INTERNATIONAL COURTOF JUSTICE
DISPUTEREGARDING
NAVIGATIONAL AND RELATEDRTGIHTS
(COSTARICAVNICARAGUA)
REJOINDEROF
THEREPUBLICOFNICARAGUA
15JULY2008VOLUME ICHAPTERI: INTRODUCTION .................................................. .......................
.........................
SECTIOI N. POINTS OFAGREEMENT ...................................................2.......
...............
SECTIOI N1. REMAINING POINTS OF DISAGREEMENT ....................................6..........................
SECTION m . STRUCTUREOFTHEREJOLNDER ......................................18..........................
CHAPTER1I:THEAPPLICABLELAW .......................................... ...............................
.........
SECTION .I THECHARACTEROFTHE~~~~TREATYASATREA?I(OFBO .~..R....S..
A . Introduction.......................................................
........21..............................
B . TheLegalandHistoricalContext of The1858Treaty ............................23..................
C. Admissions by CostaRica .....................................................28 ...................
D. TheApplicablePrinciplesofInterpretation ....................................................
E. TheApplicationof theGeneralRule ofInterpretationto theTreatyof Limits ........1..
1. TheObjectandPurpose IndicatedintheTextof the Trea.........................37.................
(a) The TitleandthePreambl.................................................3.......
.......................
TheProvisionsoftheTreaty...............................................38....
....................
(b)
(c) TheGeneral Characterofthe Treatyof 1858asRevealedin theDiplomatic
CorrespondenceandNegotiations Subsequentto the Treatyof 1858.................4...........
(d) TheObjectandPurposeasRevealed inthe Cleveland Awardof 22March1888and the
Reporttothe Arbitratorby George.Rives, AssistantSecretaryofState,of2 March ..42
TheRole of Inter-TemporaL l aw inthePresentCase ............................43...................
F.
1. FirstElementof Confusion..................................................43......
............................
2. SecondElementofConfusion .................................................45........
.......................
3. ThirdElementof Confusion..................................................46...
..........................
G . ThePrimary ObjectandPurposeof The 1858 Treatyas a Treatyof Limits: TheLegal
Consequences .......................................................
............48.................................
1. TheThesesof CostaRicaConcerningTreatyInterpretati.........................48.................
2. TheResponseofCostaRicatotheAnalysis Presentedinthe Counter-Memorial.......50...
H . Conclusion: ThePrimaryObjectandPurpose ofthe 1858Treatywas theDeJinitive
Settlement of aLong-standingDispute ConcerningTitle to Territory................................ SECTIOI N1. THEROLE OF GENERAIL NTERNATION LALWAND OTHER PARTICULAR
RULES ............................................................
.........................
A . The TreatyPrevails: The Contingentand Secondary Relevance of General
InternationalLaw ......................................................
....................................
B . OtherApplicableRules .......................................................
.8....................
. Relevant CustomaryRule.....................................................68...............
2. The"Instnunents"Invokedby CostaRica.........................................1.............
....
(a) The 1956Fournier-SevillaAgreemen.........................................2...........
...
(b) The 1995Cuadra-CastroJoint ommuniquC ....................................4...................
(c) The 1998Cuadra-LizanoJointCommuniquC ...................................77..................
3 . The 1916Judgmentofthe CentralAmericanCourtofJustice........................79.............
SECTIO1 N11. THESCOPE OFTHE CLEVELAN ADWARD .................................1................
A . The ClevelandAward Limited Costa Rica'sRightstoNavigatetheSunJuan with
Public Vessels ......................................................
.............8.........................
B . TheMeaningof "ConObjetosde Comercio" WasNotDecided intheCleveland
Award .......................................................
...................-89...........................
C. Conclusion ......................................................
...........9........................
CONCLUSIO N.............................................................
.........3......................................
CHAPTER IH: THENATURE AND EXTENTOFCOSTARICA'SRIGHTTO
NAVIGATE"CONOBJETOSDE COMERCIO" ..................................... .9................................
INTRODUCT IO.N...........................................................
......-99......................................
SECTION . INTERPRETAT IF THE 1858TREATY OF LIMITS ACCORDIN T OTHX VIENNA
CONVENTION ONTHE LAW OF TREATIE ...............................................10..............
........
A . TheLanguageof the TreatywithRespect to CostaRica'sNavigation Rights ......102.
B . The Objectandpupose of CostaRica'sNavigation Rights Underthe Treaty .......07
. CostaRica'sNeed for a Trade Routo theAtlant...............................108..............
(a) The InadequacyofExisting Trade Rout.....................................10....................
(b) TheIdeaofthe SanJuan Route..............................................1.........
..............
(c) Negotiations with Nicaragua ovetrhe SanJuanRiverpriorto the 1858Treaty..116
2. ArticleVI ofthe 1858TreatyinIts Historical Co.............................1.8...............
3. Early PracticeoftheParties under the Treatyof.............................1.0..............
TheFateofthe SarapiquVSanJuanTradeRoute ................................30...............
(a)
(b) TheTwo Treatiesof 1868.................................................1.3...
......................
(c) CostaRica'sWritten SubmissiontoPresident Clevela........................3.......... TheAlexanderAwardof 1897 ...............................................6......
...............
(d)
4. "Comercio"asUnderstoodin 1858MeantTradein Goods .........................139....................
ContemporaneousDictionaryDefinitio.......................................0...................
(a)
(b) ContemporaneousUsages ..................................................4.....
......................
(c) The FullTextof ArticleI MakesClearThat"Comercio"MeansTradeinGoods ....44
(d) TheNineteenthCentury Treaties and Documens itedby CostaRicinthe Repl...147
SECTIO N1. THETREATY DOES NOTE~OWERCOSTA RICAToPERFORM PASSENGE ORR
OTHER SERVICEN S. RDOES ITHAVE AN EVOLUTIONAC RHYARACTER ................................
A . TheEvidence ConcerningPassengerTrafic ...................................151......................
B . ThePartiesDid NotGivethe 1858 TreatyanEvolutionalyCharacter ..............5.
CHAPTERW: THEREASONABLENESS OFNICARAGUA'S REGULATION OF
NAVIGATION ONTHE SANJUANRlTTER .........................................................................
SECTION . COSTA RICA'S NAVIGATIO ONTHE RIVER ISSUBJEC TTOREASONABLE
NAVIGATION "CONOBJETO DSECOMERCI "OAND NICARAGUA N'SN-INTERFERE N TEH
A. EnvironmentalProtection ....................................................179 .................
1. ProtectedAreas.......................................................
...80....................................
TheIndioMaizBiological Reserve and SJuanRiver Wildlife Refu............82....
(a)
(b) TheSanJuanRiver - NicaraguaBiosphere Reserve..........................186...........
2. Regional and International EnvironmentalCommitmn.........................18..............
3. Management andProtectionoftheReserves....................................18......................
4. Illegal Logging.......................................................
.191.........................................
5. Illegal HuntingandFishing................................................194..
.........................
6. Illegal OccupationofProtectedLand........................................196...........
...............
7. Nicaragua's Regulations AreNecessaryPorotecttheEnvironment...............197.............
(a) TheRequirement ToStopandRegister......................................197.............
.................
(b) TheRequirement ToObtainaDepartureClearance Certifica..................1............
(c) TheProhibitionofNavigation at Nig.....................................1.................
...
(d) TheProhibitionofCertain Fishing Activities............................200.............................
B . ControlandPrevention of Crime .............................................202..........
.............
1. The RequirementTo Stopand Registe........................................2.3.............
......
The RequirementToObtain a Departure Clearance Certificate................204..................
2. 3. The ProhibitionofNavigationatNig...........................................06...........
.......
C . NavigationalSafety .......................................................
...7....................
1. TheRequirementto StopandRegister......................................................
........
2. TheRequirementTo Obtain a Departure Clearance Certifte....................20..........
3. TheProhibitionofNavigation at Night.......................................209..........
................
D. Border Protection and Securit......................................................
........
1. ImmigrationControls.......................................................211..................................
2. The RequirementTo FlytheNicaraguan Flag...................................215..............................
CONCLUSIO ...........................................................
...............................................
CHAPTER V: COSTARICA'SALLEGED RIGHTSOFPROTECTION. CUSTODY AND
DEFENCEOFTJ3XSAN JUAN RIVER .......................................... 221.............................
........
INTRODUCTI .............................................................
.......-2..................................
SECTIOI N. THESCOPE OFCOSTA RICA'S ALLEGER DIGHTS .............................2...........
A . CostaRica'sAlleged Rights HaveNo Basis inWhatShe Characterizesas the
"ApplicableLaw" ......................................................
...........2.....................
1. ArticleIV ofthe TreatyofLimits............................................223........
................
2 . ArticleVI oftheTreatyofLimits.............................................226......
................
3 . OtherDocumentsInvokedby CostaRica .......................................229.............
...
B. CostaRica'sResponseto theAnalysis inthe Counter-Memorial Is NoAnswerto
Nicaragua'sArguments ........................................................
....0.....................
SECTIO 1N1 EVIDENC OFTHE PARTIES S'UBSEQUEN PTACTIC .E.....................24..........
A . TheSoto-CarazoTreatyof26July 1887 .......................................247.........................
B. CostaRican Public VesselsHave Never AttempteT doProtect Navigation"Con
Objetosde Comercio" orHadtheNeed To Do So.....................................5............
C. Supplying and Bringing Replacement Personnel P toolicePost...................61...
1. CostaRica'sEvidenceRegardingthe SupplyofBorderPosts............................................
2 . CostaRica'sChangeinPolicyinMay-July1998, andNicaragua's Response.........266..
3. DiplomaticEffortsTo Restorethe StatusQuo An................................75...............
4 . The Practice Priortothe 19................................................28......
..................
D. Conducting Law EnforcementActivities.........................................8..............
E. Providing Social ServicestoRearian Communities ..............................8.........
CONCLUSIO ............................................................
..........29...................................
CHAPTER VI: REMEDIES ................................................... ......................
............................ ......................
SECTIO 1. COSTA RIGA'FSURTHE CRONTENTIO RNEGARDIN RGEMEDIES 308
A. TheIssue ofDiplomatic Protection..................................309........
......................
. .................................................
......................
1 AbsenceofRelationwiththeApplication 309
2. Non-ExhaustiofDomestic Remedies.................................313...........
......................
B. Assurancesand GuaranteesofNon-Repetition...........................316.........................
C. Compensation................................................
....320............................
SECTIONI THESANJUANRIV ............................................3.1......
..............
SECTIO I1 THE MATTE RFNICOYA .........................................335.........
..................
TheCostaRican Constitutionsof 1825and 1.............................9..........
A.
B. Negotiationsfor theInter-oceanic Canal............................341..............................
SECTIO I11 COSTA RICAN NAVIGATIO ONrn SANJUAN RIVER ASOF 1888.......342.....
CONCLUSION ......................................................
......-345........................................
. LISTOFANNEXES ..........................................................47...........
.........................................
LISTOF MAPS AM) PHOTOGRAPHS .....................................................................
........ INTRODUCTION
1.1. Nicaragua submitsthis Rejoinder inresponse to CostaRica'sReplyof 15
January 2008, and in conformity with the Court'sOrder of 9 October 2007,
which set the dates for the submission of the Reply and the Rejoinder as 15
January 2008and 15July 2008, respectively.
1.2. In this Rejoinder, Nicaragua will respond to the legal and factual
arguments presentedin theReply, andto the evidence presented both in theReply
itselfand intheAnnexesthereto.InthisIntroduction, Nicaragua willfirstidentify
the legal and factual issues that now, at theconclusionof two roundsof written
pleading,no longer appearto be in dispute. The written pleadingshavenarrowed
the dispute in some significant respects,and these are pointed out in the first
sectionof the Introduction.
1.3. The secondsection of the Introduction identifiesthe remaining disputed
issues, and pointsout how they have been sharpenedby the written pleadings.
This section also provides an overview of the arguments and evidence that
Nicaraguawill add tothe debate in Chapters I1throughVI of this Rejoinder.
1.4. The third and final section of the Introduction describes the structureof
theRejoinder.
1.5. Beforeproceedingfurther,however, Nicaragua wishesto coment on the
tone of theReply,which shehopesthe Court will findnot to have beenreplicated
in this Rejoinder.In particular, Nicaragua wishesto express herdismayover the
language in theReply, which calls the Counter-Memorial"disingenuous" andaccuses Nicaragua of fabricating "distortions" ofthe law and the facts that are
"not accidental". Nicaragua, of course,rejects these accusations, and stands
behind her Counter-Memorialin all respects. Tobe sure,Nicaraguaregards it as
entirely appropriateto criticizethe argumentsof the otherparty, and topoint out,
forcefully at times, the flaws in the other party's logicor the lack of factual
support for itscontentions. Indeed, this Rejoinder does just that with respect to
what Nicaragua regards as Costa Rica's fallacious arguments in the Reply.
However, the Rejoinder nowhere accuses Costa Rica of deliberate or "not
accidental" distortions,or of "disingenuousness",or similar formsof dishonesty
or bad faith. Nicaragua believes that such accusations have no place in
proceedings before the Court, andespecially between two States that are good
neighbours andsisterrepublicsof CentralAmericawith a longhistoryofpeaceful
andpositive relations.
Section I. Pointsof Agreement
1.6. With the submissionof the Memorial, the Counter-Memorial,the Reply,
and now this Rejoinder, the parties have either agreed upon, or at least not
disputedthe following legaland factual issues, whichmay nowbe taken as fully
establishedby the Court:
e The rights claimed by Costa Rica in this case, if they exist, come
from the 1858Treaty of Limitsbetween Costa Rica andNicaragua
and/or the 1888 Cleveland Award,which interpreted that Treaty,
and from no other legal instruments. Thus, the Treaty of Limits
and the Cleveland Awardrepresent the governing law for this
case.The Treaty of Limits was a boundary treaty that had as its
principal object and purposethe settlement of the entire land
border between CostaRica and Nicaragua, and that, inter alia,
includedNicaragua's concessiot nhat herformer DistrictofNicoya
wouldbe part of Costa Rica.The annexationby Costa Ricaofthis
district four years after independenhad been hotly disputedby
Nicaragua.
The Treaty of Limits provided, and the Cleveland Award
recognized, that the waters of the San Juan River belong to
Nicaragua, who enjoys "exclusive dominionand supremecontrol
(sumo imperio)"over the river.
The Treaty of Limits provided, and the Cleveland Award
codied, that Costa Rica would enjoy the "right of free
navigation...conobjetosde comercio"onthe San Juan River.
The ClevelandAward providedthat Costa Rica would enjoythe
rightto navigateonthe San JuanRiver withvesselsof her revenue
service when necessary to protect her right to navigate "for
purposes of commerce"; President Cleveland rejected Costa
Rica'ssubmissionthat shehada right to navigateon theriver with
vesselsof war.
In securingfor herselfa "right ofeenavigation...conobjetosde
comercio" on the San Juan River, Costa Rica achieved her
longstanding objectiveof obtainingthe right to use the river as an
outletto the Caribbean SeaandAtlantic Ocean forherexporttrade
totheEuropeanmarket,principallyher exportof coffee.0 Although the importance of theSan Juan to Costa Rica's export
trade declined soonafter the Treatyof Limitswas executed,due to
the constructionof a railroad linkingher coffee-growingregion to
her Caribbeanports and otherfactors, CostaRica continued touse
the riverfor the next 150years principally forthe small-scaletrade
of goods betweenthe interiorof the countryand the smallhamlets
thatwereestablishedalongher (right)bankofthe river.
0
There was no regulartransport of tourists to the San Juan River
until the early 1990s, when Costa Rican vessels began bringing
tourists along what the Reply describes as the "tourism route"
down the Sarapiqui River (in Costa Rica) to the San Juan, then
east along the $an Juan for approximately24 km, then downthe
Colorado River(in CostaRica). Although Nicaraguaclaimed (and
claims) thatCosta Rican vessels haveno right to transport tourists
on the San Juan (since they are not "objetos de comercio"in
Nicaragua's view), she never sought to prohibit or restrict this
practice. Instead, she adopted and implemented regulationsthat
serve her sovereign interests of environmental protection, crime
prevention,navigationalsafetyandborder security.
0 These regulations require vessels of all nationalities (including
Nicaraguan vessels) carryingtourists to the San Juan to register
with the Nicaraguan authorities upon entering and exiting the
river, to undergo aninspection and obtain a clearance certificate
assuring seaworthinessand the absence of contraband,to process
passengerswho are not Nicaraguan nationalsor local Costa Rican
residents through Nicaraguan immigration,and to refrain from
navigatingon theriver afternightfall.a Given the nature of Costa Rica's use of the river during the 150
years thatthe TreatyofLimitshasbeenin effect,whichhasturned
out not to involve a significantexport or import trade, and the
absenceof anythreatto commercialnavigation on theriver, Costa
Rica has not had a need to deploy vesselsof her revenue service
ontheriverforthepurposeof protectingher right tonavigate "con
objetos de comercio", andhas not done so. Nicaraguahas never
prohibitedor interfered with navigationon the river by any Costa
Ricanrevenueservicevessel.
8 As shownin theReplyandthe Annexes thereto, navigation on the
San Juan by Costa Rican public (as distinguished from
cornrnercial) vessels has neverbeen "con objetos de comercio",
but for one of three public purposes: bringing supplies or
replacement personnelto border postson Costa Rica'sbank ofthe
river; engaginginjoint law enforcementactivitieswith Nicaragua;
or deliveringsocial servicesto local hamlets on the Costa Rican
shore.Until themiddleof 1998,CostaRican authorities requested
and obtained permissionfromtheir Nicaraguan counterparts prior
to these voyages, and Nicaragua imposed conditionson the
navigation which Costa Rica accepted and complied with,
includingthe conditionthat the Costa Rican officials aboard these
vesselstravel unarmed.
@I In May 1998,the newly-elected governmentof Costa Rica took
office and changed Costa Rican policy regarding the San Juan
River. Under thenewpolicy,whichthe new PresidentandPublic
Security Ministerof Costa Ricasaidwas aimed at stoppingillegal
immigration from Nicaragua, CostaRican security forces (the Guardia Civil) were directed to ignore the Nicaraguan
requirements for navigating on the river, and to deploy their
vessels on the river with armed personnel, without seeking
permissionfromornotifying theirNicaraguan counterparts,for the
purpose of intercepting and detaining Nicaraguan citizens
navigating on the river who were suspectedof preparing to enter
Costa Rica illegally. After several such interceptions and
detentions ofNicaraguansnavigatingon the river, on 14July 1998
Nicaragua instructed Costa Ricato stop this practice.When Costa
Rica refused, Nicaragua prohibited all further navigationon the
riverby CostaRicansecurityforces.
0 Sincethen, Costa Rican security forceshave notnavigated on the
San Juan River. They have brought supplies and replacement
personnelto border posts along the SanJuan by land. Deliveryof
social services to riparian communities has continued, however,
subjectto the same conditionsthat existedbefore July 1998:prior
authorization by Nicaragua, registration of the vessel upon
entering and exiting the river, and inspection of the vessel to
assure seaworthinessandabsenceof contraband.
Section II. RemainingPointsofDisagreement
1.7. While there are a number of disputed legal and factual issues, they all
derivefromtwo fundamentalpointsof disagreement betweenthe parties.The two
disputesatthe heart ofthis case are:
First, whether Costa Rica has a right to navigate onthe San Juan
a)
River forpurposes otherthan navigationwith articlesof trade; and whether Costa Rica'sright of navigationis subjectto no controls
by Nicaragua; or whether Nicaraguahas a right to impose
reasonable regulations on navigation to serve her sovereign
interests in environmental protection, crime prevention,
navigational safety and border security; and whether the
regulations in fact imposedby Nicaragua for these purposes are
reasonable.
6) Second,whetherCosta Rica hasa right to navigateonthe SanJuan
River with her public vessels for all purposes, including law
enforcement activitiesand deliveryof social services unrelatedto
trade or commerce;and,if so, whether Nicaragua hasthe right to
regulate such navigation to protect her sovereign interests
describedabove, and whether shehas regulatedreasonablyin this
case.
1.8. With regard to the former issue, CostaRica claims a right under the
Treaty of Limits and the Cleveland Award to transport tourists as well as
commercial goods on the San Juan River. For Nicaragua, Costa Rica's
navigation right underthose controlling legal instrumenis limitedto navigation
con objetos de comercio, whichmeans "with articles of trade" not passengers.
However,Nicaraguahas not soughtto stop CostaRicanvesselsfkomtransporting
tourists alongthe San Juan; she has soughtonly toregulate thepractice. Costa
Rica claims that her right under the Treaty andthe Award is ''free"of all
regulation by Nicaragua. Nicaragua argues that,as the State endowed with
"exclusivedominion and supreme control(sumo imperio)"over the river, she
necessarilyhas the rightto regulate navigation,as long asshedoesso reasonably
andin defenceofher legitimatesovereigninterests, andthat in facther regulation
ofthis activityhasbeeneminentlyreasonable.1.9. Much of thedebatethus farhas centredon the meaning of thewords "con
objetosde comercio," and, specifically,whether theyare properly translated into
English as "with articles of trade" (Nicaragua's translation)or "for purposes of
commerce" (Costa Rica's translation). For example, Costa Rica devotes 37
paragraphs ofher Reply (consuming 13pages) to her argumentthat the Spanish
word "objetos" means "purposes" or "objectives," in addition to two lengthy
tables of "contemporaneoususages" that occupy another 53 pages on the same
general point. Presumably, Costa Rica's intention is to demonstrate that the
"purposes"or objectivesy' of commerceinclude performanceof services, suchas
tourism,as well astrade in goods, although,curiously, only threeparagraphs(and
less than two pages) of theReply address the issue of whether the quoted
languagegives CostaRica a rightto transporttouristson the San Juan.
1.10. Nicaragua's position, first articulated in the Counter-Memorial and
supported bynew evidence in this Rejoinder from the Spanish Royal Academy
(AcademiaReal), is not only that the correct translationof "objetosde comercio"
is "articles of trade," but that, evenif Costa Rica's translation were correct, the
phrase would mean thesamething, and limitCostaRicato a right to use the river
to trade in goods. Thatis because the most important word in the phrase is not
"objetos" but "comercio," a word that the Reply,for all its focus on "objetos,"
virtually ignores. As will be shown below, the word "comercio," which is
properly translated either as "trade" or "commerce," could only have meant
"tradein goods" to the mid-nineteenth centurydraftersof the Treaty of Limits. At
that time, the concept oftrade or commerce referred to the purchase, sale,
delivery, export or import oftangible goods. The idea that trade or commerce
could includeperformanceof services, aswell as trade in goods, did not emerge
until the following century. It is a twentieth, not a nineteenth, century
constructionof the term. Furthermore,all of the evidence showsthat the partiesclearly understood,bothatthetime theyexecutedthe TreatyofLimitsandforthe
next 120years or more,that the rightthat CostaRicawas accordedwas a rightto
navigate witharticlesof trade, not arightto transportpassengers,andthatno one
in 1858or for the next 120years envisioned thatthere would ultimatelybe an
ecotourism industrythat would transport touristsalong the San Juan River.
Indeed,this provisionin the Treatyof Limits was theculminationof at leasttwo
decades of effortsby Costa Rica, which had continuouslyand urgently sought
accesstothe SanJuanas a traderouteto theAtlantic,so that shecouldexporther
coffee and other products to Europe, not so that she couldconduct sightseeing
excursionsto the area. Thus, evenif "objetosde comercio"means"for purposes
of commerce,"an interpretationwithwhichNicaraguadisagrees,the"commerce"
in question canonlyreferto thetradeoftangible goods.
1.11. CostaRica is notunaware that"comercio" in1858couldonlyhavemeant
the trade of tangible goods.That is why the Replygoesto such lengthsto argue
for an "evolutionary"interpretationof the Treaty of Limits, and struggles to
characterizeit as something other thana boundary treatyand thereby avoid the
obvious legaldifficultiesof applying suchan interpretationto a Treaty of this
nature. Theseefforts areto no avail.As shownin the Counter-Memorial,and as
will be fwther shown within, the Treaty of Limits is not a misnomer.It is an
accurate reflection of what the Treaty is. It is a Treaty of Limits, that is, a
boundarytreaty, whoseprincipal object and purpose wasthe settlementof the
entireboundarybetweenNicaraguaand Costa Rica. Among its provisions is its
endowment ofNicaragua with "exclusive dominionand supreme control(sumo
imperio)"overthe San JuanRiver.As discussed below,great caremust betaken
to avoid the "evolution" ofa treaty in a manner that diminishes a State's
sovereignty.Yet,that isexactlywhat CostaRicaseekshere.1.12. While it should already beperfectly clear, Nicaragua wishesto leave no
doubtthat she fullyunderstands and acceptsthat Costa Rica enjoys a right under
the Treaty of Limits and the Cleveland Award to navigate on the river "con
objetosde comercio," and thatshe may not stop Costa Rica fiom navigating on
the river "con objetos de comercio." But she hasnever attempted todo so. This
case is not about Nicaraguapreventing Costa Rica from navigatingon the river
with articles of trade. Costa Rica has presented no evidence of a dispositionby
Nicaragua to engage in such behaviour,let alone evidenceof actual interference
byNicaraguawith theexerciseofthis right.
1.13. To the contrary,this caseis not abouttrade,but about CostaRica's claim
that her right of fiee navigation with "objetos de comercio" includes fiee
navigationfor all private commercialpurposesincludingtourism. And evenhere,
althoughNicaragua stands by herinterpretationof the Treatyof Limitsthat Costa
Ricahasno rightto conducttourismexcursionsalongthe SanJuan, she hasnever
sought to stop Costa Rica from engaging in this activity. Rather, Nicaragua's
conduct has beenlimitedto adoptingand implementingreasonable regulationsto
ensureboth that (i)the activitywill continue, and(ii)that itwillbe conductedin a
manner that does not harmNicaragua's legitimate sovereign interests.As shown
in the Counter-Memorial, andas will be further shown below, because she isthe
sovereign power over theriver Nicaragua has a right to impose reasonable
regulations on navigation, including navigation by Costa Rica; and the
regulations imposedby Nicaragua are in fact reasonable.As indicatedabove, the
parties are in agreement on what the regulations do: they require all tourism
vessels (including those fiornNicaragua) to register withl~icaraguan authorities
on entering and exiting the San Juan, to undergo an inspection and obtain a
clearance certificate as to seaworthiness and absence of contraband, to have
foreign passengers processed by Nicaraguan immigration authorities, and tonavigate only during daylighthours. In this Rejoinder, Nicaragua willshow that
all of these requirements are justified by Nicaragua's legitimatesovereign
interests, includingher interests in environmental protection,crime prevention,
navigational safety and border security. She will also show that these
requirements imposeno more than minor inconvenienceson tourism operators
and their passengers.In fact, contraryto the unsupported assertions inthe Reply,
it will be demonstratedbelow that the recently initiated Costa Ricantourism on
the SanJuan actuallyincreasedafterNicaragua's regulations went into effect.
1.14. In consideringthe reasons supporting Nicaragua's regulations, particular
attention is due to her need to protect the delicate ecosystemof the San Juan
River and the smounding area. The river forms part of one of the most
ecologically diverse, valuableand .fragileareas in the Western Hemisphere. In
1990,Nicaragua designatedmore than 435 km2 of the southeasternportionof her
territory, includingthe San Juan River, as the environmentally-protectedIndio
Maiz GrandBiologicalReserve,hometo morethan 500 speciesofwildlife,many
of them endangered, and many rare plant species. The area covered by this
Reservewas laterexpandedto morethan 3,150la?. In 2001,the San Juan River
was designated as a wetland of internatiolnal importance under the Ramsar
Convention,obligating Nicaraguato afford greater protectionto her dwindling
andendangeredspeciesof fish, crustaceansand other aquaticlife.Topreserve the
San JuanRiver WildlifeRefuge,which was carved out of the IndioMaiz Grand
Biological Reserve, and to protect both of them against illegal poaching of
animals, fish, trees and other plants, Nicaragua (unlikeCosta Rica) prohibits
humanhabitationonher sideof the river. As a result,there areno settlements on
the leftank of the river between the Bartola River (at the western end of the
portion ofthe river where Costa Rica enjoys navigation rights)and the townof
SanJuandelNorte, where the riveremptiesinto the CaribbeanSea. Protectionofthe San JuanRiver WildlifeRefuge andthe adjoining BiologicalReserve against
the illegal clearingand settlementof land, andthe poaching of animals,fish and
plant life, also requires constant vigilance by the Nicaraguan Army (which is
responsiblefor the securityof this remoteregion, there beingno police presence)
and officials of the Ministry of the Environmentand Natural Resources. It
requires, inter alia, registrationand inspectionof all vessels travellingon the San
Juan to assure that neither the vessels themselves nor their passengers pose
pollution, predation or other seriousrislts to the ecosystem. Given Costa Rica's
internationalimage as a staunch defender andprotector of the environment,it is
disappointingthat she seems sounsympatheticto Nicaragua's effortsto prevent
the sametype of human destructionof naturalbeauty on the left bank of theriver
that CostaRicahas,unfortunately, allowed totake place on her ownright bank1.
1.15. With regard to the secondfundamental dispute between theparties, itis
Nicaragua's contention,based on the express language of the Treaty ofLimits
and the Cleveland Award, as well as the consistent practice of both parties
subsequentthereto, thatCostaRicahasno right to navigateonthe San Juan River
with herpublic vessels, savefor the limited rightto navigate with vessels of her
revenue service,and even thenonlywhen there is a necessityto protecther right
to navigate "con objetos de comercio". Costa Rica purports to find in these
controllinglegal instnunents a generalright of navigationfor her public vessels.
As Nicaragua has demonstratedin the Counter-Memorial, andas will be further
shownbelow,no suchright can be foundin the text of the Treatyof Limits or the
'Nicaraguais fiutherdismayedby Costa Rica's recent announcementi,n June2008,that she has
authorizedthe operationof an openpit goldmine at Las Crucitasnear the border withNicaragua,
which is expected by CostaRican andNicaraguan environmental groups to pothe SanJuan
River with cyanideandother toxicchemicalsusedin the mining process.See "CostaRican Mine
Has UnleashedConcern in Nicaragua,"MiamiHerald (Miami,FL), 21 June 2008.NR, Vol. 11,
Annex27.Cleveland Award.In fact, as explainedbelow, CostaRica'sargumentsin support
ofher allegedright tocustody,protectionand defenceofthe riverwithherpublic
vessels is not only non-existent, but was specifically rejected by President
Clevelandin 1888. There is nothingnew aboutCosta Rica's arguments inthe
present case. They are the same ones she made unsuccess~lly to President
Cleveland 120 years ago. He rejected them and so should the Court. Aftera
thorough review of the issue, all he conceded to Costa Rica was a right to
navigatewith her revenuevessels,and onlythenwhen it is necessaryto do so in
order to protect the right to navigate "for purposes of commerce."There isno
other right to navigate with public vessels, letalone to navigate with public
vessels forpurposes unrelatedto commerce.
1.16. This is confirmed by the consistent practiceof the two parties between
1858and 1998.Costa Ricapresentssomeevidence inher Reply andAnnexes on
the use of the SanJuanRiverby her public vessels duringthe centuryand a half
followingthe executionofthe TreatyofLimits. Nicaraguahas carefullyreviewed
all of Costa Rica's evidence. As will be shown below, it actually supports
Nicaragua's position, not Costa Rica's. Indeed,Costa Rica has produced no
evidence that she has ever navigatedon the river with vesselsof her revenue
service, orhad a need to do so. Nor is there anyevidencethat Nicaraguaever
interferedwith her right to navigaten suchmanner.Instead,what the evidence
produced by Costa Rica shows is that, duringthe past 150 years her public
vessels havenavigatedon the river foronly threepurposes,none relatingto her
right to navigateconobjetos de cornercio." In all cases, save fora brief period
between Mayand July 1998,the CostaRican vessels engaged in the navigation
sought and obtained Nicaragua's express prior authorizationto conduct the
voyage,andagreedtoand compliedwiththe conditionsimposed by Nicaragua on
the navigation.Thus, theevidenceof subsequentpracticeby theparties submittedby Costa Rica is entirely consistentwith Nicaragua's position thatCosta Rican
public vessels enjoyno right ofnavigation on the San Juan River,and may only
do soupon Nicaragua's authorizationand subjecttoNicaragua's conditions.
1.17. CostaRica's evidence showsthat by far the most fiequentuse of theriver
by her public vesselshas been tobring suppliesand'reliefpersonnelto theborder
posts she has maintainedon the right bank of the river. She has presented one
example of this practice in 1892, and then many other examples between 1994
and 1998, and more thereafter. TheReply (includingthe documents and witness
statements annexed toit) - as well as the statementsfiom Nicaragua's witnesses
annexed to this Rejoinder - make clear that Costa Rican authorities regularly
sought and obtained authorization fiom their Nicaraguan counterparts before
embarking on these supply and relief missions, that they stopped to report at
Nicaraguan Army postsupon entering and leavingthe river, that they submitted
to inspection of their vessels, and that their personnel were unarmed while
travelling on the river (with arms stored on the floor of the vessel) and
accompanied by NicaraguanArmy personnel. The evidence submitted by both
parties shows that this was the consistent practice between 1994 andthe middle
of 1998 when,tellingly, Costa Rica asserts that Nicaragua first began to violate
her rights in a systematicway. In other words,CostaRica admitsthat the system
in place between 1994and the middle of 1998,as described in the documentary
evidence andas summarizedabove,didnot violateher rights.
1.18. Nicaragua disputesthat she everviolated CostaRica'srights,muchless in
a systematicway. However, Nicaragua agrees that a major changein relations
betweenthe parties, and in theirpractices onthe river,tookplace inthe middle of
1998. The evidence shows that after newly-elected President Miguel Angel
Rodrigueztook office in May 1998,he and his new Ministerof Public Security,JuanRafaelLizano,made an abruptandaggressive changein CostaRica'spolicy
regardingnavigation on the San Juan River. Theypublicly announced that they
would no longer accept Nicaragua'sconditions fornavigating on the river with
public vessels belonging to the Guardia Civil (which, although Costa Rica
proclaims to the world that she has no army, constitutes nothing less thanan
army, withits more than 12,000 military personnel trainedand armed byforeign
powers, andits heavy weapons far in excessof anythingpossessedby Nicaragua).
Instead, they announced, theGuardia Civil thenceforth wouldsend its vessels
onto the river with armed personnel, and without requesting authorization from
Nicaragua,for the purpose of combatingillegal immigrationfromNicaragua.In
implementation ofthis new policy, theGuardia Civil,by force of arms, beganto
intercept and detain Nicaraguans, who were navigating on the San Juan River
(that is, in Nicaragua's sovereign territory) withan intention (as intuitedby the
Guardia Civil)to enter Costa Rica illegally.As reflected in the annexesto the
Reply,the Guardia Civil carried out severalof these missions in Juneand early
July of1998.
1.19. Nicaragua, through herArmy, instructed the Guardia Civil to stop this
practice immediately, explaining that it was a violation of Nicaragua's
sovereigntyforthe Guardia Civilto navigateonthe San Juan withoutNicaraguan
authorization,and an offenceagainstNicaragua'ssovereigntyfor foreign military
forces to detain and capture Nicaraguancitizens in Nicaraguan territory.Men
the Guardia Civil defied Nicaragua's instruction and claimed thatthe need to
protect Costa Rica against illegal immigrationjustified her unilateral and
unprecedented actions, Nicaragua, though her Army, prohibited all further
navigationon the San Juan by vessels of the Guardia Civil.The documentsand
witness statements submittedby both parties,in the Replyand in this Rejoinder,
concur thatthe NicaraguanArmy gavethis orderto the Guardia Civilon 14 July1998, and that thereafter the Guardia Civil's interception and detention of
Nicaraguans navigatingon the river ceased,as did the GuardiaCivil'spractice of
using the river to bring suppliesand relief personnel to its posts along the river.
Accordingto the GuardiaCivil'sownrecords, annexedto theReply, after 14July
1998 the Guardia Civilregularly brought supplies and relief personnelto these
postsby land insteadof byboat.
1.20. Nicaragua maintains that her prohibition on the Guardia Civil's
navigationon the SanJuan after 14July 1998violatedno right of Costa Rica. In
the firstplace, Costa Rica enjoysno navigationrights forher public vessels, other
than for vessels of her revenue service engaged in the protection of her right to
navigate"con objetosde comercio". Beyondthis, the practice of the parties prior
to CostaRica'ssuddenanddramaticpolicy changein May 1998confirmsthatthe
Guardia Civil only navigated on the San Juan when authorized to do so by
Nicaragua, and subject to conditions imposed by Nicaragua. Finally, the
conditions imposed by Nicaragua, including the requirement that soldiersof a
foreign military force transit Nicaraguanterritory without bearing their arms,
were reasonable exercisesof Nicaragua's sovereign authority over theriver, and
warranted by Nicaragua's objectiveof protecting her own legitimate sovereign
interests.
1.21. Costa Rica's evidenceshowsthat the two other uses ofthe river made by
her public vessels were also subject to the express prior authorization of
Nicaragua. In the Reply and its Annexes, Costa Rica presents one instance of
bilateral collaboration in law enforcement activities 'from 1892, and several
examples ofjoint law enforcement exercisesfkom the period 1994-1998. The
documents submitted by Costa Rica show that the express authorization of
Nicaragua'sgovernment wasobtainedbeforethe 1892incident,andthat all oftheother law enforcement activitieswere planned and carried out jointly with
Nicaraguan Army personnel, obviously withNicaragua's authorization.
Significantly,the logs of Guardia Civilactivitiescoveringthe period 1994-1998,
which Costa Rica annexed to the Reply, identify not a single case of law
enforcementactivitiesconductedon the river by Costa Ricanpersonnel priorto
June 1998other than thoseconducted jointly with Nicaragua.As indicated, in
June andearlyJuly 1998,the Guardia Civilunilaterallyand without authorization
sent its vessels on the river to intercept and detain Nicaraguans thoughtto be
potential illegal immigrants, but Nicaraguaimediately protested these actions
and,becauseof them,prohibited furtheruse ofthe riverby the Guardia Civil. As
a consequenceof this prohibition,no fwther law enforcement activitiesby Costa
Rica have been carried out on the river, either unilaterally or jointly with
Nicaragua. Nicaragua's refusal to authorize fwther joint law enforcement
exercises doesnotviolateanyrightsofCostaRica.
1.22. TheReplyshowsthat theonly other useof theriver madeby CostaRican
public vessels has been for the deliveryof certain public services - including
medical,educationaland social welfare services- by Costa Rican public officials
to the small hamlets on Costa Rica's side of the river. Although Nicaragua
maintainsthat Costa Ricahas no rightto usethe riverwith her public vessels for
these purposes, she has not objectedto the practice. Nicaraguamerely requires
that Costa Rican vessels engaged in this form of navigation obtain prior
authorization,register at Nicaraguan postsupon entering and leaving the river,
and undergo an inspectionfor seaworthiness andpresenceof contraband. Inthe
caseofvesselstransporting CostaRican officials engagei dn the deliveryofsocial
services,no fees are chargedfor the inspection andclearancecertificate,or for
any other purpose. CostaRica'sownwitness statementsby governmentofficials
whonavigatedon the riverfor these purposes, annexed to theReply,confirmthatNicaragua has regularly permitted the navigation to take place subject to these
very conditions. While Costa Rica has presented evidence that some of her
officials had difficulties in 2006 obtaining visas to enter Nicaragua, it appears
fiom the Reply itself that the visas were almost always issued, and that the
problems were resolvedby 2007, when Nicaraguan visas began to be issued
more expeditiouslyto CostaRicans.
1.23. Here again, CostaRica has failed to make out a case that Nicaraguahas
violated her rights under the Treaty of Limits orthe ClevelandAward. Neither
providesa right forCostaRican public vesselsto navigate on theriver in orderto
deliver social services. Moreover, Nicaraguadoes not prevent this practice; she
merely regulates it, and her regulations are both reasonableand inherent to her
"exclusive dominion andsupremecontrol(sumoimperio)"overthe river.
Section111. Structureof theRejoinder
1.24. Following this Introduction, ChapterI1 describes the ApplicableLaw in
responseto Chapter11oftheReply.
1.25. Chapter 111addresses The Nature and Extent of CostaRica's Right To
Navigate "con Objetos de Comercio," and responds to Chapter 111,SectionsB
andC of theReply.
1.26. Chapter lV describes the Reasonableness ofNicaragua's Regulationof
Navigation on theSan Juan River, and respondsto Chapter 111,Section E, and
ChapterFour, SectionsB and E of theReply.1.27. ChapterV addresses CostaRica's AllegedRights of Protection, Custody
and Defence of the San Juan River, and respondsto ChaIIISectionsD and
F, andChapter Four,SectionsC,D andF, of theReply.
1.28. Chapter VI discussestheRemedies requestedby the parties,andresponds
to ChapterV of theeply.
1.29. Following ChapterVINicaragua concludesVolume Iof thisRejoinder
with her Submissionsanda historical Appendix,which respto theAppendix
intheReply. Volume11of theRejoindercontainsthe Annexes TREAPPLICABLELAW
SectionI. TheCharacterofthe 1858 Treatyas a TreatyofBoundaries
2.1. The general characterof the Treatyof 1858remainsa centralelementof
the disputebefore theCourt. In herMemorialCostaRicaprovidesan Appendix
in which it is asserted thatthe San Juan River"is governedby aninternational
regimem2.This propositionisthen elaboratedon the basis thatthe San Juanis an
"international riverw3. This concept isased upontwo considerations:first, that
the San Juan is "a waterway regulated by international instruments"; and,
secondly,that "the San Juanis a navigational waterway whose banlcsbelong to
twodifferentStates."
2.2. In the same sectionofthe AppendixtheMemorialconcludes:
"To sum up, the San Juan possesses an internationalstatus,
since its banks belong to two different States,it provides
accessto the seato bothof them andits regimeis regulatedby
internationallaw,particularly treatylaw.''4
2.3. In principle, thepositionof Costa Ricaas presented in theReplyremains
the same, asinthesepassages:
CRM,para. A2.
Ibid., parA7.
Ibid., para.A3. "2.35. According to Costa Rica, three elements are
traditionally associated with the existence of international
watercourses: (i) the presence of different riparians; (ii) the
fact that the watercourse, if navigable, offers access to and
fkomthe sea to morethan one State; and(iii) the existenceof a
treaty regime.
2.36. To qualify as an international watercourse, a river does
not invariablyhave to fulfil all three conditions. But the San
Juan fulfils them all. It is therefore, unquestionably, an
internationalaswell as aboundaryriver."
2.4. However,there areelementsof confusionand contradiction. Inparticular,
there is a new emphasis upon therole of the San Juan as a boundary river (see
Reply paragraph 2.36, quoted above) and the allegation that this involves a
"disadvantaged
2.5. The text of the Reply makes a very limited and fkagmentedeffort to
contradict the argument of Nicaragua in her Counter-Memorialrelating to the
character, objectandpurpose of the 1858~reaty~. Thepurpose of this sectionof
Chapter I1is to counter the distortions in the Reply and to reinforce the central
place of theevidence ofthe objectandpurposeofthe Treatyof Limits.
2.6. It is clear that the applicablelaw takes the form of the provisionsof the
1858 Treaty, the Cleveland Award and the principles of general international
CRR,para. 2.36.
Ibid.,para. 2.33.
SeeNCM,paras.2.1.1-2.1.66law8. The ClevelandAward is discussedin Section111,and the role of general
internationallawis revisited in SectionI1ofthe present chapter.
2.7. It is the general positionof the Applicant State that thecase is related
exclusivelyto navigation rightsby virtue of ArticleVI of the 1858 Treaty. This
position is intended to avoid a number ofsubstantialflaws in the claim ofCosta
Rica. And a major difficulty facedby the Applicantis the true characterof the
legal andhistorical context.
2.8. The primary objectand purpose of the 1858 Treatywas to settle a long-
standingdispute concerningtitleto territory. In herpleadings CostaRicaappears
to deny the reality of this, but fails to controvert the factual record. In her
Counter-Memorial Nicaraguahas set forth the negotiating history asrecordedin
the Rives Report dated 2 March 1888'. Costa Ricamakesno effective challenge
to this record. What she saysis this:
'Wicaragua's attempt to present itself as the loser in the
bargaining leading to the Treaty of Limits of 1858 has no
historical basis. Its presentationof theidpro quo leadingto
the 1858 Treaty unjustifiably minimizes the importance of
CostaRica'sperpetual rightof fkeenavigation,as explainedin
the Appendix to this Reply. Despite thefact that Nicaragua
attached importanceto Rives'Report, it ignoresthefact that
Rives himself declaredinthatReport:
'thatCostaRicahad for nearlythe sameperiodof twentyyears
laid claimto more territorythan she obtainedunderthe Treaty
of Limits, fully appears fkom her decree of 'Basis and
Guaranties' of the 8th March, 1841 - which asserts as the
SeeNCM, para3.3.1.
SeeNCM,para. 2.1.22. boundaries of Costa Rica the line of the River La Flor, the
shoreof LakeNicaragua,andtheRiver San Juan."l0
2.9. But in her Counter-MemorialNicaragua doesnot ignore this part of the
RivesReport, andtherelevantpassageisnow quoted in full as follows:
"But with the establishmentof the Federal Republic, and still
more, with thedissolution,the questions ofboundarybegan to
assumeimportance.
The Federal Constitution seems tohave providedby its Article
VII for the demarcation of eachState;but neverthelessnothing
was done towardsthe establishment ofthe line between Costa
Rica andNicaragua.
In 1838 Costa Rica seemsto have urged upon Nicaragua -
then assuming the rank of an independent State upon her
withdrawalfi.omthe Federation - a desirefor a recognition of
the annexation of Nicoya. In 1846, 1848 and 1852 other
Jiwitlessnegotiationswere undertakenwith a view to settling
the boundary; and in 1858, when the Treaty of Limits was
signed, the question,in oneform or another, had been before
the two Governmentsfor at least twentyyears.
That the documentaryevidencewas slight and unsatisfactory,
has been alreadyshown;andthat CostaRica had for nearlythe
same period of twentyyears laid claim to more territory than
she obtainedunder theTreatyof Limits,fully appears fiom her
decree of 'Basis and Guaranties' of the 8th March, 1841 -
which asserts as the boundariesof Costa Rica the line of the
River La Flor, the shoreof LakeNicaragua, and the River San
Juan.""
2.10. This passage, as originally quotedin the Counter-Memorialwith the key
paragraph emphasised, providesa very clear indication of the historical context.
loCRR,para.2.67 (emphasis added).
l1NCM,para.2.1.24(emphasisadded).The primary element in the context was the initiatives taken by Costa Rica
relatingtothe recognitionof the annexationofNicoya.
2.11. In addition, Nicaragua refers to several bilateral treaties concellling
dispute settlement which prefigure the 1858 Treaty and which, though not
ratified, form part ofthe historicalcontext, asCosta Rica acceptsin her ~e~ly'~.
The first of these treaties was the Marcoleta-Molina Treatyof 185413. In her
Reply Costa Rica asserts that Nicaragua states that the 1854 Treaty "clearly
recognises that the River San Juan is entirely within~icaragua"'~and disputes
whetherthis refers to apre-existing sovereignty overthe river. This observation
in fact appears in paragraph 2.1.27 of the Counter-Memorialand refers to the
Juarez-CaiiasTreaty of 1857.
2.12. Whether or not the Marcoleta-Molina Treaty refers to a pre-existing
sovereignty overthe river, the text of Articles 1 and 2, quoted in the Counter-
Memorial, makesa series of referencesto differences"regarding sovereigntyof
certain territories" (Article 1) and issues "with respect to borders, inland
navigation, andsovereignty of whichever disputedterritories, rivers, and lakes
..."(Article2)15.
2.13. The second treaty invokedby Nicaragua in her Counter-Memorialis the
Juarez-CafiasTreaty of 185716. The Reply makes no attempt to justify the
l2See CRR,para.2.68.
l3SeeMarcoleta-MolinaPreliminaryTreat,8 January1854.NCM,Vol.11,Annex 4.
l4CRR,para.2.68.
l5NCM,para.2.1.25.
16See Treaty of Limits (Cafias-JuStr, July 1857 (unratified) (hereinafter"Cafias-JuStrez
UnratifiedTreaty"). CRM,VolIIA,nnex5;quotedinNCM,para.2.1.26.allegation of Costa Rica that Nicaragua's presentation of this treaty is
"misleading". In her Counter-Memorial Nicaragua observes that the Caiias-
Juirez Treaty "would have constituted a definitive boundary, had it been
ratified"17.What is certain isthe fact that the first article of the treaty spellsout,
with great clarity, the predominance of the District of Nicoya, otherwise
described as Guanacaste, in the agenda of disputes between Costa Rica and
Nicaragua. Thefirst Articleis asfollows:
"First:The Governmentof Nicaragua,as a signof gratitudefor
the Government of Costa Rica,for its good officeson behalf of
the Republic, for the solid determinationand great sacrifices
made for the causeofnationalindependence,waives,takes and
puts away every right on the District of Guanacaste,which is
now called the Province of Moracia ofthe Republic of Costa
Rica,to be understood,held, and acknowledged,fromnow and
forever, as an integral part of said Re ublic, under the
P
sovereignjurisdiction ofsaidGovernment." *
2.14. These treaty texts referto differencesconcerning titleto territory, andthe
central feature of these differences was the unresolved issue created by the
annexationofthe largeDistrictof Nicoya byCostaRicain 1824. Thequestionof
Nicoya has beencarefullyanalysedin the ~ounter-~emorial'~: The Memorialof
Costa Rica presents an account ofthe historical facts whichis based upona series
of omissions and distortions which have been chronicled in the Counter-
~emorial~'.
l7NCM,para. 2.1.27.
l8Cafias-JerezUnratified Treaty, CRM,Vol. 11,Annex5.
l9SeeNCM,paras. 1.2.2-1.2.4and 1.2.13-1.2.23.
20SeeNCM,paras. 1.2.48-1.2.49.2.15. In response to the detailed historical facts set forth in the Counter-
Memorial,Costa Rica has nothing of substanceto advance. What appears inthe
Replyis the followingparagraph:
"Nicaragua presents the several diplomatic attemptsto settle
the disputes between the two countries afier 1821 as being
travauxprkparatoires of the Treaty of Limits of 1858. Some
ofthese attempts endedup in the signatureof treaties,although
they were not ratified and consequently never enteredinto
force .. In any event, contraryto whatNicaraguanow claims,
the previous unratifiedtreatiesandother diplomatic exchanges
do not support an interpretationof the phrase 'con objetos de
comercio' as meaning exclusively transportof goods or as
excludingtransportofpassengers,aswillbe shownbelow."'
2.16. These perfunctory and arid observationsdo not meet the Nicaraguan
argumentrelating to Nicoya. Moreover, whetheror not the diplomatic materials
presented by Nicaragua are, formally speaking, travaux prkparatoires of the
Treaty of Limits of 1858, they constitute cogent evidenceof the issues the
resolutionof whichwas the objectandpurposeof the Treatyof Limits.
2.17. Whiletheprimary objectandpurposeof theTreatyof 1858wasto settlea
long-standingdispute concerningtitle to territory,there was a connected object
which involvedgiving Costa Rica the right to navigatethe San Juan River "con
objetosde comercio"and thusto provide CostaRica withanAtlantic (Caribbean)
outlet forher tradewith, and especially coffee exports to, Europe. This aspecotf
the Treaty, and the proper interpretationof the limiting phrase"con objetos de
comercio"willbe examinedin detail in Chapter III.
CRR, para.2.53 (footnoteomitted).2.18. At this stage in the argument it is opportune to point out the helpful
admissions to be foundin the Reply of Costa Rica. In the first place there is an
admission of the centrality in the Treaty of Limits of the dispute relating to
sovereignty over thefrontierareas. Therelevantpassageis as follows:
"The present case is not one in which one or more riparian
States decide to set up a particular fluvial regime, granting
rights to other riparians or even to non-riparians. On the
contrary, this case concerns a treaty which settled a dispute
with regard to sovereignty over the fiontier areas of both
countries, including over the Sun Juan River, recognising the
sovereignty over the waters and one bank to one of the
riparian States, and granting a perpetual right of free
navigation for purposes of commerce to the other. One
attribution (Nicaraguan sovereignty) isinseparable from the
other (Costa Rican navigation): the condition for the
acceptanceof thefirst was the acceptanceby the otherparty of
the second."22
2.19. The text which ishighlighted inthe quotationis broadly accurate,butthe
final sentenceinvolvesa false opposition. It was in fact Nicaraguawhich was to
suffer a large scale excision of territory, and the sovereignty of Nicaragua
acknowledgedin respect of theriver as suchconstitutedamodest recompensefor
the lossofthe Districtof Nicoya(~uanacaste)'~.
2.20. The next subject ofadmissionson the part of CostaRica is the pertinence
of the evidence of the object and purpose of the Treaty of Limits. The first
passageonthis topicreads as follows:
22CRR,para.2.69(emphasisadded).
23Title to the Nicoya (Guanacaste) District inthe territory of Costa Ricaby more than
25%of heroriginalterritory atthetime ofIndependencein 1821. "Formally, Nicaragua aclaaowledgesthat the provisions of
Article 31 of the Vienna Conventionof the Law of Treaties
reflect customary internationallaw andmustbe appliedin the
present case. However,some paragraphs later, Nicaragua tries
to focuson the needto 'discoverthe thoughtsof the author' in
order to interpret purported "obscure passages" of treaties.
Clearly, Nicaragua is inviting the Court to depart from the
main means ofinterpretationdepictedin the firstparagraphof
that Article: 'A treaty shall be interpreted in good faith in
accordancewith the ordinarymeaningto be givento the terms
of the trea? in their contextand in the light of its object and
purpose. 99,4
In this passage the Applicant Staterecognisesthe legal significanc oef the
context,togetherwiththe objectand purpose, oftheTreatyofLimits.
2.21. Thereis alsoa secondpassage intheReplywith the sameemphasis:
"Secondly,the interpretationmust correspondto the ordinary
meaningto be givento the termsof the treaty in their context
and in the light of the treaty'sobject andpurpose. As this
Court stated even before the adoptionof the 1969 Vienna
Convention,'thewords areto be interpretedaccordingto their
natural and ordinary meaning in the context in which they
occur' (Case Concerning the Temple of Preah Yihear, ICJ
Reports 1961, p.32)."25
2.22. Inthe lightof these passagesfkomtheReply,CostaRicaappears to accept
that the primary task is the interpretationof a bilateral treaty and that the
applicableprinciplesof interpretationof the Court arethose containedin Article
31of theVienna Conventionon the Lawof Treaties. Within thisbroadcontext,
24CRR,para.2.48(emphasisadded,footnotesomitted).
25CRR,para.2.51 (emphasisadded).Costa Rica contendsthat Nicaragua reliesupon "a restrictive interpretationof the
right of free The only referenceused in the ~e~l$~to support this
assertionis to paragraph2.1.51of the Counter-Memorial,which reads in material
part asfollows:
"There is a further important consideration arising fromthe
fact that Article VI does not provide for %ee navigation' tout
court, but only 'for the purposes of comerce either with
Nicaragua orwith the interior of Costa Rica, through the San
CarlosRiver,the Sarapiqui,or any other way,proceeding from
the bank of the San Juan River.' Thus the right of free
navigation is articulatedin the form of a careful statementof
purposes. Indeed,the contentof the Cleveland Award of 1888,
in its second finding, underlines the special purpose of the
right ofnavigationrecognised inArticleVI.'"*
2.23. The passagejust quoteddoes notuse the epithet"restrictive" anddoesnot
refer to a "principle ofrestrictive interpretation". In any case, the pleading of
Costa Rica accepts that "the issue is one of context"2g,and this is surely the
correct view of the law.
2.24. The Replyrefers in this context to the case-lawcited by ~icara~ua~': In
fact the only case discussed in the Reply is The Wimbledon. In the Counter-
Memorial,the argumentpresented was based on the provisions of the Treaty of
1858 establishing Nicaraguanterritorial sovereignty over the San Juan River,
with the exception of certain limited rights of navigation3'. Acomparison was
26CRR,paras.2.57-2.66.
27SeeCRR,para. 2.59,fn 154:"See,for example,NCM,para.2.1.5."
28NCM,para.2.1.51.
29CRR,para. 2.66.
30SeeCRR,para.2.59.
31SeeNCM, para.3.3.7.then drawnwith the similar legal scenario in theWimbledoncase32.In that case
the Permanent Courthad no hesitation inrecognisingthat the limitation placed
upon Germanyin respect of her sovereign rightsover the Gel Canal entailed a
restrictive interpretationof the clausewhich producedthe limitation. This, of
course,is not an exampleof the applicationof anintrusiveprincipleof restrictive
interpretation,but a referenceto the outcome ofthe specifictreatyarrangements.
E. THE APPLICATIO OFTHE GENERA LULE OF~TERPRETATIONTOTHE
TREATY OFLIMITS
2.25. The generally acceptedprinciples are set fin the ViennaConvention,
andthe dominant featureof these is the "generalrule of interpretation"in Article
3 1. In essentialpart, Art1cprovides:
"Generalruleof interpretation
1. A treaty shallbe interpretedingoodfaithin accordance
with the ordinarymeaningto be giventoeterms ofthetreaty
intheircontextand in thelightof itsobjectandpurpose.
2. The context for the purposeof the interpretationof a
treaty shall comprise, in addition to the text, including its
preambleandannexes.
(a) any agreement relatingto the treaty whichwas made
betweenall the partiesin connexionwith the conclusionof the
treaty;
(b) any instrumentwhichwas madeby oneor moreparties
in connexionwiththe conclusionof the treatyandacceptedby
the other parties as an instrument related to the treaty."
(emphasisadded)
2.26. Inaddition,Article32provides:
"Supplementary means of interpretation
3Seeibidpa,a.3.3.8. Recourse may be had to supplementary means of
interpretation,including thepreparatory workof the treaty and
the circumstances of its conclusion, in order to confirm the
meaning resulting from the application of Article 31, or to
determine the meaning when the interpretation accordingto
Article31 :
(a) leaves themeaningambiguousor obscure; or
(b) leads to a result which is manifestly absurd or
unreasonable."(emphasisadded)
2.27. These provisions give prominenceto the context and to the object and
purpose of a treaty. At the same time, the starting pointis always "the terms of
the treaty". In the pages which follow, the terms of the 1858 Treaty will be
analysed with particular referenceto the contextand to the particular objectand
purposeof settlingamajorandlong-standingdispute about land boundaries.
2.28. The attitude of Costa Rica to the question of discovering the object and
purpose of the 1858Treaty is one of ambivalence. On the one hand, the textof
theReply recognisesthe principle involved, as inthe followingpassages:
"2.50 Thefirstprincipleof interpretationis that of goodfaith
(.-1
2.51 Secondly, the interpretation must correspond to the
ordinary meaningto be given to the terms of a treaty in the,933
contextandin the lightof the treaty's objectandpurpose ..
2.29. However, the Applicant State is remarkablyreluctant in giving effectto
the criteria clearly expressed in Article 31of the Vienna Convention. In any
event, the Court has found it helpfulto rely on the criterion of applying the
provisionsof a treaty inorderto give appropriateeffect to its object andpurpose,
33CRR,paras.2.50-2.51.and has done so in eleven Judgments since 1986~~. Two of these decisions
involved the delimitation of boundaries. In the Reply Costa Rica seeks to draw
assistancefromthe Judgment in the Kasikili/SeduduIsland casd5. In her view, in
that case navigation is treated as an important elementof delimitation whenthe
delimitationconcernsinternationalwaterways36.
2.30. This argument is misconceived. The historical background was, of
course, markedly differentin the Kasikili/SeduduIsland case. The bacltground
motivation was not the nature of rights of navigation within a river ascribed to
one riparian, but the question of accessto navigable rivers,and especiallyto the
Zambezi. To enable equalityof accessto the Chobe,as a navigable river,and to
the Zambezi, the delimitation was to be the centre of the main channel. The
present case is very different. In any casenavigation wasnot the soleobjectiveof
therelevantprovisions,as seen from thetext ofthe Judgment.
2.31. The true position is spelled out clearly in the relevant passages from the
Judgment (with emphasis addedto the passage quoted out of context in the
Reply):
34See Militaryand ParamilitaryActivities case (Nicaragua v United States)I,CJ Reports 1986,
paras271-76;Case Concerning Border and TransborderArmed ActionsI,CYReports1988, para.
46; Case Concerning Applicationof the Conventionon the Preventionand Punishmentof the
Crime of Genocide,ICJ Reports 1996,para. 34; Case ConcerningOil Platjiorms,ICJ Reports
1996, paras.23-28; Case Concerning the Gabcikovo-NagymarosProject, ICJ Reports1997,
paras.133-47; Case ConcerningKasikili/SeduduIsland, ICJ Reports 1999, paras.43-45;-La
Grand Case,ICJ Reports2001, paras.101-102, Case ConcerningSovereignty over Pulau Ligitan
andPulauSipadan,ICJ Reports2002, paras.49-52;Case ConcerningAvena and OtheM r exican
Nationals, ICJ Reports,2004, para. 85; Case Concerning Legality of the Use of Force
(Preliminary Objections)I,CYReports,2004paras100-114;Case ConcerningtheApplicationof
the GenocideConvention,2007,paras.160-167.
35SeeICYReports 1999,p.1045.
36SeeCRR,para. 2.71. "44. The Court notes that navigation appearsto have been a
factor in the choice of the contracting powers in delimiting
their spheres of influence. The great rivers of Africa
traditionallyofferedthe colonial powersa highway penetrating
deep into the African continent. It was to gain access to the
Zambezi that Germany sought'a stripof territory which shall
at no point be less than 20 English milesin width' - terms
which wereeventuallyincludedin the provisionsof Article 111,
paragraph 2, of the Treaty. Admittedly,this strip of territory
did provide access to the Zambezi,but its southern boundary
was formed by the Chobe River, which was apparently
assumed tobe navigable, as suggested bythe use of the word
'Thalweg'in the text ofthe Germanversionof the Treaty. The
difficultiesof the landroute owing toregular flooding,and the
obstaclesto navigation on the Chobe, were,in all probability,
little knownatthe time.
45. The fact that the words 'centre of the main channel'
were includedin the draftTreaty on theinitiativeof the British
Governmentsuggeststhat Great Britainno less than Germany
sought to have access to the Zambezi. In order to mark the
separationof their spheresof influencethe contracting parties
chose 'the centreof the main channel' of the Chobe, thus
ensuring that therewas a well-defined,recognisableboundary,
in a watercourse that was assumed tobe navigable. There are
grounds for thinking that one of the reasons underlying their
decision was navigation, but the Courtdoes not consider that
navigation was thesole objective of the provisions of Article
HI,paragraph 2, of theTreaty. In referringto the main channel
of the Chobe, theparties sought bothto secure for themselves
freedom ofnavigation on the river and to delimit as precisely
aspossibletheir respectivespheres of infl~ence."~~
2.32. These passages provide no support for the Costa Rican thesis. The
situationinvolved the de novopartitionof largeregionsof a continentanddidnot
relate to the settlement of pre-existing territorial disputeslike that concerning the
annexationofNicoya. Furthermore,theuse of thecentreof the main channelas a
37ICJReports,1999,pp.1073-1074.division of areas of sovereignty (as well as access to navigable waters) is in
completecontrastto the arrangementseffectedby the Treatyof Limits.
2.33. The decisionin the Case ConcerningSovereigntyover Pulau Ligitanand
Pulau ~ipadan~'is relevant in indicatingthe utility of the determinationof the
object and purpose of a boundary treaty in the process of interpretation.
However,the decisionhasno more specific application forpresentpurposes39.
2.34. In addition to the jurisprudence of the Court, an extensive array of
doctrinerecognises the role of the object and purposeof a treaty as revealed in
the text4'. It is necessary to bear in mind that the referenceto the object and
purpose formsa part of the textual approachto the task of interpretation. The
position is elucidatedby SirIan Sinclairasfollows:
"Reverting to the general rule expressed in paragraph1 of
Article 31,we nowhaveto consider the relevanceof the object
and purpose of the treaty, in the lightof which it falls to be
interpreted. We have already noted that the preambleto the
treaty may assist in elucidating that objectand purpose. It is
also worthstressingthat referenceto the objectandpurposeof
the treaty is, as it were, a secondary or ancillary processin the
application of the general rule on interpretation. The initial
search isfor the 'ordinarymeaning'to begiven to the termsof
the treaty in their 'context'; itis in the light of the object and
38SeeICJReports, 2002,p.625.
39See ibid., p.652,para. 51,for the viewofthe Courtonthe delimitation.
40 See the following sources:Mc Nair, TheLaw of Treaties, 1961, pp.380-381; Rouss, roit
InternationalPublic, Vol. I, 1970,para.241; OppenheimInternationalLaw, gh ed.by Jennings
and Watts, Vol. 1,Peace, 1992,pp. 1271-1274;Thirlway,British YearBookVol. 62(1991),pp.
37-44; and ibid., Vol. 77 (2006), pp. 45-52; Sinclair, The ViennaConventionon the Law of
Treaties,2nded., 1984,pp.113-135;PodestaCosta andRuda,DerechoIntemacionalPziblico,Vol.
11,1985, pp. 103-105;Pastor Ridruejo,Curso de Derecho Intemacional Pziblico,2nded., 1987,
pp. 120-121. purpose of the treaty that the initial and prelimina 2"
conclusionmust be testedand either confirmedor modzj?ed."
2.35. The modalities of theprovision which was to become Article 31 of the
Vienna Convention werelaid out very clearlyin the Report of the International
Law Commissionto the General Assembly in 1966. Thereit is stated:
"(12)Paragraph 1containsthree separateprinciples. The first
- interpretation in good faith- flows directly from the rule
pacta sunt sewanda. The secondprinciple is the very essence
of the textual approach:the parties are to be presumedto have
that intentionwhich appears fromthe ordinary meaning ofthe
terms used by them. The third principle is one both of
common sense andgoodfaith; the ordinary meaning of a term
is not to be determinedin the abstract butin the context of the
treaty and in the light of its object and purpose. These
principles have repeatedly been affirmed by the Court. The
present Court in its Advisory Opinionon the Competence of
the General Assembly for the Admission of a Stateto the
UnitedNationssaid:
'The Court considers it necessary to say that the first
duty ofa Tribunalwhich is called uponto interpretand
applythe provisionsof a treaty, is to endeavourto give
effect to them in their natural and ordinary meaning in
the contextin which they occur. If the relevant words
in their natural and ordinary meaning make sense in
their context,thatis an end ofthe matter.'
And the Permanent Court in an early Advisory
stressed that the context is not merely the
Article or section of the treaty in which the term
occurs,but the treaty as awhole:
In consideringthe question beforethe Court upon the
language of the Treaty, it is obvious that the Treaty
must be read as a whole, andthat its meaning is not to
41Op.Cit.,p.130(emphasis added).
42See Competenceof theILO toRegulate AgriculturalLabour,PCIJ(1922),SeByNos. 2 and
3,p. 23. be determined merelyuponparticular phrases which,if
detached fkomthe context,may be interpretedin more
than one sense.'
Again the Court has more than once had recourse to the
statement of the object and purpose of the treaty in the
preamblein orderto interpretaparticularprovision.'743
1. The ObjectandPurposeIndicatedin the Textof the Treaty
2.36. It is now appropriateto analysethe evidenceof the objectandpurposein
the form of the title and text of the Treaty of 1858. Tfis analysis remains
necessarygiven thatthe Reply showsa strongaversiontothe examinationof the
text ofthe Treatyas awhole.
(a) The Titleand thePreamble
2.37. Thetitle of theTreaty speaks foritselt4. In the Spanish textit iTratado
de Limites entre Nicaragua y Costa Rica and, inEnglish, the Treaty of Limits
between Costa Rica and Nicaragua. In the text of the ClevelandAward it is
referred to as the "Boundary Treaty of 1858 between Costa Rica and
~icara~ua"'~.
2.38. The preamble forms a part of the context of a treaty, as specified in
paragraph 2 of Article 31 of the Vienna Convention. The Court has made
43Yearbook,ILC, 1966,Vol.11,p. 221 (emphasis added,footnotesomitted).
SeeCRM, Vol.11,Annex7.
45Costa Rica-Nicaragua, Treaty of Limits (Caiias-Jbrez), Nicaraguan English .translation
submitted to Cleveland.CRM,Vol.11,Annex7(c),AppendixB,p. 55.recourseto the statement ofthe object and purpose of the treaty in the preamble
intheprocessofinterpretation46.
2.39. The preamble to the Treaty of Limits of 1858 provides a clear
confmation of theobjectandpurposeofthe agreementas follows:
"We, Maximo Jerez, Minister Plenipotentiary of the
Government of the Republic of Nicaragua, and Jose Maria
Cgnas, Minister Plenipotentiary of the Government of the
Republic of Costa Rica, having been commissioned by our
constituentsto conclude a Treatyon the boundariesof the two
Republics, which mayput an end to the differences that have
retarded the better and more perfect understanding and
harmony which ought to prevail between them for their
common security and aggrandizement, having interchanged
our respective powers, ....and having in the presence and
with the assistance of the Representative of San Salvador,
discussed the different points with the necessary care and
precaution, have agreed on, and concluded the following
Treatyof boundariesbetween Nicaraguaand CostaRica.. 46"
2.40. Thus the explicit purpose of the two Govements was "to conclude a
Treatyonthe boundaries of thetwo Republics."
(b) TheProvisionsof the Treaty
2.41. Theprovisionsof the Treaty, bothin their indvidual content and in their
sequence,give priority and emphasisto the business of establishing a boundary
line. Article 1 explicitly indicatesthe historical background inthe reference to
46See the UnitedStates Nationalsin Morocco case,ICJ Reports, 1952, pp.183, 184, 196, 197,
198;South WestA3ica cases,ibid, 1966,p.24,para21 (emphasisadded).
46Costa Rica-Nicaragua,Treaty of Limits (Cafias-Jkrez),English translations. CRM, Vol. 11,
Annex7(d),pp. 62-65(emphasis added)."differencesabout boundaries", andthe need to proceed to the consolidationof
"peace,happilyre-established".
2.42. ArticlesI1andI11are devotedto theestablishmentof theboundaryline as
follows:
"11. The boundary line betweenthe two Republics, setting
out from theNorthern Ocean, shall commenceat the extremity
of Punta de Castilla, in the mouth of the River San Juan de
Nicaragua,and shallcontinue, always following the rightbanlc
of the said river,up to a point distant from CastillaViejo 3
English miles, measured fromthe outer fortificationsof the
said Castilla to the said point. Fromthence the line shall
continue in a curve, the centreof which shall be the said
fortifications, and from which it shall be distant 3 English
milesthroughoutits course, untilit arrivesat a pointtwo miles
distantfrom the riverbank abovethe Castillo. Fromthence it
shall continuein a direction towardsthe River Sapoa, which
falls intothe LakeofNicaragua, alwaystwomilesdistantfrom
theright of the SanJuan River,withits circumvolutions, upto
its origin at the Lake, and from the right banla of the lake
itself, until it arrives at the above-mentionedRiver Sapoa,
wherethis line, parallel to thesaidbanks,shallend. Fromthe
point where thisline meets the River Sapoa, and which must,
accordingto the aforesaid,be twomiles 'distant frornthe lake,
a straight line shallbe drawnto the centre of Salinas Bayon
the Pacific, where the boundary-line between the two
Contracting Republic ends.
111. This boundary line shall be measured entirely or in
part by Commissionersof the two Governments, ata time
which shall be furedby them. The said Commissionersshall
be at liberty to deviate from the curve round the Castilla, for
theparallel alongthe shoresof theriverandlake, and frornthe
straightline between Sapoaand Salinas,if they should agree
thereon,forthepurposeoffindingnatural landmarks." 46
46 Costa Rica-Nicaragua,Treaty of Limits (Cafias-Jkrez),English translations. CRM, Vol. 11,
Annex7(d).
392.43. Articles IV and V are concerned with the legal status of particular
locations. Followingthese four articlesinvolvinga territorial division,Article VI
formspart of theoverallsettlement of thedifferenceswhich resulted inthe war of
1857and providesas follows:
"VI. The Republic of Nicaragua shall have the exclusive
dominion and supremecontrolover thewatersof the River San
Juan from their issue out ofthe laketo their discharge into the
AtlanticOcean. But the Republicof CostaRica shallhave the
perpetual right of free navigation in these waters from the
mouth ofthe river up to 3 English miles belowCastilloViejo,
for commercialpurposes ["con objetosde comercio"],whether
withNicaragua or withthe interiorof Costa Rica by the Rivers
San Carlos or Sarapiqui,or any otherroute starting from any
point on the bank of the San Juan River belonging to that
Republic.
