INTERNATIONALCOURT OFJUSTICE
DISPUTE CONCERNING
NAVIGATIONALAND RELATEDRIGHTS
(COSTA RICAv NICARAGUA)
COUNTER -MEMORIAL
OF THEREPUBLICOFNICARAGUA
VOLUMEI
29May2007 TABLE OF CONTENTS
INTRODUCTION ......................~..........................................
..................................
SECTIO1N
THE PROCEDUR AED THEJURISDICT IF NHECOURT .................................................
SECTIO 2N
THE HISTOR AYNDTHE BACKGROUN ODFTHECASE .................................2...................
SECTIO 3N
THE SCOP AENDTHE NATUR EFTHEDISPUTE......................................6.............
SECTIO N
THE STRUCTUR OFNICARAGUA &X!NI'ER-MEMORIA..............................7.................
CHAPTER1
BACKGROUND TO THEDISPUTE .............................................9.......................
..............
SECTION 1.1
GEOGRAP HYTHESAN JUAN UENICARAGU RIVER.................................................................
RESERV E.............................................................................................................
SECTIO1 N.2
THETREAT YFLIMIT OF 1858:HISTORICBAALCKGROU .D......................................
A.THESANJUAN RIVERUNDER SPANISRULE (1527-1821............................................
B.THEPOST-INDEPENDENCAENDFEDERALPERIOD (18211838).....................20...............
C.THEPOST-FEDERALPERIOD(18381848)......................................2.....
....................
D.PERIQDOFINTERNTAIONALIZTIONOFTHEDISPUTE..............................................
E.PERIODOFTHE NATIONA ANTI-FILIBUSTWEAR(1855-57.........................................2
CONC Lsiohr...........................................
..................................
SECTIO N.3
PRECEDEN ANDSUBSEQUENTPRACTICE RELATEDTOTkIE 1858JEREZ-CARAS TREAT ...3g
A.PRECEDENTTSOTHE 1858TREAT ..........................................39............................
....
B.THETREATIOF LIMI TFS15APRIL1858........................................................4
c.THEPERIOD FROM1858 TO1888...........................................50....
..............
D.PERIODSUBSEQUEN TTI888...........................................
.3..........................
CHAPTER 2
NICARAGUA'SSOVEREIGNTYOVERTHE SAN JUAN DE NICARAGUARIVER ...61
SECT~O N.1
CHARACTE ORB.JEATNDPURPOSE OFTHE 1858TREAT .Y..........................61............. E.COSTARICA'SALLEGEDRIGttTOTHERE-SUPPLYOFAND TRANSPORTOF Ij6'RSONNELTOAND
FROMBORDERPOSTSAND "OTHERRLU TEDRIGHE" ..............................183.......................
SECTIO4 N.3
COSTA ~CA PURPORTSARIGHTOF NAVIGATIONINTHE SANJUAN DENICAKAGUA RIVER THAT
ISNCONCLUSIODB....................................................................................................
CHAPTER 5
NICARAGUA HAS NOTBREACHED ANY OTHERRIGHTS
ALLEGEDBY COSTARICA ........................ ............................................
SECTIO5N.1
ALLEGED BREACH EFAN ALLEGE DUSTOMAR RYIGHTTOFISI..................................
SECTION 5.2
ALLEGE BDREACH E1AN ALLEGER DIGI.TO RE-SUPP LY RDE POSTS.............204...........
SECTIO 5.3
ALLEGE BREACI~ES0I''rHALLEGER DIGH TFCOSTA RICAN VESSEL SOTTO CARRY TFlE
FLAG OFNICARAGU ATHEWATERS OFTHE SANJUAN ~VER ......................2...........
CHAPTER6
COSTARICA'SRESPONSETO NICARAGUA'SPOLICYOFCOOPERATlON AND
GOODNEIGHBOURLJNESS
THEATTEMPTSBYCOSTARICA TO REVISETHEI858 TREATYB YINDIRECTMEANS
..........................................................................213...............
SECTIO 6 .1
NICARAGUA GENERA POLIC YFCOOPERATION ................................2...................
A.ARMED NAVIGAT I.N...................................................4..
......................
B.PLEASUR BOATING....................................................22......
.................
COMCLUS~...........................................................................
.......................................
SECrION6.2
NICARAGUA FSCILITATI OONTRAFFI CNTHE~VER .............................29...............
CONCLUSION,..........................................................23 7...........
.............................................
CHAPTER 7
REMEDIES .....................................-...................................-...-................
SECTIO 7.1
THE REMEDIESREQUESTE BY COSTARICA .....................................239......
.........................
SECTIO N.2
DECLARATI OENQUEST EDNICARAGU .A....................................2..6..............
RESERVATIONS .........,............. ............... 251
111SUBMISSIONS ...,...............,,........,..................,..............253
LIST OF ANNEXES ......................... .,.............. 255 INTRODUCTION
Section 1
The Procedure and the Jurisdiction ofthe Court
1 On 29 September 2005, CostaRicafiledan Application before the Court
by whichsherequestedthe Court "toadjudge and declarethat Nicaragua is
in breach of its international obligati...in denying to CostaRica the
free exercise of its rights of navigation and associated rights on the San
Juan kver"' .
2 Costa Ricafiled her Memorial on 29 August 2096, within the time-limit
fixed by the Court's Order of29 November 2005. The presentCounter-
Memoriulis filedin accordancewiththe same Court'sOrder which fixed
29 May 2007asthe tirne-limitfor itsdeposit.
3 In her Memorial,Costa Rica bases the jurisdiction of the Court on "the
declarations of acceptancemade respectively by the Republic of Costa
Rica dated20 February 1973,andby the Republicof Nicaragua dated24
September 1929" combined with the Tovar-Caldera Declaration of 26
September2002 and on Article XXXI of the AmericanTreaty on Pacific
Settlement of Disputes,Bogota, of 30 April 1948 (the Pact of ~o~oti)~.
Nicaragua does not take issue with these assertionsandfullyacceptsthe
Court'sjurisdiction ithe presentcase.
4 However,Nicaraguawishes to make very clearthatwhileshe acceptsthe
jurisdiction of the Court, she neverthelessconsiders thatthe issues raised
'CRM,para.12.
CRM, p.3,para..09. by Costa Rica have already been settled by the 1858Treaty and the 1888
Cleveland Award. The 1886treaty by which the parties submitted the
dispute to President Clevelandprovides in ArticleVII that theaward"shall
be held to be obligatory betweenthe contracting partiesNo other recourse
shallbe admitted." Costa Rica should thus not be permitted to raise again
matters that have already been decided.
Section 2
The History andthe Backgroundof the Case
5. Soon after the Spanish arrived in America and explorer Vasco Nuiiez de
Balboa discovered the Pacific Ocean in 1513, the search for a natural
waterwayor strait that would connect both Oceans began.Oneof the most
promising candidates for having this natural channel between the Oceans
was thought to be Nicaragua with her huge Lake and her outlet to the
Atlantic, theSanJuan de Nicaragua River.
6. This possibility offindinga natural channel throughNicaragua and then as
a most favourablesite for the cutting of an interoceanic canal, made
Nicaragua a most coveted prize by foreign powers and her immediate
neighbours. As was acutely observed by an American Diplomat early in
the 20IhCentury, in allthe international controversies of Nicaraguthetrue
cause of the problem was thedesire tocontrol the routeof the interoceanic
~hannel.~
7. Costa Rica's interest became manifest immediately after independence
from Spain in 1821. Although the principleof uti possidetis iurzs.was
4See below,Chap.3, Sec1andChap.4.
CRM, Vol. 2, Annex 14.
I 'Seepara. 1.2,26below. supposedto rule the division of the colonial territoriesCosta Rica took
advantageo a civil war raging inNicaragua andannexed an important part
of Nicaragua calledNicoya. The annexation ofthisterritorybrought Costa
Rica closerto the coveted shoresof the Lake of Nicaragua which, added to
her post-colonial claimof shared sovereignty over its outlet, the San Juan
River, made Costa Rica see herself as the sovereign over any canal route
through this natural waterway or, at the very least, a necessary partner in
any suchenterprise.
8. In1857,after Nicaragua wasprostrated by a war against foreign invaders,
Costa Rica took over control of the Lake and River route through
Nicaraguan territory. This was seen by Nicaragua as a casus belliand
declared war on Costa Rica. This declaration of war prompted the Parties
to reach an agreement, an agreement that Nicaragua consideredwould at
long lastput an end to Costa Rica's attempts to take over or to at leasbe
consideredco-sovereignover the SanJuan River. The Agreement was the
1858Jerez- CafiasTreaty of Limits.
9. Nicaragua will come back in some details on the circumstances of the
conclusion of the Treaty of Limits later in this counter-~emoria~.~It is
however in order to recall out of hand that, in exchange for her full
sovereigntyover the waters of the San Juan River, Nicaragua made very
significantconcessions since she gave up her well founded claims over the
district of Nicoya and the areas south of the San Juan River which
appertained to Nicaragua on the basis of the principle of uti possidetis
iuris7.The other element of the quid pro quo precisely was the limited
6See e.g.Section1.2and1.3,
7Seethe Reporttothe arbitratt,ePresidentoftheUnitedStates,byGeorge L.hves, Assistant
Secretaryof State,2March1888.NCM,Annex70.
3 right of navigation with articlesof trad(con objetos de comercio) granted
by Nicaragua to Costa Rica on,.he lower part of the San Juan River as
defined by Article 6of the ~reaty'.
10. Thirty years later, coincidingwith negotiations between Nicaragua and the
United Statesforthe building of theinteroceanic canal through Nicaragua,
Costa Rica revived the dispute on her navigational rights in the San Juan
River by attempting to patrol the waterway with a war ship. The crisis
brought about by this incident, together with Nicaragua's claim thatthe
1858 Treaty was not valid because it violated herConstitution, prompted
the Parties to authorize the President of the United States to arbitraton
the issueof its validityand of the limits of certain rights of navigation in
the San Juan River. PresidentCleveland brought in his award on 22 March
1888.
11. Since both Parties have accepted the Cleveland Award as binding and
final, icould have been expected that it had put a final end to the dispute
over the validity and scope of the Treaty of Limits. This has been the
position of Nicaragua - unfortunately not of Costa Rica which has
constantlyendeavoured to expand therights shederives fromthe Treaty.
12. In fact, Costa Rica's application purely and simply aims at reviving the
case which was brought before the President of the United States and to
obtain from the International Court what she could nor get from the
President of the United States 120years ago.
-
R
TheTreatyofLimits isreproduceasCRM, Vo4.2, Annex7,pp.54-60.13. In a nutshell, Costa Rica seeks, once again: tobroaden her rather limited
right to navigate with articles of trade (con objetos de comercio) on the
River SanJuan in order to obtain an almost unrestricted rightof navigation
for whatever purposeand with anytype of vessels.
14. However, as is clear from the text of the Treaty itself and from its
interpretationby President Cleveland, no such righthas ever been granted
to Costa Ricaby Nicaragua,not evenremotely.
15. One hundredand twenty years ago, Costa Rica sought to navigate the San
Juan with ships of war. The Cleveland Award denied Cost Rica this right.
This time around sinceit couldnot claim a rightto navigate withwar ships
as such, it resuscitates this long buried issue by claiming rights of
navigation witharmedmilitary personnel.
16. In light othe foregoing,it is perhaps fittingto conclude this section with a
quotation from a formerPresident of Costa Rica. President AbeIPacheco
made the following declarationsto the Costa kcan newspaperLa Nacidn,
which it published on 19May 2002: "We must understand that it iabsurd
that a country withno army is fighting over the passage of armed persons
on a navigable river thais dryingup. ..So,what's this row about?" ''
17. The present case ("this row")isabout a new avatarof the traditional Costa
Rican strategy of seeking to erode Nicaragua's sovereigntyover the San
Juande Nicaragua River,
I0f.infra,para.14.
NCM, Annex81. La Nacion, 19May 2002,"Pais debeintegrar[Countryforcedtointegrate],
section subtitled:"Pachecoa diaiogo informalpor el rio" [Pachecoto TakePan in Informal
DialogueOverRiver].
5 Section 3
The Scope and the Nature ofthe Dispute
18. Costa Rica's presentation of the "Scope of the ~is~ute"a' nd of "The
Dispute before the ~ourt"'* is biased in many respects which will be
explained more fully in the bodyof this Counter-Memorial.
19. The cornerstone of the present dispute, as revealed by its historical
backgroutld, is, no more and no less, the 1858 Treaty of Limits and its
interpretationin respect to the navigational rights granted in this legal
instrument to Costa Rica. The allegations of the Applicant with regard to
the violations of the 1858Treaty, andin particular of itsArticle VI, stand
or fall with the interpretation of this legal instrument and the subsequent
Cleveland Award which already settled this salient question some 120
yearsago. Indeed, and this is not frontally questioned by the Applicant, the
San Juan River is under the sovereignty of Nicaragua. This case is not
about "navigation on international waterways" and the international law
general rules regulating those activities are of no help, contrary 20 the
allegations of the~~~licant'~.It is forthe Court to determine if the acts
and/or omissions of Nicaragua alleged by the Applicant may constitute
violations of the obligations imposed to Nicaragua under the special
regime of the 1858 Treaty. This is consequently a case about a treaty, its
interpretationand its application.
IICRM, Introduction,pp.1-3.
13CRM, Chap. 3,pp.27-.45.
CRM,p. 155para.A 19. Section 4
The Structureof Nicaragua's Counter-Metlxoriul
The Counter-Memorial will be structured according to the schema
indicated below. Part of the Counter-Memorialwill consist of Annexes
containing documents citedin the text. Nicaragua does not have at present
original or copies certifiedas accurate of someof the documents cited. The
national archives of Nicaragua have been ravaged by two major
earthquakes last century and the wanton destruction of some of her main
cities by invaders since the time of Independence. Therefore, some of the
documents cited in the text will be referred to those filed by Costa Rica in
her Memorial. Hence, Nicaragua reserves the right to produce in due
course other more accurate versions ofthese instruments ifthey should be
so found. Furthermore,insome cases, these documentsfiled by Costa Rica
are accompanied by inaccurate translations of the text or certain parts of
the textthathad previously not been disputed and hence little intereswas
placed on its correct translation. In these cases, there is an indication of
Nicaragua's position on this question. The most salient of these
inaccuracies of translation that ofthe phrase usedto describe the typeof
navigation rights granted to Costa hca in the San Juan River. Thus the
phrase "con objetos de comercio" contained in the Treaty of Limits of
I858is loosely translated as "with purposes of commerce" and not its
accurate meaning of "with objects of commerce" or "with articles of
trade". Since the question had not been at issue during the Cleveland
Arbitration in 1888 and only in recent times has become an issue, little
attentionhad beenplaced on thisdiscrepancy.21. The schema of Nicaragua's Counter-Memorial is as follows:
Chapter 1addresses the background to the dispute.This Chapter is divided
in three sections: The first section is the geographyof the San Juan de
NicaraguaRiver,the second, the historical background in general, and the
third, theprecedents and subsequent practice related to the 1858 Jerez-
CafiasTreaty.
Chapter 2 reaffirms Nicaragua's sovereignty over the San Juan de
Nicaragua Riveraccordingto the 1858 treaty.
Chapter 3analyses the Cleveland award and other considerations relatedto
the dispute.
Chapter 4 demonstratesthat Nicaragua has not breachedCosta Rica'sright
ofnavigation under the 1858Treaty.
Chapter 5 continues explaining that Nicaragua has also not breached any
other rights allegedby Costa Rica.
Chapter 6 explains Costa Rica's response to Nicaragua's policy of
cooperationand good neibourliness.
Chapter7 containsthe Remedies and declarations requestedbyNicaragua.
And, finally, a note on certain Reservation of rightmade by Nicaragua
and then the Submissions. CHAPTER 1
BACKGROUNDTO THEDISPUTE
Section 1.1
Geographyofthe SanJuande Nicaragua River
1.1.1 Thepurpose of this section is to describethecurrenstatuof theSanJuan
de Nicaragua River, including the present day situation of the historical
bay at its mouth, and the difficulties for navigation at the lower end of its
course, aswell as the presenceof large Natural Reserves on its margins
and the impactof all of this on the scarce riparian population.
1.1.2 The SanJuan de Nicaragua River, also known as the Desaguadero ("the
drainage", in Spanish) is the outletof LakeNicaragua(also known by Its
native name of Lake Cocibolca). It flows out of the southeastern endof
Lake Nicaragua, next to the city of San Carlos, and empties into the
Caribbean Sea along the shores of the municipality of San Juan de
~icara~ua.'~(SeeSketchMap I)
1.1.3 The Sm Juan Riveris a naturalchannelthat drains thewaters of theGreat
Lake into the Caribbean Sea, following a rectilinear andwinding course,
205 kilometers long, and descending 31 meters from the level of the lake
into the sea.The river jumps over a series of rapids interposed in its
median course, amongst which the rapids of Toro, Castillo,San Pablo,
Balas, Diamante, Machuca and Campana can be appreciated. Itsmain
affluents originating entirely in Nicaraguan territory are the rivers
Malacatoya, Oyate, Mayales, Acoyapa, Tepenaguazapa, Tule, Carnastro,
OchomogoandSabalos;andtherivers San Carlos, Sarapiqui, Frio,Medio
14
SketchMap 5oftheCostaRicanMemorialdoesnotreflectthecorrectattribof territoryof
Nicaraguaand CostaRicaatthegeneralarea of the mouth of the San JuanRiver. Nicaragua
thereforereservesherrightsgenerallyonthesequestions.
9 Queso, Palo de Arco, Negro and Pocosol thatpartially originate in Costa
Rica'sterritory.
1.I.4 The San Juan is not a border riverbut an integral and indivisible part of
the Republic of Nicaragua and thus runs along its whole course within
Nicaraguan territory, in the departmentof the samename,which is located
in the country" southeast region. The border between CostaRica and
Nicaraguaruns along the right bank of the lower course of the River from
Punta de Castilla, at itsmouth, to a point upstream three English miles
below Castillo Viejo. From thatpoint until its origin in LakeNicaragua,
the rightbankof the Rivesceasesto mark theborder and the San Juanruns
entirely insidetheNicaraguanterritory.15
1.1.5 The volume of water of the river is remarkable. Its drainage areal6 is
approximately 40,660 square kilometers. The water flow varies in time
and space along the 205 kilometers of the river. According to
measurements made by the United States Corps of ~n~ineers'~between
1930 and 1950, the flow of the river immediately downstream from the
mouth of the Sarapiqui River was 1,100 cubic meters per second during
the indicatedperiod. In the measurementsmadeby theNational Powerand
Light Company (ENALUF)" at the rapids of El Castillo between 1971
and 1973,the average flowwas 516.9cubic meters per second.
l5See SketcMap 1andCRM Yol.2, Annex.7,Article11oftheTreatyof 1858,at54-60.
San JuanRiverHydroele~triandNavigationProject,Volume 1, p. 43. The Governmentsof
NicaraguaandCostahca. December 1477.
" Ibidp.47.
''Hydrometri catabasof the NicaraguanInstitutTemtorialStudie(INETER).
10 1.1.6 This volumeof water not only originates fromthe lakeand its tributaries,
but also from the watersof its affluents. The watevolume is reinforced by
the region's heavy rainfall that ranges from 2,000 to 6,000 rnillimetrerj
annually,one of thehighest figures registerein the American continent.
1.1.7 Inthesecondhalfofthe 19thcentury,part of theriver waters was diverted
to Costa Rican territory, flowingoutintothe Colorado River,This process
of diversion of water has also occurred in the affluentsof the SanJuan
originating in Costa Rican territory where the waters are diverted
indiscriminatelyforagricultural and industriapurposes.
1.1.8 The sedimentloadthat the San JuanRiverreceivesfromrivers originating
in Costa Rica is very heavy. Thus, the sediment load immediately
downstream fromthe Sarapiqui River, measured at the beginning of the
seventies,was 10.2millionmetrictonsper year'9.
1.1.9 The resultof all this has been that the bay of SanJuande Nicaragua has
undergone sedimentationand obstructionover time, in such way that now
the bay communicates withthe seathrough anarrowoutlet.
1.1.10 These affluents of the SanJuan originati~rginCosta Rica have also carried
substantial amounts of pollutants that have damagedthe San Juan de
Nicaragua River.
"~ccordin~ tothecalculatios adebythe CentralAmericanHydrologicalProject [PHCwith
theassistancoftheUnitedNations DevelopmentProgramme,SanJuan RiverHydroelectricand
NavigationProject, Volu1,page69.The Governmentsof Nicamguaand CostaRica.December
1977.
111.1.11 The geornorphologyof the SanJuan valley isdefined by certain structural
elements locatedon each side of the old continental dividing linethat was
part of theCentral Mountain Shield, which declines and ends in front of
the median courseof the river.
1.I.12 In its first segment, comprisedfrom itsoutlet in the lake to El Castillthe
river course flows broadly,with an average width of 390meters;its banks
are low and prone to flooding, the main affluents in this sector being the
Frio, Melchora, Medio Queso, Pocosol, Sibalos and Santa Cruzrivers.
Sandy islands coveredwith vegetation are located in the median of the
elongated current. The tree vegetation that originallyovered the banks of
the river in this sector has been significantly altered and replaced by
grazing land.
1.1.13 In its median course, the river descendsthrough a series of interposed
rapids, where rocks protrude to the surface making navigation difficult.
These rapids constitute the projection of the Central Shield, at the south
extreme, made upof oldvolcanicandsedimentary rocks. Inthis sector, the
river narrows, passing through necksnot more than 50 meters wide; the
current becomes deeper and forms ponds, crating the so-called "dead
waters". The Bartola, Infiemilloand Las Cruces affluents have a short
course. Beyond the BartolaRiver, the greatIndio-MaizBiosphere Reserve
(2,639.8 km212b 'egins, extending downstream, adjacentto the Nicaraguan
bank, and endingin the Caribbean Sea.
I
1.1.14 ARer passing the confluence of the San Carlos River, which descends
from the volcanic chainof Costa Rica,the riverrecoversits originalwidth;
20 Decree56-99. "UpdateandDefinitionofcategorieandlimits of ProtectedAreas locatedin
Nicaragua'ssoutheastterrito. 1May 1999.NCM, Annex61.
12 the elongated isles reappear and the current forms rectilinear shoals
followed by closed curves in the alluvial and marshy plains of the
Caribbean Sea, up to the confluence of the Sarapiqui, another liver
originating inCosta Rica.
1.1.15 When it reaches the delta, the current beginsto bifurcate in themiddle of a
very flat and sedimentary terrain, where the banks of the different river
tributaries are very low, connecting in someparts with marshy areas, and
leaving behind small enclosed lagoons (Silica, Ebo, La Barca, Harbor
Head),which not too long ago formed part of the maincourseof the river.
Sedimentation is predominant in this sector, which is further exacerbated
by the sandsdragged by the San Carlos and Sarapiqui rivers from Costa
Rican volcanoes. This sedimentation from rivers originating in Costa Rica
is responsible for almostblocking the Nicaraguan outlet into the seaofthe
San Juan de Nicaragua River during the last hundred years, and for
diverting the largest volume of water into the Colorado River, the other
outlet ofthe San Juan located in Costa Rica. In effect, during the driest
monthsaf the summer,the Nicaraguan outlet of the SanJuan de Nicaragua
hver does not even reach half a meter in depth, which hinders navigation
by even small-draftboats.
1.1.16 The vegetation around the delta ispredominantly marshy and emergent,
dotted withpalms, while the formationof mangroves is scarce and limited
to certainareasin thebay of SanJuan deNicaragua.
1.1.17 At present,the bay of SanJuan del Norte is about three kilometreslong. It
is highly sedimented and is partially covered by floating invasfve vegetation(Eichornia).This processhasaccelerated sincethe main current
of the river wadivertedto theColorado onor about 1860.
1.1.18 The towerpart of the San Juan de Nicaragua River, the natural conditions
of theterritory, its climate and topography, have allowed for the existence
of important ecosystems and natural areas that have facilitated the
structuring ofa National System of Protected Areas, that constitutes a
formof organization that commands specialattention.
1.1.I9 It includes the Southeast Biosphere Reserve of Nicaragua, recognized by
the Man and Biosphere Programme, coordinated by the United Nations
Educational, Scientificand Cultural Organization (UNESCO)since 2003,
as part of the world-wide network under the name"SanJuandeNicaragua
BiosphereReserve".
1.1.20 Likewise, Nicaragua's southeast region is one of the main links of the
Mesoamerican Biological Corridor and constitutes one of Nicaragua's
principal contributionstotheCorridor.
1.1.21 The southeast region, withan estimated areaof 18,341square kilometers,
includes the department of Rio San Juan and part ofthe South Atlantic
Autonomous Region(RAM).
1.I.22 On 17 April 1990, the Government of Nicaragua created the Southeast
Natural Protected Areas of Nicaragua, through Presidential Decree 527, published in Official GazettNo 78 of 23 April 1990~'.This decree creates
the Solentiname Archipelago National Monument, the "Los Guatuzos"
Wildlife Refuge, the "Fortateza de lalnmaculada Concepci6n de Maria''
Historical Monument and the Great Indio-Maiz Biological Reserve, as
well as the National Commission for Management and Developmentof
Nicaragua's SoutheastNaturaIProtected Areas.
1.1.23 On 8June 1994,Decree 28-94 was published in Official Gazette No 106,
declaring Nicaragua's southeast region a Sustainable Development
Territory. The objective of the declaration is to foster "rational use of
natural resources, environmental conservation, biodiversity and
development,based on the capacity of use of the land and, in particular,
ecot~urisrn"~~.The limits of the Indio-Maiz Biological Reserve were
extendedby this decree.
1.1.24 On 31 May 1999,the Governmentof the Republic of Nicaragua, through
Decreenumber66-99, "Update and Definition of Categories and Limits of
Protected Areas located in Nicaragua's southeast territory", declared the
Southeast Protected AreasSystem as the "Southeast BiosphereReserveof
Nicaragua'" initiating a new phase inthe management of natural areas in
the regioncomprised by the followingprotected areas:
(See Sketch Map2)
1 "Los Guatuzos"Wildlife Refuge
Solentiname Archipelago NationalMonument
I
I "Fortaleza de la InmaculadaConcepcibn de Maria" Historical Monument
I
I Cerro SilvaNatural Reserve
2'SeeNCM, Annex59.
l2SeeNCM,Annex60. Indio-MaizBiological Reserve
Punta GordaNatural Reserve
San Juan RiverWildlife ~efu~e~"~.
1.1.25 The reserves, which enjoy a special protection regime, occupy a large
portion of the territory adjacent to the lower course of the river, thus
population in the adjacent zones is scarce, dispersed and fragmented in
small houses, farmsand villages.
Section 1.2
The Treaty of Limitsof 1858: HistoricalBackground
The borders between Nicaragua and Costa Rica were established during
the Colonial Period when the present day Central American States were
part of the Captaincy General of Guatemala, an administrative and
political dependency of the Spanish Empire. When the Central American
States gained their independence from Spain in 1821 they accepted that
their borders would be ruled by the principle ofutipossidetis. iuris. The
adoption of this legal imperative sought to avoid territorial disputes that
might provoke border wars betweenthe new States.
1-2.2 Although in this earlyperiod theborders were not exactly demarcated, the
two territorial questions that plagued the relations of Nicaragua after
independence were quite clearly established. One was that on the Pacific
Ocean or western side of the border was located the District of Nicoya
(also referredto in SpanishColonial terms asthe"Partido de Nicoya") that
was part of Nicaragua and extended to the river El Salto. On the Atlantic
23SeeNCM, Annex6 1.
16 or eastern side the border was the mouth of the San Juan River that
"belonged to ~icaragua"~~.
These colonial borders clearly established that on the Pacific or western
side of the Central American Isthmus,the Nicaraguan borders went from
the Gulf of Fonseca to the Northdown to the Gulf of Nicoya on the South,
whilst on the Atlantic:the SanJuan Riverwas entirely Nicaraguan.
Shortly after independence, a civil War broke out in Nicaragua in 1824
that deeplydivided the countryand weakened its capacity for defending
her territory. During this turmoil,and turningher back on the principle of
utipossidetis iztrisCosta Rica annexed the large District of Nicoya and
with this territory in hand, began hercrusade for gettinga parof what was
considered themostimportant territorial treasureof the area: theextensive
Lake Nicaragua and its outlet to the sea, the San Juan River, that was
considered the most important and feasible canal route for uniting the
Pacificand Atlantic Oceans.
The territorial dispute promptedby thissituation continueduntil the 1850s
when Nicaragua was invaded and taken over by military elements
proceeding from the United States. It was clearly perceived by
Nicaragua's nneighboursthat the ultimate aim of thisinvasion was to take
over Central America. This prompted a crusade involving all Central
America in order to defeat these foreign forces. Prominent among these
Central American forces that came to assist Nicaragua was a Costa Rican
army.
24RoyalCharterof 1573,NCM,Annex86.
171-2.6 Afterthe invaders were expelled fromNicaragua and the dangerto Central
America was over, Nicaraguasigneda Treatywith Costa Rica in 1858 that
aimed to settle the territorial dispute that had rankled theirrelations since
the annexation of the District of NicbyaCosta Ricain 1824. By means
of this Treaty Nicaragua acceptedthe Annexation of Nicoya by Costa
Rica;Costa Rica for her part recognizedthat Nicaraguawas the entiand
sole sovereign of the SanJuan River and that her border with Nicaragua
did not reach as far as the coast of Lake Nicaragua. In this Treaty
Nicaragua also granted limited righofnavigation to Costa Rica in part
of the SanJuan River. The extent of these rights of navigation of Costa
Ricaisthe issuepresently beforethe Court.
1.2.7 This sectionprovides an overview ofthelegal historof the issues related
to the limited rights of navigation were granted to Costa Rica in the
SanJuandeNicaragua River.
A. THE SAN JUAN RIVER UNDER SPANISH RULE (1527- 1821)
1.2.8 Costa Rica asserts in her Memorial that "During the periodof Spanish
colonial rule the San Juan never belonged exclusively to any one of the
provincesof the Captaincy-Generalof~uatemala."~'
1.2.9 Not content with the previousmisstatementof the facts,Costa Rica claims
that at the timeof independence fromtheKingdomof Spain,both banks of
the middle course corresponding tothe Iawercourseof the San Juan de
Nicaragua River were part of the Province of Costa Rica, whilst
Nicaragua's sovereigntywas limited to the first fifteen leagues starting
CRM, para.2.p,9.
18 very clearly that "the mouth of the Desaguadero (San Juan
River). .belongsto Nicaragua.. .32.
1.2.I2 Finally, Costa Rica'sclaim that during all the colonial periodand until the
moment of independence of both Republics (1821 j,the San Juan de
Nicaragua River was a water course shared by both colonial provinces
lacks historical documentary support. Apart from this, the geography of
the area belies this assertion. Whilst there were no roads from the Costa
Rican settlements to the San Juan River, the Province of Nicaragua
enjoyed safe and speedy communication withthe San Juan de Nicaragua
Riverfromall its majorpopulation areas,throughLake Nicaragua.
B.THE POST-INDEPENDENCE AND FEDERAL PERlOD (1821 -1838)
1.2.13 Shortly after independence,when Nicaragua's internal rivalries heated up
to cause the first Civil War(I 8241,the Government of Costa Rica exerted
pressureon the authorities and the population of the Nicaraguan District of
Nicoya in order to annex it to itsjurisdiction. The pressure resulted in a
declaration by authoritiesof the District of Nicoya of annexation to Costa
Rica (1 824).
29
According toSpanish Colonial law, applicablei1821,the Costa RicanTerritorwas: "... from
the North Sea [CaribbeanSea]to the South Sea [PacificOceanin latitudand in longitude from
the border of Nicaragua in theProvinceof Nicoya,straight to the valleys of Chiriqui,up to the
Province of Veragua, on the southern part, and onthenorthernpart, from the mouths of the
Besuguadelero , at belongto Nicaragua, ad1across the lund,to the Province of Vwagua ..."
(RoyalCharter of 1573-Article 12);NCM, Annex 86. Also the Academia Costarricense de la
Historiahasstatedthat:"..it would notbe unti573, withthe Royal Chartergrantedto Artieday
Chirinos, that significanchango eccussedwith respecto the limits. This latter date would also
fix the limits that would reign duringtheentire colonial regime." AcademiaCostanicenselae
Historia:IYCendenariode laentrada de Cuvallbtaa CostaRicu. 1561-1951. San JosiImprenta
Nacional,1961,pp. 45.
201.2.14 As things stood, the Federal Congress issued a Decree on 9 December
1825, which provided in Article 1:"For the time being, and untilthe
demarcationof the territory of the Stateis carriedout asprescribed in Art.
7 of the Constitution, thePartyof Nicoya will continue separated from the
State of Nicaragua and annexed to that of Costa ~ica."~'The words 'ffor
the tiwe being" and "until the demurcatiun" reflected the transitory
situation of the territory of Nicoya, claimed by Nicaragua as legitimate
owner.
1.2.15 Costa Rica continued to recognize the colonial borders in her first
Constitution of 1825where she defines her territory under Article 15, the
foliowing way:"The State's territorywill extend, for now, from West to
East, from El SaIto River, which divides it from that of Nicaragua, up to
the Chiriqui River, which is the border of the Republicof CoIombia,and
, from North to South, from one sea to the other, being its limits on the
north the mouth of the SanJuan River and the shield of Veraguas, and in
the souththemouth of theAlvaradoRiverand that of the ~hisi~ui"~( 'See
Sketch Map 3). It is important to point out the coincidence between the
languageof the Royal Chatter of 1573and the Costa Rican Constitutionof
1825.The River, El Salto (within the confines of the Nicaraguan District
of Nicoya) and the mouths of the San Juan River composed the
westemmost and easternmost points that separatedthe territories of the
Provinces of Costa Rica and Nicaragua since the colonial period. These
points made up the southern boundariesof the Nicaraguan District of
Nicoya. This was another, explicit recognition that the District of Nicoya
and the San Juan River both belonged to Nicaragua during the Colonial
Period(See Sketch Map4).
- -
30NCMAnnex55.
CRM,VQ~6 ., Annex193,p.769.
211.2.16 The 1825 Federal Congress of Central America's decree was not only
temporary, it was not ratified by the respective State Congresses as
prescribed in the Fundamental Charter of Central America.On her part,
Nicaragua vigorously and consistently claimed her rights over these
territories before theFederalCongress.
1.2.17 In 1838,at the time of the dissolution of the Central American Federation,
the Federal Authoritieshad not undertaken any action to solvethe matter
of the temporary annexation of the District of Nicoya to Costa Rica. Costa
Rica's unilateral decisionnot to returnthe territory temporarily annexedto
it by the Federal Congress was thereon, the causeof constant friction with
Nicaragua.
1.2.18 As will be seen below, this dispute would affect the bilateral relations
until their definitive settlement underthe Treaof Limits of 1858.Before
this Treaty was signed, Nicaragua had not accepted Costa Rica's
annexation of Nicoya (Guanacaste)as definitive and irrevocable.
C, THE POST-FEDERAL PERIOD (1838-1848)
1.2.19 Disregarding the accepted principle of utipossidetis iuris,and setting
aside the territorial borders previously established in her own 1825
Constitution, Costa Rica staked outnew territorial claims for the first time,
by granting constitutional rank to her thesis of "natural limits" in her
"Decree of Bases and Guarantees"of 1841 ", according to which her
northern border began at the mouth of the La Flor River (on the Pacific),
j2CRM,Vol. 6, Annex194.
22 continuing along the southern bank of Lake Nicaragua and the SanJuan
River, down to the mouth of the latter on the AtlanticOcean. That is, by
her own Decree Costa Rica made herself a riparian of the coveted Lake
Nicaragua andher outlet to the Atlantic,the SanJuanRiver. Undoubtedly,
this decision "constituted a milatera1 act that logicallydid notobligate our
northern neighbour [~icara~ua]"~~,as confirmed by a Costa Rican
historian.
1.2.20 In an apparentattempt to conceal the weaknessof herhistorical claims,
Costa Ricaportrays the borders fixedin the 1825Constitution asbeing the
equivalent of those appearing in her 1841 Constitution. Fneffect, Costa
Ricaaffirms inherMemo~.ial:
"The fundamental Law of the State of Costa Rica of 25
January 1825, Article XV, reasserted the limits of Costa
Rica, establishing that the territory reached both seas and
extended fromsouth to north, being her limits on the north,
the mouth of the SanJuanRiverand the shield of Veragua.
Likewise, the Decree of Basis and Guarantees of 1841,
established the limits of the national territory of Costa
Rica, declaring the limit of the national territory in the
followingterms:
"On the west, the La Flor River and continuing
alongthe shore of the Lake of Nicaragua and the
San Juan River, down to the mouth of the latter
on the Atlantic Ocean; on the north, the same
ocean fromthe mouth of the SanJuanRiverto
the Shieldof ~era~ua."~~
33She, Carbonell,JorgeFrancisco,"HistoriadiplomitdeCostaRica(182 1-1910)"SanJosC,
C.R.,EditorialJuricent,996,p.70.
34CRM,para.2.13.
231.2.21 Inother words, Costa Rica attempts to portray both constitutional texts as
concurring in their descriptioof the borders with the State of Nicaragua,
Such and attempts flies against the clear wording of the legal texts. Thus,
Costa Ricaconveniently leavesout the complete text of ArticleXV of her
first Political Constitution of 1825, which provides as follows: "The
State's territory wit1extend, for now, from West to East, from the Salto
,135
kver, which divides it fromthat of Nicaragua,.. .
1.2.22 Furthermore, as regards the border with Nicaragua, both Constitutional
texts do not concur. The 1825 Constitution recognizes the colonial
principle of wtipnssidetis iuris based on the 1573 Royal Charter, which
established that the division betweenboth provinces was located "from the
border of Nicaragua in the Province of Nicoya," (inthe South Sea) and,
"...,fromthe mouthsof the Desaguadero, that belongto Nicaragua ..."(in
the North Sea), while the 1841 Constitution unilaterally modified the
colonial borders in violation of the utippossidetisiuris principle thathad
been accepted by bothcountriesat independence.
1.2.23 To summarize, Costa Rica is incorrectwhen she states that the principle of
uti possidetisiuri sas determined by the Royal Charter granted to Diego
Gutierrez in1540~C "osta Rica is also mistaken when it points out tothe
Court that the San Juan River did not belong exclusively to the territorial
district of the provinceofNicaragua during the colonialperiod37;and now
it is being inaccurateagain when she statesthat her first and second
Political Constitutions concurred with respect to the definition of uri
35CRM, Vol.6, Annex193,p.769.
36CRMparas.2,08and 2.10.
j7CRM para.2.08. passidetis iecl-is3',thus suggestilthat since 1540 Costa Rica was a
riparian of the San JuanRiver.
D.PERIOD OF INTERNATlONALIZATI OFNTHE DISPUTE
1.2.24 Thepossibility ofcutting acanal across the Central American isthmuswas
recognized early on by the Spanish conquistadores. The two routes that
were considered ran one through Nicaragua andthe other through Panama.
The Nicaraguan route from the Atlantic:would run up the San JuanRiver,
cross Lake Nicaragua, and be completed by a channel dug through the
narrowisthmusof Rivas on the Pacific.
1.2.25 After independence from Spain, when the key tothe canal route through
the SanJuan river and lakeNicaragua rested on even weaker hands than
that of the waning Spanish Empire,other strongercontestants for this route
camemoreopenlyinto play.
1.2.26 The most difficult international problems that Nicaragua has faced have
usually been related tthispotentialasa canal route. A keen observer,the
Minister of the United States in Nicaragua in 1913, Mr. George Weitzel,
considered that these Nicaraguan problems had their origin in the
possibilityof the canal route: "In all the cases of controversies of
Nicaragua with Europe, Mexico and Colombia, the true cause of the
problem was desire tocontrol the route of the interoceanic channel."In
this enumeration of interested outsiders Minister Weitzedidnot mention
3 8 ~ para.2.13.
39~erican PolicyinNicaragua.MemorandumontheConventionBetweentheUS and Nicaragua
relatito anInteroceanCanal and a NavalStationinthe Gulfof Fonseca,signedat Managua,
Nic. on8February1913.By GeorgeT. Weitzel,FormerAmericanMinistetoNicaragua,1912-
1913.Washington,GovernmenPt rintingOffice16,p7.
25 William walkeq0 and others of his compatriots that had also shown
extreme interest in the Nicaraguan canal route that at one time was even
referred toas the"fiiibuster freeway7"'
1.2.27 The fatal attraction of this canal route has also tainted the relations of
Nicaragua with her neighbours. Costa Rica in particular always viewed
with longing the advantagesof LakeNicaragua and the SanJuan River. It
hasbeen a temptationso near and yet so far..
I.First stage: thethreatofEngland and her alliance with Costa Rim
1.2.28 Afterthe withdrawal of Spain, Great Britain decidedto "resurrect," her old
protectorate over the Miskito Indians that lived in the Caribbean Coast of
Nicaragua. Great Britain had renounced her claims to this "protectorate"
by virtue of the Treaties of Peace celebrated with Spain in 1783and 1786.
Butthis time Great Britainwent beyondher previous claims. She extended
the geographicalarea of the protectorate furtherto thesouth, in such a way
as to include the mouth of the San Juan Riverand the Nicaraguan port of
San Juan del Norte located in the estuary. Thus, on 1 January 1848
combined British and Mosquito (Miskito Indians) forces disembarked at
the port of San Juan de Nicaragua, lowered Nicaragua's flag, and
appointed authorities on behalfof the Mosquito King.
PO"walkerbecame presidentof Nicaraguaw July 12, 1856, and maintained himself againsta
coalitionofCentralAmericastateuntilMay 1, 1857.In ordertoavocapturehe surrendereto
the United States Navy and returnedto the United States.""Walker,William."Encyclopltdin
Britunnicu2007.EncyclopzdiaBritannica2006Ultimate ReferenSuiteDVD28 Apt.2007.
4'Bermann,Karl: "Under the Big Stick:NicaraguaandtheUnitedStatesSince 1848"(SouthEnd
Press,Boston1986),p.91. TheUnitedStatescitizens whoinvadedNicaraguain the 1850swere
referredoas "filibuster(filibusters).TheirleaderwasWilliam Walker.
26 1.2.29 Costa Rica saw an opportunity to obtain British recognition for her
territorial claimon the southern bank of the San Juan River as well as to
obtain a rightof navigation on the river for her wares under advantageous
conditions. Therefore, Costa Rica approved the British use of force,
proclaimed her recognitionof British claims and inreturn obtained British
support for her ownclaims. This diplomaticaction,in contravention of her
previous official position was repudiated by the rest of Central American
Governments who felt equally threatened in their own territories by these
British claims andactions.42
1.2.30 Costa Rica'sbacking of Great Britain's reinstating and expansion of the
Protectorate it had imposed on the Mosquito Indians, further
internationalized the dispute. Thus, faced with this threat, Nicaragua
soughtto enter into an alliancewith the United Statesof America.
2. Secondstage: The[ransit route andthe colzcession conlracb
granted by Nicaragua 60 S.concessionaires
1.2.31 The interest of Great Britain on the transit and canalroute through Lake
Nicaragua and the San JuanRiver found her counterpart in that of the
United States of America. The discovery of gold in California in 1848
spurred a multitude of travellersto that territory and transit through the
Central American isthmus became of strategic interest to the United
States. The main routes followed were through Nicaragua and Panama.
" Costa Rican historianClotildeObregbnrecognizeshercountry'sless than candid strategin
theseterms:"CostaRicu ucceptedthelimitsgiven by theEnglish.eventhoughyears earliithad
stated that the Mosquito territdidnot extendto the SunJuan [...IChristi[...Islated that
[Costa Rica]had o right offieenavigationfrom the confluenceof the Surupiq[with theSan
Juan] up to the ozdtle[...IThefact that Costa Rica was dealing witha Britishconsular
representativeacct-eddiebefore the Mosquito King.was a terrible tactic, even during those
moments of crisi.." Obregon,Clotilde."EIrio San Juanen la luchade las potencia(1821-
1860)':SanJose, C.R.,EditorialUniversidaNacionalaDistancia,1993,pp. 93-94.
27 The Nicaraguan route, located further ta the North than Panama, was
shorterby several hundred miles and even cheaper for those sailing from
the east coast ofthe United States to California. Consequently, the U.S.
government, in view of the British attempts to control any feasible canal
route through Nicaragua, countered by promoting a canal built by a US.,
private company.43
1.2.32 Three companies -two U.S. and one British enterprise- were openly
competing for a canal contract in 1849.The contract was finally awarded
to theAmericanAtlantic andPacificShip-Canal Company, established in
New York by agoup of investors headed by Cornelius Vanderbilt. The
contract was concluded and signed on 27 August 1849. A short review of
these concessions maybe appreciated below in thefollowing section44.
3.TheAnglo-AmericanTreaty:Clayton-Bulwer qf 1850
1.2.33 The possibilityofa transatlantic canal in Nicaragua under control of the
United Sates,increased diplomatic tensions between this Government and
Great Britain. In order to avoid a major confrontation both countries
entered into the so called Clayton-Bulwer Treaty, on 18 April 1850.
According to its preamble, the object ofthetreatywas to setforth and fix
theirviews and intentions "with reference to anymeans ofcommunication
by Ship Canal, which may be constructed between theAtlantic and Pacific
Oceans,by way of the river SanJuan de Nicaraguaand wither or both of
43Rosengarten,Frederic Jr.; "Freebootersmust die!" HaverfordHouse, PublisWayne
44nnsylvania,p. 59.
NCM,paras. 1.3.10-1.3.18.
28 the Lakes of Nicaraguaor Managua, to any port or place the Pacific
ocean .lA5
1.2.34 Article I of the Clayton-BulwerTreaty further asserted that neither Party
would ever "obtainor maintain for itself any exclusive control over the
said Ship Canal", and that neither Party would "erect or maintain any
fortification commanding tsame''6.
E.PERIOD OFTHE NATIONA ALNTI-FILIBU STARR(1855-57)
12.35 In1855,asa consequenceof Nicaragua's Civil War betweenthe legitimist
(conservative) party and the democratic (liberal)party,American soldiers
of fortune known as filibusterers (filibusteros) started arriving in
Nicaragua. In the course of the hostilitiethe United States' based
AccessoryTransit Company,at the time facingpending claims for fiscal
payment fromthe Nicaraguan Government, initially entered into collusion
with the leaderof the filibusterers, William Walker. TheCompanyoffered
its steamersto transport Walker's mercenariesat no cost. Walkeron,
displaced the parties at war and proclaimed himself President of
Nicaragua, not without first convincing the coalition government, which
he already controlled,to revoke the 1849 contract granted to the US.
Accessory Transit
1.2.36 Costa hca declared war on Walker, stating (in the Presidential
Proclamation) that was not drive byanydesir eoconquer territories,
but simply wanted to aid Nicaragua against the Walker invasion. The
45Clayton-BulwerTreCRM, Vol,2,dnnex 4.
46Ibid.
" NNCM,Annex56.Decreerevokingtherights and privilegetothe AmericanAtlantic
and PacificSCanalCompanyandAccessoryTransitCompan18Februar1856.
29 Governments of Guatemala, El Salvador and Honduras also declared war
on Walker.
1.2.37 Betrayedby Walker, US., financier Cornelius Vanderbilt alsorchestrated
a military andfinancial plan to defeat him and the other usurpers of his
interestsin the accessoryTransit Company. To those ends, Vanderbilt
provided advice and finance totheCosta Rican expeditionthat would take
over the transit route and the Company's steamers. With the loss of the
transit route the filibusterewere isolatedand were not able to receive
reinforcements and materiel to resist the attacks of the combined Central
American forces. In May 1857 Walker capitulated and abandoned
Nicaraguan territory.
12.38 The end of the bloody war, and Costa Rica'ssupportduring the struggle
created a positive climatein Nicaragua to subscribe with Costa Rica the
1853 Treaty of Limits, known as the Juarez - CaAas Treaty (not to be
confused with the definitive 1858 Treaty of Limits, known as the Jerez -
Cafias Treaty), that sought to put an end to the territorial and boundary
dispute.
1.2.39 The 1857Juarez-CafiasTreaty of Limits was not ratifieby Costa Rica for
reasonsexplained below; however the stipulationsof the Treaty are ofthe
utmost importance, since it is one of the closest precedents to the 1858
Jerez-Catias Treaty of Limits. Its main objective was the solution of the
intractable question ofsovereignty over the Province of Nicoya.The first
articleofthis Treatywas addressed tothis purpose:
"First: The Government of Nicaragua, as a sign of special
gratitude to the Government of Costa Rica for the solid
30 determination and great sacrifices made for the cause of
national independence, waives, takes and put away every
right on the District of Guanacaste, which isnow calledthe
Province of Moracia of the Republic of Costa Rica, to be
understood, held, and acknowledged, from now and
forever, as an integral part of said Republic, under the
soverei n jurisdiction of said Government.. .."(Emphasis
added) 6
1.2.40 This Treaty was signed soon after the end of the firstwar against Walker
ata moment when CostaRicahad retainedmilitary controlof the SanJuan
and the transit route through Nicaragua. Nonetheless, it is important to
point out thatthe Republic of Nicaragua when renouncing its claim to the
District of Nicoya (also called Guanacaste or Moracia, at different times),
took painstaking care to safeguardits sovereignty over the San Juan de
NicaraguaRiver.Thus, in tune with its obligations and economic interests
it had theprecaution to establish clearly the nature of Costa Rica'srights
of navigation, which was to be limited to "articles of trade", either for
international, bilateral or local trade. This was a reaffirmation that Costa
Rica accepted to be excluded perpetually, from the right to transport
passengers.49
1.2.41 Inthe end, this 1857Treaty of Limits was not ratified by Costa Rica. The
reason for this wasthat after the withdrawal of Walker, Costa kca seeing
herself in control ofthetransit routeand of the steamersdestined for her
48
Juarez-CaiiasTreaty,6 July1857CRM Vol.2, Annex5.
49Aboutthis Treaty,Costa RicanhistorianSaenzCarbonellcomments: "Ingeneralterms,and
consideringthatat thattimetheregionof Rio SanJuanwasunderCostaRicanmilitarycontrol,
the agreementwas relativelybalanced becauseNicaraguarenouncedits claims over Moracia
(Guanacaste)and Costa Rica renounced itclaimsover the wadersofthe Sun Juan and the
Southernshoresof Lake Nicaragua ;esides,Nicaraguareceivedthe zone betweenthe La Flor
River andthe bay of Salinas,which was consideredimportantfor the inter-oceanictransit."
(Emphasisadded) . ienz Carbonell,JorgeFrancisco,"Historiadiplomiticade CostaRica(-82I
1910)".SanJose,C.R.,Editorialuricentro,1946,p236.
31 business exploitation, decided to transform her anti-filibusterer campaign
into awar of territorial conquest.Inan attempt to implement her territorial
"conquests", Costa Rica signed a Concession with William Webster (14
July 1~57)~' ceding rights for the business exploitationof the transit route
that passed entirely through Nicaraguanterritory.5'
This intention of territorial conquestby Costa Rican Government can be
appreciated in the diplomatic note sent, on 30 July 1857,by Lewis Cass,
Secretary of State of the United States, to William Carey Jones, Special
Agent of the United States to Central America,: "SIR: Reports have
reached here.. .that the Government of Costa Rica ... intends to
appropriate to itselfportions of the Territoryof Nicaragua, thusconverting
the war which has just been terminated by the accomplishment of the
object for which it was avowedly undertaken intoa scheme for territorial
acquisition. Such a design is so unjust in itself, in view of the
circumstances...she would violate the solemn pledges given when she
proposed to go to the aid of Nicaragua by attempting toconvert thisinto a
war of conquest." 52
Webster -Harris-EscalanteContract, 14July 1857;NCM, Annex16.
