INTERNATIONAL COURT OF JUSTICE
DISPUTE CONCERNING
CONSTRUCTION OF AROAD INC OSTARICA
ALONG THESAN JUANR IVER
(NICARAGUA V .OSTA RICA)
M EMORIAL
OF THEREPUBLIC NICARAGUA
V OLUMEI
19 December 2012 TABLE OF CONTENTS
CHAPTER 1: INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . .1. . . . . . . . . . .
A. JURISDICTION OF THE COURT ............................ 1
B. THE SCOPE OF THE DISPUTE .............................. 2
C. STRUCTURE OF THE MEMORIAL .......................... 8
CHAPTER 2: BACKGROUND OFTHE DISPUTE . . . . . . . . . . . . . . . . . . 11
A. THE GEOGRAPHY OF THE SAN JUAN DE NICARAGUA
RIVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ▯. . . . . . . . . . . . . . 11
1. The San Juan de Nicaragua River ............................. 11
2. The Environment and Protected Reserves in and along the River .... 13
(a) The San Juan River Wildlife Refuge ...................... 14
(b) The Indio Maíz Biological Reserve ....................... 16
(c) The San Juan River – Nicaragua Biosphere Reserve ..........17
3. The San Juan de Nicaragua River Human Communities ........... 19
B. COSTA RICA’S AUTHORIZATION OF THE ROAD
PURSUANT TOAN “EMERGENCY DECREE” ................ 19
C. COSTA RICA’S REFUSAL TO PROVIDE INFORMATION
OR TO CONDUCTAN EIAON THE ROAD CONSTRUCTION ... 30
CHAPTER3: HARM CAUSED TO NICARAGUA BY COSTA
RICA’S ROAD CONSTRUCTION . . . . . . . . . . . . . . . . .45 . . .
A. INTRODUCTION ........................................ 45
B. COSTA RICA CONSTRUCTED ITS ROAD IMPROPERLY
AND RECKLESSLY, MAKING IMPACTS TO THE SAN
JUAN DE NICARAGUARIVER INEVITABLE ................ 47
1. Deforestation and Soil Erosion Affecting the San Juan de
Nicaragua River .......................................... 51
2. Earthmoving and Topographical Changes Affecting the
San Juan de Nicaragua River ................................ 56
iii 3. Exposed, Unprotected and Unstable Mounds of Earth ............63
4. Lack of Proper Drainage Systems and Stream Crossings .........76
C. DAMAGE TO NICARAGUA HAS ALREADY OCURRED
AND CONTINUES, WITH SERIOUS CONSEQUENCES ........ 87
1. The San Juan de Nicaragua River has been Damaged,
and Continues to be Damaged, by Costa Rica’s Road
Construction ............................................. 88
2. Harms Caused by Road Construction to Watercourses in
Environmentally SensitiveAreas Generally .................... 107
3. Required Remediation Measures ............................ 114
CHAPTER 4: BREACHES OFTHE LEGALREGIME OFTHE SAN
JUAN DE NICARAGUARIVER . . . . . . . . . . . . . . . . .123. . . .
A. BREACHES OF THE 1858 TREATYAND ITS SUCCESIVE
ARBITRALAND JUDICIAL INTERPRETATIONS ............ 124
1. The 1858 Treaty of Limits and itsArbitral Interpretations ...124...
2. Costa Rica’s Breaches of the 1858 Treaty of Limits ..........128.
(a) Breach of Nicaragua’s Right of Navigation ..............128
(b) Breach of the Obligation to Notify .....................134
B. THE CONSTRUCTION OF THE ROAD VIOLATES
PRINCIPLESAND RULES OF INTERNATIONAL LAW ....... 139
1. The Violation of Nicaragua’s Territorial Sovereignty ........139..
2. The Violation of the Principle of the Non-Harmful Use of the
Territory ............................................... 141
3. The Violation of the Obligation to inform, notify and consult144....
CHAPTE 5:R COSTA RICA’S BREACHES OF ITS
ENVIRONMENTALOBLIGATIONS . . . . . . . . . . . . . . . .149
A. INTRODUCTION ....................................... 149
B. COSTA RICA BREACHED ITS OBLIGATION TO ASSESS
THE ENVIRONMENTAL IMPACT OF THE ROAD, ON
BOTH THE NATIONALAND TRANSBOUNDARY LEVEL..... 152
iv 1. The National Level ....................................... 152
2. The Transboundary Level .................................. 166
C. COSTA RICA BREACHED ITS OBLIGATION TO
PROVIDE PRIOR NOTIFICATION TO NICARAGUA.......... 172
D. COSTA RICA BREACHED ITS OBLIGATION NOT TO
CAUSE SIGNIFICANT TRANSBOUNDARY HARM .......... 186
E. COSTA RICA’S CONSTRUCTION OF THE ROAD
BREACHED TREATIES TO WHICH THE TWO STATES
ARE PARTIES .......................................... 192
1. Costa Rica’s Road Project Breaches UniversalAgreements ....... 192
(a) The Convention on Biological Diversity .................. 192
(b) The Ramsar Convention .............................. 197
2. Costa Rica’s Road Project Breaches Regional and Bilateral
Agreements ............................................. 201
(a) Regional Agreements................................. 201
(i). The Central American Convention for the Protection
of the Environment ............................... 201
(ii). The Tegucigalpa Protocol .......................... 204
(iii).The Convention for the Conservation of Biodiversity .... 209
(iv). The Regional Agreement on the Transboundary
Movement of Hazardous Wastes ..................... 213
(b) Bilateral Agreements: SI-A-PAZ........................ 215
F. CONCLUSION .......................................... 217
CHAPTER 6: REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . .221. . . . . . . . . . .
A. URGENTLY NEEDED IMMEDIATE REMEDIATION
MEASURES ............................................ 221
B. REMEDIES REQUESTED BY NICARAGUA................. 228
1. A Declaration by the Court on Costa Rica’s Internationally
Wrongful Acts ........................................... 229
v 2. Cessation of Costa Rica’s Continuing Internationally Wrongful
Acts and Performance of the Obligations Breached .............. 231
3. Nicaragua is Entitled to Appropriate Guarantees of
Non-Repetition by Costa Rica of its Internationally Wrongful
Acts ................................................... 234
4. Nicaragua is Entitled to Full Reparation from Costa Rica for
All Damages Caused by its Internationally WrongfulActs ........ 238
5. The Prejudice to Nicaragua’s territory affects the Navigational
Rights granted by the 1858 Treaty to Costa Rica ................ 244
SUBMISSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251 . . . . . . . . . . . .
CERTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255 . . . . . . . . . .
LIST OF ANNEXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 . . . . . . . . .
vi LIST OF FIGURES IN VOLUME I
Figure 2.1. San Juan de Nicaragua River.
Figure 2.2. Sketch Map: The Indio Maíz Biological Reserve
(dark green) and the San Juan River Wildlife Refuge
(Yellow).
Figure 5.1. Site Visit on the 1st of December, 2011. Note: This
photograph was taken from the San Juan de
Nicaragua River. (Application Instituting
Proceedings, 22 December 2011, Construction of a
Road in Costa Rica along the San Juan River
(Nicaragua vs. Costa Rica), Annex 1).
Figure 5.2. El Nuevo Diario, Nic aragua, "Nicaragua requires
Costa Rica the immediate halt of the works and lists
eight blows to the river", 12 december 2011.
(Application Instituting Proceedings, 22 December
2011, Construction of a Road in Costa Rica along
the San Juan River (Nicaragua v s. Costa Rica),
Annex 4).
Figure 5.3. El Nuevo Diario, Nicaragua, "Environmentalist
corroborate damage by the Costa Rican road in Río
San Juan on sight, Violation of sovereignty",
5 December 2011 (Application Instituting
Proceedings, 22 December 2011, C onstruction of a
Road in Costa Rica along the San Juan River
(Nicaragua vs. Costa Rica), Annex 7).
Figure 5.4. Site Visit on the 1st of December, 2011. Note: This
photograph was taken from the San Juan de
Nicaragua River (Application Instituting
Proceedings, 22 December 2011, Construction of a
Road in Costa Rica along the San Juan River
(Nicaragua vs. Costa Rica), Annex 8).
viiviii LIST OF ACRONYMS
BMP Best Management Practices
CACJ Central American Court of Justice
CCAD (Spanish Acronym) Central American Commission for
Environment and Development
CFIA (Spanish Acronym) Association of Federated Engineers and
Architects of Costa Rica
CONAVI (Spanish Acronym) Consejo Nacional de Vialidad (Spanish)
or National Roads Authority
CRM Memorial of Costa Rica
EIA Environmental Impact Assessment
EPN (Spanish Acronym) Empresa Portuaria Nacional (Spanish) or
National Port Authority
FONARE (Spanish Acronym) National Recycling Forum (Nicaragua)
FUNDENIC-SOS (Spanish Nicaraguan Foundation for Sustainable
Acronym) Development
ILC International Law Commission
INETER (Spanish Acronym) Territorial Institute of Nicaragua
IUCN International Union for the Conservation
of Nature
LANAMME (Spanish Laboratorio Nacional de Materiales y
Acronym) Modelos Estructurales, Universidad de
Costa Rica (Spanish) or National
Laboratory of Materials and Structural
Models
MARENA (Spanish Acronym) Ministerio del Ambiente y los Recursos
Naturales (Spanish) or Ministry of the
Environment and Natural Resources
MINAET (Spanish Acronym) Ministerio del Ambiente, Energía y Mares
(Spanish) or Ministry of Environment,
Energy and Telecommunications
NM Nicaragua Memorial
NCM Nicaragua Counter Memorial
NR Nicaragua Rejoinder
OCAS Organization of Central American States
SETENA (Spanish Acronym) Secretary General of Costa Rica’s
National Environmental Technical
Secretariat
SI-A-PAZ (Spanish Acronym) International System of Protected Areas
for Peace
ix SICA(Spanish Acronym) Sistema de Integración Centroamericana
(Spanish) or Central American Integration
System
TAA (Spanish Acronym) Costa Rica’s Administrative
Environmental Court
UNECE United Nations Economic Commission
for Europe
UNESCO’s MAB United Nations Educational, Scientific
22 December 2011 instituting the present proceedings aga inst the Republic of
and Cultural Organization ‘s Man and the
Biosphere Programme Costa Rica for violations of Nicaraguan sovereignty and major environmental
UNEP United Nations Environment Programme
harm to its territory resulting from the construction of a road, most of which
follows the southern, or Costa Rican, bank of the San Juan de Nicaragua River
(also referred in this Memorial as San Juan River).
in Costa Rica along the San Juan River (Nicaragua v. Costa Rica).
the filing of the Parties’ pleadings
Nicaragua and 19 December 2013 for the Counter-Memorial of Costa Rica. The
present Memorial of Nicaragua is filed within the time limit so fixed.
the Statute, jurisdiction exists by virtue of Article XXXI of the American Treaty
on Pacific Settlement signed in Bogotá on 30 April 1948 (P act of Bogotá). Both
the Republic of Nicaragua and the Republic of Costa Rica are parties to the Pac t
of Bogotá, the former without any pertinent reservation, and the latter with no
reservations. In accordance with the provisions of Article 36, paragraph 2, of the
xSICA(Spanish Acronym) Sistema de Integración Centroamericana
(Spanish) or Central American Integration
System
TAA (Spanish Acronym) Costa Rica’s Administrative
Environmental Court
UNECE United Nations Economic Commission
for Europe 1.1
UNESCO’s MAB United Nations Educational, Scientific
22 December 2011 instituting the present proceedings aga inst the Republic of
and Cultural Organization ‘s Man and the
Biosphere Programme Costa Rica for violations of Nicaraguan sovereignty and major environmental
UNEP United Nations Environment Programme
harm to its territory resulting from the construction of a road, most of which
follows the southern, or Costa Rican, bank of the San Juan de Nicaragua River
(also referred in this Memorial as San Juan River).
1.2
in Costa Rica along the San Juan River (Nicaragua v. Costa Rica).
1.3
the filing of the Parties’ pleadings
Nicaragua and 19 December 2013 for the Counter-Memorial of Costa Rica. The
present Memorial of Nicaragua is filed within the time limit so fixed.
A .
1.4
the Statute, jurisdiction exists by virtue of Article XXXI of the American Treaty
on Pacific Settlement signed in Bogotá on 30 April 1948 (P act of Bogotá). Both
the Republic of Nicaragua and the Republic of Costa Rica are parties to the Pac t
of Bogotá, the former without any pertinent reservation, and the latter with no
reservations. In accordance with the provisions of Article 36, paragraph 2, of the Statute, jurisdiction also exists by virtue of the operation of the Declaration of the regional and international law, such as informing Nicaragua of the intention to
Applicant State dated 24 September 1929 and the Declaration of Costa Rica dated construct the
20 February 1973, both Declarations being without pertinent reservations. assessment
B . THE SCOPE OF THE DISPUTE de Nicaragua River, over which Nicaragua has undisputed sovereignty, and not
1.5 Nicaragua instituted the present proceedings in response to Costa causing harm to Nicaragua
Rica’s unilateral decision, made without informing or consulting with Nicaragua,
1
to construct a road (hereafter referred to as the Road for simplicity ) some 160 Regulations
kilometers in length, 120 kilometers of which follows the southern bank of the issuance of the Decree arose from Nicaragua’s purported violation of Costa Rican
San Juan de Nicaragua River where it forms the border between the two countries sovereignty in the area of Harbor Head, or Isla Portillos as Costa Rica calls it
2
and thus causing harm to the San Juan de Nicaragua River . The Road was Costa Rica had already instituted proceedings against Nicaragua in respect of this
3
constructed pursuant to an Emergency Decree adopted by the President of Costa dispute, Certain Activities carried out by Nicaragua in the Border Area (Costa
Rica which allowed construction to proceed without complying with the normally Rica v. Nicaragua), and sought provisional measures from the Court. The Court,
applicable requirements under Costa Rican law, such as the preparation of an by Order of 8 March 2011, indicated several such measures
4
environmental impact assessment . Costa Rican officials also contended that the “Each party shall inform the Court as to its compliance with the Court’s Order on
Emergency Decree exempted them from obligations deriving from bilateral , Provisional Measures”. Costa Rica filed 7 reports and Nicaragua presented 2
1 reports, of which the second report filed on 23 July 2012 is relevant to the present
Costa Rica’s official name for the Road is the “Juan Rafael Mora Porras– Route 1856 ” (Ruta
Juan Rafael Moras Porras - Ruta Nacional 1856). This name is itself inflammatory since it
commemorates the Costa Rican invasion and occupation of Nicaraguan territory, including the case. The said report informed the Court of Costa Rica’s lack of complian ce of
San Juan de Nicaragua River and Lake Nicaragua, during the period when Nicaragua was hard
pressed fighting off the invasion s of the American adventurer William Walker. See Counter
Memorial of Nicaragua (NCM) in the Dispute concerning “Certain Activities Carried Out by 5
Nicaragua in the Border Area (Costa Rica v. Nicaragua)”, Volume I, 6 August 2012, paras. 2.25- 6
7
2.27; further se e Counter Memorial of the Republic of Nicaragua in the Dispute regarding 8
Navigational and Related rights (Costa Rica v. Nicaragua) , Volum e I, 29 May 2007, para s. 9
1.2.41- 1.2.43.
2 See para paras. 2.15-2.16 below; further see Chapter 3 below for a detail presentation on the Prevention and Attention to Emergencies, Decision No. 0362 -2011, Specific By-Laws regarding
harm caused to the San Juan de Nicaragua River. purchasing and contracts procedures under exception mechanisms regime by
3 Official Daily Gazette No. 46, Decree No. 36440 -MP, Year CXXXIII, La Uruca, San José, Declaration of a State of Emergency by virtue of Decree No. 36440, 21 September 2011 (NM,
Costa Rica, 07 March 2011 (NM, Vol. II, Annex 11) (hereafter Decree No.36440). Vol. II, Annex 12) (hereafter Decree No. 0362-2011).
4 10
See paras. 5.6-5.28 below.
2Statute, jurisdiction also exists by virtue of the operation of the Declaration of the regional and international law, such as informing Nicaragua of the intention to
Applicant State dated 24 September 1929 and the Declaration of Costa Rica dated construct the
20 February 1973, both Declarations being without pertinent reservations. assessment
B . THE SCOPE OF THE DISPUTE de Nicaragua River, over which Nicaragua has undisputed sovereignty, and not
1.5 Nicaragua instituted the present proceedings in response to Costa causing harm to Nicaragua
Rica’s unilateral decision, made without informing or consulting with Nicaragua, 1.6
1
to construct a road (hereafter referred to as the Road for simplicity ) some 160 Regulations
kilometers in length, 120 kilometers of which follows the southern bank of the issuance of the Decree arose from Nicaragua’s purported violation of Costa Rican
San Juan de Nicaragua River where it forms the border between the two countries sovereignty in the area of Harbor Head, or Isla Portillos as Costa Rica calls it
2
and thus causing harm to the San Juan de Nicaragua River . The Road was Costa Rica had already instituted proceedings against Nicaragua in respect of this
3
constructed pursuant to an Emergency Decree adopted by the President of Costa dispute, Certain Activities carried out by Nicaragua in the Border Area (Costa
Rica which allowed construction to proceed without complying with the normally Rica v. Nicaragua), and sought provisional measures from the Court. The Court,
applicable requirements under Costa Rican law, such as the preparation of an by Order of 8 March 2011, indicated several such measures
4
environmental impact assessment . Costa Rican officials also contended that the “Each party shall inform the Court as to its compliance with the Court’s Order on
Emergency Decree exempted them from obligations deriving from bilateral , Provisional Measures”. Costa Rica filed 7 reports and Nicaragua presented 2
1 reports, of which the second report filed on 23 July 2012 is relevant to the present
Costa Rica’s official name for the Road is the “Juan Rafael Mora Porra– Route 1856 ” (Ruta
Juan Rafael Moras Porras - Ruta Nacional 1856). This name is itself inflammatory since it
commemorates the Costa Rican invasion and occupation of Nicaraguan territory, including the case. The said report informed the Court of Costa Rica’s lack of complian ce of
San Juan de Nicaragua River and Lake Nicaragua, during the period when Nicaragua was hard
pressed fighting off the invasion s of the American adventurer William Walker. See Counter
Memorial of Nicaragua (NCM) in the Dispute concerning “Certain Activities Carried Out by 5See paras. 5.40-5.55 below.
Nicaragua in the Border Area (Costa Rica v. Nicaragua)”, Volume I, 6 August 2012, paras. 2.25- 6See paras. 5.29-5.39 below.
7
2.27; further se e Counter Memorial of the Republic of Nicaragua in the Dispute regarding 8See paras. 5.56-5.62 below.
Navigational and Related rights (Costa Rica v. Nicaragua) , Volum e I, 29 May 2007, para s. 9Decree No. 36440 (NM, Vol. II, Annex 11).
1.2.41- 1.2.43. By-Laws and regulations, Presidency of the Republic, National Commissions on Risk
2 See para paras. 2.15-2.16 below; further see Chapter 3 below for a detail presentation on the Prevention and Attention to Emergencies, Decision No. 0362 -2011, Specific By-Laws regarding
harm caused to the San Juan de Nicaragua River. purchasing and contracts procedures under exception mechanisms regime by
3 Official Daily Gazette No. 46, Decree No. 36440 -MP, Year CXXXIII, La Uruca, San José, Declaration of a State of Emergency by virtue of Decree No. 36440, 21 September 2011 (NM,
Costa Rica, 07 March 2011 (NM, Vol. II, Annex 11) (hereafter Decree No.36440). Vol. II, Annex 12) (hereafter Decree No. 0362-2011).
4 10
See paras. 5.6-5.28 below. See Section B, Chapter 2 below. the Court’s order by, among others, causing environmental harm to Nicaraguan the project was not issued until some four to five months after the Harbor Head
territory through the construction of the road along the San Juan de Nicaragua dispute had arisen
River. It should be observed that, despite the fact that this dispute was sub judice of a perceived “emergency”.
and had already been addressed by the Court through the provisional measures it
ordered, Costa Rica decided to take matters into its own hands by constructing the small-scale dredging operation being carried out by Nicaragua in its undisputed
Road without complying with the normally applicable requirements under sovereign territory in the Lower San Juan de Nicaragua. Even though Nicaragua
national or international law. is entitled under the lex specialis regime governing the San Juan de Nicaragua
1.7 It bears emphasis that Nicaragua has maintained throughout that it River to restore navigability of the San Juan de Nicaragua as it existed in 1858,
never violated Costa Rica’s sovereignty. I n cleaning by hand a small caño the purpose of the present operation is much more modest
connecting the San Juan de Nicaragua River with Harbor Head Lagoon – the dispute that the 1858 Treaty
asserted violation of Costa Rica’s sovereignty – Nicaragua acted with the Award
conviction that it was performing this work in its own territory and therefore not sovereignty over the San Juan de Nicaragua River, allowing Costa Rica a right of
in violation of Costa Rica’s sovereignty. It is also worthy of note that Costa navigation for commercial purposes on the portion of the river where the border
Rica’s Road, which according to Costa Rica was a response to Nicaragua’s 14
alleged violation of its sovereignty in the Harbor Head area, does not extend to Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)”, paras. 5.172-5.175
below.
15
that area at all but stops well short of it, at the Colorado branch of the San Juan de 16
Limits of 1858 between Nicaragua and Costa Rica (Cleveland Award), reprinted United Nations,
11
Nicaragua River. Costa Rica ’s Road project thus appears to have been Report of International Arbitral Awards, Vol. XXVIII (2006), pp. 207 -211 Washington, D.C., 22
17rch 1888. (NM, Vol. II, Annex 6(1)).
undertaken more as an act of retaliation than as a response to an emergency
Nicaragua, reprinted United Nations,
12 (2007) pp.215 -221, San Juan del Norte, 30 September 1897; Second Award of the Umpire EP
situation . This impression is reinforced by the fact that the decree authorizing Alexander in the boundary question between Costa Rica and Nicaragua, reprinted United Nations,
Reports of International Arbitral Awards, Vol. XXVIII (2007) pp.223-225, San Juan del Norte, 20
December 1897 ; Third Award of the Umpire EP Alexander in the boundary question between
Costa Rica and Nicaragua, reprinted United Nations,
11Because Costa Rica has not provided information on the Road project to Nicaragua, it is unclear Vol. XXVIII (2007) pp.227 -230, San Juan d el Norte, 22 March 1898 ; Fourth Award of the
to Nicaragua whether Costa Rica intends to extend the Road across the Colorado River and onto, Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, reprinted
12rhaps even to Harbour Head , despite the fact that much of this area is protected wetland. United Nations, Reports of International Arbitral Awards,
See paras. 2.16- 2.20 below. Greytown, 26 July 1899. (NM, Vol. II, Annex 6 (2)(3)(4)(5)).
4the Court’s order by, among others, causing environmental harm to Nicaraguan the project was not issued until some four to five months after the Harbor Head
territory through the construction of the road along the San Juan de Nicaragua dispute had arisen
River. It should be observed that, despite the fact that this dispute was sub judice of a perceived “emergency”.
and had already been addressed by the Court through the provisional measures it 1.8
ordered, Costa Rica decided to take matters into its own hands by constructing the small-scale dredging operation being carried out by Nicaragua in its undisputed
Road without complying with the normally applicable requirements under sovereign territory in the Lower San Juan de Nicaragua. Even though Nicaragua
national or international law. is entitled under the lex specialis regime governing the San Juan de Nicaragua
1.7 It bears emphasis that Nicaragua has maintained throughout that it River to restore navigability of the San Juan de Nicaragua as it existed in 1858,
never violated Costa Rica’s sovereignty. I n cleaning by hand a small caño the purpose of the present operation is much more modest
connecting the San Juan de Nicaragua River with Harbor Head Lagoon – the dispute that the 1858 Treaty
16
asserted violation of Costa Rica’s sovereignty – Nicaragua acted with the Award
conviction that it was performing this work in its own territory and therefore not sovereignty over the San Juan de Nicaragua River, allowing Costa Rica a right of
in violation of Costa Rica’s sovereignty. It is also worthy of note that Costa navigation for commercial purposes on the portion of the river where the border
Rica’s Road, which according to Costa Rica was a response to Nicaragua’s 14
See Counter Memorial of Nicaragua (NCM) in the Dispute concerning “Certain Activities
alleged violation of its sovereignty in the Harbor Head area, does not extend to Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)”, paras. 5.172-5.175
below.
15Treaty of Limits between Nicaragua and Costa Rica, 15 April 1858 ( NM, Vol. II, Annex 5).
that area at all but stops well short of it, at the Colorado branch of the San Juan de 16 Award of the Arbitrator, the President of the United States, upon the validity of the Treaty of
Limits of 1858 between Nicaragua and Costa Rica (Cleveland Award), reprinted United Nations,
11
Nicaragua River. Costa Rica ’s Road project thus appears to have been Report of International Arbitral Awards, Vol. XXVIII (2006), pp. 207 -211 Washington, D.C., 22
17rch 1888. (NM, Vol. II, Annex 6(1)).
undertaken more as an act of retaliation than as a response to an emergency First Award of the Umpire EP Alexander in the boundary question between Costa Rica and
Nicaragua, reprinted United Nations,
12 (2007) pp.215 -221, San Juan del Norte, 30 September 1897; Second Award of the Umpire EP
situation . This impression is reinforced by the fact that the decree authorizing Alexander in the boundary question between Costa Rica and Nicaragua, reprinted United Nations,
Reports of International Arbitral Awards, Vol. XXVIII (2007) pp.223-225, San Juan del Norte, 20
December 1897 ; Third Award of the Umpire EP Alexander in the boundary question between
Costa Rica and Nicaragua, reprinted United Nations,
11Because Costa Rica has not provided information on the Road project to Nicaragua, it is unclear Vol. XXVIII (2007) pp.227 -230, San Juan d el Norte, 22 March 1898 ; Fourth Award of the
to Nicaragua whether Costa Rica intends to extend the Road across the Colorado River and onto, Umpire EP Alexander in the boundary question between Costa Rica and Nicaragua, reprinted
12rhaps even to Harbour Head , despite the fact that much of this area is protected wetland. United Nations, Reports of International Arbitral Awards,
See paras. 2.16- 2.20 below. Greytown, 26 July 1899. (NM, Vol. II, Annex 6 (2)(3)(4)(5)). follows its southern bank. But Costa Rica expressed the fear that the dredging River, an impact that is
operation would lower the Colorado of San Juan water. It brought this claim explained thoroughly by the team of environmental scientist and road
before the Court in the Certain Activities case despite the findings of its own construction experts led by Dr. G. Mathias Kondolf’s, who also
authorities, including its Foreign Minister, that Nicaragua’s dredging program series of immediate measures need to be taken in view of the impacts caused by
would have no significant effects on the flow of the Colorado branch or on Costa erosion. While any road along the right, or southern, bank of the river, no matter
Rican territory.18 how well planned and constructed, would have impacts on the river and its
1.9 As will be established in the present Memorial, particularly in ecosystems, the severity of the present impacts appears to be due largely to the
Chapter 3, Costa Rica’s Road project is resulting, and will continue to result, in a haste and recklessness with which Costa Rica pursued its Road project. Since as
massive contribution of sediments into the San Juan de Nicaragua River. In indicated above there appears to be no relation between the Road project and the
addition to the effects of this on the ecosystem of the San Juan de Nicaragua asserted basis for Costa Rica’s Emergency Decree – the dispute with Nicaragua
River and surrounding protected areas, the increased sedimentation due to Costa over the location of the border on Harbor Head – the rush to construct the Road,
Rica’s Road project will offset, and is already frustrating , Nicaragua’s modest ignoring all applicable legal requirements under national and international law,
19
efforts to dredge the Lower San Juan de Nicaragua to restore its navigability . can only be understood as intentional damage to Nicaraguan territory.
Given its complaints about Nicaragua’s dredging program, this raises the question
whether a purpose of the Road project was not to neutralize that program an d its construction of the Road into the San Juan
possible – though insignificant – effects in Costa Rica. ongoing contribution of many tens of thousands of additional cubic meters of
1.10 Regardless of Costa Rica’s motives for constructing the Road, the sediments into the river per year through erosion and mass wasting processes
effects of the project are clear and scientifically verifiable, as shown in Chapter 3 constitutes a transgression of Nicaragua’s territorial sovereignty. “As the Court
of the present Memorial. In a word, the Road project has caused harm to the has observed: ‘Between independent States, respect for territorial sovereignty is
18
See Counter Memorial of Nicaragua (NCM) in the Dispute concerning “Certain Activities
Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)”, para. 1.14 and
19thorities there cited.
See paras. 3.80-3.81 below.
6follows its southern bank. But Costa Rica expressed the fear that the dredging River, an impact that is
operation would lower the Colorado of San Juan water. It brought this claim explained thoroughly by the team of environmental scientist and road
before the Court in the Certain Activities case despite the findings of its own construction experts led by Dr. G. Mathias Kondolf’s, who also
authorities, including its Foreign Minister, that Nicaragua’s dredging program series of immediate measures need to be taken in view of the impacts caused by
would have no significant effects on the flow of the Colorado branch or on Costa erosion. While any road along the right, or southern, bank of the river, no matter
Rican territory.18 how well planned and constructed, would have impacts on the river and its
1.9 As will be established in the present Memorial, particularly in ecosystems, the severity of the present impacts appears to be due largely to the
Chapter 3, Costa Rica’s Road project is resulting, and will continue to result, in a haste and recklessness with which Costa Rica pursued its Road project. Since as
massive contribution of sediments into the San Juan de Nicaragua River. In indicated above there appears to be no relation between the Road project and the
addition to the effects of this on the ecosystem of the San Juan de Nicaragua asserted basis for Costa Rica’s Emergency Decree – the dispute with Nicaragua
River and surrounding protected areas, the increased sedimentation due to Costa over the location of the border on Harbor Head – the rush to construct the Road,
Rica’s Road project will offset, and is already frustrating , Nicaragua’s modest ignoring all applicable legal requirements under national and international law,
19
efforts to dredge the Lower San Juan de Nicaragua to restore its navigability . can only be understood as intentional damage to Nicaraguan territory.
Given its complaints about Nicaragua’s dredging program, this raises the question 1.11
whether a purpose of the Road project was not to neutralize that program an d its construction of the Road into the San Juan
possible – though insignificant – effects in Costa Rica. ongoing contribution of many tens of thousands of additional cubic meters of
1.10 Regardless of Costa Rica’s motives for constructing the Road, the sediments into the river per year through erosion and mass wasting processes
effects of the project are clear and scientifically verifiable, as shown in Chapter 3 constitutes a transgression of Nicaragua’s territorial sovereignty. “As the Court
of the present Memorial. In a word, the Road project has caused harm to the has observed: ‘Between independent States, respect for territorial sovereignty is
18
See Counter Memorial of Nicaragua (NCM) in the Dispute concerning “Certain Activities
Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)”, para. 1.14 and
19thorities there cited.
See paras. 3.80-3.81 below. an essential found ation of international relations’ ( I.C.J. Reports 1949 , p. 35)
….”. 20
1.12 But Costa Rica’s acts give rise to much more than a technical
violation of Nicaragua’s sovereignty or even significant environmental harm.
Pollution of the River and the increased sediment load resulting from the Road
and its construction will result in significant economic damage to Nicaragua and
its people, and related advers e social and cultural impacts. Navigation in the
lower portion of the River, already difficult in the dry s eason, will be further
impaired, necessitating increased investment in dredging of the River. The
impacts on fish will bring with them harm to subsistence and commercial fishing.
And scenic beauty will be destroyed, reducing the eco -tourism potential of t he
riverine area.
C . STRUCTURE OF THE MEMORIAL
1.13 This Memo rial is structured in accordance with the schema
indicated below that identifies the Chapter into which it is divided. The Schema
of this Memorial is as follows:
Chapter 2 addresses the background of the dispute. It is divided into three
sections of which the first is an overview of the region including a general
description of the San Juan de Nicaragua River and the adjacent biosphere
reserves and internationally-protected wetlands. The other two sections shed
20Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), I.C.J. Reports 1986, p. 14, at p. 106, para. 202.
8an essential found ation of international relations’ ( I.C.J. Reports 1949 , p. 35) light on the context surrounding the reckless construction of the road and the
….”. 20 continuous rejection by Costa Rica to inform Nicaragua about the project or
1.12 But Costa Rica’s acts give rise to much more than a technical to conduct an EIA.
violation of Nicaragua’s sovereignty or even significant environmental harm.
Chapter 3 addresses the environmental issues and detai ls the impact that the
Pollution of the River and the increased sediment load resulting from the Road
construction of the road along the San Juan
and its construction will result in significant economic damage to Nicaragua and
produced, the resulting harms and the future consequences, as well as the
its people, and related advers e social and cultural impacts. Navigation in the
need for immediate actions to avoid further damage, particularly
lower portion of the River, already difficult in the dry s eason, will be further
sedimentation process. It a lso further highlights the setbacks that this
impaired, necessitating increased investment in dredging of the River. The
sedimentation process is having and will have in the sm all dredging program
impacts on fish will bring with them harm to subsistence and commercial fishing.
of Nicaragua and thus the increased need to dredge the river. This analysis is
And scenic beauty will be destroyed, reducing the eco -tourism potential of t he
based on field studies and reports of env
riverine area. constructions experts, as well as reports from the Costa Rican authorities and
C . STRUCTURE OF THE MEMORIAL
civil society.
1.13 This Memo rial is structured in accordance with the schema
Chapter 4 analyzes the law applicable to the case. It reviews the relevant
indicated below that identifies the Chapter into which it is divided. The Schema
instruments that regulate the issues in relation to the bord er and the San Juan
of this Memorial is as follows:
Chapter 2 addresses the background of the dispute. It is divided into three de Nicaragua River and other aspects of the dispute between the Parties, as
well as the role of other norms and principles of general international law.
sections of which the first is an overview of the region including a general
description of the San Juan de Nicaragua River and the adjacent biosphere Chapter 5 analyzes the utter disregard of Costa Rica’s environmental
reserves and internationally-protected wetlands. The other two sections shed obligations at the national, bilateral, regional and international level.
20Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), I.C.J. Reports 1986, p. 14, at p. 106, para. 202. Chapter 6 addresses the Remedies requested in light of the harm caused to
Nicaragua and the violation of sovereignty. It further addresses the urgency
of taking emergency actions in view of the im pact of the sedimentation
process.
Finally, the submissions of Nicaragua.
has suffered significant environmental harm caused by the shoddily designed and
In addition to Volume I, this Memorial consists of a Volume II, which incompetently constructed Road that Costa Rica has built immediately adjacent to
contains 40 documentary annexes, 4 reports, 9 documents relating to treaties, the River’s southern bank. I t also describes the fragile ecosystems within and
awards, agreements, law, decrees and judgment , 4 diplomatic notes, 4
along the River, including internationally
correspondence documents and 19 media reports. wetlands and vulnerable human communities , which have been endangered by
Costa Rica’s road construction.
for 205 kilometers through Nicaraguan territory until discharging into the
Caribbean Sea. Under the 1858 Treaty of Limits, Nicaragua possesses “exclusive
dominion” over the River, and the right (southern) bank forms the border between
Nicaragua and Costa Rica from a point “three English miles distant from Castillo
Viejo” to Punta Castilla at its mouth on the Caribbean Sea.
21
Annex 5).
10Chapter 6 addresses the Remedies requested in light of the harm caused to
Nicaragua and the violation of sovereignty. It further addresses the urgency
of taking emergency actions in view of the im pact of the sedimentation
A .
process.
2.1
Finally, the submissions of Nicaragua.
has suffered significant environmental harm caused by the shoddily designed and
In addition to Volume I, this Memorial consists of a Volume II, which incompetently constructed Road that Costa Rica has built immediately adjacent to
contains 40 documentary annexes, 4 reports, 9 documents relating to treaties, the River’s southern bank. I t also describes the fragile ecosystems within and
awards, agreements, law, decrees and judgment , 4 diplomatic notes, 4
along the River, including internationally
correspondence documents and 19 media reports. wetlands and vulnerable human communities , which have been endangered by
Costa Rica’s road construction.
2.2
for 205 kilometers through Nicaraguan territory until discharging into the
Caribbean Sea. Under the 1858 Treaty of Limits, Nicaragua possesses “exclusive
dominion” over the River, and the right (southern) bank forms the border between
Nicaragua and Costa Rica from a point “three English miles distant from Castillo
Viejo” to Punta Castilla at its mouth on the Caribbean Sea.
21
Treaty of Limits between Nicaragua and Costa Rica, 15
Annex 5). then proceeds to the confluence of the Sarapiquí, another large river originating in
Figure2.1: San Juan de Nicaragua River
Costa Rica. From its juncture with the Sarapiquí River, the San Juan continues to
the delta, where it bifurcates into the Lower San Juan River, which continues
flowing down Nicaraguan territory, and the Colorado River, which flows into
Costa Rica. The Lower San Juan runs through a flat and sedimentary terrain and,
due to ever increasing sedimentation, is navigable only part of the year and even
then, only by small shallow-draft vessels.
2.3 As it proceeds from its origin towards the Caribbean, the San Juan
River is fed by Costa Rican tributaries, including the San Carlos, Medio Queso,
biodiversity, and Nicaragua has invested considerable efforts to protect and
Pocosol, Infiernito and the Sarapiquí Rivers, as well as numerous smaller rivers
conserve these ecologically-delicate areas.
and streams. The San Juan River also receives a considerable amount of water
from the region’s heavy rainfall, which ranges from 2,500 to 6,000 millimeters
or near the San Juan River: (i) the San Juan River Wildlife Refuge, consisting of
annually, one of the highest rates of precipitation in the Western Hemisphere. 22
the river itself and a two -kilometer strip abutting the Nicaraguan bank; (ii) the
2.4 Beginning from the point where the River’s south bank forms the
Indio Maíz Biological Reserve, bordering the Nicaraguan side of the river; and
international border, the San Juan River passes through several rapids, and (iii) the San Juan River - Nicaragua Biosphere Reserve, which is affiliated with
narrows to widths no greater than 50 meters. Downstream from this area, the
the Man and the Biosphere Programme of the United Nations Educational,
River is fed by Costa Rica’s San Carlos River and recovers its normal width. It Scientific and Cultural Organization (“UNESCO”).
22See RAMSAR Advisory Mission Report No.69 (Annex 147, p.111 to the Memorial of Costa
Rica (CRM) in the Dispute Concerning Certain Activities Carried out by Nicaragua in the Border 23
Area (Costa Rica v. Nicaragua). relationships between people and their environment globally” and to establish an
“interdisciplinary research agenda and capacity building that target the ecolog
12 then proceeds to the confluence of the Sarapiquí, another large river originating in
Figure2.1: San Juan de Nicaragua River
Costa Rica. From its juncture with the Sarapiquí River, the San Juan continues to
the delta, where it bifurcates into the Lower San Juan River, which continues
flowing down Nicaraguan territory, and the Colorado River, which flows into
Costa Rica. The Lower San Juan runs through a flat and sedimentary terrain and,
due to ever increasing sedimentation, is navigable only part of the year and even
then, only by small shallow-draft vessels.
2.3 As it proceeds from its origin towards the Caribbean, the San Juan
2.5
River is fed by Costa Rican tributaries, including the San Carlos, Medio Queso,
biodiversity, and Nicaragua has invested considerable efforts to protect and
Pocosol, Infiernito and the Sarapiquí Rivers, as well as numerous smaller rivers
conserve these ecologically-delicate areas.
and streams. The San Juan River also receives a considerable amount of water
2.6
from the region’s heavy rainfall, which ranges from 2,500 to 6,000 millimeters
or near the San Juan River: (i) the San Juan River Wildlife Refuge, consisting of
annually, one of the highest rates of precipitation in the Western Hemisphere. 22
the river itself and a two -kilometer strip abutting the Nicaraguan bank; (ii) the
2.4 Beginning from the point where the River’s south bank forms the
Indio Maíz Biological Reserve, bordering the Nicaraguan side of the river; and
international border, the San Juan River passes through several rapids, and (iii) the San Juan River - Nicaragua Biosphere Reserve, which is affiliated with
narrows to widths no greater than 50 meters. Downstream from this area, the
the Man and the Biosphere Programme of the United Nations Educational,
River is fed by Costa Rica’s San Carlos River and recovers its normal width. It Scientific and Cultural Organization (“UNESCO”).
22See RAMSAR Advisory Mission Report No.69 (Annex 147, p.111 to the Memorial of Costa
Rica (CRM) in the Dispute Concerning Certain Activities Carried out by Nicaragua in the Border 23The UNESCO Programme’s objective is to “set a scientific basis for the improvement of the
Area (Costa Rica v. Nicaragua). relationships between people and their environment globally” and to establish an
“interdisciplinary research agenda and capacity building that target the ecolog Figure 2.2: Sketch Map: The Indio Maíz Biological Reserve (dark green) the Indio Maíz Reserve, discussed below. This conservation area encompasses
and the San Juan River Wildlife Refuge (Yellow)
the San Juan River from its junction with Nicaragua’s Bartola
Caribbean Sea, covering the entire portion of the San Juan where the left and
right banks belong, respectively, to Nicaragua and Costa Rica. The San Juan
River Wildlife Refuge also includes a two-kilometer strip of land extending north
from the river’s left (Nicaraguan) bank to the southern edge of the Indio Maíz
Reserve.
wetland of international importance by Nicaragua under the Convention on
Wetlands of International Importance (the Ramsar Convention).
of the San Juan thus became an internationally recognized and monitored priority.
According to Ramsar, the San Juan River Wildlife Refuge and the adjoining Indio
Maíz Reserve form part of “one of the two most extensive biological nuclei of the
Mesoamerican Biological Corridor.”
(a) The San Juan River Wildlife Refuge
the San Juan River itself, a variety of wetlands, including estuaries and shallow
2.7 In May 1999, Nicaragua created the Southeastern Biosphere
marine waters, coastal freshwater lagoons, a nd inter-tidal marshes, as well as
Reserve of Nicaragua, which includes seven protected areas. 24 One of these
protected areas is the San Juan River Wildlife Refuge, which was carved out of
economic dimensions of biodiversity loss and the reduction of this loSee the official website 25
of UNESCO’s Man and the Biosphere Programme, available at concluded at Ramsar, Iran on 2 Feb. 1971. (United Nations,
http://www.unesco.org/new/en/natural-sciences/environment/ecological-sc…- 26583, 17 Feb. 1976.)
24osphere-programme/ (last visited 4 December 2012).
See Nicaraguan Decree No. 66-99, “Update and Definition of categories and limits of Protected official website, available at http://www.ramsar.org/cda/fr/ramsar -news-archives-2002-nicaragua-
Areas located in Nicaragua’s southeast territory,” 31 May 1999, Art. 2 (NM, Vol. II, Annex 10). announces-7/main/ramsar/1-26-45-87%5E17907_4000_1__ (last visited 4 December 2012).
14 Figure 2.2: Sketch Map: The Indio Maíz Biological Reserve (dark green) the Indio Maíz Reserve, discussed below. This conservation area encompasses
and the San Juan River Wildlife Refuge (Yellow)
the San Juan River from its junction with Nicaragua’s Bartola
Caribbean Sea, covering the entire portion of the San Juan where the left and
right banks belong, respectively, to Nicaragua and Costa Rica. The San Juan
River Wildlife Refuge also includes a two-kilometer strip of land extending north
from the river’s left (Nicaraguan) bank to the southern edge of the Indio Maíz
Reserve.
2.8
wetland of international importance by Nicaragua under the Convention on
Wetlands of International Importance (the Ramsar Convention).
of the San Juan thus became an internationally recognized and monitored priority.
According to Ramsar, the San Juan River Wildlife Refuge and the adjoining Indio
Maíz Reserve form part of “one of the two most extensive biological nuclei of the
Mesoamerican Biological Corridor.”
2.9
(a) The San Juan River Wildlife Refuge
the San Juan River itself, a variety of wetlands, including estuaries and shallow
2.7 In May 1999, Nicaragua created the Southeastern Biosphere
marine waters, coastal freshwater lagoons, a nd inter-tidal marshes, as well as
Reserve of Nicaragua, which includes seven protected areas. 24 One of these
protected areas is the San Juan River Wildlife Refuge, which was carved out of
economic dimensions of biodiversity loss and the reduction of this loSee the official website 25 See “Convention on wetlands of international importance especially as waterfowl habitat,”
of UNESCO’s Man and the Biosphere Programme, available at concluded at Ramsar, Iran on 2 Feb. 1971. (United Nations,
http://www.unesco.org/new/en/natural-sciences/environment/ecological-sc…- 26583, 17 Feb. 1976.)
24osphere-programme/ (last visited 4 December 2012). See Summary Description of Refugio de Vida Silvestre Río San Juan Ramsar site on Ramsar
See Nicaraguan Decree No. 66-99, “Update and Definition of categories and limits of Protected official website, available at http://www.ramsar.org/cda/fr/ramsar -news-archives-2002-nicaragua-
Areas located in Nicaragua’s southeast territory,” 31 May 1999, Art. 2 (NM, Vol. II, Annex 10). announces-7/main/ramsar/1-26-45-87%5E17907_4000_1__ (last visited 4 December 2012). permanent lakes, smaller rivers, and pools. 27 These wetlands support a large created also included most of the San Juan River extending to the Caribbean Sea,
diversity of bird, fish, crustacean, and mammal (both aquatic and terrestrial) which was later designated as a separate reserve in 1999, as discussed above.
species. Scientific expeditions have identified 303 bird species , 26 mammals, 15
reptiles, 3 amphibians, and 61 insects, in addition to 7 species of marine
ecosystems, including humid tropical forests, continental wetlands, mangroves,
28
crustaceans, 13 marine fish species and 10 fresh water fish species. Many of
estuaries, and salt marshes.
these animal species are threatened with extinction. Indeed, there are no less than
animal species, including hundreds of different bird species and mammals such as
46 endangered species inhabiting the San Juan River Wildlife Refuge, including
sloths, wild boars, pumas, pacas, manatees, and monkeys, as well as poison dart
29
the exceptionally rare manatee. The San Juan River Wildlife Refuge also
frogs, snakes, crocodiles, turtles, and iguanas. It is estimated that the Reserve
conserves a great diversity of plant-life.
hosts 221 species of bird s, 65 mammal species, 34 amphibian species, 55 reptile
(b) The Indio Maíz Biological Reserve
species, and 57 species of insects.
2.10 On 17 April 1990, Nicaragua created the San Juan River Indio
Maíz Biological Reserve. 30 The original footprint of this Reserve covered 435.5
square kilometers. Since then, Nicaragua has increased its size to 3,157 square
31
kilometers. In addition to a lar ge expanse of land, the Reserve as originally designated the San Juan River Wildlife Refuge and the Indio Maíz Biological
Reserve as part of the greater international biosphere res
“San Juan River
27Ibid.
28See MARENA, The San Juan River Wildlife Refuge Management Plan, 2005, p. 37 (Annex 40
to the Rejoinder of Nicaragua (NR) in theDispute Regarding Navigational and Related Rights
32
(Costa Rica v. Nicaragua ), 15 July 2008); see also pp. 119-128 (Annex 1 of ibid.) for a table of
29e numerous animal species found in the San Juan River Wildlife Refuge. for the Conservation of Nature , MARENA -ARAUCARIA, 2006 (hereinafter “ The Biological
See ibid., p. 39. Stretch”) (Annex 41 to the Rejoinder of Nicaragua (NR) in the Dispute Regarding Navigational
30See Nicaraguan Executive Decree 527, 17 April 1990, published in Official Gazette Nº 78 of 23 and Related Rights (Costa Rica v. Nicaragua), 15 July 2008).
April 1990 (NM, Vol. II, Annex 8). The same decree which designated the reserves also 33
established a National Commission to manage and develop the protected areas of the Southeast of the Rejoinder of Nicaragua (NR) in the
Nicaragua. (Costa Rica v. Nicaragua), 15 July 2008).
31See MARENA, Southeastern Nicaragua Biosphere Reserve: Strategic Program 2008 34
(hereinafter “Strategic Program 2008 ”) (Annex 47 to the Rejoinder of Nicaragua (NR) in the of Nicaragua (NR) in the
Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 15 July 2008). Nicaragua), 15 July 2008).
16permanent lakes, smaller rivers, and pools. 27 These wetlands support a large created also included most of the San Juan River extending to the Caribbean Sea,
diversity of bird, fish, crustacean, and mammal (both aquatic and terrestrial) which was later designated as a separate reserve in 1999, as discussed above.
species. Scientific expeditions have identified 303 bird species , 26 mammals, 15
2.11
reptiles, 3 amphibians, and 61 insects, in addition to 7 species of marine
ecosystems, including humid tropical forests, continental wetlands, mangroves,
28
crustaceans, 13 marine fish species and 10 fresh water fish species. Many of
estuaries, and salt marshes.
these animal species are threatened with extinction. Indeed, there are no less than
animal species, including hundreds of different bird species and mammals such as
46 endangered species inhabiting the San Juan River Wildlife Refuge, including
sloths, wild boars, pumas, pacas, manatees, and monkeys, as well as poison dart
29
the exceptionally rare manatee. The San Juan River Wildlife Refuge also
frogs, snakes, crocodiles, turtles, and iguanas. It is estimated that the Reserve
conserves a great diversity of plant-life.
hosts 221 species of bird s, 65 mammal species, 34 amphibian species, 55 reptile
(b) The Indio Maíz Biological Reserve
species, and 57 species of insects.
2.10 On 17 April 1990, Nicaragua created the San Juan River Indio
Maíz Biological Reserve. 30 The original footprint of this Reserve covered 435.5
square kilometers. Since then, Nicaragua has increased its size to 3,157 square 2.12
31
kilometers. In addition to a lar ge expanse of land, the Reserve as originally designated the San Juan River Wildlife Refuge and the Indio Maíz Biological
Reserve as part of the greater international biosphere res
“San Juan River
27Ibid.
28See MARENA, The San Juan River Wildlife Refuge Management Plan, 2005, p. 37 (Annex 40
to the Rejoinder of Nicaragua (NR) in theDispute Regarding Navigational and Related Rights
32
(Costa Rica v. Nicaragua ), 15 July 2008); see also pp. 119-128 (Annex 1 of ibid.) for a table of See ibid.; see also A. Meyrat, The Biological Stretch of Southeast Nicaragua: Important Space
29e numerous animal species found in the San Juan River Wildlife Refuge. for the Conservation of Nature , MARENA -ARAUCARIA, 2006 (hereinafter “ The Biological
See ibid., p. 39. Stretch”) (Annex 41 to the Rejoinder of Nicaragua (NR) in the Dispute Regarding Navigational
30See Nicaraguan Executive Decree 527, 17 April 1990, published in Official Gazette Nº 78 of 23 and Related Rights (Costa Rica v. Nicaragua), 15 July 2008).
April 1990 (NM, Vol. II, Annex 8). The same decree which designated the reserves also 33 See MARENA, Indio Maíz Management Plan: 2005 -2010 Period, 9 May 2006 (Annex 42 to
established a National Commission to manage and develop the protected areas of the Southeast of the Rejoinder of Nicaragua (NR) in the
Nicaragua. (Costa Rica v. Nicaragua), 15 July 2008).
31See MARENA, Southeastern Nicaragua Biosphere Reserve: Strategic Program 2008 34UNESCO MAB Biosphere Program Certificate, 15 September 2003 (Annex 39 to the Rejoinder
(hereinafter “Strategic Program 2008 ”) (Annex 47 to the Rejoinder of Nicaragua (NR) in the of Nicaragua (NR) in the
Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 15 July 2008). Nicaragua), 15 July 2008). recognized and supported biosphere covers 18,340 square kilomet ers, a full 14 species such as the jaguar or American tiger
35
percent of Nicaragua’s national territory. The Biosphere Reserve covers a wide biardii) and the red and green parrot (Psittacideae).”
variety of ecosystems, including tropical humid forests and wetlands, tidal
marshes, coastal lagoons and estuaries, all of which are important shelters for rare
or threatened animals and plant resources of the Meso-American tropics. In total,
undeveloped and, as discussed above, consists largely of protected environmental
the Biosphere Res erve includes 19 natural ecosystems and is inhabited by 555
reserves. The scattered human communities that make their homes along the
species, including 27 types of amphibians, 388 bird species, and 60 species of
bank of the River
mammals. 36
sustenance. Much of the local population relies on the fish and shrimp found in
2.13 This comprehensive reserve system is built around several nucleus the River, and the crops nourished by its waters and nutrients, for sustenance
zones.37 One of the principal zones is th e Indio Maíz Biological Reserve.
and/or income. Put simply, the health of the human communities along the river
According to UNESCO, “the vast size of the biosphere reserve, in addition to its is dependent upon the health of the River itself.
proximity to neighbouring Costa Rican protected areas, and as part of the
Mesoamerican Biological Corridor, guarantee an adequate area for pr eserving
genetic diversity, free mobility of species, breeding and maintenance of major
regarding a very small
located at the extreme eastern terminus of their common land boundary next to
the Caribbean coast, in an area which Costa Rica calls Isla
Nicaragua calls Harbour Head, and which the Parties have sub mitted to the Court
35See “Indio Maíz Declared World Biosphere Reserve,” La Prensa, 10 July 2003 (Annex 24 to
the Rejoinder of Nicaragua (NR) in thDispute Regarding Navigational and Related Rights
(Costa Rica v. Nicaragua), 15 July 2008).
