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  Number 222 | Enero 2000
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International

Key Elements of the Honduras-Nicaragua Territorial Conflict

Nicaragua filed a territorial dispute case against Honduras at the International Court of Justice in The Hague, which opened on February 4. It promises to be a costly process that could last anywhere between three and five years. Augusto Zamora, who played an important part in the country’s eventual victory over the United States at the same Court in 1986, explains Nicaragua’s position below.

Augusto Zamora

On November 30, 1999, Honduras suddenly and secretly ratified a treaty it had signed with Colombia over a decade earlier, on August 2, 1986, in which both countries laid claim to extensive areas of Nicaragua’s marine and submarine territory. Honduras’ action has significantly shifted the political reality in Central America by undermining the move towards regional integration re-launched in 1990 following the Sandinista revolution’s electoral defeat, and by handing Colombia an unwonted leading role in Central American affairs. The region is already paying a high price for this breakdown in relations, as a recent crisis in the Central American Court of Justice demonstrates.

These events are a triumph for Colombia’s expansionist pretensions in the Caribbean at the expense of recent efforts to bring about Central American union. They are also yet another consequence of US foreign policy in the 1980s, under whose shadow Honduras and Colombia originally signed the treaty in 1986. That was the year the US aggression against Nicaragua reached its peak, and the signing came only two months after the Contadora and Support Groups handed in their last proposal for Central American Peace and Cooperation, which, like its predecessors, was rejected by the United States and its Central American allies. As always, understanding the current conflict requires going over the historical background.

Colombia bases its expansionism
on military superiority

For decades now, Colombia has sought to use its dominion over the small islands of San Andrés and Providencia, off Nicaragua’s Caribbean coast, to dominate the heart of the central Caribbean area. The islands have been disputed by Nicaragua and Colombia since the 19th century. Nicaragua was forced to recognize them as Colombian in 1928, through the US imposition of the illegal, injurious and unconstitutional Bárcenas-Esguerra treaty. Nicaragua was under US military occupation that year, a foreign intervention being contested by General Augusto C. Sandino’s guerrilla army. The US used the treaty to compensate Colombia for its loss of Panama, a province that the United States had snatched away in 1903. Occupied Nicaragua offered a convenient bartering chip for that imperial transaction.

The United States and Colombia also signed the Olaya-Kellog pact that same year, which handed Colombia the Roncador, Serrana and Quitasueño keys and their banks—although without going as far as recognizing its sovereignty over them. The treaty overlooked Nicaragua’s geographical rights to those keys, which form part of its continental shelf.

At that point, Colombia initiated a policy of impositions, which would turn into maritime expansionism with the emergence of the new Law of the Sea in the late 1960s. In summary, Colombia’s intention is to use its military superiority to help impose the 82nd meridian as its maritime border with Nicaragua, with all territories east of the meridian considered Colombian. To sustain that claim, it has turned San Andrés Island into a large military base, from which it sends out warships to prevent Nicaraguan boats from crossing the imposed limit. Meanwhile, the Colombian air force flies over the zone detecting any "intruders"—read Nicaraguan vessels—in the prohibited waters.

Closing a net around Nicaraguan territory

Nicaragua never relinquished its rights over its continental shelf, territorial seas or what is known today as the exclusive economic zone. In fact, it has constantly maintained a claim to them, culminating in the promulgation of its Law on the Continental Shelf and Adjacent Sea on December 15, 1979, and its declaration on February 4, 1980 that the 1928 treaty was null and void. With these documents, Nicaragua reconfirmed its rights to its insular, marine and submarine domains in the Caribbean Sea.

The 1986 treaty recently ratified by Honduras is a continuation of Colombia’s policy of signing maritime delimitation agreements in an attempt to gain recognition of its expansionist pretensions in the Caribbean, and thus present Nicaragua with a fait accompli. In Central America, Colombia has signed treaties with Panama (on November 20, 1976) and Costa Rica (on March 17, 1977), the latter of which was the subject of an official Nicaraguan protest. The treaty signed with Panama has been in force since November 30, 1977, while the one signed with Costa Rica never went into effect because Costa Rica’s Congress refused to ratify it. These agreements seek to close a net around Nicaraguan territory with the ultimate objective of imposing a de facto situation on Nicaragua. Former Colombian President Alfonso López Michelsen expressed his country’s satisfaction with the signing of the treaties and the implicit recognition of Colombia’s expansionist ambitions in the Caribbean when he declared that "we have recovered and delimited a marine surface that is as extensive as the land surface we received on August 7, 1974."

