Corrigé
Corrected
CR 2015/6
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2015
Public sitting
held on Friday17 April 2015, at 10 a.m., at the Peace Palace,
President Abraham presiding,
in the cases concerning Certain Activities carried out by Nicaragua in the Border Area
(Costa Rica v. Nicaragua); Construction of a Road in Costa Rica
along the San Juan River (Nicaragua v. Costa Rica)
____________________
VERBATIM RECORD
____________________
ANNÉE 2015
Audience publique
tenue le vendredi17 avril 2015, à 10 heures, au Palais de la Paix,
sous la présidence de M. Abraham, président,
dans les affaires relatives à Certaines activités menées par le Nicaragua dans la région
frontalière (Costa Rica c. Nicaragua) ; Construction d’une route au Costa Rica
le long du fleuve San Juan (Nicaragua c.Costa Rica)
________________
COMPTE RENDU
________________ - 2 -
Present: President Abraham
Vice-President Yusuf
Judges Owada
Tomka
Bennouna
Cançado Trindade
Greenwood
Xue
Donoghue
Gaja
Sebutinde
Bhandari
Robinson
Gevorgian
Judges ad hoc Guillaume
Dugard
Registrar Couvreur
- 3 -
Présents : M. Abraham, président
M. Yusuf, vice-président
MM. Owada
Tomka
Bennouna
Cançado Trindade
Greenwood
Mmes Xue
Donoghue
M. Gaja
Mme Sebutinde
MM. Bhandari
Robinson
Gevorgian, juges
MM. Guillaume
Dugard, juges ad hoc
M. Couvreur, greffier
- 4 -
The Government of Costa Rica is represented by:
H.E. Mr. Manuel A. González Sanz, Minister for Foreign Affairs and Worship of the Republic of
Costa Rica;
H.E. Mr. Edgar Ugalde Álvarez, Ambassador on Special Mission,
as Agent;
H.E. Mr. Sergio Ugalde, Ambassador of Costa Rica to the Kingdom of the Netherlands, Member of
the Permanent Court of Arbitration,
as Co-Agent, Counsel and Advocate;
Mr. Marcelo Kohen, Professor of International Law at the Graduate Institute of International and
Development Studies, Geneva, member of the Institut de droit international,
Mr. Samuel Wordsworth, Q.C., member of the English Bar, member of the Paris Bar, Essex Court
Chambers,
Mr. Arnoldo Brenes, Senior Adviser to the Ministry of Foreign Affairs and Worship, member of
the Costa Rican Bar,
Ms Kate Parlett, Solicitor admitted in Queensland, Australia, and in England and Wales,
Ms Katherine Del Mar, member of the English Bar, 4 New Square, Lincoln’s Inn,
as Counsel and Advocates;
Mr. Simon Olleson, member of the English Bar, 13 Old Square Chambers,
as Counsel;
Mr. Ricardo Otarola, Adviser to the Ministry of Foreign Affairs and Worship,
Ms Shara Duncan, Adviser to the Ministry of Foreign Affairs and Worship,
Mr. Gustavo Campos, Minister Counsellor and Consul General of Costa Rica to the Kingdom of
the Netherlands,
Mr. Rafael Saenz, Minister Counsellor at the Co sta Rican Embassy in the Kingdom of the
Netherlands,
Ms Ana Patricia Villalobos, Official at the Ministry of Foreign Affairs and Worship,
as Assistant Counsel;
Ms Elisa Rivero, Administrative Assistant at the Ministry of Foreign Affairs and Worship,
as Assistant. - 5 -
Le Gouvernement du Costa Rica est représenté par :
S. Exc. M. Manuel A. González Sanz, ministre des affaires étrangères et des cultes de la
République du Costa Rica ;
S. Exc. M. Edgar Ugalde Álvarez, ambassadeur en mission spéciale,
comme agent ;
S. Exc. M. Sergio Ugalde, ambassadeur du Costa Rica auprès du Royaume des Pays -Bas, membre
de la Cour permanente d’arbitrage,
comme coagent, conseil et avocat ;
M. MarceloKohen, professeur de droit international à l’Institut de hautes études internationales
et du développement de Genève, membre de l’Institut de droit international,
M. Samuel Wordsworth, Q.C., membre des barreaux d’Angleterre et de Paris, Essex Court
Chambers,
M. Arnoldo Brenes, conseiller principal auprès du ministère des affaires étrangères et des cultes,
membre du barreau du Costa Rica,
Mme Kate Parlett, solicitor (Queensland (Australie), Angleterre et pays de Galles),
Mme Katherine Del Mar, membre du barreau d’Angleterre, 4 New Square, Lincoln’s Inn,
comme conseils et avocats ;
M. Simon Olleson, membre du barreau d’Angleterre, 13 Old Square Chambers,
comme conseil ;
M. RicardoOtarola, conseiller auprès du ministère des affaires étrangères et des cultes,
Mme Shara Duncan, conseillère auprès du ministère des affaires étrangères et des cultes,
M. Gustavo Campos, ministre-conseiller et consul général du Costa Rica auprès du Royaume des
Pays-Bas,
M. Rafael Saenz, ministre-conseiller à l’ambassade du Costa Rica au Royaume des Pays-Bas,
Mme Ana Patricia Villalobos, fonctionnaire du ministère des affaires étrangères et des cultes,
comme conseils adjoints ;
Mme Elisa Rivero, assistante administrative au ministère des affaires étrangères et des cultes,
comme assistante. - 6 -
The Government of Nicaragua is represented by:
H.E. Mr. Carlos José Argüello Gómez, Ambassador of the Republic of Nicaragua to the Kingdom
of the Netherlands,
as Agent and Counsel;
Mr. Stephen C. McCaffrey, Professor of International Law at the University of the Pacific,
McGeorge School of Law, Sacramento, former Member and former Chairman of the
International Law Commission,
Mr. Alain Pellet, Professor at the University Paris Ouest, Nanterre- La Défense, former Member
and former Chairman of the International Law Commission, member of the Institu t de droit
international,
Mr. Paul S. Reichler, Attorney -at-Law, Foley Hoag LLP, member of the Bars of the United States
Supreme Court and the District of Columbia,
Mr. Andrew B. Loewenstein, Attorney- at-Law, Foley Hoag LLP, member of the Bar of the
Commonwealth of Massachusetts,
as Counsel and Advocates;
Mr. César Vega Masís, Deputy Minister for Foreign Affairs, Director of Juridical Affairs,
Sovereignty and Territory, Ministry of Foreign Affairs,
Mr. Walner Molina Pérez, Juridical Adviser, Ministry of Foreign Affairs,
Mr. Julio César Saborio, Juridical Adviser, Ministry of Foreign Affairs,
as Counsel;
Mr. Edgardo Sobenes Obregon, Counsellor, Embassy of Nicaragua in the Kingdom of the
Netherlands,
Ms Claudia Loza Obregon, First Secretary, Embassy of N icaragua in the Kingdom of the
Netherlands,
Mr. Benjamin Samson, Researcher, Centre de droit international de Nanterre (CEDIN), University
of Paris Ouest, Nanterre-La Défense,
Ms Cicely O. Parseghian, Attorney -at-Law, Foley Hoag LLP, member of the Bar of t he
Commonwealth of Massachusetts,
Mr. Benjamin K. Guthrie, Attorney- at-Law, Foley Hoag LLP, member of the Bar of the
Commonwealth of Massachusetts,
Mr. Ofilio J. Mayorga, Attorney-at-Law, Foley Hoag LLP, member of the Bars of the Republic of
Nicaragua and New York,
as Assistant Counsel; - 7 -
Le Gouvernement du Nicaragua est représenté par :
S. Exc. M. Carlos José Argüello Gómez , ambassadeur de la République du Nicaragua auprès du
Royaume des Pays-Bas,
comme agent et conseil ;
M. Stephen C. McCaffrey, profe sseur de droit international à la McGeorge School of Law de
l’Université du Pacifique à Sacramento, ancien membre et ancien président de la Commission
du droit international,
M. Alain Pellet, professeur à l’Université de Paris Ouest, Nanterre- La Défense, ancien membre et
ancien président de la Commission du droit international, membre de l’Institut de droit
international,
M. Paul S. Reichler, avocat au cabinet Foley Hoag LLP, membre des barreaux de la Cour suprême
des Etats-Unis d’Amérique et du district de Columbia,
M. Andrew B. Loewenstein, avocat au cabinet Foley Hoag LLP, membre du barreau du
Commonwealth du Massachusetts,
comme conseils et avocats ;
M. César Vega Masís, ministre adjoint des affaires étrangères, directeur des affaires juridiques, de
la souveraineté et du territoire au ministère des affaires étrangères,
M. Walner Molina Pérez, conseiller juridique au ministère des affaires étrangères,
M. Julio César Saborio, conseiller juridique au ministère des affaires étrangères,
comme conseils ;
M. Edgardo Sobenes Obregon, conseiller à l’ambassade du Nicaragua au Royaume des Pays-Bas,
Mme Claudia Loza Obregon, premier secrétaire à l’ambassade du Nicaragua au Royaume des
Pays-Bas,
M. Benjamin Samson, chercheur, Centre de droit international de Nanterre (CEDIN), Université de
Paris Ouest, Nanterre-La Défense,
Mme Cicely O. Parseghian, avocate au cabinet Foley Hoag LLP, membre du barreau du
Commonwealth du Massachusetts,
M. Benjamin K. Guthrie, avocat au cabinet Foley Hoag LLP, membre du barreau du
Commonwealth du Massachusetts,
M. Ofilio J. Mayorga, avocat au cabinet Foley Hoag LLP, membre des barreaux de la République
du Nicaragua et de New York,
comme conseils adjoints; - 8 -
Mr. Danny K. Hagans, Principal Earth Scientist at Pacific Watershed Associates, Inc.,
Mr. Robin Cleverly, Geographical and Technical Consultant,
Ms Blanca P. Ríos Touma, Ph.D., Assistant Professor at Universidad Tecnología Indoamérica in
Quito, Ecuador,
Mr. Scott P. Walls, Master of Landscape Architecture Environmental Planning, Sole Proprietor
and Fluvial Geomorphologist at Scott Walls Consulting, Ecohydrologist at cbec ecoengineering,
Inc., and Chief Financial Officer and Project Manager at International Watershed Partners,
Ms Victoria Leader, Geographical and Technical Consultant,
as Scientific Advisers and Experts. - 9 -
M. Danny K. Hagans, spécialiste principal des sciences de la terre de Pacific Watershed
Associates, Inc.,
M. Robin Cleverly, consultant dans les domaines géographique et technique,
Mme Blanca P. Ríos Touma, Ph.D ., professeur adjoint à l’Universidad Tecnología Indoamérica
de Quito (Equateur),
M. Scott P. Walls, titulaire d’une maîtrise en architecture paysagère et en planification de
l’environnement, propriétaire unique et géomorphologue fluvial de Scott Walls Co nsulting,
spécialiste en écohydrologie de cbec ecoengineering, Inc., directeur financier et chef de projet
pour International Watershed Partners,
Mme Victoria Leader, consultante dans les domaines géographique et technique,
comme conseillers scientifiques et experts. - 10 -
Le PRESIDENT : Veuillez vous asseoir. L’audience est ouverte. La Cour se réunit ce matin
pour la poursuite du premier tour de plaidoiries du Nicaragua. Je vais donner d’abord la parole à
M. Reichler.
Mr. REICHLER:
THE EVIDENCE REGARDING N ICARAGUA ’S DREDGING
OF THE SAN JUAN R IVER
1. Mr. President, Members of the Court, good morning. My subject today is Nicaragua’s
dredging programme and it will be divided into two parts. In the first part, I will discuss the
evidence showing that dredging of the Lower San Juan River, as Nicaragua h as been doing for the
past four-and-a-half years, is necessary fornavigation, and for maintaining a sufficient flow of
fresh water downstream to the internationally recognized and protected wetlands on both sides of
the river, which depend on those waters for their environmental health and ecological balance.
