Dredging Up an Old Issue: Costa Rica and Nicaragua Dispute

by COHA Research Associates Nicky Pear & Alexandra Reed

As mounting tensions continue to smolder on the Korean Peninsula, another border dispute has been heating up in Central America, pitting Nicaragua against Costa Rica. Though it lacks the geopolitical gravitas and explosive nature of the conflict between North and South Korea, the standoff over a small area along the San Juan River has been the recurrent basis of a bitter and protracted affair. This deep-rooted dispute over an area of uninhabitable marshland is becoming increasingly nasty and convoluted. The historical resentment between the two neighbors blends with current political objectives that pose no small danger of bringing conflict to the region. In the January 11 – 13 opening arguments before the International Court of Justice, representatives from Costa Rica and Nicaragua pulled out all of the stops in an effort to convince the Court of the merits of their respective cases. Indeed, according to Pablo Gamez, reporting from The Hague, “the hurling of accusations” that took place during the preliminary hearings served to further strain bilateral relations between the two Central American neighbors.1

The long-standing dispute resurfaced in October when Costa Rica objected to Nicaragua dredging part of the San Juan River in preparation for the latter’s possible construction of a canal to connect the Atlantic and Pacific Oceans. According to the 1858 Cañas-Jerez Treaty, the San Juan River belongs entirely to Nicaragua. Though Costa Rican officials do not dispute Nicaragua’s sovereignty over the waterway, they object to Nicaragua’s dredging project and especially the presence of its troops on the disputed territory of Isla Calero. San José claims that this constitutes a Nicaraguan “incursion into, occupation of and use…of Costa Rican territory.” 2 Upon discovering the Nicaraguan troops on Isla Calero, Costa Rica’s initial response was to deploy police forces 3 to the border region—a move that only served to increase tensions along the river.

Though coverage of the San Juan dispute has since died down, the standoff between the Central American neighbors initially garnered a surprising amount of international media attention. The initial flurry of reporting was largely due to Nicaraguan commander Edén Pastora’s citation of Googlemaps’ demarcation of the border between Costa Rica and Nicaragua, which erroneously designated Isla Calero as Nicaraguan territory (Google subsequently revised its map). While Googlemaps’ role in the controversy certainly attracted a good deal of media attention, it should not be overstated. Indeed, Google’s role in the conflict is nothing more than a sidebar issue in the study of what is actually a long-standing boundary dispute with complex historical roots.

Relations between Costa Rica and Nicaragua have become progressively strained over the past three months, resurrecting unsavory aspects of the region’s past. Costa Rica’s President Chinchilla has, in no uncertain words, referred to Nicaragua as an “enemy.” 4 For its part, the Nicaraguan government continues to dismiss Costa Rica’s complaints, proclaiming, “Costa Rica’s falsehoods are nothing new, they have always been the same.” 5 Despite the posturing, however, there is little danger that the dispute will escalate into armed conflict, as the political and economic costs for both sides would be far too large. Nevertheless, the current standoff is now well into its third month, and a resolution remains elusive. The inability to overcome the stalemate highlights the complexity of dispute mediation mechanisms in Latin America today.

At Costa Rica’s request, the Organization of American States (OAS) made an early attempt to ameliorate tensions between the two countries by initiating a process of conflict mediation. In a November 13 resolution, approved by the majority of member states, the OAS called for both sides to remove their forces from the disputed area and to take steps to resolve the issue through peaceful bilateral discussion. On the grounds that the OAS is an inappropriate forum in which to address hemispheric territorial disputes, Nicaraguan President Daniel Ortega has repeatedly refused to accept its authority on the issue, threatening to pull out of the organization altogether rather than comply with its demands.

Costa Rica insists upon Nicaragua’s removal of its forces as a prerequisite for bilateral dialogue, a process that Nicaragua continues to resist. On November 19, as the prospects for finding a consensual method of dispute resolution looked increasingly slim, Costa Rica filed a complaint with the International Court of Justice (ICJ), where the matter is now pending. Before exploring the contemporary political causes of the conflict and its implications for international dispute resolution, it is important to take note of the historical factors at play here.

