Audience publique tenue le vendredi 6 mars 2009, à 10 heures, au Palais de la Paix, sous la présidence de M. Owada, président, en l'affaire du Différend relatif à des droits de navigation et des droit

Document Number
133-20090306-ORA-01-00-BI
Document Type
Number (Press Release, Order, etc)
2009/5
Date of the Document
Bilingual Document File
Bilingual Content

Non-Corrigé
Uncorrected

CR 2009/5

International Court Cour internationale
of Justice de Justice

THHEAGUE LAAYE

YEAR 2009

Public sitting

held on Friday 6 March 2009, at 10 a.m., at the Peace Palace,

President Owada presiding,

in the case concerning the Dispute regarding Navigational and Related Rights
(Costa Rica v. Nicaragua)

________________

VERBATIM RECORD
________________

ANNÉE 2009

Audience publique

tenue le 6 mars 2009, à 10 heures, au Palais de la Paix,

sous la présidence de M. Owada, président,

en l’affaire du Différend relatif à des droits de navigation et des droits connexes
(Costa Rica c. Nicaragua)

____________________

COMPTE RENDU
____________________ - 2 -

Present: Presiewtada
Judges Shi

Koroma
Al-Khasawneh
Buergenthal
Abraham

Keith
Sepúlveda-Amor
Bennouna
Skotnikov

Cançado Trindade
Yusuf
Greenwood
Judge ad hoc Guillaume

Registrar Couvreur

⎯⎯⎯⎯⎯⎯ - 3 -

Présents : M. Owada,président
ShiMM.

Koroma
Al-Khasawneh
Buergenthal
Abraham

Keith
Sepúlveda-Amor
Bennouna
Skotnikov

TCinçade
Yusuf
Greugesood,
Gjil.eume, ad hoc

Cgoefferr,

⎯⎯⎯⎯⎯⎯ - 4 -

The Government of the Republic of Costa Rica is represented by:

H.E. Mr. Edgar Ugalde-Alvarez, Ambassador, Vice-Minister of Foreign Affairs of Costa Rica,

as Agent;

Mr. James Crawford, S.C., F.B.A., Whewell Prof essor of International Law, University of

Cambridge, member of the Institute of International Law,

Mr. Lucius Caflisch, Emeritus Professor of Interna tional Law, Graduate Institute of International
and Development Studies, Geneva, member of th e International Law Commission, member of

the Institute of International Law,

Mr. Marcelo G. Kohen, Professor of International Law, Graduate Institute of International and
Development Studies, associate member of the Institute of International Law,

Mr. Sergio Ugalde, Senior Adviser to the Ministry of Foreign Affairs of Costa Rica, member of the
Permanent Court of Arbitration,

Mr. Arnoldo Brenes, Senior Adviser to the Ministry of Foreign Affairs of Costa Rica,

Ms Kate Parlett, Special Adviser to the Ministry of Foreign Affairs of Costa Rica, Solicitor
(Australia), PhD candidate, University of Cambridge (Jesus College),

as Counsel and Advocates;

H.E. Mr. Francisco José Aguilar-de Beauvillie rs Urbina, Ambassador of Costa Rica to the

Kingdom of the Netherlands,

Mr. Ricardo Otarola, Chief of Staff to the Vice-Minister of Foreign Affairs of Costa Rica,

Mr. Sergio Vinocour, Minister and Consul General of Costa Rica to the French Republic,

Mr. Norman Lizano, Consul General of Costa Rica to the Kingdom of the Netherlands,

Mr. Carlos Garbanzo, Counsellor at the Permanent Mission of Costa Rica to the United Nations

Office at Geneva,

Mr. Fouad Zarbiev, PhD candidate, Graduate Institute of International and Development Studies,
Geneva,

Mr. Leonardo Salazar, National Geographic Institute of Costa Rica,

as Advisers;

Mr. Allan Solis, Third Secretary at the Embassy of Costa Rica in the Kingdom of the Netherlands,

as Assistant Adviser. - 5 -

Le Gouvernement de la République du Costa Rica est représenté par :

S. Exc. M. Edgar Ugalde-Alvarez, ambassadeur, vice-ministre des affaires étrangères du
Costa Rica,

comme agent ;

M.JamesCrawford, S.C., F.B.A., professeur de droit international à l’Université de Cambridge,
titulaire de la chaire Whewell, membre de l’Institut de droit international,

M.LuciusCaflisch, professeur émérite de dro it international de l’Institut de hautes études

internationales et du développement de Ge nève, membre de la Commission du droit
international, membre de l’Institut de droit international,

M. Marcelo G. Kohen, professeur de droit interna tional à l’Institut de hautes études internationales

et du développement de Genève, membre associé de l’Institut de droit international,

M.SergioUgalde, conseiller principal auprès du ministère des affaires étrangères du CostaRica,
membre de la Cour permanente d’arbitrage,

M. Arnoldo Brenes, conseiller principal auprès du ministère des affaires étrangères du Costa Rica,

MmeKateParlett, conseiller spécial auprès du ministère des affaires étrangères du CostaRica,

Solicitor (Australie), doctorante à l’Université de Cambridge (Jesus College),

comme conseils et avocats ;

S. Exc. M. Francisco José Aguilar-de Beauvilliers Urbina, ambassadeur du CostaRica auprès du
Royaume des Pays-Bas,

M.RicardoOtarola, chef d’état-major auprès du vice-ministre des affaires étrangères du
Costa Rica,

M. Sergio Vinocour, ministre et consul général du Costa Rica en République française,

M. Norman Lizano, consul général du Costa Rica au Royaume des Pays-Bas,

M.CarlosGarbanzo, conseiller à la mission pe rmanente du Costa Rica auprès de l’Office des
Nations Unies à Genève,

M.FouadZarbiev, doctorant à l’Institut de haut es études internationales et du développement de
Genève,

M. Leonardo Salazar, Institut géographique national du Costa Rica,

comme conseillers ;

M. Allan Solis, troisième secrétaire à l’ambassade du Costa Rica au Royaume des Pays-Bas,

comme conseiller adjoint. - 6 -

The Government of the Republic of Nicaragua is represented by:

H.E. Mr. Carlos José Argüello Gómez, Ambassador of Nicaragua to the Kingdom of the
Netherlands

as Agent and Counsel;

Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., member of the English Bar, former Chairman of the
International Law Commission, Emeritus Chichele Professor of Public International Law,
University of Oxford, member of the Institut de Droit International; Distinguished Fellow, All

Souls College, Oxford,

Mr. Stephen C. McCaffrey, Professor of Internati onal Law at the University of the Pacific,
McGeorge School of Law, Sacramento, United States of America, Chair of the International
Law Commission,

Mr. Alain Pellet, Professor at the University of Paris Ouest, Nanterre-La Défense, member and
former Chairman of the International Law Commission,

Mr. Paul Reichler, Attorney at Law, Foley Hoag LLP, Washington D.C., member of the Bar of the
United States Supreme Court, member of the Bar of the District of Columbia,

Mr. Antonio Remiro Brotóns, Professor of International Law, Universidad Autónoma, Madrid,

as Counsel and Advocates;

Ms Irene Blázquez Navarro, Doctor of Public International Law, Universidad Autónoma, Madrid,

Ms Clara E. Brillembourg, Attorney at Law, Foley Hoag LLP, member of the Bars of the District
of Columbia and New York,

Mr. Lawrence H. Martin, Attorney at Law, Foley Hoag LLP, Washington D.C., member of the Bar

of the United States Supreme Court, member of the Massachusetts Bar, member of the Bar of
the District of Columbia,

Mr. Walner Molina Pérez, Juridical Adviser, Ministry of Foreign Affairs of Nicaragua,

Mr. Daniel Müller, Researcher at the Centre de droit International de Nanterre (CEDIN),
University of Paris Ouest, Nanterre-La Défense,

Ms Tania Elena Pacheco Blandino, Counsellor, Embassy of Nicaragua in the Kingdom of the
Netherlands,

Mr. Julio César Saborio, Juridical Adviser, Ministry of Foreign Affai
rs of Nicaragua,

Mr. César Vega Masís, Director of Juridical Affairs, Sovereignty and Territory, Ministry of
Foreign Affairs of Nicaragua,

as Assistant Counsel. - 7 -

Le Gouvernement de la République du Nicaragua est représenté par :

S. Exc. M. Carlos José Argüello Gómez, ambassadeur du Nicaragua auprès du Royaume des
Pays-Bas,

comme agent et conseil ;

M. Ian Brownlie, C.B.E., Q.C., F.B.A., membre du barreau d’Angleterre, ancien président de la
Commission du droit international, professeur ém érite de droit international public (chaire
Chichele) de l’Université d’Oxford, membre de l’Institut de droit international, Distinguished

fellow au All Souls College d’Oxford,

M. Stephen C. McCaffrey, professeur de droit international à la McGeorge School of Law de
l’Université du Pacifique à Sacramento (Etats -Unis d’Amérique), président de la Commission
du droit international,

M. Alain Pellet, professeur à l’Université de Pari s Ouest, Nanterre-La Défense, membre et ancien
président de la Commission du droit international,

M. Paul S. Reichler, avocat au cabinet Fole y Hoag LLP, Washington D.C., membre des barreaux
de la Cour suprême des Etats-Unis d’Amérique et du district de Columbia,

M. Antonio Remiro Brotóns, professeur de dro it international à l’Universidad Autónoma de

Madrid,

comme conseils et avocats ;

Mme Irene Blázquez Navarro, docteur en droit international public, Universidad Autónoma de
Madrid,

Mme Clara E. Brillembourg, avocat au cabinet Foley Hoag LLP, membre des barreaux des districts

de Columbia et de New York,

M. Lawrence H. Martin, avocat au cabinet Foley Hoag LLP, Washington D.C., membre des
barreaux de la Cour suprême des Etats-Unis d’Amérique, du Massachusetts et du district de

Columbia,

M. Walner Molina Pérez, conseiller juridique au ministère des affaires étrangères du Nicaragua,

M. Daniel Müller, chercheur au Centre de droit in ternational de Nanterre (CEDIN), Université de

Paris Ouest, Nanterre-La Défense,

Mme Tania Elena Pacheco Blandino, conseiller à l’ambassade du Nicaragua au Royaume des
Pays-Bas,

M. Julio César Saborio, conseiller juridique au ministère des affaires étrangères du Nicaragua,

M. César Vega Masís, directeur, direction des affaires juridiques, de la souveraineté et du territoire,

ministère des affaires étrangères du Nicaragua,

comme conseils adjoints. - 8 -

The PRESIDENT: Please be seated. The sitting is open. The Court meets today to hear the

continuation of the first round of oral argument of the Republic of Nicaragua. Now, this morning I

am going to invite Mr. Reichler to take the floor as the first speaker.

RMEr. HLER:

NICARAGUA ’S LAWFUL REGULATION OF NAVIGATION ON
THE SAN J UAN R IVER

1. Mr.President, distinguished Members of the Court, it is always an honour for me to

appear before this great Court. I am especially privileged today to speak on behalf of the Republic

of Nicaragua.

2. It is my role to discuss Nicaragua’s regula tion of navigation on the San Juan River, and to

demonstrate that it has been lawful in all respects, and in particular that it has not violated

Costa Rica’s rights under the Treaty of Limits of 1858.

3. I will make three fundamental points. Firs, the Treaty of Limits, which by its express

language recognizes that Nicaragua exclusively has “dominio” and “sumo imperio” over the

San Juan River, necessarily bestows upon Nicaragua, as the exclusive holder of sovereign authority

over the river, the police power to regulate activis on or pertaining to the river, including the

manner in which navigation is conducted.

4. Second, there is no inherent contradiction between Nicaragua’s right to regulate

navigation, in her capacity as sovereign over thriver, and CostaRica’s right to free navigation

“con objetos de comercio”. Nicaragua’s regulation of navigation, far from negating or diminishing

Costa Rica’s freedom of navigation, is fully compatible with it under long-established principles of

international law and practice.

5. Third, the evidence proves that, in practice, caragua has regulated navigation on the

river, including navigation by CostaRica, in a reasonable and non-discriminatory manner. As a

consequence, CostaRica’s claim that Nicaragua’s regulations violate her right of free navigation

“con objetos de comercio” must fail. - 9 -

A. The 1858 Treaty establishes Nicaragua’s exclusive sovereignty over the San Juan River,

which necessarily endows her with the power to regulate navigation

6. I begin with the first point: Nicaragua’s power to regulate navigation on the SanJuan

River. ArticleVI of the Treaty of Limits st ates that Nicaragua “shall have exclusively the

dominion and sovereign jurisdiction” over the waters of the river San Juan “but that the Republic of

CostaRica shall have the perpetual right of free navigation on the said waters... said navigation

being for the purposes of commerce [con objetos de comercio]”. Now, the term “objetos de

comercio” has been the subject of sustained debate. I will not revisit it. Instead, I will proceed

from the premise that regardless of the meaning th at the Court ultimately attributes to the phrase

“con objetos de comercio”, and even if for purposes of argument “con objetos de comercio” means

“for commercial purposes”, Nicaragua still has the right to regulate Costa Rican navigation on the

San Juan River.

7. Costa Rica’s argument that Nicaragua does not have this right is a simple one: she claims

that under ArticleVI she has the right to free navigation. And according to CostaRica, “free”

means free in the most absolute sense possible. This is what she says in her Memorial:

“CostaRica’s perpetual right of free na vigation is the right to navigate freely,

without impediments, conditions, restrictions or charges or duties of any kind. Any
interference, whether in the form of regulations, impediments, charges or restrictions
or any condition that might be imposed is a violation of that right.” 1

At these hearings, Professor Caflisch expressed the view that Costa Rica’s right of free navigation

is “absolute” and “unconditional” 2.

8. The problem with Costa Rica’s argument is that it is based on a highly selective reading of

the text of ArticleVI. In particular, CostaRica treats the language pertaining to her right to

navigate on the SanJuan in complete isolation from the rest of the Article, and, indeed, she

divorces it from the rest of the same sentence of the Article that includes her right of navigation. It

is as if, for Costa Rica, the entire sentence, if not a ll of Article VI, exists solely and exclusively to

confer upon her an absolute and unconditional right of free navigation on the river. But that view

is not consistent with the Treaty langu age. The key sentence of ArticleVI ⎯ the one in which

CostaRica’s right of navigation is found ⎯ begins with the declaration that Nicaragua has

1
Memorial of Costa Rica (MCR), para. 4.16.
2CR 2009/3, para. 35; p. 23, para. 7; p. 30, para. 23; p. 31, para. 26; p. 33, para. 33. - 10 -

“exclusively the dominion and sovereign jurisdiction [exclusivamente el dominio y sumo imperio]

over the waters of the San Juan River”. The sen tence then continues with the word “but” (“pero ”

in Spanish), which introduces the dependent clause that “the Republic of Costa Rica shall have the

perpetual right of free navigation on the said wate rs... said navigation being for the purposes of

commerce [con objetos de comercio]”.

9. Nicaragua recognizes, of course, and has never denied, that Article VI gives Costa Rica a

right of free navigation on the San Juan River “con obj etos de comercio”. But Article VI makes it

clear that this right of CostaRica exists with in the overall context of Nicaragua’s exclusive

dominion and sovereign jurisdiction over the river. The real difference between the two Parties in

this case is that Nicaragua recognizes Costa Rica’s right to navigate “con objetos de comercio”, but

CostaRica effectively disregards Nicaragua’s ex clusive dominion and sovereign jurisdiction over

the river, paying it no more than lip service at best. When ProfessorCaflisch argues that

CostaRica’s right of free navigation under Article VI is “absolute” and that “it exists for

CostaRica independently of the rights of others”, such that her navigation is exempt from

regulation by Nicaragua, he is in effect reading out of the Treaty Nicaragua’s exclusive dominion

3
and sovereign jurisdiction over the river .

10. The words in Spanish, which the drafters of the 1858Treaty used to express the power

that Nicaragua was to have “exclusively” are “dominio”, dominion, and “sumo imperio” 4. One

need not be a famous Latin scholar, like my good friend Professor Pellet, to recognize that “sumo

imperio” is a classical formulation derived from the Latin summum imperium or imperium

summum. It connotes the very highest level of sovereign authority. According to a contemporary

Spanish source, the Enciclopedia Moderna ⎯ Modern Encyclopedia ⎯ published in Madrid in

1855:

“[T]he state, designated with the generic names civitas and republica, whether
monarchical, aristocratic or democratic in government, once constituted is not
subjected to any other person, nor any other state; it could freely do anything

necessary for its conservation, without anyone having the right to prevent it from

3
CR 2009/3, p. 23, para. 7.
41858 Treaty of Limits, Art. VI. - 11 -

exercising its rights, 5eing accountable only to God... This is what is called
imperium summum.”

11. If Nicaragua’s exclusive “sumo imperio” over the river is given its natural and ordinary

content, especially as it was understood by the authors of the Treaty in 1858, it must necessarily

include the right to issue laws and regulations regarding activities on the river, including,

especially, navigation. To be sure, in exer cising her sovereign regulatory power over river

navigation, Nicaragua may not deprive CostaRica of her right of free navigation “con objetos de

comercio” under the Treaty, either directly, or by imposing requirements that are unreasonable,

arbitrary or discriminatory. In this way, the rights of both States under the Treaty are preserved,

and given their full measure of expression.

