Frontiers – Law, Theory and Cases 3031136063, 9783031136061

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Dimitri Endrizzi · Jairo Becerra · Eduardo Andrés Perafán Del Campo · Jaime Cubides Cárdenas · Laura Cecilia Gamarra-Amaya   Editors

Frontiers – Law, Theory and Cases

Frontiers – Law, Theory and Cases

Dimitri Endrizzi 2022 Jairo Becerra 2022 Eduardo Andrés Perafán Del Campo 2022 Jaime Cubides Cárdenas 2022 Laura Cecilia Gamarra-Amaya Editors

Frontiers – Law, Theory and Cases

Editors Dimitri Endrizzi Faculty of Law Universidad Católica de Colombia Bogotá, Colombia

Jairo Becerra Faculty of Law Universidad Católica de Colombia Bogotá, Colombia

Eduardo Andrés Perafán Del Campo Faculty of Law Universidad Católica de Colombia Bogotá, Colombia

Jaime Cubides Cárdenas Faculty of Law Universidad Católica de Colombia Bogotá, Colombia

Laura Cecilia Gamarra-Amaya Faculty of Law Universidad Católica de Colombia Bogotá, Colombia

ISBN 978-3-031-13606-1 ISBN 978-3-031-13607-8 https://doi.org/10.1007/978-3-031-13607-8

(eBook)

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Dedication To our dear friend Dimitri. Your wisdom and kindness will always be missed.

Contents

As an Introduction: The Term ‘Frontier’ and Kindred Concepts . . . . . . Dimitri Endrizzi Part I

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Theory, Law & Cases

The Emergence of Frontier as a Concept: Classical Theoretical Approaches and Territorial Differences . . . . . . . . . . . . . . . . . . . . . . . . . Rodolfo Cano Blandón Maritime Territorialization and Governance: Geopolitical and Legal Issues Concerning Delimitation of Extended Continental Shelves in the Caribbean Sea and the Arctic Ocean . . . . . . . . . . . . . . . . Ekaterina Antsygina and Bernardo Pérez-Salazar

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Borders in Airspace and Outer Space . . . . . . . . . . . . . . . . . . . . . . . . . . . Jairo Becerra, Paula Pérez, and Laura Duarte

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Cyberspace: A New Frontier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Eduardo Andrés Perafán Del Campo, Sebastián Polo Alvis, Marco Emilio Sánchez Acevedo, and Alejandro León Quiroga

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International Watercourses: Between the Division and the Border Unit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Dayana Becerra Part II

Cases, Theory & Law

Borders, Migration and Human Rights: Case of the United States and Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Enrique Uribe Arzate and Flor María Ávila Hernández Schengen Area: Reflections on the European Border Crisis . . . . . . . . . . 177 Gloria Nancy Zambrano Ramón vii

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Contents

Colombian-Venezuelan Land Border Relationship: Human Rights Vulnerability and Geopolitical Context . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Flor María Ávila Hernández, Jaime Cubides Cárdenas, Fernanda Navas-Camargo, and Paula Andrea Barreto Cifuentes The Injury of Sovereignty in Ecuador in the Management of the Debt Crisis: The Role of IMF . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 Dimitri Endrizzi As a Conclusion: The New Relevance of the Old Frontier . . . . . . . . . . . 247 Dimitri Endrizzi

Editors and Contributors

About the Editors Dimitri Endrizzi Ph.D. in Political Studies from Universidad Externado de Colombia. Sociologist from Università degli Studi di Trento, Italy. Professor Endrizzi has been a researcher on migration issues at the History Museum in Trento, Italy, and a professor of Research Methodology at Universidad Externado de Colombia, Bogotá, and a teacher in the Faculty of Law of Universidad Católica de Colombia as well as a researcher of the group Phronesis at the Faculty of Law of Universidad Católica de Colombia. Jairo Becerra Ph.D. in Law and Political Science from the University of Barcelona. Specialized in Political Science from the University of Barcelona. Director of the Socio-legal Research Center CISJUC - Universidad Católica de Colombia. Lawyer, Consultant, researcher, and professor of Public Policies and Law in Information and Communication Technologies, International Law, and Aeronautical and Space Law. Member of the International Institute of Space Law—IISL. Email: [email protected] Eduardo Andrés Perafán Del Campo Ph.D. (c) in Social Sciences—Dynamics and Changes in Space and Society of Globalization from the University of Granada, Spain. Master in Political and International Studies and a Political Scientist at Universidad del Rosario, Colombia. Academic editor of the scientific journal Novum Jus. University professor and researcher of the research group in Public Law and ICT of the Law School of the Universidad Católica de Colombia. Analyst and consultant in public and international affairs. Email: [email protected]. co Jaime Cubides Cárdenas Lawyer and specialist in Public Law at Universidad Autónoma de Colombia, specialist and a Master’s degree in Teaching and Research with an emphasis on the legal sciences of Universidad Sergio Arboleda and holds a ix

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Master’s degree in Law from the same university. Ph.D. student in Law at the Universidad Católica de Colombia. Researcher, Associate teacher, and leader of the Research Group Person, Institutions and Demands for Justice of Universidad Católica de Colombia. Email: [email protected]. Laura Cecilia Gamarra-Amaya Attorney. LL.M in International Legal Studies from Georgetown University Law Center in Washington, D.C. Admitted to the New York Bar. Extensive litigation experience in the field of insurance defense in New York City. Professor of Public and Private International Law at Universidad Católica de Colombia and an Executive Editor of Novum Jus Law Journal. Regional Organizer of the Latin American Round of the Manfred Lachs Space Law Moot Court. Email: [email protected]

List of Contributors Ekaterina Antsygina Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia Enrique Uribe Arzate Universidad Nacional Autónoma de México, Mexico City, Mexico Flor María Ávila Hernández Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia Paula Andrea Barreto Cifuentes Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia Dayana Becerra Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia Jairo Becerra Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia Rodolfo Cano Blandón Universidad Externado de Colombia, Bogotá, Colombia Jaime Cubides Cárdenas Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia Laura Duarte Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia Dimitri Endrizzi Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia Alejandro León Quiroga Universidad del Rosario, Bogotá, Colombia Fernanda Navas-Camargo Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia

Editors and Contributors

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Eduardo Andrés Perafán Del Campo Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia Paula Pérez Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia Bernardo Pérez-Salazar Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia Sebastián Polo Alvis Universidad del Rosario, Bogotá, Colombia Gloria Nancy Zambrano Ramón Universitat de Barcelona, Barcelona, Spain Marco Emilio Sánchez Acevedo Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia

List of Abbreviations

ACHR ACS BIZ CAIC CARICOM CAU CEDEGE CLCS COPUOS Court IHR CSIRT EASO EES EEZ EU FARC FRONTEX GDP GO IBWC ICAO ICHR ICJ ICT ICWC IGF ILC IMF IMO ISHR ISIS

American Convention of Human Rights Association of Caribbean States Border Integration Zones Commission for the Integral Audit of Public Credit Caribbean Community Council of the Central Asian Economic Union Committee of Development of the Guayas Rives Commission on the Limits of the Continental Shelf Committee on the Peaceful Use of Outer Space Inter-American Court of Human Rights Computer Security Incident Response Team European Asylum Support Office Entry/Exit System Exclusive Economic Zones European Union Revolutionary Armed Forces of Colombia European Border and Coast Guard Agency Gross Domestic Product Geostationary Orbit International Boundary and Water Commission International Civil Aviation Organization Inter-American Commission of Human Rights International Court of Justice Information and Communication Technology Interstate Commission for Water Coordination of Central Asia Internet Governance Forum International Law Commission International Monetary Fund International Maritime Organization Inter-American System of Human Rights Islamic State of Iraq and Syria xiii

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ITLOS ITU IWC IWRM LME MAC NATO NBI NEP NIEO NILE-COM NILE-TAC NSR NWP NYC OAS OECD OECS OHCHR OMVS RTP SIRENE SIS SOGED SOGEM TFEU U.S UKIP UN UNCLOS UNECE UNESCO UNFCCC UNHCR UN-WATER VIS WCIT WFD WGIG WHO WSIS

List of Abbreviations

International Tribunal for the Law of the Sea International Telecommunication Union International Watercourses Integrated Water Resources Management Large Marine Ecosystem Multinational Andean Companies North Atlantic Treaty Organization Nile Basin Initiative North-East Passage New International Economic Order Council of Ministers of the Nile Nile Technical Advisory Committee North Sea Route Northwest Passage New York Convention Organization of American States Organization for Economic Cooperation and Development Organization of Eastern Caribbean States Committee on Economic, Social, and Cultural Rights Organization for the Exploitation of the Senegal River Registered Travellers Program Supplementary Information Request at the National Entries Schengen Information System Diama Dam Management and Operation Agency Manatali Dam Management and Operation Agency Treaty on the Functioning of the European Union United States Independence Party of the United Kingdom United Nations United Nations Convention on the Law of the Sea United Nations Economic Commission for Europe United Nations Educational, Scientific, and Cultural Organization United Nations Framework Convention on Climate Change United Nations Refugee Agency United Nations Water Visa Information System World Congress on Information Technology Water Framework Directive Working Group on Internet Governance World Health Organization World Summit on Information Society

As an Introduction: The Term ‘Frontier’ and Kindred Concepts Dimitri Endrizzi

In 1962, the Canadian sociologist Marshall McLuhan spoke for the first time about the global village. This new expression appeared in perhaps his most famous book: The Gutenberg Galaxy: The Making of Typographic Man (1962). It was taken up by the author in Understanding Media (1964) and used in the title of the book War and Peace in the Global Village (1968). In general terms, McLuhan’s concept of a global village is related to a substantial change generated mainly by the media. Images and sounds could be transmitted from and to any place of the world at any moment. Another topic debated by the author was the growing importance that these media products were playing in the daily lives of the inhabitants of our planet. The consequence was a change in our perception of the distances that divide us from other realities. Technology played an important role. The global village concept is drawn from the idea of a world community that was overcoming the barriers that traditionally have existed. A world community that, in some way, was transforming in a definitive way the frontiers that have divided humanity. More than 50 years have passed since the appearance of the expression global village. The different processes that have characterized the phenomenon of globalization have influenced the shape of frontiers. Many things have happened, from the disappearance of perhaps the most famous frontier, the Iron Curtain, to the current European Union, where the borders among countries have become a distant memory. Humanity’s destiny has been characterized by the rupture of barriers: physical, economic, cultural. Nation-States, the institutions that, more than any other, have

Professor Dimitri passed away during the final editing of this book. This chapter is the result of the research project entitled Human Rights, Interculturalism and Public Ethics developed with the group Phronesis, linked to the Socio-Legal Research Center (CISJUC) at the Faculty of Law of Universidad Católica de Colombia, in Bogotá. D. Endrizzi (*) Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 D. Endrizzi et al. (eds.), Frontiers – Law, Theory and Cases, https://doi.org/10.1007/978-3-031-13607-8_1

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made the biggest mark in recent political history and that have been historically associated with the frontier concept, at least in its political connotation, have lost importance, delegating power, in different degrees and voluntarily, to supranational institutions and, in a way not so voluntary, to actors that have taken prominence in the international scenario, such as corporations, non-government organizations related with civil society, etc. Are we listening to the requiem of frontiers? In more recent times and, perhaps with astonishment, the outlook could be different. And if we consider the current health contingency related to the COVID-19 pandemic, the outlook may be even more different. In 2016, researchers from the University of Quebec, Elizabeth Vallet, Zoe Barry, and Josselyn Guillarmou, published in The Economist a study regarding boundary walls and security fences between countries. The results were surprising. According to the authors, in 1989, perhaps the most emblematic date when we speak of knocked down frontiers, the fall of the Berlin Wall, there were 16 walls or fences in the world there were 16 walls or fences. 27 years later, on the date of publication of the study, the number had increased to 63, finished or in the project phase, involving 67 states. Globalization, considered as the ideal context to the progressive disappearance of the barriers that divided countries, turned out to be a process that has favored the birth of new fears in terms of security. Or, in other words, the unifiers impulses of globalization were not enough to counteract the isolationist drift. It is not important. What is worthwhile to highlight is that currently, a third of the countries in the world present wall or fence that divides them from neighboring countries. The most significant year was 2015, in which more barriers were built than in the previous 27 years combined. Some specific situations are worth highlighting. Regarding the American continent, there are cases of the border between the United States and Mexico and between Mexico and Guatemala. The United States and Mexico share a border of approximately 3.200 km. There is a wall over 1.000 km long between both countries. Donald Trump—the President of the United States of America from January 20, 2017, to January 20, 2021—since the beginning of his Presidential term, it clear that he intended to continue building this controversial wall. Not very different, it is the situation between Mexico and Guatemala. An important part of the almost 900 km of the border, in the vicinity of populated areas, is occupied by a defensive fence, with the intention of decelerating the flow of irregular migrants into the Aztec country.1 In Africa, there are currently 12 barriers between countries. The most emblematic are the electrified fences that divide Botswana from Zimbabwe, officially to stop the migrations of wild animals, and the one that separates Morocco from Western Sahara. It is a sand wall called Berm, the world’s second-longest, surrounded by antipersonnel mines with the purpose of containing the insurgent group Front Polisario, active from 1973 in search of self-determination for Tuareg people.2

1 2

Vallet et al. (2014). Vallet et al. (2014).

As an Introduction: The Term ‘Frontier’ and Kindred Concepts

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Currently, Asia is the continent with the most barriers, 36, 29 of which have been built or planned in recent times, that is, from the year 2000 until the present time. In the Asian continent, there are historical divisions such as those that exist between China and Macao (1860) and between China and Hong Kong (1960). The most polemic is perhaps the wall built between Israel and the West Bank since 2002. It is worthwhile to mention the demilitarized area that nowadays separates North from South Korea, and the two mentioned the walls that separate Pakistan, respectively, from Afghanistan (2.400 km) and India (3.300 km).3 The European situation is no better. The old continent had, at the date of this investigation, 16 barriers, 14 of which didn’t exist before 2013. It is a phenomenon strictly bound to the great flow of refugees and their handling. Significant examples are the chain-link fence (175 km) that runs between Hungary and Serbia and the electrified barrier that divides the Spanish city of overseas Ceuta from the Moroccan territory. How can we forget the Green line, which without the same restrictions as the past, still divides the island of Cyprus? It seems that the utopia of a world without borders remains a utopia. For a long time, we believed that globalization would contribute to subtracting importance from traditional borders, making nation-states obsolete. All the signs pointed in this direction. Globalization was able to bring about the free circulation of goods and capital, and to a lesser extent, the free circulation of people. We don’t know if it is a peculiar juncture without a future or a tendency that will go consolidating in the years. Frontiers have acquired new importance in the collective imagination and in the political calendars. A fact that puts them under the lens of the academic investigators.

1 On the Etymology of the Term ‘Frontier’ To speak nowadays of frontiers means to speak of a multifaceted phenomenon that involves different aspects of different realities: juridical, political, economic, social, etc. This means to consider an empiric concept with all its implications. An empiric concept is an abstract idea that, through a defined process, achieves to be observed in reality. It is composed of three parts: an idea, a term that can express the idea linguistically, an empirical reality that corresponds to the idea.4 The emergence of a specific term responds to the necessity of finding a name for an idea that can be observed in the empiric reality. If we embrace the idea of Giovanni Sartori,5 who tells us on many occasions that in the processes of concepts, the definition is not correct, the use of homonyms (a single term with different meanings) and synonymous (different terms with the same meaning), is then appropriate analysis of

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Vallet et al. (2014). Ogden and Richards (1923), pp. 10–13. 5 Sartori (2011/1970), pp. 29–32. 4

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frontier and of kindred concepts. This is because there exists a varied terminology expressing similar concepts. As we can observe in Table 1, frontier, border, bound, limit, edge, margin, for example, are all terms that express some division among something. And are recurrent terms in the academic literature related to the frontier phenomenon. Sartori6 reminds us that, in the process of concept-definition, it is necessary to consider similar concepts.7 The following is the lexicon created by Gadal and Jeansoulin8: 2022 Border – Etymology: from Old French: bort (ship’s side); Germanic origin – First meaning: an outer edge of something, like a margin, but belongs to this something – Derived words: bordering (to approach) – Concept: to terminate 2022 Bound – – – –

Etymology: from Old French: borne; MedLatin-gaulois origin: bodina First meaning: the external or limiting line of an object Derived words: boundary (something that marks a bound) Concept: to mark

2022 Edge – – – –

Etymology: from Greek: akme (point) First meaning: the cutting side of a blade Derived words: Concept: to collapse at a point (no dimension)

2022 End – – – –

Etymology: from Latin: ante (before); Sanskrit and Hittite origin: hanz (front) First meaning: a part of the territory that marks a termination Derived words: to end Concept: to face (emptiness?), to end

2022 Frontier – – – –

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Etymology: from Latin: frons (forehead) First meaning: a part (of a country. . .) that fronts or faces another (country. . .) Derived words: Concept: to face (relatively to something else)

Ibid. pp. 29–32. It is what the author defines as terminology anchorage. 8 Gadal and Jeansoulin (1998), p. 177. 7

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2022 Limit – – – –

Etymology: from Latin: limes (a way that physically marks) the border) First meaning: boundary Derived words: delimitation Concept: to mark & to split

2022 Margin – – – –

Etymology: from Latin: margo (mark, sign) First meaning: a part (territory. . .) that splits two (bigger) another one Derived words: march (of a kingdom. . .) Concept: a buffer or interval

These terms, each associated with a specific concept, have been used in the literature related to the frontier phenomenon. However, their meaning is not the same, and, consequently, the observable reality through the definition of the terms, which is normally known as an empirical reference, is variable. With the analysis of Fulmer Mood,9 we propose embarking ourselves on an epistemological history of the term frontier. The roots of the world can be found in the Classical Latin frons, frontis, whose meaning corresponds to ‘forehead’. As an extension of its original meaning, the term began to be used to define the front part of something. In Late Latin, the terms fronteria and frontaria appeared with the current meaning. In Old French, the term has been transformed into frontiere, preserving its meaning of frontier or border of a country. From France, the expression gets to England. William Caxton and William Shakespeare used the term with the sense of “a part of a country bordering to another”.10 In the same way, in different meanings, the term has been consolidated in other Romance languages such as Italian, Castilian, Portuguese and Provençal. In the first English-language dictionary, A Table Alphabetical, published in London in 1604 by Robert Cawdry, the term does not appear. We have to wait for 1623, with the publication, also in London, of the English Dictionary: or, An Interpreter of Hard Words, by Henry Cockeram. Frontier appears in its ancient connotation and is defined as “the bound or the limit of a country”.11 In 1721, Nathan Bailey published in London An Universal Etymological English Dictionary. The term is written as of today, frontiers, in the plural, and is defined as “the limits or borders of a Country or Province”.12 The same author published in 1730 the Dictionarium Britannicum: Or, A More Compleat Universal Etymological English Dictionary than Any extant. In this dictionary, the term frontier is defined as: “The border, confer or boundary of a kingdom or province, which the enemies find in the

9

Mood (1949), p. 78–83. Ibid. p. 78. 11 Cockeram (1643). 12 Bailey (1721). 10

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front when they are about to enter the same”.13 With regard to the above mentioned, in the definition of 1730, there appears an element that we could define as relational. It is no longer a definition that includes a single point of view. There appears an eventual external enemy. The term frontier takes on a connotation that nowadays we could define as security. But the important thing to note is that the concept of the frontier has no life of its own, if not in relation to ‘one another. Samuel Johnson, compiler of A Dictionary of English Language, published in London in 1755, defines frontier as: “The marches; the limit; The utmost verge of any territory; The border; Properly that which ends not at sea, but fronts another country”.14 Concerning Johnson’s definition, it is worth highlighting two aspects. The first is that the term is used principally as a synonym of the border. The second is that it presents a specific connotation: the terrestrial one. It is what today we call ‘land border’. A definition with the same meaning is that of John Walker in his A Critical Pronouncing Dictionary and Espositor of the English Language, published in London in 1791: “The marches, the limit, the utmost verge of any territory”.15 In the definition of Walker disappears the exclusively terrestrial connotation and remains the use as synonymous of the term border. To observe a true change of meaning of the term frontier, we must address the reality of the nascent United States of America. As we will see later in the chapter of Rodolfo Cano, Frontier: Classical Conceptual Approaches, the historical events that determined the formation of the new country played a central role in the characterization of the concept. However, on the western side of the Atlantic Ocean, the change of meaning was not immediate. In 1798, Samuel Johnson Jr. published in New Haven the first English-language dictionary of the American continent, A School Dictionary, Being A Compendium of the latest and most improved Dictionaries. The term frontier does not appear. Two years later, in 1800, the same author compiled with John Elliott another dictionary, A selected, Pronouncing and accented Dictionary: Comprising a Selection of the Choicest Word Found in the Best English Authors. The term frontier appears with the meaning of “limits, bounds”.16 Despite this, there were previous reflections worth quoting. The American Revolution, culminating in the Declaration of Independence of 1776, aroused academic interest, so to speak, for everything that could be considered American. The language was not excluded. In 1781, John Witherspoon, then Rector of Princeton University, wrote the following about the term frontier: As you appear to be sensible of the importance of strict attention to grammatical propriety in speaking and writing, I am confident you will have no objections against being informed of any inaccuracies which may have escaped from your own pen: I shall, therefore, take the Liberty of pointing out a few. . . ‘This (Bringing the ‘Indian tribes upon the back

13

Bailey (1730), p. 79. Johnson (1755). 15 Walker (1791). 16 Johnson (1800). 14

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settlements’) I call an act of extreme an unjustifiable barbarity because their manner of making war in well known.’ Is not an improper reason assigned here? It is their manner of making war, and not its being well known, in which the barbarity of bringing them upon the settlements consist. The settlements in America were begun to be made near the ocean and were gradually advanced into the country; for this reason, I would prefer frontier to back settlements: nevertheless, the settlements may be either to one or the other according to circumstances: the following example will explain my meaning. A gentleman in London asked a printseller’s clerk if Mr. Sayer was at home? the clerk replied, ‘Yes, Sir, he is backward’ – ‘backward, Sir, (said the gentleman) which way is that?’ ‘Straight forward, Sir, replied the clerk.’ This was literally true, for Mr. Sayer was then in the back part of the house, towards which the gentleman’s face was turned. In like manner, the settlements may be spoken of as being either back or frontier, according to circumstances; nevertheless, I prefer the latter appellation, in the case before us, for the reason which I have assigned above.17

We must wait until 1806 to find a variation in the meaning of frontier. Noah Webster, in his A Compendious Dictionary of the English Language, a series of writings gathered under this title, includes the term frontier with a new connotation: “A limit, boundary, border on another country, furthest settlements”.18 It is the first reference in a dictionary to the Western dimension of frontier. The historical element influences the meaning of a term. In 1828, Webster published in New York An American Dictionary of the English Language. The connotation of furthest settlements disappeared. That is to say, the direct reference to the frontier that was advancing. The prevalent meaning of frontier is ‘border’. However, a characterization of the concept of a frontier that would enter the common use was made visible: “The marches; the border, confine, or extreme part of a country, bordering on another country; That is, the part furthest advanced, or the part that fronts an enemy, or which an invading enemy meets in the front, or which fronts another country”.19 Webster’s 1828 definition made visible for the first time the multifaceted nature of the frontier concept, showing not only its border nature, something that delimits and divides, but its character of an extreme part of a country. Webster presented a meaning that nowadays we could define as a border strip. Another fundamental moment for the change of meaning of the term frontier was the publication, in 1860, of A Dictionary of English Language, by Joseph E. Worcester. Frontier is defined as: “The boundary of a State, or the territories adjacent to the boundary; confine; border; marches”.20 In the definition of Worcester, appeared for the first time the clear double meaning that still exists today: the traditional one, that indicates a delimitation exclusively, confines, border, marches, and the new one, which implies an extension of the meaning of the concept: the territories adjacent to the boundary. An expression that makes a reference to an area. Giovanni Sartori, in a paper that has become a classic of Political Sciences, Concepts Misformation in Comparative Politics, raises an important concern: the 17

Witherspoon (1781), p. 79. Webster (1806). 19 Webster (1828), p. 80. 20 Worcerter (1860). 18

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empirical reality changes and, with it, we must change the concepts. Otherwise, the theoretical and abstract dimensions would inevitably lose contact with the empirical one. Sartori’s concern arises in the field of social transformation.21 We are in the early 1970s, and politics is becoming increasingly present in all areas of our lives. Sartori defines the phenomenon as an “expansion of politics”.22 Politics gets bigger to use another expression of the same author. The world is politicized like never before. Every day, there are more states, more political participation on the part of citizens, more mobilization, more presence of the state in spheres of life that had never been the subject of intervention. Sartori stresses that this phenomenon changes the horizons, not only geographical, of the comparison. Its study object expands, including realities from all over the world. This implies comparing political systems that present different levels of structuring and consolidation. As the horizons expand, it requires concepts that can ‘read’ the different realities. Returning to our concept, it should be clarified that, at the time in question, the term frontier did not appear in all the English-language dictionaries that were being published. Examples are the works of John Russel Bartlet, Dictionary of Americanism: A Glossary of Words and Phrases Usually Regarded as Peculiar to the United States (New York, 1848); The Glossary of Supposed Americanism by Alfred Langdon Elwyn (Philadelphia, 1859); Americanisms: The English of the New World by Maximilian Schede (New York, 1872); Americanism: Old & New Words, by the British John S. Farmer (London, 1899). In The Century Dictionary, An Encyclopedic Lexicon of English Language, six volumes published in New York between 1889 and 1891, a definition that presents the double connotation of separation and area reappeared: “The part of a country which fronts or faces another country; The confines or extreme part of a country bordering another country; the marches; the border”.23 At the same time, a similar definition is contained in Conquest of England, published by J. R. Green: “The part of a country which forms the border of its settled or inhabited region: as (before the settlement of the Pacific coast), the western frontier of the United States”.24 The literature, too, contributed to defining the use of the term frontier. In the work New Timothy by W. M. Baker, the expression frontier town appeared. Once again, though indirectly, is attributed the meaning of area. In 1890, was published the Webster’s International Dictionary of the English Language, which included the following definition: “The part of a country which fronts or faces another country or an unsettled region; the marches; the border, confine, or extreme part of a country, bordering on another country; the border of the settled or civilized part of a country; as, the frontier of civilization”.25 Two connotations are made visible. The first relates to the concept of the border strip. The 21

Sartori (2011/1970), pp. 29–32. Sartori (2011/1970) p. 29. 23 Mood (1949), p. 80. 24 Green (1884). 25 Webster (1890), p. 81. 22

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second is a peculiarity of the United States and refers to the proximity of supposedly uncivilized territories. The engine of the conquest. We dare to say that is the founding myth of the American country. In 1909, a new version of the dictionary was published in Springfield, Massachusetts, the Webster New International Dictionary of English Language. The definition maintained the meaning present in the previous edition: “1. The part of a country which fronts or faces another country; the marches; the border; (. . .) 2. The border or advance region of settlement and civilization; as, the Alaskan frontier (. . .)”.26 The same definition would be found in the second edition of the dictionary, published in 1934. Funk and Wagnalls Company published in 1893 A Standard Dictionary of the English Language. There was a double definition of frontier. The first: “The part of a nation’s territory that abuts upon another country; the border; confines”.27 The second: “That portion of a country between a civilized and an unsettled region; the confines of civilization”.28 In the same dictionary, terms such as frontierman and frontiersman appeared. A reference to the inhabitants of a specific geographical area near the border. The double connotation of the concept consolidated in the dictionaries published in the following years. In A New English Dictionary on Historical Principles, published in 1897 in Oxford by Sir James A. H. Murray, the term appeared thus defined as: “The part of a country which fronts of faces another country; the marches; the border or extremity conterminous with that of another”29; and as: “That part of a country which forms the border of its settled or inhabited region: as (before the settlements of the Pacific coast), the western frontier of the United States”.30 We can find a clear differentiation between a concept of the American frontier and a British one in The American Language, Supplement I, by H. L. Mencken, published in New York in 1945. Referring to the term frontier, the author stated that, for an Englishman: “A frontier is always a boundary between two countries”.31 In Mencken’s work, explicit references to the process of border expansion appeared as a source of influence in the American language. The idea that the U.S. frontier vicissitudes would influence the sense attributed to the term resides in the work of H. I. Horwill, A Dictionary of Modern American Usage, of 1935. The author spoke about a particular use of the term in the U.S., defining it as: “The limit of settlement within the U.S., as defined by a certain density of population”.32 In 1940, in Chicago, Sir William A. Craigie published the second volume of his Dictionary of American English on Historical Principle. Frontier is defined as: “A region in what is now the United States newly or sparsely settled and 26

Webster (1909). Funk and Wagnalls Company (1893). 28 Ibid. 29 Murray (1897). 30 Ibid. 31 Mencken (1947/1945), p. 82. 32 Horwill (1947/1935). 27

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immediately adjoining the wilderness or unoccupied territory”.33 Craigie referred to the specific use of the term in different authors. Among them, Frederick Jackson Turner, perhaps the main American theorist of the frontier in the late nineteenth and early twentieth century. This author will be analyzed in the next chapter. Today, the meaning normally attributed to the term frontier has not changed. According to the Oxford English Dictionary, there are different connotations of the concept. As a noun, the term frontier is defined as: “A line or border separating two countries; The extreme limit of settled land beyond which lies wilderness, especially in reference to the western US before Pacific settlement”.34 The metaphorical meaning of: “Extreme limit of understanding or achievement in a particular area”35 is also displayed. The definition of the Collins Dictionary is similar: “A border between two countries; When you are talking about the western part of America before the twentieth century, you use frontier to refer to the area beyond the part settled by European; The frontiers of something, especially knowledge, are the limits to which it extends”.36 The Oxford Advanced American Dictionary, a monolingual version dedicated to U.S. English, defines frontier as: “A line that separates two countries, etc.; the land near this line; the edge of the land where people live and have built towns, beyond which the country is wild and unknown, especially in the western US in the 19th century; the limit of something, especially the limit of what is known about a particular subject or activity”.37 Considering dictionaries published in the U.S., the Merriam-Webster, circulating since 1828 and currently the most consulted online, proposes the following definition: A border between two countries (the frontier between Canada and the U.S.); a region that forms the margin of settled or developed territory (were sent on an expedition to explore the western frontier); the farthermost limits of knowledge or achievement in a particular subject (frontiers in immunology); a line of division between different or opposed things (the frontiers separating science and the humanities); a new field for exploitative or developmental activity (. . . the brain lies before us as one of the last scientific frontiers here on earth)”.38

33

Craigie and Hulbert (1940). Allen et al. (1990). 35 Ibid. 36 HarperCollins (2019). 37 Hornby and Crowther (2019). 38 Merriam-Webster (2019). 34

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2 On the Etymology of Related Concepts According to the Online Etymology Dictionary,39 the term border appears for the first time in the heraldry field, in the middle of the fourteenth century, Middle Ages, with the meaning of “broad, colored band surrounding the shield”; from bordure. Its origin is found in Old French bordeure: “Seam, edge of a shield, border”.40 A term which, in turn, derives from Frankish and Germanic bord. Since the end of the fourteenth century, ‘border’ has been used with the meaning of “edge, side, brink, margin”41 and also of “ornamental border along the edge of a dish, garment, etc.”.42 Since the late fourteenth century, the border appeared with the meaning of “boundary of a city or country”43 and, since the XV century, associated with the concept of the region: “District lying along the boundary of a country”,44 replaced in use the previous expression ‘march’. If we refer to the American reality, ‘border’ is understood as “the line between the wild and settled regions of the country”.45 At present, the term border maintains the meanings that emerged in the Middle Ages. The Oxford English Dictionary defines it as: A line is separating two countries, administrative divisions, or other areas; A district near the border between two areas; The edge or boundary of something, or the part near it; A decorative strip around the edge of something; A strip of ground along the edge of a lawn or path for planning flowers or shrubs.46

The Collins Dictionary defines the term border in this way: “The border between two countries or regions is the dividing line between them. Sometimes the border also refers to the land close to this line”.47 The main meaning of the dividing line is maintained. And it is used as a synonym of the border region, indicating in this way more an area than a simple division. Something that does not differ much from the frontier definitions discussed above. In fact, the Collins Dictionary proposes it as a synonym for frontier. However, note that, despite indicating the two terms border and frontier as synonymous, the use of the term border in the sense of area is not so common. To consider border and frontier as synonymous implies a semantic overflow of both terms. This breaks a very simple rule related to the basic rules that are normally respected in the formation of concepts: it is not appropriate to use terms with multiple meanings or different terms that mean the same. That is, the central meaning

39

Harper (2019). Ibid. 41 Ibid. 42 Ibid. 43 Ibid. 44 Ibid. 45 Ibid. 46 Allen et al. (1990). 47 HarperCollins (2019). 40

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of frontier is an area and is also used to define a dividing line, while the central meaning of the border is a dividing line and is also used with the significance of the area. According to the Online Etymology Dictionary,48 the term bound derives from Anglo-Latin bunda, a XIV century expression indicating “boundary marker,”49; and from the Old French bonde, an expression of the XII century which means “limit, boundary, boundary stone”.50 It is a variation of the term bodne, from Medieval Latin bodina, from Gaulish. Since the middle of the XIV century, the expression has been used as: “An external limit, that which limits or circumscribes”51 and, since the end of the same century, as: “Limits of an estate or territory”.52 From the term bound derives boundary, an expression in use since the early seventeenth century, with the meaning that has been maintained until today. The Collins Dictionary tells us that: “The boundary of an area of land is an imaginary line that separates it from other areas”.53 The term, as in the case of the border, is proposed as a synonym for frontier. Another term that has historically been used with the meaning of a dividing line is limit. His general sense referred to territory is from the beginning of the fifteenth century.54 It derives from the Old French limit, which, in turn, derives from the Latin limitem, “a boundary, limit, border, embankment between fields”.55 At present, the Oxford English Dictionary presents two main definitions. The first one: “A point or level beyond which something does not or may not extend or pass”.56 And a second one is directly related to the territory: “The terminal point or boundary of an area or movement”.57 The dictionary specifies that the term is used especially in the plural when it relates to the territory. From what we have outlined, it is perhaps the broader and more general concept. Even though in its Latin origin, the expression referred directly to a territorial boundary, nowadays, its use in this sense is not so common and precise. There are other terms that are part of what we define as the semantic universe of the frontier concept: march, margin, edge, and end. According to the Online Etymology Dictionary,58 a march is a term in use since the beginning of the XIII century with the meaning of “frontier, the boundary of a country; border district”.59 It derives from the Old French marche, used with the same meaning, which in turn

48

Harper (2019). Ibid. 50 Ibid. 51 Ibid. 52 Ibid. 53 HarperCollins (2019). 54 Harper (2019). 55 Ibid. 56 Allen et al. (1990). 57 Ibid. 58 Harper (2019). 59 Ibid. 49

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finds its roots in the Proto-Germanic markō. The Proto-Germanic term evolved and was in use in Frankish, marka, Old Saxon, marka, Old English, mearc, Old High German, Marchon (to mark out, delimit), German, Mark (boundary). It is a term that nowadays is considered obsolete, no longer in use if referred to the territory. In the Anglo-Saxon world, the term was used to define the frontier of England with Wales and, successively, with Scotland. In the English of the XIV century, the verb marchen was in use, with the meaning of “to have a common boundary”,60 an expression that today survives in the dialect. March was the term that, in the ancientGermanic culture, was used with the meaning of border or boundary. However, in its semantic evolution, the term has lost its original meaning to indicate predominantly a border strip from border or boundary to borderland. The term margin presents the same etymological root of march.61 In its original meaning, since the middle of the fourteenth century, it was used with the meaning of “edge of a sea or lake”.62 Only in a second moment, at the end of the XIV century, did the term acquire_ the current and perhaps most common meaning of “space between a block of text and the edge of a leaf or sheet”.63 It derives from the Old French margin, which in turn derives from the Latin marginem (edge, brink, border, margin). The meaning of “bordering space, boundary space, rim or edge”64 is from the late fourteenth century. To finalize this space of etymological exploration of the term that, somehow, enter the semantic field of the concept of frontier, we will consider the terms edge and end. Edge roots in the ancient Greek akme (point), in the Old English ecg (corner, edge, point); in Proto-Germanic agjo (edge); Old Frisian egg (edge); Old Saxon eggia (point, edge). The term presents the same meaning in almost all of the Nordic European languages.65 At present, the Oxford English Dictionary defines the term edge as: “The outside limit of an object, area, or surface”.66 As well as the Merriam-Webster. The Collins as: “. . . The place or line where it stops, or the part of it that is furthest from the middle”.67 The same dictionary presents it as a synonym of border or limit, but not of the frontier. Edge is a very generic term when used with respect to the territory. Something comparable to limit, but much less common. The end is a term derived from the Old English ende (end, conclusion, boundary, district, species, class). Like edge, it is present in different ancient Nordic languages, such as Old Frisian enda, Old Dutch ende, Dutch einde, Old Norse endir, with the meaning of end; in Old High German enti (top, forehead, end). The common root is found in Proto-Germanic andiaz (end, boundary), from root ant (front, forehead). In

60

Ibid. Harper (2019). 62 Ibid. 63 Ibid. 64 Ibid. 65 Harper (2019). 66 Allen et al. (1990). 67 HarperCollins (2019). 61

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Old English, the end was used with the meaning of the outermost part, associated with a sense of destruction and death. Today, this meaning is maintained, for example, in the expression ‘ends of the earth’.68 The current definitions of the main English-language dictionaries, such as the Oxford English Dictionary and the Collins Dictionary, tend to be oriented towards a more generic use of the term, with the meaning of ‘final part of something, in material and abstract terms. As we clearly saw with Ogden and Richards, a term is a kind of label that we use to define a concept that, through its definition, could be observable in the empirical reality and which can be precisely identified through the term. Frontier is a multifaceted concept whose semantic field encompasses changing realities in temporal and geographical terms. We saw how its meaning has evolved in time, also according to the sociocultural context that characterized the society in question. In this sense, the example of the United States of America is enlightening, where the distant settlements of a supposed civilization became the factor that characterizes the frontier. Due to its multifaceted character, the concept of the frontier can be observed from different disciplines: Political science, Sociology, Economics, International Relations, among others. And, principally, Law. Each discipline can observe a specific dimension of the phenomenon that arises in the empirical reality around the materialization of the concept. To speak about frontiers means to contemplate phenomena like sovereignty, economic policy, legal regulation, human rights, among others. This means to contemplate different kinds of divisions that exist between countries, such as maritime, terrestrial, fluvial, or aerial boundaries. It means considering relations between countries and social, economic, political, and legal dynamics. This book contains some of these points of view. Without the ambition to be exhaustive, the book aims to take a tour through the main theories, regulations, and empirical phenomena associated with the concept of frontier, at a time when divisions have retaken strength and centrality.

3 About the Chapters The book is structured in two parts. In the first one, the chapters are characterized by a legal or theoretical approach to the empirical phenomena or objects of study. The empirical dimension is functional to explain the legal or theoretical one. In the second part, the approach will be principally from the empirical dimension to reach a general legal or theoretical reflection. The empirical cases presented, despite not exhausting the universe of the possible cases, were considered as representative of the actual changing reality. The chapter Frontier: Classical Conceptual Approaches, by Rodolfo Cano Blandón, discusses the origin and the historical evolution of the concept of frontier,

68

Harper (2019).

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since the nineteenth century, principally through the theories of three important authors: Friedrich Ratzel, Frederick Jackson Turner, and Michel Foucher. In addition, Cano makes an international comparison about what the frontier has represented for the United States of America, Europe, and South America. All this is for the purpose of demonstrating that the concept is not static but dynamic, showing its different connotations in accordance with the peculiar conditions of the sociohistorical context. The chapter Maritime Territorialization, and Governance: Geopolitical and Legal Issues concerning Delimitation of Sovereign Rights on Extended Continental Shelves in the Caribbean Sea and the Arctic Ocean, by Ekaterina Antsygina and Bernardo Pérez Salazar, approaches the different characteristics of the maritime territorialization and governance, specifically in international law, and its role in promoting the rule of law, particularly with regard to sovereign rights to explore and exploit marine and submarine resources. It focuses on the Caribbean, one of the world’s largest seas, and on the globe’s smallest and shallowest ocean, the Arctic, where the legal disputes over sovereign rights of the extended continental shelf are yet to peak. The chapter Borders in Airspace and Outer Space, by Paula Pérez and Laura Duarte, presents the concepts of airspace and outer space, which are generating a new type of border between countries, as well as the key issues regarding their boundaries, emphasizing the lack of a legal delimitation that allows dividing these two regimes. The authors reflect on the problems that arise from this legal vacuum, like exploration and use of the space, with the vindication of the principle of sovereignty of the states, discussing as a specific case the use of the geostationary orbit. The chapter Cyberspace: A New Frontier, by Eduardo Andrés Perafán Del Campo, Sebastián Polo Alvis y Marco Emilio Sánchez Acevedo, poses a new type of frontier that is not perceptible or tangible, which lies mainly in the cyber space. The importance of this kind of frontier, is currently of great magnitude due to the boom that communications have had through digital media, social networks, different types of information exchange, and new tools of surveillance and how all these kinds of situations have intervened directly in diplomatic relations between States. The chapter shows two principal themes. The first gathers the discussions on the mutation of the exercise of sovereignty by the States in a scenario of constant transformation, cyberspace. The second develops two fundamental elements through which States exercise their sovereignty: cybersecurity and cyberdefense. These two elements will be addressed from the Colombian reality. The chapter International Watercourses: Between the Division and the Border Unit, by Dayana Becerra, establishes a new idea about frontiers: they are not specific and immovable limits. It is important to evidence that borders are not just set through land boundaries but also by watercourses. This takes relevance when rivers run between States without considering the territorial delimitation. The chapter evidence that boundaries between one state and another are not defined only by unmovable territory but also by natural resources that are constantly moving and that states, and society in general, must adapt to this type of frontiers to make adequate regulation

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and international relations with respect to this subject. Here finishes the first part of the book. The chapter Borders, Migration and Human Rights: Case of the United States and Mexico, by Enrique Uribe Arzate and Flor María Ávila Hernández, focuses on the border relationship between Mexico and the United States, specifically in migrant’s human rights situation and how this situation reveals the discrimination that exists in this frontier and generally in the United States. The chapter is theoretically based on the rethinking of the concepts of state, empire, supreme authority, and citizenship, which are linked to the human rights of migrants when influencing the political decisions that they reject migrants. In the chapter Shengen Area: Reflections on the European Border Crisis, by Gloria Nancy Zambrano Ramón, the Schengen Agreement, which abolished internal border controls, is mainly examined for transfer to external border controls with other countries. It is important to note that, thanks to this new border control, there is evidence of a different degree of freedom of movement for citizens, which generates an enormous degree of trust and belief in the state. In addition, the evolution of this agreement is of great importance and a lesson for different States, because initially it was created as an agreement. However, it was evolving in European Union rules and regulations, as well as expanding to other states. In the chapter Land Border Relationship between Colombia and Venezuela: Vulnerability of Human Rights and Geopolitical Context, by Flor María Ávila Hernández, Jaime Cubides Cárdenas, Fernanda Navas, and Paula Andrea Barreto Cifuentes, is presented the case of the Colombian-Venezuelan border, and the humanitarian crisis that people live in that territory. It shows the different characteristics of the border situation, causes, and serious violations of human rights, involving expressions that characterize certain frontier situations. One of these is ‘porous frontier’, evidenced in this chapter as to this bordering territory. In addition, it is important to mention that the study carried out on this frontier is a joint study with theoretical and methodological aspects, provoking an integrated and complete vision of the situation lived in this territory due to the complexity of this. In the final chapter The Injury of Sovereignty in Ecuador in the Management of the Debt Crisis: The Role of the IMF, by Dimitri Endrizzi, the importance of the concept of frontier becomes visible with the exercise of the sovereignty of a State. Specifically, one of the fields in which State sovereignty is most evident is the economic policy of a country. In Ecuador’s case, the multilateral credit agencies began the supposed salvation of the affected countries through a series of measures that made a structural adjustment of economies and a refinancing of existing debts. However, despite having solved some problems, several inconsistencies were found, affecting the economic growth and living conditions of the population. The International Monetary Fund (IMF), in a joint strategy with private banking, has continually interfered with the economic policy of Ecuador, limiting the sovereign of this country. This book represents an interdisciplinary study on contemporary affairs related to different dimensions of the concept of the frontier. It approaches juridical and theoretical issues and empirical cases that show the materialization of the principal

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proprieties of the concept and the dynamics generated. Without the pretense of being exhaustive, mainly because of the breadth of the subject and the almost infinite perspectives from which we can observe the phenomenon, the book is proposed by the authors as an instrument that can provide ideas to academics who want to explore the complex and multifaceted worlds that arise from the interaction within the different frontier aspects and the empiric reality. A reality that, maybe contrary to the trend drawn by the phenomena of globalization, is every day more present in our lives.

References Allen, R.E., H.W. Fowler, and F.G. Fowler. 1990. The concise oxford dictionary of current english. 8th ed. Clarendon Press: Oxford University Press. Craigie, Sir W.A., and J.R. Hulbert. eds. A dictionary of American English on historical principles. Part XVII, School-keeping-snow. Chicago: University of Chicago Press. Gadal, S., and R. Jeansoulin. 1998. Borders, Frontiers, and Limits: Formal Concepts Beyond Words (Conference Paper). Netherland: AGILE Conference. Retrieved from: https://journals. openedition.org/cybergeo/4349. HarperCollins. 2019. Collins English dictionary. 8th ed. Glasgow: HarperCollins. Harper, D. 2019. Etymology of frontier. Online Etymology Dictionary. Retrieved August 30, 2019, from https://www.etymonline.com/word/frontier Hornby, A.S., and J. Crowther. 2019. Oxford advanced learner’s dictionary of current english. 10th ed. Oxford University Press. Horwill, H.W. 1947/1935. A dictionary of modern American usage. Oxford: Clarendon Press. Mencken, H.L. 1. 1947/1945. The American language: an inquiry into the development of English in the United States. 4th ed., corr., enl. and rewritten. New York: Knopf. Merriam-Webster. 2019. In Merriam-Webster.com. Retrieved May 8, 2019, from https://www. merriamwebster.com/dictionary/hacker Mood, F. 1949. Notes on the History of the Word ‘Frontier’. Agricultural History 22 (2): 78–83. Retrieved from: https://www.jstor.org/stable/3739265?read-now¼1&seq¼1#page_scan_tab_ contents. Ogden, C., and I. Richards. 1923. The Meaning of Meaning: A Study of the Influence of Language Upon Thought and of the Science of Symbolism. Magdalene College, University of Cambridge. Sartori, G. 2011/1970. Cómo hacer ciencia política: Lógica, método y lenguaje en las ciencias sociales. Madrid: Taurus. Vallet, Élisabeth, ed. 2014. Borders, Fences and Walls: State of Insecurity? Farnham: Ashgate Publishing.

Dimitri Endrizzi Ph.D. in Political Studies from Universidad Externado de Colombia. Sociologist from Università degli Studi di Trento, Italy. Professor Endrizzi has been a researcher on migration issues at the History Museum in Trento, Italy, and professor of Research Methodology at Universidad Externado de Colombia, in Bogotá, a teacher in the Faculty of Law of Universidad Católica de Colombia as well as a researcher of the group Phronesis at the Faculty of Law of Universidad Católica de Colombia. Email: [email protected].

Part I

Theory, Law & Cases

The Emergence of Frontier as a Concept: Classical Theoretical Approaches and Territorial Differences Rodolfo Cano Blandón

Abstract Through the years, the concept of ‘frontier’ has had a radical evolution, sometimes related to a specific empirical reality. This is crucial in understanding the different cases in the world related to land frontiers. For these reasons, the present chapter is divided into two big thematic axes: At first, the general characterization of the concept ‘frontier’, which includes the principal classical theoretical approaches, and secondly, an international comparison, including The United States, Europe, and Latin America.

1 Introduction The term ‘frontier’ was used to identify the delimitation of territories. According to the historiographical information, the concept arose in the eleventh century and evolved with the birth of the State in Europe in the fifteenth and sixteenth centuries. In the modern age, the concept changed because of geopolitical investigation and has had different meanings: a dividing line, a territorial limit, and, more recently, a zone or region. To analyze the concept of frontier, this chapter will review the contributions of the main scholars who have studied these theories, and synthesize those that have allowed the evolution of the notion until the present. It is important to note that the frontier concept had different origins: in Europe and in the United States of America. While in the Old Continent frontier meant fortifications and clashes between different villagers over territories, in the U.S. it referred to the national construction process, from East to West, with the new settlers were arriving from Europe expanding and extending the territory of the new country. As will be discussed below, the definition of the frontiers was different in the various parts of the world. In the ancient American Spanish colonies, it followed the Result of doctoral research in the Doctorate in Political Studies at Universidad Externado de Colombia, in Bogotá. R. C. Blandón (*) Universidad Externado de Colombia, Bogotá, Colombia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 D. Endrizzi et al. (eds.), Frontiers – Law, Theory and Cases, https://doi.org/10.1007/978-3-031-13607-8_2

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principle of Uti Possidetis Juris (Latin for “as you possess under the law”), except for Brazil, where was applied the principle of Uti Possidetis de Facto, which imply the material possession of the territory. In Africa, the countries gained their independence in the mid-twentieth century, and the demarcation was defined, many times, by Europeans and did not reflect the territorial reality of the continent. Finally, in the Middle East and Asia, the definition process has been the result of regional powers and religious conflicts. Currently, the concept of frontier, or border, has evolved differently around the world, ranging from the integration of continental blocs like in Europe until the hyper-monitored demarcation, as expected in the next few years in the U.S. The chapter is composed of two parts: a theoretical review and an international comparison. To understand the evolution of the concept of frontier, it is to analyze the work developed by three classical authors: Friedrich Ratzel and Frederick Jackson Turner, both from the nineteenth century, and, more recently, Michel Foucher, who are known to conceptualize and provide theoretical elements for the construction of the subject.

2 General Characterization of the Concept In the book Mozarabic Glossary, published in Spain in 1888, Francisco Javier Simonet argues that the concept of frontier came from the Latin origin words frontarius, frontero, fronts and was found in documents of the eleventh, twelfth, and thirteenth centuries. Even though what was implicit in the concept in practical terms had existed since the beginning of humanity, separating the territories of some social groups from others.1 Frontiers are not absolute and did not begin with the birth of the State. Frontiers were conceived from the differentiation between human settlements. From time immemorial, humanity has outlined territory over which it exercises domination. The borders between territories or countries are an instrument of power. Throughout the history of humanity, the territory has represented possession and capital accumulation. Examples of this are Alexander the Great, Julius Caesar, Attila, Christopher Columbus, Hernán Cortés, Napoleon Bonaparte, Adolf Hitler, among others. They were all in the search for imperialism and conquests. They needed to expand their territorial authority and their power; and they did it by invading other territories and kingdoms, conquering, making wars, and, in general, expanding the territorial frontiers. There are many more examples. Today, the best-known border areas in the world show political, economic, social, religious, and environmental problems characterized by poor collaborative work. Some examples may be the borders between the U.S. and Mexico, North and South Korea, Israel with its neighbors (Egypt, Jordan, Syria, Lebanon, and Palestine), India

1

Simonet (1888), p. 232.

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with China, Tibet, and Pakistan, each one with tensions, even nuclear, which deserve more study and analysis, but that illustrates the expansion of power and strength. Other sensitive borders are China with Russia and India with Nepal and Bhutan in Asia. In Latin America, it is appropriate to mention the differences between Bolivia and Chile, the conflict between Peru and Chile in its maritime border, Colombia with Nicaragua in the Caribbean Sea, Colombia with Venezuela due to a maritime border without delimitation in the Caribbean Sea, and the United Kingdom with Argentina over the Falkland Islands. The frontier problems often depend on the border origin. Countries such as India, Pakistan, Iran, Iraq, and Turkey established their borders when they became independent or when their colonizers, England, France, Belgium, among others, granted their independence toward the middle of the twentieth century. The same happened with African borders, which were in most cases outlined by their European colonizers—some of these borders present problems of integration and joint development. However, there are frontiers where collaboration is promoted due to common ties, population, and development possibilities for both sides. For these, among other reasons, the frontiers of the territories are not static, rigid, or irremovable. They are dynamic, have stretched throughout their history, and are like amoebas that change their shape over time.2 As we will see later, a frontier has different territorial configurations. In some cases, it will be analyzed as areas, in others as edges, limits, boundaries, and even walls built to mark the territories. In some cases, a frontier can be defined by natural elements such as rivers, lakes, lagoons, mountains, etc., which will be used to delimit the territories. In other cases, a frontier is a pure political delimitation.

2.1

Classical Theoretical Approaches

Friedrich Ratzel (1844–1904), the German geographer, is considered the father of political and human geography3 and the first known author who investigates and conceptualizes frontiers in modernity. He published a historiographical book entitled Volkerkunde (Knowledge of the people) in 1885 and later, in 1897, a second book entitled Politische Geographie (Political Geography). It was in this second book that the frontier concepts mentioned in his first work were refined. In his first book, Ratzel analyzed migration and displacement of humans, considered them as the axis of the socio-economic development of cultures and social groups, and described the geographic component as key to understanding the development of peoples. In his second book, he propounded that “as the territory of the states becomes greater, is not only the number of square kilometers which grows, but also their collective strength, their wealth, their power, and, finally, their 2 3

This is an idea frequently presented by Friedrich Ratzel throughout his work. López (2011), pp. 157–163.

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duration”.4 According to the author, the occupation of the adjacent territorial spaces is the basis for the progress and dynamism of territories. According to Ratzel,5 the living space (Lebensraum) of a state is the territorial space in competition with the neighbors and has a direct impact on the geopolitical thinking of the territories and on the organization of the State. His theory of vital space was used in Germany by the Third Reich to support its expansionist policy. According to the author, the organizational forms of societies evolve due to emigration and isolation. In the Politische Geographie, three main concepts structure the thought of Friedrich Ratzel about territory: the extension (Raum), the frontiers (Grenzen), and the position (Lage), that define the parameters of what Ratzel calls the political organization of the ground. According to Ratzel,6 states grow like biological organisms, and their existence depends on the occupation of territory by people. Ratzel says that territories could expand, contract, live, give birth, grow and die. In this extension, they can expand their frontiers. This idea is mentioned in Latin America by Sergio Boisier when he speaks of territories as amoebas that stretch or contract. According to Ratzel,7 borders are fundamental to the development of countries. However, in a state with a large area, the central territory tends to be more advantageous than the peripheral. Notwithstanding the foregoing and considering that currently 95% of the world’s products are transported through the sea,8 coastal cities have acquired an economic preponderance when compared to central territories, far from ports and oceans.9 In the field of territorial position, Ratzel distinguished two significates: one broad and one narrow. The first is understood as a “permanent link with the ground”,10 that is, a geographical location in terms of longitude and latitude. In the second sense, the position was understood as a “politic neighborhood”,11 derived from its geographical position and its influence on other territories. To conclude on Ratzel is possible to say the following. Firstly, he was a geographer who had started his academic career in biology and zoology, which influenced his thinking about nature. Secondly, he traveled a lot, which allowed him to observe and analyze the territories and the different policies over them. Finally, although Turner, the author that we will analyze below, is considered by many people the precursor of the concept of frontier, Ratzel was the first who analyzed and incorporated it as part of political geography, highlighting the importance for

4

Lorenzo López Trigal, Op. cit., p. 160. Ibid. 6 Ibid. 7 Ibid., pp. 160–162. 8 World Trade Organization (WTO). 9 At present the concept of geopolitics has given rise to consider oceanopolitics, to refer to the policy of the oceans and seas and their importance in the political life of the countries. 10 López (2011), p. 162. 11 Ibid. 5

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humanity. In summary, the approach of Ratzel contributes not only to the understanding of the political and human geography but to the evolution of the conception of the territory and highlights the importance of the frontiers. His vision had a large reception in the theoretical-conceptual analysis and in later contributions to geopolitics. Frederick Jackson Turner (1861–1932), an American historian, was the first author who investigated the frontier of his country. On 12 July 1883, in Chicago, the Congress of the American Historical Association took place. Turner presented the paper The Significance of the Frontier in American History, where he proposed that the U.S. frontier was extending from the East to the West Coast, expanding the territory of the country through conquering, creating new societies and a new nation. According to Turner, “the North American frontier is clearly different from the European, which is a fortified border line (. . .) the most important aspect of the American frontier is that it is in the nearest margin of land open to the expansion”. In the mentioned paper, Turner presents the biggest difference between the United States and the European frontiers. The North American frontier expanded, extending the agricultural frontier, unlike the European, that had limits in the seas and in territories that were already sufficiently distributed between the kingdoms that dominated them. In 1920, he published the book The Frontier in American History, which collected his initial paper of 1893 and a dozen more about the frontier subject and its implications for U.S. geopolitical life. According to Turner,12 different actors allowed the advance of the U.S. frontier. Due to this, he conceptualized four kinds of frontiers that represent the expansion: the frontier of the trafficker, the frontier of the rancher, the frontier of the miner, and the frontier of the farmer. Each of these actors contributed to his different perspective on the effort to discover and colonize new territories, which in turn would carve the entrepreneurial spirit of the new American citizen. The frontier generated a kind of unique subject that adapted itself to the wild geography of the country, modifying its customs, traditions, ways of thinking, and acting. “On the frontier, breaks the bonds of custom and triumph the debauchery”.13 The conquest of new territories from the East to the West by explorers and settlers was achieved in the beginning due to the wars against the natives who inhabited these lands unexplored by the new civilization. The military played a decisive role in the conquest of new territories. In the words of Turner, the frontier was known as the external face of a new wave that represented the process of Americanization. The frontiers are territories and spaces that, with modernity, became spaces of domination.14

12

Ibid. Ibid. 14 Ibid. 13

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Precisely because of the above, Turner’s thesis was not exempt from criticism15 because it meant the annihilation of the American Indian tribes. In addition to the opening of new paths, that meant environmental devastation and alteration of the territorial ecosystems of the new and dynamic frontier of the time. As we said before, this meant that the process of frontier colonization gave rise also to the expansion of the agricultural frontier, the exploitation of mineral resources (gold), and the colonial expansion toward ‘vacant’ lands, which allowed founding population settlements and discovering new territories, rivers, mountains and oceans in the name of the European kingdoms. In summary, Turner’s thesis can be summarized in the following: – Frontier in the U.S. was a colonizing movement from East to West; – The occupation of the ‘free and wildlands required the work of different actors: ranchers, miners, farmers, traffickers, military, traders, etc.; – The frontier process was supported by the military institutions and by the new civilization; – The frontier was the meeting of the wild world and the colonizers who were conquering new territories; – The frontier created new political, economic, and social institutions; – The spirit of the new American citizen was important for the construction of the United States of America; – The evolution and consolidation of the frontier in the United States was very different to Europe; – The advance of the frontier decreased dependence on the Britannic Empire; – The frontier promoted democracy. – For the U.S., and remotely for the European nations, the frontier meant what the Mediterranean Sea meant for the Greeks. It broke the bonds of custom, offered new experiences, and gave rise to new institutions and activities. Some later researchers, among them Herbert Eugene Bolton (1870–1953), Arthur Scott Aiton (1894–1955), and Walter Prescott Webb (1888–1963) studied and deepened the thesis of Turner and all concluded that the U.S. frontier process could be used to analyze all English, Spanish and Portuguese colonization processes.16 On the other side of Atlantic Ocean, in France, Michel Foucher (1946) studied the frontier phenomena, in Europe and in the world, in its various dimensions: political, economic, social, institutional, among others, and in different stages. Foucher is a geographer who had been diplomat in different parts of the world. His works include L’Invention des frontières (1986), Fronts et frontières. A tour du monde géopolitique

15 According to the analysis of Juan Carlos Arriaga-Rodríguez, Professor of the Department of Political and International Studies of the University of Quintana Roo, Richard White and Patricia Nelson Limerick, were two of the most critical historians of Turner’s theses. Arriaga-Rodríguez (2013), pp. 9–47. 16 Ibid., p. 23.

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(1988), L’Obsession des frontières (2007), L’Europe et l’avenir du monde (2009), La Bataille des cartes (2010) and more recently he published the book Le retour des frontières (2016). In his book L’Invention des frontières, Michel Foucher proposed four objectives: to develop a conceptual framework to explain the frontiers of the world, to elaborate a world history of the way in which the frontiers have been invented, to apply the concepts developed at the frontiers and to analyze the global frontier geopolitically. Summarizing, Foucher affirmed that frontiers are the result of human action and are not an invention of nature: they are manufactured, fictitious, invented, and arbitrary. According to the author, the frontier is the envelope space of the Nation-State17 and is the result of a long and complex history of territorial and social space. Due to the above, the frontier is political. Foucher notes that in South America, frontiers are still under the definition, although the process began in the eighteenth century. It also notes that in Asia, from the Middle East to Indonesia, and in Africa, a high percentage of frontiers are still in dispute. According to the author, there are various kinds of space frontiers: from minimum, such as the one between Macau and China to hermetic, with separator vocation as it was the Berlin Wall, what is being planned between the U. S and Mexico by Trump or the frontier between the two Koreas, up to permeable and imperceptible frontiers that seem to not exist, etc. On the other hand, in his book Fronts et frontières. A tour du monde géopolitique, Foucher makes a statistical analysis. According to the collected data, the following are some of the most important features of the frontiers in the world: of the more than 226,000 km throughout the planet, more than 18,000 km are dividing walls. The borders were established primarily from 1800 onwards and after the end of the Second World War.18 Foucher makes an analytical journey through the frontiers of the world, through the five continents and the seven seas, and makes a historical, political, and geopolitical analysis on the ways in which the frontiers have been identified by humanity throughout history. Since the beginning of humanity, customs, negotiation, war, and nature have defined it. Frontiers are the product of political forces and of history.19 In conclusion, the contribution of Michel Foucher to the analysis of the concept of the frontier is important and novel in the sense that it highlights different determinant elements of frontiers in the world. Among them, historical, political, religious, institutional, and geographical. Currently, Foucher continues to contribute to the analysis of the frontier phenomena in the world, studying political issues in Asia and in the Middle East, ethnic issues in Africa, institutional and military issues in Europe, the unfinished demarcations in Latin America, and, in general, the different categories of analysis, depending on the latitudes that are studying. According to Foucher, there is not just one category that enables us to identify the frontier aspect of a

17

Foucher (1991), pp. 24–37. Ibid. 19 Ibid. 18

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Table 1 Main approaches to the frontier concept Author Friedrich Ratzel

Approach As the territory of states becomes bigger, it is not only the number of square kilometers which grows, but also its collective strength, its wealth, its power, and, finally, its duration.

Frederick Jackson turner

Boundary lines continually move. The frontier is the outer edge of the wave. The distinction between the frontier of the trafficker, of the rancher, of the miner, and of the farmer. Colonial frontier. Frontier is a modern concept that we have to think better, without forgetting that this is not an academic notion but a very ‘practical’ concept, that is to say, political.

Michel Foucher

Analysis The frontier is part of the territory. Increasing territory means expanding the frontier and, with it, the institutional power of the country. The frontier evolves, grows, and expands. It is dynamic. The frontier in the U.S. was different from the frontier in Europe. The U.S. extended from East to West due to the conquering of wild territories and forging new citizens and new institutions. The frontier is a geopolitical concept. There are multiple frontier concepts due to time, place, and history. All frontiers are artificial.

Source: Own elaboration

territory. There are many and varied aspects to consider in the identification and determination of the various kinds of the frontier. Table 1 summarizes the approaches of the mentioned authors:

2.2

Preliminary Conclusions

To conclude this part of the chapter and in accordance with the theoretical and conceptual contribution of the above-mentioned authors, it is important to note that frontier territories change over time. As mentioned, the concept of the frontier as such is known from the eleventh century and later. However, frontiers have existed since time immemorable. The definition of frontiers around the world was a process that gained relevance in different times due to the place where it took place. In Europe, it was important from the eleventh century, while in America, between the eighteenth and twentieth centuries. In Asia and Africa, there were different times. For example, in the African continent, borders were defined mainly between the nineteenth and twentieth centuries. Today, we speak of modern frontiers, global frontiers, territories without frontiers, as at the time of mentioning the European Union. Notwithstanding the above, limits and boundaries continue and will continue to exist because of the different powers of the territories, of governments, of civilization, and, in general, of humanity. Frontiers will continue to exist, such as territories of conflict, such as cultural,

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geographical, political, institutional, humanists, and natural manifestations, among many other things. Finally, it is worth noting the difference between the concepts of frontier depending on the different centers of power. While for the Spanish, the frontier meant a process of conquest of new and unknown territories and its delimitation under the protection of the law, for the Portuguese, it was a de facto process that implied the material possession of the territory, for the North Americans it was a process of conquest from the East to the West coast, and for the European, the frontier meant fortifications, kingdoms, and conquests of new territories occupied by another kingdom.

3 Frontier: An International Comparison The concept of frontier should be universal and unique; however, it is not. The concept varies due to the latitudes and the different times in history. This part of the chapter will analyze the concept in the United States, Europe, and Latin America.

3.1

United States

For the U.S., the frontier was more a process of colonization, expansion of the territory from the East to the West, meaning the conquest of territories once virgin and populated by natives who were giving way to the expansion of civilization of the new settlers. As discussed above, in accordance with the thesis of Turner, the frontier was built between the seventeenth and nineteenth centuries and evolved into the conquest due to the need for new territories for development. The North American frontier had the peculiarity of having started on the East Coast with the arrival of migrants from Europe: English, Scottish, Irish, German, French, Dutch, Spanish, among others, who conquered the territories to the West Coast. This process was not without difficulties. The war with Mexico defined the border in 1848 and the enlargement of the states in the U.S. The process required different actors and military support. However, there were two major events that occurred and allowed the extension of the border in the U.S.: – An emerging definition of what it meant to be an American: More advanced, acted as an explorer, resourceful, and assisted in the establishment of the American nationality and institutions. – This way of expanding the territory meant the near complete extermination of the natives (indigenous groups) who lived previously in the territories.20

20

Ibid., p. 205.