2. In the second part of my presentation, I will discuss the evidence that refutes Costa Rica’s
allegations that the dredging programme, as carri ed out by Nicaragua, has caused, or ilikely to
cause, harm to Costa Rica. As you will see, Mr. President, the evidence, including evidence
supplied by Costa Rica’s own expert, Professor Thorne, establishes conclusively that there has
been no such harm; nor is there likely to be any in the future.
I. The need for dredging
3. In regard to the need for Nicaragua’s dredging programme, I will begin with the evidence
supplied by Costa Rica’s expert. In his summary report, submitted on 16 March, Professor Thorne
described the Lower San Juan as a “declining river” 1. He elaborated on this in hi s main report,
annexed to Costa Rica’s Memorial. In that report, he concluded that the Lower San Juan is
progressively silting up and losing its conveyance capacity because it is “unable to accommodate”
the heavy load of sediment it receives from upstream. This sediment is “deposited in and along the
(mainly meandering) channel in the form of shoals, islands, point bars and natural levees”. On
Tuesday, during his cross-examination, Professor Thorne told us that the Lower San Juan River is
1Thorne Summary Report for Certain Activities case, March 2015, para. 2.4.
2
Thorne October 2011 Report, p. II-27. - 11 -
so full of sediment that it cannot be navigated in the dry season: “A channel that is navigable
during the wet season may not be navigable during the dry season, as is the case for t he Lower Rio
San Juan itself.” (P. 25.)
4. Professor van Rhee, Nicaragua’s dredging expert, whom you will meet this morning,
agrees with Professor Thorne. In his summary report, Professor van Rhee calls the Lower San Juan
“a zone of increasing sediment accumulation and, as a result, continually reduced
flow. This is because the river downstream from the bifurcation [where most of th e
water flows into the Colorado River] receives more sediment than it can transport,
such that the excess settles and accumulates.” 3
5. Professor van Rhee calls the accumulation of sediment in the lower stretch of the river
“self-perpetuating, because the deposition and accumulation of sediment reduces flow
in those reaches, decreasing the river’s transport capacity, which in turn promotes
further sediment deposition. The problem thus worsens as the amount of sediment
reaching the Lower San Juan increases.” 4
Professor Thorne agrees.
6. The evidence shows that by 2008 Nicaragua’s environmental regulatory authorities had
5
concluded that sedimentation of the river “poses serious problems for navigation” . Municipal
authorities had identified certain str etches where “boats run aground ”, especially “in the summer
[that is, the dry season] due to the loss of water flow . . . Sometimes boats will remain for hours or
days before reaching their final destination.” 6 In one stretch, in particular, there were numerous
7
sandbars, and depths of less than 0.3 m were recorded .
7. Both Parties’ experts, Professor van Rhee and Professor Thorne, agree that:
8
“Sedimentation and consequent reduced flow impede navigation of the river”
such that, in the Lower San Juan “continuous dredging is required . . . because
sediment accumulation does not cease after the initial dredging has been carried out.
3Van Rhee Summary Report, 15 March 2015, para. 4.
4Ibid.
5
MARENA Administrative Resolution No. 038 -2008, 22 Dec. 2008, submitted as Ann. 33 to Nicaragua’s
Counter-Memorial, CMN, Vol. III, p. 81.
6
Environmental Impact Study for Improving Navigation on the San Juan de Nicaragua River , Sep. 2006, p. 7;
CMN, Ann. 7.
7Environmental Impact Study for Improving Navigation on the Sa n Juan de Nicaragua River, Sep. 2006;
pp. 16 & 119; see also EPN 2014 Annual Report, p. 4 (noting the “shallow depth (less than two feet) and the presence of
areas with sandbanks” in this stretch).
8Van Rhee Summary Report, 15 March 2015, para. 6. - 12 -
Maintenance of navigability requires ongoing removal or relocation of newly
deposited sediment.” 9
8. In Professor Thorne’s words: “maintaining navigation in the Río San Juan for vessels
with drafts greater than, say about 1 m, will require not a si ngle, capital operation but repeated
dredging and the removal of hundreds of thousands of cubic metres of sediment year after year” 10.
As Professor Thorne explained in his first report:
“The aims of dredging a river to improve navigation are to substant ively
increase the minimum depth in the navigation channel during low flow to a value
greater than the draft of the largest vessel seeking passage and remove all sediment
shoals and bars that could present a danger to shipping.” 11
9. Those are precisely Ni caragua’s aims. T heir modest nature should be underscored.
Nicaragua is not aiming to dredge a channel sufficient to allow the passage of the QE II or the
latest supertanker. Its programme is only designed to enable small vessels to navigate the lower
reaches of the river, and to access the riverine communities and the village of San Juan del Norte at
the river’s mouth. For budgetary reasons, the original scope of the programme was reduced. It
now covers eight small areas of the river shown on the scree n and at tab 1 of your judges’
folder within a 22 -km stretch where the accumulation of sediment and resulting obstacles to
navigation, especially in the form of shoals and sandbars, are particularly problematic. And you
can see these areas before you. [Screen on: fig.5.3 from CMN, p. 225.]
10. There is no plan to widen the river, or disturb the Costa Rican bank in any way. The
programme calls for the restoration of a small navigation channel within the river, that is no more
than 30 m wide at the t op, and 20 m wide at the bottom, and 2 m deep 1. In the Project Design
Study for the dredging programme, which was part of the E nvironmental Impact Study, produced
in 2006, Nicaragua determined that this would produce an increase in flow of 2 per cent, and that
13
this would be sufficient for the small boats that navigate this portion of the river .
11. Just as the dredging programme is essential for navigation, it is also necessary to
maintain a sufficient supply of fresh water to the wetlands downstream, which depend on it for
9Van Rhee Summary Report, 15 March 2015, para. 8.
10
Thorne October 2011 Report, p. II-28.
11Thorne October 2011 Report, p. II-35.
12Environmental Impact Study for Improving Navigation on the San Juan de N icaragua River, Sep. 2006,
pp. 4, 6, 11-13; CMN, Ann. 7.
13
Project Design Study, Sep. 2006, p. 18, CMN, Ann. 8. - 13 -
their survival. The need to maintain the level of the San Juan’s flow of water to these wetlands was
underscored by Ramsar, in its report of December 2010. I quote Ramsar: “It is crucial to maintain
the river discharge and patterns of the San Juan River upstream of the [Humedal Caribe Noreste
that is, the Ramsar site on the right bank of the river ] in order to preserve it as a healthy and
sustainable wetland in the long term.” 14 Professor Thorne agrees: “[b]elow the Delta, the Río San
Juan and Río Colorado support a linked system of distributaries, swamps, flooded forests, lakes,
and coastal lagoons that makes up the wetlands of the Isla Calero that are part of the ‘Humedal
Caribe Noreste’ (HCN) which was designated in 1996 as a wetlan d of international importance
15
under the Ramsar Convention” .
12. As explained by Professor van Rhee:
“Dredging, which is an effective technique for maintaining flows to wetlands,
also serves to preserve the ecological health of the environmentally sensitive areas in
the vicinity of the Lower San Juan River. Accumulation of sediment in the river has
adverse consequ16ces for the wetlands of international importance that are sustained
by its flows.”
13. In sum, Mr. President, the evidence including the reports of both Parties’ experts and
Ramsar shows that Nicaragua’s dredging programme is necessary both for navigation and for
sustaining the wetlands downstream.
II. Costa Rica’s allegations of harm
14. I turn next to the second part of my presentati on, and address the evidence in regard to
Costa Rica’s allegations that it has been harmed, or is likely to be harmed in the future, by the
dredging programme.
15. In its Memorial, Costa Rica presented a number of claims of different kinds of harm
allegedly caused by Nicaragua’s dredging of the river. But this week, they appear to have
abandoned all of them, save one: that Nicaragua’s dredging programme has caused , allegedly, a
significant reduction in the flow of the Colorado River. This claim was repe ated numerous times
14
Ramsar Secretariat, “Ramsar Advisory Mission Report No. 69: North-eastern Caribbean Wetland of
International Importance (Humedal Caribe Noreste), Costa Rica”, 17 Dec. 2010, submitted as Ann. 147 to Costa Rica’s
Memorial, Vol. IV, pp. 89, 131.
15Thorne October 2011 Report, p. vi.
16
Van Rhee Summary Report, 15 March 2015, para. 10. - 14 -
by Mr. Ugalde on Wednesday. I emphasize “repeated”. Here are just a few examples; you can
find them as well in tab 2 of the judges’ folder:
16. “Nicaragua’s dredging is intended to refashion the geography in the region of the mouth
of the San Juan, in a manner which necessarily risks significant adverse impact on the Colorado
River.” (P. 56, para. 5.)
17. On the next page of the transcript : “The actual dredging programme will involve the
drastic refashioning of geography with the strong likelihood of detriment to the Colorado
River . . .” (P. 57, para. 11.)
18. Three pages later: “as Nicaragua has said its aim is to refashion the geography of the
Lower San Juan, with dramatic implications for the Colorado River” (p. 60, para. 21).
19. Four pages later, he refers to Nicaragua’s “explicit stated intention to refashion
geography and divert flow from the Colorado River” (p. 64, para. 41).
20. About these statements, Mr. President, several observations are in order. First, the
rhetoric spirals upward with each iteration of the claim. From “risks [of] significant adverse
impact,” it escalates to “strong likelihood of detriment”, and from there to “dramatic implications”,
and finally to “divert[ing] flow from the Colorado River”.
21. The second observation is that no citations to the evidence are provided for any of these
statements that I just read . None. There is not even a citation for Nicaragua’s alleged “explicit
stated intention”. If it is explicit and stated, where is it? Nor is there one for “as Nicaragua has
said”. Where and when has Nicaragua said this? There is no evidence cited in the transcript to
support these assertions. Not for any of them.
22. Now, Mr. Ugalde, who is my friend, is a man of many talents. As you have seen, he is a
very talented advocate. And he is an equally talented diplomat. Unless he is much older than he
looks, he has achieved the rank of ambassador at a remarkably young age, which is a notable
achievement. He obviously has a brilliant career ahead of him, and given the history between these
Parties, he may spend much of it in this Great Hall. But one thing he is not is a geologist, or a
geomorphologist, or a hydrologist. Nor is he an expert witness, whose assertions constitute
evidence. - 15 -
23. So let us leave the rhetoric behind, and see what Costa Rica’s real expert has said about
the impact of Nicaragua’s dredging programme on the Colorado River.
24. This was Professor Thorne’s conclusion, set forth in his extensive written report, at the
time Costa Rica filed its Memorial: “To date, there is no evidence that the dredging programme
has significantly affected flows in the Río Colorado.” 17 Now, that is a statement worth repeating;
“no evidence that the dredging programme has significan tly affected flows in the Río Colorado ”.