36See The Biological Stretch , p. 9 and 21 (Annex 41 to the Rejoinder of Nicaragua (NR) in the 38
Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 15 July 2008). Reserves Directory (Annex 45 to the Rejoinder of Nicaragua (NR) in
37See Strategic Program 2008 (Annex 47 to the Rejoinder of Nicaragua (N) in the Dispute Navigational and Related Rights (Costa Rica v. Nicaragua), 15 July 2008).
Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 15 July 2008).
18recognized and supported biosphere covers 18,340 square kilomet ers, a full 14 species such as the jaguar or American tiger
35
percent of Nicaragua’s national territory. The Biosphere Reserve covers a wide biardii) and the red and green parrot (Psittacideae).”
variety of ecosystems, including tropical humid forests and wetlands, tidal
marshes, coastal lagoons and estuaries, all of which are important shelters for rare
2.14
or threatened animals and plant resources of the Meso-American tropics. In total,
undeveloped and, as discussed above, consists largely of protected environmental
the Biosphere Res erve includes 19 natural ecosystems and is inhabited by 555
reserves. The scattered human communities that make their homes along the
species, including 27 types of amphibians, 388 bird species, and 60 species of
bank of the River
mammals. 36
sustenance. Much of the local population relies on the fish and shrimp found in
2.13 This comprehensive reserve system is built around several nucleus the River, and the crops nourished by its waters and nutrients, for sustenance
zones. 37 One of the principal zones is th e Indio Maíz Biological Reserve.
and/or income. Put simply, the health of the human communities along the river
According to UNESCO, “the vast size of the biosphere reserve, in addition to its is dependent upon the health of the River itself.
proximity to neighbouring Costa Rican protected areas, and as part of the
B .
Mesoamerican Biological Corridor, guarantee an adequate area for pr eserving
genetic diversity, free mobility of species, breeding and maintenance of major 2.15
regarding a very small
located at the extreme eastern terminus of their common land boundary next to
the Caribbean coast, in an area which Costa Rica calls Isla
Nicaragua calls Harbour Head, and which the Parties have sub mitted to the Court
35See “Indio Maíz Declared World Biosphere Reserve,” La Prensa, 10 July 2003 (Annex 24 to
the Rejoinder of Nicaragua (NR) in thDispute Regarding Navigational and Related Rights
(Costa Rica v. Nicaragua), 15 July 2008).
36See The Biological Stretch , p. 9 and 21 (Annex 41 to the Rejoinder of Nicaragua (NR) in the 38See “Biosphere Reserve Information: Nicaragua: Río San Juan,” UNESCO
Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 15 July 2008). Reserves Directory (Annex 45 to the Rejoinder of Nicaragua (NR) in
37See Strategic Program 2008 (Annex 47 to the Rejoinder of Nicaragua (N) in the Dispute Navigational and Related Rights (Costa Rica v. Nicaragua), 15 July 2008).
Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 15 July 2008). for adjudication in the Case Concerning Certain Activities Carried Out by and the border side of the Río San Juan.”
Nicaragua in the Border Area. By its Order of 8 March 2011, the Court indicated accusation in its Written Observations on the Admissibility of Nicaragua’s
provisional measures that, among other things, required the Parties to “refrain Counter-Claims in the Case Concerning Certain Activities, where it suggests that
from sending to, or maintaining in the disputed territory…any personnel, whether “[t]he road was built” as “a consequence of Nicaragua’s invasion and occupation
39
civilian, police or security.” Nicaragua immediately complied with the Order, of Costa Rica” in order “to facilitate the mobilization of Costa Rican police and
removing all Nicaraguan governmental personnel from the area, as it reported to riparians in case of armed conflict…”
the Court on 5 April 2011. 40
2.16 Apparently dissatisfied with the provisional measures indicated by false: no Nicaraguan military or other governmental personnel have been present
the Court, Costa Rica has chosen to take additional measures unilaterally, and in a in the disputed area since December 2010. Nicaragua so informed the Court
way which, as will be shown, has put the delicate environment of the San Juan during the Ja nuary 2011 hearings on provisional measures;
River at grave risk. In pa rticular, Costa Rica has adopted the pretense that it 2011 written response to a question by Judge Bennouna at the end of those
needed to construct the Road to address alleged “security” concerns, purportedly hearings;
arising from the territorial dispute near the mouth of the River. In that vein, explained in the latter submission: “Afte r the Order was read in open court, all
Costa Rica’s Vice Minister of Environmen t, Energy and Telecommunications,
Ms. Lorena Guevara, stated that building the Road was required because of the 41
parallel to Río San Juan,” 1 November 2011 (NM, Vol. II, Annex 22).
“latent threat” of “incursions from Nicaragua,” which she said, had made it 42
v. Nicaragua), Written Observations of Costa Rica on the Admissibility of Nicaragua’s Counter-
necessary to “design vigilance mechanisms and ensure permanent prese nce of its Claims, 30 November 2012, para. 2.20.
43
v. Nicaragua), Provisional Measures Hearing, CR 2011/2, para. 28 (Argüello Gómez) (“There are
police forces in the conflict zone at the southernmost part of the Colorado Delta,
no troops presently in the swampland. There is no permanent military post in the area.”); CR
2011/4, para. 15 (Argüello Gómez) (“Nicaragua has no intention of stationing troops or personnel
of any type in
coincides with the area Costa Rica alludes to with other names.”).
44
39 I.C.J., Order, 28 March 2011, Case Concerning Certain Activities Carried Out by Nicaragua in v. Nicaragua), Provisional Measures Hearing, Reply of the Republic of Nicaragua to the questions
the Border Area (Costa Rica v. Nicaragua), Request for the indication of provisional measures. put by Judges Simma, Bennouna and Greenwood, 18 January 2011.
40 Case Concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica 45
v. Nicaragua) , Nicaragua’s Report to the Court on Compliance with the Provisional Measures v. Nicaragua) , Nicaragua’s R eport to the Court on Compliance with the Provisional Measures
Order, 5 April 2011. Order, 5 April 2011.
20for adjudication in the Case Concerning Certain Activities Carried Out by and the border side of the Río San Juan.”
Nicaragua in the Border Area. By its Order of 8 March 2011, the Court indicated accusation in its Written Observations on the Admissibility of Nicaragua’s
provisional measures that, among other things, required the Parties to “refrain Counter-Claims in the Case Concerning Certain Activities, where it suggests that
from sending to, or maintaining in the disputed territory…any personnel, whether “[t]he road was built” as “a consequence of Nicaragua’s invasion and occupation
39
civilian, police or security.” Nicaragua immediately complied with the Order, of Costa Rica” in order “to facilitate the mobilization of Costa Rican police and
removing all Nicaraguan governmental personnel from the area, as it reported to riparians in case of armed conflict…”
the Court on 5 April 2011. 40 2.17
2.16 Apparently dissatisfied with the provisional measures indicated by false: no Nicaraguan military or other governmental personnel have been present
the Court, Costa Rica has chosen to take additional measures unilaterally, and in a in the disputed area since December 2010. Nicaragua so informed the Court
way which, as will be shown, has put the delicate environment of the San Juan during the Ja nuary 2011 hearings on provisional measures;
River at grave risk. In pa rticular, Costa Rica has adopted the pretense that it 2011 written response to a question by Judge Bennouna at the end of those
needed to construct the Road to address alleged “security” concerns, purportedly hearings;
arising from the territorial dispute near the mouth of the River. In that vein, explained in the latter submission: “Afte r the Order was read in open court, all
Costa Rica’s Vice Minister of Environmen t, Energy and Telecommunications,
Ms. Lorena Guevara, stated that building the Road was required because of the 41
University Seminar, Costa Rica "Environmental damage feared due to construction of highway
parallel to Río San Juan,” 1 November 2011 (NM, Vol. II, Annex 22).
“latent threat” of “incursions from Nicaragua,” which she said, had made it 42Case Concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica
v. Nicaragua), Written Observations of Costa Rica on the Admissibility of Nicaragua’s Counter-
necessary to “design vigilance mechanisms and ensure permanent prese nce of its Claims, 30 November 2012, para. 2.20.
43Case Concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica
v. Nicaragua), Provisional Measures Hearing, CR 2011/2, para. 28 (Argüello Gómez) (“There are
police forces in the conflict zone at the southernmost part of the Colorado Delta,
no troops presently in the swampland. There is no permanent military post in the area.”); CR
2011/4, para. 15 (Argüello Gómez) (“Nicaragua has no intention of stationing troops or personnel
of any type in
coincides with the area Costa Rica alludes to with other names.”).
44Case Concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica
39I.C.J., Order, 28 March 2011, Case Concerning Certain Activities Carried Out by Nicaragua in v. Nicaragua), Provisional Measures Hearing, Reply of the Republic of Nicaragua to the questions
the Border Area (Costa Rica v. Nicaragua), Request for the indication of provisional measures. put by Judges Simma, Bennouna and Greenwood, 18 January 2011.
40Case Concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica 45Case Concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica
v. Nicaragua) , Nicaragua’s Report to the Court on Compliance with the Provisional Measures v. Nicaragua) , Nicaragua’s R eport to the Court on Compliance with the Provisional Measures
Order, 5 April 2011. Order, 5 April 2011. Nicaraguan personnel in the disputed territory, including civilian personnel, were
46
withdrawn and have stayed away from the area.”
2.18 Moreover, the falsity of Costa Rica’s pretense regarding a
purported security “emerge ncy” in relation to the territorial dispute on the
Caribbean coast is exposed by a brief glance at a map of the area. The 250
hectares of disputed land in Harbour Head are far removed from the areas where
Costa Rica has placed its Road. As illustrated by the map that Costa Rica
appended to its 30 November 2012 Written Observations on the Admissibility of
Nicaragua’s Counter-Claims in the Case Concerning Certain Activities, the Road
is located far to the west of the disputed area. 47
48
Decree” declaring “that the process unfolded by the violation of Costa Rican
sovereignty on the part of Nicaragua conforms a state of emergency.”
alleged basis for the emergency was the so
occupation of Costa Rica by Nicaragua,” and the allegation that
48
46Ibid. v. Nicaragua), Written Observations of Costa Rica on the Admissibility of Nicaragua’s Counter-
47Case Concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica Claims, 30 November 2012, Sketch Map 1.
49
v. Nicaragua), Written Observations of Costa Rica on the Admissibility of Nicaragua’s Counter-
Claims, 30 November 2012, Sketch Map 1. CXXXIII, Monday, 7 March 2011, p. 2 (NM, Vol. II, Annex 11).
22Nicaraguan personnel in the disputed territory, including civilian personnel, were
46
withdrawn and have stayed away from the area.”
2.18 Moreover, the falsity of Costa Rica’s pretense regarding a
purported security “emergency” in relation to the territorial dispute on the
Caribbean coast is exposed by a brief glance at a map of the area. The 250
hectares of disputed land in Harbour Head are far removed from the areas where
Costa Rica has placed its Road. As illustrated by the map that Costa Rica
appended to its 30 November 2012 Written Observations on the Admissibility of
Nicaragua’s Counter-Claims in the Case Concerning Certain Activities, the Road
is located far to the west of the disputed area. 47
48
2.19
Decree” declaring “that the process unfolded by the violation of Costa Rican
sovereignty on the part of Nicaragua conforms a state of emergency.”
alleged basis for the emergency was the so
occupation of Costa Rica by Nicaragua,” and the allegation that
48Case Concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica
46Ibid. v. Nicaragua), Written Observations of Costa Rica on the Admissibility of Nicaragua’s Counter-
47Case Concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica Claims, 30 November 2012, Sketch Map 1.
49
v. Nicaragua), Written Observations of Costa Rica on the Admissibility of Nicaragua’s Counter- La Uruca, San José, Costa Rica, Official Daily Gazette No. 46, Decree No. 36440-MP, Year
Claims, 30 November 2012, Sketch Map 1. CXXXIII, Monday, 7 March 2011, p. 2 (NM, Vol. II, Annex 11). 50
troops…now occupy a part of the territory of Costa Rica.” Costa Rica’s Prevention and Attention to Emergencies, promulgated regulations
Emergency Decree further declared, against all evidence, that the “actions carried implementing the “Emergency Decree.”
out by the army of Nicaragua and the Government of that country” prevented procedures that do not comply with the normal Costa Rican rules for major
“normal functioning conditions for activity in several Costa Rican communities construction projects, on the ground that “in carry[ing] out the specific purchasing
51
along the border area….” At the time, there were no Nicaraguan military forces and contracting process necessary by virtue of the emergency resulting f rom the
in or near the area claimed by C osta Rica, and normal life in Costa Rica violation of Costa Rican sovereignty by Nicaragua…a specific mechanism under
continued unimpeded. [the Emergency Decree] is required for purchasing and contracting
2.20 Having created a fictitious problem, the Emergency Decree processes.”
proceeded to “solve” it by declaring that Costa Rica’s “constitutional system” avoided: “the specific nature of the event that created the emergency, which was
permits the application of “special norms that allow the Executive Branch to an act of aggression on the part of the neighbor country of Nicaragua, imposes
address emergency situations so that action in that regard can be as agile and taking actions that are different from those generally carried out under the
52
decisive as merited by the circumstances.” As it turns out, the agility and regimen of exception and under the control of the National Commission on Risk
decisiveness needed by Costa Rica was to relieve itself from any obligation to Prevention and Attention to Emergencies….”
conduct an Environmental Impact Assessment ( “EIA”) prior to constructing the
Road, or to subject the project to any meaningful regulatory or environmental decisions not to carry out a prior EIA, and not to notify and consult with
protection measures at all. Nicaragua in advance of undertaking the wor
2.21 In particular, on 21 September 2011, that is 6 months after the purpose of the “Emergency Decree” was to exempt itself from its obligation
Emergency Decree had been issued and had been de facto implemented, the under Costa Rican law to conduct an EIA. This was acknowledged by the
Presidency of Costa Rica, acting through its National Commission on Risk
53
to Emergencies, “Specific by-laws regarding purchasing and contracts procedures under exception
mechanisms regimen by virtue of the declaration of a state of emergency by v irtue of Decree No.
50Ibid. 36440,” 21 September 2011 (NM, Vol. II, Annex 12).
51Ibid. 54
52Ibid. 55
24 50
troops…now occupy a part of the territory of Costa Rica.” Costa Rica’s Prevention and Attention to Emergencies, promulgated regulations
Emergency Decree further declared, against all evidence, that the “actions carried implementing the “Emergency Decree.”
out by the army of Nicaragua and the Government of that country” prevented procedures that do not comply with the normal Costa Rican rules for major
“normal functioning conditions for activity in several Costa Rican communities construction projects, on the ground that “in carry[ing] out the specific purchasing
51
along the border area….” At the time, there were no Nicaraguan military forces and contracting process necessary by virtue of the emergency resulting f rom the
in or near the area claimed by C osta Rica, and normal life in Costa Rica violation of Costa Rican sovereignty by Nicaragua…a specific mechanism under
continued unimpeded. [the Emergency Decree] is required for purchasing and contracting
2.20 Having created a fictitious problem, the Emergency Decree processes.”
proceeded to “solve” it by declaring that Costa Rica’s “constitutional system” avoided: “the specific nature of the event that created the emergency, which was
permits the application of “special norms that allow the Executive Branch to an act of aggression on the part of the neighbor country of Nicaragua, imposes
address emergency situations so that action in that regard can be as agile and taking actions that are different from those generally carried out under the
52
decisive as merited by the circumstances.” As it turns out, the agility and regimen of exception and under the control of the National Commission on Risk
decisiveness needed by Costa Rica was to relieve itself from any obligation to Prevention and Attention to Emergencies….”
conduct an Environmental Impact Assessment ( “EIA”) prior to constructing the 2.22
Road, or to subject the project to any meaningful regulatory or environmental decisions not to carry out a prior EIA, and not to notify and consult with
protection measures at all. Nicaragua in advance of undertaking the wor
2.21 In particular, on 21 September 2011, that is 6 months after the purpose of the “Emergency Decree” was to exempt itself from its obligation
Emergency Decree had been issued and had been de facto implemented, the under Costa Rican law to conduct an EIA. This was acknowledged by the
Presidency of Costa Rica, acting through its National Commission on Risk
53
Decree No. 0362-2011 of Costa Rica’s National Commission on Risk Prevention and Attention
to Emergencies, “Specific by-laws regarding purchasing and contracts procedures under exception
mechanisms regimen by virtue of the declaration of a state of emergency by v irtue of Decree No.
50Ibid. 36440,” 21 September 2011 (NM, Vol. II, Annex 12).
51Ibid. 54Ibid.
52Ibid. 55Ibid. Foreign Minister of Costa Rica, Mr. Enrique Castillo, who publicly stated that the
construction of the Road was not the subject of an EIA because it was carried out
in the context of an emergency decree that “exempted” the project from these
requirements: “This is a sovereign project we are carrying out under a decree that
exempts u s from Environmental Impact Assessment, tha t is why we owe no
56 they were not consulted about the project before it was carried out. In particular,
explanations.”
Mr. Uriel Juárez , Secretary General of the National Environmental Technical
2.23 In November 2011, Costa Rica’s Vice Minister of Environment,
Secretariat, admitted that his agency was not consulted about the Road or its
Energy and Telecommunications (MINAET), Ms. Lorena Guevara, responded to
environmental impacts: “There has been no request or inquiry regarding criteria
questions regarding the consequences of the Emergency Decree and the works
here.”
initiated under it. When asked whether her agency had been involved in the
supervision of the project, given its location in protected land, she responded that
the Decree “was issued in the middle of the situation and proce ss caused by the to prepare basic engineering plans or blueprints before commencing construction.
Nicaraguan violation of Costa Rica’s sovereignty, [in] particular in Isla Calero, This was acknowledged by the Costa Rican Ministry responsible for carrying out
and because of the environmental damage” purportedly caused to Costa Rican the project, the National Roads Authority (
land.57 She declared that Costa Rica had not carried out an EIA because that “CONAVI” per its Spanish initials), an entity within Costa Rica’s Ministry of
obligation had been relieved by Costa Rica’s self-declared “emergency”: Public Works and Transportation. In May 2012, in the wake of a corruption
scandal concerning the awarding of contracts in regard to the Road (whose
Due consideration should be given to the particular
nature of the event that led to the decree and the
General Emergency Plan developed to address it. perpetrators CONAVI vowed “to punish”), CONAVI acknowledged that standard
This was essentially a political phen omenon with
procedures had not been followed and that the project was not “subjected to the
many effects and variants that are difficult to
procedures for development of infrastructure projects that take into account, for
56El Nuevo Diario, Nicaragua “Outrage Everywhere Over San Juan River Parallel Highway, No
Studies Done for Costa Rican Highway,” 15 December 2011 (NM, Vol. II, Annex 25).
57University Seminar, Costa Rica “Environmental damage feared due to construction of highway 58
parallel to Río San Juan,” 1 November 2011 (NM, Vol. II, Annex 22). 59
26Foreign Minister of Costa Rica, Mr. Enrique Castillo, who publicly stated that the
construction of the Road was not the subject of an EIA because it was carried out
in the context of an emergency decree that “exempted” the project from these
requirements: “This is a sovereign project we are carrying out under a decree that
2.24
exempts u s from Environmental Impact Assessment, tha t is why we owe no
56 they were not consulted about the project before it was carried out. In particular,
explanations.”
Mr. Uriel Juárez , Secretary General of the National Environmental Technical
2.23 In November 2011, Costa Rica’s Vice Minister of Environment,
Secretariat, admitted that his agency was not consulted about the Road or its
Energy and Telecommunications (MINAET), Ms. Lorena Guevara, responded to
environmental impacts: “There has been no request or inquiry regarding criteria
questions regarding the consequences of the Emergency Decree and the works
59
here.”
initiated under it. When asked whether her agency had been involved in the
supervision of the project, given its location in protected land, she responded that 2.25
the Decree “was issued in the middle of the situation and proce ss caused by the to prepare basic engineering plans or blueprints before commencing construction.
Nicaraguan violation of Costa Rica’s sovereignty, [in] particular in Isla Calero, This was acknowledged by the Costa Rican Ministry responsible for carrying out
and because of the environmental damage” purportedly caused to Costa Rican the project, the National Roads Authority (
land.57 She declared that Costa Rica had not carried out an EIA because that “CONAVI” per its Spanish initials), an entity within Costa Rica’s Ministry of
obligation had been relieved by Costa Rica’s self-declared “emergency”: Public Works and Transportation. In May 2012, in the wake of a corruption
scandal concerning the awarding of contracts in regard to the Road (whose
Due consideration should be given to the particular
nature of the event that led to the decree and the
General Emergency Plan developed to address it. perpetrators CONAVI vowed “to punish”), CONAVI acknowledged that standard
This was essentially a political phen omenon with
procedures had not been followed and that the project was not “subjected to the
many effects and variants that are difficult to
procedures for development of infrastructure projects that take into account, for
56El Nuevo Diario, Nicaragua “Outrage Everywhere Over San Juan River Parallel Highway, No
Studies Done for Costa Rican Highway,” 15 December 2011 (NM, Vol. II, Annex 25).
57University Seminar, Costa Rica “Environmental damage feared due to construction of highway 58Ibid.
parallel to Río San Juan,” 1 November 2011 (NM, Vol. II, Annex 22). 59Ibid. example, stages of conceptuali zation, feasibility, design, and management of the
60
work.” By way of explanation, CONAVI felt compelled to issue the following
statement:
Because of the serious questions posed by the
media about the actions taken by the National
Roads Authority (CONAVI) in relation to the
construction of Route 1856 and in order to provide
citizens with stronger evidence to enable it to form
a comprehensive and objective opinion of the
circumstances in which the work has been
developed, the National Roads Authority clarifies:
1. The first thing that needs to be understood is that
the works on Route 1856 were done in a context of
national emergency and faced with a situation that
clearly and obviously affected the sovereignty and
security of our country. Failing to recogn ize and the National Laboratory of the Unive rsity of Costa Rica, published a May 2012
understand that this was the situation, would lead
any person to make judgments of opinion based on report criticizing the construction of Highway 1856, which it found to have been
an incomplete assessment of the facts and
circumstances. carried out “without any basic geometric design” or proper coordination and
2. The work on Route 1856 was done under those controls. It also found that, contrary to standard practice , “no uniform technical
circumstances. Therefore it must be under stood
that some of the determining factors of the action criteria were set in project implementation”.
taken were to act quickly but within the framework
of discretion, that is, motivated based on the best by Costa Rica’s Federated Association of Engineers and Architects in June 2012,
interests of the nation. In fact, an Emergency
when it reported that the Road had been built “without a single plan to indicate
Decree was issued in order to give context to th e
nature of the situation.
the path that was to be opened, or what its characteristics should have been,”
3. As the Costa Rican people will understand, in
these circumstances it could not be expected that
the works of the route be developed within the
framework of standard procedures but rather under 61
the exceptions provided for in the Constitution and 62
“Report INF-PITRA-014-12: Report from Inspection of Route 1856
63rder Road,” May 2012 (hereinafter “LANAMME Report”), pp. 50-51 (NM, Vol. II, Annex 3).
60
CONAVI Press Release, 25 May 2012 (NM, Vol. II, Annex 34). on the Border Road, Northern Area Parallel to the San Juan River CFIA Report,” 8 June 2012
28example, stages of conceptuali zation, feasibility, design, and management of the
60
work.” By way of explanation, CONAVI felt compelled to issue the following
statement:
Because of the serious questions posed by the
media about the actions taken by the National
Roads Authority (CONAVI) in relation to the
construction of Route 1856 and in order to provide
citizens with stronger evidence to enable it to form
a comprehensive and objective opinion of the
circumstances in which the work has been
developed, the National Roads Authority clarifies:
1. The first thing that needs to be understood is that
the works on Route 1856 were done in a context of
2.26
national emergency and faced with a situation that
clearly and obviously affected the sovereignty and
security of our country. Failing to recogn ize and the National Laboratory of the Unive rsity of Costa Rica, published a May 2012
understand that this was the situation, would lead
any person to make judgments of opinion based on report criticizing the construction of Highway 1856, which it found to have been
an incomplete assessment of the facts and
circumstances. carried out “without any basic geometric design” or proper coordination and
2. The work on Route 1856 was done under those controls. It also found that, contrary to standard practice , “no uniform technical
circumstances. Therefore it must be under stood
that some of the determining factors of the action criteria were set in project implementation”.
taken were to act quickly but within the framework
of discretion, that is, motivated based on the best by Costa Rica’s Federated Association of Engineers and Architects in June 2012,
interests of the nation. In fact, an Emergency
when it reported that the Road had been built “without a single plan to indicate
Decree was issued in order to give context to th e
nature of the situation.
the path that was to be opened, or what its characteristics should have been,”
3. As the Costa Rican people will understand, in
these circumstances it could not be expected that
the works of the route be developed within the
framework of standard procedures but rather under 61Ibid.
the exceptions provided for in the Constitution and 62National Laboratory of Materials and Structural Models of the University of Costa Rica,
“Report INF-PITRA-014-12: Report from Inspection of Route 1856
63rder Road,” May 2012 (hereinafter “LANAMME Report”), pp. 50-51 (NM, Vol. II, Annex 3).
60 Federated Association of Engineers and Architects of Costa Rica, “Report on Inspection of the
CONAVI Press Release, 25 May 2012 (NM, Vol. II, Annex 34). on the Border Road, Northern Area Parallel to the San Juan River CFIA Report,” 8 June 2012 error that was bound to cause “increased costs, environmental problems, and a
rapid deterioration of the project.”64 In that regard, the professional association of
Costa Rican engineers and architects was prescient, as shown in the next Chapter
of this Memorial.
C . COSTA RICA’S REFUSAL TO PROVIDE INFORMATI ON
OR TO CONDUCT AN EIA ON THE ROAD
CONSTRUCTION
2.27 In light of the serious ri sks that the Road posed to the San Juan
River and its environment, Nicaragua repeatedly requested that Costa Rica
provide it with information about the project. These requests were uniformly
response suggested that it was
rebuffed.
might be affected, stating that it was for “the Government of Nicaragua to present
2.28 On 29 November 2011, the acting Foreign Minister of Nicaragua
formally the reasons for which it considers that there may be
sent a diplomatic note to his Costa Rican counterpart requesting information
damage or damage to Nicaragua’s interests.”
about the Road. The note specifically pointed out that:
[A]ll project[s] of this nature should have an
was Costa Rica’s “obligation…
Environmental Impact Assessment due to their
characteristics. Fu rther, this assessment should
commencement of the road, the Environmental Impact Assessment and th
(hereinafter “CFIA Report”), p. 25, para. 5.3; see also, ibid., p. 27, para. 6.3 (recommending the Environmental Management Plan,” both of which were “fundamental requisite[s]
post-hoc preparation of “[a] detailed topographical blueprint of all work done to the present” and
the “[d]evelopment of all pertinent designs and construction blueprints for the whole of the
64oject.”) (NM, Vol. II, Annex 4).
Ibid., p. 25, para. 5.See also La Nación, Costa Rica, E. Rivera, E. Oviedo & R. Rojas,
“Serious errors expose trail to risk of collapse during the rainy season,” 28 May 2012
(highlighting a lack of geotechnical or topographical information) (NM, Vol. II, AnnSee35). 65
also CFIA Report, pp. 25 -26, para. 5.6 (“As reflected in the photographs and as observed along
certain stretches, it is presumed that protected areas were not taken into account,” citing Forest Affairs of Costa Rica, Ref: MRE/DVM/AJST/500/11/11, Managua, 29 November 2011 (NM,
Law No. 7575 and Law No. 276 to Regulate Water Resources), para. 5.9 (noting a possible failure Vol. II, Annex 14).
to obtain “the necessary permits”) & para. 5.10 (noting that compliance with Article 45 of the 66
Organic Environmental Law should be assessed, given the project’s impact on wetlands) (NM, Minister of Foreign Affairs of Nicaragua, Ref: DM-AM-601-11, 29 November 2011 (NM, Vol. II,
Vol. II, Annex 4). Annex 15).
30error that was bound to cause “increased costs, environmental problems, and a
rapid deterioration of the project.”64 In that regard, the professional association of
Costa Rican engineers and architects was prescient, as shown in the next Chapter
of this Memorial.
C . COSTA RICA’S REFUSAL TO PROVIDE INFORMATI ON
OR TO CONDUCT AN EIA ON THE ROAD
CONSTRUCTION
2.27 In light of the serious ri sks that the Road posed to the San Juan
River and its environment, Nicaragua repeatedly requested that Costa Rica
2.29
provide it with information about the project. These requests were uniformly
response suggested that it was
rebuffed.
might be affected, stating that it was for “the Government of Nicaragua to present
2.28 On 29 November 2011, the acting Foreign Minister of Nicaragua
formally the reasons for which it considers that there may be
sent a diplomatic note to his Costa Rican counterpart requesting information
damage or damage to Nicaragua’s interests.”
about the Road. The note specifically pointed out that:
2.30
[A]ll project[s] of this nature should have an
was Costa Rica’s “obligation…
Environmental Impact Assessment due to their
characteristics. Fu rther, this assessment should
commencement of the road, the Environmental Impact Assessment and th
(hereinafter “CFIA Report”), p. 25, para. 5.3; see also, ibid., p. 27, para. 6.3 (recommending the Environmental Management Plan,” both of which were “fundamental requisite[s]
post-hoc preparation of “[a] detailed topographical blueprint of all work done to the present” and
the “[d]evelopment of all pertinent designs and construction blueprints for the whole of the
64oject.”) (NM, Vol. II, Annex 4).
Ibid., p. 25, para. 5.3See also La Nación, Costa Rica, E. Rivera, E. Oviedo & R. Roas,
“Serious errors expose trail to risk of collapse during the rainy season,” 28 May 2012
(highlighting a lack of geotechnical or topographical information) (NM, Vol. II, AnnSee35). 65
also CFIA Report, pp. 25 -26, para. 5.6 (“As reflected in the photographs and as observed along Diplomatic Note from the Minister of Foreign Affairs of Nicaragua, to the Minister of Foreign
certain stretches, it is presumed that protected areas were not taken into account,” citing Forest Affairs of Costa Rica, Ref: MRE/DVM/AJST/500/11/11, Managua, 29 November 2011 (NM,
Law No. 7575 and Law No. 276 to Regulate Water Resources), para. 5.9 (noting a possible failure Vol. II, Annex 14).
to obtain “the necessary permits”) & para. 5.10 (noting that compliance with Article 45 of the 66Diplomatic Note from the Minister of Foreign Affairs and Worship of Costa
Organic Environmental Law should be assessed, given the project’s impact on wetlands) (NM, Minister of Foreign Affairs of Nicaragua, Ref: DM-AM-601-11, 29 November 2011 (NM, Vol. II,
Vol. II, Annex 4). Annex 15). to carry[ing] out a project of such a magnitude.” 67 Nicaragua suggested that
Costa Rica was “[t]rying to invert the logic in regard to” its “obligations” to carry
out an EIA and consult with Nicaragua by shifting to Nicaragua the burden of
first showing the risks of Costa Rica’s project before Costa Rica’ s obligations
68
would be engaged.
2.31 Nonetheless, Nicaragua set out in detail its concerns about the
ecological consequences of the Road project, informing Costa Rica that:
it is evident that the construction of the road
seriously affects the environment an d the rights of
Nicaragua. If the project is not ceased it would
have irreversible and transcendental ecological and
environmental consequences.
Among the many consequences that can be
highlighted are the following:
1. Dumping of trees and soil along th e route of the
road into the river flow, making more difficult and
risking the navigation in its waters, over which
Nicaragua has the dominion and sovereign In light of these environmental concerns, Nicaragua stated:
jurisdiction based on the Treaty of 15th April 1858
and the Cleveland Award of 22nd March 1888.
2. Removal and sedimentation of fragile soils
resulting in an increased and excessive
sedimentation of the waters of the Nicaraguan river.
67Diplomatic Note from the Minister of Foreign Affairs of Nicaragua, to the Minister of Foreign
Affairs of Costa Rica, Ref: MRE/DVS/VJW/068 5/12/11, Managua, 10 December, 2011 (NM,
Vol. II, Annex 16).
68Ibid. 69
70
32to carry[ing] out a project of such a magnitude.” 67 Nicaragua suggested that
Costa Rica was “[t]rying to invert the logic in regard to” its “obligations” to carry
out an EIA and consult with Nicaragua by shifting to Nicaragua the burden of
first showing the risks of Costa Rica’s project before Costa Rica’ s obligations
68
would be engaged.
2.31 Nonetheless, Nicaragua set out in detail its concerns about the
ecological consequences of the Road project, informing Costa Rica that:
it is evident that the construction of the road
seriously affects the environment an d the rights of
Nicaragua. If the project is not ceased it would
have irreversible and transcendental ecological and
environmental consequences.
Among the many consequences that can be
highlighted are the following:
1. Dumping of trees and soil along th e route of the
road into the river flow, making more difficult and
risking the navigation in its waters, over which
Nicaragua has the dominion and sovereign In light of these environmental concerns, Nicaragua stated:
jurisdiction based on the Treaty of 15th April 1858
and the Cleveland Award of 22nd March 1888.
2. Removal and sedimentation of fragile soils
resulting in an increased and excessive
sedimentation of the waters of the Nicaraguan river.
67Diplomatic Note from the Minister of Foreign Affairs of Nicaragua, to the Minister of Foreign
Affairs of Costa Rica, Ref: MRE/DVS/VJW/068 5/12/11, Managua, 10 December, 2011 (NM,
Vol. II, Annex 16).
68Ibid. 69
70Ibid.
Ibid. 2.32 However, Costa Rica continued to reject Nicaragua’s request for concerns – on 10 December 2011 Nicaragua informed the United Nations
information about the Road and persisted in refusing to conduct an EIA. Three Environment Programme ( “UNEP”) about “the damages and current threats to
days after Nicaragua’s second diplomatic note, the President of Costa Rica, Ms. our natural patrimony in the Biosphere Reserve of the Rio San Juan as a result of
Laura Chinchilla, declared that Costa Rica had “issued an emergency decree due the construction by Costa Rica of a 130 km long road parallel to the San Juan
to national necessity and it is on that basis that we have developed the projects. River.”
We are not taking even one step back.” 71 Accordingly, President Chinchilla immediate vegetation to the river flow…
declared that Costa Rica has “no reason to offer explanations to the Government interrelationship of the ecosystem and biological corridors, and has endangered
of Nicaragua.” 72 the existing fragile biodiversity.”
2.33 This policy decision was repea ted by Costa Rica’s Minister of
Foreign Affairs, Mr. Enrique Castillo, who, as noted above, stated that the Road’s
construction had not been the subject of a prior EIA because it was being carried
out pursuant to an emergency decree that “exempted” it from any such
73
requirement. Minister Castillo further stated that Costa Rica was not obligated
to give any explanation to Nicaragua, declaring that “this is a sovereign project
we are carrying out under a decree that exempts us from environmental impact
studies, that is why we owe no explanations.” 74
2.34 In view of Costa Rica’s “no explanations” policy – including its
refusal to conduct a prior EIA or otherwise consult with Nicaragua about its
71El País, Costa Rica “Chinchilla defends highway criticized by Nicaragua, rejects dialogue,”
14 December 2011 (NM, Vol. II, Annex 24).
72Ibid. 75
73See El Nuevo Diario, Nicaragua, “Outrage Everywhere Over San Juan River Parallel Highway, to the United Nations Environmental Program (UNEP), 10 December 2011 (NM, Vol. II, Annex
No Studies Done for Costa Rican Highway,” 15 December 2011 (NM, Vol. II, Annex 25). 18).
74Ibid. 76
34 2.32 However, Costa Rica continued to reject Nicaragua’s request for concerns – on 10 December 2011 Nicaragua informed the United Nations
information about the Road and persisted in refusing to conduct an EIA. Three Environment Programme ( “UNEP”) about “the damages and current threats to
days after Nicaragua’s second diplomatic note, the President of Costa Rica, Ms. our natural patrimony in the Biosphere Reserve of the Rio San Juan as a result of
Laura Chinchilla, declared that Costa Rica had “issued an emergency decree due the construction by Costa Rica of a 130 km long road parallel to the San Juan
75
to national necessity and it is on that basis that we have developed the projects. River.”
We are not taking even one step back.” 71 Accordingly, President Chinchilla immediate vegetation to the river flow…
declared that Costa Rica has “no reason to offer explanations to the Government interrelationship of the ecosystem and biological corridors, and has endangered
of Nicaragua.” 72 the existing fragile biodiversity.”
2.33 This policy decision was repea ted by Costa Rica’s Minister of
Foreign Affairs, Mr. Enrique Castillo, who, as noted above, stated that the Road’s
construction had not been the subject of a prior EIA because it was being carried
out pursuant to an emergency decree that “exempted” it from any such
73
requirement. Minister Castillo further stated that Costa Rica was not obligated
to give any explanation to Nicaragua, declaring that “this is a sovereign project
we are carrying out under a decree that exempts us from environmental impact
studies, that is why we owe no explanations.” 74
2.34 In view of Costa Rica’s “no explanations” policy – including its
refusal to conduct a prior EIA or otherwise consult with Nicaragua about its
71El País, Costa Rica “Chinchilla defends highway criticized by Nicaragua, rejects dialogue,”
14 December 2011 (NM, Vol. II, Annex 24).
72Ibid. 75Note sent from the Minister of Environment of Nicaragua and Natural Resources (MARENA),
73See El Nuevo Diario, Nicaragua, “Outrage Everywhere Over San Juan River Parallel Highway, to the United Nations Environmental Program (UNEP), 10 December 2011 (NM, Vol. II, Annex
No Studies Done for Costa Rican Highway,” 15 December 2011 (NM, Vol. II, Annex 25). 18).
74Ibid. 76Ibid. important adverse effects on the biological diversity
of another State. 77
being done to protected wetlands, stating that:
2.35 Nicaragua also conveyed to UNESCO its con cerns about
environmental harm, drawing particular attention to the San Juan River -
Nicaragua Biosphere Reserve , which Nicaragua noted, consists of “a system of
protected marine and terrestrial areas, biological reserves, natural reserves and a
wetland system.” 78 Nicaragua described the harm the Road was causing, noting
in particular that the San Juan River Biosphere Reserve was suffering
79
“tremendous direct and immediate environment impact.” Nicaragua further
pointed out Costa Rica’s failure to comply wi th its “obligation to carry out a
trans-boundary environmental impact assessment and to transmit this to us for
analysis and comments.” 80 Nicaragua stated:
Bearing in mind UNESCO’s objectives, we invoke
Costa Rica’s obligation to respect the Convention
concerning the protection of the World Cultural and
Natural Heritage, which establishes the obligation
“not to take any deliberate measures which might
damage directly or indirectly the cultural and
natural heritage referred to in Articles 1 and 2
situated on the territory of other Sta tes Parties to
this Convention. 81
77Ibid.
78Note sent from the Minister of Environment of Nicaragua and Natural Resources (MARENA),
to UNESCO, 10 December 2011 (NM, Vol. II, Annex 19).
79
80Ibid.
81Ibid.
Ibid.
36 important adverse effects on the biological diversity 2.36
of another State. 77
being done to protected wetlands, stating that:
2.35 Nicaragua also conveyed to UNESCO its con cerns about
environmental harm, drawing particular attention to the San Juan River -
Nicaragua Biosphere Reserve , which Nicaragua noted, consists of “a system of
protected marine and terrestrial areas, biological reserves, natural reserves and a
wetland system.” 78 Nicaragua described the harm the Road was causing, noting
in particular that the San Juan River Biosphere Reserve was suffering
79
“tremendous direct and immediate environment impact.” Nicaragua further
pointed out Costa Rica’s failure to comply wi th its “obligation to carry out a
trans-boundary environmental impact assessment and to transmit this to us for
analysis and comments.” 80 Nicaragua stated:
Bearing in mind UNESCO’s objectives, we invoke
Costa Rica’s obligation to respect the Convention
concerning the protection of the World Cultural and
Natural Heritage, which establishes the obligation
“not to take any deliberate measures which might
damage directly or indirectly the cultural and
natural heritage referred to in Articles 1 and 2
situated on the territory of other Sta tes Parties to
this Convention. 81
77Ibid.
78Note sent from the Minister of Environment of Nicaragua and Natural Resources (MARENA),
to UNESCO, 10 December 2011 (NM, Vol. II, Annex 19).
79
80Ibid.
81Ibid.
Ibid. flora and fauna, related to wetlands and the (FONARE) and the Nicaraguan Foundation for Sustaina
hydrologic system shared with our country. 82
(FUNDENIC), filed a complaint against the Government of Costa Rica before the
2.37 Nicaragua also addressed the Central American Commission on
Central American Court of Justice (“CACJ”), the judicial organ of the Central
Environment and Development, informing the organization’s Secretariat that
American Integration System (SICA).
Nicaragua’s “natural patrimony,” including the Río San Juan Biosphere Reserve:
had violated regional and international law by (i) failing to make available the
is presently threatened by the various impacts of the EIA studies that were required to be carried out under both Costa Rican and
construction project of the Government of Costa
Rica of a more than 130 kilometer road parallel to international law; and (ii) causing harm to the environment.
Río San Juan of Nicaragua. Deforestation, removal
of vegetation, sedimentation, and other factors, are
damaging these fragile nationally, regionally and
internationally protected ecosystems… injunction suspending construction until a final judgment was reached. On 12
The above mentioned is contrary to a series of
international and regional norms, includin g the 84
Constitutional Convention of the Central American
Environment and Development Commission which Salvador, Guatemala, Honduras, Nicaragua and Panama. The CACJ was created in 1961 by the
modification of the Charter of the Organization of Central American States, and later restructured
we subscribe “Conscious that regional cooperation by the Protocol of Tegucigalpa in 1991. The CACJ has jurisdiction to h
should constitute a fundamental tool … due to the member States of the Central American Integration System (“SICA”), (ii) between a member
profound interdependency between the countries of State and a non-member State which agrees to the CACJ’s jurisdiction, (iii) between States and a
the i sthmus”; it is also contrary to the Regional resident of any member State, and (iv) regardin
Convention for the management and conservation organs and member States or natural or legal persons. As of March 2011, the CACJ had
of natural forest ecosystems and forest adjudicated 69 cases and issued 41 advisory opinions at the request of Central American agencies.
See
development, the Convention for the conservation http://portal.ccj.org.ni/ccj2/Historia/tabid/57/Default.aspx (last visited 4 December 2012).
of the biodiversity and protection of the main wild 85
life sites in Central A merica, the Agreement over the Central American Agreement for Prot ection of the Environment and regulations thereof; (2)
the Agreement for the Conservation of Biodiversity and Protection of Priority Wildlife Areas in
the Pr83ected Areas between Nicaragua and Costa Central America; (3) the Regional Agreement on Climate Change; (4) the Regional Agreement on
Rica.
Trans-Boundary Movement of Hazardous Wastes, Article 3, Adoption of Preventive Measures;
and (5) the Alliance for Sustainable Development of Central America. The plaintiffs further
2.38 On 6 December 2011, two independent, non -governmental contended that Costa Rica has violated (6) the Tegucigalpa Protocol to the Charter of
Organization of the Central American States and complementary instruments or acts derived from
it, including: Article 3, subsections (b), (h), and (i); Article 4, subsection (h); Articles 5, 6, 12 and
Nicaraguan environmental organizations, the National Recycling Forum 35 of the aforesaid Protocol; and Articles 26 and 3 5 of (7) the Protocol to the General Treaty on
Central American Economic Integration, known as the Guatemala Protocol. Likewise, the
Plaintiffs alleged that Costa Rica had violated Article 14, subsection (j), of (8) the Law Regulating
the Organization and Functioning of the Councils of Ministers of Sectorial and Inter
82Note from the Minister of Environment of Nicaragua and Natural Resources (MARENA), to the Economic Integration; and (9) the Central American Social Integration Treaty, known as San
83cretary General, RAMSAR Convention, 28 November 2011 (NM, Vol. II, Annex 20). Salvador Treaty. See Central American Court of Justice, Case No. 12-06-12-2011, Decision of 21
Note from the Minister of Environment of Nicaragua to the Central American Commission on June 2012, p. 3
Environment and Development, 10 December 2011 (NM, Vol. II, Annex 21). Annex 13).
38 flora and fauna, related to wetlands and the (FONARE) and the Nicaraguan Foundation for Sustaina
hydrologic system shared with our country. 82
(FUNDENIC), filed a complaint against the Government of Costa Rica before the
2.37 Nicaragua also addressed the Central American Commission on
Central American Court of Justice (“CACJ”), the judicial organ of the Central
Environment and Development, informing the organization’s Secretariat that
American Integration System (SICA).
Nicaragua’s “natural patrimony,” including the Río San Juan Biosphere Reserve:
had violated regional and international law by (i) failing to make available the
is presently threatened by the various impacts of the EIA studies that were required to be carried out under both Costa Rican and
construction project of the Government of Costa
Rica of a more than 130 kilometer road parallel to international law; and (ii) causing harm to the environment.
Río San Juan of Nicaragua. Deforestation, removal
of vegetation, sedimentation, and other factors, are
2.39
damaging these fragile nationally, regionally and
internationally protected ecosystems… injunction suspending construction until a final judgment was reached. On 12
The above mentioned is contrary to a series of
international and regional norms, includin g the 84
Constitutional Convention of the Central American The Member States of the Central American Integration System are
Environment and Development Commission which Salvador, Guatemala, Honduras, Nicaragua and Panama. The CACJ was created in 1961 by the
modification of the Charter of the Organization of Central American States, and later restructured
we subscribe “Conscious that regional cooperation by the Protocol of Tegucigalpa in 1991. The CACJ has jurisdiction to h
should constitute a fundamental tool … due to the member States of the Central American Integration System (“SICA”), (ii) between a member
profound interdependency between the countries of State and a non-member State which agrees to the CACJ’s jurisdiction, (iii) between States and a
the i sthmus”; it is also contrary to the Regional resident of any member State, and (iv) regardin
Convention for the management and conservation organs and member States or natural or legal persons. As of March 2011, the CACJ had
of natural forest ecosystems and forest adjudicated 69 cases and issued 41 advisory opinions at the request of Central American agencies.
See
development, the Convention for the conservation http://portal.ccj.org.ni/ccj2/Historia/tabid/57/Default.aspx (last visited 4 December 2012).
of the biodiversity and protection of the main wild 85 In particular, the plaintiffs alleged that Costa Rica had violated its legal obligations under:
life sites in Central A merica, the Agreement over the Central American Agreement for Prot ection of the Environment and regulations thereof; (2)
the Agreement for the Conservation of Biodiversity and Protection of Priority Wildlife Areas in
the P83tected Areas between Nicaragua and Costa Central America; (3) the Regional Agreement on Climate Change; (4) the Regional Agreement on
Rica.
Trans-Boundary Movement of Hazardous Wastes, Article 3, Adoption of Preventive Measures;
and (5) the Alliance for Sustainable Development of Central America. The plaintiffs further
2.38 On 6 December 2011, two independent, non -governmental contended that Costa Rica has violated (6) the Tegucigalpa Protocol to the Charter of
Organization of the Central American States and complementary instruments or acts derived from
it, including: Article 3, subsections (b), (h), and (i); Article 4, subsection (h); Articles 5, 6, 12 and
Nicaraguan environmental organizations, the National Recycling Forum 35 of the aforesaid Protocol; and Articles 26 and 3 5 of (7) the Protocol to the General Treaty on
Central American Economic Integration, known as the Guatemala Protocol. Likewise, the
Plaintiffs alleged that Costa Rica had violated Article 14, subsection (j), of (8) the Law Regulating
the Organization and Functioning of the Councils of Ministers of Sectorial and Inter
82Note from the Minister of Environment of Nicaragua and Natural Resources (MARENA), to the Economic Integration; and (9) the Central American Social Integration Treaty, known as San
83cretary General, RAMSAR Convention, 28 November 2011 (NM, Vol. II, Annex 20). Salvador Treaty. See Central American Court of Justice, Case No. 12-06-12-2011, Decision of 21
Note from the Minister of Environment of Nicaragua to the Central American Commission on June 2012, p. 3
Environment and Development, 10 December 2011 (NM, Vol. II, Annex 21). Annex 13). January 2012, the Court carried out an in situ inspection of the Road and its
environmental effects. Five days later, on 17 January 2012, the Court out “ environmental impact and mitigation studies…which are essential for
unanimously ordered Costa Rica to “immediately suspe nd the construction of the commencing works of this magnitude,”
road…so that the situation does not escalate, thus protecting the rights of each of question without conducting the studies and previous anal
the parties and preventing the occurrence of irreversible and irreparable context of the obligations imposed by Regional Community and International
86
damage.” Law.”
2.40 Costa Rica ignored the Order of 17 January 2012. Construction of “consider the relevant precautionary measures before making decisions that could
the Road continued, 87 prompting the Central American Parliament to adopt a have a
resolution urging Costa Rica to respect the CACJ’s provisional measures Order environment they regulate,”
and expressing concern about the “serious damage” that “t housands of metric mutual understanding and communication between the State Parties of all these
tons of mud and construction materials” were causing to the San Juan River. 88 conventions,” an obligation the Court f ound that Costa Rica had “ignor[ed].”
Costa Rica disregarded the Central American Parliament’s resolution as well. The CACJ further held that Costa Rica had “
2.41 After reviewing the evidence presented by the plaintiffs, both in unilateral, inappropriate and hasty manner,
written pleadings and during an evidentiary hearing (which Costa Rica refused to international bilateral and multilateral agreements by building the
attend), the CACJ issued a unanimous Judgment on 21 June 2012, holding Costa question, which cannot be obviated by alleging internal provisions,”
Rica liable for breaching its obligations with respect to EIA and for causing Rica’s self-serving “Emergency Decree.”
environmental harm.
obligation to “communicate to the Government of Nicaragua the chara cteristics,
86Ibid., p. 15 (Whereas IX).
87Ibid., p. 16 (Whereas IX).
88 89
La Prensa, Nicaragua “San Jose should respect the river,” 28 February 2012 (NM, Vol. II, 90
Annex 30); see also El Nuevo Diario , Nicaragua “Central American Parliament supports CIJ 91
decision on environmental damage by Costa Rica” 27 February 2012 (NM, Vol. II, Annex 28) ; La 92
Prensa, Nicaragua “Central American Parliament urges Costa Rica to respect environmental
security in the San Juan River,” 27 February 2012 (NM, Vol. II, Annex 29). 93
40January 2012, the Court carried out an in situ inspection of the Road and its 2.42
environmental effects. Five days later, on 17 January 2012, the Court out “ environmental impact and mitigation studies…which are essential for
unanimously ordered Costa Rica to “immediately suspe nd the construction of the commencing works of this magnitude,”
road…so that the situation does not escalate, thus protecting the rights of each of question without conducting the studies and previous anal
the parties and preventing the occurrence of irreversible and irreparable context of the obligations imposed by Regional Community and International
86 90
damage.” Law.”
2.40 Costa Rica ignored the Order of 17 January 2012. Construction of “consider the relevant precautionary measures before making decisions that could
the Road continued, 87 prompting the Central American Parliament to adopt a have a
resolution urging Costa Rica to respect the CACJ’s provisional measures Order environment they regulate,”
and expressing concern about the “serious damage” that “t housands of metric mutual understanding and communication between the State Parties of all these
tons of mud and construction materials” were causing to the San Juan River. 88 conventions,” an obligation the Court f ound that Costa Rica had “ignor[ed].”
