INTERNATIONAL COURT OF JUSTICE
CERTAIN ACTIVITIES CARRIED OUT
BY NICARAGUA IN THE BORDER AREA
(COSTA RICA v. NICARAGUA)
WRITTEN OBSERVATIONS OF COSTA RICA
ON THE ADMISSIBILITY
OF NICARAGUA’S COUNTER-CLAIMS
30 November 2012 3
CONTENTS
I. INTRODUCTION...............................................................................................................4
II. THE FIRST COUNTER-CLAIM (CONSTRUCTION OF A ROAD) IS
INADMISSIBLE.....................................................................................................................7
A. Nicaragua cannot pursue the same claim against Costa Rica through two different
actions before the Court................................................................................................8
B. The first ‘counter-claim’ has no direct connection to the present case.......................10
(a) There is no factual connection.......................................................................10
(i) Relevant facts are different in character ...........................................11
(ii) Relevant facts occurred at a different place and time .......................11
(b) The artificiality of Nicaragua’s ‘direct legal connection’..............................14
C. Joinder of the cases is not appropriate........................................................................15
D. Conclusion..................................................................................................................16
III. THE COURT LACKS JURISDICTION OVER THE SECOND AND THIRD
COUNTER-CLAIMS............................................................................................................16
IV. THE SECOND COUNTER-CLAIM (BAY OF SAN JUAN DEL NORTE) IS
INADMISSIBLE...................................................................................................................20
A. Lack of factual connection .........................................................................................20
B. Lack of legal connection.............................................................................................21
V. THE THIRD COUNTER-CLAIM (TRANSIT VIA THE COLORADO RIVER) IS
INADMISSIBLE...................................................................................................................21
A. Lack of factual connection .........................................................................................22
B. Lack of legal connection.............................................................................................23
VI. SUBMISSION .................................................................................................................26 4
I. INTRODUCTION
1.1 In its Counter-Memorial of 6 August 2012 in the Certain Activities case, Nicaragua
purported to introduce no less than four counter -claims relating to a variety of matters. By
letter of 28 September 2012 the Registrar notified Costa Rica that its ob servations on the
admissibility of the counter-claims were invited by 30 November 2012.
1.2 The four counter-claims submitted by Nicaragua concern the following matters:
(1) The Consequences of the Construction of a Road along the San Juan River;
(2) The Consequences of the Current Non-Existence of the Bay of San Juan del
Norte;
(3) The Right of Nicaraguan Vessels to Reach the Ocean via the Colorado River;
and
1
(4) Costa Rica [sic] Violation of the Court’s Order on Provisional Measures.
1.3 Costa Rica considers that the first three counter -claims are inadmissible. All three
fail to meet the requirement of direct connection with the Claimant ’s claims in this case, as
required by Article 80, paragraph 1 of the Rules of the Court. Further, the first counter -claim
is identical to the claim advanced by Nicaragua in its application of 21 December 2011 in the
case concerning Construction of a Road by Cos ta Rica along the San Juan River and should
be rejected also for that reason . Finally, as to the second and third counter -claims, the Court
lacks jurisdiction to admit them.
1.4 Costa Rica accepts that the fourth counter-claim, related to purported breaches of the
Court’s Order indicating Provisional Measures of 8 March 2011, is admissible. It is
inappropriate to deal here with the merits of that counter -claim, or with the much more
credible claims Costa Rica has documented of Nicaraguan breaches of the Cour t’s Order: see
Costa Rica’s letters of 8 April 2011, 13 April 2011, 23 June 2011, 3 July 2012 and 21
November 2012. Nicaragua’s fourth c ounter-claim, therefore, will not be further addressed
here: the Court will be in a position to deal with both Parties’ claims of breach of the Order of
8 March 2011 at the hearing on the merits.
1.5 Article 80 of the Court’s Rules provides:
1NCM, Chapter 9. 5
1. The Court may entertain a counter -claim only if it comes within the
jurisdiction of the Court and is directly connected with the subje ct-
matter of the claim of the other party.
2. A counter-claim shall be made in the Counter -Memorial and shall
appear as part of the submissions contained therein. The right of the
other party to present its views in writing on the counter -claim, in an
additional pleading, shall be preserved, irrespective of any decision of
the Court, in accordance with Article 45, paragraph 2, of these Rules,
concerning the filing of further written pleadings.
3. Where an objection is raised concerning the application of
paragraph 1 or whenever the Court deems necessary, the Court shall
take its decision thereon after hearing the parties.
1.6 The law relating to jurisdiction and admissibility of counterclaims before the Court is
well established.
(1) The counter-claim must come within the jurisdiction of the Court, as
recognized by the parties. 2
(2) To satisfy the requirement in Article 80(1) of the Rules that the counter-claim
is ‘directly connected with the subject- matter’ of the principal claim, there
must be a direct factua l connection between the counter -claim and the
principal claim. This requirement is satisfied if the counter-claim:
(a) relates to facts of the same kind, 3and
(b) forms part of the same factual complex, in that it relates to facts that
occurred in the sa me territory during the same time period and
concerned the same events. 4
This is the reason why counter -claims raised by Belgium in the Diversion of
Waters from the Meuse case, by Peru in the Right of Asylum case, by the 6
Federal Republic of Yugoslavia (as it then was) in the Bosnian Genocide
2
Article 80(1) of the Rules; Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) , Counter-claims, Order of 17 December
1997, I.C.J. Reports 1997, p. 257, para. 31; Jurisdictional Immunities of the State (Germany v. Italy),
Counter-Claim, Order of 6 July 2010, I.C.J. Reports 2010, p. 321, para. 31.
3
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia), Counter-claims, Order of 17 December 1997, I.C.J. Reports 1997, p.
258, para. 34.
4Ibid.
5The Diversion of the Water from the Meuse , P.C.I.J. Series A/B, No. 70, Judgment of 28 June 1937, p.
28.
6Asylum Case (Colombia / Peru), Judgment of 20 November 1950, I.C.J. Reports 1950, pp. 280-281. 6
7 8
case, by the United States of America in the Oil Platforms case, by Nigeria
9
in Cameroon v. Nigeria, and two out of three Ugandan counter-claims in the
Armed Activities in the Territory of the Congo were considered admissible,
while the third one, not meeting those conditions, was declared
inadmissible. 10
(3) For the direct connection requirement to be satisfied there must also be a
sufficient legal connection between the counter -claim and the claim. 11 This
requirement will only be satisfied if the counter -claim and claim pursue the
same legal aim, e.g., the establishment of responsibility under the same
12
international instrument.
1.7 Applying these rules, these Written Observations will show why the first, second and
third counter-claims are inadmissible. It proceeds in the following order:
Section II: The first counter-claim (construction of a road) is inadmissible;
Section III: The Court lacks jurisdiction over the second and third counter-claims;
alternatively:
Section IV: The second counter -claim (Bay of San Juan del Norte) is inadmissible;
and,
Section V: The third counter-claim (transit via the Colorado River) is inadmissible.
