Written replies of Nicaragua to the questions put to it by Judges Simma, Bennouna and Greenwood

Reply of the Republic ofNicaragua to the questions put by Judges Simma, Bennouna

and Greenwood at the end ofhearing on provisional measures requested by Costa Rica

in the case concerning Certain Activities carried out by Nicaragua in the Border Area

(Costa Rica v. Nicaragua)

Judge SIMMA:

1. Before the hearing of 11 January 2011, did Nicaragua ever make, or attempt to

make, Costa Rica aware of its claim according to whicb the course of the
boundary does not follow that documented on all existing- mcluding Nicaraguan

- maps, but "reaches the river proper by the frrst channel met" - that is the First
Alexander Award of 1897 - this clause being interpreted as referrmg to the

"Caiio Harbour Head"?

On 26 November 2010, Nicaragua published a white book that explains among other

things the legal reasoning ofNicaragua's claim to the area in dispute. This reasoning is
totally in harmony with the statements made during the hearings. So at least from that

date Costa Rica and the whole international community were aware of the basis of the
claims of Nicaragua. We accompany the white book to our answer with the English
1
translation•

This had been also spelled out during the very frrst session of the Organization of
American States that dealt with this question on 3 November 2010.

Before the hearings and for many years Costa Rica was aware that the border had not
been settled and that Nicaragua was interested in doing so. This subject was addressed

at the meetings of the bilateral Commission dating back to 1994 and the last meeting
in which this subject was raised was in October 2006. That is why ali Nicaraguan

maps had the legend that it had not been verified on the ground. In this respect Costa
Rica presented a Nicaraguan map without this indication. This was done with the full

knowledge that it was not a map for international borders but one referring to the

1See Annexes to this answer, Document 1. administrative divisions inside Nicaragua which have been revised or checked by the

territorial Institute (INETER). Thus the map produced by Costa Rica states that it
refers to the "Political-Administrative division" of the "Department of Rio San

Juan".In this regard, attached is the map filed by Costa Rica together with a similar
map of a region inside centralNicaragua, and hence without international borders, that
2
has the same legend •

The Agent recalled that the Counter Memorial of Nicaragua in the previous case,
Dispute regarding navigational and related rights (Costa Rica v. Nicaragua), had a

footnote that reserved Nicaragua's rights on all questions relating to the mouth of the
River 3 ,and that this was reiterated in the oral hearings in that case (2009), in which

the Agent made a general reservation on ail questions relating to the Bay of San Juan
(located in the area at the mouth of the River 4). The Agent restated during the 13

January 2011 oral hearings:

"Another very important reservation on questions relating to sovereignty at the mouth
of the river was made at the oral hearings of that case. On that occasion, as Agent of

Nicaragua, I stated:

"Other very importantissues stemming from the 1858Treaty are still in dispute
between the Parties and involve, for example, the situations of the Bays of San

Juan and Salinas. Since assertions have been made on these questions during
the present hearings,Nicaragua leaves on record that it reserves its rights on ail

questions relatingto these issues"" 5.

Furthermore, it is necessary to point out that not only Nicaragua characterized the

exact location of the border as uncertain. In the map filed by Nicaragua and presented
by Prof. McCaffrey at the hearing of 13 January 2011, and which is annexed with an

enlargement at the mouth of the River, it can clearly be appreciated that that in 1971,
date of the map, Costa Rica itself considered that the border followed a path quite
6
similar to that of the frrst cafio Other maps in the Judges' folders of 13 January 2011
also show the disputed area as being located in Nicaragua 7• And these are only

examples, as Prof. McCaffreynoted. Not all maps are the same.

2. Considering the physical changes in the area of the delta of the San Juan River
already known at the time of the Cleveland and Alexander awards, why has

Nicaragua, within the last century or so, never made an attempt to negotiate a
new course of the boundary, or at least to change its maps?

2 See Annexes Map 1 and 2.
3 NCM, Vol. I, p. 9, fu. 14.
4
5 CR 2009/4, p. 17, para. 35 (Argüello).
6 CR 2011/4, p. 35, para. 6 (Argüello).
7 See Annexes, Map 3.
See Annexes, Map 4, 5 and 6. And see also Annexes Maps 7-13. Nicaragua considers that there was no need to negotiate a new course of the boundary

since this is clearly spelled out in the Alexander Awards. On the other hand,
Nicaragua did not consider it useful to change the maps without verifying them on the

ground. That is why it insisted on this point in the meetings of the Bilateral
Commission.

