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THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 29 September 2005 the Republic of Costa Rica (hereinafter “Costa
Rica”) filed in the Registry of the Court an Application of the same date,
instituting proceedings against the Republic of Nicaragua (hereinafter
“Nicaragua”) with regard to a “dispute concerning navigational and related
rights of Costa Rica on the San Juan River”.
In its Application, Costa Rica seeks to found the jurisdiction of the Court
on the declaration it made on 20 February 1973 under Article 36, paragraph
2, of the Statute, as well as on the declaration which Nicaragua made on 24
September 1929 under Article 36 of the Statute of the Permanent Court of
International Justice and which is deemed, pursuant to Article 36, paragraph
5, of the Statute of the present Court, for the period which it still has to
run, to be acceptance of the compulsory jurisdiction of this Court. Costa
Rica also seeks to found the jurisdiction of the Court on the Tovar-Caldera
Agreement signed between the Parties on 26 September 2002. In addition,
Costa Rica invokes as a basis of the Court’s jurisdiction the provisions of
Article XXXI of the American Treaty on Pacific Settlement, officially
designated, according to Article LX thereof, as the “Pact of Bogotá”.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Registrar
immediately communicated a certified copy of the Application to the
Government of Nicaragua; and, in accordance with paragraph 3 of that
Article, all States entitled to appear before the Court were notified of the
Application.
3. Pursuant to the instructions of the Court under Article 43 of the Rules
of Court, the Registrar addressed to States parties to the Pact of Bogotá
the notifications provided for in Article 63, paragraph 1, of the Statute of
the Court. In accordance with the provisions of Article 69, paragraph 3, of
the Rules of Court, the Registrar moreover addressed to the Organization of
American States the notification provided for in Article 34, paragraph 3, of
the Statute of the Court, and asked that organization whether or not it
intended to furnish observations in writing within the meaning of Article
69, paragraph 3, of the Rules of Court.
4. Since the Court included upon the Bench no judge of the nationality of
either of the Parties, each Party proceeded to exercise its right conferred
by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit
in the case. Costa Rica chose Mr. Antônio Cançado Trindade and Nicaragua Mr.
Gilbert Guillaume. Mr. Cançado Trindade was subsequently elected as a Member
of the Court. Costa Rica informed the Court that it had decided not to
choose a new judge ad hoc.
5. By an Order dated 29 November 2005, the Court fixed 29 August 2006 and 29
May 2007, respectively, as the time-limits for the filing of the Memorial of
Costa Rica and the Counter-Memorial of Nicaragua; those pleadings were duly
filed within the time-limits so prescribed.
6. Referring to Article 53, paragraph 1, of the Rules of Court, the
Government of the Republic of Ecuador and the Government of the Republic of
Colombia respectively asked to be furnished with copies of the pleadings and
documents annexed. Having ascertained the views of the Parties pursuant to
that Article, the Court decided not to grant these requests. The Registrar
communicated the Court’s decision to the Government of the Republic of
Ecuador and the Government of the Republic of Colombia, as well as to the
Parties.
7. By an Order of 9 October 2007, the Court authorized the submission of a
Reply by Costa Rica and a Rejoinder by Nicaragua, and fixed 15 January 2008
and 15 July 2008 as the respective time-limits for the filing of those
pleadings. The Reply and the Rejoinder were duly filed within the
time-limits so prescribed
.
8. By letter of 27 November 2008, the Agent of Costa Rica expressed his
Government’s
desire to produce five new documents, in accordance with Article 56 of the
Rules of Court. As provided for in paragraph 1 of that Article, those
documents were communicated to Nicaragua. By letter of 10 December 2008, the
Agent of Nicaragua informed the Court that his Government did not give its
consent to the production of the requested documents.
The Court decided, pursuant to Article 56, paragraph 2, of the Rules, to
authorize the production of four of the five documents submitted by Costa
Rica, it being understood that Nicaragua would have the opportunity,
pursuant to paragraph 3 of that Article, to comment subsequently thereon and
to submit documents in support of those comments. That decision was
communicated to the Parties by letters from the Registrar dated 18 December
2008.
9. In accordance with Article 53, paragraph 2, of the Rules of Court, the
Court decided, after ascertaining the views of the Parties, that copies of
the pleadings and documents annexed would be made available to the public as
from the opening of the oral proceedings.
10. Public hearings were held between 2 and 12 March 2009, at which the
Court heard the oral arguments and replies of:
For Costa Rica: H.E. Mr. Edgar Ugalde-Alvarez,
Mr. Arnoldo Brenes,
Mr. Sergio Ugalde,
Mr. Lucius Caflisch,
Mr. Marcelo G. Kohen,
Mr. James Crawford,
Ms Kate Parlett.
For Nicaragua: H.E. Mr. Carlos José Argüello Gómez,
Mr. Ian Brownlie,
Mr. Antonio Remiro Brotóns,
Mr. Alain Pellet,
Mr. Paul Reichler,
Mr. Stephen C. McCaffrey.
11. At the hearings, Members of the Court put questions to the Parties, to
which replies were given in writing, within the time-limit fixed by the
President in accordance with Article 61, paragraph 4, of the Rules of Court.
Pursuant to Article 72 of the Rules of Court, each of the Parties submitted
comments on the written replies provided by the other.
*
12. In its Application, the following claims were made by Costa Rica:
“For these reasons, and reserving the right to supplement, amplify or amend
the present Application, as well as to request the Court to establish
provisional measures which might be necessary to protect its rights and to
prevent the aggravation of the dispute, Costa Rica requests the Court to
adjudge and declare that Nicaragua is in breach of its international
obligations as referred to in paragraph 1 of this Application in denying to
Costa Rica the free exercise of its rights of navigation and associated
rights on the San Juan River. In particular the Court is requested to
adjudge and declare that, by its conduct, Nicaragua has violated:
(a) the obligation to facilitate and expedite traffic on the San Juan River
within the terms of the Treaty of 15 April 1858 and its interpretation given
by arbitration on 22 March 1888;
(b) the obligation to allow Costa Rican boats and their passengers to
navigate freely and without impediment on the San Juan River for commercial
purposes, including the transportation of passengers and tourism;
(c) the obligation to allow Costa Rican boats and their passengers while
engaged in such navigation to moor freely on any of the San Juan River banks
without paying any charges, unless expressly agreed by both Governments;
(d) the obligation not to require Costa Rican boats and their passengers to
stop at any Nicaraguan post along the river;
(e) the obligation not to impose any charges or fees on Costa Rican boats
and their passengers for navigating on the river;
(f) the obligation to allow Costa Rica the right to navigate the river in
accordance with Article Second of the Cleveland Award;
(g) the obligation to allow Costa Rica the right to navigate the San Juan
River in official boats for supply purposes, exchange of personnel of the
border posts along the right bank of the San Juan River, with their official
equipment, including the necessary arms and ammunitions, and for the
purposes of protection, as established in the pertinent instruments;
(h) the obligation to collaborate with Costa Rica in order to carry out
those undertakings and activities which require a common effort by both
States in order to facilitate and expedite traffic in the San Juan River
within the terms of the Treaty of Limits and its interpretation given by the
Cleveland Award, and other pertinent instruments;
(i) the obligation not to aggravate and extend the dispute by adopting
measures against Costa Rica, including unlawful economic sanctions contrary
to treaties in force or general international law, or involving further
changes in the régime of navigation and associated rights on the San Juan
River not permitted by the instruments referred to above.
Further, the Court is requested to determine the reparation which must be
made by Nicaragua, in particular in relation to any measures of the kind
referred to in paragraph 10 above.”
Paragraph 10 of the Application reads as follows:
“Costa Rica seeks the cessation of this Nicaraguan conduct which prevents
the free and full exercise and enjoyment of the rights that Costa Rica
possesses on the San Juan River, and which also prevents Costa Rica from
fulfilling its responsibilities under Article II of the 1956 Agreement and
otherwise. In the event that Nicaragua imposes the economic sanctions
referred to above, or any other unlawful sanctions, or otherwise takes steps
to aggravate and extend the present dispute, Costa Rica further seeks the
cessation of such conduct and full reparation for losses suffered.”
13. In the written proceedings, the following submissions were presented by
the Parties:
On behalf of the Government of Costa Rica,
in the Memorial and in the Reply:
“1. For these reasons, and reserving the right to supplement, amplify or
amend the present submissions, Costa Rica requests the Court to adjudge and
declare that Nicaragua is in breach of its international obligations in
denying to Costa Rica the free exercise of its rights of navigation and
related rights on the San Juan.
2. In particular the Court is requested to adjudge and declare that, by its
conduct, Nicaragua has violated:
(a) the obligation to allow all Costa Rican vessels and their passengers to
navigate freely on the San Juan for purposes of commerce, including
communication and the transportation of passengers and tourism;
(b) the obligation not to impose any charges or fees on Costa Rican vessels
and their passengers for navigating on the River;
(c) the obligation not to require persons exercising the right of free
navigation on the River to carry passports or obtain Nicaraguan visas;
(d) the obligation not to require Costa Rican vessels and their passengers
to stop at any Nicaraguan post along the River;
(e) the obligation not to impose other impediments on the exercise of the
right of free navigation, including timetables for navigation and conditions
relating to flags;
(f) the obligation to allow Costa Rican vessels and their passengers while
engaged in such navigation to land on any part of the bank where navigation
is common without paying any charges, unless expressly agreed by both
Governments;
(g) the obligation to allow Costa Rican official vessels the right to
navigate the San Juan, including for the purposes of re-supply and exchange
of personnel of the border posts along the right bank of the River with
their official equipment, including service arms and ammunition, and for the
purposes of protection as established in the relevant instruments, and in
particular Article 2 of the Cleveland Award;
(h) the obligation to facilitate and expedite traffic on the San Juan,
within the terms of the Treaty of 15 April 1858 and its interpretation by
the Cleveland Award of 1888, in accordance with Article 1 of the bilateral
Agreement of 9 January 1956;
(i) the obligation to permit riparians of the Costa Rican bank to fish in
the River for subsistence purposes.
3. Further, the Court is requested to adjudge and declare that by reason of
the above violations, Nicaragua is obliged:
(a) immediately to cease all the breaches of obligations which have a
continuing character;
(b) to make reparation to Costa Rica for all injuries caused to Costa Rica
by the breaches of Nicaragua’s obligations referred to above, in the form of
the restoration of the situation prior to the Nicaraguan breaches and
compensation in an amount to be determined in a separate phase of these
proceedings; and
(c) to give appropriate assurances and guarantees that it shall not repeat
its unlawful
conduct, in such form as the Court may order.”
On behalf of the Government of Nicaragua,
in the Counter-Memorial:
“On the basis of the facts and legal considerations set forth in the
Counter-Memorial, the Court is requested:
To adjudge and declare that the requests of Costa Rica in her Memorial are
rejected, on the following bases:
(a) either because there is no breach of the provisions of the Treaty of 15
April 1858
on the facts;
(b) or, as appropriate, because the obligation breach of which is alleged is
not included in the provisions of the Treaty of 15 April 1858.
Moreover, the Court is also requested to make a formal declaration on the
issues raised by Nicaragua in Section 2 of Chapter 7.”
The relevant part of Section 2 of Chapter 7 of the Counter-Memorial reads as
follows:
“Finally, in view of the above considerations, and in particular those
indicated in Chapter 2 (E), Nicaragua requests the Court to declare that:
(i) Costa Rica is obliged to comply with the regulations for navigation (and
landing) in the San Juan imposed by Nicaraguan authorities in particular
related to matters of health and security;
(ii) Costa Rica has to pay for any special services provided by Nicaragua in
the use of the San Juan either for navigation or landing on the Nicaraguan
banks;
(iii) Costa Rica has to comply with all reasonable charges for modern
improvements in the navigation of the river with respect to its situation in
1858;
(iv) revenue service boats may only be used during and with special
reference to actual transit of the merchandise authorized by Treaty;
(v) Nicaragua has the right to dredge the San Juan in order to return the
flow of water to that obtaining in 1858 even if this affects the flow of
water to other present day recipients of this flow such as the Colorado
River.”
in the Rejoinder:
“On the basis of the facts and legal considerations set forth in the
Counter-Memorial and the Rejoinder, the Court is requested:
To adjudge and declare that the requests of Costs Rica in her Memorial and
Reply are rejected in general, and in particular, on the following bases:
(a) either because there is no breach of the provisions of the Treaty of
Limits of 15 April 1858 or any other international obligation of Nicaragua;
(b) or, as appropriate, because the obligation breach of which is alleged,
is not an obligation under the provisions of the Treaty of Limits of 15
April 1858 or under general international law.
Moreover, the Court is also requested to make a formal declaration on the
issues raised by Nicaragua in Section II of Chapter VII of her
Counter-Memorial and reiterated in Chapter VI, Section I, of her Rejoinder.”
The relevant part of Chapter VI, Section I, of the Rejoinder reads as
follows:
“(i) Costa Rica is obliged to comply with the regulations for navigation
(and landing) in the San Juan imposed by Nicaraguan authorities in
particular related to matters of health and security;
(ii) Costa Rica has to pay for any special services provided by Nicaragua in
the use of the San Juan either for navigation or landing on the Nicaraguan
banks;
(iii) Costa Rica has to comply with all reasonable charges for modern
improvements in the navigation of the river with respect to its situation in
1858;
(iv) revenue service boats may only be used during and with special
reference to actual transit of the merchandise authorized by Treaty;
(v) Nicaragua has the right to dredge the San Juan in order to return the
flow of water to that obtaining in 1858 even if this affects the flow of
water to other present day recipients of this flow such as the Colorado
River.”
14. At the oral proceedings, the following submissions were presented by the
Parties:
On behalf of the Government of Costa Rica,
at the hearing of 9 March 2009:
“Having regard to the written and oral pleadings and to the evidence
submitted by the Parties, may it please the Court to adjudge and declare
that, by its conduct, the Republic of Nicaragua has violated:
(a) the obligation to allow all Costa Rican vessels and their passengers to
navigate freely on the San Juan for purposes of commerce, including
communication and the transportation of passengers and tourism;
(b) the obligation not to impose any charges or fees on Costa Rican vessels
and their passengers for navigating on the River;
(c) the obligation not to require persons exercising the right of free
navigation on the River to carry passports or obtain Nicaraguan visas;
(d) the obligation not to require Costa Rican vessels and their passengers
to stop at any Nicaraguan post along the River;
(e) the obligation not to impose other impediments on the exercise of the
right of free navigation, including timetables for navigation and conditions
relating to flags;
(f) the obligation to allow Costa Rican vessels and their passengers while
engaged in such navigation to land on any part of the bank where navigation
is common without paying any charges, unless expressly agreed by both
Governments;
(g) the obligation to allow Costa Rican official vessels the right to
navigate the San Juan, including for the purposes of re-supply and exchange
of personnel of the border posts along the right bank of the River with
their official equipment, including service arms and ammunition, and for the
purposes of protection as established in the relevant instruments, and in
particular the Second article of the Cleveland Award;
(h) the obligation to facilitate and expedite traffic on the San Juan,
within the terms of the Treaty of 15 April 1858 and its interpretation by
the Cleveland Award of 1888, in accordance with Article 1 of the bilateral
Agreement of 9 January 1956;
(i) the obligation to permit riparians of the Costa Rican bank to fish in
the River for subsistence purposes. Further, the Court is requested to
adjudge and declare that by reason of the above violations, Nicaragua is
obliged:
(a) immediately to cease all the breaches of obligations which have a
continuing character;
(b) to make reparation to Costa Rica for all injuries caused to Costa Rica
by the breaches of Nicaragua’s obligations referred to above, in the form of
the restoration of the situation prior to the Nicaraguan breaches and
compensation in an amount to be determined in a separate phase of these
proceedings; and
(c) to give appropriate assurances and guarantees that it shall not repeat
its unlawful conduct, in such form as the Court may order.
The Court is requested to reject Nicaragua’s request for a declaration.”
On behalf of the Government of Nicaragua,
at the hearing of 12 March 2009:
“On the basis of the facts and legal considerations set forth in the
Counter-Memorial, Rejoinder and oral pleadings,
May it please the Court to adjudge and declare that:
The requests of Costa Rica in her Memorial, Reply and oral pleadings are
rejected in general, and in particular, on the following bases:
(a) either because there is no breach of the provisions of the Treaty of
Limits of 15 April 1858 or any other international obligation of Nicaragua;
(b) or, as appropriate, because the obligation breach of which is alleged,
is not an obligation under the provisions of the Treaty of Limits of 15
April 1858 or under general international law.
Moreover the Court is also requested to make a formal declaration on the
issues raised by Nicaragua in Section II of Chapter VII of her
Counter-Memorial, in Section I, Chapter VI, of her Rejoinder and as
reiterated in these oral pleadings.”
***
I. GEOGRAPHICAL AND HISTORICAL CONTEXT AND ORIGIN OF THE DISPUTE
15. The San Juan river runs approximately 205 km from Lake Nicaragua to the
Caribbean Sea (see sketch-maps Nos. 1 and 2). Some 19 km from the Caribbean
Sea it divides into two branches: the San Juan itself continues as the
northerly of the two branches and empties into the
Caribbean Sea at the bay of San Juan del Norte; the Colorado river is the
southern and larger of the two branches and runs entirely within Costa Rica
reaching the Caribbean Sea at Barra de Colorado.
16. Part of the border between Costa Rica and Nicaragua runs along the right
bank (i.e. the Costa Rican side) of the San Juan river from a point three
English miles below Castillo Viejo, a small town in Nicaragua, to the end of
Punta de Castilla, where the river enters the Caribbean Sea. Between Lake
Nicaragua and the point below Castillo Viejo, the river runs entirely
through Nicaraguan territory.
17. Both Costa Rica and Nicaragua, which had been under Spanish colonial
rule, became independent States in 1821. Shortly after independence, Costa
Rica and Nicaragua, together with
El Salvador, Guatemala and Honduras, decided to constitute the Federal
Republic of Central America. In 1824 the people living in the district of
Nicoya on the Pacific coast, originally within
Nicaragua, opted by plebiscite to become part of Costa Rica. On 9 December
1825 the Federal Congress of Central America issued a decree which provided
that Nicoya would be “for the time being . . . separated from the State of
Nicaragua and annexed to that of Costa Rica”. The situation regarding Nicoya
remained unchanged at the time of the dissolution of the Federal Republic of
Central America in 1839. Thereafter, Nicaragua did not however recognize
Nicoya as belonging to Costa Rica.
