BORDER DISPUTES BETWEEN NICARAGUA AND COSTA RICA

The case deals with boundary disputes, it is therefore essential to list treaties which deal with boundary disputes and it is also important for the court to interpret the provisions of a treaty in the present case and this can only be done in terms of customary international law on the subject matter as reflected in Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties because it has various means of developing peaceful cooperation among nations regardless of their constitutional and social systems. Article 2(1) of the Vienna Convention[1969] established the definition of a treaty; it went ahead to state that “treaty" means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;

LIST OF TREATIES ON BOUNDARY DISPUTES

Boundary Waters Treaty [1] (Treaty Between the United States and Great Britain Relating to Boundary Waters between the United States and Canada; 36 Stat. 2448; T.S. 548) -- The treaty was signed in Washington, D.C.on January 11, 1909,

The purpose of this treaty is to prevent disputes regarding the use of boundary waters and settle all questions pending or that may arise between the United States and Canada involving the rights, obligations, and interests of both nations along their common frontier. The treaty establishes the International Joint Commission, with three members appointed by each country, to review and make recommendations on disputes and other issues involving U.S./Canada boundary waters.

The Treaty of Asurar [2] Ali- This treaty was signed on February of 1639 between the Mughal commander Allah Yar Khan and the Ahom commander Momai Tamuli Borbarua, According to the treaty, the boundary between the Mughals and Ahoms was fixed on the Barnadi River in the northern bank [utarkul] of the Brahmaputra River and the Asurar Ali [Ali is causeway in Assamese] in the southern bank [dakhinkul]. The Ahom king recognized the supremacy of the Mughals in Kamrup, and the Mughal fauzdar agreed not to interfere in the Ahom kingdom. Trade and commerce between the two regions was permitted afterwards.

The Treaty of Tartu [3] -This treaty was made between Finland and Soviet Russia was signed on 14 October 1920 after negotiations that lasted for four months. The treaty confirmed the border between Finland and Soviet Russia after the Finnish civil war and Finnish volunteer expeditions in Russian East Karelia. Ratifications of the treaty were exchanged in Moscow on December 31, 1920. The treaty was registered in the League of Nations Treaty Series on March 5, 1921.

HISTORY PROCEEDINGS ON THE CASE

CANAZ TREATY(1858)

The border between the Costa Ricans and Nicaraguans is defined by the course of the San Juan River which flows to the east and the Caribbean. The border was established in 1858 by the Canas-Jerez Treaty, negotiated between Costa Rica and Nicaragua at the conclusion of a military conflict which finally ended the possibility of a trade route between the Atlantic and Pacific Oceans in this region of Central America. According to the terms of the treaty the south bank represents the start of Costa Rican territory; however Nicaragua maintains sovereignty over the river itself. Costa Rica has the right to navigation for commerce.

The two nations asked United States President Grover Cleveland in 1886 to address issues which the Canas-Jerez Treaty did not address, and also deal with the complexities of the changing river. The terms of the Cleveland Award included that Nicaragua may modify the waterway in order to maintain navigation, however must consent with Costa Rica on such changes.

Issues caused by the meandering river required another ten years to resolve after sending an engineer to survey the Rio San Juan and complete the arbitration. Further questions were decided in 1956 with the Fournier-Sevilla Agreement, and later in a decision from the United Nations International Court of Justice in 2009. The court issued a 58 page resolution and gave Nicaragua the exclusive power to station the Rio San Juan.

Recently Costa Rican Government filed a case with the international court requesting a decision on the incursion of Nicaraguan military onto Costa Rican territory and the construction of a canal designed to divert the flow of the Rio San Juan. If successful the course of the river could be permanently altered, and Nicaragua will control a deep water route between the Caribbean and Lake Nicaragua.

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 official.

Costa Rica claimed 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.

APPLICATION OF THE PROVISIONAL MEASURES

The Court recalled in the case of Nicaragua and Costa-Rican that its power to indicate provisional measures under Article 41 of the Statute has as its object the preservation of the respective rights of the parties pending its decision, these clearly shows that the Court may exercise this power only if it is satisfied that the rights asserted by a party are at least plausible, and that a link exists between the rights which form the subject of the proceedings before the Court on the merits of the case and the provisional measures being sought.

