       INTERNATIONAL COURT OF JUSTICE

         REPORTS OF JUDGMENTS,
      ADVISORY OPINIONS AND ORDERS

DISPUTE REGARDING NAVIGATIONAL
      AND RELATED RIGHTS
        (COSTA RICA v. NICARAGUA)

         JUDGMENT OF 13 JULY 2009

              2009
       COUR INTERNATIONALE DE JUSTICE

           RECUEIL DES ARRE| TS,
    AVIS CONSULTATIFS ET ORDONNANCES

  DIFFE
      u REND RELATIF A
                     v DES DROITS
E NAVIGATION ET DES DROITS CONNEXES
        (COSTA RICA c. NICARAGUA)

         ARRE
            | T DU 13 JUILLET 2009

                        Official citation :
       Dispute regarding Navigational and Related Rights
(Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 213

                      Mode officiel de citation :
 Différend relatif à des droits de navigation et des droits connexes
  (Costa Rica c. Nicaragua), arrêt, C.I.J. Recueil 2009, p. 213

                                            Sales number
SN 0074-4441
BN 978-92-1-071068-8
                                            No de vente :   959

                                     13 JULY 2009

                                     JUDGMENT

  DISPUTE REGARDING NAVIGATIONAL
        AND RELATED RIGHTS
      (COSTA RICA v. NICARAGUA)

   DIFFE
       u REND RELATIF A
                      v DES DROITS
DE NAVIGATION ET DES DROITS CONNEXES
      (COSTA RICA c. NICARAGUA)

                                  13 JUILLET 2009

                                      ARRÊT

                           TABLE OF CONTENTS

                                                                    Paragraphs

CHRONOLOGY OF THE PROCEDURE                                                  1-14
    I. GEOGRAPHICAL AND HISTORICAL CONTEXT AND ORIGIN OF THE
       DISPUTE                                                              15-29
II. COSTA RICA’S RIGHT OF FREE NAVIGATION ON THE SAN JUAN RIVER             30-84

      1. The legal basis of the right of free navigation                    32-41
      2. The extent of the right of free navigation attributed to Costa
         Rica                                                               42-84
         (a) The meaning and scope of the expression “libre navegación
              . . . con objetos de comercio”                                43-71
              (i) Preliminary observations                                  47-49
             (ii) The meaning of the phrase “con objetos”                   50-56
            (iii) The meaning of the word “commerce”                        57-71
         (b) The activities covered by the right of free navigation
              belonging to Costa Rica                                       72-84
              (i) Private navigation                                        73-79
             (ii) “Official vessels”                                        80-84
II. NICARAGUA’S POWER OF REGULATION OF NAVIGATION                          85-133
      1. General observations                                              86-101
         (a) Characteristics                                                87-90
         (b) Notification                                                   91-97
         (c) The factual context                                           98-101
      2. The legality of the specific Nicaraguan measures challenged
         by Costa Rica                                               102-133
         (a) Requirement to stop and identification                  103-107
         (b) Departure clearance certificates                        108-110
         (c) Visas and tourist cards                                 111-119
         (d) Charges                                                 120-124
         (e) Timetabling                                             125-129
         (f) Flags                                                   130-132
         (g) Conclusion                                                  133
IV. SUBSISTENCE FISHING                                                   134-144
V. THE CLAIMS MADE BY THE PARTIES IN THEIR FINAL SUBMISSIONS              145-155

      1. The claims of Costa Rica                                         145-150
      2. The claims of Nicaragua                                          151-155
OPERATIVE CLAUSE                                                             156

4

               INTERNATIONAL COURT OF JUSTICE

                                 YEAR 2009

                                 13 July 2009

    DISPUTE REGARDING NAVIGATIONAL
          AND RELATED RIGHTS
                    (COSTA RICA v. NICARAGUA)

  Geographical and historical context and origin of the dispute.
  The San Juan River — Border between Costa Rica and Nicaragua — History
of Costa Rica and Nicaragua after independence — War on the filibusters —
1858 Treaty of Limits — 1888 Cleveland Award — Demarcation of the bound-
ary — 1916 decision of the Central American Court of Justice — 1956
Fournier-Sevilla Agreement — Incidents relating to navigation on the San
Juan — 1995 Cuadra-Castro Communiqué — Prohibition by Nicaragua of
navigation of Costa Rican police vessels — 1998 Cuadra-Lizano Communi-
qué — 2002 Tovar-Caldera Agreement — Proceedings instituted before the
Court by Costa Rica — No objections to the jurisdiction of the Court raised by
Nicaragua.

                                       *
   Costa Rica’s right of free navigation on the San Juan River.
   Legal basis of the right of free navigation — No need for the Court to decide
whether the San Juan is an “international river” — The 1858 Treaty is suffi-
cient to settle the question of the extent of Costa Rica’s right of free naviga-
 ion — Costa Rica’s right of free navigation mainly based on Article VI of the
1858 Treaty — Relevance of the Cleveland Award, the 1916 decision of the
Central American Court of Justice and the Fournier-Sevilla Agreement.
   Disagreement between the Parties as to the types of navigation covered by the
1858 Treaty — Interpretation of the expression “con objetos de comercio” in
Article VI of the Treaty — Treaty provisions establishing limitations on sov-
ereignty — General rules of interpretation applicable — No intention by
authors of 1858 Treaty to establish any hierarchy as between Nicaragua’s sov-
ereignty over the San Juan and Costa Rica’s right of free navigation — None of
 he points under examination in the case was settled by the Cleveland Award of
1888 or by the decision of the Central American Court of Justice of 1916.
   Meaning of the phrase “con objetos” — Necessity to be able to give the sen-

5

 ence coherent meaning — Additional arguments — Meaning of the word
“objetos” in Article VIII of the 1858 Treaty — 1857 “Cañas-Martinez” Peace
Treaty — English translations of the 1858 Treaty submitted by each Party to
President Cleveland — The expression “con objetos de comercio” means “for
 he purposes of commerce”.
   Meaning of the word “commerce” — Evolving meaning of generic terms in a
 reaty — Present meaning of the notion of “commerce” must be accepted for
purposes of applying the Treaty — The right of free navigation applies to the
 ransport of persons as well as the transport of goods — Navigation by vessels
used in the performance of governmental activities or to provide public services
which are not commercial in nature cannot be regarded as falling within the
“purposes of commerce” under Article VI.
   Types of navigation covered by the right of free navigation “for the purposes
of commerce” pursuant to Article VI of the 1858 Treaty — Navigation of ves-
 els belonging to Costa Rican riparians in order to meet the basic requirements
of everyday life does not fall within the scope of Article VI of the Treaty —
Navigation covered by other provisions of the Treaty — Population inhabiting
 he south bank of the San Juan Costa Rican commonly used the river for travel
at the time of the conclusion of the Treaty — Presumption that the Parties
 ntended to preserve the right of riparians to use the river to meet their essential
 equirements — Right to be inferred from the provisions of the Treaty as a
whole.
   No special régime for “official vessels” established in Article VI of the 1858
Treaty — “Official vessels” navigating for the “purposes of commerce” —
“Official vessels” used for public order activities — Question of revenue service
vessels settled by the 1888 Cleveland Award — Navigation of official Costa
Rican vessels used for public order activities and public services lies outside the
 cope of Article VI of the 1858 Treaty — Right of navigation of certain Costa
Rican official vessels for the purpose of providing services to population is
 nferred from the provisions of the Treaty as a whole.

                                         *
   Nicaragua’s power of regulation of navigation on the San Juan River.
   Characteristics of regulations — Environmental protection as a legitimate
purpose of a regulation — Lack of any specific provision in the Treaty relating
 o notification of regulatory measures — Factors imposing an obligation of noti-
fication — 1956 Agreement — Particular situation of a river in which two
States have rights — Notification implicit in the nature of regulation — Obliga-
 ion of Nicaragua to notify Costa Rica of regulations — Costa Rica’s obligation
 o establish unreasonableness and allegedly disproportionate impact of reg-
ulations.

  Requirement to stop and identification — Right of Nicaragua to know the
dentity of persons entering and leaving its territory — Nicaraguan requirement
hat vessels stop on entering and leaving the San Juan is lawful — No legal
ustification for the requirement to stop at any intermediate point — Failure of
Costa Rica to show that the regulation is unreasonable.

 Departure clearance certificates — Purposes invoked by Nicaragua are legiti-
mate — Requirement for departure clearance certificates does not appear to

6

have imposed any significant impediment to freedom of navigation — No sug-
gestion from Costa Rica that it would be in a position to issue departure clear-
ance certificates — No instance of navigation being impeded by an arbitrary
 efusal of a certificate.
   Visas and tourist cards — Distinction to be made between requiring visas and
 equiring tourist cards — The power of a State to issue or refuse visas entails
discretion — Titleholder and beneficiaries of the right of free navigation —
Nicaragua may not impose a visa requirement on persons who benefit from
Costa Rica’s right of free navigation — Imposition of a visa requirement con-
 titutes a breach of the Treaty right — Legal situation remains unaffected even
 f no impediment to the freedom of navigation resulting from visa require-
ment — Tourist cards are not intended to facilitate control over entry into the
San Juan River — No legitimate purpose — Purchase of tourist cards is incon-
 istent with the freedom of navigation.

  Charges — No service provided by issuance of departure clearance certifi-
cates — Requirement to pay is unlawful.
  Timetabling — Prohibition of night time navigation — Measure is not
 mpediment to the freedom of navigation — Purpose pursued is legitimate —
Unreasonableness not established.
  Flags — Nicaragua may require certain Costa Rican vessels to fly its flag —
No impediment to the exercise of the freedom of navigation — No evidence that
Costa Rican vessels have been prevented from navigation on the San Juan River
as a result of this requirement.

                                        *
    Subsistence fishing by riparians of the Costa Rican bank.

   Question of admissibility raised by Nicaragua — The Court’s power of appre-
ciation — The alleged interferences by Nicaragua with the claimed right of sub-
 istence fishing post-date the filing of the Application — A sufficiently close
connection exists between the claim relating to subsistence fishing and the
Application — Nicaragua has not been disadvantaged by Costa Rica’s failure to
give notice of the claim in the Application — Nor has the Court been disadvan-
 aged in its understanding of the issues — Objection to admissibility cannot be
upheld.
   Merits of the claim — Dispute solely concerns subsistence fishing — Practice
 ong established — Failure of Nicaragua to deny existence of a right arising
 rom such a practice — Costa Rica has a customary right — Nicaragua may
 ake regulatory measures adopted for proper purposes — Customary right does
not extend to fishing from vessels on the river.

                                        *
  Claims made by the Parties in their final submissions.
  The claims of Costa Rica upheld or dismissed in the operative part of the
Judgment — A finding of wrongfulness regarding the conduct of a State entails
an obligation to cease that conduct — Cessation of a violation of a continuing
character and the consequent restoration of the legal situation constitute a form
of reparation — No evidence that Costa Rica has suffered a financially assess-

7

able injury — Assurances and guarantees of non-repetition ordered only if the
circumstances so warrant — No reason to suppose that a State will repeat act
or conduct declared wrongful.

  Nicaragua’s claim to be upheld to the extent that it corresponds to the rea-
oning in respect of Costa Rica’s claims — Nicaragua’s request for a declara-
ion as to certain rights and obligations of the Parties not upheld.

                                 JUDGMENT

Present : President OWADA ; Judges SHI, KOROMA, AL-KHASAWNEH, BUER-
          GENTHAL, ABRAHAM, KEITH, SEPÚLVEDA-AMOR, BENNOUNA, SKOTNIKOV,
          CANÇADO TRINDADE, YUSUF, GREENWOOD ; Judge ad hoc GUILLAUME ;
          Registrar COUVREUR.

    In the case concerning the dispute regarding navigational and related rights,

    between
he Republic of Costa Rica,
epresented by
 H.E. Mr. Edgar Ugalde-Alvarez, Ambassador, Vice-Minister of Foreign
    Affairs of Costa Rica,
 as Agent ;
 Mr. James Crawford, S.C., F.B.A., Whewell Professor of International Law,
    University of Cambridge, member of the Institut de droit international,

    Mr. Lucius Caflisch, Emeritus Professor of International Law, Graduate
      Institute of International and Development Studies, Geneva, member of
      the International Law Commission, member of the Institut de droit inter-
      national,
    Mr. Marcelo G. Kohen, Professor of International Law, Graduate Institute
      of International and Development Studies, associate member of the Insti-
      tut de droit international,
    Mr. Sergio Ugalde, Senior Adviser to the Ministry of Foreign Affairs of
      Costa Rica, member of the Permanent Court of Arbitration,
    Mr. Arnoldo Brenes, Senior Adviser to the Ministry of Foreign Affairs of
      Costa Rica,
    Ms Kate Parlett, Special Adviser to the Ministry of Foreign Affairs of Costa
      Rica, Solicitor (Australia), PhD candidate, University of Cambridge (Jesus
      College),
    as Counsel and Advocates ;
    H.E. Mr. Francisco José Aguilar-de Beauvilliers Urbina, Ambassador of
      Costa Rica to the Kingdom of the Netherlands,
    Mr. Ricardo Otarola, Chief of Staff to the Vice-Minister of Foreign Affairs
      of Costa Rica,

8

    Mr. Sergio Vinocour, Minister and Consul General of Costa Rica in the
      French Republic,
    Mr. Norman Lizano, Consul General of Costa Rica in the Kingdom of the
      Netherlands,
    Mr. Carlos Garbanzo, Counsellor at the Permanent Mission of Costa Rica
      to the United Nations Office at Geneva,
    Mr. Fouad Zarbiev, PhD candidate, Graduate Institute of International and
      Development Studies, Geneva,
    Mr. Leonardo Salazar, National Geographic Institute of Costa Rica,
    as Advisers ;
    Mr. Allan Solis, Third Secretary at the Embassy of Costa Rica in the King-
      dom of the Netherlands,
    as Assistant Adviser,
    and
he Republic of Nicaragua,
epresented by
 H.E. Mr. Carlos José Argüello Gómez, Ambassador of Nicaragua to the
    Kingdom of the Netherlands,
 as Agent and Counsel ;
 Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., member of the English Bar, former
    Chairman of the International Law Commission, Emeritus Chichele Pro-
    fessor of Public International Law, University of Oxford, member of the
    Institut de Droit international, Distinguished Fellow, All Souls College,
    Oxford,
 Mr. Stephen C. McCaffrey, Professor of International Law at the University
    of the Pacific, McGeorge School of Law, Sacramento, United States of
    America, former member of the International Law Commission,
 Mr. Alain Pellet, Professor at the University of Paris Ouest, Nanterre-
    La Défense, member and former Chairman of the International Law Com-
    mission, associate member of the Institut de droit international,
 Mr. Paul Reichler, Attorney at Law, Foley Hoag LLP, Washington D.C.,
    member of the Bar of the United States Supreme Court, member of the
    Bar of the District of Columbia,
 Mr. Antonio Remiro Brotóns, Professor of International Law, Universidad
    Autónoma, Madrid, associate member of the Institut de droit interna-
    tional,
 as Counsel and Advocates ;
 Ms Irene Blázquez Navarro, Doctor of Public International Law, Universi-
    dad Autónoma, Madrid,
 Ms Clara E. Brillenbourg, Foley Hoag LLP, member of the Bars of the Dis-
    trict of Columbia and New York,
 Mr. Lawrence H. Martin, Attorney at Law, Foley Hoag LLP, Washington
    D.C., member of the Bar of the United States Supreme Court, member of
    the Massachusetts Bar, member of the Bar of the District of Columbia,
 Mr. Walner Molina Pérez, Juridical Adviser, Ministry of Foreign Affairs of
    Nicaragua,
 Mr. Daniel Müller, Researcher at the Centre de droit international de Nan-
    terre (CEDIN), University of Paris Ouest, Nanterre-La Défense,

9

  Ms Tania Elena Pacheco Blandino, Counsellor, Embassy of Nicaragua in the
    Kingdom of the Netherlands,
  Mr. Julio César Saborio, Juridical Adviser, Ministry of Foreign Affairs of
    Nicaragua,
  Mr. César Vega Masís, Director of Juridical Affairs, Sovereignty and Terri-
    tory, Ministry of Foreign Affairs of Nicaragua,
  as Assistant Counsel,
  THE COURT,
  composed as above,
  after deliberation,
  delivers the following Judgment :
   1. On 29 September 2005 the Republic of Costa Rica (hereinafter “Costa
Rica”) filed in the Registry of the Court an Application of the same date, insti-
 uting proceedings against the Republic of Nicaragua (hereinafter “Nicara-
gua”) with regard to a “dispute concerning navigational and related rights of
Costa Rica on the San Juan River”.
   In its Application, Costa Rica seeks to found the jurisdiction of the Court on
 he declaration it made on 20 February 1973 under Article 36, paragraph 2, of
 he Statute, as well as on the declaration which Nicaragua made on 24 Septem-
ber 1929 under Article 36 of the Statute of the Permanent Court of Interna-
 ional Justice and which is deemed, pursuant to Article 36, paragraph 5, of the
Statute of the present Court, for the period which it still has to run, to be
acceptance of the compulsory jurisdiction of this Court. Costa Rica also seeks
 o found the jurisdiction of the Court on the Tovar-Caldera Agreement signed
between the Parties on 26 September 2002. In addition, Costa Rica invokes as
a basis of the Court’s jurisdiction the provisions of Article XXXI of the Ameri-
can Treaty on Pacific Settlement, officially designated, according to Article LX
 hereof, as the “Pact of Bogotá”.
   2. Pursuant to Article 40, paragraph 2, of the Statute, the Registrar imme-
diately communicated a certified copy of the Application to the Government of
Nicaragua ; and, in accordance with paragraph 3 of that Article, all States enti-
 led to appear before the Court were notified of the Application.

