Summary of the Order of 13 December 2013

INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.icj-cij.org

Summary
Not an official document

Summary 2013/4
13 December 2013

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)

Request presented by Nicaragua for the indication of provisional measures

The Application and the Request for provisional measures (paras. 1-11 of the Order)

The Court begins by recalling that, by an Application filed with the Registry of the Court on
22 December 2011, the Republic of Nicaragua (hereinafter “Nicaragua”) instituted proceedings
against the Republic of Costa Rica (hereinafter “Costa Rica”) for “violations of Nicaraguan
sovereignty and major environmental damages on its territory”, contending, in particular, that
Costa Rica was undertaking construction works near the border area between the two countries
along the San Juan River, namely the construction of a road (Route 1856) (case concerning the
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),
hereinafter the “Nicaragua v. Costa Rica case”). In its Application Nicaragua further claimed that
the new road was causing ongoing damage to the river, on a large scale, “by the impetus it

inevitably gives to agricultural and industrial activities”.

At the time of filing of its Memorial, Nicaragua had requested the Court, inter alia, to
“decide proprio motu whether the circumstances of the case require[d] the indication of provisional
measures”. By letters dated 11 March 2013, the Registrar informed the Parties that the Court was
of the view that the circumstances of the case, as they presented themselves to it at that time, were
not such as to require the exercise of its power under Article 75 of the Rules of Court to indicate
provisional measures proprio motu.

The Court explains that, by two separate Orders dated 17 April 2013, the Court had joined

the proceedings in the Nicaragua v. Costa Rica case with those in the case concerning Certain
Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) (hereinafter the
“Costa Rica v. Nicaragua case”), which had been brought by Costa Rica against Nicaragua on
18 November 2010, accompanied by a Request for the indication of provisional measures. By an
Order of 8 March 2011 in the latter case, the Court had indicated certain provisional measures to
both Parties. Following successive requests by Costa Rica and Nicaragua for the modification of
that Order, the Court, by an Order of 16 July 2013, found that the circumstances, as they then
presented themselves to the Court, were not such as to require the exercise of its power to modify
the measures indicated in its Order of 8 March 2011. On 24 September 2013, Costa Rica filed with

the Registry a Request for the indication of new provisional measures in the Costa Rica v.
Nicaragua case. The full procedural history of the Costa Rica v. Nicaragua case is set out in the - 2 -

Court’s Order dated 22 November 2013 on Costa Rica’s Request for the indication of new
provisional measures in that case.

The Court states that, on 11 October 2013, Nicaragua filed with the Registry a Request for
the indication of provisional measures in the Nicaragua v. Costa Rica case, specifying that it was
not seeking the modification of the Order of 8 March 2011 in the Costa Rica v. Nicaragua case, but
rather “the adoption of new provisional measures linked with the Nicaragua v. Costa Rica case”.
Nicaragua further suggested that its Request be heard concurrently with Costa Rica’s Request for
the indication of new provisional measures at the same set of oral proceedings. By letter of

14 October 2013, Costa Rica objected to Nicaragua’s suggestion. By letters dated
14 October 2013, the Registrar informed the Parties that the Court had decided that it would
consider the two Requests separately.

The Court recalls that Nicaragua, in outlining the facts which led it to bring the present
Request, stated that Costa Rica “has repeatedly refused to give [it] appropriate information on the
road works” and “has denied that it has any obligation to prepare an Environmental Impact
Assessment or to provide such a document to Nicaragua”. In its Request Nicaragua contended that,

“[a]s the rainy season enters into its heaviest stage washing even greater quantities of
sediment and run-off into the river’s waters, Costa Rica has still not provided the
necessary information to Nicaragua, nor has it taken the necessary actions along the
160-km road to avoid or mitigate the irreparable damage that is being inflicted on the
river and its surrounding environment, including on navigation and the health and
wellbeing of the population living along its margins”.

The Court adds that, at the end of its Request, Nicaragua asked the Court:

“as a matter of urgency to prevent further damage to the River and to avoid
aggravation of the dispute, to order the following provisional measures:

(1) that Costa Rica immediately and unconditionally provides Nicaragua with the
Environmental Impact Assessment Study and all technical reports and assessments
on the measures necessary to mitigate significant environmental harm to the River;

(2) that Costa Rica immediately takes the following emergency measures:

(a) Reduce the rate and frequency of road fill failure slumps and landslides where
the road crosses the steeper hill slopes, especially in locations where failed or
eroded soil materials have been or could potentially be delivered to the
Río San Juan.

(b) Eliminate or significantly reduce the risk of future erosion and sediment
delivery at all stream crossings along Route 1856.

