INTERNATIONALCOURTOF JUSTICE
DISPUTE CONCERNING
NAVIGATIONAL AND RELATEDRIGHTS
(COSTARICA v.NICARAGUA)
MEMORIALOF COSTARICA
VOLUME 1
29August 2006 TABLEOFCONTENTS
Page No
Chapter 1 Introduction .................................. 1
Scopeof theDispute ............................ 1
TheCourt'sJurisdiction .......................... 3
The Structure of this Memorial .................... 4
Chapter 2 GeographicalandHistoricalBackground .......... 7
A . The geography of the SanJuan basin ............... 7
B . Historical background ........................... 9
(1) The San Juan River under Spanishrule
(1492-1821) .............................. 9
(2) The post-independenceperiod (182 1.1856) ..... 11
(a) The proposed trans-Isthmian canal ....... 12
(b) The Britishprotectorate over
the Mosquito Indians .................. 12
(c) Agreements between Great
Britainand the United States ............ 14
(d) Conflicts arising fromthe
intervention of the filibuste............ 14
(3) The conclusion of the Treaty of Limits 188 ..... 15
Nicaragua'schallenge to the Treatyof
(4)
Limits and the ClevelandAward 1888 ......... 16
(5) Implementation of the Treaty of Limits
after 1888:theAlexanderAwards ............ 20
(6) The 1916Judgment of theCentral
American Courtof Justice .................. 21
(7) Later developments ........................ 25
Chapter 3 The Disputebefore the Court .................... 27
A . Overview ................................... 27
B. Nicaragua's violationsof Costa Rica's sights
between1980and1998 .......................... 27
Nicaragua's violations from 1998to the present ....... 33
Attempts by CostaRica to resolve the dispute ........ 37 (1) Commerce as communication ................ 119
(2) Commerce as transportationof goods
and persons (including tourism) .............. 123
D . Breaches of Costa Rica'srights of protection
of commerce.safeguard. defence and re-supply
of police posts................................. 124
E . Breaches of other RelatedRights .................. 132
(1) The rightto land atany part of the Nicaraguan
bank of the River where navigation is common ..133
(2) Facilitation of traffic onthRiver ............ 133
(3) Customary rightto fish in favour of residents
of the Costa Ricanbank .................... 134
F. Conclusions ................................... 135
Chapter 6 TheRemedies sought by Costa Rica .............. 137
A . Introduction ................................... 137
B . Declaration ofviolations of Nicaragua's obligations ...137
C . Cessation of continuing internationall.
wrongful conduct ............................... 139
D . Full Reparation ................................ 140
...............................
(1) Restitution 141
(2) Compensation ............................ 141
E . Assurances and guaranteesof non-repetition ......... 143
F . Conclusions ................................... 144
Submissions .............................................. 147
Appendix A The status of the San Juan River in
internationallaw .............................. 149
I The San Juan is an international river.............. 149
I1. General international law concerning navigational
rights on international waterwaysand its relation
to the dispute.................................. 155
111. Conclusions ................................... 157Appendix B The Revenue Guard: Creation andDevelopment ...159
List ofAnnexes
Volume2: Agreements.Awardsand JudicialDecisions ....173
Volume3: Diplomatic Correspondence ................. 179
Volume4: AEdavits ................................ 187
Volume5: PressReports ............................. 191
Volume6: OtherDocuments ......................... 199 Chapter 1
Introduction
A. Scope of the Dispute
1.01. The present proceedings were commenced by an Application which
was filed with the Registry on29 September2005. They concern breaches by
Nicaragua of Costa Rica'srights of navigation and related rights in respect of
the San Juan River (hereafter "the San Juan"). These rights are set out in a
series of treaties and decisions commencing with the Treaty of Limits of 15
I
April 1858("the Treaty of Limits"),l
1.02. Costa Rica is a Central American Republic bounded on the north by
Nicaragua and on the south by Panama. The territorial scope of the present
dispute concerns that part of the boundary between Costa Rica and Nicaragua
that follows the course of the San Jum. It is shown on Sketch Map 1,
opposite.
I
1.03. The San Juan is a major river which flows from Lake Nicaragua in a
generally easterly direction to the Caribbean Sea, a length of about 205
kilometres. For muchof that distance (from belowCastillo Viejountil near its
mouth) the southern or right bank of the River constitutes the boundary
between the two States.
1.04. The present boundary between Costa Rica and Nicaragua was first
established by the Treaty of Limits. It left the waters of the SariJuan within
Nicaragua, but at the same time the Parties expressly recognised important
Costa Rican rights of use of the River, in particular perpetual rights of free
navigation of boats and passengers sailing to or from Costa Rica for
commercial purposes. The validity of the Treaty of Limits was subsequently
challenged by Nicaragua and was upheld in an arbitral award issued by the
CostaR~CRandNicaraguTrcatyof Lirnlts,Sanl15April 18(sometimereferrtoactheCsAas-Jcrkz
Treaty).InthisMemonal,unlessotherwiseind~catedt,heEnglishtranslatioofLlmits which will
be used is the one submittedby Costa K~cato Presrdent Cleveland:sec Annexe7(b).Thc Annex
authoritatSpanishtexisstAnnexes,Vol 2, Ann7(a) Also annexedarc the transaubmltteto
PresidentClevelandbyN~caraa:nexesVol2Annex7(c),anda tnnslationpublishcdInBritishandFore~gn
StatePapers AnnexVol2,Annex7(d).President of the United States of America, Grover Cleveland, on 22 March
1888 ("the Cleveland Awardm).2 At the same time the Cleveland Award
confirmed and authoritatively interpreted the extent of Costa Rican rights of
use of the River. These rights were further specified (with the force of res
judicata) by the Central American Court of Justice in its judgment of 13
September 1916 in the case Costa Rica v.Nicaragua rthe 1916 Judgmentm)3
and they were supplemented in the Agreement pursuant to Article TVof the
Pact ofAmity,Washington,D.C., 9 January 1956 ("the 1956Agreement"), in
particular articles1 and 2.4
1.05. Costa Rica's rights of navigation on the River were and remain of
considerable significance. The area contains national parks and forest reserves
on both sides of the River. There are few roads,and none which proceed to the
Caribbean coast in an east-west direction. The normal method of transport is
by boat;this includes public transport, local trafficby riparians goingto market
or to school, and transport for the growing tourist industry. In short, the San
Juan is for manypurposes the only road.
1.06. Since the 1990s Nicaragua has imposed and maintained important
restrictions on the navigation of CostaRican boats and their passengers onthe
San Juan, restrictionstending to deny the substance of Costa Rica's rights
entirely.These include the following:
(a) the imposition of charges on Costa Rican boats and their
passengers;
the obligation to stop successively ateach Nicaraguan military
(b)
post on the Nicaraguan bank of the River to report the namesof
the passengers and to obtain authorisation to navigate or, as the
case may be, to continue to navigate, on the River;
(c) the prohibition imposed by Nicaraguan authorities on Costa
Rican police personnel and their boats to navigatethe SanJuan
River, with or without their service weapons (armas de
reglamento);
2 TheAwardwas givinEngl~hhs:ee PapersrclatingtotRclatloorthe UnitedStatcs,1I5:6-9:
Annexes,Vol2, Ann16.
3 Englishtranslpublishin(191711AJIL 18AnnexesVol2, Anne21
4 1465UnttedNatlonsTrSerie233:AnnexeVol2, Anne24. (d) the imposition of timetables for navigation on the River;
(ej the obligation to use the Nicaraguan flag as a precondition for
navigating on the River;
(f) limitationsto free moorage along the banksof the River; and
(g) other limitationsto expeditious transiton the River.
1.07. Since the Application was filed, Nicaragua has tightened existing
restrictions on the use of the River and imposed new ones, in particular
requiring a passportand (for Costa Ricans) a visa, and prohibiting CostaRican
riparians from fishingin the River.
1.08. Inthese proceedings Costa Ricaseeks, in particular,the cessation of all
Nicaraguan conductwhich preventsthe free and fullexerciseand enjoyment of
the rights that Costa Rica possesses on the San Juan, and which also prevents
Costa Rica from fulfilling its responsibilities to guard and protect the River
under article 1Vofthe Treatyof Limitsandarticle 2 of the 1956Agreementand
otherwise,
B. The Court'sJurisdiction
The Court hasjurisdiction overthe present dispute in accordance with
1.09.
the provisions of article 36, paragraph 2, of its Statute, by virtue of the
operation of the following:
(a) the declarations of acceptance made respectively by the
Republic of Costa Rica dated 29 February 1973, and by the
Republic of Nicaragua dated 24 September 1929;
the Tovar-CalderaAgreement,Alajuela, 26 September 2002.5
(b)
1.10. The Court also has jurisdiction over the present dispute in accordance
with the provisions of article36, paragraph 1, of its Statute, by virtue of the
operation of article XXXI of the American Treaty on Pacific Settlement of
Disputes, Bogota, 30 April 1948(the Pact of Bogot8).6 The Parties have also
5 2197UnitedNatlo-1'rcSer~e78 AnnexesVoI2, Anne29
15 30 Utliced~VoaoarTwSe~ir55. BoCostaRica aNicaraguarepartitothePacof Bogoti.expressed their mutual commitment to the Pact of Bogota through the Pact of
Amity,Washington,D.C., 21 February 1949,article 111.7
1.11. Under the Tovar-Caldera Agreement, in consideration of Nicaragua
maintaining unchanged for three years the legal status with respect to its.
declaration of acceptance of this Court, Costa Rica agreed during the same
period not to initiate any action "before the Court nor before any other
authorityon anymatter or protest mentionedintreaties or agreements currently
in force between both countries". The purpose of this Agreement was
expIainedbythen President Bolaiiosof Nicaragua in the following terms:
"wealwaysacknowledgethe InternationalCourtandpreciselywhatwe are doing now
is establishinga standstilperiod, but I am certainthat in three yearsNicaragua and
CostaRica will not needto have recourseto any court."8
1.12. Duringthe three-year standstillperiod, the twoPartieswere indeed able
to make progress on a number of important issues for the Central American
region, to their mutual benefit. Unfortunately, however, the dispute over
navigational and related rights on the San Juan remainsunresolved. It is this
dispute which is now submitted to the Court.
C. The Structure of this Memorial
1.13. This Memorial is filed in accordancewith the Court's Order of 29
November 2005.
1.14. The Memorial consistsof five further Chapters, as follows:
Chapter 2 sets out the necessary geographical and historical
backgroundto the issues, in particulartracing theprocess by which the
Treaty of Limits was agreed, applied,upheld and interpreted both by
the Parties and in the course of third-paw dispute settlement;
' 146Un~tedNorionrTveafySerie:Annexcs, Vol2,Annex23
' In Spani~h"S~erneeconocernosa la Corte Interl loquecstarnoshacicndaprec~samentees dar un
compasdecspera, pestoyscgurquedentrde tresafNicaraguaCostaRicno vamoa neczsitaracudlr
a ningunaCorte". Statty Presidet ulafasreporteIn"The SanJuan Fro~en",LaPrew. Managua,
27 Scpternber2002:Annexcs5,Annex178. Chapter 3 traces the emergence of thedispute submitted to the Court
and details the attempts by CostaRica to resolve it;
Chapter4 sets out the scopeof the Costa Rica'srights under theTreaty
of Limits, subsequent agreements and decisions and general
internationallaw;
Chapter5 details the breaches by Nicaragua of those rights;and
Chapter 6 sets out the remedies soughtby Costa Rica at thisstageof
the proceedings.
1.15 In addition, AppendixA outlines certain issues relating to the statof
the River in international law, and Appendix B describes the evolution and
functions of the CostaRican Revenue Guard (ResguardoFiscal)on the River.
1.16 Annexed to this Memorial are five volumes of documentary annexes
(Annexes 1-245). A list of annexes isprovided at the end of this volume. Chapter 2
Geographicaland HistoricalBackground
A. The geographyof the SanJuan basin
2.01 . The SanJuanruns approximately205kilometres from LakeNicaragua
to the Caribbean Sea. In earlier timesthe River was also referred to asthe
Desaguadero,because it constitutes theonly natural outlet of Lake Nicaragua
to the sea (the termdesaguadero means "outlet"). It flows within the largest
river basinin theCentralAmerican isthmus. The geographical extensionofthe
basin is defined by Lake Nicaragua, the SanJuan River system, the basins of
the Indio and Maiz Rivers in Nicaragua on the north and the Costa Rican river
basin system on the south. For the courseofthe Riverwith somekey locations
see SketchMap 2 opposite.
2.02. The SanJuan lies completely within thetropical region, but differences
in altitude and relief allow for a certain climatic diversity. The central
mountain chain permits the definitionof an eastern region with a tropical rain
forest and rainfall between 4,000 and 6,000 mrn per year; a western zone or
tropical savannah region locatedin the drainage area of Lake Nicaragua, with
rainfall ranging fromTOO to 2,500 mtn but witha verymarked dry season; and
an intermediate region with rainfall of more than 2,500 rm and without a
marked dry season.
2.03. Theupper stretch ofthe River, to the mouth of the San CarlosRiver in
Costa Rica, is narrow, deep,without islands and with few rapids. By contrast
its lower stretch, downstream from the mouth of the San Carlos, is wide,
shallow and has several isletas well as a stretchwhere there are significant
rapids. As will be seen from Sketch Map 2, theSan Juan divides some 19.3
kms from the sea. The San Juan itself is thnortherly ofthe two rivers and
empties into theCaribbean Seaat theBayof SanJuan delNorte. The Colorado
River is the southern and larger stream: it runs entirely within Costa Rica,
reaching the seaat Barra del Colorado.
2.04. The tributaries of the northern sector of the San Juan flow through
Nicaraguanterritory. They are shortinlength, generally orientednorth tosouth --7-7-Unpmedroedlpassalblao~nwringdryseason1
-- IllMliarnatillmita
- F~renav~igdizrne
Rlwess
~- i!
li
Sketchmap 2
---and have gentle slopes. Thelargest of these is the Sabalos. The tributariesof
the southern sector originate in Costa &can territory at elevations of up te
3,000 metres. Except for those which flow into Lake Nicaragua, these
tributariesare located entirely within Costa Rican territory. They have more
extensive drainage basins and contributeup to70% ofthe total flow ofthe San
Juan. The most important of these southern tributaries arethe Sarapiqui and
the SanCarlos.
2.05. As will be seen from Sketch Map 3 opposite, various small townsand
villages are located alonor near the SanJuan.Onthe Nicaraguan side are the
towns of CastilloViejo,SanCarlosand the villages of ElCastillo and SanJuan
del Norte. On the Costa Rican side the villages include: Tiricias, Jocote,
Crucitas, Finca Baladuca, San Antonio, Jardin, Chorreras, Flor, Boca San
Carlos, La Curefia, Remolinito, Boca Sarapiqui (also known as Trinidad),
Tigra, Fatima, Delta Costa Rica and, further south-east, the town of Barra del
Colorado.
2.06. The population of the region (numbering in the thousands)mostly
depends on agriculture and fishing. Poverty remains widespread, and access
by road and air is very diEcult given the natural configuration of the zone.
There are no railways and no sealed roads along or paraIleP to the River.
Communication between the villages and farms along the San Juan is almost
entirely riverine. But tourism is already a significant contributor to the
economy and has great potential for development. Sketch Map 4 (on the
following page) shows the protectedareas andwildlife reservesalongtheCosta
Rican bank. There arealsosirnil rserves ontheNicaraguan side. Theregion
is one with significantbiodiversity.
2.07. At the mouthof the San Juan is a complex area of marshland and
waterways linking the River with the Bay of SanJuan del Norte. In the 19th
centurythe Baywas a major port with deep water access, even though (atthat
time as today) most of the water flowing in the San Juan upstream of Delta
Costa Rica went down the River Colorado. During the course of the 19th
century the Bay of 5an Juandel Norte became increasingly silted up, a
situationwhich has continued to thepresent dayand isshown on Sketch Map
5 following. The porttown of San Juan delNorte wasoriginally located on theFarilllustrateusposes only [PI
Bay; from 1848 (duringthe period of the British protectorate of Mosquitia) it
was named Greytown. Following the silting of the Bay and the decline in
trans-Isthmian traffic which resulted from the opening of the Panama Canal,
Greytown was abandoned and the village of San Juan del Norte moved to an
arm of the bay to the north.
B. Historicalbackground
The SanJuan under Spanishrule (1492-1821)
(1)
2.08. Duringthe periodof Spanishcolonialrule the SanJuan never belonged
exclusively to any one of the provinces of the Captaincy-General of
Guatemala. The position of the SanJuan Riverwas first defined by the King
of Spain'sRoyalOrdinance of 29 November 1540 to Diego Gutikrrez, forthe
conquestof the Province of Cartago.9 Under this Ordinance the River was
divided into two. The upper part, 15 leagues in length from its outlet in the
Lake,wasto belongto the Province ofNicaragua. Thelowerpart, to the mouth
ofthe river on the Northern or Caribbean Sea, was to belong to Costa Rica. As
far as concerned the use of the River and the Lake for purposes of navigation
and fishing,it wasprovided that both shouldbe common to the two Provinces
without distinction. Thus,the Royal Ordinanceto Diego Gutierrezprovidedas
follows:
"Firstly,I grant you license andfacultyso that on our behalf and inour name and that
of the Royal Crownof Castille you may conquer and populate the land that remains
for us in said Province of Veragua inclusive from sea to sea.. measured in thesaid
manner must commence your conquest and population,and end atthe Rio Grande,
towards thewest of the other partof Cape Camarbn, the coast of said rivetowards
Honduras remaining underthe governanceof the saidprovince of Honduras, alsoif in
said rivertherebe islands populatedor tobe populated with Indians, which have not
been populated and conquered by Spaniards, you can conquer them, and the
navigation and fishingand other usesof the saidriver shallbe common, provided and
insofar as you do not come within fifteen leagues of the lagoon of Nicaragua, since
thosefifteen leagues and with the saidlagoon muststay and staysto the governance
Capitulacicon DiegGutitrrparalaconquistade la Provinciade Cartago,29 November 1540,in MMde
Peralta, Corta-RlcuNicurupu y PanntSighXVIsu HrrlurisusLin~rr(Madrid.LibreriaMurillo,
I883)(hereafPeraha)10-103:AnncxcVol2,Anncx1.of Nicaragua; but thenavigationand fishingthat remains with you in said rivcr, arid
the said fifteen leagues and the lagoon that remain with Nicaragua shall be
common.. ."'0
2.09 The condition of the San Juan in regard to this territorial arrangement
was reaffirmed by the King of Spain through a Royal Ordinance (Real
Provisibn) issued on 6 May 1541 .l
2.10 This situation was reflected in the instrument of appointment of Don
Juan deCavallonasAlcaldeMayor of the ProvinceofNew Cartagoand Costa
Rica in E551. The appointment was made on 17May 156 1 by the Azkdiencia
of Guatemala, by order of the King. It described the limits of hisjurisdiction
as follows:
"As far as the boundary of the city of Nata and itsjurisdiction, in the Kingdom of
Tierra Fime, othewisc calledCastilla del Oro, and then along this line to the limits
of the Dukedom of Veragua, and from the Southern Sea to the Northern Sea up to the
Desaguadero, thisbeing ineluded."l2
2.11 These jurisdictional limits were continuously understood as the
territory of CostaRica. Inthe years prior to 1821,when Spanish colonial rule
ceased, no alterations of importance were made by the Crown in the limitsof
Costa Rica in the area of the San Juan. Disputes only arose Eater in the
nineteenth century.
Translationby Costa Rica. OriSpanish"Pnmeramenle,vosduy Ilcenc~ay facultadparapor nosyen
nuestroombrcc dc la CoronaRealde Csstillapodaysconquistary ptlerquequeda parnos en la dicha
provinciadeVeragua,ynclusademara m..mcdldasdc la maneraquedichaes,hade cornencarla dichavuestra
conquistay poblaqiony acabaeEKioGrande,hac~aPonlentdc la otm panc dcl cabo del Camcon que
lacosta deldicnuhaciaHondurasquedeen la goberna~ionde la dichaprovlnciadc Honduras,c amsirsmo
en el dlchwrlo ovierealgunasyslas pobladasn por poblardc yndios,y no cstuvierenpohladasy conguisladasde
espa~ioles,Laspodeysvos conquistar,y quc Is nsvcgaqion y pcsca y otros apmvechamlentosdel dlcho rlwbean
comunes,c ansy mismo,con tanto quc no ll3la lagunadeNicaraguconquince leguaporcuanto estas
quinccleguascan la dicha lagunaa dcqucdar e quedea la gobemapon deNicilrilgua;perwla navegaqiony pesca
dc lauca vosos quedeneldlchorrio.ylasqulnzeleguasy lagunaquequedan a Nicaraguahade ser.".un..
Anncxcs,Vol2, AnnexI
l1 Real Provisionde SS.MMel Ernperadoryla KcinaDofiaJuana sobre lo?demla gubemacionde Cartago,
y en particular sabrc 10sdcl Dcsaguaderoo San Juande Nicaragua, 6 May 1541, in Peralta, 125-21
Annexes,Vol2,Annex2
IZ "Tlluldc Alcalde Mayor de basProvincias de Nueva Cartago y Costacn favordelLicenc~adJuan
Cavallon Limitesdc estas Pmvlnc17sMay 1561,ln Peral194-5Annexes,Vol2,Annex3. The"Southern
Sea" is thecificOcean;the "Northcm Sea" theCaribbeanSea(2) The post-independence period (1821-1856)
2.12. The independence from Spain of the Central American Provinces was
declared on 15 September 1821 .I3 In addition to establishing their own
constitutions,the States of Guatemala,El Salvador, Honduras,Nicaragua and
Costa Rica combinedto formthe FederalRepublic of the United Provincesof
CentralAmerica (1823-1839). 1"
2.13. The Fundamental Law of the State of Costa Rica of 25 January 1825,
Article XV,reasserted the limits of Costa Rica, establishing that theterritory
reached both seas and extended from south to north, "being its limits on the
north the mouth of the San Juan River and the shield of Veraguas ...'"15
Likewisethe Decreeof Basis and Guaranteesof 1841,established the limits of
the national territoryof Costa Rica, declaring the limitof the national territory
in the followingterms:
"On the west, theLa Flor River and continuing its line along the shore of the Lakeof
Nicaragua and the San Juan River, down to the rnouth of the latter on the Atlantic
Ocean; onthe north, the same ocean from the mouth of the San JuanRiver to the
Shield of Veraguas.. ."IS
Those were also thelimits set forth in later Costa Rican constitutionsprior to
the Treatyof Limits. 17
l3 Ail the tcrritorics today cornpCosta Rlcaand Nicaraguawere ildm~nisteredby Spain asthe Captaincy-
Gcncral of GuatcmslaTheCapta~ncy-Generalbecame Independen1FromSpmn on 15September 1821 It was
incorporatedintheMexlcan Emplreof Augus~inde Iiurblon 5Panu'a'y1822,but separated from Mexico in
July 1823.A Constitutian of the Cc~~l nicrlcarl Fcdcration was adopte22oNovember 1824 The
Federat~ocomprisedGuatemala, El Salvador. HondurNicaraguaand CostaR~ca Nicarabwaseparated from
the Fcdcrationon 30April 1838and thc Fcdcratlon was subsequenilydissolved
l4 See J SQenzCarbonell. H~~tr~arpti~mrjiac CijrfaRlc(1821-1910)(1st edn, SanJost: EditorialJuricentro,
1996). 39-42, and the recital by a Chambcr ol*the CLand iIrland and Maritime Fmnt~erDispute (EI
Sulvlrdor/llondurh'icur(zguaInternmind, I.Rcports 1992,p35I, in part~cular61(paragraph402-3).
l5 FundamentalLaw oftheState uf Costa Rica, 25 Jan1825,Article 15,Coleccidnde CorrsatucdaeCoslu
Rrca Drl pucfo de Cr~n~ordo Iu~(~nshf~rrinolitlro de 194(San Josk, IrnpreNational,2000),80-1:
Anncxcs,Vol6, Anncx193.
l6 Decreeof Baslsand Guarantees of Costa Rica, RMarch 184I, Ar1.I, nrgesro ConstiiucionnIdt?CosinK~ca
(SanJosC Calegio de Abngados, 1946).89 Annexes,Vol6,Annex 194.
Constihtian of 9April 1844,Articlr 47, D~gesroConstr~ucC'rj.RICU(,San Jo~e.ColegindAhogados,
1946). 107:Annexcs,Vol6.Anncx 195;Constitutionof 10 Febru1847,Aflicl25, DrgestCr~nstrtucionadlr
Co.rruRICO(San JasC: Colcgio dc Abogado~, 1946). 130 Annexes, V6,Annex 195,Cunst~tutiunof 30
November 1848,Art~cZ7, Digesfo Cr~nsfitucmieCortu Rioa,(SanJost.Coleg~ude Abogados, 1946), 154:
Annexes,Vol6,Annex 19R The 1859Constitution reflectednewesituation arisingftheTreatyof Limits:
Constitutruof27 December 1856, Art~cle4. DrgesioConstriucior~adCosfuRica (San JosC. Calcglo de
Abogados. IY46),169.Annexes.Vol6, Anuex203.2.14 At this time the principal territorial issue between Costa Rica and
Nicaragua concerned the latter's claim to the Nicoya peninsula on the Pacific
coast. In t824 the people of Nicoya opted by plebiscite to become partof
Costa Rica, a decision approved by decree of the Central American Federal
Congress on 9 December 1825.18 This situationwas not finally accepted by
Nicaragua until the Treaty of Limits of 1858.
2.15 In the period prior to the conclusion of the Treaty of Limits, four key
circumstances were at play in tenns of the relations between Costa Rica,
Nicaragua and third States. Brief referenceneedsto be madeto each of these.
(a)The proposed trans-lsthmian car~al
2.16 The independence of the Central American Provinces from Spain
coincided with thegrowth in interest in an interoceanic canal. At the time(and
for most of the century) itwas thought thatthe route via the SanJuan and Lake
Nicaraguawaspreferable tothe Panamaroute. From 1826,a series of contracts
and treaties were negotiated which envisaged an interoceanic canal by way of
the San Juan and Lake Nicaragua. Most of these contracts and treatieswere
negotiated with Nicaragua, although the earliest contracts were negotiated by
the Central American Republic and subsequent to the dissolution of the
federation Costa Rica was also closely involved as a Party, solely or jointly.
Negotiations over the proposed canal continued after the Treatyof Limits was
signed: these are addressed below.
(b)TheBriti srotectorcrte over theMosqzdito Indians
2.17 There was a long-standing British interest in the Caribbean coast of
CentralAmericsa,referred to as the Mosquito Coast. Article 6 of the Treatyof
Peace between Great Britain and Spain of 3 September 1783 affirmed that
English wood-cuttershad the right to operatebetween the River Belizeand the
River Hondo (a coast corresponding roughly to present-day Belize) and
provided for commonnavigationby both Statesalongthe rivers.19Nonetheless
an English presence remained along themore southerly Mosquito Coast after
C ObregbQucsada,lRiSunJuanCTla luudeIns,rorencra.s(182(stedn, SanJoEUNED,2001),
45.
l9Treaty of Pebetween GreatBrlta~nandslgncaVcrsaillcScptcmbc17X3,4XCTS 48I, 484-5.the 1783treaty. A formal base for this was asserted in 1844 when Great Britain
proclaimed a protectorate over the "Kingdom of the Mosquitos", i.e. the
Mosquito (Meskito) Indians who inhabitedthe region.20 A statement by the
British Foreign Office dated 30 June 1841 declared that the Mosquito
Protectorate extended from San Juan del Node to CapeHonduras-21In 1848
Great Britain, with the aid of Mosquito forces, seized San Juan del Norte,
renaming it Greytown.
2.18 According to the Report accompanyingthe Awardof 2 July 1 881 in the
Mosquito Coast Arbitration,. Great Britain by the 1850 Clayton-Bulwer Treaty
and the 1852 Crampton-Webster Treaty "tacitly renounced" its protectorate
over the Mosquito Coast.22 Article I of the Clayton-BulwerTreaty provided,
inter aliu, that neither the United States nor Great Britain would exercise
dominion over the coast.23 But it remained to settle definitely the relation
between the Mosquito Coast and the rest of Nicaragua. That issue was
addressedin the Treaty ofManagua of 28 January 1860, by whichGreat Britain
expressly renounced the protectorate in favour of Nicaragua, subject to a
temporary guaranteeof local autonomy for the Indians and with San Juan del
Node as a free port.24
20 Memr)randumon the MosqllitoShorc, FO. 15 Uccc~nber1843:MacdonaldtoAberdeen, 20 December 1843,in
FO 15/16, Rodriguez, 24n 28.
I'allnerston,No 130 June 1R47,F0. 15/44,cltcd by Radriguc2851)59.
22 Trcaty bctwcenGreatBritain and Nicaraguarelato thMosqu~toIndlansand the Rightand Clalrnsof Britlsh
Subjects, Managua,28 Ia~~ua1860: 121CTS 317 See MvryurfoCOU.~ A/rbill-uriAwardof thc Ernpcrorof
Austria as to the Interpretatior~tu be put un cerlainArliclcsol'theTreaty bctwccnGrcat Britain and Nicaraguaof
28 Iaauary 1860,Vienna2July IR81,artI,reprinted, BFSP 121 2;RcportaccornpanylrlgthcAward,in tLa
Fontdine,Prrs~~rrsrehltrrnu/~untrle1794-1900 (19reprintedNijhnff'l'he tdague. 1997)387 (hereafter
Fr~siur~arleizl~rnulro~~~le).
23 Cvnventlon li,Faciliiaiing and Protectingthc Canstn~ctlonof a Ship Canal between the Atlantic and Pacific
Oceans ctc hctwccn Grcat Britalti and the United States, WashiD.Co,,19April lR50(Claylmn-Bulwer
Treaty), 104CTS41,42-3:Annexes,Vol2,Annex 4.
24 See rtft~.~qr/ousfArbrrrtrlroV~cnna,2 July1881,an I, reprinted, 12BFSP1212,Report accompanyingthe
Award,in PusicrurrIfrrcvnnriunr,87:
"In dem Yenrage vo11Managua wurcleuun England dds Prr~tecloruberdas Mosquito-Gcbict ausdruckliclz
aufgegeben(Art.1,Alin 2),dle Souuerinital rler Republlk Nicaragua ubcrdas ganzc innerlialb ihrcr Grenzen
gelegene GehietderMo~qulto-Indiancruntcr den im Vertrag specificirten Bedingungen und Verpfllch~ungen
anerkannt(ArtI,Alln I), zugleichaber dcn Mosqultn-lndiancrnell1genau abgegrenztes'I'erritoriumzugewiesen
und vorbehalte(Art.11,VIII), lnnerhalb des~elSICdas Rccht dcr Selbsr-regien~ng(ccself-government,,)zu
geniessenhaben(Art.III)."
"In theTreatyof Managwa,Englunriexpressly rellnqu~~hcditsprotectorate ovcr thcMosquit(Art1.Line
2). recognizedthe SO~ereigntyof the RepoflNicamguaoverthe entireregion of thc Mosquito Indlanslyinz
w~thlnits bordcrs, subjcct to conditions and oblspecifieIn the Trraly (An I. Ll11,butatthe sarne
time assignt-dann-scnzctu thc Mosquito Itid~atrsa specificallydeleiritor(Art11.VIII), within whicb
they aretenjoythe nghtof self-governmen1(Art III)." (Translationprovidcdby Cost) Kica (c)Agreemerats between Great Britainandthe United States
2.19 The rivalry between the United States of America and Great Britain
concerningcontrol of the isthmus and an interoceanic canalwas addressed by
the Clayton-Bulwer Treatyon 19April 1850,which stipulatedthe neutrality of
all inter-oceanic communications through the Central American isthmus,
clearly referring to the passage to be opened via the San Juan. The Treaty
acknowledged that the issue ofauthority over theSanJuan remained unsettled:
articles IV and VIprovided that both States would endeavourto convince any
State having or claiming jurisdiction or rights over the territories where the
canal might pass to facilitate the construction of the canal.25
(d) Co~rfEictsarisingfrom the interventionof the filibusters
2.20 By 1854,the state of Nicaragua had been undergoinginternal conflict
for several years, prompting one of the Nicaraguan factions to sign an
agreement to secure the support of American mercenaries, known as
"filibusters" and ledby William Walker.26 After a few months in Nicaragua,
Walker quickly made known his intentions to conquer the entire Central
American region and to establish slavery there. Soon he controlled most of
Nicaragua including the newly openedtransit route, seizing all the ships and
property of the Cornpailia Accesoria del Trdnsito, owned by Cornelius
Vanderbiltand associates.
2.21 Costa Rica, aRer a campaign against the filibusters, first in the north-
western region of Costa Rica and at the town of Rivas in Nicaragua, and then
by campaigning in the region of the San Juan (assisted by other Central
During this period,
American countries) managedto overpower the invader.
Costa Rica was active in the region of the San Juan and at the end of the
conflict was leftin possession of all the steamers previously owned by the
Compaiiia Accesoria del Trbnsito.27
25 Clayton-Bulwerreat: nnexes,Yo12,Ann4x
Ih Agcncral accounlOFthe fillbustersis found InCH Brown,AgentsUr.rfi(UniversityNorth
CarnllnaPress,ChapelHill.1980)
On 22 December 1856,the CKlcanarmyarrivedat Trlnldinthe mouthof the SarapiquiRlver,and
capturedthefillbustercampItalsocapturedIsteamersanchoredInSanJdel NortWiththesethe
ForSanCarIos.SeDiFolkman,LaRurdeN~caragua(3rd edn,ManaguaImprelibros2,001),158-9;JSi~nz
CarboneM,storiD~plomal~cdCosia Rlcn (1821-1(1scdn, SanJosB,EdituJuricent1996)2U9.(3) The conclusion of the Treaty of Limits 1858
2.22. After the filibusters had been defeated and Nicaragua had returned to
normality, negotiations betwee the two countriesto settle outstanding bilateral
matters, including the issue of the San Juan, resumed.
2.23. On 6 July 185728and 8 December 1857,2Y agreements were signed
dealing with the matter of limits and the issue of the San Juan. The Treaty
signed on 6 July 1857 was not ratified by Costa Rica. The Treaty of 8
December 1857 was not ratified by either Costa Rica or Nicaragua.
2.24. However through the mediation of the Salvadorian Minister of Foreign
Affairs, Pedro Romulo Negrete, the Governments ofCosta Rica and Nicaragua
reached agreement on 15 April 1858 on a Treaty of Limits, otherwise referred
to as the Cafias-Jerez Treaty.
2.25 The Treaty of Limits established Nicaragua's dominion and sovereign
jurisdiction over thewaters of theSanJuan, but at the same time asserted Costa
Rica's navigational rights on the lower course ofthe river. Accordingly, article
Vl of the 1858 Treaty stated:
The Republic of Nicaragua shall have exclusively the dominion and sovereign
jurisdiction over the waters of the San Juan river from its origin the Lake to its
mouth inthe Atlantic;but theRepublicof CostaRica shallhave the perpetualtight of
free navigationon thesaidwaters, betweenthe said mouth and the point,threeEnglish
milesdistantfromCastilloViejo,saidnavigation beingforthe purposes of commerce
eitherwith Nicaraguaor withthe interiorof CostaRica,throughthe SanCarlos river,
the Sarapiqui,or any other way proceedingfrom theportionof the bank of the San
Juan river, which is hereby declared to belong to Costa Rica. The vessels of both
countriesshallhavethe power to land indiscriminatelyoneither sidof the riveatthe
portionthercofwherethe navigationiscommon; andnochargesof anykind,orduties,
shallbe collectedunlesswhen Eeviedby mutual consentof both Governments."
28 Costa Kica-Nicaragua,Treaty oLlmits(Cafias-Suirez), Managua, 6 July 1857 (unratified).
www rnanfuto~cronologia/t-canajuorczhtml:An2,Anncx5l
'' Costa Rlca-Nicara. oriventif Peace (Cslias-Martinez), Rlvas,8 Decernber1854 (10ts 8, 9 subject
ratlficat;emaindInforceon s~gnat,9 BFSP 1222.AnnexVn2,Annex62.26. The Treaty of Limits was ratified by Costa Rica on 16 April1858and
byNicaragua on 26April 1858.30Onthat same day the ratification instruments
were exchanged by the two Presidents in the city of Rivas,Nicaragua.
2.27. Besides establishing Costa Rica's navigational rights, the 1858Treaty
of Limits established otherrights and obligations for both parties:
the Bay of SanJuan del Norte, on the Carribean, and the Bay of
(a)
Salinas, on the Pacific, are common to both Republics (article
IV>;
(b) both Republics have a common obligation to contribute to the
defenceofthe bays of SanJuan delNorteand Salinas(articleIV);
Costa Rica has an obligation to contribute to the custody of the
(c)
San Juan (article IV);
(d) both Republics have an obligation to contribute, with all the
eficiency within their reach, to the defence of the San Juan in
case of external aggression (articleIV);
Nicaragua has an obligation not to bind itself to canalization or
(e)
transit contracts "without first hearing the opinion of the
Government of Costa Rica as to the disadvantages which the
transaction might occasion the two countries...if the transaction
does not injurethe natural rights ofCosta Rica,the vote asked for
shall be only advisory" (article VIII). In other words, if the
canalization ortransit contracts injure CostaRica'snahral rights,
itsopinion is compulsory; and
(f) both Costa Rica and Ni~araguahave an obligation not to commit
acts of hostility against each other, whether in the port of San
Juan del Norte on the River or on Lake Nicaragua, even in the
event of war between them (article1x1.
(4) Nicaragua's challenge to the Treaty af Limits and the Cleveland
Award 1888
2.28 By 1 860, the navigability of the Bay of San Juan del Norte and the San
Juan itself had deteriorated, due to large amounts of sediments that were
effectively closingthe mouth of theBay. This made Costa Rica'sagreement to
j0 Thc Trcatwas ~nfactwice rat~fiedby N~camgua:by decrccof PrcsidMarhnet,Presidentof the
LrmrisbcnveenCosKicfin~tdNiumog(Washlngtu, C.:GibsonBros, 18871,53-4(hcrcaftcrPerezZeledbn,
A~aimertrandbythcConstituentAssemblyoftheRepublicof NiGucrrurleMcuruguuNo. 15,28 May
1858,citmdPi-ruZcledbnArgunier55. See also Decreeof thcCons~ilszcmbly iitIxgislative
Characte,pprovingtheTreaofLlrnstsof E5Ap1858,June1858reproducein The CmoJrheRep~tbllc
ofN;carngua(Washington,D.C.,Glbst~nBms. 1888),AppendixC,40 Annexes.Vo202Anricxany canalization contract even more irnportant.31 In the years after the signing
of the Treatyof Limits there were many projectsand agreements for canal and
transit projects along the San Juan. Although nonewould actually materialize,
it is noteworthy that Nicaragua involved Costa Rica in these projects.32
2.29. For example theAyon-Chevalier Canal Contract33was signed in Paris
on 6 October 1868. The contract required the accession of Costa Rica,34 but
soon after it was concluded it became apparent thatthe French party did not
have the means to carry out the project and the Costa Rican Government
withdrew itssupport.
2.30. From 1870Nicaragua beganto challengethe validityofthe 1858Treaty
of Limits. Itdid sodespite mare than a decade of observance of the Treaty by
both countries.35
2.31. On 16 March 1886,by Decrees XXXI and XXX11,36 the Costa Rican
Government created a Revenue Guard for the Colorado River, which would
have at its service a national steamboat. The functionsof the Colorado River
Revenue Service included "[tlo reconnoitre at least oncea week the Rivers San
Juan, Colorado, Sarapiqui and San Carlos; the first in the whole extent that it
is navigable for CostaRica,the second in its entire extent, and the latter two
along the entire stretches that are navigable by steamer." The Colorado
Revenue Guard had the main missionto "prevent contrabandin the waters and
territories of its circumscription."
31 As menlimed above(paragra2.03)thc Colorado Rivcr has always bccn cntircly Costa Rican tcrrltory.
32 See, eg.Canalization ContractFelixBellymf1May 1858 Annexes, Vm2,Annex 8
33 See RepublicofNicaragua-M. Chevalier,Contract fur the Excavanilnterocean~cCanal across Central
America (Ayon-Cheval~er),d October 1868,Articles 53-56,especially Article 55whictherefusal.dthat
of CostRica tadhere tu present lrealy w~llmake the treaty null61nBFSP 1266.Annexes, Vo2,
Ann~x11.
34 See Cos~aRica-Nicaragua,Treaty Ibr ~hcexcavaanoIntcroccanic Canal (JimCncz-Montenlegre),SnnJosC,
18June 1869,61 BFSP 1144:Anncxcs, Vol2, Annex 13 (by which Costa Rica accedcd to the Ayon-Chcvalicr
Contract).
35 Scc Rcrnnrks adeby thc:Govcrnmcnaof Costa Kica to the Government of Nicaragua when the latter submitted
to thc Nicaraguan Congres"dotibts"regard to the validity uf the Trzaty of Limits: Costa R~caForeign
M~~zlstr,orenzo Montufar,to NicarabwanForelgr MTomiseAybn, 1February 1870,reproduced in Pkrez
ZclcdarA~un~~.nr,74-8Anncxes, Vol3,Annex 30.
3h CostaRica, Decree No XXXIestabl~shinga rnmtlme and customsguthemouthoftheColoradoR~ver16
Match 1886.Urduccidrrrk L>isposiciotrcsLeyiddmit?istmiivasernitidosaiio 188Ed~cidnOJciof
(SinJose lmprenta Nnc~onal,18XRnncxcs,Vol6,A~zncx205,DecrceNo XXXll Fixingthe:functions of thc
MaritimandCustoms Guard onthColorado R~verhIMarch KX6,Colrrcidn rleDi.~pmicionecLegislriirvci.
Adminisrrutrvosent~t~daesn e1886.EdicidriUfic~San Josi lmprenta National, 1K87)Annexes, Vot5,
h~incx206 2.32. The decision of Costa Rica to establish a permanent Revenue Guard in
the San Juan area met with opposition from the Nicaraguan authorities.
Togetherwith the dispute about the validity of the Treaty of Limits which had
already been raised by Nicaragua, this situation inducedboth Parties to agree
-, to arbitrate their differences. On 24 November 1886 a treaty was signed by
Ascensi6nEsquivel onbehalfof CostaRica and Josi Antonio Rom6non behalf
ofNicaragua.37Bythe Esquivel-RornBnTreatyboth countries agreedto submit
the question of the validity of the Treaty of Limits to the arbitration of the
President of the United States. Article VI of the Esquivel-Romkn Treaty
stipulated that if the Award found the Treaty of Limits valid, it should also
decide whether Costa Rica could navigate the San Juan River with vessels of
war or of the Revenue Guard. In addition, the Award would decide any other
point of doubtful interpretationraised by either of the Parties. ArticleX of the
Esquivel-Romin Treaty stipulated that if the Arbitral Award found the Treaty
of Limits valid, both countries would appoint commissionersto demarcate the
boundary, as established inArticle I1 of the Treaty of Limits.
2.33. Following the exchange of ratifications of the Esquivel-Romin Treaty
on 1 June 1887, the President of the United States of America, Grover
Cleveland, accepted the duties of Arbitrator. Thereafter Costa Rica and
Nicaragua attempted to settle the dispute without the need for arbitration, but
were unable to reach a settlement.38
2.34. On 22 June 1887, Nicaragua submitted to Costa Rica 11 points it
considered as of doubtful interpretation. Of particular interest is Point 8,
asking whether Costa Ricawas entitled to navigate the waters of the San Juan
with vessels of war or of the Revenue Guard. In its reply before President
Cleveland, Nicaragua argued that Costa Rica could do neither:
37 CvstaRica-Nicaragua,Conventionto submitto theauftheGovernmentafthc:UnitcdStatesthequest1011
in regardto tlc validity af tofApnl 151858(Esquivei-Roman), Guatema24December 1886, 168
CTS 371: Annexes.\2.Annex14.
3K On 26 Jul1887the PresidentsorCoRicaandNicaraguasigncdo Treaty (knownas the Sotu-CarazoTreaty)
inan attemp1tn resolve thedisputeand avoidthe Arbitrationar11ide la SccretariK~1uciune.s
Extenorm yCurteraAnexas1888(San JosC:lrnprentaNaclonal, 1888):Annexes,Vol215.Nlcsragua
thereby undertookto withdraw its objethevalidity of the Treatyof Limits;oeventthat both
legislatures ftolapprove~would thc arbrlration before I'residentClevelanThcCosla Rican
Congressapprovedthe treISeptcmbcr 1887but theNlcardguimCon~eessrejectedJSaeni!Carbonell,
Hrrfor~oDiplornLideCosrtRica (IBIO-IP4(nd ednSanJost: EditorialJuric2000)466-7"Vesselsof the revenue serviceare akin tovessels of war. While theyhave not all the
means of aggressionas the former, still theyare armed vessels, capable of enforcing
their demandsby force, and mustbe classedin the same categoryas vessels of war.
Ncitherhave the right, undera commercial license, to invade the territory,domain,or
sovereigntyof the Republic ofNicaragua."Jg
2.35. Costa Rica argued that it was beyond dispute that Costa Rica could
navigate the SanJuan with RevenueGuard vessels:
"Itwas stipulated inthe treaty, to thebenefit of Nicaragua, that Nicaraguanvessels
could bring their cargoesto the CostaRican bank of the riverand unload them there;
and this permission,or right, presupposes,necessarily, the correlative rightof Costa
Rica to watch its own banks by the only practicablemeans,which is the revenue
police, duringthe wholecourse of the river navigablefor Costa Rica.
If thisonly means of vigilance wouldnot be permitted, the Costa Rican commerce
would be deprived ofprotection and at the mercy of srnuggling."4Q
Inrespectofmen-of-war,Costa Rica argued that the principlethat a port of free
entry is considered accessible to men-of-war of all nations ought to apply to
navigable rivers.41
2.36. On 22 March 1888,President Clevelandrenderedhis Award.42 The first
article of the Awarddeclared the Treaty of Limits valid. The second articleof
the Awardstated as follows:
"Second. TheRepublicofCosta Ricaundersaid Treaty andthe stipulations contained
in the sixth article thereof, hasnot the right of navigation of the river SanJuan with
vessels of war; but she may navigate said river with such vessels of the Revenue
Service as may be related to and connected withher enjoyment of the 'purposesof
commerce'accordedto her in said article, or as may be necessary to the protectionof
said enjoyment."
2.37. The third article of the Awardreferred to each of the 11 points of
doubtful interpretation presented by Nicaragua, Points 10 and 11 of the third
article state:
39 Replynj the RrpuhiofNi~rrrug10rite Cme othe Htpubltr oj. Costa Ricn SuloHISExceliencv
Honouruble Gm~vrrClevelund Prttriof the UflrSrure(WashingtonD.C: GibsonBros, 1887) 49:
Annexes,Vol6, Annex208.
40 POrezZeledbn,Argument, I56
41 Ibld.
42 Award uponthe valldofthcTreaty of Lim~rsof 1858behveenCRlcaandNicaragua22 March1888:
Annexes, Vo2,Annex16."10. The Republic of Nicaragua remains bound notto make any grants for canal
purposes across her territory without firstasking the opinionof the RepublicCosta
Rica, as provided in article VIIIof the Treatyof Limitsof th51hday of April,1858.
The natural rightsof 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 recognizedas belonging exclusively to her; the rights
which she possesses in the harbors of SanJuan del Norte and Salinas Bay; and the
rightswhich she possesses in so much of the river San Juanas lies more than three
English miles below Castillo Viejo, measuring ffom the exterior fortifications of the
said castle asthe 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 belongingtothe Republicof Costa Rica is occupied or flooded; where there
is an encroachment upon eitherof the said harbors injuriousto 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 sairiver orany of its branches at anypoint
where Costa Rica inentitled to navigate the same.
11. The Treaty of Limits of the 15thday of April, 1858, does not give to the
Republic of Costa Rica the rightto be a party ta grants which Nicaragua may make
for inter-oceanic canals; though incases where the construction of the canal will
involve an injury to 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 thher consent is necessary,and that she
may thereupon demand compensation for the concessionsshe is askedto make;but
sheis not entitledas a right to shainthe profits thatthe Republic of Nicaragumay
reservefor herself as a compensation for such favoursand privileges as she, in her
Nm, mayconcede."
2.38. Pursuant to articleVTIof the Esquivel-Roman Treaty,both countries
agreed to accept the Award unconditionally.43 At no stage did Nicaragua
challenge the validity of the Award.
Implementation of the Treatyof Limits after 1888: the Alexander
(5)
Awards
2.39 In accordance with article X of the Esquivel-Roman Treaty, both
countries appointed commissioners to demarcate the boundary line and the
Commission startedwork on 16June 1890. However,duetothe differencesas
to how best to approach the demarcation, it was agreed that both countries
should resort to the assistance of an external arbitrator who could resolve any
disputeswhich arose inthe field during the process.
43 Esqu~vel-RomanConvent~a,nVII.Annexes,VAnncx 142.40. Accordingly, on 27 March 1896 a Treaty was signed by Leonidas
Pacheco, on behalf of Costa Rica, and Manuel C. Matus, on behalf of
Nicaragua, to carry out the demarcation process.44 According to article I1of
the Pacheco-Matus Convention, in the event of disagreement between the
Costa Rican and Nicaraguan commissioners, an engineer appointed by the
Presidentofthe United Stateswould decide on the matter,and thedemarcation
-
process would be carried out in accordance with his decision.
2.41. The Pacheco-Matus Convention havingbeen ratified by both countries
and entered into force, United States President McKinley appointed as
arbitrator an engineer, Edward Porter Alexander. The demarcation process
began in 1897and was concluded in 1900. In all, Alexander rendered five
awards addressing the conflicts that had arisen between Costa Rica and
Nicaragua during the demarcationprocess.45 For the most part,the Alexander
Awardsare not relevant to the present dispute: however,the First Awardof 30
September 1897may be noted. This fixed the Atlantic terminus of the land
boundary at Punta Castilla,where the right or south-east bankof the River met
the sea. In so doingtheArbitratornoted 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."46
The 1916 Judgment of the CentralAmerican Courtof Justice
(6)
2.42. With the construction of the Panama Canal, the pressure for an inter-
oceanic waterwayin Nicaragua abated. Nonetheless as a result of information
that Germanywas interested to open a Canal in Nicaragua, the United States
sought to safeguard its security interests by concluding in February 1913 the
Charnorrc+Weitzel Treaty.47 Costa Rica protested this Treaty, first to the
44 Pacheco-MatuConvent~unFur the demarcatof thc bolrndalyline betweenCosta Kicaand Nicaragua,27
March 1896, PrrpeRelorirtfurltr,fireign llelarionsUnitedState(WashingtonD C Government
PrintlngOffic18971,101Annexes,Vol 2, Annex 17
45 FirstAwardrenderedby turnplreEPAlexanderS,arrJuandcl Norte,30 September1897;SecondAward,San
JualdelNorte,20 December1847ThirdAward,SanJuan dcNonc,22 March 1898;FourthAward,Greytown,
26 July 1899;Fifth Award, Greytown,10 March19ForrhetexlsoftheAlcxandcrAwardssce.Poskrfsre
Internoilonale, 52Thc FirstAwar1sreprintinAnnexes,Vol2,Annex 18.
46 Pus,c~i.Inrernnounrrle5,31.
47 United States-Nicar,onvent~onfotheConstructinf a CanalbtheRiverSanJuan(Chamom-Weizel),
Wajhingnn,D.C., February.191RcpublrcofCosta Rlca, ComplaintheftheCentraAmericanCwurrof
Jurtrce(Wash~ngto. C. Pressof GlbsonBros, Inc. 19lli)Annex L,82-86 Anne2,Annex 19United States,"g and then to Nicaragua,49 on the ground inte rlia that ithad not
been consulted. In the event the United States Senaterejected it.50
2.43. Then, on 5 August 1914, Nicaragua signed a treaty with the United
States (the Chamorro-Bryan Convention) which granted the United States
perpetual ownership rights for the construction and maintenance of an inter-
oceanic canal through the San Juan.51 This Treaty was signed without Costa
Rica'sknowledge or consent. Sincethe Chamorro-Bryan Treaty affected Costa
Rica" rights under the Treaty of Limits and the Cleveland Award, on 24 March
1916 Costa Rica filed a case against Nicaragua before the Central American
Court of Justice.52
2.44. In Costa Rica'sargument before the Court its navigational rights were
clearly set forth in the following terms:
"The CaHas-JerezTreaty,explainedby the ClevelandAward,concedesto CostaRica
theperpetualrighttofree navigation in thewatersofthe San Juan Riverfrom itsoutlet
in the Atlantic up to a point within three English miles of Castillo Viejo, for the
purposesof commerce,whetherwith Nicaragua orthe interiorof Costahca, through
any of the waterways of thatcountry thatflow or may flow into the San Juan; it also
gives to Costa Rican vessels the right,exempt from impostsof any class, to touch at
points on theNicaraguabanks of that riveralong the part thereof inwhich navigation
is common,and puts Costa Rican vessels of the revenue serviceon the same footing
with the merchant vessels of the same country (Costa Rica) in order that they may
protect its rights ofor the saidpurposesof commerce.
That, with regard to the San Juan River,thcconventionalrights of Costabca are, in
a certain aspect, less than the corresponding rights of co-ownership (condominio):
4g Costa Kican M~nistcrPlenipoleninWashington, D.C., JE Calvo, to the United States Secretary of State,
LVillramJennings Bryan, 17April 1913:Annexcs,Vol3,Annex 38
49 CostRican Mlnister in N~caragua,F Cahe~acGhrnez,to N~caraguanForeignMinistCharnurr27
Aprll 193 AnnexesVol3,Annex 39.
50 The Treatywas prcscntcd to the Senate Foregn Relations CJune1913 ThePlatAmendment was
introducedllowing a suggeslion by the Nicaraguan Govinthe hope that it might facilitate Senate
approval The Treaty encountered oppositionnot anly from Costa R~caand El Salvador bthealso from
Democrabwho consideredthe Pamend men^Foster~mpenalisticpractbythc United States. InAugust
193 it was rejecbythc Foreign Relaliuns CommitteF.Rodrlgucz ScrraEl,CanalporNicaragua
(Managua,EditoriAlemana, 1968)24, LFSibaja Chacbn, NLimiietun Nicaragua (Sw Jost, Litografia
51 DonBoscn, 1973) 212.
United States-Nicaragua, Conventionfor the construction the RivSan Juan {Bryan-Chamarroj,
Washington,D ,5August 1914,220CTS215:Annexes. VolAnnex 20.
52 The CentralAlnericanCourJusticwascreatedbythe GeneralTreaty of PcaAmity, WashingtD.C.,
(Costa R~cGuatemalaHonduras,Nicaragand El SaivadoWashington,D.C20Dece~nbct1907,206CTS
63Costa Rica, for example,cannot plythat stream with war vessels as, of course,
Nicaragua can do;but, on the other hand, thoserights are greater thanthose of a mere
co-owner (copropietario)because the Costa Rican vessels,as well merchantmen as
revenue cutters, in the ione in which navigationis common,have a free course over
the whole river, throughout its length and breadth, and free access, exempt from
imposts,to anypoint on the Nicaraguanshore."53
2.45. Costa Rica based its positionon articles V1 and V1 II of the 1 858 Treaty
of Limits, and on the 1888 Cleveland Award. Nicaragua responded to Costa
Rica's demand on 25 August 1916 but confined its challenge to thejurisdiction
of the Court.
