Second, the Court was quite ‘activist’ in basically creating bright line rules out of whole cloth from treaty provisions that were silent on the concrete matter at hand, but which the Court consider! to have exhaustively regulat! the relations between the parties. For instance, the Court held that Nicaragua may not impose any visa requirements on passengers on Costa Rican ships on the river, though it could have held instead that Nicaragua may not unjustifiably deny visas to such passengers, but that it could do so in some exceptional circumstances. This willingness to set bright line rules probably emanat! from the Court’s desire to preclude further disputes between the parties and definitively settle the matter.
Third, there is the Court’s willingness the establish
with very little evidence, the existence of a bilateral australia phone number library customary rule binding the parties. Namely, it found that the riparian communities in Costa Rica, through the Costa Rican state, had a customary right to subsistence fishing from the river. The Court deriv! such a customary right solely from the absence of protest by Nicaragua to fishing by Costa Ricans, without in any way searching for opinio juris by Nicaragua and Costa Rica that this absence of protest deriv! not from the lack of practical significance of the very small amount of fishing involv!, but from Nicaragua’s sense of legal obligation, its view that the riparian Costa Ricans had a right to fish as they did.
Inde!, the Court found such a customary right even though
Costa Rica never claim!, until the case came to our first 100% french jeans the Court, that it had such a right in its relations with Nicaragua. The Court justifi! its position by saying that the paucity of evidence of custom is explain! by the remoteness of the area and its small population (para. 141). Now, we all know that in some cases the Court does not apply the criteria for formation of custom in a very rigorous way (e.g. regarding the use of force in the 1986 Nicaragua case), while in atb directory others it is conversely extremely hostile to the existence of custom (e.g. in the Asylum or the North Sea Continental Shelf cases). But I don’t think that I’ve ever seen the Court establish a customary rule, even a bilateral one, in quite so off-hand a way as it did here. In that regard, I find the separate opinion of Judge Sepulv!a to be more persuasive.