Dispute regarding Navigational and Related Rights
(Costa Rica v. Nicaragua)
NICARAGUA'S
COMMENTS ON COSTA RICA'S WRITTEN REPLY OF 19 MARCH 2009
(To the questions putto the Parties by at the close of the public sitting
of 12 March 2009 by Judges Koroma, Keith and Bennouna)
The Answers to the Question put by Judge Koroma
1. The answers given by the Parties on 19 March 2009, including the historical materials
that were submittedin support ofthese answers, establish the following facts:
First, that in the period around 1858, when the Treaty of Limits was concluded, there
were no human settlements on Costa Rica's sideof the San Juan River; and there is no evidence
that any permanent settlements were established onthe right bank of the river before the 1960s.
Second, that in the period around 1858, and for at least the following 100 years, the
transportof passengers as a business concem on the San Juan River was conducted exclusively
by Nicaragua, and not by Costa Rica, and that this statef affairs was accepted by Costa Rica
without exception.
2. Regarding the fust point, Nicaragua demonstrated in her answer to Judge Koroma's
question that, according to a number of authoritative historical sources - including official Costa
Rican sources -the Costa Rican side of the river was uninhabited in the 1850s, and remained
without human settlement until weilinto the 20thcentury.
1See Nicaragua's Answer to Judge Koroma's Question of 19 March 2009 and Attachments 1-4 thereto.
13. Costa Rica's answer to the question, subrnitted on 19 March, offers no evidence to
dispute this historical fact. No historical or other sources are presented to demonstrate the
existence of any human settlements on the right bank of the river until the 1960s.
4. Costa Rica's answer addresses the question of habitation in its paragraphs 8-12.ZIn
paragraph 8, Costa Rica cites an essay from a Germantraveller who, in 1875, "made reference to
small farms on the Costa Rican bank of the San Juan River." Actually, the abbreviated excerpt
from the essay attached to Costa Rica's answer says only that the traveller navigated on the
Colorado River from Costa Rica's Atlantic Coast "until the San Juan River" ("hasta el rio San
4
Juan"). The text does not refer to any navigation on any part of the San Juan River. It is unclear
from the text provided by Costa Rica where along his route he saw the "small farms," and no
mention is made ofhow many (or few) were observed, or whether they were inhabited.
5. In parag:taph9, Costa Rica jumps ahead to "the beginning of the 20thcentury" and states,
without citation to any source whatsoever, that the river "continued to be an important waterway
enabling Costa Rican communities in the northern region" to communicate with each other..." It
is unclear what "communities" are intended to be included in this statement since there is no
evidence that any "communities" existed on the banks of the·San Juan River at the beginning of
the 20thcentury.
6. In paragraphs 10 and 11, Costa Rica attemptsto show that indigenous peoples lived along
both banks of the San Juan "in the 1850s." But the evidence relied on by Costa Rica does not
support this. Paragraph 10 merely quotes from Costa Rica's pleadings before President
5
Cleveland, where she said that indigenous peoples lived along the San Juan in 1563. The
2 The fust seven paragraphs of Costa Rica's answer discuss the transit ofpassengers, including immigrants, between
central Costa Rica and the Atlantican, via the San Juan River; Nicaragua's observations on this aspect of Costa
Rica's answer are set forth in paragraphs 14-18 below.
3
Elias Zeled6n Cartin, Viajes par la Republica de Costa Rica, Volume II (San Jose: 1977), at p. 302. CR Answer,
Attachment 4.
4Ibid.
5
Pedro Perez Zeled6n, Argument on the Question of the Validity of the Treaty ofLimits between Costa Rica and
Nicaragua (Washington D.C.: Gibson Bros., 1887), p. 33, CRM Complete Annexes, Volume 3. It should be noted
that in 1563 Costa Ricaad no juridical existence. It was only in 1573 that the first Governor for the Province of
Costa Rica was appointed. This Governor, Diego de Artieda y Cherinos, departed for his new post from the
Nicaraguan city of Granada, taking wihlm soldiers as well as farmers and artisans because none of these were
available in the territory of Costa Rica, which was of very minor importance during the whole colonial period up to
1821. The few native inhabitants found along the banksthe River by the Gobernor ofNicaragua in 1539, were
rounded up and taken to the main Spanish Colonial settlements that were located along the shoresGreat Lake
of Nicaragua.
2following paragraph claims that they stilllived there three centuries later in the 1850s. In support
of this proposition, Costa Rica says that "Travellers often described their small boats," citing
only Attachment 2 to her answers of 19 March. Actually, the indigenous people observed by
these travellers, by their own account "came from Granada" ("venian de Granada") - which is
on Lake Nicaragua, on the opposite side of the lake from where the San Juan River begins - not
7
from the banks of the San Juan itself; given this statement, the fact that they were observed
navigating on the San Juan does not support Costa Rica's argument that they lived on its banks,
which the "travellers" described as covered on both sides by a "dense, extraordinarily leafy
8
vegetal wall" ("muralla vegetal, densa y extraordinariamentefrondosa").
