Nicaragua and El Salvador, where some ICJ judgments in which the state was involved were constitutionalized and others were not, depending on the interests of the states concerned. Similarly, in Colombia, the territory clause was openly used by the government to oppose the enforceability of the 2012 ICJ judgment in Nicaragua v. Colombia, to the extent that the Executive, supported by civil society, requested the constitutional court to conduct a ‘judicial review’ of the law that ratified the Pact of Bogota, and to find a way to nullify the effects of the 2012 judgment.
Based on the cases elaborated below, a categorization of resistance to international courts can be proposed. This categorization builds on that proposed by Madsen, Cebulak and Wiebusch in their work on ‘backlash against international courts’,Footnote 24 including institutional attack, partial or systemic noncompliance, lack of engagement by national courts with international courts, and negative public discourse. Within the 30 categories of backlash and resistance to international courts recognized by their contributions, this article proposes four categories of resistance whereby constitutional territory clauses are invoked to oppose international judgments.
The theory of backlash and resistance to international courts considers, as a fundamental premise, that at the present time the question of the effectiveness of international judgments depends not only on classic concept of bindingness, or the constitutional considerations such as monism or dualism, but on the concept of authority, explained by Alter, Helfer and MadsenFootnote 25, as that position of legal, political and global-local prestige and influence of international tribunals, which is dependent upon their interactions with other actors such as state agents, their governments and national courtsFootnote 26, civil society and media.Footnote 27
The challenges to its authority that an international court can face in its interactions with these actors have been grouped by research institutions such as iCourts (University of Copenhagen) and PluriCourts (University of Oslo) into two categories: backlash and resistance.
Resistance has been described as an opposition process specifically focused on the judgments of international courts by a recipient state that, facing a judgment that does not meet its legal or factual expectations, performs oppositional behaviours that may affect its full implementation but not the final and binding nature of the judgment or the institutional existence of the court.
The process of backlash is deeper as it not only constitutes resistance by the state to a particular judgment, but mobilizes institutional resources to counterattack, seeking to affect the institutional structure of the international court and, with it, the future participation of the state within that system or even the very resources or existence of the Court (i.e, Venezuela and its withdrawal from the Inter-American Court of Human Rights (IACtHR)Footnote 28 and the OAS). This position, in addition, can be of greater impact for the court, since by criticizing the institution and not only the legal basis of a particular judgment, which is usually only relevant inter partes, it can mobilize collective action by several statesFootnote 29 against the current configuration or the existence of the court itself.Footnote 30
Backlash and resistance can also be seen as two means of criticizing international courts: ordinary critique and extraordinary critique. The first is considered an endogenous, systemic criticism, within the parameters of the court’s activity; it usually refers to considerations of the applicable law, the methodology of the international court and its interpretation of its own case law. On the other hand, extraordinary criticism is an open rejection not only within the parameters of the law, but outside of them: an institutional criticism of the structure of the court, the budget, the scope of jurisdiction, the judges, their election or qualities. It may take the form of a refusal to participate in proceedings, or accusations about its political position or even its morality.Footnote 31
The cases of Nicaragua, Honduras, El Salvador, and Colombia that will be described in the next section can be considered not only as a novelty in the relationships between national constitutions and international judgments, but also as the foundation of four categories of resistance to international tribunals, emanating from the Latin American experience, for the selective incorporation or rejection of international judgments in the constitutional territory clause:
- Reinterpretation of constitutional territory clauses to avoid compliance with judgments of international courts: Article 101 of the Colombian Constitution is a case in point. Its requirements for modifying boundary treaties were reinterpreted to demand unnecessary legal requisites in the implementation of the ICJ judgment of 2012 (Nicaragua v. Colombia).
- Rejection of the international judgment by invoking the territory clause in a constitutional review (judicial review): This occurred in the judicial review before the Colombian Constitutional Court of the Pact of Bogota (the treaty basis of jurisdiction before the ICJ in the cases of Nicaragua v. Colombia) and its corresponding national incorporation law. It was argued that a conflict existed between the territory clause and the Pact of Bogota, and in consequence, the 2012 ICJ judgment should be rejected since the territory clause authorized the Congress – not international courts – to redefine boundaries.
- Selective constitutionalization of international judgments in the territory clause: This situation occurred in the cases of El Salvador and Nicaragua, which demonstrate that although prima facie the constitutionalization of international judgments favours their compliance and seems to legitimize the Court, from the point of view of international law it is an unnecessary mechanism because the binding nature of these judgments emanates from other international sources. Additionally, the state’s approval or rejection of certain international judgments, to be included or not in its constitution, is based on its interest, and by subjectively cherry-picking the successful cases and disregarding the lost ones, it seeks to affect the authority of the international court and compliance with those undesired international judgments that were not constitutionalized.
- Enactment of reactive legislation against the international judgment invoking the territory clause: This fourth form of resistance is evidenced in Colombian instruments that will be explained in the next section, such as the decree of the integral contiguous zone. Following the ICJ ruling, Colombia enacted reactive legislation that challenged its contents, invoking the territory clause and its definition of the national territory.
Along with the four noted forms of resistance, to understand the resistance in Latin America to international law judgments through the application of domestic law, other concepts, such as disengagement from constitutional courts and negative public discourse, are also relevant.
Although the main point in this article is the analysis and formulation of particular categories of resistance based on the constitutional territory clauses and their particular uses against the ICJ judgments in Latin America, it is clear that this problem does not occur in a political void. The process of resisting courts is more complex and admits multiple explanations, especially when exploring the reasons why the states referred to in this article selected constitutional law to resist the ICJ (or at least, portions of their constitutions, while ignoring other constitutional clauses that were favourable to the implementation of international law).
