This record is a partial extract of the original cable. The full text of the original cable is not available.

C O N F I D E N T I A L SECTION 01 OF 02 SAN JOSE 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