Corrigé
Corrected
CR 2015/13
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2015
Public sitting
held on Friday 24 April 2015, at 3 p.m., at the Peace Palace,
President Abraham presiding,
in the cases concerning Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v. Costa Rica); Certain Activities carried out by Nicaragua
in the Border Area (Costa Rica v. Nicaragua)
____________________
VERBATIM RECORD
____________________
ANNÉE 2015
Audience publique
tenue le vendredi24 avril 2015, à 15 heures, au Palais de la Paix,
sous la présidence de M. Abraham, président,
dans les affaires relatives à Construction d’une route au Costa Rica le long du fleuve San Juan
(Nicaragua c. Costa Rica) ; Certaines activités menées par le Nicaragua
dans la région frontalière (Costa Rica c. Nicaragua)
________________
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 Nicaragua is represented by:
H.E. Mr. Carlos José Argüello Gómez, Ambass ador 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 Institut 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 Nicaragua 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 the
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; - 5 -
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, professeur de droit international à la McGeorge Schoo l 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 Commissio n 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; - 6 -
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.
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; - 7 -
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 Consu lting,
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.
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 étude s 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 ; - 8 -
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 Costa 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. - 9 -
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. - 10 -
Le PRESIDENT : Veuillez vous asseoir. L’audience est ouverte. La Cour se réunit cet
après-midi pour entendre la fin du premier tour de plaidoiries du Costa Rica. Je donne la parole à
Monsieur Wordsworth.
Mr. WORDSWORTH:
T HE ABSENCE OF SIGNIFICANT HARM ON THE SAN JUAN RIVER
1. Mr. President, Members of the Court, I am going to be introducing Costa Rica’s case on
the absence of significant impact caused by construction of the r oad. I want to focus, first, on the
evidence that Nicaragua is relying on in this case, before responding in detail to the claim that
sediment from the r oad is causing significant harm to Nicaragua through deposition in the
Lower San Juan.
2. Dr. Parlett will then be responding on the other area of alle ged significant harm, that is,
harm to aquatic fauna, before looking briefly at the legal instruments in respect of which breach is
alleged. But that will not detain her long. The case on significant harm stands or falls on the
evidence of impact, so that is where I wish to start.
A. The evidence of significant harm that Nicaragua relies on
3. One very important feature of the case on significant harm, as it was put to you on
Tuesday morning, was that the case turns almost exclusively on the em pirical data submitted by
Costa Rica.
4. As to the first limb of Nicaragua’s claim, the Court will recall that the claim that
significant q uantities of sediment from the road is being deposited in the delta area of the
1
Lower San Juan, as presented by my friend Mr. Reichler , turns almost exclusively on assumptions
and calculations made by Dr. Andrews by reference to the reports of Costa Rica, including the
report of the Department of Hydrology at Costa Rica’s ICE Institute (Institute of Electricity). ICE,
which only has access to measurements of flow rate s and sediment content on the Río Colorado,
has sought to extrapolate from those measurements to identify how much flow and sediment comes
1CR 2015/9, pp. 10-23, esp. p. 10, para. 3 (Reichler). - 11 -
into the Colorado, a nd how much goes into the Lower San Juan . It has done its best. And you
have just heard from Professor Thorne as to the uncertainties surrounding its modelling exercise.
The empirically correct figures on where the flow and where the sediment goes are known, or
could be known, by Nicaragua alone. The Court already has firml y on board the point that
Costa Rican agencies or experts have no means of monitoring flow rates or sediment
concentrations in the San Juan River.
5. As to the second limb of Nicaragua’s claim, significant harm to aquatic fauna, the
principal evidence and indeed virtually the only evidence deployed by Mr. Loewenstein in
Nicaragua’s opening 3 was based on Costa Rica’s environmental diagnostic assessment, where
Costa Rican experts measured the impact of sediments from the road on macr oinvertebrates in
4
streams on Costa Rican territory that flow under the road and then into the Río San Juan .
6. Now, we will be coming back to what this evidence in fact shows in the course of what
hopefully will not be too long an afternoon, but the poi nt for now is that it is Nicaragua that is the
Applicant in this case, and it is Nicaragua th at has sovereignty over the San Juan. And yet it is
relying on the empirical data of Costa Rica, and submitting virtually no empirical evidence of its
own.
7. To recap, from Nicaragua, we have:
(a) the three INETER measurements of flow rates and suspended sediment concentrations, taken
5
on dates in 2006, 2011 and 2012 . Only one of those is relevant to the period of construction of
the road, and Dr. Kondolf acc epted, as is self -evident from the INETER document, that this
6
measurement shows no impact so far as concerns sediment coming from the road . Perhaps we
will be receiving more from Nicaragua this evening as a result of the Court’s letter of 21 April,
2See Costa Rican Institute of Electricity (ICE), SBU Projects and Associated Services, Centre for Basic
Engineering Studies, Department of Hydrology, “ Second Report on Hydrology and Sediments for the Costa Rican River
Basins draining to the San Juan River”, Dec. 2014; RCR, Ann. 5.
3
CR 2015/10, pp. 24-28, paras. 3-14 (Loewenstein).
4
See Centro Científico Tropical (C CT) “Environmental Diagnostic Assessment (EDA), Route 1856 Projec
Ecological Component ”, Nov . 2013; CMCR, Ann. 10; and Centro Científico Tropical (CCT) , “Follow-up and
Monitoring Study Route 1856 Project EDA Ecological Component”, Jan. 2015; RCR, Ann. 14.
5
INETER, “Summary of Measurement of liquid and suspended solids content during the years 2006, 2011,
2012”, 26 June 2012, Certain Activities; CMN, Ann. 16.
6CR 2015/8, pp. 49-50 (Kondolf). - 12 -
and Costa Rica is very curious indeed about that. But, for the moment, the measurements on
those three dates are all we have from Nicaraguan agencies. So, then there is;
(b) there are the three sediment concentration samples taken by Dr. Kondolf from a muddy plume
7
following a 15-minute downpour in May 2013 . These did not feature in Nicaragua’s case on
significant harm , as it was put on Tuesday morning , and presumably this was because, as
follows from what Dr. Kondolf said in his report of 6 November 2013, they show no more than
8
that sediment from the road is entering the SanJuan . And,
(c) finally, there is the report of Dr. Rios, who carried out a limited sampling exercise on
9
macroinvertebrates and periphyton on the eight so- called “huge deltas” on the C osta Rican
side of the river 1. She scarcely got a mention in Mr. Loewenstein’s presentation although, if
there were a real case on harm to the San Juan, it is precisely on the evidence of impacts to
aquatic flora and fauna from qualified experts that one would expect a case to be built. And
yet, Dr. Rios was not even called to give live evidence, while Dr. Rios’s conclusions were
pointedly not put to Costa Rica’s expert, Professor Cowx, this morning.
8. And, so far as concerns actual measurements and sampling from Nicaragua, that is it.
Over the period of more than four years since works on the r oad commenced, Nicaragua has
collected, or at least has submitted, virtually no hard data on impacts at all.
9. And it is useful to pause here, and to compare the evidence in the recent prior cases
involving international watercourses the Gabčíkovo-Nagymaros Project case and Pulp Mills
before this Court, and the recent Kishenganga case before a seven -person Court of Arbitration,
including one Member of this Court and two past Members.
11
10. In the Gabčíkovo-Nagymaros Project case , the Applicant submitted extensive evidence
that implementation of the so-called Variant C was causing adverse impacts on river morphology,
7
G. Mathias Kondolf, “ Continued Impacts of Erosion from Rt e. 1856, Costa Rica to the Rio San Juan,
Nicaragua”, 30 Oct. 2013, pp. 11-12. See also, CR/2015/8, p. 40 (Kondolf).
8G. Mathias Kondolf, “ Comments on Costa Rican Submissions of November 2013” , 6 Nov. 2013; CR 2015/8,
p. 40 (Kondolf).
9Written Statement of Professor G. Mathias Kondolf, 16 Mar. 2015, para. 49.
10
Dr Blanca Ríos Touma, “Ecological Impacts of the Route 1856 on the San Juan River, Nicaragua”, July 20;4
RN, Ann. 4.
11
Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7. - 13 -
water quality, agriculture, fisheries and f orestry, and so on . Ample evidence from sampling was
submitted by Hungary, including , for example, evidence of fish mortality said to have resulted
from adverse water quality changes in the Danube as a result of Variant C 13.
11. Similarly, in Pulp Mills, the Court had before it extensive data from Argentina to support
its claim that discharges from the mill at issue had resulted in adverse impacts upon water quality
14
in the River Uruguay .
12. The same applies to the Kishenganga case between Pakistan and India . Pakistan had
carried out various sampling exercises in the river, identifying the precise species of flora and fauna
to the Court of Arbitration, and it submitted expert evidence on how and why there would be fish
mortality and various other forms of adverse impact on a whole range of identified species as a
15
result of the damming of the river .
13. And all that, of course, is entirely as would be expected, and indeed as is needed to make
out a case that a given project risks causing or is likely to cause or is actually causing significant
harm; and this is all the more so where the given project has been in existence for a number of
years; four years, in this case.
14. To recall the passage from the ILC’s Commentary that Professor Kohen took you to
16
yesterday , to be significant:
“The harm must lead to a real detrimental effect on matters such as, for
example, human health, industry, property, environment or agriculture in other States.
Such detrimental effects must be susceptible of being measured by factual and
objective standards.” 17
15. And yet there are no such measurements in this case. In marked contrast to the past
cases, we have just the one INETER measurement that does not show any impact, we have the
three muddy plume samples of Dr. Kondolf that do not show any impact and that Nicaragua
12
See e.g., Gabčíkovo-Nagymaros Project, Reply of the Republic of Hungary, pp. 90-99, paras. 2.50-2.74.
1Gabčíkovo-Nagymaros Project, Reply of the Republic of Hungary, p. 92, para. 2.55.
1Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I), pp. 90 et seq .,
paras. 228 et seq.
15
Indus Waters Kishenganga Arbitration (Pakistan v. India), Final Award, 20 Dec. 2013, paras . 54-70, and
97-104.
16
CR 2015/11, pp. 46-47, para. 27 (Kohen).
1ILC, Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities , Commentary to
Art. 2, para. (4); Yearbook of the International Law Commission (YILC) , 2001, Vol. II (2), p. 152. - 14 -
apparently does not rely on, and we have the study of Dr. Rios on the carefully selected, so -called
“huge deltas” which also seem to have fallen away from Nicaragua’s case.
16. Now, in the course of Nicaragua’s opening, there were various suggestions that data on
actual impact cou ld not fill the evidentiary gap because of variability in the r iver flow or
because of the absence of baseline data. You will recall there was a series of questions put to
Professor Thorne on that this morning 18. But such suggestions are both counter -intuitive as a
general matter and, more specifically, inconsistent with the evidence and the past position s of
Nicaragua.
17. Dr. Kondolf, in criticizing Costa Rica’s req uest to Nicaragua of 6 February 2013 to be
19
allowed to conduct some sampling in the Rio San Juan , explained in cross-examination what he
considered a proper sampling exercise would look like and we put this in tab 2 of your judges’
folder, it may even appear on the screen and reading from approximately halfway down, one
sees:
“Mr. KONDOLF: What you have to do instead and this is very well spelled
out in procedures developed by the United States Geological Survey and adopted,
really, worldwide you have to do what is called a depth integrated sample across
the channel, so you measure at multiple verticals the entire water column, and you
collect a sample from across the river, because there are huge differences in suspended
sediment concentrations from t he top of the water column to the bottom. And it can
be across the river as well. And then, you take that sample, which could be for a
river like the Río San Juan a dozen bottles or something, and then you analyse
those to come up with your actual flow, your actual sediment flow.
Mr. WORDSWORTH: That is very helpful. So, you would have a way of
getting reliable information in terms of impact on sediment load?
Mr. KONDOLF: Right, and from what I understand of your reading the
Nicaraguan response, they did not specify exactly how it would be done but,
presumably, if it were a joint study, that the experts on the two sides would design to
do it correctly.
Mr. WORDSWORTH: Yes. But the point I am interested in, you have just
said that there is a sort of sediment sampling that can usefully be done, you have just
referred to some United States reference. That is correct, is it not?
20
Mr. KONDOLF: That is right.”
18
CR 2015/12, pp. 30-33 (Thorne and Reichler).
1Note from the Minister for Foreign Affairs and Worship of Costa Rica to the Minister for Foreign Affairs of
Nicaragua, ref. DMAM-063-13, 6 Feb. 2013; CMCR, Ann. 46.
20
CR 2015/8, pp. 46-47 (Kondolf and Wordsworth). - 15 -
18. So, it could be done , and we say that it should have been done and that would a lso
follow from what was said by Professor Thorne on this matter this morning ; but the simple point
is that it hasnot been done.
19. Now, as so far as concerns the correspondence on joint sampling, one sees that in the
event the Parties could not agree on a joint approach, not least because Nicaragua was insisting on
the cessation of works on the r oad as a precondit ion. But that is irrelevant for present purposes.
The point is that Nicaragua, acting alone on its river, did have a means of getting reliable data on
impact on sediment load, and it has elected not to do this. Instead, it has elected to put forward a
case on the basis of virtually no empirical evidence.
20. We have included the correspondence relevant to the proposed joint sampling exercise at
22
tab 3 of your f older , and we invite the Court to go through that in due course. For present
purposes, it is sufficient to go to Nicaragua’s letter of 30 August 2013 23 which you will see at
tab 4; I note that tab 4 is page 51 of the current judges’ folder and if I could ask you to turn to
Nicaragua’s letter, page 52, and then pick it up on page 53 in tab 4, halfway down the page. For
present purposes, it is sufficient to see what Nicaragua was saying there, responding to
Costa Rica’s proposal that there be a twice monthly sampling of suspended sediment content in the
river at six locations, with further sampling points after the bifurcation between the Lower San Juan
24
and the R ío Colorado . So, Nicaragua’s response to that proposal: “Costa Rica distorts
Nicaragua’s position by alleging that Nicaragua has proposed ‘that sampling of the River take place
21
CR 2015/12, p. 33 (Thorne and Reichler).