There had been no economie activity of any importance in this area that would create
an interest or an urgency to determine the border on the ground. This only arose when

the dredging project began. Survey is an expensive exercise for a country of very
limited economie resources such as Nicaragua. Besides, Nicaragua felt itself in full

possession of the area, in which it consistently exercised law enforcement and other
activities that were noted during the hearings and will be more fully addressed during

the merits phase of the case.

8
As was pointed out at the hearings on 13 January 2011 ,a similar situation had been in
place in the northem border with Honduras. It was not until Nicaragua began the claim

for a maritime delimitation that it was discovered that the geographie coordinates that
had determined the starting point in 1962 were in 2000 located not at the mouth of the

river but 1.5 km inland. This location is also difficult to reach, but it had been the
object of petroleum exploration contracts in the 1960's and yet no one had realized

this change had occurred.

In the area of San Juan there is no comparable economie activity (only the expected

tourism when the river becomes navigable); there have been no petroleum concessions
like those in the vicinity of the Coco River at the Northem border with Honduras.

3. The dredging project concerning the San Juan River relates to a shared

environment. In light of this, why was the Nicaraguan Environmental Impact
Study prepared from 2006 onwards and the permit of the Environment Ministry

of :Oecember 2008 for the San Juan dredging project to proceed, as weil as the
extension of the permit to the cleaning of the "cano", never communicated to

Costa Rica?

The San Juan River is entirely within Nicaraguan territory. Costa Rica since the time
of the Cleveland Award has tried to obtain the right of consultation and veto of any

dredging or improvement program in the River. In Costa Rica's arguments submitted
to President Cleveland, Costa Rica claimed such a right,

"[r]eferring now to interrogatory N° 6, I shall state positively that Costa Rica
has the right to prevent Nicaragua from executing, at her own cost, the works
to which she alludes, whenever undertaken without consideration of the rights

belong to Costa Rica, whether as cestuy que use of the river, or as joint owner

8 CR 2011/4, p. 39, para. 25 (Argüello). of the Bay, or exclusive sovereign of the right bank of the San Juan river, and

of the whole of the Colorado river, or of the other lands and waters of her
territory...Nicaragua cannot do any work either on the river or bay, whether for

the improvement or for the preservation of the same, without frrst giving notice
to Costa Rica and obtaining her consent" 9•

The Award clearly denied this right in the following terms:

"The Republic of Costa Rica cannot prevent the Republic of Nicaragua from

executing at her own expense and within her own territory such works of
improvement, provided such works of improvement do not result in the
occupation 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.
The Republic of Costa Rica has the right to demand indemnification for any

places belonging to her, on the right bank of the river San Juan which may be
occupied without her consent, and for any lands on the same bank which may

be flooded or damaged in any other way in consequence of works of
improvement" 1•

The question of the dredging and improvement is regulated by the Treaty of 1858 and

especially by this Award of 1888, and not by general international law. One of the
few things Nicaragua obtained of the claims decided by President Cleveland is this
right.It had a high priee and Nicaragua sees no reason to surrender it.

Besides, Costa Rica at the time (2006) was claiming navigational and other rights

along the River that went beyond its Treaty rights. At the time, both Parties were in
litigation before this Court on those questions. And after the Judgment of the Court of

13 July 2009, Costa Rica has opposed the regulatory powers of Nicaragua in the San
Juan River recognized by the Court. It has questioned these powers even at the present
11
stage of these proceedings .

Furthermore, Costa Rica authorized on 12 December 2006 the operation of a gold

mine in the area known as Las Crucitas, located 3 kilometers away from the San Juan
River. Nicaragua was not given a copy of the environmental impact study of this

project by Costa Rica. The operation of this gold mine that involved the possibly
catastrophic use of cyanide near the River bank and other environmental damage such

as the extensive deforestation that was carried out, resulted in great opposition to the
permit within Costa Rican society. The project was the object of several administrative

and judicial appeals until finally the high administrative Court of Costa Rica on 14

