An interesting ruling

As reported yesterday, the United Nations International Court of Justice (ICJ), in The Hague, on Wednesday, ruled on a border dispute between Costa Rica and Nicaragua. The judgment would undoubtedly have piqued the interest of our government’s diplomats and experts in international law.

The ICJ found that Nicaragua violated Costa Rica’s sovereign territory and must compensate its neighbour. More precisely, the ICJ upheld Costa Rica’s sovereignty over the northern tip of Calero Island (also known as Portillos Island), lying between the San Juan River (over which Nicaragua enjoys sovereignty and which marks the internationally recognised frontier between the two countries) and one of its tributaries, the Colorado River, which belongs to Costa Rica.

The approximately three square kilometres of wetlands, part of a Costa Rican nature preserve on the island, were occupied by Nicaraguan troops in October 2010, reopening a dispute dating back to 1850, even though a series of settlements in the course of the intervening 150 years had seemed to have resolved the periodic differences of opinion between the two countries.

In 1858, the Cañas-Jerez Treaty gave Nicaragua sovereignty over the San Juan River but granted Costa Rica navigation rights on the river for commercial purposes. The treaty was subsequently reaffirmed in arbitration by President Grover Cleveland of the United States in 1888, again in an 1897 award determined by US engineer Edward Porter Alexander – a friend of Mr Cleveland’s and when the Americans were eyeing the possibility of an inter-oceanic canal running through Nicaragua – and through an interpretation of the Central American Court of Justice in 1916.

Until October 2010, when Nicaraguan dredging operations in the San Juan River led to incursions into Costa Rican territory, Nicaraguan maps had shown all of Calero Island as part of Costa Rica. Now, however, Nicaragua claimed that, contrary to the map attached to the Alexander Award, a small intermittent channel about 3 kilometres south of the northern tip of the island and not the main San Juan River channel was the correct border. To back this up, the next month, Nicaraguan soldiers cleared forest along this channel and deepened it.

After some confusion in the Costa Rican government over whether to turn to the Organization of American States (OAS) or the ICJ – former President Oscar Arías accused then President Laura Chinchilla of being “naïve” in going first to the OAS – Costa Rica filed proceedings against Nicaragua in The Hague, in November 2010. This was also the preferred route of President Daniel Ortega of Nicaragua as, one year after the Costa Rican denunciation, Nicaragua lodged its own counterclaim against the construction by the Costa Ricans of a 160-kilometre road along their side of the San Juan, citing damage done to the San Juan ecosystem.

Costa Rica reportedly based its case on international law with particular emphasis on the Alexander Award and Mr Alexander’s mapping of the San Juan estuary, which although subject to possible natural changes did not allow for artificially-dug channels. The ICJ judgment upheld this fundamental argument, finding that not only had Nicaragua violated Costa Rican sovereignty by opening up three channels to the Caribbean Sea and by sending soldiers to the area, but had also ignored measures imposed by the Court to prevent such works. In addition, the judgment found that Managua had ignored Costa Rica’s rights to use the San Juan River.

Nicaragua now has 12 months to pay Costa Rica mutually agreed compensation for material damage done to the Calero wetlands, failing which the ICJ itself will determine the quantum of the settlement.

As seems to be the norm in ICJ decisions, both parties shouldered part of the blame for arguably the worst diplomatic crisis in the history of relations between the two countries The judges did not support the Costa Rican contention that “hostile acts” had taken place and, in response to the Nicaraguan countersuit against the Costa Rican road, they ruled that the Costa Ricans had broken international law in not presenting environmental impact studies to justify the building of the road; they did not, however, award costs to the Nicaraguan side.

Nicaraguan Vice-President Moisés Omar Halleslevens has hailed the ruling as “balanced” and it has been accepted by President Ortega, fuelling hopes for a dramatic improvement in bilateral relations, which had come under further strain due to Nicaragua’s decision last month to close its border, leaving some 5,000 Cuban migrants stranded in Costa Rica.

Most importantly though, the ruling is binding and non-appealable and, with respect to Costa Rica’s sovereignty and territorial integrity, it represents a significant victory for the government of President Luis Guillermo Solís and for the application of international law.


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