INTERNATIONAL COURT OF JUSTICE DISPUTE CONCERNING THE LAND BOUNDARY IN THE NORTHERN PART OF ISLA PORTILLOS (COSTA RICA v. NICARAGUA) COUNTER- MEMORIAL OF THE REPUBLIC OF NICARAGUA 18 APRIL 2017 INTERNATIONAL COURT OF JUSTICE DISPUTE CONCERNING THE LAND BOUNDARY IN THE NORTHERN PART OF ISLA PORTILLOS (COSTA RICA v. NICARAGUA) COUNTER- MEMORIAL OF THE REPUBLIC OF NICARAGUA 18 APRIL 2017 INTERNATIONAL COURT OF JUSTICE DISPUTE CONCERNING THE LAND BOUNDARY IN THE NORTHERN PART OF ISLA PORTILLOS (COSTA RICA v. NICARAGUA) COUNTER- MEMORIAL OF THE REPUBLIC OF NICARAGUA 18 APRIL 2017 Contents CHAPTER I. INTRODUCTION..............................................................................................1 A. The Jurisdiction of the Court............................................................................................1 B. The Limited Impact of the Joinder ...................................................................................1 C. Structure of the Counter Memorial...................................................................................2 CHAPTER II. THE SCOPE OF THE DISPUTE AND THE TASK OF THE COURT.....................................................................................................................................3 A. The Scope of the Court’s Judgment of 16 December 2015..............................................4 B. The Impact of the Shifting Nature of the Course of the Land Boundary on the Court’s Task........................................................................................................................12 C. The Task of Court in the Present Case ...........................................................................13 CHAPTER III. THE APPLICABLE PRINCIPLES TO THE DETERMINATION OF THE COURSE OF THE LAND BOUNDARY................................................................17 A. General Alexander’s Methodology ................................................................................17 B. The Shifting Nature of the Land Boundary ....................................................................21 C. The Starting-Point of the Land-Boundary Has Been Fixed Ne Varietur........................24 CHAPTER IV. THE MILITARY CAMP IS LOCATED ON NICARAGUAN TERRITORY ..........................................................................................................................27 Section 1. The Course of the Land Boundary between Harbor Head Lagoon and the Mouth of the San Juan River.........................................................................................27 A. Application of General Alexander’s Methodology on the Ground ................................27 B. Nicaragua’s Position is Confirmed by Costa Rica’s Long-Standing Views...................45 Section 2. The Location of the Military Camp....................................................................51 SUBMISSIONS ......................................................................................................................59 CERTIFICATION ..................................................................................................................61 LIST OF ANNEXES ..............................................................................................................65 Contents CHAPTER I. INTRODUCTION..............................................................................................1 A. The Jurisdiction of the Court............................................................................................1 B. The Limited Impact of the Joinder ...................................................................................1 C. Structure of the Counter Memorial...................................................................................2 CHAPTER II. THE SCOPE OF THE DISPUTE AND THE TASK OF THE COURT.....................................................................................................................................3 A. The Scope of the Court’s Judgment of 16 December 2015..............................................4 B. The Impact of the Shifting Nature of the Course of the Land Boundary on the Court’s Task........................................................................................................................12 C. The Task of Court in the Present Case ...........................................................................13 CHAPTER III. THE APPLICABLE PRINCIPLES TO THE DETERMINATION OF THE COURSE OF THE LAND BOUNDARY................................................................17 A. General Alexander’s Methodology ................................................................................17 B. The Shifting Nature of the Land Boundary ....................................................................21 C. The Starting-Point of the Land-Boundary Has Been Fixed Ne Varietur........................24 CHAPTER IV. THE MILITARY CAMP IS LOCATED ON NICARAGUAN TERRITORY ..........................................................................................................................27 Section 1. The Course of the Land Boundary between Harbor Head Lagoon and the Mouth of the San Juan River.........................................................................................27 A. Application of General Alexander’s Methodology on the Ground ................................27 B. Nicaragua’s Position is Confirmed by Costa Rica’s Long-Standing Views...................45 Section 2. The Location of the Military Camp....................................................................51 SUBMISSIONS ......................................................................................................................59 CERTIFICATION ..................................................................................................................61 LIST OF ANNEXES ..............................................................................................................65 INDEX OF FIGURES PAGE 2.1 General Geography 7 2.2 Costa Rica’s Three Land Boundary Termini and the Enclaved Lagoon 14 3.1 Sketch Map attached to the First Alexander Award, 1897 21 4.1 October 2016 Satellite Image used by Costa Rica 28 4.2 1960 Aerial Image 30 4.3 Drone Video Captures and Locations from December 2016 Site Visit 31 4.4 Drone Video Captures and Locations from March 2017 Site Visit 32 4.5 Satellite images used by Costa Rica 33 4.6 The Present-Day Channel Connecting Harbor Head Lagoon and Rio San Juan 34 4.7 Harbor of San Juan del Norte or Greytown (1890) 36 4.8 Map of Greytown Harbor, Nicaragua Canal Commission (1899) 37 4.9 Greytown to Colorado River (1903) 38 4.10 San Juan del Norte, US Corps of Engineers 1966 39 4.11 Punta Castilla, IGN, Costa Rica, 1970 40 4.12 Barra del Colorado, IGN, Costa Rica,1970 40 4.13 1961 Aerial Image 41 4.14 1981 Satellite Image 42 4.15 Costa Rica National Cadastre (2006) 43 4.16 Depiction of the boundary on 2017 satellite imagery 44 4.17 Boundaries accepted by Costa Rica 46 4.18 Punta Castilla, Topographic Sheet, IGN, Costa Rica, 1988 48 4.19 San Juan del Norte, Topographic sheet, INETER, Nicaragua, 1988 49 4.20 Costa Rica’s Consistent Depiction of the Land Boundary 50 4.21 Military Camp 2010 52 4.22 Repositioning of the Military Camp in 2010 53 4.23 The Military Camp in 2013-17 54 1 CHAPTER I. INTRODUCTION 1.1 The present proceedings were instituted by an Application filed by Costa Rica on 16 January 2017. By an Order of 2 February 2017, the International Court Justice fixed the dates for the filing of the Memorial and the Counter-Memorial.1 The present Counter-Memorial is filed in accordance with that Order. A. The Jurisdiction of the Court 1.2 In its Memorial, Costa Rica bases the jurisdiction of the Court on Article XXXI of the American Treaty on Pacific Settlement of 30 April 1948 (Pact of Bogotá)2 and on the declarations of acceptance pursuant to Article 36 (2) of the Statute of the Court made by Costa Rica dated 20 February 1973 and by Nicaragua on 24 September 1929.3 Nicaragua agrees with Costa Rica and accepts that the Court has jurisdiction in the present case. B. The Limited Impact of the Joinder 1.3 In its 2 February 2017 Order, the ICJ also decided to join the present case with the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) case (hereinafter ‘Maritime Delimitation case’).4 1.4 However, two factors will limit the practical effect of the joinder: 1 I.C.J., Order, 2 February 2017, Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), para. 18(1). 2 Memorial of Costa Rica (CRM) in the case concerning the Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), para. 1.11. 3 Ibid., para. 1.10. 4 Ibid., para. 18(2). INDEX OF FIGURES PAGE 2.1 General Geography 7 2.2 Costa Rica’s Three Land Boundary Termini and the Enclaved Lagoon 14 3.1 Sketch Map attached to the First Alexander Award, 1897 21 4.1 October 2016 Satellite Image used by Costa Rica 28 4.2 1960 Aerial Image 30 4.3 Drone Video Captures and Locations from December 2016 Site Visit 31 4.4 Drone Video Captures and Locations from March 2017 Site Visit 32 4.5 Satellite images used by Costa Rica 33 4.6 The Present-Day Channel Connecting Harbor Head Lagoon and Rio San Juan 34 4.7 Harbor of San Juan del Norte or Greytown (1890) 36 4.8 Map of Greytown Harbor, Nicaragua Canal Commission (1899) 37 4.9 Greytown to Colorado River (1903) 38 4.10 San Juan del Norte, US Corps of Engineers 1966 39 4.11 Punta Castilla, IGN, Costa Rica, 1970 40 4.12 Barra del Colorado, IGN, Costa Rica,1970 40 4.13 1961 Aerial Image 41 4.14 1981 Satellite Image 42 4.15 Costa Rica National Cadastre (2006) 43 4.16 Depiction of the boundary on 2017 satellite imagery 44 4.17 Boundaries accepted by Costa Rica 46 4.18 Punta Castilla, Topographic Sheet, IGN, Costa Rica, 1988 48 4.19 San Juan del Norte, Topographic sheet, INETER, Nicaragua, 1988 49 4.20 Costa Rica’s Consistent Depiction of the Land Boundary 50 4.21 Military Camp 2010 52 4.22 Repositioning of the Military Camp in 2010 53 4.23 The Military Camp in 2013-17 54 1 CHAPTER I. INTRODUCTION 1.1 The present proceedings were instituted by an Application filed by Costa Rica on 16 January 2017. By an Order of 2 February 2017, the International Court Justice fixed the dates for the filing of the Memorial and the Counter-Memorial.1 The present Counter-Memorial is filed in accordance with that Order. A. The Jurisdiction of the Court 1.2 In its Memorial, Costa Rica bases the jurisdiction of the Court on Article XXXI of the American Treaty on Pacific Settlement of 30 April 1948 (Pact of Bogotá)2 and on the declarations of acceptance pursuant to Article 36 (2) of the Statute of the Court made by Costa Rica dated 20 February 1973 and by Nicaragua on 24 September 1929.3 Nicaragua agrees with Costa Rica and accepts that the Court has jurisdiction in the present case. B. The Limited Impact of the Joinder 1.3 In its 2 February 2017 Order, the ICJ also decided to join the present case with the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) case (hereinafter ‘Maritime Delimitation case’).4 1.4 However, two factors will limit the practical effect of the joinder: 1 I.C.J., Order, 2 February 2017, Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), para. 18(1). 2 Memorial of Costa Rica (CRM) in the case concerning the Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), para. 1.11. 3 Ibid., para. 1.10. 4 Ibid., para. 18(2). 2 - The stretch of coast between the mouth of the San Juan River and Harbor Head Lagoon has very little influence, if any, on the course of the maritime boundary since no relevant base point has been identified by either of the Parties on the coast; 5 and, - Land and maritime boundary delimitations are distinct issues. C. Structure of the Counter Memorial 1.5 In addition to this Introduction, the present Counter-Memorial is divided in three Chapters. In Chapter II, Nicaragua will show that the task of the Court is to determine the course of the land boundary in the vicinity of the stretch of coast running from Harbor Head Lagoon to the mouth of the San Juan River. The determination of the precise course of the boundary will necessarily be temporary because, as the Parties now agree,6 the boundary line will “change with the geography, as envisioned in the Second Alexander Award.”7 Chapter III sets out the principles relevant to the determination of the course of the land boundary. In Chapter IV, Nicaragua will then demonstrate that the military camp is situated on Nicaraguan territory by application of the Jerez-Cañas Treaty of Limits of 15 April 1858 and its successive arbitral and judicial interpretations. Finally, the Submissions of Nicaragua will be set out at the end of this Counter-Memorial. 5 See in the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) case: Memorial of Costa Rica p. 64, Sketch-Map 4.8 and Counter Memorial of Nicaragua, p. 107, Figure IId-1. 6 See paras. 2.21-2.22 below. 7 CRM, para. 2.2. 3 CHAPTER II. THE SCOPE OF THE DISPUTE AND THE TASK OF THE COURT 2.1 In its Memorial, Costa Rica describes the present dispute as being twofold: “This dispute between Costa Rica and Nicaragua submitted to the Court by Costa Rica concerns the precise location of the land boundary in the northern area of Isla Portillos, i.e. the boundary separating today the Los Portillos/Harbor Head Lagoon sandbar from Isla Portillos. It also concerns the illegal establishment of a military camp by Nicaragua on the beach of Isla Portillos, a territory belonging to Costa Rica as confirmed by the Court in its Judgment of 16 December 2015 in the Certain Activities case.”8 2.2 This description calls for three remarks. Each of them will be developed in turn in the present Chapter. 2.3 First, Costa Rica wrongly seeks to limit the geographical scope of its first claim to the sandbar separating the Harbor Head Lagoon from the Caribbean Sea. As the Court expressly stated, it did not determine the location of the land boundary between the mouth of the San Juan River and Harbor Head Lagoon in its 16 December 2015 Judgment rendered in the Certain Activities case. The boundary along this entire stretch of coast remains open (A.). 9 2.4 Second, even admitting for the sake of the discussion, that the Court did make such determination (quod non), the shifting character of the land boundary requires that the course of the boundary from the fixed starting point determined by Arbitrator Alexander be ascertained anew in the present case. As the Parties 8 CRM, para. 1.8. 9 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, para. 70. 2 - The stretch of coast between the mouth of the San Juan River and Harbor Head Lagoon has very little influence, if any, on the course of the maritime boundary since no relevant base point has been identified by either of the Parties on the coast; 5 and, - Land and maritime boundary delimitations are distinct issues. C. Structure of the Counter Memorial 1.5 In addition to this Introduction, the present Counter-Memorial is divided in three Chapters. In Chapter II, Nicaragua will show that the task of the Court is to determine the course of the land boundary in the vicinity of the stretch of coast running from Harbor Head Lagoon to the mouth of the San Juan River. The determination of the precise course of the boundary will necessarily be temporary because, as the Parties now agree,6 the boundary line will “change with the geography, as envisioned in the Second Alexander Award.”7 Chapter III sets out the principles relevant to the determination of the course of the land boundary. In Chapter IV, Nicaragua will then demonstrate that the military camp is situated on Nicaraguan territory by application of the Jerez-Cañas Treaty of Limits of 15 April 1858 and its successive arbitral and judicial interpretations. Finally, the Submissions of Nicaragua will be set out at the end of this Counter-Memorial. 5 See in the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) case: Memorial of Costa Rica p. 64, Sketch-Map 4.8 and Counter Memorial of Nicaragua, p. 107, Figure IId-1. 6 See paras. 2.21-2.22 below. 7 CRM, para. 2.2. 3 CHAPTER II. THE SCOPE OF THE DISPUTE AND THE TASK OF THE COURT 2.1 In its Memorial, Costa Rica describes the present dispute as being twofold: “This dispute between Costa Rica and Nicaragua submitted to the Court by Costa Rica concerns the precise location of the land boundary in the northern area of Isla Portillos, i.e. the boundary separating today the Los Portillos/Harbor Head Lagoon sandbar from Isla Portillos. It also concerns the illegal establishment of a military camp by Nicaragua on the beach of Isla Portillos, a territory belonging to Costa Rica as confirmed by the Court in its Judgment of 16 December 2015 in the Certain Activities case.”8 2.2 This description calls for three remarks. Each of them will be developed in turn in the present Chapter. 2.3 First, Costa Rica wrongly seeks to limit the geographical scope of its first claim to the sandbar separating the Harbor Head Lagoon from the Caribbean Sea. As the Court expressly stated, it did not determine the location of the land boundary between the mouth of the San Juan River and Harbor Head Lagoon in its 16 December 2015 Judgment rendered in the Certain Activities case. The boundary along this entire stretch of coast remains open (A.). 9 2.4 Second, even admitting for the sake of the discussion, that the Court did make such determination (quod non), the shifting character of the land boundary requires that the course of the boundary from the fixed starting point determined by Arbitrator Alexander be ascertained anew in the present case. As the Parties 8 CRM, para. 1.8. 9 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, para. 70. 4 now agree,10 the course of the boundary line will change with the geography. Consequently, the course of the boundary is to be determined at the time a problem arises between the Parties (B.). 2.5 Third, it follows that the only subject-matter of the present case is the identification of the location by the Court of the boundary between the mouth of the San Juan River and Harbor Head Lagoon, for the sole purpose of determining whether Nicaragua’s military camp is located on its territory or on the territory of Costa Rica (C.). A. The Scope of the Court’s Judgment of 16 December 2015 2.6 Costa Rica contends that, as a result of its 2015 Judgment, the Court’s task in the present case is limited to “the determination of the exact location of the boundary separating each end of the Los Portillos/Harbor Head Lagoon sandbar from the beach of Isla Portillos.”11 According to Costa Rica, the Court cannot determine anew the location of the portion of the boundary between the mouth of the San Juan River and the Harbor Head Lagoon because this issue has been decided by the Court in its 2015 Judgment and is therefore res judicata. 12 This claim is directly contradicted by that Judgment. 2.7 Explaining the res judicata principle, Costa Rica quotes paragraph 59 of the Court’s Judgment of 17 March 2016 in the case concerning the Question of the delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan coast (Nicaragua v. Colombia): 10 See paras. 2.21-2.22 below. 11 CRM, para. 2.11. 12 Ibid. 5 “It is not sufficient, for the application of res judicata, to identify the case at issue, characterized by the same parties, object and legal ground; it is also necessary to ascertain the content of the decision, the finality of which is to be guaranteed. The Court cannot be satisfied merely by an identity between requests successively submitted to it by the same Parties; it must determine whether and to what extent the first claim has already been definitively settled.”13 2.8 The Court went further in that Judgment. Quoting its 2007 Judgment in in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), the Court clarified that “‘[i]f a matter has not in fact been determined, expressly or by necessary implication, then no force of res judicata attaches to it; and a general finding may have to be read in context in order to ascertain whether a particular matter is or is not contained in it’ (I.C.J. Reports 2007 (I), p. 95, para. 126).”14 2.9 It follows that the various statements of the Parties during the proceedings are not relevant to the scope of the application of the res judicata principle, contrary to what Costa Rica would have the Court believe. 