18. During the mid 1850s, Nicaragua underwent a period of internal conflict
which involved a group of American adventurers, known as “filibusters” (“filibusteros”),
led by William Walker. The Government of Costa Rica as well as those of El
Salvador, Guatemala and Honduras joined Nicaragua’s efforts to defeat the
filibusters. In May 1857 Walker capitulated and abandoned Nicaraguan
territory. Following the defeat of the filibusters, war broke out between
Costa Rica and Nicaragua. At the end of those hostilities, the two countries
engaged in negotiations to settle
Punta de Castilla
Sketch-map No. 1
Sketch-map No. 2
outstanding bilateral matters between them, relating, inter alia, to their
common boundary, to the
navigational régime on the San Juan river, and to the possibility of
building an inter-oceanic canal across the Central American isthmus.
19. On 6 July 1857 a Treaty of Limits was signed, dealing with territorial
limits and the status of the San Juan river, but was not ratified by Costa
Rica. On 8 December 1857 a Treaty of Peace was signed by the Parties but was
not ratified by either Costa Rica or Nicaragua. Through the mediation of the
Salvadoran Minister for Foreign Affairs, the Governments of Costa Rica and
Nicaragua reached agreement on 15 April 1858 on a Treaty of Limits, which
was ratified by Costa Rica on 16 April 1858 and by Nicaragua on 26 April
1858. The 1858 Treaty of Limits fixed the course of the boundary between
Costa Rica and Nicaragua from the Pacific Ocean to the Caribbean Sea.
According to the boundary thus drawn the district of Nicoya lay within the
territory of Costa Rica. Between a point three English miles from Castillo
Viejo and the Caribbean Sea, the Treaty fixed the boundary along the right
bank of the San Juan river. It established Nicaragua’s dominion and
sovereign jurisdiction over the waters of the San Juan river, but at the
same time affirmed Costa Rica’s navigational rights “con objetos de comercio”
on the lower course of the river (Article VI). The 1858 Treaty established
other rights and obligations for both parties, including, inter alia, an
obligation to contribute to the defence of the common bays of San Juan del
Norte and Salinas as well as to the defence of the San Juan river in case of
external aggression (Article IV), an obligation on behalf of Nicaragua to
consult with Costa Rica before entering into any canalization or transit
agreements regarding the San Juan river (Article VIII) and an obligation not
to commit acts of hostility against each other (Article IX).
20. Following challenges by Nicaragua on various occasions to the validity
of the 1858 Treaty, the Parties submitted the question to arbitration by the
President of the United States. The Parties agreed in addition that if the
1858 Treaty were found to be valid, President Cleveland should also decide
whether Costa Rica could navigate the San Juan river with vessels of war or
of the revenue service. In his Award rendered on 22 March 1888, President
Cleveland held that the 1858 Treaty was valid. He further stated, with
reference to Article VI of the 1858 Treaty, that Costa Rica did not have the
right of navigation on the River San Juan with vessels of war, but that it
could navigate with such vessels of the Revenue Service as may be connected
to navigation “for the purposes of commerce”.
21. Following the Cleveland Award, a boundary commission was established to
demarcate the boundary line. An engineer, Mr. Edward Alexander, was charged
with the task of resolving any “disputed point or points” which might arise
in the field during the demarcation process, which began in 1897 and was
concluded in 1900. Mr. Alexander rendered five awards to this end.
22. On 5 August 1914, Nicaragua signed a treaty with the United States (the
Chamorro-Bryan Treaty) which granted the United States perpetual and
“exclusive proprietary rights” for the construction and maintenance of an
inter-oceanic canal through the San Juan river. On 24 March 1916 Costa Rica
filed a case against Nicaragua before the Central American Court of Justice
claiming that Nicaragua had breached its obligation to consult with Costa
Rica prior to entering into any canalization project in accordance with
Article VIII of the 1858 Treaty. On 30 September 1916, the Central American
Court of Justice ruled that, by not consulting Costa Rica, Nicaragua had
violated the rights guaranteed to the latter by the 1858 Treaty of Limits
and the 1888 Cleveland Award.
23. On 9 January 1956 Costa Rica and Nicaragua concluded an Agreement (the
Fournier-Sevilla Agreement) according to the terms of which the parties
agreed to facilitate and expedite traffic in particular through the San Juan
river and agreed to co-operate to safeguard the common border.
24. In the 1980s various incidents started to occur relating to the
navigational régime of the San Juan river. During that period Nicaragua
introduced certain restrictions on Costa Rican navigation on the San Juan
river which it justified as temporary, exceptional measures to protect
Nicaragua’s national security in the context of an armed conflict. Some of
the restrictions were suspended when Costa Rica protested. During the
mid-1990s further measures were introduced by Nicaragua, including the
charging of fees for passengers travelling on Costa Rican vessels navigating
on the San Juan river and the requirement for Costa Rican vessels to stop at
Nicaraguan Army posts along the river.
25. On 8 September 1995 the Commander-in-Chief of the Nicaraguan Army and
the Costa Rican Minister of Public Security signed a document, known as the
Cuadra-Castro Joint Communiqué, which provided for the co-ordination of
operations in the border areas of the two States against the illegal
trafficking of persons, vehicles and contraband.
26. In July 1998 further disagreements between the Parties regarding the
extent of Costa Rica’s navigational rights on the San Juan river led to the
adoption by Nicaragua of certain measures. In particular, on 14 July 1998,
Nicaragua prohibited the navigation of Costa Rican vessels that transported
members of Costa Rica’s police force. On 30 July 1998, the Nicaraguan
Minister of Defence and the Costa Rican Minister of Public Security signed a
document, known as the Cuadra-Lizano Joint Communiqué. The text allowed for
Costa Rican armed police vessels to navigate on the river to re-supply their
boundary posts on the Costa Rican side, provided that the Costa Rican agents
in those vessels only carried their service arms and prior notice was given
to the Nicaraguan authorities, which could decide on whether the Costa Rican
vessels should be accompanied by a Nicaraguan escort. On 11 August 1998,
Nicaragua declared that it considered
the Cuadra-Lizano Joint Communiqué to be legally null and void. Costa Rica
did not accept this
unilateral declaration. Differences regarding the navigational régime on the
San Juan river persisted between the Parties.
27. On 24 October 2001, Nicaragua made a reservation to its declaration
accepting the jurisdiction of the Court (see paragraph 1 above), according
to which it would no longer accept the jurisdiction of the Court in regard
to “any matter or claim based on interpretations of treaties or arbitral
awards that were signed and ratified or made, respectively, prior to 31
December 1901”. Under the Tovar-Caldera Agreement, signed by the Parties on
26 September 2002, Nicaragua agreed to a three year moratorium with regard
to the reservation it had made in 2001 to its declaration accepting the
jurisdiction of the Court. For its part, Costa Rica agreed that during the
same three year period it would not initiate any action before the
International Court of Justice nor before any other authority on any matter
or protest mentioned in treaties or agreements currently in force between
both countries.
28. Once the agreed three year period had elapsed without the Parties having
been able to settle their differences, Costa Rica, on 29 September 2005,
instituted proceedings before the Court against Nicaragua with regard to its
disputed navigational and related rights on the San Juan river
(see paragraph 1 above). Nicaragua has not raised any objections to the
jurisdiction of the Court to entertain the case.
*
29. Taking account of the subject of the dispute as summarized above and of
the Parties’ submissions and arguments, the Court will proceed in the
following manner.
It will first determine the extent of Costa Rica’s right of free navigation
on the San Juan river (II).
It will next ascertain whether, and to what extent, within the ambit of the
right thus defined, Nicaragua has the power to regulate navigation by Costa
Rican boats and whether the specific measures it has decided and put into
effect to this end during the period of the dispute are compatible with
Costa Rica’s rights (III).
It will then consider the question of the right which Costa Rica claims for
inhabitants of the Costa Rican bank of the river to engage in subsistence
fishing (IV).
Finally, in the light of its reasoning on the preceding points, it will
consider the Parties’ claims as presented to it in their final submissions,
in respect in particular of the appropriate remedies (V).
II. COSTA RICA’S RIGHT OF FREE NAVIGATION ON THE SAN JUAN RIVER
30. The Parties agree that Costa Rica possesses a right of free navigation
on the section of the San Juan river where the right bank, i.e. the Costa
Rican side, marks the border between the two States by virtue of the Treaty
of Limits (the Jerez-Cañas Treaty) concluded between them on 15 April 1858.
This is the part of the river which runs from a point three English miles
below Castillo Viejo, a town in Nicaraguan territory, to the mouth of the
river at the Caribbean Sea (see
paragraph 16 above).
Upstream from the point referred to above, the San Juan flows entirely in
Nicaraguan territory from its source in Lake Nicaragua, in the sense that
both its banks belong to Nicaragua. The section of the river in which the
right bank belongs to Costa Rica, the section at issue in this dispute, is
some 140 km long.
31. While it is not contested that the section of the river thus defined
belongs to Nicaragua, since the border lies on the Costa Rican bank, with
Costa Rica possessing a right of free navigation, the Parties differ both as
to the legal basis of that right and, above all, as to its precise extent,
in other words as to the types of navigation which it covers.
1. The legal basis of the right of free navigation
32. According to Costa Rica, its right of free navigation on the part of the
San Juan river that is in dispute derives on the one hand from certain
treaty provisions in force between the Parties, primarily but not
exclusively the Treaty of Limits of 15 April 1858, and on the other hand
from the rules of general international law that are applicable, even in the
absence of treaty provisions, to navigation on “international rivers”. The
San Juan is said to fall into this category, at least as regards the section
whose course follows the border, with Costa Rica thus possessing a customary
right of free navigation in its capacity as a riparian State.
33. According to Nicaragua, on the contrary, the San Juan is not an
“international river”, since it flows entirely within the territory of a
single country by virtue of the provisions of the 1858 Treaty of Limits,
which establish the border in such a way that no part of the river falls
under the sovereignty of a State other than Nicaragua. Moreover, Nicaragua
challenges the existence of a general régime that might be applicable, under
customary international law, to rivers whose course, or one of whose banks,
constitutes the border between two States, and more widely to “international
rivers”. Lastly, according to Nicaragua, even if such a régime were to
exist, it would be superseded in this case by the treaty provisions which
define the status of the San Juan river and govern the riparian States’
right of navigation. It is these special provisions which should be applied
in order to settle the present dispute, in any event that part of it
relating to the right of navigation on the river.
34. The Court does not consider that it is required to take a position in
this case on whether and to what extent there exists, in customary
international law, a régime applicable to navigation on “international
rivers”, either of universal scope or of a regional nature covering the
geographical
area in which the San Juan is situated. Nor does it consider, as a result,
that it is required to settle
the question of whether the San Juan falls into the category of
“international rivers”, as Costa Rica maintains, or is a national river
which includes an international element, that being the argument of
Nicaragua.
35. Indeed, even if categorization as an “international river” would be
legally relevant in respect of navigation, in that it would entail the
application of rules of customary international law to that question, such
rules could only be operative, at the very most, in the absence of any
treaty provisions that had the effect of excluding them, in particular
because those provisions were intended to define completely the régime
applicable to navigation, by the riparian States on a specific river or a
section of it.
36. That is precisely the case in this instance. The 1858 Treaty of Limits
completely defines the rules applicable to the section of the San Juan river
that is in dispute in respect of navigation. Interpreted in the light of the
other treaty provisions in force between the Parties, and in accordance with
the arbitral or judicial decisions rendered on it, that Treaty is sufficient
to settle the question of the extent of Costa Rica’s right of free
navigation which is now before the Court. Consequently, the Court has no
need to consider whether, if these provisions did not exist, Costa Rica
could nevertheless have relied for this purpose on rules derived from
international, universal or regional custom.
37. The main provision which founds Costa Rica’s right of free navigation is
contained in Article VI of the 1858 Treaty (see paragraphs 43 and 44 below);
this has been the focus of the arguments exchanged between the Parties as to
the extent of the right of navigation on the San Juan.
Article VI, after conferring on Nicaragua full and exclusive sovereignty (“exclusivamente
el dominio y sumo imperio”) over the whole of the San Juan, from its source
in the lake to its mouth at the sea, grants Costa Rica, on the section of
the river which follows the border between the two States (see paragraph 30
above), a perpetual right (“los derechos perpetuos”) of free navigation “con
objetos de comercio”, according to the terms of the Spanish version of the
Treaty, which is the only authoritative one, the meaning of which the Court
will be required to return to below. In addition, Article VI gives vessels
of both riparian countries the right to land freely on either bank without
being subject to any taxes (“ninguna clase de impuestos”), unless agreed by
both Governments.
38. Other provisions of the 1858 Treaty, though of less importance for the
purposes of the present case, are not without relevance as regards the right
of navigation on the river. This applies in particular to Article IV, which
obliges Costa Rica to contribute to the security of the river “for the part
that belongs to her of the banks”, to Article VIII, which obliges Nicaragua
to consult Costa Rica before entering into any agreements with a third State
for canalization or transit on the river, and of course to Article II, which
establishes the border as the Costa Rican bank on the section of the river
which is at issue in this dispute.
39. Besides the 1858 Treaty, mention should be made, among the treaty
instruments likely to have an effect on determining the right of navigation
on the river and the conditions for exercising it, of the agreement
concluded on 9 January 1956 between the two States (known as the Fournier-Sevilla
Agreement), whereby the Parties agreed to collaborate to the best of their
ability, in particular in order to facilitate and expedite traffic on the
San Juan in accordance with the 1858 Treaty and the Arbitral Award made by
President Cleveland in 1888 (for the text of the relevant provision of the
1956 Agreement, see paragraph 94 below).
40. Costa Rica has also invoked before the Court the joint ministerial
communiqués published on 8 September 1995 (known as the Cuadra-Castro Joint
Communiqué; see paragraph 25 above) and 30 July 1998 (known as the
Cuadra-Lizano Joint Communiqué; see paragraph 26 above). In the Court’s
view, however, these statements issued by the ministers responsible, on each
side, for matters of defence and public security, cannot be included in the
conventional basis of the right of free navigation granted to Costa Rica.
Rather, these are practical arrangements, in part aimed at implementing
previous treaty commitments, including in particular the obligation of
co-operation referred to in the Agreement of 9 January 1956 (see paragraph
23 above and paragraph 94 below). The legal effects of such arrangements are
more limited than the conventional acts themselves: modalities for
co-operation which they put in place are likely to be revised in order to
suit the Parties. Furthermore, the second of them was promptly declared null
and void by Nicaragua (see paragraph 26 above).
41. The above-mentioned treaty instruments must be understood in the light
of two important decisions which settled differences that emerged between
the Parties in determining their respective rights and obligations: the
Arbitral Award made by the President of the United States on 22 March 1888
(known as the Cleveland Award); and the decision rendered, on the
application of Costa Rica, by the Central American Court of Justice on 30
September 1916.
The first of these two decisions settled several questions concerning the
interpretation of the 1858 Treaty which divided the Parties in that case;
the second found that Nicaragua, by concluding an agreement with the United
States permitting the construction and maintenance of an inter-oceanic canal
through the San Juan river, had disregarded Costa Rica’s right under Article
VIII of that Treaty to be consulted before the conclusion of any agreement
of that nature.
Although neither of these decisions directly settles the questions that are
now before the Court, they contain certain indications which it will be
necessary to take into account for the purposes of the present case.
2. The extent of the right of free navigation attributed to Costa Rica
42. Having thus defined the legal basis of the right which Costa Rica argues
has been partly disregarded by Nicaragua, the Court must now determine its
precise extent, in other words, its field of application. The Parties
disagree considerably over the definition of this field of application,
i.e., as to the types of navigation which are covered by the “perpetual
right” granted to Costa Rica by the 1858 Treaty. Their difference
essentially concerns the interpretation of the words “libre navegación . . .
con objetos de comercio” in Article VI of the Treaty of Limits; this brings
with it a major disagreement as to the definition of the activities covered
by the right in question and of those which, not being thus covered, are
subject to Nicaragua’s sovereign power to authorize and regulate as it sees
fit any activity that takes place on its territory, of which the river forms
part.
(a) The meaning and scope of the expression “libre navegación . . . con
objetos de comercio”
43. In its Spanish version, which is the only authoritative one, Article VI
of the Treaty of Limits of 1858 reads as follows:
“La República de Nicaragua tendrá exclusivamente el dominio y sumo imperio
sobre las aguas del río de San Juan desde su salida del Lago, hasta su
desembocadura en el Atlántico; pero la República de Costa Rica tendrá en
dichas aguas los derechos perpetuos de libre navegación, desde la expresada
desembocadura hasta tres millas inglesas antes de llegar al Castillo Viejo,
con objetos de comercio, ya sea con Nicaragua ó al interior de Costa Rica
por los ríos de San Carlos ó Sarapiquí, ó cualquiera otra vía procedente de
la parte que en la ribera del San Juan se establece corresponder á esta
República. Las embarcaciones de uno ú otro país podrán indistintamente
atracar en las riberas del río, en la parte en que la navegación es común,
sin cobrarse ninguna clase de impuestos, á no ser que se establezcan de
acuerdo entre ambos Gobiernos.”
44. Leaving aside for the moment the phrase whose interpretation, and indeed
translation into English and French, divides the Parties, this article may
be translated thus:
“The Republic of Nicaragua shall have exclusive dominium and imperium over
the waters of the San Juan river from its origin in the lake to its mouth at
the Atlantic Ocean; the Republic of Costa Rica shall however have a
perpetual right of free navigation on the said waters between the mouth of
the river and a point located three English miles below Castillo Viejo, [con
objetos de comercio], whether with Nicaragua or with the interior of Costa
Rica by the rivers San Carlos or Sarapiquí or any other waterway starting
from the section of the bank of the San Juan established as belonging to
that Republic. The vessels of both countries may land indiscriminately on
either bank of the section of the river where navigation is common, without
paying any taxes, unless agreed by both Governments.” [Translation by the
Court.]
45. The Parties’ disagreement is greatest on the meaning of the words “con
objetos de comercio”. For Nicaragua, this expression must be translated into
French as “avec des marchandises de commerce” and into English as “with
articles of trade”; in other words, the “objetos” in question here are
objects in the concrete and material sense of the term. Consequently, the
freedom of navigation guaranteed to Costa Rica by Article VI relates only to
the transport of goods intended to be sold in a commercial exchange. For
Costa Rica, on the contrary, the expression means in French “à des fins de
commerce” and in English “for the purposes of commerce”; the “objetos” in
the original text are therefore said to be objects in the abstract sense of
ends and purposes. Consequently, according to Costa Rica, the freedom of
navigation given to it by the Treaty must be attributed the broadest
possible scope, and in any event encompasses not only the transport of goods
but also the transport of passengers, including tourists.
46. Before directly addressing the question which has been submitted to it,
the Court will make three preliminary observations of a more general nature.
It will then consider what is to be understood by “con objetos” and then by
“comercio” within the meaning of Article VI, since there is in fact a
twofold disagreement between the Parties.
