EMBASSY OF NICARAGUA
THE HAGUE
WRITTEN OBSERVATIONS ON THE REQUEST BY COSTA RICA FOR THE
MODIFICATION OF THE COURT'S ORDER OF 8 MARCH 2011 IN THE
CASE CONCERNING CERTAIN ACTIVITIES CARRIED OUT BY NICARAGUA
IN THE BORDER AREA (COSTA RICA v. NICARAGUA)
I. INTRODUCTION
1. On 21 May 2013, Costa Rica filed a Request for the Modification of the Court's Order of 8
March 2011 on Provisional Measures in the case conceming Certain Activities carried out by
Nicaragua in the Border Area (Costa Rica v. Nicaragua) (hereina:fter the"Certain Activities
case"), based on Article 41 of the Statute of the Court and Article 76, paragraph 1, of the Rules
of the Court.
2. Costa Rica claims that its request to "Modify the Court's Order on provisional measures of 8
March 2011 is prompted by Nicaragua's sending to the area indicated by the Court in its Order
(the Area) and maintaining thereon large numbers of persans, and by the activities undertaken
by these persans affecting that territory and its ecology," 1 thus claiming a change in the
sitUation?
3. Costa Rica's assertions are groundless. There has been no change in the situation requiring a
modification of the Court's Order in the way, or for the reasons, alleged by Costa Rica, and
there are no grounds to assert that Nicaragua has breached any of the provisional measures
indicated by the Court on 8 March 2011. 3 The only pertinent changes that have taken place
since thatOrder are: (1) Costa Rica's construction of a 160 km-long road along the right bank of
the San Juan River, which has caused, and is still causing, irreparable damage to the River and
its surrounding ecosystem 4,including the area in dispute as defined in the Order of 8 March
1
Costa Rica's Request of 21 May 2013 for the modification of the Court's Order of 8 March 2011 on
provisional measures, p.1, para.2.
2 Costa Rica's Request of21 May 2013 for the modification of the Court's Order of 8 March 2011 on
3rovisional measures, p.1, para.4.
See Nicaragua's Counter-Memorial in the case conceming Certain activities carried out by Nicaragua in
the border area (Costa Rica v. Nicaragua) (hereinafter "NCM"), Chapter 7.
4See letter from Nicaragua to the ICJ, 23 July 2012, Reference 23072012-01; See also letter from
Nicaragua to the ICJ, 28 February 2013, Reference 28022013-01; See also NCM Chapter 9; See EMBASSY OF NICARAGUA
THE HAGUE
5
2011 and (2) the Joinder of proceedings • These developments warrant modification of the
6
Order in the ways requested by Nicaragua below but not the modifications requested by Costa
Rica.
II. JURISDICTION OF THE COURT
4. In its request, Costa Rica recalls that Nicaragua has not challenged the jurisdiction of the Court
in the present case, which is invoked pursuant to Article XXXI of the American Treaty on
Pacifie Settlement of Disputes of30 Apri11948 (the Pact ofBogotâ.) and in accordance with the
declarations of acceptance of the Court's compulsory jurisdiction pursuant to Article 36(2) of
the Statute of the Court made respectively by Costa Rica on 20 February 1973 and by Nicaragua
on 24 September 1929. 7
5. Nicaragua requests the modification or adaptation of the 8 March 2011 Order to the
circumstances of the joined cases on the samejurisdictional basis.
III. COSTA RICA'S REQUEST FOR THE MODIFICATION OF
PROVISIONAL MEASURES
6. On 8 March 2011, the Court indicated the following four provisional measures:
"(1) Unanimously,
Each Party shall refrain from sending to, or maintaining in the disputed
territory, including the cano, any personnel, whether civilian, police or security;
(2) By thirteen votes to four,
Memorial of Nicaragua in the case conceming Construction of a raad in Costa Rica along the San Juan
River (Nicaragua v. Costa Rica)(hereinafter NM),Chapter 3: See also IV (a) 1. below.
5See the two separate Orders of the Court dated 17 April2013, available at http://www.icj
cij.org/docketlfiles/150/17332.pdf and http://www.icj-cij.org/docketlfiles/152/17354.pdf;lso IV (a)
2. below.
6See section IV below.
7Costa Rica's Request of 21 May 2013 for the modification of the Court's order of 8 March 2011 on
provisional measures, p.1, para.3. EMBASSY OF NICARAGUA
THE HAGUE
Notwithstanding point (1) above; Costa Rica may dispatch civilian personnel
charged with the protection of the environment to the disputed territory,
including the cano, but only in so far as it is necessary to avoid irreparable
prejudice being caused to the part of the wetland where that territory is situated;
Costa Rica shall consult with the Secretariat of the Ramsar Convention in
regard to these actions, give Nicaragua prior notice of them and use its best
endeavours to fmd common solutions with Nicaragua in this respect;
(3) Unanimously,
Each Party shall refrain from any action, which might aggravate or extend the
dispute before the Court or make it more difficult to resolve;
(4) Unanimously,
Each Party shall inform the Court as to its compliance with the above
provisional measures." 8
7. In its request for the modification of these provisional measures, Costa Rica asserts9:
"The activities being carried out in the area by Nicaraguan nationals include the
following:
(a) deliberately interfering with a site visit, which was conducted in accordance
with the Court's Order of 8 March 2011, by harassing and verbally abusing
technical Costa Rican personnel charged with protection of the environment;
(b) carrying out works in an attempt to keep the artificiacano open;
(c) engaging in the uncontrolled planting oftrees in the Area;
(d) raising of cattle in the Area; and
(e) erecting wire fences in the Area to the north of and running alongside the
cano."
