UN International Court of Justice Affirms Nicaraguan Sovereignty over San Juan River and Country’s Right to Regulate Traffic by Costa Rican Vessels; ICJ Upholds Ban on Costa Rican Military/Police Use of River

Ruling on Case Brough in 2005 Upholds 1858 Treaty Between Nicaragua and Costa Rica; Foley Hoag Partner Paul Reichler Argued Key Points for Nicaragua at ICJ

August 13, 2009

The International Court of Justice in The Hague has today unanimously reaffirmed Nicaragua’s exclusive sovereignty over the San Juan River, which forms the boundary between Nicaragua and Costa Rica,  as well as Nicaragua’s right to regulate Costa Rican commercial transport on the river.

The ruling, handed down July 13 in a case brought by Costa Rica against Nicaragua in 2005, also unanimously upholds Nicaragua’s ban on use of the river by Costa Rican police and military forces.

Ambassador Carlos Arguello, Nicaragua’s Agent in the case before the ICJ, said “This is a great day for Nicaragua. We are extremely pleased that the International Court of Justice agreed with the most important of our arguments – that the San Juan River is under the exclusive sovereignty of Nicaragua, that Nicaragua retains the right to regulate commerce on a river wholly within its territory, and that Costa Rica cannot in any way use military or police authorities on a river under Nicaraguan sovereignty.  As neighboring nations, we should both be happy that this issue has been equitably settled, paving the way for improved relations and cooperation between our two countries.”

Paul Reichler, a partner in the Washington, DC, office of Foley Hoag LLP, represented Nicaragua and argued several essential points of the case, including the country’s right to regulate commerce and to keep Costa Rican military and police authorities off the San Juan River.

“This is a tremendous victory for Nicaragua,” Mr. Reichler said. “The Court not only ruled unanimously that Nicaragua has the right to regulate Costa Rican commercial navigation as well, but found, also unanimously, that the specific regulations on that navigation by Nicaragua were reasonable and lawful. Equally important, the Court limited Costa Rica’s rights to commercial navigation – rights Nicaragua has always acknowledged – and held unanimously that Costa Rica has no right to exercise any police powers whatsoever on the river. The ICJ ruled that Costa Rica may not put police vessels on the river.”

Costa Rica brought the dispute to the ICJ in October 2005, seeking the right to police the river, allegedly to prevent illegal immigration flowing from Nicaragua; Costa Rica also challenged Nicaragua’s power to regulate commercial transport on the waterway.

For its part, Nicaragua asserted the need to monitor shipping on the river due to concerns such as environmental protection, navigation safety, stopping contraband, and pollution control. Although the heavily jungled banks are settled on the Costa Rican side, the Nicaraguan border is at the edge of a lush and extensive wildlife preserve.

The San Juan River has been a source of exotic adventure travel for several hundred years.  Following a trip in 1866, Mark Twain rhapsodized that the winding, rainforest waterway was home to a natural wonderland of “dark grottos, fairy festoons, temples, columns, pillars, towers, pilasters, terraces, pyramids, mounds, domes, walls, in endless confusion of vine work.”

Costa Rican and Nicaraguan travel boats still ply the river as part of a popular eco-tourism industry.

An 1858 treaty gave Nicaragua complete sovereignty over the San Juan River because Nicaraguan territory had once extended south of the river into what is today Costa Rica. The San Juan River runs about 205 kilometers (127 miles) from Lake Nicaragua to the Caribbean Sea; the eastern two-thirds of the river’s course forms part of the international border between Nicaragua and Costa Rica.

Before the treaty the river was for a time a vital transportation link between the East and West Coasts of the United States: during the California Gold Rush, it was often easier to travel by water and land across Central America than through the dangerous and unsettled central portion of what is now the United States.

The 1858 treaty has faced challenges in the past: notably, U.S. President Grover Cleveland was called upon in 1888 to arbitrate a dispute between the two countries. He ruled, among other things, that while Costa Rica could use the San Juan for commerce it could not put military craft on the river.

Working together with Mr. Reichler were Lawrence Martin, a partner, Clara Brillembourg, an associate, both of Foley Hoag’s Washington, DC office. Nicaragua’s distinguished legal team also included Sir Ian Brownlie of the United Kingdom, Professor Alain Pellet of France, Professor Antonio Remiro Brotons of Spain, and Professor Stephen McCaffrey of the United States.

Mr. Reichler specializes in representing nations before the International Court of Justice and other international judicial and arbitral tribunals around the world. He is currently working on behalf of several other South American governments, including Uruguay, Ecuador, Bolivia and Venezuela, in international legal disputes.

About Foley Hoag LLP

Foley Hoag provides innovative, strategic legal services to public, private and government clients across the globe. We have premier capabilities in the life sciences, healthcare, technology, energy, professional services and private funds fields, and in cross-border disputes. The diverse backgrounds, perspectives and experiences of our lawyers and business services professionals contribute to the exceptional service we deliver to clients ranging from startups to multinational companies to sovereign states. For more information, visit www.foleyhoag.com or follow @FoleyHoag on Twitter.