And t here is still no such evidence. Professor Thorne reviewed the report prepared by
Professor van Rhee, in collaboration with Professor de Vriend, which calculated that the dredging
programme would reduce the fl ow of the Colorado River by only 3 per cent 18. Professor Thorne
19
called this impact “negligible” .
25. In fact, Professor Thorne’s main criticism of the Van Rhee/De Vriend report was that
they should have used a more sophisticated methodology to calculate flow rates. He identified the
method that he considered superior. Professor van Rhee then used Professor Thorne’s method to
recalculate the flow rates. The result was that the diminution in flow was not 3 per cent, it was
1.5 per cent. In other words, Professor Thorne’s approach demonstrated that the impact on the
Colorado River’s flow was about half of the 3 per cent figure that he already regarded as
“inconsequential”. In his summary report of March 2015, Professor Thorne agreed with
Professor van Rhee’s recalculation, and called the reduction in flow “meagre”. Mr. President, I do
not really know the difference between “meagre” and inconsequential, if there is one; but I know
that neither one means “significant”.
26. There has never been any evidence in support of Costa Rica’s claim. Costa Rica’s own
evidence has always defeated it. The Court will recall the evidence adduced at the oral hearing on
Costa Rica’s first request for provisional measures, in January 2011. In particular, there was a
statement by the Foreign Minister of Costa Rica from 8 September 2010 in which he said that, at
17
Thorne October 2011 Report, p. IV-3.
1See Van Rhee Summary Report, 15 March 2015, para. 19.
19
Thorne October 2011 Report, p. vii. - 16 -
most, Nicaragua’s dredging programme would diminish the flow of the Río Colorado by under
12 per cent, which the Foreign Minister described as not a material impact . 20
27. The Foreign Minister’s statement was based on a Costa Rican scientific study, also
adduced at the January 2011 hearing, which calculated that if Nicaragua were to dredge the Lower
San Juan to a width of 120 m, and a depth of 5 m, the flow of the Colorado would be diminished by
less than 5 per cent 2. That is Costa Rica’s own scientific study. But to really appreciate what it
says, it needs to be borne in mind that it makes two assumptions about Nicaragua’s dredging
programme that are not t he case. First, it assumes that the Lower San Juan would be widened by
Nicaragua from its current width of 90 m to 120 m. There has never been such a plan. Second, it
assumes that the river would be dredged to a depth of 5.75 m, when the programme calls for a
depth of 2 m. Even the much more expansive scenario hypothesized by Costa Rica’s scientists
produced a flow reduction of only 5 per cent . Recall, if you will, that the Foreign Minister
considered a 12 per centreduction immaterial.
28. And this brings us to the scenarios addressed by Professor Thorne, about which he was
questioned by Judge Xue. Although I will be the first to affirm that Professor Thorne was a most
co-operative witness, I believe he did not really answer Judge Xue’s question about the baseline for
these scenarios. The answer is this. The baseline is what he called in his report the “current
conditions of rivers at the Delta”. You can see that at the top of the top chart. As you can see from
that chart that is the top chart on the screen before you and in your judge’s folder, at tab 2 he
assumed, for his baseline, that the actual width and depth of the Lower San Juan before dredging
were 90 m and 4.75 m, respectively. These are now highlighted within the red rectangle. And he
determined that, in current conditions, the Colorado River captured 84 per cent of the San Juan
River’s flow, while the Lower San Juan captured 16 per cent. Again, we are highlighting these, for
the ease of the Court in following this on the screen.
2Speech of Mr. René Castro Salazar, Former Minister for Foreign Affairs and Worship before the Environmental
Commission of the Legislative Assembly, 8 Sep. 2010, pp. 5-6; CMN, Vol. II, Ann. 24.
21
C.S. Diseño, “Study of flow behavior in the bifurcation San Juan River Colorado River,” p. 5. Spanish
version submitted to the Court by Costa Rica onJanuary 2011; English translation submitted in Nicaragua’s judges’
folders on 11 January 2011 and as Ann. 11 to the Counter-Memorial. - 17 -
29. The second chart, directly below the first, shows the various scenarios considered by
Professor Thorne. He himself referred to them on page 41 of Tuesday afternoon’s transcript
as “three scenarios . . .” scenarios, exactly that,” as contrasted with the dredging prog ramme that
was actually approved and carried out. These scenarios turn out to be very similar, if not identical,
to the modelling done by Costa Rica’s own scientists in 2010. Dr. Thorne’s dredging scenario 1
assumed a widening of the river from 90 m to 1 20 m, and dredging to a depth of 5.75 m . The
results are shown in the third chart the one at the bottom of the screen. Under the heading
scenario 1, the flow of the San Juan River captured by the Colorado River is 80 per cent (as
compared with the baseline of 84 per cent), and the flow to the Lower San Juan is 20 per cent (as
compared with 16 per cent). Accordingly, under Professor Thorne’s first scenario, the diminution
of the Colorado River’s flow is a mere 4 per cent. But, as I have said and Professor Thorne agrees,
when you factor out the supposed widening of the river to 120 m, which did not occur and has
never been planned, and the dredging of a 5.75 m channel, and you apply Professor Thorne’s
preferred methodology for determining flow rates, the reduction in flow is only 1.5 per cent. Even
less than “inconsequential”.
30. Professor Thorne’s second and third scenarios stray even farther from the actual project.
Scenario 2, for example, assumes a widening of the river to 150 m, and a channel tha t is 6.75 m
deep. Scenario 3 assumes an even wider river and deeper channel. They have no bearing on this
case.
31. As Professor van Rhee has explained:
“Professor Thorne’s most optimistic scenario [that is scenario 1], which resulted
in the predicted diversion of . . . 4 per cent, assumed the project would expand the
river’s width to 120 m and deepen it to 5.75 m . . .
These assumptions are mistaken. The project is limited to dredging within the
existing river a navigation channel that is only 30 m wide at the top, 20 m wide at the
bottom, and 2 m deep. Conservatively modelled, this results in a diversion of only
20-50 m /s, representing approximately 3% of the Colorado’s flow. Professor Thorne
accepts that a reduction of this amount ‘would be ne gligible.’ In fact, the impact
would likely be even less. More realistic modelling suggests a reduction in the
22
Colorado River’s flow of less than 1.5%.” (Emphasis added.)
32. Thus:
2Van Rhee Summary Report, 15 March 2015, paras. 18-19. - 18 -
“The amount of sediment removed by the dredging is not enough to
meaningfully impact flow in the Colorado River, and Costa Rica’s prediction of a
significant diversion of flow from the Colorado has not materialized.” 23
On that, the experts of both Parties are agreed.
33. My friend Mr. Ugalde, apparently, is unimpressed by Costa Rica’s own expert. Or, at
least, he is unconvinced. He perseveres in the face of Professor Thorne’s opposing views. He
asserts that there are two distinct dredging programmes: the authorized programme, which he calls
a “paper programme”, and the “real project” which he says bears no relation to the authorized
one 24. But it was precisely th e real programme that Professor Thorne was referring to when he
wrote: “there is no evidence that the dredging programme has significantly affected flows in th e
Río Colorado” 25. And it was the actual programme he was describing when he wrote, last month,
26
that the impact of dredging on flow rates was “meagre” .
34. Undeterred, Mr. Ugalde displayed this chart on the screen, which was included at tab 103
of Costa Rica’s judges’ folder and we have provided, for the Court’s convenience, at tab 3 of our
folder this morning . About this chart, Mr. Ugalde said: “As you can see . . . the flow of the
27
Colorado River has been reducing, year on year.” “The average annual flow for 2014 was still
significantly below pre -dredging levels, far more than the 2 per cent assessed by Nicaragua’s
experts back in January 2011.” 28 He went on to say, five times, that Nicaragua had never produced
its own calculation of flow rates for th e San Juan River above th e bifurcation with the
Colorado River, or below it, in the Lower San Juan 29. Surely, he told the Court, Nicaragua either
has these figures and is concealing them, or has it in its power to obtain them but is deliberately
refusing to do so 30. In these circumstances, he argued, Costa Rica is entitled to an inference that
23Van Rhee Summary Report, 15 March 2015, para. 15.
24
E.g., CR 2015/3, p. 58, para. 16 (Ugalde).
25
Thorne October 2011 Report, p. IV-3.
26Thorne Summary Report, Certain Activities case, March 2011, para. 4.16 (a).
27CR 2015/3, p. 62, para. 30 (Ugalde).
28
CR 2015/3, p. 62, para. 31 (Ugalde).
29
CR 2015/3, pp. 60-62, paras. 23-29; p. 63, para. 33 (Ugalde).
30CR 2015/3, p. 62, para. 29 (Ugalde). - 19 -
these calculations would show that the dredging programme is having a significant impact on the
31
Colorado River’s flow .
35. Again, Mr. President, several observations are in order.
Pardon me, Mr. President, I am sorry about all the water breaks but I think I caught whatever
it was that Ambassador Argüello was suffering from yesterday, so I hope you will indulge my
frequent recourse to the glass of water.
Several observations are in order. First, my friend confuses correlation with causation. This
is the logical fallacy of post hoc , propter hoc. It has been said that “correlation does not imply
causation, but it does w aggle its eyebrows suggestively ”. And the re is no doubt about what
Costa Rica is trying to suggest here.
36. Second, it is simply not true that Nicaragua failed or refused to produce its calculations
of flow data, or give them to Costa Rica. Projected on the sc reen is the final page of Annex 16 to
Nicaragua’s Counter-Memorial, submitted on 6 August 2012. This is a report by INETER, the
Nicaraguan Institute for Territorial Studies, dated 26 June 2012. This page includes a chart of flow
rates, and much more, as you will see, from 2006, 2011 and 2012.
37. I would direct your attention, in particular, to the bottom two lines of the chart, which
show the volume of water that is, the flow data in the San Juan above and below the
bifurcation. The difference, of course, is what flows into the Col orado. As you look across the
chart from left to right in the penultimate line , you can see that the volume of water above the
bifurcation steadily and substantially decreases from 2006, where it is 1643.567 cubic metres per
second to 2011, where it is 1201.969 cubic metres per second approximately a 20 per cent
decrease and then to 2012, where it is 711.678 cubic metre per second, an additional 35 per cent
decrease. Then, correspondingly, the water in the Lower San Juan also decreases from
177 cubic metres per second in 2006, to 116 in 2011 and then to 65 in 2012, an overall decrease of
more than 50 per cent during this six-year period. This has nothing to do with dredging. It has
everything to do with the volume of water entering the San Juan River , above the bifurcation, from
its main tributaries in Costa Rica, and, especially, from rainfall. Even Mr. Ugalde acknowledges
3CR 2015/3, p. 63, paras. 35-38 (Ugalde). - 20 -
that the figures on his own bar chart are “ not proof that the proportion of the total flow of the
San Juan River prior to the De lta has reduced; other factors are relevant, most obviously the
amount of rainfall, which affects the overall flow volumes” 32 (emphasis added). Significantly,
Professor Thorne has observed in his summary report that “between December 2010 and
33
June 2013 . . . the weather during this period was much drier than usual” . There is the culprit, the
lack of rainfall.