22
Letter from the Co -Agent of Costa Rica to the Registrar of the I nternational Court of Justice,
ref. ECRPB-013-2013, 7 Mar. 2013; CMCR, Ann. 49; letter from the Co -Agent of Costa Rica to the Registrar of the
International Court of Justice, r ef. ECRPB-26-13, 24 May 2013; CMCR, Ann. 52; letter from the Co -Agent of Costa
Rica to the Registrar of the International Court of Justice, rECRPB-31-13, 13 June 2013; CMCR, Ann. 53; letter
from the Agent of Nicaragua to the Reg istrar of the I nternational Court of Justice, r ef. HOL-EMB-108, 14 June 2013;
CMCR, Ann. 54; letter from the Co -Agent of Costa Rica to the Registrar of the I nternational Court of Justice,
ref. ECRPB-036-13, 24 June 2013; CMCR, Ann. 55; letter from the Co -Agent of Costa Rica to the Registrar of the
International Court of Justice, r ef. ECRPB-052-13, 7 Aug . 2013; CM CR, Ann. 59; letter from the Registrar of the
International Court of Justi ce to the Agent of Costa Rica, r ef. 142331, 8 Aug. 2013; CMCR, Ann. 60; letter from the
Agent of Nicaragua to the Registrar of the I nternational Court of Justice, r ef. HOL-EMB-167, 30 Aug. 2013; CMCR,
Ann. 64; letter from the Co -Agent of Costa Rica to the Registrar of the International Court of Justice,
ref. ECRPB-63-2013, 27 Sep. 2013; CMCR, Ann. 65, judges’ folder, tab 3.
23Letter from the Agent of Nicaragua to the Registrar of the I nternational Court of Justice, r ef. HOL-EMB-167,
30 Aug. 2013; CMCR, Ann. 64, judges’ folder, tab 4.
24See letter from the Co -Agent of C osta Rica to the Registrar of the International Court of Justice,
ref. ECRPB-013-2013, 7 Mar. 2013; CMCR, Ann. 49; and letter from the Co-Agent of Costa Rica to the Registrar of the
International Court of Justice, ref. ECRPB-036-13, 24 June 2013; CMCR, Ann. 55, judges’ folder, tab 3. - 16 -
only after heavy rainfall and only where plumes of sediment seem to be coming from the southern
bank’. As Nicaragua explained in its 14 June letter, sampling after rainfall events and in runoff
plumes is necessary to measure the true impact of the road on the R iver and must therefore be
included as part of a larger joint sampling protocol . Costa Rica’s proposal that ‘ sampling of the
waters of the San Juan River be taken twice a month ’ does not ensure sampling immediately after
rainstorms or that plumes of sediment runoff from the road will be considered. It is the view of
Nicaragua’s technical experts that this would not ‘permit sufficient data to be collected, to assess
the situation of the river’.”25
21. And if you turn over the page in this letter, you will see in the first full paragraph that
although Nicaragua was saying that it continues to favour joint monitoring of the river to determine
the impacts of the road construction project, it was also saying as it has stated previously it
considers a joint study to be feasible only if Costa Rica halts any further road construction activities
26
pending the completion of the study .
22. In due course the Court can, but need not, judge for itself whether that was a reasonable
pre-condition. The critical point is that Nicaragua had identified the measurements that it thought
were appropriate regular sampling plus sampling immediately after rainstorms and the like
and yet it has elected not to go ahead with that sampling.
23. The obvious inference is that Nicaragua came to the view that no amount of sampling,
however close to the banks of the r iver, however close to the road, was going to show significant
harm in terms of sediment concentration levels. And that is an inference that can safely be drawn
by this Court in light of the absence of any other evidence of significant harm, such as harm to
aquatic species in the river.
24. In any ev ent, the basic point is that Nicaragua has made a claim on significant harm
without the sampling and other data needed to back it up, and it follows that its claim must
inevitably fail. Likewise, it has not put in any data that might support a case on ris k of significant
harm.
2Letter from the Agent of Nicaragua to the Registrar of the International Court of Justice ,
ref. HOL-EMB-167, 30 Aug. 2013; CMCR, Ann. 64, Judge’s folders, tab. 4.
2Ibid. - 17 -
25. I should also add that there is no need in this case for data from many years past to form
a baseline . The relevant baseline would be provided by the series of measurements just upstream
of the seriously eroding sites identifi ed by Dr. Kondolf. The impact, relative to that baseline,
would be identified by a series of measurements just below those sites, at such locations that
Nicaragua might have chosen.
26. And Dr. Kondolf’s evidence on the value of sampling, and Nicaragua’ s position in
correspondence on the value of sampling, is consistent with the evidence just heard from
Professor Thorne this morning, in cross -examination, and it is consistent also with the view s of
Ramsar: you will recall the report of April 2011 that N icaragua did not see fit to annex to its
28
pleadings either in this case or in the Certain Activities case, despite its manifest relevance .
27. The passage I have in mind on monthly monitoring of sediment is at paragraph 3 ( b) of
the recommendations: we put it in at tab 5 of the judge’s folder; and that, in fact, is at page 59 of
the judge’s folder the small number in the middle of the bottom of the page. There you see the
recommendation: “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 so on, and you see at ( b): “Monthly
monitoring of the concentration of suspended solids in w ater column in representative sections
29
along the main course of the San Juan River.” Of course, t his is with respect to Nicaragua’s
dredging activities, but the basic principle that monitoring is a means of showing impacts obviously
applies to any anthropogenic impacts on the r iver. It may be that more than monthly monitoring
would have been appropriate and of course, Costa Rica was saying: “Let’s have bi -monthly
monitoring.” Nicaragua would say we want to have monitoring by reference to what happens in
specific places after rain fall heavy rain fall and the like. The key point is: it was up to
Nicaragua to develop the monitoring programme that it thought was suitable and that would
27
Cf. CR 2015/9, pp. 33-35 (Andrews), in response to a question from Judge Bhandari .
28“Ramsar Advisory Mission Report No. 72”, 18 Apr. 2011 (extract, English translation), p. 47, annexed to letter
from Costa Rica to the ICJ, ref . ECPRB-062-2015, 17 Apr. 2015; Costa Rica’s judges’ folder for cross-examination of
Professor G. Mathias Kondolf and Professor Edmund D. Andrews, 20 Apr. 2015, tab 2; judges’ folder, tab 5.
29Ibid. - 18 -
provide evidence of actual impact before this Court. Nothing has stopped it from doing that. All
the evidence points to the value of that and yet it has not done it.
B. The evidence of significant harm to the Lower San Juan
28. I turn then to the details of Nicaragua’s case that sediment from the r oad is causing
significant harm to Nicaragua through being deposited in the Lower San Juan, which appears
ultimately to come down to a claim of significant harm to navigation.
29. The Court will recall that there were two limbs to this argument: first that the amounts
being deposited in the delta area are higher in magnitude than Costa Rica allows for; and secondly
it says, more than once, that context is everything the claim here being that the Lower San Juan
is already overloaded by sediment, and that any additional ton of sediment coming from the r oad
causes significant harm because it adds to the sediment that Nicaragua is allegedly having to
dredge 3.
30. I deal with these two limbs in turn.
(i) Evidence of sediment from the road (if any) being deposited in theLower San Juan
31. As to the quantity of sediment from the r oad depositing in the area of the Lower
San Juan, that is the first 5 to 6 km, the Court has from this morning heard the evidence of
Professor Thorne.
32. There are two points here.
33. First, although notably no questions were put to Professor Thorne on this, Nicaragua’s
experts are dramatically overestimating the quantity of sediment coming from the road into the
San Juan.
34. The great majority of Nicaragua’s estimate of erosion comes fro m Dr. Kondolf’s
31
“17 areas of Severely Eroding Sites” . He took the entire disturbed area of those sites, which he
estimated to be 788,000 sq m, then subtracted a 10-m-wide roadbed, to which he applied a roadbed
3CR 2015/10, p. 15, para. 14 (Reichler).
3“The Road”, Written Statement of Professor G . Mathias Kondolf, 16 Mar . 2015, p. 8, table 1, line 1; see also
G. Mathias Kondolf, “ Erosion and Sediment Delivery to the Rio San Juan from Route 18, July 2014; RN, Ann. 1,
p. 62. - 19 -
32 33
erosion rate . He was left with 612,000 sq m : : you may recall that is the figure that I referred
Dr. Kondolf to in cross-examination. To the entirety of that 612,000 sq m, Nicaragua applies slope
erosion rates. T o 40 per cent of the area, it applies an erosion rate of 0.558 m per year; for
34
60 per cent, it applies a much lower rate of hillslope surface erosion, of 0.03- 0.06 m per year .
Professor Kondolf confirmed in re -examination that all of the disturbed area, other than the
35
roadbed, was treated as constituting slopes .
35. And this matters because, in reality only 261,000 sq m of the “Severely Eroding Sites”
that are made up of slopes. Costa Rica’s experts know this because they have walked the length of
the road, identifying and actually measuring the slopes, including with a hand-held electronic range
finder 36. The rest are flat areas where there has been some disturbance, including because materials
were stored there or undergrowth was cleared for access and other necessities of construction.
Professor Kondolf accepted that if he ha d overestimated slopes then “that would be a source of
37
error” . In fact, there has been such an overestimate of slopes, and this results in an overall
overestimation of erosion from Dr. Kondolf’s severely eroding sites by a factor of about 2.5.
36. And that of course is the most significant factor in Nicaragua’s overestimation of erosion
from the r oad, but there are others, and we refer you to the evidence attached to Costa Rica’s
Rejoinder. As an example, Nicaragua’s estimate includes erosion from 332 km of “access roads”
38
to the r oad , without establishing how or to what (if any) extent such access roads some of
which are up to 50 km away from the San Juan River 39 are somehow contributing to the river.
32
CR 2015/8, p. 65 (Kondolf); see also “ The Road”, Written Statement of Professor G . Mathias Kondolf,
16 Mar. 2015, para. 14; see also p. 8, table 1, line 2.
33
CR 2015/8, p. 65 (Wordsworth).
34
“The Road”, Written Statement of Professor G. Mathias Kondolf, 16 Mar. 2015, paras. 14-15.
3CR 2015/9, p. 13 (Kondolf).
3See Professor Colin Thorne, “ Assessment of the Impact of the Construction of the Border Road in Costa Rica
on the San Juan River: Reply Report”, Feb. 2015; RCR, App. A, para. 4.23, pp. 26-27; A. Mende, “Inventory of Slopes
and Water Courses related to the Border Road No 1856 between Mojón II and Delta Costa Rica: Second Report ”,
Dec. 2014; RCR, Ann. 3, pp. 77-78.
3CR 2015/8, p. 67 (Kondolf).
3“The Road ”, Written Statement of Professor G . Mathias Kondolf, 16 March 2015, para . 21; see also
G. Mathias Kondolf, “Erosion and Sediment Delivery to the Rio San Juan from Route 1856” , July 2014 ; RN, Ann. 1,
p. 61.
3As indicated on CMCR, sketch-map 4, p. 46; for example, the access road leading to Puerto Viejo de Sarapiquí
is further than 50 km from the San Juan River. - 20 -
37. Secondly, there is the quite separate poin t that there is no evidence that coarse sediment
from the road is in fact reaching the Lower San Juan in the quantities that Nicaragua alleges. As
follows from what Professor Thorne said this morning, coarse sediment from the r oad is likely to
40
be aggrading in higher stretches of the r iver, in what he called “response reaches” and shoals .
That is entirely as would be expected given that the delta area is approximately 60 km downstream
of the reach where one finds the bulk of Dr. Kondolf’s seriously eroding sites.
38. The Court will also recall that, even if one were to take Nicaragua’s figures on the
sediment coming from the r oad, and the sediment that is being deposited in the Lower San Juan,
one only gets a tiny fraction of what is in fact being dredged by Nicaragua in the delta area: one
gets the figure of 0.5 to 2 per cent by reference to the quantities of sediment calculated, on various
41
assumptions, at page 28 of Dr. Andrews’ July 2014 r eport , and those quantities , I should add,
were not updated in his Summary of March 2015.
39. Now, Mr. Reichler has had a go at making this fraction look higher by upping the
amount of sediment from the r oad that is said to be deposited in the Lower San Juan, and by only
taking the amounts dredged by Nicaragua in the delta area for 2014, which is half of what was
dredged in 2013 42. And by this means, he said that the correct figure for the percentage of what
43
was dredged was 8.5 per cent , not the 0.5 to 2 per cent that one gets from reading Nicaragua’s
expert reports.
40. I was also taken to task for not putting to Dr. Andrews his “more recent evidence, based
on ICE’s updated calculations” 44, which in fact was a reference to his oral evidence, where
Dr. Andrews was saying that ICE, in its latest figures, is estimat ing that 20 per cent of the
40
CR 2015/12, pp. 39-41, 41-45 (Thorne and Reichler), p. 49 (Thorne and Wordsworth).
41
Taking the range of 1,390 cubic metres to 2,700 cubic metres for relatively coarse sediment being transported
into the Lower San Juan from the road in Professor Edmund D . Andrews, “An Evaluation of the Methods, Calculati ons,
and Conclusions Provided by Costa Rica regarding the Yield and Transport of Sediment in the Río San Juan Basin” ,
25 July2014; RN, Ann. 3, p. 28, and using the figures for the annual amounts dredged for 2012- 2014 in “Project 262-09:
Improvement of N avigation in the San Juan de Nicaragua River: Physical-Financial Progress Report Corresponding to
2014”, EPN 2014 Annual Report, 2015, p. 20, Ann. 1 to letter from Nicaragua to the ICJ, ref. HOL-EMB-0035,
9 Mar. 2015.
42
See “Project 262-09: Improvement of Navigation in the San Juan de Nicaragua River: Physical -Financial
Progress Report Corresponding to 2014”, EPN 2014 Annual Report, 2015, p. 20, Ann. 1 to letter from Nicaragua to the
ICJ, ref. HOL-EMB-0035, 9 Mar. 2015.
43
CR 2015/10, p. 13, para. 15 (Reichler).
44Ibid., p. 23, para. 41 (Reichler). - 21 -
San Juan’s bed load and 16 per cent of the suspended sediment load goes into the Lower San Juan,
45
not 10 per cent as before .
