Latin America's Open Wounds

“The unity of our peoples is not a mere chimera of men but an inexorable decree of destiny. Let's unite and we'll be invincible.” Simon Bolivar said those words that often come to light at the summits of presidents and in official documents. In both cases, against a single backdrop: the integration of Latin America.

Two centuries later, the facts show that this dream of the Liberator of five nations remains a pipe dream. At least this is indicated by the multiple fractures that conspire against that possibility. One is the economic orientation of the markets, more aimed at the United States and the People's Republic of China than the other countries of LATAM. Two, the abrupt changes in foreign policy, depending on who governs and what ideological edge it represents. And three, among others, the excessive local zeal that, without reaching levels of exacerbated nationalism elsewhere, does mark borders beyond the geographical.

But there is another open front worth looking at: the protracted territorial disputes between neighbouring countries and their effects on integration. In reality, Latin America has more lawsuits than appear at first sight and, perhaps most worryingly, almost all of them come from old times without an agreement being seen on the horizon.

The differences between Colombians and Nicaraguans, who have just been the subject of a ruling by the International Court of Justice, date back to 1969, when Nicaragua handed concessions to private individuals to search for oil around Quitasueño. It is a Caribbean cay belonging to Colombia in the light of history and the legal principle uti possidetis Iuris of 1810, according to which the boundaries of the political divisions of the Spanish colonies in that year would serve as the basis for the border agreements of the newly independent countries.

Since then, the case has had a series of ups and downs, including a decision in 2007 that ratified Colombia's sovereignty over Quitasueño and two other keys (Roncador and Serrana), as well as the archipelago and current tourist epicenter of San Andrés, Providencia and Santa Catalina. The magistrates were then based on a Royal Order of 1803 in which the Captaincy General of Guatemala transferred these islands to the Viceroyalty of New Granada, as part of a strategy to combat pirates. In addition to a treaty, the Esguerra-Bárcenas, signed in 1928 and ratified in 1931 by mutual agreement between the two nations.

In 2012, the accounts were reversed. Since 1980, Nicaragua had decided to undertake the task of recovering what it considered its own. To this end, he appealed to another historical view: According to them, the Nicaraguan side had signed the agreement when it was under the control of the United States. Thus, ten years ago, the Court adopted a curious Solomonic formula halfway: it ratified Colombia's sovereignty over the archipelago and several keys, but reduced its ownership of the Caribbean Sea by 43%, more than 72,000 square kilometers of seabed that passed into Nicaragua. Disgusted, Colombia withdrew from the so-called Bogotá Pact, which recognizes the jurisdiction of The Hague in this type of conflict.

Faced with a new lawsuit by Nicaragua, the Court ruled on April 21, by 10 votes to 5, that Colombia “has violated Nicaragua's sovereign and jurisdictional rights” by interfering with fishing activities in its waters and, by 9 votes to 6, that Colombia “must immediately cease such conduct.”

But as Carlos Gustavo Arrieta, one of Colombia's defense lawyers, reported, The Hague also “recognized that all Colombian islands and cays in the Caribbean are entitled to a contiguous 12-mile zone beyond the territorial sea, which is of enormous relevance to the extent that it allows us to reintegrate the archipelago.” The court also “recognized that the Raizal community has fishing and transit rights around the San Andrés and Providencia archipelago that must be recognized and protected by the States.”

The ICJ ruling should give way, according to experts, to a new round of bilateral negotiations to agree on how to fulfill mandates in the most appropriate way for both parties. Something very unlikely amid the current tense political climate between the governments of Iván Duque and Daniel Ortega, more loaded with swords high than with a spirit of conciliation.

For their part, Bolivia and Chile are currently leading a case that originates in the waters of the Silala River, which witnessed the Pacific War in 1879, a conflict in which Bolivia, then allied with Peru, lost its way to the sea to Chile, in the Antofagasta area.

Since then, both nations have engaged in a legal struggle in which arguments abound from side to side. Bolivia says that Chile uses water that does not belong to it and for which it should pay. Meanwhile, Chile claims that the river is a slope that, when it is born in the neighboring country and flowing into its territory, has an international character. To this, Bolivia has reposted with allegations that this channel is not the initial one since, they say in La Paz, there are deviations made on purpose by Chilean companies to which the Bolivians themselves gave their use in the past through a concession.