The boats of either countrymay touch at any part of the banks
of the river where the navigationis common, without paying
any dues except such as may be established by agreement
betweenthe two ~overnments."~~
2.44. The first element in this provisionconcerns"the exclusive dominion and
supreme control (exclusivamente el dominioy sumo imperio)"over the watersof
the River SanJuan. Thisis the primaryprinciple and the referenceto navigation
is logicallya secondary element.
2.45. Theprovisionsof ArticleVII emphasisethegeneralpurposeofthe Treaty,
as the creationof a "territorialdivisiony'.ThusArticleVIIprovidesthat:
"It is agreedthat the territorialdivision made bythis Treaty,is
in no wise to be understoodas contrary to the obligations
incurredeitherby political Treatiesor contractsof canalization
47Ibid. or transit entered intoby Nicaragua beforethe recognition of
the present Convention;it is understood rather thatCosta Rica
assumes those obligations, in the part which belongsto her
territory, without any prejudice to her sovereign rights and
dominionover thesame."48
(c) The GeneralCharacter ofthe Treatyof 1858asRevealedin the
Diplomatic CorrespondenceandNegotiationsSubsequentto the Treatyof
1858
2.46. In the Counter-MemorialNicaragua explainshowthe general characterof
the Treaty of 1858 as a treaty of peace and boundaries isreflected in the
diplomatic correspondence subsequentto the conclusionofthe ~reaty~'.
2.47. 'Whilethe Applicant State recognisesthe relevanceof subsequentpractice
inprinciple50,the materialsinvokedby Nicaraguaonthis subject are ignored.
2.48. Inthis context CostaRica remains silentin face of the correspondenceof
the years preceding the agreement to the arbitrationof President Clevelandin
1888. The relevantdataof the Counter-Memorialwhich are ignored intheReply
are as follows:
"2.1.38 Bythe year 1870 the Nicaraguan Government started
to raise the question of the validity of the 1858 Treaty, and
asserted that its provisions were incompatible with the
Constitution of Nicaragua. The relevant correspondence
includesthe following items:
48Ibid.
49SeeNCM,paras.2.1.36-2.1.39.
5SeeCRR,paras.2.55-56. i) Nicaragua to Costa Rica, 1 February 1871. In this Note
Nicaragua complains of the loss of Guanacaste as a
consequence ofthe Treaty of 1858.
ii) Costa Rica to Nicaragua, 22 July 1872. This substantial
document sets forth arguments relating to the boundaries of
Nicoya (Guanacaste),and the claimof CostaRica to title. And
it ispointed out that the Treaty of 1858confmed that Nicoya
was anintegralpartof CostaRica.
iii) Message of the State Department of Nicaragua to the
Senate of Nicaragua on8 January 1876,giving the history of
the boundary question with Costa Rica andthe invalidityof the
1858~reaty."~'
2.49. The correspondenceon this themepersisted until the two States agreedto
the arbitrationof President Clevelandin 1888. Two letters fiom the year 1888
are fairly typical of the milieu. The immediate subject of discussion was the
legalityof thepresenceonthe San Juanof a CostaRicansteamship.52
(4 TheObjectandPurpose asRevealed inthe ClevelandAward of22 March
1888 andtheReport to theArbitratorby George I;Rives, Assistant
Secretary of State, of2 March1888
2.50. TheRives Report providesa detailedaccount of thehistoricalbackground
of the Treaty of 1858, and an elaboration of the relevance of territorial claims.
Thesematerials are set forthin the counter-~ernoriat~ andwill not be reiterated
here.
51NCM,para.2.1.38.
52See Note of Nicaraguato CostaRica, dated 3 August 1886, andthe responseof Costa Rica,
dated31August 1886.
53SeeNCM, paras.2.1.22-2.1.24.2.51. In her Counter-Memorial Nicaragua hasinvoked the principle of inter-
temporal law in relation to the determinationof the object and purposeof the
Treaty of Limits at the time of its conclusion. In doing so Nicaragua has
presented amplelegalmaterialsin supportof thelawasunderstoodattherelevant
period54,including the Arbitral Award in the case of the Reserved Fisheries
betweenthe United Statesand Britainof 1858~~a nd theworks of Carlos Calvo
and AndresBello.
2.52. 'In the Reply the Applicant State does not rejectthe applicationof the
principle of inter-temporal law as such but introduces certain elementsof
1. FirstElementof Confusion
2.53. In the firstplace,MaxHuberis quotedto supportan alleged"secondrule
of the inter-temporallaw" to the effectthat the existenceof a right"shall follow
the conditions requiredby the evolutionof law." Thepassage fiom the Award
requires a fullerpresentation than appears in the Reply. In its full version the
passageintheIslandofPalmas casereads as follows:
"If the view most favourable to the American argumentsis
adopted - with every reservationas to the soundnessof such
view - that is to say, if we consider as positivelaw at the
period in question the rulethat discovery as such,i.e. the mere
factof seeing land, withoutanyact,even symbolical,oftalcing
5SeeNCM,paras.2.1.14-2.1.17.
5De laPradelle anPolitis,RecueildesArbitragesInternatiIIa,.440,atp.447.
5SeeCRR,paras.2.43-2.45.possession, involved @sojure territorial sovereignty and not
merely an 'inchoate title', a jus ad rem, to be completed
eventually byan actualanddurabletaking ofpossession within
a reasonabletime, the question ariseswhether sovereigntyyet
existed at the critical date,e. the moment ofconclusion and
cominginto forceof the TreatyofParis.
As regards the question which of different legal systems
prevailingat successive periods is to beapplied in a particular
case (the so-called inter-temporal law),a distinction must be
madebetweenthe creationofrights and theexistenceof rights.
The same principle which subjects the act creative a right to
the law in force at the time the right arises, demands thatthe
existence of the right, in other words its continued
manifestation, shall follow the conditions required by the
evolutionof law. Internationallaw in the 19thcentury, having
regard to the fact thatmost parts of the globe were under the
sovereignty of States members of the community of nations,
and thatterritorieswithouta masterhadbecome relativelyfew,
took account of a tendency already existing and especially
developedsincethe middle of the 18th century, andlaid down
the principle thatoccupation, toconstitutea claimto territorial
sovereignty,must be effective, that is,offer certain guarantees
to other States and their nationals. It seems therefore
incompatiblewith this rule of positivelaw that there shouldbe
regions which are neither under theeffective sovereigntyof a
State, nor without a master, but which are reserved for the
exclusive influence of one State,in virtue solely of a title of
acquisitionwhich is no longer recognisedby existinglaw, even
if such a title ever conferredterritorial sovereignty. For these
reasons, discoveryalone, without any subsequentact, cannotat
the present time sufficeto prove sovereigntyoverthe Island of
Palmas (or Miangas); and in so far as there is no sovereignty,
the question of an abandonment properly speaking of
sovereignty by one State in order that the sovereignty of
anothermaytake its place doesnot arise.
If on theotherhand the view is adoptedthat discovery does not
create a definitive title of sovereignty,but only an 'inchoate'
title, such a title exists, it is true, without external
manifestation. However, according to the view that has
prevailedat anyrate since the 19th century,an inchoate title of
discovery must be completedwithin areasonable periodby the
effective occupation of the region claimed to be discovered. This principle must be applied in the present case, for the
reasons givenabove in regard to the rulesdetermining which
of successivelegal systemsis tobe applied (the so-callednter-
temporallaw). Now, no act of occupation nor, except asto a
recent period, any exerciseof sovereignty atPalmasby Spain
has beenalleged. But even admitting that theSpanishtitle still
existedas inchoatein 1898 and must beconsideredas included
in the cession under Article I11of the Treaty of Paris, an
inchoate title could not prevail over the continuous and
peaceful displayof authorityby another State; for such display
may prevail even overa prior, def~tive title put forward by
another State. This point will be considered, when the
Netherlands argumenthas been examinedand the allegations
of either Party as to the display of their authority canbe
2.54. The question of law elaboratedby Huber is to be seen in its context.
There is no issue of a rule of inter-temporallaw, and certainly not of a rule
pertainingto the interpretationofbilateraltreaties.
2. Second Elementof Confirsion
2.55. The second elementof confusion is to use referenceto the 'notion of
inter-temporallaw'as an excuseto introducethe issueofthe relevanceofgeneral
internationallaw. The relevance of general internationallaw is a qualitatively
differentissue,and willbe examined in SectionI1below. In any eventit is clear
that there canbe no presumption that a principleof generalinternationallaw can
intrude in orderto modify theeffects of the negotiated provisionsof a bilateral
treaty. Theprovisionsof suchan instnmnentwould inevitably reflectthe precise
concernsof the partiesat the material time. It wouldbe wholly irregularto seek
57IslandofPalmasCase,UNRIAA, II,p.845-846.
45to use the notion of inter-temporal law todisturbthe stableregime embodiedin a
treaty establishingboundaries andsettlingterritorial claims.
3. ThirdElement of Confusion
2.56. The further element of confusion is the proposal that the subject of the
Treatyof 1858must involve "theevolutionof general internationallawregarding
the right of navigation of riparian states in international No
evidenceis offered toshowthat theprovisionsof the 1858Treatyare subjectto a
process of evolution. The governingprincipleis the intentionof theparties at the
time of the conclusionof the treaty. As the Court stated in theAdvisory Opinion
on theLegal Consequencesfor Statesof the ContinuedPresence of SouthABca
inNamibia:
"53. Mindful as it is of the primarynecessity of interpreting
aninstrumentin accordancewiththe intentionsofthe partiesat
the time of its conclusion, the Court is bound to take into
accountthe factthat the concepts embodiedin Article22 of the
Covenant - 'thestrenuousconditionsofthe modem world'and
'the well-beingand development'of the peoples concerned -
were not static, but were by deJinitionevolutionary, as also,
therefore, was the concept of the'sacredtrust: Theparties to
the Covenantmust consequentlybe deemed to have accepted
themassuch. That iswhy,viewingthe institutionsof 1919,the
Court must take into consideration the changes which have
occurredinthe superveninghalf-century,and its interpretation
cannot remain unafected by the subsequent development of
law, through the Charter ofthe United Nations andby way of
customary law. Moreover, an internationalinstrument has to
be interpretedand applied within thefi-ameworkof the entire
legal systemprevailingat the time of the interpretation. Inthe
domain to which the present proceedingsrelate, the last fifty
years, as indicated above, have brought important
58CRR,para.2.45. developments. These developments leavelittle doubt that the
ultimate objective of the sacred trust was the self-
determination and independenceof the peoples concerned. In
this domain, as elsewhere,the corpus iurisgentium has been
considerably enriched, and this the Court, if it is faithfully to
dischargeits functions,maynot ignore.
54. In the light of the foregoing, the Court is unable to
acceptany constructionwhich wouldattachto 'C'mandatesan
object and purpose different fi-om those of 'A' or 'By
mandates. Theonlydifferences were those appearingfi-omthe
languageof Article22 of the Covenant,and fi-omthe particular
mandate instruments, but the objective and safeguards
remained the same, with no exceptions such as considerations
,of geographical contiguity. Tohold otherwise would mean
'that territories under 'C' mandate belonged to the family of
mandates only in name, being in fact the objects of disguised
Icessions, as if the affiation that they could 'be best
administered under the laws of the Mandatory as integral
portions of its territory'. (Art.22, para. 6) conferred upon the
administering Power a special title not vested in States
entrustedwith 'A'or 'B'mandates. The Court would recallin
this respect what was statedin the 1962Judgmentin the South
TestAfrica cases as applyingto all categoriesof mandate:
'The rights of the Mandatory in relation to the
mandated territory and the inhabitantshave their foundation in
the obligations of the Mandatory and they are, so to speak,
mere tools given to enable it to fulfil its obligations.'I.C.J.
Reports 1962,p.329.)"59
2.57. This reasoning is directly related to developments concerning self-
determination and human rights affecting"the entire legal systemprevailing at
the time of the interpretation". Thereis no comparison here with theprinciples
relating to watercourses, and, even less, witha watercourse forming part of a
Treaty of Limits closely anchored in specificswhich are both regional and
historical.In the present case the''entirelegal system" consists essentiallyof the
59ICJ Reports,1971,pp.31-32,paras.53-54(emphasisadded).
47bilateral treaty,the character of its provisions, and especially the objective of
achievinga stableterritorial settlement.
1. The Thesesof CostaRica ConcerningTreatyInterpretation
2.58. It is obviousthat the San Juan River issubjectto a regime designatedby a
bilateral treaty. No rights are created for third states and the provisions of the
Treaty of Limits reflect its purpose in establishing boundaries as a basis for
peaceful relations. The object and purpose of the Treaty in relation to the
settlement of boundaries is unequivocally indicated by the preamble, by the
provisions, and by thehistoricalbackground.
2.59. Prior toan examinationof "theprinciples of interpretationyin her
CostaRica seeksto use a typology of watercoursesto createa set of suppositions
intended tostandin frontof, andto obscure, theprocess oftreaty interpretation6'.
2.60. The f~st of thesesuppositions isthat the San Juanis a "boundaryriver"62.
By this is meanta river inwhichtheboundaryis drawnon the shorelineof one of
the riparian States. As will be demonstrated below,there is no basis in general
internationallawfor givingthisfact any consequencesin favourofthe positionof
CostaRica on her navigationrights.
60CRR,paras.2.41-2.73.
Seeibid paras.2.02-2.40.
62Ibid .aas.2.19-2.33.2.61. The second suppositionin the Replyis to the effectthat the San Juanis an
"international boundary river"63. In the analysis offered by Costa Rica, the
advantage this supposition gives Costa Rica remains very obscure. The key
paragraphsare as follows:
"2.37 The characterisationof the San Juan as an international
boundary watercourse entails that the rules of general
international law apply to it unless they are pre-empted by
treaty rules or binding decisions (herethe Cleveland Award
and the Judgmentof the Central American Cowt ofJustice). It
also entails the applicability of the general rules on territorial
sovereignty pursuant to which the respondent State exercises
sovereigntyover the waters of the San Juan, always subjectto
its internationalobligations.'
2.38 The Treaty and the pertinent arbitral and judicial
rulings must be appreciated in the light of the rules of
interpretation laiddown by Articles 31 and 32 of the Vienna
Convention on the Law of Treaties of 23 May 1969. The
interpretation of the provisions of the 1858 Treaty must take
account of the rules of general international law relating to
watercourses and the circumstances surroundingthat Treaty,
including the fact that the boundary runs on the Costa Rican
bank. The rules of interpretation in questiondo not in all
aspects correspond to those invoked by Nicaragua in the
present controversy."64
2.62. As has been pointed out already, these passages exhibit considerable
confusion concerningthe applicablelaw. In particular,the relation of the treaty
provisions and general international lawis not clearly articulated.
63Ibid.,paras.2.34-2.39.
64CRR, paras.2.32-2.38.2.63. Invokingthe typology of watercoursesis unhelpful. The doctrineshowsa
reluctance to generalise from the Europeantreaty practice. Thus Dr. Whiteman
reportsthe opinionof Alvarezwith approval:
"At the Barcelona Conference, the Chilean publicist, Alejandro
Alvarez, in his report as chairman of the subcommittee on
navigable waterways,noted:
'The principle of freedom of navigation on rivers has
not evolved in the same manner in the American
Continent. Freedom of navigation on international
rivers has been admitted there, not as an extension of
the European principle, but as a concession accorded
voluntarilyby the riparian States through the medium
ofinterpartesagreementsor of legislativeacts ...'
League of Nations, BarcelonaConference, Verbatim
Records and Texts Relating to the Convention on the
Regime of Navigable Waterways of International
Concern (Geneva, 192 1)225-226." 65
2. TheResponseof CostaRica to theAnalysisPresented in theCounter-
Memorial
2.64. In the counter-A4emoriaP6Nicaragua presents an analysis of the legal
consequences flowing from the object and purpose of the Treaty. The Reply
containsno clearly integratedresponseto what is said in the Counter-Memorial,
and it is thereforenecessaryto seek outthe disassociatedcommentswhich have
been introduced in Chapters I1 and I11of the Reply. Nicaragua maintains that
65MarjorieM. Whiteman,DigestofInternationalLaw,Vo1.3,Departmentof StatePublic.7737,
released October 1964,p. 881; see also the work of Carlos Sosa Rodriguez, LesFleuves de
I'ArnkriquLatineetleDroit desGens,Paris, 1935,pp. 65-66 and89-119.
66SeeNCM, paras.2.1.46-2.1.66.these comments, both individually and as a composite, do not constitute an
effectiveresponseto the analysis contained intheCounter-Memorial.
2.65. The response of the Applicant State will now be analysed in relation to
eachrelevantparagraphof the Counter-Memorial.
2.66. In her Counter-Memorial Nicaragua explains thatthe position of Costa
Rica that her "vessels must be perrnitted to navigate the Rio San Juan 'sin
ninguna condicion' ("without any condition"), and that, in consequence,
Nicaragua may not exercise any rights of sovereignty andj~risdiction"~~is
untenable6'. Theresponseof the ApplicantStateto this reasoning,insofaras it is
visible, is exiguous and fissiparous. The relevant passagesof the Reply are in
paragraphs 2.57and2.58.
2.67. It is difficult to understand why the Applicant State considers these
observations inher Reply to be helpfulto her case. No admission has been made
by Nicaraguain her Counter-Memorial to back CostaRica'sposition. Moreover,
generally speaking, these paragraphsfiom the Reply are consonant with the
position ofNicaragua. Thus,a particularright of Costa Rica (fiee navigation) is
presented in the Treaty of Limits asa qualificationof the general grantof rights
(in the form of title to territory)to Nicaragua. The Treaty provisions sthat it
is Nicaragua'ssovereigntywhich is limitedby the particularright of Costa Rica
of free navigation. As theReply helpfullyaclcnowledgesin paragraph2.58: "the
rights and obligations of the parties in the present case are governed,ust and
foremost,by the 1858Treatyof Limits."
67NCM,para.2.1.47.
SeeNCM,paras.2.147- 2.SO.2.68. Nicaragua's Counter-Memorialrecalls:
"2.1.51There is a fhrtherimportantconsideration arisingfrom
the fact that ArticleVI does not provide for 'free navigation'
tout court, but only 'forthe purposes of commerce either with
Nicaragua or with the interior of Costa Rica, through the San
Carlos River,the Sarapiqui, or any other way,proceedingfrom
the bankof the San JuanRiver.. .'
2.1.52 Fromthis premise two conclusionsfollow. First, the
fact that the right of navigation is subjectto careful def~tion
and precise limitationconfms the view that the right is to be
exercised in a contextof Nicaraguansovereignty and general
jurisdiction. Secondly, Nicaragua must have the power to
regulate CostaRicantrafficfor the purposeof ensuringthatthe
conditions of the right of navigation laid down in the Treaty
arebeing observed."69
2.69. The response of Costa Rica in the Replyis two-fold. First, it is claimed
that such a regulatory power 'camountsto an effective denial of Costa Rica's
right" (of navigation). But this is clearly notthe case7'. Secondly,it is claimed
that such regulatory powersdo not stemfiom any of the applicable instrument^^^.
But it isimpossibleboth inlaw and inpracticeto have a right ofnavigationwhich
is not subject to regulation and policing. This form of practical necessity is
recognised by the standard authorities cited in the Counter-Memorial at
paragraphs 2.1.53 to 2.1.57, including the opinions of Wheaton and OYConnell.
In other words, the right of navigation must be compatible with the nature of
territorialsovereignty.
69bid.,2.1.51-2.1.52.
70CRR,pp.47-48,para. 3.14.
71Seeibid pa,a. 3.24.2.70. In response to thepropositionin the above indicated paragraphsof the
Counter-Memorial, CostaRicaobserves inherReply,
"3.25 Someof the writerscitedbyNicaraguain supportof its
views on the purported rightof regulation only address the
issue of regulatory rights in relation to innocent passage or
innocent use, situations which clearly fall outside a
conventionalrightoffiee navigationsuchas that inthepresent
case. But even in the case of an innocent use, the writers
generally agree thata State cannot establish regulations that
limitnavigation."
2.71. These observationslaclcanybasisin lawand nosourcesare cited. Indeed,
the passage fiom Wheaton (cited in paragraph 2.1.54of the Counter-Memorial)
expresslyrefers tothe "right ofinnocentpassage''being "necessarily modified by
the safetyand convenienceof the Stateaffectedby it ..." Moreover,thepassage
from 0'~onnell~~doesnot employthephrase"innocentuse".
2.72. In response to the quotation from Wheaton in paragraph2.1.54 ofthe
Counter-Memorial, Costa Rica commentsas follows:
"3.36 Nicaragua gives the impression that Costa Rica'sright
established in Article VI of the Treaty of Limits is an
'imperfectright'..
CostaRicaquotesWheaton'sElementsofInternationalLaw,publishedjust eight
yearsafterthe conclusionofthe 1858Treatyof Limits. Wheatonwrote that:
"The right of navigating, for commercialpurposes, a river
which flows through theterritories of different States, is
commonto all the nations inhabitingthe different partsof its
banks; butthis right of innocent passage beingwhat the text-
writers call an imperfect right, its exercise is necessarily
modifiedby the safetyand convenienceof the State affected
7SeeNCM,para.2.1.57. by it, and can only be effectually secured by mutual
convention regulating the mode of its exercise". (Emphasis
added.)
And CostaRicarecallsinparagraphs3.37ofherReply that Nicaraguacomments:
"It is not suggestedthat thisreasoning isdirectly applicableto
the present case, especiallyinview of the fact that the right of
navigation presently in issue arises from a bilateral Treaty.
However, the significant point is presented in the final
sentence of the passage which clearly assumes that, when it
exists,a rightof navigationfor commercialpurposes issubject
to certain conditionsas tothe modeof its exercise."Emphasis
added.)
Nicaragua's embarrassment about this quotation is
understandable. Wheatonmentioned theneed of a convention
to secure the mode of exercise in regards to such 'right of
navigation for the commercial purposes',which is precisely
the case ofthe San JuanRiver."
2.73. There is no embarrassment in Nicaragua's Counter-Memorial on the
relevance of this quote. Moreover, the Reply is here accepting that a mutual
convention,as requiredby Wheaton,wouldstill govern"the mode of exercise" of
the rightof navigation.
2.74. The sources when consideredas an ensemblejustify the conclusionthat
the right of regulation in legal terms derivesboth from the provisions of the
Treaty of 1858 and from the inherent and logical rights emanating from
sovereignty.In her Counter-MemorialNicaragua points out in paragraph 2.158
that at least three types of regulation by the Nicaraguan authorities would be
compatible withthe principle of free navigation, including the rightto monitor
the type of vessels exercising the right of navigation and those measures
involving questionsof security and safety. In Chapter IV of this Rejoinder,
Nicaragua further demonstrates that the regulatory measures are necessary todefend her sovereign interests in crime prevention, navigationalsafety, border
securityand,above all, environmentalprotection.
2.75. The response of Costa Rica in her Reply amounts to little more than a
formal denial: and it is a denial which involves the rejectionof any regulatory
power whatsoever inhering inthe territorialsovereign.
2.76. AsNicaragua explained in herCounter-Memorial:
"2.1.63 There are certain materialswhich, whilst not directly
relevant,provide supportby wayof analogy fortheproposition
that a right, fieedom, or liberty, may be subject to a certain
degree of regulation by the sovereign of the territorywithin
vvhichthe right,fieedom,or libertyisto beexercised. Thus,in
the North Atlantic Coast Fisheries arbitration (1910), the
United States claimedthat Great Britain had no right to make
regulations fora fishery inwhich American citizenshad been
granted 'a libertyto talcefish of every kind' by a Convention
of 1818. The Tribunal (createdby a Special Agreementof
1909) decided that itwas lawful for Great Britain to malce
regulations if they were bonaJide and not in violation of the
Treaty and also if they were: '(1) appropriate or necessaryfor
the protectionor preservationof suchfisheries,or (2)desirable
or necessary on grounds of public order or morals without
unnecessarily interfering withthe fishery itself; and in both
cases equitable and fair as between local and American
fishermen ...7773
2.77. Theresponseof Costa Ricain theReply is as follows:
"3.17 Nicaragua also referredto the Award ofthe Tribunalof
Arbitrationin the Question relatingto theNorthAtlantic Coast
Fisheriesof 7 September1910. However,its referenceto this
Award is not clear. Again it is worth quotingthe relevant
paragraphof this arbitralawardin its entirety:
73Parry(ed.),British Digestoflntemational Law,Vol.,2b, 1967,p.585atp.594. 'The exerciseof that rightby Great Britain is,however,
limitedby the said Treaty inrespect ofthe said liberties
therein grantedto the inhabitantsof the United Statesin
that such regulationsmust be made bona fide and must
not be inviolationof the saidTreaty.. ."
2.78. In relation to the first paragraph from the Reply it is simply mistaken to
suggest that the award is in some way misrepresented. The right to make
regulations"mustnot beinviolationof thesaidTreaty", as the Award states. But
this propositiondoes not defeat the right of Great Britain to make regulations as
long asthey "arenot inconsistentwith the obligationto executethe treaty in good
faith, and are therefore reasonableand not inviolation of the treaty." (emphasis
added)
2.79. Thus, in this passage, which is adopted by Costa Rica, the Tribunal is
expressly accepting that regulations necessary ongrounds of public order and
moralsare not inviolation of the treatyinquestion.
2.80. In paragraph 3.18 of her Reply, Costa Rica urges upon the Court a
distinction between a resource subject to exhaustion, such as fisheries, and
navigation "which is not destructiveof anynatural resource". It is then asserted
that free navigation does notneed any regulation. This distinction lacks validity
both in law and in the sphere of policy. In the first place, navigation is a
notorious source of pollution and public order involves both environmental
protection and safety of navigation, includingavoidance of collisions and other
disasters. In any event the concept offree navigation must include thenecessary
regulationto ensure that navigationis available in conditionsof safety, freedom
from criminalactivity,and freedomfrom environmentalhazards.2.81. In paragraph 2.1.64 of the Counter-Memorial,Nicaraguabrought to the
fore the implicationof the decisionof the Court in the Rightof Passage Case
(Portugalv In that case, bothPortugalandthe Court recognisedthat the
passage was subject to the regulation andcontrol of India. In the Reply no
attemptis made eitherto discuss, orto deny, the relevanceof this decisionof the
Court. It is particularlystrikingthat CostaRica fails to challengethe analogy
madeby Nicaragua with therightofpassage.
2.82. The evidence available leads to the inevitable conclusionthat theprimary
object and purposeof the 1858Treatywas the definitive settlementof the long-
standingterritorialdispute concerningthe districtof Nicoya andthe overalllimits
of CostaRica andNicaragua. The evidenceof the specificobjectandpurpose is
asfollows:
(i) The historical context, includingseveral bilateral
treatieswhich formpartof thehistorical context75.
Thenatureof thetitle, and thetextof the preamble.
(ii)
(iii) The provisionsof the Treaty, includingthe sequenceof
theprovisionsandtherankingofArticle V?.
(iv) The diplomatic correspondence subsequentto the
conclusionof the ~reaty~~.
74SeeICYReports,1960,p.6.
75See alsoNCM, paras.2.1.36-2.1.39. (v) Thetext of theClevelandAward of 22March 1888and
the Report to the Arbitrator by George L. Rives, Assistant
Secretaryof State,of2 March 1888~~.
2.83. Thetreatment of these sources in the Reply is incomplete and extremely
shallow. Moreover,there are certainadmissionsin the text of the Reply,which
havebeen examined above.
2.84. Given that the Treaty of 1858 recognises the territorial sovereignty of
Nicaragua overthe river as awhole, it must follow that the rightof navigation is
necessarily to be reconciled with the existence ofNicaraguan title. Moreover,
accordingto the general principles of international law, Nicaraguahas both the
right and the duty, as territorial sovereign,to make provision for the safety of
navigationand the maintenance of publicorder.
2.85. The ordinal significance of theinteractionof territorial sovereignty and a
regime of navigation is well-recognisedin the doctrine. The authorities referto
the regulatory power ofthe riparian Stateinsuchcircumstances7*.
2.86. Theposition of contemporaryauthorities,such as Wheaton,was reflected
in the opinions of Governments. This is evidencedby the advice offered to the
British Secretary ofState,the EarlofAberdeen,in 1844by SirJohn~odson~'.
76Seealso NCM, paras.2.1.22-2.1.24.
77SeeNR, Chap.11,Sec.111.
78SeeNR, para.2.69.
79SeeInternationalLawOpinions,Vol.1, 1956,p.308.2.87. In addition to these evidences, when essentially similarlegal questions
were examinedby internationaltribunalstheir decisionsexplicitlyrecognisedthat
a Statemay exerciseapolicepowerin respectof vesselsexercisingatreaty-based
right of fkee navigation in rivers forming part of its territory.In face of the
Awards in the North Atlantic Coast Fisheries case and McMahan (U.S.A.) v
United Mexican States (1929), the Applicant State makes no attempt to deny
eithertheir authorityorrelevance8'.
2.88. In her Reply Costa Rica is remarkably reluctantto recognise the force of
the evidence, either in its separate manifestations, or as a whole. A carefbl
examinationof the individual sourcesis avoided. "Writers" are invokedbut not
quoted. In this settingit has been necessaryto reaEi the pertinent elementsof
the interpretationof the Treaty of Limits and to place its provisionswithin the
appropriatelegalperspective.
2.89. Therefore,whateverthe nature and extentof CostaRica'snavigationright
(whichwill be addressed in Chapters I11throughV of this Rejoinder),within the
provisions of the Treaty of Limits and the Cleveland Award, Nicaraguamust
havethe exclusive competenceto exercisethe followingregulatory powers:
(a) The protection and maintenanceof the right of navigation,that is
to say, the power to maintain public order and standardsof safety
in respectofnavigation;
(b) The protection of the border, including resortto immigration
procedures in respect to foreign nationals navigating in
Nicaragua's territorial waters;
See CRR,paras.3.17-3.18,3.32. The exerciseofnormalpolicepowers;
(c)
Theprotectionof the environmentandnatural resources; and
(d)
(e) The maintenance of the Treaty provisions prescribing the
conditions of navigation in accordance with the Treaty, thatis to
say, the maintenance of the discipline of the Treaty as such,
togetherwiththe termsofthe ClevelandAward.
Section TI. TheRoleof General InternationalLaw and OtherParticularRules
2.90. CostaRica devotesan entire chapter (Chapter11)of herReplyto "General
InternationalLawRelevantto the ~is~ute"~'.The topic doesnot deservesomuch
emphasis: while it is certainly true that, in some limited respect, "the rules of
general international law apply ...98, it remains that the case is primarily
governedby the Treatyof 1858. Costa Rica's ChapterI1is clutteredwith rather
general and academic developments on the law of internationalrivers83which are
of limitedrelevanceforthepresent purpose.
2.91. As has been shown in Section I above, the 1858 Treaty recognises the
territorial sovereignty of Nicaragua overthe bed and the waters ofthe San Juan
River. It does so in the first sentence of Article VI. The second sentence,
introduced by the word "but" ("peron), constitutes an exception to the usual
consequencesof the "exclusive dominionand supremecontrolover the waters of
CRR,paras.2.01-2.74.
82CRR,para.2.40.
83See e.g., the lengthy presentationof the practiceof establishing boundarieson riverbanks at
paras. 2.21-2.25.the San Juan Rive..."("exlusivamenteel dominyosumo imperio sobre las
aguas delrio de San Juan"). This exceptionis constitutedby the "right of fiee
navigation" ("10sderechosperpetuos de libre navigacidn") on the river with the
importantstipulationsthat this right islimitedto navigation:
(i) "with articlesoftrade" ("conobjetosde comercio") and
(ii) that this commercebe "withNicaragua or withthe interior
of CostaRica" ("conNicaragua ointerior de CostaRica").
2.92. Nicaragua will comeback to these limitationsin Chapterw.Inthe
present Section, she is only concerned with the respective roles of the
Treaty (and ofsome othermore minorinstruments)andgeneralinternationallaw,
and with the relationsbetween the formerand the latter for the settlementof the
presentdispute.Andtheprinciples arestraightforward:
(i.) the Treatyprevails;
however,if it is incomplete orif itsmeaningis obscure,
(ii.) there canberecourseto other rulesof internationallaw.
A. THETREATY PREVAILT SHECONTINGENT ANDSECONDAR RELEVANCE
OFGENERAIL NTERNATION AALW
2.93. Whatever their content may be, the rules of general international law
whichmightbe applicableto a similar casearenot peremptory: they wouldapply
insofar asthe Statesin question have not accepted spec-awhich can be
derogatory to said general rules. For this reason, the legalqualification of the
situationis of ratherlittleimportance.
2.94. Costa Rica pays great attentionto the issue of the def~tion of an
international river. According to her, the San Juan River would be aninternational river for three cumulative reasons: "(i) the presence of different
riparians ; (ii)the factthat the watercourse,if navigable,offers accessto and from
the sea to more than one State ; and (iii) the existenceof a treaty regime"84.It
might well be so - but it does not really matter since,whatever the general rules
applicable tointernationalwatercourses, the 1858Treaty must prevail, as Costa
Rica acknowledgesfrom time to timeg5.But, in doing so, she doesno more than
pay lip serviceto the principleof lexspecialis.
2.95. Thus, Costa Rica writes, "[rlegarding navigation ... any recourse to
customary lawis contingenton the lexspecialis resulting fiom the 1858 Treaty,
as interpreted by the 1888 Cleveland Award and the 1916 Judgment of the
CentralAmerican Court of~ustice"'~N . icaragua denies the relevanceof the 1916
Judgment in the present caseg7,but leaving this aside for the moment, it is
revealingthat,while she seems to accept theprincipleof specialia [herethe rules
in the 1858 Treaty]generalibus [here general international law rules] derogant,
Costa Rica goesto great lengthsto base her right of navigation on the San Juan
River ongeneralinternationallaw.
2.96. In this respect, she attaches great importanceto an allegedly "truncated
version" of a quote from a writer (Professor LuciusCaflisch) commentingupon
the Faber case decided in 1903 by the German-Venezuelan Claims
~ornmission~~T . he alleged "truncating" isa venial sin: it has no bearing on the
meaningof the sentence (andit is the reasonwhyNicaragua indulged herselfnot
84CRR,p. 28,para. 2.35.
85 Seee.g.CRR,para.2.08orpara.2.58.
86 CRR,p. 19,para.2.15.
87See NR, paras. 2.124-2.128.
See CRR,paras.2.16-2.17.to reproducethe phrasein questionwhichattributesto the Umpirean alternative
position, where the only purpose of the quote was to contrast two positions;
moreover the learned author interprets'Yreely"what the Umpire effectively
saidg9).Now, leaving aside these pettifogging quibb,oth the decisionin the
Faber case and Professor Caflisch's comment are of interest regarding Costa
Rica'sallegedrightsof navigationundergeneralinternationallaw.
2.97. As was usual at the time, the Award includes the opinionsof the
Commissioners.In the instant case, oneoftheCommissioners(Goetsch) wrote:
"In the first place it is undeniable thata sovereign state
holds absolute authority overits rivers and water courses
untilthese touchthefjrontiersof other states. Thisprinciple
is nevertheless limitedin two sensesby internationallaw.
'Whena river constitutesthe only way of communication,
indispensablefor the subsistenceof another nation, orpart
ofit, itsuse cannotbe entirelyprohibited."90
For his part, Commissioner Zuloaga considered th,[tlransitorycommercecan
thereforebe prohibitedby Venezuela atany time, as sheis not obligedby any
treatyto permitit...)Venezuela,as a sovereignnation,regulatesthiscommerce
in transit in its territory as it sees fit'"', and that "[tlhe theory thatnavigable
internationalrivers arefreeto navigationhas not been admittedas a generalrule
of the law ofnations.No nationup to now has recognizedthis absoluteprinciple
orthis obligation asa perfectone,andin the caseswhereit hasbeen agreedto by
nationsit has alwaysbeenby virtueof specialtreaties.mpire DuEeld clearly
concurred with this last opinion:"To sustain a claim for injuries to C6cuta
8SeetheAwardof1903,Fabc ersR,IRAvolX.,p462- fi97.
Ibidp.444.
Ibidp.447.
9Ibidp.449.merchants with the reasons adduced,to the effect that the river Zulia must be
opened to internationalcommerce, is tosurreptitiously introduce questions asto
the sovereigntyof venezuelang3;then, quoting Woolsey, who terms the alleged
right of navigation on international rivers "only a moral or imperfect right to
navigation", the Umpire adds:"However, it is no longer to be doubted that the
reason of the thing and the opinionof otherjurists [whoseopinion is analyzed at
length in the Award], spoken generally, seem to agree in holding that the right
can only be what is called (however improperly)by Vattel and other writers
imperfect, andthat the state through whose domainthe passage is to be made
'must be the solejudge as to whether it is innocent or injurious in its character'
(Phillimore,CLVII,citingPuffendorf,Wheaton'sElementsof InternationalLaw,
Hesty'sLaw ofNations,Wolff s Institutes,~attel)"'~.
2.98. It is therefore not really true that "la sentence arbitrale dans I'affaire
Faber met en relief l'oppositionentre la doctrine dela libre navigation, crdation
de 1'Europedu me si6cle,et la conception latinoamdricaine,qui fait ddpendre
la navigationde la volontdde 1'~tatriverainou des tatrive rain^ .o^rindeed
is it entirelytrue that,"[clette conception sembledu reste l'emporter sur la th6se
subsidiairequifut ddveloppdepar le surarbitreDuffield et qui consistaiA liniter
la libre navigationaux trajets sanstransbordementvers la mer ou en provenance
de ~elle-ci"~~I.n reality,the positionof the Umpire isclearlyin favour of the first
of those two theses; and the alleged "subsidiarythesis" is not at all presented as
94Ibid.,p.466(italicsinthe text).
95L. Caflisc((Rbgles ghnhralesdu droit des cows d'eau intematD,Recueil des cours,
1989,Vol.1119,p. 125.
96Ibid.an alternative to the former one but as concerning the differentquestion "of
regulatingcommerce,rather thanrestrictinginternalnavigation'"7.
2.99. What, on the other hand,is clearly true, is the conclusionarrived at by
Professor Caflisch: "La doctrine, quant 2 elle, semble 2peu prks unanime :en
AmCrique latine, il n'existe pas de libertC de navigation en l'absence de
concession unilatkraleou de dispositioncon~entionnelle"~~ T.his isconfmed by
the careful examinationof the authoritiesby Umpire ~uffield" - who doesnot
limit his conclusionto Latin America but shows that "[[flromthis review of the
authorities it seems thateven in respectof rivers capable of navigationby sea-
going vessels carrying oceanic commerce [wherever situated] the weigho tf
authoritysustainstherightofVenezuelato makethedecrees complainedof 'loo.
2.100. In other words, generalinternationallaw, as presentedby more or less
contemporaneous authorities, does not help Costa Rica n,ot only is it supplanted
by the 1858 Treaty which introducesa qualified right of "fiee navigation" in
favour of CostaRica,butalso,if itwereto apply,it wouldnotrecognizeanyright
of navigation in her favour:the principle wouldbe (and only be) that of the
absolute authorityof the sovereignState(here Nicaragua) overthe waters of her
river (herethe SanJuan).
2.101. At thisstage, CostaRica'sfallbackposition isto claimthat thelimitfixed
by the 1858 Treaty, beingalimitonthe shore,is a "bad"boundary:
9Awardof 1903,Fabercase,&YAY volX,p. 462.
9L. Caflisch,op.cifn9.5,p. 125.
99SeeAward of 1903,FabercaseIURcl v,l.X,pp.463-466.
loIbid.,p. 466. - "The great injustice ofthis type of boundary (. .) is that one
of the border Statesis excluded fromthe use and exploitation
ofthe ri~er"'~';
- "The effect of placing an internationalboundary on the shore
of a navigable rivermaybe particularlydramatic.. ,,102,
- "Limits on the shore cannot beconsidered 'good' boundaries
because they tend to generate conflict rather thanto promote
peaceful
2.102. These are extraordinaryallegationsbefore a Court, "whose function is to
decidein accordancewith international law". Tworemarksare in order.
2.103. First, these limitations "imposed"on CostaRica on the use of the riverby
the lawfully concluded Treaty of Limitsof 1858were agreedin exchange of the
concession of enormous compensations -- of which the granting of qualified
rights of free navigation was not the main part. In reality, in exchange for this
supposedly unfavourable limit, Costa Rica gainedsovereignty over the districtof
Nicoya --an advantage whichwas the main quidpro quo, compensating with
largessethe placingof the borderat the banklo4.There is nothing "inequitable"in
this agreement,which can be seenaslargelyin favourof CostaRica.
2.104. Second, and more importantly froma legalpoint of view, Costa Ricadoes
not contend thatthe 1858Treaty is unlawful orinvalid for any reason. It must
then be appliedas it stands, withall its consequences.In particular, Costa Rica
must acceptthat:
lo'CRR,p. 26, para.2.28, quotingL.J.Bouchez,"The FixingofBoundariesin InternationalRiver
BoundaryRivers", 12International and ComparativLaw Quarterly 1963,p. 792.
'02Ibid, para. 2.30.
lo3Ibid, para. 2.31.
lo4SeeNCM,paras. 1.2.2-1.2.4 andparas. 1.2.13-1.2.23;see NR,oparas. 2.13-2.19. - "[tlherelevant linebetween the two Republics (...)shallrunalongthe
rightbank" of theSanJuandeNicaraguariver (Article 11);
-TheRepublicofNicaraguahas "exclusivelythedominionandsupreme
control(sumoimperio)overthewatersof theSanJuanriverfromits origininthe
Laketo itsmouthintheAtlantic"(ArticleVI), withthe exceptionthat ('but"):
-theRepublicofCostaRica hasthe "right offreenavigation (..),said
navigationbeing 'con objetos decomercio'either with Nicaragua or with the
interior of CostaRica.. ."(ArticleVI).
2.105. Therefore,Costa Ricamust acceptthat sheonly enjoysthis last freedom,
which clearly is anexceptionto the otherwise generally applicable rules when a
river border isplaced at the bank.As explainedby Bouchez, withthe apparent
approval of CostaRica, in the absence of any contraryexpress provision in a
treaty,the Statewhich does not possessthe waters"is excluded fromthe use and
exploitationofthe river"lo5.
2.106. As shown abovelo6,the real issue is not to interpret restrictively the
freedom ofnavigation concededto CostaRicaby the 1858Treaty,but simplyto
interprettheTreatyin conformitywith theusualcanonsoftreatyinterpretationas
set forth in Articles 31 and 32 of the 1969 Vienna Conventionon the Law of
Treaties. Once this interpretation hasbeen madelo7,general international law
applies and, whetheron the basisof a non-existent rightof navigationor on that
of the speciallaw applicablewhena borderis fmed on thebank of a river, Costa
Rica has no right on the San Juan outsidethe right of qualified freedomof
'0SeeNR, para. 2.101.
loSee NR,para. 2.55.
'0See NR, ChapterIII.navigation that she holdsunder the Treaty. Consequently,whether the river is
"international" --as CostaRica insistentlyallegeslo8 -- or not, or whether the San
Juan is "a boundaryriver" --as she strongly emphasisestoo10g --or not, does not
matter; what does matter for the settlement of the present dispute is that the
border follows the right(CostaRican)bank andthat the bed and the waters of the
river areunderthe sovereigntyofNicaragua.
1. Relevant CustomaryRules
2.107. As already indicated1'', Nicaragua fully accepts that "customary
internationallaw is (..) relevantto adjudicationof the present dispute and to the
interpretationof the relevant treatyprovisions", with the importantqualification
that "any recourse to customary law is contingent on the lex specialis resulting
fromthe 1858Treaty..."'ll. In otherwords, thatthe Treaty, exactly as any treaty,
does not apply in isolation.It is groundedin generalinternationallaw which can
clarify its terms if they are obscure or disputed, or complement them whenthey
are silent.In other words, when properly interpreted in conformity with the usual
rules of interpretation in international law, it can only be completed, but not
contradicted,by customaryinternational law.
'08Cf.CRR,paras.2.02-2.40, andespeciallyparas. 2.34-2.36.
logCf CRR,paras.2.19-2.33.
"O SeeNR, paras.2.17and 2.56.
"' CRR,para. 2.15.2.108. Concerning the first of these functions of general internationallaw, as
recalled above112,both parties agree that the "general rule of interpretation"
together with the "supplementary means ofinterpretation" as describedin
Articles 31 and 32 ofthe 1969Vienna Conventionon the Lawof Treaties apply
forthepurposeoftheinterpretationofthe 1858Treaty,andinparticularto clarify
the meaning of the expression"fi-eedomof navigation witharticles of trade"
(librenavigacidn ..conobjetosde comercio). Thereis no needto reconsider the
issue of whetherthe generalruleandthe supplementaryrulesof interpretationare
applicable. Bothparties applythemto supporttheirinterpretationsof the phrase
"con objetos de comercio". Nicaragua fiu-ther addresses the issue of
interpretationof,thisphrase in Chapter111 of thisRejoinder.
2.109. It should notbe necessaryto emphasize again that besidesthis qualified
fi-eedomof navigation,the general applicable principles are a duty of abstention
(or, to put it otherwise,no right on the river) forCostaRica contrastedwith an
otherwiseunlimitedterritorial sovereigntyofNicaraguaonthe watersof theriver.
As Costa Rica recognises:'Woone disputes [Nicaragua's]sovereigntyover the
watersof theSanJuan river"ll3.
2.110. This being said, whilea State cannot abandon its sovereignty, unless it
accepts to disappear asa State, nothingimpedes a sovereign State from freely
limitingits sovereignrights over itsterritory(asNicaraguadid bygrantinga right
of navigation,with limitations,to Costa Rica in ArticleVI of the 1858Treaty).
But here arises the principle accordingto which, whena State has agreed to
submitto a limitationonthe exerciseofits sovereignrights overits ownterritory,
"2See NR, paras.2.25-2.35.
H3CRR,para. 2.61.as is the case here, "[tlhis fact constitutes a suecient reason for the restrictive
interpretationin caseof doubt,of theclausewhichproducessucha limitation"'14.
2.111. It is of course not an answer tostate, as Costa Rica does, that this
argument "has no value, because the wording of Article VI of the Treaty of
Limits is clearwii5.Indeed the expression"con objetos de comercio" is clear, but
it is contested by theApplicant - as more than amply shown by the lengthy
arguments exchangedon this crucial point by the parties before and during the
present proceedings;andthe real scopeofthe expression"fkeenavigation"("libre
navegacicin")itselfis disputed. Hence theneedto haverecourseto interpretation.
2.112. As Nicaragua explained in her Counter-Memorial,'"m]utatis mutandis,
this situation maybe compared withthat of a right of passage of States on the
territory,or withinthe territorialsea,or in an internationalcanal in the territoryof
another state"ll6. This has not been challenged byCosta Rica, which has not
criticized the analysis made by Nicaragua of the Judgment in the Right of
Passage case'17,which shows that such a right is not unqualified under
international law and is, in particular, subordinated tothe "power of regulation
and control"ofthe territorial~tate"~.
"4 PCIJ, Judgmentof 17 August 1923, Vimbledon, SerieA, no 1, p. 24; See also the PCIJ
Advisory Opinion of21 November 1925in the case concerning theInterpretationof Article 3,
Paragraph2, of the Treaty ofLausanne,SerieByno 12,p. 25, invokedby CostaRica herself
(CRR,para.2.62).
CRR,para.2.63.
NCM,para.3.3.8.
SeeNCM, paras.2.1.64and3.3.8.
Judgmentof 12April 1960,ICJReports 1960,p. 45.2.113. It is the very purposeof the conceptof territorialsovereigntyto establish
that the territorial Stateexclusively and fully possessesandexercisesall the rights
that it has not freely limitedin favourof anotherState.This has been veryclearly
statedby Max Huber in his celebrated dictum, in the IslandofPalmas arbitration,
'"slovereignty in the relations between States signifies independence.
Independenceinregardto a portionof the globeis theright to exercise therein,to
the exclusionof any other State, thefwctions of a State.The developmentof the
national organisationof States duringthe last few centuries and, asa corollary,
the development of international law, have established thisprinciple of the
exclusive competenceof the State in regard to its own territ~ry""~.And as the
Arbitral Tribunal aptly consideredin the Lake Lanoux case, "La souverainetk
territorialejouetila manihred'uneprksomption.Elledoitflkchirdevant toutesles
obligations internationales, quellequ'en soit la source, mais elle ne flkchitque
devant elle~"'~~A. s a consequence,in the present case, unless Costa Rica can
positively show that other rules do apply,there is no room for any further
limitation on Nicaragua's sovereignty thanthat resulting from Article VI of the
Treaty,when thisprovision is properly interpreted.
2. The "Instruments" Invoked by CostaRica
2.114. Costa Rica puts forward a single rule of customary origin and a small
handfbl of written instruments which would allegedlymalcethe "presumption"
linked to the territorial sovereigntyof Nicaragua bend beforethem. As for the
"9ArbitralAward,4April 1928lUAA ,ol.11p. 838.
12ArbitralAward, 16November 1957,Ha, vol. XI, p. 301 ("Territorial soveplaysthe
partof a presumption.It must bend beforeall internationalobligations, whatever theirorigin,but
onlybefore suchobligations."MIL 1956,at1591).allegedcustomaryrule (introducedas "relatedrights" - in the plural121)i,t relates
to fisheries and will be dealt with below, in Chapter IV. Leaving aside the
ClevelandAward of 1888 and the Alexander Awards, whichare relevant for the
interpretation of the 1858Treaty, Costa Rica mentions three other instruments,
which, from her pointof view, wouldbe relevantfor the settlementof the present
dispute:
-the Fournier-SevillaAgreement of9 January 1956;
-the Cuadra-Castro JointCommuniqutof 8 September 1995;and
-the Cuadra-LizanoJointCommuniqutof 30 July 1998'~~.
The 1916 Judgmentof the Central AmericanCourt of Justice is also invokedby
CostaRica butit isby no meansrelevant for the present case, aswillbe explained
below.
(a) The1956Fournier-SevillaAgreement
2.115. Leaving aside the unwelcome andsuperfluousremark made at the end of
paragraph 2.11of the CostaRicanReply, the1956Fournier-Sevilla~~reernent'~~
adds nothingto the 1858 Treatyas interpreted bythe ClevelandAward, contrary
to CostaRicaYsallegations12'T . o demonstrate this,it will sufficeto quotethe text
of two provisions of this Agreement invokedby the Applicant in supportof her
allegation.
lZ1SeeCRR,para. 2.15.
122SeeCRR,paras. 2.11-2.14.
lZ3See CostaRica-NicaraguaAgreement pursuantto ArticleIV of the Pact of Amity,9 January
1956. CRM,Vol.11,Annex 24.
'24SeeCRR,para. 2.11.2.116. ArticleIprovides:
"The two Parties, actingin the spirit which should move
the members ofthe Central American familyof nations,
shallcollaborateto the bestof their ability in orderto carry
out those undertakings and activities which require a
common effort by both States and areof mutual benefit
and, in particular,in order to facilitateand expeditetraffic
on the PanAmerican Highway andon the San Juan River
within the termsof the Treaty of 15 April 1858 and its
interpretation givenby arbitrationon 22March 1888, and
also to facilitate those transportservices which may be
providedto the territoryof one Partyby enterprises which
arenationalsofthe other."125
Thisprovisionexpresslyinvokes"thetermsoftheTreatyof 15April 1858andits
interpretationgivenby arbitrationon 22 March 1888"andit clearly addsnothing
to thoseterms.
2.1 17. For itspart, ArticlI1provides:
"The twoParties shall, inso far as possibleand with the
utmost diligence, arrangefor the supervision of their
commonborder asa means ofpreventingthe illegal entry
ofeitherweaponsor armed groups&omthe territoryof one
of the Parties intothe territoryof the other. Theauthorities
of the two Governments, and, in particular, the border
authorities, shall exchange, as fully as possible, any
informationwhich may come to their attentionand which
mighthelpto avoidsuchincidents."
Accordingto Costa Rica - which,carefully,does not quotethis provision:"This
could onlybe done,on the part of Costa Rica,by allowingits policeto navigate
on the River with normalarms and on the basis of an abilityto re-supplyCosta
lZIt mightbe notedthatthis Agreementdated 1956 only took into consithe 1858Treaty
and the ClevelandAward of1888attributesno relevance toof the then morerecent decisionof
the CentralAmerican Couin1916.SeeNR,para. 2.125.Rica'sborder posts"126N . othing in the text or the spirit of Article I1implies such
a conclusion. The only precise means of cooperationwhich is provided for is
mutual information. Moreover, even accepting Costa Rica's audacious
interpretation accordingto which this provision amounts to an agreement "to
cooperate to safeguard their common borderyy12t7 h,is certainly does not imply
armed navigation or re-supplying border poststhrough the river on the part of
Costa Rica; this canperfectly (andmust) be done on and&omthe land itself. In
any case, this is clearly a typical case where the presumption in favour of
territorialsovereignty mustfully apply.
(b) The1995Cuadra-Castro Joint Communiquk
2.118. Thesecond "relevanttextyy --to be noted:"text," not a treat- invokedby
Costa Rica is the 1995 Cuadra-Castro Joint~ommwli~uk~~~ A.ccording to the
description given by Costa Rica, this instrument "refers to far-reaching
cooperationfor thejoint orparallel surveillanceofthe commonborder. That such
cooperation would not be possible without the assistanceof Costa Rican public
vessels is evidentyy129I.n reality, as Nicaragua has indicated in her Counter-
Memorial, this communiquk is nothing more than "a comrnitrnent to
cooperate ~~1.0.
lZ6cRR, para.2.11.
127Ibid.
lZ8Cuadra-CastroJointCornmuniqud,8 September 1995.CRM,Vol.11,Annex27.
12'CRR,para.2.12(footnoteomitted).
130NCM ,ara.3.2.9. - point one calls for"coordination"andparallelpatrolling atthe borderof
bothcountries;
- point two envisages that"the chiefs of theborder units will coordinate
and cooperate morecloselyin planningand carrying out jointparallel patrolling
along our countries'commonborder, exchanging operativeinformation of the
commonentitiesinvolved";
- accordingto point three,"[bloth institutionswill coordinatethe training
of guidesandcaninetechniqueineachcountry'snationalcentres.. .";and
- pointfour provides for various meetings.
2.119. Even acceptingthatthe signatoriescouldcommittheirrespective Statesin
matters relating to theboundaryregime (whichin the Nicaraguancase was not
legally possible), it is indeed impossibleto interpret those fourpoints as an
agreement givenby Nicaraguato CostaRica for a unilateralright to navigate on
the SanJuanwith public vessels, thus clearly derogating fitomthe 1858Treatyas
interpretedby the 1888 Award, andlimitingagainNicaragua's sovereignty over
the river.Nowhere in thecommuniqukis Costa RicanCivilGuardnavigation on
the river mentioned, expanded or approved - in fact, theSm Juan River is not
mentioned at all. This document did nothing more than clarifl in writing the
existing collaborative relationship between the Nicaraguan and CostR aican
security forces in the border area, premisedon the desire to exchange
information, coordinatelawenforcementefforts,andcontinueparallelpatrols. As
stated by Brigadier General Denis MembrefioRivas, the Commanderof the
Nicaraguan MilitaryDetachmentatthe timethiscommuniqukwas signed:
"Frommy firstday atthe SouthernMilitary Detachmeni tn
February 1992until my departureat the end of December
1995, ourrelations withthe Costa Ricansecuritypersonnel
were very good. From time to time, my Detachment coordinated operations against crime with the Guardia
Civil, where in a parallel manner we would travel the
relevant sectorof the border, them fi-omtheir territory and
us navigating the San Juan River. These efforts were
primarily focused on the prevention ofillegal activities or
rescuing shipwreck victims. The Costa Rican security
personnel never navigated on the river without first
requesting authorizationfrommy ~etachrnent"'~' .
2.120. The communiquddid nothingto expandCosta Rica's navigation rights as
provided under theTreaty of Limits or the Cleveland Award. Pursuant to the
communiqud, which put in writing the procedures that had previously been
adopted informallyby the respectivemilitary commandersin the area, patrolling
of the border area for law enforcement purposeswas coordinated and carriedout
in parallel. The evidenceshowsthat Costa Ricansecuritypersonnel onlyused the
river after seeking and obtainingprior authorization byNicaragua. As shown in
Chapter V below132,Costa Rican security personnelhave not patrolled the San
Juan River for law enforcement purposes,or carried out lawenforcement actions
on the River, excepton those infrequent and short-lived occasions when they
were expressly authorizedby Nicaragua to do so, and in conformity with the
conditions and time limitations imposed by Nicaragua. At most, the Cuadra-
Castro Communiqudis an authorization by Nicaraguafor Costa Rican security
personnelto use the river for limitedpurposes, subjectto specific conditions.As
sovereign over the river, it is Nicaragua's prerogative to issue such
authorizations,which would not have been necessaryhad Costa Rica enjoyed a
right to engage in the authorized activity. Consequently, the Cuadra-Castro
Comuniqud is evidencenot of Costa Rica'sright to navigate on the San Juan
13'Affidavit of Brigadier GeneralDenis Membreiio Rivas, 10 March 2008 (hereinafter
"MembreiioAflidavit"):NR,Vol.11,hex 73.
'32SeeNR,paras.5.65,5.77, and 5.80-5.84.River with law enforcement vessels, but exactly the contrary I.t is evidenceof
CostaRica'slackof suchright.
(c) The 1998 Cuadra-LizanoJoint Communique'
2.121. The lastrelevant instrument, according to Costa Rica,wouldbe the 1998
Cuadra-Lizano Joint ~ommuni~u6"~, which, according to the Applicant
"confiis therightof Costa RicanpoliceofEicerstonavigateonthe San~uan"'~~.
As already explajned in some detail in the Counter-~emorial'~~,this alleged
"agreement", which has never been officially published anywhere,whether
internally or, afortiori, by the Secretariatof the United Nations, was declared
null and void by the Governmentof Nicaragua less than two weeks after its
creation(on 11August1998)'~~.
2.122. To fullyunderstandthe inherentlimitationof the document,it is useful to
describethe context in whichit was concluded.The communiqu6was signedby
the Nicaraguan Ministerof Defence and the Costa Rican Ministerof Public
Securityin an attemptto assuage the tension betweenthe two nations duringthe
height of the diplomatic crisisin July 1998 - following Costa Rica's illegal
arrests of Nicaraguans on the San Juan River and Nicaragua's resultant
prohibition of Civil Guard navigation. During that meeting,the two Ministers
prepared ajoint communiquC,in which both parties manifested thaC t ivil Guard
boats could re-supply their postsvia the river, after givingthe required notice,
'3See Cuadra-Lizano JointComuniqu6,30 July 1998.CRM,Vol. 11Annex28.
13CRR,para.2.13.
'3See NCM,paras. 3.2.9-3.2.12.
'"See Letterof theNicaraguanactingMinisterof Foreign Affairsto the Costa RicanMinisterof
Foreign Affairsand Worshipof 11August1998. CRM,Vol.111, nnex 49.carrying only theirsmall arms,reportingat eachNicaraguan militarypost passed,
and accompanied bya Nicaraguan militaryesc01-t'~~ I. essence, the document
restored the practice which the Nicaraguanmilitaryhad permitted at times in the
past, but had stoppedauthorizingin July 1998. However, whenthe communiqu6
left the high-pressure meeting room and was objectively evaluated by the
Nicaraguan Congress and Executive, the relevant legal authorities quickly
realized that the hastily concluded communiqu6 had been executed in clear
violationof theNicaraguanConstitutionandwas invalid13'.
2.123. In this regard, the Cuadra-LizanoCommuniqu6is similar to the earlier
Cuadra-CastroCommuniqu6but even less relevant. At most,both were express
authorizationsby Nicaraguafor CostaRicanpublicvesselsto navigate onthe San
Juan River for specified purposes and subject to conditions providing for strict
limitation and control by Nicaragua - authorizations that would not have been
necessary if CostaRicahad already possessed theright to engagein the specified
activities, and conditionsthatwere totally contradictoryto Costa Rica's putative
possession of such a right. Beyond this, the Cuadra-Lizano Communiqu6was
never a binding international legal document, nor did it create any rights of
navigation for Costa Rican public vessels beyond the limited privileges that
Nicaragua had chosento grant in some previous moments ofpositive relations.
137See Resolutionof the Republicof Nicaragua's Natl ssembly onthe Cuadra-LizanoJoint
Communiqu6,18August 1998.NCM,Vol.11,Annex68.
13'Thejoint communiqu6violated the Constitutionof the Republicof Nicaragua,as discussedin
NCM,para3.2.12, aswellasthe followingarticles:
Article 92: "...The transit or stationingof foreign militaryships,aircraftand machinerymay be
authorizedforhumanitarianpurposes, alwaysprovided that such authoris requested bythe
GovernmentoftheRepublicandratifiedby theNational Assembly;"
Article 130: "No appointmentgrants, to that who exercisesit, additional functions thanthose
conferred to by the Constitutionand the ..All governmentofficials from the State must
provide an accounting of his or her assets before assuming a position andafter the term is
completed. Thelaw regulatesthismatterNR, Vol.IIA,nnex54.Finally, as already discussed, thecomm~que was declarednull andvoid - and
therefore lacksany legal force.
3. The 1916JudgmentoftheCentralAmericanCourtofJustice
2.124. Costa Rica insists in herReply on the relevance of the decision of the
CentralAmerican Courtof Justiceto the issuesnow before the court13'.In fact,
as pointed out in the ~ounter-~emoriall~~,this judgment has no relevance
whatsoever to the present case. The questions at issue before the Central
American Court are completely unrelatedto those before this Court. The 1916
case did not concern the extent of Costa Rica's navigationalrights on the San
Juan Riverbut only,as theCourtemphasized,the conclusionof a treatybetween
Nicaragua and the United States relatingto the constructionof an inter-oceanic
canall4l.The CentralAmericanCourt purportedto do no morethan look to the
1858Treatyand the ClevelandAwardas the legal framework governingthe San
Juan. It certainlydid not purportto enlarge or affectin any way Costa Rica's
rightsunder thoseinstnunents.
2.125. In 1916, Costa Ricawas not claiming anyrights to navigate with state
vessels with armed men on board, nor was she claiming any rights to bring
foreign and nationaltouriststo view thesights(onthe Nicaraguan side,sinceon
the CostaRican side there is mainly farmland) along theSanJuan River.What
Costa Ricaclaimedbeforethe CentralAmericanCourtwas thatwhenNicaragua
13'SeeCRR,para. 2.10.
14SeeNCM, para. 3.2.6.
14'See Republic of Costa Rica v Republic of Nicaragua, Central American Courtof Justice,
Opinion andDecisionofthe Court(AJIL, 1917). CRM,Annex21,p. 122.enteredinto a treatywith theUnited StatesofAmericain 1914(Chamorro-Bryan)
giving that State an option to build a canal across Nicaraguan territory, she
violated her obligationto first consult with CostaRica in accordancewith Article
VIII of the 1858Treaty and Paragraphs 10and 11of the ClevelandAward. Costa
Rica furthermore alleged that since the treaty ceded parts of the territory of
Nicaragua to the United States,it violated the rights of Costa Rica and those of
the rest of the States of Central America,stipulated in the General Treaty of
Peace and Amity agreed to by all the Central American States in 1907 in
Washington,D.C.
2.126. The decision of theCentral AmericanCourtwas limitedto these issues.It
declared:
"that the Governmentof Nicaragua has violated, to the injury
of Costa Rica, the rights granted to the latter by the Cafias-
Jerez Treaty of Limits of April fifteen,eighteen hundred and
fifty eight,by the Cleveland Awardof March twenty-second,
eighteenhundred and fifty-eight, and bythe CentralAmerican
Treaty of Peace and Amity of Decembertwentieth, nineteen
hundred and seven"'42.
2.127. Any wording of that Judgment that might becons.truedto refer to Costa
Rica's other rights inthe 1858Treatyor the 1888Award are at most obiter dicta
and even these dicta are general statementsparaphrasing looselythe wording of
those same documents.The Central AmericanCourthad no authorityto reviewor
add anythingto the 1858Treatyas interpreted by theClevelandAward; nordid it
attempt todo so.
'42CRM,Vol.11,Annex21 (AJIL1917, p.229).
802.128. The CentralAmerican Courtof Justice consistedof fiveJudges appointed
by the legislativebodies of each of the fivemember States."Unfortunately,"as
Hudsonpoints out,"the judgesofthe court seemto have beenlookeduponnot as
international officials of all five States, but as officials of their respective
~tates"'". And moreunfortunately for Nicaragua,the Chamorro-BryanTreaty
she had enteredinto with the United States was hotly rejected by the other four
member States.Three of them, CostaRica, Honduras andEl Salvador, hadsent
notes of protest to the United [email protected] simple terms, all the Judges were
pronouncingon a question that involvedthe national interests of each of their
own States vis-A-visNicaragua. Buteven in this inevitable4 to 1 decision, the
CentralAmericanjudges werenot deciding anyofthe issuespresentlybeforethe
Court.
Section HI. TheScopeofthe ClevelandAward
2.129. CostaRica acceptsthat the applicablelaw consistsof the 1858Treaty as
interpretedin the 1888ClevelandAward,but she mischaracterizesNicaragua's
position on the Cleveland Award and readsmuch into the Award thatis simply
not there. Thissectionwill distinguish betweenwhat questions were decidedin
the Cleveland Awardand whatquestions werenot, andshowwhy CostaRica's
attempteduse of theClevelandAward tosupporthercaseis entirelymisplaced.
'4M.Hudson,ThePermanentCourtofIntemationa1Justice, Macmilla, ewYork, 1943,p. 46.
SeeAJIL1917,p. 192. A. THECLEVELAN ADWARD LIMITED COSTA RIGA'S RIGHTS TONAVIGATE
THE SANJUAN WITH PUBLIC VESSELS
2.130. The Court will recall that in paragraph Second of his award, President
Clevelandfoundthat CostaRica
"has not the right of navigation ofthe River San Juan with
vessels of war; but she may navigate said river with such
vessels of the Revenue Service as may be related to and
connectedwith her enjoyment of the 'purposes ofcommerce'
accorded to herin said article, or as may be necessary to the
protectionof said
2.131. As the text makes clear, the Arbitratordecided twoissues:First, whether
Costa Rica has the right of navigation on the San Juan with vessels of war; and
second, whether she hasthe right of navigation on the river with vessels of the
revenue service. The Arbitrator answered the first question clearly and
emphaticallyin the negative.
2.132. As to the second question, President Clevelanddoubtlessawarethat a
revenue vessel, or cutter, could be made to be the functional equivalent of a
vessel of war-at least one that would be capableof navigatingon a rather small
river like the San Juan, its tributaries and distributaries (such as the Colorado
River). The publication referred to by Costa Rica, US. Coast Guard and
Revenue Cutters, 1790-1935, by Donald L. ~anne~'~~,leaves no doubt that
contemporaryversionsof these revenuevessels could bequite formidable. Thus,
if the Arbitrator were goingto permit navigation by CostaRican revenue vessels
'45Awardof the Arbitrator, the Presidentof the United States,uponthe validityof the Treatyof
Limitsof 1858between Nicaragua andaica(hereinafter "CleAward"),para.Second.
CRM,Vol. 11Annex16.
'46Naval Institute Press,Annapolis, Maryland, 1995.a refersto this publication in
CRM,para.4.81.he would have to do so in a way that prevented suchcraft fkomevolving into
what were effectivelyvessels of war, thus rendering meaninglesshis holding on
the first question.
2.133. President Cleveland therefore answered the second question quite
carefully. The Court willnote that he didnot simply say "but she may navigate
said river with vessels of the Revenue Service," which he certainly had the
authority to do had he found that this conformed withthe text and spirit of the
Treaty. Instead,the Arbitrator placed clear restrictions uponnavigationby Costa
Rican revenue vessels, so that he would not effectivelygive back something he
had just taken away in prohibiting navigation by Costa Rican warships. He
imposed these restrictions by tying any navigation by Costa Rican revenue
vessels to the exerciseof anotherright CostaRica enjoyed underthe 1858Treaty
(a right thatwasnot at issuein the arbitration). Thus,President Clevelandlimited
navigation on the San JuanRiverby Costa Rican revenue vesselsto that whichis
"related to and connected with her enjoymentof the 'objetos de comercio'
accordedto her in [Article VI of the 1858Treaty], or as may be necessary to the
protection of saidenjoyment."
2.134. Nicaragua referred to this statement by the Arbitrator in her Counter-
Memorialinthe following words:
"For President Cleveland,the only navigationby Costa Rican
vessels of the revenue service thatwas permittedby the treaty
was that which is 'relatedto and connectedwith' the right to
navigatewith articlesof trade."147
'4NCM,para. 3.1.54.2.135. In her Reply, Costa Rica, referring to this passage of the Counter-
Memorial, accuses Nicaragua of "misrepresent[ing] the language used by
President Cleveland in the 1888 ward"'^^ .osta Rica makes this serious
accusation simply because, in paraphrasing thearbitrator's finding, Nicaragua
used what in her viewis the correct translationof "objetosde comercio" - articles
of trade- a translation thatis used throughoutthe Counter-Memorial. CostaRica
does not complain about the wordsNicaraguaplaced in quotation marks -- and
correctly attributedto President Cleveland--"relatedto and connectwith". These
quoted words, not"objetosde comercio"or articlesoftrade, werethe focus ofthe
section of Nicaragua's Counter-Memorialin question -- and of the relevant
portionofparagraphSecondof theClevelandAward.
2.136. The history of the case leadingup to President Cleveland's 1888Award
still further evidencesthe limitsthe Arbitrator intendedto imposeon CostaRica's
public navigationon the San Juan. As the Court is aware, the mandate for the
Cleveland Arbitration was contained in theTreaty signed by both parties at
Guatemala City on 24 December 1886. Article I of this Treaty submitted to
arbitration the validityof the 1858Treaty.It further providedin ArticleVI that if
the Treatywas declared valid, then"the same awardshall declare whether Costa
Rica has the right to navigate the River San Juan withships of war or revenue
boats. Alsothe decision aforesaid shall,in caseofthe validity of said Convention,
decide the other pointsof doubtful interpretation foundby either of the Parties in
the Treaty..."I4'
14'CRR,para. 1.09.
14'CRM, Vol.11,Annex14,p. 88.2.137. Nicaragua accordingly communicated eleven pointi st consideredto be of
doubtfulinterpretation. QuestionNumberEight (8)posedby Nicaragua asked:
"If CostaRica, who, accordingto ArticleVI of the Treaty,has
only the right ofreenavigationfor the purposesof commerce
in the waters of the SanJuan River,can she also navigatewith
men-of-waror revenue cutters in thesamewaters?"50
2.138. The answer Costa Rica gave in her opening submissionto President
Cleveland was not at all surprising. It began "by calling the attention of the
arbitratorto the factthatthe wordonly...doesnot occur inArticleVI of the treaty
of limit^." '^m'phasisin original). After quotingArticle VI, Costa Rica then
added the following rhetorical question (whichit naturally answered in the
negative):
"Does this mean that Costa Rica cannot under any
circumstances navigate with public vesselsin the said waters,
whether the said vesselis properly a man-of-war,or sirnplya
revenue cutter, or any other vessel intended to prevent
smuggling,orto carry ordersto the authoritiesof the bordering
districts, or for any other purpose not exactly withinthe
meaningof transportationof mer~handise?"'~~
2.139. This passage iscritical with regard to two of the most central points
before the Court today. First, it showsthat Costa Rica understoodthat, literally,
the words "con objetos de comercio" mean --exactly as Nicaragua has always
maintained --"with articlesof trade," or,as Costa Ricaput it, "transportationof
merchandise". This language willbe discussed further in Chapter111of this
Rejoinder.
15Argumentof CostaRica,op.cit.,p.NR,Vol.11A,nnex 5.
15Ibid.