There follow Costa Rica’s Submissions.
7 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia) , Counter-claims, Order of 17 December 1997, I.C.J. Reports 1997, p.
858, para. 34.
Oil Platforms (Islamic Republic of Iran v. United States of America), Counter -Claim, Order of 10
March 1998, I.C.J. Reports 1998, p. 205, para. 38.
9Land and Maritime Boundary between Cameroon and Nigeria, Order of 30 June 1999 , I.C.J. Reports
1099, pp. 985-986.
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Order of 29 November 2001, I.C.J. Reports 2001, pp. 678- 680, paras. 38-43.
11Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia) , Counter-claims, Order of 17 December 1997, I.C.J. Reports 1997, p.
258, para. 35; Oil Platforms (Islamic Republic of Iran v. United States of America) , Counter-Claim,
Order of 10 March 1998, I.C.J. Reports 1998, p. 205, para. 38; Land and Maritime Boundary between
Cameroon and Nigeria, Order of 30 June 1999, I.C.J. Reports 1999, p. 985.
12Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia) , Counter-claims, Order of 17 December 1997, I.C.J. Reports 1997, p.
258, para. 35. 7
II. THE FIRST COUNTER-CLAIM (CONSTRUCTION OF A ROAD) IS
INADMISSIBLE
2.1 The first counter-claim relates to the construction of a road by Costa Rica along the
San Juan River. It is presented by Nicaragua in the following way:
The impairment and possible destruction of navigation on the San Juan River
caused by the construction of a road next to its right bank by Costa Rica in
violation of its obligations stemming from the 1858 Treaty of Limits and
various treaty or customary ru13s relating to the protection of the environment
and good neighbourliness ...
2.2 In the submissions, judgment on the counter -claim is requested in the following
terms:
... Nicaragua requests a declaration by the Court that …
(3) Costa Rica bears responsibility to Nicaragua
- for the construction of a road along the San Juan de Nicaragua River
in violation of Costa Rica’s obligations stemming from the 1858
Treaty of Limits and various treaty or customary rules relating to the
protection of the environment and good neighbourliness... 14
2.3 The first counter-claim is inadmissible on the following grounds:
(1) The counter -claim is identical to the request made by Nicaragua in its
application instituting proceedings in a separate case. It is contrary to general
principle for a state to pursue the same claim through two procedural avenues
at any one time: this principle is reflected in Article IV of the Pact of Bogotá
which expressly prohibits such proceedings.
(2) There is no direct connection (‘connexité directe’), as required by Article 80,
paragraph 1, of the Rules of the Court, either:
(a) in law; or
(b) in fact.
(3) Nicaragua is effectively seeking the joinder of the two different cases
currently pending between both Parties before the Court. But joinder here is
inappropriate.
2.4 An initial obstacle to the Court’s consideration of Nicaragua’s first counter-claim of 6
August 2012 is that this counter -claim involves the same claim that Nicaragua is pursuing in
13
14NCM, para. 9.7.
NCM, p. 456. 8
its Application instituting proceedings of 21 December 2011. As a result, it is not necessary to
examine whether this counter -claim meets the requirements of j urisdiction and direct
connection as set out in Article 80, paragraph 1 of the Rules of Court. For the sake of
completeness, however, it is demonstrated that even if Nicaragua’s first counter-claim had not
been previously submitted as a claim in separate p roceedings before this Court, it should
nevertheless be rejected as not being a genuine counter -claim and not meeting the
requirement of direct connection.
A. Nicaragua cannot pursue the same claim against Costa Rica through two
different actions before the Court
2.5 The first counter-claim is identical in terms to, or plainly included in and covered by,
the claim raised in its Application instituting proceedings in the case concerning Construction
of a Road in Costa Rica along the San Juan River . The facts alleged to sustain the claims in
this latter case are explained in the Application in the following terms:
This Application is Nicaragua’s response to Costa Rica’s unilateral actions
that threaten to destroy the San Juan de Nicaragua River and its fragile
ecosystem, including the adjacent biosphere reserves and internationally -
protected wetlands that depend upon the clean and uninterrupted flow of the
River for their survival.
The most immediate threat to the River and its environment is posed by Costa
Rica’s construction of a road running parallel and in extremely close
proximity to the southern bank of the River, and extending for a distance of at
least 120 kilometres, from Los Chiles in the west to Delta in the east.15
2.6 Nicaragua’s petitum in its Application instituting new proceedings against Costa Rica
requests the Court to adjudge and declare that Costa Rica has breached:
a) Its obligation not to violate Nicaragua’s territorial integrity as
delimitated by the 1858 Treaty of Limits, the Cleveland Award of
1888 and the five Awards of the Umpire EP Alexander of 30
September 1897, 22 March 1898, 26 July 1899 and 10 March 1900.
b) Its obligation not to damage Nicaraguan territory;
c) Its obligation s under general international law and the relevant
environmental convent ions, including the Ramsar Convention on
Wetlands, the Agreement over the Border Protected Areas between
Nicaragua and Costa Rica (International System of Protected Areas
for Peace [SI -A-PAZ] Agreement), the Convention on Biological
Diversity and the Convention for the Conservation of the Biodiversity
and Protection of the Main Wild Life Sites in Central America.
15 Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) ,
Application instituting proceedings, 21 December 2011, paras. 4-5. 9
...
Finally, Nicaragua requests the Court to adjudge and declare that Costa Rica
must:
a) Cease all the constructions underway that affect or may aff ect the
rights of Nicaragua.
b) Produce and present to Nicaragua adequate environmental impact
assessment with all the details of the works. 16
2.7 It is apparent that Nicaragua is pursuing the same claim both in the new case that it
initiated before the Court on 21 December 2011 and in the first counter -claim that it raised in
its Counter-Memorial of 6 August 2012 in the present case. Indeed, the relevant paragraphs of
NCM that address the first counter -claim contain a wealth of quotations taken from
Nicaragua’s Application in the Construction of a Road case, references to the same facts and
documents, and identical claims alleging breaches by Costa Rica, particularly the ‘lack of
blueprints and Environmental Impact Assessment’, ‘lack of consultation’ and ‘damages
17
caused to Nicaraguan territory and the environment’.
2.8 It is a basic principle that two legal actions cannot be pursued simultaneously in the
same forum against the same party for the same cause of action. This principle is expressed in
the maxim ne bis in i dem, although it is usually invoked in the field of criminal law. A
broader expression of the principle, generally applicable, is electa una via, non datur recursus
ad alteram. It cannot be open to a party to request the Court to condemn the same State twice,
on the basis of the same facts and for the same alleged breaches.