38. Third, the mortal blow to Costa Rica’s suggestive bar chart, and to Mr. Ugalde’s
argument that the dredging programme has a significant impact on the Colorado River, if an
additional mortal blow is needed, is supplied by the “Observations” at the end of the INETER
report. These are based on the flow data just reviewed. The first one is:
“Measurement of liquid volume carried out on 1 August 20 06 reflect that the
volume of the Colorado River is 1,466,155 m3/s . This is based on subtracting from
the measured volume of waters in the upper Rio San Juan delta, the measured volume
of waters in the lower south Rio San Juan delta. The result of this e xercise indicates
that the liquid volume of the Rio San Juan of Nica ragua past the delta of the
Rio Colorado was equivalent to 12% of the volume of the Colorado River.”
39. The same exercise was repeated as reflected in the second observation as of
24 January 2011. I will read from the last sentence : “This simple exercise indicates that [the]
volume of water of the Rio San Juan of Nicaragua past the delta of the Rio Colorado was
equivalent to 10.7 per cent of the volume of the Rio Colorado.” That is, the volume of water in the
Lower San Juan decreased as a percentage of the volume of the Colorado between 2006 and 2011.
The opposite of what Mr. Ugalde and his suggestive bar chart would like you to believe. And, as in
the third observation, the exercise was performed again as of 26 April 2012: “The result of this
exercise indicates that [the] volume of water of the Rio San Juan of Nicaragua past the delta of the
Rio Colorado was equivalent to 10.1 per cent of the volume of the Rio Colorado.” This was a
further decrease in the flow of the Lower San Juan relative to the Rio Colorado. Mr. President, it
is absurd a word my c olleague and very long- time friend, Professor Pellet likes to use in his
application of Cartesian logic to the other side’s fallacious arguments, and the word is appropriate
3CR 2015/3, pp. 62-63, para. 32 (Ugalde).
3Thorne Summary Report, Construction of a Road case, March 2011, para. 2.10. - 21 -
here it is absurd to argue in the face of this evidence that Nicaragua’s dredging project has had
an adverse impact of any kind on the Colorado River, let alone one that is significant.
40. And it is also absurd for Costa Rica to continue to assert that Nicaragua has failed to
provide, concealed, or refused to obtain, critical evidence regarding flow data in the San Juan
River, above or below the bifurcation. What makes this even more absurd is that this very
document, this INETER report that we have just examined, was not only prov ided as an annex to
our Counter-Memorial two-and-a-half years ago, but it is mentioned in a footnote in Mr. Ugalde’s
own speech.
41. This photograph [screen on] was also displayed duri ng Mr. Ugalde’s speech on
Wednesday. And it was included in Costa R ica’s judges’ folder at tab 100 you will find it not
only on the screen, but it is the first page at tab 5 of our folder this morning. This photograph was
said on Wednesday to depict “the massive dumping of sediment at one location, for example, no
34
barriers were erected at all as you can see ” . In the transcript, a footnote follows this statement.
[Screen on] It reads: “Photograph of sediment deposit near delta. 14 January 2015 . . .”5 Two
sentences after this statement , Mr. Ugalde said: “Nicaragua’s dredging has run out of control,
36
involving the dumping of sediment, including in CostaRica’s territory.”
42. Mr. President, Members of the Court, I ask you, what does this photograph, coupled with
Mr. Ugalde’s statements, suggest to you? The answer is obvious, it suggests that this is a pile of
dredging sediment that Nicaragua dumped in Costa Rican territory. But it again turns out that this
is nothing more than another suggestive waggle of the eyebrows. The location is plainly near the
delta, as Mr. Ugalde said, but it is on Nicaragua’s side of the river. That he did not tell you.
43. In regard to the locations where Nicaragua has deposited its dredged sediment, here is
what UNI TAR/UNOSAT reported in November 2011: they are “located exclusively on
Nicaraguan territory” 37and “[t]here were no visible indications that this depositional activity has
been occurring on or otherwise adversely impacting vegetation on the south ba nk of the San Juan
34
59.19.
3Fn. 102.
359-60.20.
37
UNITAR/UNOSAT, “Morphological and Environmental Change Assessment: San Juan River Area (including
Isla Portillos and Calero), Costa Rica”, 8 Nov. 2011, MCR, Ann. 150, p. 160. - 22 -
38
within Costa Rican territory” . UNITAR/UNOSAT further reported that: “there are no visible
indications at present that the dredging activity along this section of the San Juan River has had a
39
significant environmental or hydrological impact along the Costa Rican side of the border” .
44. To be precise, all of the sites but one were unquestionably on Nicaraguan territory. One
of the sites was in the disputed area, on the left or north bank of the caño that Nicaragua claims as
the boundary be tween the two P arties. In regard to that site, Professor Thorne wrote that “the
impacts were of local extent and time -limited duration” due to the “recovery and regrowth of
40
riparian vegetation” . In other words: no harm. This is demonstrated by the photographs and
satellite imagery presented in Professor Kondolf’s summary report of 16 March. [S creen on]
These two photographs which you now see and which are the first page at our tab 6 today
appeared in Professor Thorne’s first report, they were taken in October 2010 and July 2011, as you
can see, and show that the sediment disposal site had largely been covered by vegetation shortly
after its formation. The satellite image, from September 2014, which is now before you and which
is also at tab 6 of our folder today, shows that now more than three years after the latest
photograph in Dr. Thorne’s report that, as of September 2014, the site has now fully recovered
and is completely covered by vegetation. It is now indistinguishable from the surrounding area.
As pointed out by Professor Kondolf: “The small pile of sediment seen in Figure 1 [that was the
earlier photograph] had become partially re- vegetated a few months later [that is the July 2011
photograph] . . . It has since re-vegetated entirely, as seen in [this] Figure 3.” 41
45. The inevitable conclusion is this. Costa Rica has failed to show that Nicaragua’s
dredging programme has caused it harm, or that the programme is likely to cause Costa Rica harm,
of any kind. The evidence conclusively disproves all of Costa Rica’s allegations.
46. Mr. President, Members of the Court, this ends my presentation on the evidence
regarding dredging. In just a few moments, Nicaragua will tender its e xperts for examination by
Costa Rica and the Court. B efore doing so, I will take two minutes to introduce them to you.
38
UNITAR/UNOSAT, “Morphological and Environmental Change Assessment: San Juan River Area (including
Isla Portillos and Calero), Costa Rica”, 8 Nov. 2011, MCR, Ann. 150, p. 162.
3UNITAR/UNOSAT, “Morphological and Environmental Change Assessment: San Juan River Area (including
Isla Portillos and Calero), Costa Rica”,8 Nov. 2011, MCR, Ann. 150, p. 162.
4Thorne October 2011 Report, p. I-61.
41
Kondolf Summary Report for Certain Activities case, 16 March 2015, para. 11. - 23 -
Nicaragua’s first expert is Professor Cornelisvan Rhee, who is Professor of Dredging Engineering
at Delft University of Technology. He holds a Ph.D. in Dredging Engineering and Computational
Fluid Dynamics, among other degrees, and has been engaged in research for the dredging industry
since 1984, and published on a wide range of issues related to dredging.
47. Nicaragua’s sec ond expert is Professor Mathias Kondolf, Professor of Environm ental
Planning at the University of California, Berkeley, who holds a Ph.D. in Geography and
Environmental Engineering, as well as other degrees. His areas of research focus on fluvial
geomorphology and human- river interactions, with emphasis on sediment management and river
restoration. He co-edited the reference work: Tools in Fluvial Geomorphology. He has served on
the Environmental Advisory Board of the US Army Corps of Engineers.
48. Mr. President, Members of the Court, I thank you for your kind c ourtesy and patient
attention. It has been a privilege for me to appear before you. We are prepared to tender our
experts at your command.
Le PRESIDENT : Merci, Monsieur Reichler. La Cour va à présent se retirer pour une pause
de 15 minutes après laquelle il sera procédé à l’audition des experts cités par le Nicaragua.
L’audience est suspendue.
L’audience est suspendue de 10 h 50 à 11 h 5.
Le PRESIDENT : Veuillez vous asseoir. L’audience est reprise. La Cour va procéder
maintenant à l’audition des d eux experts cités par le Nicaragua. La procédure suivie pour
l’audition de ces experts sera identique à celle qui a été suivie pour l’audition de l’expert cité par le
Costa Rica.
La Cour entendra ce matin M. Cornelis van Rhee et M. Mathias Kondolf. M. v an Rhee,
vous pouvez prendre place à la barre.
Bonjour, Monsieur. Je vous invite à faire la déclaration solennelle prévue pour les experts
dont l’énoncé figure à l’alinéa b) de l’article 64 du Règlement de la Cour. - 24 -
Mr. van RHEE:
“I solemnly declare upon my honour and conscience that I will speak the truth,
the whole truth and nothing but the truth, and that my statement will be in accordance
with my sincere belief.”
Le PRESIDENT : Merci, Monsieur van Rhee. Je m’adresse maintenant au conseil du
Nicaragua, M. Reichler, qui va vous demander de confirmer l’exposé écrit qui se trouve devant
vous. Monsieur Reichler.
Mr. REICHLER: Merci, Monsieur le président. Good morning, Professor van Rhee. May I
please ask you whether you would confirm that the three documents in front of you, that is, your
summary prepared for purposes of this hearing and your two reports prepared in the context of this
case, reflect your honest expert views.
Mr. van RHEE: Yes, they do.
Mr. REICHLER: Thank you very much. I introduce you to my good friend
Mr. Wordsworth.
Mr. WORDSWORTH: Thank you very much.
Professor van Rhee, good morning. You referred at various points in your 2012 report and
in your summary to Nicaragua’s dredging programme and, as I understand it, there was an initial
programme put in train ing as a result of the 2008 MARENA Resolution to which you refer at
footnote 4 of your summary, and you also refer to what in effect amounts to a revised programme
in what you call the 2011 EPN Annual Report. That is correct, isn’t it?
Mr. van RHEE: Can you please point to me where it is?
Mr. WORDSWORTH: That is at footnote 9 of your summary you refer to the EPN 2011
Annual Report. Do you see the EPN Dredging Project Technical Evaluation Analysis improving
Navigation on the San Juan River.
Mr. van RHEE: Yes. - 25 -
Mr. WORDSWORTH: At paragraph 9 of your summary, you are referring to the
programme set out in the 2011 EPN Annual Report when you say that EPN estimated in 2011 that
it needed to dredge approximately 95,000 cubic metres of sediment in the 5 km also immediately
downstream of the delta.
Mr. van RHEE: That is right.
Mr. WORDSWORTH: As I understand it, that was a total figure from the 2011 EPN Annual
Report?
Mr. van RHEE: That was the figure for the initial, or what we call capital, dredging.
Mr. WORDSWORTH: Yes, an initial total figure. They anticipated that they would be
dredging 95,000 cubic metres.
Mr. van RHEE: For the initial dredging.
Mr. WORDSWORTH: For the initial dredging?
Mr. van RHEE: Yes, in dredging we always distinguish between the initial capital dredging
and maintenance dredging.
Mr. WORDSWORTH: Right. If you turn to the judges’ folder in front of you, and if I ask
you to go to tab 1, page 10, of that document. Do you see ther e I think this is what you are
referring to it says “Revised Project Scope”? There it refers to the updated programme and, in
particular, you will see that it sets out the quantities of sediment to be dredged from various parts of
3
the river and at (e) it says “Reyes El Delta, dredging volume: 93,735.71 m ”.
Mr. van RHEE: Yes.
Mr. WORDSWORTH: At least there it doesn’t say “initial”, does it?
Mr. van RHEE: No, but the whole scope of the project was the design, so from the project
design follows the capital dredging volumes. - 26 -
Mr. WORDSWORTH: Well, in any event, wh en we see what happens and, as you state in
paragraph 9 of your report, rather than just dredging the 95,000 cubic metres, in fact, in 2011, they
dredged over 130,000 cubic metres.