A Colonial Hangover: Uncertain Borders and a Blurred Notion of National Sovereignty

Boundary and other disputes have been an ever-present source of tension in Latin America, especially in the post-colonial era. Though very few disputes in recent history have mushroomed into full-blown war, the region remains plagued by the existence of unresolved tensions along national borders. To this day, moreover, there is a distinct lack of consensus as to the exact location of several borders in Latin America, resulting in vast areas of contested land. The origins of many of these conflicts can be traced directly to the region’s colonial legacy and, more specifically, to the inadequate post-colonial demarcation process. In Central America, for example, it was in the Spanish empire’s best interest to discourage regional integration, which would have diluted the colonial power’s monopoly on trade matters in the region. Spain’s notoriously vague Ordenanzas de Intendencias failed to concretely define the boundaries between one Central American state and the next, thus laying the foundation for future border conflicts and regional infighting in the post-colonial period. 6 In addition to the colonial powers’ desire to inhibit regional unity, dense rainforests and mountainous terrain made it logistically difficult to demarcate borders with precision.

The present standoff along the banks of the San Juan River is intimately linked to the failure to reach a consensus on borders in the early decades of Nicaraguan and Costa Rican independence. Struggling in the wake of the political ambiguities left behind by Spain when it was in the process of relaxing its colonial grip on the region, the two newly-formed Central American republics signed the Cañas-Jerez treaty in 1858. This document granted sovereignty over the disputed San Juan River to Nicaragua, while guaranteeing to Costa Rica permanent navigational rights for the “purpose of commerce” 7 over the same waters. 8 The treaty’s ambiguous use of the concept of sovereignty has led to recurring conflict over the precise authority that Nicaragua has over riverine activities. The latest falling out between the two neighbors over the interests of the San Juan is grounded in this fundamental ambiguity.

Though a 2009 ICJ ruling settled the dispute regarding navigation rights on the river, it failed to address other issues, including Nicaragua’s right to dredge the waters in question. Costa Rica has vociferously condemned the dredging process, citing concerns that Nicaragua’s ex parte approach would violate international law by inflicting serious environmental damage on fragile Costa Rican wetlands, in addition to compromising the integrity of the country’s Colorado River, a tributary of the San Juan. 9 Nicaragua, on the other hand, maintains there is no evidence that environmental damage has occurred or will occur to Costa Rican land or waterways, as a result of the operations. Moreover, Nicaragua asserts that its objective in dredging the river is simply to recover the “historical water volume of the river, so as to improve navigation for the benefit of Nicaragua’s and all other Central Americans, including Costa Ricans.” 10

Sovereignty over Isla Calero, a small land mass located in the San Juan River delta, is another issue that was not adequately addressed. Though Costa Rica claims ownership of the island (and accordingly denounces Nicaraguan troops’ current presence on it as a violation of sovereignty), Nicaraguan officials maintain that their troops are simply exercising their right to patrol territorial waters, a category into which the entire San Juan River falls. Moreover, Nicaragua cites Costa Rican officials’ recent unwillingness to cooperate with Nicaragua’s anti-drug trafficking operations as further justification for its increased military presence in the disputed area. 11 What is clear is that there remain fundamental gaps in the understanding of what rights the respective countries have on the river. The sooner the ICJ (or another appropriate international authority) can comprehensively pass judgment in this regard, the sooner the intolerable ambiguities of a colonial past can be properly overcome.