5'About this contract, Saenz Carbonellstated: "Through the Escalante-Webster, Costa Rica
gmnted tothe Britton(Webster) andHarrisexclusive rights over theTransit route,through the San
Juan ,heLake Nicaraguaand theSapoQ River.As consideration Websterand Harrisagreed to lend
Costa Rica500,000pesos and part of the revenues fromthe exploitation of the tran..Ouroute
country wouldtryto get Nicaragulo grant those eexlusive rights over the Trouteto Costa
hca or to approve the ierms ofthe contract. In this contract, the Escalante-Webster, Costa Rica
again granted concessions over Nicaraguan territory(huthad neveclaimedbefire. This time
it granted rights of trovertLa Virgen and San Juan del sur and the land in those localities."
(emphasis added); Saenz Carbonell,rgeFrancisco,"Historiadiplombtica dCosta Rica (82 1-
1910)".San Jost,C.R., Editorial Juricentro, 1p240.
5%~ ~ewisCass,Secretaryof StateoftheUnitesStates, to William Carey Jones,Special Agent
of the United StatosCentral America. Washington,30July 1857.DiplomatiCorrespondence of
the UnitedStates,FnteramericanAffairs1831-1850.William R. Manning Volumen EV.Central
America1851 -1860,p.95. NCM, Annex 37.
321.2.43 In her effortsto take by force thetransit route and pressureNicaragua into
accepting the concession granted to Webster, on 14 October 1857 Costa
Rica gave an ultimatum to the Government of Nicaragua tohand over the
lakesideport of San ~arlos~~,located atthe mouth of LakeNicaragua into
the San Juan River. This ultimatum was considered by President Tornis
Martinez as a declaration of war and the Nicaraguan Government
responded with a decreedated 19October 1857,that stated the following:
"Art. 1. Nicaragua accepts the war declared by the
Government of Costa Rica and will vindicate its rights
which have been deliberately violated by the conduct of
that Government.
Art.2. The Republic of Nicaragua will protect and preserve
its rights along the entire transit route, from San Juan del
Norte, though the river andlake,to SanJuan del Sur, as
well as the rights ithas in the district of Guanacaste,
includingits lands, forestsand rivers.
Art.3. The necessary forcewillbe organized to execute the
provisionsof thisdecree."54
1.2.44 The situation worried the United Statesthat saw her interests threatened.
Thus, in a note sent to the Minister of Foreign Affairsof Nicaragua, D.
Gregorio Juarez, on 17 October 1857, by the US special envoy to the
Republics of Nicaragua and Costa Rica, the position of his Government
was expressedin these terms:" ..Itisthe opinion of the government of the
United Statesthat the government of Costa Rica in inaugurating thewar of
which Nicaragua was lately the scene, precluded herself by her public
53Note fromCoronelJorge Cautyto CoronelSegundoCuarema, Commanderof theSan Carlos
Fort,SanCarlos, 14October1857;NCM,Annex22.
54DecreeNo. 139throughwhichNicaraguaacceptedthewar declared byCosta Rica. Managua,
19October 1857.Publishedatthe OfficiaGazetteof the Republicof Guatemala,Monday I6
November1857E .xterior.Nicaragua,NCM,Annex57.
33 declarations from any territorial acquisitioor advantages in the resultof
it; andthat therefore if the two States still differ as to a divisoline,the
positionin which they were anterior to the war ought to be restored, both
in respectof fact and law, that is, leavingthe Republicof Nicaragua in the
exclusive jurisdiction of the transit. It is further the opinion of the United
States that the route by way of the river SanJuan and Lake Nicaragua
ought to be under a sole jurisdiction, and that that jurisdiction ought to
remain with the State which,in fullpossession of it, heretofore granted the
use of it."55
1.2,45 The strongestregional and international opposition to Costa Rica's attitude
notwithstandings6, she did not refrain from attempting to seize to her
advantage the favourable circumstances in order to impose upon
Nicaragua "her" territorial and boundary ambitions. Nicaragua was
prostrated economically and militarily after years of civil war that had
decimated her population and razed her productive infrastructure.Aside
from the Costa Rican military occupation, Nicaragua had to face a new
invasion by the Walker-led filibusterers, which in November 1857 had
disembarkedon the port of San Juan de Nicaragua in an attempt to retake
control of the country.
1.2.46 The news of the arrivalof the filibustererhad the effectof prompting the
withdrawal of the Costa Rican occupation forces in the San Juan de
Nicaragua River, but not before forcing Nicaragua under these dire
55Note fromWilliamCareyJones, Special Agent of the UnitedStatesof Americato Central
America, toGregorioJuQrez,Ministerof Foreign Affairsof Nicaragua. Managua, dated 17
October 1857. Diplomatic Correspondenceof the United States, Inter-AmericanAffairs
Department ofState,1831 -1860. WilliamR. Manning,Volume IV. Washington,pp. 613-617.
NCM, Annex 23.
59~e, forexample,"Nicaraguay CostaRica". Edicibndel Centroamericano.4 October1859,
NCM,Annex 80.
34 circumstances to sign a detrimental Treaty of peace with Costa hca on 8
December 1857 known as the Martinez - ~afias~~.Fortunately, the
filibusterers were quickly capturedand taken to theUnited States aboard a
United States war frigate before they were able to advance further into
Nicaraguan territory. The Costa Rican withdrawal and the capture of the
filibusterers allowed Nicaragua to reclaim control ofthe San Juan route,
and to immediately reject on January of 1858 the Treaty of Peace which
circumstances had forcedit to enter into with Costa Rica and which in any
case had not entered intoforce.
1.2.47 The rejection of these last agreements cleared the way for both
Governments to negotiate, under less duress for Nicaragua, a Treaty of
Limits that would definitively settle the territorial dispuas,well as the
nature of the navigational rights that Nicaragua was willing to grant Costa
Rica. This was accomplished in a single instrument, a solemn Treaty of
Limits known asthe Jerez-Cafias,of 15April 1 85~~'.
1.2.48 The Costa Rican Memorial systematically differs from historical facts with
regard to the period prior to the signature of the Jerez-CaiiasTreaty of
Limits of 1858. In effect, Costa Rica is not consistent with well known
historical facts when it states in Memorial:
a. That duringthe colonial period, the San Juan Riverdid not belong
exclusively to any of the Provinces that integrated the Captaincy-
57CRM,Vol.2,Annex6.
jRJerez-CafiTreaty,15April1858;CRM, Yol.2,Annex 7, pp. 54-60.
35 General of ~uaternala~~.This statement lacks historicalsupport
given that the SanJuan deNicaragua River belonged exclusively to
the territorial districtof the Provinceof Nicaragua since 1573.
b. That the colonial border between the Provincesof Nicaragua and
Costa Rica was constituted by the Royal Charter dated 6 May
154160.This statement is ahsoinaccurate given thatthe border was
ultimately determinedby the later Royal Charter granted to Diego
de Artiedaon 1December 15 736'.
c. That her first political constitutions(1825 and1841) concurred in
pointing out the colonial border between Costa Rica and
~icara~ua~~ T.his statement is inaccurategiven that these texts do
not concuron thisquestion. The Constitutionof 1825accepted that
the border was ruled by the principle of uti possidetis iuris and
hence by the limits set by the Royal Charterof 1573. The
constitutionaltext of 1841ignores this in order tojustify the illegal
annexation ofNicaragua's Districtof Nicoya.
d. That prior to the Jerez-Caiias Treaty ofLimits (1858), Costa Rica
unilaterally or jointly with Nicaragua participated in the
canalization or transitcontracts granted in the San JuanRiver and
Lake of ~icaragua". This statementlacks any historical or
documentasy support given that Costa Rica did not participate
"see CRM,para.2.08.
60SeeCRM, para2.09andVol. 2,Annex 2.
61RoyalChartergrantetoDiegoddeArtieda1 December 1573WCM,Annex 86.
" SeeCRM, para2.13.
63SeeCRM,para.2.16.
36 effectively in any unilateral or joint exploitawith Nicaragua of
passenger transit through the SanJuan de NicaraguaRiver.
e. That during the period of the National War or Filibuster War
(1856-1 857), Costa Rica remained active in the region of the San
Juan de NicaraguaRiver and controlled the fluvial steamers that
were destined to develop the concession (for passenger transithat
was granted totheAccessoryTransit This statement is
misleading since it fails tomention that itwas a temporary and
illegal militaryoccupation by Costa Rica in the San Juan de
Nicaragua River, and furthermore, that the illegal concession
contract granted by Costa Rica never entered into force. This
episode simply reflects a blatant attempt by Costa Rica to
implement her occupation of Nicaraguan territory by force, manu
militari a, attempt which was rejected by Nicaragua and
denouncedby the international community.
1.2.49 Nicaragua, on the other hand, has furnished documentary evidence that
when she entered into thi negotiationof the Jerez-CGas Treaty of Limits
of 1858, she had exclusiveIythedominion and sovereignty of the SanJuan
deNicaragua kver and that the District of Nicoywas part ofher territory
under the principle of utipossidetis iuris.Under these circumstances,
Nicaragua undertook a negotiation that entailed surrendering to Costa Rica
her rights to the District of Nicoya with the purpose of being able to
peacefully and undisturbed enjoy herexclusive dominion and sovereignty
over the waters of the SanJuan de Nicaragua River. The very narrow and
limitedright of free navigation with articles of trade, or wares, (objetos de
h4SeeCRM,para.2.21.
37 comercio) that was also granted to Costa Rica in part of the San Juande
Nicaragua River, should be understood within the context of the 1858
Treaty of Limits.
Section 1.3
Precedents and subsequent practice relatedto the 1858 Jerez - Caiias Treaty
As indicated in the previous section, after independence in 1821 there
were several diplomatic attemptsto settle the controversyoriginating in
Costa Rica'sambitions over theSanJuan de Nicaragua River.Some of the
Agreements resulting form these diplomatic endeavours werenot ratified
by either side, others were ratified by one or the other. Nonwere valid.
Their importance lies in their usefulness as ~ruvuuxpripurutoires to the
1858Treaty of ~irnits,~~ and thus as a means of understanding the careful
wording of this Treaty, These instruments were also taken into
consideration in theinterpretationof this Treaty by thAward renderedby
President Clevelandin 1888".
1-3.2 Concurrently with these Agreements, Nicaraguasigned a series of Transit
Concessions and Canal Contracts which were not objectedby Costa Rica
and hence indicate what the Parties understoodto betheir respectiverights
at that poinintime.
1.3.3 Other documents are also of assistance in this interpretation suchas the
written instructions or briefing papers given by the Governmentof Costa
Rica to her negotiators, the Yearbooks of the Costa Rican Foreign
65Jerez-CafiasTrea15April 1858CRM, Vol.2,Annex 7,pp.54-60.
66CRM,Vol.2, Amex 16.
38 Ministry, the exchange of notes between thetwo countries or of either
government with third parties and the statements made by authorities on
both sides.
A. PRECEDEN TS THE 1858 TREATY
I. Treaties
1.3.4 At a very early stage of independent life, when territorial differences
sprung forth, several attempts were made to settle these issues; for
instance,through The Treaties of Granada of 16 August, 1823" and Le6n
of 9 September 1823~~.Although these treaties were not ratified, the
language is revealing, for they confirm Nicaragua's sovereignty over the
San Juan deNicaragua River.
1.3.5 Nicaragua's exclusive sovereignty over theSan Juanhver and Costa
Rica's restricted right to navigation osaidriver are referred tin other
texts prepared by the parties duringthissame period. In the Marcoleta-
Molina Treaty of 28 January 1854, itis established that "the citizens of
Costa Rica shall be allowed to freely enter and leave by the port of San
Juan with their vessels and merchandise, and to navigate, except by
steurner on the Sarapiqui River and the tributaries of the San Juan
,969
v.. (ernphasisadded).
1.3.6 This Treaty also clearly shows that Nicaragua had dominion and
possession of the San Juan River and that Costa Ricaacknowledged this
67Montealegre-Velasoreaty.Granada, 6August1823NCM,Annex 1.
'"ontealegre-solis Treaty.Le9September 1823;NCM, Annex2.
G9SeeMCMChap.2, paras.2.12and4.i.41Annex 4.
39 situation as is evident from the Costa Rican attempts to obtain
authorization to navigate the San Juan River. The Treaty also evinces that
atthe time Nicaragua did not consider granting any rights of navigation to
Costa Rica inthe SanJuanRiver with steamers. Furthermore,that the right
granted by Nicaragua to Costa Rica in relation to a limited navigation on
the SanJuan referredonly merchandise.
1.3-7 This Treaty also confirmed what had already been indicated in the
Webster-Crampton Propositions of 1852", which excluded Costa Rican
navigation by steamerswith passengers.
1.3.8 On 6 July 1857 the Juarez-Caiias rea at ^as concluded with the
objective of entering into a definitive treaty of limits betweenthe two
countries. This treaty recognizes that Guanacaste is "from now and
forever" 72 part of Costa Rica and that Costa Rica shall freely use the
waters of the San Juan River to navigate and transport articles of trade
(objetosde comercio). Althoughthe treaty wasnot ratified by Costa Rica,
the negotiations carriedut at the time by the parties showed the intention
of both governments to achieve an integral territorial agreement,
attributingGuanacaste to Costa Rica; exclusive sovereignty over the San
Juan River to Nicaragua; and the restricted right ofreenavigation over
saidriver (witharticles oftrade) to Costa Rica.
''Webster-CrarnptoPropositions,April 1852NCM, Annex 88andbelowparas. 1.3.19-
1.3.20.
''CRM, Yol.2,Annex5 and NCM,paras.1.2.38-1.2.and2.1.26.
72CRM, Vo1.2Annex 5.
40 1 , ' ' I
I
~ 2. CanalizatiC onntracts and Related Treatie sgned before 1858
1.3.9 As indicated above, Nicaragua also concluded a series of contracts with
private foreign companies, as well as treaties with other states in relation
to concessions for the transitof passengers and for cutting an interoceanic
canal through Nicaragua that would make use of the San Juan River.
Thesecontracts signed with privatepartiesand the treatiesthen concluded
by Nicaragua regardingthese same matters, clearly confirm Nicaragua's
full exercise of sovereignty over the San Juan River, including the
exclusive right to navigate with passengers and the consequential and
equally exclusive right to grant concessions and concede the right to
navigation with passengers on the river. That is the reasonwhy this right
was expresslyexcluded fromall agreements with Costa Rica prior to and
including the Treatyof Limits of 1858. This right has never been the
subject of negotiation. Nicaragua has always had, as will be seen and
confirmedbelow,the exclusive rightto navigatethe river with passengers.
1.3.10 The contract signed with the Amet-icon Atlantic and Pacific Ship Canal
~ornpany~~ (Canal Company),ratified by the Nicaraguan Assembly on 26
September 1849,grantedthe company theexclusive right and privilege to
build a maritime canal, at her own expense and through Nicaraguan
territory, fromthe port of San Juan de Nicaragua to any other point in the
~acific.'~The building of the canal would conclude within twelve years
and the term of the contract was 85 years. Additionally, the company
obtained exclusive rights of passengertransitby steamship.
73Canalizationcontractenteredinto by the Governmentof Nicaraguaanda companyformeby
U.S. citizens. Zepeda-Juirez-Whi. ehn, Nicaragua, 27 Augus1849;NCM, Annex 14.See
abovepara. 1.2.32.
'4Ibid.
411.3.11 Article 23 of the concession contract granted to the Canal Company
provides: "The exclusive right acquired by the Company under this
contract to navigate on the lakes, rivers and waters of the State
[Nicaragua] withsteamshbs, from one sea to the other, shall be
understoodnot to preclude natives from free inlandnavigationon sailboats
or any other type of vessels other than steal~lsh@s".~'(Emphasis and
explanationadded).
1.3.12 Article 32 reads as follows:"The State [Nicaragua] also agrees to protect
and defend the Company with respect to the full enjoyment of the rights
and privileges granted thereto under thiscontract, and also agrees not to
grant or contract to any Government, individual,or anyother company the
right tobuild a maritime canal, railroad, or any other inter-oceanic route
through its territory, or the right to navigate on the rivers and lukes
occupied by theCompanyfor steamships, CIlongas thic sonfractremains
in force. However, if this contract ceases to have effect, then the State
shall be free to contract any other individuals or companies, as it may
deem most c~nvenient."'~(Emphasisand explanation added).
1.3.13 It should be noted that in assigning the concession ut supru, Nicaragua
acted as exclusive territorial sovereigand administrative grantor, without
any participation whatsoeverby the Republic of Costa Rica. It istherefore
surprising to learnthat,Costa Rica, in herMemorial submitted before this
Court, asserts without providing supporting evidencethat: "Most of these
contracts and treaties were negotiatedwith Nicaragua,although the earliest
contracts were negotiated by the Central American Republic and
75NCM, hex 14.
'917id. subsequent to thedissolution of the federation CostRica was also closely
involvedasa Party,solely orjointly." 77
1.3.14 In 1851, the Canal Company was reorganized, without affecting the
original concession granted by the Government of Nicaragua. The part
relating to steamship navigation inthe watersof Nicaraguawas separated
from the contract of 27 August 1849, and transferred to the White-
Charnorro-MayorgaCanal convention7', which was ratified by Nicaragua
through a decree issued on 20 August 185 1.This spun off the Accessory
Transit Company, which was limited to transporting passengers through
the Nicaraguan route.
1.3.15 The "Accessory Transit Company," whose steamships -in 1854 alone,
transported 13,128 passengers fmm New York to San Francisco and
10,461passengersfrom San Franciscoto New York,just 447 less than the
Panama route, which it had surpassedby 2,130 passengers during the
previous year. Further, the company had built a macadam road between
the port of SanJuandelSur in the Pacific and theportof La Virgen on the
Lake (in other words, along the isthmus of Rivas) and Nicaraguahad an
established port and customs facilities." After all, Commodore
Vanderbilt's company had netted 5 milliondollars during its firsyear of
operations.80
77CRM,para,2.16.
7"~~, Annex3. Charnorm-Mayorga-WhiteConventionG. ranada,Nicaragua,14August1851.
79Folhn Jr., DavidI.; "TheNicaraguaRoute".Universityof UtahPress, Jr. Salt LakeCity:
1972;Appendix B "PassangerbytheIsthmianRoutes 1848-169."p.163.
Berman,Karl:UndertheBig Stick:NicaraguaandtheUnitedStatessince 1848",SouthEnd
PresBso,ston1986,p.32.
431.3.16 In this canal contract, a clear distinction is made between "steam" ships
and "sail" ships. The former are related to passengers and the latter to
merchandise (Articles 20, 25 and 32). Similarly, the treaty affirms the
exclusive right acquired by the company to "navigate on the lakes, rivers
,381
and waters of the State with steamships, from one sea to the other ...
Nicaragua, on the other hand, commits not to ". .grant or contract to any
Government, individual, (...Ithe right to navigate on the rivers and lakes
occupied by the Company for demonstrating that this right
wasnever grantedto Costa Rica,
1.3.17 Nicaragua also agrees "...not to grant or contract to any Government,
individual, or any other company the right to build a maritimecanal,
railroad, or any other inter-oceanicroute through its territory, or the right
to navigate on the rivers and lakes occupied by the Company for
steamships, as long as this contract remains in force.. ."g'This clearly
emphasizes again Nicaragua's exclusive rights with respect to the San
Juan River, in particular in this context, to transport passengers and to
grant concessions for saidtran~~01-t.~~
1.3.18 An off-shoot of the Clayton-Bulwer Treaty was the so-called Crarnpton-
Webster Propositions of 30 April 1852. This procedure involving the
Parties to the Clayton-Bulwer Treaty attempted to settle the differences
between Nicaragua and Costa Rica. For present purposes what is relevant
''NCM,Annex 14.Article23.
''WCM,Annex 14.Article32.
R'Ibid.
R4By Chnmorro - Mayorga - White, TransitCompanyConventionof 14 August 1851, the
Company was entittedandenjoyedthe protectionoftheGovernmentof Nicaraguaon the same
termsas those stipulatin the origintreatof 27 August 1849andits amendmentof 11April
1850,regardingthe:constructiofthemaritime canal;NCM,Annex 3.
44 II
is that reference is made to thi &clusive right of Nicaragua to navigate
and dispose ofnavigation in the San Juan by steamboats.
1.3.19 It is also relevant to underline that the Clayton-Bulwer Treaty and the
Webster-Crampton Propositions coincide in that they recognize not only
Nicaragua's territorial sovereignty over the San Juan River, but also that
Nicaragua is the only State authorized to grant concessions for
canalization and the transit of persons on the San Juan River. In effect, the
Proposition states that "It is understood however that Costa Rica retains
the right in common with Nicaraguato navigate said rivers and lake by
sail vessels, barges or vessels towedbutnot bysteambut this right is inno
wise to interfere with the paramount right in Nicaragua or her grantees to
appropriatethe waters of said rivers and laketo a ship canalfromOceanto
Ocean or from the Caribbean Sea to said lake...."" Costa Rica approved
by Decree the Crampton-Webster Propositions, accepting,consequently, the
validity of the exclusive concessionsgranted by Nicaraguafor transit of
passengersthrough the San Juan ~iver.'~It is important to highlight that
Costa Rica accepted the Propositions by Congressional Decree, 87 whilst
Nicaraguadid not approve it.
ss~rampton-~ebster Propositions, 30April 1852, NCM Annex88. Asticle 3.
86The propositions provided a recommendation in Articl3fixing the limits between Nicaragua
and Costa Rica: "...shabegin on theSouth Bankof theColorado at its confluence with the ata
high water mark on said riverthence along said South Bank also at high water mark to the
confluence of the Colorado with the river San Juan thenat highi watermark along the South
Bankofthe San Juan to its source on lake Nicaragua thence at high water markalong the South
andWest Shoreof that lake to the point nearest the mouth of the river LaFlorRiver thece by a
directline drawnfrom that pointto themouth of the said rivein thePacific Ocean..CostaRica
retains the right in common with Nicaragua to navigatesaid rivers and lake by sail vessels, barges
orvesselstowed but no bysbeam..." (emphasisadded).
*'Thedecree consists of only one article, as follows: "Single Article. The assent, adhesion and
subscription thatheSupreme Governmentofthe Republic of Costa Rica has accordedthrough act
of 16Ih of the current month to the bases agreed upon in Washington on 3othof April, by
Representatives of the Governments of Great Britain and the United States, for as settlement
betweenthe Republicof CostaRica andtheState ofNicaragua over the issue of territorial limits
451.3.20 These instruments show that Costa Rica implicitly acceptedthat Nicaragua
held the exclusiveright to grant licenses for construction of the route and
also to grant the exclusive right ,tonavigate with passengers. This right
was always exercised by Nicaragua, even after1858,as isverified in the
Nicaraguan Decreeof 11September 1862,which asks that"the authorities
of the border (of Nicaragua) not to allow the crossing of foreign persons
without them presentingpassports.. .,98Costa Ricawas not excludedfrom
this regulation. The only exception refersto the Transit Company.
1.3.21 TheIrisarri-StebbinsContract ''confirms Nicaragua's rightoverthe river
and over passenger transport, granting to the company in question a
concession that authorizes and regulatestransport.
1.3.22 By meansof the Cass-Irisarri Treaty of 16November1857,'~Nicaragua
again concedes the right of transit with passengers via the river, this time
to citizens and properties of the United States, thus reaffirming the
country's exclusiveright to transport passengers on theriver. In this text,
Nicaragua granted the United States and her citizens and properties the
right to transit between the Atlantic and Pacific oceans through the
territory of the former Republic using any route or means of
transportation. However, the Republic of Nicaragua reservedthe right of
sovereignty over said route or means of communication. The Irisarri-
pending between the both countries, is hereby approItis verycleathatCosta Rica accepted
that the rigtotranspor tassengersbelongedtoNicaragua(navigationby steam).CM, Vol.6,
Annex 199.
RRDecree "Ordering the commanders of portsand perfectsofthe frontiers of Nicaragua nto
permitany foreignpersontogo intothe interiorthe country,unlesspresenting a passport issued
by the respectivministersor consulsatthe portsor places of their departure". Nicarag11,
September 1862.ArticleVII.NCM, Annex58.
" rrisarri-StebbinsContract,New Yor19June 1857.NCM,Annex 15.
90Cass-IrisarTireaty. Washington, 15November 1857.NCM,Annex 5.
46 ' ',
Stebbins Contract (19 June id57), and the Casslrisani Treaty (16
November 1857) clearly demonstrate thatat the time of the signing of the
Jerez-CafiasTreaty, of 1858,Nicaragua had the exclusive rightto navigate
with passengers on the river.
1.3.23 The Jerez-Caiias Treaty of Limits signed on 15 April 1858, was a
comprehensivesettlement of the disputes involvingthe territorial limits
between the two countries. Nicaragua, as part of the negotiations, gave up
theterritories of Nicoya and to the south of the lower right margin of the
San Juan River, whilst Costa Rica recognized the dominion and exclusive
sovereignty of Nicaragua over the San Juan River. Nicaraguafurther
granted to Costa Rica perpetual rights of free navigation, restricted to
articles of trade in a limited sectionof the river.
1.3.24 Thus, Article 2 of the treaty determines the limits between the two
countries but at the same time confirms the sovereignty of Nicaragua on
the San Juan River and regulates the rights of the parties over the same.
The Treaty gives to Nicaragua the full exercise of sovereignty over the
entire course of the waters and a limited right of navigation to Costa Rica
"con objetos de comercio" (with articles of trade)" as isestablished in its
Article6.
1.3.25 The fundamental character of the 1858 Treaty and the 1888 Arbitral
Award in relation to the boundary limits and Nicaragua's exclusive
sovereignty over the San Juan River, and the rights established therein,
have alwaysandreiterativelybeenacknowledgedby thetwo States.
91
CRM, Vo1.2,Annex7,pp. 54-50,Article6.
471.3.26A clear recognition of this in recent times maybe seen, forexample, in the
Note addressed to the Minister of Foreign Affairs of Nicaragua on 12
August 1998, by the Minister of Foreign Affairs of Costa Rica,in referring
again to the 1858 Treaty and 1888 Arbitral Award, stating that "Costa
Rica has never intended to exercise more or less tights other thanthose
granted by said instruments..."92
1.3.27 And, in another Note addressed to the Minister of Foreign Affairs of
Nicaragua on 22 May 2000, by the Minister of Foreign Affairs of Costa
Rica, the Government of Costa Rica reiterates that "It is a question, rather,
of a special regime established by a Treaty and an Award that are
characteristic ofand specificto Public InternationalLaw.. ."'3
1.3.28 This recognition is reiterated in the same manner by the President of the
Republic of Costa Rica in a Note addressed to the President of Nicaragua
on 29July 2000, which recognition is evenmore precise in relation to the
nature and relationship between the two instruments, statingas follows:
"b) that, in accordance withthe Cleveland Award of 1888,
which constitutes an obligatory interpretation of the
Caiias-JerezTreaty of Limits of 1858.. ..c) that since 888
nothing has occurred tochange thislegal status.''94
1.3.29 Also, inofficialdocuments, theGovernment of CostaRica has recognized
these instruments as governingrelations between the two countries in part
of the San Juan River. Thus, the Yearbook of the Ministry of Foreign
92CRM, Vol. 3, Amex 50.
93CRM,Vol. 3,Annex 63.
CRM, Vol. 3,Annex 66. Affairs and Worship of Costa hca, corresponding to the year 2001-2002,
affirmsthat:
"...on 11 January: Chancellor Roberto Rojas,in referring
to aspects related to Nicaragua, emphasized that Costa
Rica'sperpetual rightsof freenavigation in the San Juan
River are those established in the Cafias-Jerez Treaty and
clarified by the 1888 Cleveland ArbitralAward. 'Costa
Rica does not want any right that does not correspond to it
accordingto those internationalinstruments,. .195
1.3.30 Likewise, other government agencies have made the same reference in
relation to the juridical regime of the SanJuan River. This is the case of
the document published in 1997 by Costa Rica's Ministry for the
Environment and Energy, together with Nicaragua's Ministry for the
Environment and Natural Resources, with support from UNEP (United
Nations Environment Programme) and the OAS (Organization of
American States), regarding environmental and sustainable development
management inthe basin of the SanJuan River, which states as follows:
"The Governments of the Republics of Costa Rica and
Nicaragua reiterate that the approvalof this document and
other related documents, as well as the technical concepts
contained therein, including the concept relating to the
'basinof the San Juan River', do not affect the territorial
limits and rights consigned in the Caiias-JerezTreaty of
Limits, the Cleveland Award, the Matus-Pacheco
Convention and the Records of the Alexander
omm missio "9.
95Yearbookof theMinistryof Foreign AffairsandWorshipof CostaRica,2001-2002.Pp143-
144;NCM, Annex 79.
% "ManejoAmbientaly DesarrolloSostenible de la Cuenca del Rio San Juan.Estudio de
Diagnostic0de lCuenca delRio SanJuany Linearnientosdel PlandAccion".UnitedNations
EnvironmenPt rogrammeW, ashington,1947,p.iv.
491.3.31 The Treaty of 1858, interpreted in 1888, has not been explicitly or
implicitly modified. The rights and obligations of the parties with respect
to the use of the San Juan fiver are -only- those established by said
parties in the Treaty of Limits, concludedin 1858 and interpreted in 1888.
C. THE PERIOD FROM 1858 TO 1888
1.3.32A series of bilateral treaties were signed from 1858 to 1888" that also
serve to clarify the meaning of certain expressions such as "articles of
trade" (objetosde comevcio).It is clear that this expressionwasusedin all
cases to mean "objects" in the sense of "things", in spite of the erroneous
and self serving interpretation proposed by Costa Rica that this phrase
really means"purposes of commerce"(finesde comercio)
1.3.33 The Alvarez-Zambrana Treaty of 5 February 1883reaffirms "the eminent
3, 98
dominion" and "sovereignty of Nicaragua over the San Juan and
Coloradorivers. This is also included in the Navas-Castro Treaty of 19
January 1884,"%whh also sets the border in the zone. The above-
9r These texts includetheZelaya-Volio Convention of 13 July 1868,completed in order to
improve one of the two Atlantic portsthat of San Juan del Norte othat athe mouth of the
Colorado;NCM, Annex 6,the additional kvas-Esquivel Conventionof 21 December 1868, by
means of which Costa Rica concedes toNicaragua the watersofthe Colorado River so that, by
changing theircoursetheport of SanJuan maybe reestablishedor improvedNCM, Annex 7,the
Carazo-Sotoof 26July 1887 CRM,Vol. 2, Annex 15.
" ~lvarez-~ambranaTreaty, 5 February1883. Articl3 reads:"..corresponding to Nicaraguathe
eminent dominionand sovereigntyover the aforesaidrivers[San Juan y Colorado] and lake...";
NCM,Annex9.
Navas-Castro Treatyof Limits of 19 January 1884 was approved by the Government of
Nicaragua on 14May 1884;NCM, Annex 10.Article 1 reads: "The boundary line betweethe
Republicsof Nicaraguaand Costafica is the right bank of the ColoradoRiver, frommouth in
the AtlanticOcean untiitseparates fromtheSan Juan kver, thence it followsthe right bank of
that Riverto a pointata distanceof three English milesfromthe exterior fortifications of the
Castillo Viejo; thence runsalong the circumferenceof a circle with a radius of three English
miles from theexterior fortificatioand ends on the same rightbank of the San Juan River;
thence fromths same bank up to a distance of three English milesfrom a point on the bank in
front of the SanCarlos fort;thence it runs alongthe circumfeofanothercircle,witha radius
50 revenue cutters, Furthermore,the Arbitrator could decide any other point
expressly submitted by the Parties once the decision on the validity of the
Treaty had been taken. he question of navigation with passengers was
not in dispute andthus was not submitted for decisionby the Arbitrator.
1.3.35 On 22 March 1888, Arbiter Cleveland announced his ward."^ The first
part of the Award recognized the validity of the Treaty of Limits of 1858
and, having established this, the Arbitrator continued deciding on the
points of doubtful interpretationthat were submittedfor his consideration.
1.3.36 The arbitral award definitively resolved the controversy proposed with
respect tothe SanJuan River.This definitive natureof the arbitral decision
is recognized in several Notes and official texts of the Costa Rican
Government dating frorn 1386.'~' The Yearbook of the Costa Rican
Ministry of Foreign Affairs clearly expresses such recognition: "...the
President of the United States has proven himself worthy of the gratitude
of Costa Rica and Nicaragua (...$ for having put an end, with his
illustrious decision, to the sole motive for disagreement that separated
'06WCM,Annex 11, ArticleVI reads: "the decisionof the Arbitsationdeclaresthe validithef
Treaty,the same award shall declare whetherCosta Richasthe righto navigatetheRiver San
Juan with ships owar or revenueboats.Alsothe decisionaforesaidshall, in case of the validity
of the said Convention,decidthe other points of doubtful interpretationfound by either of the
Parties in the Treaand communicatedto the other Party withi30 days formthe exchange of
theratificationsofthis Convention."
107CRM,Vol. 2, Annex 16.
'ORNCM, Annex 29, Note of 31 October, 1886, fromthe Costa Rican Minister of Foreign
Relations, AscensionEsquivel,to the NicaraguanMinister of Foreign Affairs;NCMAnnex 33,
30 July 1887,fromthe CostaRicanDelegationin Washington tothe US Secretaryof State;NCM,
Annex35;23March 1888,frornthe CostaRicanDelegationin Washington totheUSSecretaryof
State,and NCM, Annex 37 Note from the National Palacto the Minister of Foreign Relations,
dated 9August1895.
52 these two ~ozkntries ('~'phasisadded).A similar afirrnation is made in
the 1900Yearbookofthesame Ministry. 110
1.3.37 The Government of Costa Rica has clearly recognized on several
occasions that the Arbitml Award of 1888 is definitive and binding and
that, until now, together with the Treaty of Limits of 1858, forms the
juridical regime applicable to the San JuanRiver, withoutany change in
this juridical situation having takenplace. This manifestation was made,
most recently,in 2000 by the President of Costa Rica, Miguel Angel
Rodriguez, who claimed the following: ".. itwas particularly pleasingto
verify that we fully agree on three fundamental aspects: ..b) that, in
accordance with the Cleveland Award of 1888, which constitutes an
obligatory interpretationof the Caiias-Jereztreaty of Limitsof 1858 ...c)
that since1888 nothinghas occurredto change this legalstatus"'"l.
1.3.38 In orderto comply with the Treaty of Limits of 1858 and the Arbitral
Awardof 1888,based on the Conventionof 24 December1886(Article
1),'1 certain treatieswere concluded between the two countries. The
purpose was to demarcate the boundarybetween the two Republics, in the
lightof the Treatyof Limitsof 1858and the Arbitral Awardof 1888.'13on
'09NCM, Annex 75. Yearbookof the Ministof Foreign Affaiand Worship ofCosta Rica.
1888,pp.3-4.
"O NCM, Annex 76.Yearbookof the Ministry of ForeignAffairsandWorship Costa Rica.
1900,pp.10-11.
'" CRM,Vol. 3,Annex66,Note of29 July2000.
'lNCM,AnnexI 1,
"' Amongthem,the Guerra-CastrT oreatyof 23 December1890, ratifiby Nicaraguaon 11
November,1891,whicharticleIIreads:"TheCommissionersappointedby the Governmentsof
Costa Rica and Nicaraguatocarryout the demarcationof the boundariesbetween the two
Republics, accordingo the provisions of the Treatyof 15 April 1858 and theArbitration
Convention signed at the city of Guatemalaon24 December 1886, willproceed to its
53 27 March 1896the Matus-Pacheco Treaty was signed by means of which
both Parties agreed to establish a Commission of three Engineers, one
appointed by each Party and the third one by the President of the United
States. This third Commissioner appointed by the President was General
E.P. Alexander.
1.3.39 Implementationof the Treaty of Limitsof 1858took place through the five
Awards of Arbitrator Alexander, issued between 1897 and 1900, all in
accordance with Article IX of the Convention of December 1886.
Although theseawards referred to the demarcation of the border agreed to
earlier, Arbitrator Alexander presented conclusionsvery pertinent to the
effects of establishing theapplicable juridical regime. In his first Award,
on 30 September 1847,Arbitrator Alexanderaffirmsthat the interpretation
to be givento the Treaty of Limits of 1858 had to be in accordance with
"the way in which it was mutually understood at the time by its
makers.'" ''
13.40 Considerationof the Treaty of Limits of 1858 and the Arbitral Award of
1888as constituting the applicable juridical regime is also confirmed in
implementationon the Atlanticside, tracing a straight line, beatna point on the coast in
frontof the sea, two hundred meters eastftheseawatlbeingbuiltby the CanalCompany, and
endingat the extremityon the right bankof the neareststream ofSaneJuan RiverFrom this
point, the line shallcontinue along theright bank of thesame streamupto the right bank of the
himas stream and that otheSanJuan kver, until it reachesthe point indicatedin the Treaty of
1858..."NCM, Annex 12. The Matus-Pacheco Conventionof 27 March 1896, ratified by
Nicaragua on 25 September 1896; CRM, VoI 2, Annex 17 and the Matus-Pacheco-Lainfiesta
I Treaty of Peace of 26 April 1898,where the parties agreedto submittheir mutualcomplaintsand
claims tothedecisionof a tribunmade up ofthree Central Americans citiz, ne appointedby
the Greater Republicof Central America,one by the Republicof Costa Rica, and a thirdby the
Republic of Guatemala,the lattertheroleofpeaceful mediator.(Ar111). CM, hex 13.Itis
also importantto underline thatboth Parties declare that no claims shall be submtothe
Arbitrator regardingtheboundary questions thatwere resolvedin the Treaty of 15 April 1858,in
the arbitralawardof President Clevelor inthe SanSalvador Conventionof1896.
l4CRM,Vol2, Annex 18.
54 subsequent treaties. In the Pact of Amity of 21February 1949,'l5in which
the countries agree to the peaceful resolution of conflicts, and in the
Agreement concluded based on Article IV of the Pact of Amity of 21
February 1949,Nicaraguaand Costahca agreed that they
"...shall collaborate..in order to facilitateand expedite
traffic on the PanAmericanHighwayand on the San Juan
River withintheterms of the Treap of 15 April 1858 and
its inteP retation giveu by arbirralion on 22 March
1888.. ."'6(Emphasisadded)
1.3.41 More recent texts demonstrate Costa Rita" recognition of Nicaragua's
rights over the San Juan River and, in particular, the right to adopt
measures applicable to tourism in her territory, particularly on said river.
The Memorandumof Understanding, signedin 5 June 1994, theMinistries
of Tourism of the two countries"in strict compliance with directives from
the Presidents of the Republics of Nicaragua and Costa Rica, in their
meeting of May the twenty ninth, nineteen hundred and ninety four,in San
Juan del Sur, Nicaragua." literally states that Costa Rica must purchase
tourist cards from Nicaragua, The language used isclear and leaves no
doubt regarding "the obligation [Costa Rica has] to [purchase tourist
cards]" l7and to register Costahcan tourist businesses.
1.3.42 Commenting this Memorandum of Understanding, President Pacheco of
Costa Rica stated that it demonstrated that Nicaragua has the sole right to
regulate tourism on thewaters of the San Juan River and that Costa Rica
consequently, does not have the right to free navigation for tourism
purposes under the 1858 treaty. This question is also dealt with later, in
CRM,V012, Annex 23.
117RM,Vol 2, Annex24.
CRM,Vol2, Annex 26,numeral3,lettb.
55 2002, inthe Declaration of Alajuela signed by the Minister of Foreign
Affairsof both countries.'''
1.3.43 In 1998, a dispute was artificially brought about whenCostaRica sought
to navigate the San Juan River with military weapons, without the
respective authorization or permission from Nicaraguan authorities. This
motivated Nicaragua to terminate the concession of operational permits
that she had been granting to Costa Rica within a framework of
cooperation and neighborliness during the periodfrom 1995to 1998,as an
act of "border courtesy"and never as an act that could be construed as a
juridical relationship. With a renewed spirit of cooperation with Costa
Rica, Nicaragua initiated almost immediately a process of conversations
and exchanges of notes that, ultimately, did not result in the
reestablishment of the modus operand that formerly existed, since
Nicaragua maintainedher willingness to cooperate based, as had been the
case at the time, on permits requested from thesovereign nation foreach
case and on a temporary basis. CostaRica finally made clear that it sought
the right of armed navigation -although temporary and accordingto each
case- subject to a simple notification to be given to the Nicaraguan
Authorities. This did not meet the requirements of the necessary request
that Nicaragua was entitled to as sovereign.
1.3.44 The initiation of incursions of vessels that transported public forces of
Costa Rica, withoutpermission, in Nicaraguan territoryand particularly on
the waters of the SanJuan River, led to Nicaragua's adoption of measures
to regulate the situation,In thiway, on,14July 1998,the Government of
Nicaragua, in full exercise of its sovereignty over the San Juan River,
I" CCRMV , o2,Annex 24.
56 prohibited the navigation of Costa Rican vessels that transportedmembers
of the public forces carrying arms. This alleged "right" to navigate the
river with arms, as clearly stated by the Minister of Foreign Relations of
Nicaragua in a Note addressed to the Minister of Foreign Relations of
Costa Rica on 23 April 2002, is not one of "...the rights of navigation
other than those enunciated in the Jerez-Cafias Treaty and the Cleveland
Award, the provisions of which we must strictlyadhere to."' l9
1.3.45 Faced with the persistence of theexisting differences,due to CostaRica's
pretensions over the SanJuan River, the Ministers of Foreign Relationsof
the two countries met in Alajuela and adopted a Declaration on 26
September 2002.'~' This Declaration granted reciprocal concessions that
once more demonstrate the sight of each of the parties to impose
administrative and control measuresin their respective territories, with the
San Juan Riverand the totality of its waters being Nicaraguan territory.
1.3.46 The 1858 Treaty of Limits and the 1888 Cleveland Arbitral Award make
up the Applicable LegalRegime on theSan Juan de Nicaragua River. This
condition has been repeatedly recognizedby both parties since 1888.This
regime clearly sets the limits between the two countries. Theselimits were
demarcated precisely by the Alexander Arbittai decisions rendered
between 1897 and 1900. These awards were designed to be a
cartographical exercise but the Arbitrator, nevertheless had to determine
the Applicable Law in order to set the border marking stones in the
'ICRM, Vol. 3,Annex 75. Note fromtheMinister of Foreign Affairsof Nicaragua(MREIDM-
W48 1/04M2),dated23 April2002 andaddressedto theMinisterof ForeignAfEairsandWorship
Affairsof Costaica.
12'CRM,Vol2, Annex 29.
57 appropriate places. Alexander's instruments reiterate Nicaragua's
sovereignty overthe river and confirm therestrictednature of Costa Rica's
right of free navigation, a) physically, over a part of the river and
juridically,covering only the transportation of things, wares, goods or
more specifically "articles oftrade".
1.3.47 Thepreparatory work of this Treaty of Limits cannot be appreciated with
the usual drafts prepared and discussed during the phase of negotiation of
the Treaty, which was only scantily recorded, but by all treaties and
contracts negotiated and concluded by the parties before 1 858. Careful
reading of these texts can explain the nature and scope of the rights and
obligations of the parties in regards to the uses of the river and provide a
context for the text othe 1858 Treaty of Limits. Special attention is called
to the severalways in which thephrase (objetos de comercio) "articles of
trade" wasused inthese texts to definethe extent of theright of navigation
of CostaRica.
1.3.48 The analysis of relevant documents as presented above, leads to the
inescapable conclusion that Nicaragua always exercised sovereignty over
the San Juan de Nicaragua River, including the policingof its waters and
the regulation sf all navigation on the riveand, further more, enjoyed the
exclusive and historical right for the transport of passengers. The Costa
Rican right of Free Navigation granted by those documents that make up
the applicable law, is not absolute, it is restricted geographically and
limited to the transportation of "wares", or "articlesof trade" as definedby
the Spanish term objelosde cornercio.1.3.49 The Parties have repeatedlyrecognizedthat all territorialdifferences
between them,and in particularthoserelatedto the SanJuanRiver,were
definitivelysettledby the Treatyof Limits and theClevelandArbitral
Award that validated and interpretedit and that these instruments are
bindingand definitiveand admit norecourse. CHAPTER 2
NICARAGUA'SSOVEREIGNTY OVER THE SAN JUAN DE
NICARAGUARIVER
Section 2.1
Character, Object and Purposeof the 1858Treaty
The original title otheTreaty signed on 15 April 1858 is 'Tratado de
Limites entse Costa Rica y Nicaragua'. The instrument is frequently
referred to in English as the 'Treaty of Limits', as, for exampin,the
Cleveland Award of 1888. The object and purpose of the Treatywas to
settle a long-standing dispute concerning title to territory. This aspectof
the Treaty is evidenced by the text of the Treaty itself, by its negotiating
history,by the prior treaties relating tothe subject-matter,by the
subsequenttreaties,andby thetext of the ClevelandAward of1888.
2.1.2 The dispute between the parties relates to the nature of the rights of
navigation appertaining to Costa fica within the waters of the River San
Juan, which waters are subjectto the sovereignty of Nicaragua. It follows
that the provisionsconcerning navigationappear in the particular context
of a territorial settlemeand not in the different contexof a Treaty
creating a regime for an international river, such as the Rhine or the
Danube. Thus, for example, the Treaty of 1858 does not create rights for
thirdparties.
2.1.3 Costa Rica has not only recognised Nicaragua'ssovereignty over the river
in numerousnotes and communiquks, but has explicitly recognisedsince
the XIX Centurythe national character of the SanJuan River,not only vis a vis Nicaragua but also to the Executive Committee (Dieta) of the Major
Republic of Central America formed by El Salvador, Honduras and
Nicaragua. At that time Costa Rica published a decree which was harmful
to Nicaragua'ssovereigntyand prompted the reaction of the Executive
Committee (Dieta)of the Major republic of Central Americawho wrote a
note toCosta Ricadated 27 July 1897,pointing outthat
"When the State of Nicaragua became aware of it, it
caused the overall impression that the abovementioned
decree threatens the sovereignty of the Nation that has
exclusive dominion and sovereign jurisdiction over the
waters ofthe San JuanRiver, and Costa Rica only has the
right to free navigation for purposesof commerce,from
the mouth in the Atlantic up to three English milesbefore
reaching Castillo Viejo; however, it is in no way
authorized to transferitto other nations, as inferred ithe
broad sense of thesaid decree, since it does not limit ito
its national ships.Thus, the Government of the State of
Nicaragua, in fulfillment of its duty to ensure their
sovereign rights are upheld unharmed, has instructed the
Diet, in which I am honoured to partake, to present the
foilowingprotest to YourExcellency'sGovement.. .,7121
2.1.4 Costa Rica's reply couldnot have been more candid, In a note of 31 July
1897, Ricardo Pacheco, Minister of Foreign Affairs and Worship answers
Mr.E Mendoza in thefollowingterms:
"It takes no effort whatsoever to understand that the
licence to introduce merchandise into the valleys that the
decreerefers to has tobesubordinate ro the condition.set
for the navigationofthe San Juan River,andthatthisis an
interiorriver,not open by its sovereigntoforeign trafic.
It should be understood that such permit was referred only
to Costa Ricanships, which under the Treaty of58 and the
'*?CRM,VO~ .,Annex 37.
62 Arbitral Award of President Cleveland, have a right to do
it, which cannot in lack of a national authocisation, be
utilised to embark andf3%122bark products throughports
not open to seatrade.... (emphasisadded).
2.1.5 The Memorial tends to obscure the legal and historical context and to
conduct the argument essentially on the assumption that the Treaty of
1858consists of a single provision related to the rights of navigation of
Costa Rica. In fact Article VI, the relevant provision, deals with the legal
status of the waters of the San Juan River as such, and the draftingmakes
clear that the provision formspart of the overall territorialettlement. As
the text stipulates:
"The Republicof Nicaragua shall have exclusive dominion
and supreme control of the waters of the river San Juan
from its outlet from the lake until it empties into the
Atlantic; but the Republic of Costa Rica shall have
perpetual rights, in the said waters; of free navigation from
the river" south to three English miles below Castillo
Viejo for the purposes of commerce, [objetosde comercio]
whether with Nicaragua or the interior of Costa Rica, by
wayof the riversSanCarlosor Sarapiquior any other route
proceeding from the tract on the shores of San Juan that
may be established as belonging to this Republic. The
vesselsof both countries mayindiscriminately approachthe
shores (atracar) of the river where the navigation is
common to both, without the collection of any class of
,9123
imposts unless so establishedby thetwo Governments ...
2.1.6 In the conclusions to Chapter 4 of the Costa Rican Memorial the primary
conclusion is as follows:
IZNCM, Annex 38.
'ICRM, Vol.2, Annex7, pp.54-60. "(1) Costa Rica hasa conventional perpetualright offree
navigationover the portion of the San Juanwhere it is a
riparian State, and is entitled to exercise this right without
restrictionsor interferen~e.""~
2.1.7 Similar expressions are to be found in the diplomatic correspondence, as,
forexample,in the Costa RicanNote dated 19August 1982:
"I deplore that the Govemment of Nicaragua insists on
denying what, by virtue of a standing Treaty, belongs to
Costa Rica, that is, the perpetual, perpetual, and inviolable
right that itsvessels navigate, without any condition,on the
San Juan River. Therefore, the Government ofCosta Rica
cannot, and does not accept, the unilateral, unlawfand
capriciousinterpretationthat the Governmentof Nicaragua
gives the Caiias-Jerez Treaty of 1858, ratifiedby the
Cleveland Award in 1888. Much less, it cannot and does
not accept, the thesis of the Government of Nicaragua that
this country has the right 'to establish regulations over said
river'in detriment of the right of Costa Rica, nor the thesis
that Nicaragua has 'the obligation' to 'exercise acts of
sovereignty and jurisdiction over that part of its national
territory and over the vessels that navigate on it', in
detriment of Costa Rica's right. This interpretatwhich
the Government of Costa Rica rejects, contradicts and
limits what by virtue of the Treaty does not admit
contradiction orlimitation25"
B.THEPERTINEN PRINCIPLES OF TREAT NTERPRETATION R:EFERENC TO THE
OBJECT AND PURPOSE
2.1.8 The interpretation and application of the provisions of Article VI of the
instrument entitled 'Treaty of Limit between Costa hca and Nicaragua'
must be in accordance with its objand purpose. The modem law is set
forthinArticle 31 of the Vienna Convention on the Law of Treaties. As
CRM,para. 4.129.
12CRh4,Vol.3,Annex45.
64 the Court will readily recall, the general rule of interprsetforth in
~ Article31 includes aitsbasicprovision,in paragraph 1:
"A Treaty shallbe interpreted in goofaithin accordance
with the ordinary meaning to be given ttheterms of the
Treaty in their context and in the light of its obandt
purpose."
2.1.9 The object and purposeof the Treaty of 1858was to effect a territorial
settlement and was consequently related to the resolution of questions of
sovereignty. The evidence of this will be reviewed in due course, The
~ mainfocuswas thusthedetermination of boundaries and not the creation
of a regime of fluvial navigationtheStatesof theregion.