12. In her written pleadings, CostaRica has argued: “ArticleVI makes Nicaragua’s

dominion and sovereign jurisdiction over the River conditional upon the CostaRican perpetual

6
rights of free navigation.” To CostaRica, Nicaragua’s sovereignty is “conditional”, while her

own right is, as ProfessorCaflisch described it, “ unconditional”. In this manner CostaRica turns

the logic and the language of ArticleVI on its head. The plain language of that Articlemakes it

clear that Nicaragua’s sovereignty, her “sumo imperio”, is not conditioned on CostaRica’s

navigational rights. To the contrary, Costa Rica’s right of free navigation exists within the context

of Nicaragua’s exclusive summum imperium.

13. ProfessorCaflisch accuses Nicaragua of a dvocating a so-called “hierarchy of rights” in

7
which Costa Rica’s rights are subordinated to those of Nicaragua . But, with respect, that misses

the point. What Nicaragua seeks is recognition and full expression of the Article VI rights of both

Parties, including her own express right to exclus ively exercise the power of “dominio” and “sumo

imperio” over the river. To deny Nicaragua th e police power to regulate navigation would be to

diminish her sovereignty, her summum imperium, which the Treaty has given to her exclusively. In

5
Francisco de Paula Mellado, Enciclopedia Moderna: Diccionario Universal de Literatura, Ciencias, Artes,
Agricultura, Industria, y Comercio, Tomo 32 (Madrid, 1855), p. 513, available at http://books.google.com/books?id=
3qfK1Adqlm8C&pg=RA3-PA508-IA1&dq=Mellado+Enciclopedia+moderna+imperium+summum&lr=lang_es&num=
30&as_brr=0&as_pt=ALLTYPES&ei=WACrSdLFNoPWMJze5M0I (Original Spanish text: “Segun ellos [los escritores
eminentes del siglo pasado], el estado que designaban con los nombres genéricos civitas y republica, y fuese monárquico,
aristocrático ó democrático su gobierno, una vez constituido no está sujeto á ninguna persona, ni á ningun otro estado;
puede hacer libremente cuanto sea necesario para su conervacion, sin que nadie tenga derecho á impedirselo ni á

residenciarle por el ejercicio de sus derechos, siendo justiciable para Dios, pero de ningun modo para los hombres. Esto
es lo que se llamaba imperium summum.”)
6MCR, para. 4.06.

7CR 2009/3, p. 22, paras. 2-6; p. 33, para. 33. - 12 -

effect, this would establish the very hierarchy of rights that Professor Caflisch says is unacceptable,

except in the opposite direction; it would subor dinate Nicaragua’s sovereignty over the river to

CostaRica’s right of navigation. By contr ast, recognizing Nicaragua’s sovereign right of

regulation does not diminish CostaRica’s Treaty rights, provided that Nicaragua exercises her

power to regulate navigation in a reasonable, non-arbitrary and non-discriminatory manner. To

state the matter succinctly, the only way to give proper recognition and complete expression to the

rights of both Parties is to acknowledge Nicaragua ’s right to regulate navigation on a river over

which she is the unchallenged and exclusive sovere ign, subject to the proviso that she may not

deny CostaRica’s right of free navigation “con objetos de comercio” by imposing upon her any

requirements that are unreasonable, arbitrary or discriminatory.

B. Costa Rica’s right to “free” navigation is not exempt from regulation by Nicaragua

14. I come now to my second point, which is that there is no inherent contradiction, in

doctrine or practice between Nicaragua’s right to regulate navigation as the sovereign power over

the river, and CostaRica’s right under the 1858Treaty to freedom of navigation “con objetos de

comercio”. My esteemed colleague and friend, Ian Brownlie, addressed this subject yesterday, and

I will not go over ground he has already covered; however, I will cite some additional authorities

for the purpose of further disproving Costa Rica’s argument that her right to freedom of navigation

“con objetos de comercio” necessarily excludes or negates Nicaragua’s pow er to regulate that

navigation. The sources are clear: there is nothi ng incompatible between navigation that is “free”

and regulation of that navigation. In fact, this is the norm in State practice. While

ProfessorCaflisch insisted several times that CostaRica’s right of free navigation necessarily

renders any attempt by Nicaragua to regulate it unlawfu l, he did not explain why this must be so.

The relevant authorities are to the contrary. They confirm that the right of a State to “free”

navigation does not entitle it to escape or avoid regulation ⎯ reasonable regulation ⎯ by the State

that is sovereign over the watercourse.

15. I should mention that I invoke these authorities not to argue that any of them has the

force of law or is otherwise directly applicable in this case which, both Parties agree, turns on the

interpretation to be given to the terms of the Treaty of 1858 and the Cleveland Award. Instead, - 13 -

their relevance lies in disproving the core premise of Costa Rica’s argument: that navigation that is

“free” is, by definition, exempt from all regulation.

16. I start with a reference drawn from the fre quently cited treatise by Professors Lowe and

Churchill, The Law of the Sea , which captures the point succi nctly. In a section describing

navigation on a State’s internal waters, the authors write:

“Treaties or unilateral declarations allowing free navigation, subject always to
regulations imposed by riparian States, have at various times been made in respect of
many major rivers around the world and a multilateral treaty to this effect ⎯ the

Barcelona Convention on the Regime of Navigable Waterways of International
Concern ⎯ was concluded in 1921, although it has not been widely ratified.” 8

17. The Barcelona Convention is, indeed, a good example 9. Article3 of the Statute on the

Regime of Navigable Waterways of International C oncern, which is annexed to and made part of

the Convention, creates a right of “free exercise of navigation” 10. Article 6 then provides that each

of the Contracting States nevertheless mainta ins its existing rights regarding the navigable

waterways under its sovereignty:

“to enact the stipulations and to take the measures necessary for policing the territory

and for applying the laws and regulations relating to customs, public health,
precautions against the diseases of animals and plants, emigration or immigration, and
to the import or export of prohibited goods, it being understood that such stipulations

and measures must be reasonable, must be applied on a footing of absolute equality
between the nationals, property and flags of any one of the Contracting States,
including the State which is their author, and must not without good reason impede the

freedom of navigation”.

18. This is but one of many examples that coul d be given that the right to the “free exercise

of navigation” does not exclude regulation by the State that is sovereign over the watercourse,

provided that the pertinent regulations are both r easonable and non-discriminatory, and applicable

with equal force to the State promulgating the regulations. The principle was already

well-established in the nineteenth century. The Resolution of Heidelberg for example, adopted by

the Institut du Droit International, in 1887, provided in Article3 that: “The navigation on the

whole course of international rivers, from the point where each of them becomes navigable, to the

8
R. R. Churchill & A. V. Lowe, The Law of the Sea (1983), p. 48.
9Barcelona Convention, availabl e at, http://www.fao.org/DOCREP/005/W9549E/w9549e02.htm#bm02.2 (last
visited 26 February 2009).

10Art.3: “Subject to the provisions contained in Article s5 and 17, each of the Contracting States shall accord
free exercise of navigation to the vessflying the flag of any one of theher Contracting States on those parts of
navigable waterways specified above which may be situated under its sovereignty or authority.” - 14 -

11
sea, is entirely free, and cannot, as regards commerce, be forbidden to any flags.” At the same

time, Article 20 provided for the collection of customs duties by the State with sovereignty over the

waters, Article23 provided for quarantine and sanita ry controls “by the initiative of the riparian

States”, and Article30 provided for a riparian Co mmission “to elaborate the regulations for river

12
police” . The 1936 Montreux Convention, which remains in force and governs navigation through

Turkish waters in the Bosporus and the Dardanell es, provides in Article I: “The High Contracting

Parties recognize and affirm the principle of freedom of transit and freedom of navigation by sea in

13
the Straits.” That sentence is followed immediately by this one: “The exercise of this freedom ⎯

the exercise of this freedom ⎯ shall henceforth be regulated by the provisions of the present

14
Convention.” No contradiction is perceived between the exercise of the freedom of navigation

and its regulation.

19. The International Law Association’s 2004 revisions to the 1966 Helsinki Rules on

International Water Resources (known as the “Berlin Rules”) are a recent affirmation of the same

principle: that freedom of navigation does not mean freedom from reasonable regulation.

According to Article 43 (1) of the Berlin Rules:

“Subject to the limitations or qualificati ons in this Chapter, each riparian State
is entitled to freedom of navigation on th e entire watercourse to which they are
15
riparian on a basis of equality and nondiscrimination.”

Then, Article 45, which is captioned “Regulating Navigation”, states:

“In order to achieve good order in the navigable portion of a watercourse within

its jurisdiction, a riparian State may regulate, limit, or suspend navigation, as
appropriate for the purposes of protection of public safety, health, or the environment,
over that portion of the watercourse within its jurisdiction, provided the State does not

discriminate against the shipping of another riparian State and does not unreasonably
interfere with the enjoyment of the rights of freedom of navigation . . .” 16

11
Resolution of Heidelberg, Art.3. English translation in Kaeckenbeeck, International Rivers: A Monograph
Based on Diplomatic Documents (1920), pp. 46-58.
12
Ibid.
13Montreux Convention Regarding the Regime of the Turkish Straits (1936), Art. I.

14Ibid.

15International Law Association, Berlin Rules on Water Resources Law (2004), available at
http://www.waterlaw.org/documents/intldocs/ILA_Berlin_Rules-2004.pdf.
16
Ibid. - 15 -

20. It is true that the instruments I have just discussed, which resulted from lengthy processes

of multilateral negotiation or detailed discussi on by learned bodies, provide expressly for

regulation of navigation by the sovereign, as well as freedom of navigation for other States. It is

also true that the 1858Treaty between Nicara gua and CostaRica does not explicitly mention

regulation. But it says all it needs to say to fully endow Nicaragua with the power to regulate

navigation on the SanJuan River, when it provides Nicaragua exclusively with dominion and

“sumo imperio”, summum imperium , over the river. By this language, Nicaragua alone is

empowered to exercise the functions of a State with regard to the river. Those functions

necessarily include the exercise of her police power to regulate activities on the river, including

navigation, to ensure safety on the river, to prev ent criminal trafficking in drugs or weapons, to

prevent illegal immigration, and of course to protect the natural environment and prevent pollution

of the river and adjacent shore area. The instruments, resolutions, and rules I have just discussed

demonstrate that there is nothing inconsistent in recognizing a State’s authority to regulate

navigation in her sovereign waters ⎯ even in cases, unlike this one, involving international rivers

that flow through the sovereign territory of more than one State –– and the right of other States to

enjoy freedom of navigation in the same waters. The inconsistency only arises if the sovereign

attempts to regulate navigation in an unreasonable, arbitrary or discriminatory manner, and thereby

renders nugatory the right of free navigation en joyed by neighbouring States. As I will now

discuss, this is not the case with the regulations adopted by Nicaragua.

C. Nicaragua’s regulations are reasonable and necessary to protect important State interests;
they are neither arbitrary nor discriminatory

21. I come now to the third and final part of my presentation, in which I address the

reasonableness of Nicaragua’s regulations pertaining to the San Juan River. Nicaragua submits that

her regulations are indeed reasonable, that they fu rther legitimate and important national interests,

and they are not arbitrary or discriminatory in any way. As such, they do not violate Costa Rica’s

navigation rights under the 1858 Treaty.

22. The evidence shows, the ev idence shows, that the laws and regulations adopted by

Nicaragua with regard to the San Juan River promote and protect the following interests: first, the

preservation of the natural environment, including endangered animal and plant species, and the - 16 -

prevention of pollution; second, the control and prevention of crime, especially the illegal

poaching of animals and trees from protected forests and waters, and the interdiction of trafficking

in drugs and arms; third, the promotion of navigational safety on a river that is notoriously difficult

and at times extremely dangerous to navigate, especially after nightfall; fourth, the control of

borders and immigration; and fifth the manifestation and preservati on of Nicaragua’s sovereignty

over the river.

23. It cannot be disputed that all of these are legitimate and important national and, in some

cases, international interests. They are also preci sely the public interests that sovereign States are

entitled to promote and protect by reasonable regul ation of navigation in their sovereign waters,

without transgressing the rights of free navigation afforded to other States. Article6 of the

Barcelona Statute and Article45 of the Berlin Ru les, from which I read earlier, for example, list

these specific interests among those justifying a State’s regulation of navigation even as those

instruments provide the right of freedom of navigation.

24. In this case, CostaRica challenges five pa rticular exercises of Nicaragua’s regulatory

power. Nicaragua has already demonstrated in her written pleadings that all five of these exercises

of her police power are reasonable, and that th ey are not arbitrary or discriminatory against

CostaRica. For this reason, I will only summarize this evidence, so that I may focus more on

responding to the criticisms voiced by Costa Rica’s representatives at these oral proceedings.

(a) The requirement to stop and register

25. First, Costa Rica challenges Nicaragua’s requirement that all vessels stop and register at

Nicaraguan border posts upon entering and exiting the San Juan River. This regulation applies to
17
all vessels, including Nicaraguan vessels . It requires boat operators to stop at the first Nicaraguan

security post that they pass and identify themselves, their passengers and their cargoes. That is all.

No fees or tolls are charged by Nicaragua for ente ring or exiting the river. Nicaragua promulgated

this regulation in order to ensure that the river is used only for lawful purposes, and in particular to

ensure that it is used in a manner consistent with environmental protection and preservation.

17
See Rejoinder of Nicaragua (RN), paras. 4.61, 4.71, 4.80. - 17 -

26. In her written pleadings, Nicaragua presen ted extensive evidence, none of which has

been disputed by Costa Rica, that the San Juan River itself, and the Nicaraguan shore adjacent to it,

are extremely important and gravely threatened natural preserves 18. Since 1990, when peace

returned to the area, Nicaragua has dedicated herself to the protection of three extensive botanic

and wildlife preserves on or adjacent to the SanJuan: (1)the Indio Maíz Biological Reserve;

(2)the SanJuan River Wildlife Refuge; and (3)the SanJuan River-Nicaragua Biosphere

Reserve 19. A sketch-map is included in your judges’ folder, and projected on the screen in front of

you and behind me is that map.

27. The Indio Maíz Biological Reserve was first created in 1990 and included the entire

SanJuan River. It now encompasses more than 3,000sqkm 20. In 1999, the SanJuan Wildlife

Refuge, made up of the river itself and a 2 km strip along the Nicaraguan bank, was carved out of

21
the Indio Maíz Reserve and constituted as a separate reserve . The San Juan Wildlife Refuge has

since been designated a wetland of internati onal importance under the Ramsar Convention 22.

In2003, Unesco’s Man and the Biosphere Progr amme designated both the SanJuan Wildlife

Refuge and the Indio Maíz Biological Reserve as part of the greater international biosphere reserve

known as the San Juan River-Nicaragua Biosphere Reserve which covers more than

23
18,000 sq km ⎯ or fully 14 per cent of Nicaragua’s entire territory . These areas are home to an

impressive, and unfortunately in many cases, endangered, diversity of flora and fauna, as described

in detail in Nicaragua’s Rejoinder 24.

28. The evidence shows that Nicaragua has invested major resources in protecting these

particular reserves. The Nicaraguan Ministry of Environment and Natural Resources has

established four posts along the Nicaraguan bank of the river opposite CostaRica, in addition to

25
inland posts scattered throughout the Indio Maíz Reserve . The distance between these posts can

18See Counter-Memorial of Nicaragua (CMN), paras. 1.1.18-1.1.25; RN, pp. 179-197.
19
See CMN, Vol. II, Anns. 59-61; RN, Vol. II, Anns. 39, 44-45.
20
See RN, paras. 4.37-4.45; CMN, Vol. II, Ann. 59; RN, Vol. II, Ann. 47.
21
See RN, para. 4.40; CMN, Vol. II, Ann. 60.
22See RN, para. 4.41; ibid. Vol. II, Ann. 44.

23See ibid., paras. 4.44-4.45; ibid., Vol. II, Ann. 39.

24See ibid., paras. 4.39-4.43, 4.51-4.59.
25
See ibid., paras. 4.49-4.50. - 18 -

be up to 40 km, which makes it extraordinarily di fficult to monitor activities along the river or the

adjacent shore area. The challenge is compounded by the fact that illegal loggers and poachers

who operate in the area are often armed. As a result, the Environment Ministry and the Nicaraguan

26
army have joined efforts to co-operate in the task of protecting the river .