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Europe

In Europe, the frontiers were defined through wars. For more than a thousand years, the European territory was in constant movement. Different people and groups moved between the territories: Gauls, Saxons, Angles, Ostrogoths, Celts, Visigoths, Vandals, Franks, Germans; Romans; Huns, etc., fighting for the dominance of the territory. The European frontier was built over time now established in what we know as the European Union. However, and in the absence of any territory to continue conquering, Europeans moved not only toward the new territories conquered in America but also moved toward the African continent. In America, the Europeans first arrived in what today is the East Coast of the United States and Canada and to an important part of the Caribbean Islands. The frontier in the U.S. wiped out the indigenous tribes. The Europeans did the same, but with small inhabitants of the land, with minority groups and weak peoples that had to give up their territories in favor of the kingdoms ruling in Europe. It has been said that, ultimately, there is not much difference between the U.S. and the European frontiers. However, it is not true. In the first prevailed the conquest of large ‘empty’ lands, which were indigenous territory. The process was fundamental to building the new nation. In Europe, political, economic, and imperialist issues played a decisive role in defining the frontier.21 In the end, the common point is that both frontiers evolved, expanded, and consolidated as a need to express power over the conquered territories. In both cases, the evolution of the frontier concept involved the inclusion of the State, geopolitics, even religion, institutionalism, and nationalism, sometimes rooted with devastating results as in the case of Bonaparte and Hitler. In both cases, the actual frontiers are heavily queried. In the U.S., due to the southern border with Mexico. In Europe, due to the issue of immigrants, especially from Africa and the Middle East.

3.3

Latin America

The process of setting up the frontiers in Latin America tends to be similar, from Mexico to Chile, except for Brazil, where the Portuguese conquerors had a different approach. It is well known the story of Hernán Cortés. Once he reached México, his soldiers wanted to return to Spain. Hernán Cortés ordered to burn the boats. The only destiny was the conquest of the new territory. The Spanish arrived in Central America and, with orders, and royal charters, began to divide the territories that were conquering, setting the boundaries between the new occupants of the territory. The Caribbean Sea was reached by some English, French, and, obviously, Spanish, which appropriated the largest territorial portion. In the south of the continent, the 21

Foucher (1991), p. 25.

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Spanish conquest was the most important, even though Pope Alexander VI, through the Treaty of Tordesillas, had given authority to the Portuguese Empire too to enter the new continent. The frontiers in Latin America were defined almost entirely based on the Uti Possidetis Juris (as you possess under law), except in Brazil, where was applied the principle of Uti Possidetis de Facto, which imply material possession. The first of these concepts, Uti Possidetis Juris, served in the almost complete demarcation of the territories that had belonged to the Spanish Crown, except for some territorial extensions for which there were extensive negotiations that lasted in some cases more than a century to be able to define the final limits of the new, free and sovereign countries—today, differences still prevail between countries on ceded, lost or delivered territories without royal documents which can prove the authenticity of the claims over territory or maritime areas.22 In Latin America, the concept of the frontier was more a synonym of peripheral territories, far from the centers of power and with a small population. It is in these territories, where the problems arose that still affect the region: poverty, inequality, illegal groups, illicit crops, transit of chemical products, etc., problems that have not allowed consolidating a real socio-economic development like in other countries. For Latin America, the concept of the hot frontier has been coined to allude to permeable zones and territories with important problems such as those presented above.

4 Conclusions The concept of frontier has evolved over time. Its intrinsic meaning has remained practically the same from the origins of civilization. However, it is a common opinion that the term was coined in the eleventh century. Throughout the history of humanity, there have been hundreds of theorists who conceptualized the topic. However, this chapter privileged the analysis of three central authors: Friedrich Ratzel, Frederick Jackson Turner, and Michel Foucher. In summary, in 1885, Ratzel introduced the concept of frontier in terms of geopolitical analysis. In 1893, Turner innovated the frontier point of view, particularly for the U.S. France contributes with a profound analysis by Michel Foucher in the late twentieth and early twenty-first century. For these three authors, there is a difference between the concepts of the frontier, border, and boundary. However, the meaning around which turns the different concepts is the territorial boundary between countries. On the other hand, analyzing the concept at different latitudes is possible to evidence some differences between the treatment of frontier concepts in the U.S., Europe, and Latin America. Finally, frontier as a concept has evolved over time: from geographic line to border, to border area or region, which involves not only the political and

22

Ibid., p. 533.

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institutional conception of the territories but that also involves the participation of different actors that are part of the frontier territory. Frontiers are not fixed or static, territories are alive, dynamic, permeable, which require institutional and population involvement to enable them to improve the economic and social conditions of their inhabitants.

References Arriaga-Rodríguez, J. 2013. Tres tesis del concepto frontera en la historiografía. Cuadernos de Trabajo de Posgrado, Historia Moderna y Contemporánea, Instituto Mora, pp 9–47. Foucher, M. 1991. Fronts et frontières, un tour du monde géopolitique. Paris: Ed. Fayard. López, L. 2011. Comentario: “Las leyes del crecimiento espacial de los Estados” en el contexto del determinismo geográfico ratzeliano. Geopolítica(s). Revista de estudios sobre espacio y poder 2 (1): 157–163. Simonet, F. 1888. Glosario de voces ibéricas y latinas usadas entre los mozárabes: Precedido de un estudio desde el dialecto hispano-mozárabe. Madrid: Establecimiento Tipográfico de Fortanet.

Rodolfo Cano Blandón Ph.D. in Political Studies at Universidad Externado de Colombia. Master in Management and Public Policies from Universidad de Chile. Economist from Universidad de Antioquia, Colombia. Professor in Undergraduate and Postgraduate Studies at Universidad Externado de Colombia. Advisor at National Planning Department, Colombia. Email: rodolfo. [email protected]

Maritime Territorialization and Governance: Geopolitical and Legal Issues Concerning Delimitation of Extended Continental Shelves in the Caribbean Sea and the Arctic Ocean Ekaterina Antsygina and Bernardo Pérez-Salazar

Abstract This chapter highlights some challenges concerning the delimitation of continental shelves outside 200 nautical miles (nm). It focuses on the Caribbean, one of the world’s largest seas, and on the globe’s smallest and shallowest ocean, the Arctic, where the legal disputes over sovereign rights of the extended continental shelf are yet to peak.

1 Introduction Technology and geopolitics continuously strain the international law system and its role in the promotion of the rule of law, particularly concerning sovereign rights to explore and exploit marine and submarine resources. Oceans and seas, rich with natural resources, constitute a sphere of particular interest for states. Depletion of the world’s most accessible mineral reserves and rapid technological development presently drive states to assert sovereign rights over as much maritime space as possible. Since the mid-twentieth century, technological breakthroughs allowing the exploitation of seabed resources have boosted the codification of the law of the sea and the creation of dispute resolution mechanisms to regulate the exploration and exploitation of offshore natural resources.

This chapter is the result of the research projects entitled Contemporary Challenges for the Protection of Human Rights in Post-Conflict Scenarios from Interdisciplinary Approaches and Current Transformations of Punitive Power developed with the groups Person, Institutions and Demands for Justice and Criminality and Conflict, linked to the Socio-Legal Research Center (CISJUC) at the Faculty of Law of Universidad Católica de Colombia, in Bogotá. E. Antsygina · B. Pérez-Salazar (*) Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 D. Endrizzi et al. (eds.), Frontiers – Law, Theory and Cases, https://doi.org/10.1007/978-3-031-13607-8_3

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As a major effort in the regulation of maritime spaces, the 1982 United Nations Convention on the Law of the Sea (UNCLOS) represents a milestone in the transformation of international law from a law of coexistence to a law of cooperation. The continental shelf is a major geographic feature that supports the coastal states’ rights to explore and exploit natural resources. Delimitation of extended continental shelves is of interest because states generally lack sufficient experience in this field, and judicial practice is still underdeveloped. As the International Court of Justice (ICJ) noted in the Judgment on Territorial and Maritime Dispute (Nicaragua v. Colombia), “(. . .) the jurisprudence (. . .) for continental shelf delimitation involves no case in which a court or a tribunal was requested to determine the outer limits of a continental shelf beyond 200 nautical miles” and still there was no case that exclusively or primarily concern the delimitation of continental shelves beyond 200 mn.1 In the next decades, this field will develop through the subsequent experiences and practices of international tribunals, arbitrators, and states. Fragmented, crowded, and conflictive, bounded by 34 states or territories with adjacent and opposing coasts within distances that easily allow for overlapping Exclusive Economic Zones (EEZ) and continental shelves, the Caribbean has not been the highly conflict-ridden maritime space that otherwise might be expected in terms disputes on sovereign rights over marine and subsoil resources. However, pending decisions of dispute resolution mechanisms established in UNCLOS concerning the delimitation of extended continental platforms may change this soon. In contrast, the Arctic Ocean is located mostly in the northern Arctic polar region, surrounded by the landmasses of Eurasia, North America, Greenland, and numerous islands. The Arctic Ocean lies at the heart of the Northern Hemisphere, and by 2040, by which time, according to most predictions, it will be almost completely ice-free for the first time in human history.2 Russia, Norway, Denmark/Greenland, Canada, and the United States claim sovereign rights over the continental shelves beyond the 200 nm in the Arctic Ocean, where oil and gas reserves are estimated to be equivalent to those of present-day Saudi Arabia.3 Interests in the extended continental shelves in the Artic emerged a decade ago when the Russian Federation fueled reactions by planting its flag in the Arctic seabed beyond the 200 nm limits of its continental shelf. Observers remain skeptical about the significance of this political instigation and its effect on the willingness of the interested parties to reach a direct agreement on cooperation, and even more so concerning the ability of the UNCLOS´ dispute resolution mechanisms to settle possible conflicts regarding the Arctic resources and its future.4 This discussion of challenges faced by the UNCLOS mechanisms in the process of delimitation of extended continental shelves will rely on the analysis of these two

1

International Court of Justice (2012), p. 668, para. 125. Holland et al. (2006). 3 National Petroleum Council (2015), pp. 11–12. 4 Matz-Lück (2009), pp. 235–255. 2

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cases. It begins with a brief presentation of some conceptual and historical elements underlying the international political and legal framework of the present-day maritime territorialization. Then, the two cases are presented, each with its particular geopolitical context, focusing on the specific legal issues pertaining to the delimitation of disputed extended continental shelves. The shortcomings of the UNCLOS mechanisms in dealing with these situations are also analyzed and discussed. A final section summarizes the findings obtained from the cases studied.

2 A Brief Background: Sovereignty, Borders, and Maritime Territorialization The Westphalian state rests on the principle of sovereignty. Sovereignty grants a governing body the full right and power to establish authority over its territory and population without outside interference. Land borders enclose the limits or jurisdiction controlled by the sovereign governing body, and other sovereign authorities or states generally recognize them as such. In the same period in which Westphalian states were consolidated in the early seventeenth century, Hugo Grotius formulated the doctrine of the freedom of the seas. His book Mare Liberum, published anonymously in 1609 while he was in office as Advocate-Fiscal of the Court of Holland and Zealand, argued that under the principles of natural law, navigation and trade in the open sea were free to all, as was the right to wage war to uphold these rights and liberties. The ensuing doctrine set the legal and moral bases for the privateering that dominated the seas and the forceful colonization of the world by European powers in the following centuries.5 Unsurprisingly, upon its publication, Grotius’ doctrine was not generally accepted. He supported his theory on the argument that the fluid nature of the sea made its occupation or enclosure impossible and that general or promiscuous use by navigation and fishing would never exhaust the sea. Grotius’ English contemporary John Selden opposed this view, asserting the right of appropriation of the sea as a principle and customary fact and arguing that parallels and meridians could serve to establish limits and franchises. However, England ruthlessly persisted in its maritime exclusiveness and dominion policy, demanding foreigners to obtain licenses to fish in its seas. In previous decades Queen Elizabeth I had developed the practical response of invoking ius gentium in support of the predatory voyages of Cavendish and Drake in the West Indies against Spanish complaints. By the nineteenth century, recognition of Grotius’ freedom of the seas doctrine was widespread, complemented with several additional practical principles. Among them, the principle that maritime occupation must be effective to be valid (as in the

This doctrine first took shape in the defense that Grotius upheld concerning the seizure of a Portuguese galleon in the Straits of Malacca in 1604 by the Dutch East India Company. Reppy (1950), pp. 243–285 & Edmond (1995), pp. 179–217.

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case of enclosed seas, straits, and littoral seas). Furthermore, to warrant the flow of commercial traffic, each nation must protect and safeguard those seas nearest to its shores. Moreover, in reconciling the interest of particular states with those of the international community, the proprietor of territorial waters may not lawfully deny innocent passage to foreign ships. The resulting international customary law of the sea condemned the exercise of dominion over the high seas by any nation. It also recognized the rights and liberties of flags of all nations that observe the rules concerning freedom of the sea, including the provision that superior naval power does not grant preeminence of one state over another and that unusual police measures relative to ships are only applicable as agreed by treaties between contracting nations.6

3 International Politics and Legal Framework of the Law of the Sea The origins of modern maritime territorialization of continental shelves, as regulated by the United Nations Convention Law of the Sea (UNCLOS), go back to President Harry S. Truman’s 1945 Proclamations. These unilaterally declared jurisdiction of the United States of America (USA) over the coastal fisheries and natural resources of the subsoil and seabed of the continental shelf contiguous to its coasts. In the unilateral Proclamation 2667, the President announced his country’s rights over the natural resources of the subsoil and seabed of the continental shelf, claiming that the continental shelf is an extension of the landmass, “naturally appurtenant to it,” over which the state exercises inalienable sovereign rights.7 Mexico, Nicaragua, Chile, Cuba, Iran, and Saudi Arabia, among others, almost immediately followed suit and enacted legislation or issued proclamations concerning the continental shelf and their rights as coastal sovereigns therein. In August 1952, Chile, Peru, and Ecuador subscribed to the Santiago Declaration asserting: As a norm of their international maritime policy that they each possess exclusive sovereignty and jurisdiction over the sea along the coasts of their respective countries to a minimum

6

Reppy (1950), p. 274. See United States of America. Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, in Presidential Proclamation 2667 of September 28, 1945. Washington D.C.: 10 Fed. Reg. 12303, 1945. There is less frequent reference to the struggle between the States of California (1947), Louisiana (1950) and Texas (1950), on behalf of the oil industry, and the US Federal Government over the paramount right and power to determine when, how and by what agencies oil and other resources underlying the ocean off the coast were to be exploited. The US Supreme Court finally settled the issue, ruling that such administration would be safer in the hands of the Federal Government. See United States v. California, 332 U.S. 19 (1947); United States v. Louisiana, 340 U.S. 699 (1950); United States v. Texas, 340 U.S. 707 (1950). 7

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distance of 200 nautical miles from these coasts, the exclusive jurisdiction and sovereignty over this maritime zone shall also encompass exclusive sovereignty and jurisdiction over the seabed and the subsoil thereof.

This development, which allowed the three South American countries to cover both their continental shelves and the superjacent water column, was a landmark precedent that influenced the emergence of the exclusive economic zone (EEZ) regime in the subsequent UNCLOS. In the meantime, other states began to assert questions and protests regarding the right to freedom of navigation as well as the limits of territorial waters claimed by coastal states. The issue was soon brought to the United Nations International Law Commission. In 1957 the UN General Assembly convened an international conference to examine the law of the sea, taking account not only of the legal but also of the technical, biological, economic, and political aspects of the problem, and to embody the results in one or more international conventions.8 It also recommended that the conference should study the question of land-locked countries. The United Nations Conference on the Law of the Sea met in Geneva from February 24 to April 27, 1958. Its outcome was the adoption of four separate conventions: the Convention on the Territorial Sea and the Contiguous Zone; the Convention on the High Seas; the Convention on Fishing and Conservation of the Living Resources of the High Seas; and the Convention on the Continental Shelf. The 1958 Convention on the Continental Shelf established norms governing the sovereign rights over the continental shelf. Occupation or express proclamation were not required to establish sovereign rights over the continental shelf, which Article 1 defined as: (. . .) (a) the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 meters, or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.

The Geneva Conventions left open some important issues, such as compulsory dispute resolution, the breadth of territorial sea and limits of the continental shelf, and methods for establishing those limits. In addition, the absence of a single comprehensive treaty allowed states to join only those treaties that provided benefits for them and ignored those that were to their disadvantage. Thus in 1973, the United Nations convened a new conference, recognizing that to be equitable and binding, a law of the sea convention had to be open in its drafting to the participation of the new, decolonized, and independent nations recently admitted to the UN membership.9 The conference coincided with the consolidation of the Group of 77 (G-77) in 1974, which gathered this number of nation-states committed to creating a New

8 9

United Nations General Assembly (1957). Anand (1975), p. 89.

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International Economic Order (NIEO) that would give the world’s poor nations the means to survive and flourish. With its numerical majority in the UN General Assembly, the G-77 expected to be able to influence international economic decisions that would improve its member’s lot in terms of a more equitable share of benefits from the exploitation of their resources by multinational corporations, better terms for international trade and a more balanced distribution of the world’s monetary reserves. The developed states and multinational corporations saw the aims of the G-77 outlined in its call for the NIEO as potentially threatening. The ongoing negotiations of the law of the sea convention offered a vantage point to observe how the resulting tension would play out in the international arena.10 In the deliberations, the G-77 favored the inclusion of the seabed area as a “common heritage of humanity” in the law of the sea convention. Reserved exclusively for peaceful purposes, the Area would not be subject to appropriation by states or persons, natural or juridical, and exploration and exploitation of its resources should be carried out for the benefit of humankind. In the G-77’s view, the “common heritage” principle implied that technologies used to exploit and explore the seabed area were among the benefits to be shared and would thus be principal in the attainment of an NIEO. Developed countries and multinational corporations saw the common heritage principle as a barrier to the exploration and exploitation of the seabed area.11 Eventually, a limited version of the G-77 vision prevailed, and the seabed and ocean floor subsoil beyond the limits of continental shelves and its resources were proclaimed as the common heritage of humanity in Article 136. Additionally, the UNCLOS created an International Seabed Authority charged with funneling and distributing funds earned through exploitation beyond these cutoff points in accordance with a revenue-sharing formula. Another innovation of UNCLOS was the creation of the exclusive economic zone regime. The EEZ is an area beyond and adjacent to the territorial sea, where the coastal state has sovereign rights to explore, exploit, conserve and manage natural resources, whether living or non-living, in the waters superjacent to the seabed and of the seabed and its subsoil, and to carry out other activities such as the production of hydraulic energy, the establishment and use of artificial islands, installations, and other structures, as well as marine scientific research.12 Both the continental shelf and EEZ grant rights over living and non-living resources, but, unlike the continental shelf, the EEZ cannot extend beyond 200 nm. In summary, though the recognition of an extended continental shelf is possible beyond the EEZ, there can be no EEZ in the absence of a continental shelf.13

10

The statement advocating the establishment of the New International Economic Order is contained in the Declaration on the Establishment of a New International Economic Order, G.A. Res. 3201, 29 U.N. GAOR (6th Spec. Sess.), Supp. (No.1), U.N. Doc. A/9555 (1974). 11 International Ocean Symposium (1978) & Hope-Thompson (1980), pp. 46–50. 12 United Nations (1982), art. 55. 13 International Court of Justice (1985), p. 33, para. 34.

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Issues concerning the definition of the extended continental shelf lead positions among G-77 states to drift apart beyond any practicable or reachable compromise. States with a wide continental margin sought to expand exclusive sovereign rights to the complete natural prolongation of their territory. Thus, countries such as Chile, Argentina, Canada, and New Zealand were committed to a 200 nm EEZ, as well as an extended shelf beyond this area.14 In contrast, land-locked countries in Africa or geographically disadvantaged countries with limited coastlines in the Caribbean were in favor of restricted continental shelf since there was no gain for them in an extended continental shelf scenario. In their view, if a state already has 200 miles of the seabed, it does not need to have jurisdiction over a wider seabed area.15 If rights to the continental shelf were subsumed within the 200 nm, there would be a larger share of continental shelves available under the “common heritage” principle. A cut-off point at 200 nm would have the added premium of certainty; all nations would know precisely where national jurisdiction begins and where it ends, and where the Area takes over.16 Unable to marshal a compromise that would feasibly contribute to the establishment of an NIEO, the G-77 slipped into oblivion shortly after closing UNCLOS. Industrialized rich states succeeded in keeping matters of economics and finance out of the UN forum, where they are a minority, and were instead “firmly situated in the organizations where they hold the bulk of power (. . .) such as in the Bretton Woods Institutions under their system of weighted voting”.17

4 The 1982 UNCLOS and the Role of the Commission on the Limits of the Continental Shelf UNCLOS superseded the four Geneva conventions for its parties. Some developed countries abstained from signing UNCLOS in the form open to the signature on December 10, 1982. The strongest objections were centered on the decision-making process of the International Seabed Authority, as well as the mandate to limit seabed production and mandatory technology transfer. Consequently, the UN General Assembly drafted the 1994 Implementation Agreement that brushed aside these substantive elements and became a single binding instrument with the UNCLOS Convention. UNCLOS entered into force on November 16, 1994, upon deposition of the 60th instrument of ratification. Presently, more than 168 parties have ratified the Convention.

14

Hope-Thompson (1980), pp. 55–60. Ibid. 16 Ibid. 17 Salomon (2013), pp. 46–47. 15

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UNCLOS changed the previous definition of the continental shelf, removing the exploitation criterion and adding distance and natural prolongation criteria to establish the outer limit of the continental shelf. In this new definition, the distance criterion applies to situations where the outer edge of the continental margin does not extend beyond 200 nm from the baselines from which the breadth of the territorial sea is measured. The natural prolongation concept is applicable where the margin continues beyond 200 nm. The delineation must follow a complex combination consisting of four rules, two of which are affirmative (formulae) and two are negative (constraints), based on concepts of geodesy, geology, geophysics, and hydrography. According to the first formula, an outer limit of the extended continental shelf can be established from the baselines, by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1% of the shortest distance from such point to the foot of the continental slope (the Irish formula).18 The second formula refers to the fixed points not more than 60 nm from the foot of the continental slope from the baselines (the Hedberg formula). Regardless of the actual extent of the continental margin, the outer line shall not exceed 350 nm constraint from the baselines or shall not exceed 100 nm from the 2500-meter isobaths, which is a line connecting the depth of 2500 m. However, the 350 nm constraint is not applicable in the case of the existence of submarine elevations that are natural components of the continental margin, such as its plateaus, rises, caps, banks, and spurs. Parties to UNCLOS may present data on delineation to the Commission on the Limits of the Continental Shelf (CLCS), which was set up under Annex II to the Convention.19 This procedure was agreed to prevent excessive claims by coastal states. Parties claiming jurisdiction over the continental shelf under the distance criterion, within 200 nm, are not bound to submit any information. Nevertheless, if a state bases its claims on the natural prolongation concept in order to establish a final and binding outer limit of the continental shelf, the state should delineate based on the CLCS recommendations. The role of the CLCS in the delimitation of extended shelves by the international dispute resolution institutions is not yet completely clear. For example, state parties to the UNCLOS dispute resolution procedures involving extended shelves delimitation are required by ICJ to submit data to the CLCS. However, a submission does not automatically constitute sufficient proof of the existence of the outer limit of the continental shelf. Therefore, such a requirement by the ICJ is questionable. The opinion of the CLCS technical experts may be of value for the ICJ judges who are

18

From which the breadth of the territorial sea is measured, by straight lines not exceeding 60 nm in length, connecting fixed points, defined by coordinates of latitude and longitude. 19 The Commission on the Limits of the Continental Shelf is a technical body responsible for evaluation of the information submitted by parties claiming sovereign rights over an extended continental shelf. The CLCS makes non-binding recommendations on the delineation of the outer limit, state can resubmit data if it does not agree with recommendations. The limits of the shelf established by a coastal state based on these recommendations shall be final and binding.

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not specialists in geology and geomorphology, but the CLCS must refrain from considering submissions involving boundary disputes unless it has the consent of all parties involved,20 a condition that is generally difficult to comply.21 Thus, recommendations will not always be available for ICJ rulings. Why does the ICJ require a submission to the CLCS? Presently, the ICJ demands submission to the CLSL as a prerequisite for the delimitation.22 The coastal stateparty to UNCLOS willing to establish the outer limits of its continental shelf has to submit data to the CLCS within 10 years of the entry into force of the UNCLOS for that state.23 The deadline for the first states that joined the UNCLOS was in 2004, but very few countries were able to meet it. On a 2001 meeting, state parties agreed that for those parties for whom the Convention entered into force before 13 May 1999, the ten-year time period would commence on May 13, 1999 (thus moving the deadline to 2009) and that the ability to develop states to meet the deadline would be kept under review.24 Later, when the need for a new deadline became evident, state parties agreed that obligation under Article 4 of Annex II and Article 76 (8) could be satisfied by submitting preliminary information indicative of the outer limits of the continental shelf beyond 200 nm.25 This postponement of the deadline is understandable due to the costs of the research concerning the delineation of the continental shelf. For instance, Denmark expected to spend DKK 350 million (USD 50 million) over 12 years.26 As soon as the process of delineation and delimitation of extended continental shelves begins, and the number of disputes over such delimitation is likely to grow. According to Article 83, delimitation of the continental shelf between States with opposite or adjacent coasts should be effected by means of agreements based on international law. If no agreement is reached, states must resolve disputes by peaceful means in accordance with the Charter of the United Nations. Coastal states

20

Commission on the Limits of the Continental Shelf (2001), para. 5 (a). See, for example, Communication of Colombia dated 5 February 2014: A/68/743 as a reaction to Nicaragua’s submission on the limits of the continental shelf beyond 200 nautical in the southwestern part of the Caribbean Sea. United Nations General Assembly (2014). 22 See, for example, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras). International Court of Justice (2007), p. 659, para. 319. 23 Under the Article 4 of the Annex II to the UNCLOS. 24 Decision regarding the date of commencement of the ten-year period for making submissions to the Commission on the Limits of the Continental Shelf set out in article 4 of Annex II to the United Nations Convention on the Law of the Sea May 29, 2001. SPLOS/72. 25 Decision regarding the workload of the Commission on the Limits of the Continental Shelf and the ability of States, particularly developing States, to fulfill the requirements of article 4 of annex II to the United Nations Convention on the Law of the Sea, as well as the decision contained in SPLOS/72, paragraph (a), June 20, 2008. SPLOS/183. 26 Denmark, Greenland and the Faroe Islands: Kingdom of Denmark Strategy for the Arctic 2011–2020. 21

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are free to choose methods for maritime delimitation, as the law of the sea does not impose any obligatory procedure for this.

5 Territorialization of the Caribbean Sea 5.1

Geopolitical Context in the Caribbean

Second in the area only to the South China Sea (approx. 2,975,700 km2), the Caribbean Sea (approx. 2,515,800 km2), and the Mediterranean Sea (2,511,000 km2) are among the world’s largest seas. Located between latitudes 9–222218 N and longitudes 60–892218 W, the Caribbean Sea is semi-enclosed by nine South and Central American countries and an archipelago of twenty–five island states. Served by numerous passages and straits, the Anegada passage in the intersection of the Greater and Lesser Antilles is presently the main shipping lane in the Caribbean, together with other passages such the Mona, Martinique, Guadaloupe, and Windward passages. The Panama Canal plays a significant role in the maritime traffic intensity in the Caribbean. Its recent expansion has become the main driver in increasing ship size and putting pressure on Caribbean ports to adjust their services to respond to the needs of larger vessels. This results in increased transshipment volumes and vessel share agreements, as well as more complex feeder services to reach smaller ports. With more than 200 ports found within or bordering the Caribbean, inter and intra- regional and international shipping activities in this area explain why its maritime traffic is classified as one of the most intensive in the world.27 Complexity and fragmentation are not bound only to physical and present political geography in the Caribbean Sea. Debates still thrive about the origin of the Caribbean tectonic plate, formed in the Cenozoic era, which has a geological history linked to the interaction of the North American, South American, and Pacific tectonic plates.28 In biophysical terms, the Caribbean is classified as a low productivity marine environment, due to its short supply of nitrogen (N) and phosphorous (P), and to poor mixing of its water-column strata, with the exception of isolated areas of upwelling occurring on the northern coasts of South America. This trait exposes many specialized maritime populations that form the Caribbean Sea’s long, complex and interdependent food chains to over-exploitation. The high degree of connectivity shared by many ecosystems and species classify the Caribbean as a 27

Krista Lucenti (Coord.) Caribbean Regional Action Plan on Freight Logistics, Maritime Transport and Trade Facilitation. (Washington D.C: Inter-American Development Bank, Technical Note No. IDB – TN-712, 2014), 10–14. 28 Formerly, the most popular hypotheses contended that the Caribbean oceanic crust was formed in the Pacific during the Jurassic era (e.g. Pindell and Lorcan 2009). Recent models (Keppie (2013), pp. 9–16.), propose that the bulk of the Caribbean Plate grew in place by capturing microplates from northwest South America and the Gulf of Mexico.

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large marine ecosystem (LME). Coral reefs, seagrass beds, and mangroves forests located on the continental shelves of the mainland and islands are among the Caribbean Sea’s major productive ecosystems and sustain the marine life support system, including its fisheries.29 Since the seventeenth century, the western Caribbean has been a highly contested and fragmented space. Multilateral instruments, including agreements, treaties, conventions, resolutions, guiding principles, and declarations, among others, have set the groundwork for the region’s successive governance systems. Generally, these instruments are sweeping—and therefore open to various interpretations–, superimposed and inadequate. Parties’ disparate commitment in exercising rights and responsibilities creates poor cooperation conditions and ineffective action in managing its resources and life support systems.30 The Caribbean’s persistent military and commercial importance reside in the fact that it enables access to numerous transisthmian routes connecting to the Pacific Ocean. Among the most notorious is the route crossing Honduras from Puerto Cortes on the Caribbean to the Gulf of Fonseca on the Pacific. The San Juan River presently marks the common eastern border between Nicaragua and Costa Rica and is periodically touted as a canal route to the Pacific by way of Lake Nicaragua. Also, the railroad that links Puerto Limón in Costa Rica, on the San Juan river mouth, with San José and Puntarenas on the Pacific. Finally, the Panamá Canal.31 Historically, Spain’s hold in the western Caribbean deteriorated after the fall of Portobello in Panamá in 1739, as British colonial expansion took force. In 1786, Great Britain ceded control of the Coast of Mosquitia32 to Spain as part of the terms agreed upon in the 1783 Peace of Paris and the London Anglo-Spanish Convention. Loyalists resettled from the Coast of Mosquitia to the Bay settlement in British Honduras, present-day Belize, and Britain maintained an unofficial protectorate to guard Miskito interests against Spanish encroachments.33 To improve Spain’s weakened position on the Caribbean flank of the isthmus, in 1802, the Council for Fortifications and Defense of the Indies approved detaching the Coast of Mosquitia and its coastal islands from the Captaincy General of

29

Singh (2008), pp. 6–8. Ibid. 31 Brady (1999), pp. 121–143. 32 The eastern coastline of the Central American isthmus is characteristically a flat plain with swampy humid tropical rainforest extending deep inland. During the second half of the seventeenth century, English privateers made informal alliances with a mixed African – Native American ethnic group, known as the Miskitos, settled along the Caribbean coastal area extending from Cape Camaron, in present day Honduras, to Rio Grande in Nicaragua. In the late 17th and early 18th centuries, Miskito raiders attacked Spanish-held territories and independent indigenous areas as far north as Yucatan, and as far south as Costa Rica. Captives were sold as slaves to English merchants and shipped to work in Jamaican sugar plantations. The area since known as the Coast of Mosquitia, later became a British protectorate. Bridenbaugh and Bridenbaugh (1972), pp. 67–305 & Helms (1983), pp. 179–197. 33 Floyd (1967), pp. 117–135. 30

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Guatemala. The area was annexed to the Viceroyalty of Nueva Granada in the belief that the better-fortified and wealthier Cartagena could improve control of the territory. A royal decree in 1803 formalized the decision, citing poor communications with Guatemala concerning the defense of the area.34 With the withdrawal of the Spanish Empire from most of the Americas at the beginning of the XIX century, the newly independent states sought to avert any terra nullius claims by asserting the uti possidetis principle to establish their borders as they remained in 1810. However, the principle proved to be inadequate to deal with territorial conflicts in Mesoamerica, where overlapping territorial claims due to unsettled colonial borders involved present-day Mexico, Guatemala and Belize; Nicaragua and Honduras; Honduras and El Salvador; Nicaragua and Costa Rica; Nicaragua and Colombia; and Costa Rica and Colombia before the separation of Panama.35 States granting concessions to the private and speculative canal and railroad transisthmian projects exacerbated these conflicts. The Coast of Mosquitia became a main conflict zone as the Netherlands initially, and then Great Britain and the USA bid for control of the Nicaragua route. Gran Colombia, which never had effective control of the area, issued a presidential decree in 1824 declaring illegal all settlements on the Caribbean coastal border located between Cape Gracias a Dios and the mouth of the Chagres River in Panama. In 1839 the government of Nueva Granada, as the successor state was then renamed, protested before the Federal Republic of Central America concerning an agreement that was underway with the Netherlands to open a transisthmian canal using the San Juan River, as it affected Nueva Granada’s rights on the coastal border.36 The massive migratory waves sparked by the California boom in the mid-nineteenth century gave way to new projects and border conflicts. In 1848, the USA ratified the Bidlack – Mallarino Treaty, signed 2 years earlier with the Nueva Granada granting the USA privileges to construct a canal in Panama. Nicaragua, which separated from the Central American union in 1838, found itself caught in a tug of war between Great Britain and the USA to control its transisthmian route during the second half of the nineteenth century. Numerous treaties, involving the three parties, to establish the terms of the annexation of the Coast of Mosquitia protectorate to Nicaragua, as well as the assurance of neutrality for the canal route along the San Juan River and Lake Nicaragua, remained unratified and consequently unobserved for most of this period.37 The long and complicated British withdrawal from the region under pressure from the USA left a lasting strain on the border conflicts in the area and led to the establishment of protectorate-type regimes along the western Caribbean coast. Instability remained rife in the area until the beginning of the twentieth century

34 For a contentious interpretation of this episode Territorial and Maritime Dispute (Nicaragua V. Colombia). Memorial of the Government of Nicaragua, vol. 1, 28 April, 2003, pp. 15–58. 35 Ireland (1971). 36 Londoño-Paredes (2015), p. 8. 37 Gordon, Op. Cit., pp. 320–330.

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when the USA finally set its sight on building the Panama Canal, having established that its construction would cost 25% less than the Nicaragua route and that its maintenance would be 40% cheaper.38 The British finally recognized the end of their protectorate in the Coast of Mosquitia and its integration to Nicaragua in 1905, when the USA began construction of the Panama Canal.39 Canal operations began in 1914, the same year Nicaragua and the USA signed the Chamorro-Bryan treaty by which both parties agreed to build a transisthmian canal along the Nicaragua route and to rent the Corn islands to the USA for 99 years. Colombia protested before Nicaragua, summoning its territorial rights over the Corn Islands as part of the San Andrés archipelago. According to Julio Londoño-Paredes, a renowned Colombian internationalist and ex-minister of foreign affairs, the USA was annoyed by Colombia’s rejection of the Corn Islands rental agreement and consequently encouraged the Nicaraguan government to answer claiming the entire archipelago and declaring to ignore any Colombian sovereign right over its scattered marine features.40 This dispute eventually led to the Esguerra-Barcenas treaty signed in 1928 between Colombia and Nicaragua, by which Colombia recognized Nicaragua’s sovereign rights over the Coast of Mosquitia and the Corn Islands. Nicaragua, in turn, recognized Colombia’s territorial rights over the “islands of San Andrés, Providencia, Santa Catalina and all other islands, islets, and cays belonging to the referred archipelago of San Andrés”.41 The agreement established meridian 822218 W as the territorial limit defining both parties’ sovereign rights over the marine features then known as the San Andres Archipelago. The parties never referred to the meridian as a maritime border. The concept of maritime territorialization beyond a 3 to 12 nm breadth from the mainland coastline only gained traction more than a decade later, with the first continental shelf delimitation in the Paria Gulf in 1942 between Venezuela and Trinidad which was then a British colony.42 Maritime territorialization in the Caribbean properly began after the 1945 Truman Proclamation claiming rights over parts of the continental shelf in the Gulf of Mexico, and particularly in the aftermath of the 1958 Geneva Conventions. During the 1960s and 1970s, most states in the Caribbean Basin incorporated into their national legislations the basic law of the sea definitions for maritime delimitation and engaged in bilateral conversations about maritime borders with the intent to settle

38

Gardner-Munro (1964). Ibid., pp. 160–216. 40 Londoño-Paredes (2015) pp.20–21. 41 Authors’ translation. See Congreso de la República de Colombia. Ley 93 de 1928 que aprueba un tratado sobre cuestiones territoriales entre Colombia y Nicaragua. Bogotá: Diario Oficial No. 20.952 de 23 de noviembre, 1928. 42 Londoño-Paredes (2015), pp. 45–60. 39

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them before the conclusion of the drawn-out conversations in the framework of the UNCLOS III Conference (1973–1982).43 The special case of Jamaica is worth mentioning here. Representing the position of “geographically disadvantaged countries” in the UNCLOS III Conference, Jamaica upheld managing the marine resources in the Caribbean space within a regional framework. It argued against the unilateral “national” annexation process by which the Caribbean Sea was territorialized at the time, and in favor of a regional zone under collective use and management, following the guidelines of the ocean as a “common heritage of mankind” underlying the initiation of the UNCLOS III Conference. Unfortunately, this proposal favorable to an ecosystem managementbased institutional arrangement of the Caribbean marine resources did not garner support among other Caribbean states, and Jamaica finally began enforcing its EEZ rights in the mid-1980s. Towards the end of 1991, Jamaica implemented internal legislation to claim a 200 nm EEZ.44 The resulting national maritime territorialization has not been successful in controlling the progressive degradation of the Caribbean Sea ecosystems. Eutrophication caused by excessive industrial, domestic, and agro-processing effluents as well as sedimentation is negatively affecting water quality. Combined with the impact of solid waste, sewage, agrochemical industrial and heavy metal pollution as well as overexploitation of fishing, this is causing habitat losses, creation of barren areas, loss of keystone species, leading to the depletion of domestic and commercial marine species.45 Apart from UNCLOS, several additional conventions (MARPOL 73/7846 and the Cartagena Convention47) and multilateral agreements have been implemented to 43 Colombia and Venezuela are emblematic in this respect. After failing to agree on their maritime border in the Gulf of Venezuela, from the mid 1970s onward, both countries focused on agreeing bilateral maritime border treaties with their neighbors. According to estimates by Sander and Ratter, by means of these treaties Colombia and Venezuela made use of high sea islands to claim an EEZ area in the Caribbean roughly equivalent to 37% of its marine space, which is bound by 35 states or territories. See Gerhard Sandner y Beate Ratter, “La territorialización del Mar Caribe. Transfondo de intereses y áreas conflictivas en el manejo estatal de la delimitación fronteriza según el derecho el mar” (The territorialization of the Caribbean Sea. Background of conflicting interests and areas in the state management of border delimitation according to the Law of the Sea). Sandner and Ratter (1997). When UNCLOS came into effect in 1994 only two of Colombia’s marine borders remained unsettled: (1) the disagreement with Venezuela, which voted against the adoption of the UNCLOS; and (2) the contentious dispute with Nicaragua, which declared the 1928 Esguerra-Barcenas treaty null and void in 1980. 44 Sandner and Ratter (1997), p. 11. 45 Singh (2008), pp. 9–14. 46 MARPOL 73/78 is the International Convention for the Prevention of Pollution from Ships, 1973 as modified by the Protocol of 1978. (“MARPOL” is short for marine pollution and 73/78 short for the years 1973 and 1978.) MARPOL 73/78 is an important international marine environmental convention. 47 The Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Area (known as the Cartagena Convention) was adopted in Cartagena, Colombia in 1983 and entered into force in 1986. It has been ratified by 20 countries, and its area of application

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target various sectors (including the disconnect between the way the region manages its terrestrial and marine resources). Others have established regional governance structures such as the Caribbean Community,48 the Organization of Eastern Caribbean States,49 and the Association of Caribbean States.50 However, the degradation of the Caribbean Sea continues, and many have pointed the need to promote a paradigm of maritime governance, which can respond more effectively to the issues that threaten to bring a major crisis.51 The present governance framework has not prevented disputes over continental shelf delimitation to reemerge, either. Disputes between Nicaragua and Colombia re-emerged in the 1960s when Colombia protested over oil exploration concessions granted by Nicaragua within the territorial waters belonging to the San Andrés Archipelago. In the early 1980s, shortly after the Somoza regime was ousted and the Sandinista movement came to power, Nicaragua declared the 1928 EsguerraBarcenas treaty null and void, claiming that it was agreed by a subservient government, forcefully imposed by the US intervention in Nicaragua.52 The relations between Colombia and Nicaragua concerning this issue are governed by customary law. The importance of the UNCLOS for non-party states, including Colombia,

comprises the marine environment of the Gulf of Mexico, the Caribbean Sea and the areas of the Atlantic Ocean adjacent thereto, south of 30 north latitude and within 200 nautical miles of the Atlantic coasts of contracting states. As a regional environmental treaty for the Wider Caribbean Region, the Cartagena Convention serves as a vehicle for the implementation of global initiatives and a global legal instrument, such as the Convention on Biological Diversity, MARPOL 73/78, the Basel Convention, the International Coral Reef Initiative, the Global Plan of Action for the Protection of the Marine Environment from Land Based Sources of Pollution, among others; also for regional initiatives such as the Barbados Plan of Action; the Agenda 21. 48 The Caribbean Community (CARICOM) is a grouping of twenty countries, which include fifteen member states and five associate members. CARICOM came into being in 1973 with the signing of the Treaty of Chaguaramas, which was later revised in 2002 to allow for the eventual establishment of a single market and a single economy. CARICOM rests on four main pillars: economic integration; foreign policy coordination; human and social development; and security. 49 The Organization of Eastern Caribbean States (OECS) is a grouping of ten states and associate members in an inter-governmental organization devoted to economic harmonization and integration, protection of human and legal rights, and the encouragement of good governance between countries and dependencies in the Eastern Caribbean. The OECS came into being in 1981 with signing of the Treaty of Basseterre. The 1981 Treaty was replaced in 2010 with a revised version creating an economic union that establishes a single financial and economic space and paving the way for the introduction of legislative competence at the regional level. 50 The Convention that established the Association of Caribbean States (ACS) was signed in 1994 in Cartagena de Indias, Colombia, with the aim of promoting consultation, cooperation and concerted action among all the countries of the Caribbean. Presently it comprises 32 contracting states, countries and territories of the Greater Caribbean. The ACS has five areas of concern, including preservation and conservation of the Caribbean Sea; sustainable tourism; trade and economic external relations; natural disasters; and transport. 51 Singh (2008), pp. 9–14 & United Nations Environmental Programme (2010), pp. 187–226. 52 Junta de Gobierno de Reconstrucción Nacional de Nicaragua (1989), cited in Londoño-Paredes (2015), p. 85.

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cannot be overlooked as some of its norms are binding due to their customary character and hence are applicable to every state.53 The decision not to become a party to UNCLOS did not spare Colombia from dispute resolution in its discord but narrowed applicable law to customary. After decades, Nicaragua finally instituted proceedings against Colombia before the ICJ in 2000 in respect of a dispute consisting of “a group of related legal issues subsisting” between the two States concerning title to territory and maritime delimitation in the western Caribbean. In December 2007, the ICJ issued a ruling on Colombia’s preliminary objections.54 Colombia objected to the jurisdiction of the ICJ on the matter. The court upheld that the 1928 “Treaty concerning Territorial Questions at issues between Colombia and Nicaragua”55 and its 1930 Protocol were valid and had already settled the question of sovereignty over the Islands of San Andrés, Providencia, and Santa Catalina. However, the ICJ held that questions concerning the scope and composition of the rest of the San Andrés Archipelago and the question of maritime boundary were not settled by the 1928 treaty.56 In 2012, the Court confirmed the dominion of Colombia over San Andrés Archipelago and awarded Nicaragua control over a large area of the surrounding waters and seabed of the Archipelago.57 Colombia, however, refused to recognize the judgment of the Court and withdrew from the Pact of Bogota.58 Article 101 of the Political Constitution of Colombia prescribes that the borders of Colombia can be modified only by treaties.59 Colombian authorities used this argument to refuse to comply with the 2012 ICJ decision on Nicaragua v. Colombia case. This reasoning is invalid under the well-established principle of international law that a state cannot avoid international obligations by invoking its domestic law.60 In 2013, Nicaragua filed a new claim against Colombia to the ICJ on the delimitation of the outer limit of its extended continental shelf overlapping with the Colombian maritime zone within 200 nm from its coastline. This new

53

Colombia is not a party to the UNCLOS, while Nicaragua is a party since May 3, 2000. As stated by the ICJ, “(. . .) the relevant provisions of UNCLOS concerning the baselines of a coastal State and its entitlement to maritime zones, the definition of the continental shelf and the provisions relating to the delimitation of the exclusive economic zone and the continental shelf reflect customary international law”. 54 International Court of Justice (2007), p. 832. 55 United States of America (1945). 56 International Court of Justice (2007), p. 832, para. 91–97. 57 International Court of Justice, Op Cit., p. 624. 58 Diplomatic Note No GACIJ 79357 from the Minister of Foreign Affairs of Colombia to the Secretary-General of the Organization of American States, 27 Nov. 2012. 59 Authors’ translation of the Colombia’s Constitution 1991. Congreso de la República de Colombia (1991), art. 1. 60 International Court of Justice (1923–1930), pp. 20–21.

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development in Nicaraguan-Colombian relations on maritime delimitation is discussed in the next section.

5.2

Issues Concerning Delimitation of Extended Continental Shelves in the Caribbean

The increasing number of disputes concerning the delimitation of the extended continental shelf is becoming a growing challenge for the international system of dispute resolution. Contentious ICJ case is Nicaragua v. Colombia,61 Somalia v. Kenya being the most recent decision.62 Other cases have been presented before the International Tribunal of the Law of the Sea (ITLOS), including Ghana/Côte d’Ivoire and Bangladesh/Myanmar.63 Arbitration is another dispute resolution method used for continental shelf delimitation, as is the case between Barbados and the Republic of Trinidad and Tobago.64 Apart from the aforementioned questions about the role of the CLCS in maritime delimitation, answers are still pending concerning other issues, such as whether distance prevails over the natural prolongation criterion; or whether geological and geographical features play a role when delimitation concerns entitlement within 200 nm of one party and extended continental shelf of another. In the Caribbean context, the Nicaragua v. Colombia case illustrates the present shortcomings of UNCLOS s to deal with these specific issues. The subject matter of the Nicaragua v. Colombia case concerns the delimitation of the continental shelf within 200 nm from the Colombian coast and the extended continental shelf of Nicaragua. A single maritime boundary between the parties was set up by the ICJ in 2012,65 but at that time, the ICJ was not “in a position to delimit the continental shelf boundary” beyond 200 nm from the Nicaraguan coast due to lack of evidence that Nicaragua’s continental margin extends far enough to overlap with Colombia’s maritime zone,66

61

International Court of Justice (2016). International Court of Justice (2017). 63 International Tribunal for the Law of the Sea (2012), p. 4. 64 Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between them. Decision of 11 April 2006 11 April 2006 VOLUME XXVII pp.147–251. Available at: http://legal.un.org/riaa/cases/vol_ XXVII/147-251.pdf. 65 International Court of Justice, Op. Cit., p. 624. 66 Ibid., pp. 669–670, para. 129–131. 62

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In addition, in 2012, the ICJ established that the submission of Nicaragua’s extended continental shelf data to the CLCS, according to Article 76 of UNCLOS, is a prerequisite for delimitation.67 After submitting the information to the CLCS in 2013, Nicaragua filed a new claim against Colombia on the delimitation of its extended continental shelf overlapping with the Colombian maritime zone within 200 nm. Colombia raised five preliminary objections68 that were rejected by the ICJ. Questions arise about the CLCS’ role in delimitation cases. The requirement of submission is understandable when both parties to the dispute are also parties to UNCLOS, as in the case of Nicaragua and Honduras,69 because treaty law (UNCLOS) is applicable in relations between parties. However, as Colombia is not a party to UNCLOS, customary law governs the dispute. Previously, the parties had agreed that only paragraph 1 of Article 76 holds a customary character. However, the ICJ did not examine the customary character of paragraph 8 of the named article, which prescribes the submission of data on the extended continental shelf to the CLCS. The Court is not an UNCLOS enforcement body, so it is not competent to compel a party to fulfill treaty obligations. Will the submission be considered by the ICJ as evidence of the existence of the natural prolongation? The need for such a submission is not patent, as this information can be provided by other means (geological and geographical surveys). It seems more appropriate for the ICJ to seek recommendations of the CLCS on the data submitted by a coastal State. Nevertheless, in its 2016 decision on preliminary objections, the ICJ stated that “recommendation from the CLCS. . . is not a prerequisite that needs to be satisfied”.70 In any case, the CLCS will refrain from considering submissions involving boundary disputes unless it has

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International Court of Justice, Op. Cit., p.36, para. 105. First: the Court lacks jurisdiction ratione temporis under the Pact of Bogota because the proceedings were instituted by Nicaragua on 16 September 2013, after Colombia’s notice of denunciation of the Pact became effective on 27 November 2012; second: the Court does not possess “continuing jurisdiction” because it fully dealt with Nicaragua’s claims in the Territorial and Maritime Dispute case with regard to the delimitation of the continental shelf between Nicaragua and Colombia in the area beyond 200 nm off the Nicaraguan coast; third: the issues raised in Nicaragua’s Application of 16 September 2013 were “explicitly decided” by the Court in its 2012 Judgment, so the Court therefore lacks jurisdiction because Nicaragua’s claim is barred by the principle of res judicata; fourth: Nicaragua’s Application is an attempt to appeal and revise the Court’s 2012 Judgment, and, as such, the Court has no jurisdiction to entertain the Application; and, fifth: in its Application, Nicaragua’s first and second requests are inadmissible. The first because the Commission on the Limits of the Continental Shelf has not made recommendations to Nicaragua with respect to whether, and if so how far, Nicaragua’s claim to the outer continental shelf extends beyond 200 nm; and the second because, if “the Court decides that it has no jurisdiction over the First Request or that such Request is inadmissible, no delimitation issue will be pending before the Court”. 69 International Court of Justice, Op. Cit., p. 759, para. 659. 70 International Court of Justice, Op. Cit., p. 37, para. 114. 68

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the consent of all parties involved.71 Colombia objected to the submission of Nicaragua, so the CLCS will not be able to deliver the recommendations. So, what is the purpose of establishing a submission as a prerequisite for delimitation? Presumably, the answer will be clarified upon the delivery of the ICJ decision on the merits. Another controversial issue is the rejection of Colombia’s preliminary objection on res judicata. As the delimitation of continental shelves between the parties was previously addressed in the 2012 decision, keeping in mind that decisions of the ICJ are final and binding,72 there should not be new litigation on the same matter. The principle of res judicata requires an identity between the parties (Nicaragua and Colombia), the object (delimitation of Nicaragua’s extended continental shelf overlapping with Colombia’s 200 nm entitlement), and the legal ground (Nicaragua bases its right on customary international law). The Court was divided into two opposing positions: it split in 8 to 8 votes, and the President cast his vote to resolve the stalemate in favor of admissibility of Nicaragua’s claim. Despite the fact that res judicata seems applicable here, the ICJ stated that it is not satisfied by an identity of the mentioned elements, as it must verify that the first claim has already been definitively settled.73 Dissenting judges analyzed the wording of the 2012 decision in the light of similar cases and expressed their disagreement with the Court’s final decision in the following paragraph: However, since Nicaragua, in the present proceedings, has not established that it has a continental margin that extends far enough to overlap with Colombia’s 200-nautical-mile entitlement to the continental shelf, measured from Colombia’s mainland coast, the Court is not in a position to delimit the continental shelf boundary between Nicaragua and Colombia, as requested by Nicaragua, even using the general formulation proposed by it.74

The dissenting judges stated that Nicaragua already presented evidence on the matter in the 2012 case, and the Court considered it as insufficient. In its 2012 decision, the Court did not refer to the absence of submission to the CLCS as the reason for the rejection; instead, the rejection was based on the failure to meet the burden of proof. Yet, in its 2016 decision on preliminary objections, the Court states: It has been found that delimitation of the continental shelf beyond 200 nautical miles from the Nicaraguan coast was conditional on the submission by Nicaragua of information on the limits of its continental shelf beyond 200 nautical miles provided for in paragraph 8 of Article 76 of UNCLOS to the CLCS.75

71 “If an area is not delimited and therefore remains the subject of a dispute, the Commission will not make recommendations about the outer limits (absent the consent of all involved States). And if the outer limits have not been established on the basis of Commission recommendations, the Court’s 2007 statement suggests that it will not proceed with a delimitation”. International Court of Justice, Op. Cit., p. 30, para. 759. 72 United Nations (1945), arts. 59–60. 73 International Court of Justice, Op. Cit., p. 26, para 59. 74 International Court of Justice, Op. Cit., p. 669. 75 Question of Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), (n 29) para 85, at p.32.

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The submission to the CLCS does not automatically constitute sufficient proof that a state has a continental margin extending beyond 200 nm, and, according to the 2012 ruling, the Court needed evidence “that it [Nicaragua] has a continental margin that extends far enough to overlap with Colombia’s 200-nautical-mile entitlement”. As Colombia stated, “having tried and failed to meet its burden of proof in that case, Nicaragua is asking for ‘another chance’ in the present proceedings”.76 Since Nicaragua already had a chance to present evidence on the continental margin extending beyond 200 nm and failed, it is unfair to give it another opportunity.77 Moreover, when the Court considers an option for a party to come back, it expressly provides for that in the judgment.78 The ICJ never mentioned in the 2012 judgment that Nicaragua would be able to return to the Court upon submission to the CLCS. This decision on res judicata opens a door for repeat litigation, where neither respondent nor the Court itself is protected from the instability of ICJ’s decisions79 and their depreciated legal value.80 Thus, in the authors’ opinion, res judicata applies in the case of Nicaragua’s claim, and the Court should have upheld Colombia’s third preliminary objection. Colombia could consider the following arguments in favor of its position in the Question of Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast: 1. States claim their sovereign rights based on two different criteria: (a) natural prolongation: the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin (Nicaragua); and, (b) distance: an expanse of 200 nm from the baselines from which the breadth of the territorial sea is

“The Court did not say that it was unable to delimit the continental shelf boundary because Nicaragua had failed to submit information to the CLCS as required by Article 76 (8) of UNCLOS, nor did it imply this at any point in the previous paragraphs” International Court of Justice, p. 8, para. 26. 76 Ibid., p.27, para. 63. 77 “Nicaragua made full use of the opportunity to prove its claim that its continental shelf entitlement extended far enough to overlap with Colombia’s mainland entitlement. (. . .) This is precisely the sort of situation in which, for reasons of procedural fairness, the doctrine of res judicata applies”. 78 See for example, certain activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, p. 77, para. 229 (5) (b); and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),’ Joint Dissenting Opinion of Vice-President Yusuf, Judges Cançado Trindade, Xue, Gaja, Bhandari, Robinson and Judge Ad Hoc Brower (n 59), para 65, at p. 16. 79 “These purposes — finality of litigation and protection of the respondent from repeat litigation — protect both the operation of the legal system and those within it”. Joint Dissenting Opinion of VicePresident Yusuf, Judges Cançado Trindade, Xue, Gaja, Bhandari, Robinson and Judge Ad Hoc Brower (n 97), para 65, at p. 16. 80 “The decision to allow Nicaragua to attempt a de facto appeal or revision of the Court’s 2012 Judgment, threatens the credibility of the ICJ and hence diminishes the sanctity and respect that its judgments will be afforded in the future”. International Court of Justice (2016), art. 3, para. 11.

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measured where the outer edge of the continental margin does not extend up to that distance (Colombia). So far, there is no jurisprudence giving the distance preference over the natural prolongation in situations of the delimitation of continental shelf within 200 nm with an extended shelf. In the Libyan Arab Jamahiriya/Malta case, the ICJ found that distance from the coast is a relevant element for the delimitation81 and concluded that geological or geophysical factors within 200 nm are not relevant in verifying the legal title of the coastal state.82 Hence, the actual existence of an extended continental margin within 200 nm is not imperative; within that limit, the state has a claim to supreme sovereign rights. There is no equitable basis for Nicaragua’s claim to additional entitlement at the expense of the Colombian 200 nm continental shelf, seeing that the former party already enjoys sovereign rights within its 200 nm. Equity as a legal concept is a direct emanation of the idea of justice. The Court, whose task is by definition to administer justice, is bound to apply this principle. 2. Moreover, the priority of Colombia’s title can be confirmed by the provisions of Article 82 of the UNCLOS, which entails payments or contributions for the exploitation of the non-living resources of the continental shelf beyond 200 nm. Article 82 demonstrates that an entitlement to an extended shelf is weaker in comparison to the entitlement within 200 nm. Colombia, in contrast, exercises sovereign rights over these sectors without charge as they are within 200 nm. 3. It should be noted that the Islands of San Andrés, Providencia, and Santa Catalina, over which Colombia’s sovereignty has been settled, are situated on the same continental margin that constitutes the natural prolongation of the Nicaraguan coast and, thus, is also entitled to the extended shelf in the disputed area. Thus, Colombia can also assert natural prolongation in the area of overlap. In the past, the ICJ (and other dispute-resolution organs) has given attention to the singularity of each case in continental shelves delimitation: “each continental shelf case in dispute should be considered and judged on its own merits, having regard to its peculiar circumstances”.83 The same is expected regarding extended continental shelf entitlements. In the future, the ICJ will probably continue to apply its well-established threestep approach for delimitation.84 First, the Court establishes the outer limits of the extended continental shelf (shelves), and entitlements within 200 nm, if applicable. “After deciding on these facts, the Court measures and determines the coordinates of the area of overlap and then would divide it between the Parties based on the equidistance principle”.85 In a second step, the Court considers any circumstances relevant to the delimitation and application of equitable principles to determine whether a provisional equidistance line may be adjusted by taking into account the 81

International Court of Justice (1985), p. 24, para. 34. Ibid. pp. 25–26. 83 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 18. 84 Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 101, para. 115–116. 85 International Court of Justice. op. cit., art. 753, para. 7. 82

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existence of islands, concavity of the coast, and other features that may influence the delimitation. At this stage, the singularity of the case plays a major role: sometimes islands are given the full effect in delimitation, but not always. As delimitations are politically sensitive issues, multiple factors influence the final decision. In the third step, the Court will conduct a disproportionality test, verifying that the line does not “lead to an inequitable result by reason of any marked disproportion between the ratio of the respective coastal lengths and the ratio between the relevant maritime areas of each State by reference to the delimitation line”.86 Application of other methods for delimitation is possible if there are grounds to believe that application of the three-step approach is impractical and inconvenient, such as in the Nicaragua v. Honduras case.87

6 Territorialization of the Arctic Ocean 6.1

Geopolitical Context in the Arctic

The Arctic Ocean is the smallest and shallowest of the world’s five major oceans: it covers an area of about 14 million km2 (almost six times the area of the Caribbean Sea), occupying a circular basin roughly the size of Antarctica. Its coastline is 45,390 km in length and belongs to landmasses in Eurasia (Russia, Norway), North America (Canada, USA/Alaska), Greenland, and several islands. The Bering Strait connects the Arctic Ocean to the Pacific, while the Greenland and Labrador Sea connect it to the Atlantic. Located mostly in the polar region in the middle of the Northern Hemisphere, estimates reckon that by 2040 the Arctic Ocean may permanently become ice-free for the first time in human history.88 This will probably increase the maritime traffic in the Arctic Ocean, which at present is minimal and mostly occurs during the summer months (May–September). Ships call on only a few dozen ports that are operative and open to foreign vessels, mainly located on what is known as the Northeast Passage (NEP), off Russia’s coastline. Shipping largely handles passengers and cargo such as iron ore and different fuels (oil and gas condensate; liquid natural gas—LNG, and diesel fuel). In response to numerous large-scale projects operating in northern Eurasia, Russian icebreaker fleets have succeeded in supporting year-round shipping by keeping open a stretch of sailing lanes that amount to approximately 30% of the NEP, known as the Kara Sea Route, since the late 1970s. This stretch is also part of another route, the Northern Sea Route (NSR), which comprises different sailing lanes. Courses are set depending on the ice conditions at any time and place. The NSR covers between 2200 and 2900 nautical

86

Ibid., p. 103, para. 122. Ibid., pp. 738–745, para. 262–282. 88 Holland et al. (2006). 87

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miles of ice-infested waters, connecting the Atlantic and the Pacific Oceans along the entire length of the northern coast of Eurasia. Finally, the Northwest Passage (NWP) consists of a set of seven sailing lanes between the Atlantic and the Pacific Oceans. It spans westward across the Davis Strait, the Baffin Bay, the straits and sounds of the Canadian Archipelago, and the Beaufort Sea. The Parry Channel, the main sailing lane in this route, divides the Canadian Archipelago into two main parts: the Queen Elizabeth Islands to the north and to the south, islands located north of the Canadian mainland. Running through a continuous archipelago with narrow straits, often jammed with impenetrable multiyear sea ice drifting in from the Central Arctic Ocean, the NWP is presently a more troublesome shipping route than NEP and NSR. Consequently, it has far fewer operative ports and is open mainly during the summer months.89 To become an effective shortcut between Europe and Asia, the Arctic Ocean will require large investments in improving infrastructure and rescue services in the area. As competitive shipping increasingly depends on the use of large-scale vessels, insurance costs demand expensive monitor systems that ensure that sailing lanes are adequately charted and supported in order to deal with contingencies that could otherwise lead to the loss of ships. As in the case of the Caribbean, this trend will put pressure on the Arctic ports to adjust their services to respond to the needs of larger vessels.90 Using geology-based probabilistic methods, the US Geological Survey estimates that the undiscovered oil and gas resources in all areas north of the Arctic Circle are 90 billion barrels of oil, 1669 trillion cubic feet of natural gas, and 44 billion barrels of natural gas liquids. Approximately 85% of these resources occur offshore, on continental shelves.91 According to the National Petroleum Council’s assessment, the USA and Russia have approximately equal portions of the Arctic oil potential, with approximately 35 billion barrels of oil each. In the case of the USA, in 2015, this represented about 15 years of its net oil imports.92 During the past decades, the size of the population in the circum-Arctic region has stabilized at just over four million people. Half-lives in Russia, where the Arctic population is decreasing due to “climigration” towards larger settlements and urban 89

Eger (2013). Ibid. 91 United States Geological Survey (2008), pp. 1–4. 92 National Petroleum Council (2015), pp. 11–12. Shortly before ending his administration, US President Barack Obama issued an executive order withdrawing hundreds of millions of acres of federally owned land in the Arctic and the Atlantic Ocean from new offshore oil and gas drilling. Fears and Eilperin (2016). The International Energy Agency’s 2016 World Energy Outlook monitors progress towards the 2015 Paris Climate Conference (COP21) target of limiting warming caused by fossil fuel emissions to less than 2 2218 C. According to this publication, the share of investment capital going to the fossil fuel development must drop to a third of total investment in the energy sector by 2040, to meet this goal. International Energy Agency (2016), pp. 1–8. This means that major fossil fuel companies committed to this goal will probably cut back the most risky and expensive projects, including new offshore oil and gas drilling in the Arctic Ocean. Darby (2016). 90

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centers. In contrast, population growth in other Arctic regions such as Alaska, Norway, and Iceland are offsetting Russia’s declining demographic trend in the area.93 Some sources indicate that 10% of the present circum-Arctic population belongs to indigenous groups. The north of Eurasia is home to at least 33 indigenous peoples that form part of a dozen distinct linguistic groups and many more self-identifying nations. All of them consider the Circum-Arctic to be their traditional homeland. For most of them, cultural, social, and spiritual heritage, as well as economic security, are linked to land and sea-based subsistence activities. Melting of sea ice due to global warming, extinction of some endemic species, resource extraction-based economic development, and pollution threaten to alter their traditional life-support systems. Despite this, local populations, in general, are optimistic about the local development of new resource projects, as they expect these will result in increased income. However, while warming may open the Arctic seas for transportation and the continental shelf for development, it may increase flooding and shorten the period during which ice roads allow exploration and development activity on the mainland tundra. Thawing ground may destabilize existing road and pipeline systems and other industrial infrastructure and lead to increased production costs in areas that currently support significant resource development activity as well as in the cost of future development. In summary, distributional concerns about the net benefits and costs related to resource development in the region and its environmental impacts remain largely unanswered.94 As in the case of the Caribbean Sea, the existing global framework of the UNCLOS and the United Nations Framework Convention on Climate Change (UNFCCC) are among the main governance structures in dealing with the challenges and opportunities arising from these transformations in the Arctic Ocean. The International Maritime Organization (IMO) guidelines for shipping together with established regional arrangements such as the Arctic Council and the Barents EuroArctic Council, provide the capacity to address issues concerning sustainable uses of the Arctic resources and the protection of the environment, the well-being of the Arctic indigenous people and other permanent residents. The origin of present governance arrangements in the Arctic Ocean predates the above-mentioned 1945 Truman Proclamation. The first treaty granting access to natural resources in Arctic territories under an equitable, administrative system is the 1920 Svalbard Treaty, currently in force. Initially ratified by more than a dozen “high contracting parties”, including the USA, Denmark, France, Italy, Japan, the Netherlands, Norway, Sweden, the United Kingdom, the Soviet Union, Germany, and China, the treaty recognizes the sovereignty of Norway over the Arctic Archipelago of Svalbard, subject to certain stipulations. Nationals and business ventures of contracting parties are eligible to become residents and have access to its fisheries, 93 94

Larsen and Fondahl (2014). Ibid., pp. 177–178.

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hunting, or undertake any kind of maritime, industrial, mining, or trade activity. Residents of Svalbard must follow Norwegian law; tax revenues and the Svalbard government expenses are separately budgeted from mainland Norway. The Norwegian government is committed to respecting and preserving the Svalbard environment. Finally, the treaty prohibits naval bases and fortifications as well as the use of Svalbard for war-like purposes.95 In the late 1970s, Norway and Russia agreed to operate a joint management arrangement for the Barents Sea fisheries, featuring substantial research collaboration on living marine resources and ecosystems as well as parallel quota management, monitoring, and enforcement procedures to limit illegal fishing. A decade later, in 1987, Canada and the USA entered into an agreement creating a co-management arrangement of the migratory Porcupine caribou herds between the Canning River in the State of Alaska and the Babbage River in Yukon Territory. An international board is responsible for recommending and monitoring management decisions concerning porcupine caribou migratory flows with input from members of user communities, as well as representatives of government agencies.96 Towards the end of the 1980s, on the initiative of the government of Finland, officials from the eight Arctic countries (Canada, Denmark, Finland, Iceland, Norway, Sweden, the Union of Soviet Socialist Republics—USSR, and the USA) met in Rovaniemi, Finland, to discuss cooperative measures to protect the Arctic environment. The parties agreed to work towards a meeting of circumpolar Ministers responsible for Arctic environmental issues. A series of intergovernmental meetings followed in Yellowknife, Canada, (April 1990); Kiruna, Sweden (January 1991); and Rovaniemi, Finland (June 1991). During these meetings, the parties prepared numerous technical and scientific reports, leading to the development of the Arctic Environmental Protection Strategy. Several observers, among them, the Inuit Circumpolar Conference, Nordic Saami Council, USSR Association of Small Peoples of the North, Federal Republic of Germany, Poland, United Kingdom, the United Nations Economic Commission for Europe, United Nations Environment Program, and the International Arctic Science Committee assisted the parties along the preparation process. The Strategy established several cooperative programs to monitor, assess, protect, prevent and prepare a response to emergencies concerning threats to Arctic flora and fauna, as well as the marine environment, including persistent organic contaminants, oil pollution, heavy metals, noise, radioactivity, and acidification.97

95

See Treaty between Norway, The United States of America, Denmark, France, Italy, Japan, the Netherlands, Great Britain and Ireland and the British overseas Dominions and Sweden concerning Spitsbergen signed in Paris 9th February 1920, pp. 1–7. 96 Arctic Governance Project (2010), pp. 3–6. 97 Ibid.

