ACCUSATION TO PUBLICIZE NATIONALLY AND INTERNATIONALLY
HISTORICAL, JUDICIAL, AND GEOGRAPHIC
Costa Rica does not have the right to construct dikes that close channels to the San Juan River and obstruct the passage of their waters toward Harbor Head.
POSSIBLE IMPACTS ON THE ESTUARINE ECOSYSTEM, DERIVED FROM THE CONSTRUCTIONS BY THE GOVERNMENT OF COSTA RICA IN THE BAY OF SAN JUAN DE NICARAGUA
ENVIRONMENTAL DAMAGE IN THE BIOSPHERE RESERVES, RAMSAR SITES AND PROTECTED AREAS OF NICARAGUA
Team of Experts:
Lic. Msc. Kamilo de Jesús Lara B.
Dr. Manuel Madriz Fornos
Msc. Norving Torres Cardoza
Msc. Mauricio Lacayo Escobar
COSTA RICA DOES NOT HAVE THE RIGHT TO CONSTRUCT DIKES THAT CLOSE THE CHANNELS OF THE SAN JUAN RIVER AND OBSTRUCT THE FLOW OF THEIR WATERS TOWARD HARBOUR HEAD.
Manuel Madriz Fornos, Presidente Asociación Centroamericana de Derecho Internacional e Integración (ACADI), Member Academia de Geografía e Historia.
To understand the set of problems of the zone, it is necessary to refer to its fundamental elements which are: The San Juan del Norte bay11, within which is found the Island of San Juan and the muddy-sandy delta; Castilla Point; and the mouth of the San Juan de Nicaragua River.
The plan of the San Juan del Norte bay does not trace any dividing line between Nicaragua and Costa Rica; its only function, as is shown in the plan, is to mark the starting point of the dividing line between Nicaragua and Costa Rica which is located in the extreme northwest of Castilla Point. Additionally, the plan shows the entirety of the San Juan del Norte bay, which extends from the extremity of Castilla Point where the Initial Point is found, to the mouth of the Indian River.
The Jerez Cañas treaty discusses two bays, the Salinas bay and the San Juan del Norte bay. The Salinas bay is an oceanic bay on the Pacific Ocean, but the San Juan del Norte bay is a fluvial bay formed by the San Juan River in its exit to the Caribbean Sea. The San Juan River, in its lower (final) part, advances over a sandy, flat area, in which lies a delta, this delta of waters is what forms the San Juan del Norte Bay.
This particularity is described by Alexander in the following way: “in the lower part of its course, the San Juan River runs through a flat, sandy delta”, where it is evidently possible “not only gradual growths and recessions in its margins, but also complete changes in its channels”2. These channels of the San Juan River are those which form, in their discharge, the San Juan del Norte Bay, at the interior of the San Juan River. Harbor Head forms part of the San Juan del Norte Bay.
Even though the channels are subject to changes, according to the force of flow of the San Juan River (greater flow in the rainy season than in the dry season), they always form part of the San Juan del Norte Bay, what happens is during the dry season (which lasts about three months in the area), sandy banks appear and the internal navigation is more difficult, but it is a bay recognized as such by international law, particularly by the Jerez Cañas Treaty in Articles 4 and 9.
Costa Rican map included in the book that they made on the case of the San Juan River, that shows the area of Harbor Head, northeast of the bay, as a swampy area, a flat and sandy area.
When the then General Secretary of the OAS José Miguel Insulza came to Nicaragua and Costa Rica in December 2010, and went to the zone of conflict y discarded all importance, signaling that this issue was about a “swamp”. A swamp is an area intermediate between land and water, and area “flat and sandy” as described by Alexander, that with a new environmental terminology also has become known as wetland. But what is clear is that we are not discussing “dry land”, we are discussing from the physical and geological point of a “swamp” or an area “flat and sandy”, where there is vegetation which corresponds to the area.
The changes in form in the San Juan del Norte Bay can be seen in the different maps that have been published on the topic, particularly in the book by Dr. Francisco Aguirre Sacasa “Un Atlas Histórico de Nicaragua” and the book by Dr. Alejandro Bolaños Geyer, “Sepultado en el Olvido”. These changes in the channels and the bay can be seen clearly reflected in the graphics produced by G. Sandner.
