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IBRU: Centre for Borders Research

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Costa Rica takes dispute with Nicaragua to the ICJ

(22 November 2010)

On 18 November 2010, Costa Rica instituted unilateral proceedings against Nicaragua at the International Court of Justice (ICJ) and submitted an application for provisional measures. This move stems from a border dispute that emerged on 2 November when it was discovered that Nicaraguan forces may be occupying a portion of Costa Rica territory based on an erroneous depiction of the boundary in Google Maps that had been used by Nicaraguan officials. The US State Department which provides the boundary data to Google has stated that their original depiction was in error and has since changed the line to conform with the boundary as defined in the 1897 Alexander arbitral award. However, Costa Rica’s application to the ICJ indicates that the boundary dispute is one of a number ofunresolved issues with neighbouring Nicaragua.

Costa Rica claims that by occupying its territory Nicaragua is in contravention of their existing boundary agreements and is therefore violating Costa Rica’s territorial integrity. The application also suggests that Nicaraguan officials have been attempting to construct a canal to connect the San Juan river with Laguna los Portillos (Harbour Head Lagoon), across the neck of a peninsula known as Harbour Head at the northern extremity of Calero island in the San Juan river delta. Since it believes this activity has taken place on its territory, Costa Rica is requesting reparations for any damages. In addition, Costa Rica claims that Nicaragua’s dredging works in the San Juan river itself could divert the flow of water away from the Rio Colorado which is currently the main outflow channel of the upstream San Juan river and is located within Costa Rican territory. Costa Rica believes that not only are Nicaragua’s actions violating its territorial integrity, they also violate a host of other bilateral agreements largely related to the use of the San Juan river, as well as the multilateral Ramsar Convention on Wetlands.

The boundary between Costa Rica and Nicaragua is defined in this area along the right bank of the San Juan river leaving the river wholly within Nicaraguan territory. However, Costa Rica holds that Nicaragua’s dredging work is an attempt “to artificially channel the San Juan away from its natural watercourse” which it believes requires “the consent of Costa Rica.” Both states recently went before the ICJ to resolve their dispute over navigation rights in the San Juan river. In its 2009 decision, the ICJ confirmed that the river itself was within Nicaraguan territory but that Costa Rican vessels should be allowed to navigate under certain conditions.

In this latest application, Costa Rica has also requested simultaneously for the ICJ to indicate provisional measures against Nicaragua. Provisional measures are essentially non-binding statements made by the ICJ that are intended to encourage a state to desist in an activity that is considered by another state to be illegal under international law, until the overall dispute can be resolved. Costa Rica has asked that the ICJ provide provisional measure to stop Nicaragua’s canal and dredging works and to withdraw its personnel from the area in dispute.

Although the full text of the application has not yet been made public, it is believed that Costa Rica is basing ICJ jurisdiction over these proceedings on Article XXXI of the Organization of American States’ (OAS) 1948 Treaty on the Pacific Settlement of Disputes (Pact of Bogota) which allows Latin American states to unilaterally submit applications to the ICJ. In acceding to the Pact of Bogota in 1948, Nicaragua stated that its acceptance of ICJ jurisdiction under the treaty would not apply to situations involving arbitral awards or decisions that it has challenged. This will no doubt be an issue in establishing the ICJ’s jurisdiction over the case.

Prior to seizing the ICJ, Costa Rica had asked the OAS to mediate the dispute with Nicaragua. The Secretary General of the OAS reported on the situation on 9 November urging both parties to negotiate a peaceful settlement and to withdraw armed forces from the disputed area. This report was later accepted by the Permanent Council of the OAS which has called a meeting of consultation for the ministers of foreign affairs on 7 December at the request of Costa Rica. Nicaragua will likely ignore this forth-coming meeting. Nicaragua is currently in proceedings at the ICJ with Colombia over several disputed reefs and banks as well as their maritime boundary in the Caribbean Sea. Recently, Costa Rica has applied to intervene in that case.

Based on the 1897 Alexander arbitral award, the boundary should extend around the Harbour Head peninsula and placing the area in dispute within Costa Rican territory. However, Nicaragua’s canal works on Harbour Head, dredging works in the San Juan river itself and the resulting impacts claimed by Costa Rica may be more difficult to untangle legally.

Source: ‘Costa Rica institutes proceedings against Nicaragua and requests the Court to indicate provisional measures’ ICJ Press Release No. 2010/38, 19 November 2010; ‘Convocation of the Meeting of Consultation of Ministers of Foreign Affairs to Asses the "Situation in the Border Area Between Costa Rica and Nicaragua”’ OAS Press Release E-17, 18 November 2010.