I 2.1.10 The principle of reference to the object and purpose is affirmed in all the
majorauthorities, includinthefollowing:
(i) McNair, TheLaw ofTreaties,1961,pp.380-81.
(ii) Rousseau,Droit InternationalPublic, Vol. 1,970, pp.272-73, para.
241.
(iiiJenningsand Watts (editors), Oppenhei'sInternational Law,Vol, I,
Peace,gthed., 1992,pp.1271-73.
(iv) PodestaCosta and Ruda, Derecho International Publico, Vol. 2,
1985, pp.103-5.
(v) PastorRidrueje, Curso de Derecho PratevnacioraaPl ublicu,znd ed.,
1987,pp. 120-21.
2.1.11 This Court has referred tthe object and purpose ofa treaty on several
occasions, including thNicaragua Case, I.C.J. Reports,986,page 136
paragraph 271; and the CaseConcerning Border and Transborder Armed
Actions, ibid,,1988, page 89, paragraph46; Case Concerning the
Gabcikovo - NagymarosProject, ibid., 1997, page 76 paragraphs133-47;
LaGrandCase,ibid.,pages.50 1-4paragraphs 99-104.2.1.12 Itmust be noted thatwhilst CostaRica ratified thVienn Caonvention on
22 November 1996,Nicaragua has not ratified the Convention. In any
event it is generally accepted that the provisions of Article 31 of the
Vienna Convention represent principlesof general international law.
2.1.13 There can be no doubt that the principle of inter-temporal law applies to
the interpretatiooftreaties: see the Judgment of this Court in the Rights
of Unite SdtatesNationalsinMorocco, I.C.J.Reports, 1952,p.176 at page
189;and Jennings and Watts, op cit. pages 1281-82. In this cantext there
is a presumption that the general principles of Treaty interpretation,
familiar to the practitioners of today, also formed part of the law
applicable in 1858. Whilst the principle of inter-temporal law may be
applied with some flexibility in certain contexts, this approach is clearly
notappropriate in the case ofboundary treaties.
2.1.14 The significance of the object and purpose of a Treaty as an element inthe
negotiation processhas an appreciable seniority, whichis reflectin the
legal sources. Thus Professor Rousseau described the position in his
treatise (in 1970):
"La doctrine s'est gkneralement borne a recommander la
'prise en considhation des buts du trait&' en tant que
moyen lkgitime d'interpritation(risolution preciteede
I'Institut de droit international adoptee le 19 a1956),
formule qui se retrouve dans plusieurs sentences arbitrales
(sentencedu surarbitre Grayen date du 8 avril I858 dans
l'affaire des p&cheriesriserve estreles Etats-Unis etla
Grande-Bretagne,interprktationde 1'Article" ddutraite du
5juin 1854,R.A.I.,tome 11,p.447;sentence arbitrale Unden
du 4 novembre 1931 entre la Bulgarie et laGrtce dans
l'affaire deforits du Rhodope, interprttation de ]'Article
66 181, paragraphe 3 du trait6 de Neuilly, R.S.A., vol. 111,
p.1403; sentence arbitrale Rene Cassin du 10 juin 1955,
entre la Grande-Bretagne et la Grkce dans l'affaire des
cargaisorzsdiroutkes, inferprktationde 1'accord financier
anglo-hellenique du 11fkvrier 1942, R.S.A., vol. XII, p.
70).rri26
2.1.15 Thus the precedents cited by Rousseau go back as far as the Arbitral
Awardof 1858 in the case of the Reserved Fisheries between the United
States andGreat Britain, de laPradelle andPolitis, Recueildes Arbitrages
Iratemationam, 11, p. 440, atpage 447.
2.1.16 The significance of the object lying behind the express provisions of the
Treaty is given emphasis in leading Latin-American authorities published
in the same era as the Treaty of 1858. Thus, in his work published in
1868,the Argentineanjurist CarlosCalvo stated the positionas follows:
"Passing, then, to expound the particular rules, it is
expressed in these terms, by enumerating the most
important:
First. In all obscure passages, the object ought to be to
discover the thoughts of the author, from which it results
that on occasion we should take the expressions in their
general sense and others in their particularsenseaccording
to thecases."'27
2.1.17 The classical workby Andres Bello expresses an identical opinion in the
fourthedition publishedin Paris in 1882:
"Passing to the particular rules that are deduced fromthese
axioms, I merely give a bare catalogue of them, and
'2DroidI~tternationl ublic,Vol. I,p.272,para241.
12Derecho Internationaledricoy Prdctico,SecondVolumeParis,1868,para8 18.
67 referringwith respect to their illustrations, to 1.11,l,
Chapter 17.
1. In all obscure passages, the object ought to be to
discover the thoughts of the authfrom which it results
thatwe should take some expressions in their particular
sense and others in a general sense, according to the
cases.91128
2.1.8 The first edition of Bello was published in 1832. The fourth edition,
quotedabove,was also preparedbythe author.
6. THEPERTINEN TRINCIPLESOF TREATY INTERPRETAT THOED:UTY TO
CONSTRU E TREATY AS AWHOLE
2.1.19 The standard authorities formulatea principle which is a logical corollary
ofthe referencetothe object and purpose of a treaty. The principle is
statein theformof a duty to construe a treatyas a whole and not to focus
attention upon anyof its provisions in isolation. This principle is statedin
McNair, Law of Treaties,1961,page 382. As the editorsof Oppenheim
point out, the principle requiring referethe context is another form
of the duty to construe a treatyas a whole: Jennings and Watts,
Oppenhei 'sInternationaLaw, Volume 1, gt\dition, page 1273. The
significance of the context is also ernphasisedby Rousseau, Droit
Itzrernatio~Plublic, Volume I,pages 284-85, paragraph 248.
2.1.29 SirGerald Fitzmauriceformulates what is essentially thesame principle as
'theprinciple of integration', namely,that 'treatiebeainterpreted as
a whole,and with reference to their declaredor apparentobjects, purposes,
12R
Principiode DerechInternucionulEdition1882pp.135-6.Seealso thesecondedir~on
publishedinValparaiso,1p. 14.
68 and principles: see Fitzmaurice, The Law and Pmcedtrre of the
International Court of Justice, 1986, Volume I, page 50 (and see also
pages 59-61).
2.1.21 Theevidence of the object and purposeof the Treatyof 1858 will nowbe
presented as hlly aspossible, and within convenient categories.
I. TheNegotiating History
2.1.22 The negotiating historyaffirms that the issues between CostaRica and
Nicaragua were related to disputed territory and boundaries. The
negotiating history is describedin some detailin the Rives Report dated 2
March 188~'~~ during the Arbitration procedureof President Cleveland.
Thereport isas follows:
"I now proceed to state the history of the negotiations
which resulted in the Treaty in question, and of the
executive and legislativeactswhich are reliedon by Costa
Ricaas constitutinga sufficientratification.
The long andbitter strugglein which Nicaraguaand other
Central AmericanStates had been involved, and of which
thepart played by WaIkerand the filibusterwas themost
notolious incident, came to an end in 1857. The Republic
of Costa Rica had taken part inthat struggle, and her case
PresidentClevelandempoweredMr.GeorgeL. Rives,Assistant Secretyf Stattoexamine
the argumentsandevidencesubmittedby thtwo sidesandto prepareareportto the President
uponwhicha decisionin thecase mightbe based.The instrumbytwhichPresidentCleveland
delegatedthisauthorito GeorgeL. Rivesis reproducein J.B.Moore,History anDigest of
hternational Arbitratitowhich theUnitedStates has been a Party, Vol. 2, p.note52,
U.S.GovernmenP t rintingOffice,Washingt, C.1898.Mr.Rivescommunicated acopy of the
President'srdeto CostaRicaandNicaraguaonthedayit was made. For . el1888,partI,pp.
455-456.states as a fact that at the closof the contest the Costa
Rican troops held militarypositions on both sides of the
San Juan. The argument of Nicaragua seems to imply that
such possession was not taken until aRer the close of the
war; but thefact itself is not in dispute. It was regarded by
Nicaragua at the time, as constituting a casus belli; and
Costa Rica having failed to withdraw her troops, war was
declared by Nicaragua on the 25th November, 1857,-
although negotiations for a settlement of the difficulty still
continued, but withoutsuccess.
In this posture of affairs the Republic of San Salvador
offered mediation through its Minister Colonel Don Pedro
Rbmulo Negrete. Owing principally, as it would seem, to
Colonel Negrete's earnest efforts, the opposing
Governments appointed Ministers Plenipotentiary, who met
with the Salvadorian Minister at San Josk de Costa Rica,
and there concludedthe Treaty of Limits,- the validity of
which is nowunderexamination.
By that instrument, the boundary line is made to begin at
Punta de Castilla, at the mouth of the San Juan River;
thence it follows the right or Southern bank of that stream
to a point 3 miles below the Castillo Viejo; thence it runs
along the circumference of a circle drawn round the
outworks of the Castle as a center, with a radius of three
miles, to a point on the Western side of the Castledistant
two miles from the River; thence parallel to the San Juan
and the Lake, at distanceof 2 miles therefrom to the Sapoi
bver; and thence in a straight line to the centof Salinas
Bay onthePacificOcean. TheTreaty furtherprovidesthat
surveysshallbe madeto locate the boundary; that the Bay
of SaltJuandel Node and Salinas Bayshall be common to
both Republics;and that Nicaraguashallhave, exclusively,
dominion and supreme control of the waters of the San
Juan - Costa Rica having the right of free navigationfor
the purposes of commerce in that part of the fiver on
which she is bounded. It was further agreed that in the
event of war betweenCosta Rica and Nicaragua, no act of
hostility wasto be practiced in the Port of the Riverof San
Juan, or on the Lake of Nicaragua;and the observance of i!,,
this article of the Treatywas guaranteed by theRepublic of
San Salvador.
It is admitted by the parties to the present arbitration that
the Treaty was duly ratified by Costa Rica on the 16lh
April, 1858; and that it was not ratified at all by San
Salvador. It is further established that there was some
ratification by representatives of Nicaragua- but whether
or not such ratificationwas sufficient ione of the points
now in controversy, and it is therefore necessary to
examine fully the powers and the proceedings of the
Nicaraguanauthorities.
The Republic of Nicaragua, as appears fromthe evidence,
was a Constitutional Governmentof limitedpowers, which
were defined by a written Constitution. Nicaragua, as one
of the Statesofthe Central American Republic, adoptedher
first Constitution on the gth April, 1826. Upon the:
dissolution ofthe Federal Republicshe assumed the rank of
an independent nation; and in 1838 adopted a new
Constitution, whichher representativesnow contend was in
full force and vigor at the time of the execution of the
Treaty of Limits, The full text of the Nicaraguan
Constitution of 1838 is not contained in the arguments
which have been laid before the Arbitrator; but it
sufficiently appears that power was vested in an elective
President and a Congress. It also appears that by Article2
(cited in full below), the boundaries of the State were
defined; and that by Article 194, quoted intheargument of
Nicaragua, a complicated method of amendment was
provided, of which the only featurenow necessary to notice
is thatno proposed amendment shalltakeeffect until it has
been approved by two successive Legislatures.
In I857 the necessity for a complete revision of the
Constitution of 1838 seems to have been generally
recognized. The long and exhausting conflicts which had
been waged from 1854 to 1857, and the existence, during
the greater part ofthat time, of two hostile governments,
eachclaiming to exercise constitutionaland supreme power
throughout the country, had demonstrated, to the
satisfactionof the inhabitants,the importanceof changes inthe organic law. Accordinglya Constituent Assembly,with
ample powers, was duly elected. The dueelection, and the
full constituent powersofthis body, are facts not disputed
in the argumentsnow submitted on behalfofNicaragua.
In November, 1857, the Constituent Assembly met, and
addressed itself at once to the task of framing a new
Constitution for Nicaragua, aswell as of legislatingupon
the ordinary affairsof the nation.
On the 181hof January, 1858,the previous negotiation with
Costa Rica having failed, the Assembly ordered new
Commissioners to be appointed to negotiate treaties of
peace, limits, friendship, and alliance between Nicaragua
and Costa Rica.
On the 51h February, 1858, a further and supplemental
decree on the same subject, was adopted, which is as
follows:
The Constituent Assemblyof the Republicof Nicaragua, in
use of the legislative faculties with which it is invested,
decrees:
Article 1. For the purpose that the Executive may comply
with the decree of January 18instant, the said Executive is
hereby amply authorized to act in the settlement of the
difficulties with Costa Rica in such manneras imay deem
best for the interest of both countries, and for the
independence of Central America, without the necessity of
ratificatioby thelegislativepower.
Article 2.Such treatieof limits as it may adjust shalbe
final, ifadjusted in accordance with the bases which
separately will be given to it; but, if not, they shall be
subject to the ratificationof the Assembly.
What were the separate bases of negotiation given to the
Nicaraguan Executive does not appear from any of the
documents submitted to the Arbitrator. But it is not
distinctly asserted by the representatives of Nicaragua that
such instructionswere disregarded in the negotiationof the
72 4 .
Treaty.- the arguments reit& on to prove its invalidity
resting uponentirely different grounds,whichwill be stated
hereafter. h
On the 15" April,1858, theTreaty of Limits was signed by
the Plenipotentiaries of Costa Rica, Nicaragua and San
Salvador; and on the 26'h April, 1858, ratifications were
personally exchanged by the Presidents of Costa Rica and
Nicaragua, who met for the purpose on Nicaraguan
territoryat the City of Rivas. The Treathad notthen been
passed upon by the Assembly, the decree of ratification
being bythePresident alone. It is as follows:
TOMAS MARTINEZ, the President of the Republic of
Nicaragua:
Whereas General MBximoJerez, Envoy Extraordinary and
Minister Plenipotentiary of Nicaragua to the Republic of
Costa Rica, has adjusted, agreed upon and signed, on the
15" instant, a Treatyof Limits, fully in accordance with the
bases which, for that purpose, were transmitted to him by
way of instructions; finding that saidTreaty is conducive to
the peace and prosperity of the two countries, and
reciprocallyusefulto both of them, and that it facilitabys,
removing all obstacles that might prevent it, the mutual
allianceof both countries, and their unity of action against
all attemptsof foreign conquest; considering that the
Executive has been duly and completely authorized by
legislative decree of February26thultimo to do everything
conducive to secure the safety and independence of the
Republic; and by virtue, furthermore,of the reservation of
faculties spoken of in the Executive decree of the 17'~
instant:
Doeshereby ratify eachand all of thearticles of the Treaty
of Limits, made and concluded by Don JoskMaria Cafias,
Minister Plenipotentiaryof the Government of Costa Rica,
and Don Maxirno Jerez, Minister Plenipotentiary of the
5u reme GovernmentofNicaragua, signedby them on the
P;
15' instant and ratified by the Costa RicanGovernment on
the 16'~.And the additionalact of the samedate is likewise
ratified. On the 2gih May, 1858, thirty-two days after the
ratification, and forty-three days after the signature of the
Treaty of Limits, the following decree was passed by the
Constituent Assembly:
The Constituent Assemblyof the Republicof Nicaragua, in
useof thelegislative powers vestedin it, decrees:
Sole Article.The Treaty of Limits concluded at San Jose
on the 15'~ofApril, instant, between GeneralDon MBximo
Jerez, Minister Plenipotentiary from this Republic, and
General Don Jose Maria Caiias, Minister Plenipotentiary
from the Republic:of Costa Rica, with the intervention of
Colonel Don Pedro Romulo Negrete, Minister
PlenipotentiaryfromSalvador,is hereby approved."
On the lgth August, 1858, the Constituent Assembly
adopted the new Constitution,of which it is only needful to
cite thfirstArticlevis:
The Republic of Nicaragua is the same which was, in
ancient times, called the Province of Nicaragua, and, after
the independence, State of Nicaragua. Its territory is
bounded on the East and Northeast by the Sea of the
Antilles;on the North and Northwest by the State of
Honduras;on the West and South by the Pacific Ocean;and
on the Southeast bythe Republic of Costa Ric$130he laws
on special limits formpart of the Constitution.
2-1.23 This sourcehasbeen presented in full and withoutsummary. It constitutes
a significant and reliable account ofthe negotiating history, preparedby an
officialof a third State in the context of a major arbitration. As appears
from the Rives Report, the background included a war declared by
Nicaragua on 25 November 1857.
NCM,Annex 70,RivesReportatpp.462-4dated2 March 1888.
74 2. TheReflectionofthe ~is$le Relalinglo Nicoyainthe Diplornutic
History
I
2.1.24 Bothduringthe existence of the Federal Republic of Central America,and
following its dissolution in 1838, the question of boundaries acquired
I
greater importance. The position is described as follows in the Rives
I
Report:
"But with the establishment of the Federal Republic, and
still more,with the dissuluti~n,the questions of boundary
beganto assumeimportance.
The Federal Constitution seems to have provided by its
Article VII for the demarcation of each State; but
neverthelessnothing was done towards the establishmentof
theline betweenCosta Rica and Nicaragua.
In 1838Costa Rica seems to have urged upon Nicaragua -
then assuming the rank of an independent State upon her
withdrawal fromthe Federation - a desire for a recognition
of the annexationof Nicoya. In 1846, 1848and 1852other
fruitless negotiations were undertaken with a view to
settlingthe boundary; and in 1858, when the Treaty of
Limits was signed, the question, in one form or another,
had been before the two Governments for at least twenty
years.
That the documentary evidence was slight and
unsatisfactory, has been already shown;and that Costa Rica
hadfor nearlythe same periodof twenty years laidclaim to
more territory than sheobtained under the Treaty of Limits,
fullyappears from her decree of 'Basis and Guarantiesyof
the 8IhMarch, 1841- which asserts as the boundaries of
CostaRicathe line of the River La Flor, the shore of Lake
Nicaragua, and the RiverSan ~uan,"'~'
- -
13NCM, Annex 70.
752.1.25 The conclusion of the Treaty of 1858 was prefigured by several treaties
concerning dispute settlement which remained unratified. One such
instrumentwasthe Preliminary Treaty(Marcoleta - Molina), signed on 28
January 1854. The first two Articles provideasfollows:
"Article 1
The Governmentsof the Republics of Nicaragua and Costa
Rica mutually commit themselvesto puttingan end as soon
as possible to the differences that unfortunately havearisen
and still exist between said Republics, regarding
sovereignty of certain territories and certain inland
navigation rights, either through a direct compromise
between the two interested parties, without third-party
intervention, or by submitting themselves to the decision
madeby a friendlyPower.
Article 2
In case the currently pending negotiations In San Jost,
between the Government of Costa Rica and the Nicaraguan
Plenipotentiary, do not unfortunately have the effect
intended by both parties, it is hereby provided that
immediately after exchanging ratifications of this
Convention, the Republics of Nicaragua and Costa Rica
shall submit the decision on each and every pending issue
between the two Governments, with respect to borders,
inland navigation, and sovereignty of whichever disputed
territories, rivers, anlakes, without any reserve,to the
arbitration award of His Majestythe French Emperor,or of
any other Governmentwhich any of the contractingparties
deem it convenient to desi nate,6,on exchanging
ratificationsof this Convention.
2.1.26 Another instrument is the Juarez - CaiiasTreaty signed on 6 July 1857.
This remained unratified but the content indicates the general intentionto
13*Marcolet- Molina PreliminaTreaty,28January1854;NCM,Annex 4.
76 establish a basis for peaceful &idstable relations. The preamble and the
firsttwo provisions ofthe Englishtext read as follows:
"Gregorio Juhrez and Jost Maria Caiias, special
Commissioners; the first for the Supreme Govemment of
Nicaragua, and the second for Costa Rica, to enter into a
definite border treaty which divides both Republics and
ends the disputes that until now have stalled the good
understanding that should reign between them, for their
mutual safety and exaltation; having exchanged our
respective powers, which we found to be in good and due
form,we haveagreed on the following:
First: The Governmentof Nicaragua, as a sign of gratitude
for the Government of Costa Rica, for its good offices on
behalfof the Republic, forthe solid determination pnd great
sacrifices made for the cause of national independence,
waives, takes and puts away every right on the District of
Guanacaste, which is nowcalled the Province of Moracia
of the Republic of Costa Rica, tobe understood, held, and
acknowledged, fromnowand forever, as an integralpart of
said RepubIic, under the sovereign jurisdiction of said
Government.
Second:As that Provinceof Moracia is locatedbetween the
San Juan del Norte River and the South Sea, both parties
agree that the border'should be an imaginary line, drawn
from a point in the middle of the Golfo de Salinas de
Bolafios in the South Sea, up to a point below Castillo
Viejo, that will be marked two English miles from the
outside fortifications of said castle, downstream of the
river, up totheaforementioned point; and whilst this one is
made, Raudal del Mico, across the river known as Bartola,
will be taken as a natural border marker on that side; and
following the margin and the shore of said river, the same
dividing line will follow down, until it reaches Punta de
Castilla.3133
13Juarez- CaiiasTreaty,6Jul1857,CRM, Vol.2,Annex 5.
772.1.27 This agreement would have constituted a definitive boundary, haitbeen
ratified. The first provision makesa clear renunciation of any claimto the
District of Guanacaste. The agreementclearlyrecognizesthatthe River
San Juan is entirelywithinNicaragua.
3. TheConclusionofthe Treaty of15 April 1858
2.1.28 In the wake of the previous failures to adopt an agreed settlement in
January 1858 the National Assembly of Nicaragua ordered new
commissioners to be appointed to negotiate treaties of peace, limits,
friendship and alliance, between Costa Rica and Nicaragua. A further
Decree on the same subject was adopted on 5 February 1858. The new
Treaty was signed on 15 April 1858. The text will now be reviewedin
orderto elucidateits objecand purpose.
(a) The Title
2.1.29 Theoriginaltitle of the Treaty of 1858is 'Tratado de Limites entre Costa
Rica y Nicaragua'. The title thus speaks foritself.
(ZI) Preamble
2.1.30 The principle of integration and the reference to the text of a Treaty as a
whole necessarilyinvolves taking account of the preamble. In the Beagle
ChannelArbitration the Court observed:
"Although Preambles to treaties do not usually - nor are
they intended to - contain provisions or dispositions of
substance - (in short they are nooperativeclauses) - itis nevertheless generally rtcctbt~d that they may be relevant
and important as guides to the manner in which the Treaty
shouldbe interpreted, and inorder, as it were, to 'situate' it
in respect of its object and purpose. As the Vienna
Conventionsays (Article 31,paragraph 2),
'Thecontext for the purpose of the interpretation of a
Treaty shall comprise, in addition to its text, including
'1134
itspreambleandannexes .... (emphasisadded)
2,1.31 Thepreambleto the Treaty of 1858indicates very clearly the character of
the agreement as dealing with the peaceful resolution of questions
concerning boundaries. The instructions to the negotiators were 'to
concludea Treaty on the boundariesof the two Republics ..'
(cj TheTextofthe Treaty
2.1.32 The first seven Articles of the Treaty, that is to say, its main substance,
relate either to the fixing of the boundaryline, or to the question of the
procedure of future demarcation, or to the legal status of particular
locations. ArticleIV concerns the legal status of the Bay of San Juan del
Norte and Punta Castilla.
2.1.33 In this context Article VI forms part of the overall territorial settlement
and resolution of the differences which resulted in a war in 1857. The
primary provision concerns 'the exclusive dominion and sovereignty'
accordedto Nicaraguaoverthe waters of the RiverSan Juan.
internationLaw Reports,Vol52,p.93atp.132,para.19.
792.1.34 Theprovisions ofArticle VII are also significant:
"Itis agreed that the territorial divisionmade by this treaty
shall inwise be understood as counteracting obligations
subscribed to, whether under political treaties or under
contracts for a canal (cunulizueion)or transit made on the
part of Nicaragua before this present agreement, it shall
rather be understood that Costa Rica assumes those
obligations in the tract bar&) belonging to her territory
without in any way interfering with the eminent domain
and sovereign rightsheld by herover the same."135
2.1.35 This provision describes the objjectand purpose of the Treaty as a whole
very well in its referenceto the 'territorial divisionmadeby this Trea.'..
(6) DiplomaticCorrespondenceSubsequentto theTreap of J858
2.1.36 The diplomatic correspondence reflects the general characterof the Treaty
of 1858 as a Treaty of peace and boundaries. Thus, on 6 May 1858, the
Legation of El Salvador, which had acted as mediator, wrote to the
Governmentsof NicaraguaandCosta Rica in the following terms:
"Having been signed at San Jose, Costa Rica, the important
treatyof peace and limits between this and that Republic,
which was concluded in the city of Rivason April ~6'~last,
according to the act of exchange of that date, the
undersigned Plenipotentiaryof El Salvadorhas the pleasure
to inform you that he has just arrived to this Court to
cordially greet the Government of Nicaragua, and to
congratulateit+forthe conclusio~r of theserious questions
that existed with Costa Rica and to announce the
withdrawal of this Legation tothecapital of El Salvador to
inform its Government ofthe successful resultachievedby
135
CRM, Vol.2, Annex7,pp.54-60,
80 the undersigned Minister ofthat Republic inthose of
Nicaragua and Costa Rica. In saying farewell, I am very
pleased to state in this note that my heart vehemently
wishes that the present socialwellbeing of the Nicaraguans,
the internaland external policy of its Government, and its
well-founded hopes for improvement in all senses shall
consolidrr136chday more and more and shallsoon become
areality. (Italicsin the original, underline added)
2,1.37 The generosity of the territorial arrangements exhibited by Nicaragua
attracted comment from third States. Mirabeau B. Lamar, United States
Resident Ministerto the Governmentsof Costa Rica andNicaragua, wrote
tothe Secretaryof Stateon 28May 1858, commentingon the Treaty of 15
April 1858:
"You will find in the Gazette a Treaty of Limits between
the two Republics, by which it appears that Nicaragua has
conceded all that CostaRica demanded and probably more
than sheeverexpectedto obtain."13?
2.1.38 By the year 1870the Nicaraguan Government startedto raise the question
of the validity of the 1858 Treaty, and asserted that its provisionswere
incompatible with the Constitution of Nicaragua. The relevant
correspondence includesthe following items:
1) Nicaragua to Costa Rica, 1 February 1~71'~~. In this Note
Nicaragua complains ofthe lossof Guanacaste as a consequenceof
theTreatyof 1858.
ii] Costa Rica to Nicaragua, 22 July 1872.'~~ This substantial
document sets fortharguments relatingto the boundaries ofNicoya
136~~~, Annex24.
NCM,Annex25.SeealsoManning,Doc. 1436,pp.676-8
j3'CRM,Vol. 3,Annex 30.
81 (Guanacaste),and the claim of Costa Rica to title.And it is
pointed out that the Treatyf 1858 confirmed thatNicoya was an
integralpart of Costa Rica.
iii) Message of the State Department of Nicaraguato the Senateof
Nicaragua on 8January 1876,14'giving the historyof the boundary
question with Costa Ricaand the invalidityof the 1858Treaty.
2.1.39 The correspondence on this theme persisted until the two States agreed to
the arbitration of President.Cleveland in 1888. Two letters from the year
1888 are fairly typical of the milieu. The immediate subject of discussion
was the legality of the presence on the San Juan of a Costa Rican
steamship: see the Note of Nicaraguato Costa Rica, dated 3 August
188614 an'dthe responseof Costa Rica,dated 31 August 18~6'~~.
2.1.40 In any event, soon after the exchangeof Notes inAugust, on 24 December
1886 the two States concluded a Convention to submit the question of the
validity of the Treaty of 1858to the arbitration of the Government of the
United ~tates'"~
(e) TheCleveland A ward0J2.2March 1888 andtheReport to &he
Arbitrator by George L.Rives, Assistant Secretay of Statof2 March
1888
2.1.41 The Cleveland Award of 22 March 1~88'~~ was concerned with the issue
of the validity of the Treaty of 1858 and certain other specific questions
I3%c~, Annex26.
14NCM, Annex27.
14CRM,Vol. 3, Annex32.
CRM, Vol.3,Annex 34.
'"NCM Annex 11.
lUCRM, Vol. 2,Annex16. indicated in the Convention on submission of these issues to arbitration
dated 24 December 1886. The text of theArbitralAward is economical
and it is necessaryto examine the Reportto theArbitrator prepared in the
Departmentof State in order to appreciate the conclusionsmore fully. The
Report was prepared by George L Rives, the Assistant Secretary of State,
and is dated2 March 1888.The Report of Rives is printed inthe Papers
Relating to the Foreign Relations of the United Skates, 188Part I,asthe
enclosure to the Award of the Arbitrator (which is Doc. 314 at page
4.561'~~ .he Award isincluded intheCosta kcan Memorial, Volume 2 at
pages97 to 100,but the enclosure, that is to say,the Rives Report, not
included.
2.1.42 The Rives Report has Seen quoted earlier inthis Chapter. It gives a
detailed account of the historical background of the Treaty of 1858. The
Report elaborates the prominence of territorial claims: see the quotations
above, paragraphs 2.1.22to 2.1.24.
fi TheFirst Awardby the UmpireE.P.Alexanderof 30 September 1897
2.1.43 This Award was rendered in accordance with the Matus-Pacheco
Agreement, concluded on 27 March 1896, relating to the process of
demarcation called for by theCleveland Award. The Agreement appears
in the CostaRica Memorial, Volume 2, Annex 17.
2.1.44 The views of the learned Umpire on the interpretation of the Treaty of
1858are of relevance for present purposes. As can be seen, the Umpire
' d S ~ Annex70.
83was seeking to identifthe object and purpose of the Treaty of 1858. In
his words:
"The conclusion atwhich I have arrivedandthe award I am
about to make do not accord with the views of either
commission. So, in deference to the very excellent and
earnest arguments so faithfully and loyally urgedby each
commission for itsrespective side,I will indicate briefly
my line of thought and the considerations which have
seemed to meto be paramount indetermining the question;
and of theseconsiderations the principal andthe controlling
one is that we areto interpret and give effectto the Treaty
of April 15, 1858,in the way in which it was mutually
understood atthe timeby its makers.
Each commission has presented an elaborate and well
argued contention that the language of the treaty is
consistent with its claimfora location of the initial point
of the boundary line at a place which would give to its
country great advantages. The points are over six miles
apart, and are indicated on the map accompanying this
award.
The Costa Rican claim is located on the left-hand shore or
west headland of the harbor; the Nicaraguan on east
headlandof the mouthof the Taura branch.
Without attempting to reply in detail toevery argument
advanced by eitherside in support of his respective claim,
allwillbe met and sufficientlyanswered by showing that
thosewho made the treaty mutually understood and hadin
view another point, to wit, the eastern headland at the
mouth of theharbor.
Itis the meaning of the men who framed the treaty which
we are to seek, rather than some possible meaning which
can be forced upon isolated words of sentences. And this
meaning of the men seems to me abundantly plain and
obvious.This treaty was not made hastily or carelessly. Each State
had been wrought up by years of fruitless negotiations to a
state of readiness for war in defense of what it considered
its rights, as is set forthin Article 1. In fact, war had
actually been declared by Nicaragua on November 25,
1857, when, through the mediation of the Republic of
Salvador, a final effort to avert it was made, another
convention was held, and this treaty resulted. Now, we
may arrive at the mutual understanding finally reached by
itsframers by first seeking in the treaty as a whole for the
general idea or scheme or compromise upon which they
were able to agree. Next, we must see that this generalidea
of the treaty as a whole harmonizes fully with any
descriptionof the line given in detail, and the proper names
of all the localities used, or not used, in connection
therewith, for the non use of some names may be as
significantas the use of others. Now, from the general
consideration of the treaty as a whole. the scheme of
compromisestands out clear and simple.
Costa Rica was to have as a boundary line the right or
southeast bank of the river, considered as an outlet for
commerce. from apoint 3 miles below Castilloto the sea.
Nicaragua was to have her prized sumo imperio of all the
waters of this same outlet for commerce, also unbrokento
the sea,
Itis to be noted that this divisionimplied also, of course,
the ownershipby Nicara~ua of all islands in the river and
of theleftor northwest bank and headland.
This division brings the boundary line (supposed it to be
traced downward along the ri~ht bank from thepoint near
CastiIlolacross both theColorado and the Taura branches.
It can not follow either of them, for neitheisan outlet for
commerce,asneitherhasa harbor at its mouth.
It must follow the remaining branch, the one called the
LowerSan Juan, throu~hits harbor and'intothe sea. The naturalterminus of that line is the right-hand headland
ofthe harbor mouth.
Next let us note the language of description used in the
treaty tellinwhence the line is to starkand how it isto run,
leaving out for the moment the proper name applied to the
initial point. It is to start at the moftthe river SanJuan
de Nicaragua, and shall continue following the right bank
of the saidriver to a point three Englishmilesfrom Castillo
Viejo.
This language is evidently carefully considered and precise,
and there is but one starting point possible for such a line,
andthat is at therightheadland of the bay.
Lastly, we come to the groper name appliedto the starting
point, 'the extremity of Punta de Castille', This name
Punta de Castillo does not appear upon a single one of all
the original maps of the bay of San Juanwhich have been
presented by either side,and which seem to include allthat
were ever published before the treaty or since. This is a
significant fact, and its meaning is obvious. Punta de
Castillo must have been, and must have remained, a point
of no importance, political or commercial, otherwise it
could not possibly have so utterly escaped note or mention
uponthe maps. Thisagrees entirely with the characteristics
of the mainland and the headland on the right of the bay
(emphasis added).146
2.1.45 As can be seen the in the underlined sections in the previous paragraph,
the Umpire focuses upon theexistence of 'a scheme of compromise' and
the establishmentof a division.
146
CRM,Vo1.2, Annex 18,Textof FirstAward.
86 E.THE EVIDENCEOFTHE OBJEC TND'PURPOSEOF THE TREATY OF1858: THE
LEGA LONSEQUENCES
2.1.46 Having set forth the substantial evidence available of the objectand
purpose of the Treaty of 1858, it is necessary to assess the Iegal
implicationsofthis material for the processof interpretation.
2.1.47 The position of Costa Rica is that Costa Rican vessels mubepermitted
to navigate the Rio San Juan 'sin ninguna condition' ("without any
condition"), and that, in consequence, Nicaragua may not exercisenay
rightsofsovereigntyand jurisdicti~n.'~~
2.1.48 This position is difficult to justtermsnof international law, Two sets
of considerations support the view that Nicaragua has a regulatory power
in respect of Costa Rican vessels exercisin'10sderechos perpetuosde
libre navegacion' ('the perpetual rights af free navigation') in accordance
with Article V1 of the Treaty of 1858. The first set of considerations
derives from the textual interpretation of the Treaty. The right of free
navigation is referred to subsequent to, and as a qualification of, the
recognition of the full sovereignty of the Republic of Nicaragua over the
waters of the Rio San Juan. Although the term 'soberania' isnot
employed, the words which do appear in the text- 'exclusivamente el
dominio y sumo imperio' - constitute a comprehensive and affirmative
formulation which connotes full title or sovereigntytheriver together
with the plenaryjurisdiction which such title or sovereigntyconnotes. The
rightof free navigation appears as qual$cation of the sovereignty of
Nicaraguaand is introduced by the term 'pero'(but). Thus a particular
right of Costa Rica is presented as a qualification ogeneral pnt of
147
SeeCRM,Vol.3,Annex 45,the CostaRica Noteda19August 1482.
87 rights (in theform of title (dominio) and sovereignty ('sumo irnperio') to
Nicaragua. The term 'sumo imperio' is as strong as the term 'sobcrania"
and the result is the establishment of a boundary; and thus Article VII
refers to 'la division territorial'. The principal objectof the Treaty was to
establish a boundary,hence it is entitled 'Tratadode Limites'.
2.1.49 Thus the right ofCosta Rica isa specificright in respect of territory under
the sovereignty of Nicaragua. The right of free navigation is not an
absolute rightand, apart from the evidence from the text of Article VE,
there is a second set of considerations which supports the view that
Nicaragua hasa regulatory power in respectof Costa Rican vessels.
2.1.50 Considerations of ordinary logic and good sense require that the right of
freenavigationbe articulatedby reference to two other elements. The first
such element is political and legal:istthe fact that the rightof navigation
occurs within the territory of another State and the balancing of the two
rights excludes the idea that the right of navigation is in some sense
absolute or peremptory. The right of navigation must be exercised by
reference to the legitimate interests of the territorialsovereign. The
second element pertinent to the sighof navigation can only be guaranteed
if the territorial sovereign is permitted to make the arrangements to
maintainthe physical and other conditions necessaryfor navigation. For it
is only the territorial sovereignwhich can make provision for the safetyof
navigation, the buoyingof channels, and the maintenance of public order.
It is difficult to envisage, at the functional level, a regime of 'free
navigation'in theabsence ofsuch conditionsof safety and security.2.1.51 There is a fiirtheimportant consideration arisingfrom the fact that Article
VI does not provide for 'free navigation' tout court, but only 'for the
purposes of commerce either with Nicaragua or with the interior of Costa
Rica, through the San Carlos River, the Sarapiqui, or any other way,
proceeding from the bank of the San Juan River.' Thus the right offree
navigation is articulated inthe form of a careful statement of purposes.
Indeed,the contentof the ClevelandAwardof J888, in its secondfinding,
underlines the special purpose of the right of navigation recognized in
ArticleVI. This partof the Awardprovides:
"The Republic of Costa Rica under said Treaty and the
stipulations contained in the sixth article thereof,has not
the right of navigation of the river San Juan with vessels of
war; but she may navigate said river with such vessels of
the revenueservice as maybe related toand connectedwith
her enjoyment of the 'purposes of commerce' accorded to
her in said article, or as maybe necessary to the protection
of said enjoyment."'4g
2.1.52 From this premiss two conclusions follow. First, the fact that the right of
navigation is subject to careful definition and precise limitation confirms
the view that the right is to be exercised in a context of Nicaraguan
sovereigntyand generaljurisdiction. Secondly,Nicaragua must have the
power to regulate Costa kcan trafficfor the purpose of ensuring thatthe
conditions of the right of navigation laid down in the Treaty are being
observed.
2.1.53 The position adopted in the previous paragraphs, according to which
Nicaragua has a power of regulation consistent with the provisions of
14'CRIMV, ol2,Annex 16.
89 Article VI of the Treaty of 1858, is confirmed by the opinion of experts
and the practice of Statesin comparable situations.
2.1.54 Thus the well-known authorityof the nineteenth century, Wheaton, makes
the following statementof principle:
"Things of which the use isinexhaustible, such asthe sea
and running water, cannot be so appropriated asto exclude
others from usingthese elements inanymanner which does
not occasiona lossor inconvenience to theproprietor. This
iswhat iscalled innocent use. Thus we have seen that the
jurisdiction possessed by one nation over sounds, straits,
and other arms of the sea, leading throughits own territory
to thatof another, or to other seas common to all nations,
does not exclude others from the rightof innocent passage
through these communications. The same principle is
applicable to rivers flowing from one State through the
territory of another intothe sea, or into the territory of a
third State. The right of navigating, for commercial
purposes, a river which flows through the territories of
different Stateiss,common toall the nations inhabiting the
different parts of its banks; but this right of innocent
passage being what the text-writers call an imperfectright,
its exercise is necessarily modified by the safety and
convenience of the State affected by it, and can only be
effectually secured by mutual convention regulating the
mode of its exer~ise."'~'
2.1.55 It is not suggested that this reasoning is directly applicable the present
case, especially inview of the fact that the right of navigation presently in
issue arises from a bilateral Treaty. However,the significant point is
presented in the finalsentence of the passage which clearly assumesthat,
when it exists, a right of navigation for commercial purposes is subjectto
certainconditionsas to themode of its exercise.
149Wheaton,ElementsofInternationLaw, 1866,Part11,ChapterIV,section193.
902.1.56 The same point is made by the great classical Latin American jurist,
Andres Bello,in the following passage:
"Passage of foreign vessels through territorial seas is
generally seen as a right of innocent use and some nations
grant it to otherswithout difficulty.
The same is naturally applicable to rivers and lakes. The
difference of circumstances, however, produces some
important modifications with respect to rivers, in which
passage through foreign waters is usually absolutely
essential for the trade of the riparian States. A State that is
the owner of the upper part of a navigable river has the
right of navigation to the sea, which cannotbe hampered by
the state that owns the lower part, nor disturbed with
regulations and duties thatate not necessaryfor its own
security or compensation for the inconvenience causedby
the navigation. In 1792,when Spain owned the mouth and
both sides of the lower Mississippi, and the United States
owned the left side of the upper part of the same river, it
was strongly advocated by the United States that the laws
of nature andof nations gave themthe right to navigate that
river up to the sea, only subject to the rules that Spain
deemed reasonably necessary for its own security and for
the protection of ittax ordinances. The United States also
advocated that since the right to an end entails the righto
the essential means to achieve that end, the right to
navigate the Mississippi entailed the right to anchor or
moor on the beach, and even the right to disembark if
necessary. The question ended in favor of the United
States. Today, however, the owners of the two sides of this
river exclusively enjoy the rightof navigation.""'
2.1.57 It is common for modern authorities to recognize that any right of free
navigation is subject to 'the necessary regulatory powerof the riparian
Bello,DerechoInternational1872edition,ObrasCompletas,a Universidade Chile,Sixth
Volume,pp.95-96 n,otesomitted.
91 States':see0 'Connell,lnternatiolaulLaw, 2" ed.,London,1970,Volume
I,page579.
2.1.58 Inanycase aprocessof deduction fromother Treaty regimes isnot a safe
guide to the interpretation of the Treaty o1858 between Nicaragua and
Costa Rica. On a reasonable interpretation of that instrument three types
of regulationby the Nicaraguan authoritieswould be compatiblewith the
principle of free navigation,namey:
(a)The rightto monitor thecharacter of the vessels exercising the
right of navigation in order to restrict the passage of 'vesselsof
war' "' in accordance with the Cleveland Award 1888 as well
as any vessel not carryingobjetos de comercrio. Certainly, the
passage of anyvessel which appearedto be a vesselof war from
itsexternal aspectand modeofhandling couldbe challenged.
@)Theapplicationof regulations concerningbuoying, lighting and
other matters connected with the maintenance of conditionsof
safenavigation.
(c)The implementation of measures reasonably necessary for the
security of the Republic of Nicaraguaand the safety of the
peoplelivingand working in the vicinityof thefrontier.
2.1.59 There is authorityfor the view that a Statemay exercise a police power in
respect of vessels exercising a Treaty-based right of free navigationin
riverswithin its territory: seethe General Claims Commissionin James H.
McMahan (U.S.A.) v United Mexican States (19291, Reports of
InternationalArbitral Awards, VolumeIV,p.486,at page490.
15CRM,Vol2, Annex 16.
822.1.60 The reasoning of the General Claims Commission has considerable
relevanceinthe present context. In thewords of theDecision:
"Inview of these provisions, there is no doubt but that
McMahanandhis companions were exercising a perfectly
reeognised right in navigating on a part of theFbo Grande
which servesas boundarvbetween thetwo nations.
But, on the other hand, it is also necessary to take into
account that thesame Treaty of 1848 to which reference
has been made above, in itsArticle VII further provides
that:
"The stipulations containedin the present Article shall not
impair the territorial sights of either republic within its
establishedlimits."
The Treaty of 1853,as has been noted, leaves inforce all of
Article VII, in so far as it relates to all of that portion of the
Rio Grande which under this Treaty was established as a
boundary, and, consequently, leavesin forcethe reservation
hereinbefore alludedto.
It appears that the reservation expressly made of the
territorial rights of either Republic, within the limits which
were established, covers the right of exercising the police
power, inasmuch as it is one of the rights which the
sovereign exercises over its territory. It is pertinent to
recall at this point that the boundary or dividing line
between both nations in reference to the Rio Grande, isthe
middle ofthis river, following thedeepest channel, which
signifiesthatup tothis point, the two nations may exercise
their fullterritorial rights. But if this alone were not
sufficient, by studying the subject of navigation on
international rivers, whether they be boundary lines
between two or more territories, and empty into the sea, it
is found that the tendency is to establish the principle of
free navigation,providedit be aIwavs limited by the right
of theriparianStatestoexercise police rightsinthat portionof the course which corresoonds to them. (See Oppenheim,
International Law, Vol. 1, pp. 314-322, 3d, Ed. 1920;
Fauchille, hit International Public, Vol. 1, 2" Part. Pp.
453 el seq.gthEd. 1425;Moore, Intern.~larion LalwDigest,
Vol. 1, pp. 6 16. et. seq.; J. de Louter, Le Droit
InternationalPositif,Vol. 1, p.445; Oxford Ed. 1920.) The
Congress of Vienna of I815 fixed the free navigation of
certain riverssubject topolice regulations. Sincethis date,
the restriction appearsinnearly all treatieand has at times
been accepted by the United States: Treaty of Washington
of May 8, 1871, Article XXVI; Treaty of June 15, E845,
Article 1I. It should also be observed that the Institutof
International Lawin itssession at Heidelbergon September
9, 1887, adopted regulations for the navigation of
international rivers, applicable to rivers separating two
States as well as those traversing several States, in which
the right of the ripariansto exercise police powerover the
stream is recognised.
What extension this right of exercise of the police power
may have, as confronted with the principle of free
navigation, is a matter as yet not defined by theory or
precedent. It is reasonableto think, however, that theright
of localjurisdictionshallnot be exercised in such a manner
as to render nugatory the innocent passage through the
waters of the river,particularly if it be establishedbytreaty.
Therefore, it does notseem possibleto deny that Mexicois
entitled to exercise police powers, some police powers, at
least, over the course of the Rio Grande, and it does not
appear excessive or contrary to the rightof free navigation,
that jurisdictional actioof the Mexican authorities, which
in one specific occasion and for special causes bearing on
its primary right ofdefense, was intended to ascertainwhat
was being done and what objects were being carried by
suspicious individuals who were travelling over deserted
places insmallcrafts."'52 I,:*#
2.1.61 The McMahan case concerns s" rea aetme establishing themiddle of
the river as the boundary. The General Claims Commission recognized
that up to this point 'the twonations may exercise their full territorial
rights', and accepted, as a consequence, that both riparian Stateshad the
right to exercise police powers "in that portion of the course that
correspondsto them."
2.1.62 In the present case, in the absence of a median line boundary, it is clear
that Costa Rica cannot be accorded a general police power over the ko
SanJuan. Inthe Award ofPresident Cleveland,as Arbitrator,the question
of theright of navigation ovessels of war wasresolved not by recourse to
a generalized 'rightof freenavigation'but to the conditions of navigation
specifiedin the Treaty:thatis to saythe right of 'free navigati..for the
purposes of commerce. ' (ArticleVI). Thusthe right of navigation is given
a configuration related to the object and purpose of the Treaty of Limits,
and not related to a general principle of free navigation. To decide
otherwise would be to compromise the territorial settlementwhich was
generous to Costa Rica in certain respects, but recognized the extent of
Nicaraguan sovereignty as faras theright bank.
2.1.63 There are certain materialswhich, whilst not directlyrelevant, provide
support by way of analogy for the proposition that a right, freedom, or
liberty,maybe subjectto a certain degreeof regulationby the sovereignof
the territory withiwhich the right, freedom, or liberty is to be exercised.
Thus, in the North Aflantic Coast Fisheriesarbitration{1910), the United
States claimed that Great Britainhad noright to make regulations for a
fishery inwhichAmerican citizenshad been granted 'a liberty to take fish
of every kind' by a Convention of 1818. The Tribunal (created by a SpecialAgreement of 1909) decided that itwas lawful for Great Britain to
make regulations if they were bonafide and not in violation of the Treaty
and also if they were: "(1) appropriate or necessary for the protection or
preservation of such fisheries, or (2) desirable or necessary on grounds of
public order or morals without unnecessarily interferingwith the fishery
itself;and in both cases equitable and fair as between local and American
fishermen ...,.153
2.1.64 Of considerable interestis the decisionof the International Courtof Justice
in theRigh ot Pa'ssage case (Portugal v 1ndia)Is4.In that case the Court
found that Portugal had, on the basis of a localcustom, a right of passage
over intervening Indian territory between the enclavesof Dadra andNaga-
Aveli and thecoastal district ofDaman, and between theseenclaves, to the
extent necessary for the exercise of Portuguese sovereignty over the
enclaves and subject to the regulation and control of India, in respect of
private persons, civil officials andgoods in Both Portugal and
the Court recognized that the passage was subject to the regulation and
control of India. Moreover, the Court held that itwas within this right of
regulation and control for India to refusepassage when there was tension
in intervening Indian territory because of political events in the
enclaves15! Whilst the relevance of this decision is reduced by the fact
thatthe context was a local custom dependent upon the particular practice
ofthe Parties (and of the British authorities as predecessors to India),the
general approachof the Courtis relevantto the matterat hand.
I" ScottHugueGout-1Reporr.7,New York, 1916,p,,141at p.17;Wilson,TheHugueArbitration
Cases,Boston, 1915,p.135 atp.170;Parry (ed.), British Digestof InternationalLaw, Vol. 2b,
London, 1967,p.58 5tp.594.
I54IC.3.rep orb.960,p. 6.
15'Ihidp.,.40,45-46.
hid., pp44-45.
952.1.65 Ithasnotbeenthe purposeof tIeapresent chapterto deal in detail withthe
preciseissueswhich havearisen between the parties at various times and
which was to some extent thesubject of theCleveland Award, However,
the general purpose has beento identifythe criteriawhichnecessarilyarise
fromthe object andpurpose of theTreaty of Limits,together withtheduty
to construe the Treaty asa whole (theprinciple of integration).
2.1.66 In the result Nicaragua, as the territorial sovereign, must have regulatory
powers for the followingpurposes:
(a) The protection and maintenanceof theright of navigation, that is to
say,the power to maintainpublic orderandstandards of safetyin
respectof navigation; and;
(b) The maintenance of the Treaty provisions prescribing the
conditions of navigation in accordance with the Treaty, that is to
say, the maintenance of the discipline of the Treaty as such,
together with the terms of the Cleveland Award. CHAPTER J
THECLEVELAND AWARD AND OTHERCONSIDERATIONS
Section3. 1
Interpretation of the 1858 Treaty in the ClevelandAward
A. INTRODUCTION
3.1.1 The rights and obligations of the parties inthe present ease are governed,
first and foremost,by thet858Jerez-CaiiasTreaty, TheArbitral Award of
the Presidentof the United Statesof America, Grover Cleveland, rendered
on March 22, 1888,upheld the validity of the 1858 Treaty and answered
other questions put to the arbitrator by the partiNicaragua, of course,
fully accepts the Cleveland Award. However, the Award didnot replace
the Treaty, as Costa Rica seems to suggest. In fact,as this Subsectionwill
show, President Cleveland was carehl not to depart from the text of the
Treaty in his Award. Moreover, an important issue before the Court in
this case- the meaningof navigation "conobjetos de comercio" - wasnot
beforethe arbitrator and was not addressed in his Award. Especially as to
that issue, therefore, it is the 1858 Jerez-Caiias Treaty rather than the
Cleveland Award that constitutes theprincipal determinant of the parties'
rights and obligationsin this case.
3.1.2 The main reason Costa Rica and Nicaragua went to arbitration was to
resolve a dispute between them over the validity of the Jerez-CaiiasTreaty
of April 15, 1858. This isevident from both the very title of the I886
Rornin-Esquivel-Cruz Convention of Arbitration ("Convention...to
submit to arbitration...the question in regardto the validitheotreaty of 15 April, 1~58"'~') and the first sentence of the preamble of that
agreement, according to which: "The Governments of the Republics of
Nicaragua and Costa Ricadesiring to terminate the questionpendins gince
1871,viz.,whether the Treaty signed by both on the 15th April, 1858,is or
,3158
is not validhave named [theirrespective plenipotentiaries, etc....