Mr. van RHEE: That is correct.
Mr. WORDSWORTH: And then that upward trend continued in 2012- 2014, and you have
set out the figures helpfully in paragraph 9 of your report, so that we know that in fact, in this area
around the delta, the actual dredging volumes have been much higher than 95,000 cubic metres.
Mr. van RHEE: That is correct.
Mr. WORDSWORTH: In fact, over the period 2012 to 2014 some 600,000 cubic metres
was dredged.
Mr. van RHEE: That is right; it follows from the reports.
Mr. WORDSWORTH: To be clear, where you are referring to the delta, you mean the
bifurcation between the Lower Río San Juan and the Colorado River: you are not referring to the
delta of the Lower Río San Juan when it meets the sea.
Mr. van RHEE: That is true; that’s the first stretch.
Mr. WORDSWORTH: Am I correct in thinking that there has been no new environmental
impact statement despite the substantial increase in volumes that have been dredged from this
stretch of the river?
Mr. van RHEE: I have not seen any new environmental impact statement, indeed.
Mr. WORDSWORTH: Right. That’s very fair; you have not seen one. And you refer, in
your summary, to a Ramsar Advisory Mission Report 69 of December 2010 which focused on the
impacts of Nicaragua’s excavation of the caño in 2010; that is correct, isn’t it? - 27 -
Now, are you aware that in April 2011 a rather more relevant advisory mission report at
least so far as concerns dredging was sent to Nicaragua by Ramsar for comment; are you aware
of that report?
Mr. van RHEE: I don’t know the report or the contents of it.
Mr. WORDSWORTH: You are not aware of it?
Mr. van RHEE: No.
Mr. WORDSWORTH: Well, let me just ask you some questions by way of general
proposition. The Ramsar report said in its conclusion: “any changes to the pattern of the fluvial
dynamics of the San Juan River due to anthropic processes: channelling, dredging, diversion of
waters, damming, will alter its flow as well as the dynamics of the associated wetlands and the
distribution and abundance of the species living there. Therefore, it is important to perform studies
of the relevant environmental impacts prior to its implementation.” Now, just as a matter of
general proposition, would you agree with that?
Mr. van RHEE: I do, and as f ar as I know, there was an environmental impact study done
and in this impact study also diversion of flow was investigated.
Mr. WORDSWORTH: Now, the environmental impact study which I think you are
referring to was done in 2006, and the question is whe ther there has been any environmental
impact study, such as referred to here, in relation to the actual dredging that has taken place, which
you have helpfully identified, is rather different to what was envisaged in 2006.
Mr. van RHEE: The actual dredging is different in the fact that there is additional
maintenance dredging needed to keep these channels open. But the actual flow going through the
Lower San Juan is not influenced by this extra dredging.
Mr. WORDSWORTH: Well . . .
Mr. van RHEE: In the way that, for instance, that there will be much more. - 28 -
Mr. WORDSWORTH: That is a question of flow, which I will come back to in a moment.
But surely there is a very significant difference between taking out of a river 95,000 cubic metres,
as planned in 2011, and taking out of the river over the course of 2011- 2014 730,000 cubic metres
and that gives rise to a potential different environmental impact.
Mr. van RHEE: Of course, there is a difference between 95,000 or 600,000 but the issue is
“how does it affect the flow of distribution?”. Is, for instance, this extra volume dredged, is a wider
channel dredged, which is not the case?
Mr. WORDSWORTH: Well, you say it is not the case but the question is, what is the
evidence to tell us what the impacts in terms of the flow have been, what the impacts in terms of
the actual channel dredged has been. If I can take you further on in this 2011 Ramsar Report.
Ramsar recommended, indeed, stated that it was essential to analyse the historic and current
hydrological characteristics considering the behaviour of the volumes of flow and the bed load in
the area of influence, specifically regarding the variations in the hydrometric level of the
San Juan River in representative segments along the main course. And likewise, it said it was
essential to analyse the hydrodynamic characteristics of the San Juan River as regards to expected
changes in the circulation of the water due to increase of the bathymetric section meander cut -off.
Now so far as you are aware, have t hose exercises been carried out so far as concerns the actual
programme of dredging as it has been carried through over the past three to four years?
Mr. van RHEE: As far as I know, the effect of the dredging on the bifurcation is done. I do
not know, I am not aware of specific effects of this cut-off of the meander.
Mr. WORDSWORTH: But, so far as you are aware, these relevant analyses have been
carried out?
Mr. van RHEE: Yes, analysis has been carried out on the change of the river profile and
then the according difference in flow distribution. It was done in the EPN study of 2006 and . . .
Mr. WORDSWORTH: That is 2006, what I am asking you about is what has happened in
relation to the actual dredging that has taken place between 2011 and 2014. - 29 -
Mr. van RHEE: Yes, in regard to what, the volume?
Mr. WORDSWORTH: Yes. Do you know if those analyses that Ramsar is recommending
as essential, do you know whether those have been carried out?
Mr. van RHEE: Not that I know.
Mr. WORDSWORTH: Now, you make reference in your 2012 Report to certain flow rates,
flow rate measurements that were taken by Nicaragua in 2006, 2011 and 2012 and they are in the
INETER Report and that, in fact, is the document note that Mr. Reichler has just put up on the
screen. You will recall it, it is in the judges’ folder and somebody will help me tell you which tab
it is. It is tab 4 of Mr. Reichler’s judges’ folder, if you want to it is not in that document, it is
not in that judges’ folder, it is tab 4 of Mr. Reichler’sjudges’ folder.
Now, I am right in thinking, am I not, that what this shows is flow rate s measurements
and I believe also suspended sediment flow measurements just on three individual dates? That
is correct is it not? So, one of the dates is 1 August 2006, one of the dates is 24 January 2011 and
one of the dates is 26 April 2012. So, three measurements spanning a period of six years.
Now it would, of course, have been possible for Nicaragua to take regular measurements of
flow above and below the delta, just as was in fact done for those three individual dates. There
would have been no difficulty so far as concerns Nicaragua taking those flow rate measurements?
That is correct, is it not?
Mr. van RHEE: Yes, that is possible.
Mr. WORDSWORTH: Well, is it correct or is it not?
Mr. van RHEE: Well, it is correct. Sorry, can you maybe repeat the question?
Mr. WORDSWORTH: Yes. It would, of course, have been possible for Nicaragua to take
regular flow rate measurements?
Mr. van RHEE: That is possible, that is correct, yes. - 30 -
Mr. WORDSWORTH: And such regular measurements would have provided an essential
basis on which to verify whether or not Nicaragua’s current increased dredging at the delta is or is
not causing any impact on the flow of water to the Colorado River. That is correct, is it not?
Mr. van RHEE: Yes but as far as we have seen now, studies have been done; initial studies
have been done by your expert; studies have been done by myself, together with a colleague of
mine, Professor de Vriend and in these studies we have looked at and already in 2011, the
distribution of flow and the influence of dredging on distribution, and we already predicted then
that the extra flow into the Río San Juan would be quite low, only a few per cent, and what I see
from these measurements is that they, in fact, convince us that these computations were right.
Mr. WORDSWORTH: Now, I understand what you are saying about the report you did in
2011. What I am interested in is what is actually happening by reference to the actual dredging that
is going on and exploring whether flow rate measurements could actually tell the Court what is
happening. And, of course, they could if they were taken. They would tell the Court exactly what
is happening in terms of how much water is going down the Lower San Juan and how much is
going into the Colorado. That is correct, is it not?
Mr. van RHEE: That is correct, yes.
Mr. WORDSWORTH: And I notice from the Ramsar 2011 Report, which regrettably you
have not been shown, there the Ramsar team says
“Considering the nature of the project and the area of influence, we suggest
incorporating the following variables into the Environmental Control and Supervision
Programme to be implemented by the EPN during the project and a hydrological cycle
afterwards, as well as the corresponding monitoring by MARENA.”
And then it sets out what it is recommending:
“Monthly monitoring of the hydrometric levels between the delta and the mouth
of the San Juan River, in representative sections along its main course, at least during
the construction phase of the project.
Monthly monitoring of the concentration of suspended solids in the water
column in representative sections along the main course of the river.”
That monthly monitoring, so far as you are aware, has not been done? - 31 -
Mr. van RHEE: I do not know, I only know these figures, but I think that more is always
better, of course. The question is, the information that we have got now upon which I have
concluded or upon which we looked at the results, I think that the matrix is the information that is
provided during this project is sufficient to form an opinion on what is happening in this river at
this bifurcation point. I am of the opinion, as an expert, that it is sufficient for me to state that these
dredging works have only a very limited influence on the flow distribution, which is also
acknowledged by your experts.
Mr. WORDSWORTH: Well, it depends, of course, on what is actually being done, what is
actually being dredged. But it is correct, is it not, that you in your report, you rely on the three
separate INETER measurements that were taken over this six -year period and seek to draw
conclusions from those. That is correct, is it not?
Mr. van RHEE: Well, in fact in my first report I only had the measurements before that time
and already then we estimated the effect; that was then confirmed by the later measurements.
Mr. WORDSWORTH: By the later measurements, you say three measurements over a
six-year period, three individual measurements. And of course, monthly monitoring would tell you
a very great deal more in terms of what is actually happening, in terms of flow rates.
Mr. van RHEE: I cannot deny that.
Le PRESIDENT : Monsieur Wordsworth, la durée de 20 minutes dont vous disposiez pour
ce contre- interrogatoire arrive à échéance dans une minute. Vous pouvez encore poser une
question avec une réponse brève. Mais vous pouvez y renoncer aussi.
Mr. WORDSWORTH: So, perhaps I can just ask you, that you would accept that in actual
fact you can tell little or nothing definitive from three individual measurements that are carried out
over a period of six years, at different times of the year . . .
Mr. van RHEE: Sorry, I missed the first part of the question. - 32 -
Mr. WORDSWORTH: You would accept that you can actually tell very little definitive
from the three individual measurements carried out over a six -year period at different times of the
year, and that is all that we have on the record.
Mr. van RHEE: I do not accept that.
Mr. WORDSWORTH: You do not accept that?
Mr. van RHEE: No.
Mr. WORDSWORTH: You think that those three measurements are sufficient to draw
expert conclusions?
Mr. van RHEE: Yes, together with all the other reports, all the other evidence, all the other
reports of other experts that is, for me, sufficient.
Mr. WORDSWORTH: And those measurements, the last of which was taken on
26 April 2012, that enables you to tell what is happening as of today in April 2015?
Mr. van RHEE: Not only th at measurement. The total picture you have to look at as an
expert, you cannot just look at one individual measurement.
Mr. WORDSWORTH: Thank you. I think I have probably strayed over my minute. Thank
you very much.
Le PRESIDENT : Merci, MonsieurWordsworth. Je me tourne maintenant vers M. Reichler,
le conseil pour le Nicaragua. Souhaitez -vous procéder à un interrogatoire complémentaire ? Si
c’est le cas, vous disposez d’une durée maximale de 20 minutes.
Mr. REICHLER: Thank you very much, Mr. Pre sident. I will try to be briefer than that.