Costa Rica disregarded the Central American Parliament’s resolution as well. The CACJ further held that Costa Rica had “
2.41 After reviewing the evidence presented by the plaintiffs, both in unilateral, inappropriate and hasty manner,
written pleadings and during an evidentiary hearing (which Costa Rica refused to international bilateral and multilateral agreements by building the
attend), the CACJ issued a unanimous Judgment on 21 June 2012, holding Costa question, which cannot be obviated by alleging internal provisions,”
Rica liable for breaching its obligations with respect to EIA and for causing Rica’s self-serving “Emergency Decree.”
environmental harm. 2.43
obligation to “communicate to the Government of Nicaragua the chara cteristics,
86Ibid., p. 15 (Whereas IX).
87Ibid., p. 16 (Whereas IX).
88 89
La Prensa, Nicaragua “San Jose should respect the river,” 28 February 2012 (NM, Vol. II, 90C.A.C.J Judgment, 21 June 2012, p. 25 (Whereas XXVI) (NM, Vol. II, Annex 13).
Annex 30); see also El Nuevo Diario , Nicaragua “Central American Parliament supports CIJ 91Ibid., p. 26 (Dispositif).
decision on environmental damage by Costa Rica” 27 February 2012 (NM, Vol. II, Annex 28) ; La 92Ibid., pp. 18-24 (Whereas XIV-XXV).
Prensa, Nicaragua “Central American Parliament urges Costa Rica to respect environmental Ibid., p. 26 (Dispositif).
security in the San Juan River,” 27 February 2012 (NM, Vol. II, Annex 29). 93Ibid. effects and environmental impact study of the construction of the road by virtue
of its international and community commitments imposed by treaties, of the inspected area, the distance between the riverbed and the road is a few
conventions, agreements and legislative acts derived from the Tegucigalpa meters and the difference of level between the two is very pronounced, with the
Protocol in the field of environment protection.” 94 Further, the CACJ found that, road in a dominant position and the river in a secondary position, all of which
because the San Juan River is designated a Nicaragua River Biosphere Reserve makes possible a landslide of large segments of the work in question, with the
belonging to the World Biosphere Reserve Network, Costa Rica had failed to resulting sedimentation that would pollute the river.”
meet its obligation to refrain from adoptin g unilateral measures contrary to the Chapter 3 of this Memorial, this is exactly what has happened, and continues to
common purpose created under the International System of Protected Areas for happen.
95
Peace.
2.44 Based on its review of the evidence, including its own in situ and related damages [caused] to the San Juan de Nicaragua River,” as well as for
observations, which “verif[ied] the damage to the bank that protects the river on its refusal to comply with the preliminary Or der of 17 January 2012 requiring the
the south bank, especially in the many sectors where the road is dangerously close suspension of Road construction activities.
to the edge of the River,” 96 the CACJ held, unanimously, that:
The State of Costa Rica built a high-risk and Costa Rica publically rejected the Judgment on the merits; and the construction of
environmentally hazardous work, which it should the Road continued. The da mage to Nicaragua that Costa Rica has caused, and
have prevented within the framework of the
community obligations because it exposes the
common watershed and ecosystem shared with continues to cause, is the subject of the following Chapter of this Memorial.
Nicaragua and the region to serious and
unpredictable damage, which this Court was able to
observe during its on -site inspection in the area in
97
question.
94Ibid., p. 25 (Whereas XXVI).
95Ibid., p. 18 (Whereas XIII).
96Ibid., p. 25 (Whereas XXVI). 98
97Ibid., p. 26 (Dispositif). 99
42effects and environmental impact study of the construction of the road by virtue 2.45
of its international and community commitments imposed by treaties, of the inspected area, the distance between the riverbed and the road is a few
conventions, agreements and legislative acts derived from the Tegucigalpa meters and the difference of level between the two is very pronounced, with the
Protocol in the field of environment protection.” 94 Further, the CACJ found that, road in a dominant position and the river in a secondary position, all of which
because the San Juan River is designated a Nicaragua River Biosphere Reserve makes possible a landslide of large segments of the work in question, with the
belonging to the World Biosphere Reserve Network, Costa Rica had failed to resulting sedimentation that would pollute the river.”
meet its obligation to refrain from adoptin g unilateral measures contrary to the Chapter 3 of this Memorial, this is exactly what has happened, and continues to
common purpose created under the International System of Protected Areas for happen.
95
Peace. 2.46
2.44 Based on its review of the evidence, including its own in situ and related damages [caused] to the San Juan de Nicaragua River,” as well as for
observations, which “verif[ied] the damage to the bank that protects the river on its refusal to comply with the preliminary Or der of 17 January 2012 requiring the
the south bank, especially in the many sectors where the road is dangerously close suspension of Road construction activities.
to the edge of the River,” 96 the CACJ held, unanimously, that: 2.47
The State of Costa Rica built a high-risk and Costa Rica publically rejected the Judgment on the merits; and the construction of
environmentally hazardous work, which it should the Road continued. The da mage to Nicaragua that Costa Rica has caused, and
have prevented within the framework of the
community obligations because it exposes the
common watershed and ecosystem shared with continues to cause, is the subject of the following Chapter of this Memorial.
Nicaragua and the region to serious and
unpredictable damage, which this Court was able to
observe during its on -site inspection in the area in
97
question.
94Ibid., p. 25 (Whereas XXVI).
95Ibid., p. 18 (Whereas XIII).
96Ibid., p. 25 (Whereas XXVI). 98Ibid., p. 25 (Whereas XXVI).
97Ibid., p. 26 (Dispositif). 99Ibid., p. 27 (Dispositif). HARM CAUSED TO NICARAGUA BY COSTA RICA’SROAD
precipitous construction of its R oad along the environmentally sensitive right
bank of the San Juan River was done pursuant to a self
that attempted to avoid the obligation to conduct a prior Environmental Impact
Assessment, as well as the need to prepare basic engineering and construction
plans. In this Chapter, Nicaragua describes the risks and actual harm to the San
Juan River resulting from Costa Rica’s unlawful and irresponsible road
construction activities.
and authorized the construction of the R oad, and carried out the construction
itself, made harm to the River inevitable . T he project involved more than 900
pieces of machinery operated by at least 35 different construction companies,
entailed the deforestation and denudation of a huge swath of land extending for
more than 100 kilometers directly adjacent to the River. It involved the dumping
100
oversight”, 11 June 2012 (Annex 111 to the Counter Memorial of Nicaragua (NCM) in the
Dispute Concerning Certain Activities Carried out by Nicaragua in the Border Area
v. Nicaragua); see also La Nación, Costa Rica, E. Oviedo, “ Conavi built a dirt road along the
border without a single design plan,” 23 May 2012 (NM, Vol. II, Annex 31).
44 CHAPTER 3
HARM CAUSED TO NICARAGUA BY COSTA RICA’SROAD
CONSTRUCTION
A . INTRODUCTION
3.1 In the previous Chapter, Nicaragua showed how Costa Rica’s
precipitous construction of its R oad along the environmentally sensitive right
bank of the San Juan River was done pursuant to a self -declared “emergency”
that attempted to avoid the obligation to conduct a prior Environmental Impact
Assessment, as well as the need to prepare basic engineering and construction
plans. In this Chapter, Nicaragua describes the risks and actual harm to the San
Juan River resulting from Costa Rica’s unlawful and irresponsible road
construction activities.
3.2 As shown below, the manner in which Costa Rica hastily approved
and authorized the construction of the R oad, and carried out the construction
itself, made harm to the River inevitable . T he project involved more than 900
100
pieces of machinery operated by at least 35 different construction companies,
entailed the deforestation and denudation of a huge swath of land extending for
more than 100 kilometers directly adjacent to the River. It involved the dumping
100Crhoy.com, Costa Rica “Path construction supervisors informed problems and the lack of
oversight”, 11 June 2012 (Annex 111 to the Counter Memorial of Nicaragua (NCM) in the
Dispute Concerning Certain Activities Carried out by Nicaragua in the (Costa Rica
v. Nicaragua); see also La Nación, Costa Rica, E. Oviedo, “ Conavi built a dirt road along the
border without a single design plan,” 23 May 2012 (NM, Vol. II, Annex 31).
45 into the River of enormous volumes of sediments and other debris – soil, area, including the River and its tributaries . The Chapter will then demonstrate
uprooted vegetation, and felled trees – during the clearing and leveling of land for (C) that Nicaragua has suffered, and will continue to suffer, significant harm as a
the Road’s bed. 101 Further compounding the damage, Costa Rica constructed the result of these irresponsible actions.
Road in a haphazard a nd irresponsible manner, failing to adhere to established
engineering practices or to take necessary precautions to protect vulnerable
watercourses and wetlands. The inexorable result has been erosion and sediment-
laden runoff, with the consequence that t he San Juan River has been , and still is
engineering studies and designs are normally prepared before road construction
being, heavily polluted by sediments and debris from the Costa Rican side. This
commences, and particular care is taken when planning infrastructure projects in
will continue unabated unless and until Costa Rica is ordered by the Court to
environmentally sensitive areas. This is a matter of common sense, as well as
undertake necessary remediation measures.
legal obligation. It does not take a Nobel laureate to appreciate that carrying out a
3.3 More specifically, this Chapter will demonstrate ( B) that Costa
major construction project in an area as ecologically vulnerable as the San Juan
Rica ignored basic engineering principles in constructing its Road , effectively River Basin without degrading the environment requires meticulous advance
ensuring harm to the San Juan River by, inter alia : (1) extensive deforestation
planning, and strict adherence to carefully-developed engineering designs. Yet,
adjacent to the River and the transfer of newl y exposed and unstable soils into it;
Costa Rica ignored (or chose not to think about) impacts on the environment,
(2) massive earthmoving activities and other topographical alterations in unstable including the San Juan River, and rushed ahead with the construction of its Road
locations inappropriately close to the River , effectively assuring that huge
before necessary engineering studies and designs were prepared.
volumes of sediment are transferred into the River; (3) leaving large, steep and
conclusion of Costa Rica’s national
unprotected piles of earth exposed to rainfall, resulting in further sedimentation of architects, which is responsible for regulating the country’s architects and
the River; and (4) failing to construct or install proper drainage systems and
engineers, the Colegio Federado de Ingenieros y de Arquitectos de Costa Rica, or
stream crossings to prevent erosion and pollution of watercourses in the project
10Application Instituting Proceedings, 21 December 2011, Construction of a Road in Costa Rica
along the San Juan River (Nicaragua v. Costa Rica) , para. 6.
46into the River of enormous volumes of sediments and other debris – soil, area, including the River and its tributaries . The Chapter will then demonstrate
uprooted vegetation, and felled trees – during the clearing and leveling of land for (C) that Nicaragua has suffered, and will continue to suffer, significant harm as a
the Road’s bed. 101 Further compounding the damage, Costa Rica constructed the result of these irresponsible actions.
Road in a haphazard a nd irresponsible manner, failing to adhere to established B .
engineering practices or to take necessary precautions to protect vulnerable
watercourses and wetlands. The inexorable result has been erosion and sediment-
3.4
laden runoff, with the consequence that t he San Juan River has been , and still is
engineering studies and designs are normally prepared before road construction
being, heavily polluted by sediments and debris from the Costa Rican side. This
commences, and particular care is taken when planning infrastructure projects in
will continue unabated unless and until Costa Rica is ordered by the Court to
environmentally sensitive areas. This is a matter of common sense, as well as
undertake necessary remediation measures.
legal obligation. It does not take a Nobel laureate to appreciate that carrying out a
3.3 More specifically, this Chapter will demonstrate ( B) that Costa
major construction project in an area as ecologically vulnerable as the San Juan
Rica ignored basic engineering principles in constructing its Road , effectively River Basin without degrading the environment requires meticulous advance
ensuring harm to the San Juan River by, inter alia : (1) extensive deforestation
planning, and strict adherence to carefully-developed engineering designs. Yet,
adjacent to the River and the transfer of newl y exposed and unstable soils into it;
Costa Rica ignored (or chose not to think about) impacts on the environment,
(2) massive earthmoving activities and other topographical alterations in unstable including the San Juan River, and rushed ahead with the construction of its Road
locations inappropriately close to the River , effectively assuring that huge
before necessary engineering studies and designs were prepared.
volumes of sediment are transferred into the River; (3) leaving large, steep and
conclusion of Costa Rica’s national
unprotected piles of earth exposed to rainfall, resulting in further sedimentation of architects, which is responsible for regulating the country’s architects and
the River; and (4) failing to construct or install proper drainage systems and
engineers, the Colegio Federado de Ingenieros y de Arquitectos de Costa Rica, or
stream crossings to prevent erosion and pollution of watercourses in the project
101Application Instituting Proceedings, 21 December 2011, Construction of a Road in Costa Rica
along the San Juan River (Nicaragua v. Costa Rica) , para. 6. “CFIA,” 102 as expressed in a June 2012 report. According to CFIA, no conclusion in a report published in May 2012, which criticized Costa Rica’s lack
engineering plans or preliminary studies were prepared to guide Costa Rica’s of planning and negligent execution of the Road project. The LANAMME report
103
road construction efforts, and the project was not even registered with CFIA. concluded that the road construction project was carried out “ without any basic
Rather, Costa Rica undertook the project “ without a single plan to indicate the geometric design” or proper coordi nation and controls, and that “
path that was to be opened, or what its characteristics should have been.” 104 technical criteria were set in
CFIA’s report concludes that constructing a road in this manner inevitably LANAMME found that “the project failed to follow basic engineering practices
“causes increased costs, environmental problems, and a rapid deter ioration of the during planning and implementation, such as: land survey for road layout; critical
project.” 105 point geotechnical assessment; drainage structure location, design, and
3.5 Independently, the National Laboratory of the University of Costa construction; defining suitable and uniform technical standards; [and] inspection
Rica (sometimes referred to as “LANAMME ,” its Spanish acronym) , Costa deficiency.”
106
Rica’s leading independent authority on road construction, reached the same
from the United States, led by Dr. G. Mathi
102
The CFIA is responsible for reviewing and approving construction projects in Costa Rica Environmental Planning
before they receive the required building permits. It is comprised of the College of Architects of
Costa Rica (Colegio de Arquitectos de Costa Rica), the College of Civil Engineers of Costa Rica
(Colegio de Ingenieros Civiles de Costa Rica), the College of Electrical Engineers Colegio de confirmed these conclusions, following their personal inspection of the San Juan
Ingenieros Electricistas ), the Mechanics and Industrialists of Costa Rica ( Mecánicos e
Industriales de Costa Rica (CIEMI)), the College of Topographical Engineers of Costa Rica River in October 2012. According to Dr. Kondolf, there are established
(Colegio de Ingenieros Topógrafos de Costa Rica), and the College of Technological Engineers of
103ta Rica (Colegio de Ingenieros Tecnólogos de Costa Rica). “[p]rotective road design and construction standards
CFIA Report, p. 2, para. 1.3 & p. 25, para. 5.2 (NM, Vol. II, Annex 4) All construction
projects in Costa Rica must be registered with the CFIA’s Registry of Professional Responsibility,
under article 54 of the Organic Law of the CFIA, including public works carried out by the State. Practices (BMPs) for new and reconstructed roads
104CFIA Report, p. 25, para. 5.3; see also p. 27, para. 6.3 of same document (recommending the
post-hoc preparation of “[a] detailed topographical blueprint of all work done to the present” and
the “[d]evelopment of all pertinent designs and construction blueprin ts for the whole of the
project.”) (NM, Vol. II, Annex 4).
105
CFIA Report, p. 25, para. 5.3. (NM, Vol. II, Annex 4) See also La Nación, Costa Rica, E.
Rivera, E. Oviedo & R. Rojas, “Serious errors expose trail to risk of collapse during the rainy
season,” 28 May 2012 (highlighting a lack of geotechnical or topographical information) (NM,
Vol. II, Annex 35).
106Since 2002, LANAMME has been responsible for monitoring Costa Rica’s public spending on the official standards for projects carried out by the Costa Rican Ministry of Public Works and
road infr astructure.Its role evaluating road projects includes inspection, technical assistance, Transportation.
investigation and capacity building. LANAMME prepared Costa Rica’s Manual on the General 107
108
Specifications for the Construction of Highways, Roads and Bridges CR -2010, which established
48“CFIA,” 102 as expressed in a June 2012 report. According to CFIA, no conclusion in a report published in May 2012, which criticized Costa Rica’s lack
engineering plans or preliminary studies were prepared to guide Costa Rica’s of planning and negligent execution of the Road project. The LANAMME report
103
road construction efforts, and the project was not even registered with CFIA. concluded that the road construction project was carried out “ without any basic
Rather, Costa Rica undertook the project “ without a single plan to indicate the geometric design” or proper coordi nation and controls, and that “
path that was to be opened, or what its characteristics should have been.” 104 technical criteria were set in
CFIA’s report concludes that constructing a road in this manner inevitably LANAMME found that “the project failed to follow basic engineering practices
“causes increased costs, environmental problems, and a rapid deter ioration of the during planning and implementation, such as: land survey for road layout; critical
project.” 105 point geotechnical assessment; drainage structure location, design, and
3.5 Independently, the National Laboratory of the University of Costa construction; defining suitable and uniform technical standards; [and] inspection
Rica (sometimes referred to as “LANAMME ,” its Spanish acronym) , Costa deficiency.”
106
Rica’s leading independent authority on road construction, reached the same 3.6
from the United States, led by Dr. G. Mathi
102
The CFIA is responsible for reviewing and approving construction projects in Costa Rica Environmental Planning
before they receive the required building permits. It is comprised of the College of Architects of
Costa Rica (Colegio de Arquitectos de Costa Rica), the College of Civil Engineers of Costa Rica
(Colegio de Ingenieros Civiles de Costa Rica), the College of Electrical Engineers Colegio de confirmed these conclusions, following their personal inspection of the San Juan
Ingenieros Electricistas ), the Mechanics and Industrialists of Costa Rica ( Mecánicos e
Industriales de Costa Rica (CIEMI)), the College of Topographical Engineers of Costa Rica River in October 2012. According to Dr. Kondolf, there are established
(Colegio de Ingenieros Topógrafos de Costa Rica), and the College of Technological Engineers of
103ta Rica (Colegio de Ingenieros Tecnólogos de Costa Rica). “[p]rotective road design and construction standards
CFIA Report, p. 2, para. 1.3 & p. 25, para. 5.2 (NM, Vol. II, Annex 4) All construction
projects in Costa Rica must be registered with the CFIA’s Registry of Professional Responsibility,
under article 54 of the Organic Law of the CFIA, including public works carried out by the State. Practices (BMPs) for new and reconstructed roads
104CFIA Report, p. 25, para. 5.3; see also p. 27, para. 6.3 of same document (recommending the
post-hoc preparation of “[a] detailed topographical blueprint of all work done to the present” and
the “[d]evelopment of all pertinent designs and construction blueprin ts for the whole of the
project.”) (NM, Vol. II, Annex 4).
105
CFIA Report, p. 25, para. 5.3. (NM, Vol. II, Annex 4) See also La Nación, Costa Rica, E.
Rivera, E. Oviedo & R. Rojas, “Serious errors expose trail to risk of collapse during the rainy
season,” 28 May 2012 (highlighting a lack of geotechnical or topographical information) (NM,
Vol. II, Annex 35).
106Since 2002, LANAMME has been responsible for monitoring Costa Rica’s public spending on the official standards for projects carried out by the Costa Rican Ministry of Public Works and
road infr astructure.Its role evaluating road projects includes inspection, technical assistance, Transportation.
investigation and capacity building. LANAMME prepared Costa Rica’s Manual on the General 107LANAMME Report, pp. 50-51 (NM, Vol. II, Annex 3).
108
Specifications for the Construction of Highways, Roads and Bridges CR -2010, which established Ibid., p. 50 employed in the construction work that has occurred to date.” 109 However, “[i]t is
110
clear that most of these measures were not followed ”. In particular , Dr.
Kondolf and his team found that Costa Rica’s “road works suffer from a
deforested areas are less stable and wash away during the rainy season.
significant lack of physical and environmental planning and protection, and failed
deforested areas are adjacent to rivers and other wetlands, the soils wash into
to follow international and Costa Rican river, stream and wetland setback and
them, increasing their sediment loads, adversely affecting water quality and
111
protection standar ds.” Costa Rica’s failure to abide by these and other
aquatic life, and sometimes impeding navigation as well. For these and other
“international road practices intended to minimize on -site and off-site impacts to
reasons,
water quality, channel morphology, navigation and riverine ecology, as well as
undisturbed forest will have a high potential for environmental impact, and
national and international physical and biological resources” has led to “major
should be subject to careful, sci
deficiencies…related to the design, location, construction, winterization erosion
assessment.”
control and subsequent maintenance along Route 1856.” 112 These deficiencies
have, in turn, resulted in the deterioration of the Road i tself and adverse impacts
deforested large swaths of territory adjacent to the San Juan River in the course of
on neighboring watercourses, including the San Juan River. 113
constructing its Road . Costa Rica’s Federated Association of Engineers and
3.7 In short, Costa Rica’s construction of its Road without adherence
Architects has reported that “deforestation and impact on the zone’s wetlands are
to basic engineering practices has resulted in a road that is deeply flawed, and
evident”
whose technical deficiencies pose major risks to the surrounding environment,
proximity to the River , requiring “[a]n evaluation for possible environmental
including the San Juan River, as described below.
114
109 G. Mathias Kondolf, Danny Hagans, Bill Weaver and Eileen Weppner, “Environmen tal 115
Impacts of Juan Rafael Mora Porras Route 1856, Costa Rica, on the Río San Juan, Nicaragua,” 116
December 2012 (hereinafter “Kondolf Report”), Section 5.6 (NM, Vol. II, Annex 1). carbon sequestration, and other ecological values, especially in the humid tropics, where cutting
11Ibid., Section 5.6. of forest is acknowledged to be a principal contributor to green house gas emissions,” and a danger
11Ibid., Section 6. to plant and animal diversity. Ibid., Section 3.3.
112Appendix B, p. 1. The report also notes the “ poor road location and design standards in such 117
118
113se proximity to the Rio San Juan”. Ibid., at Section 1.
See Ibid., e.g., Section 6. (NM, Vol. II, Annex 4).
50employed in the construction work that has occurred to date.” 109 However, “[i]t is
110
clear that most of these measures were not followed ”. In particular , Dr.
3.8
Kondolf and his team found that Costa Rica’s “road works suffer from a
deforested areas are less stable and wash away during the rainy season.
significant lack of physical and environmental planning and protection, and failed
deforested areas are adjacent to rivers and other wetlands, the soils wash into
to follow international and Costa Rican river, stream and wetland setback and
them, increasing their sediment loads, adversely affecting water quality and
111
protection standar ds.” Costa Rica’s failure to abide by these and other
aquatic life, and sometimes impeding navigation as well. For these and other
“international road practices intended to minimize on -site and off-site impacts to
116
reasons,
water quality, channel morphology, navigation and riverine ecology, as well as
undisturbed forest will have a high potential for environmental impact, and
national and international physical and biological resources” has led to “major
should be subject to careful, sci
deficiencies…related to the design, location, construction, winterization erosion
assessment.”
control and subsequent maintenance along Route 1856.” 112 These deficiencies
3.9
have, in turn, resulted in the deterioration of the Road i tself and adverse impacts
deforested large swaths of territory adjacent to the San Juan River in the course of
on neighboring watercourses, including the San Juan River. 113
constructing its Road . Costa Rica’s Federated Association of Engineers and
3.7 In short, Costa Rica’s construction of its Road without adherence
Architects has reported that “deforestation and impact on the zone’s wetlands are
to basic engineering practices has resulted in a road that is deeply flawed, and
evident”
whose technical deficiencies pose major risks to the surrounding environment,
proximity to the River , requiring “[a]n evaluation for possible environmental
including the San Juan River, as described below.
114
109 G. Mathias Kondolf, Danny Hagans, Bill Weaver and Eileen Weppner, “Environmen tal 115Ibid.,Section 3.3.
Ibid.,Section 3.3.
Impacts of Juan Rafael Mora Porras Route 1856, Costa Rica, on the Río San Juan, Nicaragua,” 116As Dr. Kondolf explained, “[d]eforestation results in loss of important ecological habitats,
December 2012 (hereinafter “Kondolf Report”), Section 5.6 (NM, Vol. II, Annex 1). carbon sequestration, and other ecological values, especially in the humid tropics, where cutting
110Ibid., Section 5.6. of forest is acknowledged to be a principal contributor to green house gas emissions,” and a danger
111Ibid., Section 6. to plant and animal diversity. Ibid., Section 3.3.
112Appendix B, p. 1. The report also notes the “ poor road location and design standards in such 117Kondolf Report, Section 3.3. (NM, Vol. II, Annex 1).
118
113se proximity to the Rio San Juan”. Ibid., at Section 1. CFIA Report, p. 11; see also pp. 17, 18, 19 (“impact on the forest is noticeable”), 21, 22 & 26.
See Ibid., e.g., Section 6. (NM, Vol. II, Annex 4). 119
damage.” Likewise, Costa Rica’s Administrative Environmental Court found, acronym) and the Nicaraguan
in an inspection report released in July 2012, that the road construction involved (FUNDENIC), provide additional examples of the forest destruction caused
“excessive and unjustified felling [of forests.] ” Indeed, the Administrative Costa Rica duri ng its construction of the Road, and the proximity of
Environmental Court observed that, in some places, Costa Rica clear-cut a swath activities to the San Juan River, which is visible in the bottom portion of both
120
of forest eight times larger than was appropriate. In an article entitled images:
“Environmental Court Confirmed Excessive Felling for Construction of 1856
Trail,” the Costa Rican newspaper El País illustrated the environmental damage
in the following photograph:
Central American Court of Justice to make the factual determination that
felling of a large number of trees in Costa Rican territory
where only reddish and clayish soil remains.”
121
3.10 The following two photographs, which were presented to the this case, and after much of the Road had already been constructed, various Costa
Central American Court of Justice in early 2012 by two environmental NGOs
122
from Nicaragua, the National Recycling Forum (“FONARE” per its Spanish and FONARE in “ Ruta de la Caretera,” 25 March 2012, image of site 25, available at
http://lagosdenicaragua.org/index.php?option=com_jdownloads&Itemid=64&v…
&catid=3&m=0 (last visited 27 November 2012).
123
119Ibid., p. 26, para. 5.9. ( NM, Vol. II, Annex 4). and FONARE in “
120
El País, Costa Rica “Environmental Court Confirmed Excessive Felling for Construction of http://lagosdenicaragua.org/index.php?option=com_content&vi ew=article&id=134&Itemid=63
1216 Trail,” 15 July 2012 ( NM, Vol. II, Annex 37). 124st visited 27 November 2012)
Ibid.
52 119
damage.” Likewise, Costa Rica’s Administrative Environmental Court found, acronym) and the Nicaraguan
in an inspection report released in July 2012, that the road construction involved (FUNDENIC), provide additional examples of the forest destruction caused
“excessive and unjustified felling [of forests.] ” Indeed, the Administrative Costa Rica duri ng its construction of the Road, and the proximity of
Environmental Court observed that, in some places, Costa Rica clear-cut a swath activities to the San Juan River, which is visible in the bottom portion of both
120
of forest eight times larger than was appropriate. In an article entitled images:
“Environmental Court Confirmed Excessive Felling for Construction of 1856
Trail,” the Costa Rican newspaper El País illustrated the environmental damage
in the following photograph:
122
3.11
Central American Court of Justice to make the factual determination that
felling of a large number of trees in Costa Rican territory
where only reddish and clayish soil remains.”
3.12
121
3.10 The following two photographs, which were presented to the this case, and after much of the Road had already been constructed, various Costa
Central American Court of Justice in early 2012 by two environmental NGOs
122Presented to the Central American Court of Justice by FUNDENIC -SOS/FONDO NATURA
from Nicaragua, the National Recycling Forum (“FONARE” per its Spanish and FONARE in “ Ruta de la Caretera,” 25 March 2012, image of site 25, available at
http://lagosdenicaragua.org/index.php?option=com_jdownloads&Itemid=64&v…
&catid=3&m=0 (last visited 27 November 2012).
123Presented to the Central American Court of Justice by FUNDENIC -SOS/FONDO NATURA
119Ibid., p. 26, para. 5.9. ( NM, Vol. II, Annex 4). and FONARE in “
120
El País, Costa Rica “Environmental Court Confirmed Excessive Felling for Construction of http://lagosdenicaragua.org/index.php?option=com_content&vi ew=article&id=134&Itemid=63
1216 Trail,” 15 July 2012 ( NM, Vol. II, Annex 37). 124st visited 27 November 2012)
Ibid. C.A.C.J Judgment, 21 June 2012, p. 20 (NM, Vol. II, Annex 13). Rican ministries belatedly and hurriedly prepared an “Environmental
Management Plan”. The document’s main purpose appears to have been to out the meager remedial measures that its own inadequate and after-the-fact plan
defend the road construction project in the face of Nicaragua’s claims . concludes are necessary. When Dr. Kondolf and his team visited the San Juan
Nevertheless, even this blatantly self -serving Costa Rican document concedes River in October 2012, many deforested areas adjacent to the River were still
that there has been “[t]ree removal in some sectors covered by primary an d readily visible, including those pictured in the following photographs from Dr.
disturbed primary forest, and partial fragmentation of tropical wet and moist Kondolf’s report:
125
tropical forest” – that is, in plainer language, that there have been “sites where
the forest was eliminated and fragmented” 126– including in areas where “the road
127
runs paralle l to the San Juan River.” In recognition of the harms such
deforestation causes, the belated Costa Rican study recommends that “[a]
recovery plan should be established for the affected wetlands” 128 and that
“[p]lantations with native local species should b e established to protect river and
brook banks, particularly in areas without any forest cover, on the entire land strip
129
between the road and the San Juan River.”
125
Costa Rican Ministry of Environment, Energy and Telecommunications, National
Conservation Area System, Ministry of Public Works and Transportation, National Road Council,
and National Risk Prevention and Emergency Response Commission, “Environmental
Management Plan: Juan Rafael Mora Porras Road,” April 2012 (hereinafter “Costa Rican
Environmental Management Plan”), pp. 9-10; see also Annex 3 of same document (NM, Vol. II,
Annex 2).
126Ibid., Annex 3. LANAMME and CFIA, together with his own reconnaissance in situ in October
127 Costa Rican Environmental Management Plan, pp. 9 -10. In particular, it reports “[f]orest
disturbance along an approximate 75 -meter road stretch,” with “[a]lterations spread[ing] some 15 2012, “revealed a near complete lack of secondary, post -construction erosion
meters on both sides of the road at the ends of the stretch” in one section of the road, and that
“[a]pproximately a 3 -km long road section was found with trees removed” in another section. control measures at the many areas of exposed, bare soil created by the road
128d., p. 10.
Ibid., Annex 3.
129Ibid., p. 19. related construction and quarrying. This serious omission has resulted in
54Rican ministries belatedly and hurriedly prepared an “Environmental 3.13
Management Plan”. The document’s main purpose appears to have been to out the meager remedial measures that its own inadequate and after-the-fact plan
defend the road construction project in the face of Nicaragua’s claims . concludes are necessary. When Dr. Kondolf and his team visited the San Juan
Nevertheless, even this blatantly self -serving Costa Rican document concedes River in October 2012, many deforested areas adjacent to the River were still
that there has been “[t]ree removal in some sectors covered by primary an d readily visible, including those pictured in the following photographs from Dr.
disturbed primary forest, and partial fragmentation of tropical wet and moist Kondolf’s report:
125
tropical forest” – that is, in plainer language, that there have been “sites where
the forest was eliminated and fragmented” 126 – including in areas where “the road
127
runs paralle l to the San Juan River.” In recognition of the harms such
deforestation causes, the belated Costa Rican study recommends that “[a]
recovery plan should be established for the affected wetlands” 128 and that
“[p]lantations with native local species should b e established to protect river and
brook banks, particularly in areas without any forest cover, on the entire land strip
129
between the road and the San Juan River.”
125
Costa Rican Ministry of Environment, Energy and Telecommunications, National
Conservation Area System, Ministry of Public Works and Transportation, National Road Council,
and National Risk Prevention and Emergency Response Commission, “Environmental
Management Plan: Juan Rafael Mora Porras Road,” April 2012 (hereinafter “Costa Rican 3.14
Environmental Management Plan”), pp. 9-10; see also Annex 3 of same document (NM, Vol. II,
Annex 2).
126Ibid., Annex 3. LANAMME and CFIA, together with his own reconnaissance in situ in October
127Costa Rican Environmental Management Plan, pp. 9 -10. In particular, it reports “[f]orest
disturbance along an approximate 75 -meter road stretch,” with “[a]lterations spread[ing] some 15 2012, “revealed a near complete lack of secondary, post -construction erosion
meters on both sides of the road at the ends of the stretch” in one section of the road, and that
“[a]pproximately a 3 -km long road section was found with trees removed” in another section. control measures at the many areas of exposed, bare soil created by the road
128d., p. 10.
Ibid., Annex 3.
129Ibid., p. 19. related construction and quarrying. This serious omission has resulted in significant and continuing accelerated erosion and sediment delivery to local cuts and fills, including “very elevated longitudinal slopes” that make transit in
130
streams and the Río San Juan.” certain sections of the R oad “almost impossible”.
the following images of what it calls “[a] dirt road with no drainage: as it was not
2 . Earthmoving and Topographical Changes Affecting the
San Juan de Nicaragua River
based on plans, disorganized cuts and fills were carried out.”
3.15 In addition to removing large areas of forest and other vegetation,
Costa Rica’s road construction efforts have reshaped the landscape along the
southern bank of the San Juan River, resulting in vast areas of exposed red earth,
where the land has been cut away (“cuts”), and where excavated materials have
been deposited in what are now mounds of excavated sediments (“fills”). Making
matters worse, these “earthmoving works,” as Costa Rica’s post -hoc
131
“Environmental Management Plan” calls them, were carried out in a
disordered and unprofessional manner. This is the conclusion reached by Costa reached similar conclusions in its May 2012 report, observing that many of the
Rica’s own national Federation of Engineers and Architects (CFIA) and the cuts and fills created during Costa Rica’s construction of the Road appear to have
University of Costa Rica’s National Laboratory. been made without reference to “any
3.16 The June 2012 CFIA Report found – after CFIA conducted two information”
separate site visits – that the land along the Road’s path had been cut and filled in approach to such “large earthmoving (cut and fill) operations”
132
a “disorganized” manner precisely because “it was not based on plans”. The
CFIA concluded that it was not possible to ascertain what, if any, “technical
criteria” had guided Costa Rica’s earthmoving efforts . The result was unstable
133
134
130Kondolf Report, Section 6 (NM, Vol. II, Annex 1). 135
131Costa Rican Environmental Management Plan, p. 9 (NM, Vol. II, Annex 2). 136
132 137
CFIA Report, p. 10 (NM, Vol. II, Annex 4); See also La Nación, Costa Rica, E. Rivera, E.
Oviedo & R. Rojas, “Serious errors expose trail to risk of collapse during the rainy season”, 28 138tem.”).
May 2012 (NM, Vol. II, Annex 35).
56significant and continuing accelerated erosion and sedimen t delivery to local cuts and fills, including “very elevated longitudinal slopes” that make transit in
130
streams and the Río San Juan.” certain sections of the Road “almost impossible”.
the following images of what it calls “[a] dirt road with no drainage: as it was not
2 . Earthmoving and Topographical Changes Affecting the
San Juan de Nicaragua River
based on plans, disorganized cuts and fills were carried out.”
3.15 In addition to removing large areas of forest and other vegetation,
Costa Rica’s road construction efforts have reshaped the landscape along the
southern bank of the San Juan River, resulting in vast areas of exposed red earth,
where the land has been cut away (“cuts”), and where excavated materials have
been deposited in what are now mounds of excavated sediments (“fills”). Making
matters worse, these “earthmoving works,” as Costa Rica’s post -hoc
131
“Environmental Management Plan” calls them, were carried out in a 3.17
disordered and unprofessional manner. This is the conclusion reached by Costa reached similar conclusions in its May 2012 report, observing that many of the
Rica’s own national Federation of Engineers and Architects (CFIA) and the cuts and fills created during Costa Rica’s construction of the Road appear to have
University of Costa Rica’s National Laboratory. been made without reference to
3.16 The June 2012 CFIA Report found – after CFIA conducted two information”
separate site visits – that the land along the Road’s path had been cut and filled in approach to such “large earthmoving (cut and fill) operations”
132
a “disorganized” manner precisely because “it was not based on plans”. The
CFIA concluded that it was not possible to ascertain what, if any, “technical
criteria” had guided Costa Rica’s earthmoving efforts . The result was unstable
133CFIA Report, p. 26, para. 5.8 (NM, Vol. II, Annex 4).
134Ibid., Figure 14.
130Kondolf Report, Section 6 (NM, Vol. II, Annex 1). 135Ibid.
131Costa Rican Environmental Management Plan, p. 9 (NM, Vol. II, Annex 2). 136LANAMME Report, p. 49 (NM, Vol. II, Annex 3).
132 137
CFIA Report, p. 10 (NM, Vol. II, Annex 4); See also La Nación, Costa Rica, E. Rivera, E. Ibid., p. 19 (“Cuts and fills in mountainous areas were done without following an order ly
Oviedo & R. Rojas, “Serious errors expose trail to risk of collapse during the rainy season”, 28 138tem.”).
May 2012 (NM, Vol. II, Annex35). Ibid., p. 28. LANAMME refers to as “stockpiles of materials not conforming to the basic
criteria for debris disposal site[s] or embankment management.” 139
3.18 Costa Rica’s lack of basic plans or preliminary studies also led to
the excessive clearing and alteration of land in some areas, including areas
parallel to the San Juan River that contain “markedly rugged terrain”. 140 This
caused earthmoving works to be more extensive and more complicated than
141
necessary, particularly given the existing slopes and type s of soil present. The
CFIA agreed that work in these sectors “is incomplete,” there are places where
the Road “is almost impossible to transit,” and “[i]mpa ct on the forest is
noticeable”. 142
3.19 Dr. Kondolf captured a number of images of the extensive and
insufficiently planned forest clearing and earthmoving undertaken by Costa Rica
proximity to the San Juan River created and exposed large areas of sediments to
in close proximity to the San Juan River. The following photograph is an
the elements, making erosion and the transfer of materials to the River via wind
example:
and water inevitable .
observed “surface run-off impact” in these areas , namely “the development of
gullies” that erode the soil of the slopes, making them unstable
collapse, especially when it rains.
that Costa Rica’s
inevitably result in the transfer of sediments to nearby waterbodies –
139
140Ibid., p. 19. 143
141Ibid., p. 31. 144
Ibid., p. 31.
142CFIA Report, p. 19 (NM, Vol. II, Annex 4). as a result of nonexistent drainage structures and instability of a large number of cuts and fills.”).
58LANAMME refers to as “stockpiles of materials not conforming to the basic
criteria for debris disposal site[s] or embankment management.” 139
3.18 Costa Rica’s lack of basic plans or preliminary studies also led to
the excessive clearing and alteration of land in some areas, including areas
parallel to the San Juan River that contain “markedly rugged terrain”. 140 This
caused earthmoving works to be more extensive and more complicated than
141
necessary, particularly given the existing slopes and type s of soil present. The
CFIA agreed that work in these sectors “is incomplete,” there are places where
the Road “is almost impossible to transit,” and “[i]mpa ct on the forest is
noticeable”. 142
3.19 Dr. Kondolf captured a number of images of the extensive and
3.20
insufficiently planned forest clearing and earthmoving undertaken by Costa Rica
proximity to the San Juan River created and exposed large areas of sediments to
in close proximity to the San Juan River. The following photograph is an
the elements, making erosion and the transfer of materials to the River via wind
example:
and water inevitable .
observed “surface run-off impact” in these areas , namely “the development of
gullies” that erode the soil of the slopes, making them unstable
collapse, especially when it rains.
that Costa Rica’s
inevitably result in the transfer of sediments to nearby waterbodies –
139
140Ibid., p. 19. 143
141Ibid., p. 31. 144LANAMME Report, p. 31 (NM, Vol. II, Annex 3).
Ibid., p. 31. Ibid., pp. 49 & 51 (noting that the Road has “a high risk of collapsing during the rainy season
142CFIA Report, p. 19 (NM, Vol. II, Annex 4). as a result of nonexistent drainage structures and instability of a large number of cuts and fills.”). the San Juan River – during the rainy season ; the following photograph was
provided as an example. 145 the road across steep, unstable hillsides,”
“deeply weathered, unconsolidated, or otherwise weak material, which is prone to
erosion and slope failure.”
of the principles of sound practice in road construction” – namely, that the “best
route, through the most stable terrain” should be selected.
Rica’s road construction activities have “ resulted in numerous, active fillslope
and hillslope failures, ranging in size from shallow sidecast
deep-seated landslides, with consequent downstream sediment delivery into the
146
Río San Juan.”
3.21 Dr. Kondolf agree s with the University of Costa Rica’s National
– and has indeed occurred – because much of the Road has been constructed
Laboratory. He concluded, based on his site visit in October 2012, that Costa
within 50 meters of the River, in violation of Costa Rica’s own regulations for the
Rica’s lack of proper geotechnical assessments for its Road project is “apparent”
protection of watercourses.
and that “standard engineering and construction practices for the location of the
right-of-way, cut and fill design, appropriateness of spoil disposal locations, road
Plan” that the road construction project has involved “[e]arthmoving works
surface drainage and stream crossing designs, and material compaction standards”
147 altering the ecosystem and direc tly or indirectly affecting water dynamics.”
have not been followed. According to Dr. Kondolf, “ These deficiencies are
148 This has included, specifically, “moderate sedimentation in waterbodies as a
pervasive”.
149
150
151
152
pushing material (removed from the cutbank) ‘over the edge’ so that it tumbles down the bank.
Such sidecast fill is prone to failure as a mass movement, often fai ling along the former (buried)
145Ibid., p. 39. ground surface, or partial failure of sediment within the fill”. Ibid., Section 3.1.2.
146Ibid., Figure 39. 153
147Kondolf Report, Section 4.5 (NM, Vol. II, Annex 1). 154
148Ibid., Section 4.5. 155
60the San Juan River – during the rainy season ; the following photograph was 3.22
provided as an example. 145 the road across steep, unstable hillsides,”
“deeply weathered, unconsolidated, or otherwise weak material, which is prone to
erosion and slope failure.”
of the principles of sound practice in road construction” – namely, that the “best
route, through the most stable terrain” should be selected.
Rica’s road construction activities have “resulted in numerous, active fillslope
and hillslope failures, ranging in size from shallow sidecast
deep-seated landslides, with consequent downstream sediment delivery into the
146
Río San Juan.”
3.21 Dr. Kondolf agree s with the University of Costa Rica’s National
– and has indeed occurred – because much of the R oad has been constructed
Laboratory. He concluded, based on his site visit in October 2012, that Costa
within 50 meters of the River, in violation of Costa Rica’s own regulations for the
Rica’s lack of proper geotechnical assessments for its Road project is “apparent”
protection of watercourses.
and that “standard engineering and construction practices for the location of the
3.23
right-of-way, cut and fill design, appropriateness of spoil disposal locations, road
Plan” that the road construction project has involved “[e]arthmoving works
surface drainage and stream crossing designs, and material compaction standards”
147 altering the ecosystem and directly or indirectly affecting water dynamics.”
have not been followed. According to Dr. Kondolf, “ These deficiencies are
148 This has included, specifically, “moderate sedimentation in waterbodies as a
pervasive”.
149Ibid., Section 4.1.
150Ibid., Section 4.3.
151Ibid., Section 4.3.
152
In road construction parlance, the term “side casting” refers to “the bulldozer blade simply
pushing material (removed from the cutbank) ‘over the edge’ so that it tumbles down the bank.
Such sidecast fill is prone to failure as a mass movement, often failing along the former (buried)
145Ibid., p. 39. ground surface, or partial failure of sediment within the fill”. Ibid., Section 3.1.2.
146Ibid., Figure 39. 153Ibid., Section 6.
147Kondolf Report, Section 4.5 (NM, Vol. II, Annex 1). 154Ibid., Section 4.2.
148Ibid., Section 4.5. 155Costa Rican Environmental Management Plan, p. 9 (NM, Vol. II, Annex 2). 156
result of surface runoff during construction processes,” which has been route” that Dr. Kondolf observed “has resulted in persistent and serious erosion of
exacerbated by the fact that, “[i]n some sectors, no soil conservation works were bare soils all along the recently bulldozed alignment and at disturbed rock quarry
implemented to minimize local water and soil impacts.” 157 Thus, in addition to sites,” with “[m]uch of this eroded sediment ha[ving] been delivered to the Río
being disorganized and excessive, Costa Rica’s earthmoving works were carried San Juan.”
out without the “soil conservation works” necessary to prevent erosion and prudent on- the-ground corrective actions continue to impact downslope and
sediment transfer. downstream water quality and resources of the Río San Juan.”
3.24 As a result, according to the University of Costa Rica’s National
Laboratory, existing conditions “could easily lead to serious landslide
158
problems” in sections of the R oad, and the situation “immediately requires a exposed soil – without properly planning such activities , analyzing the likely
major additional investment of resources to build missing drainage structures
results, or endeavoring to compact, cover or otherwise protect the resulting cuts
[and] complete and stabilize many cut and fill sectors”. 159 There is no evidence
and fills – Costa Rica has created unstable, bare slopes that are prone to erosion
that Costa Rica has acted upon these recommendations. To the contrary, it and even collapse.
appears that the contractors responsible for constructing Costa Rica’s road
“rapidly demobilized their equipment and crews and left the site with little effort
material in which they have been formed, and that “the steeper the cutbank, the
to stabilize the work sites or install erosion and sediment control measures prior more prone it is to slope failure.”
to the beginning of the rainy seas on,” and that, as of October 2012, “little
Laboratory reported that there are some locations where it is obvious that the
160
maintenance or corrective work has occurred”. This “evident lack of measures slopes created in the construction of Costa Rica’s Road, some of which are nearly
to prepare for the wet season and lack of erosion control measures along the
vertical,
156Costa Rican Environmental Management Plan, p. 19. In addition to sediments, runoff has also
led to the transmittal of solid and liquid waste from construction processes, including lubricants type, causing them to be “
and hydrocarbons, thereby polluting nearby bodies of water. Ibid .
157
Ibid., pp. 9 & 22 (emphasis added); see also Annex 3 of same document (noting the “[a]bsence 161
158soil conservation works to minimize impact on hydric and edaphic resource[s].”). 162
159LANAMME Report, p. 20 (NM, Vol. II, Annex 3). 163
Ibid., p. 51.
160Kondolf Report, Section 6 (NM , Vol. II, Annex 1). 164
62 156
result of surface runoff during construction processes,” which has been route” that Dr. Kondolf observed “has resulted in persistent and serious erosion of
exacerbated by the fact that, “[i]n some sectors, no soil conservation works were bare soils all along the recently bulldozed alignment and at disturbed rock quarry
implemented to minimize local water and soil impacts.” 157 Thus, in addition to sites,” with “[m]uch of this eroded sediment ha[ving] been delivered to the Río
being disorganized and excessive, Costa Rica’s earthmoving works were carried San Juan.”
out without the “soil conservation works” necessary to prevent erosion and prudent on- the-ground corrective actions continue to impact downslope and
sediment transfer. downstream water quality and resources of the Río San Juan.”
3.24 As a result, according to the University of Costa Rica’s National
Laboratory, existing conditions “could easily lead to serious landslide
3.25
158
problems” in sections of the R oad, and the situation “immediately requires a exposed soil – without properly planning such activities , analyzing the likely
major additional investment of resources to build missing drainage structures
results, or endeavoring to compact, cover or otherwise protect the resulting cuts
[and] complete and stabilize many cut and fill sectors”. 159 There is no evidence
and fills – Costa Rica has created unstable, bare slopes that are prone to erosion
that Costa Rica has acted upon these recommendations. To the contrary, it and even collapse.
appears that the contractors responsible for constructing Costa Rica’s road
3.26
“rapidly demobilized their equipment and crews and left the site with little effort
material in which they have been formed, and that “the steeper the cutbank, the
to stabilize the work sites or install erosion and sediment control measures prior more prone it is to slope failure.”
to the beginning of the rainy seas on,” and that, as of October 2012, “little
Laboratory reported that there are some locations where it is obvious that the
160
maintenance or corrective work has occurred”. This “evident lack of measures slopes created in the construction of Costa Rica’s Road, some of which are nearly
to prepare for the wet season and lack of erosion control measures along the 164
vertical,
156Costa Rican Environmental Management Plan, p. 19. In addition to sediments, runoff has also
led to the transmittal of solid and liquid waste from construction processes, including lubricants type, causing them to be “
and hydrocarbons, thereby polluting nearby bodies of water. Ibid .
157
Ibid., pp. 9 & 22 (emphasis added); see also Annex 3 of same document (noting the “[a]bsence 161
158soil conservation works to minimize impact on hydric and edaphic resource[s].”). 162Ibid., Section 4.8.
159LANAMME Report, p. 20 (NM, Vol. II, Annex 3). 163Ibid., Section 6.
Ibid., p. 51. Ibid., Sections 3.1.2 & 4.5.
160Kondolf Report, Section 6 (NM , Vol. II, Annex 1). 164LANAMME Report, p. 15 (NM Vol. II, Annex 3). 165
particularly in the rainy season.” What concerns Nicaragua is the location of stability and prevent erosion.
these “unstable slopes” in very close proximity to the San Juan River, and the risk and Architects recommend ed the immediate “[s]tabalization of the slopes with
that their susceptibility to “landslides” will result in tons of sediment being high margins and significant dimensions in order to avoid landslides during the
washed into the River during the heavy rainfalls that are common in the area. rains.”
3.27 Costa Rica’s Federation of Engineers and Architects voiced
concern about the same problem, emphasizing the presence of slopes that are four Management Plan” of April 2012 acknowledges that the slopes created in
166
to six meters high “with very elevated margins,” and calling particular constructing the Road do not have “safe and stable gradients” and are “devoid of
attention to a stretch of the Road where “huge slopes with high peaks and no vegetation,”
protection whatsoever” 167were created “a short distance from the bank of the Río increased risk of “focused erosion processes”
168
San Juan” – only “approximately 15 meters.” Juan River. These conditions prompted the recommendation
3.28 Costa Rican environmental and engineering organizations have slopes in sites where land cuts are more than 3 meters high” must be addressed
called for measures to stabilize and reinforce these unstable slopes in order to “to avoid landslides,”
prevent their deterioration and the transfer of sediments to surrounding bodies of are created, complementary slope-stabilizing measures should be taken”.
water. The National Laboratory of the University of Costa Rica insist ed that the again, there is no evidence, as of the submission of this Memorial, that Costa Rica
characteristics of the soil along the R oad’s route must be evaluated to ascertain has taken measures to implement its own recommendations.
whether the land is physically capable of maintaining the angles of the slopes that
169
have been cut into it (an analysis that should have been conducted before the took notice of
cuts were made), and recommend ed that works be undertaken to improve slope preponderance of steep hillslopes…resulting in significant accelerated
165Ibid., p. 29; see also p. 42 of same document (noting the existence of “unstable slopes as a
result of cuts that were not carried out at proper angles for the type of soil present,” resulting 170
slippage and erosion). 171
166CFIA Report, pp. 6, 9, 14, 15, 22 & 24 (NM, Vol. II, Annex 4). 172
167 173
168Ibid., p. 16; see also pp. 17-18. 174
169Ibid., p. 16; see also pp. 17-18 of same document. 175
LANAMME Report, p. 15 (NM, Vol. II, Annex 3).
64 165
particularly in the rainy season.” What concerns Nicaragua is the location of stability and prevent erosion.
these “unstable slopes” in very close proximity to the San Juan River, and the risk and Architects recommend ed the immediate “[s]tabalization of the slopes with
that their susceptibility to “landslides” will result in tons of sediment being high margins and significant dimensions in order to avoid landslides during the
171
washed into the River during the heavy rainfalls that are common in the area. rains.”
