Memorial of Costa Rica

INTERNATIONAL COURT OF JUSTICE LAND BOUNDARY IN THE NORTHERN PART OF ISLA PORTILLOS (COSTA RICA v. NICARAGUA) MEMORIAL OF COSTA RICA 2 MARCH 2017 TABLE OF CONTENTS CHAPTER 1: INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Origin and Scope of the Dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. The Court’s Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 C. Structure of this Memorial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 CHAPTER 2: SOVEREIGNTY ISSUES AND THE REQUESTED DELIMITATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 B. The Relevant Geography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 C. The Judgment of the Court of 16 December 2015 . . . . . . . . . . . . . 18 (1) Sovereignty over the beach of Isla Portillos is res judicata . 19 (2) Only the precise location of the boundary at each end of the sandbar of Harbor Head Lagoon remains open . . . . . . . 28 D. The Legal Materials Relevant to Sovereignty Issues and Delimitation of the Boundary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 CHAPTER 3: NICARAGUA’S NEW BREACH OF COSTA RICA’S TERRITORIAL SOVEREIGNTY . . . . . . . . . . . . . . . . . . 49 A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 B. The Installation of a Military Camp by Nicaragua on the Beach of Isla Portillos. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 C. Nicaragua’s Actions Constitute Breaches of Costa Rica’s Sovereignty and Territorial Integrity, and of the Court’s Judgment of 16 December 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 D. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 SUBMISSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 CERTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 LIST OF ANNEXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 1 CHAPTER 1 INTRODUCTION 1 .1 . On 16 January 2017, Costa Rica instituted the present proceedings . By its Application, Costa Rica requests the Court to determine the precise location of the land boundary separating the Los Portillos/Harbor Head Lagoon sandbar from Isla Portillos, and to adjudge and declare that Nicaragua has violated the sovereignty and territorial integrity of Costa Rica by establishing a new military camp on the beach of Isla Portillos . 1 .2 . The Court, by Order of 2 February 2017, fixed 2 March 2017 as the time limit for the filing of the Memorial of the Republic of Costa Rica in the present case . By the same Order, the Court joined the proceedings in the present case with the case concerning Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) (“Maritime Delimitation case”). This Memorial is filed with the Court in accordance with the Order of 2 February 2017 . A. ORIGIN AND SCOPE OF THE DISPUTE 1 .3 . In November 2010, Nicaragua invaded and occupied Costa Rican territory adjacent to the Caribbean Sea, in the northern area of Isla Portillos . Nicaragua subsequently claimed sovereignty over that area, which had previously been undisputed Costa Rican territory. The Court rejected Nicaragua’s claim of sovereignty in its Judgment of 16 December 2015 in the case concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v . Nicaragua) (“Certain Activities case”) . The Court confirmed that Costa Rica has sovereignty over the “disputed territory”. 1 The “disputed territory” was 1 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica Along the San Juan 2 defined by the Court in its Order of 8 March 2011 on Provisional Measures as … the northern part of Isla Portillos, that is to say, the area of wetland of some 3 square kilometres between the right bank of the disputed cañ o, the right bank of the San Juan River up to its mouth at the Caribbean Sea and the Harbor Head Lagoon .2 1 .4 . While that case remained pending before the Court, Nicaragua established a military camp on the beach of Isla Portillos . Nicaragua’s conduct in doing so, as well as its construction of two new artificial caños on the disputed territory, led Costa Rica to seek and obtain a second Order on Provisional Measures, dated 22 November 2013 . In that Order, the Court declared that the beach formed part of the “disputed territory” and ordered Nicaragua to remove the camp .3 In its Judgment on the merits of 16 December 2015, the Court recalled that the beach where the Nicaraguan military camp was established was situated in the “disputed territory”.4 1 .5 . Sometime after the Order of the Court of 22 November 2013, Nicaragua placed a military camp on the sandbar separating Los Portillos/Harbor Head Lagoon from the Caribbean Sea . Recently, it relocated this military camp to the beach of Isla Portillos, which is Costa Rican territory . River (Nicaragua v. Costa Rica) (hereinafter “Certain Activities case”), Judgment, 16 December 2015, paras 69-70, and 229(1) . 2 Certain Activities case, Request for the Indication of Provisional Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I), p . 19, para 55 . 3 Certain Activities case, Provisional Measures, Order of 22 November 2013, I.C.J. Reports 2013, p . 365, para 46 . 4 Certain Activities case, Judgment, 16 December 2015, para 69 . 3 1 .6 . On 14 November 2016, Costa Rica wrote to Nicaragua to protest the presence of the camp on Costa Rican territory .5 In a response of 17 November 2016, Nicaragua not only refused to remove its camp, but it also made a new claim of sovereignty over “the entire stretch of coast abutting the Caribbean Sea which lies between Harbor Head Lagoon and the mouth of the river”.6 That claim to “the entire stretch of coast” is inconsistent with the Court’s Judgment of 16 December 2015, where it was declared – and is now a matter of res judicata – that the “disputed territory” (which includes the beach between Harbor Head Lagoon and the mouth of the San Juan River) is Costa Rican territory. Moreover, Costa Rica’s concern is that Nicaragua’s recent position forms part of a persistent course of conduct on its part, from its invasion and occupation of (and subsequent claim to) Costa Rican territory in late 2010, to its breach of the Court’s 2011 Order in the Certain Activities case (requiring Costa Rica to obtain a further Order in 2013), and now to its placement of yet another military camp on Costa Rica’s territory,7 in breach of the Court’s Judgment of 2015, and its subsequent claim to that territory . 1 .7 . In these circumstances, and given Costa Rica’s concern about Nicaragua’s persistent course of conduct, Costa Rica attempted to resolve the dispute without delay . In further correspondence, 5 Letter from Costa Rica to Nicaragua, Reference DM-AM-584-16, 14 November 2016, Annex 56 . 6 Letter from Nicaragua to Costa Rica, Reference MRE/DMC/250/11/16, 17 November 2016, Annex 57 (italics in original) . 7 On 24 November 2016, Hurricane Otto seriously affected the area of Isla Portillos and damaged Costa Rica’s police and environmental installations in that area . Costa Rica understands that Nicaragua removed the military camp before Hurricane Otto landed . However, following Hurricane Otto, Nicaragua re-established and continues to maintain a military camp on the beach of Isla Portillos . 4 Costa Rica rejected Nicaragua’s position (noting it was in breach of the Court’s Judgment of December 2015) and reserved its rights .8 Nicaragua did not respond . Given the factual and legal positions adopted by Nicaragua, the futility of further negotiations was apparent, and Costa Rica has therefore been compelled to institute the present proceedings . Taking into account the close link with certain aspects of the dispute in the Maritime Delimitation case, Costa Rica requested, and the Court ordered, joinder of the two cases .9 1 .8 . This dispute between Costa Rica and Nicaragua submitted to the Court by Costa Rica concerns the precise location of the land boundary in the northern area of Isla Portillos, i .e . the boundary separating today the Los Portillos/Harbor Head Lagoon sandbar from Isla Portillos . It also concerns the illegal establishment of a military camp by Nicaragua on the beach of Isla Portillos, a territory belonging to Costa Rica as confirmed by the Court in its Judgment of 16 December 2015 in the Certain Activities case .10 1 .9 . For sake of completeness, Costa Rica notes that, by Order of 31 May 2016 in the Maritime Delimitation case, the Court exercised its power, in accordance with Articles 40 and 50 of its Statute, to obtain an expert opinion . The experts are asked to advise the Court “regarding the state of the coast” between the mouth of the San Juan River and Punta de Castilla, 11 and to 8 Letter from Costa Rica to Nicaragua, Reference DM-AM-629-16, 30 November 2016, Annex 58 . 9 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua), joined with Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua) (hereinafter “Maritime Delimitation case”), Order, 2 February 2017, para 18(2) . 10 Certain Activities case, Judgment, 16 December 2015, paras 69-70, and 229(1) . 11 Maritime Delimitation case, Order, 31 May 2016, para 8 . 5 answer specific questions .12 In order to fulfil their mandate, the two experts appointed by the Court conducted a first site visit in December 2016 and will conduct a second site visit in March 2017. In accordance with the Court’s Order, they will produce a written report on the questions on which they have been asked to advise the Court . Costa Rica will of course provide comments and questions on the experts’ opinion at the appropriate time . B. THE COURT’S JURISDICTION 1 .10 . The Court has jurisdiction over the present dispute in accordance with the provisions of Article 36, paragraph 2, of its Statute, by virtue of the operation of the declarations of acceptance made by Costa Rica, dated 20 February 1973, and by Nicaragua, dated 24 September 1929 . 1 .11 . The Court also has jurisdiction over the present dispute in accordance with the provisions of Article 36, paragraph 1, of its Statute, by virtue of the operation of the American Treaty on Pacific Settlement of Disputes, Bogotá, 30 April 1948, Article XXXI (the Pact of Bogotá) .13 The Parties have expressed their commitment to the Pact of Bogotá through the Pact of Amity, Washington, 21 February 1949, Article III .14 C. STRUCTURE OF THIS MEMORIAL 1 .12 . The structure of this Memorial is as follows: 12 Maritime Delimitation case, Order, 31 May 2016, para 10(2) . 13 30 United Nations Treaty Series 55 . Both Costa Rica and Nicaragua are parties to the Pact of Bogotá . 14 1465 United Nations Treaty Series 221 . 6 (a) Chapter 2 depicts the current geography in the relevant area, explains why the repeated Nicaraguan territorial claim to the beach of Isla Portillos falls within the scope of the principle of res judicata, and addresses the legal basis of Costa Rica’s sovereignty and the boundary requested; and (b) Chapter 3 addresses Nicaragua’s new breach of Costa Rica’s territorial sovereignty through its establishment and maintenance of a military camp on the beach of Isla Portillos . (c) This Memorial concludes with Costa Rica’s Submissions. 1 .13 . Attached to this Memorial are 26 documentary annexes . A list of the annexes is provided immediately after Costa Rica’s Memorial, and the annexes are produced in this same volume (including Spanish originals, where required) . Given that this case has been joined with the Maritime Delimitation case, and Costa Rica has submitted 45 annexes in that case, Costa Rica has commenced its numbering of Annexes to this Memorial at Annex 46 . 7 CHAPTER 2 SOVEREIGNTY ISSUES AND THE REQUESTED DELIMITATION A. INTRODUCTION 2 .1 . The present Chapter addresses the legal background and scope of the current dispute . It will demonstrate that the task of the Court consists only in the determination of the location of the boundary at each end of the currently existent sandbar seaward of Los Portillos/Harbor Head Lagoon, insofar as this sandbar remains above water at all times, and therefore is capable of appropriation . 2 .2 . This Chapter consists of three sections . Section B describes the geography relevant to the present dispute, particularly as it exists today . Section C discusses the Judgment of the Court of 16 December 2015 in the Certain Activities case: first explaining that Costa Rican sovereignty over the beach of Isla Portillos is res judicata and consequently the new territorial claim by Nicaragua is inconsistent with it . Part B also analyses paragraph 70 of that Judgment in order to explain why only the abovementioned location of the boundary must be determined by the Court . Section D addresses the legal materials relevant to certain sovereignty issues and the delimitation of the requested boundary . It further explains that, considering that the coastal geography in this area is likely to continue to undergo change, describing the requested boundary with specific coordinates is not appropriate, and rather a verbal description is sufficiently precise, and would allow the line to change with the geography, as envisioned in the Second Alexander Award . B. THE RELEVANT GEOGRAPHY 2 .3 . The geography in the vicinity of this dispute consists of the coastal zone of Costa Rica’s Isla Portillos, including the mouth 8 of the San Juan River, the beach of Isla Portillos, the waters of Los Portillos/Harbor Head Lagoon, and the sandbar separating the Lagoon from the Caribbean Sea . Isla Portillos is bounded to the west by the San Juan River and to the north by the Caribbean Sea . The U-shaped Los Portillos/Harbor Head Lagoon is surrounded by Isla Portillos, except to the northeast where it faces the Caribbean Sea and is separated from the sea by a narrow sandbar (see Figure 2 .1) . 9 Figure 2.1: Satellite Image of 3 October 2016 10 2 .4 . Costa Rican and Nicaraguan territory in this area was delimited by the 1858 Treaty of Limits which established that “the dividing line between the two Republics, starting from the Northern Sea [the Caribbean Sea], shall begin at the end of Punta de Castilla, at the mouth of the San Juan de Nicaragua river, and shall run along the right bank of said river” . 15 At that time the San Juan River emptied into the Bay of San Juan del Norte before, in turn, emptying into the sea . 2 .5 . Substantial geomorphologic change occurred at and around the mouth of the San Juan River between the signing of the 1858 Treaty of Limits and the work of Alexander in the late 1890s . The configuration of the river, bay, various sandy features, and the sea at the end of the 19th Century is illustrated on the sketch map attached to the First Alexander Award, which is reproduced here at Figure 2 .2 . Several things may be noted on Alexander’s map . By the 1890s, the attenuated sand spit that created the bay had broken apart leaving a sandy feature to the northwest of Isla Portillos labelled “Old Is. of San Juan” and leaving a narrow finger of sand protruding from Costa Rica’s territory east of Harbor Head . The First Alexander Award distinguished between this ephemeral “bank of sand”16 and “the northwestern extremity of what seems to be the solid land, on the east side of Harbor Head Lagoon”. 17 Between these sandy features an opening connected what came to be known as Harbor Head directly with 15 Treaty of Limits between Costa Rica and Nicaragua (Cañas-Jerez), San José, 15 April 1858 (hereinafter “1858 Treaty of Limits”), Maritime Delimitation case, CRM Annex 1, Article II . 16 First Award of the Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, San Juan del Norte, 30 September 1897 (hereinafter “First Alexander Award”), Annex 48, p . 220 . 17 Ibid . 11 the sea. The San Juan River (the “river proper”18) can be seen to flow via an eastern channel into Harbor Head on its way to the sea . This is the channel referred to in the Second Alexander Award as “the first channel met” when tracing the boundary along the right/southern bank from Harbor Head toward the San Juan River .19 On Alexander’s map that channel runs between Isla Portillos on the right/southern bank and the Old Island of San Juan on the left/northern bank . Figure 2.2: Sketch map attached to the First Alexander Award 2 .6 . The configuration of the river, bay and coast in this area has continued to change during the 20th Century and into the early 18 Second Award of the Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, San Juan del Norte, 20 December 1897 (hereinafter “Second Alexander Award”), Annex 49, p . 224 . 19 Ibid . 12 part of the 21st Century . Both Costa Rica’s official IGN and Nicaragua’s official INETER maps from 1988 show the last vestiges of a channel connecting the San Juan River with Harbor Head Lagoon .20 On the 1988 maps the channel is formed by Isla Portillos (the right/southern bank), as it has been since the late 1890s, and by an exceedingly attenuated bank of sand stretching from the northeast corner of Harbor Head Lagoon across Isla Portillos (the left/northern bank). Nicaragua’s official INETER map from 2011 (based in part on 2010 satellite imagery) illustrates the continuing erosion and disappearance of most of the bank of sand that formed the left/northern bank of the channel . On the 2011 Nicaraguan map that bank of sand has been reduced to a short protrusion stretching across the front of Los Portillos/Harbor Head Lagoon . The complete erosion of the left/northern bank of the channel has resulted in the elimination of any channel connecting the River with the lagoon, and, as illustrated on Nicaragua’s 2011 map, Isla Portillos has emerged as coastal territory with an unobstructed coastal front on the Caribbean Sea, irrespective of the accuracy of its depiction of the northern part of Isla Portillos then claimed by Nicaragua . The relevant excerpts of the 1988 and 2011 INETER maps are shown at Figure 2 .3 . 