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The establishment of the Arctic Council in 199698 followed the Arctic Environmental Protection Strategy. The Ottawa Declaration99 formally established the Arctic Council as a high-level intergovernmental forum to promote cooperation, coordination, and interaction among the Arctic States. Since its inception, the Arctic Council has embraced an exceptional arrangement, which recognizes representative indigenous people organizations as permanent participants, allowing these non-state actors a strong voice in the Council’s decision-making process, in particular, concerning issues of sustainable development and environmental protection in the Arctic. Over the years, the role of indigenous people organizations has proved increasingly positive, leading to more nuanced thinking about key concepts, such as identity, citizenship, sovereignty. They also actively contribute in responding to the challenge of integrating the three basic pillars of the Arctic economy: large-scale natural resource production for the international market, small-scale traditional production for local consumption, and budget transfers from higher levels of government. While acknowledging the continuing role of states in establishing the rules of the game applicable to Arctic governance, the Arctic Council’s innovative devices have helped to find appropriate roles for non-state actors in promoting adequate stewardship and responses to needs for Arctic governance in an era of transformative change.100 Since the establishment of the Arctic Council, governance systems have continued to evolve in the region. Devolution from central government to the regional and local levels, allowing for indigenous people self-determination and forms of selfgovernment around resource governance, is a key trend in this process. However, the significant developments in power and economic benefit sharing structures at local and regional levels brought by this transfer of authority have come at the cost of greater demands reflected in roles and responsibilities that overwhelm local human and fiscal capacities. Finding creative solutions to overcome these gaps remains a crucial challenge for the future of the innovative governance system based on the co-production of the knowledge and strategies needed to address a changing Arctic.101 The important role of Arctic-specific norms is in permanent tension with the global regulatory frameworks established to deal with climate change and globalization, whose influence extends well beyond local or regional boundaries, as well as

98

Ibid. Ibid. 100 Ibid. 101 Larsen and Fondahl (2014), pp. 479–501. Increased involvement of Arctic peoples in resource ownership and development has highlighted the growing importance of incorporating traditional and local ecological knowledge in decision-making as well as of clearly delimited territorial rights. Devolution of power to local decision makers has been a major factor contributing to consolidate local resource governance in recent decades. However, increasing Indigenous representation in regional, national and international bodies entails ever-mounting demands on local and Indigenous representatives. 99

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with the challenging issue of delimitations of the maritime boundary in the light of the national legal systems that encompass the Arctic. In this regard, in 2007, the Russian Federation fueled discussions on claims concerning the outer continental shelf by the Arctic rim-States with its planting of a Russian flag in the seabed in the Arctic Ocean beyond the 200 nm limit of the EEZ.102 Despite media hype aroused by this incident, the Arctic states have since formally expressed their commitment to observe the norms, mechanisms, and procedures established by the extensive international legal framework of the law of the sea. Thus, in 2008, the five Arctic states confirmed their commitment to the orderly settlement of any possible overlapping claims within the framework of the international law of the sea, following its provisions concerning the delineation and delimitation of continental shelves’ outer limits, the protection of the marine environment including ice-covered areas, the freedom of navigation, marine scientific research, and other uses of the sea. “We, therefore, see no need to develop a new comprehensive international legal regime to govern the Arctic Ocean. We will keep abreast of the developments in the Arctic Ocean and continue to implement appropriate measures”.103 The fact that the USA, one of the five coastal Arctic States, is not a party to the UNCLOS represents an obstacle to this commitment. On the other hand, bilateral agreements on the delimitation of maritime zones, including the continental shelf between Norway and Russia in 2010, are encouraging. Yet the limits of the outer continental shelves in the Central Arctic Ocean, close to the North Pole, remain to be settled. Russia has submitted its data on the extended continental shelf in the Central Arctic Ocean to the Commission on the Limits of the Continental Shelf (CLCS), which overlap with the entitlements of Canada and Denmark/Greenland. Presently there are no indications that any major political conflict may arise over the Arctic’s continental shelf boundaries.104

6.2

Issues Concerning Delimitation of Extended Continental Shelves in the Arctic

The Arctic Ocean has a vast continental shelf, which in the absence of the present ice conditions, offers attractive conditions for maritime development. This is not yet the case, but littoral states have already initiated a delineation process, which will be discussed in this section. The situation in the North Pole is different from the maritime territorialization in the Caribbean, as there are no ongoing controversies in the international dispute-

Matz-Lück (2009), pp. 235–255. Although the planting of the flag in the ocean floor is irrelevant under international law, it reveals a political attitude that may make agreement and co-operation concerning the different demands more difficult. 103 Arctic Ocean Conference (2008), pp. 1–2. 104 Nele Matz-Lück (2011), pp. 155–191. 102

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resolution institutions concerning the maritime delimitation in the Arctic Ocean. It is likely that delimitations will eventually be effected through international agreements.105 The Arctic states have not objected to the submissions to the CLCS of concerned states with overlapping claims; instead, they have been willing to take the Commission’s recommendations without prejudice to their own submissions and the future delimitation. In the case of Nicaragua and Colombia, the CLCS will not deliver recommendations due to Colombia’s objections.106 Hence, the Arctic context presents a completely different situation with the delineation and delimitation of extended shelves, involving more cooperation on the part of the Arctic states, which will probably facilitate the role of the CLCS and the application of its recommendations. In the Circum-Arctic, some agreements on continental shelves delimitation have already been settled, as in the case of Russia and Norway in the Barents Sea.107 However, many issues are still to be resolved. Even in the present early stages, the CLCS submissions of Russia, Norway, and Denmark present overlapping entitlements in some areas of extended continental shelves. Consequently, maritime delimitations in the Arctic will probably become a major international relations issue in the near future and will involve powerful states whose practice is expected to contribute to developing customary rules on extended shelves’ delimitation. Most likely, the delimitation issues will be solved in the process of negotiations. The compulsory dispute resolution mechanisms established by UNCLOS are not available since Russia and Canada opted out of these mechanisms according to Article 298 (1), and Denmark excluded an arbitration tribunal constituted in accordance with Annex VII for delimitation disputes. The only possible option if negotiations fail (in the absence of an agreement to resolve disputes in an international tribunal) will be conciliation under section 2 of Annex V to the UNCLOS. Regardless of its singular geographical, geological, and climate conditions, the Arctic Ocean is subject to the same rules as any other ocean and has standard maritime zones: territorial seas, contiguous zones, EEZs, continental shelves, high seas, and the Area, a “common heritage of humanity”. The interest of littoral states to establish sovereign rights over extended continental shelf is obvious, but third states also have interests in the Arctic’s continental shelves delimitation,108 as it will determine the size of the Area. The remainder of this section will discuss the submissions to the CLCS made by the Arctic states to date.

105 In their submissions Russia, Denmark and Norway stated that delimitation will be effected by bilateral agreements. 106 See Communication of Colombia dated 5 February 2014: A/68/743 as a reaction to Nicaragua’s submission on the limits of the continental shelf beyond 200 nautical in the southwestern part of the Caribbean Sea. 107 See Treaty between the Russian Federation and the Kingdom of Norway concerning maritime delimitation and cooperation in the Barents Sea and the Arctic Ocean. Murmansk 15 September 2010, United Nations Treaty Series, vol. 2791, No. 49095, p. 3. 108 China, for example. Hong (2017).

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Russia is a major player in the Arctic region due to the length of its relevant coasts, extended continental shelf that it asserts, and military presence in the region. Strengthening its leading position in the exploration and development of Arctic resources is the main priority of the Russias Maritime Doctrine.109 Russia was the first party to present submissions to the CLCS based on Article 76 (8) of UNCLOS. It received recommendations from the CLCS in 2002 and made two additional revised submissions concerning the Okhotsk Sea and the Arctic Ocean, plus Addenda in 2021.110 So far, favorable recommendations by the CLCS have been delivered on the Okhotsk Sea Submission;111 and another is pending regarding the Arctic Ocean. However, if a party is not satisfied with the CLCS’ recommendations, it can present an unlimited number of submissions. In its partially revised submission on the Arctic and Addenda, Russia asserts that the Lomonosov Ridge, Mendeleev-Alpha Rise, and Chukchi Plateau are separate from the Podvodnikov and Chukchi Basins and tries to prove the continental origin of these submarine elevations. If these features were considered by the CLCS as submarine elevantions, the area of Russia’s extended continental shelf would extend beyond 350 nm. Article 76 (6) states that elevations are not subject to the 350 nm distance limit from the baselines. The Russian Federation and the Kingdom of Denmark have agreed that both parties will not object to the consideration by the CLCS of their respective submissions concerning their disputed areas and that they will mutually take CLCS’s recommendations without prejudice to the rights of the other party connected to the CLCS submission, nor to the delimitation of the continental shelf between them. Canada’s entitlement overlaps with Russia’s entitlement. Russia and Canada also reached a similar non-objection agreement. In respect to the delimitation of the continental shelf in the Arctic Ocean, Russia and Norway have reached an agreement on the delimitation of the areas comprising the continental shelf beyond 200 nm in the Barents Sea, as well as in the western Nansen Basin.112 There is also an agreement between Russia, as the successor state of the USSR, and the USA on the delimitation of the territorial sea, EEZ, and continental shelf in the Chukchi and

See “The Maritime Doctrine of the Russian Federation” approved by the Edict of the President of the Russian Federation July 26, 2015. 110 See Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, Tenth session. April 12, 2002. CLCS/32, para. 10. Also see Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission. 111 Progress of work in the Commission on the Limits of the continental Shelf. Statement by the Chair. Thirty-fourth session. March 31, 2014. CLCS/83. 112 See Treaty between the Russian Federation and the Kingdom of Norway concerning maritime delimitation and cooperation in the Barents Sea and the Arctic Ocean. Murmansk 15 September 2010, in force July 7, 2011. UNTS, vol. 2791, No. 49095, p. 3. 109

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Bering Seas, as well as in the Arctic and Pacific Oceans.113 However, as Russia has yet to ratify the agreement, its present application is provisional. In its submission on the Arctic Ocean, Russia also stated that the final delimitation of the continental shelf with Canada and Denmark would be carried out in accordance with the provisions of Article 83 of UNCLOS, after the adoption of recommendations on the Russian submission for the establishment of the outer limits of the continental shelf in the Arctic Ocean. The closest partner of Russia in the Arctic Ocean is Norway. The Norwegian government’s High North Strategy114 emphasizes the need for building good relations with Russia, a strategy that has brought positive results after Russia and Norway entered into the agreement on the Barents Sea. Norway submitted data on the outer limit of its continental shelf in 2006 and was the first Arctic state to delineate the extended continental shelf based on recommendations of the CLCS. That same year, Norway, Denmark, and the Government of Greenland signed an Agreement on the delimitation of the continental shelf and the fishery zones in the area between Greenland and Svalbard. The treaty establishes that the parties will decide on the delimitation of the extended continental shelves upon the establishment of their respective outer limits. The government of Denmark, together with the government of Greenland, did not object to the Commission considering Norway’s submission or to making recommendations. In reciprocity, Norway made no objections to the CLCS considering and making recommendations on the partial submission by Denmark in respect to the Northeastern continental shelf of Greenland.115 Norway has overlapping claims in the Southern Banana Hole with Iceland and Denmark/the Faroe Islands and in the maritime areas between Svalbard and Greenland. Thus, in 2006 the Faroe Islands, Iceland, and Norway signed the Agreed Minutes on the delimitation of the continental shelf beyond the 200 nm in the southern part of the Banana Hole of the northeast Atlantic.116 On 30 October 2019, Iceland, Norway and Denmark signed three maritime delimitation Agreements regarding the extended continental shelves in the southern part of the “Banana Hole” (North Atlantic). Since 2006, Denmark has made five partial submissions to the CLCS concerning the following: 1. The North of the Faroe Islands (2009) that includes unresolved questions that persist about the delimitation of the continental shelf with Iceland and Norway;

113

The Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary, Washington 1 June 1990. 114 The Norwegian Government High North Strategy (2017), p. 5. 115 Executive Summary of the Partial Submission of the Government of the Kingdom of Denmark together with the Government of Greenland to the Commission on the Limits of the Continental Shelf, The North-Eastern Continental Shelf of Greenland. October 2013. 116 Recommendations by the CLCS were issued in 2014. See Recommendations of the Commission on the Limits of the Continental Shelf in regard to the Partial Submission Made by the Government of the Kingdom of Denmark together with the Government of the Faroes in respect of the Continental Shelf North of the Faroe Islands on 29 April 2009. March 12, 2014.

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2. The Faroe-Rockall Plateau Region (2010) that includes claims regarding the Southern Continental Shelf of the Faroe Islands that overlaps with the entitlements of Ireland and the United Kingdom;117 3. The southern extended continental shelf of Greenland (2012) includes a possible overlap in the southwestern part with Canada. Parties agreed not to object to the CLCS consideration of their submissions and that the final delimitation will be determined by a treaty; 4. Greenland’s North-Eastern continental shelf (2013) that includes an unresolved dispute with Norway; 5. The Northern Continental Shelf of Greenland includes unresolved disputes with Norway, Russia, the USA, and Canada.118 Denmark, together with Greenland and the Faroe Islands, share a joint Arctic Strategy 2011–2020. The Danish objective is to prevent conflicts and avoid the militarization of the Arctic.119 The states of the Realm consider climate change and technological developments as opening new possibilities for the Arctic, including access to develop natural resources, as well as new shipping routes that could reduce costs and CO2 emissions by freight between continents. Canada’s Arctic Foreign Policy states that its priority is to exercise sovereignty over the country’s Northern Territories.120 The four pillars of this strategy include exercising sovereignty, promoting economic and social development, protecting environmental heritage, and improving and devolving Northern governance. Special attention is given to the resolution of boundary issues and securing international recognition for the full extent of the Canadian extended continental shelf.121

117 See Executive Summary of the Partial Submission of the Government of the Kingdom of Denmark together with the Government of the Faroes to the Commission on the Limits of the Continental Shelf, The Southern Continental Shelf of the Faroe Islands. November 2010, p. 15. Another potential maritime dispute exists in relation to the continental shelf of Iceland. The governments of Denmark and Faroe Islands stressed by means of notes dated May 27, 2009, that recommendations by the CLCS about the partial submission by Ireland and the United Kingdom concerning the Southern Continental Shelf of the Faroe Islands, shall not prejudice matters relating to delimitation of the outer limits of this continental shelf. The Kingdom of Denmark together with the government of the Faroes only agreed on the Commission to consider the submissions of Ireland and the United Kingdom of Great Britain and Northern Ireland, provided that the 2010 FaroeRockall Plateau Region Submission is considered simultaneously. 118 See Executive Summary of the Partial Submission of the Government of the Kingdom of Denmark together with the Government of Greenland to the Commission on the Limits of the Continental Shelf, The Northern Continental Shelf of Greenland. November 2014, p. 18. The agreement with Norway expresses that the parties do not object to the consideration of this submission by the CLCS. In a similar vein, the 2014 Agreement between the Russian Federation and the Kingdom of Denmark also provides for no-objection of their respective submissions. Regarding the USA, the partial submission mentioned is a matter subject to consultations between parties. 119 Denmark, Greenland and the Faroe Islands: Kingdom of Denmark Strategy for the Arctic 2011–2020, p. 1. 120 Government of Canada (2010), p. 3. 121 Ibid., p. 4.

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On December 6, 2013, Canada presented its partial submission concerning its claim on the continental shelf in the Atlantic Ocean (Labrador Sea, Grand Banks, Nova Scotia) to the CLCS.122 In the Labrador Sea region, Canada and Denmark detected concurrent claims in their respective continental shelves and reached an agreement that, upon submission of data on the limits of the continental shelf by one of the parties to the CLCS, the other would promptly send a diplomatic note to the UN Secretary-General. The note would advise that it does not object to the consideration of the submission to the CLCS, specifying that the respective recommendations by the CLCS would be without prejudice both to the consideration by the CLCS of its own submission and to matters relating to delimitation. There is an overlap between Canada’s and the USA’s continental shelf entitlements in the Beaufort Sea. The USA did not object to the consideration of Canada’s submission, noting that this consideration would be exercised without prejudice both to the delineation of its own shelf and to matters relating to delimitation between Canada and the USA. Canada submitted data on its extended continental shelf in the Arctic Ocean on May 23, 2019. In 2013, Canada provided the CLCS with the preliminary information, where it stated that it faced the challenge of collecting data in areas that are ice-covered, difficult to access, and, in some instances, had not previously been surveyed.123 Canada included the Lomonosov, the Alpha Ridges, and the Mendeleev Rise as submerged prolongations of its landmass.124 Finally, the USA became an Arctic state with the cession of Alaska in 1867. It is the only state participating in the outer continental shelves’ delimitation in the Arctic Ocean that is not a party to the UNCLOS. Thus, it does not carry an obligation to submit information to the CLCS. According to Eugene Petrov (2015), the outer limits of the US’s continental shelf will probably include the Chukchi Plateau and part of the Canada and Podvodnikov Basins.125 Most of the overlapping extended shelves in the Arctic Ocean are not yet delimited. Previously, some Arctic states126 used the sectoral principle of delimitation. However, the contemporary position of all Arctic states switched to UNCLOS. Thus, the sectoral method will not play a leading role in the future delimitation. However, states can use any delimitation methods they deem suitable to achieve an equitable solution,127 and the sector method may be useful for the delimitation of the area around the North Pole. Though it is likely that there are no valuable natural resources in that area, the North Pole has symbolic importance for Canada, Denmark, and Russia. As recommendations by the CLCS are expected within the next

122

United Nations (2013). United Nations (2013). 124 Ibid. 125 Petrov (2015). 126 The Russian Federation (the USSR) accepted the sectoral principle of delimitation in 1926. Canada approved it in 1925. 127 Tulupov (2015) & United Nations Convention on the Law of the Sea (1982), art. 83. 123

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10–12 years, the Arctic states will probably begin negotiations concerning the maritime delimitation of continental shelves in the near future, and the agreements will be effected based on international law. Failing to reach an agreement on maritime delimitation, the Arctic states may file claims before international fora such as the ICJ, ITLOS, Arbitral Tribunal,128 and an Ad hoc Arbitration Tribunal. Compulsory dispute resolution is not available in case of the delimitation dispute in the Arctic. A necessary condition will be that parties agree to the jurisdiction of international dispute resolution institutions. Articles 20 and 21 of Annex VI to UNCLOS allow non-party states to access the UNCLOS dispute resolution mechanism in case a non-party state (USA) agrees to the jurisdiction of an institution to resolve the dispute. If the dispute originates after UNCLOS has entered into force, then UNCLOS will be the governing law between the parties to it. If a dispute involves the USA, customary law will be applicable.

7 Concluding Remarks Discussions about the modern law of the sea, particularly concerning the delimitation of extended continental shelves, are usually highly technical. Not surprisingly, the topic is often characterized as exceedingly arid. Partly, this is because extended continental shelves are complex physical features that do not generally adjust to the imagined juridical space that its definition tries to encompass. In summary, as embodied in Articles 76 and 83 of UNCLOS, the delimitation of a continental shelf constitutes a delicate balance between applied science and the bureaucratic obstacles to the administrative system established to support and supervise unilateral claims. Significantly, discussions about the modern law of the sea simply overlook the fact that as political bargaining processes and different international legal regimes, UNCLOS originated in the context of global decolonization that came in force during the 1960s and 1970s. In the process, many former colonies demanded that their interests and positions should be considered in the establishment of an international convention that would govern the ocean and the resources of the sea. The Group of 77 represented most former colonies and their claims to a redistributive order that would remedy the resource and technological disparity that resulted from colonialism by means of a seabed regime based on the principle of a “common heritage of mankind” under the administration of the International Seabed Authority (ISA). In the end, what prevailed was an agreement that physically reduced the scope of the res communes status of the seabed by incorporating the natural prolongation criterion beyond a 200 nm cut-off point from the coastal baselines. In practical terms, this arrangement minimized the amount of seabed regulated by the ISA and allowed states with wide continental margins the flexibility to “territorialize” their control 128

Under the Annex VII to the UNCLOS.

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over seabed activities. This modification cleared the way for industrialized countries to finally agree to UNCLOS. By setting “legalized scientific criteria” to define the breadth of extended continental shelf claims, the UNCLOS defused a highly politicized negotiation over the definition that would favor the common interests of the “geographically disadvantaged countries”, including many of the small island developing states in the Caribbean as well as other less developed and land-locked states. Furthermore, UNCLOS indiscriminately left the burden of undertaking the scientific research and necessary analysis to establish the final and binding outer limit of the continental shelf to each coastal state. This arrangement clearly tilts the playing field against the less developed countries and, specifically, against small island developing states vexed with the most scientifically and legally challenging aspects of Article 76 concerning “ridge” claims. Accordingly, the current implementation trajectory of the continental shelf regime governs an arrangement that systematically produces unbalanced outcomes against the most disadvantaged. Thus, UNCLOS is better suited presently for the delimitation of extended continental shelves in a geopolitical context such as the Arctic Ocean than for the Caribbean Sea. It is necessary to briefly consider the concept of boundary in maritime contexts. Terrestrial, linear, spatial boundaries enclose the limits or jurisdiction exercised by a sovereign governing body, which excludes any claim to rights or powers of other sovereign authorities or states. The process of delimitation of continental shelves under UNCLOS is based on this linear, spatial concept of boundary, which allows for the unilateral “national” annexation process by which countries have claimed territorial and sovereign rights over their territorial seas, EEZs, and extended continental shelves. Advances in ocean technology, greater demands on marine resources, an increasing number of ocean users, and the need to properly control and manage the EEZs require a cooperative attitude and capability as well as recognition that maritime boundaries are functionally different from land boundaries. Although coastal states have an obligation to provide protection to marine living resources, the establishment of separate maritime zones by means of a single linear boundary does not warrant effective ecological, technological and administrative management and protection for these resources in maritime spaces that are open ecological systems in which currents, nutrients, and marine populations are in constant flux. Thus, maintaining management authority and equitable allocation of access rights to live marine resources may call for numerous spatial, functional, and administrative maritime boundaries. Delimiting such boundaries will require complex criteria, the expansion of the existing frameworks for analyzing disputes, as well as innovative bilateral and multilateral governance arrangements.129

129

Beauchamp (1986), pp. 611–660.

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International Energy Agency. 2016. 2016 World Energy Outlook. Executive Summary. Paris: OECD/IEA. International Ocean Symposium. 1978. The Deep Seabed and Its Mineral Resources. In International Ocean Symposium, Proceedings of the 3rd International Ocean Symposium. International Tribunal for the Law of the Sea. 2012. Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, p. 4. Ireland, G. 1971. Boundaries, Possessions, and Conflicts in Central and North America and the Caribbean. New York: Octagon Books. Keppie, F. 2013. The Rationale and Essential Elements for the New “Pirate” Model of Caribbean Tectonics. Geoscience Canada 40: 9–16. Londoño-Paredes, J. 2015. Colombia en el Laberinto del Caribe. Bogotá D.C: Editorial Universidad del Rosario. Matz-Lück, N. 2009. Planting the Flag in Arctic Waters: Russia’s Claim to the North Pole. Göttingen Journal of International Law 1 (2): 235–255. ———. 2011. Continental Shelf Delimitation and Delineation in the Arctic: Current Developments. German Yearbook of International Law 54: 155–191. National Petroleum Council. 2015. Arctic Potential. Realizing the Promise of U.S. Arctic Oil and Gas Resources. Washington D.C.: National Petroleum Council – Committee on Arctic Research. Nymand Larsen, Joan, and Gail Fondahl, eds. 2014. Arctic human development report regional. Processes and global linkages. Copenhagen: Nordic Council of Ministers. Petrov, E. 2015. Political Geology in the Arctic. Geo ExPro 12. Retrieved from: http://www. geoexpro.com/articles/2015/03/political-geology-in-the-arctic. Pindell, J., and K. Lorcan. 2009. Tectonic Evolution of the Gulf of Mexico, the Caribbean and Northern South America. In Mantel Reference Frame: An Update, ed. M. Keith and J. Pindell. London: Geological Society of London. Reppy, A. 1950. The Grotian Doctrine of the Freedom of the Seas Reappraised. Fordham Law Review 19 (3): 243–285. Retrieved from: http://ir.lawnet.fordham.edu/flr/vol19/iss3/1. Salomon, M. 2013. From NIEO to Now and the Unfinishable Story of Economic Justice. The International and Comparative Law Quarterly 62 (1): 31–54. Sandner, G., and B. Ratter. 1997. La territorialización del Mar Caribe. Transfondo de intereses y áreas conflictivas en el manejo estatal de la delimitación fronteriza según el derecho el mar. In Conflictos territoriales en el espacio marítimo del Caribe. Transfondo de intereses, características y principios de solución, ed. G. Sandner and B. Ratter. Bogotá: Fondo FEN. Singh, A. 2008. Governance in the Caribbean Sea. Implications for Sustainable Development. Research paper, The United Nations – Nippon Foundation Fellowship Programme. Tulupov, D. 2015. Amusing Delimitation: How to Neatly Split the Arctic Shelf. RIAC. Retrieved from: http://russiancouncil.ru/en/analytics-and-comments/analytics/amusing-delimita tion-how-to-neatly-split-the-arctic-shelf/ UN General Assembly. 1957. Resolution 1105 (XI) of 21 February 1957. New York: United Nations. United Nations. 1945. Charter of the United Nations, 24 October 1945, 1 UNTS XVI. http://www. unwebsite.com/charter. Accessed 16 May 2017. United Nations. 1982. United Nations convention on the law of the sea. Montego Bay: 1833 UNTS, 1982. (In force 16 November 1994). United Nations Environmental Programme. 2010. Global Environmental Outlook: Latin America and the Caribbean GEO LAC 3. Panama City: UNEP. United Nations General Assembly. 2014. Communication of Colombia dated 5 February 2014: A/68/743 as a reaction to Nicaragua’s submission on the limits of the continental shelf beyond 200 nautical in the southwestern part of the Caribbean Sea. United Nations General Assembly. Retrieved from: http://undocs.org/A/68/743 United States Geological Survey. 2008. Circum-Arctic Resource Appraisal: Estimates of Undiscovered Oil and Gas North of the Arctic Circle. United States Geological Survey, Fact

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Dr. Ekaterina Antsygina PhD, Queen’s University, Canada; postdoctoral researcher, University of Hamburg. Email: [email protected] Bernardo Pérez-Salazar Associate researcher. M.A. degree from the International Institute of Social Studies in The Hague, Netherlands, in regional development planning. Candidate to Ph.D. from Universidad Santo Tomas, Bogotá, Colombia. Professor and researcher of the Universidad Católica de Colombia. Email: [email protected]

Borders in Airspace and Outer Space Jairo Becerra, Paula Pérez, and Laura Duarte

Abstract This chapter presents the concepts of airspace and outer space, as well as the key issues regarding their boundaries, emphasizing the lack of a legal delimitation that allows dividing these two regimes. It later makes a reflection regarding the problems that arise from this legal vacuum concerning the conflict between the freedoms of space, namely, its exploration and use, with the vindication of the principle of sovereignty of the states, taking as a specific case the use of the geostationary orbit.

1 Introduction The air and outer space have been sources of unending fascination for humankind. As the possibility of accessing these spaces arose in the beginning and middle of the twentieth century, respectively, so did the need to regulate them and, as one would expect, to determine their boundaries, which brings forth the problems associated with the discussion. The signee countries to the Chicago Convention distinctly determined the need to address delimitation and, with it, airspace boundaries, faced with the developments in aeronautical technologies and considering that “the development of international civil aviation can contribute impressively to create and preserve friendship and

This chapter is the result of the research projects entitled Law and Big Data developed with the group Public Law and ICT, linked to the Socio-Legal Research Center (CISJUC) at the Faculty of Law of Universidad Católica de Colombia, in Bogotá. J. Becerra (*) · P. Pérez · L. Duarte Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 D. Endrizzi et al. (eds.), Frontiers – Law, Theory and Cases, https://doi.org/10.1007/978-3-031-13607-8_4

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understanding among the nations and peoples of the world, while the abuse of it can constitute a threat to general security”.1 Despite this, the Chicago Convention of 1944 does not establish a precise definition of the concept of airspace, limiting itself only to establishing, in its first Article, that “The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory”, which it defines in Article 2 as “the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State”. These definitions allowed determining the horizontal boundary of airspace in each State, as well as the lower, vertical boundary; however, the upper vertical boundary (the limit with outer space) was left undefined. The lack of precision in the Chicago Convention of 1944 on the upper vertical limit of the concept of airspace is understandable, considering that back then, outer space was not accessible, and therefore, addressing the matter was not relevant or practical. It became both in 1957, 13 years later, with the outset of “the Space Race” on October fourth when the Soviet Union launched the first artificial satellite, known as Sputnik.2 The flight of this satellite over various territories, among them the United States, generated a reflection on the encroachment and sovereignty of the States beyond their airspace and the need to delimit it upwards. At the time, this scientific development was considered a threat to the North American nation in the context of the Cold War. “The Chicago Convention of 1944 was not enforced by virtue of the recognition of the sovereignty of airspace, nor was the freedom of navigation allowed on the high seas indicated by the applicable legislation”,3 as the notions here contained resulted inapplicable to outer space, then “the progressive expansion of the scope of space-related activities and the growing number of nations utilizing space justified the development of new international norms for space activities”.4 However, as no legal instrument delimits the existing boundary between airspace and outer space, the issue was outlined but not resolved; this was the inception of what ultimately would be established, the concept that they are different spaces, subject to different legal regimes.

2 Airspace Since the end of the eighteenth century, humankind had already conceived mechanisms to traverse the airspace; because of this, problems began to arise, issues such as how to determine the level of the sovereignty of the States over the airspace above

1

International Civil Aviation Agreement signed in Chicago on December 7, 1944. Gaggero (n.d.), p. 1. 3 Ramón (2017). 4 United Nations (1994), p. 46. 2

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their territory. This aeronautical development gradually evinced the dangers or transgressions to peace and security of the states from the new potentials of aviation. For millennia man has yearned to dominate the air, circle the skies like a bird. To this end, and with little understanding of physics and aerodynamics, two Frenchmen achieved the first free balloon ascents in 1783. By 1884 the balloon was equipped with a motor, which enabled fixed and pre-established courses. In 1903 and 1905, the Wright brothers managed to fly 260 m at 38 km ushering in the birth of aviation and the desire to go further and faster by this means. Luis Pérez Cabrera takes us back to the “EOLE”, the first properly named airplane created by Clement Ader. On the 9th of October 1890, the airplane flew 50 m; the achievement was repeated in 1892 by airplane II, which flew 200 m; these feats are considered the first flights in the history of humankind. Santos Dumont was the first man to board an airplane and lift off in a self-propelled aircraft heavier than air.5 The first regulations arose to neutralize the use of air for belligerent purposes; this occurred in the first peace conference at The Hague in 1899 where a declaration was issued prohibiting for 5 years the launching of projectiles or explosives from balloons or other means, declaration that in 1907 resumed this prohibition from aircraft. Also derived from the issue of defining the sovereignty that States would have over some portion of the airspace and, therefore, the delimitation of frontiers, the international community signed several international instruments to establish the edges and autonomies of airspace between countries. In these agreements (The Paris Convention of 1919, Madrid Ibero-American Convention of 1926, and Chicago Convention of 1944), ample legal bases were provided for the recognition of the full sovereignty of any state over the airspace above its territory (terrestrial and maritime), as well as the exceptions pertaining to the inoffensive transit of aircraft, which are defined by specific characteristics and without upsetting the existing principles and norms for such purpose. These characteristics are embodied in the 1944 Chicago Convention, which establishes that in times of peace and through established air routes, civilian aircraft should be allowed to pass through the airspace of the signatory states. Years later, as a result of the multiple attacks occurring against the safety of air navigation by individuals or groups, the International Civil Aviation Organization (ICAO) supported three important conventions for the protection and safety of air navigation: the Convention on Offenses and Certain Acts Committed on Board Aircraft, held in Tokyo on September 14, 1963; the Convention for the Suppression of Unlawful Seizure of Aircraft, in The Hague on December 16, 1970; and the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, in Montreal on September 23, 1971.6 These proceedings contributed to the delimitation of airspace borders when defining the interference that a state could

5 6

Pérez (2015), pp. 168–169. Becerra (2014).

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have on the jurisdiction of another state, for example, by having the possibility of intervening in an aircraft registered in a different state, as well as on its occupants. Seeking the protection of nations and an understanding between them, a “set of principles and norms that govern aeronautical activity and the legal relationships that arise from it”7 are outlined, to be subsequently created and implemented. Hence, as Monroy8 points out, there is an international to establish legal norms for the proper use of air traffic concerning air navigation and the improvement of air transport (limits for transport) and radio waves (limits in communications). Moreover, the principle of freedoms of the air guarantees the respect of other states’ right to use the airspace of all the other states to transmit wireless, radiotelegraph, and radiotelephone communications (sovereignty limitations, which gives place to the character and management of this frontier). These norms were regulated at the Berlin Conferences of 1903 and 1906, as well as in London in 1912, together with the conventions on radiotelegraphy subscribed there. There is a set of freedoms focused mainly on the development of aeronautical trade, which limits the sovereignty of the states’ airspace, making their borders permeable because of their function and primary use. These are framed in the established system for air navigation, which includes the Chicago Convention and its annexes. These include: – The right to fly over a foreign country without landing. – The right to mechanical stops or landing for noncommercial reasons. – The right to disembark passengers, mail, and goods shipped to the territory of the state whose nationality the aircraft has. – The right to embark passengers, mail, and goods to the territory of the state whose nationality the aircraft has. – The right to embark and disembark passengers, mail, and merchandise from or to the territory of any state party.9 Finally, it should be noted that airspace regulation has been not just international. Under the sovereignty that each state has within its air borders, each country has developed complex internal regulations that ensure safe and efficient air navigation within its airspace, known as cabotage, and allows to delimit the desired air borders between the states further. Inaccuracies in the Concept of Airspace Different authors have defined airspace. Some consider it a “basic exercise of state sovereignty extracted from the principles of territoriality, which is applied to the general principle of national sovereignty”,10 a concept that is consistent with the provisions of the Chicago Convention of 1944. Other authors define it as “the

7

Cortes and Kure (2013). Monroy (2011). 9 González et al. (2008), p. 655. 10 Guerrero (Coord.) (2012), p. 119. 8

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environment in which air is contained and is, on the other hand, fixed, definable, perfectly delimited, constant, susceptible to appropriation, and of jurisdiction or sovereignty, as air is gaseous, mobile, renewable, permanent and, consequently, not appropriable”,11 embodying an intermediate theory between sovereignty and rights of use that has a direct impact on the delimitation of borders and their characteristics. The development of the legal concept of airspace presents obvious complications “if one takes into account that not all reality penetrates the legal system and, specifically, penetrates only to the extent that it is self-conceptualized and capable of being conceptualized through the filter of general concepts”,12 The previous, because the concepts proposed by the authors and international legal instruments such as the Warsaw Convention of 1929,13 the Chicago Convention of 1944, the Hague Protocol of 1955, and the Montreal Convention of 1999, among others, lack a precise definition of the concept of airspace, explicitly, regarding its vertical limitation concerning the upper boundary, which borders with outer space. Therefore, there is no agreement specifying this area. Hence, at present, there is no upper limit of airspace (at least not established in sources such as international treaties). To a certain degree, this delimitation will depend on the one adopted concerning outer space14 (conventionally). According to Norka López Zamarripa, in his book, The New Public International Law: (. . .) The arduous problem in the delimitation of the airspace is not precisely the lateral limit but the upper limit of the airspace. This is a delicate question that is not exempt from controversies on what this limit constitutes. In turn, the lower limit of the extra-atmospheric or external space poses a barrier between two very different legal regimes. There is no agreement regarding the precise boundary between both spaces (. . .).15

Now, one of the problems that arise from the lack of precision of the concept of airspace is the conflict between the theory of freedom and sovereignty. Authors such as Enrique Gaviria point out that the airspace is fixed, definable, limited, constant, appropriable, and susceptible to acts of jurisdiction or sovereignty because it contains the air. Other authors, such as Paul Fuchille, argue that airspace is not susceptible to occupation or private appropriation. However, there are multiple criteria regarding the maximum elevation of State sovereignty over its airspace. Initially, it was said that it was 1500 m, then 500, and finally, 300 m; these theories have dwindled.16 Considering that the theories of freedom and sovereignty concerning airspace have arisen from the ambiguity of the concept, we will proceed to expose each of these theories.

11

Cortes and Kure (2013). Guerrero (2012), p. 119. 13 Warsaw Convention for the Unification of Certain Air Traffic Rules. 14 González et al. (2008), p. 648. 15 López Zamarripa (2008), p. 492. 16 Gaviria (2005). 12

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The theory of freedom postulated by Paul Fauchile in 1901 is based on the argument of the impossibility of appropriation of airspace, states “airspace not being able to be the object of appropriation or occupation or have a way of imposing authority or sovereignty over it, should be free without prejudice to the rights of defense of the overflown space”.17 This theory presented before the Institute of International Law at its session in Brussels in 1902, and accepted at the Conference in Ghent by the Institute of International Law, in 1906, declared that “neither in times of peace nor in times of war can one speak of air sovereignty”, even though this theory was accepted by authors such as Álvaro Bauza who stated that “Air space is not, in general, subject to approval, there is no room for property right over it, at least with the characteristics of this right and its attributes”18 is currently not applicable as a consequence of the multiple international and national legislations that recognize sovereignty over airspace. List, Von Ulman, and Baldwin have postulated the Theory of Sovereignty, according to which “airspace is subject to the sovereign authority of the underlying States”,19 a position embodied in Articles 1 and 2 of the Chicago Convention of 1944. Intermediate Theories arise in the pursuit to reconcile the theory of freedom and sovereignty. Fachille proposed one of these theories. He said, at the time, that sovereignty up to an altitude of 1500 m could be exercised for defense purposes. He later postulated, together with Von Bar, before the International Law Institute in Madrid, in 1911 that “international air circulation is free, except for the State’s right on whose territory it will be studied, according to the State’s safety requirements, as well as its people’s and the property of its inhabitants”.20 With the same conciliatory purpose, the first article of the Paris Convention of October 13, 1919 states “(. . .) every Power has completed and exclusive sovereignty on the atmospheric space over its territory”. It is stated in the book, Cuestiones actuales del Derecho Aéreo capitulo espacio aéreo y soberanía (Current Issues of Air Law, Chapter Airspace and Sovereignty) that “He declared himself in favor of circumscribing the freedom to use the high sea’s air space and, therefore, expand this concept”.21 Regarding the right of passage, the extension of airspace indicates that freedom of overflight refers to quick and uninterrupted transit. However, it has been demonstrated that the air and sea are finite mediums. More than a means of transit, they are crucial vehicles for radio or television retransmissions, with a broad impact on audiovisual media, which require distribution and legal regulation. The predominance of sovereignty over the air guarantees the freedom of air navigation but, in turn, raises questions about its care, since the air is of an imprescriptible nature for life on the planet. Thus, the excessive aerial activity could affect the space or mass of

17

Rodríguez (2002). Bauza (1995). 19 Rodríguez (2002), p. 67. 20 Ibid. 21 Guerrero (2012). 18

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air belonging to humanity. Therefore, the international community, facing issues such as air pollution, has initiated measures that address State obligations and responsibilities. The Convention of November 13, 1979, on long-distance transboundary air pollution, raised questions on the States’ responsibility, claiming that airspace borders are a fictitious and unnatural construction, which, to address issues such as pollution, require a shared state responsibility that does not end where a state’s airspace ends. Moreover, the unlimited sovereign right to airspace cannot be invoked; this conveys the notion that air borders involve very established components of sovereignty and disposition of states, as well as components that make necessary not only the limitation of disposition but, the implementation of international principles, such as cooperation between nations to, paradoxically, endorse the definition of the border.

3 Extra-Terrestrial or Space Law In 1945, Arthur C. Clark proposed placing artificial satellites in an orbit so that when observing them, they seem fixed. However, it was only in 1952 at the III International Congress of Astrophysics held in Stuttgart, Germany, that studies on the subject commenced. Between 1957 and 1958, subjects like measurements of the solar activity, physics of the upper atmosphere, meteorology, and geomagnetism, among others, began to be addressed. These contributions by physics and cosmology helped us to begin to understand this new space of human foray and, hence, its limits. In October 1957, the USSR placed the first artificial satellite, the Sputnik, into orbit. This event generated many questions, such as how far does the sovereignty of states extend? Regarding the celestial bodies found, how would appropriation be handled? What impact would satellites have on the war? Moreover, to what extent could satellites become nuclear weapons stores? The result was “the progressive expansion of the scope of space activities and the growing number of nations that use space justified the progressive development of new international standards for space activities”.22 One year after the Russian launch, the United States made the request to the United Nations Organization “that space activities be protected by International Law and the Charter of the United Nations”.23 As a result of this request, in 1958, “the United Nations’ Committee on the Peaceful Use of Outer Space (COPUOS), is created, along with its Scientific and Technical, and Legal Subcommittees. The first rules of Spatial Law are developed in the latter”.24 In this way, the right of outer space is born and continues to be developed “aimed at regulating the relations between States in this matter, and also determining the

22

United Nations (1994), p. 46. Pardo (2016), p. 94. 24 Gaggero (n.d.). 23

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rights and duties that arise from activities directed towards outer space and those that are intended to be developed there”.25 The Outer Space Treaty of 1967 (The Magna Carta of space) establishes, implicitly not explicitly, a legal border between airspace and outer space, which is extracted from the characteristics of the spatial, legal regime. In the treaty, outer space is determined as a patrimony of humanity. In turn, the Treaty establishes the right of transit and freedom of use and exploitation and prohibits its use for war and military activities, among others. “However, for the OACI [International Civil Aviation Organization], there is a limit to the sovereignty of States; it considers that in interplanetary space, a system of “co-sovereignty” governs between States, and outside those limits, a nullius or cosmic space applies that does not belong to anyone”.26

4 The Absence of Legal Delimitation of the Limit Between Air Space and Outer Space The uncertainty in the delimitation of a limit between airspace and outer space arises from the “lack of definition and delimitation of air and outer space, absent in the Paris Convention of 1919, the Chicago Convention of 1944, and the Space Treaty of 1967”.27 The uncertainty in the delimitation of the border between airspace and outer space arises from the “lack of definition and delimitation of air and outer space, absent in the Paris Convention of 1919, the Chicago Convention of 1944, and the Space Treaty of 1967”. This uncertainty generates global concerns regarding the promise of responsibility of the states that exercise the freedoms of access, navigation, use, exploration, trade, and science in outer space. These emerging concerns and gaps are addressed through the issuance of treaties by the United Nations that establish, for example, the obligation to communicate information about space activities to States or the obligation to control pollution (without solving its border itself), producing a normative compendium made up of four treaties complementing the ones concerning spatial principles. These are: – Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space on April 22, 1969; – Convention on International Liability for Damages Caused by Space Objects on March 28, 1972; – Convention on Registration of Objects Launched into Outer Space of November 12, 1974; and

25

Diederiks-Verschoor (2008). Pérez (2015), p. 185. 27 Pardo (2016), p. 87. 26

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– Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of December 5, 1979. Considering the differences between the physical-chemical aspects between outer space and airspace, such as the space-time relationship, gravity, absence of oxygen, radiation, and its infinite dimension, it is valid to affirm that under natural law, “Airspace and outer space are two spaces of different essence and, therefore, differentiable”.28 Despite understanding this reality, as well as the delimitation of airspace, positive law has not accurately defined this area. However, there are different doctrinal criteria. A. Fernández Tomás provides delimitation from three blocks: The scientific criteria based either on placing the limit on the place where the atmosphere ends or the limit of the terrestrial gravitational field; (. . .) the functional criteria, which is the area in which an aircraft or a space object can be deployed, respectively; and finally, the zonal criteria, which consist of setting a maximum conventional limit for the airspace.29

Enrique Gaviria also weighs in, presenting the following proposals for the delimitation based on: 1. Physical elements: Demarcation from the balance of the upper limits of national sovereignty and the concept of atmosphere or from the division of the atmosphere into layers or based on the effects of the earth’s gravity. Regarding this delimitation variable, it must be said that despite airspace and outer space being differentiable because of their physical-chemical aspects, an agreement has not yet been reached regarding the establishment of a limit based on this characteristic. 2. Technological or scientific progress: This equates the geophysical and legal limits of the atmosphere and, thus, establishes the division between air space and outer space, finding criteria such as the one that proposes an upper limit that extends up to 60,000 miles, as opposed to those that maintain that the upper limit of the atmosphere must be set between 100 and 650 miles above the surface of the earth. In the absence of the recognition of a single theory regarding the delimitation according to technological or scientific progress, the vertical limit of airspace and outer space cannot be defined with this sole variable. 3. The division of the atmosphere’s layers: This involves the troposphere, stratosphere, mesosphere, and ionosphere. The troposphere has an upper limit of 40 km; the troposphere and stratosphere are estimated to contain 99% of all the air that surrounds the earth. The mesosphere extends approximately up to 80 kilometers above the surface of the earth and then continues the ionosphere with an undefined limit; according to some calculations, its limit oscillates between 20,000 and 100,000 km from the earth. From these characteristics, it is considered that the limit could be set at 300 to 500 km above the surface of the earth. However, this delimitation arises from an 28 29

Rodríguez (2002), p. 68. González et al. (2008), p. 780.

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approximate assumption of the limit of the ionosphere. Thus, it lacks the accuracy required by the delimitation, considering that there are different obligations, rights, and freedoms in the airspace and outer space that compromise the states in different ways. The effects of gravity: To guarantee the security of the states, the limit is established at the point at which the attraction of the Earth ceases. However, this demarcation can be debated; some authors claim that according to Newton’s theory of gravity, “The force of gravity is always attractive”,30 as Brian Koberlein states in his article Mutual Attraction.31 The maximum height of the flight of an aircraft: it is estimated that an aircraft can obtain air support at altitudes about 35 or 40 km, which would indicate that outer space is beyond that. This demarcation is founded on a scientific and technological limitation, not on an actual foundation that defines the border between airspace and outer space. The aerodynamic characteristics of flying artifacts: the boundary between airspace and outer space is set according to the height at which the aerodynamic lift yields to the centrifugal force, in the so-called “von Karman line,” an altitude considered between 275 thousand feet or 83 km. Currently, this is the most widely accepted theory by doctrine and official bodies. The minimum perigee of an orbiting satellite: based on the altitude at which a satellite can achieve space flight. Currently, the minimum perigee of a satellite in orbit is between 95 and 100 miles, or between 150 and 160 km. However, it is believed that it can descend to lower altitudes, which delegitimizes the limit established because of this foundation. Effective control: the boundary between airspace and outer space is set at an altitude at which states cannot exercise any effective control. The control that states can exercise concerning outer space is defined by scientific progress and investment in infrastructure and research development. Therefore, this variable cannot be considered when establishing the delimitation.

Other proposals include some that indicate that the upper limit of airspace and the lower limit of outer space is between 50 and 130 km. However, there is an 80-kilometer range of delimitation, which, in the future, may spurn debates between the states as the freedoms of space are exercised with greater effectiveness. It is evident that there is no agreement among countries on the limits of outer space and airspace. Enrique Gaviria points out that some theories maintain that the limit of airspace is where the atmosphere ends. Other theories indicate that the sovereignty of outer space is the limit of the earth’s gravitational field. This theory has been criticized because it is estimated that the earth’s attraction reaches an elevation of 260,000 km, where equilibrium is produced with solar attraction. 30

Koberlein (2014). Astrophysicist and Senior Lecturer of Physics and Astronomy at the Rochester Institute of Technology.

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There are also those who claim that this delimitation must be based on fixed heights dependent on technological advances. Having exposed the problem of the absence of legal delimitation between the airspace and outer space, we can see how derivative problems arise, such as the conflict between the freedoms of space and the claim of sovereignty, specifically concerning the freedoms of space in the geostationary orbit. In outer space, the State sovereignty is prohibited. Because of its importance, since 1967, the United Nations has considered the issue in the Subcommittee on Legal Matters without any clear criteria for delimitation. Some States insist on establishing a conventionally defined border. The other States do not see the need to establish a border since they consider that this could impede progress in the exploration and exploitation of space in favor of humanity.32 Therefore, space law recognizes that its use should be in the interest and benefit of all countries and internationally divides it into two sectors. The first refers to extraatmospheric activities (orbital, space, and cosmic); the second oversees regulating planetary activities. However, there are those who add an astral right in charge of social relations on other celestial bodies.33 This division points to the possible separation of outer space by areas of human interference34 and leads us to foster different boundaries within it (some with human jurisdiction and others, which are merely free). The limit of outer space is linked to the geostationary orbit (GO). Some countries claim their sovereignty based on this orbit’s passing through their territory. According to Gonzalez, this phenomenon occurs at “36,000 kilometers above the Earth’s Equator; the artificial satellites placed within it move in synchrony with the rotation of the earth, remaining in a relatively constant position concerning the underlying terrestrial points and covering approximately one-third of the earth’s surface”. International Law defines the geostationary orbit as the “circular orbit in the equatorial plane in which the satellite’s sidereal period of revolution is equal to the earth’s period of the rotation, and the direction of the satellite’s movement is the direction of the terrestrial rotation,” which allows satellites within this space a broad view of the earth. Being able to maintain constant communication between ground stations, obtaining meteorological data, and other numerous advantages have been scientifically exploited by the developed states, unleashing controversy concerning satellites located in the equatorial plane. Only a limited number of States have been able to use and explore the geostationary orbit, considering the patrimonial requirements involving scientific development, including infrastructure and equipment to access outer space. The use of this space has also generated questions regarding space debris, as inadequate levels of use can cause collisions. As a result, the United Nations has indicated the need to reduce the number of satellites in that orbit and

32

Quintana (2001). Pérez (2015), p. 186. 34 Becerra (2014). 33

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remove those whose life cycle has ended, limiting the number of satellites from 150 to 180 allowed simultaneously. There is also an oversaturation of satellites for telecommunications service, “depending on the service required; the frequency is assigned by the International Telecommunications Union (ITU). Thus, are not only the frequency bands saturated but also the optimal regions for each service”; this implies that the usufruct of outer space is limited. The fact that most of the communication satellites are located there, as well as the economic aspects that derive from them, which have been a subject of study since 1974, complement the interest in the GO. Despite the international regulation for the use of the orbit’s resources and the spectrum of frequencies created by the ITU, based on principles of equity and efficiency to establish parameters for the use of frequency bands for radio communications, the situation has not been resolved completely. Some states consider them insufficient arguments since they lack a precise definition of the boundary between air and outer space and continue to claim their sovereignty. Because a vertical limit between outer space and airspace has not been established, the regulation of the geostationary orbit has been determined only indirectly and quite ambiguously by international legal instruments, such as the principles governing the activities of the states in the exploration and use of outer space in 1967, the International Telecommunications Convention of 1982, Article 33, and the Declaration of Bogotá of 1976, before the General UN Assembly. Because the geostationary orbit is a limited area and “the Space Treaty of 1967 has not established the boundaries of outer space”,35 a conflict has arisen concerning the freedoms of space, specifically, the principle of first “a principle, undoubtedly, of natural law, where freedom is intended to operate in its purest offer”.36 This freedom is embodied in Article 1 of the 1967 Treaty, which establishes the following: Article I. The exploration and use of outer space, including the Moon and other celestial bodies, must be carried out for the benefit and interest of all countries, whatever their level of economic and scientific development, and they are incumbent upon all of humanity. Outer space, including the Moon and other celestial bodies, will be open for exploration and use to all States without any discrimination under conditions of equality and in conformity with international law, and there will be freedom of access to all regions of the celestial bodies.

Likewise, Article 2 of this treaty establishes that “outer space, including the Moon and other celestial bodies, cannot be subject to national appropriation by claim of sovereignty, use, occupation, or in any other way”. However, some states have expressed the intention of claiming sovereignty over the geostationary orbit. In 1976, through the Declaration of Bogotá, Colombia, Congo, Ecuador, Indonesia, Kenya, Uganda, Zaire (now the Democratic Republic of the Congo), and Brazil (Brazil was part of the debate but did not subscribe to the declaration) unilaterally established that “the geostationary orbit is considered a natural resource on which the equatorial States can exercise sovereignty on its segments”, pursuant to the “Roman 35 36

Marchán (1987), p. 44. Becerra (2014), p. 13.

ARGUMENTS AGAINST

1. Contravenes Space Treaty of 1967 (Freedoms and principle of first come). 2. In the customary practice of the states, there is a concept regarding the frontier of airspace and outer space located at the elevation of the minimum satellite perigee in the geostationary orbit comprised in the object of outer space. 3. Equatorial States cannot claim sovereignty on what they cannot exercise, less indication of ownership rights.

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1. Space Treaty does not delimit spatial boundary nor does it mention the geostationary orbit. 2. Vertical frontier has not been defined legally. 3. Principle of “f rist come f rist served” is unfair, considering the scientific development of some countries. 4. The trajectory of satellites can become permanently usufruct, as one replaces when its useful life has ended.

ARGUMENTO IN FAVOR

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Fig. 1 Arguments against and in favor of the 1976 Declaration of Bogotá. Source: Own elaboration based on Velázquez (2013), p. 598

property principle of Cuius est solum, eius est usque ad coelom, which means, he who owns the lands, owns up to the sky”. In his article, El derecho del espacio ultraterrestre en tiempos decisivos: ¿estatalidad, monopolización o universalidad?” (The Right to Outer Space in Decisive Times: Statehood, Monopolization or Universality?),37 Juan Carlos Velázquez Elizarrarás raises arguments denying the provisions of the 1976 Declaration of Bogotá and some of the arguments of the defense of the claim of sovereignty (see Fig. 1). Authors such as Doctor Jaime Marchán agree “claiming sovereignty over the segments of the geostationary satellite orbit is not an idea outside the legal framework that Public International Law has established”.38 However, at present, there are only vestiges of the claim of sovereignty recorded in the Declaration of Bogotá. These indications are evident in the case of Colombia. Initially, under the claim of sovereignty over the segment of the geostationary orbit established in Article 1777 of the 1971 Commercial Code, which establishes that part of the national territory is the vertical extension of the boundaries of said territory and its jurisdictional waters. Subsequently, in Article 101 of the Political Constitution of 1991, that includes, as part of the national territory, the segment of the geostationary orbit, which had not been bound by any of the space treaties not to commit internationally and renounce

37 38

Velázquez (2013), p. 598. Balseca Vaca (2015), pp. 29–30.

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the claim of sovereignty. However, currently, “Colombia has signed the first three space treaties (Treaty on Space Principles, Rescue Agreement, and Liability Convention) and ratified the registration of space objects in January 2014, as well as the agreement of the ITU”.39 Though, in practical terms, they do not have effects in the international concert, in front of the States that accede to the segment of geostationary orbit without any Colombian sovereignty restriction. To maintain the dialogue of the claim of sovereignty, the Colombian Constitutional Court, in the sentence C-278/04, established the following: The declaration of enforceability of the international instruments submitted for the revision of the Court requires the President to make the following interpretative declaration: the Colombian State reaffirms that the segment of the geostationary orbit that corresponds to it is part of the Colombian territory, as established in Articles 101 and 102 of the Constitution, and understands that no rule of these amendments is contrary to the rights claimed by the equatorial States in this regard, nor can it be interpreted against such rights. This interpretative statement that the President must make, when manifesting the consent to be bound internationally by the treaty, is intended to inform the international community that Colombia has not renounced sovereignty over the segment of its geostationary orbit, but that it does not prevent amendments to INTELSAT from being examined. This interpretation confirms the Colombian sovereignty foreseen in Articles 101 and 102 of the Charter —thanks to which the State is legitimized to claim the rights that it considers necessary before the international community, both autonomously and as a member of the group of equatorial countries— while taking into consideration the state of affairs in positive international law, which has begun to recognize in the ITU equitable access to the geostationary orbit, taking into account the geographical situation of the equatorial States.

However, this only refers to the pursuit of claims of preferential rights of access to the GO, congruently with what is written in the Constitution of Colombia. In the light of international law, it does not establish orbital positions, limitations, or access requests that must be issued by Colombia to other nations. Likewise, contending Colombia’s position regarding the sovereignty of the geostationary orbit provided by sentence C 779 of 2004 of the Constitutional Court, the Court deduces that international law does not offer a peaceful solution to the problem of sovereignty over the geostationary orbit. Thus, it can be said that there is no definitive legal solution in international law about how sovereignty over the geostationary orbit is exercised. Despite the opposing positions regarding the claim of sovereignty over the geostationary orbit and the need to fill the legal gap concerning the border that delimits outer space and airspace, the reality faced by countries that are not scientifically developed must be recognized. The principle of international cooperation40 must be implemented whenever it “plays a key role in supporting research in space science and technology and the creation of human resources”,41 thus, incentivizing

39

United Nations (2014). Llano (2016). 41 Negro (1997), p. 52. 40

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scientific space development to exercise freedom of exploration in favor of humanity.

5 Its Relevance Today Today’s space development presents challenges regarding the boundaries in space. We can see how the development of the New Space sector faces challenges for the application of the treaties concerning who is considered to be an astronaut (i.e., who has gone to outer space and who has not) since it would have implications for the application of the Agreement on the Rescue and Return of Astronauts and the Return of Objects Launched into Outer Space. Such as the return of equipment or shared responsibility for their rescue. Likewise, implications in the field of private law could be considered concerning the breach of contract if a trip to space in suborbital flights is agreed between private individuals and it is not specified in the contract where outer space is considered to begin. The Legal Subcommittee deals with delimitation at each annual session and requests the States to review the subject. Specifically, the agenda includes an item on matters relating to the definition and delimitation of outer space and the character and utilization of the geostationary orbit, including consideration of ways and means to ensure the rational and equitable use of the geostationary orbit without ignoring the role of the International Telecommunication Union. Furthermore, where States have been requested to submit relevant information on national laws and practices related to the definition and delimitation of outer space, questions on suborbital flights for scientific missions, or human beings’ transport. Some countries in 2019 expressed that the lack of a definition and delimitation of outer space created uncertainty regarding the applicability of space law and air law, not only at the national level but also at the international level. Finally, we can observe that in the future, the topic will be the subject of the ongoing debate concerning the current and prospects of the legal regime of outer space framed within the seven thematic priorities in the context of UNISPACE+50, which will mark the strengthening of space law in the coming years.

6 Conclusions Finally, although some countries have questioned the claim of sovereignty and have established that every state has the right to exercise the freedoms of use and exploration in space, there are still lingering questions. What is the range of human interference in space? Considering that by its nature, “space is mostly a complement of intangibility, for practical legal effects, it is an empty area like the

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air.”42 Therefore, considering its immensity and that its nature differs from everything that is known, were the rationales inscribed in the treaties of space founded on what we know and not on the intangibility that space implies? Thus, should we rethink its frontiers? Thus far, these questions have not been answered, which makes us reconsider space law and reflect, first on how the delimitation of borders determines its scope of application, and provides other elements necessary for the construction and implementation of the rights. In other words, it can be deduced that the lack of delimitation of outer space is one of the leading causes of application and development gaps in this area of the law.

References Balseca, A. 2015. Los Derechos Espaciales del Ecuador en el Marco de los Tratados de Uso del Espacio Ultraterrestre (tesis de pregrado). Pontificia Universidad Católica del Ecuador. Bauza, Á. 1995. Principio de Derecho Aeronáutico. Montevideo: FDCS. Becerra, J. 2014. El principio de libertad en el derecho espacial. Bogotá: Universidad Católica de Colombia. Cortes, C., and M. Kure. 2013. Análisis jurídico del problema de la definición y delimitación del espacio ultraterrestre (tesis de pregrado). Universidad de los Andes. Retrieved from: https:// derecho.uniandes.edu.co/images/stories/programas_academicos/Espacio_Ultraterrestre/t_ cortes_kure.pdf. Diederiks-Verschoor, V. 2008. An Introduction to Space Law, 3rd Revised ed. Netherlands: Kluwer Law International. Gaggero, M. n.d. El Espacio Ultraterrestre y su régimen jurídico. Grupo Simbólico de Transporte Aéreo 346. Retrieved from: http://www.grupo346.com.uy/boletin/comunes/El_espacio_ ultraterrestre_regimen_juridico.pdf. Gaviria, E. 2005. Derecho Internacional Público. (Sexta Edición). Bogotá D.C.: Editorial Temis. González, J., L. Sánchez, and A. Sáenz. 2008. Curso de Derecho Internacional Público (Cuarta Edición). Editorial Aranzadi. Guerrero, M. 2012. Espacio aéreo y soberanía. In Cuestiones actuales del Derecho Aéreo. M. Guerrero (Coord.) Madrid: Marcial Pons Ediciones Jurídicas y Sociales Koberlein, B. 2014. Mutual Attraction. Brian Koberlein. Retrieved from: https://briankoberlein. com/2014/03/27/mutual-attraction-2/. Llano, J. 2016. Pluralismo jurídico, diversidad cultural, identidades, globalización y multiculturalismo: perspectiva desde la ciencia jurídica. Novum Jus 10 (1). López, N. 2008. Nuevo derecho internacional público. Teoría, Doctrina, Práctica e Instituciones. México: Editorial Porrúa. Marchán, J. 1987. Derecho Internacional del Espacio, teoría y política. Quito: Ediciones del Banco Central del Ecuador. Monroy, M. 2011. Derecho Internacional Público (Sexta Edición). Editorial Temis, Bogotá D.C. Negro, S. 1997. Cooperación Espacial Comunitaria. La regulación jurídica del espacio: exploración y explotación. Buenos Aires: Ediciones Ciudad Argentina. Pardo, M. 2016. El Consenso como Fundamento del Derecho del Espacio Ultraterrestre (tesis de pregrado). Pontificia Universidad Javeriana.

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Pérez, L. 2015. Derecho internacional público. Buenos Aires: Valleta ediciones. Quintana, J. 2001. Derecho Internacional Público Contemporáneo. Medellín: Editorial Ibañez. Ramón, F. 2017. Derecho Espacial Teoría y Prácticas. Valencia: Tirant lo Blanch. Rodríguez, A. 2002. Introducción al Derecho Aeronáutico. Santa Fe: El Cid Editor. United Nations. 1994. Foreword by the Secretary-General. New York: United Nations. ———. 2014. Executive Summary of the Partial Submission of the Government of the Kingdom of Denmark together with the Government of Greenland to the Commission on the Limits of the Continental Shelf, The Northern Continental Shelf of Greenland. United Nations, p. 18. Retrieved from: http://www.un.org/depts/los/clcs_new/submissions_files/dnk76_14/dnk2014_ es.pdf Velázquez, J. 2013. El derecho del espacio ultraterrestre en tiempos decisivos: ¿estatalidad, monopolización o universalidad?. Anuario Mexicano de Derecho Internacional, Vol. XIII.

Jairo Becerra Doctor in Law and Political Science from the University of Barcelona, Spain. Director of the Socio-legal Research Center—CISJUC, Faculty of Law. Member of the Research Group in Public Law and ICT of the Universidad Católica de Colombia. Lawyer, Consultant, researcher, and professor of Public Policies and Law in Information and Communication Technologies, International Law, and Aeronautical and Space Law. Member of the International Institute of Space Law—IISL and the Relaca Espacio. Email: [email protected] Paula Pérez Lawyer from Universidad Católica de Colombia. Master in Constitutional Law from Universitat de València, Spain. She represented the Public Law and ICT research group of the Universidad Católica de Colombia as a Researcher of the Administrative Department of Science, Technology, and Innovation of Colombia (Colciencias). Currently, she is a Research Advisor at the college of Human Rights and International Humanitarian Law of the National Army of Colombia. Email: [email protected] Laura Duarte Member of the research hotbed in Public Law and ICT at Universidad Católica de Colombia, Faculty of Law. Research Assistant in the Public Law and ICT group. Email: [email protected]

Cyberspace: A New Frontier Eduardo Andrés Perafán Del Campo, Sebastián Polo Alvis, Marco Emilio Sánchez Acevedo, and Alejandro León Quiroga

Abstract It is important to show that frontiers are not just borders or watercourses; there are also other kinds of frontiers with equal importance in this century. One of those frontiers is cyberspace. This kind of frontier has distinctive characteristics and a particular relevance because of the extensive interaction of people and his difficult demarcation. The ideas presented so far will be developed around two major themes in this chapter. The first will gather the discussions on the mutation of sovereignty by -states in a scenario of constant transformation, cyberspace. The second will develop two fundamental elements through which states exercise their sovereignty, cybersecurity, and cyber defense. These two elements will be addressed from the Colombian case.