8
I.C.J., Order, 08 March 2011, Certain Activities carried out by Nicaragua in the Border Area (Costa
Rica v. Nicaragua), Requestfor the indication ofprovisional measures, para. 86.
9 Costa Rica's Request of 21 May 2013 for the modification of the Court's Order of 8 March 2011 on
provisional measures,p. 3-4, para.8 (footnote omitted) EMBASSYOFNICARAGUA
THEHAGUE
8. As an initial matter, Nicaragua caUs the attention of the Court to the fact that Costa Rica's
10
assertions in the present request were first raised in its Memorial in the Certain Activities case
and thoroughly refuted in Nicaragua's Counter Memorial Il. Thus, the a11egationsare not new
and do not reflect any change in what Costa Rica bas been a11egingsince shortly after the
Court's Order was issued over two years aga. As a result, they are more properly addressed to
the merits and are not matters of urgency justifying a request for the modification of the existing
OrCier.Costa Rica cannot obtain through (changed) interim measures what it precisely claims in
12
its Memorial.
9. Nonetheless, it is useful to reca11what Nicaragua bas always said in response to the a11egations
that Costa Rica bas now placed before the Court as a matter of "real urgency".
10. As Nicaragua bas stated on other occasions, 13 a11Nicaraguan military personnel were withdrawn
from the disputed territory by December 2010/ 4 and since then Nicaragua bas acted with due
diligence and taken appropriate measures to ensure that the disputed territory remains free of
Nicaraguan personnel. In short, Nicaragua bas fu11yand peacefu11yimplemented the measures
indicated by the Court.
11. As for the presence of members of the Guardabarranco Environmental Movement, Nicaragua
15
bas repeatedly emphasized that Costa Rica's attitude is not only surprising but also
contradictory vis-à-vis its professed concern for the environrnent. It should be noted that in its
request for the indication of provisional measures, Costa Rica requested the "Immediate and
10See Costa llica's Memorial in the case conceming Certain Activities carried out by Nicaragua in the
Border Area (Costa Rica v. Nicaragua) (hereina:fterCRM), Chapter VI.
11See NCM, Chapter 7.
12See CRM, pp. 267-288, paras. 6.7-6.44 and pp. 297-298, para. 7.3 and p. 299, para. 7.6. See e.g. I.C.J.,
Order, 13 September 1993, Application of the Convention on the Prevention and Punishment of the Crime
of Genocide, Provisional Measures, I.C.J. Reports 1993, p. 347, para. 48.
13See NCM, pp.385-406, paras. 7.1-7.52.
14Letter.from H.E. Carlos JoséArgüello G6mez to the Registrar of the ICJ, Ref: REF: 18012011-01, 18
January 2011. "No Nicaraguan troops are currently stationed in the area in question and Nicaragua does
not intend to establish a military post in the future. There was a military presence in the area for a period
of six weeks during which the cano was cleaned, but that was only solely for the protection of workers
conducting this operation. Nicaragua has no intention to station agents in that area. The only operation
that is currently being conducted there is the replanting of trees. The Ministry of Environrnent of
Nicaragua (MARENA) will periodically send inspectors on site to monitor the process ofreforestation, as
well as changes that may occur in the region, including the Harbour Head Lagoon"; See also NCM,
15apter 7, section B, p.402.
See NCM, p. 392, para. 7.20. EMBASSY OF NICARAGUA
THE HAGUE
unconditional withdrawal of al! Nicaraguan troops from the unlawfully invaded and occupied
Costa Rican territories. " 16 It did not request the withdrawal of private individuals. Likewise, in
its submissions during the second round of the oral hearing on provisional measures, Costa Rica
asked the Court to indicate that Nicaragua was prohibited from "station[ing] any of its troops or
17
other personnel" in the disputed area, again choosing not to request that private individuals be
barred from entering.the area. However, Costa Rica has now attempted to rewrite what is a very
clear use of the ward "personnel" in the Court's Order of 8 March 2011 by reinterpreting that
ward to imply that the Court ordered not only employees or staff of the govemment, but also
private individuals, such as the members of the Guardabarranco Environmental Movement, not
18
to enter the area in dispute.
12. In this vein, Costa Rica's present request that the existing Order of the Court be modified to caU
for "the immediate and unconditional withdrawal of al! Nicaraguan persans" confirms that the
Court did not, in its 8March 2011 Order, prohibit the entrance of private persons into the area in
dispute. Therefore, it cannat be inferred from the Court'sOrder that the Parties had an obligation
to "patrol and impede private individuals from entering the area in dispute," 19particularly when
these individuals are not criminals and, far from having shawn any intent to cause damage, are
interested in the protection and preservation of the environment in the entire river area.
13. Indeed, paragraph 78 of the 8 March 2011 Order demonstrates that the Court considered the
issue of private individuals entering and undertaking activities in the disputed area, and decided
to require the Parties to monitor the area and cooperate to prevent only criminal activity. Thus,
the presence of private individuals is not a new issue, and the Court has already fashioned an
Order establishing the Parties' limited obligations regarding such individuals.