20 The sources listed for the INETER 1988 map indicates that it was compiled in 1960 . 13 Figure 2.3: INETER San Juan del Norte Cartographic Sheet 1:50000 1988 and 2011, Detailed area 1988 2011 14 2 .7 . These trends have continued as illustrated by a satellite image from 3 October 2016 (see Figure 2 .1 above) which shows the current coastal configuration in the area . Several things can be seen on this image . (a) First, the San Juan River clearly flows directly into the Caribbean Sea . (b) Second, the channel that once connected the River with the lagoon has disappeared completely with the total erosion of what once formed the left/northern bank of that channel .21 (c) Third, Los Portillos/Harbor Head Lagoon is now closed by a narrow sandbar stretching between the solid land of Isla Portillos on the east side of the Lagoon and the solid land of Isla Portillos on the west side of the Lagoon . (d) Fourth, the entire stretch of the coast of Isla Portillos from the mouth of the San Juan River to Los Portillos/Harbor Head Lagoon abuts directly on the Caribbean Sea . 2 .8 . As a result of these changing geographic circumstances Costa Rica’s Isla Portillos is now coastal territory with an unobstructed projection into the Caribbean Sea, and the land boundary between the Parties now meets the Caribbean coast in three places . The primary intersection of the land boundary with the sea, the land boundary terminus, is on the right bank of the San 21 The Court has asked for an expert opinion to answer, inter alia, “Is there a bank of sand or any maritime feature between the points referred to in subparagraphs (a) and (b) above?”: case, Order, 31 May 2016, para 10(2) . Based on site visits, aerial photography and satellite imagery Costa Rica is confident that the experts will find no bank of sand or any other feature seaward of Costa Rica’s Isla Portillos. Maritime Delimitation 15 Juan River at its mouth where the land boundary separates Costa Rica’s land territory (here, Isla Portillos) from Nicaragua’s waters of the San Juan River .22 This location is labelled “A” on the map at Figure 2 .4 . As with other features along this coast, the sandspit that extends to the northwest at the mouth of the river is prone to changes in its shape and size . For example, on Nicaragua’s 2011 map, the sandspit extends over 500 metres from the line of vegetation . On the 3 October 2016 satellite image, the sandspit extends over 600 metres from the line of vegetation . At times the sandspit has been significantly longer and at other times significantly shorter . 23 Nonetheless, the primary intersection of the land boundary with the sea is at the northwestern extremity of the territory of Isla Portillos where the river meets the sea .24 The “A” symbol has been placed on the sandspit only to indicate the general location of this primary intersection . It is not intended to identify a specific point . 22 1858 Treaty of Limits, Maritime Delimitation case, CRM Annex 1, Article II . 23 Measurements taken during the experts’ site visit in December 2016 indicate that, at that time, the sandspit was significantly shorter than it was in early October 2016 when the satellite image used to create this map was taken . 24 The primary land boundary terminus is distinct from the starting point of the maritime boundary in the Caribbean which Costa Rica defined as a point “at the base of the sand spit extending northwest from Isla Portillos, because no reliable basepoints can be derived from this ephemeral, low-lying feature”: Maritime Boundary case, CRM, para 4 .15 . The distinction between the land boundary terminus point and the starting point of the maritime delimitation results in Costa Rican coastal territory (the sandspit) with no maritime projection . 16 Figure 2.4: The Land Boundary on the Caribbean Coast (Based on 3 October 2016 Satellite Image) 17 2 .9 . The two other points where the land boundary between Costa Rica and Nicaragua would meet the sea are associated with the vestigial Los Portillos/Harbor Head Lagoon sandbar and the Ushaped land boundary separating the Lagoon from Isla Portillos . Those locations are labelled “B” and “C” on Figure 2.4 and are situated at the northwestern and northeastern limits of Los Portillos/Harbor Head Lagoon. As with the “A” symbol, the “B” and “C” symbols have been placed at the ends of the sandbar only to indicate the general location of these secondary intersections . They are not intended to identify specific points . 2 .10 . Between A and B is a nearly three kilometre-long stretch of the coast of Costa Rica’s Isla Portillos consisting of heavily vegetated wetland contiguous with a sandy beach which slopes to meet the Caribbean Sea at the low water line . The width of the beach between the vegetation line and the low water line varies from less than one metre to approximately 100 metres, having been nearly completely eroded in places . Between B and C is the narrow, currently approximately 750 metre-long sandbar that currently closes Los Portillos/Harbor Head Lagoon and separates it from the sea . This low-lying sandbar varies in width from 25 to 75 metres . This sandbar provides a tenuous separation between the waters of the Lagoon and the sea, and it is sometimes breached as seen in the photograph from June 2012 at Figure 2 .5 . East of location C, the coast of Costa Rica’s Isla Portillos resumes and is similar in its characteristics to the coast between A and B . 18 Figure 2.5: Laguna Los Portillos/Harbor Head Lagoon 10 June 2012, showing sandbar breach C. THE JUDGMENT OF THE COURT OF 16 DECEMBER 2015 2 .11 . This section focuses on paragraphs 69 and 70 of the 2015 Judgment in order to demonstrate (1) the res judicata character of the decision of the Court concerning Costa Rican sovereignty over the beach of Isla Portillos, (2) and that only the determination of the exact location of the boundary separating each end of the Los Portillos/Harbor Head Lagoon sandbar from the beach of Isla Portillos forms part of the task of the Court with regards to the first aspect of Costa Rica’s application.25 25 The unlawful establishment and maintenance of a military camp by Nicaragua in the beach of Isla Portillos is discussed in Chapter 3 of this Memorial . 19 1. Sovereignty over the beach of Isla Portillos is res judicata 2 .12 . The Court is well aware of the facts which occurred in the northern area of Isla Portillos that led Costa Rica to institute proceedings against Nicaragua and to request the indication of provisional measures on 18 November 2010 . Nicaragua invaded and occupied that Costa Rican territory, constructed an artificial caño and subsequently claimed sovereignty over that area . The Court indicated provisional measures in its Order of 8 March 2011, prohibiting the parties from introducing personnel, with the exception of Costa Rican personnel in charge of protection of the environment, in what the Court described as the “disputed territory”. The “disputed territory” was defined by the Court in that Order as: …the northern part of Isla Portillos, that is to say, the area of wetland of some 3 square kilometres between the right bank of the disputed cañ o, the right bank of the San Juan River up to its mouth at the Caribbean Sea and the Harbor Head Lagoon .26 2 .13 . Disregarding that Order, Nicaragua established a military camp on the beach of Isla Portillos and constructed two new artificial caños in the “disputed territory” in 2013. This Nicaraguan conduct led Costa Rica to request new provisional measures . In the course of the oral hearings relating to this new request, Nicaragua claimed sovereignty over the beach of Isla Portillos on grounds independent of its “claim” of the course of the boundary running along the southern bank of the caño it constructed in 2010 . According to Nicaragua, the beach of Isla 26 Certain Activities case, Provisional Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I), p . 19, para 55 . 20 Portillos did not form part of the “disputed territory” as defined by the Court’s Order of 8 March 2011 . 2 .14 . The Court summarised the Nicaraguan claim of sovereignty over the beach in its Order on Provisional Measures of 22 November 2013 as follows: Nicaragua argues that it has the right to station troops, or anyone else, on what it describes as a sand bank running along the beach in front of the disputed territory . In response to a question from a Member of the Court, Nicaragua states that it understands the beach north of the two new caños to be “the sand bank, or island, that has always been considered part of Nicaraguan undisputed territory”.27 2 .15 . The Court rejected Nicaragua’s claim in its Order on Provisional Measures of 22 November 2013 in the following terms: Nicaragua acknowledges the presence of its military encampment on the beach north of the two new caños which it understands to be a sand bank (see paragraph 42 above) . The Court considers however that, contrary to what Nicaragua alleges, this encampment is located on the beach and close to the line of vegetation, and is therefore situated in the disputed territory as defined by the Court in its Order of 8 March 2011 (see paragraph 44 above) . 28 2 .16 . In its 2015 Judgment on the merits, the Court made clear that the beach where the Nicaraguan encampment was established was 27 Certain Activities case, Provisional Measures, Order of 22 November 2013, I.C.J. Reports 2013, p . 364, para 42 . 28 Ibid ., p . 365, para 46 . 21 situated on the “disputed territory”. 29The relevant paragraph of the Court’s Judgment of 16 December 2015 provides as follows: 69 . Since it is uncontested that Nicaragua conducted certain activities in the disputed territory, it is necessary, in order to establish whether there was a breach of Costa Rica’s territorial sovereignty, to determine which State has sovereignty over that territory. The “disputed territory” was defined by the Court in its Order of 8 March 2011 on provisional measures as “the northern part of Isla Portillos, that is to say, the area of wetland of some 3 square kilometres between the right bank of the disputed caño, the right bank of the San Juan River up to its mouth at the Caribbean Sea and the Harbor Head Lagoon’ (I.C.J. Reports 2011(I), p . 19, para . 55) . The caño referred to is the one which was dredged by Nicaragua in 2010 . Nicaragua did not contest this definition of the “disputed territory”, while Costa Rica expressly endorsed it in its final submissions (para . 2 (a)) . The Court will maintain the definition of “disputed territory” given in the 2011 Order . It recalls that its Order of 22 November 2013 indicating provisional measures specified that a Nicaraguan military encampment “located on the beach and close to the line of vegetation” near one of the caños dredged in 2013 was “situated in the disputed territory as defined by the Court in its Order of 8 March 2011” (I.C.J. Reports 2013, p . 365, para . 46) .30 2 .17 . In the operative part of its 2015 Judgment, the Court: 29 Certain Activities case, Judgment, 16 December 2015, para 69 . 30 Ibid . 22 Finds that Costa Rica has sovereignty over the “disputed territory”, as defined by the Court in paragraphs 69-70 of the present Judgment . 31 2 .18 . It follows from paragraphs 69 and 229, operative part (1), of the Court’s 2015 Judgment, that the beach of Isla Portillos belongs to Costa Rica . This decision possesses the force of res judicata, as reflected in Articles 59 and 60 of the Court’s Statute. In the case concerning the Delimitation of the continental shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan coast, referring to the meaning and scope of res judicata, the Court held that “[t]he Parties agree that the principle of res judicata requires an identity between the parties (personae), the object (petitum) and the legal ground (causa petendi) . They likewise accept that this principle is reflected in Articles 59 and 60 of the Statute of the Court”.32 The Court went on, stating that: …[i]t is not sufficient, for the application of res judicata, to identify the case at issue, characterized by the same parties, object and legal ground; it is also necessary to ascertain the content of the decision, the finality of which is to be guaranteed . The Court cannot be satisfied merely by an identity between requests successively submitted to it by the same Parties; it must determine whether and to what extent the first claim has already been definitively settled . 33 31 Ibid ., para 229 (1) (italics in original) . 32 Question of the delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan coast (Nicaragua v. Colombia), Preliminary Objections, Judgment, 17 March 2016, para 55 . 33 Ibid., para 59 . 23 2 .19 . In the following paragraphs, Costa Rica submits that the current Nicaraguan claim falls within the scope of the principle of res judicata as recently defined by the Court . 2 .20 . As mentioned above, Costa Rica protested the recent establishment of a Nicaraguan military camp on the beach of Isla Portillos, about 100 metres beyond the western limit of the Los Portillos/Harbor Head Lagoon sandbar .34 In its letter of 14 November 2016, Costa Rica provided Nicaragua with photographs which without any doubt show that the protested military camp is on the beach of Isla Portillos .35 In its response of 17 November 2016, Nicaragua rejected Costa Rica’s protest and (wrongly) alleged that …both countries have always considered as part of Nicaraguan territory not only the sandbar in front of Harbor Head Lagoon but also the entire stretch of coast abutting the Caribbean Sea which lies between Harbor Head Lagoon and the mouth of the river . 36 2 .21 . In an attempt to conceal its advancement of a claim of sovereignty that was already rejected by the Court in 2015, Nicaragua deliberately employed wording in its note of 17 November 2016 similar to that of paragraph 70 of the 2015 Judgment .The sub-section below will demonstrate that paragraph explain that Nicaragua’s claim to the beach of Isla Portillos is 70 cannot be read in any way as undermining the decision of the Court in paragraph 69 of its Judgement that, and as matter of 34 Letter from Costa Rica to Nicaragua, Reference DM-AM-584-16, 14 November 2016, Annex 56 . 35 See Annexes 3 and 4 to the Letter from Costa Rica to Nicaragua, Reference DM-AM-584-16, 14 November 2016, Annex 56 . 36 Letter from Nicaragua to Costa Rica, Reference MRE/DMC/250/11/16, 17 November 2016, Annex 57. res judicata, the beach of Isla Portillos is Costa Rican . In order to 24 precluded by res judicata, it is useful to recall here the discussion of the matter in the Certain Activities case . This discussion occurred twice: first, during the second request for provisional measures in 2013 and second, at the oral hearings on the merits in 2015 . 2 .22 . During the oral hearings concerning the new Costa Rican request for provisional measures in 2013, the Agent of Nicaragua, referring to the installation of a military camp in the beach of Isla Portillos during the construction of two new caños, advanced the following contention: Costa Rican counsel also added that the installations placed by Nicaragua in this area had to be removed . There are no installations in the territory in dispute put up by the Government of Nicaragua . The references made by Costa Rican counsel to the installations along the sandbank running along the beach in front of Harbor Head Lagoon and of the coastal area of the territory in dispute . This area has never been in dispute .37 (Emphasis added .) 2 .23 . Stressing this position, Counsel for Nicaragua asserted during the same audience: Mr . Ugalde displayed this satellite photograph, indicating the location of a Nicaraguan military detachment (at the very top of the screen) encampment . [This is at tab 10 .] But this one is on the beach adjacent to the Caribbean Sea . This is outside the disputed area, on land that Costa Rica has consistently recognized - at least until yesterday - as belonging to Nicaragua .38 (Emphasis added .) 37 CR 2013/25, p . 31, para 15 (Argüello) (footnote omitted) . 38 CR 2013/25, p . 29, para 44 (Reichler) . 25 2 .24 . The same Counsel referred to the area in which the military camp was established by Nicaragua as the “barrier beach”.39 2 .25 . At the oral phase on the merits, Nicaragua’s Agent, referring to the position of Costa Rica that only the sandbar closing Los Portillos Lagoon appertained to Nicaragua insofar as it is capable of appropriation by a State, asserted the following: Professor Kohen indicated that the part of the surrounding feature (sandbank) located between Harbor Head Lagoon and the sea appertained to Nicaragua . We will say some more on this point when we respond to Judge Donoghue’s question. Nicaragua’s position is that the whole area is part of its territory . 40 (Emphasis added .) 