15 In order to determine the precise scope of the Court’s decision in its 2015 Judgment, one must focus on the Judgment itself. The Parties agree that the key paragraphs of that Judgment are paragraphs 69 and 70.16 These paragraphs read as follows: “69. Since it is uncontested that Nicaragua conducted certain activities in the disputed territory, it is necessary, in order to establish whether there was a breach of Costa Rica’s territorial sovereignty, to determine which State has sovereignty over that territory. The ‘disputed territory’ was defined by the Court in its Order of 8 March 2011 on provisional measures 13 I.C.J., Judgment, 17 March 2016, Question of the delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan coast (Nicaragua v. Colombia), para. 59. 14 Ibid. 15 See CRM, para. 2.21. 16 See ibid., para. 2.11. 4 now agree,10 the course of the boundary line will change with the geography. Consequently, the course of the boundary is to be determined at the time a problem arises between the Parties (B.). 2.5 Third, it follows that the only subject-matter of the present case is the identification of the location by the Court of the boundary between the mouth of the San Juan River and Harbor Head Lagoon, for the sole purpose of determining whether Nicaragua’s military camp is located on its territory or on the territory of Costa Rica (C.). A. The Scope of the Court’s Judgment of 16 December 2015 2.6 Costa Rica contends that, as a result of its 2015 Judgment, the Court’s task in the present case is limited to “the determination of the exact location of the boundary separating each end of the Los Portillos/Harbor Head Lagoon sandbar from the beach of Isla Portillos.”11 According to Costa Rica, the Court cannot determine anew the location of the portion of the boundary between the mouth of the San Juan River and the Harbor Head Lagoon because this issue has been decided by the Court in its 2015 Judgment and is therefore res judicata. 12 This claim is directly contradicted by that Judgment. 2.7 Explaining the res judicata principle, Costa Rica quotes paragraph 59 of the Court’s Judgment of 17 March 2016 in the case concerning the Question of the delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan coast (Nicaragua v. Colombia): 10 See paras. 2.21-2.22 below. 11 CRM, para. 2.11. 12 Ibid. 5 “It is not sufficient, for the application of res judicata, to identify the case at issue, characterized by the same parties, object and legal ground; it is also necessary to ascertain the content of the decision, the finality of which is to be guaranteed. The Court cannot be satisfied merely by an identity between requests successively submitted to it by the same Parties; it must determine whether and to what extent the first claim has already been definitively settled.”13 2.8 The Court went further in that Judgment. Quoting its 2007 Judgment in in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), the Court clarified that “‘[i]f a matter has not in fact been determined, expressly or by necessary implication, then no force of res judicata attaches to it; and a general finding may have to be read in context in order to ascertain whether a particular matter is or is not contained in it’ (I.C.J. Reports 2007 (I), p. 95, para. 126).”14 2.9 It follows that the various statements of the Parties during the proceedings are not relevant to the scope of the application of the res judicata principle, contrary to what Costa Rica would have the Court believe. 15 In order to determine the precise scope of the Court’s decision in its 2015 Judgment, one must focus on the Judgment itself. The Parties agree that the key paragraphs of that Judgment are paragraphs 69 and 70.16 These paragraphs read as follows: “69. Since it is uncontested that Nicaragua conducted certain activities in the disputed territory, it is necessary, in order to establish whether there was a breach of Costa Rica’s territorial sovereignty, to determine which State has sovereignty over that territory. The ‘disputed territory’ was defined by the Court in its Order of 8 March 2011 on provisional measures 13 I.C.J., Judgment, 17 March 2016, Question of the delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan coast (Nicaragua v. Colombia), para. 59. 14 Ibid. 15 See CRM, para. 2.21. 16 See ibid., para. 2.11. 6 as ‘the northern part of Isla Portillos, that is to say, the area of wetland of some 3 square kilometres between the right bank of the disputed caño, the right bank of the San Juan River up to its mouth at the Caribbean Sea and the Harbor Head Lagoon’ (I.C.J. Reports 2011 (I), p. 19, para. 55). The caño referred to is the one which was dredged by Nicaragua in 2010. Nicaragua did not contest this definition of the ‘disputed territory’, while Costa Rica expressly endorsed it in its final submissions (para. 2 (a)). The Court will maintain the definition of ‘disputed territory’ given in the 2011 Order. It recalls that its Order of 22 November 2013 indicating provisional measures specified that a Nicaraguan military encampment ‘located on the beach and close to the line of vegetation’ near one of the caños dredged in 2013 was ‘situated in the disputed territory as defined by the Court in its Order of 8 March 2011’ (I.C.J. Reports 2013, p. 365, para. 46). 70. The above definition of the ‘disputed territory’ does not specifically refer to the stretch of coast abutting the Caribbean Sea which lies between the Harbor Head Lagoon, which lagoon both Parties agree is Nicaraguan, and the mouth of the San Juan River. In their oral arguments the Parties expressed different views on this issue. However, they did not address the question of the precise location of the mouth of the river nor did they provide detailed information concerning the coast. Neither Party requested the Court to define the boundary more precisely with regard to this coast. Accordingly, the Court will refrain from doing so.”17 2.10 The situation is comparable to that prevailing in the 2013 Temple (Request for Interpretation) case where the Court considered that the finding in its 1962 Judgment that “‘the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia’ must be taken as referring, like the second and third paragraphs [of the dispositif in the 1962 Judgment], to the promontory of Preah Vihear, within the limits described in paragraph 98 of the present Judgment” without considering it necessary further to address the question whether the 1962 17 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, paras. 69-70 – emphasis added. 7 Judgment determined with binding force the boundary line between Cambodia and Thailand.”18 2.11 Similarly, a plain reading of paragraphs 69 and 70 of the 2015 Judgment shows that, in the present case, the Court did not need to determine the precise location of the boundary at any point between the northwestern end of Harbor Head Lagoon and the mouth of the San Juan River. The Court’s abstention from making a determination of the boundary did not relate only to the area in the vicinity of the sandbar separating Harbor Head Lagoon from the Caribbean Sea as Costa Rica claims. 19 Figure 2.1 General Geography 18 I.C.J., Judgment, 11 November 2013, Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Reports 2013, p. 317, paras. 103-104. 19 CRM, para. 2.40. 6 as ‘the northern part of Isla Portillos, that is to say, the area of wetland of some 3 square kilometres between the right bank of the disputed caño, the right bank of the San Juan River up to its mouth at the Caribbean Sea and the Harbor Head Lagoon’ (I.C.J. Reports 2011 (I), p. 19, para. 55). The caño referred to is the one which was dredged by Nicaragua in 2010. Nicaragua did not contest this definition of the ‘disputed territory’, while Costa Rica expressly endorsed it in its final submissions (para. 2 (a)). The Court will maintain the definition of ‘disputed territory’ given in the 2011 Order. It recalls that its Order of 22 November 2013 indicating provisional measures specified that a Nicaraguan military encampment ‘located on the beach and close to the line of vegetation’ near one of the caños dredged in 2013 was ‘situated in the disputed territory as defined by the Court in its Order of 8 March 2011’ (I.C.J. Reports 2013, p. 365, para. 46). 70. The above definition of the ‘disputed territory’ does not specifically refer to the stretch of coast abutting the Caribbean Sea which lies between the Harbor Head Lagoon, which lagoon both Parties agree is Nicaraguan, and the mouth of the San Juan River. In their oral arguments the Parties expressed different views on this issue. However, they did not address the question of the precise location of the mouth of the river nor did they provide detailed information concerning the coast. Neither Party requested the Court to define the boundary more precisely with regard to this coast. Accordingly, the Court will refrain from doing so.”17 2.10 The situation is comparable to that prevailing in the 2013 Temple (Request for Interpretation) case where the Court considered that the finding in its 1962 Judgment that “‘the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia’ must be taken as referring, like the second and third paragraphs [of the dispositif in the 1962 Judgment], to the promontory of Preah Vihear, within the limits described in paragraph 98 of the present Judgment” without considering it necessary further to address the question whether the 1962 17 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, paras. 69-70 – emphasis added. 7 Judgment determined with binding force the boundary line between Cambodia and Thailand.”18 2.11 Similarly, a plain reading of paragraphs 69 and 70 of the 2015 Judgment shows that, in the present case, the Court did not need to determine the precise location of the boundary at any point between the northwestern end of Harbor Head Lagoon and the mouth of the San Juan River. The Court’s abstention from making a determination of the boundary did not relate only to the area in the vicinity of the sandbar separating Harbor Head Lagoon from the Caribbean Sea as Costa Rica claims. 19 Figure 2.1 General Geography 18 I.C.J., Judgment, 11 November 2013, Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Reports 2013, p. 317, paras. 103-104. 19 CRM, para. 2.40. 8 2.12 At paragraph 69 of its 2015 Judgment, the Court defined the “disputed territory” for the purposes of the Certain Activities case. This definition does not indicate or imply the precise limits of the territory in question. At paragraph 70, the Court made clear that its definition “does not specifically refer to the stretch of coast abutting the Caribbean Sea which lies between the Harbor Head Lagoon, which lagoon both Parties agree is Nicaraguan, and the mouth of the San Juan River.”20 In other words, the Court, expressly and clearly, took no position on the stretch of coast at stake in the present case, or even on the precise limits of this stretch of coast. 2.13 Costa Rica is at pains to explain this exclusion. Without any explanation or supporting evidence, Costa Rica states that “[t]his phrase simply explains that the definition of ‘disputed territory’ does not preclude the possible existence of territory beyond the disputed territory that was concerned by the activities of Nicaragua in the Certain Activities case” and that this sentence implies that “if there was any other land capable of appropriation under international law, beyond the beach of Isla Portillos – beach which the Court had just declared to be Costa Rican territory – such land was not subject to its 2015 Judgment.”21 It also contends, again with no reference, that “[c]ertainly, Nicaragua claimed the existence of other territory seaward of Isla Portillos, but this was deemed to be a matter that fell outside the jurisdiction of the Court.”22 This is pure imagination. 2.14 In paragraph 70 of its 2015 Judgment, the Court gave two reasons for excluding the stretch of coast between the mouth of San Juan River and Harbor Head Lagoon: 20 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, para. 70 – emphasis added. 21 CRM, para. 2.39. 22 Ibid. 9 - First, the Parties “did not address the question of the precise location of the mouth of the river”; and - Second, the Parties did not “provide detailed information concerning the coast.”23 2.15 There is no reference in paragraph 70 or elsewhere in the 2015 Judgment to any lands seaward of Isla Portillos as mentioned by Costa Rica or to the supposed claims on these lands that Costa Rica attributes to Nicaragua. 2.16 Finally, the Court noted that neither Party had requested the Court to determine the precise location of the boundary in the vicinity of the stretch of coast extending from Harbor Head Lagoon to the mouth of the San Juan River. 24 It then logically concluded that it was not in a position to do so. 25 The text of the Court’s 2015 Judgment could not be clearer: “Neither Party requested the Court to define the boundary more precisely with regard to this coast. Accordingly, the Court will refrain from doing so.”26 Clearly, the Court did not fix the limits of the ‘territory in dispute’. 27 2.17 This is confirmed by two declarations made by Judges Gevorgian and Guillaume. According to the latter: “18. Cette solution s’imposait d’autant plus que la Cour ne disposait pas de tous les éléments nécessaires pour se prononcer clairement. Elle a 23 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, para. 70. 24 Ibid. 25 Ibid. 26 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, paras. 69-70. 27 In the same vein see the Court’s Judgment in the Temple case – see above note 18. 8 2.12 At paragraph 69 of its 2015 Judgment, the Court defined the “disputed territory” for the purposes of the Certain Activities case. This definition does not indicate or imply the precise limits of the territory in question. At paragraph 70, the Court made clear that its definition “does not specifically refer to the stretch of coast abutting the Caribbean Sea which lies between the Harbor Head Lagoon, which lagoon both Parties agree is Nicaraguan, and the mouth of the San Juan River.”20 In other words, the Court, expressly and clearly, took no position on the stretch of coast at stake in the present case, or even on the precise limits of this stretch of coast. 2.13 Costa Rica is at pains to explain this exclusion. Without any explanation or supporting evidence, Costa Rica states that “[t]his phrase simply explains that the definition of ‘disputed territory’ does not preclude the possible existence of territory beyond the disputed territory that was concerned by the activities of Nicaragua in the Certain Activities case” and that this sentence implies that “if there was any other land capable of appropriation under international law, beyond the beach of Isla Portillos – beach which the Court had just declared to be Costa Rican territory – such land was not subject to its 2015 Judgment.”21 It also contends, again with no reference, that “[c]ertainly, Nicaragua claimed the existence of other territory seaward of Isla Portillos, but this was deemed to be a matter that fell outside the jurisdiction of the Court.”22 This is pure imagination. 2.14 In paragraph 70 of its 2015 Judgment, the Court gave two reasons for excluding the stretch of coast between the mouth of San Juan River and Harbor Head Lagoon: 20 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, para. 70 – emphasis added. 21 CRM, para. 2.39. 22 Ibid. 9 - First, the Parties “did not address the question of the precise location of the mouth of the river”; and - Second, the Parties did not “provide detailed information concerning the coast.”23 2.15 There is no reference in paragraph 70 or elsewhere in the 2015 Judgment to any lands seaward of Isla Portillos as mentioned by Costa Rica or to the supposed claims on these lands that Costa Rica attributes to Nicaragua. 2.16 Finally, the Court noted that neither Party had requested the Court to determine the precise location of the boundary in the vicinity of the stretch of coast extending from Harbor Head Lagoon to the mouth of the San Juan River. 24 It then logically concluded that it was not in a position to do so. 25 The text of the Court’s 2015 Judgment could not be clearer: “Neither Party requested the Court to define the boundary more precisely with regard to this coast. Accordingly, the Court will refrain from doing so.”26 Clearly, the Court did not fix the limits of the ‘territory in dispute’. 27 2.17 This is confirmed by two declarations made by Judges Gevorgian and Guillaume. According to the latter: “18. Cette solution s’imposait d’autant plus que la Cour ne disposait pas de tous les éléments nécessaires pour se prononcer clairement. Elle a 23 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, para. 70. 24 Ibid. 25 Ibid. 26 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, paras. 69-70. 27 In the same vein see the Court’s Judgment in the Temple case – see above note 18. 10 d’ailleurs soigneusement évité de le faire. Tout en reconnaissant la souveraineté du Costa Rica sur le territoire litigieux, elle s’est en effet abstenue d’en fixer les limites. Elle a certes défini ce territoire comme ‘la partie septentrionale [d’]Isla Portillos … comprise entre la rive droite du caño litigieux, la rive droite du fleuve San Juan lui-même jusqu’à son embouchure dans la mer des Caraïbes et la lagune de Harbor Head’ (par. 69). Par voie de conséquence, elle a reconnu, en accord avec les Parties, la souveraineté du Nicaragua sur cette lagune et sur la formation sableuse qui en marque la limite. Elle a également constaté la souveraineté du Costa Rica sur le territoire litigieux. Mais elle a aussi relevé que les Parties avaient exprimé des vues divergentes sur la localisation de l’embouchure du fleuve San Juan dans la mer des Caraïbes sans aborder la question de son emplacement précis. Elle a par suite décidé de ne pas se prononcer sur ce point (par. 70). Elle a tenu le même raisonnement pour le segment de la côte caraïbe qui va de la lagune de Harbour Head à l’embouchure du San Juan (ibid.). 19. Je comprends les scrupules de la Cour sur ces deux derniers points. Le dossier est muet sur le premier et incomplet sur le second. Je note en particulier que le professeur Thorne, expert du Costa Rica, ne traite pas de cette seconde question dans son rapport. Le professeur Kondolf, expert du Nicaragua, précise par contre que ‘la lagune semble être reliée sous l’angle hydrologique à Greytown Harbor à l’ouest, via un chenal se trouvant derrière le cordon littoral’ (rapport figurant en appendice du contre-mémoire du Nicaragua, vol. I, sect. 2.7). En outre ce chenal apparaît sur certaines photos récentes. Enfin il figure sur les cartes les plus fiables produites par le Costa Rica. J’aurais par suite tendance à penser que la description des lieux faite par le Nicaragua est plus proche de la réalité que celle défendue par le Costa Rica. Le silence de la Cour n’en demeure pas moins compréhensible.”28 2.18 For his part, Judge Gevorgian noted: “5. First, the Parties did not address the issue of the precise location of the mouth of the river or of the boundary at the coast, as the Court majority rightly indicates in paragraph 70. Although, as stated above, Costa Rica’s final submission referred to the “disputed territory”, neither Party had submitted adequate information on its whole perimeter. The Judgment thus 28 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Declaration of Judge ad hoc Guillaume appended to the Judgment of 16 December 2015, paras. 18-19 – emphasis added. 11 deliberately refrained from establishing the geographical limits of the ‘disputed territory’ – an approach that is reflected in sketch-map No. 1. As a consequence, it is my view that the Court was not in a position to fully address Costa Rica’s final submission.”29 2.19 Nicaragua’s interpretation is also confirmed by the fact that the Certain Activities case was a responsibility case and not a delimitation case. In the Application, which contains the “subject of the dispute”30 and the “precise nature of the claim”, 31 Costa Rica explained that this “case concerns the incursion into, occupation of and use by Nicaragua’s army of Costa Rican territory as well as breaches of Nicaragua’s obligations towards Costa Rica.”32 Therefore, the identification of the “disputed territory” was simply ancillary to Costa Rica’s claim in the Certain Activities case. This is apparent in the Court’s 2015 Judgment. At paragraph 65 of its 2015 Judgment the Court noted that Costa Rica’s “claim is based on the premise that ‘[s]overeignty over the "disputed territory", as defined by the Court in its Orders of 8 March 2011 and 22 November 2013, belongs to the Republic of Costa Rica.’”33 Then at paragraph 69, the Court confirmed that “[s]ince it is uncontested that Nicaragua conducted certain activities in the disputed territory, it is necessary, in order to establish whether there was a breach of Costa Rica’s territorial sovereignty, to determine which State has sovereignty over that territory”34; but there was no need to determine the precise limits of the “disputed territory”. This explains why the Court did not precisely describe the boundary of the “disputed territory” for the purposes of the 29 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Declaration of Judge Gevorgian appended to the Judgment of 16 December 2015, para. 5 – Emphasis added. 