29. The main threats to the flora and fauna of the river and its shore come from people, and

most of the people who threaten the protected sp ecies come from the Costa Rican side. This is a

proven fact, and it is not an accusation against Costa Rica or her people. The simple truth is that

the people who violate the protected areas for illicit purposes can only come from the Costa Rican

side because that is where people live. Nicaragua does not allow any settlements on her side of the

river where the protected areas are, and it strictly limits and regulates even temporary entry into the

27
reserves by any person . Projected before you, and included in your judges’ folder , is a

sketch-map prepared by Costa Rica ⎯ not Nicaragua ⎯, prepared by Costa Rica, and included in

her Memorial, showing the location of the settlements on her bank of the river across, directly

across, from Nicaragua’s protected areas. As se t forth in Nicaragua’s Re joinder, illegal logging,

illegal hunting and fishing, and illegal poaching of rare and endangered animals in the river or on

the adjacent shore by local residents of Costa Rica are serious, on-going problems that require

constant vigilance 28. My friend Professor Kohen told the Court on Tuesday that this simply cannot

be true because, if it were, Nicaragua would have presented evidence of arrests or prosecutions of

these persons, and she did not. “Not one case”, Professor Kohen intoned with some emphasis 29. In

fact, Nicaragua did present this evidence, and we respectfully refer ProfessorKohen, who must

have overlooked it, and the Court, which we trust will not, to Anne x 43 of Nicaragua’s Rejoinder,

which is the criminal complaint filed by Nicaragua’s Public Prosecutor against 20poachers

30
“originating from the sister Republic of Costa Rica” .

30. There are no bridges across the river. Th e only way to get from the Costa Rican side to

the Nicaraguan side is by navigating across the rive r. Similarly, because there are no roads on the

26See ibid., para. 4.50; ibid., Vol. II, Ann. 3.
27
See RN, para. 4.60.
28
See RN, paras. 4.51-4.60.
29CR 2009/3, p. 42, para. 32.

30RN, Vol. II, Ann. 43. - 19 -

Nicaraguan side, the only way to access the reserves from there is also by bo at. By requiring all

persons ⎯ Nicaraguans as well as CostaRicans ⎯ who enter the river to stop and register,

Nicaragua is able to monitor traffic, and to c ontrol access to the reserves, including the river itself,

31
and thereby protect them . By requiring vessel operators to register their boats and their

passengers upon entering and exiting the river, Nicaragua can assure that all who enter the river

also leave it, and that no one remains behind unlaw fully in any of the densely forested protected

areas, where he could easily fell trees or capture or kill rare animals without fear of detection.

31. Now unfortunately both ProfessorsKohe n and Caflisch were rather sarcastic in

describing what they called Nicaragua’s “sudden” concern for the environment 32. Professor Kohen

33
called it a “last minute argument” that “suddenly appeared in the Rejoinder” . In fact, Nicaragua

cited environmental protection of the SanJuan Ri ver and its environs as a major concern in her

Counter-Memorial, at pages 14 through 16. And, as the evidence shows, Nicaragua has been

continuously protecting the SanJuan and the adjacent shore area as endangered natural preserves

since at least 1990. While they complain that Nicaragua supplied extensive additional evidence in

her Rejoinder, which she did, they offer nothing to undermine or refute that evidence; their main

complaint is about its timing, even though they have now had an opportunity to study and respond

to it for more than eight months. To dism iss such evidence on grounds of its supposed

“suddenness” is a way to sweep away unfavourable facts when there is no other defence against

them.

32. The requirement to stop and register also serves Nicaragua’s interests in preventing

criminal activity other than environmental cr imes. Aside from illegal logging and poaching of

animals, common criminal activities on the river include arms and drug trafficking. Having to stop

and register upon entering and exiting the river h as an obvious deterrent effect on these activities.

The requirement is especially important given the geography of this river, which winds its way

through 140km of remote territory that is e ither heavily vegetated on the Nicaraguan side or

intermittently populated on the CostaRican side. Especially since Nicaragua’s checkpoints are

3See RN, para. 4.61.
32
See CR 2009/3, p. 25, para. 10; p. 35, para. 4; p. 42, para. 35; p. 43, para. 37.
3CR 2009/3, p. 35, para. 4; p. 42, para. 35; p. 43, para. 37. - 20 -

widely spread out, it is only by keeping track of vessels as they enter and leave the river that

Nicaraguan authorities can effectively protect against unlawful activity.

33. Professor Caflisch cavalierly dismisses this justification for the regulation on the ground

that “criminals do not turn up at Nicaraguan army posts prior to perpetrating crimes” 34. But that is

precisely the point. The requirement that all vessels stop and register at one of these posts upon

entering the river discourages would-be criminals fr om turning up and having to register; were

they to attempt to navigate past the post wit hout stopping, they would be spotted, pursued and

detained.

(b)Departure clearance certificates

34. Second, Costa Rica challenges the requirement to obtain a departure clearance certificate.

This requirement serves Nicaragua’s interest in assuring navigational safety on the San Juan River,

as well as her interests in environmental protection and criminal law enforcement. The issuance of

departure clearance certificates by riparian or coastal States is a common practice worldwide.

Nicaragua is no exception. Neither is Costa Rica. In both States, as in many others, vessels must

be inspected to ensure their seaworthiness, and their compliance with anti-pollution requirements.

When vessels stop at Nicaraguan security posts to register their entry into the river, they are

inspected by the authorities there to ensure that they are sufficiently seaworthy to safely navigate

the river, and that they are free of fuel leaks th at might pollute the waters. The inspection also

ensures that no vessels are loaded with illegal cargo, such as protected plants or animals, including

fish, illegally taken from Nicaragua’s reserves, or drugs or firearms. These are legitimate public

interests. And in fact, prior to filing this case CostaRica expressly approved of Nicaragua’s

practice in this regard. This is reflected in the Final Minutes of a 1997 meeting of the Binational

Nicaragua-CostaRica Commission, located in your j udges’ folder and projected in front of you.

These Minutes state:

“Faced with the problem presented by the Costa Rican delegation regarding the
existence of sites that require the presen ce of authorities with competency in the
matter, it was agreed that Nicaragua will make efforts to establish posts at determined

sites, so as to extend coverage in the fight against this crime . . .

34
CR 2009/3, p. 28, para. 19. - 21 -

With respect to the movement of vessel s, it was considered necessary that they
navigate only if duly registered by the posts that issue corresponding navigation
certificates; in this case the posts at San Juan del Norte, San Carlos and Sarapiquí.” 35

ProfessorCaflisch attempts to dismiss this agreement on the ground that CostaRica approved of

Nicaragua’s registration and departure clearance requirements only because she considered them

36
necessary to prevent drug trafficking . Guilty as charged. Even if he is correct, this still proves

Nicaragua’s point: that CostaRica herself agreed that there was good reason for both the

registration and departure clearance requirements imposed by Nicaragua, and that she approved of

them on that basis.

35. ProfessorCaflisch and ProfessorKohen co mplain about the small charge Nicaragua

collects to cover her costs of inspection. Boat operators are charged US$5 for this service. The

charge applies to all nationalities, including Nicaraguans 37. There is an exception, however, for

local Costa Rican residents who live on the right bank of the river. Strictly as a courtesy to these

CostaRican neighbours, Nicaragua regularly issu es them departure clearance certificates free of

38
charge .

36. The evidence before you does not support Costa Rica’s claim that the departure clearance

certification process infringes on her navigation ri ghts under the 1858Treaty. CostaRica has

introduced no evidence of any ki nd that any of her vessels has ever been arbitrarily denied a

certificate, or has been prevented from navigating on the river on this basis. Nor has CostaRica

produced evidence that the payment of the $5 fee h as discouraged navigation. It is difficult in any

event to believe that such a minimal payment w ould have such an effect, and Costa Rica makes no

such argument.

37. There is nothing in the Treaty of 1858 to prohibit Nicaragua from charging this small fee

for the service of conducting the inspection. ArticleVI, in its Spanish original and only

authoritative text, prohibits Nicaragua from requiring CostaRica to pay “impuestos”, in English,

“imposts”, or duties, on the merchandise carried by Costa Rican commercial vessels. The minimal

fee charged by Nicaragua is not, by any definition, an “impost”. It is a fee for service, in French a

35RN, Vol. II, Ann. 4.
36
See CR 2009/3, p. 29, para. 22.
37RN, paras. 4.62-4.63; 4.72; 4.81; RN, Vol. II, Ann. 48, Ann. 70, p. 436, and Ann. 77, p. 487.

38RN, paras. 4.74, 4.88, 5.110; RN, Vol. II, Anns. 70, 72, 73, 77, 78. - 22 -

“redevance”, not a tax. As such it is not prohibited by the Treaty. The instruments I discussed

earlier, including the Barcelona Statute, among othe rs, draw a clear distinction between customs

and other taxes on the one hand and fees for services on the other. Fees for services are considered

lawful exercises of a sovereign State’s police pow ers, even when customs and other taxes are

prohibited. Moreover, even with regard to impos ts, ArticleVI provides that they shall not be

collected “unless when levied by mutual consent of both Governments”. Such consent has been

given numerous times since 1858, in tax and cust oms treaties between the two States, and in

regional treaties, including the Central American Uniform Customs Code 39. ProfessorCaflisch

impugns Nicaragua’s motives. He says “the objective of these [departure clearance] certificates is

not one of promoting safety but one of levying a tax” 40. He is, of course, entitled to his opinions.

But this one is contradicted by all the evidence.

38. ProfessorKohen claims that Nicaragua has violated her obligation under ArticleVI,

which is also an obligation of CostaRica, to permit the vessels of both countries “to land

indiscriminately on either side of the river, at the portion thereof where the navigation is

common” 41. The landing right that is provided is for CostaRican vessels engaged in navigation

under Article VI, that is, navigation “con objetos de comercio”. The only place on the Nicaraguan

side where commerce can be conducted is SanJuan del Norte, because it is the only Nicaraguan

settlement, and CostaRican vessels have always been and remain free to land there. There is no

evidence that they have ever been prevented from landing, and Professor Kohen cites none. Two

additional points could be made in response to ProfessorKohen, although no more is required.

Under Article VI, indiscriminate landing rights are linked to the absence of imposts. But imposts

are no longer absent, by mutual agreement. U nder current arrangements, landing is permitted by

both States only where there are customs or border posts. If it were otherwise, smugglers could

invoke indiscriminate landing rights to avoid payment of duties by landing where there are no

customs or border facilities. And, in fact, neither CostaRica nor Nicaragua really understands

Article VI to require indiscriminate landing rights for the other’s nationals. As I will discuss in my

39
Central American Uniform Customs Code [Código Aduanero Uniforme Centroamericano (CAUCA)],
13 Dec. 1963. Published in La Gaceta of Nicaragua No. 339, 18 Feb. 1966.
40
CR 2009/3, p. 29, para. 23.
4Costa Rica-Nicaragua Treaty of Limits (Cañas-Jerez), 15 Apr. 1858, Art. VI. MCR, Vol. II, Ann. 7 (c). - 23 -

next speech, CostaRica does not allow Nicaraguan boats to land indiscriminately on her bank;

instead, she arrests the passengers as illegal aliens.

(c) The prohibition on navigation after nightfall

39. Third, CostaRica challenges Nicaragua’s prohibition of navigation on the river after

nightfall. Nicaragua makes exceptions, of course, for cases of medical and other emergency. The

most important reason for this re gulation is navigational safety. The evidence shows that it is not

safe to navigate on this river after dark. Very few of the boats that transit the river have even the

42
most rudimentary navigation lights . Not only can they not see the water in front of them, but

other boats cannot see them, risking collision. Noct urnal navigation is par ticularly dangerous in

parts of the river where the waters are shallow, and boats frequently run aground on the numerous

sand bars that are invisible at night. The wide range of hazards includes rapids, many fallen trees

and yes, even crocodiles 43. None of this evidence is disputed by CostaRica. ProfessorCaflisch,

who apparently has never been to the river ⎯ as Nicaragua’s counsel have ⎯ tells us that

Nicaragua can promote the legitimate objective of navigational safety by requiring “that boats

44
travelling at night shall carry lights” . As the distinguished Agent of Nicaragua pointed out

yesterday, such a proposal could only be made by someone, well intentioned, but unfamiliar with

both the river and the extreme poverty that characterizes most of the local population. We say that,

as the sovereign, it is up to Nicaragua in any ev ent to determine what safety measures are required,

limited only by the obligation to assure that they are reasonable and not applied against Costa Rica

in an arbitrary or discriminatory manner. The prohibition on night-time navigation, given the

nature of this particular river and the specific hazards that are present, meets this test.

40. The prohibition is applied to all navigation after dark, including Nicaraguan navigation 45.

Professor Caflisch attempts to show that Nicaragua employs a double standard, allowing night-time

46
navigation for her own vessels but not those of CostaRica . To support this charge he cites a

42
RN, paras. 4.80, 4.83-4.85.
43
Ibid.
44CR 2009/3, p. 32, para. 26 (v).

45RN, para. 4.65.

46CR 2009/3, p. 31, para. 26 (iv). - 24 -

timetable for a Nicaraguan ferry service that tr avels between, in his words, “Grenada and

San Carlos overnight” 47. I am afraid Professor Caflisch’s geography is a bit off. As shown in the

map on the screen in front of you and in your j udges’ folder, ferry transport between Grenada and

San Carlos traverses Lake Nicaragua, not the San Juan River.

(d)Border and immigration requirements

41. Fourth, Costa Rica challenges the requirement that foreign nationals who enter the river,

and thereby enter Nicaraguan territory, pass through Nicaraguan immigration facilities and the

same procedures that are followed at all other entry points into Nicaragua. Just as all non-nationals

are required to obtain a tourist card when entering Nicaragua at the Managua International Airport

or at other points of entry, so too when they enter Nicaragua via the San Juan. Depending on the

traveller’s country of origin, entry into Nicar agua may also require a valid visa. Surely

CostaRica’s right to navigate freely on the river “con objetos de comercio” does not mean she is

free to bring undocumented aliens into Nicaraguan territory at her pleasure.

42. In practice, the visa requirement affects ve ry few of the tourists who enter Nicaragua on

CostaRican tour boats. The undisputed facts, compiled from Nicaragua’s immigration records,

show that almost all of the tourists on these boats are from the United States of America, Canada,

the European Union or Australia, none of whom are required to have visas to enter Nicaragua 48.

The evidence also shows that, as a courtesy extended by Nicaragua, local Costa Rican residents and

operators of Costa Rican commercial vessels are perm itted to transit the river without tourist cards

or visas 49.

43. The Court needs no reminding that visa and tourist card requirements are common

throughout the world, as a means by which States ex ercise their inherent right to regulate the entry

of foreign nationals into their territory and prot ect their borders. CostaRica complains about the

fees associated with these requirements. This is a difficult argument for Costa Rica to sustain, in

light of the near universal practice of States to charge foreign nationals for the issuance of visas and

tourist cards. Nicaragua charges CostaRican nationa ls, other than local riparians, $20 for a visa,

47
Ibid, footnote 91.
48
RN, paras. 4.33, 4.90; RN, Vol. II, Ann. 71.
49RN, para. 4.88-4.89; RN, Vol. II, Anns. 70, 73, and 78. - 25 -

about the same amount that CostaRica charges Ni caraguans who apply for a CostaRican visa.

The charge for a tourist card is $5. Immigration processing, including both entry and exit, amounts

to $4. Has CostaRica really brought her case to this great Court over the grand sum of $9 per

tourist, which is no more than it costs to take a guided tour of the Peace Palace? If so, the evidence

is against her. CostaRica has not produced evidence of a single case of a tourist who was

discouraged from travelling to the San Juan by the cost of Nicaragua’s tourist card and immigration

processing. These are not, to quote ProfessorKohen, “transit charges” for using the river to

navigate between points in CostaRica, although hi s characterization is quite revealing of an

50
underlying difference between the Parties . What ProfessorKohen, and more importantly,

CostaRica, ignore, or refuse to accep t, is that the river is part of Nicaragua’s sovereign territory.

To enter it is to enter Nicaragua. Nicara gua has the right to apply her non-burdensome

immigration regulations.

44. It is worth emphasizing that there is no evidence to support Costa Rica’s claim that any

of Nicaragua’s regulations, including her immigration requirements, impose a burden on her tourist

industry sufficient to cause a decline in tourist traffic 51. Nowhere has CostaRica produced any

actual data, as opposed to conjecture, to support her assertion. The only hard evidence before the

Court comes instead from Nicaragua’s immigrati on records, and it shows the opposite of what

CostaRica contends. In particular, the evidence demonstrates that between 1998 ⎯ which is the

year Costa Rica says Nicaragua began violating her rights in a systematic way ⎯ and 2004, the last

full year before these proceedings were commenced, the number of tourists travelling per year on

the SanJuan in CostaRican tour vessels grew from 711 in 1998 to 2,590 in 2004 52. Nicaragua

respectfully submits that it is impossible to b ase on these figures an argument that her regulations

have adversely affected CostaRica’s tourism excu rsions on the SanJuan, even if that kind of

navigation could rightly be included in the definition of navigation “con objetos de comercio”.

50
CR 2009/3, p. 37, para. 17.
51
See Reply of Costa Rica (RCR), para. 4.12 (iii).
5See RN, para. 4.33, table 1; RN, Vol. II, Ann. 71. - 26 -

(e) The requirement to fly the Nicaraguan flag

45. Fifth and finally, CostaRica complains about the requi rement that larger boats fly the

Nicaraguan flag while navigating the SanJuan. This too is an appropr iate and non-burdensome

incident of Nicaragua’s exclusive summum imperium over the river. The requirement only applies

to those vessels that have masts or turrets at th e stern, a distinction which renders the regulation

inapplicable to the vast majority of Costa Rican boats that use the river, which are almost all small

wooden “pangas”, or simple boats with a small out board motor, which have no means to display

flags 5.