9 Argument on the question of Validity of the Treaty of Limits between Costa Rica and Nicaragua and other
supplementary points connected with it submitted to the Arbitration of the President of the United States of
America file on behalf of the Government of Costa Rica by Pedro PérezZeled6n,Washington, Gibson Bros.,
Printers and Bookbinders, 1887, p. 167.
10President Cleveland'sAward, Article 3, para. 6.
11 CR 2011/1,p. 16, para.2 (Ugalde Alvarez). December 2010 rendered a judgm.entprohibiting the operation of the gold mine and

ordering the institutionof proceedings against the persons involved in authorizing the
permit of the gold mine. This included the former President of Costa Rica (2006-
2010). Mr. Oscar Arias. The Judgm.entin the pertinent part reads:

"Therefore, given their involvement in acts declared illegal and void, it is

appropriate to communicate the resolution to the Public Prosecutor to
determine if it is appropriate or not to pursue criminal charges against any of
the following persons: Oscar Arias Sanchez, Roberto Dobles Mora, Sonia

Espinoza Valverde, Eduardo Murillo Marchena, Jose Francisco Castro Mufioz
Cavallini Cynthia Chinchilla, Sandra Arredondo Arias Li and Arnoldo Rudin.

We must emphasize that the President and the relevant Minister has the duty
laid down in Article 140 paragraph 3) of the Constitution, to ensure full
compliance with the laws, as weil, since the executive order number 34801 -

MINAET is blatantly illegal and was signed by Oscar Arias Sanchez and
Roberto Dobles Mora, this is what raises the possibility of criminal liability.
Furthermore, Mr. Arias Sanchez and Dobles Mora are the ones who signed the

resolution R-217-2008-MINAE through which the mining concession to
Industrias Infmito, was granted, an act that has also been declared illegal and
12
void in this judgm.ent" •

This judicial case involving one of the most influential persons in Costa Rica might

explain the reasons why Costa Rica has raised the border question with Nicaragua to
such levels ofintensity. The public hearings in that case began on 4 October 2010 and

the Judgm.ent was delivered on 24 November. The claims that Nicaragua had
"invaded" Costa Rican territory were made on 21 October. As might have been
intended, after being the most talked about event in Costa Rica's media, the gold mine

scandaihas been supersededby the charges againstNicaragua.

Finally, it must be pointed out that Nicaragua's studies referred to in the question were
hardly a secret. The document was made available to the public from 9 to 16 August
2006 and at least four public hearings were held regarding the dredging project, in
13
different Nicaraguan cities, and public notice was given of them • It is dif:ficultto
imagine that Costa Rica, which follows such matters very closely, was not aware of

these meetings, of the study, or of the project itself.

M. lejuge BENNOUNA :

1.Est-ce que le Nicaragua entreprend actuellement des travaux sur le canal dit

«First Cafio», y compris ceux relatifs à la construction et à l'élargissement de ce

12http://llamadourgentearchivo.blogspot.com/20 11/01/crucitas-sentencia-completa-del.html
13See document deposited within the Registry, Doc. N° 13. canal, l'abattage d'arbres, l'enlèvement de la végétationou de la tene, et le

déversement des sédiments?

Non. Le Nicaragua n'entreprend, à l'heure actuelle, pas de travaux sur le premier
cano; il n'y mèneaucune construction et ne l'élargitpas. Ceci a du reste étéconfirmé
par l'Agent durant les audiences, lorsqu'il a déclaréque l'opérationde nettoyage était
14
terminée(« over andfinished ») .

L'abattage d'arbres et l'enlèvementde végétationdans certaines zones le long du cano
ainsi que le dépôtde sédimentsétaientliésau nettoyage du cano. Dèslors que celui-ci

est terminé,la question ne se pose plus.

2. Est-ce que le Nicaragllnamaintient sur la portion du territoire dénomméel'île
de Portmos des troupes arméesou d'autres agents, quels qu'ils soient?

Aucune troupe nicaraguayenne ne stationne actuellement dans la zone en question et

le Nicaragua n'a pas l'intention d'y établirde poste militaireà l'avenir. li y a eu une

présencemilitaire dans cette zone durant la périodede six semaines durant laquelle le

cano a éténettoyé,mais ceci aux seu1esfms de la protection des ouvriers procédant à

cette opération.