The Honduran-Colombian alliance

As of 1982, the year in which the United Nations passed the Convention on the Law of the Sea, Honduras began drawing up its own maritime expansion strategy. Honduras’ zealous desire to find new territories beyond its own is encapsulated in article 10 of the Honduran Constitution, passed the same year. This desire would lead the country to slowly coincide with one point of Colombia’s modus operandi: that of attempting to impose unilateral borders.

In the Colombia-Honduras case, the idea was to oblige Nicaragua to recognize parallel 15 as the maritime border between Nicaragua and Honduras. According to the official Honduran version, this parallel represents the "traditional line of division" accepted by Nicaragua. In fact, this "traditional line" dates from the early 1980s and was formulated as the result of a maritime expansion policy designed by Honduran territorialists between 1980 and 1982. In the light of this unilateral imposed concept, it was almost inevitable that Colombia and Honduras would join forces to present Nicaragua with a fait accompli. And this, in fact, was the origin of and reason behind the 1986 treaty.

1986: Divvying up Nicaragua’s seas

In a surprise move in August 1986, Colombian President Belisario Betancur and the recently elected President of Honduras, José Azcona, signed the Maritime Delimitation Treaty on San Andrés Island, which divvied up the majority of Nicaragua’s insular, marine and submarine areas, along with areas that could correspond to Jamaica. The arbitrary division of the area was reminiscent of the way the European powers cut up Africa. The treaty contains no written explanation. Negotiated in the strictest secrecy, it is full of latitudes and longitudes, degrees, minutes and seconds. Drawn up on a map, its contents are as follows:
Colombia recognizes the 15th parallel as Honduras’ maritime border with Nicaragua, and recognizes all areas north of this parallel to be Honduran, with the exception of the Serranilla bank, which remains under Colombian jurisdiction.
Honduras recognizes the 82nd meridian as Colombia’s maritime border with Nicaragua and recognizes all territories south of parallel 15 and east of meridian 82 to be Colombian.

The treaty is a mutual recognition of the two signatory countries’ ultimate territorial pretensions, and ignores, or rather tramples over, the rights of third party states, particularly those of Nicaragua. Nicaragua’s insular, marine and submarine areas are reduced to their absolute minimum in this treaty.

The behavior of the signatory countries appeared to be inspired by Teddy Roosevelt’s "I took Panama" turn-of-the-century willfulness. But while the Colombian position came as no great surprise, Honduras’ did, assuming as it did an anti-Nicaraguan position that favored Colombian expansionism.

The United States encouraged the treaty

According to former Honduran Foreign Minister Edgardo Paz Barnica, the negotiation of the Maritime Delimitation Treaty started up in the first months of 1983 at the invitation of the Colombian government, true to its "persistent policy" of expansion in the Caribbean Sea, as Paz Barnica himself put it. The official Honduran communiqué announcing the treaty, however, stated that preliminary conversations dated back to 1975, while other information indicates that the first contacts between the two countries took place as early as 1969-1970.

US hostility to the Sandinista revolution appears to have acted as an incentive to the Honduran and Colombian governments. It encouraged them to throw themselves back into negotiations, convinced that US support would help them impose the fait accompli on Nicaragua, under similar criteria to those already used to ensure the ratification of the 1972 Saccio-Vázquez treaty and the Bárcenas-Esguerra "treaty" and Olaya-Kellog agreement of 1928.

It is worth mentioning some of the arguments that Paz Barnica used to justify the signing of the treaty. According to the former minister, one reason for acting as it did was Honduras’ fear that the "persistent Colombian policy...could have given Colombia the opportunity to conclude other agreements with other Caribbean states with similar pretensions, which could have suffocated our country in this zone, while the further prolongation of the controversy could have weakened and jeopardized our claim to full sovereignty and jurisdiction over the Rosalinda bank."