II.- La Isla de San Juan
The San Juan del Norte bay has as a typical characteristic the presence of an island at the mouth, named San Juan Island, which is located in the north sector of the bay, and the wetlands as Costa Rica calls them are found in the flat and sandy wetland, which is located in the southeast section of the bay, in the lower part of the San Juan River. San Juan Island and the wetlands are different points in the bay.
Alexander describes the location of San Juan Island in the San Juan del Norte Bay in the following way:
“The great typical characteristic of the local geography of the bay, from the first news that we have about it, has been the presence of an island in its exit, called in some maps San Juan Island. It was the island of such importance that it was mentioned in 1820… and is an island today, and as such appears in the map that accompanies this judicial decision”.3
Alexander describes the formation of sandbars in the San Juan del Norte Bay in the following way:
“The peculiarity of this bay, which should be noted, is that the river in the dry season carries very little water. When this happens,…. banks of sand are formed, dry during the low tides, but more or less submerged during the all the high tides, frequently reaching the adjacent headlands of dry land such that a man can cross by foot without getting wet”.4
Alexander respects the integrity of San Juan Island, although the sand banks obscure the island, placing the initial point in the extremity of Castilla Point, that is, in the extreme Northwest of dry land, before the island. In the Alexander map, what continues beyond the inicial point is not a peninsula, it is the San Juan Island temporarily united to Castilla Point by sandbanks that are formed there.
The initial point of the dividing line between Nicaragua and Costa Rica, is as designates Article 2 of the Jerez-Cañas treaty in “the extremity of Castilla Point” and more precisely as is stated by Alexander in “the extreme of dry land (Headland) of the right side of the bay”5 and stated in a different way “The natural terminus of this line is the extreme of dry land (Headland) of the right side of the mouth of the bay”6 and more exactly “the northwest extreme”7 of Castilla Point.
San Juan Island
Costa Rica argued before Alexander that San Juan Island corresponded to Costa Rica, because the day of the signing of the treaty 15 April 1858 “existed a connection between the island and the extreme East of the Eastern Headland, and that this converted the island into mainland, and carried the initial point of the dividing line to the Western extreme of the island”8.
Alexander responded to the arguments of Costa Rica in the following way: “The exact state of the sandbar that day cannot be proved definitively, which would seem necessary before making any important conclusions. Nevertheless, as the date was near the end of the dry season, it is likely that there would have been such a connection by sandbar between the Eastern Coast or the Costa Rican coast, as was described. But even if that were true, it would not be a reason to suppose that such a temporary connection could cause a permanent change in the geographic character or political control of the island”9.
In the western extreme of the San Juan Island, is the sector named Arenas Point, considered by Alexander to be the most important point of the bay.
Alexander states referring to Arenas Point:
“… Arenas Point has been by far the most important and conspicuous point of the bay. In it were places the docks, workshops, offices, etc. of the great Transit company of Vanderbilt that maintained a direct connection between New York and San Francisco, during the Gold Rush of the first years of the decade 1850. Here the ocean and river steamers met and exchanged passengers and cargo. This was the point that Walker and the filibusterers tried to take over…”10
Map composed by the English Consul James Green, in it can be observed the placement of the offices of the Transit Company of Commodore Cornelius Vanderbilt in the extreme west of San Juan Island, sector known as Arenas Point.
Photo of Costa Rica in which shows the channels which they claim Nicaragua made, nevertheless they are located in the sector of San Juan Island, not in the wetlands.
Sandy area of the bay and dry land to the east of the bay.
III.- CASTILLA POINT
Castilla Point according to the description established in Article 5 of the Jerez Cañas Treaty, is not a point, but rather is an area with with limits to the North San Juan del Norte Bay, specifically in the sector of the bay named Harbor Head Lagoon and the first channel or port channel, to the South the route of the Colorado, to the East the Caribbean Sea and to the West the San Juan River and part of the route of the Colorado.
Article 5 of the Jerez Cañas Treaty:
“Article no. 5. During which Nicaragua does not recover complete possession of all its rights in the port of San Juan del Norte, Castilla Point will be of common and equal use and possession for Nicaragua and Costa Rica, marking, during the time that this community lasts, as its limit, the entirety of the route of the Colorado River. And furthermore, is stipulated: that while the indicated port of San Juan del Norte exists as a free port, Costa Rica cannot charge rights of port in Castilla Point.”