2.9 Nicaragua has accepted the principle of electa una via in the Pact of Bogotá. Article
18
IV of the Pact of Bogotá contains a clear expression of that principle, stating that:
Once any pacific procedure has been initiated, whether by agreement between
the parties or in fulfillment of the present Treaty or a previous pact, no other
procedure may be commenced until that procedure is concluded’. 19
The principle is expressed in entirely general terms. It does not only apply to disputes under
the Pact of Bogotá but to ‘any pacific procedure’ (emphasis added) , whether initiated ‘by
agreement between the parties or in fulfillment of the present Treaty or a previous pact’. It
thus covers proceedings commenced under the Optional Clause as well as under the Pact of
Bogotá.
16Ibid., paras. 49-51.
17NCM, paras. 9.8-9.33.
18 Eduardo Valencia-Ospina, ‘Bogotá Pact (1948)’, in Rüdiger Wolfrum (ed), The Max Planc k
Encyclopedia of Public International Law ( 2012), vol. I, p. 974, para. 10.
19
American Treaty on Pacific Settlement (Pact of Bogotá ), 30 April 1948, 30 UNTS 83, Article IV
(emphasis added). 10
2.10 Nicaragua has clearly initiated a pacific procedure by lodging its Application in the
Construction of a Road case, and that procedure is not yet concluded. As the Court stated in
Nicaragua v. Honduras:
For the purposes of Article IV of the Pact, no forma1 act is necessary before a
pacific procedure can be said to be ‘concluded’ . The procedure in question does
not have to have failed definitively before a new procedure can be commenced. It
is sufficient if, at the date on which a new procedure is commenced, the initial
procedure has come to a standstill in such cir20mstances that there appears to be
no prospect of its being continued or resumed.
It cannot be said that there is ‘no pros pect’ of the Construction of a Road case being
continued. It is proceeding in accordance with the lengthy timetable chosen by Nicaragua.
2.11 Nicaragua filed its Application instituting proceedings in the Construction of a Road
case on 21 December 2011, when it had in hand the Memorial filed by Costa Rica in the
Certain Activities case on 5 December 2011. Thus, in full knowledge of Costa Rica’s position
in the present case, Nicaragua chose to initiate fresh proceedings before the Court concerning
the construction of a road by Costa Rica. Nicaragua had the choice either to institute new
proceedings, or, insofar as that counter -claim meets the criteria set out in article 80 of the
Rules of Court , to address the matter by submitting a counter -claim in the present case.
Nicaragua chose to pursue this claim in a separate case. It cannot now also pursue the same
claim by way of a counter-claim in the present case.
2.12 For the above reasons, Nicaragua’s first counter -claim should be dismissed as
inadmissible in limine.
B. The first ‘counter-claim’ has no direct connection to the present case
2.13 Nicaragua’s first ‘counter-claim’ concerning the construction of a road in Costa Rica
along the San Juan river fails to meet the condition of direct connection, as required by
Article 80, paragraph 1, of the Rules of Court and developed in the case law of the Court.
There is a lack of direct connection both in fact and time, as well as in law and aims.
(a) There is no factual connection
2.14 As noted above, in order to fulfil the requirement of a direct factual connection, a
counter-claim must satisfy the following cumulative conditions: (1) it must relate to facts of
the same character; (2) it must form part of the same factual complex; ( 3) it must have arisen
in or in relation to the same territor y; and, (4) it must have arisen during the same period of
20
Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility ,
Judgment, I.C.J. Reports 1988, p. 100, para. 80. 11
time. None of these conditions are met by the first Nicaraguan ‘counter-claim’.
2.15 Nicaragua explains the purported factual direct connection in the following terms:
The road building project is directly connected to the main Costa Rican claim
directed against the Nicaraguan dredging programme:
First, like the dredging programme, the construction of the road is
undertaken in the border area;
Second, the road construction project appears to be an answer by
Costa Rican authorities to the Nicaraguan dredging programme; and
Third, as demonstrated above, erosion, sediment-laden runoff, and the
dumping of trees, debris, and sediments into the San Juan as a result
of the road construction project makes the dred ging of the river even
more nece21ary and, by the same token, aggravates the present
dispute.
2.16 None of these arguments is sustainable, as is explained in the following subsections.
(i) Relevant facts are different in character
2.17 In the process of drafting the ar ticle of the Rules of the Permanent Court of
International Justice related to counter -claims, Judge Fromageot, discussing the notion of
‘direct connection’, advanced the following definition of counter -claims: ‘a claim directly
dependent on the facts of the main action’ . The main facts of the principal case brought by
Costa Rica relate to the invasion and occupation of the northern part of the Costa Rican
territory of Isla Portillos and the construction of an artificial canal by Nicaragua on that
territory. The case also relates to actions accomplished or planned by Nicaragua concerning
dredging operations along the eastern part of the San Juan river. By simple definition, the
construction of a road by Costa Rica on Costa Rican territory is a fact of a completely
different nature to that of the occupation and claim over foreign territory and the attempted
construction of a canal thereon. Likewise the dredging of a river over which the other side
enjoys navigational and other rights and has a right to informa tion and consultation with
regard to works planned to be carried out on the river.
(ii) Relevant facts occurred at a different place and time
2.18 An initial point of factual clarification is necessary. The road constructed by Costa
Rica only goes as far as the poi nt where the Colorado branches off from the San Juan river
21NCM, para. 9.75 (footnotes omitted).
22 Acts and Documents Concerning the Organization of the Court, Third Addendum to No. 2,
th
Elaboratthn of the Rules of Court of March 11 , 1936, Thirty-second Session, Fourteenth Meeting
(May 29 , 1934), P.C.I.J. Series D, p. 112. 12
(Delta Costa Rica), some 25 kilometres before Isla Portillos begins (See Sketch Map 1). In
other words, the road stops at the right bank of the Colorado River. It does not go to Isla
Portillos or to the caňo or approach the area which Nicaraguan personnel have occupied. Nor
has it any effect whatever on navigation on the San Juan.
2.19 The facts Nicaragua alleges to justify both its Application in the Construction of a
Road case and its first counter -claim in the present case are not part of the same factual
complex that led Costa Rica to institute the present proceedings, namely facts relating to
military and civilian activities undertaken by one State on the territory of another, work
related to the construction of an artificial channel, including the felling of primary forest and
the continued presence of personnel in an area now claimed by both sides, and planned
dredging activities. The facts that Nicaragua invokes in its counter -claim occurred one year
after Costa Rica filed its application. This first ‘counter -claim’ drastically differs from the
fourth one, in which there is an obvious direct connection with the facts of the case. Even if it
is legally groundless on the merits, the latter Nicaraguan coun ter-claim relates to purported
breaches by Costa Rica of the provisional measures indicated by the Court in its Order of 8
March 2011. T he aim of this fourth counter -claim is twofold: to reject the corresponding
Costa Rican claim, and to advance its own cl aim with respect to similar facts ; the sending of
personnel to the same area (the northern part of Isla Portillos) during the same period of time
as the breaches invoked by Costa Rica following the Order of the Court indicating provisional
measures. But what is present in Nicaragua’s fourth counter-claim (an activity forming part of
the same factual complex) is entirely absent from its first counter-claim.