2 .26 . The Agent of Nicaragua went on, contending that the northern part of Isla Portillos is what used to be the San Juan Island during the 19th century, an evidently unsustainable claim which was not even attempted to be seriously proven. In his own words: “the island of San Juan is located in the area in dispute and is indisputably Nicaraguan territory”.41 In his speech, considered by the Agent to be the Nicaragua’s position with regard to the questions raised by Judges Yusuf and Donoghue, Ambassador Argüello explained the alleged Nicaraguan sovereignty over the northern part of Isla Portillos, including the beach of Isla Portillos, by saying: I will not try to pontificate to the Court on the legal consequences emanating from the channel separating the island of San Juan from the mainland having 39 CR 2013/25, p . 29, para 45 (Reichler) . 40 CR 2015/15, pp . 10-11, paras . 4-5 (Argüello) . 41 CR 2015/15, p . 16, para 31(a) (Argüello) . 26 diminished in size substantially or having totally disappeared . It is generally accepted that when a watercourse forming the limit between two sovereigns disappears, then the border between both areas continues to follow the original channel . So the land that comprised the Nicaraguan island of San Juan is still there, it still appertains to Nicaragua, and it is possible to establish its location on the ground .42 2 .27 . The answer of Nicaragua to the question raised by Judge Donoghue concerning the “sandy feature lying between the Caribbean Sea and the body of water known as Harbor Head Lagoon or Laguna Los Portillos” was even more specific in its claim of the beach of Isla Portillos . It included the following statement, claiming that the referred sandy feature extends beyond Los Portillos/Harbor Head Lagoon, i .e . including the beach of Isla Portillos: The present feature extends from the border area marked by Alexander at the entrance of Harbor Head Lagoon to Isla de San Juan on Nicaraguan territory [Tab 14a on] . The evolution of this feature can be appreciated in this map drawn by the Binational Territorial Commission in 1897 where we can see the sandbar extending from the island of San Juan in the direction of the sandbank extending from Punta de Castilla . These banks have united and for more than a hundred years have been in the situation we at present appreciate .43 2 .28 . It is apparent that what Nicaragua calls “Isla de San Juan” and the sandy feature, and considers them to be Nicaraguan territory, Nicaragua already claimed sovereignty over this beach in the is precisely the northern part of Isla Portillos and its beach . 42 CR 2015/15, p . 15, para 26 (Argüello) . 43 CR 2015/15, pp . 23-24, para 60, point 3 (Argüello) . 27 Certain Activities case . It lost its case . The Court decided otherwise . It declared that the beach is Costa Rican territory . 2 .29 . If Nicaragua persists in its claim to the beach of Isla Portillos, it will be a claim concerning the same parties (Costa Rica and Nicaragua), the same object (the beach of Isla Portillos, as part of the “disputed territory”) and the same ground (the different titles applicable to the boundary between the two countries: the 1858 Treaty of Limits, the Cleveland Award and the Alexander Awards), which has already been definitively settled by the 2015 Judgment . Such a claim should be declared inadmissible on the basis that it is res judicata . 2 .30 . The Court had the opportunity to stress the vital importance of the principle of res judicata in the following manner: The fundamental character of that principle appears from the terms of the Statute of the Court and the Charter of the United Nations . The underlying character and purposes of the principle are reflected in the judicial practice of the Court . That principle signifies that the decisions of the Court are not only binding on the parties, but are final, in the sense that they cannot be reopened by the parties as regards the issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose .44 2 .31 . The Court went on explaining the role and purposes of res judicata as follows: 44 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p . 90, para 115 . 28 Two purposes, one general, the other specific, underlie the principle of res judicata, internationally as nationally . First, the stability of legal relations requires that litigation come to an end. The Court’s function, according to Article 38 of its Statute, is to “decide”, that is, to bring to an end, “such disputes as are submitted to it”. Secondly, it is in the interest of each party that an issue which has already been adjudicated in favour of that party be not argued again . Article 60 of the Statute articulates this finality of judgments . Depriving a litigant of the benefit of a judgment it has already obtained must in general be seen as a breach of the principles governing the legal settlement of disputes .45 2 .32 . Costa Rica is entitled to see that Nicaragua respects the final and binding Judgment of the Court concerning Costa Rica’s sovereignty over the northern part of Isla Portillos, including its beach, and that Nicaragua consequently respects Costa Rica’s territorial sovereignty . Any attempt at reopening this unfortunate dispute provoked by the forcible action of Nicaragua in 2010 is not only contrary to Costa Rican sovereignty but also to the principle of peaceful settlement of disputes and to the authority of the Court, as established by the Charter of the United Nations and the Court’s Statute. Such an attempt must be firmly rejected. 2. Only the precise location of the boundary at each end of the sandbar of Harbor Head Lagoon remains open 2 .33 . In its 2015 Judgment, the Court noticed that there were different views with regard to the exact configuration of the coast in the area . Again, the Parties addressed this coastal configuration both at the hearings concerning the second request of provisional measures by Costa Rica and at the oral phase of the merits in the Certain Activities case . In order to avoid an 45 Ibid., pp . 90-91, para 116 . 29 adverse finding concerning its military presence in the disputed territory, and to obtain with regard to the maritime façade what it could not obtain from the construction of the first “caño”, Nicaragua invoked the existence of a sandbar running over the northern part of Isla Portillos that would be Nicaraguan . It relied heavily on old cartography that did not represent the current geography of the area . 2 .34 . Figure 2 .6 below is a sketch map with the alleged location of the military camp submitted to the Court by Nicaragua on 17 October 2013 . This sketch-map was based on a sketch-map included in Costa Rica’s Memorial in the Navigational and Related Rights case that in turn was based on the abovementioned 1988 maps . It is telling that Nicaragua did not use the official Nicaraguan INETER map of 2011 . Figure 2.6: Location of the 2013 military camp invoked by Nicaragua . Source: Certain Activities case, Request for New Provisional Measures, Oral Hearings, Nicaragua’s Judges’ Folder, 17 October 2013, tab 27 (AP .1 .2) 30 2 .35 . Figure 2 .7 below is the 1988 IGN map of Punta Castilla, with coordinates of the sandbar as it existed in the past and of the 2013 Nicaraguan military camp, which was shown to the Court on 16 October 2013 by counsel for Costa Rica . Figure 2.7: 1988 Cartographical Sheet, Certain Activities case, New Request for Provisional Measures, Oral Hearings, Costa Rica’s Judges’ Folder, 16 October 2013, Tab 4 2 .36 . Costa Rica explained, both in 2013 and 2015, through satellite photography46 and Nicaraguan official cartography, 47 that what used to be the northern or left bank of “the first channel met” as identified by Alexander has naturally disappeared as a result of 46 CR 2013/26, p . 20, para 39 (Crawford), Costa Rica’s Judges Folder of 16 October 2013, tab 5; CR 2015/14, p . 31, para 21 (Kohen), Costa Rica’s Judges Folder of 28 April 2015, tab 18 (Source: Satellite Image of 14 September 2013, Costa Rica, Request for Provisional Measures, 24 September 2013, Attachment PM-28 (true color)) . 47 CR 2015/14, p . 31, para 22 (Kohen); Nicaragua, INETER, Map “San Juan de Nicaragua”, 2011, Annex 63 . 31 48 below . marine erosion . and 2015 oral hearings, as well as the Nicaraguan new map of 2011, A satellite image displayed during both the 2013 are reproduced as Figures 2 .8 and 2 .9 Figure 2.8: Satellite Image of 14 September 2013 including Nicaraguan camp and the location of the disappeared sandbar coordinates, Certain Activities case, New Request for Provisional Measures, Costa Rica’s Judges’ Folder, 16 October 2013, tab 5; Merits, Oral Hearings, Costa Rica’s Judges’ Folder, 28 April 2015, Tab 22 48 CR 2015/14, p . 31, para 21 (Kohen) 32 Figure 2.9: San Juan del Norte map, Instituto Nicaragüense de Estudios Territoriales, Nicaragua, 2011, Detailed Area, Maritime Delimitation case, Costa Rica’s Memorial, Sketch map 4.7 2 .37 . Given these different presentations of the geographical situation in the area by the Parties, the Court included the following paragraph in its 2015 Judgment: 70. The above definition of the ‘disputed territory’ does not specifically refer to the stretch of coast abutting the Caribbean Sea which lies between the Harbor Head Lagoon, which lagoon both Parties agree is Nicaraguan, and the mouth of the San Juan River . In their oral arguments the Parties expressed different views on this issue . However, they did not address the question of the precise location of the mouth of the river nor did they provide detailed information concerning the coast . Neither Party requested the Court to define the boundary more 33 precisely with regard to this coast . Accordingly, the Court will refrain from doing so .49 2 .38 . It is important to determine the exact scope of the Court’s statement . Costa Rica understands that there were issues discussed in Certain Activities that fell outside the of the Court in that case . First, whether there is additional territory seaward of the disputed territory, i .e ., seaward of the beach of Isla Portillos; second, whether there is any land territory between Harbor Head Lagoon and the sea that requires delimitation . These issues would be of relevance for the Maritime Delimitation case, as it emerges from the Order of the Court of 31 May 2016 appointing its own experts and defining their task .50 jurisdiction 2 .39 . In its first sentence, paragraph 70 refers to the different views relating to the configuration of the “stretch of coast abutting the Caribbean Sea which lies between the Harbor Head Lagoon and the mouth of the San Juan River”. It mentions that the definition of the “disputed territory” of the prior paragraph does not explicitly refer to that stretch . This phrase simply explains that the definition of “disputed territory” does not preclude the possible existence of territory beyond the disputed territory that was concerned by the activities of Nicaragua in the Certain Activities case . Certainly, Nicaragua claimed the existence of other territory seaward of Isla Portillos, but this was deemed to be a matter that fell outside the jurisdiction of the Court . Paragraph 70 cannot be construed as meaning that the beach of 49 Certain Activities case, Judgment, 16 December 2015, para 70 . 50 See Maritime Delimitation Case, Order, 31 May 2016, para 10(2)(c) (“Is there a bank of sand or any maritime feature between the points referred to in subparagraphs (a) and (b) above? If so, what are their physical characteristics? In particular, are these features, or some of them, permanently above water, even at high tide?”). 34 Isla Portillos, which was concerned by the activities of Nicaragua, were not included in the definition of the “disputed territory”. To the contrary, the beach of Isla Portillos was expressly included within the disputed territory . What this sentence implies is that if there was any other land capable of appropriation under international law, beyond the beach of Isla Portillos -beach which the Court had just declared to be Costa Rican territory-, such land was not subject to its 2015 Judgment. However, not making a judgment over a “coastal feature” that may or may not exist is not, as Nicaragua seems to fancy, to leave open the question of the beach of Isla Portillos, which, clearly, the Court did not leave open . If there were other territory, it would be necessary to define the exact location of the boundary in the area . However, that there is no such other territory, nor even low-tide elevation maritime features seaward of the beach of Isla Portillos . 2 .40 . Equally, after mentioning that the parties consider Los Portillos/Harbor Head Lagoon to be Nicaraguan, the Court refrained from defining any boundary for this part of the coast . Indeed, a sandbar currently exists separating Los Portillos/Harbor oon from the Caribbean Sea, which, if capable of appropriation as territory and if Nicaraguan, would require a determination of the boundary separating each end of that sandbar from the beach of Isla Portillos . This is precisely one of the tasks of the Court, following the institution of these proceedings by Costa Rica . Head Lag 2 .41 . The Court also referred in paragraph 70 to the fact that the Parties did not address the question of the precise location of the mouth of the San Juan River . The experts appointed by the Court will 35 address this issue .51 It must be noted that, for the purposes of the delimitation of the land boundary between the two countries, it is not necessary to proceed to any precise demarcation of that mouth . Alexander himself was content to provide the general indication that the boundary will follow from that mouth the 52 right bank of the river . 2 .42 . As a result of the above, it follows that the correct interpretation of paragraph 70 and the current physical configuration of the area, lead the Court to consider that its task in the determination of the exact location of the boundary in the northern part of Isla Portillos is limited to the establishment of the boundary in both ends of the sandbar separating the Los Portillos Lagoon from the Caribbean Sea . Today, no Nicaraguan territory exists in the area of Isla Portillos other than the Los Portillos/Harbor Head Lagoon and the strip of sand presently in existence that separates it from the Caribbean Sea, insofar as it remains above water at all times and thus this enclave is capable of appropriation by a State . D. THE LEGAL MATERIALS RELEVANT TO SOVEREIGNTY ISSUES AND THE DELIMITATION OF THE BOUNDARY 2 .43 . The above conclusions with respect to the extent of the “disputed territory” are confirmed by reference to the 1858 Treaty of Limits,53 the 1888 Cleveland Award,54 and the First and Second Awards of General Alexander dated respectively 30 September 51 Ibid ., para 10(2)(a) (“What are the geographical coordinates of the point at which the right bank of the San Juan River meets the sea at the low-water line?”). 52 Second Alexander Award, Annex 49, p . 224 . 53 1858 Treaty of Limits, Maritime Delimitation case, CRM Annex 1 . 54 Award of the Arbitrator, President Cleveland of the United States, upon the validity of the Treaty of Limits of 1858 between Nicaragua and Costa Rica, Annex 46 . 36 1897 55 and 20 December 1897 . 56 These constitute the legal materials pursuant to which the Court made its Judgment of 16 December 2015 with respect to Costa Rica’s territorial sovereignty over the ‘disputed territory’ and, so far as is relevant to the current case, a definitive interpretation has already been provided by the Court . 2 .44 . As to the 1858 Treaty, in its Judgment, the Court explained: 59. … The 1858 Treaty fixed the course of the boundary between Costa Rica and Nicaragua from the Pacific Ocean and the Caribbean Sea. … According to Article II of the Treaty … part of the boundary between the two States runs along the right (Costa Rican) bank of the San Juan River from a point three English miles below Castillo Viejo, a small town in Nicaragua, to ‘the end of Punta Castilla, at the mouth of the San Juan’ on the Caribbean coast. … 60. … The Cleveland Award of 1888 confirmed, in its paragraph 1, the validity of the 1858 Treaty and found, in its paragraph 3 (1), that the boundary line between the two States on the Atlantic side ‘begins at the extremity of Punta de Castilla at the mouth of the San Juan de Nicaragua River, as they both existed on the 15th day of April 1858’. The Cleveland Award also settled the other points of doubtful interpretation submitted by Nicaragua, ….57 2 .45 . As to the First Alexander Award, the Court recorded as follows: 55 First Alexander Award, Annex 48 . 56 Second Alexander Award, Annex 49 . 57 Certain Activities case, Judgment, 16 December 2015, paras 59 and 60 . 37 In [General Alexander’s] first Award he stated that the boundary line: ‘must follow the … branch … called the Lower San Juan, through its harbor and into the sea . The natural terminus of that line is the righthand headland of the harbor mouth.’ (RIAA, Vol . XXVIII, p . 217 .) He observed that: ‘throughout the treaty the river is treated and regarded as an outlet of commerce . This implies that it is to be considered as in average condition of water, in which condition alone it is navigable.’ (Ibid., pp. 218-219 .) He then defined the initial part of the boundary starting from the Caribbean Sea in the following terms: ‘The exact spot which was the extremity of the headland of Punta de Castillo [on] April 15, 1858, has long been swept over by the Caribbean Sea, and there is too little concurrence in the shore outline of the old maps to permit any certainty of statement of distance or exact direction to it from the present headland . It was somewhere to the northeastward, and probably between 600 and 1,600 feet distant, but it can not now be certainly located . Under these circumstances it best fulfills the demands of the treaty and of President Cleveland’s award to adopt what it practically the headland of to-day, or the northwestern extremity of what seems to be the solid land, on the east side of Harbor Head Lagoon . 38 I have accordingly made personal inspection of this ground, and declare that initial line of the boundary to run as follows, to wit: Its direction shall be due northeast and southwest, across the bank of sand, from the Caribbean Sea into the waters of Harbor Head Lagoon . It shall pass, at its nearest point, 300 feet on the northwest side from the small hut standing in that vicinity . On reaching the waters of Harbor Head Lagoon the boundary line shall turn to the left, or southeastward, and shall follow the water’s edge around the harbor until it reaches the river proper by the first channel met . Up this channel, and up the river proper, the line shall continue to ascend as directed in the treaty.’ (Ibid., p. 220.) ….58 2 .46 . The sketch map illustrating this initial part of the boundary attached to the First Alexander Award was reproduced by the Court as Sketch-map No . 3 in the Judgment and is also to be found opposite paragraph 2 .5 above (Figure 2 .2) . 2 .47 . As to the Second Alexander Award, the Court recorded how this envisaged the possibility that the banks of the San Juan River would not gradually expand or contract but that there would be wholesale changes in its channels . The Court also recorded the Arbitrator’s observation that: ‘Today’s boundary line must necessarily be affected in future by all these gradual or sudden changes . But the impact in each case can only be determined by the circumstances of the case itself, on a case-by-case basis in accordance with such principles of international law as may be applicable . 58 Ibid ., citing First Alexander Award, Annex 48 . 39 The proposed measurement and demarcation of the boundary line will not have any effect on the application of those principles.’ (RIAA, Vol. XXVIII, p . 224) .59 2 .48 . Against this backdrop, the Court held as follows: The Court considers that the 1858 Treaty and the awards by President Cleveland and General Alexander lead to the conclusion that Article II of the 1858 Treaty, which places the boundary on the ‘right bank of the . . . river’, must be interpreted in the context of Article VI (…), which provides that ‘the Republic of Costa Rica shall . . . have a perpetual right of free navigation on the . . . waters [of the river] between [its] mouth . . . and a point located three English miles below Castillo Viejo’. As General Alexander observed in demarcating the boundary, the 1858 Treaty regards the river, ‘in average condition of water’, as an ‘outlet of commerce’ (see paragraph 73 above) . In the view of the Court, Articles II and VI, taken together, provide that the right bank of a channel of the river forms the boundary on the assumption that this channel is a navigable ‘outlet of commerce’. Thus, Costa Rica’s rights of navigation are linked with sovereignty over the right bank, which has clearly been attributed to Costa Rica as far as the mouth of the river .60 2 .49 . In its Judgment, the Court then proceeded to consider and reject Nicaragua’s argument that the ‘first channel met’ as referred to in the First Alexander Award was the cañ o that Nicaragua had excavated in 2010 . It found that Costa Rica had sovereignty over and extending to the right bank of the Lower San Juan River all the way to the river mouth – as was consistent with any plain 59 Certain Activities case, Judgment, 16 December 2015, para 74, citing Second Alexander Award, Annex 49, p . 224 . 60 Certain Activities case, Judgment, 16 December 2015, para 74 . 40 reading of the 1858 Treaty and the Awards before the Court . It stated: The Court therefore concludes that the right bank of the cañ o which Nicaragua dredged in 2010 is not part of the boundary between Costa Rica and Nicaragua, and that the territory under Costa Rica’s sovereignty extends to the right bank of the Lower San Juan River as far as its mouth in the Caribbean Sea . Sovereignty over the disputed territory thus belongs to Costa Rica .61 2 .50 . As outlined in Section C above, the “disputed territory” included the beach of Isla Portillos east of the right bank of the mouth of the Lower San Juan River, as is consistent with the local geography . More generally, international law does not recognise a ‘beach’ as a feature separate from the territory of which it forms part, and there could be no basis for suggesting that the transition onto a beach area operates as some form of an interruption of territorial sovereignty . 2 .51 . There is also no basis in the Judgment, or in the 1858 Treaty and Awards as relied on by the Court, for Nicaragua’s recent claim of sovereignty over “the entire stretch of coast abutting the Caribbean Sea between Harbor Head and the river’s mouth”. 62 appears that this position is based on the alleged existence of a bank of sand or other feature immediately in front of the beach of Isla Portillos . In this respect, it is noted that, in its CounterMemorial in the Maritime Delimitation case, Nicaragua has said that: It 61 Ibid ., para 92 . 62 Letter from Nicaragua to Costa Rica, Reference MRE/DMC/250/11/16, 17 November 2016, Annex 57. 41 As of today there have indeed been important changes in the coastal configuration in the region . But the ‘bank of sand’ separating the Caribbean Sea from Harbor Head Lagoon – which the Parties agree to be Nicaraguan – still exists as is apparent from recent satellite images – including those reproduced by Costa Rica at page 60 of its Memorial – and is still located where Alexander located it . Whatever the accuracy of Alexander’s sketch map annexed to his first Award, there is no doubt that the point of departure of the land boundary that he identified can still be established in today’s situation, … Costa Rica’s appetite for territory is seeking to achieve what marine erosion and deposition has not been able to do .63 2 .52 . The reference to important changes in the coastal configuration is apt, but Nicaragua’s position is otherwise untenable. It is useful to trace through what has happened to Los Portillos/Harbor Head Lagoon and the sandy features in the area since 1897, including the ‘bank of sand’ to which General Alexander referred in his First Award .64 The correct position, as is illustrated by Figure 2 .10 in which the data from Proceedings X of the Alexander Minutes are plotted on a series of more recent images,65 is as follows: 63 Maritime Delimitation case, NCM, para 3 .49 (footnotes and reference to Nicaraguan Figure IIb-3 omitted) . 64 See the passages from the First Alexander Award, Annex 48, cited in Certain Activities case, Judgment, 16 December 2015, para 73 . 65 This Figure has been produced for illustrative purposes only and there is an element of approximation in the overlay . 42 (a) The course of the Lower San Juan River, the “river proper”66, has changed relatively little . The river mouth is shown in Figure 2 .11 in the location labelled “A”. (b) There is no longer any bank of sand “still located where Alexander located it”, as Nicaragua has contended above. Such is not to be seen on recent satellite images as Nicaragua contends . Figure 2.10: Coastal evolution of the mouth of the San Juan and Laguna Los Portillos / Harbor Head Lagoon. Overlay of Sketch Map from Alexander Minutes X to 1899 map and Satellite images of 1961, 1997 and 2016 (this overlay is used for illustrative purposes only) . 2 .53 . It follows from the above that Nicaragua could have no conceivable basis to claim territory (including the coast) in the 66 See the First Alexander Award, Annex 48, p . 220 . 43 area running from the west of Los Portillos/Harbor Head Lagoon up to the mouth of the Lower San Juan River . Indeed: (a) The beach that runs from the west of Los Portillos/Harbor Head Lagoon (labelled ‘B’ on Figure 2 .11) up to the mouth of the Lower San Juan River (labelled ‘A’ on Figure 2 .11) is what was at the time of the Alexander Awards the southern or right bank of Los Portillos/Harbor Head Lagoon and “the first channel met”. This is clear from the Alexander sketch map (Figure 2 .2) and Figure 2 .10 . That southern or right bank was held by General Alexander to be Costa Rican territory, and it is now coastal territory abutting onto the Caribbean Sea with no feature, ‘bank of sand’ or otherwise, seaward of it. (b) All that has happened is that the northern/left bank of the lagoon/channel has been eroded and has disappeared, and the southern/right bank now abuts the Caribbean Sea . 44 Figure 2.11: Sketch map based on satellite Image of 3 October 2016 (See also Figure 2 .4) 2 .54 . It is extraordinary that Nicaragua should, whilst referring to “Costa Rica’s appetite for territory”,67 seek to lay claim to land that was held by General Alexander to appertain to Costa Rica and that, of itself, has changed relatively little in the past 120 years . Today, the only Nicaraguan territory in the area of Isla Portillos is – for so long as it is territory capable of appertaining to a State – an enclave comprising the Los Portillos/Harbor Head Lagoon and the sandbar separating Los Portillos/Harbor Head Lagoon from the Caribbean Sea . 2 .55 . Finally, insofar as Nicaragua’s claim with respect to the “entire stretch of coast”68 is based on an assertion of sovereignty by 67 Maritime Delimitation case, NCM, para 3 .49 . 68 Letter from Nicaragua to Costa Rica, Reference MRE/DMC/250/11/16, 17 November 2016, Annex 57. 45 reference to the so-called Punta Castilla,69 such would be directly counter to: (a) the legal reasoning and conclusion of the First Alexander Award, which was not to seek to re-discover a lost marker point, but rather to identify the boundary by reference to “the demands of the treaty and of President Cleveland’s award”; (b) the legal reasoning and the approach in the Second Alexander Award, which recognised that the boundary line he drew would necessarily be impacted by future erosion and accretion; and (c) the Judgment of 16 December 2015, including the passages referred to at paragraphs 2 .44-2 .49 above . Directly contrary to what Nicaragua has argued in its Counter-Memorial in the Maritime Delimitation case, and consistent with the 1858 Treaty and the Cleveland and Alexander Awards, the location of the mouth of the Lower San Juan River has been held by the Court to be the “determining factor” so far as concerns the land boundary, not ‘Punta Castilla’.70 69 Cf . Maritime Delimitation case, NCM, para 3 .45 . 70 Certain Activities case, Judgment, 16 December 2015, para 92 . Cf . Maritime Delimitation case, NCM, para 3.45, where Nicaragua argued: “If the location of the mouth of the river had been the determining factor, he [General Alexander] would have simply decided where the mouth was located at that moment, without the need for establishing a fixed marker . But Alexander was not looking for the mouth of the river, only for Punta de Castilla.” That Alexander considered that the boundary line “must follow … the Lower San Juan, through its harbor and into the sea.” He continued: “The natural terminus of that line is the righthand headland of the harbor mouth.” He was looking for the mouth of the San Juan River, which at that time flowed through its harbor, Harbor Head Lagoon, and he found it at “the northwestern extremity of what seems to be the solid land on the east side of Harbor Head Lagoon”. See First Alexander Award, Annex 48, as cited in Certain Activities case, Judgment, 16 December 2015, para 73 . is not a correct characterisation . General 46 2 .56 . The issue then is how the precise location of the land boundary separating both ends of the Los Portillos/Harbor Head Lagoon sandbar from Isla Portillos – at locations “B” and “C” on Figure 2 .11 – should best be defined . Alexander, applying the relevant legal instruments to the geography of his day, described a continuous boundary running from the Lower San Juan River, through the “first channel met” and around the harbor to the right headland of the harbor mouth . Today, however, the changed geographic configuration and the historical treatment of the waters of Los Portillos/Harbor Head Lagoon result in a detached U-shaped boundary around the Lagoon creating a Nicaraguan enclave east of the main land boundary that, as confirmed by the Court’s Judgment, runs alongside the right bank of the Lower San Juan River all the way to its mouth in the Caribbean Sea (location A on Figure 2 .11) . It is this land boundary that Costa Rica has asked the Court to delimit: the boundary separating the beach of Isla Portillos from both ends of the Los Portillos/Harbor Head Lagoon sandbar (locations B and C on Figure 2 .11) . 2 .57 . Given the fluid nature of the local topography, and consistent with the underlying approach of General Alexander, Costa Rica does not seek any demarcation of the remnant of the Los Portillos/Harbor Head Lagoon and the sandbar separating Los Portillos/Harbor Head Lagoon from the Caribbean Sea . The local pattern of erosion appears clear from Figure 2 .10, and Nicaragua’s sovereignty over this enclave can only persist for so long as the sandbar remains above water at all times and thus is capable of constituting territory appertaining to a State . 2 .58 . By reference to the above, Costa Rica’s position is that the land boundary separating both ends of the Los Portillos/Harbor Head Lagoon sandbar from Isla Portillos, insofar as this sandbar 47 remains above water at all times and thus is capable of constituting territory appertaining to a State, should run today from the northeastern corner of the Lagoon by the shortest line to the Caribbean Sea (location C) and from the northwestern corner of the Lagoon by the shortest line to the Caribbean Sea (location B) . Considering that the coastal geography in this area is likely to continue to undergo change, describing these boundary segments with specific coordinates is not appropriate . A verbal description would be sufficiently precise, and would allow the line to change with the geography, as envisioned in the Second Alexander Award . 48 49 48 CHAPTER 3 NICARAGUA’S NEW BREACH OF COSTA RICA’S TERRITORIAL SOVEREIGNTY A. INTRODUCTION 3 .1 . The present proceedings were initiated in response to the establishment by Nicaragua of a military camp on the Costa Rican territory of the beach of Isla Portillos, and by its claim of sovereignty over Costa Rican territory as defined by the Court in its Judgment of 16 December 2015 in the Certain Activities case . As this Chapter will show, Nicaragua has maintained a military camp on the sandbar directly in front of Los Portillos/Harbor Head Lagoon, which separates the Lagoon from the Caribbean Sea . However, in or about September 2016 Nicaragua moved its military camp north-westwards, from the sandbar in front of the Lagoon, to the beach of the northern part of Isla Portillos, which is indisputably Costa Rican territory, in violation of Costa Rica’s sovereignty over that territory . B. THE INSTALLATION OF A MILITARY CAMP BY NICARAGUA ON THE BEACH OF ISLA PORTILLOS 3 .2 . The first documented presence of a Nicaraguan military camp on the sandbar in front of Los Portillos/Harbor Head Lagoon by Costa Rica corresponds to a satellite image of 19 November 2010 (see Figure 3 .1) . As the image shows, the military camp was established on the sandbar that separates Los Portillos/Harbor Head Lagoon from the Caribbean Sea in two locations . The establishment of this military camp took place seemingly in the context of Nicaragua’s military occupation of the northern sector of Isla Portillos a few weeks earlier, and works Nicaragua carried out on Costa Rican territory to connect the San Juan River to the Lagoon . 50 49 Figure 3.1: Satellite Image of 19 November 2010 showing the location of Nicaragua’s military camp on the Nicaraguan sandbar 3 .3 . As the Court may recall, in the month of February 2013 Costa Rica discovered that Nicaragua had moved its military camp to the beach of Isla Portillos, closer to the mouth of the San Juan River, near the site where Nicaragua subsequently unlawfully excavated two new artificial caños . Costa Rica protested this situation to Nicaragua 71 Court on 15 March 2013 72 in the satellite image of 30 June 2013 (Figure 3 .2) . The installation of this military camp constituted a breach of the Court’s Order on Provisional Measures of 8 March 2011. Following the Court’s new Order on Provisional Measures of 22 November 2013, Nicaragua reported to the Court that its “Army , and brought it to the attention of the . The location of this camp is shown 71 Letter from Costa Rica to Nicaragua, Reference DM-AM-107-13, 27 February 2013, Annex 53 . 72 Letter from Costa Rica to the International Court of Justice, Reference ECRPB-016-13, 15 March 2013, Annex 54 . 