41. While there is something slightly surreal about Nicaragua’s experts suddenly adopting
ICE estimates in a situation where Nicaragua could readily be providing the hard data that
would show the actual division of flow and sediment between the Lower San Juan and the
Río Colorado this does not in any event make any material difference. We understand t hat a
recalculation from Dr. Andrews would lead to the 7,600 ton figure that Mr. Reichler referre d to on
46
Tuesday , that is 4,550 cubic metres. That is still a tiny fraction of what is being dredged by
Nicaragua in the delta area.
42. How, then, does Mr. Reichler get from the 7,600 ton figure to his 22,000 ton figure,
which is said to represent “approximately 8.5 per cent of the amount of sediment that Nicaragua
47
has been required, and able, to dredge in the past year” ?
43. There are two aspects to this. First, Nicaragua ignores the dredging of the preceding
year, as to which the 22,000 ton figure would have given a percentage of total dredging of around
4 per cent. But, secondly, and more importantly, this new 22,000 ton figure includes the suspended
sediment from the road that is said to reach the Lower San Juan, with the suggestion being that this
48
forms part of the material that Nicaragua is dredging in the delta area of the Lower San Juan .
44. That, however, is inconsistent with all the evidence. Nicaragua is dredging only in the
49
first 6 km of the Lower San Juan . Dr. Andrews says that the suspended sediment will remain
suspended until the fresh river water begins to mix with the salty ocean water, which he takes as
50
the last 6 km of the Lower San Juan 25 km or so down towards the Caribbean Sea . There is
no suggestion in Nicaragua’s evidence that it has been dredging a navigation channel in that lower
45CR 2015/9, p . 27 (Andrews) . See Costa Rican Institute of Electricity (ICE), SBU Projects and Associated
Services, Centre for Basic Engineering Studies, Department of Hydrology, Second Report on Hydrology and Sed iments
for the Costa Rican River Basins draining to the San Juan River, Dec. 2014, RCR, Ann. 5, pp. 28-30.
46CR 2015/10, p. 13, para. 14 (Reichler).
47CR 2015/10, p. 13, para. 15 (Reichler).
48
Ibid., p. 13, para. 15 (Reichler).
49See “Project 262-09: Improvement of Navigation in the San Ju an de Nicaragua River: Physical -Financial
Progress Report Corresponding to 2014”, EPN 2014 Annual Report , 2015, pp. 20 and 36 -41; Ann. 1 to l etter from
Nicaragua to the ICJ, ref. HOL-EMB-0035, 9 Mar. 2015.
50The Road, Written Statement of Professor Edmund D. Andrews, 15 Mar. 2015, para. 27. - 22 -
section in the years since the construction of the r oad commenced, save, of course, when it comes
to dredging caños on Costa Rican territory. It follows that there is no basis at all for the new
assertion that the amount of sediment coming from the r oad that is allegedly being dredged can be
trebled by reference to the suspended sediment.
45. And, even if we were to take as correct Mr. Reichler’s figure of 7,600 tons of c oarse
sediment coming from the road and allegedly being dredged by Nicaragua in the Lower San Juan,
we are left with the following comparison.
46. For 2012, the dredging was 176,918.90 cubic metres, as to which the percentage figure
of sediment from the r oad would be 2.57 per cent. The dredging was much higher in 2013,
304,490.84 cubic metres, so the percentage would be 1.49 per cent. And then, in 2014, less
51
dredging, so the percentage is 2.88 per cent .
(ii) Alleged significance of the amount said to be dredged
47. Against this backdrop, I move on to Nicaragua’s case on significance and there are four
obvious points. First, despite the repeated if notably defensive refrain th at magnitude is not to be
confused with significance, the fact that, even on Nicaragua’s best case, the sediment deposited is
only a tiny fraction of that which is dredged, speaks for itself.
48. The same applies to the broader, and the all -the-more relevant point, that the sediment
coming from the r oad represents only a tiny fraction of the total annual sediment load of the
Río San Juan. On Costa Rica’s figures, it is 0.6 per cent; on Nicaragua’s, it is in the range
1-2 per cent 5.
49. Secondly, it is not as if that tiny fraction takes on a particular significance because this is
a tipping point case. That was confirmed by Dr. Andrews in cross-examination. You may recall
the question: “Right. You are not suggesting, are you, that the extra 0.5 per cent or 2 per cent, that
51Comparison of Nicaragua's Estimate of Amount of Sediment from Road and Amount Dredged 2012- 2014,
judges’ folder, tab 6.
52
RCR, paras. 2.64-2.65, referring to Professor Colin Thorne, Assessment of the Impact of the Construction of the
Border Road in Costa Rica on the San Juan River: Reply Report, Feb. 2015; RCR, App. A, paras. 4.93 and 4.94, p. 62;
see also The Road , Written Statement of Professor Colin Thorne, Ma. 2015, paras. 3.21 (c) and 3.23 and The Road,
Written Statement of Professor G. Mathias Kondolf, 16 Mar. 2015, para. 22 and table, p. 8. - 23 -
you say comes from the road, creates a sort of tipping point? That somehow this is the straw that
breaks the camel’s back, are you?” Answer: “No.” 53
50. Thirdly, this is not a case where a claimant can point to an absolute stand ard that is being
breached, even though only a relatively small quantity of material is being added to a given
waterbody. As to this, the various references that Mr. Reichler made to United States and
European standards on pollution are obviously inapposi te54, and likewise his reference to the
55
phosphorous limits that the Court was examining in the Pulp Mills case . There is no relevant
standard that Nicaragua can here point to.
51. Take the United States Clean Water Act régime that Mr. Reichler referred you to 56. This
is dependent on the relevant authority setting a total maximum daily load of sediment for a given
listed waterbody, which can be a reach of a given river, and not the river as a whole 57. Nicaragua
has not done that for the Rí o San Juan, or any reach of the river, whether upstream or downstream
of the delta.
(a) In short, we have no idea what that total maximum daily load would be, and in this respect it is
to be recalled that sediment is a “vital natural component of waterbodies and the uses they
support”, that is a quote from the U nited States Environmental Protection Agency (EPA)
58
Protocol that Nicaragua referred to on Tuesday . And you may recall that Professor Cowx
said something to similar effect this morning in response to a question fr om Judge Bhandari,
59
when he focused on the nutrients that are contained in sediment . Now, t he EPA document
also notes that “sediments can impair designated uses” 60, but we have no idea where the
53
CR 2015/9, p. 32 (Wordsworth; Andrews).
54CR 2015/10, p. 19, paras. 29-30 (Reichler).
55Ibid., pp. 20-21, paras. 31-34 (Reichler).
56
Ibid., p. 19, para. 29 (Reichler).
57
United States Environmental Protection Agency (EPA), “Protocol for Developing Sediment TMDLs”,
Oct. 1999, pp. 3-4, available at http://www.epa.gov/owow/tmdl/sediment/pdf/sediment.pdf, referred to at CR 2015/10,
p. 19, para. 29 (Reichler).
58
CR 2015/10, p. 19, fn. 45 (Reichler).
59CR 2015/12, p. 19 (Cowx).
60United States Environmental Protection Agency (EPA), “Protocol for Developing Sediment TMDLs”,
Oct. 1999, p. 2-1, available at http://www.epa.gov/owow/tmdl/sediment/pdf/sediment.pdf. - 24 -
sediment balance would correctly be struck in the current case if the United States methodology
were to be applied.
(b) We likewise can have no idea whethe r any sediment coming from the r oad would be in excess
of any hypothetical total maximum daily load. For, not only has Nicaragua not set the relevant
standards, it has not carried out the relevant measurements.
52. And there are indeed, as Nicaragua says, European Union environmental quality
standards that identify different pollutants and the level of concentration that must not be exceeded
for a given pollutant 61. But quite why these are relevant to the current case, is less than clear. They
tell one nothing whatsoever about whether sediment from the road could correctly be regarded as a
pollutant, as Nicaragua implies, without one single sample to back up its case. The same applies so
far as concerns Nicaragua’s reference to the phosphorous limit in the Pulp Mills case.
53. Finally, the case on significance takes no account of the natural variability in the flow
rate and sediment content of the river. Because of this variability, which is accepted and referred to
by all the experts 62, the total amount of sediment that will in fact enter the Lower San Juan will
vary very substantially from year to year. In the context of that natural variability in sediment load,
the small quantities of coarse sediment that may reach the Lower San Juan from the road are once
again precisely insignificant.
54. And these four points dispose of the case on significance. The Court is concerned with ,
at most, a tiny fraction of the natural sediment load, in a context of high natural variability, where it
is not said that there is a tipping point, and where there is no relevant standard that is said to be
breached.
61See the Water Framework Directive, Directive 2000/60/EC of the European Parliament and of the Council
establishing a framework for Community action in the field of water policy, OJ L 327, 22/12/2000, p. 1; Directive
2008/105/EC of the European Parliament and of the Council of 16 December 2008 on environmental quality standards in
the field of water policy, amending and subsequently repealing Council Directives 82/176/EEC, 83/513/EEC,
84/156/EEC, 84/491/EEC, 86/280/EEC and amending Directive 2000/60/EC of the European Parliament and of the
Council, OJ L 348, 24/12/2008, p. 84; and Directive 2013/39/EU of the European Parliament and of the Council of
12 Aug. 2013 amending Di rectives 2000/60/EC and 2008/105/EC as regards priority substances in the field of water
policy, OJ L 226, 24/8/2013, p. 1, referred to at CR 2015/10, pp. 19-20, fns. 46-47 (Reichler).
62E.g., The Road, Written Statement of Professor Colin Thorne, Mar . 2015, para . 3.20 and
ProfessorColin Thorne, Assessment of the Impact of the Construction of the Border Roa d in Costa Rica on the
San Juan River: Reply Report , Feb. 2015; RCR App. A, para. 4.125 referring to Professor Allan Astorga Gättgens,
Extraordinary sediment inputs due to exceptional events on the San Juan River , Dec. 2014; RCR, Ann. 10; CR 2015/9,
p. 30 (Andrews); CR 2015/8, p. 41 (Kondolf); CR 2015/12, pp. 30-33 (Thorne). - 25 -
55. In addition, as to Nicaragua’s “it all depends on the conte xt” argument, we note that this
is predicated on a false premise, which is that sediment from the road is having to be dredged from
what is said to be an already over-sedimented river . 63
56. There are two points to note. First, the case on significance is predicated on there being a
need to dredge the quantities that Nicaragua is in fact dredging. That was the thrust of
Mr. Reichler’s propositions 5, 6 and 7, which were portrayed as common ground between the
experts 64. But of course, they are not, that wa s scarcely a fair portrayal of Professor Thorne’s
evidence, which is that the current dredging programme is “having the effect of lowering the bed
slope and consequently robbing the Lower R ío San Juan of some of the very small amount of
65
transport capacity it has” . And that was his evidence in oral evidence last week. And, you have
just heard him further on the subject of Nicaragua’s dredging programme current dredging
66
programme . The correct position is that the current dredging programme is not a nec essity; it is
making the situation worse. If anything is needed, it is a new programme, arrived at following
notification, EIA and consultation. This is a point we will be return ing to on Tuesday of next
week in the second round in the Certain Activities case.
57. Secondly, the case on significance is also predicated on the proposition that sediment
comes from the road and is deposited along sandbars in the delta area that is being dredged by
Nicaragua 67. In so far as there is evidence for that, it i s all based on the assumption that coarse
sediment from the road is reaching the delta area in measurable quantities, as to which there is no
empirical support.
58. The answer, we were told on Tuesday, is to look at Professor Thorne’s views, the
reference being to his 2011 report in Certain Activities 68, of course made before the construction of
63
CR 2015/10, p. 23, para. 42 (Reichler).
64Ibid., p. 12, paras. 10-11 (Reichler).
65CR 2015/3, p. 43 (Thorne), and see also Certain Activities, Written Statement of Professor Colin Thorne,
Mar. 2015, para. 4.16.
66
CR 2015/12, pp. 45-46 (Thorne and Reichler) , pp. 50-51 (Thorne and Wordsworth), pp. 51-53 (Thorne and
Tomka).
67
CR 2015/10, p. 17, para. 23 (Reichler).
68Ibid. - 26 -
the road had even commenced. Unsurprisingly, he does not there give evidence as to where
sediment from the road may or may not be deposited.
59. Given that half a sentence from the passage at issue of Professor Thorne’s 2011 report
was referred to not once but four times in Mr. Reichler’s speech, it may be useful for the Court to
see what Professor Thorne was in fact saying, in its correct context and we have included this at
tab 7 of the judges’ folder. And, if I can ask you to turn to page 63 of the judges’ folder, and you
will also see up on the screen, the relevant passage.
60. Now, my friend Mr. Reichler read part of the top paragraph here, in his
69
cross-examination of Professor Thorne this morning . So I will just continue where he left off.
Professor Thorne continued, having talked about the deposition in the Lower San Juan,
“This too is entirely natural and results from the location of the Río San Juan
branch north of the Hess-Santa Elena fault, in an area characterized by relatively high
relief and an uplifting tendency. It follows from this assessment that sediment
accumulation in the Río San Juan downstream of the delta is not caused by excessiv e
concentrations of sediment in the San Carlos and Sarapiquí, or indeed any of the
Costa Rican tributaries, but is the consequence of natural geological controls in the
neotectonic influences. The scale and power of the natural phenomena responsible for
conditioning fluvial processes and controlling morphological evolution in the
Río San Juan and Río Colorado are such that attempting to reverse their effects is
likely to be futile. The geology in neotectonics of the region will continue affecting
this deltaic system for centuries, with or without the dredging.” 70
61. Now, o f course this cannot be taken as suggesting that sediment from the road is
impacting in any significant way on the delta area: quite the opposite. And, the Court will also
recall the position at the delta as at 2008, that is long before construction of the road, as portrayed
in paragraph 6 of the summary of Professor Van Rhee’s evidence: that is, a sediment problem for
71
navigation in the dry season, that was predicted to get worse .
62. In short, there is a long- term phenomenon of deposition that has nothing whatsoever to
do with the road. That, of itself, shows that any sediment coming from the road is not significant.
It is having no long- term impacts, and it is not impacting in any material way on the long -term
69
CR 2015/12, p. 39 (Reichler).