15Ibid.2.140. Thesecondcriticalpointhas to dowith CostaRica's contentionbefore the
Court today that she has the right under the Treaty and the award to navigate on
the San Juan with virtually every kind of public vessel except warships,strict0
sensu. It will be evidentfrom the passage set forthabove that Costa Rica made
the same argument before President Cleveland,in the form of a rhetorical
question,requestingthe Arbitratorto decidethat apartfrom the "transportationof
merchandise",as she describedit, she alsohad the right to navigate with alltypes
ofpublic vessels. Thus,the issuewaspresentedquite clearlyto the Arbitrator.
2.141. The Award of PresidentClevelandon this point leavesno doubt about his
response. Under paragraph Second of his award, he decided that Costa Rica's
public vesselshad no right to navigate on the San JuanRiver --except only that
vessels of her revenue service couldto the extent,and only to the extent "related
to and connectedwith her enjoyment of the"purposesof commerce"accordedto
her in Article VI of the 1858 Treaty,or as may benecessaryto the protection of
saidenjoyment"'53.
2.142. President Cleveland clearly did not acceptCosta Rica's contention that
she could navigate with "any other vessel intended toprevent smuggling, or to
carry ordersto the authoritiesof the borderingdistricts, or for any other purpose
not exactlywithin the meaningof transportation ofmerchandise"'". Yet now,
120 years after the Cleveland Award, Costa Rica is insisting that the Court
reversethat award and adjudge anddeclarethat Nicaraguahas
ls3See ClevelandAward,op.cit.,para. Second.CRM,VoII, nnex 16,p. 98.
lS4SeeArgument on the Question of the Validity ofthe Treaty ofLimits Between CostaRica and
Nicaragua and OtherSupplementaryPoints Connected Wt, Submittedto theArbitrationof the
Presidentof the UnitedStatesof America, FiledonBehayof the Government ofCost1887a,
(hereinafter"Argument ofCostaRiea"),p. 1NR, Vol.11,Annex5. "the obligationto allow CostaRican official vessels the right
to navigate the San Juan, including for purposesof re-supply
and exchangeof personnelof the border posts alongthe right
bank of the River with their official equipment, including
service arms and amunition, and for the purposes of
protection as established inthe relevant instruments,and in
particulararticle2ofthe Cleveland ward."'^^
2.143. Nicaraguarespectfbllyrequeststhe Courtto see thissubmissionof Costa
Rica for what it is: an effort to obtainin the early 21Stcentury what she tried
unsuccessfullyto obtainin the late 19¢ury. TheCourt shouldconsiderthis
mattertobe resju5icata.
2.144. The practice of the parties subsequentto the 1858Treaty but before the
ClevelandAwardis also consistentwith the decisionof the Arbitrator, ascan be
seen in the documentsthat were annexedto the Costa Rican Argumentsduring
theArbitration.
2.145. One of the annexes filed by Costa Rica consists of a note sent by
Nicaragua on 23 April 1863 whereby she cautioned Costa Rica that some
violencewasanticipatedfTomforeignerswho"are accessoriesto thepiraticaland
filibuster outrage"156that had recently been perpetrated. For this reason,
Nicaragua suggested that CostaRica "cause some forces to be stationed at
Sarapiqui to meet on that side any emergency thatthe same events might
occasionthere"157(emphasisadded).
CRM,Submissions,2 (g),p. 147.
SeeArgumentof Costa Rica,op. cit.,p.NR,2Vol. 11,Annex 5.
Seeibid.,p.243.2.146. Even in this case of anticipated danger,corning soon after the Filibuster
Wars, CostaRicawas askedonlyto "meet on that side" - i.e., on the CostaRican
bank of the river - any further emergency. She wasnot asked to patrol the river
itself.
2.147. Another telling point regarding how the parties understood the rights
conferred on Costa Ricaby the 1858 Treaty canbe appreciatedin a Costa Rican
Decree of 28 April 1869 prohibiting, in Article1, the export through the San
Juan Riverof lumber and other resourcesof the forests. InArticle 3, it established
revenueposts in each pointof intersectionof the San Carlos and Sarapiquirivers
withthe San JuanRiver158.
2.148. Two points are interestingaboutthis decree.TheJirst is that nowhere does
it inhcate that revenue patrols are to navigate the San Juan in search of
contraband. Themandate is only for revenue stationson the Costa Rican side of
theborder.
2.149. Thesecondpoint is that it is evident&omthe decreethat even as far back
as 1869there was a problem of contraband lumberand other natural resourcesof
the forests that had to be controlled.One hundred andforty years later, with the
intense deforestation occurring everywhere and quite noticeably on the Costa
Rican sideof the border, it is unreasonableto claim that Nicaraguahas no right to
158
SeeReply totheArgument ofNicaraguaonthequestionof thevalidityor nullityof thetreaty 1
of limits of April 15,1858, to be decided by ThePresidentof the UnitedStatusof America as
Arbitrator,887(hereinafterLLReplyfCostaRica"),pp. 201-202NR, Vol.11Annex6.
88care for her natural reserves along theriver by inspectingthe cargo of passing
boats in her own territory159.Morewillbe saidonthisissuein Chapter IV below.
2.150. The foregoingexaminationof the Cleveland Awardin light of theparties'
submissionsto the Arbitrator, as wellasthe practiceofNicaragua andCostaRica
under the 1858 Treaty and prior to the Cleveland Award, demonstrates beyond
any doubt that CostaRica7sright to navigateon the San Juan with publicvessels
was limited to navigation by revenue boats "relatedto and connected with her
enjoymentof the 'purposesofcommerce ,,,1.0
2.151. In the preceding paragraphs, Nicaragua discussedwhat the Cleveland
Award decided. She willnow tur no an issue that the Award didnot decide. In
particular, Nicaragua will demonstrate that President Cleveland's use of the
English phrase "for purposes of commerce"in paragraphSecond of his Award
has no bearing on any of theissues in dispute in this case because he wasnot
called uponto determinethemeaning of thatexpressionin anylanguage.
2.152. In paragraph Second, President Cleveland found that CostaRica "may
navigate [the RiverSan Juan]with suchvesselsof the Revenue Serviceasmay be
related to and connected withher enjoyment of the 'purposes of commerce'
accorded to her in said article, or asmay be necessary to the protectionof said
15See CRM, Submissions,2 (d),147.
16ClevelandAward,op.citCRM,Vol.11,Annex16,p. 98.enjoyment."161 Costa Rica seizes on the Arbitrator's use of the phrase "for
purposes of commerce" and suggests that this means that he necessarily
determined the meaning of the expression "con objetos de comercio" in Article
VI ofthe Treatyof 1858. InherReply,for example,CostaRica states:
"The parties agree thatthe case is primarily governedby the
1858 Treaty and the 1888 Cleveland Award, that award
confirming Costa Rica's right to sail vesselsin the lowerpart
of theSanJuan '$orpurposes ofcommerce 'and its right to sail
publicvessels in connexionwith suchnavigation."162
2.153. This paragraph implies that President Cleveland decided that Costa Rica
had a "right to sail vessels in the lower part of the San Juan 'for purposes of
commerce"', and that he decidedthat the meaning of the phrase "con objetosde
comercio" was"forpurposesof commerce".
2.154. However,as demonstrated in Nicaragua'scounter-~emoriall~~,President
Cleveland could not have intended to decide anything about the meaning in
Englishof thephrase "con objetosde comercio"because theissuewas not before
him. None of the "points of doubthl interpretation"164 raised by Nicaragua
relatedin anywayto this expression.
2.155. In referring to Costa Rica's "enjoymentof the 'purposesof commerce"',
President Cleveland simply adopted the English translationof the 1858 Treaty
submitted by both parties (therewas no material difference in this respect as
16'Ibid.
16'CRR,para. 2.08(emphasis added).
'63NCM,paras. 3.1.19-3.1.26.
'64LetterfromFernandoGuzmh to CostaRicanForeign Minister, 22 June1887. CRM,Vol.III,
Annex 36.between thetwo translations), beingcarefulto place theexpression"for purposes
of comrnerce" within quotation marks. As Nicaragua has pointed out in her
counter-~ernoriall~~,this can only be understood as a reference back to the
original Spanish text,which the arbitrator did not intendto alter by use of the
English translation - and indeed couldnot have intendedto alter becauseof his
obligation to apply the Treaty. His use of the translation -- a translationwhich
Nicaraguahas shownto be incorrect166--is, at most, obiter dicta. And even that
is likelyan overstatementunderthe circumstances.
2.156. In fact, there is no evidence that President Cleveland considered the
original Spanishtext of the Treatyat all in the process of preparing his award.
This is confmed by a Note of 31 October 1887fromUnited States Secretaryof
State T.F. Bayard to Nicaraguan Envoy and Minister Plenipotentiary Horacio
Guzmtin,from which CostaRica quotesin her Reply,in which Secretary Bayard
stresses that it is the Englishtext of the Treaty "upon which the arbitratormust
necessarily depend forhis understandingof the issuesbefore him1". Assistant
Secretary of State George L. Rives, to whom Cleveland delegated thetask of
preparing a draft of his arbitralaward,did note certainphrases in Spanishin his
first report that he consideredto be most important for the purposes of the
arbitration- none of whichwas "con objetosde corner~io~'~~I~ n.any event, had
'65~~~,paras. 3.1.7and4.1.18.
16NCM, paras.4.1.16-4.1.36;and ChapII IfthisRejoinder,below.
lb7Note from Secretary of State of the United StatsT.F. Bayard, to Nicaraguan Envoy
Extraordinary and MinisterPlenipotentiary, HoracioGm;i31 October 1887. CRR, Vol. 11,
Annex29, quotedin CRRpara.3.43.
lbNCM,para.3.1.25.either President Clevelandor GeorgeRives wishedto referto the originalSpanish
text, they had accessto it; it hadbeenprovidedby CostaRica16'.
2.157. In an effort to give the Cleveland Award a legal effect it could not
possibly have had, CostaRica makesmuch of the fact that Nicaragua submitted
to the Arbitratoronlymaterialsin ~n~lish'~'.Yet, this fact only confis that the
parties werenot askingthe Arbitrator to interpret theoriginal Spanishtext. The
two principal questions submittedto President Cleveland were whetherthe 1858
Treaty was valid and, if so, "whether Costa Rica has the right to navigate the
River San Juan with ships of war or revenue boats"171. These questions had
nothing to do with interpretingthe original text in Spanish. Nor didthe eleven
points of doubtful interpretation submittedto the Arbitrator by ~icaragua'~~.
Thus, CostaRicaYs preoccupation with Nicaragua's having submitted materialtso
the Arbitrator only in English ignores the questions that were actually submitted
to the Arbitrator. In addition,it ignores considerationsof courtesyand efficiency
that must also have motivated both Nicaragua and Costa Rica; President
Cleveland, afterall,worked in English.
2.158. The conclusionis therefore clear. Themere appearanceof the phrase "for
purposes of commerce"in the ClevelandAwardis irrelevantto the determination
See NR, originals filed withthe Court Registrar.Informe sobre la cuestibnde validez del
tratadode limitesde Costa Ricay Nicaraguay puntosaccesoriossometidosa1Arbitrajedel Seiior
Presidentede 10sEstadosUnidosde America.Presentadoen nombre delGobiernode Costa Rica
por Pedro Perez Zeledbn.Washington,D.C. Gibson Bros.,Printers and Bookbinders, 1887.pp.
171-177.
170CRR,para. 3.43.
l7'Romhn-Esquivel-CruzConvention ofArbitration,24 December1886. NCM, Vol. 11,Annex
11;see alsoArticle 6,and CRM, Vol.11,Annex 14.
172SeeLetterfromFernandoGuzmhnto CostaRicanForeignMinister, 22 June 1887.CRM, Vol.
111A, nnex 36. of the true meaning of the Spanishexpression "con objetos decomercio". That
meaning is the subjectofthe following chapterof this Rejoinder.
2.159. This section has shown that: (1) Nicaragua and Costa Rica both accept
that the applicable law is the 1858 Treaty as interpretedin the 1888 Cleveland
Award; (2) paragraph Second of the ClevelandAward, particularly as elucidated
by Costa Rica's argumentsto the American President,make it clear that Costa
Rica's right to navigate the San Juan River with public vessels is limited to
navigationby vessels of the revenue serviceto the extent, and onlyto the extent,
"related to and connected with" her navigation "con objetos de comercio"; and
(3) contrary to Costa Rica's contention, the use by President Clevelandof the
expression "for purposes of commerce" has no bearing on the present case
because the meaning of the original Spanish expression "con objetos de
comercio" as used in the 1858 Treaty was not in dispute in 1858 and was
thereforenotplaced before the Arbitrator.
Conclusions
2.160. The evidence available leadsto the inevitableconclusion thatthe primary
object and purposeof the 1858Treaty was the definitive settlement of the long-
I standing territorial dispute concerning the district of Nicoya (and the overall
I
I limits of Costa Rica and Nicaragua). The evidenceof the specific object and
i purposeis as follows: (i) The historical context, including several bilateral treaties which
formpart of thehistoricalcontext173.
(ii) Thenature ofthe title, andthetext of thepreamble.
(iii) The provisions of the Treaty, including the sequence of the
provisionsandtherankingofArticleVI.
(iv) The diplomatic correspondence subsequent to theconclusion of
the ~reaty'~~.
The text of theClevelandAwardof 22 March 1888and the Report
(v)
to the Arbitratorby George L. Rives, Assistant Secretaryof State,
of 2 March 1888'~~.
2.161. Inher pleadings CostaRica seeksto give a majorrole to theprinciples of
general international law. The role of general international law, and related
matters,havebeen examinedin detail in SectionI1of the present Chapter. In the
result it is clear that general international law, as presented in contemporary
sources, doesnot help Costa Rica. In the first place it is supplantedby the 1858
Treatywhich introducesa qualified right of "free navigation7'in favour of Costa
Rica. And, in addition, evenif general internationallaw wereto apply, it would
not recognise g right of navigationin her favour: theapplicableprinciplewould
be the authority of the sovereign state (Nicaragua) over the watersof the San
Juan.
173SeealsoNCM,paras2.1.36-2.1.39.
'74SeealsoNCM,paras.2.1-22-24.
175SeeNR, paras.2.165and5.11-5.142.162. In Section 11it is also demonstratedthat,unlessCostaRica canpositively
show that other rules apply, thereis no room for any further limitation upon
Nicaragua'ssovereignty apart&omthat resulting&omArticle VI of the Treaty.
Theattemptsby Costa Ricatopromotethe applicationof otherrules areshownto
be failures.
2.163. The first such candidate rule concerns the so-called "relatrights", and
the relevantconjectures are rejected in ChapterV below. The othercandidates
take the formof threebilateralinstrumentswhich haveno legalrelevance.
2.164. In her Reply Costa Ricainsists on therelevanceof the 1916Judgmentof
the GeneralAmerican Courtof Justiceto the issuesnow before the Court. Not
for the first time, Nicaraguamust emphasise that this decision hano relevance
whatsoever.
2.165. In thethirdsectionof thepresent chapterithas been shownthat:
contraryto CostaRica'scontention,the Cleveland Award didnot
(a)
granther a right to navigation with herpublicvessels, orto carry
out police or other security-relatedhctions on the river; the
question putby the parties to President Clevelandwas whether
CostaRica had the rightunder the 1858Treatyto navigate on the
river with her vessels of war, or with vessels of her revenue
service,orwhetherhernavigationwaslimitedto "transportationof
merchandise;"the Arbitrator determinedthat Costa Rica had no
right to navigate with vesselsof war, butonlywith vessels of her
revenue servicewhen suchnavigation is relatedto, connected with
or necessary for the protection of her right to navigate "for
purposes of commerce". ChapterV of this Rejoinder addresses the nature and extentof CostaRica's rightto navigate with vessels
of her revenue service, as well as Costa Rica's alleged rights
regardingprotection,custody,anddefence ofthe river; and
(b) contrary to Costa Rica's contention, the use by President
Cleveland of the expression "for purposes of commerce"has no
bearing on the present case becausethe meaning of the original
Spanish expression"con objetosde comercio" as used in the 1858
Treaty was not in dispute in 1858 and was therefore not placed
before the Arbitrator. ChapterI11of this Rejoinder addresses the
proper interpretationto be givento the expression"con objetosde
comercio," and, accordingly, to the nature and extent of Costa
Rica's rightto navigate"con objetosde comercio"under the 1858
Treaty.
2.166. In her Reply Costa Rica is remarkably reluctant torecognise the force of
the evidence, either inits separatemanifestations, oras a whole. In this settingit
has been necessary to reaffirm the character and main object and purpose of the
Treaty of Limits, and to place its provisions within the appropriate legal
perspective. As stated above in the Conclusionsto Section I of this chapter,
within the provisions of the Treaty and whatever the nature of Costa Rica's
navigation rights thereunder, Nicaraguamust have the exclusive competenceto
exercisethe followingregulatory powers.
(a) The protection andmaintenance of theright of navigation, that is
to say, the power to maintain public orderand standardsof safety
in respectof navigation; The protection of the border, includingresort to immigration
(3)
procedures in respect of foreign nationals entering Nicaraguan
territory;
(c) The exerciseof normalpolicepowers;
(4 Theprotectionofthe environment andnaturalresources;and
(e) The maintenance of the Treaty provisions prescribing the
conditionsof navigationin accordance with the Treaty, thatis to
say, the maintenanceof the discipline of the Treaty as such,
together with the terms of the Cleveland Award. CWPTER 111:
THENAT EXTENTOFCOSTARICA'SRIGHTTO
NAVIGATE ccCQNQBnTQS DE CIQ"
Introduction
3.1. Nicaragua and Costa Rica agrethat,underArticleVI of the1858 Treaty
of Limits, Nicaragua has "exclusive dominion andsupreme control (sumo
imperio)" over the San Juan River, andthat Costa Rica enjoys a "right of free
navigation"ontheRiver"conobjetosde comercio.. ."Thereneither isnor canbe
a dispute over Nicaragua's "exclusive dominion and supremecontrol (sumo
imperio)" over the River, and CostaRica acknowledgesthis176.Nor is there a
dispute that Costa Rica has a "right of free navigation" on a part of the river.
Thereis disagreement,however, overthe natureandextentof CostaRica'sright,
andthisdisagreementis attheheartof thepresentcase.
3.2. For Nicaragua, the Treatyof Limits conferred on Costa Rica, as an
exception to Nicaragua's "exclusivedominion and supreme control (sumo
imperio)" over the river, a "right of fiee navigation ...con objetos de
comercio .." Pursuant to this linguistic formulation,the "free navigation" to
which Costa Rica enjoys a "right" is necessarily limited to navigation "con
objetosde comercio;"that is CostaRica's"right offree navigation"existswhen
her navigationis"con objetosde comercio." And, therefore, navigationthat is
'7SeeCRR,para2.69;seealCostaRicanForeignMinister,Roberto Traja,toNicaraguan
ForeignMinister,Norman Caldera Cardal,te No. DM-462-05,28 Sept. 2005. CRM,
Annexes,Vol.1, nnex80.not "con objetos de comercio" is not a "right" afforded to Costa Rica by the
~reaty. 177
3.3. Costa Rica, by contrast, reads the Treaty as though there were a full stop
after the word "navigation." For her, the right of 'Tree navigation" that she
claims to enjoy is free-floating and unrestricted, andmay be exercised without
regard to the nature or purpose of the navigation.In particular, CostaRica argues
in these proceedings that her "right of free navigation" onthe San Juan River is
entirely separate from, and independent of, herright to navigate "con objetos de
comercio." In this chapterit will be shownthat CostaRica's argumentis entirely
without merit, and that she enjoys no navigationalrights other than those related
to navigation "con objetosde comercio."
3.4. A second disagreement between the parties concerns the proper
interpretation of "con objetos de comercio." For Nicaragua, the word "objetos"
means tangible "objects" or "articles" or"goods," such that the entire phrase is
correctly translated as "with articles of trade." For Costa Rica, "objetos" means
"purposes," and the phrase means "for purposes of commerce." As shown in the
Counter-Memorial, and as will be further explained below, Nicaragua's
understanding of "objetos" is the correct one: and the proper English translation
of "con objetos de comercioJ'is "with articles of trade." However, and more to
the point, in 1858 both parties' interpretations of thephrase "con objetos de
comercioJ' -- that of Nicaragua and that of Costa Rica -- had the identical
meaning. Whether the words of the Treaty are properly translated as "with
'77The "perpetualright of free navigation"does not include the rightto be a party to any canal
agreementsthat Nicaragua might enterinto. This was made cleainthe Cleveland Award,at
paragraph 11. The "perpetuity"of Costaca'srightisthus contingentonthis eventuality. In the
text, the use of the originallanguageof the 1858Treatyis maintained,subjectto this reservation
ofNicaragua's rights.articles of trade" or "for purposes of commerce,"their meaning wasthe same,
because --as will be shown below --in 1858cccommerce" necessarily meant
"trade in goods." The idea that commerce also includes services -- such as
tourism or passenger transit-- is a late-twentiethcenturyinventionfar removed
fi-omthe vocabulary or conceptual understanding of thosewhodraftedthe Treaty
of Limits more than 100 years earlier. Thus, whichevep rarty is right about the
English translationof "objetos,"the key word in the phrase is 'komercio," and
the entirephrase is properly understoodas referring eitherto "articlesof trade(in
goods)" or to ccpurposes of trade (in goods)," which in the context of the 1858
Treaty mean the same thing: Costa Rica's "right of fi-eenavigation" exists
whenever(but onlywhenever)her navigation involvets radein goods.
3.5. Costa Rica allbut admits that "con objetosde comercio" meanttrade in
goods to mid-nineteenth century draftsmen, when she argues for an
"evo1utionary"interpretationof the phrase and invokes inter-temporallaw to
claimthat, sincewe arenow in the year 2008,the Courtshouldsupplya twenty-
f~st century interpretationof 'komercio,"one which injects intothat word (as a
nineteenth century interpretation wouldnot), the concept of services,including
tourism and passenger transit.By this logic, CostaRica would extendher "right
of fi-eenavigation"beyondnavigation involving trade in goods (asthe right was
understood by the parties in 1858) to a right to navigate in performance of
comercial services, including sightseeing excursions. Thii ss a third area of
disagreementbetween the partiesa ,ndit, too,is addressedinthis chapter, whereit
is shown that the 1858 Treatycannot be given the evolutionaryinterpretation
advocatedby Costa Rica without:(i) ignoringits statusas a Treatyof Limits;(ii)
upsetting the delicate and carefully-balancedquid pro quo that the parties
incorporatedinto the Treaty (regardingNicaragua'sacceptanceof Costa Rica's
annexationofNicoyaIGuanacasteinreturnfor her exclusive sovereignty over theSan Juan River); and (iii) violating the intentions of the parties at the time the
Treatywas negotiated andexecuted.
Section I. Interpretationofthe 1858Treatyof LimitsAccordingto the
Vienna ConventionontheLaw ofTreaties
3.6. The Vienna Conventionon the Law of Treaties ishelpful in resolving at
least the f~st two of the disagreements identifiedin the Introduction to this
chapter:the disputes over (i) whetherCostaRica'sright of fi-eenavigation under
Article VI of the Treaty of Limits refers specifically and exclusively to her
navigation "con objetos de comercio," and (ii) whether navigation "con objetos
de comercio" refers to trade in goods, or whetherit can be extended to cover
performanceof serviceswhere no goodsare involved.
3.7. Nicaragua and CostaRica agree that the 1858 Treaty of Limits must be
interpreted accordingto the principles establishedin Articles 31 and 32 of the
Vienna Convention. Despite this agreement, theyare at odds over the correct
interpretation of the 1858 Treaty. In Nicaragua's submission, this is because
Costa Rica pays lip serviceto the principles of the Vienna Conventionb , ut then
ignoresthem in conjuringan interpretationof the 1858Treaty that departs from
the plain meaning of the text, and contradicts the objects and purposes of the
Treaty.
3.8. The dependence of Costa Rica's "right of free navigation" on her
navigation "con objetos de comercio" is unmistakable, basedon a good faith
interpretation of the ordinary meaning of the language of the first sentence ofArticleVI of the Treatyof Limits. In the Englishtranslationprovidedby Costa
Rica, the "right of fiee navigation" refers directly to a particular kind of
navigation: that which is conducted for the purposes of commerce ("said
navigation" --i.e.,the fiee navigationthat is thesubjectof the right-- "beingfor
the purposes ofcommerce.. .").The ordinarymeaningof this textmakes it plain
that it is Costa Rica's right tonavigation "con objetosde comercio" -- and no
other --that isdeemedfieeunderArticleVI.
3.9. Contraryto this ordinarymeaning,CostaRicapurports to findinthe same
language a right of fiee navigation dissociatedfiom any substantive limit. To
strengthen,even subliminally, the idea that the righo tf fiee navigation existsper
se, autonomous and absolute, CostaRica not only analyses such right in a
separate section of her Reply, different fiom the one which is dedicated to
navigation"con objetosde comerci~"'~~ b,ut distinguishesin an explicitmanner
among the alleged breaches of Costa Rica's right of fiee navigation and the
breaches of her right of navigation "for purposes of commerce"179,and
systematically,throughoutits Reply,bombards thereader with allusionsto the
"rightof fieenavigation" tout courtlsO.
3.10. Since the premises of Costa Rica's reasoning are erroneous, the
consequences deduced from them must be rejected. Costa Rica's right of
navigation over partof the San Juan Riveris not only situated within the
fiamework of Nicaragua's "exclusivedominion and supreme control (sumo
17'CRR, Chap. 3.B. ("A perpetua1Right of Free Navigation7'),Chap.3.C ("con objetos de
comercio'7.
17'CRR, Chap. 4.B (Breachesof Costa Rica's perpetual right of free navigation), Chap. 4.C
(Breachesof CostaRica'srightofnavigation"forpurposesof commerce").
lgIn this sense, for instance,in CRR, paras. 1.27,2.26, 2.27, 2.30, 2.33, 2.39, 2.40, 2.57, 2.68,
2.74(6), 3.79,3.97,3.134,3.148,4.38,4.42,4.50,4.69,4.70,4.71,4.87,5.05,5.255.29.yimperio)" -- overthe waters, but is also limited substantivelyin its exerciseby its
linkageto articlesof tradelpurposesof commerce ("con objetosde comercio '3'*'.
3.11. Thus, Costa Rica has no right of free navigation that is separate or
independent from her navigation "con objetos de comercio." As the text of
Article VI, given its ordinary meaning, makes clear, it is only CostaRica's right
to navigate "con objetos de comercio " that is free. No other navigationby Costa
Rica enjoys this statusunder the ordinarymeaning ofArticleVI.
3.12. Applying the same general rule of interpretation to the second
disagreement between the parties -- over the meaning of "con objetos de
comercio" --the conclusion is inescapablethat the language refers to trade in
goods. If the word "objeto" in the singular may refer indistinctivelyto a matter,
good or thing and, likewise, to a purpose, end or objective, depending on the
context, the word normally does not include thelatter conceptwhen it is used in
the plural form ("objetos"); and it definitely does not include the concept of
"purpose" or "objective" when the plural form ("objetos") is qualified or linked
with the word "comercio". The phrase "con objetosde comercio," therefore can
only mean trade (or commerce)with articles,goods, or commodities;it can never
mean "for purposes." This conclusion is supported by a leading expert on the
Spanish language from the Spanish RoyalAcademy, the publisherof the ofiicial
Dictionary of theSpanishLanguage. According to the Formal Opinionissuedby
Dr. Manuel Seco Reyrnundo,Member of the Royal Academy and Advisor to the
Academy's Instituteof Lexicography since 2000: "My conclusion,consequently,
in view of all of the elements studied,is that, in the text of Article VI of the
Treaty of Limits between CostaRica andNicaragua signed on15April 1858,the
18'NCM,para. 4.1.8ff.phrase 'conobjetosdecomercio'must beunderstood as'with things that areused
in commercialactivity."182
3.13. Moreover,it is beyond dispute that,in 1858,the word "comercio" meant
exclusively tradein goods (as opposedto services);at the time, "con objetos de
comercio" could have only meant"with articlesof trade." Even if CostaRica's
translation of the word "objetos" were accepted, the phrase "con objetos de
comercioJ'would mean "for purposes of trade in goods." In the middle of the
nineteenth century, the concept of "comercio" had not evolved to incorporate
"services." It was exclusively concerned with"goods." Indeedthe expansionof
the original concept would take at least another one hundred years to evolve.
This is demonstrated by contemporaneous dictionaries, and representative
examplesof contemporaneoususage, as well as expert opinion.Thesepoints will
be furtherelaboratedbelow, at paragraphs3.71-3.89.
3.14. CostaRicapretendsto replacethe interpretationof the only authentictext,
whichwas drafted in Spanish,by anEnglish translation madeon the occasionof
the Cleveland Arbitration,which Costa Rica considers moreto her liking. Costa
Rica evenpretends thatthe meaningthat shewishesto give to theexpression "for
purposesof commerce"was sharedby Nicaragua.
3.15. Thetranslationsof the Treaty intothe English language, whichthe parties
provided to President Cleveland (and, in particular,the translation of "con
objetos de comercioJJas "for the purposes of commerce") did not imply an
lg2Formal Opinionof Dr. Manuel SecoReymundo(hereinafter"Seco Opinion"),2 May 2008,
para. 14. NR, Vol. H,Annex 64. (Original Spanish:"Mi conclusi6n,por consiguiente,a la vista
de todos 10sdatos estudiados,es que, en el texto delAmVIudel Tratado de Limites entre
CostaRicay Nicaraguasuscritoel 15deabrilde 1858,elsintagmacon objetosde comerciodebe
entenderse'con cosassobrelas querecaela actividadcomercial'.")acceptance of any particular view on the scope of the right to free navigation;
indeed it was not a point of disagreementbetween theparties, let alone one that
was submitted to the decision of the Arbitrator, or one that he resolved. At the
time of the Treaty, Costa Rica claimed no more than a right to navigate freely
"con objetos de comercio," which Nicaragua accepted, andboth understood that
"comercio" --in 1888as well as in 1858 -- meant "tradein goods." Regardless of
the proper English translation of the word "objetos," there could be only one
meaning for the word "comercio," and that was trade in goods. Notably, the
practice under the Treaty for the next one hundred yearsfollowing the Cleveland
Award confms that the "comercio" referred toin the Treatywas trade in goods.
When Costa Rica made a new interpretation, in the 1990s, and redefined
"comercio" to include services as well as goods, she encountered an immediate
answer by Nicaragua, which expressed the position that Costa Rica's right of
navigation is with articles of trade,.e. tangible goods,and does not include the
performance of services, suchas tourismorpassenger transportlS3.
3.16. As shown in the following section of this chapter,the historical context
confms the interpretation that Nicaraguahas consistently givento Costa Rica's
right of free navigation "con objetos de comercio" under the Treaty of Limits.
The diplomatic documents and draft treaties preceding the 1858 Treaty
demonstrate that the navigation rights under discussion were always for the
purpose of allowing Costa Rica to carry on trade in merchandise, coffee in
particular,half of whoseproductionwas exportedto GreatBritain, at a time when
Costa Rica lacked any ports on the Caribbean Sea.In order to facilitate Costa
Rica's exports to Europe, and avoid the hazardous, long and prohibitively
expensive route around Cape Horn at the southern tip of South America,Costa
183See Note fromNicaraguan Foreign Minister, Ernesto Leal, toaican Foreign Minister,
BerndNiehausQuesada,NoteNo. 940284,21 March1994. CRM,Annexes,Vol.111A , nnex48.Ricarepeatedlyandurgently soughtfiomNicaraguatheright to usethe SanJuan
River asan outlet tothe sea so that she could havea shorterandbetter routefor
her exports toEurope and other Atlanticdestinations. Thus, the conductof the
parties both before andafter the Treaty of Limits was executed consistently
reflects theirunderstanding thatwhat was agreedto in the Treatywas a right of
CostaRicanvesselsto navigate onthe SanJuan River witharticlesoftrade.
3.17. Nicaragua stated in her Counter-Memorial that: "Given that the
application of the General Rule of interpretation offers a perfectly clear and
reasonablemeaningof the ArticleVI of the Caiias-JerezTreaty, recourseto the
supplementarymeans of interpretationmentionedby Article 32 of the Vienna
Conventionof Lawof Treaties is notneeded."lg4Nevertheless, aswill be shown
below, thehistoricalrecord filly conhs the conclusions reachedby Nicaragua
throughapplicationof theGeneralRuleofinterpretation.
3.18. Nicaragua reiterates that, becausthe phrase "con objetosde comercio"
in the Treaty of 1858means"with articles oftrade," recourseto supplementary
means of interpretation is unnecessary. In the event the Court is nonetheless
inclined to turnto supplementary principlesof interpretation, as setforth in
Article 32 of the Vienna Convention, thosetoo confirmthe reading Nicaragua
advocat'es. In particular, the historical contof the 1858 Treaty makes clear
that Costa Rica's navigation rights on the San Juan River are limited to
navigationwitharticlesoftrade.
IgNCM, para.4.1.34.3.19. At paragraph4.1.35 of her Counter-Memorial,Nicaragua observe tdat,
"CostaRica'sother vital nationalaimwas to secureforher
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 hahlfer
production ata time when Costa Rica lacked portson the
Caribbeanand herexportsto Europe hadto head for Cape
Horn. This ... is what theJerez-CaiiasTreaty granted to
CostaRica."
Inother words,thepurposeArticleVIofthe 1858Treaty,which gaveCostaRica
therightto navigatethe SanJuanRiver "conobjetosdecomercio, " wasto give
that Statean Atlantic(Caribbean)outletforher trade with(and,in particular,her
coffeeexportsto)Europe.
3.20. Costa Rica'sReplyis conspicuouslysilentin response. Nowhere among
its 231 pages does the Reply address, much less make any effort to refute,
Nicaragua's characterisationof CostaRica's needsand goals. And for good
reason. As will be further demonstratedbelow,relying largely on CostaRican
sources --many contemporaneouswith the Treaty of 1858 -- Costa Rica's
consuming preoccupation withthe San Juan River in the middle of the lgth
centurywasto gain accessto it as a trade routeto Europe. It is thiskey factthat
definesthe objectandpurposeof CostaRica's navigation rightsunderArticle VI
of the Treatyof 1858.
I. CostaRica'sNeedfor a TradeRouteto theAtlantic
3.21. In orderto fully appreciate the historical context whichled to ArticleVI,
someobservationsabout the developmentof CostaRica's economyin the early
19"centuryarenecessary. Duringthe colonialperiod, CostaRicawas one of thepoorest, most sparsely populated Spanish possessionsin the America~'~~.As
statedin a 1953 study,"CostaRica endedits history as a province of the great
SpanishEmpire in 1821a poverty-strickennation, almost wholly withoutroads
and schools, without a printing press, without any governmentalfunds and
without anyforeign commerce savefor the small exchangesmade by overland
routeswithitsneighbours,Panama and~icara~ua."'~~
3.22. At various moments during the colonial period, Costa Rica had made
efforts to stimulate its languid economy bydeveloping exportable surplusesof
agriculturalproducts. Both cacao (inthe late 17" and 18~centuries)andtobacco
(in the late 18" and early 19" centuries) werethe subjectsof early experiments,
but both effortsmet withonlylimitedsuccess187.Everything changed, however,
withthe coffeeboom in the 1830s.
3.23. Coffeewasinitiallyintroducedto CostaRicainthe late 18" and early19"
Due to the unique suitability of the soil in Costa Rica's central
plateau, coffee growing quicklytook hold. By 1839, coffee had becomethe
country'sleading export;by 1843,it represented some80%of CostaRica'sthen
burgeoning exportsto theworld market; andby 1853,it compriseda full 94%of
totalexports189. ccordingtoCostaRicanhistorianPaulinoGonziilezVillalobos:
lSJorge Lebn Shenz.Evolutionof the Foreign Trade and Maritime Transport of Costa Rica
1821-1900(hereinafter"Evolutionof the ForeignTrade"), San Jod, Editorialde la Universidad
de CostaRica, 1997,p. 11. NR,Vol.11,Annex33.
lSRichard J.Houk."'TheDevelopmentofForeignTradeand Communicationin CostaRicato the
Constructionof the FirstRailway"(hereinafter"DevelopmentofForeignTrade"),(TheAmericas,
Vol. 10,No.2., 1953,Oct., pp.197-209).NR,11Annex30.
'8Evolutionofthe Foreign Trade,op.ci44. NR,Vol.11,Annex33.
DevelopmentofForeign Trade,op.cit.,p. NR,.Vol.11Annex30.
laEvolutionof theForeign Trade,op.cit., p. 53. II,,ex. 33. "During the period of 1836-53, a series of qualitative
changes took place within Costa Rican society that
simultaneouslyincreasedthe need for theroad to Sarapiqui
and generated contradictory processes. Thedetermining
element of these transformations was the dramatic
developmentof coffeecultivation. This processhad begun
in 1832 with exportationto Chile. Years later,it would
acceleratethrough directtrade with Englandand especially
withtheinjectionoffinancialcapitalfrom saidnation.
"The coffee boom forceda rapidprocessof changein land
use within the IntermountainCentral Valley. Subsistence
farming and formerly hegemonicproducts (sugarcane,
tobacco and wheat) werereplaced by coffee, and their
cultivation was marginalized toperipheral zones of the
valley. In th7,190y, a monoculture system was
developed.. .
3.24. The importanceof coffee to the growth of the Costa Ricaneconomy and
the Costa Rican nation cannotbe overstated. The money she made exporting
coffee to the world allowed Costa Ricato lift herself out of poverty and to
transformquickly into oneof therichercountriesin theregion. Writingin 1850,
one of Costa Rica's leading citizens, Don Felipe Molina, capturedthe point
succinctly:"Dedicatedto fanning and trade, [theCosta Rican people]live from
the exportationoftheir
TheInadequacyof Existing TradeRoutes
(a)
3.25. In the 1840sand 50s,CostaRicareliedprincipallyonportsonher Pacific
coast --in particular, atPuntaArenas --for the shipment ofher coffeeand other
exportstotheworld. In anotherwork dated1851,Molinaobserved:
Paulino GonzitlezVillalobos, The SarapiquiRoAtSocio-Political Historyof a Road
(hereinafter"SarapiquiRoute"), , . 3NR, Voi.IIhex 29.
IglFelipe Molina,Report on the Border Questions Raised Between the cf Costa Rica
andtheState of Nicaragua(hereinafter''MolinaReport")p. 22NR, Vol.11,hex 35. "In the Pacific, the Republicof CostaRicapossessesmany
safe and spacious ports, such as: Golfo Dulce, Puerto
IngMs,Las Mantas, Caldera,Punta Arenas, La Culebra,
Santa Elena and Las Salinas. Among them, only Punta
Arenas is currently frequented andhas been outfittedfor
foreigntrade, with theFree Port privilegesgrantedby the
legislature..,7192
Statisticsfromthe late 1840sshowthatmorethan 90%of CostaRica'sexternal
trade waspassingthroughPuntaArenas on thePacific,while less than 10%
passed throughtheCaribbeanport atMatina:
"From 1848to1849,the entryof shipsto the Port of Punta
Arenas increased innumberto 70, witha total of7,188tons
of imports. Ifwe adda similar amountin exportsand 1,200
tons for all trade from Matina [on the Caribbean], we
wouldhavethe sumof 15,571tons, representingmercantile
movementasawhole."193
3.26. The existing Pacific routehad serious disadvantages,however. During
this period, most of Costa Rica's coffee wasbeing exported to the United
Kingdom,withlesseramounts toFrance and other European Yet, as
statedinthe Counter-Memorial,the shipmenf trom PuntaArenasonCostaRica's
Pacific coast necessitated the arduous journey arounC dape Horn at the tip of
SouthAmerica,a voyagewhich tookatleastfivemonths and costa staggering(at
the time)fivepoundsper tonnelg5.An Atlantic outlet for Costa Rica's trade was
the obvioussolution. Yet, in contrastto the Pacificcoast, CostaRica'sAtlantic
coastoffered few suitable sites. Writinagainin 1851,Molinaobserved:
lgFelipeMolina,Studyofthe Republof CostaRica (hereinafier"MolinaStudy"), 1851,p. 36.
NR,Vol.II ,nnex36.
lgIbid.,p32.
'9SeeIbid.,pp. 31-32.
SeeDevelopmentofForeignTrade,op.cit.,p. 20NR,Vol.11,Annex 30. "On the Atlantic side, there is not a single site alongthe
entire coastkomSan Juan, toward the southeast, to the
cove of Veragua, that merits being called a good port,
except for the magnificent bay of Boca Toro. Neither
Matina nor Salt Creek (Moin) offer the necessary
requisites,and this part of the seaboardis currently rarely
fkequented.Only a small amount oftrade in sarsaparilla,
tortoiseshell, coconut oil, etc. etc. is carried out fkom
there."lg6
3.27. The lack of an Atlantic outlet was badlyhampering the growth of the
CostaRicaneconomy. AccordingtoMolina:
"The growthoftradeis paralyzedby theneedto follow the
long and laborious path of Cape Horn, as the several
articles that it would be convenient to export cannot
support the increased charter fees or heavy costs of such
lengthy navigation."lg7
And:
"Coffee, whichis currently theprimary exportitem, has
been qualifiedas excellent, althoughit rarely reachesthe
marketplaces of Europe without having suffered
deteriorationdueto the delays andsetbacks experiencedby
shipmentsin the long anddifficult trip thatmust be made
aroundCape~orn."'~*
3.28. Thesealreadyseriousproblemswere exacerbatedin 1846when theprice
ofcoffeeon theworldmarket droppedprecipitously. AC s ostaRicasubsequently
wrotein itsArgumentto President Clevelandin 1887:
lgMolinaStudyo,pcitp.36-37N.R,Vol.11Annex36.
lgIbidp..32.
lgIbidp..30. "In 1846 CostaRica had to pass through an exceptional
crisis. Coffee,itsprincipalexportproduct,hadexperienced
remarkable depreciationin the foreignmarkets, and could
not stand competition,owingto the high freightthat it had
to pay when carriedby the way of Cape Horn. It was of
vital importance, and worthyof any sacrificewhatever,to
have a passage open to the Northern Sea, that is, the
AtlanticOcean. The old port of Matina couldnot answer
the purpose, owing to insuperable obstacles, and no
recourse was left except makingthe exports through San
Juan delNorte[at the mouthof the SanJuanRi~er]."'~~
(6) TheIdeaof theSanJuanRoute
3.29. Underthe circumstances,the solutionto CostaRica'sproblem seemedto
be to send her coffeeand otherproducts (grownlargely in the centralplateau)
northto the SanJuan Riverby way of one of that river's Costa Ricantributaries.
Onceon the San Juan,the coffee couldbe sentdowntheriver,outto theAtlantic,
andthen onto Europeby wayofthe portof SanJuan delNorte. Incontrastto the
five months requiredfor the journey fromPunta Arenas and around Cape Horn,
thetrip from SanJuan delNortetoEuropetookjust fortydaysby sailingshipand
half that by steamship200.The plan to makeuse of the SanJuan River loomed
large inthemiddleofthe 19"century. Accordingto Molinain 1851 :
"Thereis no doubt that SanJuan [del Norte]is destinedto
be a market of first order, as well as the main point of
departure for trade from CostaRica by mean; of the
~tlantic"~~'.
lgArgumentof CostaRica,op.cit.,p. 4NR, Vol.LIAnnex 5 (emphasisadded).
20SeeDevelopmentofForeign Trade,op.cit.,202. NR, Vol.11,Annex30.
20MolinaStudy,op. cit.,p. 53: NR,V11,Annex 36. 3.30. The idea of makinguse of the San Juan actually extendedback several
decades,at leastto independencein 1821~~'.Several tributariesof the SanJuan
originatingin Costa Rica offeredpossibilities, includingboth the San Carlos and
Sarapiqui Rivers. From the beginning, however, theprimary focuswas onthe
Sarapiqui. On 12 March 1827, the Costa Rican government issued a decree
offering land as a reward for discovering a routeto the San Juan. Several
individualsand companies acceptedthe challengeand began explorationsfor a
route fromSanJosdto the Sarapiqui,but theseearlyprojects wereabandonedfor
a variety of reasons, including a lackof man-power andcapital, aswell as the
unexpectedly inhospitableterrain203. Contemporaneousrecords attest to the
difficulties encountered.According to an account by the French Minister,Felix
Belly:
"From San Jose to this port was ajourney of thirty-six
miles, which had to be covered partly by mule and partly
by rude canoes. M.Belly found the soleoficial was a
captain of the port. He had neither a soldier nor a
subaltern. Helivedin a housewithoutfurniture, onlyhalf
enclosedwith canes, andhe slept in the attic. This official
estimated the weight of goods entering annually at one
hundred tons. As it was not a customs port, he issued
passes for goods, and theduties on them were paidupon
their arrivalinSanJose. Thecapitalwasreached onlyafter
'02See Molina Report, op. cit., p. 2NR, Vol.TI , nnex 35 (Spanish Original: "En tales
circunstanciasocurricique 10shabitantes de Costa-Rica,habiendo descubierto desde 1821la
posibilidadde abriruna comunicacipasta el puerto,por medio delrio Sarapiqui,tributariodel
San Juan, emprendieronhacer, como en efecto hicieron, un camino hacia aquel nunbo, y
comenzarondirigirsucomercioporaquellado...") (Englishtranslat"In:suchcircumstances,it
so occurred thatthe inhabitantsof Costa Rica, having discoveredsince 1821the possibilityof
opening communicationsto theport,by meansofthe SarapiquiRiver, a tributaryofthe SanJuan,
undertookto build, andindeed didbuild, aroadtoward said course,andtheybeganto directtheir
trade thatsid.").
-- -20See zbzd.,pp.27etseq. a long and arduousjourney, forthe road had to be opened
with a macheteflzo4.
After the 1846 coffee crisis,and given Costa &cays continuedreliance on
3.31.
Europeanmarketsfor her coffee,the idea of improvingthe Sarapiquiroute tothe
San Juan received renewed interest. Spurred on by coffee merchants, the
Sarapiqui Company was createdby decree dated 27 October 1851, and it was
ordered to build a road between San Jose and the dock on the Sarapiqui in 18
monthszo5.Again,the lack of labour provedto be a principal obstacle,206 and the
work was abandoned in 1853'07.Even so, obtaining accessto the San Juan asan
outlet forhertrade with Europe remaineda highpriority for CostaRica.
204Development of Foreign Trade, op.cit., p. 202-0NR, Vol. 11,Annex 30. (Incontrast to the
100tonne figure cited, statisticsshow that in 1859,the volume CostaRica's coffee exports alone
totaled5,000tomes.)
205Seeibid., p.67; seealsoCosta Rica, "Basis for the formation of a Company, named the
SarapiquiCompany.. .,"27 October 1851,Art.3. NR, Vol. 11,Annex49.
20SeeSarapiquiRoute, op. cit.p. 70. NR, Vol. 11,Annex 28.
20Seeibid.,p. 71.(c) Negotiations with Nicaragua over the San Juan Riverprior to the 1858
Treaty
3.32. Because Nicaragua was sovereign over both the San Juan River and the
port of San Juan del Norte at the river's mouth, CostacaYsaspirationsfor a SanJuan route necessitatednegotiations with Nicaragua. But those negotiations
proveddifficult. Nicaragua continuedto objectto CostaRica'sannexationofthe
Pacific coastalregionof NicaragualmownalternativelyasNicoyaor Guanacaste
duringthe 1820s,and resistedCostaRica'sattemptsto secure access to the San
Juanforthetrans-shipmentof hertrade.
The earliest negotiationson the subjecttook place in 1838,just as the
3.33.
Costa Rican coffee trade was exploding. The Costa Rican negotiator in these
early talks was Don FranciscoMaria Oreamuno. The confidential negotiating
instructionshe received make clear Costa Rica's driving interestin obtaining
accessto the SanJuan River. Accordingto InstsuctionNo. 17,Oreamunowas to
attemptto securefreenavigationonthe SanJuanfor all import andexportitems.
The instructionsstatethat inthe eventthis proved impossible, CostaRica would
yield on the free import of foreign goods. Inno case, however, would it
compromiseonthe freeexportofhercoffee:
"[Ilf necessary,this covenant shallinclude the prohibition
of introducing foreigngoodsor merchandiseto CostaRica
through the same waterway, in case entered goods could
not be registeredto pay duties at this Statecustoms; anda
fifth, fourth,orthirdofthe annualliquidreturnsin favorof
Nicaraguamaybe agreedupon, providingexportsare done
Nothingcameof these initial effortsto finda compromise.
3.34. With the 1846 coffeecrisis, however CostaRica's need for a low-cost
Atlantic route became acute, and she renewedeffortsto negotiate an agreement
withNicaragua.Asrecountedinher 1887Argumentto PresidentCleveland:
'0Instructions carbyethe specialMinisterappointedto the Governmentof Nicaragua, 1838,
para17.NR, Vol.IIA,nnex7(emphasis added).
117 "Costa Rica decided to make an effort, and seek for a
settlement, which, setting aside interminable discussions,
would enable its Govement to cany into effect the
purpose above referred to [i.e., gaining accessto the San
Juan routeto the Atlantic]. Tothis endit senttoNicaragua
SefioresMadriz and Escalante, with suchinstructions as
proper,to treatwithher
This effortdidyield a treatysignedby theparties' negotiators
"relatedto navigation ofthe SanJuan. Thisstipulatedthat
the Costa Ricans were topay, at the port of San Juan,
warehouse fees, a tax over the tonnage of ships, and a
transit duty of two silverreales (or five reales made of a
copper and silver allow) for every "quintal" of hits
exported, along with four percent of the value of the
merchandise imported"210.
It was,however,subsequentlyrejectedby CostaRica,whichwas unwillingto
paythe agreedcharges.As Molinaput it:
ccSuch treaties must naturallyhave been ratified withinan
instant in Nicaragua, whereasin Costa Rica they were
receivedwith theindignationtheyde~erved"~".
3.35. Undeterred,Costa Ricacontinuedto press aheadwithher plans for aSan
Juanroute, andinMay 1848,she communicatedto Nicaraguh aerintentto opena
route to the SanJuanvia the ~ara~i~ui~~N ~.icaragua respondedby threateningto
breakties if CostaRicapressed ahead withouta prior agreement213.Molinawas
209Argumentof CostaRica,op.cit.,p47.NR, Vol.IIAnnex5.
MolinaReport,op. cit.,p. NR, Vol.II,Annex35.
21Ibid.,p. 31.
212
SeeSarapiquiRoute,op.cit.,p. 59. NR, Vol.11,Annex28.
213Seeibid., pp.59-60. sent to discuss both the route and, more generally, the two States7 territorial
disputes, but again nothing came of these efforts214. Nicaragua insisted on
retaining control of the river route while Costa bca continued to press for an
outlet for her trade to the Atlantic215.Throughout these discussions, Nicaragua
(in addition to insisting on the return ofNicoya/Guanacaste)refused to recognize
Costa Rica's right to navigate on the San Juan, and attempted to levy duties on
the transport of Costa &can goods216.
3.36. In his 1850recordings of these dealings, Molina made clear Costa Rica7s
rising hstration, made worse by what sheperceived as the "vital need" for a San
Juan route. He wrote:
"Transit by the San Juan had become a vital need for the
Costa Ricans, so the uncivil opposition intimated by
Nicaragua was the same as condemning [Costa Rica] to a
certain decline in her trade and wealth"217.
As he saw it:
'"icaraguan gave Costa Rica] this hard alternative: either
renounce Guanacasteor renouncethe Sarapiquiand the San
Juan. These conditions are equally inadmissible because,
on the one hand, in Guanacaste Costa Rica possesses a
significant population, extensive farms and a growing
number of cattle;whereas on the other hand,the mentioned
rivers are the two main arteries for the country's circulation
to the
214See ibid.,p. 60.
215See ibid.
216See ibid.,pp. 60-61.
I MolinaReport, op. cit.,p. 32. NR, Vol. 11,Annex 35.
I
218Ibid., p. 36.3.37. Nicaragua's claim to GuanacasteNicoya is shown in the map of
Nicaragua published in 1855, which is reproduced following this page. The
sketch map below compares the claim depicted on the 1855 map with the
boundary that resulted fromthe 1858Treatyof Limits.
3.38. Costa Rica and Nicaragua resumed their efforts to negotiate a treaty in
1854. Meetings were held between diplomatic representatives of the two States
between 10January and 17February 1854."Protocols," or official minutes of the
meetingswere signedby the two heads of delegation. The Protocol of the meeting Map 1
Iheld on 10 January 1854states that the purposeof the discussionwas to address
"the issue of territorial limits pending between the two countries (arreglar o
trnnsigirla cuestidnde limitesterritorialespendientes entre10sd~s~aises)."~~~
3.39. Underdiscussionwasthe establishmentof a boundaryrunningparallel to,
but several "leagues" south of, the San Juan River (leaving Nicaragua with the
right bank of the river as well as the left) all the way to the Atlantic Ocean.
Nicaragua's sovereigntyover the San Juan would be subject, however, to the
concession to Costa Rica, either in a formal Treaty of Limits or a Treaty of
Friendshipand Commerce,of "see transitby the river andport of 'SanJuan,' for
the import and export tradeby the citizensof CostaRica.. .(el trdfico librepor el
rio y puerto de 'SunJuan,'para el comerciode importacidny exportacidn de10s
hijos de Costa Rica.. .).'y22As earlier, it was Costa Rica's objective in these
negotiationsto secure forherselfthe rightto use the SanJuan River asa route for
her exportsto the Atlanticandbeyond.
3.40. To this same end, CostaRica insisted insubsequent meetings andwritten
communicationsthat it shouldbe "wellunderstood thatthe waters of the riverand
port of 'San Juan'and of the Lake shouldbe free at all times for the importation
and exportation traffic of Costa Rica...(bien entendido que las aguas del rio y
puerto de 'SunJuan 'y la delLago debenser libresen todotiempopara el trdfico
de importacidn y exportacidnde CostaRica.. .)12'CostaRica's fmalproposalto
219Protocolofthe conferenceof 10January 185NR, Vol.IIA,nnex 8.
220Ibid.
221Protocol ofthe conferenceof9February1854NR, Vol.11,Annex9.Nicaragua, communicatedin a Memorandumdated 13 February 1854,insisted
that: "The waters of the river and the Port of San Juan will be free to the
importationand exportationtrafficof CostaRica, withoutat anytime such trade
being subjectto any lcindoftaxation.(Serhnlibrespara el Wco de importacidn
y exportacidn de CostaRica las aguasdel rio y Puerto de San Juan, sin que en
tiempoalgunoseagravadoelcomercioconningunaclasede iinpuesto)."222
3.41. For various reasons indicatedin the Protocols and the exchanges of
correspondencebetween the parties,thenegotiationsfailedandno treatyoflimits
was agreed.What is importantfor present purposes is the continuingcentralityof
Costa Rica's objectiveof obtainingfrom Nicaragua a guaranteedright to freely
use the San Juan Riverand the port of San Juan del Norte as an outlet for her
importandexport trade.
3.42. Shortly after the failed treaty negotiations, civil unrest toolc hold in
Nicaragua,creatinganopportunityfortheAmericanfilibusterer,WilliamWalker,
and his mercenariesto invade. In October 1855, they capturedthe capital of
Granadaand seizedcontrolof the country. Walker's historyin Central America
is notorious, as described in Nicaragua's counter-.Memorial223. It need not be
revisited here. The important point isthat when Walker attempted further
conquests in CentralAmerica, a combined force of Nicaraguan, Costa Rican,
Guatemalan, Salvadoranand Honduran soldiers dislodged him from power in
May 1857.
222Memorandumfrom Costa Rica, dated 13 February 1854, mentionin the protocol of the
conferenceof 17FebruaryNR, Vol.11,Annex10.
22See NCM,paras. 1.2.35,eseq.3.43. Upon conclusion of the hostilitieswith Walker's forcesin May 1857,
Costa Rica's army was the most powerful in Central America. Her forces
occupied all strategic positionson both sides of the San Juan River. Theywere
thus in a positionto controlall navigationon the river224.CostaRica seizedthe
moment to renew discussionsover both NicoyaJGuanacasteand navigational
rights on the San Juan. The negotiationsresulted in the July 1857Juhrez-Cafias
treaty in which Nicaragua expressly renounced her claim to
~ico~a/~uanacaste~~~T . he treatyrecognisedNicaragua'sdomain over the San
JuanRiver,althoughthe fif trticleprovidedthatthe
"Republic ofCostaRica, as well as the one of Nicaragua,
will have free use of the waters ofthe SanJuan River,for
navigation andtransportationof articlesof trade of import
and export ...7,226
224See"Message ofthe Presidentof the Republicof Nicaragua, Juan Rafael Mora Porrast,o the
Congress,6 September1857",GazetteofEl Salvador,Cojutepeque,7 October 18NR, Vol.11,
Annex 11. ("Greatandinfinitewerethe difficultiesofall types that facedthe Government,but all
havingbeen surpassedby afirmand decidedwill, I raisedthe voice of alarm yet againand was
answered unanimously byallpeoples.I ordereda column ofbravemento marchto theworldof a
general ofknownexperience, tofight theenemyonthe fieldof honor, as demonstrated gallantly
in the area of Rivas. Convincedthat our effortsand thoseof our allies wouldbe made in vain
unlesswe attackedthe filibustererat the sourceofhis greatresourcesandtroops-that is, unless
we strippedhim of the fortsand steamerswithwhich he dominatedthe San JuanRiver andLake
Nicaragua,by meansof which hismen, armsand supplieswould arriveevery fifteendays on a
scale much greater thanours and even greater thanthat of all CentralAmerica- I orderedthe
riskymaneuverof surprisingthe enemyatthesepoints.
Godprotected ourobjectivesand ourefforts, and within very few daytshe national flag fluttered
overthe fortsonthe river,at PuntadeCastillaandon the beautiful LakeNicaragua.")
225
SeeJuarez- CafiasTreaty,6 July 1857. CRM,Vol. 11,Annex5. ("First:The Governmentof
Nicaragua, asa signof gratitudeforthe Governmentof CostaRica, forits goodofficesonbehalf
of the Republic, for the soliddeterminationan great sacrificesmade for the cause of national
independence,waives, takes and puts away everyright on the Districtof Guanacaste, whichis
now called theProvince of Moraciaof the Republicof Costa Rica,to be understood, held,and
acknowledged,from now and forever, asan integral part of said Republic, underthe sovereign
jurisdiction of saidGovernment.")
226Ibid.3.44. The 1857 Juarez-Caiiastreaty wasultimately rejected byCostaRica for
reasons,and in circumstances,that are amplydescribedin Nicaragua's Counter-
Memorial (at paragraphs 1.2.41through 1.2.47). It is sufficienthere merelyto
reiterate that Costa Ricadecidedthat it mightbe more advantageousto pressher
apparent military advantage and expand her territory at Nicaragua's expense,
rather than accept a Treaty. Nevertheless, the 1857 treaty is a fwther
manifestation of the constantin the historical record: Costa Rica's abiding
interest in the San Juan River asa trade route, especially for her exports to
Europe. The record shows that this was the driving force behindthe right of
navigation"con objetosde comercio"that parties enshrinedin Article VI of the
Treatyof 1858.
3.45. In her Reply,Costa Ricatalcesissuewith Nicaragua'sargumentthat the
fifh articleof the 1857 Juarez-Caiiastreatyhas anybearing on the interpretation
of the phrase "con objetos de comercio" in Article VI of the Treaty of 1858.
CostaRica suggests --albeitwithoutactuallyarguingthatthiswasthe casehere -
-that "if oneparty failstoratifyatreaty, onemaypresume thatitwas dissatisfied
and wanted a new text having a meaning dzflerentfrom that of the previous
unratifiedone."227CostaRica'sintimation hasno supportin the record. Indeed,
quitethe contrary.
3.46. First, it should be noted that Nicaragua's argument is not merelythat
ArticleVI of the Treatyof 1858shouldbe read in lightof the fifth article ofthe
1857 Juarez-Caiias Treaty.Thepoint is much broaderthan that. As stated,the
1857 Juarez-CaEiastreaty is but one fwther link in a long chain of evidence,
22CRR,para.2.54.consistentwiththe entirecorpus of thehistoricalrecord,demonstratingthat Costa
Rica'sdrivingaspirationwithrespectto the San Juanwas to secureaccessto it as
a trade route forher goods. As such,it is not just the fifth articleof the 1857
Juarez-CafiasTreaty, standingalone,that shedslight on the phrase "con objetos
de comercio"in the Treatyof 1858,butratherit is the historical contexttakenas
a whole,includingthe 1857Treaty,that reveals the objectandpurposeof Article
VI ofthe 1858Treaty.
3.47. Moreover, even with respect to the narrowquestionof the interpretation
of the 1857 treaty versusthe Treaty of 1858,history shows that CostaRica's
bargaining position, especially with respect to the San Juan, had weakened
considerablybetween thetimeof the unratifiedJuarez-CafiasTreatyin July 1857
and the Treaty of 1858 somenine monthslater. In the interveningtime, Costa
Rican soldiers had unexpectedly been dislodged from their positions on the
Nicaraguan sideof the San Juan. Costa Rica was thus nolonger in defacto
controlof theriver228.This factwasdulynotedby a keenlyinterestedWilliamC.
Jones, Special Agent ofthe United States to Nicaragua and CostaRica, in a
January 1858report to Washington,wherehe observed that Nicaragua was now
"in a better situationthan before"in terms ofher negotiation position vis-B-vis
CostaRi~a~~'.
3.48. In addition, as discussed at paragraphs 1.2.41through 1.2.46 of the
Counter-Memorial,the United States had made her interests in the region
228See''NotefiomWilliamCarey Jones,SpecialAgentoftheUnitedStatesofAmericato Central
America,to Lewis Cass, Secretaryof State of the United States," 30January 1858,(Diplomatic
Correspondenceof the UnitedStates: Inter-AmericanAffairs 1831-1860, editedbyR.illiam
Manning, Washington:Carnegie Endowment for International P, 934,pp. 647-657NR,
Vol.TIAnnex13.
22Ibid.abundantly cleardwing this period. She repeatedly informedCosta Rica that
Washington would not countenance Costa Rica's bid for territorial
aggrandizementat Nicaragua'sexpense. The United Stateslikewisemade plain
her position that fullsovereigntyof the SanJuan was to remainwithNicaragua,
and Nicaragua alone. In his July 1857instructions toMr. Jones,the American
Secretary of State, Lewis Cass, statedflatly: "[Ylou will make knownto the
authoritiesof CostaRica the confidentexpectationof the United States,that the
possessionof the territory,overwhichthe line ofcommunication passes[i.e.,the
SanJuan],will beleftto~icaragua."~~'Mr.Jones did asinstructedandconveyed
themessageto CostaRica. Accordingto his 2 November1857letterto Secretary
Cass:
"[Als early as June last the Government of Costa Rica
refusedto deliverthe fortressof 'Castilla[sic] Viejo' and
refused alsoto confirma Treaty of limits with Nicaragua
which givesto CostaRicathe freepassageof theRiverSan
Juan for her importations& exportationsquite as much as
accordingto my instructions agrees withthe views of the
department. I have thereforenot hesitatedto malceknown
to the authoritiesof this Stateand by such means as have
been in my power to the Governmentof Costa Rica & to
the authoritiesofthe otherStatesof Central Americathat it
was the oppinion [sic] of the United States that the
Jurisdictionof the entire Transit route oughtto be sole&
not dividedandthat that Jurisdiction ought to remainwith
the State (,9231yNicaragua) to which it had previously
belonged. .
23'CNot&omLewis Cass,Secretaryof Stateofthe United State,to WilliamCareyJones, Special
Agent of the United Statesto CentralAmerica,"30 July 1857. NCM, Annexes, Vol.11,Annex
21, p. 98.
23"Note from William Carey Jones, Special Atf the United States of Americato Central
America,to Lewis Cass, Secretaryof State of the UnitedStates,"2 November 1857,(Diplomatic
Correspondenceof the United States:Inter-AmericanAflairs 1831-1860, editedbyR.illiam
Manning, Washington:Camegie Endowmentfor InternationalPeace, 1934,p. 624) (emphasis
added).NR,Vol.11,Annex12.3.49. It is interestingto note, in the f~st of the two italicized phrases cited
above,the recognition that the"free passageof the River San Juan" in the 1857
Treaty wasfor CostaRica's "importations & exportations." SpecialAgent Jones
delivered this pointedmessage --includingthe U.S. position that Nicaragua was
to have sole jurisdiction over the rive-- to CostaRica through the person of
CostaRican GeneralJosCM. Caiias, the very same man who had negotiated the
1857 treatyon behalf of Costa Ricaand who wouldsubsequentlynegotiatethe
1858Treaty,as
2. Article YIofthe1858TreatyinItsHistorical Context
3.50. Consistentwith the historical factpresentedjust above, thetext ofArticle
VI of the Treaty of 1858makes clearthat CostaRica's navigationalrights should,
if anything, beinterpretedmore narrowlythan therights shewouldhave enjoyed
had she ratified the 1857treaty, notmore broadly as CostaRica might like to
suggest. For instance,the languageof the 1857 Juarez-Caiias Treaty providing
that theSan JuanRiver constitutesNicaraguan territory(articlesecond)isworded
rather generically, and statesmerelythat the borderbetween thetwo States shall
be the southernbank of the SanJuan River. In contrast, ArticlVI of the 1858
Treaty of Limits is notably more emphatic. It states: 'Wicaraguashall have
exclusive dominionand supreme control(sumo imperio) over the San Juan
River."
3.51. Similarly, the Treaty of 1858 articulatesCostabca's navigational rights
in a very differentwaythan the unratified1857treaty.'In the 1857Juarez-Cafias
Treaty, CostaRica's navigationalrightsnot onlyreceivestand-alonetreatmentin
23Seeibid. the fiftharticlethereof,theyarepresented as co-equalto Nicaragua's rights("The
Republic of CostaRica, as well as the one of Nicaragua,will have free use ..."
etc.). ArticlVI ofthe Treatyof 1858,ontheother hand,is wordedsoasto make
-
Costa Rica'snavigational rightsan express andlimited exceptionto Nicaragua's
Wicaragua shall have exclusive dominion
otherwise unqualified sovereignty:
and supreme control (sumo imperio)of the waters of the San Juan Riverbut the
Republic of Costa Rica shall have perpetualrights of free navigation .. [con
objetos de comercio.]" These, of course, are very different linguistic
formulationsand compela narrower interpretationof Costa Rica's rightsunder
the Treaty of 1858 thanunder the 1857 Treaty. It thereforecannotbe true that
CostaRicaacquiredbroader navigationar lightsunderthe Treatyof 1858than she
did under the 1857 Treaty. Underboth treaties, CostaRica's rights extend no
fwther than navigationwith articlesoftrade.
3.52. The languageof ArticleVI further confirmsthat the parties' purposein
giving Costa Ricathe right to navigatethe San Juan "con objetosde comercioJJ
was to afford herthe Atlantic tradeoutlet shehad longsought. ArticleVI states,
for example,that Costa Rica shall havethe right to navigate theSan Juan "con
objetos de comercio" either withNicaragua or with theinterior of Costa Rica,
throughthe SanCarlosriver,the Sarapiqui, or any otherwayproceeding fromthe
portion of the bank of the San Juanriver,which is hereby declaredto belong to
CostaRi~a."~~~ Giventhe historical antecedents discussed above t,hese specific
referencesto the Sarapiquiand San Carlosrivers are telling. They are obvious
manifestations of Costa Rica's long-standing interestin making use of these
watercourses as trade routes.As such,they constituteunmistakableconnections
233"Costa Rica-Nicaragua Treatyof Limits (Caiias-J15April 1858,"ArticleVI. CRM,
Annexes, Vol.IIA,nnex7@),p. 50.As willbe discussedlaterin the text,thistranslation, taken
fromCostaRica'sApplicatiois notpreciselycorrinseveral important respects.
129between the specific text of Article VI and the historical context. Costa Rica's
objective, which became an object and purpose ofArticle VI, was to secure a
way, whether bythe Sarapiqui,the SanCarlos or someother tributaryof the San
Juan, to get her coffe--her dominantarticle of trade-- to the Europeanmarket
as expeditiouslyaspossible.
3. Early Practice of theParties underthe Treatyof 1858
(a) TheFate ofthe SarapiquUSanJuan TradeRoute
3.53. It is ironic that soon after the Treaty of 1858 hadbeen concluded and
Costa Rica achievedher longstandingobjective ofgaining accessto the San Juan
to transport her exports to European markets, her interest in the San Juan
diminished sharply. Indeed, as a trade route, the San Juan became all but
irrelevant to Costa Rica -- within just two years of the Treaty's execution.
Several causeswere at play. The firstwas the completion ofthe trans-isthmian
railroad acrossPanama in 1855. By 1860, CostaRican merchantswere shipping
their goodsvia the Pacificto Panama, and relying onthe railroadto get the goods
to the Atlantic. As a consequence, they hadless interest in using the more
difficultlandroute to the Sarapiqui Riverandthen tothe San~uan~~~ R.eflecting
the decreased importanceof the SarapiquiISanJuan route, CostaRica's customs
post on theSarapiquiwas closedin July 1860~~~.
23See SarapiquiRoute,ocit., p.73. NR,VII.,nnex28.
23See Decree closingMoin and SarapiquiPorts, CostaRica, 24 July1860,Art.2. NR, Vol. 11,
Annex50(Original Spanish:"Quedan suprimidaslasAduanasde ambospuntos [PuertosdeMoin
y Rio Sarapiqui]").3.54. A second reason diminishing the importanceof the formerly"vital need"
for an Atlantic outletvia the San Juan was the construction of a railroad across
Costa Rica herself,from SanJoseto Lim6non CostaRica'sAtlanticcoast. The
project, on which construction beganin 1871 and concludedin 1890~~~ g,ave
Costa Rica a wholly domesticsolution to her problem that involved neither
shipmentto a foreign country (Panama)n , or relianceon a neighbow:with whom
relationswerenot alwayssmooth(Nicaragua).
3.55. The Costa Rican railroad wasbuilt in stages and actually began service
fromthe coffee-producingCentralValley to LimcinontheAtlanticcoastin 1882,
some eight years before completion of the entireroute237.In these early years,
goods were transported in stagesa ,lternativelybyroad from SanJoseto Carrillo,
and then by rail from Carrilloto Limcinon the ~tlantic~~~.Once the railroad
came into usein the early 1880s,the importanceof the port of PuntaArenas on
the Pacific diminished, as CostaRica at long last had her prizedoutlet to the
Atlantic for her trade239.By 1886, just five years after the railroad came into
operation,and still four years beforethe entire linewas completed,Limcinhad
surpassedPunta Arenas in importance, andby 1907fully 90% of Costa Rica's
foreigntradewaspassing throughtheportof ~imcin~".
3.56. Yet another factorcontributingto Costa Rica's abandonmentof the San
Juan as a trade routewasthe substantial change in the geography atthe mouthof
23SeeEvolutionoftheForeign Trade,op. cp..167.NR, Vol.11,Annex33.
23Seeibid.
23See J.A. RodriguezBolafio& V. G. Borge Carvajal, TheRailroad to the Atlanticin Costa
Rica, 1979p.6.NR, Vol.11,Annex38.
23Seeibid.,p. 1.
24SeeEvolutionofthe ForeignTrade,op.cit.,Table p.170. NR, Vol.IIA,nnex33.the river. As early as the 1860s,the diversionof much ofthe flow of the San
Juan intothe ColoradoRiver drasticallyreduced thevolumeof water flowingto
the lowerreachesof the SanJuan,renderingtheriver substantiallyless navigable
thanithadbeen previously241T. he siltcarried downthe SanJuanalsoalteredthe
geographyatthe mouth ofriverinthe vicinityoftheport of SanJuandelNorteto
such anextentthattheriverbecame allbut inaccessible&omthe sea, except only
forthesmallestboatsz4'.
3.57. As a result of all three developments -- the completionof the Panama
railroad, the constructionof the Costa Ricanrailroad, and the changesto the
geographyof the San Juan --the SarapiquUSan Juanroutewas all but abandoned
as an outletforCostaRica'sforeigntrade. CostaRican merchants stoppedusing
the San Juan to transport their goods to the Atlantic coast andbeyond. It is
precisely these facts thataccountforthe dearthof information suppliedby Costa
Rica concerning her pertinent practicesbetween 1858and the 1990s. The
Applicant State's pleadings areremarkablefor the scant informationprovided
aboutheruse oftheriverduringthis130-yearperiod.