14. The members of the Guardabarranco Environmental Movement are private individuals, as
Costas Rica concedes. The movement is neither part of the Govemment of Nicaragua nor
20
acting under the Govemment's direction or control. The alleged bases for Costa Rica's claims
to the contrary are limited to statements by Nicaraguan officiais and diplomatie notes expressing
16
Request for the Indication of Provisional Measures submitted by the Republic of Costa Rica, 18
November 2011, available at http://www.icj-cij.org/docket/files/150/1628l.pdf
112 January 2011 Submissions of Costa Rica, a). available at http://www.icj-
cij.org/docket/files/150/16286.pdf
18
19See NCM, p. 390-392, paras. 7.15-7.20.
NCM, p.391, para 7.17-7.18.
20 See NCM, p. 392-398, paras. 7.21-7.23. EMBASSY OF NICARAGUA
THE HAGUE
what is only logical: that Nicaraguan environmentalists are in the best position to take care of
Nicaragua's natural heritage 21• This heritage encompasses the whole San Juan de Nicaragua
River and its surroundings, including the area in dispute, which is being threatened by Costa
Rica's construction of a 160 km road without having undertaken a prior Environmental Impact
2
Study or prepared a preventative Environmental Management Plan/ and without any of the
3
other technical documents required by international law or regional and bilateral agreements?
15. Regarding the allegedly harmful activities that Costa Rica attributes to the members of the
Guardabarranco Environmental Movement, Nicaragua wishes to make the following remarks:
(a) Deliberately interfering with a site visit, which was conducted in
accordance with the Court's Order of 8 March 2011, by harassing and
verbally abusing technical personnel.
16. Contrary to Costa Rica's assertion, on 5-7 April 2011, a joint Costa: Rica/RAMSAR mission
visited the disputed territory,24and the Vice Minister of the Environment of Costa Rica publicly
proclaimed the mission a success:
"the visit fulfilled its objective, we could corioborate much of the secondary
25
information that we have and we have procured other first-hand information~"
This contemporaneous official statement, which made no mention of interference by Nicaraguan
nationals, contradicts Costa Rica's request for the modification of the Court's existing Order, in
which Costa Rica now alleges that Nicaraguan nationals "deliberately interfer[ed] with a site
visit."26
21
22See Statement by President Ortega cited in NCM, p. 396-397, para. 7.32.
Note from the Minister of Foreign Affairs of Nicaragua to the Minister of Foreign Affairs and Worship
of Costa Rica Ref: MRE/DM-AJ/127-03-13, 5 March 2013 (Annex 2 Diplomatie Correspondence to the
Letter from Costa Rica to the ICJ,5 March 2013, Reference ECRPB-016-13).
23
See NM Submission, p.251-253.
24See NCM para.7.38
25Ibid
26
Costa Rica's Request of 21 May 2013 for the modification ofthe Court's order of 8 March 2011 on
provisional measures, p. 3, para.8 (a) (footnote omitted). EMBASSY OF NICARAGUA
THE HAGUE
17. On 30 January 2012, Costa Rica carried out another visit in the disputed territory. Costa Rica
informed the Court of this visit in the report subrnitted on 3 July 2012? As the Court can see,
nothing in Costa Rica's report indicates that the visit was blocked or its personnel harassed or
verbally abused, nor indeed that the visit was in fact "necessary to avoid irreparable prejudice
being caused to the part of the wetland where that territory is situated" as the Court's Order
requires.
18. Likewise, on 7 March 2013, Costa Rica carried out a third visit in the disputed territory. Costa
Rica informed the Court about this visit in the report it subrnitted on 15 March 2013, stating that
"A team ofnine professionals working with Costa Rica'sMinistry of Environment carried out a
site inspection"28 in the disputed area. Again, nothing in Costa Rica's report suggests that this
visit was blocked or interfered with; to the contrary, Costa Rica reaffmns that the mission was
successfully "carried out" ?9
(b) Carrying out works in an attempt to keep the artificial cafio open and
engaging in the uncontrolled planting of trees in the Area.
19. In its letter subrnitted to the Court on 15 March 2013 requesting the modification of provisional
rneasures, Costa Rica repeatedly quotes and heavily relies upon an article written by Mr. Tirn
Rogers of the Nicaragua Dispatch on 26 Septernber 2012. Although the staternents in this
article do not corne close to constituting conclusive evidence of Costa Rica's clairns, it must be
pointed out that Costa Rica ornits the following staternents by Mr. Rogers:
"The values that the camp tries to inculcate are also not rnuch different either. The
kids learn to take care of the environrnent, socialize with their fellow carnpers and
respect their country....30
Mr. Rogers continues:
27
Letter from H.E. Mr. Jorge Urbina-Ortega, co-Agent of Costa Rica, to the Registrar of the ICJ, Ref:
ECRPB-025-12, 3 July 2012, p. 267 (NCM, Vol. III, Annex 66).
28See Letter from Costa Rica to the ICJ, 15 March 2013, Reference ECRPB-016-13.
29See Letter from Costa Rica to the ICJ, 15 March 2013, Reference ECRPB-016-13.
