lunes, 11 de febrero de 2013
SAN JUAN RIVER AND COLORADO RIVER BETWEEN COSTA RICA AND NICARAGUA: A BRIEF HISTORICAL AND LEGAL ANALISIS
Picture 1: Article on San Juan River of 2012, published in l´Express. Picture 2: road parallel to San Juan river of 160 kilometers long built by Costa Rica, taken from an article of La Prensa Libre (Costa Rica) of 2011. Picture 3: frontpage of UICN book on "Governance of Shared Waters" (edited in Spanish in 2006) with a picture of a boat on San Juan river using the two flags
Last week, costarican officials and media referred to a new controversy with Nicaragua, this time related to Nicaragua´s pretention to navigate in Colorado river (see press note in La Nación and in the Tico Times ). The article of La Nación of Februart 4, 2013 that initiated the discussion among many others local media in Costa Rica and in Nicaragua is entitled " Managua formnaliza en La Haya reclamo para usar rio Colorado" includes the following sentence: "El reclamo se presentó desde agosto, pero autoridades costarricenses no reconocían hasta ahora la existencia de ese requerimiento de Nicaragua". The same day, the Minister of Foreign Affairs of Costa Rica gave an interesting interview to local radio (available here). The day after, in another interview given by the Minister of Foreign Affairs to Diario la Extra, we read that: " la ruta 1856 es nuestra mejor arma". On Februeaty 6, the editorial of La Nación concludes: "Hace bien la presidenta de la República en perseverar en pos de la terminación de la ruta, no obstante su alto costo político para la Administración".
Since 2005, this two States have met before ICJ for 3 different cases related to San Juan River, as remarked by some authors (See: Nicaragua and Costa Rica Return to the ICJ for 3rd Case over the San Juan River and our modest note The Rio San Juan and The Hague of February 23, 2012 (see Spanish version edited in elpais.cr on Februray 21, 2012). Analysts in France have used the expression "impossible apaisement" to refer to the situation between Costa Rica and Nicaragua while other authors refer to October 2010 crisis as the first diplomatic crisis due to Google error (see: About Costa Rica, Nicaragua, their mutual border, and Google).
AN INUSUAL COMPLEXITY
The complexity of the situation for this two riparian States in order to manage adequatly their relations with respect to San Juan river doesn´t come exclusively from the limitations of the treaty of 1858 (mainly with regard to environmental and other contemporary issues), or only from political reasons, but also from ver peculiar geographical elements. In order to give a better understanding of this controversy, we must recall some characteristics of San Juan river and mouth: as stated by International Court of Justice (ICJ) in its first 2009 decision between Costa Rica and Nicaragua, "The San Juan river runs approximately 205 km from Lake Nicaragua to the Caribbean Sea. 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".
Additionnally, 3 aspects must be taken into consideration:
1- in its very first section, since leaving the Lake Nicaragua, both banks of San Juan river are subject to one State´s jurisdiction (Nicaragua).
, 2 - from a point known as the Triela (in Nicaragua) or San Isidro, (Costa Rica side), each of the two banks is subject to the jurisdiction of each of the riparian States. With one important detail: in the river area itself, ending in San Juan del Norte, Nicaragua is the State exercising its "exclusive jurisdiction", due to the delimitation technique agreed in 1858 (the single riverbank technnique) also used for international rivers such as the Shatt-el-Arab (Iran / Iraq), Amour (Russia / China), the rivers Tinto and Motagua (Guatemala / Honduras) or the Senegal river (Senegal / Mauritania), San Pedro and Tendo rivers (between Senegal and Gambia) or the river Odong (Malaysia / Indonesia) instead of the the median line or thalweg technniques - deeper fairway- used, for example, in the treaty referring to Sixaola river (Echandi Montero-Fernández Jaén treaty of 1941 between Costa Rica and Panama).
3 - In the final section of the San Juan River, as a result of a natural process, there is a very particular situation: a) the main flow of the San Juan flows into a river that enters exclusively in the territory of Costa Rica, the Colorado River, which relies heavily the Tortuguero channels and wetlands of the Northern Zone of Costa Rica. b) while a small part of the flow of the San Juan flows in the direction of the bay of San Juan del Norte: this branch is considered as the boundary line in the treaty of 1858.