7. In paragraph 11, Costa Rica also states, in regard to the 1850s, that "small settlements
had emerged on both banks of the San Juan River." Again, the only source for this is
Attachment 2. And again, it does not support Costa Rica's statement. To the contrary, the excerpt
referenced by Costa Rica mentions riosettlements of any kind on the San Juan. What it describes
10
are two "inns for the steamship passengers" (''posadaspara los pasajeros de los vapores").
And it describes them as follows: "One of them, on the Nicaraguan bank, is the property of a
German; the other, on the Costa Rican bank, belongs to Don Alvarado who rented us our boat
and crew in Greytown [San Juan del Norte]. Both innkeepers were absent and the canteens and
dispensaries were closed, so we were unable to get anything, not even with money." 11This is the
closest Attachment 2 (or any other materials submitted by Costa Rica) gets to demonstrating the
existence of any settlements, or any population of any kind, onthe river prior to the 1960s.
8. Finally, in paragraph 12, Costa Rica claims that her boatmen "and riparians continued to
use the San Juan River as a waterway during the 20thcentury." Eight affidavits annexed to Costa
Rica's written pleadings, and two annexed to Nicaragua's pleadings, are cited in support. 12
6Moritz Wagner and Carlo Scherzer,La Republicade CostaRicaen CentroAmérica,Translationfrom the German
ProfessorJorgeA.Lines (San José:Yorusti Library, 1944), at pp. 55 and 59. CRAnswer Attachment 2.
7
CRAnswer Attachment 2, p. 59.
8CRAnswer Attachment 2, p. 59.
·9CR Answer Attachment 2, p. 62.
1
° CR Answer Attachment 2, p. 62.
11CR Answer Attachment 2, p. 62. [Original Spanish: Una de éstas,en la orilla nicaraguense, es propiedad de un
alemân; la otra, en la orilla costarricense, pertenece al mismo don Alvarado que nos habia alquilado el bote y los
marinerasen Greytown. Ambos posaderos estaban ausentes y habian cerrado las cantinas y despensas, de modo que
no pudimos conseguir nada, ni con dinero."]
12See CRM Anns. 91, 92, 93, 95, 96, 103, 106 and 108; RN Anns. 65 and 75.
3However, when these affidavits are actually read, it is discovered that ail but one address Costa
Rica's use ofthe river, including by local riparians, between the 1960s and thepresent. Only one
of the affidavits cited by Costa Rica says anything about the years before the 1960s. In that one,
a Costa Rican boatman, who claims to have been navigating on the river since the 1940s,
identifies the riverine communities between which he then navigated as San Juan del Norte (in
Nicaragua), Barra del Colorado (on the Colorado River in Costa Rica at the point where it meets
the A~lan Otiean) and La Virgen de Sarapiqui (at the source of the Sarapiqui River in Costa
13
Rica more than 40 km upriver from the San Juan). Thus, Costa Rica's own evidence provides
no support for the proposition that there were any communities or other human settlements along
her bank of the San Juan prior to the 1960s.
9. From this now firrnly-established fact, the following conclusion can be drawn: When the
Parties concluded the Treaty of Limits in 1858, the right of :freenavigation that they agreed
Costa Rica would have- to navigate "con objetos de comercio"- was not, and could not have
been, intended to include broad rights of navigation for "Costa Rican locals" for the simple
reason that there were no settlements in the850s (or for 100 years thereafter). Therefore, even
if hypothetically Costa Rica could somehow establish, at this late date, that there were a few
scattered dwellings along the San Juan in 1858, there is no evidence to suggest that the Parties
were even remotely thinking about them, or concemed about navigation by at most a handful of
local residents when they concluded the Treaty. To be sure, the right of free navigation "con
objetos de comercio" is available to all Costa Ricans, including those who later settled on the
right bank of the river long after the treaty was concluded. However, the navigation rights of
these "Costa Rican locals" do not extend beyond navigation "con objetos de comercio."
10. Notwithstanding the absence of a right to navigate other than "con objetos de comercio,"
Nicaragua has always extended to the "Costa Rican locals" the courtesy of permitting them to
navigate freely on the river for alllawful uses. TheCosta Rican locals" are subject to the same
regulations as are ali others who use the river, except that as a further courtesy extended to them
by Nicaragua they are exempt from Nicaragua's immigration requirements and 14ey are not
required to pay the fees normally required for departure clearance inspèctions.
11. Nicaragua plainly has not violated any Treaty rights of Costa Rica in regard to uses of the
San JuanRiver by "Costa Rican locals."
1See CRM Ann. 103.
14See RN, paras. 4.74, 4.88, 5.110; see also RN, Anns. 48, 70, 72, 73, 77 and 78; CR 2009/5, p. 21, para. 35; p. 24,
para 42; CR 2009/7, pp. 38-9, para. 6; p. 41, para. 13; CRR, Ann. 50, p. 280.