30
See "Greytown Journal; Camp Harbour Head' by Tim Rogers, September 26, 2012. Annexed (not
listed inthe certification of the annexes) to the Letter from Costa Rica to the ICJ, 15 March 2013,
Reference ECRPB-016-13. EMBASSY OF NICARAGUA
THE HAGUE
"Despite the concems of Costa Rican authorities,I found no indication that the kids
staying on the island were anything other than normal teenagers who were excited
to be away from home and appreciative of an ovemight camp experience to
socialize with like-minded youth, leam about the environment and see a different
31
part oftheir country."
20. The absence of harm to the disputed area has been confrrmed by Costa Rica's highest
authorities in charge of protection of the environment. For example, on 6 April2011, during the
frrst joint Costa Rica!RAMSAR mission, the Costa Rican Vice-Minister of the Environment
stated that the joint mission had observed vegetation growth in the area of the cano. She
concluded that "the wetland tends to recover quickly" 32 as long as "no intervention takes
place, " thereby reaffrrming what has been said by Nicaragua, namely that the clearing of the
cano had ceased, and that no harm to the environment had been caused by Nicaragua's prior
activities.
21. Moreover, Professor Thome, an expert retained by Costa Rica, noted during his July 2011 site
visit that "vegetation regrowth" began immediately after Nicaragua had finished its works to
clear the cano. He also observed the "recovery of the vegetation on the banks, bars, and berms"
34
of the cano and that "the shrubs and understory appearedto be recovering from disturbance."
22. Likewise, UNITARIUNOSAT, acting under contract with Costa Rica, stated in a report
dated 8November 2011 that:
"A review of vegetation cover changes in the immediate vicinity of the channel
[cano] between the San Juan and Laguna Los Portillos indicated no significant
instances of deforestation or other measurable areas of vegetation cover removal
between 7 June and 25 October 2011." 35
31Ibid.
32 Excerpt of the Statement by the Deputy Minister of Environment of Costa Rica, Ana Lorena Guevara,
in the radio program "Nuestra Voz" (Our Voice) hosted by Amelia Rueda, April 6, 20ll(NCM, Vol. II,
33nex25).
34Ibid.
See NCM, p. 249, para. 5.220 (footnote omitted).
35 UPDATE 4: Morphological & Environmental Change Assessment for the San Juan River, Costa Rica
(covering the period from 7 June to 25 October 2011), Annex150 to CRM. EMBASSY OF NICARAGUA
THE HAGUE
23. In the same report UNITARIUNOSAT also pointed out that "the water flow through this
channel continued to fall since 7 June 2011 but it appears that the water flow may have actuaily
stopped altogether, with significant stretches of the channel apparently dry or covered with
surface vegetation or loose debris." 36 UNITARIUNOSAT also concluded that there was a "clear
narrowing of the channel's width from a maximum of 14 meter on 22 February to only 3 meter
... as on 7 June 2011." 37This negates Costa Rica's allegation that Nicaraguan nationals were
engaged in the clearing of the channel.
24. Of particular significance, however, is the observation in the November 2011
UNITARIUNOSAT report of a "highly probable ... trend of falling water flow through this
channel over the course of the last six to eight months, Iikely due tothe continued accumulation
of fluvial sediments including those from bank erosion as weil as the lack of maintenance
dredging." 38 Costa Rica ignores this key observation, which demonstrates that:
• The caiio has been closing, and therefore cannot have been the subject of further efforts
to clean it; and
• The reason the cano has been closing is the "continued accumulation of fluvial
sediments including those from bank erosion as weil as the lack of maintenance
dredging." 39
25. In other words, the closing of the caiio is caused by the accumulation of sediments from erosion
of the river bank and adjacent areas. It is noteworthy that after severa! site visits Costa Rica has
not said a word on this matter. UNITARIUNOSAT's observation highlights the fact that the
changes occurring in the disputed area are due to the silting process that has been substantiaily
augmented by the sediments and debris deposited in the river by Costa Rica's road construction
works along the right bank of the river.
26. Thus, the evidence shows that, since the Court's Order of 8 March 2011, there has not been any
clearing or other activity carried out by Nicaraguan personnel in the cano, which has closed up
36
37 Ibid.
38 Ibid.
Ibid.
39 Ibid. EMBASSY OF NICARAGUA
THE HAGUE
due to the accumulation of sedimentation in the entire area around the cafio, large deposits of
which are attributable to Costa Rica's road construction activities.
27. As previously stated by Nicaragua, the Guardabarranco Environmental Moverrient is a private
organization that carries out environmental sustainability programs and environmental
campaigns for raising awareness throughout Nicaraguan tenitory, as is evidenced in the
40
documents that Costa Rica attaches to its request. The San Juan de Nicaragua River is no
exception when it cornes to their efforts, which have been canied out since 2009, long before
the present case was submitted to the Court, andthe Order on provisional measures was issued.
28. Costa Rica claims that over 6,000 youths have visited the Area 42•The evidence in support is a
news item that only states that over 6,000 youth have canied out activities in the San Juan
River 43• Thus, the work undertaken by the members of the movement is being performed along
the entire River, all of which is part of an internationally protected wetland that is being
seriously threatened by the construction of the road along the Costa Rican bank. 44 In the news
report attached by Costa Rica toits request for modification of the 8 March 2011 Order, it is45
remarked there has been an increase in interest regarding the entire River area making the
activities of the Guardabarranco Environmental Movement "more visible," 46 particularly
because the "main purpose of these trips is to reverse the damage caused by Costa Rica to over
40
El19 Digital, Nicaragua "Movimiento Guardabarranco, fightingfor Nature in Nicaragua", March 17,
2013 (Annex CRPM-3 to Costa Rica's Request of21 May 2013 for the modification of the Court's order
of 8 March 2011 on provisional measures) ; see also Note from the Minister of Foreign Affairs of
Nicaragua to the Minister of Foreign Affairs and Worship of Costa Rica Ref: MRE/DM-AJ/127-03-13, 5
March 2013 (Annex 2 Diplomatie Correspondence to the Letter from Costa Rica to the ICJ, 15 March
2013, Reference ECRPB-016-13).
