Case Concerning Maritime Delimitation in the Caribbean Sea and the Pacifie Ocean
(Costa Rica v. Nicaragua), joined with the Case Concerning Land Boundary
in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua)
Observations of Costa Rica upon the Report
prepared by the Court-appointed Experts
Pursuant to the Court's communication dated 1 May 2017, reference 148491, in the case
concerning Maritime Delimitation in the Caribbean Sea and the Pacifie Ocean (Costa Rica v.
Nicaragua), which has been joined with the case concerning the Land Boundary in the
Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Costa Rica files herewith its
observations upon the report prepared by the Court-appointed experts dated 30 April
2017.
Costa Rica commends the experts on their professionalism, and the thorough and
conscientious manner in which they have responded to the questions posed to them by the
Court.
Costa Rica takes the opportunity afforded by the Court in arder to make the following
limited observations in respect of a number of specifie points contained in the report.
Ad paragraph 15
Paragraph 15 refers to a temporary channel that was present in the beach at the time of the
December 2016 site visit (located at "point Pch", as denominated by the experts), and
which the experts describe as "draining water from the [Los PortillosjHarbor Head] Jagoon
to the sea". Similar references to water draining from the lagoon to the sea through the
channel are made at paragraphs 19, 34, 101 and 188, as weil as in the text accompanying
Figures 2, 29, 30, and 31.
ln that regard, it is undoubtedly true that the channel was draining excess water from the
Lagoon, which was at an unusually high water lev el at that ti me as a result of the effects of
Hurricane Otto (cf. paragraph 9). ln the interests of completeness, however, Costa Rica
would observe that it is equally true that the channel was also draining water from the
wetlands of Isla Portillos, which at that ti me were flooded, aga in as a result of the unusually
high water levels resulting from that exceptional event. That water from the wetlands was
draining through the channel can be clearly seen in the photograph at Figure 29.
1
Ad paragraphs 25, 27,153 and 161
Paragraph 25 refers to co-ordinates of the "marker found by both Parties in 2003 on the
beach near Los PortillosjHarbor Head Lagoon which they saw on 21 February 2003, and for
which they measured the co-ordinates on 25 November 2003", whilst paragraph 27 and the
caption accompanying Figure 6 also state that the co-ordinates of this marker were
measured by the Parties on 25 November 2003.
ln addition, paragraph 153, in referring to the document entitled "Minute of the Fourth
Technical Meeting of the Sub-Commission on Limits and Cartography (San Juan del Norte,
November 24 to 27, 2003)" submitted by Nicaragua as Annex 15 toits Counter-Memorial in
the Maritime Delimitation case, states that "on 25 November 2003, a marker was located at
Los PortillosjHarbour Head Lagoon", and that on that date it "was measured by both Parties
for 2.50 hours with hand-lteld GPS deviees". Further, both the caption to Figure 56 and
paragraph 161 make reference to the "Markerfound in the beach by the Sub-Commission on
Limits and Cartography on 21 February 2003 and on 25 November 2003" and state that it
"was measured by bath Parties for 2:50 hours with hand-held GPS deviees".
The source of the statements by the experts that measurements of the marker were taken
by both Parties on 25 November 2003 would appear to be the so-called "Minute" submitted
by Nicaragua as Annex 15 to its Counter-Memorial, discussed by the experts at paragraphs
151-156.1n this regard, Costa Rica observes that this "Minute"
a) is not signed by Costa Rica, and does not purport to be an agreed or joint
document;
b) does not contain the co-ordinates of any marker (including those resulting from
the measurements which it states were taken on 25-26 November 2003); and
c) does not contain the co-ordinates of the marker as measured by the Parties on
21 February 2003.
Costa Rica further observes that same Nicaraguan document makes clear that the Costa
Rican delegation was not present on 25 November 2003 at the time when the marker
(which is asserted by the "Minute" to be that previously found on 21 February 2003) was
located and excavations carried out, and further, that the Costa Rican delegation was
likewise not present at 10:00 am wh en measurements were taken of the marker "for 2:50
hours". lnstead, as the "Minute" states, the Costa Rican delegation was only incorporated
much later in the morning, and once constituted thereafter "proceeded ta begin searching
for other landmarks on the right bank of Portillo Lagoon". Th us, if the location of the marker
found was indeed measured on 25 November 2003, those measurements were undertaken
only by Nicaragua, and not by both Parties.
2
For the sake of clarity, Costa Rica notes that, by contrast, the coordinates corresponding to
the marker located on 21 February 2003 were recorded by both Parties on that date. The
coordinates taken by bath Costa Rica and Nicaragua on 21 February 2003, as weil as an
average of their respective measurements, were subsequently recorded in a report
prepared by Nicaragua's INETER dated 23 March 2003,1 and it was those co-ordinates as
recorded in th at report that were provided to the experts for use as a reference for the field
work undertaken on 7 December 2016 during the December 2016 site visit (see
paragraphs 25-28) and which are recorded at paragraph 161 of the report. ln this regard,
Costa Rica recalls that, as the 23 March 2003 report did not form part of the pleadings, and
had not been provided to the experts, the representatives of Costa Rica and Nicaragua
agreed to use only the co-ordinates recorded at page 28 of the report for the purposes of
trying to locate the marker du ring the December site visit, whilst reserving their respective
positions as to the remainder of the report.
Finally, Costa Rica notes that the 23 March 2003 report was also the source of the coordinates
provided by Costa Rica 's IGN in its report of 19 December 2016, which was
submitted to the Court on 21 December 20162 in response to a request for information
from the Registrar of the Court following the first site visit.3
Ad paragraph 101
Paragraph 101 states that "ln the second site visit_ the eastern and western extremities of the
water body of the lagoon were measured at points Ple2 (Fig. 32) and Plew2 (Figs. 33, 34),
respective/y".
