Cablegate: Border Dispute with Nicaragua Threatens to Flare

Published: Thu 4 Aug 2005 02:02 PM
This record is a partial extract of the original cable. The full text of the original cable is not available.
C O N F I D E N T I A L SECTION 01 OF 02 SAN JOSE 001746
E.O. 12958: DECL: 08/03/2015
REF: A. 02 SAN JOSE 2260
B. 02 SAN JOSE 2589
C. 02 SAN JOSE 2818
Classified By: Charge Frederick J. Kaplan for reasons 1.4 (B) and (D).
1. (C) In an August 1 meeting with Charge and acting DCM,
Foreign Minister Roberto Tovar said that the dispute over the
navigational rights of Costa Rican police on the San Juan
River threatens again to disrupt relations between Costa Rica
and Nicaragua. Tovar noted that the three-year "truce" on
the matter was about to expire and that Costa Rica, to
preserve its rights, would have to either bring a case before
the International Court of Justice (ICJ) or convince
Nicaragua to agree to arbitration of the matter. The GOCR,
Tovar said, far preferred the latter course, which it
regarded as "less confrontational." Tovar asked that the USG
help persuade Nicaragua that an arbitrated resolution of the
issue was in the interest of both parties. End Summary.
2. (C) Foreign Minister Roberto Tovar called Charge to his
office on August 1 to discuss, he said, "Nicaragua and
CAFTA." Charge was accompanied by acting DCM and Tovar by
Costa Rican Ambassador to the OAS Javier Sancho. Tovar
explained the relationship between the Costa Rican-Nicaraguan
border dispute and the U.S.-Central American-Dominican
Republic Free Trade Agreement (CAFTA-DR) in the following
manner: If Costa Rica asserts its rights to have its police
navigate the San Juan River, the Nicaraguan National Assembly
is liable to retaliate by slapping a 35 percent tariff on
Costa Rican goods, a violation of CAFTA-DR (assuming that
both countries ratify the treaty). Relations between
Nicaraguan President Bolanos and Costa Rican President
Pacheco and between Nicaraguan Foreign Minister Norman
Caldera and Tovar are excellent, and Tovar wants to use the
existing good will in the executive branches of the two
governments to find a face-saving and permanent solution to
the San Juan problem.
3. (U) Tovar traced the history of the issue to the 1858
Treaty of Canas-Jerez. The treaty granted to Costa Rica the
territory that now constitutes the northwestern portion of
the country and to Nicaragua sovereignty over the San Juan
River (both banks). Approximately 80 miles of the
192-mile-long Nicaragua-Costa Rica boundary runs along the
right bank of the San Juan from the Caribbean Sea upstream to
a point three miles below Castillo Viejo. The treaty grants
to Costa Rica perpetual free navigation "with the object of
trade." Disagreements soon arose because Nicaragua contended
that Costa Ricans could navigate the San Juan only to move
merchandise, while the Costa Ricans claimed also the right to
commercial travel of people. In 1888, according to an
arbitral award of U.S. President Grover Cleveland, Costa Rica
could not put warships on the river but could deploy revenue
service cutters "for the protection of commerce."
4. (SBU) Today, Tovar said, the GOCR has a need to use the
river for the transport of its local police, who usually
carry side arms. They are not carrying out a law enforcement
function on the river, which is admittedly Nicaraguan
territory, but are simply using river boats as a form of
transportation from post to post. (There are few roads in
the area.) Nicaragua, however, requires Costa Rica to
request authorization, which Costa Rica believes it doesn't
need. Costa Rica was prepared to take the matter to the
International Court of Justice (ICJ), but on October 23,
2001, then-Nicaraguan President Aleman filed a motion with
the ICJ alleging that the court lacked jurisdiction over
disputes involving treaties signed by the GON before 1901.
The GOCR had one year to answer the motion. If it failed to
do so, it would forfeit the case.
5. (C) In August and September 2002, Tovar and Caldera
began working together to find a way to avoid a court battle.
Because of the difficulty of devising a permanent solution
in a short amount of time, the GOCR proposed a "truce," which
preserved the right of Costa Rica to seek ICJ intervention,
but only after three years. During this period, the GOCR and
GON intended on their own to work out their differences
regarding the San Juan River. Negotiations were hard fought,
and the agreement went through 40 drafts but was finally
signed by the GOCR and GON on September 26, 2002.
6. (C) It soon became clear, according to Tovar, that a
"political solution" to the San Juan dispute was impossible.
If there is one thing that all Nicaraguans agree on, Tovar
said, whether they are Sandanistas or Somozistas, it is that
ceding anything to Costa Rica with regard to the San Juan is
treason. At the same time, Costa Ricans cannot accept the
status quo. Therefore, having a third party decide, Tovar
believes, is the only way out. Tovar worries, however, that
a full-blown court case in the ICJ would inflame passions in
both countries and ultimately leave one country embittered.
He believes the mere filing of a Costa Rican petition in the
ICJ would provoke a highly nationalistic Nicaraguan National
Assembly and affect nearly USD 300 million in trade between
the two countries.
7. (C) Tovar's solution to the problem is arbitration,
which he deems "less confrontational" than going to court.
He thinks the arbitration could be conducted in the ICJ
itself or perhaps the Permanent Court of Arbitration. He did
not warm to Charge's suggestion of the OAS, which he seemed
to think insufficiently authoritative. The problem now is
convincing the GON. Tovar said he was sending Ambassador
Sancho to Managua in ten days to broach the subject with
Nicaraguan MFA adviser Mauricio Herdocia whom both Tovar and
Sancho believe is solid and completely trusted by Minister
8. (C) Tovar asked that the USG use its influence with the
GON to help persuade the GON of the wisdom of an arbitrated
resolution of the issue. The alternative is the
"total-warfare" atmosphere of the courtroom, which will not
serve the interests of either country. Tovar harked back to
CAFTA-DR, noting the intention of the parties of the treaty
to break down barriers between member countries and to avoid
conflict. Charge responded that he would report fully to
9. (U) Tovar is not the only one in Costa Rica worrying
about the San Juan. During a breakfast with tourism industry
leaders on July 27, Oscar Arias, the front-runner in the
February 2006 presidential election, said: "I hope I'm
mistaken, but there seems to be a very big possibility that
this controversy (San Juan) will re-emerge. I hope that
relations between the two countries don't deteriorate. I'm
going to pray that they don't. I would like our differences
not to increase so that it does not become necessary for
either party to resort to international agencies to sort out
this small conflict."
10. (C) Costa Rica and Nicaragua squandered most of the
three years allotted for finding a negotiated solution to the
San Juan controversy. Only in the last few months have there
been quiet, low-key, and almost casual discussions between
the countries about the San Juan. The first serious strategy
meeting on the subject in the Costa Rican MFA since the
agreement of 2002 was the very morning of our August 1
meeting and included Tovar, Sancho, and MFA advisers Sergio
Ugalde and Arnoldo Brenes. Their decision was essentially to
wash their hands, say it's impossible and too late to
negotiate, and the matter needs to be turned over to someone
else (an arbitrator). Three years ago (reftels), Tovar was
singing a different tune. We were skeptical then, and,
unfortunately, time has proved us right - - negotiations have
gone nowhere, in part because they never got started.
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