   3. Pursuant to the instructions of the Court under Article 43 of the Rules of
Court, the Registrar addressed to States parties to the Pact of Bogotá the noti-
fications provided for in Article 63, paragraph 1, of the Statute of the Court. In
accordance with the provisions of Article 69, paragraph 3, of the Rules of
Court, the Registrar moreover addressed to the Organization of American
States the notification provided for in Article 34, paragraph 3, of the Statute of
 he Court, and asked that organization whether or not it intended to furnish
observations in writing within the meaning of Article 69, paragraph 3, of the
Rules of Court.
   4. Since the Court included upon the Bench no judge of the nationality of
either of the Parties, each Party proceeded to exercise its right conferred by
Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the
case. Costa Rica chose Mr. Antônio Cançado Trindade and Nicaragua Mr. Gil-
bert Guillaume. Mr. Cançado Trindade was subsequently elected as a Member
of the Court. Costa Rica informed the Court that it had decided not to choose
a new judge ad hoc.

10

  5. By an Order dated 29 November 2005, the Court fixed 29 August 2006
and 29 May 2007, respectively, as the time-limits for the filing of the Memorial
of Costa Rica and the Counter-Memorial of Nicaragua ; those pleadings were
duly filed within the time-limits so prescribed.
  6. Referring to Article 53, paragraph 1, of the Rules of Court, the Govern-
ment of the Republic of Ecuador and the Government of the Republic of
Colombia respectively asked to be furnished with copies of the pleadings and
documents annexed. Having ascertained the views of the Parties pursuant to
 hat Article, the Court decided not to grant these requests. The Registrar com-
municated the Court’s decision to the Government of the Republic of Ecuador
and the Government of the Republic of Colombia, as well as to the Parties.

   7. By an Order of 9 October 2007, the Court authorized the submission of a
Reply by Costa Rica and a Rejoinder by Nicaragua, and fixed 15 January 2008
and 15 July 2008 as the respective time-limits for the filing of those pleadings.
The Reply and the Rejoinder were duly filed within the time-limits so pre-
 cribed.
   8. By letter of 27 November 2008, the Agent of Costa Rica expressed his
Government’s desire to produce five new documents, in accordance with Arti-
cle 56 of the Rules of Court. As provided for in paragraph 1 of that Article,
 hose documents were communicated to Nicaragua. By letter of 10 Decem-
ber 2008, the Agent of Nicaragua informed the Court that his Government did
not give its consent to the production of the requested documents.

  The Court decided, pursuant to Article 56, paragraph 2, of the Rules, to
authorize the production of four of the five documents submitted by Costa
Rica, it being understood that Nicaragua would have the opportunity, pursu-
ant to paragraph 3 of that Article, to comment subsequently thereon and to
 ubmit documents in support of those comments. That decision was commu-
nicated to the Parties by letters from the Registrar dated 18 December 2008.

   9. In accordance with Article 53, paragraph 2, of the Rules of Court, the
Court decided, after ascertaining the views of the Parties, that copies of the
pleadings and documents annexed would be made available to the public as
 rom the opening of the oral proceedings.
   10. Public hearings were held between 2 and 12 March 2009, at which the
Court heard the oral arguments and replies of :

For Costa Rica : H.E. Mr. Edgar Ugalde-Alvarez,
                 Mr. Arnoldo Brenes,
                 Mr. Sergio Ugalde,
                 Mr. Lucius Caflisch,
                 Mr. Marcelo G. Kohen,
                 Mr. James Crawford,
                 Ms Kate Parlett.
For Nicaragua : H.E. Mr. Carlos José Argüello Gómez,
                Mr. Ian Brownlie,
                Mr. Antonio Remiro Brotóns,
                Mr. Alain Pellet,
                Mr. Paul Reichler,
                Mr. Stephen C. McCaffrey.

11

  11. At the hearings, Members of the Court put questions to the Parties, to
which replies were given in writing, within the time-limit fixed by the President
n accordance with Article 61, paragraph 4, of the Rules of Court. Pursuant to
Article 72 of the Rules of Court, each of the Parties submitted comments on the
written replies provided by the other.

                                        *
  12. In its Application, the following claims were made by Costa Rica :

       “For these reasons, and reserving the right to supplement, amplify or
     amend the present Application, as well as to request the Court to establish
     provisional measures which might be necessary to protect its rights and to
     prevent the aggravation of the dispute, Costa Rica requests the Court to
     adjudge and declare that Nicaragua is in breach of its international obli-
     gations as referred to in paragraph 1 of this Application in denying to
     Costa Rica the free exercise of its rights of navigation and associated rights
     on the San Juan River. In particular the Court is requested to adjudge and
     declare that, by its conduct, Nicaragua has violated :
     (a) the obligation to facilitate and expedite traffic on the San Juan River
          within the terms of the Treaty of 15 April 1858 and its interpretation
          given by arbitration on 22 March 1888 ;
     (b) the obligation to allow Costa Rican boats and their passengers to
          navigate freely and without impediment on the San Juan River for
          commercial purposes, including the transportation of passengers and
          tourism ;
     (c) the obligation to allow Costa Rican boats and their passengers while
          engaged in such navigation to moor freely on any of the San Juan
          River banks without paying any charges, unless expressly agreed by
          both Governments ;
     (d) the obligation not to require Costa Rican boats and their passengers
          to stop at any Nicaraguan post along the river ;
     (e) the obligation not to impose any charges or fees on Costa Rican
          boats and their passengers for navigating on the river ;

     (f) the obligation to allow Costa Rica the right to navigate the river in
         accordance with Article Second of the Cleveland Award ;

     (g) the obligation to allow Costa Rica the right to navigate the San Juan
         River in official boats for supply purposes, exchange of personnel of
         the border posts along the right bank of the San Juan River, with
         their official equipment, including the necessary arms and ammuni-
         tions, and for the purposes of protection, as established in the perti-
         nent instruments ;
     (h) the obligation to collaborate with Costa Rica in order to carry out
         those undertakings and activities which require a common effort by
         both States in order to facilitate and expedite traffic in the San Juan
         River within the terms of the Treaty of Limits and its interpretation
         given by the Cleveland Award, and other pertinent instruments ;

     (i) the obligation not to aggravate and extend the dispute by adopting

12

          measures against Costa Rica, including unlawful economic sanctions
          contrary to treaties in force or general international law, or involving
          further changes in the régime of navigation and associated rights on
          the San Juan River not permitted by the instruments referred to
          above.
       Further, the Court is requested to determine the reparation which must
     be made by Nicaragua, in particular in relation to any measures of the
     kind referred to in paragraph 10 above.”
  Paragraph 10 of the Application reads as follows :
        “Costa Rica seeks the cessation of this Nicaraguan conduct which pre-
     vents the free and full exercise and enjoyment of the rights that Costa Rica
     possesses on the San Juan River, and which also prevents Costa Rica from
     fulfilling its responsibilities under Article II of the 1956 Agreement and
     otherwise. In the event that Nicaragua imposes the economic sanctions
     referred to above, or any other unlawful sanctions, or otherwise takes
     steps to aggravate and extend the present dispute, Costa Rica further seeks
     the cessation of such conduct and full reparation for losses suffered.”

 13. In the written proceedings, the following submissions were presented by
he Parties :
On behalf of the Government of Costa Rica,
n the Memorial and in the Reply :
       “1. For these reasons, and reserving the right to supplement, amplify or
    amend the present submissions, Costa Rica requests the Court to adjudge
    and declare that Nicaragua is in breach of its international obligations in
    denying to Costa Rica the free exercise of its rights of navigation and
    related rights on the San Juan.
       2. In particular the Court is requested to adjudge and declare that, by
    its conduct, Nicaragua has violated :
    (a) the obligation to allow all Costa Rican vessels and their passengers to
          navigate freely on the San Juan for purposes of commerce, including
          communication and the transportation of passengers and tourism ;

     (b) the obligation not to impose any charges or fees on Costa Rican ves-
         sels and their passengers for navigating on the River ;

     (c) the obligation not to require persons exercising the right of free navi-
         gation on the River to carry passports or obtain Nicaraguan visas ;

     (d) the obligation not to require Costa Rican vessels and their passengers
         to stop at any Nicaraguan post along the River ;

     (e) the obligation not to impose other impediments on the exercise of the
         right of free navigation, including timetables for navigation and con-
         ditions relating to flags ;
     (f) the obligation to allow Costa Rican vessels and their passengers while
         engaged in such navigation to land on any part of the bank where
         navigation is common without paying any charges, unless expressly
         agreed by both Governments ;

13

     (g) the obligation to allow Costa Rican official vessels the right to navi-
          gate the San Juan, including for the purposes of re-supply and
          exchange of personnel of the border posts along the right bank of the
          River with their official equipment, including service arms and ammu-
          nition, and for the purposes of protection as established in the
          relevant instruments, and in particular Article 2 of the Cleveland
          Award ;
     (h) the obligation to facilitate and expedite traffic on the San Juan,
          within the terms of the Treaty of 15 April 1858 and its interpretation
          by the Cleveland Award of 1888, in accordance with Article 1 of the
          bilateral Agreement of 9 January 1956 ;
     (i) the obligation to permit riparians of the Costa Rican bank to fish in
          the River for subsistence purposes.
       3. Further, the Court is requested to adjudge and declare that by reason
     of the above violations, Nicaragua is obliged :
     (a) immediately to cease all the breaches of obligations which have a con-
          tinuing character ;
     (b) to make reparation to Costa Rica for all injuries caused to Costa
          Rica by the breaches of Nicaragua’s obligations referred to above, in
          the form of the restoration of the situation prior to the Nicaraguan
          breaches and compensation in an amount to be determined in a sepa-
          rate phase of these proceedings ; and
     (c) to give appropriate assurances and guarantees that it shall not repeat
          its unlawful conduct, in such form as the Court may order.”

On behalf of the Government of Nicaragua,
n the Counter-Memorial :
       “On the basis of the facts and legal considerations set forth in the Counter-
     Memorial, the Court is requested :
       To adjudge and declare that the requests of Costa Rica in her Memorial
     are rejected, on the following bases :
     (a) either because there is no breach of the provisions of the Treaty of
           15 April 1858 on the facts ;
     (b) or, as appropriate, because the obligation breach of which is alleged
           is not included in the provisions of the Treaty of 15 April 1858.
       Moreover, the Court is also requested to make a formal declaration on
     the issues raised by Nicaragua in Section 2 of Chapter 7.”

  The relevant part of Section 2 of Chapter 7 of the Counter-Memorial reads
as follows :
       “Finally, in view of the above considerations, and in particular those
     indicated in Chapter 2 (E), Nicaragua requests the Court to declare that :

        (i) Costa Rica is obliged to comply with the regulations for navigation
            (and landing) in the San Juan imposed by Nicaraguan authorities
            in particular related to matters of health and security ;

        (ii) Costa Rica has to pay for any special services provided by Nicara-

14

            gua in the use of the San Juan either for navigation or landing on
            the Nicaraguan banks ;

       (iii) Costa Rica has to comply with all reasonable charges for modern
             improvements in the navigation of the river with respect to its situ-
             ation in 1858 ;
       (iv) revenue service boats may only be used during and with special ref-
             erence to actual transit of the merchandise authorized by Treaty ;

       (v) Nicaragua has the right to dredge the San Juan in order to return
             the flow of water to that obtaining in 1858 even if this affects the
             flow of water to other present day recipients of this flow such as the
             Colorado River.”
n the Rejoinder :
      “On the basis of the facts and legal considerations set forth in the Counter-
    Memorial and the Rejoinder, the Court is requested :
      To adjudge and declare that the requests of Costa Rica in her Memorial
    and Reply are rejected in general, and in particular, on the following
    bases :
    (a) either because there is no breach of the provisions of the Treaty of
          Limits of 15 April 1858 or any other international obligation of Nica-
          ragua ;
    (b) or, as appropriate, because the obligation breach of which is alleged,
          is not an obligation under the provisions of the Treaty of Limits of
          15 April 1858 or under general international law.
      Moreover, the Court is also requested to make a formal declaration on
    the issues raised by Nicaragua in Section II of Chapter VII of her Counter-
    Memorial and reiterated in Chapter VI, Section I, of her Rejoinder.”

  The relevant part of Chapter VI, Section I, of the Rejoinder reads as follows :
    “(i) Costa Rica is obliged to comply with the regulations for navigation
         (and landing) in the San Juan imposed by Nicaraguan authorities in
         particular related to matters of health and security ;

     (ii) Costa Rica has to pay for any special services provided by Nicaragua
          in the use of the San Juan either for navigation or landing on the
          Nicaraguan banks ;

     (iii) Costa Rica has to comply with all reasonable charges for modern
           improvements in the navigation of the river with respect to its situa-
           tion in 1858 ;
     (iv) revenue service boats may only be used during and with special ref-
           erence to actual transit of the merchandise authorized by Treaty ;

      (v) Nicaragua has the right to dredge the San Juan in order to return the
          flow of water to that obtaining in 1858 even if this affects the flow of
          water to other present day recipients of this flow such as the Colorado
          River.”
  14. At the oral proceedings, the following submissions were presented by the
Parties :

15

On behalf of the Government of Costa Rica,
at the hearing of 9 March 2009 :
       “Having regard to the written and oral pleadings and to the evidence
     submitted by the Parties, may it please the Court to adjudge and declare
     that, by its conduct, the Republic of Nicaragua has violated :
     (a) the obligation to allow all Costa Rican vessels and their passengers to
          navigate freely on the San Juan for purposes of commerce, including
          communication and the transportation of passengers and tourism ;

     (b) the obligation not to impose any charges or fees on Costa Rican ves-
         sels and their passengers for navigating on the River ;
     (c) the obligation not to require persons exercising the right of free navi-
         gation on the River to carry passports or obtain Nicaraguan visas ;

     (d) the obligation not to require Costa Rican vessels and their passengers
         to stop at any Nicaraguan post along the River ;

     (e) the obligation not to impose other impediments on the exercise of the
           right of free navigation, including timetables for navigation and con-
           ditions relating to flags ;
     (f) the obligation to allow Costa Rican vessels and their passengers while
          engaged in such navigation to land on any part of the bank where
          navigation is common without paying any charges, unless expressly
          agreed by both Governments ;
     (g) the obligation to allow Costa Rican official vessels the right to navi-
           gate the San Juan, including for the purposes of re-supply and
           exchange of personnel of the border posts along the right bank of the
           River with their official equipment, including service arms and ammu-
           nition, and for the purposes of protection as established in the rele-
           vant instruments, and in particular the Second article of the Cleve-
           land Award ;
     (h) the obligation to facilitate and expedite traffic on the San Juan,
           within the terms of the Treaty of 15 April 1858 and its interpretation
           by the Cleveland Award of 1888, in accordance with Article 1 of the
           bilateral Agreement of 9 January 1956 ;
     (i) the obligation to permit riparians of the Costa Rican bank to fish in
          the River for subsistence purposes.
       Further, the Court is requested to adjudge and declare that by reason of
     the above violations, Nicaragua is obliged :

     (a) immediately to cease all the breaches of obligations which have a con-
         tinuing character ;
     (b) to make reparation to Costa Rica for all injuries caused to Costa
         Rica by the breaches of Nicaragua’s obligations referred to above, in
         the form of the restoration of the situation prior to the Nicaraguan
         breaches and compensation in an amount to be determined in a sepa-
         rate phase of these proceedings ; and
     (c) to give appropriate assurances and guarantees that it shall not repeat
         its unlawful conduct, in such form as the Court may order.

16

       The Court is requested to reject Nicaragua’s request for a declaration.”

On behalf of the Government of Nicaragua,
at the hearing of 12 March 2009 :
      “On the basis of the facts and legal considerations set forth in the Counter-
     Memorial, Rejoinder and oral pleadings,
       May it please the Court to adjudge and declare that :
       The requests of Costa Rica in her Memorial, Reply and oral pleadings
     are rejected in general, and in particular, on the following bases :

     (a) either because there is no breach of the provisions of the Treaty of
         Limits of 15 April 1858 or any other international obligation of Nica-
         ragua ;
     (b) or, as appropriate, because the obligation breach of which is alleged,
         is not an obligation under the provisions of the Treaty of Limits of
         15 April 1858 or under general international law.
       Moreover the Court is also requested to make a formal declaration on
     the issues raised by Nicaragua in Section II of Chapter VII of her Counter-
     Memorial, in Section I, Chapter VI, of her Rejoinder and as reiterated in
     these oral pleadings.”