(i) Preliminary observations
47. In the first place, it is for the Court to interpret the provisions of a
treaty in the present case. It will do so in terms of customary
international law on the subject, as reflected in Articles 31 and 32 of the
1969 Vienna Convention on the Law of Treaties, as the Court has stated on
several occasions (see Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Judgment, I.C.J. Reports 2007, pp. 109-110, para. 160; see also
Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment,
I.C.J. Reports 1994, pp. 21-22, para. 41.)
Consequently, neither the circumstance that Nicaragua is not a party to the
Vienna Convention on the Law of Treaties nor the fact that the treaty which
is to be interpreted here considerably pre-dates the drafting of the said
Convention has the effect of preventing the Court from referring to the
principles of interpretation set forth in Articles 31 and 32 of the Vienna
Convention.
48. In the second place, the Court is not convinced by Nicaragua’s argument
that Costa Rica’s right of free navigation should be interpreted narrowly
because it represents a limitation of the sovereignty over the river
conferred by the Treaty on Nicaragua, that being the most important
principle set forth by Article VI.
While it is certainly true that limitations of the sovereignty of a State
over its territory are not to be presumed, this does not mean that treaty
provisions establishing such limitations, such as those that are in issue in
the present case, should for this reason be interpreted a priori in a
restrictive way. A treaty provision which has the purpose of limiting the
sovereign powers of a State must be interpreted like any other provision of
a treaty, i.e. in accordance with the intentions of its authors as reflected
by the text of the treaty and the other relevant factors in terms of
interpretation.
A simple reading of Article VI shows that the Parties did not intend to
establish any hierarchy as between Nicaragua’s sovereignty over the river
and Costa Rica’s right of free navigation, characterized as “perpetual”,
with each of these affirmations counter-balancing the other. Nicaragua’s
sovereignty is affirmed only to the extent that it does not prejudice the
substance of Costa Rica’s right of free navigation in its domain, the
establishment of which is precisely the point at issue; the right of free
navigation, albeit “perpetual”, is granted only on condition that it does
not prejudice the key prerogatives of territorial sovereignty.
There are thus no grounds for supposing, a priori, that the words “libre
navegación . . . con objetos de comercio” should be given a specially
restrictive interpretation, any more than an extensive one.
49. Lastly, the Court observes that none of the points under examination in
this case was settled by the Cleveland Award of 1888 or by the decision of
the Central American Court of Justice of 1916. Each of the Parties has
sought to use these previous decisions as an argument to support its own
case. However, these attempts do not convince the Court one way or the
other.
The Cleveland Award confined itself to settling the questions of
interpretation which the Parties had expressly submitted to the arbitrator.
Those questions did not concern the meaning of the words “con objetos de
comercio”; it is therefore futile to seek in the Award the answer to a
question that was not put before the arbitrator. Consequently, while the
Award declares that Costa Rica does not have the right, under the Treaty, to
navigate on the San Juan with vessels of war, whereas it does have the right
to do so with vessels of its revenue service, there is nothing to
be inferred from this with regard to vessels belonging to the State and not
falling into either of those two categories. Likewise, while the arbitrator
used the words “for the purposes of commerce” and placed them in quotation
marks, it may be supposed that this was simply because
that was the English translation of the words “con objetos de comercio”
which both Parties had supplied to the arbitrator, who did not wish, in his
interpretation of the Treaty, to go beyond the
questions which had been put before him.
As for the decision of the Central American Court of Justice of 1916,
however important this might be, its operative part was based only on the
application of the express provisions of Article VIII of the Treaty, which
are not at issue in the present case.
(ii) The meaning of the phrase “con objetos”
50. It is now appropriate to consider the issue of the meaning of the phrase
“con objetos de” as used in Article VI of the 1858 Treaty, specifically
whether it means “for the purposes of” -- as
Costa Rica contends -- or “with articles of” -- as Nicaragua contends.
51. It should first be observed that the Spanish word “objetos” can,
depending on its context, have either of the two meanings put forward. Thus,
the context must be examined to ascertain the
meaning to be ascribed here. The two meanings -- one concrete and the other
abstract – are sufficiently different that examination of the context will
generally allow for a firm conclusion to
be reached.
52. Having conducted this examination, the Court is of the view that the
interpretation advocated by Nicaragua cannot be upheld.
The main reason for this is that ascribing the meaning “with goods” or “with
articles” to the phrase “con objetos” results in rendering meaningless the
entire sentence in which the phrase appears.
The part of Article VI which is relevant in this connection reads: “Costa
Rica tendrá . . . los derechos perpetuos de libre navegación . . ., con
objetos de comercio, ya sea con Nicaragua ó al
interior de Costa Rica.”
If Nicaragua’s interpretation were to be accepted, there would be no
intelligible relationship between the clause following the phrase “con
objetos de comercio”, i.e., “ya sea con Nicaragua ó al interior de Costa
Rica” (“whether with Nicaragua or with the interior of Costa Rica”), and the
preceding part of the sentence.
Either the words “with Nicaragua” would relate to “objetos de comercio”,
which would hardly make sense, since it would not be meaningful to speak of
“goods (or articles) of trade with Nicaragua”; or these words relate to
“navegación” and that would make even less sense, because
the expression “navegación . . . con Nicaragua” would simply be
incomprehensible.
By contrast, Costa Rica’s interpretation of the words “con objetos” allows
the entire sentence to be given coherent meaning. If the phrase means
“purposes of commerce”, then the immediately following clause, “ya sea con
Nicaragua . . .”, plainly relates to “comercio” (“for the purposes of
commerce with Nicaragua . . .”), and the sentence then conveys a perfectly
comprehensible idea.
Thus, in the present instance a literal analysis of the sentence containing
the words requiring interpretation leads to one of the proposed meanings
being preferred over the other.
53. The preceding finding is supported by three additional arguments which
all point to the same conclusion.
54. First, “objetos” is used in another article of the 1858 Treaty, Article
VIII, in which context it can only have the abstract meaning of “purposes”
or “subjects”: “Nicaragua se compromete á no concluir otro (contrato) sobre
los expresados objetos . . .” (“Nicaragua engages not to conclude any other
contract for those purposes . . .”).
It is reasonable to infer that the Parties tended to understand “objetos” in
its abstract sense, or, at least, that this meaning was familiar to them in
their treaty practice.
55. Second, a further indication may be deduced from the “Cañas-Martinez”
Peace Treaty signed by the Parties on 8 December 1857 but which was never
ratified and hence did not enter into force. On the question of navigation
on the San Juan, this instrument, replaced by the 1858 Treaty of Limits,
which repeats some of the earlier provisions, included the expression
“artículos de comercio”, which undoubtedly translates as “articles” or
“goods” of commerce. This would tend to show that when the Parties at the
time wished to refer to physical property giving rise to commercial
transactions, they used a term other than “objetos de comercio”, a term
having the advantage of being unambiguous. Further, it is reasonable to
believe that the Parties’ replacement of one word with another in two
successive instruments, the second of which was drafted shortly after the
first, indicates that the Parties wished in the second to refer to something
different from that in the first and that the two terms used must not be
taken to mean the same thing.
56. Finally, the Court also considers it significant that in 1887, when the
two Parties each submitted an English translation of the 1858 Treaty to
President Cleveland for use in the arbitration proceedings he was asked to
conduct, even though their translations were not identical on all points,
they did use the same phrase to render the original “con objetos de
comercio”: “for the purposes of commerce”.
By itself, this argument is undoubtedly not conclusive, because the only
authoritative version of the instrument is the Spanish one and at the time
the Parties might have made the same mistake in translation, which cannot be
treated as an implicit amendment of the 1858 Treaty. It is also no doubt
true that Nicaragua might have paid insufficient heed to the meaning of the
term “objetos de comercio”, which was not at issue in the questions
submitted to the arbitrator; this could be the explanation for a translation
done by it in haste. It nonetheless remains the case that this concurrence,
occurring relatively soon after the Treaty was concluded, is a significant
indication
that at the time both Parties understood “con objetos de comercio” to mean
“for the purposes of
commerce”.
This is the meaning accepted by the Court.
(iii) The meaning of the word “commerce”
57. The preceding finding does not entirely resolve the issue of
interpretation argued by the Parties. Now that it has been determined that
“con objetos de comercio” means “for the purposes
of commerce”, the meaning to be ascribed to the word “commerce” in the
context of Article VI remains to be determined, so that the exact extent of
the right of free navigation can be defined. On this point as well, the
Parties disagree.
58. In Nicaragua’s view, for purposes of the Treaty, “commerce” covers
solely the purchase and sale of merchandise, of physical goods, and excludes
all services, such as passenger transport. This interpretation is clearly
consistent with Nicaragua’s contention, just rejected, that “con objetos”
means “with merchandise”. But, Nicaragua argues, even if the phrase is
translated as “for the purposes of commerce”, the result is the same,
because in 1858 the word “commerce” necessarily meant trade in goods and did
not extend to services, the inclusion of services being a
very recent development. Nicaragua admits that passengers were already being
transported on the San Juan in 1858, and even that this was an especially
profitable activity, but it adds that this
activity did not fall within the scope of what was commonly called
“commerce” at that time. As
for the transport of tourists, there was no such activity at the time in the
area in question Nicaragua contends that it is important to give the words
used in the Treaty the meaning they had at the time the Treaty was
concluded, not their current meaning, which can be quite different, because
this is the only way to remain true to the intent of the drafters of the
Treaty; and determining that intent is the main task in the work of
interpretation.
59. Costa Rica argues that “commerce” as used in the Treaty takes in any
activity in pursuit of commercial purposes and includes, inter alia, the
transport of passengers, tourists among them, as well as of goods. The
Applicant adds that “commerce” is a broad concept which extends even
beyond for-profit activities; in this regard it cites the nineteenth-century
editions of the Dictionary of the Royal Spanish Academy, which gives the
word “comercio” the second meaning of “comunicación y trato de unas gentes ó
pueblos con otros”, or communication and dealings of
some persons or peoples with others. It follows, argues Costa Rica, that
“commerce” includes movement and contact between inhabitants of the villages
on the Costa Rican bank of the San Juan river, and the use of the river for
purposes of navigation by Costa Rican public officials providing the local
population with essential services, in areas such as health, education and
security.
60. The Court can subscribe to neither the particularly broad interpretation
advocated by Costa Rica nor the excessively narrow one put forward by
Nicaragua.
61. In respect of the first, the Court observes that, were it to be
accepted, the result would be to bring within the ambit of “navigation for
the purposes of commerce” all, or virtually all, forms of navigation on the
river. If that had been the intent of the parties to the Treaty, it would be
difficult to see why they went to the trouble of specifying that the right
of free navigation was guaranteed “for the purposes of commerce”, given that
this language would have had virtually noeffect. While Costa Rica did maintain in the hearings that the phrase “for
the purposes of commerce” in the context of Article VI did not result in
restricting the scope of the “right of free navigation” granted earlier in
the same sentence, but rather was intended to enlarge that right, the
Court cannot adopt this view: expressly stating the purpose for which a
right may be exercised implies in principle the exclusion of all other
purposes and, consequently, imposes the limitation
thus defined on the field of application of the right in question -- subject
to the possibility that the right may be exercisable beyond that scope on
separate legal bases.
Thus, the language found in Article VI means that the right of free
navigation granted to Costa Rica in that provision applies exclusively
within the ambit of navigation “for the purposes of commerce” and ceases to
apply beyond that ambit; the bounds of which it is now for the Court to
determine. This determination is without effect on the existence of any
right of navigation which
Costa Rica may enjoy pursuant to provisions other than Article VI.
62. In respect of the narrow interpretation advanced by Nicaragua, the Court
observes that it is supported mainly by two arguments: the first is based on
the Respondent’s interpretation of the phrase “con objetos”, which has just
been rejected; the second is based on the assertion that “commerce” should
be given the narrow meaning it had when the Treaty was entered into.
63. The Court does not agree with this second argument.
It is true that the terms used in a treaty must be interpreted in light of
what is determined to have been the parties’ common intention, which is, by
definition, contemporaneous with the treaty’s conclusion. That may lead a
court seised of a dispute, or the parties themselves, when they seek to
determine the meaning of a treaty for purposes of good-faith compliance with
it, to ascertain the meaning a term had when the treaty was drafted, since
doing so can shed light on the parties’ common intention. The Court has so
proceeded in certain cases requiring it to interpret a term whose meaning
had evolved since the conclusion of the treaty at issue, and in those cases
the Court adhered to the original meaning (to this effect, see, for example,
the Judgment of 27 August 1952 in the case concerning Rights of Nationals of
the United States of America in Morocco (France v. United States of America)
(I.C.J. Reports 1952, p. 176), on the question of the meaning of “dispute”
in the context of a treaty concluded in 1836, the Court having determined
the meaning of this term in Morocco when the treaty was concluded; the
Judgment of
13 December 1999 in the case concerning Kasikili/Sedudu Island
(Botswana/Namibia) (I.C.J. Reports 1999 (II), p. 1062, para. 25) in respect
of the meaning of “centre of the main channel” and “thalweg” when the
Anglo-German Agreement of 1890 was concluded).
64. This does not however signify that, where a term’s meaning is no longer
the same as it was at the date of conclusion, no account should ever be
taken of its meaning at the time when the treaty is to be interpreted for
purposes of applying it.
On the one hand, the subsequent practice of the parties, within the meaning
of Article 31 (3) (b) of the Vienna Convention, can result in a departure
from the original intent on the basis of a tacit agreement between the
parties. On the other hand, there are situations in which the parties’
intent upon conclusion of the treaty was, or may be presumed to have been,
to give the terms used -- or some of them -- a meaning or content capable of
evolving, not one fixed once and for all, so as to make allowance for, among
other things, developments in international law. In such instances it is
indeed in order to respect the parties’ common intention at the time the
treaty was concluded, not to depart from it, that account should be taken of
the meaning acquired by the terms in question upon each occasion on which
the treaty is to be applied.
65. A good illustration of this reasoning is found in the Judgment handed
down by the Court on 18 December 1978 in the case concerning Aegean Sea
Continental Shelf (Greece v. Turkey) (Judgment, I.C.J. Reports 1978, p. 3).
Called upon to interpret a State’s reservation to a treaty excluding from
the Court’s jurisdiction “disputes relating to territorial status” of that
State, where the meaning of “territorial status” was contested, the Court
stated:
“Once it is established that the expression ‘the territorial status of
Greece’ was used in Greece’s instrument of accession [to the General Act of
1928] as a generic term denoting any matters comprised within the concept of
territorial status under general international law, the presumption
necessarily arises that its meaning was intended to follow the evolution of
the law and to correspond with the meaning attached to the expression by the
law in force at any given time. This presumption, in the view of the Court,
is even more compelling when it is recalled that the 1928 Act was a
convention for the pacific settlement of disputes designed to be of the most
general kind and of continuing duration, for it hardly seems conceivable
that in such a convention terms like ‘domestic jurisdiction’ and
‘territorial status’ were intended to have a fixed content regardless of the
subsequent evolution of international law.” (I.C.J. Reports 1978, p. 32,
para. 77.)
66. Though adopted in connection with the interpretation of a reservation to
a treaty, the Court’s reasoning in that case is fully transposable for
purposes of interpreting the terms themselves of a treaty.
It is founded on the idea that, where the parties have used generic terms in
a treaty, the parties necessarily having been aware that the meaning of the
terms was likely to evolve over time, and where the treaty has been entered
into for a very long period or is “of continuing duration”, the parties must
be presumed, as a general rule, to have intended those terms to have an
evolving meaning.
67. This is so in the present case in respect of the term “comercio” as used
in Article VI of the 1858 Treaty. First, this is a generic term, referring
to a class of activity. Second, the 1858 Treaty was entered into for an
unlimited duration; from the outset it was intended to create a legal régime
characterized by its perpetuity.
68. This last observation is buttressed by the object itself of the Treaty,
which was to achieve a permanent settlement between the parties of their
territorial disputes. The territorial rules laid down in treaties of this
type are, by nature, particularly marked in their permanence, for, as the
Court has recently recalled:
“[I]t is a principle of international law that a territorial régime
established by treaty ‘achieves a permanence which the treaty itself does
not necessarily enjoy’ and the continued existence of that régime is not
dependent upon the continuing life of the treaty under which the régime is
agreed” (Territorial and Maritime Dispute (Nicaragua v. Colombia),
Preliminary Objections, I.C.J. Reports 2007, p. 861, para. 89).
69. This is true as well of the right of free navigation guaranteed to Costa
Rica by Article VI. This right, described as “perpetual”, is so closely
linked with the territorial settlement defined by
the Treaty - to such an extent that it can be considered an integral part of
it - that it is characterized by the same permanence as the territorial
régime stricto sensu itself.
70. The Court concludes from the foregoing that the terms by which the
extent of Costa Rica’s right of free navigation has been defined, including
in particular the term “comercio”, must be understood to have the meaning
they bear on each occasion on which the Treaty is to be applied, and not
necessarily their original meaning.
Thus, even assuming that the notion of “commerce” does not have the same
meaning today as it did in the mid-nineteenth century, it is the present
meaning which must be accepted for purposes of applying the Treaty.
71. Accordingly, the Court finds that the right of free navigation in
question applies to the transport of persons as well as the transport of
goods, as the activity of transporting persons can be commercial in nature
nowadays. This is the case if the carrier engages in the activity for
profit-making purposes. A decisive consideration in this respect is whether
a price (other than a token price) is paid to the carrier -- the boat
operator -- by the passengers or on their behalf. If so,
then the carrier’s activity is commercial in nature and the navigation in
question must be regarded as “for the purposes of commerce” within the
meaning of Article VI. The Court sees no persuasive reason to exclude the
transport of tourists from this category, subject to fulfilment of the same
condition.
On the other hand, any navigation not carried out either to transport goods
intended to form the subject of commercial transactions or to transport
passengers in exchange for money paid by them or on their behalf cannot be
regarded as falling within the “purposes of commerce” under Article VI. That
is the case, in particular, of navigation by vessels used in the performance
of governmental activities or to provide public services which are not
commercial in nature.
(b) The activities covered by the right of free navigation belonging to
Costa Rica
72. Based on the foregoing, the Court is now in a position to determine with
greater precision the types of activities which are covered by Costa Rica’s
right of free navigation, and those which are not.
For the sake of convenience, the Court, in addressing this issue, will
distinguish between private navigation -- that is to say navigation by
vessels belonging to private owners -- and that of “official (or public)
vessels” -- that is to say vessels which are the property of the Republic of
Costa Rica including all its public authorities --, although this
distinction, as will be explained below, is of only limited relevance.
(i) Private navigation
73. As has just been said, two types of private navigation are certainly
covered by the right of free navigation pursuant to Article VI of the 1858
Treaty: the navigation of vessels carrying goods intended for commercial
transactions; and that of vessels carrying passengers who pay a price other
than a token price (or for whom a price is paid) in exchange for the service
thus provided.
