17 January 2014

Costa Rica and Nicaragua: A Tale of Two Rivers, Four Court Cases, Concessions and a Canal

Central American regional relations don’t often hit the international news headlines. Yet for those of us with an interest in shared responsibility it would be worth keeping an eye on Nicaragua and Costa Rica. Their often tempestuous relationship touches on many of the issues raised by the complex socio-political and historical contexts, involving interconnected and interdependent realities and a multiplicity of different actors, in which the law of international responsibility is asked to do its work. Accordingly, this blog reflects upon shared responsibility in three areas; the environment, immigration and development, in light of the role played by states and by non-state actors from international organisations as diverse as the Ramsar Secretariat and the World Bank to organised armed groups and multinational corporations.

The San Juan River and the Ramsar Convention – shared responsibility for the protection of the environment

No one other pair of states has given the International Court of Justice (ICJ) more business than Costa Rica and Nicaragua; these neighbours having faced off in The Hague no less than four times in the last 20 years.[1] Their latest skirmishes have concerned the San Juan River, a lengthy part of the southern bank of which marks the frontier between the two countries as it flows east from Lake Nicaragua towards the Caribbean Sea. Nicaragua and Costa Rica have been arguing about the San Juan for well over a century. However, the dispute which saw two sets of hearings before the ICJ in the autumn of last year has reason to catch our attention.

The border marked by the San Juan River passes through a large natural wetland area, rich in biodiversity and ecosystems. Both Costa Rica and Nicaragua have designated their respective parts of this territory as areas of international importance under the Ramsar Convention. When it was adopted in 1971 the Ramsar Convention was the first of the modern multilateral international environmental law treaties. Creating as it does a framework for international co-operation for the conservation and wise use of wetlands and their resources, it was one of the earliest recognitions of the necessity of shared responsibility.

In its application initiating proceedings, Costa Rica accused Nicaragua of, among numerous other international law violations, causing damage to protected wetlands in breach of its Ramsar obligations through its dredging of the San Juan River and construction of an artificial channel across Costa Rica’s northeast Caribbean wetland. The ICJ subsequently ordered as a provisional measure that the parties, in consultation with the Ramsar Secretariat, ‘use their best endeavours to find common solutions’ for the protection of the environment in the territory in question. Judge Sepúlveda-Amor noted in his separate opinion, advocating more extensive measures, that ‘the fact that these wetlands are interconnected means that their environmental protection requires a wider bilateral collaboration’.

However, despite the ICJ’s order, the dispute deepened. Nicaragua brought a separate claim against its neighbour, since joined to the proceedings instituted by Costa Rica, alleging that it is the latter which is breaching the Ramsar Convention by building a road along the southern bank of the San Juan. Then in September of last year Costa Rica requested new provisional measures (which were granted) on the basis that Nicaraguan authorities had started digging two new channels in the northeast Caribbean wetland causing further environmental damage. In the latest development, in its order of 13 December 2013 the ICJ rejected Nicaragua’s request for provisional measures in respect of its counterclaim. Nevertheless, it noted that during the hearings Costa Rica had acknowledged its obligation to take measures to mitigate the (transboundary) environmental harm caused by its construction works and to prevent any future such harm, and to submit an environmental impact assessment in respect of the road, with both sides declaring themselves the winner as a result. It is worth following how this dispute plays out as, with the Ramsar Convention providing a potential treaty-based framework for shared responsibility, it offers the possibility of some interesting jurisprudence and practice.

Rivers of people – shared responsibility in the immigration context

The San Juan is not the only river which runs from Nicaragua towards Costa Rica. The migration of Nicaraguans south is the third most significant inter-regional flow in Latin America and the Caribbean. The border between Costa Rica and Nicaragua is as porous in human terms as it is from an environmental perspective. However, unlike the international legal framework provided by the Ramsar Convention for the protection of the wetlands which span their territory, international law has less to tell us about the responsibility which Costa Rica and Nicaragua may share for the human population which transverses their borders.