                                      * * *

                I. GEOGRAPHICAL AND HISTORICAL CONTEXT
                       AND ORIGIN OF THE DISPUTE

   15. The San Juan River runs approximately 205 kilometres from Lake
Nicaragua to the Caribbean Sea (see sketch-maps Nos. 1 and 2). Some
19 kilometres from the Caribbean Sea it divides into two branches : the
San Juan itself continues as the northerly of the two branches and empties
 nto the Caribbean Sea at the bay of San Juan del Norte ; the Colorado
River is the southern and larger of the two branches and runs entirely
within Costa Rica reaching the Caribbean Sea at Barra de Colorado.
   16. Part of the border between Costa Rica and Nicaragua runs along
 he right bank (i.e. the Costa Rican side) of the San Juan River from a
point three English miles below Castillo Viejo, a small town in Nicara-
gua, to the end of Punta de Castilla, where the river enters the Caribbean
Sea. Between Lake Nicaragua and the point below Castillo Viejo, the
river runs entirely through Nicaraguan territory.

  17. Both Costa Rica and Nicaragua, which had been under Spanish
colonial rule, became independent States in 1821. Shortly after independ-
ence, Costa Rica and Nicaragua, together with El Salvador, Guatemala
and Honduras, decided to constitute the Federal Republic of Central
America. In 1824 the people living in the district of Nicoya on the Pacific
coast, originally within Nicaragua, opted by plebiscite to become part of

17

18
               MANAGUA

                                                                          NICARAGUA

                                                Lake Nicaragua

                                                                                CARIBBEAN SEA

       PACIFIC OCEAN
                                                                           Castillo Viejo
                                 Salinas Bay                                                          Bay San Juan Del Norte
                                                                                Punta de Castilla
                                                                                S

                                                                                an
                                                                                Ju
                                                                                an
                                                                           s

          Sketch-map No. 1:
                                                                          lo

                                                  COSTA RICA
                                                                                Co

                                                                                lo
                                                                      ar

     General geographical context                                                                       r a do
                                                                      C
                                                                  n
                                                                                uí

                                                                 Sa

        and boundary between
                                                                                piq

      Costa Rica and Nicaragua
                                                                                ra
                                                                                Sa

            Mercator Projection
                      (11°N)

                   WGS 84
        This sketch-map has been prepared                                           SAN JOSÉ
                                               Nicoya
          for illustrative purposes only.

19
                                                                                Sketch-map No. 2:
                                                                                Course of the boundary
                                                                                NICARAGUA                                        along the San Juan, tourist
                             N1
                                                                                route and river posts
                                                   N2                                                                                Mercator Projection
                                                         Castillo Viejo                                                                                (11°N)

                                                                                WGS 84
                                                                                N3

                                                                                Punta de Castilla
                    Rivers                                                                                N7
                    International Border
                    Tourist Route
                    Costa Rican Posts                                                       S

                                                                 o
                    C1: Boca del Río San Carlos
                                                                                a

                                                         it
                    C2: Boca del Río Sarapiquí
                                                                                n

                                                        rn
                    C3: Delta Costa Rica                                                N4              J u
                    C4: Puerto Lindo
                                                                                a n
                                                                                N6                      C5

                                                       ie
                    C5: Barra del Colorado Norte
                    C6: Barra del Colorado Sur

                                                    nf
                                                    I
                                                                                C1                                        N5        C3                        C6
                    Nicaraguan Posts
                    N1: San Carlos
                                                                                C

                    N2: Boca Sábalos                                                                                C2
                                                                                í
                                                                                o
                    N3: Bartola                                                                                lo
                    N4: Boca San Carlos                                                                                r a C4
                                                                                d o
                    N5: Boca Sarapiquí
                    N6: Delta San Juan
                                                                                piqu

                    N7: San Juan del Norte
                                                                           os
     This sketch-map has been prepared                                rl
                                                                                Sara

                                                                 Ca                                                                   COSTA RICA
        for illustrative purposes only.                      n
                                                        Sa

Costa Rica. On 9 December 1825 the Federal Congress of Central
America issued a decree which provided that Nicoya would be “for the
 ime being . . . separated from the State of Nicaragua and annexed to
 hat of Costa Rica”. The situation regarding Nicoya remained unchanged
at the time of the dissolution of the Federal Republic of Central America
 n 1839. Thereafter, Nicaragua did not however recognize Nicoya as
belonging to Costa Rica.
   18. During the mid-1850s, Nicaragua underwent a period of internal
conflict which involved a group of American adventurers, known as “fili-
busters” (“filibusteros”), led by William Walker. The Government of
Costa Rica as well as those of El Salvador, Guatemala and Honduras
 oined Nicaragua’s efforts to defeat the filibusters. In May 1857, Walker
capitulated and abandoned Nicaraguan territory. Following the defeat of
 he filibusters, war broke out between Costa Rica and Nicaragua. At the
end of those hostilities, the two countries engaged in negotiations to settle
outstanding bilateral matters between them, relating, inter alia, to their
common boundary, to the navigational régime on the San Juan River,
and to the possibility of building an inter-oceanic canal across the Cen-
 ral American isthmus.
   19. On 6 July 1857 a Treaty of Limits was signed, dealing with terri-
 orial limits and the status of the San Juan River, but was not ratified by
Costa Rica. On 8 December 1857 a Treaty of Peace was signed by the
Parties but was not ratified by either Costa Rica or Nicaragua. Through
 he mediation of the Salvadoran Minister for Foreign Affairs, the Gov-
ernments of Costa Rica and Nicaragua reached agreement on
15 April 1858 on a Treaty of Limits, which was ratified by Costa Rica on
16 April 1858 and by Nicaragua on 26 April 1858. The 1858 Treaty of
Limits fixed the course of the boundary between Costa Rica and Nica-
ragua from the Pacific Ocean to the Caribbean Sea. According to the
boundary thus drawn the district of Nicoya lay within the territory of
Costa Rica. Between a point three English miles from Castillo Viejo and
 he Caribbean Sea, the Treaty fixed the boundary along the right bank of
 he San Juan River. It established Nicaragua’s dominion and sovereign
 urisdiction over the waters of the San Juan River, but at the same time
affirmed Costa Rica’s navigational rights “con objetos de comercio” on
 he lower course of the river (Article VI). The 1858 Treaty established
other rights and obligations for both parties, including, inter alia, an
obligation to contribute to the defence of the common bays of San Juan
del Norte and Salinas as well as to the defence of the San Juan River in
case of external aggression (Article IV), an obligation on behalf of Nica-
ragua to consult with Costa Rica before entering into any canalization or
 ransit agreements regarding the San Juan River (Article VIII) and an
obligation not to commit acts of hostility against each other (Article IX).
   20. Following challenges by Nicaragua on various occasions to the
validity of the 1858 Treaty, the Parties submitted the question to arbitra-
 ion by the President of the United States. The Parties agreed in addition
 hat if the 1858 Treaty were found to be valid, President Cleveland

20

should also decide whether Costa Rica could navigate the San Juan River
with vessels of war or of the revenue service. In his Award rendered on
22 March 1888, President Cleveland held that the 1858 Treaty was valid.
He further stated, with reference to Article VI of the 1858 Treaty, that
Costa Rica did not have the right of navigation on the San Juan River
with vessels of war, but that it could navigate with such vessels of the
Revenue Service as may be connected to navigation “for the purposes of
commerce”.
   21. Following the Cleveland Award, a boundary commission was
established to demarcate the boundary line. An engineer, Mr. Edward
Alexander, was charged with the task of resolving any “disputed point or
points” which might arise in the field during the demarcation process,
which began in 1897 and was concluded in 1900. Mr. Alexander rendered
five awards to this end.
   22. On 5 August 1914, Nicaragua signed a treaty with the United
States (the Chamorro-Bryan Treaty) which granted the United States
perpetual and “exclusive proprietary rights” for the construction and
maintenance of an inter-oceanic canal through the San Juan River. On
24 March 1916 Costa Rica filed a case against Nicaragua before the Cen-
 ral American Court of Justice claiming that Nicaragua had breached its
obligation to consult with Costa Rica prior to entering into any canaliza-
 ion project in accordance with Article VIII of the 1858 Treaty. On
30 September 1916, the Central American Court of Justice ruled that, by
not consulting Costa Rica, Nicaragua had violated the rights guaranteed
 o the latter by the 1858 Treaty of Limits and the 1888 Cleveland Award.
   23. On 9 January 1956 Costa Rica and Nicaragua concluded an Agree-
ment (the Fournier-Sevilla Agreement) according to the terms of which the
Parties agreed to facilitate and expedite traffic in particular through the
San Juan River and agreed to co-operate to safeguard the common border.
   24. In the 1980s various incidents started to occur relating to the navi-
gational régime of the San Juan River. During that period Nicaragua
 ntroduced certain restrictions on Costa Rican navigation on the San
Juan River which it justified as temporary, exceptional measures to pro-
 ect Nicaragua’s national security in the context of an armed conflict.
Some of the restrictions were suspended when Costa Rica protested.
During the mid-1990s further measures were introduced by Nicaragua,
 ncluding the charging of fees for passengers travelling on Costa Rican
vessels navigating on the San Juan River and the requirement for Costa
Rican vessels to stop at Nicaraguan Army posts along the river.

  25. On 8 September 1995 the Commander-in-Chief of the Nicaraguan
Army and the Costa Rican Minister of Public Security signed a docu-
ment, known as the Cuadra-Castro Joint Communiqué, which provided
 or the co-ordination of operations in the border areas of the two States
against the illegal trafficking of persons, vehicles and contraband.

21

   26. In July 1998 further disagreements between the Parties regarding
 he extent of Costa Rica’s navigational rights on the San Juan River led
 o the adoption by Nicaragua of certain measures. In particular, on
14 July 1998, Nicaragua prohibited the navigation of Costa Rican vessels
 hat transported members of Costa Rica’s police force. On 30 July 1998,
 he Nicaraguan Minister of Defence and the Costa Rican Minister of
Public Security signed a document, known as the Cuadra-Lizano Joint
Communiqué. The text allowed for Costa Rican armed police vessels to
navigate on the river to re-supply their boundary posts on the Costa Rican
side, provided that the Costa Rican agents in those vessels only carried
 heir service arms and prior notice was given to the Nicaraguan authori-
 ies, which could decide on whether the Costa Rican vessels should be
accompanied by a Nicaraguan escort. On 11 August 1998, Nicaragua
declared that it considered the Cuadra-Lizano Joint Communiqué to be
 egally null and void. Costa Rica did not accept this unilateral declara-
 ion. Differences regarding the navigational régime on the San Juan
River persisted between the Parties.

   27. On 24 October 2001, Nicaragua made a reservation to its declara-
 ion accepting the jurisdiction of the Court (see paragraph 1 above),
according to which it would no longer accept the jurisdiction of the
Court in regard to “any matter or claim based on interpretations of trea-
 ies or arbitral awards that were signed and ratified or made, respectively,
prior to 31 December 1901”. Under the Tovar-Caldera Agreement, signed
by the Parties on 26 September 2002, Nicaragua agreed to a three year
moratorium with regard to the reservation it had made in 2001 to its dec-
 aration accepting the jurisdiction of the Court. For its part, Costa Rica
agreed that during the same three year period it would not initiate any
action before the International Court of Justice nor before any other
authority on any matter or protest mentioned in treaties or agreements
currently in force between both countries.
   28. Once the agreed three year period had elapsed without the Parties
having been able to settle their differences, Costa Rica, on 29 Septem-
ber 2005, instituted proceedings before the Court against Nicaragua with
regard to its disputed navigational and related rights on the San Juan
River (see paragraph 1 above). Nicaragua has not raised any objections
 o the jurisdiction of the Court to entertain the case.

                                     *
  29. Taking account of the subject of the dispute as summarized above
and of the Parties’ submissions and arguments, the Court will proceed in
 he following manner.
  It will first determine the extent of Costa Rica’s right of free navigation
on the San Juan River (II).
  It will next ascertain whether, and to what extent, within the ambit of

22

 he right thus defined, Nicaragua has the power to regulate navigation by
Costa Rican boats and whether the specific measures it has decided and
put into effect to this end during the period of the dispute are compatible
with Costa Rica’s rights (III).

   It will then consider the question of the right which Costa Rica claims
 or inhabitants of the Costa Rican bank of the river to engage in subsist-
ence fishing (IV).
   Finally, in the light of its reasoning on the preceding points, it will con-
sider the Parties’ claims as presented to it in their final submissions, in
respect in particular of the appropriate remedies (V).

              II. COSTA RICA’S RIGHT OF FREE NAVIGATION
                        ON THE SAN JUAN RIVER

   30. The Parties agree that Costa Rica possesses a right of free naviga-
 ion on the section of the San Juan River where the right bank, i.e. the
Costa Rican side, marks the border between the two States by virtue of
 he Treaty of Limits (the Jerez-Cañas Treaty) concluded between them
on 15 April 1858. This is the part of the river which runs from a point
 hree English miles below Castillo Viejo, a town in Nicaraguan territory,
 o the mouth of the river at the Caribbean Sea (see paragraph 16 above).

   Upstream from the point referred to above, the San Juan flows entirely
 n Nicaraguan territory from its source in Lake Nicaragua, in the sense
 hat both its banks belong to Nicaragua. The section of the river in which
 he right bank belongs to Costa Rica, the section at issue in this dispute,
 s some 140 kilometres long.
   31. While it is not contested that the section of the river thus defined
belongs to Nicaragua, since the border lies on the Costa Rican bank,
with Costa Rica possessing a right of free navigation, the Parties differ
both as to the legal basis of that right and, above all, as to its precise
extent, in other words as to the types of navigation which it covers.

           1. The Legal Basis of the Right of Free Navigation
   32. According to Costa Rica, its right of free navigation on the part of
 he San Juan River that is in dispute derives on the one hand from certain
 reaty provisions in force between the Parties, primarily but not exclu-
sively the Treaty of Limits of 15 April 1858, and on the other hand from
 he rules of general international law that are applicable, even in the
absence of treaty provisions, to navigation on “international rivers”. The
San Juan is said to fall into this category, at least as regards the section

23

whose course follows the border, with Costa Rica thus possessing a cus-
omary right of free navigation in its capacity as a riparian State.

   33. According to Nicaragua, on the contrary, the San Juan is not an
“international river”, since it flows entirely within the territory of a single
country by virtue of the provisions of the 1858 Treaty of Limits, which
establish the border in such a way that no part of the river falls under the
sovereignty of a State other than Nicaragua. Moreover, Nicaragua chal-
 enges the existence of a general régime that might be applicable, under
customary international law, to rivers whose course, or one of whose
banks, constitutes the border between two States, and more widely to
“international rivers”. Lastly, according to Nicaragua, even if such a
régime were to exist, it would be superseded in this case by the treaty pro-
visions which define the status of the San Juan River and govern the
riparian States’ right of navigation. It is these special provisions which
should be applied in order to settle the present dispute, in any event that
part of it relating to the right of navigation on the river.

   34. The Court does not consider that it is required to take a position in
 his case on whether and to what extent there exists, in customary inter-
national law, a régime applicable to navigation on “international rivers”,
either of universal scope or of a regional nature covering the geographi-
cal area in which the San Juan is situated. Nor does it consider, as a
result, that it is required to settle the question of whether the San Juan
 alls into the category of “international rivers”, as Costa Rica maintains,
or is a national river which includes an international element, that being
 he argument of Nicaragua.
   35. Indeed, even if categorization as an “international river” would be
 egally relevant in respect of navigation, in that it would entail the appli-
cation of rules of customary international law to that question, such rules
could only be operative, at the very most, in the absence of any treaty
provisions that had the effect of excluding them, in particular because
 hose provisions were intended to define completely the régime applicable
 o navigation, by the riparian States on a specific river or a section of it.

  36. That is precisely the case in this instance. The 1858 Treaty of
Limits completely defines the rules applicable to the section of the
San Juan River that is in dispute in respect of navigation. Interpreted
 n the light of the other treaty provisions in force between the Parties,
and in accordance with the arbitral or judicial decisions rendered
on it, that Treaty is sufficient to settle the question of the extent of
Costa Rica’s right of free navigation which is now before the Court.
Consequently, the Court has no need to consider whether, if these
provisions did not exist, Costa Rica could nevertheless have relied for
 his purpose on rules derived from international, universal or regional
custom.
  37. The main provision which founds Costa Rica’s right of free navi-

24

gation is contained in Article VI of the 1858 Treaty (see paragraphs 43
and 44 below) ; this has been the focus of the arguments exchanged
between the Parties as to the extent of the right of navigation on the
San Juan.
   Article VI, after conferring on Nicaragua full and exclusive sover-
eignty (“exclusivamente el dominio y sumo imperio”) over the whole of
 he San Juan, from its source in the lake to its mouth at the sea, grants
Costa Rica, on the section of the river which follows the border between
 he two States (see paragraph 30 above), a perpetual right (“los dere-
chos perpetuos”) of free navigation “con objetos de comercio”, accord-
 ng to the terms of the Spanish version of the Treaty, which is the only
authoritative one, the meaning of which the Court will be required to
return to below. In addition, Article VI gives vessels of both riparian
countries the right to land freely on either bank without being subject to
any taxes (“ninguna clase de impuestos”), unless agreed by both Gov-
ernments.
   38. Other provisions of the 1858 Treaty, though of less importance for
 he purposes of the present case, are not without relevance as regards the
right of navigation on the river. This applies in particular to Article IV,
which obliges Costa Rica to contribute to the security of the river “for
 he part that belongs to her of the banks”, to Article VIII, which obliges
Nicaragua to consult Costa Rica before entering into any agreements
with a third State for canalization or transit on the river, and of course to
Article II, which establishes the border as the Costa Rican bank on the
section of the river which is at issue in this dispute.
   39. Besides the 1858 Treaty, mention should be made, among the
 reaty instruments likely to have an effect on determining the right of
navigation on the river and the conditions for exercising it, of the agree-
ment concluded on 9 January 1956 between the two States (known as the
Fournier-Sevilla Agreement), whereby the Parties agreed to collaborate
 o the best of their ability, in particular in order to facilitate and expedite
 raffic on the San Juan in accordance with the 1858 Treaty and the Arbi-
 ral Award made by President Cleveland in 1888 (for the text of the rele-
vant provision of the 1956 Agreement, see paragraph 94 below).