AN UNRESOLVED QUALIFICATION:
This geographical details of the Rio San Juan aforementioned entails for both riparian States a harder degree of difficulty than those faced by other riparian States in the management of international rivers. With respect to this last expression, it has to be noted that the during their dispute before ICJ at The Hague in relation to the rights of navigation, the San Juan qualification as a "national river" or an "international river" remained unresolved by ICJ judges, despite the intensive efforts made by both States. In its decision rendered on july 2009, we read (paragraph 34) that: "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".
From the most recent nomenclature of public international law, that no longer considers the river, but the hydrographic system as a whole, the San Juan River can be considered as an “international watercourse” : this is not a gratuitous assertion, but an application of the definition given by 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses signed in New York in December 1997. Art. 2) states that: (a) "Watercourse" means a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus; (b) "International watercourse" means a watercourse, parts of which are situated in different States"
From this perspective, there are several implications of dredging the San Juan River which, since 2010, Nicaragua has proceeded to try to recover in what officially is called the "historic flow", and that has opened from October 2010 a new period of "sanjuanización" in the complex relations between Costa Rica and Nicaragua.
A VERY OLD CHANGE IN THE MOUTH OF SAN JUAN RIVER:
A natural process of profound changes after the middle of 19th century , dragged to the river San Juan a lot of sediment in its terminal part. An article published in Nicaragua on 12/12/2010 in a digital media called “Confidential” referred to a travel journal of archeologist and ethnologist Ephraim G. Squier in the summer of 1848 (see article): this journal already indicated the difficulty to navigate in summer and the importance of flow in the Colorado River over which empties into San Juan del Norte (Note 3). Years later, the Webster-Crampton treaty between the United States and United Kingdom of April 30, 1852 recommended (Article III) that the border between Costa Rica and Nicaragua "will begin on the southern bank of the Colorado River," possibly because of flow and depth measurements made by both powers interested in building the future inter-oceanic canal. We also show that the Costa Rican diplomat Pedro Perez Zeledon reported in his work of 1887 (Reply to plea the question of validity or invalidity of the treaty of limits to be decided as arbitrator the President of the United States of America, 1897, Annex 7), dams built by Nicaragua in the early 1860s to try to maintain the water level. Prior to that, a preliminary technical report of 1859 indicates that "between the birth of the Colorado River and the port of Greytown, navigation was impossible to be the depth of fifty to sixty centimeters (according to historian Luis Fernando Sibaja, Del Cañas-Jerez the Chamorro-Bryan, MJCD, 2009, p.57). This "freak of nature" tried to be resolved diplomatically by reviewing the Cañas-Jerez Treaty of 1858: the treaty of July 13, 1868 on "improving one of the Colorado and San Juan", the Convention Esquivel-Rivas of December 21, 1868 - in which Costa Rica granted Colorado River waters diverted to Nicaragua, and "to obtain the restoration or improvement of the port of San Juan de Nicaragua" (Art. 1), and the treaty of June 2, 1869 in the same sense. On February 5, 1883 a new treaty was signed, and this time, Costa Rica agreed that the border with Nicaragua begins in the mouth of the Rio Colorado (art. 1), confirming the treaty inter-oceanic canal January 19, 1884 (Article V). These five treaties adopted in a period of time of 20 years between Costa Rica and Nicaragua on the river border had no effect due to the lack of approval of the Costa rican Congress and the treaty signed in 1858 remained applicable.