1 Introduction The many changes that have transformed global human interactions, enabled by the progressive and accelerated modernization of the media, have produced new challenges arising from these technological advances in the information age concerning the surveillance and control of citizens’ freedom. The consolidation of coverage This chapter is the result of the research projects entitled State, Law and Society and Law and Big Data developed with the group Public Law and ICT, linked to the Socio-Legal Research Center (CISJUC) at the Faculty of Law of Universidad Católica de Colombia, in Bogotá and result of research activities of Migrations Research Hotbed, International Political Studies Research Group at Universidad del Rosario, in Bogotá. This work is the second, expanded, and updated version of the document in Spanish: “Estado y soberanía en el Ciberespacio” (State and sovereignty in Cyberspace). The first version, only available in spanish, can be consulted in: https://revistas.usantotomas.edu.co/index.php/viei/article/view/6480. E. A. P. Del Campo (*) · M. E. Sánchez Acevedo Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia e-mail: [email protected]; [email protected]; [email protected] S. Polo Alvis · A. León Quiroga Universidad del Rosario, Bogotá, Colombia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 D. Endrizzi et al. (eds.), Frontiers – Law, Theory and Cases, https://doi.org/10.1007/978-3-031-13607-8_5

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issues, navigation speed, access to new technological navigation devices, and the use of the internet1 to obtain information and establish all kinds of interactions between people that go beyond mere human contact. These, among other elements, have completely revitalized human productive activities, have generated new questions about the exercise of people’s freedom and the role that institutions must play in the face of these challenges. The issue lies not only in creating a new dimension of action related to matters of legislation, protection, and surveillance but also a challenge for the specialization of functions that allow the State’s appropriate action. Therefore, understanding the possible link between mass use and access to the internet and the responsibilities of the State to exercise adequate control of this process is essential. The new challenges establish a causal relationship that generates a transformation of the State, requiring new functions for protecting citizens and new demands that may contribute to the mutation of the perception of state sovereignty. The relevance that the internet has acquired in our daily life is evident. From most media2 and international information and communication systems, the global financial system, to the protocols for the activation of nuclear missiles, all have the internet as the basis for their operation. Moreover, this tool has evolved to create a new virtual space of interaction, which blurs territorial borders and integrates those with access to the digital world through a complex network of information transmission.3 This new frontier is cyberspace. This virtual space of interaction has given way to the improvement of communication between a great diversity of actors at an international level, who exchange information at astonishing speed concerning an endless variety of issues. In cyberspace, information is exchanged about matters that, in principle, we could consider entertainment revolving around pop culture, cinema, television, and music. However, other economic, political, and social issues are also developed, and these demand attention to this diversity of actors in cyberspace. The convergence of economic, political, and social content and the conditions of this network have made the internet an essential platform for political activism. For instance, the internet was a catalyst for the Arab Spring4 and international militancy in support of the liberation of Palestine and Catalonia, among other cases. The internet enables the production of content that can impact the development of political life in the different sectors and instances of the State. The transnational nature of the internet, the convergence of a large number of international actors in cyberspace, the ease and apparent freedom to produce different content on the web (including sensitive content), the impact of such content on the population, the constant technological evolution, and the challenges that an interconnected world poses, are some aspects around which States must reflect in

1

Valderrama (2018). Castro (2016). 3 Raboy and Mansell (2011). 4 Soengas-Pérez (2013), pp. 147–155. 2

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the context of cyberspace. Two of these elements are cybersecurity and cyber defense. Cyberspace is known as the artificial space created by the set of information and telecommunications systems that use ICT (Information and Communication Technology), computer networks. Further than the internet, the systems and equipment, hardware and software, and even the users themselves, this is a new space, with its physical laws that man for his service has created.5 In other words, cyberspace is the dimension generated during the interconnection and interoperability of networks, systems, equipment, and personnel related to computer systems, whichever they may be, and the telecommunications that link them.6 Now, to understand cybersecurity, we should begin with the security of information, which according to Kosutic: “is defined as the preservation of confidentiality, integrity, and availability of information, where confidentiality is understood as the fact that it is not made available to others without authorization, integrity is the property of maintaining its accuracy and completeness, and availability is the property of it being accessible and usable at the request of an authorized entity”.7 Cybersecurity, then, is the security of information in cyberspace. In other words, when dealing with the protection of information contained on hardware, networks, software, technological infrastructure, or services, we are in the field of computer security or cybersecurity.8

2 Sovereignty, State, Technology, and Globalization 2.1

State and Sovereignty

Let us ask ourselves to what extent, in a space with diffuse borders, the exercise of citizen’s freedom becomes counterproductive to the interests and responsibilities of the State? To answer, we need to understand the ontological limits and elements of state sovereignty. And before addressing this issue, we need to state that sovereignty, as an essential element for preserving the security of states; and interconnectivity, as a transforming element of societies and individuals within the framework of an accelerated globalization process, are concepts that tend to be opposed. The first seeks to establish action limits that contribute to implementing a particular security structure and order within the established authority. In contrast, the second is a process that seeks to transcend the traditional limits previously mentioned. Political Science provides ample literature regarding the concept of State. If we inspect some of the classical and modern definitions of a state, we can find some 5

Spanish Institute of Strategic Studies, Ministry of Defense (2012). Consejo Argentino para las Relaciones Internacionales (2013). 7 Kosutic (2012). 8 Áudea (2016). 6

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common characteristics. Let us consider the works of Machiavelli,9 Hobbes,10 Weber,11 Kelsen,12 and Bobbio.13 The State is presented as a sovereign administrative, legal entity located within a territory, which has the purpose of guaranteeing access to a series of contractual goods for its population. Perhaps the most critical assets provided by the State are security, the administration of justice, and a package of fundamental rights consigned in most national constitutions. Also, from sociology, it should be noted that the manner in which the State provides these goods responds to moral frames of reference that, historically, have been built by the population located within the State.14 In short, State action responds to a social construction that starts from the imaginations of the various actors that make up the State.15 In this sense, each State behaves in a particular way vis-à-vis its population. Similarly, the State reaffirms its sovereignty responding to socially constructed criteria. According to Burdeau, “the essential sign of sovereignty is precisely the control of the constituent power”.16 Thus, from a liberal perspective, before creating a new political and legal order of the States, establishing a relation of authority will be the terminal factor in developing the conception of sovereignty under the precepts of this paradigm. Likewise, for Burdeau, sovereignty is a “characteristic, attribution or essential faculty of the State Power that consists of giving definite orders, of making oneself obeyed in the internal order of the state, and of affirming independence from other states”.17 Based on this definition, it is possible to evince that sovereignty is a constituent element of the internal order and the constitutional legality of the State. Because of the diverse political, economic, and ideological transformations on the theories of the State manifested after the fall of the Soviet Union at the end of the Cold War,18 an interconnectivity process began that would transcend the political orders of the time. Moreover, with the large-scale advancement of technologies, means of communication, and transportation, which co-occurred to the opening and expansion of free trade, international cooperation, and political integration, the State went into a process of rethinking its functions with the presence of new challenges and problems driven by the advent of new junctures, as well as latent threats. Based on the developments mentioned above, there was a critical transformation process regarding the perception and nature of one of the transversal factors of society and the modern liberal State, the individual. According to Bauman, the

9

Maquiavelo (2010). Hobbes (2009). 11 Weber (1964). 12 Kelsen (1949). 13 Aznar (2015). 14 Oppenheimer (2014). 15 Wendt (2013). 16 Peralta (1999), p. 314. 17 Burdeau (1973), p. 248. 18 Laïdi (1998). 10

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acceleration of human interactions directly affects a process of individualization in society, which is embodied as the “practical and realistic ability to self-assert, to the detriment of a collective process of citizens”.19 Bauman further states: (. . .) freeing people can make them indifferent. De Tocqueville suggested that the individual is the number one enemy of the citizen. The ‘citizen’ is a person inclined to procure selfwelfare through the city’s welfare. At the same time, the individual leans towards passivity, skepticism, and distrust of the ‘common cause,’ the ‘common good,’ the ‘good society,’ or the ‘just society.’ What does the ‘common good’ mean but to allow everyone to satisfy himself?20

The State has manifested itself in the process of organic and functional transformation around the processes of individualization and uprooting and the self-referential process of the individual within a civil society project, which has been manifest in specific activities such as economic, locomotion, and information freedom. However, the State should have had to rethink itself in the face of the advent of “liquid modernity”,21 which can be exemplified in the characteristics that, up to now, have been attributed to cyberspace in this chapter. It was economically dismantling Keynesian models that led to the consolidation of a neoliberal State model, aimed at the implementation of a regulatory model of the State around the economic activities of individuals. However, this also affected the perception of the State, presenting it as an actor in a dilemma regarding its functional vocation. Should the State be a guarantor of individual liberties or correspond to an essential end of its existence by defending the sovereignty and the common good (guarantee the basic package of rights)? This dilemma also depends on a progressive condition of political uncertainty. There are no guiding principles to provide a clear and definite concept of the State’s roles within a globalized world. According to Pardo, these conditions arise from the following situation: (. . .) Science manifested complete confidence supported by its spectacular discoveries, while law and the authorities encountered a subject for which they lacked the necessary knowledge to decide or regulate. To do so, they appealed to Science, which provided them with accurate and sure references. Now, when appealing to Science, in cases of uncertainty, it is expected that it does not offer any certainty or, more often, that is unable to offer a sound opinion for another twenty or thirty years when the necessary data, analysis, studies, reports, and experiences will be available to have proper and sure knowledge concerning the matter.22

Based on the above, it is possible to sustain that these processes of interconnectivity, developing within the framework of globalization, generate a scenario of political uncertainty that affects a limited action of states because of the consequent 19

Bauman (2015), p. 40. Ibid., 41. 21 Liquid modernity is conceived, within the postulates of Zygmunt Bauman, as a process of acceleration and ethereal transformation of the social relations and power existing between subjects, technology, and institutions, which takes place in a political and ideological context of postmodernity. 22 Darnaculleta (2015), p. 36. 20

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indecision occurring in the face of the inconclusiveness of the debates on the vocation and purpose of the State. There could even be a possible loss of state power because of the possible limited sovereign action in cyberspace.

2.2

Global Internet Governance: Limited Sovereignty?

These potential limits on State actions are be evidenced as other international actors become empowered and their decision making power regarding the internet increases. When we consider that civil society and private enterprise are the protagonists of the Global Media and Communication Policy, we could think that the exercise of sovereignty in cyberspace surpasses the state domain, a scenario in which the discussion on the elements inherent to the concept of sovereignty (territory, security, and legality) transcends state exclusivity and the global governance of the internet is created. The Commission on Global Governance defined the global governance of the internet in the following terms: The sum of the many ways individuals and institutions, public and private, manage their everyday affairs. It is a continuing process through which conflicting or diverse interests may be accommodated, and cooperative action may be taken. It includes formal institutions and regimes empowered to enforce compliance, as well as informal arrangements that people and institutions either have agreed to or perceive to be in their interest.23

In this order of ideas, we can define the global governance of the internet as the process of concertation and confrontation of interests of different international actors, through which the internet is managed worldwide is structured. Therefore, the primary evidence of how the global governance of the internet is developed lies in the different discussions regarding international agreements in this area and the guidelines that internationally regulate the development of the network.24 Although this governance involves many actors that are not exclusively stateowned, particularly civil society and the private sector,25 the states’ protagonism has been decisive in the development of the Global Media and Communication Policy. As Chenou26 maintains, state representatives have been the group with the most significant participation concerning other interest groups in the discussion forums on the global governance of the internet. Despite being the most representative group of interest in said governance, the states do not necessarily have convergent positions regarding the management of the internet. On the contrary, given each State’s values and the different stances from which each perceives how it must act concerning its

23

Commission on Global Governance (1995). Internet Society (2016) 25 Raboy and Mansell (2011). 26 Chenou (2014). 24

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substantive functions in this area, the states defend different models for Internet governance in international scenarios. Clear examples of the differences in state models of governance concerning the internet are the opposing positions defended by the United States and China. Chenou points out that the main divergences between these two powers are computer security and freedom of expression. While the United States proclaims an open Internet policy based on the private self-regulation of content, China defends a more restrictive position regarding the contents available on the network and the access of private data by the State. These two general models illustrate two-State logics that is based on different cultural values. The United States is the standard-bearer of the full development of individual freedoms and democratic values worldwide. At the same time, China is characterized by social cohesion and the integration of its population within a Chinese normative project in which the population must fervently follow the guidelines of the State so that the latter can position itself as a powerful actor in the international system.27 Each of these models has sympathizers and detractors in the discussion scenarios of global internet governance. However, in general terms, the statements by Chenou28 show us that states have voted in these international scenarios in two blocks, one in favor of a broad approach to the development of the internet and another that supports a somewhat more restrictive position. This set of factors in which the State reaffirms its power in terms of its relationship with cyberspace has been evidenced in the global governance of the internet. In this sense, the idea of a possible loss of power by states in cyberspace must be qualified and, on the contrary, we can observe that States have a wide margin of action in the global governance of them concerning those elements that have traditionally been related to the concept of sovereignty.

2.3

New Sovereignty: Surveillance and Control in Cyberspace

It is appropriate to mention the robust approach by Hans Kelsen to the concept of sovereignty and its fundamental purpose in the State. In this regard, he states, “the difficulties begin when the reflection goes beyond the state legal order itself, that is, beyond the domain that is ordinarily considered as a state legal order, finding itself before objects that aspire to the qualification of ‘Law’ with the same object as the legal order of the State, without them being considered as consecutive parts of it”.29 Therefore, within the traditional conceptions of sovereignty, as an element that depends on the exercise of the State for the attainment of its interests and the

27

Callahan (2015), pp. 216–229. Chenou (2014). 29 Kelsen (1949). 28

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preservation of its security, it is necessary to understand the possible transformations and responses that have been given to this problem. Although a theoretical clarity on a deontological materialization of the responsibilities and capacities of the State has not been developed to provide an accurate response to this issue, the State has tended to mutate simultaneously with the appearance of these new challenges to legality. With the advent of the neoliberal state models, which have focused their functions on a regulatory role in economic activities, the traditional organic structure of the State has progressively been overcome. The States’ growing needs to regulate the various activities of citizens has proliferated the delegation of these endeavors to decentralized entities that promote specific regulatory actions of a specific issue in recent years. These commissions have driven to reconsider these entities’ exercise and nature and have even opened a debate concerning the importance of the three-way division model of public power. Although this is a debate of great magnitude and does not correspond to the present writing, it must be mentioned to highlight that the development of the new transformations of the State before the new operative needs for the surveillance and the protection of the citizenship is a subject that deserves to be mentioned in this writing. From the previous elements, the access and use of the internet to obtain information, communication, and interaction in a wide range of situations and specific issues, can be a window of opportunity that determines the user’s individuality. The emergence of these resources and their consolidation in daily life provided the first phase of complete freedom guaranteed by the access to significant sources of information, various forms of communication, and interaction and action within the medium, reaching the limit of what is acceptable and legal in society. It is there that the deep web emerges as a means that allows the user access to a broad spectrum of information and services that are mainly illegal, from the sale of bootlegged items protected by author rights to the access to privileged information, as well as the sale of drugs and weapons, and services of a perverse nature such as human experimentation, child pornography, and a wide range of visuals featuring physical and sexual violence. Despite the destructive potential that these crimes may cause, the State remains unable to prevent, neutralize, and mitigate these conducts that are, at the same time, conditioned by the medium. Although there are mechanisms to detect the access and use of these illegal means, through the triangulation of the computer’s IP address, the tracking of virtual banking movements, among other tools that have been created and implemented to combat these crimes, there is still a relative gap between the accelerated and progressive advance of new modus operandi from the virtual plane and the forms of prosecution and exercise of the law in the physical plane. According to Valencia Tello, “new technologies allow access to global spaces that connect different territories, groups, and individuals, without states having the capacity to control or regulate what happens within their borders”.30

30

Valencia (2015), p. 146.

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Although various perspectives, writings, and essays on this subject have been conceived and written given the theoretical and political uncertainty for the organic and facultative evolution of the State for the timely response to the mentioned problem, the thematic tendencies for the solution of this problem have been addressed in two ways. The first approach, aimed at responding to this dilemma, addresses the gaps in the capabilities and powers of the State in the face of presumed unlimited freedom of users by identifying and characterizing these elements as a problem of all states. Identifying the nature of this condition, which prohibits the proliferation of endless means to commit crimes that threaten the possible safety of citizens and the State, tends to be related to behavior associated with Transnational Organized Crime. Within this first response is the consolidation of binding legal elements that create obligations corresponding to institutional responsibility to prevent and mitigate these means. Within this form of action is creating international treaties and agreements to generate joint actions against these potential scourges. Given the transnational nature of cybernetic interaction, these actions may warrant international cooperation that responds in a cohesive and coordinated manner. The implementation of these commitments occurs through the establishment of an international regime, which is defined, according to the principles of Stephen Krasner, as “a series of implicit and explicit principles, norms, rules, and decision-making procedures, in which the expectations of the actors converge on a given theme of international relations”,31 which seeks its application as an obligation of the states under the principle of pacta sunt servanda. According to Valencia Tello, “the technological menaces that do not respect the boundaries of states, force them to collaborate increasingly and cooperate amongst themselves to guarantee a minimum of effectiveness in the solution of the global issues that affect the citizens of different states, in many ways”.32 However, it is not enough to merely mention that the mechanisms of international cooperation to detect potential cybercrimes and the binding elements within the framework of international law are still relatively incipient. It is also necessary to highlight that cybercrime can be potentially linked to other forms of ordinary and transnational illicit activities, such as kidnapping, extortion, torture, murder, fraud, theft, as well as transnational organized crime, trafficking in persons, illicit trafficking of migrants, among other matters of pressing importance to the security of citizens and states. The second approach, unlike the first, seeks the development of a strategy at a micro-level against this problem. Although this mechanism tends to be articulated to the elements that allow global cooperation around these problems, the development of this strategy is based on an exercise of systematic surveillance of potential offenders and wrongdoers. This strategy is based on Foucault’s principle of panoptic surveillance, which is based on a system that “is exercised through individual and continuous monitoring, using punishment control and reward as a correction; that is,

31 32

Krasner (1983), p. 2. Valencia (2015), p. 146.

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as a method of training and transformation of individuals according to certain forms”,33 based on three guiding elements surveillance, control, and correction. Although this is a surveillance model created for the materialization of a process of social orthopedics aimed at the rehabilitation of individuals who have violated law and order, it is possible to implement it as a means of anticipatory control of the possible commission of a crime, which could be evidenced in the State’s control of the Internet user’s experience. Besides surveillance, this method also seeks to establish a culture of denunciation and decentralized control in which the users are participants. This strategy hinges on ethical and moral principles to create a decentralized citizen surveillance system in cyberspace to combat the proliferation of undesirable content, such as snuff videos and pornographic and violent materials in social networks. Its implementation takes as a critical element the control of content and the limit to the access of information as mechanisms to draw a line between the legal and the illegal. However, a significant limitation of this form of control is the presumption of crime as a fait accompli, which not only compromises the principle of bona fides as a necessary guarantee of the right to due process but can also be an element that conditions the legitimacy of the authority for the perpetration of illegal acts for the fulfillment of its functions. Also, this surveillance system can impinge on a latent threat to the principle of habeas data as a safeguarding element of users’ personal information, as well as individual condition freedom under the interests and elements that define the security prospects of the states.

2.4

Contracts, Cryptocurrencies, and Taxes: Beyond the Traditional Concept of Sovereignty in the Era of Digital Globalization

From a legal standpoint, sovereignty has been understood as one of the constituent elements of states34 and its distinguishing feature vis-à-vis other subjects of international law, as international organizations.35 Under this conception, sovereignty implies independence as a legal person in the relations of a state with other subjects of international law and the exercise of the supreme authority in its domestic affairs, employing its governmental institutions over its nationals and within the boundaries of its territory.36 As pointed out in 1928 by Max Huber in the Island of Palmas award, the traditional conception of sovereignty in public international law implies an exercise of state functions in a given territory, as it “determines the boundaries of polities and 33

Foucault and Lynch (1980). Shaw (2017), p. 157. 35 Crawford (2013), p. 118. 36 Shaw (2017), p. 361. 34

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their jurisdiction over different aspects of economic and social life both within and between states”.37 Sovereignty then implies the monopoly of governing authority in a physical space over various affairs, such as “determining who may enter the territory, who belongs to the state as its nationals, what the law of the state shall be on any matter and how (or when) it is to be enforced, what taxes shall be paid and on what the proceeds shall be spent, what armaments the state shall have and how they will be deployed, and so on across the spectrum of possible matters for the government”.38 Government authority is an exercise of jurisdiction, which is understood as both the capacity of determining applicable laws39 and enforcing them.40 Sovereignty is then materialized by exercising the legislative, executive, and judicial competencies of state organs regarding a given territory whose boundaries are set forth by international law. Consequently, one of the most critical roles of public international Law vis-à-vis the relations between its subjects is the attribution and distribution of jurisdiction, a feature of relevance when addressing factors that transcend the territorial limits of a state, as regarding its application over their nationals regardless of their location and the effects doctrine, first developed under United States antitrust laws.41 Even though sovereignty is traditionally conceived as the exercise of the supreme authority in a physical space, it cannot be deemed absolute power. State’s participation in international scenarios can clearly show that understanding sovereignty as unlimited within its territory is misguided. Public international law has set different boundaries to the exercise of State competencies: States willingly limit their sovereignty by executing certain types of bilateral treaties and surrender sovereign powers to international organizations, as in monetary unions or specific dispute settlement mechanisms. Also, traditional sovereignty may be deemed eroded due to factual circumstances that escape state authority, such as conflicts of jurisdiction arising from globalization and practical difficulties in controlling cyberspace actions. These factors will influence how we comprehend the role of the State in certain activities commonly deemed as an expression of sovereign powers, namely the regulation of legal relations as contracts, monetary sovereignty as the adoption of legal tender, and taxation of crypto-assets. We can start from the latter for addressing these challenges to the cornerstone of the concept of State. In the words of Professor Rosenbloom, “no area of the law is closer to the subject of sovereignty than taxation”.42 Throughout history, political structures, as in

37

Pistor (2017), p. 492. Crawford (2013), p. 121. 39 “The term ‘jurisdiction’ stems from the Latin ius dicere, which literally translates as ‘speaking the law’. In its widest sense, jurisdiction therefore means an entity’s entitlement to authoritatively say ‘what the law is’” Simma and Müller (2013), p. 131. 40 Simma and Müller (2013), p. 135. 41 Ibid., pp. 140–141. 42 Rosenbloom (1994), p. 267. 38

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hydraulic despotism from first civilizations, have depended on and enforced tax collection as one of the inherent competencies of the holder of power. As Harari describes it, “the first texts of history contain no philosophical insights, no poetry, legends, laws, or even royal triumphs. They are humdrum economic documents, recording the payment of taxes, the accumulation of debts, and property ownership”.43 Several centuries afterward, states, as the dominant contemporary political structures, still hang to the idea of their monopoly in levying taxes on the economic facts they deem relevant, for instance, over their nationals’ income regardless of their origin or country of residence. As it can arise as a logical consequence of the interaction of more than 190 sovereigns in the so-called post-Westphalian scenario of international relations, absolute tax sovereignty is just a myth. Instead, sovereignty is a “defeasible but protected status in the international system, carrying with it the presumption of full governmental authority over a polity and territory”.44 It is an expression of independence, and it is closely related to the globally recognized principle of non-intervention on the domestic affairs of other states. For this, “while in theory countries can determine their internal tax policies, in reality, these same internal policies have an impact far beyond the country’s borders and are a legitimate concern of other sovereign nations”.45 Globalization and information technologies are at the core of this redefinition of state interaction. Cyberspace has deepened the breakage of state boundaries for international commerce, as it allows immediate communication and transactions with virtually anyone with internet access in every country in the world. Of course, neither globalization nor its deepening due to information technologies is precisely a new phenomenon, as digital interaction makes part of our daily life. However, this continuous contact with different countries gives rise to severe questionings on the actual extent of states’ capability to exercise competencies traditionally perceived under its exclusive authority. In practice, this means that states are not autonomous for defining their tax policies on account of the potential overlapping of jurisdiction with other equally sovereign subjects of international law. Even when governmental bodies enact taxes on economic facts falling outside of their territory, the issue of enforcement may turn those rules into dead letters or in the source of an international dispute. Due to globalization, “the monopoly that states have over coercive powers, as well as their ability to express the collective will of their constituents, is undermined. The more fragmented sovereignty is, the less it can enforce its policies”.46 As it may seem paradoxical at first, the exercise of sovereignty requires its limitation through the allocation of jurisdiction in this regard among the other participants of the international community. That is why Charles E. McLure, as

43

Harari (2014), p. 138. Crawford, Op. Cit., p. 132. 45 Li (2004), p. 147. 46 Dagan (2017), p. 42. 44

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quoted by Professor Li, considers that “complete sovereignty is impossible, except perhaps for a country that is isolated from external influences,47 which, despite ensuring a higher degree of effective control, would prevent it from participating in the revenues arising from international trade and globalized economies. This globalized scenario has turned into a space of competition among states. As a result, tax policies are not set under the sovereign desire of one but for luring residents, investors, and revenues.48 This erosion of the traditional notion of sovereignty, as states are unable to determine their tax policies independently from others,49 has led to a need for international action using standardization, harmonization, and coordination among governments and legal systems.50 Standardization and harmonization of tax rules have been a constant debate in international forums like the Organization for Economic Co-operation and Development (OECD), whose Base Erosion and Profit Shifting (BEPS) Initiative is aimed to provide states with tools for reducing tax evasion and ensuring their capability of taxing their sources of revenue. This is clear evidence of the increasing of their will to “abandon their laissez-faire attitude regarding a State’s prerogative to independently structure their tax systems”51 and to resort to the consensus fostered within international organizations or other sovereigns, usually the most relevant ones in international trade. Cooperation comes in hand with standardization and harmonization strategies and as an expression of the fundamental role of international law as a system for proper attribution and distribution of jurisdiction on affairs under state sovereignty. Under this approach, states resort to international law rules, as the exchange of information and double taxation treaties, to set the boundaries of their competencies and ensure the effective exercise of public authority in levying and collecting taxes. This is consistent with a contemporary understanding of sovereignty as interdependence among states, instead of the absolute authority and effective control on domestic affairs as conceived centuries ago by Hobbes and Bodin.52 International integration may also be a tool for addressing the challenges derived from globalization regarding collecting taxes through surrendering tax jurisdiction to a supranational entity as a regional international organization. However, this degree of waiver to sovereignty has not been present in the different examples of regional integration is not likely to happen nowadays as it is a pawer that states prefer to preserve for themselves,53 unlike monetary sovereignty as with the Euro and the CFA Franc.

47

Li (2004), p. 144. Dagan (2017), p. 37. 49 Ibid. 50 Calderón-Gómez (2020), pp. 223–224. 51 Ibid. 52 Philpott (2001). p 297. 53 Li, Op. Cit., p. 143. 48

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Both tax and monetary sovereignty may be deemed eroded, based on the traditional criterion of effectiveness,54 due to the impossibility or arduousness of effectively exercising control on activities taking place in cyberspace, currently being crypto-assets in the center of this debate. However, before referring to the particularities of crypto-assets under the scope of these types of state jurisdiction, some considerations on monetary sovereignty are worthwhile. As stated in the Serbian Loans case (1929) of the Permanent Court of International Justice, monetary sovereignty, or the entitlement of a State to regulate its currency, is conceived as a generally accepted principle regarding sovereign powers. This right to regulate currency implies State control on monetary policy, which entails the management of “the price of money and its aggregate supply in an economy.55”Moreover, monetary sovereignty implies authority on money’s circulation and legal value in a given territory. Under this traditional conception allows states to determine “the currency in which the creditor must accept the settlement of the money debt”,56 which is called legal tender. This scope of sovereign authority in monetary affairs is widely recognized in the international community. Thus, for instance, the Colombian Constitution sets forth in article 150(13) that Congress has the power of “determining legal tender, its convertibility and the breadth and clearance power, and fixing the system of weights and measures”, and in article 371 that one of the essential functions of the Central Bank is the issue of legal tender. However, despite this idea of sovereign powers in monetary affairs, the truth is that “the contemporary exercise of the various sovereign powers in the realm of money is subject to both legal and economic constraints”.57 Money management policies may have an impact outside of the boundaries of the State implementing them, for which international law may be used for addressing such issues,58 as the United States sought it regarding the possibility of initiating the dispute resolution mechanism of the World Trade Organization regarding the Chinese exchange rate of the Renminbi.59 In addition, the creation of currency unions entails a waiver of monetary powers, which, in the case of the Eurozone, is on behalf of a supranational entity. This has been seen as a “shift of sovereignty in monetary affairs away from national central banks and even from governments”.60 Nevertheless, these legal constraints, as those derived from international custom or treaties as the IMF Agreement, are minor vis-à-vis the ones arising from “economic globalization and the increasing integration of financial markets”.61 For 54

Shaw (2017) p. 379. Hertogen (2010), p. 246. 56 Meyer-Harport (2014), p. 673. 57 Zimmermann (2013), p. 803. 58 Hertogen (2010) p. 259. 59 Pettis (2011), pp. 281–296. 60 Kurzmann (1997), p. 149. 61 Zimmermann (2013), p. 803. 55

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instance, monetary sovereignty may lose its relevance in the political agenda when facing a loss on the value of a given currency, as in the case of de facto or officially dollarized economies as Ecuador, El Salvador, Panamá, East Timor, and Cambodia.62 When adopting a currency substitution, a State is waiving control on the circulation and regulation of money to attain financial stability and face issues such as hyperinflation. Also, as Professor Zimmermann explains it, “the loss of factual state control is even more impressive concerning money creation. Notes and coins, i.e., the currency in circulation, account for no more than approximately 10% of the money supply in developed countries, with various forms of scriptural money (notably euro currencies) and rapidly spreading innovative financial instruments (notably credit derivatives), has played an increasingly important role (mainly, but not exclusively, for professional market players) since the onset of economic globalization in the 1960s”.63 Although not present at the center of this debate in 2013, when Professor Zimmermann wrote these lines, crypto-assets are a factor that deepens this loss of factual state control on its money managing policies and erosion in monetary sovereignty. Nowadays, “the greatest challenge to monetary sovereignty does not emanate from other sovereigns. Rather, the challenge to sovereignty emanates from private money issuers, both domestic and foreign”.64 Although it has been argued that crypto-assets are inherently worthless, there is a well-known demand for these intangible goods,65 which has led to taking them seriously. As a result, crypto-assets have attained enormous relevance during the last decade. For instance, in 2016, “over 100,000 merchants worldwide already [accepted] bitcoin including Amazon.com, Target, PayPal, eBay, Dell, and Home Depot-with anywhere from 80,000 to 220,000 transactions occurring per day, representing over $50 million in estimated daily volume”.66 In addition, Bitcoin, the most famous cryptocurrency, surpassed US$19,000 per unit in value in December 2017,67 which, although aggressively fluctuating in its price, has caught the attention of investors and regulators.68 Unlike state-backed currency, crypto-assets are decentralized. They are created by private issuers—the so-called “mining”—without the oversight of a central banking authority, which hinders governmental control on the amount circulating

62

Gaviria (2009), pp. 4–14. Zimmermann (2013), p. 804. 64 Pistor (2017), p. 514. 65 Abramowicz (2016), pp. 365–366. 66 Maese et al. (2016), p. 469. 67 Molloy (2019), pp. 623–624. 68 As it may be confirmed in the website of the Library of the Congress of the United States, there are 130 countries that have issued laws or policies regarding cryptocurrencies. 63

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in a given economy and on intervening on its value.69 For this, crypto assets rely upon the so-called blockchain protocol, which is “is the basis for a decentralized public ledger that records all [cryptoasset] transactions and removes the financial middleman, allowing transactions to be settled within minutes. Each transaction is verified and validated, resulting in a ledger (or log) of these transactions that are public and transparent. Further, the blockchain is secure and virtually impossible to hack because of its decentralized nature and by the fact that no entity controls it”.70 This permits the essentially cross-border nature of crypto-assets, as: “blockchain is instantaneously replicated and stored on thousands of computers (“nodes“) around the world as cryptocurrency transactions occur. At any point in time, any user around the world can access and view the entire blockchain ledger”.71 Although blockchain provides an identification, verification, and recording of each crypto-asset transaction, it does not yield identifying information of the parties in the transaction, like their name and location, which makes it inherently anonymous.72 This entails a curbing on the effective exercise of tax sovereignty by states. Moreover, it hinders the possibility of collecting revenues on transactions covered by anonymity and with points of contact in various jurisdictions. This real difficulty of controlling the issuance, circulation, and taxation of crypto assets is also tied with the curbing of the exercise of sovereignty in the determination of rules and dispute resolution by state authorities. The issue of conflicts of law and jurisdiction is not new. The boundaries of a state limit sovereignty for law prescription and dispute resolution. In the event of points of contact with different countries, private international law is sought to respond to the rules to be applied and the competent judge. As Justice S. Muralidhar recalls, “the notion of jurisdiction is rooted in territoriality from the point of view of both the court which can properly assert jurisdiction and from the point of view of the law that should be applied while deciding the dispute”.73 However, as it implies dealing with different legal and political systems and cultures, these centuries of experiencing conflicts of law and jurisdiction have shown a lack of harmonization and consistency in the determination of these matters, something increasingly evident in our current globalized economies and even more complex with the omnipresence of cyberspace for these purposes. Due to this cross-border essence, as Professor Goldman suggested it for international trade in the twentieth century regarding lex mercatoria,74 it has been considered that legal relations in the digital era require their cyberspace law in a similar fashion of the Law Merchant, which “evolved over a long time, such that no particular country or era could be said to have had an excessive influence on its

69

Molloy (2019), p. 627. Maese et al. (2016), p. 470. 71 Molloy (2019), p. 625. 72 Ibid., 631–633. 73 Muralidhar (2010), p. 2. 74 Goldman (1964), pp. 177–192. 70

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development. The process was largely evolutionary and, insofar as a sovereign state did not impose it, was democratic. The merchants themselves largely created it”.75 Consequently, international arbitration, amicable settlement, or mediation could be the appropriate tools for addressing the inherent conflicts of the jurisdiction of transnational commerce. Nonetheless, the question of the possibility of enforcing an agreement or an arbitration award, an essential requirement for confidence in commercial transactions, becomes incredibly complex in a scenario of an alleged detachment of state authority as cyberspace. Cyberspace is a relatively new term that “originated from Burning Chrome, a fiction written by American science-fiction writer William Gibson in 1981, which refers to a visual information space created by computers. However, it was only in 1989 when the World Wide Web emerged, and cyberspace entered into reality. In 2003, the American National Strategy to Secure Cyberspace officially explained for the first time that “it is composed of numerous interconnected computers, servers, routers, switches, and cables and supported the operation of national infrastructure”.76 Even though cyberspace is conceived as a separate space from the physical realm where sovereignty may not or hardly be exercised,77 an analysis of its structure allows us to appreciate its ties with physical reality. Notwithstanding that cyberspace and the internet are “inherently global and indifferent to geographic, political boundaries”78 due to the ease and immediateness for transactions with virtually any person in the world, this does not detach it from its contact with the physical world for a merely virtual existence. Although anonymity, globality, and intangibility of certain assets and transactions occurring in cyberspace curb state effective control of activities taking place therein, cyberspace does have a contact with physical reality in different layers, namely “one is made of computers, cables, and communications infrastructure, the second layer consists of the software logic and the last one is made of data packets and electronics. What people would call the core of cyberspace is supported by tangible objects and is connected to the tangible world. Cyberspace has no autonomy from the real space. Internet users are listening to real music created by real authors. Real people are bullied in cyberspace which has real consequences on their real life. Real money and total hours are spent being in cyberspace. Finally, real electricity is consumed when people pretend to be somewhere else”.79 Cyberspace, to exert state sovereignty, “can be further simplified into three factors of network facility, network subject, and network behavior” to promote the operability and clarity of the law”.80 These factors are compatible with the ones widely adopted in private international law for the allocation of jurisdiction and the

75

Cox (2002), p. 249. Xinbao and Xu Ke (2016), pp. 41–42. 77 Treppoz (2016), pp. 273–274. 78 Perritt (1997), pp. 162. 79 Treppoz (2016), p. 274. 80 Xinbao and Xu Ke (2016), pp. 58–59. 76

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determination of applicable rules on a given situation, namely, the location of network facilities and internet infrastructure could be submitted to a territorial approach, network subject can be governed under the nationality principle and network behavior regarding its effects.81 With this, it is evident that “the principle of sovereignty is directly applicable to cyberspace [but] all states are on an equal plane when it comes to exercise of ‘cyber sovereign’s prerogatives”.82 More than erosion or extinction, it can be concluded that the internet is shaping new forms of sovereignty that depart from its traditional conception.83 Thus, due to the overlapping of jurisdictions arising from a globalized digital economy, sovereignty may be seen as interdependence among entities exerting authority in a delimited physical space instead of absolute power. An effective exercise of sovereignty would then depend on the coordination among states, which would only be achieved through international law. As argued from a non-western standpoint, “the integration of cyberspace is so complete that no state can accomplish sovereign tasks related to the major issues of cyberspace without co-participation of other states, including but not limited in: (1) handling of critical internet resources; (2) settings of protocol numbers, websites, communications, and other internet standards; (3) collaboration in entering the Internet and interconnection; (4) network security management; (5) information intermediation regulations related to privacy, data, and comments; (6) intellectual property implementation based on network structure”.84 This could be seen as an incentive for fostering international cooperation and multilateralism. However, it seems that the future will tend to an authoritarian approach to the regulation and control of cyberspace. With a broader understanding and interaction, “countries are beginning to assert sovereign control over their national cyberspace. The next steps will be to deploy technologies to let them enforce control and to create multilateral governance structures to legitimize these actions”.85 Thus, notwithstanding cyberspace has been seen as a space of free speech and action, it can transform into a scenario of control and surveillance due to state intervention and a shift in the ruling values.86 In the words of James A. Lewis, “cyberspace is increasingly Hobbesian, and the belief of the pioneers that a ‘social contract’ would emerge naturally from the self-organizing internet community without the intervention of the State has proven to be either wrong or moving at a pace so slow that threatens security”.87

81

Ibid., pp. 61–62. Kanna (2018), p. 145. 83 Perritt (1997), p. 174. 84 Xinbao and Xu Ke (2016), p. 67. 85 Lewis (2016), p. 63. 86 Muralidhar (2010), p. 38. 87 Lewis (2016), p. 63. 82

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For instance, China, which has argued the exercise of cyberspace sovereignty,88 banned all domestic cryptocurrency markets and initial coin offerings in September 2017.89 Under this criterion, China has also blocked foreign internet tools like Google, YouTube, Facebook, Twitter, Wikipedia, and WhatsApp. In the Western world, the United States has made use of more aggressive mechanisms for trying to identify tax evasion with crypto assets, as the so-called “John Doe Summons”,90 which is not addressed to a particular individual but to a group from which the relevant information is ought to be extracted. As is the case regarding internal security affairs, there could be increasingly tighter measures that curb privacy to prevent evasion and ensure tax collection. Harari notes that “peer-topeer blockchain networks and cryptocurrencies like bitcoin might completely revamp the monetary system so that radical tax reforms will be inevitable. For example, it might become impossible or irrelevant to tax dollars because most transactions will not involve a clear-cut exchange of national currency or any currency at all. Governments might therefore need to invent entirely new taxes— perhaps a tax on information (which will be both the most important asset in the economy and the only thing exchanged in numerous transactions)”.91 With this, it is evident that the issue of sovereignty in cyberspace is not about an erosion of these competencies but of an exercise that may breach the most fundamental rights of individuals. The truth about this era of massification of information technologies is that “governments will establish sovereignty in cyberspace, but it is yet an open question as to whether this extension will be consistent with Western values, or it will lead to a fragmented, less open internet. Other nations will extend government control in ways that may not be to our liking. A failure to move from the beliefs of the internet pioneers could put democratic values at risk”.92 It is only left to wonder if we will be entering an era of cyber-surveillance and absolute governmental control via information technologies. As Harari would express his concerns in this regard, “the danger is not restricted to killing machines. Surveillance systems could be equally risky. In the hands of a benign government, powerful surveillance algorithms can be the best thing that ever happened to humankind. Nevertheless, the same Big Data algorithms might also empower a future Big Brother so that we might end up with an Orwellian surveillance regime in which all individuals are monitored all the time”.93

88

Xinbao and Xu Ke (2016), p. 34. Molloy (2019) p. 624. 90 Elliott (2017), p. 1. 91 Harari (2018), p. 21. 92 Lewis (2016), p. 63. 93 Harari (2018), p. 67. 89

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Surveillance and Control Over the Experience of the Cybernaut

Remember that, as we have stated, the internet has created a new international virtual territory that, in principle, exceeds state borders. Cyberspace can be understood, in conceptual terms, to the international waters that could transcend the sovereignty of states. However, the users that surf the network are physically located in state territory. This situation generates an underlying concern that raises questions about the sovereignty of States. Regarding this dichotomy, it is evident that states have managed to reaffirm their sovereignty in cyberspace. The above has been achieved through surveillance, control, and state regulation of the Internet user’s cyber experience. While the internet’s transnational interconnection in real-time makes state borders diffuse, access to the internet depends on an infrastructure located territorially within a State. Therefore, internet user content control has become a form of reaffirmation of state sovereignty. This can be evidenced by the development of state public policies in various states that regulate the content users have access to the internet. On the other hand, the relationship between law and the fundamental constitutional rights that each State expressly guarantees, and the internet can be observed in the content produced and accessed through the network. In general terms, there are criminal actions that, according to each State’s regulations, if a citizen commits, the judicial system is put in place to judge such conduct. In the case of the internet, the State also claims its capacity to judge citizens who commit illegal actions in cyberspace. Let us suppose that a Colombian citizen uses the internet to sell drugs, military weapons, or any other product associated with criminal activity. Given that Colombian legislation prescribes this type of behavior as illegal, the internet user that transgresses the state regulations is subject to surveillance and discipline by the Colombian State. This type of example has been registered worldwide, such as in the case of the dismantling by US security agencies of a series of deep web domains in which criminal activities were carried out on the internet.94 Now, the guarantee of each State’s fundamental constitutional rights package is also extended in cyberspace. Rights such as the protection of children are guaranteed through bans. For example, the publication and downloading of content related to child pornography are prohibited because, in the majority of States, this behavior is banned within their regulatory frameworks. Suppose we remember that states are social constructions that act according to the values of a population. In that case, we can understand why states seek to impose such regulatory frameworks in cyberspace, which could transcend its jurisdiction given its nature. Despite the possibility of action using the principle of the reason of State, as mentioned by Burdeau, an exercise of sovereignty in which appeals to said

94

Weimann (2016).

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“characteristic, attribution, or essential faculty of state power that consists in giving definitive orders”,95 the dilemma between the guarantee of rights and freedoms of citizenship, and the protection and response to possible threats against the security and the safeguarding of the State remain. Now, we could ask ourselves, what type of content have states claimed the need to control and regulate? As Chenou96 indicates, throughout the history of global internet governance, some of the issues that have been most recurrent in the various internet discussion scenarios, such as the World Summit on Information Society (WSIS), the Working Group on Internet Governance (WGIG), the Internet Governance Forum (IGF), and the World Congress on Information Technology (WCIT), have been cybersecurity and human rights. These two aspects are directly related to the extensive domains of the State mentioned previously (security, justice, and the constitutional package of fundamental rights). There are potential internet threats that the states have securitized. A large part of the developed and developing states have formulated state cybersecurity and cyber defense policies because of the exponential increase in cyber-attacks on government websites, the filtering of classified security content, and the possible violation of protocols that control the military infrastructure.97 This state concern for internet security threats has been evident in the development of state policies and the joint work between states to formulate international cybersecurity policies. An example of this is the development of the International Telecommunication Union (ITU) cybersecurity manual, the North Atlantic Treaty Organization’s (NATO) manual for cyberwar, and the public policy of Colombian digital security, which we will discuss in the following sections of this chapter.

3 Colombian Cyberspace: An Element to Be Protected to Guarantee National Security and Defense 3.1

A Background on Cybersecurity in the European Community

The exponential intensification of the use of the internet worldwide has placed value on the issue of security, which increasingly concerns citizens. In an attempt to combat the illegal activities carried out in the network, the European Union has begun to legislate on the field of citizen cybersecurity.98 One of the latest actions carried out by Europe in this sense was the development of the European Union Cybersecurity Strategy, as a framework of actions aimed at solving issues and 95

Burdeau (1973), p. 248. Chenou (2014). 97 Vargas (2014). 98 Aucal Business School (2016). 96

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improving the space on the network. The document was born of a series of agencies, institutions, and policies working on the various dimensions of security since the end of 1990.99 The EU’s cybersecurity strategy establishes the procedures to prevent and respond to disturbances and attacks that could affect telecommunications systems in Europe. The European Union has extraordinary importance in this context, not only because it groups 28 industrialized countries, which in the global digital economy play an important role, but additionally in these countries, digital technologies are much more (you need an adjective here) than elsewhere, the paradigm of economy and society. Therefore, proportionally, they are more threatened than other countries. Like the increasing cyber-attacks directed by interconnected international operating at a high technical level, cybercrime leads to stark reality in open and interconnected countries such as those of the European Union, which is particularly affected.100 On July 6, 2016, the most recent directive of the European Parliament and the Council of the European Union took place. The main issue addressed was the taking of measures to ensure a high level of security on the networks and information systems of the Union to improve the functioning of the internal market through the following prerogatives: (a) establishes obligations for all member states to adopt a national strategy for the security of networks and information systems; (b) creates a Cooperation Group to support and facilitate strategic cooperation and the exchange of information among member states and to develop trust and confidence between them; (c) creates a network of computer security incident response teams (hereinafter referred to as CSIRT-Computer Security Incident Response) in order to contribute to the development of trust, confidence, and security between the member states and promote rapid and effective operational cooperation; (d) establishes security and notification requirements for operators of essential services and digital service providers; and (e) establishes obligations for member states to designate competent national authorities, single points of contact and CSIRT with functions related to the security of networks and information systems.

3.2

OAS Cyber Security: The Case of the Region

The Organization of American States (OAS) has been working to strengthen cybersecurity capabilities among the OAS Member States since the early 2000s. Over the years, it has become a regional leader in assisting countries to strengthen their technical and cybersecurity capacity at the policy level, to ensure secure and resilient

99

Machín and Gazapo (2016). Wegener (2014).

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cyberspace. The OAS cybersecurity program supports initiatives based on in-depth analysis and understanding of the magnitude of the threats.101 In 2004, the OAS Member States approved the Comprehensive Inter-American Strategy to Combat the Threats to Cybersecurity, which advocated a coordinated, multi-stakeholder effort in the fight against cyber threats in the hemisphere and provided an initial framework to promote guide such an approach. The member states were keen on foretelling things to come when they adopted this strategy, as it has improved the protection of the information and communications technology (ICT) infrastructure, strengthening the capacity of governments to respond and mitigate cyber incidents. These commitments have been reaffirmed and strengthened over the years, following the adoption of numerous official statements, including the most recent one, related to the role and responsibilities of the OAS and its member states in the promotion of cybersecurity, the fight against computer crime, and the protection of critical information infrastructures.102

3.3

Cybersecurity in the European Community as a Precedent

The exponential growth in the use of the internet worldwide has brought to the forefront an issue of growing concern to citizens, namely security. To try to combat the illegal activities that take place on the network, the European Union has begun to legislate on the field of cybersecurity the citizens of the European Union,103 one of the last actions taken by Europe in this regard was the development of the European Cybersecurity Strategy as a framework of actions aimed at solving and improving the space on the network. The document is supported by a series of bodies, institutions, and policies working on the various dimensions of security since the late 1990s.104 The EU cybersecurity strategy sets out the EU’s plans for preventing and responding to disruptions and attacks that could affect telecommunications systems in Europe. The European Union has importance in this extraordinary context, not only because it groups 28 industrialized countries, which in the global digital economy play a relevant role, but also because digital technologies are much more than elsewhere, the paradigm on the economy and society. Moreover, they are also proportionally more threatened than in other countries. In addition, as the increasing cyber-attacks are led by international gangs connected and operating at a high technical level, cybercrime brings us to a stark reality in open and interconnected countries such as those of the European Union, which is particularly affected.105

101

Organization of American States (n.d.). Observatorio de la Ciberseguridad en América Latina y el Caribe (2016). 103 Aucal Business school (2016). 104 Machin et al. (n.d.). 105 Wegener (2014). 102

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In the most recent Directive of the European Parliament and of the Council of the European Union (EU) of July 6, 2016, on measures to ensure a high standard level of security of network and information systems in the Union in order to improve the functioning of the internal market, by means of the following prerogatives: (a) establishes obligations for all Member States to adopt a national strategy for the security of network and information systems; (b) establishes a Cooperation Group to support and facilitate strategic cooperation and information exchange between Member States and to develop trust and security between them; (c) establishes a network of computer security incident response teams (hereinafter referred to as the “CSIRT network”) in order to contribute to the development of trust and security between Member States and to promote rapid and effective operational cooperation; (d) establishes requirements in the field of security to help develop trust and security between Member States and to promote rapid and effective operational cooperation; e) establishes security and notification requirements for operators of essential services and for digital service providers; f) establishes obligations for Member States to designate competent national authorities, single points of contact and CSIRTs with functions related to the security of network and information systems. Based on the NIS Directive, each State’s regulations delimit the entities that provide essential services to the community, depend on information networks and systems, and identify the primary operators that provide these services. The failure of these services can represent a severe threat and cause serious damage to the economy and society (financial losses, undermine public confidence, even affect national security). Therefore, operators of essential services and digital service providers must adopt measures proportionate to the levels of risk based on a prior assessment of the same. Incident reporting is vital, even if it has had no real effect, to create a risk management culture. There is a standard notification platform that can also be used to notify personal data security breaches. The system is confidential, and the notifying entity and personnel reporting incidents are protected. The competent authorities will exercise oversight functions and promote the development of the obligations.

3.4

OAS Cyber Security: The Case of the Region

The Organization of American States (OAS) has been working to strengthen cybersecurity capabilities among OAS member states since the early 2000s. Over the years, it has become a regional leader in assisting countries to strengthen cybersecurity and technical capacity at the policy level to ensure secure and resilient cyberspace. The OAS cybersecurity program supports initiatives based on in-depth analysis and understanding of the magnitude of threats.106

106

Organization of American States (n.d.).

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In 2004, OAS Member States approved the comprehensive Inter-American Strategy to Combat Cyber Security Threats, which called for a coordinated multistakeholder effort to combat cyber threats in the hemisphere and provided an initial framework to cultivate and guide such an approach. Member states were extraordinarily prescient when adopting such a strategy as it has improved the protection of information and communications technology (ICT) infrastructure, strengthening the ability of governments to respond to and mitigate cyber incidents. Moreover, these commitments have been reaffirmed and strengthened over the years by adopting numerous official declarations, including the most recent one related to the role and responsibilities of the OAS and its member states in promoting cybersecurity, combating cybercrime, and protecting critical information infrastructures.107 Cyberspace is a “complex environment consisting of interactions between people, software and services on the Internet through technological devices and networks connected to it, which does not exist in physical form” (ISO/IEC 27032:2012). In this sense, the exercise of rights by citizens and the fulfillment of the functions of municipal governments are transferred to a complex environment, the understanding of which is fundamental to be able to protect it. For the fulfillment of state purposes, among which is the guarantee of citizens’ rights, including the rights of the new generations, and the efficient provision of services, activity in cyberspace, and, in particular, smart cities use emerging technologies. Cloud computing, blockchain, the Internet of Things (IoT), analytics, big data, artificial intelligence, robotics, 3D printing, and, of course, cybersecurity become cross-cutting and essential elements for the materialization of transformation desires. Therefore, preparing a cybersecurity strategy (digital security) becomes the tool for states to face the challenges brought by the advent of technologies.

3.5 3.5.1

Colombia’s National Digital Security Policy: Critical Elements Structure and Development of the National Digital Security Policy

The Joint Working Group on Cyber Security Education (2017), comprised of leading international computer societies, defines cybersecurity Burley et al. (2017) as a “computer-based discipline that involves technology, people, information, and processes to enable secured operations. It involves the creation, operation, analysis, and testing of secure computer systems. It is an interdisciplinary course of study, including aspects of law, policy, human factors, ethics, and risk management in the adversarial context”. Cybersecurity seeks the protection of:

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Observatory of Cybersecurity in Latin America and the Caribbean (2016).

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– Information. Corresponds to the protection of data stored, collected, managed, or processed by the various actors of a smart city. – Hardware. This corresponds to the protection of the tools, instruments, and physical means through which the services provided by the various actors of a smart city are supported. Servers, computers, antennas, networks, and any physical tool used supports the services using ICT. – Software. It corresponds to the protection of developments, programs, information systems, and applications that enable and support the various smart city actors. – Services. Corresponds to the protection of all services offered and provided by the various actors of a smart city. The services are linked to the fulfillment of the functions and performance of activities constitutionally and legally assigned by the various smart city actors. – Human Resources. This corresponds to the protection of people, especially the human resource that must be considered an asset for the various stakeholders of a smart city due to its experience and criticality for the provision of services. The human resource to be protected is linked to the organization or third parties part of the supply chain. – Facilities. This corresponds to the protection of all physical spaces considered fundamental or critical for maintaining the social and economic activities provided by the various actors of a smart city based on the use of ICTs. – Critical national cybernetic infrastructure. This corresponds to the protection of all infrastructure, public or private, that supports the provision of essential activities for the exercise of citizens’ rights and the performance of their social and economic activities, and whose destruction or damage may generate a significant impact on the social or economic well-being of citizens or the normal functioning of institutions. Cybersecurity comprises governance, policies and guidelines, actors, environment, tools, applied methodologies and best practices for risk management and incident management, training and ongoing training, and of course, the articulation and collaboration of the different actors. The CONPES document on digital security (3854 of 2016) starts from a diagnosis from which one could highlight the determination of the absence of a strategic vision based on risk management; in our State108, it is also determined that multiple stakeholders do not maximize their opportunities when developing socio-economic activities in the digital environment.109 Likewise, it is necessary to strengthen

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Colombia does not have a national coordination body for digital security that optimizes the management of resources allocated to this area. This absence does not allow the country to have a strategic vision that articulates the functions and activities of the existing institutional framework around national objectives in digital security. This situation leads to duplication of efforts and less efficiency. Departamento Nacional de Planeación (2016), p. 31. 109 (In the country, the objective of economic and social prosperity is not currently distinguished from the objectives of defense and national security in the digital environment. This means that

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cybersecurity capabilities with a risk management approach, 110 as well as to strengthen cyber defense capabilities with a risk management approach, and it is determined that cooperation, collaboration, and assistance efforts, national and international, are related to digital security are insufficient and disjointed. Against this backdrop, a new policy is proposed, developed as follows. The overall objective of this new policy is to “identify, manage, address and mitigate digital security risks in its socio-economic activities in the digital environment, within a framework of cooperation, collaboration, and assistance. The above, in order to contribute to the growth of the national digital economy, which in turn will drive greater economic and social prosperity in the country”.111 This general objective will be developed through five strategies aimed at; (i) Establish an institutional framework for digital security consistent with a risk management approach, (ii) Create the conditions for multiple stakeholders to manage digital security risk in their socio-economic activities and build trust in the use of the digital environment, (iii) Strengthen the security of individuals and the State in the digital environment, (iv) Strengthen national defense and sovereignty in the digital environment with a risk management approach, (v) Generate permanent and strategic mechanisms to promote cooperation, collaboration, and assistance in digital security, at national and international level. However, as a process of evolution of this policy, in July 2020, the national policy on trust and digital security was issued with the objective of “establishing measures to expand digital trust and improve digital security so that Colombia is an inclusive and competitive society in the digital future. To achieve this objective, firstly, the digital security capabilities of citizens, the public sector, and the private sector in the country will be strengthened; secondly, the digital security governance framework will be updated to increase its level of development and finally, the adoption of models, standards, and frameworks for digital security will be analyzed, with emphasis on new technologies”.112

Colombia currently focuses its efforts on countering cyber threats that threaten national defense and security, and does not adopt a digital security risk management strategy that involves all stakeholders, through which the opportunities and economic benefits granted by the digital environment to society in general are maximized. Ibid., 34. 110 ( In this same sense, it is identified that the agencies, instances and entities in charge of the analysis, identification, prevention, investigation and prosecution of cybercrime and cybercrime in the country, do not have sufficient human, technical and financial resources to face new types of crime and delinquency at national and transnational level. Nor are they based on digital security risk management, which causes greater opportunity for the materialization of cyber threats. Departamento Nacional de Planeación (2016), p. 39. 111 Ibid. 112 Departamento Nacional de Planeación (2020), p. 3.

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Establish an Institutional Framework for Digital Security Consistent with a Risk Management Approach

Threats in cyberspace are latent, and a set of actors meet for various purposes. Thus, the institutional framework becomes an essential tool to deal with these. See the role that each plays: – Cybercriminals. Those who use ICTs commit different crimes. They are the perpetrators or participants in the endangerment or damage to the legal assets of the victims. – Cyberspies. Through illegal and criminal practices, those who obtain secrets and information from a victim without the permission of the owner or holder of the information, i.e., citizens, governments, or companies, among others. – Cyberterrorists. Through illegal and criminal practices and supported by the use of ICTs, those who generate terror or generalized fear in a population, ruling class, or government and thereby cause a violation of people’s free will for the achievement of different purposes. – Cyberactivists. Through illegal and criminal practices, those who create, operate or manage activism with a social, altruistic, advocacy, or movement motivation. For the understanding of the document, activism that carries out illegal and criminal practices should be considered. – Citizens. Persons are considered active members of a State. Therefore, they are entitled to civil and political rights and are subject to their laws. – An enterprise. An organization of persons engaged in activities or the pursuit of economic, commercial, or social purposes to satisfy specific needs of the population. Private organizations of all kinds, social, charitable, cultural, etc., could be considered in this same sector. – A state. A typical political organization of the territory, population, and governing bodies is sovereign and politically independent of other communities. In this section, all the political and administrative authorities of a state, ministries, governors’ offices, mayors’ offices, etc., could also be considered. – Whatever the type of stakeholders (active or passive), they can become: – Private actors. Those were representing the interests of legal entities (profit or non-profit) or natural persons. – Public actors. Those who represent the government or authority in their administrative functions depend on the level (localities, municipalities, departments, ministries, etc.). – National actors. Those who have a legal, political, and emotional link with a State; are also subject to the domestic legislation because their nationality allows them to do so. – Foreign actors. Those who are not part of the legal, political and mental community of a State as a reference. This implies that they are not subject to certain obligations or rights proper to nationals of a State. – Individual actors. Those who act in a particular, autonomous, independent, and own way, without the accompaniment.

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– Collective actors. Those, finally, who, being several and in community, come together to make decisions and act. Attackers enter due to vulnerabilities that correspond to failures in elements or assets (software, hardware, networks, infrastructure, or people), which are identified and exploited by cybercriminals, cyberspies, cyberterrorists, and cyberactivists to achieve their objectives. The human factor is one of the principal vulnerabilities that they exploit to achieve their goals. Such failures can originate from within organizations or outside through supply chains and other third parties (customers, control authorities, etc.). Therefore, the implementation of controls on an ongoing basis, the identification of vulnerabilities, ongoing training, a collaboration between stakeholders, and the appropriate management of risks and incidents become the main activities to protect the organization’s assets. Among the elements to be highlighted in the document is the creation of the figure of national coordinator of digital security, which will have among its functions: Direct the implementation of the national digital security policy and continuously monitor it; Carry out inter-institutional and intersectoral coordination on digital security issues; Ensure that the scope of digital security in the country includes economic and social prosperity; as well as cybersecurity, to address new types of crime, delinquency, and other phenomena that affect national security; and cyber defense; guarantee that the programs, projects and awareness and sensitization campaigns, as well as the training that the different entities carry out, are designed based on the guidelines and orientations issued by the National Digital and State Information Commission, or whoever takes its place, in order to avoid duplication of efforts and guarantee efficiency in the management of resources; Recommend further actions in collaboration with multiple stakeholders, in view of the rapid rate of technology development and cyber-attack scenarios; coordinate with the National Digital and State Information commission, and multiple stakeholders, reports regarding compliance with the higher guidance guidelines established for the implementation of the national digital security policy within the framework of its fundamental principles. As provided in the CONPES document 3995 of 2020, “In terms of digital security, there are two high-level instances within the governance framework in Colombia. The first is the national digital security coordinator figure provided for in CONPES Document 3854 approved in 2016. To date, this figure is headed by the Ministry of Economic Affairs and Digital Transformation of the Presidency of the Republic. In addition, the Counseling Office acts as an advisory body for the Presidency of the Republic and entities of the national government on the issues under its responsibility, among which digital security is one of them”.113 However, this institution does not have the required levels of governance.

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Departamento Nacional de Planeación (2020).

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Create the Conditions for Multiple Stakeholders to Manage Digital Security Risk in Their Socio-Economic Activities and Build Trust in the Use of the Digital Environment

Among the strategic elements that should be highlighted in this regard are those concerning the establishment of mechanisms for the active and permanent participation of multiple stakeholders in digital security risk management; the adaptation of the legal and regulatory framework to the dynamics of the digital economy and its inherent uncertainties; the identification and addressing of possible adverse impacts that other policies may generate on the activities of multiple stakeholders or economic and social prosperity in the digital environment; and the generation of trust among multiple stakeholders in the use of the digital environment; identifying and addressing the potential negative impacts that other policies may have on multistakeholder activities or economic and social prosperity in the digital environment, and building multi-stakeholder confidence in the use of the digital environment, and promoting responsible behavior in the digital environment.

3.5.4

Strengthen Risk Management by Incorporating International Standards

It is necessary to empower citizens and the State concerning the risks of the digital environment and to consolidate the country’s capabilities to deal with crime, delinquency, and other phenomena that affect national security from this environment. Therefore, an essential issue is the incorporation of risk management models with international standards. The models compile experiences from other organizations that have already successfully implemented cybersecurity and classify them into process models and framework models. Among the most commonly used frameworks to measure the maturity level of cybersecurity capabilities are (i) SEE-CMM, (ii) CFS-NIST, and (iii) C2M2. The SEE-CMM model defines twenty-two (22) areas (eleven dedicated to engineering processes and eleven to project management) and establishes five (5) maturity levels. For its part, the NIST Cybersecurity Model (CSF) consists of three (3) main components: (a) Framework Core, (b) Implementation Levels (Tiers), and (c) Profiles. The core consists of four (4) elements: Functions, Categories, Subcategories, and Informative References (the latter correspond to the source of the controls: ISO/IEC 27001; Cobit 5; CIS CSC; ISA; and NIST SP 800-53). It defines five (5) functions or phases: (i) Identify, (ii) Protect, (iii) Detect, (iv) Respond and (v) Recover. It also considers five (5) levels of implementation of the entire framework: Level 1: Partial; Level 2: Risk-Informed; Level 3: Repeatable; and Level 4: Adaptable. These levels do not represent maturity levels. The Levels are intended to support organizational decision-making on how to manage cybersecurity risk and

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which dimensions of the organization are of highest priority and could receive additional resources. The C2M2 model is based on four (4) maturity levels (MIL0 to MIL3) and ten stages: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Risk management. Asset, change, and configuration management. Identity and access management. Threat and vulnerability management. Situational awareness. Exchange of information and communications. Response to events and incidents. Continuity of operation. Management of the supply chain and external dependencies. Pro Workforce management and cybersecurity administration program.

The ISMS model defines the requirements for establishing, implementing, maintaining, and continually improving an information security management system under ISO/IEC 27001. It also includes requirements for the assessment and treatment of information security risks and an annex with one hundred and fourteen (114) controls, grouped into fourteen (14) control objectives that are applied according to the risk assessment results.

3.5.5

Strengthen National Defense and Sovereignty in the Digital Environment with a Risk Management Approach and Cooperation

It is essential to develop prevention, detection, containment, response, recovery, and defense capabilities to guarantee the purposes of the State, as well as to improve the protection, preserve the integrity and resilience of the national critical cyber infrastructure, for which it is necessary to strengthen the instances and entities responsible for national defense in the digital environment, adapt the legal framework to address the protection and defense of the national digital environment, generate a strategy for the protection and defense of the national critical cyber infrastructure, strengthen the scheme of identification, prevention, and management of digital incidents, with the active participation of multiple stakeholders, and strengthen the capabilities of those responsible for ensuring national defense in the digital environment. National multi-stakeholder cooperation and international cooperation on digital security are essential. To this end, mechanisms should be created to promote international cooperation, collaboration, and assistance on digital security and strengthen national multi-stakeholder cooperation, collaboration, and assistance on digital security. This process has evolved to strengthen Colombia’s cybersecurity capabilities; therefore, the policy launched in 2020 has the following strategic goal: “1.

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Strengthen the digital security capabilities of citizens, the public sector and the private sector to increase digital confidence in the country. 2. Second, update the governance framework for digital security to increase its degree of development and improve the country’s progress in digital security. 3. Third, analyze the adoption of models, standards, and frameworks for digital security, with emphasis on new technologies to prepare the country for the challenges of the 4IR.”114 This is where the challenges lie because despite several years of progress, the processes continue to be slow and the results minimal.

3.6

Cyber Defense

States organize security defense by establishing a national security strategy. Then, according to the threats and risks, defense strategies are planned and defined from the different strategic spaces that give rise to the different facets of defense such as territorial defense, air defense, border defense, economic defense, and as one of these spaces is precisely the space of cybernetics or cyberspace, today there must also be a cyber-defense that guarantees cybersecurity.115 Cyber defense is the set of active or passive actions and/or operations developed in the field of networks, systems, equipment, links, and personnel of the computer and tele informatics resources of the defense in order to ensure the fulfillment of the missions or services for which they were conceived while preventing enemy forces from using them to fulfill theirs. Therefore, it has been proposed to initiate the process of Cyber Defense by Computer Intelligence with cyberspace as an environment to obtain the descriptor elements, which confirm the identification of the scenarios and at the same time to parameterize the threats, to be able to dimension the risks and thus make possible the design of the defense instruments.116 Based on the above, cyber defense is carried out in terms of active and passive defense of the operations center, the institution’s information resources in order to repel cyber-attacks suffered by the institution, whose primary weapon by disposition is military communications, and to contribute to the cyber protection of the country’s critical infrastructure. About the first of these, it can be explained as a strategy determined in acquiring a cyberspace defense capacity, combining the internal protection of the systems, the permanent surveillance of sensor networks, and the rapid response in case of attack, counteracting cyberspace threats and guaranteeing access to cyberspace and the second is the strategy for the protection of assets related to information systems through detective, corrective and dissuasive controls that counteract possible threats.117

114

Departamento Nacional de Planeación (2020), p. 3. Ministry of Defense, Spanish Institute for Strategic Studies (2012), p. 42. 116 Consejo Argentino para las Relaciones Internacionales (2013), p. 9. 117 Ejército Nacional de Colombia (2015). 115

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Colombia’s Cyber Emergency Response Group has as its primary responsibility the coordination of Cybersecurity and National Cyber Defense, which will be framed within the Mission Process of Security and Defense Management of the Ministry of National Defense. Its primary purpose will be to coordinate the necessary actions to protect the critical infrastructure of the Colombian State against cybersecurity emergencies that threaten or compromise national security and defense.118 We have the SICOE—Information System of the National Army Operations Center. Through this tool, Major and Minor Operational Units of the Army report each one of the events and operational situations that occur throughout the national territory. Its main objective is to promote information at the required time, allowing for quantitative and qualitative analysis of any operational situation that may arise under security levels that guarantee the integrity and confidentiality of the information.119 Furthermore, the SIGE- Army Geographic Information System has been designed for the capture, storage, manipulation, analysis, modeling, and presentation of military data, especially supporting cartographic information and tools necessary for the planning and monitoring of military operations. The SIGE is a spatial analysis tool that provides detailed geographic information to facilitate the military process in all the Joint Cybernetic Command (CCOC). A significant advance that has occurred in the last year has been the issued Resolution 500 of 2021, which aims to establish the general guidelines for the implementation of the Information Security and Privacy Model (MSPI), the guide for information security risk management and the procedure for the management of digital security incidents and establish guidelines and standards for the digital security strategy. The MSPI because for the first time, joint guidelines are given on these issues, but the incident response model is highlighted because it points out a set of obligations that ultimately aim to provide tools to give a response from the national defense in severe cases of affectation to critical infrastructures or national services. Therefore, the authorities, as provided in Article 9 of the resolution, must: Establish a procedure for managing digital security incidents, to carry out the treatment, investigation, and management of digital security incidents that arise concerning the information assets of each process, for which they must: 1. manage digital security incidents, according to the procedure established by MinTIC, for which they must create a log containing the description of each of the activities developed in the management of these. 2. Designate those responsible for managing and responding to digital security incidents within the entity, led by the person responsible for digital security. 3. Once the digital security incident has been identified, the incidents classified as Very Serious and Serious by the entity must be reported to the Government CSIRT (Digital Security Incident Response Team) for the respective support and coordination in the management of these incidents through the report format established by the Government CSIRT, which will be available through the Government CSIRT communication channels. 4. Incidents classified by the entity's digital security manager as Less Serious and Minor must be reported to the CSIRT

118 119

Colombian Cyber Emergency Response Group (n.d.). Ejército Nacional de Colombia (2015).