(c) Immediately reduce road surface erosion and sediment delivery by improving
dispersion of concentrated road runoff and increasing the number and
frequency of road drainage structures.

(d) Control surface erosion and resultant sediment delivery from bare soil areas

that were exposed during clearing, grubbing and construction activities in the
last several years.

(3) Order Costa Rica not to renew any construction activities of the road while the
Court is seised of the present case.” - 3 -

The Court recalls that, at the public hearings held on 5, 6, 7 and 8 November 2013, oral
observations were presented by the Agents and counsel of the Governments of Nicaragua and

Costa Rica.

The Court states that, at the end of its second round of oral observations, Nicaragua asked it
to indicate provisional measures in the same terms as included in its Request, while, at the end of
its second round of oral observations, Costa Rica stated the following:

“In accordance with Article 60 of the Rules of Court and having regard to the
Request for the indication of provisional measures of the Republic of Nicaragua and

its oral pleadings, the Republic of Costa Rica submits that,

for the reasons explained during these hearings and any other reasons the Court
might deem appropriate, the Republic of Costa Rica asks the Court to dismiss the
Request for provisional measures filed by the Republic of Nicaragua.”

The Court’s reasoning (paras. 12-38)

I. Prima facie jurisdiction (paras. 12-14)

The Court begins by observing that it may indicate provisional measures only if the
provisions relied on by the Applicant appear, prima facie, to afford a basis on which its jurisdiction
could be founded, but that the Court need not satisfy itself in a definitive manner that it has
jurisdiction as regards the merits of the case.

The Court notes that Nicaragua seeks to found the jurisdiction of the Court on Article XXXI
of the American Treaty on Pacific Settlement signed at Bogotá on 30 April 1948, as well as on both
Parties’ declarations of acceptance of the Court’s compulsory jurisdiction.

The Court considers that these instruments appear, prima facie, to afford a basis on which it
might have jurisdiction to rule on the merits of the case (cf. Certain Activities carried out by
Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of

8 March 2011, I.CJ. Reports 2011 (I), p. 18, para. 52).

The Court further notes that, within the time-limit set out in Article 79, paragraph 1, of the
Rules of Court, Costa Rica did not, moreover, contest the Court’s jurisdiction in the present
proceedings. In these circumstances, the Court finds that it may entertain the Request for the
indication of provisional measures submitted to it by Nicaragua.

II. The rights whose protection is sought and the measures
requested (paras. 15-23)

The Court recalls that its power to indicate provisional measures under Article 41 of the
Statute has as its object the preservation of the respective rights claimed by the parties in a case,
pending its decision on the merits thereof. It follows that the Court must be concerned to preserve
by such measures the rights which may subsequently be adjudged by it to belong to either party.

Therefore, the Court may exercise this power only if it is satisfied that the rights asserted by the
requesting party are at least plausible. Moreover, a link must exist between the rights which form
the subject of the proceedings before the Court on the merits of the case and the provisional
measures being sought. - 4 -

The Court notes that, according to Nicaragua, the rights which it seeks to protect are its
“rights of territorial sovereignty and integrity”, its “right to be free from transboundary harm” and

its “right to receive a transboundary environmental impact assessment from Costa Rica”.

The Court further states that, at this stage of the proceedings, it is not called upon to
determine definitively whether the rights which Nicaragua wishes to see protected exist; it need
only decide whether the rights claimed by Nicaragua on the merits, and for which it is seeking
protection, are plausible.

The Court initially observes that, under the 1858 Treaty of Limits between Costa Rica and

Nicaragua, the latter enjoys “dominion and sovereign jurisdiction over the waters of the San Juan
River” and that thus the river “belongs to Nicaragua”. The Court notes that the claimed right to be
free from transboundary harm is the principal right underpinning Nicaragua’s Request and that it is
derived from the right of a State to sovereignty and territorial integrity. The Court recalls in this
regard that “[t]he existence of the general obligation of States to ensure that activities within their
jurisdiction and control respect the environment of other States or of areas beyond national control
is now part of the corpus of international law relating to the environment”. The Court therefore

considers that a correlative right to be free from such transboundary harm is plausible. With
respect to Nicaragua’s claimed right to receive a transboundary environmental impact assessment
from Costa Rica, the Court states that it has had occasion to state in another context that,

“in accordance with a practice, which in recent years has gained so much acceptance
among States . . . it may now be considered a requirement under general international
law to undertake an environmental impact assessment where there is a risk that the

proposed industrial activity may have a significant adverse impact in a transboundary
context . . .”.

Accordingly, the Court considers that the rights for which Nicaragua seeks protection are
plausible.