   40. Costa Rica has also invoked before the Court the joint ministerial
communiqués published on 8 September 1995 (known as the Cuadra-
Castro Joint Communiqué ; see paragraph 25 above) and 30 July 1998
 known as the Cuadra-Lizano Joint Communiqué ; see paragraph 26
above). In the Court’s view, however, these statements issued by the min-
 sters responsible, on each side, for matters of defence and public secu-
rity, cannot be included in the conventional basis of the right of free
navigation granted to Costa Rica. Rather, these are practical arrange-
ments, in part aimed at implementing previous treaty commitments,
 ncluding in particular the obligation of co-operation referred to in the
Agreement of 9 January 1956 (see paragraph 23 above and paragraph 94
below). The legal effects of such arrangements are more limited than the

25

conventional acts themselves : modalities for co-operation which they put
 n place are likely to be revised in order to suit the Parties. Furthermore,
 he second of them was promptly declared null and void by Nicaragua
 see paragraph 26 above).

   41. The above-mentioned treaty instruments must be understood in
 he light of two important decisions which settled differences that emerged
between the Parties in determining their respective rights and obligations :
 he Arbitral Award made by the President of the United States on
22 March 1888 (known as the Cleveland Award) ; and the decision ren-
dered, on the application of Costa Rica, by the Central American Court
of Justice on 30 September 1916.
   The first of these two decisions settled several questions concerning the
 nterpretation of the 1858 Treaty which divided the Parties in that case ;
 he second found that Nicaragua, by concluding an agreement with the
United States permitting the construction and maintenance of an inter-
oceanic canal through the San Juan River, had disregarded Costa Rica’s
right under Article VIII of that Treaty to be consulted before the conclu-
sion of any agreement of that nature.
   Although neither of these decisions directly settles the questions that
are now before the Court, they contain certain indications which it will
be necessary to take into account for the purposes of the present case.

              2. The Extent of the Right of Free Navigation
                        Attributed to Costa Rica
   42. Having thus defined the legal basis of the right which Costa Rica
argues has been partly disregarded by Nicaragua, the Court must now
determine its precise extent, in other words, its field of application. The
Parties disagree considerably over the definition of this field of applica-
 ion, i.e., as to the types of navigation which are covered by the “per-
petual right” granted to Costa Rica by the 1858 Treaty. Their difference
essentially concerns the interpretation of the words “libre navegación . . .
con objetos de comercio” in Article VI of the Treaty of Limits ; this
brings with it a major disagreement as to the definition of the activities
covered by the right in question and of those which, not being thus cov-
ered, are subject to Nicaragua’s sovereign power to authorize and regu-
 ate as it sees fit any activity that takes place on its territory, of which the
river forms part.

a) The meaning and scope of the expression “libre navegación . . . con
   objetos de comercio”
   43. In its Spanish version, which is the only authoritative one, Arti-
cle VI of the Treaty of Limits of 1858 reads as follows :
       “La República de Nicaragua tendrá exclusivamente el dominio y

26

     sumo imperio sobre las aguas del río de San Juan desde su salida del
     Lago, hasta su desembocadura en el Atlántico ; pero la República de
     Costa Rica tendrá en dichas aguas los derechos perpetuos de libre
     navegación, desde la expresada desembocadura hasta tres millas
     inglesas antes de llegar al Castillo Viejo, con objetos de comercio, ya
     sea con Nicaragua ó al interior de Costa Rica por los ríos de San
     Carlos ó Sarapiquí, ó cualquiera otra vía procedente de la parte que
     en la ribera del San Juan se establece corresponder á esta República.
     Las embarcaciones de uno ú otro país podrán indistintamente atracar
     en las riberas del río, en la parte en que la navegación es común, sin
     cobrarse ninguna clase de impuestos, á no ser que se establezcan de
     acuerdo entre ambos Gobiernos.”
  44. Leaving aside for the moment the phrase whose interpretation,
and indeed translation into English and French, divides the Parties, this
article may be translated thus :
        “The Republic of Nicaragua shall have exclusive dominium and
     imperium over the waters of the San Juan River from its origin in the
     lake to its mouth at the Atlantic Ocean ; the Republic of Costa Rica
     shall however have a perpetual right of free navigation on the said
     waters between the mouth of the river and a point located three Eng-
     lish miles below Castillo Viejo, [con objetos de comercio], whether
     with Nicaragua or with the interior of Costa Rica by the rivers San
     Carlos or Sarapiquí or any other waterway starting from the section
     of the bank of the San Juan established as belonging to that Repub-
     lic. The vessels of both countries may land indiscriminately on either
     bank of the section of the river where navigation is common, with-
     out paying any taxes, unless agreed by both Governments.” [Trans-
     lation by the Court.]

   45. The Parties’ disagreement is greatest on the meaning of the words
“con objetos de comercio”. For Nicaragua, this expression must be trans-
 ated into French as “avec des marchandises de commerce” and into Eng-
 ish as “with articles of trade” ; in other words, the “objetos” in question
here are objects in the concrete and material sense of the term. Conse-
quently, the freedom of navigation guaranteed to Costa Rica by Arti-
cle VI relates only to the transport of goods intended to be sold in a
commercial exchange. For Costa Rica, on the contrary, the expression
means in French “à des fins de commerce” and in English “for the pur-
poses of commerce” ; the “objetos” in the original text are therefore said
 o be objects in the abstract sense of ends and purposes. Consequently,
according to Costa Rica, the freedom of navigation given to it by the
Treaty must be attributed the broadest possible scope, and in any event
encompasses not only the transport of goods but also the transport of
passengers, including tourists.

27

  46. Before directly addressing the question which has been submitted
 o it, the Court will make three preliminary observations of a more gen-
eral nature. It will then consider what is to be understood by “con
objetos” and then by “comercio” within the meaning of Article VI, since
 here is in fact a twofold disagreement between the Parties.

     (i) Preliminary observations
   47. In the first place, it is for the Court to interpret the provisions of a
 reaty in the present case. It will do so in terms of customary interna-
 ional law on the subject, as reflected in Articles 31 and 32 of the
1969 Vienna Convention on the Law of Treaties, as the Court has stated
on several occasions (see Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 109-
110, para. 160 ; see also Territorial Dispute (Libyan Arab Jamahiriya/
Chad), Judgment, I.C.J. Reports 1994, pp. 21-22, para. 41.)
   Consequently, neither the circumstance that Nicaragua is not a party
 o the Vienna Convention on the Law of Treaties nor the fact that the
 reaty which is to be interpreted here considerably pre-dates the drafting
of the said Convention has the effect of preventing the Court from refer-
ring to the principles of interpretation set forth in Articles 31 and 32 of
 he Vienna Convention.
   48. In the second place, the Court is not convinced by Nicaragua’s
argument that Costa Rica’s right of free navigation should be interpreted
narrowly because it represents a limitation of the sovereignty over the
river conferred by the Treaty on Nicaragua, that being the most impor-
 ant principle set forth by Article VI.
   While it is certainly true that limitations of the sovereignty of a State
over its territory are not to be presumed, this does not mean that treaty
provisions establishing such limitations, such as those that are in issue in
 he present case, should for this reason be interpreted a priori in a restric-
 ive way. A treaty provision which has the purpose of limiting the sov-
ereign powers of a State must be interpreted like any other provision of a
 reaty, i.e. in accordance with the intentions of its authors as reflected by
 he text of the treaty and the other relevant factors in terms of interpreta-
 ion.
   A simple reading of Article VI shows that the Parties did not intend to
establish any hierarchy as between Nicaragua’s sovereignty over the river
and Costa Rica’s right of free navigation, characterized as “perpetual”,
with each of these affirmations counter-balancing the other. Nicaragua’s
sovereignty is affirmed only to the extent that it does not prejudice the
substance of Costa Rica’s right of free navigation in its domain, the
establishment of which is precisely the point at issue ; the right of free
navigation, albeit “perpetual”, is granted only on condition that it does
not prejudice the key prerogatives of territorial sovereignty.

28

   There are thus no grounds for supposing, a priori, that the words
“libre navegación . . . con objetos de comercio” should be given a spe-
cially restrictive interpretation, any more than an extensive one.
   49. Lastly, the Court observes that none of the points under examina-
 ion in this case was settled by the Cleveland Award of 1888 or by the
decision of the Central American Court of Justice of 1916. Each of the
Parties has sought to use these previous decisions as an argument to sup-
port its own case. However, these attempts do not convince the Court
one way or the other.
   The Cleveland Award confined itself to settling the questions of inter-
pretation which the Parties had expressly submitted to the arbitrator.
Those questions did not concern the meaning of the words “con objetos de
comercio” ; it is therefore futile to seek in the Award the answer to a ques-
 ion that was not put before the arbitrator. Consequently, while the Award
declares that Costa Rica does not have the right, under the Treaty, to navi-
gate on the San Juan with vessels of war, whereas it does have the right to
do so with vessels of its revenue service, there is nothing to be inferred
 rom this with regard to vessels belonging to the State and not falling into
either of those two categories. Likewise, while the arbitrator used the
words “for the purposes of commerce” and placed them in quotation
marks, it may be supposed that this was simply because that was the Eng-
 ish translation of the words “con objetos de comercio” which both Parties
had supplied to the arbitrator, who did not wish, in his interpretation of
 he Treaty, to go beyond the questions which had been put before him.
   As for the decision of the Central American Court of Justice of 1916,
however important this might be, its operative part was based only on the
application of the express provisions of Article VIII of the Treaty, which
are not at issue in the present case.

     (ii) The meaning of the phrase “con objetos”
   50. It is now appropriate to consider the issue of the meaning of the
phrase “con objetos de” as used in Article VI of the 1858 Treaty, specifi-
cally whether it means “for the purposes of” — as Costa Rica con-
 ends — or “with articles of” — as Nicaragua contends.
   51. It should first be observed that the Spanish word “objetos” can,
depending on its context, have either of the two meanings put forward.
Thus, the context must be examined to ascertain the meaning to be
ascribed here. The two meanings — one concrete and the other abstract —
are sufficiently different that examination of the context will generally
allow for a firm conclusion to be reached.
   52. Having conducted this examination, the Court is of the view that
 he interpretation advocated by Nicaragua cannot be upheld.
   The main reason for this is that ascribing the meaning “with goods” or
“with articles” to the phrase “con objetos” results in rendering meaning-
 ess the entire sentence in which the phrase appears.

29

   The part of Article VI which is relevant in this connection reads :
“Costa Rica tendrá . . . los derechos perpetuos de libre navegación . . .,
con objetos de comercio, ya sea con Nicaragua ó al interior de Costa
Rica.”
   If Nicaragua’s interpretation were to be accepted, there would be no
 ntelligible relationship between the clause following the phrase “con
objetos de comercio”, i.e., “ya sea con Nicaragua ó al interior de
Costa Rica” (“whether with Nicaragua or with the interior of Costa
Rica”), and the preceding part of the sentence.
   Either the words “with Nicaragua” would relate to “objetos de com-
ercio”, which would hardly make sense, since it would not be meaningful
 o speak of “goods (or articles) of trade with Nicaragua” ; or these words
relate to “navegación” and that would make even less sense, because the
expression “navegación . . . con Nicaragua” would simply be incompre-
hensible.
   By contrast, Costa Rica’s interpretation of the words “con objetos”
allows the entire sentence to be given coherent meaning. If the phrase
means “purposes of commerce”, then the immediately following clause,
“ya sea con Nicaragua . . .”, plainly relates to “comercio” (“for the pur-
poses of commerce with Nicaragua . . .”), and the sentence then conveys
a perfectly comprehensible idea.

   Thus, in the present instance a literal analysis of the sentence contain-
 ng the words requiring interpretation leads to one of the proposed mean-
 ngs being preferred over the other.
   53. The preceding finding is supported by three additional arguments
which all point to the same conclusion.
   54. First, “objetos” is used in another article of the 1858 Treaty, Arti-
cle VIII, in which context it can only have the abstract meaning of
“purposes” or “subjects” : “Nicaragua se compromete á no concluir otro
 contrato) sobre los expresados objetos . . .” (“Nicaragua engages not to
conclude any other contract for those purposes . . .”).
   It is reasonable to infer that the Parties tended to understand “objetos”
 n its abstract sense, or, at least, that this meaning was familiar to them in
 heir treaty practice.
   55. Second, a further indication may be deduced from the “Cañas-
Martinez” Peace Treaty signed by the Parties on 8 December 1857 but
which was never ratified and hence did not enter into force. On the ques-
 ion of navigation on the San Juan, this instrument, replaced by the
1858 Treaty of Limits, which repeats some of the earlier provisions,
 ncluded the expression “artículos de comercio”, which undoubtedly
 ranslates as “articles” or “goods” of commerce. This would tend to show
 hat when the Parties at the time wished to refer to physical property
giving rise to commercial transactions, they used a term other than
“objetos de comercio”, a term having the advantage of being unambigu-
ous. Further, it is reasonable to believe that the Parties’ replacement of
one word with another in two successive instruments, the second of

30

which was drafted shortly after the first, indicates that the Parties wished
n the second to refer to something different from that in the first and
hat the two terms used must not be taken to mean the same thing.

  56. Finally, the Court also considers it significant that in 1887, when
 he two Parties each submitted an English translation of the 1858 Treaty
 o President Cleveland for use in the arbitration proceedings he was
asked to conduct, even though their translations were not identical on all
points, they did use the same phrase to render the original “con objetos
de comercio” : “for the purposes of commerce”.

   By itself, this argument is undoubtedly not conclusive, because the
only authoritative version of the instrument is the Spanish one and at the
 ime the Parties might have made the same mistake in translation, which
cannot be treated as an implicit amendment of the 1858 Treaty. It is also
no doubt true that Nicaragua might have paid insufficient heed to the
meaning of the term “objetos de comercio”, which was not at issue in the
questions submitted to the arbitrator ; this could be the explanation for a
 ranslation done by it in haste. It nonetheless remains the case that this
concurrence, occurring relatively soon after the Treaty was concluded, is
a significant indication that at the time both Parties understood “con
objetos de comercio” to mean “for the purposes of commerce”.
   This is the meaning accepted by the Court.

     (iii) The meaning of the word “commerce”
   57. The preceding finding does not entirely resolve the issue of inter-
pretation argued by the Parties. Now that it has been determined that
“con objetos de comercio” means “for the purposes of commerce”, the
meaning to be ascribed to the word “commerce” in the context of Arti-
cle VI remains to be determined, so that the exact extent of the right of
 ree navigation can be defined. On this point as well, the Parties disagree.
   58. In Nicaragua’s view, for purposes of the Treaty, “commerce” cov-
ers solely the purchase and sale of merchandise, of physical goods, and
excludes all services, such as passenger transport. This interpretation is
clearly consistent with Nicaragua’s contention, just rejected, that “con
objetos” means “with merchandise”. But, Nicaragua argues, even if the
phrase is translated as “for the purposes of commerce”, the result is the
same, because in 1858 the word “commerce” necessarily meant trade in
goods and did not extend to services, the inclusion of services being a
very recent development. Nicaragua admits that passengers were already
being transported on the San Juan in 1858, and even that this was an
especially profitable activity, but it adds that this activity did not fall
within the scope of what was commonly called “commerce” at that time.
As for the transport of tourists, there was no such activity at the time in
 he area in question.

31

   Nicaragua contends that it is important to give the words used in the
Treaty the meaning they had at the time the Treaty was concluded, not
 heir current meaning, which can be quite different, because this is the
only way to remain true to the intent of the drafters of the Treaty ; and
determining that intent is the main task in the work of interpretation.
   59. Costa Rica argues that “commerce” as used in the Treaty takes in
any activity in pursuit of commercial purposes and includes, inter alia,
 he transport of passengers, tourists among them, as well as of goods.
The Applicant adds that “commerce” is a broad concept which extends
even beyond for-profit activities ; in this regard it cites the nineteenth-
century editions of the Dictionary of the Royal Spanish Academy, which
gives the word “comercio” the second meaning of “comunicación y trato
de unas gentes ó pueblos con otros”, or communication and dealings of
some persons or peoples with others. It follows, argues Costa Rica, that
“commerce” includes movement and contact between inhabitants of the
villages on the Costa Rican bank of the San Juan River, and the use of
 he river for purposes of navigation by Costa Rican public officials pro-
viding the local population with essential services, in areas such as health,
education and security.

