As Sands notes in the related climate change litigation context, the time may be ripe for definite contribution by international courts and tribunals on such issues, particularly through advisory opinions. Matters like the interaction of human rights treaties and IEL obligations, be them treaty or custom-based, could be clarified. However, such an opportunity should not minimise the monumental challenges inherent to the endeavour. Amongst many issues, the IACtHR might find it difficult to lay down concrete state obligations where injury results from conduct contributed to by states with dissimilar obligations as a matter of IEL.
Also, given that the IACtHR would primarily be dealing with the ACHR’s content, matters central to its effectiveness such as exhaustion of domestic remedies should be addressed as well. Moreover, the extra-territorial application of the ACHR – central in Colombia’s request – is a non-explored issue by the IACtHR (although in 1999 the Inter-American Commission on Human Rights issued a merits report asserting the extra-territorial application of the ACHR in the context of the United States invasion of Grenada in 1983).
These are not unsurmountable legal challenges. However, it should be noted that moj database the request is connected to existing litigation of Colombia and Nicaragua at the International Court of Justice (ICJ). Thus, intervention by the IACtHR should be waged also against broader policy considerations such as the need to preserve the dispute-settlement authority of the ICJ which as it is currently adjudicating on a set of cases between Colombia – the requesting state before the IACtHR – and Nicaragua – the applicant state in three cases against the former at the World Court.
In 2012 the ICJ delivered its Territorial & Maritime Dispute (Nicaragua v. Colombia) setting maritime limits in the Caribbean Sea. Markedly, the decision declared waters, estimated to be around 75,000 Km2 in extension, to be Nicaraguan, but did not pronounce on the merits of the applicant’s request for delimitation beyond 200 nautical miles. The islands of San Andres, Providencia and Santa Catalina, as well as other features in the area remain Colombian. On 27 November 2012 Colombia gave formal notice of denunciation of the Pact of Bogotá – the jurisdictional basis of the ICJ disputes with Nicaragua. This prompted Nicaragua to file two applications related to the 2012 judgment before the one-year term before effective denunciation expired: The Alleged Violations case, regarding non-implementation of the 2012 decision, and the Question of the Delimitation of the Continental Shelf Between Nicaragua and Colombia Beyond 200 Nautical Miles from the Nicaraguan Coast.