In addition to the work of Madsen, Cebulak and Weibusch, to which this article closely relates, other recent authors on resistance to international courts in Latin America – like Brewer,Footnote 32 Cavallaro,Footnote 33 Contesse,Footnote 34 Helfer,Footnote 35 Huneeus,Footnote 36 Ulfstein,Footnote 37 UrueñaFootnote 38 – and works that study inter-American cases of backlash, such as Soley and Steininger,Footnote 39 have arrived at interesting explanations for resistance through constitutional law when analysing the resistance that international tribunals such as the IACtHR or the Andean Tribunal have encountered in Latin American states. Two of these innovative explanations are relevant to the experience of resistance to the ICJ in the cases analysed in this article.
These are the notions of partnership or engagement with national courts (or the lack thereof) and the notion of resistance through public negative discourse. Most of the works cited above explain how compliance with IACtHR judgments has depended on the level of partnership or engagement between the international court and national actorsFootnote 40 such as constitutional courts, and also on the constitutional independence of the judiciary and the executive. Other factors include the pre-existence of domestic law developed in relation to the international Court, or how constitutional lawyers and national judges have shaped a local authority for the international court that allows effective reception both of its judgmentsFootnote 41 and their legal developments.Footnote 42 In the case of the ICJ and Latin America, the shortcomings in these processes are very relevant and clearly exemplified by the case of Colombia’s constitutional resistance.
During the proceedings on the merits in Territorial and Maritime Dispute, which the Colombian Executive heavily opposed, there was heavy pressure on the Executive to find legal ways to resist the merits judgment. This pressure led, as described below, to a judicial review of the ICJ judgment before the Colombian Constitutional Court, using as a legal basis the territory clause (Article 101 of the Colombian Constitution).
Neither public agents and experts nor the constitutional court had any reasons to adopt a position in favour of compliance or incorporation of the ICJ judgment into Colombia’s domestic system. This is contrary to what had happened with IACtHR judgments, thanks to years of contact between the Constitutional Court, the IACHR and the IACtHR supervision bodies, in-loco visits, shared courses and sessions with national authorities and other successful ways of shaping the IACtHR authority before the national constitutional jurisdiction.
Section 4 will further describe how the Constitutional Court of Colombia faced a conundrum. It had to respond to the negative public discourse, while aiding the executive power’s interpretation of the territory clause. It had to produce a conciliatory judgment that did not amount to an open and grave violation of international law but was still a national decision that met the national expectation of resistance against the ICJ judgment without openly attacking the Court.
Regarding public negative discourse, the aforementioned authors have extensively discussed how national stakeholders such as the civil society, the executive, the press or judges among others, can use negative public discourse to present different levels of resistance to an international judgment. This can run from expressing national discontent about the judgment, openly criticizing its legal reasoning, or publicly criticizing the members of the Court, to promoting real backlash such as withdrawal from jurisdiction.Footnote 43
In the cases of resistance to the ICJ judgments in Latin America, public negative discourse relates closely to the choice of constitutional law resistance. For instance, in the case of Colombia’s resistance to the 2021 ICJ judgment and the 2016 judgments on jurisdiction, the resistance was conducted directly by the President. In his declarations,Footnote 44 the President argued flawed reasoning by the international court, a breach of the principle of res judicata, but also that the Court was acting contrary to Article 101 of the Colombian Constitution that indicates that national boundaries can only be modified by treaty, and invoked the rulings that the constitutional court had produced in these matters (as described in Section 4). These declarations amounted to strong acts of resistance (including considerations of non-appearance) that affected the proceedings that followed the 2012 judgment on delimitation, namely, the ongoing cases Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea,Footnote 45 and Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast.Footnote 46
This public negative discourse relies on the constitutional territory clause in many ways. It is invoked as the domestic legal reason to resist the judgment, intending to show the resistance as a legal act and not as mere political discontent with the judgment. It also relies on the substantive content of the clause, indicating, more than eight years after the state fully participated in the proceedings, that the Court ‘wrongly’ exercised its competence because an international court cannot rule on boundaries, since the constitution stated that they can only be modified by treaty. Arguably, this seeks to grant legitimacy to the declaration and the claims for non-appearance and non-compliance, thus hiding the political nature of discontent with the result.
4. Four cases of clash between ICJ judgments and the national territory clause
Having explained the proposed categories of resistance via the territory clause applicable to Latin American countries and explored the possible ways in which constitutional courts and national authorities choose amongst them, this section applies this analysis to the cases of Honduras, Nicaragua, El Salvador, and Colombia, and comments on the Peru v. Chile and Guyana v. Venezuela cases.
4.1 Honduras and the constitutionalization of the ICJ judgment concerning the Arbitral Award Made by the King of Spain in December 1906 (Honduras v. Nicaragua)
The Constitution of Honduras dates from 1982 and was most recently amended in 2013. Its chapter on territory, which corresponds to the territory clause, includes three articles, with Articles 10Footnote 47 and 11 making extensive reference to territorial features and spaces citing international law, and Article 9 constitutionalizing ICJ judgments. Article 9 reads as follows:
The territory of Honduras is situated between the Pacific and Atlantic Oceans and the Republics of Guatemala, El Salvador, and Nicaragua. Its boundaries with these republics are: 1. With the Republic of Guatemala, those established by the arbitral award issued in Washington, D.C., United States of America, on January 23, 1933. 2. With the Republic of Nicaragua, those established by the Mixed Honduran-Nicaraguan Boundary Commission, in 1900 and 1901, according to the description of the first section of the delimitation line, contained in the second act of June 12, 1900, and in later acts, to Portillo de Teotecacinte, and from that place to the Atlantic Ocean, in accordance with the arbitral award by His Majesty the King of Spain, Alfonso XIII, on December 23, 1906, and declared valid by the International Court of Justice on November 18, 1960. 3. With the Republic of El Salvador, those established in Articles 16 and 17 of the General Peace Treaty signed in Lima, Peru, on October 30, 1980, whose instruments of ratification were exchanged in Tegucigalpa, Central District, Honduras, on December 10, 1980. In the sections pending delimitation the provisions of the pertinent articles of the above-mentioned Treaty shall be applied.Footnote 48
To some extent, the Honduras’ constitutional regime regarding the territory of the state, and its constitutionalization of ICJ judgments provides the model that has been followed by other Latin American countries analysed in this section.