51 50 proceeded with the dismantling of the military camp identified by the Court in paragraph 46 of the Order.”73 Figure 3.2: Satellite Image of 30 June 2013 showing the location of Nicaragua’s military camp on the Costa Rican beach of Isla Portillos 3 .4 . Thereafter, it appears that Nicaragua reinstalled and maintained its military camp on the sandbar directly in front of Los Portillos/Harbor Head Lagoon . An aerial photograph of 8 March 2016 (Figure 3 .3) and a satellite image of 5 July 2016 (Figure 3 .4) show the camp located on the sandbar . 73 Letter from Nicaragua to the International Court of Justice, Reference HOLEMB-252, 9 December 2013, Annex 55, p 2 . 52 51 Figure 3.3: Aerial photograph of 8 March 2016, with Nicaragua’s military camp visible on the Nicaraguan sandbar Figure 3.4: Satellite Image of 5 July 2016 showing the location of Nicaragua’s military camp on the Nicaraguan sandbar 5352 3 .5 . However, as documented by an aerial photograph of 7 November 2016 (Figure 3 .5) and a 14 September 2016 satellite image (Figure 3 .6) the military camp appears to have been moved to a different location, to the northwest of the Lagoon’s sandbar and installed on the beach of the northern part of Isla Portillos, on what was held to be Costa Rican territory by the Court in its 16 December 2015 Judgment in the Certain Activities case . 3 .6 . On 14 November 2016 Costa Rica wrote to Nicaragua to protest the presence of the military camp on Costa Rican territory .74 Nicaragua not only refused to remove its camp, but responded by laying claim to the entirety of the beach of Isla Portillos .75 74 Letter from Costa Rica to Nicaragua, Reference DM-AM-584-16, 14 November 2016, Annex 56 . 75 Letter from Nicaragua to Costa Rica, Reference MRE/DMC/250/11/16, 17 November 2016, Annex 57 . 54 53 Figure 3.5: Aerial photograph of 7 November 2016 showing the location of Nicaragua’s military camp on the Costa Rican beach of Isla Portillos Figure 3.6: Satellite Image of 14 September 2016 showing the location of Nicaragua’s military camp on the Costa Rican beach of Isla Portillos 5554 3 .7 . By way of an overflight on 14 February 2017, Costa Rica obtained photographic evidence (Figure 3 .7) that Nicaragua’s military camp continues to be placed on Costa Rican territory . Figure 3.7: Aerial photograph of 14 February 2017, with Nicaragua’s military camp visible on the Costa Rican beach of Isla Portillos C. NICARAGUA’S ACTIONS CONSTITUTE BREACHES OF COSTA RICA’S SOVEREIGNTY AND TERRITORIAL INTEGRITY, AND OF THE COURT’S JUDGMENT OF 16 DECEMBER 2015 3 .8 . It is uncontested between the Parties that Nicaragua moved its military camp to the location shown in the 14 September 2016 satellite image, above (Figure 3 .6) . This new location is situated on beach which forms part of the northern part of Isla Portillos, 56 which the Court adjudged in the Certain Activities case to fall under Costa Rican sovereignty, 76 as explained in Chapter 2 above . These Nicaraguan actions breached Costa Rica´s sovereignty and territorial integrity, and Costa Rica once again finds itself having to seek redress before the Court . The question of Nicaragua’s alleged sovereignty over the sandbar directly in front of Harbor Head Lagoon is separate and distinct from Costa Rica’s indisputable sovereignty over the northern part of Isla Portillos, including the beach in front of that territory . D. CONCLUSION 3 .9 . As noted in paragraph 1 .6 above, Nicaragua’s recent position appears to form part of a persistent course of conduct, from its invasion and occupation of (and subsequent claim to) Costa Rican territory in late 2010, to its breach of the Court’s 2011 Order in the Certain Activities case (requiring Costa Rica to obtain a further Order in 2013), and now to its placement of yet another military camp on Costa Rica’s territory, in breach of the Court’s Judgment of 2015, and its subsequent claim to that territory . It is in these circumstances that Costa Rica has been compelled to institute the current proceedings . For the reasons explained in Chapter 2 and this Chapter 3 above, it follows that by installing and maintaining a military camp on this territory, Nicaragua has breached: (a) the Court’s Judgment of 16 December 2015; 76 Certain Activities case, Judgment of 16 December 2015, paras 69 and 229(1) . 57 (b) Costa Rica’s sovereignty, as agreed and delimited by the 1858 Treaty of Limits, the Cleveland Award and the First and Second Alexander Awards; and (c) the fundamental principles of territorial integrity and the prohibition of use of force under the Charter of the United Nations and the Charter of the Organization of American States . 58 5957 SUBMISSIONS Costa Rica respectfully requests the Court: (a) To determine the precise location of the land boundary separating both ends of the Los Portillos/Harbor Head Lagoon sandbar from Isla Portillos, and in doing so to determine that the only Nicaraguan territory existing today in the area of Isla Portillos is limited to the enclave consisting of Los Portillos/Harbor Head Lagoon and the sandbar separating the Lagoon from the Caribbean Sea, insofar as this sandbar remains above water at all times and thus this enclave is capable of constituting territory appertaining to a State . Consequently, that the land boundary runs today from the northeastern corner of the Lagoon by the shortest line to the Caribbean Sea and from the northwestern corner of the Lagoon by the shortest line to the Caribbean Sea . (b) to adjudge and declare that, by establishing and maintaining a new military camp on the beach of Isla Portillos, Nicaragua has violated the sovereignty and territorial integrity of Costa Rica, and is in breach of the Judgment of the Court of 16 December 2015 in the Certain Activities case . Consequently, Costa Rica further requests the Court to declare that Nicaragua must withdraw its military camp situated in Costa Rican territory and fully comply with the Court’s 2015 Judgment. Costa Rica reserves it rights to seek any further remedies with respect to any damage that Nicaragua has or may cause to its territory . 60 6158 CERTIFICATION I have the honour to certify that the documents annexed to this Memorial are true copies and conform to the original documents and that the translations into English made by Costa Rica are accurate translations . Ambassador Sergio Ugalde Co-Agent of Costa Rica The Hague, 2 March 2017 62 63 LIST OF ANNEXES Treaties and Awards No. Document Page 46 Award of the Arbitrator, the President of the United States, upon the validity of the Treaty of Limits of 1858 between Nicaragua and Costa Rica (Cleveland Award), Washington D.C., 22 March 1888 Source: United Nations, Reports of International Arbitral Awards, Vol. XXVIII (2006) pp. 208-211 67 47 Costa Rica-Nicaragua Delimitation Convention (Pacheco-Matus), San Salvador, 27 March 1896 Source: United Nations, Reports of International Arbitral Awards, Vol. XXVIII (2006) pp. 211-213 75 48 First Award of the Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, San Juan del Norte, 30 September 1897 Source: United Nations, Reports of International Arbitral Awards, Vol. XXVIII (2007), pp. 215-222 81 49 Second Award of the Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, San Juan del Norte, 20 December 1897 Source: United Nations, Reports of International Arbitral Awards, Vol. XXVIII (2007), pp. 223-225 91 50 Third Award of the Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, San Juan del Norte, 22 March 1898 Source: United Nations, Reports of International Arbitral Awards, Vol. XXVIII (2007), pp. 227-230 97 51 Fourth Award of the Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, Greytown, 26 July 1899 Source: United Nations, Reports of International Arbitral Awards, Vol. XXVIII (2007), pp. 231-236 105 64 52 Proceedings of the Costa Rica-Nicaragua Demarcation Commission, 1897-1900 (extract of Proceedings X) Source: Original Minutes, Ministry of Foreign Affairs and Worship of Costa Rica archives. Spanish original and English translation 113 Correspondence 53 Letter from Costa Rica to Nicaragua, Reference DM-AM-107-13, 27 February 2013 English translation and Spanish original 133 54 Letter from Costa Rica to the International Court of Justice, Reference ECRPB-016-13, 15 March 2013 (annexes omitted) English original 137 55 Letter from Nicaragua to International Court of Justice, Reference HOL-EMB-252, 9 December 2013 (annexes omitted) English original 143 56 Letter from Costa Rica to Nicaragua, Reference DM-AM-584-16, 14 November 2016 Spanish original and English translation 147 57 Letter from Nicaragua to Costa Rica, Reference MRE/ DMC/250/11/16, 17 November 2016 Spanish original and English translation 165 58 Letter from Costa Rica to Nicaragua, Reference DM-AM-628-16, 30 November 2016 Spanish original and English translation 171 Maps 59 Map of the Bay of San Juan del Norte showing the starting point of the dividing boundary between Costa Rica [and] Nicaragua, compiled by the respective Commissions on 30 September 1897, signed by Luis Matamorros and Leónidas Carranza Source: Francisco Xavier Aguirre Sacasa, Un atlas histórico de Nicaragua (Managua, Nicaragua: Fundación Vida, 2002) 175 60 Cartographic sheet 1:50,000 of Punta Castilla, Instituto Geográfico Nacional, Costa Rica, 1970 179 61 Cartographic sheet 1:50,000 Punta Castilla, Instituto Geográfico Nacional, Costa Rica, 1988 183 65 62 Cartographic sheet 1:50,000, San Juan del Norte, Instituto Nicaragüense de Estudios Territoriales, Nicaragua, 1988 187 63 Cartographic sheet 1:50,000, San Juan del Norte, Instituto Nicaragüense de Estudios Territoriales, Nicaragua, 2011 191 Photographs and Satellite Images 64 Aerial photograph of Laguna Los Portillos/Harbor Head Lagoon sandbar breach, 10 June 2012 195 65 Aerial photograph of Laguna Los Portillos/Harbor Head Lagoon sandbar breach, 3 August 2012 199 66 Aerial photograph of Nicaraguan camp, 8 March 2016 203 67 Aerial photograph of Nicaraguan camp, 7 November 2016 207 68 Aerial photograph of Nicaraguan camp, 14 February 2017 211 69 Satellite Image, 5 July 2016 Full image and area enlargement 215 70 Satellite Image, 14 September 2016 Full image and area enlargement 219 71 Satellite Image, 3 October 2016 Full image and area enlargement 223 66 67 ANNEX 46 Award of the Arbitrator, the President of the United States, upon the validity of the Treaty of Limits of 1858 between Nicaragua and Costa Rica (Cleveland Award), Washington D .C ., 22 March 1888 Source: United Nations, Reports of International Arbitral Awards, Vol . XXVIII (2006) pp . 208-211 68 69 REPORTS OF INTERNATIONAL ARBITRAL AWARDS RECUEIL DES SENTENCES ARBITRALES Award in regard to the validity of the Treaty of Limits between Costa Rica and Nicaragua of 15 July 1858 Decisions of 22 March 1888 30 September 1897 20 December 1897 22 March 1898 26 July 1899 VOLUME XXVIII pp . 189-236 NATIONS UNIES - UNITED NATIONS Copyright (c) 2006 Annex 46 70 __________ AWARD OF THE PRESIDENT OF THE UNITED STATES IN REGARD TO THE VALIDITY OF THE TREATY OF LIMITS BETWEEN COSTA RICA AND NICARAGUA OF 15 JULY 1858, DECISION OF 22 MARCH 1888∗ SENTENCE ARBITRALE DU PRÉSIDENT DES ÉTATS-UNIS RELATIVE À LA VALIDITÉ DU TRAITÉ DE LIMITES ENTRE LE COSTA RICA ET LE NICARAGUA DU 15 JUILLET 1858, DÉCISION DU 22 MARS 1888∗∗ Validity of treaty of delimitation – unconstitutionality of ratification process – statement in the Constitution of Nicaragua that the boundary is on the Southeast, the Costa Rica State, is not precise enough preclude further frontier delimitation – defects in ratification process – irregularities and defects in the formalities of ratification may be remedied by subsequent acquiescence in and approval of the treaty – the fact of approval being established, the time of approval is immaterial, provided the other party by its acquiescence has seen fit to waive the delay – acquiescence during several years in the validity of the treaty is a strong evidence of the contemporaneous exposition which has ever been thought valuable as a guide in determining doubtful questions of interpretation, even if such acquiescence is not a substitute for ratification by a Legislature – Nicaragua cannot seek to invalidate the treaty on any mere ground of irregularity in the order of its own proceedings . Validity of treaty – treaty between two States which provides for a third State as a guarantor is not a tripartite treaty but a bilateral one with an independent and separable clause of guarantee as a feature of the arrangement – the lack of ratification by the guarantor does not preclude the validity of the treaty – in international law a guarantee is always subsidiary to the principal contract – acquiescence – failure of Government of Nicaragua to object prior to the ratification, resulted in waiver of the objection – facts which existed and were known at the time of the treaty ratification cannot be accepted as reasons for rescinding the treaty . Boundary delimitation – interpretation of a treaty – rights of navigation on the River San Juan∗∗∗ – Costa Rica has no right of navigation with vessels of war in the River San Juan, which belongs to Nicaragua – it has the right of navigation with vessels of the Revenue service for the sole purpose of commerce – Costa Rica is not bound to contribute financially to any work for the preservation and the improvement of the navigation of the river – Costa Rica may not prevent Nicaragua from undertaking work for the improvement of the River San Juan, provided that such work does not damage Costa Rican territory – Right to indemnification for transboundary harm or interference with right to navigation – Costa Rica can deny to Nicaragua the right of deviating the waters of River San Juan in case such deviation will result in the destruction or serious ∗ Reprinted from John Basset Moore, History and Digest of the International Arbitrations to Which the United States has been a Party, vol . II, Washington, 1898, Government Printing Office, p . 1946 . ∗∗ Reproduit de John Basset Moore, History and Digest of the International Arbitrations to Which the United States has been a Party, vol . II, Washington, 1898, Government Printing Office, p . 1946 . ∗∗∗ Secretariat note: The territorial dispute between Costa Rica and Nicaragua remains a current issue as a case is pending in 2006 in front of the International Court of Justice, namely “Dispute regarding navigational and related rights” . It has been submitted by Costa Rica on 29 September 2005 with regard to the infringement of its rights on the San Juan River, and in its application Costa Rica made due reference to the arbitral award of 22 March 1888 . Annex 46 71 208 COSTA RICA/NICARAGUA to do so . It had a perfect right to waive this limitation of time . Either party to a Treaty may extend the time of the other, either by express agreement or by acts indicating acquiescence . Nicaragua cannot be permitted to say, as she does in effect say in this branch of her argument — “it is true that this Treaty was approved unreservedly by both the executive and legislative branches of the Government; but such approval is worthless, as it was expressed not forty but forty-three days after the signature of the Treaty .” The fact of approval being established, the time of approval is immaterial, provided the other party by its acquiescence has seen fit to waive delay . I conclude therefore that the third ground of objection stated by Nicaragua is untenable . And having examined in detail the three reasons urged by Nicaragua for holding the Treaty invalid, and finding all these reasons untenable, I conclude that the Arbitrator should decide in favor of the validity of this Treaty . The Award Grover Cleveland, President of the United States, to whom it shall concern, Greeting: The functions of Arbitrator having been conferred upon the President of the United States by virtue of a Treaty signed at the City of Guatemala on the 24th day of December one thousand eight hundred and eighty-six, between the Republics of Costa Rica and Nicaragua, whereby it was agreed that the question pending between the contracting Governments in regard to the validity of their Treaty of Limits of the 15th day of April one thousand eight hundred and fifty-eight, should be submitted to the arbitration of the President of the United States of America; that if the Arbitrator’s award should determine that the Treaty was valid, the same award should also declare whether Costa Rica has the right of navigation of the River San Juan with vessels of war or of the revenue service; and that in the same manner the Arbitrator should decide, in case of the validity of the Treaty, upon all the other points of doubtful interpretation which either of the parties might find in the Treaty and should communicate to the other party within thirty days after the exchange of the ratifications of the said Treaty of the 24th day of December one thousand eight hundred and eighty six; And the Republic of Nicaragua having duly communicated to the Republic of Costa Rica eleven points of doubtful interpretation found in the said Treaty of Limits of the 15th day of April one thousand eight hundred and fifty-eight; and the Republic of Costa Rica having failed to communicate to the Republic of Nicaragua any points of doubtful interpretation found in the said last-mentioned Treaty; And both parties having duly presented their allegations and documents to the Arbitrator, and having thereafter duly presented their respective answers Annex 46 72 VALIDITY OF THE TREATY OF LIMITS OF 1858 209 to the allegations of the other party as provided in the Treaty of the 24th day of December one thousand eight hundred and eighty-six; And the Arbitrator pursuant to the fifth clause of said last-named Treaty having delegated his powers to the Honorable George L . Rives, Assistant Secretary of State, who, after examining and considering the said allegations, documents and answers, has made his report in writing thereon to the Arbitrator; Now therefore I, Grover Cleveland, President of the United States of America, do hereby make the following decision and award: First . The above-mentioned Treaty of Limits signed on the 15th day of April one thousand eight hundred and fifty-eight, is valid . Second . The Republic of Costa Rica under said Treaty and the stipulations contained in the sixth article thereof, 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’ accorded to her in said article, or as may be necessary to the protection of said enjoyment . Third . With respect to the points of doubtful interpretation communicated as aforesaid by the Republic of Nicaragua, I decide as follows: 1 . The boundary line between the Republics of Costa Rica and Nicaragua, on the Atlantic side, begins at the extremity of Punta de Castilla at the mouth of the San Juan de Nicaragua River, as they both existed on the 15th day of April 1858 . The ownership of any accretion to said Punta de Castilla is to be governed by the laws applicable to that subject . 