3.27 Costa Rica’s Federation of Engineers and Architects voiced 3.29
concern about the same problem, emphasizing the presence of slopes that are four Management Plan” of April 2012 acknowledges that the slopes created in
166
to six meters high “with very elevated margins,” and calling particular constructing the Road do not have “safe and stable gradients” and are “devoid of
attention to a stretch of the Road where “huge slopes with high peaks and no vegetation,”
protection whatsoever” 167 were created “a short distance from the bank of the Río increased risk of “focused erosion processes”
168
San Juan” – only “approximately 15 meters.” Juan River. These conditions prompted the recommendation
3.28 Costa Rican environmental and engineering organizations have slopes in sites where land cuts are more than 3 meters high” must be addressed
called for measures to stabilize and reinforce these unstable slopes in order to “to avoid landslides,”
prevent their deterioration and the transfer of sediments to surrounding bodies of are created, complementary slope-stabilizing measures should be taken”.
water. The National Laboratory of the University of Costa Rica insist ed that the again, there is no evidence, as of the submission of this Memorial, that Costa Rica
characteristics of the soil along the R oad’s route must be evaluated to ascertain has taken measures to implement its own recommendations.
whether the land is physically capable of maintaining the angles of the slopes that 3.30
169
have been cut into it (an analysis that should have been conducted before the took notice of
cuts were made), and recommend ed that works be undertaken to improve slope preponderance of steep hillslopes…resulting in significant accelerated
165Ibid., p. 29; see also p. 42 of same document (noting the existence of “unstable slopes as a
result of cuts that were not carried out at proper angles for the type of soil present,” resulting 17Ibid., p. 52.
slippage and erosion). 171CFIA Report, p. 27, para. 6.2 (NM, Vol. II, Annex 4).
166CFIA Report, pp. 6, 9, 14, 15, 22 & 24 (NM, Vol. II, Annex 4). 172See Costa Rican Environmental Management Plan, p. 23 (NM, Vol. II, Annex 2).
167 173
168Ibid., p. 16; see also pp. 17-18. 174Ibid., p. 22.
169Ibid., p. 16; see also pp. 17-18 of same document. 175Ibid., Annex 3.
LANAMME Report, p. 15 (NM, Vol. II, Annex 3). Ibid., p. 23. 176
and sediment delivery t o the Río San Juan at most of these locations.” The
team observed “numerous examples of steep cutbanks that have already failed,
both along the road itself and in quarries. ” They expressed concern that, “As the
exposed cutbanks continue to weather, and as the area is exposed to more intense
rains, these vulnerable slopes will inevitably experience a high rate of slope
failure and continuing erosion.” 177
3.31 These are not isolated problems. There are numerous sites of
concern, including those in the following images, which Dr. Kondolf and his
team captured during their site visit. A ll of these images, which Dr. Kondolf ’s
report characterizes as “just a few of the observed incipient to active instabilities
178
that are present along the road,” illustrate different problem areas directly
adjacent to the San Juan River:
176
177Kondolf Report, Appendix B, Section 4 (NM, Vol. II, Annex 1).
178Ibid., Section 4.5.
Ibid., Appendix B, Section 1 (emphasis added).
66 176
and sediment delivery t o the Río San Juan at most of these locations.” The
team observed “numerous examples of steep cutbanks that have already failed,
both along the road itself and in quarries. ” They expressed concern that, “As the
exposed cutbanks continue to weather, and as the area is exposed to more intense
rains, these vulnerable slopes will inevitably experience a high rate of slope
failure and continuing erosion.” 177
3.31 These are not isolated problems. There are numerous sites of
concern, including those in the following images, which Dr. Kondolf and his
team captured during their site visit. A ll of these images, which Dr. Kondolf ’s
report characterizes as “just a few of the observed incipient to active instabilities
178
that are present along the road,” illustrate different problem areas directly
adjacent to the San Juan River:
176
177Kondolf Report, Appendix B, Section 4 (NM, Vol. II, Annex 1).
178Ibid., Section 4.5.
Ibid., Appendix B, Section 1 (emphasis added). gullying and “mass wasting processes” – i.e., landslides , collapse and other
deterioration caused by gravity – have already occurred on hillslopes affected by
these cuts.
design standards in such close proximity to the Río San Juan, we expect
significantly elevated hillslope mass wasting processes to occur during future
large magnitude storm events.”
these sites of bare, unstable cutslopes, but also where C osta Rica’s construction
activities have resulted in the creation of unprotected, unstable piles of excavated
material, or “ fills.”
constructed. If the underlying slope has been properly cleaned and the fill
compacted to engineering standards, it may be stable for years or decades.”
on the other hand, the underlying slope is not cleared before the fill is placed on
it, and if the fill is not compacted to engineering standards, the fill “will be highly
unstable.”
debris, either because the
debris was incorporated in the cutting of the bank, the likelihood of failure is
increased.”
3.32 According to Dr. Kondolf, “during the short time period since road
construction activities began and as a result of generally average rainfall events,”
179
these unstable, unprotected slopes have already caused problems. In particular, 180
181
182
183
17Ibid., Appendix B, Section 1. 184
68 gullying and “mass wasting processes” – i.e., landslides , collapse and other
deterioration caused by gravity – have already occurred on hillslopes affected by
these cuts.
design standards in such close proximity to the Río San Juan, we expect
significantly elevated hillslope mass wasting processes to occur during future
large magnitude storm events.”
3.33
these sites of bare, unstable cutslopes, but also where C osta Rica’s construction
activities have resulted in the creation of unprotected, unstable piles of excavated
material, or “ fills.”
constructed. If the underlying slope has been properly cleaned and the fill
compacted to engineering standards, it may be stable for years or decades.”
on the other hand, the underlying slope is not cleared before the fill is placed on
it, and if the fill is not compacted to engineering standards, the fill “will be highly
unstable.”
debris, either because the
debris was incorporated in the cutting of the bank, the likelihood of failure is
increased.”
3.32 According to Dr. Kondolf, “during the short time period since road
construction activities began and as a result of generally average rainfall events,”
179
these unstable, unprotected slopes have already caused problems. In particular, 180
181bid., e.g., Appendix B, Section 1.
182Ibid., Appendix B, Section 1.
183Ibid., Section 3.1.2.
Ibid., Section 3.1.2.
179Ibid., Appendix B, Section 1. 184Ibid., Section 3.1.2. 3.34 Based on these criteria, the University of Costa Rica’s National
Laboratory expressed particular concern about “the way several fills have been
built, in terms of both their undue height and the poor evidence of a mechanical
185
layer compaction process, as mandated by best engineering practices.” The
National Laboratory observed that some fills of up to 1.5 meters high had been
created but not properly compacted – “a normal practice for this kind of work” –
186
leaving the material very loose and prone to eroding or sliding away. In other
locations, the fills were piled up to 3 meters high, with borders showing signs of
prior landslides, “indicating they were not built according to suitable compaction
practice, from both the construction and engineering point of view, that damages
187
processes.” not only [the] body of water but also [ the Road itself], since there is no erosion
3.35 The National Laboratory expressed concern that the uncompacted control to prevent loss of material under rainy conditions”.
fill areas “are particularly vulnerable to damage during the rainy season,” 188
reporting that a lack of adequate compaction appears to have already led to sidecasting’ road construction methods on steep hillslopes in such close proximity
189
slippage and erosion “in most sectors.” The National Laboratory further to waterbodies displays a total disregard of well
observed what it described as the “poor management ” of excavated material,
environmental protection principles.”
which has in some instances be en “laid next to a body of water ” in an constructed fillslopes that did not clearly exhibit widespread settlement, slope
190
uncontrolled fashion, as depicted in the following photograph: failure and mass movement of material following construction.”
fills “appeared to have pieces of dead wood incorporated into [them], or living
185LANAMME Report, p. 21 (NM, Vol. II, Annex 3).
186Ibid., p. 18.
187Ibid., p. 46. 191
188 192
189Ibid., p. 21. 193
190Ibid., p. 29. 194
Ibid.,, p. 24.
70 3.34 Based on these criteria, the University of Costa Rica’s National
Laboratory expressed particular concern about “the way several fills have been
built, in terms of both their undue height and the poor evidence of a mechanical
layer compaction process, as mandated by best engineering practices.” 185 The
National Laboratory observed that some fills of up to 1.5 meters high had been
created but not properly compacted – “a normal practice for this kind of work” –
leaving the material very loose and prone to eroding or sliding away. 186 In other
locations, the fills were piled up to 3 meters high, with borders showing signs of 3.36
prior landslides, “indicating they were not built according to suitable compaction practice, from both the construction and engineering point of view, that damages
processes.” 187
not only [the] body of water but also [ the Road itself], since there is no erosion
3.35 The National Laboratory expressed concern that the uncompacted
control to prevent loss of material under rainy conditions”.
188
fill areas “are particularly vulnerable to damage during the rainy season,” 3.37
reporting that a lack of adequate compaction appears to have already led to
sidecasting’ road construction methods on steep hillslopes in such close proximity
slippage and erosion “in most sectors.” 189 The National Laboratory further
to waterbodies displays a total disregard of well
observed what it described as the “poor management ” of excavated material, environmental protection principles.”
which has in some instances be en “ laid next to a body of water ” in an constructed fillslopes that did not clearly exhibit widespread settlement, slope
uncontrolled fashion, 190 as depicted in the following photograph:
failure and mass movement of material following construction.”
fills “appeared to have pieces of dead wood incorporated into [them], or living
185LANAMME Report, p. 21 (NM, Vol. II, Annex 3).
186Ibid., p. 18.
187Ibid., p. 46. 191Ibid., Figure 21: “Inadequate cut material and embankment management.”
188Ibid., p. 21. 192Ibid., p. 24.
189 193
190Ibid., p. 29. 194Kondolf Report, Appendix B, Section 4 (NM, Vol II, Annex 1).
Ibid.,, p. 24. Ibid., Section 4.5 (emphasis in original). 195
trees that were buried by sidecast fill .” According to Dr. Kondolf, “[t]hese
construction methods – sidecasting, lack of compaction and incorporation of
woody debris in fill materials – are a recipe for continued slope failure and off -
196
site sediment delivery,” and have already “ resulted in numerous, active
fillslope and hillslope failures, ranging in size from shallow sidecast failures to
large deep-seated landslides, with consequent downstream sediment delivery into
197
the Río San Juan.” The following photographs taken by Dr. Kondolf and his
team illustrate the point:
prevent further erosion and sediment transport
locations: “Without immediate efforts to stabilize these failing fillslopes (i.e.
utilizing excavators to retrieve all the failing fills and creating a ‘full bench’
road), ongoing erosion and sedimentation impacts will continue to occur at
extreme rates,”
procedure to cover exposed areas, either with a completed cover of mulch, quick-
growing vegetation or, where no vegetation exists, or has been planted but has not
yet grown in, protective geotextiles and erosion-control fabrics.
April 2012 plan acknowledges this , stating that “[e]xcavations should remain
195
196Ibid., Section 4.5. 198
Ibid., Section 4.5.
197Ibid., Section 6. 199
72 195
trees that were buried by sidecast fill .” According to Dr. Kondolf, “[t]hese
construction methods – sidecasting, lack of compaction and incorporation of
woody debris in fill materials – are a recipe for continued slope failure and off -
196
site sediment delivery,” and have already “ resulted in numerous, active
fillslope and hillslope failures, ranging in size from shallow sidecast failures to
large deep-seated landslides, with consequent downstream sediment delivery into
197
the Río San Juan.” The following photographs taken by Dr. Kondolf and his
team illustrate the point:
3.38
prevent further erosion and sediment transport
locations: “Without immediate efforts to stabilize these failing fillslopes (i.e.
utilizing excavators to retrieve all the failing fills and creating a ‘full bench’
road), ongoing erosion and sedimentation impacts will continue to occur at
extreme rates,”
3.39
procedure to cover exposed areas, either with a completed cover of mulch, quick-
growing vegetation or, where no vegetation exists, or has been planted but has not
yet grown in, protective geotextiles and erosion-control fabrics.
April 2012 plan acknowledges this , stating that “[e]xcavations should remain
195
196Ibid., Section 4.5. 198
Ibid., Section 4.5. Ibid., Appendix B, Section 4.
197Ibid., Section 6. 199Ibid., Section 4.8. 200
uncovered the shortest time possible,” and that it is necessary to “[p]lace mesh
201
over slopes to avoid landslides and plant vetiver grass on the side of the slope.”
3.40 Unfortunately, this acknowledgment came too late – long after the
exposed “cuts” and “fills” were left uncovered and vulnerable to the elements –
and went unheeded. The University of Costa Rica’s National Laboratory reported
in May 2012 that the R oad wa s constructed without “ slope protection or
impermeabilization measures implemented to help to decrease moisture impact
202
during high rainfall events.” The National Laboratory did note that in some
locations fabric had been stretched on the slopes, presumably for protection, but
found that it “ will not decrease the amount of sedimentation because it is not a
203
nonwoven geotextile capable of retaining these sediments.” Moreover, even
that Costa Rica’s “cuts” and “fills” of exposed earth in close proximity to the San
this fabric of limited utility had only been used sporadically, such that the
Juan River remained uncovered or inadequately covered, just as its slopes
National Laboratory found, as depicted below, that “ it is not significant ly
remained precariously steep and its fills inadequately compacted.
204
effective” : and his team “observed unprotected, eroding bare soil areas to be
throughout virtually all construction areas along the alignment.”
“evident lack of measures to prepare for the wet season and [a] lack of erosion
control measures along the route ,” which already resulted in “persistent and
serious erosion of bare soils”
delivery of eroded sediment to the San Juan River.
200Costa Rican Environmental Management Plan, p. 23 (NM, Vol. II, Annex 2).
201Ibid., Annex 3.
202 205
203LANAMME Report, p. 29 (NM, Vol. II, Annex 3). 206
204Ibid.,p. 37. 207
Ibid., p. 37.
74 200
uncovered the shortest time possible,” and that it is necessary to “[p]lace mesh
201
over slopes to avoid landslides and plant vetiver grass on the side of the slope.”
3.40 Unfortunately, this acknowledgment came too late – long after the
exposed “cuts” and “fills” were left uncovered and vulnerable to the elements –
and went unheeded. The University of Costa Rica’s National Laboratory reported
in May 2012 that the Road was constructed without “slope protection or
impermeabilization measures implemented to help to decrease moisture impact
202
during high rainfall events.” The National Laboratory did note that in some
locations fabric had been stretched on the slopes, presumably for protection, but
found that it “will not decrease the amount of sedimentation because it is not a
3.41
203
nonwoven geotextile capable of retaining these sediments.” Moreover, even
that Costa Rica’s “cuts” and “fills” of exposed earth in close proximity to the San
this fabric of limited utility had only been used sporadically, such that the
Juan River remained uncovered or inadequately covered,
National Laboratory found, as depicted below, that “ it is not significant ly
remained precariously steep and its fills inadequately compacted.
204
effective” : and his team “ observed unprotected, eroding bare soil areas
throughout virtually all construction areas along the alignment.”
“evident lack of measures to prepare for the wet season and
control measures along the route ,” which already resulted in “persistent and
serious erosion of bare soils” all along the recently bulldozed Road
delivery of eroded sediment to the San Juan River.
200Costa Rican Environmental Management Plan, p. 23 (NM, Vol. II, Annex 2).
201Ibid., Annex 3.
202 205
203LANAMME Report, p. 29 (NM, Vol. II, Annex 3). 206Ibid., Figures 36 & 38.
204Ibid.,p. 37. 207Kondolf Report, Section 4.8 (NM, Vol. II, Annex 1).
Ibid., p. 37. Ibid., Section 4.8. 4 . Lack of Proper Drainage Systems and Stream order to prevent damage to the road itself, as well as to surrounding land and
Crossings
bodies of water.
3.42 Management of surface water is essential to proper road
regard for the need to avoid excessive clearing or the creation of unst
construction and maintenance, particularly in a n area like the San Juan River
unprotected slopes, so too did it fail to incorporate an appropriate drainage
Basin, which receives an extraordinarily large volume of rainfall and is
system. In fact, there were no plans for one.
crisscrossed by a multitude of watercourses, many of which lead directly into the
208
San Juan River. As the National L aboratory of the University of Costa Rica
“Environmental Management Plan” published at that time, it noted the absence of
observed, “Managing surface and run-off water is one of the main issues to be
a drainage system, sediment traps, and related drainage gutters, and called for
209
taken into account in constructing this kind of road.” Remarkably, Costa Rica
them to be installed immediately “to prevent sediments from leaving work areas
failed to consider this during the planning (such as it was) and construction of its
and reaching nearby bodies of water,”
Road.
installed as soon as possible before placing the fills to prevent excess moisture
3.43 Because rainwater inevitably washes away unstable and exposed
and reduce erosion.”
soils from deforested areas , as well as from unprotected “cuts” and “fills”
no longer possible to install drainages “before” placing the fills.
attendant to road construction sites, and deposits those soils as sediments in
nearby watercourses and wetlands, a proper drainage system to minimize erosion
and Architects found, after conducting two separate site visits
210
is essential to prevent environmental harm. This is true even for roads that
drainage systems were lacking in many areas.
have been constructed properly , without excessive deforestation or unstable,
adequate drainage for channeling rainwater was observed. It can be foreseen that
unprotected cuts and fills near watercourses, because even well-constructed roads
disturb natural drainage patterns and infiltration into groundwater, increasing and
211
212
concentrating storm runoff, which must be appropriately managed and drained in 213
need for sediment traps to be installed and periodically cleaned, together with structures to reduce
the speed of rainwater flows).
208Ibid., Sections 4.7-4.10. 214
209LANAMME Report, p. 35 (NM, Vol. II, Annex 3). Costa Rica, E. Rivera, E. Oviedo & R. Rojas, “Serious errors expose trail to risk of collapse
210See Kondolf Report, Section 3 (NM, Vol. II, Annex 1). during the rainy season,” 28 May 2012(NM, Vol. II, Annex 35).
76 4 . Lack of Proper Drainage Systems and Stream order to prevent damage to the road itself, as well as to surrounding land and
Crossings
bodies of water.
3.42 Management of surface water is essential to proper road
regard for the need to avoid excessive clearing or the creation of unst
construction and maintenance, particularly in a n area like the San Juan River
unprotected slopes, so too did it fail to incorporate an appropriate drainage
Basin, which receives an extraordinarily large volume of rainfall and is
system. In fact, there were no plans for one.
crisscrossed by a multitude of watercourses, many of which lead directly into the
3.44
208
San Juan River. As the National L aboratory of the University of Costa Rica
“Environmental Management Plan” published at that time, it noted the absence of
observed, “Managing surface and run-off water is one of the main issues to be
a drainage system, sediment traps, and related drainage gutters, and called for
209
taken into account in constructing this kind of road.” Remarkably, Costa Rica
them to be installed immediately “to prevent sediments from leaving work areas
failed to consider this during the planning (such as it was) and construction of its
and reaching nearby bodies of water,”
Road.
installed as soon as possible before placing the fills to prevent excess moisture
3.43 Because rainwater inevitably washes away unstable and exposed
and reduce erosion.”
soils from deforested areas , as well as from unprotected “cuts” and “fills”
no longer possible to install drainages “before” placing the fills.
attendant to road construction sites, and deposits those soils as sediments in
3.45
nearby watercourses and wetlands, a proper drainage system to minimize erosion
and Architects found, after conducting two separate site visits
210
is essential to prevent environmental harm. This is true even for roads that
drainage systems were lacking in many areas.
have been constructed properly , without excessive deforestation or unstable,
adequate drainage for channeling rainwater was observed. It can be foreseen that
unprotected cuts and fills near watercourses, because even well-constructed roads
disturb natural drainage patterns and infiltration into groundwater, increasing and
211
212Ibid., Section 3.
concentrating storm runoff, which must be appropriately managed and drained in 213Costa Rican Environmental Management Plan, pp. 20 & 2 2 (NM, Vol. II, Annex 2).
Ibid., p. 22 (emphasis added); see also
need for sediment traps to be installed and periodically cleaned, together with structures to reduce
the speed of rainwater flows).
208Ibid., Sections 4.7-4.10. 214CFIA Report, pp. 5, 6, 9, 10, 14, 16, 20, 21 & 22 (NM, Vol. II, Annex 4); See also La Nación,
209LANAMME Report, p. 35 (NM, Vol. II, Annex 3). Costa Rica, E. Rivera, E. Oviedo & R. Rojas, “Serious errors expose trail to risk of collapse
210See Kondolf Report, Section 3 (NM, Vol. II, Annex 1). during the rainy season,” 28 May 2012(NM, Vol. II, Annex 35). 215
this situation may prematurely erode the work already done.” The organization collecting and concentrating runoff along the road” .
therefore recommended the “[i]mmediate construction of drainage canals in all implement proper drainage, Costa Rica has done exactly the opposite, utilizing
stretches of the road where gravel is already in place; and theirconstruction in the construction methods that have resulted in “long lengths of ‘hydrologically
water in areas where this is still a dirt road.” 216 connected’ roads that will during every future rainfall and runoff event deliver
3.46 The University of Costa Rica’s National Laboratory made similar sediment to nearby stream channels crossed by the road.”
findings, observing serious “ drainage shortfalls” all along the length of the explanation:
217
Road. Indeed, in one of the stretches tha t runs parallel to the River, the
National Laboratory found “a large number of sites with no drainage structures”
218
at all. In other areas, the National Laboratory observed problems with “surface
219
water drainage and an absence of gutters” and commented that, in addition to
missing “roadside gutters or any other drainage system to channel surface run-off
water,” various stretches are also lacking the curvature necessary to properly
drain water. 220
3.47 The lack of proper drainage is a significant failing of Costa Rica’s
road construction project, and is a major cause of harm to the San Juan River. As
Dr. Kondolf explained, in order to “ protect water quality and minimize ongoing
and future sediment transport and delivery to streams ,” Best Managemen t
Practices for road construction “emphasize dispersing road runoff rather than
This is why regulators in North America and elsewhere prohibit the construction
of “hydrologically connected” roads: in order to prevent or minimize “
215
216CFIA Report, p. 25, para. 5.4 (NM, Vol. II, Annex 4).
Ibid., p. 27, para. 6.2.
217LANAMME Report, p. 49 (NM, Vol. II, Annex 3).
218Ibid., p. 49. 221
219Ibid., p. 15. 222
220Ibid., p. 25. 223
78 215
this situation may prematurely erode the work already done.” The organization collecting and concentrating runoff along the road” .
therefore recommended the “[i]mmediate construction of drainage canals in all implement proper drainage, Costa Rica has done exactly the opposite, utilizing
stretches of the road where gravel is already in place; and theirconstruction in the construction methods that have resulted in “long lengths of ‘hydrologically
water in areas where this is still a dirt road.” 216 connected’ roads that will during every future rainfall and runoff event deliver
3.46 The University of Costa Rica’s National Laboratory made similar sediment to nearby stream channels crossed by the road.”
findings, observing serious “ drainage shortfalls” all along the length of the explanation:
217
Road. Indeed, in one of the stretches tha t runs parallel to the River, the
National Laboratory found “a large number of sites with no drainage structures”
218
at all. In other areas, the National Laboratory observed problems with “surface
219
water drainage and an absence of gutters” and commented that, in addition to
missing “roadside gutters or any other drainage system to channel surface run-off
water,” various stretches are also lacking the curvature necessary to properly
drain water. 220
3.47 The lack of proper drainage is a significant failing of Costa Rica’s
road construction project, and is a major cause of harm to the San Juan River. As
Dr. Kondolf explained, in order to “ protect water quality and minimize ongoing
and future sediment transport and delivery to streams ,” Best Managemen t
Practices for road construction “emphasize dispersing road runoff rather than
This is why regulators in North America and elsewhere prohibit the construction
of “hydrologically connected” roads: in order to prevent or minimize “
215
216CFIA Report, p. 25, para. 5.4 (NM, Vol. II, Annex 4).
Ibid., p. 27, para. 6.2.
217LANAMME Report, p. 49 (NM, Vol. II, Annex 3).
218Ibid., p. 49. 221Kondolf Report, Appendix B, Section 6 (NM, Vol. II, Annex 1).
219Ibid., p. 15. 222Ibid., Appendix B, Section 6.
220Ibid., p. 25. 223Ibid., Section 4.9. caused fine sediment inputs to streams, reduce cumulative watershed effects, and
224
protect water quality for beneficial users.” proper drainage systems, Costa Rica appears to have ignored the fact that there
3.48 Nevertheless, “a large proportion of [Costa Rica’s] road is are “numerous”
hydrologically connected to nearby streams, and through them, to the mainstem large parts of the San Juan River – lie at the bottom of slopes and are therefore
225
[i.e., San Juan] river.” In particular, the R oad “has long lengths of road especially at risk of sedimentati on as a result of slope erosion, landslides
226
surfaces that drain to inboard ditches,” “efficiently routing most runoff and sediment-laden runoff .
eroded sediment directly to adjacent streams.” 227 Further, “Not only is the runoff ultimately discharge directly into the San Juan River.
from a given rainfall increased because the compacted road surface does not
infiltrate, but the runoff is collected and concentrated such that road surface and Laboratory reports that in the 13 kilometers between Tiricias and San Isidro –
ditch erosion is virtually guaranteed to occur, and where these concentrated flows mountainous and forested section of the R oad – small rivers and streams “ are
are discharged onto adjacent fills and native slopes, severe gullying results.” 228 found approximately every 200 meters” .
These gullies are both sources of sediment , because of the way they quickly many additional watercourses during his site visit in October 2012. He and his
erode, and channels to carry sediment-laden water downstream, including to the team mapped 126 stream and river crossings along the length of the Road.
San Juan River. 229 Thus, Costa Rica’s failure to incorporate proper road surface
drainage structures during its construction of the R oad has resulted in the San Juan River because, as the ir character and quality are compromised, so
“widespread and serious gully erosion, which efficiently delivers eroded sediment are the character and quality of the San Juan itself
directly to the Río San Juan” and to the tributaries that feed it. 230 conduits to efficiently transport sediment to the Río San Juan.”
created a scenario that “effectively guarantee[s] that road surface erosion and fine
sediments are delivered directly to tributary streams and thence to the Río San
224Ibid., Section 4.10.
225Ibid., Section 4.9 (emphasis removed). 231
226Ibid., Section 4.8. 232
227Ibid., Section 4.9. 233
228Ibid., Section 4.8. 234
229 235
230Ibid., Section 6. 236
Ibid., Section 4.8.
80caused fine sediment inputs to streams, reduce cumulative watershed effects, and 3.49
224
protect water quality for beneficial users.” proper drainage systems, Costa Rica appears to have ignored the fact that there
3.48 Nevertheless, “a large proportion of [Costa Rica’s] road is are “numerous”
hydrologically connected to nearby streams, and through them, to the mainstem large parts of the San Juan River – lie at the bottom of slopes and are therefore
225
[i.e., San Juan] river.” In particular, the R oad “has long lengths of road especially at risk of sedimentati on as a result of slope erosion, landslides
226
surfaces that drain to inboard ditches,” “efficiently routing most runoff and sediment-laden runoff .
eroded sediment directly to adjacent streams.” 227 Further, “Not only is the runoff ultimately discharge directly into the San Juan River.
from a given rainfall increased because the compacted road surface does not 3.50
infiltrate, but the runoff is collected and concentrated such that road surface and Laboratory reports that in the 13 kilometers between Tiricias and San Isidro –
ditch erosion is virtually guaranteed to occur, and where these concentrated flows mountainous and forested section of the R oad – small rivers and streams “ are
are discharged onto adjacent fills and native slopes, severe gullying results.” 228 found approximately every 200 meters” .
These gullies are both sources of sediment , because of the way they quickly many additional watercourses during his site visit in October 2012. He and his
erode, and channels to carry sediment-laden water downstream, including to the team mapped 126 stream and river crossings along the length of the Road.
San Juan River. 229 Thus, Costa Rica’s failure to incorporate proper road surface 3.51
drainage structures during its construction of the R oad has resulted in the San Juan River because, as the ir character and quality are compromised, so
“widespread and serious gully erosion, which efficiently delivers eroded sediment are the character and quality of the San Juan itself
directly to the Río San Juan” and to the tributaries that feed it. 230 conduits to efficiently transport sediment to the Río San Juan.”
created a scenario that “effectively guarantee[s] that road surface erosion and fine
sediments are delivered directly to tributary streams and thence to the Río San
224Ibid., Section 4.10.
225Ibid., Section 4.9 (emphasis removed). 231LANAMME Report, p. 40 (NM, Vol. II, Annex 3).
226Ibid., Section 4.8. 232See, e.g., LANAMME Report, p. 32.
227Ibid., Section 4.9. 233Kondolf Report, Section 4.9 (NM, Vol. II, Annex 1).
228Ibid., Section 4.8. 234LANAMME Report, p. 40 (NM, Vol. II, Annex 3).
229 235
230Ibid., Section 6. 236Kondolf Report, Sections 4.9 & 6 (NM, Vol. II, Annex 1).
Ibid., Section 4.8. Ibid., Section 4.9. Juan,” posing a “significant long -term, persistent threat of cumulative , road-
related and man-caused fine sediment impacts to the Río San Juan.” 237
3.52 Not until April 2012, after much of the R oad’s construction had
already been completed, did Costa Rican officials recommend that
“[h]ydrological studies should be made for all water crossings,” that “a channel
238
maintenance plan should be developed,” and that an “engineering and
geological assessment [should be performed] that permits to ensure the stability
water that cross the route,” Costa Rica’s Administrative Environmental Court
239
and permanence of the works already initiated.” These are precisely the
found that “[a]t least seven rivers, streams, and creeks display different types of
assessments and plans that should have been conducted prior to Costa Rica’s
damage, due to the deviation of their watercourses, and canalization, piping,
initiation of construction activities over a year earlier. As the University of Costa
tapping or clogging of the waterways with sedimentation.”
Rica’s National Laboratory noted, proper planning necessarily affects where and
Federation of Engineers and Architects fo und the same problem in a range of
how certain activities are undertaken, and the early construction phase is the
locations along the Road’s course .
proper time to create the structures necessary to address water -related
included in Annex 4 to this Memorial.
concerns. 240
3.53 Costa Rica’s neglect of appropriate pre- construction assessment
simply dump fill into and obstruct or divert the natural watercourse, but rather to
and planning regarding the management of water courses has created a range of build some sort of crossing over it. As Dr. Kondolf explained, these “earthen fill
problems. As the National Laboratory explained:
crossings with culverts”
One of the issues of greatest concern is the poor
management of water bodies crossed by the route. placement of “massive volumes of fill within the stream channel and valley,
237
238Ibid., Section 6.
Costa Rican Environmental Management Plan, pp. 19 -20 (NM, Vol. II, Annex 2); see also 241
Annex 3 of same document (recommending a study “to determine current characteristics of 242
superficial hydric system, including wetlands, in order to identify potential impacts on the hydric
system in the intervened area that are not yet visible”). 1856 Trail”, 15 July 2012 (NM, Vol. II, Annex 37).
239Ibid., Annex 3. 243
240See LANAMME Report, p. 35 (NM, Vol. II, Annex 3). 244
82Juan,” posing a “significant long -term, persistent threat of cumulative , road-
related and man-caused fine sediment impacts to the Río San Juan.” 237
3.52 Not until April 2012, after much of the R oad’s construction had
already been completed, did Costa Rican officials recommend that
“[h]ydrological studies should be made for all water crossings,” that “a channel
238
maintenance plan should be developed,” and that an “engineering and
3.54
geological assessment [should be performed] that permits to ensure the stability
water that cross the route,” Costa Rica’s Administrative Environmental Court
239
and permanence of the works already initiated.” These are precisely the
found that “[a]t least seven rivers, streams, and creeks display different types of
assessments and plans that should have been conducted prior to Costa Rica’s
damage, due to the deviation of their watercourses, and canalization, piping,
initiation of construction activities over a year earlier. As the University of Costa
tapping or clogging of the waterways with sedimentation.”
Rica’s National Laboratory noted, proper planning necessarily affects where and
Federation of Engineers and Architects fo und the same problem in a range of
how certain activities are undertaken, and the early construction phase is the
locations along the Road’s course .
proper time to create the structures necessary to address water -related
included in Annex 4 to this Memorial.
concerns. 240
3.55
3.53 Costa Rica’s neglect of appropriate pre- construction assessment
simply dump fill into and obstruct or divert the natural watercourse, but rather to
and planning regarding the management of water courses has created a range of build some sort of crossing over it. As Dr. Kondolf explained, these “earthen fill
problems. As the National Laboratory explained:
crossings with culverts”
One of the issues of greatest concern is the poor
management of water bodies crossed by the route. placement of “massive volumes of fill within the stream channel and valley,
237
238Ibid., Section 6.
Costa Rican Environmental Management Plan, pp. 19 -20 (NM, Vol. II, Annex 2); see also 241
Annex 3 of same document (recommending a study “to determine current characteristics of 242Ibid., p. 34; see also p. 40 of same document.
superficial hydric system, including wetlands, in order to identify potential impacts on the hydric El País, Costa Rica “Environmental Court Confirmed Excessive Felling for Construction of
system in the intervened area that are not yet visible”). 1856 Trail”, 15 July 2012 (NM, Vol. II, Annex 37).
239Ibid., Annex 3. 243See CFIA Report, pp. 9, 12, 19, 21, 22, 24 & 26 para. 5.9 (NM, Vol. II, Annex 4).
240See LANAMME Report, p. 35 (NM, Vol. II, Annex 3). 244Kondolf Report, Section 3.1.3 (NM, Vol. II, Annex 1). where it can easily be eroded and enter the river system .” 245 In order to avoid and in imminent danger of collapsing.”
such erosion, a stream crossing structure must be constructed properly , pursuant images to illustrate these concerns:
to accepted standards, so that it will not back up with water, become blocked with
debris, or collapse under its own weight or that of the traffic traversing the
246
road. Yet, most of the stream crossings Costa Rica built into its R oad were
constructed improperly. Costa Rica’s own institutions have reached this
conclusion. In mid -2012, t he Administrative Environmental Court gave the
example of a particular watercourse having been “strangled with rock to shorten
the distance for building a bridge. … An eventual flood or strong waterfront will
Rican Federation of Engineers and Architects warned in May and June 2012 that
collapse and bring down the bridge and its foundations.” 247 The University of
properly designed drainage pipes adequate to handle the flow of each watercourse
Costa Rica’s National Laboratory found that the Road’s stream crossings were
must be installed as quickly as possible in order to prevent damage to the R
constructed in an ad hoc, rather than a carefully planned, manner and tha t they
embankment a nd resulting sediment transfer during the rainy season.
were inadequate, consisting of clusters of tree trunks , which are bound to rot and
August 2012, Cos ta Rican press reports confirmed the warnings of the
collapse, and improperly insta lled pipes and cargo containers . 248 The Costa
Rican National Laboratory and Federation of Engineers and Architects
Rican Federation of Engineers and Architects cited the same problem, noting that
various stream crossings – including some over streams that lead directly in to the
these haphazard structures “do not comply with minimal structural design and
San Juan River – were “crumbling,” “threatening to fall into the waterway at any
engineering mechanics requirements” 249and, in some cases, “are already bulging
moment,” or had already “collapsed”.
245
246Ibid., Section 3.1.3.
Ibid., Section 3.1.3.
247 See El País, Costa Rica “Environmental Court Confirmed Excessive Felling for Construction 250
of 1856 Trail”, 15 July 2012 (NM, Vol. II, Annex 37). (noting that these structures “already reflect deterioration and are at risk of collapsing”).
248LANAMME Report, pp. 35, 40-41 & 44-46 (NM, Vol. II, Annex 3) ; see also Kondolf Report, 251
Section 6 (explaining that wood used in stream crossings “will rot, probably within a decade”) 252
(NM, Vol. II, Annex 1). 253
249 254
CFIA Report, p. 27, para. 6.2; see also p. 28, para. 6.3 of same document. (NM, Vol. II, Annex
4). Vol. II, Annex 39).
84where it can easily be eroded and enter the river system .” 245 In order to avoid and in imminent danger of collapsing.”
such erosion, a stream crossing structure must be constructed properly, pursuant images to illustrate these concerns:
to accepted standards, so that it will not back up with water, become blocked with
debris, or collapse under its own weight or that of the traffic traversing the
246
road. Yet, most of the stream crossings Costa Rica built into its Road were
constructed improperly. Costa Rica’s own institutions have reached this
conclusion. In mid -2012, the Administrative Environmental Court gave the
example of a particular watercourse having been “strangled with rock to shorten
3.56
the distance for building a bridge. … An eventual flood or strong waterfront will
Rican Federation of Engineers and Architects warned in May and June 2012 that
collapse and bring down the bridge and its foundations.” 247 The University of
properly designed drainage pipes adequate to handle the flow of each watercourse
Costa Rica’s National Laboratory found that the Road’s stream crossings were
must be installed as quickly as possible in order to prevent damage to the
constructed in an ad hoc, rather than a carefully planned, manner and tha t they
embankment and resulting sediment transfer during the rainy season.
were inadequate, consisting of clusters of tree trunks, which are bound to rot and
August 2012, Costa Rican press reports confirmed the warnings of the
collapse, and improperly installed pipes and cargo containers .248 The Costa
Rican National Laboratory and Federation of Engineers and Architects
Rican Federation of Engineers and Architects cited the same problem, noting that
various stream crossings – including some over streams that lead directly into the
these haphazard structures “do not comply with minimal structural design and
San Juan River – were “crumbling,” “threatening to fall into the waterway at any
engineering mechanics requirements” 249 and, in some cases, “are already bulging
moment,” or had already “collapsed”.
245
246Ibid., Section 3.1.3.
Ibid., Section 3.1.3.
247See El País, Costa Rica “Environmental Court Confirmed Excessive Felling for Construction 250CFIA Report, pp. 9 &12 (NM, Vol. II, Annex 4) ;
of 1856 Trail”, 15 July 2012 (NM, Vol. II, Annex 37). (noting that these structures “already reflect deterioration and are at risk of collapsing”).
248LANAMME Report, pp. 35, 40-41 & 44-46 (NM, Vol. II, Annex 3) ; see also Kondolf Report, 251LANAMME Report, Figure 40: “Provisional log stream crossing.” (NM, Vol. II, Annex 3).
Section 6 (explaining that wood used in stream crossings “will rot, probably within a decade”) 252Ibid., Figure 45: “Poorly installed Rib-Loc pipes.”
(NM, Vol. II, Annex 1). 253Ibid., p. 40; CFIA Report, p. 27, para. 6.2 (NM, Vol. II, Annex 4).
249 254
CFIA Report, p. 27, para. 6.2; see also p. 28, para. 6.3 of same document. (NM, Vol. II, Annex La Nación, Costa Rica “Border Roadway presents more Collapsing”,13 August 2012 (NM,
4). Vol. II, Annex 39). 3.57 Nevertheless, these problems had not been addressed as of the construction processes, such as lubricants and hydrocarbons.”
time Dr. Kondolf and his team visited the site in October 2012. Dr. Kondolf Costa Rica concedes that watercourses in the project area have been impacted by
concluded: “From our field inspection (from aerial overflight and from river boat sediments and pollutants as a result of its road construction activities.
inspections) of approximately 60 recently constructed stream crossings, we
observed that essentially all road-stream crossings exhibited some form of serious
design and/or construction de ficiency,” 255as well as a need “to curtail ongoing
inevitable by the reckless manner in which Costa Rica hastily chose to construct
and future erosion and sediment delivery to the Río San Juan, and these
256 Road 1856 on an “emergency” basis, without an Environmental Impact
emergency actions should be of the highest priority to all parties involved.
3.58 As a result, harm to the San Juan River has already occurred and Assessment or properly drawn engineering plans, resulting in all of the defects
and deficiencies in road design and construction –
continues to occur: “At virtually all the observed stream crossings, some volume
harm to the River and other nearby watercourses that flow into it –
of sediment has been introduced directly into the receiving tributary stream and to
the Río San Juan,” 257 and “active erosion and sediment delivery were identified in Part B above. In this Part C , Nicaragua shows that Costa Rica’s
258 irresponsible and unlawful actions have already caused, and will continue to
occurring”.
cause, harm to Nicaragua in the form of massive sedimentation and other
3.59 Costa Rica’s April 2012 “Environmental Management Plan”
acknowledges the damage to the San Juan River, even as it attempts to understate pollution of the River, with attendant adverse impacts on water quality, aquatic
it; it recognizes that there has been “local impact from moderate sedimentation in
260
261
waterbodies as a result of surface runoff during construction processes,”
Management Plan saw fit to emphasize the importance of “[p]reventing fuel, oil, or chemi
“sediments clogging waterbodies,” 259and “small pollution foci in some bodies of spills in general,” insisting that “[c]are should be taken...to make sure no oil or fuel leaks may
reach bodies of water,” and that “[m]achinery washing and maintenance tasks in streams [must]
be prohibited.” Ibid., p. 20. To be sure, those same offi cials are quick to insist that “some” of the
water due to carried solid (excavated materials and others) and liquid waste from clogged waterbodies are “unimportant,” and that “although small amounts of sediments may be
carried by rain or some streams flowing into the [San Juan R]iver within its ecosystem normal
dynamics,” “[n]o sediment deposition was observed in the San Juan River.” Ibid., p. 19. These
255Kondolf Report, Section 4.6 (emphasis added) (NM, Vol. II, Annex 1). statements are not convincing. They mean at most, that the authors of the Environmental
256Ibid., Section 5.1. Management Plan were not able to see –
257
258Ibid., Section 4.6. road works on the San Juan River during their few hours of on-site reconnaissance. This certainly
259Ibid., Appendix B, Section 2. does not mean that the impacts which have occurred and continue to occur to surface water in the
Costa Rican Environmental Management Plan, p. 19(NM, Vol. II, Annex 2). project area have not led and will not continue to lead to impacts in Nicaragua’s River.
86 3.57 Nevertheless, these problems had not been addressed as of the construction processes, such as lubricants and hydrocarbons.”
time Dr. Kondolf and his team visited the site in October 2012. Dr. Kondolf Costa Rica concedes that watercourses in the project area have been impacted by
concluded: “From our field inspection (from aerial overflight and from river boat sediments and pollutants as a result of its road construction activities.
inspections) of approximately 60 recently constructed stream crossings, we
C .
observed that essentially all road-stream crossings exhibited some form of serious
design and/or construction de ficiency,” 255 as well as a need “to curtail ongoing 3.60
inevitable by the reckless manner in which Costa Rica hastily chose to construct
and future erosion and sediment delivery to the Río San Juan, and these
256 Road 1856 on an “emergency” basis, without an Environmental Impact
emergency actions should be of the highest priority to all parties involved.
3.58 As a result, harm to the San Juan River has already occurred and Assessment or properly drawn engineering plans, resulting in all of the defects
and deficiencies in road design and construction –
continues to occur: “At virtually all the observed stream crossings, some volume
harm to the River and other nearby watercourses that flow into it –
of sediment has been introduced directly into the receiving tributary stream and to
the Río San Juan,” 257 and “active erosion and sediment delivery were identified in Part B above. In this Part C , Nicaragua shows that Costa Rica’s
258 irresponsible and unlawful actions have already caused, and will continue to
occurring”.
cause, harm to Nicaragua in the form of massive sedimentation and other
3.59 Costa Rica’s April 2012 “Environmental Management Plan”
acknowledges the damage to the San Juan River, even as it attempts to understate pollution of the River, with attendant adverse impacts on water quality, aquatic
it; it recognizes that there has been “local impact from moderate sedimentation in
260Ibid., p. 19.
261
waterbodies as a result of surface runoff during construction processes,” For instance, regarding the issue of contamination, the authors of the Environmental
Management Plan saw fit to emphasize the importance of “[p]reventing fuel, oil, or chemi
“sediments clogging waterbodies,” 259and “small pollution foci in some bodies of spills in general,” insisting that “[c]are should be taken...to make sure no oil or fuel leaks may
reach bodies of water,” and that “[m]achinery washing and maintenance tasks in streams [must]
be prohibited.” Ibid., p. 20. To be sure, those same offi cials are quick to insist that “some” of the
water due to carried solid (excavated materials and others) and liquid waste from clogged waterbodies are “unimportant,” and that “although small amounts of sediments may be
carried by rain or some streams flowing into the [San Juan R]iver within its ecosystem normal
dynamics,” “[n]o sediment deposition was observed in the San Juan River.” Ibid., p. 19. These
255Kondolf Report, Section 4.6 (emphasis added) (NM, Vol. II, Annex 1). statements are not convincing. They mean at most, that the authors of the Environmental
256Ibid., Section 5.1. Management Plan were not able to see –
257
258Ibid., Section 4.6. road works on the San Juan River during their few hours of on-site reconnaissance. This certainly
259Ibid., Appendix B, Section 2. does not mean that the impacts which have occurred and continue to occur to surface water in the
Costa Rican Environmental Management Plan, p. 19(NM, Vol. II, Annex 2). project area have not led and will not continue to lead to impacts in Nicaragua’s River. life, navigation, and other general uses and enjoyments of the River by local commencing works of this magnitude.”
residents and businesses. that Costa Rica had caused “ecological and related damages to the San Juan de
1 . The San Juan de Nicaragua River has been Damaged, Nicaragua River, as well as to the shared ecosystem that forms part of the Central
and Continues to b e Damaged, by Costa Rica’s Road American Biological Corridor and to the respective basin,” and to “the common
Construction
wildlife biodiversity that rotates and remains around the river and maintains the
3.61 According to the Central American Court of Justice (or “CACJ”),
262 ecological balance of fauna, flora, and the environment.”
Costa Rica’s “high -risk and environmentally hazardous work” has already
American Court also ruled that Costa Rica
caused harm to the San Juan River and its zone of influence – and thus to
“serious and unpredictable risks,” which the members of the Court were able to
Nicaragua. The CACJ found that this harm will continue as long as the impacts
observe first-hand during their site visit,
of Costa Rica’s reckless, illegal behaviors continue, unless Costa Rica
from them the erosion and environmental damage that had been caused.
immediately implements appropriate remediation measures.
3.62 The Central American Court reached this conclusion after visiting
photographs. As Dr. Kondolf explained in an expert report submitted to the
the Road for itself on 12 January 2012 and reviewing the scientific and technical
Court in August 2012 in the Case Concerning Certain Activities Carried Out by
evidence before it . 263 The CACJ found that Costa Rica initiated its road
Nicaragua in the Border Area (Costa Ri
construction project without the prior studies and analyses required not only
264 evidence of “extensive disturbance” at many sites, “creating steep eroding slopes
under the relevant professional standards but also under regional and
265 that deliver sediment directly to the channel of the Río San Juan.”
international law – studies and analyses which the CACJ called “essential for
266
267
268
262 269
263C.A.C.J Judgment,, 21 June 2012, p. 21, Fifth Ruling (NM, Vol. II, Annex 13).
Ibid., pp. 1, 4-6 & 21-22. (reporting that Costa Rica attempted, but failed, to hide erosion and environmental damage from
264 See Crhoy.com , Costa Rica “Engineers Association: ‘Emergency Decree does not justify the visiting judges by covering unstable slopes with synthetic fabrics to obscure the orange color
absence of engineering pr inciples”, 30 May 2012 (quoting the Executive Director of the Costa of the exposed earth, and by covering exposed drainage pipes with dirt) (NM, Vol. II, Annex 26);
Rican CFIA as characterizing the project as not having followed “the proper steps of engineering” See also La Prensa, Nicaragua, “Costa Rica’s difficulties due to road construction ” 16 January
and having not been “adequately designed and planned”) (Annex 108 to the Counter Memorial of 2012 (similar) (NM, Vol. II, Annex 27).
Nicaragua (NCM) in the Dispute Concerning Certain Activities Carried out by Nicaragua in the 270
265der Area (Costa Rica v. Nicaragua). Review of Reports by Thorne, UNITAR, Ramsar, MEET, and Araya
See C.A.C.J Judgment,, 21 June 2012, p. 21, Fourth Ruling. (NM, Vol. II, Annex 13). submitted to the Court on 6 August 2012 as Appendix 1 to the Counter -Memorial of the Republic
88life, navigation, and other general uses and enjoyments of the River by local commencing works of this magnitude.”
residents and businesses. that Costa Rica had caused “ecological and related damages to the San Juan de
1 . The San Juan de Nicaragua River has been Damaged, Nicaragua River, as well as to the shared ecosystem that forms part of the Central
and Continues to b e Damaged, by Costa Rica’s Road American Biological Corridor and to the respective basin,” and to “the common
Construction
wildlife biodiversity that rotates and remains around the river and maintains the
3.61 According to the Central American Court of Justice (or “CACJ”),
262 ecological balance of fauna, flora, and the environment.”
Costa Rica’s “high -risk and environmentally hazardous work” has already
American Court also ruled that Costa Rica
caused harm to the San Juan River and its zone of influence – and thus to
“serious and unpredictable risks,” which the members of the Court were able to
Nicaragua. The CACJ found that this harm will continue as long as the impacts
observe first-hand during their site visit,
of Costa Rica’s reckless, illegal behaviors continue, unless Costa Rica
from them the erosion and environmental damage that had been caused.
immediately implements appropriate remediation measures.
3.63
3.62 The Central American Court reached this conclusion after visiting
photographs. As Dr. Kondolf explained in an expert report submitted to the
the Road for itself on 12 January 2012 and reviewing the scientific and technical
Court in August 2012 in the Case Concerning Certain Activities Carried Out by
evidence before it . 263 The CACJ found that Costa Rica initiated its road
Nicaragua in the Border Area (Costa Ri
construction project without the prior studies and analyses required not only
264 evidence of “extensive disturbance” at many sites, “creating steep eroding slopes
under the relevant professional standards but also under regional and
265 that deliver sediment directly to the channel of the Río San Juan.”
international law – studies and analyses which the CACJ called “essential for
266Ibid., p. 20 (emphasis added).
267Ibid., p. 22, Seventh Ruling.
268
262 269Ibid., p. 21, Fifth Ruling (NM, Vol. II, Annex 13).
263C.A.C.J Judgment,, 21 June 2012, p. 21, Fifth Ruling (NM, Vol. II, Annex 13). E.g., La Prensa, Nicaragua, “ Surrounding damage could not be hidden,” 14 January 2012
Ibid., pp. 1, 4-6 & 21-22. (reporting that Costa Rica attempted, but failed, to hide erosion and environmental damage from
264See Crhoy.com , Costa Rica “Engineers Association: ‘Emergency Decree does not justify the visiting judges by covering unstable slopes with synthetic fabrics to obscure the orange color
absence of engineering pr inciples”, 30 May 2012 (quoting the Executive Director of the Costa of the exposed earth, and by covering exposed drainage pipes with dirt) (NM, Vol. II, Annex 26);
Rican CFIA as characterizing the project as not having followed “the proper steps of engineering” See also La Prensa, Nicaragua, “Costa Rica’s difficulties due to road construction ” 16 January
and having not been “adequately designed and planned”) (Annex 108 to the Counter Memorial of 2012 (similar) (NM, Vol. II, Annex 27).
Nicaragua (NCM) in the Dispute Concerning Certain Activities Carried out by Nicaragua in the 270G. Mathias Kondolf, “Distributary Channels of the Rio San Juan, Nicaragua and Co sta Rica:
265der Area (Costa Rica v. Nicaragua). Review of Reports by Thorne, UNITAR, Ramsar, MEET, and Araya
See C.A.C.J Judgment,, 21 June 2012, p. 21, Fourth Ruling. (NM, Vol. II, Annex 13). submitted to the Court on 6 August 2012 as Appendix 1 to the Counter -Memorial of the Republic there is photographic evidence, including the example below , of “raw, eroding
slopes,” some of them “clearly show[ing] tongues of coarse sediment, reflecting
the transport of sediment by surface runoff from the disturbed area directly into
271
the channel” of the San Juan :
Road project for the same reason. It urged that the stretches of the Road “where
its path is very close to the bank of the Río San Juan...should be re -evaluated”
“by way of a technical study under present applicable law.”
report explained, various Costa Rican laws required the Road to be constructed at
least 50 meters away from the River.
here, avoidance of harm to the San Juan River required a minimum distance of at
3.64 In its ruling against Costa Rica, the Central American Court
repeatedly stressed that the proximity of the Road to the San Juan River was
272
273
largely responsible for the damage caused to the River:
stretches where the recess on the bank of the Río San Juan should be re vised; in some areas the
recess is of approximately 10 meters”); p. 16 (“In several stretches of the road that were inspected
▯ the path of the road is a short distance from the bank of the Río san Juan, some of these bluffs are
of Nicaragua in the Case Concerning Certain Activities Carried Out by Nicaragua in the Border at a distance of approximately 15 meters.”); p. 18 (distance from the River in the 15 kilometers
Area (Costa Rica v. Nicaragua) (hereinafter “First Kondolf Report”), Section 2.14 (Appendix 1 to near Tiricias “should also be evaluated for compliance with the law”); and p. 26 (“there are doubts
the Counter Memorial of Nicaragua (NCM) in the Dispute Concerning Certain Activities Carried regarding the recess of the road along the Río San Juan in some stretches where it is on
271 by Nicaragua in the Border Area (Costa Rica v. Nicaragua). 274ers from the bank.”) (NM, Vol. II, Annex 4).