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Government in the established form once managed to keep statistics of the incidents and know the typologies of these. 5. The obligated entities, according to the analysis and investigation of the incidents and taking into account the root cause, must carry out the individual improvement plans, for which the entity’s digital security manager will supervise and monitor their compliance.120

This is perhaps the most significant advance for Colombia’s cyber defense.

4 Conclusions The review we have made so far has allowed us to see the decisive role of the States in the global governance of the internet. What initially emerged as a primarily private initiative that laid the foundations for creating new virtual space was quickly claimed by the States as a space susceptible to the exercise of its sovereignty. Although states are not the only actors in the global governance of the internet, they play a fundamental role concerning its control and regulation. The internet involves substantive issues of state functions such as security, legality, and fundamental constitutional rights. In this sense, the State extends these elements into cyberspace, justifies its actions on the internet based on the potential threats to its security, and reaffirms its sovereignty in cyberspace. This can be evidenced in the development of state policies that condition the experience of the internet to the regulatory framework of the State, which emanates from a social construction based on the particular values of each society. The development of techniques and strategies to control and monitor the internet user’s experience by the State is how the exercise of state sovereignty has mutated. In the same way, these forms of surveillance and control are discussed in international scenarios where the global governance of the internet is constructed. These positions are defended and debated in these scenarios by the states with the highest proportion of representation concerning other interest groups in the global governance of the internet. Among these positions, we find two characteristic models that capture much of the discussion regarding such governance, a broad one promulgated by the United States and a restrictive one by China. The debate continues despite these conditions that have enabled the systematic development of a paradigmatic order at the institutional, functional, and instrumental levels. Therefore, all sectors of society and the international community must see the magnitude of this issue as a window of opportunity to contribute to the debate and to find solutions to guarantee more secure and integral access to this media which, despite the mentioned threats, continues to be an unparalleled medium of communication and information.

120 Ministerio de Tecnologías de la Información y las Comunicaciones (Ministerio de Tecnologías de la Información y la Comunicación – Gobierno de Colombia 2021), p. 4.

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Regarding Colombia’s national digital security policy, given the limited space remaining, we will limit ourselves exclusively to stating the critical elements to be developed, and which become the real challenge for the effectiveness of this new electronic security policy. Namely, (i) the preparation and execution of plans to strengthen operational, administrative, human, and scientific capacities; (ii) the preparation and execution of the plan to strengthen institutional, operational, administrative, human, and physical infrastructure capabilities and the technological intelligence sector; (iii) the design of a digital security risk management model at the national level; (iv) the adjustment to the regulatory framework of the Information and Communications Technology sector, taking into account the aspects necessary for the management of digital security risks; (v) the creation of a national and international strategic agenda on digital security issues; (vi) the adaptation and implementation of a digital security risk management model at the national level.

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Ministry of Defense, Spanish Institute of Strategic Studies. 2012. “Ciberespacio: nuevo escenario de confrontación” (Cyberspace: New Confrontation Scenario). Monografías del CESEDEN 126. Retrieved from: https://dialnet.unirioja.es/servlet/libro?codigo¼547632. Molloy, B. 2019. Taxing the Blockchain: How Cryptocurrencies Thwart International Tax Policy. Oregon Review of International Law 20 (623). Muralidhar, S. 2010. Jurisdictional Issues in Cyberspace. Indian Journal of Law and Technology 6 (1). Observatorio de la Ciberseguridad en América Latina y el Caribe. 2016. Ciberseguridad - Estamos preparados en América Latina y el Caribe. Organización de los Estados Americanos – OEA. Retrieved from: https://www.sites.oas.org/cyber/ES/Paginas/Documents.aspx. Oppenheimer, F. 2014. El Estado: su historia y evolución desde un punto de vista sociológico. Madrid: Unión Editorial. Organización de los Estados Americanos. “Iniciativa de seguridad cibernética de la OEA. Foro global sobre experticia cibernética (GFCE).” (OAS Cybersecurity Initiative. Global Forum on Cyber Expertise (GFCE)), Recuperado de: https://www.sites.oas.org/cyber/ES/Paginas/ Documents.aspx Peralta, R. 1999. Soberanía nacional y Estado constitucional. Revista de estudios políticos 105. Perritt, H. 1997. Cyberspace and state sovereignty. Journal of International Legal Studies 3 (2). Pettis, E. 2011. Is China’s manipulation of its currency an actionable violation of the IMF and/or the WTO agreements? Journal of International Business and Law 10 (2). Philpott, D. 2001. Usurping the sovereignty of sovereignty. World Politics 53 (2). Pistor, K. 2017. From Territorial to Monetary Sovereignty. Theoretical Inquiries in Law 18 (2). Raboy, M., and R. Mansell. 2011. The Handbook of Global Media and Communication Policy. Oxford: Wiley Blackwell. Rosenbloom, D. 1994. Sovereignty and the Regulation of International Business in the Tax Area. Canada-United States Law Journal 20 (267). Simma, B., and A.T. Müller. 2013. Exercise and Limits of Jurisdiction. In The Cambridge Companion to International Law. Cambridge: Cambridge University Press. Shaw, M. 2017. International Law. Cambridge: Cambridge University Press. Soengas-Pérez, X. 2013. El papel de Internet y de las redes sociales en las revueltas árabes: una alternativa a la censura de la prensa oficial. Revista Comunicar: 147–155. Treppoz, E. 2016. Jurisdiction in the Cyberspace. Swiss review of international and European Law 26 (2). Valderrama, D. 2018. El acceso a internet como derecho fundamental: Caso costarricense y su viabilidad en Colombia. Novum Jus 12 (2). Valencia, D. 2015. El Estado en la era de la Globalización y las nuevas tecnologías. Bogotá: Editorial Ibáñez. Vargas, M. 2014. Ciberseguridad y Ciberdefensa: ¿Qué implicaciones tienen para seguridad nacional? Bogotá D.C: Universidad Militar Nueva Granada. Weber, M. 1964. Economía y sociedad. Ciudad de México: Fondo de Cultura Económica. Wegener, H. 2014. Ciberseguridad en la Unión Europea. Instituto Español de Estudios Estratégicos, Documento Opinión. Weimann, G. 2016. Studies in Conflict & Terrorism. Wendt, A. 2013. Social Theory of International Relations. Cambridge: Cambridge University Press. Xinbao, Z., and X. Ke. 2016. A Study on Cyberspace Sovereignty. China Legal Science 4 (5). Zimmermann, C. 2013. The Concept of Monetary Sovereignty Revisited. The European Journal of International Law 24 (3).

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Eduardo Andrés Perafán Del Campo Ph.D. (c) in Social Sciences - Dynamics and Changes in Space and Society of Globalization from the University of Granada, Spain. Master in Political and International Studies and Political Scientist at Universidad del Rosario, Colombia. Academic editor of the scientific journal Novum Jus. University professor and researcher of the research group in Public Law and ICT of the Law School of the Universidad Católica de Colombia. Analyst and consultant in public and international affairs. Email: [email protected] Sebastián Polo Alvis Political scientist of the Universidad del Rosario. Professor and researcher in the line of Dynamics and International Affairs of the Group of International Political Studies (GEPI) at the Faculty of Political Science and Government of the Universidad del Rosario. Email: [email protected] Marco Emilio Sánchez Acevedo Ph.D. in Technologies and Services of the Information Society Public Law and Technologies of the Universidad de Valencia, Spain. Specialist in Constitutional Law and Local Electronic Government. Lawyer. Postgraduate professor at the Universidad Católica de Colombia and researcher of ICT Law. Email: [email protected] Alejandro León Quiroga Lawyer from Universidad del Rosario with emphasis in commercial law. Specialist in international business law and MSc(c) in Philosophy from Universidad de los Andes. Consultant in private and financial law and dispute resolution. Email: aleonquiroga@gmail. com

International Watercourses: Between the Division and the Border Unit Dayana Becerra

Abstract It is important to show that frontiers are not just set by land borders but also by watercourses. This takes relevance when rivers run between States without regard to the territorial delimitation. For that reason, it is important to show how this inevitable change in the course of the waters must be analyzed from a political, geographical, and economic perspective. With this purpose, this chapter will show a theoretical axis about watercourses, how international law interferes with this theme, its prohibitions, some cases about the legal protection to the watercourses and the human right to water before the watercourses; conclusions will be given at the end.

1 Introduction Addressing international watercourses allows an understanding of orders not constituting specific and closed limits to which the dominion, responsibility, and sovereignty of states extend. Geographically, rivers or freshwater resources run indifferently to the territorial delimitation and are shared by two or more states, which generates a link between the riparian parts that must be studied by law. This understanding of the legal reality of international watercourses must be addressed from an international perspective and should focus on shared environmental preservation, administration, and interstate management of the waters and the ecosystem where they interact. However, the purpose of this ecological protection has a dual dimension. On the one hand, it concerns the individual and aims to ensure the fulfillment of vital human

This chapter is the result of the research project entitled Contemporary Challenges for the Protection of Human Rights in Post-Conflict Scenarios from Interdisciplinary Approaches developed with the groups Person, Institutions and Demands for Justice and Phronesis, linked to the Socio-Legal Research Center (CISJUC) at the Faculty of Law of Universidad Católica de Colombia, in Bogotá. D. Becerra (*) Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia e-mail: [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 D. Endrizzi et al. (eds.), Frontiers – Law, Theory and Cases, https://doi.org/10.1007/978-3-031-13607-8_6

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needs (or even the human right to water) in times of water scarcity or when facing pollution or natural disasters associated with its quality and supply, regardless of the nationality of the individuals. On the other hand, as far as the states are concerned, it seeks to avoid the proliferation of political conflicts, which may arise during the administration, and the equitable and reasonable distribution of these shared resources, which, when aggravated, may become war-like. Therefore, the effects of these waters affect both the personal the interstate spheres. Because of the unavoidable intervention of law in this area, the original legal solutions have sought to protect shared watercourses, focusing on solutions related to navigation or from a national perspective. However, the advances made in recent years are focused on responding to environmental issues from the field of international law. Although it may be excessive to affirm that there is a structured and consolidated legal system for the protection of these water resources, there is an undeniable presence of soft laws, some legally binding instruments with greater claims of universality, and a diverse range of bilateral or multilateral treaties for the protection and administration of specific watercourses.

2 Approach to the Notion of an International Watercourse The term International Watercourses (IWC) is used in the legal field to designate freshwater resources that run through the territories of several states. This notion excludes marine waters, internal fluvial resources, and the Arctic and Antarctic water reserves. The legal protection of IWC has a large and challenging environmental component because of the influence of the multiple ecological, economic, and political interests of the states that share them, which can generate conflict that is increased in situations of scarcity, contamination, or transboundary damages. Although there is currently a relative consensus in the doctrine regarding the use of the term “international watercourse”, this is an evolutionary notion. The true importance derived from the use of the expression lies in the protection characteristics intrinsic to each notion that has historically been used. However, with the advance of international law, expressions such as “International River”,1 “Navigable Waterway of International Concern”, or more recently, “International Hydrographic Basin” have been used progressively.2 Now, focusing on the issue at hand, it should be noted that the term, international watercourse, according to the “Convention on the Law of Non-Navigational Uses of International Watercourses”, describes a system of surface and groundwater that flows through different states. By their physical relationship, they constitute a unitary whole and usually flow to a common outlet,3 which supposes an 1

Instituto Iberoamericano de Derecho Comparado (1920). The European Parliament and The Council of the European Union (2000). 3 General Assembly of the United Nations (1997), p. 20. 2

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interconnection of internationally shared waters, not only of surface water but also of subterranean waters. However, this Convention addresses the issue with a high degree of generality, leaving the protection of transboundary aquifers open to interpretations and doubts. Thus, the object of regulation has been extended from the notion of International River, its tributaries, and connected underground waters, and sometimes extending to the hydrographic basin. However, there is a divide regarding the inclusion of transboundary aquifers and their protection because of the controversy regarding international watercourses, given their potential as future reservoirs, and their association with the extraction processes of hydrocarbons using the hydraulic fracturing technique or fracking, which makes their joint regulation more complex. Despite this and following the current doctrine and the Convention on the Law of Non-Navigational Uses of International Watercourses, transboundary aquifers are not included in the notion of IWCs.

3 International Law on International Watercourses Currently, the protection of the IWC is based on uses other than navigation; this undoubtedly represents a significant environmental concern. Thus, two important international legal instruments emerged from this ecological safeguard interest; first, the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, and second, the Convention on the Law of Non-Navigational Uses of International Watercourses. These two international agreements are broadly representative in current international law because they have managed to unite relevant states and approach the matter from a general perspective; although, their ratification is not wholly generalized - especially in the latter case. The Protection and Utilization of Transboundary Watercourses and International Lakes This international legal agreement is also known as the Water Convention. It was signed in Helsinki, Finland, in March 1992; it entered into force in October 1996. Its negotiation was carried out within the United Nations Economic Commission for Europe (UNECE);4 therefore, it was only open for ratification by the States that integrated it. However, Decision III/1 of November 28, 2003, opened the agreement for signature by the other members of the United Nations. It should be noted that the 4

The Economic and Social Council created the United Nations Economic Commission for Europe (UNECE) in 1947. It is one of the five regional commissions of the United Nations. The main objective of the UNECE is to promote pan-European economic integration. To do this, it brings together 56 countries within the European Union, and some outside of it. All of these countries participate in dialogue and cooperation on economic and sectoral issues. However, all interested States members of the United Nations may participate in the work of UNECE. More than 70 international professional organizations and other non-governmental organizations participate in its activities.

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decade between the signing and the opening of the agreement to other states underscores the delay in the protection requirements of international watercourses outside the European continent. The purpose of this Convention is to establish the common provisions for the member states of the UNECE on the management of internationally shared waters (rivers or lakes). However, its openness to the other members of the UN is motivated by the interest of achieving the global unification of an international environmental water law, which consensually prevents the proliferation of inter-party legal instruments, or at least dictates the guidelines of a formulation to avoid disparity of normative criteria, especially concerning its codes. The Water Convention emerges from a previous series of international meetings and agreements, which sought to provide a scope for a uniform international legal protection of internationally shared freshwater and lakes. An example of these earlier meetings is the one held in Sofia in 1989 on environmental protection, within the framework of the Conference on Security and Cooperation in Europe. Similarly, the Code of Conduct on the Accidental Pollution of Transboundary Inland Waters was approved in 1990, which served as a reference for the Water Convention. From the latter, the UNECE organized a workgroup, which in five meetings drafted the project of the convention, achieving the launching of the agreement in 1992.5 The primary objective of this agreement is the adoption of measures to prevent, control, and reduce the impacts on transboundary rivers and lakes, understanding that these are found either on the surface or in the water table and “designate, cross or are located on the borders between two or more States”,6 This agreement seeks to include different levels or types of waters, such as surface waters. However, some bodies or water sources are overlooked, for example, wetlands, which are usually subject to international protection through the Ramsar Convention, but within the limits of protection given to an internal resource. Regarding groundwater, when including those belonging to the water table, there is no certainty concerning the inclusion of these aquifers since they are found at depths surpassing this layer. In fulfillment of its main objectives, the convention has been successful in facilitating the creation of cross-border agreements, establishing joint institutions for the management and administration of water, and in strengthening cooperation in the pan-European region. These achievements have occurred in very different circumstances, including in the context of the economic transition and political tensions, after the dissolution of the Soviet Union, Yugoslavia, and Czechoslovakia.7 In addition to being an international legal instrument, it has facilitated interstate cooperation. Though it is characterized by the absence of specific obligations and compliance with deadlines, it has contributed to the definition of normative

5

Torres (2000), p. 229. Economic Commission for Europe (1992), art.spiepr146 1. 7 Economic Commission for Europe (1992). 6

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parameters, as well as the creation of inter-party agreements, joint administrative bodies and has provided advisory services to the parties. In addition to this, the Water Convention has impregnated its normative principles and generalities in inter-party agreements concerning internationally shared waters. This is because the international waters regime has been established in numerous bilateral or multilateral treaties, which consecrate ad hoc solutions, such as protection measures that apply to specific watercourses; this leads to a great diversity of regimes that hinder a synthetic vision of the rules applicable to the subject. However, the Water Convention is the exception to the general rule; it contains elements of consensus of the States and reflects the state of international law on the matter or, at least, constitutes a framework of general principles that should guide the conduct of the states.8

4 Non-navigational Uses and the United Nations The United Nations’ Convention on the Law of Non-Navigational Uses of International Watercourses of 1997, or the New York Convention (NYC), is the only universally applicable treaty for shared freshwater resources. It is a framework convention. That is, it provides a general scope of principles and standards that can be applied and adjusted to the characteristics of a given international watercourse.9 In contrast to the Water Convention, this Convention has had a greater international role both in doctrine and States’ legal practice, despite its ratification not being entirely successful in some continents. The NYC begins with Resolution 2669 (XXV) by the General Assembly of the United Nations. It was approved by the same UN body and adopted on December 8, 1970. The International Law Commission (ILC) is entrusted with undertaking the study of the law concerning international watercourses for non-navigational uses, aiming towards their progressive development and codification, and following a work program to adopt the relevant measures.10 The progress made by the ILC over almost 30 years concludes with the opening of the convention for ratification. Its anticipated low global reception, especially by the Latin American States, will be addressed later. The convention includes mainly measures of protection, conservation, and management regarding the uses of international watercourses. These measures refer to the maintenance of their quality, the protection of biological resources, the control of floods, as well as erosion, sedimentation, and the intrusion of saltwater.11 The reference to non-navigational uses was a topic of great interest to the ILC, which

8

Castillo (1999), p. 129. McCaffrey (2009), pp. 1–4. 10 General Assembly of the United Nations (1971), p. 217. 11 Maghfour (2008), p. 219. 9

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at its twenty-sixth session (1974) indicated that it would be convenient to establish the activities included within the term. For this, the Commission gathered state opinions concerning the variety of uses that the Commission should consider drafting the international agreement.12 To clarify the term non-navigational uses, the ILC categorizes them into three main groups: (i) agricultural, (ii) economic-commercial, and (iii) domestic-social. The first category includes activities, such as irrigation, drainage, waste disposal, and production of water-sourced food. The second category includes activities such as energy production (hydroelectric, nuclear, and mechanical), the manufacturing industry, construction, other means of transport other than navigation (such as floating wood), and the elimination of waste and its extraction. The third group is associated with human consumption, waste disposal, and recreation (swimming, sports, fishing, boating, and others).13 However, the Convention did not adopt such a classification; it included the intuitive and straightforward formula for uses other than navigation.

4.1

International Watercourses and Vital Human Needs

Despite what was mentioned before, within the non-navigational uses, the notion of “vital human needs” had greater legal importance in the formulation of non-navigational uses. Under Article 10, these needs are considered a priority that requires special protection. The convention provides that no use of an international watercourse has priority over others; however, if a conflict is generated, the satisfaction of these needs will be considered. Article 10 must be interpreted as provided in the second paragraph of Article One, which states, “the use of international watercourses for navigation does not fall within the scope of this convention except to the extent that other uses affect navigation or are affected by it”.14 The Article in question seems to explain that the ambiguity regarding non-navigational uses is guided by vital human needs and the principle of fair and reasonable use, and the intention to avoid sensitive damages as components for the establishment of a fair regime.15 According to McIntyre,16 however, the issues that can be considered for the concept of non-navigational uses are still uncertain. The ILC sessions of 1994 to draft the Articles offer no additional clarity concerning the application of this factor. The primacy of vital human needs included in the Convention is linked to the notion of the human right to water, and even though this does not mean that the

12

United Nations (2008), p. 468. McIntyre (2007), p. 51. 14 United Nations General Assembly (1997), art. 1. 15 Ibid., arts. 5–10. 16 McIntyre (2007), p. 156. 13

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New York Convention includes an explicit mention of the right to water, it is implicitly considered. This broad interpretation is compounded by the current international debate on the recognition of the human right to water, which, compared to international watercourses as a transboundary asset shared by States, acquires important legal consequences that will be addressed in the concluding section of this chapter.

4.2

The Coming into Force of the Convention on the Law of Non-Navigational Uses of International Watercourses

About the recent entry into force of the NYC, a delay can be observed since the beginning of the studies for the formulation of the articles began in the seventies. This is remarkable because, during that time, concerns for environmental issues began to emerge worldwide and, in turn, the conferences and international conventions, to generate a legal framework for environmental protection, which, concerning the field of international watercourses, emanates from the initiative of the General Assembly of the United Nations. The International Law Commission initiated the formulation of the project of the current NYC in 1974, in compliance with the resolution of the General Assembly approved in 1970.17 The first project was approved on June 27, 1991 and contained 32 articles on the use of watercourses.18 During the preparation of the project, five special rapporteurs guided the work until 1994, concluding with the approval at the second reading of a draft of 33 articles.19 Later, in 1994, the General Assembly of the United Nations decided to convene a plenary workgroup to prepare a framework convention based on the drafted articles approved by the ILC. This group met for 3 weeks in October 1996 and 2 weeks in March and April 1997; finally, the text of the convention was approved on May 21ST, 1997.20 The New York Convention was approved by a majority of 103 votes against three (Burundi, China, and Turkey) with 27 abstentions.21 Regarding the entry into force and as it is stated in Art. 36 of the Convention, at least 35 countries should have ratified it. The last ratification took place on May the 19th, 2014, and came into force on August 17th, 2014. Upon that last ratification of the convention, none of the countries in the Americas ratified it (only Paraguay and Venezuela signed it). On the contrary, most European countries ratified it, 16 in total and 14 of those belonging to the EU, followed by Africa (12), the Middle East (5), and Asia (2 countries).22 17

McCaffrey (2009), p. 1. Maghfour (2008), p. 218. 19 McCaffrey (2009), p. 2. 20 Ibid., p. 2. 21 Maghfour (2008), p. 218. 22 Sereno Rosado (2014), p. 823. 18

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Despite its hydric richness and potential, the Latin American continent has remained on the sidelines. Because NYC is considered an important framework legal instrument, which consolidates many of the rules of customary international law on the subject, this Latin American indifference could trigger future interstate conflicts because of the absence of legal environmental regulation. Most of the countries that ratified are members of the European Union; in practice, the Water Framework Directive (WFD) is being applied there. What is worrying is that the States that contributed the most to the drafting of this convention have not ratified it, and a clear majority of those who ratified it are not applying it.23 The central paradox of the above is that, unlike the New York Convention, the WFD is not based on the “Anglo-American common law of riparian rights” but on the idea of integrated watershed management and prior planning.24 One of the characteristics of Common Law is the so-called full rights riparian system, according to which the owner of a property has unrestricted use of its waters for ordinary uses and other uses if it does not harm the other riparian residents quantitatively. As for the quality, the water should not be altered by its normal uses or other uses. All the riparian-generated disputes are solved, as a general rule, by domestic courts. This full-rights riparian system is, at least partially responsible for the numerous litigations in matters of waters between the North American States, and it has considerably influenced the New York Convention.25 Concerning the EU member states, the clear majority is based—with the peculiarities of the respective legal traditions—on the concept of water domain, as well as on administrative intervention in the management of resources. This system tends to avoid the appearance of conflicts and the recourse to judicial or arbitration bodies. This legal tradition, mainstream in the EU, substantially influenced the Water Framework Directive (WFD) in application since October 2000.26 However, the ratification of the New York Convention by the member countries of the EU is controversial in states where the WFD also applies, for example, in Spain, where in practice only the latter applies.27

4.3

Inter-Party Agreements and the Convention on the Law of Non-Navigational Uses of International Watercourses

Traditionally, the protection of watercourses, from an environmental perspective, has been carried out predominantly through bilateral or multilateral agreements

23

Ibid. Ibid., p. 817, 813. 25 Ibid., p. 817. 26 Ibid., p. 817. 27 See state of ratifications in https://treaties.un.org/Pages/showDetails.aspx?objid¼080000028002 5697. 24

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because these international legal instruments have been opened for signature recently and their ratification has increased. However, scant ratification, lack of state interest in being bound by agreements that may conflict with previous interparty agreements (even though the New York Convention establishes that the agreements prior to its entry into force will be respected),28 and a diminished political concern for environmental issues, add to the challenges of these instruments from the sphere of the international agenda. Article Three of the New York Convention makes clear its residual status concerning the rights and obligations derived from international treaties prior to their ratification. This is because watercourse states remain free not only to apply their standards but also to adapt to the characteristics and uses of a given watercourse, and thus to establish exceptions.29 The negotiating states of the convention promoted this residual nature so as not to affect previous bilateral or multilateral agreements, which have been the traditional and predominant way to establish management, administration, and environmental legal protection measures. To assess the protection of international watercourses, approaches established from specific cases are required; in which the different inter-party legal instruments are considered to determine their effectiveness regarding environmental protection and preservation. Similarly, the study of specific cases can confirm the need for the regulation-driven by the United Nations or other international organizations, such as the UNECE. This approach to specific cases is not intended to be exhaustive, merely illustrative, seeking to analyze cases from different latitudes for states recognized for their richness in water resources or conflict in their cross-border administration.

5 Approach to the Legal Protection of Specific International Watercourses Having analyzed the legal instruments for the international protection of international watercourses from the approach of framework conventions or with the intention of bringing together a considerable number of states (Water Convention and the New York Convention), it is necessary to address their legal protection by specific cases. This is because, traditionally, the issue has been regulated through specific agreements between the parties that share the resource, in line with the geographical, political, economic, and social characteristics inherent in each watercourse. Although carrying out a generalized study of all these transboundary water

28 The New York Convention in its third article, numerals 2 and 3 states that its provisions will not affect rights or obligations contained in previous agreements entered by the States. However, it warns that if the parties agree, they may harmonize its standards, or complete future agreements adapted to its provisions. 29 Maghfour (2008), p. 223.

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resources would be an onerous endeavor, for this chapter, some of the most prominent cases in various latitudes have been selected.

5.1

The Case of the Senegal River

According to figures by UNESCO, the Senegal River Basin covers an area of approximately 300,000 km2. The high plateau of northern Guinea occupies 31,000 km2 (11% of the basin), 155,000 km2 are found in western Mali (53% of the basin); 75,500 km2 in southern Mauritania (26% of the basin), and 27,500 km2 in northern Senegal (10% of the basin). The basin consists of three distinct parts, the upper basin, which is mountainous; the valley (divided into high, medium, and low); and the delta, a wetland area of high biological diversity. Most of the Senegal River Basin has a sub-Saharan desert climate, intensified by rather extended periods of drought during the 1970s. Access to enough suitable quality water is, therefore, particularly sensitive and crucial for the economy and the health of the population.30 Throughout history, the legal protection of the Senegal River has been subject to multiple international agreements, both in the colonial era and in the postindependence period of the coastal countries. In the current international legal framework, the Convention on the Legal Status of the Senegal River was signed on March 11, 1972, in Nouakchott, Mauritania. This convention establishes that the Republics of Mali, Mauritania, and Senegal are part of this international watercourse. On the same date, under this agreement, the parties also signed the agreement established by the Organization for the Exploitation of the Senegal River (OMVS) as a joint unit of cooperation and development.31 The OMVS seeks to promote cooperation among the states and coordinate technical studies and development and regulation activities of the river’s flow, to meet the needs of irrigation, power generation, and navigation. Since its creation, the OMVS has shown great dynamism, especially manifested by the construction of the Diama and Manantali Dams.32 However, it should be noted that some consider these dams harmful, as they have caused flooding in the Senegal River Valley, impeding access to fresh water, deteriorating soils by increasing salinization, and destroying the arable land. Because of the construction of these dams, the flooded territories have lost their arable potential, as well as other natural resources, hampering the population’s possibilities of carrying out their economic activities.33 Although the Diama Dam was completed in 1986 and the Manantali Dam in 1988, the tremendous environmental impacts of their entry into operation led to the signature, in 1997, of two agreements for the administration and management of

30

United Nations (2003a), p. 450. Organization pour la Mise en Valeur du Fleuve Senegal. 32 Author’s translation. Niasse (2004), pp. 27–28. 33 Kabunda (2008), p. 5. 31

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these dams and their hydroelectric plants, creating the Diama Dam Management and Operation Agency (SOGED) and the Manatali Dam Management and Operation Agency (SOGEM).34 Because of the controversy unleashed by the mentioned works and their impacts, the Statute of the Senegal River of 1972 establishes that for the operation and management of the river for agricultural or industrial purposes, the party states must obtain prior approval of any project that changes the river’s characteristics.35 The Convention also guarantees the traditional concern of States for the freedom of navigation and reflects a more recent concern regarding equality in all forms of use of its waters. In 1978, the member states of the OMVS signed the Convention on the Legal Status of the common elements, which provides (among other matters related to the administration of the facilities that are built in the river) that hydraulic and electrical infrastructures, such as dams, transmission lines, port infrastructure, and others, that take place within the framework of the organization will be the universal and indivisible property of the member States.36 On May 12, 1982, in Bamako, Mali, the Convention on the Modalities of Financing of Joint Works was issued, following this Convention. This agreement establishes the financing mechanisms of the OMVS, such as contributions, loans, subsidies, joint guarantees to lenders, and distribution of costs and expenses.37 Two more agreements have been recently brought forward for the preservation and protection of the Senegal River. The first is the Water Charter, which was signed in May 2002; it expresses the principles that should govern the management of the waters in the basin. This Charter combines standards, modalities, and mechanisms for the shared management, as well as operational mechanisms on the modulation of optimal management options, based on the hydrological behavior of the river.38 For Diagne,39 the Senegal River Water Charter strengthens and consolidates the legal framework of this international watercourse; its strength has been evidenced over time. The second agreement is the Treaty of Accession of Guinea of 2006, by which this country became a full member of the OMVS. Following this accession, Guinea assumed the Oganization’s provisions, the 1972 Convention, which established the OMVS, concerning the Legal Status of the Senegal River, the 1978 Convention on the Legal Status of common elements, the Senegal River Water Charter of 2002, and the resolutions and recommendations of the XIII Conference of Heads of State and

34

Diagne (2004), p. 172. Ibid. 36 Author’s translation. Niasse (2004), pp. 27–28. 37 Organization pour la Mise en Valeur du Fleuve Senegal, http://www.portail-omvs.org/ presentation/cadrejuridique/conventions-base. (own translation). 38 Organization pour la Mise en Valeur du Fleuve Senegal, http://www.portail-omvs.org/ presentation/cadre-juridique/charte-deseaux. (own translation). 39 Diagne (2004), p. 173. 35

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Government of the OMVS of May 2003.40 With this accession, the four countries that share the flow of the Senegal River were included in the OMVS as a mechanism for the protection and preservation of this international watercourse. This step was definitive and necessary to achieve cooperation given the underlying conflicts regarding water between these states. It is important to note that of the border countries that share the Senegal River, none have ratified the New York Convention or the Water Convention. This evidences the scarce ratification of these two instruments, despite their claim to be binding treaties for most of the members of the United Nations. Although the Senegal River is of immense importance, not only for the States that share this watercourse but also for the African continent, the universal norms that regulate non-navigational uses from an environmental perspective are not applicable because of the non- ratification by any of its riparian parties.

5.2

The Case of the Nile River

This international watercourse has a length of 6695 kilometers, of which 4149 kilometers are navigable. Its basin has an area of 3,176,543 km2. The coastal countries that share it are Burundi, Congo, Egypt, Ethiopia, Eritrea, Kenya, Rwanda, South Sudan, Sudan, Tanzania, and Uganda. The Nile basin is characterized by high climatic variability, a low percentage of rainfall reaching the main river, and unequal distribution of water resources. Potential evaporation rates in the Nile region are high, making the basin particularly vulnerable to drought. The quality of Nile waters has deteriorated because of population growth, as well as the intensification of agriculture and industrial development. Environmental sanitation is deficient along the basin, resulting in high bacteriological contamination close to urban centers.41 Egypt has taken enormous advantage of its privileged geographic situation on the Nile and has arranged its military power to dissuade its neighbors from undertaking any claim. However, the need for water increases throughout the region, encouraging the shifting of its watercourse. From the Egyptian point of view, the control of the Nile and all its headwaters is indispensable for the country’s survival and prosperity.42 The dependence of the countries of the region on the Nile is remarkable because of factors such as the geostrategic situation of Egypt with respect to its waters, the scarcity of the resource, and the climatic circumstances that make water vital for human survival, agriculture, and industry. Historically, the Nile River has been strategic for the development of coastal states and the subsistence of the population. Since colonial times, its waters have

40 Organization pour la Mise en Valeur du Fleuve Senegal, http://www.portail-omvs.org/ presentation/cadre-juridique/traitedadhesion-guinee. 41 Nile Basin Initiative (2012), p. 12. 42 Klare (2003), p. 352.

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been subject to multiple interstate agreements,43 which are, in turn, subject to different interpretations that vary according to the interests of coastal states other than Egypt and Sudan. The post-independence succession of the states raises doubt on the significance of the treaties of the former “administrative power”. In the postindependence era, Egypt has been a pioneer in promoting agreements for the administration of the Nile, seeking to maintain the essence of colonial agreements. Among the most recent, Majzoub44 highlights the following: – The Hydro-Meteorological Monitoring of the Drainage Areas of lakes Victoria, Kyoga, and Alberto Project (HYDROMET, 1967–1992). – The Agreement for the establishment of the Organization for the Management and Development of the Kagera River Basin in 1977. – The Lagos Plan of Action for the Economic Development of Africa in 1980 (catalyst for the creation in 1983 of the Undugu group, [fraternity], 1983–1999). – The Declaration of Khartoum between Ethiopia and Sudan in 1991. – The Technical Cooperation Commission for Promotion of the Development and Environmental Protection the of the Nile River Basin in 1992 (TECCONILE, 1992–1999). – The framework of general cooperation between Egypt and Ethiopia of 1993, and – The Lake Victoria Environmental Management Project of 1996. It is necessary to emphasize that the Nile Basin Initiative (NBI) is a regional intergovernmental strategy seeking to promote the cooperative development of this international watercourse to share the socio-economic benefits, promote peace, as well as regional security. The water ministers of Burundi, Congo, Egypt, Ethiopia, Kenya, Rwanda, South Sudan, Sudan, Tanzania, and Uganda launched this initiative on February 22, 1999; Eritrea participates as an observer. The NBI provides to the riparian parties an inclusive regional space for the exchange of information, joint planning, and the management of water and resources associated with the basin.45 “However, it has been difficult for the organization to establish a definitive treaty on the use and rights of the waters of the Nile since Egypt and Sudan are opposed because they would lose the rights they acquired in the 1959 treaty”.46 The Council of Ministers of the Nile (Nile-COM) is the political organism of the Nile Basin Initiative. It is made up of the ministers of water affairs of each Member State and is supported by the Nile Technical Advisory Committee (Nile-TAC),

43

During the time of colonization, the Nile was in the zone of influence of Great Britain, which watched zealously to maintain its presence in the area. This constant concern resulted in the signing of a series of agreements between 1890 and 1949 with Germany (July 1, 1890), Italy (April 15, 1891 and December 13, 1906), Belgium (May 12, 1894 and May 9, 1906), France (December 13, 1906), Ethiopia (May 15, 1902), and Egypt (May 7, 1929 and May 31, 1949). Tarek Majzoub, “Management of Shared Water Basins (Conflict versus Cooperation). Case study: the Nile basin.” Anuari IEMed de la Mediterrània, No. 5, (2008): 144. 44 Majzoub (2008), pp. 145–147. 45 Nile Basin Initiative (n.d.). 46 Suárez (2013), p. 18.

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which is composed of 20 senior government officials, two from each of the member states. The parties opened the Nile Basin Cooperative Framework Agreement for signature during Nile-COM’s XV ordinary held on June 24 and 25, 2007, in Entebbe, Uganda.47 Some of the clauses in this agreement “always present problems, which are subsequently sent to the heads of state to make their judgment. However, once ratified, this agreement will be the first instrument that regroups all the states of the Nile basin”.48 Although the agreement was not signed in 2007 because of a lack of consensus between the parties, Ethiopia, Kenya, Uganda, Rwanda, Burundi, and Tanzania ratified the agreement in 2010; Ethiopia decided to do so in 2013. The outlook for this treaty was not very optimistic, though the Congo was expected to sign it; Egypt and Sudan were decisively opposed, especially to Article 14, which refers to the distribution of water. According to this last aspect, the parties are mandated not to affect the water security of other coastal states. For some, the NBI has been a failure since it has not reached an agreement regarding the framework cooperation agreement, and it could end up triggering an armed conflict in the face of water scarcity. For others, it is an approach to a consensus since approval was achieved for most articles. Finally, it should be noted that none of the states associated with this international watercourse, which can be considered the most important in Africa, has ratified the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, or the Convention on the Law of the uses of the Non-navigation Uses of International Watercourses. Once again, the absence of effective regulation is confirmed, both by the lack of ratification of the international legal instruments promoted by the UN, and inter-party instruments, placing the continent’s most important water resource with the highest rates of water scarcity, in a precarious situation caused by the severe lack of legal protection, and increase its potential as a source of even warlike conflict because of issues pertaining to access to water.

5.3

The Case of the Rio Bravo-Río Grande

This river is called the Rio Bravo in Mexico and the Rio Grande in the United States of North America. It has an extension of three thousand kilometers and is the main border between these countries. In Mexico, it flows through five states (Chihuahua, Coahuila, Nuevo León, Tamaulipas, and Durango), and three in the United States (Colorado, New Mexico, and Texas). The river crosses three ecological regions (the southern Rocky Mountains, the Desert of Chihuahua, and the Tamaulipas thorn

47 48

Nile Basin Initiative (n.d.). Majzoub (2008), p. 143.

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scrub). It has various habitats, such as riverine forests, marshes, swamps, deserts, and the coast.49 The Rio Bravo/Grande has been a geographic delimiter of the borders between Mexico and the United States. Throughout history, there have been multiple agreements regarding water limits and distribution. For this reason, the river is characterized by its legal and institutional fragmentation regarding water management in the basin. These shared waters between the United States and Mexico are governed by a disconcerting number of binational treaties, interstate pacts, reclamation projects, water rights, and contracts; which are, in turn, implemented by a series of government agencies at the international, national, state, and local levels.50 Of the numerous international legal instruments applicable to this international watercourse, it is necessary to highlight the treaty concluded in 1944, for the distribution of the international waters of the Colorado, Tijuana, and Bravo Rivers, from Fort Quitman, Texas, to the Gulf of Mexico. The primary objective of this treaty is to regulate the use of water for navigation purposes, considering that the use of these waters in other uses and consumptions is in the interest of both countries; thus, the rights of the two republics on the rivers in question are fixed and delimited with this treaty. The International Boundary and Water Commission (IBWC), to which the Treaty assigns powers and obligations in Article 24, is entrusted with the administration of the waters of the Rio Bravo/Grande.51 An essential aspect of this treaty is the allocation of quantities of water from the Rio Bravo/Grande between the two riparian countries. To this end, specific criteria set forth therein must be considered to define the percentages provided by each state. These criteria are relevant because they are set for each case, considering the waters that reach the main stream of the watercourse and those from other rivers or dams. Based on these criteria, water quotas are generated that each state must contribute annually. This allocation of water quotas contributed by each State is accounted for in 5-year periods and should not be less than an average annual volume of 432 million cubic meters. Any deficit in a given period is covered in the following.52 Because of various circumstances, including the severe drought of the nineties, Mexico accumulated a deficit in these deliveries that reached levels close to two billion cubic meters.53 This deficit led to a crisis between the parties; this is

49

Organization of American States (n.d.). Ibid. 51 Treaty between the Government of the United Mexican States and the Government of the United States of America of the distribution of the international waters of the Colorado, Tijuana and Bravo Rivers, from Fort Quitman, Texas, to the Gulf of Mexico (1944), art. 24. 52 Ibid. Article. 4. In cases of extraordinary drought or serious mishap in the hydraulic systems of the Mexican affluents, which make it difficult for Mexico to drain the 431,721,000 cubic meters (350,000 acres per year) that are assigned to the United States as a minimum contribution of the mentioned Mexican tributaries, in section c of paragraph B of this article, the shortages that exist at the end of the cycle referred to in 5 years will be replaced in the following cycle with water from the same tributaries. 53 Aguilar (2006), p. 285. 50

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evidenced in the statements made by the Mexican President, Vicente Fox, in his meeting with the US President, George W. Bush, in February 2001. Fox stated that he was prepared to negotiate matters related to the water of the Rio Bravo/Grande globally.54 From the preceding, we can see that the existence of international legal instruments for the “protection” of an international watercourse is insufficient since its application may result in situations that are not “fair and reasonable” (one of the principles of the New York Convention). However, although in principle the treaty in question appears to include provisions only referring to navigation, it is necessary to highlight that it also contains regulations regarding other uses addressed by the IBWC, favoring the following order of priority (i) domestic and municipal uses, (ii) agriculture and livestock, (iii) electric power, (iv) industrial uses, (v) navigation, and (vi) fishing and hunting. In the same sense, concerning other uses, the treaty provides that the two countries can drive, derive, and use the water that belongs to them, for which they can build the necessary works. However, no derivation or use may be made by either of the two countries other than those existing on the date of entry into force of the treaty.55 The role of the IBWC regarding non-navigational uses is decisive. It must authorize the derivation and use of waters that do not entirely correspond to the country that intends to use it, provided that the water belonging to the other country can be derived or used without prejudice and replaced elsewhere in the river, and the counterpart does not need or cannot use it. The countries have the right to derive any quantity of water from the main channel of the river, including the water belonging to the other country, to generate hydroelectric energy, provided that such derivation does not harm the other country. Likewise, the use of the river channel for discharge of floodwater or other surpluses will be free and unlimited for both countries, and neither of them will be able to present claims to the other for damages caused by this use.56 These provisions are problematic because they include subjective factors that affect how the positions of the States may differ on a subject. For instance, when considering whether the damage was caused or when addressing others that depend on correct and meticulous management, such as the replacement in other parts of the river of waters belonging to another country. However, regarding the management, the central conflicts between the parties have occurred because the “management of the sector does not correspond to the challenges established, there are no improvements in the registration and control of users, and in the collection and sanction mechanisms. Perhaps the main problem with water has to do with its management”.57

54

Sánchez (2004), p. 177. Treaty between the Government of the United Mexican States and the Government of the United States of America of the distribution of the international waters of the Colorado, Tijuana and Bravo Rivers, from Fort Quitman, Texas, to the Gulf of Mexico. Op. Cit., arts. 3–9. 56 Ibid., arts 3–17. 57 Aguilar (2006), p. 285. 55

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On the other hand, of this watercourse, it is important to highlight the regional strategy for the sustainable use of the Rio Bravo, which is currently being carried out by the Organization of American States (OAS). This with the purpose of generating a comprehensive development framework of coordinated management of the Rio Grande basin by its primary water users to facilitate the most efficient use of water in the entire basin. This strategy includes activities with the population that inhabits the basin, and protection of biodiversity, as there are threatened and endangered species. However, for the OAS, a critical limitation in the execution of the strategy for the sustainable use of the River are the obligations of the states to deliver specific water quotients between each other, as well as in various parts of the basin, which severely complicates the holistic and integrated use of the river.58 The regional strategy for the sustainable use of the Rio Bravo is developed because the basin is notoriously affected by pollution and the periods of drought are increasingly recurrent. However, the future looks even more worrisome as the levels of water availability per capita are reduced. The country and the region will noticeably decrease their availability. In the case of the Rio Grande, it will go from a very low to an extremely low level.59 This situation predicts conflicts between states in the legal field and the need to establish modern and protectionist legal instruments that can avoid further contamination or peacefully resolve the shortage of the resource. Once again, in this case, study, the Bravo/Grande international watercourse, which is one of the most important in North America because it is the longest (of a transboundary nature), has generated conflicts between its two riparian parties produced by distribution and water scarcity. Neither of its two coastal states has ratified either of the two framework instruments for the protection of international watercourses, namely, the Water Convention and the New York Convention, increasing the possibility of conflicts between these two states, given their high water demands and the low availability of the resource; this can even be defined as a contest for the human right to water or to satisfy basic human needs of the nationals of both countries.

5.4

The Case of the Mekong River

The Mekong River is one of the most extensive river systems in Southeast Asia. Worldwide, it ranks twelfth in longitude and sixth in annual average discharge. The spring of the Mekong is high on the eastern plateau of Tibet, from which it descends rapidly through steep waterfalls in the province of Yunnan in southwestern China. The lower half of the Mekong traverses Laos, Thailand, Cambodia, and Vietnam. It

58 59

Organization of American States, Op. Cit. Aguilar (2006), p. 289.

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is mostly a lowland river, characterized by very steep downhill currents and a vast channel system of unlimited or partially bounded by bedrock.60 On April 5, 1995, the Governments of the Kingdom of Cambodia, the Lao People’s Democratic Republic, the Kingdom of Thailand, and the Socialist Republic of Vietnam signed the Agreement for Cooperation for the Sustainable Development of the Mekong River Basin.61 The purpose of this agreement was the sustainable development, utilization, conservation, and management of the Mekong river basin and its associated water resources. The agreement aimed to minimize the harmful effects of natural events or human activities; thus, it contemplates the multiple uses of the river, such as irrigation, production of hydroelectric energy, navigation, flood control, fishing, transport of floating wood, recreation, and tourism.62 The Cooperation Agreement of the Mekong River includes principles such as fair and equitable use, sovereign equality and territorial integrity, and provisions regarding the maintenance of flows, prevention and cessation of harmful effects, the responsibility of the State for damages, emergency situations, provisions related to freedom of navigation, and rules regarding recreational use, among others. In its second section, the agreement refers to the Mekong River Commission and its three permanent organs: The Council, the Mixed Commission, and the Secretariat. The agreement also contains another set of provisions regarding the procedures in case of disputes and differences. The final provisions include rules on the entry into force, amendments, modifications, terminations, accessions, suspensions, withdrawals, and registration of the agreement.63 The Mekong River Commission in South-East Asia is one of the most elaborated examples of cross-border integrated forest and water management programs. It covers 795,000 km2 in six riverine countries and more than 60 million people.64 This Commission has been praised for being a progressive institution and model for the world. However, with the advancement of the Mekong and its tributaries, the effectiveness of the legal regime in support of the integrated management of its water resources has become questionable. More than 10 years of experience have shown that there are aspects of the Mekong Agreement that must be strengthened to ensure the environmental, economic, and social benefits it promises.65

60

Hashimoto (2001), p. 6. Among the most bitter enemies who have negotiated legal agreements to share water (. . .) Cambodia, Laos, Thailand, and Vietnam, supported by the United Nations, have been able to cooperate since 1957 in the Framework of the Mekong River Commission, formerly known as the Committee of the Mekong, and they maintained technical exchanges during the Vietnam War. López (2009), p. 99. 62 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, Chiang Rai, Thailand, 1995. 63 Ibid., arts 11–42. 64 Zingari and Achouri (2007), p. 57. 65 Bearden (2010), p. 798. 61

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The case of the Mekong River is highlighted since it is a model in which the participating countries have begun to put into practice a framework of cooperation, which indicates the desire to achieve a form of integrated management. Although considerable progress has been made, the results are still far from ideal. Among the main reasons for this is the lack of institutional capacity for multi-jurisdiction of the cooperation authority and its counterpart organizations in each of the participating countries, together with the lack of political unity to develop prioritized integrated management. The example of this watercourse serves as the basis for other organizations of international transboundary basins for the effectiveness of the administrative management and the management of the multiple uses, although the development of the region has been supplied at the cost of the use of the river. In the case of the Mekong River, only Vietnam adhered, on August 17, 2014, to the Convention on the Law of the Uses of International Watercourses for Non-Navigation Uses. Therefore, the outlook is not very promising for this “framework” convention with the highest claims of universality within the United Nations system. As a result, Laos, Thailand, and Cambodia have remained outside the ratification of this instrument; the same applies to all the riparian parties concerning the Water Convention. Ultimately, the Mekong international watercourse, like the other cases mentioned here, is outside of the global legal instruments of protection and in line with the application of inter-party or inter-riparian instruments.

5.5

The Case of the Syr Darya River

The Syr Darya River is one of the two large basins that feed into the Aral Sea and cross four of the five countries that make up the Central Asian region. The Syr Darya was born in the Pamir and Tien Shan mountains, located east of Kiguistán, and it is their glaciers that feed its initial flow, to finally flow into the Aral Sea, contributing to 30% of its surface water. In its route, the River covers an area of 402,800 km2 distributed as follows: Kyrgyzstan 35%, Uzbekistan 19%, Tajikistan 3%, and Kazakhstan 43%. Its total length is 3020 km, minus 2337 when subtracting the stretches of the confluent rivers, making it the longest river in the region.66 One of the principal international agreements for the protection of this river is the Cooperation Agreement for the Common Management, Use, and Protection of Water Resources from Inter-State Sources of the Syr Darya Basin, signed on February 18, 1992, between Kazakhstan, Kyrgyzstan, Uzbekistan, Tajikistan, and Turkmenistan. On the issue of international watercourses, the regulation is consistent with the “principles and continuity of allocation quotas of water flows established in the Soviet model, which is structurally unsatisfactory from the environmental point

66

Fierro González (2007), p. 158.

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of view, but that the five States Central Asians expressly confirmed by the joint declaration of October 12, 1991”.67 The Cooperation Agreement for the Common Management, Use, and Protection of Water Resources from Inter-State Sources of the Syr Darya Basin of February 1992, contemplates principles such as equal rights regarding use and responsibility for sensible use. Of the many party obligations contained in the treaty, the first is the duty to prevent actions that harm the interests of their counterparts, cause damage, modify agreed water discharges or cause pollution. The second commitment is to carry out joint works for the solution of ecological problems. The third commitment is to facilitate the exchange of information on scientific, technical, use, and protection advances. It is worth noting that the agreement provided for the creation of the Interstate Commission for Water Coordination of Central Asia (ICWC), which seeks to establish a water policy in the region according to the existing needs, as well as to determine the complex and rational use of water resources and annual consumption limits for each party and for the region.68 Continuing with the ICWC, this institution has some contradictions in its regulation, which substantially limit its capacity. Additionally, it uses a single-sector approach, which does not seem to be the best forum to carry out actions of a multisectoral nature nor to achieve interactions between governments. This is evidenced by the fact that a global agreement for water management that sought to integrate all coastal states of the Aral Sea (which has practically desiccated due to droughts) has been blocked since April 2007. Like in the cases previously discussed, committees or other types of organizations are responsible for the management and administration of international watercourses, evidencing that there are deficiencies concerning their legal competencies to exercise their activities effectively. Regarding this agreement, the commitment of the parties regarding the desiccation of the Aral Sea (origin of the Syr Darya River’s flow) is noteworthy. Their endeavor includes establishing the volume of annual discharges and withdrawals, considering many years of drought.69 This situation has been caused by the overexploitation of the Syr Daria River all along its course, causing a reduced flow into the Aral Sea and producing its dryness while leaving the exposed land with toxic residues and corrosive salts. Sandstorms then spread this waste, causing chronic health problems to millions of inhabitants.70 Another essential agreement related to the Syr Darya international watercourse was signed on March 17, 1998, in partnership with the Council of the Central Asian 67

Campins (2009), p. 4. Author’s translation. Agreement between the Republic of Kazakhstan, the Kyrgyz Republic, the Republic of Tajikistan, Turkmenistan and the Republic of Uzbekistan on cooperation in interstate sources water resources use and protection common management. Almaty, Kazajistán, 1992. Articles 1, 3, 4, 5, and 8. 69 Author’s translation. Agreement between the Republic of Kazakhstan, the Kyrgyz Republic, the Republic of Tajikistan, Turkmenistan and the Republic of Uzbekistan on co-operation in interstate sources’ water resources use and protection common management. art. 4. 70 Cabrejos (2005), p. 11. 68

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Economic Community (CEAC), which corroborates the trend in the area, exchange of water for energy, from Kyrgyzstan to Kazakhstan, and Uzbekistan. According to this agreement, the additional electricity generated by the river during the flood seasons compensates for the normal use of petrol for energy.71 Indeed, provisions such as these and situations of environmental unsustainability are what have led the Syr Darya to a severe crisis, where the economy takes priority over environmental preservation. The situation of the Syr Darya River basin shows mismanagement of international watercourses, associated with the lack of modernization of the rules governing their shared use. Traditionally, the Soviet Union had regulated the circulation of water and electricity through purely administrative means, providing the necessary funds and management for the maintenance of the entire infrastructure. Now, those limits have become, in many insurmountable cases, borders; causing a breakdown in the system. There is a constant confrontation between the “downstream” countries (Kazakhstan, Uzbekistan, and Turkmenistan), all of them avid water consumers for crops and their emerging populations, and the “upstream” countries (Kyrgyzstan and Tajikistan) whose mountainous territories are the sources of the water.72 Finally, it is worth noting that in this region of Central Asia, of the four riparian States of the Syr Darya, only two have adhered to the international treaties promoted by the United Nations concerning international watercourses. Kazakhstan acceded on April 11, 2001, to the Water Convention, as well as Uzbekistan on December 3, 2007. The latter also acceded to the New York Convention on August 17, 2014. Contrastingly, Kyrgyzstan and Tajikistan have not been associated with either of these two instruments. Thus, in the short or medium term, the possibility of any of the international legal instruments previously mentioned (Water Convention and New York Convention) being applicable to the Syr Darya is remote.

6 The Issue of the Human Right to Water Before International Watercourses After studying the two major international agreements promoted by the United Nations in pursuit of a universal “framework” agreement applicable to the environmental protection of international watercourses, and analyzing specific cases of cross-border shared resources, regulated by bilateral or multilateral agreements; this section will approach the subject of the legal protection of international shared waters. In other words, the impact of the existence and declaration, in some States, of access to water as a human right, or as harmonized by the New York Convention, calling it “vital human needs.”

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Campins (2009). Cabrejos (2005), p. 16.

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Based on the above, it can be said that the declaration of the human right to water is challenging, at the appeal of some soft law instruments employed by the United Nations (as will be seen later) or by some states since this directly affects internationally shared waters, making this issue central to the protection and regulation of international watercourses since their legal role can have a favorable or unfavorable impact on inter-state conflicts over shared water. Thus, to guarantee the human right to water, in cases of internal water scarcity or degradation, States appeal to these sources, which lack mechanisms of preservation, protection and rather contribute to the existence of conflicts between coastal states, aggravating and impairing the undertaking of this human right. The objective of this section is not to carry out an exhaustive analysis of the evolution and particularities of the human right to water. However, the state of current international law will be addressed, as this progressively affects the adoption of internal measures by states, and the emergence of an international trend or the future consolidation of legally binding instruments for the States. Although currently, this declaration of the human right to water and its impact on international watercourses is beginning to be a subject of debate and legal analysis, it is not less true that in a not too distant future, the academic community and international politics should analyze and define its implications, limits, and characteristics. Fittingly, the high importance of water for life led the United Nations General Assembly in 2010 to issue Resolution 64/292, which explicitly recognizes the human right to water and sanitation. This declaration implies that “the right to drinking water and sanitation is an essential human right for the full enjoyment of life and all human rights”. The resolution also urges the states and international organizations to provide financial resources and encourage capacity building and technology transfer through international assistance and cooperation, particularly to developing countries, to intensify efforts to provide the entire population with economic access to clean water and sanitation.73 Prior to this pronouncement, the Committee on Economic, Social, and Cultural Rights (OHCHR) adopted General Comment No. 15 on the right to water in November 2002. It recommends that the states should adopt effective measures to achieve the right to water without discrimination. Its second article states, “The human right to water is the right of all to have sufficient, safe, acceptable, accessible, and affordable water for personal and domestic use.” An adequate supply of safe water is necessary to prevent death by dehydration, reduce the risk of water-related diseases, and meet the needs of consumption, cooking, as well as the needs of personal and domestic hygiene.74 Resolution 7/22 of 2008 of the Human Rights Council was crucial in the process of declaration of water and sanitation as a human right. Under this resolution, an independent expert on the issue of human rights obligations related to access to drinking water and sanitation is appointed for 3 years. Among the expert’s functions

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United Nations (2010), p. 3. United Nations (2003b).

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is the dialogue with governments, competent organs of the United Nations, the private sector, local authorities, national human rights institutions, civil society organizations, and academic institutions to identify, promote, and discuss good practices concerning the access to drinking water and sanitation. Additionally, the expert will prepare a compendium of best practices and endorse the work with a study performed in cooperation with the instances with which the dialogue was initiated. This report by the Special Rapporteur on the human right to safe drinking water and sanitation focuses on the sustainability of the exercise of human rights to water and sanitation and examines how those rights can and must be respected in favor of current and future generations. It highlights the difficulties posed by its sustainability and the risks it faces in times of economic and fiscal crisis. After addressing the sustainability of the basic concepts of human rights such as “progressive fulfillment” and “non-retrogression,” it explains how the content and normative principles of human rights to water and sanitation contribute to making possible its sustainability. One of its primary objectives is the formulation of policies and programs adjusted to the norms and principles of human rights; it is a guarantee that these measures will persist for generations. In the same sense, the Resolution of the Human Rights Council 18/01 of 2011 embraces the recognition of the human right to safe drinking water and sanitation by the General Assembly and the Human Rights Council, and the affirmation, by the latter, of that the human right to safe drinking water and sanitation derives from the right to an adequate standard of living and is inextricably linked to the right, to the highest possible level, of physical and mental health, as well as the right to life and human dignity. In this resolution, the Human Rights Council urges the States to periodically monitor and assess the right to safe drinking water and sanitation, evaluate the policies, programs, and activities on the matter, and prepare comprehensive plans and strategies to progressively achieve the full exercise of the human right to safe drinking water and sanitation, as well as any other series of measures aimed at fulfilling the human right to water within the states. In May 2011, the World Health Organization (WHO) called on the states to develop national health strategies that contribute to the achievement of the Millennium Development Goals on water and sanitation and support the continuous exercise of the human right to water and sanitation. At the same time, it called on the General Director of the WHO to buttress collaboration with the corresponding partners and members of United Nations Water (UN-Water) and other organizations to promote access to good water, sanitation, and hygiene services, as well as serving as a model of effective intersectoral action in the context of the United Nations initiative, and cooperation of the organization with the United Nations Special Rapporteur on the human right to safe drinking water and sanitation. The recognition of the right to water implies that the liquid must possess specific characteristics; naturally, it does promote the fulfillment of human needs from water sources with quality or quantity deficiencies, as these can be inadequate, unhealthy, contaminated, or distant. Therefore, the United Nations Development Program emphasized what the General Comment 15 developed regarding the human right

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to drinking water, which must provide sufficient, safe, acceptable, physically accessible, and affordable water. These five attributes constitute the basis for water safety. They also represent the parameters of a human right that is broadly and systematically violated. For some 1.1 billion people, water in these conditions is hope for the future, not a reality of the present. Thus, it can be understood that the human right to water implies its provision in decent conditions for all individuals and involves the supply with the stated characteristics. However, it is necessary to highlight that, regarding water quality, there is no legal consensus, and to its effect, different parameters concur, as mentioned by Del Castillo: There are no universally established levels for water quality, only guidelines. As recognized by the World Health Organization, even for drinking water, there are different accepted parameters for each region. The quality of the water depends substantially on its destined use; this is reflected, for example, by European directives that distinguish between drinking water, water for bathing, and others. It is evident that water does not have the same requirement for irrigation as for drinking, bathing, and industry. That is one of the difficulties of legislating for water quality and applying adequate quality parameters.75

Consequently, in what corresponds to the human right to water, the quality of the liquid is that intended for domestic use and therefore requires a level of portability, and although these standards may vary, the right involves levels of quality optimal for human consumption that does not endanger life. According to Utrera Caro,76 “The WHO publishes guidelines for the quality of drinking water that can be considered, international guidelines on water quality and people’s health. These guidelines serve as the basis for the preparation of regulations and standards at the national level for states with varied economic situations”. However, there is a controversy regarding the human right to drinking water and its free access. The provision of the liquid with the characteristics mentioned in General Comment 15 involves the investment of economic resources, and the guarantee of this right cannot be understood as the simple permission of states regarding their citizens to take the water for human consumption in conditions that are not optimal. This entails problems related to quality and supply conditions; thus, about international watercourses, there is sovereignty over these and other state natural resources, and this leads to humanitarian conflicts over water in situations of scarcity or extreme degradation, disputes between citizens of different nations and, no doubt, between states. Thus, concerning the economic implications of the declaration of the human right to water, and among them its gratuitous nature, In January 1992, the thesis that drinking water should not be a free good was promoted at the International Conference on Water and the Environment, in which the Dublin Declaration was issued. However, in June of that same year, the United Nations Conference on Environment and Development, whose outcome (Agenda 21) is one of the most critical milestones

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Del Castillo (2013), p. 6. Utrera (2014), p. 50.

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in the field of environmental law, established that the protection of quality and the supply of freshwater resources is a global objective to meet the water needs of all countries for their sustainable development. In the same sense, the Declaration of Mar del Plata of 1977 declared that all peoples, whatever their stage of development and economic and social conditions, have the right to potable water in conditions of quantity and quality according to their basic needs, which, again, supports the criterion of drinking water as a social good.77 The Dublin principles for Integrated Water Resources Management (IWRM) emphasize the importance of water and determine that: (i) water is a vulnerable and finite resource, essential to sustaining life, development, and the environment; (ii) water development and management should be based on a participatory approach, involving users, planners, and policymakers at all levels. (iii) women play a significant role in the provision, management, and protection of water; (iv) water has an economic value in all the different uses for which it is destined and should be recognized as an economic good. Although these Dublin principles establish the non-gratuity of water, they recognize its essential importance to meet human needs, state development, and the environment; this position is divergent from the characterization of water as a human right. According to the United Nations Program, making water a human right is the responsibility of all nations, which goes beyond the vague constitutional principles to include it in the competent legislation. For this human right to have real meaning, it must comprise an affordable, accessible, and safe supply. Also, to consider the right adequate, the supply should be at least 20 liters of clean water per day for each citizen, and it should be free to those who lack sufficient resources to pay for it. Therefore, the United Nations establishes that for this purpose, states must set clear parameters to measure progress towards the achievement of the goal, and this responsibility falls on local and national governments and water suppliers. As is only logical, notion of drinking water as a human right has been adopted by the legislation of several countries. For instance, the Colombian legal system provides that water is a fundamental right, which is equated, in international legal doctrine, with a human right. The Colombian Constitutional Court has developed the constitutional precepts regarding this human right through ample jurisprudence. From its initial decisions, the Court has maintained a uniform thesis regarding the protection of fundamental rights deriving from the supply of water suitable for human consumption and a sewage service to provide it, and it has concluded that drinking water constitutes a fundamental right that is part of the essential core of the right to live in decent conditions when it is destined for human consumption. The court has also stated that the right to water can be protected through guardianship action when it contributes to the life, health, and well-being of people. Because of the recognition of the human right to potable water in Colombia, a further step has been taken concerning its gratuity. An example in Bogotá is the District Decree 064 of February 15, 2012; it provides that the right to minimum vital consumption be recognized and valued in six free cubic meters per month of potable

77

Iñigo (2011) p. 244.

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water, for residential and mixed uses, for strata 1 and 2. The water service providers, to ensure that people with limited economic resources meet their basic needs in decent conditions, should provide this amount of potable water, and the District Administration will assume the economic value that the supply of six cubic meters of potable water represents for the service providers. Although the goal of this work is not to delve deeply into the concept of water as a human right and its free access, it is necessary to briefly highlight that under Colombian law, the human right to potable water has been reiterated in numerous jurisprudence of the Constitutional Court, and the free access to a vital minimum of drinking water has been recognized, seeking to ensure this right. However, such legal recognitions have a significant impact in the international arena and in waters shared internationally. Therefore, the problem of management and environmental protection of international watercourses is closely linked to the protection of human rights.

7 Conclusions The notions used to identify what today, predominantly in legal doctrine, is called international watercourses, have undergone variations in terminology. However, it is important to note the lack of absolute clarity regarding the inclusion of groundwater or transboundary aquifers, which today are of utmost importance due to extractive practices that place water conservation at risk. The same happens with the bodies of water that make up the ecosystem and the ecosystem itself. The legal development of IWC protection continues to be incipient since even in terms of its definition, there is no full consensus in practice, doctrine, or normative. The two main legal instruments of an environmental nature promoted by the United Nations for the protection of shared water resources are the “Convention on the Protection and Use of Transboundary Watercourses and International Lakes” and the “Convention on the Law of the Non-Navigational Uses of International Watercourses.” However, these documents tend to be of a declarative nature, without tangible commitments, clear and explicit obligations, or sanctions for non-compliance. The ratification of these instruments has not been abundant, especially in the Latin American continent. These documents are expected to be more widely received soon to develop international IWC environmental law. Although these legal instruments, promoted by the United Nations, purport to be binding framework conventions, with a certain level of universality for the Member States of this organization, currently, the protection of the IWC is given predominantly by either bilateral or multilateral inter-party agreements. Therefore, to understand the dynamics of the legal protection of these shared resources, it is necessary to examine specific IWC. Cases from different latitudes were observed, in which the predominant common element was the existence of integrated administrative organizations by the states that shared the watercourse. Another central element in the cases studied was the absence of sanctioning powers to provide these organizations with a high degree of effectiveness.