41 El19 Digital, Nicaragua "Movimiento Guardabarranco, fightingfor Nature in Nicaragua", March 17,
2013 (Annex CRPM-3 to Costa Rica's Request of21 May 2013 for the modification of the Court's order
42 8 March 20Il on provisional measures).
Costa Rica's Request of21 May 2013 for the modification of the Court's order of 8 March 2011 on
provisional measures, p. 2, para.7.
43 El19 Digital, "Cleaning and reforestation activities to beperformed, New Group heads to San Juan
River", Annex 2 Translation of Media Reports, attached to Letter from Costa Rica to the ICJ, 15 March
2013, Reference ECRPB-016-13.
44See paras.23-25 above.
45 El19 Digital, Nicaragua "Movimiento Guardabarranco, fightingfor Nature in Nicaragua", March 17,
2013 (Annex CRPM-3 to Costa Rica's Request of21 May 2013 for the modification of the Court's order
of 8 March 20Il on provisional measures).
46 El19 Digital, Nicaragua "Movimiento Guardabarranco,fightingfor Nature in Nicaragua", March 17,
2013 (Annex CRPM-3 to Costa Rica's Request of21 May 2013 for the modification of the Court's order
of 8 March 2011 on provisional measures); see also Note from the Minister of Foreign Affairs of
Nicaragua to the Minister of Foreign Affairs and Worship of Costa Rica Ref: MRE/DM-AJ/127-03-13, 5
March 2013 (Annex 2 Diplomatie Correspondence to the Letter from Costa Rica to the ICJ, 15 March
2013, Reference ECRPB-016-13). EMBASSY OF NICARAGUA
THE HAGUE
23 thousand species of flora and fauna surrounding the riverbed, as they build a highway on the
southern bank." 47
29. In any case, there is no uncontrolled planting oftrees in the area, as Costa Rica states, but rather
a group of young people undertaking environmental sustainability prograrns that are in no way
harrnful to the environrnent. The news articles attached to Costa Rica's request describes the
activities of these young people as "... a learning process, covering both theory and practice,
regarding this important river that borders with Costa Rica ... "; and "... performing cleaning
and reforestation activities on the banks of the Nicaraguan river... " 49•
(c) Raising of cattle and erecting wire fences in the Area
30. Costa Rica asserts that activities allegedly carried out in the disputed area by Nicaraguan
nationals include the raising of cattle and the erecting of wire fences to the north of, and running
alongside, the cafio. In support of this assertion Costa Rica lirnits itselfto stating:
".... the Government of the Republic of Nicaragua has continued its policy of
rnaintaining its citizens in the area, whose activities include raising cattle in the
protected wetland, arnong others. In addition to the constant presence of
Nicaraguan citizens in the area, Costa Rica recently becarne apprised of the fact
that a wire fence has been erected to the north and running alongside part of the
50
cafio...."
31. Apparently Costa Rica is suggesting that this creates a new situation in the area. This is rather
surprising, considering that Costa Rica's own Memorial in the Certain Activities case cites the
Annotated Ramsar List of Wetlands of international Importance: Costa Rica, which describes
the region as follows:
47
El19 Digital, Nicaragua "Movimiento Guardabarranco, fightingfor Nature in Nicaragua", March 17,
2013 (Annex CRPM-3 to Costa Rica's Request of21 May 2013 for the modification of the Court's order
of 8 March 2011 on provisional measures).
48Ibid.
49
El19 Digital, "Cleaning and reforestation activities to beperformed, New Group heads to San Juan
River" attached to Letter from Costa Rica to the ICJ, 15 March 2013, Reference ECRPB-016-13.
50See letter from Costa Rica to the ICJ, 21 November 2012, Reference ECRPB-045-12. EMBASSY OF NICARAGUA
THE HAGUE
"The area is used largely for agriculture, and cattle ranching, tourism and fishing ... " 51
32. As indicated by Costa Rica in its Report to RAMSAR on 2011, the southem portion ofthe cafio
52
is located in "an area of livestock pasture." On this point, Nicaragua highlighted in its
Counter-Memorial in the Certain Activities case that "land that has been subjected to such
53
uses can hardly be described as undisturbed."
33. The technical report undertaken by the Ministry of Environment, Energy and
Telecommunication of Costa Rica, annexed to Costa Rica's Memorial in the Certain Activities
case, 54 acknowledged that the forest around the cafio was already cleared for agricultural
purposes: "[F]rom 1997 to 2011 ... there has been an expansion of the agricultural frontier to
make way for sparsely forested pastures ... [T]his aspect is not a direct consequence of the 2010
55
activities in the wetland...."