3.58. In this respect, it is conspicuous that CostRica nowhere alleges, much
less provides any evidence,that she actuallymade use of the San Juan for any
trade-relatedpurposes.Forthe 130yearssubsequent tothe Treatyof 1858,Costa
Rica provides nothing becausethere was nothing. Put simply, there wasno
practice ofnavigating "con objetosde comercio" because Costa Rica wasnot
usingthe SanJuan as a traderoute. It was onlywhen tourism wasinitiated --in
the early 1990s--that CostaRica actuallyattemptedto exploitthe SanJuanRiver.
24See DavidI.FolkmanJr.,TheNicaraguaRoute,1976,pp. 115-NR,Vol. 11,Annex28.
24See ibid.This use of the river will be discussed belowin greater detail, in ChaptIV,
Section11.
(b) The Two Treatiesof 1868
3.59. Although,forthereasonsdiscussed,CostaRica losther interestinthe San
Juanas atraderoute intheyears subsequentto theTreatyof 1858,thereis atleast
one occasionon whichthe parties returnedto the issue. Theydid soin awaythat
confms yet again the extentto which the object and purposeof Costa Rica's
navigation right on the San Juan River under ArticleVI of the Treaty was to
affordher anoutlet for her tradein goods.
3.60. In particular, inJuly 1868,severalyears before constructionof the Costa
Ricanrailroadbegan, Nicaragua andCostaRica enteredinto apreliminary treaty
concerning the improvementof either (a) the port of San Juan del Norte in
Nicaragua, or (b)Bocadel Colorado atthe mouthof the ColoradoRiverin Costa
Rica. As discussed, the diversionof the flow of the SanJuan into theColorado
renderedthe lower reachesofthe SanJuanlargelyimpassableto merchanttraffic,
and the mouth of the river inaccessibleto the sea. Given this, Costa Ricaand
Nicaragua agreedto conductajoint investigationto determinewhichof San Juan
del Norte or Boca del Colorado was a better port site, and to conduct
improvementsatthe chosenlocation.
3.61. Pursuantto the 1868 treaty, CostaRica and Nicaragua carried outthe
stated siteinvestigationandjointly concludedthatthebetter sitewasn Juandel
Norte. Subsequently,they adopteda follow-onconvention dated21 December
1868which, readas a whole,confmed that whatever interestCostaRicabad inthe San Juanwas as an outletfor her foreigntrade. The treatyis worth citing in
extensosothat Courtmayappreciatethepointforitself
"ArticleI1
The Government of Nicaragua, onits part, commits to
stipulate,in the event that any transit contractis entered
into, whetherwith nationalsor foreigners, that the.freight
rates establishedby Nicaraguafor imported or exported
products or merchandiseshall also extend to Costa Rica,
and any grace, privilege or cohesion obtained by
Nicaragua,as far astransportation on theSanJuanRiveris
concerned,shallextendto CostaRicaonan equal footing.
ArticleIII
Vessels.fromCosta Rica, which arrive at the San Juandel
Norte port, shallnot pay anydutieswhich are not charged
tothe nationalvesselsofNicaragua.
ArticleIV
In the event that SanJuan ceasesto be a freeport, andthe
Government of Nicaragua subjects to registration or
taxation themerchandise which is imported or theproducts
which are exported through it, themerchandise and
products imported or exportedby Costa Rica shall be
exempt .fromsuchformalitiesandfromthe payment of any
duties.
ArticleV
If in the previous case, it were to occur that the
Government of Nicaragua,as a result of any internal
disorder or because it finds itself at war, could not
efficiently protectthe San Juan port, the Governmentof
CostaRica is grantedthe right to send thenecessary force
to the aforesaidporttoprotectthe [interestsof comercio] of
Costa Rica, and the Government ofNicaragua shall not
concur in the costofthisprovision.'"243
243"Convention BetweenNicaraguaand Costa Rica, Supplementhe Conventionof July 13'
21December 1868.NR,eVol.11,Annex 1.mentof the Colorado orSan JuanRivers &was-Esquivel)",3.62. As the Courtwill appreciate,the treaty makes clearthat, as far as the San
Juan River and port of San Juan del Norte were concerned,Costa Rica's
"interests of commerce"' weredefined just as hernavigation "con objetos de
comercio " had been defmed in the 1858 Treaty; that is, by her "merchandise
which is imported or the products whichare exported". Thus, Article 2 is
designedto ensure that Costa Rica paysno greatertariffs on imports and exports
shipped onthe San Juanthan Nicaraguaherself. Similarly,Article 4 guarantees
that CostaRicanimportsandexports at theportof SanJuan delNortewillremain
kee regardlessof whether ornot the portas a wholeremains afreeport. Indeed,
Article 5 evengives CostaRica the right to sendher militaryto the port of San
Juan delNorte toprotecther "interestsof 'comercio"'in the eventthat Nicaragua
is unableto do so. There canbe no disputethat in 1868,as in 1858,Costa Rica
continuedto view the SanJuan asan outlet, albeit a lessimportant one, for her
"comercio," meaning her importandexportof goods.
(c) CostaRica 'sWrittenSubmissionstoPresident Cleveland
3.63. Notably, CostaRicaherself admittedthat hernavigation rightson the San
Juan were limitedto the transportationof trade goods in her briefs to President
Clevelandin 1887. TheadmissionappearsintheportionofCostaRica'sopening
submissionto the AmericanPresident that addressesthe questionof whether or
not CostaRicahad the rightto navigateon the SanJuan withvesselsof war. At
the beginningof her argument,CostaRica first quotes the relevantpassages of
ArticleVI of the Treatyof 1858givinghertherightof navigation"conobjetosde
comercio." Shethen proceedstopose the revealingrhetoricalquestion:
"Does this mean that Costa Rica cannot under any
circumstances navigate with publicvessels in the said
waters, whetherthe saidvesselisproperlyaman-of-war,or simply a revenue cutter, or any other vessel intendedto
prevent smuggling,or to carry orders tothe authoritiesof
the bordering districts,or for any otherpurposenot exactly
withinthemeaningoftransportationofmerchandise?"244
3.64. Thereupon, Costa Rica naturallyproceeds toargue that theanswerto her
own rhetorical question must be "no" (a conclusion with which President
Cleveland very muchdid not agree). What is telling for present purposes,
however, is that Costa Rica expresslyequated her navigational rights "con
objetos de comercio" under Article VI of the Treaty of 1858 to the
"transportation of merchandise."
(4 TheAlexanderAwardof 1897
3.65. The arbitral award of 30 September 1897,issued by General E.P.
Alexander, confirmedthat the Treatyof 1858gave Costa Rica the rightof free
navigation on the San JuanRiver "con objetos de comercio"so that she would
have an Atlanticoutletforher importand exportof goods. In fact,AwardNo. 1
by GeneralAlexander isdecisive on this issue. The Court will recall thatby
treaty dated 27 May 1896 Costa Rica and Nicaraguaagreed to submit to an
arbitrator(to be chosenby the Presidentof the United States)any disputes that
might arise in the work of the boundary commissions from both States then
taskedwith defeg preciselythe locationof the boundary betwethem245.
3.66. The firstquestionpresentedto General Alexander concerned the starting
point of the boundaryat the mouth of the San Juan River. After receiving
24Argumentof CostaRica,op. cit.,p.NR,Vol.IIAnnex5 (emphasis added).
24SeeNCM,para. 1.3.38;NCM,fn.96.extensive argumentationfrom the parties, he issued his ruling. Although
Nicaragua quotedthe decisionin paragraph2.1.44of her Counter-Memorial,the
Arbitrator'swords are worth revisiting herefor reasonsthat will immediatelybe
obviousto theCourt. He stated:
"[Olf these considerationsthe principal,andthe controlling
one, is that we are to interpret and giveeffectto the treaty
of April 15, 1858, in the way in which it was mutually
understoodat the time,by its makers. .. It is the meaning
of the men who framedthe treaty which we are to seek,
rather than some possible meaning whichcan be forced
upon isolatedwordsor sentences. Andthis meaningof the
menseemsto meabundantlyplainandobvious.
[Flromthe general considerationof the treaty asa whole,
the schemeofcompromisestands out clear and simple.
Costa Rica was to have as a boundary line the right, or
southeast,bank of the river, consideredas an outlet for
commerce,fromapoint 3 milesbelowCastillotothe sea."
Nicaragua wasto have her prizedsumoimperio [emphasis
in original] of all the waters of this same outlet for
commerce,alsounbroken to the sea."246
3.67. As indicated inthe firstparagraphofthe quotedtext, GeneralAlexander's
understandingof the parties' intent very much informedhis decisionas to the
boundary'sstartingpoint. The difficulty identiQingthispointhad arisenbecause
the San Juan spreadout into a delta comprisedof three differentbranches before
reachingthe sea. Thearbitrator ultimately rejecteda boundaryfollowingone of
the two other branches precisely because neither was a viable trade outlet. He
stated:"[Theboundary] cannot followeither of them,for neither isan outletfor
1897,inthe boundaryquestion, betweenCosta Rica and Nicaraguayy.Annexes, Vol.11,30,
Annex 18,p. 107(emphasisadded).commerce, as neither has a harbor at its mouth. It must follow the remaining
branch,the one calledtheLower SanJuan, throughits harborandintothe sea."247
For General Alexander, the boundarybetween Nicaragua andCosta Rica could
only be the branch of the river that "is an outletfor commerce"with "a harbor at
its mouth," because only that boundaryfulfilledthe purpose of Article VI of the
1858Treaty,which wasto provideCosta Rica with"an outlet forcommerce."
3.68. General Alexander similarly resolved a dispute concerning title to an
island located near the mouth of the San Juan by reference to the object and
purpose of ArticleVI. The precise question concerned anisland thatwould have
been connectedto CostaRicaby a sandbar atthe timeofyear the Treatyof 1858
was signed,which was at the end of thdry season. Thearbitrator found thatthe
presence of the sand bar during thedry season did not alter the course of the
boundaryalongCosta'sRicaysright bank, stating: '"I]twouldbe unreasonableto
supposethat such temporary connection couldoperateto change permanently the
geographiccharacter andpoliticalownership of theisland. The sameprinciple,if
allowed, wouldgive to Costa Rica every islandin the river to which sand bars
from her shore had made out during the dry season. But throughoutthe treaty,
theriver is treated and regarded aan outletfor commerce. This implies that it
is to be consideredas in average conditionof water, in which condition, alone,it
isnavigable.'"'*
* * *
3.69. For all thesereasons,it is clearthat the intent of Nicaragua andCostaRica
in 1858 was to afford Costa Rica the Atlantic outlet for her exportsand imports
24Ibid(.mphasisadded).
24Ibid ..108(emphasis added).that shelong desired. It is equallyclear,however,that theneedforthis outlethad
allbut evaporated soon aftertheinlchad driedonthe TreatyofLimits. Dueto the
constructionofrailroads across Central America in both Panamaand later Costa
Rica herself,as wellasto morphological changesin the lower SanJuanarea,the
SanJuan routebecame unimportantto CostaRica, andso it remained --until the
last decadeofthe 2othcentury, whenthe CostaRicantouristboats firstundertook
regularvoyagestotheriver,asfurtherelaboratedin Chapter IV.
4. "Comercio"as Understoodin 1858MeantTradein Goods
3.70. ThatthelpartiesintendedCostaRicato havethe right touse the SanJuan
as a traderouteforher goodsis stillfurtherconfmed by the factthat,as statedat
paragraph4.3.19of the Counter-Memorial,the term"comercio"asunderstoodin
1858embraced onlythetrafficincommodities.It didnot includebroader notions
which todaymaybe included withinthe meaningof the term"comrnerce."Thus,
the right theparties to the 1858Treaty gave to Costa Rica to navigate the San
JuanWer "conobjetos de comercio"was a right touse the river as a route for
her exportand import of goods. Inher Reply Costa Rica contends simplythat
Nicaragua's positionis unjustified249.Yet, aswill be shown below, Nicaragua's
position is amply supportedby multiple sources,many of them Costa Rican.
Contemporaneous dictionaries, contemporaneous histories prepared by Costa
Rican oacials, the pleadings of Costa Rica before President Cleveland and
official translations of other period treaties all show that"comercio," as
understoodby the parties in1858,encompassedonlytrade in goods;in the rnid-
nineteenth century,theterm didnot extendto services.
24SeeCRR, para.3.74.(a) ContemporaneousDictionaryDefinitions
3.71. Perhaps the best starting place for ascertaining the scope of the term
cccomercio"in 1858 is with the edition of the Dictionary of the Spanish Royal
Academy current to the Treaty of 1858. In the 1852 edition, the primary
definition of "comercio" is given as follows: "Business and trafficking that is
done by buying, selling or exchanging some things for others (Negociacidny
trhfico que se hace comprando, vendiendo d permutando unas cosas con
ot~as).'~~~ Thetermthus plainly embracedthe exchangeof physical objects.
3.72. Although theEnglish translation that perhaps mostnaturally springs to
mind for "comercio" is "commerce," in fact (and consistent with the above
definitionfrom the SpanishRoyal Academy),it canbe and was equallytranslated
as "trade." Period dictionariesconfm the point. Indeed,it is interestingto note
that the primary translation listed for "comercio" is typically "trade," with
"commerce" appearing only secondarily.The Spanishtranslationfor the English
"trade" is "c~mercio."~~'In the 1858edition ofADictionary of the Spanishand
250Royal SpanishAcademy,Dictionaryofthe CastilianLanguage,Tenthedition,1852. NR,Vol.
11,Annex59. [Excerpt: "Thegrammaticalevidenceis impressive.Thefirstmeaningof commerce
givenby the dictionaryof the SpanishRoyalAcademyof 1803is: 'Negotiationandtraffic which
is madebuying, selling,or exchanging some things for othersamemeaningis repeatedin
the editions of 1817, 1822, 1832,1837, 1843, 1852,applicable atthe date of signatureof the
Cafias-JerezTreaty, and then, in the editionsof 1869, 1884, 1899 andsuccessive editions until
todaywheretheword commercecontinuesto be, in the firstplace, 'Negotiationis made by
buying or selling or exchanginggeormerchandises.' (Foonotesmitted).]
251TheNew PocketDictionary,of the SpanishandEnglishLanguages,1809. NR, Vol.11,Annex
58.EnglishLanguages,"comercio"is translatedas "[tiradecommerce,"and"trade"
is translatedas "comer~io,"~~~
(b) ContemporaneousUsages
3.73. Thefact that theterm"comercio JJasused andunderstoodinthemiddleof
the 19thcentury embracedthe trafficin goods, andwas translatable intoEnglish
as "trade," is amplyconfirmedby numerousCostaRican sources from thetime.
For example,the contemporaneoustranslation of Felipe Molina's 1850 work
"Memoiron theBoundaryQuestion Pending Between the RepublicofCostaRica
andthe Stateof Nicaragua"containsan English translationof the February 1796
royal decreefirst establishingthe port of San Juan delNorte, about which so
muchhasbeenwritten:
"His Majesty, being desirous that the province of
Nicaragua and the other provinces of the lcingdom of
Guatemala, which are situated more than three hundred
leagues distance from the capital, and from the ports of
Omoa and Santo Tomas de Castilla, may be enabled to
carry on a direct trade ("comercio") with the mother
country, without beingsubject to the inconveniencesof a
long distance,hasbeenpleasedto declarethat theharborof
SanJuan deNicaragua,on the riverofthe samename,shall
be aportofthe secondclass"253.
3.74. Similarly,in 1851,CostaRica andtheUnitedStatesof Americaentereda
Treatyof Friendship,Commerce andNavigation. Althoughthe term"comercio"
appears throughout the treatyin Spanish, it appears variously inthe English
25MarianoVelkquez de la Cadena,A Dictionaly of the SpanishandEnglishLanguages,1858,
pp.106and805.NR, Vol.11,Annex 60.
253Felipe Molina, Memoir on the Boundary Question Pending Bthe Republic of Costa
Rica and the StateofNicaragua, 1851,ppNR,Vol.IIA,nnex37 (emphasis added).languageversion as either "commerce" or "trade."254To exactly the same effect
is the Treaty of Friendship, Commerce andNavigation betweenCosta Rica and
the United Kingdom ratified in 1850. It is interesting to note further that the
subjectof these treaties of "commerce"/"comercio"was very much the reciprocal
trade in goods -- underscoring the effective equivalence among "comercio",
"trade" and"commerce"in the mid-19thcenturylexicon.
3.75. Once again, the work of Molina is particularly helpful. In his 1851
"Study of the Republic of Costa Rica", he devotesa sectionto the "comercio" of
CostaRica. It begins:
"This is carried outmainly withEngland,on English ships.
Almost all products &omthe countryend up in the United
Kingdom, in exchange for English manufactured goods,
which to date make up the greatest part of consumption.
Nevertheless, thereis a French firm that receives three or
four expeditions each year,and theFrench goodsarehighly
esteemed."255
3.76. Molina goes on to discuss points already highlightedin the preceding
sectionof this chapter; namely (1) that thegrowthof Costa Rica's "comercio" is
paralyzed by the need to travel around Cape Horn, and(2) that the majorityof
Costa Rica's "comercio" was enteringand exiting throughPunta Arenas on the
Pacific coast. It is thus clear thatcomercio" as understood atthe time meant
trade in goods.
254"Treaty ofFriendship,Commerce,andNavigation, betweenthe United Statesof America and
theRepublicof CostaRica," 10July 1851. CRR,Annexes, IIl,nnex 9.
255MolinaStudy,op.citpp. 31-32NR, Vol.11,Annex36.3.77. Additionalconfirmationof this fact can be found in the provisionsof the
August 1868Treatyof "comercio"between Nicaragua and Costa Ri~a~'~.As its
title indicates, this brief treaty dealsentirely with the subject of "comercio"
betweenthe two States, and is thusof interest forreasonsthat areobvious. The
termsof thetreatymakeclear that"comercio"meanttradein goods. Thisshines
through in the very first sentence of Article I which states: "There shall be
between the Republics of Costa Rica and Nicaragua a reciprocal freedom of
comercioin all the goodsthat are notprohibitedby their respectivelaws.(Habrd
entre las Repziblicasde Costa Rica y Nicaragua una reclrprocalibertad de
comerciocon todos los articulosnoprohibidos por sus respectivasleyes)." By
itself, and withoutmore, this one line shows in the clearest possibleway that
"comercio " was somethingone didwith goods.
3.78. The remaining provisions of the 1868 Treaty of "comercio" are
consistent, and likewise make clear that "comercio" meant trade in goods.
Although Nicaragua invitesthe Court to read the treaty inits entirety, just one
other quotation should sufficetoprovethepoint. Article 2states:
"[Ilt is therefore declared and established, regarding their
particularand ownproducts: that the imports and exports
that aremade .firom one point to theother,eitherby sea of
land, of the goodsor natural or industrial products natural
to the sender'scountryshall not pay rights or taxesof any
kind..."257
256"Costa Rica-Nicaragua,Treaty of Commerce(Volio-Zelaya),San Josb," 14 August 1868.
CRM,Annexes, Vol.11,Annex10,p. 73.
257Ibid. (Original Spanish: "[Sle deylestablece, respecto de sus particulares ypropias
producciones;quelasimportacionesy exportacionessehagandeuno ziotropunto,ya seapor
mar 6 por tierra, de 10sarticulos6 productosnatu6industriales,propios delpais que 10s
remite,nopagarzinderechosni impuestodeningunaclase.")AlthoughNicaraguahesitatesto belabourthe obvious,this provisionagain makes
abundantly clear that the "comercio" that was the subject of the treaty was the
traffic in "importsand exports" of "naturalor industrialarticlesor products";that
is, tradein goods.
(c) TheFull TextofArticle yI Makes Clear That "Comercio" Means Trade
in Goods
3.79. Based onthe contemporaneous understanding andread in proper context,
it is clear that the term "comercio" as used in Article VI of the Treaty of 1858
meant trade in goods, and trade in goods only. Although the text of ArticleVI
has now been cited many times byboth parties, it is worth reviewing againwith
this pointinmind. In pertinentpart,it states:
"... the Republic of Costa Rica shall have the perpetual
right of free navigationon the said waters,between the said
mouth [of the San Juan Riverland the point, three English
miles distant from Castillo Viejo, ["con objetos de
comercio"] either with Nicaragua or with the interior of
CostaRica ..."
Although Costa Rica has focused extensively on the phrase "con objetos de
cornercio," she has given no attention to the language immediatelyfollowing,
which states that the "comercio" will either be "with Nicaragua or with the
interiorof CostaRica". The limitationis importantbecause, as explainedbelow,
it only makes sense if the "comercio" referred to in ArticlVI is understood as
tradein goods.
3.80. Before proceeding further,it must be stated that CostaRica's translation
of ArticleVI (takenfrom CostaRica'sApplication),althoughbroadly accurate,isnot entirely correct. The original Spanishprovides that Costa Ricawill have the
right of free navigation "desde la expresada desembocadura [del rio San Jw
hasta tres millas inglesas antes de llegar a1 Castillo Viejo, con objetos de
comercio,ya sea con Nicaragua d a1interior de Costa ~ica."~~* More precisely
rendered, this shouldreadthat CostaRicahas the right to navigate"from the said
mouth [ofthe San JuanRiver]to three miles before arriving at the CastilloViejo,
[con objetos de comercio], whetherit be with Nicaragua or to the interior of
Costa Rica."
3.81. These differences,althoughsubtle, are significantfor at leasttworeasons.
First,the fact that ArticlVI gives CostaRica the right to navigate "con objetos
de comercio", "whether it be with Nicaragua or to the interior of Costa Rica"
underscores the fact that the parties to the Treaty of 1858 understoodthat, by
definition, "comercio" under Article VI came in just two varieties (i) with
Nicaragua (including,of course,the port of San Juan delNorte) or (ii) to Costa
Rica's interior. So understood,it becomes clear that, in context, the term can
only mean "trade." Trade canbe "withNicaragua;" trade can also travel"from"
the mouth of the San Juan "to the interior of Costa Rica." On the other hand,
these limitationsmake little senseif the "comercio" referencedwas intendedto
confer on Costa Rica some broadly defined right to navigate the San Juan for
purposes beyondthe tradein goods. With regardto that period, convnerce"with
Nicaragua" couldonlymeantradein goods. Thesame istrue for "comercio""to
the interiorof CostaRica".
3.82. The use of the terms"from" ("desde") the mouthof the SanJuan and "to"
("a") the interiorof CostaRica have a directional component, and highlight the
25Costa Rica- Nicaragua Treatyof Limits (Cafias-Jdrez),15 April 1858.CRM, Vol.11,Annex
7(a).fact that the parties very much had in mind "comercioJ'moving between
locations outside and inside Costa Rica--i.e., foreign trad--exactly as the
history recountedabove wouldsuggest.
3.83. The fact that the "comercioJJeferred to in the text of ArtVIlemeans
trade in goods is still further underscored by the section of Costa Rica's
Argument to President Cleveland highlightedabove, at paragraphs 3.63-3.64 in
which Costa Rica specifically linksher right to navigate on the San Juan "con
objetos de comercioJJwith the "transportationof merchandise." Here again, we
have an obvious equation of the "comercioJJ of Article VI with trade in
merchandise.
3.84. Viewed in the historical and linguistic context citedabove, it is clear that
the parties to the Treaty of 1858understood "comercioJo include only trade in
goods,not broader, modemconceptionsof commercethat sweepup virtually any
form of economicactivity. So seen,the significanceof the parties' disputeover
the meaning of the term"objetos"largely vanishes. Even if--quodnon --that
word couldbear the heavy load Costa Rica attempts to impose onit, and it could
be construed to mean "objectives" or "purposes" rather than being limited to
physical "objects," the fimdamental meaning of the phrase "con objetos de
comercioJJ is just the same. Under Costa Rica's reading, ArtiVIewould give
her the right to navigate the lower San Juan "for purposes of trade." Under
Nicaragua's reading, on the other hand,ArticleVI would give Costa Rica the
right to navigate the lower San Juan"with objects of trade." As the Court will
appreciate, there is no meaningful difference betweenthe two.In either case,
CostaRica'snavigationrights are limitedto the trade ingoods.(4 TheNineteenth CenturyTreatiesand DocumentsCited by Costa Rica in
the Reply
3.85. Costa Ricatries to overwhelm theCourt with a long table ofdocuments
fkom the nineteenth century in which she alleges the word "objetos" means
"purposes."z59Accordingto Costa Rica,the table includes provisions froman
"impressive number of relevant treaties, contracts and other instruments
contemporary with the Treaty of Limits in which the term 'objetos' was
73,260
overwhelminglyused as meaning'purposes. However,the great majority --
sixty out of seventy-six -- of the provisions quoted, taken fkom thm-one
documents, donot speak of"objetos"but "objeto," andthereforedo not sustain
Costa Rica's pretension, because Nicaragua does notquestion the different
meaningsthat the word "objeto"may have in its singularform, but onlyrejects
the meaningthat CostaRica pretendsto giveto the word "objetos" in plural, in
particular when those objects arqualifiedby thewords"de c~mercio.'~~~'
3.86. To correctly interpretthe phrase "con objetosde comercio"as it appears
in ArticleVI of the Treaty of Limits, Nicaragua consultedone of the leading
experts on Spanish vocabulary andgrammarfkomthe Spanish RoyalAcademy
(Academia Real Espafiol), Dr. Manuel Seco Reymundo, whoseimpressive
curriculumis appendedto his Formal Opinion(in Volume IIof this Rejoinder,
Annex 64. In his Formal Opinion,Dr. Seco explains that the Spanish word
''objeto" is susceptible of two different meanings, each of which could
correspondto theEnglishword "object."Accordingto Dr.Seco, ''objeto" -- in its
25See "Table 1: Use of the term 'objetos'meaning 'purposes' in 19thCentury documents".
CRR, pp.99-126.
26CRR,p. 62,para.3.60.
26Seeibid.singularform --could meaneither a tangible"object" or anintangible"objective"
or "purpose." However, in its plural form ("objetos") the word only refers to
tangible "objects," and not to "objectives" or "purposes." As statedby Dr. Seco,
whose analysis of the topic included a review ofthe Table incorporated in Costa
Rica'sReply:
"A simplereview of the CostaRica Table allowsfor a first
general observation: use of the singular objeto is much
more abundant than the plural objetos. Second, when it
appears, it is mostly found in the sense of 'purpose or
objective,' particularly in virtually lexicalized
constructions, such as the prepositional phrase, con el
objeto de (sometimes in variations, such as con objetode,
con el imico objeto de and para el objeto de), or the
adverbialphrase, con este objeto (andits variations, contal
objeto, con eseobjeto, con el objeto expresado, para este
objeto,andpara el dichoobjeto) - constructionsthat do not
existin the languagefortheplural form."262
3.87. In addition to the documents identifiedin the Tablepresented by Costa
Rica in the Reply,Dr. Seco examinedother examplesof contemporaneous usage
of the relevantlanguagedictionariesof theperiod and other authoritativesources.
He statedhis conclusion thusly:
"(...) Consequently, based onall the information studied,
my conclusion is that, in the text of Article VI of the
Border Treatybetween CostaRicaandNicaraguasigned on
April 15, 1858, the phrase conobjetos de comercioshould
be understoodas 'withthingson which commercialactivity
falls.n263
262SecoOpinion,op. cit.,paras. NR,.Vol. 11,Annex64.
26Bid., para 14.3.88. As indicated, only 16 of the 76 references to "objeto" or "objetos"
providedby CostaRicainher Tableusethe pluralformof the word, whichis the
form used in the Treaty of Limits. BesidesDr. Seco's Formal Opinion,which
rehtes Costa Rica's attemptto interpret"objetos de comercio" as "purposes of
trade,"there are stillother reasonswhyher Tableis unimpressive.First,in ten of
those 16 references the expression "objetos" is not accompanied by the
expression"de ~ornercio."~~S ~econd,four oftheremainingsix examplesrefer to
the right of the citizens of the parties to "alquilar y ocupar casas y almacenes
para 10sobjetosdesu comercio"(hireandoccupyhousesandwarehousesfor the
"objetos" of their "comercio ") in which "objetos" can only mean goods or
articles, since '"purposes" and "objectives" cannot be stored in houses or
warehouses265.Third, thetwo remaining examplesare those of the very Article
VI of the 1858 Treaty, and the Cleveland Award, whoseinterpretationis at the
centreof the controversy inthis case266.Sowhat CostaRica demonstratesisjust
the oppositeof whatshe pretends. "Objetosde comercio"are only goodsin the
2GSee"Table 1:Use oftheterm 'objetosmeaning"purposes"in 19thCenturydocuments'.CRR,
pp. 99-126: Doc.3 (art. 37, at p. 101),7 (arts. 3 and 7, at p. 106), 10 (p.tlog), 11
(preamble, atp. 1lo), 14(arts. I andVII, at p. 112),15(arXIX,Iat.P. 113),and28 (para.
V,atp. 123).
265~eiebid. CRR,pp. 99-126:Doc. 6 (art.11,at p. 105),9 (art.11,at p. 107),12(art.11,at p. 111)
and 16(art. 11,at p. 11Intwo of the nineteenth century treatiesbetween theUnited Statesof
America andNicaragua(Cass-Irisarri,of 16 November 1857, andLamar-Zeledbn,of 16 March
1859),there is a commonArticle I1which translates"arobjetosde su comercio" as "for the
purpose(s)of their commerce;"(CRR,pp. 60-62,para. 3.55-3.59) accordingto Costa Ricathese
expose"the fallacy of Nicaragua's arguments...by referenceto instruments contemporaryto the
1858Treaty of Limits." (CRR,p. 60, para. 3.55) But CostaRica's confidence inthese treaties,
which werenever ratified, is misplaced. Theprovisionon which Costa Rica reliesis actually a
model provisioncommonto all U.S.-Nicaraguatreaties of the period,,which date backto and
were copied directly fromthe Treaty of Amity, Commerce andNavigation, of 10 July 1851,
whoseArticle11provided:that the citizensand subjects ofboth countrieshad the freedomto let
and occupyhousesand warehouses';Dara10sobjetosde su comercio."(CRR, pp. 4-5,para 1.10-
1.1I) Thus,the "objetosde comercio"were quite obviouslythe goods that theybought andsold
and, logically, depositedand savedin houses and warehouses. Ordoes Costa Rica suggest that
purposes and objectivescanbe storedinwarehouses?
2GSeeibid. CRR, pp. 99-126:Doc. 10 (art.6,atp. 108),Doc.28 (para.Segundo,atp.123).nineteenth century; they are not ccobjectives"or "purposes." Costa Rica cannot
present even a singledocumentto supporta different conclusion.
3.89. Costa Rica enlarges her Reply with a second table on the terms used to
refer to articlesof trade,goods or thingsin nineteenth century documents267.This
is even less helpful to her cause than the first table. The second table only
demonstratesthe richness of the language used when referring, within the ambit
of commercial traffic, to mercancias, mercaderias, articulos, cosas, productos,
bienes, jixtos, efectos, materiales, gkneros,producciones, manufacturas and, of
course, objetos,which are translated into English asmerchandise,articles, things,
products, goods, wares,effects, stock, items, materials, manufacture, andobjects.
It is curious, andworthy of notice, that onlywhen CostaRicaherselfprovides the
English translation of the term "objetos" --in four cases (numbers 2, 13, 17 and
22) -- does it turnout to be "objects," while in the other three cases included in
her list, where the translation of "objetos" is provided by an independent,
contemporaneous source, the English word chosen is "things" (number 23),
"goods" (number 25) or "articles" (number 26). Nicaragua's conclusion is
thereby fhther reinforced; in the nineteenth century "objetosde comercio" could
onlybe tangible goods268.
267See"Table2: Termsto referto articlesof trade, goods, thing19&Century documents".
CRR,pp. 127-151.
See Letter from Neil Johnstone, Directorof the Language Services and Documentation
Divisionof the WTOto Alicia Martin, PermanenteRepresentatiof the Republicof Nicaragua
before the Office of the United Nations, 12October 2006NR, Vol. 11,Annex 63 (stating
"althoughthe Organizationhas not found documentsin its possessionin which the expression
'objetosde comercio' appearst,he DivisioncanneverthelessindicateEnglish expressioas,such
'articlesof trade' and 'wares',which havebeen translated intoSpanish as'objetosde comercio'
(for instance,in documentsWT/DS/236/R,WT/DS/257RandWT/DS/257ABR)."). SectionII. TheTreaty DoesNot EmpowerCostaRicaToPerform
PassengerOrOther Services,Nor DoesIt RaveAnEvolutionary Character
3.90. Thefacttheparties intendedto limit CostaRica'snavigationalright to the
transportof trade goodsis still furtherconfirmedby the fact that, historically, it
was Nicaragua --and only Nicaragua --that ever authorized passengertraffic on
the SanJuan River. If the partieshad intended togive the term "comercioJ Jhe
broad sweepthat CostaRicanowcontends --i.e.if theyhadmeantalsoto include
servicessuchas the transportofpassengers ortourists --one wouldexpectto see
evidence in the record that Costa Rica had authorized such transportation
I,
sometime afterthe Treaty of 1858 and before the current dispute over tourism
erupted in the 1990s. There is, however,no such evidence, which further
highlightsthe limitednatureofCostaRica'srightunderArticle VI.
3.91. The facts on this score are not in dispute. As stated in the Counter-
Memorial at paragraphs 1.3.9through 1.3.22 (concerningthe pre-1858period)
and4.1.37to4.1.45(concerningtheperiodthereafter),thetransportofpassengers
throughthe SanJuan --themostlucrativebusiness atthe time the Treatyof 1858
was executed -- was authorizedby Nicaragua alone. Nicaragua identified no
fewer than eight conventions,treaties or contracts relating to that subject,
including:
c the 1849 contract withthe American Atlantic and Pacific
ShipCanal Company;
0 the 1851White-Charnorro-Mayorga CanalConvention;
the 1857Irisarri-StebbinsContract;
the 1857Cass-Irisarri Treaty; 0 the 1860Zeledcin-RosaPdrezConvention;
the 1863Molina -Morriscontract;
the 1877PellasContract; and
0 the 1887Cardenas-MenocalContract.
3.92. InherReply,CostaRicaneitherdisputes nor takesissuewithNicaragua's
characterizationof any ofthese facts. They may thereforebe taken as admitted.
CostaRica confinesherselfto a threeparagraph response contending:(1)thatthe
Treaty of 1858 does notuse express language to excludethe transport of
passengers; (2) that Nicaragua was carefulnot to deny Costa Rica's rightto
transport personson the San Juan;and (3)Nicaragua's exclusive exerciseof the
privilegeof grantingconcessionsover inter-oceanictransit "bears no relation" to
Costa Rica's rights under Article~1~~'. None of these arguments disproves
Nicaragua's point.
3.93. With respect toCostakca's f~stargument, itis Nicaragua's position that
the wording of Article VI, which ties Costa Rica's freedom of navigation to
navigation with "articles of trade" doesi ,n fact, expressly excludepassenger
transportation. Even accepting Costa Rica's (incorrect)argument that "con
objetos de comercio" means "for purposes of trade", the fact remains that the
transport of passengers (and certainlyof tourists)is beyondthe limits ofthe term
"comercio" as the term was understood in 1858. As demonstrated above,
"comercioJJwas understoodin the mid-nineteenth century toembrace only trade
in goods. Contraryto CostaRica's assertion(atparagraph3.76of herReply)that
269CRR,paras.3.76 -3.78."thereis nothingintherecordthat supportsthenotionthatthis [i.e.,the exclusion
of passengertransport] wasthe intentionof the parties," the truth is very much
the opposite. Accordingto multipleCostaRicanhistoricalsources,the intention
of thepartieswas plainlylimitedto affordingCostaRica anAtlanticoutletforher
export and import trade. By the admission of her own negotiator at the time,
Costa Rica's motivating "vital need" was to get her exports to the European
market more quickly, not to send tourists down the river on sightseeing
excursions. There isno evidencethat Costa Ricasoughtaccessto the San Juan
for the transport of tourists orother passengers;and there is no evidencethat
before or after the 1858 Treatywas executed, for at least the next 130 years,
Costa Rica issued any licenses or other official authorizations of passenger
servicesontheriver.
3.94. To supporther second argument(thatNicaragua"wascareful"notto deny
Costa Rica's right to transport "persons and property"), the Reply cites
Nicaragua's treaties of friendship, commerce andnavigation with the United
States, Franceand Great Britain in 1857, 1859and 1860, respectively. The
treaties contain a substantially identical provision towardthe end of each that
provides that"nothing contained in this treaty shallbe construed to affect the
claim of the government andcitizens of the Republic of Costa Rica to a free
passage by the San Juan River for their persons and propertyto and fromthe
ocean."270These provisions cannotbe construed as an endorsementof Costa
Rica's "right" to transport passengerson the San Juan. First, none of these
treaties purportsto or could modifythe plain provisionsof the Treaty of 1858.
Second, the treaties subsequentto 1858all appear to have imported wholesale
exactlythe samelanguagefromthe earliesttreatyasa modelprovision. Theytoo
27E.g.,CRR,Vol. 11,Annex10(U.S.).shed little lighton the meaning of the Treaty of 1858.Third,it is noteworthythat
the provisions refer to Costa Rica's "claim" not "right." This is hardly a
recognitionof an entitlementonthe part of CostaRica. Fourth,andfinally, given
the contextof these treaties,all of which werevery much trade-relatedtreaties,it
is most logical to interpret the phrase "persons and property" appearing in them
as embracing Costa Rican merchants and crews together with their articles of
trade,not passengers travelling downtheriver on sightseeingexpeditionsor other
non-trade related missions. The fact that these treaties are Costa Rica's only
"evidence" of Nicaragua's non-denial of her "right" to transport passengers on
the San Juan proves onlythe weaknessof her argument. Costa Rica is unable to
present a singledocument, letter, note, orstatementby Nicaragua --pre- or post-
dating the 1858 Treaty -- in which Nicaragua acknowledges, accepts or
acquiescesin an allegedright of Costa Ricato transportor authorizethe transport
of passengers. All ofNicaragua'sstatements on thesubjectareto the contrary.
3.95. Costa Rica's thirdargument (namely,that Nicaragua's exclusive granting
of concessions for inter-oceanic transiton the San Juan "bears no relation" to
Costa Rica's rights under Article VI) is also flawed. The point is that the
undisputed evidenceshowsthatNicaraguahasbeen andis the onlyparty granting
authorizationsfor the transportation of passengers on the San Juan River. No
evidencehas been submittedby Costa Rica to show that she ever authorizedthe
transportationof passengers (or,indeed, any otherservice activitythat mightnow
be associated with more modernnotions of "commerce")on the San Juan at any
time between 1858and the outbreak of the currentdispute in recent years. That
there is no such evidence further confms that the scope of Costa Rica's
navigationrightsis limitedto thetransportofgoods.3.96. CostaRica argues that,even if the partiesin 1858didnot contemplatethat
"objetos de comercio"might include passengersandlortourists,the Court should
give the phrase an evolutionary interpretation of the notion and content of
"commerce," which now (more than a century later) includes not onlygoodsbut
also services, such as tourism271.Nicaragua believes that such an assertion is
void of any foundation because it finds no support in the express or implied
intention of the parties, eitherin 1858or subsequent thereto;nor is it possible to
deduce such an understanding from the practice followed by the parties in their
applicationof the Treaty, orto reconcileit with the object and purposeof Article
VI of the Treaty, which, as shown,was to afford CostaRica a trade route for her
exportand importofgoods.
3.97. It bears repeating thatthe 1858Treaty is a treaty of territoriallimits. Such
was the name givenby the drafters. Such is its nature. Its contents correspondto
that nature. It is not a treaty of decolonization, nor is its subject matter the
protection of human rights orthe environment. Ina treaty concerningterritorial
sovereignty,thejurisprudence affirms that limitationsto the State's sovereignty,
in case of doubt, shall be interpreted narrowly. This principle has already been
discussed in Chapter11,at paragraphs2.22-2.35 and2.110-2.113.
3.98. Treatiesof limits,like the 1858Treaty, enjoy specialstability,for obvious
reasons: opening them to an "evolutionary" interpretation undermines the
permanence of established boundaries and encouragesconflicts that may result
27See e.gCRMparas.4.66-4.72;CRRparas. 2.43-2.49.
155from unstable borders. Courts and arbitral tribunalshave been sensitive to this
problem. Thus, it has been decided that a concession awarded in a State's
maritime jurisdiction does not generate rights in the continental shelf, afterthe
Statehas extended hermaritimejurisdiction into this area, becauseit may notbe
presumed that the sovereign intended her initial concession to have an
evolutionarycharacter272.The samepoint is illustratedby the fact that, when a
State limits the areas subject to her jurisdiction whichmay be the subject of
dispute resolution, the limitationextendsto the subsequently-claimedcontinental
shelf273. AS more fully discussed in Chapter 11,at paragraphs 2.56-2.57, the
common thread in these cases is that care must be taken to avoid evolutionary
treaty interpretations that result inlimiting or diminishingthe sovereignty of a
State. For all the reasons statedin this chapter,there is no room for doubt that
Costa Rica's navigation right under Article VI of the Treaty ofLimits is limited
to navigation with articles of trade. However, since Costa Rica disputes that
interpretation, any doubt that she might have succeededin raising about the
meaning of Article VI must be resolved with due regard for Nicaragua's
sovereignty, and in a manner that, to the fullest extent possible, avoids
diminishingit.
3.99. The conclusionis as obvious asit is inevitable. Even if Article VI of the
1858 Treaty created for Costa Rica a right of navigation "for purposes of
commerce," the commercial purposes would bedefined by the concept of
commerce in force at the time of conclusion of the Treaty, and therefore, they
would be limited to the trade of merchandise, goods,products, and articles, i.e.
272See Arbitral Award, Petroleum DevelopmentLtd.v. Sheik of Abu Dhabi, 28 Aug. 1951,
InternationalLegalMaterials, 1951,p. 144.
273See Judgments, AegeanSea Continental Shelf,19 Dee. 1978,ICJ Reports, 1978, p. 32;
discussedinNCM,paras.4.3.10 -4.3.19.tangiblethings, excludinga sector,that of services, whichwas only much later,
afterthepassageof morethana century, understoodto comewithinthe def&tion
ofcccornmerce." TWEREASONABLENESSOFN ATIONOF
NAVIGATIONON T
4.1. Costa Rica alleges that Nicaragua has denied and breached herright to
navigate on the San Juan River "con objetosde comercio." Nicaragua submits,
and the evidence confirms,that she has never deniedor breached thisright. As
will be shownbelow, CostaRica has submittedno evidence whatsoever that
Nicaragua everdenied,limited orinterferedwith her navigationon the San Juan
River related to the trade in goods. TOthe contrary,the evidence shows that
Nicaragua has alwaysrespected this right. Nor has Nicaragua prevented Costa
Rica from navigatingon the river forpurposesoftourism or passenger transpor-
- although, by virtue of her exclusive dominionand supreme control (sumo
imperio) over the river shehas the right to prevent these services from being
perlbrmed. Rather, in the exercise of her sovereign discretion,Nicaragua has
expressly authorized navigationby Costa Rica for these purposes, subjectto
reasonable regulationsspecifically crafted to protect Nicaragua's legitimate
sovereigninterests,especially her interestsin navigationalsafety,environmental
protection, law enforcementandborder security274.
4.2. CostaRica objectsto Nicaragua's exercise of her regulatorypowers over
navigation on the San Juan River, even though theseregulations are applied
without discriminationto all vessels, including Nicaraguanvessels. Costa Rica
asserts that her"right of free navigation" necessarily impliesshe is exempt
fromregulationby Nicaragua, regardlessof Nicaragua'sacknowledged statusas
sovereign over the river, and notwithstanding the reasonableness or even-
27Nicaragua has permitted tourismby CostaRicanvesselsas a gestureof goodneighbourliness,
but expresslyreservesherto opposethis practiceinthe future.
159handedness ofNicaragua's regulations. This chapterwill demonstratethe laco kf
merit to Costa Rica's assertions, and both the right of Nicaragua toregulate
navigation on the San Juan River, and the reasonablenessof the regulations
Nicaraguahas implemented in furtheranceof herlegitimatesovereigninterests.
Section I. CostaRica'sNavigationon the Riveris Subjectto Reasonable
Regulationby Nicaragua
4.3. As demonstrated inChapter111t ,he objectandpurposeof accordingCosta
Rica the right of free navigation on the lower San Juan "con objetos de
comercio" was to give her the Atlantic trade outlet that she consideredso
essential in the middleof the 19~century. As such, and especially given the
limited scope of the term "comercio" prevailing at the time,it is clear that the
makers of the Treatyof 1858didnot intendto convey toCosta Rica theright to
navigatetheriverforpurposesother than trade ingoods.
4.4. Even if Nicaraguais wrong aboutthis, however,it does not follow that
Costa Rica has an unbridled rightto navigate the SanJuan for all commercial
purposes such as transit of passengers or tourists, without having to submit to
regulationsof any kind. Nicaragua has demonstrated in the Counter-Memorial
and again in Chapter I1 of this Rejoinder, thatthe mere presence ofthe term
"free"in ArticleVI of the Treatyof 1858cannot bear the heavy load Costa Rica
attemptsto place on it275.In particular,given theTreaty's expressrecognition of
Nicaragua's"exclusivedominionand supremecontrol(sumoimperio)"over the
river, she must retain the power to impose reasonableregulations that are
necessarytoprotecther legitimatesovereigninterests inthe SanJuan.
27SeeNCM, paras.4.1.-4.1.48.4.5. Not only is there nothing inconsistent betweenthis sensible conclusion
andthe useoftheterm"free"inArticle VI, it actuallyfollowsinevitablyfromthe
fact that this same article leaves to Nicaragua--and Nicaragua alone --the
"exclusive dominion and supreme control(sumoimperio)"overthe waters ofthe
SanJuan. If CostaRicawere correctthatNicaragua is barredf?omexertingany
regulatory controlof any kind over Costa Rican commercialtraffic, the effect
wouldbe to createa lawless zone in whichCostaRican commercial vessels could
operate with impunity. Takento itslogicalconclusion,for example,CostaRica's
argument woulddictate thatNicaraguan authorities would have no choice butto
stand idly by even as a Costa Rican commercial shippolluted the river and
wantonly flouted Nicaraguan environmental laws designedto protect the
exquisite natural beauty and endangeredaquatic speciesof the San Juan (about
which morewillbe saidbelow). Suchapatently absurdresultcannot stand.
4.6. The law,fortunately, is otherwise.As demonstratedin Chapter 11,Section
I, at paragraphs2.58-2.81, a right of free navigation on the river or lakes of
anotherStatedoes notdeprivethe sovereignof its inherent authority toregulate
that navigationin conformitywith its own legitimateinterests, provided such
regulation is reasonable, fair, and non-discriminatory. As shown below,
Nicaragua's regulationofnavigationonthe SanJuanRiver meetsthattest.
Section 11. TheEvidence Regarding CostaRica'sExerciseof herRightof
Navigation bbCoa Objetos de Comercio,"andNicaragua's Non-Interference
withthat Right
4.7. CostaRica'smitten pleadings --both her Memorialand her Reply -- are
remarkablefor how little they say about her actual navigationon the river '%on
objetos decomercio" between 1858 andthe early 1990s.This can hardlybe an
oversight. Tothe contrary,it is reflectiveof the evidence that:for the first 130years after the Treaty of Limitswas executedthere was very little Costa Rican
commercialnavigationon the river; it was all local in nature; and it consisted
entirelyof trade ingoods between Costa Rican riparianhamlets andthe interior
of the country,and to a lesser extentbetweenthosehamletsand the Nicaraguan
townof SanJuandelNorte,located atthe mouthofthe SanJuan River.
4.8. As explainedabove,at paragraphs3.21-3.31,for at least 20 yearspriorto
the 1858Treaty, CostaRica sought access to the SanJuan asa trade routeforthe
coffee and other productsshe was exportingto Europe in the mid-nineteenth
century. Shecoveted the SanJuan routeas a faster,lower-costalternativeto the
shipment of herproducts fi-omher PacificCoastportsaround CapeHornandthen
across the Atlantic --a route that was both prohibitivelytime-consuming and
extraordinarilyexpensive.CostaRica continually soughtto secureas a matterof
highest national priority a trade routethat consisted ofland transportfkomthe
central coffee-growingregion to the SarapiquiRiver, fi-omthere by boat tothe
SanJuanRiver,downthe SanJuanto theNicaraguancoastalport at SanJuandel
Norte, andfromthere acrossthe Atlantic.
4.9. Navigationon the SanJuan required Nicaragua'sacquiescence, of course,
and this Costa Rica repeatedly failedto obtain, until the1858 Treaty was
negotiated.Article VI of the Treatyresponded directlyto CostaRica'sneed for
the San Juan toserve as an outlet for her trade along theso-called"Sarapiqui
route" (depictedin SketchMap 1,followingparagraph3.31). ArticleVI did so
by providingexpresslyfor a "rightof fkeenavigation ...con objetosde comercio
either with Nicaraguaor with the interiorof Costa Rica, through the San Carlos
river, the Sarapiqui, or another proceedingfiom the portionof the bank of the
SanJuanriver,whichishereby declaredtobelong to Costa Rica."4.10. Costa Rica's commercial navigation rights on the San Juan lost their
importance shortly aftertheTreatywas executed. Thereasons are set forthabove,
at paragraphs 3.53-3.58, especially the constructionof the first trans-isthmian
railroadin Panama, the constructionof CostaRica'sownrailroad toher Atlantic
Coastand the developmentof a majorport there,andthe diversionofthe flowof
the San Juan River upstream £romSan Juan del Norteto the Colorado River,
closing off accessto boththe port andthe seato allbut the smallestvessels. The
resultwas: after 1860,whenshe closedher customspost on the Sarapiqui,Costa
Ricaabandonedany attemptto makesignificant commercial use oftheriver.
4.1 1. There isnothingin Costa Rica'swritten pleadingsthat contradictsany of
thesehistoricalfacts.In particular, CostaRicapresentsno evidencethat,afterthe
1858 Treaty was executed,she ever used the San Juan River to carry on any
internationaltrade, other thana small amount oftrade with Nicaragua. Thereis
no evidenceof trade betweenCosta Rica and anycountryother than Nicaragua,
let aloneany countryacrosstheAtlantic, usingthe SanJuanRiver. Indeed, Costa
Rica has notdescribeda singlevoyage onthe SanJuandestinedfor Europeanor
other Atlanticports, has provided no data on exports (or imports) via the San
Juan,andhas presentedno customs data reflecting commerciatlransit on theSan
Juan. Instead, what the evidence showsis that Costa Rica closed down her
customs posts on the Sarapiqui River and along the San Juan long ago.
Undisputedtestimony establishes that CostR aicahasnot maintainedanycustoms
postsanywherealongthe SanJuan,the Sarapiquior SanCarlosRiversforat least
the past 40 years.276These facts explainwhy Costa Rica has never employed
vesselsof her revenueserviceto protectany ofher commercialnavigationon the
27See Affidavitof William Aburto Espinoza, 8 March 2008(hereinafter"Aburto Affidavit"),
para.3.NR,Vol.11,Annex 65;see alsAffidavitoRigobertoAcevedo Ledezma7 March2008
(hereinafter"AcevedoAffidavit"),parNR,3Vol.11,Annex66.San Juan, as discussed more fullybelow in Chapter V. Simply put, since the
anticipated commercialnavigation on the river never materialized, awhat little
took placewas not even sufficientto require the existenceof customs posts,it
was hardly of such character or volumeas to necessitateprotectionby revenue
servicevessels.
4.12. Although CostaRicahasnot usedthe San Juanas she initiallyenvisioned
--to carry hercoffeeand other productsto European markets --her vessels have,
in fact, navigated theriver continually over thepast 150years "con objetos de
comercio." The evidence showsthat this formof navigation -- which was the
only commercialnavigation by CostaRican vesselsbetween 1858andthe 1990s -
- consisted almost exclusivelyof local traffic, carrying foodsand household
goods between theinterior of Costa Rica and her riparian communitieson the
right bank of the San Juan, and between those communities andSan Juan del
Norte. Costa Rica does not dispute thisby presenting any evidence to the
contrary. Eyewitness testimonyconks the natureof hernavigationon the San
Juan "conobjetosde comercio"between the 1960sandthepresent. Accordingto
Ed6nAtanasio Pastora, who livedand workedin CostaRica alongthe San Juan
fiomthe mid-1960sto the late1970s:
"Duringthisperiod therewas very little commercial traffic
along the San Juan River. Therewas almost no trade
between San Juan del Norte, which was the only
Nicaraguan townalong the entire lengthof the river, with
the Costa Ricanside ...In the 1960sand 1970s therewas
sometradein goodsbetweenPuerto Viejode Sarapiquiand
Barra del ColoradoPoth in CostaRica], whichnecessarily
includedtransport along a portion of the San JuanRiver,
but this was smalland infrequent, and consisted onlyof
some basic foods and other supplies. There were no
customs posts anywhere along the river, and no
internationaltradeat all..Theprincipaland mostfrequent
use of the riverby Costa Ricans duringthis entire period, fiom the 1960sto the 1980s,was by the local population
that livedin the smallsettlements inCostaRica'sterritory.
They navigatedthe riverin their smallboats as partoftheir
dailylives."277
4.13. ThetestimonyofWilliam Aburto Espinoza,a commercial boatmanon the
riverin the 1960sand1970s,is to thesame effect:
"Duringthe 1960s,I worked on the river transporting fuel
and sometimes commercial goodsbetween communities
located on the river. My river shipmentbusiness ended in
the 1970sdueto theonsetof the war inNicaragua. WhileI
was worlujlgon the river, there were a few Costa Ricans
and Nicaraguans who navigatedthe river like myself to
transport goodsfiom one communityto another. Noneof
these boatmen usedtheriver forshipmentsoutsidethelocal
river communities.The materials beingtransported on the
river inthe 1960s were mostlyfuel, bananas, coconutoil,
andwood,all horn the sameareas....Duringthistime,there
was very little activity on the river. I would roughly
estimatethat there were 150families living alongtheentire
bank of the San Juan River, includinga small community
with a school located at Sarapiqui ..During the twelve
hour trip between San Juan del Norteand El Castillo,I
would normallysee one or two boats on the river.Most of
the boats I saw were small boats belongingto the local
neighbors,who lived in Costa Rican territory, navigating
short distances in their private boats for personal
4.14. The lowvolumeof localcommercialandpersonaltraffic on the San Juan
during the 1960sand 1970s,according to thewitnesses, cameto a virtualhalt
between 1977and 1990as aresult, first,oftheNicaraguan Revolution (inthe late
27Affidavitof EdBnAtanasio Pastora, 10 March2008 (hereinafter"PastoraAffidavit"),para. 6.
NR, Vol.11,Annex75.
27Affidavitof William AburtoEspinoza,8 March 2008 (hereinafter "Aburto Affidavit"), paras.
2,4. NR,Vol.11,Annex65.1970s) and second, the Counter-Revolution (during the 1980~)~ when the San
Juan was at the heart of a combat zone. According to Mr. Pastora, who was a
military leader of the Nicaraguan Revolution that overthrew the dictatorship of
GeneralAnastasia Somoza Debaylein the 1970s,and then,after 1982, a military
leader of the counter-revolutionary forces opposed to the new Nicaraguan
government,navigationon the SanJuan:
"...was reduced to a mihum during the height of the war
years, 1977 to 1979 and 1982 to 1986, because of the
extremerisk of going out on a river that wasthe center of a
war zone, where every boatwas a potentialtarget of either
the ARDE [counter-revolutionary]forcesor the Sandinistas
if it was suspected of belonging to orassisting the other
side."279
4.15. According toNicaraguan Army Colonel Bosco CentenoAr6stegui, who
served as Commanderto the revolutionarygovernment'sarmed forces along the
SanJuanbetweenJuly and December1979,and againErorn1982to 1991:
"For some time, after the trimph of the revolutionary
forces and my arrival as Commander in July 1979, the
region remained insecure. During that period, there was
some commercial navigation on the river, but not very
much. There was no international trade, only local trade
between settlementson the river...There were no customs
posts on the Costa Rican side of the river ...The local
traders who transported thesegoods,both Nicaraguansand
Costa Ricans, operated their small boats Ereelyalong the
river. There were no tourist excursions at the time ...By
1982, when Ireturned to the region as Commanderof the
SouthernMilitary Detachment, ithad become a war zone
again. Counter-revolutionary forces ("contras") had
organized in Northern Costa Rica, along the right bank of
the San Juan River, and they madeErequentattacks and
forays acrossit. The riverwasunsafe for navigation forthe
27PastoraAffidavit, paraNR, Vol.11,Annex75. rest of the 1980's,until the fightingendedin 1990 andthe
counter-revolutionary forces-were fblly demobilized in
1991.Thecontrasfired at all ourvesselsthat navigatedthe
river and tried tosinlcthem, and we did the same to all
vessels that webelievedwere theirs or were bringingthem
supplies."280
4.16. Accordingly:
"If there were any local trade, it would have beenvery
minimal, giventhe greatdangerto whichthe boatmenwere
exposed if they were mistaken for an enemy by the
contending militaryforces. There was definitely no trade
with SanJuan del Norte, which wasisolated andincapable
of obtaining supplies. As a result, the entire population
,3281
abandonedthetown. ..
Costa Rican boatmen, whosewitness statementshave been suppliedby Costa
Rica and annexed to the Reply, agree that the combat brought on by the
Nicaraguan RevolutionandCounter-Revolutionmadenavigation on the SanJuan
extremely dangerous, and reduced commercialandpersonaluse of the river to a
bare minimum282
4.17. Costa Rican commercialnavigation on the river returned tonormal, such
as it was, after peace wasrestoredto Nicaragua andthe San Juan River in the
early 1990s.Nomal meant,as it was before the two wars, thatis, strictlylocal
trade between CostaRicanripariancommunities, andbetweenthosecommunities
andtheinteriorofCosta Rica. There wasstillno internationaltradecarriedout on
the river-- not even trade between Costa Rica and Nicaragua. ~ccordin~ to
28Affidavit ofLieutenant Colonel JuanBosco CentenoArostegui, 9 March 2008 (hereinafter
"CentenoAffidavit"),para.4. NR,VoI.11,Annex 69.
28Ibid.
28SeeAffidavitofMarvinHayGonzfilez,28 January2006. CRM,Annexes,Vol.IV,Annex 91;
seealsoAffidavitsof ArmandoPerla Perez, 28 January2006:M,Annexes, Vol. IV, Annex
92; Windel Hodgson Hodgson,28 January 2006. CRM, Annexes, Vol. TV,Annex 93; Jod
GranadosMontoya, 29 January 2006. CRM, Annexes, Vol.IV, Annex 94; Wilton Hodgson
Hodgson,1February 2006.CRM,Annexes, Vol.IV,Annex 96.Brigadier GeneralDenis MembreiioRivas, military commander ofthe San Juan
zonebetweenFebruary 1992andDecember 1995:
"The town of San Juan del Norte, at the mouthof the San
Juan River, had been abandoned by its population during
the 19807s,and remained unpopulated during my entire
tenure. There were no otherNicaraguan settlementson the
leftbank opposite Costa Rica because the entireareais part
of the Indio Maiz Biological Reserve, where human
settlement is prohibited in order to preserve that natural
environment and the rich biological diversity that exists
there...
[Thus,]the only trade that was carried outon that part of
the river was on the portion between the Sarapiqui River
and the Colorado River, which wasused infrequently by
Costa Rican boatmenin small boats transportingsupplies
from Puerto Viejo de Sarapiqui in Costa Rica, downthe
Sarapiqui River to the San Juan,and then east along the
San Juan River as far as the ColoradoRiver (a distance of
approximately 24 km.), where they reenteredandnavigated
Costa Rican waters until their destination at Barra del
Colorado on Costa Rica's Atlantic Coast. These were
mainly engaged in the delivery of supplies to the small
hotels that were springing up in the area to service Costa
Rica's then-nascent tourism industry in the region...The
right of Costa Rican vessels to transport goodsalong this
portion of theSanJuanRiver wasfully respected."283
4.18. By 1996, San Juan &elNorte on the Nicaraguan coast had become
repopulated, but only with a fraction of its former population, and some trade
between that town and Costa Rican riparian communities has taken place.
Otherwise, Costa Rican commercialtraffic on the river remained limited to the
exchange of goods betweenCosta Rican hamlets, and between themand Puerto
Viejo de Sarapiqui.
283Affidavit of Brigadier General Denis Membrefio Rivas, 10 March 2008 (hereinafter
"MembrefioAffidavit"),paras.3NR, Vol.11,Annex73.4.19. The evidence on this point is undisputed: Accordingto Nicaragua's
regional military commanderfrom January 1996to October 1997, Brigadier
General Cesar Ovidio LargaespadaPallavicini:
"There was very little trade trafficon the river. The new
residents of San Juan del Norte engagedin some minor
commerce with Barra del Colorado,using the river, and
there were occasional deliveries of basic supplies from
Puerto Viejo de Sarapiquito Barra del Colorado. Butthis
kind of commercialtraffic, carriedon by small boats,was
very infrequent.There was no truly international tradeof
any kind. Therewere no customs posts.There was a small
number of boatmen, Nicaraguanand Costa Rica, engaged
inethiscommercialnavigation."284
4.20. This situation continued duringthe period from October 1997to June
2000, when the seniorNicaraguan military officerfor the San Juan regionwas
BrigadierGeneralFrancisco Orlando Talavera Siles:
"There is a very insignificant amountof river traffic
dedicatedto trade in goods between communities near the
river...I recall that therewas somesmall amountof trade
between San Juan del Norte andBarra del Colorado,
mainlyinthe transportandsaleof shellfish.Therewasalso
a small amount of local trade between Puerto Viejo de
Sarapiquiand a few of the communitieson Costa Rican
territory. This trade,or what there was of it, proceeded
without interference."285
Thereisnothing in CostaRica'sevidencethat contradictsthistestimony.
4.21. Commercial navigationon the San JuanRiver, as described above,has
remainedthe same, in termsof its local nature and lowvolume, to the present
284Affidavit of Brigadier General Cesar Ovidio Largaespada Pallavicini,9 March 2008
(hereinafter"Largaespada Affida, ara7.NR,Vol. IIA,nnex 72.
28AffidavitofFranciscoOrlandoTalavera Si19May2008(hereinafter"Talavera Affidavit"),
para7. NR, Vol.11,Annex78.day. As testifiedby local boatman Rigoberto Acevedo Ledezma, who hab seen
transportinggoodsin his ownvesselbetweenPuerto Viejode Sarapiquiand San
Juan delNorte forthepast 10 years:
"My business involves transporting basic food supplies from
Puerto Viejoto severalsmall shops andrestaurantslocatedin San
Juan...Onthe return,I rarely transportgoodsonthe sameroute, as
there is little commerce out of San Juan del Norte, excep for an
occasional deliveryof coconutsto PuertoViejo...Duringmytrips,
I have not seen many boats that transport merchandise.In the
stretchbetweenPuertoViejo and SanJuan...onlyI am dedicated
to transportinggoods. Until one yearago, there were two more
Costa Rican boatmen who travelled thissame route. Anothertwo
Nicaraguans cover thearea between San Juan ..and El Castillo,
transportingproducts ofbasic necessity.Also,forthelasttenyears
threeboatmen havebeennavigating, two of whom are CostaRican
and one whois Nicaraguan, usingthe San JuanRiverto transport
shellfishfiomSanJuan...toPuertoLindo, CostaRi~a."~~~
4.22. Mr. Acevedo concludes,"I am not awareof any occasions when anyof
the CostaRican boatmen whonavigate therivertaking goodseitherto Nicaragua
or Costa Rica have been prevented fromcompletingtheir trip by Nicaraguan
authoritiesposted along theirroutes"287.Nor, apparently,is Costa Rica awareof
any occasions when hercommercialboatmen have been prevented by Nicaraguan
authoritiesfrom completingtheir deliveries.Neitherthe Memorialnor the Reply
identifiesa singleexample.
4.23. Nicaragua affirms that she has never preventeda Costa &can vessel,
navigatingtheSanJuanRiver "conobjetos de comercio " fromenteringtheriver,
or from completingits voyage on theriver. There is nothing tothe contrary in
Costa Rica's written pleadings, includingthe annexes. Nicaragua has never
28Acevedo Affidavit,op cit.,parasNR,-Vol.XIA,nnex 66.
28aid., para. 4.prevented a Costa Rican vessel from entering the river or navigating on it for
purposes of internationaltrade, which wasthe navigationright securedby Costa
Rica 150years ago in ArticleVI of the Treatyof Limits.Nor has Nicaragua ever
prevented a Costa Rican vessel from entering or navigating on the river for
purposes of local trade, eitherwithin Costa Rica, or betweenCosta Rica and
Nicaragua. Again,Costa Rica presents no evidenceto the contrary. It istrue that
the Replyincludesa sectionthat bearsthe subheading: "Breachesof Costa Rica's
Right of Navigation 'for purposes of commerce"', at paragraphs 4.25 to 4.49.
But the text of that sectiononly underscores Nicaragua's point:that Costa Rica
has no evidenceof any interferenceby Nicaragua withher right to navigate"con
objetos de comercio." The incidents describedby Costa Rica plainly do not
involve navigation"con objetosde comercio,"regardlessof whetherNicaragua's
translation ("with articles of trade") or Costa Rica's ("for purposes of
commerce") is accepted. Rather, they all involve navigation by Costa Rican
public vessels for non-commercial purposes, in particular law enforcemena tnd
the delivery of social services to riparian communities by Costa Rican
governmental agencies. None of these governmental activities constitutes
navigation"con objetos de comercio," andnone is the subject of the navigation
right affordedto CostaRicaunderthe 1858Treaty,aswillbe furtherdiscussed in
ChapterV of thisRejoinder.
4.24. What this case is about, therefore, is not Nicaragua's denial of Costa
Rica's commercial navigation rights undetrhe 1858 Treaty, orher prevention or
interference withthe exerciseof those rights, butNicaragua's effortsto regulate
navigationon theriver,bothby Nicaraguan and CostaRicanvessels, towhichthe
regulations are equally andnon-discriminatorilyapplicable.There is no dispute
about the content of these regulations. Both Nicaragua and CostaRica agreeaboutwhat theyare and whatthey provide.Whatis disputedis Nicaragua's right
to enforcethem.
4.25. The parties agree that Nicaragua requires all vessels -- including
Nicaraguanvessels -- navigatingonthe SanJuanRiver to: (i)reportto the nearest
Nicaraguan military post upon entering the riverand register the names of
passengers and crew members; (ii) undergoa safety inspection and obtain a
departureclearancecertificateshowingthat the vessel is seaworthy; (ii)eportto
otherNicaraguanmilitaryposts passed duringthe voyage,includingthe lastsuch
post before exiting the river;(iv) navigateonly duringdaylighthours, exceptin
cases of emergency;and (v) dependingon the size and configurationof the
vessel,hoist aNicaraguanflag as agestureofrespectforNicaragua's sovereignty
overthe territory288.
4.26. It has alreadybeen demonstrated inChapter11,Section I,that Nicaragua,
which has "exclusive dominion and supreme contro (sumoimperio)" over the
San Juan,is empoweredtoregulate CostaRica'snavigation on theriver, provided
suchregulationisreasonable,non-discriminatory, and in furtheranceof legitimate
sovereign interests. Inthe section that follows,it will be further demonstrated
that the regulationsdescribedabove fully satisfy thisstandard,and inparticular
that they are necessary measures tofurther Nicaragua's legitimate interestsin
environmental protection, crime prevention, navigational safety, and border
security.Thus,to the extentthat CostaRicahas exercised herrightto navigateon
288SeeCRM,paras. 1.063.39 and CRR,paras. 3.994.05-4.06;eealsoMernbreiioAffidavit,
para.4.NR, Vol. 11,Annex73; Largaespada Affidavit,p7. NR,Vol.11,hex 72;Talavera
Affidavit, para. NR, Vol.11,Annex 78; Affidavit of Colonel RicardoShchez Mkndez, 9
March 2008 (hereinafter "S;inchez Aff~davit"),7. NR, Vol. 11,Annex 77; Army of
Nicaragua, "Action Plan for Issof Departure Clearance Certifiin the San Juan River"
(hereinafter"ActionPlan"),5 2001 , rt6.NR, Vol.11,Annex 48.the river "con.objetosde comercio,"Nicaraguahas fully respected that right,has
never deniedit or prevented its exercise,and has done nomore than applyin an
even-handedmanner such regulations as are reasonable and necessary forthe
furtheranceof herlegitimate sovereigninterests.
4.27. Costa Rica claims that, under her definitionof navigation"con objetosde
comercio," she has a right to navigate on the San Juan not only for the
commercial transport of goods, but also for the purpose of performing
commercialservices,includingtourist excursions.Thereis no needto repeathere
the legal argumentsand evidence already presentedin the Counter-Memorialand
in Chapter I11of this Rejoinder, which demonstratethat the Treaty of Limits
coders no right upon Costa Ricato perform tourist, passenger transportor other
servicesunrelatedto the commercial transportof goods.But it is worth pointing
out that, in practice, Costa Rica never claimed a right to conduct tourist
excursionson the San Juan Riveruntil the early 1990s,more than 130yearsafter
the 1858Treaty was executed.To be sure, the Memorial and theReplyrefer to
four isolated instances in 1982 (which stillwas more than 120 years after
executionof the Treaty), but thereare no other tourist excursionsmentionedby
CostaRica before the early 1990s.It will be recalledthat between 1982and 1990
the SanJuanRiverwas in the midstof a war zone,andno traffic on the riverwas
safe. Because the counter-revolutionary forceswere based on the Costa Rican
bank of the river, and innocent commercial traffichad all but disappeared, the
Nicaraguan Army stopped and searched all unfamiliar vessels as a security
measure. Thisincluded the four incidents in 1982 involving privately-operated
touristboats mentionedin CostaRica's pleadings.As acknowledgedby ColonelCenteno, the Nicaraguan Army's regional commander at the time: "We
encounteredafewtourism excursionsin 1982,but notthereafter.7y289
4.28. Costa Rica provides no evidence on when, after peace was restored in
Nicaragua in the early 1990s,her tourist boats beganoperatingon the San Juan,
or howfrequentlytheyran, or howmany touriststhey carried.It thereforefalls to
Nicaraguato supplythis information,in the interestof historical accuracy.While
Nicaragua cannotpinpoint the exact datethat CostaRicanvessels began carrying
tourists to and along the San Juan, the evidence shows that these activities
commencedin earnestat some time betweenFebruary 1992and December 1995,
when Nicaragua's regional militarycommander was Brigadier General Denis
MembrefioRivas:
"During my tenure as Chief of the Military Detachment,
there was a significant increase in the frequency of
navigation of the lower part of the San Juan River by
vessels carrying tourists. Some of the vessels were owned
and operatedby Nicaraguans,butthe vast majority of them
were Costa Rican. The principal route was from Puerto
Viejo de Sarapiqui in CostaRica downthe SarapiquiRiver
to the SanJuanRiver,then eastalongthe SanJuan Riverto
the location known as Delta, where the ColoradoRiver
begins, and then down the Colorado (in Costa Rican
waters) to Barra del Colorado or Tortugueroon the Costa
Rican coast....Near the beginning of my tenure, no more
than 10 tourists per month were transported along this
route, oneway orthe other. However,by the time I left the
Detachment at the end of 1995, the numberincreased to
between approximately 200 and 700 tourists per month,
dependingonthe season."290
289CentenoAffidavitara. 4. NRVol.11,Annex69.
290MernbrefiAffidavi tara. 6. NVol. 11,Annex73. COSTARlCAN TOURISM ROUTEFROM 1990s TO PRESENT
SketchMap3 ForIllustrativePuOnlyes
4.29. This large increase in traffic along the river raised several concerns for
Nicaragua. As explainedby Brigadier GeneralMembrefio:
"First, as a sovereign State,Nicaragua needed to assure the
safety and security of all transportation in its waters,
includingtransportationby foreign vesselscarrying foreign
citizens. Second, Nicaragua had a need to assure that the
fragile ecology of the Indio Maiz Biological Reserve and
the San Juan River were protected. To accomplish these
objectives, Nicaragua not only required all tourist boats
(including those owned and operated by Nicaraguans) to
register at the closest military post to their point of entry of
the river, and to undergo a safety inspection and obtain a
departure clearance certificate; it also required all
passengers and crews to carry valid passports, and all
passengers to purchase tourist cards for US$ 5 per
passenger and to pass through Nicaraguan immigration on
entering and exiting Nicaragua. These were the same
requirements applied to all foreign citizens upon entering Nicaragua at any of its border posts.. ..Nicaragua required
that all vessels report to the nearestnilitarypost when they
left the San Juan River, as well as when they entered it.