412. Nor has Nicaragua violated any alleged "customary rights" of Costa Rican locals to
engage in subsistence fishing. In the fust place, there is no such "customary right." Costa Rica
bases her claim on the supposition that "Costa Rican locals" have been :fishingon the river since
time immemorial. But this is impossible. How cou1dthere be a longstanding "custom" of fishing
by "Costa Rican locals" if there were no "Costa Rican locals" to practice this "custom" until the
1960s? Costa Rica has introduced no evidence that any fishing in or on the river was actually
done, by anyone, prior to the 1960s. The reason for this is obvious. There was no custom of
fishing from the Costa Rican side of the river because there were no permanent settlers living
there to exercise this activity.
13. Notwithstanding the absence of a customary right, Nicaragua has always permitted
"Costa Rican locals" to engage in subsistence :fishing.Nicaragua considers fishing from the right
bank of the river to be for subsistence purposes, and permits it. Nicaragua prohibits only
commercial and sport :fishing, which are done by boat. When boats are used for fishing
purposes, they extend broad nets across the river to catch and sell as many fish as possible,
which Nicaragua considers indiscriminate and damaging to fish and other aquatic species, and
not for subsistence :fishing,which in the circumstances of the San Juan River can well be done
from its banks. Costa Rica claims in her answers of 19 March that Nicaragua, contrary to her
word, has prohibited subsistence :fishing. Costa Rica is mistaken. To be sure, she refers to
certain affidavits, executed by Costa Rican fishermen, that attest to sanctions imposed on them
by Nicaragua. But in each case, as the affidavits themse1ves make clear, the sanctions were
applied to persons who were caught fishing from boats in the middle of the river, which
Nicaragua considers commercial fishing. 16There is no evidence that Nicaragua ever prohibited
or interfered with any :fishingactivities carried out from Costa Rica's shore.
14. Turning to the transit of passengers, including immigrants to Costa Rica, along the San
Juan River, Nicaragua largely agrees with Costa Rica's description of this practice, as set forth in
paragraphs 1-7 of her answers of 19 March. In particu1ar,Nicaragua agrees with the statements
by Costa Rica in paragraph 1 that "The San Juan River provided access to the Atlantic for Costa
Rica..." and that "The route, starting from San José[the capital of Costa Rica, located in the
geographie centre of the country], for example, required fust to travel by land sorne 70
kilometres to the Sarapiqui River, then navigating on the Sarapiqui River for sorne 40 kilometres
and then navigating the San Juan River for sorne 55 kilometres to the port of San Juan del Norte,
otherwise called Greytown." Nicaragua also agrees with the statement in paragraph 2 that
"Immigrants and other travellers to Costa Rica also used this as their entry route to the interior.of
Costa Rica. They would enter by the Port of San Juan del Norte, navigate the San Juan River
15See CR Answer, para 25.
16See CRAnns. 106, 107, 108 and 109 (cited in CRMparas. 5.142-5.143).
5until its junction with the Sarapiqui River and then follow this river until the town of La Virgen
in Sarapiqui. From there they were transported to the Central Valley of Costa Rica, where most
17
settlers established themselves."
15. Although Costa Rica spends seven paragraph supporting the undisputed fact that Costa
Ricans and immigrants travelled by boat along the San Juan River en route to other destinations
(in the interior of Costa Rica, or on the Atlantic Ocean beyond San Juan del Norte), she makes
no mention of how or under whose auspices these travellers to or from Costa Rica navigated on
the San Juan. This is a significant and perhaps deliberate omission, especially since this very
subject is addressed in the attachments to Costa Rica's 19 March answers. In particular,
Attachment 1, submitted by Costa Rica, says that in the 1850s all transportation ofpassengers on
the San Juan River, including the transport between the mouth of the Sarapiqui River and San
Juan del Norte, was conducted by the steamships of the Nicaraguan Transit Company ("de ahi
[the Sarapiqui] con los vapores de la Compàfiia del Trémsitode Nicaragua en el rio San Juan"),
an American company licensed by Nicaragua.
16. This is con:firmed by Attachment 2, also submitted by Costa Rica, which likewise
describes the transport of passengers on the San Juan River between San Juan del Norte and the
mouth of the Sarapiqui: "With the small American steamships, that conduct the traffic between
both oceans and carry the California travellers, it is possible to arrive at the mouth of the
Sarapiqui." 18From there, Costa Rica's attachment continues with a description of navigation
beyond the San Juan River, inside Costa Rican territory: navigation up the Sarapiqui to the
interior of Costa Rica could only be done in "small rowboats" (''pequefios botes") because
"navigation on the river itself, by means of steamship, is still very problematic" owing to the fact
that "the depth of the water depends completely on the rains, and is subject to many changes." 19
The document explains: "only very narrow steamships, with a maximum draught of twenty
inches, would be capable of conducting this service." 20Then it makes reference to a proposai to
17This stateroent by Costa Rica confinns what Nicaragua said in her 19 March answer to Judge Kororoa's question,
that there were no "Costa Rican locals or immigrants" inhabiting the right bank of the San Juan River at the tiroe the
Treaty ofLiroits was concludedr for decades thereafter. As Costa Rica has now con:finned, her immigrants
traveled past the San Juan, up the Sarapiqui, and thence by land to settle in the central part of the country.