2.20 In order to invoke a factual direct connection, Nicaragua argues that ‘the road
construction project appears to be an answer by Costa Rican authorities to the Nicaraguan
dredging programme’ and the purported ‘erosion, sediment -laden runoff, and the dumping of
trees, debris, and sediments into the San Juan as a result of the road construction project
makes the dredging of the river even more necessary and, by the same token, aggravates the
23
present dispute’ . These flawed and unsubstantiated arguments fail for the following
reasons. First, Costa Rica's reason for building the road is unrelated to the dredgi ng program.
The Respondent has not advanced any evidence in support of its assertion. The road was built
within the framework of Emergency Decree 36440 -MP, and the Emergency Decree itself is a
consequence of Nicaragua's invasion and occupation of Costa Ric a specifically. Furthermore,
the road was built to facilitate the mobilization of Costa Rican police and riparians in case of
armed conflict and due to the increased restrictions imposed by Nicaragua on navigation on
the San Juan river; it is not a response or a measure against the dredging program.
23NCM, para. 9.75. 13
2.21 Second, the fact that Nicaragua is carrying out a dredging programme on the San Juan
river is not the basis of any of Costa Rica’s claims in this case. As Costa Rica has stated, it
24
does not oppose the dredging of the river as such . What Costa Rica has invoked was the
breach by Nicaragua of the relevant requirements of the Treaty of Limits and the Cleveland
25
Award with regard to river works that may affect Costa Rica. The relevant facts are not the
dredging prog ramme as such , but the acts pleaded by Costa Rica as breaches of these
requirements.
2.22 As to the territorial connection, it is not enough, as Nicaragua does, to state that facts
occurred in the ‘border area’. The situation is very different from that of the Cameroon v.
Nigeria case. The fact that the Court stated that the facts invoked to sustain the counter-claims
26
‘are alleged to have occurred along the frontier between the two States’ in no way can be
compared with the situation of the first Nicaraguan co unter-claim. In the Cameroon v.
Nigeria case what was at stake was a boundary dispute existing all along the frontier between
the two States, coupled with a request for reparation by the Applicant. In the instant case, on
the contrary, the facts invoked in the Nicaraguan Application initiating separate proceedings,
as well as those invoked by way of the first counter -claim to the present case, relate to acts
taking place in different areas of the frontier region (see Sketch Map 1). Nicaragua’s actions
that form the object of the present case are located in the northern part of Isla Portillos (Costa
Rica) and in the eastern sector of the San Juan R iver, whose waters are on Nicaraguan
territory. As can be seen in Sketch Map 1, t he dredging operations relevant to the present
27
case, as indicated in Nicaragua’s Counter-Memorial, are taking place at an area that extends
from the junction of the Colorado and the San Juan rivers to the mouth of the latter river. The
road being constructed by Costa Rica starts further West in Los Chiles (at a location where
the boundary between the two countries does not follow the San Juan river) and stops
precisely at the location of Delta Costa Rica, at the point where the Colorado branches off
from the San Juan river. The road doe s not cross the Colorado nor enter the wetland area
occupied by Nicaragua (and there are no plans that it should do so). The inescapable
consequence is that the facts of the present case, compared with the facts in the new
proceedings brought by Nicaragua on December 2011 and repeated here as a counter -claim,
occurred in well-defined and clearly different geographic areas.
24
Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) , 11
January 2011, CR 2011/1, p. 70, paras. 49-50 (Crawford); CRM, para. 5.57.
25 Certain Activities carried out by Nicaragua in the B order Area (Costa Rica v. Nicaragua) ,
Application instituting proceedings, 18 November 2010, para. 39(e) and (f); CRM, paras. 5.17- 5.123.
26 Land and Maritime Boundary between Cameroon and Nigeria, Order of 30 June 1999, I.C.J.
27ports 1999, pp. 985-986.
NCM, Figure 5.3, p. 225. 14
2.23 Thus there is no direct factual connection between Nicaragua’s first counter-claim
and the facts of the principal case brought by Costa Rica : the relevant facts are entirely
differentand occurred in different places and at different times.
(b) The artificiality of Nicaragua’s ‘direct legal connection’
2.24 Nicaragua makes no effort to disguise the fact that its first counter -claim mirrors the
Construction of a Road case. In both proceedings Nicaragua advances the same international
agreements that Costa Rica invoked in the present case. 28
2.25 However, it is not enough artificially to mention the same international instruments
on which the Applicant bases its claims to establish a direct legal connection with the claims
of that Party. In the present case, Costa Rica’s claims are based: first , on the breach by
Nicaragua of the obligation to respect the boundary established by Article II of the Treaty of
Limits of 1858 and by the first Alexander Award through the occupation, construction of an
artificial channel and its late claim of sovereignty over Costa Rican territory located at the
southern or eastern side of that boundary; 29second, on the breach of paragraph 6 of the Third
article of the Cleveland Award relating to the obligation by Nicaragua not to execute works
that ‘result in the occupation or flooding or damage of Costa Rica territory, or in the
destruction or serious impairment of the navigation of the said River or any of its branches at
30
any point where Costa Rica is entitled to navigate the same.’ Costa Rica also invoked other
international instruments that are not even invoked by Nicaragua in its new claim, either in its
Application in the Construction of a Road case or in its Counter-Memorial in the present one.
These include notably the Charter of the United Nations and the Charter of the Organi zation
31
of American States.
2.26 The new claim brought twice by Nicaragua does not concern the Treat y of Limits of
32
1858, which, in the words of Nicaragua, constitutes the lex specialis and ‘is the main
33
international instrument applicable in the present case’ . Even assuming that the alleged
Costa Rican construction of the r oad might be an international wrongful act ( quod non), it
cannot be invoked as a breach of the Treaty of Limits. As Nicaragua recognises, the road is
being constructed entirely on Costa Rican territory. Even if its construction could cause harm
to Nicaraguan territory ( quod non), neit her the existence of the boundary as depicted by
28 Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) ,
Application instituting proceedings, 21 December 2011, paras. 47- 48; NCM, para. 9.76.
29
Certain Activities carried out by Nicaragua in the B order Area (Costa Rica v. Nicaragua) ,
30plication instituting proceedings, 18 November 2010, para. 39(a); CRM, Chapter IV.
Cleveland Award, CRM, Annex 7.
31CRM, para. 1.1.