70Professor Colin Thorne, “ Assessment of the physical impact of works carried out by Nicaragua since
October 2010 on the geomorphology, hydrology and sediment dynamics of the San Juan River and the environmental
impacts on Costa Rican territory”, Certain Activities; MCR, App. 1, p. II-27; judges’ folder, tab 7, p.63.
71
Certain Activities, Written Statement of Professor Cornelis Van Rhee, 15 Mar.2015, para. 6. - 27 -
phenomenon of sediment deposition in the Lower San Juan. And indeed, Nicaragua does not
suggest otherwise.
63. And, if coarse sediment from the r oad is currently reaching the delta area, then it may
well be that it is set tling in the channel that Nicaragua has been dredging, which is causing an
unnatural, lower velocity reach in which sediment is being deposited in very large quantities. But
even if that could be established by Nicaragua, it would tell one nothing about w hether any
sediment from the road which is of course a tiny fraction of the sediment anyway flowing into
the delta area might conceivably have had any impact on navigation if it had been allowed to
settle naturally.
64. I should finally note that it is incorrect to portray the Lower San Juan as an
“over-sedimented river” 72 again, Professor Thorne gave evidence on this matter this morning 73.
It is a river with a high sediment load that is evolving in a certain direction as a result of natural
phenomena 74. And the assertion that we heard on Tuesday from Nicaragua, that the dredging of
sand deposited in the delta area is helpful to the wetlands downstream merely depends on taking
completely out of context the views of Professor Thorne 7.
65. Mr. President, that concludes my remarks, and I ask you to hand the floor to Dr. Parlett,
to continue with our submissions on absence of significant impact.
Le PRESIDENT : Merci, Monsieur Wordsworth. Je donne maintenant la parole à
Mme Parlett.
Ms PARLETT:
72
CR 2015/10, p. 23, para. 42 (Reichler).
73CR 2015/12, pp. 50-51 (Thorne).
74
Professor Colin Thorne, “ Assessment of the physical impact of works carried out by Nicaragua since
October 2010 on the geomorphology, hydrology and sediment dynamics of the San Juan River and the environmental
impacts on Costa Rican territory”, Certain Activities; MCR, App. 1, p. II-27.
75
CR 2015/3, pp. 43-44 (Thorne). - 28 -
T HE ABSENCE OF SIGNIFICANT HARM II AND C OSTA R ICA ’S COMPLIANCE
WITH THE ENVIRONMENTAL PROTECTION RÉGIME
A. Introduction
1. Mr. President, Members of the Court, this afternoon I will complete Costa Rica’s case on
the evidence of significant harm and signif icant risk, and then I will shift gear to address
Nicaragua’s case on breaches of the applicable environmental law régime.
B. No evidence of adverse impact on aquatic ecology
76
(1) “[L]ack of data on fish impacts”
2. Nicaragua claims that the road is causi ng significant harm to fish, and claim s
compensation for losses relating to fishing . Its case on fish collapsed this week. I have six points
to make about fish.
3. One: Nicaragua presented no evidence of the impact of the road on fish in the San Juan:
no evidence of dead fish, no evidence of sick fish, not even evidence of fewer fish. Nicaragua’s
only expert to give evidence to you on impacts to fish said on Tuesday: “there is a lack of data on
78
fish impacts, I agree” .
4. Two: remarkably, Nicaragua did not present any evidence of what species of fish inhabit
the relevant part of the R ío San Juan. Professor Kondolf was asked on Monday “you do not
actually know what specific fish species inhabit this part of the river?” 79 His answer: “That is
80
correct.” This morning, Mr. Loewenstein confirmed with Professor Cowx, the only expert on
fisheries put forward by either Party in this case, that no specific studies of fish have been done on
81
the San Juan .
5. Three: data on the species of fish that inhabi t this part of the river, and data about their
sensitivity to sediment, are essential to measure any impact of the road on fish. This morning,
7CR 2015/8, p. 44 (Kondolf).
77
MN, paras. 3.93 and 6.33.
7CR 2015/8, p. 44 (Kondolf).
7Ibid., p. 53 (Wordsworth).
80
Ibid., p. 53 (Kondolf).
8CR 2015/12, p. 14 (Cowx). - 29 -
Professor Cowx confirmed under cross -examination that whether fish are vulnerable to impacts
82
associated with sediment has to be studied on a species by species basis . And although he is not
an expert in fish, Professor Kondolf also told you: “if we had more information about the specific
fish species that were in the river, and if there were some studies of their sensitivity to suspended
83
sediment, then we could have a more informed assessment of the likely impact” .
6. Quite. In 2013 you gave Nicaragua fair warning that any claim about impact on species in
the river would necessarily require evidence at the very least, evidence of species, and at the
very least, an explanation of how the r oad could endanger them. In your Order on Provisional
Measures, you noted that “with respect to the alleged effect on the ecosystem including individual
species in the river’ s wetlands, the Court finds that Nicaragua has not explained how the road
works could endanger such species, and that it has not identified with precision which species are
likely to be affected” 8. It is Nicaragua’s river. Nicaragua could have collected evidence of
species, and evidence of impact, if there were any. It has had more than four years to do so. It has
not.
7. Four: any fish in this part of the river must be tolerant to high levels of sediment and of
large influxes in that sediment. When large tributaries flow into the San Juan, their flow comes
with high levels of sediment. As you know, the only measurements of suspended sediment load on
the San Juan River that Nicaragua has put forward are t he measurements of INETER; you have
now seen them several times 85and they were mentioned again this morning. Those measurements,
for what they are worth, show a dramatic increase in suspended sediment levels in the San Juan
before and after the confluence of the San Carlos River: upstream of the S an Carlos River, the
suspended sediment is about 1,000 tons per day; immediately downstream of the San Carlos, the
suspended sediment is about 1,700 tons per day 86. And there is no suggestion that the sudden
82
CR 2015/12, p. 14 (Cowx).
83Ibid., p. 54 (Kondolf).
84Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Provisional
Measures, Order of 13 December 2013, I.C.J. Reports 2013 , p. 407, para. 34.
85
Certain Activities, INETER, “Summary of Measurement of liquid and suspended solids content during the
years 2006, 2011, 2012”, 26 June 2012, CMN, Ann. 16.
86
Ibid., table No. 2, p. 304. - 30 -
87
increase in sediment at that point leads to any impacts on fish . No dead fish, no sick fish, not
even fewer fish.
8. So Professor Kondolf could not disagree with the proposition that fish in the San Juan are
tolerant to high levels of suspended sediment; what is more, he even said that they would b enefit
from it. He was asked: “You do accept, don’t you, that various species of fish in the catchment
88
area positively flourish in environments with high levels of suspended sediment?” His answer:
“I think that there are a number of fish that are tole rant to high levels of suspended sediment and
89
there are some fish that probably benefit from [turbidity ] in terms of being less visible to
predators or something like that” 90. You have just heard evidence from Professor Cowx, an expert
in fish and aquatic ecology. He confirmsthat “it can be inferred that fish fauna in the San Juan are
well adapted . . . to variable conditions, in particular with respect to sediment loads and
concentration” 91, and he also said they could in fact benefit from conditions of high suspended
92
sediment concentrations and turbidity . Professor Cowx confirmed this evidence to you this
morning. He told you that it was unlikely that fish in the San Juan would suffer adverse impacts
from elevated levels of sediment and that it was hi ghly likely that they would be tolerant to
93
sediment and adapted to conditions of high levels of sediment . He also confirmed, in response to
a question from Judge Bhandari, that sediment brings with it nutrients which build up the algae and
94
macroinvertebrate populations and those populations can have a positive effect on fish .
9. Five: Nicaragua’s claim of significance with respect to fish stands and falls on the
evidence of impact. That impact could only be a ssessed by data. But Professor Kondolf does not
95
agree. He told you not to “confuse lack of data with lack of impact” . That might appear a
8CR 2015/8, p. 52 (Wordsworth and Kondolf).
88
Ibid., p. 53 (Wordsworth).
8Uncorrected transcript records “turpidity”.
9CR 2015/8, p. 53 (Kondolf).
9Professor Ian G. Cowx, Written Statement, Mar. 2015, para. 9.
92
Ibid., para. 8.
93
CR 2015/12, p. 16 (Cowx).
9CR 2015/12, p. 19 (Cowx).
9CR 2015/8, p. 44 (Kondolf). - 31 -
surprising thing for an independent expert to say, and one notes that it then featured as a mainstay
96
of Mr. Reichler’s submissions on Tuesday .
10. Professor Kondolf did try to convince you that there remained a chance of some kind of
impact on fish. He said: “We can certainly point to the probability of adverse impact on fish” even
though he said, “we lack specific data for the Rio San Juan” 97. Probability . What kind of
98
probability? Well, apparently not one that he could assign a percentage to . And how can a broad
statement be made as to probability without even a prior identification of potentially impacted
species? So risk that cannot even be identified at 1 per cent. Risk that is not measureable.
11. Nicaragua’s counsel changed tack on Tuesday, attempting at the last gasp to
99
refashion its case on significant harm to fish into a case on EIA . That is frankly absurd.
Nicaragua has brought this case on the basis of significant harm. It is the Applicant.
12. But anyway, and this is my sixth point: Nicaragua’s case on EIA with respect to fish is
100
fundamentally flawed. Mr. Loewenstein told you there was a “risk” of harm to fish . But there is
no basis for that. The fish in this part of the river are not impacted by a 70 per cent increase in the
suspended sediment load when the San Carlos flows to the San Juan. I f they are not harmed by a
70 per cent increase in suspended sediment load, how c ould there be a risk of harm from an
increase that is taking Nicaragua’s case at its highest 3 per cent?
13. Mr. Loewenstein also said that Costa Rica should have addressed any risk of harm to fish
by finding out “whether the fish in the relevant part of the river are sensitive to sediment, and if so,
at what levels” 101. Could it?
14. In fact and this is supported by actual evidence Costa Rican scientists asked
Nicaragua for access to the river to carry out studies and Nicaragua refused 102.
96
CR 2015/10, p. 14, para. 17; p 15, para. 19; p. 18, para. 27; p. 23, para. 43 (Reichler). See also CR 2015/10,
p. 45, para. 48; p. 46, para. 52; p. 47, para. 55 (McCaffrey).
97
CR 2015/8, p. 53 (Kondolf).
98Ibid., p. 54 (Kondolf).
99CR 2015/10, pp. 29-31, paras. 18-25 (Loewenstein).
100
Ibid., p. 30, para. 20 (Loewenstein).
101CR 2015/10, p. 30, para. 20 (Loewenstein). - 32 -
15. Nicaragua is now saying that Costa Rica has breached international law by failing to
study the species and their susceptibility to sediment on the river , yet when Costa Rica asked to
carry out scientific studies on the San Juan River for this very purpose Nicaragua refused.
The flaws in Nicaragua’s new argument are so apparent that I need not say more.
(2) Impact on aquatic organisms and water quality
16. I turn then to Nicaragua’s claim of significant harm in terms of impact on aquatic
organisms and water quality.
(i) Ríos Samples
103
17. Nicaragua has relied on a report by Dr. Blanca Ríos, an expert in aquatic ecology .
Nicaragua did not present Dr. Ríos to give live evidence to the Court, but she did take actual
samples from deltas on the river, and because there is a dearth of actual data provided by Nicaragua
in this case, I will address her study. But I have only three points.
18. One: Dr. Ríos took samples from eight deltas on the Costa Rica n side of the river, and
eight on the Nicaraguan side, and she compared them for taxa richness and abundance, for
macroinvertebrates and periphyton 104. She did not sample anywhere else on the river; she did not
sample upstream and downstream from the deltas, either in the tributaries or on the r iver. She
assumed that deltas on the Costa Rican side were impacted by the r oad and deltas on the
Nicaraguan side were not impacted by the road. Her study could only show impact if there were
any at the micro level, on the deltas on the Costa Rican bank.
19. I note here that Professor Kondolf told you that you need gravel deposits to take samples
of macroinvertebrates, suggesting to you that the deltas were the only place where samples could
be taken, although he also conceded that macroinvertebrates would be found on the bed of the
10Centro Científico Tropical (CCT) Environmental Diagnostic Assess ment EDA), Route 1856 Project
Ecological Component, Nov. 2013, CMCR, Ann. 10, p. 513 (last paragraph) and p. 519, para. 2.7; and Centro Científico
Tropical (CCT) Follow-up and Monitoring Study Route 1856 Project EDA Ecological Component , Jan. 2015, RCR,
Ann. 14, p. 456, para. 2.6. See also Note from the Minister for Foreign Affairs of Nicaragua to the Minister for Foreign
Affairs and Worship of Costa Rica, ref. MRE/DM-AJ/129/03/13, 5 Mar . 2013, CMCR , Ann. 48, p. 229 (rejecting
Costa Rican navigation on the San Juan River “for scientific purposes”).
10RN, para. 2.83, referring to Dr. Blanca Ríos Touma, “Ecological Impacts of the Route 1856 on the San Juan
River, Nicaragua”, July 2014, RN, Ann. 4.
104
Dr Blanca Ríos Touma, “Ecological Impacts of the Route 1856 on the S an Juan River, Nicaragua”, July 2014,
RN, Ann. 4, pp. 251-252. - 33 -
105
river . With all due respect to Professor Kondolf, there are many places where one could sample
for macroinvertebrates. Professor Kondolf is not an expert in aquatic ecology. Professor Cowx is,
and his evidence is that Dr. Ríos could, and should, have sampled upstream on the r iver, and
106
downstream on the river, or upstream in the tributaries, then downstream of the tributaries . You
also have Professor Cowx’s evidence that alternative sampling methods could have been used for
107
the bed if the r iver was deep . And Professor Cowx is the only expert qualified in aquatic
ecology who gave live evidence to you.
20. Two: Dr. Ríos’ own conclusions were very confined. She said that differences in these
108
substances “can have significant effects on the ecosystem” a very general conclusion indeed.
She noted differences “in the impacted sites” that is, on the deltas 109. She did not conclude that
the road caused harm to “the ecological health of the River” 110 a conclusion that Nicaragua
attributed to her. Nor did she conclude that “[t]he Road’s contribution of sediment to the Rio San
Juan is causing environmental damage by adversely impacting aquatic life and water quality” 111
a conclusion Professor Kondolf attributed to her.