According to official data,[2] in 2011 well over a quarter of a million Nicaraguans were living and working south of the border, representing three quarters of Costa Rica’s immigrant population. Every year many more join them, left with little choice but to abandon home and family in search of a better living in Costa Rica where Central America’s most stable economy offers higher wages and greater job security. Here, however, many face extremely poor working conditions, lack of access to basic social services and a climate of xenophobia and discrimination. Indeed, in 2006 Nicaragua sued Costa Rica before the Inter-American Commission alleging its failure to protect the human rights of Nicaraguan immigrants under its jurisdiction, although the petition was eventually dismissed on the basis that Nicaragua had failed to demonstrate that domestic remedies had been exhausted.

Countries concessioned – shared responsibility and development

While Nicaraguans originally began to emigrate during the civil war years of the 1980s, the stream of immigrants from Nicaragua to Costa Rica looks unlikely to dry up anytime soon despite the conflict having ended over 20 years ago. Even though the Nicaraguan economy is growing steadily, growth has predominantly been to the benefit of the privileged. It remains the second poorest country in the Western hemisphere behind Haiti and the proportion of Nicaraguans living on less than 2 US dollars a day has stagnated at levels of around 45 percent. While the World Bank heaps praise on his administration, President Daniel Ortega has been accused of politically exploiting the dispute over the San Juan River to distract from controversies at home (as has his counterpart Laura Chinchilla who is desperate to boost her Party’s woeful approval ratings ahead of elections in February 2014).

Despite mounting reports of evidence to the contrary, the Ortega regime continues to deny that the Contras, familiar to all students of international law, are re-arming in Nicaragua’s northern mountains. Tension has been heightened by the recent approval of a sweeping reform of the Constitution. Of particular interest from a shared responsibility perspective is that the reform constitutionalises the granting of a 50 year, 40 billion US dollar concession to Chinese entrepreneur Wang Jing’s HKND Group to build the long talked about Nicaraguan inter-oceanic canal. A characteristic shared by Costa Rica and Nicaragua is their governments’ fondness for concessions, conferring on foreign multinationals rights to carry out public works and exploit natural resources. In the case of Costa Rica, in 2011 an almost 1 billion US dollar concession, the biggest in the country’s history, was granted to Dutch multinational APM Terminals to build a new container terminal on the Caribbean coast. The concession has proved hugely controversial and is vehemently opposed by both environmental groups and workers’ unions. Indeed, such projects frequently have a devastating environmental and social impact and are causing ever-increasing social unrest throughout Central America.

Concessions raise complex questions of sovereignty and shared responsibility (particularly in the unprecedented situation of a constitutionalised concession) to which international law currently lacks answers. However, there have been some interesting recent developments. First came the precedent setting decision of a Canadian court last July that a Guatemalan indigenous community could bring proceedings directly against Canadian mining giant Hudbay Minerals in the Canadian courts in respect of human rights violations by its subsidiary in Guatemala. This was followed by a December ruling that an Ontario court can hear proceedings brought against a Canadian subsidiary of Chevron to enforce a 9 billion US dollar Ecuadorian judgment against its US parent company in respect of one of the world’s gravest environmental disasters in Ecuador’s Lago Agrio region. In November 2013, the Inter-American Commission had held a hearing to consider the responsibility of the host and home states of transnational mining companies for human rights violations in the region, at which was discussed Canada’s potential responsibility for the failure of its justice system to guarantee victims of human rights violations caused by its mining industry overseas access to justice.

Concluding remarks

Despite their limited visibility on the world stage, both Costa Rica and Nicaragua have their own rich history and culture and their peoples a proud tradition of struggle and resistance (to which it is of course impossible to do justice here). There is much to be gained from diverting our gaze in their direction once in a while.

 

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Kathryn would like to thank the Asociación Binacional de Solidaridad de los Nicaragüenses Radicados en Costa Rica for their help with this blog. For more information or to find how to express your solidarity with efforts to build a culture of tolerance, equality and respect for human rights amongst the Nicaraguan and Costa Rican communities in Costa Rica, please visit: http://binacional.wordpress.com/ or, if you’re a non-Spanish speaker, you can email Kathryn at k.j.greenman@uva.nl.



[1] Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) (2011); Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) (2010); Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) (2005); Border and Transborder Armed Actions (Nicaragua v. Costa Rica) (1986).

[2] It is important to note here that these figures are rough estimates at best as they do not, of course, include those most vulnerable of immigrants, the undocumented.

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