In the first instance, the commercial activity is conducted by persons who
are the owners of the goods intended for sale. These persons may themselves
be carried on the vessel: they can also entrust their goods for carriage to
the vessel’s operator for an agreed price or free of charge. This
last aspect is of no relevance: in any event, navigation which is carried
out in order to transport goods intended for sale, or goods that have just
been purchased, in the context of a commercial exchange must be regarded as
taking place “for the purposes of commerce”, whether or not the owner of the
goods is onboard the vessel, and whether or not the vessel’s operator has
been paid to provide carriage. It is understood that navigation “for the
purposes of commerce” also includes the return journey of persons who have
transported goods intended for sale.
In the second instance, however, the fact that the vessel’s owner receives
payment for his activity is critical. Indeed, if the carriage of passengers
is considered, it is not the passengers themselves who are exercising a
commercial activity (unless they are travelling in order to transport goods,
in which case the journey falls under the previous instance), it is the
carrier, provided that he does so to make a profit.
74. The question was raised as to whether the navigation of vessels
belonging to the inhabitants of the villages on the Costa Rican bank of the
river in order to meet the basic requirements of everyday life, such as
taking children to school or in order to give or receive medical treatment,
was protected by the right of free navigation when it is carried out free of
charge. The Parties discussed the issue: according to Nicaragua the answer
is no, since the Respondent considers that only the carriage of goods
benefits from the guarantee provided by Article VI of the Treaty; according
to Costa Rica the answer is yes, based on the particularly broad definition
of “commerce” adopted by the Applicant.
75. The Court has already indicated that it could not subscribe to a
definition of the word “commerce” as broad as the one put forward by Costa
Rica. It has also indicated (in paragraph 71 above) that the carriage of
passengers free of charge, or the movement of persons on their own vessels
for purposes other than the conduct of commercial transactions, could not
fall within the scope of “navigation for the purposes of commerce” within
the meaning of Article VI of the
1858 Treaty.
76. It does not necessarily follow that such activities are not at all
covered by freedom of navigation: other provisions of the 1858 Treaty may
have the effect of guaranteeing the right of the inhabitants of the Costa
Rican bank to navigate on the river, within certain limits, even when they
are not doing so within the context of commercial activities.
77. In this regard, the Court is of the opinion that there is reason to take
into account the provisions of the Treaty as a whole, especially those
fixing the boundary between the two States, in order to draw, if need be,
certain necessary implications. In other words, even if no provision
expressly guaranteeing a right of non-commercial navigation to the
inhabitants of the Costa Rican bank can be found in the Treaty, the question
must be asked whether such a right does not flow from other provisions with
a different purpose, but of which it may, to a certain extent, be the
necessary consequence.
78. As has been said, the two States decided, by the Treaty of Limits, to
fix their common boundary on the south bank of the San Juan river along the
whole stretch of the river running from its mouth to a point located three
English miles downstream from Castillo Viejo. This was decided in Article II
of the 1858 Treaty. At the time, there was already a population inhabiting
the Costa Rican side of the boundary thus defined, that is to say living on
the bank of the river or not far from it. In view of the great difficulty of
travelling inland, due to the limited inland communications network, that
population commonly used and still uses the river for travel for the purpose
of meeting the essential needs of everyday life which require expeditious
transportation, such as transport to and from school or for medical care.
79. The Court is of the opinion that it cannot have been the intention of
the authors of the 1858 Treaty to deprive the inhabitants of the Costa Rican
bank of the river, where that bank constitutes the boundary between the two
States, of the right to use the river to the extent necessary to meet their
essential requirements, even for activities of a non-commercial nature,
given the geography of the area. While choosing, in Article II of the
Treaty, to fix the boundary on the river bank, the parties must be presumed,
in view of the historical background to the conclusion of this Treaty and of
the Treaty’s object and purpose as defined by the Preamble and Article I, to
have intended to preserve for the Costa Ricans living on that bank a minimal
right of navigation for the purposes of continuing to live a normal life in
the villages along the river. The Court considers that while such a right
cannot be derived from the express language of Article VI, it can be
inferred from the provisions of the Treaty as a whole and, in particular,
the manner in which the boundary is fixed.
(ii) “Official vessels”
80. It is clear that the 1858 Treaty does not establish, in its Article VI,
any special régime for “official” (or “public”) vessels.
The only criterion provided for by Article VI is based not on the public or
private ownership of the vessel but on the purpose of navigation: either it
is undertaken for the “purposes of commerce” and benefits from the freedom
established; or it is undertaken for purposes other than
“commerce” and it does not. From this point of view the distinction between
public and private vessels is devoid of legal significance. In the same way
that a part of private navigation is not covered by the “perpetual right of
free navigation” (in the case of pleasure craft for example), conversely, it
is not inconceivable that “public vessels” might sail for the “purposes of
commerce”, if they met the conditions on which such a characterization
depends.
81. In reality, when debating the question of “official vessels” the Parties
particularly had in mind those used by the Costa Rican authorities for the
exercise of public order activities -- such as the police and customs -- or
for the provision of public services having no object of financial gain and
therefore no commercial character.
82. As has already been noted (paragraph 49 above), the Cleveland Award only
came to a decision regarding Costa Rican vessels of war and revenue service
vessels, by denying the former the right to navigate on the San Juan and
authorizing the navigation of the latter “as may be related and connected to
her enjoyment of the ‘purposes of commerce’ accorded to her in said article
[Article VI] or as may be necessary to the protection of said enjoyment”.
Nothing can thus be inferred from this regarding the navigation of other
Costa Rican official vessels.
83. In the light of the foregoing, the Court is of the opinion that, as a
general rule, the navigation of Costa Rican vessels for the purposes of
public order activities and public services with no object of financial
gain, in particular police vessels, lies outside the scope of Article VI of
the 1858 Treaty, with the exception of revenue service vessels, the question
of which was settled by the 1888 arbitration. Further, it is not convinced
that a right for Costa Rica to sail such vessels can be inferred from
Article IV of the Treaty, according to which “Costa Rica shall also be
obliged, for the part that belongs to her of the banks of the San Juan River
. . . to contribute to the security thereof in the same manner as the two
Republics shall contribute to its defence in case of
aggression from abroad”. This provision, contrary to what Costa Rica
contends, does not accord it
any right of navigation in ordinary circumstances. It places an obligation
upon it to “safeguard” the river from within its own territory.
Moreover, the Court considers that, in any event, Costa Rica has not proved
its assertion that river transport is the only means to supply its police
posts located along the river bank or to carry out the relief of the
personnel stationed in them. Indeed, the materials in the case file show
that the posts in question are accessible, for example, by using the Costa
Rican rivers communicating with the San Juan, in proximity of which they are
located.
Lastly, for the reasons set out above (paragraph 40), Costa Rica cannot
invoke the “Cuadra-Lizano” Joint Communiqué of 30 July 1998 in order to
claim a right to navigate with official vessels which are armed or
transporting arms.
84. Nonetheless, the Court is of the opinion that the reasons given above
(in paragraphs 78 and 79) with regard to private vessels which navigate the
river in order to meet the essential requirements of the population living
on the river bank, where expeditious transportation is a condition for
meeting those requirements, are also valid for certain Costa Rican official
vessels which in specific situations are used solely for the purpose of
providing that population with what it needs in order to meet the
necessities of daily life, as defined in paragraph 78 above.
Consequently, this particular aspect of navigation by “official vessels” is
covered by the right of navigation defined in paragraph 79 above: this right
is not guaranteed by Article VI of the Treaty but is inferred from the
provisions of the Treaty as a whole, in particular from the fixing of the
boundary along the river bank.
III. NICARAGUA’S POWER OF REGULATION OF NAVIGATION
85. In this part of the Judgment the Court addresses the power of Nicaragua
to regulate the navigation of that part of the San Juan River in which Costa
Rica has the right of navigation as determined in Part II of the Judgment.
In respect of matters lying outside the scope of Costa Rica’s right of free
navigation, and in respect of other parts of the river, which are not
subject to the régime of the 1858 Treaty, Nicaragua, as sovereign, has
complete power of regulation.
1. General observations
86. In their written pleadings, the Parties disagreed about the extent or
even the very existence of the power of Nicaragua to regulate the use of the
river so far as Costa Rica was concerned. In the course of the oral
proceedings that difference of positions largely disappeared. However, the
Parties continue to disagree on the extent of the regulatory power of
Nicaragua and on certain measures which Nicaragua has adopted and continues
to apply.
In the first part of the oral proceedings, Nicaragua states that whatever
the precise nature and extent of Costa Rica’s rights within the provisions
of the Treaty of Limits and the Cleveland Award, Nicaragua
“must have the exclusive competence to exercise the following regulatory
powers: (a) the protection and maintenance of the right of navigation, that
is to say, the power to maintain public order and standards of safety in
respect of navigation; (b) the protection of the border, including resort to
immigration procedures in respect of foreign nationals navigating in
Nicaragua’s territorial waters; (c) the exercise of normal police powers;
(d) the protection of the environment and natural resources; and (e) the
maintenance of the treaty provisions prescribing the conditions of
navigation in accordance with the Treaty”.
Costa Rica, while accepting that Nicaragua does have a power of regulation,
asserts that Nicaragua’s sovereignty over the San Juan must be seen as a
part -- an important part -- of the fluvial régime established in 1858 and
that the regulations enacted by Nicaragua must not infringe Costa Rica’s
perpetual right of free navigation. It states that the regulations must be
lawful, public, reasonable, non-arbitrary and non-discriminatory and adopted
to fulfil a legitimate public purpose. Nicaragua accepts Costa Rica’s
statement of principle.
The Parties disagree whether Nicaragua is obliged to notify Costa Rica about
the regulations it has made or to consult Costa Rica in advance about
proposed regulations. The Court rules on these differences in the course of
this part of the Judgment.
(a) Characteristics
87. For essentially the reasons given by the Parties, the Court concludes
that Nicaragua has the power to regulate the exercise by Costa Rica of its
right to freedom of navigation under the 1858 Treaty. That power is not
unlimited, being tempered by the rights and obligations of the Parties. A
regulation in the present case is to have the following characteristics:
(1) it must only subject the activity to certain rules without rendering
impossible or substantially impeding the exercise of the right of free
navigation;
(2) it must be consistent with the terms of the Treaty, such as the
prohibition on the unilateral imposition of certain taxes in Article VI;
(3) it must have a legitimate purpose, such as safety of navigation, crime
prevention and public safety and border control;
(4) it must not be discriminatory and in matters such as timetabling must
apply to Nicaraguan vessels if it applies to Costa Rican ones;
(5) it must not be unreasonable, which means that its negative impact on the
exercise of the right in question must not be manifestly excessive when
measured against the protection afforded to the purpose invoked.
88. Costa Rica has challenged the role of environmental protection as a
reason for Nicaragua’s regulations, indicating that it is a pretext to
impose other requirements. But in the course of the oral proceedings Costa
Rica itself emphasized environmental matters. For its part, Nicaragua points
to the evidence it presented showing that the San Juan river and the
Nicaraguan shore adjacent to it are extremely important and gravely
threatened natural reserves. It also refers to related international
obligations arising under the 1971 Ramsar Convention on Wetlands, the 1973
Convention on International Trade in Endangered Species of Wild Fauna and
Flora and the
1992 Convention on Biodiversity Conservation and Protection of Priority Wild
Areas in Central America.
89. The Court considers that, over the course of the century and a half
since the 1858 Treaty was concluded, the interests which are to be protected
through regulation in the public interest may well have changed in ways that
could never have been anticipated by the Parties at the time: protecting the
environment is a notable example. As will appear from the rulings made later
in this Judgment (see paragraphs 104, 109, 118, 127 and 141), Nicaragua, in
adopting certain measures which have been challenged, in the Court’s
opinion, is pursuing the legitimate purpose of protecting the environment.
90. The Parties mentioned two other matters relating to regulation making by
Nicaragua. Costa Rica suggested that Nicaragua had not adopted the measures
and regulations being challenged in accordance with Nicaraguan law. It did
not, however, put before the Court the relevant Nicaraguan constitutional
and other requirements, and it did not begin to indicate how such
non-compliance with Nicaraguan law, assuming it to have occurred, could have
significance in international law. Nicaragua contended that it had the power
to regulate to “maintain the discipline of the Treaty”. It did not however
indicate how that would extend its regulatory powers in the present context.
Because the Parties did not develop these two contentions, the Court does
not take them any further.
(b) Notification
91. The Court now turns to the question whether Nicaragua has a legal
obligation to notify Costa Rica of the measures it adopts to regulate
navigation on the river, or to give notice and consult with Costa Rica prior
to the adoption by Nicaragua of such measures. In answer to a question from
a Member of the Court, Nicaragua said that, as the exclusive holder of
sovereign authority and title over the river, under the Treaty or otherwise,
it had no obligation to consult with or inform Costa Rica before making such
regulations. Nicaragua states that nevertheless, in the interests of good
neighbourliness and as a courtesy, it had regularly consulted with, informed
and
engaged in dialogue with Costa Rica about the measures. It then documented
that claim by reference to the disputed measures. Costa Rica’s answer to the
question reviews actions taken by
Nicaragua and concludes that notice was not given. Costa Rica, in its
comments on Nicaragua’s answer, rejects Nicaragua’s position that it was
under no legal obligation to consult, referring to what it says is the plain
meaning of the text of Article VI of the Treaty.
92. However, the part of the text of Article VI on which Costa Rica depends
concerns only the imposition of certain charges. Because that provision does
not extend to the full range of measures taken to regulate navigation on the
river, it cannot be read as imposing a general obligation of notification
and consultation, and the Court need not consider that argument further. The
remainder of Costa Rica’s comments and the whole of Nicaragua’s addressed
the contacts which each had had with the other relating to the various
measures.
93. The Treaty imposes no express general obligation on either of the
Parties to notify the other about measures it is taking relating to
navigation on the river. It contains a requirement of agreement in Article
VI and a requirement of consultation in Article VIII which imply prior
contact between the Parties. Under Article VI the two Parties are required
to agree if they wish to impose any taxes in the situation contemplated by
that provision. Under Article VIII, if the Government of Nicaragua is
proposing to enter into an arrangement for canalization or transit on the
San Juan, it must first consult with the Government of Costa Rica about the
disadvantages the project might occasion between the two Parties.
94. Despite the lack of any specific provision in the Treaty relating to
notification, the Court sees three factors as together imposing an
obligation of notification of regulations in the circumstances of this case.
The first is to be found in the 1956 Agreement under which the Parties
agreed as follows:
“The two Parties, acting in the spirit which should move the members of the
Central American family of nations, shall collaborate to the best of their
ability in order to carry out those undertakings and activities which
require a common effort by both States and are of mutual benefit and, in
particular, in order to facilitate and expedite traffic on the Pan American
Highway and on the San Juan River within the terms of the Treaty of 15 April
1858 and its interpretation given by arbitration on 22 March 1888, and also
in order to facilitate those transport services which may be provided to the
territory of one Party by enterprises which are nationals of the other.”
It is difficult to see how the obligation, set out under the terms of the
1956 Agreement, to collaborate to facilitate traffic on the San Juan and to
facilitate transport services being provided in the territory of one country
by the nationals of the other could be met without Nicaragua notifying Costa
Rica of relevant regulations which it adopts.
95. The second factor indicating that Nicaragua is obliged to notify the
adoption of the regulations lies in its very subject-matter: navigation on a
river in which two States have rights, the one as sovereign, the other to
freedom of navigation. Such a requirement arises from the practical
necessities of navigation on such a waterway. If the various purposes of
navigation are to be achieved, it must be subject to some discipline, a
discipline which depends on proper notification of the relevant regulations.
96. The third factor lies in the very nature of regulation. If the
regulation is to subject the activity in question to rules, those
undertaking that activity must be informed of those rules. Notification will
assist in the better application of the regulation and the more effective
pursuit of its purposes. Notification will also enable those subject to the
regulation to bring facts within their particular knowledge to the attention
of the appropriate authority and to suggest other ways of pursuing and
achieving the relevant purpose.
97. The Court concludes that Nicaragua is under an obligation to notify
Costa Rica of the regulations which it makes regarding the navigational
régime on the San Juan river. That obligation does not however extend to
notice or consultation prior to the adoption by Nicaragua of such
regulations.
(c) The factual context
98. The Court considers it necessary to provide a factual context for the
assessment which follows of the particular Nicaraguan regulations and
actions challenged by Costa Rica. For this purpose, the Court recalls
information presented to it about the population on the Costa Rican bank,
the tourists using the river, and Costa Rican access to the area. According
to Costa Rica, about 450 people, about half of them Nicaraguans, live along
the approximately 140 km of the Costa Rican bank. Nicaragua does not
challenge these figures.
99. According to Nicaragua, with an exception in 1982 when war time
emergency measures applied, Costa Rican tourist navigation has not been
prevented. Its figures show an increase from
711 in 1998 to 2,590 in 2004. Costa Rica does not challenge those figures
nor, especially, their increase. Indeed, it drew on one of the Nicaraguan
sources to show the increase in tourist numbers. Rather, its arguments about
the impeding of tourism are general, depending in large part on the drawing
of adverse inferences from the Nicaraguan requirements relating to the
stopping and inspecting of vessels, the registering of passengers, the issue
of visas and tourist cards, and the charging of fees. The evidence before
the Court indicates that much of that travel by tourists begins or ends
within Costa Rica, in the Sarapiquí and Colorado rivers and includes only
the approximately 25 km of the San Juan river between the points where those
two rivers join it. The vessels in which the tourists travel, according to
the limited record before the Court, appear to provide for about ten
passengers.
100. The Parties have provided the Court with information about measures
Nicaragua has undertaken, and to this day continues to undertake, in
regulating the use of the river. Costa Rica contends that the information
shows that Nicaragua is acting unlawfully, not for legitimate purposes but
for reasons of harassment, and unreasonably and in a discriminatory way.
Nicaragua submits the opposite.
101. The Court notes that Costa Rica, in support of its claim of unlawful
action, advances points of fact about unreasonableness by referring to the
allegedly disproportionate impact of the regulations. The Court recalls that
in terms of well established general principle it is for Costa Rica to
establish those points (cf. Maritime Delimitation in the Black Sea (Romania
v. Ukraine), Judgment of 3 February 2009, para. 68, and cases cited there).
Further, a court examining the reasonableness of a regulation must recognize
that the regulator, in this case the State with sovereignty over the river,
has the primary responsibility for assessing the need for regulation and for
choosing, on the basis of its knowledge of the situation, the measure that
it deems most appropriate to meet that need. It will not be enough in a
challenge to a regulation simply to assert
in a general way that it is unreasonable. Concrete and specific facts will
be required to persuade a
court to come to that conclusion.