   60. The Court can subscribe to neither the particularly broad interpre-
 ation advocated by Costa Rica nor the excessively narrow one put for-
ward by Nicaragua.
   61. In respect of the first, the Court observes that, were it to be
accepted, the result would be to bring within the ambit of “navigation for
 he purposes of commerce” all, or virtually all, forms of navigation on
 he river. If that had been the intent of the parties to the Treaty, it would
be difficult to see why they went to the trouble of specifying that the right
of free navigation was guaranteed “for the purposes of commerce”, given
 hat this language would have had virtually no effect. While Costa Rica
did maintain in the hearings that the phrase “for the purposes of com-
merce” in the context of Article VI did not result in restricting the scope
of the “right of free navigation” granted earlier in the same sentence, but
rather was intended to enlarge that right, the Court cannot adopt this
view : expressly stating the purpose for which a right may be exercised
 mplies in principle the exclusion of all other purposes and, consequently,
 mposes the limitation thus defined on the field of application of the right
 n question — subject to the possibility that the right may be exercisable
beyond that scope on separate legal bases.
   Thus, the language found in Article VI means that the right of free
navigation granted to Costa Rica in that provision applies exclusively
within the ambit of navigation “for the purposes of commerce” and
ceases to apply beyond that ambit ; the bounds of which it is now for the
Court to determine. This determination is without effect on the existence
of any right of navigation which Costa Rica may enjoy pursuant to pro-
visions other than Article VI.
   62. In respect of the narrow interpretation advanced by Nicaragua,

32

 he Court observes that it is supported mainly by two arguments : the first
 s based on the Respondent’s interpretation of the phrase “con objetos”,
which has just been rejected ; the second is based on the assertion that
“commerce” should be given the narrow meaning it had when the Treaty
was entered into.
   63. The Court does not agree with this second argument.
   It is true that the terms used in a treaty must be interpreted in light of
what is determined to have been the parties’ common intention, which is,
by definition, contemporaneous with the treaty’s conclusion. That may
 ead a court seised of a dispute, or the parties themselves, when they seek
 o determine the meaning of a treaty for purposes of good-faith compli-
ance with it, to ascertain the meaning a term had when the treaty was
drafted, since doing so can shed light on the parties’ common intention.
The Court has so proceeded in certain cases requiring it to interpret a
 erm whose meaning had evolved since the conclusion of the treaty at
 ssue, and in those cases the Court adhered to the original meaning (to
 his effect, see, for example, the Judgment of 27 August 1952 in the case
concerning Rights of Nationals of the United States of America in
Morocco (France v. United States of America) (I.C.J. Reports 1952,
p. 176), on the question of the meaning of “dispute” in the context of a
 reaty concluded in 1836, the Court having determined the meaning of
 his term in Morocco when the treaty was concluded ; the Judgment of
13 December 1999 in the case concerning Kasikili/Sedudu Island (Bot-
swana/Namibia) (I.C.J. Reports 1999 (II), p. 1062, para. 25) in respect
of the meaning of “centre of the main channel” and “thalweg” when the
Anglo-German Agreement of 1890 was concluded).
   64. This does not however signify that, where a term’s meaning is no
 onger the same as it was at the date of conclusion, no account should
ever be taken of its meaning at the time when the treaty is to be inter-
preted for purposes of applying it.
   On the one hand, the subsequent practice of the parties, within the
meaning of Article 31 (3) (b) of the Vienna Convention, can result in a
departure from the original intent on the basis of a tacit agreement
between the parties. On the other hand, there are situations in which the
parties’ intent upon conclusion of the treaty was, or may be presumed to
have been, to give the terms used — or some of them — a meaning or
content capable of evolving, not one fixed once and for all, so as to make
allowance for, among other things, developments in international law. In
such instances it is indeed in order to respect the parties’ common inten-
 ion at the time the treaty was concluded, not to depart from it, that
account should be taken of the meaning acquired by the terms in ques-
 ion upon each occasion on which the treaty is to be applied.
   65. A good illustration of this reasoning is found in the Judgment
handed down by the Court on 18 December 1978 in the case concerning
Aegean Sea Continental Shelf (Greece v. Turkey) (I.C.J. Reports 1978,
p. 3).
   Called upon to interpret a State’s reservation to a treaty excluding

33

rom the Court’s jurisdiction “disputes relating to territorial status” of
hat State, where the meaning of “territorial status” was contested, the
Court stated :
        “Once it is established that the expression ‘the territorial status of
     Greece’ was used in Greece’s instrument of accession [to the General
     Act of 1928] as a generic term denoting any matters comprised
     within the concept of territorial status under general international
     law, the presumption necessarily arises that its meaning was intended
     to follow the evolution of the law and to correspond with the mean-
     ing attached to the expression by the law in force at any given time.
     This presumption, in the view of the Court, is even more compelling
     when it is recalled that the 1928 Act was a convention for the pacific
     settlement of disputes designed to be of the most general kind and of
     continuing duration, for it hardly seems conceivable that in such a
     convention terms like ‘domestic jurisdiction’ and ‘territorial status’
     were intended to have a fixed content regardless of the subsequent
     evolution of international law.” (Aegean Sea Continental Shelf
     (Greece v. Turkey), Judgment, I.C.J. Reports 1978, p. 32, para. 77.)
  66. Though adopted in connection with the interpretation of a reserva-
ion to a treaty, the Court’s reasoning in that case is fully transposable
or purposes of interpreting the terms themselves of a treaty.

   It is founded on the idea that, where the parties have used generic
 erms in a treaty, the parties necessarily having been aware that the
meaning of the terms was likely to evolve over time, and where the treaty
has been entered into for a very long period or is “of continuing dura-
 ion”, the parties must be presumed, as a general rule, to have intended
 hose terms to have an evolving meaning.
   67. This is so in the present case in respect of the term “comercio” as
used in Article VI of the 1858 Treaty. First, this is a generic term, refer-
ring to a class of activity. Second, the 1858 Treaty was entered into for an
unlimited duration ; from the outset it was intended to create a legal
régime characterized by its perpetuity.
   68. This last observation is buttressed by the object itself of the Treaty,
which was to achieve a permanent settlement between the parties of their
 erritorial disputes. The territorial rules laid down in treaties of this type
are, by nature, particularly marked in their permanence, for, as the Court
has recently recalled :
        “[I]t is a principle of international law that a territorial régime
     established by treaty ‘achieves a permanence which the treaty itself
     does not necessarily enjoy’ and the continued existence of that
     régime is not dependent upon the continuing life of the treaty under
     which the régime is agreed” (Territorial and Maritime Dispute (Nica-
     ragua v. Colombia), Preliminary Objections, I.C.J. Reports 2007 (II),
     p. 861, para. 89).

34

   69. This is true as well of the right of free navigation guaranteed to
Costa Rica by Article VI. This right, described as “perpetual”, is so
closely linked with the territorial settlement defined by the Treaty — to
such an extent that it can be considered an integral part of it — that it is
characterized by the same permanence as the territorial régime stricto
sensu itself.
   70. The Court concludes from the foregoing that the terms by which
 he extent of Costa Rica’s right of free navigation has been defined,
 ncluding in particular the term “comercio”, must be understood to have
 he meaning they bear on each occasion on which the Treaty is to be
applied, and not necessarily their original meaning.
   Thus, even assuming that the notion of “commerce” does not have
 he same meaning today as it did in the mid-nineteenth century, it is the
present meaning which must be accepted for purposes of applying the
Treaty.
   71. Accordingly, the Court finds that the right of free navigation in
question applies to the transport of persons as well as the transport of
goods, as the activity of transporting persons can be commercial in
nature nowadays. This is the case if the carrier engages in the activity for
profit-making purposes. A decisive consideration in this respect is
whether a price (other than a token price) is paid to the carrier — the
boat operator — by the passengers or on their behalf. If so, then the
carrier’s activity is commercial in nature and the navigation in question
must be regarded as “for the purposes of commerce” within the meaning
of Article VI. The Court sees no persuasive reason to exclude the trans-
port of tourists from this category, subject to fulfilment of the same
condition.

   On the other hand, any navigation not carried out either to transport
goods intended to form the subject of commercial transactions or to
 ransport passengers in exchange for money paid by them or on their
behalf cannot be regarded as falling within the “purposes of commerce”
under Article VI. That is the case, in particular, of navigation by vessels
used in the performance of governmental activities or to provide public
services which are not commercial in nature.

b) The activities covered by the right of free navigation belonging to
   Costa Rica
  72. Based on the foregoing, the Court is now in a position to deter-
mine with greater precision the types of activities which are covered by
Costa Rica’s right of free navigation, and those which are not.

   For the sake of convenience, the Court, in addressing this issue, will
distinguish between private navigation — that is to say navigation by ves-
sels belonging to private owners — and that of “official (or public)
vessels” — that is to say vessels which are the property of the Republic of

35

Costa Rica including all its public authorities —, although this distinc-
ion, as will be explained below, is of only limited relevance.

     (i) Private navigation
  73. As has just been said, two types of private navigation are certainly
covered by the right of free navigation pursuant to Article VI of the
1858 Treaty : the navigation of vessels carrying goods intended for com-
mercial transactions ; and that of vessels carrying passengers who pay a
price other than a token price (or for whom a price is paid) in exchange
 or the service thus provided.

   In the first instance, the commercial activity is conducted by persons
who are the owners of the goods intended for sale. These persons may
 hemselves be carried on the vessel : they can also entrust their goods for
carriage to the vessel’s operator for an agreed price or free of charge.
This last aspect is of no relevance : in any event, navigation which is car-
ried out in order to transport goods intended for sale, or goods that have
 ust been purchased, in the context of a commercial exchange must be
regarded as taking place “for the purposes of commerce”, whether or not
 he owner of the goods is onboard the vessel, and whether or not the ves-
sel’s operator has been paid to provide carriage. It is understood that
navigation “for the purposes of commerce” also includes the return jour-
ney of persons who have transported goods intended for sale.

  In the second instance, however, the fact that the vessel’s owner
receives payment for his activity is critical. Indeed, if the carriage of pas-
sengers is considered, it is not the passengers themselves who are exercis-
 ng a commercial activity (unless they are travelling in order to transport
goods, in which case the journey falls under the previous instance), it is
 he carrier, provided that he does so to make a profit.

  74. The question was raised as to whether the navigation of vessels
belonging to the inhabitants of the villages on the Costa Rican bank of
 he river in order to meet the basic requirements of everyday life, such as
 aking children to school or in order to give or receive medical treatment,
was protected by the right of free navigation when it is carried out free of
charge. The Parties discussed the issue : according to Nicaragua the
answer is no, since the Respondent considers that only the carriage of
goods benefits from the guarantee provided by Article VI of the Treaty ;
according to Costa Rica the answer is yes, based on the particularly
broad definition of “commerce” adopted by the Applicant.

   75. The Court has already indicated that it could not subscribe to a
definition of the word “commerce” as broad as the one put forward by
Costa Rica. It has also indicated (in paragraph 71 above) that the car-
riage of passengers free of charge, or the movement of persons on their

36

own vessels for purposes other than the conduct of commercial transac-
 ions, could not fall within the scope of “navigation for the purposes of
commerce” within the meaning of Article VI of the 1858 Treaty.
   76. It does not necessarily follow that such activities are not at all cov-
ered by freedom of navigation : other provisions of the 1858 Treaty may
have the effect of guaranteeing the right of the inhabitants of the
Costa Rican bank to navigate on the river, within certain limits, even
when they are not doing so within the context of commercial activities.

   77. In this regard, the Court is of the opinion that there is reason to
 ake into account the provisions of the Treaty as a whole, especially those
fixing the boundary between the two States, in order to draw, if need be,
certain necessary implications. In other words, even if no provision
expressly guaranteeing a right of non-commercial navigation to the inhab-
 tants of the Costa Rican bank can be found in the Treaty, the question
must be asked whether such a right does not flow from other provisions
with a different purpose, but of which it may, to a certain extent, be the
necessary consequence.
   78. As has been said, the two States decided, by the Treaty of Limits,
 o fix their common boundary on the south bank of the San Juan River
along the whole stretch of the river running from its mouth to a point
 ocated three English miles downstream from Castillo Viejo. This was
decided in Article II of the 1858 Treaty. At the time, there was already a
population inhabiting the Costa Rican side of the boundary thus defined,
 hat is to say living on the bank of the river or not far from it. In view of
 he great difficulty of travelling inland, due to the limited inland commu-
nications network, that population commonly used and still uses the river
 or travel for the purpose of meeting the essential needs of everyday life
which require expeditious transportation, such as transport to and from
school or for medical care.

  79. The Court is of the opinion that it cannot have been the intention
of the authors of the 1858 Treaty to deprive the inhabitants of the
Costa Rican bank of the river, where that bank constitutes the boundary
between the two States, of the right to use the river to the extent neces-
sary to meet their essential requirements, even for activities of a non-
commercial nature, given the geography of the area. While choosing, in
Article II of the Treaty, to fix the boundary on the river bank, the parties
must be presumed, in view of the historical background to the conclusion
of this Treaty and of the Treaty’s object and purpose as defined by the
Preamble and Article I, to have intended to preserve for the Costa
Ricans living on that bank a minimal right of navigation for the purposes
of continuing to live a normal life in the villages along the river. The
Court considers that while such a right cannot be derived from the
express language of Article VI, it can be inferred from the provisions
of the Treaty as a whole and, in particular, the manner in which the
boundary is fixed.

37

     (ii) “Official vessels”

   80. It is clear that the 1858 Treaty does not establish, in its Article VI,
any special régime for “official” (or “public”) vessels.
   The only criterion provided for by Article VI is based not on the public
or private ownership of the vessel but on the purpose of navigation :
either it is undertaken for the “purposes of commerce” and benefits from
 he freedom established ; or it is undertaken for purposes other than
“commerce” and it does not. From this point of view the distinction
between public and private vessels is devoid of legal significance. In the
same way that a part of private navigation is not covered by the “per-
petual right of free navigation” (in the case of pleasure craft for example),
conversely, it is not inconceivable that “public vessels” might sail for the
“purposes of commerce”, if they met the conditions on which such a
characterization depends.
   81. In reality, when debating the question of “official vessels” the
Parties particularly had in mind those used by the Costa Rican authori-
 ies for the exercise of public order activities — such as the police and
customs — or for the provision of public services having no object of
financial gain and therefore no commercial character.
   82. As has already been noted (paragraph 49 above), the Cleveland
Award only came to a decision regarding Costa Rican vessels of war and
revenue service vessels, by denying the former the right to navigate on the
San Juan and authorizing the navigation of the latter “as may be related
and connected to her enjoyment of the ‘purposes of commerce’ accorded
 o her in said article [Article VI] or as may be necessary to the protection
of said enjoyment”. Nothing can thus be inferred from this regarding the
navigation of other Costa Rican official vessels.
   83. In the light of the foregoing, the Court is of the opinion that, as a
general rule, the navigation of Costa Rican vessels for the purposes of
public order activities and public services with no object of financial gain,
 n particular police vessels, lies outside the scope of Article VI of the
1858 Treaty, with the exception of revenue service vessels, the question of
which was settled by the 1888 arbitration. Further, it is not convinced
 hat a right for Costa Rica to sail such vessels can be inferred from Arti-
cle IV of the Treaty, according to which “Costa Rica shall also be
obliged, for the part that belongs to her of the banks of the San Juan
River . . . to contribute to the security thereof in the same manner as the
 wo Republics shall contribute to its defence in case of aggression from
abroad”. This provision, contrary to what Costa Rica contends, does not
accord it any right of navigation in ordinary circumstances. It places an
obligation upon it to “safeguard” the river from within its own territory.

  Moreover, the Court considers that, in any event, Costa Rica has not
proved its assertion that river transport is the only means to supply its
police posts located along the river bank or to carry out the relief of the
personnel stationed in them. Indeed, the materials in the case file show

38

hat the posts in question are accessible, for example, by using the Costa
Rican rivers communicating with the San Juan, in proximity of which
hey are located.

   Lastly, for the reasons set out above (paragraph 40), Costa Rica can-
not invoke the “Cuadra-Lizano” Joint Communiqué of 30 July 1998 in
order to claim a right to navigate with official vessels which are armed or
 ransporting arms.
   84. Nonetheless, the Court is of the opinion that the reasons given
above (in paragraphs 78 and 79) with regard to private vessels which
navigate the river in order to meet the essential requirements of the popu-
 ation living on the river bank, where expeditious transportation is a con-
dition for meeting those requirements, are also valid for certain Costa
Rican official vessels which in specific situations are used solely for the
purpose of providing that population with what it needs in order to meet
 he necessities of daily life, as defined in paragraph 78 above.

   Consequently, this particular aspect of navigation by “official vessels”
 s covered by the right of navigation defined in paragraph 79 above : this
right is not guaranteed by Article VI of the Treaty but is inferred from
 he provisions of the Treaty as a whole, in particular from the fixing of
 he boundary along the river bank.

       III. NICARAGUA’S POWER OF REGULATION OF NAVIGATION

   85. In this part of the Judgment the Court addresses the power of
Nicaragua to regulate the navigation of that part of the San Juan River
 n which Costa Rica has the right of navigation as determined in Part II
of the Judgment. In respect of matters lying outside the scope of Costa
Rica’s right of free navigation, and in respect of other parts of the river,
which are not subject to the régime of the 1858 Treaty, Nicaragua, as
sovereign, has complete power of regulation.

