Dissenting opinion of Judge ad hoc Al-Khasawneh

DISSENTING OPINION OF JUDGE AD HOC AL-KHASAWNEH
Dissent is confined to land delimitation  Importance of putting to rest a long running
dispute  Ambiguity of 1858 Treaty  Producing no less than six arbitrations  And bilateral
commissions  And negotiations  Court dealing with various aspects of dispute since 2005 
2015 Judgment and present Judgments are res judicata  In conflict with earlier res judicata
decisions  Caribbean shore in general retreat  New point chosen by Court ephemeral  And
unjustified  Alexander Point submerged by sea but still identifiable  Mouth of river was not
crucial for territorial delimitation  Discontinuous, elongated lagoons suggest a recently
disappeared caño  Represent border between Parties  Harbor Head Lagoon and land barrier
under Nicaraguan sovereignty  But no maritime entitlements  Lack of reasoning and based on
hope  Clarification as to voting on dispositif.
I am essentially in agreement with my learned colleagues with regard to the maritime
delimitation effected in the Caribbean Sea and the Pacific Ocean. A difference of opinion with the
majority with respect to the scope of the concept of equity on delimitation in the Pacific warrants a
separate declaration and will be enunciated therein.
It is on land that I regrettably part company with my colleagues, as I am unconvinced of their
findings and remain unpersuaded by the reasoning underlying those findings. I must therefore
dissent.
Before explaining in detail the reasons that led me to take this position, I wish to make some
general introductory remarks.
It is incontestable that the aim of any judicial settlement is to put to rest, on the basis of law,
an existing dispute before a judicial body. In the case of the Court, the principal judicial organ of
the United Nations, a solution of an extant dispute on the basis of international law helps also in the
preservation of international peace  which is one of the highest aims of the Organization  and
in preventing or at least minimizing conflict between its Member States.
This consideration assumes a special pertinence in the present case(s) given a long history of
conflict, centring mainly on territorial disputes between the Parties, that started even before the
conclusion of the Treaty of Limits of 1858 between them. It says much about the “creative”
ambiguity of that Treaty that it has since generated no less than six Awards on its interpretation and
application, a number of bilateral commissions, and stalled bilateral negotiations right up to the
first recourse to the Court in 20051. The Court itself has had to deal with various aspects of this
ongoing territorial dispute, in the course of which it effected, in its 2015 Judgment, a partial and
imprecise delimitation of the area in question, the Northern Part of Isla Portillos. That partial
delimitation, curiously made in the context of a case on State responsibility, has undoubtedly the
force of res judicata. Moreover, the findings in the present Judgment are largely predicated on
those of the 2015 Judgment where, as a primary example, the Court chose the mouth of the
San Juan River, as it stood then, as the boundary between the two States rather than the original
starting-point of the land boundary fixed by General Alexander, which is now long submerged at
sea. The latter is nevertheless still identifiable and capable of providing a starting-point for
territorial delimitation by linking it to the nearest point on shore (see figures 84 and 85 of the
Report of the Court-appointed experts, reproduced below).
1 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Application instituting
proceedings filed by Costa Rica on 29 September 2005.
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Figure 84. Distances between the location estimated for Punta de Castilla to the closest land point on
a satellite image from 22 January 2016 and points Plw and Ple measured during the first site visit.
Figure 85. Distances between the location estimated for Punta de Castilla to the closest land point on a
satellite image from 22 January 2016 and points Plw2 and Ple2 measured during the second site visit.
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Thus, in effect, we are faced with two sets of conflicting decisions, each possessing the force
of res judicata: on the one hand, the Cleveland Award of 1888 and the First and Second Alexander
Awards of 1897 and, on the other hand, the 2015 Judgment, in which the Court, at paragraph 92,
concluded 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” and the present Judgment, which fixes the
starting-point for territorial delimitation at the sandspit at the mouth of the river (para. 71).