30 Article 40(1) of the ICJ Statute. 31 Article 38(2) of the Rules of the ICJ. 32 Application of 18 November 2010, para. 1. 33 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, para. 65. 34 Ibid., para. 69. 10 d’ailleurs soigneusement évité de le faire. Tout en reconnaissant la souveraineté du Costa Rica sur le territoire litigieux, elle s’est en effet abstenue d’en fixer les limites. Elle a certes défini ce territoire comme ‘la partie septentrionale [d’]Isla Portillos … comprise entre la rive droite du caño litigieux, la rive droite du fleuve San Juan lui-même jusqu’à son embouchure dans la mer des Caraïbes et la lagune de Harbor Head’ (par. 69). Par voie de conséquence, elle a reconnu, en accord avec les Parties, la souveraineté du Nicaragua sur cette lagune et sur la formation sableuse qui en marque la limite. Elle a également constaté la souveraineté du Costa Rica sur le territoire litigieux. Mais elle a aussi relevé que les Parties avaient exprimé des vues divergentes sur la localisation de l’embouchure du fleuve San Juan dans la mer des Caraïbes sans aborder la question de son emplacement précis. Elle a par suite décidé de ne pas se prononcer sur ce point (par. 70). Elle a tenu le même raisonnement pour le segment de la côte caraïbe qui va de la lagune de Harbour Head à l’embouchure du San Juan (ibid.). 19. Je comprends les scrupules de la Cour sur ces deux derniers points. Le dossier est muet sur le premier et incomplet sur le second. Je note en particulier que le professeur Thorne, expert du Costa Rica, ne traite pas de cette seconde question dans son rapport. Le professeur Kondolf, expert du Nicaragua, précise par contre que ‘la lagune semble être reliée sous l’angle hydrologique à Greytown Harbor à l’ouest, via un chenal se trouvant derrière le cordon littoral’ (rapport figurant en appendice du contre-mémoire du Nicaragua, vol. I, sect. 2.7). En outre ce chenal apparaît sur certaines photos récentes. Enfin il figure sur les cartes les plus fiables produites par le Costa Rica. J’aurais par suite tendance à penser que la description des lieux faite par le Nicaragua est plus proche de la réalité que celle défendue par le Costa Rica. Le silence de la Cour n’en demeure pas moins compréhensible.”28 2.18 For his part, Judge Gevorgian noted: “5. First, the Parties did not address the issue of the precise location of the mouth of the river or of the boundary at the coast, as the Court majority rightly indicates in paragraph 70. Although, as stated above, Costa Rica’s final submission referred to the “disputed territory”, neither Party had submitted adequate information on its whole perimeter. The Judgment thus 28 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Declaration of Judge ad hoc Guillaume appended to the Judgment of 16 December 2015, paras. 18-19 – emphasis added. 11 deliberately refrained from establishing the geographical limits of the ‘disputed territory’ – an approach that is reflected in sketch-map No. 1. As a consequence, it is my view that the Court was not in a position to fully address Costa Rica’s final submission.”29 2.19 Nicaragua’s interpretation is also confirmed by the fact that the Certain Activities case was a responsibility case and not a delimitation case. In the Application, which contains the “subject of the dispute”30 and the “precise nature of the claim”, 31 Costa Rica explained that this “case concerns the incursion into, occupation of and use by Nicaragua’s army of Costa Rican territory as well as breaches of Nicaragua’s obligations towards Costa Rica.”32 Therefore, the identification of the “disputed territory” was simply ancillary to Costa Rica’s claim in the Certain Activities case. This is apparent in the Court’s 2015 Judgment. At paragraph 65 of its 2015 Judgment the Court noted that Costa Rica’s “claim is based on the premise that ‘[s]overeignty over the "disputed territory", as defined by the Court in its Orders of 8 March 2011 and 22 November 2013, belongs to the Republic of Costa Rica.’”33 Then at paragraph 69, the Court confirmed that “[s]ince it is uncontested that Nicaragua conducted certain activities in the disputed territory, it is necessary, in order to establish whether there was a breach of Costa Rica’s territorial sovereignty, to determine which State has sovereignty over that territory”34; but there was no need to determine the precise limits of the “disputed territory”. This explains why the Court did not precisely describe the boundary of the “disputed territory” for the purposes of the 29 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Declaration of Judge Gevorgian appended to the Judgment of 16 December 2015, para. 5 – Emphasis added. 30 Article 40(1) of the ICJ Statute. 31 Article 38(2) of the Rules of the ICJ. 32 Application of 18 November 2010, para. 1. 33 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, para. 65. 34 Ibid., para. 69. 12 Certain Activities case. The Court was simply not asked to determine the location of the land boundary between Nicaragua and Costa Rica: wherever the boundary might lie, the Court considered that the challenged activities took place on Costa Rican territory. 2.20 The reference, in paragraph 69 of the 2015 Judgment, to a military camp “located on the beach and close to the line of vegetation”35 does not help Costa Rica’s case. First, the camp at the heart of the present proceedings is not located in the same place as the camp the Court referred to in its 2015 Judgment. Second, paragraph 69 must be read with paragraph 70 which specifies that: - the Court’s description of the disputed territory did not refer specifically to the coast; and that - the Court refrained from defining the land boundary in the vicinity of that coast. B. The Impact of the Shifting Nature of the Course of the Land Boundary on the Court’s Task 2.21 In the 1858 Treaty of Limits, Nicaragua and Costa Rica agreed on a “shifting boundary”, which course would “change with the geography”36, as Nicaragua will recall in some detail in Chapter III below. 37 2.22 The consequence is straightforward. The precise course of the land boundary depends on the geographical situation on the ground and, therefore, must be ascertained each time a problem arises and at the time when the problem 35 Ibid. 36 CRM, para. 2.2. See also paras. 2.55 and 2.57. 37 See 3.10-3.17 below. 13 arises. 38 Absent a problem, such determination would be moot, in the sense that it would be made on day X, when no problem arises between the Parties, while it would still have to be made de novo on day Y, in order to settle a particular dispute. C. The Task of Court in the Present Case 2.23 In the present case, the Court is asked to determine whether the territory on which the contested military camp has been set up belongs to Nicaragua or Costa Rica. For this sole purpose, the Court must first identify the course of the land boundary between the Parties in the vicinity of the stretch of coast running from northwestern end of Harbor Head Lagoon to the mouth of the San Juan River as it is today. However, this finding will only be temporary in the sense that it will not affect the shifting character of the boundary. With the exception of the starting point of the boundary on the coast, which remains fixed,39 the course of the boundary may evolve in the future due to natural changes in the geography. 2.24 In Its Memorial, Costa Rica refers to the “primary land boundary terminus”40. This is misleading for at least three reasons. - First, there is no such thing as a “primary land boundary terminus”. Neither the 1858 of Limits and the Arbitral Awards of President Cleveland and General Alexander) nor general international law recognizes “primary” land boundary termini. - Second, if the Court were to accept Costa Rica’s position, there would be three land boundary termini on the Caribbean Sea defining different stretches of coasts belonging to one Party or the other, generating overlapping projections into the sea as shown on Figure 2.2 below. 38 See Second Award of the General E.P. Alexander in the boundary question between Costa Rica and Nicaragua U.N.R.I.A.A., Vol. XXVIII (2007) p. 224 (NCM Annex 2-3). 39 See Certain Activities, CRM, paras. 2.32. 40 CRM, fn. 24 – emphasis added; see also para. 2.8. 12 Certain Activities case. The Court was simply not asked to determine the location of the land boundary between Nicaragua and Costa Rica: wherever the boundary might lie, the Court considered that the challenged activities took place on Costa Rican territory. 2.20 The reference, in paragraph 69 of the 2015 Judgment, to a military camp “located on the beach and close to the line of vegetation”35 does not help Costa Rica’s case. First, the camp at the heart of the present proceedings is not located in the same place as the camp the Court referred to in its 2015 Judgment. Second, paragraph 69 must be read with paragraph 70 which specifies that: - the Court’s description of the disputed territory did not refer specifically to the coast; and that - the Court refrained from defining the land boundary in the vicinity of that coast. B. The Impact of the Shifting Nature of the Course of the Land Boundary on the Court’s Task 2.21 In the 1858 Treaty of Limits, Nicaragua and Costa Rica agreed on a “shifting boundary”, which course would “change with the geography”36, as Nicaragua will recall in some detail in Chapter III below. 37 2.22 The consequence is straightforward. The precise course of the land boundary depends on the geographical situation on the ground and, therefore, must be ascertained each time a problem arises and at the time when the problem 35 Ibid. 36 CRM, para. 2.2. See also paras. 2.55 and 2.57. 37 See 3.10-3.17 below. 13 arises. 38 Absent a problem, such determination would be moot, in the sense that it would be made on day X, when no problem arises between the Parties, while it would still have to be made de novo on day Y, in order to settle a particular dispute. C. The Task of Court in the Present Case 2.23 In the present case, the Court is asked to determine whether the territory on which the contested military camp has been set up belongs to Nicaragua or Costa Rica. For this sole purpose, the Court must first identify the course of the land boundary between the Parties in the vicinity of the stretch of coast running from northwestern end of Harbor Head Lagoon to the mouth of the San Juan River as it is today. However, this finding will only be temporary in the sense that it will not affect the shifting character of the boundary. With the exception of the starting point of the boundary on the coast, which remains fixed,39 the course of the boundary may evolve in the future due to natural changes in the geography. 2.24 In Its Memorial, Costa Rica refers to the “primary land boundary terminus”40. This is misleading for at least three reasons. - First, there is no such thing as a “primary land boundary terminus”. Neither the 1858 of Limits and the Arbitral Awards of President Cleveland and General Alexander) nor general international law recognizes “primary” land boundary termini. - Second, if the Court were to accept Costa Rica’s position, there would be three land boundary termini on the Caribbean Sea defining different stretches of coasts belonging to one Party or the other, generating overlapping projections into the sea as shown on Figure 2.2 below. 38 See Second Award of the General E.P. Alexander in the boundary question between Costa Rica and Nicaragua U.N.R.I.A.A., Vol. XXVIII (2007) p. 224 (NCM Annex 2-3). 39 See Certain Activities, CRM, paras. 2.32. 40 CRM, fn. 24 – emphasis added; see also para. 2.8. 14 Figure 2.2 Costa Rica’s Three Land Boundary Termini and the Enclaved Lagoon This would be unusual and certainly does not accord with the reasoning of General Alexander; and - Third, in reality, there is only one boundary terminus, which is the one identified by General Alexander in his First Award. 41 2.25 For the reasons exposed in the present Chapter, if the Court were to uphold Costa Rica’s request for a verbal description of the boundary,42 (which does not seem to be essential in order to decide on Costa Rica’s submissions), it need do no more than reproduce the ‘Alexander’ formula according to which the “boundary line must necessarily be affected in future by all these gradual or sudden changes. But the impact in each case can only be determined by the circumstances of the 41 See paras. 3.3-3.8 below. 42 See CRM, Submission (a). See also paras. 2.2. and 2.57-2.58. 15 case itself, on a case-by-case basis in accordance with such principles of international law as may be applicable.”43 This verbal description was given in the Alexander Awards and is res judicata. 44 43 Second Award of General E.P. Alexander in the boundary question between Costa Rica and Nicaragua U.N.R.I.A.A., Vol. XXVIII (2007) p. 224 (NCM Annex 2-3). 44 See para. 3.14 below. 14 Figure 2.2 Costa Rica’s Three Land Boundary Termini and the Enclaved Lagoon This would be unusual and certainly does not accord with the reasoning of General Alexander; and - Third, in reality, there is only one boundary terminus, which is the one identified by General Alexander in his First Award. 41 2.25 For the reasons exposed in the present Chapter, if the Court were to uphold Costa Rica’s request for a verbal description of the boundary,42 (which does not seem to be essential in order to decide on Costa Rica’s submissions), it need do no more than reproduce the ‘Alexander’ formula according to which the “boundary line must necessarily be affected in future by all these gradual or sudden changes. But the impact in each case can only be determined by the circumstances of the 41 See paras. 3.3-3.8 below. 42 See CRM, Submission (a). See also paras. 2.2. and 2.57-2.58. 15 case itself, on a case-by-case basis in accordance with such principles of international law as may be applicable.”43 This verbal description was given in the Alexander Awards and is res judicata. 44 43 Second Award of General E.P. Alexander in the boundary question between Costa Rica and Nicaragua U.N.R.I.A.A., Vol. XXVIII (2007) p. 224 (NCM Annex 2-3). 44 See para. 3.14 below. 16 17 CHAPTER III. THE APPLICABLE PRINCIPLES TO THE DETERMINATION OF THE COURSE OF THE LAND BOUNDARY 3.1 The Parties agree that the law applicable to the determination of the course of the land boundary is the 1858 Treaty of Limits as interpreted by the Cleveland and Alexander Awards.45 The Court is now familiar with the 1858 Treaty of Limits and its arbitral interpretations. Nicaragua has analysed these instruments in the context of the Certain Activities case.46 The Court itself has interpreted them in that case.47 For these reasons, Nicaragua will limit itself to the points which are directly relevant to the present case: the methodology to be applied in order to determine the course of the boundary (A.), the shifting character of the land boundary between Nicaragua and Costa Rica (B.) with the exception of its starting-point which has been fixed ne varietur (C.). A. General Alexander’s Methodology 3.2 The land boundary between Nicaragua and Costa Rica was determined in Article II of the 1858 Treaty of Limits, which provides that: “The dividing line between the two Republics, starting from the Northern Sea, shall begin at the end of Punta de Castilla, at the mouth of the San Juan de Nicaragua river, and shall run along the right bank of the said river up to a point three English miles distant from Castillo Viejo, said distance 45 See CRM, para. 2.43. See also Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, para. 71. 46 See in Certain Activities case, NCM, pp. 29-36 and 51-60 and CR 2015/5, 16 April 2015, pp. 12-18, paras. 1-11 (Pellet). 47 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, paras. 71-76. 16 17 CHAPTER III. THE APPLICABLE PRINCIPLES TO THE DETERMINATION OF THE COURSE OF THE LAND BOUNDARY 3.1 The Parties agree that the law applicable to the determination of the course of the land boundary is the 1858 Treaty of Limits as interpreted by the Cleveland and Alexander Awards.45 The Court is now familiar with the 1858 Treaty of Limits and its arbitral interpretations. Nicaragua has analysed these instruments in the context of the Certain Activities case.46 The Court itself has interpreted them in that case.47 For these reasons, Nicaragua will limit itself to the points which are directly relevant to the present case: the methodology to be applied in order to determine the course of the boundary (A.), the shifting character of the land boundary between Nicaragua and Costa Rica (B.) with the exception of its starting-point which has been fixed ne varietur (C.). A. General Alexander’s Methodology 3.2 The land boundary between Nicaragua and Costa Rica was determined in Article II of the 1858 Treaty of Limits, which provides that: “The dividing line between the two Republics, starting from the Northern Sea, shall begin at the end of Punta de Castilla, at the mouth of the San Juan de Nicaragua river, and shall run along the right bank of the said river up to a point three English miles distant from Castillo Viejo, said distance 45 See CRM, para. 2.43. See also Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, para. 71. 46 See in Certain Activities case, NCM, pp. 29-36 and 51-60 and CR 2015/5, 16 April 2015, pp. 12-18, paras. 1-11 (Pellet). 47 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, paras. 71-76. 18 to be measured between the exterior works of said castle and the abovenamed point […]”48 3.3 In 1888, US President Grover Cleveland was asked to settle several points of disagreement between the Parties. On this occasion, he clarified the location of the starting point of the land boundary. In his Award, President Cleveland decided that: “The boundary line between the Republics of Costa Rica and Nicaragua, on the Atlantic side, begins at the extremity of Punta de Castilla at the mouth of the San Juan de Nicaragua River, as they both existed on the l5th day of April 1858. The ownership of any accretion to said Punta de Castilla is to be governed by the laws applicable to that subject.”49 3.4 Eight years later, the Parties concluded the Pacheco-Matus Convention on border demarcation “for the purpose of duly defining and marking out the dividing line between the Republics of Costa Rica and Nicaragua according to the stipulations of the Treaty of 15 April 1858” and the 1888 Cleveland Award.50 In accordance with this Convention, General Alexander was appointed by the President of the United States and given “broad powers to decide whatever kind of differences may arise in the course of any operations and his ruling shall be final.”51 General Alexander rendered five awards, the first of which is controlling and has the status of res judicata in the present case. 3.5 In his first Award, General Alexander began by identifying the general quid pro quo reached by Nicaragua and Costa Rica in the 1858 Treaty of Limits. He summarized it as follows. 48 Jerez-Cañas Treaty of Limits of 15 April 1858, Article II (Annex NCM 1). 49 Award of the Arbitrator, the President of the United States, upon the validity of the Treaty of Limits of 1858 between Nicaragua and Costa Rica, 22 March 1888, UNRIAA, Vol. XXVIII, p. 209, point 3(1) (Annex NCM 2-1). 50 27 March 1896, Article I, UNRIAA, Vol. XXVIII, pp. 211-212. See the CRM, Annex 47. 51 Ibid., p. 211. 