46. The expectation that larger vessels will fly her flag while navigating on her waters, in a

minimal gesture of respect for Nicaragua’s sovereignty, is a matter of international practice, at least

in the territorial sea54. Nicaragua sees no reason it may not require a fortiori the same courtesy on

her sovereign internal waters, especially as Nicar agua permits CostaRican vessels to continue

flying the CostaRican flag alongside Nicaragua’s 55. ProfessorCaflisch, though he objects to the

regulation, admits that “there may also be a practice, inspired by international courtesy, to show

the flag of the country whose waters are being navigated in” 56. For Nicaragua, as the sovereign

over these waters, she has a right to insist on this courtesy. In terms of the evidence before you,

CostaRica has not identified a single incident in which Nicaraguan authorities have prevented a

CostaRican vessel from navigating on the SanJuan because of a failure or refusal to display the

Nicaraguan flag. There is no serious argument that this regulation has done anything to impede

Costa Rican navigation on the San Juan River.

47. Mr.President, Members of the Court, I have now addressed each of the five sovereign

exercises of Nicaragua’s police power that CostaRica finds objectionable. I respectfully submit

that the Treaty of 1858 empowers Nicaragua to regulate navigation on the San Juan River, provided

she does so reasonably, and the evidence demo nstrates, indeed it leaves no doubt of the

reasonableness of her exercise of this right, as well as the absence of any violation of Costa Rica’s

right to enjoy free navigation “con objetos de comercio”.

53See RN, para. 4.92.
54
See CMN, para. 5.3.3; RN, para. 4.93.
55See RN, para. 4.93; RN, Ann. 77, p. 488.

56CR 2009/3, p. 33, para. 30. - 27 -

48. Before concluding my presentation, I would like to say a very few words about fishing.

Nicaragua stands by her written pleadings, whic h explain why CostaRica’s fishing claim is

57
inadmissible . Having said this, however, there is no reason why fishing should be a matter of

contention between the Parties here. Nicaragua does not prohibit subsistence fishing by local

58
Costa Rican residents . While Nicaragua does not agree that th ere is a customary right to fish in

her territorial waters, she has absolutely no in tention of preventing CostaRican residents from

engaging in subsistence fishing activities. Only non-subsistence fishing, such as commercial and

sport fishing in the protected waters of the SanJuan River Wildlife Refuge, is prohibited 59. In

practice, subsistence fishing on this particular river of not too great width is conducted from the

CostaRican shore, and without interference by Ni caragua. Commercial fishing, by contrast, is

generally conducted from boats in the middle of the river, casting wide nets that trap large

quantities of fish, crustaceans and marine mamma ls. Nicaragua does not understand Costa Rica to

claim a customary right, or any other right, for her nationals to engage in commercial fishing.

49. Mr.President, Members of the Court, this brings me to the end of my presentation. I

thank you for your patience and kind attention, and I ask that you now call on

Professor McCaffrey. Thank you very much.

The PRESIDENT: I thank Mr. Reichler for his presentation. I now invite

Professor Stephen McCaffrey to take the floor.

Mr. McCAFFREY:

1. Mr. President, Members of the Court, it is an honour to appear before you today on behalf

of the Republic of Nicaragua, and a great privilege to appear before this distinguished Court again.

57
See CMN, pp. 197-204; RN, paras. 4.67-4.68.
58
See CMN, 5.1.6, 5.1.15; RN, para. 4.67; RN, Vol. II, Anns. 67, 72, 73.
5See RN, para. 4.67; RN, Vol. II, Ann. 73. - 28 -

COSTA RICA’S N AVIGATION ON THE S AN JUAN RIVER W ITH PUBLIC V ESSELS:

THE T REATY OF LIMITS AND THE C LEVELAND AWARD

Introduction

2. Mr. President, my task this morning is to address the question of navigation by Costa Rica

with public vessels, other than those of the re venue service, under the 1858Treaty of Limits and

the 1888arbitral award rendered by President Grr Cleveland. I will show that neither the

Treaty nor the arbitral award provides any foundatio n whatsoever for Costa Rica’s alleged right to

navigate on the San Juan with her public vessels for almost unlimited purposes, including to

resupply her border posts, to exchange personnel at those posts with their official equipment,

including service arms and ammunition, for “purposes of protection” as CostaRica understands

that expression, and to discharge a number of other public functions.

3. In showing that CostaRica has no surights of navigation with public vessels on the

San Juan, I will cover three points: first , Costa Rican public vessels have no right of navigation on

the San Juan under Article VI of the 1858 Trsecond, the Cleveland Award provides no basis

for the rights CostaRica claims to navigate with her public vessthird, CostaRica’s very

narrow right of protection under the ClevelaAward and her obligations of defence under

Article IV of the Treaty of Limits provide no suppor t for her alleged rights to navigate with armed

or other public vessels.

I.C OSTA RICAN PUBLIC VESSELS HAVE NO RIGHT OF NAVIGATION ON
THE SAN JUAN UNDER ARTICLE VI OF THE 1858 TREATY

4. Mr.President, beginning with my first point, contrary to the sweeping contentions of

Costa Rica, her public vessels enjoy no right of navigation on the San Juan River under Article VI

of the 1858 Treaty itself. That Article simply does not mention any right of Costa Rica to navigate

on the river with public vessels. Of course, Presi dent Cleveland interpreted the Treaty to permit

restricted navigation by CostaRicrevenue vessels. But unless CostaRica’s public vessels

navigate “con objetos de comercio”, which woul d be highly unusual, however that expression is

translated, Article VI gives them no right to operate on the San Juan.

5. And indeed, this is a point that Costa Rica seems determined to overlook. Time and again

in these hearings, counsel for Cost aRica have stated that under ArticleVI, CostaRica enjoys a - 29 -

“perpetual right of free navigation” ⎯ full stop . By thus decoupling this phrase from the rest of

the Article, CostaRica makes the “perpetual ri ght of free navigation” a free-standing right.

Obviously, this wrenching of the phrase from its textual context does great violence to the meaning

of the Article. If counsel had read on, they w ould have found that the CostaRica’s “perpetual

rights . . . of free navigation” apply only to navi gation “for the purposes of commerce”, or

navigation “con objetos de comercio”. Thus, putti ng the relevant elements of the phrase together,

the English translation submitted to President Clevel and reads: “the Republic of Costa Rica shall

have perpetual rights... of free navigation... for the purposes of commerce”. These so-called

perpetual rights thus apply only to navigation “con objetos de comercio”.

6. And incidentally, Mr.President, the Parties could not in fact have envisaged that

CostaRica’s rights of navigation would necessarily be “perpetual”. They were well aware of the

interest at the time in an in teroceanic canal making use of th e San Juan River, and both the

1858Treaty (in Articles VII and VIII) and the Cleveland Award (in paragraphs 10 and 11 of its

Third Article) contemplate such a canal. Moreover, Co sta Rica did not object to any of the transit

61
concessions and canal contracts signed by Nicaragua prior to 1858 . So, while Costa Rica might

be entitled to compensation for any injury to her “natural rights”, her perpetual right of free

navigation would effectively cease with the conversion of the river into a canal.

7. On Tuesday, counsel for CostaRica made the novel argument, apparently for the first

time, that: “Under ArticleVI CostaRican public vessels enjoy the same right of navigation for

purposes of commerce as CostaRican private vessels ⎯ there is no relevant distinction based on

62
ownership of the vessel.” He combined this surprising idea ⎯ which flies in the face not only of

reason but also of the background and context of the 1858Treaty ⎯ with one that CostaRica

invented in its written pleadings and has repeated here before the Court ⎯ namely, that

“commerce” is really “communication”. And by “communication” CostaRica does not limit

herself to the exchange of information by post, or even telephone or the Internet. Instead, as she

does with “commerce,” she redefines “communication” ⎯ in this case, to mean the sum total of all

6E.g., CR 2009/02, p. 22; CR 2009/03, pp. 8, 12, 22, 23 (twice), 26, 31, 32, 33, 34, 44, 50, 51.
61
See especially CMN, Chap. 1, Sects. 1.2.31-34 and 1.3.
6CR 2009/3, p. 8 (Crawford). - 30 -

kinds of contacts by boat between one point and another. By doing so, she renders even her

translation of “con objetos de comercio” ⎯ for purposes of commerce ⎯ completely meaningless.

The effect of CostaRica’s interpretation of Ar ticleVI, then, is to excise the expression “con

objetos de comercio” from the Article, and to permit all kinds of public vessels ⎯ presumably

except for warships ⎯ to navigate on the San Juan for any purpose whatsoever. When the

absurdity of this result is combined with Nicaragua’s “exclusive dominion and supreme control” of

the San Juan, it is obvious that the Court should reject CostaRica’s contention that her public

vessels enjoy the same right of navigation “con objetos de comercio” as her private vessels.

II. C OSTA RICA ’S RIGHT OF NAVIGATION WITH PUBLIC VESSELS
UNDER THE C LEVELAND A WARD

8. Mr.President, I turn to my second point. Perhaps sensing that an argument based on

ArticleVI alone does not hold water, counsel for CostaRica attempts to find support for broad

rights of navigation by public vessels in the Cleveland Award3. According to this argument, made

on Tuesday, President Cleveland did not address navigation by any kind of CostaRican public

vessel other than warships and revenue vessels; therefore, navigation by other kinds of public

vessels is permitted. The most obvious problem with this argument is that President Cleveland was

interpreting the 1858Treaty, which only permits na vigation on the San Juan by CostaRica “con

objetos de comercio”. His award cannot be construed to create rights that are greater than those

established by the Treaty he was interpreting.

9. What is inconvenient for CostaRica is that rights of navigation “con objetos de

comercio” ⎯ or even “for purposes of commerce” ⎯ are virtually never exercised by public

vessels, either today or in the mid-nineteenth century. Perhaps realizing this, Costa Rica then adds:
64
“This was recognized by the Second Articleof the Cleveland Award...” The Court will, of

course, by now be well aware that the Second Ar ticleof the Cleveland Award, which we have

practically examined under a microscope, says nothing at all about free navigation on the San Juan

with public vessels. Moreover, by restricting the types of public vessels that could navigate on the

SanJuan to vessels of the revenue service, and by further restricting navigation by those craft to

63
CR 2009/3, p. 10 (Crawford).
64Ibid. - 31 -

that which was “related to and connected with” navigation “con objetos de comercio” or that was

necessary to the protection thereof, President Cleveland rejected CostaRica’s request that it be

allowed to navigate with public vessels “to carry orders to the authorities of the bordering

districts”65. Yet Costa Rica is before the Court today making virtually the same request.

10. Mr.President, as we have just seen, the 1858Treaty itself said nothing about a right of

CostaRica to navigate on the river with any kind of public ship, including vessels of the revenue

service.

11. But as the Court is aware, in his award of 1888, President Cleveland ruled on the

question whether CostaRica has a right to navigate on the San Juan with its warships or other

public vessels. He said Costa Rica did not have a right to navigate on the San Juan with warships

but that she did have a right, one which he carefully circumscribed, to navigate on the river with

vessels of the revenue service. Some background on this latter righ t will help place it in its proper

context.

66
12. As Nicaragua has noted in her written pleadings , in 1886 CostaRica had in fact

navigated on the San Juan with a national st eamship carrying CostaRican armed forces.

According to a decree issued by the Government of CostaRica in March of that year, one of the

tasks of the steamship was to conduct reconnaissance at least once a week of the entire extent of the

San Juan that was navigable by CostaRica. The Nicaraguan Foreign Minister understandably

characterized this as “an outright viol ation of Nicaragua’s sovereign rights” 6, since nothing in the

1858Treaty permitted it. But CostaRica obviously had great difficulty accepting the limited

navigational rights in Nicaragua’s sovereign waters accorded her in the 1858 Treaty. She therefore

followed a strategy she has pursued ev er since the 1858 Treaty was concluded ⎯ namely, to try to

create new rights to navigate on the San Juan River (graphic SMcC-1).

13. Thus in her pleadings before President Cleveland, CostaRica quoted ArticleVI of the

Treaty then posed the following rhetorical question regarding that provision, already referred to by

my colleague Professor Pellet and shown on the screen:

65
Argument of Costa Rica, p. 155, RN, Vol. II, Ann. 5, at p. 30.
66
CMN, p. 113, para. 3.1.32, et seq.
67Ibid., p. 116, para. 3.1.37. - 32 -

“Does this mean that Costa Rica cannot under any circumstances navigate with

public vessels in the said waters, whether the said vessel is properly a man-of-war, or
simply a revenue cutter, or any other vessel intended to prevent smuggling, or to carry
orders to the authorities of the bordering districts, or for any other purpose not exactly
68
within the meaning of transportation of merchandise?”

14. This question indicates that in 1888 Co staRica presumed that she had the same

navigational rights she claims today: broad rights to navigate with public vessels “for any...

purpose not exactly within the meaning of transportation of merchandise”. And as Professor Pellet

pointed out, by the way, CostaRica in this p assage betrayed her understanding of the critical

expression, “objetos de comercio”, as meaning “merchandise”. In case there is any doubt about

how Costa Rica conceived of her navigational rights, she added: “It seems to be beyond discussion

that CostaRica can navigate in the San Juan with public vessels, which are not properly

69
men-of-war.”

15. Mr. President, President Cleveland was quite clear in answering CostaRica’s question

regarding a right to navigate with public vessels for a wide variety of purposes. The answer he

gave was “no” ⎯ subject only to one narrow exception (graphic SMcC-2).

theIn16. Second Article of his Award, President Cleveland stated that Costa Rica:

“has not the right of navigation of the river San Juan with vessels of war; but she may

navigate said river with such vessels of the revenue service as may be related to and
connected with her enjoyment of the ‘purposes of commerce’ [those are
President Cleveland’s quotes around “purposes of commerce”] accorded to her in said
70
article, or as may be necessary to the protection of said enjoyment” .

17. Thus President Cleveland rejected Cost aRica’s argument that she should have broad

rights to navigate the San Juan with public vessels for the purposes her question indicates. He said

explicitly that she did not have a right to navigate on the river with warships. By expressly

confining Costa Rica’s right to navigate on the San Juan with public ships to those revenue vessels

that were “related to and connected with” navi gation “con objetos de comercio” or “necessary to

the protection” of such navigation, President Cleveland excluded a right in Costa Rica to navigate

not only with other kinds of public vessel, but also with revenue vessels that were performing any

function other than the ones he specified. Yet CostaRica now claims a right to navigate on

68Argument of Costa Rica, p. 155; RN, Vol. II, Ann. 5, p. 30.
69
Ibid., p. 156.
70MCR, Vol. II, Ann. 16, p. 98; emphasis added. - 33 -

Nicaragua’s sovereign waters with armed and other public vessels that have nothing whatsoever to

do with customs enforcement or protection of trade.

18. Mr.President, the travaux préparatoires of President Cleveland’s Award are helpful in

understanding why he would have felt it necessar y to prohibit navigation of most kinds of

CostaRican public vessels and to impo se so many conditions on the one kind ⎯ revenue

vessels ⎯ he did permit.

71
19. As discussed in Nicaragua’s Counter-Memorial , President Cleveland asked Assistant

Secretary of State George L. Rives to prepare draft recommendations for the arbitral award. On the

question whether Costa Rican warships or other public vessels should be permitted to navigate on

the San Juan, Mr. Rives took an approach similar to that advocated by Costa Rica in the arbitration:

namely, to assimilate Costa Rica’s right to navigate with public vessels on the San Juan to the right

of public vessels of one State to navigate in the territorial sea of another State. Rives found that

coastal States “impose no restriction upon the friendly visit of foreign men-of-war in time of

72
peace . . .” . He therefore recommended that President Cleveland answer the second question put

to him, regarding the right of Costa Rica to naviga te on the San Juan with vessels of war or of the

revenue service, in the following way:

“[V]essels of war and of the revenue service belonging to CostaRica have the
same privilege[s] of navigating the river San Juan as are usually accorded in their

territorial waters by civilized nations to the public vessels of friendly powers in time
of peace, ⎯ but no other, or greater privileges.” 73

20. Mr. Rives thus recommended that the Award recognize rather broad rights of navigation

by Costa Rican public vessels on the San Juan ⎯ rights similar to those claimed by Costa Rica in

the Cleveland arbitration, and not dissimilar to th e ones she claims today. PresidentCleveland,

however, rejected Rives’s recommendation entirely (graphic SMcC-3).

21. So thoroughgoing was his disagreement with Rives that President Cleveland, in his own

hand, struck out Rives’s entire recommended answer and substituted his own, much more

74
restrictive ruling as can be seen on the screen . That is paragraph, or Article Second of his Award.

71CMN, pp. 120 et seq., paras. 3.1.46 et seq.
72
Ibid., Ann. 71.
73Ibid.