Unlike the territory clauses in Nicaragua’s and Colombia’s constitutions, Articles 9 to 11 of the Constitution of Honduras do not stem from a constitutional reform of the territory clause in reaction to a particular ICJ judgment (as we will see in the case involving the ICJ judgment Nicaragua v. Colombia). Articles 9 to 11 of the Constitution of Honduras form part of an entire constituent process through a National Assembly that occurred in 1980 and that is recognized as having been a rigorous democratic process that inspired similar constitutional agendas throughout Latin America in the 1990s.Footnote 49
Articles 9 and 10 of the Constitution of Honduras constitutionalized the ICJ Judgment in the Case concerning the Arbitral Award Made by the King of Spain on December 1906 (Honduras v. Nicaragua), which was already decided during the period of the National Assembly. They also refer to the territorial features that were the subject-matter of a dispute in a future case, the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras — Nicaragua intervening), which the ICJ decided in 1992.
One of the first observations that one can make about this relationship between national legal orders and ICJ judgments involving territory clauses, is that under general principles of international law, a state does not need to constitutionalize judgments for them to become binding. For this reason, developing a practice of ‘constitutionalizing’ international judgments constitutes a degree of resistance to international law because it imposes an additional requirement for the bindingness of, and compliance with, such judgments under domestic law.Footnote 50 The literature on the ICJ judgments is extensive about questions such as their self-executingFootnote 51 character, and the development of national law after a judgment is one of the ways in which a state can fully complyFootnote 52 with the obligations arising from it,Footnote 53 it is clear that the bindingness of ICJ judgments derives from the ICJ Statute ICJ, the UN Charter, and the instrument on which the Court’s jurisdiction was founded. There is, therefore, no need for a judgment to be incorporated in the constitution to make it binding upon the state. Accordingly, the only practical consequence of this manoeuvre is to add additional constitutional requisites for compliance with the judgment.
Nevertheless, it is worth noting that the Honduran constitutional territory clauses mention all the judgments by relevant international tribunals which were available at the date of the proclamation of the constitution, including the ICJ judgment recognizing the Spanish Award. The articles that compose the territory clause also reflect in an appropriate manner the international regimeFootnote 54 created for the Gulf of Fonseca, which is sharedFootnote 55 with El Salvador, as per the decision of the Central American Court of Justice of 1917.Footnote 56 Therefore, at the moment, the Honduran territory clause does not contradict any international obligations of the state.
Honduran constitutional articles create a complex regime of correlation between delimitation treaties and international judgments. In general, however, they adopt a much more favourable position in respect of international law and the ICJ judgments, than those found in the Colombian or Nicaraguan clauses. For example, Article 12Footnote 57 of the Honduran Constitution recognizes that future international law judgments or provisions can create rights for third partiesFootnote 58 that must be recognized. This would imply a recognition of the 1992 ICJ judgment in the case Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening).Footnote 59
In other words, Articles 9 to 11 of the Honduran Constitution do not intentionally select some ICJ judgments to be constitutionalized while neglecting others, as is the case with Nicaragua’s territory clause.
The Honduran territory clause reflects a narrative in favour of the bindingness of international law as set out in in treaties or judgments. It must be considered, however, that in the case of the Spanish award (1960), the ICJ accepted the Honduran submissions and found Honduran claims valid. The case of Honduras assists in understanding the substantial relationship between the authority of international courts and the nature of territory clauses. This case shows that the presence of a territory clause, even when it includes a reference to ICJ judgments, does not, per se, signify risk to the authority of the Court or invariably lead to a collision between international and domestic law. As noted, the historical nature of the clause was to recognize such international doctrines as uti possidetis juris. The territory clause becomes relevant to resistance when processes such as those described in the proposed categories are triggered by the urge to legalize a negative public discourse. This is a need more typical of state agents than of civil society or the press, and of their desire to legitimize noncompliant behaviour using constitutional norms.
4.2 The Nicaraguan constitution and the cases Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), and Territorial and Maritime Dispute (Nicaragua v. Colombia)
In Nicaragua, where the 2012 judgment in Territorial and Maritime Dispute (Nicaragua v. Colombia) was received as a victory and not as a defeat as it was perceived in Colombia, the direct mention in the constitution of the ICJ judgment was achieved by means of a constitutional reform of the original territory clause (Article 10 of the 1987 constitution):
Article 10. The national territory is set between the Caribbean Sea and the Pacific Ocean and the Republics of Honduras and Costa Rica. In accordance with the judgments of the International Court of Justice of October 8 of the year two thousand seven and of the nineteenth of November of the year two thousand and twelve, Nicaragua limits in the Caribbean Sea with Honduras, Jamaica, Colombia, Panama and Costa Rica.
The sovereignty, jurisdiction and rights of Nicaragua extend to the islands, keys, banks and rocks, located in the Caribbean Sea, Pacific Ocean and Gulf of Fonseca; as well as the internal waters, the territorial sea, the contiguous zone, the exclusive economic zone, the continental shelf and the corresponding airspace, in accordance with the law and the norms of International Law, and the judgments issued by the International Court of Justice …
The Republic of Nicaragua only recognizes international obligations on its territory that have been freely consented to and in accordance with the Political Constitution of the Republic and the rules of International Law. Likewise, it does not accept any treaties signed by other countries to which Nicaragua is not a Contracting Party.Footnote 60
This article, read in conjunction with Article 5(9) of Nicaraguan Constitution,Footnote 61 represents an interesting development in terms of the usage of the territory clause to selectively comply with ICJ judgments.