The blockade of Sandinista Nicaragua

Paz Barnica may have been presenting as though they were his own motives that were in fact inspired by US strategists who were advising the ministry, as perhaps demonstrated in the following statement: "There is something else that could be said in support of signing the Maritime Delimitation Treaty in August of this year, which is important in the current political-strategic situation in the Central America region, and while not concerning legal arguments it does concern the safeguarding of the Honduran state’s political values. We refer to the ideological conflict with Nicaragua, which also has ramifications in the Caribbean island of Cuba and the expansionist action of establishing political systems along the lines of those prevalent in Cuba and Nicaragua, countries that would have to cross the delimitation zones corresponding to Honduras and Colombia for their mutual communication."
Whether due to its own initiative or encouraged by its protectors, Honduras must at least have thought that the United States would bless the sharing of the maritime spoils as Cuba and Nicaragua would then have "to cross the delimitation zones corresponding to Honduras and Colombia." As maritime communications could only be interrupted by a considerable naval force, which both signatory countries lacked, this would have had to be provided by the United States. The idea of a naval blockade of Nicaragua had been put forward in 1981 by US Secretary of State General Alexander Haig, but had come to nothing due to the opposition of CIA director William Casey. Colombian President Turbay Ayala had also defended the idea in March 1982, when he proposed the creation of an "Inter-American naval force to block the transfer of arms from Cuba and Nicaragua to El Salvador." Independent of these plans, the United States began to hold military maneuvers in the Atlantic and Pacific Oceans in July and September 1983, with the ultimate aim of carrying out a naval blockade in Central America.

Debate in Honduras

On July 28, 1986, Nicaragua filed suit against Honduras in the International Court of Justice (Case Concerning Armed Borderline and Trans-borderline Activities) for Honduras’ involvement and complicity in the war of aggression against Nicaragua. It was insinuated that the signing of the Maritime Delimitation Treaty was a reaction to this suit, but while it may have influenced Honduran leaders, facts demonstrate that at most it only accelerated the signing. The secret negotiations between Colombia and Honduras had already been concluded and the treaty drawn up by July 1986.

The Delimitation Treaty caused quite a stir in Honduras, as it recognized Serranilla as Colombian, despite the fact that the key was proclaimed to be Honduran in article 10 of the Honduran Constitution. There were also accusations that the signing of the treaty had been influenced by US policy towards Nicaragua, coinciding as it did with US pressure to establish radar stations in the area, particularly on San Andrés. One Innovation and Unity Party representative claimed that "foreign interests that are not exactly Honduran are behind the signing of the treaty with Colombia," while publicist Paz Aguilar stated that the treaty project "amounts to a diplomatic victory for Colombia [that] affirms its territorial rights in a distant zone [800 km of dry land] over which it can claim no historical rights, just peaceful military occupation." The political and legal debate in Honduras became so widespread and generated such levels of domestic opposition that the treaty was never sent to Congress for ratification.

Honduran fears of a Nicaraguan lawsuit

Nicaragua made strong protests to the Colombian and Honduran governments in September 1986, reiterating the position it had maintained for decades, with particular emphasis on the position made public in February 1980. The Honduran government’s technical advisers were so insecure about the plans for sharing out the territory that the president of the National Section of the Mixed Honduras-El Salvador Limits Commission, Mario Carías, included the following recommendation in an internal document he signed on August 23, 1985: "Another problem that should be foreseen is that Nicaragua has jurisdictional ties to Honduras with respect to the International Court of Justice, so in order to block a Nicaraguan suit, which it could be tempted to instigate above all for political reasons, it would have to be convinced through direct talks of how well-founded the above paragraph is [stating that parallel 15 was the indisputable border between the two countries], or, alternatively, the terms of the Honduran clause of submission to the jurisdiction of the International Court of Justice would have to be urgently changed."
Basic common sense must have told the Hondurans that trying to convince Nicaragua was absurd, so they opted for the second recommendation, and the Honduran clause was in fact quickly changed. On June 6, 1986, the Honduran government told the Court that it was modifying the declaration by which it would accept the obligatory jurisdiction of the international tribunal.