2.46. On 30 November 1916, the Central American Court of Justice gave
judgment in favour of CostaRica. In doing so it held that:
"...Costa Ricapossessesinthe SanJuan River, forpurposes of commerce,permanent
rights of free navigation from its outletas far up as three miles below CastilloViejo,
and the right for her vesselsto moor at all pointsalong either bank, exempt from the
impositionof any charges,in that partof the stream in which navigationis common.
It is clear, therefore, that the ownership which the Republic of Nicaragua exercises in
the San Juan Riveris neither absolute or unlimited; it is necessarily restrictedby the
rights of free navigation, and their attendant rights, so clearly adjudicatedto Costa
Rica - the more so if it is considered that such rights, exercised for revenue and
defensive purposes, are, according to the opinion of statesmen,usually confounded in
their development withthe sovereign powers of the imperium s;ch a concession is
equivalent to a real right af use, perpetual and unalterable, that establishes the
Republic of Costa hca in the fullenjoyment of practicaiownership of a large part of
the San Juan River without prejudice to the full ownership reserved to Nicaragua as
sovercigmover the territory.
By virtue of the decisionscontained in the Cleveland Award, and whatis held therein
relating to the territorialboundaries, the following points are evident:
53 Annexes,Vol2Annex 21,196-7The original Spantext reads.
"El Tralado Caiias-Jerezexpltcadopor cl Lsudo Clcvcland,conccdc a Costa Rica elderecllo perpehio de libre
navegacione!asaguas dclrio SJuandesdesu desembocaduraen elAtlintico hastatres millas inglesasante
dcl CastllloV~ejo,para finescomerclales,yNicaraguocon el IntendeCnsta Rica,por cualqu~erade
lasviade esta que dan o den al riu Sandaa las naves coslarricensesla fdcuatncar, excntas dc
impuestosdeualquierclase,en b rtbera nlcaraguensedel mismnrio, enquc la navcgaclones comhn,
y cqulparalasembarcacionescostarricensesdelservlfunlasmercantesdelmlsmopais,para quepucdan
protegelodcrcchosdc Cstn,o para las expresadosfines comerciales
Que en cuantoriuFanJuan iosderechos convcnclonalcsde CRicason en cierto aspectomenoresque los
camspondientea1condornlnlo Costa Rlno puedepor ejemplo, surcar cstn corricntc con naves dc gucrm,
colno puedc hacerln Nicaragua, deseguroporotraparlesonmayores que 10sde una mera copmpledad
porque losbarcoscostarricenses,asimerccornofiscaleslazonaen cluela navegxdescomhn,tienen
llbrecurso entodo el lalargy a loanchoy librcacceso,excntode impuestos,aculugarde lar~bera
nlcaraglense."... The proposition that the rightsof navigation on the San JuanRiver that were
confirmed in CostaRicado not extend to vessels ofwar,butsimplyto vessels devoted
to revenue and defensive purposes - an interpretation that inno way detracts from the
doctrine set forthconcerning the practical ownershippertaining in great part to Costa
Rica over the San Juanfiver because navigation with vessels of war, aside from
constituting a cause for disquiet, would implya function appropriate to territorial
so~ereignty."~~
2.47. The Court went onto state that:
"Costa Ricapossesses undisputed title tothe rightbank of the river,to the land situated
within herjurisdictional limits;she has joint ownership in the ports of San Juan del
Norte and in Salinas Bay; she possesses the contractual rightof perpetualnavigation
inthe river,beginning at a point three miles belowCastilloViejo, accompanied by the
full privilege of transit andcommerce, and Nicaragua is impressed with theduty not
to interfere with navigation, but,on thecontrary, to keep the course of the river open;
Costa Rica enjoys also the right to moor her vessels on both banks throughout the
entire zone in which navigation is common, and the rightsinvolved in guarding and
defense 'withall means withinher reach'."55
2.48. The Court necessarilyhad to pronounce on Costa Rica'srights on the
San Juan, since these were affected by the Bryan-Chamorro Convention. In
particular the CentralAmerican Court declared that:
"...theGovemn~nt of Nicaraguahas violated, to the injury of Costa hca, the rights
granted to the latter by the Caiias-Jerez Treaty of Limits of [April 15, 68581,by the
ClevelandAward of [March 22, 18881, and by the Central American Treatyof Peace
and Amity of [December20, 19071 ."56
2.49. As aresultof thisjudgment (andthejudgment renderedby the Court in
a parallelcase presented by El SalvadoragainstNicaragua about its own rights
on the Gulf of Fonseca57), Nicaragua terminated its participation in the Court.
54 Ihid,219-220
55 Ibid,222 ThcoriginalSpantexreads:
"Casta Rica tiene derecho~ndiscutidoa Is margcn dcrechalsuelo culucado dentro de sus li~nitcs
junsdicc~onales;posee el condominio.enlo?puertosde SanJuan del Norte y en la Bahiadc Salinss, el derechn
contractual dc perpetuanavcgacionen el no, emgezandodesdetres millas abaja dcl CastllloV~ejo,comprensivo
de la ampliafacultadde transi~nyde oyqueimpone a Nicaraguael deberno entrabaresa navegacion,y
el de:tcner,elcontrano, expeditoel curso del rio, los dc atracaren sus dos nheraquelaorla la zonaen
navegacibn es camun, y 10sque conciernen a su guarday defensa 'con toda la eficacia que estuviere a su
nlcanc"'
5h Ibid, 229.
57 RepuhliuofE1 SalvadvRepublrcof NicaragCa,ntrAmencan Court of Justice, LlMarch 1917,(1917) 11
AJIL674Its doing so, however, could not affect the statusof decisions already given as
resjudicutu .58 \
(7) Later developments
2.50. Inthe late 193Os,there was renewed interest betweenCosta Rica and
Nicaragua in the canalization of the San Juan. The Governments of both
countries favoured the constructionof a Canalterminating at Lake Nicaragua,
since there was no intentionto connect itto the Pacific Ocean. Theresult was
the Treaty known as the Zuiiiga Montufar-Cordero Reyes ~reat~,59signed on
5 April 1940 and duly ratified by both countries. But (as with previous
agreements for acanal byway ofLakeNicaragua), the canal workswerenever
seriously begun. The Treaty expired fiveyears aRer itssignature in accordance
witb its own terms: see articleX. Article 111 of the Treaty acknowledged Costa
Rica'srights of free navigation and in fact extended its rights to the whole of
the San Juan from its source in Lake Nicaragua to its outlet on the Caribbean.
2.51. In December 1948, the faction which had lost the civil war in Costa
Rica earlier that year attempted to invade the country, having the support of
Nicaragua under Anastasio Somoza'sregime. The Government of Costa Rica
requested assistance from the Inter-American system with respect to these
events, invoking the Inter-American Reciprocal Assistance Treaty (the Rio
Treaty). As a means of settling the issue, both countries signed the Pact of
Amity of 21February 1~49.~~ Through this Pact they committedto solve any
difference among themselves through peaceful meansof settling international
disputes. To achieve this goal, they accepted the application of the Inter
American Treaty for the Peaceful Settlementof Disputes (the Pact of Bogota],
even though that Treaty had not yet entered into force.
48 A ChamberoftheCourtpaidcarefulattention totheElSalvadorjadgment in~ts1992decisiononthe
Inlervenin1.C.Kcports1992p. 31in particular600-1 (paras.402-3).e (ElSalvads.icaraguaaN
j9 Costa Kica-NicaraC,onventiontheCanalizationoftheSanJuan River(Cordero-, anJost, 5April
Iuun y mrmsprirficulreiacio~tadoscon dicha canalizacidn (San Jase: Irnpr1940), 15-22:
AnnexesVol2.Annex22,
Ii0CostaRica-Nicaragua,Pactof Amity(Sevllla-Esquivel),D.C.i,1 Febmry 1949(in force 15July
1949),1465UNTS 221Annexes,Vol2, Annex23.2.52. In 1955,the faction which had lostthe 1948 CostaRicancivilwar made
a further attempt, with the aid of the same Nicaraguan Government, to take
over the Government of Costa Rica, The conflict was resolved through the
intervention of the Organization of American States. On 9 January 1956 the
two StatesconcludedanAgreementpursuanttoArticleIV ofthe Pact ofAmity
of 21 February 1949." Among other things, they agreedto facilitate and
expedite transit throughthe San Juan and promised to cooperate to safeguard
the common border.
61 CostaKlca-N~caraA,grecmcnpursuatoArtlclc IV ofPactoArnlt(Fournier-SevWashington,
D.C.,9Januar1956,1465UNTS 233,23Annexes,Vol 2,Annex24 Chapter 3
TheDispute before the Court
A. Overview
3.01. Prior to 1980,apartfrom sporadic and occasional incidents, CostaRica
did not encounter dificulties in exercising its rights of free and perpetual
navigationon the SanJuan River. Theperiod from 1980to 1998records some
Nicaraguan breaches of CostaRica'srights, but inthis period these were nof
a systematic orpermanent character.
3.02. By contrast in the period after July 1948,Nicaragua adopted a policy
which involved systematic and permanent violations of Costa Rica's rights,
which continueto the present day andwhich effectively amount to an outright
denial of these rights.
3.03. Despite repeated attempts by Costa Rica to seek a diplomatic solution
to the dispute, no settlement has been reached. As a last resort, on 29
September2005,Costa Rica presented its case to this Court.
B. Nicaragua'sviolations of CostaRica'srightsbetween 1980and 1998
3.04. Nicaragua's violations of Costa Rica's rights of free and perpetual
navigation in the period between 1980 and 1998 were of an ad hoc and
temporary character.
3.05. An example is a shooting incident involving a Costa Rican official
vessel in 1980. On 4 November 1980 the vessel, which was transporting
Costa Rican Ministry of Health officials on the River, was shot at by the
Nicaraguan Army.62 Costa Rica protested this action on 5 November 1980
and Nicaragua responded on 12 November 1980. Inits response,Nicaragua
62 "SandlnlguaratiaCostRicans",LaNo~ianJose,6 Novemher1980.Annex5, Annex911apologisedforthe incidentandstatedthatit didnotreflect theoEcial position
of the Nicaraguan Government. Nicaragua pledged full respect for Costa
Rica'srightsof fiee navigation.63However,earliertheNicaraguanauthorities
declaredthat Costa Ricaoughtto give noticetoNicaraguaeachtimeit entered
theRiver,inordertopreventCostaRicanvesselsbeingconfusedwith irregular
groups operatingin the area.64Costa Rica rejected theconditionproposedby
Nicaragua and reaffirmed its rights of fkeeand perpetual navigation on the
River.65
3.06. Further incidents occurred in 1982 and 1983. On 6 June 1982 a
NicaraguanArmyPatrol intercepteda CostaRicanvesseltransportingtourists
onthe SanJuanRiverfiomBarradelColorado, Costa Rica,to PuertoViejo de
Sarapiqui,alsoin CostaRica. The Patrolrequiredthe passengersto disembark
fiom the vessel and proceeded to question them, noting their details in a
register. The Patrol thenindicatedthat itwas forbiddento transporttouristsin
Costa Rican vessels through the San Juan, particularly NorthAmerican and
Europeantourists.66 This violation was duly protestedby the CostaRican
ForeignMinistryon 8 June 1982.67Nicaraguadidnot respond.
3.07. On 13, 20 and 27 June 1982 Costa Rican vessels transporting
passengersthroughthe SanJuanwereagain stopped.Passengersofthevessels
weresearchedand requiredto produce identification.68
3.08. On 4 July 1982,NicaraguanArmy officers demandedpayment for a
"departure clearance" ("derechode zarpe"). This action was protested by
CostaRica on 16July 1982.69Nicaragua didnot respond.
63 NicaraguanAmbassadorin CostaRica, Javier ChamorroMora, to CostaRicanForeignMinister,Bemd Niehaus
Quesada, Note NoE.N.13231 180November 1980: Annexes, Vol 3, Annex 40; ''Nicaraguaconditions
navigationonthe waters of the SanJuan River",LaNacidn,SanJose,8 November 1980:Annexes,Vol5, Annex
111.
64 Ibid.
65 Ibid.
66 Managerof SwissTravelServices,EGamboa,toCosta RicMister ofPublicSecurity,AngelEdmundo
Solano,7June 198AnnexesVol6,Annex223.SeealsoWew protesttoNicaragua",LaNacidJose11
June1982AnnexesVol5,Annex 113.
67 CostaRicanForeignMinister,FernandoVoNicaraguaCbargd'Mairesa.io CostRicaOscarRamcin
Tkllez,NotNoD. .M.133-8 Jne81982:Annexes,Vol3,Ann41.
68 ManagerofSwisTraveServices,EmiliaGamboa,toCostaRicanDeputyForeign M,lchartPeters,5July
1982:Annexes,Vol6, An224.
69 CostaRicanForeignMinister,FernandoVolioJimenez,toNicaraguanCharged'maires a.i. to CostaRica,Oscar
RamdnTkllez,Note No.D.M. 126-82,16July 1982:Annexes,V913,Annex42.3.09. From 16to 22July 1982,the NicaraguanAmy prohibitedCostaRican
vessels.fromnavigatingthe SanJuan. CostaRicaprotested thisaction.70
3.10. Nicaraguarespondedon 2 August 1982that the actions carriedout by
the Nicaraguan Anny were sovereignacts undertakenin orderto preservethe
security andinternalorderofNicaragua. It was further statedthatthe actions ..
taken by local Nicaraguanauthorities which restrictedCosta Rica's rights
establishedintheTreatyofLimitswouldceaseandthat the perpetratorswould
be punished.71On 19August 1982CostaRicarespondedto Nicaragua'sletter
of 2August 1982,rejectingNicaragua'sinterpretationofitsauthoritytoimpose
restrictionson Costa Rican navigation.72 On 6 September 1982Nicaragua
responded, affirmingthe position takenin its letterof 2Augustwithrespectto
its prerogative to impose restrictions on Costa Rica's rights of free
3.11. On 23 February 1983, membersof the NicaraguanArmy stoppedtwo
Costa Rican journalists navigating the San Juan. These journalists were
searched andtheir belongings were seized, includingnotebooks, film and
recording tape. Costa Ricaprotestedthis actionon 8 March 1983.74
3.12. In addition to the restrictions imposed on navigation with tourists,
Nicaragua committedotherviolationsof CostaRica'srightsto fiee navigation
in this period. Amongthe most importantwere theimpositionof timetables,
whereby Costa Ricanvesselscould onlynavigatebetween 6 amand5pm;the
obligationto stop atArmy posts and allowpersonal searchesas well as the
seizureof personal belongings, andthe impositionof a chargefor navigation
onthe San Juan. Nicaragua argued that it was onlyexercisingrevenue control
activities and applyingsecurity controls, referring to the movement of the
70 CostaRicanForeignMinister,FernandoVolio,to NicaraguanCharged'maires to CostaRica,O'carRamdn
Ttllez,NotNo. D .27.82,20July 1982:A~exes, Vol3, 43.ex
71 NicaraguanCharg$Makes a.io CostRicaOscarRam61T1kllez,to CRicanForeignMinistFernando
VolioJimCneN,otNoE . .789/82,August1982:Annexes,Vol3,Annex44.
72 CostaRicanForeigMinister,FernandoVolio,toNicaraguanChargk$a.ito CostaRica,OscarRamdn
TCllezNoteNoD. .M189-82,19August1982:~~exes, Vol3,An45.
73 AmbassadorofNicaraguinCostRicaRogelioRamirezMercado,to CostaRiForeigMinister,Fernando
VolioJiminez,NoNo ..N. 865/82,6 September1982:Annexes,Vol3, Annex46.
74 Costa Rican Foreign MistFernando Volio JimCnez,to NicaraguanAmbassador to Costa Rica, Rogelio
RamirezMercado,Note No. D.014-83 ,8arch 1983:Annexes,Vol3, Annex47."Contras", contra-revolutionarygroups operating in the region. The then
DeputyMinister of Foreign Affairs ofNicaraguaindicated thatthe vigilance
exercised was necessary to prevent enemy individuals to the Nicaraguan
GovernmententeringNicaraguaas part ofa touristgr0~p.75He indicated that
the measurestaken by Nicaragua in respect of Costa Rican navigationwith
touristswerenot intendedtorestrainCosta Rica'srights offiee navigationbut
weretakento safeguardthe security of Nicaragua.76Similardeclarationsfrom
Nicaraguan officials followed, arguing that Nicaragua could impose
restrictions and had the right to stop and detain any person deemed by
Nicaraguato be a dangerto the State. Costa Rica,on the otherhand,protested
and insistedupon its rights of free nairigationin accordance with the relevant
instruments.77
3.13. On4April 1983delegationsfromCostaRicaandNicaragua metin San
Juandel Sur,Nicaragua,to discussthesedisagreements. Thismeeting did not
result in any agreement.78Another high level meetingtook placeon 14April
1983 in Liberia, CostaRica. At that meetingyNicaragua acknowledged that
therehad beenviolations of Costa Rica'srights. La Nacibnreported that:
"Dr.SergioRamirezMercado, memberofNicaragua'sNational ReconstructionJunta,
announcedyesterday [inLiberia],in a meeting with delegatesfiom our Government
[CostaRican],that his countrywill respect gradually theright of free navigationof
CostaRican vessels inthe SanJuanRiver.
The official addedthat within a non-specified term, theywould totally obey the
provisionsoftheCa5a.s-Jerez treatyandtheClevelandAward,whichallowCostaRica
the fiee navigationon thatwaterway."79
3.14. Soon after the bilateral meeting of 14 April 1983, Costa Rican
navigationon the SanJuanreturned tonormal. But as aresultofthe increased
75 "NicaraguansannouncecontrolonthJuan"LaNacidn,SanJos417June1982hexes, Vol5,wex 115.
76 bid.
77 "FreepassagealongtSanJuanRiverisdemanded",LaNacidn,JosC16June1982hexes, Vol5Annex
114 .eealso"Pmblemon the SanJuaRivecontinue",LaNacidn,SJosC,4 July 19Annexes,Vol5,
Annex1 16.
78 "Todaywilltakplaca highlevelmeetiwitNicaragua",LaNacidn,SJosC4 April 198AnnexesVol
5,hex 119Seealso"MeetingwithNicaraguansfailed",LaRepriblica,5April 198AnnexesVol
5.Annex 120.
79 "Ramirezoffers gradual respect to navigationon the San Juan.River",La Nacibn, San JosB,15 April 1983:
Annexes,Vol5, Annex 122. Seealso "Nicaraguaguaranteesfreedomonthe SanJuanRiver", anRep~iblicaS
Jos&15April 1983:hnexes, Vol5, Annex 121.securitythreat causedby theNicaraguan civilwar,therewas in factlittleCosta
Ricannavigationonthe Riverfiom 1984until the end ofthe conflict-in 1989.80
Theviolenceandthe effects of the civilwar in Nicaragua made mostriparians
leave the region. Even the Costa Rican police temporarily suspended
navigationon the San Juan during that period due to the increased security
risks.81
3.15. Aftertheendofthe Nicaraguan civilwar in 1989, CostaRican riparians
graduallyreturnedto the region.
3.16. In February 1994, the Nicaraguan Army began charging passengers
travellingon CostaRican vessels a fee of US$5 to navigatethe San Juan.82 In
March 1994Nicaragua announcedthat it would impose unilateral migration
controls on the San Juan to Costa Rican tourism, in addition to a charge of
US$5.00 for a tourism card.83 The Nicaraguan Ambassador to Costa Rica
declaredat that time:
"I obviouslyrespecttheinterpretation madeby ForeignAffairs.MinisterNiehaus,but
mycountry makesa sovereigninterpretationof the Caiias-JerezTreaty,sincewhenit
was signed tourism did notexist; and commerce was foreseen as anexchange of
merchandise."84
Thisnew charge,imposedby force,was appliedto all passengersnavigating
the River.85
Affidavit ofhandPerlaPerez,28January2006:Annexes,Vol4,Annex92;andAffidavitofWindelHodgson
Hodgson,28January2006:Annexes,Vol4, hmex 93.
Affidavitof Carlos LuisAlvaradoSinchez,27January2006:Annexes,Vol4,Annex 88; andAffidavit of Daniel
SotoMontero,27January2006:Annexes,Vol4,Annex89.
82 "_5 to navigateon the San JuanRiver"LaNacidn,SanJos15,10March 1994:Annexes,Vol5, Annex 126. As
reportedbytheCostaRicannewspraNacidn,theNicaraguanhyimposedthepaymentofthisfeebyforce,
and evenopenedfireupon Costa Ricanviorderto enforcepayment
83 Nicaraguan Foreign Min,rnestoLeal,to CostaRican ForeignMinister, BerndNiehausQuesada,NoteNo.
940284,21March1994:Annexes,Vol3,Annex48.
84 Vol5,Annex123.heNicaraguansduetotourismonthe SanJuan",LaR, anJose,5 March1994:Annexes,
85 "Ticosweremachine-gunnedattheSanJuanRiver",LaNacih, SanJosi, 8 March 1994:Annexes,Vol5,Annex
124.3.17. Costa Rica protested this action on 15 March 1994.86 Nicaragua's
response was communicatedon 21 March 1994.87 In this communication,
Nicaraguaformulatedfor thefirsttime an interpretationof CostaRica's rights
of freenavigation. It arguedthatthephraseccpurposeo sf commerce"in article
VI of the Treaty of Limits should be interpreted in a restrictive way.
Nicaragua'snote of 21 March 1994stated:
"...the[Caiias-JerezT]reatyestablishesthattheRepublicofCosta Rica "shallhat vee
perpetuar lightsof fkeenavigation inthesaidwaters.. .conobjetosdecomercio" and
not forothertypeof activities.Thereforet ,heexpression intheTreaty 'koizobjetos
de comercioe "x,cludesany otheractivjty,andthe termsof the Treatyshouldbe
interpretedinthestandard sense theyhadatthetimeand,being itaTreatyof Limits,
it shouldbeinterpreted ina restrictivway."88
Additionally,Nicaraguaarguedthatthechargeforthetouristcardwasnot atoll
but a ccmeasure of migrationcontrol".89
3.18. On22March1994theNicaraguanGovernmentstoppedcharging Costa
Ricannationalsforthetouristcard,althoughthecharge remainedinrespectof
other foreign nationalson Costa Rican vessels.90 Costa Rica continued to
reject thecharge in its modifiedversion.91
3.19. Asaresultoftheimpositionofthe charge,allCosta Rican vessels were
obligedto stop at the Nicaraguan Army posts. There were severalincidents
where CostaRican vesselsthat did not stop were shotat. For example,on 6
March 1994 a Nicaraguan Army officer withan AK-47 shot at three Costa
Rican boats.92CostaRicaprotestedthis actionandrequestedthat Costa Rica's
86 This noteis referrinthenotfromNicaraguan Foren ister, Ernesto Leal, to Cosanreign
Ministe, ernNiehausQuesad, oteNo. 940284,21 March1994:hexVol3, hex48, whichrecords
CostaRica'sobjection.
87 NicaraguaForeign Minir,rnestoLeal,to Costa Rican nister, BerndNiehausQues, oteNo.
940284,21March1994:hexes,Vol3,hex 48.
88 Ibid.
89 mid.
"ForeigMinistewillanalyzethe transiotnthe SanJu, aNacibn,SanJosi, 13April1994:Annexes,
Vol5,hex 129.
91 'Wiehausulesoutarbitrat",aNacibn,San Josi,20April1994:Annexes,Vol130.ex
92 124.osweremachine-gundtthe SanJuanRiv, aNacibn,SanJos8,8March1994:Annexes,Vol5, Annexrights to free and perpetual navigation on the San Juan be respected.93
Although Nicaragua responded thatthe tourism cardwould be charged onlyto
foreigners from third countriesw and not to Costa Ricans, the charges
continued intermittently.
3.20. Anew CostaRicanadministration was inaugurated on 8May 1994and
continued to pursue a settlement of the dispute. As an outcome of high level
contacts, on 5 June 1994, the Ministers of Tourism of Costa Rica and
Nicaragua signedtwoAgreements ofUnderstanding. Oneof these was general
in scope; the otherdealt specificallywith tourism activity onthe SanJuan.95By
theAgreement of Understanding onthe TouristActivity in the Border Zone of
the San Juan River, both Ministers agreedto developjoint sustainable tourism
in the San Juan area, withthe aim of establishinga zone of freetransit between
the two countries and of promoting mutual investment and coordinated
development. Though this Agreement, it was recognizedthat both countries
could establish controls on their own vessels carrying out tourist activities.
~nforhrnatel~neither of these Agreements was implemented.
C. Nicaragua" violations from 1998to the present
3.2 1. Until July 1998Costa Rica enjoyed free navigation of official vessels
and oficial personnel carrying their service arms on the San Juan. The
prohibition by Nicaragua of Costa Rica's free navigation by officialpersonnel
and oficial vessels in July 1998 was unilateral and in breach of Costa Rica's
rights, as further particularised in Chapter 4.
3.22. Nicaragua did not communicate its decision to prohibit navigation by
official Costa Rican vessels and personnel carrying their service arms through
regular channels. On 14July 1998 a NicaraguanArmy officer came to Costa
43 "CostRlcademandsN~canguansto wlthdrawchargeon thc SanJuan",La Rtytihlica, Sanlost, k7March 1994:
Annexes,Vol5,Annex 128.
94 NicaraguanForelgnMinister,EmestoLeal, to Costa Rlcan Forcign Minister,BcrndNichaus Quesada,Note No.
940284,21 March 1994:Annexes,VAnnex48
95 Agreementof Undershnd~ngbetwthe Ministof TourismtheRcpubllcof Costa Rica andthe Republic
of Nicaragua, Uarra del Colorado. Costa R~ca,Annexes,Vol2,Anncn25; and Agrcrccmcnotf
Understand~bctwcenthMinistriesof Tourismof the ucfCosta Xicaand theRepublicvfNicaragua
on the tounst acInthe bordzoneofthe SaJuan Rive5June 1994,Barra del Colorado, Cosre Rica:
Annexes, Vol2, Annex26.Rican territory and informed Costa Ricanpolice officials that from that dayon
they would require express permissionto navigate the San Juan carrying their
servicearms -96
3.23. After the Nicaraguan decision was made known to Costa Rica, the
Government of Costa Rica initiated a number of high level contacts with the
Nicaraguan authorities through the Ministry of Public Security. As a result,
Costa Rica announcedthat the Nicaraguanauthorities had liftedthe restrictions
imposed on Costa Rican navigation, in consequence of what was perceived to
be an understanding reached on 16 July 1998.97 Despite this announcement,
the restrictions continued. On 30 July 1998, the Nicaraguan Minister of
Defence,Mr Jaime Cuadra and the Costa Rican Ministerof Public Security,Mr
Juan Rafael Lizano concluded an agreement, known as the Cuadra-Lizano
Joint Communiquk. It provided for navigation of Costa Rican police vessels
carrying servicearms, and that Costa Ricawouldgive noticeto the Nicaraguan
authorities who could accompany the CostaRican police vessels if they chose
to. It was acknowledged that Casta Rican police vessels could navigate the
River even if the Nicaraguan authorities failed to accompany thern.98 On 11
96 In areporby the Costa RicanAtlantic Policc Command, the notificationof N~caprohibitiowas rccarded
EnIhe followinway
"By July 14 of1498,ar the15 10hours, First Lieutenant ~lvaro Rios Cirdena~ came to the Delta Costa Kica
Policc Postnamed Delta No 7 Mr Rios identified himseasthe Chlcf af the NicaragArmy Post located at
theNicaragua delta in frunt uf the Costa Rican Post and hc presented h~mselfto Inspector William Hcrrcra-
Chavez, who was the Ch~efof the Costa KicanAtlantic Command Pollce mdithe informed him vcrbslly that
thereasonofh~sv~s~wtasto informhim ofthcInstructionsgivetohim by Colonel LieutcnantOrlandoTalavera,
Chiefof thc South Detachmentof the NicaragArmy, and that the passagc,through the XanJuan1sbanned
aa ofthat time and date for any Costa Rican nuth"riSee Intendent Cornnlander in scwlcc of the Atlantic
Commdnd.Semp~yui,Danlel Soto Montero,to Costa Rlcan Foreign Ministry, 14February2006 Annexes, V6,
Anncx 240. This incidenwas also recorded by the prcss: "Nicas are unbending with Police", La Ssnw6n,
Jose, 23 July 1998 Annexes, V5,Annex 136
97 "Prohibition lrfiedLn Nnc~d~,San Jost, 17July 1998 Anncxcs, Vol5,Annex134 In this press articlc, the
Nicaraguan Defence Ministerwas quatcd as saying that "everything will be normalihad been occurring
far many years" Furthermore, it was reponcd that: "a s~milaropiwrus~ssuedyesterday by N~caraguan
Conznzandcr-in-ChleT, enerat Ioaquin Cuadrtl,according to AFP. who thatthe incident 'is nothing more
than a misundcrstandlng regarding the maInwhich mllitary vcssels must translt on the rlver."'
98 Cuadra-LizanoJoint Communiqui., 30 July1998:Annexes, Vol2.Anncx 28. Durlng the pressconference which
followcdthc slgning of the Communlqut, the Nicaraguan Minister of Defence stated that "Costa Ricahas always
tmvclled on thenver and theyare not being denied thc ri~htto travel an it anclno one is taking away the fact that
the nverbelongs to Nicaragua", thercby scknowledg~ngCosta R~a's continuous cxcrcise11snav~gatiollal
nghts. "Border agrccincnt with Nlcas", Lo Nuc~dn,San Jost, 3I July 1998:Annexes, Vol 5, Annex 141. Thc
President of Nicaragexplained thcontents of the Joint CommuniquPasIbllows "this is neither an agrccmcni
nor anythlng that has an obligatory sense, it is anly a communique that serves as a guidclinc between two
ne~ghbour~ngcountriethat face a misunderstanding""Agreement criticized:new pmctlccs can be dangeruus",
La Prensa.Managua, 1 August 1998:Anncxcs. Vo5,Annex 144. Evidentlythc Nlcaragusn understandingat the
time was not that Costa Ricanpolice had m~suscdCosta Rnavigationar~ghtsby carrying thelr service arms
whllst transiting the Pan Juan,but rather that the whole issue was dueto a misunderstandingbetween N~caraguan
milltory nuthoritlcs and Costa Rican pollce authorltics which the Jolnt Communiqut was lntcnded to solve.August 1898, just a few days after the Nicaraguan President had publicly
defended the agreement,gg Nicaragua declared that it considered the Cuadra-
Lizano Joint Communiqukto be null and void.100 Costa Rica did not accept
this unilateraldeclaration. 101 The dispute in respect of police navigation with
serviceweapons remained unresolved.
3.24. After the situationwith the navigationof officialpersonnel and official
vessels deteriorated, Nicaragua accelerated the imposition of restrictions and
chargeson Costa Rican navigation. By 2001, Nicaragua had imposed a so-
called "departure clearance certificate" ("derecho de zarpe") of US$25,
chargedonly on Costa Rican vesselsnavigating the SanJuan River. It had also
re-established a US$5 charge for a tourism card and an immigration tax of
US$4 for Costa Ricans. Further,Nicaragua required that aH Costa Rican
vessels stop at every Nicaraguan Amy post along the River for inspection,
permissionto proceedand the payment of those charges. 102
3.25. FOPa period Nicaragua also imposed an obligation to use the
Nicaraguan flag, a measure that was re-imposed in October 2005 in response
to Costa Rica instituting these proceedings before the International Court of
Justice. 103
99 '-Nicaraguforfe~tedLnPrensu,Managua,31July1998:Anncxcs,Vol5,Aivlcx142. Thc NicaraguanPresident
ISquoted as saying thai he "...justified ttlc ncw positbynN~caraguabecause they recognized our
sovereignly 1bclicvothat what wc have d1sto place stairs so that tge:out of the:storm, which, in
many caseswasthe med~a'ssinrm WEhaven'tyicldcd at any tune,mustyconsult andnot~fyus to navigatc
in suchway."
loo ActtngNicaraguanFnre~gMinister.CarloCiurdiin Uebnyle, to CKicanForeignMinister. RuberRajas,
Nute No VM/08/0685/9 1l,August1498:Anncxcs,Vol3,Anrlcx49.
-
lol CostaRlcanForeignM~nlsleRoberto Rojas,ActingNicaraguanForclgnMlnistcr,CarlR.Gurdiin Debaylc,
NotcNo DM- 047-98,12August 1998.AnnexesVol3,Annex 50
lo2 Costa Rican Deputy Fnrelgn Mlnlswr,ElayncWhytc,to Nicaraguan Foreign Minister,Francisco XavierAgume
Sacasa,NoteNo DVM-II1-01,18April2001 Annexes,Vol3.Annex 70;CostaRicanFore~g~M~ini~ter,Roberto
Rajas to NtcaraguanForeignMinister,FmnciscuXavierAguime,NoleDM-207-2001,9 May ZOO1 Annexes,
Vol3,Annex 71;Affidavof Nolary Serge GerardoUgaldc Godlncz.5 Ma2001:Anncxcs, Vo4,Annex 83.
Io3 UosL?Rican Foreign Mlnlster, RobTwar Faja. to N~caraguanFore~gnMlnlstcr. Nonnsn Caldcra Cardcnal,
NoteNo DM-484-05, O20tober2005:Annexes,Vol3,Anrlcx 81; MrJorgc LaoJnrquinand Mr SantosArricta
Flarcsto Costa Kicanf;ore~gnMinisterTovsr,22Nuvembcr2005.Annexes,Vol5,Annex 238, MunlclpalMayor
of SanCarlos,CosRica,LlcAlfredoCbrdobaSoroto Directorof ForeignPolicy,Costa RicanFameinistry,
LICJust IoaquinChaverrSeeversNote No AM-1315-2005. 18Ocrobcr 2005 Anncxes, Vol6, Annex 223;
"Nicaragua conditions passingof Costa RicilnvessNucldnSan Jose, 1October2004 Annexcf,Vol 5,
Anncx 185; "Costa Rlcan vessels will bear the N~caraguanFlag", La Prensa. Managua, 17 October 2095
Annexes, Vo5,Annex 186;"Nicsrag~iademands aKsa andPacsport othe River"La NucidnS,anJo~e,30
October 2005 Annexes,Vo5,Anncx 189."CostaRicanForesgnAffalrsMilzlsterseeksd~alregardinv~sas
and flags", El NuevoDluno, ManaguNovember 2005 Anncxcs.Vol5,Annex 1903.26. Additionally, in response to Costa Rica instituting these proceedings
before the Court, since October 2005 Nicaragua imposed an obligation on all
Costa Ricans to obtain a visa in order to enter Nicaraguan territory and made
this a requirement for navigating the San Juan.lm Thus Costa Ricans are
required to obtain and carry a passport bearing a Nicaraguan visa in' order to
use the San Juan, even when transiting from one part of Costa Rican territory
to another.
3.27. Nicaragua also re-imposed.timetables for navigation on the San Juan.
Costa Rican vessels are not allowed to navigate between 5 pm and 6 arn.105
3.28 Additionally,Nicaraguan authorities have bannedCostaRicanresidents
of the Costa Rican bank area from fishing for subsistence purposes on the
River. This ban is being enforced by measures including detention of those
fishing or carrying fish and the seizure of their belongings including their
boats, a measure which effectively also denies their right to navigate on the
River. 106
3.29 More recently Nicaragua has declared, through its Foreign Minister,
that navigation by local Costa Rican residents was allowed by Nicaragua as a
courtesy but not as of right.107 In Nicaragua's view, navigation for
communication purposes, such as going to school, health centres, shoppingor
simple communication between towns and peoples, was not for purposes of
commerce: such activities might be permitted as a courtesy but could be
prohibited at any time.108
NicaragurequireCostaKicanscntcringN~ctriguanterritorytoobtain aulsaDecreeNa.70-200512
October2005,amendlngDecreeNu. 57-2005,31Augu2(105Pnor to 12October200CostaR~cansdid not
requlrca viloenieNlcara~anterritoly.
lo5SeeAffidavito5May2001 Annexes,Vol4, Anncx 83.
Iod SeeAfidavit of LeonelMarales Chacbn,6 July2006:ArVol 4,Annex 106;Affidavitof Enck Malkol
MartinezLopez,6July2006:Annexes,Vol4,Annex 107;AftidaviiofVictorJulioVargasHcrnanrlez6, Jiily2006:
Annexes,Vol4,Annex 105AFfidaviof JosefaAlvarczAragon,6 July 2006:Annexes,Vol4,Annex 109, and
Affidavitof JoseMorenoRojas,6 July2006:Annexes,VoI4,A108.x
Io7Nlcamguan ForeigMinistcr,Norman CalderaCardetoCostaRlcanFureignMinistcr,RobeTuvarFaja,
NoteNO, MKE/L)M-JI/1284/11/O5,9November2005:Anncxcs,Vol3,Annex82.
loglbid D. Attempts by Costa Rica to resolve the dispute
3.30. Costa Rica has proposed diplomatic solutions to Nicaragua on many
occasions, including the use of available mechanisms of peaceful resolution,
such as mediation throughthe Organization ofAmerican States,by other Latin
American States, the European Union or Spain, and international arbitration.
The Government ofNicaragua has rejected all these proposals.
3.3 1. In respect of the dispute concerning navigation of the River by Costa
Rican police, on 30 July 1998 the Cuadsa-Lizano Joint Communique was
signed. However, as noted above, on 11August 1998 the Minister of Foreign
Affairs of Nicaragua communicatedto the Minister of ForeignAffairsof Costa
Rica that Nicaragua rejected the Cuadra-Lizano Joint Communiquk and its
contents.109Costa Rica did not accept this unilateral declarationandby note of
12August 1998, it affirmed its intent to search for a diplomatic solution.l~o
Nicaragua responded on28August 1998,but made no concrete suggestion,nor
did it propose another meeting.' I
On 8 October 1998the Deputy Ministers of Foreign Affairs of Costa
3.32,
Rica and Nicaragua met in El Salvador. CostaRica proposed mediation of the
European Union to resolve the dispute, a proposal immediately rejected by
Nicaragua. 112
3.33. On 11May 1 999the Costa Rican Deputy Foreign Minister sent a note
and a draR proposal to his Nicaraguan counterpart, requesting that formal
log Actlng NicaraguanForcMinisterCarlosK.Gurdiin DcbaylloCostaRicanForeignMinisteRobertRoyas
Lbpez, Nole No. VM/U8/0685/98August1998 Anncxcs,Vol3,Annex48.
' Costa Rican FurergnMtntsrcr,Robcrto Lbpez,to NicaraguForcignMinlsterbI.a\v,CarlR Gurdiin
Debayle,Nole No DM-047-48,12August 1998.Annexes,V3,Anrzcx50. Istates:
" In regard to thc comment mayourleltcr rcfcrringto your IllustriousGuvemment'cwitoworkess
basedon the internationaldocumentshat dctcrnllrleNicaragua'sCo5taR~ca'rights on the San Juan
RiverIshould llke to reiteratethat Costa Rlca hasnever intendedto exerciseany rightsothcr than those granted
by said instrumeand,In thls respect, it rcltcrates its read~nessto maintain thc chonncls of negotiat~onthat
shouldalways exist between sister natluns upen, insofar as Nicawllllng anprepared to appoint
appropriateauthor~zedpcrsons to cany out negollInvlcw of the above, 1would I~kelo request Your
Excellencyto ~ndicatethe steps which should Inorder that thc gaodwill expresyourletter may
rcsult inappropriatresnluiionto thlsdispute."
N~caraguaAclrngForcign Mlnlster, Cailvs RobertoGurdlin, to Costa Rican Fure~gnMmlster, Robcrto Rajas,
NoteNo MRU98102638, 28 Allgus1958:Annexes:Vol3,Anncx 51.
l2 "Trcosrequested EuropeanrnedlatLtr TrtbrmManagua,9 October 1498.Annexes,V5,Annex 153.negotiations recommence. 113 Although Nicaragua acknowledgedreceipt of the
note,ll4 it did not respond to Costa Rica's proposal, nor did it make any
counter-proposal.
3.34. The Deputy Ministers of Foreign Affairs of both countries met in
August 1999 in Miami, and in December 1999 in San Josk, but again no
agreement was reached.115
3.35. In the eontext of a maritime delimitation negotiation between Costa
Rica and Nicaragua, it was proposed that the issue of the San Juan River
dispute be discussed onceagain.116In ameetingbetweenthe Deputy Ministers
of Foreign Affairs of both countries, held in Managua on 16February 2000 a
draft proposal was accepted.117This proposal was discussed by the Ministers
ofForeignAffairs ofbothcountries when theymet onthe occasion of the Ninth
EU-Rio Group Summitwhich took place on 24 February 1900 in Portugal.118
Both Ministers indicated their approval,but the Nicaraguan Minister requested
more time to examine the draft agreement. A few days later Nicaragua sent a
drastically modifiedversion of the draft agreement previouslyapproved by the
Deputy Ministers. A Costa Rican counter-proposal, more consistent with the
draft which had been originally acceptedbythe Deputy Ministers,wasrejected
in its entirety by Nicaragua.
3.36. In this context, on 3 March 2000 the Government of Costa Rica
requested the assistanceof the Organization ofAmerican States (OAS) to find
Il3 CostaRicanDeputy I'orclgMlnirterWalterNichaustv NicaraguanDcputyForeignMinisterGu~llermo
Argiiello Poessy,Note No. 607-99,l I May 1999:Annexes,Vol 3,Ann54.
NicaraguanDeputyForeign ~inister, Guillemo Arg"cllo Cosh RlcanDcpuiyFurelgMinistcrWalter
NiehausNatcNo. MRE/B9101347,12May 1999:Annexcs, Vo3, Anne55.
SeeAfXdav~tof WalterNichausBonilla,23 February2005.Annexes,Vol4, Annex 104.
Costa RicFarelgnMinister,RobertoRojasLbpez,to Nica~aguanForeignMmnter,EduardoMontealcgrc,Note
No.DM 015-2000,21January2000 AnnexesVol3, Anne56;and theNicaraguanresponse NicaraguanForeign
Minister, EduardMontealegre,to Costa Rican Foreign Ministcr, Roberto Rojas LopcNote No.
MRE/DM/3882101/002,8 January2000 Anacxcs, Vol 3, Annex 57, Cosla Run Foreign Minisier, Rvberto
ROJ~Lbpez,toN~caraguanFure~gMinistcr,Eduardo Montealegre,Note No. DM-079-15February 2000:
Annexes,Vol3,Anncx 58,and the Nicaragunnresponse NicaraguanForeign Minister,EduardoMontealegre,to
CostaRicanForclgnM~nisier,RobertoRojasLhpez,Note MKEIDM1396510210106,Imcy000.AnnexesVol
3,Annex 59.
I7 Affidavit ofWalterNichBonjll23 Febn~ary2006Annexes,Vol4,Annex 104
l8 IXMinisterialSurnm~t,EuropeanUnionand Group of24February 2000,llamoura,Purtugal.a solution to the dispute.119 The Permanent Council of the OAS convened an
emergency meeting on 8 March 2000 where both countries were given the
opportunity to addssss the Council and express their respective positions.
Costa Rica's address to the Permanent Council gave an overview of
Nicaragua's actions and of the steps taken by Costa Rica to resolve the
differences, including the importance of resorting to the appropriate
mechanisms of the Inter-American system, in particular mediation and
arbitration. 120 The Nicaraguan Foreign Minister's speech focused on the
inapplicabilityof the Inter-American system in relation to the dispute.121With
the support of thePermanent Council it was agreed that the Secretary General
of the OAS would seek to facilitate negotiations between the two
govemments.122 Consequently, meetings took place in Washington, D.C.,
Managua and SanJose. At the last of those meetings, on 3 April 2000 in San
Jose, it was announcedthat, despite the goodofices and active involvementof
the OAS Secretary General, no agreement to resolve the dispute could be
reached and that the dispute remainedunresolved.123
3.37. The good ofices of the OAS having failed, the Costa Rican Foreign
Minister proposed recourse to mediation by letter of 10 April 2000.124 The
Nicaraguan Foreign Minister responded by letter on 6 May 2000, rejecting
Costa Rica'sproposal.125 Costa Ricareplied on22May 2000, emphasising that
there was a significant divergence of opinion between Costa Rica and
Nicaragua as to the substance of the dispute and its efforts to seek a
resolution. 126
l9 "Costa Rlca dcclnrcs bilateral dialogue exhausted, GovernmentrequebytheOAS",iPresrReleare.
Pms~]$~eoffheil.i~n~sr~ofI~brurgnAfla1vsM ofarc20a0XAcnnex3es,V5,Annex 156 SeeaI~o
Pcrmanent Representative of Costa Rica Organization Amencan Stateshmb Heman R.Casw, to
Presidentfthe I'ennanent Counofthe Organizatiof ArncrlcanSrarcs,Jamcs Schoficld Murphy, 3 March
2000.Anncxes. Vo3Annex 60
CoslnRlcan Forcign Ministcr Kobcrto Kojas Lbpez, Statement to the Permaofthe Ogani~ation of
Alertcan States, 8March2000,OEAIScrCPIACTA1224100: Annexes,Vol 6Annex 228.
l2] NicaraguaForcign Minister EduardoMontetllegm,StatemethePermanent Counclof thOrganlzntlonof
American States, 8March 2000,OFA/Scr G CP/AC1224100Annexes, Vo6,Amcx 229.
122 "OAS SecretarGcncral facilitates Keinitiating Dialogue betweenCosta Rlca anPumrRelease"rd
rheOqonizufiort ufArneurSraics. Wash~ngtUn..., March 2900.Annexes, Vol 5, Annex 15Ree also
"CostaRlca forccdtoacceptthe dominiNicaraguover the Sin ~uaLaNnir~laManagua.17Mmh 2000:
Annexes. Vol5, Annc159
lZ3 "Dialaguc regarding Riverat a dead eod," La,anJose,4Apnl 2000:Anncxcs,Vol5,Rnncx 161
124Costa RicanFure~gnM~n~st, obertRojaLopez,ta Nicaraguan IiorcignMinister, EduardoMontealegre, Note
No.DM- 125-2000,10Aprll 2000:Annexes, Vol3,Annex 61
125N~caraguanForeign Mlnisier, Eduardo Montcalcgrc, to Costa Klcan Foreign Minister, Roberto Rojas L"pez
Lbpez,Note No.MRE/DM/4366/04/006,May 2000 Annexes, Vnl3Annex 62.
12' CoulRican ForeignM~lnls, oberto RojasLbpezNicaraguan ForeiMln~ster,EdunrdoMontealcgrNoic
Nn DM-165-2000, 22 May 2000Amcxes, Vol3,Annex 63.3.38. Despite unsuccessful diplomatic efforts to resolve the dispute, the
Presidentof CostaRicacontinuedto attemptto reach aneffective solution with
his Nicaraguan counterpart. The two Presidentsmet in private on the occasion
of a multilateral meeting in Panama City on 17 June 2000,127when the
Nicaraguan Presidentrequestedaproposal.128Inview ofthat request the Costa
Rican President felt there was a chance finally to resolve the dispute.129
Subsequently, in a letter dated 28 June 2000, he proposed a compromise
formula which would have permitted navigation by Costa Rican police
carrying their service arms, who would give prior notice to the Nicaraguan
authorities.130 The President of Nicaragua responded on 29 June 2000,stating
that Nicaragua agreed to allow ". ..the Costa Rican police authorities to
navigate that part of the river, with the acquiescence,in each case, of the
Nicaraguan authoritiesfl.l31The President of Costa Ricarespondedon 29July
2000, setting out the dificulties encountered by the Costa Rican Minister of
Public Security with his Nicaraguan counterpart in attempts to re-establish a
modus operundi.132 Inhis reply of 3 August 2000, the President of Nicaragua
insisted that his proposed formula required the "acquiescence" of the
Nicaraguan authorities on each occasion.133
3.39. Consequently negotiations were stalled. Costa Rica communicated
with Nicaragua on each occasion when Nicaragua violated its rights of free
navigation;l34the Nicaraguan repliestended to assertits sovereigntyas taking
127 Presidenof CostaRicaMiguel AngelRodriguez Ech~cverrralthePres~dentoNicaragua, ArnoldAlernin
Lacayo, 28 June200:nnexcs,Vol3,Annex54.
128 "Nicaragua asks for a Costs proposal"La ~VawdnSan JorC18 June2000 Annexes,Vol5,Annex 163.
12' Anotherfollowup meetintookplacon 29June 2000inMexlco CityAsresulofthe vcrbalexchangebetween
the twPresidents,it wfelt tan agreemenhad been fitlarcnched. Howeverasthe correspondcncc of 29
June 2000and 29 July ZOO0demonstrateno agreementwas reached: see Pres~dentof Nicaragua, Arnaldo
Aleman Lacayu, to Presldent of Costa Rica, M~guelAngel Rodrigue2000 Annexes, Vol 3,Annex 65;
President CostaRica,MiguclAngel Radriguezto President of NicaraArnoldo Aleminbdcayo, 29 July
2000 Annexes,Vol3, Annex 66.
President of Costa Rica, MiguelAngel Rodriguez,to PofsNluaragua,Amolda Alcmin Lacayo, 28 June
2000A.nncxes,Vol3,Annex 64
13' Pres~dentof Nicaragua,Arnnldo Alernin LatoPresident of CostaRxa, M~gel Angel Rodriguez, 29June
2000:Anncxcs. Vo3.Annex 65.
13*Presldent of Costa Kica,MiguelAngel Rodriguez, to Presidcntof Nicaragua,Amoldo Alerni29 Julyo,
2000.Annexes, Vol3.Arinchh
133Prcslden~ofbilcaragua. ArnoldoAlernin LactoPres~dentof CosRlca.MiguelAngel Rodriguez, 3August
2000: AnnexesVol3. Annex67.
134 For examplc, CostsRlcan Deputy ForeMinisterElayne Whyte, to Nicaraguan ForcMlnlsieFrancisco
XavierAguim Sacasa.NoteNo. DW- I11-01,18April200I :Annexes,Vol3,Anncx 70. See alCostaRican
ForeignMinister, RobertoRojasLbpez,to Nicaraguan Foreign Minister,1:mncisAgulrre SacasNotc
No. DM-207-2001,9 May2001:Annexcs,,Vnl3,Annex71priority over Costa Rica's rights, or simply denied Costa Riea's rights
altogether. In a letter of 9 May 2001, Costa Rica proposed thatboth countries
jointly resort to international law to resolvethe dispute by way of mediation.135
On a visit to the SanJuan on 10May 2001, the President ofNicaragua rejected
any such possibility. He stated: "We have nothing to do in an international
organisation. Nothing, nothing."l36 Eventually, on 3 August 2001, the
Nicaraguan Foreign Minister responded to Costa Rica's letter of 9 May,l37
almost threemonthsafter its receipt. In this communication, it was statedthat
Nicaragua would persist in charging all vessels for "the departure clearance
service ("sewicio del derechode zarpe") that both Nicaraguan and foreign
vessels in any Nicaraguan port, including those located in the said river, are
charged when travelling to another State". There was no response to Costa
Rica's requestfor mediation nor did Nicaragua suggest any other diplomatic
means to resolve the dispute. On 26 September 2001, Costa Rica's Foreign
Minister responded, stating once again Costa Rica's willingnessto continue a
diplomatic effort. He stated: "...I trust that, despite the differences,we may
dialogue in greater depth in the search for adequate solutions."l3~
3.40. On 23 October 2001, the Government of Nicaragua presented a
reservation to its declarationof acceptance underarticle 36 of the Statuteof the
International Courtof Justice, intendedto avoidthejurisdiction of the Court in
cases based on the interpretation of treaties or awards concluded on or before
31December 1901 .I39
3.41. Nicaraguan elections took place in November 2001 and, a new
Government was inauguratedin January 2002. Costa Rica proposed that the
135 Costa Rioan Foreign Minis~er,RoberLhpez,loNicaraguaForelgn Minister, Franc~scoXavier Aguine
Sacasa,Note NDM-207-200 1,May 200 1Annexes,Vo3,Anncx 71.
13'"Nicarabwarejects arbitration",LaNocldn,,1Mayo2001. Annexes,Vol5,Annex 17As reported by
the press, on this occasionNicaraguaallCosta Rlcannavlgalronon the S3nJuan Rlver for about half
aday
137Nicara~uanForclgn MlnlFranciscXavierAgulmeSacasa,to Costa RicanForeign Minister, Roberto Rojas
LbpezNotcNo DREIDM-JU0818/05/01,3August2001: Annexes,Vol3,Annex 72.
'38Costa Kican ForeignMinister, Roberto RojasNicaraguaForelm Minister, Francisco XavierAgu~rre
Sacasa, Notc No DM 355- 2001,26 September2001:Annexes, Vol 3, Annex 73.
13YDeclarat~onRecogn~zasCompulsoryIheJurisdictofthe lntcrnatlonnlCourt of Justice, un36, Articlc
Parabmph2, of the Staofthe Coun,Nicaragua Reservalion, UN Reference C.N 1157.2001Tr5at~es-I,
Dcccmber2201 Annexes, Vol6, Annex231. This reservation was objectedto bon I8December
2001.UN Doc.A!56/770, I February2002:Annexes,Amex,232.Presidents of Costa Rica and Nicaragua meet, and they did so on 27 February
2002.140 The outcome was a recommendation to re-initiate dialogue between
the two countries. Thusthe Ministerof ForeignAffairs of Costa Rica proposed
in a letter of I1March2002 that the two governmentsjointly requestthe good
ofices of an impartial third party, recommending the mediation of H.M. the
King of Spain.141
3.42. In his response of 23 April 2002, theNicaraguan Foreign Minister did
not comment on Costa Rica's proposal; instead he expressed willingness to
hold discussions at the Ministerial level.142 On 2 May 2002, Costa Rican
Foreign Minister Rojas announced that he had recommended that President
Rodriguez file an application before the International Court of Justice, as the
only possible meansto resolve the dispute. In response, President Bolaiios of
Nicaragua requested PresidentRodrigueznot to act on this advicebut to allow
the newly elected President of Costa Rica, President Pacheco, the opportunity
to continue negotiations.143
3.43. Whenthe new Costa RicanGovernment took office in May2002, there
was a sense that a new start couldbe made, on this and other issues.144On 16
June 2002, the Presidents of Costa Rica and Nicaragua met in Managua in
order to discuss the possibility of a diplomatic solution to the dispute.145
Nicaragua demonstrateda renewed disposition to hold talks but nothing more.
3.44. Given the time constraints that the Nicaraguan resenration of 23
October 2001 could place on the Court'sjurisdiction and given Costa Rica's
desire tonegotiate without the pressureof a time limit,the CostaRican Foreign
Minister,by letter dated 5 August 2002,requested that Nicaragua withdraw the
reservation.146Nicaragua did not answer that letter. The Costa Rican Foreign
140"Bolafiosseesasolution abou5anJuan",Lo~Vncld,nnJust,28Februar2002Anncxes,Vol 5, Ann172.