The Court then turns to the issue of whether the provisional measures requested are linked to
the rights claimed and do not prejudge the merits of the case.

The Court recalls that the first provisional measure requested by Nicaragua is that Costa Rica
“immediately and unconditionally” provide it with an Environmental Impact Assessment Study and
all technical reports and assessments on the measures necessary to mitigate significant
environmental harm to the San Juan River. The Court observes that this request is exactly the same
as one of Nicaragua’s claims on the merits contained at the end of its Application and Memorial in
the present case. A decision by the Court to order Costa Rica to provide Nicaragua with such an
Environmental Impact Assessment Study as well as technical reports at this stage of the

proceedings would therefore amount to prejudging the Court’s decision on the merits of the case.

The Court notes that the second provisional measure requested by Nicaragua is that
Costa Rica immediately take a number of emergency measures in order to reduce or eliminate
instances of erosion, landslides and sediment delivery into the San Juan River as a result of the
construction of the road. The Court considers that any instance of this kind would be likely to
affect Nicaragua’s claimed right to be free from transboundary harm. Therefore, a link exists

between Nicaragua’s claimed rights and the second provisional measure sought.

Finally, the third provisional measure sought by Nicaragua is that Costa Rica be ordered not
to renew any construction activities with respect to the road while the Court is seised of the present
case. In this regard, the Court considers that, should Costa Rica’s construction activities continue,
in particular on the 41-km stretch of road running along the San Juan River upstream from its
intersection with the San Carlos River, there is a possibility that Nicaragua’s right to be free from

transboundary harm, which it seeks to protect by the second provisional measure requested, may - 5 -

also be affected. The Court thus concludes that a link exists between Nicaragua’s claimed rights
and the third provisional measure sought.

III. Risk of irreparable prejudice and urgency (paras. 24-38)

The Court recalls that, pursuant to Article 41 of its Statute, it has the power to indicate
provisional measures when irreparable prejudice could be caused to rights which are the subject of
judicial proceedings, and that this power will be exercised only if there is urgency, in the sense that
there is a real and imminent risk that irreparable prejudice will be caused to the rights in dispute

before the Court has given its final decision.

The Court considers that, on the basis of the evidence adduced, Nicaragua has not
established in the current proceedings that the ongoing construction works have led to a substantial
increase in the sediment load in the river. It notes that Nicaragua did not contest the statement of
Costa Rica’s expert, Professor Thorne, that, even according to the figures provided by Nicaragua’s
expert, Professor Kondolf, the construction activities are only contributing 1 to 2 per cent of the
total sediment load in the San Juan River and 2 to 3 per cent in the lower San Juan River. The

Court is of the view that this seems too small a proportion to have a significant impact on the river
in the immediate future. It observes, moreover, that the photographic and video evidence
submitted by Nicaragua does nothing to substantiate Nicaragua’s allegations relating to increased
sedimentation levels. Neither has the Court been presented, at this stage, with evidence as to any
long-term effect on the river by aggradations of the river channel allegedly caused by additional
sediment from the construction on the road. Finally, 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.

The Court accordingly finds that Nicaragua has not shown that there is any real and
imminent risk of irreparable prejudice to the rights it invokes.

The Court concludes from the foregoing that the Request for the indication of provisional
measures by Nicaragua cannot be upheld.

Having concluded that no provisional measures should be indicated, the Court observes
nevertheless that Costa Rica acknowledged during the course of the oral proceedings that it has a
duty not to cause any significant transboundary harm as a result of the construction works on its
territory, and that it would take the measures that it deemed appropriate to prevent such harm. The
Court further observes that Costa Rica has in any event recognized the necessity of remediation
works, in order to mitigate damage caused by the effects of poor planning and execution of the road

works in 2011, and has indicated that a number of measures to that end have already been
undertaken. Finally, the Court notes that Costa Rica announced, during the same oral proceedings,
that, with its Counter-Memorial, due to be filed by 19 December 2013, it would submit what it
described as an “Environment Diagnostic” study covering the stretch of the road running along the
south bank of the San Juan River.

The Court ends by stating that the decision given in the present proceedings in no way

prejudges any questions relating to the merits or any other issues to be decided at that stage. It
leaves unaffected the right of the Governments of Nicaragua and Costa Rica to submit arguments
in respect of those questions. - 6 -

Operative part (para. 39)

The full text of the final paragraph of the Order reads as follows:

“For these reasons,

THE C OURT ,

Unanimously,

Finds that the circumstances, as they now present themselves to the Court, are
not such as to require the exercise of its power under Article 41 of the Statute to
indicate provisional measures.”

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