2 . The central point of the Salinas Bay is to be fixed by drawing a straight line across the mouth of the Bay and determining mathematically the centre of the closed geometrical figure formed by such straight line and the shore of the Bay at low-water mark . 3 . By the central point of Salinas Bay is to be understood the centre of the geometrical figure formed as above stated . The limit of the Bay towards the ocean is a straight line drawn from the extremity of Punta Arranca Barba, nearly true South to the Westernmost portion of the land about Punta Sacate . 4 . The Republic of Costa Rica is not bound to concur with the Republic of Nicaragua in the expenses necessary to prevent the Bay of San Juan del Norte from being obstructed; to keep the navigation of the River or Port free and unembarrassed, or to improve it for the common benefit . 5 . The Republic of Costa Rica is not bound to contribute any proportion of the expenses that may be incurred by the Republic of Nicaragua for any of the purposes above mentioned . Annex 46 73 210 COSTA RICA/NICARAGUA 6 . The Republic of Costa Rica cannot prevent the Republic of Nicaragua from executing at her own expense and within her own territory such works of improvement, provided such works of improvement do not result in the occupation or flooding or damage of Costa Rica territory, or in the destruction or serious impairment of the navigation of the said River or any of its branches at any point where Costa Rica is entitled to navigate the same . The Republic of Costa Rica has the right to demand indemnification for any places belonging to her on the right bank of the River San Juan which may be occupied without her consent, and for any lands on the same bank which may be flooded or damaged in any other way in consequence of works of improvement . 7 . The branch of the River San Juan known as the Colorado River must not be considered as the boundary between the Republics of Costa Rica and Nicaragua in any part of its course . 8 . The right of the Republic of Costa Rica to the navigation of the River San Juan with men-of-war or revenue cutters is determined and defined in the Second Article of this award . 9 . The Republic of Costa Rica can deny to the Republic of Nicaragua the right of deviating the waters of the River San Juan in case such deviation will result in the destruction or serious impairment of the navigation of the said River or any of its branches at any point where Costa Rica is entitled to navigate the same . 10 . The Republic of Nicaragua remains bound not to make any grants for canal purposes across her territory without first asking the opinion of the Republic of Costa Rica, as provided in Article VIII of the Treaty of Limits of the 15th day of April one thousand eight hundred and fifty-eight . The natural rights of the Republic of Costa Rica alluded to in the said stipulation are the rights which, in view of the boundaries fixed by the said Treaty of Limits, she possesses in the soil thereby recognized as belonging exclusively to her; the rights which she possesses in the harbors of San Juan del Norte and Salinas Bay; and the rights which she possesses in so much of the River San Juan as lies more than three English miles below Castillo Viejo, measuring from the exterior fortifications of the said castle as the same existed in the year 1858; and perhaps other rights not here particularly specified . These rights are to be deemed injured in any case where the territory belonging to the Republic of Costa Rica is occupied or flooded; where there is an encroachment upon either of the said harbors injurious to Costa Rica; or where there is such an obstruction or deviation of the River San Juan as to destroy or seriously impair the navigation of the said River or any of its branches at any point where Costa Rica is entitled to navigate the same . 11 . The Treaty of Limits of the 15th day of April one thousand eight hundred and fifty-eight does not give to the Republic of Costa Rica the right to be a party to grants which Nicaragua may make for inter-oceanic canals; though in cases where the construction of the canal will involve an injury to Annex 46 74 VALIDITY OF THE TREATY OF LIMITS OF 1858 211 __________ the natural rights of Costa Rica, her opinion or advice, as mentioned in Article VIII of the Treaty, should be more than “advisory” or “consultative .” It would seem in such cases that her consent is necessary, and that she may thereupon demand compensation for the concessions she is asked to make; but she is not entitled as a right to share in the profits that the Republic of Nicaragua may reserve for herself as a compensation for such favors and privileges as she, in her turn, may concede . In testimony whereof, I have hereunto set my hand and have caused the Seal of the United States to be hereunto affixed . [SEAL .] Done in duplicate at the City of Washington, on the twenty-second day of March, in the year one thousand eight hundred and eighty-eight, and of the Independence of the United States the one hundred and twelfth . GROVER CLEVELAND . By the President: T . F . BAYARD, Secretary of State. Convention on border demarcation concluded between the Republic of Costa Rica and the Republic of Nicaragua signed at El Salvador on 27 March 1896∗ The Presidents of Costa Rica and Nicaragua, having accepted the mediation of the Government of El Salvador in resolving the issue of demarcating the border between their two countries, have respectively designated as their extraordinary and plenipotentiary envoys, their Excellencies, Mr . Leonidas Pacheco and Mr . Manuel C . Matus . Following various meetings held in the presence of His Excellency, Mr . Jacinto Castellanos, Minister for Foreign Affairs of El Salvador, specially mandated representative of that Government, and their full powers having been found to be in good and proper form, the envoys have signed the following Convention . His Excellency, General Rafael A . Gutiérrez, President of the Republic of El Salvador, attended the signing ceremony to confer greater solemnity to the event . ARTICLE I . — The Contracting Governments are bound to appoint a Commission, respectively, each composed of two engineers, or surveyors, for the purpose of duly defining and marking out the dividing line between the Republics of Costa Rica and Nicaragua according to the stipulations of the ∗ Original Spanish version, translation by the Secretariat of the United Nations . Annex 46 75 ANNEX 47 Costa Rica-Nicaragua Delimitation Convention (Pacheco-Matus), San Salvador, 27 March 1896 Source: United Nations, Reports of International Arbitral Awards, Vol . XXVIII (2006) pp . 211-213 76 77 REPORTS OF INTERNATIONAL ARBITRAL AWARDS RECUEIL DES SENTENCES ARBITRALES Award in regard to the validity of the Treaty of Limits between Costa Rica and Nicaragua of 15 July 1858 Decisions of 22 March 1888 30 September 1897 20 December 1897 22 March 1898 26 July 1899 VOLUME XXVIII pp . 189-236 NATIONS UNIES - UNITED NATIONS Copyright (c) 2006 Annex 47 78 VALIDITY OF THE TREATY OF LIMITS OF 1858 211 __________ the natural rights of Costa Rica, her opinion or advice, as mentioned in Article VIII of the Treaty, should be more than “advisory” or “consultative .” It would seem in such cases that her consent is necessary, and that she may thereupon demand compensation for the concessions she is asked to make; but she is not entitled as a right to share in the profits that the Republic of Nicaragua may reserve for herself as a compensation for such favors and privileges as she, in her turn, may concede . In testimony whereof, I have hereunto set my hand and have caused the Seal of the United States to be hereunto affixed . [SEAL .] Done in duplicate at the City of Washington, on the twenty-second day of March, in the year one thousand eight hundred and eighty-eight, and of the Independence of the United States the one hundred and twelfth . GROVER CLEVELAND . By the President: T . F . BAYARD, Secretary of State. Convention on border demarcation concluded between the Republic of Costa Rica and the Republic of Nicaragua signed at El Salvador on 27 March 1896∗ The Presidents of Costa Rica and Nicaragua, having accepted the mediation of the Government of El Salvador in resolving the issue of demarcating the border between their two countries, have respectively designated as their extraordinary and plenipotentiary envoys, their Excellencies, Mr . Leonidas Pacheco and Mr . Manuel C . Matus . Following various meetings held in the presence of His Excellency, Mr . Jacinto Castellanos, Minister for Foreign Affairs of El Salvador, specially mandated representative of that Government, and their full powers having been found to be in good and proper form, the envoys have signed the following Convention . His Excellency, General Rafael A . Gutiérrez, President of the Republic of El Salvador, attended the signing ceremony to confer greater solemnity to the event . ARTICLE I . — The Contracting Governments are bound to appoint a Commission, respectively, each composed of two engineers, or surveyors, for the purpose of duly defining and marking out the dividing line between the Republics of Costa Rica and Nicaragua according to the stipulations of the ∗ Original Spanish version, translation by the Secretariat of the United Nations . Annex 47 79 212 COSTA RICA/NICARAGUA Treaty of 15 April 1858 and the award of the President of the United States of America, Mr . Grover Cleveland . ARTICLE II . — The Commissions established under article I shall include an engineer appointed by the President of the United States of America at the request of the two Parties, whose mandate shall include the following: to resolve any dispute between the Commissions of Costa Rica and Nicaragua arising from the operations . He shall have broad powers to decide whatever kind of differences may arise in the course of any operations and his ruling shall be final . ARTICLE III . — Within three months of the signing of this Convention, which shall be duly ratified by the respective Congresses, the Representatives of both Contracting Governments in Washington shall jointly request the President of the United States of America to appoint the aforementioned engineer and confirm such appointment . Should such joint request fail to be made by the Representative in Washington of either Government or for any other reason within the stipulated time limit, upon expiration of such time limit, the Representatives of either Costa Rica or Nicaragua in Washington may separately make such request, which shall be as valid as if it had been made jointly by both Parties . ARTICLE IV . — Upon confirmation of the appointment of the United States engineer and within three months of such appointment, the engineer shall proceed with demarcations of the border line and such operation shall be completed within 20 months of its starting date . The Commissions of the Contracting Parties shall meet in San Juan del Norte as agreed and shall begin their work at the extremity of the border starting from the Atlantic coast, as provided for by the aforementioned Treaty and award . ARTICLE V . — The Contracting Parties agree that if, on the scheduled start date of the work, either one of the Commissions of the Republics of Costa Rica or Nicaragua failed for any reason to appear at the designated venue, the Commission of the other Republic present shall begin the work with the agreement of the United States Government engineer and such work as shall have been done shall be valid and definitive and shall not be open to appeal by the Republic that failed to send its Commissioners . The same shall apply should any or all the Commissioners of either Contracting Republic be absent once the work starts or refuse to carry out such operations as provided for in the award and Treaty referred to herein or as decided by the engineer appointed by the President of the United States . ARTICLE VI . — The Contracting Parties agree that the deadline for the completion of the boundary marking is not mandatory so that any operations carried out upon the expiration thereof shall be valid either because such operations could not have been completed within the deadline or because the commissioners of Costa Rica and Nicaragua have agreed together with the United States Government engineer to temporarily suspended such operations Annex 47 80 VALIDITY OF THE TREATY OF LIMITS OF 1858 213 __________ so that the time remaining would not allow for the completion of the operations . ARTICLE VII . — Should the demarcation work be temporarily suspended, such work as has been completed until then shall be considered final and completed, with the borders being fixed at that particular location even where such suspension were to be extended indefinitely as a result of unforeseen and insuperable circumstances . ARTICLE VIII . — The records of the operations shall be in triplicate and shall be duly signed and sealed by the commissioners and shall constitute the definitive demarcation document of the borders of the Republics with no approval or any other formality being required on the part of the signatory Republics . ARTICLE IX . — The records to which reference is made in the foregoing article shall be prepared as follows: every day, at the end of operations, such operations as are completed shall be documented in a detailed manner, including the starting point of the operations of the day, the types of survey markers constructed, the distances separating them, the direction of the line as based on the common boundary . Any dispute arising between the Commissions of Costa Rica and Nicaragua with respect to any particular point shall be documented in the relevant record along with the ruling of the United States engineer . The records shall be in triplicate: the Commissions of Costa Rica and Nicaragua shall each keep a copy and the third copy shall be kept by the United States engineer to be deposited upon completion of the operations with the Department of State in Washington . ARTICLE X . — The expenses relating to the travel and subsistence of the United States engineer as well as to the salary payable during his functions shall be defrayed equally by the signatory Republics . ARTICLE XI . — The Contracting Parties undertake to cause this Convention to be ratified by their respective Congresses within six months starting from this date, even if such ratification were to require convening extraordinary sessions of the said Congresses, and the subsequent exchange shall take place within a month following the date of the last such ratification, at San José de Costa Rica or at Managua . ARTICLE XII . — Failure to complete the acts to which reference is made earlier within the deadlines stipulated shall not render this Convention void and the Republic which failed to complete such act shall endeavour to do so as soon as possible . In witness whereof, the parties have signed and sealed this Convention in duplicate, at the City of San Salvador on the twenty-seventh of March eighteen hundred and ninety-six .1 1 Memoria de Relaciones Exteriores (Costa Rica), 1897, p . 28 . Annex 47 81 ANNEX 48 First Award of the Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, San Juan del Norte, 30 September 1897 Source: United Nations, Reports of International Arbitral Awards, Vol . XXVIII (2007), pp . 215-222 82 83 Annex 48 84 Annex 48 85 Annex 48 86 Annex 48 87 Annex 48 88 Annex 48 89 Annex 48 90 Annex 48 91 ANNEX 49 Second Award of the Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, San Juan del Norte, 20 December 1897 Source: United Nations, Reports of International Arbitral Awards, Vol . XXVIII (2007), pp . 