A NNEX TO N ICARAGUA S COMMENTS ON THE RESPONSE OF THE C OSTA R ICAN
G OVERNMENT TO THE QUESTION PUT BY JUDGE B ENNOUNA
Territorial and Maritime Dispute (Nicaragua v. Colombia)
Application for permission to intervene filed by the Republic of Costa Rica
[Translation by the Registry]
1. At the end of the public hearing held on Friday 15October2010, JudgeBennouna
addressed the following question to Costa Rica:
“Costa Rica has indicated to the Court that it has still not ratified the maritime
delimitation treaty in the Caribbean Sea, which it signed with Colombia on
17March1977, ‘in consideration of Nicaragua ’s continuous requests that Costa Rica
not ratify the treaty until the dispute with Colo mbia has been resolved . . . [and] acting
out of good neighbourliness’ (CR 2010/12, p. 22, para. 8 (Brenes)).
Has Costa Rica postponed ratification of the Treaty of 17 March1977 pending
the Court’s judgment on the merits, in th e case before it, between Nicaragua and
Colombia?
In other words, is Costa Rica waiting fo r the Court’s judgment on the merits for
clarification of certain notions mentioned in the same verbatim record (CR2010/12,
p.35, para.13 (Lathrop)), on the basis of which the 1977 Treaty was supposedly
1
negotiated and signed?”
2. The Costa Rican Government’s response to the question put by JudgeBennouna 2
underscores the ambiguity which characterized th e application for permission to intervene and
Costa Rica’s oral argument during the hearings in the incidental proceedings which took place
between 11 and 15 October, not least because, in an swer to a single question, Costa Rica responds
3
in the affirmative to what i4 considers to be the “first formulationand in the negative to what it
considers to be the “second” .
3. With regard to the “first formulation of the question”, Costa Rica affirms that it has
postponed ratification of the 1977Treaty “because the ongoing dispute between the Parties,
Nicaragua and Colombia, requires decision by this Court”, and refers to a statement by its Minister
5
for Foreign Affairs . That statement must be put in its context, something which Costa Rica is
careful to avoid doing.
4. When it was made, almost 24years had p assed since the signing of the Treaty, and the
successive and repeated attempts by the Costa Rican Government to obtain the necessary
authorization from the Legislative Assembly for its ratification had failed. Therefore, it is
unreasonable to assert that the present case (or even the prospect of it) could have been the cause of
the non-ratification of the Treaty.
1CR 2010/17, p. 27 (Bennouna).
2Costa Rica’s written response to the question put by Judge Bennouna, 22 Oct. 2010.
3
Ibid., para. 2.
4Ibid., para. 5.
5Ibid., para. 2. - 2 -
5. According to Minister for Foreign Affairs Gonzalo Facio, who signed the 1977 Treaty, the
latter was simply meant to serve as an incentive (“acicate”) to conclude anoth6r treaty concerning
the maritime boundaries between the two countries in the Pacific , because it was there that Costa
Rica’s “vital interests” lay . The aim was for its “principal ne ighbour” in the region, Colombia, to
recognize Costa Rica’s sovereignty over the island of El Coco and its full effect in terms of Costa
Rica’s rights over an extensive maritime area of 500,000 square kilometres. The treaty concerning
8
the Pacific, which was expressly described at the outset as additional to that of 1977 , was signed
in 1984, thereby fulfilling the aims of the Cost a Rican Government. The Legislative Assembly,
however, still did not authorize the ratification of the 1977 Treaty.
6. When the Government of Costa Rica submitted a new draft law to the Legislative
Assembly authorizing the ratification of both tr eaties, taken together, it met with repeated
objections, leading to an unfavourable report by the Commission on Legal Affairs and, ultimately,9
10
the permanent shelving of the draft law in February 2000 , 16years after the parliamentary
procedure had begun.
11
7. The “formal burial” of the draft, as it was described by one parliamentary spokesman ,
forced the Governments of Costa Rica and Colombia to sever the link between the treaties of 1977
12 13
and 1984 . This enabled the 1984 Treaty to enter into force on 20February2001 . The
statement by Foreign Minister Rojas referred to by Costa Rica was made the following day . 14
8. The fact remains that the Legislative Assembly referred the draft law authorizing
ratification of the 1977 Treaty back to the Government in September2001; since then, the
Government has made no further attempt to resubmit it to the Legislative Assembly, as stated in the
response to the question put by Judge Bennouna . 15
9. The Government of Costa Rica has chosen not to explain why the Costa Rican Legislative
Assembly rejected the successive attempts by the Government to secure ratification.
10. In any case, that refusal had nothing to do with the resolution of the dispute between
Nicaragua and Colombia. When, on 5 April 199 4 (9th session), the Commission on Legal Affairs
of the Costa Rican Legislative As sembly issued an unfavourable report on the ratification of the
1977 Treaty, it recommended that Costa Rica “rene gotiate the treaty, so as to achieve more
Legislative Assembly, Commission on Legal Affairs, 24th session (27Aug.1985), file No.9927, p.197
(Ann. 3).