In Article 2 of the Jerez Cañas Treaty the dividing line between the countries is already established.
According to the dividing line between Nicaragua and Costa Rica, established in Article 2 of the Jerez Cañas Treaty, the entirety of Castilla Point corresponds to Costa Rica excepting the extreme Northwest of Castilla Point, where the starting point for the dividing line between both countries is located.
Castilla Point: Dry land to the east of the bay
The Arbiter Alexander describes Castilla Point in the following terms “the supreme consideration in the matter is that by the use of the name Castilla Point, for the starting location…, the authors of the Treaty had in mind to designate the dry land of the East of the bay”11, up to this point reaches the territory of Costa Rica, up to Castilla Point which is no more than “the dry land of the East of the bay”, being a “supreme consideration” of “the authors of the Treaty” that marks the separation between Castilla Point pertaining to Costa Rica and the San Juan del Norte Bay pertaining to Nicaragua.
The San Juan del Norte Bay is located to the West of Castilla Point, in an area flat and sandy subject to constant changes in the piles of sand, according to the forces of the flow of water in the river and the tides of the Caribbean Sea, nevertheless these changes do not benefit Costa Rica because the territorio of Costa Rica reaches Castilla Point, that is up to “the dry land of the East of the bay”, Costa Rica does not extend to the area “flat and sandy in which are found the wetlands, which are located in the interior of the San Juan del Norte Bay.
Map from the Geospatial Intelligence Agency of the United States, of the southwestern parte of the Caribbean, prepared in 1991, in which is clearly seen the separation between Castilla Point (dry land) and the area of San Juan del Norte Bay (which is sandy or swamp) and is noted in the map.
Costa Rica reaches up to Castilla Point which is defined by Alexander as “dry land to the East of the Bay”.
Nicaragua starts in the San Juan del Norte Bay to the West of Castilla Point and more precisely, where the flat and sandy area begins.
In such a way that, even in a bad rainy season the first channel forms further into the interior of the San Juan del Norte Bay, the territory of Costa Rica does not extend up to the new location of the channel, because its territory extends up to Castilla Point which is dry land to the East of the bay. That area located between the new channel and Castilla Point is area of the bay itself that in other rainy season would be reopened by another channel, always remaining within the area of the bay, the channel does not form in dry land, but rather in the flat and sandy area which is the San Juan del Norte Bay.
With this proposal, Costa Rica insists on the aspiration laid out by Alexander and penetrates the San Juan del Norte Bay including in its claim, San Juan Island as if it should be considered a peninsula, beyond the northwest extremity of Castilla Point, which is the starting point of the boundary between the countries in the Caribbean Sea, which was meridionally rejected by Alexander, as is seen in the plot of the San Juan del Norte Bay.
The First Channel.
Alexander states that the dividing line “Arriving to the waters of the Harbor Head Lagoon the dividing line will turn to the left, that is to the Southeast, and continues along the water’s edge about Harbor Head up to the river itself by the first channel found …”12
The Point is not only located at the first channel that as Alexander states its placement is subject to changes according to the forest of the waters of the river and the sea, the Point also is up to where Costa Rica reaches. As mentioned by the Arbiter Alexander, Costa Rica reaches Castilla Point, that is up to Dry Land to the East of the bay. Costa Rica does not have any wetlands in the interior of the San Juan del Norte Bay.
IV.- MOUTH OF THE SAN JUAN RIVER
Costa Rica states that the cleaning efforts in the channels that Nicaragua performs in the San Juan River tend to deform the mouth so that exits through the Harbor Head Lagoon o as they call it, Los Portillos Lagoon, and flows out in the extremity of Castilla Point. It also states that they will place dikes on all the channels of the San Juan River that flow toward Harbor Head, because they cross Costa Rican territory, however from the environmental point of view, the waters of Harbor Head are waters of the San Juan River and if the channels that flow in that direction are blocked, Harbor Head will dry and an environmental disaster will be produced in the interior of the San Juan del Norte Bay.
