Although both Costa Rica and Nicaragua are claiming victory in a decision handed down by the International Court of Justice Tuesday, the action is only temporary and the case has not been decided on its merits.
The standard that the court used in making its decision was plausibility, being worth of belief. “. . . the court needs only to decide whether the rights claimed by the applicant on the merits, and for which it is seeking protection, are plausible,” the judicial panel said in defining its jurisdiction in the case.
Costa Rica presented a plausible case that the disputed territory belongs to it. But the judges were not asked to determine the plausibility of Nicaragua ownership, so it did not, according to the court decision.
“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 kilometers between the right bank of the disputed caño, 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,” the decision said.
Without determining which nation owns the disputed territory, the court ordered both nations to withdraw all police and soldiers. Costa Rica had no such personnel on the disputed territory, and Nicaragua told the court that all of its soldiers and workmen had been withdrawn.
So the court ratified the current conditions without making any decision on the major question of ownership.
The court declined to forbid dredging by Nicaragua on the Río San Juan, in part because that is clearly its territory and in part because Costa Rica did not make an overwhelming case that dredging would damage the flow into its undisputed territory.
The caño is the ditch Nicaraguan workers dug that is expected to become a new mouth for the Río San Juan. The new mouth will provide better access to the river and enhance the tourism potential of the undeveloped area.
The ditch is finished project, and locals are aware that flooding by the river will widen and deepen the ditch into a navigable channel.
Costa Rica made much of the environmental damage Nicaraguans inflicted on the territory. Trees were cut, and dirt was moved. Nicaragua asserted that the cleaning and clearing operations in respect of the caño were over and finished, the court said.
Costa Rica can claim a degree of victory in the decision’s environmental aspect. It said:
Having observed that, in the disputed border area, Costa Rica and Nicaragua have respectively designated, under the Ramsar Convention, the “Humedal Caribe Noreste” and the “Refugio de Vida Silvestre Río San Juan” as wetlands of international importance, the court considers that, pending delivery of the judgment on the merits, Costa Rica must be in a position to avoid irreparable prejudice being caused to that part of the “Humedal Caribe Noreste” wetland where the disputed territory is situated. It finds that, for this purpose, Costa Rica must be able to dispatch civilian personnel charged with the protection of the environment to the said territory, including the caño, but only in so far as it is necessary to ensure that no such prejudice be caused. It adds that Costa Rica must consult with the Secretariat of the Ramsar Convention in regard to these actions, give Nicaragua prior notice of them and use its best endeavors to find common solutions with Nicaragua in this respect.”
Ramsar refers to the 1971 Convention on Wetlands that was signed in the Iranian city of that name. The decision gives Costa Rica the right to take steps to prevent pending damage, but the degree appears to be limited by interjecting another international body into the mix. The Ramsar secretariate appears to have a voice. Officials from that office already have inspected the land from the air.
Laura Chinchilla, Costa Rican president said Tuesday that she would consult with the secretariat to set up a mission to visit the disputed territory. She called the decision a conclusive victory, but in Managua Nicaraguan President Daniel Ortega said pretty much the same thing. Nicaraguan newspapers are reporting the right to continue dredging as a victory for that country.
Ms. Chinchilla also said that she would consider negotiating with Nicaragua once it was clear the country had taken steps to follow the dictates of the decision.
The real winners in the decision Tuesday appear to be the lawyers who will be disputing this case for years at The Hague and Nicaraguan soldiers who will not be living on the mosquito infested territory.
Nicaragua kicked off the dispute in October when soldiers and workmen began dredging the river and dumping the sediment on Costa Rican territory. Then it became clear that Nicaragua was digging some form of channel that would intersect environmentally sensitive lagoons. Costa Rica reinforced the border but declined to take any offensive action.
Nicaragua claimed that one reason its troops were there was to stop drug trafficking. Costa Rica has generally ignored the area which is remote and part of a reserve. In the decision the judges said that both countries could keep watch for lawlessness without entering the disputed territory.