3.1.3 Only if the arbitrator found the 1858 Treaty to be valid was he asked to
addresssubsidiary questions,namely: "wh'ether Costa Ricahas the right to
navigate the River San Juan with ships of war or revenue boats"; and all
'"theotherpoints of doubtful interpretation foundby eitherof the Parties in
the Treaty....,59 Nicaragua communicatedto Costa Rlca eleven "points of
doubtful interpretation" that itproposed to submit to the arbitratorwhile
Costa Ricacommunicated none, finding "nothing in that [the18581 Treaty
which isnot perfectlyclear and intelligible."'60
3.1.4 This statement by Costa Rica is especially interesting since, as discussed
below, the Treaty says nothing about whether Costa Rica had a right to
navigate on the SanJuan de NicaraguaRiver withvessels of waror af the
revenue service. If the Treaty was "perfectly clear andintelligible," one
mightwonder, what ground did Costa Rica have for believing it had a
right to navigate in Nicaraguan territory,on the San Juan River, with such
vessels?
NCM,Annex 11,ConventionbetweentheGovernmento sfNicaraguaandCostaRica tosubmit
to the arbitratof the Governmenof the UnitedStates the questnoregarto thevaliditof
thetreatyof 15 Apri1858(theRohn-Esquivel-CruzConventionof Arbitration),4 Dec. 1886,
see alsoCRM,Yol.2, Annex14.
ISR CM, Annex1I,preamble.
I5"lbid.,Arti6.e
'60~~~, Annex 70, Arbitratibetweenthe-Republicsof CostaRica andNicaraguairelatioto
the validityof the treatyof 15Ap1858.-Reportto thearbitratort,he Presidentof theUnited
Statesby GeorgeL.Rives,AssistantSecretaof State,U.S.Departmenof State.
1003.1.5ThisSubsectionwill showthat kfi$dispute over this questionarose out of a
unilateral actby Costa Ri8a'in 1886 in clear contravention of the Treaty
whereby Costa Rica navigated on the San Juan hver with a national
steamship to enforce her customslaws. That this is not permitted by the
text of the Treaty is clear. President Cleveland, being aware of this,
denied Costa Rica any right whatsoever under the Treaty to navigate on
the San Juan with vessels of war, and allowed Costa Rica only the most
restrictiveof rights to navigate on the river with vessels of the revenue
service,and eventhenonly under certain conditions, as shownbelow.
3.1.6 Moreover, of the eleven points of doubtful interpretation raised by
~icara~ual~',none related in any way to Costa Rica's right under Article
VI of the 1858 Treaty to navigate on the San Juan River with articles of
trade ("conobjerosde comercio"). Thispointwas simply not regarded by
the parties at thetime as being in any way '"odoubtful interpretation" and
wastherefore not submittedtothearbitrator fordecision.
3.1.7 Thus the CIeveland Award sheds no direct light on the meaning of the
phrase, "can objetos de comercio". Indeed, if the content and scope of
Costa Rica's right to navigate "con objetos de comercio"had been at
issue, it seems certain that the parties would have paid more attention to
the translation of the originalSpanish words in their pleadings, as would
President Cleveland in his Award. Yet fromallthat appears,they paid no
attention at all to this phrase. Indeed, the translations of the 1858Treaty
prepared by both parties for the Cleveland Arbitration were identical on
this point rfor the purposesof commerce'"). President Cleveland, for his
part, was careful not to prejudice in any way the meaning of the Spanish
'''Note fromthe Ministerof ForeignAffairsof Nicaragua FernandoGuzrnan to Minister of
ForeignAffairsofCostaRica,22June1887.CRM,Vol.3, Annex 36.
10I text, as shown by his enclosing the English translation of the phrase in
quotation marksin the Second paragraph of his ~ward'". It isthus the
1858 Treaty, not the Cleveland Award, that is controlling on the question
of the nature and scope of CostaRica's right to navigate in Nicaraguan
territory, an the SanJuan River, "con objetos decomercio".
3.1.8 On the other hand, some indication of whatthe parties, and thearbitrator,
must have assumed was meant by the phrase "con objetos de comercia" -
or even "for the purposes of commerce" - is provided by the arbitrator's
treatment of a related question:whether and to whatextent ~osia hca had
the right of navigation on the SanJuan Riverwith vessels of the "revenue
service".
3.t.9 This Subsection will show that themeaning of the phrase "con objetos de
cornercio" was notbefore President Cleveland;that President Clevelandin
his Award was in fact careful not to express any view regarding the
meaning of navigation "con objetos de comercio"; that it is the 1858
Treaty that determinesthe rights and obligations of the parties on that
question in the present case; that the Treaty makes no reference to vessels
of the revenue service; that it is clear from the Award and from the
arbitrator's rejectionf broaderrights of navigation thatany right of Costa
Rica to navigate with such vesselsin Nicaraguan territory,on the San Juan
River, arises only in respect of articles of commerce and only when
necessary; and that no armed navigation by Costa Rican vessels, or
exercises of jurisdiction by them, is permitted by the Treaty on the San
Juan Riverwithout the prior authorizationofNicaragua.
-
162
CRM,Vol. 2,Annex 16.3.1.10 Beforeproceeding to these poinis, however, it is worthrecalling that like
Nicaragua, Costa Rica has always recognized the Cleveland Award as
definitive,binding and final.
1. Costa Rica'sRecognition ofthe ClevelandAward asDepnitive,
Binding and Final
3.1.11 BothNicaraguaand Costa Rica havealways recognized that the Cleveland
Award interpretsthe 1858Treaty in a definitive,binding and final manner.
This is reflected in variousbilateral instrumentsas we11as in statements of
representative sf thetwo Governments.
3.1.12 The Government of Costa Rica, in particular, has constantly recognized
the CIevelandAwardas having this character. The Minister of Foreign
Affairsof Costa Ricastated at thetime of the Awardthat:
"...my Government desires nothing more earnestly than to
remove any reason that could serve as an opportunity for
newdiscussions between this andthat sister Republic, now
that the old ones have happily ended with the award of the
Presidentof the UnitedStates." lG3
3.1.13 Subsequent Notes reflect the same recognition on the part of Costa Rica.
Thus, in a note to the Nicaraguan Foreign Minister of 9 August 1895,the
Minister of Foreign Affairs of Costa Rica, referringto the boundary line
dispute, reaffirmsCosta Rica's recognitionof the finality of the Award in
his observationthat:
16Note fromthe Ministerof ForeignAffaofsCostaRicato the Ministerof ForeignAffairsof
Nicaragua,25September1888;NCM,Annex36.
PO3 "Otherwise, the great efforts of both Republics to put an
end to their disputes would be worthless, thereby
underminingthe incontestable authority of the Award and
offending the dignityof the Arbitrator, who, opportunely
and with such high spirit of conciliation, gladly responded
to our common call and put himself at the service of
,64
peace.. .
3.1.I4 More recently, the President of Costa Rica, in a Note to the President of
Nicaragua sf 29 July 2000,stated that:
"a) the sovereignty over the entire course of the San Juan
River correspondsto Nicaragua; b) that in accordance with
the Cleveland award of 1888, which constitutes a n
obligatoty interpretation qf the Caias-Jerez treatyof limits
dl858 ..."(Emphasisadded)lb5
3.1.15 Costa Rica's recognition of thebinding and final nature of the Cleveland
award is alsoreflected inan importantofficialdocument of the Ministryof
ForeignAffairs,the Yearbook,in 1888, which states:
"The President of the United States has proven himself
worthy of the gratitude of Costa Rica and Nicaragua by
acceptingthe duty that these have entrusted to his erudition
and highest respectability; and forhaving put an end, with
his illustrious decision,to the sole motive fordisagreement
that separatedthese two countries.3,166
3.1.16 President Cleveland's Arbitral Award definitively settled the questions
regardingthe interpretation of the 1858treaty, in particular, all questions
that existed then. By necessary implication,therefore,there were no other
questionsthat created doubts for the parties in the Treaty. As regards the
lM NCM,Annex37, Note of4August 1895.
'" CCRM ,ol.3,Annex 56.
NCM,Annex 75.Yearbookof the SecretarytForeignAffairsofCostakca. 1888. pp. 3-4.
104 juridical situation, as Costa &can President Miguel Angel Rodriguez
recognized in the Note of 29 July 2000 mentioned above that it is worth
noting that"...c)thatsince 1888 nothing has occurred to changethi legal
status.." (Emphasisadded)'67
3.1.17 Costa Rica, however, after constantly and repeatedly recognizing the
definitive, final and binding character of the 1888 Arbitral Award with
respect to the interpretation the 1858Treaty,has effectivelymodified
her juridicalposition, as can be noted in the Application filed before the
Court on 24 September2005, and in the Memorial submitted to the Court
in29 August 2906.
3.1.18 Bythus arguing for a new interpretationof the 1858Treaty, as finallyand
definitively interpreted in the Cleveland Award, Costa Rica clearly
appears to be calling into questionthecharacter of those two sources of
lawgoverninghernavigational rightson the SanJuanRiver.
2. TheParties Did Not Request President Clevelandto Determine
the Meaning of "conobjetos de comercio ",Nor Did PresidentCleveland
Purportto Do So
3.1.19 As already noted above in paragraphs 3.1.2 to 3.1.3, on 24 December
1886, Costa Rica and Nicaraguaconcluded the RomLn-Esquivel-Cruz
Convention of Arbitration in which they submitted certain questions to
United States President Grover Cleveland for his final and binding
decision. These questionsare stated in Articles and 6 of the 1886 treaty
as follows:
'6CRM, Vol.3,Annex66.
105 "(1) The question pending between the contracting
Governments in regard to the validity of the Treaty of
Limits of the 15Ih April, 1858, shall be submitted to
arbitration.
(6) If the decision of the Arbitration declares the validity of
the Treaty, the same award shall declare whether Costa
Rica has the rightto navigate the River San Juan with ships
of war or revenue boats. Also the decision aforesaid shall,
in case of the validityof the Convention, decide the other
points of doubtful interpretation found by either of the
Parties in the Treaty, and communicated to the other Party
within 30days fromthe exchangeofthe ratifications of this
7,168
Convention .
3.1.20 Thetwo principal questionssubmitted to the President of the United States
as sole arbitrator were thus whether the 1858 Treaty of Limits was valid
and whether Costa hca had the right to navigate on the San Juan River
with vessels of war or of the revenue service, As has been seen, the
arbitrator answered the first question in the affirmative and, as to the
secondquestion, decided that Costa Rica did not have the rightto navigate
on theSan Juan River with vesselsof war but did have a right to navigate
on the riverwith vessels of the revenue service - a right which, however,
would arise only under certain narrowly circumscribed conditions. The
present Subsection will returnto the latter sightpresently.
3.1.21 As already noted, none of the eleven "points of doubtful interpretation5,169
communicated by Nicaragua raised the question of the scope of Costa
NCM, Annex 11andCRM, Vol. 2Annex 14.
'6k~, VoC.3,Annex36.
106 !". .I3'
I
.I
Rica's rights to navigateon the Sin Juan River "con objetos de cornercio".
This issuewas thus not before the arbitrator.
3.1.22 Yet Costa Rica wouldhave the Court give the Cleveland Award sweeping
effect. Thus CostaRica states in her Memorial: "[TlheCleveland Award
confirmed and authoritatively interpretedthe extent of Costa Rican rights
of use of the ~iver.""~ The Award, of course, did no such thing. It
simply answered the two questions put to the Arbitrator by the parties and
decided upon the points of doubtful interpretation communicated by
Nicaragua. Costa Rica, therefore,maynot rely on the Cleveland Awardas
having decided anything with regard to the meaning of the phrase, "con
objetosde cornercio".
3.1.23 It is true that President Cleveland, in the second section of his Award,
referred to an English translation of the phrase. Here the Arbitrator
declared that Costa Rica "may navigate saidriver with such vessels of the
revenue serviceas may be related to and connected with her enjoyment of
the 'purposes of commerce' accorded to her in said article ..."I7'
However, no conclusions may be drawn as to the meaning of the phrase
''conobjetos de comercio" on the basis of the arbitrator's havingused an
English translation of those words, particularly when their meaning was
not at issue inthe arbitrationas justpointed out.
3.1.24 Moreover,the fact that President Cleveland enclosedthe phrase "purposes
of commerce" in quotation marks is striking. This clearly shows that
while using the English translation of the phrase, the arbitrator was at
pains not to prejudice the meaning of the original and authoritative
'7CRM,para1 ..04 atp.2.
17CREvf , ol2, Annex 15.
107 Spanishtext. It is entirely understandable that President Cleveland should
have been careful in this regard because later in thesame sentence of the
Award he linked Costa Rica's right to navigate with "vessels of the
revenue service" to "her enjoyment of the 'purposes of commerce'
accorded to her in [Article 6 of the 1858 rea at^]..." '^osta Rica's right
to navigate with vessels of the revenue servicewas therefore tied to, and
measured by, her right to navigate "con objetos de comercio". That the
content of the latter rightwas not before the arbitrator is underscoredby
his having enclosed the English translationof the phrase in quotation
marks.
3.1.25 Furtherevidence of the fact that themeaning of the phrase "con objetos de
comercio" was not at issue in the ClevelandArbitration Isprovided by the
truvam prgparatoires of the Award. Under the authority of Article V,
paragraph 5, of the Roman-EsquiveI-CruzConvention of Arbitration of 24
December 1886'~~P ,residentCleveland empowered Mr. George L. Rives,
Assistant Secretary of State, to examine the arguments and evidence
submitted by the two sides and to prepare a report to the President upon
which a decision in the case might be based.IT4 In the second part of his
report,Mr. hves addressed the questions raised in Article VI of the 1886
Arbitration Agreement, in particular, whether Costa Rica had the right of
navigation on the San Juan River with vessels of war or of the revenue
service. After stating that'"tlhe answer to thisquestion depends upon a
I7CRM,Vol. 2, Annex16.
NCM,Annex1 1.(Article5)
174The instrumenby whichPresidentClevelanddelegatedthis authorityto GeorgeLRivesis
reproducedin J.B. Moore, HistoryandDigestof Internatiol rbitratiotowhich the United
Stateshasbeena Party vol. 2, p1945,note 2, U.SGovernment PrintingOffice,Washin~on,
DC., i898.Mr. Rivescommunicated a copyof thePresidentorderto CostaPiicaandNicaragua
on thedayitwasmade. For. Rel1888,part1,pp.455-456.
108 I,
consideration of Article VI of ihkl"~reatyof 1858," Mr. fives set forth
an English translation of Article VI. What is of present interest, however,
is that he included in this version of Article VI the original Spanish
versions of the phrases he appears to have considered to be most important
for purposes of the arbitration. These phrases, and their Spanish
counterpartisnsertedbyRives,areas follows:
-"...shall possess exclusively the dominion and supreme
control (tendrtiexclusivarnente el dominio y sumo irnperio)
...
[...I
-...the perpetua lightof free navigation (10sderechos
-...which is hereby declared to belong
corresponder ...)".176
3.1.26 Mr. Rives utilized a translation of the phrase "con objetos de conaercio",
which also appears in ArticleVI, reading "for the purposes of commerce".
However, he did not include the original Spanishversion of this phrase in
his report. It seems clear that if Rives had thought thisphrase had
significant bearing upon the issues before the arbitratoh re would have
included the original Spanish version, as he did with the phrases set forth
above. Since he did not,the conclusion may be drawn that Mr. fives did
not believethat this phrase was in any way germane to the dispute before
the arbitrator.
"'GeorgeL.hves, "Second:IftheTreatyof the1sL hpril,1858is valid,whatisitstruemeaning
in respectof the variousmatterssubmittedfor decision?", DeparotfStateWashington,2
March1888, NCM, Annex79.
NCM,Annex 70.
109 3. CostaRicaMayNavigateorz the San Juan de Nicuragzla River
with Vessels ofthe Revenue ServiceOnlyto the ExtentNecessaq~ to the
ExerciseofherRightto Nuvigate withArticles of Trade(conobjetosde
comercio). This right isnotmentioned inthe 1858 Treaty
3.1.27 Costa Rica has repeatedly accepted that she may not navigate on the San
Juan with warships or with revenue vessels exercising jurisdiction. For
example, Article 6 of the Carazo-Soto Treaty of 1887provides: "3" The
right granted to Costa Rica...does not comprise the right to navigate with
vessels of war or vessels of the revenue service exercising jurisdiction"77
Similarly, in the Montealegre-JimCnezConvention Costa Rica accepted
the Aybn-ChevalierTreaty of Canalization, which stated that:
"...Costa Rica may establish customs and warehouses
at the expense of the State, upon prior notice to the
Government of Nicaragua, in no ca,,I78owever, may
Costa Ricaplace armed forces ...
3.1.28 In her Memorial, Costa hca understandably focuses upon the Cleveland
Award and seeks to deflectattention from the 1858Jerez-Caiias Treaty.
Costa Rica also seeks to aggrandize her rights under the Treaty through
references to treatiesconcluded by other states in the 9'hcentury,'7'none
of which is apposite to the unique circumstances of the San Juan, and
through an extensive discussionof the character of United States Revenue
Cutters in the late nineteenth~entur~.''~Costa Rica explainsthe relevance
of the latter as follows:"In drawing a distinction between men-of-warand
revenue cutters, the Cleveland Award evidently took into account
"' Canzo-Soto Treaty,Managua, 26 July 1887.This treatydid noenterintoforcefor want
178ificationicaragua.CRM,Vol.2, Annex 15.
Montealegre- JimknezConvention,18June1869,Article12,NCM,Annex8.
CCRMp ,ara4.80.
'"cRM, paras.4.81-4.82.
110 i '11..
1 I
1
contemporary naval Costa Rica thus ignores entirely the
special regime of the San Juan, a wholly Nicaraguan river, attempting to
suggest that because U.S. Revenue Cutters that ply U.S. waters have
certain characteristics, including armaments, CostaRican revenue vessels
wishing to sail on Nicaraguan waters - the San Juan River - have a right
to be outfitted in like manner. Along this same line, Costa Rica accepts
that "President Cleveland excluded the possibility of Costa Rica
navigating with vesselsof war" but goeson to statethat 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
3.r182
be necessary to the protection of said enjoyment. What those "other
public vessels", apartfrom revenue vessels, might be, and precisely where
President Clevelandstated that they would have a rightto navigateon the
San Juan, Costa Rlca does not say.ls3 Instead, it attempts to leave the
implicationthat the San Juan should be treated as if it is not a Nicaraguan
riverbut ratherone over whichjurisdiction, and sovereignty, is shared, as
if the border followed the medianline or thalweg of the streamratherthan
the right (Costa Rican)bank, inthepertinent sector.
3.1.29 Nicaragua would respectfully requestthat the Courtput toone side Costa
Rica's arguments concerning treaties between other states concerning
rivers that are not situated similarly to the San Juan, as well as interesting
but in the end irrelevantinformation about United States Revenue Cutters
IS'CRM, para.4.81.
'" lbid.,para.4.83(emphasisadded).
la3ThesecondParagraph of theClevelandAwardsimply indicatetshatCostRica"hasnotthe
rightofnavigationofthe River San Juanwith vesselsofwar;but shemaynavigatesaidriverwith
suchvessels oftherevenueservice as may berelatedtoandconnectedwithherenjoymentof the
"purposesof commerce"accordetd oherinsaidArticle,or asmay benecessary totheprotection
ofsaidenjoyment." Nowheredoesitmention"otherpublicvessels".
111 in the nineteenth century. As shown in Chapter 4, Section 3, below, the
latter information actually reveals why President Clevelandwas so careful
to constrain narrowly Costa Rica'snavigation with such vessels - namely,
because they can easily be transformed or evolve into warships, with
which he had found Costa Rica had no right to navigate on the San Juan,
To be sure, as shown in Chapter 2, Nicaragua would have the right, within
her police power, tostop any vessel suspected of exceeding Costa Rica's
navigational rights underthe 1858 Treaty and the Cleveland Award. But
rather than accepting Costa Rica's invitationto dwell upon inapposite
treaties between third statesand irrelevant information regarding revenue
vessels,also of a third state, Nicaragua woulddirect the Court's attention,
to the principal source of the parties' rights and obligations: the 1858
Jerez-Cafias Treaty.
3.1.30 Specifically, in reading the Cleveland Award, it is important to bear
constantly in mind thatvesselsof the revenueservice are not mentioned at
all in the Jerez-CafiasTreaty. Article 6 of that agreement, which in fact is
silentasto the right of navigation by any sort of public vessel,'84restricts
Costa Rica's rightto navigate on this wholly-Nicaraguan riverto vessels
carrying articles of trade("objetos de comercio"). These would ordinarily
be private commercialvessels carrying goods to market or to be shipped
abroad. Costa Rica's Memorial ignores these boats almost entirely,
seeking instead to construct an inverted pyramid of rights upon these
simple craft. The rights that CostaRica asks the four words "con objetos
de com~rcio" to bear seem to entail navigation on the San Juan by Costa
Rican public vessels, possibly armedand of various sizes and descriptions.
IR4This poindid notescapeGeorgeL. Rives,whonoted withreferencetoArticle6 of the1858
Jerez-CafiasTreatythat "the foregoing Articitwill be observedis silenas tothe rightof
navigationbypublicvessets."Reportof GeorgeL. Rives,(Second),NCM, Annex 7 1.
112 *,
Surely this cannot have been ihe intent of the parties tothe Jerez-Cafias
Treaty, or indeedof President Cleveland. Some background on how the
question of navigation by revenue vesselsaroseconfirms that this is the
case.
3.1.31 The specific questionto be examined is why, in the arbitral agreement,the
parties requestedthe arbitrator to determine whether Costa Rica had a
rightto navigate on the San Juan Riverwith vessels of therevenue service,
especially whenthe 1858Treatyitselfappears, byits silence on this point,
to answer this questionin the negative,Some light is shed on the issue by
an episodeinvolving a public steamship sentby Costa Rica, almost thirty
years after theconclusion of the Jerez-CaiasTreaty, to navigateon the
SanJuanRiver,under protest by Nicaragua.
4. Originofthe Controversy over Costa Rica 'sNavigationwith
Vesselsofthe RevenueService: The1886DisputebetweenthePartiesover
CostaRica 's Useofa National StearnshlptoPatrol theEntireLengthof
theSan JuanRiver hravigableby CostaRicato ConductCustoms
ReconnaissanceandSuweilJunce
3.1.32 An episode in 1886involving a CostaRicancustoms steamshipis alluded
to, although only with great subtlety, in Article IX of the 1886 Roman-
Esquivel-CruzConvention of Arbitration. That Article statesas follows:
"Pending the decision of the validity of the Treaty, the
Government of Costa Rica, consents to suspend the
fulfilmentof itagreement of 16'~March lastrelativeto the
navigation of the River San Juan by a Government
steamer."'g5
"'NCM,Annex 11,seealsoCRM,Vol.2, Annex 14.
1133.1.33 The controversy between the two countries regarding the Costa Rican
national steamship stems from two decrees adopted by the Government of
Costa Rica on 16March 1886. DecreeNo. XXXIof that date provides for
the creation of "a guard, that will depend on the General Treasury
Inspection, which will be stationed at the mouth of the Colorado River,
subject to the provisions of the corresponding la~."'~"he decree further
provides that "this guard will consist of one Commander and five
9,187
guards ...
3.1-34 According to Decree No. XXXII of the same date(15 March 1886), the
customs post "shall have at its disposal a national steamer with its
respective crew made up of a captain-pilot, an engineer, and a stoker and
his helper."'g8 Itstasks were to include the following:
"lS' To prevent contraband in the water and territories of
its circumscriptions.
2" To give the relevant notice and information forthe
persecution of smuggling to the guards in the San Carlos
and Sarapiqui,or the Inspector General, according to the
circumstances.
3rdTO request assistance from the guard of Sarapiqui
and San Carlos and obtain it whenever the Commander of
Colorado deems itnecessary.. ..
5'hTo reconnoitre at least once a week the River San
Juan, Colorado, Sasapiqui and San Carlos; the firstin the
wholeextent that it is navigablefor Costa Rica, the second
in its entire extent,and the latter two along the entire
stretches that are naviguble by steumer.. ..I8' (emphasis
added)
IBb
CRM, Vol.6,Annex205.
I" /bid.
'"CRM, Vol.6,Annex206.
1"41id. I
I",I
3.1.35 On 5 June 1886, the Ministerof Foreign Relationsof Nicaragua, Francisco
Castellbn, sent a note of protest to the Minister of Foreign Relations of
CostaRica, Ascensibn Esquivel, concerning the decree's provision for a
national steamship. MinisterCastellbn, assuming arguendothat the 1 858
Treaty was valid, reminded his counterpart that Article 6 of the 1858
Treaty reserves for Nicaragua the exclusive dominion and sovereign
jurisdiction over the waters of the San Juan, conceding to Costa Rica
nothingmorethan the right to navigate "para objetos de comercio 3,.90
3.1.36 The Costa Rican ForeignMinister responded in a Note of 29 June 1886,
that the decree providing for a national vesselto travel on that part of the
SanJuanRiverthat isnavigableto Costa Ricadoes not impairthe rights of
Nicaragua. He argued that while the 1858 Treaty reserves for Nicaragua
exclusively the dominion and sovereigntyoverthe waters of the SanJuan,
it also allows Costa Ricans to navigate with articles of commerce and
gives the Governmentof Costa Rica:
"...the same navigational tights with all kinds of vessels,
for if it is to fulthe obligations imposed on it [thtreaty]
and which it [Costa Rica] expressly recognizes of
contributing to the custodyanddefence of theriver in case
of external aggression, it is clear that it has the right to
makeuse of the indispensable meansto comply with that
duty. Furthermore, the vessel that is to navigate the San
Juan shalIlimit itself to use the watersof the river to cross
from one to the other Costa Rican river and it shall not
exercise any jurisdictional act over them."'"
INNCM,Annex28,Note fromMinisterof ForeignAffairsofNicaragua,FranciscoCastell~n,to
Ministerof ForeignAffairsofCostahca, AscensibnEsquivel,5June1886.
Ig1CRM,VoI. 3,Annex 31, Note fromtheMinisterof ForeignAffairsof CostaRica,Ascensihn
Esquivel,toMinisterofForeignAffairofNicaragua, Franciscoastellbn,9June 1886.
1153.1.37 Nicaraguan Foreign Minister Castellbn replied to Costa Rican Foreign
Minister AscensibnEsquivel on 3August 1886, stating in relevant part:
"The navigation on San Juan waters of a Costa Rican
national steamship carrying armed forces of that Republic-
the verificationof which this Governmentfinds particularly
surprising- followingmy aforementioned letter 51h~une,is
an outright violation of Nicaragua's sovereign rights,and
cannot be justified by invoking a treaty the yalidity of
which is being questioned, and that even if itwere valid,
would not be authorized except when, in a given case, as
with all alliance, Nicaragua would require Costa Rica to
comply with the rights, stipulated therein, to concur to its
guardand defence.
The President, therefore, demands Your Excellency's
Government withdraw the abovementioned steamship from
the waters ofthe San Juan 13.92
3.1.38 Costa Rican Foreign Minister Esquivel responded to this note from his
Nicaraguan counterparton 31August 1886,inthe followingterms:
"...Costa Rica has the perpetualright to navigate the San
Juan River, or part of it,in accordancewith the treaty: that
itis obliged, and naturally so, to guard anddefend the river,
since it has the use of its waters, and because a part of its
right bank belongs tait, because the river is thecommon
entry for both Republics, and itis in the direct interest of
both to defend it: that, given this obligation, Costa Rica
may use the necessary means tofulfil itand it may, for the
same reason, navigatethe river in any kind of vessels: 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 exercise of its own right: and
"'CRM, Vol. 3,Annex 32,Note from the Ministerof Foreign Affairsof Nicaragua,Francisco
Castellbn,toMinisterof ForeignAffairof CostRica,Ascensi~nEsquivel,3August 1886.
116 that, should the opposite dzckr, Costa Rica would be left
9193
totally defencelessat Nicaragua's will .
3.1.39 Then, as has been seen, on 24 December 1886, the Rornhn-Esquivel-Cruz
Arbitration Convention was signed, containing the aforementioned clause
regarding the suspension of the Costa Rican Decreeof March 16 of that
year providing for the navigation of a national steamship on the San Juan
~iver.
3.1.40 But pending the outcome ofthe arbitration the matter of theCosta Rican
steamship remained unresolved, and on 14 February 1887, Nicaraguan
ForeignMinister JoaquinElizondo addressed a note on the subject to his
Costa Ricancounterpart, statinginpart:
"The decision of the Governmentof CostaRicalast year to
establish a customs post at the mouth of the Colorado
River, as a dependence of the General Inspection Unit of
the Ministry of Finance; to make available to said customs
post a national steamship to carry out reconnaissance at
least once a week on the SanJuan, Colorado and Sarapiqui
rivers; and to establish a village on the left bank of the
second of these riversto be namedIrazu, war precisely the
cause that rekindledthe old border issue between the two
Governments and the debate acquired such proportions
that ifseemed to close the door to a peaceful outcome.It
was this aspect of the debate which led the President of
Guatemalato offer his mediation, which after long debates,
in which the Minister Plenipotentiaryof Costa Rica did not
seem as conciliatingas expected, led to the signing on 24
Decemberof a Convention at the capital of that Republic,
which shall bind the two Contracting Parties, once it has
been ratified, to submit to arbitration the question regarding
193CRM,Vol. 3, Annex 34, NotefromtheMinisterofForeign AffairofCosta Rica, Ascensi6n
Esquivel,to MinistofForeignAffairsoNicaragua ,ranciscCastellon, 1August1885.
194CRM,VoI.6, Annex 206.
117 the validityor nullity of the Treaty of Limits signed in
1858, for which they have appointed the President of the
United States of America as arbitrator."Ig5 (emphasis
added)
3.1.41 The principal i~npetusfor the dispute overthe validityofthe 1858Treaty,
as well as the controversy over Costa Rica's right to navigate on the San
Juan River with publicvessels, including vessels of the revenue service,
thus seems clear. It was the Costa Rican decree of 16 March 1886,
authorizing the use of a national steamship for customs enforcement,
including on the San Juan River, and its When this
dispute could not be resolved through negotiation, it was submitted to
arbitration by the President of the United States. Still, the diplomatic
exchanges continued.
3.1.42 On 21 March 1887,CostaRicanForeign Minister Cleto Gonzilez Viquez
responded to the Nicaraguan note of 14 February,noting the recent
construction of roads in the "fertile" regions the Sarapiqui, San Carlos
and Frio rivers in his country, and laying stress on Costa Rica's concern
with the use of the SanJuan River to smuggle goods into the country that
had arrived at the port of SanJuan delNorte, impairing customs revenues
of Costa Rica. After indicating Costa Rica's interest in exploring the
developmentof the "valuable" areareferred to, hecontinued:
"...[The Government]has the duty to avoid the defalcation
of customs duties derived from smuggling, to impede the
illegal exportation of natural products from those regions
and to objectto the undueimportationthat often takesplace
by those means. It is true that the Government
'" NCM, Annex31. Noteof 14February1887,fromtheMinisteroFForeignAffairsofNicaragua,
JoaquinElizondototheMinisterof ForeignAffairsCostaRica, CletoGonzalezViquez.
I9?RM, Vol.6, Annex206.
118 commissioned Mr. ~l~i&:' through the Ministry of
Finance, to carry out a reconnaissance not of the strategic
points, but ratherof the points whichare moreaccessible
forsmuggling and of thezone in general, on the one hand,
to facilitate industrialactivitand, on the other hand, to
establish customs posts at those locations which provide
greater confidenceto smugglers,"197
CostaRicathus seems ineffect to bearguing,much as it is today, that the
development of her resources justifies the unilateral expansion of her
rightsof navigation in Nicaraguan territory,on the SanJuan River.
3.1.43 On 26 July 1887,less than a year before President Cleveland renderedhis
Award, Nicaragua and Costa Rica signed an agreement by which they
intended to settle the issues pendingbetween them regarding the San Juan
River. Article6.3 of this agreement provided that "[tlhe right granted to
Costa Rica to navigate with articlesof tradeon the San Juan hver, from
its mouth up to 3 English miles below CastillaViejo, does not comprise
the right to navigatewith vessels of war or vessels of the revenue service
exercisingjurisdiction" I" Article 8 of theagreement provided that "the
vessels of the revenue service of Costa Rica which need to protect any
point on the rightbank of the SanJuan which belongsto Costa fica, or on
thepart of the Frio Riverwhich belongsto CostaRica, or need to assist the
established customsposts, maycrossNicaraguan waters as long astheydo
not exercise anyjurisdictional act there~n."'~' That is, they may only use
"Nicaragwan waters" - the San Juan kver - as a means of getting from
point A to point B, both points being on the Costa Ricanbank of the river,
and may not "exercise jurisdiction" thereon, i.e., may not conduct any
197
NCM,Annex32.Noteof2I March1887,fmm theMinisterof ForeignAffairsof CostaRica,
198toGonzQlezViquez,toMinisterofForeignAffairsof Nicaragua,JoaquinElizondo.
CIIM, Vol.2,Annex 15,Carazo- SotoTreaty.
Ibid.
119 official activities suchas stopping a vessel or arresting itsoccupants while
on the river.
3.1.44 This agreement never entered into force; it was ratified by Costa Ricbut
not by Nicaragua. However,it is ofpresent interestfor tworeasons: First,
through its signature and ratification of the agreement, Costa Rica
indicated clearly that it accepted the proposition that Costa Rica's right to
navigate on the SanJuan River with articles of trade "does not comprise
the rightto navigate with vessels of war or vesselof the revenue service
exercising juri~diction."~~~And second, the factthat Nicaragua did not
give her consent to be bound by the agreement may be taken as an
indication that even transit on the river with such vessels, without
exercising anyjurisdiction,was unacceptableto Nicaragua.
3.1.45 Not only are vessels of the revenue service not mentioned in the 1858
Treaty, the ClevelandAward, while permitting CostaRica tonavigate with
such vessels an the SanJuan River, sharplyrestricts and conditions that
right. A careful reading of the Award itself andof its preparatory work
clearly shows that Costa Rica does not possess the rights of navigation
with public vesselsitclaims in herMemorial.
5.The Restrictiveness0fCosta Rica5. Rights to Navigate with Vesselsof
theRevenueService isEvidmt from the Changes madeby Presidenl
Cleveland to theRecommendationsintheSecondPart ofRives'Report
3.1.46 In light ofthepractice that hasjust been reviewed itis clear thatthe right
of Costa Ricato navigateinNicaraguan territory; on the SanJuan River, is
sharply restricted by the 1858 Treaty and that Nicaragua has always
'" CRM,Vol,2, Annex 15.
120 interpreted theTreaty in this way It is therefore surprising to find that
Costa Rica claims virtually unrestricted rights of navigation in her
Memorial. For example, in Chapter 4 of her Memorial, entitled "Costa
Rica'sNavigational and Related Rights", Costa Rica concludesas follows
with regard to her right of navigation under the Treaty on the San Juan
River:
"1) Costa Ricahas a conventionalperpetualright of freenavigation
over the portion of the SanJuanwhere it is a riparian State, and is
entitled to exercise this right without restrictions or
interferen~e."~"
This implication that Costa Rica has an unrestricted right of free
navigation on the San Juan iswithout support either in the 1858Treaty or
in the Cleveland Award. This isevident from both the text of the Treaty
itself and President Cleveland's rejection of recommendations of broader
navigational rightsbased on sourGesoutside the Treaty.
3.1.47 As noted earlier (paragraph 3.1.25), President Cleveland delegated
authorityto George L. Rivesto prepare recommendationsforhis Awardin
the case, as permitted by Article V, paragraph 5,of the 1886 Rom6n-
Esquivel-Cruz Convention of Arbitration. Pursuant to this authorization,
Mr. Rives prepared a reportcomprisedof two parts, corresponding to the
two questions asked of the arbitrator in the Romhn-Esquivel-Cruz
Convention: the first concerned the validityofthe 1858 rea at^* and;the
second concerned navigation by Costa Rica on the San Juan River with
vessels of war and of the revenueservice,as well asthe pointsof doubtful
20CRM, para 4.129.
20NCM,Annex 70.Reportof GeorgeLRives.2March 1888.
121 interpretation203. President Cleveland adopted the first part of Rives'
report as submitted, but made substantial changes to recommendations
made in the second part, adopting positions that were, in essence,
diametrically opposed to Rives' recommendations on key issues. The
changes are reflected in the Secondparagraph of the Clevelandi4ward204.
Since Costa Rica'salleged rightsof navigation by public vessels bear a
striking similarity to the recommendationsby Rives that were rejected by
President Cleveland, those recommendations bearscrutiny.
3.1.48 The Draft award prepared by George L. Rives contains a handwritten
introductorynote which states as follows:
"The foIlowing is the draft award prepared by me and
hande o the President.The corrections appearing thereon
in ink are made by the President, and are all in his own
handwriting. It was returned to me by the President on
99205
March 17'~, 1888. G. L.Rives .
3.1.49 This document clearly shows that Rives presented an Article 2 of the
Award which is very different from that which President Cleveland
corrected by hand and eventually incorporated intohisAward.Its contents
and the changes made by Cleveland provide insight into the different
approachesof - and outcomes reached by -the two individuals.
3.1.50 The approach followed by Rives was similar to that advocated by Costa
Ricain the arbitration- i.e., to assimilate the right to navigate on the San
Juan River to the general right to navigate in the waters of a state's
203NCM, Annex 7 1.Reporby GeorgeL. Rives (Second).
'" CRM, Vol.2,Annex 16.
'05NCM, Annex 72. Draft Awardpreparedby G. L. hves and handed tothe Arbitrator Mr.
Grover Cleveland. March 1888.
122 territorial sea. After examiningthe writings of authoritieson international
law (Hall, Bliintschli, Calvo and Twiss) as well as case law on this point,
Rives concluded that although there was "at least an apparent
contradiction between these authorities,. ..it is understood that civilized
nations at the present day, impose no restriction upon the friendly visit of
foreign men-of-warin time of peace; and this generalusagemaybe saidto
constitutean imperfect right to entitle such vesselto claim hospitality."206
He therefore recommendedto President Cleveland the following answerto
the second questionput to the arbitrator:
"The preliminary question of interpretation as to the right
of navigation of the San Juan by public vessels of Costa
Rrcashould, therefore, in my judgment, be answered by
saying that the vessels of war and of the revenue service
belonging to Costa Rica have the same privilege of
navigating the hver San Juan as are usually accorded in
their territorial waters by civilized nations to the public
vessels of friendly powers in time of peace, - but no other,
or greaterprivileges."207
3.1.51 This conclusion - which, again, suggested rights similar to those being
claimed by Costa Rica today - was radically altered by President
Cleveland in his Award. Rather than searching for a situation that was
analogous to the one established by the 1858 Treaty, President Cleveland
began - and ended - with the treaty itself. This is evidefrom paragraph
Second of his Award, in which he refers, directly or indirectly, to the
Jerez-Caiias Treaty three times. This short but crucial section reads in its
entiretyasfollows:
2MNCM, Annex 71.ReportbyGeorgeL. Rives(Second).
20Ibid,pp.218-2I9of handwritteversion.
123 "The Republic of Costa Rica under said treaty and the
stipulationscontained in the sixth article thereof, has not
the rightof 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 with
her enjoyment of the 'purposes of commerce' accorded to
her in said article, or as may be necessary to the protection
of saidenjoyment."20s
3.1.52 The first reference to the treaty occurs in the first line ("under said
treaty"); the second several words later, when the arbitrator refers t"the
stipulations containedin the sixtharticle"; and the thirin the finalportion
of the section, relatingto vessels of the revenue service, when President
Cleveland clearly ties anyright Costa Ricamay have to navigate with such
vessels to "enjoyment of the 'purposes of commerce' accordedto her in
said article." The importance ascribedby PresidentClevelandto the treaty
was such that, as demonstrated elsewhere in the present Counter-
~e~norial,'~ he took care not to prejudice the meaning of its original
Spanish text by enclosing the phrase, "purposes of commerce" in
quotation marks,thus referringback to the original text.
3.1.53 Thus President Cleveland took an entirely different approach from that
followed by Rives. Since the treaty was valid,and made unmistakably
clear thatthe San Juan was partof Nicaraguan territory, any right Costa
Rica might have to navigate on the river with vessels of the revenue
service would have to find its source inthe treaty;it could nobe separated
from the agreement. In particular, no right of navigation, whether with
public or private vessels, could be disassociated from navigation with
articlesof trade (objetos de comercio). Interestingly, Costa Rica herself
'" RCRM Vol.2,Annex 16.ClevelandAward,sectio"Second"'
lo'SeeChap. 4 paras.4.1.8-4.1betow,
I24 later, in the context of the ~lexander Arbitration, argued that the Treaty
should be interpreted literally: "The principles upon which the language
and intent of treatiesare to be interpreted are well set forth in the Costa
Rican argumentby many quotations from eminentauthors. All concur that
words are to be takenas faras possiblein their firstand simplestmeanings
- 'in theirnatural and obvious sense, according to the general use of the
same words'- 'in the naturaland reasonable senseof terms' - 'inthe usual
sense, and, not in any extraordinary or unused occupation 7.7,210 This
position contradicts Costa Rica's cursentattempts to build an edifice of
rights- to navigate with armed public vessels, re-supply border posts,
carrytourists, etc- on the slenderreed of "articles of commerce."
3.1.54 The language in paragraph Secondof the ClevelandAward is especially
worthyof close attention since the arbitrator substituted it entirelyforthe
proposal made by George Rives for that part of the Award. For President
Cleveland, the only navigation by Costa Rican vessels of the revenue
service that was permitted by the treaty was that which is "related to and
connected with" the rightto navigate with articles of trade. As if to avoid
anypossible misunderstanding,the arbitrator requires that navigationwith
revenue vessels be both (a) "related to" a~td (b) "connected with"
navigation with articles of trade. He thus underscores the inextricable
connection between public revenue vessels and private boats canying
articlesof trade: the twogo together, but only ifthe former are "relatedto
and connectedwith"the latter.
2'0NCM,Annex73. "Award Number 4"of EngineerArbitrator lexander.Also citedinNational
Geographicmagazineby author ArthurP. Davis (Chief Hydrographer,Isthmian Canal
Commission)inhisarticle"LocationoftheBoundarybetweenNicaragua and CostaRica."
125 --
3.1.55 However, the arbitrator also conditions Costa Rica's right to navigate on
the San Juan River with vesseIs of the revenue service upon its being
"necessary to the protection of said enjoyment" (i.e., enjoyment of the
right to navigate with articles of trade). Since Costa Rica was capable of
enforcing her customslaws from her own territory in 1888, and is even
more capable of doing so today, enforcing those laws by patrolling the
river in boats is not "necessary". Indeed, it is difficult to imagine
situations in which navigation on theSanJuan with public vessels of the
revenue servicewould be "necessary".
3.1-56 In sum,for President Cleveland, Costa Rica'sright to navigate on the San
Juan River with vesselsof the revenue service, which was not provided for
by the treaty, could be recognized only to a very limited extenand under
strict conditions. He found that there was an inextricable link between
navigation with vessels of the revenue serviceand navigation with articles
of trade, specifying that navigation with revenue vessels must be "related
to and connected with" navigation with articles of trade. This leaves no
doubt that, for President Cleveland, Costa Rica does not have an
autonomous right of navigation on the San Juan. In further requiringthat
navigation with revenue vessels be "necessary" to the protection of
navigation with articles of tradethearbitrator set thbar very high, since
while protection of such navigation by use of revenue vessels might be
convenient, it would seldom be "necessay". According to President
Cleveland, therefore, therecould be no navigation by Costa Ricanvessels
of the revenue service except in conjunction with the enjoyment of the
right to navigate with articles of trade; and all navigation by revenue
vessels had to be related to and connectedwith Costa Rica's enjoyment of
navigation with articles of trade or necessaryto the protection thereof.
126 8.
3.1.57 It isthus clear that the ClevelandAward does not recognize an objective,
abstract rightof navigation by Costa Rican revenueservice vessels. It is a
right that is activatedonly when certain conditions obtain. Underany other
circumstances, while such navigation might be convenient, "it is not so
necessary an incident to the right of Costa Rica to enforce her customs
laws as to be inevitably implied ex necessitate from the provisions of the
~reaty.'"~ This is only sensible, in view of Nicaragua's exclusive
possession of dominion and supremecontrol of the San Juan,according to
theterms ofthe Treaty.
3.1.58 The followingpoints emergefromthe foregoing analysis:
a. m, neither in the agreement submitting their dispute to
arbitration nor otherwise did the parties request President
Cleveland to determinethe meaningof the phrase, "con objetos de
comercio",and the arbitratordid not purportto do so.
b. Second, taken together, the Cleveland Award and those sections of
the second part of Rives' report that were not in any way
contradicted by the arbitrator make clear that it is the 1858 Treaty
that, firsand foremost, governs the rightsand obligations of the
parties. In his Award, President Cleveland was at pains to apply
the terms of the Treaty, and not to go beyond those terms. This is
amply demonstrated by his repeated references to the Treaty in
paragraph Second of the Award. It is therefore clear that the
211NCM,Annex7 1George L.Rives,Reportto President leveland,(Second), p112of original
handwritteversion.
127 Award mustbe understood in the light of the Treaty, not the other
way around as CostaRica seems to imply.
c. Third, the Treaty makes no mention of vessels of the revenue
service. The question of whether Costa Rica could navigate on the
San Juan River with such vessels thus arose not from the Treaty
itself, but from CostaRica'sunilateral decisionin1886 to navigate
on the San Juan with a national steamship charged with customs
enforcement,in clearand blatant contraventionof the provisions of
theTreaty. It is evidentbeyond any doubt that President Cleveland
was acutely aware of the need not to enlarge Costa Rica's rights of
navigation beyond what was expressly provided forin the Treaty,
except insofar as was strictly necessary under specific
circumstances: President Cleveland rejected a broad right of
navigationproposedby hisdelegate, GeorgeL. Rives, based not on
the Treaty but on an analogy to marine navigational rights;and in
recognizing a limited right to navigate with vessels of the revenue
service under exceptional circumstances President Clevelandmade
clear that there was no such right except to the extent its exercise
was closely "related to and connected with" navigation with
articlesf trade,and except to the extent that navigation with such
vessels was "necessary" under the circumstances. Mere
convenience is not enough to trigger such a right, especially since
under most circumstancescustoms enforcement could takeplace in
Costa Rican territory. It follows that nothing said in either the
Award or Rives' report can be construed to imply a right of Costa
Rica to navigate on the San Juanfor the purpose of re-supplying
border posts: there are no articles of trade involved in such navigation; and it is not nkcessary,sinceitcan be accomplished by
land.
' t,
d. And fourth, in any event, no armed navigation by Costa Rican
vessels is permittedby the Treaty, as interpreted in the Award,
without the priorauthorization of Nicaragua. Not only wdd this
not be necessary, it would fly in the face of President Cleveland's
findingthat Costa Rica "has not the sightof navigation of theriver
SanJuan with vessels ofwar". It is a slipperslope from revenue
vessels to vessels of war. George Rives recognized this, and
President Cleveland was careful in framing his Award to establish
conditions designed to prevent revenue vessels from evolvinginto
warships with liberal accessto Nicaraguan waters. Nor mayCosta
Ricanrevenuevesselsexercise any form ofjurisdiction on the San
Juan, even ifthetwin conditionsof a linkto "objetosde cornercio"
and necessity are established, since this would violate the
jurisdiction and prerogatives retainedbyNicaragua by virtue of her
sovereigntyovertheriver.
Section 3,2
Other DocumentsInvoked by Costa Rica
3.2.1 As shown in Chapter 2 andthepreviousSection of thisChapter, the Jerez-
CaiiasTreaty of Limits of 15 April 1858 is the relevant instrument in the
present dispute. However, other instruments havebeen mentioned in the
Memorialof Costa Rica. It itherefore appropriateto evaluate their legal
significance inthis case.3.2.2 In her Memoviul,Costa Rica has mentioned a number of other texts to
which it seems to confer a legal authority. They can be divided into two
categories:
- somerelate to thejurisdiction of the Courtin thepresent case;
- others are supposed to be relevant on the very substance ofthe case.
3.2.3 The first ones relating tthe jurisdiction of theCourt have been dealt with
in the Introduction of the present ~aunte~-~ernoriu alnd'there is no
needto go backto them.
3.2.4 Costa Ricaalso bases herself on various instruments which more directly
relate to the subject matter of this case, inparticular:
- the Roman-Esquivel-Cruz Convention of 24 December 1886
submitting the question of the validity of the Treaty of 15April 1858
to the arbitrationof the Presidentof the United states213;
-the 191 6Judgment of the CentralAmerican Courtof hstice214;
-the Sevilla -Fournier Agreement concluded pursuant to Article IV of
the 1949Pact of Amity of 9 January 19562'5;
- the"Memorandum of Understanding" of 5 June 1994 between Ehe
Ministers of Tourism of both countries216;
2'2NCMIntroductionp ,ara3.
*I3CRM, p. 18,para.2.32, or p. 20, para.2.38(seepartiareproductionof thisConventionin
CRM, Vol.2,Annex 14andNCM, Annex11).
'I4CRM, p,2,para, li.andespeciallypp. 1-25,paras.2.42-2.49.For theEnglishtranslatofn
theAwardsee 1IA.J.I.L.18 1-229(19171,reproducedinCRM,Vol. 2, Annex2 1.
2'5CRM,p. 2,para.1.04,p.3,para. 1.08p.26,para. 2.52p.72,paras4,70-4.71,pp.88-89,para.
4.121-4.123orp. 133,para. 5.139(seethe partialreproducof thiAgreement inCRM,VoI.,2,
Annex24).
""CRM, p. 33, para.3.20 (seeCRM, Vol. 2, Annexes 25 and26). However,thecontent of this
instrument, whateveits legalnatureshowthatNicaraguahastherightto regulatetourismon the
130 - a Joint-Communiquk issued on 8 September 1995 by the
Commander-in-Chiefof the Armyand the Chief of National Policefor
Nicaragua,and by the Minister of Public Security and a Colonel of the
PoIiceForceonbehalfof CostaFLica2";
- various so-called "understandings" and joint-communiquks of the
yeas 2998'"; or
- another agreed arrangement resulting from an exchange of letters of
28-29 June 2000~'~.
3.2.5 The content and the interpretation of those various instruments will be
discussed in due course inthe present Counter-Memorial.Sufficeit to note
at this stage thatthe legallybinding nature of the 1886Convention and of
the 1954 Agreement, which does nothing more in its Article 1 than to
reaffirm "the termsof the Treaty of 15 April 1858 and its interpretation
given by arbitrationon 22 March 1 888", are notchallenged.
3.2.6 The Judgment of the Central American Court of Justice of 30 September
1916~~'is of limited relevance in the present case. In effect, the action
brought by Costa Rica at the time did not relate to the extent of her
navigational rights, but only, as emphasized by the Court, to "the
conclusion of a treaty between the latter [the Government of the Republic
of Nicaragua] andthe Governmentof the United States of North America,
relating to the construction of an interoceanic cana~*~'. Of course, the
watersof theSanJuande NicaraguaRiverandthatCostaRica wasclearlyconsciousthatshehad
217ightto freenavigationfortourpurposesunderthe I858Treaty.