34. Costa Ricf,l'sMemorial also acknowledges that it has allowed the Humedal Caribe Noreste to be
56
"used largely for agriculture," as well as "cattle ranching". The same is true of the disputed
area, which according to Costa Rica's October 2011 report to Ramsar, has experienced "an
expansion of the agricultural frontier to make way for sparsely-forested pastures." 57
35. In conclusion, and as indicated above, it is clear that the existence of cattle and fences in.the
area is a situation that existed long before the dispute with Costa Rica over the area arose, and
that the activities in question are not attributable to Nicaragua.
(d) Costa Rica's requests lack any urgency
36. To date, Costa Rica has sent three missions (5-7 April 2011, 30 January 2012 and 7 March
2013) into the disputed territory as defined in the Court's Order of 8 March 2011. However,
58
Costa Rica, in a breach of the Order, has never justified those visits in accordance with the
51CRM, pp. 38-39, para.2.13.
52Costa Rican 2011 Report to Ramsar, p. 56 (CRM, Vol. IV, Annex 155), p.235.
53
54See NCM, p. 249, para. 5.219 (footnote omitted).
CRM, Vol. IV, Annex 155.
55CRM, Vol. IV, Annex 155, p. 278.
56CRM, pp. 38-39, para. 2.13, quotingAnnotatedRamsar list (CRM, Vol. IV, Annex 119).
57
Costa Rican 2011 Report to Ramsar, p. 56 (CRM, Vol. IV, Annex 155).
58See NCM, p.439, paras. 9.46-9.63. EMBASSY OF NICARAGUA
THE HAGUE
Court's Order, which specifies not only that Costa Rica must provide prior notice to Nicaragua
and endeavor to fmd common solutions with Nicaragua, but also that visits may only be carried
out if there is a threat of irreparable prejudice to the disputed territory. Costa Rica has not
satisfied these conditions in regard to any of its three visits to the area.
37. Costa Rica asserts that its request for the modification of the Court's Order of 8 March 2011 is
."of real urgency". 59 Nonetheless, after three technical visits to the site, Costa Rica has not
demonstrated that there is any "serious threat" 60 to the disputed territory, nor any "incidents
61
liable to cause irremediable harm in form ofbodily injury or death."
38. As for the frrst visit, conducted in April2011, Costa Rica explained on 30 March 2011 that "the
62
purpose of the mission [was] to make a preliminary evaluation of the situation of the wetland."
No "serious threat" was alleged and, indeed, no such threat could reasonably have been alleged,
given that the Court had found a few weeks before, in its 8 March 20Il Order:
"it cannat be concluded at this stage from the evidence adduced by the Parties
that the dredging of the San Juan river is creating a risk of irreparable prejudice
to Costa Rica's environment orto the flow of the Colorado river; ... nor has it
been shawn that, even if there were such a risk of prejudice to rights Costa Rica
63
claims in the present case, the risk would be imminent. "
39. Costa Rica's second visit took place on 30 January 2012 and "had the purpose of surveying the
area,"64 "evaluat[ing] any progress on the recovery of the area," 65 and determining "additional
actions needing to be taken." 66In its Counter Memorial in the Certain Activities case, Nicaragua
indicated that "[t]his visit ... lies outside the scope of the second provisional measure ordered by
the Court. This visit appears to be even lessjustified considering that in April 2011, during the
59
Costa Rica's Request of 21 May 2013 for the modification of the Court's arder of 8 March 2011 on
provisional measures, p. 7, para.18
60Ibid
61
62Ibid.
Diplomatie Note from the Ministry of Foreign Affairs of Costa Rica to the Minister of Foreign Affairs
ofNicaragua, Ref: DM-DVM-217-2011, 30 March 2011 (NCM, Vol. III, Annex 68).
63
I.C.J., Order, 28 March 2011, Certain Activities carried out by Nicaragua in the Border Area (Costa
Rica v. Nicaragua), Requestfor the indication ofprovisional measures, para. 82.
64Letter from H.E. Mr. Jorge Urbina-Ortega, co-Agent of Costa Rica, to the Registrar of the ICJ, Ref:
ECRPB-025-12, 3 July 2012 (NCM, Vol. III, Annex 66.).
65
66Ibid.
Ibid. EMBASSY OF NICARAGUA
THE HAGUE
first mission, the Costa Rican Vice-Minister of Environment acknowledged an amelioration of
the environmental situation of the area, and in November 2011, UNITAR reported that 'no
significant instances of deforestation or other measurable areas of vegetation cover removal'
67
occurred in the area in dispute."
68 69
40. Costa Rica's third visit was "carried out" on 7 March 2013, and the only report presented by
Costa Rica in relation to that visit seems to be intended to inform the Court regarding the
presence of members of the Guardabarranco Environmental Movement. Indeed, Costa Rica
70
dedicated three full pages to describing the works of "teens interested in environmentalism"
who "spend a full week at the camp working on environmental projects such as reforestation.'m
It is only at the very end of the four-page report that Costa Rica includes information regarding
the 7 March 2013 visit, and what is actually said confirms that the visit was successful and that
there was nothing to report regarding a "serious threat" 72 to the disputed area or "incidents liable
to cause irremediable harm in form of bodily injury or death.'m
41. In conclusion, after severa}visits led contrary to the provisions of the Order, Costa Rica has not
74
been able to show the slightest evidence of "urgency" or any "irreparable prejudice" to the
area, rouch less any change of "situation requiring the modification of the Court's Order." 75
Furthermore, the fact that, to date, neither Ramsar nor Costa Rica has issued any report
regarding the threat of irreparable prejudice to the area confirms that such threat exists only in
Costa Rica'simagination.