This was to assure that the full complement of passengers
who entered Nicaragua were leaving, and that none had
disembarked illegally in Nicaraguan territory, especially in
the Biological ~esewe."~~'
These requirements have been in forceever since, and for the same reasons given
by Brigadier General ~embreiio~'~.
4.30. Although Costa Rica complains that Nicaragua has denied her alleged
right under the 1858 Treaty to navigate the San Juan River for the comercial
purpose of conductingtourist excursions, she fails to identify a single incident in
which Nicaragua preventeda Costa Ricantouristboat fiom entering or navigating
on the San Juan, or from completing its journey on the river (apart fiom the
wartime security measures carried out in 1982). There is no evidence, other than
from 1982,that Nicaragua ever detained a Costa Rican tourist vessel, denied its
entry on the San Juan, or prevented it fiom navigating on the river. And
Nicaragua affms that, although she has a right to prevent Costa Rican vessels
from engaging in tourist excursions on the river --since Costa Rica has no right
to navigate on the river forsuchpurposes --shehas never done so.
4.31. Consequently, and once again, this case isnot aboutNicaragua's denialof
Costa Rica's alleged navigation rights under the 1858 Treaty; it is a case
concerning Nicaragua's efforts to regulate navigation (Nicaraguan as well as
Costa Rican) in a reasonable manner and in furtherance of legitimate sovereign
interests. The regulations that Nicaragua imposed on Costa Rican (and
''IIbid., para.7
'''See Largaespada Affidavit, paras.9-10. NR, Vol. 11,Annex 72; see also Talavera Affidavit,
para 6.NR, Vol.11,Annex 78;Shchez Aff~davit, ara. 7. NR,Vol.11,Annex 77.Nicaraguan) touristvessels are identifiedabove, in paragraph4.25. Morewill be
said about these regulations and the justifications for them in the following
sectionofthischapter.
4.32. Before proceedingto that discussion,however, two points bearmention.
First, as indicated above,the regulationsaboutwhichCostaRicanow complains
have been in effect since at least the time of Brigadier GeneralMembrefio's
tenureas Nicaragua's regionam l ilitarycommander,that is,sincesome time prior
to December 1995. Thisdate is significantin light of Costa Rica's repeated
assertionsthat Nicaragua didnot begin to violateherrightsunderthe 1858Treaty
in a systematicmanner until 1998 (and more particularly,until July 1998)293.
Costa Rica does not explain how the same Nicaraguanregulations that were
continuouslyin effect sinceprior to December 1995 did not constituteviolations
of her Treaty rights before July 1998,but somehow becameTreaty violations
thereafter.Costa Rica's silenceon this point exposesa fundamentalflaw in her
case:sheoffersno serious argument against the lawfiilnessand reasonablenessof
the measures Nicaraguahas taken to regulate, in a non-discriminatory manner,
navigationonthe SanJuanRiver.
4.33. Second, although Costa Rica alleges that, as a result of Nicaragua's
regulatory practices there habeen a sharpdrop in Costa Rican tourism along the
San Juan,andgrave economic ham to her tourism industry, she offersno datato
support these allegations. Nowhere does Costa Rica provide any evideno ce the
number or frequencyof tourism excursions,or the number of tourists --either
before, during or afterNicaragua'sregulationswent into effect.On this ground
alone, the claim that Nicaragua's regulations have unreasonably imposed a
293See, inter alia, CRM, paras.3.02, 3.21-3.29,4.104-4.106;see also, CRR, paras.3.23, 3.87,
3.91,3.100,3.141,4.01,4.50.burdensome limitationon Costa Rica's exerciseof her navigationrights must be
rejected. But thereis more. Thetablebelow wascompiledfiom registrationforms
maintained at Nicaragua's Sarapiqui bpost, which is the principal point of
entry for Costa Rican touristvessels traversing the San Juan fiom west to east,
and the principal point of exit for these vessels travelling in the opposite
direction. As such, it is the Nicaraguan border post where virtuallyall Costa
Rican tourist vessels report,and register how manytourists theyare carrying, as
well as their names and countriesof origin. The table showsthat Costa Rican
tourism along the San Juan River actuallyincreased after 1998,when Nicaragua
supposedly began violatingCosta Rica's Treaty rights in a systematic way, and
that it remained at healthy, elevated levelthe end of 2004, the last full
year before the present conflict eruptedand these proceedingswere commenced
(excluding 2001, forwhich norecordswere available).Thesefiguresdemonstrate
that there is no merit to Costa Rica's unsupported allegationthat Nicaragua's
regulations have causeda reduction in her tourism activities on the San Juan,
much less a harmto her tourismindustry.
Table 1. SarapiquiBorder PostTourismRegistry(1997-2004)~'~
1997 1998 1999 2000 2001 2002 2003 2004
USA 230 230 121 576 868 1177 976
GERMANY 176 111 49 110 182 139 125
FRANCE 5 12 7 41 105 214 231
COSTARICA 39 112 162 270 414 336 144
SPAIN 14 99 2 275 133 168 103
CANADA 21 24 14 148 101 133 121
ITALY 6 5 3 33 49 144 118
ENGLAND 19 58 24
99 184 357 418
ALLOTHERS 93 60 80 291 369 612 354 .
Registered 603 711 462 1,843 NIA 2,405 3,280 2,590
TOTAL
29SeeAffidavitofMartin Antonio Jarq4June 2008, parNR,Vol.11,Annex71.
178SectionIIP. TheReasonablenessofNicaragua'sRegulationsandtheImportant
InterestsThat They Serve
4.34. The regulationswhich Costa Ricanow claimsviolateher rightto navigate
the San Juan freely are all necessaryto protect Nicaragua's legitimate sovereign
interests. Costa Rica complains about six categories of regulations: (1) the
requirementto stop at Nicaraguan poststo register;(2)the requirementto obtain
a departureclearancecertificate;(3)theprohibitiononnavigation at night; (4) the
prohibition on certain fishing activities; (5) the requirement to undergo
immigration processing;and (6) the requirementto fly the Nicaraguan flag. In
the following sectionsof this chapter, Nicaraguawill show that eachof these
requirementsis tailoredto protect oneor more (indeed,in most cases,more) of
Nicaragua's sovereign interests in (a) environmentalprotection, (b) control and
preventionof crime,(c)navigational safety,and (d) border protection. It cannot
be deniedthat these are all legitimatand importantnational interests. Nor can it
be shown that any ofNicaragua's regulationsimposesan impedimentto Costa
Rican navigation. At worst, they constitute de minimis inconvenienceswhose
reasonablenessandnecessitymorethan balanceouttheseminor intrusions.
4.35. Nicaraguahas animpressivewealth of biodiversityconsistingof hundreds
of speciesof flora and fauna which thrive inecosystemsthroughoutthe country.
The area includingand surroundingthe San Juan Riveris especially rich, and
Nicaraguahasinvestedconsiderableeffortsin crafting andenforcingthelawsand
regulationsnecessaryto protect and conservethese delicateecologicalareas. I. ProtectedAreas
4.36. There are three Nicaraguannature preserves on or near the San Juan
River:(i)the IndioMaizBiological Reserve, bordering theNicaraguan side ofthe
river; (ii) the San JuanRiver Wildlife Refuge, consistingof the river itself and a
two-kilometre strip abuttingthe Nicaraguan bank2g5a ;nd (iii)the SanJuan River -
Nicaragua Biosphere Reserve, which is affiliated with UNESCO's Man and
Biosphere projectandencompassesthe other reserves.
295SeeNicaragua, Decree 66-9,rt.3.5.NCM,Vol. 11,Annex61.
180 For illustrative purposeonly
SketchMap 4(a) TheIndio MaziBiologicalResewe andSunJuan River wildlife refuge
4.37. Southeastern Nicaraguais particularly rich environmentally. On 17April
1990, the Govement of Nicaragua created the San Juan River Indio Maiz
Biological Reserve, along with three other protected areas located within the
greatersoutheastregionof~icaragua~'~.
4.38. The original footprint of this Reserve covered 435.5 lm2. Since then,
Nicaraguahas increased itssize to 3,157 km2 297. In additionto a large expanse
of land, the Resewe as originally created also included most of the lower San
Juan River extendingto the Caribbean Sea. The protectedpart of the river was
designatedas a separate reserve in1999,as discussed below.
4.39. The Indio MaizReserveis comprisedof a complexvariety of ecosystems,
includinghumid tropical forests, continentalwetlands, mangroves,estuaries, and
salt marshes298. These ecosystems support a remarkable number of animal
species,including hundredsof differentbird speciesandmammalssuch as sloths,
wild boars, pumas, pacas, manatees, and monkeysa ,s well as poison dart fkogs,
snakes, crocodiles,turtles, and iguanas299.It is estimated thatthe Reserve hosts
296See Nicaragua, Executive Decree 527. NCM, Vol. 11,Annex 58. The same decree which
designated the reserves also established a National Commission to manage and develop the
protected areasof the SoutheastofNicaragua.
297 See MARENA, Southeastern Nicaragua Biosphere Resewe: Strategic Program 2008
(hereinafter"Strategic Program2008"NR, Vol. 11,Annex47.
298See ibid.;see also Meyrat, Alan. The Biological Stretchof SoutheastNicaragua: Important
Space for the Conservation of Nature. IMARENA-ARAUCARLA,2006 (hereinafter "The
Biological Stretch"),200NR, Vol. 11,Annex 41.
299See Affidavit of Benedicto Adam Borges Requenes, 26 May 2008 (hereinafter "Borges
Affidavit"),para. 5., Vol. 11,Annex 67.221 species of bird3", 65 mammal species3013 , 4 amphibian species, 55 reptiles,
and 57 species of insect302. Many of these animals, which can be sold on the
black market for substantialsums, are attractivetargets forpoachers.
Photographsabove:on the left,wetlandsof theIndioMali BiologicalReserve;
on the right,aPoisonDart Frog. TheSunJzianRiver 'Wi'ldlieefuge
4.40. In May 1999, Nicaragua created the Southeastern Biosphere Reserve of
Nicaragua, which includes seven protected areas303.One of these protected areas
is the San Juan River Wildlife Refuge, which was carved out of the Indio Maiz
Reserve. This conservation area encompassesthe lower San Juan River from its
junction with the Bartola River to the Caribbean Sea, covering the entire portion
of the San Juan where the left and right banks belong,respectively, to Nicaragua
and Costa Rica. The San Juan River Wildlife Refuge also includes a two-
ltilometrestrip of land extending north from the river's left (Nicaraguan)bank to
the southernedge of the Indio Maiz ~eserve~'~.
300See WNA, Indio Maiz ManagementPlan: 2005-2010 Period (hereinafter "Indio Maiz
ManagementPlan"), 9May 2006. NR, Vol. 11,Annex 42.
301Ibid.
302Ibid.
303SeeNicaragua, Decree 66-9Art2. NCM, Vol. 11,Annex 60.
304Ibid.Art3..7.4.41. In 2001, the San Juan River Wildlife Refuge was designated as a wetland
of international importance by Nicaragua under the Convention on Wetlands of
International Importance (the Ramsar As a party to the
Convention, Nicaragua agreed to the international standards of conservation and
environmentalmanagement set forth therein. The protection of the San Juan thus
became an internationally recognized and monitored priority. According to
UNESCO, the San Juan River Wildlife Refuge and the adjoining Indio Maiz
Reserve form part of "one of the two most extensive biological nuclei of the
MesoamericanBiological
4.42. The San Juan RzverWildlife Refuge encompasses a variety of wetlands,
including estuaries and shallow marine waters, coastal freshwater lagoons, and
inter-tidalmarshes, as well as permanent lakes, rivers, andpools. These wetlands
support a large diversity of bird, fish, crustacean, andmama1 (both aquatic and
terrestrial) species. Scientific expeditions have identified 303 bird species, 26
mamals, 15 reptiles, 3 amphibians, and 61 insects, in addition to 7 species of
marine crustaceans, 13 marine fish species and 10 fresh water fish species307.
Many of these animal speciesare threatened with extinction. Indeed, there are no
less than 46 endangered species inhabiting the San Juan River Wildlife Refuge,
includingthe exceptionallyrare manatee308.
305See "Convention on wetlands of international importance especiallyas waterfowl habitat,"
concluded atRamsar, Iran on 2 Feb. 1971. (United Nations,TreatySeries, Vol. 996, Reg. No.
14583,17Feb. 1976.)
306"TheAnnotatedRamsarList:Nicaragua". NR, Vol. 11Annex 44.
307 See MARENA, The Sun Juan River WildlifeRefige ManagementPlan (hereinafter "SJR
Wildlife Refuge ManagementPlan"), 2005,p. 37. NR, Vol.11,Annex40;see also ibid, pp. 119-
128 (Annex 1of ibid.)for a table of the numerous animal species foundin the San Juan River
WildlifeRefuge.
308Seeibid.,p. 39. DISTRIBUTIONOFTHE MANATEE
INTI-IESANJUAN RIVERANDTI-iE
I 1
Sketch Map 5: T%eDistribution of the Manatee in the Sun Juan River and
Tortuguero~hannels~~~
4.43. In addition to these animals, the San Juan River Wildlife Refuge
conservesa varietyof plants, includingvaluabletrees,of which the red mangrove
(Rhizophora mangle) and the yolillal (Raphia taedigera) are of particular
309JimdnezPdrez,Ignacio. The Manateesof the Sun Juan River and the TortugueroChannels:
Ecology and Conservatio. anagua.ARAUCAIUA2 , 000,p. 33, (hereinafter"The Manatees of
the San JuanRiver"NR,Vol. 11,Annex3 1.
185importance. The full extentof the vast ecologicalwealth containedin the Refuge
and the adjacentIndioMaiz Reserve remains to bediscovered.
(5) TheSunJuan River -Nicaragua Biosphere Reserve
4.44. In July 2003,UNESCO's Man and the Biosphere Programme designated
the San Juan River Wildlife Refuge and theIndioMaizBiologicalReserve aspart
of the greater international biosphere reserve entitled the "San Juan River -
Nicaragua Biosphere This internationallyrecognized and supported
biosphere covers 18,340km2,a full 14percent of Nicaragua's national territory
(the equivalent of half of the etherl lands)^ ".he Biosphere Reserve covers a
wide variety of ecosystems,including tropicalhumid forests and wetlands, tidal
marshes,coastallagoonsandestuaries, allofwhich are important sheltersforrare
or threatenedanimals andplantresourcesofthe Meso-Americantropics. In total,
the Biosphere Reserve includes19 natural ecosystems andis inhabited by 555
species,including27 amphibians, 388 birds, and 60mammals312.
4.45. This comprehensive reserve system is built around several nucleus
zones313. One of the principal zones is the Indio Maiz Biological Reserve.
Accordingto UNESCO,"the vast size of the biospherereserve, in additionto its
proximity to neighbouring Costa Rican protected areas, and as part of the
Mesoamerican Biological Corridor, guarantee an adequate area for preserving
genetic diversity, free mobility of species, breedingand maintenance of major
310UNESCO MAB BiosphereProgramCertificat, 5Sept.2003. NR, Vol.11,Annex 39.
3" See"IndioMaiz DeclaredWorldBiosphereReserve", (LaPrensa, 10July 2003). NR,Vol. 11,
Annex24.
312SeeTheBiologicalStretch,ocit.p. 9 and 21:NR,Vol.11,Annex41.
313SeeStrategicProgram2008,op. ciNR,Vol.11,Annex48.species such as the jaguar or American tiger (Felis onca), the tapir (Tapirus
biardii)andthered andgreenparrot(~sittacideae)"~'~.
2. 'RegionalandInternationalEnvironmentalCommitments
4.46. Participation in the UNESCO Biosphere Program and the Ramsar
Convention are only some of Nicaragua's international and regional
commitments to protect and effectivelymanage the environment within and
around the San Juan River. In 1977, Nicaragua ratified the Convention on
International Trade in Endangered Specieo sf Wild Faunaand Flora (cITEs)~'~.
The Conventionobligates Nicaragua toregulate strictlythe trade of threatened
species foundin her territory. Several of the speciesNicaragua committed to
protect are foundin the SanJuan River Biosphere Reserveincluding atleast 42
bird, 36mammal,8 amphibian,and 18reptilespecies316.
4.47. In 1992,Nicaragua, together with five other CentralAmericancountries,
including Costa Rica, signedthe Conventionforthe Conservationof Biodiversity
and protectionof the PriorityWildlife Areas in CentralAmerica317.The State
partiesemphasizedthat"the creation,managementandstrengtheningofProtected
Areas playa relevantrole in ensuringsustainable development, reproduction of
31See "BiosphereReserve Information: Nicara: o SanJuan,"UNESCO - MABBiosphere
ReservesDirectoryNR, Vol.11, nnex45.
315See Nicaragua,AgreementNo. 5, 23 April 1977. NR, Vo11 ,nnex 51; see also ''Listof
ContractingParties", Website of Conventionon InternationalTrade in EndangeredSpecies of
WildFaunaandFlora.Avialableat:http:l/www.cites.org/eng/disc/parties/ch.
31See IndioMaiz Management Plan,op. cit., p. NR, Vol. 11Annex 42;see also "CITES-
listedanimals:Nicaragua," UNEP-WCMCSpeciesDatabase:CITES-ListedSpecies.Availableat:
http://www.mep-wcmc.org/isdb/CITES/Taxonomy/comtrytrylist.c~isdb/CITES/
Taxonomy/comtrytrylist.cfm?displaylanguage=eng&Co~~~&sub~~Go.
31See Conventionfor the conservation of Biodiversityand Protectionof the Priority Wildlife
Areasin Central America,5 June 19NR, Vol.11,Annex2.essential ecological processes and rural development'"'*.Both Nicaragua and
Costa Rica also recognized that the "conservation of biodiversity in border
habitats or bodies of water requires the will of all and external cooperation,
regional and global,in additionto the efforts developedby our nati.ns...
such, both States obligated themselvesto "ensure the adoption of measures that
contributeto the conservationof natural habitats and their populationsof natural
species"320.
4.48. These agreements,of course, meanthat Nicaragua is required to protect
the environmentin and surroundingthe SanJuan Rivernot merelyas a matter of
municipal law butas a matter of international obligationas well. Indeed, under
the agreements CostaRica is obligated to protect the San Juan River and its
environment from her side of the river. Nicaragua places a high priority on
meeting these obligations. Costa Rica,apparently, does not. While Nicaragua
has protected her entire side of the river by prohibiting human habitation and
economicexploitation. CostaRicahas not. Very littleremains of the vastforests
on the right bank that once mirrored those on the left. Costa Rica has permitted
the levelling of these fragile areas, and the destruction of their ecosystems to
make way for large cattle ranches andgrazing areas. SketchMap 6 producedby
Nicaragua's Ministryof Environment and Natural Resources, shows the areas
adjacentto the San Juan Riverprotected,respectively,by Nicaragua(to the north)
and CostaRica (to the south). While theentireNicaraguanarea north of the river
is protected (as indicatedby darkgreen or yellow-lined areas),there is relatively
littleprotectionon the south side.
3'Ibid .,eamble.
31Ibid .rt3.
32Ibid .rt13(c). SketchMap 6 For illustrativepurposes only
3. Management and Protectionof theReserves
4.49. In order to implementNicaragua's commitmentto conserve the San Juan
River Wildlife Refuge, the Indio Maiz Biological Reserve, and the greater San
Juan River - Nicaragua Biosphere Reserve, the Nicaraguan Ministry of
Environment and Natural Resources ("MAmNA," by its Spanish acronym) has
I established seven posts along the left bank of the San Juan River, in addition to
inland posts scattered throughout the Indio Maiz Reserve. These seven posts are
I located at San Carlos, Siibalos,Bartola, Boca de San Carlos, Sarapiqui,Delta, and
I
San Juan de Nicaragua, the last four of which lie directly across the river from
Costa Rican territory. Each post is manned by two rangers, who haveresponsibility for monitoringand controlling the areas surroundingthat post321.
In order to manage the region's naturalresources, the MARENA rangers must
monitornavigationalongthe SanJuan.
4.50. The distance between the posts can be up to 40 kilometres, making the
task of monitoring the reserves extraordinarily difficult. The challenge is
compoundedby the fact thatpoachers and otherhuman predatorswho operate in
the area are frequentlyarmed. As a result, WNA andthe Nicaraguan Army
have joined efforts to cooperate inthe task of protecting theseerves322.For
this reason MARENA and Army posts have beenestablished adjacent to one
another along the river, andARENArangers arejoined by military officers in
theirpatrols onthe riverandthe adjoininglandin theNicaraguanreserves.
NICARAGUAN ARMYAND MARENAPOSTS
ON THESANJUANRIVER
SketchMap7 ForIllustrativePurposesOnly
-
321SeeBorges Affidavit,6.rNR,Vol.II, Annex67.
322SeeInter-InstitutionalConventionfor EnvironmentalConservationandthe SustainableUse of
Natural Resources Signed Between the Ministryof the Environmentand Natural Resources and
the SandinistaPeople'sAnny, 29March 1995. NR, Vol.II,Annex3. 4. IllegalLogging
4.51. Illegal logging has been a constant problem both in the Indio Maiz
Biological Reserve andin the San JuanRiverWildlifeRefuge. Both reservesare
home to a wide variety of rare tree species, many of which are commercially
prized for their aesthetics and durability. The rosewoodtree (Dalbergia retusa),
for instance, canbe sold in the United States forup to US$ 40 per kilogram323.
The caoba (Swietenia macrophylla) and cedro real (Cedrela odorata) -- two
different species of mahogany --the laurel (Cordia alliodora), the guanacaste
(Enterolobiumshomburkii),and theroblemacuelizo(Tabebuiarosea) are also all
in high demand,especiallyin CostaRica, for the constructionof fmefi~niture~~~.
4.52. Apart from their natural beauty, these andother sought-after trees are
critical to maintaining the delicate ecological balance of the reserves. The
almendro tree (Dipteryx oleifera), for example, provides refuge and food for
green macaws, the population of which has declined precipitously due to
increasedloggingin both CostaRicaand, byillegallogging, ~icaragua~~~.
4.53. The biggest threat to Nicaragua's reservescomes from the Costa Rican
sideof the river. Residentsof Costa Rican settlementsfrequently crossthe river,
enter the reserves, cutdown protected trees andreturn to Costa Rica to sell the
TheycometoNicaragua for thewoodbecauseit canno longerbe found
-- at least not in abundantquantities-- on the CostaRican bank. Wile the land
to the north of the river, withinNicaragua, remainsheavily forested, the landto
323SeeTheBiologicalStretch,op. cit.30.NR,Vol.11,Annex 41.
324Ibid.
325SeeMARENAMinisterialResolution 029-2006p,araM. NR,Vol.11,Annex 57.
326SeeBorgesAsdavit, para7. NR,Vol.11,Annex 67.the south in CostaRicahas largelybeen clearedby CostaRica's logging industry,
increasedhumanhabitation,andthe establishmentof numerouscattleranches.As
statedin a recent internationaltourist guide book:
"You'llnotice evidenceof loggingin the area, especially at
the pointwherethe Sarapiquiflows intothe Rio SanJuan --
the lumberindustry has long hadcarteblanche in this area,
due to the non-enforcementof existing anti-logginglaws.
The Nicaraguan side of the Rio San Juan, part of the
country'shuge IndioMaiz Reserve, looks altogetherwilder
than its southern neighbor, with thick primary rainforest
creeping right to the edge of the bank. Partly because of
logging, and the residual destructionof its banks, the Rio
San Juanis silting up, have even shallow bottomed lanchas
get stuck in the once consistently deepriver.""'
4.54. TheNicaraguan Anny maintains recordsof poachers caughtcutting trees
or transporting logs from the protected areas. Some of these incidents, as
contemporaneouslyrecordedby the Anny, are describedin Annex74. To cite an
example,in one dayalone --26 May 1997 -- 5,000board feet of wood were cut
andremoved from Nicaragua's reserves,and transported acrossthe river to Costa
~ica~~~.
327McNeil, Jean. TheRoughGuide to Costa Rica, Fourth Edition, 2005,p. 171. NR, Vol. 11,
Annex34.
328See Affidavit of Lieutenant Col alnerAbraham MolinaPBrez,26 May 2008(hereinafter
ccMolinAffidavit"), Annex1toAffidavit. NR,Vol.11,Ann74.Photograph Above: Aerial view of the Sun Juan Riverporn the Nicaraguan side. The
forested land intheforeground isNicaraguan territorywithin the Indio Maiz Biological
Reserve. Theclearedlandin the baclcgrozmd is CostaRicanterritory.
PhotographsAbove: CostaRican residentsfound takingfreshly cutplanlcsof wood into
CostaRica on theSunJuan River.
4.55. Illegal logging along the San Juan River is not a recent phenomenon, but
has long been a serious problem. The evidence shows that Costa Rica has
recognized this since as far back as 1869. On 28 April of that year, Costa Rica
enacted a decree which, in its first article, prohibited the shipment through the
San Juan fiver of lumber and other resources on her side of the river3".
32See Reply of CostaRica, op. cit., pp. NR,-Vol. 11,Annex See alsoC,hap. IT.,Sec. 111
above.Unfortunately for Costa Rica, her efforts over the years to prevent illegal logging
on her bank of the SanJuan have not been sufficient, as evidencedby the factthat
most of the once-forested land has been cleared. Especially in view of this,
Nicaragua submitsthat shehas every right to take reasonable measuresto prevent
the same thing fiom happening on her side. By designatingthe river itself and the
entire length of its left bank an environmentally protected area, Nicaragua has
been able to accomplish (thus far) what Costa Rica has not; until now, she has
managed to preserve her forests, and the plant and animal species that inhabit
them. But prevention of deforestation and protection of the environment are
constant challenges, and require perpetual vigilance. No State should be more
aware than Costa Rica of the risks and consequences of deforestationby illegal
loggers and human settlers, since she has suffered the loss of her own forests at
their hands. If any State should understand the need for Nicaragua's
environmentalregulations,it is CostaRica.
5. Illegal Hunting and Fishing
4.56. Trees are not the only natural resource illegally extracted fiom the
Nicaraguan reserves along the San JuanRiver, or fromthe river itself. Poachers,
mostly originating fiom Costa Rican territory, illegally enter the reserveseking
other valuable plants and, especially, animals which are taken either for their
meat or for sale as pets. Nicaraguan Army records include numerous
apprehensions of poachers engaged in illegal hunting activities. Examples are
provided in Annex 67. Local hunters have trained their sights especially on
mamals like white tailed deer (Odocoileusvirginianus),tapirs (Tapirus bairdii),
pacas (Agouti paca), white lipped pecarries (Tayassu pecari), and collaredpeccaries (Tayassu tajac~)~~~.Marine turtles, iguanas, crocodiles and caimans
are also frequenttargets of poachers alongthe river.
4.57. An unfortunate but common weekend practice for some inhabitants of
Costa Rica's riparian communities is to cross the river with hunting dogs to
capturepacas, deer, sahinos, pavones, monkeys, parrots, macaws, or guatuzas, as
well as other species that are on the verge of e~tinction~~'.Pacas and macaws
have been sold on the CostaRican market andhunted almostto extinction332.
Paca Deer Tapir RedMacaw
4.58. Illegal fishing in the protected waters of the San Juan River is also
common. Amongthe many fish species which live in the Refuge, severaluse the
river as a migration route to reach Lake Nicaragua or Lake CafioNegro in Costa
Rica where they procreate333.The more notable of these include the bull sharlc
(Carcharhinus leucas), the tarpon (Tarpon atlanticus), the fat snook
(Centropomz~p sarallelus), and the tropical gar (~entropomusparalle~us)~~~A . s a
result of illicit fishing in the San Juan River Wildlife Refuge, the populations of
330See "CostaRicans DamageFlora in the San JuanRiver", (LaPrensa, 13June 1991). NR, Vol.
11,Annex 15;see also The Manatees ofthe SanJuan River,op.,p. 51NR, Vol. 11,Annex 32.
331Seeibid se;also BorgesAffidavit, para 9. NR, Vol. 11,Annex 67.
332See "CostaRicans DamageFlorain the San JuanRiver". NR,Vol. 11,Annex 15.
333SeeTheBiological Stretch,op. cit., pp. 24-5. NR, Vol. 11,Annex41.
334See MARENA, "Species Under Threat of Extinctio--Biosphere Reserves: Indio Maiz and
BOSAWAS" (hereinafter"MARENAEndangered SpeciesList7'). NR, Vol. 11,Annex 46.all these fish have significantly declined335. Some, like the shark, are close to
extinction336.
4.59. The river also hosts an array of shellfish species including the Caribbean
Spiny Lobster (Panulirus argus)337 and the large Big Claw River Shrimp
(Macrobrachiurn car~inus)~~~ and four species of Caribbean Prawn (Penaeus
spp).33gCosta Rican riparianresidents illegallyplace traps in the water to capture
these protected species in bulk for commercial sale340.Nicaraguan Army records
reflect numerous incidents of illegal fishing or shrirnping activities in or on the
river. See Annex 74. For example, in one day, in a single location in the River
Refuge, Amy and WNA personnel found and seized as many as 85 shrimp
traps341.
6. Illegal Occupation ofProtected Land
4.60. With some frequency,familieslarge and small, seeling land and dwelling
space have crossed the river from Costa Rica in an effort to clear and settle on
protected land in the San Juan River Wildlife Refuge and Indio Maiz Reserve.
When detected, these incidents are duly recorded by the Nicaraguan Army.
Annex 75 provides some examples, extracted fi-omthe Army's records. In 1996,
for instance, in onenight 72people from CostaRica occupiedterritory within the
335See TheBiological Stretch,op. cit.,p. 25. NR, Vol.11,Annex 41.
336SeeMARENAEndangeredSpeciesList, op. cit., NR, Vol.11,Annex46.
337See IndioMaiz ManagementPlan, op. cit.,p. 55. NR,Vol. 11,Annex42; see also SJRWildlife
Refuge ManagementPlan, op. cit.,p. 59. NR, Vol. 11,Annex40.
338See TheBiological Stretch,op. cit.,p. 25. NR, Vol. 11,Annex41.
339See SJRWildlifeRefuge ManagementPlan, op. cit.,p. 59NR, Vol. 11,Annex 40.
340See BorgesAffidavit,para 8. NR, Vol. 11,Annex 67.
341SeeMolinaAffidavit,Annex 1to Affidavit.NR Vol. 11,Annex 74.ZndioMaiz Biological Reserve, 5 kilometres fkomthe Boca Sarapiquiborder
post342.Similar eventshwe occurredrepeatedlyover thelast decade. In 2006,
19CostaRicanresidentswere fomd clearing landforoccupation inthe Reserve
and prosecuted343.
7. Nicaragua's RegulationsAreNecessary ToProtect theEnvironment
(a) The RequirementToStopand Register
4.61. The regulations aboutwhich CostaRica now complainsare necessaryto
protect the environmentand combatthe aforementionedillegalactivitiesin and
aroundthe SanJuan RiverWildlifeRehge. The requirementto stop and report
at Nicaraguanmilitary posts uponentry and exit is an obviousexample. These
veryminimaland non-intrusiverequirements,pursuanttowhichindividualsmust
merely statetheir namesandidentifyanypassengersand cargotheyare carrying,
are crucial to monitoring activitieson the river. This reporting provides
Nicaraguanauthoritieswith information on who entersthe RiverRefuESe a,ndin
what areas, in order to ensure that theriver is being used only for lawkl
purposes. In particular,thereporting allows Nicaraguato assurethat allpersons
(includingNicaraguans) whoenter theprotected areaalsoleaveit, sinceno oneis
allowed to remain. As explsLinedby a former Commander of Nicaragua's
SouthernMilitaryDetachment:
""Whenthe vessel completedthe San Juan River portionof its
excursion,it stopped againat theNicaraguan military post located
at that point, at Delta, to register the tourists' departure tod
assurethat everyonewho enteredNicaragua was exiting, and that
"'See ibid.
34SeePublicProsecutor'sOfficeSanCarlosRio SanJuanProvince,"CriminComplaintNo.
000106(hereinaft"CriminaComplaint"),21December2006.NR, Vol.11,Annex43. none of them had been left behind in Nicaraguan territory, This
was necessary as a securitymeasure to asswe that there were no
unauthorized entries into the protected area of thendio Maiz
BiologicaI~eserve."~~~
@) TheRequirement To ObtainaDepartureClearanceCertiJcute
4.62. The requirementto obtain adepartureclearancecertificateservesa related
fbnctian, and is crucial to protecting the riand surrounding reserves. To
obtain acertificatboatmen using theSm Juanmustpermit an inspectionof their
vessels for purposes of, inter a,nsuring that theyare not carrying any plants
or animalstaken fPom Nicaragua's protected area,ncludingthe river itself. The
inspection also servesto assure that the vessel is not leaking or otherwise
dischargingfuelor otherenvironmentallyharmfulsubstancesintothe river.
4.63. Costa Rica imposes similar requirementson vessels entering her rivers
fromthe SanJuan; they must stop at Costa Rican border posto obtain a Costa
Rican departure clearance certificate.Yet Costa Rica complainsabouther vessels
having to stop at Nicaragua's border posts for the same purpose. Costa liica
alleges that Nicaragua'sregulationsviolate her "related rights"under Article VI
of the 1858 Treaty '70 land indiscriminatelyon either side of the rivat the
portionthereof wherethe navigationis common," To be precise, Costa Ricadoes
not claim that Nicaragua has violated herright "to land" on the Nicaraguan side
ofthe river, butshe arguesthat the right "to land"necessarilyimpliesa right "not
to land," andthat this implied and "'related"riisthe one that Nicaraguahas
violatedby obligingCostaRicanvessels"to land"at theborder posts.
34LargaespadAaffidavit,parNR,Vol. 11,Anne72.
1984.64. Besides the fact that Nicaragua's registration and departure clearance
regulations are justifiableand reasonableexercisesof her sovereigntyover the
river, it:ifarfrom clear that theright "to land'?on the Nicaraguan side ofthe
river has as a necessary corollarythe right "not to land" on that bank, There is
nothing in the 1858 Treaty that would prohibitNicaragua fromestablishing
border controls and check points, or hrn obliging Costa Rican vesselsto stop
there,to protect herlegitimatesovereigninterests. Nicaraguais sovereign in her
own territory, and can, in this capacity,establish such limitationson activities
conducted within her territoryas are reasonable andprotective ofher legitimate
sovereigninterests.As hasbeen established, the regulationsereunderdiscussion
are fully justifiedby Nicaragua'sinterests in protectingthe fragile andunique
naturalenvironmentand,as discussedbelow,her interestsinpreventionofcrime,
navigational safetyand securityof theborder.Theregulationsviolateno rights -
"related"or otherwise - ofCostaRica.
TheProhibitionofNavigation at Night
(c)
4.65. Navigation isprohibitedon the San Juan after dark345. This appliesto
everyone,Nicaraguansas well as Costa Ricans. Beyond theobvioussafetyand
security abjectives achieved by this regulation (discussedbelow), it is also
necessary for environmentalprotection. As testified by Nicaragua's military
commanders, who are responsible for law enforcementand environmental
protectionon the river:"[1]tis duringthe night, when detection ismost difficult,
thatthe protected flora andfaunaof the IndioMaizBiological Reserveand the
SanJuan River are most vulnerableto poaching.7734" "[Mlost criminalactivity
34SeeActionPlan,Art.7.NR, Vol.11,Annex48.
34%ernbrefiAffidavitpara.9.NR,Vol.11,Annex73.and environmental depredation (including hunting and fishing for protected
species inthe Indio Maiz BiologicalReserve and the San Juan River) took place
atnight.7734A7lmost allincidentsof illegaloccupationofland insidethe protected
areas have also occurredat night, with individualsusing the cover of darkness to
move in and clear the trees around their camp as secretly and as quickly as
4.66. The prohibition on navigation at night cannot, of course, stop all
environmental depredationwithin the San Juan River Wildlife Refuge and the
Indio Maiz Reserve, but it makes such illegal activity more difficult, sinceany
boat observedontheriver at nightpromptsimmediateattention and investigation.
(d) TheProhibitionof Certui~ aishingActivities
4+67, As discussed above,populations of certain fish, crustaceans,and aquatic
mammals have dropped significantly overtime due to the growth in human
settlementon CostaRica's side of theriver,and the increasedfishing in the San
JuanRiverthat has come with it. In orderto conservethe fish and other animals
which live in ormigrate through the riverMAWNA has prohibited commercial
fishing or shrimpingin the river, while allowing subsistence fishing by local
Costa Rican residents, providedthat they fish from the Costa Rican bank of the
river?49. Fishing fiom within the San Juan River Wildlife Refuge, whether on
347SiinchezAffidavit,paraNR, Vol.11,Annex77.
348 See CriminalComplaintNR, Vol.11,Annex 443("On the seventeenthof December of two
thousandandsix,inthehoursof the nigatgroupofpersons originatingfromthe sisterRepublic
of CostaRicaenteredournationterritorthroughthe sectorof La Penarmedwith machetes,
shovels, hoes, rakes, rope, hammocks, plastic oarticleor tools thwere used bythe
accused.."I.
349~eeLargacspadaAffidavit, para. 10. Vol. 11hex 72; see also MembreGoAffidavit,
para.8.NR, Vol. 1Amex73; seealsoBorgesAffidavitpara8. NR,Vol. II,Anne67,boats in the river or from the Nicaraguanshore is stJictlyprohibited35o.The
prohibition applies toeveryone, including Nicaragmans.In the past, MARENA
allowed some fishing in the rehge, but the regulations were tightenedwhen it
became clear that MARENA7stolerancewas being abused by boatmen fishing
commercially, andlorusingfishingas a false coverforilegally enteringtheIndio
Maiz~eserve'~'. By permittinglocal residentsto fishfor subsistence purposes
fromCostaRica's bank of the river, while prohibiting all otrormsof fishingin
the liver,Nicaragua has endeavouredto achieve a reasonable balance between
environmental protection (in this case, protectionof endangered fish,aquatic
mammal,andcrustacean species) ad local human needs.In doingso,Nicaragua
surely has notviolatedanyrightsof Costa Rica orhernationals.
4.68. In her Memorial, CostaRicaclaims a "customaryrightto fish initswaters
for subsistencepurposes for residents livingon the Costa%can bank of the San
~uan"~N ~i~caraguadenies thatsucha right exists. Costa Ricacertainly has not
established its existence, It cannot be found in the Treaty of Limits or the
CleveImd Award. Indeed there isneitheran expressor evena logicalconnection
between this claimedright and the "right of free navigation.. .con objetm de
comercio," that is included inthe 1858Treaty of Limits, andupon which the
Application in this case is based. In .Factt,here is no mention of any kind -
explicitor implici- ofallegedfishingrightsanywhereinthe Application. Inher*
Reply, Costa Rica makes no attempt to relate the so-called"customaryright to
fish" to thApplication, to the Treatyof Limits,or to any navigational,or other
35See MembrctiloAffidavipara 8. NR, Vol.11,Annex73 ("Theonly exceptionsaretwo
specificallydesignsportfishingzones,oatSan JuandelNorteandoneon theupperportion
of thriverwhere bothbanksbelongto Nicaragua,where licensedsportFishingunderstrict
limitationsispermitduringcertainperiodsof theyear").
35SeeBorgesAfidavit,para8.NR, Vol.IT,nnex67.
35CRM, para.4.118(3).rights thereunder, It is certainlynot necessaryto rule on CostaRica'sbelated
claimto customary fishingrightsinotderto decidethequestionofwhetherCosta
Rica's navigation right has beenviolated. In these circumstances,Nicaragua
considersthat CostaRica's attempt toexpandher Applicationto cover an alleged
'"astornary right to fish" is inadmissible underArticle40 of the Statute and
Article 38, pasagraph 2, of the Rules of Court. It is therefore only in the
alternative thatNicaraguahas answeredCosta Rica'salegations concerninga
"customaryright to fish." It is difficultto understandwhat"customary rights"
Costa Rica is referringto. Thereisnorecordof native population settlementsin
the area and nonethat were present in 1858. As that time there were no
significant populationcentres or even knownsettlements along the river. This
needto fishfor subsistence,isnewand dueto theestablishmentof settlementson
the CostaRica.nbank of the riverduringthe last decades. The novelty of this
need is probably what caused Costa Rica to exclude this claim from her
Application.
4.69. Illegal trafficking ohgs and ms on the San Juan is a problem.
Nicaraguan militarypersonnel are vigilant intheir effortsto deter and prevent
these activities, andhave periodically captured smugglers using the river to
transport theirillicitcargoes35'.Apartiallist of criminalapprehensionsby the
Nicaraguan Army on the San Juan Rilieris set forth in Annex 74 to this
RHO inder.
353SeeMoIinaAffidavit,AnnextoAffidaviNR, Vol,11,Annex74.
2024.70, In addition to the need to control illicdrug and arms trafficking,the
Nicaraguanmilitarymonitorstrafficontheriverto guardagainstall-too-common
crimes liketheftand assault alongthe river. Therehavebeen instances inwhich
touristsvisitingtheareahavebeenkidnapped. On 1 January1996,forexample,a
group of Geman tourists wasrobbed by a gangof masked and heavilyarmed
individuals,who then kidnapped two women seven kilometresfrom Boca San
Carlos, where bothNicaraguaand CostaRica maintain securitypostsacrossthe
riverfromoneandanother354.
1. The Requirement TOStop andRegister
4.71. Nicaragua hasrequiredindividualstravellingthe riverto stopand report
themselves sincebefore the 1960s. This requirementappliesto everyonewho
navigates on the river -- including Nicaraguans. To this day, it remains a
hndamental element of Nicaraguanlaw enforcementeffarts inthe area. The
requirement to stop and report at Nicaraguan military posts has an obvious
deterrent effecon criminalactivitiesof alkinds. lndeed,it is quite tellingthat
Costa Ricaherselfhas alsodeemed itnecessaryandappropriateto implementthis
samerequirementon her own riversconnectedto the San Juansince atleast the
1960s""" The requirement to stopand register isparticularly importantto the
preventionand detectionof criminalactivitydueto the geography ofthe river, It
winds its way through remote, heavily vegetated (on the Nicaraguan side),
sparsely populated (on the Costa Rican side) territoryformore than 220 h.
Nicaragua'sArmypostsarespreadoutfiornoneanother,leavingvaststretches of
the river far removedfromlaw enforcementofficials. Onlyby keepingtrack of
35See"Tourisand GuideKidnapped",(LNacibn,3January1996).NR, Vol11,Annex16.
35SeeAburtoAffidavit,pa3.NR, Vol. 11,Annex65.vessels asthey enterand leavethe river can Nicaraguan authorities effectively
monitor them to assure theydo notengageinunlawfulactivities.
2. TheRequirement To ObtainaDeparture Clearance Certij42cate
4.72. Theneed for eachboat -- regardlessof nationalit--to securea departure
clearancecertificatealso enswes that the individualsnavigatingon the riverare
notcarryingillicitcargo. To obtaina certificate,vesselmustbe inspected, inter
alia,to assureit is not transporting prohibited items.Nicaragua establishedthe
requirementto secure a departureclearancecertificate at least fiftyears ago.
Costa Rica hashada similarrequirementfornavigationonherrivers --tributaries
ofthe §an Juan --for atleastfortyyears(asshown by her ownevidence)356.
4.73. As statedby Captain Mario GarciaLopez, responsible for supervising
severaloftheNicaraguan Army's monitoringposts alongthe SanJuan River:
"[Bjoats are required to obtain Nicaraguan departure
clearance certificatesbeforethey maynavigate on the San
Juan River. This includes boats operated by
Nicaraguans....Allboats mustalsoidentifytheir passengers
and any cargo that they are carrying. This is a security
measure designed to ensure that &ere is no illegal
traffickingofpersons or goodson the river,and to ensure
that no one who entersand exits the river has enteredthe
Indio Maiz Biological Reserve,located on the northern
bankoftheriver'scourse, where access is not a~lowed.""~
356See"DeparturelearancCertificatissuedbytheCostaRicanRevenueGuard. CRR, Vol.
11,Annex65(b);see also AbuxAffidavipara3. NR, Vol.11Annex 66;seealsoMembreiio
Affidavi,ara4.NR,VoI.11,Annex73.
357SeeAffidaviof CaptainMariGarciaLbpez9 March 2008(hereinaft"GarciAffidavity'),
para.4.m, Vol.11,Amex 70.4.74. The measuredoesnotmaterially burdencomercis1 boatmenwho use the
river.As attestedby aboatmanwho transportscommercialgoodsonthe riveron
a weekly basis,""Im not awareof any occasions when any of the Costa Rican
boatmen who navigatethe river taking goods eitherto Nicaraguaor Costa Rica
have been preventedfromcompletingtheirtsip, byNicaraguanauthoritiesposted
along their routes."358 Nor does the departure clearance certificate impose
hardshipson localCostaRicanresidents. Nicaraguaprovidesdepartureclearance
certificateto localresidents--i,e.CostaRicanswholive ontheright bank ofthe
river-- as a courtesyandat no cost. Thesecertificates arevalid forone month,
andarepermanentlyrenewable, withoutneedfor inspectionofthelocalresident's
vesse1.3~~
4.75. Despite her pretensions tothe contraryin these proceedings,Costa Rica
hasexpresslyagreedthat,for lawenforcementpurposes,andespeciallytocombat
drug trafficking, Nicaragua shouldenforce her requirement that all vessels
navigating on the San Juan obtain a departure clearancecertificate,and report
their presence at all Nicaraguan Army posts passed during the voyage, This
agreementis reflected inthe Find Minutesof the FourthBinationalNicaragua-
CostaRica Meeting,held on 12 and 13May 1997~". TheFinal Minutes, which
were signed by Foreign Minister Emilio Alvarez Montalvhnof Nicaraguaand
Foreign Minister Fernando NaranjoVillalobosof Costa Rica, cover avariety of
matters agreed to at the Meeting.On the subjectof Drug Trafficking,theFinal
Minutes reflectthefollowingagreement:
35AcevedoAffidavitpara.4NR,Vot. 11,Annex66;see alsNR,para.4.89.
35See Shchez Affidavit,para.NR,Vol. TI,Annex77;seealsoMembreEiAoffidavit,para.5.
NR,Val,11,Annex 73;Largaespada ffidavpara.8. NR,Vol. 11,Annex72;GarciAffidavit,
paras6-7.NR,Vol. 11,Annex70;TalaverAffidavitara8. NR,VoI. 11,Annex78.
36FinalMinutes&omthe IVNicaragua-Costa caBinationaMeeting.NR,Vol.IT,Annex4. "'Regardingthe problem raised by the Costa Rican
delegationabout the existence of places that require the
presence of authorities competenton this subjectit was
agreedthatNicaraguawill cany out efforts directedtoward
establishing posts in specific locations,o broaden the
coverageinthefightagainstthis crime.
(..*I
In relation to the flow of vessels it was considered
necessarythat these boatsnavigate duly registereby the
posts thatissuehe correspondingcertificatesofnavigation,
as applicable, theposts ofan Juan del Norte,San Carlos
andSarapiqul.9,361
4,76, Having recognizedand accepted the necessity of these Nicaraguan
regulationsand having agreedto theirenforcementi:n 1997,CostaRica'ssudden
change of heart --and newfound theorythat they constitutea violation of her
rightsunderthe 1858 Treaty-- areindefensible and shoulbe disregarded.
3. TheProhibitionof Navigation atNight
4.77. Much likepoachers whouse darknessto their advantage, traffickersin
arms, drugs,and humanbeings alsoprefer thecoverof nightwhenit is easier to
navigate the river without detection. By prohibiting nighttime navigation,
Nicaragua isable to betterprevent theseillicit activities, Customarytrafbyc
local residents, commercial boatmeno ,r tourist boatsnormally occurs during
daytimehours, As statedby a localresidentwho was a commercial boatmanon
theriverin the1960s andcontinuestousethe rivertoday: "Itwas rareforaboat
to navigateatnight. Local residentsmd otherboatmen madetheir tripsduring
36Ibi demphasisadded).the day, and onlyused the river at nightin cases of emergency.'J62Nicaragua
continuestopermitnavigation at nightin casesof emergency.363
4,78. As dominionandsupremecontrol(sumoimpsria)overthe Sm JuanRiver
are entrusted toone State -- Nicaragua -- it is she who bears responsibility for
ensuringthe safetyofnavigationontheriver.
4.79. The river poses a wide array of hazards, including the many, shifting
sandbars that characterize itslower reaches, the presence of fallen trees
throughoutits course, and alligatorsthat lurin itswaters. Asone might expect,
theboats thattravel theriverarein variousstatesofrepair,andsomeare not in a
candition to operatesafely. Accidents,drownings and even animalattacks are
not uncommon. Navigation at nightisparticularlydangerous"4.
1. The Requirement toStopand Register
4.80, The requirementto stop and registerat Nicaraguanposts ensuresthat all
passengersare accounted foron each leg of thejourneyon the SanJuan. Costa
Rica's statement thatthe Nicaraguan Army officers at the post requireschool
children passing the postto stop andreport dailyis true365.In additionto the
3GAburtoAffidavit,para.NR, Vol.TIA,nnex65.
36See MembrefioAffidavitpara9. NR, Vol. 11,73; see also LargaesAffidavipara.8.
NR,Vol. 11Annex72.
36SeeTalaveraAffidavit,para8PSRV,ol.11Annex 78;seealsoMembrefioAffidavipara.9.
NR,Vol.11,Annex 73.
36SeeCRR, para.4.48.possibilityof children(or anybody else)falling overboardand drowning,several
childrenhavebeen attackedby crocodiles inthe SanJuan andits adjoininginlets.
Within the past year, a 4-year-oldboy and a 13-year-oldboy were killed by
crocodiles3". The riveris especiallyhazardousfor children,who sometimespilot
their own small craft, and Nicaraguan officials are particularly vigilant in
protectingthem againstthe fate of those whohave already lost their livon the
river.
2. TheRequirement To Obtaina DepaP-fure Ckeamnce CevtiJa'cate
4.81. The requirementto obtain a departure clearance certificate helps ensure
that the boats navigating the river are seaworthyand capable of safe operation.
As previouslystated,the vesselsused on the San Juan River are invarious states
of repair--and disrepair. As testifiedby CaptainMario Garcia Lopez, all boats
are required tostop at the Nicaraguan postat their pointof entry onto the San
Juan River. "The departwe clearance certificate certifiesthathe boat has been
inspected,and that it meets all Nicaraguansafetyrequirementsfor navigation on
the river'"67. To secure a departure clearance certificate, boat owners must
present operators' licenses and relevant information about the vessel. These
minimal stepsare reasonable and necessaryto make traffic on the Sm Juanas
safeas possible,which is Nicaragua's sovereignright and responsibility.
4.82. Searches of vessels, which are carried out as part of the departure
clearance process, also serve the interests of safety. As testified by Colonel
3G6See'LCro~~diDleevoursChiinthe IndioRiver", (LaPrensa, 10Ap2007). NR,Vol. 11,
Annex25; seealso'Trocoditekil13-yeaoldboy whowas bathinintheriver",(LNacidn,5
May2007). NR, Vol.XI,nnex26.
367GarciAffidavit,para.NR, Vol. 1Annex70.Ricardo Shnchez, a fonner Commander of the Southern Military Detachment:
"For safety reasons, all tourist boatsncluding those operatedby Nicaragua from
El Castillo or San Juan del Norte) had to stop atthe army post closest to their
point of entry onto theriver and submit to a safety inspection, which included a
determination that the vessel was not carrying any weapons, explosives or other
flammable The treatment is the same for Nicaraguans as well as
Costa ~icans~~~.
3. TheProhibitionofNavigation atNight
4.83. As discussed,navigationof theriver can be dangerous;navigation at night
is much more so. As anyone personally familiar with the river can attest, once
the sun sets darkness envelopes the river very quickly. At best,the unaided eye
can see ahead only a few metres making it nearly impossible to detectthe many
obstacles on the river370. Very few of the boats on theriver have navigation
lights, which ineans not only that they cannot see the water in fronof them but
also that other boats cannot see them, Increasing risks of nighttime collision"'.
Nocturnal navigation isparticularlydangerous in thedry season, when the waters
of the river are shallow, and sand bars make much of the river close to
impassable. If one cannot see the movement of the current, it is extremely
difficultto find the navigablepaths in the water and avoid the sand bars.
36%knchezAffidavit, para7NR, Vol.11,Annex77.
3" SeeMembrefioAffidavit,para9. NR,Val.11,Annex 73;seealso AcevcdoAffidavit, para 3.
NR,VoI.11, Annex 66.
370SeeLargaespadaAffidavit, paraNR, Vol. 11,Annex72;see also MembreiioAffidavit,para.
9. NR, Vol. 11,Annex73.
37'Ibid.4.84. The pointis emphasizedby Brigadier GeneralMembrefio,Commander of
the SouthernMilitaryDetachmentbetween 1992and 1995: I
"[Nlavigation is not permitted afkr dark, This prohibition
applies to everyone, Nicaraguans included. The river is
treacherous to navigate at night, since here are no lights,
and fallen logs and sand bars, invisible in the dark, are
prevalent, as are crocodiles. By longstanding custom
nighttime navigation of the river has not been practiced,
exceptin emergency situations. Nicaragua authorizessuch
emergency use of the river at night. Otherwise, it is
prohibitedmainlyfor safety
PhotographsAbove: Thephotographsabove were taken on theSanJuan Rivea rt 5:40,
6:06,and 6:20in March, 2008.
4.85. Nowhere in her written pleadingsdoes CostaRica deny that navigation on
the San Juan River is difficult anddangerous, and even more dangerousat night.
In fact, CostaRica haslong recognizedthat navigation onthe riverisfiaught with
risks.As she explainedto President Clevelandin 1887: "...it is well known that
the navigation of the Sm Juan River encounters many obstacles, not only on
accountof the shallownessat certainplaces,but also owingto its rapids and other
dangers'"73. The natural "obstacles" cited by Costa Rica - shallowness and
rapids,both renderingthe river impassable in places- have not disappearedinthe
past 120 years. Nor have the crocodiles. Nor has the darkness that descends at
372
See LargaespadaAffidavitpara.8. NR, Vol. 11,Annex 72;seeaisoMembreiioAffidavit,
para.9.NR, Vol.XI ,nnex 73.
373Argumentof CostaRica,op.citpp. 150-163..NR,Vol.XI,Annex5.night become any more penetrable,These facts arewell known to Costa Rica,
making it disingenuous for her to challenge Nicaragua's promotionof
navigationalsafety,and the protectioof humanlives,by prohibiting navigation
ontheriverafter dark,exceptin emergencies.
D. BORDEP RROTECTI O NDSECURITY
4.86. Itis undisputed thatthe San Juan River is part ofNicaragua'ssovereign
territory, To enterthe river fkomCosta Ricais to crossaninternational border
and enter Nicaraguaherself. As does every sovereigState,Nicaraguamahains
cerkainrequirementstoregulate entryintoherterritory.
I. ImmigrationControls
4.87. Nicaraguanimmigrationofficials atthe borderposts alongthe San Juan
River follow the same proceduresthat are followed at all other border entry
points. Just as all non-nationalsare required to obtaina tourist card when
entering Nicaraguaat the Managua InternationalAirport, orat other points of
entry, so too when they enter Nicaragua via the SanJuan. Contray to Costa
Ricst'sassertionsthat this policy began onlyin the mid-1990s,it was actually
establishedasearlyas 1979,if not earlier,underDecreeNo. 161~~~T .he decree
required all foreign travellersto securea specialtouristcard when entering
Nicaraguanterritory. The cost of the tourist card has varied over time. The
current cost iUS$ 5375. The requirement isthe same for all non-Nicaraguan
37SeeNicaragua,DecreNo,161,l.Nov. 1979NR, Vol.11Annex52.
37SeeNicaragua,LawNo. 495:GeneralTourismLaw,2 July2004,Art.21te). NRVol.11,
Annex55;seealsoNicaragua,RegisterNo. 3743.Vol.11,Annex53.nationals, regardless of their country of origin.Many States impose similar
requirements,or chargehigher fee$76.
4.88. Nicaragua makes an exceptionfor residents of Costa Ricm riparian
communities,who aretreated likeNicaraguansinsofaras theirnavigation onthe
San Juan is concerned3". In fact, as testified by Franklin Ponce Ortiz,
Immigration DispatchInspector for San Juan River Province: "[I]mmigration
authoritieson the river donot regulatethe local residents. Riverresidents,far
their own safety and forthe security of the territory, are simply required to
register with thmilitaryofficialwhen theypass a militarypost'"78.According
to Army CaptainMario Garcia Lopez, Chief of the SecondBorder Sectorof the
Sm JuanRiver:
"Nicaragua does not require the Costa Rican residents
alongtheriverto havetheirboats inspected, or topay afee
for a departure clearance certificate,or to register with
Nicaraguanimmigration, or to have a consular visawhen
they navigateonthe SanJuanRiver. If aresident passes a
militarypost,he is requireto simply noti@ thepost of his
passage. A11 local reside~rtsare provided a courtesy
departurecertificateortheirregular useof theriver,which
isvalidfuronemonthand ispermanently
376See, e.g.United StateDepartmentof State,"Fees forVisa Services,"availabat:
http://~avel.state.gov/visdlemp/type seltaloeDsu1ch63.hisrI;of Foreign
Affairs"Applyingfora visa," availablehttp://www.rninbuza.nI/en/weIcome/comingt,
visas~x~consular~se~~i~es/applyi~~ sg~flor~aiivi~ofFhorignRelationsof
Colombia,"Proceduralinformatiforvisas," availaat:hrcp://www.car~cilleria,gov.cotWeb
ContentManager/webapp/displayYjsp? s936&20p=l;spialo1MinistryofForeign
Relationsof the Republic of El Salvador, "Types of Visas CA4," avaiIable at
h~:llwurw.rree.gob.svlsitio/sitiowebrree.n~Eipagesisvisas~tiposca4.
'"SeeTalaveraAfidavit,para.8. NR,VoXIAmex 78;seealso GarciaAffidavit,parNR,.
VoI. 1Annex70, seealsMembrefioAffidavipara9.NR,VoI. 11Annex73.
37AffidavitofFranklPonceOrtiz,7 March2008(hereinafrPonceABdavit"),para4. NR,
Vol.11,Annex76.
37GarciaAffidavit,pa6..NfZV,ol.TAnnex 70.4.89. Likewise, Nicaragua presently exemptsfrom her immigrationregulations
and proceduresthe Costa Rican merchantswho regularly use theriverto transport
goods fromone communityto another, since they are alslocalresidents whoare
exempt fkomimmigrationrequirements on that basis. Duringthe last ten years,
there have been approximatelyfour Costa Rican boatmen regularly transparting
goods on the rivdaO. One transports and sellsboat fuel from Puerto Viejo de
Sarapiquito local boat aperatoxs. Anotherowns a small "mom and pap" grocery
store in La Tigra, on the Costa Rican bank, and uses the river to resupplyhis
wares381.There are two other Costa Ricm boatmen whoship shellfishfrom San
Juan del Norte, Nicaragua to Puerto Lindo, Costa~ica~". None of these Costa
Rican commercial boatmen is required to secure a tourist card, to obtstina
Nicaraguan visa, or to pay for a departureclearance
4.90. Inaddition to the tourist cards, which Nicaragua requires of all non-
nationals (except as indicated above), entry into Nicaragua also requires a valid
visa, depending on the country of origin. Local Costa Rican residents and
commercial boatmen are exempt fromthe visa requirement,as well as the tourist
card requirement. Notably,the entryvisa requirementaffects very few of the
foreign touristwho enterNicaraguavia the SanJuan River,includingthe tourists
who enter in Costa Rican tourism boats. Nicaragua requires entry visas forthe
38SeeAcevedoAffidavitpara 2. NRVol.11,Annex66;seealsoGarciaAffidavipara.3.NR,
VoX .IAnnex70.
3gSeeGarciaAffidavit,para.7. NR,Vol.Annex 70.
38SeeAcevedo Affidavipara2.NR, Vol.11,Annex66.
38SeeGarciaAffidavipara.4.NR, Vol. 11,Anne70.nationals of only a very small number of States who frequent the rive?". As
testifiedby ColonelSinchez, who commanded the SouthernMilitaryDetachment
fiom 2002 to 2007: "Very rarely were [tourists]required to show a Nicaraguan
visa, because Nicaraguadoes not require tourists from North America, member
countriesof the European Union,Canada or Australiato obtain visas, and almost
all of the touristson these vessels were from those countries, with very few
exceptions."3a5 Costa Rica has not demonstrated that the tourist card or visa
requirementshave discouragedtourists fromcorningto the SanJuan. Indeed, she
has providedno evidence whatsoeverto supportthis claim. Nicaragua's evidence
thoroughly refutes it. As shown earlier in at paagzaph 4.33 and the
accompanying table,Costa Rican tourismto the SanJuan actually experienced a
substantialgrowthbetween 1998and2004, while these Nicaraguan immigration
measures were in effect. Thus, in contrast to the unsupported claims made by
Costa Rica that Nicaragua's immigration requirements have "practically
destroyed"tourism to the San ~uan~'"towism on Costa Rican vessels has quite
obviously continued toflourish.
4.91. With the exception of residents of local settlements and commercial
boatmen, Nicaragua requires CostaRicannationalsto have an entry visa to eater
Nicaragua. The requirementthat non-localCostaRicans have a consular visa to
enter Nicaragua isbased on reciprocity. Costa Rica requires an emtryvisa fiom
allNicaraguan travellers entering Costa Rica.
384SeeNicaraguaDecreeNo. 57-2005,31August2005. NR,Val. 11,Annex 56DecreeNo. 57-
2005 delineatethree immigrationcategories. Tmajorityof Statewhose nationalsvisit
NicaraguaarelistedunderCategoA.
3" SbnchezAffidavipara7. NR,Vol.11,Annex77.
'"CCR,para.4.12(iii). 2. TheRequirementToFly theNicaraguanFlag
4.92, Nicaragua has required certain larger vesselsto fly the Nicaraguan flag
while navigatingon the San Juan River. The requirementhas only been applied
to those vessels that have masts or turrets at the stern387.This excludes local
residents and commercial traders who generally travelin small woodenpangas
(simple rudimentary boats, generally with a single outboard motor) which lack
the means to display flags. According to Colonel Ricardo Sanchez, a former
military Commander for the region: "Inpractice, this meant only that the Costa
Rican tow boats kept aNicaraguan flag on board, and hoisted it during the time
they were on the San.Juan"388T . he inconvenienceimposedon CostaRicanboats
is therefore trivial. The requirementisknown by all boat operatorswho use the
river,and has never impedednavigation. CostaRica has not identified a single
incident in which Nicaraguan authorities prevented a Costa Rican vessel from
navigation on theSan Jum because of failure orrefusal to displaya Nicaraguan
flag.
4.93. The requirementto fly her flag duringnavigationon her waters, including
the San Juan, is an attributeof Nicaragua's sovereignty, and is a matter of
international customand practice. Nicaraguapermits foreign vesselsto fly their
flagsof registrywhile navigatingon the San Juan, as wellas the Nicaraguanflag.
Thus, Costa Rican vesselsmay and do flythe CostaRican flag, as well as that of
Nicaragua. Flyingthe Iatteris a gestureof respect for thesovereigntyofthe host
State, Nicaragua finds itdisturbingthat Costa Rica's objects to this reasonable
and non-burdensomerequirement, It is emblematic of Costa Rica's repeated
38See ActionPlan,opcitArt.6. Nit, Va11,Annex 48,
Shchez Affidavitpara.7.NR,Vol. 11, mex 77.efforts, since 1998, to expand her "'rights"on the San Juan at Nicaragua's
expense. Particularly troubling are Costa Rican attempts, through her
government-supportedtourism promotion effortst,o depict the SanJuan River as
part of Costa Rica. In 1999, for example, the Nicaraguan Minister of Tourism
protestedthat a CostaRicantravel agency was promotingits San Juan Rivertours
with amap depicting the riveras belongingto Costa~icd~'.
4.94. Costa Rica'sApplication makesno referenceto Nicaragua's requirement
that allforeign vessels fly the Nicaraguan flag (as well as their own) while
navigating on the San Juan, The Applicati oankes no claim that this is a
violation of her rights, let aloneof her right of navigation under the Treaty of
Limits. Rather, the claim post-dates the Application, and is styled by the
Applicant Stateas a form of harassmentthatNicaragua inventedto punish Costa
Rica for bringingthis caseto theCourt.Nicaraguarejects this suggestion,aswell
as Costa Rica's implication of bad faith on her part. In fact, Nicaragua's flag
requirement has deep historic roots,of which Costa Rica cannot help but be
aware. In her pleadings to President Clevelandin 1887, Costa Rica referred
approvinglyto a note of protest that Nicaragua sentto the Government of the
United States of America in Washington, dated7 October 1863. In this note,
Nicaragua protested thatthe flag of the United States had been used while
navigatingon the San Juan, declaring that: ''Nicaragudoes not feel disposedto
consentthat any other flag,excepther ownandthatof Costa Rica, asa bordering
state, should floain the navigation of her interiorwater^'" A^'.Costa Rica's
389See"AnotherCostaRicanMap 'TaketheRiver1",(ENirevaDiario, 26August1999). NR,
Vol.11,Annex 23; see also Lefrom EduardoMontealegreForeignMinisteofNicaragua,to
LorenzoGuerrero,Directoofthe Nicaraguan InstituTourism,1September1999and Email
from AlfredoFerretiLugo, SecretaryGeneralof the NicaraguanInstitute of Tourism,to Cafio
BlancoMarina,13September1999. NR,Vol.11,Annex14.
390Argumentof CostaRicaop.cit.,p.251NR, Vol.11Annex 5(emphasisadded).ownpleadingsto theArbitratoracknowledge,sinceat least 1863,shortlyafterthe
Treaty of Limits was executed, Nicaraguahas considered it inherent in her
sovereign rights overher own "interiorwaters," includingthe §an Juan River,to
decide whose flag may fly on vessels navigating in those waters, and she has
carefully indicated that hers togethewith Costa Rica's (notthat of Costa Rica
alone)could be flownovertheSanJuan.
4.95. Costa Rica contends in the Rep& that the comparison in the Counter-
Memorial between the rules of the law of the sea and those governingriver
navigationis "extravagant7"". Butwhy so? To the contrary, it is both reasonable
and appropriate to assimilate navigation on a river, over whicha State is
acknowledgedto have exclusive dominionand supremecontrol (sumoimperio),
with internalwaters or territorial seas.As the Courtrecalled in its1986Judgment
in Nicaragua v.United StatesofAmerica:
"The basic legal concepts of State sovereignty in
customaryinternationallaw,expressedin, interalia,Article
2, paragraph I, of the United Nations Charter,extendsto
the internalwaters andterritorial seaof every State andto
tbe air space about its territory. [...T]he1944 Chicago
Convention on International Civil Aviation ,. in
conjunction with the 1958 Geneva Convention on the
Territorialea,Wher specifiesthatthe sovereigntyof the
coastal Stateextends to the territorial sea and to the air
space above it,as does theUnites Natians Conventionon
the Law of the Sea adoptedon 10 December 1982. The
Court has no doubt that these prescriptions of treaty-law
merely respond to hly established and longstanding
tenets ofcustomaryinternationallaw.7J92
"'Militarand ParamilitaryActivitieand lagainstNicaragua(Nicaraguv.UnitedStates),
merits,judgmento27June1986,ICJ Reports1986,p1 11,para.212.Clearlythesameholdstrueregardingriversinwhich ariparianhasexclusive
jurisdictionandsovereignty- asisthecaseofNicaragua andthe San Juan,as
explicitlyprovidedinArticle VI ofthe Z858 TreatyofLimits.
4-96. In sum, by requesting foreignStates- includingCosta Rica - to flyher
own flag, together with theirs, Nicaraguais merely exercisingher sovereignty
over the river, withoutby any means impedingnavigation. Nicaragua's flag
requirementviolatesnosightsof CostaRica,
4,97. Each and everyoneof the regulations with which Costa Rica take ssue
is expressly designedand implemented to protect Nicaragua's legitimate
sovereign interests. They have also been crafted to avoid imposing any
significantorunreasonabIeburdens on.CostaRica orhernationals;andinfact,no
materialburdens havebeen imposed.Theregulationsprotect not onlyNicaragua
but also the peoplewho enter theriver expectinga safe journey, the local
residents who desire a secure neighbowhood, and the members of the
international communitywho place great value on consewingthe river's rich
biological diversitforCture generations.As shown:
a. The requirementthat a11persons navigating on the river report to
Nicaraguan borderposts is a reasonable measure to protect the
environment,prevent criminal activita, d ensurenavigationalsafety;
b. The requirement that all vessels obtain a departure clearance
certificate is alaoreasonablemeasureto protect the environment,
prevent criminal activitandsecurenavigational safety; c. The prohibition of navigation atnight (exceptin emergencies) is a
reasonable measure to protect the environment,prevent criminal
activity, andsecurenavigational safety;
d. The prohibition on fishing from boats on the river is a reasonable
measureto protecttheenvironment;
e. The requirement thatpersons enteringthe river undergo immigration
processingis a reasonablemeasureto protectNicaragua's bordersand
her sovereignty;and
f, The requirementthat vesselsofa certainsize flytheNicaraguan flag -
-aswellas theirflagof registry --is areasonablemeasure to manifest
andprotectNicaragua'ssovereigntyovertheriver.
4,98. Nicaragua takes her obligation to safeguard the river, its users and
residents,and its environmentseriouslyand has designedher regulationsto meet
this responsibility. ThatCosta Rica wishesto sidestepthese regulationsbecause
she finds themsomehow inconvenient,or inconsistentwithher own pretensions
to extend her "rights" over the river, is clear. However,Costa fica's desireto
exempt herself fiom these basic environmental,security, safety and border
protectionmeasurescamot diminishNicaragua'sright,asthe exclusivesovereign
power, to reasonably regulate navigation on the San Juan River. CHAPTERV:
COSTARI[CA9S ALLEGEDRIGHTS OF PROTECTION, CUSTQDY AND
DEFENCEOFTHE SANJUAN RIVER
Introduction
5.1. Though the vehicleof this case, Costa Rica seeks to expand herrights
under the 1858 Treaty,as interpreted inthe1888 Cleveland Award,to an extent
that would negateNicaragua's"exclusive dominion and supremecontrol(sumo
imperio)over thewatersof the SanJuan river" forallpracticalpurposes393.Her
Reply provides hrther proof of CostaRica7srefusalto acceptthat thiswaterway
is wholly within Nicaraguan territory, and thereforeunder Nicaragua's
sovereignty.
5.2. Thus, Costa Rica continuesto base rights onthe shifting sands of non-
binding documents and inapposite cases ,nd to conjurerightsfrom provisionsof
the 1858 Treatyandthe ClevelandAwardthat grant nosuchrightsat dl.
5.3. By claimingthisbroad arrayof rights onthe SanJuan River, Costa Rica
effectively claims shared sovereigntyover the river. Sincea direct and open
claimto this effect wouldbe precludedby the 1858~reai$'~, CostaRicaseeksto
attain her objectivethough a multiplicity of lesser,yet still quite significant,
claims - a "death by a thousand cuts"strategythat sheevidently believes will
enableherto attainher goal.
39"Co~faRica-NicaraguaTreaty of Lim(Cailas-Jere,5April1858",in Argumentan the
Questioofthe ValidiofthePeaty oLimitsbetweeCostaRica and Nicaragua,Washington:
GibsonBros.,1887,DocumentNo. 1, ArticlVI (hereinaf"1858 Treaty(Englishversion
submittto PresideClevelanbyCostaKca)"). CRM,Vol. TI,Anne7(b)p,50.
39Seeibid.5.4. She should not be permitted to do so. Giving effect to Costa Rica's
claimed rights ofprotection, custodyand defence would render entirely illusory
the quid pro quo embodied in the 1858 Treaty, which as shown in Chapter 11,
Section I,legitimized theannexationby Costa Ricain 1824of the large districtof
Nicoya (Guanacaste) in return for recognition of Nicaragua's exclusive
sovereignty over the San Juan River. More fundamentally, validation of these
claims would negate Nicaragua's sovereignty over the river,treating it asf the
boundary followedthe median line rather than the right bank. The injustice of
such a result is obvious,but Costa Ricanevertheless continues to seek it,orits
hnctional equivalent.