19 “Costa Rica was to have as a boundary line the right or southeast bank of the river, considered as an outlet for commerce, from a point 3 miles below Castillo to the sea. Nicaragua was to have her prized ‘sumo imperio’ of all the waters of this same outlet for commerce, also unbroken to the sea. It is to be noted that this division implied also, of course, the ownership by Nicaragua of all islands in the river and of the left or northwest bank and headland.”52 He added that “there is but one starting point” and “that is at the right headland of the bay.”53 3.6 General Alexander then indicated that: “Having then designated generally the mainland east of Harbor Head as the location of the initial point of the boundary line, it now becomes necessary to specify more minutely, in order that the said line may be exactly located and permanently marked. The exact location of the initial point is given in President Cleveland’s award as the ‘extremity of Punta de Castilla, at the mouth of the San Juan de Nicaragua River, as they both existed on the 15th of April 1858’.”54 3.7 Acting in 1897, General Alexander noted that: “A careful study of all available maps and comparisons between those made before the treaty and those of recent date made by boards of engineers and officers of the canal company, and one of to-day made by yourselves to accompany this award, makes very clear one fact: The exact spot which was the extremity of the headland of Punta de Castilla April 15, 1858, has long been swept over by the Caribbean Sea, and there is too little concurrence in the shore outline of the old maps to permit any certainty of statement of distance or exact direction to it from the present headland. It was somewhere to the northeastward, and probably between 52 First Award of the General E.P. Alexander in the boundary question between Costa Rica and Nicaragua U.N.R.I.A.A., Vol. XXVIII (2007) p. 217 (NCM Annex 2-2). 53 Ibid. The ‘right headland’ is the eastern headland of the Harbor Head Lagoon. 54 Ibid., pp. 219-220. 18 to be measured between the exterior works of said castle and the abovenamed point […]”48 3.3 In 1888, US President Grover Cleveland was asked to settle several points of disagreement between the Parties. On this occasion, he clarified the location of the starting point of the land boundary. In his Award, President Cleveland decided that: “The boundary line between the Republics of Costa Rica and Nicaragua, on the Atlantic side, begins at the extremity of Punta de Castilla at the mouth of the San Juan de Nicaragua River, as they both existed on the l5th day of April 1858. The ownership of any accretion to said Punta de Castilla is to be governed by the laws applicable to that subject.”49 3.4 Eight years later, the Parties concluded the Pacheco-Matus Convention on border demarcation “for the purpose of duly defining and marking out the dividing line between the Republics of Costa Rica and Nicaragua according to the stipulations of the Treaty of 15 April 1858” and the 1888 Cleveland Award.50 In accordance with this Convention, General Alexander was appointed by the President of the United States and given “broad powers to decide whatever kind of differences may arise in the course of any operations and his ruling shall be final.”51 General Alexander rendered five awards, the first of which is controlling and has the status of res judicata in the present case. 3.5 In his first Award, General Alexander began by identifying the general quid pro quo reached by Nicaragua and Costa Rica in the 1858 Treaty of Limits. He summarized it as follows. 48 Jerez-Cañas Treaty of Limits of 15 April 1858, Article II (Annex NCM 1). 49 Award of the Arbitrator, the President of the United States, upon the validity of the Treaty of Limits of 1858 between Nicaragua and Costa Rica, 22 March 1888, UNRIAA, Vol. XXVIII, p. 209, point 3(1) (Annex NCM 2-1). 50 27 March 1896, Article I, UNRIAA, Vol. XXVIII, pp. 211-212. See the CRM, Annex 47. 51 Ibid., p. 211. 19 “Costa Rica was to have as a boundary line the right or southeast bank of the river, considered as an outlet for commerce, from a point 3 miles below Castillo to the sea. Nicaragua was to have her prized ‘sumo imperio’ of all the waters of this same outlet for commerce, also unbroken to the sea. It is to be noted that this division implied also, of course, the ownership by Nicaragua of all islands in the river and of the left or northwest bank and headland.”52 He added that “there is but one starting point” and “that is at the right headland of the bay.”53 3.6 General Alexander then indicated that: “Having then designated generally the mainland east of Harbor Head as the location of the initial point of the boundary line, it now becomes necessary to specify more minutely, in order that the said line may be exactly located and permanently marked. The exact location of the initial point is given in President Cleveland’s award as the ‘extremity of Punta de Castilla, at the mouth of the San Juan de Nicaragua River, as they both existed on the 15th of April 1858’.”54 3.7 Acting in 1897, General Alexander noted that: “A careful study of all available maps and comparisons between those made before the treaty and those of recent date made by boards of engineers and officers of the canal company, and one of to-day made by yourselves to accompany this award, makes very clear one fact: The exact spot which was the extremity of the headland of Punta de Castilla April 15, 1858, has long been swept over by the Caribbean Sea, and there is too little concurrence in the shore outline of the old maps to permit any certainty of statement of distance or exact direction to it from the present headland. It was somewhere to the northeastward, and probably between 52 First Award of the General E.P. Alexander in the boundary question between Costa Rica and Nicaragua U.N.R.I.A.A., Vol. XXVIII (2007) p. 217 (NCM Annex 2-2). 53 Ibid. The ‘right headland’ is the eastern headland of the Harbor Head Lagoon. 54 Ibid., pp. 219-220. 20 600 and 1,600 feet distant, but it cannot now be certainly located. Under these circumstances it best fulfills the demands of the treaty and of President Cleveland’s award to adopt what is practically the headland of to-day, or the northwestern extremity of what seems to be the solid land, on the east side of Harbor Head Lagoon.”55 3.8 As the Court recorded in its 2015 Judgment, General Alexander “then defined the initial part of the boundary starting from the Caribbean Sea in the following terms:”56 “I have accordingly made personal inspection of this ground, and declare the initial line of the boundary to run as follows, to wit: Its direction shall be due northeast and southwest, across the bank of sand, from the Caribbean Sea into the waters of Harbor Head Lagoon. It shall pass, at its nearest point, 300 feet on the northwest side from the small hut now standing in that vicinity. On reaching the waters of Harbor Head Lagoon the boundary line shall turn to the left, or southeastward, and shall follow the water’s edge around the harbor until it reaches the river proper by the first channel met. Up this channel, and up the river proper, the line shall continue to ascend as directed in the treaty.”57 3.9 This is the methodology to be followed in order to determine the course of the land boundary in the vicinity of “the stretch of coast abutting the Caribbean Sea which lies between the Harbor Head Lagoon, which lagoon both Parties agree is Nicaraguan, and the mouth of the San Juan River”,58 a determination which the 55 Ibid., p. 220. 56 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, para. 73. 57 First Award of the General E.P. Alexander in the boundary question between Costa Rica and Nicaragua U.N.R.I.A.A., Vol. XXVIII (2007) p. 220 (NCM Annex 2-2). 58 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, para. 73. 21 Court refrained from making in its 2015 Judgment.59 This determination is dependent on the geographical situation on the ground. 60 Figure 3.1 Sketch Map attached to the First Alexander Award, 1897 B. The Shifting Nature of the Land Boundary 3.10 As explained in Chapter II above, the Parties now agree that the land boundary has a fixed and immovable starting point but that the precise course of the boundary will change with geography.61 In the present Section, Nicaragua will simply recall that the Parties agreed on a shifting land boundary, with the sole exception of its starting-point. 59 Ibid. See paras. 2.6-2.20 above. 60 See paras. 4.3-4.21 below. 61 See paras. 2.21-2.22 above. 20 600 and 1,600 feet distant, but it cannot now be certainly located. Under these circumstances it best fulfills the demands of the treaty and of President Cleveland’s award to adopt what is practically the headland of to-day, or the northwestern extremity of what seems to be the solid land, on the east side of Harbor Head Lagoon.”55 3.8 As the Court recorded in its 2015 Judgment, General Alexander “then defined the initial part of the boundary starting from the Caribbean Sea in the following terms:”56 “I have accordingly made personal inspection of this ground, and declare the initial line of the boundary to run as follows, to wit: Its direction shall be due northeast and southwest, across the bank of sand, from the Caribbean Sea into the waters of Harbor Head Lagoon. It shall pass, at its nearest point, 300 feet on the northwest side from the small hut now standing in that vicinity. On reaching the waters of Harbor Head Lagoon the boundary line shall turn to the left, or southeastward, and shall follow the water’s edge around the harbor until it reaches the river proper by the first channel met. Up this channel, and up the river proper, the line shall continue to ascend as directed in the treaty.”57 3.9 This is the methodology to be followed in order to determine the course of the land boundary in the vicinity of “the stretch of coast abutting the Caribbean Sea which lies between the Harbor Head Lagoon, which lagoon both Parties agree is Nicaraguan, and the mouth of the San Juan River”,58 a determination which the 55 Ibid., p. 220. 56 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, para. 73. 57 First Award of the General E.P. Alexander in the boundary question between Costa Rica and Nicaragua U.N.R.I.A.A., Vol. XXVIII (2007) p. 220 (NCM Annex 2-2). 58 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, para. 73. 21 Court refrained from making in its 2015 Judgment.59 This determination is dependent on the geographical situation on the ground. 60 Figure 3.1 Sketch Map attached to the First Alexander Award, 1897 B. The Shifting Nature of the Land Boundary 3.10 As explained in Chapter II above, the Parties now agree that the land boundary has a fixed and immovable starting point but that the precise course of the boundary will change with geography.61 In the present Section, Nicaragua will simply recall that the Parties agreed on a shifting land boundary, with the sole exception of its starting-point. 59 Ibid. See paras. 2.6-2.20 above. 60 See paras. 4.3-4.21 below. 61 See paras. 2.21-2.22 above. 22 3.11 The shifting character of the San Juan River was recognised by General Alexander in his second Award interpreting the 1858 Treaty of Limits, rendered on 20 December 1897.62 3.12 General Alexander’s Second Award settled the following disagreement between Nicaragua and Costa Rica: “The Costa Rican Commission proposed that we proceed to the measurement of the line that ran from the starting point and continued along the shore of Harbor Head and thence along the shore around the harbor until it reaches the San Juan river proper by the first channel met and thence along the bank of the river to a point three miles below Castillo Viejo and that a map should be made of such line and that all of that should be set down in the daily record. The Nicaraguan Commission expressed the view that the measurement and mapping work on that portion of the line was pointless and worthless because, according to the Award by General E. P. Alexander, the left bank of the Harbor and of the river formed the boundary and that therefore the dividing line was subject to change and not permanent. Therefore, the map and any data obtained shall never correspond to the actual dividing line. To that end, the two Commissions have decided to hear the decision that the arbitrator would render within a week to their respective arguments submitted to him on that question.”63 3.13 “For a clearer understanding of the question at hand,” General Alexander noted that “the San Juan river runs through a flat and sandy delta in the lower portion of its course and that it is obviously possible that its banks will not only gradually expand or contract but that there will be wholesale changes in its channels. Such changes may occur fairly rapidly and suddenly and may not always be the result of unusual factors such as earthquakes or major storms. Examples abound of previous channels now abandoned and banks that are now changing as a result of gradual expansions or contractions.”64 62 Second Award of the General E.P. Alexander in the boundary question between Costa Rica and Nicaragua U.N.R.I.A.A., Vol. XXVIII (2007) pp. 223-225 (Annex NCM 2-3). 63 Ibid., pp. 223-224. 64 Ibid., p. 224. 23 3.14 General Alexander then unambiguously concluded that: “Today’s boundary line must necessarily be affected in future by all these gradual or sudden changes. But the impact in each case can only be determined by the circumstances of the case itself, on a case-by-case basis in accordance with such principles of international law as may be applicable.”65 3.15 In the Certain Activities case, the Parties discussed the shifting character of the land boundary. During the oral hearings, Nicaragua stated that “it is entirely clear therefore that, in the spirit of Alexander, what we have here is a mobile boundary, which must change according to the long-term fluctuations of the river and its channels.”66 For its part, Costa Rica showed some discomfort. While criticizing Nicaragua for allegedly despising the principle of stability of boundaries,67 Costa Rica nevertheless explained that, due to geographical changes, the course of the boundary in the vicinity of the mouth of the San Juan River and Harbor Head Lagoon had changed.68 3.16 In any event, Costa Rica has now come to fully accept Nicaragua’s position. In its Memorial in the present case, Costa Rica clearly explains that: “considering that the coastal geography in this area is likely to continue to undergo change, describing the requested boundary with specific coordinates is not appropriate, and rather a verbal description is sufficiently precise, and would allow the line to change with the geography, as envisioned in the Second Alexander Award.”69 65 Ibid. As Costa Rica notes (CRM, para. 2.47), this conclusion was recorded by the Court in its 16 December 2015 Judgment (para. 74). 66 CR 2015/5, 16 April 2015, p. 17, para. 10 (Pellet). 67 CR 2015/14, 28 April 2015, p. 23 (Kohen). 68 Ibid., pp. 24-26, paras. 20-27 (Kohen). 69 CRM, para. 2.2. See also paras. 2.55 and 2.57. 22 3.11 The shifting character of the San Juan River was recognised by General Alexander in his second Award interpreting the 1858 Treaty of Limits, rendered on 20 December 1897.62 3.12 General Alexander’s Second Award settled the following disagreement between Nicaragua and Costa Rica: “The Costa Rican Commission proposed that we proceed to the measurement of the line that ran from the starting point and continued along the shore of Harbor Head and thence along the shore around the harbor until it reaches the San Juan river proper by the first channel met and thence along the bank of the river to a point three miles below Castillo Viejo and that a map should be made of such line and that all of that should be set down in the daily record. The Nicaraguan Commission expressed the view that the measurement and mapping work on that portion of the line was pointless and worthless because, according to the Award by General E. P. Alexander, the left bank of the Harbor and of the river formed the boundary and that therefore the dividing line was subject to change and not permanent. Therefore, the map and any data obtained shall never correspond to the actual dividing line. To that end, the two Commissions have decided to hear the decision that the arbitrator would render within a week to their respective arguments submitted to him on that question.”63 3.13 “For a clearer understanding of the question at hand,” General Alexander noted that “the San Juan river runs through a flat and sandy delta in the lower portion of its course and that it is obviously possible that its banks will not only gradually expand or contract but that there will be wholesale changes in its channels. Such changes may occur fairly rapidly and suddenly and may not always be the result of unusual factors such as earthquakes or major storms. Examples abound of previous channels now abandoned and banks that are now changing as a result of gradual expansions or contractions.”64 62 Second Award of the General E.P. Alexander in the boundary question between Costa Rica and Nicaragua U.N.R.I.A.A., Vol. XXVIII (2007) pp. 223-225 (Annex NCM 2-3). 63 Ibid., pp. 223-224. 64 Ibid., p. 224. 23 3.14 General Alexander then unambiguously concluded that: “Today’s boundary line must necessarily be affected in future by all these gradual or sudden changes. But the impact in each case can only be determined by the circumstances of the case itself, on a case-by-case basis in accordance with such principles of international law as may be applicable.”65 3.15 In the Certain Activities case, the Parties discussed the shifting character of the land boundary. During the oral hearings, Nicaragua stated that “it is entirely clear therefore that, in the spirit of Alexander, what we have here is a mobile boundary, which must change according to the long-term fluctuations of the river and its channels.”66 For its part, Costa Rica showed some discomfort. While criticizing Nicaragua for allegedly despising the principle of stability of boundaries,67 Costa Rica nevertheless explained that, due to geographical changes, the course of the boundary in the vicinity of the mouth of the San Juan River and Harbor Head Lagoon had changed.68 3.16 In any event, Costa Rica has now come to fully accept Nicaragua’s position. In its Memorial in the present case, Costa Rica clearly explains that: “considering that the coastal geography in this area is likely to continue to undergo change, describing the requested boundary with specific coordinates is not appropriate, and rather a verbal description is sufficiently precise, and would allow the line to change with the geography, as envisioned in the Second Alexander Award.”69 65 Ibid. As Costa Rica notes (CRM, para. 2.47), this conclusion was recorded by the Court in its 16 December 2015 Judgment (para. 74). 66 CR 2015/5, 16 April 2015, p. 17, para. 10 (Pellet). 67 CR 2015/14, 28 April 2015, p. 23 (Kohen). 68 Ibid., pp. 24-26, paras. 20-27 (Kohen). 69 CRM, para. 2.2. See also paras. 2.55 and 2.57. 24 3.17 Therefore, it is apparent that the Parties are now in agreement on this issue. C. The Starting-Point of the Land-Boundary Has Been Fixed Ne Varietur 3.18 As was noted above,70 there is an exception to the shifting character of the land boundary: its starting-point was agreed to be a fixed point. The possibility of changes in the course of the boundary, where the right margin of the River constituted the boundary, did not include the starting point. 3.19 The Treaty of Limits of 1858, the Cleveland Award of 1888 and the first two Alexander Awards of September 30, 1897 and of December 20, 1897, clearly indicate that the starting point of the delimitation was considered to be a fixed point located in Punta de Castilla, whereas the course of the boundary from that point onwards could change with the changing course of the River. 3.20 The Award of President Cleveland of 22 March 1888 is unambiguous on this point. He declared in Point 3(1), of his decisions on the questions put by Nicaragua, that “The boundary line between the Republics of Costa Rica and Nicaragua, on the Atlantic side, begins at the extremity of Punta de Castilla at the mouth of the San Juan de Nicaragua River, as they both existed on the 15th day of April 1858.”71 3.21 President Cleveland did not decide that the starting point of the boundary starts at the mouth of the River. He decided that it is located at the extremity of Punta de Castilla at the mouth of the San Juan de Nicaragua River, as they both 70 See para. 2.23 above. 71 Award of the Arbitrator, the President of the United States, upon the validity of the Treaty of Limits of 1858 between Nicaragua and Costa Rica, 22 March 1888, UNRIAA, Vol. XXVIII, p. 209, point 3(1) (NCM Annex 1) (emphasis added). 25 existed on the 15th day of April 1858. That is, at a fixed unmovable point that does not shift following any changes in the River mouth. 