21. Three: th e results of Dr. Ríos’s study cannot be relied upon. Professor Kondolf
confirmed on Tuesday that taxa richness and abundance would be influenced by several factors,
112
including the size of the catchment area of the stream draining to the delta . Six of the eight
deltas on the Costa Rican side sampled by Dr. Ríos had smaller catchment areas than the deltas to
113
which they were compared on the Nicaraguan side . Dr. Ríos did not control for the size of the
105CR 2015/8, p. 56 (Kondolf).
106Professor Ian Cowx, Independent Expert Report concerning Evidence of Impacts on the Aquatic Ecology of the
San Juan River, Nicaragua, due to construction of Route 1856 in Costa Rica, 11 Dec . 2014, RCR, Ann. 2, pp. 51-52.
107
Ibid., p. 52.
108
Dr Blanca Ríos Touma, “Ecological Impacts of the Route 1856 on the S an Juan River, Nicaragua”, July 2014,
RN, Ann. 4, p. 262.
109
Dr Blanca Ríos Touma, “Ecological Impacts of the Route 1856 on the San Juan River, Nicaragua”, July 2014,
RN, Ann. 4, p. 264.
110
Cf. RN, para. 2.83.
111Written Statement of Professor G. Mathias Kondolf, 16 Mar. 2015, para. 52.
112CR 2015/8, p. 57 (Kondolf).
113
See Dr. Blanca Ríos Touma, “Ecological Impacts of the Route 1856 on the S an Juan River, Nicaragua”,
July 2014, RN, Ann. 4, p. 253, Table 1, column 4 (paired deltas 1A/1B, 2A/2B, 3A/3B, 4A/4B, 7A/7B, and 8A/8B). - 34 -
catchment area 114. Professor Cowx, whose evidence you ha ve just heard, has identified other
deficiencies in Dr. Ríos’s study, and concluded that it did not provide “empirical data necessary to
establish OR provide support for the conclusion that sediment eroded from the Road has adversely
115
impacted the aquatic ecology of the San Juan River” .
22. In the light of these issues, it is hardly surprising that Mr. Loewenstein spent less than
thirty seconds on Dr. Ríos’s study on Tuesday and, notably, he did not put Dr. Rios’s study to
Professor Cowx this morning.
(ii) CCT’s Samples
23. In contrast, Professor Kondolf and Mr. Loewenstein both spent much more time on a
study done by Costa Rica’s CCT as part of the environmental diagnostic assessment 116.
Remarkably, and despite the emphasis given to that study this week, Mr. Loewenstein did not put
to Professor Cowx the only expert on aquatic ecology to give live evidence to you the CCT
study to Professor Cowx this morning. The CCT study sampled the macroinvertebrates on Costa
Rican streams. Using these samples, the CCT drew conclusions as to macroinvertebrate richness
and abundance and also as to the water quality of the sampled streams.
24. Professor Kondolf referred to the CCT study as soon as he could when aquatic species
117 118
were mentioned on Monday , and Mr. Loewenstein followed suit on Tuesday , although, as I
have noted, he was studiously silent on the study when cross -examining Professor Cowx this
morning. When the CCT study was mentioned earlier this week, at least Professor Kondolf
acknowledged that he was attributing conclusions to CCT that they did not themselves draw from
119
the data . Counsel for Nicaragua was less faithful to CCT’s Report, removing the words “could
114Professor Ian G. Cowx, Written Statement, March 2015, paras. 31 -32; see also Professor Ian Cowx,
Independent Expert Report concerning Evidence of Impacts on the Aquatic Ecol ogy of the San Juan River, Nicaragua,
due to construction of Route 1856 in Costa Rica, 11 Dec. 2014, RCR, Ann. 2, pp. 48-49.
115Professor Ian G. Cowx, Written Statement, March 2015, para. 48; see also paras. 2-30; and Professor Ian
Cowx, Independent Exper t Report concerning Evidence of Impacts on the Aquatic Ecology of the San Juan River,
Nicaragua, due to construction of Route 1856 in Costa Rica , 11 Dec. 2014, RCR, Ann. 2, p. 49.
116Centro Científico Tropical (CCT) Environmental Diagnostic Assessment EDA), Route 1856 Project –
Ecological Component , November 2013, CMCR , Ann. 10; and Centro Científico Tropical (CCT) Follow -up and
Monitoring Study Route 1856 Project- EDA Ecological Component, Jan. 2015, RCR, Ann. 14.
117See CR 2015/8, p. 43 (Kondolf). See also C R 2015/8, p. 64 (Kondolf).
118
See CR 2015/10, pp. 24-25, paras. 3-4 (Loewenstein).
119CR 2015/8, pp. 63 and 65 (Kondolf). - 35 -
be the cause” 120from his quotation of the CCT Follow -Up Study so as to be able to attribute a
conclusion on risk of harm to CCT.
25. Of course, as Mr. Wordsworth has mentioned, it is remarkable that virtually the only data
on which Nicaragua the Applicant in this case now relies , to substantiate its claim of
significant harm to the San Juan River, is data taken by Costa Rican experts, on Costa Rican
territory. And I would add it is astonishing that Nicaragua did not put that data to Professor Cowx.
26. CCT’s scientists did try to carry out sampling on the San Juan River; they requested t hat
121
Nicaragua allow them to go onto the San Juan for this purpose. Nicaragua refused . You will
find relevant extracts of CCT’s Follow -Up Study from January 2015 at tab 9 of your f olders. If
you turn to the page 16 or page 71 if you use the numbering at the bottom of the bundle, the
bottom of the page at paragraph 2.6, the second paragraph reads:
“As with the case with the formulation of the EDA in 2013, it was not possible
to enlarge the study area due to the Nicaraguan Government’s refusal to allo w
scientists in the study team to enter the San Juan River. For this reason, it was not
possible to sample the San Juan River or the waters in the mouths of the rivers and
channels, which would have provided valuable information for analysis of the
environmental conditions of the River.” 122
27. As a result of Nicaragua’s refusal to allow CCT scientists to access the San Juan, CCT’s
study was necessarily limited to localized impacts on the streams within Costa Rica, and its study
could not address the question of impacts on the San Juan.
28. The sampling done in Costa Rica was on ten small streams. The location of these
streams are indicated on maps also found at t ab 9 of your folders, at pages 74 to 77, together with
some photographs of the sampled stream s 123, which are at pages 79 to 86. As you can see from
120
CR 2015/10, p. 27, para. 12 (Loewenstein) (“The authors of the EDA Follow -up considered Road-derived
sediment to present a risk; they c oncluded that the ‘localized decrease[s] in the quality of water’ were ‘especially due to
sedimentation processes’”). Cf. Centro Científico Tropical (CCT) Follow-up and Monitoring Study Route 1856 Project -
EDA Ecological Component, January 2015, RCR, Ann. 14, p. 525, where the full sentence is: “It is likely that the change
in micro-habitats in the bodies of water, resulting from the works on the Route, could be the cause of the localised
decrease in the quality of water, especially due to sedimentation processes.”
121
Centro Científico Tropical (CCT) Environmental Diagnostic Assessment EDA), Route 1856 Project –
Ecological Component , November 2013, CMCR , Ann. 10, p. 513 (last paragraph) and p. 519 (para. 27); and Centro
Científico Tropical (CCT) Follow -up and Monitoring Study Route 1856 Project - EDA Ecological Component , January
2015, RCR Ann. 14, p. 456, para. 2.6; t ab 9 of judges’ folders. See also Note from the Minister for Foreign Affairs of
Nicaragua to the Minister f or Foreign Affairs and Worship oCosta Rica, ref. MRE/DM-AJ/129/03/13, 5 Mar. 2013;
CMCR, Ann. 48, p. 229 (rejecting Costa Rican navigation on the San Juan River “for scientific purposes”).
122
Centro Científico Tropical (CCT) Follow -up and Monitoring Study Route 1856 Project - EDA Ecological
Component, Jan. 2015; RCR, Ann. 14, p. 456, para. 2.6; tab 9 of judges’ folders.
12Centro Científico Tropical (CCT) Follow -up and Monitoring Study Route 1856 Project - EDA Ecological
Component, Jan. 2015; RCR, Ann. 14, Maps 1-3, pp. 44-476, and table 5-1, pp. 477-486; tab 9 of judges’ folders. - 36 -
those photographs, m ost of the streams are very narrow, they are a bout 3 m wide; one is 25 m
wide, but it is downstream of the Sarapiqu í, some 60 km from Professor Kondolf’s severely
eroding sites 8 and 9 .124
29. It is worth looking at what these samples from Costa Rican streams actually show. For
macroinvertebrates, taxa richness and abundance was lower downstream on only seven sites; it
125
was higher downstream on three sites . Interestingly, there was little consistency richness was
not lower on all the same sites that abundance was lower 12, which is perhaps another reason why
CCT did not draw any definitive conclusions from these data. On page 47 of their Follow -Up
Study, which is also at t ab 9, in the second paragraph , CCT summarize the results in respect of
macroinvertebrates, and then conclude: “Such changes have occurred at the micro level, and are a
temporary response to changes in the environment. We do not consider them as a pointer towards
127
long term significant impacts.”
30. So from a study done on Costa Rican streams, not on the San Juan River: changes at the
“micro level”, a “temporary response”, which did not point “towards long term significant
impacts”. Of course, none of those conclusions feature in Nicaragua’s explanation of this evidence
to you on Tuesday of this week.
31. For water quality, four different analyses were given: for diversity, values were higher
upstream on six Costa Rican streams and lower upstream on four; the dominance, values were
higher upstream on five, and lower upstream on five; for equity, values were higher upstream on
seven and lower upstream on three; and, applying a Costa Rican biota index, values were lower
128
downstream on nine of ten , although CCT noted that the biota index scores were not
12See Centro Científico Tropical (CCT) Follow -up and Monitoring Study Route 1856 Project - EDA Ecological
Component, Jan. 2015; RCR, Ann. 14, Table 5-1, pp. 477-489, column 5 showing width/depth; tab 9 of judges’ folders.
125
Centro Científico Tropical (CCT) Follow -up and Monitoring Study Route 1856 Project - EDA Ecological
Component, Jan. 2015; RCR, Ann. 14, p. 487; tab 9 of judges’ folders.
126
Centro Científico Tropical (CCT) Follow -up and Monitoring Study Route 1856 Project - EDA Ecological
Component, Jan. 2015; RCR, Ann. 14, see Graph 1 on p. 487 and Graph 3 on p. 488; tab 9 of judges’ folders.
12Centro Científico Tropical (CCT) Follow -up and Monitoring Study Route 1856 Project - EDA Ecological
Component, Jan. 2015; RCR, Ann. 14, p. 487; tab 9 of judges’ folders.
12Centro Científico Tropical (CCT) Follow -up and Monitoring Study Route 1856 Project - EDA Ecological
Component, Jan. 2015; RCR, Ann. 14, p. 489; tab 9 of judges’ folders. - 37 -
substantially different downstream and upstream that there was no “extreme difference” 12. On
130
the basis of this data, CCT concluded that there was not a “clear tendency” and that any impacts
“are local effects” 131. This is recorded on page 49 of the Study.
132
32. Mr. Wordsworth took Professor Kondolf to CCT’s conclusions on Monday , and you
also have those conclusions, which are at pages 92 to 93, using the bundle numbering, under the
heading “7.1.2 Aquatic Biology”.
(a) In paragraph 4, CCT confirm that results with respect to macroinvertebrates were “very
variable”.
(b) At the end of paragraph 6, CCT note that impacts of the Road “could be imperceptible in some
of the sampled sites possibly because the aquatic communities have already recovered”.
(c) Over the page, in paragraph 7, CCT confirm that the streams “receive large quantities of
sediment throughout the year coming from the watershed, so that it is expected that aquatic
fauna is adapted to high levels of sediments in the water”.
(d) Paragraph 8: “Therefore, the quantity of sediment contributed by Route 1856 is not sufficient
to cause a significant impact on the bio-indicators studied at the sampled sites.”
(e) Paragraph 9: CCT note that the “presence of groups which are sensitive to aquatic habitat
alterations is a good sign, since these indicators often disappear when there is a strong
alteration of the aquatic habitat”. Two lines further down: “The finding of sensitive families in
practically all t he sampling sites, both upstream and downstream, can be interpreted as a
positive sign of recovery and of the lack of any serious impact by the road works on the
environmental conditions of the points under study.” Quite d ifferent, I note, from
Professor Kondolf’s assertion that CCT “found a lot of evidence that the sediment was
133
impacting the macroinvertebrates and the water [column]” .
129Centro Científico Tropical (CCT) F ollow-up and Monitoring Study Route 1856 Project - EDA Ecological
Component, Jan. 2015; RCR, Ann. 14, pp. 489-490; tab 9 of judges’ folders.
130Centro Científico Tropical (CCT) Follow -up and Monitoring Study Route 1856 Project - EDA Ecological
Component, Jan. 2015; RCR, Ann. 14, p. 489; tab 9 of judges’ folders.
131Centro Científico Tropical (CCT) Follow -up and Monitoring Study Route 1856 Project - EDA Ecological
Component, Jan. 2015; RCR, Ann. 14, p. 519, para. 10; tab 9 of judges’ folders.
132
See CR 2015/8, pp. 62-65 (Kondolf).
133CR 2015/10, p. 64 (Kondolf) (uncorrected transcript records “colony” instead of “column”). - 38 -
(f) Paragraph 10: “It should also be noted that the sampling for bio- indicators was performed in
bodies of water that f low into the San Juan River. The impacts detected caused by the works
on Route 1856 to the bodies of water, such as the modification of substrata and sedimentation,
are local effects.”
(g) Paragraph 11:
“The impacts, such as they are, should not transf er to the San Juan River since
this river is of a superior order, with a stream volume much larger than those of the
bodies of water in the study. The section of the San Juan River that runs parallel to
the Route is located in the lower part of the watershed where the quantities of
sediment are naturally high, so that any impacts of the Route construction on the
organisms that inhabit the San Juan river would be expected to be minimal and very
diffuse, given the volume of water that this river carries as a receptor body.” 134
Professor Kondolf was reluctant to agree with this, although he did concede that “certainly the
impacts would be more intense right there” 135 right there on the small streams. But i t is
obvious that any impacts in these small str eams would be diffused in the Rí o San Juan, which
has an average width of 292 m 13. So, in so far as the San Juan is concerned, the CCT Study
does not constitute evidence of actual significant harm and no evidence of risk of significant
harm.