The new declaration excluded controversies over "territorial questions concerning the sovereignty of islands, banks and keys, interior waters, gulfs and the territorial sea, its statute and its limits" from the Court’s jurisdiction. The declaration also excluded "all rights of sovereignty or jurisdiction over the adjacent zone, the exclusive economic zone and the continental shelf, its statutes and its limits," as well as everything referring to air space. But the reasons behind the modification of the declaration were not exclusively territorial. They were also designed to block a Nicaraguan suit against Honduran involvement in the war of aggression against Nicaragua.

The changes made to Honduras’ declaration before the Court were not enough to save the Honduran government from an eventual suit. In 1950, Honduras had unreservedly ratified the American Peaceful Solutions Treaty, known as the Bogota Pact. According to article 31 of that pact, all signatory states recognized, in relation to the other signatory states and for the duration of the treaty, the obligatory, ipso facto and unconditional jurisdiction of the International Court of Justice. In an attempt to change this, the Honduran government sent a note to the Organization of American States informing it "of the modifications made to the acceptance of the International Court of Justice’s jurisdiction, in view of the fact that the terms of the said modificatory declaration are equally applicable to article 31 of the American Peaceful Solutions Treaty."
This attempt to free itself from the Court’s jurisdiction was unsuccessful, however. Honduras wanted to ensure that its exceptions held against the suit presented by Nicaragua in 1986, but the Court ruled on December 20, 1988, that it was competent to hear that suit based on article 31 of the Bogota pact.

Post-1990 normalization?

The Sandinista electoral defeat in February 1990 marked the end of an era. The new Nicaraguan government initiated a policy of normalization with its neighbors, and Honduras sent a mission to Nicaragua asking it to withdraw the suit filed with the International Court of Justice in 1986. One might have expected the Chamorro government to make withdrawal of the suit conditional on Honduras rejecting the treaty it had signed with Colombia, but this was not the case. The issue was dealt with in such a clumsy way that Nicaragua was happy to accept verbal promises.
The result was all too predictable. While Nicaragua canceled its case against Honduras, thus freeing it from certain conviction for its responsibilities during the war of aggression, Honduras failed to honor any of its promises in return. On the contrary, once rid of the lawsuit, it was soon linking up again with Colombia. In June 1993, Honduran President Rafael Leonardo Callejas visited San Andrés Island, thus triggering a diplomatic incident with Nicaragua’s government, which sent a mild protest note.

Central American integration in crisis

The Central American integration process that started back up in the 1990s did not succeed in changing regional parameters. In 1995, the Central American countries signed the Democratic Security Framework Treaty, an extensive and detailed agreement that included the territorial issue among many other topics. Through the agreement, the Central American countries pledged to resolve territorial controversies within the regional ambit and to safeguard Central American territory regardless of which one of them ended up with territorial sovereignty. Prior to this, the Central American Integration System had been created in 1991 and the statute for the reconstituted Central American Court of Justice approved in December 1992. The Court started up in February 1994, covering only El Salvador, Honduras and Nicaragua, as Guatemala and Costa Rica have refused to ratify the agreements. At least in terms of international instruments, the area’s countries showed themselves decidedly committed to regional integration.

Nonetheless, at a time when relations between the Nicaraguan and Honduran governments were excellent, Honduras’ unexpected ratifying of the 1986 treaty with Colombia at the end of last year threw the regional process into crisis, not the least because for some reason Honduras could not explain the motives that led it to so hurriedly ratify a treaty that had been shelved in the Foreign Ministry for 13 years. The motives behind the signing are all the more puzzling if one recalls the general rejection of the treaty in that country in 1986. The Honduran Constitution has not been modified, meaning that the reasons the treaty was not ratified then are still valid. Nor did Nicaragua trigger any urgency by Honduras and Columbia to ratify the treaty, for example by signing any agreements with third countries that might have threatened Honduran interests.

