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.
___________
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)