141 CosraKicanForeigMinisteRobertoRojasLbpez,tNicaraguaForeignMlnlster,NormanCaldcraCardenal,
NotcNo.DM-030-2002, 1Milrch2002 AnnexesVol3,Anncx 74
142 NicaraguanForciMinister.armanCalderaCardenal,to CostaRicsn Fore~gnMinister, KolasLbpcz,
NoteNo.MKWDM-JI14XI/04/02,23Apnl 2002:Annexes,Vo3, Annex75
143"BalafiospreferstudealwithPachccoon thcSanJcase"LaPrensa,Managua,3 May 2002Annexes,Vol
5Annex 173.
I44 Anaccountof thirnpruverelationscbcsccn inNicaraguForeignMinister, Norman Caldera Caral,
Minl~terofGovernanceof Nicaragua,ArturoHarding,Note Nu.MRUDM-J11068070May 2002:Annexes,
Vol6, Annex233.
145"CostaRicdcfcnd~dialogue",A1Dra,SanJose, 17Iunc2092:Annexes,Vol5,An176
146CostaRicanForeign Ministe, obcnoTovarFap, to NlcaraguanForclgnM~n~N,oman Caldera,Note No
DM-202-2002,5August2002:AnnexesVol3,Annex79.Minister continued to propose alternatives to avoid proceedings before the
International Court of Justice. Eventually the Foreign Ministers signed an
Agreement, witnessedby the Presidents of both countries, agreeingto "freeze"
for three years the situation asto Nicaragua's acceptance of thejurisdiction of
the Court. The Tovar-CalderaAgreementof 26 September2002 was intended
to permit other areas of the bilateral agenda to be advanced, regardless of the
ongoing dispute relatingto the SanJuan.147
3.45. The Tovar-Caldera Agreement was an important step towards
improving bilateral relations. It underlinedthe acknowledgment, madeby the
PresidentofNicaragua, that his country"recognizes" the International Courtof
Justice, and kept openrecourse to the Court by suspendingthe entry into force
of Nicaragua's new reservation, while maintaining intact the respectivelegal
positions of the parties.148
3 -46. After the Tovar-Caldera Agreement was concluded, both countries
engaged on an ambitious bilateral and regional agenda. There were
negotiations on a maritime boundary agreement between Costa Rica and
Nicaragua,the signing of a he trade agreement between CentralAmericaand
the United Statesof America and the conclusion of a Cooperation Agreement
with the European Union. In addition, thePuebla-Panama Plan, an ambitious
border development plan, was signedby the two Foreign Ministers inFebruary
2005.149 This plan would allow foreign aid to be channelled into social and
environmental projectsin theunder-developed border region.
3.47. Subsequently the issueof CostaRica'srights of navigation on the San
Juan River was again discussed. The Foreign Ministers tookup the matter,and
in various meetings held in the months prior to the expiration of the Tovar-
CalderaAgreementtheytried to settle the disputebut were unsuccessful. In the
days leadingup to the expiryof the Tovar-CalderaAgreement, the Costa Rican
147Tovas-CaldeAgreement,Alquela,26 September2Annexes, o2,Annex 29.
148-'TheSanJuaFrozcn"Ln Prmsu,Managua27 Scptembc2002A:nnexcsVol5,Anncx 178
14'Trans-bordr evelopmentPlan,SanJuandelSur,N~car,7 Februa2005.Themainobjectiof thqsPlan
ISto contribto tpromotioandthe creationof product~vee,cnnom~cals,oc~aland~nstltutlonaolpportunities
intheborderregton. Withatot28projects,itatvconrriblo thstrengtheningof the CentralAmerican
integrationprocessAmbassadorto the OrganizationofAmerican States met a senioradviser to the
Nicaraguan ForeignMinister in order to propose alternatives fora settlement.
The Costa Rican Ambassador proposed to his Nicaraguan counterpart that a
peaceful settlement could be attained by recourse to mediation, arbitration or
resortto a Chamberof the Court. Nicaragua rejected all these proposals.~~Q
3.48. Thusitbecameclear that no diplomatic settlement waspossible. On 29
September 2005the Governmentof the Republicof Costa Ricaconcludedthat
ithad no alternative than to institute the present proceedings.
3.49. In a letterto the Nicaraguan Foreign Minister, dated 28 September
2005, the Costa Rican Foreign Minister summarised the position in the
following terms:
"With the actions resulting from theAgreementthat we signed on 26 September, 2002,
we Rave demonstrated through the mechanisms of dialogue and cooperation how
much can be achieved in benefit of our countries, both in the bilateral sphere as well
as in the process of the Central American integration. At that time we agreed to
promote the Central American Free Trade Treaty with the United Statesof America,
the Central AmericanAgreement ofAssociation with theEuropean Union, the Puebla-
Panama Plan and a Programme of border development to strengthen the economic and
socialconditions ofthe inhabitants ofan area that shoulalwaysbe oneof cooperation
and never one of confrontation. Today, as a result of an atmosphere of respect,
fraternityand mutual trust, wehave made those aspirationsa realityof opportunities,
that we must continue increasing. Notwithstanding, despite all the achievements
attained,it ialso true that, as the abovementioned Agreement expires, the only source
of discord between our nations still remains. The views our countries holin relation
to Costa Ricas' rightsof navigationon the San Juan River have still not been able to
be resolved by mutual understanding. Costa Rica acknowledges that the ownership
and sovereignty of the San Juan River belong to Nicaragua. But Costa Rica has the
right that her navigation on the San Juan River be fully respected, in accordance to
what is establishedin the pertinent legal instruments. Costa Rica does not seek more
rights, or less rights, than those grantedsaid instruments. Why not do away, once
and for all, with the only sourof discord between Costa Rica and Nicaragua? If our
views diverge and have not been able to be reconciled bilaterally, nor by mechanisms
of either mediationorarbitration, howcan we notacceptthat at least onof the parties
present the matter before the highest international judicial instance in order to
overcome, once and for all,our only cause of disagreement? Therefore, 1am fulfilling
my duty to inform you, and through you to the people of Nicaragua, thatCostaRica
has decided to present thecase before the International Court of Justicin order that
Affidavitof JavicrSBunlll8 Februat2006 Annexes, 4Annex 97itmay analyzethe points of view af our countries and establish the validity of each
one of them. To have recourse to the International Court of Justice could never
represent a rupture in the friendship between two nations. Both Costa Rica and
Nicaragua have accepted the Court as a means of assuring the peaceful coexistence
andmutual respect betweennations. The resolutionof thedifferencesshouldneverbe
left to irrationality, buto the means of peaceful solutionof controversies offeredby
international law. Forthisreason,CostaRicacannotacceptanythreat as a reprisal for
exercising this legitimate right. We approach the InternationalCourt of Justice with
the sincere intentionthat it's eventual decision will contributeto there never againbe
a motive for disagreement between CostaRica and Nicaragua. Isincerely hope that,
by this means, we may leave behind, for future generations, fraternal and friendly
relationsbetweenour countrieswithout any causes that may affect them. This is our
historicre~ponsibility."~ 1
j5' CoslaRicaForeign Minister.Robcrto Tvvar10NicaraguaFareignMlolsrer, NonnilnCalCardcnal,
Note No DM- 462-05, 2Septembe2r005AnnexesVol 3Anncx 80. Chapter 4
Costa Ricn's Navigationaland Related Rights
A. Introduction
4.01. The purpose of this Chapter is to present the navigational and related
rights of Costa Rica on the San Juan as they result from international law,
particularly the Treaty of Limits of 1858 (especially articles IV and VI), the
Cleveland Award of 1888, the judgment of the Central American Court of
Justice of 13 September 1916 and the 1956Agreementpursuant to Article IV
of the Pact of Arnity.152The following explanation of these navigational and
related rights only concerns rights which are at stake in the present
proceedings, It does not address other rights of Costa Rica under treaties in
force or any other rules of international law.
4.02. There isno dispute between the partiesas to the geographical scopeof
the rights of navigation recognizedto Costa Rica by the Treaty of Limits. This
is determined in article V1of the Treatyof Limits as being between the mouth
of the river in the Atlantic Ocean and the point located three English miles
distant from Castillo Viejo(see SketchMap 2 opposite page7 above). As to
this stretch of the San Juan, the rights of navigation of Costa Rica and
Nicaragua are describedby article VI as "common".
4.03. It is apparently not disputed, either, that the exercise of Costa Rica's
rights requires no prior authorization from Nicaragua. What Nicaragua
challenges is the scope of those rights, arguing that most of the navigational
uses relied on by Costa hca are not covered by the Treaty of Limits and the
Cleveland Award and that these are therefore--according to Nicaragua-
subject to its unilateral decision and regulation.153
152CostsRlca-NicaraguAgreement pursutrArticlIVoC thePact of Amity (Founuer-Sevllla), Washington,
D.C. ,January 195Annexes\In2,Annex24.
In hisstatement before the Permanent CoutheOrganlzatior~of American Srates of 8 March 2000,
Nicaraguan Minister of Fore~gnAiTa~rsEduardoMontcalcgredeclared: *'Aoynavigation undertaken by Custa
Kicainthewatersof the SanJuan thadoes not corresto thnavigatiexpresslycontemplatedin the
Jcrcz-CaiiasTreaty and the Cleveland Award in farce itheriver establishedin the international
Instrumentsurrentlyin cffcct should be expressly author~rxdbasthe cauntry possessing full
af the sald sovereignty, ~tdeems necessary to establish"(lranslatian by CostCPIACTA OEA1Ser.G
122410,3.Anncxcs,Vol6,Annex 229. SeealsoActingNicaraguanForeignMinister,CarlosGurdiin, to Costa
R~canForeignMinictcr,RobcrtoRojasLbpez,NoteNo.MRE/98/026August 199Anncxcs,Vol3,Armex
514.04. Article VT of the Treaty of Limits provides that Costa Rica holds
perpetual rights of free navigation on the San Juan. While granting free
navigation to Costa Rica, article Vl makes no distinction between official and
private vessels. Neither are Costa FCica'srights limited to "CostaRican
citizens" or "Costa Rican private boats". Article VI plainly confers rights on
Costa Rica as a State. These rights apply without distinctionto any vessel
sailing to or fromCosta Rica, and to passengers and goods on board any such
vessel.
4.05. The present chapterproceedsin seven sections:
Section B analyses the general scope of the right of navigation, in
particuIasits "perpetual" and "free" character. It showsthat
this right cannot be limited, restricted, conditioned or
interferedwith.
Section C addresses the meaning of the rights of navigation "for the
purposes of commerce" ("con objetos de comercio"), asset
out in article VI of the Treaty of Limits, and demonstrates
that this phrase includes freedom of navigation for
communication and tourism aswell as trade activities such
as transportof goods.
SectionD turns to the right of Costa Rica to navigate onthe lower part
ofthe River wherenavigation iscommon,in orderto protect
commerce and for reasons of revenue control, as set out in
the ClevelandAwardand the 1916Judgment of the Central
American Court of Justice.
SectionE refers to CostaRica's rights andobligations to safeguardthe
San Juan and to contribute to its defence, as well as the
common bayof San Juan delNorte, and their implications
for navigation,in accordance with articleIV of the Caiias-
Jerez Treaty,the 1916Judgment and the 1956Agreement.
Section Fexplainstheright ofnavigationforre-supplyofpersonneland
relief of border posts on the Costa Rican bankof the River,
which is a corollary of the foregoing rights and was
acknowledged by the Cuadra-Lizano Joint Conlmuniquk of
30 July 1998.
Section G isdevoted to other related rightsofCosta Rica with regardto
the SanJuan. Itincludes(1) the rightof CostaRican vessels to land atany part of the bank where navigation iscommon,
as established by article VI of the Cafias-Jerez Treaty; (2)
the right of Costa Rica to see Nicaragua making its best
efforts and collaborating with Costa Rica in order to
facilitate traffic on the San Juan; and (3) the customary
rights of fishingby residents of the Costa Rican bank of the
River.
B, A perpetualrightof free navigation
4.06. The first sentence of article VI of the Treatyof Limits shows the close
link between the legal situations of the contracting Parties with regard to the
SanJuan:
"The Republic of Nicaragua shall have exclusively the dominion and sovereign
jurisdictionover thewaters of the San Juan river from its origin in the Lakto its
mouth inthe Atlantic;but the Republicof Costa Ricashall have the perpetual rightof
freenavigationon thesaidwaters,between the saidmouth andthepoint,threeEnglish
miles distantfrom Castillo Viejo."
There is an evident interrelation between Nicaragua'ssovereignty over the
waters of the San Juan and Costa Rica's perpetual rights to free navigation.
Article VI makes Nicaragua's dominion and sovereign jurisdiction overthe
River conditional upon the Costa Ricanperpetual rights of freenavigation.
4.07. The adjective"perpetual" refersto the temporal dimensionofthis right.
It entails a permanent, continuous, uninterrupted and enduring right. Costa
Rica is entitled permanentlyto enjoy its rightto free navigation. Evidently, no
temporal limitationto this right is permitted.
4.08. Article VI furthermore establishes the extent and the content of the
right: its one offree navigation. The adjective"free" implies that navigation,
i.e. movement of persons or goods along the River, shallbe unqualified and
unconditional. The concept of "free" both at the time of the conclusion of the
Treaty of Limits in 1858- and today remains virtually the same. In
contemporarydictionaries, "free" was defined as:"I. Being at liberty;not being undernecessity or restraint, physical or mora...5.
Unconstrained; unrestrained;not under compulsion orcontrol ... 8. Not obstructed;
as, thewater has afwe passage orchannel ...15. Not encumbered with;asfree from
a burden ...16.Open to all,withoutrestrictionor withoutexpense ...18. Possessing
without vassalage or slavishconditions."l54
According to Dr Johnson's dictionary:"1.At liberty;not avassal; not enslaved;
nor a prisoner; not dependent.. .2. Uncompelled; unrestrained."l55 The word
is similarly defined in modern dictionaries. The first meaning of the word
"free" provided by the OxforD dicfionay ofEnglisih s the following: "able to
act or be done as one wishes; not under the control of another".
Other
meanings include: "not subject to engagements or obligations", "given or
available without charge".156
4.09. It follows that any limitation imposed upon navigation that by right is
"free" constitutes a denial of that right. Unlike other 19th century treaties
dealing with rights of fluvial navigation, the 1858 Treaty in no way
subordinates the right of navigation of the riparian State: in particular, it
contains no language relating to national treatment, domestic regulations or
other such conditions. The Act for the Navigation of the Danube signed at
Vienna on 7 November 1857 may be cited by way of contrast. Article I
provides as follows:
"La navigation du Danube,depuisl'endroit oi~cefleuvedevientnavigablejusquedans
la rnerNoire, et deplaisla mer Noirejusqu'au ditendroit, sera entierement libre sous
le rapportdu commerce,tant pour le transportdes marchandises que pour celui des
voyageurs; ense conformant toutefoisauxdispositions du prksent Acte de navigation
ainsiqu'aux reglements de police fluviale."l57
4.10. In particular, the right of free navigation includes the right for Costa
Rican vessels to cany their own flag. This was clearly recognized by
Nicaragua when it claimed that American vessels navigating the San Juan
WeBsrv Dicrrof~urycEngl~shLanguage(LondonCAGoudnch,1848)480 co1(emphasiInoriginal).
SanluelJohnsonD~uflonaof theEnglish Latr(LondonHJTodd,London, 1827)
''15TheOxforUicriortarytqEngIlrhed., Oxford:OxfUniversiPress,2003),687-8
15' 11CTS 474 {emphasisaddcd). Bilateral treatlesalsocontain similarprovlsloncexample.ion but
Yaguaronof30 October 1909,209 CTS4provide5 "Brazilian aUruguayavessels rem..subject,
in thejunsdict~onalwaters of thctworepubl~cs,to the fiscal and pol~ceregulatiohavehich thcy
estahll~hedmay hereafterestablish."could not use the American flag. This can be seen from the letter addressed to
Secretary of Stale Seward of the United States ofAmerica by the Nicaraguan
Minister in Washington, D.C., Luis Molina, on 7 October 1868:
"On the other hand 1 can assureYour Excellency that the presentadministrationof
Nicaragua does not feel disposedto consent that any otherflag, excepher own and
the oneof Costahca, as bordering stateshould floatinthenavigationof herinterior
waters; thatitconsideredasunauthorizcdtheuseofthe UnitedStates flagmadebythe
CentralAmerican TransitCornpany.''15x
4.11. Article VI of the Treaty of Limits also creates a fiscalfreedom: "no
chargesof any kind,or duties, shallbecollected unless when leviedby mutual
consent of both Governments." This clearly means that a distinctand express
agreement between the parties would berequired in order tolevy any charge or
duty.
4.12. The Cleveland Award also addressed certain economic aspects of free
navigation. Answering points raised by Nicaragua, and on the basis of the
interpretationof the 1858 Treaty,the Cleveland Award states inthethird point
of the dispositifthat:
"4.TheRepublicof CostaRica isnot bound toconcurwith theRepublicofNicaragua
in the expenses necessaryto prevent the bay of San Juan del Norte from being
obstructed;tokeepthenavigationof the River orPort free andunernbarrasscd,or to
improve itforthe commonbenefit.
5. The Republicof Costa Rica is not bound to contribute any proportion of the
expensesthat maybe incurred by the Republic of Nicaragua for any of the purposes
abovementi0ned."'~9
4.13. As to what constitutes"freedom of navigation", reference may be made
to the decision ofthe Permanent Court of International Justiceconcerning that
term in the Convention of Saint-German en Laye. The Court explained:
"According to the conception universallaccepted,the freedomof navigationreferred
to by the Conventioncomprises freedomof movementfor vessels, freedomto enter
ports,and to make use of plant anddocks,to loadand unloadgoods and to transport
goodsandpassengers.
PerezZeledbArylmcn100.AnnexeVnl6.Annex207
ClevelaAward,22March1888Thirpolnt:AnnexVol2,Annex 16From this pointof view,freedom of navigation implies, asfar as the business side of
maritime or fluvialtransport isconcerned,freedomof commerce also. But itdoes not
follow that in all other respects freedom of navigation entails and presupposes
freedom of commerce.
What the Government of the United Kingdomis concerned with in this case is the
principle of freedomof navigation regardedfromthe specialaspect ofthe commercial
operations inherent in the conductof the transport business; for thatGovernment has
nevercontendedthat the impugned measures constituted an obstacle to the movement
of vessels.
For this reason theCourt-whilst recognizing that freedomof navigationand freedom
ofcommerceare,inprinciple,separateconceptions-considers that it isnotnecessary,
for the purposes of the presentcase, to examine themseparately."l60
4.14. The International LawAssociation's HelsinkiRules of the Uses of the
Watersof International Rivers provides for its part the following definition of
"free navigation":
'"Freenavigation',as the term is usedin this Chapter, includes thefoltowing freedom
for vessels of a riparian State on a basis of equality:
(a)freedom of movementon the entire navigable course of the river or lake;
(b)freedomto enterports and tomake use of plants anddocks; and
(c)freedorn to transport goods and passengers, either directly or through trans-
shipment, betweenthe territory of one riparian State and the territory of another
riparian Stateand between the territoryof a riparian Stateand theopen sea."l61
4.15. Clearly,a broad interpretation has been adopted. As Charles Rousseau
rightly summarized:
"En d'autres termes la libertkde la navigation comprendpar definition, a c6tCde la
libertide circulation sur la voie d'eau, l'activitCconomique qui en est le corollaire
(embarquement, dtbarguement, transbordernent,mise en magasin,voire conclusionde
contrats reiatifs ces diversesopCrations)."lc2
4.16, Hence, the perpetual right of free navigation includes the unrestricted
and permanent right of movement of Costa Rican vessels whether engaged in
the transport of goods or passengersor both, on the routes and to the pfaces
establishedby the 1858 Treaty of Limits,i.e."either with Nicaraguaor with the
lbCiOscaChinn,Judgment,PCII,SerAID,No 63(1934). 83
61AnlclcXIV,lntcrnatlol awAssociation,Repmrtufthe FifpSccond Ur~(nnsienki,196h),507.
162CharlesRousscaDroit i~ternnfronalpubliIV,Lcs relat~snternation(sans S~rey,198495.interior ofCostaRica,through the SanCarlos River, the Sarapiqui, or any other
way proceeding from the portion of the bank of the San Juan River, which is
hereby declared to belong to Costa Rica."l63 Costa Rica's perpehal right of
free navigation is a right to navigate freely, without impediments, conditions,
restrictions or charges and duties of any kind. Any interference, whether in the
form of regulations, impediments, charges, restrictions or any condition that
might be imposed, is a violation of this right.
C. The meaning of "olijetosde comercio"
4.17. In the Oscar Chinvl rase, the Permanent Court also established the link
between freedom of navigation andfreedom of commerce, a linkevidenced by
the existence of an impressive numbers of treaties of "commerce and
navigation". Nicaragua itself has invoked one such treaty before this Court,
arguing (successfully) for a broad interpretation.]@
4.18. After stipulatingthe perpetual right of free navigation, articleVI of the
Treaty of Limits specifies "said navigation being for the purposes of
commerce". In the original Spanish the term is "con objetos de comercio".
Thus article V1 reads as follows:
"The Republic of Nicaragua shall have exclusively the dominion and sovereign
jurisdiction overthe waters of the San Juan river from its origin in the Lake to its
mouth in theAtlantic;but theRepublicof Costa Ricashall have the perpetualright of
free navigationonthesaidwaters, between thesaidmouthandthepoint,threeEnglish
miles distantfrom CastilloViejo,said navigation beingfor thepurposes ofcommerce
either withNicaragua or with the interiorof Costa Rica, throughthe San Carlosriver,
the Sarapiqui,or any other way proceeding from the portion of thebank of the San
Juan river, whichis hereby declared to belong to Costa Rica. The vessels of both
countries shall havethe power to land indiscriminatelyon eitherside of theriver athe
portion thereofwhercthe navigationiscommon;and no chargesof anykind,or duties,
shall be collected unless when levied by mutuai consent of both Governments."
(Emphasisadded.)
'63TreatyoLimlrs,artiV1.AnnexesVol2Annex7(b)
Mil~fatyandPurrrrnllruriuitlesinaga'rfM~uruguu(NicaraguvUnitedSrarcs ~Jdrnerrco).Itpentr,
C.J.Kcport1986,p. at135(pam279)4.19. It will benoted that the term "purposes of commerce" is annexedto the
geographical description, i.e. to the places to which those purposes could be
oriented: whether to Nicaragua or to the interior of Costa Rica, through the
above-mentioned rivers or from any partof the Costa Rican bank of the San
Juan. This formulation does not requirethat the commerce be Iinkedwith any
particular destination. ArticleVI specifiesthat navigationcan be carried out if
its destination is Nicaragua,or the interior of CostaRica, even ifthe navigation
continues to other rivers, and no matter where the navigation from the Costa
Rican bank proceeds. In short,Costa Rican navigational rights on the relevant
part of the San Juan includecabofageor coastal navigationbetweentwo Costa
Rican points, or navigation between one Costa Rican and one Nicaraguan
point, or navigation between two points of the Nicaraguan bank where
navigation is common, as well as transit to and from the sea.
(1 "Objetos"
4.20. Since 1994,165 and contrary to its previous position,l66Nicaragua has
challenged the scope of the expression "con objetos de comercio" ("for the
purposes ofcommerce"). Nicaraguanow contends that this expressionmustbe
understood as referring exclusivelyto transportation ofcommercial goods, so
that transportation ofpersons isexcluded. Thus inMarch2000,theNicaraguan
Foreign Minister, Mi-Eduardo Montealegre, advanced this position before the
Permanent Council of the Organization of American States, in the following
terms:
"This means that Nicaragua exercises, without any discussion, full sovereignty,
control and jurisdictionover the entire course of the San Juan River and thatCosta
Rica's rights, which Nicaragua has always respected, are limited to free navigation
along a stretch of the river, and only for transporting objeto.7de ccomercio.This
specificprovisionof the Treaty excludestourism and other activities."'67
NicaraguanForeignMln~st, rnestoLcal,toCostaRicanForclgnMlnlster,BerndNlehsusQuesada,NoteNo
940284,21March1994 Anncxcs,Vol3, Anne48.
166SeeNicaraguanChargkd'AFfa~rs.loCostaR~caOscarR.Tkllcz,tCostaRlcaForcignMinister,Fernando
VolroJirntnez,NoNo EN.789182,2August 1982:Annexes,Vo3Annex44
Tmslai~on by CostaRica(emphasisadded).Oritcxt"EstuquieredeclrqueNicaraguaejerce,sindiscuslh
algunplenasoberani,onlroyJ~ri~di~~lsbrc rioSanJuanentodasuextcnsl6y10sderechos deCosta
RicaqueNicaraguasiemphawspetado,se ll~nitalibrnavegacioenun trechudelrioy linicamcntepara
el tnnsporte dobjctode cornercio Esta d~sposlc~bnexpmsa Tratadoexcluyeclturismoy otras
actividatle:nnexes, Yh,Annex229.4.21. Nicaragua's new interpretationof this passage inarticleVI ofthe Treaty
of Limits is contrary to the ordinary meaning of the expression "objetos de
cornercio" in its context and in light of its object and purpose. It is contrary to
the tuavauxpriparatoires as well as the practice of the Parties with regard to
navigation on the River. It is contrary to the position previously adoptedby
Nicaragua itself.
4.22. The wording "objetos de cornercio"clearly includes navigation with
any commercial goal. The English version submitted by both Parties to
President Cleveland was "for the purposes of cornmerce".l@ "Purposes of
commerce" was the wording employed in the Cleveland Award itself, It was
also the meaningemployed in the English translation of the 1916judgment of
the CentralAmerican Courtof Justice aspublished in the American Jozrrnalof
InternationalLaw. 16"
4.23. The contemporary translation of the Treaty of Limitspublished in the
Briti snhdForeign StatePapers gives the relevant phrase in article VI as "for
commercial purposes".l7* This leads to the same result as there is no relevant
difference between "purposes of commerce" and "commercial purposes". So
too does the 1898 version published by John Bassett Moore.171 All these
translations confirm that "navigation" was intended to include commerce in
general, and was not limited to transportation of trade goods.
4.24. The same point was expressed by EP Alexander, the arbitrator
appointed by the parties to decide upon conflicts on the demarcation of the
boundary established by the Treatyoflimits. He coinmented in his first award
of 39 September 1897: "throughout the treaty, the [San Juan] river is treated
and regarded as an outlet of commerce."l72
168SeeAnnexes,Vo2Anncx 7(b) aAnnex7(c).
169Annexes,Vol2,Annex21.
17'48BFSP1049.seeAnnexes,Vo2Anncx7(d).
171(Wash~ngto,.C : GovernmPrint~ngOffice, VnlV.4706vfo WrlrUnlreSrar~hnr been a Pnup
172Award No. 130 Septemb1597,Pucrcnshrtreunarin1794-IYOU(1902, reprNijhvQ The Hague,
1997),528,5Annexes,Voi2,Annex 18.4.25. According to the Dictionay of the Spanish Languageofthe Spanish
Academy,the authoritative referencedictionary inthe Spanishspeaking world,
in the edition contemporaryto the conclusion of theTreaty of Limits, the term
Lc~bjeto" means:
"What:is perceivedwith one of the senses, or in regard to which they are exercised.
Objecru~n.// It is also called theterm or end of the acts of the potencies. Objectum.
I/ The purpose or intent to which a thing is directed or pointed at. Finis, scopus,
objeturn. /I The matter and the subject of a science; asthe object of the theology,
which is God. Among the facultatives it is divided in material and formal. The
materialis referred to the same subject or matter of the faculty, and theformal to its
end; as in medicine the material OBJECT is the illness and the formal is the sanity.
Objecturn,Velmateriale velformalefacullatli lsb.s. Objection or fault, doubt.llobs.
Fault and exception./lOfattribution. Refers to the main or ultimate end to which all
acts of the faculty or of the potency are directed, andby extension it is said of other
things that are mainly attempted. Attributionisobjectum."~73
4.26. None of these definitions of the term "abjetos"corresponds to "cosa"
(thing),nor was the latter the meaning given by the Parties in the Treaty,which
is Nicaragua's current interpretation.
One of the clearest indications that the use of the word "objetos" was
4.27
intended to mean "purposes" is provided by the 1858 Treaty itself. ArticleVI
is not the only place where the Treaty uses the word "objetos". Article VIII
reads as follows:
"Si 10scontratos de canalizacibn o de transit0 celebrados antes de tener el Gobierno
de Nicaragua, conocimiento de este convenio, llegasen a quedar insubsistentes por
cualquicr causa,Nicaragua se cornpromete a no concluir otro sobre 10sexpresados
objebos, sin oir antes la opinibn del Gobierno de Costa Rica acerca de 10s
inconvenientesqueel negociopueda tenerpara10sdos paises; con talque cstaopinion
seemita dentro detreinta dias despues de recibidala consulta; caso que el de
Nicaragua manifieste serurgente la resolution; y no dafihdose en el negocio 10s
derechos naturales de Costa Rica, este voto ser6consultivo."l~4
La Academia Espafiola,Diccionavio dIenguucu.~ielIanaFor la Academia E~puf(10thedn, Mahd:
lmprenta Naclonal, 1852),482. Originalin Spanish:"Loque se percibecdc10ssentrdo, acerca de
locual scejercen. ObjecturScllama tambiCntermi~lD fide Insactos delpotenclasObjechim I/El
finoIntenta que se dirigc o encamina algunacusa. Finis, scopus,ohjcctum /Iyael sujeto de una
cienciacornoel OBJETdc Is teolagia, que es Dios. las facultatsedivideen materiylformal. El
materlalla~nana1misrnosujli malende la facultyel formalcl deella, coren lamedicineOBJEI~
materiales enfcrmcda ye,formallsmtdad.Objectum,vcl ms~criaeel Furmalefacultatis. I!ant. Objecilin
6tachareparo //antTachay excepciirn./I ATRLBUCI~NLiaman aprincipa6 ultimo fa1cualse dingen
todos 10actos dInfaculta6 de lapotencia, porexlensinnsdicede otras casas quc principalmente se
intentan. Attribulion~sobj"cturn
174Annexes, Vo2,hncx 7(a)(emphasiadded).Clearly,"objetos" was usedin both articlesto mean purposes.
4.28 The translation of the Treaty of Limits presented by Costa Rica to
Cleveland, which was not contested by Nicaragua, confirms this. Article VIII
is translatedin the followingway:
"If the contractsof canalization or transitenteintobythe Government ofNicaragua
previous to its being informed of the conclusion of this treaty should happen to be
invalidated for any reason whatever, Nicaragua binds herself not toenter into any
other arrangement for the aforesa purposes without first hearing the opinion of the
Government of Costa Rica as to the disadvantages which the transaction might
occasion the two countries; provided that the said opinion is rendered within the
period of 30 days after the receipt of the communication asking for itif Nicaragua
should havesaid that the decision was urgent; and, ifthetransaction does not injure
the naturalrightsof Costa Rica, the vote askedforshall be only advisory."175
When speaking of the "expr.esados objetos" (aforesaid purposes), the article
refers to the contracts of canalization or transitthat Nicaragua may have
entered into.
4.29. Thuseach text-the original in Spanishand the translationpresentedto
President ClevelandGdemonstrates that the word "objetos"was employed to
mean "purposes" in both instancesinwhich the Treatyemployed that term, i.e.
in articles VI andVIII.
4.30. Nicaragua's questions to Arbitrator Cleveland in relation to points
which it thought were doubtful and required interpretation show that it also
treated the phrase "objetos de comercio" as referring to "purposes of
commerce". In a document sent to President Cleveland on 22 June 1887,
Nicaraguastated:
"4. Nicaragua consented, by Article IV, thathe Bay of San Juan, which always
exclusively belonged to her and over which she cxercised exclusive jurisdiction,
shouldbe common to both Republics; and byArticle VIshe consented,also, thatCosta
Rica should have, in the watersof the river, from its mouonthe Atlanticup to three
English miles before reachingCastillo Viejo,the perpetual rightof free navigationfor
purposes ofcommerce. Is CostaRica bound toconcur with Nicaragua in the expense
necessary toprevent the Bayfrom being obstructed,to kecpthenavigation of the fiver
and port free and unembarrassed,and to improve it for thecommon benefit?"l76
I75Annexes.Vol2, Annex7@)(emphadded)
7h LetterfromFernaGuzmnntoCostaRicanPorelgnMini‘‘PoinWhlch,According toGovernmentf
Nlcarag~me DuubtfulandRoquireInterpre2, June1887,reproducedin PtrezZeledbn,Argu1cni,9-1
at9-10:Annexes,VolAnnex36(emphasisadded).4.3 1. Similarly the fourth of Nicaragua's questionsto the arbitrator read as
fotlows:
"If Costa Rica, who, accordingto Article VI of the treaty, has only the right of free
navigation forthe purposes ofcommercein the watersof the SanJuan river,can also
navigatewith men-of-war or revenue cutters in the same waters?"'77
4.32. Thus in arguing that Costa Ricadid not have the right to navigate with
war vessels, Nicaragua insisted twice thatarticle VI refers to "the purposes of
commerce" or to "commercial purposes''."~
4.33. At that time Nicaragua raisedbefore the arbitrator all the issues it had
as to the correct interpretationof the Treaty of Limits-and there were several.
But in referring to Costa Rica's right of free navigation in the San Juan,
Nicaragua had no doubt that the phrase was properly rendered as "purposes of
commerce". Itfurthermore stated that Costa Rica's commerce in the River
could not be interfered with. Clearly, Nicaragua did not envisage the
possibility that "objetos de comercio" should be limited to the transport of
"commercial items".
4.34. In subsequent statements Nicaragua also consistently acknowledged
that "objetos de comercio"represents "confines dde comercio",anexpression
indisputably meaning "for the purposes of commerce" and which cannot be
understood as limited to carriage of commercial goods. Official statements
made by Nicaragua in 1897, 1954and 1974provide examples.
4.35. Thus the Secretariat of the Diet of the Mayor Republic of Central
America (of which Nicaragua formed part at that time), protesting against a
decree adopted by the Constitutional Congress of Costa Rica which allegedly
allowed vessels of all nations to navigate the San Juan with the purpose of
importing goods to Costa Rica, stated:
lbid (empha~added)
178 Cf also the followltzgpassage. "Article V1uf the TrethalCosta Ricashall hperpetuar~ghtsof
frce navlgatioti theSan JuanRiver from ~tmouthto three English miles below Cnst~lloVlejofor the
purposesuJcommen;.e.The navigatioofariver$jr ~omi~erclalpurpe;puroesrawwilhitthe menacethat
the appearance11swaterofvessels of war must necessar~lyimplynccdahas GoctRicaofwar vessels
Inthe lighloFArtIXlof the treaEven~fwarwasflagrant, hercommeronthrvrvercouldnobcinterfered
wlth.Th~sarticle simply transfoamperfect right whatthc lawof nationsdenum~natesani~npcraectright-
righlof outlet tseaan nrighoftrade, by mcansof this naturalhighway,with forei"nSecondand
third emphasis adReply othe RepubhofNicc~r~igunto the oftheRepublicol'r.sRlca,48:Annexes,
Vol6.Annex208."When the Stare ofNicaragua became aware of itit causedthe overall impression that
the abovementioned decree threatens the sovereignty of the Nation that has the
exclusive dominion and sovereign jurisdiction over the waters of the San Juan kver,
and Costa Rica only has the right to frcenavigation for purposes of commerce [para
$nes de comercioj fiom the mouth in the Atlantic up to three English miles before
reaching Castillo Viejo; ..."I79
4.36. In an official publication of the Ministry of Fareign Affairs of
Nicaragua of 1954under the signatureofthe Minister ofForeignAffairs, Oscar
Sevilla Sacasa, it was mentioned that, following certain border incidents,
"some conhsion as to the true legal situation of the San Juan river"was
observed in the CostaRicanand foreign press. The Report continued:
"[wlith the aimof clarifyingthis confusion the NicaraguanMinistryof ForeignAffairs
sees fit topresent the public with the compilation of the following documents,which
establishNicaragua's and Costa Rica'srights inthe SanJuan River."lso
After mentioning the Treaty of Limits, the Cleveland Award, the Matus-
Pacheco Convention, the Alexander Awards and a sketch-map showing the
boundary as demarcated, the Nicaraguan Ministry of Foreign Affairs
concluded:
"Tosum up thematter,and in accordancewiththedocumentswe arepresentingto the
public,Nicaraguahasthedominionand supremejurisdiction overthe wholeSanJuan
River,and CostaRicaonlyhas theright of navigation,exclusively,for commercialand
fiscal purposes [confines de comercio y$,~cales], at the part of the river between the
mouth of theAtlantic up to within three English miles of Castillo Viejo."l~I
Letter otheSecretary to the Dictof tlzcMayor Kof Central Arnenca to the MtorForeignAffairsof
CnhtaRica,27 July 1897 (enzphasisadded) A~~ne, ul 3, Ann3T Translatioby Costa Rica, the original
text in Spanish reads:"Al tenerse conucde81en cl Estado dc Nicaragua, causb generla~mprcsibn
dc que el indicndodecretatentatonLla sobcronia de la Nacibn, que exclusivamente tiene el dorninioy sumo
imperio de las aguasdrioSan Juan, y Costa R~caunicamente el derechhbrenavegaclirn para fidcs
comercio desdc sudecembocadura elAtlantico hasta rres rnlllas lnglesas analC~~~rilIuqo..."
180Translatton by Costa KicaOriginalSpanish"A fin dc aclarar esa canfusibn el Ministeno de Relaclones
Exterlore~dc Nicaragua ha creidcilspresentar al publicola compilaci6n de los sibwientesducumevtos, que
determinan 10sdcrcchos de Nicaragua y CostaRlcelerio San JuanSt~uacidjuridicdef Rio SonJuan
[M~n~sterideRelacioncs Extcriores, Managua, 19545,6. Annexes, Volh,Rnncx 215)
181Ib~dlranslatiby Costa Kica. OriginalSpanlsh: "Resumlacucstlonyddeonformidad con 10sdocumentvs
que presentatnos a1publ~co,Nicara~uatiene el yosumolirnpersabrctodo cl do SarzJuan, y CostaRica,
solotlene derechode navegdc~one,xcluqivamentecon finesde comercioy fiIpaticdclnoconlprendida
cntrc la dcscmbocadura en el Atlypunlo sltuadtremlllas inglesas antes de tlegara1Casti"lo VtejoThephrase "con fines de comeruio yfiscales" clear1y refers to commercial and
fiscal "purposes". LrFirres''inSpanish means '>purposes","'ends"or "goals".
According to the Nicaraguan position, 'Ym de camercio" is equivalent to
'bbjeetosde comercio".
4.37. This statement was repeatedverbatim in a later edition of the same
official publication twenty years later, showing the continued
acknowledgement by Nicaragua of Costa Rica's rights of navigation for
"commercial and fiscal purposes". 1x2
4.38 Ifthe purpose of the Treaty was to limit Costa Rican navigation to the
transportation of commercial "objects", the normal words employed would
have been "mercaderias", "bienres" (merchandise, goods), or the expression
"'articulosde cornercio". Indeed a number of treaties contemporary to the
Treaty of Limits which dealt with commercial navigation explicitly refer to
both transportof persons and"goods". Nothing inthe TreatyofLimits permits
the phrase "con objetos de comercio" to be interpreted in the narrow way
Nicaragua now does,
4.39. As noted in Chapter 2, the Treaty of Limits was preceded by an earlier
treaty (the 1857Cafias-JuasezTreaty) which never entered into force. Instead
negotiationswereresumed, leadingto the conclusionoftheCafias-JerezTreaty.
It is worth noting, however, the fundamental change of the wording of the
relevant provision. Article 5 of the unratified 1857Treaty read:
"La Rep6blica de Costa Rica 10mismoque la deNicaragua,usaranlibremente de las
aguas del Rio San Juan parala navegacibn y transportede articulosde comerciode
importacidn y expartacidn, respetando las leyes de aduana, y satisfaciendo 10s
derechos fiscales decada una de dichas Republicas tiene impuestoso imponga en lo
I,
sucesivo sobre 10s articulos que se introduzcan por sus respectivas aduanas.
(Emphasisadded)
"The Republic:ofCostaRica,as wet1 as the oneofNicaragua, willhave free use of the
waters of the SanJuan River, for navigationand transportationof articles of trade of
importandexport,observingcustomslegislation,andcomplyingwith thefiscal duties
of each Republic, as well as those that will be taxed over the articles thwillbe
brought in through their respectivecustorns."ls3
18' Siiuoajurididel KioSonJuan {Mtn~%ter~dne RelacioncsManagua,1974),6 AnnexVol6,
Anncx 222.
lb3 Translaby CostaRica.Annexes,Vol2,A5(emphas~sdded).Thus article 5 referreto navigation and transport ofarticlesof tradefor import
and export("artic"cu/ oscomerciode importucidn y exportucidn ")e.Treaty
of Limits of 1858discarded this terminology for a much broader one. It did
not confinethe right of navigation to the transportation of trade articles; it
included commercein its broadest sense, including the transportof persons.
4,40. Subsequent treaty practice between the parties shows that when they
intended to refer to "commercial goods", they normally used the words
"urtic~losl'"me~c'~aderiuo srbLefe~to ~","objetos de comercio". This isthe
case of the Treaty of Commerce (Volio-Zelaya)concluded on 14August 1868,
in which the parties agreed on freedom of trade for citizens of both countries
with regard tonon-prohibited goods ("articuios","efectos") .lt84r treaties
between Costa Rica and Nicaragua employ the term 'hbjeto(s)" to mean
"purposes" unless the contextclearly indicates othenvise.185
4.41. In conclusion, the expression in article VI of the Treaty of Lirnits-
"con objetos de cornercio"+ntitles Costa Rica to the most ample faculty of
commerce in the San Juan, a right that is free and perpetual. It entitles Costa
Rica to a realright ofuse, making it possible forall vessels (except forvessels
of war) sailingtoor fromCosta Rica totransit freely,either forcommunication,
trade or simple transitbetweenanypoints within CostaRican territory,or to or
from points abroad,or on either bank of the Riverwhere Costa Ricahas a right
of free navigation.
(2) "Comercio"
4.42. Thepurposes specified inarticleVI of the Treatyof Limits are thoseof
"commerce". The term "commerce" is preceded by the plural "purposes"
("objetos'". It necessarily means that there may be more than onepurpose of
commerce. Indeed, thisinterpretationis inconformity with the broad scopeof
the word "commerce", in particular during the 19th century.
lR4 See aniclcs I and 2:Ann2, Annc10 See also theunraRddltionalConvenol'2Deccrnbcr
1868 (Esquivel-Rlvas):Annexes, Vol12. Art2 refeto"\as tarlfassobre fletes de produclo~b
nicrcaderiasde irnpormcilinb exprthetarlfis farshippinof import or cxport porducts
merchandizes")t:ranbyCostaRica.
IgSecc.g. PrclimlnaryConventionona sclentlficsu13July186arl1AnnexesVol2Anuex 9.4.43 The expression "conobjetosde comercio" issimilartothe French "sous
le rapport du commerce", first employed at the Congress of Viennain relation
to freedom of navigation. The provisions adopted at the Congress of Vienna
constituted the basis for the development of the modern law of international
watercourses and semed as a model for most of the treaties regulating fluvial
navigation during the 19th century.186
4.44. The expression "sous !lerapport du commerce"was proposed by the
PmssianrepresentativeWilhemvonHumboldt, apparently withthe intentionof
denying freedom of navigation to non-riparian States. But this was not the
interpretation followed by other States, in particular France and Great
Britain,lX7When a Treatyconcerning navigationofthe Danube was concluded
on 7 November 1857, the same discussion arose with regard to the term "sous
le rapport du commerce", which was also incorporated in this Treaty.l TXhR
British Government explicitly declared that this formula was equivalent to
"tant pour le transport de.~ marchandises que pour csiui des voyageurs". 1x9
Thusthe most importantprevioustreatiesrelated to fluvial navigation thatwere
available to the negotiators of the Treaty of Limits confirm Costa Rica's
position.
4.45. The expression "ssousie rapport du commerce" was also used, inter
alia, by the Instiazrtde droit international in its "Projet de r2glement
internatioraai de na~i~ationfluviule" adopted at theHeidelberg sessionin 1887.
The first paragraphof article 3 reads as follows:
"La navigation dms tout le parcoursdes fleuves intemationaux, du point ou chacun
d'eu xevientnavigable jusqlue dans la mer, est entierement libre etne peut, sous le
rapport ducommerce, Etre interdite aucun pavill0n."~g0
IR6Artlcl2orthe RPglemepourluIrhrnavrgatides rivrim.~,Vlenna, 24 1815,64 CTS13,Martens, 2
NRG 434readasfolluws"Lanavigation dans tout le cuursdcs nvlires ind~qutesdansl'articleprt'okdent,du
rappordu commerce2treinterditc a pcsonne, bren enI'oseconfurmerauxarkglementsselaa la, ct nc poum,
palicc dcettnavigatio\csqucls seront congusdmanihreunlformepour tous, et aussl favorable quc
passiblaucommerce de toutcs les nations" (emphasis added)
87See Engelhardt (Du)re'gimeconvrnt~celefiuvesmlernatronaux Etudeprr~jde rPglemet.4nkrolll
pricC;dd'uneintroduclionh~sionque(Paris:Co1879)31-3
ACIforthe Navigatinn of the Danube,7November1857,117CTS471 Ari prov~dedthat navigation of
the Danube wouldbc "ent~eremensousIcrapport de commerce,tanltranspondes marchandlses que
pour celui dcsvoyageurs".
lg0lnst~tutde Drolt international, Tableatigkr~irnldes(1873-195(Basel VcrlaLr Recht und
Gesellschaf19571,71.Evidently, in the view of the members of the Institut, freedom of navigation
could not be prohibited to any flag when carried out in relation to commerce.
4.46. The same broad approach has been taken by the Court in interpreting
treaty provisions guaranteeing freedom of commerce. In Military and
Pumtnilitary Activities in and against Nicaragua , icaragua relied on a
statement of the Permanent Court of International Justice which precisely
included transportation of persons within the meaning of "commerce".
According to Nicaragua:
"Although it is a largcr concept, freedom of commerce includes freedom of trade.
Both expressions have a unique French translation: 'liberte de commercey-which
consists,asthe PermanentCourtpointedout,of 'theright-in principle unrestricted-
to engage in any commercialactivity,whether itbe concernedwith a trading properly
so-called, that is the purchase and sale of goods, or whether itbe concerned with
industry, and in particular the transport business; or finally, whetheitis carried on
inside the countr~ror, by the exchange of imports and exports with other countries'
(Oscar Chinn case, Judgment, 1934,P.C.I.J.,SeriesA!BNo. 63,p. 84). In the same
Judgment,the Court pointed out that
'According to the conception universally accepted, the freedom of
"navigation...comprises freedom of movement for vessels, freedom to enter
ports and to makeuse of plants and docks, to load and unload goods and to
transport goods and passengers" (Id.,p.65)
This definitionconformsto the conventionaland customasyrules in force.. .''lgl
4.47 At the Jurisdiction and Admissibility stage, the Court found that to the
extent that Nicaragua's claims constituted a dispute as to the "interpretation or
application" of the 1956 Treaw, the Court hadjurisdiction over those claims.192
At the Merits, Nicaragua repeated its assertions that commerce ought to be
given a broad interpretation:
"Since theword 'commerce'in the 1956Treaty must be understood in its broadest
sense, all of the activities by which the United States has deliberately inflicted on
Nicaragua physicaldamage and economic lossesof all types, violatc the principle of
freedom of commerce,which the Treatyestablishes in very general terms."l93
91Memanal oj"Nicarng(QuestronsclfJuriwii~rio~atndAdm,ssibih@),LCJ. PleadundParum~lif~~uy
Actrvrfia inond aguinsrh'ic.wa1403-4 (emphasisaddcd).
lg2 ,MIlifond ParamilrtavyAetrvrra andugrtinsr,V~corawa (NicarvgUnited S~a~esof An~ruica),
J~trrrdirunddrlmm.csibil!ty. epurts1984,p. 392 (para83)
Ig3MentorialofNicaragua,citCmenCrjisnmngMillfuryandfaramibtActivtieinandaptnsNicauumrr
(1Vicart11;Ut~~ruSdtaojAmsrrcaMerits, 1.Kcport1986,p 14at139(para 27K)The Court concluded that although Nicaragua had not established that the
United States Government was responsible for all acts of the contras, the
prohibition on Nicaraguan vesselsentering US ports "and transactions relating
thereto''constituted a measure in contradiction withfreedomof commerce and
navigation inarticle XIXof the 1956Agreement. '94
4.48. In the OilPlatforms case,the Court alsohad the opportunityto analyse
the meaning of the word"commerce"used in a bilateraltreaty. Itsaid:
"The Court must now consider the interpretation according to which the word
'commerce' in Article X, paragraph 1, is restricted to acts of purchase and sale.
According to this interpretation, the protection affordedy this provision does not
cover the antecedent activities whichare essential to maintain commerce as, for
example,the procurementof goods with a view to using them forcommerce.
1n the view of the Court, there is nothing to indicate that the partiesto the Treaty
intended to use the word 'commerce' in any sense different fiom that which it
generally bears. Theword 'commerce'is not restrictedin ordinary usageto the mere
act of purchase and sale;it has connotations thatextend beyond mere purchase and
sale toinclude khe whole of the transactions, arrangements, etc., thereininvolved'
(Oxford English Dictionary, 1989,Vol.3, p. 552).
In legal language, likewise, thisterm is not restricted to mere purchase and sale
because it can referto
'not only the purchase, sale, and exchange of commodities, but also the
instrumeatalitiesand agenciesby which it is promoted andthe means and appliances
by which it is carried on, and transportationof persons as wellofsgoods, bothby
land and sea'(Black'sLaw Dictionary, 1990, p. 269).
Similarly,the expression 'internationalcommerce'designates, in its true sense, 'all
transactionsof import and export, relationshipsofexchange, purchase,sale,transport,
andfinancial operations betweennations'and sometimes even 'alleconomic,political,
intellectual relations betweenStates andetween their nationals'(Dictionnaire de la
terminologie du dmit itnternntional (produced under the authority of President
Basdevant), 1960, p. 125[translationby the Registry]).
Thus, whether the word 'commerce' is taken in its ordinary sense or in its legal
meaning,atthe domestic or international level,ithas a broader meaningthathe mere
reference topurchase and sale.
Treaties dealingwith trade and commerce cover a vast range of matters ancillaryto
trade and commerce, such as shipping, transit of goods and persons, the right to
establish and operate businesses, protection from molestation, freedom of
communication, acquisitionand tenure of property. Furthermore, in his Reportcntitled 'ProgressiveDevelopmentof the Law ofInternational Trade', theSecretary-
Generalofthe UnitedNationscites, amonga numberof itemsfallingwithin the scope
of the Law of lnternational Trade, the conduct of business activities pertaining to
international trade, insurance, transportation, and other matters (United Nations,
OfficialRecordsof the General Assembly, twenty-first sessionA , nnexes,Agendaitem
88, doc. A16394 ...)
TheCourtalsonotes that,in thedecisioninthe OscarChinncase (P.C.I.J.,SeriesAIB,
No. 63, p. 65), thePermanentCourtof International Justicehad occasionto consider
the concept of freedom of trade under Article 1 of the Conventionof Saint-Germain.
The dispute before the Courtarose in the context of measures takenby the Belgian
Governmentin relationto rivertraffic in the waterwaysof the Congo. The Permanent
Court observed:
'Freedomoftrade, as establishedby the Convention,consists in the right 'in principle
unrestricted' to engage in any commercial activity,whether it be concerned with
trading properly so-called,that is the purchase and sale of goods, or whether it be
concerned with industry,andinparticular the transport business; or, finally, whether it
iscarried on inside the countryor, by the exchangeof importsand exports,with other
countries.' (Ibid.,p.84.)
The expression 'freedom of trade' was thus seen by the Permanent Court as
contemplating not onlythe purchase and sale of goods, but also industry, and in
particularthe transport business.
The Courtconcludes from allof the foregoing that it wouldbe a natural interpretation
ofthe word 'commerce'inArticle X, paragraph 1,oftheTreatyof 1955that itincludes
commercial activitiesin general - not merely the immediateact of purchase andsale,
but also the ancillary activities integrally relatedto cornmerce."l95
4.49. In its judgment on the Merits, the Court affirmed the broad
interpretation given to "commerce" in its earlierjudgment:
"...the Court considers that where a State destroys another State's means of
productionandtransportofgoodsdestined for export,or means ancillaryorpertaining
to such productionor transport, thereis in principle an interference withthe freedom
of international commerce. In destroying the platform, whose function, taken as a
whole was preciselyto produceand transport oil,the militaryactions made commerce
in oil, at that time and from that source, impossible,and to that extent prejudiced
freedom in cornrner~e."'9~
19j 011Plafirms (Islauquhhu uJImn v UniteSd~armofdmcrrca). Prelim~naryObj~c,CJnReports1996
(111,.803at818-19(para45-6,48-9)
Ig6Or1 Ph/j,rm.r (IslHepublrcofIrav Un~tedStotofAmericu)MerrtsI.C.JRcports2003.p.161at198-
204 (par79-84esp89). 4.50. Clearly, for the Court, the term "commerce" is not limited to the
operation of purchase and sale of goods: it includes the transportation of
persons and can refer to "all economic, political, intellectual relations between
States and between theirnationals."Ig7
4.5 1. Tosumup, the only intelligible meaningthat the term "con objetos de
comercio"as used in article VI of the 1858Treaty of Limits can have is "for
purposes of commerce", i.e."the purpose[s] or intention[s]to which a thing is
directed or pointed", as the 1852 Dictionar qf theSpanish Language of the
--
Spanis h cademy defined "objeto".l9The purposes arethose "of commerce",
which includes trade but is net confined to it, as Nicaragua itself has already
stated before this Court.
(3) Commerce as communication
4.52. As aIready seen, by its definition navigation implies travel or
movement from one place to another. Article VTof the Treaty of Limits
provides for the spatial extension from, or to, where this movement can take
place:
"the perpetual rightf freenavigationonthesaid waters, between the said mouth and
thepoint,three English milesdistantfrom CastilloViejo,saidnavigationbeingfor the
purposes of commerce either with Nicaragua or with the interior of Costa Rica,
throughthe San Carlos river, theSarapiqui,or any other way proceeding from the
portion of the bank oftheSanJuan river."
4.53. On the Costa Rican bank of the SanJuan and on those of itstributaries
mentioned in article VI (San Carlos and Sarapiqui), there are villages and
towns whose inhabitants use the River as their principal means of
communication. Given the lack of roads, asshownin Sketch Map 3 (opposite
page 8 above), there is effectively little choice. But even if there were roads,
the River would remain the easiestand most effective way to travel.
19OilPlu@rms(IslomrcRepublicofv.UnlradSfuicvofAmenca). PreliminmyObjeciion,I 1996Reports
(111,818(par45)
La AcademiaEspailoDiccrol~uno c/enpa custclipor iuArudemiEspaiioi(10tcdn, Madrld.
ImprentaNational,18482,A familyam theCostaficm 4- of theSm Juan(nearLa Tiga)with h& bo~at,Schoolandcbmh m Costa Wiem baaaof theSm Juan.4.54. The inhabitants have used the waters of the San Juan for
communication and contact since the very inception of those villages and
towns. They have also used the River to carryon trade with the village of San
Juan delNorte. The reasons they travelarc those commonto humansociety in
anypart of the world: for example,contact with family and friends, education,
health care, access to their farms, and performing their jobs. This commerce
along theRiver isnot onlyto the advantage of Costa Rican inhabitants, but also
to the inhabitants of the only Nicaraguantown onthe region, San Juandel
Norte, who are economically dependent on trade with their Costa Rican
neighbours.