18CR Answer Attachment 2, p. 63 [Original Spanish: "Con los pequefios vapores nortearoericanos, que roantienen el
trafico entre arobos océanosy que llevan a los viajeros californianos, se puede llegar hastacadura del
Sarapiqui.]
19
CR Answer Attachment 2, p. 63 [Original Spanish: "La navegaci6n del rio roisroo, por roedio de vapor, es atin
bastante probleroatica ... La altura de agua depende por completa de las lluvias y esta sometida a rouchos
carobios."]
2°CR Answer Attachroent 2, p. 63 [Original Spanish: [S]6lo vapores rouy angostos, con un calado roâxiroo de veinte
pulgadas, serian capaces de roantener elicio."]
6the government of Costa Rica by aMr. Forest, to establish such a steamship service on the
Sarapiqui in 1854, "but navigation on the Sarapiqui with steamships, still had not begun as of
21
1855." In fact, there is no evidence that this service ever materialized. Costa Rica implies, in
paragraph 3 of her 19 March answers, that the steamship service proposed to Costa Rica but
never carried out by Mr. Forest involved navigation on the San Juan River. It did not. As
Attachment 2, which is the source cited by Costa Rica, makes clear, the steamship service
proposed by Mr. Forest was for navigation exclusively on the Sarapiqui, in Costa Rican waters,
where there was no existing steamship service. 22
17. Costa Rica's 19 March answers therefore con:firmwhat Nicaragua said in her own 19
March answers, as well as in her written pleadings: that the commercial transportation of
passengers on the San Juan River at the time the Treaty of Limits was concluded, and for more
than 100 years thereafter, was always and exclusively controlled by Nicaragua. It was never
authorized, licensed or controlled by Costa Rica. The eyidence establishing these facts is
summarized in Nicaragua's Counter Memorial, at paragraphs 1.3.9 to 1.3.22, in her Rejoinder, at
paragraphs 3.90 and 3.91, and in her 19March answer to the question posed by Judge Keith.
18. From these facts, now supported by the documents submitted as attachments to Costa
Rica's 19 March answers, the following conclusion can be drawn: When the Parties concluded
the Treaty ofLimits in 1858, the right of:freenavigation that they agreed Costa Rica would have
- to navigate "con objetos de comercio"- was not, and could not have been, intended to include
the commercial transport of passengers on the San Juan River itself (as opposed to transport on
the Costa Rican tributaries or distributaries of the river) for the simple reasons that this was a
right that was exercised exclusively by Nicaragua, that was extremely valuable and important to
her, and that she had no intention of giving up or sharing with Costa Rica, which made no
contemporaneousmanifestation of any need or desire to have it. This understanding of the Treaty
was obviously shared by the Parties, at least for the next 100 years following the conclusion of
the Treaty, as re:flectedin their consistent practice for more than ten decades: Nicaragua, and
onlyNicaragua, controlled, licensed and authorized passenger traffic on the San Juan; Costa Rica
not only did none of this, but never attempted to do it, and never protested that Nicaragua alone
was doing it.
21CR Answer Attacbment 2, p. 63, footnote [Original Spanish: "...pero la navegaci6n del Sarapiqui por vapores, no
habia empezado alin en 1855."]
22
CR Answer Attachment 2, p. 63, footnote.
7The Answers to the Question put byJudge Keith
19. In her answer to the question asked by Judge Keith, Costa Rica struggles uphill against
the evidence regarding the transport of passengers, as distinguished from goods, on the San
Juan River, insisting that she has a right to carry passengers on the river both for commercial and
23
non-commercial purposes, and whether a fare is charged or not. To reach this conclusion, Costa
Rica resorts to characterizing the words "con objetos de comercio," as they appear in Article VI
24
of the 1858 Treaty, "as words of expansion andnot limitation."
20. With this argument, Costa Rica reveals more than she perhaps intends. In particular, she
confirms what Nicaragua has said all along about why Costa Rica has brought this case: to seek
an "expansion" ofher navigation rights under the 1858 Treaty. Costa Rica is not content that her
right of free navigation under Article VI is expressly limited to navigation "con objetos de
comercio" because this right -- to transport coffee or other articles of trade or commerce on the
river, ceased to have any substantial value to her soon after the Treaty was concluded, when she
stopped using the San Juan for the export and import oftrade goods. 25Since then, she has sought
to derive rights from the Treaty that would have value for her, but not granted to her. In the
arbitration before President Cleveland, she sought to expand Article VI to include a right to
navigate with men of war and other public vessels. She succeeded only in obtaining from
President Cleveland recognition of a right to navigate with revenue vessels -- not with men of
war or other public vessels -- and only as related to navigation "con objetos de comercio." In this
case, she seeks to expand Article VI even further, to include a right to navigate with ali public as
weil as private vessels, including armed policévessels, and to transport passengers of all kinds,
whether paying or not. Costa Rica's "expansive" interpretation of Article VI includes (indeed,
requires) the translation of "comercio" as "communication," such that any navigation between
any two points constitutes "communication," and therefore "comercio," between them. 26 The
words "navegaci6n con objetos de comercio" are thus rendered by Costa Rica as "navigation
with the purpose of navigation between any two points." These ''wordsof expansion," to use
Costa Rica's characterization, would not only expand but remove all limits on Costa Rica's
rights under Article VI, and permit her to navigate on the river with all boats, for all purposes,
with or without commercial cargo, with or without passengers.