(h) I will not read this out, you will be relieved to know, but in paragraphs 12 and 13 CCT go on to
explain that to “evaluate with greate r certainty” the impact of the road on the San Juan and its
aquatic life, it is necessary to have information on what aquatic organisms are in the river, and
what their tolerance is to sediment. Indeed. Like fish, data as to species, and data as to
tolerance, are necessary to substantiate a claim to significant harm or risk of harm.
33. Mr. Loewenstein said on Tuesday that the data collect ed by CCT “demonstrate that
aquatic life and water quality in the tributaries leading into the San Juan are being adversely
137
impacted by sediment from the Road” , and that these data “demonstrate that the San Juan’s
ecological health has been placed at risk by sediment from the road” 138. As we have just seen,
134
Centro Científico Tropical (CCT) Follow -up and Monitoring Study Route 1856 Project - EDA Ecological
Component, Jan. 2015; RCR, Ann. 14, p. 519, para. 11, tab 9 of judges’ folders.
135
CR 2015/9, p. 64 (Kondolf).
13CR 2015/11, p. 16, para. 8 (Brenes).
137
CR 2015/10, p. 28, para. 13 (Loewenstein).
138
CR 2015/10, p. 25, para. 3 (Loewenstein). - 39 -
counsel’s interpretation of these data stands in stark contrast to the conclusions of CCT, whose
team included qualified experts in aquatic ecology, and who found that any changes were at the
“micro level”, “local effects”, a “temporary response”, and not a “pointer towards long term
significant impacts”. If Nicaragua wished to challenge the conclusions of this study the appropriate
course of action would have been to carry out its own sampling, not to g ive inexpert opinion from
its counsel at the Bar about CCT’s sampling. And if Nicaragua had any genuine basis for its new
assertions that the data underlying CCT’s study shows adverse impact on aquatic life and water
quality, then naturally one would have expected that it would have put those assertions to
Professor Cowx. In any event, Professor Cowx told you this morning that he has seen nothing to
139
indicate any loss of macroinvertebrates and fauna in the San Juan River . And I would finally
note that, anyway, the Court has the CCT Reports, it has Professor Cowx’s evidence, and it will no
doubt be looking at that evidence carefully, since it is the only actual data on which Nicaragua now
relies.
34. And, for the sake of completeness, and just in case there were any doubt, I should also
just confirm, Professor Kondolf is not an expert in aquatic ecology or fish, that is clear from his CV
attached to his report 140, while Nicaragua’s only expert on aquatic ecology was not called to speak
to her report.
C. No other significant harm
35. For completeness, I should mention briefly three other claims advanced by Nicaragua as
to other sources of significant harm to the river.
(1)Impact on human health
141
36. Nicaragua has claimed compensation for costs to “public health” , on the basis of
142
significant harm caused to the health of riparians of the r iver . There is no evidence of any
139
CR 2015/12, p. 18 (Cowx).
14G. Mathias Kondolf et al., Environmental Impacts of Juan Rafael Mora Porras Route 1856, Costa Rica, on the
Río San Juan, Nicaragua, MN, Ann. 1, pp. 3-4.
14MN, para. 6.33.
142
MN, para. 2.14. - 40 -
impact on the health on any persons that would support a claim to any harm, still less significant
harm, still less compensation.
(2)Impact on tourism
37. Nicaragua also claims compensation for signifi cant harm to tourism on the
143
San Juan River . This claim has no sensible legal foundation and is entirely unsupported by
evidence of actual impact 144. The suggestion that Costa Rica is liable to pay compensation for a
breach of international law because it built a road that Nicaragua finds visually unappealing is
beyond absurd. It is perhaps for this reason that no one at the table opposite pursued this claim
earlier this week.
(3)Risk of impact of hazardous substances
38. Finally, Nicaragua argues that there is a risk associated with hazardous substances being
145
transported on the road . And this week Nicaragua’s imaginings were painted to life by
Professor Pellet’s “camion-citerne”. Costa Rica has explained that its laws prohibit the transport of
146
hazardous substances on the r oad . That explanation was apparently not good enough for
Professor Pellet 147, but in this case Nicaragua carries the burden of proof to make good its claim of
significant harm, and references to imagined tanker trucks and imagi ned potential breaches of
Costa Rican law are not proof of harm. And even as to the risk of harm, the idea of a spill of a
hazardous substance is entirely speculative.
143MN, paras. 4.1, 1.12 and 6.33.
144
See RCR, paras. 2.106-2.107.
145RN, paras. 3.34 and 3.40.
146See RCR, p ara. 2.105; see also Costa Rica, Executive Decree No 24715 -MOPT-MEIC-S, 6 Oct . 1995,
published in the Official Gazette number 207, 1 Nov . 1995; RCR Ann. 15; Costa Rica, Department of Transit
Engineering, Ministry of Public Works and Transportation, Authorization of Routes for the Transport of Hazardous
Materials, 1995; RCR Ann. 70; Note from the Chief Engineer of the Department of Studies and Designs of the Consejo
Nacional de Vialidad (CONAVI) to the Chief of the Department of eights and Dimensions and to the Director-General of
the Transit Police of Costa Rica, ref. DGIT-ED-4697-2014, 11 June 2014; RCR, Ann. 76; and Internal Communication
of the Costa Rican General Department of Transit Engineering of the Ministry of Public Works and Transportation,
regarding the Authorization of Routes for the Transport of Hazardous Materials, June 2014; RCR Ann. 77.
147Cf. 2015/10, p. 66, para. 37 (Pellet). - 41 -
(4)The micro deltas
39. I should also just mention the eight deltas characterized by Professor Kondolf as
“huge” 148. These now seem not to form part of Nicaragua’s case on significant h arm or risk of
harm. Professor Pellet stood alone in mentioning the deltas on Tuesday, suggesti ng that they
impeded navigation, particularly around the bifurcation between the Colorado and the Lower San
149
Juan . Since none of Professor Kondolf’s eight deltas are in that reach, we presume that point
will not be pursued next week.
40. I need only make three brief points about the eight deltas.
41. One: they are manifestly not huge; they are micro. You have seen them, and you have
seen their scale relative to the river. Nicaragua accepts that some of them pre -date construction of
150
the road .
42. Two: the deltas are not at each of Professor Kondolf’s “severely eroding sites”. It is not
151
the case that eight of those areas has a delta . These deltas are all concentrated in a stretch of
4 km of the river, at sites 8 and 9 152.
43. Three: you have seen from the video shown yesterday afternoon that there are a dozen or
so of these micro deltas on both sides of the river 153.
44. That completes Costa Rica’s explanation of the absence of any evidence of significant
harm or significant risk of harm.
D. Costa Rica has complied with the Applicable Environmental Law Régime
(1)No breach of the obligation not to cause significant transboundary harm
45. The legal implications of the absence of evidence are clear. Costa Rica has fully
complied with the obligation under general international law not to cause significant transboundary
148
Written Statement of Professor G. Mathias Kondolf, 16 Mar. 2015, para. 49.
149
CR 2015/10, p. 60, para. 25 (Pellet).
150CR 2015/8, p. 62 (Kondolf).
151Cf CR 2015/9, p. 18 (Kondolf).
152
Co-ordinates of the eight deltas are given in App. F of G. Mathias Kondof, Erosion and Sediment Delivery to
the Rio San Juan from Route 1856, July 2014; RN, Ann. 1, pp. 121-129.
153See, for example, Professor Colin Thorne, Assessment of the Impact of the Construction of the Border Road in
Costa Rica on the San Juan River: Reply Report , Feb. 2015; RCR, App. A, fig.5.2, pp. 92-95. - 42 -
154
harm . There is no evidence that the road is having an adverse impact on the San Juan River: no
evidence that it has had any significant, serious, substantial, real, or even appreciable adverse
impact. Nicaragua’s claim of significant harm must fail.
(2)No breach of applicable environmental law treaties
46. In its written pleadings, Nicaragua relied upon six environmental law treaties for its
claims of breach 15. Costa Rica responded fully to those allegations in our written pleadings , and 156
Nicaragua has elected not to grapple with our responses but merely to repeat its assertions of
157
breach. On Tuesday , Professor McCaffrey dealt with them in a single paragraph and his
argument requires just one point to be emphasized in response.
47. He said that two of the conventions, the 1992 Convention on Biological Diversity and the
1971 Ramsar Convention “appl[y] to breaches wholly within Costa Rica’s territory” 158.
48. Nicaragua relies on Ar ticle 3 (1) of the Ramsar Convention 159, which concerns the
formulation and implementation of plans to promote “as far as possible” the wise use and the
conservation of the wetlands 160. As Costa Rica explained to the Co urt and to Ramsar, part of the
road does traverse Costa Rica’s protected wetland; it is that part of the r oad starting about 10 km
upstream from the Colorado River. There are none of Professor Kondolf’s “severely eroding sites”
in that area. The protected wetland is some 72 km downstream from those “severely eroding sites”
8 and 9, those sites that have been the focus of Nicaragua’s allegations of significant harm and risk
of harm. In accordance with the Ramsar Convention, Costa Rica did notify the Secretariat of the
161
Ramsar Convention of the works on the road , and it has since then provided an update to Ramsar
15The existence of this obligation is accepted by both Parties: see, e.g., CR 2015/10, pp. 49- 50, para. 2 (Pellet);
and CR 2015/10, p. 47, para. 53 (McCaffrey).
155
RN, para. 6.143.
156
RCR, paras. 3.58-3.68.
15CR 2015/10, p. 48, para. 59 (McCaffrey).
15CR 2015/10, p. 48, para. 59 (McCaffrey).
15Convention on Wetlands of International Importance especially as Waterfowl Hab itat, Ramsar (Iran),
2 Feb. 1971, as amended by the Paris Protocol of 3 Dec. 1982 and the R egina Amendments of 28 May 1987 ; Certain
Activities case, MCR, Ann. 14, Art. 3 (1).
16MN, paras. 5.74-5.76; and RN, paras. 6.112-6.115.
161
See Note from Minister for Foreign Affairs and Worship of Costa Rica, to Secretary Gen eral of the Ramsar
Convention, ref. DM-110-12, 28 Feb. 2012; CMCR, Ann. 43; cf. CR 2015/7, p. 33, para. 31 (McCaffrey). - 43 -
on those works 16. Professor McCaffrey said last week that he did not know whether Costa Rica
163
had consulted with Ramsar ; I would simply refer him to Annexes 22, 43 and 73 of Costa Rica’s
Counter-Memorial, submitted in 2013. Professor Pellet told you 68.3 ha of primary forest in the
164
Ramsar-protected wetland had been cut down for the road ; that is wrong. I n fact no primary
forest was cleared in the Ramsar wetland, and the r oad there was built on a pre -existing track.
Costa Rica has notified the road to the Ramsar Secretariat and has kept it informed of
developments in relation to the r oad. Ramsar has specific procedures in place for the making of
recommendations in respect of notifications of this kind and it is notable that Ramsar did not raise
any objection, and it has not raised any objection since.
49. Nicaragua also invokes Article 8, paragraphs (d), (e), and (f) of the 1992 Convention on
Biological Diversity 16. Those provisions require States, as far as possible and appropriate, to:
promote the protection of ecosystems and natural habitats (paragraph (d)); to promote sustainable
development in areas adjacent to protected areas (paragraph (e)); and to rehabilitate and restore
degraded ecosystems and to promote the recovery of threatened species (paragraph (f)). Nicaragua
has not demonstrated that the r oad falls foul of any of these requirements to endeavour
appropriately to promote ecosystems and the like. It is for Nicaragua, as Applicant, to demonstrate
an actionable breach of this Agreement and it has failed to do so.
50. Before I close on the issue of applicable legal obligations, I note that Nicaragua has now
accepted that the 1858 Treaty is not lex specialis in respect of the parties’ environmental law
obligations, because it does not “conflict in any way” with those environmental obligations 16.
Costa Rica takes note of Nicaragua’s change of position in that regard, it having previously
contended in its Memorial that th e 1858 Treaty constituted the applicable law 167, and having
162
Ministry of Foreign A ffairs and Worship of Costa Rica, New works in the Northeastern Caribbean Wetland,
Report to the Executive Secretariat of the Ramsar Convention on Wetland, July 2013; RCR, Ann. 73, sent to Ramsar
Secretariat under cover of Note from the Permanent Representative of Costa Rica to the U nited Nations, Geneva, to the
Secretary General of the Ramsar Convention, ref. MCPR-ONUG/2014-324, 17 July 2013; CMCR, Ann. 22.
163
CR 2015/7, p. 28, para. 41 (McCaffrey).
164CR 2015/10, p. 57, para. 21 (Pellet).
165MN, paras. 5.6 6-5.72; RN, paras. 6.106 and 6.108; Convention on Biological Diversity, Rio de Janeiro,
5 June 1992, 1760 UNTS79, Art. 8.
166
CR 2015/10, p. 33, para. 4 (McCaffrey).
167See MN, para. 1.13. - 44 -
contended in the Certain Activities case that it constitutes lex specialis, displacing obligations under
168
general international law and treaties . As Costa Rica explained last week, in so far as
Nicaragua’s activities on the San Juan are concerned, the 1858 Treaty and the 1888 Award do not
displace Nicaragua’s obligations under applicable environmental law rules, including because they
are not inconsistent with the 1858 Treaty and because the 1858 Tr eaty must be interpreted in the
light of relevant international law principles, including those relating to protection of the
169 170
environment . Nicaragua did not respond to that in its first round in the Certain Activities case
and we expect that it will be clarifying its position in the second round.
E. Conclusion
51. Mr. President, Members of the Court, that concludes my remarks for this afternoon and I
thank you for your patient attention. Mr. President, would you call on Ambassador Sergio Ugalde
to conclude Costa Rica’s first round of oral argument? Perhaps after the break.
Le PRESIDENT : Merci. Je vais donner maintenant la parole à Monsieur l’ambassadeur
Sergio Ugalde.