Additionally, and from the point of view of international law, according to Article 2 of the Jerez Cañas Treaty, “The dividing line between the Republics, from the sea of the North, will begin in the extremity of Castilla Point in the mouth of the San Juan River…”.
Current situation of the San Juan del Norte Bay
1.- Costa Rica cannot pretend to extend further than the northwest extremity of Castilla Point, established as the starting point of the dividing line between Nicaragua and Costa Rica in the Caribbean Sea.
2.- Costa Rica cannot pretend to go further than dry land at the East of the bay, which is to where Castilla Point reaches. Costa Rica does not have flat and sandy area on the interior of the San Juan del Norte Bay much less does it have wetlands.
3.- Costa Rica does not have Northwest Caribe, as is called the wetland located on the interior of the San Juan del Norte Bay. Costa Rica can have Caribe wetland and Northwest wetland, but not the Northwest Caribe Wetland.
4.- Costa Rica cannot impede Nicaragua in the clearing of channels and even construct new channels in San Juan Island, which is the area where Comandante Edén Pastora is working, as can be seen in their satellite photography, given that this island is completely under the dominion of Nicaragua as stated Alexander.
5.- Costa Rica cannot impede Nicaragua in the clearing or construction of new channels in the interior of San Juan del Norte Bay, in the flat and sandy área, to improve the mouth of the San Juan River, passing by Harbor Head given that there is precisely the mouth of the river, as is stated clearly in Article 2 of the Jerez Cañas Treaty which states “… in the extremity of Castilla Point in the mouth of the San Juan River of Nicaragua”.
6. Costa Rica cannot attempt to close the channels which form the San Juan River in its exit, much less construct dikes in the channels to impede the flow of said waters, in the name of the environment, given that this is in reality a destruction of the environment because if the channels of the San Juan River toward Harbor Head are closed, Harbor Head would go dry, as the waters of Harbor Head are the waters of the San Juan River.
The action of Costa Rica, as is, goes beyond that stated by the International Court of Justice, the Court mentions works of restoration of the environment, not of the construction of dikes that are greater works which at the same time implicate the destruction of the hydrobiologic system of the San Juan del Norte Bay.
Possible impacts on the estuarine ecosystem, derived from the works of the Government of Costa Rica in San Juan de Nicaragua Bay
It is relevant to highlight that complex interconnections exist between the quality, quantity and the moment of influx of freshwater and the health of the estuaries. A small change in the influx, such as what the Government of Costa Rica pretends to undertake on some channels of the San Juan de Nicaragua Bay, could affect the fundamental function of the estuarine ecosystem, what which at the same time, would have ramifications in the biota (animals and plants) and in the human populations which depend on the estuary, among the diverse impacts on the marine-coastal ecosystem can be highlight the following:
- Alteration to the saltwater front.
- Alteration of the thermal regime of the ecosystem and its collateral effects over the estuarine biota, which will restrict the conditions for aquatic life.
- Impacts on the hydrodynamics of the wetlands and their effects on the ecological roles that they play.
- Changes in the transport of sediments and the models of deposition inside the estuary and the coast.
- Possible affectations to the water quality as a result of the generation of anoxic or hypoxic water (lacking or low in dissolved oxygen), in some channels.
- Alteration of the residence time of freshwater in the estuary, changes in the time of discharge and the duration of the contaminants in the aquatic system.
- Reduction in the introduction of natural nutrients; reduced productivity of plants and animals.
- Reduction in the spatial extension of important ecological habitats.
- Changes in the patterns of distribution of species that together make the ecosystem.
- The works to divert water will induce changes in the physical parameters-chemical and biological, as result of the variations in the salinity, the nutrient loads, variations in the organic material and the increase in evapotranspiration.
- Impacts in the aquatic biodiversity concentrated in several elements among which are highlighted impacts in migration and on phyto- and zooplankton.
- Elimination of beaches and stationary waters which provide habitat to native fishes and the reduction or elimination of riverine vegetation that provides nutrients and habitat to aquatic species and aquatic birds, among others, all this signaling the deterioration of the coastal delta.
The possible impacts al estuarine ecosystem require important actions in the short and medium term by the Government of Nicaragua and the Universities, with the purpose of monitoring the effects on the biota and the water quality; in the monitoring the following should be considered:
1) Determination of the salinity gradients in the water and in the interstices of soils.