Waving the Bloody Flag: Border Disputes and Domestic Politics

Though most Latin American border disputes tend to be legacies of a colonial past, this historical causation fails to explain why these disputes erupt when they do. A flare-up of border tension is often the result of calculated efforts by elected officials to manipulate domestic factors in their favor. Indeed, when the development of an unfavorable political climate at home threatens to undermine a struggling leader’s popularity, there is nothing quite like a rousing border dispute to stir up nationalistic sentiment and channel public attention toward a common enemy. As Harvard Professor Jorge Domínguez explains, these conflicts “typically [linger] because there is domestic political support… consequently, presidents authorize such actions to update their nationalist credentials, help their party in a difficult election…or rally popular support when they have lost it for other reasons.” 12 Given the fiery, nationalistic nature of border conflicts, the domestic, political, and economic stakes of such disputes are often exaggerated. Though the conflict between Nicaragua and Costa Rica may no longer be drawing international headlines with the same tempo as before, it remains the primary foreign and domestic policy concern in both countries. In fact, despite OAS and ICJ involvement in the dispute, the confrontation’s trajectory may very well be dictated more by domestic concerns than international institutions.

At present, the continued presence of Nicaraguan troops along the San Juan appears to be unnecessarily provocative, and it should be seen in part as a manifestation of Nicaraguan intransigence. What is more, President Ortega’s attempt to evoke a spirit of populist nationalism among his constituents by keeping the conflict warmed up looks suspiciously like a preamble to his campaign for reelection in 2011. Ortega, who served his first term as president from 1985 to 1990, is seeking a way around the Nicaraguan constitution, whose present terms only allow for a maximum of two, non-consecutive presidential terms. In July of last year, Ortega was reported to have the lowest presidential approval rating in Latin America, compounded by the dire state of the country’s economy. 13 According to recent polls, the flap with Costa Rica has helped Ortega to significantly boost his previously rock-bottom ratings to 45 percent. This is partly due to the public’s positive reaction to the conflict with Costa Rica, which has served as a temporary distraction from Nicaragua’s domestic woes, as well as foreign investment of petroleum which has benefited the Nicaraguan president.

In the initial stages of the San Juan crisis, Ortega enjoyed an uncharacteristic burst of confidence from the opposition’s congressional ranks. The usually critical mainstream Nicaraguan press also rallied behind his cause in a swell of patriotism. In a conversation with COHA, the highly regarded Nicaraguan Ambassador to the U.S., Francisco Campbell, acknowledged that the particular political and emotional appeal of the dispute. He vigorously denied that Ortega was taking any advantage of the situation for personal electoral gain – or that the president was playing partisan politics for his short term goals. Campbell explained that the issue of Nicaragua’s sovereignty over the San Juan River and all that it entails is “deeply embedded in our national psyche, and the defense of it is crucial…no leader worth his salt would turn his back on this issue.” Though Ortega’s motivations for seizing on the dispute are clearly up for interpretation, the effects are not; Ortega succeeded in unifying the country momentarily under the bloody flag of nationalism, as it has not been for years.

However, in using this conflict to bolster his own numbers in the polls, by grandly rejecting OAS mediation and instead insisting that the issue be taken straight to the ICJ, Ortega may have made a fatal political error. As Nicaragua’s former Foreign Minister Francisco Aguirre Sacasa explained, “This unity that Nicaraguans have achieved, upon which Daniel Ortega has tried to capitalize, will have a relatively short duration, because in our country it is difficult to concentrate on a single issue for much time.” 14 With the matter now pending at The Hague, it may prove extremely difficult for Ortega to sustain Nicaraguan enthusiasm at its current fever pitch; the issue may well be relegated to the back burner long before the 2011 election campaign comes to a head.

The Costa Rican Factors

Costa Rican President Laura Chinchilla, on the other hand, has her own set of domestic priorities to consider. Since she took office in May, Chinchilla has struggled to project herself as a strong successor to former President Óscar Arias, especially in light of initial—and perhaps unwarranted—accusations that she was merely a puppet for the popular outgoing ex-president. This early in her presidency, Chinchilla cannot afford to appear weak to her skeptics in the face of Nicaragua’s putative aggression. Without a military, her options for response are limited to appealing to the ICJ. She has signaled to the nation that while Costa Rica will not stand for an escalation of the conflict, neither will it give in to what her defense minister has called an “absolutely indefensible” violation of Costa Rica’s territorial sovereignty and integrity. 15 In response to Ortega’s antagonism, Chinchilla has maintained that Costa Rica will remain fortified by “the strength of reason and not the strength of arms. We can’t allow ourselves to get carried away by the profound indignation that this undeserved aggression causes us. Our tools are dialogue and international law, with those we are acting.” 16

