Asking the IACtHR to define the conditions under which Nicaragua could exercise its rights allows Colombia to portray Nicaragua’s 2012 win, as well as eventual favourable results in pending cases, as merely nominal. This is because, should Nicaragua decide to exercise the rights recognised to it by the ICJ by going ahead with building the infrastructure for natural resource exploitation projects in the Caribbean, it should have to carry out Environmental Impact Assessments (EIAs). Given the extra-territorial implications Colombia seeks to establish before the IACtHR, any such EIAs would have to involve Colombian cooperation and participation. It is clear that this is an important consideration for Colombia, as reflected in the wording of question three. That question speaks of EIAs as a way of complying with “[the] obligation to prevent environmental damage which could restrict or preclude the effective enjoyment of the rights to life and personal integrity [under the ACHR]” and specifically enquires about that obligation’s implications vis-à-vis “cooperation with the States that could be affected”.
The IACtHR should reject Colombia’s advisory request. This is because, as previously argued, the questions are an attempt to prevent the effectiveness of decisions at the ICJ, even if the issues put forward are inherently important from both a human rights and environmental law perspective. The main reason for this is that the issuance of an advisory opinion on the terms advanced by Colombia encroaches upon the dispute-settlement mandate of the ICJ which grounds its jurisdiction in a fundamental treaty of the inter-American system, the Pact of Bogota.
There is precedent for such an approach by the IACtHR. Of particular moj database importance is the recently rejected application for an advisory opinion by the Secretaty General o fthe Organization of American States, Luis Almagro. The Secretary General asked the IACtHR to pronounce itself on the content of due process rights, as protected by the ACHR, in the context of the impeachment process which had provisionally ousted Brazilian President Rousseff. The IACtHR rightly exercised its discretion to reject the request taking into account that, due to the facts of the case, such an advisory opinion would be used to surreptitiously litigate what is otherwise a contentious case before Brazilian courts which, in due course, might reach the IACtHR as a contentious case (paras 6-7.) That in this case the contentious jurisdiction which would be encroached upon is that of another international tribunal should not render the underlying principle at play inapplicable.
Moreover, in framing the appropriate role and function of its advisory jurisdiction, the IACtHR has stated that it should “contribute to Member States and OAS organs’ effective compliance with their international obligations” (para 6, citing OC-16/99 and OC-18). These obligations are not only those enshrined in the ACHR, but more broadly international obligations in the context of the OAS. All of the above taken into account, the IACtHR should be aware that it is not the only tribunal with dispute settlement competence in the inter-American system. Quite the contrary, the Pact of Bogota, the treaty which forms the basis of the ICJ’s jurisdiction to settle disputes between Nicaragua and Colombia, is a multilateral treaty the object and purpose of which is interstate pacific settlement of disputes within the OAS framework. In this case, an intervention by the IACtHR would defeat the aims of the Pact of Bogota as it would allow Colombia to continue challenging the binding authority of the ICJ in a matter which clearly falls under its jurisdiction.