Special attention must be paid to the first paragraph of Article 10, which constitutionalizes two ICJ judgments in which Nicaragua considers that its border claims were favourably adjudicated upon by the ICJ, while setting aside others where the state’s claims were rejected by the ICJ.
In the ICJ judgment of 8 October 2007, regarding the Territorial and Maritime dispute between Nicaragua and Honduras, it is recognized that the sovereignty of the Bobel Islands, Savana, Port Royal, and Cayo Sur was adjudicated as falling under sovereignty of Honduras based upon the argument of effective Honduran exercise of postcolonial sovereignty, while disregarding any uti possidetis juris claim by either party and denying the Nicaraguan claims.Footnote 62
The ruling, however, clearly favoured Nicaragua, because of difficulties the Court encountered in applying the equidistant line methodology. The Court considered a series of special circumstancesFootnote 63 that were relevant for the delimitation and in favour of Nicaragua. These included the extension of Nicaragua’s territorial sea, the overlap of the territorial seas in Edinburgh Key off Nicaragua, the current characteristics of the water flood of Cabo Gracias a Dios and the sedimentation of the mouth of the river Coco.Footnote 64 All of these were considered relevant points that favoured the maritime claims regarding the delimitation requested by Nicaragua and which were adjudicated in its favour.
In the case against Colombia (2007–2012), Nicaragua followed the same logic of constitutionalizing only the judgments that are favourable to it in Article 10(1) of its constitution. The ICJ did not grant territorial sovereignty over the Islands and Keys of the San Andrés archipelago to Nicaragua, as it had requested in its claims. However, the majority of observers, as well as Colombian public opinionFootnote 65 saw the maritime delimitation produced by the Court as favouring Nicaragua, even though it was carried out in a clear application of the delimitation principles usually applied by the Court.Footnote 66
Indeed, the judgment reconfigures the maritime delimitation in the region. The ICJ judgment ruled that the Colombian practice at the 82nd meridian created no internationally binding boundary and granted new maritime spaces to Nicaragua, and especially exclusive economic zone spaces to the north and south of the Colombian islands.Footnote 67 This judgment was included in the territory clause of Nicaragua.
In the first paragraph of Nicaragua’s territory clause we can find a selective constitutionalization of ICJ judgments, as there are many other territorial judgments and border delimitations binding Nicaragua that were already available at the time of the 2014 amendment process and that were not constitutionalized. These include the ICJ ruling in Arbitration Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), of 1960, and the Land, Island and Maritime Frontier Dispute case with El Salvador of 1992.
Article 10(3) complicates this as its literal tenor can be understood as follows: the Nicaragua constitution does not recognize other international decisions or international treaties by third parties that develop other international obligations (such as other international judgments in the region, even if Nicaragua was a party of the proceedings). The paragraph reads:
The Republic of Nicaragua only recognizes international obligations on its territory that have been freely consented to and in accordance with the Political Constitution of the Republic and the rules of International Law. Likewise, it does not accept any treaties signed by other countries to which Nicaragua is not a contracting party.
In this case, we can clearly see how the territory clause has been amended to include only favourable ICJ judgments and to present to local authorities a domestic legal instrument, to resist other judgments that the state might consider unfavourable. The effects of this are still unfolding considering the recent 2018 decision in the Costa Rica v. Nicaragua Footnote 68 cases in which the Nicaraguan arguments were mostly rejected. In conclusion, the case of Nicaragua exemplifies the proposed category of ‘selective constitutionalization of international judgments in the territory clause’, a category that also includes El Salvador. This case also shows that once the state has decided to use the clause to resist other particular judgments that it considers negative, it can go as far as adopting formulas that challenge the authority of the Court in cases in which it is not involved as a party but fears their third-party effects. An example of this is Article 10(3) of the Nicaraguan constitution. As explained above, this clause implies that Nicaragua will not recognize the effects of any treaty between any other two states that might be the result of the political process of implementing an ICJ judgment. This type of agreement will be studied below in the section dedicated to Peru and Chile.
4.3 El Salvador and the judgment of the Central American Court of Justice, pronounced on 9 March 1917
A different example of the usage of the constitutional territory clauses in relation (and resistance in its own way) to ICJ judgments is the case of Article 84 of the Constitution of El Salvador. Rather than constitutionalizing the ICJ judgments in which the state was involved (1992, 2003), the article constitutionalizes the seminal judgment of the Central American Court of Justice (CACJ) of 1917 in which the CACJ established the regime for the Gulf of Fonseca, which was later used by the ICJ in its adjudication on historical bays in the region.Footnote 69 This is not surprising, as all the Salvadorian claims before the ICJ were grounded in this judgment.
Article 84
The territory of the Republic over which El Salvador exercises jurisdiction and sovereignty is irreducible, and in addition to the continental section, includes:
The insular territory integrated by the islands, islets and cays enumerated by the Judgment of the Central American Court of Justice, pronounced on March 9, 1917, and also others which correspond to it according to other sources of International Law; likewise, other islands, islets and cays that also correspond to it in conformity with international law.
The territorial waters and including (‘en comunidad’) the Fonseca Gulf, which is a historic bay with the characteristics of an enclosed sea, whose regime is determined by International Law and by the judgment mentioned in the preceding paragraph.