23CR Answer, paras. 15 & 18.
24CRAnswer, para. 16.
25
SeeNCM, paras. 4.2.8, 4.2.17, 4.2.27, 4.3.1; see also NCM, Ann. 69; RN, paras. 3.53-3.57, 4.10-11; RN Ann. 50;
CR 2009/5, pp. 44-6, paras. 6-9; CR 200917,pp. 48, para. 29.
26CR Answer, para. 14.
821. It is now clear, ifit was not earlier, that this is precisely what Costa Rica intends. But her
intention cannat be reconciled with the language of Article VI. Interpreted as Costa Rica
suggests, the words "con objetos de comercio" lose all meaning. Costa Rica does not merely read
them "expansively" -- although even this would be unjustified -- but she reads them in a manner
that renders them entirely useless and without purpose, contrary to fundamental principles of
treaty interpretation under the general law oftreaties. If the words "con objetos to comercio" are
to be given any meaning at all, it can on1ybe as words of limitation, which limit Costa Rica's
right of :free navigation to navigation "con objetos de comercio." This necessarily means that
Costa Rica does not enjoy a right of :free navigation if the navigation is not "con objetos de
corner cio."
22. Nicaragua respectfully submits that navigation for the sole purpose of transporting
passengers, as distinguished from transporting goods, is not, and cannat be, navigation "con
objetos de comercio" as those words are used in Article VI. Whether navigation "con objetos de
corner cio" means navigation "with articles of trade" or navigation "for purposes of commerce,"
it does not include the commercial transport of passengers, because the evidence submitted to the
Court by both Parties, including the evidence described in paragraphs 14 to 17 above, shows that
the Parties did not intend to deprive Nicaragua of her exclusive right to conduct and control
passenger traffic on the river when they concluded the 1858 Treaty. If they had intended to give
Costa Rica this right, they would }lave said that Costa Rica has the right to transport passengers
as well as goods on the river, as is specifically stipulated in other contemporaneous treaties and
27
agreements. They did not do so.
23. In paragraph 17 of her 19 March answer to Judge Keith's question, Costa Rica lists six
different ways in which her alleged "right of navigation by transporting persans or by navigation
on their own" has been exercised? 8 Costa Rica's list of her actual uses of the river proves
nothing about the existence or extent of her "right of navigation" under the 1858 Treaty. She
confuses her navigation by right under that Treaty, which is limited to "transportation of goods,
.includmg trade goods, both between Co.staRican villages and with Nicaraguan villages such as
San Juan del Norte", as described in paragraph 17(e) of her 19 March answer, with her
navigation by courtesy of Nicaragua, as described in paragraphs 17 (a) through (d) and 17 (f).
On1y her navigation by right for "transportation of goods, including trade goods ..." -- as
described in paragraph 17(e) -- has been exercised continually since the conclusion of the 1858
Treaty; Costa Rica did not begin to use the river for any of the other purposes listed in paragraph
17 until the 1960s at the earliest. In paragraphs 17(a) and (b), for example, Costa Rica describes
navigation of Costa Rican tourist boats, which began in the 1990s and is not, in Nicaragua's
27
See RN, para. 3.91.
28
CR Answer, para. 17(a-f).
9view, navigation "con objetos de comercio." Nevertheless, Nicaragua has allowed this form of
navigation as a courtesy to Costa Rica, subject to compliance with the regulations that govem ali
navigation on the San Juan River. To the same e:ffect,in paragraphs 17(c) and (d) Costa Rica
lists navigation by local Costa Rican riparians, including schoolchildren; as explained above,
there were no local settlements on the right bank of the river before the 1960s, and there is no
right of local riparians to engage in navigation, unless it is with goods or other articles of trade; 29
nevertheless, Nicaragua has allowed it as a courtesy, subject to compliance with applicable
regulations. Finally, paragraph 17(f) lists ''transportation of public officiais to deliver essential
social, health, education and security services to riparians of the Costa Rican bank of the river."
Nicaragua has previously shown that navigation by public officiais in public boats for the
purpose of carrying out governmental functions,.of which there is no recorded occurrence before
the 1990s, is not navigation "con objetos de comercio," and that, accordingly, Costa Rica has no
30
right to engage in such navigation on the San Juan. Nevertheless, Nicaragua has allowed Costa
Rica to navigate on the San Juan with public officiais engaged in the performance of
governmental services, provided only that they comply with regulations applicable to all
navigation on the river. Costa Rican public officiais are permitted by Nicaragua to navigate on
the river in any public or private vessel; the only exception is that they may not navigate in
police vessels, since Nicaragua has prohibited, since July 1998, navigation on the river by Costa
Rican police vessels. Nicaragua has previously shown that Costa Rica has no right to navigate on
the San Juan River with 'berpolice vessels, but that she allowed Costa Rican police vesse1sto
use the river, for limited purposes and subject to strict conditions, until Costa Rica abused this
courtesybetween May and July 1998. 32
24. In sum, Costa Rica has failed to show, based on the language of the 1858 Treaty, the
rules of treaty interpretation, or the evidence pertaining to the practice of the Parties, that she has
a right to transport passengers on the San Juan River, either for hire or otherwise.