67NCM, p. 443, paras. 9.55-9.56 (footnote omitted).
68See Letter from Costa Rica to the ICJ, 15 March 2013, Reference ECRPB-016-13, p.4.
69
Ibid.
70Ibid., p.2.
71Ibid.
72
Costa Rica's Request of 21 May 2013 for the modification of the Court's Order of 8 March 2011 on
provisional measures, p. 7, para. 18.
73Ibid.
74
I.C.J., Order, 08 March 2011, Certain Activities carried out by Nicaragua in the Border Area (Costa
Rica v. Nicaragua), Requestfor the indication ofprovisional measures, para. 86(2).
75Costa Rica's Request of 21 May 2013 for the modification of the Court's Order of 8 March 2011 on
provisional measures, p. 7, para. 17. EMBASSY OF NICARAGUA
THE HAGUE
(e) Costa Rica's request should not be accepted
42. For ali the foregoing reasons, Nicaragua asks the Court to declare that the requesbymade
Costa Rica for the Modification of its Order of 8 March 2011 does not fulfil the requirements
for the Modification it has requested. EMBASSY OF NICARAGUA
THE HAGUE
IV. REQUEST BY NICARAGUA THAT THE COURT'S ORDER OF 8
MARCH 2011 ON PROVISIONAL MEASURES IN THE CASE CONCERNING
CERTAIN ACTIVITIES CARRIED OUT BY NICARAGUA IN THE BORDER
AREA (COSTA RICA v. NICARAGUA) BE MODIFIED OR ADAPTED TO THE
SITUATION CREATED BY THE JOINDER OF THE CASE CONCERNING
CONSTRUCTION OF A ROAD IN COSTA RICA ALONG THE SAN JUAN RIVER
(NICARAGUA v. COSTA RICA)
(a) Facts and Law relevant to Nicaragua's request
1. The new factual situation: The construction of a 160 km-long road
along the San Juan de Nicaragua River and its effects
43. Apparently dissatisfied with the provisional measures indicated by the Court, Costa Rica chose
to take ''justice" into its own hands and unilaterally decided to construct a road along the right
bank of the San Juan de Nicaragua River, without informing or consulting with Nicaragua, and
without conducting a Transboundary Environmental Impact Assessment prior to the initiationf
construction activities. This irresponsible activity carried out by Costa Rica has been the most
76
significant factual development in the areaince the Court's Order of 8 March 2011.
44. Indeed, "the siltation of the San Juan de Nicaragua River that is caused by the Road project
constitutes an intentional trespass upon Nicaraguan sovereign territory. And there no doubt
that this trespass was and continues to be intentional, in that it was either a deliberate response
to Nicaragua's dredging project and cleaningf the cafio, or a consequence substantially certain
to follow from the manner in which the Road wasconstructed."7
45. Furthermore, Costa Rica has announced the recommencement of the construction ofRoad 1856.
In particular, as Nicaragua reported to the Courtits letter of28 February 2013, "[d]espite the
requestof the Republic of Nicaragua not to continue or undertake any future development in the
area without an appropriate transboundary Environmental Impact Assessment and to present
this assessment in a timely fashion to Nicaragua for its analysis and reaction, and also despite
the orderof the Central American Court of Justice to 'immediately suspend the construction of
76The Court identifies the area as "the area where the common border between them runs along the right
bank of the San Juan River" see Joinder ofProceedings http://www.icj-cij.org/docketlfiles/150/17332.pdf.
77NM, p. 187, para. 5.59. EMBASSY OF NICARAGUA
THE HAGUE
the road... so that the situation does not escalate, thus protecting the rights of each of the parties
and preventing the occurrence of irreversible and irreparable damage,' the Government of Costa
Rica has announced that the work on Road 1856 is about to be restarted, as has been confmned
78
by the Minister of Public Works, Mr. Pedro Castro."
46. The construction of the road has resulted in increased sedimentation and other pollution of the
River, with attendant adverse impacts on water quality, aquatic life, navigation and other
general uses and enjoyments of the River by the population, as has been extensively detailed by
Nicaragua in its Counter-Memorial in the Certain Activities case, 79 its Memorial in the Road
Construction case, 80and severa! repmis submitted to the Court pursuant to the Court's Order 81•
2. The new legal situation: Joinder ofProceedings
47. There has also been a significant new legal development since the 8 March 2011 Order was
issued. This consists of the two separate Orders dated 17 April 2013 by which the Court joined
the proceedings in the Certain Activities case and Road Construction case.s2
48. In both Orders, the Court considered that:
"19. The two cases here concerned involve the same Parties and relate to the area where
the common border between them runs along the right bank ofthe San Juan River.
20. Both cases are based on facts relating to works being carried out in, along, or in close
proximity to the San Juan River, namely the dredging of the river by Nicaragua and the
construction of a road along its right bank by Costa Rica. Both sets of proceedings are
about the effect of the aforementioned works on the local environment and on the free
navigation on, and access to, the San Juan River. In this regard, both Parties refer to the
risk of sedimentation ofthe San Juan River.
78Letter from Nicaragua to the International Court of Justice, 28 February 2013, Ref: 28022013-01
79ootnote omitted).
NCM, pp. 417-428.
80See NM Chapter 3.