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Thus, the approach to the study of specific watercourses enables the identification, in the analyzed cases, of common elements, among them normative, organizational, and factual components. The first one refers to the existence of an international agreement (regardless of its denomination) by which declarations of conservation interests and cooperation between States are made, but that in most cases lack specific obligations, except in a few cases that establish a system of transfers, which has not been entirely successful, and on the contrary have been a trigger for conflicts, such as in the case of the Rio Bravo/Grande and the Syr Darya. The organizational component refers to the establishment of a committee or commission (which is also indifferent to its name) responsible for administration or management, which was found to generally lack significant powers because of concerns regarding the violation of the sovereignty of the states. The common factual component was the characteristic of environmental deterioration of these shared resources. Industrial, agricultural, and water use practices mean they have generated problems concerning pollution for most of the river resources in the world. However, the situation is more concerning regarding crossborder bodies of water. Besides environmental deterioration, there is the challenge of attaining consensus to make decisions, the implementation of infrastructure works that are necessary for economic development but unsustainable, as well as the achievement of agreements, which generate compliance issues and trigger political conflicts between states. The environmental protection of international watercourses carries an important edge, which is the satisfaction of vital human needs that depend on these water sources. Hence, shared regimes must consider this state obligation, which, in many cases, may be linked to the human right to water, from the perspective of its emergence as a developing right. Current legal practice has generated international instruments that recognize this. Some states, from their national legal systems, have recognized their protection from the human rights perspective. It can be understood that there are three legal elements that complicate international law regarding the IWC, namely, the recognition of the human right to water, the regime of environmental protection, and national sovereignty over natural resources. These three theoretical concepts involve major challenges that law must address to establish settlement formulas, the satisfaction of rights, and a legal system of protection without disregard for human rights, or one of the fundamental rights of States, sovereignty. Finding proportional, fair, equitable, and reasonable solutions between these three edges in the regulation of international watercourses should be the objective of the regulatory systems of protection, whether of an international— with generalizing intentions—or an inter-party nature.

References Aguilar, I. 2006. Agua y desarrollo en el Noreste de México: Una Visión panorámica. In El Noreste: Reflexiones, Isabel Ortega (coord.), Fondo editorial de Nuevo León, pp. 283–294.

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Bearden, B. 2010. The Legal Regime of the Mekong River: A Look Back and Some Proposals for the Way Ahead. Water Policy 12 (6): 798–821. Cabrejos, E. 2005. Enfrentamiento de Rusia y Estados Unidos en Asia Central. Boletín de Información del Ministerio de Defensa Español 288: 8–44. Campins, M. 2009. La gestión de los cursos de agua internacionales en Asia Central: ¿amenaza u oportunidad? Observatorio Asia Central 77: 1–8. Castillo, M. 1999. La protección y preservación de cursos de agua internacionales: el convenio sobre el derecho de los usos de los cursos de agua internacionales para fines distintos de la navegación de 21 de mayo de 1997. Anuario español de derecho internacional 15: 115–158. Del Castillo, L. 2013. La protección ambiental internacional y el agua: estado del debate. In: Del Castillo, L., La Contaminación Fluvial en el Derecho Internacional: Casos Recientes en la Práctica Sudamericana. La Ley, Universidad de Buenos Aires: Buenos Aires. Diagne, B. 2004. Le modèle de l’Organisation pour la Mise en Valeur du fleuve Sénégal (OMVS). In La gouvernance de l’eau en Afrique de l’Ouest: aspects juridiques et institutionnels, ed. M. Niasse, A. Iza, A. Garane, and O. Varis, 169–182. UICN, Gland, Suisse et Cambridge, Royaume- Uni. Fierro, M. 2007. Aplicación de la Power Matrix Model y conjuntos alternos de indicadores para determinar el potencial de conflicto en Riberas Transnacionales: El Syr Darya como estudio de caso (Tesis de licenciatura). Puebla: Universidad de las Américas. Retrieved from: http:// catarina.udlap.mx/u_dl_a/tales/documentos/lri/fierro_g_ma/indice.html. Hashimoto, T. 2001. Environmental Issues and Recent Infrastructure Development in the Mekong Delta: Review, Analysis, and Recommendations with Particular Reference to Large-scale Water Control Projects and the Development of Coastal Areas. Vol. 4, 1–70. Working Paper Series Australian Mekong Resource Centre. The University of Sydney. Instituto Iberoamericano de Derecho Comparado -IIDC. 1920. El tratado de Versalles de 1919 y sus antecedentes. Madrid: IIDC. Iñigo, J. 2011. ¿Un mercado para los bienes comunes? Inclusión y liberalización del agua como mercancía de la OMC. In Gobernanza y manejo sustentable del agua, ed. G. Capaldo, pp. 237–260. Buenos Aires: Mnemosyne. Kabunda, M. 2008. El infarto ecológico en África: depredación, conspiraciones geográficas y económicas. Revista África-América Latina. Cuadernos, no. 45. Klare, M. 2003. Guerras por los recursos: El futuro escenario del conflicto global. Barcelona: Urano. López, M. 2009. Experiencias de Paz en Conflictos Fronterizos por el Agua. Revista Luna azul 28: 96–102. Maghfour, El H. 2008. Hydropolitique Et Droit International Au Proche-Orient. París: L'Harmattan. Majzoub, T. 2008. Management of Shared Water Basins (Conflict versus Cooperation). Case Study: The Nile basin. Anuari IEMed de la Mediterrània 5: 143–149. McCaffrey, S. 2009. Convención de las naciones unidas sobre el derecho de los usos de los cursos de agua internacionales para fines distintos de la navegación. United Nations Audiovisual Library of International Law 4: 1–4. McIntyre, O. 2007. Problems, Principles, and Terminology. In Environmental Protection of International Watercourses under International Law, ed. O. McIntyre. Aldershot: Ashgate. Niasse, M. 2004. Prévenir les conflits et promouvoir la coopération dans la gestion des fleuves transfrontaliers en Afrique de l'Ouest. Vertigo revue électronique en sciences de l'environnement 5 (1). Nile Basin Initiative. n.d.. Retrieved from: http://www.nilebasin.org/ Sánchez, V. 2004. Contexto e implicaciones. In: El revestimiento del Canal Todo Americano: ¿competencia o cooperación por el agua en la frontera México-Estados Unidos? V. Sánchez (Coord.), pp. 224–295. Tijuana: Plaza and Valdés. Sereno, A. 2014. La ratificación de la convención marco de la ONU sobre cursos de agua internacionales. Efectos a nivel internacional y europeo. Ordine internazionale e diritti umani 4: 812–832.

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State of the River Nile basin. Nile Basin Initiative (NBI). Entebbe, Uganda, 59, 2012, http://www. cedare.int/namcow/attachments/article/141/State%20of%20the%20Nile%20River%20 Basin.pdf Suárez, S. 2013. Análisis del papel geoestratégico del río Nilo Azul en la estructuración de las relaciones entre Egipto Sudán y Etiopía entre 1990-2002 (tesis de pregrado). Universidad del Rosario. Retrieved from: http://repository.urosario.edu.co/handle/10336/4741. Torres, M. 2000. Otra vuelta de tuerca del derecho internacional para regular los recursos de agua internacionales: el Convenio de Helsinki de 17 de marzo de 1992. Anuario de derecho internacional 16: 225–262. United Nations. 2003a. The Senegal River Basin, Guinea, Mali, Mauritania, and Senegal. In United Nations, The United Nations Report on the Development of Water Resources in the World, Water for All, Water for Life. Paris: United Nations. United Nations. 2003b. Economic and Social Council. Twenty-ninth session. In Substantive issues arising in the implementation of the international covenant on economic, social and cultural rights. Distr. General. E/C.12/2002/11. 20 January 2003. ———. 2008. Meeting of States Parties to the UNCLOS. Decision regarding the workload of the Commission on the Limits of the Continental Shelf and the ability of States, particularly developing States, to fulfill the requirements of article 4 of annex II to the United Nations Convention on the Law of the Sea, as well as the decision contained in SPLOS/72. United Nations. Retrieved from: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N08/398/76/ PDF/N0839876.pdf?OpenElement ———. 2010. Executive Summary of the Partial Submission of the Government of the Kingdom of Denmark together with the Government of the Faroes to the Commission on the Limits of the Continental Shelf, The Southern Continental Shelf of the Faroe Islands. United Nations, p. 15. Retrieved from: http://www.un.org/depts/los/clcs_new/submissions_files/dnk54_10/SFM-Exec utive_Summary_secure.pdf Utrera, S. 2014. Agua, trasvases y medio ambiente: las cuencas fluviales y el nuevo plan hidrológico nacional. Madrid: Dykinson. Zingari, P., and M. Achouri. 2007. Cinco años después de Shiga: acontecimientos recientes e implementación de las políticas relativas a los bosques y el agua. Unasylva 229: 56–61.

Dayana Becerra PhD (summa cum laude) in international law from Universidad de Buenos Aires, Argentina. LLM in Environmental Law from Universidad de Huelva, Spain. Specialist in Environmental Law from Universidad del Rosario, Colombia. Specialist in Administrative Law and Lawyer from Universidad Militar Nueva Granada, Colombia. Professor in International Law and Environmental Law, and researcher in environmental law of the group in Public Law at the Faculty of Law of Universidad Católica de Colombia (2016-2021). Email: [email protected]

Part II

Cases, Theory & Law

Borders, Migration and Human Rights: Case of the United States and Mexico Enrique Uribe Arzate and Flor María Ávila Hernández

Abstract The present chapter focuses on the border relationship between Mexico and the United States, specifically on the migrant human rights situation and how this situation reveals the discrimination that exists at this frontier and generally in the United States. In this order of ideas, this work focuses on seeking the theoretical foundations for the implementation of policies that are more favorable to immigrant Mexicans. Some are of a preventive/guarantee and others of a reactive/remedial type, all based on the understanding that everything up to now has been insufficient. Currently, this issue has gained outstanding relevance due to the threats and excessive actions that President Trump adopted at the time, and which turned into acts of xenophobia and discrimination, which deepened the social segmentation of Mexican and American families that has developed from that side of the country.

1 Introduction The violence, discrimination, and differentiated treatment that migrants endure in all aspects of life, are a severe affront to humanity. They are unfortunately founded on and justified by legal-political concepts and institutions whose original functions have been surpassed or that at least require a review of their procedures in these times of great humanitarian crises. This global phenomenon is suffered, in similar

This chapter is the result of the research projects entitled The Four-Dimensional Conception of the Law for the Guarantee of Human Rights and Methodology and Paradigms of Legal Research developed with the groups Constitutional Studies Consolidated Academic Body at Universidad Autónoma del Estado de México and Phronesis, linked to the Socio-Legal Research Center (CISJUC) at the Faculty of Law of Universidad Católica de Colombia, in Bogotá. E. U. Arzate Universidad Nacional Autónoma de México, Mexico City, Mexico F. M. Ávila Hernández (*) Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 D. Endrizzi et al. (eds.), Frontiers – Law, Theory and Cases, https://doi.org/10.1007/978-3-031-13607-8_7

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inhumane conditions, by migrants from Mexico and Central America to the United States and by migrants from South America, Africa, and Asia moving to the most prosperous countries in Europe. To address this issue, we will use the case of Mexico. However, the theoretical construct outlined here can very well be applied to any country that undergoes this phenomenon of expulsion and desertion of its inhabitants. Because it is a far-reaching problem that has a direct impact on the lives of those who risk the unknown and, indirectly, the lives of their families, migration— particularly undocumented migration—has been, for many decades, an issue of high complexity for Mexico’s public policies and, understandably, of conflicts in the bilateral relationship with the United States, the country that receives most of the migrants, most of them valuable and honest people. The idea exists among Mexicans that their government (of successive parties and colors) has not paid adequate attention to this phenomenon and the problems it generates. Undoubtedly, an issue of such importance for a country that has millions of nationals abroad and shares a frontier of more than three thousand kilometers with the most powerful country on earth, and this country receives significant income through remittances, deserves priority attention. This research affirms its theoretical bases in the revision, rethinking, and re-elaboration of the concepts of State, empire, supreme authority, and citizenship that are linked to the human rights of migrants because it is precisely these concepts that decisively influence the scope of the political decisions of the States that reject migrants. In the corollary of this document, an adequate understanding of these concepts is fundamental to creating viable and pertinent public policies to guarantee the human rights of migrating human beings. It is evident that the public policies to which we will refer must be promoted by the migrant-expelling State to achieve at least two fundamental tasks, which are to prevent its inhabitants from seeing migration as the only option for their development and to create legal mechanisms that favor the protection of migrants, beyond frontiers, in scenarios that are generally hostile.

2 Epistemological Basis of the Issue The theoretical construct that we intend to develop here will be the first step in laying the theoretical foundations for the creation of useful and effective scenarios, instruments, and legal measures for the defense of migrants. In this way, for the purposes of the reflections expressed here, we will understand migration as the multifactorial flow of human beings, through the States, with the intention of settling temporarily or permanently. Here, we do not delve into the abundant literature on the subject; it seems enough, for now, to express how this phenomenon materializes in general. From this initial affirmation, we can express our conviction that the earth is one and that borders are a human construct. In the historical review of migration, we note that there is a need for human beings to travel and transcend the known and regular

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space. Stirring in every human being is the need to change scenery and relocate—as well as a gregarious nature—which is sometimes poetic and at other times literal. In this second case, moving from their place of origin has undeniable importance and a high projection in the lives of thousands of people, who, for multiple reasons, need to leave their birthplace to reside, study or work elsewhere. When this is projected beyond borders, people live, experience, and often suffer idiomatic, cultural, and axiological changes; therefore, migration has an important impact on the lives of human beings. This phenomenon, which has recently hit the United Mexican States and its inhabitants with greater force—within and beyond the frontiers of Mexico—needs to be clearly and sufficiently explained and understands so that the government can build its public policies on the matter on firm, State-of-the-art, theoretical bases. Finding a solution to the acts of xenophobia and daily discrimination suffered by Mexican migrants is entirely pertinent, necessary, and urgent in the face of the threat of the construction of a wall—not to mention the aggressive proposal that Mexico pay for it—and the attempt to initiate the massive deportation of Mexicans and their descendants, which violate the essential human rights. These processes must be quickly stopped and eradicated. Today’s migration, materialized in change and relocation, created by multiple situations (war, natural disasters, unemployment, hunger, misery, better expectations, growth, etc.), has an inextricable relationship with phenomena that have always accompanied human beings. Only by way of example, we cite war and trade, which are the primary modalities of interaction between human groups. In the case of societies ruled by free governments, how do they affect the institutions responsible for the protection of freedom?,1 moreover, how can and should these institutions influence the safeguarding of the freedom of the people who migrate? The phenomenon of mobility and relocation are two great manifestations of human life. War, with its inherent irrationality, hatred and harsh reality; and trade, with its injustices and asymmetries (until now insurmountable), beg the question: How can human beings not migrate if a vital need is to flee from war? How can they not migrate if hunger spurs them at all hours? How do you stop trade and the exchange of ideas, culture, customs, and beliefs? All these questions, including the last one, made by Panebianco, are essential issues that we should try to answer. As an inherent phenomenon of humanity, migration presents its characteristics according to the historical moment and geographical space. Obviously, the conditions are peculiar to each segment of history; therefore, our analysis must be viewed through the eyes of twenty-first-century scholars, without discounting how this issue has taken place in the past, and should not lose sight of the current conditions of the phenomenon. Although our theoretical approach has a direct and immediate reference to Mexico and Latin America, the epistemological categories that we will discuss may well be applied to any other situation where the flow of people takes place.

1

Panebianco (2009), p. 265.

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The relevance of studying the phenomenon of migration is evident, and it can yield better results if it is based on the study of the transformations of the State, citizenship, and nationality. To begin this prospecting exercise, we must point out the importance of interpreting the scope of migration in the face of the construction of concepts that sociology, political theory, and law, among other disciplines, have generated through time. The phenomenon must also be visualized and attended to from the most recent references anchored in xenophobia, racism, and discrimination. We hope that our concepts will be enough to define and contain the complex phenomenal dimension that accompanies this process that, never as today, is the cause for well-founded concern for Mexico and Central and South America, countries that experience these relocations, mainly because of hunger and misery, and the inherent depredation of economic models that have transformed human beings without the opportunity of social inclusion in their country into undocumented entities. From a perspective of indivisible rights, a voluntary migrant is one that could survive with dignity in his social environment of origin but decides to do it elsewhere. A radical reading of this vision would demand the right to stay in the place of origin, where people have a community, identity, and networks, as well as possibilities of satisfying their basic needs.2 The truth is that migrants usually do not have their needs met; their hunger and that of their families launches and makes them desperate. Two terminological details are necessary to initiate our approach; on the one hand, Migration of human beings, never as capital or merchandise—although globalization can lead to this—and, on the other, the irreducible reference to the concept of State and not only to territory as the space where this phenomenon materializes. At the same time, we can begin our epistemological construction with some exercises that will help us to develop and better understand this matter. Our approach acquires greater viability with the assembly of these binomials and their possible combinations. In Table 1, we have highlighted the elements of this analysis from a conceptual, theoretical promontory in the left column. In the right column, we note the harsh reality of these elements, as expressed, and lived daily. The greatest epistemological challenge is linking both columns change the current status quo substantially in favor of the human beings who live on earth (heritage of humanity), but that—by artifices and mechanisms of subjugation—unfortunately, become foreign and illegal because they lack papers or legal definitions that make them different, alien, and threatening. Migration is not exclusive to any part of the earth or a recent phenomenon. It exists everywhere in the world today just as in ancient times when the great flows of human beings from Africa, Europe, and Asia occurred. Trade, conquests; inventions; and scientific and technological advances to human life owe much to this ongoing and perennial process of transit and search. Therefore, it is not an overstatement to argue that migration is inherent to human beings. We could affirm that the history of

2

Celis and Aierdi (2015), p. 23.

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Table 1 Theoretical structure and effective projection Theoretical Structure/Conceptual Dimension A.1. State-territory A.1.1. Territory-border (artifice) A.2. State-empire A.3. State-power B.1. State-citizenship (people) C.1. Nation – citizenship (people) D.1. “Legal” flow of human beings Time defined of internment permission D.1.1. Requirements and migration conditions of human beings: residence, citizenship, nationality

Effective Projection/Materialization – Material dimension of the State – Patrimonial vision of the territory – Capacity of State domain – Legal dimension of public power – Human dimension of the State phenomenon – Sociological dimension of the State – Uncontrolled, natural, irreducible flow of human beings (“real”, “material”, “bare” migration). – Rejection, persecution, discrimination, annulment of the human condition of the migrant. Expulsion, the closing of borders

Source: Own elaboration

humanity is also the history of immigration and that if Homo sapiens appeared in Africa, we could assert that the rest of the world’s population is a descendant of migrants.3 To give our inquiry consistency, we will highlight some early conclusions that will help build our perspective on the issue addressed. To provide methodological homogeneity, we will enumerate these affirmations for their unequivocal identification. One of our statements is that migration is a phenomenon immanent to human beings. In this regard: Migrations are as old as the world. Everything we currently know about paleontology and archaeology point to a settlement of the entire planet by migratory movements from the places where we have identified the oldest human fossils. The man seems to have a particular tendency to migrate, as practically all the countries of the world have been populated by successive migrations obeying various causes.4

Ergo, if this phenomenon is as old as the world, we can certainly and forcefully affirm that all countries have been formed by migration, every State, at some point of their formation, have nurtured their human component (inhabitants, nationals, and citizens) with migration, which one has not?

3 4

Palacios (2008), p. 28. Barou (Barou 2015), p. 5.

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3 The State Today: Paradox and Course As a necessary theoretical reference that accompanies and serves to understand this phenomenon, the elements that typically form part of the concept of State should be analyzed and dissected. Otherwise, it would not be possible to understand the differences between the people associated with that political entity and other beings, such as foreign, different, and alien humans, almost always in a state of extreme need and usually seen as a threat. It is paradoxical that migration and all the vicissitudes that it triggers in the human beings who undergo this process take place within the framework of the concept of the State, which has lately been challenged and shown its theoretical fragility. Although, in everyday realities, its Weberian bare power seems to reappear with greater intensity, supported by the legal capacities and the political tools that can justify and sometimes qualify the exercise of power. The State, in this case, Mexico, languishes before the wave of meta-State issues; nearly no matter is restricted or limited to the jurisdiction of domestic power. From the enthronement of human rights in many legal instruments, there has been a decline of the concept of State that can be identified as the “softened State.” Therefore, it is contradictory that within this space that should allow human beings to course and increase the enjoyment of their rights, that the State should be a condition and reference, brake, and limit for human life, derived from old concepts such as sovereignty, power, territory, and frontiers. The theoretical softening of the concept of the State is accompanied by a greater strengthening of the issues that go beyond the ancient concepts, both mentioned above, in something as basic as commerce. It is absurd to try to exchange merchandise with the stone-like reference of the old-faced State; if this happens with such elementary matters as merchandise, that by nature must circulate, what can be said about human being’s movements? Here, the concept of the State (with its sovereignty and its frontiers) no longer covers a process such as migration theoretically. While it is true that the State is and should be, typically, the strongest political organization within its territory,5 we must not lose sight of the fact that there are two stressing forces that mark it and are part of the paradox already indicated. Within the State, multiple entities question its power; surpassing their borders, many others operate and define issues that once were exclusively the jurisdiction of the State (now injured and fractured). How do we resolve this, which is almost an aporia? The concept of State must move its conception towards this double projection phenomenon significantly. Its immediate reference to its territory is only the first step to introducing us to an unusual dimension of the State in times of globalization and the reign of local or domestic affairs. In this order of ideas, the physical and legal territorial extension must be acquiescent with the idea of the limits that the State itself must impose and that at the same time, it must project outwards. In this epistemological conception and reconstruction that we outline here, using the term 5

Heller (1984), p. 234.

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neonate State, to refer to “the lands and waters included within the national territory, belong to the nation”,6 implies an outdated patrimonial vision that, first, makes the true projection/dimension/composition of the State territory ambiguous and, second, tells us nothing about the most important thing, which is the inhabitants of that State, beyond the territory/heritage of the State. In short, the State that in Bodino was anchored in sovereignty as the summa in cives ac legibusque subjects soluta potestas,7 and in Heller8 veered towards the idea of, typically, the strongest power within its territory needs to be redirected towards human beings that need this power to guarantee their essential rights inside and outside the territory in a way that neither the sixteenth century of Bodino nor the 20th of Heller could foresee. The softened State is the theoretical-conceptual expression of the neglect and abandonment of migrants. The State, softened by globalization, must be redesigned to serve as a seat for the concepts of citizenship and migration, which must also conform to the unassailable human phenomenon of our time, which is change, transit, and relocation. At the far edge of this almost insurmountable contradiction, Mexico is experiencing a softened State phase, but with presidential power in the height of hypertrophy, all-important, and laxity, which must be studied to redirect its potentia towards the defense of human rights of our fellow citizens, compatriots, and contemporaries in this moment of evident crisis. Today, faced with the conditions of the world, the vitality of societies and the concerns of human beings, the territory of the State serves only to identify the limits of one versus another and, perhaps, also to define the competent jurisdiction. However, sometimes it does not serve this purpose because the matters involving two or more States are generally served from cross-border mechanisms, such as binational panels to resolve conflicts in economic matters or cross-border commissions to attend issues such as water and the environment. To this, Dembour and Kelly add: Migrant status is crucial to understanding the shape of hierarchies of access to rights and entitlement. Nonetheless, migration in and of itself is not the only important factor. We need to understand under what conditions people are allowed to move and under what grounds they can stay. Thus, what is at stake is not so much migration as differential access to free movement and residency: bankers find it easier to move than builders, in the same —crucial– way that some people find it easier to stay in one place than others. Similarly, some migrants gain access to their rights with far greater ease than others. The question is, why?9

To repeat the question with which the previous reference ends, why do some migrants have an easier time accessing their rights and others do not?

6

Political Constitution of the United Mexican States (n.d.), art. 27. Freed from the power of the citizens, and the law, and regulations of the highest degree in subjects. 8 Heller (1984). 9 Dembour and Kelly (2011), p. 10. 7

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From what has been expressed here, the concept of State—fragmented throughout the twentieth century—serves little to address a phenomenon such as migration. It is also evident that the concept and extension of territory, as a fundamental category to understand the State and as an area for exercising its power, has been overwhelmed by globalization. In this way, the fragile or softened State tries to cling to its geographical territory to strengthen its power. This attempt could not be more frustrating because goods and human beings change, flow, and move. Globalization has enveloped and engulfed the softened State, and the territory is just that, a mute geographical extension subject to time and the variations of the multiple powers (public, private) that are located there. It is also a seat for millions of diverse people of different origins, all human, all the same. The concept of a neonate State is an unprecedented and viable theoretical possibility to redirect the tasks of the migrant-expelling States and to address the defense and guarantee of their human rights. In this context, the neonate State that we have referred to as a necessary epistemic development represents the theoretical affirmation of a new legal-political spectrum capable of strengthening its power in the pursuit of the rights of its inhabitants. This notion, which seems like a contradiction, must be looked at carefully to understand it adequately. We are not attempting to void the classic concept of the territory as a fundamental element in the conception of the State with the references to the territory/geography. Our epistemological intent is instead oriented towards the idea that territory—space and geography—must have an eminently human orientation, unhindered by the patrimonial traces that could prevent the emergence of the new concept of State (and of open, universal citizenship) and leave it in the current miserable condition of an unborn State, which is overcome and limited by its borders, conditioned by citizenship; in short, an inhuman and excluding State. Using the example of a relatively recent phenomenon, we can account for the falsifiability that accompanies this topic. Frontiers are something as conditional as the emergence of new modes of human coexistence, for example, cyberspace. Global computer-based communications cut across territorial borders, creating a new realm of human activity and undermining the feasibility –and legitimacy- of laws based on geographic boundaries. While these electronic communications play havoc with geographic boundaries, a new boundary, made up of the screens and passwords that separate the virtual world from the “real world” of atoms, emerges.10

The person who travels in cyberspace, the transactions that can be carried out from this electronic non-frontier, the online course that can be taken at any time, the friendships that develop (of various nationalities), the language or languages, and the multiple associations to which a person may belong can hardly be understood without heeding the artifice of frontiers and citizenships because, in cyberspace, these are simply non-existent, invisible, and even incomprehensible. Thus, the drivel of walls, barriers, wired fences, and drones is best envisaged when we the quid of these perverse exercises of the potestas. In this regard, Brown says: 10

Johnson and Post (1996), p. 1367.

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Cumbersome walls respond to the need for containment and limits in a world that is too global, in a universe that has no horizons. They produce a spatially delimited “us,” national identity and a national political dimension when these can no longer be configured based on presumptions of political or national economic or demographic autonomy, homogeneity or shared history, culture, and values.11

4 Universal Citizenship and the Global Nationality of Human Rights One of these concepts moving today in the unreachable reality of everyday life is citizenship. Regardless of what has been adduced, so far, in the international order regarding the universality and progressiveness of human rights, the first-generation rights still follow the same most recent fate as those of gestation/appearance because of the questionable absence of legal mechanisms and public policies aimed at their effective enjoyment; some of these rights are inherent in human beings. Now, together with the idea of migration, the flows of human beings are understood from the concept of citizenship. This concept creates, per se, distinction— artificial and random—and gives rise to the State’s exercises of separation and confrontation. Today, citizenship is no longer just the merely belonging to the self-governing political community: the State. It also establishes the legal status, or the rights and duties of its citizens. These rights and responsibilities include the democratic rights that subjects can use to change their situation, position, or legal status reflectively. If these rights are denied or reduced for individuals, their ability to ensure equal treatment and influence decision-making is limited. Thus, the circle of exclusion closes. A profound debate emerges from the problematic compatibility between this notion of exclusive and excluding citizenship and the new realities propitiated by the growing mobility of people.12 There is a circle of reciprocal presupposition between citizenship and civility (words of the same etymology but that have distanced themselves fundamentally from politics), which precludes the possibility of conceiving democratic citizenship preserved and extended to new spaces of socialization without a collective construction of civility, as well as reflecting on concrete ways of civilizing customs outside of a precise horizon of citizenship and institutional recognition of the equality of rights.13 In this context, we find some electoral rights (eligibility, age qualification) and other rights concerning information (access and guarantee of the use of personal data); in short, rights that can and must serve to enhance democratic life and that the State has not promoted. Thus, our affirmation is the concept of citizen and non-citizen is an artificial notion that must be analysed within the framework of the coexistence of the State

11

Brown (2015), p. 173. Solanes Corella (2008), p. 80. 13 Balibar (2003), p. 185. 12

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and other supranational entities. In the case of the European Union, for example, it is said that: In the long-standing debate between the rights of all human beings and those reserved for nationals of a given State, recent EU migration policies have contributed greatly to sustaining the exclusivity of the citizen. If the EU intends to present itself internationally as a political reference committed to the defense of human rights, its sovereign reality is rather that of the protection of the rights of nationals (specific to the EU). It is not a minor issue in the context of multipolar and increasingly global political order, which should move towards the progressive equalization of the rights of citizens and non-citizens.14

Citizenship is a concept that must be treated with greater malleability because, as a differentiating note, it cannot distinguish beyond the tie between human beings and juridical-political entities. Therefore, when opting for a model of citizenship, both at the State and European levels, which considers the opening abroad, there is no doubt that the civil model of citizenship is preferable—legal translation of a cosmopolitan project—to that of citizenship anchored in the ethnic-cultural community.15 This entails the joining of the opening abroad and the cosmopolitan dimension with the guarantee of human rights; otherwise, a revolutionary conception of this would be of little use. Cosmopolitanism, unlike ethnocultural nationalism, embraces the multiplicity of circumstances and processes that affect and unite people, regardless of where they were born or where they reside.16 Moreover, the emphasis on the preponderant nature of human rights that have generated a paradigm shift and a different way of understanding the issue of migration beyond the indifferent looks of governments is striking. In addition, the transit and arrival of human beings to any place on earth is not enough; a process of integration should accompany migration.17 Today, the paradigm of human rights has made it possible to understand that the criminalization and systematic rejection of migrants is yet another grievance, among others, that these individuals suffer in their internment, transit, and permanent settlement in a country different from their own. A phrase that seems fundamental for the timely, respectful, and ensuring humane treatment of these people, States that criminalization makes illegal what cannot be; no human being is illegal. The generality of law makes it possible to differentiate people’s legal status and, absurdly, it also allows the introduction of an undue categorization that starts in the lexicon and then turns on all of us. Thus, there are nationals and foreigners, and then some that are even more denuded, like refugees and the so-called Stateless.

14

Monclús and Brandariz (2014), p. 14. Asensi (2004), p. 101. 16 Ibid. 17 It was Pope Francis who Stated “Welcome and integrate. The world model at the head is Sweden. Sweden has nine million inhabitants, 890,000 of these are new Swedes, children of migrants or migrants with Swedish citizenship (. . .) Integrated migrants, this is the issue, to integrate. On the other hand, when there is no integration, they become unnoticed, and I do not blame anyone, but in fact there are ghettos. Caño and Ordaz (2017), p. 4. 15

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Foreigners, who have always been subject to aversion, are treated as strangers and as a threat, as irrational as insuppressible. They are foreigners because they come from elsewhere, because the law only tangentially touches them, and, less still, recognizes and appreciates them. Then, as their differences become more evident, the suspicion leads to rejection. We should never hardly judge strangers when we do not know them. Unfortunately, it is not like that; the generalized rule is the mistreatment, exploitation, abuse, use, and commodification of migrants, whether to rob them, deprive them of their liberty, extort them, subject, and recruit them for illegal acts, or traffic them. This situation is aggravated tremendously when an abused person gathers several conditions of vulnerability. Understanding the concepts of victimization and vulnerability is key to highlighting the relevance of this issue. Criminal law tells us that Victim is the person who endures an illegal act. However, outside the criteria of criminal law, a victim is any human being who, without having suffered any crime, suffers from erratic public policies that do little or nothing to adequately protect human rights. Among these victims, the cases of women, children, seniors, homosexuals, indigenous people, and, of course, migrants. We find the primary source of generation of indiscriminate victimization, even without having suffered a crime, in the absence or inadequate and limited implementation of public policies. Are you homosexual? To what extent does the State guarantee your right to be different? Are you poor, or even worse, destitute? What does the State do to favor your options and possibilities to remove you from your marginal situation? Are you young without opportunities, unemployed, and without schooling? Where are the public policies to promote opportunities and the future? Under this concept, migrants are de facto victims, immediate and poorly attended. We know that there is a railway called the beast, we see migrants wandering like pariahs in our cities, detained in migratory stations, harassed, and subjected to modern forms of slavery, and we all look at the problem tangentially—it is not our problem—but it does concern us as citizens of the world unless we are incapable of seeing ourselves, our own image, in others. It is the same from Central America to Mexico as from Mexico to the United States; it is true for the Africans who, with a high risk of dying, venture onto poorly constructed barges to flee misery, war, and injustice. How accurate is the statement that migration has its most powerful engine in inequality? The poor do not even have the option to relocate, to migrate; they have no choice. The problem then focuses on finding the most appropriate legal frame to make sure that migrants are guaranteed their human rights. Mexico needs to pay particular attention to this because there is no doubt that the greatest evil that we continue to suffer is corruption and impunity. In this order of ideas, there is a conviction that we are all vulnerable;18 but even in this doctrinal categorization, there are vulnerable in the act and potentially

18

Uribe and Romero (2008).

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vulnerable. Migrants are vulnerable in the act by the mere fact of their transit and change of residence; they live in this scenario of violation of their human rights. Our conclusion derives from the following, where there are human beings, so are their human rights. We all have the right to travel, change residence because of school, changing place of work, or just because our curiosity invites us to travel to other countries. We can all be migrants—the law will invariably provide the legal status. However, no one deserves to be treated as a waste when everything that has a human face has the same value; we are all the same. Merely affirming that rights are for all is insufficient if the discourse on human rights—notably, on the rights of migrants—lacks concrete references to viable, accessible, and useful guarantees for protecting these rights, inside and outside of Mexico. It is evident that the aporia contained in the human rights discourse, on paper (without guarantees), has strongly impacted the repeated violations of the rights of migrants inside and outside Mexico. It is important to note that these human rights violations are uncoiled against domestic and international migrants, almost without distinction. Understanding these concepts is useful to adequately direct conceptions and scientific constructs. At this point, the repeated references of politics and from the law, of the concepts of nationality and human rights are projected from the State’s vision and from the legal bind that can explain that a person is a “national” of some nation or some country and because they are a “human being,” they have some rights that must be guaranteed by that State. According to the theoretical construct supporting this explanation, being a national of some State exposes the limitations inherent to the broad and adequate protection of human rights that necessarily depend on legal and economic capacities, and, mainly, on the political determination of those who embody the control of the bodies responsible for such a relevant function. Ergo, to say that someone has this or that nationality is to say that the protection and guarantee of their human rights depend on the capabilities of that State. It can be affirmed that the softening of the State offers few alternatives to the guarantee of human rights because of the inherent fragility of its power and its limited and inoperative public policies in this field. With such a biased perspective, human rights cannot be enforced.

5 The Vitality of Migration and the Porosity of Frontiers With what we have pointed out so far, migration—an inherent condition for human beings—cannot be subject to the artifices that language, suspicion, and the fear of someone being different and the rejection of others have allowed to exist in borders (vulgar human invention), there, where neither nature nor geography has made any difference.

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However, a border, as a concept and reality, is more than fences, barbed wire, and walls. Its greatest menace lies in the minds and will of human beings that, with the friable argument of preserving and defending the national, barrage others, foreigners, the different, those “without papers,” the “undocumented,” who, in the end, are alike those who reject them. With the projection of this eminently human issue, the closing of frontiers is a matter of very difficult concretion because the flow of people and goods implies irrepressible mobility. According to Bolaffi, “Closing the European immigration borders is unrealistic and dangerous. Policies can barely detain structural phenomena. Not if it cancels by decree the arguments of contemporary economy and geopolitics.”19 A decree can fix nothing because the reality is stronger. In this order of ideas, migration, filled in human nature and very dynamic in its daily realization, also goes hand in hand with the processes of integration in the world: Only someone of reduced intellectual capacity could affirm and demonstrate that migration has nothing to do with these economic movements. In this regard, the following reference illustrates what we have Stated: Thus, the entry of the countries of the South into the international migration arena may be seen as an inevitable consequence of the increasing integration of these areas into the world economy and global systems of international relations and cultural interchange. These new migratory movements are a continuation of historical processes that began in the fifteenth century with the European colonial expansion and the ensuing diffusion of new philosophical values and economic and cultural practices around the globe.20

In the theoretical framework that this represents, the references to the concepts of State and nation and nation-State and its direct link with citizenship account for a vision surpassed by reality and only marked and conditioned by cultural constructions of temporary dimension and specific context, of course, changeable and in the constant process of coupling to new eras and different means of human interaction. The nation-State is the combination of a political unit that controls a defined territory (the State) with a national community (the nation of people) that has the power to impose its political will within those boundaries. A citizen is always a member of a nation, a national. Thus, citizenship is meant to be universalistic and above cultural difference, yet it exists only in the context of a nation-State, which is based on cultural specificity —on the belief in being different from other nations. Historically, this tension has been expressed in measures to incorporate minority groups into the “national culture.” Today, it is a major issue for indigenous peoples, as well as for immigrants. Can they only belong to the nation if they reject their own language and traditions and conform to the dominant ones?21

The difficulty in identifying nation and citizens as influencing factors specifically, define and outline draw the problems inherent in migration; this is a pending task for science and, of course, for public policies concerning this subject.

19

Bolaffi (1994), p. 719. Castles and Miller (2003), p. 152. 21 Castles and Miller (2003), Op. Cit., p. 12. 20

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How can migration be limited by legal means with decrees that break with reality and the hectic life in these times of globalization, circulation of goods, and, of course, human mobility? More and more people, at all levels of the economic and social ladder, now live, for a time at least, outside their countries of origin. Cross-national marriages have proliferated, and the offspring in such cases usually obtain both parents’ nationalities, jure sanguinis. Even among couples of the same nationality, more births occur outside the national territory. If the country of birth observes the jus soli rule for transmission of citizenship, the child then, typically, gains multiple nationalities. The long residence also often results in a permanent settlement in a new country, bringing with it inducements to consider the option of naturalization seriously, despite continuing ties to the country of origin.22

Migration is not going to stop; therefore, regulating it is the most desirable option. At this point, it is important to mention that the regulation of these migratory flows tends to make what is now marked illegal as legal—as if hunger and poverty could be subjected to political or academic criteria. The United States, like the European Union and, in general, the more developed countries, know that they need migrants for multiple work activities; it seems to us that the involvement of these countries in the regulation of migratory flows is, therefore, inevitable. Thus, measures and agreements should be taken to preclude and organize this phenomenon instead of persecuting and rejecting those who contribute their work and talent to another country. In Europe, the last advance that has taken place regarding the European immigration policy refers us to the publication, by the Commission, of a communiqué on the application of an open method of coordination in this matter. This method has two main characteristics; it is open and tries to move towards greater coordination in aspects related to immigration.23 Europe has carried out some noteworthy actions around this problem, which transcends frontiers. Future historians are likely to regard the European Union’s creation of the Area of freedom, security, and justice (AFSJ), with its vast array of Justice and Home Affairs (JHA) policy-making areas, as one of the most significant developments in the European integration process at the beginning of the twenty-first century.24 Despite the agreements to temper the rigor of the borders, this does not always translate into equal treatment for all. We cannot account for this level even in the case of Europe. An essential and inescapable issue of a conception such as that which prevails in Europe is evident in the following: In this framework of hyper-surveillance of borders and flows, the Schengen area operates in a particularly selective way, being more welcoming or more restrictive depending on whether it is people or capital that is in transit, on the direction in which migrants move (e.g., South to North, East to West), on the time dimension of mobility (e.g., temporary or

22

Aleinikoff and Klusmeyer (2002), p. 23. Argerey Vilar (Argerey 2001), p. 30. 24 Henderson (2005), p. 110. 23

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permanent), on their gender and/or on their social or symbolic profile. Its borders are not the same for everyone, nor are they experienced by everyone equally.25

For that reason, the democratization of frontiers, their aperture, and his function negotiated control (that cannot be confused with an abolition that probably won’t end in each one against everybody war, exposed to the savage competence of the economic forces) seems like a fundamental aspect of a human rights policy, where citizen and civility are enlaced.26 Therefore, the democratization of borders, their openness, and the negotiated control of their operation, which should not be confused with abolishing them, which probably would lead to a “war of everyone against everyone” exposing savage of economic competition, should be fundamental aspect of a human rights policy, in which the aspects of citizenship and civility are closely linked.27 With vulnerability comes discrimination. People hardly could understand one without the other. It is also more curtly the one called “intersectional discrimination”, which means combinate discrimination: woman, indigenous, illiterate, etc., makes worse the grade of discrimination and increases the violation of rights. In this context, the expelling and receiving States have failed to generate the appropriate public policies for the attention of this vulnerable sector, which would include the adoption of relevant programs aimed at safeguarding the essential rights of migrants. It is also advisable for states to introduce changes in the ways of operating the justice system and the functioning of the courts. This means that the attention of the vulnerable group here must be double tracked: on the one hand through the public policies already mentioned; On the other, through the strengthening of the constitutional justice system, aimed at the effective protection of the human rights of migrants. We are all migrants; therefore, migration must be regulated, cared for, and cared for within and outside the borders (artifice and invention).

6 Conclusions Mexico has already advanced with the reform of 2011, but the so-called new paradigm of human rights is just the beginning, and this must be understood in a long way in the construction of adequate, viable, and effective guarantees for the protection of human rights. Let’s not lose sight of everything and domestic efforts within the Mexican State. The truth is that this issue is of a State of order. On this issue, the convergence of domestic and international tribunals is intended to contribute to and add to the pursuit of this vital protection of the rights of migrants; but it is also clear that what has been implemented so far is not enough to remove migrants from their vulnerable status. 25

Sacramento (2015), p. 118. Balibar (2003), p. 185. 27 Ibid. 26

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Without demerit of what has already been instrumental in legislation and actions, the Mexican State has not been able to enforce their current laws, and migrants continue being the subject of violations to their essential rights. In addition to the already outstanding shortcomings of the State, the vulnerability of migrants is a propitious condition for organized crime to violate their rights as well. The lack of guarantees requires immediate action on the part of the State. It is appropriate to add that countries must also strengthen the new paradigm of human rights with the IACHR’s rules, criteria, and jurisprudence. At this point, there is no longer any doubt about the meaning of the protection of human rights. This protection is multilevel; and no longer exclusive to national courts; There is a new approach that allows us to warn of the strengths of the criteria and jurisprudence of international tribunals. Even with the watering of this source, Mexico performs one of the most difficult exercises that is the legal comparison: understanding analogies and differences with other States to take in their experiences, evaluate the solutions tested and, of course, to try in perspective, the generation of future scenarios. In addition to the rights that the international perspective has laid out for migrants, others must be considered, such as the right of asylum (as a Human right), the right of previous hearing for foreign persons, access to justice and due process, Right to migrate, the right to freedom of movement, the right to personal freedom, the enjoyment of economic and social rights, the guarantee of the right of excellence which is dignity—anchorage and motive power—of other rights; All this requires a wide range of guarantees to ensure migrants their human condition as well as that of the people of the country of transit or destination. It seems to us that this is an alternative in the roadmap that should follow the complex issue of migration. Since it is practically impossible to stop it with walls and drones, and in the face of the inefficiency and inhumanity of the rejection and discrimination of those who look different and of the closing of frontiers, human migration will be better served to the extent that we are able to propitiate the change of paradigm of the concepts that serve for the theoretical seat of the question. For the time being, countries that wish to try a variant in the daily treatment of this issue should attend at least the following. In the preventive/guarantor dimension: – It is strengthening of the educational system in the formative phase of the students with emphasis on the teaching of civics to make them citizens of the world, as well as in the implementation of an intensive education program on the universality of human rights that will allow the construction of this future “universal citizens”, a culture for respect and Guarantee of the rights inherent to every human being. – Construction of plans and programs in the schools of upper and upper secondary education on the importance of the work and its articulation with the productive life, generating of opportunities and scenarios of well-being. – Inclusion in the university level studies of learning units that enhance entrepreneurship and self-management vision of society to generate here the jobs and food we need.

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The reactive/remedial dimension: – It is necessary that Mexico develop a greater capacity to promote and defend the rights of national and foreign migrants before the international authorities. – Instrumentation of panels and forums for the discussion/construction of new epistemological orientations of concepts related to migration that allow a more human and empathetic understanding of the issue. – Adoption of a proactive policy at the international level to excite international bodies and tribunals to generate programs and adopt measures for the full guarantee of the human rights of all migrants. With this, the presence of a strong State, a guarantor of human rights, must make the voice of migrants heard in all international fora possible. With these measures, a renewed Mexican State will emerge; with the double challenge of sponsoring the welfare of the inhabitants in this territory, and the legal conditions of respect for the human rights of those who, at least until today, are identified as Mexicans.

References Aleinikoff, A., and D. Klusmeyer. 2002. Citizenship policies for an age of migration. Washington: Carnegie Endowment for International Peace, Migration Policy Institute. Argerey, P. 2001. La política de inmigración en la Unión Europea. Madrid: Instituto de Estudios Europeos de la Universidad San Pablo -CEU. Asensi, J. 2004. Políticas de la sospecha. Migraciones internacionales y principios constitucionales. Valencia: Tirant Lo Blanch. Balibar, É. 2003. Nosotros, ¿ciudadanos de Europa?, las fronteras, el Estado, el pueblo. Madrid: Tecnos. Barou, J. 2015. La planéte des migrants, circulations migratoires et constitution de diasporas á l´ aube du XXIe siécle. Grenoble: Presses Universitaires de Grenoble. Bolaffi, G. 1994. La barriera europea all´immigrazione. Il Mulino, Rivista bimestrale di cultura e di política, 354. Brown, W. 2015. Estados amurallados, soberanía en declive. Barcelona: Herder. Caño, A., and P. Ordaz. 2017. Entrevista exclusiva con el Papa Francisco. El País 14: 444. Castles, S., and M. Miller. 2003. The Age of Migration. International Population Movements in the Modern World. Wales: Palgrave Macmillan. Celis, R., and X. Aierdi. 2015. ¿Migración o desplazamiento forzado? Las causas de los movimientos de población a debate. Bilbao: Universidad de Deusto. Dembour, M., and T. Kelly. 2011. Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States. Wiltshire, Great Britain: Routledge. Heller, H. 1984. Teoría del Estado. México: FCE. Henderson, K. 2005. The Area of Freedom, Security, and Justice the Enlarges Europe. Wiltshire: Palgrave Macmillan. Johnson, D., and D. Post. 1996. Law and Borders, the Rise of Law in Cyberspace. Stanford Law Review 48.

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Monclús, M., and J. Brandariz. 2014. Políticas y prácticas de control migratorio, estudio comparativo del control de los migrantes en los contextos latinoamericano y europeo. Ediciones Didot, Buenos Aires. Palacios, L. 2008. Las migraciones internacionales desde una perspectiva histórica. In Migraciones internacionales en el espacio iberoamericano del siglo XXI, ed. M. Cano. Madrid: Dykinson. Panebianco, A. 2009. El poder, el estado, la libertad. La frágil constitución de la sociedad libre. Madrid: Unión Editorial. Sacramento, O. 2015. Schengen and the Security Obsession. Selective Citizenship, Exclusión, and the Ironies of Control. In The Borders of Schengen, ed. A. Cunha. Bruselas: P.I.E. Peter Lang. Solanes Corella, Á. 2008. Inmigración, derechos y exclusión. In El modelo de inmigración y los riesgos de exclusión, A. Izquierdo (Coord.), Madrid: Fundación de Estudios Sociales y de Sociología Aplicada (FOESSA). Uribe, E., and J. Romero. 2008. Victimización y vulnerabilidad en el Estado mexicano. Espiral 14 (42).

Enrique Uribe Arzate PhD in Law from the Universidad Nacional Autónoma de México. Teacher and researcher at Universidad Autónoma del Estado de México. Email: [email protected] Flor María Ávila Hernández A lawyer with a Master’s degree in Political Science and Public Law from the Universidad de Zulia. Ph.D. in Philosophy of Law and Human Rights from Università Degli Studi di Napoli Federico II. Currently a teacher in the Faculty of Law of Universidad Católica de Colombia. Researcher of the group Phronesis at the Faculty of Law of Universidad Católica de Colombia. Email: [email protected]

Schengen Area: Reflections on the European Border Crisis Gloria Nancy Zambrano Ramón

Abstract The Schengen Agreement, which abolished internal border controls, is examined from the perspective of the transfer to external border controls with other countries. It is important to note that, thanks to this new border control, there is evidence of a different degree of freedom of movement of citizens, which generates an enormous degree of trust and belief in the state. In addition, the evolution of this agreement is of great importance and a lesson to other States because initially, it was created as an agreement that evolved in European Union rules and regulations.

1 Introduction The Schengen Agreement guides Border control in Europe; it is an established agreement in which several European countries abolished internal border checks and transferred them to external border checks (with third countries). It all started in 1985, when the five States of the European Union (EU) decided to abolish external border controls, creating the Schengen Area. In a continent whose nations once spilled blood defending their territories, borders now exist only on maps. Each year, Europeans make 1250 million trips within the Schengen area. This model has had enormous economic benefits for Europe, demonstrating the extent to which the achievement of the Schengen is at the same time tangible, successful, and important to the daily lives of citizens and society. We must preserve and consolidate this common achievement. After two devastating world wars, removing borders, ensuring security, and building trust cost many years of effort. The creation of the Schengen area is one of the greatest successes of the EU and is irreversible. Free circulation has yielded a smaller, united Europe. This freedom must be enjoyed and valued. Get on the train, get in the car, and visit your neighbours. It is all possible without giving borders a second thought.1

1

European Commission (n.d.).

G. N. Z. Ramón (*) Universitat de Barcelona, Barcelona, Spain © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 D. Endrizzi et al. (eds.), Frontiers – Law, Theory and Cases, https://doi.org/10.1007/978-3-031-13607-8_8

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The Schengen Agreement is named after a small town in Luxembourg where the border of that country converges with those of France and Germany. The Agreement initially emerged as an initiative between governments; currently, Schengen cooperation is now included in EU rules and regulations. In June of 1985, Belgium, Germany, France, Luxembourg, and the Netherlands signed the Schengen Agreement in June 1990; the same countries signed the convention implementing the Agreement. The Agreement came into effect in March 1995. Border checks between Belgium, Germany, Spain, France, Luxembourg, Netherlands, and Portugal (Spain and Portugal had signed the agreement in June 1991) were abolished. In October 1997, border checks with Italy, which had signed the Agreement in November 1990, were eliminated. After signing the Agreement in April 1997, border checks with Austria were abolished in December 1997. In May 1999, the Treaty of Amsterdam integrated Schengen cooperation into the EU legal framework. The border checks with Greece were abolished in March of 2001 after it had signed the Agreement in November of 1992. The border checks with Denmark, Finland, Sweden, Iceland, and Norway were abolished, which had signed the Agreement in December 1996. In December 2007, land and sea border controls were abolished with the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia, and Slovakia. In March 2008, border controls at airports were abolished with the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Malta, Poland, and Slovenia, and Slovakia. In December 2008, land border controls with Switzerland, which had signed the Agreement in October 2004, were abolished. In March of 2009, border checks at airports with Switzerland were suppressed. In December 2011, border controls were abolished with Liechtenstein, which had signed the Agreement in February of 2008. The Schengen Area allows unrestricted travel between 26 countries in which more than 400 million citizens reside, a space without internal borders. Currently, the Schengen Area is made up of 26 European countries (22 are EU member States), namely, Belgium, Czech Republic, Denmark, Germany, Estonia, Greece, Spain, France, Italy, Latvia, Lithuania, Luxembourg, Hungary, Malta, the Netherlands, Austria, Poland, Portugal, Slovenia, Slovakia, Finland, and Sweden, as well as Iceland, Liechtenstein, Norway, and Switzerland. By belonging to the zone free of internal border controls, these countries: – Do not carry out border checks at their internal borders (that is, at the borders between two Schengen States); – They carry out coordinated controls, adjusted to clearly defined criteria, at their external borders (that is, at the borders between a Schengen State and a non-Schengen State). Therefore, it is possible to travel freely throughout the European Union. This means that flights from one of these states to a Schengen state are considered external and are subject to border controls. However, EU citizens have the right to move freely when traveling within the Union, both in Schengen countries and others.

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When a citizen of the European Union enters a non-Schengen EU State, in principle, the traveler is subject to a minimum inspection to verify identity by presenting travel documents, such as passport or identity document.

2 A Safe Space To guarantee security within this borderless area, the Schengen states to exchange information to address organized cross-border crime and terrorism, increasing police cooperation, concerning “hot pursuits,” cross-border surveillance, the creation of joint police centers and teams, as well as the use of the SIS.2

2.1

The Schengen Information System (SIS)

The Schengen Information System, now in its second generation, offers the information management infrastructure necessary to carry out border control and the subsequent security tasks within the framework of police and judicial cooperation. The participating states can input “descriptions” of wanted or missing persons, stolen or lost property, and denials of entry into the database, which can be accessed directly by all police officers and other agents and authorities responsible for law enforcement. This indispensable information is stored in the system to carry out their work. When additional information on SIS descriptions is required, the national SIRENE (Supplementary Information Request at the National Entries)3 is available to all the Schengen states. These offices coordinate the responses to the SIS descriptions and ensure appropriate action, for instance, for the detainment of a wanted person, when a person refused entry into the Schengen area tries to re-enter, or when stolen cars or identity documents are recovered. The introduction of a second-generation Schengen Information System (SIS II), with new services and features, such as biometric data and the interconnection of descriptions, was significantly delayed because of the complexity of the system. Initially, the system should have been launched in 2007; ultimately, it became effective on April 9, 2013. Its management, as well as that of the VIS and EURODAC databases, is the responsibility of the European Agency for the Oper-

2

The Schengen or SIS information system is a common information system that allows the competent authorities of the Member States to have information on certain categories of people and objects. European Commission - Migration and Home Affairs (n.d.-a). 3 Comisión de Ayuda al Refugiado en Euskadi (n.d.).

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ational Management of Large-Scale IT Systems in the Area of Freedom, Security, and Justice (EU-LISA).4 Hot pursuit allows police officers of a Schengen State to pursue criminals caught in the act of committing serious crimes across the border and detain them in the territory of another Schengen State. Cross-border surveillance allows police officers to continuously monitor suspected criminals even beyond the internal borders of the Schengen Area. As highly visible structures of enhanced cooperation, to date, the Schengen States have created some 50 bilateral or multilateral police cooperation centers in Europe, as well as a considerable number of joint teams. The Schengen regulations continue to allow national authorities to reintroduce internal border checks exceptionally and temporarily in the event of a serious threat to security or significant deficiencies at the external borders that could endanger the overall functioning of the Schengen Area. To facilitate travel for legitimate purposes without detriment to security, the EU provides funding to its Member States through the Internal Security Fund intended for “Borders.” From 2014 to 2020, a total of 2760 million Euros is available to improve the management and controls of the external border to better address irregular migration and expedite the processing of Schengen visa applications. To optimize police cooperation and the exchange of information within the Schengen area, the EU supplies 1 billion Euros from the Internal Security Fund destined for “Police”.5 The Schengen Area is outlined by 42,673 km of maritime borders and 7721 km of land borders. In the absence of internal border controls, the Schengen states are jointly responsible for guaranteeing the security of this common external border. Although the control of the external border has been effective, this does not imply that Europe has become a “fortress”.6 The promotion of business and leisure travel is beneficial to the European economies.7 The external border must also remain open for people who come to work and those seeking refuge from war and persecution. There are some countries whose nationals require a visa to enter the Schengen area. The Schengen states are governed by common rules for the issuance of Schengen visas for short stays, which are valid throughout the Schengen area.8 These visas allow travel and stay in the territories of the Schengen states for a maximum of 90 days in any period of 180 days.

EURODAC is a fingerprint comparison system for asylum seekers and irregular immigrants. This system was established by Regulation (CE) No. 2725/2000 of the Council of December 11, 2000 concerning the creation of the EURODAC System, under the Dublin Regulation. 5 EU immigration portal (n.d.). 6 Consulate General of Spain in Lima (n.d.). 7 Economía y empresa (2011). 8 European Commission (n.d.). 4

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The Schengen regulations also include a smaller border traffic regime that facilitates entry into the Schengen area for citizens of neighboring third countries that reside near the border. The Schengen states may enter agreements with neighboring non-EU countries, exempting from regular border checks and the need for a Schengen visa for residents living in border areas who frequently need to enter the Schengen Area. There is also a Visa Information System (VIS), which is a computer system that connects the Schengen consulates of third countries with the competent national authorities and all the border crossings of the Schengen States. It allows the competent Schengen State authorities to share information on visa applications; border guards, to verify, using biometric data (for example, fingerprints), that the person presenting the visa is their legitimate holder; and competent authorities, to identify undocumented people in the Schengen territory or those using false documentation. The authorities responsible for asylum issues also use the VIS.

2.2

The Visa Information System (VIS)

The VIS aims to improve the application of the common visa policy, consular cooperation, and consultation between the central authorities responsible for visas.9 The VIS connects all the consulates of the Schengen states in charge of issuing visas at all the crossing points at the external borders. At these border crossings, the VIS allows the border guard to verify that the holder of a biometric visa is indeed the same person who requested it. This verification is achieved by comparing the fingerprints in the biometric file associated with the visa and the data in the VIS database. The system has a high level of security to ensure its soundness and permanent availability, offering authorized personnel access to restricted data for authorized purposes. Police authorities and Europol have access to the system for the detection and investigation of terrorist offenses and other serious crimes. In October 2011, the VIS began to operate in all the consulates of the Schengen States in charge of the issuance of visas in North Africa, and now it has expanded to the rest of the world.

3 Smart Border The EU is currently working on a “Smart Border” program for its external borders and is also working on modifying the procedure for acquiring visas to improve links with other areas, such as tourism, and simplify the process for frequent travelers. It is

9

Di Stato (n.d.).

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also considering the possibility of creating a new type of visa, the “Travelling visa,” which would allow its holder to remain in the territory of one or two Schengen States between 90 days and a year, with the possibility of extending the visa an additional year. This program consists of an entry and exit system that will improve border checks and address irregular migration, as well as facilitate the crossing of borders to frequent or previously scrutinized travelers. The EU is moving towards more modern and effective border management using state-of-the-art technology. The Commission has proposed a “smart border package” to accelerate, facilitate, and strengthen border inspection procedures for foreigners traveling to the EU. This package consists of a Registered Travellers Program (RTP) and an Entry/Exit System (EES) that will simplify the process for frequent travelers from third countries at the external borders of the Schengen area and improve the security of the borders of the EU. 10 Border management policy has undergone considerable changes with the creation of instruments and agencies such as the Schengen Information System, the Visa Information System, and the European Border and Coast Guard Agency. The challenges associated with the increase of mixed migratory flows in the Union, as well as greater security concerns, have given way to a new stage of activity, with a change of orientation towards more direct operational support and the Europeanization of the border management policy. The goal is to have a single area without internal border controls—the Schengen area—that requires a common policy concerning the management of the external borders. Consequently, the intention of the Union is to establish common rules regarding the checks carried out at its external borders and to progressively establish an integrated system for the management of these borders.11 The rules that currently constitute the Schengen acquis on external borders, which is based on the original acquis incorporated into the legal order of the European Union by the Treaty of Amsterdam, are integrated into a broad spectrum of measures that can be divided into categories. One of them, which could be described as the central pillar of the management of the external borders, is the Schengen Borders Code. This code determines the rules concerning the crossing of the external borders, as well as the conditions governing the temporary re-establishment of controls at the internal borders. Because not all the member States have external borders requiring control, and not all are affected in the same way by cross-border traffic flows, the union uses its funds to offset part of the costs that the external borders entail for the member states.

10 Committee on Civil Liberties, Justice, and Home Affairs (LIBE) - European Parliament (2014–2019). 11 Treaty on the Functioning of the European Union (TFEU), arts. 67–77.

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The European Border and Coast Guard Agency (Formerly the Frontex Agency with Extended Tasks) The former Frontex agency12 has expanded, becoming the European Border and Coast Guard Agency under the Regulation on the European Border and Coast Guard.13 The main objective of this agency is to contribute to the development of integrated management of the external borders. Also, among its tasks is the effective management of migration flows and the provision of high-level security in the Union. At the same time, it helps safeguard free movement within the union while fully respecting fundamental rights. It is formed by the European Border and Coast Guard Agency and the national authorities in charge of border management. Its headquarters are in Warsaw, and its activities focus on the establishment of an operational strategy for border management and the coordinated assistance of all the memberstates. Several practical steps have been taken since the creation of FRONTEX to achieve more integrated management of the external borders. Similarly, some significant updates have been made on the technological infrastructure, as well as the development of a battery of joint border management operations and rapid response capacities.14 The changes have been fast-tracked because of the high number of people who have lost their lives in the Mediterranean in recent years and the huge influx of refugees and migrants.15

4 Joint Operations of the European Borders Several emergency operations have been brought about by the mass immigration trying to access European territory crisis, among them:

4.1

The Joint Triton Operation

This operation was commissioned at the end of 2014 (November 1, 2014) and substantially expanded in 2015, with the mission of monitoring the maritime border

12

European Union (n.d.). Ibid. 14 Ibid. 15 Abellán and Claudi Pérez (2015). 13

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mainly between Libya and Italy. The personnel and equipment of several member States provided Italy with the first line of operational support. Currently, the fight against illegal immigration in Europe is one of the main issues in Brussels. The request was presented by Italy in the face of the tragic shipwreck of the Lampedusa in which 300 immigrants died. Rome declared a state of emergency in the Mediterranean, indicating that, until August of 2014, over 100,000 boats had arrived at their coasts, a concern that draws the state of poverty, war, dictatorship, and oppression, closer to the border of Europe, producing a large influx of people seeking refuge in the European Union and reaching Italy by sea.16 To address the issue, the FRONTEX Agency established that 2.3 million euros per month should be invested for Operation TRITON, which would come from the reallocation of funds from the agency’s Internal Security and Budget Fund. However, these funds would be insufficient given the impressive migratory influx that would come.17 This individual Italian operation would cost 9 million euros per month, exceeding 26% of the European allocation, compelling the FRONTEX agency to approve a higher budget for 2015 to continue supporting the European border and especially the Italian program. Twenty-one-member states participated, indicating their willingness to participate. At its outset, the joint operation Triton was provided with human resources (a total of 65 participating agents) and technicians (12 technical means), and a technical team of four fixed-wing aircraft, one helicopter, four open-coast vessels, one coastal patrol boat, and two coastal surveillance boats.18 The Frontex’s role is essential in supporting the work of the Member States to control the borders in the Mediterranean region effectively and, at the same time, aiding people or ships in danger during these operations.19 By the end of 2015, the collapse of Libya produced countless numbers of immigrants, and maritime surveillance was reinforced, achieving the rescue of 5600 immigrants on the Italian coasts on the southern maritime border, 50% more than in the previous year during the same period.20 Fittingly, Brussels proposed the creation of a European framework to manage the reception of refugees fleeing their countries because of crises such as the war in Syria more homogeneously. Currently, few countries receive these fleeing foreigners, forcing them to embark on this dangerous and often deadly sea route. Less than half of the 28 Member States have reception policies for these modest continents of origin. According to Dimitris

16

Pardo (2014). Ibid. 18 Hablamos de Europa-Consultas ciudadanas (n.d.). 19 European Commission-Press Release Database (2015). 20 Abellán (2015). 17

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Avramopoulos, “This will be a step forward to make sure that countries truly share responsibilities in this matter”.21

4.2

The Joint Operation Poseidon

The main objective of this operation carried out in Greece was to deal with illegal immigration by sea, organized by criminal networks using ships of any kind at the maritime borders of the EU Member States in the Eastern Mediterranean. The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, in the Aegean Sea (FRONTEX),22 implemented this joint operation for 10 days (between June 25 and July 5, 2006) in two geographical areas, land borders and maritime borders. The basic methods used during the operation were: – Surveillance of maritime traffic (vessels, boats, yachts, etc.) – Checking of vehicles, boats, vessels, yachts, individuals, and suspicious objects, etc. – Detection of means of transportation used for illegal activities. – Detention of persons involved in illegal activities (illegal border crossing, smuggling, trafficking, etc.) Geographically, Poseidon focused on the Greco-Turkish land borders. The joint operation was implemented at the Kipi border crossing post, which is the most important border crossing between Greece and Turkey. At the same time, the operation was implemented in the Green Line between the two countries to detect immigrants crossing borders illegally. Concerning the maritime borders, the joint operation was implemented for 10 days in the areas of the eastern Aegean Sea (to address influxes from the Turkish coasts); the central Aegean Sea (to address influxes from the Bosporus, the Turkish coasts, and the coasts of Egypt), as well as in the ports of Patras, Igoumenitsa, Brindisi, and Ancona (for additional controls of the Schengen Area and the second line of police checks).23 Two EU Member States, Greece and Italy, participated actively in this operation. In addition, FRONTEX (as the official organization), Germany, France, Spain, United Kingdom, Albania, Austria, Romania, Ukraine, and Italy, as well as EUROPOL, participated as observers. The competent authorities monitored crews, cargo, and passengers, as well as checks on ships and ferries, in protected areas of the Greek and Italian ports of Patras, Igoumenitsa, Bari, and Brindisi. Several Hellenic

21

European Commission (n.d.). National authorities carried out all activities that could have legally binding consequences (arrests, arrests, interrogations). 23 Etic-Grupo transfronterizo sobre tráfico ilegal e inmigración de personas (2011). 22

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patrol boats carried out checks and patrols in preselected maritime regions of the eastern Aegean Sea (islands of Mytilene, Chios, and Samos). Similarly, the European Border and Coast Guard, together with other relevant Union agencies, played an important role in another aspect of the response given to the challenges faced by some Member States, the establishment of “hot spots” and the deployment of the so-called migration management support teams. These teams were managed by the European Asylum Support Office, EUROPOL, and the European Border and Coast Guard, in partnership with national authorities and other agencies. Their objective was to identify, screen, and register migrants in their logs upon their arrival to the union, as well as to organize return operations for those who did not have the right to remain in the union. The European Border and coast guard took over the direction of the regional union operational groups; they were based in Catania for the “hot spots” of Italy and in Piraeus for those in Greece. Both maritime operations and direct support to the member States at the “hot spots” represented a substantive response at the European level to what could be considered both a humanitarian crisis and a border management challenges.24

5 The Migration Crisis The migration crisis was the term used to refer to the Mediterranean migratory or European refugee crisis, which entailed an emergency humanitarian situation that extended until 2015, caused by the uncontrolled increase of refugees requesting asylum and employment and others in extreme conditions of vulnerability. Nearing December 21, 2015, more than 1,006,000 people had entered Europe, of which more than 942,000 had applied for political asylum, and 3406 had died in the attempt.25 As stated by the Vice President of the European Commission, Frans Timmermans, it was the largest migratory and humanitarian crisis in Europe since the Second World War,26 as well as the most concerning for the international community because of the inability of the authorities of the member countries of the EU, affected to find a solution to the uncontrolled humanitarian crisis. Desperate to slow down this migratory overflow, many of the member countries decided to build border walls to contain it. Hungary, which is one of the countries with the largest number of immigrants, decided to build a 4-meter high and 175-kilometer-long wall on the border with Serbia to block the entry of undocumented individuals.27

24

Escuela Neijing (n.d.). BBC News (2016). 26 RT News (2015a). 27 Ibid. 25

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According to the UN Refugee Agency (UNHCR), up to September 7, 2015, 951 refugees and 412 migrants had crossed the Mediterranean. According to figures by the International Organization for Immigration (IOM), 999 refugees and 343 migrants, mostly from Syria, Afghanistan, Eritrea, Nigeria, Albania, Pakistan, Somalia, Iraq, Sudan, Gambia, Egypt, Morocco, India, Nepal, Bhutan, Sri Lanka, and Bangladesh,28 entered this sea route to the EU, mainly through Greece and Italy,29 to continue their transit to Central and Northern Europe.30 However, the problem was not only the asylum seekers from the war zones of Africa or the Middle East. The United Kingdom restricted immigration from the rest of the EU, especially in the case of Polish emigration after the EU expansion in 2004. In fact, immigration into the EU/EEA increased by 10% of the United Kingdom’s net immigration in the 1970s to 40% in 2007. In his speech on the EU in Bloomberg delivered on January 23, 2013, David Cameron addressed immigration issues. The UK Independence Party (UKIP) or Independence Party of the United Kingdom, led by Nigel Farage since 2006 and Lord Pearson since 2009, opposed uncontrolled immigration, stating that immigration had become the central theme of the UKIP electoral program since 2013. Most immigrants in Europe are not refugees; they are simply economic migrants seeking a better life. This distinction is important because according to the Geneva Refugee Convention of 1951 under the mandate of the UN, after the destruction produced by the Second World War, which left millions of evacuees and deportees wandering through a Europe devastated by war, and according to EU laws, European countries are required to offer shelter or other protection to people fleeing from war zones or persecution. Although initially, the right to asylum ratified was limited to Europeans, this limitation was abolished in 1967 and is now recognized worldwide. The threat posed to the EU is the risk of reviving old tensions between European countries and that had already been overcome, as well as those that would pose a cultural and economic risk. Both the influx of refugees and migrants that are currently registered and the resurgence of the terrorist threat are generating a greater Europeanization of border management. Another issue of concern is the stereotype of violent Muslim refugee immigrants, resulting from the events of September 11, the advances of ISIS (Islamic State), or the recent attacks that have occurred have led to extreme tension in the citizens of the EU, promoting xenophobic and Islamophobic issues among the extreme right.31 Against this background, the European Council has decided to strengthen the EU’s external borders by reinforcing those located in Turkey and the eastern Mediterranean Sea; this is the only measure implemented until such time32 that can have positive results for uncontrolled migration.