But the arguments of part and part have not always been restrained. In 2016, then-President Evo Morales had no problem accusing Chile of “stealing” the Silala river stream and launched a lawsuit. His counterpart Michelle Bachelet responded with a counterclaim. The ICJ must now decide who is right. When? There is no exact answer to that question.

Now the Court's agenda, always in the long term, after the passage of these two Latin American cases of wide media exposure, will surely deal with others from the subcontinent that remain open. In this regard, an extensive and comprehensive work by BBC Mundo shows the wide and long panorama of these disputes in the region. The following appear there:

- Guyana and Venezuela for El Essequibo, a litigation that has been open for almost 180 years, with two elements that complicate it enormously: that this territory has oil and that Venezuela aspires almost half of Guyana's territory.

- Guatemala claims from Belize 11,000 square kilometers, for a concession that Spain made to the British Crown 160 years ago.

- El Salvador wants to take away Honduras's exit to the Pacific Ocean through the Gulf of Fonseca. It does not know what was agreed on that same area between Honduras and Nicaragua.

-Argentina and Chile have a dispute over Drake's passage, about 5,500 square kilometers that Argentina considers their own, but which appeared in 2021 on a nautical chart that then-president of Chile Sebastián Piñera made official.

Several of these discussions are being handled by the court in The Hague. Others remain open, such as that of Argentina and the United Kingdom for Las Malvinas; Brazil and Uruguay by the people of Thomas Albornoz and the Brazilian Island (two different cases); and Haiti with the United States for the island of Navaza. All of this, according to the BBC inventory, together with Bolivia's very traditional and well-known desire to have a way out to sea, an aspiration that its neighbor Chile does not want to consider and that has already passed through the ICJ.

Over the years, these disputes have become another stone on the road to Latin American integration. In fact, tensions increase, even more so when, on most occasions, the bulk of the population is unaware of the origin of the disagreements, many of them linked to technical or very little known aspects of history.

“After achieving independence,” Enrique Prieto-Ríos, professor of International Law at the Universidad del Rosario in Bogotá, told CONNECTAS, “Latin America adopted a principle, the uti possidetis Iuris of 1810, to set the borders of the new states. But, of course, these limits do not necessarily reflect their interests nor do they necessarily reflect the cultural union of some regions that had been linked to these new geographical-administrative orders.”

That is why, from the second half of the 19th century and the first half of the 20th century, armed conflicts arose because of the claim of some country, always rigged or favourable to its own interests. In such an environment, few winds blew in favor of integration.

Things changed with the possibility of having a specialized arbitrator, in this case a tribunal such as the International Court of Justice. This makes the stands the civilized way to seek agreements and, as Prieto-Ríos says, “prevents these cases from falling into the hands of governments that politicize them and leading to unfortunate feelings of nationalism being made of them, which can end in bordering bilateral or multilateral conflicts.”

What then happens as a result of these events with integration? “Well, says the analyst, that the healthiest thing to generate a process of Latin American integration is for all these conflicts to be defined by a neutral, impartial third party, with respect for their technical knowledge, as is the case of the International Court of Justice”:

For all that, it's not all bad. Although Latin America is the source of 40% of the lawsuits that the ICJ is aware of, that same circumstance demonstrates the traditional willingness of their governments to make things right. For Diego García-Sayán, former Minister of Justice and Foreign Affairs of Peru, “the map of Latin America remains geographically unchanged, solid. And there are no real threats to the contrary. This is not a sign of indifference to outstanding issues that may exist between neighbouring countries, but of a widespread — and exemplary — submission to the law.” And he describes as a “historical record” the fact that recent “pending issues” for border disputes between Latin Americans were all submitted to the jurisdiction of the ICJ.” And not “derived (...) to infanteries, fighter-bombers or frigates, or other processing warfare channels,” he wrote for a column in El País de Madrid.

Although perhaps as important as taking advantage of the courts is the spirit of respecting those judgments. Or as Sergio Molina, doctor of American Studies, said about the Silala Tele 13 case, “how are we able to manage an eventual victory (on the stands) or how we are able to administer a defeat. There is the capacity to assume a better future between the two nations and not continue these quarrels. Because today it will be the Silala, tomorrow something else.” A statement also very applicable to the case between Colombia and Nicaragua, with the Caribbean in between.

Every week, the Latin American journalism platform CONNECTAS publishes analysis of current events in the Americas. If you are interested in reading more information like this, you can access this link.

*The author is a member of the CONNECTAS editorial board

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