21RRM, pp.83-84,para.4.104CRM, Vol2, Annex27.
CRM, pp.34-35 para.3.23,p.37, para.3.31 or 130,paras5.129-5.130(seeCRM, Vol. 2,
Annexes 28,49,50 and51,and134,141or144).
2'gCRM, p.40,para.3.38.Also CRhdVol. 3, Annexes64and65.
220CRM, Vol.2, Annex21.
22k~, hex 21,p.122.
131 Central American Court had to take into account the relevant legal
instruments in orderto ascertainthe effect and impact of the Bryan-
Chamorro rea a t^^t^e^e instruments. Therefore, the f858 Treaty and
the 1888Cleveland Award "serve[d] as a guide to th[e] ~ourt"~" in order
to establish the applicable legal re-ibut nothing more.The Judgment
did not establish any new rights or obligations for Costa RicaorNicaragua
concerningthe SanJuan River. Costa Rica seems to acceptthis fact:inher
Memorialreference tothe 1916 Judgment is madeonly in order to submit
that it reaffirmed the rights recognized by 1858 Treatyas interpreted
by the 1888Cleveland ward^^ ^y.no means did the Central American
Court's Judgment furtherspecify the rights recognized by the relevant
instruments, i.e. the 1858Treaty and the Cleveland Award, or create any
newrights for the ~arties~*~.
3.2.7 The legally binding nature of the other documentson which Costa Rica
bases herself ishowever even moredubious.
3.2.8 Thus, the "Memorandum of Understanding" signed by the Ministers of
Tourism of Costa Rica and Nicaragua, Carlos Roesch and Fernando
Guzman, at Barradel Colorado on 5 June 1994 can certainlynot be
defined as "treaties" withinthe usual meaning of the word in public
international law:
*ICRM,Vol 2,Annex20.
*Ilbid. 160.
*lcRM, p.80, para.4.96and&Ipara.4.98.
NCM,Annex 47.NotebyMinisterTovarof 5December2004 (DM-566-04).
132 -they have been signed by the Ministersof Tourism, not by authorities
which, "in virtue oftheir functions (..) are considered as representing
their State"without havingto produce full powers;
- they do not provide for their transmission to the Secretariat of the
United Nations for registration and publication, and have not been
transmittedby either country to that effect;
- they have not been subject to any formality for formal adoption or
incorporation into the legalorder of either State;and
- their drafting clearly shows that it was not the purpose of the
signatories to legally bind their respective States; expressions like:
"They will endeavour...", the Ministers (not the States as such)
express their "willingness to cooperate" or "to offer [their] assistance"
or "their commitment to participate in and cooperate with the efforts
of...","Both Ministers will take all the steps they consider necessary
for.." or "expressed[22"their whole hearted intention,. .",the Ministers
"agree to seekout and implement all the mechanisms at their disposal
77227
in order to promote...", endeavour"insofar as itis possible ,etc.,
are telling in this respect.
3.2-9 Indeed this is not a terminology that implies the creation of "rights and
obligations in international law for the Those instruments
constituted at best"gentlemen's agreements" withoutbinding force for the
signatories. This conclusion holdstrue afortiori with respect to the Joint-
Communique of 8 September 1995 (the so-called "Cuadra-Castro
226
TheSpanishoriginaltextisinthe presen(munifiestun)notthe pasttense(expressed).
227CRM,Vol. 2,Annexes25and26.
"' Cf. ICJ,Judgment, 1July 1994, Murifime Delimilationand TerritorialQuestionsbetween
Qafar and Bahrain,ICJ Reporis 1994,p. 121,para.25; see also:Judgment,19 December1978,
AegeanSea ContinentalShelJ[;CJReports1978,p. 39,para.96,orp. 44,para.107.
133 Agreement"), which is nothing more than a commitmentto cooperate229,
devoid of any particular legal significance, and the 1998 so-called
"agreements" invoked by Costa Rica.
3.2.10 In the first place, it will be immediately apparent that, concerning the
latter, there is simply no basis for alleging that the high level contacts
between authorities of the two States 'were perceived'to have given rise
to "an understanding reached on 16 July 1998"230B . y itself this drafting
denotes embarrassment on the part of Costa Rica - and for good reason:
the Costa &can side is incapableof even giving a text or a precise content
to this alleged "understanding'" whose sole evidence issupposed to be
found in a press article published in the Costa Rican newspaper La
Nacidn, which by no means mentions any kind of agreement - and even
the unilateral declarations quoted from officials of both side do not
coincide23'.
3.2.11 The Cuadra-LizanoJoint-CornmuniquCwas signedon 30July 1998 by the
Minister of Defence of Nicaragua and the Minister of Government, Police
and Public Security of Costa Rica. The wording used in this instrument
resembles that of an agreementbut certainly not a self-executing one since
it was conditioned on the adoption of "operational mechanics ...in a
subsequent meeting of senior officers from the Nicaraguan military
authorities and the Costa Rican police forceH2". However, again, the
signatories are not national authorities who "in,virtue of their functions
(...)are considered as representing their State" at the international level
-
229See CRM, Vol. 2,Annex 27.
130CRM,p. 34,para.3.23.
*-""Prohibition LifteLn,Nucibn,SanJosl, 17July 1998- original Spanitextnotprovided by
Costa Rica; CRM, Vol. 5Annex 134.
232CRM, Vol.2,Annex 28,thirdpoint,para.3;seealsVol. 5,AM~X 143,p.656.
134 and it was not contemplated that the "agreement" be communicated to the
Secretariat of the United Nations for registration and publication. In any
case, if iwas anything more thanjust ajoint communiqu$, it was declared
"legally null and void and non-existent" ("'juridicamentenulo e
inaistente") by the Government of Nicaragua, as was explained by the
Nicaraguan acting Minister of Foreign Affairs in a letter to the Costa
RicanMinister of Foreign Affairs and Worshipof 11August 199~~~~.
3.2.12 As explained in that letter, the reason for this was that this agreement
could be seen as contravening the constitutionaf requirements in force in
Nicaragua. Not only was it signed by authorities not vested with treaty
making powers234b ,ut also, afterdue analysis, it appeared that it could
infringe the national sovereigntyof ~icara~ua~~~ T.he National Assembly
of Nicaragua considered that said agreement could be "harmful to the
national sovereignty of the Nicaraguan territory, clearly established in the
Jerez-CafiasTreaty, the ClevelandAward and consecrated in our Political
~onstitution"~~~ and approved the Decision of the Foreign Minister to
declare null and void the Joint-CornmuniquC.Moreover, in accordance
with Article 138 (12) of the Constitution, it belongs to the National
Assembly "To approve or reject allinternational treaties, conventions,
233CRM,Vol. 3,Annex44.
234NCM, Annex55. Article 150of the Political Constitutionof Nicaof 1987 asmodified in
1995, which provides"The President of the Republhas the following powers... 8To direct
the international relaofothe Republic.Tonegotiate,enterinand signtreaties,conventionsor
agreements and other instruments set forth in subparagraph 12) of Article 138of the Political
Constitutiotobe ratifiedby theNationalAssembly".
235NCM, Annex 65. Political Constitutionof Nicaragua, ArticIe 1: "Independence, sovereignty
and nationalself-determinatioare irrevocable rights of the peoand the foundationof the
Nicaraguan nation." In conformity with Article 182,'The Political Constitution is the
fundamentallaw of the Republic;all other laws will be subordinateto it. No law, order, treaty or
other arrangement that opposesor alterstheConstitwit1be valid."
236NCM, Annex68. Resolutionof the Republic ofNicaragua N'ational Assemblon the Join-
CornmuniquiCuadra - Lizano,30July 1498.Ordinary Sessio# 5. Managua, 18August1948.
135 pacts,agreements and contracts covering economic, internationaltrade,
regional integration, defense and security; those which increase the
external debtorcommit the credit of the nation and those that constitute an
obligation tothe internal legal orderof . In any case, itwas
certainlywithin the powers of Nicaragua not approvethis "agreement".
3.2.13 Finally, it must be noted that, contrary to what Costa Rica seems to
the exchange of lettersof 28-29 June 2000'~~can certainly not be
analysed as a binding agreement between the Parties. As noted in the
subsequent letter of the President of Costa Rica to his Nicaraguan
counterpart on 29 July 2000~~'these were pure "demonstrations of
willingness" C"mun(festacione dsevoletntad')which proved impossible to
be put in practice and, in his letter of 3 August ~ouo~ n 'urn, the
President of Nicaragua reiterated that such an arrangemenrequired "the
concurrence of other Powers of the State, in accordance witour internal
legislation"("concurso de otrosPoderes del Estado, en consonuncia covl
nuestra legislacidinternu").
3.2,14 It canhowever be notedthat throughouttheir exchange of correspondence
in the year ~ooo ~oth~H,eads of Statesmade extremelyclear that the
Treaty of Limits af 1858 and the award o1888 were "the instruments that
23NCM,Annex 55.
'jCRM, p.40,para.3.38.
240YCM, V01.3 ,nnex64 and 65.
CRM, Vol.3, Anne66.
'4CRM, Vol. 3,Annex67.
'42SeeCRM, Vol. 3Annexes64to 67. define the legal framework for the respective rights" 243 of both Parties,
and "that since1888 nothing has occurred to changethis legal
Section 3.3
General International Law
3.3.1 At the same time, these statements make crystal clear that general
internationallaw only plays anancillary role in the present dispute.
3.3.2 It must however be noted that, while in principle acknowledging that the
1858Treaty of Limits as interpretedby the ClevelandAward applies in the
present case, Costa Rica endeavours to qualify this acquiescence and to
limit this application.She does so in particular in an "Appendix A" 245
appended to her Memorial, where it explains at some length that, as an
"international river", the San Juan River is subjectto the application of
"international law rules relative to navigation on international
3.3.3 In a very wide perspective, Nicaraguacan accept that, since "the notion of
the 'course of [a] river' covers a range of possibilities: a boundary on
eitherbank or a boundary somewhere within the river"247,the San Juan
river, the right bank of which belongs to Costa ha, includes an
international element. However, Costa Rica does not challenge that the
CRM,Vol. 3,Annex 65.Letterof thePresideof Nicaraguto thePresidenofCosta Rica29
June2000.
244CRM,Vol. 3,Annex66. Letteofthe Presidentof CostaRictothePresidentofNicaragua,29
July2000.
245CRM, pp. 149-157.Theveryfact thatthispointis developednot intheMemorialitselfbutin
anAppendix shows thediscomforotf Costahca withthisdubiousargument.
24"~, p. 155,para.A19.
247ICJ,ChamberJ,udgmentof 12July2005,FrantierDispute (BenidNiger),para.72.
137 river itself entirely belongs to Nicaragua: "Costa Rica at all times since the
entry into force of the Treaty of Limits has recognised that the northern
bank, the waters and the bed of the San Juan belong to ~icara~ua"*~~. In
this respect, the San Juan indisputably is a Nicaraguan nationalriver to
which Nicaragua's full sovereignty applies, with the only limitations
provided for in the 1858 Treaty of Limits. In other words, the basic
principle of international law which applies in the present case is the
territorial sovereigntof Nicaragua on the waters and the bed of the river.
3.3.4 The decisive element is that "therights and obligations of both riparian
States with regard to the San Juan are specifically regulated by
international that is the Jerez-Caiias Treaty of 185 8 and
the Cleveland Award. In this measure only, the right of territorial
sovereignty belonging to Nicaragua over the San Juanriver "is not
absolute, but is subject to the restrictions imposed by the treaty itself'2-Q
and bythat Treaty only.
3.3.5 It cannot therefore be accepted that "general international law rules
relativeto navigation on international waterways are also applicable"25'.
Once again, theapplicableprinciple of generalinternational law is that of
Nicaragua's territorial sovereignty, with the restrictions provided in the
Treatyof Limits.
3.3.6 The situationisquite different from that prevailing in thecase concerning
the TerrilovialJurisdictionof the InternationalCornmissionof the River
CCRM p,. 149para.A4.
24'~~~, p. 152,paraA9.
"O CRM, Vol.2, Annex 2 1,p. 160.Central AmericanCourtof Justice, 30 September 1916,
Opinionand Decisionof theCourt.
25'CRM, p. 155,para.,419.
138 Oderbefore the PCIJ~~'I .n the firstplace, the Oder River was, without any
restriction, a truly internationriver and was declared such by Article33 1
of the Treaty of Versailles. And, in the second place, the Court found a
coPlfirmationof this character ingeneral international law2? While, in the
present instance, ArticleVE of theTreaty of Limits very clearIy proclaims
that "[tlhe Republic of Nicaraguashall have exclusive dominion and
supremecontrol of the waters of the river San Juan from its outlet fromthe
lakeuntil itempties into the ~tlantic"~~~t;he remaining part of this Article
provides for the exceptions to thisprinciple, that is, "free navigation", not
in general, but "with articles of trade [con sbjetos de comercio]"
exc~usivel~~~~.
Consequently, whether the Treaty expands or limits the rights and
obligations belongingrespectively toone or the other riparian State under
general international lawdoes not matter: the law applicable to the present
dispute is not the general international law concerning navigational rights
on international waterwaysbut the legal consequences stemming fromthe
cardinal principleof the Nicaraguan territorial sovereignty overthe waters
andthe bed of the San Juan River with the exception of the limited rights
of navigation overthe river conferred to Costa Rica by the 1858 Treaty of
Limits.
252SeeCRM, p. 151para.A8, orpp.155-156,para.A20.
lS3PCIJ, Judgment,10 September1929: "The actual wording ofArticle 331 shows that
internationalizatis subjectto two conditions:the waterwaymust be navigableand must
naturallyprovideanaccesstothesea.Thesearethetwocharacteristic s..by whicha distinction
has fora long whilebeen madebetweenthe so-calledinternationarliversandnationalrivers".
(SerieA, No 23,p.25 -italicsadded).
254CRM, Vol. 2,Annex 7,pp.54-60. Jerez-Caiis reaty15 April1858.
25"~ra fullerdiscussioofthispointsee belowNCM, Chap.2,para.2.1.63,passim.
1393.3.8 hlutuiis rnutandis, this situation may be compared with that of a right of
passage of States on the territory, or within the territorial sea, or in an
international canal in the territory of another State. As the Permanent
Court noted in the Wimbledoncase: ". . the factremainsthat Germany has
to submit to an important kimitationof the exerciseof the sovereign rights
which no one dispute she possesses over the Kiel Canal. This fact
constitutes a sufficient reasonfor the restrictive interpretation in case of
doubt, of the clause which produces such a limitation"*'! Similarly in the
present case, "[tlhe Court is here dealing with a concrete case having
special features"257resulting from the right of navigation recognizedto
Costa Rica on the San River by the Jerez-CaiiasTreaty. This right,
although strictly qualified, limits the exerciseby Nicaragua of the rights
deriving from her territorial sovereignty over the river, calling for a
restrictive interpretationin case ofdoubt asto its extent and scope25s.
3.3.9 Under these conditions, Costa Rica is not entitled to invoke, as it
abundantly does25Yp ,rovisions of other treaties concerning other rivers.
"[Tjhese arguments, drawn from independent provisions and diplomatic
negotiations, cannot modify the conclusion which [can be] reached by
means of a direct interpretation of the provisions applicable in the
particular case...326. The questions raised by the Parties in the present
**"udgmentof 17August 1423,SeriesA,No 1,p.24.
257ICJ,Judgment, 12April1960,RightofPass~ge overIndianTer-rdfo,yU Reports1960,p.44.
258Seealsoibid.pp.45-46;formorecomments, seeabove,Chap.2,para.2.1.65-2.1.66.
259See e.g.CRM, pp. 151-152,paras. A8-A10,p.153,para.A13, pp. 153-154paras.A15-A16,
YE 1.5-156,para.A20.
PCIJ, Judgment,10September 1929, TerritorialJurisdiction oInternational Commission
of theRiver OderSeriesA,No 23,p.30.
140 case mustbe determined solely by the interpretation and applicatioof the
1858Treaty of ~irnitsl~l.
3.3.19 This, of course,does not mean that other norms and principks of general
international law do not apply. Indeed, relevant rules of general
international, and especially "secondary" rules of international law, do
apply as far as they do not contradict the relevant provisionscontained in
the 1858Treatyas interpretedby the 1888Cleveland Award.Therefore,it
will be apparent that general international law applies to incidental
questions,not to the core issuesof the case.
3.3.11 Inthe present Chapter, Nicaragua hasshown that:
(1) The 1858Treaty and the ClevelandAwardare the only instruments
relevant forestablishingthe situationof the SanJuan River.
(2) Other instruments invoked by Costa Rica, are of little or no
relevance in the present case since they are either not legally
binding upon the Parties or bear upon different subject matters.
(3) Similarly,the general rules and principlesrelatingtointernational
rivers do not apply as they are set aside by the precise and
comprehensive rulesprovided for in the 1858Treaty as interpreted
by the ClevelandAward; and
See PCTJJ,udgment,28June1937,The Diversioof Watefrom theMeuse,SeriesAIBN,o 70,
p.16.
141(4)Theotherrules and principlesof general internationallacan only
play a rolein the presentcase inasmuch as they do not contradict
these instruments. CHAPTER 4
NICARAGUA HAS NOT BREACHED COSTA RLCA'S TMATY RIGHT
OFNAVIGATION
Section4.1
Costa Rica's Right of Free Navigationunder theJerez -CafiasTreaty
4.1.1 Let usrecall againthe provisions of Article VI in the JerezTreaty:
"The Republicof Nicaragua shall have exclusive dominion
and supreme control of the watersof the river San Juan
from its outlet from the lake until it empties into the
Atlantic; but the Republic of Costa Rica shall have
perpetual rights, in the said waters; of free navigation from
river's mouth to three English milbelow Castillo Viejo
for thepurposes of commerce (con objetos de cornercio),
whether with Nicaragua Nicaragua or to the interior of
CostaRica, by way of the rivers San Carlosor Sarapiquior
any other route proceeding from the tract on the shores of
San Juan that may be established as belonging to this
Republic. The vessels of both countries may
indiscriminately approach the shores (atracar)theriver
where the navigation is common to both, without the
collection of any class of impost unless so establibyed
thetwo ~ovemments."~~~
4.1.2 There is no controversy as to the geographical area where Costa Rica
enjoys her right of free navigawith articles of trade. The Parties agree
thatsuch right may only be exercised in the partof the San Juan de
NicaraguaRiver comprised fromits mouthin the Atlantic to a point three
16CRM, Vo1.2, Anne7,p.57.SeeNCMIntroductionpara.4.
143 English miles below Castillo~iejo*~~T . hus, Nicaragua will not dwell
uponthat point.
4.1.3 However,based on ArticleVI of theJerez-Caiias Treatyof Limits,Costa
Rica claims to have an unlimited, autonomous and absolute right to
navigate thatsector of the San Juan de Nicaragua River, asserting that
Nicaragua violatestheTreaty by impedingCostaRica's exercise of this
right. The Mmurial goes as faras affirming that "anylimitatii omnposed
uponnavigatio tnat byrightisTree'constitutesadenia ofthat righ "2.4
4.1.4 Nicaragua entirely rejectboththe premiseand its conclusion. Costa Rica,
througha self servinginterpretation of ArticleVI, has cometo theCourt
seeking to obtain by adjudication what she has been unable to achieve
through negotiations, that is, a revision of the Treatyandof the Cleveland
Award.
4.1.5 WhenevaluatingCosta Rica's many claims of navigational and related
rights on the San Juan de Nicaragua River, it is important to bear in mind
certain fundamentalpoints:
a. First,the Jerez-Caiias Treaty isa single undertaking thatmust be
read in its entirety. It effected a quid pro quo: Nicaragua
relinquishedtheNicoyalGuanacasteregion and the Colorado River
to Costa Rica in exchange for Costa Rica's recognition of full
sovereignty ofNicaraguaover theSanJuan River, subject only to a
243SeeCRM, para.4.02:'Therisnodisputebetweenthepartiesas thegeographicalscope of
the rightsof navigationrecogniztoCosta Rica by theTreatyof LimitsSee Note of the
Ministryof ForeignAffairsof CostaRicaof August1998,CRM,Yol. 3,Annex 50;Notes of
thePresidenof CostaRicaof 2Juneand 24July2900,CRM, Vol.3,hexes 64and 65.
2" CRM, para.4.09.
144 narrowly-defined right of navigation by Costa Rica with artiofes
trade.
b. Second, to ensure that the exchange was fair andthat Nicaragua
would have full competence to arrange for the construction and
operation of an inter-oceaniroute,the 1858 Treaty provided that
the border between thetwo countries would follow the right bank
of theSan Juan River up to a point three miles downstream of
Castillo Viejo, leaving the entire river in Nicaraguan territory and
subject to her full sovereignty (Article 11);it also stressed that
Nicaragua had "exclusive dominion and supreme control"
("exclusivameratel dominio y sumo impsrio")over the waters of
the San Jum (Article VI). Given that the river is part of
Nicaraguan territoryand as such is subject to her sovereignty, the
recognition that Nicaragua enjoys "exclusive dominion and
supreme control" over it serves chiefly to emphasize the very
limited nature of any rights that could be enjoyed by Costa Rica
and that these must be consistent with Nicaragua's sovereignty.
This is particularly true since Costa Rica's right to navigate with
articles of trade is provided finthe same article of the Treaty
that stresses Nicaragua's "exclusive dominion and supreme
control" over the waters of theriver. It is altrue,afortiori, of
the panoplyof rights allegedby CostaRica to navigate on theSan
Juan with public, armed vessels, in contravention of Nicaragua's
"exclusive dominion and supreme control" over the waters of the
river.
c. And thir sdn,eatleastthe 1880s,Costa Rica has been attempting
to enlarge the clearly circumscribed rights accordedto her under the I858 Treatyto navigate on the San Juan de Nicaragua ~iver.~'~
Ithas in effect acted as if the boundary lay in the river rather than
on its right bank. Whilethis may be the more usual situation with
regard to international watercourses generally, as Costa Rica
stre~ses,~" "~he were good reasons for delimiting the boundary
between Nicaragua and Costa Rica in this way, as has been seen.
From the beginning, Nicasagua has protested Costa Rica's efforts
toincrease the navigational rights grantedby the 1858Treaty. For
example, on 5 June 1886, Nicaragua's Ministerof Foreign Affairs
wrote to his Costa Rican counterpart that the Costa Rican
"government's disposition that a national steamer navigate the
waters of the San Juan authorizes an act not granted by [the 18581
treaty, which in Article6 reserves for this Republic, exclusively,
the dominion and sovereignty over its waters, conceding to Costa
Rica nothing more than free navigation,with articlesof trade ...3267
Yet some one hundred fiftyyears after the conclusion of the Jerez-
Caiias Treaty Costa Rica still seems to have great difficulty in
accepting Nicaragua's sovereignty overthe entire river. This is
seen not only in the repeated attempts to enlarge her navigational
rights but also instatements in theMemorial such as the following
one, referring to delimitations in which the border follows one
bank of a contiguous watercourse as in the case of the San Juan:
"The general drawbacks of this method of delimitation are such
that in some cases, States agreed to modify such early
delimitations, to replace them with the fhalweg or the median
165See thediscussionof theincident (above inChap.paras.3.1.33-3.1.45)in 1886involving
navigationyCostaRicaonthe SanJuan Riverwithanationalcustomssteamship.
2M CRM, Vol. ,Appendix A, paraA5.
2" NCM Vol. 3Annex 28.Noteof 5 June1886.
146 y.ft,lb
line."268 Be this as it may, there is no ground for such a
modification of the boundary as delimited by the 1858 Treaty;
indeed, the circumstances resulting in the delimitation of the
boundary between the two countries in the way it was agreed have
notchanged in any way.
4.1.6 In the foregoing chapter ithas been established that Costa Rica's right of
free navigation, according to Article VI of the Jerez-CafiasTreaty, can
only be conceived and exercised in the natural and inevitable framework
of the sovereignty that corresponds to Nicaragua over the entire
watercourse and her exclusive "dominion and supremecontrol" over the
SanJuanRiverinthe terms usedinthe sameprovision.
4.1.7 The purpose of this section is to further highlight that this right of free
navigation is limited fiorna material standpoint. It ia right of navigation
"with articlesof trade"through the rivers situatedon its right bank, which
appertainto thisRepublic.
A. A RIGHT OF FREE NAVIGATION Y,ES,BUT WITH ARTICLES OF TRADE
4.1.8 In herMemorial,Costa Ricaattemptsto blow up the "perpetual right of
freenavigation" witharticles of trade accorded her in Article VI of the
1858 Treaty through references to inapposite international instruments.26g
"Freedom of navigation" cannot have an objective, autonomous meaning
that overrides specificlimitations on navigational rights providedfor inthe
same provision that grants rights of free of navigation. Yet this is what
Costa Ricain effect argues by focusing on the Treaty's grant of the right
26"~, Vol. 1,AppendixA,para.A5.
26k~, paras.4.13-4.16.
147 of free navigation and ignoring the accompanyingrestriction of that right
to navigation with articlesof trade.
4.1.9 The language of Article VI relating to "freedom of navigation" that is
relevant for present purposes reads as follows: "The Republic of
Nicaragua shall have exclusive dominion and supreme control of the
waters of the river SanJuan ...;but the Republic of CostaRica shall have
perpetual rights, in the said water; of free navigation [con objetos de
comercio] ....727. Itis the latter restriction- that navigation can only be
"with articles of trade" - that Costa Rica conveniently leaves out, in her
overalIconception of her navigational tights.
4.1.10 In an effort to bolster herargument, the effect of which is that her rights of
navigation on the San Juan are virtually unrestricted, Costa Rica cites
various definitions of "free" and "freedom of navigation'".Afterquoting
definitions of the adjective "free" from contemporary dictionaries, Costa
Rica reaches the breathtaking conclusion that: "It follows that any
limitation imposed upon navigation that by right is 'free' constitutes a
denial of that right."27' This may be true of a general right of free
navigationthat is subjectto no restrictions in the instrument creatingit. It
is quite another matter when the'right granted isitself a limited one, as is
the case of Costa kca's right unber Article VI. Thus Costa Rica's
interpretation not only takes the grant of "free navigation" entirely out of
270CRM,Vol.2, Annex 7, p. 57.
271 CRM, para. 4.09. That the word "free" does not necessarily connote an absolute and
unrestrictedrighthasbeenrecognizedby the Costa RicaSupremeCourt in a decision interpreting
the expression "freedomof commerce" in Article 46 of Costa hca's Constimtion. The Court
declared:"The exerciseof the freedoms establisindthe Constimtionis not absolute may be
subject to replation and even restrictions." The Court later stat'The freedom of trade,
consecratedinArticle46 of the Constitution,is not a subjectiveright ofanunrestrictedor absolute
charactergiven that, like laws,it is subjectto reguIatiorlimitationsof general intere..".
WCM, Annex 64).
148 ,.-,ri3~;?
the context by focusing exclusively on a part of the right ('Tree
navigation" vs. "free navigation ...with articles of trade"); but also
detaches it fromthe greatercontext of thesovereign rightsof Nicaragua in
herriver,out of whichthe limited right of free navigation with articles of
trade is ekedout. The doctrinaland practical differencebetween a right of
'Tree navigation" and a right to navigate only with articles of trade
emergesclearly from an examination of the very sources cited by Costa
Rica on the meaning of "freedom of navigation".
4.1.11 The first of these is thejudgment of the Permanent Court of International
Justice in the Oscar Chinncase.272Thatcase involved a British citizen,
Oscar Chinn, who in 1929established a river transport and ship-building
and repairingcompany in what was then the BelgianCongo. Asthe Court
pointed out, the U.K. "never contended that the impugnedmeasures
[adopted by the Colony] constituted an obstacle to the movement of
vessels,"273only that they produced a "cd fe ctomonopoly"274 in favorof a
company controlledby Belgium. Thus,freedomof navigation, per se, was
not before the Court. Howeverthe Court did, in passing, address the
meaning of this concept under the provisions of the 1919 Convention of
saint-~ermain-en-~ad~~, which is no longer valid,276that dealt with
navigation on the Congo River. Inthe passage quoted by Costa Rica, the
Court stated: "According to the conception universallyaccepted, the
freedomof navigation referredto by the Convention comprisesfreedom of
movement for vessels, freedom to enter ports, and to make use of plant
27judgmentof 12Dec. 1934,GreatBritaidBelgium, PCIJ,SeAB, No. 63, Ser.C,No. 75.
27Ibid p.83
27Ibid.p.81.
275~onventioof Saint-Germain-en-Lay1,0Sept.1919,Martens3* ser.p.691.
27BSee, e.g., StrategiesforCrimePreventionandControl;,Particularlyin UrbanAreas and in the
Contextof PublicSecurity,Measureto PreventTrafficlung in ChilReportof the Secretaq-
General,para.60, U.N.DOCE,ICN1511997112 28 Feb1997.
149 and docks, to load and unload goods and to transport goods and
passengers."2T7It willbe recalled that thisdefinition referredto navigation
by vessels of European powerson the rivers of a colony. Their right to
navigate was subject to no restriction akin to the one involved in this case
and again, importantly, the riversinvolved were those of colonies, not
sovereign states.278 Thus the difficulty with using sweeping definitions
like the one in Oscar Chiplnis that they do not take into account the
relevantcontext or specific restrictions provided for by treaty. Further
evidence of the latter is the Permanent Court's inclusion in its broad
definition of "freedom of navigation" the freedom "to transport.. .
passengers" - something that would never have been agreed to by a
Nicaraguan Government well aware that the most lucrative use of the
kver for Nicaragua was the transport of passengers, as attested by the
contracts for this purpose detailedin Chapter 1,Section 3 above, and ever
mindful of the need to have exclusive authority over the transportof
passengers on theSan Juaninorder to concludeagreements relating tothe
prospective inter-oceanic route. When read against the background of
these historical facts and of the 1858Treaty's restriction of Costa Rica's
rights to navigationwith articleof lade, what the Permanent Court had to
say about freedom of navigation was not at allinconsistent withthe rights
under the 1858 Treaty enjoyed by Costa kcan vesselscarrying articles of
trade. However, the PermanentCourt'sdefinition cannot be read - as
Costa Rica purports that this Court should da - to enlarge Costa Rica's
navigational rightsbeyond those grantedby the 1858Treaty.
277CRM,para.4.13, Oscar Chinn,Judgment, CIJ,SeriesME, N 63(19341,83.
'''Thisfactis broughthomeby ArticlI of the 188Act of Berlinconcerningfreedomof trade,
whichis incorporated inthe Conventionof Saint-Gemin by Articte 1 thereof,and whichis
subjectto the following "reservatioarticulatedin its last paragraph:"...in the territories
belongingto an independentsovereignStatethis principle[of freedomof trade]shall obey
applicableinsofaras itis approvedby suchState."Conventionof Saint-Germain-en -0Laye,
Sept. 1919Martens,3"'serp. 641.
E504.1.12 The second source cited by Costa Rica on the meaning of "freedom of
navigation" is Article XIV of the well known Helsinki Rules on the Uses
of the Waters of International Rivers, adopted by the International Law
Association in 1 966.279 This definition, of "free navigation", broadly
follows that of the Permanent Courtin the Oscar Chinncase, by which it
was inspired.280Its use to interpret Costa Rica's rights of navigation on
the San Juan River accordinglysuffers from the same problems identified
in the preceding paragraph with respect to Oscur Chirzrz: it is a general
definitionwhich is subject to derogation by a la specialis, in this case, the
1858Treaty. The only vessels entitled to such "free navigation" are those
carrying artides of trade. Therefore, as with the definition of the
Permanent Court in Oscar Chinn, the reference in the Helsinki Rules to
the "freedom to transport.. .passengers" must give way to the specific
provisionsof the Jerez-CaiiasTreaty. Costa Rica enjoys the rights of "free
navigation" identified,but only asto boats carryingarticlesof trade.
4.1.13 Whilst dealing with the Helsinki Rules it is useful to recall one of its
provisions which is not quotedby Costa Rica:
"The rules stated in this Chapter are not applicable to the
navigation of vessels of war or of vessels performing police
or administrative functions, or, in general, exercising any
other formofpublicauth~rity."~~'
This rule would presumably exclude navigation by the vessels of the
revenue service which the Cleveland Award permitted under carefully
279Internationl awAssociation,ReportoftheFiji;-SecondConference,Helsinki1966,p. 484,
atp.507(1466).
Ibid .,ticleXIV,Commend ,tp. 598quotingfrom OscarChilzn.
IsIbid.Art.XIX.
151 defined circumstances, and would clearly prohibit navigation by boats
usedto re-supplyborderposts and to transport personnelto and from those
posts. The quoted provision has a counterpart in the updated version of
the Helsinki Rules, the so-called "Berlin Rules" of 2004, and entitled
"Exclusion of Public Vessels." That provision reads: "Freedom of
navigation doesnot applyto the navigationof warships or of a government
vessel used for non-commercial purposes except by agreement of the
States concerned. "2p2 Thus, this respected effort at codificati~n~~"
indicates that publicvessels enjoy no right to freedomof navigation under
general principles of international law. As has been seen (Chapter 1,
Section 3, above), Costa Rica also has no such right under the 1858
Treaty. Thus even theauthorities cited by Costa Rica serveto emphasize
that Costa Ricahas no rights of navigation on the San Juan with any kind
of public vessel exceptthose mentioned in the Secondpart of theclispositg'
in the Cleveland Award, and only under the very limited circumstances
spelled out there.
4,l.14 Aftersetting forth the passages from Oscar Chinn and the HelsinkiRules
just referred to, CostRica concludes: "Clearly, a broad interpretation has
been adopted."284 This statement is typicaof Costa Rica's tactic of over-
generalization; it is of little assistance to the Court in the present case. In
fact, careful examination of Latin American practice and doctrine have
concluded that there is no generalright of freedom of navigation in that
region, in the absence of special agreement. Thus Lucius Caflisch, inhis
'" Berlin Rules on Water Resources, Art. 48, InternationalLaw Association, Berlin Conference
(2004),availableat http:/lwww.asil.org/iliblWater Rceposs~10D0e.emder2006.
2X3For example,Costa Rica claims "general internatlaw"lstatus for Article XI11of the
HelsinkiRulesCRM, Appendix A,para,21
28CRM,para. 4.15.
152 Haguecourse,afterreviewing ~iiinAmericantreaties,doctrine,andcases,
includingthewell-knownFcabercase,28'concludesas follows:
"La sentence arbitraleen l'affaireFuber met en relief
l'opposition entre la doctrine de la libre navigation,
crkationde1'Europe duXIXessitcle,etlaconceptionlatino-
amkricaineq , uifaitdbpendre lanavigationdelavolonttde
I'Etat riverain ou des Etats riverain. Cette
conception...consistaiti limiterla libre navigation aux
trajetssans transbordemenv ters la merou en provenance
de celle-ci.
La doctrine,quant elle, semble Apeu pres unanime:en
Ameriquelatine,il n'existepas de libertk de navigation en
l'absence de concession milaterale ou de disposition
con~entionnelle."~~~
4.1.15 Even if itis acceptedthat "a broadinterpretation" of the principleof
freedomof navigation"hasbeenadopted",we arenot toldwhetherCosta
Ricabelievesthatsuchaninterpretation formspartof generalinternational
law. Even if it does, which is by no means certain given the Latin
Americanpracticejustreferredto,that"broadinterpretationw "ouldapply
only to theextent it wasnotderogatedfrombytreaty; ithardlyqualifiesas
jus cogeras.
Award of1903 renderedby HenryM. Duffield,umpire,appointedby German-Venezuelan
MixedClaimsCommission,underAgreementof 13Feb.1903,10U.N.R.I.A.A.p. 438. Thecase
involveda complaintby GermanythatEaber, one of its nationals,had sufferedinjuryfrom
Venezuela'ssuspensionof navigationontheVenezuelanportoftheinternationaliversystem
of theCatatumbo and Zulia Rivers, which have their sources in Colombia. In supporting
Germany'sclaim,theGermanmemberof themixedcommissionreliedon principleof freedomof
navigatio. heumpirerejectedGermany'claim.
2g6LuciusCaflisch,R2gleginirales du drode coursd'eau internationaw219 Recueildes
coum (1989-VII)p9,arp.125.
153 B. A RIGHT OF NAVlCATlON RESTRICTED TO ARTICLES OFTRADE (OBJETOS DE
COMERCIO)
4.1.16 Costa Rica resorts, in her Application and Memorial, to different
stratagems with the aim of transforming the limited right of navigation
into a master key that would allow her in fact complete freedom to
navigate that sector of the San Juan de Nicaragua River indicated in the
1858 Treaty. Tothateffect,CostaRica has played with the meaning of the
phrase "with objects ofcornmet-ce"or ''with urticles oftrade" in order to
interpret it as 'Tor purposes of commerce" or "with !he object of
commerce ".
4.1.17 It is worth highlighting that in the abundant diplomatic correspondence
exchanged between Nicaragua and Costa Rica, logically written in the
Spanish language, the customary reference was to "objects of trade"
(objetos de comercio) 287.The attempts to change the express wording of
Article VI of the Jerez-CariasTreaty, are of recent originz8and serveto
unveil the objectivespursuedby the Applicant.
4.1.18 The expression "purposes of commerce" is used by President Grover
Cleveland in the second Article of the Award of 2 March 1888~''.
President Cleveland redrafted thisarticle in hiown handwriting and was
287Thereferencesto "objectsof trade"arenumerousinthediplomatic notesandannualreportsof
the Ministryof Foreign Affairsof Costa Rica, even when the second Articleof the;Cleveland
Awardis translated toSpanish,forexample,in theNote of 23 March 2900,(NCMAnnex43) To
the sameeffect see tjudgmentof the ConstiturionalChamberof the SuprCourtof Costa
Rica of 1Aubwst2001WCM,Annex 56).
*" In theNote sent by Costa Rican President Miguel Angel Rooni29eJuly2000.CRM,
Vol. 3Annex 66.
2" CCRM ,ol.2, Annex16.
154 carefultoplacethe expression&hin quotationrnarkz9O T.hiscan only be
understood tomeanthat theuse of the phrasein Englishdidnot alterits
meaninginthe originalSpanish text.Thismeaningwas inany casenot in
dispute at thattimeby the~arties.~"Thus, the Arbitratorrefers, as could
notbeothenvise, to "purposes of commerce"accorded toher(CostaRica)
insaid Article(VI)"of theTreaty(emphasisadded)'",nomore.
4.1.19 The debate here, in the English language, is the interpretationof a
provisionof a treatydraftedandauthenticated in the Spanishlanguage,
and not its translationsmoreor less felicitous,more or less interested.
ArbitratoC r levelandneverintended to makeajudgmenton something that
was notbeforehim.He was well awarethatif he haddone so, his ultra
petitudecisionwouldhavebeennull.
4.1.20 Whatarethe "objectsof commerce" (articles of trade) withwhichCosta
Ricacannavigate?
4.1.21 Nicaraguais not a party to the Vienna Convention,but the rules of
interpretationof Articles 31 and 32 are an expression of customary
internationallawrules,asthe Courh tasaffirmedonvariousoccasions(for
example, recently inSovereignty over Pulau Ligitan and PuIau Seidan,
2" NCM, Annex 72. DraftawardpreparedSecretaryof State George Rivinaccordanceto
Article5oftheRornin-Esquivel ruzConventionof 24December1886.
29'Let usrecalthatCosta Rica had no questionregardinthe interpretationof the Treaty,
consideringthat according to the Rives Report "TGovernmend of Cmta Rica did not
communicateany correspondinstatement and now declares tiJnds nothinginthat treav
whichisnotperfectiyclearandintellig"RegardingthebasisofthevaliditytheJerez-Caiias
Treaty,theonly pointsof debatewerethoseconcerning navigwithvessels of warandof the
revenueservice,and theelevenpointsofdoubtfulinterprsubmittedbyNicaragua,
SeeNCM,Chap.2.
155 2002~' a~nd Legality ofUse 01 Force, 20041.~" On this question, see
further Chapter 2,paragraphs 2.1.8to2.1.12.
4.1.22 In 1898 Costa Rica, today a party to the Vienna Convention, flooded
Arbitrator Alexander with such a torrent of doctrinal quotations on the
rules of interpretation of the treaties that in his AwardNo. 4295he could
only echo these by concluding that:"Allconcur thatwords are to be taken
as faras possible intheir firsand simplestmeanings - 'intheirnatural and
obvious sense,accordingto the general useof the same words'. ..r2Yh
4.1.23 What then are the objetos de comercio (articles of tradelpurposes of
commerce)to which reference is made in ArticleVI of the Jerez-Caiias
Treaty?The terms of a treaty, as stated in Article 31.1 of the Vienna
Convention,must be interpreted inprincipleaccording to their ordinar oy
usual sense in the context of the treaty. It is this Eastclarification that
allows the interpreter to choose betweenthe different meanings of each
term.
4.1.24 Article 31.4adds that "a special meaning shall be given to a tern if itis
establishedthat theparties sointended." The meaning given to a term will
be special whenit does not match itsordinary meaning in its own context.
But nobodyclaimsthat this is our case.
293ICJ,Sovet-eignoverPulm Ligiian andPuluuSipadan,judgmentof December 17,2002, para.
37
2w ICJ, Legaliw ouseofForce (SerbiaandMontenegrov. Belgium),Judgmentof 15December
2004,para.100
295NCM, Annex73.
29"~id, Fourth Awardof July26, 1899 (H.La Fontaine,Pasicrisiinfernationa1794-1900.
Histoiredoct~men~aidesarbitrageinlernationau1902,reprinte1997,M.Nijhoff3TheHague,
pp. 535-5371According toArticleI1of the Matus-PachecoTreaty,27 MarchI896 (see Ch1,
para. 1.3.39 1e,Presidentof the UnitedStates namedthe engineerEdwardP. Alexanderto
decide thepoints still in dibetweentheparties,on thedemarcationof the boundary.CRM,
Vol. 2,Annex 17. I, .
4.1.25 If we turn, in first place, to the maximumgrammatical authority of the
Spanish language, we will note that the word "objeto" (object) means,
according to the Royal SpanishAcademy Dictionary (tenth edition, 1852,
in use in18583,"lo gue sepercibe con alpno de los sentidoso acerca de
locual se ejercen"("that whichis perceivedby one or more of the senses,
or with respect towhich they are exercised"and only later"el timino o
fi de Eosactos de laspotencius" ("theconclusion or end ofthe act of the
powers", "elfin o insentoa que se divige o evacamivaaalguna cosa" (the
purpose or endto which a thingis directedor aimed."297
4.1.26 Theseusageshave not changed substantiallysincethen,
4.1.27If the termobjel'ois appropiate forreferring to a matter,good or thing, and
alsoto a purposeor aim,the same cannotbe said of thepluralformof the
word, namely: objetos. Although the Royal Spanish AcademyDictionary
does not offera direct and expressdefinition of this usage, it is entirely
beyond the normal and usual use of the Spanish language to speakof the
objetos of a treaty or science when referring to its purposes, aims or
objectives. On the other hand, the term objetos is used to identify things,
goods, merchandise and matters dealtwith by a science or treaties, if used
in theplural.
4.1.28 A literal translation of the phrase "con objetos de comercio" into English
is "with objects ocommerce". The word "object"inEnglish and"objeto"
in Spanishhave the sameLatin root of "objectus" and basically have the
same meaning.Thus, the phrase in English "with commercial objects" (or
withobjects ofcommerce) would perhaps not be the most felicitous use of
29NCM,Annex74.
157 the phrase but it could never be construed to mean "with object of
commerce"or of linguistic necessity withanadded "the":"with theobject
of commerce''. Equally in Spanish"con objetos de comercio" cannot be
construed to mean "con objeto de comercio" in singular because this
would imply not only eliminating the plural "s"in the original text, but
would also have needed anaccompanying"the" or "el" in Spanish:"con el
ubjeto de comercio".
4.1.29 If we follow the dictum of the Court inthe cases of theRight ofNutionals
of the UnitedStatesof America in Morocco or the SouthWest Africa case
19'andconsider similar texts of the period,we inevitably would be drawn
to the text usedby the Congressof Vienna in 1815for international rivers:
that is, riversthatflow through more than one State. The San Juan is of
coursenot an international Riversinceit flowsentirely withinone country
and besides is subject to a special Treaty Regime, but the texts of the
almost coetaneous regulations of the European rivers must have been
perfectly known by the Parties in 1858.Thus, if they wanted an ample
freedom of navigation for commercial purposes why did not they use the
more ample phrase of the Congress of Vienna that proclaimed navigation
to be entirely free "sous le rapport du commerce", thatis, for commercial
purposes or objectives.
4.1-30 1s it possible that the Parties in 1858 understood that they were
establishing a similar freedom of navigation with commercial purposes?
298RightsofNadionalsofthe UniredStutm ofAmerica in Morocco, 1952.ICJ Reports, 1952,
Judgmentof 27 August 1952,pp. I86 fftooICJ Reports,1966,SouthWest Africa(2"phrmse),
judgmentof 18July 1966pp.23-24,para.16-18.Likewise,inreferritotheagreementbetween
theLeagueof NationsandSouthAfricaregardingthemandateoverSouth-WestAfrica,the ICJ
foundthat,"Anyenquilyintothesightsandobligationsof thePartiesmustproceedprincipallyon
thebasisof consideringthetextsof the instrumandprovisionsinthesettingof theirperiod".
ICJRepor&,1966,judgmentof 1XJuly1966,p.23, para.17
158 '' 1.1.1, -
' '
< .
4I t
Hardly likely! Less than a year previously on 6 July 1857 the Parties had
entered into the Juarez-Cabs Treaty to which we have referred above in
Chapter 2299and although it was not ratified, its non ratification was not
due to any disagreement on the type of navigation,and thus it is an
indisputable aid in the interpretation of the 1858 Treaty. This earlier
Treaty stipulatedin Article5 that CostaRicacouldfreelyuse thewatersof
the SanJuan to transport articles of trade (articulos de cornerci~).~~H ~ere
we see exactly the type of navigation that was envisioned: it was
circumscribed to objects of commerce (articles of trade) that were
imported from outside the area andthose articlesthatwere exported also
outside the area. It was not freedom for anytype of navigation but only a
more restricted freedom but nonetheless the freedom of navigation that
was of crucial interest for Costa Rica at that time in which it had no other
meansoftransportation for the merchandisecoming and going fromand to
Europeandthe UnitedStates.
4.1.31 The results of the text'sexegesisisconsistent with its context (Article31.2
of the VCLT),in our case, the text of the Treatyasawholeg0'aswellas its
purpose. The Jerez-Caiias Treaty of Limits, as the name in its header
indicates is a Treaty of Territorial Adjudication that "sets the limits"
between the Republics of Nicaragua and Costa Rica. In the
the treaty's objective isto "end the differences that have prevented the
NCM, paras.2.1.26,seealsoparas.1.2.38,1.2.41,3.1.32.
j" NCM, para. 1.3.8.
AS thePCIJobserved(The Diversion of Water porn the Meus4 "theTreatybroughtinto
existencea certain regimewhich resultsfromall of itsprovisionsin conjunction.Itfom a
completewhole, the differentprovisionsof which cannotbe dissociatedfrom the othersand
consideredapartbythemselves"(JudgmentofJune 28Ih1937,Series AIB as.70, p.21).
Thepreamblesn ,otwithstandingtheextentof thebinding valuethatmightbeattributedtothem,
areespeciallyimportantin theinterpretationof the provisionsof the text of the treaty. (see for
instance,Rights of Nationalsofthe UnitedStates ofAmerica in Morocco, ICJ Reports, 1952,
Judgmentof 27 August 1952, p. 196; Sovereignty over Frontier Land, ICJ Reports, 1959,
Judgmentof 20 June1959,pp.221-222).
154 most perfect understandingand harmonythat should prevail between
them, fortheir common securityand growth".
4.1.32 The consideration of the object and purpose of the treaty points to an
interpretation that ensuresthe greatest effectiveness compatible with the
ordinaly meaning of the terms of the treaty within its context. It is
unquestionably a matter of satisfying the ultimate aim sought by the
parties within the limits of the provisions agreed upon. In no case can
extensive interpretations be admitted that go beyond that which is
expressed or necessarily implicit in the terms of the treaty, much less to
feel inclinedtoward ideal solutions that the partiesnever had the intention
to consent.
4.1.33 Inexchange for Nicaragua giving up her rights over Nicoya that were
solidly based on the principle of utipossidetisitiriof 1821, Costakica
hadto recognize that the entire course ofthe SanJuan de Nicaragua River,
as its nameindicates,appertainsto Nicaragua.
4.1.34 Given that the application ofthe General Rule of interpretation offersa
perfectly clear and reasonable meaning of the Article VI of the Jerez-
Cafias Treaty recourse to the supplementary means of interpretation
mentioned by Article 32 of theVienna Convention of Law of Treaties is
not needed.
4.1.35 Within the unruly and turbulent history that the Central American
Republics represented on the chessboard of the financial and strategic
interests of the United States and Great Britain, associated with the
construction of an inter-oceanic canaand the useof the river and lake as a rapid transit routeforpassengers traveling fiom the Atlantic to the Pacific
after gold was discovered in California, Costa Rica endeavoured in the
II
moments of Nicaragua's greatest weakness to seek to share her
sovereignty over the SanJuan river and even Lake Nicaragua.But having
to abandon this aspiration, Costa Rica's other vital national aim was to
secure for her products, mainly coffee, a way out to the Atlantic that
would ensure faster and cheaper access to the European market,
particularly Great Britain,which absorbed half of her production at a time
whenCosta Rica lackedports on the Caribbean andherexportsto Europe
had to head for C.apeHorn. This last is what the Jerez-Caiias Treaty
grantedto Costa Rica.
4.1.36 Any diplomatic document or preliminary treaty in the years prior to the
Jerez-CaiiasTreaty always bears relation to the transport of merchandise,
fruits, products, cornrn~dities.~'~
4.1.37 The most lucrative businessat the time of the signing of the Treaty of
1858 was by far the transport of passengers. Thus this transport of
passengers as a commercial activity was, needless to say, carefully
excluded from the right of navigation with articles of trade recognized by
ArticleVI oftheJerez-Caias Treaty.
4.1.38 It is important to underline that the exclusive right of navigation with
passengers in the San Juan River is derived fiom Nicaragua's exclusive
dominion and sovereignty as we11as the right to grant concessions for the
'03SeetheinstructiotoOrearnuno (instructinumber 171h, 6July1838),NCM,Annex8'7and
theMarcoleta-MolinaTreaty(28January 1854,art4).NCM, Annex 4.
161 construction of a canal and for the transport of passengers through it.
There is a juridical line inter-connecting these sovereign rights. It is
equallyimportantto underscore that the 1858Treaty of Limits, leaves this
issue out, based on the clear recognition by Costa Rica of Nicaragua's
sovereign rights as explicitly expressed,for example,in the Transitas well
as the Canal contracts thatwererecognized as validlygranted and in force
by Costa Rica underthe Articles VII and VIEI.
4.1.39 In effect, ArticleVIIof the Jerez-Cabs Treaty of Limits, sets safely aside
"...obligations subscribed to, whether under political
treaties or under contracts for a canal (canalizacion) or
transit made on the part of Nicaragua before this present
9,304
agreement ...
4.1.49 The Contracts celebrated by Nicaragua turn out to be, without a doubt,
very relevant as a basis for the exclusivity of navigating with passengers
and theexclusive right of Nicaraguaof grantingconcessions forthetransit
of passengers on the river.Fromtheconclusion of the Treatyand the fact
that thirdpartiesrespectedsuchConcessions one can deductthe exclusive
natureof the rightof Nicaraguato grant them.