3.22 When the question of the starting point of the demarcation was before General Alexander, the situation became completely clear. The first Award of 30 September 1897 deals with this question. The Court will not find in that Award any indication that Alexander was looking for the mouth of the River as it then stood. In contrast, his Award goes to great lengths to find where Punta de Castilla was located, because that was the fixed starting point for the border. That is the reason why General Alexander took great pains in identifying the approximate location of Punta de Castilla out at sea. Naturally, he was not looking for the River’s mouth out at sea. That is why Alexander took the trouble to set markers and identify the location of the starting point, although no other markers or permanent location identifiers were placed or made for the nearly 150 kilometres through which the border followed the meanderings of the River. 3.23 As Nicaragua explained in its Counter-Memorial in the case concerning the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean, there are “more than sufficient indications to identify with a great degree of precision and certainty the location of the point where the land boundary ends at the Caribbean Sea after crossing the bank of sand separating Harbor Head Lagoon from the sea Taking Punta Castilla as the corner of Harbor Head Lagoon on the edge of the forest, the land boundary must be extended in an approximate North-East direction until it hits the low water line about 50 meters further, which represents the width of the beach Accordingly, the end point of the land boundary, which is also the starting point of the sea delimitation is located at 10° 55’ 49 7”North and 83° 40’ 0 6” West.”72 72 NCM in the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) case, para. 3.48. 24 3.17 Therefore, it is apparent that the Parties are now in agreement on this issue. C. The Starting-Point of the Land-Boundary Has Been Fixed Ne Varietur 3.18 As was noted above,70 there is an exception to the shifting character of the land boundary: its starting-point was agreed to be a fixed point. The possibility of changes in the course of the boundary, where the right margin of the River constituted the boundary, did not include the starting point. 3.19 The Treaty of Limits of 1858, the Cleveland Award of 1888 and the first two Alexander Awards of September 30, 1897 and of December 20, 1897, clearly indicate that the starting point of the delimitation was considered to be a fixed point located in Punta de Castilla, whereas the course of the boundary from that point onwards could change with the changing course of the River. 3.20 The Award of President Cleveland of 22 March 1888 is unambiguous on this point. He declared in Point 3(1), of his decisions on the questions put by Nicaragua, that “The boundary line between the Republics of Costa Rica and Nicaragua, on the Atlantic side, begins at the extremity of Punta de Castilla at the mouth of the San Juan de Nicaragua River, as they both existed on the 15th day of April 1858.”71 3.21 President Cleveland did not decide that the starting point of the boundary starts at the mouth of the River. He decided that it is located at the extremity of Punta de Castilla at the mouth of the San Juan de Nicaragua River, as they both 70 See para. 2.23 above. 71 Award of the Arbitrator, the President of the United States, upon the validity of the Treaty of Limits of 1858 between Nicaragua and Costa Rica, 22 March 1888, UNRIAA, Vol. XXVIII, p. 209, point 3(1) (NCM Annex 1) (emphasis added). 25 existed on the 15th day of April 1858. That is, at a fixed unmovable point that does not shift following any changes in the River mouth. 3.22 When the question of the starting point of the demarcation was before General Alexander, the situation became completely clear. The first Award of 30 September 1897 deals with this question. The Court will not find in that Award any indication that Alexander was looking for the mouth of the River as it then stood. In contrast, his Award goes to great lengths to find where Punta de Castilla was located, because that was the fixed starting point for the border. That is the reason why General Alexander took great pains in identifying the approximate location of Punta de Castilla out at sea. Naturally, he was not looking for the River’s mouth out at sea. That is why Alexander took the trouble to set markers and identify the location of the starting point, although no other markers or permanent location identifiers were placed or made for the nearly 150 kilometres through which the border followed the meanderings of the River. 3.23 As Nicaragua explained in its Counter-Memorial in the case concerning the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean, there are “more than sufficient indications to identify with a great degree of precision and certainty the location of the point where the land boundary ends at the Caribbean Sea after crossing the bank of sand separating Harbor Head Lagoon from the sea Taking Punta Castilla as the corner of Harbor Head Lagoon on the edge of the forest, the land boundary must be extended in an approximate North-East direction until it hits the low water line about 50 meters further, which represents the width of the beach Accordingly, the end point of the land boundary, which is also the starting point of the sea delimitation is located at 10° 55’ 49 7”North and 83° 40’ 0 6” West.”72 72 NCM in the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) case, para. 3.48. 26 27 CHAPTER IV. THE MILITARY CAMP IS LOCATED ON NICARAGUAN TERRITORY 4.1 As explained in Chapter II, in the present case, the Court must ascertain today’s location of the land boundary between Nicaragua and Costa Rica (Section 1) in order to determine whether the contested military camp has been installed on Nicaraguan territory or on Costa Rican Territory (Section 2). Nicaragua submits that the military camp is located on its territory. Section 1. The Course of the Land Boundary between Harbor Head Lagoon and the Mouth of the San Juan River 4.2 The course of the boundary today will be determined by applying the relevant provisions of the relevant instruments – that is the 1858 Treaty of Limits as interpreted by the Cleveland and Alexander Awards – to the current geographical situation. Nicaragua will show that the land boundary follows the right bank of the San Juan River from its starting point at Punta Castilla without interruption (A.). Nicaragua’s demonstration is supported by Costa Rica’s longstanding views on this issue (B.). A. Application of General Alexander’s Methodology on the Ground 4.3 The Parties agree that important geographical changes have occurred since the signing of Jerez-Cañas Treaty on 15 April 1858.73 However, they disagree on the consequences of these changes on the situation on the ground today. 4.4 On the basis of a satellite image of 3 October 2016,74 Costa Rica argues that: 73 See e.g. CRM, paras. 2.5 and 2.52. 26 27 CHAPTER IV. THE MILITARY CAMP IS LOCATED ON NICARAGUAN TERRITORY 4.1 As explained in Chapter II, in the present case, the Court must ascertain today’s location of the land boundary between Nicaragua and Costa Rica (Section 1) in order to determine whether the contested military camp has been installed on Nicaraguan territory or on Costa Rican Territory (Section 2). Nicaragua submits that the military camp is located on its territory. Section 1. The Course of the Land Boundary between Harbor Head Lagoon and the Mouth of the San Juan River 4.2 The course of the boundary today will be determined by applying the relevant provisions of the relevant instruments – that is the 1858 Treaty of Limits as interpreted by the Cleveland and Alexander Awards – to the current geographical situation. Nicaragua will show that the land boundary follows the right bank of the San Juan River from its starting point at Punta Castilla without interruption (A.). Nicaragua’s demonstration is supported by Costa Rica’s longstanding views on this issue (B.). A. Application of General Alexander’s Methodology on the Ground 4.3 The Parties agree that important geographical changes have occurred since the signing of Jerez-Cañas Treaty on 15 April 1858.73 However, they disagree on the consequences of these changes on the situation on the ground today. 4.4 On the basis of a satellite image of 3 October 2016,74 Costa Rica argues that: 73 See e.g. CRM, paras. 2.5 and 2.52. 28 “(a) First, the San Juan River clearly flows directly into the Caribbean Sea. (b) Second, the channel that once connected the River with the lagoon has disappeared completely with the total erosion of what once formed the left/northern bank of that channel. (c) Third, Los Portillos/Harbor Head Lagoon is now closed by a narrow sandbar stretching between the solid land of Isla Portillos on the east side of the Lagoon and the solid land of Isla Portillos on the west side of the Lagoon. (d) Fourth, the entire stretch of the coast of Isla Portillos from the mouth of the San Juan River to Los Portillos/Harbor Head Lagoon abuts directly on the Caribbean Sea.”75 Figure 4.1 October 2016 Satellite Image used by Costa Rica 4.5 This description of the situation on the ground calls for several remarks. 4.6 First, this satellite image was taken late in the dry season in Nicaragua and Costa Rica and does not reflect a permanent situation. During the arbitration of 74 CRM, figure 2.1. 75 CRM, para. 2.7. 29 General Alexander (first award), a similar situation occurred. Costa Rica had claimed that the Island of San Juan76 on the date of signing the Treaty on April 15, 1858 (the dry season), had become part of the coast of Costa Rica since “a connection existed between the island and the eastern headland, and that this converted the island into mainland.”77. Alexander denied this claim, stating that even if it were true that in April 1858 the island was connected to the mainland “it would be unreasonable to suppose that such temporary connection could operate to change permanently the geographical character and political ownership of the island.”78 The same is true today both concerning the situation of the island and of the sand bar. 4.7 Second, the lower San Juan now flows directly into the Caribbean Sea (see Figure 4.2). This has been the case for at least 50 years79. Yet, as shown below,80 Costa Rica never questioned the course of the land boundary along the channel connecting the lower San Juan with Harbor Head Lagoon. This contradicts directly Costa Rica’s position in the present case, which now says that the boundary is composed of two segments.81 76 This island is depicted by Alexander as “[t]he great feature in the local geography of this bay, since our earliest accounts of it, has been the existence of an island in its outlet, called on some early maps the island of San Juan.” This island still exists and it is depicted as Nicaraguan in all the Costa Rican cartography filed with the Court up to the end of 2011. 77 First Award of the General E.P. Alexander in the boundary question between Costa Rica and Nicaragua U.N.R.I.A.A., Vol. XXVIII (2007) p. 218 (NCM Annex 2-2). 78 Ibid. 79 See the Counter Memorial of Nicaragua in the dispute concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Volume IV, Photographs/Satellite Image/Aerial Images. 80 See paras. 4.22-4.31 below. 81 See CRM, p. 16, Figure 2.4. 28 “(a) First, the San Juan River clearly flows directly into the Caribbean Sea. (b) Second, the channel that once connected the River with the lagoon has disappeared completely with the total erosion of what once formed the left/northern bank of that channel. (c) Third, Los Portillos/Harbor Head Lagoon is now closed by a narrow sandbar stretching between the solid land of Isla Portillos on the east side of the Lagoon and the solid land of Isla Portillos on the west side of the Lagoon. (d) Fourth, the entire stretch of the coast of Isla Portillos from the mouth of the San Juan River to Los Portillos/Harbor Head Lagoon abuts directly on the Caribbean Sea.”75 Figure 4.1 October 2016 Satellite Image used by Costa Rica 4.5 This description of the situation on the ground calls for several remarks. 4.6 First, this satellite image was taken late in the dry season in Nicaragua and Costa Rica and does not reflect a permanent situation. During the arbitration of 74 CRM, figure 2.1. 75 CRM, para. 2.7. 29 General Alexander (first award), a similar situation occurred. Costa Rica had claimed that the Island of San Juan76 on the date of signing the Treaty on April 15, 1858 (the dry season), had become part of the coast of Costa Rica since “a connection existed between the island and the eastern headland, and that this converted the island into mainland.”77. Alexander denied this claim, stating that even if it were true that in April 1858 the island was connected to the mainland “it would be unreasonable to suppose that such temporary connection could operate to change permanently the geographical character and political ownership of the island.”78 The same is true today both concerning the situation of the island and of the sand bar. 4.7 Second, the lower San Juan now flows directly into the Caribbean Sea (see Figure 4.2). This has been the case for at least 50 years79. Yet, as shown below,80 Costa Rica never questioned the course of the land boundary along the channel connecting the lower San Juan with Harbor Head Lagoon. This contradicts directly Costa Rica’s position in the present case, which now says that the boundary is composed of two segments.81 76 This island is depicted by Alexander as “[t]he great feature in the local geography of this bay, since our earliest accounts of it, has been the existence of an island in its outlet, called on some early maps the island of San Juan.” This island still exists and it is depicted as Nicaraguan in all the Costa Rican cartography filed with the Court up to the end of 2011. 77 First Award of the General E.P. Alexander in the boundary question between Costa Rica and Nicaragua U.N.R.I.A.A., Vol. XXVIII (2007) p. 218 (NCM Annex 2-2). 78 Ibid. 79 See the Counter Memorial of Nicaragua in the dispute concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Volume IV, Photographs/Satellite Image/Aerial Images. 80 See paras. 4.22-4.31 below. 81 See CRM, p. 16, Figure 2.4. 30 Figure 4.2 1960 Aerial Image 4.8 Third, in its 2015 Judgment, the Court noted “the general lack of clarity of satellite and aerial images.”82 In order to best assess the situation on the ground, it is necessary to supplement these images with photos taken from the ground or drone videos shot at a reasonable height. Costa Rica has not annexed any such photo or video to its Memorial. It is therefore in order for Nicaragua to include in its Counter-Memorial some images taken by drone in the area in question 83 and included below as Figures 4. 3-4. 82 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, para. 81. 83 See also Annexes NCM Annex 3 and NCM Annex 4 (video). 31 Figure 4-3 Drone Video Captures and Locations from December 2016 Site Visit 30 Figure 4.2 1960 Aerial Image 4.8 Third, in its 2015 Judgment, the Court noted “the general lack of clarity of satellite and aerial images.”82 In order to best assess the situation on the ground, it is necessary to supplement these images with photos taken from the ground or drone videos shot at a reasonable height. Costa Rica has not annexed any such photo or video to its Memorial. It is therefore in order for Nicaragua to include in its Counter-Memorial some images taken by drone in the area in question 83 and included below as Figures 4. 3-4. 82 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, para. 81. 83 See also Annexes NCM Annex 3 and NCM Annex 4 (video). 31 Figure 4-3 Drone Video Captures and Locations from December 2016 Site Visit 32 Figure 4-4. Drone Video Captures and Locations from March 2017 Site Visit 33 4.9 Fourth, the channel connecting the lower San Juan with Harbor Head Lagoon still exists today. 4.10 Portions of it are visible on the most recent satellite and aerial photos (see Figures 4.3-4 above) including those appearing in the Costa Rica’s Memorial (see Figure 4.5).84 In this respect, Figures 2.4 and 2.11 of Costa Rica’s Memorial85 are misleading because they represent Isla Portillos as dry land from the San Juan River to the Caribbean Sea, ignoring the existence of the channel86. Figure 4.5 Satellite Images used by Costa Rica 84 See CRM, p. 9, Figure 2.1, p. 31, Figure 2.8. 85 See CRM, p. 16 and p. 44. 86 See also Annex 5. 32 Figure 4-4. Drone Video Captures and Locations from March 2017 Site Visit 33 4.9 Fourth, the channel connecting the lower San Juan with Harbor Head Lagoon still exists today. 4.10 Portions of it are visible on the most recent satellite and aerial photos (see Figures 4.3-4 above) including those appearing in the Costa Rica’s Memorial (see Figure 4.5).84 In this respect, Figures 2.4 and 2.11 of Costa Rica’s Memorial85 are misleading because they represent Isla Portillos as dry land from the San Juan River to the Caribbean Sea, ignoring the existence of the channel86. Figure 4.5 Satellite Images used by Costa Rica 84 See CRM, p. 9, Figure 2.1, p. 31, Figure 2.8. 85 See CRM, p. 16 and p. 44. 86 See also Annex 5. 34 4.11 Recent photos taken from the ground (see Figures 4.3 and 4.4 above) as well as drone videos confirm the existence of the channel.87 These drone videos are known to the Court. Nicaragua transmitted them by e-mail to the Court’s Registrar and to Costa Rica on 9 December 2016. Interestingly, Costa Rica objected to that transmission to the experts nominated by the Court.88 For this reason, Nicaragua is now including it as evidence in this Counter Memorial. Figure 4.6 The Present-Day Channel connecting Harbor Head Lagoon and Rio San Juan 4.12 This visual evidence, together with the drone footages, shows a channel flowing from the mouth of the San Juan River to Harbor Head Lagoon where the starting point of the land boundary is located. Some parts are overgrown and due 87 See NCM Annex 4 (video). 88 See Letter from the Co-Agent of the Republic of Costa Rica to the Registrar of the International Court of Justice, 13 December 2016, Ref. ECRPB-146-16. 35 to overhanging trees the channel is not always visible on aerial imagery. This channel corresponds to the channel identified by General Alexander, which is visible on the map attached to his First Award.89 The sand feature one finds on the left bank of this channel is referred to by Costa Rica as the “beach of Isla Portillos”. The name chosen by Costa Rica conveys an incorrect impression. This “beach” and the sandbar are in fact part of a single sand feature. It would be best characterised as the remains of the barrier sandbar separating the lagoon from the Caribbean Sea a few miles north of where it lies today as well as the remains of the island of San Juan. The sea has pushed it back closer towards the mainland but that does not change its nature. It remains an independent feature separated from the mainland. This is shown by the maps and images below, portraying the evolution of the lagoon and the Northern part of Isla Portillos from the Caribbean Sea. 89 See Figure 3.1. above. 34 4.11 Recent photos taken from the ground (see Figures 4.3 and 4.4 above) as well as drone videos confirm the existence of the channel.87 These drone videos are known to the Court. Nicaragua transmitted them by e-mail to the Court’s Registrar and to Costa Rica on 9 December 2016. Interestingly, Costa Rica objected to that transmission to the experts nominated by the Court.88 For this reason, Nicaragua is now including it as evidence in this Counter Memorial. Figure 4.6 The Present-Day Channel connecting Harbor Head Lagoon and Rio San Juan 4.12 This visual evidence, together with the drone footages, shows a channel flowing from the mouth of the San Juan River to Harbor Head Lagoon where the starting point of the land boundary is located. Some parts are overgrown and due 87 See NCM Annex 4 (video). 88 See Letter from the Co-Agent of the Republic of Costa Rica to the Registrar of the International Court of Justice, 13 December 2016, Ref. ECRPB-146-16. 