2) Distribution and Abundance of benthic organisms.
3) Distribution and Abundance of fish and crustaceans.
4) Establish permanent sampling plots for the determination of the development of the mangrove.
5) Determine the concentrations of nutrients.
Environmental damage in the Biosphere Reserves, RAMSAR sites, and Protected Areas of Nicaragua:
We affirm that this closure of channels in the San Juan de Nicaragua Bay affects the San Juan River Biosphere Reserve in Nicaragua, in which during the 1980’s several recognized, approved and financed projects and programs such as the Organization of American States (OEA), the United Nations Development Program (UNDP), the European Cooperation from the Nordic Countries and Spain, and the World Conservation Union (IUCN), all this investment in the environment realized with a systemic focus, for the Common Good of our Mother Earth and the protection of the Environment.
Many of the terrestrial and aquatic species of international importance are found in the wetland; categorized as Protected Area and RAMSAR Site, among these we mention some such as the Bull Shark (Carcharhinus leucas), the Atlantic Tarpon (Tarpon atlanticus), the Snook (Centropomus parallelus), these species use the channels of the river and wetland, for migration from the Caribbean Sea to Lake Nicaragua and the Tropical Gar (Lepisosteus tropicus), and large mammals such as White-lipped Peccary (Tayassu pecari), the Baird’s Tapir (Tapirus bairdii), Manatee (Trichechus manatus), Jaguar (Panthera onca), and the Giant Anteater (Myrmecophaga tridactyla). Among the birds, Harpy Eagle (Harpia harpyja), and the Three-wattled Bellbird (Procnias tricarunculata), and the two species of macaws considered in danger of extinction, the Scarlet Macaw (Ara macao) and Great Green Macaw (Ara ambiguus), also it is important to mention the presence of marine turtles: the Hawksbill Turtle (Eretmochelys imbricata), Leatherback Turtle (Dermochelys coriacea), Green Turtle (Chelonya midas), and the Loggerhead Sea Turtle (Caretta caretta), all of which are in danger of extinction (Plan de Manejo RVS Río San Juan, MARENA, 2005). These species continue in danger of extinction and the construction of this dike put them in greater ecological vulnerability.
These species are part of a RAMSAR site, which inhabit the San Juan de Nicaragua Bay.
Environmental Damage in the San Juan de Nicaragua Bay:
The government of Costa Rica has affected more than two square kilometers of Rainforest in the San Juan de Nicaragua Bay, affecting the hydrologic flow patterns in this bay, and violating the most elemental norms of watershed and water body protection, causing enormous damage to soils, to forest, to terrestrial and aquatic wildlife, in addition provoking damage to the general ecosystem. This construction places at risk the ecological integrity of the entire San Juan de Nicaragua Bay, given that it provokes the drying up of the bay.
It is observed that this is a work with bad intentions, given that no Environmental Impact Statement has been presented to the Government of Nicaragua, that would provide evidence to the consequences of obstruction of the wetland. In this case the EIS is required, given the magnitude of the impact in the wetlands and in particular in the RAMSAR site, the San Juan River Wildlife Refuge. This study is an obligatory requirement for this type of activity, porque it is required to model the impact over short, medium and long terms that the activity would have in these aquatic systems that are interconnected and that eventually, also, are connected to the Caribbean Sea, in Nicaragua.
In the San Juan River, precipitation is highest of the entire country, from there the wetland system is connected and permits the water to flow in natural form and to be absorbed by the system of the San Juan de Nicaragua Bay, in such a way that this hydrologic connection helps to avoid floods in the town San Juan de Nicaragua. For this reason, if the construction in question is not eliminated, it will place at risk of floods the community San Juan de Nicaragua, which is comprised of mestizos, afrodescendants and the indigenous Rama people.
In the San Juan River Wildlife Refuge, is found the manatee (Trichechus manatus); inoffensive mammal and little understood which can reach three meters length and more than a half-ton in weight. The females breastfeed their offspring similarly to humans. The species found in the Refuge is only found in the Caribbean and is very scarce, for which it brings the attention of the international organizations interested in its conservation. In this Refuge is found probably one of the largest populations of the species in Nicaragua, principally in quiet waters, where there is abundant herbaceous vegetation on which it feeds. It is quite possible that this species utilizes the entire San Juan de Nicaragua Bay, and that as a result, with the dike, its range will be limited, provoking a kind of barrier affecting the manatee populations in the zone.