The air space, the subsoil and the corresponding insular and continental platform; and moreover, El Salvador exercises sovereignty and jurisdiction over the sea, the subsoil and sea beds to a distance of 200 nautical miles, counted from the level of the lowest tide, all in conformity with the regulations of international law …Footnote 70
In 1983, El Salvador included a territory clause in its new constitution, that expressly referred to the CACJ judgment of 1917 that established the regime of the Gulf of Fonseca under the notion of ‘historical bay’ and adjudicated on the sovereignty and special regime of the Salvadorian maritime formations in the area. El Salvador has considered this CACJ judgment a favourable one and, although it is intended to establish a common shared regime, its neighbours have subsequently argued for increased rights and a different delimitation of the maritime spaces. Nicaragua, El Salvador, and Honduras have had several disputes regarding the delimitation of the Gulf and the regime on the maritime formations, that led to two ICJ judgments.
The first case had its judgment in the merits in 1992 after a joint application from El Salvador and Honduras in 1986Footnote 71 (a very short time after the CACJ judgment was mentioned in the constitution). In the judgment, from El Salvador’s perspective, the ICJ partially changed the CACJ delimitation and its effects. It adjudicated that the new concepts of modern law of the seas, that have developed since 1917 led to new rights in the three states regarding territorial sea, continental shelf and EEZ that had not been adjudicated in the CACJ decision and that the states were bound to resolve by mutual agreement. This point of the 1992 judgment, and other issues, led El Salvador to file a request for revision in 2002. This request was unsuccessful.Footnote 72 Under the constitutionalization of the CACJ judgment in the territory clause of the 1984 constitution, El Salvador has, on the one hand, implemented the sections of the 1992 ICJ judgment that follow the aspects of the CACJ judgment that it considers favourable in respect of the Gulf of Fonseca regimeFootnote 73 though rejecting others.Footnote 74 On the other hand, it has constant diplomatic disagreements with its neighbours on the regime that the ICJ clarified in the 2003 judgment on the application for revision of the 1992 judgment.
4.4 Colombia: Article 101 as the national territory clause and its clash with the Territorial and Maritime Dispute (Nicaragua v. Colombia) judgment
The Colombian territory clause includes all the previously described elements of a ‘territory clause’ including provisions on the treaty powers of certain branches of government regarding boundary treaties, and also directly mentions geographical features of the state and concepts of international law related to maritime spaces. It reads as follows:
Article 101. The limits of Colombia are those established in the international treaties approved by the Congress, duly ratified by the President of the Republic, and those defined by the arbitration awards in which the Nation is a party.
The limits indicated in the manner provided by this Constitution may only be modified by virtue of treaties approved by Congress, duly ratified by the President of the Republic.
Also are part of Colombia, besides the continental territory, the archipelago of San Andrés, Providencia, and Santa Catalina, the Island of Malpelo and other islands, islets, cays, hills and banks that belong to it.
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 where it acts, are also part of Colombia. According to International Law or with Colombian laws in the absence of international standards.
The first two sub-paragraphs of Article 101 of the Colombian Constitution have been used as a basis to argue that the ruling in Territorial and Maritime Dispute (Nicaragua v. Colombia), judgment of 19 November 2012 is only enforceable if there is a new treaty between Nicaragua and Colombia (a situation Nicaragua refuses to accept).
The situation in the dispute with Nicaragua differs from the situation which Article 101 seeks to regulate. In 2012, the ICJ ruled that there was no maritime boundary between Colombia and Nicaragua, because the Esguerra Barcenas treaty did not contain a maritime delimitation and that such a boundary was never agreed between the parties. The ICJ then proceeded to determineFootnote 75 the maritime delimitation: the boundary and the delimitation in the area between the Archipielago de San Andres, Providencia y Santa Catalina and the continental coast of Nicaragua is created from scratch by the judgment of 2012. It did not exist in any previous treaty. This makes it impossible to apply Article 101, which requires a treaty approved by Congress because this boundary is not being modified from a previous treaty, as Article 101 requires, but was established in the first place by a judgment.
The 2012 ICJ judgment recognizes as Colombian territory the same geographical features mentioned in Article 101 in its third paragraph. The ICJ judgments from 2007 and 2012, and Article 101, the national territory clause, recognize the archipelago, claimed by Nicaragua in 2001, as Colombian territory. The acts of resistance explained here, that opposed Article 101 to the judgment because it allegedly described the Colombian territorial features in a different way, therefore have no real basis. Since both Article 101 and the ICJ judgment recognize the Archipielago de San Andres, Providencia y Santa Catalina and their adjacent maritime spaces as Colombian, the territory clause cannot be represented as an obstacle to compliance by local authorities with the 2012 ICJ judgment, despite the negative public opinion discourse against it.
