FOREIGN MINISTER TOVAR BRIEFS DIPLOMATIC CORPS ON

C O N F I D E N T I A L SECTION 01 OF 02 SAN JOSE 002265 SIPDIS E.O. 12958: DECL: 09/29/2015 TAGS: PBTS PREL PINR ETRD CS NU SUBJECT: FOREIGN MINISTER TOVAR BRIEFS DIPLOMATIC CORPS ON COSTA RICA-NICARAGUA BORDER DISPUTE REF: A. SAN JOSE 2249 ¶B. SAN JOSE 2131 ¶C. SAN JOSE 1746 ¶D. MANAGUA 2639 Classified By: Charge Russell Frisbie for reasons 1.4 (b) and (d) ¶1. (C) Summary: Foreign Minsiter Tovar told diplomats in San Jose that Costa Rica had no alternative to filing a case in the ICJ to vindicate its rights to free navigation on the San Juan River. He said that going to the court was not a hostile or unfriendly act and that retaliation on the part of Nicaragua was unjustified. He said that a 35 percent tariff being considered by Nicaragua would, if adopted, cripple the economies of both countries, set back economic integration in the region, violate CAFTA-DR, and undermine prospects for a free trade agreement with the European Union. End summary. ¶2. (SBU) On September 29, Foreign Minister Tovar convoked the entire diplomatic corps in San Jose to explain why the GOCR decided to bring a case before the International Court of Justice (ICJ) to vindicate Costa Rica's claim to rights of free navigation on the San Juan River. With 30 to 35 chiefs of mission in attendance, Tovar said that negotiations with Nicaragua had failed and that Nicaragua had rejected Costa Rica's proposal for arbitration. He added that Costa Rica could not extend the existing "truce" (during which Costa Rica cannot exercise its rights of free navigation) because, according to legal experts in this matter, passive assent to the status quo could constitute a forfeiture of Costa Rica's rights. Tovar stressed that in any event Costa Rica's availing itself of the court cannot be construed as an unfriendly act, but rather is the way civilized nations resolve disputes that they are unable to resolve by other means. ¶3. (SBU) Tovar said that the GOCR is extremely concerned that President Bolanos has ordered the Nicaraguan Army to send reinforcements to the border and that the Nicaraguan Assembly is considering a 35 percent tariff on Costa Rican goods entering Nicaraguan territory. With respect to the latter, he noted that Nicaraguans refer to such a tariff as a "patriotic tax" to pay for legal fees. Costa Rica's exports to Nicaragua, he pointed out, are approximately USD 200 million a year, and at least another USD 500 million in exports pass through Nicaragua to points north. Tovar believes the ICJ case will take four years to decide. The economic cost of a Nicaraguan tariff, he said, would be enormous, bankrupting companies and exacerbating poverty in both countries. Such an action on the part of Nicaragua, he claimed, would also violate the U.S.-Central American-Dominican Republic Free Trade Agreement (CAFTA-DR), signed by both countries. Further, Central American economic integration would suffer a serious setback, probably scuttling plans for a free trade agreement with the European Union, the region's biggest market after the United States. Tovar said that he was going to the Legislative Assembly that very afternoon to urge that Costa Rican legislators take no reciprocal action against Nicaragua. ¶4. (SBU) Tovar told the assembled diplomats that he did not expect or want them to take any position on the merits of the border dispute. Rather, he asked for their understanding why Costa Rica took the route of the ICJ and why Costa Rica believed that retaliation by Nicaragua was unjustified. He hoped that the countries represented in the room would use their influence to persuade Nicaragua not to effect punitive tariffs. ¶5. (U) Tovar distributed the following communique, which the MFA released on September 28: Begin Text: Costa Rica announces the presentation of the case regarding its rights of navigation on the San Juan River to the International Court of Justice The Government of Costa Rica announced today that shortly it would present the case of its navigation rights on the San Juan River, granted by the respective legal instruments, to the International Court of Justice, which sits at The Hague. The announcement of the decision taken by President Dr. Abel Pacheco de la Espriella and the Minister of Foreign Affairs, Roberto Tovar Faja, during the press conference which took place today at the Presidential Office at 16:00 on Wednesday, September 28, 2005. The Minister of Foreign Affairs explained today that he has instructed the Costa Rican Ambassador, Edgar Ugalde, to present the case to the headquarters of the International Court of Justice in The Hague. The Costa Rican measure will be communicated in a few hours to the Government of Nicaragua through a note that the Minister of Foreign Affairs of Costa Rica, Roberto Tovar Faja, will send to the Minister of Foreign Affairs of Nicaragua, Norman Caldera. The President of Costa Rica, Dr. Abel Pacheco de la Espriella, said that despite these approaches and opportunities, derived from the Agreement signed on September 26th, 2002 by the Ministers of Foreign Affairs of Costa Rica and Nicaragua, "remaining as the only source of disagreement between our two countries is the matter of the rights of Costa Rica on the San Juan River." He noted that the mechanisms of mediation and arbitration proposed by Costa Rica were not accepted by Nicaragua. "As a consequence, according to the peaceful coexistence principle between nations and the faithful adherence to the Costa Rican tradition of respect for International Law, we have decided to present the case to the International Court of Justice." "We hope for authentic national unity at this historical moment," said President Dr. Abel Pacheco, and he added that "Costa Rica and its rights are a priority over any private interest." The Costa Rican Foreign Minister, for his part, affirmed that Costa Rica is calling upon "the highest international legal instance in order to resolve, for good, the only cause of disagreement with Nicaragua." He reaffirmed that his country "is not asking for more rights or less rights than accorded to Costa Rica by the pertinent juridical instruments." He said that "to call upon the International Court of Justice could never interpreted as a break in the friendship between the two countries. Both Costa Rica and Nicaragua have accepted the Court as a means to ensure the peaceful coexistence and mutual respect between nations." "We sincerely call on the International Court of Justice to make a decision that contributes to Costa Rica and Nicaragua never again having a reason for discord," added the Minister of Foreign Affairs. "I hope that through this means we will leave future generations with a relationship of fraternity and friendship between our two countries, without disputes. It is our historic responsibility," the Minister of Foreign Affairs, Roberto Tovar Faja, declared. End Text. ¶6. (SBU) After the meeting with diplomats ended, MFA adviser Arnoldo Brenes told acting DCM that a 35 percent tariff would violate CAFTA-DR. He said that the legal principle of "pacta sunt servanda" in the Vienna convention on the Law of Treaties requires that a country that signs a treaty, whether it has ratified or not, not take any action contrary to the letter and spirit of the treaty. ¶7. (C) In a meeting with Charge on September 28, former president Oscar Arias, frontrunner in the February 2006 presidential election, said that the GOCR made an "error" in not extending the three-year truce on the San Juan River dispute. He said that Nicaraguan Ambassador to Costa Rica Francisco Fiallos told him that he had urged the GON to agree to arbitration but that Foreign Minister Caldera refused. Arias said that it was "lamentable" that relations have been damaged because of intransigence on both sides. ¶8. (C) Comment: A settlement at this point appears to be highly unlikely. The problem now is to ensure that the dispute stays in the court and does not escalate and affect trade, immigration, law enforcement, and the need for Costa Rica and Nicaragua to cooperate on a host of issues. Until now we have not heard anyone in the GOCR talk about retaliation if Nicaragua enacts a 35 percent tariff, but that discussion will surely come. FRISBIE