First Kondolf Report, Section 2.14. 275
90there is photographic evidence , including the example below , of “raw, eroding
slopes,” some of them “clearly show[ing] tongues of coarse sediment, reflecting
the transport of sediment by surface runoff from the disturbed area directly into
271
the channel” of the San Juan :
3.65
Road project for the same reason. It urged that the stretches of the Road “where
its path is very close to the bank of the Río San Juan...should be re -evaluated”
“by way of a technical study under present applicable law.”
report explained, various Costa Rican laws required the Road to be constructed at
least 50 meters away from the River.
3.66
here, avoidance of harm to the San Juan River required a minimum distance of at
3.64 In its ruling against Costa Rica, the Central American Court
repeatedly stressed that the proximity of the Road to the San Juan River was
272
273C.A.C.J Judgment, 21 June 2012, pp. 19-20 (emphasis added) (NM, Vol. II, Annex 13).
largely responsible for the damage caused to the River: CFIA Report, p. 13; see also
stretches where the recess on the bank of the Río San Juan should be re vised; in some areas the
recess is of approximately 10 meters”); p. 16 (“In several stretches of the road that were inspected
the path of the road is a short distance from the bank of the Río san Juan, some of these bluffs are
of Nicaragua in the Case Concerning Certain Activities Carried Out by Nicaragua in the Border at a distance of approximatel y 15 meters.”); p. 18 (distance from the River in the 15 kilometers
Area (Costa Rica v. Nicaragua) (hereinafter “First Kondolf Report”), Section 2.14 (Appendix 1 to near Tiricias “should also be evaluated for compliance with the law”); and p. 26 (“there are doubts
the Counter Memorial of Nicaragua (NCM) in the Dispute Concerning Certain Activities Carried regarding the recess of the road along the Río San Juan in some stretches where it is on
271 by Nicaragua in the Border Area (Costa Rica v. Nicaragua). 274ers from the bank.”) (NM, Vol. II, Annex 4).
First Kondolf Report, Section 2.14. 275Ibid., p. 27, para. 6.3.
Ibid., p. 25, para. 5.6. least 100 meters between the Road and the River. However, based on his on-site “nearly half of the road was built within 100 m of the River, greatly elevating the
inspection and comparison of high- resolution satellite imagery , he found that potential for the road to negatively impact the Río San Juan.”
Costa Rica violated even its own 50 meter minimum distance requirement along Kondolf:
276
at least 17.9 kilometers of the Road. In the upstream section to the west,
before the confluence of the San Carlos River with the San Juan, where the
terrain is at its steepest and was largely undisturbed prior to Costa Rica’s
construction efforts, some 30% of the Road has been built in viol ation of the 50-
meter requirement. 277 Moreover, this “measurement includes only the road itself,
and does not include the numerous new driveways, residential clearings and
initial attempts to construct the road that were abandoned in favor of another
route,” many of which were also less than 50 meters from the River. 278 There are build the Road immediately adjacent to the River, “sediment eroded from the land
even a number of locations where the Road comes within a mere five (5) meters cleared for its construction has a direct path into the river channel,” making it “a
from the bank. 279 sediment source that is well connected to the receiving waters.”
3.67 Based on their experience assessing impacts of roads and other “every reason to believe that this extensive disturbance di rectly adjacent to the
Río San Juan has contributed substantial volumes of sediments directly into the
land-use disturbances on vulnerable watercourses, and their inspection of Costa
Rica’s Road in particular, Dr. Kondolf and his team determined that a buffer zone river,”
of 100 meters was required, taking into account “which sections of road are likely from the location of the Road and the manner in which it was constructed are
to contribute eroded sediment directly to the river.” 280 One of the reasons so addressed.
much Road-related sediment has already made its way into the River is that
281
276 282
277Kondolf Report, Sections 2.2-2.3 & 4.2 (NM, Vol. II, Annex 1). 283
278Ibid., Sections 4.2-4.3 & 4.12.
279Ibid., Section 4.2. in the Dispute Concerning Certain Activities Carried out by Nicaragua in the Border Area (Costa
Ibid., Section 4.2. Rica v. Nicaragua).
280Ibid., Section 4.2. 284
92least 100 meters between the Road and the River. However, based on his on-site “nearly half of the road was built within 100 m of the River, greatly elevating the
inspection and comparison of high- resolution satellite imagery , he found that potential for the road to negatively impact the Río San Juan.”
Costa Rica violated even its own 50 meter minimum distance requirement along Kondolf:
276
at least 17.9 kilometers of the Road. In the upstream section to the west,
before the confluence of the San Carlos River with the San Juan, where the
terrain is at its steepest and was largely undisturbed prior to Costa Rica’s
construction efforts, some 30% of the Road has been built in viol ation of the 50-
meter requirement. 277 Moreover, this “measurement includes only the road itself,
and does not include the numerous new driveways, residential clearings and
initial attempts to construct the road that were abandoned in favor of another 3.68
route,” many of which were also less than 50 meters from the River. 278 There are build the Road immediately adjacent to the River, “sediment eroded from the land
even a number of locations where the Road comes within a mere five (5) meters cleared for its construction has a direct path into the river channel,” making it “a
from the bank. 279 sediment source that is well connected to the receiving waters.”
3.67 Based on their experience assessing impacts of roads and other “every reason to believe that this extensive disturbance di rectly adjacent to the
Río San Juan has contributed substantial volumes of sediments directly into the
land-use disturbances on vulnerable watercourses, and their inspection of Costa
284
Rica’s Road in particular, Dr. Kondolf and his team determined that a buffer zone river,”
of 100 meters was required, taking into account “which sections of road are likely from the location of the Road and the manner in which it was constructed are
to contribute eroded sediment directly to the river.” 280 One of the reasons so addressed.
much Road-related sediment has already made its way into the River is that 3.69
281Ibid., Section 4.2 (emphasis added).
276 282
277Kondolf Report, Sections 2.2-2.3 & 4.2 (NM, Vol. II, Annex 1). 283Ibid., Section 4.3.
278Ibid., Sections 4.2-4.3 & 4.12. First Kondolf Report, Section 2.14 ( Appendix 1 to the Counter Memorial of Nicaragua (NCM)
279Ibid., Section 4.2. in the Dispute Concerning Certain Activities Carried out by Nicaragua in the Border Area (Costa
Ibid., Section 4.2. Rica v. Nicaragua).
280Ibid., Section 4.2. 284Ibid., Section 2.14. [T]he rapid, unplanned, poorly designed and poorly
constructed road has clearly resulted in both on- site
and off-site environmental impacts as a direct result were found to be eroding and collapsing directly into the River. As Dr. Kondolf
of accelerated erosion and landsliding along the
road alignment. Work on the project did not follow observed, “At many locations , fillslopes appear to be actively adjusting and
generally accepted or scientifically developed
engineering standards and Best Management virtually ‘melting’ downslope with little evidence of maintenance or corrective
Practices related to protecting water quality and
natural resources. Consequently, past and effort along the route. As a consequence, accelerated human
continuing erosion is widespread and unchecked,
with no obvious efforts being put forth to address processes remain unchecked, and s ediment continues to be delivered directly to
the observed serious problems where t285road
alignment crosses steeper terrain. the Río San Juan.”
As a consequence, there are many segments of the Road that “have delivered immediately adjacent to the San Juan River:
sediment to the river or pose a high risk of future sediment delivery to t he Río
San Juan.” 286
3.70 Dr. Kondolf and his team were able to extract samples from
various “debris cones and fine sediment deposits in the channel of the Río San
Juan, all clearly derived from road-induced erosion”. 287 As to the ways in which
these sediments have reached the San Juan , Dr. Kondolf and his team identified
over 50 “sediment delivery locations ” during their field work, documenting
various types of “pathways of sediment visible from eroding sites to the river
channel” where deposited cones of sedi ment were visible underwater, as well as
288
the details of these “well-connected sediment sources.”
285Kondolf Report, Section 6 (NM, Vol. II, Annex 1).
286Ibid., Section 2.4; see also, inter alia, Sections 2.3, 4.11 & 6 of same document.
287Ibid., Section 2.4.
288Ibid., Sections 2.4 & 4.12. 289
94 [T]he rapid, unplanned, poorly designed and poorly 3.71
constructed road has clearly resulted in both on- site
and off-site environmental impacts as a direct result were found to be eroding and collapsing directly into the River. As Dr. Kondolf
of accelerated erosion and landsliding along the
road alignment. Work on the project did not follow observed, “At many locations , fillslopes appear to be actively adjusting and
generally accepted or scientifically developed
engineering standards and Best Management virtually ‘melting’ downslope with little evidence of maintenance or corrective
Practices related to protecting water quality and
natural resources. Consequently, past and effort along the route. As a consequence, accelerated human
continuing erosion is widespread and unchecked,
with no obvious efforts being put forth to address processes remain unchecked, and sediment continues to be delivered directly to
the observed serious problems where 285 road
alignment crosses steeper terrain. the Río San Juan.”
As a consequence, there are many segments of the Road that “have delivered immediately adjacent to the San Juan River:
sediment to the river or pose a high risk of future sediment delivery to t he Río
San Juan.” 286
3.70 Dr. Kondolf and his team were able to extract samples from
various “debris cones and fine sediment deposits in the channel of the Río San
Juan, all clearly derived from road-induced erosion”. 287 As to the ways in which
these sediments have reached the San Juan , Dr. Kondolf and his team identified
over 50 “sediment delivery locations ” during their field work, documenting
various types of “pathways of sediment visible from eroding sites to the river
channel” where deposited cones of sedi ment were visible underwater, as well as
288
the details of these “well-connected sediment sources.”
285Kondolf Report, Section 6 (NM, Vol. II, Annex 1).
286Ibid., Section 2.4; see also, inter alia, Sections 2.3, 4.11 & 6 of same document.
287Ibid., Section 2.4.
288Ibid., Sections 2.4 & 4.12. 28Ibid., Section 4.5 (internal citations to figures omitted). seasonable construction activities.”
just off the south bank of the River, provides an example:
3.72 A second sediment delivery mechanism to the River documented
during Dr. Kondolf’s October 2012 site visit consists of the gullies have been
“carved by concentrated road runoff and landslides in unstable road cuts and
290
poorly constructed road fills along the newly built road.” According to Dr.
erosion” visible along much of the Road “delivers eroded sediment directly to the
Kondolf, t hese gullies, which are “rare in the natural, undisturbed tropical
Río San Juan” when water flows through and continuously erodes the gullies
landscape, are nearly ubiquitous on both cut- and fillslopes, as well as on bare soil
collecting sediment as it goes, and makes its way downhill the short distances to
291
areas exhibiting any slope steepness ,” and they have been caused by Costa
the River.
Rica’s “poorly constructed and compacted fills…over-steepened cutbanks, poorly
designed road surface drainage, and lack of any efforts to maintain the road post -
292
wasting, gully erosion and surface erosion processes are widespread and common,” appearing in
290 “virtually all disturbed land areas,” and there is scant evidence that efforts have been made to
291Kondolf Report, Section 2.4; see also Section 4.11 of same document (NM, Vol. II, Annex 1). 293ntrol the ongoing erosion and sediment transport process”).
Ibid., Appendix B, Section 3.
96 seasonable construction activities.”
just off the south bank of the River, provides an example:
3.72 A second sediment delivery mechanism to the River documented
during Dr. Kondolf’s October 2012 site visit consists of the gullies have been
“carved by concentrated road runoff and landslides in unstable road cuts and
3.73
290
poorly constructed road fills along the newly built road.” According to Dr.
erosion” visible along much of the Road “delivers eroded sediment directly to the
Kondolf, t hese gullies, which are “rare in the natural, undisturbed tropical
Río San Juan” when water flows through and continuously erodes the gullies
landscape, are nearly ubiquitous on both cut- and fillslopes, as well as on bare soil
collecting sediment as it goes, and makes its way downhill the short distances to
291
areas exhibiting any slope steepness ,” and they have been caused by Costa
the River.
Rica’s “poorly constructed and compacted fills…over-steepened cutbanks, poorly
designed road surface drainage, and lack of any efforts to maintain the road post-
292 Ibid., Appendix B, Section 3; see also
wasting, gully erosion and surface erosion processes are widespread and common,” appearing in
290 “virtually all disturbed land areas,” and there is scant evidence that efforts have been made to
291Kondolf Report, Section 2.4; see also Section 4.11 of same document (NM, Vol. II, Annex 1). 293ntrol the ongoing erosion and sediment transport process”).
Ibid., Appendix B, Section 3. Ibid., Section 4.8. earthen road fill has been delivered to the Río San Juan.” 294 In several locations,
Dr. Kondolf and his team photographed the “sediment deltas” that have formed in
the River as a result of this gully erosion and related sediment transport, as shown
in the following example:
Some of the “sediment deltas” that have formed in the San Juan River as a result
of the widespread gully erosion caused by Costa Rica’s improper road
construction techniques are more visible from the air, exhibiting the same reddish
hue that characterizes the disordered, unstable gashes Costa Rica has carved into
the landscape. The following photographs were taken from a helicopter:
294Ibid., Section 4.11.
98earthen road fill has been delivered to the Río San Juan.” 294 In several locations,
Dr. Kondolf and his team photographed the “sediment deltas” that have formed in
the River as a result of this gully erosion and related sediment transport, as shown
in the following example:
Some of the “sediment deltas” that have formed in the San Juan River as a result
of the widespread gully erosion caused by Costa Rica’s improper road
construction techniques are more visible from the air, exhibiting the same reddish
hue that characterizes the disordered, unstable gashes Costa Rica has carved into
the landscape. The following photographs were taken from a helicopter:
294Ibid., Section 4.11. 3.74 A third sediment transport mechanism documented by Dr. Kondolf
and his team consists of the tributaries that cross the Road and reach the San Juan channels that Costa Rica has dug, intentionally connecting i
River. As explained in Part B of this Chapter, many of these watercourses have Juan River and ensuring that
received sediment-laden runoff as a result of Road-related erosion and transported transferred to the River. As Dr. Kondolf found, Costa Rica’s construction of its
it to the San Juan. 295 Dr. Kondolf found that much of the sediment from the Road involved the digging of man-made ditches, as well as the “intentional re-
“extensively rilled and gullied” fills “enters the river system at stream crossings. routing and diversion of natural stream channels,” which “focused concentrated
Similarly, sediment eroded from the road surface enters the stream system at road flow to areas where erosion is accelerated and sediment delivery to the Río San
crossings; these are the lowest points in the road system, so roads drain towar ds Juan is virtually assured.”
them, carrying eroded sediment.” 296 The eroded sediments are transferred by Road to the River are visible in the following images:
these streams into the San Juan River. As Dr. Kondolf and his team found:
Almost all of the observed confluences exhibited
evidence of varying degrees of recent, active and/or
ongoing sediment transport into the [River]. Visual
sedimentation effects ranged from thin veneers of
silt- and clay -sized sediments deposited on and
amongst stunted sedges and grasses, to the
formation of coarse grained terraced outwash deltas
and alluvial fans. Several of these outwash deltas
extended up to 10 meters into the [River] . Many
observed tributaries were considerably more turbid
than the main stem [River] . These persistent
cumulative impacts will continue to occur without
an immediate exte nsive effort at conducting
emergency erosion control , grade and slope
stabilization, effectively dispersing road surface
runoff, and re -ro297ng many road segments farther
from the [River].
295See Part A, Section 4, supra.
296Kondolf Report, Section 4.11 (internal citations to figures omitted) (NM, Vol. II, Annex 1).
297Ibid., Appendix B, Section 5. 298
100 3.74 A third sediment transport mechanism documented by Dr. Kondolf 3.75
and his team consists of the tributaries that cross the Road and reach the San Juan channels that Costa Rica has dug, intentionally connecting i
River. As explained in Part B of this Chapter, many of these watercourses have Juan River and ensuring that
received sediment-laden runoff as a result of Road-related erosion and transported transferred to the River. As Dr. Kondolf found, Costa Rica’s construction of its
it to the San Juan. 295 Dr. Kondolf found that much of the sediment from the Road involved the digging of man-made ditches, as well as the “intentional re-
“extensively rilled and gullied” fills “enters the river system at stream crossings. routing and diversion of natural stream channels,” which “focused concentrated
Similarly, sediment eroded from the road surface enters the stream system at road flow to areas where erosion is accelerated and sediment delivery to the Río San
crossings; these are the lowest points in the road system, so roads drain towar ds Juan is virtually assured.”
them, carrying eroded sediment.” 296 The eroded sediments are transferred by Road to the River are visible in the following images:
these streams into the San Juan River. As Dr. Kondolf and his team found:
Almost all of the observed confluences exhibited
evidence of varying degrees of recent, active and/or
ongoing sediment transport into the [River]. Visual
sedimentation effects ranged from thin veneers of
silt- and clay -sized sediments deposited on and
amongst stunted sedges and grasses, to the
formation of coarse grained terraced outwash deltas
and alluvial fans. Several of these outwash deltas
extended up to 10 meters into the [River] . Many
observed tributaries were considerably more turbid
than the main stem [River] . These persistent
cumulative impacts will continue to occur without
an immediate exte nsive effort at conducting
emergency erosion control , grade and slope
stabilization, effectively dispersing road surface
runoff, and re -ro297ng many road segments farther
from the [River].
295See Part A, Section 4, supra.
296Kondolf Report, Section 4.11 (internal citations to figures omitted) (NM, Vol. II, Annex 1).
297Ibid., Appendix B, Section 5. 29Ibid., Section 6. Road impacts on
mechanisms which Dr. Kondolf and his team observed and documented reflect
only a fraction of the much larger sediment transfers to the River that have taken
place to date as a result of Costa Rica’s construction of theRoad:
“astronomically accelerated over background natural gully erosion rates,” and the
“lack of any planning, design, construction and
road is resulting in widespread erosion that is displacing tens of thousands of
cubic meters of soil ”.
literature, including studies on road surface erosion rates in t ropical areas, Dr.
Kondolf and his team estimate that, in just the 41-kilometer stretch of the R oad
upstream from the confluence of the San Carlos River, surface erosion
299
300
102 3.76 The sediment fans, choked vegetation and other obvious signs of
Road impacts on the River result ing from these four sediment delivery
mechanisms which Dr. Kondolf and his team observed and documented reflect
only a fraction of the much larger sediment transfers to the River that have taken
place to date as a result of Costa Rica’s construction of theRoad:
It is important to note that the sediment we could
sample was only the “lag deposit” from a much
larger sediment load that was carried into the river.
The cones of sand and gravel we sampled probably
represent less than 5% of the total amount of
sediment that passed at those points into the river.
Most of the finer sediment has been flushed deeper
into the river and carried downstream. Thus, even
under the conditions of modest rainfall over the past
two years, our field work demonstrated that
sediment eroded from the299ad has reached the river
in substantial amounts.
3.77 According to Dr. Kondolf, erosion along the R oad has been
“astronomically accelerated over background natural gully erosion rates,” and the
“lack of any planning, design, construction and maintenance standards for the
road is resulting in widespread erosion that is displacing tens of thousands of
cubic meters of soil ”. 300 Using chronic erosion rates published in the scientific
literature, including studies on road surface erosion rates in t ropical areas, Dr.
Kondolf and his team estimate that, in just the 41-kilometer stretch of the R oad
upstream from the confluence of the San Carlos River, surface erosion alone is
299
300Ibid., 4.11.
Ibid., Appendix B, Section 3.
103 3 301
producing some 17,800 to 21,300 m of displaced soil per year. In addition, erosion taking place along the R oad.
the “mass wasting” and gully erosion that has been taking place along the same 94,120 and 117,520 m
upper stretch of the Road as a result of Costa Rica’s im proper construction deposited into the San Juan River per yearas a result of Costa Rica’s Road.
practices and lack of corrective measures or maintenance is displacing between
218,400 and 273,000 m 3 of soil per year, according to conservative estimates. 302 capacity of 20 cubic meters.
3.78 Not all of this sediment makes its way into the San Juan River each loaded to capacity, to haul the approximately 100,000 m of sediments that
immediately. However, due to the unreasonably close proximity of the R oad to Costa Rica’s Road is causing to be delivered to the San Juan River on an annual
the River, the high percentage of its length that has been constructed across steep basis.
hillslopes, and the large number of stream crossings, “a significant portion of the
transported sediment” is delivered to the River . 303 In particular, based on the contribution compares to the volume of sediments which Nicaragua anticipates
foregoing factors, as well as his own field observations and those published in the being able to dredge from the Lower San Juan River through its current dredging
reports prepared by the University of Costa Rica’s National Laboratory and Costa program. As the Court is aware, before Costa Rica initiated its road construction
Rica’s Federation of Engineers and Architects, Dr. Kondolf estimated that 40% of activities, the problem of sedimentation in the San Juan River wa
the displaced soils being generated upstream from the confluenc e of the San acute that it forced Nicaragua to undertake a dredging program to restore
304
Carlos River reaches the San Juan River annually. That is, some 7,120 to navigability of the lower stretches of the
8,520 m 3 of sediments produced by surface erosion are making their way to the Court in August 2012, its current budget for the dredging project allows for the
3
River, and roughly ten times that amount – some 87,000 to 109,000 m per year – extraction of an estimated 395,395 m
are being transported into the River as a result of the mass wasting and gully San Juan.
basis, adding back into the River a quarter or more of the amount of sediment that
305
306
301
302Ibid., Sections 2.5 & 4.12. purchase here: http://www.alibaba.com/product
303Ibid., Section 4.12. 307OTRUK_HOWO.html (last accessed 30 November 2012).
Ibid., Appendix B, Section 3.
304Ibid., Section 4.12. Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) , para. 5.176.
104 3 301
producing some 17,800 to 21,300 m of displaced soil per year. In addition, erosion taking place along the R oad.
the “mass wasting” and gully erosion that has been taking place along the same 94,120 and 117,520 m
upper stretch of the Road as a result of Costa Rica’s im proper construction deposited into the San Juan River per yearas a result of Costa Rica’s Road.
practices and lack of corrective measures or maintenance is displacing between 3.79
218,400 and 273,000 m 3 of soil per year, according to conservative estimates. 302 capacity of 20 cubic meters.
3.78 Not all of this sediment makes its way into the San Juan River each loaded to capacity, to haul the approximately 100,000 m of sediments that
immediately. However, due to the unreasonably close proximity of the R oad to Costa Rica’s Road is causing to be delivered to the San Juan River on an annual
the River, the high percentage of its length that has been constructed across steep basis.
hillslopes, and the large number of stream crossings, “a significant portion of the 3.80
transported sediment” is delivered to the River . 303 In particular, based on the contribution compares to the volume of sediments which Nicaragua anticipates
foregoing factors, as well as his own field observations and those published in the being able to dredge from the Lower San Juan River through its current dredging
reports prepared by the University of Costa Rica’s National Laboratory and Costa program. As the Court is aware, before Costa Rica initiated its road construction
Rica’s Federation of Engineers and Architects, Dr. Kondolf estimated that 40% of activities, the problem of sedimentation in the San Juan River wa
the displaced soils being generated upstream from the confluenc e of the San acute that it forced Nicaragua to undertake a dredging program to restore
304
Carlos River reaches the San Juan River annually. That is, some 7,120 to navigability of the lower stretches of the
8,520 m 3 of sediments produced by surface erosion are making their way to the Court in August 2012, its current budget for the dredging project allows for the
3
River, and roughly ten times that amount – some 87,000 to 109,000 m per year – extraction of an estimated 395,395 m
are being transported into the River as a result of the mass wasting and gully San Juan.
basis, adding back into the River a quarter or more of the amount of sediment that
305Ibid., Section 4.12.
306
301 See, e.g., the specificati ons for the SINOTRUK HOWO 4x2 Dump Truck, available for
302Ibid., Sections 2.5 & 4.12. purchase here: http://www.alibaba.com/product
303Ibid., Section 4.12. 307OTRUK_HOWO.html (last accessed 30 November 2012).
Ibid., Appendix B, Section 3. Counter-Memorial of the Republic of Nicaragua in the
304Ibid., Section 4.12. Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) , para. 5.176. Nicaragua is trying to extract in order to ensure the navigability of the River, assessment, Costa Rica took none of these impacts into account prior to
frustrating Nicaragua’s efforts and forcing Nicaragua to re -dredge the same undertaking its road construction project.
stretch of the River over and over again to keep up with increased sediment loads
caused by Costa Rica. 308 And this is without taking into account Dr. Kondolf’s
calculation that “future erosion and sediment delivery during a tropical storm or
hurricane will likely be greater than the current sediment transfer by a factor of at the construction of roads in the vicinity of vulnerable watercourses dramatically
309 increases sediment transfer impacts.
least 10.”
3.81 As shown below , sediment contributions of even the current pre-existing natural drainage patterns, increasing storm runoff from a given
rainfall, and more importantly, concentrating surface runoff such that it is capable
magnitude are known to result in compromised water quality and damage to
of eroding gullies and transporting sediment and contaminants to the river
aquatic life. Thus, Costa Rica’s activities have not only exacerb ated existing
problems with navigability and increased the costs Nicaragua must incur to system.”
dredge the River, but have also harmed the River’s water quality and aquatic life,
Nicaragua’s fishing industry, and the Nicaraguan (and Costa Rican) nationals been “previously disturbed,” including for agricultural uses, or where smaller
roads are replaced by larger ones –as has occurred here in some stretches:
who rely on the River and its life -forms for sustenance and livelihood, as well as
transport and recreation. Having failed to conduct an environmental impact
308See, e.g., EPN, “Dredging Project Technical Evaluation Analysis 2011: Improving Navigation
on the San Juan River,” 23 January 2012, p. 2 ( Annex 17 to the Counter Memorial of Nicaragua
(NCM) in the Dispute Concerning Certain Activities Carried out by Nicaragua in the Border Area
(Costa Rica v. Nicaragua); INETER, “Summary of Measurements of Liquid and Suspended
Solids Content Du ring the Y ears 2006, 2011, 2012 ( Annex 16 to the Counter Memorial of
Nicaragua (NCM) in the Dispute Concerning Certain Activities Carried out by Nicaragua in the
Border Area (Costa Rica v. Nicaragua); see also Diario Extra , Costa Rica “Nicaragua requests
studies on the Soberania road”, 13 December 2011 (quoting Nicaraguan Vice Minister of Foreign
Affairs, Valdrak Jaentschke, who has explained thaCosta Rica’s road construction project has
caused “slopes to deteriorate which in turn leads to sedimentation in the San Juan River, affecting
[Nicaragua’s] dredging works, navigation, and altering the ecological balance of the species that 310
live in the River.”) (NM, Vol. II, Annex 23). 311
309Kondolf Report, Section 6 (emphasis added) (NM, Vol. II, Annex 1). 312
106Nicaragua is trying to extract in order to ensure the navigability of the River, assessment, Costa Rica took none of these impacts into account prior to
frustrating Nicaragua’s efforts and forcing Nicaragua to re -dredge the same undertaking its road construction project.
stretch of the River over and over again to keep up with increased sediment loads
caused by Costa Rica. 308 And this is without taking into account Dr. Kondolf’s
3.82
calculation that “future erosion and sediment delivery during a tropical storm or
hurricane will likely be greater than the current sediment transfer by a factor of at the construction of roads in the vicinity of vulnerable watercourses dramatically
309 increases sediment transfer impacts.
least 10.”
3.81 As shown below , sediment contributions of even the current pre-existing natural drainage patterns, increasing storm runoff from a given
rainfall, and more importantly, concentrating surface runoff such that it is capable
magnitude are known to result in compromised water quality and damage to
of eroding gullies and transporting sediment and contaminants to the river
aquatic life. Thus, Costa Rica’s activities have not only exacerb ated existing
problems with navigability and increased the costs Nicaragua must incur to system.”
3.83
dredge the River, but have also harmed the River’s water quality and aquatic life,
Nicaragua’s fishing industry, and the Nicaraguan (and Costa Rican) nationals been “previously disturbed,” including for agricultural uses, or where smaller
roads are replaced by larger ones –as has occurred here in some stretches:
who rely on the River and its life -forms for sustenance and livelihood, as well as
transport and recreation. Having failed to conduct an environmental impact
308See, e.g., EPN, “Dredging Project Technical Evaluation Analysis 2011: Improving Navigation
on the San Juan River,” 23 January 2012, p. 2 ( Annex 17 to the Counter Memorial of Nicaragua
(NCM) in the Dispute Concerning Certain Activities Carried out by Nicaragua in the Border Area
(Costa Rica v. Nicaragua); INETER, “Summary of Measurements of Liquid and Suspended
Solids Content Du ring the Y ears 2006, 2011, 2012 (Annex 16 to the Counter Memorial of
Nicaragua (NCM) in the Dispute Concerning Certain Activities Carried out by Nicaragua in the
Border Area (Costa Rica v. Nicaragua); see also Diario Extra , Costa Rica “Nicaragua requests
studies on the Soberania road”, 13 December 2011 (quoting Nicaraguan Vice Minister of Foreign
Affairs, Valdrak Jaentschke, who has explained thaCosta Rica’s road construction project has
caused “slopes to deteriorate which in turn leads to sedimentation in the San Juan River, affecting
[Nicaragua’s] dredging works, navigation, and altering the ecological balance of the species that 310Ibid., Section 3; see also Kondolf Report, Appendix C: Detailed Literature Review.
live in the River.”) (NM, Vol. II, Annex 23). 311Ibid., Section 3.1.5.
309Kondolf Report, Section 6 (emphasis added) (NM, Vol. II, Annex 1). 312Ibid., Section 3.1.1. 3.84 Importantly, “[u]npaved roads are prone to high, chronic erosion many rivers such that aquatic habitats are still degraded and cannot support fish
from surface runoff, and the concentrated surface runoff from the road can cause and other species as formerly.”
gullies and other downstream impacts in virtually any topographic setting.” 313
These impacts are magnified when the unpaved road has been built, as here, in destructive practices that Costa Rica employed in its construction of the Road at
rugged terrain: issue in this case – were prohibited in California by the Forest Practice Act of
Roads cut across steep hillslopes concentrate runoff 1974, in other North American st ates by comparable legislation , and by the
even more by virtue of the steep slopes, and if
runoff down roads and adjacent ditches is not federal U.S. Government for all publicly owned forest lands in the United
frequently diverted and spread to infiltrate, the
effect of gullying and road surface erosion is States.
exaggerated with the steep topography. More
importantly, the cut and fill required to put the road road without detailed plans, build on steep hillsides , cut excessively steep slopes,
across a slope has the potential to induce landslide
failure of the cut banks and failure of [fills]. In sidecast fill, leave fill uncompacted, discharge water and sediment directly into
essence, the entire volume of material moved to
make the road becomes vuln314ble to mass wasting streams, install non -standard stream-crossing materials, or a llow ad hoc earthen
and particulate erosion.
stream crossings to erode.
3.85 These impacts are inevitable, as prior cases demonstrate, when
roads are constructed in the same manner as Costa Rica’s Road, in close
serious damage to the environment, including to rivers and their aquatic life.
proximity to watercourses like the San Juan River. The same problematic
That damage has been well documented, as has the decades of
construction practices that Costa Rica used in building its Road “were
required to remediate the environmental harm caused by the improper
commonplace in the Pacific Northwest of North America in the 1950s and 1960s,
315 construction of roads in close proximity to rivers. There is a wealth of scientific
and they created a legacy of problems that persist to this day”. These problems
literature documenting past experiences with precisely the sorts of inappropriate
include “fish populations that have never recovered their pre -disturbance levels,
road construction activities that Costa Rica has undertaken in this case. As
continued slope instability in many sites, excessive sediment supply persisting in
Dr. Kondolf observes in his report: “Constructing a road such as this has well
313Ibid., Section 3.1.1. 316
314Ibid., Section 3.1.5. 317
315Ibid., Section 4.5. 318
108 3.84 Importantly, “[u]npaved roads are prone to high, chronic erosion many rivers such that aquatic habitats are still degraded and cannot support fish
from surface runoff, and the concentrated surface runoff from the road can cause and other species as formerly.”
gullies and other downstream impacts in virtually any topographic setting.” 313 3.86
These impacts are magnified when the unpaved road has been built, as here, in destructive practices that Costa Rica employed in its construction of the Road at
rugged terrain: issue in this case – were prohibited in California by the Forest Practice Act of
Roads cut across steep hillslopes concentrate runoff 1974, in other North American st ates by comparable legislation , and by the
even more by virtue of the steep slopes, and if
runoff down roads and adjacent ditches is not federal U.S. Government for all publicly owned forest lands in the United
frequently diverted and spread to infiltrate, the
effect of gullying and road surface erosion is States. 317
exaggerated with the steep topography. More
importantly, the cut and fill required to put the road road without detailed plans, build on steep hillsides , cut excessively steep slopes,
across a slope has the potential to induce landslide
failure of the cut banks and failure of [fills]. In sidecast fill, leave fill uncompacted, discharge water and sediment directly into
essence, the entire volume of material moved to
make the road becomes vuln314ble to mass wasting streams, install non -standard stream-crossing materials, or a llow ad hoc earthen
and particulate erosion.
stream crossings to erode.
3.85 These impacts are inevitable, as prior cases demonstrate, when
3.87
roads are constructed in the same manner as Costa Rica’s Road, in close
serious damage to the environment, including to rivers and their aquatic life.
proximity to watercourses like the San Juan River. The same problematic
That damage has been well documented, as has the decades of
construction practices that Costa Rica used in building its Road “were
required to remediate the environmental harm caused by the improper
commonplace in the Pacific Northwest of North America in the 1950s and 1960s,
315 construction of roads in close proximity to rivers. There is a wealth of scientific
and they created a legacy of problems that persist to this day”. These problems
literature documenting past experiences with precisely the sorts of inappropriate
include “fish populations that have never recovered their pre -disturbance levels,
road construction activities that Costa Rica has undertaken in this case. As
continued slope instability in many sites, excessive sediment supply persisting in
Dr. Kondolf observes in his report: “Constructing a road such as this has well
313Ibid., Section 3.1.1. 316Ibid., Section 4.5.
314Ibid., Section 3.1.5. 317Ibid., Sections 4.5 & 4.10.
315Ibid., Section 4.5. 318Ibid., Section 4.10. documented environmental effects, especially where roads are constructed in
steep terrain and through weak geological materials,” 319 as Costa Rica has done.
3.88 Of particular relevance for this case, the delivery of substantial
volumes of sediment to rivers has been documented to cause significant
ecological damage. There are many documented examples of habitats within
waterbodies being “buried in fine sediment such that fish and other aquatic gravel and sand) into nearby watercourses, which move through the environment
organisms are unable to reproduce, feed, or find cover, leading to the loss of differently than fine sediment s and tend to affect river sy
formerly productive fisheries.” 320 Dr. Kondolf cited the example of sediment including their “stability, e cosystems, and water quality” – by decreasing water
releases from the construction of a road in Bolivia, which severely impacted a depth and channel capacity. Such impacts, which already plague the Lower San
Juan River, cause “channel destabilization as flow is displaced from sediment
tropical, humid-climate river, whose aquatic ecosystem was decimated in terms of
both the abundance and diversity of its invertebrates. 321 This is not surprising to choked channels toward the banks,” and – as Nicaragua has already experienced
experts in the field, who are w ell aware that increased fine sediment in rivers – decreased navigability of the watercourse.
causes “increased turbidity, reduced light penetration, and consequently, reduced sediments, like fine sediments, also causes the burial of important aquatic habitats
322
primary productivity, which can have effects up the food chain.” Fine and the consequent loss of native species, “impacts that have been documented to
sediments (e.g., silt and clay) also cause, inter alia: persist for decades.”
• Clogging of gravel and sand beds, reducing the exchange of stream
and shallow groundwater, altering natural water pathways and quality;
globe, including Asia, Europe, Australia, and Latin America, and in a wide range
• Infiltration of fine sediments into formerly clean gravel beds, which
of climates from northern
are needed by aquatic macro -invertebrates, juvenile fish, and other
organisms for their habitat; environmental impacts of road-induced sedimentation of watercourses have been
319Ibid., Section 3.1. 323
320Ibid., Section 3.1.4 (internal citations omitted). 324
321Ibid., Section 3.1.4, citing Fossati et al. (2001). 325
322Ibid., Section 3.1.4. 326
110documented environmental effects, especially where roads are constructed in •
steep terrain and through weak geological materials,” 319as Costa Rica has done.
3.88 Of particular relevance for this case, the delivery of substantial
•
volumes of sediment to rivers has been documented to cause significant
ecological damage. There are many documented examples of habitats within 3.89
waterbodies being “buried in fine sediment such that fish and other aquatic gravel and sand) into nearby watercourses, which move through the environment
organisms are unable to reproduce, feed, or find cover, leading to the loss of differently than fine sediment s and tend to affect river sy
formerly productive fisheries.” 320 Dr. Kondolf cited the example of sediment including their “stability, e cosystems, and water quality” – by decreasing water
releases from the construction of a road in Bolivia, which severely impacted a depth and channel capacity. Such impacts, which already plague the Lower San
Juan River, cause “channel destabilization as flow is displaced from sediment
tropical, humid-climate river, whose aquatic ecosystem was decimated in terms of
both the abundance and diversity of its invertebrates. 321 This is not surprising to choked channels toward the banks,” and – as Nicaragua has already experienced
experts in the field, who are w ell aware that increased fine sediment in rivers – decreased navigability of the watercourse.
causes “increased turbidity, reduced light penetration, and consequently, reduced sediments, like fine sediments, also causes the burial of important aquatic habitats
322
primary productivity, which can have effects up the food chain.” Fine and the consequent loss of native species, “impacts that have been documented to
sediments (e.g., silt and clay) also cause, inter alia: persist for decades.”
• Clogging of gravel and sand beds, reducing the exchange of stream 3.90
and shallow groundwater, altering natural water pathways and quality;
globe, including Asia, Europe, Australia, and Latin America, and in a wide range
• Infiltration of fine sediments into formerly clean gravel beds, which
of climates from northern
are needed by aquatic macro -invertebrates, juvenile fish, and other
organisms for their habitat; environmental impacts of road-induced sedimentation of watercourses have been
319Ibid., Section 3.1. 323Ibid., Section 3.1.4.
320Ibid., Section 3.1.4 (internal citations omitted). 324Ibid., Section 3.1.4.
321Ibid., Section 3.1.4, citing Fossati et al. (2001). 325Ibid., Section 3.1.4. (internal citations omitted).
322Ibid., Section 3.1.4. 326Ibid., Section 3.1.4. especially well -documented in North America, in the forests of the Pacific loads,” as described in the detailed literature review presented as Appendix C to
Northwest (California, Oregon and Washington), where logging roads were Dr. Kondolf’s report.
constructed through forested areas rich in watercourses during the mid -1900s
“using exactly the sam e practices” as those used by Costa Rica in the present combination of hydrologic effects and increased erosion that results
327
case. As Professor Kondolf explained: “significant increases of sediment loading to rivers and streams, which in turn
For example, roads built with similar have been documented to cause a range of serious environmental problems,”
problems to Route 1856 constructed to cut
timber in the Quinault River basin, including but not limited to “the loss of aquatic vegetation, macroinvertebrates,
Washington, were identified as key sources
of erosion and sediment to the river, and valued fish species, as well as degraded water quality,” all of which have
resulting in a near-complete destruction of a
sockeye salmon run that formerly numbered been documented across the globe in a wide range of ecosystems.
a million adult fish annually, and which has
still not recovered after over four decades in
which such practices have been outlawed
and numerou328estoration projects haphazard road works, and lack of any environmental impact assessment, would
attempted.
harm the San Juan River and its ecosystem. This is particularly true given the
3.91 Similar impacts to salmon populations were felt in the Clearwater
inappropriate location of much of the Road through steep terrain right next to the
River catchment, also in Washington state, where road-related landslides, sidecast
River. As Dr. Kondolf explained, two of the “most effective professionally
erosion, gullies, and debris -flows – all present in this case – delivered massive
accepted standards to minimize the potential for water quality and habitat impacts
amounts of sediment into the river, causing a “severe impact to spawning salmon
associated with roads” are:
populations.” 329 Redwood National Park in northern California, which is home to
the tallest trees in the world, “is still recovering from the effects of high sediment
327Ibid., Section 3.1.4. 330
328Ibid., Section 3.1.4. 331
329Ibid., Section 3.1.4. 332
112especially well -documented in North America, in the forests of the Pacific loads,” as described in the detailed literature review presented as Appendix C to
Northwest (California, Oregon and Washington), where logging roads were Dr. Kondolf’s report.
constructed through forested areas rich in watercourses during the mid -1900s 3.92
“using exactly the sam e practices” as those used by Costa Rica in the present combination of hydrologic effects and increased erosion that results
327
case. As Professor Kondolf explained: “significant increases of sediment loading to rivers and streams, which in turn
For example, roads built with similar have been documented to cause a range of serious environmental problems,”
problems to Route 1856 constructed to cut
timber in the Quinault River basin, including but not limited to “the loss of aquatic vegetation, macroinvertebrates,
Washington, were identified as key sources
of erosion and sediment to the river, and valued fish species, as well as degraded water quality,” all of which have
resulting in a near-complete destruction of a
sockeye salmon run that formerly numbered been documented across the globe in a wide range of ecosystems.
a million adult fish annually, and which has
still not recovered after over four decades in 3.93
which such practices have been outlawed
and numerous328storation projects haphazard road works, and lack of any environmental impact assessment, would
attempted.
harm the San Juan River and its ecosystem. This is particularly true given the
3.91 Similar impacts to salmon populations were felt in the Clearwater
inappropriate location of much of the Road through steep terrain right next to the
River catchment, also in Washington state, where road-related landslides, sidecast
River. As Dr. Kondolf explained, two of the “most effective professionally
erosion, gullies, and debris -flows – all present in this case – delivered massive
accepted standards to minimize the potential for water quality and habitat impacts
amounts of sediment into the river, causing a “severe impact to spawning salmon
associated with roads” are:
populations.” 329 Redwood National Park in northern California, which is home to
the tallest trees in the world, “is still recovering from the effects of high sediment
327Ibid., Section 3.1.4. 330Ibid., Section 3.1.4.
328Ibid., Section 3.1.4. 331Ibid., Sections 3.1.4 & 3.1.5.
329Ibid., Section 3.1.4. 332Ibid., Appendix B, Section 7. body increases the likelihood that sediment from
the road will reach the water body.” 333
Costa Rica has, quite simply, demonstrated a “total disregard for [both of] these
widely accepted principles.” 334
STABILIZATION AND EROSION CONTROL MEASURES TO
3 . Required Remediation Measures
PREVENT CONTINUING AND FUTURE IMPACTS TO THE RÍO SAN
3.94 Dr. Kondolf and his team of experts found that “ [i]mmediate JUAN,”
emergency actions are needed to curtail ongoing and future sediment delivery to
described below, in the experts’ own words:
the Rio San Juan” in light of the “erosional impacts” that have already occurred,
335
which they characterized as “extraordinary in scale.” They attributed these
impacts to “inadequate planning (location), design, construction and maintenance
practices,” along almost all the “road reaches and stream cross ings” of Costa
Rica’s Road:
Based on our extensive experience in controlling
and normalizing wildland road erosion processes to
protect water quality on both public and private
road systems, we recommend the following
mitigation and emergency erosion/sediment control
measures be undertaken immediately. The
measures include those designed to mitigate and
prevent damage from 1) fillslope instability and
mass wasting, 2) stream crossing erosion and
failure, 3) surface erosion from road surfaces, and
4) erosio n and gullying from cutbanks, fillslopes
and other bare soil areas. These measures are those
that are required, at a minimum, to control ongoing
impacts and reduce the risk of future sediment
delivery to the Río San Juan from the existing road
work. Their implementation should be overseen by
333
334bid., Section 4.2. 336
335bid., Appendix B. 337
Ibid., Section 5.1.
114 body increases the likelihood that sediment from
the road will reach the water body.” 333
Costa Rica has, quite simply, demonstrated a “total disregard for [both of] these
3.95
widely accepted principles.” 334
STABILIZATION AND EROSION CONTROL MEASURES TO
3 . Required Remediation Measures
PREVENT CONTINUING AND FUTURE IMPACTS TO THE RÍO SAN
3.94 Dr. Kondolf and his team of experts found that “ [i]mmediate JUAN,”
emergency actions are needed to curtail ongoing and future sediment delivery to
described below, in the experts’ own words:
the Rio San Juan” in light of the “erosional impacts” that have already occurred,
335
which they characterized as “extraordinary in scale.” They attributed these
impacts to “inadequate planning (location), design, construction and maintenance
practices,” along almost all the “road reaches and stream cross ings” of Costa
Rica’s Road:
Based on our extensive experience in controlling
and normalizing wildland road erosion processes to
protect water quality on both public and private
road systems, we recommend the following
mitigation and emergency erosion/sediment control
measures be undertaken immediately. The
measures include those designed to mitigate and
prevent damage from 1) fillslope instability and
mass wasting, 2) stream crossing erosion and
failure, 3) surface erosion from road surfaces, and
4) erosio n and gullying from cutbanks, fillslopes
and other bare soil areas. These measures are those
that are required, at a minimum, to control ongoing
impacts and reduce the risk of future sediment
delivery to the Río San Juan from the existing road
work. Their implementation should be overseen by
333
334Ibid., Section 4.2. 336
335Ibid., Appendix B. 337Kondolf Report, Section 5.1 (NM, Vol. II, Annex 1).
Ibid., Section 5.1. Ibid., Section 5. control, are not acceptable methods for
controlling mass wasting processes.
D. Once the unstable fills have been excavated and
removed, the road will largely consist of a full
bench road bed with little or no part of the
remaining road constructed on potentially
unstable fill material. If road widths are
insufficient to accommodate the expected traffic
in these treated reaches, either the cut portion of
the road can be moved farther into the hillslope
(provided the earth materials are stable) or a
well designed and constructed engineered fill
can be built along the outside of the road. The
structural fill should be designed by a qualified
engineer who s338ld also be present during
construction.
Task 2: Eliminate or significantly reduce the
risk of future erosion and sediment delivery at
all stream crossingsalong Route 1856.
A. As soon as weather and soil conditions permit,
mobilize heavy earthmoving equipment to
stabilize failing stream crossings by excavating
all unstable or potentially unstable, poorly
compacted and over-steepened fills at all road -
stream crossings.
B. As soon as weather and soil conditions permit,
mobilize heavy earthmoving equipment to
stabilize failing or potentially unstable road fills
on the immediate road approaches to stream
crossings by excavating all unstable or
potentially unstable, poorly compacted and
over-steepened fills.
C. Endhaul the excavated spoil materials to stable
spoil disposal locations where the soils will not
be eroded and delivered to the Río San Juan or
its tributaries.
338Ibid., Section 5.2. 339
116 control, are not acceptable methods for
controlling mass wasting processes.
D. Once the unstable fills have been excavated and
removed, the road will largely consist of a full
bench road bed with little or no part of the
remaining road constructed on potentially
unstable fill material. If road widths are
insufficient to accommodate the expected traffic
in these treated reaches, either the cut portion of
the road can be moved farther into the hillslope
(provided the earth materials are stable) or a
well designed and constructed engineered fill
can be built along the outside of the road. The
structural fill should be designed by a qualified
engineer who s338ld also be present during
construction.
Task 2: Eliminate or significantly reduce the
risk of future erosion and sediment delivery at
all stream crossingsalong Route 1856.
A. As soon as weather and soil conditions permit,
mobilize heavy earthmoving equipment to
stabilize failing stream crossings by excavating
all unstable or potentially unstable, poorly
compacted and over-steepened fills at all road -
stream crossings.
B. As soon as weather and soil conditions permit,
mobilize heavy earthmoving equipment to
stabilize failing or potentially unstable road fills
on the immediate road approaches to stream
crossings by excavating all unstable or
potentially unstable, poorly compacted and
over-steepened fills.
C. Endhaul the excavated spoil materials to stable
spoil disposal locations where the soils will not
be eroded and delivered to the Río San Juan or
its tributaries.
338Ibid., Section 5.2. 33Ibid., Section 5.3. 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. This measure will address gully
erosion and hydrologically connected road
segments that are currently delivering sediment to
the Río San Juan and its tributaries.
A. As weather and soil conditions permit, and after
excavating all the fillslopes exhibiting
instabilities referenced in Recommendation #1
(above) along Route 1856, immediately
construct tempor ary rolling dips, cross road
drains and/or waterbars at average 15 meter
intervals (or more frequently) to drain road
surface runoff to the outside edge of the road.
B. Construct surface drainage structures at close
enough intervals so they will not result i n new
gully formation capable of transporting eroded
sediment to the Río San Juan or its tributaries.
Some erosion of the road fillslopes can be
expected, but sediment should be deposited on
the native hillslope beyond the base of the fill
and not transpor ted to the river or a stream.
Culvert down drains can be constructed to carry
road surface runoff down the fillslope wherever
the road is too close to the river to prevent
sediment delivery.
C. Ensure that every drain or waterbar is
constructed at a slightly steeper slope
angle/gradient than the existing road gradient
where the drain is constructed, so that they will
be self-flushing and self-maintaining.
D. Ditches should be drained under the road using
ditch relief culverts installed at sufficient
intervals to prevent gullying of the fillslope or
the natural hillside where they discharge.
E. Ditch drains and road surface drains should be
placed close to each road approach to tributary 340
stream crossings so as to divert surface runoff 341
118Task 3: Immediately reduce road surface onto adjacent natural, undisturbed (vegetated)
erosion and sediment delivery by improving hillslopes, and thereby prevent or minimize
dispersion of concentrated road runoff and road surface runoff delivery to streams that flow
increasing the number and frequency of road into the Río San Juan.
drainage structures. This measure will address gully F. Maintain all surface drainage structures and
erosion and hydrologically connected road ditch drains so they continue to function as
segments that are currently delivering sediment to
the Río San Juan and its tributaries. intended and so eroded sediment i
discharged to the Río San Juan or its tributaries.
A. As weather and soil conditions permit, and after If drainage structures are damaged by traffic or
excavating all the fillslopes exhibiting equipment, they should be rebuilt immediately,
instabilities referenced in Recommendation #1 and before the next rainfall and runoff event.
(above) along Route 1856, immediately
construct tempor ary rolling dips, cross road Task 4: Control surface erosion and resultant
drains and/or waterbars at average 15 meter sediment delivery from bare soil areas that were
intervals (or more frequently) to drain road exposed during clearing, grubbing and construction
surface runoff to the outside edge of the road. activities in the last several years.
B. Construct surface drainage structures at close A. Concurrent with the completion of the
enough intervals so they will not result i n new excavation and road drainage improvements in
gully formation capable of transporting eroded recommendations outlined in #1, #2 and #3
above, seed and mulch all bare soil areas with
sediment to the Río San Juan or its tributaries.
Some erosion of the road fillslopes can be any potential for sediment delivery to nearby
expected, but sediment should be deposited on streams/wetlands with straw mulch at a rate of
the native hillslope beyond the base of the fill 4,485 kg/ha and native seed at a rate of 56
and not transpor ted to the river or a stream. kg/ha. If mulches other than wheat or rice straw
Culvert down drains can be constructed to carry are employed, ground coverage should be at
least 95%.
road surface runoff down the fillslope wherever
the road is too close to the river to prevent B. Cutbanks with slopes steeper than 50% will
sediment delivery. likely require the combined use of seeding,
C. Ensure that every drain or waterbar is mulching and installation of rolled erosion
constructed at a slightly steeper slope control fabrics, stapled to the slope, to control
angle/gradient than the existing road gradient surface erosion.
where the drain is constructed, so that they will
be self-flushing and self-maintaining. C. Inspect, re-treat and maintain all erosion control
measures so they continue to function as
D. Ditches should be drained under the road using intended and they prevent sediment delivery to
ditch relief culverts installed at sufficient the Río San Juan and its tributaries.
intervals to prevent gullying of the fillslope or
the natural hillside where they discharge.