2. The legality of the specific Nicaraguan measures challenged by Costa Rica
102. The Court now considers the measures adopted by Nicaragua which are
challenged by Costa Rica.
(a) Requirement to stop and identification
103. Costa Rica, in its final submissions, requests the Court to declare
that Nicaragua has the obligation not to require Costa Rican vessels to stop
at any Nicaraguan post along the river, and not to require their passengers
to carry passports. Costa Rica contends that the requirements of stopping
and registering have the practical effect of rendering near impossible the
exercise of Costa Rica’s treaty rights of free navigation and that they do
not have much of a preventive effect. They cannot be regarded as reasonable
or lawful. Nicaragua says that, since before the 1960s, it has required boat
operators, including Nicaraguans, travelling on the river to stop and
identify themselves, their passengers and their cargoes. The requirement, it
says, is a fundamental element of its law enforcement efforts in the area.
It considers it quite telling that Costa Rica has, since at least the 1960s,
found it necessary to implement the same requirement on its own rivers.
Nicaragua explains that its army posts are spread widely, leaving vast
stretches of the river far removed from law enforcement officials, and that
it is only by keeping track of vessels as they enter and leave the river
that it can effectively monitor them to ensure that they do not engage in
unlawful activities. Nicaragua also cites environmental protection and
navigational safety as reasons for these requirements.
104. So far as the lawfulness of the requirement is concerned, the Court is
of the opinion that Nicaragua, as sovereign, has the right to know the
identity of those entering its territory and also to know that they have
left. The power to require the production of a passport or identity document
of some kind is a legitimate part of the exercise of such a power. Nicaragua
also has related responsibilities in respect of law enforcement and
environmental protection. To that extent, the Nicaraguan requirement that
vessels stop on entering the river and leaving it and that they be subject
to search is lawful. The Court cannot, however, see any legal justification
for a general requirement that vessels continuing along the San Juan river,
for example, from the San Carlos river to the Colorado river, stop at any
intermediate point, in that case at Sarapiquí.
105. In its Memorial, Costa Rica also called attention to the right which
the vessels of Costa Rica and Nicaragua have under Article VI to land on
either side of the river, which it cited in support of the proposition that
“[n]owhere is it stipulated that Costa Rican vessels have an obligation to
land on the Nicaraguan bank and report to the Nicaraguan authorities”. Costa
Rica provides no elaboration of this argument. That is hardly surprising.
The right of individual boatmen to tie up on the opposite bank for their own
reasons and the power and responsibility of the State which is sovereign
over the river to regulate it, in the public interest, are two distinct
matters. They may operate in complete harmony.
106. Costa Rica submits that more frequent Nicaraguan patrolling of the
river would be reasonable, lawful and sufficiently effective. However, it
provides no evidence to demonstrate that such patrolling would achieve the
purposes for which the requirement in question was introduced, nor any
specific evidence to show that this requirement actually interferes with
tourist traffic, in particular through the delays allegedly resulting from
its application. The Court recalls that it has been established that the
number of tourists on the river has increased over the years the requirement
has been in force. In the Court’s opinion, Costa Rica has failed to show
that the regulation is unreasonable.
107. Accordingly, the Court concludes that Costa Rica’s challenge to the
requirement that vessels stop and their crew members and passengers register
and carry identity documents fails.
(b) Departure clearance certificates
108. Costa Rica challenges the departure clearance certificate which
Nicaragua requires be issued to vessels navigating on the river. As will
appear, it also challenges the associated fee or charge. According to Costa
Rica, before 1979, the practice was that Costa Rican boat operators would
obtain a departure clearance certificate from their own authorities (in
Barra del Colorado or Puerto Viejo de Sarapiquí) and would show it on
request to the Nicaraguan authorities when entering the San Juan. In the
early 1980s the Nicaraguan authorities introduced their own certificates and
a related fee. The matter is now the subject of the 2001 Action Plan for
Issuance of Departure Clearance Certificates in the San Juan River of the
Nicaraguan Army which provides as follows:
“1. Vessels navigating in between the Military Control Posts over the San
Juan River shall be issued a courtesy departure clearance certificate.
2. The vessels and Nicaraguans whose domicile is close to the bank of the
San Juan River and Costa Ricans whose domicile is located in the adjacent
proximities shall be issued a courtesy departure clearance certificate,
which shall be valid for one month and must be renewed one day before the
expiration date. These shall report to the Military Control Posts located
along the San Juan River.
3. The Port Captaincy in San Juan del Norte is hereby authorized to issue
international departure clearance certificates to tourist vessels at a cost
of US10.00 (ten dollars). These certificates may be issued by the Military
Control Posts in Boca de Sarapiquí and El Delta only where vessels attempt
to evade the Port Captaincy.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
5. Costa Rican vessels domiciled inland in Costa Rican territory that use
the San Juan River as a transit route shall be issued an international
departure clearance certificate in San Juan del Norte, subject to a symbolic
fee equivalent to US5.00 (five dollars).”
Nicaragua says that on entry into the river, vessels are inspected to ensure
that they are seaworthy, are free of fuel leaks that might pollute the river
and are not carrying illegal cargo. In support of the regulation Nicaragua
also cites the minutes of a 1997 meeting of the Binational Nicaragua-Costa
Rica Commission:
“With respect to the movement of vessels, it was considered necessary that
they navigate only if duly registered by the posts that issue corresponding
navigation certificates; in this case, the posts at San Juan del Norte, San
Carlos and Sarapiquí.”
Nicaragua considers that in this minute Costa Rica accepted that there was
good reason for the registration and clearance requirements imposed by
Nicaragua. For Costa Rica, the minute was concerned with drug trafficking
and the passage meant only that the certificates should be obtained by
vessels from their respective countries.
109. The Court considers that the purposes invoked by Nicaragua, i.e.,
navigational safety, environmental protection and criminal law enforcement,
are legitimate ones. Further, the requirement for departure clearance
certificates does not appear to have imposed any significant impediment on
the exercise of Costa Rica’s freedom of navigation.
The question may also be asked whether in terms of the earlier practice the
inspection and certification should be undertaken by the State of
nationality of the boat operators, on the analogy of maritime navigation.
There is however no suggestion from Costa Rica that it would be in a
position to take up this responsibility. Nor does it point to a single case
where navigation has been impeded by an arbitrary refusal of a certificate.
110. Accordingly Costa Rica’s claim that Costa Rican vessels need not obtain
departure clearance certificates cannot be upheld. The Court considers the
claim in respect of charges later (paragraphs 120 to 124).
(c) Visas and tourist cards
111. In its final submissions, Costa Rica requests the Court to declare that
Nicaragua has the obligation not to require persons exercising the right of
free navigation to obtain Nicaraguan visas.
Its claim also extends to tourist cards. Nicaragua states that, since at
least 1979, all non-nationals
have been required to obtain tourist cards when they enter Nicaragua, a
requirement which includes entry into Nicaragua via the San Juan river. It
says that it makes an exception for residents of Costa Rica riparian
communities and for Costa Rican merchants who regularly use the river to
transport goods from one community to another. It notes that those
exemptions also apply to visas. Further, many of the tourists have the
benefit of a visa waiver made by Nicaragua. Costa Rica points to some
evidence which puts in question the operation of the exemptions for
riparians.
112. Costa Rica contends that the visa and tourist card requirements are a
breach of its right of free navigation. They impose unlawful limits on the
freedom. The exercise of the power would mean that the right to freedom of
navigation becomes a privilege to be granted or denied at the discretion of
Nicaragua. For Nicaragua, the power to issue such documents is a simple
consequence of its sovereignty over the river. Just as it can require that
such permissions be sought by non-nationals as they enter its territory at
Managua Airport, so too can it impose that requirement when non-nationals
seek to enter the river over which it is sovereign.
113. The Court observes at the outset that a distinction must be drawn
between requiring visas and requiring tourist cards. The power of a State to
issue or refuse visas is a practical expression of the prerogative which
each State has to control entry by non-nationals into its territory.
114. The requirement that passengers on Costa Rican vessels exercising
freedom of navigation, other than riparians and certain Costa Rican
merchants, have visas issued to them raises the question of who is entitled
to and who may benefit from the right of freedom of navigation for
commercial purposes stated in Article VI of the 1858 Treaty. Under Article
VI of the Treaty the titleholder of the right of free navigation is Costa
Rica. Owners and operators of Costa Rican vessels benefit from that right
when navigating on the San Juan river for commercial purposes. Passengers on
vessels exercising Costa Rica’s right of free navigation also benefit from
that right, even if such passengers are not Costa Rican nationals.
115. The Court recalls that the power of a State to issue or refuse a visa
entails discretion. However in the present case Nicaragua may not impose a
visa requirement on those persons who, in line with what was stated in the
preceding paragraph, may benefit from Costa Rica’s right of free navigation.
If that benefit is denied, the freedom of navigation would be hindered. In
these circumstances, an imposition of a visa requirement is a breach of the
Treaty right.
116. The Court observes that in fact the number of tourists travelling on
the river in Costa Rican vessels has increased in the period these
requirements have been in force (see paragraph 99 above). Further, Costa
Rica has provided no evidence of arbitrary refusals of visas to tourists and
Nicaragua points out that it does not require nationals from countries which
are the source of most of the tourists visiting the San Juan to obtain
visas. Furthermore, it makes exceptions for residents of Costa Rican
riparian communities and Costa Rican merchants who regularly use the river.
None of this, however, affects the legal situation just stated.
117. The Court accordingly concludes that Nicaragua may not require persons
travelling on Costa Rican vessels which are exercising their freedom of
navigation on the river to obtain visas. It would of course be another
matter were they wishing to enter the land territory of Nicaragua from the
river or to travel up the river beyond its shared part towards Lake
Nicaragua.
118. The Court adds one point to that conclusion. It has already recognized
that Nicaragua has the right to know the identity of those wishing to enter
the river, for reasons, among others, of law enforcement and environmental
protection (paragraph 104 above). One measure which it may properly take to
protect such interests is to refuse entry to a particular person for good
reasons relating to that purpose. It can do that at the point that the
person identifies him or herself (see paragraphs 103 to 107 above). If such
an action was justified in terms of the relevant purpose, no breach of the
freedom would be involved. A similar analysis may well be available in terms
of an emergency derogation of the right to navigate.
119. With regard to the requirement by Nicaragua that tourist cards be
obtained, this does not appear to be intended to facilitate its control over
entry into the San Juan river. In the course of the proceedings Nicaragua
did no more than give some factual information about the operation of the
tourist cards and the exemptions already mentioned. It referred to no
legitimate purpose as justification for imposing this requirement. The
requirement that passengers wishing to travel on Costa Rican vessels which
are exercising Costa Rica’s freedom of navigation on the river must first
purchase tourist cards is inconsistent with that right to freedom of
navigation. The Court accordingly concludes that Nicaragua may not require
persons travelling on Costa Rican vessels which are exercising Costa Rica’s
freedom of navigation on the river to purchase a tourist card.
(d) Charges
120. Costa Rica, in its final submissions, requests the Court to declare
that Nicaragua has an obligation not to impose any charges or fees on Costa
Rican vessels and their passengers for navigating on the river. The claims
relate to payments required in respect of departure clearance certificates
for vessels and visas and tourist cards for passengers. According to
Nicaragua, they are not payments for navigating on the river, but for the
service involved in the issue of the various documents. If Nicaragua has no
legal power to require the issuing of such documents, as the Court has
already held in respect of visas, then no charge or fee may of course be
required. The Court has dealt with the question of the payment for tourist
cards in the previous paragraph. The matter does, however, remain in respect
of the issue of departure clearance certificates. Costa Rica contends that
the requirement is prohibited by the Treaty. In 1982 it protested against
the imposition of a charge for the issuing of a departure clearance
certificate as a tax that is excluded by Article VI of the Treaty. In a
later exchange, in 2001, Nicaragua contended that the sum being charged was
“not for navigating the San Juan River, nor does it constitute any type of
tax, but is, rather, the amount charged for providing the departure
clearance certificate service that both Nicaraguan and foreign vessels in
any Nicaraguan port, including those located in the said river, are charged
when travelling to another State”.
Nicaragua recalls that, by decision of the President of Nicaragua and “to
strengthen the ties” between the two countries and Governments, Costa Rican
vessels, other than tourist vessels and
those using the port of San Juan del Norte, were to be issued with the
certificate without payment. In response, Costa Rica again referred to
Article VI, quoting the last part of that provision, and contended that in
effect no service was rendered corresponding to the departure clearance
certificate. Nicaragua, says Costa Rica, ignores the plain text of Article
VI of the Treaty of Limits which provides that neither country may impose
charges on the other, except when there is agreement by both Governments.
121. The final sentence of Article VI in its original Spanish text provides
as follows:
“Las embarcaciones de uno ú otro pais podrán indistintamente atracar en las
riberas del rio en la parte en que la navegación es comun, sin cobrarse
ninguna clase de impuestos, á no ser que se establezcan de acuerdo entre
ambos Gobiernos.” (For the full text of Article VI in the Spanish original,
see paragraph 43 above.)
The English translations of that sentence provided to President Cleveland by
the Parties were respectively as follows:
“The vessels of both countries shall have the power to land indiscriminately
on either side of the river, at the portion thereof where the navigation is
common; and no charges of any kind, or duties, shall be collected unless
when levied by mutual consent of both Governments.” (Costa Rica)
And
“The vessels of both countries may indiscriminately approach the shores
(atracar) of the river where the navigation is common to both, without the
collection of any class of impost unless so established by the two
Governments.” (Nicaragua)
122. In the Court’s view, the final sentence of Article VI has two elements.
It first confers a right on the vessels of each Party to land on the bank of
the other. Second, that sentence provides that the exercise of that
particular right is not to be the subject of an impost or tax. Just as the
exercise of the right of navigation on the river is to be free and not the
subject of any payment, so is stopping on the other bank. The Court does not
read the provision as extending beyond that particular situation and as
prohibiting charges for services lawfully and properly required by Nicaragua
and rendered to vessels navigating on the river.
123. The Court now turns to the issue raised by Costa Rica in its
correspondence with Nicaragua in 2001 (see paragraph 120 above): what is the
service being rendered for the certificate and the charge. As the Court
understands the situation, Costa Rica does not challenge the right of
Nicaragua to inspect vessels on the river for safety, environmental and law
enforcement reasons; as noted, it accepted it in respect of drug trafficking
in 1997. In the Court’s opinion, that right would in any event be an aspect
of Nicaraguan sovereignty over the river. But those actions of policing by
the sovereign do not include the provision of any service to boat operators.
In respect
of Costa Rican vessels exercising freedom of navigation on the river, the
payment must be seen as unlawful.
124. Accordingly, Costa Rica’s claim in respect of the charge for the
departure clearance certificate for those vessels must be upheld.
(e) Timetabling
125. In its final submissions, Costa Rica requests the Court to declare that
Nicaragua has the obligation not to impose impediments to the exercise of
the right of free navigation, inter alia, by
timetables for navigation. Nicaragua, according to Costa Rica, in 1999
restricted navigation on the San Juan river from 6.00 a.m. to 5.30 p.m.
Costa Rica in 2001 protested against “this unilateral restriction . . .,
given that it is not stipulated by any agreement between the two States”. In
its response, Nicaragua noted “its right and obligation, as the sovereign
State, to adopt the regulations necessary to guarantee the safety of the
people and vessels travelling along the river and avoid all manner of
criminal activities”. Costa Rica replied that Nicaragua could not establish
these limitations unilaterally since none of the instruments in force
between the two countries established that it may do so. In the course of
2001 the Action Plan of the Army of Nicaragua for issuance of Departure
Clearance Certificates on the River set out this requirement: “As a measure
for protecting human life and safe navigation, navigation over the San Juan
River remains suspended between 5.00 p.m. and 5.00 a.m.” Costa Rica contends
that the prohibition is a violation of a right which is “perpetual” and
“free”.
126. The Court recalls that the exercise of a power to regulate may
legitimately include placing limits on the activity in question. The limited
evidence before the Court does not demonstrate any extensive use of the
river for night time navigation: tourist vessels, understandably, use the
river during daylight hours; emergencies are acknowledged by Nicaragua to be
an exception; and, according to the Nicaraguan Military Commander in the
area between 1992 and 1995, “by long standing custom night time navigation
of the river has not been practised, except in emergency situations”. He
explained that the prohibition “applies to everyone, Nicaraguans included.
The river is treacherous to navigate at night, since there are no lights,
and fallen logs and sandbars, invisible in the dark, are prevalent, as are
crocodiles.” The limited interference with Costa Rica’s freedom to navigate
does not, in the Court’s opinion, amount to an unlawful impediment to that
freedom, particularly when the purposes of the regulation are considered.
127. Costa Rica’s challenge to the regulation also applies to one of those
purposes, environmental protection. As already indicated, the Court
considers that that is a legitimate purpose and accordingly rejects this
ground for attacking the night time prohibition.
128. Finally, Costa Rica submits that the regulation is unreasonable. The
purposes could have been better achieved by other means, it says, in
particular by requiring boats travelling at night to have lights and to have
dangerous places marked by lights. Costa Rica does not address the
practicality of such measures, including their cost, nor their
effectiveness. It proceeds only by way of assertion. It has not, in the
Court’s opinion, come near to establishing that the regulation is
unreasonable.
129. Accordingly Costa Rica’s claim in respect of timetabling cannot be
upheld.
(f) Flags
130. In its final submissions, Costa Rica requests the Court to declare that
Nicaragua has an obligation not to impose an impediment on the exercise of
the right of free navigation, inter alia, by conditions relating to flags.
Costa Rica claims that the right of its vessels to fly its own flag and not
to fly the Nicaraguan flag is a corollary right to the right of free
navigation under the Treaty. For Nicaragua, the requirement that vessels fly
its flag when navigating in its waters, including in the San Juan, is an
attribute of Nicaragua’s sovereignty, and is a matter of international
custom and practice. It is a reasonable and non-burdensome requirement.
131. The Parties also disagree on the facts. While Costa Rica suggests that
Nicaragua requires all of its vessels to fly the Nicaraguan flag, it has, in
the Court’s view, provided no persuasive evidence of this. Further, the
relevant Nicaraguan document, the Action Plan of the Army of Nicaragua for
Issuance of Departure Clearance Certificates in the San Juan River, while
requiring its flag to be flown, adds an important qualification: “If vessels
have no flag pole, they shall fly the flag on the stern turret if they have
one.” Nicaragua’s counsel said that that limit meant the regulation was
inapplicable to the vast majority of Costa Rican boats that use the river
which are almost all small wooden “pangas” or simple boats with a small
outboard motor and no means to display flags. Costa Rica also contends that
Nicaragua does not allow its vessels to fly the Costa Rican flag. Nicaragua
provides evidence from a military officer who had responsibility in the San
Juan area from 2002 to 2005 that Costa Rican vessels could fly the Costa
Rican flag so long as they flew the Nicaraguan flag as well; in practice,
that meant only that the Costa Rican
tourist boats kept a Nicaraguan flag on board and hoisted it during the
times they were on the San Juan. Finally, as counsel for Costa Rica accepts,
there is no evidence of any Costa Rican vessel being prevented from
navigating on the river for breach of this requirement.