Had the shore as it stands today displayed any inclination to stability, there could have been
some justification to choose the new point(s), but the geographical and geomorphic realities of the
shore of the Caribbean in question attest that there has been an ongoing coastal retreat over the last
160 years since the conclusion of the 1858 Treaty. How literally true is Shakespeare’s sonnet:
“. . . I have seen the hungry ocean gain
Advantage on the kingdom of the shore”2.
This general coastal retreat will most probably continue. Both the Court-appointed experts
acknowledged this much and the Court concurred, resorting to a fixed hinge point at sea to ensure
against medium and long-term changes to the mouth of the river. Thus  and this is not without
irony  a point at sea possessing a long pedigree, which is described precisely in the 1858 Treaty,
the Cleveland Award, and the First and Second Alexander Awards, has been replaced by another
point linked to a hinge point at sea, the location of which varies according to where the mouth of
the river is presently situated. But we can safely predict that the mouth of the river is ephemeral
and may revert to empty again into Harbor Head Lagoon3. Would not the cause of the stability and
permanence of boundaries, a concept of paramount importance to an international society made of
sovereign States, have been better served, had the Court not abandoned the original delimitation
fortified by the force of res judicata in favour of a shifting river and an ongoing general coastal
retreat? And, should the existence of a lagoon enclosed from the sea by a sandbar and recognized
by both Parties to be under Nicaraguan sovereignty not have alerted the Court to the fact that the
area in dispute had been under Nicaraguan sovereignty before the river shifted to the north-west
and that a priori the sea-abutting shore between it and the location of the mouth of the river must
be under Nicaraguan sovereignty?
It is to these issues that I shall now turn. I start by acknowledging that, had the Court in its
2015 Judgment, and consequently in the present one, opted to commence the land boundary at the
original Alexander Point, this would not coincide with the mouth of the river at its right bank. It
would have left Nicaragua in possession of land on both sides of the river, but this is neither a
calamitous occurrence nor one not contemplated by the two Arbitrators, President Cleveland and
General Alexander. Thus, when President Cleveland was called upon to decide on “various points
of doubtful interpretation communicated by Nicaragua”, he decided, in point 3 (I) of his
1888 Award that:
“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.” (Award in regard to the validity of the Treaty of Limits
between Costa Rica and Nicaragua of 15 July 1858 (22 March 1888), United Nations,
Reports of International Arbitral Awards (RIAA), Vol. XXVIII, p. 209; emphasis
added.)
2 William Shakespeare, Sonnet 64 (1609).
3 Report of the Court-appointed experts, CRNIC-CRNIP 2017/18, p. 77, para. 195.
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Almost ten years later, when, in 1897, it had become clear that Punta de Castilla was already
submerged under the sea, General Alexander fixed the starting-point of the land boundary by
reference to that point. As Nicaragua points out in its written pleadings4, he was not looking for the
mouth of the River, which would have been a much easier task than trying to find out where
Punta de Castilla was located, because he recognized the latter to be where the fixed starting-point
for the border was to be found.
Any lingering doubt that General Alexander was looking for the mouth of the river is
dispelled by the operative part of his First Award. He expressly determined that the coast of the
eastern extremity of Harbor Head Lagoon was Punta de Castilla, and that from there “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”5 (emphasis added). It is abundantly clear
that the starting-point was not the river mouth.
There is also ample evidence that, in the bilateral commissions that met after the rendering of
the Award, both Parties viewed the original Alexander Point as the starting-point of land
delimitation and strove to identify and repair the first marker placed by General Alexander, which
had been submerged by the sea, by linking the Alexander Point to points further in land.
Indeed, when one assesses the position of the Parties over the past 120 years since the
Alexander Award was rendered, one cannot but notice that there had been long-term acceptance by
the Parties of the original starting-point of boundary delimitation and that this state of affairs
remained so until recently when the Court started to be seised by the disputes between the Parties.
Turning to the question of whether there is a water channel connecting the river and
Harbor Head Lagoon, I differ with my learned colleagues in drawing firm conclusions from the
existence of “elongated . . . coast-parallel lagoons.”