ARBITRATION AWARDS OF PRESIDENT G. CLEVELAND (1888) AND E. ALEXANDER (1897-1900):
Nicaragua then decided to argue the invalidity of the 1858 Cañas-Jerez and both countries submitted the matter to arbitration of President Grover Cleveland. If we read the 11 "points of doubtful interpretation" submitted by Nicaragua to arbitration in 1886, we will see that point 1 and 7 show both the deep concern of Nicaragua suffered by variations in the main mouth. In its decision in 1888, the Cleveland arbitrator keeps intact the 1858 treaty in its entirety. We read, point 1, that:" 1.The boundary line between the Republics of Costa Rica and Nicaragua, on the Atlantic side, begins at the extremity of Punta de Castilla at the mouth of the San Juan de Nicaragua River, as they both existed on the 15th day of April 1858. The ownership of any accretion to said Punta de Castilla is to be governed by the laws applicable to that subject ". An point 7 that: "7. The branch of the River San Juan known as the Colorado River must not be considered as the boundary between the Republics of Costa Rica and Nicaragua in any part of its course". (see full text of the decision of 1888 rendered by President Grover Cleveland, pp. 208-211) The arbitrator specified the skills that both countries share in the work of improving the waters of San Juan. At Point 6, Cleveland specified that "6. The Republic of Costa Rica cannot prevent the Republic of Nicaragua from executing at her own expense and within her own territory such works of improvement, provided such works of improvement do not result in the occupation or flooding or damage of Costa Rica territory, or in the destruction or serious impairment of the navigation of the said River or any of its branches at any point where Costa Rica is entitled to navigate the same. The Republic of Costa Rica has the right to demand indemnification for any places belonging to her on the right bank of the River San Juan which may be occupied without her consent, and for any lands on the same bank which may be flooded or damaged in any other way in consequence of works of improvement". Following the Cleveland Award, a boundary commission was established to demarcate the boundary line and an engineer, Mr. Edward Alexander, was charged with the task of resolving as arbitrator any discussion 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. When initiating discussions on the location of the starting point of the border by both national demarcation commissions in 1897, Nicaragua again officially submits to E. Alexander that Nicaragua "not only recognizes as San Juan River branch draining into the bay called San Juan del Norte / … / The San Juan comprises all branchss. This has three branches that are Colorado, Taura and an emptying one into the Bay of San Juan del Norte "(Case of the Nicaraguan Commission, responding to the presentation by the Commission on Limits of Costa Rica, San Jose, Tipografia Nacional, 1897, p. 26). This attempt to bring the border line to "freak of nature" beforementioned is not accepted by E. Alexander, who emphatically stated that "it is also imposible to conceive that Costa Rica should have accepted the Taura as her boundary and that Nicaragua´s representative should have entirely failed to have the name Taura appear anywhere in the treaty"( Sept 30 1897 decision of E. Alexander, see full text), setting the start of the border in Punta Castilla. Anticipating probable future discussion, both demarcation commissions decided to set 40 points and to illustrate with a map tracing the border Line in this area (see map on p. 32 of Acta V, Comisión de Demarcación, 1900), which, since 1897, has been used on official maps of both sides of the river.
This brief historical review shows the ongoing concern that has generated over the history of Nicaragua the Rio San Juan terminal configuration. The discussion originated recently in Costa Rica in relation to a claim of Nicaragua, included in the countermemorial presented by Nicaragua to the International Court of Justice in August 2012 (and released to media by the Ministry of Foreign Affairs of Costa Rica in February 2013) is another evidence of this constant concern in diplomatic relations between the two countries since the middle of last century in relation to the Rio Colorado.
The recent discussion between Costa Rica and Nicaragua on Colorado river took place this time from the publication of a claim included in the written countermemorial (and not a public document) sent by Nicaragua to ICJ in August 2012 (in relation to the application of Costa Rica against Nicaragua dredging and illegal occupation of Costa Rican territory occurred in October 2010): this document of Nicaragua has to be answered by Costa Rica in accordance with the procedural rules set forth before ICJ. Usually, written pleadings only circulate among the ICJ and the Parties, and they are not available to public until they are made public by ICJ at hthe following stage of the proceedings: the oral heraings (which are public) It would be extremely interesting to know what were the reasons for making this Nicaraguayan pretention over Colorado river known publicly six months later by Costa Rica ´s authorities; and, by the way, to assess how productive may be for one of the Parties in proceedings before ICJ to refer publicly (in its national press and before its public opinion) to opponent's claims at this stage of the proceedings.
Note: the present note has been published in Spanish in www.elpais.cr, edition of February 13, 2013 and in Informatico (ediction of February 14, 2013)
Publicado por Curso de Derecho Internacional. Costa Rica en 10:16