In case of an eventual boundary treaty between Colombia and Nicaragua it is necessary to create protection strategies to preserve the territorial, ethnic and sociocultural integrity of the Raizal community by preserving the territory collectively, as well as through special national or bilateral regulations.

In a recent analysis article published by UN Periódico, Ortiz considers the effects of the ruling of the International Court of Justice of November 19, 2012 was particularly negative to the ethnic and territorial rights of the Raizal community of San Andrés, Providencia and Santa Catalina.

Furthermore she says the ruling did not consider the presence of the Raizal community in the territory and its historic, ancestral, cultural and economic dependency of the territorial sea in dispute.

For Ortiz during the legal dispute the parties ignored the presence of an ancestral nation protected by the International Human Rights Law which has been on the island for more than 400 years; even before the governments in dispute were formed.

Additionally the self-determination of the Raizals and the right to have their legal and informed consent, continues to be transgressed, compromising the integrity of their territory and its natural resources which support their right to food safety, work and dignified life; and despite Covenant 160 of the International Labour Organization (ILO) on the rights of Indian Communities of independent countries approved by

Colombia and Nicaragua, which states that indigenous peoples have the right to enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination and also that the peoples involved should have the opportunity to participate freely at all levels in the formulation, implementation and evaluation of measures and programs that affect them directly.

The Colombian Constitutional court has also explicitly said that the reasons for which the rights of the Raizals self-determination should be recognized is the threat over the sovereignty of the islands as written on Ruling C–086 of 1994: “The Constituent Assembly of 1991 was aware of the importance of the archipelago and the sovereignty threats upon it.”

The ICJ also established that said right is directly linked with the indigenous people’s right to a cultural identity, as it is an intrinsic form of life liked to a territory and by virtue of articles II (Right to Equality), XVIII (Right to Due Legal Process and Fair trial) and XXIII (Right to Property) of the American Declaration of the Rights and Duties of Man.

However the precarious defense in terms of use of tools of Colombian and International Human Rights laws led, with other lack of arguments, to a loss of maritime territory of Colombia to Nicaragua, to the detriment of the territorial rights of the Raizal community.

If there is a new boundary treaty among the parties, as the Colombian defendants have claimed, the historic territory of the Raizal community should be accepted as an area of joint and sustainable use between the two countries, with exclusive exploitation of Indian and Creole communities of the Nicaraguan coast and the Raizals of San Andrés, with environmental and cultural sustainability principles of the Seaflower Biosphere Reserve and in developing the commitment of both countries for integration and autonomy of ethnic groups in accordance to ILO Convention 169.

Agencia de Noticias UNAL |