8See letter from Nicaragua to the ICJ, 23 July 2012, Reference 23072012-01; See also letter from
N82aragua to the ICJ, 28 February 2013, Reference 28022013-01.
http://www.icj-cij.org/docketlfiles/150/17332.pdf EMBASSY OF NICARAGUA
THE HAGUE
21. fu the present case and in the Nicaragua v. Costa Rica case, the Parties make
reference, inaddition, to the harm:fulenvironmental effect of the works in and along the
San Juan River on the fragile fluvial ecosystem (including protected nature preserves in
and along the river)."
49. fu this regard, Nicaragua wishes to draw the attention of the Court to the fact that the "harmful
environmental effect of the works in and along the San Juan River on the fragile fluvial
ecosystem (including protected nature preserves in and along the river)," covers the area in
dispute located at the mouth of the River. As quoted above in paragraph 24, the
UNITARIUNOSAT report commissioned and submitted by Costa Rica observes that the area in
dispute is being affected by the "accumulation of fluvial sediments including those from bank
erosion," and this is attributable in part to the sediments transmitted to the river by Costa Rica's
raad construction activities. The logical consequence is that the Order of 8 March 2011 should
be adjusted in arder to take account of this, and to extend to bath Parties the measures provided
by the Order.regarding the need to protect the environment of the area in dispute, and avoid
activities that may be harmful to it.
50. Consequently, bath Parties should be precluded from undertaking unilaterally any activities that
increase the "accumulation of fluvial sediments" in the area in dispute. And, to this end, both
Parties should be allowed to "dispatch civilian personnel charged with the protection of the
environment to the disputed territory, including the cafio, but only in so far as it is necessary to
avoid irreparable prejudice being caused to the part of the wetland where that territory is
83
situated".
51. The other measure ordered by the Court that should be modified in light of the new factual and
legal situations is that the requirement that the Parties should "refrain from any action which
might aggravate or extend the dispute before the Court or make it more difficult to resolve"
should be expressly made applicable to bath of the now-joined cases. This provision should
apply to ali activities by either Party that might harm the environment of the disputed area -
including the renewal by Costa Rica of its raad construction work and the consequent deposit of
sediments and other debris into the River that accumulate ail along its mouth - because any such
harmful activities inevitably aggravate the dispute. Costa Rica's failure to take ali appropriate
83 I.C.J., Order, 28 March 2011, Certain Activities carried out by Nicaragua in the Border Area (Costa
Rica v. Nicaragua), Requestfor the indication ofprovisional measures, para. 86(2). EMBASSY OF NICARAGUA
THE HAGUE
measures to avoid further damage to the River and its surrounding ecosystems also aggravates
the dispute.
52. Inthat regard, it is pertinent to recall the list of urgent measures to prevent further damage to the
River that Nicaragua described in its Memorial in the Road Construction caAs pointed out
in Nicaragua's Memorial, many of these measures have been called for by Costa Rican
institutions. The following are just sornehe "temporary, emergency measures" that must be
"implemented to control erosion, mass wasting and sediment delivery to tRio San Juan de
85
Nicaragua and itstributaries." Inother words, these measures are simply triage, intended to
momentarily stabilize the situation and stop theding".
"RECOMMENDED EMERGENCY STABILIZATION AND
EROSION CONTROL MEASURES TO PREVENT CONTINUING
AND FUTURE IMPACTS TO THE Rio SAN JUAN,
Task 1: Reduce the rate and frequency of road till 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 tRio San Juan.
Task 2: Eliminate or significantly reduce the risk of future erosion and
sediment delivery at ali stream crossings along Route 1856.
Task 3: 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.
Task 4: Control surface erosion and resultant sediment delivery from
bare soil areas that were exposed during clearing, grubbing and
construction activities in the last severa! years.
84See NM, pp. 114-121, paras. 3.94-3.98.
85KondolfReport, Section 5.6 (NM, Vol. II, Annex 1). EMBASSY OF NICARAGUA
THE HAGUE
(b) The Measures Requested
53. Even though Nicaragua has demonstrated that Costa Rica's Request for the Modification of
Provisional Measures is unsustainable, Nicaragua agrees that there has been a change in the
factual and legal situations, namely the construction ofRoad 1856 and the Joinder of the cases,
as a result ofwhich, on the basis of Article 76 of the Rules, Nicaragua respectfully requests that
the Court modify itsrder in the following ways:
• The second measure ordered by the Court should be modified to read
as follows:
Notwithstanding point (1) above, both Parties may dispatch civilian
personnel charged with the protection of the environment to the
disputed territory, including theo, but only in so far as it is
necessary to avoid irreparable prejudice being caused to the part of the
wetland where that territory is situated; both Parties shall consult in
regard to these actions and use their best endeavours to find common
solutions with the other Party in this respect;
• The third measure ordered by the Court should be modified to read as
follows, to make clear that ther is applicable to the case as now
joined.
Bach Party shall refrain from any action, which might aggravate or
extend the dispute before the Court in either of the joined cases or
make it more difficult to resolve, and will take those actions necessary
for avoiding such aggravation or extension of the dispute before the
Court.
# \
#~ /~
Carlos Argüello mez
Agent of the Republic ofNicaragua
14June 2013
Written observations of Nicaragua and Request by Nicaragua for the modification of the Order in light of the joinder of the proceedings in the two cases