The Southern Caribbean artisanal fishery in Nicaragua relies in great measure on the marine species which require for their biological cycle the wetlands of the San Juan de Nicaragua Bay and the San Juan River, all of them having a commercial value which helps to increment during the respective seasons the incomes of mestizo, afro-descendant and indigenous Rama families; nonetheless, these species each year find greater difficulties to complete their biological cycles because of the obstruction to the water flows such as what is doing the Government of Costa Rica in the San Juan de Nicaragua Bay. Evidently, this environmental damage will provoke, also, that the food chain for the coastal marine and marine species be affected because of the lack of areas where these species can complete their life cycles in wetlands such as the San Juan de Nicaragua Bay. Therefore, the protection of these places converts into potential for the fish resources, for which it should be considered with profound ecological criteria, especially the protection of swampy habitats and the natural lagoons.
In the Urban Development Plan for San Juan de Nicaragua, it is affirmed that tourism is one of the sectors of greatest growth and potential, given the attractions of historic sites and natural landscape, this activity generates a growth in the hotel demand and offer for better service. However, this potential will be affected because part of the San Juan de Nicaragua Bay would become dried.
The construction of this dike has impact in the changes in land use in an ecologically fragile zone and creating greater likelihood that changes in the land uses will become irreversible, that is we would not be able to recuperate the wetland or part of the wetland of the San Juan de Nicaragua Bay, in natural form. Then it would become necessary that the government of Nicaragua would have to assume the responsibility of conducting another dredging operation, where the dike is detaining the natural water flow toward the rest of the San Juan de Nicaragua Bay, in the future. To revert the environmental damage and restore the ecosystems, will require high costs and many years of work.
The government of Costa Rica must eliminate the structures or dikes that prevent the movement of water and aquatic species, and repair the damage caused by this dike, in order to prevent the drying of the San Juan de Nicaragua Bay. Therefore, we demand that the Government of Nicaragua request through diplomatic channels to the Government of Costa Rica, that they cease immediately the works related to the San Juan de Nicaragua Bay.
We solicit to the international community, to the regional organisms such as CCAD, UNESCO, RAMSAR, OAS, IUCN, PNUMA, and the Environmental Commission of the Central American Parliament, that they make their presence to observe the damage cause by this dike and that they recommend the immediate elimination of this work, realized by the Government of Costa Rica, and that they furthermore repair any environmental damage caused to the present date in the San Juan de Nicaragua Bay.
Finally, we remind the Costa Rican Government that the San Juan River Wildlife Refuge is part of a Biosphere Reserve, in which thousands of species of wild plants and animals live in an ecosystem in equilibrium and that for their irresponsible and irrational actions are placing in danger an important heritage of humanity, which is the San Juan River Biosphere Reserve.
As environmentalist organizations in Nicaragua, we demonstrate our complete support to the government of Nicaragua for all the actions that through diplomatic channels and bilateral dialogue, can be achieved.
1 This denomination is used because it is the name applied in the Jerez Cañas Treaty, Cleveland Decision and Alexander Decision, although currently its name has been changed to San Juan de Nicaragua Bay.
2 Alexander, Decision 2 p. 33 second paragraph lines 2-5
3 Alexander Decision 1, p. 29, 2nd paragraph, lines 1-6
4 Alexander, Decision 1, p. 29 2nd paragraph, lines 6-12
5 Alexander, Decision 1, p. 28 1st paragraph, last 9 lines
6 Alexander, Decision 1, p. 28, 1st paragraph, penultimate line.
7 Alexander, Decision 1, p. 31 1st paragraph lines 5-6.
8 Alexander, Decision 1 p. 29 2nd paragraph, lines 14-16.
9 Alexander, Decision 1, p. 29, third paragraph.
10 Alexander, Decision 1 p. 30, 2nd paragraph lines 2-8.
11 Alexander, Decision 1 p. 29, 4th paragraph, lines 6-8.
12 Alexander, Decision 1, p. 31, lines 12-15