4.55. The use of the San Juan for navigation by Costa Rican government
officials as well asby the inhabitants of the region has been vita1.199TheRiver
enables Costa Rican government officials to provide essential services to the
local population-a rnajoriw of who are of Nicaraguan origin-including
health, education and security.
4.56. Navigation through the San Juan for these purposes falls within the
rights acknowledged by article VI of the Caiias-Jerez Treaty. The second
meaning of the word "cornerci g~ve~ by the Dictionary of the Spanish
Language of the Spanish Academy contemporary to the conclusion of the
Cafiaz-Jerez Treaty is "Comunicacion y trato de unas gentes 6 pueblos con
otros. Commercium, comvlzunicatio."2~~ A~s stated above, Nicaragua has
recognized before this Court that the term "commerce" is larger than "trade".
The former includes the latter. This was also the understanding of the Central
American Court of Justice in 1916 when it declared that Costa Ricapossesses
"el derecho contructual de perpetua navegacibn en el rsb, enzpezaradodesde
tres millas abajo del Casti-illKejo, comprensivo de la ainplia facultad de
trunsitoy de come~cio".~ol Anarrow interpretation of the word "commerce" as
meaning exclusively"trade" would be contrary to the ordinary meaning of the
term inits context.
lg9 +%aJuan: Calmand uneasi, aNoc~in,Sanlo4eJul1999AnnextxVol5,Anncx155.
*0°Translaironby Costa Rlca: "Communicationand dealing of people or towns with others, Cornrnerclurn.
communrcatroL.AcademiEcpaiioDiccronurdtla lenpa cusrullnrtapar.kiEspahl(10tedn,
Madrid.lmprenNational, 18170,
201 Anncxcs,Vol2.Annexat222:"thecontractualrightof perpetualllarivebeg~nninatapoint
threemilesbelow CastllloV~ejo,accompaniedbythe fullprivilegeof transitandcummerce".4.57 Costa Rican boats have a perpetual right of free navigation for the
purpose of communication between thevillages and towns, or any other point
situated on the Costa Rican bankof the San Juan,to any place on both banks
of the River where navigation is common, or to the interior of Costa Rrca,
through the San Carlos River, the Sarapiqui, or any other route proceeding
fromthe Costa Ricanbank ofthe SanJuan, as statedin article VI ofthe Treaty
of Limits. This was the practice before theTreatyand has remained so since,
and untilthe present dispute:arose.
(4) Commerce as transportation of goods and persons (including
tourism)
4.58. It is evident that the transportation of persons, including the
transportationof tourists along the SanJuan, falls withinthe activities pursued
"con objetosde comercio"("for the purposes of commerce"), in accordance
with article VI of the Treaty of Limits. Transport of passengers is a
longstandingcommercial activity.
4.59. Indeed in the 1850sthe most important commerce carriedout on the
SanJuan was the transportofpassengers. The SanJuanwas well-known at the
time as a transit route, givethetens of thousands of passengers that used its
waters to travelfromthe east coast ofthe United States ofAmerica b its west
coast, as well as those migrants travelling to San Josk and other localities in
Costa Rica, The Californiangold rush merely intensified theuse of the River
as a route for passengers.
4.60. Throughout the 19th century there was substantial commercial
transportation of passengers, both leaving from and coming to Costa Rica.
Most of the Europeanimmigrants who settledEnCosta Rica duringthe second
half of the 19th century used this route (the Atlantic port of Lim6n not yet
having been developed). They arrived at San Juan del Norte Bay, navigated
upstream on the San Juan to the Sarapiqui River, and from there, the trip
foIlowedby muleto the interior.
4.61.
The Treaties of Friendship, Commerce and Navigation concluded by
Nicaragua with France and Great Britain, respectivelyon 11April1859and 11 (c) Act forthe Navigation of the DanubebetweenAustria,Bavaria,
Turkey and Wtirttembergof 7 November 1857;205
Treatyof Peace, Friendship and Commerce betweenChina and
(d)
Great Britain of 26 June 1858.206
4.64. In the early 1970sCosta Ricanentrepreneurs started organizing tourist
journeys through different rivers and waterways in Costa Rica,2" the most
notable being the route starting in Puerto Viejo de Sarapiqui, following the
Sarapiqui River, using the San Juan to access the Colorado River,and then on
to Barra del Colorado or continuing to the Tortugero Canals, and back again
using the same route. Transit through the San Juan was necessary in order to
transport those passengers within Costa Rican territory. But commercial
navigation of passengers for tourism purposes has also been conducted with
Nicaragua, as with the Rio Indio Lodge and SanJuan delNorte. See Sketch
Map 6 opposite.
4.65 These tourist routes have been used by Costa Rican boatmen, tour
operators, hotel owners and sport fishing resorts for many years without any
interference or objection from Nicaragua.208
4.66.
Of course tourism is a commercial activity. Within theWorld Trade
Organization,tourism is a service sector coveredbythe GeneralAgreementon
Trade in Services(GATS).TheGATS'scheduleslargelyfollow a classification
based on the United Nations Central Product Classification (CPC) system,
which identifies 11 basic service sectors, plus a 12th category for
'05 Articl1"La navigation duDanube,depuis I'endroitou cc flcuvc dev~entnavigablejusque dansla mer Noire,ct
depuis la mer Noire jusqu'au dit eseraentrilmmentbbrsous lertrpporl commerce, tonpour le
lransporf marchandisesquepouu ceide~voyageur3,enseconformanttoutefols aux dispodutpdsent
Actc de navigalion alns qu'auxrkglementsdc police fluvisle" (emphas~sadded): 117CTS474.
206 ArticlXIV:"British subjects may hire whatever boats they please for the transport of gaods or passengers...".
119CTS 157.
Affidavit of Marvrn Hay-Gonzalez,28 J2006:Annexes, Vol 4, Annex 91; Afidavit of Wilton Hodgson
Hodgson, I February2006:Anncxes,Vol4, Annex 96,and Affidavitof Ruben Lao Hcrnindcz,17February2006:
Annexes,Vol4,Annex 103. See also Managerof SwissTravelSewiccs, EmillaGamboa,to CostaRicanMinister
of Public Safety,Angel EdrnundoSolano, 7 June 1982:Anncxcs, Vol6, Annex 223.
lo8See Manager of Swiss TrovcServicesErn~llaGarnboa, to CoRlcanMlnlster of Publ~cSecurlQ, Angel
EdrnundoSolano7 Junc 1982 Annexes,Vol 6, Annex 223. See alsoAfnTdSantos MartArrletFlores,
27January 2006:Annexes, Vol4, Annex 87;Affidavit ofHay-Gonmlez, 28 January 2006:Annexes, Vol
4, Amex91, Affidavit of Daniel Reese Wise, 29 January 2006:An4,Annex 95; Amdavit of Wilton
Hndgson Hodgson,1February 2006: Annexes, Vol 4, A96;xandAfidavltof Ruben Lao Hcmindcz, 17
February006:Annexes,\'o4,Annex 103.miscellaneous services. "Tourism and travel related services" is one of these
12 basic service sectors. The tourism category breaks down into sub-sectors
for hotels and restaurants, travel agencies and tour operators, tourist guide
servicesand other related services. Tourism services areincluded in the new
services negotiations which beganin January 2000.209
4.67. As the Convention establishing the SustainableTourism Zone of the
Caribbean, signed on Margarita Island, 12 December 2001, explains in its
preamble:
"Tourism constitutes the main economic activity for most countries of the region
referred to as the GreaterCaribbeana ,nd itrepresents in itself, a significant factorin
foreign exchangeearnings,economic and social de~eloprnent."2~~
Both Costa Rica and Nicaragua are signatories to this Convention, though
neither has yet ratified it.
4.68. Tn the Kusikili/Se Idluddu case the Courtrecalled that the Parties
interpreted the notion of freedom of navigation as including movement of
tourist boats. In particular, the Court mentioned, this applied to the southern
channel whose waters and banks are entirely within Botswana. The Court
recalled the Parties' agreementwith regardto non-impediment of navigation
"including free movement of tourist^".^^
4.69. It is worth noting that the Nicaraguan Minister of Tourism Pedro
Joaquin Chamom, shortly before becoming Minister of Defence, recognized
that navigation for purposes of tourism is included within Costa Rica's
navigational rights. On 26 July 1998, Minister Chamom affirmed that he
was not opposed to Costa Rica using the San Juan for purposes of tourism,
204 http /lwwwwto.org/cnglishltratop-elserv-e/to~r tsmlopltour~sm-en thc htnewarkof thc
UNCITRAL Modcl Lawon EnternationalCummercial Arbitta~~onad21Junc 1985, "commercial" is
i~tcrpretedas cov"matteransrng liom all rclatlonships of a comnerclal nature, whether contractualor not
Rclationsh~psof a commercial nature hutarc not limltcd to, the follawmngtransactions: any trie
~ranwctianforthe supplyor exchguodsor services. distragreemenco~n~nerclepresentatorn
agency,fdctorlng, Icasing; construction of works, consult~ng,engineering; licensing,; investment;financing,
banking; Insurance,oitationagrcrmenr or concession,juintotheforms of Industrialor business
cooperation;carnofgoodsor passengers by air,sea, rail or road." doch/40/17, ann1)
www ~CS-~~C.~~~(D~~~~~~~~~M~~L:ISTZC~I~EGAL~DOC~AND~IND~CATO.DOC
'SeesalsthedeclaratiofJudgeRanjev(~bld,1110)and Koroma(ibid, 1111).106-8(40; 102, 103)since "this is the modern way of commerce" (although he disagreed with what
he called "Costa Rican heavily armed transit navigation").zl*
4.70. The 1956Agreement provides both further evidenceof the existence of
the right of navigation for the transport of persons in accordance with the
Treaty of Limits and theCleveland Award, and an additional basis for assuring
this right, Article 1 of the 1956 Agreement provides that Costa Rica and
Nicaragua.. .
"shallcollaborateto the best of their ability inorderto carry out those undertakings
and activitieswhich requirea common effortby both States and are of mutual benefit
and, in particular, in order to facilitateand expedite traffic on the Pan American
Highwayand on the SanJuanRiver within the terms of the Treaty of 15 April 1858
and itsinterpretation given by arbitrationon 22 March 1888, and also to facilitate
those transport serviceswhich may be provided to the territory of one Party by
enterprises which are nationals of the other,"213
4.71. The reference to "traffic" on the San Juan can only be understood as
including transportation of both goods and persons. This is its ordinary
meaning, as found in standard dictionaries.214 The same can be said of the
reference to "transport services". By requiring both parties "to facilitate those
transport services which may be provided to the territory of one Party by
enterprises which are nationals of the other", article 1of the 1956Agreement
creates a further legal ground for the transportation ofpersons through the San
Juan by Costa &can boats.
4.72. For all these reasons it is clear that Costa Rica possesses a right of
navigation for transportation of persons, including tourists, in the stretch of the
San Juan where it has a perpehal right of free navigation.
212"Costa Kica Exhlblts'Army' onthe San Juan River", La Prensu,Man26uJuly 1998:AnnexcVol 5,
Annex 138 Seealso "Charnorm objects to Patrols",Lo ~k~idn,SanJos1998 AnnexesYo15,Annex
139.
*I3 Annexe Vsol2,Anncx24.
214 Accoi-dilothe DtccronarroluLmguuE,rpaiiolade la ReulAcudcmraEspaiiula,"trafico" hasthe following
mcanings "Acci6n de traf2.aCircu\ac~vnde vehiculos pmrccamino ct.. 3Por ext.,movimicnoo
tdnsildepersonas, mercancietcpor cualquier omedio dctransponc(2lst edMadrid EspasaCalpe,
1992),vul.I,2005. Translationby Costa Rica:"Action of 1raFficking.2 CirculationoFvehiclesthough streets,
roads, tt3. By cxtcnsimovementor trafficpeoplernerchandizes,ctcanyymeans of transpoflalion"
TheOxfordDruriun(irEi~glrrhattributesasmcanmg uftheword"traffitheFullu\ving:"vchrnovlng
ona publichighwaa streurnofheavytruQicthemovementof ships,trains, aircraft, or pcdcstsians:Europe
air rvc#c.thetransportationof goodsor passengerstheidseojrailwaysforgoods frLgfjic.":(2nd edn,
OxfordOxford UniversiPrcss,2003), 1870In Frcnch"triltisdefined a"Ensembledes transports dc
n~archand~scsou de voyageurs, ou de c~rculationsde vthiculcs ou , w s'emectuent,penunet
durce definie hour, mois, annkc),volede communicationw sur I'enscmhledes voies d'un tcrritoire".
GrunciDictinnnuEt~c~iriopddiLeam~rsse(Paris Larou19851vol 10,10340 D. Costa Rica's right of protection of commerce and revenue control
4.73. Costa Rica's understanding of article VI of the Treaty of Limits has
been consistent. As mentioned above,the perpetual right of free navigation is
a State right and as such it is not limited toprivate vessels. Public vessels also
enjoy this right. This was the position successfully upheld by Costa Rica
before President Clevelandin 1888 and it isits position today.
4.74. By Decree No XXXT of the Costa Rican Government, dated 16March
1886, a guard (one officer,five men) was created atthe mouth of the Colorado
River ''with the purpose of establishing the necessary surveillance of
contraband in theAtlantic coast of the Republic."2ls Decree No XXXII of the
same date gave further detail as to this "maritime and terrestrial guard", which
was to have at its disposal "a national steamer" with a crew of four. That
Decreegave the guard various functions, including:
"1"- Toprevent contrabandin the waters and territories of its circumscription.
...
5th-Toreconnoitreat leastoncc a week the RiversSanJuan,Colorado, Sarapiqui,and
San Carlos; the firsin the wholeextent that itisnavigable for CostaRica, the second
in its entire extent, and thelatttwo along the entire stretchesthat are navigable by
steamer.
T ]hitinerary shallbe reserved in order that the guard's actionsare noteluded.
6t - To institute preliminary proceedings andto report seizures to the respective
authorityat Lirnon."Z16
4.75. Nicaragua opposed these instructions on the basis that they would go
beyond Costa Rica'sentitlements. CostaRica rejected this contention, on the
following grounds:
"I should add that Costa Rica has the perpetual rightto navigate theSan Juan River,
or partof it,inaccordance with the treaty: thaitis obliged, andnaturallyso,to guard
and defend the river,since it has the use ofits waters,and because a part of its right
bankbelongsto it, because the river is the common entry to both Republics, and it is
in the direct interestsof bothto defend itthat,given thisobligation, Costa Rica may
usc the necessarymeans to fulfil it and it may, for the samereason, navigatethe river
in any kind of vessel:that, in order to do so, Costa Rica does not require Nicaragua's
approval or request, since it would not be acting as Nicaragua's ally but in the
exercising of itsown right: and thatshould the opposite occur, Costa Rica would be
left totallydefencelessat Nicaragua'swill."217
215Annexes,Vol6, Ann205.
21 Annexes,Vo6,Anncx206.
217Costa RicakorcignMlnjster, Ascensibn E~toN~caraguanForeign Minrster. Francisco U31tcllbn,
August1886Anncxes,Vol3Annex344.76. The matter was referred to President Cleveland as one of Nicaragua's
disputed points. Inits pleadings before President CEeveland,Costa Rica began
by noting that articleVI of the Treatywas not expressed in exclusive terms. Tt
asserted as "beyond discussion that Costa Rica can navigate in the San Juan
river with public vessels, which are not properly men-of-war". It noted the
rights of Nicaragua under theTreaty to bring cargo to the Costa Ricanbank:
"this permission, orright, presupposes, necessarily,the correlativeright of Costa Rica
to watch its own banks by the only practicable means, which is the revenue police,
during the whole course of the river navigable for Costa Rica."
Otherwise CostaRica would be at the mercy of smugglers.21~The Reply went
on to deal separately with men-of-war, which itsupported largely by analogy
from other situations,pointing outthat the prohibitionof acts of war onthe San
Juan did not entail the prohibition of navigation.21' It also argued by
implication fromthe dutyofCostaRica todefenditsbank underthe Treaty that
it had thenecessarycorrelative right to use regular men-of-war onthe Riverfor
that purpose.2'0
4.77. Nicaragua's argument also largely focused on men-of-war. As to
customs vessels it argued that:
"Vesselsof therevenueservice are akin to vessels of war. While they have not all the
means of aggression as the former, stilthey are armed vessels,capable of enforcing
their demands by force, and must be classed inthe same category as vessels of war.
Neither havethe right, under a commercial license,to invade the territory,domain, or
sovereigntyof the Republic of Nicaragua."221
4.78. So far as the fourth question raised by Nicaragua is concerned, the
terms of President Cleveland'sAward were as follows:
"'Second. The Republic of Costa Rica under said treaty and the stipulationcontained
in the sixth article thereof, hasnot the right of navigation on the river San Juan with
vesselsof war;butshe may navigate said riverwith such vesselsof the revenue service
PkrczZeledbn,drgunrent,AnnexesVol6,Anncx207.
219 Ib~d,158.
220Ibtd,158-150.
321ReplyrgtirRep~tbbchf~covugtrrrhCaseofzhe Rep:plrcfCosHica,49AnncxcsVol6. Anne208.as may be relatedto and connected withher enjoyment of the 'purposesof commerce'
accorded to her in said article, or as may be necessaq to the protectionof said
enjoyrnent."222
4.79. Hence the Awardmade it clear that, although it didnot have a right to
navigate with vessels of war, Costa Rica does have a right to navigate with
vessels of the revenue service (which were public armed vessels). TheAward
also detailed the scope of this right of navigation: (1) when related to and
connected with the enjoyment of the "purposes of commerce" and (2) as
necessary for theprotection of its enjoyment of that right of navigation.
4.80. The recognition of a right of navigation for public vessels of a
neighbouringcountrywas not exceptionalin LatinAmerica atthat time. It can
be explained by the fraternal relations existing among the region and their
collaborative effortsto preserve their independence. Treaties concluded at the
time showthat this right ofnavigationwithpublic vessels even extendedto war
vessels. The following are examples:
(a) Convention on fluvial navigation concluded between the
Argentine Confederation and Brazil of 20 November 1857
(article3);27-3
Agreement on the navigation of Putumayo and Iza Rivers
(b)
between Brazil and Peru of 29 September 1876(article 5);224and
(c) Treatyof Commerceand FluvialNavigation between Boliviaand
Brazil of 12August 1910 (article 16).225
There are also examples in other regions of the world in which the right to
navigate with war vessels was accorded to a neighbouring State.226
4.81. In drawing a distinction between men-of-war and revenue cutters,the
ClevelandAwardevidently took into account contemporary naval practice, and
222Annexes,Vo2,Annex16.
223 118ClS45,47.
224151CTS93.
225211CTS388,380-1
226See notablythe 'IreatybetweenIraq and Iranrhe boundaalong the Shaii-&A4July1937,
Anrcle4(b), LNTS 241.the distinction would have been familiar to all concerned. In the mid-to-late
19thcentury, revenue cutterswere coastguard vessels, lightly armed auxiliary
vessels used for a variety of purposes associated with the enforcement of
customs, quarantine and revenue laws. In case of need they could be used as
auxiliary vessels for naval purposes, e.g. in the enforcement of blockades, and
United States naval cutters of the Civil Warperiod led exciting and dangerous
lives. Ausefulillustratedreview ofthis period is providedby DL Canney,U.S.
Coast Guard and Revenue Cutlers1790-1935. Canney notes that whatis now
the UnitedStatesCoastGuard was previouslycalledthe United States Revenue
Cutter Service, "a domestic law enforcement agency originally under the
Treasury Department".227Initially cutters were smallor medium-sized sailing
vessels, built for economyrather than speed.
"ln the firsgroup of cutters, built in1791 and 1792, armament was limited to the
small arms issued to the crewmenand small swivel guns. Subsequently,the vessels
rarely carried more than six relatively small cannon. Only when the cutters were
called intoassist with navaloperationsdid armament increasesignificantly."228
4.82. United States cutters in service at the time of the Cleveland Award
include, for example, the Ccirwin(commissioned 1877, eight oficers and 33
enlisted men, three guns, a veteran of the Bering sea patrol), the Forward
{commissioned 1882, seven officers and 31 enlisted men, two guns) and the
Fasenden (commissioned 1883,sevenofficersand 33 enlisted men,four guns;
she was the last side-wheel steamer and spent mostof her career cruising on
the Great Lakes).229
4.83. It is truthatPresidentCleveland excluded the possibility ofCosta hc.a
navigating with vessels of war. But he acknowledged that other public vessels
could do so, particularly "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
enjuyment."23Q
227 DL Canney,UCoosfGuardnnd RevenuCutter1790-1935(Naval InstPress, Annapol~s,1xlii,
Copieofthis wohavebeen deposiwlth tRegistrar.
228Ibld, 1
229Ibld44-61
230ClevelandAward,Sccodo~nt.Annexes,2, Annex 16.4.84. Ttis significant that in opposing before President Cleveland Costa
Rica's use of revenue cutters, Nicaragua referred to them as "armed vessels,
capableofenforcing their demands by force". But President Cleveland refused
toassimilate thosevesselsofthe revenue serviceto warvessels. Only thelatter
were declared to be excluded from the perpetual right of free navigation
recognised by the Caiias-Jerez Treaty.
4.85. Following theClevelandAward,Costa Rica continued to navigate with
armed personnel on revenue cuttersor other vessels on the lower part of the
River and Nicaragua respected this right. This can be seen from an incident
that occurred at the place where the San Juan ceases to be the boundary
between Costa Rica and Nicaragua. On 21 February 1892,the Costa Rican
steamer Adelabegan its voyage,with the Commander of a fiscal post and eight
guards on board, at the mouth ofSan Carlos River in the direction of Castillo
Viejo. Thepurpose of the journey wasto install the Guards atthe fiscal post at
Terron Colorado, Los Chiles, on the Costa Rican side of the border near the
source of the Sm Juan in the Lake of Nicaragua.
4.86. The author of the report relates that "before entering the waters under
the exclusive dominiurnof Nicaragua, I did hide in Costa Rican territory the
arms and ammunitions that I carried for that post [re~~uardo].""] Then the
Commander went by boat to the post of Castillo Viejo to request Nicaraguan
permission to continue navigating on the San Juan with their arms and
personnel, explaining "the fiscal purpose" of that journey, i.e. installing the
guards in their post. The Nicaraguan official, after consulting the Ministryof
War of Nicaragua, denied permission and the Costa Rican Commander was
obliged to transport its arms and ammunition by land, which was extremely
diff~cultto do.232
4.87. This account shows the significant distinction between navigation on
the part of the San Juan that constitutes the border between Costa Rica and
Nicaragua, and the partof the River where both banks are Nicaraguan. Tn the
former, navigation of a steamer carrying fiscal guards with their arms and
ammunition was usual and did not provoke objection or response from the
Nicaraguan authorities. In thelatter, such a right of navigation did not exist;
on this occasion the CostaRican commanderrequested permission, whichwas
denied.
23 LetteofClrA NnvarroAssisttotheInspectortothc Inspecorneralof the Treasury,1892rch
(translatiCoslaRicaAnncxcs,Vo6A~lnex209.
232Ibld4.88. Another Nicaraguan agentwasprepared to be moreflexible. The Chief
of the Costa Rican Guard (resgzsardo) of El Colorado informed his superiors
that the Customs Administrator of Nicaragua in San Juan del Norte had
authorisedhim to seize contrabandandcriminals on theNicaragua shnoresand
also that he "had freepassage with [his] armed guards through the Castillo in
case I wanted to carry out any mission in Rio Frio".233 The latter position is
located further west of the Castillo Viejo. Clearly, this authorisation allowed
official navigation on the San Juan beyond the waters that form the common
boundary. By contrast there was no need for authorisation in respect of areas
of the SanJuan where the navigation was common.
4.89. Reportsfrom 1893to 1909refer to the substantial activitiesofthe fiscal
guards("resguardos") inthe regionofthe borderofthe SanJuan. Undoubtedly
these fiscal guards used the SanJuanto perform theirduties.234
4.90. Costa Rica has always respected the prohibition on navigation with
vesselsof war. Indeed, sincethe adoptionofthePolitical Constitutionof 1949,
Costa Rica does not possess anArmy and there is no material possibility for
Costa Rica to breach this obligation: Costa Rica does not have any vessels of
war, butonlypolice vesselswith minimumdefensive capacity. Photographs of
the relevant vesselsareshown opposite.
4.91. Costa Rica's right to navigate with fiscal vessels was accurately
described by Costa Rica before the Central American Court of Justice as
follows:
233 Reportofthe ehicf afGuard [mguardoof ColoradJuanFranciscoZeledbn,to the GeneralInspectorof the
Trzasury,31Octob1892 transcnpted in DocumN.97 fromthe Inspectornf the Trto thSecretaryof
State inargcof the Treasury,dated 8 Novcmber 1892:Annexes,Vol6,Annex 210
234 Ina Reportof 31 March 1894,theCommandernf thcRioColorado-Coloniainformed the GeneralInspector
of Treasuryof activitiescamed between 1893and 1894 Hementionedthe existenceorposts at Rosalia,El Toro
and thc confluenceofthe Reventazonand ParisminaRivers:Annexcs,Vol6, AAnReportof 10March
1895 set out thejurisdiction of the differentGuards underctlon of El Colorado and thelr actlvlt~es:
AnnexesVol6, Anncx212 Seealsothe Reportof 16March 1906concerningthc same region.Annexes,Vol6,
Annex 213,as well theproposalfor the crcatlon of a new guaconfluencofthe River Chirrip6 with
the Colorada. See Sub-Inspector to thc Treasury OFColorado to the Cicncral Inspector 24 the Treasury,
Novcmher 1908Annexes,Vol6, Anncx 215, and theReport7Dccemher 1909relating to policc aclivltles
displayeby the Guardof Coloraconcern-nthe CostaR~canbank of the JuanSee Sub-Inspectto the
Treasuryof Ssrra del Coloradoto theGencralloftheTreasuty7Dcccmber1909 Annexes,Vol6Anocx
216.A.Bizw dellBan Gdmr
&.lorn ddSrapiquYi
C.Wa Sm JuanPolice boat that was famerly used forre-supply operations"That, withregard to the SanJuan River, theconventionalrights of Costa Rica are, in
a ccrtain aspect, less than the corresponding rightsof co-ownership (condominio):
Costa Rica, for example, cannotply that stream with war vesselsas, of course,
Nicaraguacan do; but, on the otherhand,those rights aregreater than those of a mere
co-owner (copropietavio) because the Costa Ricanvessels, as well merchantmenas
revenue cutters, in the zone in which navigation is common, have a free course over
the whole river, throughout its length and breadth,and free access, exempt from
imposts,to any point on the Nicaraguanshore."235
4.92. In its Judgment, the Court acknowledged the extent of Costa Rica's
rights stating that:
"The proposition that the rightsof navigation on the San Juan River that were
confirmedinCostaRica do not extendto vessels ofwar,but simplyto vessels devoted
to revenue and defensivepurposes-an interpretation thatin no way detracts from the
doctrineset forth concerning the practical ownership pertaining in great part to Costa
Rica over the San Juan River because navigation withvessels of war, aside from
constituting a cause for disquiet, would imply a function appropriateto territorial
sovereignty."236
4.93. The purpose of those vessels of the revenue service was and still is
broadly the same: to prevent contraband, smuggling and trafficking of persons
and other related activities proper to border areas. Costa Rica's Foreign
Minister Roberto Rojas Lbpez, in his intervention before the Permanent
Councilof the OrganizationofAmerican States on 8 March 2000, summarized
the situation as follows:
"The Award-accepted by both countries without objection-acknowledges Costa
Rica the right that its revenue servicevessels freely navigate on the lower part of the
San Juan in order to fulfilits duties. Obviously,a revenue service vessel, destinedby
its own nature to fulfilservices such as preventing contraband, illegal immigration,
drug traffickingand other aspects involvedin border control,will necessarilyrequire
that thegovernmental agents transportedin itcarryprotective equipment. If not,how
can they be expectedto perform these tasks? No fiscalpolice in theworld can achieve
this only through requests or verbal suggestions.
235 Annexcs,Vol2,Annex 21, 197 Ong~nalSpsn~sh:"Que en cualn'uSanJuan 10sderechosconvcnc~onales
dc Costa Rica son en ciertu aspectomcnorcsque 10scorrespondienteadl CostaRicano puedepor
cjernplo,surescomenle connsvcs de.guerra,comosi puedchacerloN~caragua.dcscguro,pempor otrapane,
sonmayorcsque10sdeuna meracopropiedsdporque Insbacostamcensesasimercantccomofiscalesen la
zonaen quelansvcgacihnes cornfin,tienenllbrecursocntodocl riy,a lo anchoy hbreacceso,cxcnta
de impuestos,a cualquierlugarde la riberanicaragiiense.
236 Annexes,Vo2,Anncx 21, 220.Or~g~nlpanish "El conceptode q10derechusdenavegacidnotorgadas a
CostRicaen elrioSanJuan no se extiendena budeeguerra,sino slmplernaemhrcacianes para fincs
fucalcydcrcnslvo~:interpretaci6nque edcsvlrthla doctriexpucstsobre el dominiouqut: a Cosla
Ricacorrespondeen gran pane deSilnJuan, porquc la navegacibncon bdc guerradcrnas dc poder
construir ucausade intranquilidad,tmpluna funcibpmpladcl sobcranoterr~t"nalNote that CostaRica is not making a capricious interpretation ofthe Treaty or the
Award, butis onlydefending a rightthattheyguarantee:navigating withfiscal service
vessels which, as it was understoodby Nicaragua duringthe time of the Award,were
vesselsthat carriedarms. Of course, we aredealingherewith lightservicearms that
aredulyregistered andwhichat nomoment,not eventoday,may injureorthreatenthe
sovereigntyor securityof Nicaragua.
Sincethe late 19thcentury,Costa Rica organizeditsfiscalguards at theborderregion
with Nicaragua. One of its taskswas toreconnoitre,at least once a week, the lower
partof the San Juan in order to fulfil its duties. Surveillance was performed by
personnel with service arms. Nicaragua not only did not protest against the
surveillanceactivitiesby Costa RicanPolice,but,as is confirmed in many documents
from the period and from recentyears, in variousopportunitiesits border authorities
performed coordinated tasks with CostaRican authorities. As a result, it can be
concluded that theClevelandAward, in the opinion of the Nicaragua government,
authorizedthenavigationof CostaRicanfiscal servicevessels,withcrew thatcarried
servicearms."237
4.94. In modern times, Costa Rica's right to protect its commercial
navigation on the San Juan with armed revenue service vessels, as confirmed
by the 1888 Cleveland Award, is performed by the National Coastguard
Service, the Fiscal Control Police, the Border Police and the Rural and Civil
Guards, navigating on Costa Rican official vesseIs. Appendix B of this
Memorial sets out the administrative position as ithas evolved.238
4.95. As attested by several witnesses, Costa Rican police-who were
referred to as the Respardo until the mid-1970s-regularly navigated the San
Juan with personnel openly carrying their serviceweapons. They even carried
outjoint tasks with the Nicaraguan armed forces.23"
4.96. To sum up, Costa Rica's perpetual right of free navigation with official
vessels and armed personnel in order to protect commerce stems from the
Treaty of Limits, as interpreted by the Cleveland Award and affirmed by the
1 916 Judgment.
237 Translatby Cow Rica.OEtVSer.G CP/ACTA12241flO8. March2000, 16 Vol6.Annex228
238 Of particrelevanarcthc RuralAssistanceGuardNo.4639 of 23 September1970:AnneVol6,
LaweNo. 7410of 26May 1494:AnneYo15,Annex226;andthLaw6ofCreationof the NaCoastguard,
ServiceLaw No. 8000o5 May2000 Annexes,Vol6, An230
238 AfidavrtufCarlosAlvaradSanchcz,27January2006:Annexes,Val4,Annex88,AfidaDanicSoto
Montcro,27 January2006: Annexe4,Annex89;Affidavitof LAngeJ~ronAngulo,28 January2006:
Annexes,Vol4, Annex90;AffiofJoseGranadoskMontoyaJanuary200Aj~nexe, ol4, Ann94, and
AffidavitRubenLaoHcrnjndez,17February2006:AnnexVol4Annex 103. E. Rights and obligations to safeguard (gunrda) the River and to
contribute to its defence, as well as defence of the common bays
4.97. According to article IV of the 1858 Treaty:
"The Bay of San Juan delNode, as well as the SalinasBay,shall be common toboth
Republics, and so, consequently, shall be their advantages, and the obligation to
defend them. Costa Ricashall also be obliged,for the part thatbelongs to her of the
banks of the San Juan River, andin the same terns as Nicaragua is by Treaties, to
contribute to thc security thereof in the same manner as the two Republics shall
contribute to its defence in case of aggression from abroad;and they shall do this as
effectivelyas shall be in their power."240
4.98. In itsE 916Judgment the CentralAmericanCourt of Justice recalledthe
existence of this Costa Rican right and the obligation to safeguard and defend
the Sm Juan:
"CostaRicapossesses undisputed titleto the right bankoftheriver,to thelandsituated
within her jurisdictional limits;she has joint ownershipin the ports of San Juan del
Norte and in SalinasBay; she possesses the contractual rightof perpetual navigation
in the river,beginningat a point threemiles below CastilloViejo,accompanied by the
full privilegeof transit and commerce,and Nicaragua is impressed withthe duty not
to interfere with navigation, but, on the contrary,to keep the course of the river open;
Costa Rica enjoys also the right to moor her vessels on both banks throughout the
entire zone in which navigation is common, and the rights involvedin guarding and
defense 'with allmeans within herreach."241
4.99. As a consequence of the existence of rights and obligations for both
parties in relation to the SanJuan, as well as their shared sovereignty over the
bays of SanJuan del Norte and Salinas, articleIV of the 1858Treaty of Limits
grants rights and imposes obligations on both States. Article IV distinguishes
240 'Thistranska1stakenfromBviiiand ForeignSfuleuper*sThe originaltext rasfollows "La Uahiade
Sm Juan del Norte, asi como la de Salinas,seran catnuncs a ambas Republlcas,y por consiguientelo serin sus
ventajay laohligacibn dc concua su dei'ensTambitn estarj obl~gadaCosta Rporla partque le
comspunde en{asmirgenes del riu de SanJuan, cn 10smismus tCrrntnosque por rratados lo esti Nicaragua,a
concumr a la guardadc el; del prupromod0quc concurririn lasdos Republlcasa su dcfcnsaen caso de agresibn
exterior, y lo con todla eficaque estuvierea su alcance":Annexe2, Annex7(d).
241 Annexes, Vol 2, Annex 21, 222 [ernpha~isaddcd). Text."Cocta Rlca ticne derechu indlsculado a
margenderecha dcl rio; al suelo codenimode sus limitesjun~dl~~lonal€~p;osce el condorniniu en 10s
puertotiSunJuan dcl None y en la Bahiade Salinas,cl dcrecho contractualde perpctuanavcgacibnen el riu,
empezandudesdeIresmillosabajodelCast~lluVlejo,cotnprcnsivode laarnpdetrinsityde comercio,
yquei~nponea N~caraguacl dcbcrde noentesannvcgaciAn,yel de teporel contnriexpcditoel curso
delrio, losde atrwasusdo<rlbcrasentoda la zunqucla navcgaclones comun,yque conuicrne~su
guc~ry defensa'con torlefiuaciqueestuvrcvaxuulca~ce'."three sets ofrights and obligations:(1) thedefenceof the common bays, (2)the
safeguarding of the San Juan and (3) the defence of the River in case of
aggression. Nicaragua arguesthat articleIV refers to the third obligation only,
and that even in such a case Costa Rica's defence of the River should be
accomplished exclusively from its own bank.242Although interrelated, these
are separate rights and obligations. The first two are permanent and
continuous: they have existedever since the entry into force of the 185 8Treaty.
The third is envisaged in case of aggression. In assimilating the case of
aggression to the other two, Nicaragua effectively rejects Costa Rica's rights
and obligations to defend the bay of San Juan del Norte and to safeguard the
San Juan where navigation is common.
4.100. In order to defend the Bay of San Juan del Norte, which is common to
both States, Costa Rica is entitled to navigate the Iower part of the San Juan
with the vessels and personnel necessary to perform that duty. This is
practically the only means for Costa Rica to defend the Bay. The Bay is now
effectively closed to the ocean and the only way to access the condominium is
by police vessels navigating the lower part of the San Juan.
4.101 . Thesafeguardingcbparda")of the SanJuan inthe stretchwhere Costa
Rica is a co-riparian also requires navigation. This activity is performed by
police posts located in the region and by public vessels that supply them.
According to the 1852 Dictionaly of the Spanish Academy the relevant
meanings of the term "'gwarda" corresponds to:
"corn. La persona que time a su cargo y cuidadola conservacion de alguna cosa.
Custos. I/ f. La accibn de guardar, conscwar o defender. Custodid/Observanciay
cumplimiento de alGn mandato, ley 6 estatuto.Observantia."243
Clearly, "gtlurda" is employed in article 1V of the 1858Treatyof Limits in the
sense of custody,i.e. "the action of safeguard, keeping ordefence".
242 SeeActingNicaraguanForegoMini, arlo<RobertoGurdiin,toCostaR~canForeignMinistcr,RohwtoRujas
Lwpez,Note No. MRE/98102638August1948Annexes,Vol3Annex51
243 LaAcademiaEspaiiolD~ccronande 10lengucu.\rellpor la Aradmio Espafiola(10th edn, Madnd
lrnprenlaNnc~on,852),357.EngltranslatbynCostRicn"corn. 'Ipersowho haunder itscareand
safekeepithcprcscrvalianof somethCustos//f The actionof sal'eke,onservinordef'end~ng.
Custody//Observanceandfultillmentof a tnnndate,laObservantl"4.102. The main threatsthatboth Nicaragua and Costa Rica faced during the
19th century came from the Caribbean through the San Juan. Plans for the
construction of the inter-oceanic canal andthe consequent increasein activity
in the border region of the San Juan required both countries to undertake the
duties expressed inarticle IV of the Treatyof Limits. During the20th centuq,
the obligation to safeguard the San Juan was understood-together with
actions against trafficking and smuggling-as the obligation to counter other
threats to the security of both countries, such as the illegal passage of
insurgentsor of weaponsfrom one countryto the other. Thisobligation was of
particular importanceinthe context of theeventsof 1948and 1955,when there
was tension betweenboth countries relatingto the activity of insurgentgroups
operating acrossborders. As aresult,the parties concluded the TreatyofArnity
of21February 1949and theAgreement pursuanttoArticle IVofthat Treatyof
9 January 1956.
4.103. Article 1of the 1956Agreement244commits both Nicaragua and Costa
Rica to facilitatand expedite transit on the SanJuan within the terms of the
1858Treaty of Limits and its interpretation in the Cleveland Award. In article
2 both countries specifically undertake to organize the surveillance of their
common borderas a meansto prevent weapons or armed groups from illegally
entering each other's territory.n the case of Costa Rica, this taskcould only
be performedthroughnavigation on the San Juan with service armsor through
police postsalong the Costa Ricanbank, which inturn would also implyarmed
police navigation forpurposes of re-supply and relief of personnel.
4.104. Until 14July 1998 thegeneral trend was one of collaboration between
Nicaraguan Armed Forces and Costa hcan Police in orderto perform thetasks
of safeguarding and defending the River. An example is theJointCommunique
issued by the Commander inChief and the Chief of the National Police of
Nicaragua and the Minister of Public Security and the Colonel of the Police
Force of Costa hca dated 8 September 1995(the Cuadra-Castro Agreement),
by which it was agreedthat:
"FIRST: In the interestof strengthening theNational Security,sovereignty and
independence of ourcountries,thNicaraguan Army andthe CostaRican PoliceForce
244Anncxes,Vol2,Annex24.will coordinate,as of this date, the operational plans that invour authoritiesand
allow forthe necessary developmentofjoint, parallel patrollingat theborder of both
countries,therebyjoining forces inhe battle againstthe illegal traffickingof persons,
vehicles, contraband of any nature and joint operations, following theexchange of
information and planning carrieh out by bothparties.
SECOND:As of this moment, thechiefs of the border unitsof both countries will
coordinate and cooperate moreclosely in planning and carrying out joint parallel
patrolling along our countries'ommon border, exchanging operative informationof
the common entities involved, with respecto all activities affecting the stabilityof the
terrestrial and aerial border zone related to drug trafficking, arms trafficking,
smuggling, rustling, naval piracy, illegali£ickiofpersons and thepresence and/or
passage of criminalgangs.""s
4.105. Costa Rica's navigation on the San Juan with public vessels carrying
policepersonnelwith its arms and ammunition took place both beforeandafter
this arrangement, withoutanyNicaraguan opposition,until 14July 1998, when
the first serious violation of this right was committed. A register of Costa
kca's police navigationshows that between August and December 1994there
were 33 returnjourneys on the River to Barra del Colorado, 107during 1995,
126in 1997and fiveinJune 1998. Registers alsoshowthat CostaRica'spolice
navigated the San Juan in the direction of Boca San Carlos twice in February
1995,18times in 1996, 40 times in 1991 and 23 times between January and
June 1998.246
4.106. To sum up, the tasks of custody and safeguarding of the San Juan on
those parts where the navigation is commonto both countries, as well as the
contribution to defence of the River and the common bay of San Juan del
Norte, can only be carried out by Costa Rica through navigation on the San
Juan. Its right to do so was recognised in the Cleveland Award, the 1916
Judgment of the CentralAmerican Court of Justice, the 1956Agreement, the
1995 Cuadra-Castro Agreement, the 1998 Cuadra-Lizano Joint Comrnuniquk
and in the conduct of both parties.
245Annexes,Yo12,Arl27x
246 SeeFirst Command, ayorHugEcp~nsow,ampiquiAtlantic Commandt,o Genera1EtheDordcrf
may be notedthatbef1994thereappearto have nolog books recordingnavigation:the practlccof
kceplnglog booksrecordingnavlgatlonseeminglyonly stortcdin 1994Se~ce ms carriedby CostRicm policeagmh mavigahngtheSm Jm forthe
pqoses of rehsupplyof Costficm police positsinSme Juanregion. F. Re-supply of and transport of personnel to and from border posts
4.107 The rights and obligationsto protect commerce,to safeguard the River,
and to defend itas well as the common bay of San Juan del Norte, have asa
corollary the right to use the River for re-supply and relief of personnel in
border posts chargedwith these duties. Nicaragua acknowledged this through
the agreement signed by the Nicaraguan Minister of Defence in Managua on
30July 1998.
4.108. Costa Rica has the right and the obligation to maintain border posts
along its bank of the San Juan. This obligation translates into the right of the
Costa Rican police to use the River as a means for relief of personnel and re-
supplypurposes, since even tothis day there are no other practicable meansto
achieveitby land,dueto the geographicalconfigurationofthe zone, itsclimate
and conditions and the lackof suitable roads, The right bank of the San Juan
constituting the boundary is approximately 150 kilometres in length and in
practice the River is the onlway that bank can be reached. From thepolice
posts it could take days on foot to reach other villages.
4.109. Since the perpetual right of free navigation includes navigation with
public armed vessels, and since the existence of the police posts at the border
is a requirement in order to fulfil Costa Rica's obligations concerning the
safeguardingand defence of the SanJuan andfalls within its rightto protect its
commerce upon it, there exists as a corollary a right to navigate with public
vessels carrying personnel, arms and ammunition forthe re-supply and relief
of personnel in those police posts.
4.110. Navigation on the San Juan with the purpose of re-supplyand reliefof
personnel in border posts onthe CostaRican bank is a purelypassive activity.
Unlike measures directed at protecting commerce, which could imply active
measures, it is confined to the mere transport of the necessary personnel,
weapons and ammunition.
4.111. Nicaragua's views with regard to-this right have been contradictory.
Until the first seriousbreach of Costa Rica'sright on 14July 1998,Nicaragua
had generally respectedit. At onepoint,what Nicaraguadisputed wasthe rightof the Costa Rican police personnel to navigate with their arms, not the
navigation itself. Nicaraguan President Arnoldo Alernin affirmed that: "Our
warning is that there is a right to circulate on the San Juan, but unarrned."z47
4.112. Subsequently Nicaragua changedits position and denied the existence
of any right of navigation for Costa Rican public vessels. President Alem6n
statedthat "the Costa RicanCivil Guard doesnot need tonavigate the SanJuan
River to supply the surveillance posts in the border with Nicaragua", adding
that "[tlhe Costa Rican police have facilities in their territory to carry out the
supply of their border posts through theland,without entering in the waters of
that waterway that belongs to Nicaragua."248
4.113. Nicaraguan Foreign Minister Eduardo Montealegre, speaking before
the Permanent Council of the Organization of American States on 8 March
2000, likewise stated that:
"Ncaragua, in honourof the historical tiesof friendshipandcooperationthatexist
betweenthe two countriesandGovernmentsh , as madeeveryeffort to cooperatein
resolvingtheallegedneedoftheCostaRicanstosupplyandrelievetheirborderposts
ontherightbankof theSanJuanRiverviatheaforementioned riveritself,despitethe
factthatCostaRicahaseasy accesstotheseareasby land andby numerousairplane
landing~trips."2~9
4.114. These statements were and remain untrue: Costa Ricadoes not possess
all-weather roads or numerous landing strips in the border area.
4.115. This right was exercised by Costa Rica withoutgreat difficulty (despite
occasional incidentsinthe period immediately prior to the Pact ofAmity of 21
March 1949andagain during the civil warinNicaragua during the 1980s)until
14 July 1998. Only two weeks later, Nicaragua was willing to revert to the
247 Cwta Rlcsntranslalion,origlexSpan~sh. Lallamaddeatencibdeparknliestracs quchaydcrechode
circulacsobreelRioSanJuan,peronoarmadosin"ProhibitionLiftcd"thcidnSan Jose17July1998.
AnnexesVul5,Annex 134.Seealso:"CostaKlcanGuardbarlncdframnavigatingoSanhJut Riverwith
arms", La Tribuna,Managua,17July 1: nncxes,Y5,Annex 133, "AlemhRe~teratSovereigntyover
thea1JuanRiver",LaPresnaLrhrSanJosc23July1948 AnnexesVol5,Annex135:"CostaKicanPrcsldcnt
suspcndvisit",NusvoDiurimManagua,24 July1998.Annexes,Vo5,Annex 137
248 "NicaraguAlemBnsuggeststo CivilCiunrtonavigateihe SanJuan",DeutsPrms~Agmrur,Managua,
4August1998:Annexes,Vol5.Annex 14h Seealso"PermiNav~gatAmled?", ENuevoDinno, Managua,
17March 2000 Annexes,VolAnnex IhO
249 Translal~byCostaRica.Annexes,Vol6,Annex229CoastPostDeltaCosb &carmnw themouthof theCOJM~~ fiver, J-21006.status qua ante, as set out inthe Cuadra-Lizano Joint Communique of 30July
1998.2550
4.116. A good summary of the legal situation was given by Nicaraguan
Minister of Defense Jaime Cuadsain the press conference held at theAugusto
Ctsar Sandino Airportin Managuaafter the signature of the Cuadra-Lizano
Joint Cornrnuniqu6of 30 July 1998:
"Whenfaced with questionsfrom Nicaraguan reporters Cuadra denied that the
agreement took awaysovereigntyfromthecountry.'Costa Rica has alwaystransited
onthe river andthey arenotbeing deniedthe right to travelon itand no oneis taking
awaythefactthatthe riverbelongs to Nicaragua.' ''251
4.117. In conclusion, the right to navigate the SanJuan with official vessels
carrying personnel and ammunitionfor the re-supply and relief of police posts
alongthe CostaRicanbank ofthe SanJuan isa corollaryof Costa Rica's rights
toprotectcommerce, to safeguard the river and to contribute to its defence, as
well as the defence of the common bay of San Juan del Norte. It was
recognised by the Cuadra-Lizano Joint Communique on 30 July 1998,which
(despite its repudiationby Nicaragua) isa valid and binding agreement.
G. Otherrelated rights
4.118. The navigational rights of Costa Rica recognized by the Treaty of
Limits arealso associatedwith other rightswhich arise from the same treaty or
from other international binding instruments and which also have
consequencesrelative to the navigation of the San Juan. These include:
(1) the right to land at any part of the banks of the River where
navigation is common;
(2) facilitationof trafficon the River; and
(3) a customary right to fish on its waters fur subsistence purposes
for residents living on the Costa Rican bank of the San Juan.
250 Annexes,V2,Annex28
251 CoslaRicantransla, rigitext InSpdn"AnteprcguntasdereporterosnicaraghensesCuaqueelgd
acuerdorestesobcraniaa su pais. 'Deningunamanera CostaRica sicrnprcnoy noselequita
a ellos el derechode navygno se noqu~ta nasotrosque riopcrtenccea Nicaragin"Border
agreementwitN~cas",uNucibn,SanJust31 July1998.Annexes,VoY5, Anncx 141.See also:"Agreement
tends tonfirm Ntcaragsovereigninthe SaJuan"La Prensa,Managu,Augus199XAnnexes,Vol5,
Annex 143.(1) The rightto land akany part of the Nicaraguan bank of the River
where navigation is common
4.119. According to article VI of the Treaty of Limits, Costa Rica's perpetual
right of freenavigation includesthe right to land at any part of theNicaraguan
bank of the San Juan where navigation is common. Nicaragua has an
equivalent right with regard to the Costa Rican bank, which has always been
respected.
4.120. The CenQalAmerican Court of Justice, in its 1916 Judgment, clearly
confirmed that in the zone where navigation is common, Costa Rica has
"permanent rights of free navigation ...and the right for her vesselsto moor at
all points along eitherbank, exempt from the impositionof any charges."252
(2) Facilitationof traffic on the River
4.12 1. In accordance with the Agreement pursuant toArticle IV of the 1949
Treaty of Amity,signedon 9 January 1956,Costa Rica and Nicaragua.. .
"shall collaborateto thebestof theirability inorderto carry outthose undertakings
and activitiewhich requireacommon effortby both Statesand are of mutual benefit
and, in particular,in order to facilitate anexpedite traffic on the PanAmerican
Highwayand on the San Juan River withinthe terms of theTreaty of 15April I858
and its interpretatiogiven by arbitration on22 March 1888,and alsoto facilitate
those transport serviceswhich may be provided to the territory of one Partyby
enterpriseswhich are nationals of thother."253
4.122. This provision is further evidence of the existence of the right of
navigation for the purpose of transport of passengers in accordance with the
Treaty of Limits and the Cleveland Award and constitutes an additional basis
for the improvement of the conditions for its exercise. By virtue of this
provision, each party is also obliged (and each has a corresponding right) to
make its best efforts and to collaborate with the other in order to facilitate
navigation on the San Juan as established in the Treaty of Limits and
interpretedby the ClevelandAwardandto facilitate transport servicesprovided
by enterprises of one party in the territory of the other,
252 Annexes,Vul2,Anne1214.
253CostsRica-N~carag956Agreement,articAnncxcs,Va2, Annex 244.123. Article 1 of the 1856 Agreement puts the Pan American Highway,
which traverses Costa Rican and Nicaraguan territory, on the same footing as
the San Juan,which is contiguous to the border between the two States. Both
have in common the fact of being important means of communication within
and between both countries. Clearly, the 1956 Agreement imposes an
autonomous obligationof best efforts in order to facilitate transport in the San
Juan on both parties, which necessarily include navigation by Costa Rican
enterprises of transport.
(3) Customary right to fish in favour of residents of the Costa Rican
bank
4.124. In addition, residents on the Costa Rican bank have always fished the
waters of the San Juan for purposes of subsistence. The fact that they do so is
entlrely unsurprising. As this Court said in the Kasikili/Se Ilandducase:
"Jt is, moreover, not uncommon for theinhabitants of border regions in Africa to
traverse suchbordersfor purposesof agricultureand grazing,withoutraising concern
on the part of the authoritieson either side of theborder."*54
4.125. The Commission charged with determining the EritrealEthiopia
boundq dispute, after having decided that boundaries in rivers should be
determinedby referenceto the locationofthe main channel,clearlystated that:
"Regard shouldbe paid to the customary rightsof the local peopleto have accessto
the river."255
4.126. In some cases, customary rights of border populations have been
recognizedbytreaties, includingtheright to fish on rivers. For instance, article
9 of the Agreementbetween Great Britain and Belgium of 22 November 1934
concerning water rights on the boundary between Tanganyika and Rwanda-
Urundi providesthat:
"Any of the inhabitantsof the Tanganyika Territoryor of Ruanda-Urundishall be
permitted to navigate any river or stream forming the common boundary and take
254Kmikrh/SedudIrEn(BonwandNnrn~b ~C),Report1949p 1094(par74)
255 Er~trea-EthBoundarCornrn~ss~Dncr~iuR&.gclrdg~Errnltatof the Borbprwt.cnthe Srnle of
Eri~reandthe Fedelemuurat~RepuhhofEtl~iu~13rAprl2002,1ILM 1057, 11{par7.3).therefrom fish and aquatic plants and water for domestic purposes and for any
purposesconfirming with their customaryrights."256
4.127. Customaryrightshavealsobeenexpressly recognized incases inwhich
the boundary delimitation entirely lefta river to one of the neighbours. The
Protocol concludedbetweenGreat Britain and France on 1July 1912provides
in article 8:
"In thepart of the Moa includedbetween cairnsXVand XVI theriverand theislands
belong entirelyto France. The inhabitants of the two banks have, however, equal
rights of fishing in tpart."ZS7
4.128. The customary rightof fishingofthe residents of the Costa Ricanbank
of the San Juan consists of catching fish from the bank and fromboats, using
in some cases nets of reduced dimensions. This activity is performed for
subsistence purposes,essentially for family consumption. It has been carried
on for as long as the region has been inhabited. Indeed, this practice entirely
comespondswith the first regime of the SanJuan ever applied. As mentioned,
the Royal Ordinance of 29 November 1540 determined that fishing on the
River would be common.2s8The right of fishingof the residents of the Costa
Ricanbank of the San Juan for subsistence purposeshas been respected by
Nicaragua until very recently, when-after the institution of these
proceedings-it began toprevent the ripasians from engaging init.
H. Conclusions
4.129. Tosummarise, the following conclusionsmay be drawn:
(1) Costa Ricahas a conventional perpetual right of free navigation over
theportionofthe SanJuan where it isa riparian State, andis entitled to
exercisethis right without restrictions or interference.
(2) This right includes in particular the rightof navigation for thepurposes
of commerce, its vesselshaving the power to land indiscriminately on
256Agreement regardWaterRights on thc BoundarybeTanganyikaand Ruanda-Uru,ondon, 22
November1934,90LNTS 106.
2579MartensNRG(3rd805.
25RSeeparagra2.08. the Nicaraguan side of the River where the navigation is common,
without being subject to charges of any kind or duties, unless levied by
mutual consent of both Governments. It includes:
(I) the right offree navigation for communication;
the right offree navigation for transportation of goods; and
(ii)
(iii) the right of free navigation for the transportation of persons,
including tourism
(3) This right also includes the right of navigation with the following
purposes:
(i) protection of commerce and of revenue control;
(ii) safeguarding or custody of the San Juan;
(iii) defence of the common bay of San Juan del Norte; and
(iv) as a corollary of these purposes, re-supplyand personnel relief at
border posts.
