ABSTRACT
Costa Rica and Nicaragua both gained independence from Spanish colonial rule in 1821. Shortly after independence, Costa Rica and Nicaragua, together with El Salvador, Guatemala and Honduras decided to establish the Federal Republic of Central America. The Federal Republic of Central America would be a short-lived union: it soon encountered insurmountable problems and was dissolved in 1839 after Costa Rica and Nicaragua had seceded as independent states in the previous year. A period of instability followed in Nicaragua. During the mid-1850s, war broke out between Costa Rica and Nicaragua. At the termination of hostilities, the two countries resolved to settle outstanding bilateral matters, relating, inter alia, to their common boundary, to the navigational regime on the San Juan River and to the possibility of building an inter-oceanic canal across the Central American isthmus. After two failed attempts in 1857, Costa Rica and Nicaragua, through the mediation of the Salvadoran Foreign Minister, finally concluded an agreement by entering into the 1858 Treaty of Territorial Limits (Treaty of Limits).1 Thus, the Treaty of Limits established the present boundary between Costa Rica and Nicaragua. The Treaty of Limits is not an ordinary boundary treaty. It is an example
par excellence of a treaty establishing a boundary regime.2 Article II of the Treaty of Limits fixed the course of the boundary between Costa Rica and Nicaragua from the Pacific Ocean to the Caribbean Sea.3 Part of the border between the two countries runs along the right bank (i.e. the Costa Rican side) of the San Juan River; namely, from a point three miles below Castillo
Viejo, a small town in Nicaragua, to the end of Punta de Castilla, where the river enters the Caribbean Sea. Article VI of the Treaty of Limits contained the essential bargain of the territorial settlement: it conferred on Nicaragua full and exclusive sovereignty over the entire course of the San Juan River, in exchange for which Costa Rica was granted a perpetual right of free navigation ‘con objetos de comercio’ on that approximately 87 mile-long stretch of the river, which constitutes the border between the two countries.4 Treaties involving territorial settlements are by their nature characterized by permanence and the objective of achieving finality and stability. The Treaty of Limits is no exception.5 And yet the boundary regime established between Costa Rica and Nicaragua in the Treaty of Limits appears to be one of the most litigated bilateral treaties in the history of the International Court of Justice (hereinafter ‘the ICJ’ or ‘the Court’). During the late-nineteenth century, Nicaragua had on various occasions
challenged the validity of the Treaty of Limits and, as a result, the parties submitted the question to arbitration by US President Cleveland. It was additionally agreed that, if the Treaty of Limits was found to be valid, President Cleveland should also decide whether Costa Rica could navigate the San Juan River with vessels of war or of the revenue service. In the Cleveland Award of 22 March 1888, President Cleveland held that the Treaty of Limits was valid. With reference to Article VI of the Treaty of Limits, President Cleveland further stated that Costa Rica did not have the right of navigation on the San Juan River with vessels of war, although it could navigate with such revenue service vessels as may be connected to navigation ‘for the purposes of commerce’.6