4.1.41 This right was recognized by CostaRica on numerous occasions.The first
of these was when she accepted (Congressional Decree of 22 June
1852)30 tse Webster-Crampton Propositions of 50 April of the same
year,30%nd later, in the Preliminary Marcoleta-Molina Treaty of 28
3M CRM,Vol. 2, Annex7,p. 58.
3" CRM, Vol.6, Annex199.
3M SaidPropositiostated(Article3thatCostaRicawould havetherightto navigatethorivers
withsailvessels onlNCM,Annex 88.See alsObregtm, Clotilde,ElRiSun Juanen la Lucha
de /usPotencias (1821-186San JosC,CostaRica€-NED ,t 143.
162 January 1854 (Articles 4 and 51.~' It'was always one of the elements
presentin anyglobalagreement.
4.1.42 Subsequent to the conclusion of the Jesez-Caiias Treaty of Limits,
Nicaragua subscribed the Zeled6n-Rosa Pkrez Convention of 1 860 with
associatesand shareholdersof the American Atlanticand Pacific Maritime
CanalCompanyfor the "establishmentof an inter-oceanic way through the
Nicaraguan isthmus." In this Convention the Government of Nicaragua
granted "the exclusive right C...)to transport all kinds of passengers,
luggage,chests, merchandise and properties by land or waters, by way of
any ship,including steamships.rr308
4.1.43 Nicaragua granted such privileges in exercise of her sovereigntyand her
exclusiveright to navigate the river with passengers. This can be seen in
the wording of Article VII of the contract of 10November 1863signedby
Luis Molina as Minister of Nicaragua in Washington and Francis Morris,
president of the Central-American company, in which it was stipulated
that: "the exclusive right of inter-oceanic transit for passengers,luggage,
chests, treasures, cargo and articles of trade in general, by land or sea
within the following limits: by way of water, said Company will have
exclusive rightsof navigation as part of the inter-oceanic traffic and only
on that part fromthe SanJuan river fromthe Atlantic throughto bay of la
Virgenin lakeNicaragua,or anyother lacustrine port.,,309
'07NCM Annex 4 Applyingthe same measure,and Costahca excludedthe rightof steam
navigationbyNicaraguansintheriversunderitssovereignty tributarioftheSanJuanRiver.
'OZeledon -RosaPerezConvention A.rtV, NCM,Annex 17.
30NCM, Annex 18.LuisMolinaandFrancisMorrisContract.Art. 7.
1534.1.44 The same canbe said about the Pellas Contract, ratifiedo16 March 1877
where it states in Articlthat: "The Government of Nicaraguagrants to
Mr. F.A. Pellas,partners and heirs, the exclusiveprivilege, aneighteen
year period, to navigate with steamboats the SanJuan delNorte riverand
Lake Granada [lake~icara~ua] ..."3'Q
4.1.45 Nicaragua's exclusive of this exclusive right is also reflected in the
Cardenas-Menocal Contract, granted to the Nicaragua Canal Association
of New Yorkon 23 March 18~7~~'T . his Contract grantsthe exclusive
rights to excavate and operate a maritime canal through her territory
between the Atlantic and PacificOceans.
D. THE RIGHT TO LAND AT ANY PARTOF THE NICARAGUA NANK
4.1.46 Costa Rica refers in her Memorial, to the right to land any part of the
banks of the River where navigation iscommonas a right which arises
from Article VI of the Jerez-Cafias Treaty, associated to the right of
navigation3I2.
4.1-47 Nicaragua does not dispute such right, but pointout that it can onlbe
used for the enjoyment of Costa Rica'sright to navigate with articles of
trade, as expressed in ArticleVof theTreaty, inthat sectionofthe River,
fromthe Atlanticto apointthree English milesbelow the CastiZloViejo.
4.1.48 The right to land does not entail freedom to trade anywhere along the
route.The 1858Treaty was not a freetrade agreement. Furthermore, the
3'0~~~, Amex 19, FellasContract
3" NCM Annex20.
jI2CRM,paras.4.118-4.120 exercise of this righcannot supeisede or invalidate the intrinsic rights and
duties of Nicaragua to regulate matters of health and security in her
territory.
Section 4.2
The rightof CostaRicaunder the Jerez-Caiias Treaty
as interpretedin the Cleveland Award
4.2.1 It has been shown in Section 1 of the present Chapter that Nicaragua has
notbreached, and indeed has fullyrespected, Costa Rica'srights under the
Jerez-Caiias Treatyof 1&I3. Since the 1888 Award by PresidentGrover
Cleveland interpreted that treaty and since it did noinvolve the question
of the meaningof Costa Rica's right to navigate on the San Juan River
with articles of trade ("con objetos de comercio"), it follows thatwith
respect to navigation with articles of trade Costa Rica canhave no greater
rights under the Awardthan she has under the Treaty itself. As to the
many other rights of navigation claimed by Costa Rica, these also find no
supportin the Cleveland Award,as willbe shown in the presentSection.
4.2.2 Specifically, this Section will show thatCosta Rica offers no support,nor
is there any basis, for her alleged right of protection of commerce and
revenue control, nor is thereany basis for heralleged rightto "safeguard"
the river, except under very limited circumstances, none of which is
present. Costa Rica's alleged rightto the re-supplyof and transport of
personnel to and from border posts, and "other related rights", are
similarlywithout foundation,as shownin Chapter 5.
-
313~~, V01.2, Annex7,c)Englishtranslatio: icaraguav'ssionsubmittetoCleveland.
165 &. COSTA RICA' S LLEGEDRIGHTSOF NAVIGATIONFOR SPECIFIC PURPOSES
4.2.3 In Chapter 4 of her Memorial, Costa Rica devotes full sections to the
following alleged navigational rights: Right of protection of commerce
and revenue control (Section D); Rights and obligations to safeguard
(guarda)the River and to contribute to itsdefence, as well as defence of
the commonbays (Section E); Re-supply of and transport of personnel to
and from border posts (Section F);and Other relatedrights (Section G).
The short answer to many of these allegations is that Nicaraguahas not
breached the rights in question because theydo not exist. That Nicaragua
has not breached Costa kca's rights of navigation under the 1858 Treaty
has been demonstrated in Sections 1 and 3 of the present Chapter. The
present subsection will show that Nicaragua similarly has not breached
any right of navigation Costa Rica enjoys under the interpretation of the
Treaty in the 1888Cleveland Award.
4.2.4 Itshouldbe emphasized at the outset that it is, in the firstinstance, the
1858 Treaty that governs the rightsand obligations of the parties."4 The
parties never intended that President Cleveland be authorized to create
new rights or obligations,and the arbitrator himself was careful not todo
so. As has been seen, the questions put tohim concerned theTreatyitself
its validity and its Therefore, if Nicaragua has not
violatedCosta Rica's navigational rights underthe 1858Treaty, she has
also not violated them under the Cleveland Award. However, because that
award,particularly in the Secondparagraph of the disposicg elaborates on
3'4On this poisee, e.g., Chap.3, 1,above.
"bee Articles I theConvention of Arbitrationof 24 Decemb18845,CM, Annex 11 and
ArticlV1, CRM, Vol. 2,Annex14.
E66 the meaning of the Treaty, it is worth confirming that it provides no basis
for the novel rightsclaimedby Costa Rica.
4.2.5 As has been seenin Chapter 3, Section 1,President Cleveland recognized
only a bare minimumof navigational rights by Costa Ricanpublic vessels
in Nicaraguan territory,on the San Juan hver. He began by finding that
under the Treaty, Costa fica "has not the right of navigation of the river
SanJuan with vessels of war ..."In so deciding he rejected the following
recommendation of GeorgeL. Rives:
"The preliminary question of interpretation, as to the right
of navigation of the San Juan by public vessels of Costa
Rica, should, therefore,in my judgment, be answered by
saying thatthe vessels of war and of the revenue service
belonging to Costa Rica have the same privileges of
navigating the River San Juan as are usually accorded in
their territorial waters by civilized nations to thpublic
vesselsof friendly powers in time of peace,- but no other
orgreaterprivileges."3'"
4.2.6 Thus, while Rives recommendedthat public vessels of Costa Rica should
have the "privilege" of navigating on the river, President Cleveland, no
doubt influenced by the fact that under the Treaty the entire San Juan
River was part of Nicaragua's sovereign territory, rejectedall but the
smallest vestige of the recommendation. He was content neither with the
analogy to marine navigation, nor with even a mere "privilege" of
navigation with vesselsof war, nor with a general findingthatCosta Rica
maynavigate onthe San Juan with vesselsof the revenue service. Instead,
President Cleveland sharply restricted the circumstances under which
NCM, Annex71. GeorgeL. Rives, ReportoPresident GrovClevelan (d,cond),pp2 18-
219of handwritteversion.
167 navigation by such vessels would be permissible, as shown in Chapter 3,
Section 1. Costa Rica could only navigate with such vessels on the San
Juan when there was also navigation by Costa Rican boatswitharticles of
trade, and further, only with such vessels "as may be related to and
connected with" her enjoyment of the right to navigate with articles of
trade, "or as may be necessary to the protection of said
PresidentClevelandthus kept CostaRican revenuevessels on a very short
leash indeed,demonstrating his reluctanceto allow Costa Ricato navigate
with publicvesselsof any sorton a whollyNicaraguan river.
C. COSTA RICA'S ALLEGED RIGHT OF PROTECTIONOFCOMMERCEAND REVENUE
CONTROL
4.2.7 ButPresidentCleveland'sobvious efforts tokeep activitiesof Costa Rican
public:vessels on the San Juan toa bare minimum seem to have been lost
on Costa Rica. Under the heading, "Costa Rica's right of protection of
commerceand revenue control," Costa Rica statesinher Memorial:
"the perpetual rightof free navigation isa State right andas
such it is not iimited to private vessels. Publicvessels also
enjoy thisright, This was the position successfully upheld
by Costa Rica before President Cleveland in 1888 and itis
its positiotoday."'18
4.2.8 There is nothing inthe 1858Treaty or the Cleveland Award thatsupports
this proposition. Costa Rica's only rights of navigationon the San Juan
River are to navigation with articles of trade and the closely associated
rights of navigation by revenue vessels specified in the Cleveland Award.
It is of courseconceivable, though it wouldseemhighly unusual especiaIly
'I7CRM, Vol.2,AM~X 16.ClevelandAward,Secotiparagraphofdisposirif,
31RCRM, para.4.73.
168 for the period involved, that costa Rican public vessels would carry
articles of trad- such as coffee, for example - to market or a shipping
terminal via the San Juan River. But Costa Rica has not done this and
there is neither anyhint in the 1888awardthat President Cleveland had
such a role of public vessels in mind nor anysuch suggestionin the 1858
Treaty. Absent that, the only role left for public vessels is the extremely
limitedone carefully definedby President levela an lgd.^
4.2.9 President Cleveland's appreciationof Nicaragua's sovereignty overthe
SanJuan and the effects thereof is also illustrated by his answers to two
questions put by Nicaragua concerningpoints of doubtful interpretationof
the 1858Treaty. In points 4 and5 of the Thirdparagraph of the dispositzf,
the arbitrator said:
"4.The Republicof Costa Rica is not bound to concurwith
the Republic of Nicaragua in the expenses necessary to
prevent the bay of San Juan del Norte from being
obstructed;to keep thenavigation of the river or port free
and unembarrassed, or to improve it for the common
benefit.
5. The Republic of Costa Rica is not bound to contribute
anyproportion of the expenses that may be incurred by the
Republic of Nicaragua for any of the purposes above
4.2.10 Here President Cleveland recognizes that Nicaragua's exclusive
possession of the"dominion and supremecontrol of the waters of theriver
3'9ASindicatedin Chap.3, Sec. I, PresidentCleveland'sstatemenvesselsof therevenue
serviceintheSecondsectionof hisawardis informedbythelimitationsdescintherepor ot
GeorgeL. RivestothearbitratCRM, Vol.2,Annex 16.
32Ibid.Thir daragrapofdispositil;paras.4 and5
169 San~uan"'~' means not only that Nicaragua is responsible for the upkeep
of her territory, but alsothat CostaRicaneed not contribute to the expense
of doing so, a point also recognizedby George~ives.~~~ Hewas doubtless
sensitiveto the fact that requiring CostaRica to contribute to maintenance
and related expenses might suggest that she had some rights in the river
that sheclearly didnot possess.
4.2.11 Nicaragua's sovereignty over the San Juan River, and the historical
considerations describedin Chapters 1and 3 explaining why the boundary
was delimited in the way that it was, make this a special, even a unique
case. Therefore the fact that other treaties concluded between South
American countries in the 19thand early 201hcenturies recognized"rights
of navigation for public vessels of a neighbouring country ..even
extend[ingJ to war vessels 3,323has no bearing on the present case. The
treaty provisions cited by Costa Rica refer exclusively to warships, not to
public vessels generally. Since President Cleveland decidedthat Costa
Ricahad no right to navigate onthe San Juanwith warships, these treaties
have absolutely no relevance tothe questionbefore the Court. Moreover,
the treaties themselves do not create the specialkind of territorial regime
that iestablishedby the Jerez-Caiias Treaty.
4.2.12 Also of no present relevanceis the practice of theUnited States in the 1gth
century with regardto the "revenue cutters" used to guard her coast.324As
noted in Chapter 1, Section3, by invoking this U.S. practice Costa Rica
attempts to suggest that becauseU.S. RevenueCutters that ply U.S. waters
321CRM,Vol.2,Annex 7,p.57.
12'NCM,Annex 71.ReportofGeorge L.kves (Second).
'23CRM, para.4.80.
_'2CRM, paras.4.81-4.82.
170 , I'
have certain characteristics, i&ding armaments, Costa Rican revenue
vessels wishing to sailin Nicaraguan territoryon the San Juan, have a
right to be outfitted in like manner. Thisconclusion is a nonsequitur and
ignores entirely the special characteristics of the San Juan, a wholly
Nicaraguan river,as well as the sourceof any rights of navigation of Costa
Rica on that river, the 1858Treaty. The chief point of interest regarding
Costa Rica's descriptionof nineteenth century U.S. revenue cutters is that
it shows why President Cleveland was so careful to circumscribe tightly
the navigational rightsof Costa Rican revenue vessels:such ships can, and
do,easilybecomeships of war.
4.2.13 Costa Ricaalsoseeks to bolster her case for a right of her armedvessels to
navigate on the SanJuan bynotingthat Nicaragua argued in theCleveland
arbitration thatCosta Rica's revenuecutterswere "armedvessels,capable
of enforcingtheir demandsby force."3 C2o'ta Rica'sargument continues:
"But President Cleveland refused to assimilate those
vessels of the revenue service to war vessels. Only the
latter were declaredtobe excluded fromthe perpetual right
of free navigation recognized by the Caiias-Jerez
rea at^.""'
4.2.14 This argument misses the point entirely. The entire passage from which
theaboveexcerpt fromNicaragua's argumentwas taken reads as follows:
"Vesselsof the revenue service are akin to vessels of war.
While they have not allthe means of aggression as the
former, still they are armed vessels, capable of enforcing
'I5Ibid., para.4.84.CostaRigivesno referenceforthisquotation,butit appetohavebeen
takenfromtheReplyof theRepublicof NicaraguasubmittetoH.E. Hon. PresidentCleveland,p.
49.
326CRM, paras.4.84.
171 their demands by force, and must be classed in the same
category asvessels of war. Neither have the right,under a
commercial license, to invade the tenitor, domain, or
sovereigntyof the Republicof~icara~ua."'~
4.2.15 This passage affords a clear understanding of the fears of Nicaragua
regarding the navigation in her territory of armed Costa Rican vessels.
President Cleveland, clearly aware of the blurred line between warships
and revenue vessels, crafted an ingenious solution. Rather than merely
prohibitingthe former and permittingthe latter, which could have resulted
in Costa Rican revenue vessels becoming the functional equivalent of
warships (Costa Rica'sdescription of U.S. Revenue Cutters demonstrates
this32B),the arbitrator prohibited navigation by warships and permitted
navigation by revenue vessels, but only under extremely restrictive
condition^ ,ond'itions that would eliminate the possibility of revenue
vessels evolving into, or being used as, the functional equivalent of
warships. President Clevelandclearlywould not have intended to issue an
award thatcontained the seeds of its own destruction. Yet this would have
been the case ifCosta Rica's interpretation iscorrect: the award would
have prohibited navigation by Costa Rican warships but permitted
navigation by her "public anned vessels,"330which might well have been
entirely undistinguishable from ships of war.331Such an interpretation of
President Cleveland's award, which would give back with one hand what
the other hand had taken away, would clearly make no sense. As Judge
Weeramantry said in the Easl Timor case, "A time-honoured test of the
3" NCM, Annex 69. Reply of the Republic of Nicaraguasubmitteto H.E. Hon. President
Cleveland,p.49.
32"RM, paras. 4.81-4.82.
329TheseconditionsarediscussedinChap.3, Sec1.
'30CRM, para.4.79.
33'Of course, as discussedin Chap.2, in the exerciseof its police power in its own territoy
Nicaraguawould have the righttstopandexamineany vesselofdoubtfulcharactetodetermine
whether iconformedtothe 1858Treatyas interpreted intheClevelandAward.
172 soundnessof a legal interpretad% is whether it willlead to unreasonable,
or indeed absurd, resultt.''^^^,
4.2.16 However, Costa Ricamaintains that "Following the Cleveland Award, [it]
continued to navigate with armed personnel on revenue cutters or other
vessels on the lower part of the River and Nicaragua respected this
right."333 It should firstbe observed that Costa Rica has not introduced
evidence to support the propositionthat she had, since her first attemptsin
1886,navigatedon the lower San Juan with "armed personnel on revenue
cutters or other vessels" up to the rendering of the arbitral award,
Therefore, it is incorrect to state that any attempts she made to do so
following the Cleveland Awardwere"continu[ations]" ofpast conduct.
4.2.17 In fact, strikingly, there is no record of any navigation on the lower San
Juan by Costa Rican vessels of the revenue service after the incident in
1886involving a Costa Ricancustoms This speaks volumes
about the need, or lack thereof, for Costa Rica to navigate with such
vessels on the lower San Juan, which even today is populated only
sparsely on both sides of the river. The commerce that takes place along
the stretch of the river in which Costa Rica has the right to navigatewith
articles of trade iin fact akinto the trade of small local stores Ipulperias,
or"mom and pop" stores). This is confirmed by annual reportsof customs
offices in Costa Rica, which demonstrate that there does not exist any
significant transport of merchandise by Costa Rica on the San Juan under
332EastTimor (Portugalv.Australia),1995I.C.J.90,atp.161 (June30) (dissenting opinionof
JudgeWeeramantry).Seealso,e.g.,theseparateopinionofJudgeDe Castroin theICAOCouncil
case,"A ruleof law maynot be interpretedin a way which leadsto an absurdresult." Appeal
relating lo tJurisdictioof the ICAO Council (Indiav.Pakistan),1972 I.C.J. 46, p. 136,
(August18) (separateopinioofJudgeDe Castro).
33CRM, para.4.85.
334his incident isdiscussedinChap.3, Sec 1,par3.1.33-3-45..
173 the terns of the I858 Treaty; to the extent that trade is conducted by
residents of theCosta Rican side of the Snn Juan, all indications are that it
is with the interior of Costa Rica, not with Nicaragua or other countries.
However, the fact that there is little use of the San Juaby Costa Rica to
transport merchandise obviously constitutes no ground for the invention
by Costa Ricaof new rights,
4.2.18 It therefore appearsthat Costa Rica, realizing that she has a right - to
navigate with articles of trade- for which there is littleuse, now seeks to
replace that right with a new right to transport tourists. The problem for
Costa Rica is that no such right has ever, even remotely, been granted to
Costahca by Nicaragua.
4.2.19 Returning to Costa Rica'scontention that she navigated on the lower San
Juan with armed vessels fallowing the Cleveland Award"and Nicaragua
.,335
respected this right [sic] , the case cited by Costa Rica to support this
allegationhardly shows any such attitude on the partof Nicaragua. In
fact, it showsthe contrary. As Costa Rica describes this incident, which
occurred in 189~"'~the Costa Rican steamerAdelu"began its voyage.. . at
themouth of SanCarlos River in the direction ofCastillo ~iejo."'~' Thus
thesteamer enteredNicaraguanterritory from the San Carlos River,which
joins the San Juan fi-am itssouthern side, at a point where the right bank
constitutes the border. The author of the report cited by Costa Rica, Ciro
A. Navarro,of the Costa RicanTreasury, states that before going ashore at
CastiHoViejo to requestpermission to navigate in"the waters under the
exclusive dorniniumof Nicaragua,I did hide in Costa Rican territory the
335CRM,para. 4.85.
'" cRM, Vol.6, Annex 209.
"' CW, para.4.85.
174 I
armsand ammunitions that I caked for [a fiscal] post"33gin Costa Ricaa
post located a considerable distance to the west of the point at which the
right bank of the San Juan becomesthe border.
4.2.20 Costa Rica concludes that this incident shows that "navigation on the part
of the San Juan that constitutes the border between Costa Rica and
Nicaragua" (sic - the river does not, of course, constitute the border,
which lies on the right, or Costa Rican,bank in this sectorby a "steamer
carrying fiscal guards with their arms and ammunition was usual and did
notprovoke objectionorresponse fromtheNicaraguan authoritie~."~~~
4.2.21 As has been seen, the incident shows no such thing; in fact, it shows the
opposite. The Costa Rican official felt the need to "hide in Costa Rican
territory the arms and ammunitions" the vessel carried, prior to seeking
permission from the Nicaraguan officials. Nicaragua can hardly be said to
have failed to object to navigation by a steamer carrying arms and
ammunition when the arms and ammunition were not being carried at all
whenpermission was requested,but wereinstead "hid[den] in Costa Rican
territory". This tends to show instead thatthe Costa Ricanofficers did not
want the Nicaraguan authorities to know they were navigatingwith arms
on the stretch ofthe San Juan where the right bankconstitutes the border
(between the confluence ofthe SanCarlos River with the SanJuanandthe
point three miles downstream of Castillo Viejo where the border departs
from the right bank), suggesting strongly that they believed they had no
rightto do so.
''CRM, Vol.6,Annex 209.
33CRM,para.4.87.4.2.22 Moreover, there is nothing in the account to suggest that Nicaragua had
previously tolerated the carriage of armson the portion of the SanJuan in
which Costa Rica enjoys limited rights of navigation - or indeed that she
tolerated such navigation by the vessel in question once its presence
became known. Indeed, according to the report cited by Costa Rica, the
Nicaraguan commander of the post at Castillo Viejo responded to the
request for permission to pass by stating that "he had to follow previous
orderswhich forced him to deny permission to let weaponry pass by the
river;..5340 In addition, following the denial of permission, the report
states that "the steamboat carryingthe guards was searched, as well as the
river's coastlines; and the Castillo was reinforced with at least 25
~oldiers."~~'This indicatesthat, far frombeing a routine occurrence which
Nicaragua "respected", navigation evenby steamboats carrying guards, let
alone arms,gaveriseto considerablealarmon the part of Nicaragua.
4.2.23 Before leaving this incident it is worth noting thatjust as Costa Rica may
not claim new navigational sights because she chooses not to exercise
significantly her right to navigate with articles of trade, so also the
difficulty of transportingby land items for the re-supply of Costa Rican
border posts does not result in the creation of new Costa Rican
navigational rightson the SanJuan. Thus the fact that "the Costa Rican
Commander was obliged to transport its armsand ammunition by land,
3,342
which was extremely difficult to do , may be unfortunate, but it does
not give Costa Rica a license to navigate with arms and ammunition in
Nicaraguan territory. Instead, itsuggests that land routes to border posts
are still needed in Costa Ricanterritory.
14'CRM,Vol.6,Annex209, p. 847
342CCRM ,ol.6,Annex 209.
CRM,para.4.86.4.2.24 In an effort to show that she is abiding by the Cleveland Award, Costa
Rica states that she cannot navigate with vesselsof war because she"does
not possessanArmy.. .99343Shecontinues: "Costa Rica does not have any
vessels of war, but only police vessels with minimum defensive
capacity."344 The essence of this argument seemsto be that whether or not
a particularvessel is a warship depends upon what the state of its registry
calls it. Surely this cannot be the correct test. Yet it demonstrates why
President Cleveland was at pains to require a close connectionbetween
navigation by CostaRican revenue vesselsand navigation with articles of
trade: the formercannot occurwithout the latter. This restriction servesto
keep Costa Rica'spublic vessels within proper bounds, preventing them
from growinginto warshipsand frombeingused for purposes unrelatedto
navigationwith articles of trade.
4.2.25 It is precisely this latter functionthat Costa Rica obviously chafes under
and from which she is attempting to escape. In her Memorial, Costa Rica
states: "The purpose of ... vesselsof 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."345 This may
343
Inthe pas?decadethe:amount spentontheacquisitionof materielby CostaRican armedforces
has amplysurpassed thaofallthe combined armed forcesofNicaragua.Costa Rica may nothave
forces denominatedan "army",but she does possess armed forceswith attribuofboth police
and army forces. In particuArticle24 ofher GeneralCaw of Police, "Attributions", provides
thattheattributionsof the Border Policeinclude: "a) To patrol and protect maritime, land andair
borders, including public buildings where customasnd immigration activities aout." Thed
"police" are also charged with the safeguarof"b) ...the integrityof the national territory,
territorial waters,the contineshel fhe patrimonial sea or exclusive economic zone, the air
space and the exercise of the rights that correspond State."NCM. Annex 85. Moreover,
according tthe Costa RicannewspaperLa Naci6n (6June 2006)"Gobiernodesecharaams de
Guerra" (Government willchange its militaryarmament),the CostaRicanpolice force "currently
uses" M-16rifles,wararmamentsgivento thepoliceforceseveralyearsago.
344CRM,paw. 4.90.
345CW, para.4.93.
177 be true, and Costa Rica obviously has the rightto use her revenue vessels
for these purposes in her own waters. But President Cleveland did not
authorize Costa Rica to conduct any of these activities on the San Juan
except insofaras navigation by her revenue vessels was "relatedto and
connected with her enjoyment of'346navigation with articles of trade. If
Costa Rica believes there are cases of "trafficking of persons" on the San
Juanthat are properly of Costa Rican concern, for example, she may
always request the assistance of Nicaraguan authorities or even seek
specialpermission to stop and verifyhow a specificboat is being usedon
the San Juan. Her vessels may not navigate an the San Juan for the
purpose of preventingsuchtrafficking; however,forthe simple reason that
it does not involvenavigation with articlesof trade.'47Theeffectof Costa
Rica's argumentis that shehas a right to armed navigation on the SanJuan
for the purpose of immigration control. But, tostate the obvious, the San
Juan is Nicaraguanterritory. A right of one country to enter the territory
of another with arms, and to capture there citizensof the latter, in their
own national territory, is something no Government would accept - at
least without explicit prior authorization.348 And yet this is what Costa
Ricaargues in her Memorial.
4.2.26 In the lengthy section of her Memorialon "protection of commerceand
revenue control", Costa Rica devotes only three paragraphs to that
subject.349 These paragraphs consist of unsupported assertions by Costa
j4"RM, Vol.2, Annex 16.ClevelandAward,dispositif,paragrSecond.
I4'Imightbeaddedthat traffickiinpersonsalsodoes notfallwithinanyaccepteddefinitionof
"commerce" butis ratheracriminalactivity.
j4'Evidenceof Nicaragua c'scernregardingCostaRica'msigrationcontrolactivitiinthe
vicinityof theSanJuanisprovidedby theNoteof NormanCalderaCardenal,oreig ministerof
NicaraguatoMinisterBruno Stagnoof June2006; NCM, Annex50.
CCRM p,ara4.93-4.95.
178 Rican officials,35a description of the Costa Rican agenciesthat allegedly
"protect its comercia1 navigationon the San ~uan")~'(although, as noted
above, thereis no record of any navigation on the lower San Juan by
Costa Rican vessels of the revenue service after the 1886 incident), and
affidavits of "several witnesses"3s2 stating that Costa Rican police
"regularly navigated the San Juan with personnel openly carrying their
service weapons," and "even carried out joint tasks with the Nicaraguan
armed forces." T3hsre is no suggestion that Nicaragua acquiesced in the
former activity, of which she may well have been unaware given the
conditionson the SanJuan. As to carrying outjoint taskwith Nicaraguan
armed forces, it is of course always open to Nicaragua in the exercise of
her savereignty to consent to specific instances of cooperative activity
withCosta Ricarzforcesin her territory, on the SanJuan hver.
4.2.27 In sum,therefore, Costa Ricaoffers no significant supportforherassertion
in this sectionof herMemorial (Chapter 4, Section Q) that she hasa right
of "protection of commerceand revenue control". It is clear that under the
Cleveland Award Costa Rica "may navigate [the San Juan] with such
vessels of therevenueservice ...as may be necessary to the protectionof
[the] enjoyment [of navigation with articles of trade^." Surprisingly,
Costa Rica does not address this right at all in this section of her
Memorial, even though itis entitled "protection commerce and revenue
control". The reason for this omissionispresumably that,as noted above,
there is virtuallyno navigatioby Costa Rica on theSanJuan with articles
Thisis the case of the statoftheCostaRicanForeignMinister,setforthatlengthinthe
CRMpara. 4.93.
351
Ibidpa.ra4.94.
352Ibid. para.4.95,wherethethrustof theseafidaviverybriefly describedas quoted in the
textaccompanyingthe followingfootnoteof theMemorial.
35Ibid.
354CRM,Vol. 2, Annex16.ClevelanAward,Second ofdisposit$
174 of trade and therefore no need to protectsuch navigation. Yet this is
where Costa Rica's right of protection with revenue vessels begins and
ends. Without navigation with articles of trade, there isno rightof
protection.
D.COSTA R~CA'S ALLEGEDRIGHTSAND OBLIGATIONS TO SAFEGUARD(GUARDA)
THE RIVER AND TO CONTRIBUTE TO ITSDEFENCE, AS WELL AS THE DEFENCE OF THE
COMMON BAYS
4.2.28 Here again, Costa Rica takesa very limited obligation under ArtIVlof
the 1858 Treaty to defend the Baysof San Juan del Norte and Salinas as
well as her bank of the San Juan River and seeks to expand it into a
sweeping rightto safeguard anddefendthe entire lower SanJuanRiver.
4.2.29 Such a sweeping right would support Costa Rica's apparent goal of
navigating with armedpublic vessels on the San Juan, especially view
of the fact that, as demonstrated above, she has no case fordoing so with
vessels of the revenue servicefor the protection of commerce or revenue
control. Costa Rica rests this obligationfrom which she infers broad
rightson the 1858 Treaty andother agreementsandpractice.
4.2.30 It hasbeen shown previously in thpresent chapter that theis in fact no
such support forthe righclaimed by Costa Rica. While Costa Rica states
inthe concludingparagraph of the relevant sectionher ~ernon'al~~ t~at
her right to navigate on the SaJuan for the purpose of carrying othe
"tasks of custody and safeguarding of the San Juanwas "recognizedin
the ClevelandAward", inte alia, she makes no argument to this effand
does not otherwise supportthe proposition.
Is'CRM,para.4.1015.
180 , ,
if'.!.
4.2.31 Such an unsupported assertion of broad rights of armed navigation is in
effect self-refuting These are certainly rights that Nicaragua cannot
accept, inter alia, because they are nowhere supported in the Cleveland
Award. In fact, the following words of George L. IZlves, to whom
President Cleveland delegated thetask of preparing a draft of the award9
I
negate such a right. In addressing whether Costa Rica has a right to
"maintain a river police" to "patrol the river in boats", Rives also
explainedthe meaningof Article1Vofthe 1858Treaty:
"This may be a convenient way of preventing smuggling;
but it is not so necessary an incident to the rights of Costa
Rica to enforce her customs laws as to be inevitably
implied ex-necessitatefromthe provisions of the treaty.
The stipulations of Article IV throw no light on this
question. All thatarticle requiresis thatCosta Rica should
repelforeign aggression on the river with all the efficiency
within her reach. If under the terms of the Treaty, Costa
Rica is not permitted to maintain vessels of war on the
River she cannot be regarded as derelict if she fails to
oppose foreign aggression in that quarter by her naval
forces. Impossibilitiesare not required. Costa Rica would
only be bound to contribute to the defence of the streamby
land, a mode of defence, it may be added, which seems
better adapted to a River of the size and character of the
San ~uan."'~~~m~hasiis noriginal)
4.2.32 Thus, as explained by fives, to the extent that "safeguarding" Quarda)
against "foreign aggression" is needed, the 1858 Treatyprovides for Costa
Rica to accomplish it from her "shores of the San Juan River" ("las
nacirgenesdel rio deSarzJuan").
-'5NCM, Annex 71.Reportof GeorgeL. Rives (Second),(p. 11-212of originalhandwritten
version.)
1814.2.33 In any event, theterms of Article IV of the Treaty,given their ordinary
meaning, framethis function as an obligatio nnot as a right. George L.
Rives clearlyviews ArticleIV in this manner,as thepassage quotedabove
demonstrates. This obligationwould not ariseunlessand until there was
an externalthreat or attack - an "attack from without" c4aggression
exterior").
4.2.34 When viewed in the contextaf the entirety of ArticlIV, it becomes clear
beyond doubt thatthe term in question ("'guardraefers to theobligation
of Costa Rica to defend against external aggression, in the event such
should actually occur or be threatened, notto patroltheriveror even the
banks on a routine basisin timeofpeace. The first sentenceof ArticlEV
concerns the "defense" of thebays of SanJuan del Norte and Salinas; the
secondsentence of the article provides that Cost&ca is obligated cbesta
obligndnCosta Rliica")a,s respectsthe portion of the banks of the SanJuan
corresponding to her, to unite with Nicaragua in "safeguarding"
~'gecardu't')e river.
4.2.35 Thus, in sum,Costa Rica's obligationto "safeguard" (a) would only arise
in the event of external aggression, (b) would have to be carriedout
together with Nicaragua, and (c) would have to be performed from her
bank ofthe river,not fromboats on thewater. Boththe 1858Treaty and
George L. Rives Rivesframe this as an obligation, not asright.There is
no right to "safeguard" from boats on the river, and Costa Rica's
obligation to "safeguard" from her banks must be exercised jointly with
Nicaragua. E.COSTA RICA'S ALLEGED RIGHT TO THE RE-SUPPLY OF ANDTRANSPORTOF
PERSONNEL TO AND FROMBORDER POSTSAND "OTHER RELATED RIGHTS"
4.2.36 As for othersightsallegedby Costa Rica, these find absolutely no support
in the ClevelandAward,as shownin Chapter 5.
Section 4.3
Costa Ricapurportsa right ofnavigationin the SanJuande Nicaragua
Riverthatis not grantedbythe Jerez- CaiiasTreatyor by the Cleveland
Award
4.3.1 It is significant thatfor more than one hundred yearstheobservance of the
Jerez-CafiasTreaty has not posed any problem in relation to the exercise
of the limited rightof navigation recognizetoCosta Rica "with articlesof
trade". In fact, soon after the conclusion of the Trethe occlusion of the
mouth of the river renderedthe San Juan kver useless forthe importation
and exportationof CostaRica's products. By 1862-1863,the port of San
Juan del Norte was The revenue service steamer that Costa
Ricawantedto introduce in the river in 1886no longer had anything to do
with safeguardingthe only right recognizedby the Treaty.
4.3.2 The denialof Costa Rica'sdesiresby the Cleveland Award, which granted
her the right of navigation with revenue service vesselsstrictly linketo
navigation with articlesof trade thatin practice it could only attempt to
translate into a modest coasting trade, coupled with the abandonment of
Replyof the Republicof 'Nicaratothe Caseof the Republicof CostaRica submtothis
ExcellencyHon.GroverCleveland, Presidentof the UStatesI8X7W. ashingtot887.p. 38.
183 the inter-oceanic canal projects, once it was decided to build the canal in
Panama,caused the sister Republic, today petitioner,to loseany strategic
and commercial interestin the SanJuan River it mayhavehad inthe past.
4.3.3 Indeed, diplomatic correspondence is notorious by its absence, and can be
described as episodic and specific, dealing with other difficulties and
conflicts between the parties that may have had for scenario the river, as
well as other points along their extensive border. Costa Rica is unable to
document a single incident in one hundred yearsthat had anything to do
with a breach of her right to navigate the San Juan River with articles of
trade. Nor is there any record that after the Cleveland Award any Costa
Rican revenue servicevessel navigatedthe SanJuan Riverunder the terms
establishedby the Award.
4.3.4 It was only until the nineteen eighties's8that Costa Rica invoked, at first
cautious1 y, and then more brazenly in the ninetiesj5', the Jerez-Cafias
Treaty to affirm rights of navigation and other rights over the river that
358On 8 June1982,Costa Rican Ministerof Foreign AffairsFernando VoPioaddressed, for the
firsttime, Nicaragua'schargi d2flaires a.i ,o transmit the complaint lodgedby Swiss Travel
Sewice S.A.after a boarbelongingtothat Costa Rican company was interceptedby a Nicaraguan
patrol in theSan Juan River.According to the Note, the incident affected"The rightof free
navigation onthe San JuanRiver thatare categoricaland inperpetuallyguaranteed forCosta Rica,
and becalise iteconomicinterests of the country"(emphasis added). CRM, Vol. 3, Annex 41.
Nicaraguarejectedthe protestin aNote of 2 AugustOF thatyear. CRM,Vol. 3, Annex44.
35%~ 15 March 1994, Costa Rican Ministerof Foreign AffairsBemd Niehaus addressed his
Nicaraguan counterparEt rnestoLealin reference to thefact that Nicarayan agentshaddemanded
paymentof a tolltax fromCostahcan vessels navigating inthe SanJuan Riverthat were carrying
tourists (NCM, Annex 41). On 21March 1994,Minister Leal replied that"the expression in the
Treaty 'conobjetos de cornerciu'[with articlof trade] excludesany other activity", addingthat
"the terms of thetreaty shoulbe interpretedin the standardsensethey had at that time" and that
"being ita TreatyofLimits, ishould be interpretedin a restrictiveway."TheNicaraguanMinister
went on to conclude: "...Costa Rica's perpetual rightof free navigation...does not include
tourism, andmuchless the freeaccess to Nicaragua's sovereign territorto foreign citizenswho
travelinCostaRican vessels that navigateon the saidRiver." CRM,Vol. 3, Annex 48.This would
become a fornulation constantly repeatedin Nicaragua'sNotes and diplomatic statements every
time Costakca soughta different interpretation.
184. !I-,,,
+ r
have nothing to do with the li%#ed right of navigation "with articles of
trade" recognized in Article VI of the Treaty, nor with the rights of its
revenue service vessels related to the exercis oefthis right as interpreted
by the Cleveland Award.These are the two instruments upon which the
special regime of San Juan River is excEusively based, as has been
repeatedly recognizedby the parties.360"Nothing has occurred since 1 S8X
that modifies that juridical situation", said Costa Rican President Miguel
hgel ~odri~uez. j6'
4.3.5 Costa Rica again and again pays lip service to Nicaragua's sovereignty
and "dominion and sovereignjurisdiction"w , hile attemptingto undermine
and empty it of any content by claiming for itself a status, which has no
basis in the Treaty, that in fact would allow the exercise of competencies
proper of a sovereign in the course of a river that does not belong to Costa
Rica.
4.3.6 Costa aica intends to transfigure this limited right of navigation "with
articles of trade", recognized in ArticleVI of the Jerez-Caiias Treaty, into
a right to use a section of the SanJuan River to engage in tourism, sports
or any other activities she may choose to undertake, as well as to link the
watercourse to the defense and protection of its interestsin the area of
customs, migrationor struggleagainst illegaltrafficking.
350See NCM, Annex 62 ConstitutionofCosta Rica of E917 (Article5) andNCM, Annex 63,
Constitutionof CostaRica of 1949 (Article53.See also the Note of 12 August 1498,(CRM,
AnnexesVol. 3, Annex50) and theNote of Costa RicanMinisterof Foreign RelationRoberto
Rojas of22 May2000:"wearebefore aSpecialRegime established by aTreaty and an Awatd
thatareinherentandspecificto publicinternationalaw..."(CRM,Vol. 3, Annex 63 ) See also
NCM, 79.Yearbookof theMinistryof Foreign Affairs, 001-2002,at 143.NCM,Annex47. Note
of 6December2004.
Note of 29July2000.CRM,Vol.3, Annex 66.
1854.3.7 In all the aforesaidpoints,it is possible to establish mechanismsof border
cooperation through an agreement between the neighboring Republics.
Nicaragua has always been and continues to be willing to negotiate and
implement thesetypesof agreementsas has already been done in the past.
4.3.8 However,Nicaragua is not willing nor could be willing to accepta crude
revision of the Jerez-Cafias Treaty, through a self-serving interpretation
that renders it unrecognizable and destroys the foundation on which the
delicate balance of Nicaragua and Costa Rica's territorial interests were
erected in 1858.When Costa Rica frivolously claims the violation of her
rights by Nicaragua, it is only providing evidence of Nicaragua's
persistent and unequivocal denial thatsuch rights exist.
4.3.9 Costa Rica attempts to extend the tight of navigation "with articles of
trade"(with commercial objects) to the transportation of "tourists". This
activity is not contemplated in the 1858 Treaty. The reason it was not
included is not that this was an unknown occupation at the time of the
Treaty. Quite the contrary.The transport of passengers, especially foreign
passengerswhich would be the nearest equivalentof the touristtrade, was
a booming business. Nicaragua had signed contracts for example with
CornrnondoreVanderbilt that had been extreme1 y lucrati~e.'~Costa kca
herself, taking advantageof the FilibustererWar in Nicaragua had signed
in December 1856a similar contract with Mr. Webster (the Mora-Webster
contracts). The transportof passengers was thus a very importantbusiness
and it was in dispute between both States. In fact, this business of the
transport of passengers (touristsin fact) was one of the most heatedly
disputedquestionsbetween the Parties. Then,why was no mention of this
362NCM, Chap. 1,para.1.3.15.
186 ,,f:;i
line of business made in the 185dTreaty that very carefully only referred
to "commercial objects" (objetosde cornercio) whilst the 1857 Juarez-
Caiias Treaty only referred to "commercial articles" (articulos de
cornercio)? The answer clearly is that the transportationof merchandise
(objects,articleof trade) was included but not the transportopassengers.
4.3.10 Costa kca assertsthat trade and the notionand contents of "trade" have
changed. Now it not only includescommodities,but also services, among
others, tourism, Should this affect the interpretation of the Jerez-Cafias
Treaty? CostaRicabelieves so3". Nicaragua firmlyasserts the contrary.
4.3.11 Should the terms used in the treaty be interpreted according to their
meaning at the time it was concluded (principle ofaontemporuneous~ess),
or is it appropriate to assume meanings that emerge later?The Vienna
Convention does not make any provision on this matter. It is necessaryto
take into account the intention of the parties when adopting the text or
infer it from subsequent agzemmts betureen the parties and any
subsequent practice inthe applicationofthe treaty.Insuchcircumstances,
recourseto the treaty's object andpurpose isdecisive.
4.3.12 The awardin the case of Petroleum Development Ltd. v.Sheik ohfAbu
Dhabi (1951) is illustrativeven though it refers toa contract between a
State and a foreign investor. The arbitrator deemed thatthe hydrocarbon
concession granted in 1939 by the sheikh of Abu Dhabi to Petroleum
DevelopmentLtd over his territory should not extend to the continental
shelf, a notion unknown at that date, based on the assumption that the
person who grants property rights of great value does not have the
31CRM, paras.4.58-4.72.
187 intentionto grant morerights than thosein his possessionat the time of the
transfer3@.
4.3.13 On the contrary, in the caseconcerning the Aegean Sea Continental Shelf
(19781,the Court, forcedto interpret the reservation formulated by Greece
in 1931 to the 1928 General Act for Pacific Settlement of International
Disputes, which excluded the Court's competence in any disputes relating
to territorial status, ruled that the reservation also affected disputes
concerning the continental shelf because it was presumed, given the
circumstances and the purpose of the same, that the meaning af territorial
status was to follow the evolutionof the law and assumed, at all times, the
meaninggiven by the rules in force3".
4.3.14 However, both judgments respond to the same objective of restrictively
interpreting any assignment of sovereignty. The references to territory
excludethe continentalshelf, a recent concept, since it cannotbe presumed
that the intention of the sovereign is to extend a concession over new
spaces subject to its jurisdiction, but include it when it is a matter of
limiting the set of controversies, the solution of which the sovereign is
placing inthe hands of a third party.
4.3.15 "In appreciating the intentionof a Party to an instrument", says the Court
(Judgment of 1 9 December 19781, "there is an essential difference
between a grant of rights of exploration and exploitation over a specified
area in a (mineral oil) concession and the wording of a reservation to a
treaty by which a State excludes from compulsory procedures of pacific
settlement disputes relatingto itsterritorial status. Whilethere maywell be
I" ArbiualAward of28 AugustI95 IInlernationaLi?galMaterial1951,p. 144.
_'"5~~ 3eports, 197p.32,Judgmentof 14December 1978,para77.
188 .%
a presumptionthat a person tra;s&rring valuable property rightsto another
intends only to transfer the rights which he possesses atthat time, theease
appear to the Court to be quite otherwise when a State, in agreeing to
subject itselfto compulsory proceduresof pacific settlement, excepts from
that agreement a category of disputes which, though covering clearly
specifiedsubject-matters, is of a generic kind.Once it is established that
the expression 'the territorial status of Greece' was used in Greece's
instrumentof accession as a generic term denoting any matters comprised
within the concept of territorial status under generainternational law,the
presumption necessarilyarises that its meaningwasintended to follow the
evolution of the law andto correspond with the meaning attached to the
expressionbythe law in forceat any giventime"366.
4.3.16 In general, treaties imposing limitations on the territorial sovereigntyof a
State must be interpreted in restrictive terms.Thisis obvious in case of
doubt. Already on the first judgment of the Permanent Court of
International Justice, when rulingon the right of the S.S. Wimbfedon to
free passage through the Kiel Canalunder the terns of Article 380 of the
Treaty of Versailles the Court held that: "Whether the German
Government isbound by virtue ofa servitudeor by virtue of a contractual
obligation under-ken towards the Powers entitledto benefit by the terms
ofthe Treatyof Versailles,to allow free access to theKiel Canal in time of
war as in timeof peace to the vesseIs ofall nations, thefact remains that
Germanyhas to submit to an important limitation of the exercise of the
sovereignrights which no one disputes that she possesses over the Kiel
Canal. This fact constitutes a suflcient reason for the peestrictive
interpretation, in case of doubt, ofthe clause which produces suck limita$ionJJS7 . aturally, the restrictive interpretatiodoes not proceed
when thetext is clear:"theCourt feels obliged to stop at thepoint where
the so-called restrictive interpretationwould be contrary to theplain terms
of the articleand woulddestroy whathas beenclearly granted"368.
4.3.17 Inany case, an evolutioncayinterpretation shouldnot be confusedwiththe
incorporation of mechanisms ina treaty thatallow forthe evolution of its
provisions and facilitatetheir adaptatioto newinternational lawrules.
4.3.18 The latter is what the Court actually emphasized in its judgment
concerning the case of the Gabcikovo-NagymarosProject (1997)'~~.
However,as Judge Bedjaoui stated in his separate opinion, interpretation
of a treaty has not be confusedwith itsrevision andwhen applying the so-
called principle of evoluttoraarinterpretc~tioorf a treaty theCourt should
have in mindthatthe general rulegoverning the interpretationof a treaty
remainsthat setout inArticle 31of the 1869 Vienna onv vent ion^'^.
4.3.19 If we apply this reasoningto the case at hand, we will easily reach the
conclusion that the referenceto commercein ArticleVI of the Jerez-Cafias
Treaty comprised in 1858, and still comprises today, traffic in
commodities andnot services unrelatedto said traffic.This is particularly
the case whenthe words"witharticlesof' are addedto "commerce".
367Emphasisadded. PCIJ,CUE oftheS.S.Wimbledon.Judgmentof 17August 1923,Rectreildes
arretsNO1,pp. 24.
368Ib.pp. 24-25.See tooPCIJ,Case oftheFree Zones ofUpper Savoyand rheDistrictofGex,
Judgment of7June1932,Series AIB ,udgments,OrdersandAdvisoryOpinions,fasc.46,p. 167.
-'6g1~~~ep:por~s, 7,Judgmentof 2September 1997,pp.67 ff.para. 11ff.
(bid.,pp12\-124,para6-18.
1904.3.20 It is notjust a matter ofarguin$ the nature, objectand purpose of a treaty
of territorial limits, in which the territorial sovereignty limitations should
be restrictivelyinterpreted; it is rather a matter of further respectingthe
grammatical, logical and systematic meaning of a text that does not refer
to "trade", but rather to "articlesof trade".
4.3.21 Not only that. Costa Ricadeliberately forgets thatthe right in question is a
right of "navigation". To navigate is to travel by water from one point to
another. Neither more nor less. Any added value exceeds the concept of
navigationand as this value increases, navigation ends up being a mere
support of a different activity, whether it be tourism, radio broadcasting,
fishing or gambling. This has nothing to do with the mere transport or
carrying of things or persons (these last, in any case, are by the express
limitation to navigation with "articles of trade"). The purpose of Costa
fica is not to navigate, but to commercially exploit, for tourismpurposes,
a riverthat doesnotbelongto her.
4.3.22 As Judge Kooijmans stated in his separate opinion that accompanied the
judgment of the Court of 13 December 1999, in the case of the
KasikiEi/Sedudu Jsland (BotswanaDJarnibia), the navigation for tourist
purposes "has virtually nothing to do with fluvial transportin the normal
sense of theword'navigation',as this is understood to mean transport by
boat ina riverfrom one place to another"S71.
4.3.23 Nicaragua could not assert an interpretative mummification that would
lead her to demand that the right of navigationbe exercised according to
the nautical means of 1858, It is possible to assume the gradual
371
Judgment of13 December1999,SeparateOpinionof JudgeKooijmansp, ara29
191 modernization of the means of transport to the extent allowed by
Nicaragua's obligations with third parties and the measures that she must
adopt for security reasons and environmental conservation in the exercise
of her sovereign responsibilityover the river.
4.3.24 It should also be acknowledgedthat the articles of trade, merchandise and
goods being transported are subject to change over time. It would be
unreasonable to seek a limitation to only the products concerned in 1858.
But if the "articles" canchange, they nonetheless have to continue being
"articles".
4.3.25 The fact that the use of this limited right of navigation with articles of
trade is modest today, even irrelevant, does not allow its beneficiary the
right to use the river for developing other profitable activitiesas a formof
compensation.
4.3.26 Thetight of navigation with articles of trademust not be confused with the
commercial exploitation of a fluvial course through tourism or other
activities. This is CostaRica's claim, but itis not a right based on article
VI of the Jerez-Cahas Treaty.The claim andanybehaviour based on it is
abusive.
4.3.27 This is so because it appears to reflect a deliberatepolicy in which first
authorizationsandpermits are applied for,trusting that in a policy ofgood
neighbourliness, Nicaragua will proceed to grant them as boundary
courtesies, thereafter claiming said authorizations and permits as a right
and invoking the Jerez-CafiasTreaty. This has occurred with her claimed right to navigate (armed, im~bi be added) to re-supply her border posts
(see Chapter5.2)orforsportingortourist activities.