E. Ditch drains and road surface drains should be
placed close to each road approach to tributary 340
stream crossings so as to divert surface runoff 341Ibid., Section 5.4.
Ibid., Section 5.5. 3.96 The foregoing are just the “temporary, emergency measures” that
must be “implemented to control erosion, mass wasting and sediment delivery to
342
the Río San Juan and its tributaries.” In other words, these measures are
simply triage, intended to staunch the bleeding from the “patient’s” open wounds.
The treatment recommended by Dr. Kondolf and his team also include measures
to bring about the River’s full recovery and maintain its long-term health:
[W]e strongly recommend that qualified engineers
and geologists evaluate the location, design, and
construction measures that wer e employed… as
well as those that are planned for any future
earthmoving activities. Protective road design and
construction standards, and Best Management of what the experts recommend – will serve Costa Rica’s interests as well as
Practices for new and reconstructed roads, should
have been employed in the construction work that
has occurred to date. It is clear that most of these Nicaragua’s:
measures were not followed, and the resulting high
rates of mass wasting and gully erosion on steeper
areas reflect this shortcoming. In addition to the
emergency erosion and sediment control measures
detailed above, it is imperative that any new or
continued construction work on the Route 1856
needs to follow more formal, protective planning,
design and construction BMPs if they are to avoid
additional damage to the Río San Juan. 343
3.97 In particular:
Portions of Route 1856 that have already undergone
some measure of construction, and are currently
exhibiting severe erosion rates or slope instabilities,
will need to be completely reconstructed or
realigned to more favorable locations. Ideally, any
road in this g eneral vicinity should be aligned
farther inland, so as to take advantage of favorable
342 344
343Ibid., Section 5.6. 345
Ibid., Section 5.6.
120 3.96 The foregoing are just the “temporary, emergency measures” that
must be “implemented to control erosion, mass wasting and sediment delivery to
342
the Río San Juan and its tributaries.” In other words, these measures are
simply triage, intended to staunch the bleeding from the “patient’s” open wounds.
The treatment recommended by Dr. Kondolf and his team also include measures
to bring about the River’s full recovery and maintain its long-term health:
[W]e strongly recommend that qualified engineers
and geologists evaluate the location, design, and
construction measures that wer e employed… as
well as those that are planned for any future
earthmoving activities. Protective road design and 3.98
construction standards, and Best Management of what the experts recommend – will serve Costa Rica’s interests as well as
Practices for new and reconstructed roads, should
have been employed in the construction work that
has occurred to date. It is clear that most of these Nicaragua’s:
measures were not followed, and the resulting high
rates of mass wasting and gully erosion on steeper
areas reflect this shortcoming. In addition to the
emergency erosion and sediment control measures
detailed above, it is imperative that any new or
continued construction work on the Route 1856
needs to follow more formal, protective planning,
design and construction BMPs if they are to avoid
additional damage to the Río San Juan. 343
3.97 In particular:
Portions of Route 1856 that have already undergone
some measure of construction, and are currently
exhibiting severe erosion rates or slope instabilities,
will need to be completely reconstructed or
realigned to more favorable locations. Ideally, any
road in this g eneral vicinity should be aligned
farther inland, so as to take advantage of favorable
342 344
343Ibid., Section 5.6. 345bid., Section 5.6.
Ibid., Section 5.6. Ibid. tourism potential of the San Juan River, the construction of
Mora Porras - Route 1856, which involves more than 900 pieces of machinery
operated by at least 35 constructi on companies,
into the River of substantial volumes of sediments and debris
vegetation, and felled trees – produced by the clearing and levelling of land for the
road bed. Furthermore, the felling of trees and
vegetation close to the bank of the San Juan River is facilitating land collapse and
both erosion and runoff during rains, which are leading to the transfer of even
greater amounts of sediments into the River.
matters of environment as will be shown in the next Chapter of this Memorial; it
also infringes its obligations resulting from the 1858 Treaty of Limits as
interpreted by successive arbitral and judicial decisions, which recognizes
346
oversight”, 11 June 2012 (Annex 111 to the Counter Memorial of Nicaragua (NCM) in the Dispute
Concerning Certain Activities Carried out by Nicaragua in the Border Area
Nicaragua) and La Nación, Costa Rica, “CONAVI Built a Dirt Road along the Border without a
Single Design Plan”, 23 May 2012 (NM, Vol. II, Annex 31).
347
activities, see respectively Chapters 3 and 5.
122 CHAPTER 4
BREACHES OF THE LEGAL REGIME OF THE SAN JUAN
DE NICARAGUA RIVER
4.1. In addition to causing substantial harm to the scenic value and eco -
tourism potential of the San Juan River, the construction of Route Juan Rafael
Mora Porras - Route 1856, which involves more than 900 pieces of machinery
operated by at least 35 constructi on companies, 346have resulted in the dumping
into the River of substantial volumes of sediments and debris – soil, uprooted
vegetation, and felled trees – produced by the clearing and levelling of land for the
road bed. Furthermore, the felling of trees and the removal of topsoil and
vegetation close to the bank of the San Juan River is facilitating land collapse and
both erosion and runoff during rains, which are leading to the transfer of even
greater amounts of sediments into the River. 347
4.2. In so doing, Cost a Rica seriously breaches its obligations in
matters of environment as will be shown in the next Chapter of this Memorial; it
also infringes its obligations resulting from the 1858 Treaty of Limits as
interpreted by successive arbitral and judicial decisions, which recognizes
346Crhoy.com, Costa Rica “Path construction supervisors informed problems and the lack of
oversight”, 11 June 2012 (Annex 111 to the Counter Memorial of Nicaragua (NCM) in the Dispute
Concerning Certain Activities Carried out by Nicaragua in the Border Are(Costa Rica v.
Nicaragua) and La Nación, Costa Rica, “CONAVI Built a Dirt Road along the Border without a
Single Design Plan”, 23 May 2012 (NM, Vol. II, Annex 31).
347For a detailed presentation of the facts and of the harms caused to Nicaragua by Costa Rica’s
activities, see respectively Chapters 3 and 5.
123 Nicaragua’s sovereignty over th e San Juan River (A.) as well as various well
established principles of general international law (B.).
A . BREACHES OF THE 1858 TREATY AND ITS SUCCESSIVE
ARBITRAL AND JUDICIAL INTERPRETATIONS
4.3. The legal regime of the San Juan River lies on the Jerez-Cañas
Treaty of Limits concluded between Nicaragua and Costa Rica on 15 April
348
1858. Since the Court is already familiar with th is legal regime, the relevant
aspects of the 1858 Treaty of Limits and its successive arbitral and judicial
interpretations will only be concisely (1.) recalled before establishing that the
construction of the Road breaches Nicaragua’s sovereignty over the San Juan de
Nicaragua River as established by the Treaty (2.).
questioned by Nicaragua, led to the conclusion of the Roman
1 . The 1858 Treaty of Limits and its Arbitral Interpretations Convention of 24 December 1886,
matter to the US President Cleveland for arbitration. The first part of the Arbitral
4.4. The 1858 Treaty of Limits is a comprehensive settlement of the
Award rendered on 22 March 1888
long-standing dispute involving the boundary between the two countries. In the
established this, the Arbitrator continued deciding on
case concerning the Dispute regarding navigational and related rights , the Court
interpretation that were submitted for his consideration.
summarized the content of the 1858 Treaty as follows:
349
“The 1858 Treaty of Limits fixed the course of the Rica v. Nicaragua), I.C.J. Reports 2009, p. 229, para. 19.
boundary between Costa Rica and Nicaragua from 350
the Pacific Ocean to the Caribbean Sea. According Rica (CRM) in the Dispute Concerning Certain Activities Carried out by Nicaragua in the Border
Area (Costa Rica v. Nicaragua).
351
348
Treaty of Limits between Costa Rica and Nicaragua, 15 April 1858 (NM, Vol. II, Annex 5). Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)).
124Nicaragua’s sovereignty over th e San Juan River (A.) as well as various well
established principles of general international law (B.).
A . BREACHES OF THE 1858 TREATY AND ITS SUCCESSIVE
ARBITRAL AND JUDICIAL INTERPRETATIONS
4.3. The legal regime of the San Juan River lies on the Jerez-Cañas
Treaty of Limits concluded between Nicaragua and Costa Rica on 15 April
348
1858. Since the Court is already familiar with th is legal regime, the relevant
aspects of the 1858 Treaty of Limits and its successive arbitral and judicial
interpretations will only be concisely (1.) recalled before establishing that the
construction of the Road breaches Nicaragua’s sovereignty over the San Juan de
4.5.
Nicaragua River as established by the Treaty (2.).
questioned by Nicaragua, led to the conclusion of the Roman
1 . The 1858 Treaty of Limits and its Arbitral Interpretations Convention of 24 December 1886,
matter to the US President Cleveland for arbitration. The first part of the Arbitral
4.4. The 1858 Treaty of Limits is a comprehensive settlement of the
Award rendered on 22 March 1888
long-standing dispute involving the boundary between the two countries. In the
established this, the Arbitrator continued deciding on
case concerning the Dispute regarding navigational and related rights , the Court
interpretation that were submitted for his consideration.
summarized the content of the 1858 Treaty as follows:
34I.C.J., Judgement, 13 July 2009,
“The 1858 Treaty of Limits fixed the course of the Rica v. Nicaragua), I.C.J. Reports 2009, p. 229, para. 19.
boundary between Costa Rica and Nicaragua from 35Roman-Esquivel-Cruz Convention of 24 December 1886
the Pacific Ocean to the Caribbean Sea. According Rica (CRM) in the Dispute Concerning Certain Activities Carried out by Nicaragua in the Border
Area (Costa Rica v. Nicaragua).
35(Annex 7 to the Memorial of Costa Rica (CRM) in the
348
Treaty of Limits between Costa Rica and Nicaragua, 15 April 1858 (NM, Vol. II, Annex 5). Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)). 4.6. In order to demarcate this boundary line, the Parties concluded, on
27 March 1896, the C onvention on Border Demarcation. 352 The Convention
provided for the appointment by the parties of Commissions charged with
“defining and marking out” the boundary (Art. I) and the appointment by the
President of the United States of an engineer t asked with resolving disputes
between the Commissions and demarcating the border line (Arts. II and III) . The
U.S. President appointed as Engineer -Umpire General Edward Porter Alexander,
reading of Article VI” of the Treaty “shows that”:
who rendered a total of five awards concerning the location of the boundary.
4.7. The main points, as far as the present dispute is concerned, are
contained in Articles II and VI of the 1858 Treaty. According to the former:
Therefore, as far as Costa Rica has breached its obligations regarding the San Juan
“The dividing line between the two Republics,
River and prejudiced Nicaragua’s sovereign prerogatives on the River, it has lost
starting from the Northern Sea, shall begin at the
end of P unta de Castilla, at the mouth of the San
Juan de Nicaragua river, and shall run along the its right of free navigation.
right bank of the said river up to a point three
English miles distant from Castillo Viejo, said
distance to be measured between the exterior works
of said castle and the above-named point.” the River San Juan, including in environmental matters,
Nicaraguan sovereignty over the River as recognized in Article VI of the
As a consequence of the establishment of the boundary on the right (Costa Rican)
Treaty.
bank of the river, Article VI provides that:
right of free navigation, and in respect of other parts of the river, which are not
“The Republic of Nicaragua shall have exclusively
the dominion and sovereign jurisdiction over the 353
waters of the San Juan River from its origin in the Norte, Nicaragua, RIAA, vol. XXVIII, p. 217 (NM, Vol. II, Annex 6 (2)).
Lake to its mouth in the Atlantic.” 354
Rica v. Nicaragua), I.C.J. Reports 2009, p. 237, para. 48.
355
352(Annex 8 to the Memorial of Costa Rica (CRM) in the Dispute concerning Certain Activities 356
Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)). (Costa Rica v. Nicaragua), I.C.J. Reports 2009, p. 250, para. 88. See Chapter 4, below.
357
126 4.6. In order to demarcate this boundary line, the Parties concluded, on 4.8.
27 March 1896, the C onvention on Border Demarcation. 352 The Convention
provided for the appointment by the parties of Commissions charged with
“defining and marking out” the boundary (Art. I) and the appointment by the
President of the United States of an engineer t asked with resolving disputes
between the Commissions and demarcating the border line (Arts. II and III) . The
4.9.
U.S. President appointed as Engineer -Umpire General Edward Porter Alexander,
reading of Article VI” of the Treaty “shows that”:
who rendered a total of five awards concerning the location of the boundary.
4.7. The main points, as far as the present dispute is concerned, are
contained in Articles II and VI of the 1858 Treaty. According to the former:
Therefore, as far as Costa Rica has breached its obligations regarding the San Juan
“The dividing line between the two Republics,
River and prejudiced Nicaragua’s sovereign prerogatives on the River, it has lost
starting from the Northern Sea, shall begin at the
end of P unta de Castilla, at the mouth of the San
Juan de Nicaragua river, and shall run along the its right of free navigation.
right bank of the said river up to a point three
4.10. An extended right of regulating activities on and in relation with
English miles distant from Castillo Viejo, said
distance to be measured between the exterior works
of said castle and the above-named point.” the River San Juan, including in environmental matters,
Nicaraguan sovereignty over the River as recognized in Article VI of the
As a consequence of the establishment of the boundary on the right (Costa Rican) 357
Treaty.
bank of the river, Article VI provides that:
right of free navigation, and in respect of other parts of the river, which are not
“The Republic of Nicaragua shall have exclusively
the dominion and sovereign jurisdiction over the 353
First Award by the Umpire E.P. Alexander rendered on 30 September 1897
waters of the San Juan River from its origin in the Norte, Nicaragua, RIAA, vol. XXVIII, p. 217 (NM, Vol. II, Annex 6 (2)).
Lake to its mouth in the Atlantic.” 354I.C.J., Judgement, 13 July 2009,
Rica v. Nicaragua), I.C.J. Reports 2009, p. 237, para. 48.
355See paras. 6.35-6.45 below.
352(Annex 8 to the Memorial of Costa Rica (CRM) in the Dispute concerning Certain Activities 356Cf. e.g. ICJ, Judgment, 13 July 2009, Dispute regarding Navigational and Related Rights
Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)). (Costa Rica v. Nicaragua), I.C.J. Reports 2009, p. 250, para. 88. See Chapter 4, below.
357See ibid., p. 249, para. 87 or p. 253, para. 101. subject to the régime of the 1858 Treaty, Nicaragua, as sovereign, has complete the San J uan River to Costa Rica – and certainly not the right to dump into the
power of regulation.” 358 river substantial volumes of sediments, soil, uprooted vegetation and felled trees
4.11. Another provision of the 1858 Tre aty which is not without which resulted in the invasion of Nicaraguan territory.
relevance for the present case is Article IV which obliges Costa Rica to contribute
to the security (“custody”) of the river “for the part that belongs to her of the of navigation on the San Juan River, while Costa Rica’s right of navigation is only
banks”. granted to it in a limited way . The object and purpose of the 1858 Treaty – with
4.12. As the Court put it in its Judgment of 13 July 2009, in t he case respect to navigation in the river – was to guaranty navigation from the river to
concerning the Dispute regarding navigational and related rights (Costa Rica v. and from the Atlantic Ocean (Caribbean Sea). In his third Award, General
Nicaragua): “[t]he 1858 Treaty of Limits completely defines the rules applicable Alexander clarified
359
to the section of the San Juan River that is in dispute in respect of navigation. ”
As for the rest, the River is submitted to the usual rules applicable to State
sovereignty.
At the time of the signing of the Treaty Nicaragua did not have “the full
2 . Costa Rica’s breaches of the 1858 Treaty of Limits
possession of all her rights in the port of San Juan”, and thus Article 5 of the
(a) Breach of Nicaragua’s right of navigation Treaty provided in pertinent part as follows:
4.13. As explained above, Article VI of the 1858 Treaty establishes that
Nicaragua has sovereignty over the waters of the San Juan River, the right bank of
360
which constitutes the boundary between the two States . Apart from the right of Report “Evaluation of the environmental impacts caused by the construction of a 120 km long road
parallel to the right bank of t he San Juan de Nicaragua River”, March 2012,
navigation for commercial purposes, the 1858 Treaty confers no other right over Counter Memorial of Nicaragua (NCM) in the Dispute Concerning Certain Activities Carried out
by Nicaragua in the Border Area
Supplemental Report, Chapter 3.2 ( See Vol. I, Appendix 2 to the Counter Memorial of Nicaragua
(NCM) in the Dispute Concerning Certain Activities Carried out by Nicaragua in the Border Area
358Ibid., p. 248, para. 85. (Costa Rica v. Nicaragua) and Kondolf’s Report (NM, Vol. II, Annex 1).
359I.C.J., Judgement, 13 July 2009,Dispute regarding Navigational and Related Rights (Costa 361
Rica v. Nicaragua), I.C.J. Reports 2009, p. 233, para. 36. Norte, Nicaragua, RIAA, vol. XXVIII, p. 230 (NM, Vol. II, Annex 6 (4)).
128subject to the régime of the 1858 Treaty, Nicaragua, as sovereign, has complete the San J uan River to Costa Rica – and certainly not the right to dump into the
power of regulation.” 358 river substantial volumes of sediments, soil, uprooted vegetation and felled trees
4.11. Another provision of the 1858 Tre aty which is not without which resulted in the invasion of Nicaraguan territory.
relevance for the present case is Article IV which obliges Costa Rica to contribute 4.14. It goes without saying that Nicaragua enjoys
to the security (“custody”) of the river “for the part that belongs to her of the of navigation on the San Juan River, while Costa Rica’s right of navigation is only
banks”. granted to it in a limited way . The object and purpose of the 1858 Treaty – with
4.12. As the Court put it in its Judgment of 13 July 2009, in t he case respect to navigation in the river – was to guaranty navigation from the river to
concerning the Dispute regarding navigational and related rights (Costa Rica v. and from the Atlantic Ocean (Caribbean Sea). In his third Award, General
Nicaragua): “[t]he 1858 Treaty of Limits completely defines the rules applicable Alexander clarified
359
to the section of the San Juan River that is in dispute in respect of navigation. ”
As for the rest, the River is submitted to the usual rules applicable to State
sovereignty.
At the time of the signing of the Treaty Nicaragua did not have “the full
2 . Costa Rica’s breaches of the 1858 Treaty of Limits
possession of all her rights in the port of San Juan”, and thus Article 5 of the
(a) Breach of Nicaragua’s right of navigation Treaty provided in pertinent part as follows:
4.13. As explained above, Article VI of the 1858 Treaty establishes that
Nicaragua has sovereignty over the waters of the San Juan River, the right bank of
360See above para. 4.1 See also Chapter 2 above and [FUNDENIC SOS & FONARE, Technical
which constitutes the boundary between the two States . Apart from the right of Report “Evaluation of the environmental impacts caused by the construction of a 120 km long road
parallel to the right bank of t he San Juan de Nicaragua River”, March 2012,
navigation for commercial purposes, the 1858 Treaty confers no other right over Counter Memorial of Nicaragua (NCM) in the Dispute Concerning Certain Activities Carried out
by Nicaragua in the Border Area
Supplemental Report, Chapter 3.2 ( See Vol. I, Appendix 2 to the Counter Memorial of Nicaragua
(NCM) in the Dispute Concerning Certain Activities Carried out by Nicaragua in the Border Area
358Ibid., p. 248, para. 85. (Costa Rica v. Nicaragua) and Kondolf’s Report (NM, Vol. II, Annex 1).
359I.C.J., Judgement, 13 July 2009,Dispute regarding Navigational and Related Rights (Costa 361Third Award, by the Umpire E.P. Alexander rendered on 30 September 1897 in San Juan del
Rica v. Nicaragua), I.C.J. Reports 2009, p. 233, para. 36. Norte, Nicaragua, RIAA, vol. XXVIII, p. 230 (NM, Vol. II, Annex 6 (4)). del Norte, the use and possession of Punta de project may negatively impact the ability of Costa Ricans to navigate the River;
Castilla shall be common and equal both for
or
Nicaragua and Costa Rica; and in the meantime, and
as long as this community lasts, the boundary shall
be the whole course of the Colorado river.”
of the watercourses crossed by the road. The alteration of the character and quality
4.15. The works for the construction of road 1856 constitute a serious of these watercourses will affect the character and quality of the San Juan de
threat on the navigation on the river – and not only in the short term: 362 Nicaragua River since they discharge into it;
- Dumping of trees 363 and soil along the route of the road into the river
flow, makes more difficult, and increases the risk of, navigation in its waters; 364 of Justice, whose members conducted their own
these findings. In its Judgment of 21 June 2012, the Court
- Destruction of the vegetation along the right bank of the river , together
with the creation of unsta ble, unprotected slopes and a lack of proper drainage, that:
result in both increased land collapse, and excessive erosion and sediment runoff
into the San Juan de Nicaragua River and an aggravation of which aggravate the
365
obstacles to navigating the river – a conclusion confirmed by Costa Rica’s
Association of Engineers and Architects , which finds that the road construction
362Harms caused to the San Juan de Nicaragua River are further detailed in Chapter 3 above.
363See Kondolf’s Report, (NM, Vol. II, Annex 1).
364CFIA Report, p. 11; see also pp. 17, 18, 19 (“impact on the forest is noticeable”), 21, 22 and 26
(NM, Vol. II, Annex 4) . See also photographs of trees and soil along the route of the road
(Application Instituting Proceedings, 22 December 2011, Construction of a Road in Costa Rica
along the San Juan River (Nicaragua vs. Costa Rica) , Annex 5) . See also Kondolf Report ,
Sections 3.1.4 & 3.3 (NM, Vol. II, Annex 1). See for a more detailed analysis, paras. 3.8-3.14
above .
365See e.g. photographs of fragile soil removal (Application Instituting Proceedings, 22 December
2011, Construction of a Road in Costa Rica along the San Juan River (Nicaragua vs. Costa Rica) ,
Annex 6). See also the Costa Rican Environmental Management Plan, April 2012, pp. 22-23 (NM,
Vol. II, Annex 2), CFIA Report DRD-INSP-0299-2012, 8 June 2012 , pp. 15 -17 (noting the
existence of high, nearly vertical slopes without protection of any k) (NM, Vol. II, Annex 4 )
366
and LANAMME Report, pp. 49 & 51 (NM, Vol. II, Annex 3). See also “First Kondolf Report”, 367
July 2012, Section 2.14 (Appendix 1 to the Counter Memorial of Nicaragua (NCM) in the Dispute
concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. 368as. 3.42-3.59 above.
Nicaragua)) and Kondolf Report , e.g., Section 6 (NM, Vol. II, Annex 1). See for a more detailed 369
analysis, paras. 3.15-3.41 above .
130 del Norte, the use and possession of Punta de project may negatively impact the ability of Costa Ricans to navigate the River;
Castilla shall be common and equal both for
or
Nicaragua and Costa Rica; and in the meantime, and
as long as this community lasts, the boundary shall - Interruption of the natural flow patterns and deterioration of the quality
be the whole course of the Colorado river.”
of the watercourses crossed by the road. The alteration of the character and quality
4.15. The works for the construction of road 1856 constitute a serious of these watercourses will affect the character and quality of the San Juan de
threat on the navigation on the river – and not only in the short term: 362 Nicaragua River since they discharge into it;
- Dumping of trees 363 and soil along the route of the road into the river 4.16. As noted in Chapters 2 and 3 above,
flow, makes more difficult, and increases the risk of, navigation in its waters; 364 of Justice, whose members conducted their own
these findings. In its Judgment of 21 June 2012, the Court
- Destruction of the vegetation along the right bank of the river , together
with the creation of unsta ble, unprotected slopes and a lack of proper drainage, that:
result in both increased land collapse, and excessive erosion and sediment runoff
into the San Juan de Nicaragua River and an aggravation of which aggravate the
365
obstacles to navigating the river – a conclusion confirmed by Costa Rica’s
Association of Engineers and Architects , which finds that the road construction
362Harms caused to the San Juan de Nicaragua River are further detailed in Chapter 3 above.
363See Kondolf’s Report, (NM, Vol. II, Annex 1).
364CFIA Report, p. 11; see also pp. 17, 18, 19 (“impact on the forest is noticeable”), 21, 22 and 26
(NM, Vol. II, Annex 4) . See also photographs of trees and soil along the route of the road
(Application Instituting Proceedings, 22 December 2011, Construction of a Road in Costa Rica
along the San Juan River (Nicaragua vs. Costa Rica) , Annex 5) . See also Kondolf Report ,
Sections 3.1.4 & 3.3 (NM, Vol. II, Annex 1). See for a more detailed analysis, paras. 3.8-3.14
above .
365See e.g. photographs of fragile soil removal (Application Instituting Proceedings, 22 December
2011, Construction of a Road in Costa Rica along the San Juan River (Nicaragua vs. Costa Rica) ,
Annex 6). See also the Costa Rican Environmental Management Plan, April 2012, pp. 22-23 (NM,
Vol. II, Annex 2), CFIA Report DRD-INSP-0299-2012, 8 June 2012 , pp. 15 -17 (noting the
existence of high, nearly vertical slopes without protection of any k) (NM, Vol. II, Annex 4 )
366See e.g. CFIA Report, p. 26 (NM, Vol. II, Annex 4).
and LANAMME Report, pp. 49 & 51 (NM, Vol. II, Annex 3). See also “First Kondolf Report”, 367
July 2012, Section 2.14 (Appendix 1 to the Counter Memorial of Nicaragua (NCM) in the Dispute See also Kondolf Report, Section 4.9 (NM, Vol. II, Annex 1). See for a more detailed analysis,
concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. 368as. 3.42-3.59 above.
Nicaragua)) and Kondolf Report , e.g., Section 6 (NM, Vol. II, Annex 1). See for a more detailed 369See paras. 2.39 - 2.47 and 3.11, 3.62 above.
analysis, paras. 3.15-3.41 above . C.A.C.J., Judgment, 21 June 2012, ruling V (NM, Vol. II, Annex 13). distance between the riverbed and the road is a few Nicaragua in the Border Area which was paradoxically brought before the Court
meters and the difference of level between the two
is very pronounced, with the road in a dominant by Costa Rica in 2010.
position and the river in a secondary position, all of
which makes possible a landslide of large segments
of the work in question, with the resulting
sedimentation that would pollute the river. The importantly worsened the already critical situation of the sediments within the
Court also verified the felling of a large number of
trees in Costa Rican territory, giving rise to vast River
areas where370ly reddish and clayish soil
remains.” the San Juan River per year as a result
4.17. This unlawful conduct has been recognized by Costa Rica. As t he Road,
CACJ noted in its 2012 decision: serious magnitude.
“[…] the webpage of the Ministry of Foreign been “astronomically accelerated over background natural
Affairs and Worship of the Republic of Costa Rica,
contain[s] statements by the President of the and the “lack of any planning, design, construction and maintenance standards for
Republic and opinions of technical and scientific
authorities of the Costa Rica n society, that the the road is resulting in widespread erosion that is displacing tens of thousands of
Government of that State made unilateral decisions,
in a hasty manner and without consultation, in light
cubic meters of soil”.
of the Community Integration System, which affect
the bilateral commitments of that Government with Sisyphean task thus depriving Nicaragua of its ability to restore or maintain the
the neighbouring State of Nicaragua.” 371
navigability of the lower stretches of the San Juan River.
4.18. It must be noted in particular that the construction of Road 1856
372
exacerbates the existin g problem of sedimentation in the San Juan River that
373
caused Nicaragua to undertake its dredging program to restore – at least to a
374
375
minimal level – the navigability of the lower stretches of the River. This is one of landslides are likely to occur…and these will deliver significantly larger quantities of sediment to
the river.”) & Section.6:
the main subject-matters of the case concerning Certain Activities carried out by
370
371Ibid., Whereas XXVI.
Ibid., Whereas XXVII.
372See e.g. La Nación, Costa Rica “Serious Errors Expose Trail to Risk of Collapse during the
Rainy Season,” 28 May 2012 (NM, Vol. II, Annex 35). 376
132 distance between the riverbed and the road is a few Nicaragua in the Border Area which was paradoxically brought before the Court
meters and the difference of level between the two
is very pronounced, with the road in a dominant by Costa Rica in 2010.
position and the river in a secondary position, all of
which makes possible a landslide of large segments 4.19. As explained in the previous Chapter, the construction of the Road
of the work in question, with the resulting
sedimentation that would pollute the river. The importantly worsened the already critical situation of the sediments within the
Court also verified the felling of a large number of
trees in Costa Rican territory, giving rise to vast River 373.
areas where370ly reddish and clayish soil
remains.” the San Juan River per year as a result
4.17. This unlawful conduct has been recognized by Costa Rica. As t he Road, 374
CACJ noted in its 2012 decision: serious magnitude.
“[…] the webpage of the Ministry of Foreign been “astronomically accelerated over background natural
Affairs and Worship of the Republic of Costa Rica,
contain[s] statements by the President of the and the “lack of any planning, design, construction and maintenance standards for
Republic and opinions of technical and scientific
authorities of the Costa Rica n society, that the the road is resulting in widespread erosion that is displacing tens of thousands of
Government of that State made unilateral decisions,
in a hasty manner and without consultation, in light
cubic meters of soil”.
of the Community Integration System, which affect
the bilateral commitments of that Government with Sisyphean task thus depriving Nicaragua of its ability to restore or maintain the
the neighbouring State of Nicaragua.” 371
navigability of the lower stretches of the San Juan River.
4.18. It must be noted in particular that the construction of Road 1856
372
exacerbates the existin g problem of sedimentation in the San Juan River that
373
caused Nicaragua to undertake its dredging program to restore – at least to a See paras. 3.77-3.80 above.
374Kondolf Report, Sections 4.12 & 6 (NM, Vol. II, Annex 1).
375Ibid., e.g., Section 4.11 (“During
minimal level – the navigability of the lower stretches of the River. This is one of landslides are likely to occur…and these will deliver significantly larger quantities of sediment to
the river.”) & Section.6:
[T]his poorly -sited, poorly -constructed road (and its extensive deforestat
the main subject-matters of the case concerning Certain Activities carried out by slope destabilization, and extensive bare, exposed ground) has simply “set the
table” for massive erosion and road failures that will occur in a major storm.
The situation is exacerbated by the nearly complete lack of competent erosion
370 control measures, leaving many parts of the road highly vulnerable to continued
371Ibid., Whereas XXVI. increased erosion and landsliding during intense rains. The proximity of the
Ibid., Whereas XXVII. road to the Río San Juan means that the sediment produced will be efficiently
372See e.g. La Nación, Costa Rica “Serious Errors Expose Trail to Risk of Collapse during the transported to the river….
Rainy Season,” 28 May 2012 (NM, Vol. II, Annex 35). 376Ibid., Appendix B, Section 3. obligation to notify Costa Rica of the measures i t adopts to regulate navigation on
(b) Breach of the obligation to notify
the river, or to give notice and consult with Costa Rica prior to the adoption by
4.20. On 13 December 2011, the President of Costa Rica, Ms Laura
Nicaragua of such measures. After having noted that “the part of the text of
Chinchilla, declared that Costa Rica “issued an emergency decree due to national
Article VI on which Costa Rica
377
necessity and it is on that basis that we have developed the projects” and, measures taken to regulate
therefore, has “no reason to offer explanations to the Government of
imposing a general obligation of notification and consultation,” the Court did not
378
Nicaragua.” President Chinchilla then made clear that Costa Rica is “not taking consider that argument further
even one step back.” 379This unambiguous refusal to consult with Nicaragua, the
sovereign over the river and neighbouring State affected by the works of
construction of road 1856 violates n ot only environmental obligations of Costa
Rica – violations which will be discussed in the next Chapter of this Memorial -,
but also an obligation stemming from the Treaty of Limits itself.
4.21. In this respect, the reasoning of the Court in its 2009 Judgment in
the Dispute regarding navigational and related rights (Costa Rica v. Nicaragua)
is transposable to the present case mutatis mutandis.
380
Rica v. Nicaragua), I.C.J. Reports 2009, p. 251, para. 92.
377El País, Costa Rica, “Chinchilla Defends Highway Criticized by Nicaragua, Rejects Dialogue”, 381
14 December 2011 (Source: EFE / 13 December 2011). (NM, Vol. II, Annex 24). relevant in the present case.
378Ibid. 382
379Ibid. 1956.
134 4.22. In that case, Costa Rica’s position was that Nicaragua was under an
obligation to notify Costa Rica of the measures i t adopts to regulate navigation on
(b) Breach of the obligation to notify the river, or to give notice and consult with Costa Rica prior to the adoption by
Nicaragua of such measures. After having noted that “the part of the text of
4.20. On 13 December 2011, the President of Costa Rica, Ms Laura
Article VI on which Costa Rica
Chinchilla, declared that Costa Rica “issued an emergency decree due to national measures taken to regulate
necessity and it is on that basis that we have developed the projects” 377and,
imposing a general obligation of notification and consultation,” the Court did not
therefore, has “no reason to offer explanations to the Government of consider that argument further
Nicaragua.” 378 President Chinchilla then made clear that Costa Rica is “not taking
379
even one step back.” This unambiguous refusal to consult with Nicaragua, the
sovereign over the river and neighbouring State affected by the works of
construction of road 1856 violates n ot only environmental obligations of Costa
Rica – violations which will be discussed in the next Chapter of this Memorial -,
but also an obligation stemming from the Treaty of Limits itself.
4.21. In this respect, the reasoning of the Court in its 2009 Judgment in
the Dispute regarding navigational and related rights (Costa Rica v. Nicaragua)
is transposable to the present case mutatis mutandis.
380I.C.J., Judgement, 13 July 2009,
Rica v. Nicaragua), I.C.J. Reports 2009, p. 251, para. 92.
377El País, Costa Rica, “Chinchilla Defends Highway Criticized by Nicaragua, Rejects Dialogue”, 381The third factor which “ lies in the very nature of regulation” (
14 December 2011 (Source: EFE / 13 December 2011). (NM, Vol. II, Annex 24). relevant in the present case.
378Ibid. 382The Fournier-Sevilla Agreement concluded between Nicaragua and Costa Rica on 9 January
379Ibid. 1956. within the terms of the Treaty of 15 much entitled as the other riparian State (which has no right of sovereignty
April 1858 and its interpretation given
by arbitration on 22 March 1888, and the river).
also in order to facilitate those transport
services which may be provided to the
territory of one Party by enterprises
which are nationals of the other.’
It is difficult to see how the obligation, set out under to – or even after – the beginning of the construction of Road 1856, but it has
the terms of the 1956 Agreement, to collaborate to abruptly refused to do so.
facilitate traffic on the San Juan and to facilitate
transport services being provided in the territory of
one country by the nationals of the other could be
met without Nicaragua notifying Costa Rica of
relevant regulations which it adopts.
Costa Rica information on these works and pointed out
95. The second factor indicating that Nicaragua is
obliged to notify the adoption of the regulations lies
in its very subject -matter: navigation on a river in
which two States have rights, the one as sovereign,
the other to freedom of navigation. Such a
requirement arises from the practical necessities of
navigation on such a waterway. If the various
purposes of navigation are to be achieved, it must be
subject to some discipline, a discipline which
depends on pr383r notifica tion of the relevant
regulations.”
4.23. Both arguments hold true for both States and must also be applied
in the present case: if Nicaragua, the sovereign over the waters of the San Juan
River, is bound to notify Costa Rica of the regulations it adopts to reg ulate the
traffic on the river, this is true a fortiori for the activities by Costa Rica which
have an impact on the navigation over the river – to which Nicaragua is at least as
38I.C.J., Judgement, 13 July 2009Dispute regarding Navigational and Related Rights (Costa 384
Rica v. Nicaragua), I.C.J. Reports 2009, p. 252, paras. 94-95. Costa Rica, Ref: MRE/DVM/AJST/500/11/11, 29 November 2011 (NM, Vol. II, Annex 14).
136 within the terms of the Treaty of 15 much entitled as the other riparian State (which has no right of sovereignty
April 1858 and its interpretation given
by arbitration on 22 March 1888, and the river).
also in order to facilitate those transport
services which may be provided to the
territory of one Party by enterprises 4.24. Not only has Costa Rica not notified or consulted Nicaragua prior
which are nationals of the other.’
It is difficult to see how the obligation, set out under to – or even after – the beginning of the construction of Road 1856, but it has
the terms of the 1956 Agreement, to collaborate to abruptly refused to do so.
facilitate traffic on the San Juan and to facilitate
transport services being provided in the territory of
one country by the nationals of the other could be
met without Nicaragua notifying Costa Rica of 4.25. In a note dated 29 November 2011, Nicaragua requested from
relevant regulations which it adopts.
Costa Rica information on these works and pointed out
95. The second factor indicating that Nicaragua is
obliged to notify the adoption of the regulations lies
in its very subject -matter: navigation on a river in
which two States have rights, the one as sovereign,
the other to freedom of navigation. Such a
requirement arises from the practical necessities of
navigation on such a waterway. If the various
purposes of navigation are to be achieved, it must be
subject to some discipline, a discipline which
depends on pro383 notifica tion of the relevant
regulations.”
4.23. Both arguments hold true for both States and must also be applied
in the present case: if Nicaragua, the sovereign over the waters of the San Juan
River, is bound to notify Costa Rica of the regulations it adopts to reg ulate the
traffic on the river, this is true a fortiori for the activities by Costa Rica which
have an impact on the navigation over the river – to which Nicaragua is at least as
383I.C.J., Judgement, 13 July 2009Dispute regarding Navigational and Related Rights (Costa 38Note from the Minister of Foreign Affairs of Nicaragua, to the Minister of Foreign Affairs of
Rica v. Nicaragua), I.C.J. Reports 2009, p. 252, paras. 94-95. Costa Rica, Ref: MRE/DVM/AJST/500/11/11, 29 November 2011 (NM, Vol. II, Annex 14). 4.26. In reaction, the Costa Rican Foreign Minister simply invited “the without formally answering Nicaragua’s Note, Costa Rica went as far as denying
Government of Nicaragua to present formally the reasons for which it considers any damage caused to the River San Juan and Nicaragua.
that there may be environmental damage or damage to Nicaragua’s interests.” 385
No further information was provided. However, in a N ote dated 10 December
2011, although it has no obligation to do so, Nicaragua explain ed its position on
this question in full.386After enumerating various instruments for the protection of
defines the rules applicable to the sect ion of the San Juan River” relevant to the
the environment breached by Costa Rica and denounced the misinformation about
present case.
the project, the Government of Nicaragua went on by stating:
whether customary or included in treaties to which both Nicaragua and Costa Rica
“Independently of the above mentioned, it is evident are parties, apply as far as they do not contradict the relevant provisions contained
that the construction of the road seriously affects the
environment and the rights of Nicaragua. If the in the 1858 Treaty as interpreted by the subsequent arbitral and judicial decisions.
project is not ceased it would have irreversible and
transcendental ecological and environmental In the present case Costa Rica has breached, in particular, the fundamental
consequences.”,
principles of the territorial integrity of Nicaragua (1.) an d of the non-harmful use
and by enumerating and briefly describing these consequences. of the territory (2 ), the obligation to inform, notify and consult
4.27. Except for the abrupt flat refusal by President Laura Chinchilla on principle of good neighbourliness stemming from the Tegucigalpa Protocol to the
387 Charter of the Organization of Central American States (4).
13 December 2011, no further development has occurred since then. However,
385Diplomatic note from the Minister of Foreign Affairs and Worship of Costa Rica to the 388
Minister of Foreign Affairs of Nicaragua, Ref: DM -AM-601-11, 29 November 2011 (NM, Vol. II, of 1856 Trail ”, 15 July 2012 (NM, Vol. II, Annex 37): “The Court confirmed damages in Costa
Annex 15); see also Diplomatic note from the Minister of Foreign Affairs and Worship of Costa Rican territory but found no evidence of sediments dragged into the San Juan River.”
Rica to the Minister of Foreign Affairs of Nicaragua, Ref: DVM -AM-286-11, 20 December 2011 Pais, Costa Rica, “Road 1856: First Study by the TAA Points Out Impacts to the Protection Area
386, Vol. II, Annex 17) . of the San Juan River”, 26 July 2012
Note from the Minister of Foreign Affairs of Nicaragua, to the Minister of Foreign Affairs of 389parently, there is erosion and sediment-laden toward the rivers, freshwater marshes and lakes.”
Costa Rica, Ref: MRE/DVS/VJW/0685/12/11, Managua, 10 December 2011 (NM, Vol. II, Annex 390
387. For a more complete analysis of that Note, see below, paras. 5.55-5.57.
See para. 4.20 above. Rica v. Nicaragua), I.C.J. Reports 2009, p. 233, para. 36. See also para. 4.12 above.
138 4.26. In reaction, the Costa Rican Foreign Minister simply invited “the without formally answering Nicaragua’s Note, Costa Rica went as far as denying
Government of Nicaragua to present formally the reasons for which it considers any damage caused to the River San Juan and Nicaragua.
that there may be environmental damage or damage to Nicaragua’s interests.” 385
No further information was provided. However, in a N ote dated 10 December
2011, although it has no obligation to do so, Nicaragua explain ed its position on
4.28. As shown above,
this question in full.386After enumerating various instruments for the protection of
defines the rules applicable to the sect ion of the San Juan River” relevant to the
the environment breached by Costa Rica and denounced the misinformation about
present case.
the project, the Government of Nicaragua went on by stating:
whether customary or included in treaties to which both Nicaragua and Costa Rica
“Independently of the above mentioned, it is evident are parties, apply as far as they do not contradict the relevant provisions contained
that the construction of the road seriously affects the
environment and the rights of Nicaragua. If the in the 1858 Treaty as interpreted by the subsequent arbitral and judicial decisions.
project is not ceased it would have irreversible and
transcendental ecological and environmental In the present case Costa Rica has breached, in particular, the fundamental
consequences.”,
principles of the territorial integrity of Nicaragua (1.) an d of the non-harmful use
and by enumerating and briefly describing these consequences. of the territory (2 ), the obligation to inform, notify and consult
4.27. Except for the abrupt flat refusal by President Laura Chinchilla on principle of good neighbourliness stemming from the Tegucigalpa Protocol to the
387 Charter of the Organization of Central American States (4).
13 December 2011, no further development has occurred since then. However,
385Diplomatic note from the Minister of Foreign Affairs and Worship of Costa Rica to the 388See El País, Costa Rica, “Environmental Court Confirmed Excessive Felling for Construction
Minister of Foreign Affairs of Nicaragua, Ref: DM -AM-601-11, 29 November 2011 (NM, Vol. II, of 1856 Trail ”, 15 July 2012 (NM, Vol. II, Annex 37): “The Court confirmed damages in Costa
Annex 15); see also Diplomatic note from the Minister of Foreign Affairs and Worship of Costa Rican territory but found no evidence of sediments dragged into the San Juan River.”
Rica to the Minister of Foreign Affairs of Nicaragua, Ref: DVM -AM-286-11, 20 December 2011 Pais, Costa Rica, “Road 1856: First Study by the TAA Points Out Impacts to the Protection Area
386, Vol. II, Annex 17) . of the San Juan River”, 26 July 2012
Note from the Minister of Foreign Affairs of Nicaragua, to the Minister of Foreign Affairs of 389parently, there is erosion and sediment-laden toward the rivers, freshwater marshes and lakes.”
Costa Rica, Ref: MRE/DVS/VJW/0685/12/11, Managua, 10 December 2011 (NM, Vol. II, Annex 390See paras. 4.3 and 4.12 above.
387. For a more complete analysis of that Note, see below, paras. 5.55-5.57. I.C.J., Judgement, 13 July 2009,
See para. 4.20 above. Rica v. Nicaragua), I.C.J. Reports 2009, p. 233, para. 36. See also para. 4.12 above. 4.29. It might not be superfluous to repeat once more, since Costa Rica
seems to ignore this studiously, that the San Juan River is under Nicaragua’s existence of a permissive rule to the contrary, a State “ may not exercise its power
391
exclusive sovereignty. As a consequence, the principles applying to the State in any form in the territory of another State.”
territory fully apply on and in relation to the river.
4.30. This is the case, in particular, of the principle of State sovereignty this is what Cos ta Rica has done
itself. As explained by Arbitrator Max Huber in a celebrated passage of its Award vegetation into the San Juan de Nicaragua Rica .
in the case concerning the Island of Palmas, of the natural flow of the waters that flow to the San Juan River modifies the
drainage of the surrounding wetlands in
“Sovereignty in the relations between States
signifies independence. Independence in regard to a significantly affects the level and the quality of the water of the San Juan River.
portion of the globe is the right to exercise therein,
to the exclusion of any other State, the function s of
a State. […I]t may be stated that territorial
sovereignty belongs always to one, or in exceptional
circumstances392 several States, to the exclusion of
all others.”
In other words, territorial sovereignty is both all -inclusive and exclusive. And, as principle stemming from the very idea of territorial sovereignty, that of the non
the Court put it “[b]etween independent States, respect for territorial sovereignty
harmful use of the State territory.
393
is an essential foundation of international relations.”
States are under an obligation “to ensure that activities with
391See para. 4.7 above. 394
392Arbitral Award, 4 April 1928, Island of Palmas, UNRIAA, vol. II, p. 838. 395
393I.C.J., Judgment, 9 April 1949, Corfu Channel (United Kingdom of great Britain and Northern 396
Ireland v. Albania), I.C.J. Reports 1949, p. 22. 397
140 4.29. It might not be superfluous to repeat once more, since Costa Rica 4.31. The immediate consequence of this key principle is that, failing the
seems to ignore this studiously, that the San Juan River is under Nicaragua’s existence of a permissive rule to the contrary, a State “ may not exercise its power
391
exclusive sovereignty. As a consequence, the principles applying to the State in any form in the territory of another State.”
territory fully apply on and in relation to the river.
4.32. Yet, as explained above
4.30. This is the case, in particular, of the principle of State sovereignty this is what Cos ta Rica has done
itself. As explained by Arbitrator Max Huber in a celebrated passage of its Award vegetation into the San Juan de Nicaragua Rica .
in the case concerning the Island of Palmas, of the natural flow of the waters that flow to the San Juan River modifies the
drainage of the surrounding wetlands in
“Sovereignty in the relations between States
signifies independence. Independence in regard to a significantly affects the level and the quality of the water of the San Juan River.
portion of the globe is the right to exercise therein,
to the exclusion of any other State, the function s of
a State. […I]t may be stated that territorial
sovereignty belongs always to one, or in exceptional
circumstances392 several States, to the exclusion of
all others.”
4.33. By the same token, Costa Rica is also violating another
In other words, territorial sovereignty is both all -inclusive and exclusive. And, as principle stemming from the very idea of territorial sovereignty, that of the non
the Court put it “[b]etween independent States, respect for territorial sovereignty
harmful use of the State territory.
393
is an essential foundation of international relations.”
4.34. As will be further exposed in the next Chapter of this memorial,
States are under an obligation “to ensure that activities with
391See para. 4.7 above. 394P.C.I.J., Judgment, 7 September 1927, The Case of the S.S. “Lotus”, Series A, No. 10, p. 18.
392Arbitral Award, 4 April 1928, Island of Palmas, UNRIAA, vol. II, p. 838. 395See par. 4.15.
393I.C.J., Judgment, 9 April 1949, Corfu Channel (United Kingdom of great Britain and Northern 396Ibid.
Ireland v. Albania), I.C.J. Reports 1949, p. 22. 397Ibid. 398
and control respect the environment of other States.” This principle has been
399
first expressed in the 1972 Stockholm Declaration and recalled several times
since then. 400 However it is not limited to the issue of the protection of the
environment and it has a more general scope.
4.35. It is well established that, very generally, States are under a duty of
due diligence to “take all appropriate measures to prevent significant
Judgment in the Corfu Channel case where it restates that every State is under an
401
transboundary harm or at any event to minimize the risk thereof.” It was also “obligation not to allow knowingly its territory to be used for acts contrary to the
brilliantly explained in Max Huber’s 1928 Award concerning the Island of
rights of other States.”
Palmas:
“Territorial sovereignty, as has already been said,
involves the exclusive right to display the activities most elementary precautions
of a State. This right has as corollary a duty: the
obligation to protect within the territory the rights of navigability and its environment, and by effectively damaging it – as explained in
other States, in particular their right to integrity and
inviolability in peace and in war, together with the more detail in Chapter 3 above, Costa Rica has seriously breached this essential
rights which each State may claim for its nationals
in foreign territory.” 402 obligation. Moreover, a s explained in Chapter s 2 and 3, various entities within
and affiliated with Costa Rica have criticized the road construction project and
That same principle was firmly reaffirmed in the Trail Smelter Arbitration:
demonstrated that environmental harm and risks of future harm have been caused
398
I.C.J., Advisory Opinion, 8 July 1996, Legality of the Threat or Use of Nuclear Weapons, I.C.J. by Costa Rica’s unplanned and irresponsible activities. Costa Rica has completely
Reports 1996, pp. 241-242, para. 29. See CRM, pp. 211-212, para. 5.29.
399Report of the United Nations Conference on the Human Environment, Stockholm, 5 –16 June
1972 (United Nations publication, Sales No. E.73.II.A.14 and corrigendum), Principle 21. ignored this obligation with respect to Road 1856, the construction of which
400See e.g. Report of the United Nations Conference on Environment and Development, Rio de
Janeiro, 3-14 June 1992, UN doc. A/CONF.151/26 (vol. I), Annex I, Principle 2 or Article 3 of
Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, Yearbook of the caused significant harm to the San Juan River – that is, to Nicaragua. Not only has
401ernational Law Commission, 2001, vol. II, Part Two, p. 153. 403
Article 3 of the ILC Draft Articles on Prevention of Transboundary Harm from Hazardous
402ivities, Yearbook of the International Law Commission, 2001, vol. II, Part Two, p. 153. 404ada), UNRIAA, vol. III, p. 1965.
Arbitral Award, 4 April 1928, Island of Palmas (Netherlands v. United States of America ,
UNRIAA, vol. II, p. 839. Ireland v. Albania), I.C.J. Reports 1949, p. 22.
142 398
and control respect the environment of other States.” This principle has been
399
first expressed in the 1972 Stockholm Declaration and recalled several times
since then. 400 However it is not limited to the issue of the protection of the
environment and it has a more general scope.
4.35. It is well established that, very generally, States are under a duty of And again with the greatest firmness and clarity in the Court’s 1949
due diligence to “take all appropriate measures to prevent significant
Judgment in the Corfu Channel case where it restates that every State is under an
401
transboundary harm or at any event to minimize the risk thereof.” It was also “obligation not to allow knowingly its territory to be used for acts contrary to the
brilliantly explained in Max Huber’s 1928 Award concerning the Island of
rights of other States.”
Palmas:
4.36. By authorizing the construction of road 1856 without taking the
“Territorial sovereignty, as has already been said,
involves the exclusive right to display the activities most elementary precautions
of a State. This right has as corollary a duty: the
obligation to protect within the territory the rights of navigability and its environment, and by effectively damaging it – as explained in
other States, in particular their right to integrity and
inviolability in peace and in war, together with the more detail in Chapter 3 above, Costa Rica has seriously breached this essential
rights which each State may claim for its nationals
in foreign territory.” 402 obligation. Moreover, a s explained in Chapter s 2 and 3, various entities within
and affiliated with Costa Rica have criticized the road construction project and
That same principle was firmly reaffirmed in the Trail Smelter Arbitration:
demonstrated that environmental harm and risks of future harm have been caused
398
I.C.J., Advisory Opinion, 8 July 1996, Legality of the Threat or Use of Nuclear Weapons, I.C.J. by Costa Rica’s unplanned and irresponsible activities. Costa Rica has completely
Reports 1996, pp. 241-242, para. 29. See CRM, pp. 211-212, para. 5.29.
399Report of the United Nations Conference on the Human Environment, Stockholm, 5 –16 June
1972 (United Nations publication, Sales No. E.73.II.A.14 and corrigendum), Principle 21. ignored this obligation with respect to Road 1856, the construction of which
400See e.g. Report of the United Nations Conference on Environment and Development, Rio de
Janeiro, 3-14 June 1992, UN doc. A/CONF.151/26 (vol. I), Annex I, Principle 2 or Article 3 of
Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, Yearbook of the caused significant harm to the San Juan River – that is, to Nicaragua. Not only has
401ernational Law Commission, 2001, vol. II, Part Two, p. 153. 403
Article 3 of the ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Arbitral Award, 11 March 1941,
402ivities, Yearbook of the International Law Commission, 2001, vol. II, Part Two, p. 153. 404ada), UNRIAA, vol. III, p. 1965.