Mr. UGALDE:
N ICARAGUA ’S REMEDIAL REQUESTS
1. Mr. President, Members of the Court, my task this afternoon is to examine Nicaragua’s
claims for remedial relief. Given what you have heard thus far, I shall be brief.
2. Nicaragua’s claim contains a long shopping list, including, but not limited to, an order that
171
Costa Rica must pay f or Mr. Pastora’s dredging project . That submission is emblematic of the
absurdity of Nicaragua’s claims for relief. Costa Rica is confident that the real implications of
what Nicaragua is asking for will not escape the attention of the Court.
168
See CR 2015/7, pp. 28-30, paras. 19-24; pp. 31-31, paras. 28-29; pp. 38-39, paras 44-46 (McCaffrey).
16CR 2015/3, pp. 50-54, paras. 17-26 (Parlett).
170
Cf. CR 2015/7, pp. 28-30, paras. 19-24; pp. 31-31, paras. 28-29; pp. 38-39, paras 44-46 (McCaffrey).
171
CR 2015/10, p. 58, para. 22 (Pellet). - 45 -
A. Introduction: The chameleonic character
of Nicaragua’s claims for relief
3. It is apparent from a cursory comparison of the submissions made by Nicaragua in its
Application, Memorial, and Reply that its claims have changed substantially over the course of
these proceedings. However, it would appear that there have been yet further modifications. Most
notably, having been unable to establish the significant harm which constitutes the very foundation
of its claim, Nicaragua now, some three-and-a-half years after these proceedings were commenced,
asks the Court to appoint an expert to identify the significant harm for it 17. This position suffers
from a logical fallacy: if Nicaragua has not established significant harm, it has not established
breach, and therefore is not entitled to a remedy for that breach.
4. In this presentation, I will address only those claims which Nicaragua appears to be
maintaining. As such there are a number of elements of the relief which Nicaragua has claimed at
various points duri ng these proceedings which I will not address, but of course these are fully
addressed in Costa Rica’s written pleadings 173.
5. First, I will not address the merits of Nicaragua’s extraordinary and extravagant claim for
a declaration that it is entitled to suspend Costa Rica’s rights of navigation on the San Juan
174
River , nor its claim for a declaration that it is entitled to take the same action by way of
countermeasure 175. No mention was made of either of these claims in Nicaragua’s Reply or in its
oral argument this week, and they appear to have been abandoned.
6. Second, there are Nicaragua’s requests for declarations that it is entitled to undertake
works for the improvement of navigation on the San Juan River as it deems suitable, including by
dredging and that, in doing so, it is entitled to re -establish the conditions of navigation that existed
176
at the time of conclusion of the Treaty of Limits in 1858 .
172
CR 2015/10, p. 61, para. 26 (4) (Pellet).
173The Road, CMCR, paras. 6.1-6.26; The Road, RCR, paras. 4.1-4.37.
174The Road, MN, para. 6.37-6.42.
175
The Road, MN, para. 6.43-6.44.
176The Road, MN, p. 252 (para. 3 (i) and (ii)); RN, p. 282 (para. 4 (i) and (ii)). - 46 -
7. The claims mirror exactly Nicaragua’s position in its Counter -Memorial in the Certain
Activities case , even though, I note, they were not made in their Application. You heard what
178
Costa Rica says in that regard last week , and I will say no more on the topic today.
8. Third, in its written pleadings, Nicaragua alleged harm to tourism and the visual aesthetics
179 180 181
of the countryside , fishing , and human health , and requested compensation for losses
relating to them 18. However, as Dr. Parlett has already noted this afternoon, those claims are
183
entirely unsubstantiated , and they were not pursued this week. I therefore say no more about
them.
B. Nicaragua’s claims for declaratory relief
9. Mr. President, I turn to the claims for declaratory relief, in so far as they appear to be
maintained. Of course, all of Nicaragua’s r equests for declaratory relie f and indeed all its
remedial claims are necessarily premised on the assumption that it succeeds in establishing that
Costa Rica has in fact breached its obligations. As has been demonstrated today, Nicaragua has
failed to establish that construction of the road has caused any significant harm, that there is a risk
of such harm, or that there has been a breach of any obligation incumbent on Costa Rica.
10. Professor Pellet affirmed that Costa Rica has “without any doubt committed one or more
internationally wrongful acts it has violated a number of obligations incumbent upon it under
international law, and it is also evident that this or these acts have caused a serious injury to
Nicaragua” 184.
11. Two observations are in order. First, Professor Pel let mentioned first breach, and only
then damage. In similar vein, he later referred to the ILC’s post -Ago exclusion of damage as a
177
Certain Activities, CMN, pp. 455-456 (para. 2 (iii) and (iv)).
178CR 2015/04, pp. 42-43, paras. 24-25 (Kohen).
179The Road, MN, paras. 1.12, 4.1 and 6.33.
180
The Road, MN, paras. 3.93 and 6.33.
181
The Road, MN, paras. 2.14 and 6.33.
182The Road, MN, para. 6.33.
183The Road, RCR, paras. 2.94-2.95.
184
CR 2015/10, pp. 51-52, para. 8 (Pellet) (Original French: “sans aucun doute commis un ou plusieurs faits
internationalement illicites il a violé nombre d’obligations lui appartenant en droit international, et il est évident aussi
que ce ou ces faits ont causé un grave préjudice au Nicaragua”). - 47 -
necessary element for the existence of breach of an international obligation from the Articles on
185
State Responsibility , contrasting this with the central role it plays for the Part Two of the Articles
on the “Content” of international responsibility 186.
12. The proposition that proof of damage or harm is not required in order to establish the
breach of an international obligation is undoubtedly true as a general matter. But, this is not always
187
the case .
13. The central claim by Nicaragua in the present case, and the foundation for its various
remedial requests, is that significant harm has been caused by the construction o f the road. This is
an example of a primary obligation which does not conform to the general rule. It is only by
proving that significant harm has been caused that Nicaragua can establish a breach. The causing
of significant harm is the breach.
14. Second, in discussing Nicaragua’s claim for compensation, Professor Pellet suggested
that, should the Court determine that “the consistency and extent of these damages appear not to be
188
sufficiently established” , it should proceed to appoint an expert “to est ablish in an objective and
irrefutable manner the existence of these harms and their causation” 18.
15. That suggestion is a barely concealed acknowledgment that Nicaragua has failed to make
out its case on significant harm. In a case such as the present, the question of whether significant
harm has been caused, and therefore of breach, cannot be postponed to a subsequent phase of these
proceedings. Nicaragua is only entitled to a remedy if it establishes a breach. The time for it to do
so is now.
16. As regards the claim for a declara tion as to cessation, Professor Pellet spent some time
seeking to establish that the significant harm Nicaragua alleges is continuing. Ultimately, however,
he accepted that the declaration for cessation sought by Nicaragua is indistinguishable from the
18CR 2015/10, pp. 50-51, para. 5 (Pellet).
18CR 2015/10, p. 51, para. 5 (Pellet).
187
Articles on Responsibility of States for Internationally Wrongful Acts, Commentary to Article 2,
paragraph (9), ILC Yearbook 2001, Vol. II (2), p. 36.
188
CR 2015/10, p. 61, para. 26 (4) (Pellet) (Original French: “ la consistance et l’étendue de ces dommages ne
sembleraient pas suffisamment établies”).
18CR 2015/10, p. 61, para. 26 (4) (Pellet) (Original French: “pour établir d’une m anière objective et irréfutable
l’existence de ces préjudices et la chaîne de leur causation”). - 48 -
measures it is seeking by way of restitutio 190. The claim for cessation therefore appears no longer
to be pursued as a separate head of relief.
17. Nicaragua also seeks declarations in respect of potenti al, future breaches.
Professor Pellet suggested that these might fall under the rubric of “guarantees of
191
non-repetition” . But, of course, here there is no prior breach in relation to which guarantees of
non-repetition are required.
18. The declarations which Nicaragua seeks relate to potential new breaches which, if they
were to occur at all, lie entirely in the future, and are purely speculative. Nicaragua has been
unable to show that it is probable, let alone likely, that the feared breaches to which those
prospective declarations relate will, in fact, occur.
19. This is particularly the case for Nicaragua’s request, introduced in the Reply, that the
Court pre -emptively order that Costa Rica must prevent any use of the r oad for transport of
hazardous materials, unless stringent conditions are fulfilled 192.
20. Nicaragua’s claim for a declaration in this regard is based entirely on speculation that the
road may in the future be used for transport of hazardous materials, which could potentially have an
impact upon the river, in the event that an accident were to occur. It is n ot based on any breach by
Costa Rica of an existing binding international obligation. There is no basis for a binding
declaration of this Court in this regard.
193
21. That is all the more so given that, as Dr. Parlett explained earlier , and as we showed in
our Rejoinder 19, in light of the content of Costa Rica’s domestic legislation, there will be no
significant transport of hazardous waste on the road. Nicaragua’s concerns in this regard are
completely groundless.
22. Nicaragua’s request for a declaration that Costa Rica may not carry out any new
activities in the region of the San Juan without previously carrying out an environmental impact
190CR 2015/10, p. 58, para. 19 (Pellet).
191
CR 2015/10, p. 64, para. 32 (Pellet).
192RN, p. 252, para. 3 (ii).
193Above, p. 40, para. 38 (Parlett).
194
RCR, paras. 2.104-2.105. - 49 -
assessment, which should be presented in a timely fashion t o Nicaragua for its analysis and
reaction , is equally ill-founded.
23. First, it is obviously unnecessary because it substantially reproduces the content of the
international environmental obligations which Costa Rica already accepts are binding upon it 196.
24. Second, the proposed declaration is excessive, in so far as it appears to envisage the
prohibition of the carrying out of any new activity in the region of the San Juan without a prior
EIA. As Professor Kohen explained, not every proposed activity in the border area will necessarily
require an EIA 19. It is also insufficiently precise as to its scope. The declaration requested stands
in contrast with Nicaragua’s position in the Certain Activities case, where, on the basis of its lex
specialis argument, it claims not to be subject to any such obligations in relation to its dredging
198
programme . Although, as Dr. Parlett indicated, it appears to have abandoned that position.
25. I should turn to Nicaragua’s general request for a declaratory relief that Costa Rica is
199
bound to prepare an appropriate transboundary e nvironmental impact assessment . Costa Rica
has established that first, the threshold triggering a requirement to carry out an EIA was not met in
this case 200, as the proposed activity did not e ntail a risk of significant transboundary harm.
Second, even if t hat threshold had been reached, quod non, Costa Rica was not required to carry
one out because of the situation of emergency it faced, and which was brought about by
201
Nicaragua’s military actions and threats . At any rate, Costa Rica produced 22 technical studies
on the road, including an EDA and its follow-up study. Mr. President, I do not know if you would
like me to finish or if you would like me to . . ? Very well.
195
MN, p. 252, para. 2 (iv); NR, p. 282, para. 3 (i).
196
See CR 2015/3, pp. 45-50, paras. 3-16 (Parlett).
197CR 2015/11, p. 49, para. 34 (Kohen).
198See, e.g., CR 2015/5, p. 35, para. 27 (Pellet); ibid ., p. 40, para. 38 (Pellet); CR 2015/7, pp. 28- 29, para. 16
(McCaffrey); CR 2015/10, p. 32, para. 3 (McCaffrey).
199
RN, para. 7.22.
200
CR 2015/11, pp. 46-50, paras. 26-38 (Kohen).
201Ibid., pp. 51-53, paras. 39-45 (Kohen). - 50 -
C. Nicaragua’s Claim for Restitution (“restoration of the status quo ante”)
26. Mr. President, Nicaragua’s claims for restitution have also undergone notable
modification over the course of this case.
202
27. Whilst initially requesting an order that Costa Rica “restore the st atus quo ante” , in its
Reply, Nicaragua qualified its request for restitution, and asked that the status quo should be
203
restored “as far as possible” . At the same time, it makes clear that it does not request the
“complete re- establishment of the status quo ante ” 20, involving the destruction of the road.
205
Professor Pellet essentially maintained Nicaragua’s position in this regard on Tuesday .
28. In addition, Professor Pellet, reformulated Nicaragua’s claims for a declaration that it is
entitled to dredge the Lower San Juan as it sees fit, and its claim for compensation corresponding to
the alleged additional cost of dredging re sulting from sediment from the r oad, as in some way
206
falling under the rubric of restitution .
29. As with Nicaragua’s claims for purely declaratory relief, the claim for restitution is
necessarily premised upon it establishing the breaches it alleges, specifically the alleged breach of
the obligation not to cause significant transboundary harm.
30. But even assuming that a breach has been established which Costa Rica does not
accept the specific measures which Nicaragua claims as restitutio , including the replanting of
trees, the reconstruction and consolidation of river banks, and what Professor Pellet called “une
remise en ét at conforme aux règles de l’art” 207, do not constitute restitution corresponding to the
breaches it alleges.
31. Although he referred to it 208, Professor Pellet did not show you Article 35 of the ILC’s
Articles on State Responsibility.
20MN, para. 6.31.
203
RN, par. 7.7; see also ibid., para. 7.8.
204
RN, para. 7.8.
20CR 2015/10, p. 57, para. 20 (Pellet).
20CR 2015/10, p. 59, para. 23 (Pellet).
207
CR 2015/10, p. 57, para. 21 (Pellet).
20CR 2015/10, p. 56, para. 19 (Pellet). - 51 -
32. The key concept is that restitution should “re-establish the situation which existed before
the wrongful act was committed” 209. This implies that the measures required by way of restitution
should correspond to, and wipe out, the consequences of the conduct which constitutes the breach
for which restitution is claimed as reparation.
33. As observed by the ILC in its Commentary: “ What may be required in terms of
210
restitution will often depend on the content of the primary obligation which has been breached” .
That requires careful analysis of the relevant primary obligation, and the conduct said to have
resulted in its breach.
34. As I have said, the relevant obligation is not one to cause significant harm. T he
obligation does not prohibit a specific action; what is prohibited is the result. Put in other terms, a
State is required only to ensure that no significant transboundary harm is caused, the obligation
says nothing as to the actions it must take to ensure that result.