                         1. General Observations
  86. In their written pleadings, the Parties disagreed about the extent or
even the very existence of the power of Nicaragua to regulate the use of
 he river so far as Costa Rica was concerned. In the course of the oral
proceedings that difference of positions largely disappeared. However,
 he Parties continue to disagree on the extent of the regulatory power of
Nicaragua and on certain measures which Nicaragua has adopted and
continues to apply.
  In the first part of the oral proceedings, Nicaragua states that whatever
 he precise nature and extent of Costa Rica’s rights within the provisions
of the Treaty of Limits and the Cleveland Award, Nicaragua

39

     “must have the exclusive competence to exercise the following regu-
     latory powers : (a) the protection and maintenance of the right of
     navigation, that is to say, the power to maintain public order and
     standards of safety in respect of navigation ; (b) the protection of
     the border, including resort to immigration procedures in respect of
     foreign nationals navigating in Nicaragua’s territorial waters ; (c) the
     exercise of normal police powers ; (d) the protection of the environ-
     ment and natural resources ; and (e) the maintenance of the treaty
     provisions prescribing the conditions of navigation in accordance
     with the Treaty”.
   Costa Rica, while accepting that Nicaragua does have a power of regu-
 ation, asserts that Nicaragua’s sovereignty over the San Juan must be
seen as a part — an important part — of the fluvial régime established in
1858 and that the regulations enacted by Nicaragua must not infringe
Costa Rica’s perpetual right of free navigation. It states that the regula-
 ions must be lawful, public, reasonable, non-arbitrary and non-discrimi-
natory and adopted to fulfil a legitimate public purpose. Nicaragua
accepts Costa Rica’s statement of principle.

  The Parties disagree whether Nicaragua is obliged to notify Costa Rica
about the regulations it has made or to consult Costa Rica in advance
about proposed regulations. The Court rules on these differences in the
course of this part of the Judgment.

a) Characteristics

   87. For essentially the reasons given by the Parties, the Court con-
cludes that Nicaragua has the power to regulate the exercise by Costa Rica
of its right to freedom of navigation under the 1858 Treaty. That power
 s not unlimited, being tempered by the rights and obligations of the
Parties. A regulation in the present case is to have the following charac-
 eristics :
 1) it must only subject the activity to certain rules without rendering
     impossible or substantially impeding the exercise of the right of free
     navigation ;
 2) it must be consistent with the terms of the Treaty, such as the pro-
     hibition on the unilateral imposition of certain taxes in Article VI ;

3) it must have a legitimate purpose, such as safety of navigation, crime
   prevention and public safety and border control ;

4) it must not be discriminatory and in matters such as timetabling
   must apply to Nicaraguan vessels if it applies to Costa Rican ones ;

5) it must not be unreasonable, which means that its negative impact on
   the exercise of the right in question must not be manifestly excessive

40

    when measured against the protection afforded to the purpose
    invoked.
  88. Costa Rica has challenged the role of environmental protection as
a reason for Nicaragua’s regulations, indicating that it is a pretext to
 mpose other requirements. But in the course of the oral proceedings
Costa Rica itself emphasized environmental matters. For its part, Nica-
ragua points to the evidence it presented showing that the San Juan River
and the Nicaraguan shore adjacent to it are extremely important and
gravely threatened natural reserves. It also refers to related international
obligations arising under the 1971 Ramsar Convention on Wetlands, the
1973 Convention on International Trade in Endangered Species of Wild
Fauna and Flora and the 1992 Convention on Biodiversity Conservation
and Protection of Priority Wild Areas in Central America.

   89. The Court considers that, over the course of the century and a half
since the 1858 Treaty was concluded, the interests which are to be pro-
 ected through regulation in the public interest may well have changed in
ways that could never have been anticipated by the Parties at the time :
protecting the environment is a notable example. As will appear from the
rulings made later in this Judgment (see paragraphs 104, 109, 118, 127
and 141), Nicaragua, in adopting certain measures which have been chal-
 enged, in the Court’s opinion, is pursuing the legitimate purpose of pro-
 ecting the environment.

  90. The Parties mentioned two other matters relating to regulation
making by Nicaragua. Costa Rica suggested that Nicaragua had not
adopted the measures and regulations being challenged in accordance
with Nicaraguan law. It did not, however, put before the Court the rele-
vant Nicaraguan constitutional and other requirements, and it did not
begin to indicate how such non-compliance with Nicaraguan law, assum-
 ng it to have occurred, could have significance in international law.

  Nicaragua contended that it had the power to regulate to “maintain
 he discipline of the Treaty”. It did not however indicate how that would
extend its regulatory powers in the present context.

  Because the Parties did not develop these two contentions, the Court
does not take them any further.

b) Notification
  91. The Court now turns to the question whether Nicaragua has a
egal obligation to notify Costa Rica of the measures it adopts to regulate
navigation on the river, or to give notice and consult with Costa Rica
prior to the adoption by Nicaragua of such measures. In answer to a

41

question from a Member of the Court, Nicaragua said that, as the exclu-
sive holder of sovereign authority and title over the river, under the
Treaty or otherwise, it had no obligation to consult with or inform
Costa Rica before making such regulations. Nicaragua states that never-
 heless, in the interests of good neighbourliness and as a courtesy, it had
regularly consulted with, informed and engaged in dialogue with
Costa Rica about the measures. It then documented that claim by refer-
ence to the disputed measures. Costa Rica’s answer to the question
reviews actions taken by Nicaragua and concludes that notice was not
given. Costa Rica, in its comments on Nicaragua’s answer, rejects Nica-
ragua’s position that it was under no legal obligation to consult, referring
 o what it says is the plain meaning of the text of Article VI of the Treaty.

   92. However, the part of the text of Article VI on which Costa Rica
depends concerns only the imposition of certain charges. Because that
provision does not extend to the full range of measures taken to regulate
navigation on the river, it cannot be read as imposing a general obliga-
 ion of notification and consultation, and the Court need not consider
 hat argument further. The remainder of Costa Rica’s comments and the
whole of Nicaragua’s addressed the contacts which each had had with the
other relating to the various measures.

   93. The Treaty imposes no express general obligation on either of the
Parties to notify the other about measures it is taking relating to naviga-
 ion on the river. It contains a requirement of agreement in Article VI
and a requirement of consultation in Article VIII which imply prior con-
 act between the Parties. Under Article VI the two Parties are required to
agree if they wish to impose any taxes in the situation contemplated by
 hat provision. Under Article VIII, if the Government of Nicaragua is
proposing to enter into an arrangement for canalization or transit on the
San Juan, it must first consult with the Government of Costa Rica about
 he disadvantages the project might occasion between the two Parties.

   94. Despite the lack of any specific provision in the Treaty relating to
notification, the Court sees three factors as together imposing an obliga-
 ion of notification of regulations in the circumstances of this case. The
first is to be found in the 1956 Agreement under which the Parties agreed
as follows :

        “The two Parties, acting in the spirit which should move the mem-
     bers of the Central American family of nations, shall collaborate to
     the best of their ability in order to carry out those undertakings and
     activities which require a common effort by both States and are of
     mutual benefit and, in particular, in order to facilitate and expedite
     traffic on the Pan American Highway and on the San Juan River

42

     within the terms of the Treaty of 15 April 1858 and its interpretation
     given by arbitration on 22 March 1888, and also in order to facilitate
     those transport services which may be provided to the territory of
     one Party by enterprises which are nationals of the other.”

   It is difficult to see how the obligation, set out under the terms of the
1956 Agreement, to collaborate to facilitate traffic on the San Juan and
 o facilitate transport services being provided in the territory of one coun-
 ry by the nationals of the other could be met without Nicaragua notify-
 ng Costa Rica of relevant regulations which it adopts.

   95. The second factor indicating that Nicaragua is obliged to notify
 he adoption of the regulations lies in its very subject-matter : navigation
on a river in which two States have rights, the one as sovereign, the other
 o freedom of navigation. Such a requirement arises from the practical
necessities of navigation on such a waterway. If the various purposes of
navigation are to be achieved, it must be subject to some discipline, a dis-
cipline which depends on proper notification of the relevant regulations.

   96. The third factor lies in the very nature of regulation. If the regula-
 ion is to subject the activity in question to rules, those undertaking that
activity must be informed of those rules. Notification will assist in the
better application of the regulation and the more effective pursuit of its
purposes. Notification will also enable those subject to the regulation to
bring facts within their particular knowledge to the attention of the
appropriate authority and to suggest other ways of pursuing and achiev-
 ng the relevant purpose.
   97. The Court concludes that Nicaragua is under an obligation to
notify Costa Rica of the regulations which it makes regarding the navi-
gational régime on the San Juan River. That obligation does not however
extend to notice or consultation prior to the adoption by Nicaragua of
such regulations.

c) The factual context
   98. The Court considers it necessary to provide a factual context for
 he assessment which follows of the particular Nicaraguan regulations
and actions challenged by Costa Rica. For this purpose, the Court recalls
 nformation presented to it about the population on the Costa Rican
bank, the tourists using the river, and Costa Rican access to the area.
According to Costa Rica, about 450 people, about half of them Nicara-
guans, live along the approximately 140 kilometres of the Costa Rican
bank. Nicaragua does not challenge these figures.

  99. According to Nicaragua, with an exception in 1982 when war time
emergency measures applied, Costa Rican tourist navigation has not

43

been prevented. Its figures show an increase from 711 in 1998 to 2,590 in
2004. Costa Rica does not challenge those figures nor, especially, their
 ncrease. Indeed, it drew on one of the Nicaraguan sources to show the
 ncrease in tourist numbers. Rather, its arguments about the impeding of
 ourism are general, depending in large part on the drawing of adverse
 nferences from the Nicaraguan requirements relating to the stopping and
 nspecting of vessels, the registering of passengers, the issue of visas and
 ourist cards, and the charging of fees. The evidence before the Court
 ndicates that much of that travel by tourists begins or ends within
Costa Rica, in the Sarapiquí and Colorado Rivers and includes only the
approximately 25 kilometres of the San Juan River between the points
where those two rivers join it. The vessels in which the tourists travel,
according to the limited record before the Court, appear to provide for
about ten passengers.

   100. The Parties have provided the Court with information about
measures Nicaragua has undertaken, and to this day continues to under-
 ake, in regulating the use of the river. Costa Rica contends that the
 nformation shows that Nicaragua is acting unlawfully, not for legitimate
purposes but for reasons of harassment, and unreasonably and in a dis-
criminatory way. Nicaragua submits the opposite.

   101. The Court notes that Costa Rica, in support of its claim of un-
 awful action, advances points of fact about unreasonableness by refer-
ring to the allegedly disproportionate impact of the regulations. The
Court recalls that in terms of well established general principle it is for
Costa Rica to establish those points (cf. Maritime Delimitation in the
Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 86,
para. 68, and cases cited there). Further, a court examining the reasona-
bleness of a regulation must recognize that the regulator, in this case the
State with sovereignty over the river, has the primary responsibility for
assessing the need for regulation and for choosing, on the basis of its
knowledge of the situation, the measure that it deems most appropriate
 o meet that need. It will not be enough in a challenge to a regulation
simply to assert in a general way that it is unreasonable. Concrete and
specific facts will be required to persuade a court to come to that
conclusion.

         2. The Legality of the Specific Nicaraguan Measures
                      Challenged by Costa Rica

  102. The Court now considers the measures adopted by Nicaragua
which are challenged by Costa Rica.

44

a) Requirement to stop and identification

   103. Costa Rica, in its final submissions, requests the Court to declare
 hat Nicaragua has the obligation not to require Costa Rican vessels to
stop at any Nicaraguan post along the river, and not to require their pas-
sengers to carry passports. Costa Rica contends that the requirements of
stopping and registering have the practical effect of rendering near impos-
sible the exercise of Costa Rica’s treaty rights of free navigation and that
 hey do not have much of a preventive effect. They cannot be regarded as
reasonable or lawful. Nicaragua says that, since before the 1960s, it has
required boat operators, including Nicaraguans, travelling on the river to
stop and identify themselves, their passengers and their cargoes. The
requirement, it says, is a fundamental element of its law enforcement
efforts in the area. It considers it quite telling that Costa Rica has, since
at least the 1960s, found it necessary to implement the same requirement
on its own rivers. Nicaragua explains that its army posts are spread
widely, leaving vast stretches of the river far removed from law enforce-
ment officials, and that it is only by keeping track of vessels as they enter
and leave the river that it can effectively monitor them to ensure that they
do not engage in unlawful activities. Nicaragua also cites environmental
protection and navigational safety as reasons for these requirements.

   104. So far as the lawfulness of the requirement is concerned, the
Court is of the opinion that Nicaragua, as sovereign, has the right to
know the identity of those entering its territory and also to know that
 hey have left. The power to require the production of a passport or iden-
 ity document of some kind is a legitimate part of the exercise of such a
power. Nicaragua also has related responsibilities in respect of law
enforcement and environmental protection. To that extent, the Nicara-
guan requirement that vessels stop on entering the river and leaving it
and that they be subject to search is lawful. The Court cannot, however,
see any legal justification for a general requirement that vessels continu-
 ng along the San Juan River, for example, from the San Carlos River to
 he Colorado River, stop at any intermediate point, in that case at Sara-
piquí.
   105. In its Memorial, Costa Rica also called attention to the right
which the vessels of Costa Rica and Nicaragua have under Article VI to
 and on either side of the river, which it cited in support of the proposi-
 ion that “[n]owhere is it stipulated that Costa Rican vessels have an
obligation to land on the Nicaraguan bank and report to the Nicara-
guan authorities”. Costa Rica provides no elaboration of this argument.
That is hardly surprising. The right of individual boatmen to tie up on
 he opposite bank for their own reasons and the power and responsi-
bility of the State which is sovereign over the river to regulate it, in the

45

public interest, are two distinct matters. They may operate in complete
harmony.

   106. Costa Rica submits that more frequent Nicaraguan patrolling of
 he river would be reasonable, lawful and sufficiently effective. However,
 t provides no evidence to demonstrate that such patrolling would achieve
 he purposes for which the requirement in question was introduced, nor
any specific evidence to show that this requirement actually interferes
with tourist traffic, in particular through the delays allegedly resulting
 rom its application. The Court recalls that it has been established that
 he number of tourists on the river has increased over the years the
requirement has been in force. In the Court’s opinion, Costa Rica has
 ailed to show that the regulation is unreasonable.

  107. Accordingly, the Court concludes that Costa Rica’s challenge to
 he requirement that vessels stop and their crew members and passengers
register and carry identity documents fails.

b) Departure clearance certificates
   108. Costa Rica challenges the departure clearance certificate which
Nicaragua requires be issued to vessels navigating on the river. As will
appear, it also challenges the associated fee or charge. According to
Costa Rica, before 1979, the practice was that Costa Rican boat opera-
 ors would obtain a departure clearance certificate from their own authori-
 ies (in Barra del Colorado or Puerto Viejo de Sarapiquí) and would
show it on request to the Nicaraguan authorities when entering the San
Juan. In the early 1980s the Nicaraguan authorities introduced their own
certificates and a related fee. The matter is now the subject of the 2001
Action Plan for Issuance of Departure Clearance Certificates in the San
Juan River of the Nicaraguan Army which provides as follows :

        “1. Vessels navigating in between the Military Control Posts over
     the San Juan River shall be issued a courtesy departure clearance
     certificate.
        2. The vessels and Nicaraguans whose domicile is close to the
     bank of the San Juan River and Costa Ricans whose domicile is
     located in the adjacent proximities shall be issued a courtesy depar-
     ture clearance certificate, which shall be valid for one month and
     must be renewed one day before the expiration date. These shall
     report to the Military Control Posts located along the San Juan
     River.
        3. The Port Captaincy in San Juan del Norte is hereby authorized
     to issue international departure clearance certificates to tourist ves-
     sels at a cost of US10.00 (ten dollars). These certificates may be

46

     issued by the Military Control Posts in Boca de Sarapiquí and
     El Delta only where vessels attempt to evade the Port Captaincy.

     . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
        5. Costa Rican vessels domiciled inland in Costa Rican territory
     that use the San Juan River as a transit route shall be issued an
     international departure clearance certificate in San Juan del Norte,
     subject to a symbolic fee equivalent to US5.00 (five dollars).”

  Nicaragua says that on entry into the river, vessels are inspected to
ensure that they are seaworthy, are free of fuel leaks that might pollute
 he river and are not carrying illegal cargo. In support of the regulation
Nicaragua also cites the minutes of a 1997 meeting of the Binational
Nicaragua-Costa Rica Commission :

        “With respect to the movement of vessels, it was considered nec-
     essary that they navigate only if duly registered by the posts that
     issue corresponding navigation certificates ; in this case, the posts at
     San Juan del Norte, San Carlos and Sarapiquí.”

   Nicaragua considers that in this minute Costa Rica accepted that there
was good reason for the registration and clearance requirements imposed
by Nicaragua. For Costa Rica, the minute was concerned with drug traf-
ficking and the passage meant only that the certificates should be obtained
by vessels from their respective countries.

   109. The Court considers that the purposes invoked by Nicaragua,
 .e., navigational safety, environmental protection and criminal law
enforcement, are legitimate ones. Further, the requirement for departure
clearance certificates does not appear to have imposed any significant
 mpediment on the exercise of Costa Rica’s freedom of navigation.

   The question may also be asked whether in terms of the earlier practice
 he inspection and certification should be undertaken by the State of
nationality of the boat operators, on the analogy of maritime navigation.
There is however no suggestion from Costa Rica that it would be in a
position to take up this responsibility. Nor does it point to a single case
where navigation has been impeded by an arbitrary refusal of a certifi-
cate.
   110. Accordingly Costa Rica’s claim that Costa Rican vessels need not
obtain departure clearance certificates cannot be upheld. The Court con-
siders the claim in respect of charges later (see paragraphs 120 to 124
below).

