PUBLIC INTERNATIONAL

Table of Contents

LAW
PROJECT:
Land Boundary in the Northern
Part of Isla Portillos

Submitted by: Samewanhi Submitted to:

Roll No. : 18158 Dr. Sukhvinder Virk

Group No. :4 Assistant Professor of

Law
 Contents

1. Introduction

1.1 Rationale

1.2 Method

1.3 Sources

2. International Law

2.1 Definition

2.2 Development

3. International Court of Justice

3.1 Composition

3.2 Jurisdiction

4. Land Boundary in the Northern Part of Isla Portillos

4.1 Overview of the case

4.2 History Proceedings of the Case

4.3 Application of the Provisional Measures

4.4 Plausible character

4.5 Previous Disputes resolved by the ICJ

4.6 Application of Burkina Faso v. Mali on the presented Case

4.7 Interference of Nation States

5. Conclusion

6. Bibliography
1. Introduction

1.1 Rationale

The topic for this project, which is the Land Boundary in the Northern of
Isla Portillos,, is an interesting one. I have referred the website of the
International Court of Justice and few articles for this project. The dispute is
between Costa Rica v. Nicaragua.

1.2 Method

The method use in this project is Basic, Pure and Fundamental Research.
This research has been conducted for the enhancement of knowledge and to
learn about International Law. The main objective of this project is to
expand one’s knowledge in the field of international law.

1.3 Sources

The sources used in this are project are: website of the International Court of
Justice, Articles from JSTOR and various other web sites.
2. International Law

2.1 Definition

The term international law has been defined in a variety of ways by different
jurists. Some of the definitions may be given as under:

1.  By Oppenheim: – “Law of Nations or international law is the name for

the body of customary law and conventional rules which are considered
binding by civilized states in their intercourse with each other.”

2.  By Alf Ross: – Alf Rose defines the term international law as under:
“International law is the body of legal rules binding upon states in their
relations with one another.”

3.  By Lawrence: – According to him, “international law is the rules which

determines the conduct of the general body of civilized state in their
mutual dealings.”

4.  Modern Definition: – International law has always been in a continuous

state of change. In modern period the term International law may rightly
be defined as under; “That body of legal rules which regulates the
relationship of the Nation States with each other, as well as, their
relationship with other International actors.” Beside the above definitions
there are at least forty well definitions of international law.
3. International Court of Justice

The International Court of Justice (ICJ) sometimes called the World Court,

is the principal judicial organ of the United Nations (U.N.). It settles legal
disputes submitted by states and gives advisory opinions on legal issues
referred by authorized U.N. organs and specialized agencies. Through its
opinions and rulings, the ICJ also serves as a source of international law.

3.1 Composition

The ICJ is composed of 15 permanent judges elected by the UN General

Assembly and the UN Security Council from a list of persons nominated by
the national groups in the Permanent Court of Arbitration. The election
process is set out in Articles 4-12 of the ICJ statute. Judges serve for nine
year terms and may be re-elected. Elections take place every three years,
with one-third of judges retiring each time, in order to ensure continuity
within the court.

Article 2 of the Statute provides that all judges should be "elected regardless
of their nationality among persons of high moral character", who are either
qualified for the highest judicial office in their home states or known as
lawyers with sufficient competence in international law. Judicial
independence is dealt specifically with in Articles 16-18. Judges of the ICJ
are not able to hold any other post, nor act as counsel. A judge can be
dismissed by only a unanimous vote of other members of the Court. Despite
these provisions, the independence of ICJ judges has been questioned. For
example, during the Nicaragua Case, the USA issued a communiqué
suggesting that it could not present sensitive material to the Court because of
the presence of judges from Eastern bloc states.
Judges may deliver joint judgments or give their own separate opinions.
Decisions and Advisory Opinions are by majority and, in the event of an
equal division, the President's vote becomes decisive. Judges may also
deliver separate dissenting opinions.

3.2 Jurisdiction
The International Court of Justice acts as a world court. The Court’s
jurisdiction is twofold: it decides, in accordance with international law,
disputes of a legal nature that are submitted to it by States (jurisdiction in
contentious cases); and it gives advisory opinions on legal questions at the
request of the organs of the United Nations, specialized agencies or one
related organization authorized to make such a request (advisory
jurisdiction).

Broadly speaking there are two kinds of jurisdiction of the

Court  – Contentious Jurisdiction, and Advisory Jurisdiction.