5.5. This chapterwill show that,as to the scopeofthe rights claimedby Costa
Rica to use the San Juan River, the Reply fails to rebut Nicaragua's Counter-
Memorial. In particular,iwillbe shown thatCosta Rica has no rightto perform
police hnctions onthe San Juan River,or to navigatethe river with vessels of her
public security forces except to the limited extent recognized inthe Cleveland
Award: with vessels of her revenue service, when (and only when) such
navigationis necessaryto protecther right to navigate"conobjetosde comercio."
The chapter will also demonstratethat Costa Rica has never sought to exercise
thisright,and that, in any event,Nicaragua has nevedeniedorbreachedit.
SectionI. The Scopeof Costa Eca's Alleged Rights
5.6. Costa Rica recites a litany of authorities undthe heading, "Applicable
Law" --the same sources she referred to in her Memorialin this regard--in her
effort to establish "public rights of protection, custody ~nd defence." Thesesources are no more availing for Costa Rica than they were when first cited;
CostaRicafailstorefbteNicaragua's challenges tothem.
1. ArticleIY ofthe Treaty ofLimits
5.7. CostaRica first alleges that her "publicrights of protection,custodyand
defenceare established in ArticleIV of the Treatyof Limits," andthat "[tlhese
rightshave implicationsfor CostaRica7snavigationon the San~uan'"~~.That
Article-- whoseactualtext, perhaps understandably ,osta Ricadoes notquote in
the Reply to substantiatethe above contentions --for the most part lays down
abligations,not "rights"as they are characterizedby CostaRica, It provides as
follows:
"ArticleIV.
The Bay of SariJuan delNorte, aswell as theSalinasBay,
shallbe commontobothRepublics,and,therefore,boththe
advantages of their use andthe obligationto contributeto
their defenceshall alsobe common. Costa Rica shall be
bound, as far as the portion of the banks ofthe SanJuan
river which correspondto it is concerned,to contributeto
its custody inthe same way as the two Republics shall
contributeto the defence of the river in case of external
aggression;and this they shall do with all the efficiency
within theireach."396
5.8. Article IV is straightforward. It begins by addressing thebays at the
Atlantic (Caribbean)and Pacific endsof theborder betweenthe two countries. It
39CRR, para.3.79.
391858 Treaty(Englistranslationsubmittedto PresidentClevelandby CostaRica),ArticleIV.
CRM,Vol.11,hex 7@),p.49.providesthat sincebothbays are "common"to the two each has rights
("advantages of their use") and duties (?he obligationto contribute to their
defence") in respectof the bays. TheArticlethengoes on to addressthe portion
of the Sar?JuanRiverwhere the rightbank formstheboundary. It provides that
Costa Rica hastwo obligationsregardingthisportion ofthe river. m, she has
an obligationto contributeto thecustodyof the river"as fa as theportionof the
banks ofthe SanJuanriverwhichcorrespondto it is concerned.398"Second,she
has an obligation, with Nicaraguat ,o "confxibuteto the defence of the riverin
caseofexternal aggression."
5.9. Costa Rica seeks to make these very limitedrights and obligationsthe
basisof greatly expandedrights of navigationonthe San Juan River with vessels
of her public security forces.As made clear in the ~oanter-~ernoriaP~~ ,uch
rightswouldbe incomp&tible not only with Nicaragua'ssovereigntyoverthe San
Juan,but alsowithPresidentCleveland's decision that CostaRca has no rightto
navigateon the river with vessds ofwar, and that only vessels ofCostaRica's
revenueservice may use the river,and only thenwhennecessaryto protectthe
righttonavigate "conobjetosdecomercia."
5.10, Contrary to CostaRica's inflatedcontentions,theordinarymeaningofthe
termsof ArticleIV, intheir contextand in the light ofthe Treaty'smainobject
and purpose (the establishmentof a boundary), is that while Costa Rica may
397Thequestionispresently notissubeforetheCourt,butthe extenof th"common" nature
of theBay ofSan Juan waslimitedby the ClevelandAwardanditwasleftin the delimitation
executedby thAlexanderAwardstotallywithinNicaraguanterritoThe other"common"Bay
of Salinaswaspartiallyddimitedby the AlexandAwards.Whenthe term"common"bays is
usedinthese pleadinby Nicaraguaitisinthispecialsense.
3981858Treaty(EnglishtransIatisubmitteto PresidenClevelandbyCosta Rica)Article IV.
CRM,Vol.IT,Annex7@),p. 49.
39See NCM,paras. 4.2.28-4.2.35.defendthe two bays using vessels-- since "the advantages oftheir use and the
obligationto contributeto theirdefence fare]common'7 and the Bayof San Juan
in 1858 was accessibleby sea --she may dischargeher obligationsto contribute
to the river'scustody("cguarda" anddefenceonlyfrom her own banks, andonly
"incaseof externalaggression,"
5.11 As noted in the ~ounter-~ernorial~~? this interpretationis confirmedby
the second report of Assistant Secretary of State George L, Rives, to whom
President Clevelanddelegated the task of preparinga draftofhis arbitralaward.
In a passage set forth in theCounter-Memorial, a portion of which is worth
repeatinghere,Rives saidofArticle IV ofthe treaty:
"All that article requires is th&Costa Rica should repel
foreign aggressionon the river with all the efficiency
within herreach. If under the termsof the Treaty,Costa
Rica is not permittedto maintain vesselsof war on the
River she cannot be regarded as derelict if she fails to
oppose foreign aggression in that quarter by her naval
forces. .,. CostaRica would only be bound to contribute
to the defenceof the streamby land, a modeof defence, it
maybe added,whichseemsbetter adaptedto aRiverofthe
size and character of the San ~uan."~'~ (Emphasis in
original)
5.12. This interpretationofthe relevant portionof ArticleIVwould seemto be
the only one possiblein light of(a)Nicaragua's exclusive sovereignty ovetrhe
river under the 1858 Treaty, (6) the prohibition.of navigationon the river by
Costa %can warships under the Cleveland Award and (c) the restrictioof
navigation by Costa Rican revenuevessels (which are not defence vessels)ta
'"SeeNCM, para.4.2.31.
'" Reportof GeorgeL. Rives(Second)(hereinaft"RivesReport"), pp. 211-2oforiginal
handwrittenversioNCM,Vol.11, Annex71,p.251.circumstances relatedto and connectedwith, or necessaryto theprotectionof,
navigation"'conubjetosde comercio,"also underthe ClevelandAward.
5.13. Costa Rica, however, does notrespond to Rives' analysis directly,
confining herselfto the statement that"'within its reach' does not necessarily
correspondto 'ffornits shore'. Itcouldequallywe11 mean that each State shall
actwithmaximumefficiency."402 CostaRicaexplainsneither theimplicationsof
such an interpretation nor how the interpretation can be squmedwith the
contennporaneousone made by Rives, as a neutral third party tasked with
proposing a resolution of the dispute, or with President Cleveland'soutright
rejectionofherpretensiontonavigateon theSanJuanwithmilitaryvessels.
5.14. Therefore, contrarytoCosta Rica'scontention,Article IV ofthe Treatyof
Limitshasno "implicationsforCostaRica'snavigation on the SanJuan."
2. Article VIof theTreraqofLimits
5.15. Aftermakingthe contention regardingArticle IV of theTreaty ofLimits
discussed above, Costa Rica states in her Reply: "Moreover, Article VI
establishesa perpetualright of fiee navigation for Costa Rica,hich of course
includes navigation with public vessels. This was recognizedby the Second
,7403
ArticIeof theCleveland Award ....
5.16. It is truthatArticIeVI providesthat "the Republic of Costa Rica shall
have the perpetualrightof freenavigation"on the Sa JuanRiver. But what is
40CRR, paw.3.93.
403
CRR,para. 3.79(emphasiadded).inconvenientfor CostaRica is thatArticle VI saysnothingaboutpublicvessels.
Instead, it refers onlyto &freenavigation"con objetos de coirzercio":'Iperola
RephbEica de Costa-Rica tendriiendichm upas, 10sderechos perpetzkosde libre
navegacidn, . ..con objetos de comevcio .,. .(butthe Republicof CostaRica
shall have perpetual rights, in the said waters; of free navigation ...for the
purposes of ~omrnerce)''~~'
5.27. fights of freenavigation witharticlesof trade (or even for purposes of
commerce, as per Costa Rica's translation)are not exercised by Costa Rican
publicvessels,either today or inthe mid-nineteenthcentury405. Perhapsrealizing
this,CostaRica seeksrefuge, notinArticle VI itselfbut intheClevelandAward.
5.18. Costa Rica relies in thisconnection on the Second paragraph of the
ClevelandAward. But she satisfies herself with merelyquoting thatparagraph,
and adding thatthe paragraph"recognised"that a "right of free navigationfor
CostaRica . . .ofcourseincludesnavigation withpublic vessels'7406 H.ow the
Secondparagraph of the Cleveland ward^' ^ecognizesa right of "navigation
with public vessels," or what kinds of public vessels other than those of the
revenue service that are specificallymentioned,Costa Rica does not explain.
Thiscontentionthereforeremainsanunsupported allegation.
404Cost aica-NicaraguaTreatof Limits(Jerez-Caiia,5 April1858,in CoEecci6de Eas
Leyes,Decretoy Ordenesexpedidopor 10SupremosPoderes LegislatlyEjecutivode Costa
Rica eelaffode I858(hereinafter"1858Treaty (originalSpversion)"),TomoXV,,1871,
ArticlVI.CRM, Vo1.11Annex 7(a),pp41-42.
40SeeNCM, para4..2.8.
40CRR,para. 3.79.
40Quotedin ibid.5.19, And it is an allegation that:isespecially unsupportable in light of the
question that Costa Rica put to President Cleveland at the arbitration, and his
responseto it. After quotingArticleVI of the Treaty,Costa ZiicaaskedPresident
Cleveland: "Does this mean that Costa Kca cannot under any circumsta~ces
navigate with public vessels inthesaid waters,whether said vessel isproperly a
man-of-war, or simply arevenue cutter, oranyother vessel intended to prevent
smuggling, or to carry ordersto the authoritiesofthe bordering districts, ofor
any other purpose not exactly within the meaning of transportation of
rnerchandi~e?"'~~President Cleveland's response was to recognize no general
right of Costa Rica to navigate with her public vesselson the San Juan River;
instead he recognized only a right to navigate with vessels of the Costa Rican
"revenue service,"and only thenas necessaryfor the "protection" of navigation
"for purposesof commerce". This languageplainly excludedthe uses of the river
identifiedby Costa Rica inher questionto the Arbitrator,suchas "to carry orders
to the authoritiesofthebordering districtsoreven "toprevent smuggling," since
the revenue service vessels that PresidentClevelandpermitted to navigate on the
riverhad to be "relatedto and connected withher enjoymentof the 'purposesof
comerce+"'
5.20. Any other navigation rights accordedto Costa Rican public vessels,
including vessels of her police or border security forcewould be inconsistent
with Nicaragua's entitlement -- under the Cleveland Award -- to exclusive
dominion and supreme control (sumo irtzperio)over the river. This was
recognizedby President Cleveland, and it explainwhy he limitedthe use of the
river by CostaScan public vesselsto thoseof the revenue service engagedin the
protection of her right under Article VI of the 1858 Treaty to navigate "con
'0Argument ofCostaRica,op.citp.155.NR, Vol.11,Annex5(emphasisadded).
228objefos de comercio." Nevertheless,Costa Ricanow asksthe Court to adjudge
and declare that Nicaraguahas: "theobligationto allow Costa Rican official
vesselsthe rightto navigate theSanJuan,includingforpurposesofre-supplyand
exchangeof personnel of theborderpostsalongthe rightbank of theRiverwith
their official equipment,including service arms and ammunition,and for the
purposesofprotection asestablishedinthe relevant instrument,ndin particular
article2 ofthe Cleveland ward."'^ ^osta Ricahopesthe Court willnot notice
that shemade virtuallythe same requestof PresidentCleveland 130 yearsago,
andthat he rejectedit.
'.3. OtherDocuments Invoked by Costa Rica
5.21. Costa Rica expands her argument beyond the 1858 Treaty and the
Cleveland Award, and invokesstnumberofothersources sheallegestobepart of
the "applicable Thisiscurious inlightof theparties' agreemen hat the
scopeof CostaRica'snavigationalr.ightsmustbe determined by referenceto the
Treatyof f858 andthe 1888Cleveland Award. At paragraph 1.18 of theReply,
for example,Costa Rica correctly states that"the parties agree thatCostaRica's
navigational rightsare defined by the 1858 Treaty md the 1888 Cleveland
Award." The point issignificant becauseeven as Costa Rica admits that the
scopeof hernavigationrightsis definedby the Treatyof 1858 andthe CIeveland
Award, she consistentlyseeks to expandthose rights beyond the obvious
limitationsthoseinstrumentsestablish.
"'CRM, Submissions,2(g).
41ThesesourcesarediscussniNCM, paras.3.2.1-3.2.14.5.22. Tothis end,Costa Ricainvokesthree additional instrumen,allingthem
"relevant" without sayinghow they are relevant, or apposite, the present
case"". Costa Ricain factreferto onlyone of them--the Cuadra-Lizmo Joint
ComuniquCof 30 July 1998"*,discussedin Chapter11,Section11, and again
belowatparagraphs 5.94-5.99--inattemptingto answerNicaragua's arguments.
These instrumentswere aI1shownto be unhelpfulto Costa Rica's casein the
~ounter-~ernoriat'hnd again inChapter 11,Section11,of thiRejoinde re;
Replyfailstobreathe any lifeintothem,
B. COSTA NCA'S RESPON SE THEANALYSI SNTTKECOUNTER-MEMO RSTAL
NoANSWE RO NICARAGUA A RS UMENTS
5.23, Costa Rica attemptsto answer Nicaragua's analysisof why she lacks
"public rights of protection, custodyand defence" of the kind she
Theseattemptswillbe shown tobeineffective inthefollowingparagraphs.
5.24. Costa Rica asserts foreasonsthat she contends"militate infavourof a
right ofnavigationonthe SanJuanby CostaRicanpublicvesselscarryingpolice
with normalarms."415These"reasons"constituteassertionsthat Costafica,for
themost part, makenoattemptto substantiate,
4"SeeCRR, para.3.81.
412
See"Ministrof DefencofNicarag-aMinistrofGovernment,Police PubliSecurity
of CostaRica, JoiCommuniqud(Cuadra-Lizano),Managua30 July 1998" (hereinafter
"Cuadra-LizaCommuniqu&')C. RM,Vol11,Annex28.
4'SeeNCM, paras.3.2.1-3.2.14.
4'SeeCRR,paras.3.86-3.94.
41CRR, para3.86. "The first [of thereasons citeby Costa Rica] is that the re-supplyof
5.25.
posts is covered by the right of free navigationfor purposes of cammerce in
ArticleVI of the 1858 ~reaty.''~~~One would expectthat such a remarkable
assertion--and it wouldbe remarkableeven if "can obg'etod7ecomeucio"were
properlytranslatedas"forpurposesofcommerce" --wouldthenbe explained and
documented. But it inot. Instead, CostaRica simplyrefers to herMemovial,
which itself failto show any logical or treaty-supportedlinkage between the
"rightof freenavigationforpurposesofcommerce"on the onehand,and the"re-
supplyof [police]posts" on the other, Certainly, President Clevelanfoundno
suchlinkage.
5.26, Without Wher explanation, the Reply proceeds directly to the second
reason. "The second [reason] is that navigationunder Article VI of the 1858
Treatycannot be effectively protected without thuse of such Why
not? CostaRicanever explainswhy protectionof her right under Article VI --
the rightto navigate"can objetosde comercio" -- requiresthe presenceon the
river of vessels of her police or other public forces, apart frthose of hew
revenue service, whose useof theriverPresident Cleveland expresslauthorized,
but onlywhennecessary toprotect CostaRica'srighttonavigate"con objetos de
comercio." By expresslylimitingCosta Rica'suse of the river to vesselsof the
revenue service,he necessarilyexcludeduse by other publicvessels,especially
for purposes otherthan commerce, Finally on this point, it mightbe wondered
why and &om whom ""navigatiounder Article VI of the 1858 Treaty" --i.e,,
navigation"con objeios de covnercio"-- would requireprotection. CostaRica
does not clariQ this point,but presumably shedoes not meansuch navigation
'IIdem.
41Ibld.would require protection from Nicaragua. In any event, it is Nicaragua, asthe
exclusive sovereign over the river, that has both the right and responsibility to
providepoliceprotectionofnavigationonthe river.
5.27. Costa Rica7sthird reason is "for the defence of the common border and
the commonbays under Article IV of the ~reaty"~T 'h~s argumenthas already
been shown to be without merit4I9. In addition, Article IV itself specifically
makes separateprovision foxeachof the two sectors-- the bays and "the banks of
the SanJuan river." As has been demonstrated420C , ostaRica may dischargeher
obligations to "protect" the San Juan River -- i.e., to contribute to the river's
custody ('"uvda") md defence --only from her own banks, and only "in case of
externalaggression7"'.
5.28. The fourth reason givenby Costa Rica for a "right of navigation on the
San Juanby CostaRicanpublic vessels carrying police with normalarms" isthat
"it would be impossible, withoutadequate re-supplying of the border posts, to
prevent or deter unlawfuI activities in the (land) border area (smuggling,
trafficking in persons).Itwould also be impassibleto hlfil official acts such as
police investigationsin a timely
5-29. Even assuming everything Costa Rica asserts in the above-quoted
language is true, which is not proven (indeed, Costa Ricasubmits no proof
41sCRR, para.3.86.
4'see NR, paras.5.8-5.14,
420Seeibid.
4211858Treaty (EnglishtranslasubmittedtoPresidentClevelandbCosta Rica),ArticleIV.
CRM,Vol. 11Annex7@), p.49.
422CRR, para.3.86.whatsoever in supportof this assertion), it would hardlyconstitute a legal
justification for entering Nicaragua's sovereign territory and utilizing that
territoryto performhnctions that shouldbe performedon CostaRicanterritory.
This reason is part ofthe themeof CostaRica'scase: needs(evenon land, and
eventhough unproven)createrights(on theriver). Obviously, theydonot.
5.30. Moreover,theevidenceshowsthat thereisnotevena need forCostaRica
to re-suppplher border posts via theSanJum River, On the contrary,there is
incontestableproof --foundin Costa Rica'sownAnnexes,as will be described
below --that sheis ableto re-supplyher borderpostsalongthe right bankof the
San Juan by land,and in factdaes so.Accordingto theNicaraguanArmy officer
responsible for the San Juan River Province, "the Costa Rican Civil Guard
usually we-suppliesits posts by land, for which purpose they have feeder
roads"423. Further,"he has evenobservedthat a highwayis beingbuilt in their
territory,runningparallelto the San Juan~iver"~'~.In fact, the roadsto Costa
Rica's borderostsare depictedonCostaRicanmaps,includingthe one shownin
paragraph5.98. Thusit seemsclearthatthere isnot evenaneed, let alonearight,
forCostaRicato re-supplyher borderpostsviatheriver.
5.31, Costa Ricamakesmuch hss about Nicaragua'sPresidential Decree No.
65-2005of 28 September2005, citing a press reportof October 1,2005,which
she sayshas"aggravated"the"sihrationYdz5 C+ostaRicareproduces severalofthe
operative paragraphs of the decree, which is entitled "The Government of
Nicaraguawill not allow Armed Navigationof ForeignForces in Nicaraguan
"'AffidaviofColoneRicardoShchezMhdez, 7 December2006.NCM, Annex 91,p.322.
42Ibid.
42CRR,para.3-87.Territorial Not surprisingly, Costa Rica omits the preambular
paragraphsof this decreeentirely. These paragraphsexplainthe motivesfar the
decree,includingthefollowing:
After the timelimit fixedin the Declaratioof Alajuela,of
September 26, 2002 expired, CostaRican authorities have
resumedan intense campaign along with statementsmade
by some officials,with the claim of cawing out armed
navigationinNicaragua'sSanJuanRiver.
Any claim from foreign forces to cany out armed
navigationin Nicaraguan sovereign waters constitute- in
itself a threatto thecountry'sinternaland externalpeace
andsafety and lessens the essentiinterestsofitssafety.
The public claim tousetheNicaraguan sovereign watersof
the San Juan River for the passing of armed personnel,
relief, transportationof weapons, ammunitionand any
otherforeignmilitaryor policeactivity,withoutan express
authorization,constitutesan intolerable challenge to the
sovereign attributions of dominion and sovereign
jurisdiction thaNicaragua has over its waters along its
whole length.
Article 111(Sovereignty)Clause 2 of the Inter-American
Convention Against the Illicit Manufacturing of and
Trafficking in Firearms, Ammunition,Explosives and
OtherRelatedMaterials ofNovember 13, 1997,reads: '<A
State Party shall not undertakein the territoryof another
StateParty the exerciseofjurisdictionand performance af
42CRR, para.3.88. functionswhichare exclusivelyreservedto the authorities
of thatother StateParty by its domestic
5,32, The decree,therefore,is a perfectlyappropriatestatement ofthe obvious:
thata Statewill defend itself againstunauthorizedincursionsby armedpersonnel
ofother States.
5.33. Costa Rica'scharacterizationofit calls for the followingremarks: fist,
Costa Rica gives no substantiationother than a singlepress account for her
assertion that a 'Tuing order"was issuedm8.Suchseriousallegationsshouldbe
substantiated by officialsources,not by sensationalpress accounts. Second, the
expression "firirinagrder," while it might sell newspapers, is inappropriately
inflammatory when usedin a pleadingbefore fie Court, It, in effect, suggests
thatNicaraguanofficers wereauthorizedto "shooton sight" when,in fact, by its
own terms, the press account in questiondescribesthe "order" as "Intercept,
4" NicaraguanPresidential DecreeNo. 65-200of 28September2005, OfficialGazetteNo. 188
of September29,2005. CRR, Vol. TI, nnex69.
428See "Amy guardsthe river", (LaPrensaI October2005). CRM, Annexes,Vol. V, Annex
182,p.743
(OriginalSpanish:"..Interceptar,capturarabrifuego esla ordenque recibi6 ayer la patrulla
nicaragilensede vigilanciadel rio Juan,en casode avistaruna embaracibncon guardiaticos
armados.
Enarbolandola Bandera deNicaragua,am1y blancola Ianchadcl Ejbcito Nacionalrecibi6ayer
la vozdezarpe delcoronelRicardoShnchez ,efedd destacamentosur,paracumplirlamisi6nde
proteger la soberania de1rio SaJuan. La nave reford 10spuestos militares nicaragiienses
ubicadosen ElCastillo,Bartola,Bocade SanCarlos,Sarapiqui,DeltSan JuandeNicaragua.
El capith JustoJod Gonzklez,jefe de sector fronterizoy de la palmlla de vigilaelria,
parti6 a1rnediodiadel viemes juntaWJ contingentemado y 10spertrechos necesarios para
cumplirsumisi6n.
El coronefShnchezdijo que la medida no afectarhla vida cotidianadc 10scolonos ni de 10s
turistas.
'Inspeccionaremosque se cumpla con el derecho a1 zarpe y en caso de las embarcaciones
costarricensesque ingresanpor elaactividadescornerciafcsy katuristano hayprobblema,
loquenotoleraremoses quela guardiricaingrese armada',advirdijefe militar.").capture or open fire," clearly treating the latter as a last r-sbut one that
wouldbe opento any Stateif armedforcesfromanother Stateentered itsterritory
without authorizationand refusedto lay down their anns or leave.172iu again
by its own terms, the press account relied upon by Costa Rica contains the
following quotation from ColonelRicardo Sbchez of the Nicaraguan Army:
"there is noproblem if Costa Rican boats navigateinthe river, for commercial
purposes [the original Spanish expressionis not givenor if they bring tourists.
But, we will not tolerate thatCostaRicm guardenters armed'742g .nan affidavit
given on 7 December 2006, Colormel Shchez, Chief of the Southern Military
Detachment,whichhad the responsibilityto provide security along the San Juan
River, states thatCosta Rican vessels carryingtourists were indeed permitted to
navigate on the San Juan River provided they complied with the applicable
Nicaraguanregulatoryrequirements430. Colonel Sanchezfurtherstates that"since
he has held [his]position, the Costa Rican Civil Guahas not navigatedthe San
Juan deNicaraguaRiver,norhas he received any permissionrequest toengagein
this activity"43'.Fourth,the preambleof the PresidentialDecree refersto the fact
that "Costa Rican authorities have resumed an intense campaign along with
statements made by some officials, with the claimof carrying out armed
navigation in Nicaragua's San Juan River." Examples of these provocative
statements by senior Costa Rican officials are provided below, at paragraphs
5.89-5.91. Giventhat such armednavigation isnot permittedby the 1858Treaty
or the ClevelandAward andthat it:has been expresslyprohibitedby Nicaragua, it
is only natural in view of Nicaragua's uncontestedsovereigntyoverthe river to
regard the unauthorized entry into Nicaraguan territory by armed forces of
430SeeAffidavitof ColonelRicardoSanchezMknd7zDecember2006. NCM, Vol.11Annex
91,pp.321-2.another State as a threat to Nicaraguan territorialintegrity and securityAny
State would respondas Nicaragua didto such threats to itssovereignty. Fifth,
after quoting theoperativeparagraphsof the decree,Casta Rica makes bold to
contendthat: "This orderalso amountsto a violationof ArticleIX of the Cafias-
J6rezTreaty, according to which neither Costa Rica nor Nicaragua "hall be
allowedto commit anyact of hostility againstthe other,whether in the port of
SanJuandelNorte,or on theSan Juanriver,or theLake of~icara~ua"'~~~.
5.34. It is of courseCosta Rica thatwould be"commit[ting][an]act ofhostility
against" Nicaragua by entering her territory under arms, not the other way
around. It is therefore CostaRica that would be in violation of Article IX by
engagingin armednavigationon the San Juan,not Nicaragua fordefendingher
territory. And this suggests sixthand finalobservation:Putting the situationin
the light most favourable to Costa Rica, there was clearly a serious dispute
regarding Costa Rica's armed navigation on the San Juan River. Why, then,
wouldCosta Rica inviteconflictby statingshewould do just that?
Costa Rica nextreturns to navigation by vessels of the revenue service.
5.35.
Shestates:
"It may be recalled that under the SecondArticle of the
Cleveland Award navigation by vessels of the Revenue
Serviceis explicitlypermitted:
'as may be related to and connectedwith [Costa Rica's]
enjoyment ofthe 'purposesof commerce'accorded to her in
[ArticlVI of the 1858Treaty],or as may be necessaryto
the protection of said enjoyment.'(Emphasis addedpy
CostaRicaf .)
"'CRR,para.3.88. The lastpar tf the phrase clearlypoints to defencematters.
The Central American Cow of Justice supported this
reading when it pointed out that in the zone of common
navigation, merchantmen as wellas public revenue vessels
have a freecourse over the River and free access to both
5.36. It has already been pointedout, in Chapter11,Section31,that:the decision
of the Central AmericanCourt:of Justicehas no precedentialvalue in the present
case,as theCourt there wasdealingwith a differentissue434But evenifthat case
were relevant, the Central American Court's decision will not support Costa
Rica's assertion. ThatCourt:did not read the Second Article of the Cleveland
Award as conferring rights as to "defence matters." To the contrary, it
understood theAward as permittinguse ofthe river, in CostaRica's own words,
by 'merchantmen" as well as "public revenue vesseIs": in other words, vessels
engaged in navigation"conobjetosde copnercio" or engaged,as necessary,in the
protectionof such navigation. This is no morethan what President Cleveland
decided in 1888. As explained in the ~ounter-~emoria al'ofthe available
evidence points to President Cleveland'sdeterminationto restrict navigation
the San Juan by Costa&can revenuevesselsto the protection of navigation"con
objetos de comercio,"not to a willingness, on his part, pernit:their use for
"defence" or related purposes. An examinationof the tvavaux pr¶toiresof
theAward,including theRivesreport, confirmsthis conclusion.
5.37. President Cleveland explicitly placed two conditions on Costa Rica
regarding navigationby any of her revenuevessels on.the SanJuan River:First,
43CRR,para.3-89(footnoteomitted).
43SeeNR, paras2.124-2.128.
43See,e.g.NCM,paras.3.1.46-3.1.57;4.2.26-4.2.27.thevesselsmust be"relatedto andconnectedwithherenjoymentofthe 'purposes
of commerce'accordedtoher in [Article VI of the1858 Treaty]";or second, such
navigation must be "necessaryto the protection of said enjoyment"436.Costa
Rica, in the passage from her Reply quoted above,focuses upon the second
condition. Insighi:intowhattheArbitratorintendedby this condition isprovided
in the secondpart of the report preparedby AssistantSecretaryof StateRives,to
whom President Cleveland delegatedthe task of drafting his arbitral award.
These portions of Rives' second report were notin any way questionedby the
Arbitrator;indeed,they appeartohaveguidedPresidentCleveland's findings.
5.38. Rives first summarizedCosta Rica'sargumentsregarding navigationon
the SanJuanwith warships. In thesearguments, CostaRica: drew an analogyto
ports of fiee entry and asserted that theywere consideredto be accessibleto
foreign men-of-war; contended that "by the usage of nations navigation of
territorial watersby foreign public vesselscan only be forbiddenby express
stipulation...;'"7and frther contended that Article 1V of the 1858 Treaty,
requiring that both States "contributeto the defence of the river in case of
externalaggression," meant that she ""mustbe permittedto maintainher vessels
onthe SanJuan in orderto guardand defendit withall theeficiency withinher
reach''438.These arguments have particularresonance today,one hundredyears
later,sincetheyaresimilarto thoseCostaRjcamakes in this case.
5.39. Rives responded bluntly to Costa Rica's contentions concerning
navigationon the SanJuanRiverbyher "publicvessels":
436ClevelanAward, op.cit.,para.Second. CRM,Vol. 11,Ann16.
437Ibid.
438RivesReport,op.cifp.56of originalhandwrittenversiNCM,Vol.IT, Annex 71,p. 253
(emphasiadded). "Some of these argumentsmaybe dismissedat once.
The prohibition of acts of hostility on the river, cannot be
construed as conferring on Costa Rica a right to maintain
upon its waters public vessels in time of peace. The
implication, instead woulseem tobe the otherway.
The right of Nicaraguanvessels to land freely on the Costa
scan side confers no right on Costa Rica to maintain a
river police. She has undoubtedly the rightto establish
Custom Houses alongthe River and to maintain aforce of
revenue officers.But this forcneednot necessarilypafxol
the river in boats. This may be a convenient way of
preventing smuggling; butit inot so necessaryan incident
to therightsof Costa Rica toenforceher customslawsas to
be inevitably implied ex-necessitatefrom the provisions of
thetreaty.''439
5.40. Thus, even navigation by public vessels of Costa RJca's revenue and
customs service is not ordinarily necessaryto protect her navigational rights on
the river, As Rivesfound, customs enforcementona riverasnmow and sparsely
traffickedasthe San Jum canjust as effectivelybe performedfromland. Rives'
obvious reluctance to find in the Treaty a right of navigation for Costa Rican
public vessels is not surprisingin light of another passage in the secondpartof
his report,inwhich he emphasizesthe consequencesof Nicaraguan sovereignty
overthe SanJuan River. Thepassage reads as follows:
"It must not be forgotten that the sovereignty and
jurisdiction of Nicaragua extend over allthe waters of the
San Juan. In the unusual and forcible language of the
Treaty, she possesses exclusively the dominion and
supreme controlof these waters.CostaRica is boundednot
by thethalweg, or the middleof the stream, butby its right
bank. Any vessel navigatingthe river is,therefore, within
43Ibid pp.56-57oforiginalhrtndwriversion(emphasisadded).
240 Nicaraguanterritory;and onNicaragua fallsexclusivelythe
duty ofpolicingthe
5,41, This passage highlights the difficulty, in viewof Nicaragua's exclusive
sovereigntyover the river, of findingrightsin Costa Rica to navigate on the Sm
Juan with public vessels of her securityforces. Italsa shaws that the official to
whom President Cleveland delegatedauthorityto prepare a recommended award
concludedthat the Treatycompelledthe conclusionthat Nicaragua"exclusively"
had the right, andduty,to policethe stream.
5.42. In Tight of the foregoing, only the rare circumstances would make
navigation on the river by Costa Rican revenue servicevessels "necessary to the
protection of [the] enjoyment [of Costa Rica'srights of navigation 'conobjetas
de corpzercio']."As Rives wrote, Costa Rica was perfectly capable of enforcing
her customs laws from her own territory, and if doing so from the Nicaraguan
river was not necessaryat the time of the ClevelandAward it would seem even
lessnecessary today.
5.43. CostaRica's argumentin 1888, regarding ArticleIV ofthe 1858Treatyof
Limits, also sounds remarkably similar to her argument today. Costa Rica's
prior argument is worth quoting at length because it so closely parallels the
content andtenorof her currentpresentation:
"All that I have said in this portion of my work in
explanation of the factsand law whichrelate to the subject
might be erroneous, badly brought, irrelevant, and
absolutely inadmissible on general principles, and,
nevertheless,it:would be truethat Costa Rica can navigate
with men-of-war and other Government vessels an the
440Ibid.p. 5ofariginahandwritteversion(emphasiadded). waters of the San Juan river. It is Nicaragua herself who
has solemnly grantedthat right by an article of that very
same treaty whichshe aIlegesto be doubtful,or capable of
differentinterpretation.
'CostaRica shall also be bound,' says the second part of
Article IV of the treaty, 'owingto the portion of the wight
bank ofthe San Juan river, whichbelongs to it,...to co-
operatein its custody; and thetwo Republicsshall equally
concw in its defence in case of foreign aggressions; and
this will be done by them with allthe efficiency that may
be withintheirreach.'
It canbe seen by these phrases,as plainly and transparently
as theycanbe,that CostaRica has not onlythe right but the
duty, or to follow exactly the language of the treaty, the
"obligation,"not onlyofwatching, guarding, and defending
itsown river bank, but of contributing to the custody and
defenceofthe other bank belongingtoNicaragua.
Let it notbe saidthattheituthorityto navigatewith men-of-
war is only confined to the special case of foreign
aggression. The treaty does not refer to this case
exclusively, but speaks also of gumd or custody, which
means watching, vigilance, and other thingsof permanent
character and necessarilyprevious toactual defence. This,
especiallyin a river, cannotbe improvisedat the very same
instant that trouble arises; since, inorderthatit may be
possible and efficient, a perfect knowledgeof the locality,
which cannot be acquired except by navigating the same
river,is absolutelyndispen~able."~~'
5.44. Rivesfomd CostaRica's ArticleIVargumentmpessuasive:
"The stipulationsof ArticleTV throw no light on this questionAll
that Article requires is that Costa Rica should repel foreign
aggression on the river with all the efficiency within her reach.
[Emphasisin original.]If undertheterns of the Treaty,CostaRica
is notpermittedto maintainvessels of war on the River she cmot
~rgument ofCostaRica,op.cit.,pp. 159-160. Val.11Annex 5. be regarded as derelicifshe fails to opposeforeign aggression in
that quarter by her naval forces, Impossibilitiesare not required.
CostaRicawould only be boundto contribute tothe defenceof the
stream by landa ,modeofdefence, it may be addedwhich seems
better adapted to a River of the size and character of the San
JUCI~,''~~~
5.45, Nothing in the Second paragraph of President Cleveland's award is
contrary to any of the quoted passages from the Rives report. Indeed, all
indications are that the Arbitratorbasedis findings on Rives' analysis. Thus,
when PresidentCleveland states that Costa%ca may navigate on the San Juan
with such revenue vessels 'bs may be necessary to the protection of said
enjoyment," he isbest understood as incorporating the concept of "necessity"
articulated by Rives. As fives wrote, while itmight be "convenient" for Costa
Rican revenue officers to ply the San Juan in revenue vessels to prevent
smuggling,they "need not necessarilypatrol the rivein boats." Patrollingon the
river "is not so necessaryan incident to the rights of Costa Rica to enforce her
customs laws as tobe inevitablyimpliedex-necessitatefiromthe provisionsof the
treaty77443.
5.46. The conclusion isunmistakable: when PresidentClevelandrejected Costa
Rica's allegedright to navigate withshipsofwar, he necessarilyalso rejected the
rationalesCostaRica had offeredto supportthatwould-beright, includingArticle
IV of the 1858Treaty and the need to "guard" the river. Insofar as CostaRica
has repeatedly accepted the ClevelandAward as binding --a position expressly
reiteratedin both the Memoriaa lndReply --she cannot now be heard to argue
that PresidentCleveland'sdispositionof her argumentsconstitutes anythingless
442RivesReport,opcit.pp.56-58of originalhandwrittenversion. NCM, IT,nnex 71, p.
253-254(emphasisadded).
"3 Ibidp.57 of originalhandwrittenversion(emphasisadded).than resjudicata. Indeed, it is telling that Costa Rica has admitted that "the
President correctly gauged the scope of Costa Rica's right[to navigate with
public vessels]"444. Accordingly, this Court cannot but follow President
Cleveland'slead andreject Costa Rica's claim thatshehas eitherthe right or the
obligation to patrol the San Juan River with police boatsperforming security-
relatedfunctions.
5.47. This conclusionis borne outby CostaRica's actualcustoms enforcement
practicesoverthe last 150years sincethe Treaty ofLimitswas executed. As will
be shown below, CostaRica hasfailed to submit any evidencethat her revenue
service or other customs enforcement vessels ever navigated on the San Juan
River for the purpose of protecting her enjoymentof the right to navigate"con
sbjetos de cornercio." To the contrary, the evidence shows that Costa Rica's
customsenforcementactivitiesover the last century anda half have been carried
out on land, or on rivers exclusively within Costa Rican territory (i.e, the
Sarapiqui,the SanCarlos,andthe Colorado Rivers).
5,48. This background renders implausible CostaRica's next contention:that
President Cleveland"ruled that CostaRica'spublic vesselswere entitledto their
own, specific treaty right to navigateon the Costa Rica seeks to
support this contentionin two ways: firstby quoting paragraphSecond of the
ClevelandAward; andsecond, curiousiy, by referring to the fact that President
Cleveland rejected Rives' proposalof a broadwightof navigationon the riverfor
Costa Ricm public vessels. These bases of Costa Rica's argumentwill be
examined inturn,
~4 CRR,para.3.90.
Ibid.5.48. First, merely referringyet again to the Secondparagraphof the Cleveland
Award does not assist Costa Rica. The most obvious problem the paragraph
poses for Costa Ricsl has just been noted: all of the evidence --including
PresidentCleveland'shavingbanned navigationby CostaRicanwarships,and his
dispositionto restrict navigationby CostaRicanrevenuevessels to circumstances
when it is necessaryto protecther rightof navigation"cobjetasde comercio" -
- points in the directionof no navigation by Costa Ricanpublic vessels, not the
opposite.
5.50. Second, as even Costa Rica recognizes446P , resident Cleveland rejected
the broad right of navigation "with vessels of war or of the revenue service"
proposedby GeorgeRives. Rives' proposalwas based on a theorysimilarto the
position advocated by Costa Rica in the arbitration: assimilation of a right of
public vessels to navigate on the San Juan Riverto the generarightto navigate
with public vessels in the watersof a State'sterritorial sea. Costa Rica seeks to
turn President Cleveland's rejectionof this proposal to her advantage, arguing
that rather than restricting her navigation rights, the Axbitrator was actually
enlarging them:
"President Cleveland ... considerEed]that Costa Rica held
more than simply a 'privilege'enjoyedby everybody. This
is why he ruled that Costa Rica's public vessels were
entitledto their own, specifictreaty rightto navigate on the
~iver,''~~~
The effect of Costa Rica's argumentis thashe professesto consider that
5.51.
the explicit controls placed on her public vessels by President Cleveland(no
warships; revenue service vessels may use the river only to protect navigation
44Seeibid.
44Ibid."con objetus de comercio") are preferable to the broad latitude accorded those
vesselsunderthe Rivesproposal, Thatis, sheasksthe Courtto view this limiting
decision by President Cleveland in a light favourableto her, But, the effect of
President Cleveland's action isprecisely the contrary. In rejecting Rives'
proposal regarding "vessels of war or the revenue sewice," President Cleveland
demonstrated clearly his determinationto respect Nicaragua's sovereignty over
the SanJuan Rives byprohibitingthe laseof theSm Juan by Costa Rican public
vessels, withonlyone exception: revenueservicevessels engagedin protectionof
therightto navigate"conobjetosde cumevcio."
5.52. With respectto President Cleveland's languagei ,t is telling that he chose
a form of words that makesclear that CostaRica'sright of navigationon the San
Juan with revenue vessels is derivativeof and entirely dependenton navigation
"conobjetusde comercis" under ArticleVI of the 1858 Treaty. Itisnot a free-
standingright. Thus, Costa Rican public vesselsare only permitted on the river
to the extenttheirpresence"may be relatedto and connectedwith" or "necessary
to theprotection of' her "enjoymentof the "purposesof commerce' accorded to
her" in Article VI. By necessary inference, Costa Ricanrevenue service and
otherpublicvessels arenut permittedon the SanJuan for anyotherreason.
Section11. Evidenceofthe Parties'SubsequentPractice
5.53. Costa Iiica attemptsto support her claimto a broad right to navigate the
SanJuan withpublic vessels carryingpolice with normal arms by invokingwhat
she callstne "solid practicesupportingthat claim. T'hefallacy of this assertion
will be exposed in detail in the following sectionsof this chapter.the Court
will read,CostaRica's argumentsnot only findno supportin therecord, they are
expressly refuted by that State's own evidence. Before turning to that point'however,Nicaraguawill first addresselementsof thehistorical record that show
why there was and is no practice to buttress Costa Rica's case. In short, the
evidence availableis conspicuousin its sparsenessprecisely because, until Costa
Rica'spolicy change in1998,both partiesalwaysunderstoodthat Costa Rica had
no right tonavigatethe SanJuanwithpublic vessels.
5.54. The parties agreed to submittheir disputeconcerning the validity and
interpretationoftheTreatyof 1858 to arbitrationbyPresidentClevelandby treaty
dated 24 December 1886~~~. But the agreement to submit their dispute to
arbitrationdid notputan end to theireffortsto settle thecase extra-judicially, To
the contrary,they continuedtonegotiatebetweenthemselves inan effortto arrive
at a mutuallyacceptableresolution. Those effortsyieldeda treaty dated26 July
1887 which affirmedthe validity of the Treaty of 1858, resolved paints of
disputedinterpretationarisingfiomthat treaty,andcreatednewrights. The 1887
Soto-CarazoTreaty was promptlyratified by fonnal act of the Constitutional
Congress ofCostaRicaon 9 August 1887,just14days afteritsexecution.Itwas
ultimately rejected by Nicaragua, however, whichdecided to maintain her
objectionsto theTreatyof 1858and pressforward withthe arbitration,
5.55. Although the 1887 treaty never came into force, it does contain a
provisionbearing directly on the issuesnow beforethe Court. Nicaragua, of
course, recognizes that the 1887 treaty does not have the force of law.
Nonetheless,to theextentthatitwas ratifiedby theCosta%can Congress(injust
two weeks, no less), it constitutesprobative evidenceas to how Costa Rica
SeeNCM,para.4.contemporaneously understood her right (or non-right)to navigate the San Juan
with public vessels underthe Treaty of 1858, especially to the extent that her
contemporaneous understandingcontradicts the position she now takes in this
litigation449.
5.56. Article VI of the Sob-Carazo Treaty addresses the issues of disputed
interpretationof the Treaty of 1858, and provides that "[tlhe aspects of
questionable interpretationof the Treaty af 15 of April 1858 that have been
presented to date areresolved in the following therein stated. One of
the issues so resolved concerned CostaRica's right to navigate on the Sm Juan
with public vessels. Accordingtoparagraph3 ofArticle W:
"The right, grantedto CostaRica, of navigationfor [abjetos
de comercio]in the San Juan River,from itsmouth to three
English miles before Castillo Viejo, dues not include
navigation with war or Jiscul vessels exercising
5.57. Thus,as of 1887,just 29years afterthe conclusionofthe 1858Treaty and
on the eve of the Cleveland Arbitration,Costa Rica recognized that she had no
right to navigate on the San Juawithpublic vesselsexercisingjurisdiction. It is
unlikely thatPresident:Cleveland would havebeen unaware of this Treaty that
would have put an end to his arbitration. As Arbitratorhe could not have failed
to note that the Treaty had been tlly acceptable to one of the parties, and the
thinkingbehindhis Awardwould have takenthis intoconsideration.
449See Cme concerning Militav and Paramilifmy Activitiin and against Nicaragua
(Nicaraguav.UnitedStatesoAmerica)Judgmentof 27June1986,Merits,pgas. 64-73,
450CaM, Vol. 11,Annex15,p. 90.
451Ibi(emphasisadded).5.58. This interpretation, of course, flows naturally from the plain text of
Article VI of the Treaty of1858 which givesNicaragua"exclusivedominionand
supreme control (smo imperio)" over the San Juan River. Indeed, the
significance of theword ccexclusive" inArticle VI shouldnot be overlooked. In
English as well as Spanish, its meaning is both simple and indisputable.
Accordingto Webster'sCollegeDictionmy,it means"not admitting of something
else"; "oomitting ftom consideration or account"; "limited to that which is
designates'; "shutting out all others from a part or share"452.The dictionaryof
the Spanish Royal Academy is to the same effect. '%xclusivo"means "qua
excluyeo tienefuerza y virtudpara excluir"; "zinico,solo, excluyendoa cualquiev
otro (that which excludes or has the power or right to exclude; unique, only,
excluding any other)"453. Costa Rica herself has always recognized that
Nicaragua alone enjoys sovereignlyover the river454. The acceptance of any
Costa %can jurisdiction on or over the San Juan River would therefore be
inconsistent withthe plain terms of Axtick VI of the Treaty of 1858-- exactly as
Costa Rica recognized when she ratified the 1887 Soto-Carazo Treaty and
thereafter.
5.59. It is for this reason that President Clevelandtook such evident paitinsto
circumscribe Costa Rica's right to navigate the San Juan with vessels of the
revenue service. By anchoring them in, and making them attendant to, Costa
Rica's right to navigate "con objetosde comevcio"under Article VI, he ensured
that this narrow exception to Nicaragua's otherwise exclusive sovereigntywas
kept withinproper bounds.
452RandomHouseWebster'sUnabridgedDictionary,SecondEdition1998.
453 Royal Spanish Academy, Dictionmy of the Spanish Language, Twenty-second Edition,
Availableahnp://www.rae.es/.
45SeeCRR,para. 2.69Seealso,CRM,Vol. 111, nnex80.5.60. The soundness of President Cleveland'sruling, and the logic of his
rejectionof CostaRica's arguments,were well captured at the timeby one of
CostaRica'smost prominent jurists, RicardJoimknezOrearnuno,who served as
Presidentof CostaRica onthee separateoccasions. Writing aboutthe Award
justafieritwas issuedin 1888,he explained itas follows:
"Las Novedades [a Spanishlanguage newspaper]of New
York criticizes theawardbecause it does not giveus the
right to navigatein thSm Juan with vesselsof war. The
criticism, would say, is unfounded, The emphasis with
whicharticle6 of the treatyconsignsthat Nicaragua shall
have the dominio and sovereig~tyover the waters ofthe
river manifestsa desire to establisha difference between
the rightsthat were agreedthat Nicaraguaand Costa Rica
would have in those waters, Now,if merchant ships and
vessels of war of both Republicsnavigate freely and
indistinctly on the river; whereis it manifested, what
practical effect doesthesolemndeclaration have thatthe
dominionandsovereignty overthewaterscorrespondingto
Nicaragua? The rest of that article corroborates this
meaning.It was considered that thatabsolute affirmation
wouldtakeaway from Costa Rica all use,all enjoymentof
the river, and as that was not theintention,the exception
wasput immediatelythereafter, whichstipulatedthat Costa
Rica would have in said waters perpetualrights of fiee
navigation, with 'objectof trade.' the exceptiondues
notalso appear inthearticleinfavor ofvesselsof war, the
infe~encsislogical:itwas notthoughtthat Costa Rica had
that right.The argumentthat is gleaned from ;;uticle4,
regarding the obligatithatCostaRica hasto contributeto
the defenceof the riverincase of foreignaggression, was
perceived as much less thanconclusive.Costa Rica shall
contributeto that defence when the foreseen hypothesis
occurs.In themeantime,intime ofpeace, withoutthemost
remote riskof hostilities,to pretend that ourvesselsof war
navigateto contributeto a defencethat no attack provokes
is to get to the subtlenesswith which the Nicaraguans
examined the treaty. CostaRica,byvirtueof articl4, was
obligatedto defendthe San Juan as an ally of Nicaragua;
and, when has itbeen seenthat an ally, by being an ally,
pretendsto have the right, without therebeing a wax, to transit with&OOPS through the allied territory, navigate its
internal waters with vessels of war or station fleets in its
5.61. Nicaragua iscontent to adopt the words of PresidentJirnknezOreamuno
as her own. Costa Ricahas not the right of navigationof the SanJuan River with
any public vessels,includingpolicevessels,performingdefenceor other security-
related functions. Just as Nicaraguapreviously the only exceptionto
this rule arises in the eventf foreign aggressionas mentioned in Article TV of
the Treaty of 1858, inwhich case Costa Rica may (at Nicaragua's request)
contribute to the defence of the river, There has, however,never been any such
foreign aggression,and CostaRica.
5.62. It may be seen from the foregoing that Costa Rica has failed to offer a
persuasive response to Nicaragua's showing,in the Counter-Memorial,that the
Applicant State lacks "public rights of protection, custody and defence" of the
San Juan River. These alleged rights find no basis in the I858 Treaty as
interpretedinthe 1888Cleveland Award,whichtogether constitutethe applicable
law in this case. To be sure, the ClevelandAward recognizesa limited right of
CostaRica to navigate the San Juan River with vesselsof her revenue service.
Nicaragua has alwaysrecognizedthat right. However, aswill be shown below,
Costa Ricahas presentedno evidencethat she eversoughtto exerciseit --that is,
she has offeredno evidence that she ever sought to use the San Juan River to
protect navigation "con objetos de comercio," Nor has Costa Rica presented
evidencethat Nicaraguaeverdeniedorprevented herexerciseof thisright.
455RicardoJimhnez Oreamuno,His Thoughts,1980,p. 55.NR, Vol. 11,Annex 32 (emphasis
added).
456SeeNCM, paras.4.2.28-4.2.36;5.2.1-5.2.12. B, COSTA RICAN PUBLIC VESSEL S AVENEVER ATTEMPTET o PROTECT
NAVIGATIO "CNON ~BJETOSDE COMERCIU"OR HAD THE NEED TO DO SO
5.63. Nicaraguaagreesthat CostaRicahas aright under ArticleVI of the 1858
Treaty of Limits, as interpretedby paragraphSecondof the ClevAward, to
navigate on the San Juan River "with such vessthe revenue serviceas may
be related to and connected withher enjoyment of the 'purposesof commerce'
accordedto herin said articor,as may be necessaryfor the protection of said
enjoyment"457.
5.64. However, thereis no evidencethat Costa Ricaever exercisedthis right, or
that Nicaraguainterfered withit. At no place in her Memorial,or in her Reply, or
in any of the 317 annexes to her pleadings, does Ricaacite even a single
example ofnavigationon the San Juan River by a vessel of her revenue service
related to, or connectedwiornecessaryfor the protectiofher enjoymentof
the "purposeof commerce," Nor doesCosta Rica offer evidencethat Nicaragua
preventedor otherwise interfered with the navioftany such vessel. This is
a rather remarkable omissionfiomCostaRica's pleadings, and it cannot have
been anoversight. Etmust meanthat CostaRica hno suchevidenceto offer.
5.65. This conclusionis reinforcedby theevidenoa navigationby her public
vessels that Costa Ridoes submit. This evidence, consistofga handfulof
contemporaneous documentsfiom 1892, 1894-1909, 115,1968, 1991-1992and
1994-1998,as wellas affidavits fromcuxrentanformer police officers, shows
that navigation on the San Juan River by Costa Rican public vehas been
infrequent and foverylimited purposes,and thait hanever been related to,
45ClevelanAward,opcEt,para.SecoCRM,Val.11,Annex16,p. 98.
252connectedwith, orfor the purposeof protectingcommerce.Rather,CostaRica's
evidence demonstrates thaton the relatively rare occasions when her public
vesselshave navigated onthe San Juan River theyhavedoneso for one of three
pwposes: (1)to bring suppliesor replacementpersonnelto policeposts in Costa
Rica; (2)to cany out certainlawenforcementactivities;or (3)to delivermedical
or other social servicestoipariancommunities. None of theseactualuses of the
riveris relatedta, connectedwith, or necessarytoprotect CostaRica'senjoyment
of the "purposes of commerce,"and thereforenone of them is encompassed
within the right affordedto Costa Ricanrevenueservicevessels underparagraph
Second of the ClevelandAward,That explainswhy Costa Rica regularlysought
and obtained prior authorizationfrom Nicaraguabefore navigatingon the river
with her publicvessels foreachof thesepurposes. On occasion,as Costa Rica's
evidence showsandNicaragua doesnat deny, Nicaraguarefksed to authorizethe
requested navigation. But Nicaragua's reksal cannot constitute a violationof
Costa Rica's rights becauseCostaRicanpublic vessels haveno right to navigate
on the riverwhen the navigationis not relatedto, connected with,or to protect
CostaRica's enjoymeno tf navigation""conobjets decornevcio."
5,66. As demonstratedabove,the SanJuan River stopped serving asan outlet
for Costa Rica's foreigntrade soon after the Treatyof Limitswas executedin
1858, Forthereasons explained inChapter 111 ,tparagraphs 3.53-3.58,theroute
fiomcentral Costa Rica to PuertoViejode Saxapiqui by land, andthen down the
SarapiquiRiver to theSan Juan River andfiom there tathe sea, andwas soon
abandoned in favorof otherroutes tothe Atlantic,especiallyafter the railroad
was put into operationbetween Central CostaRica and Puerto Lim6n on her
Caribbean coast in the last quarter of the nineteenth century. Costa Rica's
commerceon the San Juan Riverwas strictly local, consistingof nothing more
thantrade in basic goods andgroceriesbetween theCostaRicaninteriorand thefew andsparselypopulated ripariancommunitiesthat existed on the right bank:of
the San Juan, and between those communities andthe Nicaraguan town of Sm
Juan del Norte. As shownin Chapter111n , othing has changedinthisregard for
the past century and a half. Tradeon the San Juan River has remained strictly
local,and of low volume,carriedon in small, privately-ownedboats operatedby
soleproprietorswithoutcrews458.
5.67. This explains why Costa Ricahas never employedrevenue servicevessels
on the San Juan River to protect her enjoymentof commerce there. The trans-
Atlantic trade via theSan Juan River envisioned in the mid-lgth century, and
which Costa Ricasoughtto safeguardby insistingthat:her commercialnavigation
rights be recognized in the 1858 Treaty, never materialized. That was the
commerce that Costa Rica intended to protect with herrevenue service vessels,
not the local tradebetween small communities along theSan Juan River that has
actuallytaken place, This trade has been so localizedthat for much of the last
150 years Costa fica has treated it as internal, ahas had no customs posts
through which goods enteringCostaRican waters fi-omthe SanJuan have had to
pass. During those periods when customs posts were maintained, Costa Rican
authoritiesrequired vesselsto stopforprocessing only aAerthey entered Costa
Rican wtt.ters,that is, after they left the San Juan and enteredthe Sarapiqui,the
San Carlos or the Colorado Rivers. They conducted no customs enforcement
activitieson theSanJuan itself.
5.68. Costa Rica's contemporaneous documentary evidence reflects no
navigationby Costa Rican revenue serviceor other fiscal or customs vessels on
the San Juan. Nor does it reflect any customs enforcementby Costa Rican
458SeeNR,paras.4.12-4.22vessels on the San Juan. Costa Rica admitsthat she had no Revenue Guard at all
until1886(28 years afterthe Treaty of Limits was executed),and even then that
it was establishedon the Colorado~ivef~~. Belying Costa Rica's assertions,the
reports of the local Guard commanders covering the period 1894 to 1909 s~y
nothing about the presence of Costa Rican vessels on the San To the
contrary,the report of3 1March 1894states:"The security services alongthe San
Carlos, Sarapiqui,Tortuguero,Revantazbn, and ParsirninaRivers and the Pereira
and Palma charnels all in CostaRica, asshownbelow in SketchMap 8, continues
uninterrupted;the less important channels are also safeguarded as long as the
other duties allow it"46'.The San Juan River is conspicuous by its absence Irom
this list.
"9 See CRM,para. 2.1.
4G0See "Report of the Commander ofthe Post Rio Colorado-ColoniaIrazito theGeneral
Inspector of the Treasur31 March 1894". CRM, Annexes, Vol. VIAmex 211; see also
"Report ofRafaelCmz, Commanderof the Post Rio Colorado, tothe General inspeof the
Treasury,Note No.89, 10March 1895". CRM, hexes, Vol.VI, hex 212; "Report of the
Sub-Inspectorto theTreasofColorado tohe General Inspectorof the Treasury,24 November
1908". CRM, Annexes,Vol. VI,A1~1ex215; "Report ofthe Sub-Inspector to the Treasuryof
Barradel ColoradototheGeneralInspectorof the Treasury,7 December190CRM, Annexes,
Vol. VI,Annex 216,
461"Reportof the Commanderof the PostRia Caiorado-ColoniaIraziito the General.Iofpector
the Treasur31March 1894". CRM,hexes, Vol.VI,Annex 211. ALLEGED LOCATION5 WHERE COSTARlCAN
5.69. The reporof 10 March 1895 describes the aofacoverage otwo
Guard postonthe bank of the ColoRiver,antwo onthe Costa Ricanbankofthe SanJuanRive?". Allof theareasmentionedaxein CostaRica.Theareas
covered bythetwopostson the SanJuan,at themouths ofthe Sarapiqui and Sm
Carlos Rivers,extendfiomthoseposts upriwr, that is, insideCostaRicanwaters.
Thelistedcoveragedoesnot includethe SanJuan. Thesamereportdescribesthe
seim of ''thee boats caving imported goodsfrom San Juan deI Norte, that
attempted to go unnoticed by the guardsinorderto avoidthe payment of export
rights..?"63.Thedescriptionof the event(theonlycustoms seizurementionedin
the report)makesit plain that it occurredupon theboats'entryinto Costa&can
waters. Equallyunhelpfulto Costa Rica is thereport:of7December1909which
was presumablysubrniaedbecause of the statement that"I ordered, up to the
SarapiquiGuardPost, to conduct ageneralhomesearchof the neighbors on the
marginsofthe SanJuanRiver atthebeginningofthismonthwiththe purposeof
finding out whether any revolutionarieshad taken refuge theref14", Quite
obviously,a '"generalhome search"couldonlybe undertakenon land, Thereis
no mention or reason $0 assume that navigationon the San Juan River was
attendant to this activity.
5.70. Citing these very reports, Costa Rica argues in her Memorial that
9,465
"Lu'jndoubtedlthesefiscalguards usedthe SanJuanto performtheir duties .
Tothe contrary,thereports themselves makeno mentionofanynavigationonthe
SanJuanRiver, and leavenoreasonto presume that itoccurred. All othe Costa
Rican posts mentioned in the reports were accessibleby river transport from
46See"ReportofRafaelCrua,Commander of thPostRioColoradoto theGenerainspectorof
theTreasurNote No.89, 1March1885".CRM,Annexes,Vol. VT,Annex212.
"'Ibid.p. 865.
4G"ReportoftheSub-hspectortothTreasuryofBarradelColoradtotheGeneralInspectorof
theTreasur7, December1909".CM, Annexes,VolVI,Annex 216.
CRM, para.4.89.within Costa Rica, withoutthe need to transitheSan JuanRiver.And a11of the
mentioned riparian communities wereaccessible to the Costa Rican Guards
without traversingthe SanJuanRiver.
5.71. CostaRica's evidence jumps fiom 1908to 191 5,with the presentationof
tworeportsfromthe customsinspectoratRosalia,a CostaRicantownlocatedon
the San Carlos River, upstream from its mouth, whichis at the San Juan River.
These reports describe activities ientirelyinside CostaRica, between Rosalia
andBoca San ~arlo$~~.Thereisnomentionofanyactivityonthe San Juan.
5.72. The nextjump in CostaRica'sevidenceIsfrom 19 15 to 1968,a distance
of 53 years for which she providesno evidenceof her activities. CostaRica
presents three 1968 reports from a Revenue Guard inspector at Boca San
~arlos"~. Woneof them mentionsanynavigationontheSan Jua Rniver,letalone
navigationrelatedorconnected toenjoymentofthe"purposesofcommerce."The
reportof 26 July 1968 istypical.Itsays "I am sendinga cornplaintfiledin this
office by Mr. Pablo Lozano, regarding lpecac located in the place named
MFIERMTO, by the SatrJuan ~ivef"'~~.This is a referenceto a tiny riparian
hamleton theCostaRicanbank of the river.It is accessiblby land from Boca
4" See"Note kom Commandantof the RosaliRevenueGuard tothe DeputyInspectorof the
Treasury,20 Octobe1915". CRR, Vol. 1Annex 31; see al"Notefrom Commandant of the
RosaliaRevenueGuard totheDeputyInspectooftheTreasury,18December1915". CRR,Vol.
11Annex32.
467See "Notefram Sub Inspectoof thRevenue Guard inBoca deSan Carlos to Lieutenant
Lopez ofthe GeneralInspectorateofthe Treasury,26 July 1968".Vol.I%, nnex33;see
also'WotefromSubInspectoroftheRevenue GuardinBocade SanCarlostoLieutenant Lopez
oftheGeneralInspectorateoftheTreasury,29July1968CRR, Vol.11Annex 34; 'Wotefrom
Revenue Guardof Bocade SaoCarlosto ChiefofPersonnelof the General Inspectofa.the
Treasury,5August1968".CRR,Vol.11,Annex35.
468'WotefromSubInspectorof.theRevenueGuardinBocade SanCarIostoLieutenanLopezof
theGeneralInspectoraof theTreasury,July1968". CRR,Vol.TI,Annex33.San Carlos, There isno indicationin the report of any use of the San Juan River
to get there, or if there were, what relevanceit wouldhave, since the matter did
not involve commerce on theriver. The same could be said for the report of 29
July 1968, whichmentionsonly that the inspector went"to the place callePoco
Sol, by the SanJuan River, in order to verify the felling of tree.77469.Again,
there isno mention of navigation on the San Juan River, and the event had no
apparentrelationto commerceon the river.
5-73. Finally, Costa Rica jumps another 23 years, fxom 1968 to 1991, and
presents threereports fromthe Chief of Police atPuerto Viejo de Sarapiquidated,
respectively August 1991, April 1992 and May 199~~". None of these reports
refers to any specific activities carried outon the San Juan River, let done
activities related to, connectedwith, or to protect the enjoyment of navigation
"conobjetos de comercio." There is no mention of any customs enforcement,
because thew was no customs activity; thecustoms post thathad formerlybeen at
Puerto Viejo de Sarapiqui had been removed decades earlier. The May 1992
report statesthat: "On Thursday, 21 May 1992, we patrolled on the Sm Juan
River up to IslstsMorganand to the mouth ofSan JuandelNorte, and everything
was normal""'. This is the first and only mention of any patrolling activityby
Costa Rica on the San Juan River between 1858 and 1992, and there is no
"' Wote from SubInspectorof the RevenGuardinBoca de SanCarlosto Lieutenant Lopezof
the GeneralInspectorateofthe Treasury,29 July 1968". CRR,V, nnex34.
47See"Costa RicanPolice Major, Francisco CorCordoba,to CostaRicanMinisterofPublic
SecuritLuisFishmanZ., NoteNo. C.D. 0666-91,19August 1991". CRR,Vol, 11,Annex 36;
see also "Costa RicanPoliceMajorand Chief ofthe Post, Francisco CordobaCordoba,to Costa
Rican Directorof CivilGuard,Lieutenant ColonelGuillermoSkenz,NoteNo. C.D.O.81-92,
29 April 1992"CRR, Vol. 11,Anne37; seealso"CostaRicanChiefof Post, Major Francisco
Cordoba Cordoba,to Costa RicaDirectorof the Civil Guard, Lieutenant ColonelGuilleao
Siem, NoteNo. C.A. 372-92,25 May 1992". CRVol.11Annex38.
47"Costa Rican Chiefof Post, MajorFrancisco CordobaCordoba,to CostaRican Directorof the
Civil Guard, LieutenantColonelGuillemo Sienz, Nob No. C.A.372-9May5 1992". CRR,
Vol. 1, nnex38.explanation as to the purpose of the activity. There is no indication of any
relation to,or connectionwith, the enjoymentofthe "purposesof commerce."
5.74. That is all the evidence Costa Ricapresents, in her two pleadings and
related Annexes,on her use of revenue or other fiscal vessels to "protect" her
enjoymentof navigational commerceon the San Juan. By the 1970s,Costa Rica
had removed her customs inspectionfacilities from the right bank of the San
Juan, as well as from Puerto Viejo de Sarapiquiand Rosalia. Thereafter, there
was no customsenforcement with respectto any goods emanatingfromthe Costa
Rican riparian communitieson the San Juan, or from San Juan del Norte. That
situation has persisted to the present day. This is confirmed by the affidavit
testimony, attached hereto, of each sf the fiveNicaraguan Army commanders
who have been directly responsiblefor maintaining security on the San Juan
between 1979 and 2006~~~. The commanders alltestify that the only CostaRican
commerce on the river has been local, that it has never been threatened or
endangered,that Costa Rica has never dispatchedpublic vessels to the San Juan
for thepurpose of"protecting"this commerce,thatCostaRicahasnot maintained
any customsposts on her sideof the river or required goods entering CostaRica
from the §an Juan to pass through any customsinspection, and that Costa Rica
has never carried out or attemptedto carry out any customs enforcementactivity
on the The following conclusions musttherefore be drawn: (1) Costa
Riczthas not demonstrated thatshe has ever employedrevenue servicevessels,or
otherpublic vessels,on the SanJuan Riverfar the purposeof protecting her right
472SeeTaIaverAffidavitMR,Vol.11,Annex78; see alsShnchezAffidavit,NR,Vol.11,Annex
77;see alsoLargaespadaAffidaviNR, Vol. 11Annex 72; see also MembreiioAffidavNR,
Vol.11,Annex73;seealsoCentenoAffidaviNR, VoI.11,Annex 69.
473See TalaveraAffidavit,para8-10.NR, Vol. 11,Annex78;see alsoSanchezAffidavit,
paras4 & 6-7.NR,Vol. 11,Annex 77;seealsoLargaespadAaffidaviparas.3 & 7-9. NR,Vol.
11Annex 72;Membreiio Affidavit,paras.4& 9-10.NR,VoI. 11Annex 73;CentenoAffidavit,
para.4. NIIVol.11,Annex69.of navigation"conobjetos de comevcio" on the river;and(2) CostaRica hasnot
demonstratedthatNicaraguahas everviolatedthe right referred ta in paragraph
Second ofthe Cleveland Award.
5.75. WhileCosta Rica hasneversenther revenue orother public vesselsonto
the SanJuan Riverfor the purpose ofprotecting navigationalcommerce, she has
sentpublicvesselsontothe fiverfar threeotherpurposessince 1858,as indicated
above: to bring suppliesand replacementpersonnel to policeposts; to cany out
occasionallaw enforcementactivities;and to providesocial servicesto riparian
cammunities. Theseactualuses ofthe river by CostaRica, and the responsesof
Nicaraguan authoritiesin grantingor denyingpermissionfor them, are discussed
in turbnelow.
5.76, As explainedabove, Costa Ricadoes not havea rightto use theSanJuan
Riverfor thepwpose ofbringing suppliesor replacementpersonnelto her police
posts. Thispurposeis far removedfrom navigation con objetosde comercio or
navigationwith vesselsof the revenueservice toprotect theright to navigatefor
the"purposes of commerce."As such,it is not a right emanatingfrom the 1858
Treaty or the Cleveland Award.Since there is no right, CostaRica's use of the
riverfor thispurpose hasalwaysbeen subjecttoNicaragua'sdiscretion.
5.77. CostaRica claimsthather securityforces have habituallynavigatedonthe
riverto supplyand bring replacementtroops to policeposts, and that they have
done so without obtaining prior authorization from ~icaragua~~~.But the
"',SeeCRR,paras.3.91-3.95,4.50,4.70-4.73.evidence Costa Rica offers does not support this claim.In fact, Costa Rica's
documentaryevidenceon this supposedpractice covers only a fow-year period,
between 1994 and 1998. Costa Rica presents no documentary evidence that the
practice existedduringthe first13yearsafterthe Treatyof Limitswas executed,
between 1858and 1994;and she admits that she stopped navigatingon the river
for the purpose of supplyingher police posts in mid-1998and never resumed this
activity475.
1. Costa Ricu'sEvidenceRegardingtheSupply ofBorderPosts
5.78, The documentation suppliedby CostaRica concerningher usesof theSan
Juan River during the period 1994-1998consists of a single report, dated 18
December 1998, which was prepared by the Commander of the police post at
Boca Sarapiqui,Major HugoEspinoza Rodriguezof the Guardiu ~ivi$~~. The
23-pagereport helpfully presents ayear-by-yewaccountof navigationon the San
Juanby CostaRican public vessels. Citingthisreport, Costa Ricaclaimsthat: "A
register of Costa Rica's police navigation shows thatbetween August and
December 1994therewere 33 return journeys onthe Riverto Barradel Colorado,
107during 1995, 126in1997 andfive inJune 1998. Theregister alsoshowsthat
Costa Rica's police navigatedthe San Juan in the directiof Boca San Carlos
twicein February 1995,18 times in 1996,40 timesin 1997and23 times between
January and June 1998''~~. This is incorrect. The figures mentioneby Costa
Rica cannot have been derived from Annex 227, orfkom any other document
47See CRM, paras.5.105,5.109-5.seealso CRR,paras.4.50-4.52.
476SeeFirst CommandantM, ayor Hugo Espinoxa,SarapiquiAtntCommand,to General
Director ofthe BorderPolice, ColonelMax CayetanoVega,Note 3054-98,PDecember
1998.CRM,Annexes,Vol.VZ,Annex227.
47CRM, para.4.105.attached to Costa Rica's pleadings. The report itselfidentifies only ninejourneys
on the river, in total, duri1994, 26 in 1995,23 in 1996, none in 1997and two
in 1998. But more important than the number ofjourneys istheir purpose. A
close reading ofthis detailed account of the actual uses of the SanJuan River by
Costa.Rican public authorities reveals that there was not a single episode of
customs or tax law enforcement, not a single episode of protection of commerce
on the river,and not a single report of threats or danger to such comerce, The
document shows that Costa Rica simply did not use the river in any manner
related to, connected with, or toprotect the right of navigation"con objetos de
comercio." Instead, the principal use of the river bCosta Rican public vessels
was for the purpose of supplying and bringing replacetnents to police posts at
various locations on the right bank of the San JuanBy far, the largest numbeof
journeys was for this purpose. Apparently, not all sf these journeys were
specificallyreported.The section covering 1997, which does not describe what
voyages were made, says that: "no relevant eventswere recorded on the San Juan
River. Everything went normal during this period, besides for some small
operations related to undocumented Nicaraguan immigrants who came into the
national territory. The regular border staff'relief changes were made normally
while navigatingthe San Juan ~iver"~~~
5.79. The report does not state whether Costa Rican authorities obtained, or did
not obtain, permission fromtheir Nicaraguan counterpartsto navigate on the river
prior to undertaking their "regular border staff relief changes." Nor does the
report state what conditions Nicaragua imposed. It is completely silent on these
subjects. It merely states in several places that "no anomaliesre reported, but
47~6
FirsCommandant, MayorHugo Espinoza,SasapiquiAtlanticCommand,tGeneralDirector
ofBorder Police, ColonelMaxCayetano Vega,Note 3054-88,P.F.S.,18 December 1998".
CRM, Annexes,Vol.VI, Annex 227, p.962.only activities related therelief of personnel'y4919941, orthat "[elveqthing
went normal and only carrying out the regular stareliefchanges were made at
the borderposts"480(19961,or that "regular border staffrelief chanwere made
nonnally while navigatingthe SanJuan River" (1997)48'.Costa Rica supplied no
documentary evidence to demonstrate what the "normal" practice was, with
respect toher use of the river to bring supplies and relief staff to her border posts,
during thisperiod.