4.3.28 This was the case, for example, with the InternationalNautical Rally
Sarapiqui River/SarzJuan River. In 1993 ADENA of Costa Rica applied
forthe pertinent permit fromtheNicaraguanauthorities37sw , hich granted
it373The same occurred again each year from 1994to 1999.However, in
the year2000,ADENAdecidedto hold the VII Rally withoutapplying for
a permit. Logically, when the participating boats enteredthe waters of the
San Juan River, they were detained. On 26 October, five days after the
events, the Minister of Foreign Affairsof Costa Rica formulateda formal
protest, describing themas a serious violationof Costa Rica's right of free
navigation, in accordance with the Jerez-CaAas rea at+ In?^2005,
ADENAof CostaRica once again appliedfor apermit(with a copyto its
country'sMinistry of Foreign~ffairs)~?~.
4.3.29 As regards tourism, it is worthmentioning in particular the Memorandum
of Understanding signed on 5 June 1994,by the Ministers of Tourismof
Nicaraguaand CostaRica regardingtourist activities in the borderzone of
the San Juan ~iver~~~.It literally afirms that Costa Rican tourism
companies have an obligatio tnacquire tourist cards and toregister in
Nicaragua. Whether this Memorandum of Understanding is or is not a
372NCM, Annex 39. Note fromthe Director of ADENA, JuliMartin to theAmbassadorof
NicaraguainCostaRicaMr. AlfonsoRobelo.SanJost,27September 1993.
373NCM Annex 40, Notefrom ErnesioLeal,Ministeof ForeignAffairto the Ambassadorof
374araguainCostaRica,AlfonsoRobelo,8October1993.
NCM Annex44. Notefrom theMinisterof ForeignAffairsand Worshipof Costahca Mr.
Roberto Rojato the Ministerof ForeignAffairsof NicaraguaMr. FranciscoXavierAguirre.San
Jose,26October2000.
375NCM Annex48. Note from Miguel A. Leon, Directorof ADENAto the Anlbassadorof
Nicaragua,FranciscoFiallosNavarro SanJo27,May2005.
j7'CRM,Vol. 2,Annexes25 and 26.
193 legallybinding agreement, therecan be no more explicit admission by the
Minister in charge of tourism on behalf of the Costa Rican Government
that Nicaragua has a sovereign right to establish controls and demand
payment of certain fees for carrying out an activity not covered in the
Jerez-Caiias re at^.?"
4.3.30 Costa Rica's claim that her revenue service vessels may navigate the San
Juan River to exercise competencies related to customs, migration or the
struggle against illegal lacks a11basis in the Jerez-Cafias
Treaty and Cleveland Award, and is manifestly incompatible with the
"'exclusivedominion and sovereignty" in a place where, as Costa Rican
Foreign Minister Tovar stated, "a drop from the San Juan River is a
Nicaraguan drop,"3"
CONCLUSION
4.3.31 The recobmition that Nicaragua enjoys "exclusive dominion and supreme
control" over the San Juan Riveremphasizes the verycircumscribed rights
accordedto Costa Ricaunder the 1858Treaty. Costa Rica does not enjoya
right of "free navigation" as such, but a right of free navigation "con
37"RM Vol. 2, Annex 29.These fees for obtainiagtourist cardwere suspendedin September
2002(AlajuelaDeclaration)in reciprocity for the suspeby CostaRica of visafee thawas
being chargedtoNicaraguan citizens.
378See, for instance, Costa Rica's Note 12 August 1998, which directly ignores theconditions
imposedby the Cleveland Awardon navigationby revenueservicevessels.(CRM,Vol. 3Annex
50.) See also the Yearbookof the Ministryof Foreign Affairs, 1998-at33; the speech by
Costa Rican ForeignMinisterRobertoRajas (OAS, 8 March 2000): "A vessel belongingto the
revenue service, intended by its very natuto undertake tasks such as the prevention of
smuggling,illegalimmigrationand other aspects relatedto border controlnecessarilyrequiresthat
governmentagents aboard carry protective equipment.Otherwise,hocanthey be expectedto
fulfill thesetasks?"CM, Yol6,Annex228.
"' SeearticleiLa Prensa,dated18February 2005,title'Tovarreconocesobennia nica"(Tovar
recognizes NicaraguanSovereignty).NCM,Annex82.
144 * '
objetos de cornercio" (with a&!es of trade/objects of commerce) in the
context ofthe Nicaraguan sovereignty over thecourse ofthe river.
4.3.32 The transport of passengers is excluded from the right of free navigation
with articles of trade conceded to Costa Rica by Article VI of the 1858
Treaty.
43-33 The right to land at any part of the banks of the San Juan River is
associatedto therightto navigate with articlesof trade.
4.3.34 This Chapter has also shownthat under the 1858Treaty as interpreted in
theCleveland Award, CostaRica's rights of navigation on the San Juan
kves hingeon her navigationwith articlesof trade, Without navigationof
the latter kind,Costa Ricaenjoys no right of navigation with vesselsof the
revenue service. The only navigation that is permissible by such vessels
/ under the Award is navigation that is "relatedto and connected with"
Costa Rica'senjoyment of navigation with articles of trade, or navigation
that"may be necessary to the protection of said enjoyment." Since Costa
Rica does not engage in significant navigation with articles of trade, she
has no right to navigate with vessels of the revenue service or, ufortiori,
I
any other kind of public vessel. From all that appears, Costa Rica has not
attempted to navigate on the SanJuan with revenue vessels since 1886.
There being no need for the only kind of navigation that is permittedby
the 1858 Treaty and the Cleveland Award, Costa Rica attemptsto create
new rights of navigation for entirely different kinds of public vessels,
servingcompletely different purposes, andseeks to re-interpret thephrase
"conobjetos de comercio" to permitcarriageofpassengers. Noneof these
rights is recognizedin the 1858Treaty or the Cleveland Award. Thus ifCosta Rica is to navigate on the San Juan iways that are not authorized
by these two sources of the law governinghernavigational rightson that
Nicaraguan waterway, it must be with the express permission of
Nicaragua.5.1.3 The legal basis for the "customary right"to fish thusclaimed by Costa
Rica is unclear.One thing is apparent: the Claimant does not allege that
thisalleged right (andthe correlative obligation bearing uponNicaragua)
follows from the 1858 Treaty of Limitsas interpreted by the Cleveland
Award. In this respect, CostaRicamakesthe following assertions:
- first, such a customary right would "not be uncommon for the
inhabitantsof border regions in~frica""';
- second, it would have been "recognizedin cases in which the
boundary delimitation entirely lefariver toone of the neighbours 3,387.
,
- third,"thispractice" would correspond"with the first regime of the
San Juan everapplied" 38g as establishedby the RoyalCharter of 29
November 1540;and
- fourth, it would have "been respected by Nicaragua until very
recently"383.
5.1.4 This invocation of a "customaryrightto fish" contradicts Costa Rica's
own approachin the present case, according to which the otherrights
associatedwith the navigational rights can only "arisefrom the same
treaty [i.e. the Treaty of Limits] or from other international binding
in~trurnents"~".Furthermore, in the diplomatic exchanges havingtaken
place between NicaraguaandCosta Rica,the latter constantlyasked for
therecognition of "neither more nor less rights than those establishedby
386See ICJ, Judgment13 December 1994,Kasikili/SeduduIsland,ICJ Report1999,p.1094,
ara.74- Italiadded see CRM,p.89, paras.4.124-4.126.
$'CRM, p.90,para.4.127.
3RkRM, p.90, para4.128;see alsop.134,para.5.141Andsee CRM, Vol.2,Annex 1-italics
added.
389Ibid.
'5~CRM, p.87,para.4.118.
198 .i,:'
. I
the Treaty [of ~imits]"~~'.The "customary right" to fish clearly falls
outside this scope and cannotbe deducedin any way fromthe 1858Treaty
of Limits.
5.1.5 This being said, Costa Rica does not establish even a mere "customary
right" to fish in the river. As recalled by the Court, "[tJhe Party which
relies on a custom of this kind must prove that this custom is established in
such a manner that it has becomebinding on the other Party, [The Costa
Rican Government in this case] must prove that the rule invoked by it is in
accordance with a constant and uniform usage practiced by the States in
question,and that this usageis the expressionof a rightappertaining to the
State granting [the alleged right] and a duty incumbent on the territorial
State. This fallows from Article 38 of the Statute of the Court, which
refers to international custom 'as evidence of a general practice accepted
,, laW,,,392.None of the above allegations, in itself or in combination with
the others, iscapable of establishing such a custom.
5.1.6 It is true that, as a matter of courtesy and convenience, Nicaragua has
usually tolerated a limited use of the San Juan for non-commercial fishing
by Costa Rican riparians,but thistolerance cannot be seenas a source of a
39'SeeNoteof the Ministerof Foreign AffairsofCosta Rica to the Ministerof Foreign Affaofs
Nicaragua, 19 August 1886,CRM, Vol. 3, Annex 33, atp. 224; Note of the Foreign Affairs
Secretariat of Costa Ricto theMinister ofForeign Affairs of Nicaragua, 11 November 1886,
NCM, Annex 30; Note from the Ministry of Foreign Affairsand Worshipof Costa Rica to the
Vice-Ministerof Foreign Afiirs of Nicaragua, 12 August 1998, GRM,Vol. 3, Annex 50, at p.
311; Note from the Costa Rican Minister of Foreign Affairs and Worship to the Nicaraguan
Ministerof ForeignAffairs,28 September2005, GRM, Vol. 3,hnex 80,at p. 437; Communiqui
of theMinistryof ForeignAffairsand Worship,28 September2005,NCM, Annex 83; Text from
the National Radio and Television Chain address by the President of the Republic, Dr. Abel
Pacheco -2 October2005,NCM,Annex 84.
392ICJ,Judgment,20November 1950,Asylum Case,ICJReports 11450p,276.
199 legal right3" nor can it imply the recognition of a "right to fish" for
commercial purposes:
as indicated above394,Costa Risa has constantly accepted that it
has no rights except those stemming from thetreaties andnot from
customary law;
- Nicaragua has accepted, as a matter of courtesy, subsistence or
leisure fisheryby Costa Rican ripasians;
-
but this tolerance was made in conformity with the spirit of
cooperation and good neighbourhood which has characterized the
relations between the two sister Republics.
As is well known,"[nlot only must the acts concerned amount to a settled
practice, but theymust also be such or be carriedout in sucha way, as to
be evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it.The needfor sucha belief,i.e., the
existence of a subjective element, isimplicit in the very notion of the
opiniojuris sivenecessitatis.The Statesconcerned musttherefore feel that
they are conforming to what amounts to a legal obligation. The frequency
or eventhehabitualcharacter of the actsis not in itselfenough"'". Inthis
respect, the present case is comparable to the Lotus case where the
Permanent Court found that the practice invoked by France did not
conclusively show that the States concerned "recognized themselves as
being obliged to" abstainfrom acting in theway allegedby France; "for
Andif itwere -qsrodnon -, itwouldresultina rightnot forCostaRicabutforhernationals;if
itwereso, CostaRicawould have tobe seenas actingontheirbehalfonthegroundof diplomatic
protection. The conditiofsr exercisingdiplomaticprotectionare clearlynot fulfilled in the
resentcase. SeeGeneralConclusions.
'N NCM,para. 5.1.4.
3'5ICJJudgment ,0February 1969,Norfh SeaConfinenfalShelCases,TCJ Reports 1469p.44,
para.77.
200 ? >
only if suchabstentions were b&ed on theirbeingconsciousof having a
duty to abstain would it be possible to speak of an international
5.1.8 Similarly,in the presentcase, besides the fact thatCostaRica has only
produceda handfulof affidavitsin support of thepracticeshe invokes397,
she has certainlynot shownthatthe fishing activitiesin questionwere
acceptedas being the exercise of a right belonging to the Costa Rican
ripariansof thesouthbankof theSanJuan,
5.1.9 First, it goes withoutsaying thata possiblecustomarysightof this kind
"forthe inhabitants of borderregions in ~fricd""~, couldhave nothingto
do withthe presentcase. It could,in the last event, notbe morethana
"regional" customapplyingsolely to Africa.Andeven as far asAfrica is
concerned,such a rightisa mereinventionof Costa Rica:
- if itexisted at all in a remote past, itwas not in an inter-State
context;
- theextract of theKusikiliJSedudu IslandcasequotedbyCostaRica
in supportof herallegations39h 9asstrictlynothingincommonwith
thepresentsituation;400
396~~~~Judgment7 , September1927,Lotus,SeriesANo 10,p. 28.
397~eeCRM,Vol. 4,Annexes105to 109.
3P8See ICJ,Judgment,13 December1999,Kasikili/Se suanu,ICJ Reporbs, 1999p. 1094,
ara. 74.
'W CRM, p.89,para.4.124.
400Thewholepassagereadsas follows:"Whileit is truethattheearlymapsof the regionplaced
theboundaryaround KasikilifSedudIslandinthe southernchannelof the Chobe,none of them
officially interpretedthe 1890 Treaty(see paragraph84 below), andthe evidencewouldtend
ratheto suggestthattheboundarlinewas shownas followingthesoutherncharnelas a resultof
theintermittentresenceontheIslandofpeoplefromtheCapriviStsip.However,thereisnothing
thatshows,intheopinionof theCourt, thathispresencewaslinkedto territoriclaimsby the
Capriviauthoritie.tis, moreover,notuncommonfortheinhabitantof border regionsinAfrica
201 - nor has the passage of the Decision of the Euitrea-Ethiopia
Commissionalso quoted by Costa LXica4O m1;reover and more
generally,inneither decision is there any mentionof fishing rights;
-
it can certainty happen that fishing rigare expressly mentioned
in treaties, and especially so when the river in question is the
common boundary between the States concerned,where there can
be no doubt that the populations of both banks have a right to fish
in the commonriver,as is thecase of the 1434Agreement between
Tanganyikaand Rwanda-Urundialso quoted by Costa ~ica~'~,but,
this again has not much to dwith the present case, except, maybe,
a contruriosince such a treaty right applies to rivers forming the
boundary between two Statesand sharedby them.
5.1.10 Second, the same holds true inrespectto Article 8 of the Protocol on the
Border between Guineaand Sierra Leone concluded between Franceand
Great Britain on 1July 1912 also quotedby Costa Rica. According to this
"In the part of the Moa included betweencairns XV and
XVI the riverand theislandsbelong entirely to France. The
inhabitantsof thetwo banks have, however, equalrights of
fishingin this part'*03.(Itaadded)
to traversesuch bordersforpurposesof agricultugrazingwithoutraising conceonthe
artof theauthorioneeithersideof theborder" (ICJRep1999,p. 109para.74).
' 'RI ,p. 89, par4.L25Thewholeparagraphfromwhichthisextractis pan reads:"Inthese
circumstancetheCommissionholdsthat thedeterminatof theboundarywithinriversmustbe
deferred untitlhedemarcatstage.Inthe meantime,thewilbe no changeinthestatuquo.
Theboundaryinriversshoulbe determineby referenceto thelocationof themainchannel;and
this should identifiedduringthedryseason.Regardshouldbepaid to the custrightof
the Iocalpeoytohaveaccesstotheriver."(thepassagequotedbyCostaRicais initalics).
40CRM,pp.89-90,pan. 4.126.
40CRM, p.90, para.427;see9 MarlensNRG (3*) 805.
202 I_' ' >'', '1 I
. ..;
",
5.1.11 The word "however" is teIl;ng: .,+t- it shows that while the normal
consequenceof leaving the river to Francealone would have been thatthe
British subjects would normally not have had the rightto fish,theygot it
as a treaty right. By contrast, the 1858Treaty of Limits between Costa
Ricaand Nicaragua does notprovide for such a right.
5.1.12 Third,the import of the provisions of the Royal Charter of 1 540404 are a
moot questionsince it was replaced in 1573by a RoyalCharterof Philip
11405 which substantially modifiedthe territoriallimits of both provinces
and fixed the limits which remainedin force during the remaining colonial
perioduntil independence in 182 1. Thereis nothinginthis laterinstrument
that could be quoted in order to justify any common fishing or any
common use of the River by both provinces - quite to the contrary, the
Sovereignaccordedto Diego deArtieda"license andauthority to discover,
settle and pacify the aforesaid province of Costa Rica" only, "on the
northernport, from the mouths ofthe Desaguadero, which are parts of
NicaraguaJAo6 (emphasis added). This clearly left the River under the
authorityof the sole province ofNicaragua.
5.1.1 3 Whatever might have been the situation between 1540 and 1573, it was
deeply modified, and fixed without any change up to the present time, by
the Treatyof Limits of 1858. As shown in Chapter 2 above, said Treaty
put an end to any Costa Rican claims and recognized the fulIsovereignty
ofNicaraguaover the river, with the sole exclusion of the limited rights of
navigationconceded to Costa Rica.Thoserights do not include any fishing
rights in favourof Costa Rican nationals.
404~~~, Vol.2, Annex 1.
405~eesupra,para.1.2.10-1.2.12(.)
%NCM,Annex86.5.1.14 A final word on the question of the right to fish by Costa Rican riparians
of the SanJuan. Costa Ricaclaims inher Memorial (paragraph 4.128) that:
"The right of fishing of the residents of the Costa Rican bankof the San
Juan for subsistence purposeshas been respected by Nicaragua until very
recently, when - after the institution of these proceedings - it began to
prevent theriparians from engagingin it."
5.1.15 Nicaragua wishes to make quite clear that notwithstanding itsrights over
the San Juan River, it has never ordered the prevention of fishing for
subsistence purposes by Costa Rican riparians. Thus, the first part of the
statement by Costa Rica is perfectly trueand simply shows the policy of
good neighborliness traditionallyadopted by Nicaragua. What Nicaragua
does not accept is that she has prevented fishing for subsistence purposes
m .
even for the short period involved since the instituting of these
proceedings in September2005.
5.1.16 Another question entirelyis the matter of fishingfor commercialpurposes.
On these matters the internal regulations of Nicaragua are naturally
applicableand are generally enforced.
Section 5.2
Alleged Breachesof an Alleged Right to Re-supply Border Posts
5.2.1 According to Costa Rica, she would enjoy a "right to use the River for re-
supply and relief of personnel in border posts" as a corollaryof her "rights 4,*.'
andobligations to protect cornmei-cet,o safeguard the River and to defend
5.2.2 Nicaragua has shown earlier in this counter-~ernoriap~~,that those so-
called "rights and obligations" had not the scope and object claimed by
Costa Rica, Moreover, nowherein theMemorialis it explained how this
so-called rightto re-supplyandrelieve personnel inthe borderposts would
necessarily ensue from the rights and obligations emerging from the
treaties inforce. On the contrary:
- the obligation imposed on Costa Rica by Article IV of the 1858
Treaty to contribute to the security of the San Juanand to its
defensein case of aggressionis expressly limited to the bank of the
river;
-
neither this obligation nor any other argument induced President
Clevelandto accept, in his Award, that CostaRica was vested with
a "right of navigation of the river SanJuanwithvesselsof war"409;
and,
- Costa Rica can of course complywithsuch an obligation by other
meansthan byparading with weapons on a River that isunderthe
territorialsovereignty of Nicaragua alone4".
5.2.3 Apart from alleging a "corollary" of rights and obligations to protect the
river, Costa Rica does not endeavour to base this alleged "right" to re-
supply the border posts by using the River on any other legal argument.
@'CRM,p. 85,para,4.107;see alsopara.4.109,p.87, para4.117,orp. 130,para.5.128.
4" Seeabove, paras.4.2.28-4.2.35.
409CW, Vol.2,Annex 16,p.98, "'paragrapShecond,Dispositi'.
4'0Seeabove,para.3.2.9.
205 Hardly does Costa Rica mention en passant a so-called"acknowledgment"
of this alleged right "through the agreement signed by the Nicaraguan
Minister of Defence in Managua on 30 July 1998"41',and implythat this
could have been a customary right. Neither argument (if they must be
treated as such)is well founded.
5.2.4 As for the 1998 "agreement"4'2,Nicaragua has shownearlier in the present
~o~lnter-~ernofiaP'~ that this joint-communiquk between authorities not
vested in any case with full powers was finally never accepted by the
Nicaraguan ~overnment~'~and never enteredinto force - even under the
hypothesis that it was conceived as a treaty which was not the case.
Moreover, even if this document could be of any legalsignificance, quod
non, the right claimedby CostaRicawas far frombeing unqualified:
- a previous notice from there-supplying vessels was to be given to
the Nicaraguanauthorities;
- the crew could only carry their "normal weapons" ("armus de
reglamento")andnomentionwasmadeof the transferof weapons
toor fromthe re-supplied posts or theirpersonnel;
- they were to be accompanied, at Nicaragua's discretion, by
Nicaraguan milita$15 authorities ("autoridodes militares
nicurugiiense'3 and
- ought to report to the Nicaraguan posts throughout theirjourney
along the SanJuan River.
"'CCRM ,. 85para.4.107.
4'CRM,Vol. 2, Annex28.
4'NCM,paras. 3.2.9-3.2.10.
4'%~~, Annex 68.Resolutionof the Republicof Nicaragua'sNationalAssemblyon the Joint
Cornmuniqut Cuadra- Cizano30 July1998.OrdinarySessio# 5. Managua,18August1498.
4'5Theword "mi1itar)("militaresismissingin theEnglishtranslationprovidedby CostaRica
(seeCRM, Vol. 2,Annex28,pp. 195and197,Thirdpoint,para.1).
206- established custom.If thishas happened in the past (as it could happen in
the future) then it has beenso with the consent of Nicaraguanauthorities,
as an act ofpure tolerance,not as of right.
5.2.8 This"tolerance" was neverbased on a general consent nor didit amount to
acquiescence by the Nicaraguan authorities. Costa Rica's President,
Miguel Angel Rodriguez, recognized that the "modus operandi"consisted,
in the relevant period, in allowing Costa Ricanpolice forces "to navigate
on this waterway....having previously informed the Nicaraguan
authorities in each case'42! Similarly, the President of Nicaragua
described the modus operandi in question as "the cooperation that
Nicaragua offered Costa Rica for the purpose of provisioning their border
posts in the lower part of the San Juan River, thus allowing the Costa
Rican police authorities to navigate that part of the river, with the
acquiescence, in each case, of the Nicaraguan authorities [con la
adquiesencia,en cada caso, de las autoridadesni~ara~iienses]'~~I't.will
be apparent that the practice invoked by Costa Rica was thus only
followedon a case by case basis, and, in each case, with the express
consentof the competent territorial sovereign,i.e. Nicaragua.
5.2.9 Indeed, Costa Rica insists that the question of re-supplyofpolice posts
must not be presented in terms of a need but of a so-called righ1425A.s
shown before, no such right exists,But even froma factual point of view,
it is not true that "there are no other practicable means to achieve [the
same result] by land" or air. As often recalled by Nicaraguan
423CRM, Yol. 3,Annex64. Letterof 28Jun2000,(emphasisadded).
424CRM, Vol.3, Annex 65. Letterof 29 Jun1000,(emphasisadded);see ako CRM, Val. 3,
Annex67. Letterof3August 2000.
425SeeCRM, p.130,para5.128.
426CRM,p.85, para.4.108.
208 ' I L .
,lt-.a
Costa Rica possesses all the necessary roads or good tracks
and airplane landing strips to that effect, not to speak of evident
possibilitiesto re-supply someless easily accessibleposts by helic~~teq~~.
5.2.10 It isalso remarkable, in this regard that the Costa Rican authorities were
able to re-supply her border post during the rather long periods of time
during which the modus operandi did not operate and a re-supply by the
waterway was not possible. Also of interest is that Costa RicadeliberateIy
decided not to raise the issue of navigation to re-supply her border posts
and to abstain from such activities duringthe three years during which the
situation was frozen following the Alajuela Declaration in 2002~~~I .n I
connexion with the conclusion of said accords, Costa fiica's Minister of
ForeignAffairs, Mr. Tovar, underlined that "amd civil guard navigation
will not be an issue to be dealt with during the period mentioned in the
above paragraph [i.e. three years]''30.This shows that, first, the Costa
Rican authorities themselves were not convinced aboutthe existence of a
"right" to navigate the river for the purpose of re-supplying the border
posts43',and, second, that there exist otherwaysandpossibilities to secure
the re-supplying.
427
Seethequotes inCRM, p. 86,paras.4.111-4.113,orpp. 129-130,paras.5.126-5.127.
428NCM, Annex 91. Affidavitof Amy ColonelRicardoSQnchez Mtndez,("He knows thatthe
CostaRican CivilGuardusuallyre-suppliesitsposts by land,forwhich purpose theyhavefeeder
roads,andhehas even observed thata highway isbeingbuiltintheirterritory,runningparallelto
theSanJuanRiver").
429CRM, Vol.2, Annex29.
430NCM, Annex 45.Note DM-300-02,26September2002.
"' SeealsoPresident Pacheco'spublicdeclarationof 19May 2002; "Wemustunderstandthatitis
absurd thata countrywithno armyis fighting over thepassageof armedpersonson a navigable
riverthatis dryingup..."Lo Nacidn, 19May2002,NCM, Annex 81.
2095.2.11 Costa Ricancomplaints that supply and reliefof personnel atcertain police
posts are very difficult or even seem therefore to be greatly
exaggerated. Now, admitting that the prohibitionby Nicaragua of the use
of the river for re-supplyingpurposesmakes this activity more difficult for
Costa Rica, it would not entail any responsibility for Nicaragua. As
explained by the International Law Commission in a different context, in
its commentaryof Article 18of the Articles on State Responsibility,on the
effect of coercion of another State, "[ilt is not sufficient that compliance
with the obligation is made more difficult or onerous ... It is not enough
that the consequences of the coercedact merely make it more difficult for
the coerced Stateto complywith theobligation''33.
5.2.12 Indeedthis does not correspond to the exact situation in the present case,
since (i) Nicaraguahas no intention to coerce CostaRica whatsoever; and
(ii)the decisions of the Nicaraguan authorities do not infringe any
obligation bearing upon them. However,rnuturismuttandis,it is certainly
true that the same idea can be transposed here: Costa Rica cannot
complain of the exercise by Nicaragua of her sovereign authority overthe
waters of the SanJuan river insofaras this exercise doesnot breach a right
belonging to her neighbouring State, even if it might make the re-
supplyingor relief of somepost guards"more difficult or onerous".
-
432CRM,pp. 127-128p, ara5.121-5.122.
433Reportof theInternationlaw Commissionof theWorkofits Fifty-ThiSession,(23April1
June and 2 July-IAugust2001), Oflci Rulcordsolthe GeneralAssembly,Ffw-SixthSession,
Supplemenl No. O(A1561 11,p. 166,para.2of thcommentary.
210 seiti;;, 5.3
Alleged Breachesof the Alleged Right of Costa Rican Vessels not to Carry
the Flag of Nicaragua in the Waters of the San Juan Ever
5.3.1 The Government of Costa Rica has expressed its disagreement with the
requirement of Nicaraguan authorities that Costa Rican vessels should
carry the Nicaraguan flag while navigating the San Juan River. In the
Memorial, she affirms that "Costa Rica's perpetual rights (..) entitle
Costa Rican vesselsto carry the Costa Rican flag while navigating.. ,434
5.3.2 International practice confirms that vessels authorized to navigate the
territorial watersof another State - and such is the case of the San Juan
River, should carry the flagof the territorial orrecipient country.
5.3.3 Nicaragua has always maintained that such obligation is derivednot only
from international courtesy, but from international practice. In a Note to
the Governmentof Costa kca, the Governmentof Nicaragua recalls that:
"...as regards internationalmaritime navigation, every ship
entering the sovereign waters of another State raises the
flag of that State, in keeping with international custom and
courtesy, so that the latter is hoisted higher than that of the
vessel's national flag.This act is considered one of respect
and recognition of the exercise of sovereignty on the said
waters. Ifthe vessel does not hoist the flag of the State in
whose waters it finds itselfit maynot raise its the national
fagw435.
434ClW, para.5.91.
435CRM,Vol.3, Annex 72.NotefromtheMinisterof ForeignAffairsofNicaragua tothe Minister
of ForeignAffairsand Worshlpof Costahcaon 3 August200 1.SeeaIsoNCMpara. 1.3.33.
2115.3.4 Incondttsiora,it appears that none of therights other than the right of free
navigation on theriver SanJuan de Nicaragua "with articles of trade [con
objetos de comercio]" alleged by Costa Rica existsand, aj~rtiori, belongs
to that country:
(i) Nicaragua has tolerated fishing by Costa Rican residents for
subsistence purposes but this tolerance has not created any
customaryright for the Claimant, nor does such a right exist
undergeneral internationallaw;
(ii) similarly, during certain periods, Nicaraguahas accepted the
re-supplying of certain Costa Rican border posts by the river,
but this was done on a case by case basis and, in each case,
with the express consent of Nicaragua, which keeps full
sovereigntyoverthe river;and
(iii) for this very reason, Costa Rican boats must cany the
Nicaraguan flag when they navigate on the river San Juan de
Nicaragua. COSTARICA'SRESPONSETO NICARAGUA'SPOLICYOF
COOPERATIONAND GOODNEPGHBOURLINESS
TheAttemptsby Costa Rica toRevise the 1858 TreatybyIndirectMeans
6.1.1 Nicaragua has long had a policy of cooperationwith her neighbors, has
regularly extended courtesies tothem, and followed a principle of good
neighborliness toward countriesin the region. Nicaragua follows these
policies because she is convinced they are principled and right, not out of
any sense of legal obligation. UnfortunatelyC , osta Rica has repaid the
good will shown by Nicaragua by repeatedly, in a variety of sectors,
engagingin patternsof conduct designed to enlarge her existing rightsor
even to establish newones,
6.1.2 This Chapter will offer illustrations of instances in which Nicaraguahas
attempted to be accommodatingtoward Costa Rica, only to be repaid by
assertions of new rights by the latter (Sectioj.1It will then focus upon
the issue of "facilitation of traffic on the river" raised by Costa hera in
~ernoriul.~~~
Section 6.1
Nicaragua'sGeneralPolicyof Cooperation
6.1.3 This Section will offer, for purposesof illustration, two examplesof the
way in which Costa Rica responds to Nicaragua's policyof cooperation
and good neighborliness. The responses by Costa Rica are part of a
43CRM,paras.4.121-4.123.
213 strategydesignedto enlarge her rights of navigation and other formsof use
of the San Juan de NicaraguaRiver. In these instances and others, Costa
Rica has taken advantage of Nicaragua's goodd-aaith efforts to
accommodate Costa Rican requests. Costa Rica'spattern of conduct, or
modtrsoperandi,in these cases has been as follows: She first requeststhat
Nicaragua grant her permission, within the frameworkof courtesiesand
cooperation, to engage inagivenform of conduct on the river. Nicaragua
grants the requested permission. This process is repeatedseveraltimes.
Costa Rica thenengages in the conduct without requesting or receiving
any form of permission. Nicaragua responds by enforcing her laws and
protecting hersovereign rights under the 1858 Treaty and the Cleveland
Award. Then Costa Rica accuses Nicaragua of violatingthe 1858Jerez-
CafiasTreaty.
6.1.4 This Section will describe two instances of this pattern of conduct, one
relating toarmed navigation on the San Juan and the other involving an
annual pleasure-boating rally.In each of these cases, Costa Rica has
attempted to convert activities it could engage in onlwith Nicaragua's
permission intoactivities may engage in as of right.
A.ARMED NAVIGATION
6.1.5 This story begins with the aftermath of the Nicaraguan civilstrife in the
1980s and ends with events in the early part of this century.
Unfortunately,however,the pattern of Costa Rican conduct described here
hascontinued. ' sp~'l*
6.1.6 Inthe context of the security-relatedproblems relating to the remnants of
the irregular forces, on8 September 1995 the Nicaraguan Army and the
Costa Rican Ministryof Public Safetysigned a Joint Communique,
"[wlith a view to complying with the National Defence
missions, in addition to those of the Defenceof Territorial
Integrity, Independenceand Sovereignty conferred by both
countries' respective Constitutions and, with the aim of
joint operations that contributeto the peace and stability of
the border sectorscommonto both nations.'A37
6.1.7 By virtue of this Communiqub, the forces of the two States agreed to
"coordinate, as of this date, the operational plans that involve our
authorities and allow for the necessary development of joint, parallel
patrolling at the border of both countries.. .fotlowing the exchange of
informationandplanning carriedoutby both parties.''38
6.1.8 It willbe noted that this Communiquk contemplates normal activities
regarding neighborly cooperation in border areas. It in no way focuses
upon the SanJuanof NicaraguaRiveror implicatesitsjuridical regime.
6.1.9 However, after receiving appropriate requests from the Costa Rican
Authorities, Nicaragua allowed vessels of this State to supply her border
posts during the period 1995-1998. These permits were suspended when
Costa Rica began to abuse of this relaxation of controls by, among other
things,patrolling the Riverin orderto interceptillegalimmigration.
437
CRM, Vol.2, Annex27. Joint-Communiquk C,uadra Lacayo-Castro Femandez, 8 September
1995.
43lbid.
2156.1.10 It is interesting to note that when Nicaragua suspended the navigation
permits it had been granting Costa Rica, due to the manner in which the
limited permission to navigate had been violated, the Yearbook of the
Costa Rican Ministry of Foreign Relations and WorshipAffairs for 1948-
1999announced that It would prohibitthe navigation of vessels belonging
to the Nicaraguan armed forceson the Colorado ~iver.~~'This confins
Costa Rica's attitude that navigation on the San Juan to supply border
posts was permissive only, not a matter of right, for which Costa hca
could extend or deny like courtesies with respect to navigation on the
ColoradoRiver, bothbanksof which arein CostaRican territory.
6.1.11 Despite Nicaragua's withdrawalof permission, in P998 the Ministry of
Tourism of Nicaragua discovered a heavily armed Costa Rican patrol
navigating on the lower San Juan River without permission from
Nicaragua. The press described this situation under banner headlines on
their frontpages.
6.1.12 In his speech to the Organization of American States in 2000, quoted at
length in Costa Rica's ~ernorial,4" Minister Rojas of Costa kca also
made reference to the invasive functions of these vessels, which are
without any basis in the 1858Treaty or the Cleveland Award, including
the prevention of "illegal immigration, drug traffickingand other aspects
involved in border cont~ol,'"~'using Nicaraguan waters. As noted earlier,
Costa Rica is of course entirely free to take whatever measures of
.
439Yearbookof Ministryof foreign Affairsof CostaR1998-1994 ,.35.AnnualReport of the
Ministryof ForeignAffairsand Worship, presentto the Legislative AssemblyiMay 1999.
Robeno R0JasLhpez,Ministerof ForeignRelationsandWorship.NCM,Annex 78.
4 4 0 ~ para.4.93.
CRM, Vol.6, Annex2211O. rdinarySessionof theOAS8 March2000, approvedinthesession
of 18May 2000.
216 ;;&'
prevention she deems necessary '~nrespect of these illegal activitie- but
within her own territory, not inthatofNicaragua. As indicated in Chapter
3,Section 1,mere conveniencedoes not create rights.
6.1.13 On 15July 1998,the Minister of Home Affairs,Police and Public Safety
of Costa Rica, Juan Rafael Lizano, sent a note to the Nicaraguan Minister
of HomeAffairs,Josk Antonio Alvarado, once again raising thematter of
re-supplying and re-staffingborderposts:
"our public forces have been hindered from navigating on
the San Juan River carrying regulation weapons in
activities related to the provisioning and changing of the
guardat theposts located on the right bank of said riversin
Costa Ricanterritory.. .I reiterate that,.the only means of
access in some cases is the San Juan River, reason for
which the activity of provisioning and changingour border
guards finds itself absolutely impaired by the unilateral
decision takenby Nicaraguan authorities.Asyou know, the
inhospitable and dangerous border zone obliges our police
to carry regulation weapons for their personal safety and
thatof the vessel carryingsupplies.'42
6.1.14 The note goes on to say that "the vesselsused for the activities described
earlier do not bear artillery and the weapons used by ourpolice officers
formpart of their endowment of personal supplies, and in no way run
counter to the bilateral internationalnorms in force regarding the use of
this However, neither here nor elsewhere in the note did
Minister Lizano attempt to characterize these craft as vessels of the
revenue service or link their activities with articles of tradethe sine qua
Pronfor navigation by Costa Rican public vessels on the San Juan. Once
again, the argument seems to be that because Costa Rica decided to
442NCM,Annex42.Note of 15July 1998.
44Ibid.
217 establish border posts at locationswhere "the only means of access. .. is
the San Juan River", Nicaragua must allow Costa Rica to navigate on the
river with public, armed vessels to re-provision them. But the fact that
Costa Ricahas putherself in adifficult situationdoes not oblige Nicaragua
to come to her aid, much less create rights in Costa Rica to navigate in
Nicaraguan territorywhere none othenvise exist.
6.I.15 On 28 August 1998 the interim Nicaraguan Minister of Foreign Affairs
reminded his CostaRicancounterpart of the limitednature of Costa Rica's
right of navigation on the SanJuan: '%ymeans of the Jerez-CafiasTreaty,
Nicaragua granted Costa Rica a right of free navigation con objetos de
cornercio [with articles of trade], an not an unrestricted rigAny form of
navigation undertaken by Costa Rica in the waters of the SanJuan River
that does not correspond to navigation con objetos de comercin /kith
,9444
articlesof trade]...shouldbe expresslyauthorizedby Nicaragua.. .
6.1.16 The President of Costa Rica appears to have accepted in the year 2000 that
this was the correct position. On 28 June 2000 Costa Rican President
MiyuelAngel Rodriguez wrote to the Presidentof Nicaragua, stating that:
"...Costa Rica's intention in this respectis that the modus
opemnclithat functionedtemporarily prior to July 1998,by
which itwas allowed to navigate on this waterway with
vessels carrying Costa Rican police, having previously
informed the Nicaraguan authorities in each case, be
reestablished. For itsparts, Costa Rica is more than willing
to not navigate the San Juan River with police carrying
their police equipment without having informed the
444
CRM, Vol.3, Annex 51. Carlos RobertoGurdiantoDon RobertoRojasLbpez,28 August
1998.
218 .*.,: ,+
authorities of Nicaragua in that area previously, each time
,1445
they patrolthe SanJuan ....
6.1.17 The President of Nicaragua replied positively on the next day, 29 June
2000, statingthat he was:
"willing to reestablish the cooperation that Nicaragua
offered Costa Rica for the purposes of provisia~~ingtheir
border posts in the lower part of the San Juan River, thus
allowing the Costa Rican police authorities to navigate that
part of the river,with the acquiescence, in each case, of the
Nicaraguan authorities. Saidnavigationwould not involve,
as it did not do previously, the exercising of any act of
jurisdiction, neither will it adversely affect Nicaragua's
authority as territorial sovereign.
Nicaragua'swillingness to this effect is basedon the desire
to strengthen the ties of friendship and cooperation that
shouldprevailbetweenour sisterand neighbouring nations,
which share common historicba~k~roun~.'~~
6.1.18 The Nicaraguan President thus made clear Nicaragua's willingness to
renew the courtesies it had previousIy extended, ex gratia, to Costa Rica,
while being carefulto state explicitly that Nicaragua's permission would
be required in each case, and that the navigation in questionwould not
involve the exercise of any jurisdiction by Costa Rica on the river or
otherwise impairthe full exerciseof Nicaragua's sovereignty.
445CRM, Vol. 3, Annex64. PresidentMiguel Miguel ~n~e1 Rodriguez to PresidentArnoldo
AlemanLacayo, 28 June2000.
446CRM,Vol, 3, Annex 65.6.1.19 Whilenothing came of it immediately,447 the exchange of notes between
the two presidents holdsseveral lessons. Firs ttePresident of Costa Rica
accepted in his note of28 June 2000that CostaRicadidnot have a right to
navigateon the SanJuan with"police and their police equipment" without
informing "Nicaraguan authorities...each time they patrol the San
~uan."~' Indeed, in a later note he stated, referring to the rights of Costa
Rica and Nicaragua under the 1858Treaty and the Cleveland Award,that
"since 1838 nothing has occurredto change this legal ~tatus'~~hecond, it
is clear from the 29 June 2000 note of the President of Nicaragua that
Costa Rica had no right to navigate on the San Juan for the purpose of
provisioning borderposts but that Nicaragua was willing to consider
allowing Costa Ricanpolice authorities to travel on the lowerSanJuanfor
the purpose of provisioning the posts on that part of the river so long as
they were given permission in each case by the Nicaraguan a~thorities.'~'
And thir indCosta Rica the exchange of notes between the two presidents
was submitted to the Fourth Constitutional Court, which indicated that it
foundnothing inthe note of 28 June 2000 sent by PresidentRodriguez that
rancounter to Costa Rica'sposition:
"VIII. - Conclusion. On the basis of the foregoing
arguments, this Court concludes that the diplomatic note
447See thenote of thePresidenof Costa Rica tothePresident of Nicaragua 29 July 2000,
CRM, Vol.3, Annex 66, (statingth"ithas still nbeenpossibletoreachan agreementon the
reestablishmentof the modirsoperundi,or on the proceduresby which CostaRica, in eachcase,
would informNicaragua, respectively,of the transit of Costa Ricanpolonethe lower San
Juan.") and the responsethePresidentofNicaraguaof3 August2000,CRM,Yol. 3, Annex67
(stating that "leaving pending situationthat requirpart,the concurrenceof other Powers
of State,inaccordancewithour internallegislation.").
449CRM,Vol.3, Annex 64.
Note of the Presidentof Costa Rica to the Presidentof Niofr29 July 2009, CRM, Vol.
3,hex 66
"'See also the Note of the PresidofNicaragua tothe President of Costa RicaofAugust
2000. CRM, Vol.3,Annex 67, in which the formerindicates t"Said consentin each ofthe
cases, itobe expressedby the nationalauthoritiesfullyexercisingtheirsovereignartributes."
220 ', *,I .",",; , '
I , "
.'
+i: 0
+Jt:te1
sentby thePresidentof thkRepublicof CostaRicaon 28
June 2009 to the President of Nicaragua, is not
unconstitutional,and consequentlydeclares the present
action[of unconstitutionalityw ]ithoutbasis,dismissing it
from the~ourt.''~'
6.1.20 Finally,the rich diplomatic history of the partiesshows that itwould be
entirelyillogical to suppose thata rightof such importanceas one of
armednavigationby CostaRica in Nicaraguanterritorywould not have
been directlyand clearlyestablishedin the Treatyif this had been the
intent of theparties.Thelonghistoryof treatyrelationsbasedon the 1858
Treatybetweenthe two countriesclearlyshowsthatwheneverCostaRica
and Nicaraguamutuallyintendedto granta right, that sight would be
expressly stated. Thus, for example, the 1869 Montealegre-Jimknez
Treaty,in Article 12, 'j2 and the Carazo-SotoTreatyof 26 July 1 8874J3
(neither of which was ratified by ~icara~ua~~~c )ontained clauses
regarding fiscalmatters but clearlyexcludedamed forces.
6.1.2 1 Further evidenceofthispractice of preciseandexplicit statement of treaty
rights is provided by former of Costa Riea Don ficasdo
4s'NCM, Annex 66.
452Montealegre-JimeneT zreatyof 18June1869;Article12 "...The Republicof Costa Rica may
open suchroads even in Nicaraguanterritoryandnavigateon the riversin thatterritory,forthe
purposeof transportinand introducingitsagriculturali,ndustrialandcommercialproductsto the
canal. Nicaragua may mot impede in any wcly whatsoever the opening ofsaid roads, nor the
navigationof saidriversand inthemouthsof theserivers,CostaRicamayestablishcustomsand
warehouses atthe expenseof theState...afterhavinginformedtheGovernmentof Nicaragua; in
no case.however. may CostaRica place armedforces therebutonlytheemployeesnecessaryfor
thecustody andsecurityof thecountry'scustomsand warehouses,andvice versa..."(Emphasis
added).NCM, Annex 8.
453~arazo-~atoTreaty,26 July1887,CRM,Vol.2, Annex 15.
454NCM, Annex 34. Telegramof 28 September1887, from PedroGonzalez,Ministerof Foreign
AffairsofNicaragua ,o theMinisterofForeignAffairsof CostaRica.
455Presidentof theRepublicof CostaRica forthreepresidentialperiods:1910-1914, 1924-928
andfrom1932-1436.
221Jimenez Orearnuno. In his rnemoire Su pensanaiento, President Jimknez
Qreamunowrote of the Cleveland Award:
"The New York [news media] criticizes the decision
because it does not give us the right to navigate on the San
Juan with vessels ofwar. 1 would say that this criticism is
unfounded. The emphasis with which Article 6of the treaty
allocates that Nicaragua shall have dominion and
sovereignp over the waters of the river shows that the
desirewas to establish differences between the rights that
Nicaragua and Costa Rica agreed to have over said waters.
If merchant ships and vessels of war from both Republics
freely and indistinctly navigate.the river, then how is this
shown? What practical effect willbe implied in the solemn
declaration that dominion and sovereignty over the waters
corresponds to Nicaragua? The rest of the article
corroborates thismeaning. It was seen that this absolute
affirmation would take away4from Costa Rica any and all
usage of the river, but because this was not the intention,an
exception was immediately added, stipulating that Costa
Rica would have perpetual rights of free navigation over
saidwaters with 'articles of trade'. If an exception in favor
of vessels of war does not also appear in the article, then
the inferenceislogical:Costa Ricawasnot believedto hold
such right. The argument derived fromArticle 4, about the
obligation assumedby Costa Rica to take part in the river's
defense in the event of foreign aggression, was seen as
much less than conclusive. Costa Rica shatake part in this
defense when theforeseen hypothesis takesplace,
Meanwhile, in full peace, without the slightest risk of
hostilities, to pretend that our ships ofwar navigate the
river in order to take part in a defense provoked by no
attack is to arrive at the subtlety with which the
Nicaraguans have examined the treaty. Through Article4,
Costa Rica was obliged to defend the SanJuan as an ally of
Nicaragua. When has one seen that an ally, being an ally,
purports to have the right, in'the absence of war, to transit with its troops the allied terntory to navigate with warships
?,A56
her interiorwaters or station armadas in herports.
,
6.1 -22 Clearly, fonner President of Costa Rica JirninezOreamuno acknowledges
here not only the limited sense of the rights granted to Costa Rica with
respect to navigation witharticles of trade, but also and especiallythe fact
that Costa Rica cannot claim for herself any other or differentrights that
werenot expressly stipulatedinthetreaty.
6.1.23 To conclude this subsection, the practice and other material reviewed
above demonstrates a recurring pattern of eonduet by Costa Rica that is,
from all external appearances, designed to expand existing rights of
navigation on the San Juan or create new ones. First, CostaRicarequests
permissionfromNicaraguato navigate on the SanJuan in a manner that is
inconsistent with the 1858 Treaty. Then she engages in such navigation
without Nicaragua's permission. Finally, when Nicaragua protests the
latter conduct Costa fica alleges that Nicaragua has violated a right
contained inthe I858 Treaty and the Cleveland Award. But the practice
also shows that each time she has sought to create new navigational rights,
Costa Rica has ultimately accepted Nicaragua's assertionsof her own
rights ,under the Treaty and Award, assertions that Nicaragua has
consistently madewhenever Costa Rica has exceeded her rights underthe
juridical regime ofthe river.
456Don RicardoJirnCnezOreamuno, Supensumiento, EditoriaCosta Rica, SanJose,Costa Rica
1980p. 55.
2236.1.24 Pleasure boating is, of course, a far less serious matter than armed
navigation. Nevertheless, even pleasure boatingis an activity that must
respect principles of sovereignty and territorial integrity. The pattern of
Costa Rican conduct that will be described in this subsection shows how
that country uses even recreational activity to try to create, incrementally,
new navigational rights.
6.1.25 This particular practice began in 1993, when the Nautical Sports
Association (ADENA),a private, non-profit entity,applied to the Embassy
of Nicaraguain San Jost for permission to hold its nautical rally on the
San Juan ~iver.~~'Nicaragua granted authorization by means of a special
document signed by the Nicaraguan Ambassadorto Costa Rica and by the
Director of Commerce, Cooperation and Tourism at the diplomatic
mission,which statedin partasfollows:
"The Ministry of Foreign Affairs acknowledge receipt of
said requestand declaresthat in exercise of the sovereignty
and supreme control that Nicaragua exercises on the San
Juan Rives, and in answer to the request presented, the
Chancellery of the Republic [of Nicaragua], on this
occasion, has decided to grant the corresponding
AUTHORIZATION for the holding of the tourist Rally
with regard tothe Trinidad - El Delta stretch.
Further, it inecessary to inform theCosta Rican Nautical
Association of Sport (ADENA) that it will be the
responsibility of the organizers of the event, as well as of
the participants in it, to properly handle garbage, plastic
waste and oil, to avoidcontamination and any damage to
the environmentinwhichthe competitionwill be held.
45NCM, Annex 39.ADENA notefromJulioMartin (Director)to the Ambassador of Nicaragua,
AlfonsoRobelo27September 1993.
224 i
We hope that in the futur 'kanysimilar request will be
presented sufficiently in advance in order to analyze them
1458
and givean adequate reply
6.1.26 This practice continued for seven years, from 1993 to 1999. On each
occasion, ADENAapplied for the pertinent permits and they were granted
by Nicaragua.
6.1.27 Then, in 2000, ADENA decided to navigate without permission. On 26
October 2000, Foreign Minister Roberto Rojas of Costa Rica denounced
the events which allegedly took place on 21 October, when militarqr
authorities of the Republicof Nicaragua "precluded the realization of the
VII International Nautical Rally Sarapiqui River /San Juan River, on the
waters of the San Juan ~iver.''~~ The note declared that this act
constituted a serious violationofCosta Rican rights to free navigation as
set forth in the Jerez-Caiias Treaty, the Cleveland Award and other
instrumentsgoverning the matter.
6.1.28 This protest of Costa Rica,relating to an activity that had nothing to do
with articles of trade (or even revenue vessels), clearly betrays Costa
Rica's strategy of attempting to transform permission granted in the
framework of cooperation and good neighborliness into an obligation
derivedfrom the 1858Treaty.
6.1.29 In the case oftheannualpleasure boatingrallies, however, theCostaRican
strategy was intempted by a change of government. In 2003 ADENA
458NCM, Annex40. Note of October1993.
4 5 g ~ Annex 44.NoteDM-332-2000,26 October2000.
225 once again applied for permission fromthe Embassyof Nicaragua to hold
its rallyby meansof notes.4GQ
6.1.30 The Government of Costa Rica, which had protested to Nicaragua in the
year 2000, could not possibly have been ignorant of these petitions,
considering that the letters sent by ADENA, such as that dated 8 June
2005;" were sent with copy to the Costa Rican Minister of Foreign
Relations, as well as to the Minister ofPublic Safety, both institutions that
were direct actors intheprotests of theyear 2000. Yet it did not maintain
that thepleasure boats participating in the ADENA rally had any right to
navigate on the San Juan.
6.1.31 To conclude this Subsection, the ADENA case serves once again to
illustrate theCosta Rican strategy of "fabricating" rights. First permission
is requested,then action is taken without permission. Faced by the logical
negative reactionon thepart of Nicaragua,CostaRicathereupon alleges a
violationof her rights underthe 1858Treaty.