74CMN, Vol. 2, Ann. 72, pp. 258-259. - 34 -

Insight into why President Cleveland may have done this is provided by his repeated references to

the 1858Treaty in the Second Article of his Award. He doubtless had in mind that the Treaty

effected a territorial settlement in which Nicaragua ceded to Costa Rica the large district of Nicoya

in return for full sovereignty over the San Juan River. A waterway that, in so far as Costa Rica’s

navigational rights are concerned, is obviously not an international river as contended by

Costa Rica most recently in these hearings. Preside nt Cleveland’s determination to cause the least

possible impairment of Nicaragua’s sovereignty is clear from his sharp curtailment of the

navigational rights proposed by Rives for CostaRica. Thus for each of the two kinds of vessels

mentioned in the second question put to him, President Cleveland gave a markedly different answer

than had been recommended by Rives: wher e Rives would have permitted navigation by

CostaRican warships, President Cleveland found no ri ght at all to engage in such navigation;

where Rives would have similarly permitted unrestricted navigation by CostaRican revenue

vessels, President Cleveland strictly limited Costa Rica’s right to navigate with them.

22. It is further revealing to note what President Cleveland did not do. First, having

prohibited CostaRican warships, he could have allowed navigation by police and lesser military

vessels on the river. He did not. And second, ha ving responded in the negative concerning vessels

of war, President Cleveland could then have simply responded in the affirmative, in general terms,

as to vessels of the revenue service. But this he also did not do. Instead, PresidentCleveland

permitted navigation on the San Juan by such Cost a Rican vessels only when they were serving a

very specific purpose ⎯ namely, only when their navigation is “related to and connected with her

enjoyment of ‘the purposes of commerce’... or as may be necessary to the protection of said

enjoyment”. Thus, President Cleveland did not even recognize a right in Costa Rica to navigate on

the San Juan with any and all revenue vessels, wh atever the purpose of their voyage. Rather he

took pains to confine CostaRica’s right to na vigate with such vessels quite narrowly and

specifically, adding restrictions that had not been recommended by Mr. Rives.

23. Clearly, President Cleveland did not wish to negate his own ruling that CostaRica did

not have the right to navigate on the San Ju an with warships. Indeed, as acknowledged by - 35 -

75
CostaRica on Tuesday , Nicaragua had argued in her Reply in the arbitration: “Vessels of the

revenue service are akin to vessels of war. ... [T]hey are armed vessels, capable of enforcing

76
their demands by force...” This assessment was echoed by GeorgeRives in his report to

President Cleveland 77. That the two kinds of vessels may be indistinguishable is especially the

case on a relatively small river like the San Juan, on which an armed public vessel takes on even

greater proportions.

24. Because it was actually argued in the arbitration and recognized by Rives, this feature of

revenue vessels could not have been lost on President Cleveland ⎯ and CostaRica gave us

touching additional evidence of this on Tuesday, in the form of President Cleveland’s courtesies to

78
Miss Folsom . But how to prevent, or at least contain, a metamorphosis from cutter to warship?

President Cleveland’s solution was to place clear restrictions on what Costa Rican revenue vessels

could do. They could only navigate on the Sa n Juan in so far as th ey were “related to and

connected with” navigation “con objetos de comercio ” or were necessary to the protection of such

navigation. This formula all but requires a ph ysical connection between CostaRican revenue

vessels and her boats carrying “objetos de comercio ”. Certainly, without navigation “con objetos

de comercio” there is no right of navigation by CostaRican revenue vessels ⎯ and it bears

emphasis that these are the only kinds of public v essels that Costa Rica is permitted to operate on

the river.

25. In light of this history it seems safe to say that PresidentCleveland would have been

quite surprised to learn that CostaRica is now claiming sweeping rights to navigate on the

SanJuan with public vessels, including navigati on to re-supply her border posts, and to exchange

personnel at those posts with their official equipment, including service arms and ammunition.

26. Mr. President, as I recalled earlier, on Tuesday Costa Rica’s counsel argued that all that

was before President Cleveland was the permissibility of navigation by CostaRican warships and

75
CR 2009/3, p. 13 (Crawford).
76
CMN, Ann.69. Reply of the Republic of Nicaragua subm itted to H.E. Hon. President Cleveland, p. 49. See
discussion in CMN, paras. 4.2.14-15.
77Rives Report (Second), CMN, Ann. 70, p. 4.

78CR 2009/3 p. 13, para. 23 (Crawford). - 36 -

revenue vessels 79. But this argument ignores the pleadi ngs in the case I have just discussed.

Clearly, CostaRica placed the issue of broad ri ghts of navigation by public vessels before the

arbitrator, and, just as clearly, President Cleveland rejected the idea of such rights.

Mr. President, this would be a convenient tim e for me to break my presentation if you wish

to pause for coffee? Otherwise, I could go on?

The PRESIDENT: Thank you, Professor McCaffrey. I think that if your presentation is not

going to be too long, you had better continue. Thank you.

Mr. McCAFFREY: I should continue? Fine, thank you, Mr. President.

III.C OSTA R ICA S RIGHT OF PROTECTION UNDER A RTICLE VI AND HER ALLEGED RIGHT TO
DEFEND THE RIVER UNDER A RTICLE IV

27. This then brings me to my third point, which is that neither Article VI of the 1858 Treaty

as interpreted by President Cleveland nor ArticleIV of that agreement has anything at all to do

with rights of protection and defence as now cl aimed by CostaRica. In her submissions,

Costa Rica requests the Court to find that Nicaragua has violated:

“the obligation to allow Costa Rican official vessels the right to navigate the San Juan,

including for the purposes of re-supply and exchange of personnel of the border posts
along the right bank of the River with their official equipment, including service arms
and ammunition, and for the purposes of protection as established in the relevant
80
instruments, and in particular the Second article of the Cleveland Award . . .”

28. By this submission, CostaRica asks the Court to create out of whole cloth a right she

tried unsuccessfully to obtain from President Cleveland in the nineteenth century.

29. The answer to Costa Rica’s claim in this re gard is a straightforward one. As has already

been seen, PresidentCleveland carefully restrict ed what CostaRican revenue vessels could do.

Thus, the beginning and end of Costa Rica’s right to protection is navigation with such vessels of

the revenue service “as may be necessary to the protection of” navigation “con objetos de

comercio” 81. Yet Costa Rica claims a broad array of rights that are unrelated to, and unconnected

with, her navigation “con objetos de comercio”, effectively treating the San Juan as if the boundary

79CR 2009/3, p. 9 (Crawford).
80
RCR, p. 211, Submission 2 (g).
81Cleveland Award, MCR, Ann. 16, p. 98; emphasis added. - 37 -

followed the median line rather than the right bank, thus negating the quid pro quo reflected in the

1858 Treaty and, with it, Nicaragua’s sovereignty over the river. However, Costa Rica has failed to

rebut the detailed answers to her claims give n in Nicaragua’s Counter-Memorial and in her

Rejoinder.

30. Chafing under the restrictions on naviga tion with public vessels in President Cleveland’s

interpretation of ArticleVI of the 1858Treaty, CostaRica seizes upon ArticleIV, conflating the

obligation of defence under that Article with the restricted right of protection found by

President Cleveland under Article VI. Article IV refers to the obligation of the two States to “unite

in [the] defense” of the bays of San Juan del Norte and of Salinas, on the Atlantic, or Caribbean,

and Pacific ends of the border between the two c ountries. However, Article IV says nothing about

having to do this by boat. According to Article IV, this obligation is consequent upon, and closely

tied to, the fact that the two bays, as Article IV puts it, “shall be common to both Republics . . .”.

31. Costa Rica attempts to build on this slender reed an entire edifice of rights to navigate on

the river. Indeed, she argued in the Cleveland arbitr ation itself that according to ArticleIV, she

“must be permitted to maintain her vessels on the San Juan in order to guard and defend it with all
82
the efficiency within her reach” . President Cleveland did not accept this argument; CostaRica

nonetheless attempts to resurrect it in the present case.

32. The reason President Cleveland did not accept this argument is clear from the text of

Article IV on its face. After granting Costa Rica the right to unite with Nicaragua in the defence of

the bays in its first sentence, ArticleIV proceed s in its second sentence to provide for defence of

the river. Except in this case, since the river is not “common to both Republics,” Costa Rica must

participate in its defence from her bank of the ri ver, her land territory. Specifically, according to

the second sentence of Article IV, Costa Rica is obligated with respect to “the portion belonging to

her on the shores of the river San Juan” to “unite in its defense in [the] case of attack from

without . . .”. The text of this provision could not be clearer: Costa Rica has no right to unite in the

defence of the river by boat; her obligation exte nds only to “the portion belonging to her on the

shores of the river . . .”.

82
Rives Report, CMN, Vol. II, Ann. 71, p. 253; emphasis added. - 38 -

33. Mr. President, as discussed at length in Nicaragua’s written pleadings, the second report

of Assistant Secretary of State Rives confirms that CostaRica may not “defend” or “protect” the

river using public vessels. In that report, Mr. Rives, speaking of Article IV, pointed out:

“All that article requires is that CostaRica should repel foreign aggression on

the river with all the efficiency within her reach ... [and he underlined ‘within her
reach’] Costa Rica would only be bound to c ontribute to the defence of the stream by
land [he says], a mode of defence, it may be added, which seems better adapted to a
83
River of the size and character of the San Juan.”

34. Indeed, Mr. President, the San Juan River, while not of course an unimportant stream, is

hardly the Amazon, the Rhine, the Nile, or the Mississippi. Moreover, nothing in

President Cleveland’s Award disagrees with Rives’s interpretation.

35. For the foregoing reasons Nicaragua respect fully urges the Court to reject CostaRica’s

contention that Article IV of the 1858 Treaty has “implications for Costa Rica’s navigation on the

San Juan”.

36. Mr. President, even though the Parties agr ee that the scope of Costa Rica’s navigational

rights with public vessels is to be determined by reference to the 1858Treaty of Limits and the

1888 arbitral award 84, CostaRica invokes four other agreements and communiqués 85 that she

characterizes as part of the “applicable law” 86. As Nicaragua has shown, both in her

87 88
Counter-Memorial and in her Rejoinder , these instruments are not helpful to Costa Rica’s case.

In both her written and oral pleadings, CostaRica ⎯ unaccountably ⎯ seems to place most store

in the so-called Cuadra-Lizano Joint Communiqué of 30July1998 ⎯ despite the fact that this

failed arrangement in fact destroys her case. Costa Rica mistakenly ch aracterizes the communiqué

as a “conventional rule[]” 89. But however it is characterized, the reason this communiqué is so

harmful to CostaRica’s case is that it shows that CostaRica recognizes that she requires the

permission of Nicaragua to navigate on the river with public, armed vessels to resupply her border

83CMN, Vol. II, Ann. 71, p. 251; emphasis in original.
84
See, e.g., RCR, para. 1.18.
85
RCR, para. 3.81.
86
These documents are discussed in CMN, paras. 3.2.1-3.2.14.
87See ibid.

88See RN, Chap. II, Sec. II, and paras. 5.94-5.99.
89
RCR, para. 3.81. - 39 -

posts. Specifically, the communiqué would have provided that in order to navigate on the San Juan

River with public vessels for the purpose of bringing supplies and relief staff to her police posts

along the river, CostaRica’s Guardia Ci vil would have to obtain Nicaragua’s permission in each

case ⎯ in each case ⎯ and that this permission was subject always to three important conditions :

first, that requests for authorization would be ma de prior to each voyage; second, that Nicaraguan

authorities could accompany the CostaRican vessels if Nicaragua wished; and third, that the

Guardia Civil vessels would stop and report at all Nicaraguan army posts en route.

37. Counsel for Costa Rica stated on Monday th at this text establishes a perfectly acceptable

90
balance between the intere sts of the two Parties . This may well be so, but it certainly does not

support the general right for which CostaRica argues. On the contrary, the text shows that

CostaRica’s so-called “right” to engage in this navigation is entirely dependent on Nicaragua’s

authorization on a case-by-case basis. More important ly, the very fact that Costa Rica felt she had

to obtain Nicaragua’s agreement on the establishm ent of these procedures in the communiqué, and

her disappointment that they were not implemen ted, demonstrates beyond doubt that CostaRica

did not have ⎯ nor did she herself believe she had ⎯ a general right to navigate on the river with

public vessels to bring supplies and relief staff to police posts along the river. In any event, as

Nicaragua has pointed out and as noted by CostaRica on Monday, this communiqué was never

implemented.

38. CostaRica then returns to the actual appli cable law, citing four reasons for finding “a

right of navigation on the San Juan by Costa Rican public vessels carrying police with normal

arms” 9. Her first reason is that “the re-supply of [ border] posts is covere d by the right of free

92
navigation for purposes of commerce in ArticleVI of the 1858Treaty” . I have already shown

that an interpretation of ArticleVI allowing an unrestricted right to navigate with public vessels

carrying armed police would render that provision meaningless, wiping out all of

President Cleveland’s careful restrictions upon even Costa Rican revenue vessels.

90
CR 2009/2, p. 42, para. 39 (Caflisch).
91
RCR, para. 3.86.
9Ibid. - 40 -

39. Again in these hearings Costa Rica brings up the case of the ill-fated voyage of the Adela

in an attempt to show that her alleged right to navigate on the lower part of the San Juan with

93
public vessels carrying arms is s upported by subsequent practice . As Nicaragua has pointed out

in her written pleadings 94, this incident actually proves the contrary. If the CostaRican officer

believed he had the right to navigate on the lowe r San Juan with arms, why did he feel the need

to ⎯ and I quote his report ⎯ “hide in CostaRican territory the arms and ammunitions that I

95
carried” before requesting permission to proceed? Th is inconvenient but crucial fact is ignored

by Costa Rica. What the incident proves is not at all that Costa Rica had a right to navigate on the

lower San Juan with arms, but rather, simply, that CostaRica breached her obligation not to

navigate there with armed public vessels unrelated to navigation “con objetos de comercio”, and

knew she had breached it.

40. CostaRica’s second reason for finding a right of navigation on the San Juan for her

public vessels carrying armed officers is that “n avigation under ArticleVI of the 1858Treaty

96
cannot be effectively protected without the use of such boats” . But the only kind of navigation

permitted by ArticleVI is navigati on “con objetos de comercio”. Even if CostaRica were using

the San Juan to transport merchandise ⎯ which she is not 97 ⎯ the only kind of vessel she is

permitted to use to protect navigatio n “con objetos de comercio” under the Second Articleof the

Cleveland Award is a vessel of the revenue servi ce. And even these vessels may only be used to

the extent they are “necessary to the protection of” such navigation. It is obvious that Costa Rica

cannot show this if she is not navigating “con obje tos de comercio”. Even if she were, a showing

of necessity would be required, in light of PresidentCleveland’s Second Article. Except for the

restricted right of navigation by CostaRican re venue vessels, tied to navigation “con objetos de

comercio”, it is thus Nicaragua that has both the right and the responsibility to provide police

protection of navigation on the river.

93CR 2009/3, p. 16 (Crawford).

94E.g., CMN, paras. 4.2.19-4.2.23.
95
MCR, Vol. 6, Ann. 209.
96RCR, para. 3.86.

97RN, paras. 5.63 et seq. - 41 -

41. The third reason given by Costa Rica for finding a right of navigation on the San Juan for

her public vessels carrying armed police is “for the defence of the common border and the common

bays under ArticleIV of the Treaty” 98. Mr.President, I will not repeat my earlier discussion of

why it is neither permitted by ArticleIV nor nece ssary for CostaRica to navigate on the river to

defend the “common border [or] the common bays”.

42. Costa Rica’s fourth and final reason for finding a right of navigation on the San Juan for

her public vessels carrying armed police is that “it would be impossible, without adequate

re-supplying of the border posts, to prevent or deter unlawful activities in the (land) border area ⎯

smuggling, trafficking in persons. It would also be impossible to fulfil official acts such as police

99
investigations in a timely manner.” Mr. President, this is effectively an argument that needs, or

perhaps even wishes, create rights. But in this case, in light of the evidence, what CostaRica

actually seems to be saying is that it would be easier for her to perform these tasks via Nicaraguan

sovereign territory, the river, not that it would be impossible to perform them unless she were

allowed to navigate with her public vessels on the San Juan. If roads are muddy or even

non-existent, it is the responsibility of CostaRica, not Nicaragua, to maintain or construct them.

Policing the river, after all, is a function reserved to the sovereign, Nicaragua. This is not

CostaRica’s right or responsibility. Even if, purely hypothetically, it would be impossible for

Costa Rica to perform these functions without using the river, this obviously does not create a right

for her to do so. If she wished to complement th e policing of the river by Nicaragua, she would of

course be free to seek permission from Nicaragua for such navigation.

43. Costa Rica then turns to the one kind of public vessel that President Cleveland did permit

to navigate on the San Juan: vessels of th e revenue service. Seizing upon the second condition

placed by President Cleveland upon navigation by CostaRican revenue vessels, namely, that it

must be “necessary to the protection of” navigatio n “con objetos de comercio”, Costa Rica asserts

that “this clearly points to defence matters”. On the contrary, nothing could be less clear.

President Cleveland, having banned CostaRican warships from the San Juan, would hardly have

allowed Costa Rica to use revenue vessels as a kind of naval Trojan horse to permit navigation on

98
RCR, para. 3.86.
9RCR, para. 3.86. - 42 -

the river by her warships. Costa Rica simply cannot point to anything in either the 1858 Treaty or

the 1888Arbitral Award that permits navigation on the San Juan by CostaRican revenue vessels

carrying armed personnel that have nothing to do with her navigation “con objetos de comercio”.