These were the words of Mr.ManuelFreerJiménez, who negotiated both treaties for Costa Rica, Legislative
Assembly, Commission on Legal Affairs, 18th session (23 July 1985), file No. 9927, p. 123 (Ann. 2).
In the foreword to the draft law authorizing ratification of the 1977 and 1984 Treaties, it is stated that the
additional treaty of 1984 “constitutes the first international recognition of the marine and submarine spaces which Costa
Rica claims on the basis of the island of El Coco” and that “[t]he said treaty guarantees at international level the
uncontested exercise of our jurisdiction in an area of the Pacific Ocean of half a million square kilometres, recognized by
our principal neighbour in that maritime area, Colombia”, file No. 9927, p. 3 (Ann. 1).
9
Legislative Assembly, Commission on Le gal Affairs, 99th session (5April1994), file No.9927, pp.418-419
(Ann. 5).
10
Legislative Assembly, Order of 10 February 2000, file No. 9927 (Ann. 6).
1File No. 9927, 156th session (16 Mar. 1993), p. 368 (Ann. 4).
1Diplomatic notes of 29 May 2000 (see Colombia’s Rejoinder, Ann. 3).
1The instruments of ratification were exchanged on 20 February 2001.
14
Costa Rica’s written response to the question put by Judge Bennouna, 22 Oct. 2010, para. 2.
15
Ibid., paras. 2 and 3. - 3 -
favourable conditions in the Caribbean, given the force of international precedent which Colombia
attributes to our recognition of its sovereignty over the island of San Andrés” . 16
11. By contrast with its response to the “fir st formulation” of Judge Bennouna’s question, in
its response to the “second formulation” of the que stion, Costa Rica denies that it is “waiting for
the Court’s judgment on the merits for clarification of cer17in notions . . . on the basis of which the
1977 Treaty was supposedly negotiated and signed” .
12. Costa Rica reiterates that these “notions”, i.e., that the 82°W meridian established the
maritime boundary between Nicaragua and Colombia and that the islands of the Archipelago of
San Andrés, under Colombian sovereignty, were entitle d to full effect on the maritime areas, were
presented merely “to demonstrate that Costa Ri ca believed — at the time the 1977 agreement was
concluded — that Colombia was the State with whic h delimitation was required in this part of the
Caribbean”, but do not constitute, any more than the 1977 Treaty, “an interest of a legal nature that
may be affected by the decision in this case, per se”. The Costa Rican Government insists on the
fact that its interest of a legal nature which may be affected by the Court’s decision is the “interest
in the exercise of its sovereign rights and jurisdic tion in the maritime area in the Caribbean Sea to
18
which it is entitled under international law by virtue of its coast facing on that sea” .
13. Both in its Written Observations on the a pplication for permission to intervene filed by
Costa Rica and during the hearings, Nicaragua h as shown not only that the “notions” on which
Costa Rica claimed to base its argument were erroneous, but also that Costa Rica was well aware of
19
that fact .
14. The disagreement between Nicaragua and Colombia over the interpretation of the
82°Wmeridian clearly pre-dates the claim that the Bárcenas-Meneses-Esguerra Treaty of 1928
was invalid, and Costa Rica knew perfectly well that Nicaragua denied that the said meridian was
the boundary of its maritime area s facing Colombia, a position which th is Court agreed with in its
20
Judgment of 13 December 2007 .
15. Moreover, the presumption that the San Andrés Archipelago had full effect in the
delimitation of the maritime areas did not reflect any position of principle, other than the aim being
pursued by Costa Rica, namely, the according of th e same effect by Colombia to the uninhabited
island of El Coco, under Costa Rican sovereignty, in the Pacific.
___________
16
Legislative Assembly, Commission on Legal Affairs, 99th session (5 Apr. 1994), file No. 9927, p. 419 (Ann. 5).
17Costa Rica’s written response to the question put by Judge Bennouna, para. 5.
18Application for permission to intervene, para.11; Costa Rica’s written respons e to the question put by
Judge Bennouna, para. 5.
19Written Observations of the Republic of Nicaragua on th e application for permission to intervene filed by the
Republic of Costa Rica, 26 May 2010, paras. 21-22; CR 2010/13, pp. 13-14, paras. 15-16 (Argüello Gómez).
20Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports
2007, p. 867, para. 115. A NNEX 1
Treaty on the Delimitation of Marine and Submarine Spaces and Maritime Cooperation
between the Republic of Colombia and the Republic of Costa Rica,
additional to that signed at San José on 17 March 1977
Foreword, p. 3 (extract)
Considerations regarding the Treaty
The delimitation of the maritime boundaries with the Republic of Colombia obtained
through the signing of this additional treaty ma y be considered of great legal and political
significance for our country, since it constitutes the first international recognition of the marine and
submarine spaces which Costa Rica claims on the basis of the island ofEl Coco. The said treaty
guarantees at international level the uncontested eercise of our jurisdiction in an area of the
Pacific Ocean of half a million square kilometresrecognized by our principal neighbour in that
maritime area, Colombia.