223-225 92 93 Annex 49 94 Annex 49 95 Annex 49 96 ANNEX 50 Third Award of the Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, San Juan del Norte, 22 March 1898 Source: United Nations, Reports of International Arbitral Awards, Vol . XXVIII (2007), pp . 227-230 Annex 49 97 ANNEX 50 Third Award of the Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, San Juan del Norte, 22 March 1898 Source: United Nations, Reports of International Arbitral Awards, Vol . XXVIII (2007), pp . 227-230 98 99 Annex 50 100 Annex 50 101 Annex 50 102 Annex 50 103 Annex 50 104 105 ANNEX 51 Fourth Award of the Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, Greytown, 26 July 1899 Source: United Nations, Reports of International Arbitral Awards, Vol . XXVIII (2007), pp . 231-236 106 107 REPORTS OF INTERNATIONAL ARBITRAL AWARDS RECUEIL DES SENTENCES ARBITRALES Fourth award under the Convention between Costa Rica and Nicaragua of 8 April 1896 for the demarcation of the boundary between the two Republics 26 July 1899 VOLUME XXVIII pp . 231-236 NATIONS UNIES - UNITED NATIONS Copyright (c) 2006 Annex 51 108 __________ FOURTH AWARD OF THE ENGINEER-UMPIRE, UNDER THE CONVENTION BETWEEN COSTA RICA AND NICARAGUA OF 8 APRIL 1896 FOR THE DEMARCATION OF THE BOUNDARY BETWEEN THE TWO REPUBLICS, DECISION OF 26 JULY 1899∗ QUATRIÈME SENTENCE ARBITRALE RENDUE PAR LE SURARBITRE INGÉNIEUR, EN VERTU DE LA CONVENTION ENTRE LE COSTA RICA ET LE NICARAGUA DU 8 AVRIL 1896 POUR LA DÉMARCATION DE LA FRONTIÈRE ENTRE LES DEUX RÉPUBLIQUES, DÉCISION DU 26 JUILLET 1899∗∗ Interpretation of treaty – words must be taken in their first and simplest meanings, in their natural and obvious sense, according to their general use . Lake boundary – bank of a lake – limit of water by dry land comprising some elements of permanency – natural, obvious and reasonable waterline preferable to technical one – water level for determining water boundary in the absence of an explicit level; general custom treats mean high water as the normal level and the assumed lake boundary, wherever wet and dry seasons prevail, in all ordinary topographical maps – exceptional situation of waterline used as starting point for boundary line rather than as boundary line – choice of the line of mean high water . Interprétation des traités – les termes doivent être pris dans leur sens premier le plus simple, naturel et évident, conformément à leur emploi courant . Frontière lacustre – rives d’un lac – limite de l’eau par un terrain sec comprenant des éléments de permanence – ligne de niveau d’eau naturelle, évidente et raisonnable, préférable à une ligne technique – ligne de niveau d’eau déterminant la frontière lacustre en l’absence de niveau explicite; pour les régions d’alternance de saisons sèches et humides, pratique générale de se référer dans les cartes topographiques ordinaires, à la ligne moyenne du niveau d’eau haut comme niveau normal et ligne de délimitation du lac – situation exceptionnelle où la ligne d’eau sert de point de départ de la ligne frontière au lieu d’être elle-même la ligne frontière – choix de la ligne moyenne du niveau d’eau haut . * * * * * Fourth Award made to Greytown, July 26, 1899, in the question of the limit between Costa Rica and Nicaragua. As the arbitrator of whatever points of difference may arise between your two bodies in tracing and marking the boundary lines between the Republics you represent, I am called upon to decide the following question: ∗ Reprinted from H . La Fontaine, Pasicrisie Internationale: Histoire Documentaire des Arbitrages Internationaux (1794-1900), Imprimerie Stampelli & CIE, Berne 1902, pp .-535-537 . (Only one of the maps mentioned in this award is reprinted) ∗∗ Reproduit de H . La Fontaine, Pasicrisie Internationale: Histoire Documentaire des Arbitrages Internationaux (1794-1900), Imprimerie Stampelli & CIE, Berne 1902, pp . 535-537 . Annex 51 109 232 COSTA RICA/NICARAGUA What level of its waters shall be taken to determine the shore line of Lake Nicaragua, parallel to which and 2 miles distant therefrom the boundary line must be traced, from near the San Juan River to the Sapoa? It will facilitate discussion to define in advance the principal levels which must be frequently referred to . Under the influence of rainy seasons of about seven months and dry seasons of about five the level of Lake Nicaragua is in constant fluctuation . We shall have to discuss five different stages . First . Extreme high water, the level reached only in years of maximum rainfall or some extraordinary conditions . Second . Mean high water, the average high level of average years . Third . Mean low water, the average low level of average years . Fourth . Extreme low water, the lowest level reached in years of minimum rainfall or other extraordinary conditions . Fifth . Mean water, the average between mean high water and mean low water . The argument presented to me in behalf of Nicaragua claims that the level to be adopted in this case should be the first level named, to wit extreme high water . It argues that this line and this alone, is the true limit of what the argument calls the bed of the lake . Costa Rica claims the adoption of the third level, to wit, mean low water . This is argued principally upon two grounds: First, it is shown by a great number of legal decisions that in most States all water boundaries are invariably held to run at either extreme or mean low water . Second, it is claimed that in case of any doubt Costa Rica is entitled to its benefit, as she is conceding territory geographically hers . I will begin with Costa Rica’s first argument . The equity of adopting a low water line in the case of all water boundaries is readily admitted, even though instances of contrary practice exist . Between all permanent lands and permanent waters usually runs a strip of land, sometimes dry and sometimes submerged . We may call it, for short, semisubmerged . Its value for ordinary purposes is much diminished by its liability to overflow, but, as an adjunct to the permanent land, it possesses often very great value . If the owner of the permanent land can fence across the semisubmerged he may save fencing his entire water front . He also can utilize whatever agricultural value may be in the semisubmerged land in dry seasons . Both of these values would be destroyed and wasted if the ownership were conferred upon the owner of the water . Therefore equity always and law generally, confers it upon the owner of the permanent land . I recognized and followed this principle in my award No . 3, where I held that the boundary line following the right bank of the San Juan River, below Castillo, follows the lowest water mark of a navigable stage of river . And, if now the lake shore were itself to be the boundary of Costa Rica, I would not Annex 51 110 AWARD OF 26 JULY 1899 233 hesitate to declare that the semisubmerged land went with the permanent land and carried her limits at least to the mean low water line . But this case is not one of a water boundary, nor is it at all similar, or on all fours with one, for none of the equities above set forth have any application . It is a case of rare and singular occurrence and without precedent within my knowledge . A water line is in question, but not as a boundary . It is only to furnish starting points whence to mesure off a certain strip of territory . Clearly the case stands alone, and must be governed strictly by the instrument under which it has arisen . That is the treaty of 1858, and its language is as follows: “Thence the line shall continue toward the river Sapoa, which discharges into the Lake Nicaragua, following a course which is distant always 2 miles from the right bank of the river San Juan, with its sinuosities, up to its origin at the lake, and from the right bank of the Lake itself up to the said river Sapoa, where this line parallel to the said bank will terminate .” The principles, upon which the language and intent of treaties are to be interpreted, are well set forth in the Costa Rica argument by many quotations from eminent authors . All concur that words are to be taken as far as possible in their first and simplest meanings — “in their natural and obvious sense, according to the general use of the same words”, “in the usual sense, and not in any extraordinary or unused acceptation” . We must suppose that the language of the treaty above quoted suggested to its framers some very definite picture of the lake with its banks and of the 2 miles strip of territory . It evidently seemed to them all so simple and obvious that no further words were necessary . Let us first call up pictures of the lake at different levels and see which seems the most natural, obvious and reasonable . The very effort to call up a picture of the lake at either extreme high water or at extreme low water seems to me immediately to rule both of these levels out of further consideration . Both seem unnatural conditions, and I must believe that had either been intended, additional details would have been given . Next, is the mean low water mark the first, most obvious and natural picture called up by the expression “the bank of the lake”? It seems to me decidedly not . During about eleven months of the year this line is submerged, invisible and inaccessible . It seems rather a technical line than a natural one . The idea of a bank is of water limited by dry land with some elements of permanency about it . Even during the brief period when the line is uncovered the idea of it is suggestive far more of mud and aquatic growths than of dry land and forest growths . To my mind, the natural, simple and obvious idea of the bank of a lake in this climate is presented only by the line of mean high water . Here we would first find permanent dry ground every day of an average year . Here an observer, during every annual round of ordinary seasons, would see the water Annex 51 111 234 COSTA RICA/NICARAGUA advance to his very feet and then recede, as if some power had drawn the line and said to the waters, “Hitherto shalt thou come, but no further” . Here the struggle between forest growths and aquatic vegetation begins to change the landscape . Here lines of drift, the flotsam and jetsam of the waves, naturally suggest the limits of the “bed of the lake” . One level of the lake remains for discussion, the mean level, or average of all waters . In a different climate, where the rainfall is more uniformly distributed throughout the year, the mean high water and mean low water lines, with all their respective features, would approach each other, tending to finally merge in the line of mean water . But, where wet and dry seasons prevail, as in the present case, the line of mean water is destitute of all obvious features, and is submerged for many months of the year . It is purely a technical and not a natural line, and is not to be understood where not expressly called for . In argument against Nicaragua’s claim of the extreme high water line, Costa Rica appeals to the general custom of geographers and scientific men in making ordinary topographical maps, who never adopt the extreme lines of overflows for the outlines of lakes . This argument of general custom has great weight but it is equally against Costa Rica’s claim for the mean low water line . Wherever wet and dry seasons prevail, general custom treats mean high water as the normal state, always to be understood where no other level is expressed, and the line is assumed as the lake boundary in all ordinary topographical maps . Two quotations from Commander Lull’s report of his Nicaraguan Canal survey will illustrate “Report Secretary of the Navy, 1873, p . 187”: “In a survey made by Mr . John Baily, many years since, that gentleman professed to have found a pass with but 56 feet above the lake level, but the most of his statements are found to be entirely unreliable . . . For example, he finds Lake Nicaragua to be 121 feet above mean tide in the Pacific, while the true difference of level is but 107 feet .” (Ibid ., p . 199 .) “The surface of Lake Nicaragua is 107 feet above mean tide in either sea .” From comparison of this level with the levels found by other surveys, there is no question that this figure was Lull’s estimate of mean high water, as shown by his line of levels . From every consideration of the lake, therefore, I am driven to conclude that the shore line of the lake contemplated in the treaty is the mean high water line . I am led to the same conclusion also from the standpoint of the 2 miles strip of territory . The treaty gives no intimation as to the purpose of this concession, and we have no right to assume one, either political or commercial . We have only to observe the two conditions put upon the strip in the treaty . Under all ordinary conditions it must be land, and 2 miles wide . This would not be the case if we adopted the line of either mean low water or mean water . In the Annex 51 112 AWARD OF 26 JULY 1899 235 __________ former case the strip would be too narrow for about eleven months of an ordinary year: in the latter case for about five months . Without doubt, then, I conclude that mean high water mark determines the shore of the lake and it now remains to designate that level and how it shall be found . Several surveys of the proposed Nicaraguan Canal route besides that of Commander Lull above quoted, have been made within the last fifty years . Each found a certain mean high level of the lake, and it might seem a simple solution to take an average of them all, but, as each adopted its own bench mark on the ocean and ran its own line of levels to the lake, I have no means of bringing their figures to a common standard . It seems best, therefore, to adopt the figures of that one which is at once the latest and most thorough, which has enjoyed the benefit of all of the investigations of all of its predecessors, and whose bench marks on the lake are known and can be referred to . That is the survey, still in progress, under the direction of the United States Canal Commission . Its results have not yet been made public, but, by the courtesy of Rear Admiral J . G . Walker, President of the Commission, I am informed of them in a letter dated July 10, 1899, from which I quote: “In reply I am cabling you to-day as follows: ‘Alexander, Greytown, six,’ the six meaning, as per your letter, 106 as mean high level of lake . This elevation of 106 is, to the best of our knowledge (Mr . Davis, our hydrographer) the mean high water for a number of years . . . The highest level of the lake in 1898 was 106 .7, last of November . The elevation of our bench mark on inshore end of boiler at San Carlos is 109 .37 .” A complete copy of this letter will be handed you and also blue prints of the maps made by the Commission of the lower end of the lake, which may facilitate your work . As this Commission is the highest existing authority, I adopt its finding and announce my award as follows: The shore line of Lake Nicaragua, at the level of 106 feet, by the bench marks of the United States Nicaragua Canal Commission, shall be taken as the bank of said lake referred to in the treaty of 18581 . 1 Monthly Bulletin of the Bureau of the American Republics, 1899, vol . VII, p . 877 . Annex 51 113 ANNEX 52 Proceedings of the Costa Rica-Nicaragua Demarcation Commission, 1897-1900 (extract of Proceedings X) Source: Original Minutes, Ministry of Foreign Affairs and Worship of Costa Rica archives . Spanish original and English translation 114 115 COSTA RICAN COMMISSION Proceedings of inauguration of work on demarcation of limits between Costa Rica and Nicaragua In San Juan del Norte of the Major Republic of Central America, on the fifteenth day of May of eighteen hundred and ninety-seven, the undersigned engineers Luis Matamoros and Leónidas Carranza, Commissioners of the Government of Costa Rica, and Salvador Castrillo and W . Climie, Commissioners of the Government of Nicaragua, assembled to permanently trace and mark the boundary line between these two countries, in accordance with the Treaty of limits of April 15, 1858 and the Arbitral Award of Grover Cleveland, President of the United States of America, assisted by the Engineer Arbiter, General E .P . Alexander, appointed by the abovementioned President of the United States in order to form said Commissions and to resolve the matters discussed in Article II of the Convention celebrated in San Salvador on May 2, 1896, after presenting their respective credentials, which we consider to be in order, we accept them and we declare the Commissions to be established; and we declare the duties that have been entrusted to us to be inaugurated on this date; and an agreement was reached to visit the places related to the initial point of the boundary line immediately as a preliminary proceeding for the establishment of the aforementioned initial point; and this act is entered in duplicate in the respective books, signed and provisionally sealed by each of the Commissioners and by the Engineer Arbiter; and one of the copies is in the English language . Luis Matamoros .