San José, Costa Rica, since 1956

World court to hear border row

Costa Rican officials are confident the International Court of Justice at The Hague will rule on their behalf next month in the dispute over Nicaragua’s alleged occupation of Costa Rica’s Isla Calero.

But what will happen if Costa Rica loses the case?

“The Hague is the final resource that exists for Costa Rica to be able to resolve this issue,” said Antonio Barrios, an international relations professor at Costa Rica’s National University.

“We’ve already taken every other diplomatic step to resolve the problem and we still haven’t been able to stop the Nicaraguans from damaging the area,” he said. “If we don’t win the case at The Hague, there are no other resources.”

The case at The Hague is scheduled to begin Jan. 11 and last for two days.

The border dispute between Nicaragua, country whose leader is increasingly authoritarian, Costa Rica, a nation known for its pacifism, has already been presented twice before the Organization of American States (OAS), to little effect. The 35-member OAS voted 22-2 agaainst Nicaragua’s presence of troops on the disputed land along the Caribbean coast. But the troops are still in the area and the environmental damage caused by the ongoing construction of an artificial river channel continues.

The sentiment among most Costa Ricans is that the law is on their side. But the world court’s decisions will rest more on its interpretation of a 19th century treaty than on Ticos’ public opinion. The fact that the world community increasingly looks upon Nicaraguan President Daniel Ortega’s dictatorial policies with disdain might not have any bearing whatsoever on the case, analysts say.

Interpreting the Cañas-Jerez Treaty of 1858 will be a tricky task for the court.

Nicaragua’s claim to the area is based partially on the Caño Sucio, a small tributary that branches off the Río San Juan into Nicaragua. The land north of Caño Sucio, an area called Harbour Head, belongs to Nicaragua, officials from that country say.

Nicaragua also claims that the Río San Juan has changed course over time, and that the original mouth of the river was at Punta de Castilla, on the Caribbean coast. If the world court agrees, the northern tip of Isla Calero could be declared Nicaraguan territory – even though Nicaragua says it’s a separate island, and not part of Isla Calero, which Nicaragua says it has no claim to.

That decision would be a stunning blow to Costa Ricans, and an incredible political victory for Ortega and his Sandista administration.

Costa Rica will tell the court that Nicaragua’s occupation of Isla Calero is an “invasion,” and will argue that Nicaragua has violated Costa Rica’s national sovereignty.

Presenting the case to the world court will also be costly. An estimate by Costa Rica’s Foreign Ministry put the price tag of taking a case to the world court at $2 million per year, but that figure may be exaggerated. However, some experts believe the Isla Calero case could drag on for years.

Last week, OAS Secretary General José Miguel Insulza presented pictures taken by OAS representatives in late November that provide evidence of further land changes at Isla Calero. Nicaraguan crews have cut down trees and etched a water channel from the Laguna de los Portillos to the Río San Juan.

One overhead photo shows a long, canal-shaped deforested swath of land that is gradually filling with rain and seawater.

“You can see in the photos that they have already connected the canal from the Laguna de los Portillos to the Río San Juan,” said Allan Astorga, a University of Costa Rica geologist who is studying the potential environmental impact of the canal. “It is small now, but with more rain, it is only going to get wider and deeper. The damage has been done and will only get worse. The area will never be restored to be as it was originally.”

This is not the first time the two neighboring countries have met at The Hague to settle a dispute. In 2009, the court ruled on Costa Rica’s rights to navigate the San Juan, which forms the border between the two countries. That case took four years to resolve and cost $1.6 million.

“The unfortunate truth is that there are many more important cases that take priority over this conflict,” UNA’s Barrios said. “I’m not trying to be pessimistic, just realistic. Unfortunately, there are more pressing cases than the Nicaraguan occupation of the Isla Calero.”

Meanwhile, Nicaragua seems to be preparing an alternative strategy. On Tuesday, Sandinista lawmakers and their allies approved a package of national defense and security laws that will further militarize the country, especially the border region around the San Juan River (see separate story in The Nica Times, Page N1).

Ortega’s military bolstering has not interrupted Costa Rica’s pursuit of diplomatic dialogue. Even the World Court’s previous ruling seems to indicate Costa Rica has the advantage.

“The case for Costa Rica is solid,” said Nuria Marín, a lawyer and international policy expert at the University of Costa Rica. “In addition to the support of the OAS, an impartial body, the world court previously ruled that maps of the San Juan River from both countries coincided that Isla Calero is Costa Rican property. Now Nicaragua will [likely] present a new map to the court.”

Compliance is another issue.

“There is nothing the court can effectively do to make a country comply with the ruling,” Barrios said. “In the past, some countries have ignored rulings, others have not. If Nicaragua chose to ignore the ruling, the only other judicial step that can be taken is going to the United Nations Security Council.”

Several countries have ignored world court rulings, including the United States. In 1984, the court ruled against the U.S. government and in favor or Nicaragua over U.S.’ illegal war on Nicaragua. The United States was ordered to pay reparations, but never did. Ortega continues to demand payment until this day.

Costa Rica’s other international option is to take the issue to the UN Security Council. Ignoring a resolution there can result in trade sanctions and other measures.

“We will still pursue diplomatic dialogue with Nicaragua as a means to pressure them into finding a resolution,” Marín said.

“I advised President [Laura] Chinchilla to also apply pressure through allies that exist in both countries, including those that have companies and environmental organizations in Nicaragua, such as the Netherlands,” she said.

Currently, 14 cases are pending in The Hague and priority is given to those filed first.

Chinchilla, meanwhile, continues to press for peace. At Costa Rica’s annual Festival of Lights last weekend, she said her primary goal for 2011 is to restore national peace.

“We will continue to look for a way to restore peace and calm, and take whatever steps necessary to do so in 2011,” she said.

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