32NCM, paras. 3.51, 4.36, 5.173.
33NCM, para. 9.79. 15
Article II of the Treaty of Limits nor any other right that Nicaragua could claim on the basis
of that Treaty, let alone the Cleveland Award or the Alexander Awards, are at stake. It is true
that the Court c annot at this stage, facing a claim of this nature, determine whether it is
sustainable on the merits. But what the Court can determine at this incidental phase is that
there is no direct legal connection between a claim of a breach of an internationally agreed
boundary, the territorial integrity of a State, a right of consultation and the obligation not to
cause harm to the territory of the other State explicitly arising from the Treaty of Limits and
its interpretation by the Cleveland Award on the one ha nd, and the claim of an alleged
violation of the same treaty by the construction of a road by Costa Rica on Costa Rican
territory, on the other hand.
2.27 Furthermore, Nicaragua itself recognises that neither the Treaty of Limits nor any
other specific treaty governs its new claim. While invoking the alleged lack of blueprints and
environmental impact assessment for the construction of the road in Costa Rica, NCM states:
‘Absent a treaty constituting a lex specialis, general international law applies’. 34
2.28 Finally, the construction of the r oad cannot be considered as a measure aggravating
the dispute before the Court, putting to one side that it is an activity lawfully undertaken by
Costa Rica on its own territory, for the simple reason that this construction is c onsidered by
Nicaragua to constitute a separate dispute in a separate case.
2.29 The considerations above also demonstrate that the Parties are pursuing different
legal aims through their claims. Nicaragua’s purported first ‘counter -claim’ lacks both a
direct factual and legal connection with the claims in the present case.
C. Joinder of the cases is not appropriate
2.30 Conscious that it cannot bring the same claim twice, Nicaragua is in effect seeking
the joinder of the two cases. In Nicaragua’s own words:
Nicaragua considers that with the filing of its Counter Claims in the present
case, including its claim based on the harm caused to the San Juan de
Nicaragua River caused by the construction of this road and particularly, on
its navigability, a discussion of the joinder of the cases becomes more
opportune. This is a question that will have to be decided by the Court. 35
2.31 In the present circumstances, it would be neither timely nor equitable either to admit
this ‘counter-claim’ or to join the two cases. On the contrary, i t would run against the sound
administration of justice to do so.
34
35NCM, para. 9.14.
NCM, para. 1.27. 16
2.32 The two cases ( Certain Activities carried out by Nicaragua in the Border Area and
Construction of a Road in Costa Rica along the San Juan River ) relate to different subject -
matters. The fir st case essentially concerns the exercise of territorial sovereignty. Until this
case is resolved by the Court, Costa Rica is prevented from exercising sovereignty over part
of its territory. There is urgency demanding the swift determination of this dispute.
2.33 The two cases each have their own procedural timetable. The Court took notice that
the parties agree that no second round of written pleadings is needed in the present case. The
other case awaits the filing by Nicaragua of its Memorial in 19 December 2012. Nicaragua
requested a time-limit of one year, and as a corollary Costa Rica will have a year to file its
Counter-Memorial. Procedural economy dictates that these two cases be kept separate, not
joined. Coherence does not require the joinder of cases either: no finding of fact or law in the
one case is necessary for a determination of the other . Finally, the composition of the Court
is different in the two cases.
2.34 For these reasons, to join the two different cases would constitute a serious prejudice
to the right of Costa Rica to seek and obtain a decision from the Court with regard to the case
it initiated in November 2010, the written phase of which is (unless the counterclaims are
allowed) in practice closed.
D. Conclusion
2.35 To sum up, the first ‘count er-claim’ by Nicaragua must be declared inadmissible
because:
(1) It is in contradiction with the principle electa una via, as articulated in Article
IV of the Pact of Bogotá, since it is identical to the claims raised by
Nicaragua in a separate case;
(2) It does not meet the requirement of direct connection, in fact, in space, in
time, in law and in the aims that it pursues.
III. THE COURT LACKS JURISDICTION OVER THE SECOND AND THIRD
COUNTER-CLAIMS
3.1 The first test of admissibility necessarily requires the Court to determine if it has
jurisdiction to ascertain the merits of a counter -claim. In its Counter -Memorial, Nicaragua
stated that the Court’s jurisdiction to admit its counter-claims is based on Article XXXI of the
American Treaty on Pacific Settlement signed i n Bogotá on 30 April 1948 (the Pact of 17
Bogotá) 36 and on the Declaration of Acceptance made by both parties pursuant to
Article 36 (2) of the Statute of the Court. 37
3.2 While Nicaragua has accepted the jurisdiction of the Court to decide the merits of the
case submitted by Costa Rica, Nicaragua has not shown how its counter -claims meet the
criteria set out in the Pact of Bogotá, and/or Article 36 (2) of the Statute of the Court for their
admissibility. An application of the criteria set out in these instruments p recludes examination
by the Court of the second and third of Nicaragua’s counter-claims as a matter of jurisdiction.
3.3 Regarding Article 36 (2) of the Statute of the Court, it is recalled that on 23 October
2001 Nicaragua submitted to the Secretary -General of the United Nations a reservation to its
declaration of acceptance of the Court’s Jurisdiction in the following terms:
Nicaragua will not accept the jurisdiction or competence of the International
Court of Justice in relation to any matter or claim based on interpretations of
treaties or arbitral awards that were signed and ratified or made, respectively,
prior to 31 December 1901. 38
3.4 While Nicaragua may accept the jurisdiction of the Court as a respondent on a case
by case basis, Nicaragua is barred from submitting claims against another party relying on
treaties or arbitral awards signed and ratified or made prior to 31 December 1901 whilst its
reservation remains in force. The effect of Nicaragua’s reservation is twofold: it applies
equally to itself as it does to any other party to the Statute of the Court. Costa Rica can, a nd it
does hereby, invoke the reservation made by Nicaragua by way of reciprocity. As the Court
stated, ‘Reciprocity in the case of Declarations accepting the compulsory jurisdiction of the
Court enables a Party to invoke a reservation to that acceptance which it has not expressed in
its own Declaration but which the other Party has expressed in its Declaration... Reciprocity
enables the State which has made the wider acceptance of the jurisdiction of the Court to rely
39
upon the reservations to the acceptance laid down by the other Party’.
3.5 The result is Nicaragua’s inability to request adjudication by the Court on matters that
are covered by its own reservation to the Court’s jurisdiction.
3.6 In relation to the Pact of Bogotá, a similar temporal limitation to the Court’s
jurisdiction is contained in Article VI, which reads:
36
NCM, para. 9.4.
37NCM, para. 9.5.
38 Nicaragua’s reservation to the Jurisdiction of the International Court of Justice, available at:
http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3&code=NI .
39Interhandel Case (Switzerland v. United States of America), Judgment of 21 March 1959, I.C.J.