28

RT News (2015b). The United Nations Refugee Agency (n.d.). 30 International Organization for Migration (2015). 31 Open Mind (2016). 32 Euroefe-Euroactiv (2016). 29

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The agreement signed by the European Council and the Turkish government includes a series of decisions that affect the internal functioning and the relations of the community with Turkey. Between the measures adopted by both, we find: – The return to Turkey of all immigrants in an irregular situation crossing from this country to the Greek islands since March 20, 2016. – The hosting reciprocity between the two territories through the mechanism of “one for one” in which the community will admit one Syrian refugee for each Syrian deported to Turkey from Greece; this, to discourage irregular arrivals to community territory.33 – The Turkish authorities will take all necessary measures to avoid illegal migration routes by sea or land. – Once the illegal routes are interrupted, a humanitarian system will be activated to request asylum.34 The Council also committed to taking a series of internal provisions focused on the migration problem, which includes actions such as more work in the “hot spots,” support to Greece to return irregular immigrants to Turkey, providing emergency humanitarian support to the Hellenic country, accelerate the relocation of migrants, create a European Coast and Border Guard, and work on a European migration policy that includes the Dublin Regulation. Ultimately, the EU had no choice but to encourage its member states and third countries, to whom with the UNHCR it increased financial assistance, to intensify their efforts to accommodate refugees. Other measures included ensuring that member states accelerate the relocation process with an adequate registry of migrants before processing their location and that they use the EURODAC35 tools provided to them, as well as approving the budget increase to reinforce the borders through the FRONTEX agency,36 thereby intensifying the surveillance and monitoring of migrants and their origin for their relocation. Likewise, ensure that the member states, facing lack of cooperation by migrants upon their arrival in the European Union, and fully respecting fundamental rights and the principle of non-refoulment, make use of all the possibilities provided by the EU acquis, such as (1) asylum procedures at borders or transit zones; (2) accelerated procedures; (3) non-admissibility of subsequent asylum applications by the persons concerned; and (4) forced measures, such as, as a last resort, detention for a maximum period necessary for the completion of the corresponding procedures. In addition to the existing guidelines concerning the systematic collection of fingerprints, the Commission was invited to develop, in cooperation with EASO and FRONTEX, further practical management of keeping records, considering the

33

Abellán and Pérez (2016). http://internacional.elpais.com/internacional/2016/03/07/actualidad/14 57352301_920991.html. 34 Euroefe-Euroactiv (2016). 35 European Commission - Migration and Home Affairs (n.d.-a). 36 Frontex (n.d.).

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Dublin Regulations, of relocation decisions and international obligations on readmission. Moreover too, in some way, it requests EUROPOL37 to create a European center on migrant smuggling to reinforce its ability to support member states to better prevent and combat trafficking of migrants.

6 Conclusions As we have been able to see, the crisis concerning the borders in Europe continues to worsen, and the solutions proposed so far have not been the best. Attempts have been made to redistribute the refugees among the member countries. However, there are some EU members that do not acknowledge these provisions, which, in the end, must be imposed, although voluntary actions would be preferred. The solution could be to create a new fund to alleviate the conditions of countries with migratory crises to prevent the relocation of refugees and rather to return them to their country of origin. However, this would entail an even worse overflow than the current one. Despite the various contributions from donors, the UN funds are insufficient to cover all the needs for the number of refugees, much less for the number of economic migrants. Apparently, this crisis will last many more years; it will be a prolonged emergency that will require more humanitarian aid while the situation of displacement towards the EU is solved jointly. A viable solution would be to extend the opportunities of employment for refugees, self-sufficiency, and subsistence. This is not an endorsement of border closures; as they constitute a limitation and violation of Human Rights and an appeal to international conflict, introducing a policy of fear and social, economic, and moral exclusion, with a narrow focus that hinders the advancement of humanity.

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Polizia Di Stato. n.d.. El Sistema de información de visados. Polizia Di Stato. Retrieved from: https://www.poliziadistato.it/articolo/315853b74b3ef3b796786672 RT News. 2015a. Mapa: ¿Cómo se distribuyen los refugiados en la peor crisis migratoria en Europa?. RT News. Retrieved from: https://actualidad.rt.com/actualidad/184594-maparefugiados-europa-crisis-migratoria ———. 2015b. Todas las claves de la peor crisis migratoria en Europa desde la Segunda Guerra Mundial. RT News. Retrieved from: https://actualidad.rt.com/actualidad/184611-crisismigratoria-europa-puntos-clave The United Nations Refugee Agency. n.d. Operational portal. Refugee situations. The United Nations Refugee Agency. Retrieved from: http://data2.unhcr.org/en/situations/mediterranean. Gloria Nancy Zambrano Ramón Ph.D. student in Law and Political Science at Universitat de Barcelona. Lawyer. Master’s degree in Penal Law. Specialist in Human Rights and International Human Law. Graduate in Advanced Studies in Public International Law. Email: gloirezam@yahoo. es

Colombian-Venezuelan Land Border Relationship: Human Rights Vulnerability and Geopolitical Context Flor María Ávila Hernández, Jaime Cubides Cárdenas, Fernanda Navas-Camargo, and Paula Andrea Barreto Cifuentes

Abstract The subject of this research is the Colombian-Venezuelan land border, reviewed under the perspective of methodological pluralism and its current significance as a particular typology of land border in its different dimensions (cultural, ethical, political, economic, anthropological). From this perspective, it is configured as a sui generis case study, given the geopolitical, historical, and diplomatic relations between bordering countries and in the international context in general. Emphasis is placed on the need to make new proposals regarding land border studies from an interdisciplinary and cross-border perspective, moving away from the traditional historicist and geopolitical approaches that have been embracing is positivist visions of the National State emphasizing the processes of militarization, bureaucratization, centralization, and legitimation thereof and the concept of national sovereignty. Although there are numerous theoretical contributions on the border, almost all revolve around the concept of the Nation-State. The situation of the Colombian-Venezuelan land border had become an issue of great relevance and controversy for the region given the rapid growth of the migratory flows from Venezuela and the simultaneous violation of human rights, which had its peak in the year 2015 when the land border was closed, and that was set again in the scope in the year 2020 when the Interamerican Commission on Human Rights (IACHR) visited to monitor the human rights situation in Venezuela. Different international organizations have intervened, but we focus this study on the

This chapter is the result of the research projects entitled Contemporary challenges for the protection of human rights in emergency states and through peace building developed with the groups Person, Institutions and Demands for Justice and Phronesis, linked to the SocioLegal Research Center (CISJUC) at the Faculty of Law of Universidad Católica de Colombia, in Bogotá. Both groups are recognized by MINCIENCIAS as categorized as A1. F. M. Ávila Hernández (*) · J. Cubides Cárdenas · F. Navas-Camargo · P. A. Barreto Cifuentes Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia e-mail: [email protected]; [email protected]; [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 D. Endrizzi et al. (eds.), Frontiers – Law, Theory and Cases, https://doi.org/10.1007/978-3-031-13607-8_9

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role played by the Inter-American Human Rights System with the intention of making theoretical evidence of the different perspectives of the analysis carried out of the Colombian-Venezuelan land border and the accumulation of interventions of this international organization. The structure of this chapter is as follows: (i) concept of land border, (ii) Colombian-Venezuelan land border relationship, (iii) international law in relation to the Colombian-Venezuelan border, (iv) border integration zones, possible solution to the Colombian-Venezuelan crisis, (v) Colombian-Venezuelan border relationship in the Inter-American Human Rights System. In the end, conclusions.

1 Introduction International borders and their spaces of inter influence make up privileged frameworks for experimenting, analyzing, and deepening the mechanics and effects of profuse phenomena, relatively new such as the blurring of the national border, its porosity, industrial relocation, the irruption of transnational regions, and their subsequent new borders among others. Hence, to deal with such phenomena, it is necessary to develop a new gnoseology and to analyze the legal, political, psychosocial, and economic effects of the data extracted from reliable research on the subject of borders, which, without slowing down the adjacent progress of specialized studies and other research, will then allow us to obtain a comprehensive view of the phenomenon on the “land frontier” or “border”. The preponderance of specialized studies on borders produces an effect that tends to distort reality due to the absence of official figures on facts and records that have generated frictions in the relationship between these two brotherly countries, given the human rights violations that have taken place. Specialized research about borders is very important; thus, diplomatic relations between nations depend on it. The study on “frontiers” must be in accordance with other theoretical and methodological improvements that make possible the emergence of an integrated vision of international land borders. The new dynamic generated by the ongoing processes of globalization, in its triple aspect—global flows, radical individualism, and identities of resistance-, was already justified by Manuel Castells,1 arguing that it requires new concepts and theories that contribute to the geopolitical hermeneutics between bordering countries since the land frontier reality is very complex and permeable. Colombia and Venezuela have for many years maintained a relationship with ups and downs as problems of different kinds have arisen but also been overcome over time. The disputes have been framed mainly in the political sphere given the impact

1

Castells (1998), p. 393.

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that the presidents of each of these countries have had on border relations, in addition to the involvement of groups outside the law that pursue activities such as drug, weapon, and human trafficking, among other illicit actions. However, a situation has arisen in recent years that generates controversy and concern for the community at large. This concern that has transcended to such an extent that it has caught the attention and need of intervention of international organizations is the ever-growing violation of human rights. International organizations only intervene once the disputes are not possible resolved by domestic institutions and law, and the transnational bodies must be approached to limit this violation; examples include the Organization of American States and the Inter-American Human Rights System. The Inter-American Human Rights System is of great importance at the regional level given its sound interventions to prevent human rights violations which have included different actions regarding the border relationship between Colombia and Venezuela. Thus, the purpose of this document, which is to cover the analysis of the border relationship in terms of human rights, is framed in three thematic axes as follows: (I) the generalities of the Inter-American Human Rights System, evidencing its main characteristics, its composition, and its importance in domestic law. (II) Review of the Colombian-Venezuelan border relationship, evidencing the historical evolution and the main problems that arise in this territory. (III) The relationship between the first and second thematic axes, i.e., the action taken by the Inter-American Human Rights System in domestic law, specifically in this territory. In the end, conclusions generated from the collected information and the assumptions that are evidenced from a theoretical and objective perspective will be provided. All the above, in order to answer the research question, what are the main characteristics of the Colombian-Venezuelan border relationship, and what has been the impact of the Inter-American Human Rights System on it? The tools and procedures used for the elaboration of this scientific work were extracted from legal, historical, geographical, sociological, and anthropological approaches, among others.

2 Land Frontier or Border Concept The boundary aspect of a border is the demarcation that delimits nation-states and other territorial entities while having the power to define the identities of the people who cross them and who are circumscribed and excluded by them. Likewise, a border delimits the internal sphere in which that order has the power to construct and define legitimate identities, in contrast to illegitimate ones, such as those that would be, for example, “undocumented persons or persons in an irregular migratory situation”. Moreover, a border has such an effect because there is a formal and informal constellation of powers, that is, a certain territorial political order that builds

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and monitors borders to ensure national security and defense. In addition to shaping and managing geopolitical boundaries, borders, both in their formal institutional expression and in their popular and more everyday informal manifestations, also determine the identities of people who are divided by borders and who cross them (border crossing). Along the same lines, borders such as nation-states are largely defined by the fact that they have borders, unlike other normative orders.2 The land frontier is a geographical area located at the border of the territory of a State and is the end point of its sovereignty and jurisdiction. Unlike the “boundary,” which refers to an imaginary line separating the territories of two States, “border” is a broader term, referring to an area of life and activity where there is a continuous economic, social and cultural exchange between several States and peoples. What is peculiar about the land border is the continuous trafficking of people between the two countries, not unusual for nationals of one state to work or study in the other. In addition, borders are the natural areas of surveillance and exercise of State sovereignty given their purpose of territorial protection. Because they are at the extreme ends of countries, land borders can be vulnerable to organized crime, micro trafficking, smuggling and drug trafficking, human trafficking, and the existence of belligerent groups, among other problems. On the other hand, geopolitical relations between states have a direct impact on border areas. This arouses the existence of radically different land borders throughout the world, from the borders within the European Union, where there is free transit of people with total freedom, with cooperation and solidarity as its guiding 3 principle, to the border between the State of Israel and the Palestinian territories, where there is tight military control, and the movement of people and vehicles is restricted, where the principle is the all-out defense of state sovereignty. Borders, being a broad concept, contrary to what is often believed, are not demarcated only when there is land involved since there are different types of borders: air, territorial, fluvial, maritime, and lake. This means that, in many cases, the border of one country with another one is not defined only where there is land, since in some cases, this division is carried out using rivers, seas and are characterized by the high degree of surveillance to prevent mass entries of immigrants, drugs, and goods, among others. What is paramount is the importance of borders, since they demarcate the sovereignty and territory of a country and that this territory is not only land but also air, lake, sea, and river.

2

Kearneay (2015), p. 84. To the point of housing and businesses on the same border line, by the principle of the free movement of goods, persons and goods as the foundational basis of European integration.

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3 Colombian-Venezuelan Border Relationship 3.1

Location

The Colombian-Venezuelan border is located in the Táchira Depression, one of the two Teutonic trenches that divides the Andes. This Depression is located in the southwestern region of Venezuela in the state of Táchira and northeastern Colombia, especially in the Department of Norte de Santander. Thanks to these Depressions in the territory of Táchira, mobilization of people between Colombia and Venezuela has been possible since ancient times and has become of fundamental strategic and geopolitical importance for both: the relations between the south and the northwest of the country; as well as for the export of Colombian products to the rest of the world:4 In the case of Venezuela, one of the regions with the greatest border activity throughout history has been the one currently undertaken by the States of Zulia, Trujillo, Mérida, and Táchira and the Departments of La Guajira, Cesar and Norte de Santander in Colombia, which has been called the Marabina historical region. In fact, the binational trade between the two countries today is sustained based on the tradition of intense cultural and socioeconomic exchanges generated from a distant aboriginal past, before the arrival of the Spaniards, and throughout the sixteenth to nineteenth and early twentieth centuries.5

Colombia and Venezuela share an extensive border of more than 2200 km, much of which is in inhospitable areas and far from the main population centers of both countries. In addition, between Colombia and Venezuela, a territorial dispute over marine and underwater areas persists unresolved, which from time to time emerges as a marker of bilateral relations.6

3.2

Historical Evolution

The historical evolution of the Colombian-Venezuelan relationship is framed in five stages: First, a period that oscillates between 1830 and 1914, in which it was sought to establish the border lines. Subsequently, from 1969 to 1989, the bilateral agenda focused on the issue of the Gulf, leaving aside priority social, economic, and political issues inherent in two countries that share more than 2,000 kilometers of borders, on which various types of conflicts converge. The third stage of evidence is the new world order that was built after the collapse of the socialist world. The bilateral agenda was expanded to other issues. It gave way to the so-called degolfization in the relationship, with which it was advocated to analyze the problems of economic and social order jointly, with emphasis on the border area. A fourth stage began with the ascent of Hugo Chávez Frías to the presidency and the

4

Bustamante (2004), p. 570. Cardozo (2002), p. 456. 6 Komblith (2004), p. 127. 5

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subsequent election of Álvaro Uribe Vélez in Colombia. The particular styles of the two presidents led to the issue of national security becoming paramount, and differences were reached that led to fears of a bilateral armed conflict—coupled with a diametrically opposed view of foreign policy. On the one hand, Colombia, attached to the traditional respice polum, conceives the United States as its main ally. On the other hand, Venezuela, which begins an international journey through which it proposes the generation of alliances with those countries considered opposed to US interests in the world. Finally, the fifth stage of reconciliation and convergence, around the economic and commercial issue, is defined with the arrival to the presidency of Juan Manuel Santos (in 2010), who sought from the beginning the reestablishment and normalization of binational relations. Throughout this historical journey, it can be identified as the theme of security demarcated and redefines the relationship and the processes of rapprochement or distancing. The importance of the topic is of such importance that it influences trade and economic variables. With greater tension and securitization, bilateral problems in trade, the economy, and finance increase.7

However, he points out that from the 90s to the present, the Colombian-Venezuelan border conflict has focused on the areas of the guerrilla problem on the border. In the face of this diplomatic tension, the heads of state, the chancelleries, and the media have constructed a version of the border reality marked by the border problem and the definition of the country’s sovereignty.8 One event that is important to mention is the public statement made by former president Hugo Chávez in August 1999, saying that he would meet with FARC guerrilla spokesmen without consulting the Colombian Government. That fact began to deteriorate trust between the two countries. Repeatedly has been stated that “every day Chávez’s actions show his tendency to support the FARC in a political way since he even grants them political status”.9 Since 1999, due to the political-ideological divergences, geopolitical vision, and international insertion between the governments of Venezuela and Colombia, there has been a notable setback in binational economic integration.10 All this despite the fact that there were periods (2003-2008) where Pragmatism and Venezuela’s supply needs prevailing, allowing binational trade to reach unprecedented levels. This was still achieved with Venezuela's exit from the CAN (2006), the existence of strong diplomatic controversies, differences in the ideologies of governments, development strategies, and economic policy. Subsequently, the ideological-political differences in the development strategies and in the geopolitical visions of both governments generated a new crisis in 2009, which significantly pushed back binational trade.

It can be concluded that the main conflicts between Colombia and Venezuela are framed within political and ideological positions, but not by economic and commercial positions.11 These conflicts, which are mainly caused by political and ideological differences, have caused both economic problems and victimization problems since, there have

7

González and Galeano (2014), p. 93. Jiménez (2008), p. 263. 9 Alegría and Arroyo (2010), p. 99. 10 Gutiérrez (2013) p. 46. 11 Author’s translation. Pabón et al. (2015), p. 164. 8

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been homicides and kidnappings, among other crimes on the ColombianVenezuelan border. The Main Border Closure The tension between the two states (due in large part to the rhetoric of the governments of Hugo Chávez and Nicolás Maduro) has been increasingly sustained, and the border situation changed radically, until reaching the crisis of 2015 where the Venezuelan State ordered the closure of the border for a certain period of time. Afterward, it has been widely recognized by the international community that not only within Venezuela but also at the border, human rights violations are a permanent situation. In the year a 2020 historic visit was made by the IACHR to the territory, and even though they weren’t admitted in Venezuela, many citizens from that country were able to have their voices heard, and almost 200 complaints were presented, highlighting the following: – – – – – – – – –

Violations of the rights to equality before the law Pursue of arbitrary arrests Infringements to the right of liberty and to personal security and integrity Negligence to the protection of personal reputation and honor as well as to private life and family life. Harms against the protection of children and their mothers Vulnerabilities to free movement and residence Nonobservance to the preservation of well-being and health Violation to the right to work, to the rights of property and home, and to the right to education. Disregard to the prohibition of collective expulsions as well as to the principle of non-refoulement as well as to seek and to receive asylum.

Those many complaints derived from what had previously begun when the border was closed. – On August 21st, 2015, the Venezuelan government, through Emergency Decree No. 1950, unilaterally ordered the closure of the border in 4 municipalities of the State of Táchira: Bolívar, Ureña, Junín, Libertad, and Independencia. It then spread to the municipalities of Ayacucho, García de Hevia, Lobatera and Pan-American. This decree had an initial length of sixty (60) days, which was then extended.12 – On September 7, 2015, a partial State of Emergency was decreed for the State of Zulia, under No. 1989, in Official Gazette No. 40,740, affecting the municipalities of Mara, Guajira, and Almirante Padilla. – On September 15, the border was closed in the municipalities of Páez, Rómulo Gallegos, and Pedro Camejo in the State of Apure.

12

Decree No. 1.950 declaring a State of Emergency in the municipalities of Bolívar, Pedro María Ureña, Junín, Capacho Nuevo, Capacho Viejo and Rafael Urdaneta in the state of Táchira. Decree No. 1.950 of the Bolivarian Republic of Venezuela.

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– According to figures from the United Nations Development Programme in Colombia, more than 20,000 people have been affected, with 1467 deportees and 18,619 returnees.13 – The State of Emergency Decree was prolonged. – On May 13, 2016, a new State of Constitutional Emergency and Economic Emergency was decreed under No. 232314 which allowed President Maduro to open by decree without parliamentary control, expressing that he could extend it until 2017, on the grounds that he needed special powers to fight an “economic war” of businessmen and politicians, whom he blamed for the acute economic crisis in Venezuela. – It should be noted that among the powers granted to the Executive, there is the control of the budget, thereby violating the principle of fiscal legality, the possibility of intervening in companies and private property (thus continuing the model of expropriations) in order to guarantee supply and the suspension of sanctions against high-ranking government officials; in this way, measures are given for total control of the economy. President Maduro, through this measure, also indicated giving “extraordinary” powers to the authorities to guarantee, including through the intervention of the Armed Forces, the distribution of basic necessities. – These measures were decreed for the term of sixty (60) days extendable for the same term, in accordance with articles 337, 338, and 339 of the National Constitution, a time that has been extended to the present, in clear violation of international human rights standards. – By January 2017, the first State of an Emergency decree of the year was signed, which included the approval of contracts and issuance of debt and authorizing the national budget without the permission of the legislature, as well as the new powers of President Nicolás Maduro, according to the new economic decree.

“Due to the magnitude of deportations and returns on the border of Norte de Santander, where more than 90% of deportees and returnees have entered, media and institutional attention have focused on this region. Fourteen thousand three hundred twenty-one returnees have been characterized and entered into this department’s Single Registry of Victims (RUD). However, there is also a significant flow of people in the border areas of La Guajira and Arauca, where more than a thousand people have entered in recent days and where local response capacity is lower. The information available on the returnee population in these two departments does not reflect the magnitude of the problem because the registration and characterization process began late. Therefore, it is difficult to estimate the number of returnees who have entered the country without being registered. This would also be the case due to multiple informal crossing points along the border where there is no institutional presence. There is also a lack of information on the border situation in Vichada, where there is also a “drop-by-drop” return of Colombians from Venezuela.”. United Nations Development Program (2015). 14 Decree No. 2.323, declaring a State of Emergency and Economic Emergency, given the extraordinary social, economic, political, natural and ecological circumstances that seriously affect the national economy. Decree 2.323 of the Bolivarian Republic of Venezuela. 13

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Features and Main Problems Human Rights Situation on the Colombian-Venezuelan Border

On the borders between the Zulia and Táchira regions, as well as the border known as Paraguachón, serious problems have been highlighted with regard to the consequences of illegal activities such as extraction smuggling, among others, which are highlighted daily in actions due to the shortage of basic necessities in these border states, especially in Venezuela. All this is due to the extraction of food items, goods, spare parts, among others, carried out by both national and international economic groups, in which they introduce by the so-called “trails”: goods, food, and all kinds of basic necessities, which results in the violation of the rights to property, development, food and the right to peace of the neighboring countries. Another of the arguments to be considered, in the case of the ColombianVenezuelan border, is that many citizens are unaware of the consequences that “the fractionation in the neighboring countries” would entail, so we must look from the perspective of fact and law to warn that in these border populations in the last 15 years, the problems associated with the so-called “economic war” had worsened, as well as the crises of violence that have been generated since February 12, 2013, in Venezuela, when the opposition protested against the regime. Mainly, the Colombian-Venezuelan border region has been characterized by the significant absence of the State, evidenced by the deficiency and almost non-existence of health services, education, recreation, infrastructure, among others, strong militarization and the repeated and systematic violation of the Human Rights to the population living in this region.

3.3.2

Smuggling and Drug Trafficking

Venezuela’s government under President Nicolas Maduro has two fundamental reasons for the border closure: smuggling extraction from Venezuela into Colombia and the presence of Colombian paramilitary groups on Venezuelan territory. Popularly known as “bachaqueo”, smuggling goods from Venezuela to Colombia is not a new problem. For decades, smuggling has been a socio-political problem at the land border, especially gasoline, due to the fuel price subsidy in Venezuela. In recent years, the problem has had an unprecedented scale, mainly due to the serious Venezuelan economic crisis and the subsequent decrease in the people’s purchasing power. This situation has forced people to look for other sources of income to survive, and the existing price control has generated an immensely

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lucrative business coupled with the phenomenon of corruption of the authorities who tolerate or actively participate in smuggling15: – In 2014, four valuable targets were dismantled with 26 arrests. Additionally, another 188 people were arrested in flagrante delicto, 51 vehicles immobilized, and 49.191 gallons of fuel and merchandise, all of which were valued at 23.887 million pesos.16 – 65% of the people who buy in Venezuelan shops resell the products either internally or through smuggling.17 – Only in Maracaibo, there are 22 thousand people dedicated to bachaqueo.18 The drug trafficking phenomenon ceased to be a problem exclusive to Colombia, and it now affects the entire Latin American region. In the bordering mountains, coca and poppy are planted, and the complete process from sowing to export is carried out, with the participation of citizens of the two countries, protected by the violence of armed criminal groups19: Border security has theoretically been a state issue for Venezuela and Colombia that has aroused greater interest in Venezuela because of the negative consequences that the actions of guerrilla groups, paramilitaries, and common criminals have generated, moving from Colombian territory to Venezuelan territory and vice versa, all this has occurred over the course of the last two decades. To such an extent came the tension that some Venezuelan authorities in charge of the control and entry of foreigners identified Colombian nationality as synonymous with guerrillas, drug trafficking, or kidnapping and saw Colombian nationals as enemies and foisted on them the responsibility for their misfortunes, in an obvious expression of xenophobia. The incursions by Colombian guerrillas and paramilitaries have served as a justification for various authorities to arrest and sometimes mistreat the inhabitants of this area, accusing them of belonging to or collaborating with these groups. Indigenous communities have been the most frequent victims of police or military action by the Venezuelan authorities.20

This is related to the environmental degradation derived from the above situations. Such problems arise from the predation of natural resources, especially forest resources. Another problem is the irrational exploitation of soils and anarchic land

“The director of the Tax and Customs Police, General Gustavo Moreno, highlighted that since 2004 the Joint Binational Center for Command and Control against Smuggling, based in Cúcuta, Colombia, and San Cristóbal, Venezuela, was created to counteract this scourge. Figures for 2015 show that eight criminal structures have been dismantled, with 87 people captured for different crimes. In addition to another 236 people were apprehended in flagrante delicto (37 Venezuelans and 199 Colombians). A total of $40,087 million has been seized, and 153 vehicles have been immobilized. Fuel took to 356,343 gallons, but 1186 heads of cattle, 2 million 243,867 packs of cigarettes, 111,223 liters of liquor, 226,000 units of beer, and 186,670 kilos of meat were also seized, according to Polfa.”. Amado and Molina (2015). 16 El Universal (2015a). 17 El Universal (2015b). 18 Sumarium (2016). 19 Cadena (2007), p. 104. 20 Ibid. 15

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tenure. The water potential of the basins of the Catatumbo, Escalante, and Chama rivers requires attention since the middle and upper basins can affect them irreversibly with decisive consequences for the water flow of Lake Maracaibo, by considering that the Catatumbo River contributes to Lake Maracaibo with about 50% of the freshwater water flow21: Colombia has continued, Venezuela has reversed the neoliberal policies of the nineties. Colombia has further denationalized its economy; Venezuela has nationalized key sectors. The Venezuelan economy seems to be losing efficiency, while the social function increasingly takes precedence over the logic of the market (profit), allowing a more equitable distribution. Colombia has favored opening up to the most dynamic markets over deeper regional integration. Venezuela, on the contrary, has prioritized (deep) political integration over shallow trade integration. This last sequence is more difficult, while openness is indispensable (although insufficient) to take advantage of globalization.22

3.3.3

Vulnerability of Rights at the Border

The state of emergency decrees issued by Venezuela, which have been prolonged over time, have in practice resulted in the Government stepping over the citizens of both countries, given the use of extraordinary powers of the National Executive. Although constitutionally provided for, it has absolutely suspended basic constitutional guarantees, such as the right to free movement, free assembly, life, the right to due process, the right to information, and other intangible human rights. This indefinite suspension of rights entails an abuse of authority and the violation of international human rights standards in accordance with the international treaties signed by Venezuela, especially the standards provided for in the American Convention on Human Rights. For example, the State of emergency decree No. 1980, authorized not just the seizure of food, but allowed the Venezuelan State to fully control transit through indigenous territories, which cover the municipalities in which it decreed the border closure. This was, to the indigenous people, a clear sign of State terrorism, discrimination, and criminalization of the Wayuu and Añuu peoples, blamed and sentenced as bachaqueros, and subject of the anti-smuggling law. To the Venezuelan Government, these indigenous communities are the generators of economic instability and social unrest in the country. Thus, the decree flagrantly ignores the rights of indigenous peoples to self-determination, to free movement in their territory, to choose their own authorities, to live according to their customs and customs and cultural integrity, and to prior and informed consultation. This kind of policies have traditionally been justified by the existence of artificial barriers of a normative and political nature by virtue of historical, geographical, and social circumstances, evidenced in that the greater or lesser degree of border integration depends to a large extent on the policy of States in terms of integration 21 22

Luzardo (2002), p. 180. Palotas (2008), p. 71.

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with their neighbors, but it will not be possible to advance true processes of binational integration if such artificial barriers are not eliminated and if the conditions are not created suitable for the integration of their border areas23: That is why a greater interest of governments in the processes of border integration in Latin America in recent years is closely related to the policies of openness and internationalization. The border regions have acquired a leading role by becoming the most suitable geographical area for implementing the new policies and for indicating the changes that will then have to be made at a national level. Borders are a geographical instrument at the disposal of states, which maintain and ensure control and functionality, but they are also an element of differentiation and, consequently, of the organization of space. In most of Latin America, border areas are disjointed from national developments and physically disintegrated in relation to the rest of the country. The question arises as to whether borders are areas for confrontation or for cooperation, complementarity, and integration.24

3.3.4

Effects of Border Closure

As a result of the border closure, there have been numerous reports, including some of crimes against humanity, such as deportation, particularly of Colombian citizens to their country of origin, illegal detentions, violations of due process, violence by members of the armed forces, separation of families, robberies and looting, destruction of private property and demolition of homes, among others. Since Decree No. 1989, a large number of deportations of Colombian nationals have occurred, where children were separated from their families; restriction on the free movement of the indigenous population and other inhabitants of the border area; violation of the right to cultural integrity, prior and informed consultation, the multiethnic and multicultural character, the right to association, due process, the right to dignity, retention, and destruction of identity documents, deprivation of liberty, sexual violence and retention of property and property and other basic rights of citizens of both countries. Historian Pablo Emilio Ramírez maintains that there are no references to such a critical situation: Not even in the times of verbal confrontations between former President Alvaro Uribe and former President Hugo Chavez did such a thing happen. With the aggravating factor that they are not only banishing the Colombians who have been in the brotherly town for years, but they are marking their houses and destroying everything, as in the darkest times of humanity (. . .) The situation of the deportees has aroused the solidarity of Colombians. Several companies in conjunction with civil organizations are doing campaigns to collect clothes, medicine, food, and blankets for those who lost everything. . . Minus hope.25

23

Briceño (2009), p. 31. Ibid. 25 Ramos (2015). 24

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Throughout this chapter, the different characteristics of the Colombian-Venezuelan border have been exposed; each of them demonstrates the porosity of it, of which three stand out: – Contraband and drug trafficking, highlighting the damage it generates for both Venezuela and Colombia.26 – Violence and violation of human rights.27 – Violence and violation of human rights.28

4 International Law in Relation to the Colombian-Venezuelan Border For this subtitle, the theoretical bases in the area of political sociology regarding the principle of the self-determination of peoples, international law, and the approach of the Rule of Law and Social Justice were considered. The principle of the self-determination of peoples is enshrined in the Founding Charter of the UN,29 established as a fundamental principle of international law, since it proposes non-interference in the internal affairs of States and respect for their territorial integrity, being consolidated by the Covenants on Civil and Political Rights of 1966, having as a principle in its application the sovereign equality to promote friendly relations between the States. These principles, referring to the equal rights of peoples and self-determination, are linked as a norm of conduct, being the basis for the development of relations of fraternity and solidarity, which constitute one of the measures called upon to cement universal peace, since one of the indispensable elements is the free and authentic expression of the will of the people. Since borders, especially land borders between neighboring countries are and will continue to be of great interest under international law,30 the legal processes that derive from them should strive to protect the nature and interests of each of the bordering States. To define the impact of the international community, this section presents the intervention of the Inter-American Human Rights System.

26

Hurtado (n.d.). Ibid. 28 Ibid. 29 United Nations (n.d.). 30 Because the territorial situation formed by the States has the obligation to respect the rules and procedures of the bordering countries with the appropriate controls to avoid imbalances between them, that is, there is no international legislative power that regulates it and imposes a global parliament that elaborates the laws and assigns them to the States. 27

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Overview of the Inter-American Human Rights System

The Inter-American Human Rights System (hereinafter, IASHR) is a set of rules or principles that aim to provide for the respect and defense of human rights, which are contained in international instruments applied to States.31 Therefore, the IASHR acts in relation to the States that adopt and ratify the international instruments on which it is based and on which it is based to carry out its purpose: the defense and protection of human rights. The IASHR is currently composed of two bodies: the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR); however, this composition had a historical evolution, which was evidenced in five stages: – Background to the system, where there is a mixture of instruments with varying legal effects, including conventions, resolutions, etc. – Formation of the inter-American protection system, characterized by the prominence of the Inter-American Commission on Human Rights and the expansion of its powers. – Conventional institutionalization of the system has evolved since the American Convention on Human Rights. – Consolidation of the protection system, thanks to the jurisprudential construction of the Inter-American Court of Human Rights and the reception of additional protocols on Economic, Social, and Cultural Rights (1998) and on the Abolition of the Death Penalty (1990). – Improvement of the protection mechanism of the American Convention, which is current, adds new reforms as time passes according to the needs that arise.32 Initially, the IASHR based its decisions on conventions, resolutions, and other international instruments, but it was not in a position of certainty reaching a single international instrument ratified by States.33 In general, the IASHR was strengthened both in the area of protection and expansion. The two bodies that make up the IASHR have different characteristics and different compositions, which will be presented below.

4.1.1

Inter-American Commission on Human Rights

The Inter-American Commission on Human Rights (hereinafter referred to as the IACHR) is provided for both in the Charter of the Organization of Mexican States and in the American Convention on Human Rights, and therefore has authority, albeit with different intensity, over any member State of the Organization; the Statute 31

Rey and Rey (2005), p. 8. Ibid. 33 Vivas and Cubides Cárdenas (2012), pp. 184–204. 32

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of the Inter-American Commission on Human Rights defines it as a principal body created to “promote the observance of human rights and to serve as an advisory body to the Organization in this matter.34 Integration and Organization It is composed of seven members, who must be persons of high moral authority and knowledge of human rights. These persons represent all the members of the Organization of the Federal States (hereinafter referred to as the OAS); they are elected by the General Assembly of the Organization in their personal capacity from a list of candidates proposed by the governments of the Member States. The members will have a term of 4 years and can only be re-elected once, although three of them of the first election will end their term in 2 years, which will be chosen by a draw.35 Competence Its main function is to promote the observance and defense of Human Rights, and as secondary functions, it has: – To stimulate awareness of human rights among the peoples of the Americas. – To make recommendations to the governments of Member States to adopt progressive measures for the due respect of human rights. – Prepare studies for the efficient performance of their functions. – Request reports on measures to be taken from the Member States. – Attend consultations and provide advice when the Member States require it. – Submit an annual report to the General Assembly of the Organizations of the American States, among others. All this is enshrined in chapter VII, section 2.36 According to these characteristics, it is observed that the IACHR has functions of an administrative nature and not so much of a judicial nature as will be seen with the Inter-American Court of Human Rights.

4.1.2

Inter-American Court of Human Rights

The Inter-American Court of Human Rights (hereinafter, IACtHR) is defined as an international judicial body, according to three aspects as indicated by Piza Escalante: – In the organic, since the Convention creates and organizes it as a court (or Court), and it is also constituted by judges. – In the formal or procedural, because in its external activity it must conform in general to typically procedural procedures (introduction of the instances, principles of contradiction, impulse of the process, pleadings and hearings, reception of

34

Rincón (2004), p. 486. Rey and Rey (2005), p. 35. 36 Ibid. 35

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evidence, judgments, execution, and mutatis mutandis, the same in the exercise of its arbitral and advisory functions). – In the material or substantive because it must settle in judgment (or as if it did the conflicts raised regarding the interpretation and application of the norms of the Convention, or that of other international human rights instruments, with similar characteristics.37 Integration and Composition The Court is composed of seven judges elected in their personal capacity from among jurists by secret ballot and by an absolute majority. Each State Party may nominate up to three candidates. Their term is 6 years, and they can only be re-elected once. Three of them from the first election will finish their term after 3 years.38 In relation to this aspect, it is found that compared to the IACtHR, the conditions in which both bodies are presented are quite similar, although there are differences such as the period of each judge and the characteristics of the vote. Competence The Inter-American Court has the power to designate its own scope in terms of jurisdiction, as well as bodies with jurisdictional functions.39 As to the first one, there are two types of jurisdictions used in the Inter-American Court: 2022 Contentious jurisdiction: Its objective is to interpret and apply the American Convention. It has two procedural stages: the written procedure, which begins with a lawsuit filed with the Court, continues with its admission, then with the reply and exceptions and ending with notification to those affected; and the oral procedure, where the necessary hearings are located since their number depends on the specific case. 2022 Advisory competence: Its purpose is to interpret the American Convention and, according to Manuel E. Ventura and Daniel Zovatto: “to contribute to the fulfillment of the international obligations of the American States with regard to the protection of human rights, as well as to the fulfillment of the functions attributed in this area by the various organs of the OAS”.40

4.2

American Convention on Human Rights

Previously, in the preliminary draft of the American Convention, a single chapter recognized the need for states to adopt the rights internally not included in previous

37

Ibid. Ibid. 39 Ibid. 40 Ibid., p. 45. 38

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articles, the economic objectives provided by the OAS Charter, and the supervisory instrument entrusted to the CIDH.41 In general, the American Convention on Human Rights (hereinafter, ACHR) imposes the following basic obligations on the State: the first is that States must refrain from committing human rights violations, the second is the duty to guarantee human rights through actions that allow them to be effective, based on the principle of non-discrimination (article 1.1 ACHR); the latter, in the duty to adopt measures of domestic law that make its legislation compatible with the ACHR (art. 2 ACHR).42 However, according to Article 44 of the ACHR and Article 23 of the IACHR’s Rules of Procedure, “any person or group of persons, or a non-governmental entity recognized in one or more OAS member states, may submit to the Commission petitions containing complaints or complaints” concerning the alleged violation of the Human Rights enshrined in the ACHR.43 Some examples of the human rights protected by the ACHR are the right to recognition of legal personality, the right to life, the right to personal integrity, the right to judicial guarantees, the right to family protection, among others. In this regard, the international protection of the individual can be understood as the concrete possibility of remedying a violation of human rights, as well as the safeguarding of the right or freedom in danger in the specific case; the entire ISHR is oriented towards this objective. Thus, the American Declaration of the Rights and Duties of Man, in its recitals, establishes that “the international protection of the rights of man must be the main guide of American law in evolution”. The ACHR, in the same vein, establishes that the Commission and the Court are the “means of protection” of the rights enunciated.44

4.3

The Actions of the Inter-American Human Rights System in Domestic Law

In this context, Latin American political institutions need, firstly, to have a constitutional clause on the primacy of the Treaty of Human Rights; and, secondly, Political Constitutions must clarify the nature of international treaties in relation to legislation (supra constitutional, constitutional, supralegal or legal), since lack of precision of the constitutional clause opens up the possibility of conflict in the application of a treaty vis-a-vis domestic law, further fueling the constitutional problem of the primacy of treaties. States still have a great deal of work to do on this issue so that the process of nationalization of international standards can be carried out without generating legal conflicts in domestic law. This also means 41

García (2003), p. 136. López (2008), Op. Cit., p. 192. 43 Arias and Galindo (n.d.), p. 141. 44 Dulitzky (1998), p. 13. 42

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overcoming the lack of state political commitment to international human rights instruments.45 Previously, the review of the relations between the domestic legal order and the international legal order may have seemed sacrilegious or useless, today it is necessary and urgent. It constitutes one of the most relevant issues to be resolved in the constitutional law of the States and in the ius gentium, all for practical purposes that translate, daily, into the submission of cases to the Court and the execution of its resolutions, in addition to attention to the recommendations of the Inter-American Commission. For the international community, it is important that States design their internal and external policies in accordance with international standards for the protection of human rights. These standards constitute, on the one hand, minimum canons of behavior and, on the other, the establishment of obligations to the States46 to investigate and punish violations of human rights and to protect and make reparation for all victims.47

5 Border Integration Zones: A Possible Solution to the Colombian-Venezuelan Crisis The adjacent border territorial areas of the member countries of the Andean Community, in which plans, programs, and projects are implemented to promote their development in a joint, shared, and coordinated manner; are known as Border Integration Zones (hereinafter, BIZ) and shall be highlighted as a possible solution. The BIZs are regulated by Decision 501, approved in June 2001 by the Andean Council of Ministers for Foreign Affairs. In this sense, the Andean countries may establish, through bilateral mechanisms, the BIZs that they agree with each other and, if they consider it appropriate, with third countries. In border integration areas, border integration regions, and existing special areas, they may bring their provisions into line with decision 501.

5.1

Criteria for their Identification and Delimitation of Borders

The criteria for the identification and delimitation of borders are as follows:

45

Añaños (2015), p. 148. García (2001), p. 663. 47 Cubides and Vivas (2016), p. 69. 46

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– Border areas where legal, administrative, and functional conditions are promoted and serve to boost the productive and commercial capacity and cultural wealth of border populations. – Governments understand that the cities with greater energy, mining, and water resources must be repowered to achieve a revitalization of sustainable development at the domestic level, as well as the axes of road articulation at the borders, since it is necessary to build in the short-term strategic measures that allow the revitalization of the economies of both countries in their shared borders. – That both governments review the economically and socially depressed areas to contribute to the repowering of the economies of those borders, thus avoiding the flight of inputs and items in general. – That they favor the articulation of the border areas with high potential of water resources, minerals among others, so that they do not form part of the environmental predation and the flight of mineral riches. – That they develop projects and activities of shared interest on binational watersheds. If they do not exist, strategic projects for the common good must be carried out. – From this perspective, a solution mechanism to understand the land border, which can no longer be seen as a merely territorial area of exercise of sovereignty, since this concept belongs to the Police State or Gendarme, typical of the eighteenth and nineteenth centuries, and on the contrary, they must be understood as areas for sustainable development, and especially, to achieve SDG 16,48 for the achievement of peace and stable and democratic institutions.

5.2

Financing

The Bank for Border Integration and Development Projects has been set up in the General Secretariat of the Andean Community to finance plans, programs, and projects in the BIZs, which will require the management of the Andean countries, on a binational basis, before subregional, regional, and multilateral financial organizations, for the establishment of the respective funds.

“Without peace, stability, human rights and effective governance based on the rule of law, sustainable development cannot be achieved. We live in an increasingly divided world. Some regions enjoy permanent levels of peace, security and prosperity, while others fall into seemingly eternal cycles of conflict and violence. In no way is this inevitable and must be addressed”. United Nations Development Programme (n.d.). 48

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Progress in the Establishment of BIZs

The Colombian-Venezuelan case is currently very sensitive due to repeated conflicts over the border closure and the ongoing violation of human rights, as well as the lack of openness from the Venezuelan government. Integration efforts must be analyzed in a way that is sustainable and that allows the flow of trade and exchange between Colombia and Venezuela more rigorously during the continuous diplomatic crisis, which has undoubtedly delayed the integration of the border, suspending the process and leading it to new scenarios, which had not been projected. According to researcher Socorro Ramírez in 2004: “Four border universities . . .(. . .)..with the support of the governors of Táchira and Norte de Santander and advisors to the CAN, carried out a study on the border municipalities to propose a possible delimitation of the BIZ”.49 It should be noted that foreign policy is currently in a problematic situation, in the sense that the negotiation has been greatly delayed, the ideologies that have conflicted, and the opposing positions, resulting in a lose-lose negotiation, affecting small and medium-sized entrepreneurs in particular. Governments must take measures to grow trade, see negotiation as a central axis and not as a conjunctural one, since the future of exchange and continuous development companies is involved.

5.4

The Borders and Problems of Dominant Strategic Secession

The Bolivarian Republic of Venezuela has legal tools for its defense in case of risks and threats. For this purpose, it has at its disposal the seven areas of National Power that are: the Political, Geographical, Economic, Social, Cultural, Environmental, Military, clearly established in the Law of Security and Defense of the Nation, enshrined in the Constitution of the Bolivarian Republic of Venezuela (Article 322) and embodied in the Plan of the Fatherland 2013–2019. It stipulates a set of strategic national objectives of a political, economic, cultural, and social nature. Given that article 4 of the Organic Law on National Security establishes that integral development consists of: (. . .) the implementation of plans, programs, projects, and continuous processes of activities and tasks that, in accordance with the general policy of the State and in accordance with the legal system in force, are carried out with the aim of satisfying the individual and collective needs of the population, in the economic, social, political, cultural, geographical, environmental and military spheres.50

49 50

Ramírez (2008), p. 18. Asamblea Nacional de la República Bolivariana de Venezuela (2002), art. 4.

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Thus, the irreversibility of national sovereignty is imposed. It can be interpreted that the integral development of the Nations, including their border areas, is aimed at satisfying the needs of their populations and safeguarding the borders, since security is a human need, being co-responsible both the State and the people’s power in each neighboring country. From the political sphere, any action, strategy, or commercial relationship has an obligation to comply with its norms the standards in force between the States, in the case of Venezuela where in the last 15 years has been experienced a series of events that attacked the sovereignty of the peoples, Venezuela does not escape from that situation, however, among its legal instruments are the Constitution of the Bolivarian Republic of Venezuela, the Organic Laws, Ordinary Laws, the Regulations, among others, that allow decisions to be made, strategies and policies to be followed, in case the national territory is violated in the border area in the States of Zulia and Táchira.

5.4.1

Geographical Scope

The States of Zulia and Táchira represent one of the largest and most important border areas with Colombia. They have land, air, maritime space with a human, animal, and vegetation populations with great potential for the sustainable development of the border because of the long standing relationships between their territories, populations and governments. There is an interrelationship of respect to all kinds, which allows planning a sustainable development seeking the balance for the good life of each of these sister territorial entities. Friedrich Ratzel, a scholar of geography at the universities of Leipzig and Munich, who made several trips to Europe in 1869 and to America (1872–1875), although he did not found geopolitics was one of the first to discuss this term, coined by Rudolf Kjelé one of its greatest exponents. Influenced by Darwin’s nineteenth-century deterministic theses, he reflected on the relationships between geographic space and population and attempted to relate universal history to natural laws. In the same way, Ratzel played an important role in evolutionary anthropology, contrasting it with the idea that populations need to spread their cultural traits beyond their original environment and that, in turn, contacts with other people allow and favor development, so he considered the State as a living organism and the necessary living space to ensure its survival, vis-ε other states through struggle or competition. According to this theory, “living space” is defined as the entire territory that a country claims to need to achieve selfsufficiency or autarchy. However, the borders of Zulia and Táchira represent for the Venezuelan State an important space for economic, social, political reasons, among others. Crimes such as rape, alienation, or secession would compromise the existence of the nation-State and may result in an international conflict so that the safeguards of the same are permanent by the public forces of each Nation.

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Economic Field

The main productive activity of the State of Zulia is the oil industry, which is why it currently has oil fields that allow it to produce approximately 1.5 million barrels of oil per day (60% of the national production). It also has an oil infrastructure for exploration and exploitation and other activities related to the petrochemical industry and natural gas processing. In addition, it has a coal reserve of 8489 million tons and participates with 100% of the exploitation of phosphate, 41% of red clay, 25% of limestone, and 10% of sand and gravel. As for the agricultural sector, the States of Zulia and Táchira have approximately 33,100,000 hectares for the development of agricultural and livestock activity. That is why the Venezuelan State, as the promoter of all actions that allow harmonious development for the benefit of the population, must promote the three sectors of production to achieve integral development as a foundation of the nation’s security.

5.4.3

Short-Term Scope

The continued destruction of Venezuela’s productive base and the collapse in private consumption has resulted in a shrank of 26.8 year-on-year of the Venezuelan economy in the first quarter of 2019, following a 20.2 percent contraction in the previous period, according to the Central Bank (Trading Economics, 2021). Regarding prices, the destruction of domestic supply and a severe shortage of international reserves caused inflation to rise above that recorded in the previous year; in the short term, there is little sign of an improvement in the situation. With regard to the exchange rate, the authorities continue with a dual exchange rate system: an official parity (Dipro), which is limited to imports from the public sector and currently accounts for less than 10% of total formal sector transactions, and a rate called Dicom (formerly called Simadi). The Dipro was devalued by 37% in March, and the Dicom stood at around BsF640: US$1 at the end of July 2016. In 2017, a new exchange mechanism was introduced, given the expected substantial depreciation. The deficit that was expected to widen in the following years occurred, and there are no signs of an economic recovery.

5.4.4

Social Field

In this area, the states of Zulia and Táchira, being border states, are depopulated, which facilitates the incursion of irregular situations such as insecurity, the extraction of fuel, food, products for personal use, migration, including drug trafficking. This situation is not conducive to sustainable development at the border. Citizen and human security must be based on a public policy with a human rights focus, including providing valuable infrastructure to border populations.

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215

Cultural Field

It is necessary to protect this area because it is so important for the biopsychosocial growth of Venezuelans and Colombians; because there is a heterogeneous intercultural population, which has its cultural values. Therefore, article 2 of the Law on the Protection and Defence of Cultural Heritage must be enforced, which states in a restrictive way that: The defense of the Cultural Heritage of the Republic is a priority obligation of the State and of the citizenry, since the preservation, defense, and safeguarding of all works, sets, and places created by man or of natural origin, which are in the territory of the Republic, and which, by reason of their cultural content, constitute fundamental elements of our national identity, are declared to be of public utility and social interest.51

5.4.6

Ecological Field

The Plan of the Fatherland Law 2013–2019, the fifth historical objective, which is “To contribute to the preservation of life on the planet and the salvation of the human species,” raises the need to build an Eco socialist productive economic model, based on a harmonious relationship between humans and nature, which guarantees the rational and optimal use and use of natural resources, respecting the processes and cycles of nature. In this sense, this objective is related to the environmental issue established in the Security of the Nation, which would guarantee the defense of the sovereignty of the Venezuelan State over natural resources, since, in reality, there are transnational companies destined to the exploitation of coal in a predatory manner, regardless of the damage it causes to the Manuelote dam that supplies water to the municipality of Maracaibo.

5.4.7

Military Ambit

It is the responsibility of the Armed Forces of the Nations to guarantee independence and sovereignty in order to ensure the integrity of the geographical area through the military defense, cooperation in the maintenance of internal order, and active participation in national development, in accordance with article 328 of the Constitution of the Bolivarian Republic of Venezuela. In border states such as Zulia and Táchira, these actions are imposed due to the commercial activities carried out at the borders, such as drug trafficking, extraction of fuel, food, and in recent years all kinds of commercial activity have been carried out such as dry goods, staple foods; that they affect diplomatic relations between the two countries and represent a detriment to the country where there is the extraction of

51

Law on the Protection and Defense of Cultural Heritage (1993).

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products transferred across the border, which is a serious problem for the States concerned and bilateral relations.

6 Colombian-Venezuelan Border Relationship in the Inter-American Human Rights System The Inter-American Human Rights System, in the “2015 Report on the Human Rights Situation”, includes a chapter on the situation in Venezuela, in which it mentions the seriousness of the issue in the border region between this country and Colombia, inserting the main actions it has taken in this situation. The IACHR continues to have jurisdiction over Venezuela because it does not depend on the American Convention on Human Rights since this country denounced it. On the contrary, the competence of the Commission is in the OAS Charter. Before beginning to analyze the situation in this area, it is necessary to clarify that Venezuela has denied the visits that the IACHR has proposed since 2002, which has caused this State not to adopt the recommendations made in relation to the human rights situation of the State. Of course, the border situation fully complies with what happens within the State, and the Venezuelan State has not allowed the IACHR to enter reviewing in loco, and conclusions are being made considering what the Venezuelans are able to communicate while being in Colombia as well as from what the Colombian citizens who were residing in Venezuela are able to tell. Many of them have personally been subject to multiple and constant violations of human rights, causing in some cases their fear and a need to flee from this country; in other cases, the Venezuelan State expelled them. This situation is aggravated by the fact that on August 19, 2015, the border crossing was closed, and on August 21, 2015, President Nicolás Maduro declared a state of emergency.52 In other words, the seriousness of this issue is part of the situation of refugees and migrants, the result of the conditions explained above: (. . .) The Commission received testimonies and information indicating that as of August 21, 2015, the migration point of Villa del Rosario, Colombia, and San Antonio del Táchira, Venezuela, went through a critical situation due to the massive arrival of people deported from Venezuela or that for fear of being deported they had decided to return to Colombia. Reports stated that from August 21 to September, 1.482 Colombians were deported from Venezuela through the departments of Norte de Santander, La Guajira, Arauca, and Vichada. (. . .) another 19.952 Colombians reportedly returned to Colombia as a result of the situation they were facing in Venezuela. Many of these people had to go back because of the difficulties they were having in accessing food and health services and acts of discrimination and persecution by authorities, mainly the GNB (Bolivarian National Guard), but also in some cases by individuals. Among deportees and returnees, the figure reached 2.434.53

52 53

Ibid. Ibid., p. 723.

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Venezuela had already begun to live a precarious situation, as there were shortages of food, medicine, and other conditions necessary for a dignified life. The importance that lies in the IACHR is evident. Many affected persons, that is, the victims came to them with the purpose of leaving testimony of this situation and even seeking protection of their rights. (. . .) In consideration of the information gathered and international human rights obligations, the IACHR once again urges the Venezuelan State to establish, in conjunction with the Colombian State, mechanisms that allow for the family reunification of all families who were separated in this context, and the restitution of property and property of the affected persons, or, failing that, compensation.54

It is emphasized that the Venezuelan State is once again urged since, as mentioned above, the IACHR has had more than one attempt to visit them and to see for themselves the human rights situation. The Colombian State must also cooperate and aim to work together to establish an agreement that minimizes this situation of constant violation of human rights. (. . .) The Commission also reiterates that it urges the Venezuelan State to immediately stop any collective, arbitrary, and/or summary expulsion, to ensure that any migrant in an irregular situation has access to a migration procedure that complies with the guarantees of due process and that the principle of family unity is protected. The Commission also considers that Venezuela must guarantee the application of international standards on the use of force in immigration control operations, the exceptional nature of immigration detention, the prohibition of the detention of migrant children and adolescents, detention in conditions in accordance with human dignity, and the prohibition of mass expulsions. Once again, the Commission urges Venezuela to ensure that refugees and asylum seekers of Colombian origin are not deported or returned to Colombia.55

The most outstanding condition of this situation is the expulsion of people since they are left without a place to live, without any kind of economic support, and without family, which causes their rights to be violated. Both nations must not forget their constitutional duty of protection for their people and for humankind to an extent.56

7 Conclusions The situation of the Colombian-Venezuelan relationship shows a porous border, in which there are problems of a social and humanitarian nature (violation of human rights and violence by illegal groups), political (decisions and problematic relations between both governments), and economic (drug trafficking and smuggling), where the partiality of the decisions taken by both countries to minimize this situation is evident given that each country must preserve their own interest.

54

Ibid. Ibid. 56 Navas-Camargo et al. (2020). 55

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The solution proposed in this chapter is the recovery of the model of integration in the border area, through the commitment of the participation of social actors, entrepreneurs, workers, private foundations, and civil associations; the stimulation of local, national, binational, and foreign private investment; the promotion of initiatives aimed at generating strategic business alliances and the creation of Andean Multinational Enterprises (EMAs); the establishment or improvement, as the case may be, of transit regimes for people, vehicles and goods in order to boost border integration processes and contribute to generating border markets. They pursue development at every level considering it a participatory process of ecological zoning as well as an economic, social, and cultural partnership; the promotion of coordinated integral management of shared ecosystems; the development of joint tourism programs and the promotion of economic activities linked to the tourist circuits to be promoted; the undertaking of joint programs to assess and strengthen the common cultural identity; the strengthening of national and bilateral bodies on border issues; the promotion of meetings and exchanges of initiatives between local authorities, regional development bodies and legislative representatives of the member countries; the implementation of shared or complementary projects for basic infrastructure, roads, telecommunications, and energy, as well as product development; and the promotion of the configuration of an urban-regional structure. The Inter-American Human Rights System has acted forcefully in the situation in the Colombian-Venezuelan border area since it has encouraged the States of Colombia and Venezuela to allow a visit to this area to verify the human rights situation and thus be able to carry out the corresponding recommendations. However, the Venezuelan State has refused this request and with the acceptance of Colombia is not enough to know the totality of the situation that arises in this area. Nevertheless, serious complaints received after a visit made to the border on the Colombian side included: violations of the rights to equality before the law and the pursue of arbitrary arrests; to liberty and to personal security and integrity; to the protection of personal reputation and honor as well as to private life and family life; to the protection of children and their mothers; to movement and residence; to the preservation of well-being and health; to work; to the rights of property and home; to education; to the prohibition of collective expulsions as well as to the principle of non-refoulment and finally, to seek and to receive asylum. A second visit was attempted in February of 2020, again receiving only a positive response from Colombia. Nearly 200 testimonies were collected on that occasion, and the conclusions indicated that serious human rights violations were continuing to deteriorate the life of the people making a call to the state of Venezuela to urgently comply with numerous recommendations. We highlight those related to the situation of migrants, asylum seekers, refugees, beneficiaries of complementary protection, internally displaced people, and victims of trafficking. Consequently, the IACHR has carried out the relevant recommendations with the information it possesses, which is medium and not complete, and, even so, the Venezuelan State has not responded to them, generating that every day the systematic violation of the human rights of these people increases.

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Even though the Interamerican System of Human Rights has carried out all the possibilities available for them to try to reduce this situation, the cooperation of the States in question is not evident, and without this collaboration, the Interamerican System of Human Rights is prevented from continuing with its purpose.

References Alegría, A., and J. Arroyo. 2010. El conflicto colombo-venezolano y la construcción de escenarios desde la teoría de juegos. Convergencia, Revista de Ciencias Sociales 52: 97–124. Amado, N., and J. Molina. 2015. Contrabando en la frontera con Venezuela, otro dolor de cabeza de la crisis. Colprensa. Retrieved from: http://www.elpais.com.co/colombia/contrabando-en-lafrontera-con-venezuela-el-otro-dolor-de-cabeza-de-la-crisis.html. Añaños, K. 2015. Régimen constitucional de los tratados de Derechos Humanos en el derecho comparado latinoamericano. Revista Prolegómenos-Derechos y Valores 35: 135–151. Arias, F., and J. Galindo. n.d. El Sistema Interamericano de Derechos Humanos. Universidad de los Andes. Asamblea Nacional de la República Bolivariana de Venezuela. 2002. Ley Orgánica de Seguridad de la Nación. Retrieved from: https://www.acnur.org/fileadmin/Documentos/BDL/2008/6667.pdf Briceño, C. 2009. Venezuela y Colombia: dimensiones de una crisis diplomática, sus repercusiones en las fronteras y la integración. Aldea Mundo 27: 27–35. Bustamante, A. 2004. Participación de los actores políticos y sociales en la frontera Táchira-Norte de Santander y en la integración andina. Espacio Abierto Cuaderno Venezolano de Sociología 4: 567–585. Cadena, J. 2007. Geografía política: tensión en las fronteras de Colombia como efecto de su conflicto interno. Revista de Relaciones Internacionales, Estrategia y Seguridad 2: 93–126. Cardozo, G. 2002. Venezuela: regiones fronterizas y globalización. Revista de Ciencias Sociales (RCS) 3: 449–463. Castells, M. 1998. La era de la información: Economía, sociedad y cultura. Madrid: Editorial Alianza. Cubides, J., and T. Vivas 2016. La Justicia Transicional y el rol de la Corte Interamericana de Derechos Humanos. In: Fundamentación y aplicabilidad de la justicia transicional en Colombia, ed. J. Becerra, Público 10, Universidad Católica de Colombia. Dulitzky, A. 1998. Una mirada al Sistema Interamericano de Derechos Humanos. América Latina Hoy 20: 9–18. El Universal. 2015a. Contrabando, un mal que desangra la frontera colombo-venezolana. El Universal. Retrieved from: http://www.eluniversal.com.co/economica/contrabando-un-malque-desangra-la-frontera-colombo-venezolana-207280. ———. 2015b. Datanálisis: 65% de las personas que hacen cola para comprar son revendedores. Runrunes. Retrieved from: http://runrun.es/nacional/inbox/172181/datanalisis-65-de-las-per sonas-que-hacen-cola-para-comprar-son-revendedores.html García, S. 2001. El futuro del Sistema Interamericano de protección de los Derechos Humanos. Boletín Mexicano de Derecho Comparado 101: 653–683. ———. 2003. Protección jurisdiccional internacional de los derechos económicos, sociales y culturales. Cuestiones Constitucionales 9: 127–157. González, R., and H. Galeano. 2014. Las relaciones Colombia-Venezuela: límites, desgolfización y securitización, tres variables en la política exterior binacional. Memorias. Revista Digital de Historia y Arqueología desde el Caribe 24: 76–97. Gutiérrez, A. 2013. Venezuela y Colombia: estrategias de desarrollo e integración económica. Aldea Mundo 36: 37–49.

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Hurtado, A. n.d. La Frontera Colombo-Venezolana. Observatorio de Política y Relaciones Internacionales Colombianas (OPRIC) of the Universidad Nacional de Colombia: Retrieved from: http://opric-unal.org/index.php/produccion-academica/analisis-de-coyuntura/1 68-la-frontera-colombo-venezolana.html. Jiménez, C. 2008. La frontera colombo-venezolana: una sola región en una encrucijada entre dos estados. Reflexión Política 20: 258–272. Kearneay, M. 2015. La doble misión de las fronteras como clasificadoras y como filtros de valor. In Migración, fronteras e identidades éticas trasnacionales, L. Velasco (coord.). México: Editorial Miguel Ángel Porrúa. Komblith, M. 2004. Percepciones venezolanas sobre la crisis de Colombia. Colombia Internacional 60: 124–153. López, J. 2008. Los derechos laborales en el sistema interamericano de protección de Derechos Humanos: la protección de los derechos económicos, sociales y culturales. International Law: Revista Colombiana de Derecho Internacional 12: 183–216. Luzardo, A. 2002. Fronteras, ambiente y desarrollo sustentable. Revista Venezolana de Análisis de Coyuntura 1: 175–187. Navas-Camargo, F., J. Cubides-Cárdenas, and N. Pérez. 2020. Constitucionalismo utópico y realidades vergonzosas. Refugio en el Mediterráneo. Desafíos migratorios: realidades desde diversas orillas. Pabón, J., L. Arenas, and M. Sepúlveda. 2015. Business Across Borders Between Colombia and Venezuela: From Trade to Social Conflicto. Apuntes del CENES 60: 153–180. Palotas, L. 2008. Tres miradas al conflicto colombo-venezolano. Reflexión Política 19: 60–72. Ramírez, S. 2008. Las Zonas de Integración Fronteriza de la Comunidad Andina. Comparación de sus alcances. Estudios Políticos 32: 135–196. Ramos, F. 2015. Tensión en la frontera, El impacto económico y social del cierre de la frontera colombo-venezolana. Cable News Network - CNN. Retrieved from: http://cnnespanol.cnn. com/2015/08/27/el-impacto-economico-y-social-del-cierre-de-la-frontera-colombovenezolana/ Rey, E., and A. Rey. 2005. Medidas provisionales y medidas cautelares en el Sistema Interamericano de Derechos Humanos. Editorial Temis. Rincón, L. 2004. La protección de los Derechos Humanos en las Américas. Revista de Ciencias Sociales (Ve) 3: 476–495. Sumarium. 2016. Bachaqueo, el negocio redondo que pone PV justo a la necesidad. Sumarium. Retrieved from: http://sumarium.com/bachaqueo-el-negocio-redondo-que-pone-pv-justo-a-lanecesidad/. Unión Europea. n.d.. Agencia Europea de la Guardia de Fronteras y Costas (Frontex). Unión Europea. Retrieved from: https://europa.eu/european-union/about-eu/agencies/frontex_es Vivas, T., and J. Cubides. 2012. Diálogo judicial trasnacional en la implementación de las sentencias de la Corte Interamerican. Entramado 8 (2): 184–204.