132. The Court considers that Nicaragua, which has sovereignty over the San
Juan river, may, in the exercise of its sovereign powers, require Costa
Rican vessels fitted with masts or turrets navigating on the river to fly
its flag. This requirement cannot in any respect be considered an impediment
to the exercise of the freedom of navigation of Costa Rican vessels under
the 1858 Treaty. The Court observes, moreover, that it has not been
presented with any evidence that Costa Rican vessels have been prevented
from navigation on the San Juan river as a result of Nicaragua’s flag
requirement. Accordingly, Costa Rica’s claim that Nicaragua has violated its
obligation not to impose impediments on the exercise of the right of free
navigation by establishing conditions relating to flags cannot be upheld.
(g) Conclusion
133. It follows from the above that Nicaragua has exercised its powers of
regulation regarding the matters discussed under subsections (2) (a), (b),
(e) and (f) of Section III above in conformity with the 1858 Treaty; but
that it is not acting in conformity with the obligations under the 1858
Treaty when it implements measures requiring visas and tourist cards and the
payment of charges in respect of vessels, boat operators and their
passengers exercising the freedom of navigation (paragraphs 111 to 124
above).
IV. SUBSISTENCE FISHING
134. In its final submissions, Costa Rica requests the Court to declare that
Nicaragua has the obligation to permit riparians of the Costa Rican bank to
fish in the river for subsistence purposes. Nicaragua, in addition to
challenging this claim on the merits, has also said that it is inadmissible.
The Court considers that issue first.
135. Costa Rica did not include the claim in respect of fishing in its
Application. It did however include it in its Memorial, explaining that it
was only after the institution of the proceedings that Nicaragua had begun
to prevent the riparians from engaging in fishing. In its Counter-Memorial,
Nicaragua asserted that the 1858 Treaty did not provide for any fishing
rights; it also challenged the existence of any customary right of
subsistence fishing by Costa Rican riparians. It was only in its Rejoinder
that Nicaragua submitted that the claim was not admissible on the ground
that this particular claim was not included nor was it implicit in the
Application. Nicaragua also asserts that this claim did not arise directly
out of the subject-matter of the Application.
136. Costa Rica in the first round of the oral hearings, as well as
discussing the merits of the claim, addressed its admissibility in some
detail. It submitted, first, that Nicaragua, by pleading to the merits in
the Counter-Memorial, implicitly accepted the admissibility of the fisheries
claim; second, that Nicaragua was to be taken as having consented to the
jurisdiction of the Court and is debarred from raising the issue; third,
that Costa Rica had reserved the right to supplement and modify its
Application; fourth, that the claim was implicitly included as being “a step
to aggravate and extend the dispute”, a matter included in the Application;
and, fifth, the claim fell within “other applicable rules of international
law” also referred to in the Application. Nicaragua did not respond to the
specific elements of those arguments and, except for a brief reference back
to its written pleadings, confined itself to the merits, denying that Costa
Rica had established the existence of a customary right.
137. The Court recalls at the outset that admissibility is distinct from
jurisdiction. In the current instance the Court is dealing with the question
of admissibility. It is further recalled that it is for the Court to
determine in the light of the circumstances of each case whether an
application is admissible (Certain Phosphate Lands in Nauru (Nauru v.
Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 240).
Under Article 40, paragraph 1, of the Statute of the Court, the “subject of
the dispute” must be indicated in the Application; as established in the
Court’s jurisprudence, an additional claim must have been implicit in the
Application (Temple of Preah Vihear (Cambodia v. Thailand), Merits,
Judgment, I.C.J. Reports 1962, p. 36) or must arise “directly out of the
question which is the subject-matter of that Application” (Fisheries
Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment,
I.C.J. Reports 1974, p. 203, para. 72).
With regard to Nicaragua’s argument that Costa Rica’s claim relating to
subsistence fishing is inadmissible on the grounds that Costa Rica failed to
include, even implicitly, the claim in its Application, the Court notes that
the alleged interferences by Nicaragua with the claimed right of
subsistence fishing post-date the filing of the Application. As to
Nicaragua’s second argument that the claim does not arise directly out of
the subject-matter of the Application, the Court considers that in the
circumstances of this case, given the relationship between the riparians and
the river and the terms of the Application, there is a sufficiently close
connection between the claim relating to subsistence fishing and the
Application, in which Costa Rica, in addition to the 1858 Treaty, invoked
“other applicable rules and principles of international law”.
138. In addition, the Court observes that, as appears from the arguments on
the merits which the Respondent has presented in the two rounds of written
pleadings and in two rounds of oral hearings, Nicaragua has not been
disadvantaged by Costa Rica’s failure to give notice in the Application.
Similarly, in terms of its responsibility for the due administration of
justice, the Court does not consider itself to have been disadvantaged in
its understanding of the issues by the lack of explicit reference to the
claim in respect of fisheries in the Application. 139. Accordingly,
Nicaragua’s objection to admissibility cannot be upheld.
140. The Court now turns to the merits of Costa Rica’s claim regarding
subsistence fishing rights. Costa Rica submits that there has long been a
practice allowing the inhabitants of the Costa Rican bank of the San Juan to
fish in that river for subsistence purposes. That practice survived the
Treaty of 1858. It is a customary right according to Costa Rica. In support,
it refers to a Royal Ordinance of 1540 under which the upper part of the
river, from the lake for 15 leagues, belonged to Nicaragua and the lower
part to the Caribbean Sea to Costa Rica; for the purposes of navigation and
fishing, the river and lake were to be common. It emphasizes the continuing
practice of Costa Rican riparians of fishing for subsistence purposes,
which, according to Costa Rica, was not challenged by Nicaragua until after
the present proceedings were instituted. Nicaragua responds that Costa Rica
has failed to prove that the custom is established in such a manner that it
has become binding on Nicaragua. While it is true that it has usually
tolerated the limited use of the San Juan for non-commercial fishing by
Costa Rican riparians, this tolerance cannot be seen as a source of a legal
right. Moreover, Costa Rica, according to Nicaragua, has constantly accepted
that it has no rights except for those stemming from the treaties and not
from customary law. Finally, at the hearings, Nicaragua reiterated that it
“has absolutely no intention of preventing Costa Rican residents from
engaging in subsistence fishing activities”. Costa Rica, in its final
statement on the matter, asked the Court in the operative part of its
Judgment to record and give effect to Nicaragua’s stated position that
subsistence fishing will not be impeded.
141. The Court recalls that the Parties are agreed that all that is in
dispute is fishing by Costa Rican riparians for subsistence purposes. There
is no question of commercial or sport fishing. The Court also notes that the
Parties have not attempted to define subsistence fishing (except by those
exclusions) nor have they asked the Court to provide a definition.
Subsistence fishing has without doubt occurred over a very long period.
Leaving aside for the moment the issue of fishing in the river from boats, a
point to which the Court will return, the Parties agree that the practice of
subsistence fishing is long established. They disagree however whether the
practice has become binding on Nicaragua thereby entitling the riparians as
a matter of customary right to
engage in subsistence fishing from the bank. The Court observes that the
practice, by its very nature, especially given the remoteness of the area
and the small, thinly spread population, is not likely to be documented in
any formal way in any official record. For the Court, the failure of
Nicaragua to deny the existence of a right arising from the practice which
had continued undisturbed and unquestioned over a very long period, is
particularly significant. The Court accordingly concludes that Costa Rica
has a customary right. That right would be subject to any Nicaraguan
regulatory measures relating to fishing adopted for proper purposes,
particularly for the protection of resources and the environment.
142. The Court does not agree with Nicaragua’s contention that Costa Rica
accepted in the course of these proceedings that it had no rights except
those stemming from the treaties. Any statement that has been made in that
sense related solely to disputed navigation rights under the 1858 Treaty and
other binding instruments; the fisheries claim, from the outset, was based
on custom.
143. The Court does not however consider that the customary right extends to
fishing from vessels on the river. There is only limited and recent evidence
of such a practice. Moreover that evidence is principally of the rejection
of such fishing by the Nicaraguan authorities.
144. Accordingly, the Court concludes that fishing by the inhabitants of the
Costa Rican bank of the San Juan river for subsistence purposes from that
bank is to be respected by Nicaragua as a customary right.
V. THE CLAIMS MADE BY THE PARTIES IN THEIR FINAL SUBMISSIONS
1. The claims of Costa Rica
145. In its final submissions to the Court at the end of the oral argument,
Costa Rica made a number of distinct claims (see above, paragraph 14).
146. The principal purpose of its Application is to obtain from the Court a
declaration that Nicaragua has a certain number of obligations towards Costa
Rica, Costa Rican vessels and their passengers, and the inhabitants of the
Costa Rican bank of the San Juan river, and that Nicaragua has violated
these obligations which are listed under points (a) to (i) of the final
submissions.
The Court will uphold elements of this claim in the operative part of this
Judgment to the extent that they correspond to the preceding reasoning and
will dismiss the others.
147. Costa Rica presents three further submissions: it requests the Court to
order Nicaragua to cease all the breaches of its obligations which have a
continuing character; to find that Nicaragua should make reparation to Costa
Rica for the injury caused to it by the breaches identified, in the form of
the restoration of the prior situation and compensation in an amount to be
determined at a later stage; and finally to give assurances and guarantees
that it will not repeat its unlawful conduct.
148. As far as the first of these three submissions is concerned, it should
be recalled that when the Court has found that the conduct of a State is of
a wrongful nature, and in the event that this conduct persists on the date
of the judgment, the State concerned is obliged to cease it immediately.
This obligation to cease wrongful conduct derives both from the general
obligation of each State to conduct itself in accordance with international
law and from the specific obligation upon States parties to disputes before
the Court to comply with its judgments, pursuant to Article 59 of its
Statute.
It is not necessary, and it serves no useful purpose as a general rule, for
the Court to recall the existence of this obligation in the operative
paragraphs of the judgments it renders: the obligation incumbent on the
State concerned to cease such conduct derives by operation of law from the
very fact that the Court establishes the existence of a violation of a
continuing character.
The Court may consider it appropriate, in special circumstances, to mention
that obligation expressly in the operative part of its judgment. It sees no
particular reason to do so in the present
case.
149. As for the second submission set forth in paragraph 147 above, it
should be recalled that the cessation of a violation of a continuing
character and the consequent restoration of the legal situation constitute a
form of reparation for the injured State. With regard to the claim for
compensation, the Court notes that Costa Rica has not submitted any evidence
capable of demonstrating that it has suffered a financially assessable
injury. The Court therefore will not uphold that part of the submissions.
150. Finally, while the Court may order, as it has done in the past, a State
responsible for internationally wrongful conduct to provide the injured
State with assurances and guarantees of non-repetition, it will only do so
if the circumstances so warrant, which it is for the Court to assess.
As a general rule, there is no reason to suppose that a State whose act or
conduct has been declared wrongful by the Court will repeat that act or
conduct in the future, since its good faith must be presumed (see Factory at
Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 63;
Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 272,
para. 60;
Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p.
477, para. 63; and Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101). There is
thus no reason, except in special circumstances of which the Court is not
aware in the present case, to order a measure such as that requested by
Costa Rica.
2. The claims of Nicaragua
151. In its final submissions, Nicaragua also submitted several claims to
the Court.
152. First of all, it requests the Court to dismiss all of Costa Rica’s
claims, either because the Respondent has not breached the obligations
incumbent upon it, or because the obligations allegedly breached do not
derive from any rule of international law.
The Court will uphold this claim to the extent that it corresponds to the
reasoning set out in the present Judgment in respect of Costa Rica’s claims.
153. Nicaragua adds a further submission. It requests the Court “to make a
formal declaration on the issues raised by Nicaragua in Section II of
Chapter VII of her Counter-Memorial, [and] in Section I, Chapter VI of her
Rejoinder”.
The declaration requested is the following:
“(i) Costa Rica is obliged to comply with the regulations for navigation
(and landing) in the San Juan imposed by Nicaraguan authorities in
particular related to matters of health and security;
(ii) Costa Rica has to pay for any special services provided by Nicaragua in
the use of the San Juan either for navigation or landing on the Nicaraguan
banks;
(iii) Costa Rica has to comply with all reasonable charges for modern
improvements in the navigation of the river with respect to its situation in
1858;
(iv) revenue service boats may only be used during and with special
reference to actual transit of the merchandise authorized by Treaty;
(v) Nicaragua has the right to dredge the San Juan in order to return the
flow of water to that obtaining in 1858 even if this affects the flow of
water to other present day recipients of this flow such as the Colorado
River.”
The Court notes in this respect that Nicaragua indicated in the course of
the hearings that it would be satisfied to see such a “declaration” appear
in any part of the Judgment, either in the operative paragraph or simply in
the reasoning. It is therefore doubtful whether these can now be
viewed as formal submissions. The Court notes however that, in stating his
final submissions, the
Agent of Nicaragua reiterated the Respondent’s request on this point.
154. In any case, the Court notes that the first two and the fourth points
on which Nicaragua has requested the “declaration” in reality concern
questions raised by Costa Rica and discussed by the Parties throughout the
proceedings. The reasoning of the present Judgment is therefore sufficient
to respond to Nicaragua’s wish that Costa Rica’s obligations towards it
should be stated by the Court.
155. As for the fifth point to be addressed in the requested “declaration”,
on the assumption that it is in the nature of a counter-claim, Costa Rica
has cast doubt on its admissibility, arguing that it is not “directly
connected” with the subject-matter of Costa Rica’s claim, within the meaning
of Article 80 of the Rules of Court. The same issue could arise in respect
of the third point.
In any event it suffices for the Court to observe that the two questions
thus raised were settled in the decision made in the Cleveland Award. It was
determined in paragraphs 4 to 6 of the third clause of the Award that Costa
Rica is not bound to share in the expenses necessary to improve navigation
on the San Juan river and that Nicaragua may execute such works of
improvement as it deems suitable, provided that such works do not seriously
impair navigation on tributaries of the San Juan belonging to Costa Rica.
As Nicaragua has offered no explanation why the Award does not suffice to
make clear the
Parties’ rights and obligations in respect of these matters, its claim in
this regard must be rejected.
***
156. For these reasons,
THE COURT,
(1) As regards Costa Rica’s navigational rights on the San Juan river under
the 1858 Treaty,
in that part where navigation is common,
(a) Unanimously,
Finds that Costa Rica has the right of free navigation on the San Juan river
for purposes of
commerce;
(b) Unanimously,
Finds that the right of navigation for purposes of commerce enjoyed by Costa
Rica includes
the transport of passengers;
(c) Unanimously,
Finds that the right of navigation for purposes of commerce enjoyed by Costa
Rica includes
the transport of tourists;
(d) By nine votes to five,
Finds that persons travelling on the San Juan river on board Costa Rican
vessels exercising Costa Rica’s right of free navigation are not required to
obtain Nicaraguan visas;
IN FAVOUR: President Owada; Judges Shi, Buergenthal, Abraham, Keith,
Bennouna,
Cançado Trindade, Yusuf, Greenwood;
AGAINST: Judges Koroma, Al-Khasawneh, Sepúlveda-Amor, Skotnikov; Judge ad
hoc Guillaume;
(e) Unanimously,
Finds that persons travelling on the San Juan river on board Costa Rican
vessels exercising Costa Rica’s right of free navigation are not required to
purchase Nicaraguan tourist cards;
(f) By thirteen votes to one,
Finds that the inhabitants of the Costa Rican bank of the San Juan river
have the right to navigate on the river between the riparian communities for
the purposes of the essential needs of everyday life which require
expeditious transportation;
IN FAVOUR: President Owada; Judges Shi, Koroma, Al-Khasawneh, Buergenthal,
Abraham,
Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf,
Greenwood;
AGAINST: Judge ad hoc Guillaume;
(g) By twelve votes to two,
Finds that Costa Rica has the right of navigation on the San Juan river with
official vessels used solely, in specific situations, to provide essential
services for the inhabitants of the riparian areas where expeditious
transportation is a condition for meeting the inhabitants’ requirements;
IN FAVOUR: President Owada; Judges Shi, Koroma, Al-Khasawneh, Buergenthal,
Abraham,
Keith, Sepúlveda-Amor, Bennouna, Cançado Trindade, Yusuf, Greenwood;
AGAINST: Judge Skotnikov; Judge ad hoc Guillaume;
(h) Unanimously,
Finds that Costa Rica does not have the right of navigation on the San Juan
river with vessels
carrying out police functions;
(i) Unanimously,
Finds that Costa Rica does not have the right of navigation on the San Juan
river for the purposes of the exchange of personnel of the police border
posts along the right bank of the river and of the re-supply of these posts,
with official equipment, including service arms and ammunition;
(2) As regards Nicaragua’s right to regulate navigation on the San Juan
river, in that part where navigation is common,
(a) Unanimously,
Finds that Nicaragua has the right to require Costa Rican vessels and their
passengers to stop at the first and last Nicaraguan post on their route
along the San Juan river;
(b) Unanimously,
Finds that Nicaragua has the right to require persons travelling on the San
Juan river to carry a passport or an identity document;
(c) Unanimously,
Finds that Nicaragua has the right to issue departure clearance certificates
to Costa Rican vessels exercising Costa Rica’s right of free navigation but
does not have the right to request the payment of a charge for the issuance
of such certificates;
(d) Unanimously,
Finds that Nicaragua has the right to impose timetables for navigation on
vessels navigating on the San Juan river;
(e) Unanimously,
Finds that Nicaragua has the right to require Costa Rican vessels fitted
with masts or turrets to display the Nicaraguan flag;
(3) As regards subsistence fishing,
By thirteen votes to one,
Finds that fishing by the inhabitants of the Costa Rican bank of the San
Juan river for subsistence purposes from that bank is to be respected by
Nicaragua as a customary right;
IN FAVOUR: President Owada; Judges Shi, Koroma, Al-Khasawneh, Buergenthal,
Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood;
Judge ad hoc Guillaume;
AGAINST: Judge Sepúlveda-Amor;
(4) As regards Nicaragua’s compliance with its international obligations
under the 1858 Treaty,
(a) By nine votes to five,
Finds that Nicaragua is not acting in accordance with its obligations under
the 1858 Treaty when it requires persons travelling on the San Juan river on
board Costa Rican vessels exercising Costa Rica’s right of free navigation
to obtain Nicaraguan visas;
IN FAVOUR: President Owada; Judges Shi, Buergenthal, Abraham, Keith,
Bennouna, Cançado Trindade, Yusuf, Greenwood;
AGAINST: Judges Koroma, Al-Khasawneh, Sepúlveda-Amor, Skotnikov; Judge ad
hoc Guillaume;
(b) Unanimously,
Finds that Nicaragua is not acting in accordance with its obligations under
the 1858 Treaty when it requires persons travelling on the San Juan river on
board Costa Rican vessels exercising Costa Rica’s right of free navigation
to purchase Nicaraguan tourist cards;
(c) Unanimously,
Finds that Nicaragua is not acting in accordance with its obligations under
the 1858 Treaty when it requires the operators of vessels exercising Costa
Rica’s right of free navigation to pay charges for departure clearance
certificates;
(5) Unanimously,
Rejects all other submissions presented by Costa Rica and Nicaragua.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this thirteenth day of July, two thousand and nine,
in three copies, one of which will be placed in the archives of the Court
and the others transmitted to the Government of the Republic of Costa Rica
and the Government of the Republic of Nicaragua, respectively.