(4) Residents of the Costa Rican bank of the San Juan are entitled to
perform their customary right tofish, both from that bank and within
the waters of the San Juan along that bank,for subsistence purposes.
Costa Rica is also entitled to see Nicaragua make its best efforts and
(5)
collaboratewith Costa Rica inorderto facilitate the traffic on the §an
Juan to facilitate transport services provided by enterprises of Costa
Rica in the territory of Nicaragua, includingthe waters of the San Juan. Chapter 5
Nicaragua'sbreaches of Costa Rica's rights
A. Introduction
5.01. It was in the context ofthe Nicaraguan wa(1980- 1989)that Nicaragua
began to challenge Costa kca's navigational and related rights on the San
Juan. Initially these challenges were sought to be justified as temporary
measures based on national security requirements. En 1994, however,
Nicaragua started shifting its position, reaching a point where today it
effectivelydeniesmost of Costa Rica'srights.
5.02. In this Chapter, Costa Rica will particularise the different breaches
committed by Nicaragua of specific aspects of the navigational and related
rights of the Riverappertaining to CostaRica.
5-03. The present Chapter is in four main parts.
SectionB deals with breaches of Costa Rica'srights of perpetual and
free navigation. Subsection (I) deals with Nicaragua's
conduct in requiring Costa Rican vessels to land on the
Nicaraguan bank of the River and to pay for a so-called
"departure clearance certificate" (deuecho de zarpe).
Subsection (23discusses Nicaragua's conduct in imposing
other charges on Costa Rican vessels navigating the River.
Subsection (3) addresses Nicaragua's conductin requiring
Costa &cans and foreigners travelling on Costa Rican
vesselsto carrya passportand to obtain a Nicaraguan visa.
Subsection (4) discusses Nicaragua's conduct in imposing
timetables on Costa Rican navigation on the River.
Subsection (5) turns to the searches conducted by
Nicaraguan officialsof Costa Ricans and foreigners
travellingon Costa Rican vessels and of the vessels
themselves. Subsection (6) addresses Nicaragua's conduct
in requiring Costa Rican vessels to cany the Nicaraguan
flag whilst navigatingthe River.
SectionCturns to breachesof Costa Rica'sright of navigation for the
purposes of commerce (con objetos de comercio).
Subsection (1) addresses breaches regarding communication. Subsection (2) discusses breaches
concerning the transportation of goods and persons,
including tourism.
Section D deals with breaches of Costa Rica's right of protection of
commerce, its rightand obligation to safeguard and defend
the Riverand the commonbay of San Juan del Norte and its
right of navigation of its agents for purposes of suppand
relief of the police posts along the Costa Rican bank of the
River.
Section E deals with breachesof other related rightof Costa Rica.
B. Breachesof CostaRica's rightsof perpetual and free navigation
5.04. In Chapter 4, Costa Rica set out the scope of its rights of perpetual and
free navigation. These are categorical rights deriving in the first place from
articleVI of the Treaty of Limits, which in terms grants Costa Rica an
unrestricted rightof'navigationfor the purpose of commerce, includitn hg
most ample faculty of transit and commerce.
5.05. Despite the clear wordingof the Treatyof Limits and its authoritative
interpretationby the ClevelandAwardand later by the CentralAmerican Court
of Justice,intheperiod since 1994Nicaragua has engagei na series ofactions
which amount to a serious denial of Costa Rica'srights.
(1) The obligationto land atthe Nicaraguan bank and payment for a
"departure clearance certificate"
5.06. Pursuant to articleVI ofthe Treaty of Limitsthe vessels of Costa Rica
and Nicaragua have the righto land on eithersideofthe River. Nowhere is it
stipulated that Costa Rican vessels have an ohligatiolz to land on the
Nicaraguan bank and report tothe Nicaraguan authorities.
5.07. Before the civil war in Nicaragua started, the practice had been that
Costa Ricanboatmen who needed to navigate the SanJuanto transit from one
part of CostaRican territory to another,e.g. from Barra del Coloradoto Puerto
Viejode Sarapiqui or vice versa,wouldobtain a departure clearancecertificateissued by Costa Rican authorities (either in Barradel Colorado or Puerto Viejo
de Sarapiqui),andwould show itonrequest to theNicaraguan authorities when
enteringthe San Juan.259
5.08. In the early 1980s Nicaraguan army authorities started forcing Costa
Rican vessels to stop at Nicaraguan posts along the River and demanding
payment for their own "departure clearance certificate" ?very time the River
was used for transit, even when the Costa Rican vessels were travelling from
one part of Costa Ricanterritory to another. Accordingto several witnesses, at
that time the Nicaraguan Army membersjustified this chargeas a contribution
towards the purchase of food and supplies for their post.2h0
5.09. On 6 November 1980, in the context of the incident two days earlier
when Nicaraguan Armyofficials at Boca de Sarapiqui shot at a Costa Rican
vessel transporting personnel of the Ministry of Health, the Sandinista
Government announced that,to avoid conflict, everytime CostaRicans wished
to navigate the San Juan entering by Boca de Sarapiqui, they should report to
the Nicaraguan authorities.261
5.19. At that time,the Nicaraguan Foreign Minister was reported as stating:
"What happens - he said- is that Costa Ricanshavea rightof navigation on theSan
Juan according to the Caiias-Jerez Treaty. Bur because in that area there are
counterrevolutionary bands,we have asked the Costa Ricans to notifywhentheyare
going to cross the San Juan". Headdedthat: "it is not that we want to ignoretheir
rightto navigate the river,but simply thatthey notify us,as theHondurans do when
they navigate on the Coco River, so as to avoid accidents likethe one ofthe previous
Tuesday."2h2
5.11. However, on4 July 1982,Nicaraguan Army officials at the border post
at the mouth of the Sarapiqui River verbally informed boatmen from Swiss
Travel Services, a Costa Rican tour operator, about certain "new conditions"
25y AsexplarnedAmdavitoWiltonHodgsoHodgson,1Februar2006AnnexesVol4,Anncx46;anAffidavit
of RubtnLaoHemAndez17 Fcbruary2006 Annexes,Vol4, A103.
2h028 January 2006.Annexes,Vol4, Anncx92.ry2006.Annexes,VAnnex 93andArmandoPerlaPerez,
2hI"N~caraguconditionavlgntlonthwatcrs of SanJuanRlver",LNocihn,SanJosk,8 Novemb1980:
Annexes,Vol5, Ann1 I.
262 Ibld.5.14. While asking Nicaragua to cease the violations to Costa Rica's
navigational rights,the notealsoprotested the maintenanceand increase in the
charge for a departure clearance certificate that apparently had taken place
recently: this constituted "a tax that is excluded by article six of the Caiias-
Jerez Treatyl7.*67
5.15. The Nicaraguan Ambassador in Costa Rica respondedon 6 September
1982stating that:
"...the San Juan River is a river absolutely Nicaraguan,and on the base of this
unquestionable reality Nicaraguahas exercised, exercises, and will continue to
exercise all the attributes of its sovereignty,withoutany detriment to Costa Rica's
right to free navigation, that will continueto be respected by Nicaragua ... Free
navigationto the degree thatsuchrightis not used to harm the national interests,alter
the order and peace of the nation,attempt against Nicaragua's territoriailntegrity, or
to disrespect therightsthat international normsrecognize to the sovereignStatesn7'268
5.16. However, Nicaragua did acknowledge that the departureclearance
certificatewas being improperly imposed. The note said:
"Finally, regarding thepurported taxes that according to Your Excellency arebeing
chargedby our authoritiesin the zone,propermeasures have already been adoptedto
prohibit thatpractice,if it were true theywere being demanded, in accordance with
that stipulatedin the 1858Treaty."269
5.17. In the period after the end of the civil war,things seem to have returned
to normal. Thus Mr Ruben Lao Hernindez, a boatman on the River for more
than 60 years, states that
"Afterthe end of the Nicaraguan counterrevolution, around the year nineteen eighty
eight, navigation along the San Juan River returned to normal, and he did not
encounter any problems navigating, even at night."270
267 Ibid.
2SXVollnIlmeneNotc NoE.No.65182,6 September1982 AnneVol3,Annex45.FomlgnMinister,Fernando
269lbid
270Affidavitof Kubtn LauHemin17Februar20Oh.Anrrexe, ol4, Ann103.5.18. On the other hand, it appears that an occasion payments were
demanded. Thus Mr ArmandoPerlaPerez,a boat captainresident in Barra del
Colorado who has navigated the San Juan since the late 1970s, states:
"...when the war was over, navigationreturned back tonormal and ...they could
navigatewithoutrestrictionsand withoutmakingpaymentsfor touristor immigration
purposes,but ...theywere sometimeschargedadepartureclearancecertificateof one
thousand ~olones.""~
5.19. In March 2001 complaints were madeby Costa Ricans living inthe San
Juanarea that they were being charged US$25 for permission to travel on the
River. in consequence, the Costa Rican Deputy Minister of Foreign Affairs
sent a note to the Nicaraguan Minister of Foreign Affairs on 18 April 2001,
protesting the charge. The note stated:
"T address Your Excellency on the matter of a fee of US$25.00 (twenty five US
dollars)that theNicaraguanauthoritiescharged CostaRicans travelling along the San
JuanRiverduringthe pastmonthof March. Thisillegalchargetookplace when Costa
Ricans were navigatingthe San Juan River in vessels carrying the nationalflag. In
this respectwe are enclosingone of thereceiptsissuedby theNicaraguan authorities,
whichprovesthechargeof theabove-mentionedfee.
This fact constitutesa flagrant violationof the Republicof CostaRica'srights of free
navigation onthe San Juan River thatthe Caiias-JerezTreatyof 1858,the Cleveland
Awardof 1888and theCentralAmericanCourtjudgement of 1916grant the Republic
of CostaRica."272
Nicaragua did not respond ta this note.
5.20. In a notarial deed of 5 May 2001,273it isrecorded how a Costa Rican
boatman was charged the amount of US$25at the Boca Sarapiqui Post when
entering the San Juan on the way from PuertoViejo de Sarapiqui to Barra del
Colorado, despite the fact that the purpose of hisjourney was comrnercial.274
271 AffidavitofAmanda Pcrla PCrcz,28 2006:Annexes,V4,Annex92.
272CostaRlcanDeputFarcignMinistElayneWhyte,to NicaraguanForelgnMin, ranciXavleAyirre
Sacasa,NoteNo. DVM-1I1-18April 2001:Annexes,3, Anne70
273 Affidavitof 5M2001Annexe~,Vol4Annex83
274"Havingbeenaskeabouourdestinatandthepurposeothetrip,saidwc:were go10Ram delColorado
forcommercilurposesbecauwewcrclooking Tsomeproperto bu...Afteweconcludedthepayment
tthelmmigratic>onfficer,ayouwhoidentifiedh~mselfasSergeantManueoi tNicaraguaAmy
askcdMr. Ladetaiabout the velndabouourdcs~~nation.Tinformationwas wrronca document
callcd'DepartureCleardnceCertificate'.whichis IssuedbyArmyandwhich washandetoMr.He had to report at the next Nicaraguan Post located at Delta Colorado and
present the departure clearance certificate inorder to be allowedto continue his
journey.275 On his return to Puerto Viejo de Sarapiqui, he was once again
charged the amount of US$25 for thc departure clearance certificate when he
passed the Nicaraguan Post at Delta Colorado.276
5.2 1. On 8May2001Costa Ricanjournalists navigating the San Juanon their
way f om Puerto Viejo de Sarapiqui to the Colorado River reported that the
Nicaraguan Armywas chargingUS$25 to each Costa Rican vessel every time
it entered the San Juan. According to the press report, the boatman who was
transporting them was charged US$25 at the Nicaraguan Army post at Boca
Sarapiqui when entering the San Juan on the way to Delta Colorado (in Costa
Rica), and he was charged the same amount again on the returnjourney.277
5-22. On 9 May200 1,CostaRica againprotested the charge of the departure
clearance certificate, together with other related violations of Costa Rica's
navigational rights.278
Lao The consecutivnumber of that docl~mentwas zeru three zero five Once the docunlcnrwas filled out, Mr.
Lao palda fee of twenly-live Arnerlcarldollars payment, the Nicaraguan Army issued an aficial cash
receiptumbered zero lhree hundrcd and five":Affofa5 May 2001.Annexes, Va4,Anncx 83. For a copy
ofthls DepartureClearanCertificaand the recelpt thereof see AnnV016,Anncx 241 (a)
275 "We arrlvcd st thc postofthe NicarArmy,called ElDelta Post,at thc twelvehouthirtrnlnutes There
Mr.Lao got off thc vessel and climbed sumewoudlogs thePost booth, ~vhcrean officer of the Nlciragum
Army asked hlm to shaw tllc 'Departure ClearanceCerlilicale', to which Mr. Lao complied. Afterthe certificate
was ctleckedhe wasautl~orizedenterthc mouthor4hcColorado R~ver11Costa Rican territoOnce unthe
Colorado Riverwe cloppedntthc Costa Rican Border t'ollce pust, kasDella Costa R~caPostwiththe
purpcneoF1r)okingat Ihcpropertyof the areaand requesting inlormation ahoutthc salc of propertyin Costa Rlcan
~errl~ory"Dccd o5 May 2001:Annexes,Vol 4,Annex 83.
276"At thlrleen hours and thirty minutes, wemouth ofthe Colorado Rlvtobegin our return toward Puerlo
V~qo de Sarapiqui. There we were alsr~wqilired tatthc so-called El Delta Post of the NicAmy,uan
and we had to request authonralion of thc Army officers to be able tu contlnue our course on thc San Juan River.
AfterahklngMr Lao information aboutthe vesseland clurfinaldesl~nat~onawereplied thatitwas Puertn
Viejo de Sarapiqui, the officer wrote the ~nfonnatlonart the so-called 'Departure Clearance Cerlilicalc', and
instructedMr Lao to pay agmnthe amount of twenty-five American doordertoauthorize thc navigation.
Mr Lao pald the above amount and the aforernentioncd "Departure Clearance Ccrtificale" was handed to hlm.
Thlb documentwaq numbcrcd zero four zero four aitindicated the paymenr of the hventy-five American
dollars. MI Lawas notgiven any oficlal cash recelpt by theNlcataguan Anny as thc oficcr said thatthey had
no rcccipts."ffidavit of 5 Ma2001. Anncxcs, Vol4, Annex 83.For a copyof'thls Departure Clcarancc
Cerlificatc scc A~mcxes.Vol6,Ann241(b)
277"Nica? insist on chnrg~, a h'acfbo,$an Josk8,May200:Annexes, Vul5,Annex 169.
27RCosta RlcanForeignMinislcr, Robcrto Rojas Lbpez, to N~caragunnForclgn Minister,Francisco Xav~erAgulrre
Sacasa, Note Nu DM-207-2001,9May 2001:Annexes, Vul3,Annex 71,emphasis addcd.5.23. Nicaragua responded Costa Rica's notein thefollowing terms:
"Withregard to the motive for yourprotest,1wodd like to informyou that the sumof
US$25.00 being charged is, contrary to that expressed by Your Excellency, not for
navigatingthe SanJuan River,nor does it constitute any type of taxbut is, rather, the
amount charged for providing the departure clearance certificate service that both
Nicaraguan and foreignvessels in anyNicaraguanport, includingthose located in the
said river, are charged whentravellingto anothcr State.
I have the honour to informyou, dear Minister, that, in the interestsof strengthening
the fraternaltiesof friendship and cooperation that exist betweenour countries and
Governments, the President of the Republic has given instructions to extend the
departureclearancecertificateto CostaRicanvesselsfor free inBocade Sarapiquiand
the Delta of the San Juan Rivcr, as anact of courtesy, with the exception of vessels
related to tourist activities when they usc the Port of San Juan del Norte. The
vessels that receive the complimentarydeparture clearance certificate will only be
requiredto reportatthe NicaraguanAmy's Military Control Postsonthe lowercourse
of the SanJuan River."279
5.24. As can be seen, Nicaraguaattempted to justify the charging of the
departure clearance certificate notas a tax ar apayment for navigating the San
Juan but rather as an "amount charged for providing the departure clearance
certificatesewice that both Nicaraguan and foreign vessels in any Nicaraguan
port, including those located in the said river, are charged when travelling to
another State". The charge was justified as a payment for providing a
"departure clearance certificate service"whichdoesnotexistsincethereare no
port facilitieson the San Juan. It is mere consequence of Nicaragua forcing
Costa Ricanvessels to stop at itarmy posts along the river. The charge clearly
contradicts article VI of the Treaty of Limits.
5.25. With these considerations in mind, on 26 September 2001 the Costa
Rican Foreign Minister responded in the following terms:
"Secondly,the differenceshouldbe establishedbetween Costa Ricanvessels heading
specifically for Nicaraguan territory and Costa Ricanvessels that have to call ata
Nicaraguan port in order to comply with the requirement imposedby the Nicaraguan
779 NicaraguForeigMinister,FranciscoXAguirreSacastCosta RicaForeignMin~s, oberto Kojas
Lbpez,Nole NMREIDM-JUOIIXIDH IIOAugus2001 Annexes,V3,Aanex 72.authoritiesof reporting to them. In the lattercase, the departure clearance certificate
is illogical,since thesevesselsare travellingbetweenpoints in Costa Ricanterritory.
In short, the Nicaraguanauthorities deliberately imposea conditionto report, which
representsan economic advantage. Suchmeasuretotally violates the corresponding
provisions of theCaiias-JerezTreaty.
Thirdly, itis pleasingtoheartheHonourableGovernmentof Nicaragua's declarations
of good wilt. Wehope thatthisgoodwill shall contribute to correctly interpretingthe
provisionsof theCaiias-JerezTreaty, that,in itsArticle6, at the part that corresponds,
establishes: '...The vessels of both countries shall have the power to land
indiscriminatelyon eithersideof the riverat theportion thereofwherethe navigation
is common;and no chargesof any kind, or duties,shall be collected unless when
leviedby mutual consentof both Governments'. This aspect is rclatedto that of the
previous point in the scnse that one may pose the qucstion: 'Which isthe service
rendered corresponding to the departureclearancecertificate'lfl28o
5.26. Despite Costa Rica's protests, Nicaragua has maintained the
requirement of a departure clearance certificate for all Costa Rican vessels
navigating the San Juan, regardless of whether theyare transiting from one part
of Costa Rican territory to another or whether the vessel'sfinal destination is
within Nicaragua. It is charged together with the immigration fees that are
described inthe next section.~~l
5.27. The costof the departure clearance certificate has varied with time. For
example, in April 2000 a charge of 2000 colones for each Costa Rican vessel
was announced.282 InMay2001 it was reported and proven that the chargewas
of US$25,283 while in May 2002the cost of the departure clearance certificate
was reported by the press to be 1000colones.284 By 2003, the press reported
28U CostaRican ForclgnMinister, RobertoRujas,lo Nlcaragnan Forcign Minister, FranclsSacasa,r Agu~rre
Notc No. UM-355-200216,September 2001: Anncxcs,Vol3,Annex 73
281 "N~caraguanGovcrnmcrztchar1500 culunetoeachCostaRrcanwho navigateinthe Sin Juan foshort
whileDrurioLaE.r~m,SanJostI1Apr112000:hnncxcs, 5,Annex 162 Seealco"N~casinslstoncharging",
LrNocidrs,San JostX May 2001: Anncxcs, Vol 5, Ann154,"Ne~ghhoursof thc San Juan Kiver feel
defenceless",NncrtinSan Jos22 June 2002Annexes,Vrll5Anncx 177;"A river of cand fees", La
N(~ctdn,San Jo14May 21111Anncxcs,Val 5,Annex 179,and"Costa Rican vcssels will bearthe N~caraguan
flag", Lo Pvcnsa,Managua, 17Oc21)05An~~cxes, ol5,Annex 186.
282"Nicaraguan Government charges 1500colones to each Costa Rlcm whonavignlcs in thc San Juan for a short
while"DiunoLo Extr(, anJosk, I1Apr~l2D0PAnncxcs,Vol5,Annex 162
283 Scc thcAffidavitof 5 May 2001 Anncxcs, Vol4, Annex 8oFreceiplInAnncxcs, Yo16, Annexes 241
(aand (b); and 'Wlcaslonlcharging",Nocidn,SanJoae, 8 Ma2001: AnnexeVol 5Anncx 165
284 "Nclghhuursof'San Juan RiverfeeldefencelLrrNncirjSanJose22 June 2002 AnnexesVnl5,Anrlcx
177.that the cost was raised from 2000 to 4000 colones (approximately US$4to
US$8).285 Morerecently and more consistently, it hasbeen fixed at US$5.28"
5.28. Additionally,not only hasthe cost of the departure clearance certificate
varied over time,but apparently it varies from post to post: currently itmay be
US$5or $10. As canbe seenfrom the two receipts(shownopposite) given by
Nicaraguan Army Officers dated 23 June 2096, US$5 was charged as a
departure clearance certificateat the ArmyPost located in Boca Sarapiqui, but
at the Armypost of San Juan del Norte the charge imposed was US$lO.287
(2) Othercharges
5.29. Notwithstanding article VI of the Treaty of Limits, Nicaragua has
argued that, because Costa Rican vessels navigating the San Juan in transit
from one part of Costa Rica to another are entering Nicaraguan territorqr,all
passengers are required to pay immigration charges.
5.30. In the context of the incident which occurred on the San Juan on 4
November 1980,~8~ Costa Rican residents of the border region reported that
Nicaraguan officialshadbegan demanding a payment of $7 (seven colones, the
Costa Rican currency, approximately US$] at that time) for each quintal (i,e.
100pounds) ofbeansandcorn being transportedby Costa Riean vessels on the
San Juan. They also reported that Nicaraguan Army officials were forcing
them to land on the Nicaraguan bank to pay that fee.28Vhe Nicaraguan
ForeignMinister stated that he was not aware of such chargeszgQ a,d they were
suspended immediately.
Ig5 "Ariverof calm fees"LaATcrcidn,n Iosi, 14May200AnnexesVol5, Annex174
286"CostaRun vessclwill bear theNicaraguanflag",La Prensa,Managua, 17 October2005: Annexes,Vol 5,
Annex186.
287 SeeAnnexes,Yo1h,Annexes241(c)and(d)
288NicaraguanArmyofficialsshot at a Costa Klcan vessel transporting personnuefl the Ministlyof Health(see
paragraph5.95).
2X9 "Sandinisguards attackCostsRicans",I.aNS,anJasC6,November1480:AnnexeVol5,Annex 110.
290 Accordingto theCosta Rlcanprcssrc"oForeign M~lnlsr'Escotosaid in our cothathewas not
marc that the Nicaraguansouthcrn border ashcrchaglng$7 pequintaofcornorbeansthatlcave
CustaKicathroutheSanJuanRiverandthathey(theCostaRicanarforcedtogoto tN~cardguanborder
tcancelthafee"See"ForeigAffairsMinistersaysthatthe Cabs-JerezTreaty1sunques",Nucibn,L
9 Novcmber1980 AnnexesVol5,Annex 112 REt'lfBUENIUHA~I~A
CU~RZ NAAV~~,-EJERCITODE NICARAGUA
baby Inn
FIa dcl quc'&Tw'a
'cEPOnlrlhA LIB ,VICARAITI~A
FZTEKZA NAVAL - EJERCITO01.:NICARAGUA
Recibo Qficial de Caja N? 7473
Tworeceipts for"international deparclearance", bothdated23 June 2006
andgiventothesame boatman: onefor navigating from Boca Sarapiqto
SanJuan del Norte (US$5) and the otherfrom SanJuan delNorto Boca
Sarapiq UiS$10).5.3 1. This remained the situation until early March 1994, when Nicaragua
unilaterally announced that immigration controls wouldbe imposed on Costa
Rican tourism transitingon the SanJuan, in addition to the charge of US$5 for
a tourism card.291
5.32. On 6 March 1994, following an incident in which a Costa Rican
government official and his companions were shot atby the NicaraguanArmy,
it was reported that US$5 was being charged indiscriminatelyto Costa Ricans
for navigating the San Juan.292
5.33. TheCosta Rican Foreign Ministerdiscussed both the shooting incident
and the charge of US$5 for navigation on the River with his Nicaraguan
counterpart. The Nicaraguan Minister of Foreign Affairs informed him that
"the fee of the US$5isonly in force on the Nicaraguan bank."293 According to
a Nicaraguan pressnote, the charge of US$5 was only charged to the tourists
when they navigated beyond the area where Costa Rica has free navigation.294
However, in practice this distinction has not been observed and the tourist cad
was charged to all persons travelling in Costa Rican vessels on the River.295
5.34.Ateam ofjournalists visitedthe area 20 verify the situationand reported
that, in effect, all persons navigatingon Costa Rican vessels were being forced
to dock on the Nicaraguan bank and were charged US$5, As they reported it,
failure to do so entailed security risks, since the Nicaraguan army officials
carriedAK-47 guns.2'6
"Conflictwiththc Nicamguansdutotourismonthe Sin Juan,uNwrdn, SnnJosk5 March 1994Anncxcs,
Vol 5Annex 123.
292 The CostaRlcan Govcnzmenrofflciahlcompanlun sere on rnlssltodr\tnbuteschoolsuppl~cCosta
RicanschoolatBarn dclColorado. Ontheirrettrlp they weresa1m the Delta Colororea andforccd
tolandontheNicaraguanbank.Sec "Ticoweremach~ne-gunnedattheSanJuanR~ver"Lu Nu~idnS,anJosC.
SMilrch1994 Annexes,Vo5,Anncx 124.
293 Ibid.
294"ProblemwithTicossolved"LaPwncu, Managua,8March1994:Annexes,Vol5,Annex 125.
295 "Tlcuwercmachinc-guna nthcSanJuanRiver",LaNacidn,SunJost,8 March 1994.Annexes,V5Anncx
124.
"_5tonavigatonthe 5anJuan~iver",LNacidn,SdnJosC,10March 1994Antrexcs.ol5, Annex 126.5 -35.The Costa Rican Minister of ForeignAffairsprotested to Nicaragua on
15March 1994,requesting that the"tollthat was beingchargedto Costa Ricans
while navigating the San Juan River stop being charged."297
5.36. Nicaragua repliedto the note of protest, stating:
"the chargefortheTouristCard isnota transit toll, buta measureof migratory control.
In any case,we must remember thatCostaRica'sperpetualright of free navigation, in
the portionindicatedin the Treaty [ofLimits] doesnot includetourism,and much less
the free access to Nicaragua's sovereign territoryto foreign citizens who travelin
Costa Rican vessels that navigate on said River, "for the purpose of transporting
tourists*',as yourown note states."*98
5.37. The note further added that:
"The Cafias-Jerez Treaty does not limit in any way the exercise of Nicaragua's
Sovereign Rights to establishthe necessarymigratoryand securitycontrols,along and
across the whole San Juan... In conformity with these sovereign rights the
Government of Nicaragua has established Migratory ControlPosts to regulate the
payment of the entryvisa of citizensof those countries that, accordingto the Treaties
in force,are not exemptedfromthis req~irement."~99
5.38. Inthisresponse, although the NicaraguanGovernment argued that inits
view tourism does not qualify as a commercial activity, it acknowledged that
Costa Rican citizens could not be charged for navigating the San Juan.
Beginning on 22 March 1994, the Nicaraguan Government modified the
measure, so that the tourjst card would only be charged to passengers who are
not Costa Rican citizens. Costa Rica nevertheless "rejected such measure,
since it considered that it violates her right of free navigation in the river with
national flagvessels, established in the Caiias-JerezTreaty of Limits."3oo
297"CostaRicaDemandsNicaraguanstn w~thdchargeon thc SJuan"LaReplibhcu,SanJos,7March 1994:
Annexes, Vol A~zncx128
2QgNicaraguanForeignMinistEnlcstLealto CostRicanForeigMlnlslerRemd NiehauQuesada,Nole No
340284,Z1March 1994Annexes,Val3Annex 48.
299lbid.
309 "Mlchausrulout arbitratiLaNocidn, SanJosk20 April1994 Anncxcs, Yo5, Anne130. See slso
'*l'orcMinisters will anthetransotbthS.hnJuanRiverLaNacibn,SsnJosC,13Apri1894.Anncxcs,
Val 5Anncx 1295.39. Despite its previous statements, Nicaragua started charging Costa
Ricans for the US$5 "tourist card". Bymid-1999, and in the context of the
tensionbetweenboth Statesthat resulted from Nicaragua's prohibitionof Costa
Rican police navigation, the Nicaraguan Government ordered that all
passengers being transported on Costa Rican vessels be charged $1500,
approximately US$5 at the time, for navigatingthe River, together with 62000
for the departure clearance certificate for each vesse\.3*] This measure was
applied both to other foreigners and to Costa Ricans, including those who
owned property on Costa Rican territory adjacent to the San Juan and had to
use the River to access their property.302
5.40. On 8 May 2001 the Costa Rican press reported that Nicaraguan
authorities were chargingUS$5 for every Costa Rican who navigated the San
Juan. Those charges were demanded each time the vessels entered the San
Juan,both on their way from Puerto Viejode Sarapiqui to Delta Colorado and
on their return journey.303
5.41. The charge of US$5forthe tourist card was recorded in a notarial deed
on 5May 200 1.304 The testimony of Mr Norman Scott Chinchilla was that:
"he himself, who owns property bordering on Nicaragua, is forced to pay the
corresponding touristcharge, in spite of not being a tourist himself, which deprives
him from freely exercising the commercial and agricultural activities on his
property."305
301 "NicaraguanGovcrnmcntchargcs 1500colonesto each CostaK~canwho nainthe San Juan fushort
whllc"DioriuLrrL.r/r11April 2000:Annexes,Vol5,Annex 162
302"San JuanCalmand Uncasincss",La Nncrdn,SanJosJuly1999:Annexes,Vul5, Annex 155.
303"Nica~inslst on charg~n,o Nuci6t1,San JosC,8 May 2001:Annexes,5,Annex 169 See also "An
lnfuriatlnggamc",La Nar4May,2001:Annexes,Vol5,Annex170.
304"Once we wereon thc lctt marginof thc river,wthe vessel and climbedsomewood logsup to the post
of thc Nicaraguan authorities. Once at the post, we ldentlfagentleman whocla~nitobe an
lmmigratlonoficcr. Havingbeen asked about our destinationandtufthe trlp,saidthat we were
goingtoBarradelColoradoforcommercialpurposes because wewerelook~ngforsomeprbuy.tHegave
ussomeimmlgratinnforms andaskcdus to paythe amountof fiveAmericandollars, whichwas a fee established
by the Nlcarabwanauthunt~ealsogaveusarecelpinumbered withthc D Scrles.nurnbcrtfourthrcc
six three,forthecorresponding paymentmadeby Mr.Alvaradoandiheundersigned,indireceipthaie
thepayrnetcov~rcd"two TouristCardSeeAfidavit uf 5 May2001.Annexes,Vol4, Annex 83 For a copy
of thereceiofthe louristcardchargedto the two passcngcrsscc:Anncxcs,Vol6,Anncx 242 (a).
Affidaviof5May2001 :Annexcs,bl4, Anncx 83.5.42. On 9 May 2001 Costa Rica protested the charge for the tourist card,
together with other related violations of Costa Rica'snavigational rights.306
5.43. Nicaragua responded to Costa Rica's noteof protest in the following
terms:
"Finally, with regard to the US$5 the migration authorities charge each person
enteringNicaraguanterritory;allow me to inform you that the latteramountapplies to
allforeigners enteringthe country."3u7
5.44. On 26 September2001 the Costa Rican Foreign Minister respondedto
the Nicaraguan note of 3August 2001,insisting that the US$5 charge, as well
as the requirement that Costa Rican vessels call at Nicaraguan posts,
constituted violations of Costa Rica's right to free navigation.Jo8
5.45. Despite this protest, Nicaraguan authorities continued to charge all
Costa Ricans navigating theSan Juan US$5for the tourist card.
5.46. Beginning in2002,in addition to the US$5tourist card, theNicaraguan
Government began charging an additional US$2 for "immigration fees for
entering Nicaraguan territory". Accordingly, Costa Ricans and other nationals
who werc transported in Costa Rican vesselson the San Juan from one part of
Costa Ricato another had to pay US$T to be allowed such transit.309
5.47. At the beginning of May 2002, Nicaraguan authorities at the Boca de
Sarapiqui post once again raised the amount of the immigration fees by an
additional US$2, justified as '%nrnigration fees for exiting Nicaraguan
territory", making atotal of US$9 for each trip alongthe SanJuan. Initially the
additional payment of US$2 was only charged during weekends and on
'OhCosta RlcanForcignMlnlstcr,RubenoRojasLtoNicaraguForeigMinister,1:ranciscoXav~erAguirre
Sacasa,NntcNo. DM-207-2001,BMay21:AnncxesVol3,Annex71.
307 NicaraguanForeignMlnlster,FranclscuXavierAguirrc Sacasa,to CostaRicanForeignMlnlster,RobertoRolas
Lupcz, Note No MRUDM-JIlE8/081.3August200IAnnexes,Vo3,Annex72.
'08Sacasa,NuteNoDM-355-200126 Sep~enl2001,AnnexcsVol 3, Ann73.~nis, ranciscoXaAguine
'09"NicasraiscRivcrcharLahcrdn, SanJosk21 May2002 AnnexeVol5, Annex 174holidays; from Monday to Friday the charge was US$7. Subsequently,US$9
was charged at alltimes. These measures seriouslyaffected those engagedin
the commercial transportation of passengers, sincethe high costsdiscouraged
many to travel from Sarapiquito Barra del Colorado and Tortugero.310
5 -48. TheDirector ofNicaraguan Immigrationjustified the new immigration
charges explaining that "[ili is not that a new tax is being applied.. .what
happens is that the immigration fee fully established in Nicaraguan laws is
being complied with."311
5.49. In this context, on 21May 2002 the Costa Rican Embassy in Managua
formally requested that the Ministry of Foreign Affairs inform Costa Rica:
"How much are the Nicaraguan authorities charging Costa Rican vessels and
citizens for navigating the San Juan River in the sector where our country has
free navigation?"3]*
5.50. The Nicaraguan Ministry of Foreign Affairs responded on 29 May
2002:
"Withregardto themotivefor your HonourableEmbassy'sinquiry,theMinistrystates
that in those caseswhere Costa Ricans enter Nicaraguan territoryand navigate the
lower course of the San Juan River with purposes that differfrom those stipulatedin
the Jerez-Caiias Treaty,they must comply with the same requirements applied to all
pcrsons of foreign nationalitywho enter the countryvia any international migration
post, asstipulated inthe provisionsof the Regulations for theIssuing, Formatand Use
of the Special TouristCard published in the oficial dailyLa Guceta Number 153 of
16 August 1993 and in the Law that created the Nicaraguan Instituteof Tourism
published in the official dailyLa Gaceta Number 149 of 11August 1998, and the
Ministry of Governance AgreementNo. 001-94 of 15 March 1994 in which the
Migrationand Immigration Dutiesarc established.
Thc Ministryinforms the Embassythat theRepublicof Nicaragua faithfullycomplies
with its intcrnationalobligations and, consequently, respects the rightsof navigation
on the lower courseof the San Juan River cot7 objetos de cornerciogranted to Costa
Ricaunder the Jerez-CafiasTreatyand the ClevelandAward."3'3
3'0Ibld.
31 "lmrn~graticonfirmschargto T~cosoihSan Juan"Kl~VuevDrano,Managua,22 May 2U02:Annexes,
Vol 5Annex 175.
312 CostRicanEmbassyinNicaraguatoMinistrof Fure~gnAmirs of Nicaragua-Gc~zcralDirectI,at~nor
America,Note b'erbe o. FCR-079-5-2002.21 May2Annexes,Vol3,Anncx76.
3'3 NicaraguMin~strul'ForcigAffaiiDlrectolateof Suvcrcignly,TerritoryandIntlegalAfd~rsto
CostaRicslEmbassyinManagua,NoteVerbalc NMKEIDGSTAJllJ3510510 29, May2002:AnnexeYo13,
Annex 785.51. More recently, the document for which a charge of US$5 (shown
opposite) is made has been referred to as a "transit permit through the border
points" (''permisode trlinsifoen 10s puntos fmnterizos"), which is charged to
both boatmen and passengers.314
5.52. As can clearly be observed, Nicaragua sought to justify the charges
imposed on Costa Rican navigation on the River on the ground that this
navigation wasnot carried out "con objetosde comercio". But asdemonstrated
in Chapter 4, all the navigation that was subject to the charges is plainly
protected by the Treaty of Limits and by subsequent decisions which are
binding on Nicaragua.
5.53. Itremains the case that allpassengersand boatmen navigating onCosta
Rican vessels are being charged US$9, in clear violation of Costa Rica's right
of free navigation.315
(3) Visas andPassports
5.54. Nicaragua has imposeda requirement thatboth Costa Ricans as well as
other foreign nationals from couiltries that require a visa to enter Nicaragua
must carry their passports with a Nicaraguan visa while transitingthe San Juan
on Costa Rican vessels,even when travelling between different parts of Costa
Rican territoty. Ifthis requirement isnot compliedwith,Nicaragua refusesthe
right of navigation.
5.55. The first attempt to impose sucha restriction occurred on 6 June 1982,
when Nicaraguanarmy officialsrequested a mandatory visa for navigation on
the San Juan for a group of tourists who were being transported by the Costa
Rican company Swiss Travel Se~ices, from Barra del Colorado to Puerto
314Forcopiesof recctptssee Annexes,Vol6,Annexes243 (a)and(b).
l5SeeAffidavloFCilrlLaoJarqui,7 Janun~2,006:Annexes,Val4,Anncx84,Affidavitof CcovannyNavarro
Gorro,27 January2006:Annexe1704, AnncxR5;Affidavitof PabloGerardoIlernandczihrcla, 27 January
2005. AnnexcsVal 4Annex86;AffidavofSantosMartiAmeta Flores,27 January 2006. Annexe4,Vol
Annex 87;Affr~vitof MarvinHay-Gonmlez,28 January2006.AnnVul 4Annex91;AffidavofW~ndel
HodgsonHodgson,28Januar2006.Annexes,Vol4, AnnexAflidavol'nanlelKeeWlse, 28 Janu2006:
Anncxcs,Vr)4,Annex95;andAFfidavitWlltoHodgsunHodgson,1 February2005:Anncxcs,Vul4,Amex
86 Forcoplesof thereceiforpaymentothc $4 f"rnibmtorservicew,hichmustbe paxdInadditionto
thc$5TouristCard,scc:Annexes,Vul6,Anncxes245(a(b). Entry and Receipt
Eachperson navigatingin a Costa.Rican vessel on theSan Juan must pay
US$4 for a"migratoryclearanc (e"tryto and exitfromNicaragua)and
US$5 for a "transitpermit through border points".Viejo, Sarapiqui, both in Costa Rican territory.31f~ This event was duly
protested by Costa Rica's ForeignMinister.317
5.56. On 4 July 1982,Nicaraguan army oficials requested passports at the
Nicaraguan Armypost located in the outlet of the Sarapiqui River on the San
Juan for a group of tourists who were being transported by the Costa Rican
company Swiss Travel Services, from Barra del Colorado to Puerto Viejo,
Sarapiqui.31Wosta Rica'sForeignMinister also protestedthis event.3'9
5.57. Although Nicaragua didnot respondCosta Rica's notesof protest, for
the time beingthe incidents requestingvisas for the navigationon the San Juan
ceased.
5.58. ThereafterNicaragua did not request passportsandvisas for navigation
on the San Juan until October 2005, after Costa Rica instituted the present
proceedings.
5.59. Initially, as retaliation for CostaRica havingpresented the case before
the International Court of Justice and purportedly as a way of financing the
costs of the litigation, members of the Nicaraguan Congress threatened to
impose a tax of 35%on all Costa Rican imports,the so-called"Patriotic Tax".
Instead of imposingthetax, the Nicaraguan Government decided toimposeon
Costa Ricans a US$20 visa fee (plus US$5 for the relevant application form).
That the visa fee was in substitution for the Patriotic Tax was expressly
acknowledgedbyNicaragua's Foreign Minister:
"We haveto see what measurescan be takenbased on otherpoints of view so it is not
interpreted thatwe wantto punish the Court for having acceptedthe case. What we
could achieve with measures like this [the PatrioticTax] is to make the Court
hostile."'2"
31 MallageofSwissTnvelServices,ErnGamboa,to CostaRicanMlnlctePubllcSccuriry,Angel Edmundo
Solano7 June 1982:Annexes,VoAnnex223.
317Costa KicanForeiMln~htFernando VolloJirntnez,toNicaChargPd'Affaircsa.CostaRlcaOscar
RarnanTCllez.NoteNuD.M.133-8K2,unc1982 Annexes,Vul3,Ann4 1
318Managerof SwisTraveServices,EmilGamboa,to CustRicanDcputyForclgnMinister,EkhartPe11rs,
July1982:Annexes,Vol6,Anne225
319CostaR~canForeign MinisterF.ernandJirntnez,toNrcaraguanChargkd'hffatoCostaR~caOscar
KsmbnTCllez,NoteNo. M. E2h-82,16July 1982:Annexes,Vol3, 42nex
320"We canstopthc cns,lhn'uewDiariManagua,2October2005:Anncxcs,VolAnnex 184"Withsuch measure (the impositionof the Visa to Costa Ricans), considering that
some 100 thousand Costa Ricans enter Nicaraguan territoryeach year, the funds
necessary to allow Nicaragua to face the case presented in The Hague over the San
Juan Riverwouldbe obtained. At that moment, MinisterCaldera indicated that with
that measure Nicaraguawouldnot need to imposethe patriotictaxof 35 per centto
CostaRican products thatenter Nicaragua, an initiativethat was proposedby some
members of the National Assembly."321
5.60. In October 2005 local residents on the Costa Rican side were informed
by Nicaraguan officials that from 17 October 2005 any person, including
children, transiting on the San Juan would be required to show their
identification documents to the Nicaraguan a~thoritics.322 Subsequently the
Nicaraguan authorities warned local residents and boat owners that without a
passport and a Nicaraguan visa, they would notbc allowed to navigate the San
Juan.323
5.61. This admonition has been enforced, at least selectively. On 15
November 2005, a Nicaraguan Immigration official on the Boca de Sarapiqui
Army Post forbade navigation to a local boatman who was transporting two
European tourists from Puerto Viejo towards Tortuguero. The Nicaraguan
official demanded hispassport with the Nicaraguan visa:since the Costa Rican
boatman did not carry it he was prevented from continuing his journey to
Tortuguero, and could not complete the transportation service contracted with
his passengers.324 He was told that henceforth he would have to present his
passport with a Nicaraguan visa to be able to navigate the SanJuan or else he
"would not pass5'.325 According to this boatman's testimony,he was also
informed by the Nicaraguan authorities that a visa is onIy valid for a single
entry into the San Juan.3'"
321"T~coswill pay for a vlsa",EDm+-io.Managua19Octobe2005:Annexcs,\f3,Annex 188.
322"Nicaragucorlditipassingvf Costa Rican ves, aNoc~b,anJosi,16 Octobcr 200Annexes,Vo5,
Annex185
323"Nicaragudemandss VisaandPassport onRiver",aNacidrSnn Jose30 Octobe2(105Annexes,Vo5,
Annex 189.
324 "On Novembefifteenofthiyear.ourcolleaguePabluHernalzdczVarelawas headingfrornPuertuV~ejodc
Sarap~quo Tortugucmw~ihtwtuurists,andsincwas [lotcarryingpassporthcNicaraguanauthorit~cs
senth~mback,whichforcedhlmreturalongw~ththtourists.Mr.JnrgI.aJarquinaridMrSantusAmieta
Floreatu Costa KiForeigMinistr22 Novcmbsr2005AnnexesVol6, Annex238
325 AffidavitPablGerard" HerniltdczVarela,27January200hAnnVol4.Annex R6
326 lbld5.62. On 21 November 2005, another local Costa Rican boatman was
detainedfor approximatelytwo hoursby theNicaraguan authorities at the Boca
del Sarapiqui Amy post on the San Juan, when he was travelling from
Tortuguero towards Puerto Viejo, Sarapiqui. The Nicaraguan officials alleged
that the Costa Rican boatman was nut carrying his passport atthe time.327 In
order to continue with his commercial activityof transportation of passengers,
this boatman had no choice but to travel twice to Sm Josk to obtain a
Nicaraguan visa, at a cost of US$25 on each occasion, in addition to travel
costs and time spent.328A copy of the visa stamped in the boatman's passport
is shown in the followingpage.
5.63. Other witnesses have given their accounts of how Nicaraguan
authorities have demanded that they carry a Costa Rican passport with a
Nicaraguanvisa tobe allowed to navigate the San Juan, as well as evidence of
the resulting loss sufferedinrespect of their commercial activities.329
5.64. Until the filing of this Memorial, Nicaragua continues to impose the
requirement of a visa and a passport to navigate the SanJuan. This is a clear
violation of Costa Rica's right to free and perpetual navigation. Costa Rica
does not contest the right of Nicaragua to require a visa for any foreigner,
including Costa Ricans, to stay in Nicaragua's territory. However, CostaRica
contests the imposition of a visa whether as a requirement for navigating the
San Juan or for landing on the Nicaraguan bank. According to the Treaty of
Limits, Costa Ricans have the right to land on the Nicaraguan bank, just as
Nicaraguansdo on the Costa Ricanbank. This landing (without the purposeof
staying in Nicaraguan territory) isalso covered by article VI and no visa can be
required.
327 "Yeslerdaythc same thlng occurourcullcuguCarl<Lao Jarqu~n,whowas retunlifromTomguero to
PucrraVicjo de Sarapiqiii. I-notcarryintouristand at thc Post at thc mouth of the Sarapiqui, the
Nicaraguanauthoritiesretainedhim thetimcpcrlod of betweenan hour-and-a-halfand two hoursbecause
he was not cawingpdsupclbelng that. as wc sawas traveling to CRicanterrituryN.Mr. Jurge Lao
Jarquin anfvlrSantusArneiaFlores to Costa Rican I'orcign Mlnlstry, 22 2005.Annexes, Vol 6,
Annex 238
328 Affidavitof Carlos LaoJilrquin,27 January2006:Vol4,Annex 84.Copiesof thepaymentrece~ptsfur
each vlsa, as rvcllas af the visas themselves,are includedin:Anncxcs, Vol6,Anncx 244.
329 Afidavlt of GeuvannyNavarro Ga27oJanuary 2006:Annexes, 4,Annex 85,AfTrlavof Santos Mart~n
Arrleta Flores,28January2006 Annexes,Vol4, Anncx 87;Affidavitof Marvin Hay-GuJanuarZOO6
Anncxcs. Vol4,Annex 91, ACliddvitnf Armando Pcrla Pkrez. 28 January 2006: Annexes, Vu92, Annex
Affidavitof WinHodgson Hodgson,29 Januar20Dh Annexcs, Vo4,Annex 93Affidavivf DanlcReese
Wlsc29 January2006. Annexes,Vol4,Anne95.5.65. In this regard three points mustbe underlined. First,a regime of visas
cannot apply to a use of a river establishedby treaty as "free" without any
qualification. When Costa Ricans (or citizens of other countries on board
Costa Rican boats) navigating on the San Juan are exercising that right of
navigation, no visacan be required. Any such requirement would annul the
qualification of "free", establishing acondition that must be fulfilled in order
that the navigation be authorised, a condition that moreover has a significant
economic cost. Second, if such a condition could be imposed, the subsequent
denial of a visa would effectively render CostaRica's right of navigation void
of content: aright of free navigation is effectively deniedif iis made subject
to a discretionary precondition, such as the grant of a visa. Third, from a
practical perspective this requirement could effectively preventriparians from
using the SanJuan at all, since theywould need to use theRiver to travel to the
nearestNicaraguanConsulatein Costa Rica, something they would notbe able
to do since they do not have a visa in the first place. Moreover, the visa is
granted for a single entry only. Aperson who needs to use the San Juan every
day would in principle be required to obtain one visa each day, which (quite
apart fromthe cost) would be virtually impossiblefor anyperson living in the
region.
5.66. The financial burden imposed by the requirement to obtain a visa
should not be overlooked. A visa costsUS$25 for every entry on the River,in
addition to the expenses incurred for travelling to the nearest Nicaraguan
Consulate to obtain the visa. Thus,for a person who does not have the means
to pay for the visa and related costs, in practice navigation on the River is
impossible; itwould also be prohibitive when the transit ofentire families is
considered.
5.67. Inshort,Nicaragua not only requires consular authorisationto navigate
the River (which authorisationcan in principle be denied); it also requires that
the authorisation be paid for, further restraining the abilityto travel freely on
the San Juan. By these actions Nicaragua undermines the abilityof Costa Rica,
Costa Ricansand other nationals transitingto and fromCosta Rican territory to
effectively exercise the rightof perpetual and free navigation. VisDec 05
2..
Entry anExlscal28-12-2005
Visa granted for a single entry to Nicaragua, valid for 30 days, required for
Costa Rican citizens to be permitted to navigate the SanJuan. A boatman's
passportstamped with an entry and exit seal on the same dayat Sarapiqui by
Nicaraguan authorities. The passport holder was required to obtain a new
visa in order to navigate in the SanJuan again.(4) Timetables
5.68. The imposition of navigational timetables constitutes a restriction that
inevitably violates Costa Rica's perpetual rights of free navigation. None of
the applicable instruments authorise Nicaragua to impose timetables or time
limits on Costa Rican navigation of the River.
5.69. Before the civil war in Nicaragua that followed the Sandinista
revolution in 1979,no timetables were imposed on Costa Rican navigation.33"
It was in the context of the Nicaraguan civil war that Nicaragua first imposed
timetables.
5.70. In March 1983the Nicaraguanarmy prohibited navigationon the San
Juan after 6pm. TheNicaraguan officials affirmedthat themeasure was taken
for national security reasons due to the possibility of a counter-revolutionary
attack.33This action was protested by Costa Rica on 8 March 1983 as a
violation of the Treaty of Lirnits.332
5.71. The impact of such restrictions on individuals using the River is
illustrated in the statement of Marvin Hay Gonzhlez:
"according to hisexperience, itwas dangerous tonavigatethe San Juan River around
the eighties due to the armed conflict inNicaragua.. . [O]nseveral occasions,the
Nicaraguan Army forced him to stop the vessel in theafternoon,and he recalls that
they pointed machine guns at him as he was told that he was not allowed to navigate
the river, and that hc had to sleep overnight on his vesselin ordcr to continue his
journey the nextday.. . mavigation] returned to normal after the war."333
5.72. As Marvin Hay Gonzklezstated in his affidavit,afterthe end ofthe war
in Nicaragua navigation returned to normal. This is confirmed by boatman
Ruben Lao who stated that:
330Severalboatmen wlth many ycars of nathe SinJuan have conf m~cdtwas during the times when
San Juan were imposed. SeeAfidofMarvinHaytionzalez, 28 January2006 AnneVol 4Annex 91;
Afidnvlt of WlltonHadgsonI-Iodgson,I F'2006Anncxcs,Va4,Annex 96, and AfidofRubenLao
HernindczhFcbnlaty 2006:AnnexVol4, Annex103
33tAnnex 118nAffairsMin~stryw~llprotestagaln toLn~Vac~dS,anJuhC7 March 19R3.Annexcs,V5,
3j2 CostaRlcunFtxelgn Minister, FernandoJlrni.nto NtcaraguanAmbassadotoCosta Kica, Kogelio
RamikzMercado,NoteNo. D M.014-83, 8March 1983:Annexes,VAnnex47
333 SeeAffidavaf Marvin HayGonmlcz, 28January 2006:AnoexesAnnex9I"After the end of the Nicaraguan counterrevolution,around the year nineteeneighty
eight, navigation along the San Juan River returned to normal, and he did not
encounteranyproblems navigating,even at night.''334
5.73. On the occasion of a visit by the Nicaraguan President to the San Juan
on 3 August1998,the NicaraguanArmyprohibited all Costa Rican navigation
on the Riverbetween 9am and 5pm.335
5.74. On 4 July 1999 CostaRican residents inthe border region indicated that
Nicaragua had restricted navigation in the San Juan from 6am to 5.30prn.336
Similar accountswere givenby witnesses. ForexampleMessrs Norman Scott
Chinchilla and Jorge Lao Jarquin attest to the imposition of timetables for
Costa Rican navigation OM the San Juan.337The statement of two Nicaraguan
Army oficers-one from the post at Boca Sarapiqui, andthe other at the post
of Delta Coloradhare also recorded confirming thetirnetables.338
5.75. On 9 May2001the Governmentof CostaRica protestedthe imposition
of timetables on Costa Rican navigation.339The Nicaraguan Foreign Minister
replied that the Republic of Nicaragua was entitled to the imposition of such
timetables, stating that:
"In relationto the limitation on the navigation on the San Juan Kiver as regards the
hours of the day, it should be noted that it is Nicaragua's right and obligation, as the
sovereign State,to adopt theregulations necessary for guaranteeing the safety of the
people and vessels travelling along the river and avoid all manner of criminal
activities."340
334Affidavitof Ruben LaoHernindcz,15February200:nnexes,Vol4, Annex 103.
335"Nicaraguanhos~illtyworsens",NoclhnSanJosC ,August 1998:Anncxcs,Vol5,Annex 147.
336"SonJuan Calmand uneasiness"Lu Nacdn,SanJose,4 July 1999:AnnexeVol5, Annex155
337 "Healsostates that theNicaraguan authhavesct restricton thenavigationschedulcatheSan Juan
River." Statement Mr. Norman Sco~tGhlnchilla,recoInthe Atfidavof 5May 2001:Annexes, Yo4,
AnncxR3
338 "After the paymcntwas concluded,we asked SeTre~nwhetherwe were allowetonavigaledt n~ght,but
herepliedthatnavigationon the SanJuan Riverwasprohibited afterfiveo'clockInthcafternoonas instructedby
superiorauthorit.eAtthat moment,we askethe youngofficer,who identifiedhimself as Sergeant Garcia,
whctherwe could navigatethe Kiverat tocontlnueour return,buthc rcpliedthatnavlgatlononthe 5anJuan
Rlvcrwasproh~b~teafter five thinthe aFternuunas instrubyesuperiorauthunt~es. I thcn observed a
handwritten notice thatsaid thatnaviga~iononthe SanJuan Riverwasonly allowedfromsix in thc rnorningunt~l
fivethirty in the aft"mARidavltof 5 May2001:Annexes,Vol4, Annex 83.
33gCostaRlcan ForeignMinister,RoberRajasLbpez, to NicaraguanForelgnMinister,FranXavmo Agu~rre
Sacasa,NoteNo DM-207-2001, 9 May 2001:Annexes,V3,Annex 72
340 Nicaraguan ForeignMinister,FranciscoXav~erAguirrslSacasa,to CoForeignMinister,RobertoROJU
LopczNote No MREJDM-JU0818/UX/O 3Iugust2001 Anncxcs,Vol3,Annex72.5.76. Costa Rica's response to the Nicaraguan letter of 3 August 2001
reaffirmedthatthe impositionof timetablesonCostaRica fornavigation on the
San Juan violated its rights of free navigation as established by the relevant
instruments.341
5.77. Despite CostaRica'sefforts to have its rights respected, Nicaragua has
continued to impose timetables and time limits on Costa Rica's navigation on
the SanJuan. This action continues to cause great inconvenienceto the Costa
Ricans who regularlyneed to use the San Juan in order to travel, including
travel for reasonsrelated to health and education.342
(5) Searches
5.78. In addition to other violations of the Costa Rican rights of free
navigation, Nicaraguan oficials have conducted searches of Costa Rican and
other nationals navigating the San Juan on Costa Rican vessels with the clear
purpose of creating obstaclesto Costa Rican navigation on the River.