___________ - 2 -
A NNEX 2
Minutes of the 18th ordinary session of the Permanent Commission
on Legal Affairs held on 23 July 1985 at 1.45 p.m.
Present: Herrera Araya, Chairman; Guevara Barahona, Secretary; Malavassi Vargas,
Menéndez Chaves, Murillo Rodriguez, Valverde Rodriguez and Villanueva Badilla.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
p. 123 (extract)
Mr. FREER JIMÉNEZ :
It would appear that Colombia had reserva tions, because — in my opinion — it had no real
wish to attribute such large are as to an island as small as that of El Coco . That is what prompted
me to advise Mr. Fernando Volio to withdraw from the Assembly a treaty with Colombia regarding
the Caribbean, in order to negotiate an additiona l treaty which includes the Pacific, where Costa
Rica’s vital interests lie.
___________ - 3 -
A NNEX 3
Minutes of the 24th ordinary session of the Permanent Commission
on Legal Affairs held on 27 August 1985 at 1.45 p.m.
Present: Herrera Araya, Chairman; Guevara Barahona, Secretary; Malavassi Vargas,
Menéndez Chaves, Murillo Rodriguez, Valverde Rodriguez and Villanueva Badilla.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
p. 197 (extract)
Mr. G ONZALO FACIO S EGREDA :
I admit, however, that it was always my in tention for that to be no more than an incentive to
conclude the treaty in the Pacific, which was the treaty of real interest to us, because it was the way
to obtain recognition, from potential opponents, the exclusive economic zone of the island of
El Coco, which gives us 500,000 square kilometres.
___________ - 4 -
A NNEX 4
Minutes of the 156th session of the Costa Rican Legislative Assembly,
16 March 1993 at 3.59 p.m.
p. 368 (extract)
Mr. C ASTRO R ETANA :
I am happy for this matter to be referred back to the Commission sine die, because it is a way
of formally burying a draft which, in one way or another, would impa ir the sovereignty and
territorial integrity of this country. In owords, it prejudices Articles7 and9 of our Political
Constitution. So I am pleased that the Legislative Assembly has taken this significant and historic
decision today, because this treaty on the delimitation of maritime areas, which was negotiated by
the Executive with the Republic of Colombia, posed a serious threat to our territorial integrity and,
as representatives of the Costa Rican people, it is clear that we could not accept the weakening of
the territorial integrity of our country. Having said that, I am pleased that the draft is being referred
back to the Commission sine die. To be quite clear, what we are doing today as members of the
Assembly is giving a formal burial to a draft law which, as we all know, the friends of the Republic
of Colombia, and in particular its Government, were very keen to see approved.
___________ - 5 -
A NNEX 5
Minutes of the 99th ordinary session of the Permanent Commission
on Legal Affairs held on Tuesday 5 April 1994 at 2.30 p.m.
p. 419 (extract)
SThe ECRETARY , a.i.:
The maritime boundary established in the Ca ribbean Sea under the treaty signed in 1977
does not warrant the approval of this Legisla tive Assembly, for the following reasons, amongst
others: this treaty does not recognize Costa Rica’s entitlement to 200 miles in the Caribbean Sea.
This may be explained by the fact that it was negotiated at a time when the Law of the Sea
Convention had not yet been signed, and therefore the concepts of baselines, the continental shelf
and exclusive economic zones have also not been applied. In terms of procedure, it should be
noted that the Executive previously withdrew the treaty from the Assembly, filing it under
No. 8141. When it was submitted, it had been signe d only by the Minister for Foreign Affairs and
not by the President of the Republic. It would be more appropriate for Costa Rica to renegotiate
the treaty, so as to achieve more favourable co nditions in the Caribbean, given the force of
international precedent which Colombia attributes to our recognition of its sovereignty over the
island of San Andrés.
___________ - 6 -
A NNEX 6
Order of 10 February 2000 by the Costa Rican Legislative Assembly
On this date, the Archives Service shall r eceive from the Secretariat the draft law ratifying
the Treaty on Delimitation of Marine and Sub- marine Spaces and Maritime Cooperation between
the Republic of Costa Rica and the Republic of Colombia, file No.9927, in accordance with
Article 119 of the Rules of the Le gislative Assembly, more than f our years having elapsed since it
was first discussed in the Legislative Assembly.The file consists of two volumes comprising
430 pages.
___________
Nicaragua's comments on Costa Rica's written response to the question put by Judge Bennouna at the end of the hearing held on Friday 15 October 2010, at 5 p.m.