Figure 41: Report of the Court-appointed experts, CRNIC-CRNIP 2017/18, p. 35.
4 Dispute concerning the Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua),
Counter-Memorial of the Republic of Nicaragua, 18 April 2017, p. 25, para. 3.22.
5 First 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 (30 September 1897), RIAA, Vol. XXVIII, p. 220.
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While there is no continuous water channel connecting the lagoon and the river at present,
the experts indicated that “in the recent past” (emphasis added), there was a “channel-like water
gap between the spit and firm land, and that the Los Portillos/Harbor Head Lagoon was connected
to the sea via the San Juan River”6. Given this, I respectfully believe that the firm inference my
colleagues made somewhat hastily from the fact that, at the time of their visit, the experts found
this channel to be disconnected, does not lead to the conclusion that the shore abutting the
Caribbean and the partly dried channel is under Costa Rican sovereignty.
It is worth recalling that in arid parts of the world it is common to delineate boundaries by
reference to dried or partly dried river beds. I am strongly inclined to the view that those elongated
but discontinuous lagoons running parallel to the Caribbean shore were what was meant by the
experts when they spoke of a channel-like water gap between the pit and the firm land that existed
“in the recent past”7.
This I believe is the boundary between the Parties. The majority however dismissed this
evidence and chose to believe that such a caño had been submerged by the sea. But this conclusion
is not supported by any evidence and remains pure conjecture.
Turning to the sand barrier separating the water of the lagoon from the sea, which is
recognized by Costa Rica to be under Nicaraguan sovereignty “in so far as [it] remains above [sea
level]”8, the Judgment came to the conclusion that it does not generate maritime entitlements.
This conclusion is totally unreasoned. No analysis is offered as to why a piece of terra firma
abutting the shore should not have maritime entitlement, not even in the territorial sea where
judicial discretion is expressly constrained. It is self-evident that this conclusion has no basis in law
and is no more than a necessary consequence of the wrong decision on the appurtenance of the
shore from the end of the sand barrier till the mouth of the river to Costa Rica.
Not knowing what to do with this inconvenient fact, the Court decided to do nothing in the
hope that the hungry waves and the sands would rectify what the Court did not do, thus giving a
new and literal meaning to a line by Hafez of Shiraz: “The house of hope is built on sand”9.
It is equally possible that the early demise of the sand barrier will not meet the Court’s
expectations and that through sedimentation or human actions the lagoon itself will transform into
terra firma enclosed in Costa Rica’s territory, but not entitled to a maritime space. The Court’s
decision carries the seed of a future dispute.
Before ending this dissenting opinion, I wish to make two clarifications:
First, paragraph 2 of the dispositif amalgamates two proposals that are in reality eminently
separable, namely Costa Rican sovereignty over the whole northern part of Isla Portillos, including
its coast and, as an exception, Nicaraguan sovereignty over the Harbor Head Lagoon and the
sandbar separating it from the Caribbean. I had no choice but to vote against the paragraph as a
whole. This vote in no way detracts from my opinion that the lagoon and sandbar appertain to
Nicaragua.
6 Report of the Court-appointed experts, CRNIC-CRNIP 2017/18, p. 26, para. 100.
7 Ibid.
8 CR 2017/14, p. 27, para. 10 (2) (a) (Ugalde Álvarez, Final submissions in the Land Boundary case).
9 Shams-ud-din Mohammed, better known as Hafez of Shiraz (born circa 1320 CE) is one the greatest poets not
only of Iran and Islam but of humanity at large. The full quotation is:
“The house of hope is built on sand,
And life’s foundations rest on air”.
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Secondly, I voted in favour of paragraph 3 (b) of the dispositif which finds that Nicaragua
must remove its military camp from Costa Rican territory. This vote reflects my view that
notwithstanding my continued opinion that the area in question is not Costa Rican, in view of the
earlier finding of the Court in paragraph 2 of the dispositif, the withdrawal of the military camp is a
necessary consequence of that finding.
(Signed) Awn AL-KHASAWNEH.
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