Reports 1959, p. 23. 18
ARTICLE VI: The aforesaid procedures, furthermore, may not be applied to
matters already settled by arrangement between the parties, or by arbitral
award or by decision of an international court, or which are governed by
agreements or treaties in force on the date of the conclusion of the present
Treaty.40
3.7 The procedures to which Article VI refers include the Judicial Proc edure contained in
Chapter IV of the Pact of Bogot á. Therefore, in accordance with the Pact of Bogotá, any
matter already settled by arrangement, by arbitral award or judgment of an international court,
or governed by treaties in force before 30 April 1948 excludes recourse to judicial procedure,
in this case, recourse to the International Court of Justice.
3.8 Consequently, by virtue of both Nicaragua’s own exclusion from the Court’s
jurisdiction of ‘any matter or claim based on interpretations or treaties or arbitral awards that
were signed and ratified or made, respectively, prior to 31 December 1901’, as well as by the
effect of Article VI of the Pact of Bogotá, which excludes ‘matters already settled by
arrangement between the parties, or by arbitral award or by decision of an international court,
or which are governed by agreements or treaties in force on the date of the conclusion of the
present Treaty’ ( 30 April 1948), the second and third counter -claims do not fall within the
Court’s jurisdiction.
3.9 In relation to the second c ounter-claim, that is, the situation of the Bay of San Juan
del Norte and its shared sovereignty by both Costa Rica and Nicaragua, this is a matter that
has been settled by article IV of the 15 April 1858 Treaty of Limits, which reads as follows:
The Bay of San Juan del Norte, as well as the Salinas Bay, shall be common to
both Republics, and, therefore, both the advantages of their use and the
obligation to contribute to their defence shall also be common …
3.10 Neither the 1888 Cleveland A ward nor the Alexander Awards (1897- 1900) decided
the rights of the parties regarding the Bay or in any way interpreted or limited the right of the
parties to the Bay. Thus, the shared ownership of the Bay is a matter which is exclusively
governed by article IV of the 1858 Treaty of Limits.
3.11 Article VI of the Pact of Bogotá determines that the procedures set out in the Pact,
including the Judicial Procedure, cannot apply to matters that are governed by agreements or
treaties in force on the date of the co nclusion of the Pact. A ccordingly Nicaragua is barred
from submitting its second counter-claim regarding the Bay of San Juan del Norte as a result
of the temporal limitation contained in the Pact of Bogotá. The 1858 Treaty of Limits was in
force for approximately 90 years before the Pact of Bogotá was concluded.
40American Treaty on Pacific Settlement (Pact of Bogotá), 30 April 1948, 30 UNTS 83, Article VI. 19
3.12 Even if the 1888 Cleveland Award and/or the Alexander Awards had contained
specific provisions regarding the legal situation of the Bay of San Juan del Norte, the same
temporal limitation establish ed by the Pact of Bogotá applies to both awards. In fact,
however, none of these instruments refer to issues regarding the common ownership of the
Bay of San Juan del Norte.
3.13 This matter would also not fall within the Court’s jurisdiction by virtue of
Nicaragua’s reservation to its declaration of acceptance of the Court’s jurisdiction based on
Article 36 (2) of the Statute of the Court. Evidently, the 1858 Treaty of Limits was concluded
prior to 31 December 1901 (the date stipulated in Nicaragua’s reservatio n) and, therefore, the
Court does not have jurisdiction to hear matters contained in said instrument relied upon
Nicaragua, or any other instrument and award concluded or made prior to that date.
3.14 The third counter -claim, relating to the purported right of Nicaraguan vessels to
access the ocean via the Colorado River, faces similar difficulties to those discussed above.
Nicaragua attempts to justify the admissibility of this counter -claim on the argument that the
1858 Treaty of Limits governs the subject mat ter of the claim. 41 Nicaragua quotes Article V
of the 1858 Treaty in support of this claim:
As long as Nicaragua does not recover the full possession of all her rights in
the port of San Juan del Norte, the use and possession of Punta de Castilla
shall be common and equal both for Nicaragua and Costa Rica; and in the
meantime, and as long as this communi42 lasts, the boundary shall be the
whole course of the Colorado river.
3.15 Nicaragua bases the Court’s jurisdiction to entertain this counter -claim on the 1858
Treaty of Limits. However, as has been observed, Nicaragua’s reservation to its declaration of
acceptance of the Court’s Jurisdiction based on Article 36 (2) of the Statute of the Court, on
the one hand, and the temporal effect of Article VI of the Pact of Bogotá, on the other hand,
mean that Nicaragua’s third counter -claim does not fall within the scope of the Court’s
jurisdiction. The same conclusion concerning lack of jurisdiction is reached even if it was
presumed that 1888 Cleveland Award addressed the issue raised by Nicaragua in its third
counter-claim.
3.16 Consequently, Nicaragua’s second and third counter -claims fail to meet the
jurisdictional requirements set out in Article 80 of the Rules of Court.
41
42See NCM, para. 9.43.
Ibid. 20
IV. THE SECOND COUNTER-CLAIM (BAY OF SAN JUAN DEL NORTE) IS
INADMISSIBLE
4.1 Nicaragua seeks to bring a counter -claim alleging that the Bay of San Juan del Norte
no longer exists. 43 This counter-claim is unrelated in fact and in law to the claims made in
Costa Rica’s application. In particular, in the Certain Activities case Costa Rica makes no
claim to the Bay and indeed does not refer to the Bay in the operative part of its submissions.
On this basis, Nicaragua cannot show that its fresh claim to exclusive ownership of the Bay
bears any relation to Costa Rica’s principal claim.
A. Lack of factual connection
4.2 Nicaragua’s second counter-claim and Costa Rica’s claims do not form part of the
same factual complex.
4.3 First, they concern geographically distinct areas. Costa Rica’s claims are concerned
44
with Isla Portillos, located on the eastern side of the San Juan River, and with a limited
section of the River ; Costa Rica’s claim concerning the breach of its sovereignty relates to
Nicaragua’s actions in Isla Portillos; Costa Rica’s claim concerning the breach of the
environmental protection regime relates to Nicaragua’s actions in Isla Portillos . It also
concerns the dredging program, with respect to which Nicaragua failed to consult with Costa
Rica. In contrast, Nicaragua’s second counter-claim relates to the Bay of San J uan del Norte,
located on the western side of the San Juan River. 45It is not correct to say, as Nicaragua does,
that Costa Rica’s case concerns the ‘question of sovereignty over territory in the general area
of the mouth of the San Juan River’. The statement of the Court relied on by Nicaragua, that
‘the rights at issue ... derive from the sovereignty claimed by the Parties over the same
territory’, does not relate to the Bay of San Juan del Norte. The statement was made by the
Court in its provisional me asures order and it clearly relates to the northern part of Isla
Portillos.48
4.4 Secondly, Nicaragua’s second counter-claim and Costa Rica’s claims are not
temporally related. Costa Rica’s claims concern events which occurred from 2010. In
contrast, Nicaragua’s second counter-claim concerns events which it claims occurred in the
43NCM, para. 1.29.