35 to overhanging trees the channel is not always visible on aerial imagery. This channel corresponds to the channel identified by General Alexander, which is visible on the map attached to his First Award.89 The sand feature one finds on the left bank of this channel is referred to by Costa Rica as the “beach of Isla Portillos”. The name chosen by Costa Rica conveys an incorrect impression. This “beach” and the sandbar are in fact part of a single sand feature. It would be best characterised as the remains of the barrier sandbar separating the lagoon from the Caribbean Sea a few miles north of where it lies today as well as the remains of the island of San Juan. The sea has pushed it back closer towards the mainland but that does not change its nature. It remains an independent feature separated from the mainland. This is shown by the maps and images below, portraying the evolution of the lagoon and the Northern part of Isla Portillos from the Caribbean Sea. 89 See Figure 3.1. above. 36 4.13 This map (Figure 4.7) shows, in the north, a sand bar projecting westwards from Punta Castilla though Harbor Head Lagoon is largely open to the Caribbean Sea. Figure 4.7 Harbor of San Juan del Norte or Greytown (1890) 37 4.14 Figure 4.8 shows the situation two years after General Alexander rendered his First Award. North-west of Isla Portillos, one may see the Old Island of San Juan. This map also shows Harbor Head Lagoon sandbar. It is worth noting that the sandbar now has extended far west of Harbor Head lagoon. Figure 4.8 Map of Greytown Harbor, Nicaragua Canal Commission (1899) 36 4.13 This map (Figure 4.7) shows, in the north, a sand bar projecting westwards from Punta Castilla though Harbor Head Lagoon is largely open to the Caribbean Sea. Figure 4.7 Harbor of San Juan del Norte or Greytown (1890) 37 4.14 Figure 4.8 shows the situation two years after General Alexander rendered his First Award. North-west of Isla Portillos, one may see the Old Island of San Juan. This map also shows Harbor Head Lagoon sandbar. It is worth noting that the sandbar now has extended far west of Harbor Head lagoon. Figure 4.8 Map of Greytown Harbor, Nicaragua Canal Commission (1899) 38 4.15 The map from 1903 (Figure 4.9) shows two important things. First, in contrast to the map drawn in 1890 (Figure 4.7), the sand barrier now separates the entirety of Isla Portillos and Harbor Head lagoon from the Caribbean Sea. Second, this sand barrier has been pushed a little towards the mainland. The mouth of the Rio San Juan is now north of Greytown, in approximately the same position as today. Figure 4.9 Greytown to Colorado River (1903) 39 4.16 Figures 4.10, reproducing an U.S. Army map of 1966, 4.11 and 4.12, reproducing Costa Rican maps of 1970, also show that the sand barrier has been pushed towards the mainland and that the Harbor Head Lagoon sandbar extends westwards over Isla Portillos. There are no channels through the barrier bar between Harbor Head lagoon and the river mouth at Laguna Santa Lucia. Figure 4.10 San Juan del Norte, US Corps of Engineers 1966 38 4.15 The map from 1903 (Figure 4.9) shows two important things. First, in contrast to the map drawn in 1890 (Figure 4.7), the sand barrier now separates the entirety of Isla Portillos and Harbor Head lagoon from the Caribbean Sea. Second, this sand barrier has been pushed a little towards the mainland. The mouth of the Rio San Juan is now north of Greytown, in approximately the same position as today. Figure 4.9 Greytown to Colorado River (1903) 39 4.16 Figures 4.10, reproducing an U.S. Army map of 1966, 4.11 and 4.12, reproducing Costa Rican maps of 1970, also show that the sand barrier has been pushed towards the mainland and that the Harbor Head Lagoon sandbar extends westwards over Isla Portillos. There are no channels through the barrier bar between Harbor Head lagoon and the river mouth at Laguna Santa Lucia. Figure 4.10 San Juan del Norte, US Corps of Engineers 1966 40 Figure 4.11 Punta Castilla, IGN, Costa Rica, 1970 Figure 4.12 Barra Colorado, IGN, Costa Rica, 1970 41 4.17 The following image from 1961 (Figure 4.13) – also used by Professor Thorne in the Report appended to the Certain Activities’ Memorial90– highlights what was then a wider entrance to the channel in question than exists today. Figure 4.13 1961 Aerial Image 90 Certain Activities, CRM, p. 342. 40 Figure 4.11 Punta Castilla, IGN, Costa Rica, 1970 Figure 4.12 Barra Colorado, IGN, Costa Rica, 1970 41 4.17 The following image from 1961 (Figure 4.13) – also used by Professor Thorne in the Report appended to the Certain Activities’ Memorial90– highlights what was then a wider entrance to the channel in question than exists today. Figure 4.13 1961 Aerial Image 90 Certain Activities, CRM, p. 342. 42 4.18 In the following, remotely-sensed image from 1981 (Figure 4.14) – also used in the Thorne Report91 – the channel is filled with water and an island is still noticeably disconnected from the mainland by the channel. Figure 4.14 1981 Satellite Image 91 Certain Activities, CRM, p. 344 – arrows added to the original image. 43 4.19 In fact, in 2006 Costa Rica itself depicted the situation on the ground for its cadastral records92 showing once again the existence of the channel connecting the river with the lagoon: Figure 4.15 Costa Rica National Cadastre (2006) 4.20 By application to the situation on the ground of the methodology set out by General Alexander in its First Award93, the course of the land boundary between Nicaragua and Costa Rica is therefore as follows: the land boundary starts at the north-east corner of the sandbar separating Harbor Head Lagoon from the Caribbean Sea, cuts that sandbar and follows the water’s edge around the lagoon until it meets the channel connecting Harbor Head Lagoon to the lower San Juan. 92 Certain Activities, CRM, Vol. V, Annex 216. 93 See para. 3.8 above. 42 4.18 In the following, remotely-sensed image from 1981 (Figure 4.14) – also used in the Thorne Report91 – the channel is filled with water and an island is still noticeably disconnected from the mainland by the channel. Figure 4.14 1981 Satellite Image 91 Certain Activities, CRM, p. 344 – arrows added to the original image. 43 4.19 In fact, in 2006 Costa Rica itself depicted the situation on the ground for its cadastral records92 showing once again the existence of the channel connecting the river with the lagoon: Figure 4.15 Costa Rica National Cadastre (2006) 4.20 By application to the situation on the ground of the methodology set out by General Alexander in its First Award93, the course of the land boundary between Nicaragua and Costa Rica is therefore as follows: the land boundary starts at the north-east corner of the sandbar separating Harbor Head Lagoon from the Caribbean Sea, cuts that sandbar and follows the water’s edge around the lagoon until it meets the channel connecting Harbor Head Lagoon to the lower San Juan. 92 Certain Activities, CRM, Vol. V, Annex 216. 93 See para. 3.8 above. 44 The boundary then follows the contour of Isla Portillos up to the lower San Juan, the “River proper”.94 4.21 For illustrative purposes only, the course has been depicted on a recent satellite photo of the relevant area (Figure 4.16). Consequently, the stretch of coast extending from Harbor Head Lagoon to the mouth of the San Juan River belongs to Nicaragua. Figure 4.16 Depiction of the boundary on 2017 satellite imagery 94 First Award of the General E.P. Alexander in the boundary question between Costa Rica and Nicaragua U.N.R.I.A.A., Vol. XXVIII (2007) p. 220 (NCM Annex 2-2). 45 B. Nicaragua’s Position is Confirmed by Costa Rica’s Long-Standing Views 4.22 In the present case, Costa Rica argues that “the northern/left bank of the lagoon/channel has been eroded and has disappeared and the southern/right bank now abuts into the sea.”95 And from this, it concludes that, “Today, the only Nicaraguan territory in the area of Isla Portillos is […] an enclave comprising the Los Portillos/Harbour Head Lagoon and the sandbar separating Los Portillos/Harbour Head Lagoon from the Caribbean Sea.”96 4.23 Not only is this claim factually baseless has Nicaragua has shown,97 it also constitutes a complete shift in Costa Rica’s position. In this respect, this is radically different from what Costa Rica was asserting when the Certain Activities case began in 2010. Chapter II of the Memorial of Costa Rica in that case is dedicated to explaining in extenso that in its view the borders had been agreed, and explaining where the famous caño indicated in the first Arbitral Award of General Alexander was located. 95 CRM, para. 2.53(b). 96 CRM, para. 2.54. See also Submission (a). 97 See paras. 4.1-4.21 above. 44 The boundary then follows the contour of Isla Portillos up to the lower San Juan, the “River proper”.94 4.21 For illustrative purposes only, the course has been depicted on a recent satellite photo of the relevant area (Figure 4.16). Consequently, the stretch of coast extending from Harbor Head Lagoon to the mouth of the San Juan River belongs to Nicaragua. Figure 4.16 Depiction of the boundary on 2017 satellite imagery 94 First Award of the General E.P. Alexander in the boundary question between Costa Rica and Nicaragua U.N.R.I.A.A., Vol. XXVIII (2007) p. 220 (NCM Annex 2-2). 45 B. Nicaragua’s Position is Confirmed by Costa Rica’s Long-Standing Views 4.22 In the present case, Costa Rica argues that “the northern/left bank of the lagoon/channel has been eroded and has disappeared and the southern/right bank now abuts into the sea.”95 And from this, it concludes that, “Today, the only Nicaraguan territory in the area of Isla Portillos is […] an enclave comprising the Los Portillos/Harbour Head Lagoon and the sandbar separating Los Portillos/Harbour Head Lagoon from the Caribbean Sea.”96 4.23 Not only is this claim factually baseless has Nicaragua has shown,97 it also constitutes a complete shift in Costa Rica’s position. In this respect, this is radically different from what Costa Rica was asserting when the Certain Activities case began in 2010. Chapter II of the Memorial of Costa Rica in that case is dedicated to explaining in extenso that in its view the borders had been agreed, and explaining where the famous caño indicated in the first Arbitral Award of General Alexander was located. 95 CRM, para. 2.53(b). 96 CRM, para. 2.54. See also Submission (a). 97 See paras. 4.1-4.21 above. 46 Figure 4.17 Boundaries accepted by Costa Rica 4.24 At paragraph 2.49 of its Certain Activities Memorial, Costa Rica acknowledged that “the Channel described in Alexander’s First Award can be seen running parallel to the coast.” Annex 153 to that Memorial further reflects that acknowledgement, which can be seen at page 5 of said Annex and reproduced in Figure 4.17 above. 47 4.25 Costa Rica’s official cartography reveals its understanding of the boundary line, which was not changed until very recently. Costa Rica based its territorial claim in the Certain Activities case on its own maps and on the official maps of independent third parties.98 Most importantly, Costa Rica recognized in the Certain Activities case that these maps were consistent with the Alexander Awards.99 4.26 During the hearings on its request for provisional measures Costa Rica stated: “It is essential to recall that the relevant maps of the area San Juan del Norte/Punta Castilla produced and used by both countries until late last year clearly depict the boundary following the true first canal as determined by Alexander and do not show at all the purported new “first caño” artificially created by Nicaragua.”100 4.27 Moreover, in the Certain Activities case, Costa Rica attached great importance to the maps produced by Nicaragua’s INETER and Costa Rica’s IGN in 1988.101 In this respect, during the hearings held in 2015, Counsel for Costa Rica explained that: “The two maps of the area, produced in 1988 by the official cartographic institutes of both States - the map of San Juan del Norte produced by Nicaragua’s INETER and the map of Punta Castilla produced by Costa Rica’s IGN - are remarkably consistent in showing the area’s geographic configuration and where the boundary runs.”102 98 See Memorial of Costa Rica in the Certain Activities case, Annexes 175, 222, 178, 184, 159 and 189. 99 Memorial of Costa Rica in the Certain Activities case, p. 60, para. 2.50 100 Comments of Costa Rica on the answers of Nicaragua to the questions put by Judges Simma, Provisional Measures (2011), 20 January 2011. 101 These maps are also attached to its Memorial in the present case, see annexes 61 and 62. 102 CR 2015/2, 14 April 2015, p. 60, para. 61 (Kohen) 46 Figure 4.17 Boundaries accepted by Costa Rica 4.24 At paragraph 2.49 of its Certain Activities Memorial, Costa Rica acknowledged that “the Channel described in Alexander’s First Award can be seen running parallel to the coast.” Annex 153 to that Memorial further reflects that acknowledgement, which can be seen at page 5 of said Annex and reproduced in Figure 4.17 above. 47 4.25 Costa Rica’s official cartography reveals its understanding of the boundary line, which was not changed until very recently. Costa Rica based its territorial claim in the Certain Activities case on its own maps and on the official maps of independent third parties.98 Most importantly, Costa Rica recognized in the Certain Activities case that these maps were consistent with the Alexander Awards.99 4.26 During the hearings on its request for provisional measures Costa Rica stated: “It is essential to recall that the relevant maps of the area San Juan del Norte/Punta Castilla produced and used by both countries until late last year clearly depict the boundary following the true first canal as determined by Alexander and do not show at all the purported new “first caño” artificially created by Nicaragua.”100 4.27 Moreover, in the Certain Activities case, Costa Rica attached great importance to the maps produced by Nicaragua’s INETER and Costa Rica’s IGN in 1988.101 In this respect, during the hearings held in 2015, Counsel for Costa Rica explained that: “The two maps of the area, produced in 1988 by the official cartographic institutes of both States - the map of San Juan del Norte produced by Nicaragua’s INETER and the map of Punta Castilla produced by Costa Rica’s IGN - are remarkably consistent in showing the area’s geographic configuration and where the boundary runs.”102 98 See Memorial of Costa Rica in the Certain Activities case, Annexes 175, 222, 178, 184, 159 and 189. 99 Memorial of Costa Rica in the Certain Activities case, p. 60, para. 2.50 100 Comments of Costa Rica on the answers of Nicaragua to the questions put by Judges Simma, Provisional Measures (2011), 20 January 2011. 101 These maps are also attached to its Memorial in the present case, see annexes 61 and 62. 102 CR 2015/2, 14 April 2015, p. 60, para. 61 (Kohen) 48 Figure 4.18 Punta Castilla, Topographic Sheet, IGN, Costa Rica, 1988 4.28 Figure 4.18 (Figure 2.8 in its Certain Activities Memorial) reproduces the 1988 topographic map produced by Costa Rica IGN which clearly indicates the “contour of the border line around Laguna los Portillos”103 and the boundary line up to the mouth of the San Juan River. The Memorial of Costa Rica in that case was filed on 5 December 2011, more than one year after the dispute with Nicaragua began, and thus reflected Costa Rica’s very considered views. 4.29 During the proceedings, Costa Rica further insisted on the long-standing agreement of the Parties on the course of the land boundary. Criticizing the INETER 2011 Map (Figure 4.19), 104 Costa Rica explained: 103 Memorial of Costa Rica in the Certain Activities case, p. 60, para. 2.50 104 See Certain Activities, CRM, paras. 2.54-2.58. 49 “Not only the INETER, but Nicaragua’s Army as well, had always understood that the channel described by Alexander is indeed the one running parallel to the coast, and thus that the entirety of Isla Portillos appertains to Costa Rica.” Figure 4.19 San Juan del Norte, Topographic sheet, INETER, Nicaragua, 1988 4.30 Similarly, during the 2015 hearings on the Merits, Counsel to Costa Rica told the Court that the 2003 “official map of the Río San Juan district is also of the utmost importance in this case”105 an insisted on the fact that this “map explicitly states […] ‘The boundaries were verified by the General Directorate of Territorial Management INETER’.”106 This map shows clearly the stretch of coast abutting the Caribbean Sea as Nicaraguan territory. 105 CR 2015/2, 14 April 2015, p. 61, para. 62 (Kohen) 106 Ibid. 48 Figure 4.18 Punta Castilla, Topographic Sheet, IGN, Costa Rica, 1988 4.28 Figure 4.18 (Figure 2.8 in its Certain Activities Memorial) reproduces the 1988 topographic map produced by Costa Rica IGN which clearly indicates the “contour of the border line around Laguna los Portillos”103 and the boundary line up to the mouth of the San Juan River. The Memorial of Costa Rica in that case was filed on 5 December 2011, more than one year after the dispute with Nicaragua began, and thus reflected Costa Rica’s very considered views. 4.29 During the proceedings, Costa Rica further insisted on the long-standing agreement of the Parties on the course of the land boundary. Criticizing the INETER 2011 Map (Figure 4.19), 104 Costa Rica explained: 103 Memorial of Costa Rica in the Certain Activities case, p. 60, para. 2.50 104 See Certain Activities, CRM, paras. 2.54-2.58. 49 “Not only the INETER, but Nicaragua’s Army as well, had always understood that the channel described by Alexander is indeed the one running parallel to the coast, and thus that the entirety of Isla Portillos appertains to Costa Rica.” Figure 4.19 San Juan del Norte, Topographic sheet, INETER, Nicaragua, 1988 4.30 Similarly, during the 2015 hearings on the Merits, Counsel to Costa Rica told the Court that the 2003 “official map of the Río San Juan district is also of the utmost importance in this case”105 an insisted on the fact that this “map explicitly states […] ‘The boundaries were verified by the General Directorate of Territorial Management INETER’.”106 This map shows clearly the stretch of coast abutting the Caribbean Sea as Nicaraguan territory. 105 CR 2015/2, 14 April 2015, p. 61, para. 62 (Kohen) 106 Ibid. 50 Figure 4.20 Costa Rica’s Consistent Depiction of the Land Boundary 51 4.31 It is evident from the position adopted by Costa Rica that, until very recently, it correctly considered that the land boundary runs along the right (southern) bank of the channel connecting Harbor Head Lagoon with the mouth of the river and that, consequently, the coast on the left (northern) bank of this channel, and the channel, appertains to Nicaragua (see consistent series of maps in Figure 4-20). Costa Rica has provided no evidence to support its claim that there have been such drastic changes in the area that the borderline should no longer run along the right (southern) bank of the channel that runs parallel to the coast connecting the mouth of the river with Harbor Head Lagoon, as has been constantly confirmed by Costa Rica itself before this same Court. Section 2. The Location of the Military Camp 4.32 The course of the land boundary between Nicaragua and Costa Rica leads to an inescapable conclusion: The stretch of coast running from the mouth of the river to Harbor Head Lagoon being Nicaraguan, the military camp is located on Nicaraguan territory. 4.33 Costa Rica claims that it initiated the present proceedings “in response to the establishment by Nicaragua of a military camp on the Costa Rican territory of the beach of Isla Portillos […] in or about September 2016”107. However, as Nicaragua mentioned in the Certain Activities case, the Nicaraguan Army has always patrolled the Harbor Head area, including “the entire stretch of coast abutting the Caribbean Sea which lies between Harbor Head Lagoon and the mouth of the river”108; and in 2010 some security points were increased around 107 CRM, p. 49, para. 3.1. 108 CRM, Letter from Nicaragua to Costa Rica, Reference MRE/DMC/250/11/16, 17 November 2016, Annex 57 (italics in original) 50 Figure 4.20 Costa Rica’s Consistent Depiction of the Land Boundary 51 4.31 It is evident from the position adopted by Costa Rica that, until very recently, it correctly considered that the land boundary runs along the right (southern) bank of the channel connecting Harbor Head Lagoon with the mouth of the river and that, consequently, the coast on the left (northern) bank of this channel, and the channel, appertains to Nicaragua (see consistent series of maps in Figure 4-20). Costa Rica has provided no evidence to support its claim that there have been such drastic changes in the area that the borderline should no longer run along the right (southern) bank of the channel that runs parallel to the coast connecting the mouth of the river with Harbor Head Lagoon, as has been constantly confirmed by Costa Rica itself before this same Court. Section 2. The Location of the Military Camp 4.32 The course of the land boundary between Nicaragua and Costa Rica leads to an inescapable conclusion: The stretch of coast running from the mouth of the river to Harbor Head Lagoon being Nicaraguan, the military camp is located on Nicaraguan territory. 