Point "Piew2" is not referred to at any other point in the report. Costa Rica assumes that
the reference to point "Plew2" is a typographical error, and that the experts intended to
refer to point "Piw2", (i.e., the point corresponding to the western extremity of the water
body of the lageon). Th at conclusion is supported by the captions to Figures 33 and 34, to
which the text of paragraph 101 cross-refers: both refer to "the western extremity of the
water body of Los PortillosjHarbour Head Lagoon", whilst the caption to Figure 33 also
refers to point "Piw2", the location which is marked on the photo.
1 1NETER, "Technical Report based on the agreements of the First Technical Cartographie Working Session of the
Sub-Commission on Limits and Cartography, held on 16 January 2013, in liberia, Costa Rica", 23 March 2003.
2 Note by Ambassador Sergio Ugalde to the Registrar of the International Court of Justice, reference ECRPB-155-16
of 21 December 2016, and Annex.
3 Note by Phillipe Couvreur, Registrar of the International Court of Justice to Edgar Ugalde Alvarez, Agent of Costa
Rica, reference 147804, 13 December 2016.
3
Ad paragraph 106
At paragraph 106 of the report, the experts describe the existence of "discontinuous coastparalle/
lagoons", which they consider to be "essentially rem nants of the channel-like water
gap that used to exist in recent times between Isla Parti/los and the spit of Los
Portil/osjHarbour Head Lagoon .. .''.ln this regard, the experts make reference to the images
at Figures 41 and 42 of the report.
Costa Rica notes that Figure 41 states that it is a screen capture from the video recording
made by Nicaragua with a drone during the first site visit in December 2016. At that time,
as Figure 41 shows, there were indeed a number of bodies of standing water parallel to the
coast of Isla Portillos.
Costa Rica wishes to point out, however, that the first site visit took place not only during
the rainy season (cf. paragraph 8), and during a period characterised by episodes of he avy
rain (see e.g. paragraphs 27 and 35), but furthermore, that it took place only shortly after
the exceptional event constituted by Hurricane Otto, which resulted in unusually high
water levels of the river, Los PortillosjHarbor Head Lagoon, and the Isla Portillos wetlands
(cf. paragraph 9). As a result, exceptionally large quantities ofwater had been deposited in
the area as a result ofhigh levels of precipitation.
Costa Rica further observes, that, as shawn by Figure 42, the vast majority of the "coastparallel
Jagoons" visible on Figure 41 which had been present during the first site visit had
disappeared by the time of the second site visit in March 2017. Costa Rica thus considers
that these ephemeral bodies of water are not the "remnants" of the "first channel met"
described by the Umpire A.P. Alexander in his First A ward of 30 September 1897.
Finally, Costa Rica observes that, as described by the experts at paragraph 106 and as
depicted in Figure 43, in the western sector of Isla Portillos "there are no lagoons with freestanding
water".
Ad paragraph 139
The first sentence of paragraph 139 states th at: "The markers located at the Initial Point and
the center of Plaza Victoria had iron pipes approximately 40 cm in diameter and 2 rn long
filled with concrete.''
Costa Rica observes that this sentence should more accurately read:
"The reference markers located on the opposite margin of Los Portillos/Harbor Head
Lagoon from the Initial Point and at the center of Plaza Victoria had iron pipes
approxima te/y 40 cm in diameter and 2 m long fi/led with concrete."
4
Costa Rica considers that this should not be controversial. The experts make reference at
paragraph 138 to the reference marker created by Alexander located on the opposite
margin of the lagoon, and both parties have provided identical translations of the relevant
part of Proceedings X of the Demarcation Commission chaired by Alexander, by which the
demarcation of the two reference markers for the Initial Marker was agreed:
"The following type was agreed regarding the markers that will serve as reference
points for the ftrst monument, th at is to say: for the ftrst one on the right margin of the
Harbor Head lagoon, an iron pipe, approximately 40 centimeters in diameter {filled
with concrete) and two meters in /ength, buried one and a hal[ meters and ft/led with
concrete; for the second, in the center of Plaza Victoria in San juan del Norte, the sa me
iron pipe, buried so th at its upper end appears at grou nd leve/''. 4
Ad paragraph 195
Having assessed at paragraphs 193 and 194 the main physical changes that may result
from the current active coastal recession of the coast in the area of Isla Portillos, at
paragraph 195 the experts state that other potential physical changes to take into
consideration in elude the possibility of "sharp deviations in the pa th of the San juan River
(avulsion) ta king advantage of secondary channels (ca nos) located on its right margin in Isla
Portil/os", and the possibility that such an avulsion might take advantage of "the
topographie depression of Los PortillosjHarbour Head Lagoon (i.e. the /agoon might become
the mouth of the river)".
Costa Rica observes in this regard that, as consistently shown by historical maps, and a
comparison of th ose maps with recent satellite imagery, for at !east a century the course of
the lower reach of the San juan River, up to a point just before its mouth, has been
relatively stable from a geomorphological point of view; whilst erosion by the sea has
resulted in significant changes to the location and configuration of the coast, there have
been no corresponding changes significantly affecting the course of the river before it
reaches its outlet into the Caribbean Sea. This is evident from Figure 86.
4 Proceedings of the Costa Rica-Nicaragua Demarcation Commissions (1897 -1900), Proceedings X, translated
and reproduced at Ann. 5 of Nicaragua's Counter-Memorial, Maritime Boundary, and at Ann. 52 of Costa
Rica's Memorial, Land Boundary).
5
Written observations of Costa Rica on the report of the experts