44As shown, e.g., in Sketch Map 1.3: CRM, p. 18.
45
46As shown, e.g., in Sketch Map 1.3: CRM, p. 18 (labelled ‘Bahía San Juan del Norte’).
47NCM, para. 1.29 (emphasis added).
NCM, para. 9.80, citing Certain Activities carried out by Nicaragua in the Border Area (Costa Rica
v. Nicaragua), Request for the Indication of Provisional Measures, Order of 8 March 2011, para. 56.
48Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Request
for the Indication of Provisional Measures, Order of 8 March 2011, paras. 55-56. 21
19 century. Nicaragua alleges that the Bay of San Juan del Norte had become a lagoon
before the beginning of the 20 century. Therefore, this counter-claim is inadmissible.
B. Lack of legal connection
4.5 Despite Nicaragua’s attempt to link its second counter-claim to Costa Rica’s case on
50
the basis that the latter ‘involves a question of sovereignty’, the two are not legally related.
4.6 First, Costa Rica’s claim concerning breach of sovereig nty and Nicaragua’s counter-
claim do not concern reciprocal obligations, nor do they pursue the same legal aim. Costa
Rica’s claim is that Nicaragua has breached its sovereignty by actions it carried out in Isla
Portillos; Nicaragua’s counter -claim is that it has exclusive sovereignty over an entirely
separate area on the basis that that area has become sedimented.
4.7 Secondly, the applicable law of Costa Rica’s claim and Nicaragua’s counter -claim are
different. Nicaragua’s counter-claim relates primarily to the interpretation of Article IV of the
51
1858 Treaty of Limits , as it believes that Article IV not longer governs the shared
community over the Bay, interpreting that the Bay belongs to Nicaragua because of
sedimentation. Costa Rica’s claim does not deal w ith the interpretation of Article IV at all.
Costa Rica claims that Nicaragua has breached its sovereignty over the territory appertaining
to it as determined by Article II of the Treaty of Limits, and as interpreted by the 1888
Cleveland Award and the Ale xander Awards, only and inasmuch as the territory of Isla
Portillos is concerned. 52
4.8 Therefore, as there is no direct factual or direct legal connection between the claims,
the second Nicaraguan counter-claim is inadmissible.
V. THE THIRD COUNTER-CLAIM (TRANSIT VIA THE COLORADO RIVER) IS
INADMISSIBLE
5.1 Even if the Court were to find that it does have jurisdiction to entertain this counter -
53
claim, Nicaragua has failed to show that it meets the other criteria for its admissibility set
out in Article 80 of the Rules of Court. At the outset, the counter-claim is not a valid counter-
claim to a connected Costa Rican claim.
5.2 The third Nicaraguan counter-claim is not ‘directly connected’ with the subject matter
of Costa Rica’s claims. Indeed it bears no relation whatever to any of the submissions
49
NCM, paras. 6.147-6.151.
50NCM, para. 1.29.
51NCM, para. 6.141.
52CRM, Chapter IV.
53See supra Section III. 22
presented by Costa Rica in its Application and Memorial. In other words, Nicaragua has not
identified the ‘direct connection’ between the purported ‘right of Nicaraguan vessels to reach
the ocean via the Colorado River’, and a ny corresponding claim by Costa Rica. Obviously
such a connection cannot be found because it is not, not even indirectly, a subject matter of
the dispute at hand. In fact, Nicaragua cannot refer to a single paragraph in Costa Rica’s
Memorial that bears an y connection to an alleged Nicaraguan right of navigation on the
Colorado River.
5.3 The direct connection outlined in article 80 of the Rules of Court, as the Court has
54
observed, means that the counter-claim must ‘pursue the same legal aim’. The legal aim in
this case is a determination of the legality or not of the activities carried out by Nicaragua in
the border zone, which Costa Rica claims amount to serious breaches of Costa Rica’s right to
territorial sovereignty and integrity, and which have also resulted in breaches of certain
obligations under the Treaty of Limits of 1858 and its interpretation by the Cleveland Award
55
as well as rules related to the protection of the environment. This case does not deal at all
with, and is not even remotely related to, navigational rights on the Colorado River.
A. Lack of factual connection
5.4 The facts presented by Nicaragua in support of its third counter -claim do not
correspond to the facts relating to any of the claims made by Costa Rica, but are entirely
independent. They in no way correspond to the samefactual complex.
5.5 To support its third counter-claim, Nicaragua argues the following:
(1) ‘[A]s a result of Costa Rica’s activities, Nicaraguan boats and ships cannot
navigate on the San Juan River to the sea because the outlet of the San Juan
to the sea is blocked for much of the year, and is, in any case, navigable only
by small craft.’56
(2) ‘In spite of this, Costa Rica opposes Nicaragua’s dredging the lower reach of
the San Juan.’ 57
(3) ‘Moreover, Costa Rica has put in place physical obstacles across the entrance
to the Colorado to prevent Nicaraguan vessels from reaching the sea by this
route or navigating on the river at all, and enforces this blockade with armed
patrol boats.’58
5.6 These statements of fact made by Nicaragua are either untrue or irrelevant. But true
54See NCM, para. 9.73.
55See CRM, para. 1.6.
56NCM, para. 9.42.
57Ibid.
58
Ibid. 23
or not, they bear no connection to the subject matter of Costa Rica’s claims. Th e case Dispute
Concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua), as its name indicates , deals with activities carried out in the border area, i.e. the
occupation of Costa Rican territory, the construction of an artificial canal and the felling of
primary forest therein, and the planning and partial execution of dredging works that could
endanger Costa Rican territory, without consultation with Costa Rica. The above- mentioned
‘facts’ presented by Nicaragua, even if they were true (quod non), would not have any direct
connection with the facts of this case. They derive from its desire to fabri cate a factual
59
complex intended to distort and complicate the case actually brought.
5.7 Even if Nicaragua’s statement of the facts was plausible, the y would not have any
relation to the substance of the case or to Costa Rica’s claims.
60
5.8 Even if the character ization of the ‘scope of the dispute’ presented in Nicaragua’s
Counter-Memorial were to be accepted at face value – quod non – Nicaragua did not attempt
to portray the scope of the dispute as one dealing with facts related to the Colorado River, or
navigational rights on that River, or purported activities of Costa Rica on that River. There is
no connection, not even an indirect connection, between the facts of the dispute and the facts
presented by Nicaragua to support the admissibility of its third coun ter-claim. Consequently,
Nicaragua’s third counter-claim must be declared inadmissible.