However, based on a questionable reading of Article 101 which promotes ‘non-compliance’ with the judgment and the use of national case law on constitutional judicial review of treaties in Colombia, the President of the Republic of Colombia and others, presented a lawsuit through a ‘public action of unconstitutionality’ (a request for judicial review) against the National Law approving the Treaty of the Pact of Bogotá, in Article XXXI.Footnote 76
The plaintiffs argued that Article XXXI was ‘unenforceable’ under the Constitution and that Article 101 did not permit judicial settlement as a method for modifying the state’s borders. However, the Constitutional Court opted for a more conciliatory position: (i) it confirms the possibility of judicial review, (ii) highlights the state’s commitment to the doctrine of pacta sunt servanda that renders compliance with the Pact of Bogota and the ICJ judgment mandatory for the state,Footnote 77 but (iii) interprets Article 101 in the manner already criticized, understanding it as a provision that requires a treaty to modify a boundary, instead of recognizing that the Article 101 allows judicial settlement of boundaries and that the ICJ judgment is not modifying, but establishing one. The Constitutional Court therefore considers that the procedure by which the 2012 ICJ judgment becomes binding and applicable in national law is by means of a treaty, because of what is established in Article 101 as the role of Congress in the ‘modification of the boundaries’:
9.14. Therefore, the Court will declare the CONSTITUTIONALITYFootnote 78 of Article XXXI of Law 37 of 1961 which approved the Pact of Bogotá, as recognition of the jurisdictional authority accepted by the Colombian State since October 14, 1968 for the judicial solution of disputes on international affairs, under the understanding that the decisions of the International Court of Justice adopted in relation to border disputes must be incorporated into the national legal order through a duly approved and ratified treaty, in accordance with Article 101 of the Colombian constitution.Footnote 79
It is important for the Constitutional Court to recognize pacta sunt servanda as the source of the binding nature of the ICJ judgment and to uphold the constitutionality of the Pact of Bogota (as a treaty properly signed that does not violate any constitutional norm). However, by deriving additional requirements for the bindingness of the ICJ judgment from constitutional rules that are not applicable to the creation of a boundary by the ICJ, the Constitutional Court undermines compliance with the ICJ judgment. It is not surprising that Nicaragua responded that the 2012 judgment is binding upon Colombia and does not require any further development of domestic law or a treaty between the parties to become binding.
Due to the opposition of Colombia to the ICJ judgment (including National Decree 1946 of 2013Footnote 80 that defines a ‘integral contiguous zone’ around the archipelago that collides with the sovereign rights determined by the ICJ), Nicaragua instituted proceedings against Colombia for non-compliance with the 2012 ICJ judgment in the new case Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), 2013. This case is still pending before the Court.
As set out above, the literature about challenges to the authority of international courts and negative public discourse describes such processes as increasing resistance or the shift in critique from ordinary to extraordinary.Footnote 81 Colombia is a case that exemplifies how negative public discourse can lead to a successive and correlated progression of resistance. In the case of Colombia, first there was the reinterpretation by state agents and civil society of Article 101 against the ICJ judgment; second, the President denounced the Pact of Bogotá; third, the territory clause was invoked before the Colombian Constitutional Court; and fourth, after the Constitutional Court ruled against the self-executory nature of the judgment, the Executive produced reactive legislation based upon the clause to counter the effect of the judgment.
4.5 The bilateral implementation of the Peru v. Chile case
Having examined Colombia’s territory clause-based resistance to the 2012 ICJ judgment, it is relevant to consider the implementation process of the 2014 judgment in Peru v. Chile. This case has several similar issues to those that led to resistance in the Nicaragua v. Colombia case, including the fact that one of the states was not party to UNCLOS and the Court rejected the position of both states as to a pre-existing maritime boundary and decided to draw its own. However, a major difference is that neither Peru nor Chile had a strong territory clause in their constitution. Their rejection of certain sections of the judgment were therefore more moderate, and both states, having no domestic legislation that could support the Executive’s resistance, showed political willingness to implement it. They created a binational implementation commission for the judgment, in which it was possible to smooth over the most sensitive points of the ICJ judgment. This suggests that when public negative discourse cannot be supported in law by a biased or exaggerated interpretation via territory clauses, the efforts of resistance may lack sufficient constitutional support and the states may decide to achieve compliance by bilateral agreement.
In the case of Chile, the judgment was followed by several Presidential declarations (Cancillería Chilena – Declaration of January 27 of 2014Footnote 82) which referred to certain rejections of the delimitation issued by the ICJ, but explained that gradual and bilateral implementation was possible. They praised how the judgment respected and preserved the previous Chilean rights over the EEZ, territorial sea, and the zone near Arica (the most disputed sector) and stated that the Pact of Bogota was a binding instrument along with the ICJ judgment. Furthermore, they made no references to constitutional clauses.Footnote 83
Peru also declared that bilateral implementation of the judgment was the best decisionFootnote 84 and joined Chile in the creation of a Permanent Committee for Consultation and Political Implementation of the Judgment (The 2+2 CommitteeFootnote 85). Peru’s position on the judgment was mostly favourable and there was no negative public discourse from official sources. The judgment was received as a victory in the state, and there were no specific clauses in the constitution regarding territorial issues or international judgments that could have been invoked.
Shortly after the ICJ ruling, the Presidents of Chile and Peru met at the CELAC (The Community of Latin American and Caribbean states) summit in Cuba and agreed to set a meeting of their ministers of foreign affairs and defence. In consequence, the joint statement of 6 February 2014Footnote 86 was issued, which dealt with the enforceability and implementation of the ruling. Unlike the Colombian case, in these diplomatic exchanges, none of the states invoked any rule of domestic law to avoid enforcing the judgment. On the contrary, Chile and Peru began a process of joint and co-ordinated compliance of the judgment.
With the aim of determining the base-points of the coasts subject to the ruling, the low-water line and the starting point of the maritime delimitation, Peru and Chile proposed in their declaration a roadmap for the execution of the judgment.
Consequently, both Peru and Chile complied with their joint implementation plan by making the pertinent measurements. The result was a record (ActaFootnote 87) that enshrined the co-ordinates of points 1, 2 and 3, and point C of the delimitation (all following the general parameters adjudicated by the Court in the 2014 judgment).
For example, the ‘Act of the Director General of Sovereignty, Limits and Antarctic Affairs of Peru and the National Director of Borders and Limits of the State of Chile’ enabled the integration of technical and cartographic works that allowed the identification of maritime boundary points. This case is an example of how the political will of the states can replace a public negative discourse that can arise in promptu to an international judgment, through either domestic or bilateral enforcement instruments that develop the obligations that arise from the judgment.
