Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica)
OVERVIEW OF THE CASE
On 18 November 2010, the Republic of Costa Rica filed an Application instituting proceedings against the Republic of Nicaragua in respect of an alleged “incursion into, occupation of and use by Nicaragua’s Army of Costa Rican territory as well as [alleged] breaches of Nicaragua’s obligations towards Costa Rica”, namely the principle of territorial integrity and the prohibition of the threat or use of force.
In its Application, Costa Rica contended that Nicaragua had, in two separate incidents, occupied the territory of Costa Rica in connection with the construction of a canal from the San Juan River to Laguna los Portillos (also known as “Harbour Head Lagoon”), and carried out certain related works of dredging on the San Juan River. According to Costa Rica, the dredging and the construction of that canal would seriously affect the flow of water to the Colorado River of Costa Rica, and would cause further damage to Costa Rican territory, including the wetlands and national wildlife protected areas located in the region. This case was entered in the General List of the Court under the title Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) (hereinafter the “Costa Rica v. Nicaragua case”).
On 18 November 2010, Costa Rica also filed a Request for the indication of provisional measures aimed at protecting its “right to sovereignty, to territorial integrity and to non-interference with its rights over the San Juan River, its lands, its environmentally protected areas, as well as the integrity and flow of the Colorado River”. By its Request, Costa Rica sought in particular to obtain the withdrawal of all Nicaraguan troops from the territory in dispute, the immediate cessation of the construction of the canal and the suspension of the dredging of the Colorado River. By an Order indicating provisional measures dated 8 March 2011, the Court asked the Parties to refrain from sending to, or maintaining in, the disputed territory any personnel, whether civilian, police or security. However, it did authorize Costa Rica to dispatch to the disputed territory, subject to certain conditions, civilian personnel charged with the protection of the environment. Finally, it asked the Parties to refrain from aggravating or extending the dispute.
On 22 December 2011, Nicaragua instituted proceedings against Costa Rica “for violations of Nicaraguan sovereignty and major environmental damages to its territory”. In its Application, Nicaragua contended that Costa Rica was carrying out major construction works along most of the border area between the two countries with grave environmental consequences. This case was entered in the General List of the Court under the title Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) (hereinafter the “Nicaragua v. Costa Rica case”).
On 6 August 2012, Nicaragua filed its Counter-Memorial in the Costa Rica v. Nicaragua case, in which it submitted four counter-claims.
In a letter dated 19 December 2012, submitted on the filing of Nicaragua’s Memorial in the Nicaragua v. Costa Rica case, Nicaragua requested the Court to join the proceedings in the Costa Rica v. Nicaragua and the Nicaragua v. Costa Rica cases.
By two Orders dated 17 April 2013, the Court, taking account of the circumstances and in conformity with the principle of the sound administration of justice and with the need for judicial economy, decided to join the proceedings in the two cases.
By an Order dated 18 April 2013, the Court ruled that the subject‑matter of the first counter‑claim presented by Nicaragua in the Costa Rica v. Nicaragua case (a claim relating to the damage that might result from the construction of the aforementioned road by Costa Rica) was identical in substance to its principal claim in the Nicaragua v. Costa Rica case and that, as a result of the joinder of the proceedings, there was no need for it to adjudicate on the admissibility of that counter‑claim as such. The Court found the second and third counter‑claims inadmissible, since there was no direct connection between those claims, which related to the question of sovereignty over the Bay of San Juan del Norte and Nicaragua’s right to navigation on the Colorado River, respectively, and the principal claims of Costa Rica. Finally, the Court found that there was no need for it to entertain the fourth counter-claim, relating to the implementation of the provisional measures already indicated by the Court, since the Parties were free to take up that question in the further course of the proceedings.
On 23 May 2013, Costa Rica presented the Court with a request for the urgent modification of its Order of 8 March 2011. In its Order of 16 July 2013, the Court considered that the change in the situation that had occurred did not justify a modification of its earlier Order. Furthermore, it reaffirmed the measures indicated in its Order of 8 March 2011, in particular the requirement that the Parties “shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve”.