Professor van Rhee, you said that there is a difference between capital dredging and maintenance
dredging. Could you explain that, please? - 33 -
Mr. van RHEE: Capital dredging, or initial dredging, is dredging that is needed to make, for
instance, a channel from the existing situation where we have just a flat riverbed and there we
dredge a channel with a certain dimension. But after we have dredged that channel, you are not
finished yet because nature tries to fi ll up the channel again. Nature tries to restore the original
situation of the river bed. That is what we call “sedimentation” and you have to re- dredge that
is also mentioned in the report several times re-dredge and re-dredge to keep this channel open,
especially in a river with a movable bed. That is normal, in fact, for all rivers where you dredge.
Mr. REICHLER: Thank you, Sir. Does that account for the difference in the dredging
amount which you identified as the 93,000 that is “capital dredg ing”, and then the higher amount
that Mr. Wordsworth asked you about: is the difference in those amounts the difference between
the capital dredging and the maintenance dredging?
Mr. van RHEE: Yes.
Mr. REICHLER: So, that additional amount that was dre dged was really just to keep the
same channel open without expanding the channel at all, that was envisioned by the project?
Mr. van RHEE: Yes.
Mr. REICHLER: And, I think you said that the maintenance dredging, this additional
dredging for maintenance purposes or re-dredging, had no impact on the flow as compared to the
capital dredging?
Mr. van RHEE: That is correct because you need this maintenance dredging to keep the
channel that you have created open, and the flow calculations are based on this profile.
Mr. REICHLER: And so, the re -dredging, or maintenance dredging, does not change the
flow profile or the flow rate?
Mr. van RHEE: No. - 34 -
Mr. REICHLER: So, if the flow rates and flow levels do not change as a result of the
maintenance dredging, is it correct to say that the impacts downstream, where the dredging is done,
would be unchanged?
Mr. van RHEE: That is correct.
Mr. REICHLER: So, the impacts downstream including in the protected wetlands
downstream from the dredging project would be no different as a result of the new dredging or
maintenance dredging than they would be for the capital dredging?
Mr. van RHEE: If you would not re -dredge, then in fact you could end up in the situation
where the whole river will dry up, so then you will have negative consequence.
Mr. REICHLER: And what is the long-term impact, the long-term effect, of the flow rates in
the . . .
Le PRESIDENT : Pardon, je vous interromps une seconde. M. Wordsworth demande la
parole. Je la lui donne.
Mr. WORDSWORTH: With respect, Mr. President, Mr. Reichler, I know that the Court is
obviously not that familiar with cross -examination and re -examination, but Costa Rica would
submit that in order to assist the Court, re -examination should be by way of opening questions as
opposed to leading questions that asks, in effect, the expert to say “I have just said something, will
you please agree with that?”. It is not a very helpful way, we would submit, of getting the Court,
the expert, evidence that will assist it in its deliberations.
Le PRESIDENT : Merci, Monsieur Wordsworth. Certainement une question doit être aussi
sincère que possible et laisser à la personne interrogée le soin de donner la bonne réponse. Et je
suis sûr que M . Reichler tient compte de cette observation. Vous avez la parole pour poursuivre,
Monsieur Reichler. - 35 -
Mr. REICHLER: You are correct, Mr. President, and I thank you very much. Do you have
an opinion on what is the long- term trend in terms of the flow rates for the Lower San Juan River
and the Colorado River, given the natural processes?
Mr. van RHEE: When you look at the long timescale, that is more when you look back a
couple of centuries, you will see that gradually the flow distribution is changing, so less water is
going to the San Juan and more to the Colorado.
Mr. REICHLER: Do you expect that trend to continue?
Mr. van RHEE: I think so, yes.
Mr. REICHLER: Would Nicaragua’s dredging of the Lower San Juan have an impact, or an
effect, on what you have just described as the long-term trend?
Mr. van RHEE: Well, it can delay this trend, depending on the volume of dredging and if
you are able to keep up with this extra sedimentation.
Mr. REICHLER: Do you foresee that Nicaragua’s current dredging programme has the
capacity to rever se this trend that you described as distributing increasing flows to the Colorado
and less flows to the San Juan?
Mr. van RHEE: I doubt it because you see that currently the amount of dredgers available
on site are more or less concentrated on the first section of the San Juan River, where more
sedimentation takes place. And I think they have a difficult job to really dredge all the
sedimentation in this section alone. So, when you really want to reverse the situation, you really
need a totally other dredging programme, of a different magnitude.
Mr. REICHLER: Do you therefore think to be perfectly . . . neutral so that with the
present Nicaraguan dredging programme, as it is, do you foresee , what do you foresee , over the
medium term/long term, in terms of the distribution of flow of the San Juan River between the
Colorado River and the San Juan River? - 36 -
Mr. van RHEE: I think that with the current volume of dredging, maybe they can maintain
the current flow distribution, but maybe it is even not enough, at the moment, so that gradually the
flow will decrease in the river.
Mr. REICHLER: Gradually decrease, in which river?
Mr. van RHEE: In the San Juan River.
Mr. REICHLER: And does that mean it will increase somewhere else?
Mr. van RHEE: Yes, at the end, but then we are talking over a long, very long, much longer
time period, maybe 100 years, I do not know: I have not looked into that in detail but at the end, it
can affect the total flow in the San Juan that it really will silt up and all the flow will then go the
Colorado.
Mr. REICHLER: I have no further questions.
Le PRESIDENT : Merci. Merci, Monsieur Reichler. Je vais maintenant donner la parole à
Monsieur le juge Gaja qui souhaite poser une question à l’expert. Monsieur le juge Gaja, vous
avez la parole et je demanderai à Monsieur van Rhee de répondre à la question aussi tôt après
qu’elle aura été posée. Monsieur Gaja.
Judge GAJA: Thank you, Mr. President. Professor van Rhee, page 9 of your summary
report, referring to the 2015 summary report, you observed that the first caño, the 2010 caño, “is
now entirely closed”. This less than four years after the clearing operation was completed. My
question is whether this phenomenon is consistent with the existence, before 2010, and possibly for
a long period, of a navigable channel following the same track as the first caño? Thank you.
Mr. van RHEE: I find it difficult to answer that question. This observation relates to the
recent situation, where the channel was cleaned to a certain width and, as a result of that, flow
started to go through this caño, but this flow rate at the current morphological situation of the
river: the sediment load, etc. was not strong enough to keep this channel open. It does not say - 37 -
that before 100 years the same behaviour would also have been observed. So this conclusion is
related to the current situation. I hope that answers your question.
Le PRESIDENT : Monsieur le juge Gaja, vous en avez terminé ? Merci,
Monsieur van Rhee. Ainsi s’ac hève votre déposition. Nous tenons à vous remercier d’avoir bien
voulu comparaître devant la Cour. Vous pouvez à présent quitter la barre. Merci.
Mr. van RHEE: Thank you for your attention. It was a great pleasure to be standing here
before you.
Le PRESIDENT : La Cour entendra maintenant Monsieur Kondolf que j’invite à prendre
place à la barre.
Bonjour, Monsieur Kondolf.
Mr. KONDOLF: Good morning. It is a pleasure to be here.
Le PRESIDENT : Je vous prie de bien vouloir faire la déclaration solennelle prévue pour les
experts et qui figure à l’alinéa b) de l’article 64 du Règlement de la Cour. Je vous donne la parole.
Mr. KONDOLF: I solemnly declare upon my honour and conscience that I will speak the
truth, the whole truth and nothing but t he truth and that my statement will be in accordance with
my sincere belief.
Le PRESIDENT : Merci, Monsieur Kondolf. Je m’adresse maintenant au conseil du
Nicaragua qui va vous demander de confirmer l’exposé écrit qui se trouve devant vous.
Monsieur Reichler.
Mr. REICHLER: Thank you, Mr. President. Good morning, Dr. Kondolf. May I ask you to
confirm whether the three documents in front of you that is, your summary prepared for the
purposes of this hearing and your two reports prepared in the cont ext of this case reflect your
honest expert views.
Mr. KONDOLF: Yes, they do. - 38 -
Mr. REICHLER: Thank you very much; and I introduce you to my good friend,
Mr. Wordsworth.
Mr. KONDOLF: Good morning.
Mr. WORDSWORTH: Good morning, Dr. Kondolf. Can I ask you to go to paragraph 19 of
your summary that you have in front of you and you will see there, there is a section that begins
“E. The Existence of the Caño”.
Mr. KONDOLF: Yes.
Mr. WORDSWORTH: And in essentially the remainder of this summary report, you focus
on the issue whether there are, or have been, any distributaries flowing from the Río San Juan into
any part of the Harbor Head Lagoon, and of course you point to certain areas of disagreement that
you have with Professor Thorne. Correct?
Mr. KONDOLF: That is correct.
Mr. WORDSWORTH: What I want to explore with you is your expert view as to whether
the caño that Nicaragua says was cleared in 2010 existed in the period prior to 2010. And from this
summary I am finding it difficult to pin down exactly what your expert view is. So, given the
importance of this issue to Nicaragua’s defence in this case, am I right in taking it that iyour
expert view that this caño did indeed exist prior to 2010?
Mr. KONDOLF: It is my expert vie w that it is very likely that it existed: there is evidence
that it existed but I think one would need to go in the field and confirm. Well, obviously things
have been somewhat modified, but in general that is a good approach but it appears on some maps:
there is a certainly some evidence that such a caño existed.
Mr. WORDSWORTH: So, your evidence is that it is very likely that it existed?
Mr. KONDOLF: Yes. - 39 -
Mr. WORDSWORTH: Very good. Well, let me explore that by reference to the various
maps and images that you refer to in your summary and in your 2012 report. In your 2012 report,
you are really focusing on two 1961 images and the 1949 map that the Court has become familiar
with. At pages 13 to 14 of your 2012 report, you refer to these two 1961 aerial images, and you
rely on these as depicting the caño, and in fact Professor Pellet put at least one of these images up
on the screen yesterday, and I hope it is going to come up on the screen right now.
So, this is the first of the two images, and we can see what you say, you say that it shows the
lower half of the caño very clearly. Now, I just want to break this down a little. As I understood
Mr. Reichler’s questions on Tuesday, this photograph formed the basis of the 1988 United States
defense mapping agency map. Is that correct?
Mr. KONDOLF: I would need to look again at that legend, but as I recall, the legend for that
map indicated that it was based on this aerial photograph with a more recent photograph as well
from 1987 or imagery.
Mr. WORDSWORTH: Well, we will check that point on the 1987 [map], but on the
1961 map we are obviously in agreement. That is helpful for your reference to 1987 also. You are
obviously familiar with that 1988 United States defense map?
Mr. KONDOLF: Yes, I have looked at it, Sir.
Mr. WORDSWORTH: It was on the screen yesterday. And it was actually annexed to
Costa Rica’s Memorial. So I presume it was one of the maps that you reviewed when you were
putting together your 2012 report? Is that correct?
Mr. KONDOLF: I assume I did look at that one, I do not recall specifically at that time, but
presumably yes.
Mr. WORDSWORTH: So, if we put the 1988 map up on the screen, you will agree that that
does not show a caño where Nicaragua cleared, or excavated, the caño in 2010, does it? - 40 -
Mr. KONDOLF: Yes, what this map shows or what our map does [is] a perennial
caño which has been referred to as the Y caño to the north; along the course of the caño at the
southern tip of Harbor Head Lagoon, it does not show such a perennial channel.
Mr. WORDSWORTH: Exactly, and for the purpose of this case, I know Nicaragua is trying
to focus on this Y channel, but actually the caño it constructed, or excavated, or cleared, in 2010
does not follow that route, does it?