B. Lack of legal connection
5.9 Nicaragua also fails to establish a direct connection between the applicable law of the
case and the law it invokes to support its third counter-claim.
5.10 Nicaragua states that
[t]he third Nicaraguan claim relates to its right of navigation on the Colorado
River, whilst it does not have the possibility of doing so down the San Juan
River proper. This question is based squarely on the 1858 Treaty.
Furthermore, the issue is inherently tied to the imperative need (and exclusive
right of Nicaragua) to dredge the San Juan River on the basis of the
stipulations of the 1858 Treaty. Costa Rica is precisely contesting
Nicaragua’s rights to dredge the River and at the same time denying
Nicaragua’s use of the waters of the Colorado for accessing the Atlantic
Ocean (Caribbean Sea). 61
59Although – if the counterclaims were admissible – the proof of facts alleged in their support would
be a matter for the merits, Nicaragua can hardly allege itself into admissibility by making statements
60t only unfounded but in some cases on their face incredible.
61NCM, para. 1.9.
NCM, para. 9.82. 24
5.11 It should be observed that Costa Rica cannot be required to deny a fabricated right, or
to make a claim about one which was formall y introduced by Nicaragua in its Counter -
Memorial for the first time.
5.12 According to Nicaragua, it allegedly has navigational rights on the Colorado River on
62
the basis of the 1858 Treaty . This assertion is entirely baseless. There is nothing in the
Treaty to support such a claim. It is equally groundless to assert that its dredging activities on
the San Juan constitute a valid reason to justify asking for navigational rights on the Colorado
for the first time.
5.13 There is nothing in the 1858 Treaty that can be construed as giving Nicaragua
navigational rights on any Costa Rican river, including the Colorado. On the contrary, Article
V of the Treaty, upon which Nicaragua bases its novel claim, does not grant navigational
rights to it at all. It does not even refer to navigation on the Colorado. Article V reads as
follows:
As long as Nicaragua does not recover the full possession of all her rights in
the port of San Juan del Norte, the use and possession of Punta de Castilla
shall be common and equal both for N icaragua and Costa Rica; and in the
meantime, and as long as this community lasts, the boundary shall be the
whole course of the Colorado river.
5.14 This article clearly stipulated the temporary shared use and possession of Punta
Castilla, and temporarily designated the Colorado river as a boundary, only and inasmuch as
Nicaragua did not recover full possession over the Port of San Juan del Norte since that
portion of territory was at that time under the control of the British Crown. Article V of the
Treaty of Limits established clearly that the Colorado River would serve as boundary only as
long as that situation lasted. The community over Punta Castilla ended when Nicaragua
recovered the full possession of the Port of San Juan del Norte in 1860 . At that tim e, the
Colorado River ceased to be the boundary, and the boundary became the line agreed to in
Article II of the 1858 Treaty of Limits, i.e. the right margin of the San Juan River.
5.15 In other words, when the possession over the Port of San Juan del Norte re verted to
Nicaragua – by virtue of the ‘Treaty Between Great Britain and Nicaragua Relative to the
Mosquito Indians and the Rights and Claims of British Subjects’, 63signed at Managua on 28
January 1860 – Costa Rica’s temporary undertaking (the sharing of P unta Castilla and
allowing the Colorado River to serve as the boundary) ended.
5.16 Article V of the 1858 Treaty referred to Nicaragua’s lack of possession of the Port of
62
Ibid.
6328 January 1860, 121 CTS 317. 25
San Juan due to its control by another power. To portray this historical fact as a differ ent
concept, i.e. a ‘lack of possession’ of the River due to sedimentation of the lower San Juan,
falsifies the object and purpose of Article V, which was concerned with ‘possession’ of a
Port, not a River, and distorts the meaning of the concept of “possession” itself.
5.17 The 1858 Treaty does not establish navigational rights in favour of Nicaragua on the
Colorado, nor does it state that the boundary will be the Colorado in the event that Nicaragua
subsequently loses ‘possession’ or use of the Port of San Ju an del Norte. Any transitory
Nicaraguan rights by virtue of article V were limited by the unique circumstance that barred
Nicaragua from exercising full possession of the Port of San Juan del Norte at the time of the
conclusion of the Treaty of Limits. Once that tempor ary circumstance ended and Nicaragua
recovered the possession of the Port, as it in fact did, that part of the Treatywas duly fulfilled,
and Costa Rica ceased to have an obligation to allow the Colorado to serve as a temporary
boundary, much less to recognize Nicaragua’s navigation on the Colorado. It should be said
that Nicaragua has never claimed to have that right at any time since 1860.
5.18 It is an uncontroversial fact, as was clearly recalled by both parties and the Court in
Navigational and Related Rights (Costa Rica v. Nicaragua) , that the boundary between the
countries is the Costa Rican bank of the San Juan River in the relevant area.
5.19 Furthermore, Costa Rica has not, at any point in the present case, relied upon Article
V of the Treaty of Limits. Costa Rica claims that Nicaragua is in breach of A rticle II of the
Treaty, inasmuch as it has violated the territorial integrity of Costa Rica as set out in A rticle
II, which evidently has no connection with Article V of the Treaty.
5.20 Not only is there no direct connection between the applicable law of the case and the
law Nicaragua has invoked to support its third counter -claim, there is no ‘law’ whatsoever to
support that counter-claim. In particular there is no connection whatever either in the 1858
Treaty or the Cleveland Award between the question of dredging the San Juan and navigation
on the Colorado. Paragraph 6 of the Third Article of the Cleveland Award gives Nicaragua a
qualified right to engage in works of improvement on the River. Paragraph 9 of the Third
Article of the Award gives Costa Rica the right to “deny to the Republic of Nicaragua the
right of deviating the waters of the River San Juan in case such deviation will result in the
destruction or serious impairment of the navigation of the said River or any of its branches at
any point where Costa Rica is entitled to navigate the same”. These provisions are unrelated
to the question of control over the Colorado, as to which paragraph 7 of the Third Article of
the Award is categorical: 26
The branch of the River San Juan known as the Colorado River must not be
considered as the boundary between the Republics of Costa Rica and Nicaragua in
any part of its course.
This is unqualified and unconditional.
5.21 In short, as a matter both of tr eaty law and general international law the two things –
sedimentation of the San Juan and rights of navigation on the Colorado – are wholly
unrelated. Consequently Nicaragua’s third counter-claim must be declared inadmissible.
VI. SUBMISSION
For all these reasons, Costa Rica respectfully requests the Court to determine that Nicaragua’s
counter-claims 1, 2 and, 3 as presented in its Counter-Memorial, are inadmissible in these
proceedings.
Co-Agent of Costa Rica
The Hague
The Netherlands
30 November 201227
Written observations of Costa Rica on the admissibility of Nicaragua's counter-claims