5.79. Itwas in the early 1980s, inthe contextoftheNicaraguan civilwar,that
searches of Costa Ricans and their belongings were first carried out by the
Nicaraguan Army.343 A number of these incidents have already been
mentioned.344
341 Co~laR~canForclgnMinister, Roberto Rojas Lripez,to Nicaraguan Foreign Minister,Francisco Xavlcr Agulm
Saca~a,Notc No. DM-355-2001,26 September 2001:Annexes.Vol 3,Annex73
342 In her affidavit, witness Sandra DiazAwhoworks fur thrcglunal HealthServlcc in San Carlos, stated
thathe~imetablcsimposcdby Nicuraguaprevent nelghboursfrom tmvcllingto the nearest healthofost m cafe
an emergency Affidavitof Sandra Diaz Alvarado, 16 Fc20U6.Annexes, Vol 4, Anne100. S~m~larly,
witncss DlancGfirnezHustos,who teachesat BocaRloCurcira,stated in I~erafthenavtgatlonal ttmc-
tables ImposebyNicaragua have affccred her teaching actiuitles. see AiTdavit ol'Diane G16nez Bustos,
February 2006 Annexcs,Vol4, Annex 101.
343 SeeAmdavit ofMamn Hay-Gonznlcz,28 January 2006:Annexes, V4,Annex 91; andAffidavit of Armando
Perla Pt.r28January2006 Annexes,Vol 4Annex92
344 See'*Nlcaconfiscate materlCromjournalists on the San JuLa NacrtjnSan Jose,24 February 1983:
Annexe~,Vol5,Anncx 17. SeealsoManagerofSWISSTravel Scrviccs,EmillaGamboa,to Costa Rlcan Mlnlater
ufPublic Security, Angel EdmunSolanu,7 June 1982:Anncxes. Vol 6, Annex 223, Custa Rlcan Foreign
Mln~ster,FernandoVolioJimtnez, to NicaraguanCharge d'AtTaircsa.i to Costa Kica,Oscar RarnbnTkllez,Note
No D.M.133-82J, une 1982:Annexes,Vol3,Annex41,Managerof Sw~sTravel Services,ErniliaGambua,to
Casta Rican Deputy ForeMinisteEkhnrtPeters, 5July 1982 AnnexVolh,Annex 224; Manager of Swiss
TravelServlccs,Emilia GamboaCostdRican DeputyForcignMinister,EkhartPeters, 13July 1982 Annexes,
Volh, Anne225;Costa Rlcan ForeignMlnlster,FernandoVolloJlmCncz,to NlcarabwanChargt.d'AFitoresa
Costa Rica.Oscar RambnTcllcz, NoteNo D.M. 126-82,16July 1Anncxcs,Vol3,Anricx42, Costa R~can
ForclgnMinister,Femandu VolioJimencz,ta NicaraguanAmbassadorto Costa Rica, RogclioRomirezMercado,
Note No.U.M.014-83,8 March 1983.Annexes, Val3,Anncx 47.5.80. On 1 May 2004 three Costa Ricans who were transiting the San Juan
were stopped by Nicaraguan officers from the Ministry of Environment and
Natural ResourcesofNicaragua. Additionally, their belongingswere seized.345
5.81. Searches of passengers of Costa Rican vessels have increased
significantly after Costa Rica filed the application in the present case.346
Witnesseshavecomplained about thesearches carried outbyNicaraguan Army
members atthe Boca de San Carlos post, which are carried out even for the
schoolchildren who must travel on the River to reach their school in Boca de
SanCarlos, in Costa Rica territory.347Another schoolteacher explained how
the members of the NicaraguanArrnyhave searched her belongings when she
passed that Army post, purportedly looking for fish or crayfish.348 Another
witness stated that NicaraguanArmy members pointed their machine guns at
him when he passed that Army post, and then proceeded to search his vessel
and his belongings. Accordingto this witness, many CostaRicanslivinginthe
area have suffered abuse from the NicaraguanArmy authorities,but are afraid
to report them because of fear of seprisals.349
532. For the reasonsgiven, it isclearthat by forcing Costa Rican vessels and
their passengers to land at the Nicaraguan Army posts, and by searching the
passengers and their possessions, Nicaragua is unlawfully interfering with
Costa Rica's perpetual rights offree navigationon the SanJuan.
(6) Flags
5.83. Inthe context of the differences that arose between both countries in
July 1998, after the Nicaraguan Government prohibited Costa Rican police
fromnavigating on the San Juan, in August 1998 Costa Rican boatmen stated
345"ChargcfoTicostravelkonthcSanJuanreinsrated"E,lNDime,Managua, 7 May 2004 Annexes,Vol
5,Annex 180.
34hInthcAffidavotSantosMartinArrictaFlo27sJanuary2006, thc deponent statesthatthe passengershe
tmnsporlihisvessels have bccnregularlysearchedatthcNArrnPostlocatcdBocadeSaraplqui:
AnnexesVol4,Annex 87
347SccA4Kdavluf DianGornezBustos,Ft-brun2006:AnnexesVol4Annex 101.
348SeeAffidavitof SaDiszAlvarado, Febmaty2006 AnnexeVol4,Anncx 100.
349 SeAffidavitLuisYanaCoreaTrejos16 Fcbrua2006 Annexes,V4, Annex102.that the Nicaraguan authorities had warned them that they were unable to fly
the Costa Rican flagwhile navigating on theRiver.350
5.84. Shortly after, on 25 September 1998, Nicaraguan officials stationedin
Boca de Sarapiqui forcedCostaRican boatmen toremove the Costa Rican flag
which they flew over their vessels.351
5.85. Likewisein 2001,theNicaraguan authorities onceagain forced a Costa
Ricanboatman to lower the Costa Ricanflag while navigating the San Juan.352
This and otherNicaraguan actionsin violation of Costa Rica'sperpetualrights
of free navigation were protested by Costa Rita-353 AfferNicaragua soughtto
justify its requirement in terms of a rule of "international custom and
courtesy",354 the Costa RicanForeignMinister responded:
"...since thecircumstances are thatofriver andnotmaritimenavigation and due to the
non-existence of internationally binding regulations, the Nicaraguan authorities
cannotdemandof Costa Rican vesselsthat they lower their Costa Rican flag,nor that
they raise the flag of that sistercountry,onnavigating the San Juan River."355
5.86. Afterthe exchange of diplomatic notes on this matter, it appears that
Nicaragua didnot again requestCosta Rican boatmen to lower the Costa Rican
flag.
5.87. However in October 2005, after Costa Rica had filed its application
before the Court, Nicaragua began once again demanding that Costa Rican
250 "NlcaraguahostilityworsenLa MurrrcSsn JosC4August 1998Anncxcs,Vol 5,Anncx 147.
35 "Cnrnrnercdecreases althe borderLrrNrrcibSsn JosC27 Scprcmbcr1998Anncxcs,Vol5,Anncx 152.
352 Thewit~lesdeclaed th"rioneoccastan,the authorititheNlcaragusArmy orderedhlmto takedownthe
CostaRlcanflag fromhls vcsscland infhimethat it hadto be substituted by the Nicaraguanflag everytlme
the vcsswas to pass through the San Juan River": Affidavit of 5 May 2001.An4, Annex83.A
sl~nilarstatemwasalsopresentedby another witnethefollowingterm". amund the yerwo thousand
one,theNicaraguan Armyweredemandintofly tNicaraguaflagonourvcssclsin ordcbcoablcto navigatc
the SinJuan RiverThisactian was maintained for several untiCosta Kica challenged the measure
oficlally andthe prawasesuspended":Afidavit of SantcrsMartinArrietaFlores,27 January2006:Annexes.
Vol4, Annex 87.
353Costa Rlcan Foreign Minister,RobertoRLhpez,to Nicaraguan ForeignMinisFranciscXavlerAguirrc
Sacasa,NotcNo.DM-207-20019, May2001 Annexes,Vol3,Annex71.
354 NicaraguanForelgnMinister,Francwu XavlerAguirreSacasa,to CostaRlcan ForcignMinister,RobcrtoRojas
Lopez,Notc NoMKEIL)M-J~MS18/0 8/ugu,st2001.Annexe5Vol3,Annex72
355 Costa Rican Fure~gnMinisler,Roheno Lbpcz,toNicaraguan ForeiMinister,Franc~scoXavierAguirre
Sacasa,NoteNo. DM-355-200I26 September2001Annexes, Vol 3,Annex73.residents and boatmen carry the Nicaraguan flag in their vessels while
navigating the River. This measure was first verbally announced by
Nicaraguan authorities to the local Costa Rican residents 01'the Boca de San
Carlos region, with the threat that failure to comply would entail a fine or
impediment of navigation .356
5.88. This measure taken by Nicaragua caused concern among local Costa
Rican residents who need to use the San Juanregularly as a means of
communication for reasons ranging from commerce to education and health.
On 18 October 2005 the Municipal Mayor of San Carlos denounced this
measureto the Costa Rican Foreign Ministry,indicating that it was causing fear
to Costa Rican residents in the bordering zone of Boca San Carlos, for whom
itwas difficult if not impossible to obtain a Nicaraguan flag.357
5.89. On 20 October 2005 the Costa Rican Foreign Minister requested the
Nicaraguan Foreign Minister not to apply the requirement of carrying the
Nicaraguan flag so as not to aggravate the situation in the region.358 The
J
Nicaraguan Foreign Minister didnot agree to Costa Rica's request, but rather
insisted on Nicaragua's prerogative to impose the pertinent regulations on its
territory. In a note dated 9 November 2005 Nicaragua's Foreign Minister
stated:
"In compliance with the rights established in the Treatyand the Award,it is theduty
of the State of Nicaragua, as Sovereign, to regulate and provide the rules and
provisions she deems necessary to exercise the vesting of these powers over her
territory'359
356"Nicaraguaconditiopas~inofCostaRican vessels",~VoabnSanJose, 16 October 2005:Annexes,Vol 5,
Anncx 185. Beeals"CostR~canvesselswillbcarrheNicaraguanflag", LaPdl!Nicorugua,ima~ia, 17
October 2005:Annexes, Vol 5, An186;"Nicaragua conditions paoflCosraRican vessels",Nuew
Diario, Managua17Octobcr2005AnnexesVol5,Annex 187;and"CoslaRicaForeignAffairsMinis~erseeks
dialogue regardingasandflag", ElNu'uDoiurioINovember2005 Annexes,Val5,Annex190.
357 Municipal Mayor of San Carlos, CostaRica, Lic.Alfredo Cbrdoba Soro, to DirectorofCostaign Policy,
Rlcan ForeignMinistLicJasbJoaquinChaverriSlevert,NotcNo. AM-1315-218October2005. Annexes,
Vol 6,Annex235. SccalsoAflidaofJust Moreno Rojas, 16 July .nnexes,Vol4, Annex 108
358CostaRlcan ForeignMinister, RobTnvarFaja,to Nicaraguan ForMinisterNorman Caldcra Cardenal,
NoteNo. DM-484-05.20 Clctoh2005:Annexes.Vol3.Annex81.
35y Nicaraguan ForeMlnlsler,Norman Caldera CardenaCosta RlcaForelgnMinisteRohcrtoTovarFaja,
Note No MRWDM-3111284/11/05 9,November2005:AnnexesVol3,Annex 82.5.90. To this day Nicaragua continues to impose an obligation to carry the
Nicaraguan flag on all Costa Ricanvessels transiting theRiver.360
5.91. CostaRica'sperpetual rights of free navigation on the SanJuan entitle
CostaRican vesselsto carry the Costa Ricanflag while navigating. As recalled
in Chapter 4, Nicaragua itself stated in 1868 that the only flags that can be
carried while navigating the San Juan are the Nicaraguan and the Costa Rican
flags.361Nicaragua cannot force Costa Ricanvesselsto lower the Costa Rican
flag,nor force them to carry the Nicaraguan flag as a condition for navigating
the River.
C. Breachesof Costa Rica's rightsof navigation forthe
purposes of commerce
5.92. As has been noted in Chapter 4, Nicaragua seeksto minimize the scope
of the Costa Rican rights of free navigation for commercial purposes,
contending that it is limited to the transportation of commercial goods. This
recent Nicaraguan view of articleV1of the Treaty of Limits has been already
rebutted in that Chapter.
5.93. This section will address the breaches committed by Nicaragua of
Costa.Rica's rightoff ee navigation for the purposes of commerce, both in its
sense of communication and that of trade.
(1 Commerceas communication
5.94. It was in the early 1980s, in the context of the armed opposition to the
Sandinista Government, that Nicaragua first imposed restrictions on Costa
Rica'suse of the San Juan for communicationpurposes.
3hUAs confirmedbyAft?davof CarlosLao Jarquin. 27 Ja2006 Anncxcs,Vol4, Annex 84, Afidavit of
Varela.27January 2006.Anncxes,Vol4,Annex86;AtXdavitof SantoArrieta Fla27Januar2005.ndez
RnnexcsVol4, Annex 87, Atfidavitof Myin Hay-Gonzalez,28 JanuarAnnexesVol 4,Annex 91;
Afidaviof DarliReeseWise28 January 2006 Annexes,Vol 4, Annex95; endAffidav~tof Diane (;bmez
Bustos16February2006:Annexes,V4,Annex 101Afidav~t JosCMorenoRojas16 July 200Annexes.
Vol4Anncx 108
361 Seeparagraph4.10.5.95. On4 November 1980 a Costa Rican oficial vessel transporting Costa
Rican officials from the Ministry of Health was shot at by the Nicaraguan
Army while navigating the Rver.362 At that time, the Nicaraguan Foreign
Minister, acknowledging Costa Rica'srights of free navigation but invoking
national security considerations, requested that all Costa Ricans inform
Nicaraguan oficials when they entered the San Juan, in order to avoid such
incidents.363
5.96. It is noteworthythat, at that time, Costa Rican navigation for oficial
purposes,suchas those performedbythe officials fromtheMinistry of Health,
was not considered by Nicaragua as being outside the scope of Costa Rican
navigational sights. By acknowledging that Costa Rica had a right of free
navigation whenthe incidenttook placeand subsequently formallyapologising
for it, not only didNicaragua recognisethat Costa Ricawas entitled to oficial
navigation, but also that such navigation was for the purpose of
communication, sincethis isprecisely what the Healthoficials were doing. As
seen in Chapter 4, it was only in the 1990s that Nicaragua began to take a
different and more restrictive view.
On 4 August 1998, shortly after Nicaragua issued the prohibition on
5.97.
navigation by Costa Rican police, oficials from the Nicaraguan Army
prevented a judge, a fiscal agent, a public defender andtwo oficials fromthe
JudicialInvestigation Organism, from navigating the San Juan on their way to
Fitlma de Sarapiqui to investigate the death of an 11-monthold child. The
Costa Rican oficials were navigatingin an official vessel. When they reported
to the Nicaraguan guard posts at Boca de Sarapiqui the Nicaraguan Army
officer refused to authorise theirpassage.364
5-98. In September 1998 Nicaraguan oficials likewise prevented Costa
Rican technicians fromthe Programme ofthe Eradicationof Screwwormsfrom
362 "ForeiAffaiMlnlstersaystha~theCafiaszreaIy1s~n~uestlonab,ahcidn, SanJasE,9Norcrnber
1980.Anncxes.Vol5. Ann112
363AnnexesVol5,Annex 111.ation thcwatersof theSanRlver"LarlraciSanJost,8November1980.
3h4"NicaraguwouldchargevitoCostaRicanpol~ceme, aNac~d, aJose6 Aug~st 1498:Annexes,V5,
Annex 150Cattlefrom navigating the San Juan on theirway to implement the Programme
in the Costa Rican border zone, As with previous violations, this incident was
protested by Costa Rica.365
5.99. Nicaragua responded to Costa Rica'snote of protest in the following
terms:
"In thisrespect,Ibeg todiffer with YourExcellency'sremarksconcerningthe fact that
the Jerk-CafiasTreaty and the ClevelandAwardestablish a rightof passage along the
San Juan River. On the contrary, allow me toremind you that the perpetual rights of- .
free navigation granted by Nicaragua to Costa Rica in the aforementioned legal
instruments are specifically limited to nbjetos de uomercio: and a perfectly clearly
defined stretchof the saidrivetf'366
-
5.100 On 26 September 2000, two officials from the Costa Rican Judicial
Investigation Organism and an officer from the police public force were
travelling unarmed in a Costa Rican vessel, on a mission to investigate a cattle
robbev thathad takenplace in a farm on the Caiio RioJardin area,situated five
kilometres from the mouth of the San Carlos on its southern bank. Their
navigation was prevented by Nicaraguan Army officers at the Boca de San I---.
Carlos post and they were informed that in accordance with orders received,
they would not be able to continue their journey.367 This violation was also
protested by CostaRica.3hx
5.101 It is important to note that tightened Nicaraguan restrictions have
resulted inthesuspension, from November 2005, ofdomiciliaryhealth services
provided by the Social SecurityOfice to certain local communities such as
Boca Cureiia and Las Chorreras.269 As a result, the 80 inhabitants of Las
Chorreras community (including 13 children) have lost their primary health
365Costa Rican ForeM~nlsteRoheno Rojas Lbpcz,NicaraguaForeignMlnlster,EduardoMontealegre,7
September1998.Annexes,V3,Annex52.
366N~caraguanForeignMinister,EduMontealegrto Costa Rlcan Foreign M~, obertoRo~asLbp30,
September1998.Annexes,Vol3, An53x
367"PolicwerenotallowcdtonavlgaLnNacidn,SanJost, 28September2000:Annexes,Annex 166See
also"EnergeiicprotestagainstNicaraguaL", anJost,29 September 2000.Annexes,Vol5,Annex 167
368Note Na. DVM-420-00,28 September2000 Annexes,Vol3, Annex68orcignMlnlstcr,JoskAdin Guerra,
369 See the fallowng correspondencerfthe HealthArof Pihl SanCarlos,CosRlcan Dcparttofnt
SocialSecunb, Dr.KattiaCurrilesRilrbo~a,loDirectoroMazagcme~ztnd HealthServiceNetworks,service. Similarly, the 84 inhabitants of Boca Cureifa(including 10 children)
have also lost their primary health service.370 The locations mentioned are
shownon Sketch Map3 (opposite page 8 above).
5.102 Education services have also been affected. Schoolteacher Diane
GomezBustos, who has beenteaching in the region for six years, testifies that
"on account of her duties,theonly way of travelling to andfrom Boca Rio Cureiia is
via the San Juan hver, in particular when she must attend training and planning
meetings, visit relatives or attend to any othermatter.. . [O]n occasion, she has not,
especially in the afternoons, been allowed to travel along the San Juan hver, from
Bocade San Carlos to her place of workin BocaRioCuseiia,whichhas prevented her
from beginning classes on time at the school where she teaches."371
5.103. Restrictions imposed by Nicaragua have also prevented Costa Rican
residents of the border region as well as other Costa Ricans from using the
River as a waterway for comication. For many Costa kcans, the River
constitutes the only means of access to their farms and properties and
Nicaragua's restrictions on Costa Rica's free navigation, as well as the
intimidating attitude of its authorities, areseriously affecting thern.372
NorthHuetarRegion,DrOmarAlfaro Munllo, NotNo RHNPI-303,7 Novembcr 2005:Annexes,Vol6,Annex
235; Reglonol DtreclothefNurth EluetarRcgional Medlcal ServDr.Omar Alfaro Munlln, to General
Dlrectoof Regional Managemen1and Health Service Nctrvorks,Dr Amando Villalobos Castaficda,Now No
DGRRSSRHN-2511-05, 15Novcmher 2005 Annexes,Vol6, Anncx237;and Head of the Nurse Departmentof
the HealthAreaof Pltal,CostaKicanDcportofSocialSecurity,Lie.AntoGarciaPerez, to Director af the
HealthArca of PiofSanCarlos, CostaRlcan Departmentof Social Security,Dr.Knma Corrales Barboza,Note
No. DAP-EA-030-2006, 9 February 2006:Annexes, Vol 6, Annex 238. See also AfiufAna Gabriela
Mazariegos Zarnon, 14February2006 Annexes,Vol4,Annex 98;AfidaviKattiPatriciaCorralesBarboza,
16February2006:Annexcs,Vol4,nnex 99,andAKidavitof Sandra DiazAlvarado, 16February2006:Annexes,
Vol4, Annex 100.
370Headof the Nursing Department of the HeArea of Pital, Costa Rican DeparofeSocial Security, Lic
Antonio Garcia Perez, to DlrcctheHealth Area of Pital of 5an car la^,CostaR~canDepartment of Social
SecuritDr.Kattla Corrales Barbma, Nvte No. DAP-EA-030-2006,9 February2906:Anncxcs, Vol h, Annex
239.
j7' SceAfidavit of Diane G6rnezBustos, Ih February 2006:Annex4,Annex 101.
372 See, e,g., "ChaIbrTluos travelling on the San Juan reinstated',DiavicjManagua, 7 May 2004:
Annexes, Vol 5, Annex 180; "Nicaragua conditions ofCostahcan vessels", LNu~icinSan Jost, 16
October 2005: Annexes,Vol 5, Annex 185;"Nicaragua cond~tionspassing of Costa Rican vessels", El Nuno
UiariuManagua, 17October2005:Anncxcs,Vol5,Annex 187.(2) Commerce as transportation of goods and persons (including
tourism)
5.104. As has been established, Costa Rica'snavigational rights include the
commercial transportation of goodsand persons. In a pattern which will be by
now familiar, Nicaraguan restrictions on Costa Rica's navigation for the
transportationof tourists startedin the early 1980s. In 1982,the navigation of
the Costa Rican tourist companySwissTravel Serviceswas interfered with by
the NicaraguanArmy on several occasions.373
5.105. SwissTravel Services reported that on 6 June 1982 members of the
Nicaraguan Army stopped them when they attempted to enter the San Juan,
while transporting a group of tourists from the Tortuguero Channels on their
way to the Sarapiqui River. The armymembers informed themthat navigation
ofthe Riverby CostaRicanvesselswas no longer authorised,especially if they
were transporting North American and European tourists,334 Althoughthis
incident was protested by Costa Rica,375 similar incidents continuedto occur.376
5.106 In its response to the CostaRican protests, Nicaragua affirmed that as
sovereign ithasthe right to adopt thenecessary measures aimed to preserve its
safety and internal order. But it did not deny that Costa Rica's rightsof free
navigation on the San Juaninclude the transportation of tourists.377
373 See Manager of Swiss Travcl ServtcEtnlllGamboa, to Costa RicanMinisterofPubllc Security, Angcl
Ednlundo Solano7June 1982.Annexes,Vol6,Anncx 223;Manager of Swiss Tmvel ServicEmlliaGambua,
to Costa Rican DeputyForeign MiniEkhartPctcrs5July 1982:Annexes,Vol6,Annex224, and Manngcrof
Swiss Travel Serv~ces,Ernll~aGamboa, to Costa Rican Deputy Foreign MEkhartPctcrs, 13 July 1982:
Annexes,Vol6,Anncx 225.
374 Manager of SwissTmvel Services,EmiGamboa, to Costa Kican MlnlsofrPublic Secunly,Angel Edmundo
Solano,7 June 1982.Annexes,Vo6Anncx 223.
375Costa Rican ForeignMinister,FernandoVolioJimcnczNicaraguanChargt d'Affaira.i. Costa Rlca,Oscar
RamfrnTellez, NoteNoD.M 133-82,UJunc 1982.Annexes,Vol3,Annex 41.
376Manager of Swlss Travel Services, Emil~aGambtoCnsta RlcanDcputyMinister of Foreign Afiw, Ekhart
Peters, 5 Ju1982.Anncxcs, Vol 6, Annex 224, ManagorSwissTravcl Scnziccs,Emilia Gamboto Costa
Rlcan Deputy Fore~gnMinister, Ekhart Peters,13July 1982 Annexe6,Anncx 225.Costa Rican Foreign
MinisterFernandoVolioJimCncz,to NicaraguanCharge d'AfFaar!loCosta Rica, OscarRarnbnTtllez, Note
No. DM 126-82, 16July 19x2:Anncxes, b'ol3, Annex 42; Costa Rican Foreign Minister, Fcmando Volio,to
NicaraguanChargkd'AFfa~rea.ito Costa Rica, Oscar RamuTtllezNote No DM 127-82,20July 1982:
Annexes, Vol 3,Annex43.
37T NicaraguanChar& d'hffaircs toCostaRica,OscarRarnbnTkllez, tCoslnRican ForeignMinister,Fenlando
VolioJimtnez,Note No EN 7X9/82,2 August1982:Annexes,Vol3,Annex 445.107. As noted above, in March 1994the Nicaraguan Government instructed
its officials in the SanJuan to charge US$5for a mandatory itouristcard to any
Costa Rican navigating along the River. In response the Costa Rican Foreign
Minister stated that "such measure was unacceptable and that, evidently,
commerce includes tourist activity." He added that "it is inadmissible that in
the 20th Century national and international tourism not be considered an
important activity in modem cornrnerce."378
5.108. Nonetheless Nicaragua's restrictions on Costa Rica's commercial
transportation of passengers, particularly tourists, have continued and have
resulted in significant losses to the Costa Rican tourism industry.379 Tour
operators and boatmen have been forced to curtail their operations.3sQThis
situationpersists to this day.
D. Breaches of Costa Rica's rights of protectionof commerce,
safeguard,.defence and re-supplyof police posts
5.109. As established in Chapter 4, Costa Rica has the right to protect
navigation for the purposes of commerce on the SanJuan as well as the right
and obligation to safeguard the San Juan and to defend the San Juan and the
common Bayof SanJuan del ~orte.~~~ Theserights and obligationsentail that
Costa Rican officials be able to navigate the San Juan, carrying their service
ams, and, when necessary, to carry out personnel relief and re-supplyof police
posts on the Costa Rican bank. This section describes Nicaragua's actions
which have vioIated these rights.
378 "ConfllctwlththeNicaraguansductotourlsmontheSanJuan",Repuhl~ra,SaJost5 March 1994 Annexes,
Vo15,Annex 123
379 ". WilllamRojas,presidenttheTounsrn Chamberof Sarapiqui.cons~deredthcirnpositlonof that chargc
discourages thepresenceof nattounsm Intheregion anassuredthainfact a numbcr of excursions have
beencancelled becauseof theatcdcost$" "Neighboursinthe SanJuan Riverfed defcncclcs<",LaNaadn,
SanJosk,22June 2002 Annexes,Vo5,Anncx 177 Seealso"'Touristcord affecttheIicosay",Bnrrrcada,
Managua,13 March 1994A.mexer, Vol5Annex 127.
380"...Thetransitof touris~stowardsthe TortuguercCanals In Llrnon,has becn notoriouslyredufew in thepact
days, since many opposepaying the $34 dcmanded by Nlcarabwafor navigating onthe San Jua..".ver
"ConflictovertheSanJuanscares awaytouriLoNocldn,SanJosC,8 November2005:Annexcs,Vol5, Annex
192. SeealsoAtfidaofCarlosLaoJarquin27 January 2006:Anncxes,Vol4, Annex84,Affidavitol'Geovany
Navarro Garro27January2006:Anncxcs,Vol 4Annex 85;Afidavitof Pablo Gerard0 HernandezVarela,27
Januaq2006 Annexes,Vol4, Anncx XhAilidavit of SantosMartin Ameta Flores,27 January 2005. Annexes,
Yo14,Annex 87,Affidavitof Marvin Hay-Gunzalez,28 January 2006.Amexes,4,Annex 91, Affidavitof
Windel Hodgson Hodgson28 January 2006:Annexcs, Yo4,Annex 93, AfidsvloF Daniel Reese Wise, 29
Jsnuar2006:Annexes,Vol 4,Annex 55, andAffidav~tof Ruben Hernandez,17 February2006: Anncxcs,
Vol4, Annex 103.
38
See paragrap4s73-4I17.5.110. On 14 July 1998 the Government of Nicaragua abruptly prohibited
Costa Rican police officersfrom navigating the San Juan caving their service
arms.382 This unprecedented measure intempted navigation of Costa Rican
police officers, which had been exercised over a substantial period in
accordance with the Treaty of Limits, the Cleveland Award and the judgment
of the Central American Court of Justice.
5.111. Traditionally,Costa Rican police navigatedthe San Juan, carrying their
service arms and in uniform, without any difficulty and without restrictionby
Nicaragua. The navigation they carried out was to investigate crimes and
wrongdoing in different parts of Costa Rican territory, as well as to carry out
reliefofpersonnel andre-supply of the differentCosta Ricanpolice postsin the
area. Indeed they carried out joint tasks withthe Nicaraguan Armyon certain
occasions.383
5.112. Some days after the first prohibition on 14 July 1998,Nicaragua'sVice
President Enrique Bolaiios was quoted as referring to the rulesthat Nicaragua
would impose on Costa Rica for her police to navigate the San Juan River
armed, thereby indicating that before 14 July 1998 no such restrictions
existed.3" A similar statement was made by the Nicaraguan Army
Commander-in-Chief who, referring to the implementation of the Cuadra-
Lizano Cornmuniquk,was quoted as saying that before the conflict theuse of
arms by the Costakcan Civil Guardwaspermitted forreasons of self-defence,
since without them they would be exposed $0 the criminals: however, he said
that "now anytransit will be under strict Nicaraguan supervision."3~~
382 SeeNoteuf theIntendentComtnandcserviofAtlanticCommand,Sanpiqui,DanielSotoMonleru,'loCosts
Run Fore~pMinistry,14Febmaty2006:Annexes,Vol6, Annex240. Thpres alsrecordedthi~ncident:
" .theNicaraguanannydclivcredan orderiinpedingthe CostaRicatheNnrthcnlzonctonnvigatcthc
SanJuanRivcrwith arms..Theprohibitiwns mrderedby CoranclOrlanTalavcra,hcad of theSouthern
Militarypost(on the borderCoslaRlca)w~ththcsupportof Nicaraguananmylead.":"Borderdispute
withNicaraguans",L~TUCIJSJ,Jost, 16Ju1898:Annexes,Vol5Annex131 Seealso"Alemin:Tlcosout",
El ~VuevuDiuriManagua,17July19'38:Annexes,V5,Annex 132.
383SeeAfidav~tofCarlocLuisAlvoradoSinchez,27January2006.Annexes,4,AnnexR8;Affidavit of Danicl
Soto Montero,27 Janua200h:Anncxes,Yo4,Annex89;Affidavitof LuisAngel GlrbnAngulo, 2KJanuary
2006:Annexes,Vol4,Annex90, Allidaof JosCGranadosMontoya,28 January2006:AnncxVol4, Annex
94;Affidavitof Ruben LaoHemhndez,I7 February2006:Anncxes,Vol4, Annex 103;andAffidavitof V~ctor
JullaVargasIlernindGzJuly 2006AnnexesVoi4,Anncx 105
384 +'N~caraguhaarditposi~ion",Lu Pret~Managua,5 Allgu1998:Annexes,Vol 5, Anne148 Seealso
"Lrm wilpaythepr~ce",La Trrbi,tanagua6August 1998:Annexes,Vol 5,Anncx151.
385"Gcneral Cuadraavo~dscornrnentlngon the SanJuanRlvcr",LrrTriblma,Managua,1 August 1998.Annexes,
\lo15,htmcx145.5.113. Costa Rica'sright to protect its commercial navigation on the San Juan
with armed Revenue Guardvessels, as establishedby the Treatyof Limits and
the ClevelandAward,includes the right to prevent criminal activities, suchas
smuggling of arms, drugs or immigrants. This task was performed by armed
Revenue Guard vessels in the past. In modem times, and in accordance with
Costa Rica's legal framework, these tasks are performed by the National
Coastguard Service,the Fiscal Control Police, the Border Police andthe Rural
and Civil Guards,allnavigating on Costa Rican official vessels. The evolution
of the Costa Rican public forces in this context is detailed in AppendixB.
5.114. CostaRica is alsobeingprevented fromexercising itsrightto safeguard
the SanJuan,as established in article IVof the 1858Treatyof Limits-a right
which is also a duty. Nicaragua's prohibition of navigation by police carrying
service ms, as well as of police navigation for the purposes of relief of
personnel and supply of police posts along the Costa Rican hankof the River,
prevents Costa Ricafrom doing so.
5.115. Nicaragua's prohibitionof Costa Rican police navigation on the San
Juan prevents Costa Ricanofficers from maintaining surveillanceof the River.
Such surveillance, carried on from the bank of the River, is necessary to
prevent its being used for criminal acts, such as trafficking of persons, drugs,
arms and merchandise, and also to prevent security threats such as terrorist
activities,whichcould posea dangerto thepeace and securityofboth countries
and the region.
5.116. Forexample,on 14January t999theNicaraguan police intercepted two
vessels with 19kilograms of cocaine near San Juan del Norte, on their way to
Costa Rican territory,demonstratingthat the area is adrug-traficking route.386
5.117. Moreover, apressreport of 13June 2005 showshow the lackof police
presence at the Nicaraguan border has opened Costa Rica's northern door to
386"Thc capturofiwoboah w~th19kilogramsof cocalne~nthe vlcioity of thc SanJuInNicaragua,
finaHyconvinctheauthoritsf thatcountry of theexisdrugtrafficknetworkon thatwaterw.. .
Thezoneis a drugtraffickingroute,becausthercino pollcein themunicipalityof Sdel Norte
andsinceits inhab~warkanthecoconuiplantatiandwhcn thharvestiin~shetheywork sellingdmgs
thatthey fialong theriver":"Vcssclsinve>ti,aNaciunSan Jose17 January 19Amzexcs,Vol 5,
Annex154.drug traficking. Of the 330 kilometres of border shared by Nicaragua and
CostaRica, the Costa RicanPolice have identified some29 points of entry for
arms and drug smuggling.3S7Many of them are in the San Juan border area.
5.1 18. The illegal traffic of arms is a major security concern, as Costa Rican
territory is used by groups who traffic excess arms from the Nicaraguan civil
war from Nicaragua to irregular groups in other countries using Costa Rica's
territory.3Rg
5.119. The prohibition of police navigation carryingservice arms, as well as
of police navigation for purposes of relief of personnel and re-supply ef the
police posts alongthe CostaRican bank, prevents Costa Rica kom defending
the River.
5.120. Nicaragua's prohibition on navigation of the River by Costa Rica's
official authorities also hinders Costa Ricafrom complyingwith its obligation
to defend the common Bay of San Juan del Norte from external aggression,
should it be necessary,as laid down in article IV of the Treatyof Limits.
5.12 1. By prohibiting the navigation of Costa Rican police ~arrying their
service armson the SanJuan, it has been impossible for Costa Ricato carry out
personnel relief and to re-supply police posts. This has mads it difficult or
impossible to provide proper protection to the Costa Rican territory and
population. Indeed one post, that at La Cureiia (as shown on Sketch Map 7
387"Thc Northern Border An open door fodnigdealers", C,Vncr:Ir;nIosk,13 Junc 2005 Annexes, Vol 5,
Annex 181
3s8 "Days earlier,the PanamamanPolice confiscatedtwoarsenalswerebellevcdto haw passed throughCosta
Kicanterritury In LosChllcs,policenot onlypay specla1allenl~ontoboats navigatingoo the FriuR~vcrfromSnn
CarlosdeNicaragua,but also to those thauppundocumented peopleat thedgeofthe SanJuan Rivcr and
thcnenterCosta Rican territory through thc Medio Queso River Acctlrrlinglo police rcports, there are groups
working between CostaRica and Nicaragua that take ndvnnragcaf anns caches that are buried afternrmcd
conflictsthencighbouringcountry,inordlonegoliatcthen1wit11tKevolutlonaryArmedForccs(FARC)In
Colombia Edgar Hernindez, Reglunal Oirector of thc Costa Kican Police Force In Cludad Qucsads, and
Gerardo Hemhndee~w, ho work3 in Los Chiles, Lu Nrrcih, that thcy were concernaboutthe lackof
surveillance on SilJuan. Thcy added that there are armsthat are entirclywittypeuf surveillance,
such as Curcfiaand Rernul~ue Saraplqul. The lack of poisduetothe July 1998measureby Nicardgwd
forbidd~ngarmedCostaKtcanpolicefromnavigatingon thcriver Bothgol~oechsgreedthatsuch a weakness
could be currently belng takcn advantageof by tnflickers.19951and 1999,the weaponsused for the
kidnappings thattwukpldce in F~tal,Soca TaAgua Zarcasand Cutrls dc San Carlos must recently in
CafioZapotade Pocuci, entered the countrythrough the SinR~vt-r,accordinto police“: "Intcnse amls
control"La N~i~id,anJose, 25 Septembe2000:Annexcs,Vol5,Annex 165opposite) had to be closed on September 1999because it was impossible to
resupply it.
5.122. Transit on the San Juan is important not only to deliver supplies to
police posts in the northern border area, but also to patrol 130 kilometres of
border. Since July 1998, when Nicaragua prohibited the navigation of Costa
fican policecarryingtheir servicearms, the deliveryof suppliesand relief of
personnel at the policeposts ofDeltaCostaRica, PuertoLindo,Barra Colorado
Surand Barra Colorado Norte has become very difficult. From these posts it
may takedays on footto reach other villages, for example in order to proceed
with ajudicial investigation or deliver a judicial order.389By contrast, a trip
between Boca del Sarapiqui to Curefia(one and a half days in the dry season,
longer in the wet) would take only 30 minutes by boat on the San Juan.390
5.123. Following the prohibition imposed by the Nicaraguan authorities on
navigationof the River bypolice officers carrying theirservicearms, theCosta
Ricaninhabitantsofthe neighbouringtowns andvillagesalongtheRiverbegan
toreport that security in the areawas deteriorating, puttingtheir personal safety
at risk.391
389 Fur example,to rcaguardpost Delta 14in Cureha de Sarapiqui wasonly posslhle in the drytookson Ii
sevenhours,the last two kilometresbemade on foot Normallythisjourney wouldtake twohhyrboat
fromthemainpollcepost inthearea (CornandoAtlanl~co)lucatedInMejnde Sarapiqu~.Anothcrexample
vf difficult access1sCusvnRica The trlp rakes scvhour(Insteadof two) going thruugh Puerto Vlcjo,
Guapiles, Cariari, Las Palmitas and finally Puerto Lindo do L~mvnfrom which the rcrnainlngpartof the trip is
donebyboat alongtheColoradoRlver "Ne~ghboursinthc SanJuan Rlverfeel defenccNncrdn,Sanlose,
22June 2002Annexes,Vol5, Annex 177
390 Ibid.
3g1 "Thepollccrctreatgeneratescertainuncasine~s R~gobertAccvedo,frum SanAntonlo,Sarapiqui, stated
that, althoughhc understands theatlonsthatauthoritinow havc in travelling throughthe mgion, the11
presence1snecessary 'Iftherewere anenicrgencyhere, we wouldnothaveanyoneto rescueus', he warned. The
presenceofotficers has beenalmostcornplelelyreducedin thc settlementsalongtheCostaRicanrwerbank, since
theicamguangovernment forbade-on July 15, 19-8thenavigationof armcdCosta Rrcanpolice officers on
the SanJuan River":"SJuan Calmanduncaslness",La Nacton,SJosC,4July1999.Annexes,Vol5,Annex
155."The inhabitants nl'settlementssuch as Palo Seco, Curetia or Farimalee1that their security haswithered
since July 15,8when the Nicaraguangovernmentforbadcthe Cosla Ricanpolice fromtranciiingon the river
with theirnrlcearms. 'Bcfore,our police wouldvislt us almostevery day;twumonths passby and
wedo not see them', msnlfestedCarlos KugamaCuzrnin, a neighbourof Trans~tinon thc rivcr is not
only important for supplying 7 pollce guard posts, but also for guarding the Costa Rican rlvcr bank which
cumprise130kilomeiresofnaturalbordei': "Nelghboursinthe SanJuan River feeldefencrVuciiSan
JosC22 June 2002 Anncxes,Vol5, Annex 177.5.124. A press report of 22 June 2002 documents how the level of human
security in the San Juan area has weakened since July 1998.392For instance,
beforethe prohibitionimposedbyNicaragua on Costa Ricanpolice navigation,
the Costa Rican police would visit the areaof Fatimade Sarapiqui regularly;at
present months goby without police visits to the area.393
5.125. SinceearlyAugust 1998,shortly afterthe prohibition on the navigation
of Costa Rican police carrying their service ms, Nicaragua has argued that
Costa Rican official vessels do not need to use the San Juan for relief and
supplypurposes because CostaRica possesses good roads andairports in the
border region ,394
5,126. The President of Nicaragua hitnself stated that: "the Costa Rican Civil
Guard doesnot need to navigate the SanJuan River to supply the surveillance
posts at the border with Nicaragua.'' And further, "[tlhe Costa Rican guards
have 'facilities' in their territory to take supplies to their border posts by the
land, without entering into the waters of that waterway, which belongs to
Nicaragua."395
5.127. During an intervention before the Permanent Council of the
Organization of American States on 8 March 2000, Nicaragua's Foreign
Minister Eduardo Montealegre stated that:
"Nicaragua,in honour of the historical tics of friendship and cooperation that exist
between the two countriesand Governmentsh , as madeevery effort to cooperate in
resolving theallegedneed oftheCosta Ricans to supplyand relieve theirborder posts
392 "Ne~ghboursftheSan JuaR~vcrtkcldefenceless",Nacidn,Sanlust22 June 2002 Anncxcs,Vol5Annex
177
393 "The CostaR~canpolicehavenot yc~travcllcddownhereWe stilhave nuseen theman Ihcriver",stated
Sunsingwho has livedin nrcafor 4ycars. 'IdhopethattheyreturnsoonWe rcallynccdtllcmhesince
therearemtny undocumentepcoplcwho arecomingoverfrumtheothers~deandarcgivingus muchtrouble',
statedariaCristilAmeta,a I'arowncrst thsmallco~n~nuniuf l,a Tigi-;lhousc wasbroke1intoand
all of mfood was stolenevenmy watch', statedVenturaMonge."San Juanspicesup relationshipwith
Nicaraguans", aNacrdn,Sanlos810July2000:Annexes,Vol5,Annex 164
794 "SpecldlCornrn~ssioInnchargthcSanJuan",Lo frensnManagua,h August 3998:Annexes,Vol5,Annex
149.
395 "N~cangua AlcminsuggestsCiviGuardnot tunavigattheSanJuan."DeumchePmse Agenruv,Managua, 4
August1998 AnnexesVol4, Annex 146.on the right bank of the SanJuan River via the aforementionedriveritself, despitethe
factthatCostaRica has easy access to these areasby land andby numerousairplane
landingstrips."3'6
5.128. These statements by Nicaragua, aimed at justifying the restriction
imposed on Costa Rican police navigation onthe San Juan, were and are not
correct as a matter of fact. But they are also irrelevant as a matter of law.
Nicaragua has soughtto present the question in terms of whether re-supply of
police posts is a "need", instead of a right derived from Costa Rica'sright to
protect its commercial navigation on the San Juan, its right and obligation to
defend the San Juan and the common Bay of San Juan delNorte and its right
and obligation tasafeguardthe San Juan.
5.129. On 3 August 1998, during a visit to the towns on the San Juanthe
Nicaraguan PresidentArnoldoAlemin stated as follows:
"...if we needtomakeuseoftheinstitution of the armedforcesofNicaragua, we shall
makeuseof them.. . Thesovereigntyof anationis notsomething thatis discussed,it
is defendedwitharmsinhand."3q7
This statement wasmade againstthe background of oppositionin Nicaraguan
political circles to the Cuadra-Lizano Joint Cornmuniquk it was clearly
intended to intimidate Costa Rica.
5.130. As has already been explained in Chapter 3, an attempt was made by
Costa Rica in mid-2000 to try to find an amicable solutiolzto the situation.
Costa Rican President Rodriguez sent a note to President Alernin on 28 June
2000, proposing the mechanism they bothhad agreed upon as a means af
reaching a definitive solution to the problem.3YR Through this note, the
President of CostaRicare-stated the relevant provisions of the Cuadra-Lizano
Joint Cornmuniquk,including the provision that in exercising its rights Costa
396N~caraguanForeignMinister,EduMontealegrc, tatementtothe PermatouncilotheOrganlzatofn
AmericanStatcs,8 March2000,0ENSer.C CPlAC122410.nnexes,VoI6Annex 229.
397"AlerninIcouldtakeupthearmsEl ~VuevDiariManagua,30July1998Annexes,Vol5,Annex 140.
jgg Presidentof CostaRica,M~gueil\nEelKoEuheverriat,oPresitNicaraguaArnoldoRlcmin Lacayo,
28Junc2000Annexes,Vol3, Anncx64Rica would be willing to inform the Nicaraguan authorities of its passage
through the River, as had been the practice immediately prior to 14 July
1998.399
5.131. in his response, the President of Nicaragua sought to subject Costa
Rica's police navigationto Nicaragua's authorisation or"aequiescence".4~~
5.132. On 29 July 2000 the Costa Rican President sent a second note to
Nicaragua's President, again seeking the re-establishment of "the modus
opemndi that existed until July 1998,in which the vessels carrying members
of the Costa Rican police could navigate on the lower course of the river,
having previously informed the Nicaraguan authorities in eachcase." 401 The
note further expressed concern that
"...in the conversations held,subsequent to your letter, between the Nicaraguan
Minister of Defence and the Costa Rican Minister of Public Security with a view to
putting thesedemonstrationsof willingnessinto practice, it hasstinot beenpossible
to reachan agreement on the reestablishment of the modus operandi, or on the
procedures by which Costa Rica, in each case,wouldinformNicaragua, respectively,
of thetransit of CostaRicanpolice onthe lower SanJuan.. ."402
5.133. The President of Nicaragua responded on 3 August 2000, once again
denying Costa Rica's navigational rights, since he insisted on "the
acquiescence" of the Nicaraguan authorities as a prior requirement to allow
Costa hcan police navigation.4o3 He referred to "pending situations that
require, on our part,the concurrence of other Powers of State, in accordance
with our internallegislation."404
5.134. Thus Nicaraguaasserted that nothing less than express authorisation
was required in order for Costa Rican official authorities to navigate the River,
399lbld
400Pres~dentf Nicilragua,ArnoldoAlemin to PresideorCostRica,MiguclAngel Rodriguez,29 June
2000:Annexes,Vol3,Annex65.
401PrcsldcntofCostaR~, ~guelAngelRodriguezEchevt,PresideofNicaragu,rnoldAlerninLacayo,
25)July 20Arznexes,VolAnnex66
402 Ibid
403PresidentufN~caragA,rnoldoAIerninLactoPres~deofCostsRicnMiguclAngelRodriguez,3August
2000 Annexes,Vol3, Ann67
404 Ibld.an authorisation that had to be granted by Nicaragua's NationalAssembly.405
Costa Rica could not accept this proposal, whichwould entail denying Costa
Rica's rightfor its authorities to navigate the San Juan in theterms established
by the international instruments. The imposition of any system of prior
authorisation would mean that Costa Rica's navigation would be subject to
permission, a permission whichcould be denied by Nicaragua at any time.
5.1 35. Subsequently, certain other incidents occurred in which Nicaragua
further restricted Costa Rica's enjoymentof itsnavigational rights.
5.136. In 2005, in response to Costa Ricainstituting these proceedings before
the Court,the Nicaraguan Government announced thatin order to enforce the
prohibition on Costa Rica's official authorities to navigate the San Juan, the
presence of the Nicaraguan army in the area would be reinforced. The
Nicaraguan press reported on 1 October 2005 that the Nicaraguan authorities
had commanded their Anny in the San Juan to "intercept, capture or open
fire... in case a vessel with Costa Rican armed guards is sighted."406 On 2
October 2005 it was reported by the Nicaraguan Press that the President of
Nicaragua commanded the Nicaraguan Army that "under no circumstance"
could armedCosta Rican guardsnavigate that waterway.407Theseactions and
statements clearly aggravate the dispute and constitute a continued denial of
Costa Rica'srights.
E. Breaches of other Related Rights
5.137. Subsequently, certain other incidents occurred in which Nicaragua
further restricted Costa Rica's enjoyment of itsnavigational rights.
405InOctober2000theNicaraguanGovernmentannouncedtothemedthatheywoulprcscnbeforetheNational
AssemblyanofficialrequtodelegateontheNicaraguanarmytresponsibiof grant~perm~ssiofothc
navigationof CostaRicanarmedoFfiio tSanJuanR~ver"PennissianwiberequesledfromthCongre~s
forthenavigatiofarmedCostaRicanpoliceACAhl-EFE PressAgertcMadnd,U2October2000:Annexes,
VoI5,Annex 168.
406'.TheAnny guards[hR~vei'LnPrensrr,Managu1October2005 Annexes,Vol5,Annex 182.
407"Inalert", LaHegLibSanrJosh2October2005:Annexes,Vol5,Annex 183.(1) The right to land at any part of the Nicaraguan bank of the River
where navigationis common
5.138. Under article VI of the Treaty of Limits, Costa Rican vessels have a
perpetual right of free navigation includingthe right to land at any part of the
Nicaraguanbank of the San Juan where navigation is common. In the words
of the CentralAmerican Courtof Justice, this entails "permanent rightsof free
navigation ...and the right for her vessels to moor at all points along either
bank, exempt fromthe imposition of anycharges".4"xSuchfree access implies
the rightto stopornot to stop,tomoorornot tomoor - and isquite inconsistent
with an obligationto stop in order to pay taxes, as is the present situation.
(2) Facilitationof trafficon the River
5.139. But independently of particular violations of this character, detailed
above, there is amore fundamentalpoint. The purpose ofthe transit regime on
the San Juan is to facilitate trafic, not to deter or prevent it. The parties
expressed thisunderlying objective injuridical termsin concludingartide 1of
the 1956Agreement, whereby they promisedto
"collaborateto the best of their ability..n.particular, inorder to facilitateand
expedite traffic..on the SanJuan River within the terms of the Treatyof 15 April
1858 and its interpretationgiven by arbitrationon 22 March 1888, and also to
facilitatethosetransport servicewhich may be providedto the territorof one Party
by enterpriseswhichare nationals of th0ther."~0~
5.140. The evidence set out above shows that, far from collaborating,
Nicaragua isdoing everything it can to prevent Costa Rican trafic on the San
Juan - with the consequence thatthe waterway is these dayslargely empty of
traffic.Nicaragua's conduct is the antithesis ofthatrequired by article 1ofthe
1956 Agreement and constitutes - independently of individual instances - a
violation of that treaty provision.
408Annexes, V2,Annex21,219.
409 Costa Rlca-Nicar195Agreementa,ntcI AnnexeVol2, Anna 24.(3) Customary right to fish in favour of residents of the Costa Rican
bank
5.141. Since the creationof the Pravince of Costa Ricaby the SpanishRoyal
Crown in 2540, a right to fish in the waters of the Sar~Juan River was
established: it was expressly stipulated that as between the two Provinces of
Costa Rica and Nicaragua, "the navigation and fishing and other uses of the
saidriver shallbecommon".41oEver since, the residents,both CostaRican and
Nicaraguan, alongthe banks of the SanJuan have fished there for subsistence.
(I
So far as Costa Ricans are concerned, Nicaragua has breached this long
standing right.
5.142. After Costa Rica lodged the present Application before the Court,
Nicaraguan officials have bannedCosta Ricanresidents on thesouthern bank
of the River fromall fishing on the River.411Residents who attempt to fish in
the Rivernow face detention and the seizure of their belongings, including
their boats,412lines and any fish they may have caught. These measures have
been taken by Nicaragua against residents of the Costa Rican bank of the San
Juan in the area of Boca de San Carlos. ErickMaikol MartinezLopez's
affidavitclearlysums up the situation:
"...He says that all hislifehe and his family have fished in the San Juan River for
feedingand that, until recently, they nevehradproblems to do it... Since some time
ago, particularly since the situatian with Nicaragua aggravated because of the
navigationon the San Juan River, the Nicaraguan authoritieshave banned fishing in
the River. He says that he knows that they do not allow fishing and that family
members and friends have been affected, sincethey have been detained and their
belongings have been seized,includingthe fish,thelines and even theboat, whichhas
affected them financiallyas theyarepaorpeople.. . He continues toindicate thatjust
today members of the NicaraguanArmy told him thathe willnot be allowed the
passage through the San Juan River,even paying theninedollars that regularly are
chargedfor navigating on saidRiver,. . Finally,he indicates thatmany neighbours
prefer not todenounce the abuses againstthem by theNicaraguanauthoritiesfor fear
that theywill be prohibitedthe navigationorbe detained..."dl3
410Seeparagraph2.08.
41 As confirmby Affidatf Leone1MorolesChacbn,5July2006:AnnVol4Annex 106Afidavlt of Erick
MaikolManinexLupez,6 July 2006 Annexe4,Annex 107,AffidaviVictor JuVargaHernandez5
July2006 Annexes,V4,Annex 105Affidav~tJusefAlvareAragon,hJuly2096.Annexes,4,Annex
109andAfidaviofJoseMorenROJ~Sh,July2006 AnnexVol4, Annex 108.
412AfIidavitJosefAlvztrezArag6 July2006.Annexes,4,Annex 109.
413 Affidaof Enck MaikolMartinezLbpez,6 July2005 Anncxes,Vol4,Annex 107.5.143. Furthermc~e, Nicaragua has seized personal belongings which are
associated with fishing, such as lines and fishing rods, even if the person or
persons have not fished at all in the San Juan.414 The residents of the Costa
Rican bank are powerless against these actions of the Nicaraguan authorities
and are afraidto fish for subsistence, given the grave consequences that they
face. This conductofNicaraguanot only violatesthe long standingright ofthe
local residents to fish, but also diminishes and threatens the livelihoodand
subsistenceof entire communities onthe CostaRican bank.
F. Conclusions
5.144. This Chapter has demonstrated that Nicaragua has violated and
continues to violate the obligation to respect Costa Rica'sperpetual right of
free navigation over the portion of the San Juan where it is a riparian State,
including especially the right of navigation for the purposes of commerce,
without being subjectto chargesof any kind or duties, unless leviedby mutual
consent of both Governments. In particular ithas doneso:
(I) by imposing charges on Costa Rican vessels andlor their
passengers, in the form of a departure clearance certificate, an
"immigrationfee" (one to enter and another to exit the River) and
a "tourist card"or "transit permit";
(2) by imposing timetables to navigation, requesting Costa Rican
vesselsto obtain permission to navigate the River, to stop at the
Nicaraguan bankand to fly the Nicaraguan flag;
(3) by requiring passengers to carry their passports with a
Nicaraguan visa;
by conducting searches of the passengers and their possessions;
(4)
and
(5) by denying thatthe transportation of persons, including tourism,
as well as navigation for the purpose of communication between
different points of Costa Rican territory, eitherby individuals or
by Costa Rican oficials, are included within the scope of the
navigation withthe purposes of commerce.