On 24 September 2013, Costa Rica filed a Request for the indication of new provisional measures in the Costa Rica v. Nicaragua case. This Request followed the construction by Nicaragua of two new channels (caños) in the northern part of the disputed territory, the larger of the two being that to the east (“the eastern caño”). In its Order of 22 November 2013, the Court decided not only to reaffirm the provisional measures indicated in its Order of 8 March 2011 (see above), but also to indicate new measures. The Court thus directed that Nicaragua must refrain from any dredging or other activities in the disputed territory, and, in particular, refrain from work of any kind on the two new caños, and must also fill the trench on the beach north of the eastern caño. The Court further directed that, except as needed for implementing this obligation, Nicaragua must cause the removal from the disputed territory of all personnel, whether civilian, police or security, and prevent any such personnel from entering the disputed territory; it must likewise cause the removal from and prevent the entrance into the disputed territory of any private persons under its jurisdiction or control. The Court further stated that, subject to certain conditions, Costa Rica might take appropriate measures related to the two new caños.
For its part, on 11 October 2013, Nicaragua filed a Request for the indication of provisional measures in the Nicaragua v. Costa Rica case, stating that it was seeking to protect certain rights which were being prejudiced by the road construction works carried out by Costa Rica (see above), in particular the transboundary movement of sediments and other resultant debris. After holding hearings on that Request at the beginning of November 2013, the Court decided, in an Order dated 13 December 2013, that the circumstances, as they now presented themselves to the Court, were not such as to require the exercise of its power to indicate provisional measures.
Public hearings in the joined cases were held in April 2015, and the Court delivered its Judgment on the merits on 16 December 2015. Regarding the first case, the Court found, inter alia, that Costa Rica had sovereignty over the disputed territory lying in the northern part of Isla Portillos. It therefore considered that the activities carried out by Nicaragua in the disputed territory since 2010, including the excavation of three caños and the establishment of a military presence in parts of that territory, were in breach of Costa Rica’s territorial sovereignty and Nicaragua’s obligations under the Court’s Order of 8 March 2011 indicating provisional measures. In its Judgment, the Court ruled that Nicaragua had an obligation to compensate Costa Rica for the material damages caused by its unlawful activities and that, failing an agreement on the matter between the Parties within 12 months, the Court would settle this question in a subsequent procedure.
In the same Judgment, regarding the second case, the Court found that the construction of the road by Costa Rica carried a risk of significant transboundary harm and that Costa Rica therefore had an obligation under general international law to carry out an environmental impact assessment. However, since Costa Rica had not complied with that obligation, the Court found that there was no need for it to determine whether Costa Rica had a duty to notify and consult with Nicaragua. Turning to the alleged breaches of substantive obligations, beginning with the obligation to exercise due diligence to avoid causing significant transboundary harm, the Court concluded that Nicaragua had not proved that the construction of the road caused significant transboundary harm, and it therefore dismissed Nicaragua’s claims on this point. Turning to the reparation requested by Nicaragua, the Court concluded that a declaration of wrongful conduct in respect of Costa Rica’s violation of the obligation to conduct an environmental impact assessment was the appropriate measure of satisfaction for Nicaragua.
By a letter dated 16 January 2017, Costa Rica, referring to the decision rendered in the first case (Costa Rica v. Nicaragua), requested the Court to settle the question of the compensation due to Costa Rica for the material damages caused by Nicaragua’s unlawful activities in the border area. Following the conclusion of two rounds of written pleadings, the Court began its deliberation and gave its ruling in a Judgment rendered on 2 February 2018.
In that Judgment, the Court took the view that damage to the environment, in particular the consequent impairment or loss of the ability of the environment to provide goods and services, and the cost of the restoration of the damaged environment, was compensable under international law. Before assigning a monetary value to the damage to the environmental goods and services caused by Nicaragua’s wrongful activities, the Court determined the existence and extent of that damage, and whether there existed a direct and certain causal link between the damage and Nicaragua’s activities. Following its valuation of the damage caused to environmental goods and services, the Court awarded Costa Rica the sum of US$120,000 for the impairment or loss of the environmental goods and services of the affected area, and the sum of US$2,708.39 for restoration measures in respect of the wetland. In addition to the compensation for environmental damage, the Court awarded Costa Rica total compensation in the amount of US$236,032.16 for costs and expenses incurred as a direct consequence of Nicaragua’s unlawful activities in the northern part of Isla Portillos, as well as US$20,150.04 in pre‑judgment interest on those costs and expenses. The Court concluded that the total amount of compensation to be awarded to Costa Rica was US$378,890.59, to be paid by Nicaragua by 2 April 2018. In a letter dated 22 March 2018, Nicaragua informed the Registry of the Court that, on 8 March 2018, it had transferred to Costa Rica the total amount of compensation awarded to it.
This overview is provided for information only and in no way involves the responsibility of the Court.