Le Nicaragua n'a pas l'intention de faire stationner des agents dans cette zone. La

seu1eopérationqui y soit menéeactuellement est la replantation d'arbres. Le Ministère

de l'environnement du Nicaragua (MARENA) enverra périodiquementdes inspecteurs

sur place afin de surveiller le processus de reboisement, ainsi que les changements qui

pourraient se produire dans la région,y compris la lagune d'Harbor Head.

La Ministre nicaraguayenne de 1'environnement a rendu visite au Secrétariat de

RAMSAR le 14janvier 2011 pour renouveler l'invitation faite àcelui-ci de se rendre
au Nicaragua et d'obtenir le point de vue des autoritésnicaraguayennes et de visiter la
zone d'Harbor Head.

3. Est-ce que le Nicaragua s'engage à ne pas entreprendre de tels travaux, ni à

envoyer ses troupes arméesou d'autres agents sur l'île de Portillos, jusqu'à ce
que la Cour rende son jugement au fond ?

Le Nicaragua n'a nullement l'intention d'envoyer des troupes ou d'autres agents dans
la région. L'opération de nettoyage est bel et bien terminée. Le cano n'est plus

obstrué.Il est possible de patrouiller dans la zone sur les eaux du fleuve comme cela a
toujours été le cas, afm de faire respecter la loi, de lutter contre le trafic de drogue et le

crime organiséet pour la protection de 1'environnement.

14CR 2011/2, p. 16, para. 36 (Argüello) and CR 2011/4, p. 37, para. 18 (Argüello).Pour êtreparfaitement clair, le Nicaragua tient à répéterqu'il n'a nulle intention

d'installer dtroup ou~se bases militaires dans la zone en dispute.

Judge GREENWOOD:

1. First, at what date did Nicaragua first form the opinion that what it has
desc:ribed as theFirst Cano" was the boundary between itseif and Costa Rica

in accordance with the First Alexander Award?

Nicaragua has considered this question a settled matter since the time the Umpire­

Engineer found that the border followed "the first channel met" until reaching the
River proper. That is why Nicaragua has always patrolled the area with military and

police authorities - patrolling which Costa Rican authorities have been aware but

have not objected- and that is why tourists (the few able to arrive when the River is

navigable) are taken for visits along these wetlands and its several channels including
the "frrst cano" in those areas where it was not cloggedup.

This is a different matter from the question of the maps that could only be brought up
to date if a proper survey was done. That is why all official maps of Nicaragua's

international borders had the legend that they had not been verified on the ground.

That is why Nicaragua, as indicated in the answer to Judge Simma's question, had

been insisting in the meetingsf the Bilateral Commission that the border be properly
surveyed and mapped. That is why Nicaragua made general reservations on the

situation at the mouth of the River every time this subject came up.

The problem with the canos is that sorne have clogged up not only by the forces of

nature but also due to the hand of man. In the previous case before the Court, Costa

Rica filed a substantial amountof documents. Among these was a report dated 16
March 1906 given by a Costa Rican official in charge of guard posts in the San Juan

River,Mr. Jose Sol6rzano,which said:

"The Cano Pereira has not been blocked yet, as you ordered in your letter

number 280 from December 12th, because the water level is so low that not
even the smallest boat can enter. Here also I taleethe liberty of calling the
Inspector's attention to the following facts: in 1890, when the General
Inspector of the Treasury was Mr. V.J Golcher, said Cano was ordered to be
closed down and to that effect, 30 or 40 big trees were thrown on it; four years
later the Supreme Govemment ordered to open it again, and in June 1896 and

1897 [sic]the engineerMr. Luis Matamoros, who was part of the Commission
for Limits with Nicaragua, sent two sawsto eut down those trees that blocked the free navigation on said Ca:fio,pointing out that since the guard post La Vela
is at such good point for vigilance, it was a pity that Pereira remained almost
not navigable, as it is a Ca:fiothat could be of great u•e for this area"

As can be appreciated in the narrative, it is very easy to clog up the ca:fios.It is an

activity at which Costa Rica in its own testimony has shown expertise.

2. Secondly, did it l!llotifyCosta Rica o:fthat opmiolill?And i:fso, when and by what

means?

As indicated in the answer to the previous question, Nicaragua considered that there

was no special need formai notification since Nicaragua has always accepted the
Alexander Award and its determination that the frrst was the border. Soin

fact, when Nicaragua began cleaning the ca:fioit considered it was cleaning its own
territory and naturally did not consider any notification was necessary. As evidence of
the bona fides of this belief, Nicaragua' s effectivitésin the area were placed before the

Court in the hearings and were not seriously challenged by Costa Rica.