414AffidavofLenncMoraleChacbn,6 July 2AnnexesVul4,Anncx1065.145. It has also been demonstratedthat:
(6) By preventing CostaRrcan officialvessels transporting members
ofthe police with theirregularms withthe purposeofre-supply
and relief of the police posts alonthe Costa Rican bank of the
SanJuanand by denying that such CostaRican activity is a right,
Nicaraguahas violated and continuesto violate the obligation to
respect Costa Rica7s right of navigation with the following
purposes:
0) protection of commerce and of revenue control;
(ii) safeguarding or custody ofthe San Juan; and
(iii) defenceof the common bay of San Juan del Norte.
(7) By preventing residents of the Costa Rican banlcof the §anJuan,
both from that bank and within the waters of the San Juan along
thatbank,to fish for subsistencepurposes,Nicaragh uasviolated
and continues to violate their customary right to fish for
subsistence purposes.
(8) Through its overall conduct with regard to the Costa Rican
navigationaland related rights, and its disregardto the relevant
applicable instruments, Nicaraguahas violated and continues to
violate the obligation to make its best efforts to collaborate with
Costa Rica in order to facilitattraffic on the San Juan and
facilitate transport servicesprovided by enterprises of CostaRica
inthe territorofNicaragua,includingthe waters ofthe San Juan. Chapter 6
The Remediessought by Costa Rica
A. Introduction
6.01. Chapter 5 of thisMemorial demonstrated that Nicaragua has violated
its obligations with regardto the navigational and related rights of Costa Rica
on the San Juan. As set out in the Articles on Responsibility of States for
Internationally WrongfulActs adopted by the International Law Commission:
"Every internationally wrongful act of a State entails the international
responsibility of that State."4JVhe present chapter forrnulattes the remedies
sought by Costa Rica as a consequence of the internationally wrongful acts
committed by Nicaragua. They consistof:
(1) a declaration of the extent of Nicaragua's violations of its
obligations;
(2) the cessation of the internationally wrongful acts that continue
to be committed by Nicaragua;
(3) reparation by Nicaragua for damage caused as a result ofthose
violations; and
appropriate guarantees of non-repetition by Nicaragua of its
(4)
wrongful conduct.
B. Declarationof violationsof Nicaragua'sobligations
6.02. Costa Rica requests the Court to adjudge and declare that Nicaraguais
in breach of its international obligationsasparticularised in Chapters 4 and 5
of this Memorial, in denying to Costa kca the fice exercise of its rights of
navigation and associated rights on the San Juan. Costa Rica's primary
purpose in instituting these proceedings has been to obtain a declaratory
judgment that its rights havebeen violated by Nicaragua. Such a declaration,
made by the principaljudicial organ of the United Nations, will amountto a
final determination of those rights and will oblige Nicaragua to cease its
415AdiclesonResponsib~lityof Stur Internationally Wrongful Acts adopted by the Inernatianal Law
2001(hereinafter"ILCArticleson State Responstbtlity").mbly,Rcsulutiun12Dece~nberwrongful conduct, whichhas consisted in denying those rights and preventing
Costa Rica from exercising them. As the Permanent Courtof International
Justice has said, sucha declaration serves:
"to ensurerecognitionofa situation atlaw,onceand for all and with bindingforceas
between theParties;so that the legalposition thusestablishedcarmotagain be called
in questionin so fasasthe legal effects ensuingtherefrom are~oncerned."~~6
6.03. In particular the Court is requested to adjudge and declare that, by its
conduct, Nicaragua has violated:
(a) the obligationto allow all Costa Rican vessels and their
passengers to navigate freely on the San Juan for purposesof
commerce, including communication and the transportation of
passengersand tourism;
(b) the obligation not to impose any chargesor fees on Costa Rican
vessels and their passengers for navigating on the River;
the obligation not torequire persons exercising theright of free
(c)
navigation onthe River to carrypassports or obtainNicaraguan
visas;
(d) the obligation not to requireCosta Rican vessels and their
passengers to stop at anyNicaraguan post along the River;
the obligation not to impose other impediments on the exercise
(e)
of the right of free navigation, including timetables for
navigation and conditions relating to flags;
(f) theobligation to allow Costa hcan vessels and their passengers
while engagedin suchnavigation to land onanypart of the bank
where navigation is common without paying any charges,
unlessexpressly agreedby both Governments;
the obligation to allow Costa Rican official vessels the right to
(g)
navigate the San Juan, including for the purposes of re-supply
and exchange of personnel of the border posts along the right
416 inrerpwiuofJudgmenuNos.6 lr8 (Foctozyat C/~ovrbwJ,Ser~esA,No13(1926):20 bank of the River with their officialequipment, service arms
and ammunition, and for the purposes of protection as
established in the relevantinstruments, and in particular article
2 of theClevelandAward;
the obligation tofacilitate and expedite tra& on the San Juan,
(h)
within the terms of the Treaty of 15 April 1858 and its
interpretation by the Cleveland Award of 1888, in accordance
withArticle I of the bilateral Agreement of 9 January 1956;
the obligationto permit riparians oftheCosta Rican bank to fish
(i)
in the River for subsistencepurposes.
C. Cessationof continuinginternationallywrongful conduct
6.04. As a consequence of the determination of the unlawful conduct of
Nicaragua as set out above, Nicaragua is obliged to cease all internationally
wrongful conduct which has a continuing character. According to the ILC's
Articles on State Responsibility:
"The breach of an internationaobligation by an act of a State having a continuing
characterextends over the entire period during which the act continues aremains
not in conformitywith the internationobligation."417
6.05. The Court has emphasised the obligation to cease internationally
wrongful acts having a continuing character. For example, inthe Militar and
Paramilit artivitiesinandagainst Nicaragua, the Courtdecided:
"that theUnitedStatesof America is undera dutyimmediatelyto ceaseand to refrain
from all suchacts as may constitutebreaches of the foregoinglegobligations."4'"
6.06. As the International Law Commission recalled in itscommentary to
article 30:
417An~cle14(2SeealsarticIc30ofthArticlon StateRespvns~b~l~iy.
418I.CJReports 19p 149d~sposifara(12)"the Tribunal in the Rainbow Warrior arbitration stressed 'two essential conditions
intimately linked' for the requirementof cessation of wrongful conduct to arise,
'namelythat the wrongfulact has a continuing character and that the violated ruleis
stillin force at the time in which the order is issued'. While the obligationto cease
wrongful conductwilIarise mostcommonly in thecase of a continuingwrongful act,
article 30 also encompasses situations wherea State has violated an obligation an a
series of occasions, implyingthe possibilityof furtherrepetitions. Thephrase 'if it is
continuing' at the end of subparagraph (a) of the article is intended to cover both
situations."4'9
6.07. At the time of the filingof the present Memorial, Nicaraguacontinues
to infringethe obligations enumerated above and, of course,these obligations
are still in force.
D. Full Reparation
6.08. Evidently:
"[ilt is a principle of internationallaw that the breach of an engagement involvesan
obligation to make reparation in an adequateform. Reparation therefore is the
indispensable complementof a failureto apply a conventionandthere is no necessity
for thisto be stated in the convention itself."420
6.09. Consequently,the Court is requested to determine the reparation which
must be made byNicaragua. As the Permanent Court also recalled:
"[tlhe essential principte contained in the actual:notion of an illegal act-a principle
which seems to be established by international practice and in particular by the
decisionsof arbitraltribunals-is thatreparation must, as far as possible, wipeout all
the consequences of the illegalact and reestablish the situation which would, in all
probability, haveexisted if that acthad not beencornmitted."4z~
6.10. In the present proceedings, reparation takes the form of restitution and
compensation.
l9 Unr~eNations,Reportof lnfrrncriloLawCommissionan the worof~tFro-thirse.hsio, AOR,Fifty-
sixth sesslon,SupplementNo. 10(A/56/10, 2001),216
420 Fm~oty:,C'horzci,urrsdictron,PJ.ScrieA,No. g (1926p.21.
421 Factorat Chouzdw,eri&,P.CI JSenesA, No.17 (19281p47(I) Restitution
6.11. Costa Rica essentially looks for restitution in thform of restoration of
the situation priortothe Nicaraguan breaches referredto above. According to
article35of the ILCArticles on State Responsibility:
"A State responsiblefor an internationallywronghl act is underan obligationto
make restitution,that is, to re-establishthe situatiwhich existed beforethe
wrongful actwas committed, provided and totheextent thatrestitution:
(a) is notmateriallyimpossible;
does not involve a burden out of aproportion to thebenefit deriving
(b) from restitution insteof compensation."
6.12. Inthese proceedings restitution signifiesthe reestablishment of thefull
enjoyment by Costa Rica of its navigational and related rightsover the San
Juan as elaborated in Chapter 4 of this Memorial. Clearly, neitherof the two
exceptions for excluding restitutionenvisagedin article 35 of the ILCArticles
ispresent here.
6.13. This form of restitui tniintegrzdmincludes the abrogation of all
legislativeand administrative measures takenbyNicaragua whichcontradictor
deny the obligations enumerated above.
(2) Compensation
6.14. lnsofaras restitution does not constitute comprehensive reparation for
the injuries caused by Nicaraguan wrongful acts, Costa Rica seeks pecuniary
compensation from Nicaragua for all damagescausedby the unlawful acts that
have been committed or mayyet be committed.
6.15. Inparticular, compensationshould include, intearlia:
(a) the loss caused to Costa Ricanvessels arisingfromthe so-called
"departure clearance certificate" imposed on Costa Rican
vessels navigating the San Juan River;
the loss caused to Costa kca for the charge of tourism cards,
(b)
transit permits and immigration fees imposed on Costa Rican
vessels navigatingthe San Juan River; (c) the loss caused to Costa Rica for the charge of a consular visa
to any Costa Rican citizen seeking to navigate the San Juan
River;
the lossescausedto Costa Rica forthe furtherexpenses incurred
(d)
by Costa Rican citizens, the consequential losses in their
activities, as well as all other material and moral damage
suffered by them;
(e) the expenses and costs incurred by Costa Rica as a result of
Nicaragua's violations causing Costa Rica to be unable to
resupply the police posts along the Costa Rican bank through
the San Juan River;
interest at prevailing rates from the time the claim arose until
(f)
payment of thejudgment; and
(g) suchother relief as the Court may deem appropriate.
6.14. In accordance with the practice stemming from previous case 1aw$22
Costa Rica respectfully requeststhe Court to reservethe determination of the
scope of compensationdue fromNicaragua to a subsequent phase of this case.
This is particularly required in the present proceedings because Nicaragua's
breaches are still continuing. As the Court stated in the Hostages Case:
"As to the consequences of this finding [the breachesof Iran'sobligations under the
1961 and 1963 Vienna Conventions]it clearlyentailsan obligation on the part ofthe
Iranian State to make reparation for the injury thereby caused to the United States.
Since however Iran's breaches of its obligations are still continuing, thform and
amount of such reparation cannotbe determined at the present date."423
6.17. Consequently, Costa Rica requests that the Court declare that Costa
Rica is entitledto compensationfor all injuriescaused by Nicaragua's unlawful
acts, resenring its right tosubmita concrete claim as to the amount, as well as
evidenceofdamages caused, at a later stage. Thisis consistent with the Court's
422 Ibd, 6Co@ ChannelMerits, 1J. Reports194926, Militaand Pomm~lrtaActiviries inagainst
N~caragua(1Vrc~irrtguav UnitedStates uf A,Merrfs,1.C.J.Rcpons 1986142(para284), Armed
2005,dispos~para(14)ffhe Cong(fin~ocruRepublicofthc ConvoUgumdaj)dgmentof 19December
423UniredStlrtD~lplorncnd CorrsulurSfa@ln Teh1.CJReport1980,pp41-42 (para0).holding in the Fisherie Jsurisdiction case (Federal Republic ofGermany v
Iceland):
"It is possible to request a general declaration establishing the principle that
compensationis due, providedthe claimantasks the Court to receive evidenceand to
determine, in a subsequentphase of the same proceedings, the amountof dantage to
be assessed."424
E. Assurances and guarantees of non-repetition
6.1 8. Costa Rica also respectfullyrequests the Court to determine, in
accordance with article30(b) of the ILC Articleson State Responsibilityt ,hat
Nicaragua provide assurances and guarantees against repetition of its
international wrongful acts.
6.19. According totheInternational Law Commission,
"[aJssurances and guaranteesare concerned with the restoration of confidence in a
continuing relationship, althoughthey involve much more flexibility than cessation
and are not required in all cases. They aremost commonly soughtwhen the injured
State has reasonto believe that themere restoration of thepre-existing situationdoes
not protect itsatisfact~rily.''~~~
6.20. The Courthas admitted thatinsomecircumstancessuch assurances and
guarantees shouldbe granted. Inthe LaGraladCase, the Courtheld:
"that the commitment expressedby the UnitedStatesto ensure implementationof the
specific measures adopted inperformance of its obligations under Article 36,
paragraph l(b) [of the 1963 Vienna Convention on Consular Relations] mustbe
regarded as meetingGermany'srequest for a general assuranceof non-repetition."426
424 FishevrJunsclrcti(Fuder*lepubltcofGermanyv Icelelan. erits,l.Repons 1964,p204 (pam66).
Equally,IM111toyundPurrrn~ilityct:v:tmeand ugalnstNicnragua,the Court stated opportunity
shouldbe affordedNrcnragus,to demanstrateand prowhat inluwas sufferedaresulofcachaction
of theUnitedStateswh~hthe Cohasfound con- to internationall1C.J Reports1986,pp142-143
(par284)
425 UnitedNations,Rrportofthe InternationalLo~rComm:sslowurk vf~F$y-thrrdspssroGAOR, Fifiy-
slxth sessSnpplemcntNo.I0(A15611, 2001), 219.
426 La Grand{Germanyv UnitedStaterofAmerica),1.C.J.Reports 2901, p.466, 512 (para 123)6.2 1. Equally, in the Case concerni~lg armed activitieson the territoryof the
Congo, the Court took theview that
"the commitmentsassumedbyUgandaundertheTripartite Agreement[of 26 October
20041must be regarded as meeting theDRC's requestfor specific guarantees and
assurances of non-repetition."427
6.22. The record of Nicaraguan denials or rejections of the relevant
instruments related to the San Juan and its violations of Costa Rican rights at
different times shows that Costa Rica "has reason to believe that the mere
restoration of the pre-existing situationdoes not protect itsatisfactorily". This
isthe third time in historythat Costa Ricahas beenobliged to have recourse to
adjudication (arbitrationby President Cleveland, the Central American Court
of Justice and this Court) inorder to obtain recognition andrespect of its rights
as first established by theTreaty of Limits.
6.23. The assurances and guarantees of non-repetition sought by Costa Rica
includea statement by Nicaragua to this effect by means of its own choosing,
and the abrogation of those legislative and administrative measurestaken by
Nicaragua that, if continued in force, wouldconstitute a violation of any of the
abovementioned obligations.
F. Conclusions
6.24. Accordingly, Costa Rica seeks the following remediesin the present
proceedings:
that the Court adjudge and declare that Nicaragua is in breach of
(1)
its international obligations as referred to in Chapters 4 and 5 of
thisMemorial and enumerated in paragraph 6.03 above;
the cessation by Nicaragua of all the breaches of the obligations
(2)
referred to in paragraph 6.03 above having a continuing
character;
427Case concerniArmedActivitontheTerntoroJihe Cong(DemocratRepublicoffCrzngovUganda),
judgmentof19Dcccmber2005para 256(3) the obligation ofNicaragua to make reparation toCosta Rica for
allinjuries causedto Costa Rica by the breaches of Nicaragua's
obligations referredto above, in the form of (a) the restoration of
the situation prior to the Nicaraguan breaches and (b)
compensation in an amount to be determined in a separate phase
of these proceedings; and
(4) appropriate assurances and guarantees on the part of Nicaragua
that it shall not repeat its unlawful conduct. SUBMISSIONS
1. For these reasons, and reserving the right to supplement, amplify or
amend the present submissions, Costa Rica requeststhe Court to adjudge and
declare that Nicaragua is in breach ofits international obligationsin denying to
Costa Rica the free exercise of its righofnavigation and related rights on the
San Juan.
2. In particular the Court is requested to adjudge and declare that, by its
conduct, Nicaragua has violated:
the obligation to allow all Costa Rican vessels and their
passengers to navigate freely on the San Juan for purposes of
commerce, including communication and the transportation of
passengers and tourism;
the obligation not to impose any charges or fees on Costa Rican
vessels and their passengers for navigatingon the River;
the obligation not to require persons exercising the right ofree
navigation on the River to carry passports or obtain Nicaraguan
visas;
the obligation not to require Costa Rican vessels and their
passengers to stop at anyNicaraguan post along the River;
the obligationnot to impose other impediments onthe exercise of
the right offree navigation, including timetables for navigation
and conditions relatingto flags;
the obligation to allow Costa Rican vessels and their passengers
while engaged in such navigation toland on any part of thebank
where navigation is common without payingany charges, unless
expressly agreedby both Governments;
the obligation to allow Costa Rican officialvessels the right to
navigate the SanJuan,including forthe purposes ofre-supply and
exchange of personnelof the border posts along therightbank of
the River with their officialequipment, including service arms
and ammunition, and forthepurposes of protectionas established
in the relevant instruments, and in particular article 2 of the
ClevelandAward;
the obligation to facilitate and expedite trafic on the SanJuan,
within the terms of the Treaty of 15 April 1858 and its
interpretation by the Cleveland Award of 1888, in accordance
with Article 1of the bilateralAgreementof 9 January 1956;
the obligation to permit riparians of the CostaRican bank to fish
in theRiver for subsistencepurposes.3. Further, theCourt is requested to adjudge and declare that by reason of
the above violations, Nicaragua is obliged:
(a) immediately to cease all thebreaches of obligationswhich have a
continuing character;
(b) to make reparation to Costa Rica for allinjuries caused to Costa
Rica by the breaches of Nicaragua's obligations referred to
above, inthe form of the restoration of the situation prior to the
Nicaraguan breaches and compensation in an amount to be
determined in a separatephase ofthese proceedings; and
(c) to give appropriate assurances and guarantees that itshall not
repeat its unlawfulconduct, in such formasthe Court may order.
Ambassador EdgarUgaldeAlvarez
Agent of Costa kca
29 August 2006 Appendix A.
The statusof the San Juan River in international law
Al. As shown in Chapter 4 of thisMemorial, CostaRica'snavigationaland
related rights stemfromthe relevant treaties, inparticular theTreaty of Limits,
as well as bindinginterpretations of that Treaty made theClevelandAward
and by the Central American Courtof Justice. These instrumentsapply to the
San Juan irrespective of any theory about distinctions to be drawn between
"national" and ''int~rnational"rivers.
A2. Bycontrast,Nicaragua has repeatedlyqualified theSanJuanasapurely
"national river",and this characterisation has then been used as a main
argumentto rejector minimiseCosta Rica'snavigatiollaland related rights that
are at stake in the present proceedings.or the sake of completeness, Costa
Rica attaches thisAppendix to its Memorial in order to demonstrate that the
San Juan is governed by an international regime. The second part of this
Appendix will anaryze the impact of customary international law on the
navigationaland related rights of Costa Rica.
I. The SanJuan is an international river
A3. As mentioned in Chapter 2, the San Juan was the main means of
communicationto theAtlantic Ocean forboth Costa Rica andNicaragua during
the 19th century. Indeed, the River had been one of the most important
international means of communication in Central America and was used by
vessels from different flagsand continents. Beforethe entry into force of the
Treatyof Limits, neither Statepossessedexclusivejurisdiction over the River.
Pursuant to the Treaty of Limits, Nicaragua obtained sovereignty over the
entire watersof the San Juan. This decision was taken in thecontext of the
envisaged constructionof an inter-oceanicanal by way of LakeNicaragua, as
explained inChapter 2 above.428
A4. Asthe record reveals, Costa Ricaat all times since the entryinto force
of the Treaty of Limits has recognised that the northern bank, the waters and
the bed of the San Juan belong to Nicaragua.A5. Although there exist other examples of contiguous rivers where the
boundaryisdefinedalong one bank,thisisnot the situationnormallyencountered.
In general, the boundaryis established in suchcases using eitherthe thalwegor
the medianline,ora combination of both. In the literature,ithas been explained
thatthemethodofdefiningtheboundaryalongonebankwasusedinearliertimes,
that it is ill-adapted to technical requirementsand that it leads to unjust or
inequitableresults.429 In general, when this kindof boundaryis establishedwith
regard to navigational rivers,the parties agreeto grant freedomof navigationto
the riparian State other than the sovereign.430 The general drawbacks of this
method of delimitation aresuchthat in some cases,Statesagreed to modify such
earlydelimitations, toreplacethem with the thalweg or the medianline.431
429 ThusP dc Lapradelqualifiethe boundaryon one bank as the +'linzitcfluvialeimplrialiste par excellence",La
frontiiE rm.dcde dwifrnternat~on(Paris: Lcskditionsintemationales, 19281,95; see also LJ Uouchcz,"The
F~xingof Bour~daricsin InternationalBoundaty R(1968) 12ICLQ 791; C RousseauDroit ~nrernrrric~nol
pubbc [Paris Sitry19771,vol. 111,253-4; C dc VlsscP~oblemesde confins en droll lnternarionnlpuhli~
(Pans. Pedone, 19698-9; L Cafl~sch,"Regles gCnCralesdu rlro~tdes cous d'cau intemationaux", (1989-VII)
219 Recue)1des Cours 69; SC McCaffreyThe Law uf lntertrutmnaWaiercours e~n-Nnvrgational Usrtr
(Oxford: Oxford UniversityPress,271,fn 88,SMASalman,"The PresentStateof RescorchCamtd Outby
the English-spcaklng Seclion of the Cent~efor Studles and Research",TorStudies and Rcsearch In
InternationalLaw aridIntcrna~lelationsof The HagueAcademyof InternatioLaw, WurerResources and
lniernotlonCaw(2001)(Thc Hague Kluwer,20021,79-80.
430 See, e.g.: Trealyof PeacebetweenAuseia and Francc, 17Octobeart11,54 CTS 157, Idl; hgcmcnt
betweeFnmnce,GreatBritaiandRussiaandTurkey for theDcfinlt~veSettlementof the ContinenialRoundaria of
Greece,1July 1832artV1,8CTS 477,483 TreatyofPeacebetweenRussandTurkey withregardto theDanube,
14September1829 ,0CTS 83,esp.Art11I;Agreemcntbetween FranceandLibeno,I8SgternhlW7, ar1111,01
BFSP 1013 3, NRG (3rd series) 1994,Treaty beenAfghanlsun and Great Hritninfor the Establishmentof
NelghbounngRelations,2 November 19at,2,14 LNTS67,Cnnvent~uabetweenGrcatBritainandtheNetherlands
wspecungthedel~mitatiof thc boundaryin Borneo,26 March 1art2, 108 LNTS 332,334; Trzabetween
Inkand IraconcerningtheboundaryalotheShatt-all-Amb,4 July 19,90LNTS242. EvenIncaw, when the
river is a non-navigableone, nghtsto he non-sovereignriparare alsrecognized:seec.g., Boundary
ConventionbetwrxnBsslandFrdnceconcerningthchubs, 20 June1780,47CTS 331 csarI;Treatyof Ccsslon
and Rounhries betwccnSardiandSwitzerlandwitregartotheForon,16 March1816,65CTS 447,espart1.
431Thus thcTreatyof 16June 1803 amongst Sard~nia,SwitzeranddGcncva,65 CTS 447~novcdthe boundary
locatedononebankof thcRhone(allocatingitswatcsSardinitothemedianIinc. TheTreatyof 30Novcmbcr
1904hetweenBra11and Uruguaymodifiedtheboundaryl.ocated atthe UruguayanbanksoftheYaguaronnver and
theLake oMerim,moving themto thethalwg ofthc former andtu a longitudinathelat~er:209 CTS419.
Theagrecmcnrof4 September 1913betwecnFrancand GreatBritainmod~lietheboundaryfoilowlnghe hank
orthe Uldtlfuand Biws rivers by virtueof the agr25Juneo1803to the thalweg The boundaryfollowed
the IcRhanofthe Moawas kept, but it wasrecognized thatthc inhofthetwo bankshavc equalnghts of
fishingin this 9 Martens,RGT, 3rdseries, 802. Other exa~nplesincludethe Pmth [Treatyof Uerlln, 13July
IX7R,153CTS 171, 187,artXLV), theShatt -al-Arab(Iran-ITrqa,ty of 13Junc 1975, 1017UMT55);the
Sahine(boundary fixed a trcatybetweenSpan andthe UnitedSates un the western bankin 1819and movedto
the medianlneby an agrecmcntbcrweenMex~coand thc United Slates, quoted byI:Schroeter,"Les systtmes dc
dklimitauondanslesfleuvesintcrnatlonaux",(1992)38AFDl956-a,cordingto thc RusslanInterpretation,the
Usury/hmour (the Treatybctwmn the RusblanFederationandthePeople'sRepubIicof Chinaof 14October2004,
fixethe buund~rieson the mcdlan ofthe main channcl of navigationwhem tlzcriversare navigable,and on
thc medianIlnewhere theyarc not Availablein Russianat. http//www.akdi.dgd/proekU096937GD A.tSI.ITM).
thc beginningof the 20th century.ArgentmeForeignAffairs MiniqtzrZeballosclaimctlthat, by vime of thc uti
possid~lt1uri.sof 1810,theentlrewatersofthe River Plate(KiPlatabelongedtoArgcnlina(JABarberis,
"Regimenjuridico lnternacionaldel Kiodc La Plala" InJA BarEArP~gretti,Rig~rntiridicu ddelRiode
La Plnfc(Bucnos Alres. Abeledo Perrot, 1970)5,2-53). The 'rrcatyConcem~ngthe Rio dc La Plata and the
CorrespondinMar~tirneBoundary QJruguay-Argent~na),19 November 197cnterdl into for12 Fchruary
1974, 1295UNTS 306, divided twatersuf the river between theripariStates. Ithe Frontier Dispute
(Ben~n/Nigecase, Benin unsuccessfully arguedthatthe boundary ran along the lethebNiger R~ver
Fron~ierDi~puie(fininNiger), JudgmeICI. Reports2005,pp. 121-122,paras. 51-56.A6. Nicaragua argues that the San Juanis a "national riverW.432 This
expression is used as a means of denying or restricting Costa Rican rights.
Furthermore, Nicaragua wrongly contends that, through the category of
"international river", Costa Rica aims at placing the San Juan under a regime
of shared sovereignty.433
A7. Two simple and obvious considerations refute the characterisation of
the San Juan as a purely "national" river. Firs the ,San Juan is a waterway
regulated by international instruments. Second, theSan Juan is a navigational
waterway whose banks belong to two different States. Article 6 of the Caiias-
Jerez Treaty states this explicitly, referring to "the portion of the bank of the
San Juan, which is hereby declared to belong to Costa Ricay'. These two
elements are sufficientto establish the San Juan as an international river.434
AS. The characterization of the San Juan as an international river is in
conformity with the positionof the PermanentCourt of International Justicein
interpreting article 33 1of the Treatyof Versailles. It said:
"The actual wording of Article 331 shows that internationalization is subject to two
conditions: the waterway must be navigableand must naturally provide morethan one
State with access to the sea. These are the two characteristics-and this observation,
as will be seen,is not without importancein relation to the questionto be answered-
by which a distinction has for a,long while been made between the so-called
international rivers and national rivers."435
432 See, e.g'.ThSan Juan River belungs lo Nlcsragua", Press Release, Press Officc ofofForeignstry
Affairof Nicaraguh,March2000:Annexes,Vol 5, Anncx 157. AccorditoMr Maurlcio HerdoclaSacasrr,
AgentofNicaragua: "ThcSan Juan Rive1%a natlonal river; it iswhere theexclusive soverergISy
recognlsed, therefore,thatahloof welght bcfore the lntematrmnalCourt of specialltak~ngInto
account that the ufsovereignt1sa firndamentFacloupon which ~niernat~onaresls 'Nicaragua has
a solidpositIt1%a strong positionunder intemal~onallaw and the inshuments lrfinc rcvlcws the Jerez-Catas
'Treatyilnd the Cleveland Award, under na ground you wi(thealleged rlght of the tiquillos) appllef
either tu armed navigatransportatiand cvcnless tothe navlgatlon oftourists,'he recalled.":"Tico\ cla~m
'new and addiuonal' rights", EDiarro,Managua,4 November2005.Anncxcs, Va5,Annex 141
433 Scc,e.g.,*TheSanJuan Rlverbdongs to Nicaragua", Press Rclcase,Press Officeufthe Ministryof ForelgnAffais
of Nicaragua, 6 MaZOO0 Annexes, Vul5, Anne157.
434 It should also bc notcd that art 2(a)OFthe Unltcd Nations Convenuon on thc Law of the Nun-navigationalUses
of Internat~onalWatercourses, 21 May 1997, GA RCB5(noyet Inforce) dcfincs a "Watercourse" as "a
system of surface watersand ground waters conbyvirtueoftheir physical relationship a unitary whole
and normallyowlng Inloa cornmonterminuarl2(hdcfincan"Intematlunawatercoursas**awatercuune,
parts of which are situated in diffcrcnt States" In accordance with thissystems approach, theSan Juan, with ~ts
groundwaterstributar~esadellsituated twod~tlerentStatesan"~nternationalwatercourse".
435 Tcrv~tovraJlut-ivdicfinnof ahclnternatronulGnf thRiverOderrudgrncnt No1B,YC.1J.SenesA No
23 (10 Septt-mbcr192p.25.A9. Both criteriaare methere. Furthermore, asset out above, therights and
obligations of both riparian Stateswith regard to the San Juan are specifically
regulated by international instruments.
A10. The factthatboth banks ofthe SanJuan do notbelong to thesame State
is an essential element compelling rejection of Nicaragua's characterisationof
the San Juan as a "national river". The PermanentCoust, inanalysing the legal
status of the Kiel Canalbefore the conclusion ofthe Treatyof'VersaiIles,stated
that "the KielCanal, having been constructed by Germany in German territory,
was, until 1919,an internal waterway ofthe state holdingboth Banksn.436 The
judgment also stressed that:
"[tlhe Court considersthatthe termsof article380 [of theTreatyof Versaillesj are
categoricaland give rise to no doubt. It followsthatthe canalhas ceasedto be an
internal and national navigablewaterway,the use of whichby the vessels of states
otherthantheriparian stateis Iefientirelyto the discretionof thatstate,andthatit has
become an internationalwaterway intended to provideunder treatyguarantee easier
access to the Balticfor thebenefitof allnations ofthe w0rld."~37
A1 1. Hence, the fact that the waters of the San Juan belong in their entirety
to Nicaragua is not suficient to deny the characterisation of the river as
international. Indeed, a similar situation is found in the case of international
rivers crossing different States (so-called "successive rivers"): in each part of
the territow of the different States, the waters of these rivers (and even both
banks) are, in their entirety, under the exclusive sovereignty of a single State
- but this is without prejudice to the existence of international obligations as
to such rivers, both under treaties and general international Eaw.
A12. Costa hca is clearly a riparian Stateof the SanJuan. According to the
definition espoused by the Helsinki Rules on the Uses of the Waters of
International Rivers, adoptedby the International LawAssociationin 1966 and
considered to largely reflect general international law:
"theterm'riparian State'referstoa Statethroughoralongwhichthe navigable portion
of ariverflows ora lake lies."438
4J6 TheS.S'Mmbledo',PC I.I.SenesA, No. 23(1923)(emphasisadded).
437 Ibidp.22.
438 ArXII,par3. See IntematrlawAssociation,Reporroffhe F$w-Conf~reirue(Hels,966)505A 13. Conventional practice from different continents clearly demonstrates
that when two Stateswish to attributea river entirelyto one of them, in orderto
give that State complete freedomover the river,they choseto allocatenot only
the waters but alsobothbanksof the river to a single State. These cases include:
The Treaty of Osnabruck of 24 October 1648 between Sweden
and the Emperor of Germany,as regards the River Oder;439
The Treaty of Utrecht of 11 April 1713 between France and
Portugal with regard to the boundary along theAmazon River;440
The Treaty between Poland and Prussia of 18 September 1773
over the River Netze;441
The Treaty between the Ottoman Empire and Russia of 14
September 1829regarding the boundary of the Danube;a2
The Treaty between France and Great Britain of 10August1889
regarding the boundary between Gambia and Senegal.443
A14. Nicaraguahasrecognizedthe statusof CostaRicaasariparianonthe San
Juan. In a note dated 18 October 1886, the Minister of Foreign AfFairs of
Nicaraguaexplainswithregardto CostaRicathat"article2 [ofthe 1858Treatyof
Limits] made herriparianinpartof the right handbankofsaidRiver;whilearticle
4 established her dutiesfor incurringinthat concession.".444 He wentonto say:
"It is already evident, from the above, that assuming the Treaty of Limits is valid,
Costa Rica would merely be a riparian of the San Juan River from itsmouth inthe
Atlantic to three Englishmilesbeforereaching Castillo &jo.'1445
A15. Butevenifariverexclusivekyflows within the territoryofone State(i.e.
the two banksbelong tothe same State), this does not necessarilypreclude its
having aninternationalcharacter. Discussing the Latin American,conception of
thefluvialregimeininternationallaw, a leading author has written:
439 1 CTS 198244,Art X. Twlssexplains thnt "Swcdcn having obtalned uTreatyoCOsnabruck(24 Oct
1648)the cession of the entlre river Odcr frarnthofEGermany,was hckdra have acquired thereby
possession ofargin of twGcrtnan miles on the further han inscparable accessory to the"sTream
Twiss, TheI~nwnf ATafrt~C~lnsiOurednIndependentPr>ht~culCrrmrnurrO.n !he Rightand Dutic(jf
!VatinninTimeo$Pe(iue(Oxford Clarendun Pre1R92),238-9.
Art X:"...les deuxbordlar~vli-desAmazones,PantlcrnkndtonalqucIcseptentr~onal,apparttelouteen
propritti, dornalneet souveraincti:i SPortugalse7' 45 259.
44145 CTS 253,259, Art 11.Twlss, 238 poin~ethat"by the Treauf Warsaw (18Scptclnber 1773),Poland
agreed that the entire sivcrNet~cshould Prussia,aPrusciacontcndcd, awasultimatelsucccsr;ful
in hcr contentionthecesslon of fhc cntire river irnplled tthestream and both hanks"
442 60 CTS83.
443 172C1.S185.
Note oSecretarof State in chargeof the FAffirOFthc Rcpublic of Nicaragua.FGas~tolSccrctaty
of ForeignAffaufCosu Rlca,Asccnslbn EsquivI8,October1x86(cmphasls added), in Republicade Costa
RlcaMrrnuriu dla SecretariaRclucioneExtcr~oreyCarterasAnexus1887(SanJost: Imprenta National,
1887) AnnexesVol3,Annex 35.
445 lbid (emphasis added)."Dans la conception ambicaine, un fleuve ne doit pas &tre considCrCcomrne
internationalaupointde we dufkgirnequidoit lui &tre appliqub par celnseul qu'ilest
commun a deux ou plusieurs Etats ; un fleuve dans cette conceptionne dait &tre
considkrkcommeinternationaq l uelorsque rkellementil prtsente un intkrit universe1
au point de vue du commerce et de la navigation ; cefleuve pourrad6s lors&reun
fleuvequitraverseou skpareplusieurs tatsouun fleuve intkrie~r."~~~
A16. What isessential forthe characterization of a river as international isits
regulation by international law,notably by treaty. For instance, the Treaty of
Versaillesinternationalizedthe River Oderfrom its confluence with the Oppa,
although the Oder ran (at that time) entirely on Germanterritory.447For some
authors, the fact that an international river becomes"national" due to changes
in the territorial sovereignty (i-e. when both banks that happened to belong to
two different Stateslater becomeunder the sovereignty of a single State), does
not depriveitof its international regirne.448 Tndeed,this wasthe situationof the
RiverPo. ThePeaceTreatiesaf Zurich of 10November 1 859449 andVienna of
3 October 1866455 made itan internal Italian river. Nevertheless, freedom of
navigation was rnaint~iined.45~
A17. On this basis it is not surprising that the Central American Court of
Justice, analyzing the rights and obligations of Costa Rica with regard to the
SanJuan, cameto the followingconclusion:
"The proposition that the rights of navigation on the San Juan River that were
confirmedinCostaRicadonot extendtovesselsof war,but simply tovessels devoted
to revenueand defensive purposes-an interpretation that in noway detracts from the
doctrine setforth concerning the practicalownershippertaining in greatpart toCosta
Rica over the San Juan River becausenavigation with vessels of war, aside from
446 C Sosa-Rodriguez,dmiijluv~aintematmnal et lesJeude.I'drnkgue lntine(PaPedone,19351,110.
447 Art331of Treatyof PcocesignatVersailles28 June1919.
Carathkodoty",DasStrorngebietsrcchutndd~e~nternaelusssch~flBhrt.v*o'l. 2, in F von Holtzendorff,ed.,
Handbuch desViilkcrnaibtz(Hambu,FRichter18871,303;V d'Erlach,ConferencNuviguuhleWatenvoys,
81;RR Bmter, 73e Lawoflnrevnurio~Wutewc~,v, irparticrrlregard to interocecunul{Cambridge
MA, HarvardUniversilyPres19h4),112(quoted by B Vitanyl,lntcrnarionrrlRegime mfRrverNavigrriion
(AlphenvandenRip, SgthoffandNuordhoff, 1979)).
449 Treatyof PeaceBetweeAustriandFranceand Sardini, 1CTS155,161,artXVIII.
450 132CTS209,211, utsI[I,IV.
451 Seethe lnterventlonof Mr Bignarni,unbehalf ofat thConferenceof Barcelona.ocltti:des Nations,
Conference:c BarcelanComptes rendueltexterelatdiila Convenriun lerkgtme des vuies t~uvigahler
d'mteriinternotiunala ladeclaraiion portent reconnaisar11n~irapavzllodm EtutsJGprruruude
httoramarillm(Geneva,19211,5;PFauchille,Trait6de din~ernutronnlpubVol,I (19251,56BV~tBny,
TheInierrtorioRegrmeofRivcr Nuvrgu~~o(zA~lpamndeliRijnS~jthof1979)2 11.constituting a cause for disquiet, would imply a function appropriate to territorial
sovereignty."452
Al8. To sum up, the San Juan possesses an international status, since its
banks belong to two different States, it provides access to the sea to both of
them and its regime is regulatedby international law,particularly treaty law.
11. General international law concerning navigational rights on
international waterways and itsrelation to the dispute
A19. Chapter 4 of this Memorial focuses on the navigational and related
rights of Costa Ricaonthe SanJuan. Withthe exceptionofthe customaryright
of fishing for subsistence purposes of the inhabitants living along the river, it
dealt with those rights from the conventional viewpoint. However,this is not
the only source of Costa Rican rights. As the first part of this Appendix
demonstrated, the SanJuan has an international character,and Costa Rica is a
riparian State. Given this situation, general international law rules relativeto
navigation on international waterways are also applicable.
A20. There is no doubt that there existgeneralinternational lawrules related
to waterways in general and rivers in particular. The Permanent Court of
International Justice, analysing the geographic extent of the rights of
navigation establishedby article 33 1of the Treatyof Versailles,explained:
"The Court must therefore go back to the principles governing international fluvial
law in general and consider what position was adopted by theTreaty of Versailles in
regard to these principles.
It may well be admitted,as the Polish Government contend,that the desire to provide
upstreamStates with thepossibility offree accessto thcseaplayeda considerable part in
the formation of theprincipleof freedom of navigationonso-called internationarlivers.
452 AnnexesVol 2, Anncx 21220 Accord~ngtoan authorwriting at thc tlmtherendering of Central
Amencan Cuun'sjudgmentthe "rights of Costin Nicaraguaterritory arc notdependentmerelyuponthe
good faiofNicaragua In ohscrvingher treaty obligations, iheyrest upon ancvcn stranger basisthan that, fur
theyare positwr~ghtbeIonging to Costa Rica wherabporrion of the territory af Nicismade
subservientto cemusesandinterestsof Costa Rica Inother words,an inlernatiohasbeen created
by rcason of these r~ghtsmaking pan af the tcrritory of Nicaraguastateserve ccrtaln uses and
~nterestsof Costa KthedornlnanstateCPAnderson, Thhe isiurbingInfluenceInCenArnenroJrhe
N~caragunnCanalTwav wilthe Un~teStutcsoAmericaat~Its Conflwiththe TrentyRightsclfCo,rtaRlca
(GibsoBrosW, ashlngioDC, 19171,7-8.Bur when considerationis given to the manner in which States have regarded the
concretesituations arisingout of the factthat a singlewaterwaytraverses or separates
the territoryof more than one State, and the possibilityof fulfillingthe requirements
ofjustice and the considerationsof utility which this factplaces in relief, itis at once
seen thata solutionoftheproblem has beensoughtnot inthe ideaof a rightofpassage
in favourof upstream States, but in that of a community of interestof riparian States.
This community of interestin a navigableriver becomes thebasis of a common legal
right, the essential features of which are the perfect equalityof all riparian States in
theuse of the wholecourseof theriver and the exclusionof anypreferentialprivilege
of any riparianStatein relationto the others."453
A21. Of course, what the Court said must be adapted to the particular
situation of each waterway, in this case, the San Juan. Irrespective of the
existence or not of a generalised right to navigation in international rivers in
favourof vessels of all nations, ithas been asserted that sucha customary right
does exist in favour of riparian States. The Helsinki Rules of the Uses of the
Waters of International Rivers can be considered as declaring an existing
general international law rule when it states in its Article XI11that:
"Subjectto any limitationsorqualifications referredto inthese Chapters, each riparian
State is entitled to enjoy rights of free navigation on the entire course of a river or
lak~.''~54
A22. It must be noted that the ClevelandAwardqualifies Costa Rican rights
declared in the 1858 Cafias-Jerez Treaty, including those of navigation, as
"natural rights", and acknowledged that "perhaps" these are not the only rights
Costa Rica possesses.455
,423. While recognizing to Costa Rica navigational and related rights, the
1858 Treaty could not have had the intention to restrict the existing rights in
accordance with general international law. On the contrary, it extended them.
453 ItrritoriJur~srirctoJrhe InrevnrrriCvmrnrssroof the Xivcr Oder. P.CSenesA No 23, pp. 26-27
(1929).
454 InternationlawAscoclat~o, eportojthr IT$y-SecondCrrnjerence(tlelYhh), 596.
455 As theClevelanAward held"Theualuralrightsof rheRepubliCostahcrr alludcd to isad stipulation
[artVlIIotheTreatyofI,imits]therightwhich,Inviewufthebounddes fixedbythesaidTreatyof Limits,
sheposscsseqithesoil therebyrecognizedasbelongingexclutoher;therights whichshcpossersesinthe
harborsofSan Juadel NorteandSalinaBay, mdthe rightwhlch shpossessein so mucboCthenverSan
Juanas limore thanthree Englim~lesbelowCastilioViejo,tncasunngfwm theexteriorfort~hcalionsof the
said castle as the same existed in the year 1858, another nghtnot hereparticularlysptc~fied"
ClcvclanAward,paragraph10(cmpha~iadded):Annexcs,Vol2Annex 16.This is thecase, for example, with regard to the rights grantedto allkind of
Costa Rican vessels (with the exception of war vessels), freedom from dues,
and the right to navigate between two points on the Nicaraguan bank. On the
other hand, while recognizing particular conventional rightsnot existing at the
customary level,Nicaragua restricted itself its rigasa riparian State having
sovereignty over the waters. This is the case with regard ta the exercise of
some rights of police that cannotbe appliedto Costa Rican vessels.
A24. Accordingly navigationby private vessels flying the Costa Rican flag,
transporting goods and passengers from one point of Costa Rican territory to
another, from Costa Rica to Nicaragua or vice-versa, and from Costa Rica to
the sea or vice-versa, can be considered as rights also rooted in general
international law. Other navigational and related rightof CostaRica have a
conventional character agreed by both riparian States and recognised in
successive international awardsand decisions.
111. Conclusions
A25. Byway of summarythe following conclusions may bereached:
(a) The SanJuan is an internationalriver,whoseleft bank and waters
are under the sovereignty of Nicaragua and whose right bank
from the end of Punta de Castilla to a point three English miles
distant fromCastilloViejois underthe sovereigntyofCosta Rica.
(b) The rights and obligations of both riparian States with regard to
the river are defined by binding international instruments, in
particular the Treaty of Limits, the Cleveland Award, the 1916
Judgment of the Central American Court of Justice and the 1956
Agreement.
(c) Treaty law applicable between theParties extended Costa Rican
navigational and related rights existing under general
international law, and to that extent limited Nicaragua's
jurisdiction over the River. Appendix B
The Revenue Guard:
Creationand Development
B 1. The Costa Rican Revenue Guards were created in the 19th century as
part of the Government'seffort to control contraband, both of goods whose
production was a State monopoly,such as liquor, and foreign articles thatwere
taxed by law.
B2. For example, through DecreeNo. XVIl of 10 May 1847,the Military
Guards of the Sarapiqui and La Flor Rivers were created. Article2 of this
Decree assignedto each one a Commander subjectto the ordersof the General
Intendant, and a number of troops which was contingent on the circumstances.
Article 3 gave them their tasks, in particular to "apprehend the articles and
effects that are illegally introducedin the State, and to impede the exit of any
person that does not bear its passport.. ."456
B3. In the 1858 Regulations of the Treasury (Decree No. IV of 23 March
1858)a Chapter was includedthat referred tothe Revenue Guards. Article 161
of Chapter XIX decreed that "besides the fixed revenue guards that are
established by these Regulations or that are established by the Customs
Ordinances, there will be an ambulato~y guard, whose most immediate chief
will be the Inspectorof the SubordinateTreasuly ..."a57Article 162stated that:
"there willalwaysbeanambulatory round w,atchingover toprevent the commission
of any fraud or contraband fromtheRio Grande to thevicinity of Turrialbaa ;nother
roundwill carry out the same vigilance in theterritory comprehended between said
Rio Grandeandthe one of Chomes;andanotherfromthe latterto the confinesof
Nicaragua. The Inspector of Treasury will ensurethateach of theseroundscarries out
theservice alternatively ineach of the saidterritoriesfour months a year.'l458
B4. Article 163 established as the functions and obligation of the
ambulatory rounds the following:
456Leym ddtwtay drdenesexpedrpo, 10SupremosPodereLgidrrrd11Ejecuttbe Cr,.vfuRef10aijos
de 1847y 184TarnoX (SaJusl. lmprenlPaz, 186390-91AnncxesVol5, Annex197
457ColeccrGrlbsley~s,decrety drden8.1expedsor loSup~nntPodcresLegrslatyEjecu!itroCosta
Ricuen ea60de 1858,TotnoXV(SaJost.ImprcntlPaz, 1811,8-54Anncxes,Vol5,Anne201.
458Ibid,59."lSt to obeyand carry out the orders that they receivefromthe Revenue Judge, of
the Inspector of Treasusy, of the Administrators of Public Funds, and from the
Governorsofthe Provincesinregards tothepursuitof fraudsandcontrabands, andthe
capture of smugglersor defrauders:
znd tocontinuously makethe round in the territoryinwhich they are to carry out
their service, always watching that transgressionsagainst the Fiscal interestsnote
committed, and therefore pursuingand seizing the clandestinefactories and sales of
gunpowder and liquors: the clandestine plantationsand sales of tobacco, and the
introductions and extractionsof articles that are attempted to be carried out by
contraband:
jrd to frequently visit the spiritshops,to weight the liquors,to check themeasures
and to report to the respectiveAdministratorand to the Treasury Inspectothe faults
they observe;and
dth to equally visit thesales of foreign liquorsand the beer distilleries to verify
that they are being made with the proper authorizationhm459
B5. On 6 February 1878, through Decree No. X, a Guard was created at the
mouth of the SanCarIosRiver. The Decreereferred to the growing productive
importanceof the lands bordering the San Carlos River. It created the Guard
to prevent produce from being exported without paying the corresponding
taxes (article 21, and to charge those taxes and report this to the Treasury
Department. It was also chargedwith the duty to prevent any import of goods
lacking the authorization of theTreasury Ministry (article 3). The San Carlos
Rver Guard had responsibility to pursue "the articlesof Fiscal monopoly and
to proceed with the utmost diligence in the pursuit of fraudthat might be
committed against theNational Treasury. .."460
B6. On 16 March 1886, through Decree No. XXXI, the Costa Rican
Government createda Revenue Guard at the mouth of the Colorado River,
"with the purpose of establishing the necessary surveillance of contraband in
the Atlantic coast of the Republic."461 This Revenue Guarddepended on the
General Treasury Inspection (article 1). On that same day, and reflecting the
importance given to thisnew maritime and terrestrialGuard, the functions of
4h0Colecnondelas disposiciune.+iegyradniinistrot~vasapedieluiio1878 (San JosC:Frnprenta
Necional),39-artic5AnnexesVol6,Annex204
461Coleccidn de luv dispr>.vc~onelsyadminislrativo~emritdasahn 1886 (San JosC:Irnprcnta
Uac~unal8873,152-15Annexes,V6, Annex 205.theColorado Guard were determined through Decree No. XXXTT w,hich also
establishedthata nationalsteamerwouldbe assignedto it.The functions of
thisGuard were to be the following:
"lSE To prevent contraband in the waters and territories of its
circumscription.
znd To give the relevant notice and information for the persecution of
smuggling to the guards in San Carlos and Sarapiqui,or to the Inspector General,
accordingto thecircumstances.
3rdTo request assistance from theguards of SarapiquiandSan Carlos, and
obtain iwheneverthe Commanderof Colorado deems it necessary.
4thTo make atleast one monthly visittothe port of Limon in orderto take
correspondenceto and fromColorado.
5th To reconnoitre at least once a week the Rivers San Juan, Colorado,
Sarapiqui andSan Carlos; the firstin the wholeextent thait is navigablfor Costa
Rica, the second in its entire extent, and theltwoeralong the entire stretches that
are navigable by steamer.
The itineraryshallbereserved in orderthatthe guard's actionsarenot eluded.
6th To institute preliminary proceedings andto report seizures to the
respective authorityat Limon.
7& To carry out orders receivedhm higher revenue authorities that have
been duly cornrnuni~ated."~6~
B7. Other guardswerecreated in differentpartsof thecountry. By the time
of the National Budget Law of 16 August 1888, the following Guardswere
contemplated andtheirrespectiveresources assigned, including thesalariesof
theirpersonnel:
Ambulatory Guard to theinterior;
Puntarenas Guard;
GuanacasteGuard;
LirnbnGuard;
Infiemito Guard;
CarrilloGuard;
San Carlos Guard;
SarapiquiGuard;
Barranca Guard;
ColoradoGuard;and
Frio River andSaboyal G~ard.463
462 Ibl153-154:Anncxcs,6Annex206.
463 Coleccdc Iorli.iposicionesley admini.rfmemltrdusen I888 JosklmprcntaNaclonal,
IW9), 464-467.B8. In that same National Budget Law the salaries of the Captains and
personnel of the nationaI steamers Mora andJuan Suntamaria were also
included.464In 1891another steamer was purchased fromEngland to service
theAtlantic coast, and through Decree No. CCCXXXIVof 13 July P891, itwas
named Bvaulio CarriElo.465
B9. In a Reportof theCommandantof the Colorado Guard to the General
Inspector of the Treasuryof 10March 1895,it was stated that:
"tor the better service and fulfilmentof the dutiofthe Guardof this zone, it was
divided into four Bodies,as follows:
I. Guard of San Carlos: Integrated by four guards and a Chief, who
traversefromthe Mouthofthe Rtver withthesamenameup to thedock
of San Rafael, penetrating the channels of Rosalia, Patastes, Tres
Amigos,Sibalos, EsteroGrandeandArenal.
11. Guard of Sarapiqui: Integrated by four guards and a Chief;traverses
from themouth of the Riverwith the samenameup to Hacienda Vieja,
visiting the channels of Toro Amarillo, SaJosk,Masalla and Sucio,
and laTigra.
111. Guard of Tortugero: Integrated by two guards who watch over the
beach and traverse the Bay and ChanneIof Tortugero,PalacioJalora,
Parisminaand Reventah.
1V. Guard of Barra del Colorado:Maincentre of the Guard'soperations,is
integratedby aCommandant,a SecondChiefandfiveguards;traverses
from the Bamadel Coloradoup to the mouth of the same, penetrating
in Caiio de Palma, Symon Lagoon, Agua Dulce, Pereira,Chinip6 and
Lagunas."466
B 10. The main tasks carried outby the Colorado Guard,as was explained in
the 1895Report, included seizures,charging import taxes, preparing reports for
judicial purposes, granting agricultural permits to the inhabitants of the
maritime mille and carrying out commissions.4h7 The 1895 Report mentioned
that three boats transporting goods imported from San Juan del Norte,
Nicaragua, had attempted to elude the vigilance of the Guard to avoid paying
import taxes but were apprehended, and that three boats transporting rubber
illegallyextracted fromCosta Rican forests were seized.468
464Ibid467
465 (SaJoHC:rnprenNaclona1891),5(1-51
466ReporofRafaelCruz, CommandanthPostRio ColortutheGeneraInspecofTreasury,Note No.
89, 1March1805:AnncxeVol6Annex212.
457Ibtd.
468lbidB11. In 1897 the Government of Costa Rica acquired a new steamer, which
was named CVlirP-ipa dnd possessed a rapid fire cannon. The Chirreh was
charged to render servicefromTalamancato SanJuan del Norte, carryingmail
and passengers.469 Other steamers mentioned in the 1897 Report of the
Secretary of Warand Navy included the following:
The Turrialba ,hich carried two Nordfelt machine guns and a
one-poundcannon.
The Poas, which was the largest and had two Drig Systemrapid
fire cannons,one of one pound and the other of six pounds.
The Nicoya, which was stationed to serve to the Barra del
Coloradoroute.
Other small steamers, the Doctor Castro,the Puntarenas and the
General Fernandez were stationed in Puntarenas and the Gulf of
Nicoya.470
B12. With the purposeof unifiing and reorganizing the diverse regulations
governing the Revenue Guards and re-establishing the Fiscal Tribunal, a law
forthe Organization af the RevenueGuardswas promulgated in 1923.471
B13. Accordingto article 1 of this Law, the Revenue Guards form a
specialized corps for the vigilanceand protection of the interests of the Public
Revenue.477Article 2 states that the Revenue Guards are part of the public
force andare therefore subject to military discipline.473
B14. Article 6 specifies that the Revenue Guards will take on different
names, according to their particular functions, such as Customs, Ports,
Telegraphs,Border, Forests, etc. Accordingto articles 7 and 8, the Guardsare
considered as either fixed or ambulatory: those of Customs and of Ports are
fixed and all the others ambulatory.474
469 Report of theInspectE.G.Chrnbcr1alttheSccrctaryWar andthNavy oCosta Rlc1897,
MemoriadeGucrray Marinacorrespundleaficconomicode 1897-(SaJose. T~pogmaaclonal,
1898),195:Annexe, olAnncx 213.
