The Dispute Regarding Navigational and Related Rights - Essay Example

? Public international law LLB 2 YEAR Portfolio Assessment Question The Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua) concerns the rights of Nicaragua and Costa Rica over part of the San Juan River, located in the territory of the former, but whose right bank and certain navigational rights belong to the latter. In its July 13, 2009 Judgment, the International Court of Justice ("ICJ") made a number of specific rulings regarding the scope of Costa Rica's right to free navigation, Nicaragua's power to regulate that right, and Costa Rican riparians' subsistence fishing rights.'1 Aside from its immediate significance for the litigating parties, the Judgment is noteworthy for its statements on treaty interpretation, international watercourses law, and state responsibility. Part 1: Background on the Dispute In 1858, Costa Rica and Nicaragua ratified a Treaty of Limits granting Nicaragua sovereign jurisdiction over a 140 km stretch of the San Juan River, and Costa Rica sovereign rights over its right bank, as well as certain ,navigational rights, "con objetos de comercio."2 An 1888 arbitral award rendered by United States President Grover Cleveland affirmed the Treaty's continuing validity3 and upheld Costa Rica's right to navigate the river with revenue service vessels, but not war vessels.3. In 1916, the Central American Court of Justice held that Nicaragua breached the 1858 Treaty by signing the Chamorro-Bryan Treaty of 1914, granting the United States "exclusive proprietary rights" for the construction and maintenance of an inter-oceanic canal through the river. Excluding a 1956 Agreement on river traffic and protection of the border, no events of significance to the treaty regime occurred for almost seventy years. Starting in the 1980s, Costa Rica protested Nicaragua's introduction of new restrictions on navigation, while Nicaragua alleged Costa Rica was exceeding its right of free navigation under the 1858 Treaty. Tensions mounted. On September 29, 2005, Costa Rica instituted proceedings against Nicaragua at the ICJ claiming that Nicaragua was in breach of its obligations under the 1858 Treaty. Nicaragua raised no objections to the Court's jurisdiction. Costa Rica sought an order declaring Nicaragua in breach, and requiring Nicaragua to cease unlawful conduct, make reparation, and give assurances of non-repetition. Nicaragua denied breaching any obligations, asserted that any obligations allegedly breached did not derive from any international law rule, and sought a number of rulings on its power to regulate Costa Rica's navigational rights. Part 2: Summary of the Judgment The July 13, 2009 Judgment provides concrete guidance on the extent of Costa Rica's right to free navigation, defines the scope of Nicaragua's power to regulate Costa Rica's right, and identifies a customary right of Costa Rican riparians to engage in subsistence fishing. Specifically, the Court held that Costa Rica has a treaty right to free navigation "for the purposes of commerce," including the transport of passengers and tourists, and that Nicaragua cannot impose visa or tourist card requirements on passengers of Costa Rican vessels. Also, the Court concluded that Costa Rican riparians have the right to navigate between their communities to meet everyday essential needs, as do Costa Rican official vessels used solely to provide essential services to riparian communities. Costa Rica does not have the right, however, to navigate with vessels carrying out police functions, to exchange police border post personnel, or to resupply posts. The Court ruled that Nicaragua has the right to require Costa Rican vessels to stop at the first and last Nicaraguan posts on their route; require river travelers to carry an identity document; issue, but not charge for, departure certificates; impose navigation timetables; and require vessels to display the Nicaraguan flag. Part 3: The Judgement 1. On 29 September 2005 the Republic of Costa Rica filed in the Registry of the Court an Application of the same date, instituting proceedings against the Republic of 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 Bogoti." 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 Bogoti 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. Ant~nio Cangado Trindade and Nicaragua Mr. Gilbert Guillaume. Mr. Cangado 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 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; (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 canry 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 r6gime 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." Part 4: The Judgment's Significance The Judgment is significant, first, because it clarifies the content of both states' rights and duties under the 1858 Treaty. It adjudicates the legality of specific practices that led to substantial tension between the parties. Simply, the Judgment's most significant contribution may be the perpetuation of a one hundred and fifty year old treaty regime, and the maintenance of friendly relations between two neighbors. The Judgment also touches upon points of interest to international law scholars and practitioners in the areas of treaty interpretation, international watercourses law, and state responsibility. Part 5: Treaty Interpretation In interpreting key treaty provisions, the Court reaffirmed the customary international law status of the Vienna Convention on the Law of Treaties' Articles 31 and 32, and added to its jurisprudence on treaty interpretation. It rejected Nicaragua's argument that treaty provisions restricting national sovereignty should be construed narrowly, finding instead that "[a] treaty provision which has the purpose of limiting 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 in the text of the treaty and the other relevant factors in terms of interpretation." The Court provided guidance, too, on when a treaty term - here, "comercio" - should be interpreted in accordance with its meaning at the time of treaty conclusion versus at the moment of application. The parties' subsequent practice must be considered, as well as their intentions, at the time of treaty conclusion, to give a term a fixed or evolving meaning. The Court created a presumption in favor of evolving meaning "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'...." Part 6: International Watercourses Law The Judgment is significant both for what it does and does not do for international watercourses law. While the Judgment provides guidance on the power to regulate the rights of riparian neighbors, the Court declined to make any broad statements about customary international law of international rivers, relying exclusively on the treaty regime in place. The Court did, however, find a customary right to subsistence fishing. The Court stated that any Nicaraguan regulation of Costa Rica's right to free navigation must; (1) not render impossible or substantially impede the exercise of the right, (2) be consistent with treaty terms, (3) have a legitimate purpose, (4) not be discriminatory and must apply equally to both states' vessels, and (5) not be unreasonable -meaning that the regulation's negative impact cannot be excessive when compared to the protection afforded to the regulatory purpose. It also declared that environmental protection is a legitimate purpose for Nicaraguan regulation.' Nicaragua must notify Costa Rica of regulations regarding the river's navigational regime, but neither notice nor consultation prior to adoption of regulations is required." In assessing a regulation's reasonableness, the Court recognized that the regulator has primary responsibility for assessing regulatory needs and choosing measures to meet them. The regulation challenger must adduce specific facts to show that a regulation is unreasonable. The Court did not identify or apply any customary international law to the dispute. Instead, it found the 1858 Treaty and subsequent arbitral or judicial decisions "completely define[ ] " Costa Rica's right of free navigation. The Court declined to make a determination that the San Juan River is an "international river," or that such a designation would entail application of rules of customary international law. Instead, the Court ruled that customary international law rules "could only be operative ... 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 regime applicable to navigation, by the riparian states on a specific river or a section of it." The Court did, however, find a customary right to engage in subsistence fishing for right bank riparians. This is the only non-treaty right the Judgment discusses. Part 7: State Responsibility In response to Costa Rica's request that the Court order Nicaragua to cease all breaches of its obligations of a continuing character, the Court reminded states that they are under an international law obligation to cease wrongful behavior immediately, but saw "no particular reason" to mention the obligation expressly in Judgment's operative part.' The Court also noted that to establish a claim for compensation for injury, a state must show it suffered "a financially assessable injury." The Court clarified, too, that it will refrain from ordering a state found in breach of its international obligations to provide assurances and guarantees of non-repetition, unless special circumstances are present, which is for the Court to determine. Conclusion Although this case does not appear to be one of extraordinary significance in the Court's jurisprudence, its statements on treaty interpretation, regulation of rivers, subsistence fishing rights, and state responsibility will undoubtedly resurface in future disputes. Perhaps of more immediate concern, leaders in both countries have expressed satisfaction with the Court's Judgment.4 The drafters of the 1858 Treaty are long gone, but the regime they crafted lives on. Read More