6.1.32 This Section hasprovidedillustrations of the manner in which CostaRica
repays Nicaragua's efforts at cooperation and, generally, being a good
neighbor: with a strategy designedto create rightsof navigation on the San
Juan de NicaraguaRiver thatare provided for neither in the 1858 Treaty
4M For example,in a noteddated 14 July2003 ABENArequests "assistance in obtaining the
authorizatioof theGovernmentof yourcountrythroughits different Ministriess,pecificallythe
Immigration andNaturalizationService,thArmy, the Ministryof NaturalResourcesand any
otheryou may considerappropriateL. ikewisewere itpossible,and consideringthatthis is a
sportingeventwe requestthayouintercedeon ourbehalfso we mightbeexemptedfromcharges
forvisas(Migration)andclearanccertificafees(Army)."NCM,Annex 46.
"' ~etter of8 June 2005 from the Presidentof ADENA to Dr. FranciscoFiallos Navarro,
AmbassadorofNicarapa toCostaRca, NCM,Annex44.
226 I ,
"tj,
norin the Cleveland Award. The Sectionhas focused on two categoriesof
conduct - armed navigation and pleasure boating - but others could be
citedas well. In each of these areas, Costa Rica has attempted to convert
activitiesit could engage in only with Nicaragua's permission into
activities it may engage in as of right. The same situation obtains in
respectof the present case. Costa Rica consistently attempts toenlarge the
carefully restricted navigational rights she enjoys under the 1858 Treaty
and the Cleveland Award. Nicaragua's policiesof cooperation and good
.
neighborliness should not be repaid by efforts to acquire rights in her
territory. Certainly, nothing either Costa Rica or Nicaragua has done or
failedto do to date establishes the rights CostaRicaclaims.
6.1.33 More generally, Nicaragua's good-faith efforts to cooperate with Costa
Rica, specifically in the border zone, are illustratedby the Alajuela
Declaration of 26 September 2002, and subsequent related
communications. In her Memorial, Costa Rica acknowledges that this
instrument "was intended to permit other areas of the bilateral agendato
be advanced, regardless of the ongoing dispute relating to the San
~uan'"~, and thatit "was an important step towards improvingbilateral
relation^.'^ I'deed, in the Declaration's Preamble the Foreign Ministers
of the two countries record that they "'Note[]the importance of deepening
cooperation between the two Statesfor the sustainable developmentof the
border region, including the establishment of a specialdevelopment fund;"
and "Bear[] in mind that the strengthening of om good-neighbourly
relations is essential to the energetic promotion of Central American
462
CRM, para.3.44
4bfiid,para.3.45. economic and cultural integrationand the sustainable humandevelopment
,464
of our countries for the benefitof ourpeoples;...
6.1.34 Costa Rica furtheracknowledged, through a note from her Foreign
Minister to the Foreign Minister of Nicaragua of 28 September 2005, that
at the time of the Alajuela Declaration the two countries "agreed to
promote.. . [i~teralia],a Programme of border developmentto strengthen
the economic and social conditions of the inhabitantsof an area that
should always be one of cooperation and never one of confs~ntation."~~~
The Foreign Minister of Costa kica then recognized that, "Today, as a
result of an atmosphere of respect, fraternity and mutual trust, we have
made those aspirations a reality of opportunities,thatwe must continue
(He then proceeded to inform Foreign Minister of
Nicaragua that Costa Rica was bringing the present case before the Court.]
6.1.35 In these communications Costa hca clearly recognizes the spirit of
cooperation and good neighborliness displayed by Nicaragua in relation,
inter aliat,o the border area, extending up to the filing by Costa Rica of
the Applicationin the present case. That spirit, in fact, continues to the
present day. These documents thus demonstrate, contrary to the
impression Costa Rica seeks to create, Nicaragua's sensitivity toward, and
determination to take measures to address, the socialand economic needs
of the population living in the borderarea,including those in the vicinity
of tie SanJuan de Nicaragua River. Some of these measuresare being
taken, intheform ofconcrete projects,and yielding positive results.
4a
AlajuelaDeclaration,Caldera-Tovar,26September2002,CRM,Vol. 2, Annex29.
3"5Notefromthe Ministerof Foreign Affairsof CostaRitothe Ministerof ForeignAffairsof
Nicaragua,28 Sept.2005. CRM,Vol.3, Annex80.
4C*Ibid.
228 - a':\.
. ,.{'
\$fi$.
6.1.36 Unfortunately, Costafica, for her part, did not indicate any disposition to
engage in dialogue concerning the matters referred to in the Alajuela
Declaration. Instead,she only sought an extension of the Declaration and
nevercomplied with the commitment in its paragraph 1 to facilitate the
"free movement across their common border by means of a temporary
entry or exit permit"467 or eliminated thevisa fee as calledforinparagraph
2.
6.1.37 This record suggests, once more, that Nicaragua's efforts to cooperate in
good faith with her neighbor fortheir mutualbenefit havebeen repaid not
with corresponding cooperation by Costa Rica but instead by a single-
minded focus on Costa Rica's interests - here, on the aspect of the
AlajuelaDeclaration that Costa Rica regarded as being to her individual
benefit.
Section 6.2
Nicaragua'sFacilitationofTraffic on the River
6.2.1 Costa Rica contends in her~enaoriar?" that a 1956 agreement between
the two countries provides "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.'*69
This allegation ignores entirely not only the terms of the 1956 treaty but
also its historical contextandits object and purpose, which have to do with
regional security .
4" CCRM , ol.2, Annex29.
468CRM , aws.4.121-4.123.
&'cRM, para.4.122.6.2.2 The impetus for the 1956 treaty was the presence of irregular forces
operating in the territories of Costa Rica and Nicaragua in an effort to
destabilize their respective governments. The Agreement'spreamble
indicates that it was concluded "in the presence of the Chairman and other
Members of the Council of the Organization of American ~tates."~~
Indeed, as further indicated in the preamble, the Council of the OAS,
acting provisionallyas the Organof Consultation, had appealed to the two
Governmentsto signthe Montevideo Conventionon the Rights and Duties
of States in the Event of Civil Also in the preamble, the two
countries "recogniz[e] the effective effortsto bring about peace made by
the Council of the [OAS] acting provisionally as the Organ of
~onsultation"~'~
6.2.3 In short, the preamble of the Agreement makesclear that the object and
purpose of the treaty is to strengthen cooperation in order to preventcivil
strife. There is nothing in the preamble indicating that one of the
desiderata for concluding it was to create any new rights of either party in
the territory ofthe other. In fact, the clear implication isthe opposite, in
view of the Agreement's object of forestalling transborder armed
activities. Forexample, Article 11providesin relevantpart as follows:
"The two Parties shall, in so far as possible and with the
utmost diligence, arrange for the supervision of their
common border as a means of preventing the illegal entry
470
Agreement betweentheGovernmentsof the RepublicsofCostaRicaandNicaraguaPursuant
to Article1Vof the Pactof Amity signed 1nFebruary1949,9 January1956,Preamble,1465
U.N.T.S.233, CRM,Vol. 2, Annex24.
47'134L.N.T.S.45.
472CRM, Vol.2,Annex24.
230 ,,'#
of eitherweapons or armed groups fromthe territory of one
of the Parties intotheterritorof theother.''73
6.2.4 Thefocus
of theAgreement on insurrectionary activitiesis also illustrated
by Article 111,whose first paragraph provides: "Each Party undertakes to
apply the necessarymeasures to prevent revolutionary movements from
being fomentedor fromrising up in its territory against the other
If this is what motivated the parties to conclude the Agreement, why
wouldthey create new rights,in "enterprises which arethe nationalsof the
other art^]'*^^ or otherwise,to transport individuals into their territories?
Sucha motivationis againstall logic.
6.2.5 In addition, the Agreementregulatedsuch issues as territorial asylum and
extradition. Article 11,an excerpt from which is set forth above, also
established a scheme of cooperation betweenthe border authorities of the
two countries. Border Committees were set up, whosefunctions included
coordination of joint surveillance along the common border and
preventionof any incident thatmightdisturb the harmony between the two
States.
6.2.6 Apartfrom the fact that this agreement deals with civil strife and other
forms of armed conflict, not commerce on roads or waterways, the
provision quotedby Costa Rica as the basis for her claimed right, Article I
of the 1956 Agreement, failsutterly to support Costa Rica's contention.
ArticleI reads as follows:
47"RM, Vol. 2, Annex24.
47[bid Article11,ara.1.
47Ibid ArticleI. "The two Parties,acting in the spirit which shoulmove the
members of the Central American family of nations, shall
collaborate to the best of their ability in order to carry out
those undertakings and activities which require a common
effort by both States and are of mutual benefit and, in
particular, in order to facilitate and expedite traffic on the
Pan American Highway and on the SanJuan River within
the terms of the Treaty of 15 April 1858 and its
interpretation givenby arbitration on 22 March 1888,and
also in order to facilitate those transport services which
maybe provided to the territory of one Partyby enterprises
which are nationalsof the other.'d76
6.2.7 It is difficult to see how this provision supports a claimed right in Costa
Rica to transport passengerson the San Juan. The obligation to "facilitate
and expedite trafficon the .. San Juan River within the terms of theI1858
Treaty and Cleveland Award] is just that: an obligation to facilitateand
expediteanytraffic that maytake place on theriver"within thetermsof' -
i.e.,as permitted by - the Treaty and Award. It is not an obligation to
permit traffic that is not allowed by those sources olaw. Likewise, the
obligation to "facilitate those transport servicwhich maybe provided to
the territory of one Party by enterprises which are nationals of the other"
createsno newrights. It is an obligationto "facilitate" services which may
be provided pursuantto thejuridical regime ofthe river.
6.2.8 Costa Rica maintains: "Clearly, the 1956 Agreement imposes an
autonomous obligation ofbest effortsin order to facilitate transport in the
SanJuan on both parties, which necessarily include[s]navigationby Costa
Rican enterprises of transport."477 Unfortunately for Costa Rica, this
argumentdoes not take her veryfar. All it says isthat Nicaraguahas an
"obligation of best efforts in order to facilitate transport in the San Juan"
476
477Rh4, Vol. 2Annex 24.
CRM, para.4.123. ;," 8 .
in respect of vessels that are there - i.e., vessels carryingarticles
of trade, or accompanyingsuch craft. Nicaragua has always done this in
any event, irrespective of the 1956 Agreement, which creates no new
rightsof navigation.
6.2.9 Costa Rica has a propensity to use circumstances of this kind, which are
governed by the Montevideo Convention on the Rights and Duties of
States in the Event of Civil as a vehicle for her efforts to expand
her rights under the 1858Treaty and the Cleveland Award. It is therefore
not surprisingthat CostaRicaseizesupon the 1956Agreementdespite the
fact that it deals with security issues that bear no relation to the 1858
Treaty or the Cleveland Award.
6.2.10 At various places in her Memorial, Costa Rica seeks to leave the
impression that the local population living in the vicinity of the right
(Costa Rican) bank of the San Juan, and others on Costa Rican territory,
regularly uses the river for transportation, and that Nicaragua has allowed
this to occur without requiring that the persons in question obtain
permission.479
6.2.11 This is not the case. Consistent with the 1858 Treaty and the Cleveland
Award, Nicaragua has consistently required that those from Costa Rica
47934L.W.T.S. 45.
CRM, e.g., para.2.06, at8,See also Notof Roberto Tovar, EoseignMinisteroCosta Rica,
to his Nicaraguancounterparof 20 October,2005, referringto certainmeasuresthatcameto
hamper and in somecases prevent "dailynavigationontheSanJuanRiverto whichtheyhave
alwaysbeentheaccustomed." CRM, Vo1.3Annex 81. The ForeignMinistecofNicaraguareplied
toths Noteon9 November,2005,emphasizingthatNicaraguaadheresstrictly to thelegalregime
of the San Juande Nicaragua Riverconsistingof the 1858 Treatyand the ClevelandAward,
rejectintheidea thatbordercourtesiesgrantedtofacilitate lotrafficouldeverconstitute a
legalprecedent,and recallingthatrespectforterritlovereignty,withallthepowersandrights
inherentinit,fom the cornerstonof internationarlelatiCRM, Vol.3 Annex 82.
233 obtain authorizationto cross into her territory, whetheron the SanJuan or
elsewhere. Costa Rica has repeatedlyrecognized this need to obtain
permission. Thus, this newly claimed right of "communication" is
excluded both by the legal regime of theriver - the 1858Treaty and the
Cleveland Award - and by practice. Moreover, Nicaraguahas not
withheld permission, where the request to transit the San Juan was
reasonable. Thefollowing examples illustratethese points.
6.2.12 In a note of 19June 2006, Dr.ThaisChingZamora, Director of the Costa
Rican Social Security Institute, a Costa Rican Public Sector Entity,
requested permission from Nicaraguan Ambassadorto Costa Rica,
Leopoldo Ramirez Eva, toprovide public health service ts thefollowing
commuvlitiesclose to the border: TcamborF , dtiinand Salz Aratonio. The
request stated:
"We hereby request authorization from the Governmentof
Nicaragua so that officials from the HealthUnit of the
Costa Rican Social Security Institute at PuertoViejo de
Sarapiqui may navigate the San Juan River to provide
healthcareservices to the communities of Tambor, San
Antonio and ...Due to the nature of our objective, we
request that the issuance of a 6-month permit be
r, 480
considered .
6.2.13 Similarly, the Christian and Missionary Alliance of Horquetas wrote
Nicaraguan Ambassador Leopoldo Ramirez Eva requestingpermissio tn
navigate a "smalltrack"ofthe RiverSunJuunto visit schoolat Tamhor
andRemolinilo .TheNote states:
I "* NCM, Annex 5 1.Note of19June2006, fromDr. ThaisChingZarnoraDirector of tCosta
Rican SociaSecurityInstitute,inPuertoViejo,Sarap, orthCentralRegion,n358-2006.
234 ', ,':.i, I". A:, : <
1%
"Our organization "~or8$riidadAlianza Cristiana y
Misionera" is locatedat Horquetas de Sarapiquiand we are
interested in carrying out missionary work that includes
social assistancein the schoolsof Tambor andRemolinito
and we have scheduled a trip for 7 July 2006. Since we
must navigate a short distance that correspondsto the San
Juan River, we request permissionfrom you to make this
journey becausewe wantto abide byyour strict regulations
insaidzone.
We do not have set dates for our subsequent journeys,but
we would like to have permission to navigate that short
distance andwe ask for a waiver on charges inasmuchas
the purposes for making use of that stretchare of social
interest an33481 aforesaid communities have few
resources...
6.2.14 In both casestheNicaraguan reply was givenalongthe followinglines:
"Authorizationto Navigate ..The Embassyof Nicaraguain
Costa Rica,by authorization from the Ministryof Foreign
Affairs of Nicaragua, grantsthis special authorization to
navigateon the SanJuan deNicaragua Riverto the boat: ...
The boat must carry the Costa Rican and Nicaraguan ...
[descriptionof the boat] ...Nicaraguanauthoritieshavethe
right to cancel thip sermit in case of any breach of the
Nicaraguanlaws. Furthermore,the holders of thispermit
must subject tu routine inspections by the respective
,482
authorities,.
6.2.15 In each case the authorization was accompanied by a Note from the
NicaraguanEmbassy stating:
481NCM, Annex 52.Note of 30June 2006,fromShepardRodrigoZamora,of the Christianand
MissionaryAlliance,Horquetas,Sarapiqui,to AmbassadorLeopoldoRarnirerEva, Nicaraguan
EmbassyinCostaRica.
Authorizatioto theCostaRicanSocial SecurityInstitute,No01/2006,sent on6July2006;
NCM, Annex 89. And Authorizationto the Christianand MissionaryAlliance located at
HorquetasinSarapiquiN, o. 0212006,senton6 July2006.NCM,Annex90.
235 "...the Ministry of Foreign Affairs of Nicaragua, a special
authorization is hereby issued to navigate the San Juan de
Nicaragua River for the stated purposes, which may not be
used for anypurpose or places other than those indicated or
in breach of Nicaragua's fullSovereigntyover the SanJuan
River .... This permit isa gesture of,friendsh@, good
neighborhood and courtesy of good faith that may not be
used in any other form or with the intent to harm
3.483
Nicaraguainanymannerorcircurnstunc e..
6.2.16 The regularandconsistentpractice illustrated in these examples is well
knownto Costa Rica and has followed it in nearly all cases without protest
or question. For her part, Nicaragua has consistently required thatCosta
Rican boats not carrying articles of trade receive advance permission to
navigate on the San Juan. Costa Rica's suggestion that there is a right of
"communication" between points on the Costa Rican side, using
Nicaraguan territory - the San Juan River - is novel andappears tobe an
opportunistic attempt to add more claimed "rights" to those she has
already asserted in the present case. It seems doubtful that she would
claim such rights if the San Juan were land territoryrather than water. Yet
in either case it is the sovereign territory of Nicaragua, and Costa Rica
must havepermission to crossitin any way not specifically authorized by
the 1858 Treaty and the Cleveland Award, as Costa Rica herself has
consistentlyaccepted.
4R3
Note of 6 Jul2006,to Dr.ThaisChingZamora,Directorof the CostaIircanSocialSecurity
Institute,fromAmbassadorLeopoldoRarnirezEva;NCMAnnex 53 and Note of 6 July2006,to
ShepardRodrigo Zamora,of the ChristiandMissionaryAlliance,fromAmbassadorLeopoldo
RarnirezEva.NCM, Annex 54.
2366.2.17 This Chapter has dealt wih difficulties that have arisen for Nicaragua
from her policy of cooperation and good neighborliness toward Costa
Rica. The Chapterhasshown that in respect of both armed navigation and
pleasure boating, Costa Rica has sought to create new navigational rights
in the San Juan through a practice of abusing permission to navigate
granted by Nicaragua; orestablishinga pattern of requestingand receiving
permission to navigate, then doing so without permission, claiming
justification in the 1858 Treaty and Cleveland Award. The Chapter has
shown, however, that Costa Rica's claims of new rights are unfounded.
Her right to navigate onthe SanJuan derives solely from the 1858 Treaty
and the ClevelandAward,which require that her vessels carry articles of
trade or navigate with craR carrying such articles. The Chapter then
turned to the issueof "facilitation of traffic on the river" rbysCosta
Rica in her Memorial. It showed that Costa Rica's contentions in this
regard are misplaced,sincethe treaty sherelies uponcreatesno newrights
of navigation in Costa Rican vessels;it only requires that Nicaragua use
her best efforts to facilittransport servicesof Costa Rican vesselsthat
are permitted to navigate on the San Juan by the 1858 Treaty and the
ClevelandAward. Finally,under the samerubric, the Chapter showed that
Costa Rica's alleged right of "communication" betweenpoints on her side
of the river is without foundation,as demonstrated not onlyby the 1858
Treaty and the Cleveland Award,but also by consistent practice reflecting
her acceptanceof the necessity of prior authorization to transthe San
JuanRiver. REMEDIES
Chapter 6 of the Costa Rican Memorial is more of an overview of the
general principles of law applicable in cases of state responsibility.
Nicaragua has little to say on this matter since, as shown in this Counter-
Memorial,Nicaraguahas violated none of its internationalobligations vis-
i-vis Costa Rica(Section 1).However, given the particular circumstances
of this case, Nicaragua would request the Court to make a declaratory
judgment establishing among other things that it has fully complied with
the obligations incumbentupon her by virtue of the 1858Treaty of Limits
(Section2).
Section 7.1
The Remedies Requestedby Costa Rica
7.1.2 Chapter 6 of the Memorial of CostaRica reviews the whole range of the
"legal consequences of an internationally wrongful act" as codifiedby the
International Law Commission in the Articles on State Responsibility
annexedto General Assembly Resolution56/82of 12December 2001. In
general, Nicaragua has no objection of principle to accepting thatthis is
the applicable law in case of State responsibility for an internationally
wronghl act. However,for this to be the case, an internationally wrongful
act - or several such acts - must have been committed. Nicaragua has
shown in this Memorial that Costa Rica has not given evidence of the
occurrenceof anysuch act either: - because the facts it has described are erroneous or wrongly
interpreted; or;
- more often, because it made an erroneous or mistaken
interpretation of the applicable law and, in particular, of the 1858
Treaty of Limits from which Costa Rica holds the only rights it
possesseson the SanJuan river.
7.1.3 As a result, the obligations alleged by Costa Rica either are nun-existent
or, when they exist, have not been breached by Nicaragua. Thus,
Nicaragua hasdemonstrated that:
i)it has notviolatedand is not violating:
- the rightof Costa Rica of free navigation with articles otrade [con
objetos de commwcio] as guaranteed by Article VI of said
re at^^'^,
- including the right for the Costa kcan vessels to approach the
northern shore of the river for that purpose (Article VI of the
d re at^)^^^,
- without "any class of impost" when said navigation is to this
purpose (Article ~1)~'~ ;or
- its (in factnon-autonomous) obligation"to facilitate and expedite
traffic...on the San Juan River within the terms of the Treaty of
15 April 1858 and its interpretation given by arbitration on 22
March 1888" (Section I of theTreaty of9 January 19~6)~'';
484Seee.g.,paras4.18-4.1.36.
4" Seee.g., paras.4.1.46,5.2.1.
4" Seee.g.para.4.2.36.
487Seee.g.paras.6.2.3-6.2.16. ' . I
and that
iijNicaragua isunder no obligationto permit navigation beyond thelimits
contemplated in the 1858 treaty of Limits and, thus for example, Nicaragua is
underno obligation:
- to accept free landing on the Nicaraguan bank of the river when
this is not done forthe purposes contemplatedin the Treaty;
- to allow Costa Rican official vessels to re-supply or relieve the
personnel ofpolice posts on the territoryof Costa R~c$~~o ;r
- to permit riparians of the Costa Ricanbank to fish in the River for
any purposes489.
7.1.4 Absent any breach,there can, of course, be no question of reparation or
other consequence of an internationally wrongful act, including the
cessation of perfectly lawful conducts. Some very brief comments on
some aspects of the Costa Rican requests are nevertheless in order. The
following remarks are made avguendoas a. purely academic discussion
and, of course, do not imply any recognition by Nicaragua that it has
committedanyof the breaches allegedby Costa Rica in the Memorial.
7.1.5 Concernintg he reparation requested by Costa Rica, a striking fact is the
vague and indistinct characterof the alleged damages and of the requested
reparation. Ttistrue that (i)restitution isthe primary form of reparation,
and (ii) the form and amount of compensation can be reserved for a
subsequent phase of the proceedings. But this does not mean that the
Claimant in a casebefore the Courtcan simply contend that it has endured
489seee.g.paras.5.1.-5.1.20.
Seee.g.paras,5.2.- 5.2.11.
241 an injury without establishing the precise and effective nature of said
injuryand that it has been caused by the alleged internationaklywrongful
act or acts.
7.1.6 As made clear inthe commentary of the International Law Commission
Articles, "[ilt is only '[ilnjury...caused by the internationally wrongful
act of a State' forwhich fullreparation must be made. This phrase is used
[in Article31, paragraph 2, of the Articles on States Respo~~sibility] to
make clear that the subject matter of reparation is, globally, theinjury
resulting from and ascribable to the wrongful act, ratherthan anyandall
consequences flowingfroman internationally wrongful act"". It belongs
to theClaimant to establishboth the reality af the injury and this causality.
7.1.7 It is true that, in its Judgments of 25 July 1974, in the Fisheries
Jurisdiction Cuse (Germany v. Icelarad),the Court recognized that "[ilt is
possible to request a general declaration establishing the principle that
compensation is due, provided the claimant asks the Court to receive
evidence and to determine, in a subsequent phase of the same proceedings
the amount of damage to be assessed"". However, in that same
Judgment, the Court indicated that it "is prevented from making an all-
embracing finding of liabilitywhich would cover matters as to which it
has only limited information and slender evidence'"'.~his is precisely the
case in the present case, where Costa Rica only makes very broad
assertions as to the injury allegedly endured9' and gives no indication
490ReportoftheInternationalawCommissionof theWorkofitsFifty-Third Session,23 April1
June and 2 July-1August 2001), OfficialRecordsof theGeneralAssembly,Fifty-SixthSession,
SupplementNo. I0 (AIS6IlO),.227, para9)of thecommentaryofArticle31("Reparation").
491ICJReports 1974,p.204,para.76- see CRM, p. 143para.6.17.
4" &id., p. 205,par76.
4" CCRM p,p141-142,para.6.15.
242 whatsoever as to the cause d? those damages. Accordingly, the Court
cannot accede to the submissionsmade by Costa Rica in such a cavalier
form494.
7.1.8 Moreover, in both cases to which Costa Ricarefers4Y5 t,e Court expressly
indicated that it specifically based its decision on Article 53 of its
which provides for the rules to be applied when "one of the
parties does not appear before the Court, or fails to defend its case". In
such a case, "the principle of the equality between the Parties requires"
that the absent Party be giventhe opportunity "to presentits arguments on
the question of reparation if it so wishes''97. This is not the situation
prevailingin the present case.
7.1.9 More specifically, Costa Rica requests, by way of restitution, "the
abrogation of all legislative and administrative measures taken by
Nicaragua which contradictor deny the obligations enumeratedabove''98.
Such a submission is not only vague and based on insufficient evidence,
whichdoes not allow the Court to decide in full knowledge, but also there
isno legalbasis forthe Courtto award this unfounded claim.
7.1.10 It is also appropriate to note, in respect to Costa Rica's allegations
concerning the "obligation" whichwould be incumbent upon Nicaragua
"to permit riparians of the Costa Rican bank to fish in the hver for
4* Cf.ICJReports 1974,p.205,para.76,andp.206,para. 77(5)(operativeparagraph),
4 9 5 ~ p.~143,fn424.
4N Judgmentsof 25July 1974,FisheriesJurisdictio(Germany v.Iceland;),CJReports 1974,p.
205, para.76, and27 June 1986,Militaryand ParumilitcltyActivities in atrdagainstNicarugua
(Merits),ICJReports 1986,p. 143,par284.
491CJRep~t-ts1986,[hid.
4 9 8 ~ p.141,pnra.6.13.
243 subsistencepurposes''" and, more generally, her claims for compensation
for the losses and expensesincurred by Costa Rican citizens'u0,that such
claims could only be made as a matter of diplomatic protection, the
conditions forwhich arenot fulfilled in the present case.
7.1.11 Inrespect to CostaRica'srequestfor assurancesundguuruntees ofnon-
repetiti Nicaraguanotes thatit seems, inrecentyears, to have become a
usage for the Claimants before the Court to request such assurances and
guarantees. It istrue that, accordingto Article 30(b)of the ILC Articleson
State Responsibility:
"The State responsible for the internationally wrongful
act is under anobligation:
...
(b) To offer appropriate assurances and guaranteesof non-
repetition, ifcircumstancessorequire".
7.1.12 However, as the text of this provision itself shows, such assurances and
guarantees of non-repetition are not required in every and all
circumstances. In the present case, such circumstances are certainly not
present.
7.1.I3 Nicaragua has constantly and consistently reaffirmed her commitment to
strictly respectthe 1858 Treaty of ~imits"' and this ispresumably what
the CostaRicansubmissioncould aim at. This would add nothing to these
firm commitments by Nicaragua or to the principlepccctu sutztservandu.
Moreover, as the Court has recalled, it "neither can nor should
contemplate" the possibilitythat its Judgments would notbe implemented
4w~RM,p. 139,para.6.03(i).
SeeCRM, pp. 141-14para.6.15.
Seee.g.NCM Chap. 4 and5. by the parties502.Infact, as will be shown below503,if assurancesand
guarantees of non-repetition are to be decided by the Court, they should
bearuponthebehaviour of CostaRica,not that ofNicaragua.
7.1.14 In paragraph 6.22 ofher Memorial,Costa Rica seems b base her request
on thispointon the fact that "[tlhisis the third timein historythat Costa
kca has been obliged to have recourse to adjudication (arbitration by
PresidentCleveland, theCentralAmerican Courtof Justice and this Court)
in order to obtain recognition and respect of her rights as first established
by the Treaty of Limits". This is a very misleading hotchpotch of
precedents:
-
as shown above504,the questions asked to President Cleveland by
Nicaragua and which were the object of the 1888 Award were
entirely different of those submitted to the Court in the present
case;
- the sameholdstrue in respectto the 1916 Judgment of the Central
AmericanCourt of ~ustice~'~w , hich essentiallrelated to theright
of Costa Rica to be heard in respect to a canal concession in
relationwith Articles VII and VlII of the Treatyof ~irnits''" while
these provisions areof no relevance in the present case.
seee.g.:FCIJ, Judgment17 August 1923,S.S.Wimbledon,SeriesA, No1,p.32;18September
1928,SeriesA, No 17,Factory at Choabw ('ClaimsfIfldernnit(Merits)SeriesA, No17,pp.
62-63;ICJ,20 December 1474,Nucleur Tests, ICY Repor1974,p. 272,para.60,andp. 477,
para.63, or 26 November 1984,Military undParamilitaryActivities in and against Nicaragua
(Jwi~dicfj~~f the Courand Admissibilityof the Application),ICYRepo1984,p.437, para.
101.
'03~~~, Chap.7, sec.2.
jQsee e.g.NCM, paras3.1.1-3.1.26,2.1.42-2.1.43.
'05CRM, Vol. 2hex 21.
SeeCRM,Annex2 1,inparticulatp. 150.
2457.1.15 Finally, Nicaragua wishes to firmly reiterate, that the remarks in this
section do not amount to any kind of recognition of any violation of the
1858Treaty of Limits as interpreted by the Cleveland Award.They have
been presented to the Court only very subsidiary, in order not to let
unansweredany allegationmade by the Costa Rican Party.
Section 7.2
Declaration Requested by Nicaragua
7.2.1 In the present case, the subject-matter of Costa Rica'sclaim is defined by
the Application and the submissions of the Memorial. It willbe apparent
from the reading of both documents that itis mainly concerned with the
interpretationand the application of Article V1of the Treaty of Limits of
1858,which according to Costa Rita would have been violated inseveral
respectsbyNicaragua.
7.2.2 In reality, Costa Ricahas followed a pattern of conduct which amounts to
a global strategy of challenge of her obligations under the Treaty of
Limits. As has been explained in previous Chapters of this Counter-
Memurid, Costa Rica's strategy has consisted in trying to expand her
rights under the 1858 Treaty and the Cleveland Award by all meansio7.
Nicaraguawishes to take the opportunityof the present case to put an end
to this strategywhich periodically inflames the relationsbetweenthe sister
Republics. A Judgment of the International Court clearly establishing the
respective rights and obligations of the Parties under the 1858 Treaty as
'07SeeNCM,Chap.6. interpreted by the Cleveland Award would be most helpful for that
purpose.
7.2.3 Nicaragua shares the position of Costa Rica as to the possibility for this
Court to make a declaratory Judgment. Such a possibility has been
acknowledged by the Permanentcoudo8 and confirmed by the present
and "has been foreseen inArticle 63 of the Statute, as well as in
Article36..."5'0.
7.2.4 In view of theCosta kcan pattern of conduct consisting of trying to put
into question in every circumstance the limited character of her right of
navigation on the San Juan kver under the 1858 Treaty of Limits, and in
order to clearup any ambiguity for the future application of the Treaty,
Nicaragua formally requests the Court to reaffirm inthe light of the Costa
fican claims in this case, the extentof this State's rights of navigation in
the SanJuan deNicaragua River.
7.2.5 TheJudgmentof the Court shouldmakeclearthat:
- the right of CostaRica of freenavigationwith articlesof trade [con
objetos de commercio] as guaranteed by Arficle Vl of said Treaty
is strictlylimited to the commerce of goods and does not include
tourist activities;
50See PC1J, Judgments,25May 1926,CertainGermanInterestsinPolishUpper Silesi(Merits),
SeriesA, No7,pp. 18-19;16December 1927,InterpretatioofJudgmentsNo 7 and8 {Factoryat
Chorzdw),SeriesA,No 13,pp.20-2 1.
SeeICJ,Judgment,2 December 1963, NorthernCameroon,ICJ Repords 1963,p.37:see also,
20December 1974,NuclearTestsICJ Reports 1974,p.263,para30,and p.457,para.31.
5'0PCIJ,SeriesA,N"7, p.19.
247 - Nicaragua is under no obligation to accept free landing on the
Nicaraguan bank of the river;
- nor to allow Costa Ricanofficial vesselsto re-supply or relievethe
personnelofpolice posts on the territoryof Costa Rica;
-
nor to permit ripatians of the Costa Rican bank to fish in the
River; and that
- her alleged obligation "to facilitate and expedite traffi...on the
SanJuanRiverwithin the termsof the Treaty of 15April 1858 and
its interpretation given by arbitration on 22 March1888'' provided
for in Section I of the Treaty o9 January 1956has nu autonomous
character and is a pure reminder of the obligations of both Parties
provided for in these instruments; andthat;
- Costa mca is under a strict legal obligation to comply with her
obligationto respect Nicaragua's sovereigntyoverthe river.
7.2.6 Finally, In view of the above considerations, and in particular those
indicated inChapter 2 (El,Nicaragua requests the Courtto Declarethat:
i. Costa Rica is obliged to comply with the regulations for
navigation (and landing) in the San Juan imposed by Nicaraguan authorities in
particularrelated to matterof health and security.
ii. Costa Rica has to pay for any special services provided by
Nicaragua in the use of the San Juan either for navigation or landing on the
Nicaraguanbanks.
iii. Costa Rica has to comply with all reasonable charges for
modern improvements inthe navigationof the river with respectto its situation in
1858. iv. Revenue service boats may only be used during and with
specialreferenceto actualtransof themerchandiseauthorized byTreaty.
v. Nicaraguahastherightto dredgethe San Juaninorder to return
theflow of waterto that obtainingi1858 evenifthis affectstheflow of waterto
otherpresentdayrecipientsof thisflowsuchasthe ColoradoRiver. RESERVATIONS
In these proceedings Nicaragua has limited her arguments and claims to
rights and obligations based solely on the bilateral International
Instruments that regulate the questions at issue between the Parties,
namely and fundamentally, the 1858 Treaty of Limits and the 1888
Cleveland Award. Costa Rica also alleges to base her claims on these
same bilateral Instruments, nonethelessshe has included in heMemorial
an Appendixrelating to the so called "status of the San Juan River in
international lawand has made claims in favourof residents of the Costa
Ricanbank of the San Juan Riverbased onCustomaryInternational Law.
2. Therefore, if the claims of Costa Rica, and more generally, if the legal
situationof the San Juan de Nicaragua River, is tbe considered on legal
principles that gobeyond or areindependentof the bilateral Instrumentsin
force for the Parties, then Nicaraguareserves her tightsto claimthat the
only present day outlet of the San Juan to the sea that is permanently
navigable, the ColoradoRiver, is an international waterway subjecttothe
provisions of general internationalaw for international watercourses not
subjectto a special treaty regime.
Furthermore, andon the basis of these sameprinciples of internationlaw
and also on the basis of the rights and duties imposed by the bilateral
instruments in force between the Parties, Nicaragua makes express
reservation of her rights to bring claims against Costa Rica for the
ecologicai damage done to the waters of theSan Juan River aswell as for
the diversion of its traditional water flow iagricultural,industrial and
otheruses inCostaRican territory and into the water flow of the Colorado
River.
4. Finally, The Government of Nicaragua, further, reserves the right to
supplement or to amend her Submissions as well as the arguments and
evidence filed with thfs Counter-Memorial. SUBMISSIONS
On the basis of the factsand legal considerations setforth inthe Counter
Memorial, theCourt isrequested:
Toadjudge anddeclare that the requests of Costa Rica inherMemorial are
rejected, on the followingbases:
(a) Eitherbecause there ino breach oftheprovisions oftheTreaty of
15April 1858on the facts.
(b) Or,asappropiate, becausethe obligatiobreachof which is alleged
isnot included itheprovisionsoftheTreaty of 15April 1858.
Moreover,the Court is also requested to make a formal declaration on the issues
raisedby Nicaragua in Section2 of Chapter 7.
CarlosJoskARGUELL OQMEZ
Agent of the Republicof Nicaragua
29 May 2007 LISTOF ANNEXES
(Volume 11)
TREATIES
1
ANNEX 1 Montealegre-Velasoreaty.Granada,16Augus1823.
ANNEX 2 Montealegre-Solsreaty. Leon,9 September1823. 3
Chamorro- Mayorga-WhiteConvention.Granada,14August
ANNEX3 7
1851.
ANNEX4 Marcoleta-MolinareliminaTreaty. Washingt2,8January 11
1854.
ANNEX 5 Cass-Irisai reaty. Washing1,6November1857. 15
ANNEXS Zelaya-Volio Convention.SJosk13July 1868. 25
ANNEX 7 Rivas-Esquivl onventio. anJosC,21December1868. 27
ANNEX 8 MonteaEegre-JimenIzter-oceanicCanalizaTreatySan 29
JosC,18June 1869.
ANNEX 9 ~lvarez-~arnbraTreatyof Limits.Granada, 5February 33
1883.
ANNEX 10 Navas-CastrTreatof Limits.SanJose, 19January1884. 39
ANNEX II Rornan-Esquivel-Cruz,uatema, 4 Decembe1886. 43 ANNEX 12 Guerra-CastroTreatyof Limits. Managua,23 December 189047
ANNEX 13 Matus-Pacheco-LainfiestaPreliminaryTreatyof Peace. 26 51
April1898.
CONCESSIONS
Zepeda-Juirez-WhiteCanalization Contract. Leon,27 August
ANNEX 14 1849.
1 ANNEX 15 Irisarri-StebbinsContract.New York, 1857.e 65
ANNEX 16 Webster& Harris-EscalanteContract.SanJose, 11857. 69
ANNEX 17 Zeledon-RosafCrezContract.Managua,30 December 1860. 77
Molina- Morris Inter-oceanic Transit Contract. Washington,
ANNEX I0 November 1863 79
ANNEX 19 F.A. PellasNavigationContract. Mana1March 1877. 89
ANNEX 20 Cardenas-Menocal Contract. Mana, JMarch1887. 91
1 NOTES
Note from LewisCass, Secretaryof Stateof the Unites States,to
WilliamCarey Jones, SpeAgentof the United Statesto
ANNEX 21 95
CentralAmerica.Washington,July 30 1857.
Note from Colonel Jorge Cauty, Diplomatic Representativeof
ANNEX22 the Costa Rican Governmentto Mr. Segundo Cuarezma, 99
Commander of the San Carlos Fort. San Car14sOctober
1857.ANNEX23 Note from WilliamCarey Jones,Special Agentto the United 101
Statesto Central America,to GregorioJuirez, Ministerof
Foreign AffairsofNicaragua.Managua, 17October 1857.
Note fromPedroRbmuloNegrete,Minister Plenipotentiaryof
ANNEX 24 the Governmentof ElSalvadotoGregorioJuLez, Secretary 107
forForeignAffairsofNicaragua.6May 1858.
Note fromMirabeauB. Lamar, United States MinisterResident199
ANNEX 25 to Nicaragua and CostaRica, to LeCass,Secretaryof State
ofthe United States. Managua,May28, 1858.
Note from Lorenzo Montifar,MinisterofForeign Affairof
Costa Rica,to AnselmoH.Rivas, Ministerof ForeignAffairs of
ANNEX26 113
Nicaragua. SanJost.,22 July 1872.
Messageof Tomas Aybn, StateDepartmentof Nicaragua,to the
ANNEX27 Senateof Nicaragua,giving Historyof the boundarynegotiati123
with CostaRica.8 January 1876.
Note fromMr. FranciscoCastellbn,Minister of Foreign Affairs
ANNEX28 of Nicaraguato Mr. Ascensibn Esquivel,Minister of Foreign127
Affairsof CostaRica.Managua5 June 1886.
Note fromMr. Ascensibn Esquivel, Ministerof Foreign Affairs
129
ANNEX 29 of Costa Rica to Mr. Francisco Castellon,MinistForeign
Affairsof deNicaragua,SanJose, 31October 1886.
Note fromMr. JosCJ.Rodriguez,MinisterofForeign Affairsof 131
ANNEX 30 Costa Ricato Mr.FranciscoCastellbn, Minister ofForeign
Affairs of Nicaragua.SanSos11November 1886.
Note from Mr. Ascension Esquivel, Miniof Foreign Affairs
of NicaraguatoMr. CletoGonzalezViquez, Ministerof Foreign
ANNEX 31 Affairsof Costa Rica.Managua, 14February1887. 133
Note from Mr. CIeto Gonzhlez Viquez, Ministry of Foreign
ANNEX32
Affairs of Costa Rica to Ms. Joaquin Elizondo, Minister o137
257 ForeignAffairsof Nicaragua. SanJose,21 March 1887.
Note frornMr. Pedro Pkez Zeledbn, Chief of the Costa Rican
ANNEX 33 Legation in Washingtonto Mr. ThomaF.Bayard, Secretaryof 14 1
Stateofthe UnitedStatesof America,30 July 1887.
TelegramfromMr. Pedro GonzilezUnder secretary for Home
ANNEX 34 Affairs to Mr. Ascensibn Esquivel, MinisterofForeignAffairs
143
of Costa Ric28 September1887.
Note fromMr. PedroPkrezZeledbn,Chiefof the CostaRican
ANNEX 35 Legationin Washingtonto Mr.ThomasF.Bayard, Secretaryof 145
Stateof the UnitedStatesof America,23March 1888.
Note fromMr. PedroPerezZeled~n,MinisterofForeign Affairs
ANNEX 36 of Costa Rica, to Mr. Joaquin Elizondo, Minister of Fore147
Affairsof Nicaragua. SanJosC,25 September 1888.
ANNEX 37
Note frornMr. Ricardo Pacheco,Ministerof ForeignAffairs of
Costa Ricato the Ministerof Foreign Affairsof Nicaragua. San
JosC ,August1895.
ANNEX 38 Note fromMr. Ricardo Pacheco, Ministerof Foreign Affairsto
the Secretarto the Diet of the GrRepubliof Central 143
America,31July1897.
ANNEX 39 Note from Mr. Julio Martin, Director of ADENA, to Mr.
Alfonso Robelo, Ambassador of Nicaragua in Costa Rica. S165
JosC27 September 1993.
ANNEX 40 Note fromMr. ErnestoLeal,Ministerof Foreign Affairsof
Nicaraguato Mr.Alfonso Robelo,Ambassadorof Nicaragua to 167
CostaRica, 8 October 1993.
Note fromMr. BemdNiehaus,Ministerof Foreign Affairsof
ANNEX 41 Costa Ricato Mr. Mr. AlfonsoRobelo,Ambassadof Nicaraguato Costa Rica,SanJose, 15Mar1994,
Notefrom Mr.Juan RafaelLizano,Ministerof HomeAffairs,
ANNEX 42 Police andPublicSafetyof Costa Ricato Mr. Jose Antonio 171
Alvarado,MinisteofHomeAffairs of Nicaragua. SariJE5e,
July1998.
Note fromMr. WalterNiehaus,ViceMinister of Foreign
ANNEX 43 Affairs and Worshipof Costa Ricato Mr.Adin Guerra,Vice I73
Minister Foreign AffairsofNicaragua. SanJose, 23deMarch
2090.
ANNEX 44 Note fromMr. RobertoRojas,Ministerof ForeignAffairsand E75
Worshipof Costa
Rica to Mr. Francisco XavierAguirre,Minister Foreign Affairs
ofNicaragua.San
Jose,26 October2000.
Note fromMr.Roberto Tovar,MinisterofForeign Affairs and
ANNEX 45 Worshipof Costa RicatoMr. NormanCaldera, Minister 177
Foreign AffairsofNicaragua.Alajuela,26 September2002.
Note from Mr.MiguelLebn, President,ADENA toMr.
ANNEX 46 MauricioDiazDavila,AmbassadorofNicaraguatoCostaRica. 179
SanJose, 14July2003.
Note from Mr Roberto TovarMinister of Foreign Affairs and
ANNEX 47 Worship of Costa Rica to Mr. Norman Caldera, Minister of
181
Foreign AffairsofNicaragua.San JoGDecember 2004.
Note from Mr. Miguel A. Lebn, President, Directive Board183
ANNEX 48 ADENA to Mr. Francisco Fiallos Navarro, Ambassadoof
Nicaraguato Costa Rica.SanJos&,27May2205.
Note from Mr. Miguel a. LeBn,President, Directive Board,
ANNEX49 ADENAto Mr. Francisco Fiallos,AmbassadorofNicaragua to 185
Costa Rica,SanJose, 8June 2005. Note fromMr. Norman Caldera Ministerof Foreign Affairsof
ANNEX 50 Nicaragua, to Mr. Bruno Stagno, Minister of Foreign Affairs
187
and WorshipofCosta Rica. Managua,2June 2006.
Note fromMrs.Thais Ching Zamora,Director, Health Unitof
ANNEX 51 the CostaRicanSocial Security Instituteto Mr. Leopoldo
Ramirez, AmbassadorofNicaraguato CostaRica.PuertoViejo 189
de Sarapiqui, 19June 2006.
Note fromMr.RodrigoZamora, Comunidadde Alianza
ANNEX52 CristianyMisionerade HorquetastoMr.LeopoldoRarnirez,
AmbassadorofNicaraguato Costa Rica. Horquetasde 191
Sarapiqui,30 June 2906.
ANNEX 53 NotefromMr. LeopoldoRamirez,Ambassadorof Nicaraguato 193
CostaRicato Mrs.Thais Ching Zarnora.SanJose,6 July 2006.
Note fmrn Mr. LeopoldoRamirez,AmbassadorofNicaragua to
ANNEX 54 CostaRica to Mr. RodrigoZarnora, Comunidadde Alianza
Cristiany MisioneradeHorquetas.SanJosC,6 July 2006.
DECREES
Decreeof the Central AmeriFederalCongress,approving 197
ANNEX 55 the annexation ofNicoyato CostaRica.9 December 1825.
Decreerevoking the rightsand privileges grantedto the
ANNEX 56 American Atlanticand PaciShipCanaland the Accessory 199
Transit Company. Granada,18Februar856.
ANNEX 57 Decree No.139. Nicaraguaacceptsthe wardeclaredby Costa
202
Rica.Managua, 19October1857.
Decreeordering the commandersof portsand perfectsof the
ANNEX 58 frontiersof Nicaragua notto permitany foreignpersonto go
intothe interiorof the country,unlesspresenting a passport5 issuedbytherespectiveMinistersor Consulsat theororts
places of theirdeparture. Nica11September1862.
ANNEX 59 PresidentialDecree527,creattheSolentiname Archipelago 209
NationalMonument.GazetteNo. 78. 23 April 1990.
ANNEX60 Decree28-94declaringNicaragua'ssoutheast regiona 213
sustainableDevelopmentTerritory.8 J1994.
ANNEX61 Decree66-99,Updatingand definingthecategoriesand limits
ofProtected Areas locatedinNicaragua'ssoutheast territo215
31 May1999.
CONSTITUTIONS AND CONSTITUTIONALJURISPRUDENCE
ANNEX62 Political Constitutionof Costa Rica. 17(Art.5). 225
I
ANNEX 63 Political Constitutionof Cost7RNovember 1949(Art. 5). 227
ANNEX 64 Jurisprudence regardingArticle46 of the 1949CostaRican 229
Constitution.
ANNEX 65 Political ConstitutionofNicaragua. 9 January 1987as 233
modified in 1995(arts. 1, 138,numeral 12, 150numeral8and
182)
ANNEX66 Judgmentofthe ConstitutionalChamberof SupremeCourt
of CostaRica.Exp:00-007391-0007-CO- Res:2001-98239. 235
SanJose, 14August 2001.
LAWS AND RESOLUTIONS
ANNEX67 LawNo7410.GeneralLawofthe CostaRican Police(Art24) 239
SanJosC,26May 1994. Resolutionof the RepublicofNicaragua's National Assembly
ANNEX68 ontheJointCommuniquCCuadra - Lizano,30 July 1998.
Ordinary Sessio#5.Managua, 18 August1998.
AWARDS, JUDGMENTSAND RELATED DOCUMENTS
Replyof the RepublicofNicaraguato the Caseof the Republic
ANNEX 69 of CostaRica submittedto his Excellency Hon.Grover
Cleveland,Presidentof the UnitedStates. 1887.Washington
1887.p. 49
ANNEX70 GeorgeL.Rives Report.2 March 1888.
ANNEX71 George-L.RivesReport (Second).2 March 1888.
ANNEX 72 DraftAward preparedby G. L.Rivesandhandedtothe
ArbitratorMr.GroverCleveland. 17March 1888.
ANNEX 73 Alexander, Engineer-Arbitrator:AwardNo. 4. SanJuan del
Norte,Nicaragua, 26 July L899.
ANNEX 74 "Objeto"Diccionariode la LenguaCastellanapar la Real
Academia Espafiola,10Edicibn.IrnprentaNation1852.
ANNEX 75 Yearbookof the Ministryof ForeiAffairof CostaRica.
1888(Pp3.-4).
ANNEX76 Yearbookof theMinistryof ForeignAffairsand Worshipof
CostaRica. 1900.(Pp10-11).
ANNEX 77 de Peralta, ManuelM."Historiade laJurisdiccibnTerritorial
de laRepiblica de Costa Rica",Madr1891,pp.38.ANNEX 78 Yearbookof theMinistry oFForeignAffairs and Worshipof 283
CostaRica 1998-1999.(p.35).
ANNEX 79 Yearbookof the Ministryof ForeignAffairsand Worshipof 285
Costa Rica2001-2002.(Pp143-144)
PRESSREPORTS
ANNEX80 "NicaraguayCostaRica".Edicibndel Centroamerica24.
October 1857. 281
(Nicaragua and CostaRica)
"Paisobligadoa integrarse"Costa Rnewspaper"La
ANNEX 81 Nacibn". San Jose, 19May 2002.
(CountryForcedtoIntegrate)
"Tovar ReconocesoberaniaNica". Nicaraguan newspaper 291
ANNEX 82 "LaPrensa".Managua, 18February2005.
(Tovar recognizesNicaraguanSovereignty)
ComrnuniquCof theMinistryof ForeignAffairsand Worship
ANNEX 83 ofCosta Rica:"Costa Ricaannouncesfiling of application, 293
beforethe International Courtof Justice,onher rights of
navigationontheSanJuan River, SanJose,28 September
2005.
ANNEX 84 Textfromthe NationalRadioand Television Chainaddressed
by the PresidenttheRepublic[of CostaRica],Dr. Abel 295
Pacheco.2 October2005.
"Gobiernodesechad armasde GuerraPeribdico"LaNacibn".
ANNEX 85 SanJose,6 June2006. 299
(Government willchangeits miliarmament) OTHERDOCUMENTS
ANNEX 86 RoyalChartetoDiego ArtiedaElPardo,1December1573. 301
ANNEX 87 Mr.FranciscMariaOrearnunoD, iplomaticMissionin
Nicaragua (InstructiS.nJose,26July1838.
305
ANNEX88 PropositionsWebster-Crampto. ashingtoD.C,39April 311
1852.
ANNEX89 AuthorizatitoNavigateissuedbytheEmbassyofNicaragua 317
inCostaRica.SanJose,6 Jul2005. # 1
ANNEX90 AuthorizatitoNavigateissuedby theEmbassyofNicaragua 319
inCostaRica.SanJose6July2006. # 2.
ANNEX 81 Affidaviof ColonelRicardoSinchez.7.December2006 ;~~f",:?~',...> - "::*.v'*:,;
,(&9:p.-...-.=:,.;1'..,,",-*:,&:.*
NICARAGUA'S SOVEREINGTY OVER THE WHOL
GOIURSE OF THIESAW JIUAYW BE IWlllCAMOlYA RIVER
Counter-memorial of Nicaragua