Flor María Ávila Hernández A lawyer with a Master’s degree in Political Science and Public Law from the Universidad de Zulia. Ph.D. in Philosophy of Law and Human Rights from Università Degli Studi di Napoli Federico II. Currently a teacher in the Faculty of Law of Universidad Católica de Colombia. Researcher of the group Phronesis at the Faculty of Law of Universidad Católica de Colombia. Email: [email protected] Jaime Cubides Cárdenas Lawyer and specialist in Public Law at Universidad Autónoma de Colombia, specialist and a Master’s degree in Teaching and research with an emphasis on the legal sciences of Universidad Sergio Arboleda and holds a Master’s Degree in Law from the same University. Ph.D. student in Law at the Universidad Católica de Colombia. Researcher, Associate teacher, and leader of the Research Group Person, Institutions and Demands for Justice of Universidad Católica de Colombia. Email: [email protected]

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Fernanda Navas-Camargo Lawyer and International Business Administrator. Ph.D. in Education. Researcher of the research group Person, Institutions, and Demands of Justice linked to the Socio-legal Research Center, attached and financed by the Faculty of Law of the Catholic University of Colombia (Bogotá). Email: [email protected] Paula Andrea Barreto Cifuentes Lawyer at Universidad Católica de Colombia. Research Assistant in the research group Person, Institutions and Demands for Justice and integral part of the seedbed of research Observatory of Constitutional Justice and Human Rights linked to the SocioLegal Research Center (CISJUC) of the Faculty of Law of the Universidad Católica de Colombia. Email: [email protected]

The Injury of Sovereignty in Ecuador in the Management of the Debt Crisis: The Role of IMF Dimitri Endrizzi

Abstract The present chapter evidences a financial crisis and its approach in Ecuador, showing the concept and theoretical evolution of “frontier” and its importance, before looking at the concept of sovereignty and how this concept is related to the financial crisis in Ecuador, and finally it analyses the debt crisis in Ecuador, specifically its management by the IMF (International Monetary Fund), all of these with a historical evolution and relevant moments in all this situation.

1 Introduction Frontier is a general concept that indicates an indefinite area near the border. The border, in turn, is an imaginary line that demarcates the boundary between one state and another. The different countries determine, through voluntary agreements, where the own national territory terminates. The concept of border is indissolubly linked to the notion of sovereignty. In a context of legality, a state may exercise its power just within the limits of its borders. Beyond the borders, the legitimate task will be of another state. In the classic visions, sovereignty is considered an absolute power that the state exercises through its institutions. One of the most important fields in which sovereign power reveals itself is domestic economic affairs. In other words, the economic policy of a country. At the beginning of the decade of the 1980s, Ecuador, like many other Latin American countries, was affected by a debt crisis. A fiscal crisis happened due to the inability of different countries to honor the commitments in terms of external debt, and that threw the continent in the so-called lost decade. This officially started in Professor Dimitri passed away during the final editing of this book. This chapter is the result of the research project entitled Methodology and Paradigms of Legal Research developed with the group Phronesis, linked to the Socio-Legal Research Center (CISJUC) at the Faculty of Law of Universidad Católica de Colombia, in Bogotá. D. Endrizzi (*) Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 D. Endrizzi et al. (eds.), Frontiers – Law, Theory and Cases, https://doi.org/10.1007/978-3-031-13607-8_10

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1982 when Mexico stated that it would not be able to make interest payments. Within a few months, it was affecting most of the countries of the continent. The debt crisis of the 1980s was a systemic crisis that involved Latin American society. A fiscal crisis that impacted economic and social development, worsening the living conditions of millions of inhabitants. And it was a moral crisis, the responsibility for which was identified in the United States of America due to its aggressive politic toward the Latin American continent. The debt crisis was the occasion for the strong powers of the world economy to carry out supposed salvation of the affected countries through a series of measures that can be summed up substantially in a structural adjustment of economies and in a refinancing of existing debts—the second strategy linked to the fulfillment of the first. According to many critics, the operation was intended solely to generate a surplus that would allow the compliance of obligations to international private banking. In fact, the results of the structural adjustments were controversial. As a trend, it managed to balance the accounts and reached the goals in terms of inflation control. However, soaring costs were paid in terms of economic growth and the living conditions of the population. The role of multilateral credit agencies, particularly the International Monetary Fund (IMF) has been heavily questioned. In a joint strategy with international private banking, the fund constantly interfered in the economic policy of different countries, with a consequent injury of the sovereign power. Ecuador was no exception. Between 2007 and 2008, Ecuador carried out an integral audit of public credit, which ended with a default of a significant part of the external debt in December 2008. Because of the comprehensive documental reconstruction work carried out by the Commission for Public Credit Audit (CAIC), new evidence emerged, making clear the role of the multilateral credit agencies, and in particular the IMF, in the infinite management of the debt crisis. Interference in the internal affairs of Ecuador by the International Monetary Fund was constant over two decades and affected different aspects of the public and private life of the Ecuadorians. Below, after a theoretical introduction observing the evolution of the concept of sovereignty, we will analyze the events considered as the beginning of a policy of interference in the economic affairs of the Latin American country of Ecuador, within the framework of wider political interference that will shape the institutional structure of the country. The most relevant aspect is the participation of the International Monetary Fund in the imposition of a structural adjustment plan considered as a necessary condition to access to a refinancing of the external debt between 1982 and 1983. Behaviors that, with the declared objective of managing the crisis, represented an important and unacceptable injury to the sovereign power of the country.

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2 On the Concept of Sovereignty Sovereignty1 is a term that has its roots in Latin and means ‘over all’ (super and omnia). An etymology that will be reflected in the modern definitions that contemplate sovereignty as a form of a higher power. Sovereignty is a political and legal concept that shows us the ultimate power in a political society. It is a concept that differentiates the above-mentioned political society from other human groups that do not have the capability to exercise power in an exclusive and supreme form. In fact, sovereignty shows itself in the manner of a legal rationalization of political power, transforming the force into legitimate power—the power de facto in the hands of Law. Although sovereignty manifests itself in diverse ways according to the forms of organization of power, throughout the history of humanity, each political organization has had supreme authority. The modern concept of sovereignty was born in conjunction with the concept of state, as the unique and exclusive subject of the politic, at the end of the sixteenth century and relates substantially with the fullness of state power.2 It’s through the concept of sovereignty that the modern state-imposed itself on the ancient medieval forms of power, based, firstly, in the social class and status and, secondly, in the power institutions of the time such as the empire and the papacy. A need for unity and concentration of power functional to the exclusive exercise of force in a given territory has been promoting the process of transformation. Without sovereignty, it would not have been possible to exert force in a legitimate way. The birth and development of the concept of sovereignty in modern times are inseparably connected with its historical context. Peace and war, defined by Bobbio, Matteucci, and Pasquino as the “essence of politics”,3 are businesses that are exclusive to the sovereign. In modern territorial states, perhaps the most important duty of the sovereign is to ensure peace between the subjects and reunite and organize them for defense in case of attack from another country. It is the sovereign who exerts power over the armed forces. A first conceptual distinction appears. It is possible to talk about internal sovereignty to refer to the power of the sovereign to maintain peace between subjects. Historically, it was a process that, with different degrees of effectiveness, annulled the power of the intermediate institutions, removing the feudal powers, privileges of status, private wars, and internal conflicts within the national territory. What Bobbio, Matteucci, and Pasquino defined as a “neutralization and depoliticization of society”4 to maintain an inner peace necessary to deal with any possible conflict in the international arena.

1 To describe the concept of sovereignty, we will refer to the definition of Bobbio et al. (2004). Otherwise, we will cite the source. 2 Skinner (2003), pp. 37–46. 3 Bobbio et al. (2004), p. 910. 4 Ibid.

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We are now entering the field of external sovereignty. It’s the exclusive choice of the sovereign to decide on war and peace with other states. We are moving in an international context that does not recognize any supreme judges such as the Pope or Emperor. A system that, in some way, is regulating itself. If the internal sovereignty has an absolute character, if we look to its external nature, we are facing a situation of equality in relation to the sovereignty of other political realities. The classification between internal and external sovereignty could be defined, in modern terms, as a categorization more functionalist than ontological. The concept of sovereignty has been analyzed from different perspectives, which are sometimes incompatible with each other. The first conceptualization is from the French intellectual Jean Bodin (1529–1596). In his classic work The Six Books of the Republic, the author defines sovereignty as “the absolute and perpetual power of a Republic”.5 The essence of sovereignty is the power to make and repeal laws. It is the main force of cohesion of society and a higher power, which includes all others.6 Different from Bodin is the conception of Hobbes (1588–1679). The British philosopher contemplates sovereignty from the perspective of a coercive power exercised by the sovereign with the purpose of imposing certain behaviors. If, according to Bodin, the sovereign has the monopoly of the law through legislative power, according to Hobbes, has the monopoly of the use of force. As said by Bobbio, Matteucci, and Pasquino, we are talking about two antithetical visions that, in their extreme conception, could lead, respectively, to a Law without power and to power without law, losing sight of the ultimate objective of the main theorists of sovereignty: the balance between strength and law. From the different perspectives of Bodin and Hobbes were born the two opposing camps that we see today, respectively, as the highest authority of law, which can only issue fair orders and theories that contemplate it as the highest de facto power. For the second approach, there is a problem of legitimacy, which Hobbes resolved through the concept of the social contract. The point of view of Rousseau (1712–1778) takes the concept of Bodin to the extreme. Sovereignty is fully identified with the legislative power due to the concept of ‘general will’, which tells us that the king may not issue ad personam decrees, but only abstract and general laws. In addition, in this case, the concept loses everything related to implementation: in other words, the fundamental functions about the decision on war and peace, issuing currency, granting grace, etc. Sovereignty understood in this sense could lead the sovereign to impotence. Bodin presents some characteristics of sovereignty that are normally accepted as true. He defined it as “absolute”, “perpetual”, “indivisible”, “inalienable,” and “imprescriptible”.7 Sovereignty is an original power that cannot depend on others. Absolute because no law can limit it; perpetual because it’s intrinsic to political organization and not to the person who exercises it; inalienable and imprescriptible

5

Ibid., p. 910. Bobbio et al. (2004), pp. 146–151. 7 Ibid., p. 911. 6

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because, being the political power a public function, it’s not possible to dispose of it. The feature of indivisibility of sovereignty proposed by Bodin works if applied to an absolute monarch but is problematic when applied to collegiate bodies, such as assemblies, whose will is a fictional will because it derives from multiple wills. This vision inevitably clashes with the theory of division of powers, the basis of the very modern conception of democracy this comes from Montesquieu. Although the concept of sovereignty was developed in its modern characterizations in the sixteenth century in correspondence with the emergence of the territorial state, its birth is previous. In the Middle Ages, the term sovereign indicated a position of preeminence in a hierarchical system.8 With the king at the head but also a count in his territory could be considered as a sovereign. The power relationship between the king and his subjects was mediated by a vertical order that established a series of rights and duties that should be respected. The sovereign power of each mediator entity refers to a cosmic order which, in any way, could be questioned. Paradoxically, the acceptance of a status that corresponded to the class membership was also an instrument of protection of the related rights. The arrival of the modern territorial state broke this chain of mediations and will bring closer again the figure of the ruler with the subject. The medieval tradition implied that the king would administer justice primarily based on the customary laws of the country. The medieval sovereign responded to god and, in some way, to the rule of law. The modern theories of sovereignty, such as Bodin’s approach, reversed this order. The king is sovereign because he makes the laws. The customary law is not a limitation. It can be abrogated by the sovereign, the highest source of law, while a custom, even though it is very rooted, cannot repeal a law. The laws are transformed into mere king’s orders and lose their character of social consensus. The law is given and inspired substantially in practice justice and in common sense. With the modern territorial state, the law is created. The legitimization of the iustum becomes a legitimation of the ius. The creation of law is mainly technical rationality. Bobbio, Matteucci, and Pasquino talk about sovereignty considered as a “will in action”.9 The passage from the Middle Ages to modernity has involved the disappearance of a quasi-infinite series of mediations between sovereign and subjects. However, the change of paradigm did not mean the disappearance of the need for such mediations, which limited the power of the sovereign and ultimately guaranteed the guardianship of the rights granted by belonging to a certain social class. In medieval law, there was intrinsic protection of the rights of the individual, and this tradition will have been incorporated in later times by the natural law doctrines who claimed that there was a natural pre-state law. It is the veritas and not the auctoritas that can legitimize a law. A process that will culminate with the arrival of constitutions proclaiming some inviolable rights of citizens.

8 9

Costa (2004), p. 10. Bobbio et al. (2004), p. 912.

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Another classification that comes from the classic conceptualization distinguishes between realistic and abstract theories. The realistic theories of sovereignty, which include those of Bodin and Hobbes, clearly identify the physical, institutional place where power was exercised: the king or an assembly. It’s a formalization of the sovereignty that will be lost on the way to modernity principally due to the rising of abstract theories. In the abstract theory, sovereignty is not attributed to institutions that present a physicality but to abstract entities such as the state or the people. Are impersonal theories of sovereignty. The trend was similar also in the evolution of the realistic theories, which stopped to identify a physical institution as a center for the implementation of the sovereign power, attributing this function to a social class— for example, the economically dominant class in Marx, or the political class in Mosca. The definition of sovereign power in abstract terms inaugurates the dissociation between Politics and Law and characterizes the transformation toward the modern territorial state. If the English realist tradition continued emphasizing the physical component of the power, identifying it in Parliament, the continental European tradition emphasized the abstract component, generating a series of concerns that, today, do not yet have a definitive answer. The reconciliation between sovereign and people in an abstract and supposedly unitary entity as the state. Since Kant, the tendency has been to consider not just sovereign and people, but territory and sovereignty too, in the manner of constituent bodies of the abstract entity that is the state. The state assigns specific functions to various organs, and therefore, the legislative, executive, or judicial branches are not the owners of those powers but they exercise them as ‘delegated’. The state remains the owner of the sovereign power. However, it must look to specific institutions to exercise sovereign power. In this way, the sovereign power loses its sense of being and transforms into a series of constituted powers that refers to a legal system. The abstract theories of sovereignty talk us about an overlap between law and sovereignty,10 which leaves more theoretical problems than it solves. The depersonalization of power hides which, in fact, are exercising sovereignty in a political society. For this reason, in the 19th and 20th centuries, the realist theories returned in the attempt to find a satisfactory answer to a question that can be considered central if we talk about sovereignty: who exercises it. In this direction moves the realist theory of Carl Schmitt. According to the German political scientist, the sovereign decides on the state of exception. Schmitt understands the state of emergency as a deviation from normality, from the rule, such as a suspension of the legal system to comply with an upper objective: the maintenance of political cohesion. The vision of Schmitt is innovative. It is not that of a sovereign who has a monopoly of the law and punishment, but the owner of the monopoly on the final decision in a state of emergency. The relationship with the legal system is double. The sovereign can be considered out of legal order. He can

10

It is the point of view of Hans Kelsen.

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suspend or modify it, exercising its sovereign power. Or he may be considered within the legal system if it provides the possibility to be repealed. The development of the modern state has shown a trend toward the control, or the total elimination, of the possibility of exercising sovereign power beyond the constraints imposed by the legal system. This process shows us that it is not functional to speak about sovereignty as such in the past. We are always in the presence of limited and constituted powers, while sovereignty must be considered as a constituent power. Sovereignty would be a sleeping power, which becomes evident just in times of breakdown of social cohesion when a division in the legal and political order is visible. The exercise of sovereign power marks a new beginning in the political-legal status of any country. Sovereignty is functional to the creation of new order. Bobbio, Matteucci, y Pasquino talk about constituent powers of two classes: the sovereign dictatorship and the sovereignty of the people. With a sovereign dictatorship, a person or a group of people intends to make changes to the legal system in the name of supposed rationality and acting on behalf of the people but without having obtained an explicit mandate. The legitimation of similar behavior, always supported by a capacity to impose political will, is not based on consensus but on the alleged rationality of behavior or in the strength of an ideology. The sovereignty of the people concretes itself in the constituent power of the people. This actor, through a constitution, establishes a legal system that contemplates both the organs that exercise de facto sovereign power (the constituted powers) and the rules of the game that will allow modifications to the same. In the modern State, it is a process unfolding through representative assemblies that operate within an established reality that limits its power. Sovereign dictatorship is a producer of the legal system; popular sovereignty is a syncretism between power and Law, between action and consensus, between be and should be. Sovereignty as a concept has faced a time of crisis due to the outpost of constitutionalism and the development of pluralistic theories. The main function of constitutionalism has historically been the fight against the concentration of power in a single entity, dividing it between different organs. The result, as we affirmed in the previous paragraphs, has been the formation of constituted powers and, therefore, powers which are limited, exercised in a legitimate way due to the investiture by a constituent power held by the people and exercised by them indirectly by representativeness. Pluralist theories have shown us how there is no real unity of the State. In this theoretical area, descriptive theories focused on showing the real formation process of political will while the prescriptive ones proclaimed the right to the maximization of freedom in a democratic society. Both types of theories base their conceptual structure on the assertion that society is constituted by individuals that make up different groups and associations in competition with each other, each with different degrees of capability to impose their own decisions through the conditioning of political power. Such plurality precludes a single all-embracing authority. Every political decision is the result of a series of mediations.

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The pluralist theories became relevant with the consolidation of the industrial society, in which it is evident that grew the number of roles, groups, associations, etc. However, they have a theoretical root in authors such as Montesquieu and Tocqueville. The first defended the role of intermediate organs as mediator entities in the political relations between States and citizens. The second exalted the role of the free associations, which would allow the citizen to defend against an omnipotent sovereign. In the twentieth century, the concept of sovereignty has entered a crisis. On a theoretical level, due to the above-mentioned constitutionalists and pluralistic theories. On a practical level, due to the crisis of the modern state, unable to develop the role of a single political actor, internally and in the international arena. Especially in this second area, the changes have been substantial. Firstly, the states have voluntarily ceded part of their sovereignty to supranational institutions in different fields. Examples are the international courts that have the power to intervene in the internal affairs, military alliances, the European Central Bank that has taken away to the member states of the European Union the power to mint money, considered as a fundamental characteristic of sovereignty by the classical theories. Secondly, there are spaces born spontaneously that cannot be controlled by the sovereign state. A significant example is the world market. In this area, there are subjects of private Law that, although they do not have a territory and a specific population on which to exercise sovereign powers, move into the international arena as actors subjected to very few external powers, exercising in this way a de facto sovereignty. A transnational company moves in many circumstances in a vacuum of power. These are not the only phenomena. The complex network that today connects us has changed, and perhaps irreversibly, the mass media. Public opinion is more independently formed and, in most cases, cannot be controlled by the state. Because of the phenomena, a public opinion, which can be considered as global, could successfully exert pressure on countries that, in other times, would have taken the sovereign decisions without considering other opinions. In fact, the field of international relations is the one that has most influenced the corrosion of the concept of sovereignty as we know it. The difference between the real capacities of exercising power in a poorly regulated world has made that the small countries have lost the de facto capability to decide on war and peace, a constituent element of the sovereignty in their classic conceptions. Today, we must consider the decline in the fullness of State power. With the consolidation of the democratic state, the people, mainly through political parties, took a leading role in the political arena, reaffirming the social conflict. A conflict that has taken shape mainly as competition in the field of the rules, but not only. Physical borders have lost importance, leaving the step to ideological borders. With the consolidation of the industrial society, no traditional political subjects were born, such as trade unions or companies with functions that historically were part of the field of public authorities. And decentralization has debilitated the sovereign power of the State by giving local authorities the capacity of choice on public spending.

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Because of the changes presented above, the question naturally arises. Does a sovereign power still exist? Is it acceptable today to speak of sovereign power? According to Bobbio, Matteucci and Pasquino, yes. The power does not go away. Only changes its organizational form. What is disappearing is a form of organization that has been built around sovereignty as a mainly political-legal concept. The historical value of this approach is important, and is reflected the search for an indispensable balance between supreme and legal power, power, and Law.

3 The Management of the Debt Crisis by the IMF: A Reiterated Injury of the Ecuadorian Sovereignty Interference in the internal affairs of Ecuador, by the International Monetary Fund, and the consequent injury of his sovereign power has been repeated throughout the decades of the 1980s and 1990s. The whole process of management of the country’s external debt, from the crisis of 1982 to the last exchange of Brady Bonds to Global Bonds, was accompanied by the Fund. 11 It’s a significant case of a country that didn’t play at the time a relevant role in the international scene and that hadn’t blunted tools to defend its interests. The Fund did not interfere through isolated actions but through a series of prescriptive interventions that were carried out substantially to favor foreign economic agents in pursuit of profit. We believe that the Ecuadorian case is representative of a reality that took shape throughout the Latin American continent and that was imposed until the accession to power of political parties and movements commonly known as the Latin America’s New Left, which implemented alternative models of development, already proposed by Academia. Constant interference in the internal affairs with a consequent violation of the sovereignty that, in different circumstances, has affected the normal functioning of democracy in the country. Talking about external debt in Ecuador means considering the audit process that took place in the country between 2007 and 2008, and that led, at the end of 2008, to the default12 of an important part of the commercial debt,13 declared illegal and illegitimate. A sui generis case due to the succession of the facts. The default has been a fairly common practice, especially in Latin America, a region of the world that suffered all the problems associated with high levels of debt. However, the Ecuadorian case has been novel due to the motivations that led President Rafael Correa to declare the default. The causes had always been economic. The countries declared the suspension of payments for a real inability to continue. In the case of

11

Toussaint (2014). Default means suspension of payments. Can be payments of capital or interests. 13 Commercial debt is defined as debt toward foreign private commercial banks. 12

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Ecuador, the reasons were substantially political-legal.14 The Government conducted an audit of public credit, and based on the results, Rafael Correa took the decision. From the conclusions of the audit emerged some uncomfortable evidence of a continuing injury of the sovereign power of the country. Below, we will briefly summarize the facts. On 9 July 2007, through Executive Decree No. 472, President Rafael Correa created the Commission for the Integral Audit of Public Credit (CAIC).15 The commission would conduct a comprehensive audit of the public credit of the country16 that would allow “to identify legitimate and illegitimate debts, to establish the responsibility of the creditors and to set a precedent for a fair and responsible management of any new indebtedness”.17 The CAIC operated for a period of about a year, auditing the public credit from 1976 to 2006. During its term, it created different subcommittees that audited, respectively: the commercial debt owed to foreign private banking; multilateral debt with multilateral credit agencies; the bilateral debt with state creditors and the Paris Club; the loans granted to the Committee of Development of the Guayas River (CEDEGE);18 the domestic debt.19 On October 23, 2008, the first results arrived, and the CAIC delivered a preliminary report. On November 14, the Ministry of Finance announced that the Government would suspend the payment of the interests of the 2012 Global Bonds for 30 days, while the President officially received the report. 20 The official results were handed over to the President on November 20 of the same year, and as suspected, strong indications of illegality and illegitimacy in the country’s public debt were detected. The Ministry, in the same press release, expressed the willingness of the Government to consult with international experts to make a responsible decision, to respect the principles of justice and the legality and sovereignty of the country. On December 12, 2008, President Correa officially declared the default. The formation process of the Ecuadorian debt is usually divided into three different phases.21 Until the 1950s, the national debt, except for the debt owed at the end of the nineteenth century for the construction of the railway of Guayaquil, flowed from debts that arose during the process of independence from the Spanish 14

Although Rafael Correa has repeatedly been accused by its detractors to be a realistic political that used political-legal motivations as a justification for a mere economic benefit. 15 CAIC for its definition in Spanish. 16 The audit was not complete, mainly because of the impossibility (interpreted as reluctance) of some public institutions to deliver to the CAIC all the document requested. 17 Comisión para la Auditoría Integral del Crédito Público (2008), p. 14. 18 CEDEGE for its definition in Spanish. 19 The inclusion of domestic debt in the audit was justified due to the suspicion that the country get into debt in the domestic market mainly to cover payments in the international market. 20 Ministerio de Finanzas (2008). 21 The historical information concerning the evolution of the debt in Ecuador, which we will present below, refers to the reconstruction made by the CAIC and contained in the above-cited Executive Summary: Comisión para la Auditoría Integral del Crédito Público, Op. Cit. Otherwise, we will cite the source.

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Crown. In the 1950s, Ecuador incurred some smaller debts with the International Monetary Fund. In the decade of the 1970s, the current debt began to rise. As stated, the current Ecuadorian debt arose in the 1970s, at a time when the country had a high availability of resources. Ecuador had recently become an exporter of crude oil.22 In 1973, the first oil crisis started,23 and the price per barrel suddenly increased. 24 The dollar surplus in the Arab oil producer countries came into the American banking system. This situation coincided with a context of broad financial availability generated by an economic imbalance in the United States due to the need to finance the Vietnam War, reinforced when in August 1971, the gold standard was abandoned. The flow of petrodollars to the banks of the United States from the Arab banks worsened the scenario.25 At that time, high oil revenues made Ecuador a reliable client in the field of international banking, and the Governments of the South American country took advantage of the situation, obtaining anticipated resources linked to the oil income at favorable conditions.26 In Ecuador, from 1972 to 1979, there was a suspension of democracy.27 The military dictatorship adopted, during the first half of the decade, a moderate debt policy, which changed in the second half. Ecuador entered a vicious cycle of uncontrolled indebtedness, a phenomenon that was amplified because of constitutional reform that, in 1978, exonerated the Parliament of its control functions on the indebtedness of the country. The external debt grew exponentially. In 1979, Ecuador returned to democracy. However, the international economic context affected the Latin American continent for different reasons. World trade contracted, and the prices of raw materials declined in international markets. 28 This situation, which resized the main source of income in Latin America,29 coincided with a unilateral decision taken by the Federal Reserve of the United States: a sudden rise in the rate of interest that, in fact, affected all the loans granted by commercial banks in that country. The debt service of many developing countries grew, generating, at the beginning of the decade of the 1980s, a real inability to pay. This is the phenomenon known as the debt crisis.30 The international financial system was at risk, and the adopted solution was, substantially, a refinancing of the old debts and new loans that would enable the

22

Cornejo (1999), pp. 402–409. On 17 October 1973, the Organization of Arab Petroleum Exporting Countries (OAPEC) decided that it would not sell more crude oil to countries that had supported the state of Israel in the Yom Kippur War against Egypt and Syria. 24 Millet (2006). 25 Acosta (2002a). 26 Becker (2007), pp. 16–17. 27 From 1972 to 1976, the General Guillermo Rodriguez Lara governed the country and, until 1979, he was replaced by the Supreme Council of Government, a military triumvirate. 28 Uquillas (2007). 29 See: Naranjo Chiriboga (2004), pp. 223–250. 30 See: French-Davis and Devlin (1993), pp. 4–20. 23

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affected countries to continue with the payment of interest. However, there was one condition: the adoption of structural adjustment plans formulated and monitored by the International Monetary Fund. The measure was a necessary condition for the debtor countries to access international credit markets. Latin America would enter what is known as the lost decade. The IMF, in close relationship with international commercial banking, imposed a series of measures that seriously affected the functioning of the country and that represented a clear violation of Ecuador’s sovereign power. Structural adjustment programs of the 80s entailed, substantially, the implementation of the monetarist policies in booming at that time in the capitalist world.31 The conservative governments of Thatcher in the United Kingdom and Reagan in the United States prompted a series of socio-economic measures that, in fact, redistributed the wealth in favor of big capital. This approach, known as neoliberalism, was imposed, and for the first time and with different degrees of intensity, in most of the economically developed world. In these countries, the most relevant measures were directed, in general, to a reduction of public spending, with significant involvement of welfare, and to higher flexibility in the labor market. The State ceased to provide or reduce the provision of services for the population that has historically been considered within its competence, such as health, education, energy, garbage collection, transportation, etc. Private operators replaced the State in some functions that were considered up to that time public.32 In South America, a continent that had not reached high levels of industrialization, the role of the worker was not relevant as in the most prosperous areas of the planet, so that the main measures were directed toward the State and the public spending. The reduction of the fiscal deficit33 and the privatization of public enterprises34 were the two major objectives.35 However, the reality of adjustment programs was very different from the industrialized countries that began the implementation there. In Latin America, there was not a structured market, and the State, in previous decades, had played a fundamental role in terms of consumption and investment. There were two main consequences. First, the party who benefited from the wave of privatizations in Latin America was great international capital, the only actor with the resources to acquire companies that had been public. Secondly, as stated earlier, the State had been an important factor in the definition of the direction that had taken the continent’s economy. The State promoted the process of industrialization in Latin America, creating a socioeconomic model that in Europe had emerged through the regulation of spontaneous

31

Abrego (1991), pp. 566–569. Arriola (1992), pp. 630–632. 33 The fiscal deficit is defined as the difference between revenues and expenditures of public resources in a given time. If the difference is positive, it is known as surplus. 34 In the Latin American context, the international capital acquired principally the assets, while liabilities were nationalized to make the sale more attractive to potential buyers. 35 Arriola (1992), pp. 630–632. 32

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phenomena. 36 The theory was that the natural weakening of the State that begins a process of privatization would leave many countries without the institution that had implemented the major regulatory measures of the economy. This led to the entry of new actors making economic policy in different countries of the region. Institutions such as the International Monetary Fund, the World Bank, and the Inter-American Development Bank were devoted to the planning of the public sector. Labor that, according to the basic rules of democracy, is the responsibility of governments elected by popular vote.37 In Latin America, structural adjustment programs had controversial results. In accordance with the analysis of Arriola,38 reforms were successful in terms of reduction of the fiscal deficit, which, on average, descended from 9.2% in relation to the Gross Domestic Product (GDP) in 1983 to a positive balance of 0.2% and 1.2% in 1990 and 1991. However, they did not solve the two main problems in the region: the external debt and low levels of development. The implementation of adjustment programs meant that a few structural problems were difficult for the continent to solve. Only exports regularly grew, generating foreign currency income normally used for the compliance of the debt service. Domestic markets did not grow due to the significant societal poverty of the population. The reasons that generated the failure of adjustment programs in the Latin American continent are multiple, and, today, there is a general acceptance of those reasons. Adjustment programs were standard plans that, applied to different realities, gave conflicting results. They only partially consider the peculiarities of each economy. A second reason that may also be considered is political. Adjustment programs have been criticized for not representing real development plans for depressed economies but measures to keep countries afloat that had to generate a surplus to service the external debt. The final goal, and perhaps the only one, would have been to ensure the solvency of the international financial system.39 As we said, the implementation of the adjustments brought along an even more important consequence: the drastic reduction of the role of the State. Paradoxically, the structural adjustment programs that were implemented in the OECD (Organization for Economic Cooperation and Development) countries determined a greater State involvement in the economy. It is true that the State renounced its right to act in certain fields, such as the direct production of goods, telecommunications industry, health, education, etc., but its activity did not decrease. In the decade of the 1980s, in almost all the countries of the OECD, government spending has increased because the structural adjustment involved a strong State role in the maintenance of social protection systems, but not only. The State involved itself in a series of activities programmed by the adjustment plans involving large investments. For example,

36

Lechner (2014). Arriola (1992), pp. 630–632. 38 Ibid., pp. 631. 39 Lisandro Abrego. “Los programas de ajuste del FMI: Contenido, bases teórico-analíticas y resultados”, op. cit., pp. 596–601. 37

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training and retraining of the labor force, action-oriented research to technological development in the long term, industrial restructuring, reforms of the financial and administrative system.40 In Latin America, the situation was not the same. Due to the incomplete markets characterized by dominant positions, monopolistic and oligopolistic, of some privileged actors and a chronic lack of purchasing power of the population that never could become a significant demand, the reduction of the State’s role meant a widespread increase in poverty and profits for multinational enterprises that occupied the productive vacuum left by the departure of the State. The Management of the Debt Crisis in Ecuador: Analysis of the Evidence The IMF’s presence in the management of the Ecuadorian external debt was constant. From the first measures taken at the beginning of the 1980s to the last exchange of Brady Bonds to Global Bonds in 2000, 41 crossing by the controversial acquisition of private external debt by the Central Bank in 1983.42 The following analysis is based on the report of the subcommittee of the CAIC that audited the commercial debt.43 Otherwise, the source will be cited. In 1982, Ecuador began to implement the structural adjustment policy ‘proposed’ by the IMF, with the main objective: to generate a surplus that would allow the country to comply with its international commitments. A measure in favor of the creditors. As in other countries of the region, the idea was an immediate reduction of public spending. Since 1983, Ecuador has signed ten letters of intent with the IMF, with the objective of refinancing its debt with private international creditors and the countries that, at that time, constituted the Paris Club. The agreements with the International Monetary Fund were binding to access credit with multilateral agencies such as the World Bank, the Inter-American Development Bank, and the Andean Development Corporation. The management of the debt crisis by the International Monetary Fund has been the study object of the audit executed by the CAIC. According to the conclusions by the subcommittee that audited the commercial debt: The presence of the IMF in the “Economic and Social Stabilization Program-1982”, which is related to the “Financing Plan of 1983” and the “Stand-by Agreement” of 1983, constitutes the point of departure of its interference, and from other international agencies such as the World Bank, through the implementation of economic, political, social and institutional measures in Ecuador, under the pretext of managing the administration of the external debt.44

Summing up the facts, since May 1982, Ecuador implemented a structural adjustment program agreed with the IMF and known as ‘Socio-Economic Stabilization Program-1982’. As mentioned, the plan was oriented toward a macroeconomic

40

Arriola (1992), p. 639. Acosta (2008). 42 Acosta (2008), p. 1. 43 Comisión para la Auditoría Integral del Crédito Público (2017). 44 Comisión para la Auditoría Integral del Crédito Público (2017), p. 2. 41

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adjustment based on the principles of neoliberalism. The structural adjustment of the beginning of the 1980s in Ecuador had a series of specific objectives: (1) a policy of demand reduction of foreign currency oriented to the real economy, mainly through a strong devaluation of the sucre, which was intended to make everything that comes from the outside more expensive. In other words, a general impoverishment of the Ecuadorian people; (2) changes in the interest rate to reduce the gap between savings and investment, offering attractive interest rates for savings; (3) for the purposes of correction of the fiscal deficit, an austerity policy was introduced in public spending, the elimination of subsidies and the creation of new taxes; (4) a decrease of the protections to the local industry; (5) a continuous search of foreign capital. 45 The implementation of this adjustment can be divided into three major stages. The first, related to the original design of the plan, in May 1982. Meanwhile, the debt crisis exploded with the Mexican default declaration. In October of the same year, there was an adjustment of the plan, with the inclusion of further measures related to external debt. The selective policy of imports became stricter. It included a plan of refinancing the debt through new credit. The third stage, held in 1983, focused mainly on the progressive diminution of the restrictions that had been imposed on foreign trade. The results implied a significant reduction in the external deficit and the disappearance of the fiscal deficit. Due to a sharp fall in investment, the gap in savings was reduced. Inflation, after a strong rise, was stabilized. There was a significant reduction in GDP. The real interest rates recovered the levels of inflation. If from the macroeconomic point of view the results were relatively successful, the Ecuadorian population was charged with a high price in terms of quality of life.46 The interference of the International Monetary Fund is evident in the program of debt refinancing with the central bank in 1983. In fact, the relationship between the international private banking and the International Monetary Fund is shown explicitly in the refinancing contracts of 1983, in which the granting of credits was linked to the signing of a stand-by agreement with the IMF and to the implementation of the above-mentioned structural adjustment plan, the so-called Socio-Economic Stabilization Plan. When Ecuador contracted for the refinancing plan of 1983, the country was facing, like others on the Latin American continent, a severe financial crisis mainly generated by the above-mentioned unilateral increase of interest by the US Federal Reserve.47 The interest rate of 6% in the decade of 1970s increased to 21% between the end of the mentioned decade and the beginning of the 1980s.48 Ecuador was deeply affected by the crisis, which worsened because of the Economic-Social

45

Crespo and Guerrero (1998), pp. 7–33. Arriola (1992), p. 631. 47 The interest rates were variable. 48 Frydman (2013). 46

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Stabilization Program, implemented in 1982.49 It is a common opinion that this program had as its main objective generating a surplus to comply with the debt service, although this would mean a significant reduction of the social investment and an increase of external indebtedness.50 According to the audit of public credit carried out by the CAIC, the pernicious relationship between the Fund and the private banking is evident in the Message and Request of the Government of Ecuador, addressed to All the Creditor Banks and Financial Institutions51 of 17 June 1983, a document signed by Jaime Acosta Velasco, President of the Monetary Board; Pedro Pinto Rubianes, Minister of Finance and Abelardo Pachano B., General Director of the Central Bank of Ecuador. In accordance with the CAIC, this official document shows the relationship between the adjustment program and the refinancing of the debt in Ecuador in 1983. This would represent the starting point of interference in the internal affairs of Ecuador by multilateral credit agencies and the International Monetary Fund “through the implementation of economic, political, social and institutional measures in Ecuador, under the pretext of managing the administration of the external debt”.52 The indication appears explicitly: “The refinancing of the Ecuadorian public sector debt is part of a comprehensive program of economic stabilization, undertaken by the IMF, to reduce the fiscal deficit of the country and the need of external financing”.53 The objectives will be reflected in the results. . However, the document does not list the reasons for the state of need: complying with external debt payments. Moreover: The following sections contain a description of the economic and financial programs that are being implemented to support Ecuador’s Letter of Intent to the IMF and the standby facility. The information and projections presented in the tables printed below have been prepared by Ecuador in conjunction with the IMF. In addition to the additional technical changes that may result from the conversion of the private financial sector debt to obligations of the public sector, because of the measures for the private sector external debt, the pictures below are the data that are used for the program of the IMF.54

The document shows the active role of the Fund during the diagnostic. A diagnostic that will be denied in various analyzes carried out in Ecuador. And becomes clear the role of the Fund in what would be known as the process of sucretización: the transfer of the private external debt to the State. The financial crisis that was affecting the country, aggravated by natural events, put the stability of the banking sector at risk. The central bank was the holder of huge loans to private enterprises, which were unable to repay. In 1983, the government of Oswaldo Hurtado took on the debt of private enterprise in dollars in exchange for the commitment of the same to return in

49

SAPRIN Ecuador (2004), pp. 31–92. Gigli (1999), pp. 10–17. 51 In the report of the CAIC, the original document is incomplete. 52 Comisión para la Auditoría Integral del Crédito Público (2017), p. 7. 53 Ibid., p. 7. 54 Ibid., p. 8. 50

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sucres to the Central Bank. Interest rates were very favorable. The time dilated, and the payment of interest was frozen. In the meantime, the devaluation of the sucre against the dollar, as included in the plan to limit imports, made the debt in sucres of the private enterprise with the Central Bank smalled by the day, and dollar debt assumed by the Central Bank ever larger.55 According to the CAIC, another document shows the International Monetary Fund’s constant interference in the internal affairs of the country. On the 20 of May 1983, the IMF sent a telex to the Steering Committee, a set of banks responsible for managing the debt.56 Below, we report the integral document: INTERFUND WASHINGTON D. C. MAY 20, 1983 To George Englhardt C/c Richard Brach Milbank Tweed Hadley Mccloy New York, New York Re Ecuador, (. . .) we have the following remarks: 1. Board discussion on the requested stand-by arrangement will take place as soon as we have been assured that certain tax measures have been implemented. When we have been notified of their implementation, we propose to inform you and to specify the date of the board discussion. As I indicated in my telex of May 3, we would expect a commitment from the banking community before the board discussion. In the absence of such a commitment, I could not assure the executive board that Ecuador’s balance of payments financing requirements for 1983 are in place. 2. If Ecuador agreed that the Central Bank would be the primary obligor of the full amounts of the refinancing of Public Sector Debt and New Loans, the program would require a technical revision. 3. As was explained to the Steering Committee, the amount of New Money specified in my telex of May 3 refers to the financing requirement for the calendar year 1983. If New Money to be provided by the banks should be lower, the balance of payments for the calendar year 1983 would show as an unfinanced gap, and I would not be in a position to recommend approval to the Fund’s Executive Board. I urge your immediate attention to this matter. 4. We would appreciate being kept informed on the status of your negotiation with Ecuador in regard to trade-related and private external debt. 5. The amount of USDollars 4.961 million indicated in my telex as the outstanding public external debt to foreign commercial banks at the end of 1982 was derived from official statistics. 6. I would appreciate it if you would let me know the most likely date by which you could provide me with the New York Commitment on New Money from the banks. I should like to emphasize that early attention by the Fund’s Executive Board to the Ecuadorian

55

Acosta (2001). Members of Steering Committee: Allied Bank International, American Express International Banking Corporation, Bank of America National Trust and Savings Association, Bank of Montreal, Citibank N.A., The Chase Manhattan Bank, Croker National Bank, The Dai-Ichi Kangyo Bank, Limited, Dresner Bank AG, First National Bank of Louisville, Lloyds Bank International Limited, Manufactures Hanover Trust Company, and Mellon Bank N.A. 56

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D. Endrizzi Program depends on action on taxes by from the bank community on financing. mentation of the Stabilization Program revisions. To sum up, there is little time put on track.

the Ecuadorian authorities and commitments Delays may jeopardize the successful implesince they would occasionally need further left to ensure that the Ecuadorian Program is

Regards, J. de Larosiere Managing Director IINTERFUND57

The International Monetary Fund played an active and central role in the implementation of the Socio-Economic Stabilization Program and the 1983 Financing Plan, imposing several conditions that linked the compliance of the first one to the refinancing of the debt that would have come from the international private banking. In point n. 1 of the document, any discussion concerning the stand-by agreement is linked to some not better specified “restrictive measures” that must be implemented. In point n. 3, it’s evident as the “Fresh Money” that would go into the coffers of Ecuador in 1983 would be linked to the need of rebalancing the balance of payments; in other words, it would be used to service the external debt. In point n. 4, the IMF makes an explicit request to the Steering Committee to receive information regarding the current negotiations with Ecuador on the external commercial and private debt. What is the meaning of this request? Is there any interest that Ecuador complies with its commitments to private banking? An interest that could overflow the functions of the Fund. The point n. 6 shows that the attention of the Executive Board of the IMF to the program that is being implemented in Ecuador would be linked to the strict compliance of the country of its commitments in terms of adjustment and the banking community in terms of financing. According to the analysis of the CAIC, there are documents signed by Ecuadorian authorities, which, if necessary, add evidence to the direct involvement of the IMF in the sovereign economic affairs of Ecuador. The first, in Spanish, is a report signed by the General Director of the Central Bank, Abelardo Pachano, and addressed to the Monetary Board on 13 May 1982. The document contains a diagnostic of the economic crisis and a proposal for a “Guidelines for a program of socio-economic stabilization”. The second, in Spanish, is a letter signed by Jaime Acosta Velasco, president of the Monetary Board, addressed to the then President of the Republic, Osvaldo Hurtado Larrea, on 13 May 1982. Its content is very similar to the previous one. The third is a document entitled in English Stabilization Economic Plan Presented by the Monetary Board to the President of the Republic, always on 13 May 1982, signed by Jaime Acosta Velasco, president of the Monetary Board, and addressed to the then President Hurtado. The document is, basically, the same as the second one. In its analysis, the CAIC cast doubts upon the form and the content and proposes a question. Why a document for inter-agency communications appears in English, 57

Comisión para la Auditoría Integral del Crédito Público (2017), pp. 10–11.

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which is not the official language of the Republic of Ecuador? The hypothesis is simple: the first two documents are an adaptation of the third. Comparing the form of the three documents shows the similarities. In document I, p. 5, paragraph 6 (DOC 3) appears that: “In front of this perspective, the Central Bank of Ecuador has been holding the urgent need to undertake a comprehensive program of economic stabilization. Some of the measures have been welcomed and, therefore, issued by the competent agencies”. In document II, page 6, paragraph 4 (DOC 4) appears that “in front of this perspective the Monetary Board has been holding the urgent need to undertake a comprehensive program of economic stabilization. Some of the measures have been welcomed and, therefore, issued by the competent agencies”. Something similar is repeated with slight changes in the text of the document title “Guidelines for a Program of Socio-Economic Stabilization”. In document I, page 6, paragraph 3 (DOC 3) appears “Due to the seriousness of the problem, the General Management of the Central Bank is allowed to reaffirm before the national authorities to adopt a broader set of measures, (. . .).” In document II, page 7, paragraph 4 (DOC 4) appears “Given the gravity of the problem, the Monetary Board is allowed to recommend adopting a broader set of measures (. . .)”. In addition, we note that in documents I (DOC 3) and II (DOC 4), the style of letter corresponds to the writing made by machine, while document III (DOC 5), in the English language, corresponds to a document print by computer, which may be evidenced in the types of letter and in the margins of the document, that is, in its form, the document in English has a different presentation.58

If a first formal analysis suggests an adaptation of a document written in English and from an external source, the analysis of the contents confirms this idea. The CAIC detected what it considers as an important diagnostic error about the causes of the crisis and an inconsistency between the above-mentioned and other diagnostics, both in official documents and in the main academic documents of the time. (. . .) the causes of the current crisis are not recent; on the contrary, these can be traced back to the first tests of industrialization of the 50s and, to a greater extent, during the next decade, a period in which the development model based on the import-substitution industrialization is consolidated. In the decade of the 70s, the growth of the economy continued based on the same guidelines, this time with more profundity due to the significant resources generated by oil exports.59

In the Memorandum 164 DCRP-83, dated 17 June 1983 and signed by Ernesto Pérez C., temporal Undersecretary of Public Credit, appears textually the following diagnostic: 1. Diagnostic of the Current Situation Inflationary pressures and economic recession, as is well known, are internal and external. Among the external causes, we have the impact of the global economic recession, the growth of the interest rates in international markets, and the increased protectionism in all countries with which Ecuador maintains business relationships. Regarding internal causes, we would have to point out the

58 59

Comisión para la Auditoría Integral del Crédito Público (2017), p. 19. Ibid., p. 19.

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overdependence on oil incomes and external indebtedness that make very vulnerable the management of economic policy.60 At the time, there was a shared opinion that the main trigger of the crisis was the interest rate hike by the US Federal Reserve at the end of the decade of the 1970s, which caused international rates to rise significantly.61 While, in the abovementioned very similar documents, the main cause of the crisis appears as marginal, the three documents note that: The Public Sector was characterized by carrying out a policy of exaggerated expenses without the corresponding funding from domestic sources. Consequently, the gap -insufficiency- of foreign currency expanded by increasing the external debt to finance the fiscal deficit and the highest volumes of imports.62

It’s clear that an aggressive debt policy took place in Ecuador which contributed in a decisive way to the crisis. However, the causes of indebtedness do not appear in the above documents. As we saw earlier, the problem was originally a problem of excess liquidity in the banking system, and the solution to solve the problem was by offering cheap loans to many countries of the so-called Third World. The sudden and unilateral increase in interest rates caused the damage. It is wrong to have sought to understand the reasons for the crisis in a development model implemented for 50 years and an. excess of domestic spending without giving importance to the international situation. In the conclusions of the first and the third document, the following text occurs: (. . .) the economic crisis that we are facing today responds, as is demonstrated, to a cumulative process of many years whose correction should have been initiated earlier (. . .) In front of this perspective, the Central Bank of Ecuador has been holding the urgent need to undertake a comprehensive program of economic stabilization. Some of the measures have been welcomed and, therefore, issued by the competent agencies (. . .).63

According to the CAIC, the agencies that issued the recommendations were not internal agencies of Ecuador but the multilateral credit agencies such as the World Bank and the International Monetary Fund. There is evidence of some different perspectives in the two-analysis carried out by the multilateral agencies as to the analysis done at the time by the major Ecuadorian analysts, respectively. What is not clear, or too much clear, it’s why the analysis conducted by the Monetary Board, for example, looks like the analysis made by external actors—maybe the International Monetary Fund?—and not like the analysis of other Ecuadorian authorities and most academic studies at the time.

60

Ibid., p. 20. The PRIME grew from 6.3% in 1976 to 20.5% in 1981 and the LIBOR from a 5.7% in 1976 to a 19% in 1981. 62 Comisión para la Auditoría Integral del Crédito Público (2017), p. 20. 63 Comisión para la Auditoría Integral del Crédito Público (2017), p. 21. 61

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The CAIC reaches another conclusion: the measures recommended in the abovementioned documents clearly go against the national interest. The stabilization program in the country generated mainly recessive effects. According to the analysis of Alberto Acosta,64 there were three main points of the program: elimination of subsidies with a consequent increase in the price of goods and services; devaluation of the currency; reform of the Hydrocarbons Law to attract foreign investment. The measures taken were favorable to the international financial system. It was also recommended the reduction of public investment in productive activities in public sector entities to allocate resources to service the debt, the reduction of the public budget for the year 1983, and the invigoration of a project with resources from the World Bank and the International Monetary Fund. In other words, new debt. The recommendations reported in the three above-mentioned documents are very similar to those that appear in the Letter of Intent signed by Ecuador with the IMF on March 24, 1983, which, according to the analysis of the CAIC, makes it totally plausible that the recommendations contained in the Ecuadorian documents, and supposedly attributed to domestic agencies, have come from the Found. In short, the measures included in the documents, and replicated in the Letter of Intent, included: – Elimination of the forms of payment of imports in order to defer the payment (. . .), – Elimination of the suspension of imports (. . .) - to stimulate the investment of foreign capital in the country (. . .) – Elimination of the provision of foreign exchange for medical treatment outside the country (. . .) - Maintenance of the provision of foreign exchange for scholarship students abroad and for international news services (. . .) – Deserves special mention the refinancing of the private external debt, which in the present (. . .).65

The social costs were very high and apparently predicted. In the second document, the following appears: Particularly, it should be acknowledged that even though an exchange modification has many benefits, it also causes social costs that directly affect the actual purchase capacity of the various popular groups. For this reason, it is necessary to implement a fair remuneration policy to compensate the workers for a probable deterioration in their purchasing power (. . .). In other words, the compensatory measures are indispensable.66

The so-called compensatory measures were poor and inadequate and generated in the country dramatic consequences.67 Ecuador had to transform its economy into a capital-exporting economy. Unfortunately, and unfairly, this was capital for the international private banking sector. The need for compliance with the debt service had increased, and the destiny of eight million people was not important.

64

Acosta (2002b), p. 23. Comisión para la Auditoría Integral del Crédito Público (2017), p. 24. 66 Ibid., p. 25. 67 See: Acosta (2002a), pp. 261–282. 65

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4 Conclusions Sovereignty is a multifaceted concept that refers to absolute, perpetual, indivisible, and inalienable power. Although it has evolved over time and a unique definition is not possible, it’s a concept that, to materialize itself, needs a territory bounded by a border that separates a political organization from another. In modern terms, sovereign power has historically been exercised by a territorial State through its organs, but, in the recent pluralistic theories, this power had been attributed to the people who exert it due to the principle of representativeness. One of the most important field to observe sovereignty in action are the economic affair of a country. In 1982, Ecuador, like other Latin American countries, suffered the consequences of a debt crisis that threw the country to the brink of a financial abyss. The trigger was a unilateral increase in the interest rate by the US Federal Reserve, a fact that had a decisive influence on the loans that Ecuador had contracted in previous years with international banking. Because of the crisis, the country implemented a structural adjustment plan, supervised by the International Monetary Fund, with the aim of bringing order to their accounts, a plan accompanied by a refinancing of the external commercial debt. In mid-2007, President Rafael Correa instituted the Commission for Public Credit Audit, which mainly conducted a comprehensive analysis of the external debt of the country. The CAIC worked for about a year and, at the end of 2008, delivered a report to the President, finding evidence of illegality and illegitimacy in some parts of the obligations. Because of these results, Rafael Correa declared the default of a consistent part of the external commercial debt. The subcommittee of the CAIC that conducted the audit of the commercial debt devoted a chapter to the IMF’s role in the management of the debt crisis. It is possible to arrive at different conclusions. The most important fact was perhaps the link between the commercial debt refinancing and the adoption of a structural adjustment plan designed and supervised by the Fund. Although Ecuador’s financial situation at the time was less than enviable, the causes and the responsibilities in its over-indebtedness were not acknowledged. Firstly, there was a heavy indebtedness when the country was governed by a military dictatorship. As mentioned above, the pluralist theories attribute the sovereign power to the people who exercise it through different organs of the State. What kind of sovereign power had been in the hands of the Ecuadorian people? Secondly, the role of the international banking system in the over-indebtedness of Ecuador was not acknowledged. Lending money to relatively reliable countries at very favorable interest rates had been a need of the big American banks and not of Ecuador. Thirdly, it is true that the country needed to refinance its external commercial debt. The need for liquidity increased. Why did it increase? Mainly because of an interest rate increase in the US and again to solve an exquisitely internal problem: an inflationary drift. The legal protection was weak: the contract talked about variable rates. However, this fundamental change of circumstances would have allowed Ecuador to challenge the contracts based on two simple and effective principles

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of Law: the rebus sic stantibus, which originated in the Roman Law and is present in most Latin legal systems, and the unnecessary hardships, present in the AngloSaxon legal systems. Why would Ecuador not have taken advantage of this opportunity? The answer is that, by questioning the contracts, Ecuador would have had to say goodbye to the international credit circuits. The CAIC, through its audit, provided new documentary evidence regarding the link between the structural adjustment and the access to new credit. To get new loans, the country had to modify its economy and its institutional structure with the aim of generating a surplus that would end up in the coffers of international banks. The conditions imposed on Ecuador by the IMF looked to solve problems generated by others through an attitude that in no so kind words could be defined as blackmail to a country that at the time had no other option.

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Crespo, E., and M. Guerrero. 1998. El ajuste neoestructural vs. el ajuste neoliberal en el Ecuador (Período 1988-1996). Cuenca: Universidad de Cuenca. Ffrench-Davis, R. & Devlin, R. 1993. Diez años de crisis de la deuda latinoamericana. Comercio Exterior, pp. 4–20, Retrieved from: http://revistas.bancomext.gob.mx/rce/magazines/242/1/ RCE1.pdf Frydman, M. 2013. La cesación de pagos de la deuda externa en Ecuador. La revista del CCC, no. 18. Retrieved from: http://www.centrocultural.coop/revista/articulo/404/ Gigli, J. 1999. Neoliberalismo y ajuste estructural en América Latina. Revista del Centro de Estudios Internacionales para el Desarrollo. Retrieved from: http://www.fcpolit.unr.edu.ar/ politicasocial1/files/2015/03/Gigli-Neoliberalismo-y-Ajuste-Estructural-en-AméricaLatina.pdf. Lechner, N. 2014. El debate sobre Estado y Mercado. Estudios 41. Retrieved from: http://www. scielo.org.ar/scielo.php?script¼sci_arttext&pid¼S1852-15682014000100012 Millet, D. 2006. La deuda del Tercer Mundo. CADTM. Retrieved from: http://www.cadtm.org/Ladeuda-del-Tercer-Mundo. Ministerio de Finanzas – Gobierno de Ecuardor. 2008. Ecuador se acoge a período de mora técnica de Bonos Global. Ministerio de Finanzas – Gobierno de Ecuardor. Retrieved from: http://docs. finanzas.gob.ec/documents/10156/43406/Boletin+27%2C+Noviembre+14%3A. Naranjo, M. 2004. Dos décadas perdidas: Los ochenta y los noventa. Cuestiones Económicas 20 (1):3, 223–250. Retrieved from: https://www.bce.fin.ec/cuestiones_economicas/images/ PDFS/2004/No1/Vol.20-1-2004MarcoNaranjo.pdf SAPRIN Ecuador. 2004. Los impactos del Neoliberalismo. Quito: Abda Yala. Skinner, Q. 2003. El nacimiento del Estado. Buenos Aires: Editorial Gorla. Toussaint, E. 2014. Del Sur al Norte: Crisis de la deuda y programas de ajuste. CADTM. Retrieved from: http://www.rebelion.org/noticia.php?id¼186557. Uquillas, C. 2007. Breve análisis histórico y contemporáneo del desarrollo económico del Ecuador. Observatorio de la Economía Latinoamericana, n. 86. Retrieved from: http://www.eumed.net/ cursecon/ecolat/ec/2007/cau-a.htm

Dimitri Endrizzi Ph.D. in Political Studies from Universidad Externado de Colombia. Sociologist from Università degli Studi di Trento, Italy. Professor Endrizzi has been a researcher on migration issues at the History Museum in Trento, Italy, and professor of Research Methodology at Universidad Externado de Colombia, in Bogotá, a teacher in the Faculty of Law of Universidad Católica de Colombia as well as a researcher of the group Phronesis at the Faculty of Law of Universidad Católica de Colombia.

As a Conclusion: The New Relevance of the Old Frontier Dimitri Endrizzi

In 2019 we remembered the fall of the Berlin Wall. It had been 30 years since that November 9th, 1989, when television stations from all continents were broadcasting the beginning of the end of the division between the so-called free world and the communist countries. In our minds, the Berlin Wall had symbolized all the separations of the past, and due to its collapse, all the remnants of obscurantism that still affected our world would have been wiped out by the powerful dynamics of a phenomenon which would be named globalization. However, something different happened. Globalization is a complex and contradictory reality that has often been understood from the role of the nation-state in an international scenario characterized by the evolution of the changing essence of frontiers. Since the 1990s, academic analyses of the new international order recovered both the Kantian tradition and the critical interpretation of the new processes. Due to this, the meaning attributed to the nation-state has oscillated among contrasting ideas: the last defender of traditional values, an obstacle for the global society, the essential base of cosmopolitan democracy, etc. If a symbolic event as the fall of the Berlin Wall surely opened the doors to a path towards the cancellation of the barrier constituted by old frontiers, reinforcing this way the well-known process of state power decline, it also laid the groundwork for a series of contradictions. Perhaps the first acknowledged protest against globalization could show us a facet—may be the most visible—of the above-mentioned contradictions. Ten years after the fall of the Berlin Wall, something happened in Seattle, in the United States of America. At the World Trade Organization conference, a heterogeneous mass of 40,000 people protested negotiations aimed at new liberalizations. Political activists, Professor Dimitri passed away during the final editing of this book. D. Endrizzi (*) Faculty of Law, Universidad Católica de Colombia, Bogotá, Colombia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 D. Endrizzi et al. (eds.), Frontiers – Law, Theory and Cases, https://doi.org/10.1007/978-3-031-13607-8_11

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ecologists, the anarchist movement called black blocks, etc., despite the difference among them, achieved to organize a new kind of protest. The so-called Battle of Seattle made the existence of an anti-globalization movement visible to the world. Where is the contradiction? Anti-globalization protests in Seattle were perhaps the most globalized event in the world at that time. Nowadays, it is common that resistance to globalization is also expressed in the nation-state’s political dynamics. At a time in which for the nation-state is hard to manage some typically contemporary phenomena such as migrations, we are observing an escalation of nationalist movements that are inspired by old narratives to build new realities. Especially in the welfare societies, we are seeing the emergence of ethnocentric reactions against the different, characterized by a constant call for retaking an intra-border dimension. It is a hard closure towards the new and the outside. An inevitable consequence of the globalization process? We don’t think so. Rather, a bad response is determined by a kind of fear principally generated by ignorance. The twenty-first century opened with a new age of walls. The traditionally most problematic borders have been strengthened: the wall between the two Koreas, the ‘green line’ which cuts the Greek side from the Turkish one in Cyprus, the trenches between India and Pakistan, the sand wall of Western Sahara, just to mention the most important ones. And in some areas of the world with high levels of conflict, barriers have multiplied. An unhappy near novelty were the walls built against the so-called illegal immigration. Among them, maybe the most well-known is the wall on the US-Mexico border. Called somewhat disparagingly as ‘tortilla wall’, it is currently the longest barrier in the world. It was built to ban the entry of migrants, substantially low-income people who flee Latin American countries in search of a new and better life. Every kind of obstacle can be found on the border: concrete palisades, anti-vehicle ditches, steel pipes, etc. In this area, a typical phenomenon of any frontier is amplified. The geopolitical space has a life of its own. For example, in the central part of the border, around Ciudad Juarez, the frontier on both sides of the Rio Grande is so vast and complex that it has its own name with a meaning that leaves no room for doubt. It is called Third Nation, Tercera Nación in Spanish, or even Mexamerica. Does the existence of a border make sense? Europe, with a stronger tradition in human rights issues, followed the not-soflattering example of the US. A barbed wire is currently surrounding a big part of the territory of Macedonia, Bulgaria, Hungary, Serbia, Croatia, and Slovenia. This is the way in which the so-called ‘Balkan route’ was closed to prevent the passage of thousands of refugees. If we look to the south of the continent, in the two enclaves of Ceuta and Melilla between Spain and Morocco, the barriers have been recently elevated to the height of six meters and strengthened with all kinds of electronic technology. Europe in general—including the Mediterranean area, which has always been characterized by openness and hospitality policies—distinguishes itself by police rationality to defend its external border. The fortress has been entrenched. We believe that the idea of a world without frontiers is far from being consolidated. On the contrary, today, we are witnessing a distortion of this idea through a speech manipulated by political forces in order to enlarge its voters base by

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fomenting fear. Old systems of thought have returned with their destructive force. There is a new obsession with old frontiers. But what can a world divided by frontiers mean today? We must distinguish the concept of land, in a physical sense, from the concept of territory, understood as a political space. The latter is an element that has become the basis on which the sovereignty that owns the State was established. And to consolidate sovereignty, we need frontiers. Without the political space of the territory, it would not be possible to think of the State the way we are thinking of it. The science of cartography has documented and ratified the occupation of the territories, and artificial limits were often justified with natural elements such as mountains, rivers, valleys, coasts, etc. It could be the reason why it is so difficult to move away from the strong idea of a frontier that has taken root in our cultures. If we look to Italy, for example, we can observe that the country is separated from others by the Alps in the north and surrounded by the sea in the other parts of the territory. It seems obvious that a natural frontier exists. However, political borders have very little naturalness, as the States that have been constituted within them and that organize the lives of people born inside these limits, separating them irremediably from the lives of other people who were born only a few kilometers away. Frontiers cannot be understood as precise delimitations. In real life, they are places of communication and contact, of encounter, which rather than marking the end of the territory, represent its projection into another. To conclude our last reflections on the multifaceted reality of frontiers, it is inevitable to talk about the current health emergency. On March 11, 2020, the Director-General of the World Health Organization (WHO), Tedros Adhanom Ghebreyesus, determined that the spread of the COVID-19 disease would have to be treated as a pandemic. It would not be possible to prevent the SARS-COV2 virus from reaching the farthest corners of our planet. The main consequence we can observe is that the apparently moribund nationstate acquired a new political role. One of the leitmotifs of the writings on globalization had been precisely to highlight the steady loss of relevance of the nation-state as a political actor. This had led to questioning the capacity of national governments to determine the economic and social destiny of the citizens living inside their borders. Lawrence Summers, one of the main ideologues of the Washington Consensus— the document that laid the foundations of modern globalization—had published on May 14, 2020, an article in the Financial Times entitled Covid-19 looks like a hinge in history, stating that in the twenty-first century there were three major cataclysms that we can consider as global: the terrorist attacks of 2001, the global financial crisis of 2007–2009 and the current COVID-19 pandemic. The terrorist attacks of 2001 and the global financial crisis of 2007–2009 failed in changing the essence of a world that had so far been significantly shaped by the dynamics of globalization. They simply slowed down the process for a while. A few days after the attacks on the Twin Towers and the Pentagon, international flights suspended for security reasons were resumed, and everything returned to the normality we had known. And something very similar happened during the financial crisis. Extraordinary economic

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interventions brought the economic and financial life that knew no boundaries back to a kind of normality. The COVID-19 pandemic achieved in a matter of weeks what the terrorist attacks of September 11, 2001, and the global financial crisis of 2007–2009 failed to attain: the revitalization of the nation-state. Frontiers have recovered their lost importance, and states are once again playing a decisive role in shaping the daily lives of their citizens. We had become accustomed to a situation characterized by moving in wide and diffuse spaces in terms of both political and economic freedoms. If in the case of the limitations of personal freedoms, we can think of a passing phenomenon that will fade away once the health emergency is over, we believe that the same will not happen regarding some economic issues. Just to mention perhaps the most relevant fact, the Government of Japan established to relocate the strategic industry within its borders, previously located in China, to prevent future global value chains from being affected again. The affair is generating a debate about the economic desirability of producing in a country that offers low costs vs. the importance of being able to make any kind of decisions regarding the way in which it is possible to produce. And total control is possible only if we produce within the borders of our country. Nowadays, frontiers can show different dimensions: visible or invisible, real or symbolic, political or ethnical, etc. However, we think that in all cases, they belong to a scenario of separation and exclusion. Far from being abolished, frontiers are still the cornerstone of the dominant way in which we understand human relations. The recent walls could confirm that. A barrier, no matter its nature, is just the expression of an idea of declining sovereignty trying not to fade at the expense of human beings. The barriers among people are not only the answer given by nationalistic revanchism to a globalized world. They clearly show a way of thinking based on fear of what is different, foreign, somehow unknown. A way of thinking that can generate only one consequence: a grotesque self-segregation. Dimitri Endrizzi Ph.D. in Political Studies from Universidad Externado de Colombia. Sociologist from Università degli Studi di Trento, Italy. Professor Endrizzi has been a researcher on migration issues at the History Museum in Trento, Italy, and professor of Research Methodology at Universidad Externado de Colombia, in Bogotá, a teacher in the Faculty of Law of Universidad Católica de Colombia as well as a researcher of the group Phronesis at the Faculty of Law of Universidad Católica de Colombia.