Mr. KONDOLF: That is correct.
Mr. WORDSWORTH: And, we can suppose that whoever prepared this map, at a number
of photographs I think you have referred to the [ 19]61 photograph and you have just referred to
a 1987 photograph was an expert in cartog raphy: whoever prepared this map was an expert in
cartography?
Mr. KONDOLF: Presumably, yes.
Mr. WORDSWORTH: And would presumably be an expert in drawing up maps from aerial
imagery?
Mr. KONDOLF: Yes, presumably so.
Mr. WORDSWORTH: And when it com es to your expertise, you are not an expert in
cartography are you?
Mr. KONDOLF: No, I have a doctorate in geography, so of course we are working with
maps all the time, but no, I am not a “cartographer” per se.
Mr. WORDSWORTH: And, you are not, likewise, an expert in drawing up maps from aerial
imagery?
Mr. KONDOLF: No. Not these kind of maps. - 41 -
Mr. WORDSWORTH: And, the second 1961 image that you refer to in your 2012 report
[it] is now up on the screen and you say that this shows the caño that you are referring to, the
2010 caño, extending the entire distance from the Río San Juan to Harbor Head Lagoon that is
what you say and there we see it on the screen. Now, just as a preliminary matter, is it not
unusual to rely on a lower-resolution, smaller-scale image to see a feature which cannot be seen on
the larger-scale image of the same terrain?
Mr. KONDOLF: As a general rule, one would rely more on the larger -scale image;
however, every aerial image is taken under different lighting conditi ons, with a different sun angle,
so there can be different cameras, different airplane elevations. There are a lot of factors that could
influence whether a feature is visible on one aerial photograph, versus another.
Mr. WORDSWORTH: OK, well, I see tha t as a general response. But you cannot in fact
see the caño that Nicaragua supposedly cleaned in 2010 on that photo, can you?
Mr. KONDOLF: Well, I see a lineation going from the southern tip of Harbor Head Lagoon
to the Río San Juan. I think most people could probably see that.
Mr. WORDSWORTH: So that is what you are saying is the 2010 caño? Is that right?
Going from that delineation from, essentially the southern tip, directly down to the Río San Juan?
Mr. KONDOLF: Well, we see a lineation that is in roughly the same area. So, it may be
that caño.
Mr. WORDSWORTH: But you surely agree, that the same feature is shown in the
1988 map if I could have that back up on the screen and that is marked in a white marking
which I understand is some sort of a sand dune, or the like? And there is nothing whatsoever there,
is there, to suggest that there is a caño? Is there?
Mr. KONDOLF: No, there is no channel mapped, and I do not know how to interpret that
white area, it is rather mysterious. - 42 -
Mr. WORDSWORTH: Well, I mean, it is in the indications, is it not? And the indications
do not for one moment suggest that it is a caño, do they?
Mr. KONDOLF: No, I am not suggesting that the white band is indicative of the caño. No.
Mr. WORDSWORTH: Right, but if we just go back to your 1961 photo that you refer to in
your 2012 report, as very clearly showing the caño; it is simply not there, is it?
Mr. KONDOLF: What is not there?
Mr. WORDSWORTH: The caño, the 2010 caño.
Mr. KONDOLF: There is a l ineation, from the south tip of Harbor Head Lagoon, to the
Río San Juan, that maybe, it follows roughly the course of this caño, that is in dispute, and that
maybe an indication of it.
Mr. WORDSWORTH: Right. In putting together your 2012 report now that you have
looked again at the 1988 map do you recall whether you did have the 1988 map when you were
drafting your report, the 2012 report?
Mr. KONDOLF: I could check and see if I refer to it in here.
Mr. WORDSWORTH: Just your recollection.
Mr. KONDOLF: I do not remember at the moment.
Mr. WORDSWORTH: Right, can I ask you then, a few questions about the 1949 map,
which is the other image, or map, that you refer to in your 2012 report? And, obviously, a great
deal of weight is being placed on th is, by Nicaragua. Can I just ask one question on this, is it
correct to say that this is a large-scale map of Costa Rica, with the scale of 1:400,000?
Mr. KONDOLF: Reading the legend, it appears to have a scale of 1:400,000 and the term
“large-scale” usually refers to among geographers usually refers to a more detailed map.
Mr. WORDSWORTH: That is very helpful, so a small-scale? - 43 -
Mr. KONDOLF: Yes.
Mr. WORDSWORTH: Thank you. And if we look at the maps that are available, that are
closest in date to 1949, then it is correct to say that these do not show the 2010 caño, do they? In
any form?
Mr. KONDOLF: Which maps are you referring to?
Mr. WORDSWORTH: The maps that are closest in date are a 1930 map, which is now on
screen. And you can see there, there is no sign of the so-called caño. It is probably easiest to look
at it on the screen.
Mr. KONDOLF: It is a bit grainy , but I do not see a channel going from the Harbor Head
Lagoon to Río San Juan at the caño location. Yes.
Mr. WORDSWORTH: Thank you. And if we now put on the map closest in date, I think, to
the 1949 map: that is the 1931 map that Professor Pellet showed the Court yesterday do you
agree that there is no caño shown there?
Mr. KONDOLF: I agree. Yes.
Mr. WORDSWORTH: And there are two in terms of the period immediately after
1949 the next maps we come to are two 1:1 million small -scale maps of Nicaragua of 1965 to
1966. They are Annex 122 of Nicaragua’s Counter -Memorial and you can take it from me that
they show no caño, and counsel for Nicaragua will certainly put me right if I am wrong about that.
The next map which shows the area in any detail is the Costa Rican 1970 map which is
rather more usefully a scale of 1:50,000. And that also is compiled based on pho tos taken in 1961
and you will agree that the so-called 2010 caño is not featured on that map, is it?
Mr. KONDOLF: No, it does not appear there.
Mr. WORDSWORTH: And Professor Pellet took the Court yesterday to two 1970 maps of
Nicaragua which are at least 1:1.5 million in scale and again Nicaraguan counsel can take you to - 44 -
those, if they wish, but you can take it from me: those do not show the caño. So, the point I am
putting to you is that there are no other maps or images that you have pointed to t hat show the
2010 caño, other that is, prior to its construction in 2010 in your report or in your summary.
No other maps, no other images.
Mr. KONDOLF: I recall that there were some others, but unfortunately I would have to
refresh my memory.
Mr. WORDSWORTH: Counsel for Nicaragua will certainly take you to them if there are
any. Put simply, if I am correct that that is the totality of the evidence that you are relying on
and it may be that in your report you refer to maps prior to 1897 but I am not taking those as being
relevant, legally relevant, for the purposes of this hearing: so, other than what can or cannot be
deduced from the 1949 map, there is no evidence at all that the caño as excavated by Nicaragua in
2010 had any prior existence, is there?
Mr. KONDOLF: No, we see some evidence on the 1961 photos. We see some kind of
pattern, some kind of lineation that is suggestive. I have to review again the various images to see:
as I recall there are a number of places where you can see that there is, at the south end of Harbor
Head Lagoon, the lines on some of the old maps are shown as open. So there are certainly some
suggestions that there is.
Mr. WORDSWORTH: Do any of these other maps, documents, images, whatever . . . do
they follow the course of the caño, as actually constructed by Nicaragua in 2010, in your view?
Mr. KONDOLF: What you see in the 1961 photographs, that follows at least the portion that
goes from the south part of Harbor Head Lagoon towards the river. And then there is the part of
the caño that continued parallel to the river, which is not as clear.
Mr. WORDSWORTH: Thank you. So it comes down to the 1961 image, in terms of a caño
that follows the course of the 2010 caño. - 45 -
Mr. KONDOLF: Again, I would need to review all these but certainly it seems that the 1961
is the most suggestive that we have discussed, I think.
Mr. WORDSWORTH: Thank you. And just for the sake of clarity, what I have done is
taken you to Section 2.6 of your 2012 Report, where the maps and images that you refer to are the
1949 map and the two 1961 images.
Mr. President, am I running out of time?
At paragraphs 25 to 26 of your summary, you refer to a Ramsar Report of 2014, and if I can
just take you to paragraph 25, you say: “Finally, the existence of caños [plural] connecting the Río
San Juan to Harbor Head Lagoon is supported by Ramsar.” Then you refer to a site visit of
10 to 13 March 2014. Am I correct in thinking that that site visit concerned the caños that were
constructed by Nicaragua in the summer of 2013? Is that correct? Which are further to the west of
the caño constructed in 2010.
Mr. KONDOLF: I believe that is the case, yes.
Mr. WORDSWORTH: Now, if I can take you to the last two bullet points here, which
appear to be the ones you are relying on, you quote: “In and around the area walked and flown over
of the CE [which I presume is Caño Este ], we observed at least four natural caños , most with
convergent flow in the direction of the Caño Este lagoon; one of t hem toward Laguna Portillos
[i.e., Harbor Head Lagoon].” So that is just one out of those four caños that could support the
statement that you’ve made in paragraph 25 of your summary. Is that right?
Mr. KONDOLF: That is correct.
Mr. WORDSWORTH: S o it should read: “ Finally, the existence of a caño [singular]
connecting the Río San Juan to Harbor Head Lagoon is supported by Ramsar.”
Mr. KONDOLF: Yes. I stand corrected. That is correct.
Mr. WORDSWORTH: And, just so as I understand it, you are not suggesting that that caño
has anything to do with the caño that was excavated by Nicaragua in 2010, are you? - 46 -
Mr. KONDOLF: I do not believe the Ramsar Report is specific about where the caños they
observed, where they occurred.
Mr. WORDSWORTH: You think it may be referring to the 2010 caño?
Mr. KONDOLF: I do not know that it is for me to read into their report.
Mr. WORDSWORTH: Is it not? Because if I ask you to turn to page 6 of your report, there
you have got a 26 September 2014 of the caño excavated in 2010.
Mr. KONDOLF: Yes. Good point. Ok.
Mr. WORDSWORTH: Yes at 2014, it is absolutely crystal clear.
Mr. KONDOLF: You are right. They cannot be talking about that one. They have to be
talking about another one.
Le PRESIDENT : Merci Monsieur Wordsworth. Les vingt minutes qui vous étaient allouées
sont à présent expirées. Je vous remercie. Je me tourne vers le conseil du Nicaragua.
Monsieur Reichler, souhaitez- vous procéder à présent à un interrogatoire complémentaire ? Si
c’est le cas, je vous donne la parole.
Mr. REICHLER: We are perfectly content with the answers given, Mr. President. We have
no need for re-examination.
Le PRESIDENT : Merci, Monsieur Reichler.
Monsieur Kondolf, certains juges voudraient vous poser d es questions. Je vais donc leur
donner la parole successivement et je vous demanderai de répondre à chaque question aussitôt
après qu’elle vous aura été posée.
Je donne d’abord la parole à M. le juge Greenwood. - 47 -
Judge GREENWOOD: Thank you very much, Mr. President. Professor Kondolf, I wonder
if you would have another look at the 1949 map? And if one of the teams of counsel could put that
up on the screen, it will assist the members of the public. Do you have the close -up of the Isla
Portillos?
Mr. KONDOLF: Yes, I am looking at the close-up.
Judge GREENWOOD: Right, thank you. Were you here when Professor Thorne testified
earlier this week?
Mr. KONDOLF: Yes.
Judge GREENWOOD: In answer to a question I put to him, he said that he thought this map
did not accurately depict the channels in that area and he gave an explanation of why. Do you
agree with what he said?