Arbitral Award, 4 April 1928, Island of Palmas (Netherlands v. United States of America , I.C.J., Judgment, 9 April 1949, Corfu Channel (United Kingdom of great Britain and Northern
UNRIAA, vol. II, p. 839. Ireland v. Albania), I.C.J. Reports 1949, p. 22. Costa Rica failed to prevent significant transboundary harm; it did not even assess
the risks its actions posed to the environment and the territory of Nicaragua, much
less an attempt to minimize those risks.
3 . The violation of the obligation to inform, notify and consult
405
4.37. As shown above, Costa Rica has breached its obligation to notify
Nicaragua of its activities affecting the San Juan River. This obligation does not
only result from the 1858 Treaty of Limits; it is also a general obligation under
customary international law as is well illustrated by the Corfu Channel case:
“The oblig ations incumbent upon the Albanian
authorities consisted in notifying, for the benefit of
shipping in general, the existence of a minefield in
Albanian territorial waters and in warning the
approaching British warships of the imminent
danger to which the m inefield exposed them. Such
obligations are based, not on the Hague Convention
of 1907, No. VIII, which is applicable in time of
war, but on certain general and well -recognized
principles, namely : elementary considerations of
humanity, even more exacting i n peace than in war
[…]” 406
4.38. And three articles of the ILC Draft Articles on Prevention of
Transboundary Harm from Hazardous Activities elaborate the principle as 407
articles shall, in particular, be based on an assessment of the possible transboundary harm caused
follows: by that activity, including any environmental impact assessment. ” Yearbook of the International
Law Commission, 2001, vol. II, Part Two, p. 157.
408
405See paras. 4.19-4.267 above. commentary, ibid., p. 160.
406I.C.J., Judgment, 9 April 1949, Corfu Channel (United Kingdom of great Britain and Northern 409
Ireland v. Albania), I.C.J. Reports 1949, p. 22. 410
144Costa Rica failed to prevent significant transboundary harm; it did not even assess
the risks its actions posed to the environment and the territory of Nicaragua, much
less an attempt to minimize those risks.
3 . The violation of the obligation to inform, notify and consult
405
4.37. As shown above, Costa Rica has breached its obligation to notify
Nicaragua of its activities affecting the San Juan River. This obligation does not
only result from the 1858 Treaty of Limits; it is also a general obligation under
customary international law as is well illustrated by the Corfu Channel case:
“The oblig ations incumbent upon the Albanian
authorities consisted in notifying, for the benefit of
shipping in general, the existence of a minefield in
Albanian territorial waters and in warning the
approaching British warships of the imminent
danger to which the m inefield exposed them. Such
obligations are based, not on the Hague Convention
of 1907, No. VIII, which is applicable in time of
war, but on certain general and well -recognized
principles, namely : elementary considerations of
humanity, even more exacting i n peace than in war
[…]” 406
4.38. And three articles of the ILC Draft Articles on Prevention of
Transboundary Harm from Hazardous Activities elaborate the principle as 407
“Any decision in respect of the authorization of an activity within the scope of the present
articles shall, in particular, be based on an assessment of the possible transboundary harm caused
follows: by that activity, including any environmental impact assessment. ” Yearbook of the International
Law Commission, 2001, vol. II, Part Two, p. 157.
408Yearbook of the International Law Commission , 2001, vol. II, Part Two, p. 159;
405See paras. 4.19-4.267 above. commentary, ibid., p. 160.
406I.C.J., Judgment, 9 April 1949, Corfu Channel (United Kingdom of great Britain and Northern 409Ibid. p. 160; see also the commentary, ibid.
Ireland v. Albania), I.C.J. Reports 1949, p. 22. 410Ibid. p. 164. As explained by the ILC in its commentary on Article 12: compatible with
Integration System on the basis of an institutional and legal order and mutual
“Article 12 requires the State of origin and the
States likely to be affected to exchange information respect between Member States.”
regarding the activity after it has been undertaken.
The phrase “concerning that activity” after the
words “all available information” is intended to
emphasize the link between the information and the
activity and not any information. The duty of
several material breaches of its obligatio ns to Nicaragua both under the 1858
prevention based on the concept of due diligence is
not a one-time effort but requires continuous effort. Treaty of Limits and under
This means that due diligence is not terminated after
granting authorization for the activity and
dumping soils and sediments, trees and vegetation into the San Juan de Nicaragua
undertaking the activity; it continues in respect of
monitoring the implementation of the activity as Rica, Costa Rica:
long as the activity continues.” 411
4.39. The obligation to notify applies with particular strength concerning IV of the 1858 Treaty of Limits as interpreted by successive arbitral and judicial
decisions and defeated an element of the object and purpose of the 1858 Limits by
international watercourses as was recalled in the Lac Lanoux case:
affecting the navigability of the San Juan de Nicaragua River;
“A State wishing to do that which will affect an
international watercourse cannot decide whether
another State’s interests will be affected; the other the principle of non-harmful use of the State territory;
State is the sole judge of that and has the right to
information on the proposals. Consultations and
negotiations between the two States must be
genuine, must comply with the rules of good faith
and must not be mere formalities.” 412 construction of road 1856 and there
stemming the 1858 Treaty of Limits as well as general international law; and
4.40. Finally, Costa Rica ignore s two binding decisions of the CACJ
413
which ordered the suspension of the works on Road 1856. This conduct is not of Central American States.
411Ibid., p. 165, para. 2 of the commentary.
412Lake Lanoux Arbitration (France v. Spain) , Award, 16 November 1957, International Law
Reports, vol. 24, p. 119.
413 414
C.A.C.J., Judgment, 21 June 2012, Whereas IX (NM, Vol. II, Annex13).
146 As explained by the ILC in its commentary on Article 12: compatible with
Integration System on the basis of an institutional and legal order and mutual
“Article 12 requires the State of origin and the
States likely to be affected to exchange information respect between Member States.”
regarding the activity after it has been undertaken.
The phrase “concerning that activity” after the
words “all available information” is intended to
emphasize the link between the information and the 4.41. As shown in the present Chapter, Costa Rica has committed
activity and not any information. The duty of
several material breaches of its obligatio ns to Nicaragua both under the 1858
prevention based on the concept of due diligence is
not a one-time effort but requires continuous effort. Treaty of Limits and under
This means that due diligence is not terminated after
granting authorization for the activity and
dumping soils and sediments, trees and vegetation into the San Juan de Nicaragua
undertaking the activity; it continues in respect of
monitoring the implementation of the activity as Rica, Costa Rica:
long as the activity continues.” 411
(i) has violated the right of navigation of Nicaragua stemming from Article
4.39. The obligation to notify applies with particular strength concerning IV of the 1858 Treaty of Limits as interpreted by successive arbitral and judicial
decisions and defeated an element of the object and purpose of the 1858 Limits by
international watercourses as was recalled in the Lac Lanoux case:
affecting the navigability of the San Juan de Nicaragua River;
“A State wishing to do that which will affect an
(ii) it has also violated Nicaraguan territorial integrity and failed to respect
international watercourse cannot decide whether
another State’s interests will be affected; the other the principle of non-harmful use of the State territory;
State is the sole judge of that and has the right to
information on the proposals. Consultations and
negotiations between the two States must be (iii) it has failed to inform, notify or consult Nicaragua concerning the
genuine, must comply with the rules of good faith
and must not be mere formalities.” 412 construction of road 1856 and there
stemming the 1858 Treaty of Limits as well as general international law; and
4.40. Finally, Costa Rica ignore s two binding decisions of the CACJ
(iv) it violated the Tegucigalpa Protocol to the Charter of the Organization
413
which ordered the suspension of the works on Road 1856. This conduct is not of Central American States.
411Ibid., p. 165, para. 2 of the commentary.
412Lake Lanoux Arbitration (France v. Spain) , Award, 16 November 1957, International Law
Reports, vol. 24, p. 119.
413 414
C.A.C.J., Judgment, 21 June 2012, Whereas IX (NM, Vol. II, Annex13). Ibid. Court, as a paragon of environmentalism and environmental protection.
at the same time sought to portray Nicaragua, at best, as being oblivious of the
environment and its protection, and at worst, as having willfully caused
environmental harm in the Lower San Juan de Nicaragua.
has acted in utter disregard of its environmental obligations in constructing what
it has chosen to call the “Juan Rafael Mora Porras 1856 Highway ,”
referred to as the Road for simplicity, resulting in destruction of the environment
415
the case concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica
v. Nicaragua) (hereinafter the Certain Activities case), e.g., the opening statement of the Agent of
Costa Rica, Ambassador Edgar Ugalde , on 11 Jan. 2011, para. 6, available at
cij.org/docket/files/150/16282.pdf; and in Costa Rica’s Memorial (CRM) in that case. Reference
may be made in particular to Chapter V of the Memorial, Nicaragua’s Breaches of the
environmental Protection Regime, at p. 199, et seq. See also the website of Costa Rica’s Ministry
of Environment, Energy and Telecommunications (MINAET), http://www.minae.go.cr/; and the
Costa Rica Tourism website, also http://www.tourism.co.cr/. Costa Rica was once dubbed “the
Switzerland of Central America”, a sobriquet it no doubt welcomed due to
tourism for foreign exchange. See
1166587.stm.
416
417
148 CHAPTER 5
COSTA RICA’S BREACHES OF ITS ENVIRONMENTAL
OBLIGATIONS
A . INTRODUCTION
5. 1 Costa Rica has presented itself in a variety of fora, including this
415
Court, as a paragon of environmentalism and environmental protection. It has
at the same time sought to portray Nicaragua, at best, as being oblivious of the
environment and its protection, and at worst, as having willfully caused
416
environmental harm in the Lower San Juan de Nicaragua.
5. 2 The present Chapter will show that it is in fact Costa Rica that
has acted in utter disregard of its environmental obligations in constructing what
417
it has chosen to call the “Juan Rafael Mora Porras 1856 Highway ,” hereafter
referred to as the Road for simplicity, resulting in destruction of the environment
415This is evident from, e.g., Costa Rica’s oral pleadings in the Provisional Measures hearings in
the case concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica
v. Nicaragua) (hereinafter the Certain Activities case), e.g., the opening statement of the Agent of
Costa Rica, Ambassador Edgar Ugalde , on 11 Jan. 2011, para. 6, available http://www.icj-
cij.org/docket/files/150/16282.pdf; and in Costa Rica’s Memorial (CRM) in that case. Reference
may be made in particular to Chapter V of the Memorial, Nicaragua’s Breaches of the
environmental Protection Regime, at p. 199, et seq. See also the website of Costa Rica’s Ministry
of Environment, Energy and Telecommunications (MINAET), http://www.minae.go.cr/; and the
Costa Rica Tourism website, also http://www.tourism.co.cr/. Costa Rica was once dubbed “the
Switzerland of Central America”, a sobriquet it no doubt welcomed dueits heavy reliance on
tourism for foreign exchange. See http://news.bbc.co.uk/2/hi/americas/country_profiles/
1166587.stm.
416
417See, e.g., Chapter V of Costa Rica’s Memorial (CRM) in the Certain Activities case.
See footnote 1 above
149 on a massive scale and leaving an ugly scar some 1 20 kilometers long 418 along the obligation to provide prior notification of planned measures that may have a
the right bank of the San Juan de Nicaragua River. It will be recalled that significant adverse effect upon Nicaragua (B), violation of the obligation to use
419
pursuant to Article II of the 1858 Treaty of Limits between the parties, the its territory in a manner that does not cause harm to its neighbor, Nicaragua (C),
border runs along the right bank of the river beginning three English miles below and breaches of treaties to which the two states are parties (D) . That Costa Rica
420
Castillo Viejo, making the Road project, and the R oad itself, something of has succeeded in this mission of leaving no environmental obligation unbreached
intense interest and concern on the part of Nicaragua. is supported by the judgment of 21 June 2012 of the Central American Court of
5. 3 For this reason, and more generally, it is most unfortunate that Justice (CACJ),
Costa Rica has laid waste to some 120 kilometers of the right bank of the San
Juan de Nicaragua River, particularly in view of the fact that, as recognized by outset of the present chapter, as well –
the Court, “the environment is not an abstraction but represents the living space, Navigational and Related Rights case, “[t]he 1858 Treaty of Limits completely
the quality of life and the very health of human beings, including generations defines the rules applicable to the section of the San Juan River that is in dispute
421
unborn.” in respect of navigation.”
5. 4 It is thus especially r emarkable that, in constructing this R oad, other principles and rules of international law insofar as they do not contradict
Costa Rica seems to have been determined to commit blatant violations of every the 1858 Treaty as interpreted by the subsequent arbitral awards
possible environmental obligation, including failure to prepare a transboundary
environmental impact assessment (EIA), or even a national EIA (A), breach of
422
423
2009, p. 233, para. 36.
418Costa Rican Environmental Management Plan, April 2012, p. 5, (NM, Volume II, Annex 2 ). 424
See also the CFIA Report, p. 2, (NM, Vol. II, Annex 4) where it is stated that the Road “extends Nicaragua, reprinted United Nations, Reports of International Arbitral Awards
along the approximately 160 kilometres between Los Chiles and Delta . . . and the arteries that (2007) pp.215-221, San Juan del Norte, 30 September 1897; Second Award of the Umpire EP
access it, which total approximately 400 additional kilometres.” For 120 kilometers of its total Alexander in the boundary question between Costa Rica and Nicaragua, reprinted United Nations,
length the Road follows the bank of the San Juan River, i.e. , from the point at which the border Reports of International Arbitral Awards , Vol. XXVIII (2007) pp.223- 225, San Juan del Norte,
meets the right bank of the river, at Castillo Viejo, to the point at which the Colorado River 20 December 1897; Third Award of the Umpire EP Alexander in the boundary q uestion between
branches off from the San Juan. Costa Rica and Nicaragua, reprinted United Nations,
419Treaty of Limits between Nicaragua and Costa Rica, 15 April 1858 ( NM, Vol. II, Annex 5). Vol. XXVIII (2007) pp.227- 230, San Juan del Norte, 22 March 1898; Fourth Award of the
420Ibid., Art. II. Umpire EP Alexander in the boundary question between Costa R
421
Legality of the Threat or Use of NuclearWeapons , Advisory Opinion, I. C. J. Reports 1996, United Nations, Reports of International Arbitral Awards,
p. 241, para. 29. Greytown, 26 July 1899. (NM, Vol. II, Annex 6 (2)(3)(4)(5)).
150on a massive scale and leaving an ugly scar some 1 20 kilometers long 418 along the obligation to provide prior notification of planned measures that may have a
the right bank of the San Juan de Nicaragua River. It will be recalled that significant adverse effect upon Nicaragua (B), violation of the obligation to use
419
pursuant to Article II of the 1858 Treaty of Limits between the parties, the its territory in a manner that does not cause harm to its neighbor, Nicaragua (C),
border runs along the right bank of the river beginning three English miles below and breaches of treaties to which the two states are parties (D) . That Costa Rica
420
Castillo Viejo, making the Road project, and the R oad itself, something of has succeeded in this mission of leaving no environmental obligation unbreached
intense interest and concern on the part of Nicaragua. is supported by the judgment of 21 June 2012 of the Central American Court of
5. 3 For this reason, and more generally, it is most unfortunate that Justice (CACJ),
Costa Rica has laid waste to some 120 kilometers of the right bank of the San 5. 5
Juan de Nicaragua River, particularly in view of the fact that, as recognized by outset of the present chapter, as well –
the Court, “the environment is not an abstraction but represents the living space, Navigational and Related Rights case, “[t]he 1858 Treaty of Limits completely
the quality of life and the very health of human beings, including generations defines the rules applicable to the section of the San Juan River that is in dispute
421
unborn.” in respect of navigation.”
5. 4 It is thus especially r emarkable that, in constructing this R oad, other principles and rules of international law insofar as they do not contradict
Costa Rica seems to have been determined to commit blatant violations of every the 1858 Treaty as interpreted by the subsequent arbitral awards
possible environmental obligation, including failure to prepare a transboundary
environmental impact assessment (EIA), or even a national EIA (A), breach of
422C.A.C.J Judgement, 21 June 2012 (NM, Vol. II, Annex 13) .
423Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), I.C.J. Reports
2009, p. 233, para. 36.
418Costa Rican Environmental Management Plan, April 2012, p. 5, (NM, Volume II, Annex 2 ). 424First Award of t he Umpire EP Alexander in the boundary question between Costa Rica and
See also the CFIA Report, p. 2, (NM, Vol. II, Annex 4) where it is stated that the Road “extends Nicaragua, reprinted United Nations, Reports of International Arbitral Awards
along the approximately 160 kilometres between Los Chiles and Delta . . . and the arteries that (2007) pp.215-221, San Juan del Norte, 30 September 1897; Second Award of the Umpire EP
access it, which total approximately 400 additional kilometres.” For 120 kilometers of its total Alexander in the boundary question between Costa Rica and Nicaragua, reprinted United Nations,
length the Road follows the bank of the San Juan River, i.e. , from the point at which the border Reports of International Arbitral Awards , Vol. XXVIII (2007) pp.223- 225, San Juan del Norte,
meets the right bank of the river, at Castillo Viejo, to the point at which the Colorado River 20 December 1897; Third Award of the Umpire EP Alexander in the boundary q uestion between
branches off from the San Juan. Costa Rica and Nicaragua, reprinted United Nations,
419Treaty of Limits between Nicaragua and Costa Rica, 15 April 1858 ( NM, Vol. II, Annex 5). Vol. XXVIII (2007) pp.227- 230, San Juan del Norte, 22 March 1898; Fourth Award of the
420Ibid., Art. II. Umpire EP Alexander in the boundary question between Costa R
421
Legality of the Threat or Use of NuclearWeapons , Advisory Opinion, I. C. J. Reports 1996, United Nations, Reports of International Arbitral Awards,
p. 241, para. 29. Greytown, 26 July 1899. (NM, Vol. II, Annex 6 (2)(3)(4)(5)). B . COSTA RICA BREACHED ITS OBLIGATION TO AS SESS of the area which would wash soil and debris into the river,
THE ENVIRONMENTAL IM PACT OF THE ROAD, ON
BOTH THE NATIONAL AND TRANSBOUNDARY evident considerations.
LEVELS
1 . The National Level
“proposal” was shrouded in secrecy – was “subject to a decision of a competent
5. 6 The obligation to assess the environmental impact of proposed
national authority.” In this case the “competent national authority” was
activities is one of long standing. First introduced in national legislation in the
exceptionally, “The President of the Republic and the Minister of the Presidency”
425
late 1960s, this obligation was recognized in Principle 17 of the 1992 Rio
according to Costa Rica’s decree declaring a State of Emergency along the border
Declaration on Environment and Development in the following terms:
with Nicaragua. Specifically, the authority for proceeding with the Road project
Principle 17
outside all normal legal procedures was provided by Emergency Decree No.
Environmental impact assessment, as a national
36440-MP, published in the Official Daily Gazette in San José, Costa Rica, on 7
instrument, shall be undertaken for proposed
activities that are likely to have a significant
adverse impact on the environment and are subject March 2011,
426
to a decision of a competent national authority. Presidency.
5. 7 There seems little doubt that it would have been obvious to the
the violation of Costa Rican sovereignty on the part of Nicaragua
government of Costa Rica that its Road project was “likely to have a significant
state of emergency”.
adverse impact on the environment” in view of its length and its route through
areas that are in part heavily forested, not to mention that it was to run along a
which we now know was made without any prior planning, impact assessment, or
river which could not escape being impacted in view of its proximity to the route
even blueprints,
of the Road, the river’s location below the Road, the torrential rains characteristic
Rica. T he By-Laws and Regulations adopted on 21 September 2011 by Costa
427
Design Plan”, 23 May 2012, (NM, Vol. II, Annex 31) quoting a partner of one of the construction
companies involved in the Road project as observin
425National Environmental Policy Act of 1969, Volume 42 United States Code §§ 4321- 4347. drainage: “A great deal of the investment might end up lost with a few rainfalls.”
426Rio Declaration on Environment and Development, adopted by the United Nations Conference 428
on Environment and Development, Rio de Janeiro, June 14 1992, 31 I.L.M. 874 (1992), Principle 429
17. Plan”, 23 May 2012, (NM, Vol. II, Annex 31).
152 B . COSTA RICA BREACHED ITS OBLIGATION TO AS SESS of the area which would wash soil and debris into the river,
THE ENVIRONMENTAL IM PACT OF THE ROAD, ON
BOTH THE NATIONAL AND TRANSBOUNDARY evident considerations.
LEVELS 5. 8
1 . The National Level
“proposal” was shrouded in secrecy – was “subject to a decision of a competent
5. 6 The obligation to assess the environmental impact of proposed
national authority.” In this case the “competent national authority” was
activities is one of long standing. First introduced in national legislation in the
exceptionally, “The President of the Republic and the Minister of the Presidency”
425
late 1960s, this obligation was recognized in Principle 17 of the 1992 Rio
according to Costa Rica’s decree declaring a State of Emergency along the border
Declaration on Environment and Development in the following terms:
with Nicaragua. Specifically, the authority for proceeding with the Road project
Principle 17
outside all normal legal procedures was provided by Emergency Decree No.
Environmental impact assessment, as a national
36440-MP, published in the Official Daily Gazette in San José, Costa Rica, on 7
instrument, shall be undertaken for proposed
activities that are likely to have a significant
adverse impact on the environment and are subject March 2011,
426
to a decision of a competent national authority. Presidency.
5. 7 There seems little doubt that it would have been obvious to the
the violation of Costa Rican sovereignty on the part of Nicaragua
government of Costa Rica that its Road project was “likely to have a significant
state of emergency”.
adverse impact on the environment” in view of its length and its route through
5. 9
areas that are in part heavily forested, not to mention that it was to run along a
which we now know was made without any prior planning, impact assessment, or
river which could not escape being impacted in view of its proximity to the route
even blueprints,
of the Road, the river’s location below the Road, the torrential rains characteristic
Rica. T he By-Laws and Regulations adopted on 21 September 2011 by Costa
427See La Nación, Costa Rica, “ Conavi Built a Dirt Road along the Border without a single
Design Plan”, 23 May 2012, (NM, Vol. II, Annex 31) quoting a partner of one of the construction
companies involved in the Road project as observin
425National Environmental Policy Act of 1969, Volume 42 United States Code §§ 4321- 4347. drainage: “A great deal of the investment might end up lost with a few rainfalls.”
426Rio Declaration on Environment and Development, adopted by the United Nations Conference 42Decree No. 36440 (NM, Vol. II, Annex 11) .
on Environment and Development, Rio de Janeiro, June 14 1992, 31 I.L.M. 874 (1992), Principle 429La Nación, Costa Rica,“Conavi Built a Dirt Road along the Border without a single Des
17. Plan”, 23 May 2012, (NM, Vol. II, Annex 31). Rica’s National Commission on Risk Prevention and Attention to Emergencies, studies, a situation that was corroborated through use of the CFIA database where
Presidency of the Republic, recite that: there is no record of the project.”
“the specific nature of the event that created the
emergency, which was an act of aggression on the
part of the neighbor country of Nicaragua, imposes
taking actions that are different from those
generally carried out under the regimen of
exception and under the control of the Na tional
Commission on Risk Prevention and Attention to
430
Emergencies . . . .”
5. 10 Remarkably, these “actions that are different from those
generally carried out” included proceeding without the prior preparation of an
environmental impact assessment, required by Costa Rican law, 431 or even any
432
blueprints for the Road project , a normal prerequisite to such a significant
undertaking.
5. 11 The Preliminary Report of the Association of Federated Engineers
and Architects of Costa Rica (CFIA by its Spanish acronym) confirms this, in the
matter-of-fact language of engineers: “The project has no plans or preliminary
430Decree No. 0362 – 2011, preamble, para. 2. (NM, Vol. II, Annex 12).
431 Mr. Uriel Juárez, Secretary General of Costa Rica’s National Environmental Technical
Secretariat (SETENA by its Spanish acronym) acknowledged that his agency was not consulted,
nor was its guidance on the highway and its possible risks requested. University Seminar , Costa
Rica, “Environmental damage feared due to construction of highway parallel to Rio San Juan”, 1
432ember 2011, (NM, Vol. II, Annex 22) .
See CFIA Report, p. 25, para. 5.2. (NM, Vol. II, Annex 4) ; See also CONAVI Press Release,
25 May 2012 (NM, Vol.II, Annex 34 ); La Nación, Costa Rica, “Conavi Built a Dirt Road along
the Border without a Single Design Plan”, 23 Ma y 2012 (NM, Vol. II, Annex 31); El Pais, Costa
Rica, “Faced with Criticism, Conavi Confirms to Have Done Work on 332 Kilometers of Roads the Road is confirmed by an official of one of the construction companies
around Route 1856”, 26 May 2012 (NM, Vol. II, Annex 32); and Diario Extra , Costa Rica
“Government acknowledges mistakes in the construction of the trail”, 30 May 2012 (NM, Vol. II,
Annex 36) also available at available at http://www.diarioextra.com/2012/mayo/30/ 433
nacionales13.php (last visited 5 December). 434
154Rica’s National Commission on Risk Prevention and Attention to Emergencies, studies, a situation that was corroborated through use of the CFIA database where
Presidency of the Republic, recite that: there is no record of the project.”
“the specific nature of the event that created the
emergency, which was an act of aggression on the
part of the neighbor country of Nicaragua, imposes
taking actions that are different from those
generally carried out under the regimen of
exception and under the control of the Na tional
Commission on Risk Prevention and Attention to
430
Emergencies . . . .”
5. 10 Remarkably, these “actions that are different from those
generally carried out” included proceeding without the prior preparation of an
environmental impact assessment, required by Costa Rican law, 431 or even any
432
blueprints for the Road project , a normal prerequisite to such a significant
undertaking.
5. 11 The Preliminary Report of the Association of Federated Engineers
and Architects of Costa Rica (CFIA by its Spanish acronym) confirms this, in the
matter-of-fact language of engineers: “The project has no plans or preliminary
430Decree No. 0362 – 2011, preamble, para. 2. (NM, Vol. II, Annex 12).
431Mr. Uriel Juárez, Secretary General of Costa Rica’s National Environmental Technical
Secretariat (SETENA by its Spanish acronym) acknowledged that his agency was not consulted,
nor was its guidance on the highway and its possible risks requested. University Seminar , Costa
Rica, “Environmental damage feared due to construction of highway parallel to Rio San Juan”, 1 But not, apparently, if an Emergency Decree dictates to the contrary.
432ember 2011, (NM, Vol. II, Annex 22) .
See CFIA Report, p. 25, para. 5.2. (NM, Vol. II, Annex 4) ; See also CONAVI Press Release,
25 May 2012 (NM, Vol.II, Annex 34 ); La Nación, Costa Rica, “Conavi Built a Dirt Road along 5. 12
the Border without a Single Design Plan”, 23 Ma y 2012 (NM, Vol. II, Annex 31); El Pais, Costa
Rica, “Faced with Criticism, Conavi Confirms to Have Done Work on 332 Kilometers of Roads the Road is confirmed by an official of one of the construction companies
around Route 1856”, 26 May 2012 (NM, Vol. II, Annex 32); and Diario Extra , Costa Rica
“Government acknowledges mistakes in the construction of the trail”, 30 May 2012 (NM, Vol. II,
Annex 36) also available at available at http://www.diarioextra.com/2012/mayo/30/ 433CFIA Report, op. cit. supra, p. 25, para. 5.2. (NM, Vol. II, Annex 4)
nacionales13.php (last visited 5 December). 434Ibid., paras. 5.3-5.6. involved in the project: “We are in the XXI Century. This requires a design …. purportedly “resulting from the violation of Costa Rican sovereignty by
To think about making 150 kilometers with just machines, without design … I’m Nicaragua, on Isla Calero in particular, as well as the environmental damage
435
referring to mere professional diligence … it is not done in this manner”. infringed on national territory . . . .”.
5. 13 Costa Rica’s Administrative Environmental Court (TAA, its
Spanish acronym) confirmed excessive felling of trees and found clearings that Rican sovereignty by Nicaragua, on Isla Calero ” to the Court in 2010 in Certain
436
were more than eight times the established width of the Road. The TAA found Activities carried out by Nicaragua in the Border Area, a case relating to the
that “[t]ree felling at the edge of the trail was not rational, limited or proportional Lower San Juan de Nicaragua River area, below the point at which the Colorado
437
for purposes of the road . . . .” It further determined that along the first 49 branch splits off from the main San Juan
kilometers of the Road alone that specialists inspected, more than ten wetlands with the provisional measures it sought and which were indicated by the Court in
and water bodies were affected, and that at least seven different watercourses that case,
438
were damaged. The Environmental Court found that substantial and in many adjudication by the International Court of justice in general, Costa Rica decided
cases excessive movements of land had been effected without making the to take matters into its own hands, adopting unilateral measures, including
439
corresponding conservation works. Evidently in desperation, the construction construction of the Road. That Costa Rica’s decision to construct the Road was a
companies are said to have “placed sarán to retain sediments” , something that reaction to Nicaragua’s activities in the border area in the Lower San Juan
would be comical were it not for the obvious fact that “this doe s not work to Nicaragua is confirmed by the By
440
retain such amounts of sediment.” September 2011 by Costa Rica’s National Commission on Risk Prevention and
5. 14 The rationale for dispensing with the normal requirements for Attention to Emergiencies, discussed above. This is precisely the kind of action
such a massive construction project appears to have been the “emergency” the Court has disapproved of in the past.
435 Consular Staff in Tehran , the United States undertook an operation to rescue its
La Nación, Costa Rica, “Conavi Built a Dirt Road along the Border without a single Design
436n”, 23 May 2012. (NM, Vol. II, Annex 31).
El País, Costa Rica, “Environmental Court Confirmed Ex cessive Felling for Construction of
4376 Trail”, July 15, 2012. (NM, Vol. II, Annex 37).
438Ibid. 441
Ibid.
439Ibid. 442
440Ibid. Request for the Indication of Provisional Measures, Order of 8 March 2011.
156involved in the project: “We are in the XXI Century. This requires a design …. purportedly “resulting from the violation of Costa Rican sovereignty by
To think about making 150 kilometers with just machines, without design … I’m Nicaragua, on Isla Calero in particular, as well as the environmental damage
435
referring to mere professional diligence … it is not done in this manner”. infringed on national territory . . . .”.
5. 13 Costa Rica’s Administrative Environmental Court (TAA, its 5. 15
Spanish acronym) confirmed excessive felling of trees and found clearings that Rican sovereignty by Nicaragua, on Isla Calero ” to the Court in 2010 in Certain
436
were more than eight times the established width of the Road. The TAA found Activities carried out by Nicaragua in the Border Area, a case relating to the
that “[t]ree felling at the edge of the trail was not rational, limited or proportional Lower San Juan de Nicaragua River area, below the point at which the Colorado
437
for purposes of the road . . . .” It further determined that along the first 49 branch splits off from the main San Juan
kilometers of the Road alone that specialists inspected, more than ten wetlands with the provisional measures it sought and which were indicated by the Court in
and water bodies were affected, and that at least seven different watercourses that case,
438
were damaged. The Environmental Court found that substantial and in many adjudication by the International Court of justice in general, Costa Rica decided
cases excessive movements of land had been effected without making the to take matters into its own hands, adopting unilateral measures, including
439
corresponding conservation works. Evidently in desperation, the construction construction of the Road. That Costa Rica’s decision to construct the Road was a
companies are said to have “placed sarán to retain sediments” , something that reaction to Nicaragua’s activities in the border area in the Lower San Juan
would be comical were it not for the obvious fact that “this doe s not work to Nicaragua is confirmed by the By
440
retain such amounts of sediment.” September 2011 by Costa Rica’s National Commission on Risk Prevention and
5. 14 The rationale for dispensing with the normal requirements for Attention to Emergiencies, discussed above. This is precisely the kind of action
such a massive construction project appears to have been the “emergency” the Court has disapproved of in the past.
435 Consular Staff in Tehran , the United States undertook an operation to rescue its
La Nación, Costa Rica, “Conavi Built a Dirt Road along the Border without a single Design
436n”, 23 May 2012. (NM, Vol. II, Annex 31).
El País, Costa Rica, “Environmental Court Confirmed Ex cessive Felling for Construction of
4376 Trail”, July 15, 2012. (NM, Vol. II, Annex 37).
438Ibid. 441
Ibid. Decree No. 0362 – 2011, preamble, para. 1. (NM, Vol. II, Annex 12).
439Ibid. 442Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
440Ibid. Request for the Indication of Provisional Measures, Order of 8 March 2011. hostages during the pendency of proceedings before the Court concerning those
hostages. The Court stated: response to alleged environmental damage is the causing of far greater
The Court therefore feels bound to observe that an environmental damage to both countries involved, Costa Rica’s Road project is
operation undertaken in those circumstances, from
whatever motive, is of a kind calculated to not situated anywhere near Isla Calero, or Harbor Head, the location of the tiny
undermine respect for the judicial process in
international relations; and to recall that in parcel of some 250 hectares of uninhabited swampland near the mouth of the San
paragraph 47, 1 B, of its Order of 15 December
1979 the Court had indicated that no action was to Juan de Nicaragua River
be taken by either party which might aggravate the
tension between the two countries. 443 sovereignty. In addition to its lack of proximity to Harbor Head, the Road in fact
The circumstances in the present case are directly analogous: Costa Rica brought ends where the Colorado River branches off from the San Juan
a case against Nicaragua concerning Certain Activities Carried Out by Nicaragua there is, at least as yet, no br
in the Border Area and then proceeded with its Road project, which it asserted to
Emergency Decree was issued four months after the dispute arose
be in response to Nicaragua’s “activities” in the border area. It did this despite Harbor Head/Isla Calero, a delay that calls into question whether the dispute was
the Court’s Provisional Measures Order of 8 March 2011, which, inter alia ,
the true reason for the emergency declaration. The Road thus bears no apparent
indicated unanimously in paragraph 86 (3) that: “Each Party shall refrain from relation to the area in dispute in the Certain Activities
any action which might aggravate or extend the dispute before the Court or make
appear to be a complete pretext for the rash
it more difficult to resolve; ….” Costa Rica, in proceeding with its Road project without conducting any prior studies.
during the pendency of its Certain Activities case and despite the Court’s
Provisional Measures Order in that case, may therefore be said to have “villages on the border with Nicaragua” in which a State of Emergency is
undertaken an operation “of a kind calculated to undermine respect for the declared. These villages
444
judicial process in international relations”. removed from the area in dispute in the Certain Activities
445
443United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), San Carlos and Pocosol Rivers”. CFIA Report, op. cit. supra, p. 2, para. 1.3. (NM, Vol. II, Annex
I.C.J. Reports 1980, p. 3, at p. 43, para. 93. 4).
444Ibid. 446
158hostages during the pendency of proceedings before the Court concerning those 5. 16
hostages. The Court stated: response to alleged environmental damage is the causing of far greater
The Court therefore feels bound to observe that an environmental damage to both countries involved, Costa Rica’s Road project is
operation undertaken in those circumstances, from
whatever motive, is of a kind calculated to not situated anywhere near Isla Calero, or Harbor Head, the location of the tiny
undermine respect for the judicial process in
international relations; and to recall that in parcel of some 250 hectares of uninhabited swampland near the mouth of the San
paragraph 47, 1 B, of its Order of 15 December
1979 the Court had indicated that no action was to Juan de Nicaragua River
be taken by either party which might aggravate the
tension between the two countries. 443 sovereignty. In addition to its lack of proximity to Harbor Head, the Road in fact
The circumstances in the present case are directly analogous: Costa Rica brought ends where the Colorado River branches off from the San Juan
a case against Nicaragua concerning Certain Activities Carried Out by Nicaragua there is, at least as yet, no br
in the Border Area and then proceeded with its Road project, which it asserted to
Emergency Decree was issued four months after the dispute arose
be in response to Nicaragua’s “activities” in the border area. It did this despite Harbor Head/Isla Calero, a delay that calls into question whether the dispute was
the Court’s Provisional Measures Order of 8 March 2011, which, inter alia ,
the true reason for the emergency declaration. The Road thus bears no apparent
indicated unanimously in paragraph 86 (3) that: “Each Party shall refrain from relation to the area in dispute in the Certain Activities
any action which might aggravate or extend the dispute before the Court or make
appear to be a complete pretext for the rash
it more difficult to resolve; ….” Costa Rica, in proceeding with its Road project without conducting any prior studies.
during the pendency of its Certain Activities case and despite the Court’s
5. 17 In addition, Article 1 of the Eme
Provisional Measures Order in that case, may therefore be said to have “villages on the border with Nicaragua” in which a State of Emergency is
undertaken an operation “of a kind calculated to undermine respect for the declared. These villages
444
judicial process in international relations”. removed from the area in dispute in the Certain Activities
445According to the CFIA Report, there are also no bridges over “the mouths of the Sarapiqui,
443United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), San Carlos and Pocosol Rivers”. CFIA Report, op. cit. supra, p. 2, para. 1.3. (NM, Vol. II, Annex
I.C.J. Reports 1980, p. 3, at p. 43, para. 93. 4).
444Ibid. 44See Article 1 of the Decree No. 36440 (NM, Vol. II, Annex 11). describing the “factual context” in the Navigational and Related Rights case, the at all. As the Court will be aware from that case, the area involved there
Court observed: “According to Costa Rica, about 450 people, about half of them wetland that is home to a rich assortment of biota but, as far as human habitation
447
Nicaraguans, live along the approximately 140 km of the Costa Rican bank.” is concerned, is inhospitable.
Evidently in an attempt to bring Nicaragua’s activities in Harbor Head within the
definition of a “disaster” in its National Law on Emergencies and Risk the Procrustean bed of its law’s definition of “disaster” in order to justify a
Prevention – which requires that “a population is brought under conditions of colossal and environmentally destructive project having absolutely nothing to do
vulnerability [by a p henomenon] that causes intense disruption of the with what it cites as the cause of the “disaster”, the report of the TAA states:
community’s normal functioning conditions” 448– the Emergency Decree refers to
“the activities illicitly carried out by Nicaragua on Costa Rican territory, which
threaten the life, physical integrity and prope rty of those within national territory
. . . .”49It further states that:
The present declaration of a state of emergency
encompasses all the actions and projects necessary
for the protection of life, physical integrity,
property and the environment, as well as those
necessary for attention, rehabilitation,
reconstruction and restoration of infrastructure,
housing, communications and disrupted production
uninhabited wetland of some 250 hectares
activities as well as all damaged public services
within the zone covered under a rticle 1) of this
Decree . 450 sovereign territory cannot justify a road being constructed far away
5. 18 To read this decree, one would think that the area in dispute in the location, instead t he Road project is justified, according to the Emergency
Certain Activities case was highly populated. On the contrary, no one lives there Decree, by the need to protect and provide services to some 450 people
447
Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) , judgment of 451
13 July 2009, paragraph 98.
448 Decree No. 36440, op. cit. supra, preamble, paragraph X (emphasis added) . (NM, Vol. II, Area of the San Juan River”, 26 July 2012 (NM, Vol. II, Annex 38).
Annex 11). 452
449Ibid., Article 1. 13 July 2009, paragraph 98.
450Ibid., Article 3.
160describing the “factual context” in the Navigational and Related Rights case, the at all. As the Court will be aware from that case, the area involved there
Court observed: “According to Costa Rica, about 450 people, about half of them wetland that is home to a rich assortment of biota but, as far as human habitation
447
Nicaraguans, live along the approximately 140 km of the Costa Rican bank.” is concerned, is inhospitable.
Evidently in an attempt to bring Nicaragua’s activities in Harbor Head within the 5. 19 Thus Costa Rica has attempted to force the actual situation onto
definition of a “disaster” in its National Law on Emergencies and Risk the Procrustean bed of its law’s definition of “disaster” in order to justify a
Prevention – which requires that “a population is brought under conditions of colossal and environmentally destructive project having absolutely nothing to do
vulnerability [by a p henomenon] that causes intense disruption of the with what it cites as the cause of the “disaster”, the report of the TAA states:
community’s normal functioning conditions” 448– the Emergency Decree refers to
“the activities illicitly carried out by Nicaragua on Costa Rican territory, which
threaten the life, physical integrity and prope rty of those within national territory
. . . .”9It further states that:
The present declaration of a state of emergency
encompasses all the actions and projects necessary
for the protection of life, physical integrity,
property and the environment, as well as those
necessary for attention, rehabilitation,
reconstruction and restoration of infrastructure, 5. 20 Since Nicaragua’s cleaning, by hand, of a small caño in an area of
housing, communications and disrupted production
uninhabited wetland of some 250 hectares
activities as well as all damaged public services
within the zone covered under a rticle 1) of this
Decree . 450 sovereign territory cannot justify a road being constructed far away
5. 18 To read this decree, one would think that the area in dispute in the location, instead t he Road project is justified, according to the Emergency
Certain Activities case was highly populated. On the contrary, no one lives there Decree, by the need to protect and provide services to some 450 people
447
Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), judgment of 451
13 July 2009, paragraph 98. El País, Costa Rica, “Road 1856: First Study by the TAA Points Out Impacts to the Protection
448Decree No. 36440, op. cit. supra, preamble, paragraph X (emphasis added) . (NM, Vol. II, Area of the San Juan River”, 26 July 2012 (NM, Vol. II, Annex 38).
Annex 11). 452Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) , judgment of
449Ibid., Article 1. 13 July 2009, paragraph 98.
450Ibid., Article 3. along a stretch of the right bank of the San Juan de Nicaragua around 120
kilometers in length that is far removed from the site involved in the Certain Article 27 of the Vienna Convention on the Law of Treaties, which provides in
Activities case. Costa Rica’s rationale for by -passing its internal laws – and, as relevant part as follows:
will be seen, its international obligations – is thus based upon an illusion that is a
product of its own imagination.
5. 21 A July, 2012 report of Costa Rica’s own Administrative Oppenheim confirms that this is true for failure to perform obligations under
general international law, as well.
Environmental Court (TAA, its Spanish acronym) confirms the lack of any
connection between the Road and Nicaragua’s activities in the Lower San Juan.
5. 22 Also remarkable is the brazenness of Costa Rica with regard to its
not having carried out an environmental impact assessment prior to constructing
the Road, and not having notified or consulted with Nicaragu a concerning the
potential environmental impacts of the project before beginning to implement it.
No less an official than Costa Rica’ s Foreign Minister minced no words in
explaining why the construction of the Road needed no EIA: “This is a sovereign
State Responsibility include the same rule in Article 32, “Irrelevance of internal
project we are carrying out under a decree that exempts us from Environmental
Impact Assessment, that is why we owe no explanations . . . .” 453 law”, which provides as follows:
5. 23 Thus the Foreign Minister seems to be saying that a self -judging
declaration of national emergency, authorizing a project that has no apparent
relation to the claimed emergency, trumps any inconsistent rules of international
law. 454
(1969), 1155 U.N.T.S. 331, 8 I.L.M. 679 (1969).
455
Longman, London & New York.
453El Nuevo Diario, Nicaragua, “Outrage everywhere over Sa n Juan River parallel highway. No 456
studies Done for Costa Rican Highway”, 15 December 2011. (NM, Vol. II, Annex 25). International Law Commission at its fifty -third session (2001), Report of the International Law
162along a stretch of the right bank of the San Juan de Nicaragua around 120 5. 24 This kind of reasoning runs afoul of the principle expressed in
kilometers in length that is far removed from the site involved in the Certain Article 27 of the Vienna Convention on the Law of Treaties, which provides in
Activities case. Costa Rica’s rationale for by -passing its internal laws – and, as relevant part as follows:
will be seen, its international obligations – is thus based upon an illusion that is a
product of its own imagination.
5. 21 A July, 2012 report of Costa Rica’s own Administrative Oppenheim confirms that this is true for failure to perform obligations under
general international law, as well.
Environmental Court (TAA, its Spanish acronym) confirms the lack of any
connection between the Road and Nicaragua’s activities in the Lower San Juan.
5. 22 Also remarkable is the brazenness of Costa Rica with regard to its
not having carried out an environmental impact assessment prior to constructing
the Road, and not having notified or consulted with Nicaragu a concerning the
potential environmental impacts of the project before beginning to implement it.
No less an official than Costa Rica’ s Foreign Minister minced no words in
explaining why the construction of the Road needed no EIA: “This is a sovereign 5. 25
State Responsibility include the same rule in Article 32, “Irrelevance of internal
project we are carrying out under a decree that exempts us from Environmental
Impact Assessment, that is why we owe no explanations . . . .” 453 law”, which provides as follows:
5. 23 Thus the Foreign Minister seems to be saying that a self -judging
declaration of national emergency, authorizing a project that has no apparent
relation to the claimed emergency, trumps any inconsistent rules of international
law. 454Vienna Convention on the Law of Treaties, 22 May 1969, U.N. Doc. A/CONF.39/27, at p. 289
(1969), 1155 U.N.T.S. 331, 8 I.L.M. 679 (1969).
455 Oppenheim’s International Law , Volume 1, pp. 82-
Longman, London & New York.
453El Nuevo Diario, Nicaragua, “Outrage everywhere over Sa n Juan River parallel highway. No 456 Draft articles on Responsibility of states for internationally wrongful acts, adopted by the
studies Done for Costa Rican Highway”, 15 December 2011. (NM, Vol. II, Annex 25). International Law Commission at its fifty -third session (2001), Report of the International Law 5. 26 A national emergency decree authorizing actions that are comply with treaty obligations revives.”
contrary to international law is thus “simply one of the facts tending to establish obligations under general international law. In any
[Costa Rica’s] breach of its international obligations, and does not establish on relied on “necessity” as a circumstance precluding the wrongfulness of its various
the international plane the lawfu lness of [Costa Rica’s] action, however much it breaches connected with the Road project, perhaps because that would be to
may do so on the national plane.” Costa Rica is therefore internationally admit that it had committed wrongful acts.
responsible for failing to fulfill its obligations of environmental impact
assessment under international law, on both the national a nd transboundary for the Road, but only after the bulk of the construction work had been done.
levels. As a matter of law, this is no more than a jural
5. 27 It follows that none of the obligations discussed in this chapter does not fulfill Costa Rica’s obligation to prepare an environmental impact
can be avoided by declaring a “State of Emergency”. Costa Rica has not argued assessment before undertaking “activities that are likely to have a significant
that the so -called “emergency” constituted a “state of necessity”. As the adverse impact on the environment” .
Gabčíkovo case showed, 457 proof of the existence of necessity as a circumstance document is wholly inadequate as an assessment of the environmental impact of
precluding wrongfulness would be extremely difficult, requiring as it does, inter the Road project.
alia, a showing that the act (here the construction of the road) “is the only way for
the State to safegu ard an essential interest against a grave and imminent peril no environmental impact assessment, Costa Rica acted contrary to the obligation
….” 458 That situation clearly is not present in this case. Even if it were, quod reflected in Principle 17 of the Rio Declaration
non, it would only temporarily suspend Costa Rica’s obligation not to allow its impact assessment “as a national instrument”
territory to be used in a manner t hat results in harm to Nicaragua. As the Court required by Costa Rican law but would be part and parcel of undertaking an
said in Gabčíkovo, “[a]s soon as the state of necessity ceases to exist, the duty to assessment of the environmental impact of the Road in a transboundary context
as required by general international law.
Commission on the work of its Fifty -third sessio n, [2001] Yearbook of the International
Commission, Vol. II, Part Two, p. 26, Art. 32, p. 94.
457Gabčíkovo, op. cit. supra, pp. 39-46. 459
458Draft articles on Responsibility of States for internationally wrongful acts, op. cit. supra, Art. 460
25, para. 1(a), p. 80. 461
164 5. 26 A national emergency decree authorizing actions that are comply with treaty obligations revives.”
contrary to international law is thus “simply one of the facts tending to establish obligations under general international law. In any
[Costa Rica’s] breach of its international obligations, and does not establish on relied on “necessity” as a circumstance precluding the wrongfulness of its various
the international plane the lawfu lness of [Costa Rica’s] action, however much it breaches connected with the Road project, perhaps because that would be to
may do so on the national plane.” Costa Rica is therefore internationally admit that it had committed wrongful acts.
responsible for failing to fulfill its obligations of environmental impact 5. 28
assessment under international law, on both the national a nd transboundary for the Road, but only after
levels. As a matter of law, this is no more than a jural
5. 27 It follows that none of the obligations discussed in this chapter does not fulfill Costa Rica’s obligation to prepare an environmental impact
can be avoided by declaring a “State of Emergency”. Costa Rica has not argued assessment before undertaking “activities that are likely to have a significant
that the so -called “emergency” constituted a “state of necessity”. As the adverse impact on the environment” .
Gabčíkovo case showed, 457 proof of the existence of necessity as a circumstance document is wholly inadequate as an assessment of the environmental impact of
precluding wrongfulness would be extremely difficult, requiring as it does, inter the Road project.
alia, a showing that the act (here the construction of the road) “is the only way for 5. 29
the State to safegu ard an essential interest against a grave and imminent peril no environmental impact assessment, Costa Rica acted contrary to the obligation
….” 458 That situation clearly is not present in this case. Even if it were, quod reflected in Principle 17 of the Rio Declaration
non, it would only temporarily suspend Costa Rica’s obligation not to allow its impact assessment “as a national instrument”
territory to be used in a manner t hat results in harm to Nicaragua. As the Court required by Costa Rican law but would be part and parcel of undertaking an
said in Gabčíkovo, “[a]s soon as the state of necessity ceases to exist, the duty to assessment of the environmental impact of the Road in a transboundary context
as required by general international law.
Commission on the work of its Fifty -third sessio n, [2001] Yearbook of the International
Commission, Vol. II, Part Two, p. 26, Art. 32, p. 94.
457Gabčíkovo, op. cit. supra, pp. 39-46. 45Gabčíkovo, op. cit. supra, p. 63, para. 101.
458Draft articles on Responsibility of States for internationally wrongful acts, op. cit. supra, Art. 46Costa Rican Environmental Management Plan (NM, Vol. II, Annex 2).
25, para. 1(a), p. 80. 46Principle 17 of the Rio Declaration, op. cit. supra. 2 . The Transboundary Level Chapter 4 Nicaragua, prepared an environmental impact assessment for the
5. 30 The obligation of a state considering a project that might have dredging project of the San Juan de Nicaragua River that was publicly announced
transboundary impacts to prepare an environmental impact assessment and known by the Costa Rica authorities.
concerning those possible impacts is now well -established. T his has been
confirmed most recently by the Court’s judgment in Pulp Mills on the River to its Road project. It did not respect “the duty of vigilance and prevention which
Uruguay in which the Court referred to: [due diligence] implies”. Therefore, due diligence cannot “be considered to have
“a practice, which in recent years has gained so been exercised, [since] a party planning works liable to affect the régime of the
much acceptance among States that it may now be
considered a requirement under general river or the quality of its waters did not undertake an environmental impact
international law to undertake an environmental
impact assessment where there is a risk that the assessment on the potential effects of such works.”
proposed industrial activity may have a significant
adverse impact in a transboundary context, in
particular, on a shared resource. Moreover, due
diligence, and the duty of vigilance and prevention “[a] State is obliged, as a matter of general international law, to assess the e xtent
which it implies , would not be considered to have
been exercised, if a party planning works liable to to which activities within its jurisdiction will cause harm to other States,
affect the régime of the river or the quality of its
waters did not undertake an environmental impact particularly in areas or regions of shared environmental conditions”.
assessmen462n the potential effects of such
works.” Memorial in that Case, Costa Rica
5. 31 Although Nicaragua’s right to dredge the San Juan de Nicaragua
Foreign Affairs to his Nicaraguan counterpart in which the Costa Rican Minister
River is regulated by the 1858 Treaty 463and arbitral awards 464, as explained in
462
Pulp Mills on the River Uruguay (Argentina v. Uruguay) , judgment of 20 April 2010,
para. 204.
463Treaty of Limits between Nicaragua and Costa Rica, 15 April 1858 ( NM, Vol. II, Annex 5). Umpire EP Alexander in the boundary question
464First Award of the Umpire EP Alexander in the boundary question between Costa Rica and United Nations, Reports of International Arbitral Awards,
Nicaragua, reprinted United Nations, Reports of International Arbitral Awards, Vol. XXVIII Greytown, 26 July 1899. (NM, Vol. II, Annex 6 (2)(3)(4)(5)).