5.80. The evidence issuppliedby the Nicaraguan Army commanderswho were
directly responsible for security on the SstnJuan River betwee1994and 1998,
and wha issued authorizationsto Costa kca's Guctrdia Civi tlnavigate on the
river to conduct their supply and relief operations. According thisevidence,
the Guardia Civil routinely requested and obtained prior authorization from theNicaraguan authoritiesbeforesending its vesselsonmissionsto supplytheCosta
Rican borderposts. As testifiedby BrigadierGeneralDenis Membreilo Rivas,
who commandedNicaragua's SoutherM n ilitary DetachmenfromFebruary 1992
to December1995:
"During this period, I was requesteby a Guardia Civil
Commmder attheborderpostatLosChiles,Costa Rica,to
authorizetheGuardia Civiltonavigateintheir own vessels
along theSanJuanbetweentheirpostat Boca de Sarapiqd
and their postsat Delta(wherethe ColoradoRiver begins)
and Barra del Coloradoto bring suppliesand replacement
personnel to those posts. The Costa Rican Commander
explained that it would facilitate these supply and
replacement operationsif theuardia Civil coulddo itby
river,because the roadswere not very good. I gave my
perrnissian for this practice. Prior to each of these
operations, which occurred approximately once every
month duringmytenureat theDetachment, a GzaavdiaCivil
officer requestedauthorizationto make thejourney. I gave
the authorization, and communicated it by radio to the
Nicaraguan military post at Boca de Sarapiqui. The
Gzdardz' aivilvesselthenreportedto thatpost as itbegan
its journey, andreportedto the Nicaraguanpost at Delta
when it left Nicaraguan waters. At a11 times while
navigatingon the SariJuan,the CostaRicanofficers were
prohibitedfrombearing arms; theywere required to carry
theirarmson the floor oftheboat.At somepoint, 1 began
to requite that a Nicaraguan soldierbowd the vessel at
Boca de Sarapiqui and accompanyit during its journey
through the Nicaraguanriver; he disembarked at Delta,
when the vessel entered the Colorado River.Similarly,
whenevera Nicaraguan Armyvessel enteredCosta Rican
waters, either to attend meetings with Gua~dia Civil
off~cersor as part of ajoint operation,we were requibyd
the CostaRicanstorequestpermissionbeforeenteringtheir
territory,andto placeow arms on the flaor of the vessel.
We considered thisa normalpractice in deferenceto the
Statethat exercisessovereignty overthewaters.82
48Mernbreiioffidavit,para1NR,Vol. 1,nnex73.53 1. The Costa Rican reportof18 December1998confirmsthat this practice
was mutual. There are several examples mentionedin that report.: on 23
September 1994 a Nicaraguan Army vessel at Boca de Sarapiqui "requested
permissionto enter theCoseaRican territorythroughinlad waterwaywith the
purpose of attendinga meetingat theAtlanticCommand.ColonelWalter Monge
Rodriguez, FirstCommanderof the Unit is notifiedthereof and he himself
authorizes thisUnit toenterouterritorwithout on 1January 1995, a
sirnil aqsuest was made and the Costa Rican commander "granted the
authorization...and stated that they were authorized to enter that jurisdiction
provided that they did not bear any similarrequests were made and
authorizationsgiven, subjetotherequirementthat theNicaraguanArmyvessel
carry no arms while in CostaRican waters, on10 August 1995 and 26 March
1996485.
2. CostaRiccs'sChangein Policy inMay-July 1998,andNicaragua's
Response
5.32. The practice continueunderBrigadier GeneralMembrefio'ssuccessoras
Commander of Nicaragua's SouthernMilitary Detachment,Brigadier General.
CesarOvidio Largaespada Pallaviciniwho held thispositionfiomJanuary 1996
toOctober1997. Astestified byBrigadierGeneralLstrgaespada:
""Relationsbetween the Nicaraguan and Costa Rican
securitypersonnelstationedalongthe San.JuanRiver were
4gCRM, Annexes,VolVl,Annex227,p.944.
4aIbid .947.
48Seeibid .,.953,959. generallyexcellent duringthe time1 sewed as Chief ofthe
Military Detachment. Periodically, theNicaraguan post
commanders would meet with their Costa Rican
counterparts, either atthe Nicaraguanor the Costa Rican
post, andexchangeinformationoncriminalactivity.
...My headquartersalso authorizedthe Guardia Civilto
navigateon the river, intheirownvessels,for the purpose
ofbringing suppliestotheir postsatBocaSanCarlos, Boca
de Sarapiquiand Delta.Thesetripsweremade on average
once every month. The procedure was as follows: the
Guardia Civil requestedauthorizationto make a particralax
tripfor the purposeof bringingsuppliesto particular posts
on a particular date; authorizationwould be given by
Nicaragua, andthe Guardia Civil vessel would begin its
journey by reporting to the Nicaraguan post across the
river; a Nicaraguan sergeant wouldboard the vessel and
would accompany themon their itineraryon the San Juan
River; the Guardia Civilpersonnelwere not permitted to
travel armed,so their rifleswereplacedonthe floorof the
vessel and the Nicaraguan.sergeant made sure that the
stayedtherewhilethevesselwasinNicaraguan water^^"^^
5.83. Costa Rica has submitted affidavits.fromseveral of her Guardia Civil
officers who participated in these supplyand relief missions on the San Juan
River, for the purpose of supportingher claimthat theGuardia Civilregularly
navigatedon the riverwith their armsand withoutpermissionfrom Nicaragua.
But even these affidavits corroboratethe testimonof GeneralsMembrehoand
Largaespadaby stating that"fromaround nineteenninety-fourand thereafter,the
NicaraguanArmyasked one of the membersof the [GuavdiaCivil] to disembark
leavingtheirarmsonthevesselinorderto infom or communicatethe navigation
to theArmy authorities.Later,,,theNicaraguanAmy determinedthat thevessel
486Largaespadaffidavit,paras.NR,Vol.11,Anncx72.
267comingfrom Costa Rica had tobe accompaniedduringthe navigation.. .,748me
Guardia Civi officers acknowIedgethat the Nicaraguan authorities were always
notified in advanceof any voyageby a Costa &can public vessel, although they
attempt todownplaythe significanceof this by claiming it was"out of courtesy
,489
and as ameasureof mutualsecurity'A88 or"for coordinationpurposes ,
534, The normal practice of Costa Rican requests and Nicaraguan
authorizations continued into 1998, under Brigadier General Largaespada7s
successoras Commanderofthe SouthernMilitary Detachment,Brigadier General
Francisco Orlando Talavera Siles, who exercisedresponsibility for security over
the San Juan River from October 1997 until June 2000. Between January and
May 1998,the normalpractice continued withoutincident. That is, the Guardia
Civil requested authorizationfrom the NicaraguanArmyprior to each voyage of
one of its vessels to suppland relievestaff at its posts along the river, and the
Nicaraguan Army grantedthis authorization, subjecto the requirement thatthe
Costa Rican vessel report at the Nicaraguan military posts upon entering and
exiting the San Juan, and that theGuardiaCivil officers navigate unarmed490.
This state of normalcy is confirmed by the 18 December 1998 report of the
Gua~diaCivilcommanderat Boca Saxapiqui:'Trom January 98 through May 98,
487AffidavitoFirstLieutenaDanielSotoMontero(GuardiaCivil oCostaRica), 27 January
2006. CRM, Annexes,VolIV,Annex 89,p.480.
488Affidavitof SergeCarloLuisAlvaradoShnchm(GuardirCivilofCostahca),27 January
2006. CRM,Annexes,Vol.IV,Annex88, p.476.
489AffidavitDanielSotoMontero.CRM, Annexes,Vol.IV,Annex89,p. 479.
"' SeeTalaverAffidavipara. 3. NVol.11,Annex78.the book of minutes comprehensiveof two hundred pages doesnot record any
,741
irregularitiesor eventsonthe SanJuanRiverduringthesemonths .
5.85. The Memorial itself recognizes that prior to July 1998 there were no
Nicaraguan violationsof Costa Rica's rights "of a systematic or permanent
character"". "Bcyontrast in the periodafter July 1998,Nicaragua adopted a
policy involving systematicand permanent violations of Costa Rica's rights,
which continueto the present It is important,therefore,to examinethe
events that occurred in the middle of 1998, which gave rise to Costa Rica7s
claims'inthiscase.
5.86. 'we begin with Costa Rica's own contemporaneousaccount of these
events, as described in the 18 December 1998 report from the Costa Rican
commander atBoca ~ara~icjd'~. The accountstarts on 1 June 1998,with the
report: of a complaint from Colonel (now Brigadier General)Talavera, the
CommanderofNicaragua'sSouthernMilitary Detachment,about recent incidents
inwhich Guardia Civil vessels had detainedNicaraguancitizens navigatingon
the San Juan, on the suspicion that they were planning to enter Costa Rica
illegally:"Colonel Talavera of the FJicaraguanAnny] complained that no one
navigating theSan Juan River should be detained, since accordingto Colonel
Talavera,same days ago some officers ftom Delta Zero[a Guardia Civilpost]
had forcedsomepersonsto get off the boat. Thatevery timepersonnelfromthe
4"CRM,Annexes, Vol, VI,Annex227,p. 962.
49CIZM,para.3.01.
49"~id.,para.3.02.
49See "FirsCommandant,MayorHugo Espinozato GeneralDirectorof BorderPolice,"18
December1998. CRM, Annexes,Vof.VI,Amex 227.Atlantic Command[of the GuardiaCiviq navigatethe SanJuan River,they milst
placethe ams 011thefloorofthe ~essel.""~
5.87. The seizure and detentionof Nicaraguan citizensnavigating on the San
Juan by the Guavdiu Civi lbout which ColonelTaIaveracomplained, reflected
the implementation by the Guardia Civi olf a new Costa Rican government
policy, adopted inMay 1998by the incomingadministrationofPresident Miguel
Angel Rodriguez. Prior thereto, Costa Ricahad not detained or attempted to
detain Nicaraguan citizenson theSan Juan.Indeed,priorto the comingto power
of President Rodriguez, Guavdia Civil vessels had complied with all the
conditions establishedby the Nicaraguan Amy, including the requirement that
they navigatewarned and accompaniedby Nicaraguansoldiers. However, on 8
May 1998,the same day that President Rodrigueztook his oath of office, his
newly-appointedMinisterof Public SecurityJuan RafaelLizano, announcedthat
Costa Rica was adopting amuch more aggressivepolicyon theSanJuan Riverto
confront immigration from Nicaragua. As reported in the Costa Rican press:
"The Minister,..revealedthat throw beganbecausethe fomer Governmenthad
permittedthe presence ofrnicaraguan] militaryescortson the Costa Rican boats,
a situationhe prohibiteupon assumingthe responsibilityfor the securityof the
,496
countryon 8May.
5.88. Consistent with the changed policy of the newly-installed Costa Rican
government, the Guardia Civi gnored the conditions imposedby Nicaragua,
496'cC~UnfyirminMeetingwith.h~icara~uanN s"c'n,29 July 1998NR, Vol.11hex
19 (OriginalSpanis"ElMinistrorevel6adernque el lio naci6porquGobiernoanterior
permiti6 lpresencidecustodiomilitareselas lancbasticasituacibn que 61prohia1b
asumirlaseguridaddpaisel8demayo.").which it had previouslyaccepted,and began to send itsvessels onto the river
armed and unaccompaniedby Nicaraguan soldiers,and for the purpose of
intercepting and detaining Nicaraguans thoughtto bebound illegally for Costa
Rica. According to the Costa Rican report of 18 December 1998, under the
heading "Captureof Undocumented Personsat the Border": ""On 14-06-98, at
14:00 hows,JorgePadillafiomPostDelta # 13 at Boca Tapada,Pital,San Carlos
reported that he kept four undocumented Nicaraguancitizens and they were
,497
transportedto theImmigrationOffice of San Carlosat 16:02 haws ,
5.89. Accordingto the same Costa Ricanreport,similarincidentsoccurredon
17 hne, 20 Jrxne,23 June and 24 June, with the Guurdia Civi lontinuing to
implement:CostaRca's aggressivenew policyof detaining Nicaraguanson the
SanJuan River on the simplesuspicionthatthey wereattemptingto enter Costa
Rica illegally;once interceptedonthe river, theNicaraguans werearrested by the
Ouardia Civil and brought to the CostaRican side for prosecutio$98. In
response to these actions, which Nicaragua consideredunprecedented and a
violation of her sovereignty, Brigadier GeneralTalavera arranged to meet
personallywith the regionai commander ofthe GuavdiaCivil, Colonel Walter
Navmo Rornero, atthe latter's headquartersin Los Chiles, Costa Rica. The
meeting was scheduledfor 25 June, but although Brigadier General Talavera
arrived attheappointedtime and location, hisCostaRicancounterpart:did not,
and no meetingtook place499.Whenthe two seniorofficers subsequentlymet,
BrigadierGeneral TalaveraprotestedCostaRica'sactionson the San Juan, and
49CRM,Annexes, Vol.VI,Annex 227,p.963.
49See""CostRaicaGuardsPointGunsat NicaraguaBoaters",LaPrensa,30 Jul1998).NR,
VoI.II, Annex20; seealso 'XicaraguansDenounceCosta Rican Harassmenton National
TerritoryLaPrenm, 2 Aug.1998).NR, Vol.JI,Annex21.
49SeeTaIaveraAffidavit,paraNR, Vol.IT,Annex78.reminded ColonelNavarra that Costa Rica was not authorized to interfere with
500
Nicaraguansnavigatingon the river, or to carryor use ams while on the river .
ColonelNavarro responded: "[Ijfthe Army of Nicaragua was not going to stop
Nicaraguans .fromusing the river to enter Costa Rica illegally,then the Gzaurdiu
Civilwould do itv5''. ColonelNavarro'sposition was fully consistentwith that
of the new Costa Rican government in San JosC. As stated by then Foreign
Minister Ricardo Rojas: "Surveillanceby Costa Rica is necessary in that zone
because there is a lot of illegal immigration, smugglingand other anomalies,
which make itnecessary ro guard that southern part of the river."'02 From
Nicaragua'sperspective,CostaRica was asserting, forthe first time in 140 years
since the Treaty ofLimits was signed,a new "right" to navigate onthe San Juan
River with public vesselsfoxthe purpose of law enforcement -- wholly unrelated
to navigation "conobjetos de comercio" -- an attribute of sovereigntyvestedin
Nicaragua, whosedominion and supreme control (sumo impsrio) over the river
had been recognized as"exclusive" inthe 1858 Treaty and ever since, The "last
straw," asfaras Nicaraguawas concerned,occwred on 7 July,when two Guurdia
Civi vesselsrandownand stopped a Nicaraguan passenger boatas it navigated
past the CostaRicanpost at La Cureiia.When the CostaRican officers attempted
to board the Nicaraguan boat and conduct a search they discovered that the
passengers included the Nicaraguan Minister of Tourism, and several my
o~~icers~~~.
SeeTalaverAffidavit,para4NR,Vol. XI,Annex78.
Ibid.
"AlemiinRejectArbitration",(La.Prensa, 25 July1NR,)VoI.11,Annex 18(Emphasis
added) (OriginSpanish:"La vigilancpor parkde CostaRicasedebea que por esa vise
presenta rnucha inmigraciilegalcontrabandosy otros anomalias, hacen necesariala
custodiadelapaxtcsmdel140.").
503SeeTalaveraAffidavit,p4.aNR,Vol.11,Amex 77.5,90. Following these actions by the Gurardia Civiland statementsby senior
Costa Rican authorities,Nicaragua decidednotto authorize Eurthe ravigationon
the San Juan by the Guurcaia Civil.Nicaragua'sdecision was communicatedto
the Guardiu Civil by BrigadierGeneralTalavera, through hislieutenant,on 14
July 1998~'~. This is reflected inthe CostaRicanpostcommander's reportof 18
December 1998:"On 14-06-98 [sic], at 16:IOhours, Sergeant WilliamNerrera
fiom Post Delta # 7, Costa Rica, informed that at the post appeared First
LieutenantRenatoRios-Chrdenas, Chief of the Postof the Nicaraguan Army at
Delta CostaRica [sic]. He informed that, as instructedby LieutenantColonel
Orlando Talavera, Commander of the South Detachment of the micaraguan
Army], the passageof anyCostaRican authority vesselswas restricted asof that
date throughthe SanJuan ~iver.'"" Costa Rica acknowledges in herMemorial
that 14 July 1998(not 14 June 1998, as erroneouslyrecordedin her Annex 227)
was the date on which Brigadier General Talavera'smessage was delivered506.
On the same day, Costa Rica retaliated by imposing similar restrictions on
Nicaraguan Army vesselsseekingentryinto Costa Rican waters,accordingto the
contemporaneous Costa Ricanreport: "at 18:10 hours, Major Hugo Espinoza-
Rodriguez informed...thatas ofthattimeand date,entranceaf anyofficerof the
micaraguan Army]or of anyNicaraguanpolice officerintoCostaRicanterritory
was prohibited.'J07
50See"BorderROWwith Nicaraguan (s", acibn,165uI1998).NR, Vol.11Annex17; see
alsoTalaveAffidavipara5. m, Vol. 11,Annex78.
'0'mote of the Intend[sicCommanderin Sservice [siofAtlantic Command, Sarapiqui,
DanieSotoMontero,to CostaRicanForeiMinistry14February2006". CRM,Annexes,Vol.
VI,Annex240,p.1049.
'0SeeCRM, para5.110.
'0CRh4,Annexes,Val.VI,Annex227,p. 964.5+91, Nicaragua's account of the facts is not materially different fkom that
provided by Costa Rica. Brigadier General Talaverahas confirmedthat in June
1998the Guardia Civi began to detainNicaraguancitizenswho were navigating
on the San Juan and suspectedof planningto enter CostaRica illegl1o8. Upon
learning of these unauthorized activities by the Guardia Civil, which he
considered anaffi-ontto Nicaragua's sovereignty,he protestedto the Costa Rican
authorities, and insisted that they stop detainingNicaraguans and refkain from
carryingor usingfirearmswhileonthe river. Whenthe Guavcdia Civildisregarded
his instructionand continuedto arrest Nicaraguanson the SanJuan, he advised
them that they were no longerauthorized to navigate on the river. Costa Rica
retaliated by forbidding Nicaraguan Army vessels from entering Costa Rican
waters,As Brigadier GeneralTalaveratestified:
"..[tJ]ntil June 1998 ...vessels of the Costa Rican
GzkardiaCivilwithout authorizationfrommyheadquarters,
began to intercept Nicaraguan vesselscaving Nicaraguan
passengers in Nicaraguan waters,based on the suspicion
that they were planning to enter Costa Rica illegally. The
Guardz'r rivil forced the Nicaraguan vessels toland on
Costa Rican territory, where all the passengers were
immediatelyarrested.I again protested these unauthorized
and un1awCI violations of Nicaragua's sovereignty to
Colonel Navarro, explaining that Nicaragua could not
tolerate the Guavdia Civil entering Nicaraguanwaters to
arrest Nicaraguan citizens in their own country, especially
without having violatedany law, and that they were not
found to have an illegal status in our territory. I
communicatedto him that he and his forceswere forbidden
from detaining Nicaraguanson the San Juan River, andI
reminded him that Costa Rican security personnel were
prohibitedfrom transporting,carrying,or usianns onthe
SanJuanriver. ColonelNavarrorespondedthat if the Army
ofNicaraguawas not going to stopNicaraguans from using
the riverto enter Costa Rica illegally, then tGuardia
SeeTalaveraAffidavit,para. 4. NR,Vol. 11,Annex78.
274 Civilwoulddo it. As a resultof that incident,and Colonel
Navarro's reksal to discontinue the Guardia Civil's
forcible detention of Nicaraguans, I ratified my order
prohibitingtheGum-diu Civilfromnavigatingonthe river.
Costa Rica responded by prohibitingany Nicaraguanarmy
or police officer ffam entering Costa Rican territory,
includingCosta Ricanrivers, anddeclaringthatif any such
personwere foundon Costa%can soilor watershe would
bedetained."509
3. DiplomaticEfovts ToRestore theStatus QUO Ante
5.92. Diplomatic effortsto resolve the dispute quicklyensued. The Chief of
Staff of the NicaraguanArmy, GeneralJavier Carrih, was sent by Nicaragua's
President tomeet withthe Costa RicanMinister of Public Securityand senior
GuardiaCivil GeneralCarrih offeredto resumeauthorizing the
Guardia Civilto navigate on the river to bring supplies and relief staff to its
riparian police posts, based on the same conditions thathad always applied,
namely:that requestsfor authorizationwouldbe madeprior to eachvoyage, that
the Guardia Civil vessels would stopand report at the NicaraguanArmyposts
upon enteringandexitingthe San Juan andthatthey would travelunarmed,with
weaponsstoredon the floor ofthe vessel5". CostaRicarejectedthe offerand no
agreementwasreached512.
5.93. By this time, publicsentimentin Nicaraguawas aroused, and pressure
was buildingforthe Government to standfirmagainst CostaRica's pretensions
with respect totheSan Juan. Nevertheless, diplomatiactivity continued,and on
Ibid.
'I0SeeCarrihnAffidavit,pa10. NR,VolIf,Annex68.
511Ibid.
532Ibid.30 July 1998,the NicaraguanMinisterof Defence,Jaime Cuadra, and the Costa
Rican Minister of Public Security, Juan Rafael Lizano, issued a joint
communiqu4announcing that:
"1. The crew of the vessels of the Public Force of Costa
Rica that carry out reIief of poliand the supply of the
borderpostslocatedon the wightbank of the §an Juan River
will navigatealong the aforementionedriver after having
given therequired notice carrying only their normal arms,
and the Nicaraguan authoritiesmay accompany the Costa
Ricanvessels making thisjourney alongthe Sm Juan River
in their own separate means of transportation. Should the
Nicaraguan vesselnot accompany theCosta Rican vessels,
the latter maycarry out their rounds in keepingwith the
corresponding border post reports as indicated in this
agreement.
2. The Costa Rican authorities must report to the
Nicaraguan ,,E3 throughout theirjowney along the San
Juan River.
5.94. The Cuadra-Lizano CommuniquC,as it came to be called, was never
implemented. Wadit been, it would have authorized theGuurdiaCivil toresume
navigating on the SariJuan River forthepurpose of bringing supplies and relief
staffto Costa Rica's police posts along the river,subject,as before, to prior
notification and reporting at all Nicaraguan Army posts en route, In contrast to
the prior authorizations issuedby Nicaragua, however, this one would have
enabledthe GuardjaCivil officersto carry "their normal arms,and would have
provided for Nicaraguan Army accompaniment in a separate vessel.
Implementation proved impossible becausereaction to the communiquC in
Nicaragua washostile.Publicopinionwas ovenvhelminglyagainstit, as were the
Nicaraguan President and Congress, who denounced it as a violation of the
Nicaraguan Constitution, whichforbids the transitf foreign militaryor security
Cuadra-LizanCommuniquC ,p.cit. CRM,Vol.13Annex28,p. 195(emphasisadded).
276forces throughNicaraguanterritory, evenfor humanitarian purposes, absentan
Act of~on~res$'~. On 18 August 1998,after due consideration,the Nicaraguan
Congress formally rejectedthe communiqu6,leaving itwithout legal effect5I5.
The following day, 19August 1998, Costa Ricaretaliatedby announcingthat it
would prohibit any navigation by the NicaraguanArmy on the Colarado River,
which connects theSanJuanRivertothesea5I6.
5-95. These mutual prohibitions have remainedin effect eversince. As stated
in Costa Rica's December 1998report of activitieson the river: "no relevant
eventswerereported during themonths of Augustand September of 1998,except
for the factthat'passageof Costa Ricm authoritiesthroughthe San Juan River
remained prohibited. FOPthis reason, border staff reliefchanges at the major
posts weremadeby landusingpolicecars"517.As of October1998: "no activity
wasrecorded ontheSanJuan River,allbeingnomal, conductingthe borderstaff
reliefby land,inourlandvehicleswithout anyspecialocc~~~ences"~'~.
5.96. InJuly2000, a high-level delegationfromCostaRica'sMinistryofPublic
Securitytravelledto Nicaraguato reopena dialogueon this matterwith General
Carrion, then the Nicaraguan Amxy Commander,and his staff+ Representing
Costa Rica were her new Minister of PublicSecurity, RogelioRarnosMartinez
'ISeePolitical ConstituofNicaraguaof 1987Art.92 provide"Thepassageorstationinof
foreignmilitaryvessels,airpandmachineryforhumanitariapnurposemay beauthorized,so
long asthese arerequesteby the Governmentof the Republic anratifiby the National
Assembly".NR, Vol.11Annex 54.
51SeeResolutionoftheRepublicof Nicaragua'NationalAssemblyontheJointCommvniqu6
Cuadra-Lizano,0 July1998.OrdinarySession#5.Managua, 18 August1998. NCM, Vof. 11,
Annex 66.
5'see""CostRaicaRetaliates"(,Prensa15August1998). NR,VoI.11,Annex 22.
'ICRM,Annexes, Vol.VE,Annex 227,p964.
'lIbid.(who had replaced Juan Rafael Lizano), Colonel Walter Navarro Rornero, and
Colonel CarlosAlvarado Valverde, International LegalAdvisor to the Ministry.
According to a contemporaneous Aide-Memoireof the meeting -- a meeting
which CostaRica failsto mention inboth herMemorial and herReply -- Minister
Rarnosproposed the reestablishmentof the previous conditions,stating that "We
understand yoursituation inprohibitingnavigationon the San JuanRiver, it is an
issue thatgoesbeyondyour control due to the level reachedby the events. I:hope
that you also understandour situation and our urgent needto supply and relieve
border post personnel"51g.Colonel Alvarado, theMinistry's InternationalLegal
Advisor, recalledthat under the prior arrangements "the police navigated with
their M-16 weapons stored on the bottom of the vessels (this is not armed
navigation but rather navigation with arms), with prior permission from the
Nicaraguan Army, which also verified the personnel and the contents of the
3,520
vessel at each micaraguan] post that the boat passed.. . General Carri6n
agreed that Nicaragua had expeditiously issued in "a fraternal spirit" verbal
permits and authorizations"for navigation on the river to supply and relieve the
personnel assignedto your country'sborder posts at Sarapiquiand El Delta.. ~521
But he also recalled that "[tlhe abuse of such pemissian led us to prohibit
navigation over the San Juan River, whenyou began to patrol the river to
intercept illegal immigrationand demandrights claimedby Minister Lizano, but
which our Highest Authority hasstatedthat you donot havew5**G . eneralCarri6n
stated that he wasprepared to work with hisCosta Rican counterpartsto find a
solution to their problem, but that this could only be accomplished formally
5'9Aide-Memoire: Meetingbetweenthe Commander-in-Chieff theNicaraguan Army and the
Ministerof Public Securityof CostaRica, 21 July 2000. Cani6n AffidAnnex 1 tothe
Affidavit. NR, Vol.11,Annex68.
520Ibid.
521Ibid.
522Ibld.through an Act of Congress, becauseof constiltional requirementsin Nicaragua.
"[Tloday," he said, "the only viable way" is for the National Assembly to
promulgate a law "that will allow for the permanent supply and relief of your
border post forces."'"
5.97. The law was never enacted. Strained bilateral relations with Costa Rica,
principallycausedby Costa Rica's aggressiveeffortsto extendher rights overthe
river beginning in May 1998, contfibuted to a political climateinManagua that
was not conduciveto approval ofthe necessarylegislation. As a consequence,the
prohibition on navigationon the San Juan Riverby the Guavdia Civi remains in
force. Nicaragua maintains thatshe is entitled to prohibit Costa Rica from using
the river to supply and bring relief staff to her ripariaborder posts, because
Nicaragua enjoys exclusive sovereignty over the river, and Costa Rica has no
right-- under the1858 Treaty ofLimitsor the ClevelandAward --to navigateon
the river for thispurpose,which is not relatlo, connectedwith, or to protect the
right of'navigation"con objetosde comercio."
5.98, Even if, avguerzdo,Costa Rica could be said to havea right to navigate on
the river for suppland staff reliefpurposes- a propositionNicaraguavigorously
opposes - the conditions Nicaraguaimposed during the period 1994-1998,when
she authorized Costa Rica to use the river for such purposes,were a reasonable
exercise of Nicaragua's sovereignpower over the river. The inconvenience
caused to Costa Rica by compliance with these conditionswas negligible. Costa
Rica herself acknowledges that her rights were not materially violated by the
system that was in place priorto July 1998''~. Even thereafter, when Nicaragua
523Ibid.
524SeeCRM, para5.112.ref sed to grant the Guardia Civil further authorizations to use the river, the
inconvenienceto CostaRica has been minimal. New roadways, and even landing
strips for aircraftmakesupply and staff reliefoperations by land practical and
convenient. As Costa Rica's own evidence shows, since the prohibition was
ordered in 1998,the Guardia Civilhas continuedto bring suppliesand reliestaff
to its posts alonthe San Juan River by land,as well as by internal Costa Rican
watercourses525, Roadways, whose construction began prior to 1998, now
connect to allof the Costa Rican border and police posts, and facilitasupply
and staff reliefoperations. Sketch Map 10 is an enlargement of the relevant
section of a Costa %can roadmap produced by Ecornapas S.A., a Costa Rican
firm t shows, in brown lines,the roadsconnected to Costa Rica's bee border
posts on the San Juan, at Boca San Carlos, Boca Saragiqui, and Delta. (The
completemap has been deposited withthe Court.)
SketchMap 10:Roads to CostaRican Military Posts (road depicted ibrown;
full mapsubmitted to the Court)
525SeeCRM, Annexes,Vol.VI,Annex227.5.99. The litany of ills imagined by Costa Rica as a result of her alleged
inabilityto supplyher riparianpostsvia the SanJuan --increasedcrime, drugand
arms trafficking,and illegalimmigration --havenot cometo pass. CostaRRa has
submitted no evidence of a growth in anyof these activities resulting from her
relianceon land transport,rather than river transport.,to supply her posts on the
SanJuan River.
4. The PracticePrior tothe 1990s
5.100. While the evidence is clear and uncontested that Costa Rica has not
supplied or brought relief staff to her border posts vithe San Juan since July
1998, there is a dispute overwhen the practice of supplyingthese posts via the
river began. As indicated, Costa Rica's documentary evidence shows that the
practice was in effect as of 1994~~: Nicaragua's evidence, consisting of the
testimonyof the militarycommanders of the SouthernMilitaryDetachment,dates
the beginning of the practice to some point in Brigadier GeneralMembrefio's
tenure as commander, which began in February 1992. The only other
documentaryevidence recording the use ofthe riverto supplyCostaltican border
or security posts is a report date9 March 1892 --100years earlier --from the
captain of the Costa Rican vesselAdela,reflecting hisrequest tothe Nicaraguan
commander at Castillo Viejo for permission to traverse the portionof the Sm
Juan above CastilloViejo, where both banks belongto Nicaragua, for thepurpose
ofnavigatingto the Rio Frio and into CostaRica to bring suppliesand staff relief
to the postatTorrim ~olorado~*~.TheAdela incident hasalreadybeen addressed
52SeeCRM, Annexes,Vol.Vl, Annex227.
s2See "Repor tf CirA. NavarroAssistantto theInspectoratet,o theGeneralInspectorof the
Treasury,March1892." CM, Annexes,Vol.VI, Annex209.at length by Costa ~ica~~'and by ~icaragua'~~,and it is also addressed in the
Appendix of thisRejoinder. Its mentionhere issimplyto point out, for the sake
of completeness, that it involved Costa Rica7snavigation on the river for the
purpose of supplying and bringing staff relief to a security post, and that, as
describedin paragraphs4.2.19-4.2.22of the Courater-Memorialt,he Costa Rican
securitypersonnelfelt it necessaryto hide theirweaponswhile traversingthe San
Juan. But whatever the interpretation of this event, it would still be a single
incident, and there is no documentary evidence, until 1994, of any regular
practicein regardto thesupplyof CostaRicanborder orpolice posts. Thereis no
evidenceof any kind, documentaryor testimonial,regarding Costa Rica's use of
the Sm Juanto supplyor bring staff reliefto her securityposts between 1892and
the 1960s.
5.101. With respect to the practice between the 1960s and the early 1490s,
Nicaragua has submitted affidavits fiom Eden Atanasio Pastora, a former
revolutionary (and later counterrevolutionary)commander who lived in Costa
Rica nearthe SanJuanRiver inthe 1960sand 1970s,and who conductedmilitary
operations against successiveNicaraguan governments from that region in the
1970s and 19802~" ad fi-omColonel Juan Bosco Centeno Arostegui, who
commandedNicaraguan governmentforces along the San JuanRiver from Julyto
December 1979, and fiom January 1982 to June 1991~~'. According to Mr.
Pastora, during the 1960s and 1970s, the Nicaraguan Government,under the
Somoza dictatorship,maintainedtenserelationswith CostaRica (which it always
suspected of extending sympathyand support to its opponents), and did not
SeeCRM,paras4 . .85-4.87;CRRpar1.15.
52See NCM,paras.4.2.19-4.2.22.
53See PastoraAffidav. R,Vol11,Annex75.
53See CentenoAffidavi. R,Vol11,Annex69.pennit Costa Rican security forces to navigate on the SanJuan River. Although
the Somoza dictatorship was overthrown in July 1979as the result of a popular
revolution, and the revolutionary government was friendlier to Costa Rica,
dissatisfaction with the new governmentsoon led to a counterrevolution,part of
which was led by Mr. Pastorafrom bases inCostaRica along the SanJuan River.
The river became a majorzone af cambat in the conflictthat engulfed Nicaragua
during the 1980s.As a result of the fighting, transit on the river was extremely
dangerous,and CostaRican securityvessels avoidedit532. Costa Rica7switnesses
agree, As testified by Costa Rican police officer DanielSoto Montero, whose
affidavit isannexed to the Reply: "due to the armed conflict that existed in
Nicaragua atthat time, theCostaRicanpolice did notnavigatethe San Juan River
for security reasonsas the river was within the war area"533.The war ended in
1990. However, far the first few years thereafter, as testified by Colonel
Centeno, Costa Rica7spolice posts along the right bank ofthe San Juan "were
supplied, and the policemenwere periodicallyrelieved, either by river transport
from within Costa Rica (via the San Carlos River or the SarapiqulRiver) or by
road. These policeposts were not supplied orrelievedby traversingthe San Juan
~iver"~~~.Costa Rica's police officers testify otherwise. Theystate that Costa
Rica police vessels began navigating the river in 1990 or 1991, without
restrictions imposed by Nicaragua. Nicaragua standsby the testimony of Mr.
Pastora and Colonel Centeno, and by the account of events given by Colonel
Alvarado, the International Legal Advisorto the Costa aican Ministry of Public
Security,inhis meeting withGeneralCarribn,theNicaraguanAmy Commander,
in July 2000.As recorded in the contemporaneousAide-Memoireconcerningthat
53SeeParstoAaffidavit,pa6. NR,VoI.11, nnex75.
53AffidavitoDanielSotoMontero,DeedNo. 151-1,27 January2006.CRM, Annexes,Vol.
TV,Annex 89,p.479.
r3CentenoAffidavit,paraNR, Vol.11,Annex69.meeting, Colonel Alvarado acknowledged, before 1998, the Guardics Civil
"navigated withtheir M-16 weapons storedon the bottom of the vessels ...with
prior permission from the Nicaraguan Amy, which also verifiedthe personnel
and contentsof the vesselat eachpost that theboat passed"535.However, even if
the affidavitssubmitted by Costa Rica were taken at face value, theywould not,
in light of the testimonial evidence covering the period prior to1990, and the
documentary and testimonial evidence covering the period from 1994 to the
present, supplythe basis for a conclusion thatCosta Rica had establisheda right
to navigate freely on the San Juan with her police vessels, orthat Nicaragua
accededto sucha right.
5.102. Costa Rica claimsin these proceedings thatshe has a right to carry out
law enforcement activitieson the Sm Juan River, andto navigateon the river for
the purposeof conductinglaw enforcementactivitieson the CostaRican bank of
the river. Again, this so-called rightis not encompassed within the right to
navigate on the river "conobjetos de comercio",or the right to navigate with
revenue service vesselsrelatedto, connected with,or to protect theenjoymentof
navigation "con objefos de cumercio." The evidentiary record, as well as the
language of the 1858 Treaty of Limits and the Cleveland Award, belie the
existence of such a right.The evidence shows that, on those extremely rare
occasions when Costa &can security personnel carried out law enforcement
activitieson the San Juan, it was always pursuant to express authorizationfiom
Nicaragua.
53rCarri6nAffidavAnnex 1 tothAffidavitNR,Vol. 11, nnex68.
2845.103. Costa Rica has submitted only three documents that mention law
enforcement activitiesby her securitypersonnelon the river. The firstof these
documentsis dated 31 October 1892, and is a report fromthe Chief ofthe Guard
atthe ColoradoRiverto theGeneral Inspectoraf theTreasury. He statesthat:
""Iould also like to communicate thatduringa meetingI
had with the Customs Manager of Nicaragua aboardthe
steamer, he gave me the authorityto seize all contraband
and criminalswho put up a resistancealong the coastsof
Nicaragua.He grantedme this powerwiththe authorityof
his government underthe condition that I would allow
them to enter Infiemito [in Costa %can territory]toseize
the contraband crossing toward"Castillo" so they could
protect themselves;that he would set up a guard in the
Colorado bihrcation md in the Nicaraguan coast for
mutualprotection whilepursuingsmugglersand criminals,
since this was the only way to guarantee protection for
honest farmers and settlerswho cometo take possessionof
thesecoasts."53G
5.104. Quite obviously, the source af the Costa Rican Guard's authority to
conduct the contemplatedlaw enforcement activitiesin Nicaragua'swaters was
the specificand limitedgrant conferredby theNicaraguanCustoms Manageron
behalf of thegovernment, It should alsobenotedthatthe permissiongranted by
Nicaragua was part of a reciprocal agreement, including authorization far
Nicaraguatoact withinCostaRicanterritory, for jointlawenforcementactivities.
If the1858 Treatyor the ClevelandAward had empoweredCostaRican security
forcesto conductlaw enforcement activitieson the San Juan River,the grant of
authorityfromtheNicaraguanCustomsManagerwould havebeenunnecessary.
'36Reportof the Chief theGuard [resguardoof CoIorado,JuaFrancisco Zeledbn, to the
GeneralInspectooftheTreasurof 31October 189CRM, Annexes,Vol.VIAnnex210.
2855.105. The second document submittedby Costa Rica relating to her alleged
rightto conduct law enforcementactivitieson the riveris the "JointCommunique
Issued by the Army of the Republic of Nicaragua and the Ministry of Public
Security of the Republic of Costa Rica" (the so-called Cuadra-Castro
Communiqui), dated 8 September 1995~~~T . he 103-yeargap between the first
two documents submitted by Costa Rica on this subject is revealing In Itself
Costa Rica has failed to submit any documentary evidence that she carried out
law enforcement activitieson the San Juan River between 1892 and 1995.
Notwithstanding the passage of more &an a century, there is a consistency
between the two documents. Like the 1892 document, the 1995 Joint
Communiqu6 pertains to joint law enforcement activities on the river by
Nicaraguan and Costa Rican security forces, and describes an express grant of
law enforcement authorityby Nicaragua to Costa Rica. The purposes of the
documentare statedin its firsttwo operativeparagraphs:
"FIRST: In the interests of strengthening the National
Security, sovereignty and independenceof our countries,
the Nicaraguan Army md the Costa Rican Public Farce
will coordinate,as of this date, the operationalplans that
involve our authorities and allow for the necessary
development of joint, parallel patrolling at the border of
both countries, therebyjoining forces in the battle against
the illegaltsaficking of persons, vehicles, contraband of
any natureandjoint operations, followingthe exchangeof
informationandplanningcarriedoutby bothparties.
SECOND:As of thismoment,the chiefs of theborderunits
of both countries will coordinate and cooperate more
closelyinplanningmd carryingoutjoint pasallelpatrolling
along our countries'ommon border, exchangingoperative
informationof the common entities involved, with respect
to all activities affecting the stabioftthe terrestrial and
aerial border zone related to drug trafficking, arms
537See "JoiCommuniqu@ Issueby the ArmyoftheRepublicofNicaraguaandthe Ministrof
Public SecurioftheRepublicofCostaRica,8 September1995"CRM,Vol.11, Annex 27. trafficking, smuggling, rustling, naval piracy, illegal
trafficking of persons and the presenceand/or passage of
criminalgangs."538
5,106, Once again, Costa Rica's ability to conductlaw enforcement activitieson
the San Juan River emanatedfrom an expressgrant of authorityby Nicaragua, as
part ofanagreement to engage injoint law enforcement.It did not emanate from
the 1858 Treaty or the Cleveland Award. The Cuadra-Castro Commmiqu6
formalized the joint law enforcementpatrols that were already being conducted
by the NicaraguanArmy andthe Costa RicanGuardia Civil. Theexistence ofthe
practice is shownin the third and finaldocumentsubmittedby Costa Ricarelated
to law enforcementactivities,which is the report of 18December 1998prepared
by the Costa Rican Guard Commanderat Boca de Sarapiqui,which has already
been discussedabove539.The report includesan entryfor 14 June 1995 underthe
heading "Delegation of the Command and the Sandinista Popular Army
Patrolling Operation," It describes a 'ljointpatrolling operatiincoordination
with the SandinistaArmy in Curefiaarea"540.A similarnote, for 27 June 1995,
describes a voyage '"to the place known as Banderas in Costa Rica ..in
coordinationwiththe SandinistaPopular Armywith the purpose of patrolling the
area, navigating on the San Juan ~ivet'~". A notation for 29 February 1996,
captioned "Cooperation of the Atlantic Cammand with the Sandinista Army
Trackingand Capture,"describes the&urdia Civil'sresponseto theNicaraguan
Army'srequest "to send a patrol unit to the river..orderto cooperatewith the
[Army] with the capturing of the [Nicaraguan]soldiers [who had deserted their
posts] in the area of el Jobo, Delta Costa Rica, located within Costa Rican
53Ibid.
53SeeCRM, Annexes,Vol.VI, Annex227.
54Ibid .950.
54Ibid.,951.juri~diction.''~'~Significantly, the 18 December1998 report, which covers the
period between 1994 and 1998, does not identify a single, specific law
enforcementactivity undertakenon the SanJuan River by Costa Rcan security
forces other than those conductedjointly with the NicaraguanAmy - except for
the arrest and detentionof suspected illegalimmigrants from Nicaragua in June
and July 1998, discussed above, which Nicaragua vigorously protested, and
which led Nicaragua to terminate the authorizationshe had previously given to
the GuardiaCivilto navigateon the San SuanRiver.
5.107. Apart from these documents, theMemorial cites two affidavits supplied
by Ezaardiu Civi officers. These affidavits,as discussed above,refer mainly to
Costa Rica's use of theriver to supply and bring relief staffher border posts.
They identify no specific law enforcementactivities carried out on the San Juan
River by Costa Rica alone. The only specific event mentioned involved joint
action with the Nicaraguan Amy. As testified by GuardiaCivil officer Daniel
Soto Montero: "the Atlantic Command conducted joint operations with the
Nicaraguan Armyduring thoseyears. Such was the case of thekidnapping of a
Germantounst and a Swisstourist guide in Boca Tapadade San Carlos, and the
kidnapping of a Dutch couple in Altamira.Both events occurred in nineteen
ninety-six"'".
5.108. The conclusionto be draw is that CostaRica has no independentright to
navigate on the San Suan River for the purpose of conducting law enforcement
activities, and that Costa Rica may only navigate on the riverto conduct law
54]bidp.957.
54AffidavitofDanielSotoMonter27January2005.CIIM,Annexes,Vol.VI,Annex89.enforcementactivitieswhen she hasthe expressauthorizationof Nicaraguato do
so.
5.109. Nicaraguadoesnot prohibitCostaRica ftom navigatingon the $an Juan
River, withher public vessels, for the purposeof providingmedical and other
socialservicesto the residents of ripariancommunities on Costa Rica's side of
the river.Nor isit Nicaragua'spolicyto discourage thedeliveryof such services
via the San Juan River. All that Nicaraguarequires is that the vessels usingthe
river for this purpose register theirpassengersand crew with the Nicaraguan
authoritiesatpointsof entry andexitonthe SanJuan River. Passengersand crew
must also comply with Nicaraguan immigrationrequirements, includingthe
possessionof a valid passportand,dependingon countryof origin,a Nicaraguan
visa.Thesearenot unreasonableconditions,andinanyevent,Nicaragua is free to
impose thembecause there is no right affordedto Costa Rica under the 1858
Treatyof Limits orthe ClevelandAwardto navigateonthe San Juan with public
vesselsfor thepurposeofprovidingsocialservices to ripasiancommunities.This
has nothing to do with navigating the .river'%onobjetos de cornercio", or
navigating itin a mannerrelatedto, connected with,or forprotecting navigation
far "p~oses of commerce."
5.110, As testified by Brigadier General Largaespada,who commanded the
SouthernMiIitaryDetachmentbetween January 1996 andOctober1997:
"On certain occasions,other Costa Rican officials - not
belongingto the GuavdiaCivil - requestedpermissionta
navigate theSan Juan River,among them, officials from
the SocialSecwityAgency ofCosta Rica and theMinistry
of Education.Thiswas alsothe casefor non-governmental
organizations, like the Costa RicanRed Cross, which brought medicines to the locaI river communities, or
transported the sick. These vessels followed the same
procedureas in the caseof theGardia Civil:permissionto
navigate was requested in advance; authorization was
given; the vessel reportedto the Nicaraguan border posts
and registered the passengersand crew; and it was allowed
to navigate. As a courtesy, no departure clearance
certificateswererequiredand nofees werecharged."'"
5.111. Costa Rica has produced no evidence to contradict Brigadier General
Largaespada's description of Nicaragua's reasonable and lawfill treatment of
Costa Rica's use of the river to deliver public services.In fact, Costa Rica's
evidence corroboratesBrigadier General Largaespada'saccount. As attested by
CostaRica'switness GabrielaMazariegosZamora, a medical doctorfor the Costa
Rican National Health Systemwho provided medical services to La Curefia,
locatedon the rightbank ofthe SanJuan,which shereachedby navigatingon the
river: "That inherpersonal experience,she visited La Curega on four occasions,
departingfromBoca SanCarlos.She statesthat, at thebeginningof eachjourney,
they were forced [translationnote: this is CostaRica's translationthe Spanish
word "obligados"which, in Nicaragua's view should be translated as the less
contentious"obligated" or "required"]to stopat the borderwithNicaragua where
they had to report to thearmy of that country, a requirementthat they always
complied with but for which they were never charged any fees. They had to
report: themselves again on their way back ~orn La Cweiia to Boca San
~arlos"~~'. To the same effect are the statements from other Costa Rican
witnesses: "She states that doctors and officials from the Costa Rican Social
SecurityInstitutionhavealways navigated theSanJuanRiver in orderto fxavelto
544
Largaespad affidavi,ara. 6NR,Vol.11,Annex72.
545Affidaviof AnaGabrielaMazariegosZamora, 14February2006CRM, Annexes,Vol. IV,
Annex 98.the townsof Boca Curefia and Chorreras, giventhat there are no adequate roads
to these towns. She points out that the Nicaraguans did not charge for this
navigation, although they did haveto report to the Nicaraguan post7y54"6; hat,
accordingto her duties, she personallymade heaIthcare visits to the towns of
Boca CureEiaand Chorreras, travellingtherevia the San Juan River. She states
that the Nicaraguan Army didnot cha~geforthis navigation,althoughtheywere
requiredto reportto thatpost.""
5.112. CostaRica complainsthat,aftersheinitiatedthis case,her healthcare and
other socialserviceproviders werepreventedfromnavigatingon the San Juan,
and were unable to continue delivering their services to the Costa Rican
communitiesonthe rightbankof the river, However,her evidence in supportof
this claim consistsprincipallyf affidavitsfromvarious Costa Ricangovernment
workers attestingto difficultiesthey allegtohaveencounteredin securing visas
fromNicaraguan consularauthoritiesthat wouldpermitthemto enter Nicaraguan
territory, Although CostaRica devotes fourpages of her Replyto a painstaking
accountof Dr. ThaisChing7s effortsto obtainaNicaraguanvisa sothat she could
navigateon the San Juan,the undisputed factis: she receivedone"'. Costa Rica
herself acknowledgesthat the difficultiesexperienced by Dr. Ching were not
typical:"Onotheroccasions,however,theNicaraguanstutharitieshave responded
quite quicklyto CostaRicanrequestsfor permissionto navigate,"5" Costa Rica
assertsthat therewerenoproblemsin securingauthorizationfor her social service
providers tonavigateonthe San Juan"until May 2006,"whichwas eight months
54Affidavitof KattPatriciaCorralBarboza,16 Februar2006. CRM, Annexes, Vol,IV,
Annex99.
54Affidaviof SandrDiazAlvarado16February2006. CRM,Annexes,Voi.TV,Annex100.
548~ee CM, paras.6.2.14-6.2.15.
54CRR,para.4.36.after this caswas fileds5'Dr.Ching'srequest for a visawas made in June and
granted in July of2006. By May 2007, Costa Rica admits, her government
workers were securing Nicaraguan visasmore expeditiously.Fox example" says
the Reply"on 22 May 2007 the Coordinatorof the NorthernRegional Office of
the Costa Rican Ombudsman's Ofice, Ms. Laura Navarro. ..request[edj
'authorization7 forIMAS [Costa Rica's Joint Institute for Social Assistance]
officials who wouldbe participatingin a regional Environmentand Health Fair
that wasto be held by the high school oBoca San Carlos, and who intendedto
talcethe opportunityto visit poor families in thecommunitiesof BoSan Carlos
and La ~urefia."~~'Nicaragua provided therequested visas on 25 May, that is,
within three days552. Oproblems inobtainingNicaraguan visas to travelon the
Sm Juan at any time thereafterare identifiedin the Reply,whwas filed on 15
January2008.
Conclusion
5.113. The conclusion is inescapable that Nicaragua has not violated Costa
Rica'srights respectinuseof the SanJuan Riverby CostaRican public vessels.
Neither the 1858Treatyof Limits nor the ClevelandAwardprovides Costa Rica
with a right to navigaon the SanJuanwithher public vessels. AccozdingZys,he
has no such right, since the parties are agreedthat:Costa Rica enjoys only such
rights of navigation as are provideinthe Treaty of Limits and the Cleveland
Award. Whilethose insfmmentsestablish that Costa Rica may have a duty to
sendher public vesselstothe defenceofthe river in case of externalattack, when
requested by Nicaragua, she has not the right to place vessels oher security
CRR,para.4.30.
551CRR,para4.36.
552CRR,para,4.37.forces on the river absent such circumstances, and it is undisputedthat these
circumstanceshavenever presented themselves; in these proceeding CsostaRica
does not allege that the river has ever been attacked, or that Nicaragua has
preventedhexvesseIsfi-omcorning to its defence.
5.114. The onlynavigation rightthatthe controlling legalins~~ents provideto
I
Costa Rican public vessels is the right accorded by Article Second of the
ClevelandAward to vesselsof CostaRica'srevenueservice to navigateon the
river when such navigation is related to or necessaryto protect her right to
navigate'kconobjetos decornercio." Even vesselsoftherevenue servicehave no
general right of navigation onthe river. Their rightto navigate is expressly
limitedto circumstances in which their navigation is necessarto the protection
of the right underArticleVI of theTreatyof Limitsto navigate "con objetosde
comevcio," Nonavigationrightsare providedto vesselsofthe revenueservicein
any other circumstances,and no navigation rightsare provided to other public
vessels inanycircumstances,
5.115, The evidence shows that Nicaragua has neverviolated, abridged or
interferedwith CostaRica'sright to have vesselsof her revenue service use the
SanJuan Riverta protecthex righttonavigate "con objetosde comercio." Inthe
firstplace, Costa Ricahas producedno evidenceto show that she everexercised
this right, or attemptedto exercise it. To the contrary, the evidenceshowsthat
CostaRicahas had noneedto send her revenueservicevessels onto the SanJuan,
and hasnot done so,becausethe kind of commerce that has been carriedout on
theSanJuanafter 1858is merelya localtrade ingoods,ofsmallvolume,andnot
the kind of international trade that was anticipated when the Treaty was
negotiatedand executed, whichmight haverequired theuse of revenueservice
vesselsfor its protection. More directlto thepoint,Costa Rica has introducedno evidencewhatsoeverto show that Nicaraguapreventedher from exercising
herrightto navigatewith vessels ofherrevenueservice atanytime, let alonefor
thepurposeofprotectingherright tonavigate "con objetosde comercio." In fact,
thereis no suchevidencebecause Nicaragua never interfered witth he exerciseof
thisright.
5.116. Theevidenceshows that, in theI50 yearssincethe Treaty ofLimitswas
executed, CostaRicanpublicvessels have navigatedon the San JuanRiver for
onlythreepurposes --and never toprotectthe right to navigate"conobjetos de
comercio," These three purposes are: (1)to resupply and bring replacement
personnelto Costa Rican borderpostsaccessible by the river (aswellasby land);
(2) to engage in joint Iaw enforcementoperations with Nicaraguan security
personnel;and (3)to deliver social servicesto ripariancommunitieson the right
bank of the river.None of these uses of the river has involvedvessels of the
revenue service,andnone has been for thepurposeofprotectingnavigation "con
rsbjetosde comerciu." This isundisputed, The upshotis, none is sanctionedby
the Treatyof LimitsortheClevelandAward,and%herefore ,oneoftheseuses of
the riverby Costa Rican public vessels is the subject ofany navigation right
provided by the either of the twolegalinstruments thatboth parties regard as
controllinginthese proceedings.
5.117. The evidenceshowsthat, on each and every occasionwhenCostaRican
public vessels navigated onthe San Juan forone of these three purposes, the
navigatian was not in the exercise of a right claimed by Costa Rica, but a
consequence ofthe express priorauthorizationgivenbyNicaragua in response to
Costa Rica's request for Nicaragua's permission to navigate on the river.
Nicaragua's granting of thispermissionin the exerciseof her discretionand the
conditions thatNicaragua placed on the permitted navigation,as well asCostaRica'sacceptanceof and compliancewith these conditionsp, rovide furtherproof
that, apartfromvesselsof CostaRica9srevenue serviceengaged intheprotection
of navigation "con objetos de comevcio,"no other Costa Rican public vessels
enjoya right to navigateon theriver. Accordinglythe conditions that Nicaragua
has placed on Costa Rica'suse of the riverwith her publicvessels to resupply
border posts, or to deliver social services to riparian communities,cannot
constitute violationsof Costa Rica's"righto engageintheseactivitieswithher
publicvesselsbecause she has none.
5.118. The evidence shows that there was only one, very brief series of
embarkationsby Costa Rican public vessels undertaken without express prior
authorizationby Nicaragua.These occurred in June and July 1998when Costa
Rica abruptlychangedher longstandingpolicy andpractice,and senttheGuardia
Civil and its vesselsonto the San Juan to engage in amed interdiction and
detentionofNicaraguanboats andpassengers thoughttobe immigratingillegally
into Costa Rica. Nicaragua's response was immediate and firm. She instructed
the GuardiaCivil to stop conducting law enforcementactivitiesunilaterally in
Nicaragua's sovereignterritory, and especially to stop detaining Nicaraguan
nationalsand their vessels inNicaraguan waters.Whenthe Guardia Civilrehsed
to do so, under instructionfrom the new governmentin San Josd, Nicaragua
prohibited all hrther navigation on the riverby Guavdia Civil vessels, The
Guardia Civilhas not navigatedon the river since then. Thesefacts,which are
undisputed,further support Nicaragua'sconclusionthat CostaRica has no right
under theTreatyof Limitsor the ClevelandAwardto navigateon the San Juan
Riverwith herpubIicvesselsfor lawenforcement purposes,absentexpressprior
authorizationfromNicaragua.5.119. FinaIZy,even if, hypothetically speaking,Costa Rican public vessels
(otherthanvessels of her revenue service engaged in protectingavigation"con
objetos de camercio")were to enjoy a right under the two controlling legal
instrumentsto navigateon the river, theconditionsimposedbyNicaraguawould
not violate Costa Rica's"right" becausethey canstikte reasonable exercisesof
Nicaragua'ssovereign authoritytoregulatenavigation inherwatersindefenceof
her legitimatenational interests. Indeefor more thanfiveyem, followingthe
conflictinNicaraguaand afiernormal navigationin the riverwas reestablished,
andunder thegovernmentsof twosuccessiveCosta Rican Presidents, CostR aica
accepted without objection and fully complied with Nicaragua's requirements
that she: requestprior authorizationfiornNicaragua beforeusing the riverwith
vesselsof her GuardiaCivil; stop for registrationand inspectionat Nicaraguan
army postsalongtheroute;deposit the weaponscarried by her securitypersonnet
on the floorof the vessel while transitithe SanJuan;and allow a Nicaraguafi
soidierto accompanythe vesselwhilein Nicaraguanwaters.Thereasonableness
of these conditions isself-evident,givenNicaragua'sinterestsin protecting her
sovereignty against thearmed presence in her territory of foreigmilitary or
security forces, aswell as her interests in environmental protection, law
enforcement,navigationals.afetyandborder security(describedin ChapterIV).
5.120. The reasonablenessof Nicaragua'sconditionsonnavigation by Euardia
Civil vessels was certainly evidentto the Guardin Civil,which accepted and
compliedwiththem untilthemiddle of 1998,when a newly-elected Costa Rican
President completelyreversedprior policy. And their reasonablenesswas again
apparentto CostaRica inJuly 2000, when she expressedto Nicaragua'sArmy
Commanderawillingnesstoreturnto the pre-1998conditions.5.121, For all of these reasons, Costa Rica has failed to demonstrate that
Nicaragua has violatedher allegedrightsof protection,custody and defence of
the San Juan River.6.1. In ChapterV of her Reply, CostaRica discussesher claimedremedies in
the present case, as well,as Nicaragua's requestfor a Declarationon her rights
fromthe Court.The present chapter answers thispart of Costa Rica'sargument.
However,since the Declardian requestedby Nicaraguacannot be separatedfiorn
Costa Rica7s own request for a "[d]eclaration of violations of Nicaragua's
obligations"S53 , ey willbe dealt with together in SectioI of the chapter,before
turningto otherCostaRica'salleged""entitlementsi "n SectionTI.
SectionI. The declaration^^^Requested by the Parties
6.2. In thelistof remediessoughtinher Memorial, CostaRicamentionsfirst a
"Declaration of violationsofNicaragua'sobligations"554 .his requestis formally
made and detailed atlengthin paragraph 2 ofCostaRica'sSubmissions inboth
her ~emoriaP'' and her R~JJ~'~e ,venthoughshe does not discussin the latter
Nicaragua's denialof violations557T .here isno need forNicaraguato say more
about this matter;sufficeit to recallthat,absentmy breachof her obligationsby
Nicaragua, therecan be no questianofreparation ingeneral.or of adeclarationby
the Courton these alleged violationsinparticular558.
55CRM, para. 6.02-6.03.
55]bid
SSCRM, p.147
55CRR,p. 211.
55SeeNCM, pp.239-241,paras. 7.1.2-7.1.4,4.1.18-4.1.36,4.1.46, 4.2.36, 6.5,.1.1-.16
5.1.20,md5.2.2-5.2.11.
55Nor,of course,of 'kcessation"ofthoscallegedbreaches.6.3. Forherpart, in her Counter-Memorial,Nicaraguahas requestedthe Court
$0 make a formal Declaration in its Judgment on the extent and limits of Costa
Rica's right ofnavigationon the San Juan ~iver"' in order to put an end to the
Applicant's global strategy of expanding her rights under the 1858 Treaty of
Limits at Nicaragua's expense.As couldbe expected, Costa Ricaasks the Court
to reject thatrequest, in line withher claimfor anunlimitedright of navigatioon
the river. However, bothrequests show that theparties agreeat least that such a
Declarationwouldbe in accordance withthe Court'sStatuteandfunction560.
6.4. Costa Rica describes Nicaragua's request for a Declarationas a'"counter-
claim" and tries to cast doubt on its admissibility, although without openly
challenging itS6'.In fact, Nicaragua has avoided formally advancingher request
as a "counter-claim"for twomain reasons:
- First, she envisages her request not as an autonomous claim but as a
pure alternativeto the contentof the declaration requestedby CostaRica herself7
i.e.as the consequenceof the necessaryrejection of the Applicant's submission;
- Second, Nicaragua wouldbe satisfied with such a Declaration being
made anywherein the Judgment,whether in the dispositgitself, or the motives
(reasoning), The importantissue is that the Cow make clear theextent and the
Iimitsof Costa Rica's rightof navigation"with afiicles oftrade" (can ubjetos de
55NCM,para. 7.2.1-7.2.6.
Forformalrecognitionsothipossibilitsee CTCMp,ara.6.02NCM,para. 7.2.3and CRR,
para.5.02.comevcio) on the San Juan River withthe hopeto avoidmisunderstandingsand
new crises inthefuture.
6.5. This being said, even werethe Court to considerthat this request amounts
to a counter-claim, itwould be admissible under Article 80 of the Rules (as
amended on I February 2001). It has been made inthe Counter-Memorial in
paragraph 7.2.6, in which Nicaragua formallyrequested"the Court to declare
that:
i.Costa Rica is obligedto comply with the regulations for
navigation (and landing) in the San Juan imposed by
Nicaraguan authoritiesin particular related to matters of
healthandsecurity.
ii.ostaRica has to pay for any special services provided
by Nicaragua in the use of the San Juan either for
navigationorlandingon theNicaraguan banks.
iii.osta Rica hasto complywith all reasonable charges
for modern improvements in the navigationof the river
withrespectto its situationin1858,
iv. Revenue service boatsmay only be used during and
with specialreference to actual transitofthe merchandise
authorizedby Treaty,
v. Nicaragua has the rightto dredgethe San Juan in order
toreturnthe flow of water tothat obtainingin 1858 evenif
this affectsthe flowof watertoother presentday recipients
ofthisflow such as theColoradoRiver."6.6. In her Submissions, Nicaragua also requestedthe Court, "to make a
formaldeclaration on the issues raiseby Nicaragua in Section2 of Chapter 7,"
and this request "comes within thejurisdictionof the Court and is directly
connectedwiththe subject-rnatterofthe claim"of Costa Rica.
6,7. Costa Rica does not challengethis connection,except inregard to point
(v), which, she alleges, "is without merit and without incidencefothe present
case"562.This isnot so. First, asdescribedin the Application and confirmed in
Costa Rica's MemoP.ial: "The present proceedings (...) concern breaches by
Nicaragua af CostaRica'srights ofnavigation and relatedrights in respect of the
§an Juan ~iver"'~~.Second,the dredgingof the San Juanis in direct connection
to navigation on theriver,because itis a measure that is required to restothe
lowerreaches of theriverto navigability. Third,theensuing discussionby Costa
Rica herself, confms that this request bas a direct bearing on the rightsshe
claims, Shecitesan extract ofthe Cleveland Award according towhich works of
improvement may be executed by Nicaragua "provided such works of
improvementdo not result (. ..) in the destmction or serious impairment ofthe
navigationof thesaidriver oranyof itsbranchesat any point whereCosta Rica is
entitledto navigatethe In fact,ratherthan destroyorimpairnavigation
on the Iower San Juan (where Costa Rita enjoys a right of navigation) the
dredgingof the riverwouldonlyimproveand enhanceit.
6.8. The problemsposed by the deviationof thewaters of the SanJuan to the
Coloradoare long-standing.This variation or change in the water flow occurred
562CRR,para. 5.31.
563CRM, para,1.02.
564CRR,para.5.3, quotingtheClevelandAward.CRM,Val.11,Anne16.very soon afterthe Treatyof Limits cameintoforceon 25 April 1858. In certain
Nicaraguan circles, it has always seemed remarkablethat shortly after the
Colorado River(a branch of the San Juan) was cededto Costa Rica in 1858 it
startedto carrythe waters thatbeforeflowedout to sea throughthe Nicaraguan
branchthatwas supposedto bethemain branchofthe river.
6.9. In a note from the NicaraguanMinistry of Foreign Relations to the
Minister of Foreign Relations of Costa Rica dated 13 December 1859,that is,
barelyayear andahalfafterthe 15April 1858 Treaty,Niczraguastatesthat:
"The attention of the governmentof Nicaragua has been
forciblycalledto the conditionof the portaf SanJuan del
Norte,whichhasbeenfilled up andalmostrendereduseless
on account of the sand whichhas accumulated init ever
sinceits watershaveabundant1yflowedintothe channel of
the Coloradoriver; and such a state of things must also
demand theattention of CostaRica, becausethe interest of
the latter in this subject is not less felt, sinceby existing
treatiesshehasthe rightofnavigationandfiee importearn
there."565
6.10. Costa Rica herselfacknowledgedin her Argument toPresident Cleveland
that the Nicaraguan branchof the San Juan suffereda loss of water flow to the
CostaRicanbranch (the Colorado):
""Thegeographicalpointnamed in 1858, the mouth of the
San Juan river, has not changedits position, although it
may be thatthe volumeof waters emptied throughit into
the oceanis now lessthan in 1858, and although itmaybe
also thatthe watersof theColoradoriverhaveincreased or
foundnewoutletsthroughtheCafiodehimas oranyother
'",ArgumentofCostaRicaop.cit.p,233.NR, Vol.11,Annex6.
56Ibid.6.11. General Alexanderinhis firstAwardof 30 September1897,in describing
the Bay of SanJuan pointedout,"Thepeculiaritiesofthisbay,to be noted,isthat
the river bringsdownvery littlewater dwing the annuaI dry season. When that
happens, pavticularlyoflateyears...amanmight cross dry-shod.3567
6.12. This factis mademoreexplicitby the Report to the Inspector Generalof
the Costa Rican Treasury of 16 March 1906:"'Duringthe summer, allthe water
fiom the San Juan River follows the cowse of the Colorado, left almost
,9568
completely dry the first..
6.13. As indicated above, this question is squarely beforethe Court: it is a
matter of greaterimport to navigationon the river than the simplequestion of
regulation of that navigationthat appears to concern CostaRica; put simply,
withoutsufficientwatertonavigate, any discussionofnavigation rightsis entirely
academic, Furthemore, Nicaragua'srighttomake improvementsto theriveris a
matter thatwas addressedin the Cleveland Award: CostaRica "can not prevent
theRepublicofNicaragua from executingather own expense and withinher own
territory such works of improvement, providedsuch works of improvement do
not result..i~thedestructim orserious impairmentofthe navigation of the said
riveror any of itsbranchesat anypointwere CostaRica isentitledtonavigatethe
same."569Theseimprovementsrefer toany actionstakenby Nicaragua'Yokeep
55CRM, Vol.11,Annex18atp. 531(emphasisadded).
CRM, V01.VIAnnex214 atp. 878.
56Ibid para.7(emphasisadded).thenavigation of theriver orportfiee andunembarrassed,orto improve itfor the
commonbenefit."570
6.14. And, "The boundary line betweenthe Republics of Costa Rica and
Nicaragua,on theAtlantic side, beginsattheextremityofPmta de Castillaat the
mouthofthe SanJuandeNicaragua River,asthey bothexirfed on the15" day of
April,1858."~~'
6.15. Based on the ClevelandAwardthere isno question thatNicaragua has the
right tobring the riverand its mouth to the statethey were in on the date of the
1858 Treaty.Far fromdestroying or seriouslyimpairingnavigationonthe river,
Nicaragua's restorationofthe water flowthatexisted in 1858 wouldonly --to use
President ~levdand's words -- "improve it for the common benefitvg2.
Furthermore,Nicaragua doesnot need CostaRica'spermissionto proceed with
these works, As President Cleveland decided, Costa Rica "can not prevent the
Republicof Nicaraguafiom executingat her own expenseand within her own
territory anyworks of improvement.. ."573Costa Rica has only a right to an
indemnificationifthe damagesorimpairmentsmentioned byPresident Cleveland
0ccw.r.
6.16. Nicaragua is not askingthe Cow forany indicationas to the amountof
water that Nicaragua has the right to recover. The request is simply for a
Declarationthat Nicaragua hasthisrightin general. If dredging works are begun
57Ibid.,par4.
57Cleveland Award,op.cit.,paraCRM, Vol.11,Annex16(emphasisadded).
57Ibid.
'7Ibid.itwill be CostaRica7stask ofproving theoccurrence of any damagesthat -- it
might be added --arenot offsetby thebenefitsobtained.
6.17. In respectto thefourother items includedin theDeclarationrequestedby
Nicaragua,some remarksmustbe brieflymade:
* Concerningtheright of Nicaraguanauthoritiesto issueregulatians
for navigation (and landing)in the SanJuan, in particularrelated
to mattersof environmental protectionc ,ontroland preventionof
crime, navigationalsafety and border protectionand security,and
the correlativdutyof Costa Ricato complywith them, Nicaragua
has shown in Chapter IV that her regulations are a necessary
consequence anda reasonableexercise ofher sovereigntyover the
bed andthe watersof the river574t,he environment and safetyof
whichshehas both arightanda duty toprotect575;
The obligationfor Costa Rica to pay "for any special services
provided by Nicaragua in the use of the San Juan" by no means
"contradict[s]the perpetualright of free navigation"576t;hese are
twoseparate matters: thenavigationon theriveris freeprovided it
is "with articles of trade" (con objetos de comercio)but by no
means does it implythat Nicaragua isrestrainedfrom charging
fees for such services as safety inspections(departureclewance
certificates)orimmigrationprocessing(touristcardslsn;
57See NR,Chap.II,Sec.Iparas.2.66-2.81andespecially2.74.
57See NR,paras.4.35-4.68.
576CRR,para.5.28.
57See above,paras.4.86-4.91. e The same reasoning appliesto point (iii) - regarding reasonable
charges for modem improvements to navigation of the river.
Nicaraguadoesnot put into questionthe ClevelandAward which
decided that "[tjhe Republicof Costa Ricais not bound to concus
with the RepublicofNicaraguain the expensesnecessary".forthe
improvementof the river578; butthis is a different issue. If, for
example, Nicaragua,withoutinfringing therights ofCostaRicato
free navigationwith articlesof trade, would decideto build on her
om territory acanalparallel to the river,it isquite clear thatthe
Treatydoesnot conferon CostaRica a right offree useof sucha
canal - evenifhernavigationwerewitharticlesoftrade;
* Lastly, CostaRica asserts that by requesting a Declarationby the
Court:that "revenue sewice boats may only be used during and
with special reference to actual transit of the merchandise
authorized by ~reaty"*~~N , icaragua attempts '30 limit Costa
Rica's freeright of navigation, and its right of navigation with
revenue service vessels expressly recognisedin the Cleveland
ward."^^' As shown &oves8', this is not an attempt by
Nicaragua to limit a right belongingto Costa Rica; it simply
reflectsthe expresswordsof theClevelandAwarditself
57ClevelandAward, op,citpara4.CRM, Vol.11,Annex26 (emphasisadded).
579CRR,para. 5.3(quotingNCM, para.7.2.6(footnote omitted)).
58Ibid
589ee paras.2.129-2.150. "The Republic of Costa Rica under saidtreaty and the
stipulations containedin the sixth article thereof, has not
the rightofnavigation ofthe river San Juanwith vesselsof
war; but she may navigate said river with such vesselof
the revenue serviceasmaybe related to and connectedwith
her enjoymentof the 'purposes of commerce' accorded to
her in said article,or as maybe necessaryto the protection
of said
6.18. Furtkemore, as indicated above in Chapter V, there isno evidence that
Costa Rica has ever navigatedthe San JuanRiverwith revenuesewice vessels or
that she has ever requested permissionto do so and been denied or hindered in
her exercisebyNicaragua.
6.19. As a consequence, NicaraguaClly persists in her request and formally
requests the Court to make the Declaration the text of which is reproduced in
paragraph6.5above.
Section11. Costa Rica'sFurther ContentionsRegarding Remedies
6.20. As for the rest, CostaRica'sReplyfocuses on threepoints:
""Nicaragua'sclaim that Costa Rica seeks to exercise dipiomatic
protection";
"Assurances and guarantees ofnon-repetition";and
"Compensation".
Nicaragua will briefly answereachof thesepointsin turn.
582ClevelanAward,op. cit., para.Second. CRM,11Annex 16(emphasisadded).