Costa Rica requested simultaneously for the ICJ to indicate provisional measures against Nicaragua. 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.

Judge Greenwood looked at the criteria to be applied when the Court is asked to indicate provisional measures of protection and finally said that the Court must be satisfied that the rights claimed by a party are plausible.

The case of Costa Rican and Nicaraguans shows 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 the 7th 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.

PLAUSIBLE CHARACTER

Which Country’s right is being protected?

Costa Rica alleges that the rights claimed by it and forming the subject of the case on [4] the merits are, on the one hand, its right to assert sovereignty over the entirety of Isla Portillos and over the Colorado river and, on the other hand, its right to protect the environment in those areas over which it is sovereign. Nicaragua, for its part, contends that it holds the title to sovereignty over the northern part of Isla Portillos, that is to say, the area of wetland of some three square kilometres between the right bank of the disputed cano, the right bank of the San Juan river up to its mouth at the Caribbean Sea and the Harbor Head lagoon (hereinafter the “disputed territory"), and argues that its dredging of the San Juan river, over which it has sovereignty, has only a negligible impact on the flow of the Colorado river, over which Costa Rica has sovereignty.

S0VERIGNTY

The Canas-jerez treaty made on the 15th of April, the Cleveland Award made on the 22nd of March 1888,the Central American Court Sentence made on the 30th of September 1916 goes a long way to recognise and ensure the republic of Nicaragua exclusive sovereignty over the San Juan River and it is therefore only responsible for Nicaragua to exercise the attributes of Sovereignty, for e.g. the right to defense, maintaining and securing the public order.

PREVIOUS DISPUTES RESOLVED BY THE ICJ

There have been previous disputes similar to the Nicaragua and Costa Rica border disputes in the past century and they include:

1. The international court of justice ruling regarding an illegal Israeli land-Arab, Apartheid wall

ICJ ruled that Israel was under an obligation to terminate its breaches of international law, ICJ said that it was under an obligation to cease forthwith the works of construction of the wall being built in the occupied Palestine territory to dismantle forthwith the structure there in situated. The Court determines the rules and principles of international law which are [5] relevant to the question posed by the General Assembly.  The Court begins by citing, with reference to Article 2, paragraph 4, of the United Nations Charter and to General Assembly resolution 2625 (XXV), the principles of the prohibition of the threat or use of force and the illegality of any territorial acquisition by such means, as reflected in customary international law.  It further cites the principle of self-determination of peoples, as enshrined in the Charter and reaffirmed by resolution 2625 (XXV).  As regards international humanitarian law, the Court refers to the provisions of the Hague Regulation of 1907, which have become part of customary law, as well as the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949, applicable in those Palestinian territories which before the armed conflict of 1967 lay to the east of the 1949 Armistice demarcation line (or “Green Line") and were occupied by Israel during that conflict.  The Court further notes that certain human rights instruments (International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights and the United Nations Convention on the Rights of the Child) are applicable in the Occupied Palestinian Territory.

2. ICJ RULING ON CAMEROON V NIGERIA 1993

The case concerns the land and maritime boundary between Cameroon and Nigeria. The ICJ [6] after deliberation, made a regard to Articles 41 and 48 of the statute of the court and to Articles 73,74 and 75 of the rules of the court and made orders, one of which is ‘’considering that, independently of the requests for the indication of provisional measures submitted by the parties to preserve specific rights, the court possesses by virtue of article 41 of the statute the power to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that circumstances so require (cf.frontier dispute, provisional measures, order of 10 January 1986,ICJ reports 1986,p.9,para 18).

The ICJ gave provisional measures to both countries and some of them are:

A. unanimously (both parties should ensure that no action of any kind and particularly no action by their armed forces is taken which might prejudice the rights of the other in respect of whatever judgment the court may render in the case).

B. By sixteen votes to one (both parties should observe the agreement reached between the ministers for foreign affairs in kana, Togo, on 17th of February 1996, for the cessation of all hostilities in the bakassi peninsula and many other measures.