29
See paras. 9 and 10, above.
30See CR, 2009/5, p. 43, para. 5; pp. 54-55, paras. 25-28; pp. 26-42, paras. 4-44. CR, 200917,pp. 52-54, paras. 37-
41; pp. 31-37, paras. 2-15.
31CR 2009/5, pp. 26-42, paras. 4-44, pp. 46-54, paras. 10-24. CR, 200917,pp. 31-37, paras. 2-15, pp. 48-52, paras.
31-37.
32See RN, paras. 5.82-5.91, 5.101-5.108.
10 The Answers to the Question put byJudge Bennouna
25. In her 19 March answer to Judge Bennouna's question, Costa Rica denies that Nicaragua
consultedwith her about any of the Nicaraguan regulations governingnavigation on the San Juan
River, and that most of these regulations emerged from, or were modified by, a consultative
process. In so doing, Costa Rica ignores the key facts, which are proven by the contemporaneous
official records - including agreements between the two States and agreed minutes of meetings
of their Binational Commission- that Nicaragua cited in and attached to her own 19 March
33
answerto Judge Bennouna's question.
26. Costa Rica claims in Paragraph 20 of her 19 March answer that Nicaragua adopted the
regulation requiring foreign nationals navigating on the San Juan to purchase Nicaraguan tourist
cards (for $5 each) in March 1994, without consulting her in advance, and that Costa Rica
protested. Nicaragua maintains that, as sovereign over the river, she may enact reasonable
regulations governing navigation on the river without having to clear them in advance with Costa
Rica. Nevertheless, the record shows that, following the diplomatie correspondence between the
two States cited by Costa Rica, they reached an agreement in June 1994, that Nicaragua would
maintain her tourist card requirement, and furnish these cards to Costa Rican tour operators,
"which the latter must purchase, fUZin correctly and hand over to the relevant authorities." 34
The two States further agreed "to undertake the necessary construction and improvements" to
control posts along the river "in order that the ships and tourists may comply with the required
35
immigration procedures ef:ficiently,promptly and safely." These "immigration procedures"
included not only tourist cards, but also Nicaragua's immigration processing charges of $2 upon
36
entering and $2 upon leaving Nicaraguan territory. In light of this agreement, signed by the
Tourism Ministers of both States, Costa Rica cannot now complain about Nicaragua's
immigration procedures, or argue that she had no involvement in shaping or approving them. In
fact, consultations between the Parties continued to take place regarding these regulations, and
Costa Rica has only herself to blame for the fact that Nicaragua does not exempt Costa Rican
nationals (other than local riparians) from her tourist card .and immigration processing
requirements. In September 2002, the Foreign Ministers of Nicaragua and Costa Rica sigued an
agreement, which Costa Rica submitted as Annex 29 to her Memorial, where it was agreed that
Costa Rica would eliminate the fee she charges Nicaraguan nationals to obtain a Costa Rican
visa, and that: "As soon as the Government of Costa Rica eliminates the visa fee, the
33See Nic. Answer, Attacbments 5, 6 and 7.
34
MCR, Vol. II, Ann. 26, p. 187.
35
MCR, Vol. II, Ann. 26, pp. 187-188.
36See RN, Vol. Il, Ann. 73, p. 455.
11Government of Nicaragua shall also elim.inate, at the national level, the charge for tourist cards
37
and migratory services for Costa Rican citizens." More than six years have now passed since
this agreement was made, and Costa Rica has failed thus far to comply with her obligation to
eliminate the visa fee for Nicaraguan nationals. If and when she does comply, Nicaragua stands
ready to honour her commitment to exempt aUCosta Rican nationals from her tourist card and
innnigration processing requirements.
27. Costa Rica claim.s in Paragraph 21 that she was not consulted prior to Nicaragua's
prohibition of navigation by Costa Rican police vessels, which went into effect on 14 July 1998.
Nicaragua maintains that Costa Rica has no right to navigate on the river with her police vessels,
and that prior to 14 July 1998 Costa Rica did so only upon requesting and obtaining Nicaragua's
8
express prior permission? Thus, Nicaragua had no legal duty to consult with Costa Rica or
advise her in advance before making the decision no longer to authorize such navigation.
However, Costa Rica's own contemporaneous official police report shows that on 1 July 1998,
two weeks before the prohibition was communicated to Costa Rica, Nicaragua warned Costa
Rica that she would not tolerate further Costa Rican police navigation on the river to intercept
and detain Nicaraguan nationals navigating in Nicaraguan waters, and insisted that the Costa
39
Rican police terminate this practice. When the practice continued in spite of Nicaragua's
warning, the Nicaraguan military commander responsible for the San Juan sent an officer from
his staff to deliver a message personally to the Costa Rican police commander that no further use
of the San Juan by Costa Rican police vessels would be allowed. This, too, is proven by Costa
40
Rica's own records. Here again, Costa Rica has no cause to complain. In fact, Costa Rica's
President, Abel Pacheco, agreed in 2002 that Costa Rica has no reason to complain about the
inability of her police vessels to navigate on the San Juan River. According to the President of
Costa Rica, in published remarks: "We must understand that it is absurd that a country with no
army is fighting over the passage of armed persons on a navigable river that is drying up. So,
1
what's this row about?'.4
28. Costa Rica claim.sin Paragraph 22 that in August and September 1998 ''Nicaraguabegan
to prevent the transit of other Costa Rican public servants." The evidence cited by Costa Rica
does not support this assertion. Costa Rica cites only to her Memorial, paragraphs 5.97-5.98.