4.33 Costa Rica claims that it initiated the present proceedings “in response to the establishment by Nicaragua of a military camp on the Costa Rican territory of the beach of Isla Portillos […] in or about September 2016”107. However, as Nicaragua mentioned in the Certain Activities case, the Nicaraguan Army has always patrolled the Harbor Head area, including “the entire stretch of coast abutting the Caribbean Sea which lies between Harbor Head Lagoon and the mouth of the river”108; and in 2010 some security points were increased around 107 CRM, p. 49, para. 3.1. 108 CRM, Letter from Nicaragua to Costa Rica, Reference MRE/DMC/250/11/16, 17 November 2016, Annex 57 (italics in original) 52 the area in order to offer protection to the workers carrying out the cleaning and dredging of the river. 4.34 More precisely, on 13 October 2010 Nicaragua positioned a military camp approximately 500 meters north of the northeast corner of the Harbor Head lagoon as shown by Figure 4.21 below. However, on 2 December 2010 the camp had to be moved nearer the northwest corner of the lagoon because of the breaking of the bar in front of the lagoon. The following photographs record this particular event. Figure 4.21 Military Camp 2010 53 Figure 4.22 Repositioning of the Military Camp in 2010 4.35 Since December 2010, the military camp has remained mostly at the same position, near the northwestern corner of the lagoon, located on the sand bar 52 the area in order to offer protection to the workers carrying out the cleaning and dredging of the river. 4.34 More precisely, on 13 October 2010 Nicaragua positioned a military camp approximately 500 meters north of the northeast corner of the Harbor Head lagoon as shown by Figure 4.21 below. However, on 2 December 2010 the camp had to be moved nearer the northwest corner of the lagoon because of the breaking of the bar in front of the lagoon. The following photographs record this particular event. Figure 4.21 Military Camp 2010 53 Figure 4.22 Repositioning of the Military Camp in 2010 4.35 Since December 2010, the military camp has remained mostly at the same position, near the northwestern corner of the lagoon, located on the sand bar 54 separated from the mangrove forest on Islas Portillo by the channel leading out of Harbor Head lagoon. Costa Rica never protested the presence of the military camp or Nicaraguan military personnel, despite the fact that since 2010 there has been constant monitoring over the area by Costa Rica. This also evidences that both Costa Rica and Nicaragua understood that the entire sandbar was Nicaraguan territory and therefore any changes in the position of the camp were irrelevant. 4.36 The following images shown in chronological order, attest to the continued presence of Nicaraguan military personnel at the same spot that now Costa Rica claims as its territory. Furthermore, for security reasons Nicaragua often had a main camp and an observation tent at a distance as some of these images demonstrate. Figure 4. 23 The Military Camp in 2013-17 55 54 separated from the mangrove forest on Islas Portillo by the channel leading out of Harbor Head lagoon. Costa Rica never protested the presence of the military camp or Nicaraguan military personnel, despite the fact that since 2010 there has been constant monitoring over the area by Costa Rica. This also evidences that both Costa Rica and Nicaragua understood that the entire sandbar was Nicaraguan territory and therefore any changes in the position of the camp were irrelevant. 4.36 The following images shown in chronological order, attest to the continued presence of Nicaraguan military personnel at the same spot that now Costa Rica claims as its territory. Furthermore, for security reasons Nicaragua often had a main camp and an observation tent at a distance as some of these images demonstrate. Figure 4. 23 The Military Camp in 2013-17 55 56 57 56 57 58 4.37 Costa Rica’s note of 14 November 2016109 protesting the location of the military camp was sent with the sole purpose of preparing this Application, which is based on the alleged new location of Nicaragua’s military camp. The images above show exactly the opposite; and Costa Rica has long been aware of this fact. However, as the 16 December 2015 Judgement confirmed, Costa Rica’s attempt to confuse the Court as to the extent of the disputed territory in that case was not fruitful. Hence, the need for Costa Rica to come up with this new Application, for which purpose it fabricated a “new situation”. 4.38 In any event, the fact that the military camp has been shifted by a few meters is simply irrelevant since the whole coast belongs to Nicaragua. Nicaragua had the right to move the camp to its current location, within its territory. 109 CRM, Annex 56. 59 SUBMISSIONS For the reasons exposed in the present Counter-Memorial, the Republic of Nicaragua respectfully requests the Court to adjudge and declare that: (1) the stretch of coast abutting the Caribbean Sea which lies between the Harbor Head Lagoon and the mouth of the San Juan River constitutes Nicaraguan territory; (2) the military camp set up by Nicaragua is located on Nicaraguan territory; and consequently; (3) the requests and submissions of the Republic of Costa Rica are rejected in their entirety. The Hague, 18 April 2017 Carlos J. Argüello Gómez Agent of the Republic of Nicaragua 58 4.37 Costa Rica’s note of 14 November 2016109 protesting the location of the military camp was sent with the sole purpose of preparing this Application, which is based on the alleged new location of Nicaragua’s military camp. The images above show exactly the opposite; and Costa Rica has long been aware of this fact. However, as the 16 December 2015 Judgement confirmed, Costa Rica’s attempt to confuse the Court as to the extent of the disputed territory in that case was not fruitful. Hence, the need for Costa Rica to come up with this new Application, for which purpose it fabricated a “new situation”. 4.38 In any event, the fact that the military camp has been shifted by a few meters is simply irrelevant since the whole coast belongs to Nicaragua. Nicaragua had the right to move the camp to its current location, within its territory. 109 CRM, Annex 56. 59 SUBMISSIONS For the reasons exposed in the present Counter-Memorial, the Republic of Nicaragua respectfully requests the Court to adjudge and declare that: (1) the stretch of coast abutting the Caribbean Sea which lies between the Harbor Head Lagoon and the mouth of the San Juan River constitutes Nicaraguan territory; (2) the military camp set up by Nicaragua is located on Nicaraguan territory; and consequently; (3) the requests and submissions of the Republic of Costa Rica are rejected in their entirety. The Hague, 18 April 2017 Carlos J. Argüello Gómez Agent of the Republic of Nicaragua 60 60 61 CERTIFICATION I have the honour to certify that this Counter-Memorial and the documents annexed to it are true copies and conform to the original documents and that the translations into English made by the Republic of Nicaragua are accurate translations. The Hague, 18 April 2017. Carlos J. Argüello-Gómez Agent of the Republic of Nicaragua 62 63 DISPUTE CONCERNING THE LAND BOUNDARY IN THE NORTHERN PART OF ISLA PORTILLOS (COSTA RICA v. NICARAGUA) COUNTER-MEMORIAL OF THE REPUBLIC OF NICARAGUA ANNEXES 62 63 DISPUTE CONCERNING THE LAND BOUNDARY IN THE NORTHERN PART OF ISLA PORTILLOS (COSTA RICA v. NICARAGUA) COUNTER-MEMORIAL OF THE REPUBLIC OF NICARAGUA ANNEXES 64 65 LIST OF ANNEXES ANNEX No. Treaties and Awards PAGE 1. Treaty of Limits between Nicaragua and Costa Rica, April 15 1858. 67 2. (1) Award of the Arbitrator, the President of the United States, upon the validity of the Treaty of Limits of 1858 between Nicaragua and Costa Rica (Cleveland Award), reprinted United Nations, Report of International Arbitral Awards, Vol. XXVIII (2006), pp.207-211 Washington, D.C., 22 March 1888. (2) First Award of the Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, reprinted United Nations, Reports of International Arbitral Awards, Vol. XXVIII (2007) pp.215-221, San Juan del Norte, 30 September 1897. (3) Second Award of the Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, reprinted United Nations, Reports of International Arbitral Awards, Vol. XXVIII (2007) pp.223-225, San Juan del Norte, 20 December 1897. 77 Video, Imagery and Maps 3 Figures of the Counter Memorial 97 4 Drone Video from December 2016 visit (joined video 6&7 Dec 2016) 135 5 Satellite Image March 10, 2011. 137 64 65 LIST OF ANNEXES ANNEX No. Treaties and Awards PAGE 1. Treaty of Limits between Nicaragua and Costa Rica, April 15 1858. 67 2. (1) Award of the Arbitrator, the President of the United States, upon the validity of the Treaty of Limits of 1858 between Nicaragua and Costa Rica (Cleveland Award), reprinted United Nations, Report of International Arbitral Awards, Vol. XXVIII (2006), pp.207-211 Washington, D.C., 22 March 1888. (2) First Award of the Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, reprinted United Nations, Reports of International Arbitral Awards, Vol. XXVIII (2007) pp.215-221, San Juan del Norte, 30 September 1897. (3) Second Award of the Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, reprinted United Nations, Reports of International Arbitral Awards, Vol. XXVIII (2007) pp.223-225, San Juan del Norte, 20 December 1897. 77 Video, Imagery and Maps 3 Figures of the Counter Memorial 97 4 Drone Video from December 2016 visit (joined video 6&7 Dec 2016) 135 5 Satellite Image March 10, 2011. 137 66 67 Annex 1 Treaty of Limits between Nicaragua and Costa Rica. April 15 1858. 68 69 Annex 1 70 Annex 1 71 Annex 1 72 Annex 1 73 Annex 1 74 Annex 1 75 Annex 1 76 77 Annex 2 (1) Award of the Arbitrator, the President of the United States, upon the validity of the Treaty of Limits of 1858 between Nicaragua and Costa Rica (Cleveland Award), reprinted United Nations, Report of International Arbitral Awards, Vol. XXVIII (2006), pp.207-211 Washington, D.C., 22 March 1888. (2) First Award of the Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, reprinted United Nations, Reports of International Arbitral Awards, Vol. XXVIII (2007) pp.215-221, San Juan del Norte, 30 September 1897. (3) Second Award of the Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, reprinted United Nations, Reports of International Arbitral Awards, Vol. XXVIII (2007) pp.223-225, San Juan del Norte, 20 December 1897. 78 79 Annex 2 80 Annex 2 81 Annex 2 82 Annex 2 83 Annex 2 84 Annex 2 85 REPORTS OF INTERNATIONAL ARBITRAL AWARDS RECUEIL DES SENTENCES ARBITRALES First award under the Convention between Costa Rica and Nicaragua of 8 April 1896 for the demarcation of the boundary between the two Republics 30 September 1897 VOLUME XXVIII pp. 215-222 NATIONS UNIES - UNITED NATIONS Copyright (c) 2007 Annex 2 86 __________ FIRST AWARD OF THE ENGINEER-UMPIRE, UNDER THE CONVENTION BETWEEN COSTA RICA AND NICARAGUA OF 8 APRIL 1896 FOR THE DEMARCATION OF THE BOUNDARY BETWEEN THE TWO REPUBLICS, DECISION OF 30 SEPTEMBER 1897∗ PREMIÈRE SENTENCE ARBITRALE RENDUE PAR LE SURARBITRE INGÉNIEUR, EN VERTU DE LA CONVENTION ENTRE LE COSTA RICA ET LE NICARAGUA DU 8 AVRIL 1896 POUR LA DÉMARCATION DE LA FRONTIÈRE ENTRE LES DEUX RÉPUBLIQUES, DÉCISION DU 30 SEPTEMBRE 1897∗∗ Interpretation of treaty – treaty must be interpreted in the way in which it was mutually understood at the time by its makers – meaning understood from the language taken as a whole and not deduced from isolated words or sentences – the non use of some names may be as significant as the use of others – Treaty of limits of 15 April 1858. Delimitation of boundary – a temporary connection between an island and mainland during the dry season may not change permanently the geographical character and political ownership of the island – the river being treated and regarded as an outlet of commerce in the Treaty; it has to be considered when it is navigable, with an average water level. Interprétation des traités – un traité doit être interprété conformément à la conception mutuelle de ses auteurs au moment de son élaboration – le sens doit être dégagé du texte pris dans sa globalité et non déduit de termes ou de phrases isolés – le non emploi de certains noms propres peut être aussi significatif que l’emploi de certains autres. Délimitation frontalière – une liaison temporaire pendant la saison sèche entre une île et le continent ne peut pas changer de façon permanente le caractère géographique et la possession politique de cette île – dans le traité, le fleuve étant désigné et envisagé comme une infrastructure commerciale, il doit être pris en compte lorsqu’il est navigable, c’est à dire avec un niveau d’eau moyen. * * * * * ∗ Reprinted from John Basset Moore, History and Digest of the International Arbitrations to Which the United States has been a Party, vol. V, Washington 1898, Government Printing Office, p.5074. ∗∗ Reproduit de John Basset Moore, History and Digest of the International Arbitrations to Which the United States has been a Party, vol. V, Washington , 1898, Government Printing Office, p. 5074. Annex 2 87 216 COSTA RICA/NICARAGUA SAN JUAN DEL NORTE, NICARAGUA, September 30, 1897. To the Commissions of Limits of Costa Rica and Nicaragua. GENTLEMEN: In pursuance of the duties assigned me by my commission as engineer-arbitrator to your two bodies, with the power to decide finally any points of difference that may arise in tracing and marking out the boundary line between the two republics, I have given careful study and consideration to all arguments, counter arguments, maps, and documents submitted to me in the matter of the proper location of the initial point of the said boundary line upon the Caribbean coast. The conclusion at which I have arrived and the award I am about to make do not accord with the views of either commission. So, in deference to the very excellent and earnest arguments so faithfully and loyally urged by each commission for its respective side, I will indicate briefly my line of thought and the considerations which have seemed to me to be paramount in determining the question; and of these considerations the principal and the controlling one is that we are to interpret and give effect to the treaty of April 15, 1858, in the way in which it was mutually understood at the time by its makers. Each commission has presented an elaborate and well-argued contention that the language of that treaty is consistent with its claim for a location of the initial point of the boundary line at a place which would give to its country great advantages. These points are over six miles apart, and are indicated on the map accompanying this award. The Costa Rican claim is located on the left-hand shore or west headland of the harbor; the Nicaraguan on the east headland of the mouth of the Taura branch. Without attempting to reply in detail to every argument advanced by either side in support of its respective claim, all will be met and sufficiently answered by showing that those who made the treaty mutually understood and had in view another point, to wit, the eastern headland at the mouth of the harbor. It is the meaning of the men who framed the treaty which we are to seek, rather than some possible meaning which can be forced upon isolated words or sentences. And this meaning of the men seems to me abundantly plain and obvious. This treaty was not made hastily or carelessly. Each state had born wrought up by years of fruitless negotiations to a state of readiness for war in defense of what it considered its rights, as is set forth in article 1. In fact, war had actually been declared by Nicaragua on November 25, 1857, when, through the mediation of the Republic of Salvador, a final effort to avert it Annex 2 88 AWARD OF 30 SEPTEMBER 1897 217 was made, another convention was held, and this treaty resulted. Now, we may arrive at the mutual understanding finally reached by its framers by first seeking in the treaty as a whole for the general idea or scheme of compromise upon which they were able to agree. Next, we must see that this general idea of the treaty as a whole harmonizes fully with any description of the line given in detail, and the proper names of all the localities used, or not used, in connection therewith, for the non use of some names may be as significant as the use of others. Now, from the general consideration of the treaty as a whole the scheme of compromise stands out clear and simple. Costa Rica was to have as a boundary line the right or southeast bank of the river, considered as an outlet for commerce, from a point 3 miles below Castillo to the sea. Nicaragua was to have her prized “sumo imperio” of all the waters of this same outlet for commerce, also unbroken to the sea. It is to be noted that this division implied also, of course, the ownership by Nicaragua of all islands in the river and of the left or northwest bank and headland. This division brings the boundary line (supposing it to be traced downward along the right bank from the point near Castillo) across both the Colorado and the Taura branches. It can not follow either of them, for neither is an outlet for commerce, as neither has a harbor at its mouth. It must follow the remaining branch, the one called the Lower San Juan, through its harbor and into the sea. The natural terminus of that line is the right-hand headland of the harbor mouth. Next let us note the language of description used in the treaty, telling whence the line is to start and how it is to run, leaving out for the moment the proper name applied to the initial point. It is to start “at the mouth of the river San Juan de Nicaragua, and shall continue following the right bank of the said river to a point three English miles from Castillo Viejo”. This language is evidently carefully considered and precise, and there is but one starting point possible for such a line, and that is at the right headland of the bay. Lastly, we come to the proper name applied to the starting point, “the extremity of Punta de Castillo”. This name Punta de Castillo does not appear upon a single one of all the original maps of the bay of San Juan which have been presented by either side, and which seem to include all that were ever published before the treaty or since. This is a significant fact, and its meaning is obvious. Punta de Castillo must have been, and must have remained, a point of no importance, political or commercial, otherwise it could not possibly Annex 2 89 218 COSTA RICA/NICARAGUA have so utterly escaped note or mention upon the maps. This agrees entirely with the characteristics of the mainland and the headland on the right of the bay. It remains until today obscure and unoccupied, except by the hut of a fisherman. But the identification of the locality is still further put beyond all question by the incidental mention, in another article of the treaty itself, of the name Punta de Castillo. In Article V. Costa Rica agrees temporarily to permit Nicaragua to use Costa Rica’s side of the harbor without payment of port dues, and the name Punta de Castillo is plainly applied to it. Thus we have, concurring, the general idea of compromise in the treaty as a whole, the literal description of the line in detail, and the verification of the name applied to the initial point by its incidental mention in another portion of the treaty, and by the concurrent testimony of every map maker of every nation, both before the treaty and since, in excluding this name from all other portions of the harbor. This might seem to be sufficient argument upon the subject, but it will present the whole situation in a still clearer light to give a brief explanation of the local geography and of one special peculiarity of this Bay of San Juan. The great feature in the local geography of this bay, since our earliest accounts of it, has been the existence of an island in its outlet, called on some early maps the island of San Juan. It was an island of such importance as to have been mentioned in 1820 by two distinguished authors, quoted in the Costa Rican reply to Nicaragua’s argument (page 12), and it is an island today, and so appears in the map accompanying this award. The peculiarity of this bay, to be noted, is that the river brings down very little water during the annual dry season. When that happens, particularly of late years, sand bars, dry at all