From the Costa Rican perspective, the environmental dimensions of the dispute are of particular concern. Costa Rica for many years has made a concerted effort to project an environmentally friendly image to the world in order to woo a growing eco-tourism sector and to become the first carbon-neutral country in the world. Indeed, Costa Rica made environmental concerns a top focus in its initial complaint to the ICJ, stating that “the ongoing and planned dredging and the construction of the canal will…cause further damage to Costa Rican territory, including the wetlands and national wildlife protected areas located in the region.” 17 Costa Rica can be expected to intensify this appeal to environmental concerns, making them a mainstay in its case against Nicaragua, both in The Hague and in the wider international arena.

A Muddle of Mediation

On December 7, OAS Secretary General Jose Miguel Insulza addressed the OAS’ Meeting of Consultation of Foreign Ministers in Washington D.C., with an update on the San Juan conflict. On that occasion, Insulza conceded, “there has been no progress on demarcation talks,” noting, “everything seems to indicate a Nicaraguan presence in the area with certain evidence of a military presence.” 18 The OAS’ call for a withdrawal of all military personnel from the region continues to be ignored in Managua. At the most recent meeting, the majority of OAS member states echoed the call for a military withdrawal, but Ortega’s unwillingness to engage with the regional organization has rendered it powerless to mediate the conflict.

The preliminary ICJ hearings on Costa Rica’s petition for an injunction against Nicaragua’s actions in the disputed territory concluded on January 13. During the hearings, Costa Rica’s representative, Edgar Ugalde Álvarez, warned of the “risk of serious deterioration of the conflict as a result of Nicaragua’s attitude,” especially with respect to its refusal to remove its troops from the territory in question. 19 Nicaragua’s Carlos Argüello countered by charging that Costa Rica reacts with such indiscriminate virulence “every time Nicaragua wants to use the San Juan River,”. Argüello’s charge is that Costa Rica has armed an “international scandal” over working with Nicaragua as a neighbor. 20 Having presented their respective arguments at The Hague, both countries now have no choice but to wait as the Court deliberates. The decision regarding Costa Rica’s request for the removal of Nicaraguan troops will be made at a public sitting in the coming months, though the exact date of that sitting has yet to be announced. This is, however, merely the beginning of what inevitably will be a painstakingly complex and drawn-out process; it is likely to be years before a comprehensive final judgment is handed down. 21 In the meantime, Carlos Roversi of the Costa Rican foreign ministry continues to urge Nicaragua to “suspend the work [dredging] while the process continues in the International Court of Justice, ” but to no avail. Given the impasse at the OAS and the drawn-out nature of proceedings at The Hague, the door is likely to remain open for alternative international and regional attempts to mediate or arbitrate the dispute, before the process at the ICJ runs its course.

The most recent interjection has come from Guatemala and Mexico, who announced at the Summit of Heads of State of the Central American Integration System (SICA) on December 16, their willingness to mediate the dispute. In a closed-door meeting in Cuernavaca, Mexico, earlier this week, representatives from Costa Rica, Nicaragua, Guatemala, and Mexico sat down to begin discussions on brokering a peaceful solution to the conflict. Although it is too early to judge the results of their discussions, plans for further dialogue in the near future have been drawn up. Given the current inability of multilateral institutions to act effectively and the time-consuming nature of ICJ proceedings, input from other relevant state actors may become an increasingly likely option.