Another example of political will on the part of Chile and Peru were the adaptations made in their domestic legal systems. Specifically, Chile is in the process of a legislative modification to its sea-faring laws, and Peru has already modified rules on navigation, baselines and sovereign spaces, to improve the harmony between Peruvian law, the 2014 judgment and UNCLOS.Footnote 88
4.6 The current proceedings in the Guyana v. Venezuela: Non-appearance and resistance to the ICJ jurisdiction judgment of the 18 December 2020 based on Venezuela’s territory clause
Another Latin American territorial dispute raising resistance by constitutional territory clauses is currently on the ICJ docket. It consists of the application by Guyana against Venezuela concerning the legal validity and binding effect of the award regarding the Boundary between the Colony of British Guiana and the United States of Venezuela, of 3 October 1899 in the context of their dispute for the Essequibo territory or Guyana Esequiba. This is a territory of about 160,000 km2, rich in natural resources, and currently under the sovereignty of Guyana, but claimed by Venezuela.
Guyana has presented the Court with an interesting and clever application, claiming that under ‘The Agreement to Resolve the Controversy between Venezuela and the United Kingdom of Great Britain and Northern Ireland over the Frontier between Venezuela and British Guiana signed at Geneva on 17 February 1966’ (Geneva Agreement) the parties mutually conferred upon the Secretary General of the United Nations the authority to choose the means of settlement of this dispute, which was exercised by the Secretary General on 30 January 2018, by choosing a judicial settlement before the Court.Footnote 89 With this election, Guyana presented its application on March 2018 requesting the Court to adjudicate the validity of the award and the boundaries set by it and its bindingness upon Guyana and Venezuela, to declare Guyana’s sovereignty in the disputed territory, the withdrawal of Venezuela from some occupied parts of the territory such as Isla Ankoko, to order that Venezuela must cease with any threat or use of force in the area, and to declare Venezuela responsible for violations of Guyana’s sovereignty and sovereign rights. Guyana was mostly successful with its application and the Court foundFootnote 90 it had jurisdiction to ‘to entertain the Application filed by the Co-operative Republic of Guyana on 29 March 2018 in so far as it concerns the validity of the Arbitral Award of 3 October 1899 and the related question of the definitive settlement of the land boundary dispute between the Co-operative Republic of Guyana and the Bolivarian Republic of Venezuela’ (although it found it lacked jurisdiction for events before the signature of the Agreement).
Since the beginning, Venezuela has rejected the jurisdiction of the Court, arguing that the Geneva Agreement does not constitute a jurisdictional basis under Article 36.1 of the Statute of the ICJ. It has also opposed Guyana’s claims on the merits. As early as June 2018, Venezuela declared that it would not participate in the procedures. Venezuela’s rejection of the jurisdiction and the claims of Guyana and its non-appearance before the Court are both acts of constitutional resistance via the invocation of constitutional territory clauses and acts of public negative discourse conducted through non-official communication with the Court.
The Constitution of the Bolivarian Republic of Venezuela (BRV) of 1999 includes two articles that constitute territory clauses and in particular, Article 10 makes direct reference to the Essequibo dispute, by stating that the territory of the state is that which was set by uti possidetis juris in 1810 and those treaties and awards that are not void. This is a position that precisely contradicts the content of the 1899 award and reaffirms the position of Venezuela on its invalidity:
Article 10 Constitution BRV. The territory and other geographical spaces of the Republic are those that corresponded to the Captaincy General of Venezuela before the political transformation that began on April 19, 1810, with the modifications resulting from the treaties and arbitration awards not vitiated of nullity.
This territory clause in the Bolivarian Constitution (National) is supplemented and accompanied by a territory clause in the Federal constitution of the State of Bolivar (2001), which expressly establishes in Article 15Footnote 91 that (i) the territory includes the claimed territory of Guyana, (ii) the 1899 award is null and void, and (iii) that the Geneva Agreement only allows a bilateral settlement of the dispute (excluding the possibility of an international judgment) and mandates federal state authorities to publicly reject the award in any public reference to the territory. Moreover, the Federal Constitution of the State of Delta Amacuro,Footnote 92 in Article 20, states that the state’s territory state includes the zone under claim with Guyana.
These constitutional territory clauses have been used in several official declarations of the Executive that reject the proceedings before the ICJ, announce the non-appearance of VenezuelaFootnote 93 and oppose several developments in the case such as the fixation of limits for the hearingsFootnote 94 and the December 2020 judgment.Footnote 95 Additionally, these territory clauses have been used by the Executive to oppose different declarations of sovereign acts of Guyana and to produce legislation that directly affects the dispute. This includes the recent production of a decree of an ‘Atlantic Front’ that declares several maritime areas in the disputed spaces as part of the sovereign territory of Venezuela.Footnote 96 Additionally, in June 2020, a Mixed Congressional Commission was appointed under the constitutional authority of the territory clause, to ‘defend the country from the exploitation’ and the Commission’s Final Declaration,Footnote 97 produced in response to the hearings of June 2020, stated that the non-appearance and rejection of the judgment by Venezuela was performed under the constitutional authority of Article 20 that declares the nullity of the Award of 1899. This political document was highlighted by the national press, accused the UN Secretary General of neglecting Venezuela’s position, accused the ICJ President of ignoring the Venezuelan willingness to apply the Geneva Agreement, and accused Guyana of lying to the Court and behaving as an expansionist power.Footnote 98
This behaviour clearly falls within the categories proposed above on the use of constitutional law and territory clauses to oppose international law and the ICJ and relies heavily on negative public discourse, mostly internally, to promote a national position against the proceedings and the Court. The main consequence – non-appearanceFootnote 99 – has already occurred. Judgments of the ICJ are binding upon the non-appearing party.Footnote 100 One of the effects of non-appearance that this case has activated is the possibility for the absent party to communicate informally with the Court.Footnote 101 This was performed by Venezuela with a Memorandum,Footnote 102 which notably does not mention its constitutional law and only refers to the state interpretation to the Geneva Agreement. The fact that Venezuela exacerbates the use of the territory clause for domestic consumption, but reduces it when interacting with the Court, shows that this exercise of resistance has very soft legal grounds when it comes to international law. It instrumentalizes domestic law, under the control of the Executive, to mobilize political power within the country to carry out conduct of non-compliance.