44. Mr.President, Members of the Court, this concludes my intervention this morning. I

thank you for your courtesy, patience and kind attention and I ask that after the break you call once

again upon my colleague, Mr. Paul Reichler. Thank you very much.

The PRESIDENT: I thank Professor McCaffrey for his presentation. Before calling on

Mr. Reichler to make his presentation, the Court will have a short coffee break.

The Court adjourned from 11.45 a.m. to 11.55 a.m.

The PRESIDENT: Please be seated. I now invite Mr. Reichler to take the floor.

RMEr. HLER:

C OSTA RICA S NAVIGATION ON THE SAN J UAN R IVER WITH PUBLIC VESSELS :
THE PRACTICE OF THE PARTIES

1. Thank you again, Mr. President, Members of the Court. I am doubly honoured today, to

appear twice before this distinguished Court. However, I do promise to be shorter this time.

2. My task now is to discu ss the evidence that the Parties have placed before you on the

practice with regard to navigation by CostaRican public vessels. As ProfessorMcCaffrey

demonstrated, under the 1858 Treaty of Limits and the 1888 Cleveland Award, Costa Rica has no

right to navigate on the river w ith any public vessels other than revenue vessels, and no right to

navigate on the river even with revenue vessels unless it is related to and connected with navigation

“con objetos de comercio”.

3. Because the Treaty of 1858 and the Cleveland Award are clear as well as controlling on

these points, there really is no need for thourt to look beyond the language of these legal

instruments to discern their meaning. However, Costa Rica argues that she has rights to navigate

the SanJuan River, in public vessels other than her revenue vessels, and in particular, in police

vessels bearing arms and engaged in police func tions, and in other governmental vessels carrying

out typical governmental functions, based on what sclaims is the practice of the Parties. It is - 43 -

Costa Rica’s argument that the Parties have mutua lly manifested such consistent conduct since the

Treaty of Limits was adopted that, under the prin ciples of general international law governing the

law of treaties, their subsequent practice reflects the existence of an agreement on an interpretation

of the 1858 Treaty that would allow a general right of navigation by all Costa Rican public vessels.

Mr. President, Members of the Court, Costa Rica fails to hit her mark.

4. Put simply, Costa Rica has not produced ev idence that would establish the existence of a

mutual course of conduct by the Par ties that could be considered, as a matter of law, to reflect an

agreement on the interpretation of the 1858 Treaty. Th e evidence that is before you, especially the

evidence submitted by Costa Rica herself, actually disproves her argument about the practice of the

Parties. What this evidence shows is: first, Nicaragua has never denied or interfered with

Costa Rica’s right to navigate on the San Juan River with her revenue vessels for purposes related

to and connected with commerce. CostaRica has presented no evidence that she ever actually

sought to exercise this particular right, but, more to the point, no evidence that Nicaragua has ever

interfered with it.

5. Second, the practice of the Parties does not su stain CostaRica’s claim for a right to

navigate with police vessels or other government al vessels to carry out police or governmental

functions. In this regard, the evidence shows in particular that Nicaragua has never by her words or

her conduct acknowledged, accepted or acquiesced in a right of CostaRica to navigate on the

San Juan River with police vessels or other public vessels carrying government officials engaged in

governmental functions. To the contrary, the ev idence shows that Nicaragua did not allow any

navigation by CostaRican police or other public vessels, unless CostaRica first sought and

obtained Nicaragua’s express authorization prior to the voyage. The evidence further shows that

Costa Rica actually complied with Nicaragua’s requirements, and sought Nicaragua’s authorization

prior to her attempts to navigate on the river w ith her public vessels. And the evidence shows that

when Nicaragua refused to authorize the navigatio n, CostaRica refrained from navigating. As a

consequence, the correct conclusion to be draw n from the evidence regarding the practice of the

Parties is that it demonstrates that Costa Rica has no right to navigate on the San Juan River with

her public vessels, except in the limited circumstance of her revenue vessels navigating in a manner - 44 -

related to and connected with na vigation “con objetos de comercio”. And this limited right of

navigation has never been denied or abused by Nicaragua.

A. THE EVIDENCE REGARDING NAVIGATION BY COSTA R ICAN REVENUE VESSELS

6. Turning to the first of my two points, it is that CostaRica has not actually exercised her

right to navigate on the SanJuan River with publ ic revenue vessels, and that Nicaragua, in any

event, has never interfered with this right. It is fair to assume that if Costa Rican revenue vessels

regularly plied the waters of the SanJuan, CostaRica would have the records to prove it.

Similarly, if Nicaragua had ever interfered with this right, by for example, denying a Costa Rican

revenue vessel access to the river, it could be assu med that some official records would exist and

that Costa Rica would produce them. It is significant then, that Costa Rica has failed to present the

Court with any official documentation, or for th at matter, any other evidence, establishing either

CostaRica’s actual exercise of this right, or again more importantly, Nicaragua’s denial of it.

CostaRica’s main evidence consists of a very few contemporaneous reports from her fiscal or

revenue guards, stationed on land near the San Ju an River, between 1893 and 1909. She claims in

her written pleadings: “Reports from 1893 to 1909 refer to the substantial activities of the fiscal

100
guards in the region of the border of the San Juan.” The Court will note the lack of specificity in

the language “in the region of the border of the San Ju an”, rather than “on the San Juan”. The next

sentence is equally revealing: “Undoubtedly these fiscal guards used the San Juan to perform their

duties.”101 The use of the adverb “undoubtedly” fills the place the Court might expect to find

occupied by actual proof of the point that is proclaimed to be undoubtable. There is no such proof.

In fact, none of the reports from this period that Costa Rica presents make any reference to actual

navigation on the San Juan by her revenue vessels. As Nicaragua demonstrated in her Rejoinder, at

paragraphs5.68 to 5.70, and sketch-map8, at page256, a ll of the rivers, police posts and

communities mentioned in these reports are located within CostaRica and were accessible to the

fiscal guards from CostaRica’s own rivers, w ithout having to traverse the SanJuan.

ProfessorCrawford said on Tuesday that the evid ence showed that CostaRican revenue guards

100
MCR, para. 4.89.
10Ibid. - 45 -

reconnoitred the San Juan on a weekly basis, but he cited only to a single document in his speech

on Tuesday, and that is from 1886, and that document does not say that 102. The document to which

he referred is simply a decree by the Costa Ri can Government establishing the revenue guards and

their duties, which do pertain in part to the SanJuan; but it says nothing about their actual

103
conduct .

7. From there, the documentary evidence submitted by Costa Rica leaps all the way forward

to 1968, with no evidence of practice by her fiscal guards or revenue vessels during the intervening

period. The 1968 reports, like the earlier ones say nothing, demonstrating actual navigation by

fiscal guards or revenue vessels on the San Juan 104.

8. Subsequent to these inconsequential docum ents from 1968, there are no other public or

official records submitted by Costa Rica regardi ng the activities of her fiscal guards on or near the

San Juan River. Thus, for the entire period from the 1858 Treaty to the present, there is really no

official report or record demonstrating any actual physical navigation on the SanJuan by any

revenue vessel of Costa Rica.

9. Now, there is an explanation for this evidentiary void. The international trade that

CostaRica hoped to conduct via the SanJuan at the time of the 1858Treaty never materialized.

This was explained in considerable detail yesterday by my esteemed colleagues

Professor Remiro Brotóns and Professor Alain Pellet. For the reasons described by my dear

friends, CostaRican trade on the river became so insignificant that CostaRi ca eventually closed

down her customs posts along the SanJuan, and even closed down the customs posts at the

105
headwaters of the internal rivers that connected to the SanJuan . Thus, while CostaRica most

definitely retained, and retains to this day, th e right to navigate on the SanJuan with revenue

vessels related to and connected with navigation “con objetos de comercio”, in fact she has found

no or extremely little need to exerci se this right because there simply has been no CostaRican

navigation “con objetos de comercio” of any consequence, and thus nothing that has required the

10See CR, 2009/3, p. 17, para. 33.
103
MCR, Ann. 206, Art. 5.
10See RN, para. 5.72.

10See RN, paras. 3.53, 4.10-4.11; RN, Vol. II, Ann. 50. - 46 -

presence of customs posts or the deployment of he r revenue vessels to the San Juan. CostaRica

cannot blame her failure to exercise this right on Nicaragua. There is no evidence to support such

an accusation. In particular, there is no evid ence that Nicaragua discouraged CostaRica from

exercising her right, or violated it in any way. To the contrary, even if CostaRica were able to

present evidence of some actual use of the river by her revenue vessels, Nicaragua has always

acknowledged and respected this treaty right, and continues to do so. There has been no violation.

B. T HE EVIDENCE REGARDING NAVIGATION BY C OSTA R ICAN POLICE VESSELS

10 .The second of my two points on the practice of the Parties concerns the evidence offered

by Costa Rica of her navigation on the San Juan with public vessels other than revenue vessels, and

for purposes unrelated and unconnected to “objetos de comercio”.

11. CostaRica has presented only two official records showing navigation by her police

vessels on the SanJuan. The earliest of these is from May of 1992. That is, 134years after the

1858 Treaty entered into force. There are no official records of any such practice during those first

134years. Professor Crawford referred to the May1992 report on Tuesday. He said that the

document, and I quote him, “indicates that it was usual for them to patrol the San Juan River” 10.

Actually, this is a bit of an overstatement. Once every 134years should not count as “usual”.

What the document actually describes is a single Costa Rican patrolling ex ercise on the SanJuan,

107
in a single abbreviated sentence . There is no indication of the purpose of the exercise, or

whether prior authorization was sought or given by Nicaragua.

12. Costa Rica has submitted only one other document from her official records showing that

her police vessels navigated on the SanJuan River. This is a record kept by the senior police

official at Costa Rica’s Sarapiquí border post, and it covers the period 1994 to 1998 108. It is rather

remarkable that CostaRica claims a right based on the prolonged, consis tent and uninterrupted

practice of the Parties, but can do no better than produce a single public record, covering only a

four-year period (save for a single isolated episode in 1992), evidencing that this practice occurred.

Evidently, there are no other official records supporting this so-called practice during the entire

106
See CR 2009/3, p. 17, para. 33.
107
See RCR, Vol. 2, Ann. 38.
10MCR, Vol. VI, Ann. 227. - 47 -

history of the Treaty’s existence. This in itself attests to the weakness of Costa Rica’s claim. The

document covering the period between 1994 and 1998 does make reference to some 60 occasions,

around one occasion per month, when CostaRican police vessels traversed the SanJuan to bring

personnel or supplies to border posts or to engage in law enforcement activities 10. It makes no

mention whether authorization from Nicaragua was sought, or was not sought, prior to these

activities.

13. This information is supplied in another contemporaneous, official record, produced by

Nicaragua as an Annex to her Rejoinder. This is an aide-memoire of a meeting that took place in

July2000 between CostaRica’s Minister of Pub lic Security and the Commander of Nicaragua’s

army, and other senior security offi cials of both States, in whic h they discussed navigation on the

river by CostaRican vessels during the same pre-1998 period that is covered by CostaRica’s

110
official report . The aide-memoire is located in your judges’ folder, and the pertinent portion is

projected on the screen. In that meeting , the International Legal Adviser to Costa Rica’s Ministry

of Public Security, Colonel Carlos Alvarado Valv erde, stated that, prio r to July1998 when

Nicaragua stopped authorizing use of the rive r by CostaRican police vessels, those vessels

navigated “with prior permission from the Nicaraguan Army, which also verified the personnel and

111
the contents of the vessel at each post that the boat passed” . CostaRica’s Minister of Public

Security, Mr. Rogelio Ramos Martínez, then proposed the re-establishment of the same conditions,

112
which he described as the “ status quo before 1998” . The document sustains Nicaragua’s

position that Costa Rican police vessels only navigated on the San Juan after seeking and obtaining

prior permission from Nicaragua.

14. Subsequent to the close of the written pleadings, CostaRica sought and obtained from

the Court permission to submit additional documen ts. One of these is an affidavit from her

ColonelWalter Navarro, who declared that he wa s the Director of the CostaRican police from

May1998 until February 2006. ColonelNavarro was present, as one of CostaRica’s three

10See RN, para. 5.78.
110
RN, Vol. II, Ann. 68.
11Ibid., pp. 423-424.

11Ibid., p. 423. - 48 -

representatives, at the July2000 meeting that is recorded in the aide-memoire . It is significant,

then, that he makes no mention whatsoever of that meeting in his affidavit, no mention of the

aide-memoire, and offers no specific denial of the statements attributed to the Costa Rican Minister

of Public Security or the Ministry’s Inte rnational Legal Adviser whom the aide-memoire recorded

as acknowledging that CostaRican police vessels ne ver navigated on the SanJuan except “with

prior permission from the Nicaraguan Army, which al so verified the personnel and the contents of

the vessel at each post that the boat passed”. Colone l Navarro’s failure to respond directly or even

mention the aide-memoire , in an affidavit submitted more than four months after CostaRica

received it as part of Nicaragua’s Rejoinder , in which it was prominently discussed, confirms both

the authenticity and the reliability of the document. Equally revealing is the failure of Costa Rica

to produce affidavits from either of the other two of her senior officials who attended the July 2000

meeting. It can be presumed that if either the Minister of Public Security, Mr. Ramos Martínez, or

the International Legal Adviser, Colonel Alvarado Valverde, were prepared to contradict the

statements attributed to them in the aide-memoire, Costa Rica would have submitted their affidavits

along with that of Colonel Navarro. The fact that Costa Rica did not do so further confirms that the

statements attributed to her senior officials in the aide-memoire were made.

15. The responses of Costa Rica’s counsel to this document, on Monday and Tuesday, have

only served to underscore its reliability. Ms Parlett chose to ignore it. Sh e said that the evidence

that supports Nicaragua’s assertion that CostaRican police only navigated on the SanJuan after

requesting and obtaining Nicaragua’s authorization consists entirely of affidavits from Nicaraguan

army officers, which, she said, should not be believed. She insisted that, apart from these affidavits

no documentary evidence supports this 113. She made no mention of the July2000 aide-memoire.

ProfessorCrawford knew better than to ignore it completely. But his approach was no more

successful than MsParlett’s. He suggested that the Court should dismiss it because “there is no

114
indication it was approved or even seen by anyone from the Costa Rican side” . Well, we know

they saw it eight months ago, when it was subm itted to the Court as an annex to Nicaragua’s

Rejoinder; we know that that they had every opportunity to discredit it in the intervening period, as

113
CR 2009/3, p. 51, para. 27.
11CR 2009/3, p. 19, para. 40. - 49 -

part of their post-pleading submission of documents, including affidavits; we know that

ColonelNavarro made no reference to it in his recent affidavit; and we know that no denials or

disavowals were submitted by either of the two other CostaRican officials whose words were

recorded in it. Put simply, we know that Cost a Rica has had every opportunity to present evidence

contradicting the aide-memoire, and has failed to do so.

16. And Professor Crawford knows this, as well, which is perhaps why he falls back to the

argument that the document simply “should be given no weight” because it does not bear the

authentication of its author, Colonel Molina. It is actually this argument that should be given no

weight. The aide-memoire is authenticated by the affidavit of General JavierCarrión, the

Nicaraguan Army Commander who headed Nicaragua’s delegation to the meeting. His affidavit is

in turn authenticated by the same Colonel Mo lina, who notarized it. He was bound by law to

assure that it contained no untrue statements before notarizing it. In any event, if the Court requires

further confirmation of the authenticity of the ai de-memoire, its author, Co lonelMolina, is here

with us in The Hague as part of Nicaragua’s official delegation, and he is available to respond to

any questions from the Court.

17. The affidavits Nicaragua has presented provide further confirmation of the practice of the

Parties prior to 1998. Nicaragua has submitted affi davits from five different military commanders

who were each responsible for maintaining security on the San Juan River between 1979 and 2007.

Their testimony confirms that, prior to the mi ddle of 1998, CostaRican police vessels did not

115
navigate on the river unless they had obtained prior authorization from the Nicaraguan army , and

that they engaged in law enforcement activities on th e river when they were invited to do so by

116
Nicaragua as part of a joint law enforcement exercise . The procedure for the supply missions

was as follows 117: a CostaRican police official would re quest authorization to navigate on the

San Juan to resupply posts. This was done verbally . Nicaragua, also verbally, would grant it. The

CostaRican vessel reported to Nicaraguan military posts upon entering and exiting the river.

115
See RN, paras. 5.80-5.85; ibid., Vol. II, Anns. 68, 69, 72, 73, 77, and 78.
116
See RN, paras. 5.102-5.108.
11See ibid., paras. 5.80-5.85; ibid., Vol. II, Anns. 68, 69, 72, 73, 77, and 78. - 50 -

While transiting on the river, all service arms were stowed on the floor of the Costa Rican vessel.

A Nicaraguan soldier remained on board throughout the journey on the San Juan.