(Signed) Hisashi OWADA,
President.
(Signed) Philippe COUVREUR,
Registrar.
Judges SEPÚLVEDA-AMOR and SKOTNIKOV append separate opinions to the Judgment
of the Court; Judge ad hoc GUILLAUME appends a declaration to the Judgment
of the Court.
(Initialled) H.O.
(Initialled) Ph. C.
SEPARATE OPINION OF JUDGE SEPÚLVEDA-AMOR
I find myself in full agreement with most of the reasoning of the Court in
the present Judgment. The same is true of almost all the conclusions reached
by the Court in the Operative Clause of the Judgment. However, as regards
the legality of Nicaragua’s imposition of visa requirements, the Court has,
in my opinion, failed to take account of Nicaragua’s legitimate interest in
border and immigration control and to clarify accordingly the extent of
Nicaragua’s regulatory powers to that effect. I further consider that the
Court’s reasoning as regards Costa Rica’s claim relating to subsistence
fishing is based on a weak legal foundation which might undermine the
acceptance of the Court’s finding by the Parties.
I. Border control as a legitimate purpose
1. The Court has concluded that “Nicaragua has the power to regulate the
exercise by Costa Rica of its right to freedom of navigation under the 1858
Treaty”. It adds an important qualification: such right “is not unlimited”;
it is subject to the “rights and obligations of the Parties” (Judgment,
paragraph 87).
2. According to the Court, the exercise of Nicaragua’s regulatory power must
meet certain requirements. Obviously, it must be consistent with the terms
of the Treaty. It further has to be non-discriminatory and reasonable. The
purpose of the regulation must be legitimate and “it must only subject the
activity to certain rules without rendering impossible or substantially
impeding the exercise of the right of free navigation (Judgment, paragraph
87; emphasis added).
3. As regards the burden of proof in respect of Costa Rica’s claims of
unlawful action based on the alleged unreasonableness of Nicaragua’s
exercise of its regulatory power, the Court has clearly stated that it is
for Costa Rica to establish points of facts supporting such claims:
“The Court notes that Costa Rica, in support of its claim of unlawful
action, advances points of fact about unreasonableness by referring to the
allegedly disproportionate impact of the regulations. The Court recalls that
in terms of well established general principle it is for Costa Rica to
establish those points (cf. Maritime Delimitation in the Black Sea (Romania
v. Ukraine), Judgment of 3 February 2009, para. 68, and cases cited there).
Further, a court examining the reasonableness of a regulation must recognize
that the regulator, in this case the State with sovereignty over the river,
has the primary responsibility for assessing the need for regulation and for
choosing, on the basis of its knowledge of the situation, the measure that
it deems most appropriate to meet that need. It will not be enough in a
challenge to a regulation simply to assert in a general way that it is
unreasonable. Concrete and specific facts will be required to persuade a
court to come to that conclusion.” (Judgment, paragraph 101.)
4. Nicaragua, as the State entitled to exercise sovereignty over the San
Juan river, has the “primary responsibility for assessing the need for
regulation and for choosing . . . the measure that it deems most appropriate
to meet that need”. This is a principle which the Court itself has stated
that it must respect when examining the reasonableness of Nicaragua’s
regulations, taking into account “[c]oncrete and specific facts” (Judgment,
paragraph 101). All these issues become particularly relevant for the
Judgment at the section where the Court considers the visa requirement and
the power of Nicaragua to impose immigration controls.
5. On the requirement to stop and identify, the Court has indicated that
“Nicaragua, as sovereign, has the right to know the identity of those
entering its territory and also to know that they have left” (Judgment,
paragraph 104). The Court also considers that “it has been established that
the number of tourists on the river has increased over the years the
requirement [to stop and
identify] has been in force” (Judgment, paragraph 106). The Court concludes
that the requirement is lawful and that Costa Rica did not show that it was
unreasonable
6. According to the Court, Nicaragua’s requirement to obtain departure
clearance certificates serves a legitimate purpose. Additionally, it “does
not appear to have imposed any significant impediment on the exercise of
Costa Rica’s freedom of navigation”; Costa Rica has not shown “a single case
where navigation has been impeded by an arbitrary refusal of a certificate”
(Judgment, paragraph 109).
7. The requirement to fly Nicaragua’s flag under certain circumstances
“cannot in any respect be considered an impediment to the exercise of the
freedom of navigation of Costa Rican vessels”. Moreover, the Court notes
that it “has not been presented with any evidence that Costa Rican vessels
have been prevented from navigation on the San Juan river as a result of
Nicaragua’s flag requirement” (Judgment, paragraph 132).
8. From the preceding paragraphs it becomes clear that the Court has
consistently adopted a line of reasoning which closely follows the general
principles outlined in paragraph 101 of the Judgment, i.e., in all of these
cases the Court has examined whether a requirement imposed by Nicaragua
entails a substantial impediment to the exercise of Costa Rica’s right of
free navigation, and whether the burden of proof has been met by Costa Rica.
The Court answers both questions in the negative. But then there is a sudden
inconsistency when the Court examines the imposition of a visa requirement
on those persons who may benefit from Costa Rica’s right of free navigation.
9. First, the Court recognizes that “[t]he power of a State to issue or
refuse visas is a practical expression of the prerogative which each State
has to control entry by non-nationals into its territory” (Judgment,
paragraph 113).
10. Then the Court itself recalls the “[c]oncrete and specific facts”, that
are “required to persuade a court to come to [the] conclusion” that a
specific regulation is unreasonable (Judgment, paragraph 101). These
concrete and specific facts indicate, according to the Court,
“that in fact the number of tourists travelling on the river in Costa Rican
vessels has increased in the period these requirements have been in force
(see paragraph 99 above). Further, Costa Rica has provided no evidence of
arbitrary refusals of visas to tourists and Nicaragua points out that it
does not require nationals from countries which are the source of most of
the tourists visiting the San Juan to obtain visas. Furthermore, it makes
exceptions for residents of Costa Rican riparian communities and Costa Rican
merchants who regularly use the river.” (Judgment, paragraph 116.)
11. It is clear that, in the light of what the Court has stated, these
“[c]oncrete and specific facts” cannot lead to the conclusion that, by
imposing a visa requirement, Nicaragua is rendering impossible or is
substantially impeding the exercise of Costa Rica’s right of free
navigation. The requirement serves a legitimate purpose, notably the purpose
of border and immigration control, and it is not discriminatory. Costa Rica
has not produced any evidence establishing the unreasonable or
discriminatory character of Nicaragua’s visa requirement nor does the Court
rely on such evidence in the Judgement.
12. Surprisingly enough, the Court, recalling that “the power of a State to
issue or refuse a visa entails discretion”, reaches the conclusion that
“Nicaragua may not impose a visa requirement on those persons who . . . may
benefit from Costa Rica’s right of free navigation. If that benefit is
denied, the freedom of navigation would be hindered. In these circumstances,
an imposition of a visa requirement is a breach of the Treaty right.”
(Judgment, paragraph 115.)
No explanation is provided by the Court as to why the freedom of navigation
will be hindered if a person benefiting from Costa Rica’s entitlement to
free navigation is required to obtain a visa from the State which has
sovereignty over the waters of the San Juan river.
13. The Judgment does not specify why non-Costa Ricans are also entitled to
benefit from free navigation (Judgment, paragraph 114) without complying
with the requirements established by the State which has exclusive dominion
and full sovereignty over the waters of the San Juan river. To attribute the
benefit of the right of free navigation to all foreign nationals, whatever
may be the purpose of their voyage on the waters of the San Juan river and
whatever may be their State of origin, must be considered as contrary to the
principle the Court itself has established in the Judgment: “The power of a
State to issue or refuse visas is a practical expression of the prerogative
which each State has to control entry by non-nationals into its territory.”
(Judgment, paragraph 113.) Surely Nicaragua cannot be barred from exercising
its power to regulate the entry of foreign nationals into its territory.
14. The prohibition to enact any visa requirements for foreign nationals
traversing the waters of the San Juan river may involve a risk for the
public safety of Nicaragua, since there would be no immigration control when
entering the land territory of Nicaragua from the waters of the San Juan
river.
15. A consequence of extending the right of free navigation to all foreign
nationals travelling on the San Juan river, without any further
requirements, would be to force Nicaragua to establish a number of
immigration posts all along the left bank of the San Juan river in the area
where Costa Rica exercises its right of free navigation, although even that
measure will not necessarily prevent illegal entries from the river into
Nicaragua’s land territory by non-Costa Ricans benefiting from a right
legally attributed only to Costa Rica and to Costa Rican nationals.
16. From the Court’s perspective, “Nicaragua may not impose a visa
requirement on those persons who . . . may benefit from Costa Rica’s right
of free navigation. If that benefit is denied, the freedom of navigation
would be hindered.” (Judgment, paragraph 115.) This finding is not
consistent with the Court’s reasoning in previous paragraphs of the Judgment
and it is certainly not based on the “[c]oncrete and specific facts” which,
according to the Court, are required to persuade a court to reach such
conclusion. The reasoning of the Court does not provide any hard facts which
could endorse its argument that Nicaragua would prohibit free navigation by
exercising its discretionary power to issue visas. In this respect, the
Court should have taken into account that, in its written or oral
proceedings, Costa Rica has not submitted any evidence of cases where free
navigation had been impeded by an arbitrary refusal to grant a visa.
Evidence provided by Nicaragua and not contradicted by Costa Rica shows that
“Costa Rica’s tourism traffic on the San Juan River increased by more than
350 per cent between 1998, when Costa Rica says Nicaragua first began to
systematically deny her rights on the San Juan River, and 2004, the year
before this lawsuit began” [CR 2009/7, pp. 45-46, para. 21 (Reichler); see
also CR 2009/5, p. 25, para. 44 (Reichler); RN, para. 4.33, table 1; and RN,
Vol. II, Ann. 71].
Costa Rica’s allegation that the visa requirement has “practically destroyed
Costa Rican commercial transportation of tourists” on the San Juan river
(RCR, p. 159, para. 4.12 (iii)) has not been proven.
17. The Court concludes in its Judgment that Nicaragua “may not require
persons travelling on Costa Rican vessels which are exercising their freedom
of navigation on the river to obtain visas” (Judgment, paragraph 117). But
Nicaragua can invoke certain conventional rights, enshrined in regional and
multilateral treaties, which provide a legal basis for the imposition of
visa requirements and which will enable Nicaragua to regulate immigration
and border control on the waters of the San Juan river under certain clearly
defined circumstances.
18. The American Convention on Human Rights (1969) and the International
Covenant on Civil and Political Rights (1966), to which both Costa Rica and
Nicaragua are parties, provide a similar language in regulating freedom of
movement and residence: “Every person lawfully in the territory of a State
party has the right to move about it and to reside in it subject to the
provisions of the law.” These rights may be “restricted only pursuant to a
law to the extent necessary . . . to prevent crime or to protect national
security, public safety, public order, public morals, public health, or the
rights or freedoms of others” (American Convention, Article 22, see also
Article 12 of the Covenant on Civil and Political Rights). Any of these
conditions could give rise to a justified imposition of visas by Nicaragua.
19. If Nicaragua strictly follows the terms prescribed in the Convention and
in the Covenant, by enacting in a legal instrument the requirements for
foreign nationals to obtain a visa, determining in which circumstances it
will impose restrictions on the issuing of a visa (national security, public
safety, public order, public morals, public health, etc.), it will not be in
breach of any international obligation.
II. Legal basis of subsistence fishing
20. The Court concludes in its Judgment that Costa Rica has a customary
right to subsistence fishing. The Court’s reasoning in the present case is
not in accordance with its previous findings on the recognition of rules of
customary international law. It will be difficult to find a precedent which
corresponds with what the Court has determined in the present case. In
paragraph 141 of the Judgment, the Court provides as follows:
“The Court observes that the practice [of subsistence fishing], by its very
nature, especially given the remoteness of the area and the small, thinly
spread population, is not likely to be documented in any formal way in any
official record. For the Court, the failure of Nicaragua to deny the
existence of a right arising from the practice which had continued
undisturbed and unquestioned over a very long period, is particularly
significant.” (Judgment, paragraph 141.)
These are the grounds on which the Court concludes that there is a customary
right. An undocumented practice by a community of fishermen in a remote
area. A practice which in previous times has not been claimed by Costa Rica
as a right to which it is entitled. A practice which has not been objected
to by Nicaragua -- “the failure of Nicaragua to deny the existence of a
right” -- in circumstances where the existence of a right has not been
claimed, let alone proven.
21. Costa Rica has not presented to the Court, at any time previous to the
submission of its Memorial, evidence of a legal claim by which it would
consider subsistence fishing on the right bank of the San Juan river as a
right appertaining to it. Even Costa Rica’s Application instituting these
proceedings does not include such a claim.
22. Costa Rica is not conclusive in its assertions that there is a customary
right of subsistence fishing. It says that the practice “has taken on a
patina of custom”, unless the opposite can be shown conclusively (RCR, p.
84, para. 3.117). It further argues that the practice of subsistence fishing
“coupled with complete lack of application of internal regulations with
respect to it and the complete absence of any negative response from
Nicaragua, has given rise to a customary local rule” [CR 2009/3, p. 62,
para. 41 (Kohen)]. No need for State practice; no need for opinio juris,
only the lack of protest of Nicaragua to a practice not previously claimed
as a right. However, given the absence of such a claim, there is little
ground to impose on Nicaragua the duty to protest against the contents of an
inexistent claim and, consequently, Costa Rica is not in a position to
provide evidence that Nicaragua accepted subsistence fishing as part of its
legal obligations.
23. It may well be that Costa Rica itself is not convinced of its argument
that the practice of subsistence fishing amounts to a customary rule. Costa
Rica alleges that “it is of little consequence whether we talk about a local
custom, acquiescence, tacit agreement, a territorial régime or even the
survival of a traditional right dating back to the colonial era which has
never been curtailed” [CR 2009/3, p. 62, para. 41 (Kohen)]. It is clear that
Costa Rica’s aim is to obtain recognition from the Court that there is a
right to subsistence fishing, with not too much of a concern as to the legal
basis which supports such a right. It is regrettable that the Court did not
resort to a more solid legal foundation when examining Costa Rica’s claim to
subsistence fishing.
24. Following the Asylum case precedent, Costa Rica must prove that the
customary right of subsistence fishing is established in such a manner that
it has become binding on the other Party and that the practice of
subsistence fishing is the expression of a right appertaining to Costa Rica
and a duty incumbent on Nicaragua (I.C.J. Reports 1950, pp. 276-277). The
principle that the States concerned must act with the conviction that they
are conforming to what amounts to a legal obligation has been reiterated by
the Court on a number of occasions, one example being the North Sea
Continental Shelf cases (I.C.J. Reports 1969, p. 44).
25. Time is another important element in the process of creation of
customary international law. In the present case, Costa Rica’s claim
regarding the existence of a customary right of subsistence fishing for the
local riparian community on the Costa Rican bank of the San Juan river was
made for the first time in its Memorial submitted to the Court on 29 August
2006, i.e., less than three years before the delivery of the Court’s
Judgment. To claim the existence of a customary right, created in such a
short span of time, clearly contradicts the Court’s previous jurisprudence
on the matter; in the Right of Passage case, the Court found:
“This practice having continued over a period extending beyond a century and
a quarter . . . the Court is, in view of all the circumstances of the case,
satisfied that that practice was accepted as law by the Parties and has
given rise to a right and a correlative obligation.” (I.C.J. Reports 1960,
p. 40; emphasis added.)
26. Similarly, in the Nicaragua case, the Court reiterated that in order to
establish a rule of customary international law, it “has to direct its
attention to the practice and opinio juris of States” (I.C.J. Reports 1986,
p. 97, para. 183). In the present case, the practice of a local community of
Costa Rican riparians cannot be equated with the practice of the Costa Rican
State as invoked by Costa Rica (Judgment, paragraph 132). The Court has
repeatedly indicated the nature of acts which it will take into account in
order to determine whether a practice exists, acts which may lead to the
creation of a customary right. These acts include administrative measures,
legislation, acts of the judiciary and treaties.
27. As regards the requirements of State practice and opinio juris, the
Court has been subject to criticism in cases where it recognized the
existence of such a practice in its findings without providing sufficient
support for its claim. In the Arrest Warrant case, the Court indicated that
it had “carefully examined State practice, including national legislation
and those few decisions of national higher courts” (Arrest Warrant of 11
April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J.
Reports 2002, p. 24, para. 58). In her dissenting opinion, Judge ad hoc Van
den Wyngaert was of the view that
“the International Court of Justice, by deciding that incumbent Foreign
Ministers enjoy full immunity from foreign criminal jurisdiction (Judgment,
para. 54), has reached a conclusion which has no basis in positive
international law. Before reaching this conclusion, the Court should have
satisfied itself of the existence of usus and of opinio juris. There is
neither State practice nor opinio juris establishing an international custom
to this effect.” (Ibid., p. 151, para. 23; emphasis added).
28. It follows from the foregoing that subsistence fishing, based on a
customary right as determined by the Court, has no support in law. Costa
Rica’s claim might however be based on other legal foundations which could
provide a better ground for the findings of the Court on this matter, namely
the principle of acquired or vested rights. Already the Permanent Court had
determined that “the principle of respect for vested rights” is “a principle
which … forms part of generally accepted international law” (Polish Upper
Silesia, P.C.I.J., Series A, No. 7, p. 42).
29. In the Land, Island and Maritime Frontier Dispute case, the Chamber also
referred to the concept of acquired rights in the context of the particular
situation that it expected to arise following the delimitation of the land
boundary in some areas where nationals of one Party would, following the
delimitation, find themselves living in the territory of the other, and
property rights established under the laws of the one Party would be found
to have been granted over land which is part of the territory of the other.