47

c) Visas and tourist cards

   111. In its final submissions, Costa Rica requests the Court to declare
 hat Nicaragua has the obligation not to require persons exercising the
right of free navigation to obtain Nicaraguan visas. Its claim also extends
 o tourist cards. Nicaragua states that, since at least 1979, all non-
nationals have been required to obtain tourist cards when they enter
Nicaragua, a requirement which includes entry into Nicaragua via the
San Juan River. It says that it makes an exception for residents of
Costa Rica riparian communities and for Costa Rican merchants who
regularly use the river to transport goods from one community to another.
It notes that those exemptions also apply to visas. Further, many of the
 ourists have the benefit of a visa waiver made by Nicaragua. Costa Rica
points to some evidence which puts in question the operation of the
exemptions for riparians.

   112. Costa Rica contends that the visa and tourist card requirements
are a breach of its right of free navigation. They impose unlawful limits
on the freedom. The exercise of the power would mean that the right to
 reedom of navigation becomes a privilege to be granted or denied at the
discretion of Nicaragua. For Nicaragua, the power to issue such docu-
ments is a simple consequence of its sovereignty over the river. Just as it
can require that such permissions be sought by non-nationals as they
enter its territory at Managua Airport, so too can it impose that require-
ment when non-nationals seek to enter the river over which it is sovereign.

  113. The Court observes at the outset that a distinction must be drawn
between requiring visas and requiring tourist cards. The power of a State
 o issue or refuse visas is a practical expression of the prerogative which
each State has to control entry by non-nationals into its territory.

   114. The requirement that passengers on Costa Rican vessels exercis-
 ng freedom of navigation, other than riparians and certain Costa Rican
merchants, have visas issued to them raises the question of who is entitled
 o and who may benefit from the right of freedom of navigation for com-
mercial purposes stated in Article VI of the 1858 Treaty. Under Article
VI of the Treaty the titleholder of the right of free navigation is Costa
Rica. Owners and operators of Costa Rican vessels benefit from that
right when navigating on the San Juan River for commercial purposes.
Passengers on vessels exercising Costa Rica’s right of free navigation also
benefit from that right, even if such passengers are not Costa Rican
nationals.
   115. The Court recalls that the power of a State to issue or refuse a
visa entails discretion. However in the present case Nicaragua may not
 mpose a visa requirement on those persons who, in line with what was

48

stated in the preceding paragraph, may benefit from Costa Rica’s right of
 ree navigation. If that benefit is denied, the freedom of navigation would
be hindered. In these circumstances, an imposition of a visa requirement
 s a breach of the Treaty right.

   116. The Court observes that in fact the number of tourists travelling
on the river in Costa Rican vessels has increased in the period these
requirements have been in force (see paragraph 99 above). Further, Costa
Rica has provided no evidence of arbitrary refusals of visas to tourists
and Nicaragua points out that it does not require nationals from coun-
 ries which are the source of most of the tourists visiting the San Juan to
obtain visas. Furthermore, it makes exceptions for residents of Costa
Rican riparian communities and Costa Rican merchants who regularly
use the river. None of this, however, affects the legal situation just stated.

   117. The Court accordingly concludes that Nicaragua may not require
persons travelling on Costa Rican vessels which are exercising their free-
dom of navigation on the river to obtain visas. It would of course be
another matter were they wishing to enter the land territory of Nicaragua
 rom the river or to travel up the river beyond its shared part towards
Lake Nicaragua.

   118. The Court adds one point to that conclusion. It has already recog-
nized that Nicaragua has the right to know the identity of those wishing
 o enter the river, for reasons, among others, of law enforcement and
environmental protection (paragraph 104 above). One measure which it
may properly take to protect such interests is to refuse entry to a particu-
 ar person for good reasons relating to that purpose. It can do that at the
point that the person identifies him or herself (see paragraphs 103 to 107
above). If such an action was justified in terms of the relevant purpose,
no breach of the freedom would be involved. A similar analysis may well
be available in terms of an emergency derogation of the right to navigate.

   119. With regard to the requirement by Nicaragua that tourist cards
be obtained, this does not appear to be intended to facilitate its control
over entry into the San Juan River. In the course of the proceedings
Nicaragua did no more than give some factual information about the
operation of the tourist cards and the exemptions already mentioned. It
referred to no legitimate purpose as justification for imposing this require-
ment. The requirement that passengers wishing to travel on Costa Rican
vessels which are exercising Costa Rica’s freedom of navigation on the
river must first purchase tourist cards is inconsistent with that right to
 reedom of navigation. The Court accordingly concludes that Nicaragua
may not require persons travelling on Costa Rican vessels which are exer-

49

cising Costa Rica’s freedom of navigation on the river to purchase a tour-
 st card.

d) Charges
   120. Costa Rica, in its final submissions, requests the Court to declare
 hat Nicaragua has an obligation not to impose any charges or fees on
Costa Rican vessels and their passengers for navigating on the river. The
claims relate to payments required in respect of departure clearance cer-
 ificates for vessels and visas and tourist cards for passengers. According
 o Nicaragua, they are not payments for navigating on the river, but for
 he service involved in the issue of the various documents. If Nicaragua
has no legal power to require the issuing of such documents, as the Court
has already held in respect of visas, then no charge or fee may of course
be required. The Court has dealt with the question of the payment for
 ourist cards in the previous paragraph. The matter does, however,
remain in respect of the issue of departure clearance certificates.
Costa Rica contends that the requirement is prohibited by the Treaty. In
1982 it protested against the imposition of a charge for the issuing of a
departure clearance certificate as a tax that is excluded by Article VI of
 he Treaty. In a later exchange, in 2001, Nicaragua contended that the
sum being charged was

     “not for navigating the San Juan River, nor does it constitute any
     type of tax, but is, rather, the amount charged for providing the
     departure clearance certificate service that both Nicaraguan and for-
     eign vessels in any Nicaraguan port, including those located in the
     said river, are charged when travelling to another State”.

Nicaragua recalls that, by decision of the President of Nicaragua and “to
strengthen the ties” between the two countries and Governments,
Costa Rican vessels, other than tourist vessels and those using the port of
San Juan del Norte, were to be issued with the certificate without pay-
ment. In response, Costa Rica again referred to Article VI, quoting the
 ast part of that provision, and contended that in effect no service was
rendered corresponding to the departure clearance certificate. Nicaragua,
says Costa Rica, ignores the plain text of Article VI of the Treaty of Lim-
 ts which provides that neither country may impose charges on the other,
except when there is agreement by both Governments.

  121. The final sentence of Article VI in its original Spanish text pro-
vides as follows :
       “Las embarcaciones de uno ú otro pais podrán indistintamente
     atracar en las riberas del rio en la parte en que la navegación es
     común, sin cobrarse ninguna clase de impuestos, á no ser que se
     establezcan de acuerdo entre ambos Gobiernos.” (For the full

50

     text of Article VI in the Spanish original, see paragraph 43
     above.)
The English translations of that sentence provided to President Cleveland
by the Parties were respectively as follows :
        “The vessels of both countries shall have the power to land indis-
     criminately on either side of the river, at the portion thereof where
     the navigation is common ; and no charges of any kind, or duties,
     shall be collected unless when levied by mutual consent of both Gov-
     ernments.” (Costa Rica)

     and
        “The vessels of both countries may indiscriminately approach the
     shores (atracar) of the river where the navigation is common to
     both, without the collection of any class of impost unless so estab-
     lished by the two Governments.” (Nicaragua)

  122. In the Court’s view, the final sentence of Article VI has two ele-
ments. It first confers a right on the vessels of each Party to land on the
bank of the other. Second, that sentence provides that the exercise of that
particular right is not to be the subject of an impost or tax. Just as the
exercise of the right of navigation on the river is to be free and not the
subject of any payment, so is stopping on the other bank. The Court does
not read the provision as extending beyond that particular situation and
as prohibiting charges for services lawfully and properly required by
Nicaragua and rendered to vessels navigating on the river.

   123. The Court now turns to the issue raised by Costa Rica in its cor-
respondence with Nicaragua in 2001 (see paragraph 120 above) : what is
 he service being rendered for the certificate and the charge. As the Court
understands the situation, Costa Rica does not challenge the right of
Nicaragua to inspect vessels on the river for safety, environmental and
 aw enforcement reasons ; as noted, it accepted it in respect of drug traf-
ficking in 1997. In the Court’s opinion, that right would in any event be
an aspect of Nicaraguan sovereignty over the river. But those actions of
policing by the sovereign do not include the provision of any service to
boat operators. In respect of Costa Rican vessels exercising freedom of
navigation on the river, the payment must be seen as unlawful.

51

  124. Accordingly, Costa Rica’s claim in respect of the charge for the
departure clearance certificate for those vessels must be upheld.

e) Timetabling
   125. In its final submissions, Costa Rica requests the Court to declare
 hat Nicaragua has the obligation not to impose impediments to the exer-
cise of the right of free navigation, inter alia, by timetables for naviga-
 ion. Nicaragua, according to Costa Rica, in 1999 restricted navigation
on the San Juan River from 6.00 a.m. to 5.30 p.m. Costa Rica in 2001
protested against “this unilateral restriction . . ., given that it is not stipu-
 ated by any agreement between the two States”. In its response, Nicara-
gua noted “its right and obligation, as the sovereign State, to adopt the
regulations necessary to guarantee the safety of the people and vessels
 ravelling along the river and avoid all manner of criminal activities”.
Costa Rica replied that Nicaragua could not establish these limitations
unilaterally since none of the instruments in force between the two coun-
 ries established that it may do so. In the course of 2001 the Action Plan
of the Army of Nicaragua for issuance of Departure Clearance Certifi-
cates on the River set out this requirement : “As a measure for protecting
human life and safe navigation, navigation over the San Juan River
remains suspended between 5.00 p.m. and 5.00 a.m.” Costa Rica con-
 ends that the prohibition is a violation of a right which is “perpetual”
and “free”.
   126. The Court recalls that the exercise of a power to regulate may
 egitimately include placing limits on the activity in question. The limited
evidence before the Court does not demonstrate any extensive use of the
river for night time navigation : tourist vessels, understandably, use the
river during daylight hours ; emergencies are acknowledged by Nicaragua
 o be an exception ; and, according to the Nicaraguan Military Com-
mander in the area between 1992 and 1995, “by long standing custom
night time navigation of the river has not been practised, except in emer-
gency situations”. He explained that the prohibition “applies to everyone,
Nicaraguans included. The river is treacherous to navigate at night, since
 here are no lights, and fallen logs and sandbars, invisible in the dark, are
prevalent, as are crocodiles.” The limited interference with Costa Rica’s
 reedom to navigate does not, in the Court’s opinion, amount to an un-
 awful impediment to that freedom, particularly when the purposes of the
regulation are considered.

  127. Costa Rica’s challenge to the regulation also applies to one of
 hose purposes, environmental protection. As already indicated, the Court
considers that that is a legitimate purpose and accordingly rejects this
ground for attacking the night time prohibition.

52

   128. Finally, Costa Rica submits that the regulation is unreasonable.
The purposes could have been better achieved by other means, it says, in
particular by requiring boats travelling at night to have lights and to have
dangerous places marked by lights. Costa Rica does not address the prac-
 icality of such measures, including their cost, nor their effectiveness. It
proceeds only by way of assertion. It has not, in the Court’s opinion,
come near to establishing that the regulation is unreasonable.

  129. Accordingly, Costa Rica’s claim in respect of timetabling cannot
be upheld.

f) Flags
   130. In its final submissions, Costa Rica requests the Court to declare
 hat Nicaragua has an obligation not to impose an impediment on the
exercise of the right of free navigation, inter alia, by conditions relating
 o flags. Costa Rica claims that the right of its vessels to fly its own flag
and not to fly the Nicaraguan flag is a corollary right to the right of free
navigation under the Treaty. For Nicaragua, the requirement that vessels
fly its flag when navigating in its waters, including in the San Juan, is an
attribute of Nicaragua’s sovereignty, and is a matter of international cus-
 om and practice. It is a reasonable and non-burdensome requirement.

   131. The Parties also disagree on the facts. While Costa Rica suggests
 hat Nicaragua requires all of its vessels to fly the Nicaraguan flag, it has,
 n the Court’s view, provided no persuasive evidence of this. Further, the
relevant Nicaraguan document, the Action Plan of the Army of Nicara-
gua for Issuance of Departure Clearance Certificates in the San Juan
River, while requiring its flag to be flown, adds an important qualifica-
 ion : “If vessels have no flag pole, they shall fly the flag on the stern
 urret if they have one.” Nicaragua’s counsel said that that limit meant
 he regulation was inapplicable to the vast majority of Costa Rican
boats that use the river which are almost all small wooden “pangas” or
simple boats with a small outboard motor and no means to
display flags. Costa Rica also contends that Nicaragua does not allow
 ts vessels to fly the Costa Rican flag. Nicaragua provides evidence from
a military officer who had responsibility in the San Juan area from
2002 to 2005 that Costa Rican vessels could fly the Costa Rican flag so
 ong as they flew the Nicaraguan flag as well ; in practice, that meant only
 hat the Costa Rican tourist boats kept a Nicaraguan flag on board
and hoisted it during the times they were on the San Juan. Finally,
as counsel for Costa Rica accepts, there is no evidence of any Costa
Rican vessel being prevented from navigating on the river for breach of
 his requirement.

53

   132. The Court considers that Nicaragua, which has sovereignty over
 he San Juan River, may, in the exercise of its sovereign powers, require
Costa Rican vessels fitted with masts or turrets navigating on the river to
fly its flag. This requirement cannot in any respect be considered an
 mpediment to the exercise of the freedom of navigation of Costa Rican
vessels under the 1858 Treaty. The Court observes, moreover, that it has
not been presented with any evidence that Costa Rican vessels have been
prevented from navigation on the San Juan River as a result of Nicara-
gua’s flag requirement. Accordingly, Costa Rica’s claim that Nicaragua
has violated its obligation not to impose impediments on the exercise of
 he right of free navigation by establishing conditions relating to flags
cannot be upheld.

g) Conclusion
  133. It follows from the above that Nicaragua has exercised its powers
of regulation regarding the matters discussed under subsections (2) (a),
(b), (e) and (f) of Section III above in conformity with the 1858 Treaty ;
but that it is not acting in conformity with the obligations under the
1858 Treaty when it implements measures requiring visas and tourist
cards and the payment of charges in respect of vessels, boat operators
and their passengers exercising the freedom of navigation (paragraphs 111
 o 124 above).

                         IV. SUBSISTENCE FISHING

   134. In its final submissions, Costa Rica requests the Court to declare
 hat Nicaragua has the obligation to permit riparians of the Costa Rican
bank to fish in the river for subsistence purposes. Nicaragua, in addition
 o challenging this claim on the merits, has also said that it is inadmissi-
ble. The Court considers that issue first.
   135. Costa Rica did not include the claim in respect of fishing in its
Application. It did however include it in its Memorial, explaining that it
was only after the institution of the proceedings that Nicaragua had
begun to prevent the riparians from engaging in fishing. In its Counter-
Memorial, Nicaragua asserted that the 1858 Treaty did not provide for
any fishing rights ; it also challenged the existence of any customary right
of subsistence fishing by Costa Rican riparians. It was only in its Rejoin-
der that Nicaragua submitted that the claim was not admissible on the
ground that this particular claim was not included nor was it implicit in
 he Application. Nicaragua also asserts that this claim did not arise
directly out of the subject-matter of the Application.
   136. Costa Rica in the first round of the oral hearings, as well as dis-
cussing the merits of the claim, addressed its admissibility in some detail.
It submitted, first, that Nicaragua, by pleading to the merits in the Counter-

54

Memorial, implicitly accepted the admissibility of the fisheries claim ; sec-
ond, that Nicaragua was to be taken as having consented to the jurisdic-
 ion of the Court and is debarred from raising the issue ; third,
 hat Costa Rica had reserved the right to supplement and modify its
Application ; fourth, that the claim was implicitly included as being
“a step to aggravate and extend the dispute”, a matter included in the
Application ; and, fifth, the claim fell within “other applicable rules
of international law” also referred to in the Application. Nicaragua
did not respond to the specific elements of those arguments and, except
 or a brief reference back to its written pleadings, confined itself to the
merits, denying that Costa Rica had established the existence of a
customary right.

   137. The Court recalls at the outset that admissibility is distinct from
 urisdiction. In the current instance the Court is dealing with the question
of admissibility. It is further recalled that it is for the Court to determine
 n the light of the circumstances of each case whether an application is
admissible (Certain Phosphate Lands in Nauru (Nauru v. Australia),
Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 240). Under
Article 40, paragraph 1, of the Statute of the Court, the “subject of
 he dispute” must be indicated in the Application ; as established in
 he Court’s jurisprudence, an additional claim must have been implicit in the
Application (Temple of Preah Vihear (Cambodia v. Thailand), Merits,
Judgment, I.C.J. Reports 1962, p. 36) or must arise “directly out of the
question which is the subject-matter of that Application” (Fisheries Juris-
diction (Federal Republic of Germany v. Iceland), Merits, Judgment,
I.C.J. Reports 1974, p. 203, para. 72).
   With regard to Nicaragua’s argument that Costa Rica’s claim relating
 o subsistence fishing is inadmissible on the grounds that Costa Rica
 ailed to include, even implicitly, the claim in its Application, the Court
notes that the alleged interferences by Nicaragua with the claimed right
of subsistence fishing post-date the filing of the Application. As to Nica-
ragua’s second argument that the claim does not arise directly out of the
subject-matter of the Application, the Court considers that in the circum-
stances of this case, given the relationship between the riparians and the
river and the terms of the Application, there is a sufficiently close connec-
 ion between the claim relating to subsistence fishing and the Applica-
 ion, in which Costa Rica, in addition to the 1858 Treaty, invoked “other
applicable rules and principles of international law”.