APPLICATION OF BURKINA FASO V MALI ON THE PRESENTED CASE(Costa Ricans and the Nicaraguans)

An agreement was made on the 16th of September 1983 and filed with the Registry of the [7] Court on 20 October 1983, the Republic of Burkina Faso and the Republic of Mali submitted a dispute to the Court concerning the delimitation of their common frontier and in the presented case, the subject matter was on border dispute. According to Article II of this Special Agreement the case was to be decided by a Chamber of the Court constituted according to Article 26(2) of the Statute. Before the Chamber had the opportunity to decide the question, the dispute flared up into war on Christmas Day 1985 apparently because of a census carried out by Burkinabe authorities allegedly violating Malian sovereignty and the presented case, the Costa Ricans sending troops to the disputed area violated Nicaraguan’s sovereignty. In conclusion of the Burkina Faso case, the chamber indicated a few measures in the judgment just like in the case of costa Rica and the Nicaraguans ,the measures like both parties should ensure that no action was taken that might extend or aggravate the dispute or prejudice the right of the other party to compliance with any judgment, and not only that both parties should refrain from any such act to impede the gathering of evidence, that both the governments should continue to observe the ceasefire instituted by agreement between the two heads of state on 31st December 1985.In the case of costa Ricans and the Nicaraguans, the council said both nations should "avoid deployments of the armed forces or security forces in the area where their presence could generate tensions’’.

INTERFERENCE OF NATION STATES

From the Scenario, it’s quite obvious that by sending troops to the disputed area that Costa Rica has interfered and violated Nicaraguans Sovereignty.

States do not interfere in other nation state affairs for fun. They can however do so when there is a perception that the country in question is a threat that can only be addressed by said interference. The case of Israel, Gaza and international law illustrates when a state can’t be held to have interfered in another nation state’s affairs; British Foreign secretary David Miliband and development secretary Douglas Alexander recently alleged that Israel’s decision to respond to ongoing Palestine rocket attacks by limiting the supply of fuel to Gaza violated the international law. This isn’t a threat and cannot be termed to have been a violation of international law. Article 23 of the Fourth Geneva convention permits states like Israel to cut off fuel supplies and electricity to territories like Gaza. It only requires Israel to permit passage of food, clothing and medicines intended for Children under 15,expectant mothers and maternity cases.

There are cases whereby a nation state has interfered with another nation-state as Costa Ricans did-

US INTERFERENCE IN BOLIVIA

Significant evidence has been provided of the role of the United States [8] government in collaborating with this conspiracy to destabilise Bolivia. Just before the fascist violence which broke on the 9th of September last year, US ambassador to Bolivia, Philip Goldberg, publicly stated that the US should intervene on the side of the opposition.

There is also documented evidence that the US government has provided funding to opposition groups implicated in this latest wave of violence, just as documented evidence has revealed US funding of opposition groups that have sought to overthrow the elected government of Venezuela.

This comes alongside the refusal of the US to agree to the Bolivian government's request to extradite former president Gonzalo Sanchez de Lozada and former justice minister Carlos Sanchez Berzain for their roles in the massacre of more than 60 people in 2003 during protests against planned privatisation of Bolivia's gas industry.

Instead, Berzian was granted asylum in the US in July. It has been alleged that Berzian has helped coordinate the current violence.

It is only fair that the government of the United States should cease immediately its intervention into sovereign nations in Latin America and stop funding opposition groups inside Latin American nations.

US government should also extradite Gonzalo Sanchez de Lozada and Carlos Sanchez Berzain to face trial for their alleged crimes in Bolivia.

In contrast with the presented case, the US government has breached norms of sovereignty which are enshrined in the Charter of the United Nations, whose article 2(4) prohibits attacks on “political independence and territorial integrity," and whose Article 2(7) sharply restricts intervention and also the European convention on Human rights and article 1 of this treaty states that: Article 1 which is based on respecting rights simply binds the signatory parties to secure the rights under the other Articles of the Convention "within their jurisdiction". In exceptional cases, "jurisdiction" may not be confined to a Contracting State's own national territory; the obligation to secure Convention rights then also extends to foreign territory, such as occupied land in which the State exercises effective control.

CONCLUSION

The Nicaraguans and the costa Ricans should cease the dispute and go ahead with the provisional measures which has been laid down by the council as any further disruption will be breaching article 33(1) of the UN charter which states; The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of a, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice; they will also be breaching article 33(2) of the UN charter which states; The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means and finally if one of the member states disrupt the peace at the expense of the other member state then the affected state can sue under article 35(2) of the UN charter which states; A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter.