The Recent Land and Maritime Delimitation of the Court of The Hague in the Affairs of Costa Rica v. Nicaragua, in Light of their Proposals
| Author | Eric Tremolada Alvarez |
| Position | Full Professor & Researcher of Public International Law and Jean Monnet Chair Holder of European and Latinoamerican Law; Externado of Colombia University. |
| Pages | 47-84 |
PAIX ET SÉCURITÉ INTERNATIONALES
Journal of International Law and International Relations
Num 7, janvier-décembre 2019 | ISSN 2341-0868
DOI http://dx.doi.org/10.25267/Paix_secur_int.2019.i7.02
Paix et Securité Internationales
ISSN 2341-0868, Num. 7, janvier-décembre 2019, pp. 47-84
DOI: http://dx.doi.org/10.25267/Paix_secur_int.2019.i7.02
THE LAND AND MARITIME DELIMITATION OF THE COURT OF
THE HAGUE IN THE AFFAIRS OF COSTA RICA V. NICARAGUA,
IN LIGHT OF THEIR PROPOSALS (FEBRUARY 2, 2018)
Eric TREMOLADA ALVAREZ1
I.-INTRODUCTION. II.-THE PROCESS. III.-RELEVANT GEOGRAPHY. IV.-
RELEVANT HISTORY. V.-THE LEGAL APPROACHES OF THE PARTIES. VI.-
THE COURT’S PRONOUNCEMENTS.VII.-CONCLUSIONS.
ABSTRACT: Costa Rica and Nicaragua, that rarely reach direct agreements, had not delimited the
maritime areas in the Caribbean Sea and the Pacifi c Ocean, nor the land boundary in the northern
part of Isla Portillos. Thus, Costa Rica fi rst initiated an action in the International Court of Justice in
2014 regarding the maritime issue, and later, in 2017, requested the defi nition of the land boundary
of that area in Isla Portillos and that it be noted that Nicaragua had set up a new military camp on
its beach.
This text – in view of the parties’ proposals - will analyze the recent judgment of the Court in
the joined procedures, studying the proceedings followed, the relevant geography and history, the
theses of the Parties and the reasoning of the Court.
KEY WORDS: International Court of Justice, res judicata, territorial and maritime delimitation,
methodologies to delimit territorial sea, exclusive economic zone and continental shelf.
LA RECIENTE DELIMITACIÓN TERRESTRE Y MARÍTIMA DE LA CORTE DE LA
HAYA (2 DE FEBRERO DE 2018) EN LOS ASUNTOS DE COSTA RICA CONTRA NICA-
RAGUA A LA LUZ DE SUS PLANTEAMIENTOS
RESUMEN: Costa Rica y Nicaragua, que difícilmente llegan a arreglos directos, no habían deli-
mitado los espacios marítimos en el mar Caribe y en el océano Pacífi co, como tampoco el límite
de tierra en la parte norte de Isla Portillos. Así, Costa Rica inició primero un procedimiento ante
la Corte Internacional de Justicia en 2014 por el asunto marítimo, y más tarde, en 2017, solicitó la
defi nición del límite terrestre de esa área de Isla Portillos y que se constate que Nicaragua había
establecido un nuevo campamento militar en su playa.
Este escrito –a la luz de los planteamientos de las Partes– analizará la reciente sentencia de la
Corte que resolvió unidos los dos procedimientos, estudiando el trámite seguido, la geografía e
historia relevantes, las tesis de las Partes y el razonamiento de la Corte.
PALABRAS CLAVES: Corte Internacional de Justicia, cosa juzgada, delimitación territorial y
marítima, metodologías para delimitar mar territorial, zona económica exclusiva y plataforma con-
tinental.
1 Full Professor & Researcher of Public International Law and Jean Monnet Chair Holder of
European and Latinoamerican Law; Externado of Colombia University.
Citation: TREMOLADA ALVAREZ, E., «The Land and Maritime Delimitation of the Cour t of The H ague in
the Affairs of Costa Rica v. Nicaragu a, in Light of T heir Proposals (February 2, 2018)», Paix et Sécurité Internationales,
num. 7, 2019, pp. 47-84
Received: 11 June 2019
Accepted: 14 October 2019
The Land and Maritime Delimitation of the Court of The Hague in the Affairs of Costa Rica v. Nicaragua, in
Light of their Proposals (February 2, 2018)
Paix et Securité Internationales
ISSN 2341-0868, Num. 7, janvier-décembre 2019, pp. 47-84
DOI: http://dx.doi.org/10.25267/Paix_secur_int.2019.i7.02
L’ARRÊT DE LA COUR INTERNATIONA LE DE JUSTICE DANS LES AFFAIRES D E
DÉLIMITATION MARITIME ET TERRESTRE (COSTA RICA C. NICARAGUA), À LA
LUMIÈRE DE LEURS PROPOSITIONS RESPECTIVES (2 FÉVRIER 2018)
RÉSUMÉ: Le Costa Rica et le Nicaragua, qui di cilement arrivent à des accords directs, n’ont
pas délimité les espaces maritimes de la mer des Caraïbes et de l’océan Pacifi que, ni la frontière
terrestre dans la partie nord d’Isla Portillos. Ainsi, le Costa Rica a d’abord engagé une procédure
en matière maritime devant la Cour internationale de justice en 2014, puis en 2017, a demandé la
défi nition de la frontière terrestre de cette zone d’Isla Portillos et qu’il soit établi que le Nicaragua
avait établi un nouveau Camp militaire sur sa plage.
Ce document - à la lumière des approches des parties - analysera le récent arrêt de la Cour qui a
résolu les deux procédures ensemble, étudiera la procédure suivie, la géographie et l’histoire perti-
nentes, les thèses des parties et le raisonnement de la Cour.
MOT CLÉ: Cour internationale de Justice, autorité de la chose jugée, délimitation territoriale et
maritime, méthodes de délimitation de la mer territoriale, zone économique exclusive et plateau
continental.
I. INTRODUCTION
Direct agreements have never been the norm between Costa Rica and
Nicaragua, which is why they have appeared before the International Court
of Justice on six different occasions. Her lack of will to fi nd solutions is
transferred to the International Court of Justice as the principal judicial
organ of the United Nations2. The fi rst proceedings date back to 1986,
when Nicaragua sued Costa Rica and Honduras, alleging various violations
of international law, for which both States were internationally responsible,
as they favored, from their own territory, certain military activities directed
against the Nicaraguan authorities by the opposition. In 1992, the parties had
reached an out-of-court agreement, so the Court issued an order registering
the suspension of the proceedings and ordering the case be wiped from the
general list3.
Costa Rica, in turn, sued Nicaragua in 2005, due to a dispute regarding
shipping and related rights on a section of the San Juan river, whose southern
2 See: , F., “Sobre la función de los tribunales internacionales y en particular
del Tribunal Internacional de Justicia en el actual sistema jurídico internacional”, Las Naciones
Unidas desde España. 70 aniversario de las Naciones Unidas. 60 aniversario del ingreso de España en
las Naciones Unidas , (X. Pons Rafols dir.), Asociación para las Naciones Unidas en España,
Imprenta de la OID, Madrid, 2015, pp. 433-447; and Amr, M. S. M., The Role of the International
Court of Justice as the Principal Judicial Organ of the United Nations , Kluwer, La Haya, 2003.
3 International Court of Justice. Border and Transborder Ar med Actions (Nicaragua v. Costa
Rica). Overview of the Case. Available in: . icj-cij.org/en/case/73>.
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bank forms the boundary limit between the two States in accordance with a
bilateral treaty from 1858. In its request, Costa Rica stated that Nicaragua had
imposed, since the 1990s, several restrictions on Costa Rican ships and their
passengers sailing along the San Juan river, violating article VI of the 1858
Treaty. The Court, in 2009, concluded that Nicaragua was not acting in accor-
dance with the obligations set out in the 1858 Treaty4, when they demanded
that those travelling along the San Juan river aboard Costa Rican ships must
have a visa or buy Nicaraguan tourist passes; or when they demanded that the
shipping operators who exercised the right to free shipping in Costa Rica pay
the price for exit certifi cates5.
In 2010, Costa Rica began new proceedings against Nicaragua, for su-
pposed incursions and occupations by their army in Costa Rican territory, as
well as for violating several international agreements6. Costa Rica stated that
Nicaragua had occupied, on two different occasions, Costa Rican territory,
through the construction of a channel along Costa Rican territory, from the
San Juan river to the Los Portillos (or Harbor Head Lagoon), and by carrying
out dredging works along this river. The Court, in 2015, determined that
Costa Rica had sovereignty over the disputed territory in the northern part of
Isla Portillos, and considered that the activities carried out by Nicaragua since
2010 in the disputed territory, including the excavation of three channels and
the establishment of a military presence in parts of this territory, constituted
a violation of Costa Rican territorial sovereignty, and that Nicaragua must
therefore repair the damage caused by its illicit activities in Costa Rican terri-
tory. The sentence established that Nicaragua must compensate Costa Rica
4 Instituto de Historia de Nicaragua y Centroamé rica. (s.f.). Tratado de Lí mites entre Nicaragua
y Costa Rica: Jerez – Cañ as – Negrete, 1858. Obtenido de Memoria Centroamericana Ihnca.
Disponible en:
de_limites_entre_Nicaragua_y_Costa_Rica_Jerez.pdf>.
5 Q., M. “Disputa fronteriza y valor geoestratégico del río San Juan: Nicaragua y
Costa Rica”, Cuadernos de Geografía: Revista Colombiana de Geografía, v. 23, n. 2, p. 69-83, jul.
2014.
6 El confl icto jurídico ambiental entre
Costa Rica y Nicaragua, Relativo a determinadas actividades llegadas a cabo en la zona fronteriza en el
año 2010. Universidad de Costa Rica, December 2012. Retrieved from
sites/default/fi les/documentos/t12-el_confl icto_jurídico_ambiental_entre_costa_rica_y_
nicaragua.pdf>.
The Land and Maritime Delimitation of the Court of The Hague in the Affairs of Costa Rica v. Nicaragua, in
Light of their Proposals (February 2, 2018)
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for the material damage caused by its illegal activities7; and in the case that
an agreement was not reached between the parties within the 12 following
months, the Court would resolve the issue in later proceedings8.
In 2017, Costa Rica requested that the Court resolve the issue of the
damages owed to them for Nicaragua’s illicit activities. The Court resolved
this issue on the 2nd of February 2018, establishing that the damage to the
environment, and the consequential deterioration or loss of capacity of the
environment to provide goods and services, was cause for compensation,
and determined the sum for the restoration of the damaged surroundings,
as well as the loss or deterioration of environmental goods and services, as
378,890.59 US dollars9.
In 2011, Nicaragua began proceedings against Costa Rica for violations
of Nicaraguan sovereignty and great environmental damage in its territory.
Nicaragua stated that Costa Rica was carrying out extensive road construc-
tion along the majority of the borderlands between the two countries, with
serious environmental consequences. The Court, in 2013, in accordance with
the principle of good administration of justice, and needing to economize on
proceedings, considered it appropriate to link this case with the related issue
of certain activities carried out by Nicaragua in the borderlands. In its senten-
ce in 2015, the Court concluded that the construction of the road by Costa
Rica led to the risk of sensitive trans-border damage; it therefore determined
that Costa Rica had not fulfi lled its obligation under general international law
to carry out an environmental impact evaluation (EIE). The Court concluded
7 , J. J. “Cuestiones de procedimiento en los casos Costa Rica c. Nicaragua y Nicaragua
c. Costa Rica ante la Corte Internacional de Justicia”, Anuario Colombiano de Derecho Internacional
(ACDI), 2017, 10, pp. 117-159.
8 International Court of Justice. Certain Activities Carried Out by Nicaragua in the Border
Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan
River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015.
9 On 22nd March 2018, Nicaragua informed the Court Registry that on 8th March 2018, it
had transferred the total amount of the compensation awarded, to Costa Rica. See: Inter-
national Court of Justice. Certain Activities Carried Out by Nicaragua in the Border Area
(Costa Rica v. Nicaragua) and Compensation Owed by the Republic of Nicaragua to the
Republic of Costa Rica Judgment, I.C.J. Reports 2018.
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that a declaration of illicit conduct regarding Costa Rica’s violation of the
obligation to carry out an EIE was an adequate measure of satisfaction10.
All of this led Costa Rica to seek the defi nitive defi nition of the border
with Nicaragua: in maritime terms, regarding the Caribbean Sea and the Pa-
cifi c Ocean; and on land, in the northern sector of Isla Portillos. Hence, this
paper deals with two disputes that Costa Rica brought before the Internatio-
nal Court of Justice against Nicaragua. The fi rst one on February 25th , 2014,
which referred to the establishment of single maritime limits between the
two States in the Caribbean Sea and the Pacifi c Ocean, respectively. It sought
to defi ne the borders of all maritime areas that belonged to each of them,
in accordance with applicable regulation and the principles of international
law. The second proceeding was fi led with the Court three years later, on
January 16th, 2017, and was related to a dispute over the precise defi nition
of the boundary of the area of Los Portillos - Harbor Head Lagoon, and
the establishment of a new Nicaraguan military camp on the beaches of Isla
Portillos.
The Court, taking into account the assertions made by Costa Rica in the
case regarding the land border in the northern part of Isla Portillos, and
considering the tight link between these claims and certain aspects of the dis-
pute in the case regarding the maritime delimitation in the Caribbean Sea and
Pacifi c Ocean, joined the two proceedings by an order on February 2nd, 2017.
II. THE PROCESS
Costa Rica, having stated that diplomatic means had been exhausted to
resolve their disputes over maritime boundaries with Nicaragua, requested
that the Court determine the complete layout of a single maritime boundary
between all maritime areas belonging to the two States. Thus, considering
that its coasts generate rights superimposed on the areas on both sides of the
isthmus, it initiated the proceeding before the Court on February 25th, 2014,
requesting the maritime delimitation in the Caribbean Sea and the Pacifi c
Ocean, based on international law.
10 International Court of Justice. Certain Activities Carried Out by Nicaragua in the Border
Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan
River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015
The Land and Maritime Delimitation of the Court of The Hague in the Affairs of Costa Rica v. Nicaragua, in
Light of their Proposals (February 2, 2018)
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On May 31st, 2016, in order to resolve the confl ict, the Court requested
an expert opinion to help establish pertinent factual issues. By order of June
16th, 2016, Eric Fouache and Francisco Gutiérrez were appointed as indepen-
dent 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
allegations, as the starting point of the maritime boundary in the Caribbean
Sea.
On January 16th, 2017, Costa Rica fi led another lawsuit against Nicaragua,
to specify the defi nition of the boundary in the area of Los Portillos - Harbor
Head Lagoon, and it was found that Nicaragua had established a new military
camp on the beach of Isla Portillos.
Thus, in view of the assertions made by Costa Rica in the case concerning
the land border in the northern part of Isla Portillos, and the close link be-
tween these claims and certain aspects of the dispute in the case concerning
the maritime delimitation in the Caribbean Sea and the Pacifi c Ocean, the
Court - as mentioned - joined the two procedures on February 2nd, 2017.
In the latter case, Costa Rica argued the jurisdiction of the Court, citing
its statement on February 20th, 1973 and the statement made by Nicaragua on
September 24th, 1929. Declarations that, based on the Statutes of the Inter-
national Court of Justice and the Permanent Court of International Justice,
mentioned the acceptance of compulsory jurisdiction. Costa Rica also noted
that the Court has jurisdiction “in accordance with the provisions of Article
36, paragraph 1, of its Statute, by virtue of the application of the American
Treaty on Settlement of Disputes in the Pacifi c (‘Tratado Americano de So-
lución de Controversias en el Pacífi co’) ... Article XXXI”.
The Court held hearings on the background of the joined cases from
July 3rd to 13th, 2017, and issued a ruling for the two cases on February 2nd,
2018. Within this ruling, it determined the course of the single maritime bor-
ders between Costa Rica and Nicaragua in the Caribbean Sea and the Pacifi c
Ocean11.
11 The Court decided that the maritime boundary between the two States in the Caribbean
Sea would follow the course established in paragraphs 106 and 158 of the Judgment, and
in the Pacifi c Ocean, it would follow the course set forth in paragraphs 175 and 201 of the
same. See: International Court of Justice. Maritime Delimitation in the Caribbean Sea and
the Pacifi c Ocean (Costa Rica V. Nicaragua) and Land Boundary in the northern part of Isla
Portillos (Costa Rica V. Nicaragua). Judgment, I.C.J., 2 February, Reports 2018.
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It was also made clear that Costa Rica has sovereignty over the entire
northern part of Portillo Island, including its coastline to the point where
the right bank of the San Juan River reaches the low-water line of the coast
of the Caribbean Sea, with the exception of Harbor Head Lagoon and the
sandbar that separates it from the Caribbean Sea; in these spaces, sovereignty
belongs to Nicaragua12.
Finally, it found that Nicaragua had established and maintained a military
camp in Costa Rican territory, thus violating the sovereignty of the Republic
of Costa Rica and that, Nicaragua must therefore withdraw its military camp
from that territory.
III. RELEVANT GEOGRAPHY
Costa Rica and Nicaragua, located in Central America, share a land boun-
dary that spans the Central American isthmus from the Caribbean Sea to the
Pacifi c Ocean. To the north of that limit, we fi nd Nicaragua and to the south
of it, Costa Rica. Once contextualizied the location of both, it is important to
note that Costa Rica shares a border with Panama in the south and Nicaragua
with Honduras in the north.
Isla Portillos, whose northern part was the subject of the dispute over
land boundaries, is an approximate area of 17 square kilometers, which is
bordered to the west by the San Juan River and to the north by the Caribbean
Sea. At its northwestern end, there is a sandy beach of varying length, that
diverts the fi nal course of the San Juan River, displacing its mouth to the
west. On the coast of Isla Portillos, approximately 3.6 kilometers east of the
mouth of the San Juan River, there is a lagoon, called Laguna Los Portillos by
Costa Rica and Laguna Harbor Head by Nicaragua. This lagoon is separated
from the Caribbean Sea by a sand bank.
The Caribbean Sea is located in the western part of the Atlantic Ocean.
This Sea is partially enclosed to the north and east by the Caribbean islands,
and borders South and West with South and Central America, respectively. In
the Caribbean, off the coast of Nicaragua, there are several islands and cays,
of which the Corn Islands are the most prominent, located 26 nautical miles
from its coast, and which have an area, respectively, of 9.6 square kilometers
(Great Corn Island) and 3 square kilometers (Little Corn Island). The Corn
12 This, within the limits defi ned in paragraph 73 of the Judgment. Ibid.
The Land and Maritime Delimitation of the Court of The Hague in the Affairs of Costa Rica v. Nicaragua, in
Light of their Proposals (February 2, 2018)
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Islands have a population of close to 7,400 inhabitants. Other small features
found off the Nicaraguan coast include Paxaro Bovo, the Palmenta Cays,
Pearl Cays, Tyra Rock, Man of War Cays, Ned Thomas Cay, Miskitos Cays,
Dead Cay and Edinburgh Reef. Costa Rica also has two small islands - Isla
Pájaros and Isla Uvita - less than half a nautical mile from its coast, near the
city of Limón.
On the Pacifi c side, the coast of Nicaragua is relatively straight and ge-
nerally follows a northwest to southeast direction. The Costa Rican coast
is more sinuous and includes the peninsulas of Santa Elena (near the land
limit), Nicoya and Osa (International Court of Justice, 2018b).
In this section, it is important to mention the delimitations previously
made. In the Caribbean Sea, Costa Rica concluded, on February 2nd, 1980,
a treaty with Panama that delimited a maritime boundary; this treaty came
into force on February 11th, 1982. This country also negotiated and signed a
maritime delimitation treaty with Colombia in 1977, but it was never ratifi ed.
In this same sea, the maritime borders of Nicaragua with Honduras - to
the north - and Colombia - to the east - were established by Court judgments
in 200713 and 201214, respectively. Colombia and Panama also concluded a
maritime delimitation treaty that established their boundary in the Caribbean
Sea on November 20th, 1976, which came into force on November 30th,
197715.
Regarding the Pacifi c Ocean, it should be noted that the aforementioned
treaty signed by Costa Rica and Panama in 1980 also delimited its maritime
border in this ocean. Nicaragua, in the Pacifi c, has not concluded any treaty
that establishes a maritime boundary.
13 International Court of Justice. Case concerning Territorial and Maritime dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras). Judgment, I.C.J., 8
of October 2007, Reports 2007 (II).
14 International Court of Justice. Territorial and Maritime Dispute (Nicaragua v. Colombia):
Judgment, I.C.J., 19 November, Reports 2012 (II).
15 Cfr. United Nations, Treaty Series (UNTS), vol. 1074, p. 221.
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IV. RELEVANT HISTORY
The Court recalled that in the Costa Rican case against Nicaragua, re-
garding certain activities carried out by Nicaragua in the border area16, it had
been established that the parties’ disputes dated back to a historical context in
the 1850s. After hostilities between the two States in 1857, the governments
of Costa Rica and Nicaragua signed a Treaty of Limits on April 15th, 1858,
that was ratifi ed by Costa Rica on April 16th, 1858 and by Nicaragua on April
26th, 185817.
The Treaty of 1858 fi xed the course of the land border between Costa
Rica and Nicaragua, from the Pacifi c Ocean to the Caribbean Sea18. Accor-
ding to Article II of the aforementioned Treaty, the boundary between the
two States runs along the right (Costa Rica) shore of the San Juan River from
a point three English miles below Castillo Viejo, a small town in Nicaragua, to
the end of Punta de Castilla, at the mouth of the San Juan on the Caribbean
coast19.
Nicaragua challenged the validity of the Treaty of 1858 on several occa-
sions, hence both States signed another document on December 24th, 1886,
by which they agreed to submit the validity of the 1858 Treaty to the Pre-
sident of the United States of America, Grover Cleveland, to arbitration.
They also agreed that if it was determined that the 1858 Treaty were valid,
President Cleveland should also decide “on all other points of doubtful interpreta-
tion that either Party may fi nd in the Treaty.” Thus, on June 22nd, 1887, Nicaragua
informed Costa Rica of 11 points of doubtful interpretation, which were
then presented to President Cleveland for resolution. Cleveland’s 1888 award
confi rmed, in paragraph 1, the validity of the Treaty of 1858 and determi-
16 International Court of Justice. Certain Activities Carried Out by Nicaragua in the Border
Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan
River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, page 665
17 Cfr. United Nations, Treaty Series (UNTS), vol. 118, p. 439.
18 , F. K. “Confl ictos limítrofes y discurso nacionalista. La frontera Nicaragua-Costa
Rica (1824-1858)”, Las fronteras del Istmo. Fronteras y sociedades entre el sur de Mexico y America
Central (P. Bovin dir.), Centro de Estudios Mexicanos y Centroamericanos. México, 2005,
pp. 97-107.
19 International Court of Justice. Maritime Delimitation in the Caribbean Sea and the Pacifi c
Ocean (Costa Rica V. Nicaragua) and Land Boundary in the northern part of Isla Portillos
(Costa Rica V. Nicaragua). Judgment, I.C.J., 2 February, Reports 2018, paragraph 51.
The Land and Maritime Delimitation of the Court of The Hague in the Affairs of Costa Rica v. Nicaragua, in
Light of their Proposals (February 2, 2018)
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ned, in paragraph 3, that the border between the two States on the Atlantic
side began “at the end of Punta de Castilla in the mouth of the San Juan de
Nicaragua River”20.
After the Cleveland Award, the Parties agreed on a Convention on border
demarcation that they signed in San Salvador on March 27th, 189621. In it, they
established two national demarcation commissions, each composed of two
members. Said agreement also stated that the commissions would include an
engineer, appointed by the President of the United States of America, who
“will have broad powers to decide any type of differences that may arise in
the course of any operation and whose decision would be fi nal”. As a con-
sequence, the General of the United States, Edward Porter Alexander, was
appointed and during the demarcation process, which began in 1897 and
ended in 1900, he issued fi ve awards.
In the fi rst of these, from September 30th, 1897, General Alexander de-
termined the initial segment of the land border near the Caribbean Sea, in
light of the geomorphological changes that had taken place since 1858. He
defi ned this segment as starting from “the extreme northwest that appears
to be the mainland, on the east side of Harbor Head Lagoon” and then ran
across the sandbar, from the Caribbean Sea to the waters of Harbor Head
Lagoon. From there, he determined that the limit “would follow the water’s
edge around the port until it reached the river by the fi rst channel”. However,
as the Court pointed out in the 2015 judgment, what the arbitrator conside-
red to be the “fi rst channel” was a branch of the San Juan River that then
fl owed into the Harbor Head Lagoon22.
Since the time of the Alexander’s awards and the work of the demarca-
tion commissions, the northern part of Isla Portillos has undergone signi-
fi cant geomorphological changes. In 2010, a dispute arose between Costa
Rica and Nicaragua, regarding certain activities carried out by Nicaragua in
that area. In its 2015 judgment, the Court considered the impact of some
of these changes on the issue of territorial sovereignty, declaring “that the
20 Cfr. United Nations, Treaty Series (UNTS), vol. 118, p. 439, paragraph 52.
21 Cfr. Naciones Unidas. Informes de Laudos Arbitrales Internacionales, RIAA, 2007, vol. XXVIII,
p. 211.
22 International Court of Justice. Certain Activities Carried Out by Nicaragua in the Border
Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan
River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, page 699, paragraph 73.
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territory under Costa Rica’s sovereignty extends to the right bank of the San
Juan Inferior River up to its mouth in the Caribbean Sea”23. Thus, Costa Rica
had sovereignty over an area of 3 km2 in the northern part of Isla Portillos,
although the Court pointed out in its description of this area that it does not
specifi cally refer to the stretch of coastline bordering the Caribbean Sea that
is between the Harbor Head Lagoon and the mouth of the San Juan river,
which, according to both Parties, is Nicaraguan24. The land boundaries in this
stretch of coast is one of the issues that was disputed between the Parties in
the joined cases.
In relation to the maritime zones, the two Parties established, in May
1997, a Bilateral Subcommittee on Limits and Cartography to carry out pre-
liminary technical studies on possible maritime delimitations in the Pacifi c
Ocean and the Caribbean Sea. In 2002, the deputy foreign ministers of both
countries instructed the Bilateral Subcommittee to begin negotiations. The
Subcommittee held fi ve meetings between 2002 and 2005. Several technical
meetings were also held between the National Geographic Institute of Cos-
ta Rica and the Nicaraguan Institute of Territorial Studies, during the same
period. After these initial meetings, negotiations on maritime delimitations
between the two States stalled25. Sovereignty exacerbated, based on the state
territory26.
V. THE LEGAL APPROACHES OF THE PARTIES
The land border in the northern part of Isla Portillos poses questions of
territorial sovereignty that had to be examined fi rst due to its possible impli-
cations for maritime delimitation in the Caribbean. In this issue, the Parties
express dissenting opinions on the interpretation of the 2015 judgment, and
present contradictory allegations on certain issues related to sovereignty over
the coast of the northern part of Isla Portillos.
23 Ibid., page 702, paragraph 92.
24 Ibid., pages 696-697, paragraphs 69-70 and page 740, paragraphs 229.
25 International Court of Justice. Maritime Delimitation in the Caribbean Sea and the Pacifi c
Ocean (Costa Rica V. Nicaragua) and Land Boundary in the northern part of Isla Portillos
(Costa Rica V. Nicaragua). Judgment, I.C.J., 2 February, Reports 2018, paragraphs 53-56.
26 , J., “El territorio del Estado”, CEBDI , vol. IV, 2000, pp. 223-323.
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According to Costa Rica’s reading of that judgment, it was established
that the beach of Isla Portillos belongs to Costa Rica, a decision that has the
force of res judicata. For them, only the issue regarding the precise location
of the boundary at each end of the Harbor Head Lagoon sand bar remained
unsettled.
In Costa Rica’s view, in accordance with Article II of the 1858 Treaty, the
continental boundary extends along the right bank of the Lower San Juan Ri-
ver to its mouth in the Caribbean Sea and the land boundary is found on the
right bank of the San Juan River at its mouth. Thus, and to their knowledge,
the only Nicaraguan territory in the area of Isla Portillos is the enclave of the
Los Portillos - Harbor Head lagoon and the sandbar that separates the lagoon
from the Caribbean Sea27.
On the other hand, Nicaragua argued that the 2015 judgment did not set
the limits of the territory in dispute, since the case of “certain activities” re-
ferred to the responsibility of the State for unlawful acts and did not refer to
the delimitation. In that case, the Court was not required to adopt a position
with regard to sovereignty over the relevant stretch of coastline or its precise
limits, so in their opinion, the sovereignty over the beach of Isla Portillos had
not been determined.
Regarding the Treaty of 1858 and subsequent Cleveland and Alexander’s
awards, Nicaragua understood that they described a fi xed point in Punta de
Castilla as being the point of departure of the border, and not at the mouth
of the San Juan River. It emphasized that President Cleveland established the
starting point of the land limit “at the end of Punta de Castilla at the mouth
of the San Juan River of Nicaragua, since both existed on April 15th, 1858.”
A binding ruling for the Parties, which had made the starting point clear as
an “immobile fi xed point” whose location would not change after changes in
river fl ow. Therefore, the fi rst Alexander’s award made “great efforts to fi nd
where Punta de Castilla was, because that was the fi xed starting point for the
border.”
Nicaragua, in its Counter-Memorial, argued that the San Juan River chan-
nel, which emptied into Harbor Head Lagoon and marked the land boundary
at the time of the fi rst Alexander’s award, continues to fl ow into the lagoon.
27 International Court of Justice. Maritime Delimitation in the Caribbean Sea and the Pacifi c
Ocean (Costa Rica V. Nicaragua) and Land Boundary in the northern part of Isla Portillos
(Costa Rica V. Nicaragua). Judgment, I.C.J., 2 February, Reports 2018, paragraphs. 61 & 62.
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Hence, it understood that the beach of Isla Portillos and the sandbar between
the Harbor Head lagoon and the Caribbean Sea make up the remainder of
the barrier that separated the lagoon from the Caribbean Sea, considering it
as an independent element, separate from the continent.
Thus, in Nicaragua’s view, the land boundary between the Parties began at
the northeast corner of the sandbar that separates the Harbor Head lagoon
from the Caribbean Sea, cuts through that sandbar and follows the water’s
edge around the lagoon until it joins the canal that connects the Harbor Head
lagoon with San Juan Inferior. The border then follows the outline of Isla
Portillos to lower San Juan. Consequently, it argued that the stretch of coast-
line between the Harbor Head Lagoon and the mouth of the San Juan River
was under Nicaraguan sovereignty.
In spoken allegations, Nicaragua tried to reinforce its arguments with a
certain tone of fatality, making the Court see that if it accepted the posi-
tion of Costa Rica and decided that the coast was not under its sovereignty,
“the entire structure, carefully created by the Treaty of 1858, and the awards
would be dismantled” and the border would have to be revised.
Finally, in this regard, Nicaragua acknowledged in the hearings that in
recent years, the channel that connected Harbor Head Lagoon with the San
Juan River had “partially disappeared”, and that as the rules of accretion and
erosion do not apply to the current situation, consequently, “the limit should
continue to be defi ned by the approximate location of the previous channel,
so that the boundary that now separates the beach from the wetland behind
it corresponds to the vegetation line”28.
In relation to the alleged violations of the sovereignty of Costa Rica, this
country stated that, “in establishing and maintaining a new military camp
on the beach of Isla Portillos, Nicaragua has violated the sovereignty and
territorial integrity of Costa Rica” and, in addition, it violated the December
2015 judgment. Costa Rica was referring to a military camp that was placed in
August 2016 “northwest of the lagoon’s sand bank and installed on the beach
of the northern part of Isla Portillos”, and requested that the Court order
that “Nicaragua must withdraw its military camp”.
Nicaragua, on the other hand, stated, fi rstly, that the camp was located
on the “sand bank that separates Laguna de la Cabeza del Puerto from the
28 Ibid., paragraphs 63-66.
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Caribbean Sea”. Later, in its allegations, Nicaragua did not contest that the
camp was on the beach outside the boundaries of the sandbar that separates
the lagoon from the Caribbean Sea; however, it argued that “the entire coast
belongs to Nicaragua.” The Nicaraguan defense argued that the Court, at
that time, had not issued any decision with res judicata effect regarding the
beach where the camp was located. As an alternative argument, Nicaragua
argued that, even if the Court determined that the entire coastline is under
Costa Rican sovereignty, the camp was still positioned on a part of the beach
that belongs to Nicaragua, due to the presence of a water channel that runs
behind the camp and connects with Harbor Head Lagoon29.
In the case, divergent opinions of the Parties regarding the starting point
of the land boundary were evident, when they explained the starting point of
the maritime delimitation in the Caribbean Sea. For Costa Rica, the maritime
delimitation should begin at the mouth of the San Juan River; however, aware
of the instability of the coast and, in particular, the characteristics near the
point where the San Juan River fl ows into the Caribbean Sea, it suggested that
the starting point of the maritime delimitation not be located at the western
end of the mouth of the river where the sand accumulates, but on “the solid
ground of Isla Portillos”30.
Nicaragua, on the other hand, maintained that, according to the Treaty
of 1858 and the Cleveland’s award, the land border line began “at the end of
Punta de Castilla at the mouth of the San Juan River in Nicaragua, since both
existed on April 15th, 1858”, and that this point should be used for the mariti-
me delimitation in the Caribbean, even if it had been submerged by the sea31.
Costa Rica maintained that, in terms of the enclave under the sovereign-
ty of Nicaragua, a starting point could not be established for the maritime
delimitation on the sandbank that separates the Harbor Head lagoon from
the Caribbean Sea, due to the general characteristics of the sandbank and, in
particular, its instability. Nicaragua addressed the issue of the starting points
of the maritime delimitation related to the enclave only as an alternative, in
the event that the Court did not accept its main argument that the starting
29 Ibid., paragraphs 74-76.
30 Ibid., paragraphs 79-80.
31 Ibid., paragraph 81.
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point of the maritime delimitation is the same point identifi ed by General
Alexander as the starting point for the land boundary32.
Costa Rica argued that the Court should fi rst delimit the boundaries of
the Parties in the territorial sea, and then -using another method- that of the
exclusive economic zone and the continental shelf. It understood the delimi-
tation of the territorial sea in accordance with Article 15 of the United Na-
tions Convention on the Law of the Sea (UNCLOS) and the delimitation of
the exclusive economic zone and the continental shelf under the parameters
of Articles 74 and 83 of the same Convention.
Nicaragua, on the other hand, argued that Article 15 of the United Na-
tions Convention on the Law of the Sea does not stipulate how delimitation
should be effected, but only how States should act in the event of an agree-
ment not being reached on delimitation. It also emphasized that there was
no practical difference between the delimitation regime of the territorial sea
and the regime applicable to the delimitation of the exclusive economic zone
and the continental shelf, described respectively in Articles 15, 74 and 83 of
the UNCLOS. In their opinion, “the approaches to the delimitation of the
different maritime zones are convergent” and all the relevant provisions of
the UNCLOS should be read together and in context.
Regardless of the above, the Parties - in accordance with the jurispru-
dence of the Court - agreed that, for the delimitation of the territorial sea, it
was fi rst necessary to establish the equidistance line. They then proceeded to
discuss it by drawing a provisional equidistant line, and subsequently argue
whether special circumstances existed that would justify the adjustment of
the same33. The agreement of the parties on the solution criteria applied in
the jurisprudence favors the resolution of the confl ict34.
Both Costa Rica and Nicaragua requested that the Court draw a single
delimitation line for their exclusive economic zones and continental shelves.
32 Ibid., paragraphs 87-88.
33 Ibid., paragraphs 91-94.
34 See: , A. G., “La labor de la Corte Internacional de Justicia en el arreglo
de las controversias territoriales. Una aproximación a los criterios de solución aplicados en
su jurisprudencia”, El Derecho internacional en el mundo multipolar del siglo XXI. Obra
Homenaje al profesor Luis Ignacio Sánchez Rodríguez (S. Torres Bernárdez, J.C. Fernández
Rozas, C. Fernández de Casadevante Romaní, J. Quel López, A.G. López Martín coords.),
Iprolex, Madrid, 2013, pp. 513-533.
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They also recognized the need to identify the relevant coasts that could ge-
nerate projections that overlap between their coasts, but, as would be expec-
ted, they do so with different approaches. Nicaragua argued that a coastline
segment can be considered relevant only if its frontal projection “overlaps
with the projection to the sea from the coast of the other Party”. Costa Rica
maintained that, with some exceptions, the relevant coasts are determined
through the establishment of coasts that generate overlapping rights using
radial projections35.
Although the Parties differed in their methods, they reached almost iden-
tical approaches with respect to the relevant coasts in the Caribbean Sea. Ni-
caragua maintained that “its relevant coast includes the coast up to Coconut
Point”, while the entire Costa Rican coast was relevant. Costa Rica adopted
the same position with respect to its own coast, but considered that “only the
coast of Nicaragua that ends at or near Punta de Perlas is relevant”36.
However, depending on the confi guration of the relevant coasts in the
general geographical context, the relevant area may include certain maritime
spaces and exclude others that are not related to the case in question37. The-
refore, the concept of the relevant area or area should be taken into account
as part of the maritime delimitation methodology38.
The Parties agree that the relevant area or zone should not include the
spaces attributed to Colombia based on the 2012 judgment and those attri-
buted to Panama by the 1980 bilateral treaty with Costa Rica39. In this sense,
they were consistent with what the Court declared in the Territorial and Ma-
ritime Dispute of Nicaragua against Colombia:
35 International Court of Justice. Maritime Delimitation in the Caribbean Sea and the Pacifi c
Ocean (Costa Rica V. Nicaragua) and Land Boundary in the northern part of Isla Portillos
(Costa Rica V. Nicaragua). Judgment, I.C.J., 2 February, Reports 2018, paragraphs 107-109.
36 Ibid., paragraph 110.
37 International Court of Justice. Territorial and Maritime Dispute (Nicaragua v. Colombia):
Judgment, I.C.J., 19 November, Reports 2012 (II), paragraph 157.
38 International Court of Justice. Dispute regarding Navigational and Related Rights (Costa
Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, page 99, paragraph 110.
39 International Court of Justice. Maritime Delimitation in the Caribbean Sea and the Pacifi c
Ocean (Costa Rica V. Nicaragua) and Land Boundary in the northern part of Isla Portillos
(Costa Rica V. Nicaragua). Judgment, I.C.J., 2 February, Reports 2018, paragraph 117).
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The Court recalls that the relevant area cannot be extended beyond
the area in which the rights of both Parties overlap. Consequently,
if one of the Parties has no right in a particular area, either by an
agreement with a third State or because that area is outside a judicially
determined limit between that Party and a third State, that area cannot
be treated as part of the relevant area for the present purposes40.
In the north, to determine the relevant area, Nicaragua argued that a line
should be drawn perpendicular to the general direction of the coast, starting
from Punta Coco, until it reaches the border with Colombia. Costa Rica, on
the other hand, argued that the relevant zone should also include the waters
that fall “within the radial projection of other parts of the coast that are re-
levant”.
In terms of the south, in order to defi ne the relevant area, Costa Rica
adopts a theoretical line that continues in the direction of its maritime boun-
dary with Panama, as established in its 1980 bilateral treaty. Nicaragua’s po-
sition on the relevant zone is that it must be limited to the south by the lines
drawn in the 1980 Treaty between Costa Rica and Panama and in the 1977
Treaty between Costa Rica and Colombia. However, it argued that if the
Court adopted the position of Costa Rica on the 1977 Treaty and extended
this area beyond the established limits, its limit would be the line established
in the 1976 Treaty between Panama and Colombia41.
The Parties, aware that the Court would delimit the exclusive economic
zone and the continental shelf according to its three-step methodology -as it
did in the case of maritime delimitation in the Black Sea-, fi rst drawing, pro-
visionally, an equidistant line using the most appropriate base points on the
relevant coasts; then considering whether there were relevant circumstances
that could have justifi ed an adjustment of the equidistance line drawn; and
fi nally, evaluating the global equity of the border resulting from the fi rst two
stages, verifying if there is a marked disproportionality between the length of
the relevant coasts and the maritime areas therein; - agree with regard to the
selection of base points, except in two issues:
40 International Court of Justice. Territorial and Maritime Dispute (Nicaragua v. Colombia):
Judgment, I.C.J., 19 November, Reports 2012 (II), paragraph 163).
41 International Court of Justice. Maritime Delimitation in the Caribbean Sea and the Pacifi c
Ocean (Costa Rica V. Nicaragua) and Land Boundary in the northern part of Isla Portillos
(Costa Rica V. Nicaragua). Judgment, I.C.J., 2 February, Reports 2018, paragraphs 118-119.
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First, that Costa Rica, while acknowledging that in the territorial and ma-
ritime dispute between Nicaragua and Colombia, the Corn Islands had full
effect on the delimitation, argued that in this case, the delimitation was di-
fferent, because it referred to “the opposite coasts of opposite islands” and
not adjacent coasts, thus opposing the placement of base points on them.
Nicaragua, on the other hand, argued that, considering the proximity of Corn
Islands to the continent, “to ignore them as base points” would have meant
erasing an integral component of the coast of Nicaragua from the map, since
these islands were capable of generating an exclusive economic zone and a
continental shelf42.
Second, Costa Rica argued that the base points should not be located in
the small insular features located along the coast, such as Paxaro Bovo and
Palmenta Cays, and stressed that the islets, cays and rocks do not generate
rights to an exclusive economic area or continental shelf. On the contrary,
Nicaragua argued that these maritime features can provide baselines for the
construction of the provisional equidistance line, because they are “fringe
islands” that “form an integral part of the Nicaraguan coast”43.
Both Parties believed that an adjustment of the provisional equidistance
line was necessary for the delimitation of the exclusive economic zone and
the continental shelf, but supported their claim on different circumstances.
Nicaragua argued that it would suffer a cutting effect caused by “the convex
and northern-oriented nature of the coast of Costa Rica in Punta Castilla,
immediately adjacent to the concave coast of Nicaragua”, hence the need
to adjust the line to achieve an equitable result. Costa Rica contested Nica-
ragua’s argument, because the convexity and concavity invoked could not be
characterized as “marked” and, although it was inevitable, it did not consider
it unfair44.
With regard to the starting point of the maritime delimitation in the Pa-
cifi c Ocean, Costa Rica and Nicaragua agreed that it was the midpoint of
the closure line of Salinas Bay, and that the closure line was the one taken
42 Ibid., paragraphs 138-139.
43 Ibid., paragraph 141.
44 Ibid., paragraphs 147-149.
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between Punta Zacate, in Costa Rican territory, and Punta Arranca Barba, in
Nicaraguan territory45.
However, in order to establish the mid-line in the territorial sea, Costa
Rica selected a series of base points on some islets just off Punta Zacate and
Punta Descartes, as well as two other points located on a protrusion towards
the sea on the peninsula of Santa Elena, called Punta Blanca. Nicaragua ar-
gued that the confi guration of the coast, in the vicinity of Salinas Bay, was
a special circumstance that requires the Court to adjust the equidistance line
in the territorial sea. It understood that the peninsula of Santa Elena had a
distortion effect on the line of equidistance, since it began at the fi rst turning
point, controlled by the base points on Punta Blanca, which notably cuts
Nicaraguan coastal projections in the territorial sea. Consequently, Nicaragua
requested that the Court adjust the equidistance line by deducting the base
points on the Santa Elena Peninsula that would cause the boundary to be
diverted to the coast of Nicaragua46.
The Parties also disagreed as to whether the confi guration of the coast
constitutes a special circumstance in terms of Article 15 of the UNCLOS,
which would justify an adjustment of the provisional middle line in the terri-
torial sea. The problem is whether the location of base points on the Santa
Elena Peninsula has a signifi cant distorting effect on the provisional median
line, which would result in a cut-off of the coastal projections of Nicaragua
within the territorial sea47.
For the purpose of delimiting the maritime boundary for the exclusive
economic zone and the continental shelf in the Pacifi c Ocean, and aware of
the methodology established by the Court, each Party elaborated its argu-
ments regarding the relevant coasts and the relevant area or zone. Costa Rica
argued that the entire Nicaraguan coast, from Punta Arranca Barba to Punta
Cosigüina, is relevant for the purposes of delimitation in the Pacifi c Ocean.
It also argued that its own relevant coastline was divided into two parts. That
which extended from Punta Zacate to Cabo Blanco in the Nicoya Peninsula,
and from Punta Herradura to Punta Salsipuedes.
45 Ibid., paragraph 169.
46 Ibid., paragraphs 170-171.
47 Ibid., paragraph 174.
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Nicaragua argued that its relevant coast in the Pacifi c Ocean goes from
Punta La Flor in Salinas Bay, to Corinto Point. With regard to the relevant
coast of Costa Rica, Nicaragua maintains that it includes only the coast from
Punta Zacate in the Bay of Salinas to Punta Guiones in the Nicoya Peninsu-
la48.
Regarding the relevant area, Costa Rica argued that maritime areas should
be considered relevant for the purposes of delimitation only if both Parties
have a potential right over them. Similarly, it argued that while the identifi ca-
tion of the relevant area does not need to be exact, it identifi ed the relevant
area with the use of radial projections. In this case, a relevant area enclo-
sed within a 200-nautical-mile radius envelope of arcs was produced, which
identifi es the area of potential rights superimposed between the Parties, and
borders to the north on a straight line that begins at Punta Cosigüina and
perpendicular to the direction of the Nicaraguan coast49.
Nicaragua agreed with Costa Rica that the relevant area is identifi ed by
reference to the areas in which the possible maritime rights of the Parties
overlap. However, it argued that the relevant area should be identifi ed throu-
gh the use of frontal coastal projections. Consequently, Nicaragua suggests
that the relevant area should be bounded by the 200 nautical mile limits of
the exclusive economic zones of the Parties in the west, by a line perpendicu-
lar to the general direction of the Costa Rica coast between Cabo Velas and
Punta Scripts and starting at Punta Guiones in the south, and by a line per-
pendicular to the general direction of the coast of Nicaragua starting from
the point of Corinth in the north50.
To draw the provisional equidistance line in the exclusive economic zone
and on the continental shelf, Costa Rica identifi ed on its own coast a series
of base points in the peninsula of Santa Elena, located in the characteristics
named Punta Blanca and Punta Santa Elena. In addition, Costa Rica indi-
cated a base point on the Nicoya Peninsula, located at Cabo Velas, which
controls the provisional equidistance line, beginning at a point approximately
120 nautical miles from the Parties coast. On the coast of Nicaragua, Costa
Rica identifi es a series of base points in the vicinity of Punta Sucia, Punta Pie
48 Ibid., paragraphs 176-178.
49 Ibid., paragraph 182.
50 Ibid., paragraph 183.
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del Gigante and Punta Masachapa. In this way, Costa Rica maintains that its
provisional equidistant line and the provisional equidistant line in Nicaragua
are not materially different51.
Nicaragua agreed that the base points selected by Costa Rica on the Nica-
raguan coast faithfully refl ect the macro-geography of the area. However, Ni-
caragua points out that, were it not for the existence of the Nicoya Peninsula,
the provisional equidistance line would be essentially perpendicular to the
general direction of the Parties’ coast. However, the provisional equidistance
line of Nicaragua did not differ from that suggested by Costa Rica52.
Costa Rica maintained that there is no relevant circumstance that could
justify an adjustment of the provisional equidistance line in the Pacifi c Ocean.
It argued that although the Santa Elena Peninsula and the Nicoya Peninsula
are signifi cant geographical features, they were not capable of producing an
unequal effect by distorting the provisional equidistance line to the detriment
of Nicaragua. Likewise, it argued that the disparity between the length of
the relevant coasts of the Parties was not suffi ciently marked to require the
adjustment of the provisional equidistance line, and that there was no coastal
concavity that unequally disrupted the coastal projections of Nicaragua53.
Conversely, Nicaragua argued that the provisional equidistance line in the
Pacifi c Ocean produced a marked and unjustifi ed cut of its coastal projec-
tions, since the direction of the coasts of the peninsula of Santa Elena and
the Nicoya peninsula does not correspond to the general direction of the
coast of Costa Rica. Nicaragua considered that the placement of base points
in these characteristics led to a provisional equidistance line that deviated to
the north, thus cutting its coastal projections and excessively distorting the
provisional equidistance line if it were not adjusted. Hence, Nicaragua argued
that an equitable solution with respect to the exclusive economic zone and
the continental shelf could be achieved by giving effect to half of both the
Santa Elena peninsula and the Nicoya peninsula54.
51 Ibid., paragraph 186.
52 Ibid., paragraph 187.
53 Ibid., paragraph 190.
54 Ibid., paragraph 191.
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VI. THE COURT’S PRONOUNCEMENTS
In the fi rst place, the Court emphasized that “the principle of res judicata,
as refl ected in articles 59 and 60 of its Statute, is a general principle of law
that protects, at the same time, the judicial function of a court or tribunal
court and the Parties in a case that has resulted in a fi nal judgment without
appeal55.” However, for the res judicata to be applied in a specifi c case, the
Court, as it pronounced in the cases of the delimitation of the continen-
tal shelf between Nicaragua and Colombia, beyond 200 nautical miles from
the Nicaraguan coast56, and in the case concerning the application of the
Convention for the Prevention and Punishment of the Crime of Genocide,
“must determine whether the fi rst claim has been defi nitively resolved yet”,
since, if this has not actually been determined, neither expressly nor by ne-
cessary implication, no force of res judicata can be applied57.
Similarly, the Court recalls that the operative part of its 2015 judgment
established that Costa Rica had sovereignty over the territory in dispute, as
defi ned in paragraphs 69-70 of that Judgment58. The term “disputed terri-
tory” was described in those paragraphs as “the northern part of Isla Porti-
llos, that is, the wetland area of about 3 square kilometers between the right
bank of the disputed channel, the right bank of the San Juan River up to its
mouth in the Caribbean Sea and the Harbor Head Lagoon”. However, the
Court noted that the territory in dispute “does not refer specifi cally to the
55 , E. “La cosa juzgada en las sentencias de la Corte Internacional de Justicia,
en las disputas de Nicaragua contra Colombia y de Perú contra Chile”, La arquitectura del
ordenamiento internacional y su desarrollo en materia económica (E. Tremolada editor), Universidad
Externado de Colombia, Bogotá, 2015 pp. 83-102.
56 Corte Internacional de Justicia. Cuestión de la delimitación de la plataforma continental
entre Nicaragua y Colombia más allá de 200 millas náuticas de la costa nicaragüense (Nic-
aragua, Colombia), Excepciones preliminares, Sentencia, ICJ Reports 2016, pages 125-126,
paragraphs 58-60.
57 Corte Internacional de Justicia. Asunto relativo a la aplicación de la Convención para la
Prevención y la Sanción del Delito de Genocidio (Bosnia y Herzegovina v. Serbia y Monte-
negro), Sentencia, ICJ Reports 2007 (I), page 95, paragraph 126.
58 International Court of Justice. Certain Activities Carried Out by Nicaragua in the Border
Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan
River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, pages 697 & 740, paragraphs
69 & 229.
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stretch of coastline bordering the Caribbean Sea between the Harbor Head
Lagoon, which both Parties consider to be Nicaraguan, and the mouth of the
San Juan River”59.
The Court also recalled that the Parties on that occasion “did not address
the issue of the precise location of the mouth of the river, nor did they pro-
vide detailed information on the coast. Neither of the Parties requested that
the Court defi ne the limit with greater precision with respect to this coast.
As a consequence, the Court will abstain from doing so”60. Thus, making it
clear that no decision had been made in its 2015 judgment on the question
of sovereignty over the coast of the northern part of Portillo Island, since it
had been expressly excluded, so it was not possible that the sovereignty issue
regarding that part of the coast were res judicata.
Similarly, in its 2015 judgment, the Court interpreted that the Treaty of
1858 stipulated that “the territory under Costa Rica’s sovereignty extends to
the right bank of the San Juan Inferior river until it reaches the Caribbean
Sea”61. However, the absence of “detailed information”, which had been ob-
served in the 2015 judgment, had left the geographical situation of the area in
question unclear with respect to the confi guration of the coast of Isla Porti-
llos, in particular with respect to the existence of characteristics on the coast
and the presence of a channel that separates the wetland from the coast.
Hence, the need for an evaluation carried out by the experts appointed by
the Court and that was not contested by the Parties, dispelling any uncertainty
about the current confi guration of the coast and the existence of a channel
that connects the San Juan River with the Lagoon Harbor Head. Experts
stated, among other things, that there was no longer a water channel connec-
ting the San Juan River with Harbor Head Lagoon. As there was no channel,
there could be no limit running along it, dismissing Nicaragua’s claim that
“the limit should continue to be defi ned by the approximate location of the
previous channel”, since it ignored the fact that the channel in question, as it
existed at the time of the Alexander awards, was to the north of the current
beach and, as the experts pointed out, had been submerged by the sea, due
to coastal recession. Therefore, the Court determined that Costa Rica has
59 Ibid., paragraph 70.
60 Ibid.
61 Ibid., page 703 paragraph 92.
The Land and Maritime Delimitation of the Court of The Hague in the Affairs of Costa Rica v. Nicaragua, in
Light of their Proposals (February 2, 2018)
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sovereignty over all of Portillos Island, up to the point where the river rea-
ches the Caribbean Sea. It added that this and the 2015 trial showed that the
starting point of the land limit was the point where the right bank of the San
Juan River reaches the low-water line of the Caribbean coast. A point that is
currently at the end of the sandy area that constitutes the right bank of the
San Juan River at its mouth62.
However, as indicated in the 2015 trial, the Parties agreed that Nicaragua
had sovereignty over Harbor Head Lagoon63, which is why Costa Rica re-
quested that the Court determine the precise location of the land limit that
separates both ends of the sandbank, and in doing so, also determine that the
only Nicaraguan territory existing today in the area of Isla Portillos is limited
to the Los Portillos - Harbor Head Lagoon enclave.
In relation to the sandbar that separates the lagoon from the Caribbean
Sea, the experts established that although there are temporary channels in the
barrier, it is above the water level, even at high tide. This expertise was not
contested by the Parties and helped the Court to understand that the Parties
agreed that both Harbor Head Lagoon and the sandbank that separates it
from the Caribbean Sea are under the sovereignty of Nicaragua64.
On the alleged violations of Costa Rica’s sovereignty, the Court noted
that the experts have established that the edge of the northwestern end of
the Harbor Head lagoon is located to the east of the site of the military camp.
Thus, the Court concludes that the military camp was placed by Nicaragua
on the beach near the sandbar, but not on it. The installation of the camp
thus violated the territorial sovereignty of Costa Rica, hence its withdrawal.
However, it was specifi ed that Nicaragua did not breach the 2015 judgment
because, as noted above, the limit with respect to the coast had not been de-
fi ned on that occasion. Therefore, the Court considered that the declaration
62 International Court of Justice. Maritime Delimitation in the Caribbean Sea and the Pacifi c
Ocean (Costa Rica V. Nicaragua) and Land Boundary in the northern part of Isla Portillos
(Costa Rica V. Nicaragua). Judgment, I.C.J., 2 February, Reports 2018, paragraph 71
63 International Court of Justice. Certain Activities Carried Out by Nicaragua in the Border
Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan
River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, page 697, paragraph 70.
64 International Court of Justice. Maritime Delimitation in the Caribbean Sea and the Pacifi c
Ocean (Costa Rica V. Nicaragua) and Land Boundary in the northern part of Isla Portillos
(Costa Rica V. Nicaragua). Judgment, I.C.J., 2 February, Reports 2018, paragraphs 72-73.
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of a violation of the sovereignty of Costa Rica and the order addressed to
Nicaragua to withdraw its camp from the territory constituted an adequate
reparation65.
The Court recalled that the point of departure of the land boundary
is normally used to determine the starting point of maritime delimitation.
However, given that the point of departure of the land border in this case
is currently at the end of the sandy area bordering the San Juan River where
the river reaches the Caribbean Sea and -in accordance with the designated
experts’ indication- the great instability of the coastline in the area of the
mouth of the San Juan River, prevented the identifi cation in the sandbox of a
fi xed point that was suitable as a starting point for the maritime delimitation,
the Court preferred to select a fi xed point at sea and connect it to the starting
point on the coast using a mobile line. Taking into account the fact that the
phenomenon that characterizes the coast at the mouth of the San Juan River
is the recession caused by the erosion of the sea, it was considered appropria-
te to place a fi xed point in the sea at a distance of 2 nautical miles from the
coast in the middle line66.
The Court, in accordance with the agreement of the Parties and its juris-
prudence in matters of maritime delimitation and territorial issues between
Qatar and Bahrain67 and territorial and maritime dispute between Nicaragua
and Honduras68, proceeded in two stages for the delimitation of the territo-
rial sea. First, it established a provisional middle line; and second, it conside-
red whether there were special circumstances that justifi ed the adjustment of
said line.
The Court constructed the provisional middle line to delimit the territo-
rial sea only on the basis of points located on the natural coast, which may
include points located on islands or rocks. The points used were landmarks
65 Ibid., paragraphs77-78.
66 Ibid., paragraph 86.
67 Corte Internacional de Justicia. Delimitación marítima y cuestiones territoriales entre Qatar
y Bahrein (Qatar v. Bahrein), Fondo, Sentencia, ICJ Reports 2001, page 94, paragraph 176.
68 International Court of Justice. Case concerning Territorial and Maritime dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras). Judgment, I.C.J., 8
of October 2007, Reports 2007 (II), page 740, paragraph 268.
The Land and Maritime Delimitation of the Court of The Hague in the Affairs of Costa Rica v. Nicaragua, in
Light of their Proposals (February 2, 2018)
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located on solid ground and therefore have a relatively higher stability than
the points placed on the sandy features.69
Regarding whether there were special circumstances that justifi ed the ad-
justment of said line, the Court considered two special circumstances: fi rst
one, the high instability and narrowness of the sandy area near the mouth of
the San Juan River, which constitutes a barrier between the Caribbean Sea
and important territory belonging to Nicaragua, which did not allow it to
select a base point in that part of the Costa Rican territory. For this reason, it
opted for a fi xed point at sea, in the middle line, connected by a mobile line
to whichever point on the mainland of the Costa Rican coast that is closest
to the mouth of the river. A point that, by the way, had been identifi ed by the
designated experts and recognized as the situation of the coast at that time70.
The second special circumstance considered by the Court for the delimi-
tation of the territorial sea was the instability of the sandbar that separates
the Harbor Head lagoon from the Caribbean Sea and its situation as a small
enclave within the territory of Costa Rica. Refl ecting on this, it concluded
that if territorial waters were attributed to the enclave, they would be of little
use for Nicaragua, while breaking the continuity of the territorial sea of Cos-
ta Rica. This consideration was decisive in the delimitation in the territorial
sea, since it did not take into account any right that could result from the
enclave71.
Regarding the delimitation of the exclusive economic zone and the conti-
nental shelf, the Court considered the entire continental coast of Costa Rica
relevant - coinciding with the Parties - and the continental coast of Nicaragua
to Punta Gorda in the north, where the coast shows a signifi cant infl ection.
At the same time, it rejected the inclusion of the coasts of the Corn Islands
and the Pearl Cays as relevant, because of the way in which the former are
projected and the absence of evidence of human habitability with respect to
the latter.
Thus, and given that the relevant coasts of Nicaragua and Costa Rica are
not characterized by sinuosity, the length of the relevant coasts was measured
69 International Court of Justice. Maritime Delimitation in the Caribbean Sea and the Pacifi c
Ocean (Costa Rica V. Nicaragua) and Land Boundary in the northern part of Isla Portillos
(Costa Rica V. Nicaragua). Judgment, I.C.J., 2 February, Reports 2018, paragraph 100.
70 Ibid., paragraph 104.
71 Ibid., paragraph 105.
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on the basis of their natural confi guration, resulting in a total length of the
coasts of 228.8 km for Costa Rica and 465.8 km for Nicaragua, that is, a ratio
of 1: 2.04 in favor of Nicaragua72.
In relation to the relevant areas or zones, the Court considered that, with
the exception of the space allocated to Colombia in the 2012 judgment, the
area where there are overlapping projections in the north includes all mariti-
me space located at a distance of 200 nautical miles from the coast of Costa
Rica. On the other hand, in the south, the situation was more complicated,
due to the presence of claims from third States, regarding which the Court
could not pronounce:
When the areas are included solely for the purpose of roughly identif-
ying the overlapping rights of the Parties in the case, which may be consi-
dered to constitute the relevant area - and which will eventually participate
in the fi nal stage of tests of disproportionality -, the rights of third parties
cannot be affected73.
As indicated in the territorial and maritime dispute of Nicaragua versus
Colombia, the Judgment of the Court could only address the maritime boun-
dary between the Parties, “without prejudice to any claim by a third State or
any claim that any of the Parties may have against a third State”74. In other
words, the ruling could refer to those claims, but could not determine whe-
ther they are well founded75.
Based on the above, the Court observed that the 1976 Treaty between
Panama and Colombia involved third States and could not be considered
relevant for the delimitation between the Parties. Similarly, with respect to
the 1977 Treaty between Costa Rica and Colombia - not ratifi ed - the Court
specifi ed that there was no evidence of a Costa Rican waiver of its maritime
72 Ibid., paragraphs 111-114.
73 Corte Internacional de Justicia. Delimitación marítima en el mar Negro (Rumania c. Ucra-
nia). Sentencia, I.C.J. Reports 2009, page 100, paragraph 114.
74 International Court of Justice. Territorial and Maritime Dispute (Nicaragua v. Colombia):
Judgment, I.C.J., 19 November, Reports 2012 (II), paragraph 228.
75 International Court of Justice. Maritime Delimitation in the Caribbean Sea and the Pacifi c
Ocean (Costa Rica V. Nicaragua) and Land Boundary in the northern part of Isla Portillos
(Costa Rica V. Nicaragua). Judgment, I.C.J., 2 February, Reports 2018, paragraphs 120-123.
The Land and Maritime Delimitation of the Court of The Hague in the Affairs of Costa Rica v. Nicaragua, in
Light of their Proposals (February 2, 2018)
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rights, and if it had ever occurred, it would certainly not have intended to be
effective with respect to a State other than Colombia76.
In order to defi ne the single maritime boundary relative to the exclusive
economic zone and the continental shelf, the Court was to “achieve an equi-
table solution” in accordance with Articles 74 and 83 of the UNCLOS. Once
again, it used its established three-step methodology. It provisionally drew
an equidistant line, using the most appropriate base points, then considered
whether there were relevant circumstances that justifi ed an adjustment of the
equidistance line drawn, and fi nally evaluated the overall equity of the fron-
tier resulting from the fi rst two stages, verifying whether there was a marked
disproportionality between the length of the relevant coasts and the maritime
areas that were in them77.
This required a previous clarifi cation from the Court, with respect to the
most appropriate base points. The conclusion was that they could be placed
in the Corn Islands, to construct a line of provisional equidistance, given
that these islands have a signifi cant number of inhabitants and maintain eco-
nomic life, largely satisfying the requirements set forth in article 121 of the
UNCLOS78.
Palmenta Cays, a group of marginal islands bordering the Nicaraguan
coast, and Paxaro Bovo, a rock located 3 nautical miles off the south coast of
Punta del Mono, were considered appropriate by the Court to place baselines
in both features and construct the provisional equidistance line79. The Court
reached this conclusión, recalling the relevance it also gave to a group of
76 Ibid., paragraph 134.
77 Corte Internacional de Justicia. Delimitación marítima en el mar Negro (Rumania c. Ucra-
nia). Sentencia, I.C.J. Reports 2009, pages 101-103, paragraphs 115-122. International Court
of Justice. (2012). Territorial and Maritime Dispute (Nicaragua v. Colombia): Judgment,
I.C.J., 19 November, Reports 2012 (II), pages 695-696, paragraphs 190 -193. Corte Interna-
cional de Justicia. (2014). Disputa marítima (Perú c. Chile), Sentencia, ICJ Reports 2014., page
65, paragraph 180.
78 International Court of Justice. Maritime Delimitation in the Caribbean Sea and the Pacifi c
Ocean (Costa Rica V. Nicaragua) and Land Boundary in the northern part of Isla Portillos
(Costa Rica V. Nicaragua). Judgment, I.C.J., 2 February, Reports 2018, paragraph 140.
79 Ibid., paragraph 142.
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marginal islands in the maritime delimitation in the Black Sea, where such
formations could be assimilated to the coast80.
The Court, for the adjustment or displacement of the equidistance line,
fundamentally considered the effect that should be given to the Corn Islands
in the determination of the maritime boundary. It concluded that, although
they have the right to generate an exclusive economic zone and a continental
shelf, they are located at approximately 26 nautical miles from the continental
coast and their impact on the provisional equidistance line is disproportio-
nate to their limited size81. Thus, based on indications from the International
Tribunal for the Law of the Sea in the delimitation of the maritime boundary
in the Bay of Bengal:
The effect that will be given to an island in the delimitation of the ma-
ritime boundary in the exclusive economic zone and the continental shelf
depends on the geographical realities and circumstances of each specifi c
case. There is no general rule in this regard. Each case is unique and requires
specifi c treatment; the ultimate goal is to reach a solution that is fair82.
It resolved that, given its limited size and signifi cant distance from the
continental coast, the Corn Islands would only enjoy half of the effect, pro-
ducing an adjustment of the equidistance line in favor of Costa Rica83.
The Court dismissed Nicaragua’s alleged combination of a convex coast
of Costa Rica near Punta de Castilla and its own concave coast, since it had
a limited effect on the border line, not being signifi cant enough to justify an
adjustment of the line. In the same way, the general concavity of the Costa
80 Corte Internacional de Justicia. Delimitación marítima en el mar Negro (Rumania c. Ucra-
nia). Sentencia, I.C.J. Reports 2009, page 109, paragraph 149.
81 , J. “Fronteras marítimas y tribunales internacionales: la delimitación marítima a
la luz de la jurisprudencia del Tribunal Internacional del Derecho del Mar”, Gobernanza, coop-
eración internacional y valores democráticos comunes (E. Tremolada editor), Universidad Externado
de Colombia, Bogotá, 2019, pp. 105-123
82 Tribunal Internacional para el Derecho del Mar. Delimitación de la frontera marítima en
la bahía de Bengala (Bangladesh / Myanmar). Sentencia, ITLOS Reports 2012, page 86, para-
graph 317.
83 International Court of Justice. Maritime Delimitation in the Caribbean Sea and the Pacifi c
Ocean (Costa Rica V. Nicaragua) and Land Boundary in the northern part of Isla Portillos
(Costa Rica V. Nicaragua). Judgment, I.C.J., 2 February, Reports 2018, paragraphs 153-154.
The Land and Maritime Delimitation of the Court of The Hague in the Affairs of Costa Rica v. Nicaragua, in
Light of their Proposals (February 2, 2018)
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Rican coast and its relations with Panama could not justify an adjustment of
the equidistance line in its relations with Nicaragua84.
Finally, regarding the third stage, the Court had to verify whether there
was a signifi cant disproportionality. This aspect was linked to the Court’s
assessment that it should rule in terms of the general geography of the area:
“this continues in each case to be a question of the Court’s appreciation; it
will rule in reference to the general geography of the area”85.
In addition, the Court - as evidenced by the issues of maritime delimita-
tion in the Black Sea and the territorial and maritime dispute between Nicara-
gua and Colombia – has no intention of making precise calculations, bearing
in mind that what it seeks is an equitable delimitation: “The calculations of
the relevant area are not intended to be precise, but rather merely approxima-
te and the purpose of delimitation is to achieve a delimitation that is equita-
ble, not an equitable distribution of maritime areas”86.
Thus, the tendency of the Court is not to apply a principle of strict pro-
portionality. The maritime delimitation is not designed to produce a corre-
lation between the lengths of the relevant coasts of the Parties and their
respective quotas of the relevant area. What the judges seek is to verify a sig-
nifi cant disproportionality87. Hence, for this case and at this stage of delimita-
tion, the Court endeavored to ensure that there is no disproportion so serious
as to corrupt the result in such a way that it would become inequitable88.
Based on the above, the Court estimated the relevant area by dividing
the maritime boundary of 73,968 square kilometers of Nicaragua among the
30,873 square kilometers of Costa Rica, resulting in a ratio of 1: 2.4 in favor
of Nicaragua. It did not consider this relation of coastal lengths to show any
84 Ibid., paragraphs 155-156.
85 Corte Internacional de Justicia. Delimitación marítima en el mar Negro (Rumania c. Ucra-
nia). Sentencia, I.C.J. Reports 2009, page 129, paragraph 213.
86 Ibid., paragraphs page 100, paragraph 111 and International Court of Justice. Territorial
and Maritime Dispute (Nicaragua v. Colombia): Judgment, I.C.J., 19 November, Reports 2012
(II), paragraph 158.
87 J. A., “El Derecho internacional del Mar y su evolución incesante” La
cooperación internacional en la ordenación de los mares y océanos (J. , J. co-
ords.), Iustel, Madrid, 2008, pp. 25-40.
88 Territorial and Maritime Dispute (Nicaragua v. Colombia): Judgment, I.C.J., 19 November,
Reports 2012 (II), paragraphs 240-242.
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“marked disproportion”. Thus, it resolved that the delimitation regarding the
exclusive economic zone and the continental shelf between the Parties in the
Caribbean Sea would follow the line of equidistance as it was adjusted, given
that the result was not inequitable89.
As mentioned, and based on the agreement between the Parties, the Court
determines that the maritime boundary between Costa Rica and Nicaragua in
the Pacifi c Ocean will begin at the midpoint of the Salinas Bay closure line.
The Court, in accordance with its established jurisprudence, applied Arti-
cle 15 of the UNCLOS, fi rst drawing a provisional median line and then exa-
mining whether there were special circumstances that justifi ed its adjustment.
For the construction of the provisional middle line in the case of Costa Rica
and Nicaragua, they selected the same base points, which are found in certain
outstanding features on their coasts and saw no reason to move away from
them. Therefore, for the purpose of tracing the provisional median line in
the territorial sea, the Court located basic points on certain characteristics in
the vicinity of Punta Zacate, Punta Descartes and Punta Blanca on the Costa
Rican coast, and on certain features in the vicinity of Punta Arranca Barba,
Punta La Flor, Frailes Rocks and Punta Sucia of the coast of Nicaragua90.
Meanwhile, as the Court had pointed out in the matters of maritime de-
limitation and territorial issues between Qatar and Bahrain, the continental
shelf of the Libyan Arab Jamahiriya and Malta and that of the continental
shelf of the North Sea “islets, rocks and coastal projections” may have a dis-
proportionate effect on the midline. Such an effect may require an adjustment
of the provisional midline in the territorial sea. However, in the vicinity of
Salinas Bay, the Santa Elena peninsula cannot be considered a minor coastal
projection that has a disproportionate effect on the boundary line. The coast
of the peninsula of Santa Elena represents a large part of the Costa Rican
coast in the area in which the Court has been requested to delimit the territo-
rial sea. In addition, the adjustment proposed by Nicaragua in the territorial
89 International Court of Justice. Maritime Delimitation in the Caribbean Sea and the Pacifi c
Ocean (Costa Rica V. Nicaragua) and Land Boundary in the northern part of Isla Portillos
(Costa Rica V. Nicaragua). Judgment, I.C.J., 2 February, Reports 2018, paragraphs 165-166.
90 Ibid., paragraph 172.
The Land and Maritime Delimitation of the Court of The Hague in the Affairs of Costa Rica v. Nicaragua, in
Light of their Proposals (February 2, 2018)
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sea would push the boundary near the Costa Rican coast, which would sig-
nifi cantly reduce Costa Rica’s coastal projections within the territorial sea91.
Based on the above, the Court concluded that the territorial sea in the
Pacifi c Ocean would be delimited between the Parties by means of a median
line, beginning at the midpoint of the Salinas Bay closure line.
The Court recalled that to consider a coastline relevant for delimitation
purposes, it must generate projections that overlap with the projections of
the other party’s coastline. Since in the Pacifi c Ocean, the coast of Costa
Rica is characterized by a certain degree of sinuosity, while the coast of Ni-
caragua runs largely along a straight line, the Court considered it appropriate
to identify the corresponding coasts of both Parties by means of straight
lines and noted that the positions of the Parties do not differ signifi cantly
with respect to the identifi cation of the relevant coast of Nicaragua. Thus,
it considered that the entire Nicaraguan coast, from Punta Arranca Barba to
Punta Cosigüina, generates potential maritime rights that overlap with those
of Costa Rica. In the geographical circumstances of the present case, this
conclusion does not change if the potential maritime rights are generated
by the radial projection method or by the frontal projections method. The
length of the relevant coast of Nicaragua, identifi ed and measured, is 292.7
kilometres long92.
As the parties’ arguments regarding Costa Rica’s relevant coastline diffe-
red signifi cantly, the Court considered that Costa Rica’s coastline between
Punta Guiones and Cabo Blanco, as well as between Punta Herradura and
Punta Salsipuedes, generates potential overlapping maritime rights with those
of the corresponding coast of Nicaragua. It also considered it was appropria-
te to include certain parts of the Costa Rican coast south of Punta Guiones
within the relevant coast. It also observed that the coasts of the Gulf of
91 Corte Internacional de Justicia. Delimitación marítima y cuestiones territoriales entre Qatar
y Bahrein (Qatar v. Bahrein), Fondo, Sentencia, ICJ Reports 200, page 114, paragraph 246.
Corte Internacional de Justicia. Plataforma continental (Jamahiriya Árabe Libia / Malta),
Sentencia, ICJ Reports 1985, page 48, paragraph 64. Corte Internacional de Justicia. Platafor-
ma continental del mar del Norte (República Federal de Alemania / Dinamarca, República
Federal de Alemania / Países Bajos), Sentencia, ICJ Reports 1969, page 36, paragraph 57.
92 International Court of Justice. Maritime Delimitation in the Caribbean Sea and the Pacifi c
Ocean (Costa Rica V. Nicaragua) and Land Boundary in the northern part of Isla Portillos
(Costa Rica V. Nicaragua). Judgment, I.C.J., 2 February, Reports 2018, paragraphs 179-180.
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Nicoya face one another and consider that they are not relevant for delimi-
tation purposes. The Court concludes that the fi rst segment of the relevant
coast of Costa Rica runs along the straight lines that connect Punta Zacate,
Punta Santa Elena, Cabo Velas, Punta Guiones and Cabo Blanco. The second
segment of the relevant coast of Costa Rica extends along the straight lines
that connect Punta Herradura, the Osa Peninsula, Punta Llorona and Punta
Salsipuedes, resulting in a corresponding coast of Costa Rica, along straight
lines, with a length of 416.4 kilometres93.
The Court recalled that the relevant area, whose identifi cation is part of
the established maritime delimitation methodology, includes the maritime
spaces in which the potential rights generated by the Parties’ coasts are supe-
rimposed. In the case, the Court considered that both the potential maritime
rights generated by the north coast of Costa Rica, and the possible maritime
rights generated by the southern coast of Costa Rica, overlap with the pos-
sible maritime rights generated by the corresponding coast of Nicaragua.
Thus, the Court considered that the relevant zone borders the north with a
line that begins at Punta Cosigüina and that is perpendicular to the straight
line that approaches the general direction of the coast of Nicaragua. In the
west and in the south, the relevant area is limited by the envelope of arcs that
marks the boundaries of the area in which the potential maritime rights of
the Parties overlap. It specifi ed that the coast that extends from Cabo Blanco
in the northeast to the Gulf of Nicoya and up to Punta Herradura does not
generate potential maritime rights that overlap with those generated by the
coast of Nicaragua. Therefore, the Court considers that the maritime area
toward land, of the line between Cabo Blanco and Punta Herradura and that
corresponds approximately to the waters of the Gulf of Nicoya is not part
of the relevant area for the purposes of delimitation. The relevant area that it
identifi ed measures approximately 164,500 square kilometers94.
The Court agreed that the base points selected by the Parties are appro-
priate for drawing a provisional equidistant line in the Pacifi c Ocean. Thus, a
provisional equidistance line for the exclusive economic zone and the conti-
93 Ibid., paragraph 181.
94 Ibid., paragraphs 184-185.
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nental shelf will begin at the end of the border in the territorial sea, and from
there will follow a series of geodesic lines joining the points95.
The Court emphasized that the arguments of the Parties regarding the
adjustment of the provisional equidistance line related to two different issues:
fi rst, whether the existence of the Santa Elena peninsula results in an inequi-
table cut in the coastal projections of Nicaragua; second, if the existence
of the Nicoya Peninsula similarly creates an inequitable cut of Nicaragua’s
coastal projections. Thus, it concludes that the Santa Elena peninsula is a
protrusion that is close to the point of departure of the maritime border
between the Parties and that as it had verifi ed, the effect it produces within
the territorial sea does not justify an adjustment of the provisional median
line within the 12 nautical miles. However, it stated that the situation was
different for the exclusive economic zone and the continental shelf, whose
base points located on the Santa Elena peninsula controlled the course of the
provisional equidistance line from the 12 nautical mile limit of the territorial
sea to a point located approximately 120 nautical miles from the coasts of
the Parties, considering that such base points have a disproportionate effect
in the direction of the provisional equidistance line. The Court also considers
that, beyond the territorial sea, the effect of the Santa Elena peninsula on
the provisional equidistance line results in a signifi cant cutoff of the coastal
projections of Nicaragua; a court effect that was not equitable96.
For these reasons, the Court considered it appropriate to adjust the provi-
sional equidistance line for the exclusive economic zone and the continental
shelf, specifying - as it did in the territorial and maritime dispute of Nicaragua
against Colombia - that any adjustment made to remedy an inequitable cut to
Nicaragua’s detriment should not create an inequitable cut to the detriment
of Costa Rica (International Court of Justice, 2012, paragraph 216). As an
appropriate method to achieve an equitable solution and to reduce the limit
of coastal projections created by the presence of the Santa Elena Peninsula,
it welcomed Nicaragua’s argument giving half of its effect to that peninsula97.
Regarding the Nicoya peninsula - a large landmass, which corresponds to
one seventh of the territory of Costa Rica, and a large population – , it is a
95 Ibid., paragraphs 188-189.
96 Ibid., paragraphs 192-193.
97 Ibid., paragraph 194.
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prominent part of the continent of Costa Rica, which the Court understood
could not be given any less than a total effect, when delimiting the boundary
in the exclusive economic zone and on the continental shelf98.
Finally, regarding the test of disproportionality, the Court reminded us
that the corresponding coast of Costa Rica in the Pacifi c Ocean has a length
of 416.4 kilometers and the corresponding coast of Nicaragua in the Pacifi c
Ocean has a length of 292.7 kilometers. Thus, the two relevant coasts are in a
ratio of 1: 1.42 in favor of Costa Rica. Additionally, the Court considered that
the maritime boundary established between the Parties in the Pacifi c Ocean
divides the relevant area in such a way that approximately 93,000 square kilo-
meters of that area correspond to Costa Rica and 71,500 square kilometers
of that area belongs to Nicaragua. The relation between the maritime areas
found for the Parties is 1: 1.30 in favor of Costa Rica99.
VII. CONCLUSIONS
This resolution - in principle - should be the epilogue to the multiple con-
troversies that have arisen between Costa Rica and Nicaragua, which ends up
clarifying any doubts that may have remained regarding territorial sovereignty
and limits between them. However, good faith is a principle of international
relations that is not always practiced. From a legal perspective, and in light
of the proposals of the Parties, the statements of the International Court of
Justice establish and ratify precedents in the matter of territorial and mariti-
me disputes100, as follows:
First, regarding the application of res judicata, specifying - as it already
had in the case of Nicaragua against Colombia over the extended continental
shelf – that it must be determined whether in the fi rst proceeding everything
that was debated was defi nitively resolved, since, if this has not actually been
determined, neither expressly nor by necessary implication, no force of res
judicata can be applied.
98 Ibid., paragraphs 195-196.
99 Ibid., paragraph 202.
100 Sobrino Heredia, J. M., “La mar, un escenario abierto”, Mares y Océanos en un mundo en
cambio: Tendencias jurídicas, actores y factores (J. M. coord.), Tirant lo Blanch,
Valencia, 2007, pp. 23-37.
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Second, in relation to the violation of the Costa Rica’s sovereignty by
installing a Nicaraguan military camp, it was determined that this did exist,
its withdrawal was ordered, but it was made clear that the 2015 judgment was
not ignored, precisely because the limit with respect to the coast had not been
defi ned (judged) on that occasion. Hence, the withdrawal order addressed to
Nicaragua was to be considered an adequate reparation.
Third, the two-stage method for delimitation of the territorial sea was
reiterated by establishing a provisional middle line and then verifying whether
there were special circumstances that justifi ed the adjustment of the afore-
mentioned line, as had been established in the matters of maritime delimita-
tion and issues between Qatar and Bahrain and in the territorial and maritime
dispute between Nicaragua and Honduras.
Fourth, regarding the delimitation of the exclusive economic zone and
the continental shelf, the Court recalls the need to identify the relevant coasts
to determine the length and the resulting relationship between them. The
Court also reiterated, in accordance with the provisions of the maritime de-
limitation issue in the Black Sea101, the need to establish the relevant areas or
zones in order to approximately identify the overlapping rights of the Parties
-which will be taken into account in the disproportionality test- and the rights
of third parties that cannot be affected; the latter in accordance with that sta-
ted in the territorial and maritime dispute of Nicaragua v. Colombia in 2012.
Fifth, in order to defi ne the single maritime boundary relative to the ex-
clusive economic zone and the continental shelf, both in the Caribbean Sea
and in the Pacifi c Ocean, the Court was to “achieve an equitable solution” in
accordance with articles 74 and 83 of the UNCLOS, as had happened in the
cases of the maritime delimitation in the Black Sea102, of the territorial and
maritime dispute of Nicaragua v. Colombia103 and in the maritime dispute
of Peru v. Chile104. Thus, once again, the Court used the three-stage metho-
dology: Provisionally drew an equidistant line using the most appropriate
101 Corte Internacional de Justicia. Delimitación marítima en el mar Negro (Rumania c. Ucra-
nia). Sentencia, I.C.J. Reports 2009.
102 Ibid.
103 International Court of Justice. Territorial and Maritime Dispute (Nicaragua v. Colombia):
Judgment, I.C.J., 19 November, Reports 2012 (II).
104 Corte Internacional de Justicia. Disputa marítima (Perú c. Chile), Sentencia, ICJ Reports
2014.
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base points, considered if there were relevant circumstances that justifi ed an
adjustment of the equidistance line drawn and evaluated the overall equity of
the resulting boundary of the fi rst two stages, checking if there was a marked
disproportionality between the length of the relevant coasts and the maritime
areas that were in them.
Sixth, based on the ruling regarding the delimitation of the maritime
boundary in the Bay of Bengal, issued by the International Tribunal for the
Law of the Sea, the Court specifi ed that the effect that an island would have
on the delimitation of the maritime boundary in the exclusive economic zone
and the continental shelf would depend on the geographical realities and the
circumstances of the specifi c case. It made it clear that there is no general rule
in this respect; each case is unique and requires specifi c treatment, since the
fi nal objective is to reach a fair solution.
Seventh and last, regarding the verifi cation of the existence of a signifi -
cant disproportionality, the Court - as it did in the cases of maritime delimi-
tation in the Black Sea and the territorial and maritime dispute of Nicaragua
v. Colombia in 2012 - makes it clear that it does not intend to make precise
calculations, bearing in mind that what it seeks is an equitable delimitation.
In other words, the maritime delimitation is not designed to produce a corre-
lation between the relevant coast lengths of the Parties and their respective
quotas of the relevant area; the Court’s effort is focused on guaranteeing that
there is not a disproportion so serious as to corrupt the result in such a way
that it would become inequitable105.
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