Contentious Jurisdiction: – That jurisdiction of the Court on

the basis of which the Court decides any case with the consent
of the parties to the case, is called ‘Contentious Jurisdiction.’ It
is fundamental principle of international law that without the
consent of any party to a case, the same shall not be referred
to mediation or arbitration. The same rule is, with some
restriction, is applicable to the jurisdiction of the Court. In other
words, the Court is not entitled to initiate any proceeding
merely because one party files a case, rather the consent of
both the parties are necessary that dependent is also required
to give consent to the case. Contentious Jurisdiction is of three
kinds which may be given as under:  a.Voluntary Jurisdiction.    
b. Ad hoc Jurisdiction.  c. Compulsory Jurisdiction.
i). Voluntary Jurisdiction: – That jurisdiction which the
parties by virtue of an agreement or treaty confer on Court is
called Voluntary Jurisdiction. In other words, when the parties
to a treaty or a contract stipulate that if any dispute arise in
respect of such treaty or contract the dispute shall be referred
to the Court for settlement, this type of jurisdiction of the Court
is said to voluntary jurisdiction. So, in voluntary jurisdiction the
parties to a dispute give their assent for the jurisdiction of the
Court in advance.

ii). Ad hoc Jurisdiction: – That jurisdiction of the Court when

the parties, after the occurrence of the dispute, confers on
Court and in which the Court has no right to take up the case,
is said to be Ad hoc Jurisdiction.

iii). Compulsory Jurisdiction: –Compulsory Jurisdiction

means that type of jurisdiction which the Court enjoys without
the consent of the parties. In classic international law there is
no concept of the Compulsory Jurisdiction of the Court, but
recently it has been contended that no the time has reached to
confide the Court with compulsory jurisdiction. In case of
Compulsory Jurisdiction, the Court is to be empowered to take
up a case with out the consent of the parties like municipal
Courts. But once again, the application of the Compulsory
Jurisdiction at universal level, depends on the approval of the
Nation States. The procedure for the Compulsory Jurisdiction of
the Court has also been laid down.

Advisory Jurisdiction: – Advisory Jurisdiction means that the

jurisdiction of the Court by which it may only give an advisory
opinion on a question of law. This does not require the consent
of the parties to a case but when any International Institute
(General Assembly or Security Council) ask the Court to give
an advisory opinion on the question. This opinion is not binding
on the parties. So, the case may be referred by an
international organization or by any organs within the scope of
their activities.
4. LAND BOUNDARY IN THE NORTHERN PART OF ISLA
PORTILLOS (COSTA RICA V. NICARAGUA)

4.1 OVERVIEW OF THE CASE

On 25 February 2014, Costa Rica instituted proceedings against Nicaragua

with regard to a “dispute concerning maritime delimitation in the Caribbean
Sea and the Pacific Ocean”. Noting that the two States had exhausted
diplomatic means to resolve their maritime boundary disputes, Costa Rica
requested the Court to determine the complete course of a single maritime
boundary between all the maritime areas appertaining, respectively, to Costa
Rica and to Nicaragua in the Caribbean Sea and in the Pacific Ocean, on the
basis of international law. It considered that their coasts generate
overlapping entitlements to areas on either side of the isthmus.

By an Order of 31 May 2016, the Court decided to arrange for an expert

opinion to help establish factual matters relevant for the purpose of settling
the dispute submitted to it. By an Order of 16 June 2016, it appointed Mr.
Eric Fouache and Mr. Francisco Gutiérrez as the two independent experts,
whose task was to determine the state of the coast between the point
suggested by Costa Rica and the point suggested by Nicaragua in their
pleadings as the starting-point of the maritime boundary in the Caribbean
Sea.

In view of the claims made by Costa Rica in the case concerning the Land
Boundary in the Northern Part of Isla Portillos (Costa Rica v.
Nicaragua) and the close link between those claims and certain aspects of
the dispute in the case concerning Maritime Delimitation in the Caribbean
Sea and the Pacific Ocean (Costa Rica v. Nicaragua), by an Order of 2
February 2017, the Court joined the two proceedings.

After holding hearings on the merits of the joined cases from 3 to 13 July
2017, the Court delivered its Judgment in the joined cases on 2 February
2018 in which it, inter alia, determined the course of the single maritime
boundaries between Costa Rica and Nicaragua in the Caribbean Sea and the
Pacific Ocean. In particular, it decided that the maritime boundary between
the two States in the Caribbean Sea shall follow the course set out in
paragraphs 106 and 158 of the Judgment, and that the maritime boundary
between Costa Rica and Nicaragua in the Pacific Ocean shall follow the
course set out in paragraphs 175 and 201 of the Judgment.

4.2 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.

4.3 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.

4.4 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 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.

4.5 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  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.

ICJ RULING ON CAMEROON V NIGERIA 1993

The case concerns the land and maritime boundary between Cameroon and
Nigeria. The ICJ 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.

4.6 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 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’’.

4.7 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-
5. 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.
6. BIBLIOGRAPHY

6.1 Websites

a) https://www.icj-cij.org/en/case/165

b) https://www.legalbites.in/composition-jurisdictions-international-court-justice/

c) http://opil.ouplaw.com/view/10.1093/law-icgj/516icj17.case.1/law-icgj-516icj17

6.2 Articles

a) Introductory note to the International Court of Justice: Dispute

Regarding Navigational and related Rights (Costa Rica v. Nicaragua),
Nienke Grossman, International Legal Materials, Vol. 48, 2009

b) Dispute Regarding navigational and Related Rights (Costa Rica v.

Nicaragua), Coalter G. Lathrop, The American Journal of International
Work, Vol. 104, July 2010