3086.21. Inher Counter-Memarid, Nicaragua notedthatthe claims made by Costa
Rica'"concerningthe 'obligation'which would be incumbentuponNicaragua'to
permit riparians of the Costa Ricarm bank to fish in the River for subsistence
pwposes' and, moregenerally,her claims for compensationfor the losses and
expensesincurredby Costa Rican citizens, ,,,could onlybe madeas a matterof
diplomatic protection, the conditionsfor which are not hlfilled inthe present
casem5". This defect ismoreparticularly apparentin relationto the Costa Rican
claimsrebutted in ChapterIV of the presentRejoinder.
6.22. First and foremost,it must be noted in respect of these claims that the
alleged "rights" thus "protected" are not mentionedin the Application and are
anly artificially "related" to the navigationrights which arethe only subject-
matter of said Application.Consequently, the claimsare inadmissibleand the
Court:should dismissthem on this ground. Only in the alternative would the
questionof whetherthe conditions forthe exercise of diplomatic protection are
met evenarise.
1. AbsenceofRelationwith the Application
6.23. A firstremark is inorder:in spiteof the impressionthe Applicanttries to
giveby callingthem "Relatedsights",the claims are not admissible;they strnot
parotf theApplication which doesnotmention anyof themandclearly limitsthe
casetorightsrelatedtonavigation(under the 1858 Treaty ofLimits).
5gNCM,para.7.1.10.6.24. Indeed, inthe 2005 Application, a list of the "rights of Costa Rica on the
SanJuanRiver" hasbeenput forwardincluding:
"(a) the perpetual rightof free navigation for commezcial
ptuposes of CostaRicanboatsand theirpassengers;
(b) the right for boats of Costa Ricato touch at part o:
the banks of the river where the navigation is common,
withoutpaying any dues except suchas maybe established
by agreement betweenthe two Governments;
(c)the rightto navigatethe river in accordanwith Article
Secondof the Cleveland Award;
(d) the right to navigatetSm Juan River inofficialboats
for supply purposes, exchangeof personnel of the border
posts along the right bank of the river with their official
equipment,includingthe necessary arms and ammunitions,
and for the purposes of protection, as establishein the
pertinentinstruments;
(e) the rightnot to have navigatioon the river obstructed
or impaired at any point where Costa Rica is entitled to
navigate."
All said "rights" are clearly rights which, in one way or another, have prima
faciea directconnectionwith navigation,as such.
6.25, New %her relatedrights", which allegedly "ariseffomthe sametreaty or
from other international binding instrumentsand whichalso have consequences
relativeto the navigationof the San 3uan7""appeared in the Memorial. Costa
Rica includes inthese new "otherrelatedrights" "a customaryright to fish on its
waters for subsistencepurposes for residents livingon the CostaRican bank of
tlle San ~uan.'"~~Such a formulation clearly shows that thereis no connection
whatsoever between the allegedly breached obligation and the "'freedomof
584CRM, para.4.118.
585CRM, para.4.118(3).navigation with articles of trade" stemmingfrom 1858Treaty of Limits. In the
Reply, there is not even an attempt to relate this "customary right to fish''to
navigation.
6.26. In the same way, CostaRica tries to broaden the scope of the disputeby
adding"the right of CostaRicanvesselsto cany their own flag"586 and the "right
...of not having to fly the Nicaraguan flag"587 with the understandingthat they
constituterights "'related'to the rightof freenavigation."588
6.27, It might be true, as Costa Rica submits, that"it isup to Costa Rica,and
not to Nicaragua, to formulate its However,this is to be done in the
Application,an essentialpoint that hasbeenignoredby the Applicantin this case.
Asthe PermanentCourtput it as earlyas 1933:
"it isthe Application which sets oat the subject of the
dispute,and theCase, though it may elucidatethe terms of
the Application, mustnot go beyond theZimitsof the claim
as set outtherein."'90
6.28, This is nevertheless, without any doubt,what Costa Rica does in her
overall strategy to widen the object of the dispute far beyond the scope of her
Application,which was only related to the 1858 Treaty and the rights therein
contained. Thereisno logicalor legalconnectionbetweenthe "customary rightto
fish" andthe 1858Treaty - sinceit is, asallegedby CostaRica,a customaryright
58CW, para.4.10.
58CRR, para.3.98.
58CRR, para.3.97.
'"CCR,para. 3.11.
PCTJ,1933, SeriesA/f3, Case concerningtheAdministration ofthe Prince vonPless
(PreliminaryObjectio,.14.and not a treatyright stemmingfiom this instrument- or to he navigation.And
in the same vein, the alleged rightto fly the Costa Rican flag has nothing do
with the 1858 Treaty - which does not mention this issue at all - or tofree
navigation.
6.29. Nicaragua does not dispute the right of Costa Rica to amend and to
supplement her submissions in the proceedings, even if Costa Rica did not
expressly reserve her rights on this possibiliin itsApplication,This right is
nevertheless not unlimited. As the Court stated recentlyin the Territoriala~d
Maritim D ispute betweenNi'carapfuaandHondurascase:
"[Tlhe mere fact thataclaim isnew is not in itself decisive
foxthe issueof admissibilityIn order to determinewhether
a new claim introduced dwing the course of the
proceedings is admissible theCourt: will need to consider
whether, 'although formally a new claim, the claim in
question canbe considered as included in the original claim
in substance'(CertainPhosphate LandsinNauru (1Vauru v.
Australia), Preliminu y Objections, Judgment, I,C.J.
Reports 1992, pp, 265-266, para. 65).For this puxpose,to
find that the new claim,astsmatter of substance,has been
included inthe original claim,it:is not sufficientthat there
shouId be links between them of a general nature.
Moreover,
'[a)n additional claim must have been implicit in the
application (Temple of Preah Vihear, Merits, Judgment,
I.C.J.Reports 1962,p. 36)or must arise 'directlyout othe
question which is the subject-matter of that Application'
(Fisheries Jurisdiction (Federal Republic ofGemany v,
Iceland), Merits, T.C.J.Reports 1974,p. 203, para. 72)'
(Certain Phosphate Lands in Nauru (Nauru v. Australia),
Preliminary Objections,Judgment, LC.J. Reports 1992, p.
266,para. 67)."59"
59'Te~.riforInd MaritimeDispute between Nicaragua and HondurastheCaribbeanSea
(NicaragtdvHonduras),JudgmentICJReports2008,para.110.6,JO. The "customaryfishing rights" and the"right tofly the Costa Rican flag"
in paticular have neither been included in the 2005 Application, nor are they
implicitin theApplicationwhich clearly focused onlyan navigational and (truly)
related rights, i.e., rights related to navigatiIn.addition, they clearly do not
arise "directly out of the question which is the subjject-matter of that
~pplication"~~ ie., the allegedbreachof CostaRica's right to free navigation.It
is indeed not necessary to ruleon the alleged existence,or the alleged violation,
of any customary right to fish or on any right to fly one flag or another,in order
to determine ifthe right of ""feenavigation" hasbeenviolated,
6.31. Under these circumstances, the issues concerningthe "related" rights of
fishing and of flying the CostaE;tcanflag are inadmissibleunderArticle40 of the
Statute and Article 38,paragraph 2, ofthe Rules of COW.
2. Non-Exhaustion ofDomesticRemedies
6.32. Inher Reply,Costa Rica embarkson a lengthy discussion of the relations
between treaty claims and diplomatic protection claims, in respect to these so-
called "related rights"593. Her main argument is that "Costa Rica's rights of
navigation arenot claimedas a matterof diplomaticprotectionbut as treaty rights
belonging to Costa ~ica*'~'a~nd that "[iln anyevent, even if Costa Rica's claim
for compensationfor losses causedto Costa Rica for charges, visas and permits
requiredby Nicaragua for CostaRican vesselsand Costa Rican citizens couldbe
592FisheriesJurisdiction (Fedral Republic ofGermanyv.Iceland), Merits, JudgmeICJ
Reports1974,p.203,para72.
59CRR,paras. 5.04-5.09.
59Ibid.para.5.05.charstcterisedas a diplomatic protectionclaim, that claim is incidental to Costa
Rica's claim for heown treaty rightsThe dominant claim isCostaRica's claim
forherom navigationrightspursuant tothe Treatyof ~imits.'"~~
6.33. Thisprecisely isa Eundamentald.ifference withthe case concerningAvena
and other MexicanNationals, which is the exclusivebasis for the reasoning of
CostaRica. As made crystal clearby the Court in the passageofitsJudgment of
31 March 2004 quotedby Costa ~ic$~~, the basis of the Court's decision inthat
case isto be found inthe very "special circumstancesof interdependenceof the
rights of the Stateandofindividualrights", since Article 36, paragraph 1,of the
1963 Vienna Convention on Consular Relationscreates rights not only for the
Applicant State but also for the national In the presentcase,the
1858Treaty of Limits clearly creates no internationright whatsoever for any
individual,
6.34. The solutionof the Judgmenl inAvena cannot,therefore, be transposedin
the present case where the alleged rightsof the Applicant State and of the
individualsconcernedare differentinnature: they stemfrom the Treatyfor Costa
Rica;for the individuals,theycan onlyrise to the surfaceat the internationallevel
afler the allegedly injuredparties have exhaustednationalremedies. Far ffom
being inter-connectedand interdependent,the respectivesightsof CostaNca and
her nationals are clearly distinct. One can easily imagine a violof the 1858
Treaty having no bearing on Costa Rican nationals, whereas this cannotbe the
case concerning the right of consular notification. A claim for monetary
'"lbid .ara. 5.07.
'"See CRR,para.5.08.
59ICJ Report2004,p.36,para.40; seealso Judgmentof 2001, LaGrand,ICJ Reports2001,p.
494,para77.compensationfor the injuries suffered by the individualscan consequently not
arise until legal remediesare exhausted.As the Court:stated in theInterhandel
case, "the State where the violation occurred should have an opporhmity to
redressitby itsownmeans,within theframeworkof its own domesticsystem77598.
The InternationalLaw Commissionhas stated that"it is only if these [locall
remediesfail that the result soughtby the international obligation will become
definitivelyunattainableby reason oftheactofthe
6-35. It should also be noted that in the present case, ifbreaches of her
obligationscouldbe attributedto Nicaragua (quod non),the harm caused would,
apparently,have'been caused mainlyto non-Costa RRm nationals through the
charges for "touristcards" and "immigration fee$"'" or by the requirementof
visasG0'.In her Rep&, Costa Rica goes as far as to allegethat "Nicarstgua's
unlawfblrestrictions and hindrances to CostaRica's use of the San Juan River
have causedconsiderable harm ...to the inhabitants themselves,many of them
Nicaraguan national^. ''sta Rica certainly can not act on behalf of
Nicaraguan or obes non-Costa Ziican nationals supposedly prejudiced by
Nicaragua's allegedlywrongfulacts.
59Interhandel(Switzerlandv.UnitStateofAmerica),JudgmentPreliminaryobjections,ICJ
Reports1959p. 27.
59ILC Yearbook1977,Vol. 1Yd Part,p30,para.2)oftheCommentaryofDraftArticle22 on
Stateesponsibility.
'0CRR, para4.09.
'0CRR, paras.4.03seealso4.26and4.33.6,36. In her Reply, Costa Rica insists on her request for assurances and
guarantees of non-repetition603A . ccordingto the Applicant such a request would
be justified by "Nicaragua's continuingdenial of the very existence of Costa
Rica's Mghts.This is precisely", she adds, "the situationin which assurancesand
guarantees of non-repetition are required...'"04 With all due respect, this is
absurd. Following this line of reasoning would mean that assurances and
guarantees of non-repetition are due in all cases brought before the Cowt. By
deiinition,every case impliesthat there exists a dispute between the parties, that
is, according to the well-knowndefjnitionby the Permanent Court, consistently
appliedby the Court,"adisagreement on apoint of law orfact,a conflictof legal
views or of interests between two persons"60i; and, a dispute exists when "the
claim of one party is positively opposed by the other'"06. As a matter of
definitionany dispute beforethis Court necessarily impliesthat one of the parties
denies, or interprets differentlythe rights invoked by the other, Consequently,
this wouldmeanthat eachand everycaserequires thatthe Courtorderassurances
and guarantees of non-repetition.
CRR,para.5.10-5.15.
'04CRR, para. 5.12.
PCIJ,Judgment of30 August t924, Mavromrnatis alestineConcessions,SerA,sNo. 2, p.
11; see alsoe.g.8 October 2007, Territorialand MaritimeDispute between Nicaragand
HondurasintheCaribbean Sea,par.130.
ICJ, Judgment2 1December 1962,SouthWest AJiicaPreliminaryObjecbions,CJ Reports
1962,p. 328;see alsoe.g.:3December 2006,Amed Activitieon theTerrifoyof the Congo
(newApplication :2002) (DemocraticRepubliof the Congov.Rwanda), p.40, par. 90or13
December 2007, Territorial and Maritime Dispute (?Vicaragv.aColombia), Preliminav
Objectionspara.41.6.37. ftis the view of Nicaragua that this isnot, and must not be, so. The
Court's Judgmentsare compulsory,and when States consent to the Court's
jurisdiction, they acceptthat the Judgmentwill be "final and without appeal"in
the words of Article 60 of the Statute, Ifand when, as in the present case,the
requested assurancesand guarantees would add nothingto the compulsorynature
of the Judgment,it is not tenable that"the circumstances (...)requiref160that
such a request be satisfied. It can add nothingto the obligationsof the States
appearing in Court and accepting itsjurisdiction, as in the present case. As
Nicaragua has recalled in her Counter-Memorial,the Court has frequently
declared that "it 'neither can nor should contemplate' the possibility that its
Judgments would not be implemented by the ~arties"~'~.Costa Rica's request
mns againstthis presumption.
6.38. Thejurisprudenceinvoked by the Applicantmustbe checkedagainst this
fundamentalconsideration.Inlightof it,itwill be apparentthat:
* In LaGr~ndandAvena,theJudgments limited themseIvesto take
note of the assurancesgiven by the RespondentstateM9,which, in
fact, added something to the usual consequences of the
responsibility oftheStateas decidedinaJudgment;
607See Article30(b) of theILC Articleon the Responsibilityof Statesfor Internationally
WrongfulActs.
"ONCM,para. 7.1.13See e.g,PCIJ,Judgment,17August1923, S.S.Wimbledon,SeriesA,No.
1,p. 32; 18September 1928, SerieA, No, 17, Facbny at Chorzdw (Claimsfor Indemnity)
{Merits),SeriA, No. 17,pp.62-63;ICJ,20 December 1974,NuclearTests,ICJReports1974,
p.272,para.60,andp. 477,para63,or26 November 2984,MilitaryandPararnilitayActivities
in and against Nicaragua(Jurisdiczionof the Courtand Admissibilityof theApplication),ICJ
Reports1984,p.437,para.101.
"' SeeJudgmentsof 27 June2001,LaGrand,ICJ Reports2001, para124 andpar.128(6); and
31 March 2004,Avena andOtherMaican Nationals,ICJ Repor'ts2004,para.15andpara.153
(10). In the Genocidecase,the Coud did not "direct thatthe Respondent
provide guaranteesand assurances of non-repetitionin relation to
the established breaches ofthe obIigationsto prevent andpunish
genocide'7610 w;hile the Court recognized that ''the Respondent
failed to comply both with its obIigation to prevent and its
obligation topunish genocide deriving from the Convention, and
that its international responsibilitis thereby engaged,'76"and
while the breach was continuing at the time of the Judgment,the
Court considered "that the declaration [by which it gave an
appropriate satisfactionto the Applicant]is sufficient as regards
the Respondent's continuing duty of punishment, and therefore
does not consider that this is a case in which a direction for
guarantees of non-repetitionwould be indeed, the
guarantees and assurances required could, in the circumstances,
have addednothingto the Court's decision;and
In the case concerning Armed Activities on the Tevito~ of the
Congo (Democratic Republicof the Congov. Uganda),the Court,
withoutincludinganydecision on that matterin thedispositifof its
Judperzt, considered that,
"if a State assumes an obligation in an international
agreement b respect the sovereignty and territorial
integrityof the other States parties to that agreement (an
obligation which exists also under general international
law) and a commitmentto co-operate withthem in order to
"'OJudgmentof 26 February 2007, AppEicationof the Convention on the Prevention and
Punlishmelotfthe Crimeof Genocide (BosniaHerzegoviv.Serbia andMontenegro),Merits,
para.466.
Ibidpara.450.
"'"Ibid.,para.466. fulfsiuch obligation,this expressesa clear legallybinding
undertakingthatit willnotrepeatany wrongful acts.In the
Cowt's view, the commitmentsassumedby Uganda under
the TripartiteAgreement mustbe regarded as meetingthe
DRC's request for specific guarantees and assurances of
non-repetitianThe Court expects and demands that the
Parties will respect and adhere to their obligationsunder
thatAgreement andundergeneralinternationallaw.'"13
6,39. It goes without sayingthat what holds true for commitments taken in a
treaty iafortio rrie forobligations ensuingftom a Court's Judgment.In the
present case, byno stretchoftheimagination cantheCourtdirecttheRespondent
to give anyassuranceor guaranteeofnon-repetitionwhichcouldgo beyond what
theCourt itselfcoulddecide by way of satisfactionor of a declaratoryJudgment.
The present situation isvery similarto thatprevailingin the case concerningthe
Land and MaritimeBoundary betweenCameroon and Nigeri a here the Court
statedthatit:
"cannot envisage a situation where either Party, after
withdrawing its military and police Forces and
administration from the other's territory, would failto
respecttheterritorialsovereigntofthat~arty.'"'~
6.40. This remark also applies to Costa Rica's request thattwo Nicaraguan
decrees "and all other relevant measures be abrogated""'. Not only is this
requestabusivelyvague (what are the "othermeasures" Inquestion?),but also it
goes farbeyond the"inherent limitationson the exerciseof thejudicial kction
61"~dwent of19December2005,ICJReports2005para257.
67.Judgmentof10October2002Merits,ICJReports,para.318.
61CRR, para,5.15.which the Court, as a court of justice, can never ignore."6 A1m6ong those
limitations, the most fundamental is theone which prompts the Court to refrain
fi-omissuing ordersto sovereignstates617.
6.41. In paragraph 6.15 of her Memorial,Costa Rica makes a series of entirely
unsubstantiated claims for compensation, which she simply reiterates in
paragraph 5.15 of her Reply, also without any attempt to substantiatethem. For
her part, Nicaragua noted in her Counter-Memorial that the Court could not
accede to such cavalier claims since the Applicant had only made '%cry broad
assertions as to the [injuries] allegedly endured and [given] no indication
whatsoever asto the causeof thosedamages.''618
6.42. In the Reply,Costa Rica explains that "[iJn fact CostaRica's Memorial
contains detailed specification first of Costa Rica's rights, then of Nicaragua's
violations of those rights'"". This begs the question - which is not, for the
purpose of the present chapter, related to the alleged breaches committedby
Nicaragua,but which relates to the losses allegedlysufferedby CostRica.And,
'16ICJ,Judgment,2 December1963,NorthernCameroons,Pre1imina~;vbjectionICJReports
1963,p.29.
"' See e.g.PCZJ, 1925,MavrommatixJemsalem Concessions, SerieA, No. 5, p. 50;ICJ,
Judgments,13 June1951,Haya de laTorre,ICJ Repopt1951,p. 79;27 June2001,LaGrand,
ICJ Reports 2001, para. 1(7);31 March 2004, Avenaand Other MexicanNationals, ICJ
Reports2004,para.31;14 February2002,Arrest Warvanof 13April2000,ICJReports2002,
para.76.
NCM,para, 7.1.7(footnoomitted).
6'9CW, para5.17;see alsopara.5.22(ii).in this respect, it is certainlynenough to simplyrefer, as the Applicantdoes6",
to the list given,without anyexplanation,in oneparagraph of the Reply.
6.43. Contrary to what Costa Rica seems to think for purports to understand),
Nicaragua, by no means challenges, as a matter of principle, the possibility of
requesting the Court:to determinein a later stage of the proceedings the amount
of compensation due for damages resulting fiom internationally wrongful.acts
when the responsibility of the Respondent has been duly decided in a fist
Judgment.As was made extremely clearin the Counter-Memorial: "the form and
amount of compensation can be reserved for a subsequent phase of the
proceedings'"1. But Nicaragua alsofirmly maintains that "this does not mean
that the Claimant in a case before the Court can simply contend that it has
endured an injury without establishing the precise and effective name of said
injury and that ithas been causedby the alleged internationallywrongfulact or
6.44, Curiously, Costa Ricatries to take advantageof the decision of theCourt
in the Fisheries Jurisdictioncase623A . ll artificial quibbles aside, the important
part of this Judgmentis one thatCosta Rica seems to attribute not to the Court,
but to ~icara~ua~~~T .his sleight of hand is understandable since the Court's
62Ibid:"WhereCostaRicahas requested compensati-nto be assessedina separaphaseof
these proceedingsthasspecifiedthe particucategoryofloss,whetherinthefarmofcharges,
expenses and costsdirectlresultingfiom Nicaragua's internationallyrongful acts";the
correspondinfootnote(557)simplyindicates:"CRM,para.6.15";see alsCRR, para. 5.2(ii)
andh. 577.
62NCM, para7.1.5.
62Idem.7.1.5.
62See CRR, paras.5.1and 5.21-5,22.
6MCJ:CRR,para.5.21:"But it WCARAGUA] arguesthattheCourt'ispreventedfrommaking
anall-embracingfindingof liabilitywhichwouldcovermattersasto whicithasonlylimitedposition is decisive on the question: "In these circumstances, the Court is
prevented from making an all-embracingfinding of liability whichwould cover
matters as to which it has only limitedinformationand slender evidence"625 .n
other words, when the Court, for one reason or another626,has only "limited
infomation and slender evidence" on the alleged damages, it cannot make a
general finding of liability (or responsibility) as Costa Rica is requesting.
Moreover,it must be noted that, in the FisheriesJurisdict ciaon,Germanyhad
offered much mare evidence on the damages far which compensation was
required thanthe list inparagraphs 6.15 of the Counter-Memorial and 5.16of the
Reply,which is repeatedly invokedby Costa Rica as specifyingthe lossesit has
allegedIy suffered and their relation to Nicaragua's alleged internationally
wronghl
informationand slenderevidence".The corresponding footno(570)is prudentlymorehonest:
WCM,para.7.1.7,citingICJ1974,p. 204(para.76)".
625
IC3,Judgment, 25 Suly1974,Fisheries JurisdictionCase (Gemanyv.Icelauld),ICJ Reports
1974,para.76.
626Inthe 1974case, themainrelevant circumstancewas the fatat the Applicant statehadnot
submitteda claim for paymentof a certainamount of money as compensation andthe Court
deemed itinappropriatetorequestfkrtherevidence(ibidInt.epresentcase,theApplicant itself
refusestoprovidetheCourtwithsuchevidence.
627See CRM, paras. 5.16-5.17and 5.22 (ii)The whole text ofboth paragraphs (whichare
identical)readsasfollows:"compensationshouldincludinteraha:
(a) the Ioss causedto Costa Rican vessels arising frothe so-called"departureclearance
certificate'imposedonCostaRicanvesselsnavigatingtheanJuanRiver;
(b)the Iosscausedto CostaRicaforthecharge of tourism cards,transitpermitsand immigration
fees imposedonCostaRicanvesselsnavigatingthe SanJuan River;
(c) theIoss causedto CostaRica for the charge afconsularvisato any CostaRican citizen
seekingtonavigatetheSanJuanRiver;
Id)tilelossescausedto CostaRicaforthe furtherexpensesincurreby CostaRicancitizensthe
consequentiallossesitheir activitiaswellasall othermaterialandmoral damagesufferedby
them;6.45. The position of the Court in the Fisheries Jurisdiction case and the
conclusions whichcan be drawn fom it are amplyconfirmed by the case-law
whichCosta Ricamentionsin paragraphs 5.20 and 5.23 of herReply and which
deservescloser scrutiny.Inchronolagica~ order,those decisionsare:
* In the case of the Factory at Charzbw, the Permanent Court
declaredthat the Polish Governmentwas "under an obligationto
pay, as reparation to the Geman Government,a compensation
corresponding tothedamagesustainedby the [German Companies
OberschlesischeStickstoffwerkeand BayerischeStickstoffwerke]
as a resultof "Poland'sunlawful attitude"and. theCourt accepted
to reserve "the fixing of the amount ofthis compensationfor a
fbture judgment"628B . ut before making this decision,the Court
carefully ascertained"whether these Companies have in fact
suffered damage as a consequenceof that attit~de'"~'.On the
principleof the Polish responsibility,the Court laid down "the
guidingprinciples according towhich the amount of compensation
r,630
due may bedetermined , andit "discarded forwant of evidence,
indemnity for [another]damage alleged by the Bayerische"on the
followingbasis:
(e)theexpensesandcostsincurredbyCostaRicaas a resulof Nicaragua'sviolationscausing
CostaRicatobe unabletoresupplythpolicpostsalongtheCosta&can bankthroughtheSm
JuanRiver;
(fintereatprevailinratesfromthetimtheclaimaroseuntipaymentofthejudgment;and
(gsuch othereliefatheCourtmay deem appropriate".
62PCIS,Judgment,13 September1928,TheFuctog, atCharzciw,ClaimforIndemnit Myerits,
SerieA,No. 17,pp.63-64.
629bid.,p.30;seethensuingdetaildiscussiopp.30-34.
Ibid ..46. "The Courtmust howeverobservethat it has not beforeit
the data necessaryto enable itto decides tothe existence
and the extent of damage resulting fram alleged
competition of the Chorztjwfactory with the Bayerische
factories;the Court is not even in a position to say for
certainwhether themethods ofthe Bayerischehavebeenor
are still being employed at Chorzbw, lzor whether the
products of that factoryare to be foundin the markets in
which the Bayrischesells or might sell products fiom its
own factories.In these circumstances,the Court can only
observe that the damage allegedto have resulted .from
competitionis insufficientlyproved.''31
In theCovfu Channelcase,"[tlhe Albanian Government [had]not
yet stated which items, if any, of the various sumsclaimed it
contests, and the United Kingdom Govement [had] not
submitted its evidence with regarto them [,t]he Cowt therefore
[considered] that fwther proceedings on this subject [were]
necessary~363,and in the Hostages case, where "the form and
amount of [the)reparation"couldnot be determinedat the dateof
the initial ~ud~rnent~'~t,he existence and consistency of the
damagewereopentodoubt.
In both theCrsseConcerning Military and Paramilitary Activities
i~and agains Nicaragua, and that ConcerningArmed Activities
on the Territoryofthe Congo(DemocraticRepublicofthe Congo
v. Uganda), it is apparent that at least "a certain amount of
"IIbid .p.56-57.
9 April1949,Merits,Rec. 1949,p.26;seealso,Judgment,ISDecember1Cog% Channel,
Compensation, ec. 1949,p. 245.
633ICJ24 May 1980,Judgment, 1980,UnitedStats D@lomaticand ConsularStinTehran,
ICJReports1980,para90. evidence''oftheallegedinjuryhadbeenprovided duringthephase
ofdeterminationofresponsibility."634
6.46. Notwithstanding the particular circumstancesof each case, it clearly
appearsthat CostaRica has notcompliedwith her dutyto offer an "amount of
evidence" of the injury allegedlysustainedand of its causalrelation withthe
alleged internationallywrongful actsof Nicaragua,sufficient to allowthe Court
to appreciatethe seriousnessof her claimfor reparation. Mutatismutandis, the
now firmly established Oil Plafovrns jurisprudencecanbe used as a guideline:
"the Court cannot limititselfto notingthat oneof the Partiesmaintainsthat such
a dispute [damages] exists,and theother denies it,Itmust ascertain whether the
violations ofthe Treaty of 1955[of 18581pleaded by Iran [CostaIiica] do or do
not fallwithintheprovisionsoftheTreaty[arethe cause of the allegeddamages]
and whether,as a cansequence,thedisputeis ane whichthe Courthasjurisdiction
~635. Similarly, in the
vatione rnateriae to entertain [compensationis due].,,
present case, it fell toCosta Rica to establish the reality of the damages she
complainsof and a "sufficiency of subject-matter between the
allegedwrongkl acts on the one hand and these allegeddamages.She has not
fulfilledthisduty.
Likethe casesconcerningthecourseofboundariesbetween States; where
6.47.
the Court avoids expressingits viewson the respective responsibilitiesof the
parties, inthepresent case the Court willno doubtavoid mixing the legal issues
634See Judgments of27 June 1984,Military and Paramilitary Acciviries in wd against
Nicaragua, Merits,ICJRepor1986,para.284;and 19December 2005,ArmedActivitieonthe
Territoryof the Congo{DemocraRepublicoftheCongo v. Uganda),ICJ Reports2005paras.
259-261.
63TCJJ,udgment,12December1996, OilPlatfbrms,PreliminaryObjectiICJ Reports1996p.
810,para.17.
63JudgeDameRosalynHiggins,SeparateOpinion,ibid.,p854.concerningtheregimeof theborder with that ofthe allegedresponsibiIityof one
or the other party. In theCase Concerning theLand aud Maritime Boundary
betweenCameroonandNigeria, the Court declinedto'"seekto ascertainwhether
and to what extent Nigeria'sresponsibilitytoCameroonhas been engagedas a
result" of the occupationof the Bakassi~eninsula'"'~.Similarly,in the present
case,the Declarationsrequestedby thepartiesasto theregimein questionwill be
sufficientanswerstotheirrespective concerns.
6,48. These remarksare made, as are all the commentsin the present section,
for the sole sake of the legal discussion and with the purpose of answering
exhaustively all the arguments madeby Costa Rica in her Reply. The
fundamentalpositionofNicaraguais andremainsthat Nicaraguahas not violated
any of the obligationsincumbenton her under the 1858 Treaty of Limits as
interpretedby the ClevelandAwardof 1888.To thecontrary,it isCostaRicathat
hasseriouslyinfringedNicaragua'ssovereigntyovertheSan JuanRiver. And this
iswhyNicaraguahas requestedaformalDeclaration by theCourt.
6.49. Costa Rica is rightto note, inthe Introduction of her Reply, that the
reservationsincludedat theend of Nicaragua's ~ounter-~emoriaP~~ arenot(and
are notpurportedto be) counter-clairn~~~A ~.lthoughthe rightsthereinreserved
and thebreaches of the I858 Treaty by Costa Rica mentionedin Nicaragua's
reservationsarenotdirectlytheobject ofthe presentcase, theyare clearlpartof
the general background.Withthese reservationsNicaraguawishesto make clear
thatthere are more issues concerning the rights of navigation on theSan Juan
63Judgmentof 10October2002,Merits,ICJReports,p. 452,para.319.
63SeeNCM,p. 251.
"'SeeCRR,para. 1.17.- River and its outlets thanare reflectedin the claims brought by Costa Rica and
are presently before the Court.With this in mind, Nicaragua expresslyreaffirms
her right to"bring claims againstCostaRica for theecological damage done to
the waters of the San Juan River as well as for the diversion of itstraditional
waterflow into agricultural,industrialand otheuses in CostaRicanterritory and
intotheColorado ~iver."~~'
"O NCM, p.25I, para.3.On the basis of the facts and legal considerations forth inthe Counter-
Memorialand theRejoinder,theCaurtisrequested:
To adjudge and declare that the requests of Costa in herMemorial
andRepplyare rejectin general,and iparticularon the followingbases:
(a) Eitherbecausethere inobreach of thprovisionsaf the Treatyof
Limits of 15 April 1858 or any other international obligation of
Nicaragua.
(b)Or, as appropriate, because the obligation breach of which is
alleged,isnot anobligationunder the provisionof theTreatyof
Limits of 15April 1858orunder generalintematianal law.
Moreover,the Courtis alsa requestedtmakea formalDeclaration on theissues
raised by Nicaragua in SectioTIof ChapterVII of her Counter-Memorialand
reiterateinChapter W, Section3,ofherRejoinder,
CARLO Sose ARGUELL O6mz
Agent of theRepublic ofNicaragua
15 July 2008 APPENDIX
1. Costa Rica has attached to her Reply an Appendix entitled "Some
Historical Issues," Most of the issues in this Appendix are not relevant to the
questionsthat are before theCourt.Thosethathave any relevancehavebeen dealt
with in the textof this Rejoi~der.Nonetheless, simply to set the record straight
Nicaragua attachesthisAppendixto herRejoinder.
Section I. TheSanJuanRiver
ii. The subjects addressed in this section and the section that follows --
regarding the issue of Nicaya --are historical rather than juridical in nature,
because the Treaty of Limits, the Cleveland Award and the awards af General
Alexander have established the boundary betweenNicaragua and Costa fica,
rendering the difficult task of interpreting colonial documents or colonial and
post-colonialeflectivits unnecessary.
iii. Regardingthe first of thesehistoricalissues, Costa Rica states that during
the colonial period --that is, before independence-- the San Juan River did not
belong exclusivelyto eitherofthe provinces.
i. In order to demonstrate the above, Costa Rica states"' that Nicaragua
that the Royal Charter of 1573 establishes that the mouths of the
Desaguaderobelong to Nicaragua, butthat paragraph 5 af this Charterstipulates
that the concession granted to Diego de Artieda begins: "on the northern part
CR, A 05,
64WCM ,aras.1.2.11and 1.2.3.fiom the mouthsof the Desaguadero. 9,643The followingphrases ofthe Replyare
confusing: first it states that the mouths of the Desaguaderoare included inthe
concession,then that theyare not. Subsequently,CostaRica statesthat paragraph
12 of the Charter adds "ques a Iaspartes deNicaragua,"and that this addition
must be translatedas "that is to the parts of Nicaragua" andnot astranslatedby
Nicaragua:'%at belongsto~icara~ua"~'~.
v. The more completetext of Paragraph 12 of the Royal Charter stipulates
that the territory of Costa Rica would extend".., on thenorthern part, from the
mouths of the Desaguadero, that belongsto Nicaragua (ques a alapartes de
Nicaragua), all across the land, to the Province of Veragua." The correct
translationof thisis not the literaltranslatofthe old Spanish text. Inany case,
"artes de Nicaragua"does notmean "partsof Nicaragua"but it isanotherusage
of the term "partido de Nicaragua" which was the way these territories were
identified:puvtes orpartidos. Thephrase"ques a''can onlytrulybe translatedas
that "belongsto". If this differenceof opinion were relevantto the case it could
be easilyresolvedby an expert opinion suchas the one Nicaragua providesin this
Rejoinderon the pertinent phrase"conobjetos de comercia", But in any case,
any personwho has weadDon Quijotewouldhaveno difficulty understanding that
Nicaragua's translationis correct.
vi. Costa Rica adds645 that in any case, the RoyalChatter of 1573does not
establish any change in possession of the entire course of the river or any
significantchangeof the borders,or any modificationof the rights of navigation
and fishing awardedby theRoyal Charterof 1540and the Orderof 1561.
643RoyalChartetoDiego ArtiedaNCM,Vol. 11Annex 86,p.302.
644CRR,p. 214,h. 606..
645CR,A 09.vii. Apart from the above, Costa Rica citesM% document to which no prior
reference has been made: a Royal Charter of 1576, in which authorization is
granted to Diego Lopez to conquer and populate the Province of Lataguzgalpa,
which includes the land"fro he mouth of El Desaguadero to the northup to
Cape Camaron." According to Costa~ica'~~,this demonstrates that the territory
of Nicaragua did not reach the mouths ofthe Desaguadero. Such importance is
assignedto this aspectthat a mapis attachedafterpage 21ofthe Reply.
viii. The reality is that Diego L6pez never proceededwith the conquest and
population of Lataguzgalpa,because he was unElbXto find partnerswho would
facilitate thmoney required to cover the implied costs, as occurred on many
other occasions.The resulwas that Lataguzgalpadid noeven begin to exist.
ix. In spiteofthe above, accordingto Costa ~ica~" the territorynorth of the
San Juan was left to the ProvinceoLataguzgalpa and Costa fica continuedwith
the same limits establishedby the Royal Charter of 1540 and corrected by the
RoyalCharterof 1541and the Orderof 1561.
x. Costa Rica that thissituation continued in the eighteenth
centuryand that thisisconfirmed by the report by Luis Diez Navano to the
CaptainGeneralof Guatemalain 1744,which states thatCosta ICica'jurisdiction
is"from the north, from themouth af the San Juan river until the Shieldof
Veraguas at theKingdom of TierraFirme," and by the Costa Rican Constitution
of 1825, which indicates the "mouth of the San Juan River" as the northern
64CR,A 10.
64CR, A II.
@ CR,A 12*
64CR,A 13.border6". Clearly, Costa Ricegives an inclusive characte$0 the word "from" in
English and "desrde7in Spanish,whichis contraryto commonusage.
xi. The paragraphs above attempt to provide a bit of order in a conhsing
account of colonial recordsthat seeks tmakeone forget the fact that the Royal
Chartersonly set borders in a conditional manner. Thatis, limitswere set so that
the concession holder could exercise conquest andcolonization within them.
However, if these acts were not carried out, the limits disappeared. This is
completely different from the borders set by Royal Orders (Reales C&dulas),
which marked provincesto be createdor thatwere alreadyestablished.
xii. With respect to the Royal Charter of 1573, however, upon which
Nicaragua supportedher right over the San Juan River, it is importantto note the
opinion of the Costa Rican Academyof History - soimportantthat, although it
is cited in footno29 on page 20 of the Counter-Memovial, it is reproduced here:
",+.it wouId not be until 1573, withthe Royal Charter granted to Mieda and
Chirinos, that a significant change occurred with the respect to the limits. This
latter date would alsofix the limits that would reign during the entire colonial
regime'765'
xiii. Apart from the documents cited, the geographical reality indisputably
points to thefactthat theSm Juan River couldonlyhave been part of Nicaragua
inthe colonialperiod.Thus, thereareno Costa Ricancitiesthat abutthe San Juan
and would have needed its waters for navigation. The river was almost
exclusively used for commercialtraffic between the Nicaraguan cities on Lake
Nicaragua,particularlythe city of Granada,that handledmost of the commercial
CR, A 14.
HistariadeIcentenariode la entdedCavadldnaCostaRica(1561-1961),1961.p. 45.See
NCM,para. 1.2.11.traffic to anfrom Spain and the Caribbean.The fort of Sa~lCarlos defendingthe
San Juan River is and has alwaysbeen in undisputedNicaraguan territory.There
was absolutely no reason why the Spanish authorities would even have
considered giving the jurisdiction othis waterway to Costa Rica whose main
citieshadno accessto the river.
Section TI. TheMatterof Nicoya
xiv. Nicaya was a territory that, duringthe colonial era, famed part of
Nicaragua, Its limiwith CostaRicawas theEl SaltoRiver.
xv, Costa Rica states652that Nicaragua claims that Njcoya was annexed
unilaterally by Costa Rica, exploiting the conflict in which Nicaragua was
involved in 1824, and that legally it remained a part of Nicaragua when the
border treaty negotiations of1858 began, According to Costa Rica, these two
statements lackanyfoundation.
xvi. In support of her thesis, Costa Rica alleges653that Nicoya participated
togetherwith CostaRica in the electioof deputiesto Spanishcourtsin 181 3 and
1820;that Nicoya decided to joinCosta Rica in a plebiscite in 1824,which was
ratified by the Central American Federal Congress in 1825; and that Nicaragua
did not include Nicoyas part ofherterritorin her 1825Constitution.
xvii, With respect to the above, it is important to observe that Nicoya's
participation in the election of deputiwas due to thefact that, without said
participation,Costa Ricawould have been deprived of the right to participain
the courtsbecauseshewould nothave hadthe requirednumber of inhabitants. In
CR,A 15.
65CR,A 27-18.addition, this participationwas only for thesake of the electionsand did not
constitutean annexation*
xviii. Inrelationto theplebiscites,it mustbe notedthattheplebiscite itselfis an
acknowledgmentand the clearestproof that this district (partido)was part of
Nicaragua. AZI the formercolonial possessions ofthe SpanishCrown,including
Costa Rica and Nicaragua,have acceptedthe principleof utipossidetis izariin
the settlementof territorialquestions.Wheneverthis principlehas been vioIated
or ignored,there havebeen serious and lasting consequencesT. he principlwas
accepted preciselyto avoid situationslike that provoked by the CostaScan
annexationofpartsoftheterritoryofNicaragua.
xix. The dateof Independenceof Nicaraguaand CostaRica is 15 September
1821 andthe firstplebiscitetookplacein 1824.This plebiscite was held ata time
when Nicaragua was divided and in the midst of a civil war, with opposing
governments in Leon and Granada. In addition, the lack of credibility of
plebiscites held in territoriesunder foreign occupationand without impartial
oversightis wellknown. The tnth is that afewlandownersinNicoyadecidedto
breakaway from Nicaraguatohavemorecontrolovertheirproperties.
xx. Finally,it is trthat theNicaraguan Constitution of1825 did notinclude
Nicoya onthelist of administrative areas.Butthesame istrueof theCosta Rican
Constitutionof the same year. In fact the Costa Rican Constitution gives a
geographic description of her territory and does not divide itabstractly in
administrative areaswith undefined territoryas does Nicaragua's. The Costa
Rican Constitution states:"Article2.The State'sterritory willextend,for now,
from west to east, Erom the Salto River, which divides it fkom that of
7,654
Nicaragua. .. .The Salto River was precisely the limit of Costa Rica with
65FundamentalLaw ofthe StateofCostaRica. CRM,Vol. Annex 193.
336Nicoya.The ConstitutionofNicaraguastipulatedin Article I1that, "Theterritory
of the State embraces the districtsof Nicaragua,Granada, Managua, Masaya,
Segovia,Subtiava, andEl Realejo." The mostthat can be saidof theNicaraguan
Constitution IsthatNicoyais not mentioned by name,as,for example,Matagalpa
or Bluefields were not mentioned by name, as fur example Matzgalpa or
Bluefieldswere alsonot mentionedby name, but not that it was excludedas the
CostaRicanConstiltion mostcertainlyexcluded Nicoya.
xxi. With respect to the claimthat the annexationofNicoyawasratifiedby the
Federal Congress, whatthe Reply fails to mentionis that the Resolutionof this
Congresswasprovisional innature.Theannexationwas accepted inthe wording
of the Resolution,""Fr the timebeing, and untilthe demarcation of the territory
provided by Art. V11of the Constitutionis made. .+'"55 What was stipulatedin
ArticleVII af the FederalConstitution was:"The demarcationof theterritoryof
the States willbe made by a Constitutionallaw withpresence ofthe necessary
data." However,the Federationended in 1838 without havingpassed this law.
Therefore,the annexationremainedprovisional innatureuntilthe Treaty of 1858
putan endtothis question.
xxii. In theReply, one clearlyseesthe intentionto deny thatthe recognition of
Nicaragua's sovereigntyover the San Juan River was the quid pro quo for
recognitionof Costa Rica'ssovereigntyinNicoya,but rather thatthe sovereignty
over the San Juan was balanced withCosta Rica's right to free na~i~ati01.1~~~.
Withthis argument, the intentisto givea highervalue to freenavigation,making
itappear as the only thing received by Costa Rica, since she already held
sovereignty overNicoya, However,this argumentseems to contradictthe prior
"'DecreeoftheFederalCongressof CentralAmerica,9 De1825. CRRVol.11,Annex5.
"'CR, A 21.paragraph657i,n which it is stated thatthe Treaty of Limitswas intimately linked
with the Costa Rica - FCIixBelly Nicaragua Canal Agreement of 1 May, 1858
(two weeks after thetreaty), This agreement established that the two countries
would be co-sovereigns over the canal and, therefore, have the right to
navigation,In this way,conhsion is generatedbetweenthe right to navigatioon
theriver and thatof ahypotheticalcanal.
xxiii. The detaiIs of that agreemenare irrelevantsinceitwas not ratifiedBut
apart from thisfact the cantext inwhich it was signed should notbe lost. The
treaty came about fiom the intrigues of French adventurerwho passed himself
off as aconfidential agent of his government,attemptingto exploit the stateof
mind of aNicaraguan president whose country had recently been the victim of
William Walker's filibustererinvasion and remained fearfiilof new invasions.
The adventurer presented the apparent opportunity to obtain not only the
constructionof the desired inter-oceaniccanal but also the protectiof France
and other European countriesagainst the threat of new filibusterer invasions.
Only months before, Nicaragua had signed the Cass-Irisarri Treaty and, in the
United States, there was a refusal to commit to stopping an attack by new
invasion forcesfi-omthat countrytoNicaragua.
xxiv. Faced with this situation, the Nicaraguan president enthusiastically
accepted theproposals of the French adventurer,and Costa Rica took advantage
of this acceptance. However, these were no practical effects, as the French
government discovered the abuses carried out in its name, and the treaty was
neverratified.
657CR,A 20.xxv. In thefinalparagraphof SectionB~~~ it,is stated that Costa Ricahas not
attemptedto conquerand annex any Nicaraguanterritory. If this statementhad
not been made in the Reply,it would not have been appropriateto recall that,
duringthefirst filibustererinvasion,CostaRica,withthedesire to appropriatethe
inter-oceanictr-ansitroutby force, had occupied militarypostsalong the San
Juan River. On 14 October 1857, she sent an ultimatum $0 the Nicaraguan
commanderto surrenderthe fortat San Carlos,situatedat the beginningof the
San Juan River on LakeNicarapa. This was considered by Nicaraguato be a
declarationofwar, asreflectedinadecreedated 19October 1857,"'
xxvi. This effort by Costa Rica to conquer and amex Nicaraguan territory
provoked theriaction ofthe UnitedStates,Thus,Nicaragua citedinher Counter-
Memorial the note senby the United StatesSecretaryof Stateto his Minister in
Nicaragua inwhichhe expresses concernthatCostaRicapretends"to appropriate
to itselfportionsoftheTerritoryof~icara~ua."~~'
A. THE COSTACAN CONSTITUTIO NFS1825AND 1841
xxvil. Costa Rica claimed inher Memorialthat the limits set inits Constitution
of 1825were equivalenttothose set inthe Decree of Bases and Guarantees of
18416",whereasintruththerights basedon utipossidetis iuriswererespectedin
1825,andin 184 1,thisprinciplewasviolated.
658CR,A 22.
659SeeNCM, para, 1.2.43.
"' NotefromLewis CaseSecretarofStatoftheU.S,,to WilliaCareyJonesSpeciaAgmt
oftheU.StoCentralmerica.NCM, Vol11,Annex37.
'" SeeCRM,para.2.13.xxviii. The~epl~~~ s~ates that Nicaragua attached aMap No. 3 to her Counter-
Memorialwith the intention of showingthe border pursuant to the Costa Rican
Constitutionof 1825. However,Costa Rica maintainsGG t3at thismap showsthe
startof the line at the mouth of the ColoradoRiver,not at thaof theSanJuan,
and the line ends at the Tempisque River, not at the Salto River. Costa Rica
trther claims that the Constitution doesnot establisastraight line between the
mouth ofthe San Juan andthe Saltofiver.
xxix. Firstof all, itmust be pointed out: that the Colorado River is reallya
mouth of the SanJuan River, and iwas not until the ClevelanAward in 1888
when it was decided that this was not theborder; that the name ofEl Saltowas
later changed to Ternpisqrte;and that when the Constitutionstipulates the start
and end points of the border but does not indicatethe line betweenthem, it is
logicalthatsaid linebe a straightline.MapNo. 3 isan illustrationof the situation
as understood contemporaneously. It is takenfiom a set of maps prepared under
the directionofMr. Ephraim Squier whowasappointed Charge d'affairesof the
United Statesto CentralAmericain 1849and wrote extensivelyaboutthe area.
xxx. With respect to the non-inclusionof Nicoya in the Constitutionof 1825,
Costa Rica statesthat the Constitution was issued eleven months before the
decree of annexation, for which reason itincludes the expression "'fornow."
Costa Rica fails to note, however,that this decree was provisional in naturas
indicated above in parstgraphxxi. As a result, Nicoya did not belong toCosta
Rica until after the 1858Treatyand should nothave been included in the Costa
Ricandecreeof 1841,just as it hadnot:been includedin the 1825 Constitution.
66CR,A 23.
66CR, A 24. B. NEGOTIATIONF SORTHE INTER-OCEAN CACNAL
xxxi. Costa Ricastates664that Nicaraguaclaimsto have actedaloneinthe cam1
and transit contracon the San JuanRiver, and that Costa Rica'spretensionof
having participated alone or jointlyin canal treaties has no historicalor
documentarybasis"'.
xxxii. With respect to the above,it must be notedthat the Award of President
Cleveland decided that:"The Treaty of Limits of the15&day of April, one
thousandeight hundredandfiftyeight, does not givethe Republicof CostaRica
the right tob&'.aparty to grants that Nicaragua may make for inter-oceanic
canals..."666Furthermore, if Costa Rica has no right to be a party, then
Nicaragua,as the exclusivehalder ofthis right,may grant to any othercountry
includingCosta Rica saidright.
xxxiii. This is what occurred withthe Montealegre-JimdnezTreatyof 1869, in
which Nicaragua granted Costa Rica the right to participate in the Ay6n-
ChevalierTreaty,which was notratified. Anothertreatcitedby Costa~ica~~i's
the one signedby the two countriewith FklixBelly, referredto in paragraphs
xxii-xivabove,andwhichalso was notratified.
xxxiv. Theonlynavigation contractcitedby Costa~ica~" is one thatwas signed
on 24June,1857, afew weeksafter theendofthefirstfilibustererinvasion,when
Nicaragua had not yet recovered controlof the San Juan River transit route.
6MCR,A 29.
66SeeNCM, paras.1.3.and1-2.48-49.
'"ClevelanAward ,p,cit.,para.CRM, Vol.11,Annex16.
CR,A 30.
CR,A 32.Moreover, asexplained above, CostaRica herself had taken over controlof the
San Juan route and even threatened to take by force the Nicaraguan garrison
stationed inthe fartof San Carloson the San Juan River. All of which led to a
Declaration of War by Nicaragua against Costa Rican in Decree No. 139 of 19
October 1857.669This single contract onlywith ironycouldbe consideredto have
established a righofCostaRicaoncmal matters
xxxv. Costa Rica also that several treaties signed by Nicaragua,
including theCass-IrrisarriTreaty withthe United Statein 1857,statethat these
treaties "shall not be construedto affethe claims of the governmentof Costa
Rica to a free passagebythe SanJuan River fortheir personsandpropertyto and
fromthe ocean." Thetruth is thaallofthesetreatiesrecognizeonlythe existence
of a Costa Rican claim, and not aright,Also, they were priorto the Cleveland
Award, which intepreted the clause of the 1858Treaty regarding Nicaragua's
exclusiverightto enterinto SanJuan River canaltreaties,
Section 111. Costa RScanNavigation onthe SanJuan Riveras of 1888
xxxvi. This section ofthe Appendix of the Reply attempts to demonstrate that,
after 1888,Costa Rica hascontinuednavigation on revenue service cuttersand
other public vessels, contrarytowhat has been affirmed by Nicaragua in hex
Counter~emorial,~~'
66See DecreeNo.139,19Oct.1857 . CM,Vol. 11,Annex57p.203
670~~,A 31.
67See NCM, para4.2.7.xxxvii.The materialcontainedin this section bas been addressedin the text of
thisRejoinder in Chapter V. Withone exception,this Appendix willnot revisit
thecasesthat have alreadybeen dealt within other sections.
xxxviii. This exceptionisthe incident oftheAdela, whichis also dealtwith
inChapter V above: The Adela incident provides, clearproof
that CostaRica as recentlyafter the 1888 Cleveland Awardas 1892 was aware
thather boats could notnavigate withweapons anywhereon the SanJuanRiver.
Furthermore,the incidentis a clear confession by Costa Rica of aviolationshe
committedagainst the treatyand ClevelandAward.In fact, this incident brought
up by Costa~ica supportsthecaseofNicaragua.
xxxix. Costa Rica states (A 35 and CRM 4.85-6) that the Adela left the San
Carlos River and travelledup the SanJuan River with a Commanderof he
InspectorateGeneralof Revenue and eight guards,seeking toestablish a postat
Territn Colorado on the banksof the Frio River.In the words of the Inspector
Generalhimself inthereport sent tohis superiorshestates:
XI. "Beforeentering thewaters under exclusivedominiurnof Nicaragua,1 did
hide in Costa Rican territorythe arms and ammunitions that f carried for that
post,and thus the guards havingbeen disarmed 1 left them on board of said
steamboat whileat a place called'El Ticho'and I went before themto 'Castillo
Viejo'with the intentianof requesting,as I did, permission frothe commander
of that fortress to cross the San Juan River with the aforementioned
weapons. ..9672
67Report ofCiro A.Navarro,Assistantto the Inspector,oethe General Inspecofrthe
Treasury,March 1892. CRM,Vol.VI,Annex209.xli, The results of his request were that "the steamboat carrying the guards
was searched, as weElas the river's coastlines, and the Castillo was reinforced
with at least25 soldiers."
xlii, Costa Rica states that Nicaragua has presented this incident as a
demonstrationthat Costa Rica does not have the right to navigate theSan Juan
with weapons673 but that this is a false interpretation of events6", and has
provided a mapthat showsthe course of theAdela. Themapdoesnot clarifthe
commander's reason forconcealingthe weapons in Costa Rican territorybefore
going to request permission,Itislogicalto assume,however, thatthe reason was
so that the Nicaraguan commanderat El Castillowould not know that the Costa
Rican vessels had navigated with weaponsin the part of the river where she has
the right to navigate with "objetos de comeircio". The fact that she was
deliberatelydoing this without the knowledge ofNicaragua does not prove she
was doing sobased on any rights; itprovesthe opposite.
xliii. The Inspector left the boat "before entering the waters under exclusive
dominiurn ofNicaragua". Therefore the boat with the weapons wasmoored on
that partof the river where CostaRica has rightsofnavigation.Nonetheless,the
inspector tookthe weapons out of the boat and hid them on Costa Rican soil.
Why was this necessary ifthe boatwiththe weaponswas moored in that pastof
theriverwere shehad rightsofnavigation?
xliv. After the Nicaraguan headof the garrison found out that the Adela was
carrying weapons, he immediately wentto the place were the boat was moored
and searchedit. That is, he searchedthe CostRican steamboat whileon that part
of the rivewhere CostaRicahas rights of navigation.This search was obviously
67SeeNCM, paras.4.2.2.-4.2.21.
674~ee~~,gm. 1.15.anticipated and that is why the Costa Rican captain had hidden the weapons,
which only points to thefact that they hew they were not allowed to navigate
withweapons.
xlv. The AdeZu incident only confirms Nicaragua's position that she has
always exercised control over the watersof the San Juan River and that Costa
Rica has nevernavigated the rivet openly with weapons.That shemayhave done
so secretly is another matter; but those surreptitiouactionsare not proof of
rights.
Conclusion
xlvi. The rights of navigation and passage grantedto Costa Rica by theRoyal
Charterof 1541were notin effectat the timeof independence.
xlvii. Nicoya was annexed provisionally to Costa Rica in 1825, and this
annexationcontinuedprovisionally until.th2858Treaty ofLimits.
xlviii.Recognition of her sovereignty over Nicoya constituted part ofthequid
pro quo that CostaRica receivedin acknowledgingNicaragua's sovereigntyover
the SanJuanRiver.
xlix. The Costa Rican Constitution of 1825 is in accordance with the uti
possidetisiuris of 181 and contradictsthatof 1841,which includesNicoya.
1. Costa Rica cannot participatein canal contracts,unless Nicaragua grants
herthis right.
li, Costa Rica has theright to navigationon the San Juan River only in the
limited manner granted under the Jerez-Cafias Treaty and Cleveland Award. LISTOFANNEXES
VOLUMEI1
AGREEMENTS
ANNEX 1 Convention Between Nicaragua and Costa Rica, 3
Supplementalto theConventioofJuly13'"ofthisYear,
Relatedto the Improvemenof thColoradoorSanJuan
fivers (Rivas-Esquive21December1868
ANNEX 2 Conventianon BiodiversityConservationand Protection 9
ofPriority WiAreas inCentraAmerica, 5 Jun1992
ANNEX 3 Inter-Institutional Conventionfor Environmental 17
Conservation and the Sustainable Use of Natural
Resources Signed Between thhe Ministry of the
Environmentand NaturalResourcesand thheSandinista
People'sArmy,29 March 1995
ANNEX4 Final Minutes from the fV Nicaragua-Costa Rica 23
BinationalMeeting13May 1997
PLEADINGSOF COSTAEUCA
ANNEX 5 Argumenton the Questionothe Vala'diof thTreatyof 27
Limits Between Costa Rica and Nicaragua andOther
SupplementaryPoifitsConnectedwith it,submittedto the
Arbitration of the President ofe United States of
America, Filed on Behalof theGovernment of Costa
Rica.Washington: GibsoBros.,1887
ANNEX6 Reply to theArgument of Nicaraguon the Questionof 39
the ValidityorNullityof the TreatyofLimiAprifl5,
1858,to bedecidedby ThePresidentoftheUnitedStates
of America, as Arbitrator, Filedon Behalf of the Governmentof Costa Rica.Washington: GibsonBros.,
1887
DIPLOMATIC COmSPONDENCE ANDRECORDS
ANNEX 7 Instructionscarrbydthe specialMinisterappointedto 43
the Government of Nicaragua, Mr. Francisco Maria
Orearnuno'sDiplomatic MissitoNicaragua, 1838
ANNEX 8 "Protocol ofthe conference of 10 January 1854." 49
Published in Esgueva, Antonio. The Borders of
Nicaragua afid CostaRica inthehistorical docume~zts,
Managua: IHNCA-UCA2 , 007.pp.336-337,Document
No. 132a
ANNEX9 "Protocol of the conferenceof 9 February 1854." 53
Published in Esgueva, Antonio. l%e Borders of
Nicaragua and Costa Rica in the historical documents.
Managua:IHNCA-UCA,2007.pp. 340-341,Document
No. 132e
ANNEX 10 "Memorandum from Costa Rica, dated 13 February 57
1854, mentionedithe protocoofthe conferenceof17
Febmary." Publishei~Esgueva,Antonio. The Borders
ofNicaraguaand CostaRica in thehistoricaldocuments.
Manapa: INNCA-UCA, 2007.p. 344?DocumentNo.
134
ANNEX11 Message ofthePresidentof theRepublic[of CoRicaj 61
tothe Congress of 6 September 1857. Published in
GacetadelSalvador,Cojutepequ7,October1857
ANNEX 12 Note &om William Carey Jones, Special Agentaf the 69
United States to Central America, to Lewis Cass,
Secretaryof StatetheUnitedStates2November1857
ANNEX13 Note from William Carey Jones, Special Agentof the 75
UnitedStateof Americato CentraAmerica,to General
Lewis Cass, Secretaryof Stateof the United States, January1858
ANNEX 14 Letter from Eduardo Montealegre,Foreign Ministerof 79
Nicaragua, to Lorenzo Guerrero, Director of the
Nicaraguan InstituofTourism,1 September 1999and
EmailFromDr. Alfiedo FerretLugo, General Secretary
of the Nicaraguan Tourism Institute, to CBlanco
Marina, 13September1999
PRESS REPORTS
ANNEX 15 "CostaRicansDamageFlora inthe SanJuan River,"La
Prensa (Managua),3June 1991
ANNEX 16 "TouristanGuide Ki~happed,~a Nacidn(SanJosk),3
January 1996
ANNEX17 "Border Rowwith Nicaraguans,"LNacidn (SanJosd),
I6July1998
ANNEX18 "Alemin Rejects ArbitratiCostaRica Accepts New
MeetingwithNicaragua,La Prensa(Managua),25 July
1998
ANNEX19 "CountryFirmin MeetingwithNNicarag~ans,aNacidn
(SanJosC),2July 1998
ANNEX 20 "CostaRicanGuards PoinGuns atNicaraguanBoaters,"
LaPrensa(Managua),30 July 1998
ANNEX2.8' "NicaraguansDenounce Costa Rican Harassment on
National Territory," Prensa (Managua),2 August
1998
ANNEX 22 "Costa Rica RetaliatesLa Pvensa (Managua), 15
August 1998
ANNEX 23 "AnotherCosta%can Map 'TakestheRiver,"'El Nuevo Diario (Managua),26August1999
ANNEX24 '31ndioMaiz Declared World BiosphereReserve,"La 133
Pre~sa (Managua)1,0July2003
ANNEX 25 "CrocodileDevourschild in the Indio River,"La Prensa137
(Managua),0 April2007
ANNEX26 "Crocodile Kills 13-year old boyWho Was Bathing in 143
the River,LaNacidn(SanJosd),5 May 2007
ANNEX27 "Costa Rican Mine Has Unleashed Concern in 149
Nicaragua,"MiamiHerald(Miami, FL),21June 2008
BOOKSAND TREATISES
ANNEX28 Folhan, Jr,David I.The NicaraguaRoute.Salt Lake 155
City,UT: UniversitofUtahPress, 1972
ANNEX29 GonzhlezVillalobos, Paulino. The Sarapiqui Route: A159
SociopoliticalHistoof 'Road. San JosP;Institute de
Investigaciones Sociales, Universde Costa Rica,
1976
ANNEX30 Efouk-,Richard J. 'The Developmenof ForeigTrade 173
and Communication inCostaRicatothe Constructioof
the FirstRailway",(TheAmericas,Vol. 10,No. 2., 1853,
Qct.,pp.197-209)
ANNEX 31 JirnknezPCrez,Ignacio. The Manateeofthe San Juan 189
River and the Tortuguero Channels: Ecology and
Conservation,Managua:ARAUCARIA,2000
ANNEX32 Jimdnez Orearnuno,Ricardo.His ThazaghtsSan Jos6: 193
Editorial CostaRica, 1980
ANNEX 33 LeBnSaenz, Jorge.The EvolutiofForeign Tade and 197
Maritime TransporofCostaRica: 1821-1900,SanJosh:
Editoriade laWversidad deCostaRica, 1997ANNEX 34 McNeil, Jean. ThRough aide to Costa RicaFourth
Edition (April2005New York: RoughGuides, 2005
ANNEX 35 Molina, FelipeReport on theBorder QuestionsRaised
Beheen the Republic ofCosta Rica and the Statof
Nicaragua.Madrid: Tmprentade la Viuda de Calero,
1850
ANNEX 36 Molina,FelipeStudyoftheRepublicofCostaRica.New
York: S.W.BenedictPrinters,1851
ANNEX37 Molina, Felipe.Memoir on the Bounday Question
Pending Behveen the Republiof Costa Rica and the
.StatofNicaraguaWashington:Gideon& Co.: 1851
ANNEX 38 .RodriguezBolafios, Jose Alberto & Borge Carvajal,
Victor GuillermoThe Railroato theAtlantic in Costa
Rica.San JostUniversityof CosRica:X979
ENVIRONMENTAL REPORTS
ANNEX39 UNESCO Manand theBiospherePrdgrammeCertificate
for the SanJuaRiver BiosphereReserve of Nicaragua,
15September2003
ANNEX 40 Ministryof the Environmentand NatuResources,Son
JuanRiver WildlifeRefugeManagementPlanManagua:
ARAUCARIA-MAREnA-AEC 2005
ANNEX 41 Meyrat, Alan,The Biological Stretchof Southeast
Nicaragua: Important Spacefor the Conservatiof
NatureMARENA-ARAUCAFSA,2006
ANNEX42 Ministry of the Environment and Natural Resources,
Indio MaizBiologicalReserveManagementPlan2005-
2010Period,Fowth Version9May 2006
ANNEX43 Public Prosecutor's Officean Carlos, RiSanJuan
Province, Nicaragua. "Criminal Complaint 000/06." 21
December 2006ANNEX 44 ""ThAnnotatedRmsar List: Nicaragua,"TheRamsar 285
Convention on Wetlands. Available at
http:l/www.rrtmsar.org/profile/leicaragua.htm
ANNEX 45 "BiosphereReserve Information for No San Juan," 291
UNESCO-MB Biosphere ReservesDirectmy. Available
at ~~:l/www.unesco.ordmabdblbribrdirldirectorlu/
biores.asp?mode=all&code=NIC+O2
ANNEX46 Nicaragua, Ministry of the Environmenand Natural 295
Resources, "Species under threat of Extinction:
Maizand BOSAWAS BiosphereReserves,2008
ANNEX 47 Ministry of the Environment and Natural. Resources, 301
"Southeast Nicaragua Biosphere Reserve: Strategic
Program 2008," Available at:
http://www.marena.gob.ni/index.php?option=~~m~~emos
itory&Itemid=l1&func=fileinfo&id=S23
MILITARYDOCUMENTS
ANNEX48 Anny of Nicaragua, "Action Plan for Issuance of 305
Departwe Clearance Certificinthe SanJuan River,"
5July2001
LAWS, DECmES AND EUZGUILATIONS
ANNEX 49 CostaRica, "Basis for the formation of a Company, 309
namedthe SarapiquiCompany....PublishedinReplyto
theAvgzdment of Nicaragua on the Question of the
ValidityorNullitof the Treatof Limit sf April 1.5,
1858,tobedecidedby thePresidentoftheUnitedStates
of America as Arbitrator. Washington, Gibson Bros.,
1887.DocumentNo. 26,pp.144-146
ANNEX 50 CostaRica, DecreeNo.14 of 1860,DecreeClosingthe 315
MoinandSarapiquiPorts Nicaragua, AgreemenNo. 5, Accessioand Ratification
of the Conventionon InternationalTrade in Endangered
Species of Wild Fauna and Flora, 23 April 1977.
PublishedinLaGacetaNo. 183,15 August 1977
Nicaragua, Decree No. 161 Law Creating the
Nicaraguan Tourism Institute,14 November 1979.
PublishedinLaGacetaNo. 62,20 November 1979
ANNEX 53 Nicaragua,RegisteNo.3743 - R/F79 1975,Regulations
on the Issuance, Fonnat and Use of Special Towisrn
Cards,25 May 1993
ANNEX 54 Political Constitutionof the Repubof Nicaragua of
1987anditsReforms,Articles 92 and 130
ANNEX 55 Nicaragua,Law No. 495,GeneralTousism Law, 2 July
2004,Published inLa Gaceta NO. 184, 22 September
2004
ANNEX56 Nicaragua, PresidentialDecree No. 57-2005, 31 August
2005
ANNEX57 Ministry ofthe Environment and Natural Resources
Ministerial Resolution No.029-2006, including the
almendrotree(Dipteyx Panamensis) inthe Nicaraguan
Closed Season System of Wild Speciesin theListof
Indefinite National Closed Seasons16 June 2006.
Published iLaGaceta,No. 141,21 July2006
ANNEX 58 The New Pocket Dictionmy, othe SpanishandEnglish
Languages.London,1 809
ANNEX 59 RoyalSpanish AcademyDictionaries
a) Royal Spanish Academy, Dictionary of the
Castilian Lunguuge.Fourth Edition. Madrid, Viuda de
Ibarra1803
b) Royal Spanish Academy, Dictionmy of the Castilian Language.Fifth EditionMadrid, lmprenta
Real, 1817
c) Royal Spanish Academy, Dictiuna~ of the
Crrstiliananguage. Sixth EditionMadrid, Impremrta
Nacional, L22
d Royal Spanisla Academy, Dictk'oa;zaot the
Castilian Language. SeventhEdition. Madrid, Imprenta
Reall 1832
e) Royal Spanish Academy, Ddctio~ary of the
&'csriHiLnanguage.Elgh%hEdition. Madrid, Irrmprenta
Nacional,1837
IF) Royal Spanish Academy, Dictionmy of the
CastiliaLanguage. NinthEdition.MMd, lrnpreritade
XI.ranciscoMariaFemhndea;,1843
g) Royal Spanish Academy, Dr'cti'onav of the
CastilianLanguage. Tenth EditionMadrid, Impre~ta
Nacional, 1852
h) Royal Spanish Academy, Dicfio~aakplof the
Cuslz'liLa~page. EleventhEdition.Madrid, Imprrenta
deDon ManuelRivadeneyra,1 869
i) Royal Spanish Academy, Dictio~ary of the
CastiEilianguage. Twelfth Edition. Madrid, Impsenta
deD.Gregorio Hemando, B884
j> Royal Spanish Academy, Dictiouary oJ'the
Castilian Language. Thirteenth Edition. Madrid,
Xmpsantade ioSres.Hemando ycompafiia,1899
ANNEX60 Velazquezde La Cadena, Mariano.A Dictionary of the 371
Spanish and EnglishLarzguageNewYork:D.Appleton
andCompany, 1858
ANNEX 61 Porter, Noah ed. Webster's Revised Unabridged 375
Dictionaryof the EnglishLanguage,SpringfiMA:, G.
& C.MerriamCompany, 1913
ANNEX62 Royal Spanish Academy. Dictionary of the Castilian 379
Language. FourteenthEdition. MadriImprentade 10s
SucesoresdeBernando, 1914 EXPERT OPINIONS
ANNEX 63 Letter from Mr. Neil Johnstone, Directorof Langu383
Sewices and Documentation Division of the World
Trade Organization to Ambassador Aliciaartin,
PermanentRepresentativetheRepublic oNicaragua
tothe Officeof UnitedNations,Geneva,12October
2006
ANNEX64 Formal Opinion of Dr. Manuel Seco Reyrnofdthe 387
RoyalSpanisAcademy, 2 May2008
WITNESSSTATEMENTS
ANNEX65 ABURTOESPINOZA,William8March 2008
ANNEX 66 ACEVEDOLEDEZMA, Rigobert27 May 2008 407
ANNEX67 BORGESEQUENESB , enedictoAdam,26May2008 411
AMVEX 68 CARRI~NMCDONOUGH GTe, eralJavier Alo24oJune 417
2008
AmEX 69 CENTENOAROSTBGUI,LieutenantColonelJuan Bosco, 429
March2008
ANNEX 70 GARC~AL~PEZ,CaptainMario,9March2008 435
ANNEX71 JARQUmLOPEZ, MartinAntoni4,June2008 441ANNEX 72 LARGAESPADAPALLAVICINI,Brigadier General CBsa447
Qvidio9March2008
ANNEX 73 MEMBRE~O WAS, BrigadieGeneral Denis10 March 453
2008
ANNEX74 MOLINAPEREZ,Lieutenant Colonel WaAbraham,26 461
May2008
ANNEX75 PASTOM,Eddn Atanasio,10March 2008 493
ANNEX 76 PONCEORTIZFranklin7March2008 479
ANNEX 77 SANCHEZMBNDEC Z,lonelRicar9oMarch 2008 485
ANNEX78 TALAVEM SEES, Brigadier GeneralFranciOrlando,491
19May 2008 LISTOF WS AM) PHOTOGRAPHS
NUMBER TITLE PAGE
1 The SarapiquiRouteEnvisionedBefor1858 116
2 ApproximateTerritoryConcededby Nicaraguato Costa 120
RicaintheTreatyofLimits
3 CostaIiican TourisRoutefrom1990stoPresent 175
4 The IndioMaiz Grand Biologica2Reserve and thSan 183
JuanRiverWildlifeRefuge,producedbytheMinistryof
theEnvironmentandNatural.Resources
Habitatof the Manatee,fromJimBnez.E5eManateesof 185
5
the San Juan River and the TortzdgueroChannels:
Ecology and Consewation.Managua: ARAUCARM,
2000,p.33
6 Map showingprotected areas adjacento thSan Juan 189
River
7 NicaraguanArmy and MARENAPosts on the SanJuan 198
River
8 Alleged Locations Where CostaRican Public Vessefs 256
Navigated(shown inred)
9 Nicaraguanand CostaRicanMilitaryPosts 264
10 Roads to Costa Rican MilitaryPosts, produced by 280
EcoMapas,S.A.
MAP
1 2855 Map showing Nicaragua's claim to 121
GuanacmtdNicoya , PHOTOGRAPHS
Photograph of Wetlands of theIndio Maiz Biological 183
Reserve
Photographofa PoisonDart Frog 183
Aerialphotographof the SariJuaRiver,taken fromthe 193
Nicaraguanside
Photographs ofCostaRicanresidentsfoundtakenfreshly 193
cutplanksof woodinto CostaRicaon theSanJuan River
PhotographofaPactca 195
PhotographofaDeer 195
PhotographofaTapir 195
PhotographofaRedMacaw 195
Photographsshowingthe course ofthe SanJuan River 210
darkening after 5PM;photographs taken at5:40, 6:06
and 6:20inMarch,2008
Rejoinder of Nicaragua