470 Ibld.
471Annexes,Vol6, Annex217., SegundoSetncAtiode 1923(SanJost. lrnprentaNa14231306-325:
472 Ibld,306.
473 Ibld.
474Ibld, 397.B 15. Article 9 specifiesthe purposes of the Guards:
"a) The investigation and prosecution of any infraction of the Treasury
laws and, in particular, the Customsand the monopolies.
b) The pursuit and capture of thosc suspected of faultsor crimes against
the Public Treasuy.
The seizureof any object that exists contravention of a Treasurylaw.
c)
d) Policingand surveillance of roadsandpaths.
e) Maintenanceof Public Order.
fj Providing assistance tothe authoritiesand otherpublic functionariesin
the exercisingof theirfunctions.
g) Repressingillegal games"475
B 16. Article 18 provides that "the vessels of the Guards will attend to the
transportation of merchandize and passengers in thosp elaces where ther ere
no such private initiatives" and that the Department of TreasurywiIIestablish
the corresponding tariffs.47 6 rticle 19 made the same provision for mail and
telegraph semices ,477
B17. It canbeappreciated that the roles and functions of the Revenue Guards
went beyond fiscal control duties. Indeed, they also carried out general
policing and surveillance, includingborderprotection, aswell astransportation
of rnerchandize,mail and people.
B 18. With the abolition of the armed forces in 1949,Costa Rica'sprotection
of its territorial integritywas assigned tothe police. Article 12of Costa Rica's
Political Constitution provides:
"Article 12 The Armyas permanent institutionis abolished. There shall be the
necessary police forces for the surveillance and the preservation of the public
0rder."~78
475 lbid
476Ibid,309.
477Ibid310
478Constitutionthe Republ~cof Kica8 November1949,BilingEditioSanJost:CornisiNacional
parael McjornmienlodelaAdministralaJust~c2,001,IAnnexesVol6,Annex218.B19. Following thepromulgation of the Law for the Creation of the Rural
Assistance Guard (Law No. 4639 of 23 September 1970), the customs and
other police controls that were carried outby the Revenue Guards, as well as
its personnel, were transferred to the newly created RuralAssistance Guard.
This Law established the following:
"Article 2 The Rural Assistance GuardCorps will havejurisdiction in the entire
Republic. To the RuralAssistance Guard willbe incorporated the Revenue Guard and
the Villageand TownPolice."479
B20. LawNo. 4639of 1970also establishedthe tasksand responsibilities of
the RuralAssistance Guard, many of which correspondedto those formerly
performed by the RevenueGuard, For example, the Lawestablishedby article
3 the following:
"Article 3:
The RuralAssistance Guard willhaveas functions:
.. .
c) Ensure the observance ofthe laws againstcontraband,narcoticsand the
ones protecting the public treasury;
dj Cooperate in the guard and surveillanceof the borders,coasts, customs
and ports;
..
Provide due collaboration to the Ministry of Treasuy, when it is
1)
required, regarding the vigilanceof the public revenue;
...
For the proper performanceof itsfunctions,the RuralAssistanceGuard
shall have the same powers and attributions in regards .to arrest,
detention, seizure and search that currently possess the Village and
TownPoliceand the RevenueGuard"480
B21. Law No. 4639 of 1970 was amendedby Law No. 4766 of 28 May
1871,whichadded two new sub-paragraphs to article 3:
"n) To perform the same juridical acts that formerly appertained to the
Village and TownPolice and the Revenue Guard; and .
) To exercise all the other responsibilities thain accordance with the
juridical order where assigned to the authorities mentioned in the
479Culeccthdcleyesdecretacuerduyrcsoluclones,SeguSemestr19701Tomo [San losIlrlprenta
National1970)564AnnexesVol6,Annex220
480 1bld 565. previous paragraph, except for those that refer to the municipal
regimehr'481
B22. Withthe promulgation of the General Law of Police (LawNo. 741 0 of
26 May 1994)the Rural AssistanceGuard Law No. 4639 was abrogated, but
the Rural Guard Corps was retained as one of the police bodies regulated by
the new Law No. 7410. Article6 of Law No. 7410 establishes Costa Rica's
different police bodies:
"The following will be the police bodies, in charge of the public security: the Civil
Guard, the Rural Assistance Guard, the Police in charge of the control of non-
authorized drugsand connected activities;the Border Police, the Immigration Police,
the Fiscal Control Police, the State Security Direction, the Transit Police, the
Penitentiary Police and the other police corps whosecompetence is foreseen in the
Law."482
As can be seen, LawNo. 7410 created the Fiscal Control Police as a
B23.
specialized corps in charge of fiscal and revenue control, thereby removing
those functions from the Rural Assistance Guard. Articles 27 and 28 of Law
No. 7410established the new FiscalControl Police. Article 28 provided that:
"The Fiscal ControlPolice willhave the followingobligationsand attributions:
a) Ensurecompliance with the fiscal laws.
Assist the Ministry of Treasury in all tasks required to control tax
b)
evasion.
c) Carry out all type of searches in order to persecute crimes of fiscal
nature.Ajudicial authorizationwill berequiredto perform searches and
the otherlegalrequirements must be complied with.
d) Inspect commercial establishmentsat anymoment.
e) To ensure the respect of the Political Constitution,the international
treaties, thelaws and related regulation~~~'~~3
B24. Law No. 7410 also created tKeBorder Police, with the following
responsibilities:
4R Colecc~bdeLeyes, DecreAcucrdosyResoluc~ones.PrimerSernestre,(Sarlost. Irnprenta
Naciona19711,1170:Annexes,Vol6, An221.
482 Cole~c16nde ledecretyreglarnentoSemestre1994,ITom (SaJostImprentaNacional,1995),L-
260:Annexes,Vol6,Annex226.
483 Ibid,L-265-66."Article24. Responsibilities
The following willbe the responsibilitiesof the Border Police:
a) To watch and safeguard the terrestrial,maritimeand aerial borders,
including the public buildings where immigration and customs
activitiesareperformed.
b) To ensure respect for the Political Constitution, the international
treaties and thelaws that guaranty the integrityof the national territory,
the territorial waters,the continental shelf, the patrimonial seaor the
exclusiveeconomiczone,theaerial space andthe exerciseof the rights
that correspondto theState."484
B25. As can be seen, since 1994 the revenue or fiscal control tasks were
taken over by the new Fiscal Control Police,which does not possess boats or
vessels to performits duties in waterways such as the SanJuan. Nevertheless,
Law No. 7410 establishes the principles of cooperation, collaboratjon and
supplementation between the difl'erentpolice bodies. Article 8 of Law No.
7410 states the following:
"Article 8.Responsibilities
The following are general responsibilitiesof all police corps:
-..
e) To act according to the principleof cooperation andmutual aid, with a
view to proper coordination,inaccordance with the instances and the
organs foreseento that effect.
f) To act, ina supplementary way, in the performance of the necessary
emergency acts,when confrontedby situationsthat shouldbe attended
by a specializedpolice corp."485
B26. According to thisprovision, the absence ofthe Fiscal Police in anypart
ofthe country can be made up forby other police corps. Inthe case of the San
Juan border area, in the absence of theFiscal Police, its revenue control and
related duties can be performed by the Rural Guard and the Border Police.
Indeed it was these police corps who continued maintaining presence on the
SanJuanborder zone,carryingout general policing, protectingthe territory and
assistingthe Costa Ricanpopulation in that region.
484Tbid, -255.
485lbid,L-261.B27. Furthermore, in the year 2000 the National Coastguard Service was
created asa new police body specificallycharged with the performance of police
functions in allof the country's navigablewaterways. Article 2 ofthe Law of
Creation ofthe National Coastguard Service (Law No. 8000 of 5 May 2000)
specifically charges thCoastguard Service to collaboratewith theadministrative
andjudicial authoritiesinthe protectionof the law.This articlereads:
"The responsibilitiesf the mational Coastguard]Service are:
-..
g) Tocollaboratewith theadministrativeandjudicialauthoritiesincharge
of protecting thenaturalresources, fighting againstthe illicittsaff~cof
drugs and relatedactivities,aswell as againstthe illegalimmigration,
the armstrafficandother illicitactivitie~."~E6
B28. Thus itcanbe appreciated thatcurrently theNational Coastguard Service
isentitled to assisttheFiscal Police, theRural Guardand the Border Police in
their responsibilities in tSanJuan &ver borderarea and inthe restofthe Costa
Rican towns and villages that requirethe SanJuan as a means of access.
B29. More recently, in the Regulations for the Organization of the Minishy
of Public Security of 1December2004, the work of the Civil Guard, the Rural
Assistance Guard, the Police in charge of the control of non-authorized drugs
and connected activities, and the Border Police was unified under the direction
of the Ministry of Public Security. Articles 52 and 54 of these Regulations
present an integrated approach to thework of these bodies:
"ARTICLE 52: the CivilGuard, the RuralAssistance Guard the Policein charge of
the controlof non-authorizeddrugs and connected activities,and the Border Police
willdepend on the Ministry of Public Security,in accordancewith whatis stipulated
inarticle 6 of theGeneralLawof Police number 7410 and its reforms,as wellaswith
what is stipulatedinLaw No 8000 thatcreatesthe National CoastguardService,and
intheExecutiveDecree No 23427 MP. ThePublicReserveForcewillalsobe ascribed
when it is summoned on a temporarybasis.
...
ARTICLE 54: The Rural AssistanceGuard,the CivilGuard,and the Border Police,
as componentsof the PublicForce of this Ministry,will act under one singlepolice
command, in each region within the nationalterritory that is determined by the
-
48hDiariOficiLaGacetaNo99,AlcarrNo. 3(SaJoselrnprenNationa24May2000)l:AnnexesVol
6,Annex230.Ministsy in accordance with thecompetences and rcsponsibilities thaare grantedto
theminthe GeneralLaw of Policeand its ref~rrns."~g~
B30. ThisAppendix has demonstrated the following:
(a) Although the Revenue Guards were originally createdwith the
task of controlling contraband and illegal production of goods,
theirtasks and duties were moreample, and in the areas of their
jurisdiction, particularly in therural and border areas, induded
general policing and even borderprotection.
(b) Itwas the Revenue Guard who carried out fiscal control, border
protection and other police tasks in the San Juan River bordering
region, and who effectively navigated in armed vessels and
carrying their service arms.
The Revenue Guards existed as such since their creation during
(c)
the 19th Century until 1971, when they were absorbed by the
newly created Rural Assistance Guard.
The RuralAssistance Guard wasthe main police body present in
(d)
the rural and bordering areas, and, together with the Border
Police, continued carrying out ample policing duties, including
thosethat formerly appertainedto the RevenueGuards.
(e) TheRuralAssistance Guard andthe Border Police, supplemented
by the support of the National Coastguard Service, are the police
corps legally entitled in modem times to carry out the tasks,
functions and responsibilities that appertain to the Revenue
Guard.
( Under the auspices of the Public Force, the work of these police
corps is more closely coordinated, acting underone singlepolice
command inthe regions where they are present.
4K76,Annex234.aGacetaNo.6AlcancNu. I (SanJol~nprenNaclonal,January2005)AnnexesVol CERTIFICATION
I havethe honour to certifthat the documents annexe o this Mernos~alare
truecopiesand conform to theoriginaldocumentsandthatthe translationsinto
English made by Costa Ricaareaccurate translations.
AmbassadorEdgar Ugalde Alvarez
Agent of Costa Rjca
29 August2006 LIST OFANNEXES
(VOLUME2)
Agreements,AwardsandJudicialDecisions
Annex Title Date
1 Capitulaci6nconDiego Gutikrrezparala 29 November I540
conquista de la Provincia deCartago
(extracts) Source:MM de Peralta, Costa
Rica, Nicaraguay Panama enel Siglo
WI. SE~Historiay YUSLimites
(Madrid:LibreriaM. Murillo, 1883),101-
103
2 Real ProvisiondeSS. MM el Emperador y 6 May 1541
la ReinadoiiaJuana sobre10slimites de la
gobernacion de Cartago, y en particular
sobre 10sdel Desaguadero 6rio de§an
Juan deNicaragua (extracts)
Source: MM de Peralta, Costa Rica
Nicoragursy Panumden elSiglo XVI.Su
Historiaysus Limites
(Madrid:Libreria de M. Murillo, 18831,
125-127
3 Titulode AlcaldeMayor de lasProvincias
17May 1561
de NuevaCartagoy Costa Rica, enfavor
delLicenciado Juan Caval1on.Limites de
estasProvincias(extracts)
Source:MM de Peralta, Costa Rica
Nicaragua y Panamcien el SigIo XVI. Su
Historiay susLimife,~
(Madrid:Libreriade M.MuriHo, 1883),
E94-195
4 United States-G~eatBritain, Convention Washington, D.C.,
Concerning a Ship Canal Connectingthe 19 April 1850(in
Atlantic and Pacific Oceans (Clayton- force 4 July 1850)
Bulwer)ArticlesI,IV,VI
Source:104CTS41 ; 38BFSP 45 Treatyof Limits (Caiias-Juirez) Managua, 6 July
Source:ww,manfut.org/cronologia/ 1857(unratified)
t-canasjuareh& l
6 Convention of Peace (Cafias-Martinez) Rivas, 8December
Source:49 BFSP1222 1857(Arts 8, 9
subjectto
ratification,
unratifiedremainder
in force on
signature)
Costa Rica-Nicaragua,Treaty of Limits SariJose,15April
(Caiias-Jkrez) 1858
(a)Originalversion in Spanish
Source: Coleccibnde lasLeyes,
Decretos y Ordenes eexpedidospor los
Supremos Poderes Legislativey
EjectdtivodeCosta Ricaenel aiiude
1858, TomoXV,(San Jose: Imprenta
de laPaz, 1&71),175 - 188
(b) English translation: Costa Rican
version submitted to Cleveland
Source: P Phez Zeledon, Argument on
the Question ofthe Valii~ ofthe
Treaty oflimitsbetween Costa Rica
and Nicaragu aWashington,D .C.,
Gibson Bros, 1887), DocumentNo. 1,
185
(c) English translation: Nicaraguversion
submitted taCleveland
Source: The Caseof Nicaragua, 1887,
AppendixB, 34
(d) English translation
Source: 48 BFSP 10498 Nicaragua-Costa Rica-FBelly,Convention Rivas,1May 1858
relative to the Concession for an Inter-
oceanicCanal by the River SanJuan and
the Lake of Nicaragua, Article 1
Source: F. Belly, Carte d'6tudepoule
truceetleproJilde Canal de Nicaragua
(Paris: Chez DalmontctDuod, ~diteurs,
18581,Document 11,19-27
9 Costa Rica-Nicaragua, Preliminary SanJose, 13July
Convention on a Scientific Survey(Volio- 1868
Zelaya).Article1
Source:JM Bonilla, Coleccidnde Tratudos
Internacionales.(Managua:Tipografia
Internacional19091, 365-366
10 Costa Rica-Nicaragua,Treaty of San Josk,14August
Commerce(Volio-Zelaya)Articles 1,2 1868
Source:JM Bonilla, ColecciddenTratados
Inte~rzacionale(Managua: Tipografia
Internacional,909),386-392
11 Republic of Nicaragua-M. Chevalier, Paris,6 October
Contract fortheExcavation of an
1868
Interoceanic Canal across CentralAmerica
(Ayon-Chevalier)Articles 53-56
Source:6 1BFSP 1266(French)
12 Costa Rica-Nicaragua, Convention SanJosk,21
Additionalto the Preliminary Convention December 1868
on a Scientific Surveyof 13July 1868 (unratified)
relative to timprovement of the
Colorado orSan Juan Rivers (Esquivel-
Rivas).Article 2
Source:JM Bonilla, Coleccidn cle rarados
Internacionales(Managua: Tipografia
Internacional, 19091,369-371
13 Costa Rica-Nicaragua,Treaty for the SanJose, 18June
1869
excavation of an InteroceanicCanal
(Jimknez-Montealegre)Article 1
Source: 61BFSP 114414 Costa Rica-Nicaragua, Convention to Guatemala, 24
submitto the arbitration of the December 1886
Government of the United States the
question inregard to thvalidityof the
treaty ofApril15, 1858(Esquivel-Roman)
Source: 168CTS 371
15 Costa Rica-Nicaragua,Convention (Soto- Managua,26 July
Carazo) 1887 (unratified)
Source: Memoria anual dela Secretariade
RelaciotaesExterioresy CarterasAnexas
1888 (SanJosk: IrnprentaNational, 1888)
16 Cleveland Award uponthe validity of the Washington,D.C.,
Treatyof Limits of 1858 between Costa 22 March 1888
Rica andNicaragua
Source: Papers relatingto theForeign
Relationsof the UnitedStatestransmitted
to Congress,with the annual messageof
the PresidentPar , December 3,1888.
(Washington,D.C.: Government Printing
Office,1889.)
17 Costa Rica-Nicaragua, Delimitation SanSalvador,27
Convention (Pacheco-Matus)Article 2 March 1896
Source: Papm Relating to theForeign
Relationsof the UnitedStates
(Washington, D. C.:GovernmentPrinting
Ofice, 18971,191
I8 FirstAwardrendered by the umpire,EP 30 September 1897
Alexander,SanJuan del Norte on
September 30,1897,in the boundary
question,between Costa Rica and
Nicaragua
Source: H. LaEontaine,Pasicrisie
Internationill1794-1900:Histoire
DocumentoiredesArbitrages
Internatiotaazs(1902,reprinted1997,
MartinusNijhoff,The Hague),529-53219 United States-Nicaragua, Conventionfor Washington,D.C., 8
the constructioof a Canalby the River February 1913
SanJuan (Chamorro- Weitzel)
Source: Republicof Costa Rica, Complaint
befire theCentra Almerican Courtof
Jusrice(Washington, D.C.: Presof Gibson
Bros.,Inc.1916)Annex L, 82-86
20 United States-NicaraguaConvention for Washington,D.C.,5
the construction of a Canalby the River August 1914
San Juan (Bryan-Charnorro)
Source:220 CTS 215
21 Republi ofCosta RiclavRepublio cf 30 September1916
Nicaragua, CentralAmerican Court of
JusticeOpinion and Decision of the Court
Source: (1917) 1 1AJIL 181-229
22 Costa Rica-Nicaragua, Convention forthe San Josk, 5April
Canalization of the SanJuan River 1940 (in force 21
(Cordero-Z~iftigArticles3, 10 June 1940)
Source: Ministerio Relaciones Exteriores,
Convencibnpara la canalizationdel Rio
SunJuany ofrm purtic~faresrelacionadus
con dicha aanalizac SdanJosk:
IrnprentaNational,1940) 15-22
23 Costa Rica-Nicaragua,Pact ofAmity Washington,D.C.,
(Sevilla-Esquivel) 21February1949
Source: 1465UNTS 221 (in force 15July
1949)
24 Costa Rica-Nicaragua,Agreementpursuant Washington, D.C., 9
to Article IV of tPactof Amity January1956
(Fournier-Sevilla)Article1,4
Source: 1465UNTS 233,234
25 Costa Rica-Nicaragua,Agreement of Barradel Colorado,
Understanding betweenthe Ministries of 5June1994
Tourismof the Republic of Costa kca and
theRepublicof Nicaragua(Roesch-
Guzrnhn)
Source:Copy of the originalFI
26 Costa Rica-Nicaragua,Agreementof Barra delColorado,
Understanding between the Ministrieof 5 June 1994
Tourismof the Republicof Costa Rica and
the RepublicofNicaraguaon the Tourist
Activityin the Border Zone of the San
Juan River(Roesch-Guzrnkn)
Source: Copy of the original
27 Armyof theRepublicof Nicaragua- La Cruz, 8
Ministry ofPublic Securitof theRepublic September 1995
of Costa Rica,Joint Communiquk (Cuadra-
Castro)
Source:Copyof the original
28 Ministryof Defenceof Nicaragua-Ministry Managua,30July
of Government, PoliceandPublic Security 1998
of Costa Rica,Joint Communique(Cuadra-
Lizano)
Source: Copy of the original
29 CostaRica-Nicaragua, Agreement(Tovar- Afajuela,26
Caldera) September2002
Source:2197UNTS 78 (VOLUME 3)
Diplomatic Correspondence
Annex Description Date
30 CostaRica Foreign MinisterLorenzo 1February18713
Montufarto Nicaraguan ForeignMinister
Tomis Ayon, 1February 1870,reproduced
inP.PerezZeledon, Argument on the
Questionof .#heValidi~of theTreatyof
Limitsbetween Costa RicaandNicaragua
(Washington,D.C.:Gibson, 1887)274-8
31 Secretaryof ForeignAffairsof CostaRica, 29 June 1886
Ascensibn Esquivel to Secretary of State in
chargeof the ForeignAffairsof the
Republic of Nicaragua,Francisco
Castellbn,29 June 1886,reproduced in
Memoriade la Secretariacd es/oci~;raes
Exterioresy CarterusAnas de la
Republicsde Costa Rica(SanJose:
Imprenta Nacional, 1887)
32 Nicaraguan Foreign Minister, Francisco 3 August 1886
Castellbn, to Costakcan Foreign Minister,
Ascension Esquivel,3 August 1886,
reproduced in Memoria de laSecretariade
RelacionesExteriot-ey Carteras Anexas
de la Repziblicade CostaRica(San Josk:
IrnprentaNacional,1887)
33 Secretafy of Foreign Affaiof Costa Rica, 19August 1886
AscensibnEsquivelto Secretary of Statein
chargeof the ForeignAffairs of the
Republic ofNicaragua, Francisco
Castellbn, 19August 1886,reproduced in
Memoriade la Secretaria deRelaciones
Exterioresy CarterasAnexasde la
Rephblicade Costa Rica (San Josk:
ImprentaNacional, 1887)Fl
34 Costa Rican ForeignMinister,Ascensihn 3 1August 1 886
Esquivel, to Nicaraguan Foreign Minister,
Francisco CastelIbn,31August 1886,
reproduced in Memoriade la Secretariade
RelacionesExterioresy Carteras Anexas
de laRepziblicade Costa Rica (SanJosk:
Imprenta Nacional, 1887)
35 Secretaryof State in chargeof the Foreign 18October 1886
Affairs ofthe RepublicofNicaragua,
Francisco. CastellontoSecretary of
ForeignAffairs of Costa Rica,Ascension
Esquivel, 18October 1886, reproduced in
Memoria de la:Secretariade Relociones
Exterioresy CarterasAnexas de la
Repziblicade Costa Rica(SanJosk:
Imprenta Nacional, 1887)
36 Letterfrom Fernando Guzmanto Costa 22 June 1887
Rican Foreign Minister, reproduced in P
Perez Zeledon,Argument or?theQuestion
ofthe Vulidipof theTreaty ofLimits
between CostaRica and Nicaragua
(Washington,D.C.:Gibson, 18&7),9-11
37 Secretaryto the Dietofthe Mayor 27 July 1897
Republicof Central America to the
Ministerof ForeignAffairsof Costa Rica,
27 July 1897,reproduced inMemoria de
Relaciones ExterioresGrucia, Justicia,
Cultoy Beneficiencia de EaRephblica de
CostaRicca.(San Jost:Tipografia
Nacional, 1897) 12-15
38 Costa Rican Minister Plenipotentiary in 17April 1913
Washington,D.C., J.B. Calvoto United
States Secretary of State, WilliamJennings
Bryan, 17April 191 3,reproduced inThe
Republicof Costa Rica againstThe
Republicof Nicaragua, Complain before
the CentralAmericanCourt ofJustice
(Washington,D.C.: Press ofGibson Bros
Inc. 19161,70-72Costa Rican Ministerin Nicaragua,P. 24April 1913
CabezasGbmezto Nicaraguan Foreign
Minister,Diego M. Charnorro,27 April
1913,reproduced inTheRepublic of Costa
Rica againstThe Republicof Nicaragua,
Complaint befi~retheCentral American
Court ofJustice(Washington,D.C,: Press
of GibsonBrosInc. 1916),68-69
NicaraguanAmbassador in Costa Rica, 12 November 1980
Javier Chamorro Mora, to Costa Rican
Foreign Minister,BemdNiehaus Quesada,
Note No. E.N.1323180
Costa RicanForeign Minister, Fernando 8 June 1982
VolioJirnenez,to Nicaraguan Chargk
d'Affaires a.i. to Costa Rica, Oscar Ramon
Tellez,Note No. D.M.133-82
Costa Rican Foreign Minister,Fernando 16July 1982
VolioJirnenez,to Nicaraguan Chargi:
d'Affaisesa.i,to Costa Rica, Oscar Ram611
Tkllez,Note No. D.M. 126-82
Costa Rican Foreign Minister, Fernando 20 July 1982
VolioJimenez, to Nicaraguan Charge
d'Affairesa.ito CostaRica, Oscar Ram6n
Tellez,Note No. D.M. 127-82
Nicaraguan Char@ d'Affaires a.i. to Costa2August 1982
Rica, Oscar RamonTillez, to Costa Rican
Foreign Minister,FernandoVolioJimknez,
Note No. E.N. 789182
Costa Rican Foreign Minister, Fernando 19August 1982
VolioJimenez,to Nicaraguan Chargk
d'Affaires a.i to CostRica,Oscar Rambn
Tkllez,Note No. DM 189-82
Ambassadorof Nicaragua to Costa Rica, 6 September 1982
Rogelio Ramirez Mercado, to Costa Rican
Foreign Minister,FernandoVolioJirnknez,
Note No. E.N. 865182p-l
47 Costa Rican Foreign Minister, Fernando 8March 1983
VolioJimknez, to NicaraguanAmbassador
to Costa Rica, Rogelio Rarnirez Mercado,
Note No. D.M. 014-83
48 Nicaraguan ForeignMinister, Ernesto Leal, 21 March I994
to Costa Rican Foreign Minister,Bernd
Niehaus Quesada,Note No. 940284
49 Acting NicaraguanForeign Minister, 11August1998
Carlos R.GurdiAnDebayle,to Costa Rican
Foreign Minister,Roberto Rojas Lbpez,
Note. No. VM/08/0685198
50 Costa Rican Foreign Minister, Roberto 12August 1998
Rojas Zbpez,to Acting Nicaraguan Foreign
Minister, Carlos R. Guri nDebayle, Note
NO.DM-097-98
51 Acting Nicaraguan Foreign Minister, 28August 1998
Carlos RobertoGurdian, to Costa Rican
Foreign Minister, Roberto Rojas Lbpez,
Note No. MRE/98/0263 8
52 Costa kcan Foreign Minister,Roberto 7 September 1998
Rojas Lopez,to Nicaraguan Foreign
Minister,Eduardo Montealegre
53 Nicaraguan Foreign Minister,Eduardo 30 September 1998
Montealegre, toCosta RicanForeign
Minister,Roberto RojasLopez, Note No.
[illegible]
54 Costa Rican Deputy Foreign Minister, 11May 1999
WalterNiehaus,to Nicaraguan Deputy
Foreign Minister,GuillermoArgiello
Poessy, NoteNo. DVM: 607 -99
55 Nicaraguan Deputy Foreign Minister, 12May 1999
GuillermoArgiielloPoessy,to Costa Rican
Deputy Foreign Minister,WalterNiehaus,
Note No. MRE/99/01347Costa &can Foreign Minister,Roberto 21January 2000
RojasLbpez, to Nicaraguan Foreign
Minister, Eduardo Montealegre,NoteNo.
DM-015-2000
Nicaraguan Foreign Minister, Eduardo 28 January2000
Montealegre, to Costa Rican Foreign
Minister,Roberto Rojas Lbpez,Note No.
MREIDM13882101100
Costa Rican Foreign Minister,Roberto 15 February 2000
Rojas Lbpez,to Nicaraguan Foreign
Minister, Eduardo Montealegre, NotNo.
DM-079-2000
Nicaraguan ForeignMinister, Eduardo 16February 2000
Montealegre, to CostaRican Foreign
Minister Roberto RojasLbpez, Note No.
M REIDM13965/02/00
Permanent Representative of Costa Rica t3 March 2000
the Organization ofAmerican States,Amb.
Hernan R. Castro,to the President the
Permanent Councilof the Organizationof
American States,James SchofieldMurphy
Costa kcan ForeignMinister, Roberto 10April2000
RojasLopez, toNicaraguanForeign
Minister,EduardoMontealegre, NoteNo.
DM-125-2000
Nicaraguan Foreign Minister, Eduardo 6 May2000
Montealegre, to CostaRicanForeign
Minister,Roberto Rojas Lbpez,Note No.
MRE/DhW43 66/04/00
Costa Rican Foreign Minister, Roberto 22 May2000
Rojas Lbpez, to Nicaraguan Foreign
Minister, Eduardo Montealegre,Note No.
DM-165-2000
President of Costa Rica, Miguelhgel 28 June 2000
RodriguezEcheverria, toPresident of
Nicaragua,Amoldo AlernanLacayoPresidentof Nicaragua, ArnoldoAleman 29 June 2000
Lacayo, toPresident of Costa Rica, Miguel
hgel Rodriguez Eheverria
President of CostaRica, MiguelAngel 29 July 2000
RodriguezEcheverria, to President of
Nicaragua,Arnoldo Alemh Lacayo
Presidentof ~ic&a~ua,AmoldoAlemin 3 August 2000
Lacayo, to President of Costa Rica, Miguel
hLngelRodriguezEchevesria
CostaRican Acting Foreign Minister, 28 September 2000
Elayne Whyte,to Nicaraguan Acting
Foreign Minister,JoskAdAnGuerra, Note
NO.DVM-420-00
NicaraguanActing Foreign Minister,Josk 18October 2090
AdAnGuerra,to Costa Rican Foreign
Minister,RobertoRojas Lbpez,Note No.
MRENM-JU483/1O/OO
Costa Rican DeputyForeign Minister, 18April 2001
ElayneWhyte,to NicaraguanForeign
Minister, Francisco XavierAguirre Sacasa,
Note No. DVM-111-01
Costa Rican ForeignMinister>Roberto 9 May 2001
Rojas Lbpez, to Nicaraguan Foreign
Minister,Francisco XavierAguirre Sacasa,
Note No. DM-297-2001
Nicaraguan Foreign Minister, Francisco 3August2001
XavierAguirreSacasa,to Costa Rican
Foreign Minister, Roberto Rojas Lopez,
Note No. MREfDM-Jl/08 18/08/01
CostaRicanForeign Minister,Roberto 26 September 2001
RojasLbpez,to Nicaraguan Foreign
Minister,Francisco XavierAguirre Sacasa,
NoteNo. DM-355-2001CostaRican ForeignMinister, Roberto 11March 2002
RojasLbpez,to Nicaraguan Foreign
Minister,Norman CalderaCardenal,Note
NO.DM-030-2002
Nicaraguan Foreign Minister,Norman 23 April 2002
Caldera Cardenal,to Costa Rican Foreign
Minister,Roberta RojasLbpez,Note No.
MREDM-JI/481/04/02
CostaRicanEmbassy inNicaragua to 21 May 2002
Ministry of ForeignAffairs ofNicaragua-
General Directoratefor Latin America,
Note VerbaleNo. ECR-079-5-2002
27 May 2002
Nicaraguan Deputy ForeignMinister,
Salvador StadthagenIcaza,to Costa Rican
DeputyForeign Minister,Elayne Whyte
Gomez,Note No. MREIDV-JI10068105/02
NicaraguanMinistry of Foreign Affairs, 29 May 2002
Directorate of Sovereignty,Territoryand
International LegalAffairsto Costa Rican
Embassy in Managua, NoteVerbaleNo.
MREIDGSTAJII3 35/05/02
CostaRican Foreign Minister,Roberto
5August 2002
TovarFaja, to Nicaraguan Foreign
Minister, Norman Caldera Cardenal, Note
NO.DM-202-2002
Costa Rican ForeignMinister,Roberto 28 September2095
Tovar Faja, to Nicaraguan Foreign
Minister,Norman Caldera Cardenal,Note
NO.DM-462-05
CostaRican Foreign Minister,Roberto 20 October 2005
TovarFaja, to Nicaraguan Foreign
Minister,Norman Caldera Cardenal, Note
NO.DM-484-0582 NicaraguanForeignMinister,Norman
9November 2005
CalderaCardenat,tCosta Rican Foreign
Minister,RobertoTovarFaja,NotNo.
MREDM-JT/I284/11105 (VOLUME 4)
Annex Description Date
83 SergioGerardo Ugalde Godinez 5 May 2001
Deed No. 22
84 CarlosLaoJarquin 27January 2006
Deed No. 146-1
85 GeovanyNavm Gm 27January 2006
DeedNo. 147-1
86 Pablo Gerardo HernhndezVarela 27 January2006
DeedNo. 148-1
87 Santos Martin ArrietaFlores 27 January 2006
DeedNo. 149-1
88 Carlos LuisAlvarado Sanchez 27 January 2006
DeedNo. 150-1
89 Daniel Soto Montero 27January 2006
Deed No. 151-1
90 Luis Angel JirbnAngulo 28 January 2006
Deed No. 152-1
91 Marvin Hay Gonzalez 28 January 2006
Deed No. 153-1
92 Armando Perla Perez
28 Januar2006
Deed No. 154-1
93 WindelHodgson Hodgson 28 January2006
Deed No. 155-1pq
94 Jose Granados Montoya 29 January2006
DeedNo. 156-1
95 Daniel Reese Wise 29 January2096
Deed No. 157-1
95 Wilton Hodgson Hodgson 1February 2006
Deed No. 160-1
97 JavierSancho Bonilla 8February 2006
Deed No. 162-1
98 AnaGabriela MazariegosZarnora 14February 2006
DeedNo. 164-1
99 KattiaPatricia CorralesBarboza 16 February2006
DeedNo. 167-1
100 SandraDiazAlvarado 16February2006
DeedNo. 168-1
I0I DianeGomez Bustos 16 February2006
DeedNo. 169-1
102 LuisYanan CoreaTorres 16February2006
DeedNo. 171-1
I03 Ruben Lao Hernindez 17February 2006
Deed No.172-1
104 WalterNiehaus Bonilla 23 February 2006
DeedNo. 173-1
105 Victor Julio VargasHernandez
6 July 2006
DeedNo. 203-1
106 Leone1Morales Chac6n
DeedNo.204-1107 ErickMaikolMartinez L6pez 6 July2096
Deed No. 205-1
108 JoskMorenoRojas 6 July 2006
DeedNo. 206-1
109 JosefaAlvarezArag6n 6 July 2006
Deed No. 207-1 (VOLUME 5)
Pressreports
Annex Title Source Date
110 "Sandinistaguards attack La Nucibn, 6 November 1980
CostaRicans" San Josb
8 November 1980
111 "Nicaraguaconditions La Nacibn,
navigationon the waters San Josk
of theSanJuan River"
112 "Foreign AffairsMinister La Nacidn, 9 November1980
says that the Cafias-Jerezan Josi:
Treatyis unquestionable"
113 "New protest to La Nacidn,
Nicaragua" San Josk
124 "Freepassagealong the La Nacibn,
SanJuanRiver is SanJose
demanded"
115 "Nicaraguans announce La Nacion, 17June 1982
controlon the San Juan" San Jose
116 "Problems on theSan La IVacibn, 4 July 1982
Juan Rivercontinue" SanJose
117 "Nicasconfiscate materialLa Nacidn, 24 February 1983
fromjournalistson thy SanJosk
SanJuan"
118 "Foreign AffairsMinistry La hracidn, 7 March 1983
will protest again SanJosC
to Nicaragua''"Todaywill takeplacea LaNacibn, 4 April1983
highlevelmeetingwith SanJosk
Nicaragua"
"Meetingwith La Repziblica, 5 April1983
Nicaraguansfailed" San Josk
"Nicaraguaguarantees La Repziblica, 15April1983
freedomon theSan San Josk
JuanRiver"
"Ramirezoffersgradual La Nacibn, 15April I983
respecttonavigationon SanJosk
the SanJuan River"
"Conflictwiththe LaRepziblica, 5March1994
Nicaraguansdue to San Josk
tourismon theSan Juan"
"Ticoswere machine- LaNacibn, 8 March 1994
gunned attheSan SanJosi:
Juan River"
"Problem withTicos La Prensa, 8March1944
solved" Managua
"_5 tonavigateonthe La Nucibn, 10March1994
SanJuanRiver" San Josk
"Touriscardaffectsus, Barricada, 13March 1994
theticos say" Managua
"CostaRicademands La Repziblicca, 17March 1994
Nicaraguans to withdraw SariJose
chargeonthe SanJuan"
"ForeignMinisterswill La Nacicin, 13April1994
analyzetransion the SanJosk
San Juan"
"Niehausrulesout La Nacidn, 20April 1994
arbitration" SanJosk
"Borderdisputewith La Nacidn, 16 July1998
Nicaraguans" SanJose
"Alernin:Ticosout" ElNuevoDiariq 17 July1998
Managua"Costa RicanGuard La Tribuna, 17July 1998
banned fromnavigating Managua
an the SanJuan River
with arms"
"Prohibitionlifted" La Nacidn, 17 July1998
SanJosk
"Aleman Reiterates LahaLihre, 23 July 1998
Sovereigntyover the San Josk
SanJuan River"
"Nicas are unbending La Nacibn, 23 July 1998
with Police" §anJosk
"Costa Rican President ElNuevoDiaPz'o2,4 July1998
suspends visit." Managua.
"Costa Rica Exhibits its La Prensu, 26 July 1998
'Army' on the San Managua
Juan fiver"
"Charno~~~ objecs
La Nacidra, 27 July 1998
to Patrols" SanJosk
"Aleman:I could take E1Nu~oDiurio, 30 July 1998
up the arms" Managua
"Border agreement La Nacidn, 31 July 1998
with Nicas" SanJosk
"Nicaragua forfeited" La Prensa, 31July 1998
Managua
"Agreement tends to La Prensn, 1 August 1998
confirN micaraguan Managua
sovereignty in the
San Juan"
'%greemmen triticized: La Prensa, 1 August 1998
newpractices can be Managua,
dangerous"
"General Cuadra avoids La:Trihuna, 1August 1998
commenting on the San Managua,
Juanhver"pq
146 "Nicaragua:Alemiin hfsche Pwse 4 August 1998
suggests Civil Guard not Agerztur,
to navigate the SanJuan" Managua
147 "Nicaraguanhostility La Nacidn, 4 August 1998
worsens" SanJosk
148 "Nicaraguahardens its La Prensn, 5August 1998
position" Managua
149 "Special Commission in La Prensa, 6August 1998
charge of the SanJuan" Managua
150 "Nicaragua would charge La Nacidn, 6August 1998
visa to CostaRican SanJost
policemen"
151 "Ticoswillpay the price" La Tribulaa, 6August 1998
Managua
152 "Commerce decreases La Nacion, 27 September 1998
alongthe border" San Jost
153 "Ticos requested La Triburzn, 9 October 1998
European mediation" Managua
154 "Vesselsinvestigated" La Naci6~1, 17January 1999
SanJosC
155 "'SanJuan: Calm and La Nacidra, 4 July 1999
uneasiness" SanJose
156 "Costa Rica declares Press Release, 3March 2000
bilateral dialogue PressOfficeof
exhausted,Government theMinistryof
requests mediation ForeignAffairs
by the OAS" of Costakca
157 "The San JuanRiver Press Release, 6 March 2000
belongs to Nicaragua" Press Ofice of
the Ministryof
ForeignAffairs
of Nicaragua"OASSecretary General Press Release 8March2000
Facilitates Reinitiating of the
Dialogue between Costa Organization
Rica and Nicaragua" ofAmerican
States.
~ashih~ton,
D.C.
"Costa Rica forced to La Noticia, 17March 2000
accept the dominion of Managua
Nicaragua over the
SanJuan"
"Permits to Navigate ElNuevoL)imio, 17March2000
Armed?" Managua
"Dialogue regardin5 La Nacibn, 4 April 2900
River at a dead end San Jos6
"Nicaraguan Government Dianb La ,%?a, 11April 2000
charges 1500colones to SanJose
each Costa Rican who
navigates in the SanJuan
for a shorwhile"
"Nicaragua asks for a La Nacibn, 18 June 2009
Costa Rican proposal" SanJosC
"SanJuan spices up Lu Nucibn, 10July 2000
relationship with San Jose
Nicaraguans"
"Intense arms control" La Nucidn, 25 September 2000
San Josk
"Police were not allowed La Nacibn, 28 September 2090
to navigate" SanJosk
"Energeticprotest againstLa Naci~n, 29 September 2000
Nicaragua' San Jost
"PermissionwiIlbe ACAN-EFE 12October 2000
requestedfrom the MadridAgency,
navigation ofnned
Costa Rican police"
"Nicas insison charging" La Naeihn, 8May200 1
San Jose
"An infuriatinggame" LaNacidn, 9 May 2001
SanJose"Nicaragua rejects La Nacibn, 11May 2001
arbitration" SanJosk
"Bolafiossees a solution LaNacidn, 28 February 2002
aboutthe San Juan" SanJosk
"Bolafiosprefers tdeal La Prensca, 3 May 2002
withPacheco on theSan Managua
Juancase"
"Nicas raise River chargeSan Joskn, 2 1May 2002
"Immigration confirms ElNuevoDiario, 22 May 2002
chargeto Ticos on the Managua
San Juan"
"Costa Rica defends A1Dia, 17June2002
dialogue" SanJosk
"Neighbours in the San La Nucibn, 22June2002
Juan River feel San Josk
defenceless"
"The SanJuan Frozen" La Prensa, 27 September2002
Managua
"A river of calm and feesLa Naca'dn, 14May2003
San Jose
"Charge forTicos ElNum Bmo, 7 May 2004
travellinon theSan Managua
Juanreinstated"
"The Northern Border: La Nacibn, 13June2005
An open door for SanJose
drug dealers"
"The Army guards La Prerasa, 1 October2005
the river" Managua
"In alert" La Republics, 2 October 2005
San Jose
"We can stopthe case" ElNuevuDimb, 2 October 2005
Managua
"Nicaragua conditions La Nacibn, 16October 2005
passingof CostaRican SanJose
vessels""Costa Rican vessels willLa Prensca, 17 October2005
bear the NicaraguanFlag" Managua
"Nicaragua conditions ElNtlwo Dian'o, 17October 2005
passing of Costa Rican Managua
vessels'"
"Ticos will pay forvisa" ElNuevo Dimio, 19 October 2005
Managua
"Nicaragua demands a La Nucidn, 30 October 2005
Visa and Passportonthe §an Jose
River"
"Costa Rican Foreign ElNm Diclrio, November 2005
Affairs Minister seeks Managua
dialogueregardingvisas
and flags"
"Ticos claim 'newand ElNuevo Dia;Po, 4 November2005
additionalrights" Managua
"Conflict over the San La Nacidn, 8November 2005
Juan scares awaytourists" SanJosk (VOLUME 6)
OtherDocuments
Annex Description Date
193 FundamentalLawof the State of 2 5 January1825
Costa Rica,Article 15
Source: Coleccidnde Consfitucionesde
Costa Rica:Delpacto de Coneordiaa la
ConstitucibnPolitica de 194(San Josb,
Imprenta Nacional,2000),80-8 1
194 Decree of Basis and Guarantees of Costa 8 March 1841
Rica,Article 1
Source: Digesto ConstitucionuldeCosta
Rica (San Jose:Colegio de Abogados,
1946),89
195 Constitution of CostaRica,Article 47 9April 1844
Source: DigestoConstitucionalde Costa
Rica (San Josk:Colegio deAbogados,
1946), 107
196 Constitution of CostaRica,Article25 10February 1847
Source: Bigesto Constihkcionade Costa
Rica (San Josi: Colegio de Abogados,
1946),130
197 Costa Ri~a,DecreeNo. XVII of 10May 10May 1 847
1847, Article1-3
Source:Leyes decretos ydrcienes
expedidu por lox Supremos Poderes
Legislntivy Ejecutivode Costa Rica en
10saios de 1847 y 1848, TomoX
(San Josk: IrnprentlaPaz,1&63),90-91
198 Constitution of Costa Rica,Article7 30 November 1848
Source:Digest o onstitucionade Costa
Rica(SanJose:Colegio deAbogados,
1946), 154pq
199 DecreeNo LXYIIaf theGovernmentof 22 .lune1852
Costa kca, approvingtheCrampton-
WebsterAgreement
Source:Coleccidnde LeyesDecretosy
Ordenesexpedidospor 10sSupremos
Poderes LegislatiyoEjecutivode Costa
Rica ea 10aios de 185,1852y 1853,
TomoXI1(SanJosk: Imprentala
Pa~,18 6,147-148
200 Costa Rican DecreeNo XXXVIIdeclaring 1November1856
thePort of SanJuanblockedand
prohibitinnavigationontheSanJuan River
Source:Coleccibn raeeyesDecretos y
Ordenesexpedidos por 10sSupremos
PoderesLegislafivy Ejecutivode Costa
Rica en10sa2os de 1856y 1857,
TomoXIV (SanJost: Imprenta la Paz,
187I),74
201 CostaRica,Regulationsof theTreasury, 23 March1858
DecreeNo, IVof 23 March 1858,
Article161-163
Source:Coleccionde las/eyes,decretos
y bvdenesapedidos por 10sSupremos
PoderesLegislativoy Ejecutivode Costa
Ricaen el aiide 1858,TomoXV
(SanJosk:Imprenta laPaz, 1871158-60
202 NicaraguaDecreeof theConstitutional 4 June1858
Assembly inits LegislativeCharacter,
approvingtheTreatyof Limitsof 15
April1858,4 June1858
Source:TheCaseofthe Republic of
Nicaragua(WashingtonD , .C.:Gibson Bros,
18883,AppendixC,49
203 Constitutioof CostaRica,Article4 27 December1859
Source:Digesto Constitutionalde Costa
Rica (SanJosk:CoIegiodeAbogados,
19461,169204 Costa Rica,Decree No. X of 6 February 6 February 1878
1878,Articles1-3, 5
Source: Coleccidnde las disposicianes
Iegislutivasadministrativusexpedidas
evelifz1 o878{SanJosk:ImprentaNacional),
30-32
205 Costa Rica, DecreeNo. XXXIestablishing 16March 1886
amaritimeandcustomsguardat the mouth
of the Colorado River
Source: Coleccibnde dirposicianes
legislativayadministrativas emitidas
ea el a601886,Edicibn Oficial
(San Josk:ImprentaNacional, 18871,
152-153
206 Costa Rica,Decree No. XXXlI.of the 16March 1886
Governmentof Costa Rica, fixing the
functions of the Maritime and Customs
Guard on the ColoradoRiver
Source:Coleccibn de Disposiciones
Legisltivasy Adrninistrativas emitidas
enel afio1886,Edicibn OJicial
(San Jost:ImprentaNacional, 1887),
153-154
207 P Perez Zeledbn,Argument on the Question 1887
ofthe Va/aEidotfy'tTreat;yofLimits
betweenCosta Rica andNicaragua
(Washington,D.C.:Gibson Bros, 1887)
(extracts),3-5, 100,154-161 and 274-8
208 Reply ofthe Republic of Nicaragua to the 1887
Caseof the Republicof Costa Rica
(Washington,D.C., 1887) (extracts)48,49
209 Report ofCizoA. Navarro, Assistant tthe 9 Marc111892
Jnspectorate,to the General Inspector of
theTreasury,9 March 1892
Source:Archivo Nacional, SanJoskF)
210 Report of the Chief of theGuard 8November 1892
[vesguardo]of Colorado, Juan Francisco
Zeled~n,to the GeneralInspectorof the
Treasuryo, 3 1October 1892,transcribed
in documentNo. 97 fromthe Inspector of
the Treasuryto the Secretaryof State in
chargeof the Treasury,
dated 8November 1892
Source:Archivo Nacional de Costa Rica
211 Report of the Commander of the Post Rio 31March1894
Colorado-ColoniaIrazrjto the General
Inspectorof Treasury
Source: Archivo Nacionalde Costa Rica
212 Report of Rafael Cruz, Commander of the 10 March 1895
Post Rio Colorado, to the General Inspector
of Treasury,NoteNo. 89
Source: Archivo Nacional, San Jose
213 Reportof theNavy Inspector E.G.
Chamberlain to the Secretary of Warand
the Navy of Costa Rica, 1897
Source:Memoriade Gzlerra y Marina 1897
correspondienfea1an"o economieode
1897-98(San Jose: TipografiaNacional,
1898),195-196.
214 Report of JoseSolbrzano to the General 16 March1906
Inspector of the Treasury, March 1906
Source:ArchivoNacional de CostaRica
215 Report of theSub-Inspectorto the Treasury 24 November1908
of Colorado tothe General Inspector
of the Treasury.
Source: ArchivoNacionalde CostaRica
216 Reportof the Sub-Inspectorto the Treasury 7 December 1909
of Barra del Coloradoto the General
Inspector of the Treasury.
Source:Archivo Nacional de CostaRicaCosta Rica,Revenue GuardLaw No. 4, 10 September 1923
Articles 1,,6-9, 18-19
Source: Coleccibnde Leyesy Decretos,
Segundo Semestre, AGO de 1923(SanJose:
ImprentaNacional, 1923),306-310
Constitutionofthe Republic ofCostaRica, 8 November 1949
8November 1949,Article12
Source:BilingualEdition (San Jost:
Comisi6nNacional parael Mejoramiento
de laAdrninistracionde la Justici2001),
18
Situauibrjuridica d1Rio San Juan 1954
Source:Ministerio de Relaciones
Exteriores,Managua, 1954,5-6
CostaRica, RuralAssistanceGuard Law 23 September 1970
No. 4639, Articles 2-3
Source: Cole'eccide leyes, decretos,
acuerdos y resolucionesSegundo
Semesbre.I Tomo.(SanJose:Imprenta
Nacional, 1970),564-565
CostaRica, LawNo. 4766,Article 3 28 May 1971
Source: Coleccidnde Leyes,Decretos,
Acuerdosy Resoluciones.Primer Semestre.
I Torno.(San Josk:IrnprentaNacional,
19711, 1170
Situacidnjuridiea del Rio SaJuan (extract)1974
Source:Ministerio de Relaciones
Exteriores, Managua, 1974,5-6
Manager of SwissTravel Services,Emiiia 7 June 1982
Gamboa, toCostaRican Minister of Public
Security,Angel Edmundo Solano,
7 June 1982
Manager of SwissTravelServices,Emilia 5 July 1982
Garnboa,to Costa RicmDeputy Foreign
Minister,Ekhart Peters5 July 1982225 Manager of Swiss TravelServices;Emilia 13 July 1982
Gamboa, to Costa hcan Deputy Foreign
Minister, EkhartPeters, 13July 1982
226 Costa Rica, General Lawof Police Law 26 May 1994
No. 7410,Articles6, 8, 24, 27,28
Source: Coleccibndeleyes, decretoy
reglarnentos,ISemestre1994,I Torrzo
(San Jose: Imprenta Nacional, 1993,
260-261and 265-266
227 First CommandantM , ayor HugoEspinoza, 18 December 1998
SarapiquiAtlantic Command,to General
Director of therderPolice, ColonelMax
CayetanoVega,Note 3054-98,P.F.S,18
December 1998
228 Costa RicanForeignMinister Roberto 8March 2000
Rojas, Statementto the Permanent Council
of the OrganizatioofAmericanStates, 8
March 2000, OEA1Ser.GCPlACTA
1224100,14-20
229 Nicaraguan Foreign MinisterEduardo 8 March 2000
Montealegre,Statementto the Permanent
Councilof the OrganizationofAmerican
States, Washington,D.C.,8 March 2000,
OEA/Ser.GCPlACTA1224/00,20-26
230 Costa Rica, Law of Creation of the 5 May 2000
NationalCoastguard Service Law
No. 8000,Article 2
Source:Diario Oficia La Gaceta No. 99,
AlcnnceNo. 34. (SanJosk, Imprenta
Nacional, 24 May 2000), 1
231 Declaration Recognizingas Compulsory 5 December 2001
the Jurisdiction of the International Court
of Justice, underArticle 36, Paragraph 2,
of the Statueof the Court, Nicaragua
Reservation, UN ReferenceC.N.1157.
2001.Treaties-1,5 December2001
232 Objection of 18December2001, UN 1February 2002
Doc.A/56/770, 1 February 2002233 Nicaraguan Foreign Minister, Norman 27 May 2002
Caldera Cardenal, to Nicaraguan Minister
of Governance,Arturo Harding, Note
No. MREIDM-JI/0680/05/2,27 May 2002
234 CostaRica,Regulationsfor theOrganization 1December 2004
of the Ministry of Public Security,Decree
32177-SPArticles 52,54
Source:Dimzo OJicialLu Gacsta No. 6,
Alcance No. 1 (San Jose: Imprenta
National, 10January 20051,9
235 Municipal Mayor of SanCarlos, Costa 18October 2005
Rica, LicAlf edo Cordoba Soro, to
Directorof Foreign Policy,CostaRican
Foreign Ministry,ic Jasi:Joaquin Chaverri
Sieved, Note No, AM-1315-2005, 18
October 2905
236 Director of the HealthArea of Pita1of San7 November 2005
Carlos, Costa Rican Department of Social
Security,Dr.Kattia Corrales Barboza,to
Director of the Regional Managementand
Health Service Networks,North Huetar
Region, Dr.OrnarAlfaro Murillo, Note
No. RHNPI-303,7November 2005
237 RegionalDirector of the NorthHuetar 15November 2005
Regional Medical Services,Dr.Omar
Alfaro Murillo toeneralDirector of
Regional Management and Health Service
Networks, Dr. Armando Villalobos
Castaiieda,Note No. DGRRSSIZWN-25 11
-05, 15November 2005
238 MrJorgeLao JarquinandMrSantos hieta 22 November 2005
Flores to Costa Rican ForeignMinistry,
22 November 2005
239 Head of the Nurse Departmentof the Health 9 February 2006
Area of Pital, Costa Rican Departmentof
SocialSecurity,Lic. Antonio Garcia Perez
to Director of the Health Area of Pital of
SanCarlos, Costa Rican Department of
Social Security,Dr.Kattia Corrales
Barboza, Note No. DAP-EA-030-2006,
9 February2006240 Note ofthe IntendentCommanderin service 14 February2006
ofAtlantic Command, Sarapiqui,Daniel
Soto Montero, to CostaRican Foreign
Ministry
241 Receipts of payment of the "departure
clearance certificate":
(a) Departure Certificatefor US$2.OO 5 May2001
chargedatthe SarapiquiArmypost and
receipthereof
(b)DepartureCertificate for US$25.00 5 May2001
chargedat El DeltaArmypost
(c) ReceiptforUS$5.00 charged at the 23 June2006
SasapiquiArmypost
(d) Receiptfor US$10.09charged at San 23June 2006
Juandel Norte Army post
242 Touristcard charges:
(a) Receipt forthe Touriscardcharged to 5 May2001
2 persons ($10.00)
I
(b) Touristcard of $5.00 6 August 2005
243 Receipts of payment of a tax for "transit
permit throughthe border points":
(a) Receipt of payment of the "transit 28 December
permit through the border points" 2005
charged toa Costa Ricanboatman
(b) Receipt of payment of th"transit 23 June2006
permit through the border points"
chargedto a Costa Rican passenger
244 Visasrequired in order to navigathe December 2905
SanJuan, receipts thereof, and copy of
stamped passport
245 Receipts of paymentof the"migratory
service (entry and exit)"
(a) Receiptof paymentfrom a Costa Rican 28kcember
boatman 2005
(b) Receiptof payment from a Costa Rican 23 June2006
passenger
Memorial of Costa Rica