- Leónidas Carranza . Salvador Castrillo and W . Climie . E .P . Alexander Proceedings X Annex 52 116 In the Town of San Juan del Norte, at eight o’clock in the morning, on March the second of the year eighteen hundred ninety eight, in the customary place= the Commissioners for the State of Nicaragua being absent, as per their document dated January seventh of year eighteen hundred and ninety-eight, Engineer Andrés Navarrete, Commissioner representing the Government of Costa Rica, requested that, in compliance with Article V of the Matus Pacheco Convention of March the 27th 1896, the Engineer Arbiter participate in the delimitation operations that should be carried out in the absence of those gentlemen= The delimitation Commissions, being reincorporated with the participation of the Engineer Arbiter, proceeded first and foremost to emplace the Monument that determined the Initial Point of the dividing line on the Coast of the Caribbean Sea, linking it with the center of Plaza Victoria in San Juan del Norte= To that end, the following operations were performed= Astronomical observations to determine the azimuths = San Juan del Norte - January 1898 TABLE Note= The measurements taken on January the 23rd were recorded using a small Hildebrand theodolite, where the horizontal axis is adjusted directly; while measurements on January the 30th and 31st were recorded using a Salmoraghi tachymeter, where the horizontal axis is adjusted inversely= As geographic position for measuring these azimuths, the one corresponding to triangulation pole M° III [sic] described below was used . Said pole was placed in front of the location once occupied by the Church of San Juan del Norte, for which the Tables of Conaissance des Temps (bureau des longitudes), Paris, 1897, give: latitude: 10°-55’-14” N. and longitude 86°-02’-19”. Maxwell-1878-1895)= This Delimitation Commission Annex 52 117 adopted the above mentioned position, under every reserve, and as mere approximation aimed at deducing, in the various points of the line of operations, the elements needed to guide the alignments= The average of the foregoing calculations gives for the azimuths of the side (Δ-lighthouse) 153° 35’ 50”, therefore 153°-36’ 00 is adopted as sufficient approximation”=These azimuths are measured according to Geodetic Datum in direction S .W .N .E ., with zero at South= Triangulation aimed at linking the Initial Point Monument or first marker with the Center of Plaza Victoria in San Juan del Norte . TABLE CHART TABLE The coordinates of the Monument or initial marker, taking as origin the center of Plaza Victoria in San Juan del Norte, therefore, are = x = 4268 .28 East; y = 2004 .54 North; astronomical Meridian; which results that the distance from the above mentioned center of the plaza to the aforementioned (marker) monument is 4715 – 55 (four thousand seven hundred fifteen meters fifty-five centimeters) with a geodetic azimuth of sexagesimal 244° 50’ 23” (two hundred forty-four degrees, fifty minutes, twenty-three seconds) = Therefore the bronze plate mentioned in Proceedings No . VI of October 2nd 1897 shall be sculpted, bearing the marker’s coordinates and the following inscription = “This monument is located at a distance of 4715 - 55 with a geodetic azimuth of sexagesimal 244° 50’ 23’’ from the center of Plaza Victoria in Annex 52 118 San Juan del Norte” = It was also agreed to have reference markers emplaced in relation with the first monument, one on the opposite margin of the Harbor Head lagoon, at 1139 meters from the first in a location marked there, with an azimuth of 66° 41’ 05”; and the other in the aforementioned center of Plaza Victoria in San Juan del Norte = The following type was agreed regarding the markers that will serve as reference points for the first monument, that is to say: for the first 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 length, buried one and a half meters and filled with concrete; for the second, in the center of Plaza Victoria in San Juan del Norte, the same iron pipe, buried so that its upper end appears at ground level = then, in compliance with the Award issued by the Engineer Arbiter on December the 20th of 1897, the boundary line was measured as described in the Award of September 30th of 1897, starting from the initial marker, following around the Harbor and through the first channel met up to the river proper, and through this until pole No . 40 next to the source of the Taura River = (then, in compliance with the Award of December 20th of 1897 by the Engineer Arbiter) Said operations and their results are shown in the following table = Survey of the right margin of the Harbor Head lagoon and of the San Juan River, which constitute the dividing line between Costa Rica and Nicaragua = TABLE CHART TABLE Annex 52 119 TABLE TABLE TABLE Note: The abscissas or X are considered from East to West, while the Y or ordinates from North to South.= It should be noted that in the columns entitled “Points observed) the Arabic numerals accompanied by the letter “b” (abbreviation of “bis”) correspond to points located in the territory of Nicaragua that were surveyed solely for the purpose of aiding the operations:- points whose numerals are not accompanied by the letter “f” are located on the dividing line between both countries.- The angles were obtained by calculating the average of various observations”.- It was pointed out that, for greater clarity and with the permission of the Engineer Arbiter, it was agreed to include the results of the dividing line survey in the official records in small segments, instead of daily, which will also facilitate correcting the operations as necessary; and to position each point of the polygonal directrix linking them directly with the initial marker by rectilinear coordinates, whose zero or origin is assumed to be that monument .- And for the purposes of Art . 8 of the Matus – Pacheco Convention, we confirm all of the foregoing in these proceedings, which we sign and approve under our seals .- Corrigendum = On page 28 line 23 between the words “geographic” and “the one corresponding”, read “position of the observation”.- On page 28 line 30, between the words “pole” and “was”, read “No. III”.- And on page 28 line 21 the words “filled with concrete” are void.- On page 31, line 32, up to 34, the words “(then… “ up to “Arbiter”) are void.- On page 31 line 41 the numerals “365.83” = 323.90 = 170. 06 = written over what was erased are valid. On page 32 line 11 the numeral 66°10’00” = written over what was erased is valid. On page 32 Annex 52 120 line 12 the “77°13´00” written over what was erased is valid = on page 32, line 13, amendment 46°37´00”, is valid.= On page 35 line 26 in the “horizontal angles” column, read “189°31’40”” = In the following line of the same column read “323°08´40””, and in the following line of the same column read 345°38´40”- On page 36 line 7, 13, 14, of the azimuths column, the crossed out figures are void .**** E .P . Alexander Andrés Navarrete Annex 52 121 Annex 52 122 Annex 52 123 Annex 52 124 Annex 52 125 Annex 52 126 Annex 52 127 Annex 52 128 Annex 52 129 Annex 52 130 Annex 52 131 Annex 52 132 ANNEX 53 Letter from Costa Rica to Nicaragua, Reference DM-AM-107-13, 27 February 2013 English translation and Spanish original Annex 52 133 ANNEX 53 Letter from Costa Rica to Nicaragua, Reference DM-AM-107-13, 27 February 2013 English translation and Spanish original 134 135 Annex 53 136 Annex 53 137 ANNEX 54 Letter from Costa Rica to the International Court of Justice, Reference ECRPB-016- 13, 15 March 2013 (annexes omitted) English original 138 139 Annex 54 140 Annex 54 141 Annex 54 142 Annex 54 143 ANNEX 55 Letter from Nicaragua to International Court of Justice, Reference HOL-EMB-252, 9 December 2013 (annexes omitted) English original 144 145 Annex 55 146 Annex 55 147 ANNEX 56 Letter from Costa Rica to Nicaragua, Reference DM-AM-584-16, 14 November 2016 English translation and Spanish original 148 149 10 The Minister of Foreign Affairs and Worship San José, 14 November 2016 DM-AM-584-16 Excellency, I address you regarding the cases concerning “Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)” and “Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua)”. Costa Rica has recently become aware of the new positioning of a Nicaraguan military camp from its previous location on the beach separating Los Portillos Lagoon from the Caribbean Sea, to a new location on the beach of Isla Portillos to the northeast of Los Portillos Lagoon, situated on Costa Rican territory as determined by the Court in its Judgment of 16 December 2015 in the Certain Activities case . Costa Rica annexes the following images to this note: 1 . Annex 1, a satellite image of 5 July 2016 which shows the previous location of the Nicaraguan military camp, circled in red; 2 . Annex 2, an aerial photograph of 8 March 2016 which shows the previous location of the Nicaraguan military camp; 3 . Annex 3, a satellite image of 14 September 2016 which shows the new location of the Nicaraguan military camp, circled in red; 4 . Annex 4, a photograph of 7 November 2016 which shows the new location of the Nicaraguan camp; 5 . Annex 5, a superimposition of two satellite images of 8 March [sic][5 July] and 14 September 2016, on which a red line shows the change of location of the Nicaraguan military camp . His Excellency Samuel Santos López Minister of Foreign Affairs Republic of Nicaragua Annex 56 150 11 Costa Rica recalls that in its Judgment of 16 December 2015, at paragraph 229(1), the Court found that Costa Rica has sovereignty over the “disputed territory” defined by the Court at paragraph 69 of the same Judgment as comprising “the northern part of Isla Portillos, that is to say, the area of wetland of some 3 square kilometres between the right bank of the disputed caño, the right bank of the San Juan River up to its mouth at the Caribbean Sea and the Harbor Head Lagoon”, including “the beach”. In light of the above, Costa Rica vigorously protests this most recent Nicaraguan violation of its sovereignty and territorial integrity. Nicaragua’s actions further constitute a violation of the Court’s Judgment of 16 December 2015 in the Certain Activities case, which remains an active case whilst compensation from Nicaragua is pending . Costa Rica requests Nicaragua to remove its military camp from the Costa Rican territory in question, and to abstain from taking any action that may aggravate the dispute that is the subject of the Maritime Delimitation proceedings pending before the Court, or which may make those proceedings more difficult to resolve . Accept, Sir, the assurances of my highest consideration, Manuel A .González Sanz Minister Annex 56 151 12 Annex 1 Satellite Image, 5 July 2016 Annex 56 152 13 Annex 2 Aerial photograph, 8 March 2016 Annex 56 153 14 Annex 3 Satellite image, 14 September 2016 Annex 56 154 15 Annex 4 Aerial photograph, 7 November 2016 Annex 56 155 16 Annex 5 Superimposition of satellite images 5 July and 14 September 2016 Annex 56 156 157 Annex 56 158 4 Annex 56 159 5 Annex 56 160 6 Annex 56 161 7 Annex 56 162 8 Annex 56 163 9 Annex 56 164 165 ANNEX 57 Letter from Nicaragua to Costa Rica, Reference MRE/DMC/250/11/16, 17 November 2016 English translation and Spanish original 166 167 19 MINISTRY OF FOREIGN AFFAIRS Managua, Nicaragua Managua, 17 November 2016 . MRE/DMC/250/11/16 Mr . Manuel A . González Sanz Minister of Foreign Affairs and Worship Republic of Costa Rica Dear Minister: I address you in reference to your note DM-AM-584-16, in which you express your protest regarding the presence of a Nicaraguan military camp which, according to your note, is located on Costa Rican territory and request its removal from said territory which, as further indicated in your note, was allegedly awarded to your country as a result of the judgment issued by the International Court of Justice on 16 December 2015 . Allow me to point out that Costa Rica knows first-hand that Nicaragua has always exercised sovereignty over the sandbar that separates Harbor Head Lagoon from the Caribbean Sea, and both the International Court of Justice and Costa Rica have had knowledge of the presence of a Nicaraguan military camp on that sandbar for a number of years, regardless of its exact location . In this regard I must remind you that, contrary to what is alleged in your note, Costa Rica has recognized Nicaragua’s sovereignty over that sandbar in front of the lagoon on numerous occasions, most recently during the Oral Hearings held in April 2015 . At that time, Costa Rica noted that “the sandbar which separates the sea from Harbor Head Lagoon [ . . .] can only be considered as land capable of appertaining to a State in so far as it remains permanently above water at high tide and, if it does, it appertains to Nicaragua.” This was confirmed by the Judgment of 16 December 2015 . Consequently, this new claim by Costa Rica is unfounded and contradicts all actions and official statements made by your country . On the other hand, as you are aware of, and as recorded in the official maps of Nicaragua and Costa Rica for a number of years now, both countries have always considered as part of Nicaraguan territory not only the sandbar in front of Harbor Head Lagoon but also the entire stretch of coast abutting the Caribbean Sea which lies between Harbor Head Lagoon and the mouth of the river . Nicaragua cannot help but notice the particular moment in which Costa Rica has decided to make this new claim, especially taking into account the next on-site visit of the experts Annex 57 168 20 appointed by the International Court of Justice within the context of the case “Maritime Delimitation in the Caribbean Sea and the Pacific Ocean,”, a case which does not address this topic and for which the stage for submission of written pleadings has ended . Thus, the Government of Reconciliation and National Unity of Nicaragua rejects Costa Rica’s gratuitous protest and new claims, as well as any legal sense intended for them. I take this opportunity to reiterate the assurances of my consideration and appreciation . Denis Moncada Colindres Minister Advisor to the President of the Republic on International Policies and Affairs CC: File Annex 57 169 18 Annex 57 170 171 ANNEX 58 Letter from Costa Rica to Nicaragua, Reference DM-AM-628-16, 30 November 2016 English translation and Spanish original ANNEX 57 Letter from Nicaragua to Costa Rica, Reference MRE/DMC/250/11/16, 17 November 2016 English translation and Spanish original 172 173 Annex 58 25 The Minister of Foreign Affairs and Worship San José, 14 November 2016 DM-AM-628-16 Excellency, I refer to Nicaragua’s note MRE/DMC/250/11/16 of 17 November 2016 concerning the military camp placed and maintained on the beach of Isla Portillos west of Harbor Head Lagoon, responding to Costa Rica’s note DM-AM-584-16 dated 14 November 2016. Costa Rica regrets that Nicaragua has now made a new claim to Costa Rican sovereign territory, as determined by the International Court of Justice in its judgment of 16 December 2015 . Costa Rica rejects in their entirety the arguments invoked by Nicaragua in its note . Nicaragua’s attitude constitutes a rejection and a breach of said judgment . Should Nicaragua persist in its claim to and occupation of Costa Rican territory, Costa Rica reserves all its rights in terms of the legal avenues available to it . Accept, Sir, the assurances of my highest consideration . Mario Alexander Montero Campos Acting Minister His Excellency Samuel Santos López Minister of Foreign Affairs Republic of Nicaragua 174 Annex 58 24 175 ANNEX 59 Map of the Bay of San Juan del Norte showing the starting point of the dividing boundary between Costa Rica [and] Nicaragua, compiled by the respective Commissions on 30 September 1897, signed by Luis Matamorros and Leónidas Carranza Source: Francisco Xavier Aguirre Sacasa, Un atlas histórico de Nicaragua (Managua, Nicaragua: Fundación Vida, 2002) 176 177 Annex 59 178 179 ANNEX 60 Cartographic sheet 1:50,000 of Punta Castilla, Instituto Geográfico Nacional, Costa Rica, 1970 180 181 Annex 60 182 183 ANNEX 61 Cartographic sheet 1:50,000 Punta Castilla, Instituto Geográfico Nacional, Costa Rica, 1988 184 185 Annex 61 186 187 ANNEX 62 Cartographic sheet 1:50,000, San Juan del Norte, Instituto Nicaragüense de Estudios Territoriales, Nicaragua, 1988 188 189 Annex 62 190 191 ANNEX 63 Cartographic sheet 1:50,000, San Juan del Norte, Instituto Nicaragüense de Estudios Territoriales, Nicaragua, 2011 192 193 Annex 63 194 ANNEX 64 Aerial photograph of Laguna Los Portillos/Harbor Head Lagoon sandbar breach, 10 June 2012 195 ANNEX 64 Aerial photograph of Laguna Los Portillos/Harbor Head Lagoon sandbar breach, 10 June 2012 196 197 Annex 64 198 199 ANNEX 65 Aerial photograph of Laguna Los Portillos/Harbor Head Lagoon sandbar breach, 3 August 2012 200 201 Annex 65 202 203 ANNEX 66 Aerial photograph of Nicaraguan camp, 8 March 2016 204 205 Annex 66 206 207 ANNEX 67 Aerial photograph of Nicaraguan camp, 7 November 2016 208 209 Annex 67 210 211 ANNEX 68 Aerial photograph of Nicaraguan camp, 14 February 2017 212 213 Annex 68 214 215 ANNEX 69 Satellite Image, 5 July 2016 Full image and area enlargement 216 217 Annex 69 218 ANNEX 70 Satellite Image, 14 September 2016 Full image and area enlargement Annex 69 219 ANNEX 70 Satellite Image, 14 September 2016 Full image and area enlargement 220 221 Annex 70 222 Annex 70 223 ANNEX 71 Satellite Image, 3 October 2016 Full image and area enlargement 224 225 Annex 71 226 Annex 71