  138. In addition, the Court observes that, as appears from the argu-
ments on the merits which the Respondent has presented in the two
rounds of written pleadings and in two rounds of oral hearings, Nicara-
gua has not been disadvantaged by Costa Rica’s failure to give notice in
 he Application. Similarly, in terms of its responsibility for the due
administration of justice, the Court does not consider itself to have been

55

disadvantaged in its understanding of the issues by the lack of explicit
reference to the claim in respect of fisheries in the Application.

   139. Accordingly, Nicaragua’s objection to admissibility cannot be
upheld.
   140. The Court now turns to the merits of Costa Rica’s claim regard-
 ng subsistence fishing rights. Costa Rica submits that there has long been
a practice allowing the inhabitants of the Costa Rican bank of the
San Juan to fish in that river for subsistence purposes. That practice sur-
vived the Treaty of 1858. It is a customary right according to Costa Rica.
In support, it refers to a Royal Ordinance of 1540 under which the upper
part of the river, from the lake for 15 leagues, belonged to Nicaragua and
 he lower part to the Caribbean Sea to Costa Rica ; for the purposes of
navigation and fishing, the river and lake were to be common. It empha-
sizes the continuing practice of Costa Rican riparians of fishing for sub-
sistence purposes, which, according to Costa Rica, was not challenged by
Nicaragua until after the present proceedings were instituted. Nicaragua
responds that Costa Rica has failed to prove that the custom is estab-
 ished in such a manner that it has become binding on Nicaragua. While
 t is true that it has usually tolerated the limited use of the San Juan for
non-commercial fishing by Costa Rican riparians, this tolerance cannot
be seen as a source of a legal right. Moreover, Costa Rica, according to
Nicaragua, has constantly accepted that it has no rights except for those
stemming from the treaties and not from customary law. Finally, at the
hearings, Nicaragua reiterated that it “has absolutely no intention of pre-
venting Costa Rican residents from engaging in subsistence fishing activi-
 ies”. Costa Rica, in its final statement on the matter, asked the Court in
 he operative part of its Judgment to record and give effect to Nicara-
gua’s stated position that subsistence fishing will not be impeded.

   141. The Court recalls that the Parties are agreed that all that is in dis-
pute is fishing by Costa Rican riparians for subsistence purposes. There is
no question of commercial or sport fishing. The Court also notes that the
Parties have not attempted to define subsistence fishing (except by those
exclusions) nor have they asked the Court to provide a definition. Sub-
sistence fishing has without doubt occurred over a very long period.
Leaving aside for the moment the issue of fishing in the river from boats,
a point to which the Court will return, the Parties agree that the practice
of subsistence fishing is long established. They disagree however whether
 he practice has become binding on Nicaragua thereby entitling the ripar-
 ans as a matter of customary right to engage in subsistence fishing from
 he bank. The Court observes that the practice, by its very nature, espe-
cially given the remoteness of the area and the small, thinly spread popu-
 ation, is not likely to be documented in any formal way in any official
record. For the Court, the failure of Nicaragua to deny the existence of a

56

right arising from the practice which had continued undisturbed and
unquestioned over a very long period, is particularly significant. The
Court accordingly concludes that Costa Rica has a customary right. That
right would be subject to any Nicaraguan regulatory measures relating to
fishing adopted for proper purposes, particularly for the protection of
resources and the environment.

   142. The Court does not agree with Nicaragua’s contention that
Costa Rica accepted in the course of these proceedings that it had no
rights except those stemming from the treaties. Any statement that has
been made in that sense related solely to disputed navigation rights under
 he 1858 Treaty and other binding instruments ; the fisheries claim, from
 he outset, was based on custom.
   143. The Court does not however consider that the customary right
extends to fishing from vessels on the river. There is only limited and
recent evidence of such a practice. Moreover that evidence is principally
of the rejection of such fishing by the Nicaraguan authorities.
   144. Accordingly, the Court concludes that fishing by the inhabitants
of the Costa Rican bank of the San Juan River for subsistence purposes
 rom that bank is to be respected by Nicaragua as a customary right.

                V. THE CLAIMS MADE BY THE PARTIES IN
                       THEIR FINAL SUBMISSIONS

                      1. The Claims of Costa Rica

  145. In its final submissions to the Court at the end of the oral argu-
ment, Costa Rica made a number of distinct claims (see above, para-
graph 14).
  146. The principal purpose of its Application is to obtain from the
Court a declaration that Nicaragua has a certain number of obligations
 owards Costa Rica, Costa Rican vessels and their passengers, and the
 nhabitants of the Costa Rican bank of the San Juan River, and that
Nicaragua has violated these obligations which are listed under points (a)
 o (i) of the final submissions.
  The Court will uphold elements of this claim in the operative part of
 his Judgment to the extent that they correspond to the preceding rea-
soning and will dismiss the others.
  147. Costa Rica presents three further submissions : it requests the
Court to order Nicaragua to cease all the breaches of its obligations
which have a continuing character ; to find that Nicaragua should make

57

reparation to Costa Rica for the injury caused to it by the breaches iden-
 ified, in the form of the restoration of the prior situation and compensa-
 ion in an amount to be determined at a later stage ; and finally to give
assurances and guarantees that it will not repeat its unlawful conduct.

   148. As far as the first of these three submissions is concerned, it
should be recalled that when the Court has found that the conduct of a
State is of a wrongful nature, and in the event that this conduct persists
on the date of the judgment, the State concerned is obliged to cease it
 mmediately. This obligation to cease wrongful conduct derives both
 rom the general obligation of each State to conduct itself in accordance
with international law and from the specific obligation upon States
parties to disputes before the Court to comply with its judgments, pur-
suant to Article 59 of its Statute.
   It is not necessary, and it serves no useful purpose as a general rule, for
 he Court to recall the existence of this obligation in the operative para-
graphs of the judgments it renders : the obligation incumbent on the State
concerned to cease such conduct derives by operation of law from the
very fact that the Court establishes the existence of a violation of a con-
 inuing character.
   The Court may consider it appropriate, in special circumstances, to
mention that obligation expressly in the operative part of its judgment. It
sees no particular reason to do so in the present case.
   149. As for the second submission set forth in paragraph 147 above, it
should be recalled that the cessation of a violation of a continuing chara-
cter and the consequent restoration of the legal situation constitute a
 orm of reparation for the injured State. With regard to the claim for
compensation, the Court notes that Costa Rica has not submitted any
evidence capable of demonstrating that it has suffered a financially
assessable injury. The Court therefore will not uphold that part of the
submissions.
   150. Finally, while the Court may order, as it has done in the past, a
State responsible for internationally wrongful conduct to provide the
 njured State with assurances and guarantees of non-repetition, it will only
do so if the circumstances so warrant, which it is for the Court to assess.
   As a general rule, there is no reason to suppose that a State whose act
or conduct has been declared wrongful by the Court will repeat that act
or conduct in the future, since its good faith must be presumed (see Fac-
 ory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A,
No. 17, p. 63 ; Nuclear Tests (Australia v. France), Judgment, I.C.J.
Reports 1974, p. 272, para. 60 ; Nuclear Tests (New Zealand v. France),
Judgment, I.C.J. Reports 1974, p. 477, para. 63 ; and Military and Para-
military Activities in and against Nicaragua (Nicaragua v. United States
of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports
1984, p. 437, para. 101). There is thus no reason, except in special cir-
cumstances of which the Court is not aware in the present case, to order
a measure such as that requested by Costa Rica.

58

                      2. The Claims of Nicaragua

   151. In its final submissions, Nicaragua also submitted several claims
 o the Court.
   152. First of all, it requests the Court to dismiss all of Costa Rica’s
claims, either because the Respondent has not breached the obligations
 ncumbent upon it, or because the obligations allegedly breached do not
derive from any rule of international law.
   The Court will uphold this claim to the extent that it corresponds to
 he reasoning set out in the present Judgment in respect of Costa Rica’s
claims.
   153. Nicaragua adds a further submission. It requests the Court “to
make a formal declaration on the issues raised by Nicaragua in Section II
of Chapter VII of her Counter-Memorial, [and] in Section I, Chapter VI
of her Rejoinder”.
   The declaration requested is the following :
     “(i) Costa Rica is obliged to comply with the regulations for naviga-
          tion (and landing) in the San Juan imposed by Nicaraguan
          authorities in particular related to matters of health and secu-
          rity ;
     (ii) Costa Rica has to pay for any special services provided by
          Nicaragua in the use of the San Juan either for navigation or
          landing on the Nicaraguan banks ;

     (iii) Costa Rica has to comply with all reasonable charges for mod-
           ern improvements in the navigation of the river with respect to
           its situation in 1858 ;

     (iv) revenue service boats may only be used during and with special
          reference to actual transit of the merchandise authorized by
          Treaty ;
      (v) Nicaragua has the right to dredge the San Juan in order to
          return the flow of water to that obtaining in 1858 even if this
          affects the flow of water to other present day recipients of this
          flow such as the Colorado River.”
   The Court notes in this respect that Nicaragua indicated in the course
of the hearings that it would be satisfied to see such a “declaration”
appear in any part of the Judgment, either in the operative paragraph or
simply in the reasoning. It is therefore doubtful whether these can now be
viewed as formal submissions. The Court notes however that, in stating
his final submissions, the Agent of Nicaragua reiterated the Respondent’s
request on this point.
   154. In any case, the Court notes that the first two and the fourth
points on which Nicaragua has requested the “declaration” in reality
concern questions raised by Costa Rica and discussed by the Parties
 hroughout the proceedings. The reasoning of the present Judgment is

59

 herefore sufficient to respond to Nicaragua’s wish that Costa Rica’s
obligations towards it should be stated by the Court.
   155. As for the fifth point to be addressed in the requested “declara-
 ion”, on the assumption that it is in the nature of a counter-claim,
Costa Rica has cast doubt on its admissibility, arguing that it is not
“directly connected” with the subject-matter of Costa Rica’s claim, within
 he meaning of Article 80 of the Rules of Court. The same issue could
arise in respect of the third point.
   In any event it suffices for the Court to observe that the two questions
 hus raised were settled in the decision made in the Cleveland Award. It
was determined in paragraphs 4 to 6 of the third clause of the Award that
Costa Rica is not bound to share in the expenses necessary to improve
navigation on the San Juan River and that Nicaragua may execute such
works of improvement as it deems suitable, provided that such works do
not seriously impair navigation on tributaries of the San Juan belonging
 o Costa Rica.
   As Nicaragua has offered no explanation why the Award does not suf-
fice to make clear the Parties’ rights and obligations in respect of these
matters, its claim in this regard must be rejected.

                                  * * *
  156. For these reasons,
  THE COURT,
  (1) As regards Costa Rica’s navigational rights on the San Juan River
under the 1858 Treaty, in that part where navigation is common,

  (a) Unanimously,
  Finds that Costa Rica has the right of free navigation on the San Juan
River for purposes of commerce ;
  (b) Unanimously,
  Finds that the right of navigation for purposes of commerce enjoyed by
Costa Rica includes the transport of passengers ;
  (c) Unanimously,
  Finds that the right of navigation for purposes of commerce enjoyed by
Costa Rica includes the transport of tourists ;
  (d) By nine votes to five,
  Finds that persons travelling on the San Juan River on board
Costa Rican vessels exercising Costa Rica’s right of free navigation are
not required to obtain Nicaraguan visas ;
  IN FAVOUR :President Owada ; Judges Shi, Buergenthal, Abraham, Keith,
     Bennouna, Cançado Trindade, Yusuf, Greenwood ;

60

  AGAINST :   Judges Koroma, Al-Khasawneh, Sepúlveda-Amor, Skotnikov ;
       Judge ad hoc Guillaume ;
  (e) Unanimously,
  Finds that persons travelling on the San Juan River on board
Costa Rican vessels exercising Costa Rica’s right of free navigation are
not required to purchase Nicaraguan tourist cards ;
  (f) By thirteen votes to one,
  Finds that the inhabitants of the Costa Rican bank of the San Juan
River have the right to navigate on the river between the riparian com-
munities for the purposes of the essential needs of everyday life which
require expeditious transportation ;
  IN FAVOUR : President Owada ; Judges Shi, Koroma, Al-Khasawneh, Buer-
    genthal, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov,
    Cançado Trindade, Yusuf, Greenwood ;
  AGAINST : Judge ad hoc Guillaume ;

  (g) By twelve votes to two,
   Finds that Costa Rica has the right of navigation on the San Juan
River with official vessels used solely, in specific situations, to provide
essential services for the inhabitants of the riparian areas where expedi-
 ious transportation is a condition for meeting the inhabitants’ require-
ments ;
  IN FAVOUR : President Owada ; Judges Shi, Koroma, Al-Khasawneh,
    Buergenthal, Abraham, Keith, Sepúlveda-Amor, Bennouna, Cançado
    Trindade, Yusuf, Greenwood ;
  AGAINST : Judge Skotnikov ; Judge ad hoc Guillaume ;

  (h) Unanimously,
  Finds that Costa Rica does not have the right of navigation on the San
Juan River with vessels carrying out police functions ;
  (i) Unanimously,
   Finds that Costa Rica does not have the right of navigation on the San
Juan River for the purposes of the exchange of personnel of the police
border posts along the right bank of the river and of the re-supply of
 hese posts, with official equipment, including service arms and ammuni-
 ion ;
  (2) As regards Nicaragua’s right to regulate navigation on the San
Juan River, in that part where navigation is common,
  (a) Unanimously,
  Finds that Nicaragua has the right to require Costa Rican vessels and
 heir passengers to stop at the first and last Nicaraguan post on their
route along the San Juan River ;
  (b) Unanimously,

61

  Finds that Nicaragua has the right to require persons travelling on the
San Juan River to carry a passport or an identity document ;

  (c) Unanimously,
   Finds that Nicaragua has the right to issue departure clearance certifi-
cates to Costa Rican vessels exercising Costa Rica’s right of free naviga-
 ion but does not have the right to request the payment of a charge for
 he issuance of such certificates ;
  (d) Unanimously,
  Finds that Nicaragua has the right to impose timetables for navigation
on vessels navigating on the San Juan River ;
  (e) Unanimously,
  Finds that Nicaragua has the right to require Costa Rican vessels fitted
with masts or turrets to display the Nicaraguan flag ;
  (3) As regards subsistence fishing,
  By thirteen votes to one,
  Finds that fishing by the inhabitants of the Costa Rican bank of the
San Juan River for subsistence purposes from that bank is to be respected
by Nicaragua as a customary right ;
  IN FAVOUR : President Owada ; Judges Shi, Koroma, Al-Khasawneh, Buer-
    genthal, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade,
    Yusuf, Greenwood ; Judge ad hoc Guillaume ;
  AGAINST : Judge Sepúlveda-Amor ;

  (4) As regards Nicaragua’s compliance with its international obliga-
ions under the 1858 Treaty,
     (a) By nine votes to five,
   Finds that Nicaragua is not acting in accordance with its obligations
under the 1858 Treaty when it requires persons travelling on the San
Juan River on board Costa Rican vessels exercising Costa Rica’s right of
 ree navigation to obtain Nicaraguan visas ;

  IN FAVOUR : President Owada ; Judges Shi, Buergenthal, Abraham, Keith,
    Bennouna, Cançado Trindade, Yusuf, Greenwood ;
  AGAINST : Judges Koroma, Al-Khasawneh, Sepúlveda-Amor, Skotnikov ;
    Judge ad hoc Guillaume ;
  (b) Unanimously,
   Finds that Nicaragua is not acting in accordance with its obligations
under the 1858 Treaty when it requires persons travelling on the San
Juan River on board Costa Rican vessels exercising Costa Rica’s right of
 ree navigation to purchase Nicaraguan tourist cards ;

62

(c) Unanimously,
  Finds that Nicaragua is not acting in accordance with its obligations
under the 1858 Treaty when it requires the operators of vessels exercising
Costa Rica’s right of free navigation to pay charges for departure clear-
ance certificates ;
  (5) Unanimously,
  Rejects all other submissions presented by Costa Rica and Nicaragua.

   Done in English and in French, the English text being authoritative, at
 he Peace Palace, The Hague, this thirteenth day of July, two thousand
and nine, in three copies, one of which will be placed in the archives of
 he Court and the others transmitted to the Government of the Republic
of Costa Rica and the Government of the Republic of Nicaragua, respec-
 ively.

(Signed) President.                       (Signed) Hisashi OWADA,
                                                      President.
                                        (Signed) Philippe COUVREUR,
                                                      Registrar.

  Judges SEPÚLVEDA-AMOR and SKOTNIKOV append separate opinions to
he Judgment of the Court ; Judge ad hoc GUILLAUME appends a declara-
ion to the Judgment of the Court.

                                                     (Initialled) H.O.
                                                     (Initialled) Ph.C.

63