Written response of Costa Rica to the question put to it by Judge Bennouna at the end of the hearing held on 15 October 2010, at 5 p.m.

TERRITORIAL ANDMARITIME DISPUTE

NICARAGUA V. COLOMBIA

APPLICATION BY COSTA RICA FOR PERMISSION TO lNTERVENE

COSTA RICA'S ANSWER TO THE HONOURABLE JUDGE BENNOUNA'S QUESTION

1. At the conclusion of the oral pleadings on Costa Rica's application for permission

to intervene in the case concerning the Territorial and Maritime Dispute (Nicaragua/

Colombia), Judge Bennouna posed to Costa Ricathe following question:

"Costa Rica has indicated to the Court that it has still not ratified the maritime
delimitationtreaty in the Caribbean Sea, which it signed with Co1ombiaon 17 March
1977,"in considerationofNicaragua's continuousrequeststhat CostaRica notratifythe
treaty until the dispute with Co1ombiahas been reso1ved[and] acting out of good

neighbourliness"(CR2010/12,p.22, para.8(Brenes)).

Has Costa Rica postponed ratification of the Treaty of 17 March 1977 pending the
Court'sjudgment onthe merits,inthecasebeforeit, betweenNicaraguaandCo1ombia?

In other words, is Costa Rica waiting for the Court's judgment on the merits for
clarificationof certain notions mentionedin the same verbatim record (CR 2010/12,p.
35,para. 13(Lathrop)),on the basisofwhich the 1977Treatywas supposedlynegotiated
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andsigned?"

2. With regard to the first formulation of the question, Costa Rica answers

affirmatively: Costa Rica has postponed ratification of the 1977 agreement because the

ongoing dispute between the Parties, Nicaragua and Colombia, requires decision by this

Court. On 24 December 1999, the Nicaraguan president, Amoldo Alema.n, announced

Nicaragua's intention to bring a case before this Court against Colombia. That same

year, President Aleman wamed Costa Rica that should the treaty between Costa Rica and

Colombia in the Caribbean Sea be ratified, this would create a serious crisis. 3

Subsequently, on 21 February 2001, Roberto Rojas, the Foreign Minister of Costa Rica,

announced in relation to ratification of the 1977 agreement that Costa Rica "will await

the results from The Hague to better clarify which is really the actual territorial

1
2CR 2010117, p. 27 (Judge Bennouna).
3Nicaragua's Written Observations to Colombia's Preliminmy Objections, Vol.l, p. 127, para. 3.91.
See La Naci6n, San José,25 October 2000, http://www.nacion.com/ln_ee/2000/octubre/25/ultima3.html
("The Nicaraguan president, Arno!do Aleman, warned Costa Rica last year that should that Treaty that
delimit areas in the Caribbean Sea be approved, it would provoke a serious crisis like the one that Honduras
is facing resulting from a similar agreement with Colombia." (Translation by Costa Rica)). · 4
sovereignty pertaining to Colombia, and which pertains to Nicaragua." At that time, the

1977 Treaty was already before Costa Rica's Legislative Assembly. On 12 September,

2001, a commission of the Legislative Assembly referred the agreement back to the

executive branch for possible resubmission to the Assembly. On 6 December 2001,

Nicaragua did, in fact, file its application in this case, asking the Court

"to adjudge and declare:

First, that the Republic of Nicaragua has sovereignty over the Islands of

Providencia, San Andres and Santa Catalina and all the appurtenant islands and
keys, and also over the Roncador, Serrana, Serranilla and Quitasuefio keys (in so
far as they are capable of appropriation);

Second, in the light of the determinations conceming title requested above, the
Court is asked further to detèrmine the course of the single maritime boundary
between the areas of continental shelf and exclusive economie zone appertaining

respectively to Nicaragua and Colombia, in accordance with equitable principles
and relevant circumstances recognized by general international law, as applicable
to such a delimitation of a single maritime boundary." 5

3. In this context, the Costa Rican executive branch has, to date, not resubmitted the

1977 agreement for legislative consideration. In this sense, "Costa Rica has postponed
ratification of the Treaty of 17 March 1977 pending the Court's judgment on the merits,

in the case between Nicaragua and Colombia".

4. For the sake of completeness, it must be noted that Costa Rica's constitution

places the foreign affairs power, including the power to negotiate and conclude

international agreements, in the executive, but locates the power to conclusively bind the

State through ratification with Costa Rica's legislature, the Legislative Assembly. Thus,

as noted during Costa Rica's oral submissions, the ultimate decision to ratify, if and when

the Treaty is resubmitted, "falls upon Costa Rica's Parliament". And, as is the nature of

the democratie process, that decision will be taken in consideration of the varied positions

put forward by Costa Rican civil society and the individual members of the Assembly.

4
La Naci6n, San José,21 February 2001, http://www.nacion.com/ln_ee/2001/febrero/21/ultimal.html
5Translation by Costa Rica).
6Application lnstituting Proceedings, p. 8, para. 8.
CR 2010/12, p. 22, para. 8 (Brenes).

25. However, with regard to the second formulation of the question-"[ ... ] is Costa

Rica waiting for the Court's judgment on the merits for clarification of certain notions

mentioned in the same verbatim record[ ... ], on the basis ofwhich the 1977 Treaty was

supposedly negotiated and signed?"-the answer is that Costa Rica is not. These notions

were presented by Costa Rica in its Application 7 and oral submissions to demonstrate

that Costa Rica believed-at the time the 1977 agreement was concluded-that Colombia

was the state with which delimitation was required in this part of the Caribbean. The

decision in this case may confirm or contradict this belief, but is not itself a reason for the

non-ratification of the 1977 agreement. Moreover, neither the "certain notions"

referenced in the question posed by the Court nor the 1977 agreement itself constitute an

interest of a legal nature that may be affected by the decision in this case, perse. Costa

Rica's interest of a legal nature, as presented in its Application and throughout its oral

submissions is its "[... ] interest in the exercise of its sovereign rights and jurisdiction in

the maritime area in the Caribbean Sea to which it is entitled under international law by
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virtue ofits coast facing on that sea."

6. In its limited position in this request for permission to intervene, Costa Rica has

not asked the Court to adjudicate the legal merits of the notions underpinning the 1977

agreement. Instead, Costa Rica has simply brought to the Court's attention the

implications for the geographie scope of Costa Rica's legal interest, should the Court's

decision affect its neighborly relationships in the vicinity of the 1977 agreement. Should

this happen, it would render ratification without purpose or practical effect. ·

7Application for Permission to Jntervene by the Republic of Costa Rica, p. 3, para. Il.
8CR 2010/12, p. 35, para. 13 (Lathrop).
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This beliefis consistent with Costa Rica's diplomatie note (No. 68,682- PE) of 18 October 1972
"regarding the situation of the banks ofQuitasuefio, Roncador and Serrana", ali ofwhich are located weil to
the north, beyond any area to which Costa Rica may be entitled in accordance with the principles of
international law. (Memorial of the Government of Nicaragua, Vol. II, Annex 36, p. 133).
10Application for Permission to Jntervene by the Republic of Costa Rica, p. 2, para. 11; see also CR
2010/12, pp. 30-31, paras. 10-14 (Vargas); CR 2010112,p. 33, para. 4 (Lathrop); CR 2010115, p. 17, para.
18 (Lathrop); CR2010/15, p. 18, para. 3 (Ugalde).

37. Finally, Costa Rica reiterates that it has complied in good faith with the 1977

Treaty, that it will continue to do so, and that it does not seek any particular outcome

from this case in relation to this Treaty.

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