INTERNATIONAL COURT OF JUSTICE DISPUTE CONCERNING NAVIGATIONAL AND RELATED RIGHTS (COSTA RICA v. NICARAGUA) MEMORIAL OF COSTA RICA VOLUME 1 29 August 2006 TABLE OF CONTENTS Page No Chapter 1 Introduction .................................. 1 Scope of the Dispute ............................ 1 The Court's Jurisdiction .......................... 3 The Structure of this Memorial .................... 4 Chapter 2 Geographical and Historical Background .......... 7 A . The geography of the San Juan basin ............... 7 B . Historical background ........................... 9 (1) The San Juan River under Spanish rule (1492-1821) .............................. 9 (2) The post-independence period (1 82 1. 1 856) ..... 11 (a) The proposed trans-Isthmian canal ....... 12 (b) The British protectorate over the Mosquito Indians .................. 12 (c) Agreements between Great Britain and the United States ............ 14 (d) Conflicts arising from the intervention of the filibusters ............ 14 (3) The conclusion of the Treaty of Limits 1858 ..... 15 (4) Nicaragua's challenge to the Treaty of Limits and the Cleveland Award 1888 ......... 16 (5) Implementation of the Treaty of Limits after 1888: the Alexander Awards ............ 20 (6) The 1916 Judgment of the Central American Court of Justice .................. 21 (7) Later developments ........................ 25 Chapter 3 The Dispute before the Court .................... 27 A . Overview ...................................27 B . Nicaragua's violations of Costa Rica's sights between1980and1998 .......................... 27 Nicaragua's violations from 1998 to the present ....... 33 Attempts by Costa Rica to resolve the dispute ........ 37 (1) Commerce as communication ................1 19 (2) Commerce as transportation of goods and persons (including tourism) ..............123 D . Breaches of Costa Rica's rights of protection of commerce. safeguard. defence and re-supply of police posts .................................124 E . Breaches of other Related Rights .................. 132 (1) The right to land at any part of the Nicaraguan bank of the River where navigation is common . 133 (2) Facilitation of traffic on the River ............133 (3) Customary right to fish in favour of residents of the Costa Rican bank ....................134 F. Conclusions ...................................135 Chapter 6 The Remedies sought by Costa Rica ..............137 A . Introduction ...................................137 B . Declaration of violations of Nicaragua's obligations ... 137 C. Cessation of continuing internationally . wrongful conduct ...............................139 D . Full Reparation ................................140 (1) Restitution ...............................141 (2) Compensation ............................141 E . Assurances and guarantees of non-repetition ......... 143 F. Conclusions ...................................144 Submissions ..............................................147 Appendix A The status of the San Juan River in international law .............................. 149 I . The San Juan is an international river ............... 149 I1 . General international law concerning navigational rights on international waterways and its relation to the dispute ..................................155 111 . Conclusions ...................................157 Appendix B The Revenue Guard: Creation and Development ... 159 List of Annexes Volume 2: Agreements. Awards and Judicial Decisions .... 173 Volume 3: Diplomatic Correspondence ................. 179 Volume 4: AEdavits ................................187 Volume 5: Press Reports .............................191 Volume 6: Other Documents .........................199 Chapter 1 Introduction A. Scope of the Dispute 1.01. The present proceedings were commenced by an Application which was filed with the Registry on 29 September 2005. They concern breaches by Nicaragua of Costa Rica's rights of navigation and related rights in respect of the San Juan River (hereafter "the San Juan"). These rights are set out in a series of treaties and decisions commencing with the Treaty of Limits of 15 I April 1858 ("the Treaty of Limits"),l 1.02. Costa Rica is a Central American Republic bounded on the north by Nicaragua and on the south by Panama. The territorial scope of the present dispute concerns that part of the boundary between Costa Rica and Nicaragua that follows the course of the San Jum. It is shown on Sketch Map 1, opposite. I 1.03. The San Juan is a major river which flows from Lake Nicaragua in a generally easterly direction to the Caribbean Sea, a length of about 205 kilometres. For much of that distance (from below Castillo Viejo until near its mouth) the southern or right bank of the River constitutes the boundary between the two States. 