At this juncture, it appears that the road to resolution of the bilateral territorial quarrel will be long and arduous. A Bi-National Commission meeting to encourage dialogue between Costa Rica and Nicaragua was originally scheduled for late November, but it never took place due to the countries’ failure to agree on the terms of the gathering. As long as Costa Rica and Nicaragua remain unwilling to come to the table for a frank discussion of the issues at hand, international mediation appears to be the only option. As of yet, neither government seems capable of remaining above the fray. On the contrary, both have resorted to trading petty snarls and accusations back and forth. The Nicaraguan government distributed a hastily drawn-up white paper entitled “The San Juan River of Nicaragua: The Truths that Costa Rica Hides.” The merits of Nicaragua’s case against Costa Rica are largely overshadowed, however, by the report’s demonstrably juvenile and accusatory tone. The slightly more measured Costa Rican government’s report, “The Truth about the Incursion, Occupation, Use and Damage of Costa Rican Territory by Nicaragua,” lambastes Ortega’s position on the OAS’ authority over the dispute, suggesting “the Nicaraguan government’s unusual interpretation of International Law is only that which benefits [Nicaragua] has legitimacy.” 22 The self-indulgent grandstanding in these reports (particularly in the case of Nicaragua) is detrimental to the achievement of any kind of bilateral solution.

The San Juan dispute highlights just how unclear the protocol regarding conflict mediation remains in Latin America. The ease with which Nicaragua has rejected the jurisdiction of the OAS raises several important questions regarding the power and scope of the organization. Lack of a compelling as well as obvious stand-in arbitrator (short of the ICJ) increases the risk that ‘frozen’ border conflicts in the region will remain unresolved, lying dormant and liable to resurface at a later date with unpredictable venom.

Conclusion: Prospects for the Future

Given the current confusion surrounding mediation of the riverine conflict, the precise trajectory that it is likely to take is hard to predict. However, for a number of reasons, we can say with some assurance that it is not likely to drag on indefinitely and that an escalation into armed conflict is extremely unlikely. The primary basis for this is that a protracted dispute is clearly not in the best interest of either nation, regardless of the short-term surge in popularity that it may afford each of the countries’ respective presidents. Perceived instability is likely to discourage badly needed investment in the region, and it may negatively affect Costa Rica’s vital tourism industry. Kevin Casas-Zamora at the Brookings Institution’s Latin America Initiative, warns that if the conflict worsens, “political pressure in Costa Rica will grow to adopt harsher measures against Nicaragua, including trade-related and migration ones. This could certainly affect the burgeoning economic ties between both countries ($420 million… in 2009), which overwhelmingly are comprised of Costa Rican exports and investments.” 23

For a country like Nicaragua, any sustained disruption of its already feeble economy could prove fatal. As Jorge Domínguez suggests, “developmental objectives are the most important factor in distinguishing cases where boundary and territorial disputes are settled from those where they fester.”24 Currently, Ortega may be prioritizing his own short-term political ambitions over his nation’s long term-development goals. As such, it is likely that once Ortega’s posturing no longer yields tangible political gains, the conflict may well ebb, at least in the short term.

So long as troops on both sides unnecessarily remain at the border, the onus to take the first steps towards resolving the conflict belongs to Nicaragua. President Ortegas’ barely concealed his readiness to undermine the constitution if this would further his own electoral prospects. This seems to be guiding not only his domestic decisions, but also the content of his his foreign diplomacy. Prolonging the conflict with Costa Rica to gain electoral benefits would be highly irresponsible and unjustifiable. There already have been calls by members of the U.S. Senate to freeze vital aid to Nicaragua until the military is withdrawn from the region. 25 To avert the dangers of such an intemperate action, as well as the risk of Nicaragua being unfairly transformed into an international pariah, it is vital for Ortega to resume bilateral exchanges with Costa Rica. He must re-engage with the OAS and its member nations, even if he ultimately chooses not to accept any offer to mediate the conflict. For the sake of peaceful diplomacy, Ortega should remove Nicaraguan troops from the area in question. This gesture could significantly mitigate tensions and place Nicaragua in a more advantageous position to focus on making as compelling a case as possible before the ICJ (and the international community) regarding its right to dredge the river.

The history of Central America (as Ortega himself should very well know) is haunted by the specter of tyranny and senseless bloodshed. Now, over thirty years since his FSLN ousted the brutal Somoza dynasty, it is imperative that Ortega refrains from clinging to power by any means, including resurrecting a dispute that should have been put to rest decades ago.

References for this article are available here

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