18. The documentary evidence submitted by Costa Rica confirms that on those few

occasions when Costa Rican police have conducted law enforcement activities on the river, it was

always with Nicaragua’s express permission. Cost aRica has introduced only three documents

addressing law enforcement activities on the river, one from 1892, one from 1995, and one from

118
1998. The 1892 document was mentioned by Professor Crawford . It does not support his

argument that CostaRica has unilateral rights to navigate on the river for law enforcement

purposes. It is a report from the Chief of the Guard at the Colorado River in Costa Rica in which

he expressly states that the Nicaraguan authorities granted him the power to seize contraband and

criminals “along the coasts of Nicaragua”, on th e condition that he permit Nicaragua to enter

119
Costa Rican territory to do the same . The document tends to disprove the existence of the right

Costa Rica claims, not to prove it.

19. Similarly, the 1995 document is a joint communiqué issued by the Nicaraguan Army and

the CostaRican Ministry of Public Security, reflecting the Parties’ agreement to undertake joint

law enforcement activities throughout the border area 120. Obviously, such joint activities, wherever

they might take place, could only occur with th e agreement of Nicaragua. The final document

Costa Rica invokes, which is dated 1998, menti ons law enforcement operations in 1995 and 1996

121
carried out “in co-ordination with” or “t o co-operate with” Nicaraguan authorities . Again, by

definition, co-ordination and co-operation with Nicaragua can only occur with Nicaragua’s

authorization. In sum, none of the document s submitted by CostaRica shows that CostaRican

police vessels ever unilaterally, or without prior permission from Nicaragua, navigated on the river

to bring personnel and supplies to border posts, or to conduct law enforcement activities, or for any

other purpose. The Parties’ practice is inconsistent with the claim advanced by Costa Rica in these

proceedings that she has a right of free navigation with her police vessels.

11See CR 2009/3, p. 17, para. 32.
119
See MCR, Vol. VI, Ann. 210.
12See ibid., Vol. II, Ann. 27.

12Ibid., Vol. VI, Ann. 227. - 51 -

C. THE WITHDRAWAL OF N ICARAGUA ’S AUTHORIZATION OF NAVIGATION

BY C OSTA R ICA’S POLICE VESSELS

20. The evidence establishes what the practice of the Parties was in this regard until the

middle of 1998. The evidence also establishes that this “status quo” , to quote Costa Rica’s

122
Minister of Public Security, was disturbed in July of 1998 . In the words of CostaRica’s

Memorial, projected on the screen and located in your judges’ folder: “[I]n the period after

July1998, Nicaragua adopted a policy which invol ved systematic and permanent violations of

CostaRica’s rights, which continue to the present day” 123, in the period after July 1998.

Costa Rica’s reference to July 1998 is significant. That is when Nicaragua advised Costa Rica that

Costa Rican police vessels would no longer be authori zed to navigate on the San Juan River, and,

as a consequence, all such police navigation termin ated. CostaRica’s statement that Nicaragua’s

alleged systematic violations of her rights began in July 1998 effectively admits that her rights

were not systematically violated by Nicaragua prio r to that date: and that whatever the status quo

was prior to that date did not constitute a systematic violation of her rights. In other words, the

principal violation of her rights for which Costa Rica seeks redress in this Court is Nicaragua’s

refusal, after July 1998, to authorize CostaRican police vessels to carry out armed navigation on

the San Juan River for police purposes wholly unrelat ed to navigation “con objetos de comercio”.

It would seem that this is why we are in court today.

21. The circumstances leading up to Nicaragua’s decision in July 1998 to prohibit further

navigation on the river by Costa Rican police vessels have been detailed in Nicaragua’s Rejoinder.

To summarize, the evidence presented there shows that CostaRica’s newly-elected President and

his Public Security Minister, Juan Rafael Lizano, adopted a new policy in May of 1998, in response

to what they perceived as an increase in illegal immigration from Nicaragua across the San Juan, as

reflected in Annex 19 of Nicaragua’s Rejoinder. Th ereafter, for the first time, Costa Rica began to

send her armed police vessels onto the SanJuan, without requesting prior authorization from

Nicaragua, for the purpose of intercepting Nicaraguans thought to be illegally bound for

Costa Rica. According to the documentary eviden ce Costa Rica submitted to the Court before the

close of the written pleadings — the documentary evidence that Costa Rica submitted to the Court

122
RN, Vol. II, Ann. 68, p. 423.
12MCR, para. 3.02. - 52 -

before the close of the written pleadings — her po lice vessels transported detained Nicaraguans at

gunpoint on the San Juan River in June of 1998 124.

22. According to the same CostaRican Annex, Nicaragua protested immediately. In

particular, the CostaRican police commander at Sa rapiquí recorded that Nicaragua’s commander,

Colonel— now Brigadier General—Talavera, protested CostaRica’s actions 125. This, however,

did not deter CostaRica from continuing to execute her new policy, and the CostaRican police

commander’s record shows further CostaRican in cursion onto the river, and detention and

126
transport of Nicaraguan nationals on 14June 1998 . The same CostaRican official record says

that, in response to these detentions, on 14July1998, Nicaragua, in the person of Colonel, now

GeneralTalavera, prohibited any further navigation by the CostaRican police on the SanJuan 127.

Nicaragua submitted an affidavit from GeneralTa lavera confirming these facts as reflected in

Costa Rica’s own documents. But what is most significant about them is that they are contained in

Costa Rica’s own documents, submitted to the Court as part of her written pleadings.

23. However, apparently, Costa Rica now takes issue with her own contemporaneous official

record. CostR aica attempts to rewrite history belatedly via the affidavit of

ColonelWalterNavarro, submitted after the clos e of the written pleadings. According to

ColonelNavarro, “neither he personally nor any of his subordinates issued instructions for the

detention of Nicaraguan citizens on the SanJuan River, and that he is not aware that it ever

happened . . .” 128. It will not escape the Court’s notice that this statement is directly contradicted

by CostaRica’s own official police report. As I have just mentioned, CostaRica’s documentary

evidence, recorded by the police commander at the Sarapiquí border post –– who, by the way, was

directly under ColonelNavarro’s command afte r 8May1998–– states that apprehensions of

Nicaraguans occurred during June 1998. Also cont radicted by that CostaRican police report is

ColonelNavarro’s statement that “the Nicaragua n Government never issued any formal protest”

12See ibid., Vol. VI, Ann. 227, p. 963.
125
See ibid.
126
See ibid.
12See ibid., p. 964.

12Costa Rica late submissions (d), para. Fifth. - 53 -

about the detentions of Nicaraguan citizens on the San Juan 129. But according to the 14 June 1998

entry in the Costa Rican police report:

“Colonel Talavera [of the Nicaraguan Army] complained that no one navigating
the SanJuan should be detained, since acco rding to [Colonel]Talavera, some days
ago some officers from Delta Zero [that is another Costa Rican police post on the bank
130
of the river] had forced some persons to get off the boat.”

The report further records that on 14July, Nicara gua, based on these and other detentions of her

nationals by the CostaRican police, announced th at she would no longer authorize CostaRican

131
police vessels to navigate on the SanJuan . Nicaragua submits that, as between the

contemporaneous official police record submitted by Costa Rica with her written pleadings, and the

affidavit generated by ColonelNavarro more than ten years after the fact and in the context of

litigation, it is the former that should be given credence.

24. It was this decision by Nicaragua to stop authorizing navigation by CostaRican police

vessels that led, ultimately, to the meeting between CostaRica’s Minister of Public Security and

Nicaragua’s army commander, and other senior security officials of both States in July 2000, that is

recorded in the aide-memoire that I previously discussed and displayed to the Court. CostaRica

sought the meeting to persuade Nicaragua to reinstate “the status quo from before 1998”, which her

officials described in the manner that I read out to the Court. In that meeting, both Parties

recognized that it was CostaRica’s breach of the status quo ⎯ and in particular her unauthorized

navigation on the SanJuan River for the purpose of detaining and transporting, under force of

arms, Nicaraguan nationals thought to be planning to migrate unlawfully into CostaRica ⎯ that

prompted Nicaragua to stop authorizing navigation by Costa Rican police vessels. It must be noted

that ColonelNavarro of CostaRica, in his affidavit, denies that he personally ever asked

permission of Nicaragua for his forces to navigate on the San Juan and never discussed the question

of permission with any Nicaraguan army officers. Well, it is precisely this behaviour by

ColonelNavarro, after he was appointed to his pos t in May1998, which led to the difficulty and

Nicaragua’s decision to stop authorizing navigation by the CostaRican police two months later.

12Ibid.
130
MCR, Vol. VI, Ann. 227, p. 963.
13See ibid., p. 964. - 54 -

But whatever reason for deciding to stop authoriz ing navigation by the Costa Rican police, it was

within Nicaragua’s right to do so as sovereign over the river, because CostaRica’s right of free

navigation “con objetos de comercio” does not include a right of her police vessels to navigate on

the SanJuan in the exercise of police functions. These are the facts, and they all point in one

direction: That the practice of the Parties does not support–– indeed it thoroughly refutes ⎯

CostaRica’s contention that she has a right to navigate on the SanJuan River with her police

vessels.

D. T HE EVIDENCE REGARDING NAVIGATION BY OTHER G OVERNMENT VESSELS

25. The same conclusion that applies to naviga tion with police vessels applies to navigation

with other Costa Rican public vessels engaged in carrying out governmental functions unrelated to

“objetos de comercio”. Costa Rica has no right of navigation with those other public vessels under

the Treaty of 1858 or the Cleveland Awa rd. Even so, Nicaragua does not ⎯ as would be her

sovereign right ⎯ prohibit CostaRica from navigating on the river for purposes of delivering

medical, educational or other social services to Costa Rican citizens on the righ t bank of the river.

Nicaragua requires only that CostaRican public vessels and officials register with Nicaraguan

authorities upon entering and exiting the river and comply with any applicable visa

132
requirements . I discussed the lawfulness and reasonableness of these regulations in my earlier

speech and need not repeat that here. Since there is no right of Costa Rica to navigate with public

vessels for ordinary governmental purposes, unrelated to “objetos de comercio”, Nicaragua cannot

be properly accused of violating a right that CostaRica does not possess, especially when

Nicaragua consents to the navigation subject only to the reasonable requirements I have mentioned.

26. Now, I would be less than candid if I did not admit that I was impressed by the very

powerful emotional content of Ms Parlett’s presentation on Tuesday. After all, who would not be

moved by the picture she painted of 450CostaRicans, including 200children, deprived of basic

health services, including inoculation against screw worm and other diseases? But as is often the

case with such appeals to the heart, the law gets redesigned or ignored entirely in order to provide a

remedy for the compelling set of facts depicted by counsel. Thus, MsParlett tells us that

132
See RN, paras. 5.109-5.112. - 55 -

CostaRica’s right under the 1858Treaty “includes navigation by government officials to provide

essential services to local communities” 133. MsParlett nowhere explains how or why this

statement is justified. She merely states her c onclusion and moves on to her version of the facts,

which she finds more felicitous to her argument. I trust by now that it is clear that no such legal

right can be found in the 1858 Treaty, the Cleveland Award or the practice of the Parties. There is

no right of navigation with public vessels for the purpose of delivering governmental services.

27. Furthermore, the facts are not as felicitous as MsParlett very skilfully portrays them.

She overreaches when she contends that subsequent to 1998 Nicaragua has “prevented” Costa Rica

from delivering “services to the local population, including health, education and security” 134.

There is no evidence to support this sweeping statement. It is true that Nicaragua requires

CostaRicans, who are not residents of the right bank, including CostaRican officials, to obtain a

visa before entering Nicaraguan territory, but there is no evidence that this requirement has had

anything close to what MsParlett described as “detrimental consequences” for the local

residents 135. Much attention was paid to the solitary case of Dr.Ching, whose efforts to obtain a

Nicaraguan visa were described at some length. What MsParlett neglected to mention was that

136
Dr. Ching in fact received a Nicaraguan visa .

28. It is a fact, and Nicaragua acknowledg es it, that there have been bureaucratic

inefficiencies which have resulted in delays in the issuance of some visas. Ms Parlett has identified

two or three such instances, which Nicaragua regr ets. However, these are isolated cases and they

do not prove that it was Nicaragua’s policy to deny or delay visas for Costa Ricans or access to the

river. It was not. Moreover, Costa Rica herself acknowledges, in her Reply, that by May of 2007,

Nicaragua was indeed expeditiously granting visas so that CostaRican officials could deliver

137
governmental services to local residents via navigation on the San Juan .

133CR 2009/3, p. 49, para. 19; emphasis added. See also ibid., p. 44, para. 6; p. 45, para. 8.
134
CR 2009/3, p. 44, para. 3.
135
CR 2009/3, p. 44, para. 4.
136RN, para. 5.112; CMN, paras. 6.2.14-6.2.15.

137RCR, paras.4.36-4.37 ; RN, para. 5.112. - 56 -

E. C ONCLUSION

29. Mr.President, Members of the Court, this brings me to my conclusion. I can state it

simply. Costa Rica has no right of navigation on the San Juan River with her public vessels for the

purpose of carrying out police or other governmental functions. The 1858 Treaty of Limits and the

Cleveland Award carved out a right beyond, but inextricably connected to, the right of navigation

“con objetos de comercio”. That is the right of vessels of CostaRica’s revenue service, and only

her revenue service, to navigate on the river when it is related to and connected with navigation

“con objetos de comercio”, and only when it is related to and connected with navigation “con

objetos de comercio”. ProfessorMcCaffrey h as demonstrated that the 1858Treaty and the

Cleveland Award are susceptible of no other interpre tation. It has been my purpose to show that

the practice of the Parties, likewise, permits no other interpretation.

30. Mr. President, Members of the Court, I thank you once again for your patience and your

kind attention. I ask you to please call upon Professor Pellet as Nicaragua’s next, and final, speaker

of this round.

The PRESIDENT: I thank MrR . eichler for his presentation. I now invite

Professor Alain Pellet to take the floor.

M.PELLET: Thank you very much, Mr. President. I am afraid, I have to beg your kind

indulgence, but my presentation will last 20 minutes.

REMÈDES ⎯ U NE RÉPONSE AU PROFESSEUR C RAWFORD

1. Monsieur le président, Messieurs les jug es, le professeur Crawford s’est félicité d’être

138
admirablement concis («commendably brief») au sujet des remèdes demandés par le Costa Rica.

Je vais essayer de le concurrencer sur ce terrain de la brièveté … aussi peu familier qu’il nous soit à

l’un comme à l’autre !

2. Sans m’employer à faire un tour complet des problèmes relatifs aux «remèdes» dans cette

139
affaire , je répondrai à mon contradicteur ⎯ mais toujours aussi ami ⎯ en distinguant la question

138
CR 2009/3, p. 63, par. 4.
139Contre-mémoire du Nicaragua (CMN), p. 239-249, par. 7.1.1-7.2.6 ; Duplique du Nicaragua (DN), p. 299-327,
par. 6.1-6.49. - 57 -

des déclarations, que les deux Parties vous demande nt de faire, des autres demandes en réparation,

aussi nombreuses que variées, formulées par le Costa Rica.

I. LES DEMANDES DE DÉCLARATIONS ADRESSÉES À LA C OUR

3. Monsieur le président, comme l’a rappelé James Crawford, les deux Parties prient la Cour

de mettre fin, par une ferme déclaration, aux incertitudes qui subsistent sur la portée de leurs droits

et obligations respectifs en vertu du traité Cañas-Jérez de 1858. Et nous avons noté avec intérêt, de

ce côté-ci de la barre, que la Partie costa-rici enne semble avoir renoncé à mettre en doute la

recevabilité de la demande formulée à cette fin par le Nicaragua. Ceci me semble à la fois avisé et

juridiquement équitable: parce qu’il paraîtrait pour le moins étrange, Messieurs de la Cour, que

vous acceptiez de vous interroger, comme la Partie costa-ricienne vous y presse sur les prétendues

«violations, par le Nicaragua, des obligations qui sont les siennes envers le Costa Rica» en vertu du

140
traité de limites de1858, ce qui cons titue l’objet premier de la requête , et que, dans le même

mouvement, vous refusiez de vous prononcer sur la portée des obligations du défendeur en vertu de

ce même instrument.

a) La déclaration demandée par le Nicaragua

4. Le Nicaragua prie donc la Cour de bien vouloir énoncer clairement le contenu et la portée

des différents droits et obligations établis par le traité de 1858 (tels qu’interprétés par la sentence du

président Cleveland), qui continuent à poser problèm e en matière de navigation. Ce n’est que de

cette manière que sera complètement résolu le différend soumis à la Cour, conformément d’ailleurs

au vŒu que Monsieur l’agent du CostaRica a lui-même formulé lundi matin 141. Comme nous

142
l’avons indiqué dans notre duplique , il ne s’agit pas là d’une requête reconventionnelle, ni même

d’une demande autonome, mais, simplement d’une dé marche visant à obtenir que la Cour rejette

l’interprétation inacceptable de ses droits et obligat ions que le CostaRica la prie d’entériner et

qu’elle précise, une fois pour toutes, quels sont le s droits et obligations respectifs des Parties en

140
Requête, p. 7, par. 1.
141
CR 2009/2, 2 mars 2009, p. 14, par. 10 (Ugalde-Alvarez)
14DN, p. 300-301, par. 6.4. - 58 -

vertu du traité de Lima de 1858. Ceci peut être fait dans le dispositif de l’arrêt qu’elle est appelée à

rendre ou dans ses motifs.