35. It follows that even if the Court were to conclude that the construction of the r oad had
caused and was continuing to cause significant transboundary harm through the de posit of
sediments into the San Juan River, which it is not, it would be for Costa Rica to proceed in a
manner of its own choosing to put an end to the breach.
36. Nicaragua has implicitly recognized this by its abandonment of the request, put forward
as a claim for provisional measures in the Memorial, and repeated in its 2013 Request for
Provisional Measures, that the Court should require specific detailed measures of remediation as
requested by its experts, including re-routing of sections of the road 211. It is similarly recognized in
the qualifications it makes to the scope of the restitution requested in i ts Reply, repeated by
Professor Pellet on Tuesday 212.
37. But just as Nicaragua is not entitled to claim restoration of the Costa Rican countryside
to its previous condition, it cannot insist that trees should be replanted, or insist that remedial works
should be undert aken on the banks, or that the r oad should be constructed in a particular way.
209
Articles on Responsibility of States for Internationally Wrongful Acts, Article 39, ILC Yearbook 2001 ,
Vol. II (2), p. 35.
210Articles on Responsibility of States for Internationally Wrong ful Acts, Commentary to Art. 35, para. (6), ILC
Yearbook 2001, Vol. II (2), p. 98.
211MN, para. 6.8.
212
CR 2015/10, p. 57, para. 20 (Pellet). - 52 -
Nicaragua’s right is that significant harm should not be caused to its territory. As explained earlier,
there is absolutely no evidence that significant harm has been cau sed by th e construction of the
road; but even, in the event that the Court were to find that there were a breach, the modality by
which Costa Rica complies with its obligation not to cause significant harm is for Costa Rica to
decide.
38. Equally, nor does Nicaragua have the right to insist, if a breach were to be found, that the
measures to be taken by Costa Rica should be supervised or decided upon by an expert, whether
213
appointed by the Court, as it requested in its Reply , or appointed by Nicaragua and Costa Rica
jointly, as Professor Pellet suggested on Tuesday 21. The choice of measures to be taken within
Costa Rican territory, leading to the result to be achieved, would necessarily be for Costa Rica
alone.
39. All of this, I should unde rline, is purely hypot hetical. Costa Rica has not caused any
harm and has not breached any international obligation.
40. Nicaragua’s requests for particular orders that measures be taken are in fact an
ill-disguised attempt to persuade the Court to impose an Order dictating r emedial works to be
undertaken by Costa Rica. By contrast, in the Certain Activities case, Costa Rica has not requested
any such extravagant order as regards the manner in which Nicaragua’s dredging operations have
been implemented.
41. As such, there is no basis for the Court to make any order either for “restoration of the
status quo ante ”, or requiring Costa Rica to take specific measures of remediation by way of
restitution.
D. Nicaragua’s claim for compensation
42. Finally, I turn to Nicaragua’s cla im for compensation. As I noted earlier, the claims for
compensation for harm to fishing, tourism and public health appear to have been abandoned, which
leaves us only with Nicaragua’s claim that Costa Rica should pay compensation for the alleged
21RN, para. 7.35.
21CR 2015/10, p. 57, para. 21 (Pellet). - 53 -
increased cost of dredging of the Lower Rio San Juan. As I have said this is, in effect, a request
that Costa Rica should pay for Mr. Pastora’s dredging.
43. Professor Pellet suggested that Nicaragua’s claim for compensation in that regard falls in
some manner within the rubric of restitution, or at least straddles the border between restitution and
215
compensation . However, as we see it, Professor Pellet’s innovative theory adds little to the
debate, and I will deal with Nicaragua’s claim simply under the heading of compensation.
44. Here the short response is that in order to be able to claim compensation, Nicaragua must
demonstrate that it has suffered significant harm, and that that harm is financially assessable.
Nicaragua has failed to do either.
45. The only other point to make is that, as I have already said, Nicaragua cannot seek to
postpone the requirement of proving that it has suffered harm until a later phase of these
proceedings, including through requesting the Court to appoint an expert. The ha rm suffered must
be established at the present stage of proceedings, as an elementary precondition of both breach and
its entitlement to the remedy of compensation.
E. Conclusion
46. Mr. President, Members of the Court, the manner in which Nicaragua’s cl aims for relief
have changed over the course of this case demonstrate the lack of foundation and futility of its
overall claim. In addition, I would suggest that it reveals this case for what in reality it is an
attempt to divert the Court’s attention from the very serious breaches of Nicaragua’s international
obligations in the Certain Activities case.
47. Seen in this light, Nicaragua’s repeated insistence upon its right to set -off or compensate
any damages awarded against it in the Certain Activities case against the sums it claims by way of
216
compensation in the present case , is indeed revealing.
48. For all of these reasons, all of Nicaragua’s claims fail and must be rejected.
49. Mr. President, that concludes Costa Rica’s first round presentation in the case concerning
Construction of a Road. Mr President, if it pleases the Court, Costa Rica is ready to answer the
21CR 2015/10, p. 58, para. 22 (Pellet).
21CR 2015/7, p. 61, para. 43 (Pellet); CR 2015/10, p. 61, para. 26 (5) (Pellet). - 54 -
questions put yesterday by Judge Bennouna and Judge Greenwood. If that is the case, I will ask
that the floor be given to Professor Marcelo Kohen. Thank you.
Le PRESIDENT : Merci. Est-ce que le professeur Kohen a besoin d’un long moment ? Si
c’est le cas, nous faisons une pause, si ce n’est pas le cas, je lui donne tout de suite la parole. Le
professeur Kohen.
M. KOHEN : Cela ne prendra pas plus de cinq minutes, Monsieur le président.
Le PRESIDENT : Je vous en prie.
M. KOHEN : Je commence par la question posée par le juge Bennouna, qui se lit comme
suit :
«Le Costa Rica estime que l’obligation internationale de procéder à une
évaluation de l’impact sur l’environnement EIE est conditionnée par l’existence d’un
risque transfrontière significatif ou important. Le Costa Rica peut -il préciser à la
Cour, premièrement, comment l’existence d’un tel risque peut -elle être établie pour
que l’obligation de procéder à une EIE puisse s’imposer au Costa Rica avant que
celui-ci ne mette en Œuvre son projet de route ? Deuxièmement, si comme semble le
suggérer le Costa Rica, la preuve de ce risque incomberait au Nicaragua, dans quelles
conditions ce dernier peut-il apporter la preuve qui lui est ainsi demandée ?»
La réponse est la suivante : L’exigence des procéder à une EIE est en effet conditionnée par
l’existence d’un risque de dommage transfrontière significatif. L’existence d’un tel risque est
déterminée dans certains systèmes conventionnels parce que l’activité visée est inclu se dans une
liste d’activités qui requièrent une EIE. Tel n’est pas le cas ici. Dans d’autres cas, cela est fait par
le truchement d’une évaluation qui tient compte de l’activité ou de l’ouvrage envisagés et de son
possible impact environnemental. Cette évaluation préalable ne fait toutefois pas partie de l’EIE
proprement dite.
Dans ce contexte, la réponse à la première question posée par le juge Bennouna est la
suivante : Pour que cette obligation ait pu être imposée au Costa Rica, il aurait fallu que le
Gouvernement costa-ricien ait pu déterminer l’existence d’un risque transfrontière significatif ou
important. Au moment où cette décision a été prise, le Costa Ri ca a tenu compte de la nature de
l’ouvrage envisagé et des possibles impacts sur la base de l’information que le Gouvernement
costa-ricien possédait sur le fleuve. La construction de la route fut par ailleurs décidée comme - 55 -
mesure d’urgence dans le context e que la Cour connaît et sur lequel il n’est pas besoin d’insister
ici. Le Gouvernement costa -ricien a tenu compte des éléments suivants : la nature modeste des
travaux envisagés, le fait qu’il existait déjà des tronçons de route dans le parcours considér é, le fait
que la seule conséquence transfrontière possible de ces travaux et de l’existence de la route serait
un apport sédimentaire dans le San Juan et le fait que le San Juan est un fleuve qui transporte une
forte charge sédimentaire. Ces facteurs ont conduit le Gouvernement costa-ricien à considérer que
l’apport des sédiments au fleuve serait imperceptible et, par conséquent, qu’il n’y avait aucun
risque de produire un dommage transfrontière significatif.
Pour répondre à la seconde question, il convient de préciser que nous avons affirmé que si le
Nicaragua considère que le Costa Rica a violé son obligation de conduire une EIE, il lui appartient
d’apporter la preuve d’une telle violation. Le Nicaragua aurait pu, par exemple, apporter les
éléments scientifiques requis par le Costa Rica dans sa note du 29 novembre 2011. Le Nicaragua
aurait pu le faire de manière bilatérale, que ce soit avant ou après cette note. Sur la base de
l’information scientifique produite par le Costa Rica dans son contre-mémoire et dans sa duplique,
et par lui-même ; il aurait pu l’établir aussi durant la présente procédure devant votre Cour. Le fait
qu’il ne l’a pas encore fait confirme l’évaluation du Costa Rica.
Now I turn to the question raised by Judge Greenwood, who asked the following question:
“If I heard Counsel for Costa Rica correctly this afternoon and if I did not,
my apologies I believe that he said to us that the Road constructed by Costa Rica
provided a service to riparians on both sides of the river . I w ould be grateful if
Costa Rica would confirm that it is indeed saying that the Road is available for use by
Nicaraguan riparians. And, secondly, if that is what Costa Rica is saying, would they
please explain the circumstances in which Nicaraguan riparian inhabitants have access
to the Road?”
Judge Greenwood understood me correctly. During my presentation I said that, unlike Nicaragua,
which has effectively suspended navigation by Costa Rica on the San Juan River, the road is not
only open for the benefit of Costa Rican riparians but also for the benefit of those riparians on the
other side of the river217. The Road at issue is a public road. Any person, lawfully on Costa Rican
territory, has access to it, and may use it. Costa Rica does not impose general restrictions upon the
constitutionally protected right of freedom of movement throughout its territory. As Costa Rica
21CR 2015/11, p. 49, para. 33 (Cohen). - 56 -
218
explained in the case concerning Navigational and Related Rights , riparians from the Nicaraguan
side of the river make use of Costa Rica’s basic services. As a matter of fact, children come from
Nicaragua to Costa Rican schools along the border as was explained by Dr. Del Mar last
219
Tuesday . These children, like any other riparian from the Nicaraguan bank, naturally need to
travel over the San Juan River in order to reach the Costa Rican bank and then have access to the
road. This is not an infrequent way to reach school by children in that area. Some road facilities
were aimed at easing access to schools. The principal aim of the bri dge constructed in Chorreras is
to facilitate access to the school in Chorreras de Cutris, this is along the road 22. Once completed,
the road will run from Los Chiles all the way to Delta Colorado. And there is already a road
connecting San Carlos de Nicaragua to Los Chiles in Costa Rica. The San Carlos de
Nicaragua/Los Chiles road provides Nicaraguans with direct access by land to the road at issue in
this case. It is also possible to reach the road by land from Castillo Viejo, Nicaragua.
Et je reviens, Monsieur le président, à ma langue préférée pour vous souhaiter, Mesdames et
Messieurs de la Cour, au nom de l’ensemble de la délégation du Costa Rica, un très agréable
week-end.
Le PRESIDENT : Merci, Monsieur le professeur. Un membre de la Cour souh aite poser des
questions aux Parties, je vais donc lui donner la parole. Je donne la parole à M. le juge Bhandari.
Judge BHANDARI: Thank you, Mr.President. The question is for both of the Parties.
In both the written and oral evidence presented in this case so far, the Court has seen
numerous examples from highly developed countries in support of the argument that Costa Rica
did not exercise care in constructing the Road along the San Juan River.
I would recall that Principle 23 of the Stockholm De claration and Principle 11 of the
Rio Declaration explicitly recognize that environmental standards applied in more developed
countries may present an “inappropriate or unwarranted economic or social cost for developing
218
Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), MCR, para. 4.54.
21CR 2015/4, p. 17, para. 25 (Del Mar) ; Certains activities, MCR, Vol. III, Annex. 122.
220
Photograph of pedestrian bridge over La Chorrera creek, RCR, CONAVI Report, December 2014, Ann. 11,
p. 40 (p. 248). - 57 -
countries”. These concerns are also contained in Commentaries 12, 13 and 17 of Article 3 of the
ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities.
In the light of these observations, I wish to pose the following questions to both the Parties:
1. How, if at all, should the authorities I have just mentioned be applied by the Court in assessing
whether Costa Rica exercised sufficient care in constructing the Road?
2. How much weight should the Court place on standards or “best practices” from highly
developed countries while evaluating Costa Rica’s construction of the Road?
3. What exactly is the standard of care that should be applied to Costa Rica in this case? For
instance, is it one of recklessness? Negligence? Due diligence? Strict Liability? Or something
else?
Thank you.
Le PRESIDENT : Merci. Le texte écrit de ces questions sera remis aux Parties à bref délai.
Les Parties sont priées d’y répondre lors de leur second tour de plaidoiries dans la présente affaire.
Voilà qui met fin à l’audience de cet après- midi et clôt le premier tour de plaidoiries. Les
audiences dans la présente affaires reprendront le jeudi 30 avril à 10 heures, pour entendre le
second tour de plaidoiries du Nicaragua. A l’issue de cette audience, le Nicaragua présentera ses
conclusions finales.
er
Le Costa Rica, pour sa part, prendra la parole le vendredi 1 mai, à 15 heures, pour son
second tour de plaidoiries. A la fin de l’audience, il présentera à son tour ses conclusions finales.
La Cour se réunira de nouveau mardi prochain, le 28 avril 2015 à 10 heures, pour entendre le
second tour de plaidoiries du Costa Rica dans l’autre affaire jointe à la présente, l’affaire relative à
Certaines activités menées par le Nicaragua dans la région frontalière (Costa Rica c. Nicaragua).
Je vous remercie. L’audience est levée.
L’audience est levée à 17 heures.
___________
Audience publique tenue le vendredi 24 avril 2015, à 15 heures, au Palais de la Paix, sous la présidence de M. Abraham, président, dans les affaires relatives à Construction d’une route au Costa Rica le long du fleuve San Juan (Nicaragua c. Costa Rica) ; Certaines activités menées par le Nicaragua dans la région frontalière (Costa Rica c. Nicaragua)