The Chamber indicated that it was confident that both Parties would carry
out the necessary measures “in full respect for acquired rights, and in a
humane and orderly manner” (I.C.J. Reports 1992, pp. 400-401, para. 66).
30. Similarly, in the Cameroon v. Nigeria case, the Court determined that it
is up to the Parties to find a solution when a village previously situated
on one side of the boundary has spread beyond it, “with a view to respecting
the rights and interests of the local population” (Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial
Guinea intervening), Judgment, I.C.J. Reports 2002, p. 374, para. 123 and p.
370, para. 107).
31. In the present case, the existence of vested rights or acquired rights
by Costa Rican riparians has not been claimed by Costa Rica. Surely the
Court could have taken the initiative to explore this legal avenue,
explaining the reasons why it regards the argument of acquired rights
founded or unfounded. Furthermore, other legal options should have also been
taken into account by the Court, in accordance with the express petitions
and commitments of the Parties.
32. In the oral proceedings, Costa Rica required the following: “we ask the
Court, in its dispositif, respectfully, to record and give effect to
Nicaragua’s stated position that subsistence fishing by riparians, whether
from the Costa Rican bank or from boats on the river, will not be impeded”
[CR 2009/6, p. 63, para. 30 (Crawford)].
33. Nicaragua replied to this petition by indicating that while it “does not
agree that there is a customary right to fish in her territorial waters, she
has absolutely no intention of preventing Costa Rican residents from
engaging in subsistence fishing activities” [CR 2009/5, p. 27, para. 48
(Reichler)].
34. The undertaking made by Nicaragua before the Court must be regarded as a
legal commitment with a binding character. In the Nuclear Tests Judgment,
the Court found that
“When it is the intention of the State making the declaration that it should
become bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State being henceforth
legally required to follow a course of conduct consistent with the
declaration. An undertaking of this kind, if given publicly, and with an
intent to be bound . . . is binding.” (I.C.J. Reports 1974, p. 267, para.
43.)
35. Similarly, the Court found in a very recent case (Belgium v. Senegal)
that “Senegal, both proprio motu and in response to a question put by a
Member of the Court, gave a formal assurance on several occasions during the
hearings that it will not allow Mr. Habré to leave its territory before the
Court has given its final decision”. Belgium indicated that such a solemn
declaration “could be sufficient for Belgium to consider that its Request
for the indication of provisional measures no longer had any object,
provided that certain conditions were fulfilled”. In the light of these
statements, the Court decided that there was no risk of irreparable
prejudice to the rights claimed by Belgium (case concerning Questions
Relating to the Obligation to Extradite or Prosecute (Belgium v. Senegal),
Provisional measures, Order, 28 May 2009, paras. 69, 71, 72 and 76).
36. In the present case, the Court could thus have followed its previous
jurisprudence by taking note, in the reasoning and in the Operative Clause
of the Judgment, of the legal commitment undertaken by Nicaragua during the
oral proceedings. By following this legal option, by which it would
determine the binding character of the commitment made publicly by Nicaragua
before the Court, the Court could have avoided deviating from its own
precedents on the nature and substance of customary international law. But
it chose a different route, one that will subject the decisions of the Court
to disagreement and objections.
(Signed) Bernardo SEPÚLVEDA-AMOR.
SEPARATE OPINION OF JUDGE SKOTNIKOV
1. I voted in favour of most of the operative paragraphs of the Judgment.
However, I do not share the Court’s reasoning on a number of key points and
disagree with some of its conclusions.
Interpretation of the term “comercio”
2. I agree that Costa Rica’s right of free navigation under the 1858 Treaty
of Limits should not automatically be interpreted restrictively on the
grounds that it represents a derogation from or limitation of the
sovereignty over the San Juan river conferred by that Treaty on Nicaragua.
Indeed, “[w]hile it is certainly true that limitations of the sovereignty of
a State over its territory are not to be presumed, this does not mean that
treaty provisions establishing such limitations, such as those that are in
issue in the present case, should for this reason be interpreted a priori in
a restrictive way” (Judgment, paragraph 48.).
3. However, as was established by the P.C.I.J. in the S.S. “Wimbledon” case,
the restrictive interpretation is in order in case of doubt:
“the fact remains that Germany has to submit to an important limitation of
the exercise of the sovereign rights which no one disputes that she
possesses over the Kiel Canal. This fact constitutes a sufficient reason for
the restrictive interpretation, in case of doubt, of the clause which
produces such a limitation. But the Court feels obliged to stop at the point
where the so-called restrictive interpretation would be contrary to the
plain terms of the article and would destroy what has been clearly granted.”
(S.S. “Wimbledon”, Judgments, 1923, P.C.I.J., Series A, No. 1, pp. 24-25.)
It is obvious that the restrictive interpretation in the present case would
not be contrary to the plain terms of Article VI of the 1858 Treaty and
would not destroy what has been clearly granted. The problem before the
Court is precisely the lack of clarity as to how the term “comercio” should
be interpreted.
4. In these circumstances, the Court should have examined the intentions of
the Parties at the time of the conclusion of the Treaty, taking full account
of the well-established principle that limitations on the sovereignty of a
State are not to be presumed.
5. No evidence submitted by the Parties showed that Nicaragua and Costa Rica
intended at the time the Treaty was concluded to give an evolving meaning to
the word “commerce”. Accordingly, the Court’s presumption should have been
that Nicaragua, when concluding the 1858 Treaty, was unlikely to have
intended to act against its own interest by granting Costa Rica navigational
rights which were not in line with the contemporaneous meaning of the term
“comercio” and which would evolve and expand over time along with the
meaning of that term.
6. The Court’s finding that the term “commerce” should be interpreted in
accordance with its present-day meaning is extraneous to interpretation of
the Treaty per se. Neither the generic nature of the term “commerce” nor the
unlimited duration of the Treaty and the perpetuity of the legal régime
established by it (see Judgment, paragraph 67) excludes the possibility that
the Parties’ intention was to grant Costa Rica navigational rights
determined by the content of the notion “commerce” as it existed when the
Treaty was concluded. The Court’s solution is based solely on the mechanical
application of the jurisprudence which in a particular case favours the
evolutive approach (see Aegean Sea Continental Shelf (Greece v. Turkey),
Judgment, I.C.J. Reports 1978, p. 3). It disregards the jurisprudence which
in other cases favours interpretation based on the contemporaneous meaning
of the term in question (see Rights of Nationals of the United States of
America in Morocco (France v. United States of America), Judgment, I.C.J.
Reports 1952, p. 176; Kasikili/Sedudu Island (Botswana/Namibia), Judgment,
I.C.J. Reports 1999 (II), p. 1045). The specificity of the present case is
not being addressed. The Court ignores the S.S. “Wimbledon” dictum (see
para. 3 above) and related jurisprudence. Consequently, its conclusion runs
counter to the principle that limitations on sovereignty are not to be
presumed.
7. In 1858, and for decades to come, the commerce was confined to trade in
goods. The principal definition in the 1852 edition of the Dictionary of the
Spanish Royal Academy defines “comercio” as “[b]usiness and trafficking that
is done by buying, selling or exchanging some things for others”. As late as
1897, the Alexander Award confirmed that the 1858 Treaty gave Costa Rica the
right of free navigation “con objetos de comercio” so that it “would have an
Atlantic outlet for the import and export of goods”. Other commercial
treaties entered into at the time reveal themselves to be exclusively
concerned with trade in goods (see, for example, the Volio-Zelaya Treaty of
Commerce (Costa Rica-Nicaragua) of 1868). There is very good reason to
assume that in 1858 the Parties understood the meaning of the word
“comercio” as being limited to trade in goods.
8. However, this conclusion would have left open the question as to whether,
at the present time, the transport of passengers and tourists is covered by
Article VI of the 1858 Treaty. To answer this question, the Court should
have examined the practice of the Parties subsequent to the conclusion of
the Treaty. As was recalled in the Kasikili/Sedudu Island case, “when called
upon to interpret the provisions of a treaty, the Court has itself
frequently examined the subsequent practice of the parties in the
application of that treaty” (Kasikili/Sedudu Island (Botswana/Namibia),
Judgment, I.C.J. Reports 1999 (II), p. 1076, para. 50).
9. Nicaragua submits evidence that at the time the Treaty of Limits was
concluded and for more than 100 years thereafter, it alone controlled the
commercial transport of passengers. Be that as it may, it is clear that
Costa Rican-operated tourism on the San Juan river has been present for at
least a decade, and to a substantial degree. Nicaragua has never protested.
This is in contrast to Nicaragua’s treatment of police vessels, which it has
repeatedly asserted have no right whatsoever to travel on the San Juan.
Nicaragua has not only engaged in a consistent practice of allowing tourist
navigation by Costa Rican operators, but has also subjected it to its
regulations. This can be seen as recognition by Nicaragua that Costa Rica
acted as of right. The common view of the Parties to that effect can be
inferred from the Agreement of Understanding on the Tourist Activity in the
Border Zone of the San Juan river between the Ministers of Tourism of the
two countries, signed on 5 June 1994.
10. In my view, the subsequent practice in the application of the Treaty
suggests that the Parties have established an agreement regarding its
interpretation: Costa Rica has a right under the 1858 Treaty to transport
tourists -- that is, passengers who pay a price for the service provided.
This right of Costa Rica necessarily extends to the transport of all other
passengers who pay a price to the carriers.
Issues related to freedom of navigation
11. According to the Judgment, the Parties must be presumed to have intended
to preserve for riparians living on the Costa Rican bank of the San Juan
river a minimal right of navigation to meet their essential requirements.
Therefore such a right can be inferred from the provisions of the Treaty as
a whole (see Judgment, paragraph 79). Furthermore, for the same reasons, it
can be inferred from the Treaty that Costa Rica has the right of navigation
on the San Juan with official vessels (including police vessels) that
provide the population with what it needs in order to meet the necessities
of daily life (see Judgment, paragraph 84).
12. I am not at all convinced that any navigational rights have been
established by the 1858 Treaty other than in its Article VI -- the only
article dealing with the issue of navigation.
13. Although I disagree with the majority that the riparians on the Costa
Rican bank have a right under the Treaty to navigate on the San Juan river,
I do think that the Treaty left unaffected the practice of riparians to
travel on the river to meet the requirements of their daily life. This is to
be continued and respected by Nicaragua.
Given the historical background to the conclusion of the Treaty and its
actual terms, it is very unlikely that in 1858 either Party had in mind the
sparse indigenous population of that bank. The subsequent conduct by
Nicaragua supports this conclusion. It shows that Nicaragua has never been
concerned about the practice in question. The fact that Nicaragua did not
extend its regulations, such as the visa requirement, to daily routine
navigation by inhabitants of Costa Rica’s bank of the San Juan is indicative
of this practice being treated by Nicaragua as extraneous to the 1858 Treaty
régime.
14. I see no justification for the Court’s finding that Costa Rica has the
right, albeit limited, to navigate with official vessels to provide services
for the riparian communities.
Even if one accepts the Court’s presumption that the Parties, when
concluding the Treaty, intended to preserve a minimal right of navigation
for riparians, but decided not to spell this out in the text, it is still
difficult to see how this line of reasoning could lead to the conclusion
that the Court reaches in respect of official vessels. No practice of using
official vessels for the purpose of providing services for riparian
communities existed at the time the Treaty was concluded. It is very
difficult to imagine the Parties intending to preserve a right which is not
derived from pre-existing practice.
It is clear that Costa Rica has certain needs calling for use of the San
Juan river for non-commercial purposes by public vessels, including
providing medical and other services to riparians. However, these needs do
not translate into rights. The Parties should reach an arrangement on the
subject on their own terms. It is not for the Court to do so on their
behalf. As the Court has had occasion to note in the past, “[i]t is the duty
of the Court to interpret the Treaties, not to revise them” (Interpretation
of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, Advisory
Opinion, I.C.J. Reports 1950, p. 229).
Issues related to regulatory powers
15. I fully agree that the titleholder of the right of free navigation is
Costa Rica. However, I cannot concur with the Court when it puts the owners
and operators of Costa Rican vessels together with the passengers on those
vessels, including non-Costa Ricans, in a single category of persons who
benefit from that right (see Judgment, paragraph 114). I certainly cannot
accept that it is vessels themselves which are exercising the freedom of
navigation (see Judgment, paragraphs 113, 117, 120).
In my view, the right to freedom of navigation afforded to Costa Rica is
exercised by persons -- owners and operators of vessels navigating the San
Juan river. It is the carrier that exercises the freedom to navigate.
Sellers or buyers of goods may benefit from the possibilities which are
offered by Costa Rica’s right to free navigation; they do not, however,
exercise that right. Tourists and passengers are merely purchasing a
service. The 1858 Treaty cannot be read as affording the perpetual right of
free navigation for commercial purposes to those persons, who may be Costa
Ricans, nationals of third countries or, conceivably, Nicaraguan citizens.
Nor can it be interpreted as affording to them any other rights, such as
exemption from Nicaragua’s visa régime, by virtue of Costa Rica’s right to
freely navigate the San Juan river.
16. Imposing a visa requirement on tourists or passengers travelling on
Costa Rican vessels is within Nicaragua’s regulatory rights under the 1858
Treaty. It derives from Nicaragua’s “exclusive dominium and imperium over
the waters of the San Juan river” (Judgment, paragraph 44). This regulatory
power is distinct from Nicaragua’s powers to regulate navigation on the San
Juan river. As the Court states, “the power of a State to issue or refuse
visas is a practical expression of the prerogative which each State has to
control entry by non-nationals into its territory” (Judgment, paragraph
113). This remains true, as was established in the Right of Passage case,
even in cases where freedom of transit exists:
“In view of the tension then prevailing in intervening Indian territory, the
Court is unable to hold that India’s refusal of passage to the proposed
delegation and its refusal of visas to Portuguese nationals of European
origin and to native Indian Portuguese in the employ of the Portuguese
Government was action contrary to its obligation resulting from Portugal’s
right of passage. Portugal’s claim of a right of passage is subject to full
recognition and exercise of Indian sovereignty over the intervening
territory and without any immunity in favour of Portugal. The Court is of
the view that India’s refusal of passage in those cases was, in the
circumstances, covered by its power of regulation and control of the right
of passage of Portugal.” (Right of Passage over Indian Territory (Portugal
v. India), Merits, Judgment, I.C.J. Reports 1960, p. 45.)
17. The visa requirement may affect the business interests of persons or
entities engaged in the commercial activity of providing tourist or
passenger transport. It may inconvenience individual tourists. But it is not
inconsistent with Costa Rica’s right to free navigation for commercial
purposes. The exercise by Costa Rica of this right would certainly be
impeded by Nicaragua’s systematic refusal to issue visas to boatmen or by
its refusal to grant visas to a whole category of passengers, for example
tourists. This, however, would have constituted a manifest abuse of the visa
requirement. Any right can be abused. It is not a reason, however, to
question a right, let alone to deny it. The Court itself acknowledges that
the visa requirement imposed by Nicaragua has not impeded growth of Costa
Rica’s passenger transport on the San Juan river (see Judgment, paragraph
116).
18. Following the Court’s approach, the fact that the power of a State to
issue or refuse a visa entails discretion is decisive in determining that
Nicaragua may not impose a visa requirement on those persons who may benefit
from Costa Rica’s right of free navigation. “If that benefit is denied, the
freedom of navigation would be hindered.” (Judgment, paragraph 115.)
However, the Court accepts in paragraph 118 that Nicaragua can refuse entry
(i.e., according to the Court’s logic, deny the benefit of Costa Rica’s
right from free navigation) to a particular person if such action is
justified in terms of relevant purpose, for example, law enforcement or
environmental protection. Nicaragua “can do that at the point that the
person identifies him or herself” (Judgment, paragraph 118). No breach of
the freedom of navigation would be involved in that case. In other words, a
denial of entry, for good reason, through application of the visa mechanism
would, in the Court’s view, constitute a breach of Costa Rica’s Treaty right
to free navigation, whereas a denial of entry on the spot for the very same
reason would not. In my view, Costa Rica’s right would not be breached in
either case, since it is the same power which is being exercised and the
nature of discretion it entails in both instances is the same.
Finally, should it be true that Costa Rica’s freedom of navigation is
hindered by the visa requirement, then it would follow that Nicaragua is
breaching its own freedom of navigation by maintaining this requirement in
respect of passengers on Nicaraguan boats. The Nicaraguan visa regulation
applies to non-Nicaraguans irrespective of the nationality of the carrier.
This alone, in my view, should have been reason enough for the Court to
uphold Nicaragua’s position on the subject.
19. The Court acknowledges that Nicaragua’s regulation requiring Costa
Rica’s vessels to fly the Nicaraguan flag does not impede the freedom of
navigation. However, the legal nature of this regulation remains unclear.
Nicaragua suggested a wide variety of choices for the Court. It was referred
to as being an attribute of Nicaragua’s sovereignty and a matter of
international custom and practice. No evidence of State practice was
produced supporting Nicaragua’s contentions. The Court finds that Nicaragua
may impose this regulation simply “in the exercise of its sovereign powers”
(Judgment, paragraph 132). The question is, however, whether the flag
requirement meets other criteria set forth by the Court in respect of
Nicaragua’s regulatory powers (see Judgment, paragraph 87). I do not think
that Nicaragua succeeded in presenting a legitimate purpose that it is
seeking to pursue in imposing this requirement. Such a purpose would be
evident should Nicaragua require Costa Rican vessels to fly the Costa Rican
flag, since it shows the identity of the vessel. The Nicaraguan authorities
may indeed be interested in distinguishing between its own and Costa Rican
boats. By contrast, it seems that the sole purpose of requiring Costa Rican
boats to fly the Nicaraguan flag is to reassert Nicaragua’s sovereignty over
the San Juan river. As Nicaragua puts it: “Flying the latter is a gesture of
respect for the sovereignty of the host State.” (Rejoinder of Nicaragua, p.
215, para. 4.93.) Given the fact that Nicaragua’s sovereignty over the San
Juan river is beyond doubt, I do not think that any practical purpose is
achieved by imposing the requirement in question. However, I do believe that
Costa Rica could have accepted Nicaragua’s request as a matter of courtesy.
Subsistence fishing
20. In my view, the 1858 Treaty, as in the case of the practice of riparians
travelling on the river to meet the requirements of their daily life (see
para. 13 above), left unaffected the practice of subsistence fishing by
riparians from the Costa Rican bank of the San Juan river. I am not
convinced that Nicaragua has a right to regulate this practice as such.
However, the Parties should co-operate in making sure that this practice
does not cross the threshold of fishing for commercial purposes.
(Signed) Leonid SKOTNIKOV.
Declaration of Judge
ad hoc Guillaume |
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