ordinary tides, but submerged more or less and broken over by the waves at all high ones, are formed, frequently reaching the adjacent headlands, so that a man might cross dry-shod. Now, the whole claim of Costa Rica is based upon the assumption that on April 15, 1858, the date of the treaty, a connection existed between the island and the eastern headland, and that this converted the island into mainland, and carried the initial point of the boundary over to the western extremity of the island. To this claim there are at least two replies, either one seeming to me conclusive. First, the exact state of the bar on that day can not be definitely proven, which would seem to be necessary before drawing important conclusions. However, as the date was near the end of the dry season, it is most probable that there was such a connection between the island and the eastern Costa Rican shore as has been described. But even if that be true, it would be unreasonable to suppose that such temporary connection could operate to change permanently the geographical character and political ownership of the island. The same principle, if allowed, would give to Costa Rica every island in the river to which sand bars from her shore had made out during that dry season. But throughout the treaty the river is treated and regarded as an outlet Annex 2 90 AWARD OF 30 SEPTEMBER 1897 219 of commerce. This implies that it is to be considered as in average condition of water, in which condition alone it is navigable. But the overwhelming consideration in the matter is that by the use of the name of Punta de Castillo for the starting point, instead of the name Punta Arenas, the makers of the treaty intended to designate the mainland on the east of the harbor. This has already been discussed, but no direct reply was made to the argument of Costa Rica quoting three authors as applying the name Punta de Castillo to the western extremity of the before-mentioned island, the point invariably called Point Arenas by all the naval and other officers, surveyors, and engineers who ever mapped it. These authors are L. Montufar, a Guatemalan, in 1887; J. D. Gamez, a Nicaraguan, in 1889, and E. G. Squier, an American, date not given exactly, but subsequent to the treaty. Even of these, the last two merely used, once each, the name Punta de Castillo as an alternate for Punta Arenas. Against this array of authority we have, first, an innumerable number of other writers clearly far more entitled to confidence; second, the original makers of all the maps, as before pointed out, and third, the framers of the treaty itself, by their use of Punta de Castillo in Article V. It must be borne in mind that for some years before the making of this treaty Punta Arenas had been by far the most important and conspicuous point in the bay. On it were located the wharves, workshops, offices, etc., of Vanderbilt’s great transit company, conducting the through line from New York to San Francisco during the gold excitement of the early fifties. Here the ocean and river steamers met and exchanged passengers and cargo. This was the point sought to be controlled by Walker and the filibusters. The village of San Juan cut no figure at all in comparison, and it would doubtless be easy to produce by hundreds references to this point as Punta Arenas by naval and diplomatic officers of all prominent nations, by prominent residents and officials, and by engineers and surveyors constantly investigating the canal problem, and all having a personal knowledge of the locality. In view of all these circumstances, the jealousy with which each party to the treaty defined what it gave up and what it kept, the prominence and importance of the locality, the concurrence of all the original maps in the name, and its universal notoriety, I find it impossible to conceive that Nicaragua had conceded this extensive and important territory to Costa Rica, and that the latter’s representative had failed to have the name Punta Arenas appear anywhere in the treaty. And for reasons so similar that it is unnecessary to repeat them, it is also impossible to conceive that Costa Rica should have accepted the Taura as her boundary and that Nicaragua’s representative should have entirely failed to have the name Taura appear anywhere in the treaty. Having then designated generally the mainland east of Harbor Head as the location of the initial point of the boundary line, it now becomes necessary Annex 2 91 220 COSTA RICA/NICARAGUA to specify more minutely, in order that the said line may be exactly located and permanently marked. The exact location of the initial point is given in President Cleveland’s award as the “extremity of Punta de Castillo, at the mouth of the San Juan de Nicaragua River, as they both existed on the 15th of April 1858”. A careful study of all available maps and comparisons between those made before the treaty and those of recent date made by boards of engineers and officers of the canal company, and one of to-day made by yourselves to accompany this award, makes very clear one fact: The exact spot which was the extremity of the headland of Punta de Castillo April 15, 1858, has long been swept over by the Caribbean Sea, and there is too little concurrence in the shore outline of the old maps to permit any certainty of statement of distance or exact direction to it from the present headland. It was somewhere to the northeastward, and probably between 600 and 1,600 feet distant, but it can not now be certainly located. Under these circumstances it best fulfills the demands of the treaty and of President Cleveland’s award to adopt what is practically the headland of to-day, or the northwestern extremity of what seems to be the solid land, on the east side of Harbor Head Lagoon. I have accordingly made personal inspection of this ground, and declare the initial line of the boundary to run as follows, to wit: Its direction shall be due northeast and southwest, across the bank of sand, from the Caribbean Sea into the waters of Harbor Head Lagoon. It shall pass, at its nearest point, 300 feet on the northwest side from the small hut now standing in that vicinity. On reaching the waters of Harbor Head Lagoon the boundary line shall turn to the left, or southeastward, and shall follow the water’s edge around the harbor until it reaches the river proper by the first channel met. Up this channel, and up the river proper, the line shall continue to ascend as directed in the treaty. I am, gentlemen, very respectfully, your obedient servant, E. P. ALEXANDER. Annex 2 92 AWARD OF 30 SEPTEMBER 1897 221 SKETCH OF THE HARBOR OF GREYTOWN – 1897 Annex 2 93 REPORTS OF INTERNATIONAL ARBITRAL AWARDS RECUEIL DES SENTENCES ARBITRALES Second award under the Convention between Costa Rica and Nicaragua of 8 April 1896 for the demarcation of the boundary between the two Republics 20 December 1897 VOLUME XXVIII pp. 223-225 NATIONS UNIES - UNITED NATIONS Copyright (c) 2007 Annex 2 94 __________ SECOND AWARD OF THE ENGINEER-UMPIRE, UNDER THE CONVENTION BETWEEN COSTA RICA AND NICARAGUA OF 8 APRIL 1896 FOR THE DEMARCATION OF THE BOUNDARY BETWEEN THE TWO REPUBLICS, DECISION OF 20 DECEMBER 1897∗ DEUXIÈME SENTENCE ARBITRALE RENDUE PAR LE SURARBITRE INGÉNIEUR, EN VERTU DE LA CONVENTION ENTRE LE COSTA RICA ET LE NICARAGUA DU 8 AVRIL 1896 POUR LA DÉMARCATION DE LA FRONTIÈRE ENTRE LES DEUX RÉPUBLIQUES, DÉCISION DU 20 DÉCEMBRE 1897∗∗ Interpretation of treaty of delimitation – during demarcation process, accuracy of the measurement of the border-line is not as important as the finding natural landmarks, provided there is agreement between the two Parties – in case of disagreement, the view of the party favouring greater accuracy must prevail. International boundary – natural changes of the banks of a river serving as an international boundary – determination of future changes made easier thanks to measurement and demarcation. Interprétation d’un traité de délimitation – durant la procédure de démarcation, l’exactitude du métrage de la ligne frontière est moins importante que l’établissement de repères naturels, sous réserve de l’accord des deux Parties – en cas de désaccord, la position de la Partie en faveur de la plus grande exactitude doit prévaloir. Frontière internationale – altérations naturelles des rives d’un fleuve servant de frontière internationale – détermination des modifications futures facilitée par le métrage et la démarcation. * * * * * Second award rendered, to San Juan del Norte, on December 20, 1897, in the boundary question between Nicaragua and Costa Rica.∗∗∗ In pursuance once again of the duties assigned me by my commission as engineer-arbitrator to your two bodies, I have been called upon to decide on the matter submitted to me in the record dated the 7th of this month, as per the following paragraph of that record: “The Costa Rican Commission proposed ∗ Reprinted from H. La Fontaine, Pasicrisie Internationale: Histoire Documentaire des Arbitrages Internationaux (1794-1900), Imprimerie Stampelli & CIE, Berne, 1902, p.532. ∗∗ Reproduit de H. La Fontaine, Pasicrisie Internationale: Histoire Documentaire des Arbitrages Internationaux (1794-1900), Imprimerie Stampelli & CIE, Berne, 1902, p,532. ∗∗∗ Original Spanish version, translated by the Secretariat of the United Nations. Annex 2 95 224 COSTA RICA/NICARAGUA that we proceed to the measurement of the line that ran from the starting point and continued along the shore of Harbor Head and thence along the shore around the harbor until it reaches the San Juan river proper by the first channel met and thence along the bank of the river to a point three miles below Castillo Viejo and that a map should be made of such line and that all of that should be set down in the daily record. The Nicaraguan Commission expressed the view that the measurement and mapping work on that portion of the line was pointless and worthless because, according to the Award by General E. P. Alexander, the left bank of the Harbor and of the river formed the boundary and that therefore the dividing line was subject to change and not permanent. Therefore, the map and any data obtained shall never correspond to the actual dividing line. To that end, the two Commissions have decided to hear the decision that the arbitrator would render within a week to their respective arguments submitted to him on that question.” The above-mentioned arguments of each party have been received and duly considered. It should be noted, for a clearer understanding of the question at hand, that the San Juan river runs through a flat and sandy delta in the lower portion of its course and that it is obviously possible that its banks will not only gradually expand or contract but that there will be wholesale changes in its channels. Such changes may occur fairly rapidly and suddenly and may not always be the result of unusual factors such as earthquakes or major storms. Examples abound of previous channels now abandoned and banks that are now changing as a result of gradual expansions or contractions. Today’s boundary line must necessarily be affected in future by all these gradual or sudden changes. But the impact in each case can only be determined by the circumstances of the case itself, on a case-by-case basis in accordance with such principles of international law as may be applicable. The proposed measurement and demarcation of the boundary line will not have any effect on the application of those principles. The fact that the line has been measured and demarcated will neither increase nor decrease any legal standing that it might have had it not been measured or demarcated. The only effect obtained from measurement and demarcation is that the nature and extent of future changes may be easier to determine. There is no denying the fact that there is a certain contingent advantage to being always able to locate the original line in future. But there may well be a difference of opinion as to how much time and expense needs to be spent in order to obtain such a contingent advantage. That is the difference now between the two Commissions. Costa Rica wants to have that future capacity. Nicaragua feels that the contingent benefit is not worth the current expenditure. Annex 2 96 AWARD OF 20 DECEMBER 1897 225 In order to decide which one of these views should hold sway, I have to abide by the spirit and letter of the 1858 Treaty and to determine whether there is anything in either point of view that is applicable to the question. I find both things in article 3. Article 2 describes the entire dividing line from the Caribbean Sea to the Pacific and article 3 continues thus: “measurements corresponding to this dividing line shall be taken in whole or in part by the Government commissioners, who shall agree on the time required for such measurements to be made. The commissioners shall be empowered to diverge slightly from the curve around El Castillo, from the line parallel to the banks of the river and lake, or from the straight astronomical line between Sapoá and Salinas, provided that they can agree upon this, in order to adopt natural landmarks.” The entire article is devoted to prescribing how the Commissioners should perform their task. It allows them to dispense with a few details because it says that the whole or part of the line may be measured and implies that accuracy is not as important as finding natural landmarks. But the condition expressly stipulated in the latter case and clearly understood also in the former is that the two Commissions must agree. Otherwise, the line in its entirety must be measured, following all the practical steps described in article 2. Clearly, therefore, the consequence of any disagreement on the question of whether the measurement is more or less accurate must be that the view of the party favouring greater accuracy should prevail. I therefore announce my award as follows: the Commissioners shall immediately proceed to measuring the line from the starting point to a point three miles below El Castillo Viejo, as proposed by Costa Rica. Annex 2 97 Annex 3 Figures of the Counter Memorial 98 99 0 1 km Punta Castilla Harbour Head lagoon Imagery date: 17 January 2017 Rio San Juan Greytown airstrip Figure 2-1 General Geography Annex 3 100 0 1 2 3 4 5 km Coastline based on January 2017 imagery Equidistance according to Costa Rica Rio San Juan Nicaraguan territorial sea Nicaraguan territorial sea Costa Rican territorial sea Costa Rican territorial sea A B C Harbor Head lagoon Punta Castilla Figure 2-2 Three Land Boundary Termini and an Enclaved Lagoon, according to Costa Rica Annex 3 101 Sketch Map attached to the First Alexander Award, 1897 Figure 3-1 Annex 3 102 9 Figure 2.1: Satellite Image of 3 October 2016 October 2016 Satellite Image used by Costa Rica Figure 4-1 Ref: CRM Figure 2.1 Annex 3 103 1960 Aerial Image Figure 4-2 Annex 3 104 0 200 400 100 Meters ´ Drone Video Captures and Locations from December 2016 Site Visit (Eastern Side). Satellite Image Date: 02 December, 2016. Figure 4.3 A Annex 3 105 0 200 400 100 Meters ´ Drone Video Captures and Locations from December 2016 Site Visit (Western Side). Satellite Image Date: 02 December, 2016. Figure 4.3 B Annex 3 106 0 200 400 100 Meters ´ Drone Video Captures and Locations from March 2017 Site Visit (Western Side). Satellite Image Date: 10 March, 2017. Figure 4.4 A 0 200 400 100 Meters ´ Drone Video Captures and Locations from March 2017 Site Visit (Eastern Side). Satellite Image Date: 10 March, 2017. Figure 4.4 B Annex 3 107 0 200 400 100 Meters ´ Drone Video Captures and Locations from March 2017 Site Visit (Eastern Side). Satellite Image Date: 10 March, 2017. Figure 4.4 B Annex 3 108 31 48 below. marine erosion. and 2015 oral hearings, as well as the Nicaraguan new map of 2011, A satellite image displayed during both the 2013 are reproduced as Figures 2.8 and 2.9 Figure 2.8: Satellite Image of 14 September 2013 including Nicaraguan camp and the location of the disappeared sandbar coordinates, Certain Activities case, New Request for Provisional Measures, Costa Rica’s Judges’ Folder, 16 October 2013, tab 5; Merits, Oral Hearings, Costa Rica’s Judges’ Folder, 28 April 2015, Tab 22 48 CR 2015/14, p. 31, para 21 (Kohen) 51 50 proceeded with the dismantling of the military camp identified by the Court in paragraph 46 of the Order.”73 Figure 3.2: Satellite Image of 30 June 2013 showing the location of Nicaragua’s military camp on the Costa Rican beach of Isla Portillos 3.4. Thereafter, it appears that Nicaragua reinstalled and maintained its military camp on the sandbar directly in front of Los Portillos/Harbor Head Lagoon. An aerial photograph of 8 March 2016 (Figure 3.3) and a satellite image of 5 July 2016 (Figure 3.4) show the camp located on the sandbar. 73 Letter from Nicaragua to the International Court of Justice, Reference HOLEMB-252, 9 December 2013, Annex 55, p 2. CRM Figure 3.2 Satellite image of 30 June 2013 CRM Figure 2.8 Satellite image of 14 September 2013 Satellite Images used by Costa Rica showing the channel between Harbor Head lagoon and Rio San Juan Figure 4.5 0 1 km Punta Castilla Harbour Head lagoon Imagery date: 17 January 2017 Rio San Juan Greytown airstrip Barrier sand bar Islas Portillos Barrier sand bar Channel/ lagoon Channel Channel Figure 4-6 The Present Day Channel connecting Harbor Head lagoon and Rio San Juan Annex 3 109 0 1 km Punta Castilla Harbour Head lagoon Imagery date: 17 January 2017 Rio San Juan Greytown airstrip Barrier sand bar Islas Portillos Barrier sand bar Channel/ lagoon Channel Channel Figure 4-6 The Present Day Channel connecting Harbor Head lagoon and Rio San Juan Annex 3 110 Map of San Juan del Norte - 1890 Figure 4-7 Source: UKHO archive OCB2012-D1 Annex 3 111 Map of Greytown Harbor - 1899 Figure 4-8 Source: Nicaragua Canal Commission (Library of Congress) Annex 3 112 Greytown to Colorado River - 1903 Figure 4-9 Source: Caribbean and Pacific Transit Co Ltd (Library of Congress) Annex 3 113 Source: CA CRM Annex 222 IGN Costa Rica/US Corps of Engineers San Juan del Norte (1966) Figure 4-10 Annex 3 114 Punta Castilla (1970) Figure 4-11 Source: CA CRM Annex 179 IGN Costa Rica/ US Corps of Engineers Annex 3 115 Barra del Colorado (1970) Figure 4-12 Source: CA CRM Annex 180 IGN Costa Rica Annex 3 116 Aerial Image (1961) Figure 4-13 Source: CA CRM page 342 Thorne report Wide channel entrance Annex 3 117 Channel entrance Channel entrance Satellite Image (1981) Figure 4-14 Source: CA CRM page 344 Thorne report Annex 3 118 Source: CA CRM Annex 216 Costa Rica National Cadastre (2006 ) Figure 4-15 Annex 3 119 0 1 km Punta Castilla Harbour Head lagoon Imagery date: 17 January 2017 Rio San Juan Greytown airstrip Figure 4-16 Depiction of the boundary on 2017 satellite imagery Land boundary Annex 3 120 Boundaries accepted by Costa Rica Figure 4-17 Source: CA CRM Annex 153 Annex 3 121 185 Annex 61 Figure 4-18 Costa Rica’s Depiction of the Land Boundary (Certain Activities hearings, 2015) Source: CRM Annex 61 Annex 3 122 189 Annex 62 Figure 4-19 Nicaragua’s Depiction of the Land Boundary (Certain Activities hearings, 2015) Source: CRM Annex 62 Annex 3 123 A. CA CRM Annex 193 B. CA CRM Figure 4.10 C. CA CRM Annex 178v C. CA CRM Annex 178 D. CA CRM Annex 179 D. CA CRM Annex 179 C. CA CRM Annex 180 E. CA CRM Annex 180 F. CA CRM Annex 182 F. CA CRM Annex 182 E. CA CRM Annex 184 F. CA CRM Annex 195 Costa Rica’s Consistent Depiction of the Land Boundary Source: Certain Activities Costa Rica Memorial Figure 4-20 Annex 3 124 Figure 4.21 Military Camp 2010 Annex 3 125 Figure 4.22 Repositioning of the Military Camp in 2010 Annex 3 126 Figure 4.23 The Military Camp in 2013-17 Satellite images showing the military camp in: 1. 26 November 2013 2. 26 September 2014 3. 11 January 2015 4. 12 December 2015 5. 4 August 2016 6. 29 November 2016 7. 11 January 2017 Annex 3 127 ± 0 25 50 12.5 Meters 26-Nov-2013 Annex 3 128 ± 0 25 50 12.5 Meters 26-Sept-2014 Annex 3 129 ± 0 25 50 12.5 Meters 11-Jan-2015 Annex 3 130 ± 0 25 50 12.5 Meters 12-Dec-2015 Annex 3 131 ± 0 25 50 12.5 Meters 4-Aug-2016 Annex 3 132 ± 0 25 50 12.5 Meters 29-Nov-2016 Annex 3 133 ± 0 25 50 12.5 Meters 17-Jan-2017 Annex 3 134 Annex 4 Drone Video from December 2016 visit (joined video 6&7 December 2016) -Drone Video on DVD in Pocket located on the back cover- 135 Annex 4 Drone Video from December 2016 visit (joined video 6&7 December 2016) -Drone Video on DVD in Pocket located on the back cover- 136 137 Annex 5 Satellite Image March 10, 2011. 138 139 ± 0 50 100 25 Meters Annex 5
Counter-Memorial of the Republic of Nicaragua