Those paragraphs, in turn, rely on two annexes to the Memorial, numbers 150 and 52. However,
37MC:R.,Vol. II, Ann. 29, p. 199.
38
See CMN, pp. 214-224; RN, pp. 264- 269; pp. 284-292.
39See MCR.,Vol. VI, Ann. 227, p. 963.
40See MCR.,Vol. VI, Ann. 227, p. 964.
41CMN, Vol. II, Ann. 81.
12upon consulting the cited annexes,Costa Rica's claim disappears. Annex 150 describes only how
Costa Rican officiais navigating in police vessels, were prohibited from entering the San Juan
River, because ofNicaragua's prohibition on navigation by Costa Rican police vessels after July
1998. Nicaragua did not prevent any Costa Rican public officiais from navigating on the San
Juan in other vesseis, public or private, even though they had no right to engage in such
navigation because it plainiy was not "con objetos de comercio." In fact, Costa Rica's own
evidence shows that the same Costa Rican officiais were permitted to navigate when they
returned in a private vessel. 42 Annex 52 describes the deiays in securing Nicaraguan
authorization to transit the river that were experienced by certain Costa Rican heaith officiais
engaged in the campaign to inoculate livestock against screwworm. However, Costa Rica's own
evidence shows that Nicaragua gave these officiais the authorization that they requested, and that
they were able to carry outthe inoculation program. 43
29. Costa Rica compiains in Paragraph 23 that in 1999 Nicaragua "started to impose
navigational timetabies on the River." This is an exaggerated reference to Nicaragua's
regulation, which was actually formalized in 1994, that navigation on the river may not take
place at night, except in cases of emergency. 44 The prohibition on night-time navigation applied
to aU vessels, including those from Nicaragua, and it was deemed necessary as a matter of
navigational safety. Costa Rica did not complain aboutit then, or at any time during the 1990s,
and agreed since as far back as her pleadings before President Cleveland that navigation on the
45
river after dark is dangerous; at the oral hearings, Costa Rica's counsel acknowledged that
Nicaragua's prohibition on navigation after nightfall is a means - although not his preferred
46
means - to assure navigational safety. The evidence showed that, by longstanding practice,
boatmen from Nicaragua and Costa Rica did not attempt to navigate at night because of their
47
own awareness of the hazards of such navigation.
30. In Paragraph 24, Costa Rica complains about a number of Nicaraguan regulations that,
allegedly, were adopted in 2001, but in fact were adopted much earlier, and were consulted with
and approved by Costa Rica herself. Specifically, Costa Rica complains about the requirements
that aU vessels stop and register at Nicaraguan control posts, undergo departure clearance
42MCR.,Vol. V, Ann. 150, p. 670.
43
See MCR, Vol. III, Ann. 53.
44
See Membrefio Affidavit, Nic. Answer, Attachment 7.
45RN, Vol. TI,Ann. 5, pp. 160-161.
46See CR 2009/3, p. 32, para. 26(e).
47
RN, pp. 209-211; See also Ann. 73, para. 9.
13inspections and pay for this service, and that Costa Rican nationals (other than local riparians)
purchase tourist cards and pay for immigration processing when they enter the river. Costa Rica
ignores the agreed Final Minutes ofthe Binational Commission meetings in 1995 and 1997, and
the agreement of the Parties' Ministers of Tourism in 1994, where these measures were
consu1ted and jointly approved. The 1995 Minutes state that "The Government of Costa Rica
takes note of the efforts carried outby the Government ofNicaragua, regarding the installation of
control posts in the Province of Rio San Juan [mentioning specifically the Nicaraguan posts at
Sarapiqui, El Delta and San Juan del Norte]". 48 The 1997 Minutes state that: "It was agreed that
Nicaragua will make efforts to establish posts at determined cites...With respect to the
movement of vessels, it was considered necessary that they navigate only if duly registered by
the posts that issue corresponding navigation certificates, in this case the posts at San Juan del
Norte, San Carlos and Sarapiqui." The pertinent part of the 1994 agreement of the Ministers of
Tourism has already been quoted above. Thus, the requirements that all vessels, including Costa
Rican vessels, stop and register at Nicaraguan control posts, and continuenavigating on the river
only upon issuance by Nicaragua of departure clearance certificates, and that Costa Rican
nationals pay for tourist cards and immigration processing, were all consulted and agreed to by
the Parties, and made operative prior to 1998.