The Hague, 18 January 2011

~~
Carlos JoAR<J'6ELLOG6MEZ

Agent of the Republic of Nicaragua

15Dispute concerning Navigational and related rights (Costa Rica v. Nicaragua), Memorial of Costa Rica, 26

August 2006, Vol. 6, Annexes 193 to 245, p. 878.EMBASSY OF NICARAGUA

THE HAGUE
18January 2011

Sir,

With reference to the proceedings instituted by the Republic of Costa Rica

against the Republic ofNicaragua onmber 2010, in the case concerning Certain
Activities carried out by Nicaragua in the Border Area (Costa RicaI have
the honour to presentopies of the documents and maps attached to the answers of
the questions put by Judges·Simma,Bennouna and Greenwood at the end of the hearing
held on Thursday, January.

The undersigned Agent certifies that:

The 17 copies filed in the original language, are true copies of the original
texts.

The numbers referred in maps 4, 5,, 9, 10, 11, 12 and 13 are the code
numbers of each map under the CD-ROM of the book entitled ''Nicaragua;an Historical
Atlas" filed by the Co-Agentsta Rica on 10 January 2011.

Accept, Sir, the assurancehig~tmconsideratio~.

~~
Carlos ARaÛÉL..
Agent
· Republic ofNicaragua

HisExcellency
Mr. Philippe Couvreur
Registrar

International Court of Justice
Peace Palace
The HagueEMBASSY OF NICARAGUA
THE HAGUE

CERTIFICATION

The undersigned Agent of the Republic of Nicaragua certifies that the documents

contained in this file, and hereunder listed, are true and accurate copies of the original of
the documents, which are attached to the answers of the questions put by Judges
Simma, Bennouna and Greenwood at the end of the hearing held on Thursday, 13
January. The documents contained in this file are the following:

LIST OF DOCUMENT AND MAPS

DOCUMENTS

NUMBER DOCUMENT

Document 1. The Truth that Costa Rica hides about the River San Juan de Nicaragua.

MAPS

NUMBER MAP

Map 1· Map ofthe Department ofChontales Nicaraguan Institute of Territorial
Studies,November 2001

Map2 Map of the Department oRio San Juan by Nicaraguan Institute of
Territorial Studies, April2003

Map3 Map of Costa Rica, prepared by the Geographie Institute of Costa Rica
in 1971

Map4 Map ofNicaragua by L. Robelin, 1(N° 23)

Map5 RepublicofNicaragua by A. Demersseman, 1923 (N° 84)EMBASSY OF NICARAGUA
THE HAGUE

Map6 U.S. Engineer Office, Nicaraguan Canal Survey, 1929-1931 {N°35)

Map7 Map of Nicaragua, Ministry of Development, Department of Mapping,
196?N° 86)

Map8 Nicaragua by Richard Mayer,N° 24)

Map9 Map of the Republic of Nicaragua and part of the Republic of
Honduras and Costa Rica by Clifford D. Ham, 1924 (N° 62)

Map 10 Map of Nicaragua, Ministry of Development, Department of Mapping,
1965N°29)

Map 11 Mapof Nicaragua, Ministry of Development, Department of Mapping,

1966N° 56)

Map 12 Map of the Republic ofNicaragua by Texaco, 1978

Map 13 Republica de Nicaragua by Central Intelligence Agency, 1979

4~
CarloJARGÜELLO G6MEZ
Agent of the Republic of
NicaraguaEMBASSY OF NICARAGUA
THE HAGUE

CERTIFICATION

The undersigned Agent of the Republic of Nicaragua certifies that the document

hereunder listed is true and accurate translation into English of the original language
text of the documents, which are attached to the answers of the questions, put by Judges
Simma, Bennouna and Greenwood at the end of the hearing held on Thursday, 13
January. The document contained in this file is the following:

LIST OF DOCUMENTS TRANSLATED INTO ENGLISH

DOCUMENT

NUMBER DOCUMENT

Document 1. The Truth that Costa Rica hides about the River San Juan de Nicaragua.

Carlos ARGÜELLO GOMEZ
Agent of the Republic of
Nicaragua