5. Conclusions
Recent ICJ judgments in Latin America face strong challenges to their compliance from national authorities. These challenges are not resolved through their national constitutions per se and compliance usually falls to the determination of constitutional judges and the Executive’s acceptance or resistance to the ruling.
The existence of territory clauses in most Latin American Constitutions, within a context of emerging litigation of boundary issues before the ICJ, is a very particular characteristic of these national legal systems. They directly create new and uncharted forms of legal collision between international law and domestic law, as well as resistance to international courts, and have led to peculiar results in sensitive delimitation cases involving Nicaragua, El Salvador, and Colombia. The way in which these states have challenged the Court´s authority can be analysed according to four categories of resistance: (i) reinterpretation of constitutional territory clauses to avoid compliance with judgments of international courts, (ii) rejection of the international judgment by invoking the territory clause in a constitutional review process before national courts; (iii) selective constitutionalization of international judgments in the territory clauses; and (iv) production of reactive legislation against the international judgment invoking the territory clause.
The original, postcolonial nature of the territory clauses was, historically, in favour of international law by recognizing principles such as uti possidetis juris and pacta sunt servanda as being applicable to boundary treaties between newly independent Latin American states. The clauses were mostly harmless vis-a-vis ICJ judgments that decades later involved the state, as was the case with Honduras. But after more delimitation claims came for the ICJ for resolution, Latin American states found in their territory clauses an effective means of resistance which supported negative public discourse against the judgments while providing constitutional means of opposing full implementation of the ICJ’s decisions. It is important for the Court’s authority in the region that there be improved engagement between state agents involved in ICJ litigation and other national stakeholders, clarification of the sources that render the judgments binding, and demonstrations of how the clauses legally do not oppose the ICJ judgments. This importance is manifest as new cases, such as the Guyana v. Venezuela case, exhibit resistance behaviours based upon the instrumentalization of constitutional law by the Executive.
Some broader theoretical issues about international court authority may be noted as well. First, there are differences between the ICJ and other tribunals with very different mandates, particularly in the way they can respond to resistance. Several of the authors on resistance to international courts in Latin America have studied the cases of the IACtHR and the Andean Tribunal, among others,Footnote 103 and a logical result of their studies was that in order to address resistance, there is a need for international courts to intensify their engagement with local tribunals and other international courts,Footnote 104 to expand their dialogue with constitutional lawyers, and even to work directly with state agents and civil society in the supervision procedures usually included with regional human rights courts. Without profound reform, these measures would be a great challenge to implement in a more classical state-vs-state Court such as the ICJ, where procedures do not involve individuals as parties and there is no standing before the Court for representatives of the civil society. Further, there are limits on public outreach during the process, not only due to the composition and location of the Court but also the very strict and diplomatic setting in which the relationship between the applicant and respondent states develops before the ICJ. This situation is even more challenging when a judgment touches issues that directly trigger ‘patriotic feelings’ such as territorial sovereignty or maritime delimitation.
However, a recommendation may be made for a measure to be taken within states: improving the professionalization of the legal and public relations staff involved in the outreach and reporting efforts that come before and after an ICJ judgment. We see this is the Nicaragua v. Colombia case. Incomplete, alarmist, and unclear explanations of a very complex case, delivered by the state to the civil society (see Section 4), predetermined an increasingly negative public discourse in Colombia. This led the Executive to shift from presenting an optimistic view of the case in the early stages to a comprehensive exercise of resistance including Presidential Declarations, threats of non-appearance and, later, implementing the categories of resistance by invoking the territory clause. The much-needed professionalization of the civil servants dedicated to international litigation has started recently in Colombia, with the creation in 2011 and its implementation in 2017–2019 of a new Agencia Nacional de Defensa Jurídica del Estado – National Agency for Legal Defense of the State.Footnote 105 It was created to centralize these efforts, once scattered among the Ministry of Foreign Affairs and countless other Ministries. The Consejo de Defensa Jurídica del Estado in Perú and the Consejo de Defensa del Estado in Chile are other working examples in the region.
These agencies have been created largely in response to the budget-oriented awareness that arises from expensive judgments against the state in forums like the IACtHR and the International Centre for Settlement of Investment Disputes. But these agencies need to fully engage public opinion on international courts more broadly, including the way in which international judgments are explained to civil society. This is because, when we take into account the theoretical relationship between ‘backlash and resistance’,Footnote 106 singular constitutional ‘resistance’ behaviours to specific judgments can give rise to other consequential challenges to the Court’s authority, that amount to ‘backlash’. An example of such ‘backlash’ is Colombia’s decision to denounce the Pact of Bogota in 2012 following the merits decision in Nicaragua v. Colombia. This denunciation echoed throughout the region and was considered by some Chilean politicians in 2015 following the judgment in Peru v. Chile and in 2013 as a consequence of the application of Bolivia in the case Obligation to Negotiate Access to the Pacific Ocean.Footnote 107 Another example of this ‘backlash’ would be the ‘extraordinary critique’ that Venezuela is presenting on the role of the UN Secretary General in international dispute settlement by peaceful means, as a result of its resistance to the current ICJ proceedings, and its non-appearance in the Guyana v. Venezuela case. Only by broader, deeper and more informed engagement, led by state, can such backlash be avoided.