Nicaragua’s reaction

Nicaragua responded strongly and indignantly. On the one hand, it initiated legal proceedings with the International Court of Justice on December 8, requesting that the tribunal delimit Nicaraguan and Honduran marine spaces. On the other, it opened a case with the Central American Court for violation of the Democratic Security Treaty. A further two measures completed its response: the imposition of a special "sovereignty tax" of 35% on products of Honduran and Colombian origin, and expulsion of the Honduran fishing fleet from Nicaraguan waters.

Honduras resented the measures and in an attempt to deflect the blows proceeded to build closer relations with Colombia. As a result, the two countries signed a preferential exportations agreement and Honduras received permission to fish in Colombian waters, which are in effect Nicaraguan waters under Colombian occupation. Nonetheless, geographical reality nullifies the viability of both measures. Colombia is too far away to make Honduras’ weak exports profitable there, while the Honduran fleet is almost totally made up of coastal fishing boats that cannot venture so far out into "Colombian" waters. It is clear that Colombia’s offers are essentially political, and of no practical value in either commercial or fishing terms.

Tension in the court and on the borders

At the beginning of December, the Central American Court of Justice ordered Honduras to suspend the process of ratifying the treaty with Colombia. The Honduran government ignored the order, thus placing it in contempt of the Central American Court. This behavior was contradictory to say the least as Honduras had in turn presented a case against Nicaragua for having decreed the "sovereignty tax." The Central American Court accepted Honduras’ petition for a precautionary suspension of the 35% tax, and ordered Nicaragua to comply. The situation was quite unusual: both parties were both plaintiff and defendant.

Honduras’s attitude was blatantly self-serving, demanding that Nicaragua respect the court order while at the same time announcing its decision not to respect the same court’s order to suspend its treaty with Colombia. On January 18, the court officially declared that Honduras had failed to honor the precautionary measure of suspending ratification of the treaty with Colombia. The situation has left the regional court with a serious dilemma. If it ignores Honduras’ contempt of court, its legal authority will be undermined, yet if it ends up only demanding that Nicaragua comply with its orders, it will be guilty of unequal treatment to the detriment of a party that has been the victim of an action that damages its rights and violates regional agreements on integration.

There was also tension on the land border between the two countries. Honduras ordered the mobilization of its troops and declared a military alert and Nicaragua responded with similar measures. The risk of armed clashes moved the Organization of American States to meet in urgent session in Washington, where it named US diplomat Luigi Einaudi as its special delegate to mediate between the two countries and facilitate the normalization of the political and military situation.

Tri-party meetings were held in Miami at the end of December and in Washington in mid-January in an attempt to defuse the crisis. Though they achieved few concrete results, the meetings did help defuse the main points of tension. The proposal for demilitarizing the 30,000 km² maritime zone under dispute was fleshed out at a February meeting in El Salvador. As this is the area of greatest risk, it makes sense in the interests of peace to keep it free of any armed presence until the International Court issues its verdict in The Hague.

While the situation has now settled down, there is no guarantee that new flashpoints of tension will not emerge. On the positive side, both Nicaragua and Honduras have rejected the possibility of an armed conflict. The two poorest states in the continent can ill afford to commit such an error, which would be suicidal for their economies and populations and would effectively bury the idea of Central American integration.

The Gordian knot

Overnight Honduras created a crisis that could result in the liquidation of the regional integration process. The Honduran government appears to have forgotten one elementary fact: Nicaragua and Honduras have been, are and will continue to be neighbors that share a land border of nearly 700 kilometers and have a complicated situation that is still pending a solution in the Gulf of Fonseca, where Nicaragua holds the most important key. No matter how many treaties Honduras signs with Colombia sharing out what does not belong to it, Colombia will always be far away and Nicaragua right next door. Simple geographic, political, economic and historical logic all indicate that the Honduras should seek agreement and understanding with Nicaragua, not with a far-off South American country.

Central American integration should be established on the basis of solidarity and mutual support, particularly in the face of third party pretensions that are damaging to any of the former United Provinces of Central America. Without such principles, the foundation of integration will be fundamentally flawed. It is now up to Honduras to untie this Gordian knot of its own creation, bearing in mind that slashes of the sword have no place in this conflict.

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