Mr. KONDOLF: Well, this is obviously very interpretative, looking at a small -scale map
and as it has been shown. I do not disagr ee with Professor Thorne. His theory may be correct. I
believe he thought that the channel shown from Harbor Head Lagoon to the Río San Juan should
actually connect with what as been called the “Y” channel. That is quite plausible also.
Judge GREENWOOD: Yes, and if that were the case, would the 1949 map then be in
accordance with the details shown on the, I think it is the 1988, map?
Mr. KONDOLF: Yes, it is closer but I should say it is hard to tell from these maps which is
correct but your question is correct, that if Professor Thorne is correct about that channel linking
with the “Y” channel, then that would be in accordance with 1988, yes.
Judge GREENWOOD: In the light of the answers you have just given, do you think either
of these maps can be relied upon as evidence of where any channel may have been located in 1949
or in 1988? - 48 -
Mr. KONDOLF: Yes, I think they can be relied on as evidence but we should bear in mind
that any map is imperfect, it is done for a certain purpose, but I think it is still valuable evidence for
trying to determine the situation.
Judge GREENWOOD: It is just that the two maps contradict each other . . .
Mr. KONDOLF: Yes, unfortunately, yes, but many maps contradict one another, so . . .
Judge GREENWOOD: Right! Thankyou very much. You have obviously tried to navigate
certain parts of Europe using maps like the ones I have in my car.
Would you have a look at paragraph 17 of your summary statement, please? The last two
sentences of that paragraph. You say: “Faster tree growth means the trees are likely not as old as
estimated by Costa Rica. It also means that the forested area will regenerate quickly.” What is
your estimate of how old the trees are?
Mr. KONDOLF: I am not an expert in tropical ecology or forestr y, so I do not feel qualified
to make an estimate. But I believe in my report I did observe that if the higher rates of tree growth
that were recorded for disturbed areas, in other words, where the trees do not have competition
from pre-existing trees and access to water and sunlight, that they were growing about twice as fast
and, if that were the case, then the age you would compute for some of these trees was, instead of
over 200 years, it would be just over 100 years.
Judge GREENWOOD: Right, so how q uickly would the forested area regenerate in your
view?
Mr. KONDOLF: Well, the trees in question that I refer to are some of the larger trees so it
would take decades for those to come back. But smaller trees would probably come back in years.
Again, I am not an expert in this field but, from what I have observed in this kind of environment,
it is very hot, very wet and lots of nutrients. It is a good place for trees to grow quickly.
Judge GREENWOOD: Thank you, Professor Kondolf. Thank you, President. - 49 -
Le PRESIDENT : Merci, Monsieur le juge Greenwood. Merci, Monsieur le professeur. Je
vais donner maintenant la parole au vice- président Yusuf qui souhaite également vous poser une
question.
VICE-PRESIDENT YUSUF: Thank you, Mr. President. Professor Kondolf, if you can turn
to paragraph 19 of your summary statement. On page 10, you refer to the report of
Professor Thorne where it is stated that “no distributaries linked the Río San Juan to the Harbor
Head Lagoon” and you say that this is a “sweeping ” opinion. And then you go on and say: “It is
far more likely in this deltaic environment that different distributaries connecting the River to
Harbor Head came into and then passed out of, existence, in the normal course.” Does that mean
that, in your view, there are no perennial caños in that area?
Mr. KONDOLF: Not necessarily. There could be caños that remained perennial and have
water flowing all year around. But in the bigger picture, we do expect that these channels will fill
up, shift, move around. That is the nature of the delta environment.
VICE-PRESIDENT YUSUF: Thank you.
Le PRESIDENT : Merci. Je donne la parole à Madame la juge Xue.
Judge XUE: Thank you, Mr. President. Professor Kondolf, I have a question for you. In
your written statement submitted on 16 March 2015, you state in paragraph 8 of your report:
“Keeping the Lower San Juan flowing,. . . dredging of the River . . . mitigates . . .problems [for
navigation and existing wetland habitat], maintains water flow, and continues to supply sand to
coastal beaches,” Then you conclude I hope you have already found the place? I quote: “In
this context, dredging is a reasonable management activity to maintain the River’s navigability and
existing environmental conditions.” B y this conclusion, do I understand correctly, your advice is
that dredging activities should be continuously maintained? If so, should the current scale of the
dredging operations be maintained as well? And I notice in the previous questions that the experts
mentioned about capital dredging and maintenance dredging. Relating to this question, I would
like you to further clarify one point in your statement. At paragraph 10 of your written statement, - 50 -
you refer to the “modest scale of the authorized dredgi ng which is confined to restoring within the
existing River a navigation channel 2 m deep, 30 m wide at the upper section, and 20 m wide at the
lower section”. Could you explain at which section of the river this authorized scale should apply?
Does it mean it should apply to the whole entire course, 24 km course of the Lower San Juan
River? If so, does it apply to both seasons, rainy season and dry season? And, to maintain that
navigability of that channel, especially in the dry season, I assume you hav e calculated the water
flow rate at the delta area? I refer to the delta bifurcation with the River Colorado. So have you
calculated that? Thank you.
Mr. KONDOLF: Thank you. I will try to respond, maybe in reverse order since we are
talking about this flow split right now. I have not made my own calculations of the flow split and
the potential effect of dredging on that flow split. I did not do it myself because Professor van
Rhee is an expert in this and he was already coming up with his estimate a nd Professor Thorne,
likewise, did this, so I did not see any need that I would do that myself. I do not disagree with their
calculations: they seem quite reasonable. I am familiar in a general sense with the methods they
used and it seems reasonable.
You asked also about the dimensions of the navigation channel. And just to be clear about
what I understand this means is that the navigation channel would be 2 m deep; at the bottom of
the riverbed, it would be 20 m wide and then as you go up, it would flare out to about 30 m. So it
has a kind of a trapezoidal form excavated into the shallow -bed that existed before the dredging. I
have looked at some of these documents related to the dredging, but I do not recall whether exactly
those same dimensions are supposed to be constructed along the entire length of the Lower Río San
Juan. I assume that in order for the navigation to be continuous, that they would be, but I would
probably need to consult the reports to say that for sure.
You also asked me about the benefit of dredging and whether I would recommend that the
dredging continue. Because of the very high rate of sediment accumulation in the delta and, as
already has been discussed by Professor Thorne, Professor van Rhee, there is this tendency f or the
Lower Río San Juan to fill the sediment and more and more the flow will go into the Colorado.
And so, in order to preserve the current flow pattern or at least slow the loss of flow in the - 51 -
Lower Río San Juan dredging does appear to me reasonabl e management activity, a reasonable
option.
In terms of, I think your question was about whether I would recommend it be maintained at
the current levels. Again, it is not my expertise so much but I would say just in general we could
say that maintaini ng a larger channel and the idea of the dredging is that you are not digging
sediment out of the entire cross section, you are concentrating it in a channel, usually near the
middle, and that having that would allow more flow to down the Río San Juan. So, that could help
to maintain navigability and deliver water to the wetlands downstream.
Judge XUE: Thank you very much, Professor. Actually, my question is: if you maintain
the navigation channel, especially at the end of the Lower San Juan with this channel 2 m high
does it have any effect at the delta region? You really have to increase the flow rate to maintain
that, especially in the dry season. This is something I could not find in the expert’s report. In the
Annex 114, attached to the Counter -Memorial, from Nicaragua, I do see that it is really channel
bed and just now, Professor van Rhee, explained quite clearly in other words, when you say
2 m, you mean the metres of the navigation channel? Or you mean actually from the top, the
surface of the water, to the bottom of the channel, you maintain 2 m? Because this will affect the
water flow. And the river is in the possession of Nicaragua and indeed Costa Rica cannot give me
the specific data. So I wonder, when you designed this channel , have you calculated the effect on
the water flow to that extent? Thank you.
Mr. KONDOLF: I am sorry, I misunderstood your question. Again, this is not work that I
did myself but I believe myself Professor van Rhee did make the calculation that, if yo u were to
create this channel, and my understanding is that the depth would be the depth from the water
surface to the bottom of the channel in the dry season unless it is specified that it is only to be
achieved in the wet season. And yes, especially, if that were to be created from the delta all the
way to the river mouth, that would make a path for much more efficient flow of water and . . . I do
not know if I am still answering your question or not?
Judge XUE: Thank you very much. You have been very clear. - 52 -
Mr. KONDOLF: Thank you.
Judge XUE: Thank you.
Le PRESIDENT : Merci, Monsieur le professeur. La dernière question car je crois que ce
sera la dernière va vous être posée par Monsieur le juge Robinson, auquel je donne la parole.
Judge ROBINSON: Professor, may I invite you to look at paragraph 19 of your report where
you make the point that the river has a higher water surface than the lagoon and also that there is a
slope between the river and the lagoon. And this would suggest that there is likely to be a
distributary channel between the river and the lagoon. I wanted to ask you whether that slope is
clearly visible now? If one looks at that area between the river and the lagoon, would one see the
slope to which you refer? That is the first thing. And I imagine that it is not every slope that would
facilitate flow. Is there a minimum dimension or gradient that a slope would need to have to
facilitate the flow? And thirdly, what is your view as to whether the slope which is now the re was
present 150 years ago?
Mr. KONDOLF: I realize that my text perhaps was not entirely clear. In the previous
sentence I referred to the Río San Juan at high water, overflowing into distributary channels leading
to Harbor Head Lagoon and then, in t he next sentence, I referred to the slope of the river to the
lagoon. The slope I am referring to is the slope that occurs when you have high water in the main
river the river is in flood and so the river level can go up significantly so that the level of the
river is quite a bit higher than Harbor Head Lagoon and the ocean. And so it is this slope from the
higher water during the floods that drives the flow towards Harbor Head Lagoon and, in general,
away from the main river to various distributaries. Does that answer your question?
Judge ROBINSON: I also wanted your view as to whether that slope would have existed
with the same dimensions 150 years ago.
Mr. KONDOLF: Yes. I would say the answer is “yes”, in that for a given flood, or a given
flood water surface in the main river channel you would have similar slopes away from the river
towards the lagoon. The actual path that the water would take would be generally the lower parts
of the landscape what we would call channels or swales so the water flow would tend to be - 53 -
concentrated in these lower places or channels to reach Harbor Head Lagoon or other places. The
river is not just overflowing into Harbor Head Lagoon it is overflowing throughout the delta
during these floods. So there is no r eason to expect that things would be substantively different in
the past.
Judge ROBINSON: Thank you very much.
Le PRESIDENT : Merci, Monsieur Kondolf. Ainsi s’achève votre déposition. Nous tenons
à vous remercier d’avoir bien voulu comparaître devan t la Cour. Vous pouvez à présent quitter la
barre, Monsieur le professeur.
Mr. KONDOLF: Thank you for the opportunity to address you.
Le PRESIDENT : Ainsi s’achève l’audience de ce matin. La Cour se réunira de nouveau cet
après-midi à 15 heures. Je vous remercie. L’audience est levée.
L’audience est levée à 12 h 25.
___________
Audience publique tenue le vendredi 17 avril 2015, à 10 heures, au Palais de la Paix, sous la présidence de M. Abraham, président, dans les affaires relatives à Certaines activités menées par le Nicaragua dans la région frontalière (Costa Rica c. Nicaragua) ; Construction d’une route au Costa Rica le long du fleuve San Juan (Nicaragua c. Costa Rica)