5. La raison des cette demande est simple : comme mes collègues l’ont démontré tout au

long de notre présentation, l’objectif principal de la Partie costa-ricienne consiste, pas seulement en

plaidoiries, mais aussi par son comportement constant, à rechercher par tous les moyens

l’élargissement du droit de libre navigation con objetos de comercio que lui reconnaît le traité

de 1858 et qu’elle voudrait diluer en quelque cho se de tout à fait différent : la reconnaissance pure

et simple d’un droit de libre navigation tout court, inconditionnel et absolu accompagnée de toute

une théorie de droits accessoires. Une telle dilution, qui est au cŒur du différend que le Costa Rica

a soumis à la Cour, n’est pas acceptable pour le Nicaragua et constitue une source de frictions

constantes entre les deux pays riverains du fleuve. Or, il est à peine besoin de le rappeler, «la Cour

possède un pouvoir inhérent qui l’autorise à prendre toute mesure voulue…pour assurer le

règlement régulier de tous les points en litige…» ( Essais nucléaires (Australie c.France), arrêt,

C.I.J. Recueil 1974, p. 25, par. 23 ; Essais nucléaires (Nouvelle-Zélande cF . rance), arrêt,

C.I.J. Recueil 1974, p.463, par.23. Voir aussi, par exemple: Plateau continental (Jamahiriya

arabe libyenne/Malte), arrêt, C.I.J. Recueil 1985, p. 23, par. 19.)

6. Monsieur le président, je ne puis me livrer à un long commentaire du bien-fondé de

chacune des demandes du Nicaragua. Tous ces poi nts ont été déjà présentés dans nos écritures 143

et par mes collègues :

⎯ M Reichler a montré que le Nicaragua est i ndiscutablement en droit de réglementer les

activités menées sur le fleuve, et en particulier la navigation, et qu’il peut exiger le paiement de

redevances pour les services rendus ayant un lien avec ceux-ci ; et

⎯ le professeur McCaffrey a, pour sa part, rappe lé que les activités des bateaux du service des

douanes costa-riciennes doivent être strictement liées et limitées à la navigation con objetos de

comercio ;

⎯ en ce qui concerne le droit du Nicaragua d’entret enir le fleuve et de procéder à l’amélioration

144
de sa navigabilité, nous avons longuement établi dans notre duplique que ce droit existe et

143Voir DN, p. 306-308, par. 6.17. - 59 -

peut être mis en Œuvre sans que le consentement du CostaRica soit nécessaire, comme l’a

reconnu d’ailleurs expressément la sentence Cleveland 145; et

⎯ il paraît assez évident que le dragage, qui favoriser ait (et permettrait de rétablir) la navigabilité

du San Juan, est inclus dans l’exercice de ce droit fondamental ⎯qui serait d’ailleurs à

l’avantage du CostaRica si, comme il le prétend, il a un intérêt quelconque à naviguer sur le

San Juan avec des marchandises (je veux dire: con objetos de comercio …). Nous avons

d’ailleurs noté que le professeur Crawford a e xpressément déclaré l’accord du CostaRica sur

146
ce point .

7. Telles sont donc les raisons, Monsieur le président, pour lesquelles le Nicaragua entend

maintenir, dans les conclusions finales qu’il déposera la semaine prochaine, une demande tendant à

ce que la Cour déclare formellement qu’il a droit à ce que la pleine souveraineté ( dominium et

imperium) qui lui est reconnue par l’articleVI du tr aité frontalier de1858 soit effectivement

respectée par le Costa Rica.

8. En revanche, le Nicaragua ne demande pas à la Cour de se prononcer directement sur les

«réserves» qu’il a formulées au sujet du statut juridique du Colorado ou de la pollution existante ou

potentielle (liée notamment à la mise en exploitation de la mine d’or de Las Crucitas) 147 : il lui est

simplement apparu utile et juste d’informer la Cour de l’existen ce (regrettable) d’autres différends

qui touchent le San Juan et ne sont pas dépourvus de tout lien avec la présente instance.

b) La déclaration demandée par le Costa Rica

9. Monsieur le président, pour sa part, le Costa Rica a inclus dans les conclusions de sa

duplique une longue liste de prétendues violations à ses obligations relatives au régime du fleuve

San Juan qu’il impute au Nicaragua 148. Nous ne contestons pas la recevabilité de ces demandes et

il ne me paraît ni utile ni possible de les repre ndre une à une en tout cas pour l’instant : toutes nos

144DN, p. 302-305, par. 6.08-6.16.
145
MCR, vol. II, annexe 16, p. 99.
146
CR 2009/3, 3 mars 2009, p. 68, par. 25.
147Voir CMN, p. 251, ou DN, p. 325-326, par. 6.49.

148RCR, p. 211-212, par. 2. - 60 -

plaidoiries de ces deux jours ont démontré combien elles étaient infondées. Je me bornerai à

deux remarques.

10. La première sera pour mettre respectueusem ent la Cour en garde contre l’apparente

innocuité de ces demandes, peut-être contre leur «bonhomie», qui, sous leur allure technique,

veulent vous conduire en réalité, Messieurs les j uges, à remettre profondément en cause le régime

du fleuve tel qu’il résulte du traité de 1858 interprété par la sentence Cleveland de 1888. Juste un

exemple: je ne sais pas quelles ont été vos réactions lors de la projection par JamesCrawford du

149
garde-côtes le Forward . En tout cas, pour moi, cet imposant bâtiment a bien davantage évoqué

l’idée d’un navire de guerre justement, que d’un bateau dont l’anodine et sympathique fonction

aurait été l’accompagnement des noces du président Cleveland et de MissFolsom. Or, si vous

veniez à faire droit à sa demande, le CostaRica ne manquerait pas de se prévaloir de cette

projection (et de ses plaidoiries sur les bateaux de douane et autres navires officiels) pour envoyer

sur le fleuve nicaraguayen San Juan des bâtiments qui seraient l’équivalent moderne du Forward

ou du Chandler ⎯ je signale d’ailleurs qu’avant d’escorter la future First Lady, le Chandler a servi

en tant que bâtiment de la mari ne de guerre américaine et a mê me, durant la guerre de Sécession,

150
capturé une corvette espagnole . La formulation minimaliste de la conclusion du CostaRica

figurant sous la lettre «g)» (et ce n’est qu’un exemple parmi d’autres) doit être appréciée dans cette

perspective. Il en va de même, par exemple, de celle énoncée sous la lettre «i)», sur la pêche de

e
subsistance. Je n’y reviens pas, M Reichler en a parlé tout à l’heure.

11. Ma seconde remarque est plus globale. Supposons, Monsieur le pr ésident, que la Cour

fasse droit aux conclusions du Costa Rica ⎯ visio horribilis … mais supposons-le un instant ! Que

resterait-il du dominium etdel’ imperium exclusifs du Nicaragua sur le fleuve au regard du droit

absolu de navigation revendiqué par le CostaRica? Rien ⎯ou pratiquement rien, si ce n’est

l’interdiction faite à la Partie costa-ricienne d’y faire naviguer des navires ouvertement «de

guerre», tant une telle demande aurait été en contradiction trop flagrante avec la sentence

Cleveland. Et encore…: le CostaRica a une conception tellement extensive de ses soi-disant

droits de «protection» et de défense du fleuve, que, conformément à sa tactique constante depuis

149
Voir CR 2009/4, p. 16, par. 32 (Gómez) ; voir aussi CR 2009/3, p. 13-14, par. 23.
150Voir http://www.uscg.mil/history/webcutters/Jasmine_1866.pdf. - 61 -

centcinquanteans, la conclusion figurant sous la le ttre «g)» constitue à l’évid ence, je viens de le

montrer, une nouvelle tentative de «grignotage» qu i, dans les faits, remet en cause ce que l’on

pensait acquis depuis 1888. Dans cette perspective inquiétante, le Nicaragua se trouverait réduit à

n’être qu’un imperator privé de toute compétence ; un dominus qui ne pourrait ni réglementer le

tourisme sur le fleuve, ni édicter de règles propr es à assurer la sécurité de la navigation sur le

fleuve, ni tenter d’en préserver l’environnement ou d’en rétablir la pleine navigabilité, et dont les

forces armées (beaucoup plus modestes que celles du Costa Rica : le Nicaragua ne dispose pas de

garde-côtes dont le gabarit serait l’ équivalent contemporain de celui du Chandler) en seraient

réduites à assister depuis la rive aux démonstrat ions de force de la police et des garde-côtes

costa-riciens.

12. Le Nicaragua vous prie, Messieurs de la Cour, de rejete r toutes les demandes contenues

dans le paragraphe2 des conclusions du CostaRica, qui remettent profondément en cause,

l’équilibre réalisé par le traité de 1858 tel que la sentence Cleveland l’a interprété.

II.L ES AUTRES CONCLUSIONS DU C OSTA R ICA

13. Monsieur le président, pour le reste, les conclusions du Costa Rica sont «attendues» et le

rejet des allégations de violations qu’aurait comm ises le Nicaragua doit, de toute façon, Messieurs

les juges, vous conduire à les rejeter: ce n’est pas au professeurCrawford que je vais apprendre

que la responsabilité de l’Etat est engagée ⎯mais n’est engagée que ⎯ infa

internationalement illicite peut lui être attri bué. Pas de violation ; pas de responsabilité ⎯ ni bien

sûr de cessation, d’assurances ou de garanties de non-répétition, ou de dédommagement.

14. Permettez-moi cependant, Monsieur le président, de répondre en quelques phrases aux

allégations de mon contradicteur en ce qui concerne la question des injonctions, d’une part ; celle

des dommages-intérêts, d’autre part (sans bien sûr que ces réponses constituent de quelque manière

que ce soit une reconnaissance de responsabilité de la part du Nicaragua).

15. Les injonctions d’abord. Je ne conteste évidemment pas que «[t]he Court gives decisions

151
in its contentious jurisdiction which are binding on States» . Mais ce n’est pas ce dont il s’agit ici

151
CR 2009/3, p. 64, par. 8. - 62 -

152
⎯ et l’exemple de l’affaire du Mandat d’arrêt, opportunément citée par le professeur Crawford ,

illustre parfaitement notre objection: certes, dans ce tte affaire, la Cour a constaté l’illicéité du

mandat d’arrêt délivré à l’encontre de M.Yerodia mais, conformément à sa jurisprudence

153
constante , elle s’est gardé d’annuler elle-même le mandat en question et a laissé à la Belgique le

soin de le mettre à néant «par les moyens de son choix» («by means of its own choosing») (Mandat

d’arrêt du 1a 1vr2il000 (République démo cratique du Congo c B.elgique), arrêt,

C.I.J. Recueil 2002, p.32, par.76 et p.33, par.78C.3). C’est tout ce que voulait dire le

Nicaragua: si, par impossible, la Cour en vena it à juger que certaines des mesures qu’il a prises

pour la protection du fleuve San Juan et la sécurité de la navigation étaient illicites ⎯ quod non!

⎯il ne lui appartiendrait pas de procéder elle -même à leur «abrogation» comme le demande le

Costa Rica 154. Au surplus, que cela doive être fait par votre haute juridiction ou reconnu comme

relevant de la compétence du Nicaragua, de toute manière, il est rigoureusement impossible, à la

Cour comme au Nicaragua, de donner suite à cette demande (tout à fait exorbitante) faute pour

l’Etat demandeur d’avoir spécifié les mesures législatives et réglementaires dont il réclame

l’«abrogation» 155.

16. En ce qui concerne la demande de dommages-intérêts, nous ne contestons nullement que

ceux-ci pourraient faire l’objet d’une seconde phase de la procédure 156⎯ si les violations alléguées

par le CostaRica étaient avérées ⎯ quod non à nouveau ⎯ et si celui-ci apportait la preuve d’un

préjudice qu’il n’invoque ⎯ également ⎯ que de manière si vague et si floue que l’on voit mal

comment la Cour pourrait, sur cette base, consta ter même le principe du droit à réparation du

Costa Rica pour, dans une seconde phase, fixer le montant de l’indemnisation réclamée, bien à tort,

152Ibid., p. 64-65, par. 9.
153
Voir, par exemple, Concessions Mavrommatis à Jérusalem, arrêt n o5, 1925, C.P.J.I. sérieA no5, p. 50 ;
Haya de la Torre (Colombie/Pé rou), arrêt, C.I.J.Recueil1951 , p. 79 ; LaGrand (Allemagne c.Etat s-Unis d’Amérique),
arrêt, C.I.J.Recueil2001 , p. 516, par. 128 7) ; Avena et autres ressortissants mexicains (Mexique c.Etats-Unis
d’Amérique), arrêt, C.I.J. Recueil 2004, p. 32, par. 31. Voir aussi CEDH, arrêt du 18 décembre 1986, requête n 9697/82,
o
Johnston et autres c. Irlande, série A n 112, par. 77.
154Voir MCR, p. 141, par. 6. 13 ; RCR, p. 198, par. 5.15 ; CR 2009/3, p. 64, par. 6 (Crawford).

155 Certains intérêts allemands en Haute-Silésie polonaise, fond, arrêt n 7, 1926, C.P.J.I. série A n 7, o

p. 34-35 ; Essais nucléaires (Australie c.Fr ance), arrêt, C.I.J. Recueil 1974, p.262, par.29; ibid., p.466,
par. 30; et Compétence en matière de pêcheries (République fé dérale d’Allemagne c.Islande), fond, arrêt,
C.I.J. Recueil 1974, p. 204, par. 76.
156
Cf. CR 2009/3, p. 66, par. 17 (Crawford). - 63 -

par le demandeur. Qu’il s’agisse de fixer ce m ontant dans une phase ultérieure ou de constater

⎯comme dans l’affaire de la Compétence en matière de pêcheries , dont le professeur Crawford

157
récuse à tort la pertinence ⎯ le principe d’une obligation d’indemniser, le problème se pose de

la même manière:même si les preuves de la consistance et de l’étendue des dommages subis

peuvent être différées dans le premier cas et non da ns le second, «la Cour ne peut formuler une

constatation générale de responsabilité sur des questions au sujet desquelles elle ne possède que des

renseignements limités et des preuves insuffisan tes» («the Court is prevented from making an

all-embracing finding of liability which would co ver matters as to which it has only limited

information and slender evidence») (Compétence en matière de pêch eries (République fédérale

d’Allemagne c.Islande) , fond, arrêt, C.I.J. Recueil 1974, p.205, par.76) 158. Or le Costa Rica

demande à la Cour de prononcer, dans ce premier temps, une constatation générale de

responsabilité. J’ajoute que si, par impossible, la Cour constatait que le Nicaragua avait manqué à

l’une quelconque de ses obligations en vert u du traité de 1858 correctement interprété ⎯ décision

que nous n’envisageons pas… ⎯ une telle constatation constit uerait à l’évidence une réponse

amplement appropriée 159.

17. Monsieur le président, j’ai peut-être eu to rt de «défier» James Crawford sur le terrain

qu’il avait choisi, celui de la brièveté, car ⎯ mon ordinateur a compté pour moi ⎯ j’ai utilisé un

tout petit peu plus de mots et de caractères que lui ⎯ mais mes notes sont plus fournies et le

français est une langue plus fleurie que l’anglais. Donc, me semble-t-il, à cet égard, «match nul».

Par contre, sur le terrain, autrement plus sérieux, du régime juridique applicable à la navigation sur

le fleuve San Juan, nous ne pouvons laisser dire ou sous-entendre qu’il s’agirait d’une question

160
mineure . Pour le Nicaragua, c’est un problème de principe qui met en cause sa souveraineté.

Ainsi s’achève, Monsieur le président, Messieurs de la Cour, les plaidoiries du Nicaragua

pour ce premier tour. Au nom de toute notre délé gation, et au mien, je vous remercie de votre

patience et je vous souhaite, ainsi qu’à nos amis costa-riciens, un très bon week-end.

157CR 2009/3, p. 66, par. 17.
158
Voir aussi la jurisprudence citée dans DN, p. 322-324, par. 6.45.
159Frontière terrestre et maritime entr e le Cameroun et le Nigéria (Camer oun c.Nigéria; Guinée équatoriale

(intervenant)), arrêt, C.I.J. Recueil 2002, p. 452, par. 319.
160CR 2009/3, p. 69, par. 27 (Crawford). - 64 -

The PRESIDENT: I thank Professor Pellet for his presentation.

This marks the end of the first round of oral argument of the Republic of Nicaragua. The

Court will meet again on Monday 9 March at 10 a.m. to hear the second round of oral argument of

the Republic of Costa Rica.

I would like to insist that the second round of oral argument should focus on the points raised

in the first round of oral pleadings and on replies to those questions that have not been answered. I

would like to ask for your co-operation.

The meeting is adjourned.

The Court rose at 1.05 p.m.

___________

Document Long Title

Audience publique tenue le vendredi 6 mars 2009, à 10 heures, au Palais de la Paix, sous la présidence de M. Owada, président, en l'affaire du Différend relatif à des droits de navigation et des droits connexes (Costa Rica c. Nicaragua)

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