1.04. The present boundary between Costa Rica and Nicaragua was first established by the Treaty of Limits. It left the waters of the Sari Juan within Nicaragua, but at the same time the Parties expressly recognised important Costa Rican rights of use of the River, in particular perpetual rights of free navigation of boats and passengers sailing to or from Costa Rica for commercial purposes. The validity of the Treaty of Limits was subsequently challenged by Nicaragua and was upheld in an arbitral award issued by the Costa R~CRand Nicaragua, Trcaty of Lirnlts, San lose, 15 April 1858 (sometimes referred to ac the CsAas-Jcrkz Treaty). In this Memonal, unless otherwise ind~cated,the English translation of the Treaty of Llmits which will be used is the one submitted by Costa K~cato Presrdent Cleveland: sec Annexes, Vol 2, Annex 7(b). Thc authoritative Spanish text is st Annexes, Vol 2, Annex 7(a) Also annexed arc the translat~on aubmltted to President Cleveland by N~caragua:Annexes, Vol2, Annex 7(c), and a tnnslationpublishcd In British and Fore~gn State Papers Annexes, Vol2, Annex 7(d). President of the United States of America, Grover Cleveland, on 22 March 1888 ("the Cleveland Awardm).2 At the same time the Cleveland Award confirmed and authoritatively interpreted the extent of Costa Rican rights of use of the River. These rights were further specified (with the force of res judicata) by the Central American Court of Justice in its judgment of 13 September 19 16 in the case Costa Rica v. Nicaragua rthe 1916 Judgmentm)3 and they were supplemented in the Agreement pursuant to Article TV of the Pact of Amity, Washington, D.C., 9 January 1 956 ("the 1956 Agreement"), in particular articles 1 and 2.4 1.05. Costa Rica's rights of navigation on the River were and remain of considerable significance. The area contains national parks and forest reserves on both sides of the River. There are few roads, and none which proceed to the Caribbean coast in an east-west direction. The normal method of transport is by boat; this includes public transport, local traffic by riparians going to market or to school, and transport for the growing tourist industry. In short, the San Juan is for many purposes the only road. 1.06. Since the 1990s Nicaragua has imposed and maintained important restrictions on the navigation of Costa Rican boats and their passengers on the San Juan, restrictions tending to deny the substance of Costa Rica's rights entirely. These include the following: (a) the imposition of charges on Costa Rican boats and their passengers; (b) the obligation to stop successively at each Nicaraguan military post on the Nicaraguan bank of the River to report the names of the passengers and to obtain authorisation to navigate or, as the case may be, to continue to navigate, on the River; (c) the prohibition imposed by Nicaraguan authorities on Costa Rican police personnel and their boats to navigate the San Juan River, with or without their service weapons (armas de reglamento); 2 The Award was givcn in Engl~hh:see Papers rclating to the Foreign Rclatlons orthe United Statcs, 18891I: 456-9: Annexes, Vol 2, Annex 16. 3 English translation published in (1917) 1 1 AJIL 181. Annexes. Vol 2, Annex 2 1 4 1465 Untted Natlons Treaty Series 233: Annexes. Vol 2, Annex 24. (d) the imposition of timetables for navigation on the River; (ej the obligation to use the Nicaraguan flag as a precondition for navigating on the River; (f) limitations to free moorage along the banks of the River; and (g) other limitations to expeditious transit on the River. 1.07. Since the Application was filed, Nicaragua has tightened existing restrictions on the use of the River and imposed new ones, in particular requiring a passport and (for Costa Ricans) a visa, and prohibiting Costa Rican riparians from fishing in the River. 1.08. In these proceedings Costa Rica seeks, in particular, the cessation of all Nicaraguan conduct which prevents the free and full exercise and enjoyment of the rights that Costa Rica possesses on the San Juan, and which also prevents Costa Rica from fulfilling its responsibilities to guard and protect the River under article 1V of the Treaty of Limits and article 2 of the 1 956 Agreement and otherwise, B. The Court's Jurisdiction 1.09. The Court has jurisdiction over the present dispute in accordance with the provisions of article 36, paragraph 2, of its Statute, by virtue of the operation of the following: (a) the declarations of acceptance made respectively by the Republic of Costa Rica dated 29 February 1973, and by the Republic of Nicaragua dated 24 September 1929; (b) the Tovar-Caldera Agreement, Alajuela, 26 September 2002.5 1.10. The Court also has jurisdiction over the present dispute in accordance with the