31. There appears to be a reason why Costa Rica suddenly claims that these regulations were
adopted.in 2001, when all of the evidence shows that they were implemented, sorne even upon
agreement, between 1994 and 1997.In her Memorial, Costa Rica admittedthat prior to July 1998
her navigation rights on the San Juan River were not violated by Nicaragua in a systematic
50
way. Thus, regulations that were systematically implemented prior to July 1998, as all ofthese
regulations were, did not violate Costa Rica's rights- by her own admission. Renee her effort to
post-date them to sornetime in 2001.
32. In paragraphs 25 and 26, Costa Rica complains fust that Nicaragua imposed on Costa
Rican health and social workers the obligation ''tocarry passports and obtain visas as a condition
to navigate the River," and then complains that a year later Nicaragua "established a requirement
that Costa Rican health and social workers...request permission in writing from the Nicaraguan
Embassy for navigation on the River." Nicaragua notes that, as stated in her Counter Memorial,
at paragraph 1.3.20, her requirement that all foreign nationals entering her territory present a
valid passport is nothing new; it has been in force at all points of entry, including the San Juan
River, since the Decree of 11 September 1862. But what is truly strange about this pair of Costa
48
Nic. Answer, Attachment 6p.11.
49
RN, Vol.il,Ann. 4, p. 24 (emphasis added).
50See e.g. MCR.,para. 3.02.
14Rican complaints is that the later requirement- that Costa Rica's public workers need obtain
only written permission from the Nicaraguan Embassy, rather than a visa with its attendant $20
charge - actually reflects a deliberate relaxation by Nicaragua of the visa requirement, as an
accommodation to Costa Rica in response to her objection to that requirement. Nicaragua
recently adopted a new procedure whereby visas and/or written authorizations to enter
Nicaragua, including the San Juan River, can be obtained directly from Nicaragua's control posts
on the river, without having to visit the Nicaraguan Embassy or consulates in Costa Rica. 51This
'il
new regulation further facilitates the procedures for enteringNicaragua via the San Juan River or
any other part ofher territory. Nicaragua, of course, maintains that she has a sovereign right to
control her borders and regulate the entry of foreign nationals into her territory, and that in so
doing she is free, as are other sovereign States, to require all foreign nationals, or foreign
nationals from particular countries, to obtain visas before they may be allowed to enter
52
Nicaragua. Costa Rica, which prohibits Nicaraguan nationals from entering her territory
without a Costa Rican visa, has no grounds to complain. Nevertheless, Nicaragua has heard
Costa Rica's complaints, taken them into consideration, and modified her visa requirements
accordingly.
33. In conclusion, the evidence does not support Costa Rica's assertion that ''Nicaraguahas
neither informed nor consulted Costa Rica in advance on any measures or charges imposed on
Costa Rican navigation on the San Juan River," as stated in paragraph 19 of Costa Rica's 19
March answer. In fact, the evidence is to the contrary. It shows that, while Nicaragua has never
wavered from her position that, as sovereign over the river, she has the right to regulate
navigation in a reasonable manner without consulting with or obtaining approval from Costa
51Nicaragua, Presidential Decree No. 07-2009, 13 Mar. 2009. Article 1 provides: "In accordance with the agreement
creating a single Central American visa for theeemovement of foreigners, approved and ratified by the National
Assembly on 12 December 2006 and published in the Gazette number 13 of 18 January 2007, those citizens that
desire to travel to Nicaragua, classified in category B, visa without consultation, will granted a corresponding visa,
without undermining the need to comply with the requirementsf the law, whenever they enter the national
territory, at al! border posts, maritime, air and land, upon presenting thems"elvesat the Immigration Office at those
posts where they will paya fee for the amount of the visa and the tourist card."
(Original Spanish: "De acuerdo al convenio de creaci6n de visa ûnica centroamericana para la libre movilidad de
extranjeros, aprobado y ratificador la Asamblea Nacional el 12 dediciembre de 2006 y publicado en la Gaceta
numero 13 del18 de enero del2007, aquellos ciudadanos que deseen viajar a Nicaragua, clasificado en la categoria
B, visa sin consulta se les otorgaraisa correspondiente, sin menoscabo de cumplir con los requisitos de ley, toda
vez que se encuentre en el territorio nacional, en los puestos fronterizos, maritimos, aéreosy terrestre, debiéndose
presentar antea ventanilla de la oficina de Migraci6n y Extranjeria de dichos puestos donde pagarân un arancel por
el importe de la visa y la tarjeta de turismo."]
52See CR, 2009/5, pp. 12-15, paras. 14-20; pp. 24-25, para. 43. CR, 200917,p. 44, para. 18. See also RN, pp. 215-
218.
15Rica, in fact, Nicaragua's regulations goveming navigation on the river have resulted from a
process that has included consultation, dialogue, agreement, give-and-take, and accommodation
with Costa Rica in almost every case.
The Hague, 26 March 2009.
Carlos J. Argüello G6mez
Agent
Republic ofNicaragua
16
Nicaragua's comments on Costa Rica's written response to the questions put to the Parties by Judges Koroma, Keith and Bennouna at the end of the public sitting held on 12 March 2009