(2007) pp.215-221, San Juan del Norte, 30 September 1897; Second Award of the Umpire EP 465
Alexander in the boundary question between Costa Rica and Nicaragua, reprinted United Nations, environmental impact assessment for the dredging project see the Counter Memorial of Nicaragua
Reports of International Arbitral Awards , Vol. XXVIII (2007) pp.223- 225, San Juan del Norte, (NCM) in the Dispute concerning “Certain Activities Carried Out by Nicaragua in the Border
20 December 1897; Third Award of the Umpire EP Alexander i n the boundary question between 466a (Costa Rica v. Nicaragua)”, Volume I, 6 August 2012, paras. 5.1 – 5.108.
Costa Rica and Nicaragua, reprinted United Nations,Reports of International Arbitral Awards,
Vol. XXVIII (2007) pp.227- 230, San Juan del Norte, 22 March 1898; Fourth Award of the CRM, para. 5.22.
166 2 . The Transboundary Level Chapter 4 Nicaragua, prepared an environmental impact assessment for the
5. 30 The obligation of a state considering a project that might have dredging project of the San Juan de Nicaragua River that was publicly announced
transboundary impacts to prepare an environmental impact assessment and known by the Costa Rica authorities.
concerning those possible impacts is now well -established. T his has been 5. 32 Costa Rica exercised no diligence, due or otherwise, with respect
confirmed most recently by the Court’s judgment in Pulp Mills on the River to its Road project. It did not respect “the duty of vigilance and prevention which
Uruguay in which the Court referred to: [due diligence] implies”. Therefore, due diligence cannot “be considered to have
“a practice, which in recent years has gained so been exercised, [since] a party planning works liable to affect the régime of the
much acceptance among States that it may now be
considered a requirement under general river or the quality of its waters did not undertake an environmental impact
international law to undertake an environmental
impact assessment where there is a risk that the assessment on the potential effects of such works.”
proposed industrial activity may have a significant
adverse impact in a transboundary context, in 5. 33 Costa Rica has itself recognized in the Certain Activities case that
particular, on a shared resource. Moreover, due
diligence, and the duty of vigilance and prevention “[a] State is obliged, as a matter of general international law, to assess the e xtent
which it implies , would not be considered to have
been exercised, if a party planning works liable to to which activities within its jurisdiction will cause harm to other States,
affect the régime of the river or the quality of its
waters did not undertake an environmental impact particularly in areas or regions of shared environmental conditions”.
assessme462on the potential effects of such
works.” Memorial in that Case, Costa Rica
5. 31 Although Nicaragua’s right to dredge the San Juan de Nicaragua
Foreign Affairs to his Nicaraguan counterpart in which the Costa Rican Minister
River is regulated by the 1858 Treaty 463 and arbitral awards 464, as explained in
462
Pulp Mills on the River Uruguay (Argentina v. Uruguay) , judgment of 20 April 2010,
para. 204.
463Treaty of Limits between Nicaragua and Costa Rica, 15 April 1858 ( NM, Vol. II, Annex 5). Umpire EP Alexander in the boundary question
464First Award of the Umpire EP Alexander in the boundary question between Costa Rica and United Nations, Reports of International Arbitral Awards,
Nicaragua, reprinted United Nations, Reports of International Arbitral Awards, Vol. XXVIII Greytown, 26 July 1899. (NM, Vol. II, Annex 6 (2)(3)(4)(5)).
(2007) pp.215-221, San Juan del Norte, 30 September 1897; Second Award of the Umpire EP 465 For a detailed reading on Nicaragua’s exhaustive procedure for the preparation of the
Alexander in the boundary question between Costa Rica and Nicaragua, reprinted United Nations, environmental impact assessment for the dredging project see the Counter Memorial of Nicaragua
Reports of International Arbitral Awards , Vol. XXVIII (2007) pp.223- 225, San Juan del Norte, (NCM) in the Dispute concerning “Certain Activities Carried Out by Nicaragua in the Border
20 December 1897; Third Award of the Umpire EP Alexander i n the boundary question between 466a (Costa Rica v. Nicaragua)”, Volume I, 6 August 2012, paras. 5.1 – 5.108.
Costa Rica and Nicaragua, reprinted United Nations,Reports of International Arbitral Awards, Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)
Vol. XXVIII (2007) pp.227- 230, San Juan del Norte, 22 March 1898; Fourth Award of the CRM, para. 5.22. wetlands, rivers and woodlands of Costa Rica, nor
the Bay of San Juan del Norte. These assessments
must also determine that there will be no impact on impact assessment is a prerequisite” to complying with the duty of the States to
the current flow of the Colo467o River, or of any
other Costa Rican River.” ensure that “activities within their jurisdiction or control do not cause damage to
5. 34 Three points regarding this statement bear emphasis. First, Costa the environment of other States.”
Rica recognizes that an environmental impact assessment must be carried out Costa Rica is certainly correct that in order to comply with it a state must
before any work is begun, something that Costa Rica failed to do in relation to its
investigate whether a proposed project may cause damage to the environment of
Road project. And second, Costa Rica’s Foreign Minister insisted that other states. And yet, in respect of the Road, Costa Rica utterly failed to practice
Nicaragua’s modest dredging project should have “no impact on the current flow
what it preached.
of the Colorado River, or of any other Costa Rican River” (emphasis added),
something of which Costa Rica most certainly could not assure Nicaragua in proposed project that may have adverse transboundary impacts are set out in the
respect of the impact of its Road project on the San Juan de Nicaragua River.
well-known 1991 Convention on Environmental Impact Assessment in a
5. 35 Also In the Certain Activities case, Costa Rica has trumpeted Transboundary Context (the “Espoo Convention”).
“[t]he necessity of a proper environmental impact assessment in order to prevent
Economic Commission for Europe (UNECE),
or minimize transboundary harm,” which it states “is now a well -recognized universal participation
requirement of general international law: the Court recently had the occasion to relating to transboundary environmental impact assessment globally. Among the
declare it [referring to paragraph 204 of the Pulp Mills case], it is embodied in a
considerations recited in the preamble to the convention is that the parties are:
number of instruments, and it is also a requirement of treaties to which Nicaragua
is a party ….” 468
469
Principle 2 (“States have…the responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment of other states or of areas beyond the limits of
470ional jurisdiction”).
467
Ibid., CRM, para. 3.73, p. 104, citing Vol. III, Annex No. 45, Note from the Minister of 4711, Espoo, Finland, 1989 U.N.T.S. 309, 30 I.L.M. 800 (1991) (hereinafter Espoo Convention).
Foreign Affairs and Worship of Costa Rica to the Minister of Foreign Affairs of Nicaragua, Ref:
DM-637-9, 27 August 2009. member states that are not members of the UNECE to become parties to the convention,
468Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua, indicating that its principles are universally applicable. See
CRM, para. 5.23. http://www.unece.org/env/eia/eia.html (last visited 5 December 2012).
168 wetlands, rivers and woodlands of Costa Rica, nor 5. 36 Costa Rica has also confirmed that
the Bay of San Juan del Norte. These assessments
must also determine that there will be no impact on impact assessment is a prerequisite” to complying with the duty of the States to
the current flow of the Color467 River, or of any
other Costa Rican River.” ensure that “activities within their jurisdiction or control do not cause damage to
5. 34 Three points regarding this statement bear emphasis. First, Costa the environment of other States.”
Rica recognizes that an environmental impact assessment must be carried out Costa Rica is certainly correct that in order to comply with it a state must
before any work is begun, something that Costa Rica failed to do in relation to its
investigate whether a proposed project may cause damage to the environment of
Road project. And second, Costa Rica’s Foreign Minister insisted that other states. And yet, in respect of the Road, Costa Rica utterly failed to practice
Nicaragua’s modest dredging project should have “no impact on the current flow
what it preached.
of the Colorado River, or of any other Costa Rican River” (emphasis added), 5. 37
something of which Costa Rica most certainly could not assure Nicaragua in proposed project that may have adverse transboundary impacts are set out in the
respect of the impact of its Road project on the San Juan de Nicaragua River.
well-known 1991 Convention on Environmental Impact Assessment in a
5. 35 Also In the Certain Activities case, Costa Rica has trumpeted Transboundary Context (the “Espoo Convention”).
“[t]he necessity of a proper environmental impact assessment in order to prevent
Economic Commission for Europe (UNECE),
or minimize transboundary harm,” which it states “is now a well -recognized universal participation
requirement of general international law: the Court recently had the occasion to relating to transboundary environmental impact assessment globally. Among the
declare it [referring to paragraph 204 of the Pulp Mills case], it is embodied in a
considerations recited in the preamble to the convention is that the parties are:
number of instruments, and it is also a requirement of treaties to which Nicaragua
is a party ….” 468
469Ibid., CRM, para. 5.22, citing the Río Decl aration on Environment and Development (1992),
Principle 2 (“States have…the responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment of other states or of areas beyond the limits of
470ional jurisdiction”).
467 Convention on Environmental Impact Assessment in a Transboundary Context, 25 February
Ibid., CRM, para. 3.73, p. 104, citing Vol. III, Annex No. 45, Note from the Minister of 4711, Espoo, Finland, 1989 U.N.T.S. 309, 30 I.L.M. 800 (1991) (hereinafter Espoo Convention).
Foreign Affairs and Worship of Costa Rica to the Minister of Foreign Affairs of Nicaragua, Ref: The first amendment to the convention, adopted by the partie
DM-637-9, 27 August 2009. member states that are not members of the UNECE to become parties to the convention,
468Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua, indicating that its principles are universally applicable. See
CRM, para. 5.23. http://www.unece.org/env/eia/eia.html (last visited 5 December 2012). “Conscious of the need to give explicit with the affected Party concerning, inter alia, the potential tra nsboundary impact
consideration to environmental factors at an early
stage in the decision -making process by applying of the proposed activity and measures to reduce or eliminate its impact.”
environmental impact assessment, at all appropriate
administrative levels, as a necessary tool to Indeed, it is difficult to see how a proper transboundary environmental impact
improve the qualit y of information presented to
decision makers so that environmentally sound assessment could be conducted without such consultation, since data and
decisions can be made paying careful attention to
minimizing significant adverse impact, particularly information concerning potentially affected areas in the other state would have to
472
in a transboundary context”.
be provided by that state – in this case, Nicaragua.
5. 38 The convention provides that:
473
“The Party of ori gin shall ensure that in
accordance with the provisions of this Convention follow naturally and logically from the obligation recognized by
an environmental impact assessment is undertaken
prior to a decision to authorize or undertake a474 prepare a transboundary environmental impact assessment.
proposed activity listed in Appendix I that is
likely to cause a significant adverse transboundary observed by Costa Rica, as shown in the previous sub- section. This failure was
475
impact.”
unanimously confirmed by the Central American Court of Justice in its judgment
5. 39 The convention also requires that the Party of origin “ensure that
476 of 21 June 2012 in the following terms:
affected Parties are notified” of such activities and that it provide “an
opportunity to the public in the areas like ly to be affected to participate in
relevant environmental impact assessment procedures regarding proposed
477
activities”. It further requires the Party of origin to “enter into consultations
472
473Ibid., preamble.
The expression “Party of origin” is defined in Article 1 of the convention to mean a party
“under whose jurisdiction a proposed activity is envisaged to take place”. I., Article 1, para.
(ii).
474Appendix I contains a list of activities, inclu ding “motorways” and “express roads” (para. 7)
and “deforestation of large areas” (para. 17). Paragraph 5 of Article 2 provides that at the of the environmental impact of the Road project either within Costa Rica or in
initiative of any concerned party, discussions are to be held on whether an activity not listed in
Appendix I should be treated as if it were so listed.
475
476Espoo Convention, op. cit. supra, Article 2, para. 3.
Ibid., para. 4. This requirement is fleshed out in Article 3 of the convention. “Affected Party”
is defined to mean a party “likely to be affected by the transboundary impact of a proposed 478
activity.” Ibid., Article 1, para. (iii).
477Ibid., Article 2, para. 6. 479
170 “Conscious of the need to give explicit with the affected Party concerning, inter alia, the potential tra nsboundary impact
consideration to environmental factors at an early
stage in the decision -making process by applying of the proposed activity and measures to reduce or eliminate its impact.”
environmental impact assessment, at all appropriate
administrative levels, as a necessary tool to Indeed, it is difficult to see how a proper transboundary environmental impact
improve the qualit y of information presented to
decision makers so that environmentally sound assessment could be conducted without such consultation, since data and
decisions can be made paying careful attention to
minimizing significant adverse impact, particularly information concerning potentially affected areas in the other state would have to
472
in a transboundary context”.
be provided by that state – in this case, Nicaragua.
5. 38 The convention provides that:
473 5. 40 All of the foregoing principles contained in the Espoo Convention
“The Party of ori gin shall ensure that in
accordance with the provisions of this Convention follow naturally and logically from the obligation recognized by
an environmental impact assessment is undertaken
prior to a decision to authorize or undertake 474 prepare a transboundary environmental impact assessment.
proposed activity listed in Appendix I that is
likely to cause a significant adverse transboundary observed by Costa Rica, as shown in the previous sub- section. This failure was
475
impact.”
unanimously confirmed by the Central American Court of Justice in its judgment
5. 39 The convention also requires that the Party of origin “ensure that
476 of 21 June 2012 in the following terms:
affected Parties are notified” of such activities and that it provide “an
opportunity to the public in the areas like ly to be affected to participate in
relevant environmental impact assessment procedures regarding proposed
477
activities”. It further requires the Party of origin to “enter into consultations
472
473Ibid., preamble.
The expression “Party of origin” is defined in Article 1 of the convention to mean a party
“under whose jurisdiction a proposed activity is envisaged to take place”. I., Article 1, para. 5. 41 Not only did Costa Rica fail to prepare, in advance, an assessment
(ii).
474Appendix I contains a list of activities, inclu ding “motorways” and “express roads” (para. 7)
and “deforestation of large areas” (para. 17). Paragraph 5 of Article 2 provides that at the of the environmental impact of the Road project either within Costa Rica or in
initiative of any concerned party, discussions are to be held on whether an activity not listed in
Appendix I should be treated as if it were so listed.
475
476Espoo Convention, op. cit. supra, Article 2, para. 3.
Ibid., para. 4. This requirement is fleshed out in Article 3 of the convention. “Affected Party”
is defined to mean a party “likely to be affected by the transboundary impact of a proposed 478
activity.” Ibid., Article 1, para. (iii). Ibid., Article 5.
477Ibid., Article 2, para. 6. 479C.A.C.J Judgment, 21 June 2012, Fourth ruling (NM, Vol. II, Annex 13) . Nicaragua, it also failed to perform the more elementary obligation of notifying
Nicaragua of the project and its intent to proceed with it.
C . COSTA RICA BREACHED ITS O BLIGATION TO
PROVIDE PRIOR NOTIFICATION TO NICARAGUA
obligation of prior notification demonstrates its general acceptance and contours
5. 42 It has been generally accepted for at least twenty years , and
and makes plain the extent of Costa Rica’s breaches of that obligation.
probably more, that a state considering a project that may result in harm to
another state must notify that other state of the project in a timely manner. Costa
Rica trumpeted this obligation in its Memorial in the Certain Activities case:
“That States are under a procedural obligation to notify and consult in respect of
those activities which carry a risk of environmental harm to neighbouring States
is an uncontroversial rule of general international law, extending from the Lac
Lanoux arbitration to Principle 19 of the Rio Declaration ….” 480 Yet Costa Rica Activities
did not observe this “uncontroversial rule” in respect of its Road project. In fact, project, is echoed in all of the relevant instruments. For example, Article 3,
as has been seen in Chapter 3, it baldly denied any obligation to do so. Notification, of the 1991 Espoo Convention provides in part as follows:
5. 43 As with the obligation to conduct an environmental impact
assessment, Costa Rica “ honors” the obligation of prior notification and
consultation more in the breach than the observance. This fact was not lost on
the Central American Court of Justice, which made the following ruling in its
judgment of 21 June 2012:
THIRD: The State of Costa Rica acted without
consultation, in a unilateral, inappropriate and
481
482
480Certain Activities carried out by Nicaragua in the der Area (Costa Rica v. Nicaragua) , on Environment and Development, 1992, U.N. Doc. A/CONF. 151/26 (Vol. I), Principle 19.
CRM, para. 5.5, p. 200. 483
172Nicaragua, it also failed to perform the more elementary obligation of notifying
Nicaragua of the project and its intent to proceed with it.
C . COSTA RICA BREACHED ITS O BLIGATION TO 5. 44 The following review of illustrative authorities supporting the
PROVIDE PRIOR NOTIFICATION TO NICARAGUA
obligation of prior notification demonstrates its general acceptance and contours
5. 42 It has been generally accepted for at least twenty years , and
and makes plain the extent of Costa Rica’s breaches of that obligation.
probably more, that a state considering a project that may result in harm to
5. 45 The 1992 Rio Declaration provides in Principle 19 as follows:
another state must notify that other state of the project in a timely manner. Costa
Rica trumpeted this obligation in its Memorial in the Certain Activities case:
“That States are under a procedural obligation to notify and consult in respect of
those activities which carry a risk of environmental harm to neighbouring States
is an uncontroversial rule of general international law, extending from the Lac 5. 46 This principle, which Costa Rica quotes in its Memorial in Certain
Lanoux arbitration to Principle 19 of the Rio Declaration ….” 480 Yet Costa Rica Activities
did not observe this “uncontroversial rule” in respect of its Road project. In fact, project, is echoed in all of the relevant instruments. For example, Article 3,
as has been seen in Chapter 3, it baldly denied any obligation to do so. Notification, of the 1991 Espoo Convention provides in part as follows:
5. 43 As with the obligation to conduct an environmental impact
assessment, Costa Rica “ honors” the obligation of prior notification and
consultation more in the breach than the observance. This fact was not lost on
the Central American Court of Justice, which made the following ruling in its
judgment of 21 June 2012:
THIRD: The State of Costa Rica acted without
consultation, in a unilateral, inappropriate and
48C.A.C.J Judgment, 21 June 2012, Third ruling. (NM, Vol. II, Annex 13).
482Report of the United Nations Conference on Environment and Development, Rio Declaration
480Certain Activities carried out by Nicaragua in the der Area (Costa Rica v. Nicaragua) , on Environment and Development, 1992, U.N. Doc. A/CONF. 151/26 (Vol. I), Principle 19.
CRM, para. 5.5, p. 200. 483CRM, op. cit. supra, para. 5.5, p. 200. 1. Information on the proposed activity,
including any available information on its of International Watercourses
possible transboundary impact;
2. The nature of the possible decisions; and River per se, in view of the lex specialis
3. An indication of a reasonable time within
which a response under paragraph 3 of this awards interpreting it, which establish Nicaragua’s undisputed sovereignty over
Article is required, taking into account the
nature of the proposed activity; and may the San Juan de Nicaragua River. Nevertheless, the 1997 Convention, which was
include the information set out in paragraph
negotiated on the basis of draft articles prepared by the ILC,sets forth the general
5 of this Article.
3. The affected Party shall respond to the Party of principles applicable to the non- navigational uses of international watercourses
origin within the time specified in the notification,
acknowledging receipt of the notification, and shall and contains a detailed set of nine articles on notification of planned measur
indicate whether it intends to participate in th484
environmental impact assessment procedure. These articles provide an indication of how the notification process should
5. 47 In addition, as noted in Chapter 4, the draft articles on Prevention properly unfold in a case such as the present one.
of Transboundary Harm from Hazardous Activities adopted by the International
Article 11, Information concerning planned measures; Article 12, Notification
Law Commission (ILC) in 2001, after requiring an assessment of possible concerning planned measures with possible adverse effects; Article 13, Period for
transboundary harm entailed by the proposed activity in question in arti cle 7,
reply to notification (the notified State is given six months within which to
provide: reply); Article 14, Obligations of the notifying State during the period for reply
If the assessment referred to in article 7 indicates a (inter alia, not to “implemen
risk of causing significant transboundary harm, the
State of origin shall provide the State likely to be measures without the consent of the notified States”)
affected with timely notification of the risk and the
assessment and shall trans mit to it the available notification; Article 16, Absence of reply to notification; Article 17,
technical and all other relevant information on
485
which the assessment is based. Consultations and negotiations concerning planned measures
Procedures in the absence of notification (a state believing it may be affected by a
486
484 Watercourses, U.N. Doc. A/RES/51/229, Annex, 21 May 1997, Official Records of the General
485Espoo Convention, op. cit. supra, Article 3. Assembly, Fifty -first Session, Supplement No. 49 (A/51/49) (hereinafter “U.N. Wate
Yearbook of the International Law Commission, 2001, vol. II, Part Two, p. 159. Convention”).
174 5. 48 The 1997 Convention on the Law of the Non -Navigational Uses
1. Information on the proposed activity,
including any available information on its of International Watercourses
possible transboundary impact;
2. The nature of the possible decisions; and River per se, in view of the lex specialis
3. An indication of a reasonable time within
which a response under paragraph 3 of this awards interpreting it, which establish Nicaragua’s undisputed sovereignty over
Article is required, taking into account the
nature of the proposed activity; and may the San Juan de Nicaragua River. Nevertheless, the 1997 Convention, which was
include the information set out in paragraph
negotiated on the basis of draft articles prepared by the ILC,sets forth the general
5 of this Article.
3. The affected Party shall respond to the Party of principles applicable to the non- navigational uses of international watercourses
origin within the time specified in the notification,
acknowledging receipt of the notification, and shall and contains a detailed set of nine articles on notification of planned measur
indicate whether it intends to participate in th484
environmental impact assessment procedure. These articles provide an indication of how the notification process should
5. 47 In addition, as noted in Chapter 4, the draft articles on Prevention properly unfold in a case such as the present one.
of Transboundary Harm from Hazardous Activities adopted by the International
Article 11, Information concerning planned measures; Article 12, Notification
Law Commission (ILC) in 2001, after requiring an assessment of possible concerning planned measures with possible adverse effects; Article 13, Period for
transboundary harm entailed by the proposed activity in question in arti cle 7,
reply to notification (the notified State is given six months within which to
provide: reply); Article 14, Obligations of the notifying State during the period for reply
If the assessment referred to in article 7 indicates a (inter alia, not to “implemen
risk of causing significant transboundary harm, the
State of origin shall provide the State likely to be measures without the consent of the notified States”)
affected with timely notification of the risk and the
assessment and shall trans mit to it the available notification; Article 16, Absence of reply to notification; Article 17,
technical and all other relevant information on
485
which the assessment is based. Consultations and negotiations concerning planned measures
Procedures in the absence of notification (a state believing it may be affected by a
486United Nations Convention on the Law of the Non-
484 Watercourses, U.N. Doc. A/RES/51/229, Annex, 21 May 1997, Official Records of the General
485Espoo Convention, op. cit. supra, Article 3. Assembly, Fifty -first Session, Supplement No. 49 (A/51/49) (hereinafter “U.N. Wate
Yearbook of the International Law Commission, 2001, vol. II, Part Two, p. 159. Convention”). project in another state may request the latter to apply the provisions of Article quod non, Costa Rica could make out a case for urgent implementation of
12; during the course of any ensuing consultations and negotiations the state planned measures under article 19 –
planning the measures shall refrain from implementing them at the request of the cannot – in implementing those measures Costa Rica would have to avoid actions
other state); and Article 19, Urgent implementation of planned measures. The that breached Nicaragua’s right of equitable and reasonable utilization of the San
latter article is set forth in full in view of Costa Rica’s Declaration of a State of Juan de Nicaragua and that caused significant harm to Nicaragua. This Costa
Emergency: Rica clearly has not done.
1. In the event that the implementation of planned
measures is of the utmost urgency in order to
protect public health, public safety or other equally 1997 Convention provides as follows:
important interests, the State planning the measures
may, subject to articles 5 and 7, immediately
proceed to implementation, notwithstanding the
provisions of article 14 and paragraph 3 of article
17.
2. In such case, a formal declaration of the urgency
of the measures shall be communicated without
delay to the other watercourse States referred to in
article 12 together with the relevant data and
information.
3. The State planning the measures shall, at the
request of any of the States referred to in paragraph
2, promptly enter into consultations and Article 12 thus requires not only prior notification of planned measures, such as
negotiations with it in the manner indicated in
paragraphs 1 and 2 of article 17.” 487 the Road project, but also that the notification
It will be noted that a state’s right to proceed with the implementation of planned technical data and information, including the results of any environmental impact
measures for the extraordinary reasons of public health, public safety, or the like, assessment”. Costa Rica provided Nicaragua with neither “available technical
is conditioned upon its compliance with Articles 5 and 7 of the Convention. data and information” concerning its Road project, nor “the results of any
Those articles are entitled, respectively, “Equitable and reasonable utilization and environmental impact assessment” on the project. This would in fact have been
participation”, and “Obligation not to cause significant harm”. Thus even if, difficult for Costa Rica to do because, so far as appears, neither existed.
487 488
Ibid., article 19.
176project in another state may request the latter to apply the provisions of Article quod non, Costa Rica could make out a case for urgent implementation of
12; during the course of any ensuing consultations and negotiations the state planned measures under article 19 –
planning the measures shall refrain from implementing them at the request of the cannot – in implementing those measures Costa Rica would have to avoid actions
other state); and Article 19, Urgent implementation of planned measures. The that breached Nicaragua’s right of equitable and reasonable utilization of the San
latter article is set forth in full in view of Costa Rica’s Declaration of a State of Juan de Nicaragua and that caused significant harm to Nicaragua. This Costa
Emergency: Rica clearly has not done.
1. In the event that the implementation of planned 5. 49 As to the obligation of prior notification itself,
measures is of the utmost urgency in order to
protect public health, public safety or other equally 1997 Convention provides as follows:
important interests, the State planning the measures
may, subject to articles 5 and 7, immediately
proceed to implementation, notwithstanding the
provisions of article 14 and paragraph 3 of article
17.
2. In such case, a formal declaration of the urgency
of the measures shall be communicated without
delay to the other watercourse States referred to in
article 12 together with the relevant data and
information.
3. The State planning the measures shall, at the
request of any of the States referred to in paragraph
2, promptly enter into consultations and Article 12 thus requires not only prior notification of planned measures, such as
negotiations with it in the manner indicated in
paragraphs 1 and 2 of article 17.” 487 the Road project, but also that the notification
It will be noted that a state’s right to proceed with the implementation of planned technical data and information, including the results of any environmental impact
measures for the extraordinary reasons of public health, public safety, or the like, assessment”. Costa Rica provided Nicaragua with neither “available technical
is conditioned upon its compliance with Articles 5 and 7 of the Convention. data and information” concerning its Road project, nor “the results of any
Those articles are entitled, respectively, “Equitable and reasonable utilization and environmental impact assessment” on the project. This would in fact have been
participation”, and “Obligation not to cause significant harm”. Thus even if, difficult for Costa Rica to do because, so far as appears, neither existed.
487 488
Ibid., article 19. Ibid., Article 19. 5. 50 As noted in Chapter 2, Nicaragua nonetheless became aware of
Costa Rica’s Road project: it was covered extensively by the Costa Rican media
and, in any event, an undertaking of such massive scale cannot be missed by an
observer on the opposite bank of the San Juan de Nicaragua River, or by
Nicaraguan personnel conducting routine patrols on or over the river. In a note Nicaragua had grounds to believe that Costa Rica was not planning, but actually
dated 29 November 2011, Nicaragua consequently requested that Costa Rica
undertaking (without any prior planning, as it turned out) the Road project.
provide the data and information concerning the project that it should have Nicaragua further had reasonable grou nds to believe that this project , not only
provided sua sponte. 489
might but certainly would have a signi ficant adverse effect upon it. Nicaragua
5. 51 Nicaragua had every right to make this request. Indeed, it is an accordingly, in effect, “requested [Costa Rica] to apply the provisions of article
integral part of the procedural regime under general international law concerning
12” – i.e., to provide timely notification of the pr
projects with possible transboundary implications. Thus, Article 3(7) of the
available technical data and information, including the results of any
Espoo Convention provides as follows:
environmental impact assessment, in order to enable [Nicaragua] to evaluate the
When a Party considers that it would be affected by
a significant adv erse transboundary impact of a possible effects of the planned measures.”
proposed activity listed in Appendix I, and when no
notification has taken place in accordance with accompanied by citations to reports in Costa Rican newspapers that Costa Rica
paragraph 1 of this Article, the concerned Parties
shall, at the request of the affected Party, exchange was “constructing a 120 kilometer road parallel to the border with Nicaragua”
sufficient information for the purposes of holding
discussions on whether there is likely to be a and that the Costa Rican Minister for Public Safety indicated that “the road
490
significant adverse transboundary impact. ….
parallel to the Rio San Juan will be completed in December 2011.”
5. 52 Similarly, Article 18 of the 1997 U.N. Watercourses Convention
commentary on what became Article 18 of the U.N. Watercourses Convention
anticipates and provides for such a situation:
explains that the requirement of a “documented explanation setting forth its [i.e.,
489Diplomatic Note from the Minister of Foreign Affairs of Nicaragua to the Minister of Foreign 491
Affairs of Costa Rica, Ref: MRE/DVM/AJST/500/11/11, 29 November 2011 (NM, Vol. II, 492
Annex 14). The text of the relevant portion of the Note is set forth in Chapter 4 at para. 4.25. 493
490Espoo Convention, op. cit. supra, Article 3(7). Foreign Affairs of Costa Rica of 29 November 2011, op. cit. supra (NM, Vol. II, Annex 14).
178 5. 50 As noted in Chapter 2, Nicaragua nonetheless became aware of
Costa Rica’s Road project: it was covered extensively by the Costa Rican media
and, in any event, an undertaking of such massive scale cannot be missed by an
observer on the opposite bank of the San Juan de Nicaragua River, or by
Nicaraguan personnel conducting routine patrols on or over the river. In a note Nicaragua had grounds to believe that Costa Rica was not planning, but actually
dated 29 November 2011, Nicaragua consequently requested that Costa Rica
undertaking (without any prior planning, as it turned out) the Road project.
provide the data and information concerning the project that it should have Nicaragua further had reasonable grou nds to believe that this project , not only
provided sua sponte. 489
might but certainly would have a signi ficant adverse effect upon it. Nicaragua
5. 51 Nicaragua had every right to make this request. Indeed, it is an accordingly, in effect, “requested [Costa Rica] to apply the provisions of article
integral part of the procedural regime under general international law concerning
12” – i.e., to provide timely notification of the pr
projects with possible transboundary implications. Thus, Article 3(7) of the
available technical data and information, including the results of any
Espoo Convention provides as follows:
environmental impact assessment, in order to enable [Nicaragua] to evaluate the
When a Party considers that it would be affected by
a significant adv erse transboundary impact of a possible effects of the planned measures.”
proposed activity listed in Appendix I, and when no
notification has taken place in accordance with accompanied by citations to reports in Costa Rican newspapers that Costa Rica
paragraph 1 of this Article, the concerned Parties
shall, at the request of the affected Party, exchange was “constructing a 120 kilometer road parallel to the border with Nicaragua”
sufficient information for the purposes of holding
discussions on whether there is likely to be a and that the Costa Rican Minister for Public Safety indicated that “the road
490
significant adverse transboundary impact. ….
parallel to the Rio San Juan will be completed in December 2011.”
5. 52 Similarly, Article 18 of the 1997 U.N. Watercourses Convention
commentary on what became Article 18 of the U.N. Watercourses Convention
anticipates and provides for such a situation:
explains that the requirement of a “documented explanation setting forth its [i.e.,
489Diplomatic Note from the Minister of Foreign Affairs of Nicaragua to the Minister of Foreign 49U.N. Watercourses Convention, op. cit. supra, Article 18, para. 1.
Affairs of Costa Rica, Ref: MRE/DVM/AJST/500/11/11, 29 November 2011 (NM, Vol. II, 49Ibid., Article 12 (modified to apply it to the present facts).
Annex 14). The text of the relevant portion of the Note is set forth in Chapter 4 at para. 4.25. 493See Diplomatic Note from the Minister of Foreign Affairs of Nicaragua to the Minister of
490Espoo Convention, op. cit. supra, Article 3(7). Foreign Affairs of Costa Rica of 29 November 2011, op. cit. supra (NM, Vol. II, Annex 14). Nicaragua’s] reasons” is “intended to require that the requesting State have more
than a vague and unsubstantiated apprehension. A serious and substantiated
494
belief is necessary ….” . Nicaragua in fact had more than a “serious and
substantiated belief” since, in addition to the Costa Rican press accounts, the
Road project was visible from the San Juan River’s left (Nicaraguan) bank, as
495
shown in the following photographs annexed to the Application.
496
Figure 5 .1
497
and lists eight blows to the river", 12 december 2011. (Application Instituting Proceedings, 22
494Report of the International Law Commission on the Work o f Its Forty-Sixth Session, [1994] December 2011, Construction of a Road in Costa Rica along the San Juan River (Nicaragua vs.
495rbook of the International Law Commission, Vol. II, Part Two, pp. 116 -117. 498ta Rica), Annex 4).
See Application Instituting Proceedings , 22 December 2011, Construction of a Road in Costa
Rica along the San Juan River (Nicaragua vs. Costa Rica) , Annexes 1 and 4-9. in Río San Juan on sight, Violation of sovereignty", 5 December 2011 ( Application Instituting
496Site Visit on the 1st of December, 2011. Note: This photograph was taken from the San Juan Proceedings, 22 December 2011, Construction of a Road in Costa Rica along the San Juan River
de Nicaragua River. (Application Instituting Proceedings, 22 December 2011, Construction of a (Nicaragua vs. Costa Rica), Annex 7).
Road in Costa Rica along the San Juan Riv er (Nicaragua vs. Costa Rica), Annex 1).
180Nicaragua’s] reasons” is “intended to require that the requesting State have more
than a vague and unsubstantiated apprehension. A serious and substantiated
494
belief is necessary ….” . Nicaragua in fact had more than a “serious and
substantiated belief” since, in addition to the Costa Rican press accounts, the
Road project was visible from the San Juan River’s left (Nicaraguan) bank, as
495
shown in the following photographs annexed to the Application.
496
Figure 5 .1
497
El Nuevo Diario, Nicaragua, "Nicaragua requires Costa Rica the immediate halt of the works
and lists eight blows to the river", 12 december 2011. (Application Instituting Proceedings, 22
494Report of the International Law Commission on the Work o f Its Forty-Sixth Session, [1994] December 2011, Construction of a Road in Costa Rica along the San Juan River (Nicaragua vs.
495rbook of the International Law Commission, Vol. II, Part Two, pp. 116 -117. 498ta Rica), Annex 4).
See Application Instituting Proceedings , 22 December 2011, Construction of a Road in Costa El Nuevo Diario, Nicaragua, "Environmentalist corroborate damage by the Costa Rican road
Rica along the San Juan River (Nicaragua vs. Costa Rica) , Annexes 1 and 4-9. in Río San Juan on sight, Violation of sovereignty", 5 December 2011 ( Application Instituting
496Site Visit on the 1st of December, 2011. Note: This photograph was taken from the San Juan Proceedings, 22 December 2011, Construction of a Road in Costa Rica along the San Juan River
de Nicaragua River. (Application Instituting Proceedings, 22 December 2011, Construction of a (Nicaragua vs. Costa Rica), Annex 7).
Road in Costa Rica along the San Juan Riv er (Nicaragua vs. Costa Rica), Annex 1). 499
Figure 5 .4 President of Costa Rica insisted: “We have no reason to offer explanations to the
Government of Nicaragua”.
state is not the sole judge of whether its interests may be affected. This principle
was stated by the tribunal in the
Chapter 4.
December 2011, and went on nevertheless to provide, ex gratia
exposition of the
consequences for Nicaragua of the construction of the Road by Costa Rica:
5. 53 Costa Rica’s dismissive response to Nicaragua’s request for
500
information concerning the Road project has already been noted in Chapter 2.
In particular, in his response, Costa Rica’s foreign minister stated: “Costa Rica
501
considers that the project mentioned is not affecting Nicaraguan territory.” He
went on to invite “the Government of Nicaragua to present formally the reasons
for which it considers that there may be environmental damage or damage to
502
Nicaragua’s interests.” No further information was provided. For her part, the
499
Site Visit on the 1st of December, 2011. Note: This photograph was taken from the San Juan
de Nicaragua River (Application Instituting Proceedings, 22 December 2011, Construction of a
Road in Costa Rica along the San Juan River (Nicaragua vs. Costa Rica) , Annex 8).
500See paras. 2.27-2.33 above.
501 Diplomatic Note from the Minister of Foreign Affairs and Worship of Costa Rica to the
Minister of Foreign Affairs of Nicaragua, Ref: DM -AM-601-11, 29 November 2011 (NM, Vol.
II, Annex 15). 503
502Ibid., See also Diplomatic note from the Minister of Foreign Affairs and Worship of Costa
504logue”, 14 December 2011 (Source: EFE / 13 December 2011) (NM, Vol. II, Annex 24).
Rica to the Minister of Foreign Affairs of Nicaragua, Ref: D VM-AM-286-11, 20 December 2011
(NM, Vol. II, Annex 17). Reports, vol. 24, p. 119.
182 499
Figure 5 .4 President of Costa Rica insisted: “We have no reason to offer explanations to the
Government of Nicaragua”.
5. 54 Costa Rica’s attitude runs directly contrary to the principle that a
state is not the sole judge of whether its interests may be affected. This principle
was stated by the tribunal in the
Chapter 4.
5. 55 Nicaragua reminded Costa Rica of this principle in a note of 10
December 2011, and went on nevertheless to provide, ex gratia
exposition of the
consequences for Nicaragua of the construction of the Road by Costa Rica:
5. 53 Costa Rica’s dismissive response to Nicaragua’s request for
500
information concerning the Road project has already been noted in Chapter 2.
In particular, in his response, Costa Rica’s foreign minister stated: “Costa Rica
501
considers that the project mentioned is not affecting Nicaraguan territory.” He
went on to invite “the Government of Nicaragua to present formally the reasons
for which it considers that there may be environmental damage or damage to
502
Nicaragua’s interests.” No further information was provided. For her part, the
499
Site Visit on the 1st of December, 2011. Note: This photograph was taken from the San Juan
de Nicaragua River (Application Instituting Proceedings, 22 December 2011, Construction of a
Road in Costa Rica along the San Juan River (Nicaragua vs. Costa Rica) , Annex 8).
500See paras. 2.27-2.33 above.
501Diplomatic Note from the Minister of Foreign Affairs and Worship of Costa Rica to the
Minister of Foreign Affairs of Nicaragua, Ref: DM -AM-601-11, 29 November 2011 (NM, Vol.
II, Annex 15). 503 El País , Costa Rica, “Chinchilla Defends Highway Criticized by Nicaragua, Rejects
502Ibid., See also Diplomatic note from the Minister of Foreign Affairs and Worship of Costa
504logue”, 14 December 2011 (Source: EFE / 13 December 2011) (NM, Vol. II, Annex 24).
Rica to the Minister of Foreign Affairs of Nicaragua, Ref: D VM-AM-286-11, 20 December 2011 Lake Lanoux Arbitration (France v. Spain) , Award, 16 November 1957, International Law
(NM, Vol. II, Annex 17). Reports, vol. 24, p. 119. Trying to invert the logic in regard to the
obligations of Costa Rica implies not assuming the
commitments with mother nature, International
Law and the bilateral and multilateral Conventions
and Treaties that your government has subscribed
in defense of the environment and biodiversity,
among which we can mention the Regional
Convention for the Management and Conservation
of the Natural Forest Ecosystems and the
Development of Forest Plantations signed in
Guatemala on 29th October 1993, the Stockholm
Declaration, the Rio Declaration, Agenda 21 and
the February 2, 1971 Convention on Wetlands of
International Importance especially as Waterfowl
Habitat (RAMSAR), whose Article 5 was
highlighted in paragraph 79 of the Order of the
International Court of Justice dated March 8 2011:
‘Article 5. - The contracting parties shall consult
with each other about implementing obligations
arising from the Convention especially in the case
of a wetland extending over the territories of more
than one Contracting Party or where a water system
is shared by Contracting Parties. They shall at the
same time endeavor to coordinate and support
present and future policies and regulations
concerning the conservation of wetlands and their
flora and fauna’.
The Government of Costa Rica, far from informing
its own people and Nicaragua about the project, has
hidden it from them. Furthermore, high -ranking
people of the government have made misleading
statements in the media by affirming that the
project was suspended.
Independently of the above-mentioned, it is evident
that the construction of the road seriously affects
the environment and the rights of Nicaragua. If the
project is not ceased it would have irreversible and
transcendental ecological and environmental
consequences.
Among the many consequences that can be
highlighted are the following:
184Trying to invert the logic in regard to the 1. Dumping of trees and soil along the route of the
obligations of Costa Rica implies not assuming the road into the river flow, making more difficult and
commitments with mother nature, International risking the navigation in its waters, over which
Law and the bilateral and multilateral Conventions Nicaragua has the dominion and sovereign
and Treaties that your government has subscribed jurisdiction based on the Treaty of 15th April 1858
in defense of the environment and biodiversity, and the Cleveland Award of 22nd March 1888.
among which we can mention the Regional 2. Removal and sedimentation of fragile soils
Convention for the Management and Conservation resulting in an increased and excessive
of the Natural Forest Ecosystems and the sedimentation of the waters of the Nicaraguan river.
Development of Forest Plantations signed in 3. Impact over the hydrological resources,
Guatemala on 29th October 1993, the Stockholm particularly affecting fishing in the river because of
Declaration, the Rio Declaration, Agenda 21 and the changes in the quality of the water.
the February 2, 1971 Convention on Wetlands of 4. Destruction of the natural habitat of the bank by
International Importance especially as Waterfowl removing the immediate vegetation to the river
Habitat (RAMSAR), whose Article 5 was flow for the construction of the road, affecting the
highlighted in paragraph 79 of the Order of the tree diversity around it.
International Court of Justice dated March 8 2011: 5. Interception of the natural flow of the waters that
‘Article 5. - The contracting parties shall consult flow through the south basin to the San Juan River
with each other about implementing obligations by modifying the drainage of the surrounding
arising from the Convention especially in the case wetlands at the lower San Juan and its delta.
of a wetland extending over the territories of more 6. Erosion of the soil banks in places where a
than one Contracting Party or where a water system certain slo pe exists and resulting in the
is shared by Contracting Parties. They shall at the sedimentation of clay soils to the San Juan of
same time endeavor to coordinate and support Nicaragua River.
present and future policies and regulations 7. Decrease or alteration of the aquatic life due to
concerning the conservation of wetlands and their the water cloudiness resulting from the sediments
flora and fauna’. of the road construction.
The Government of Costa Rica, far from informing 8. Destruction of the inherent
its own people and Nicaragua about the project, has eco-tourism potential of the river course.
hidden it from them. Furthermore, high -ranking I point out that the above list does not exhaust all
people of the government have made misleading the consequences and responsibilities of Costa Rica
statements in the media by affirming that the related to the execution of this project, including the
project was suspended. incursions in Nicaraguan territ
Independently of the above-mentioned, it is evident destruction of the border markers.
that the construction of the road seriously affects The obligation of Costa Rica to inform Nicaragua
the environment and the rights of Nicaragua. If the about the Environmental Impact Assessment prior
project is not ceased it would have irreversible and to the commencement of the project cannot be
transcendental ecological and environmental fulfilled by calling upon facilitators. Nicaragua
consequences. cannot accept anything less than the suspension of
Among the many consequences that can be the project until it has had the chance to receive and
highlighted are the following: analyse the En505onmental Impact Assessment on as shown in Chapter 3 above , and recognized by the CACJ, as will be seen
the project.”
presently. Costa Rica is thus in breach of the fundamental obligation not to cause
5. 56 But far from suspending the project, Costa Rica not only
significant transboundary harm.
continued to proceed with it at reckless speed, but also never provided Nicaragua
with any information on it, least of all an environmental impact assessment.
harmful occupation of Nicaraguan territory
5. 57 In sum, Costa Rica undertook the Road project in violation of the
which, as indicated earlier,
obligation to provide prior notification to Nicaragua, as the state that would be
the 1850s. Indeed, the siltation of the San Juan de Nicaragua River that is caused
likely to be adversely affected by the project. Costa Rica’s excuse for not
by the Road project constitutes a
providing such notification was the same as for failing to prepare environmental
sovereign territory. And there is no doubt that this trespass was and continues to
impact assessments concerning its bulldozing of forest, farm and riverbank: it
had exempted its elf from these obligations by adopting an Emergency Decree, be intentional, in that it was either a deliberate response to Nicaragua’s dredging
project and cleaning of the caño,
even though there was no emergency. Thus, ignoring the well -known principle
follow from the manner in which the Road was constructed.
that a state may not invoke the provisions of its internal law to justify its failure
to perform its international obligations , Costa Rica ran roughshod over both its
transboundary harm, which is traceable to the sovereignty of a state over its
international legal obligations and its own environment, with serious
territory, were reviewed in Chapter 3 ; that survey will not be repeated here.
consequences for Nicaragua.
will suffice for present purposes to recall that the principle that a state
D . COSTA RICA BREACHED ITS OBLIGATION NOT TO
CAUSE SIGNIFICANT TRANSBOUNDARY HARM
506
5. 58 Contrary to offhand statements of Costa Rica’s government
that the project mentioned is not affecting Nicaraguan territory.” Diplomatic
506 Minister of Foreign Affairs and Worship of Costa Rica to the Minister of Foreign Affairs of
officials, its Road project is causing Nicaragua significant transboundary harm, 507aragua, Ref: DM-AM-601-11, 29 November 2011 (NM, Vol. II, Annex 15).
508
Road project, as having been caused by “the violation of Costa Rican sovereignty on th
Nicaragua”. Decree No. 36440, op. cit. supra (NM, Vol. II, Annex 11).
505Diplomatic Note from the Minister of Foreign Affairs of Nicaragua to the Minister of Foreign Regulations adopted to implement the Decree were stated to have been made “necessary by virtue
Affairs of Costa Rica, Ref: MRE/DVS/VJW/0685/1 2/11, Managua, 10 December 2011 (NM, of the emergency resulting from the violation of Costa Rican sovereignty by Nicaragua ….”,
Vol. II, Annex 16). Decree No. 0362-2011, op. cit. supra, paragraph 1. (NM, Vol. II, Annex 12).
186 analyse the En505onmental Impact Assessment on as shown in Chapter 3 above , and recognized by the CACJ, as will be seen
the project.”
presently. Costa Rica is thus in breach of the fundamental obligation not to cause
5. 56 But far from suspending the project, Costa Rica not only
significant transboundary harm.
continued to proceed with it at reckless speed, but also never provided Nicaragua
5. 59 Costa Rica as much as announced its intention to bring about a
with any information on it, least of all an environmental impact assessment.
harmful occupation of Nicaraguan territory
5. 57 In sum, Costa Rica undertook the Road project in violation of the
which, as indicated earlier,
obligation to provide prior notification to Nicaragua, as the state that would be
the 1850s. Indeed, the siltation of the San Juan de Nicaragua River that is caused
likely to be adversely affected by the project. Costa Rica’s excuse for not
by the Road project constitutes a
providing such notification was the same as for failing to prepare environmental
sovereign territory. And there is no doubt that this trespass was and continues to
impact assessments concerning its bulldozing of forest, farm and riverbank: it
had exempted its elf from these obligations by adopting an Emergency Decree, be intentional, in that it was either a deliberate response to Nicaragua’s dredging
project and cleaning of the caño,
even though there was no emergency. Thus, ignoring the well -known principle
follow from the manner in which the Road was constructed.
that a state may not invoke the provisions of its internal law to justify its failure
5. 60 The authorities supporting the
to perform its international obligations , Costa Rica ran roughshod over both its
transboundary harm, which is traceable to the sovereignty of a state over its
international legal obligations and its own environment, with serious
territory, were reviewed in Chapter 3 ; that survey will not be repeated here.
consequences for Nicaragua.
will suffice for present purposes to recall that the principle that a state
D . COSTA RICA BREACHED ITS OBLIGATION NOT TO
CAUSE SIGNIFICANT TRANSBOUNDARY HARM
506
5. 58 Contrary to offhand statements of Costa Rica’s government See, e.g., the statement of Costa Rica’s foreign minister quoted above: “Costa Rica consider s
that the project mentioned is not affecting Nicaraguan territory.” Diplomatic
506 Minister of Foreign Affairs and Worship of Costa Rica to the Minister of Foreign Affairs of
officials, its Road project is causing Nicaragua significant transboundary harm, 507aragua, Ref: DM-AM-601-11, 29 November 2011 (NM, Vol. II, Annex 15).
508ee footnote [1], supra.
The Emergency Decree presented the “state of emergency”, which led to the initiation of the
Road project, as having been caused by “the violation of Costa Rican sovereignty on th
Nicaragua”. Decree No. 36440, op. cit. supra (NM, Vol. II, Annex 11).
505Diplomatic Note from the Minister of Foreign Affairs of Nicaragua to the Minister of Foreign Regulations adopted to implement the Decree were stated to have been made “necessary by virtue
Affairs of Costa Rica, Ref: MRE/DVS/VJW/0685/1 2/11, Managua, 10 December 2011 (NM, of the emergency resulting from the violation of Costa Rican sovereignty by Nicaragua ….”,
Vol. II, Annex 16). Decree No. 0362-2011, op. cit. supra, paragraph 1. (NM, Vol. II, Annex 12). allow its territory to be used in a way that is likely to result in harm to other states Road project. These actions by Costa Rica clearly constitute a breach of the
is a venerable one, and has been applied to the environment in modern decisions obligation not to cause significant transboundary harm.
of the Court 509 and in international instruments such as the 1972 Stockholm
510
Declaration on the Human Environment and the 1992 Rio Declaration on recorded in its judgment of 21 June 2012, confirm the risks posed b
Environment and Development. 511 Indeed, the Court has established that this project for the San Juan de Nicaragua River
obligation “is now part of the corpus of international law relating to the constructed, and some of the harm it had already caused, nearly a year ago:
environment”.
5. 61 As Nicaragua has stated in a report to the Court pursuant to the
Provisional Measures Order of 8 March 2011 in the Certain Activities case, Costa
Rica’s Road’s of 160 km alongside the river has “caused silting of the San Juan
River, erosion of the river banks, disturbances of its natural channels, and harm
to the surrounding ecosystem of wetlands and other protected areas, in addition to
the disruption of natural biological corridors .”512 These for ms of harm to
Nicaragua resulting from Costa Rica’s Road project , as well as others, are
examined in detail in Chapter 3 above. But for present purposes, this summary is
sufficient to indicate the scope of harm to Nicaragua caused by Costa Rica’s
509See Legality of the Threat or Use of Nuclear Weapons , Advisory Opinion, I.C.J. Reports 1996,
pp. 241-242, para. 29, invoked by Costa Rica in tCertain Activities case, CRM, pp. 211 -212,
para. 5.29; Gabčíkovo-Nagymaros Project, Hungary/Slovakia, I.C.J. Reports 1997, p. 7, at p. 41,
para. 53 (hereinafter “Gabčíkovo”); and Pulp Mills on the River Uruguay , Argentina v. Uruguay,
I.C.J. Reports 2010, p. 14, at p. 56, para. 101.
510United Nations Conference on the Human Environment, Stockholm, 5 -16 June 1972, Report
of the U.N. Conference on the Human Environment, 11 I.L.M. 1416 (1972), Principle 21.
511United Nations Conference on Environment and Development, Rio de Janeiro, 3 -14 June
1992, Report of the U.N. Conference on Environment and Development, 31 I.L.M. 874 (1992),
Principle 2.
512 Certain Activities , Nicaragua’s report to the Court on compliance with the Provisional
Measures Order, 23 July 2012.
188allow its territory to be used in a way that is likely to result in harm to other states Road project. These actions by Costa Rica clearly constitute a breach of the
is a venerable one, and has been applied to the environment in modern decisions obligation not to cause significant transboundary harm.
of the Court 509 and in international instruments such as the 1972 Stockholm 5. 62 The findings of the Central American Court of Justice
510
Declaration on the Human Environment and the 1992 Rio Declaration on recorded in its judgment of 21 June 2012, confirm the risks posed b
Environment and Development. 511 Indeed, the Court has established that this project for the San Juan de Nicaragua River
obligation “is now part of the corpus of international law relating to the constructed, and some of the harm it had already caused, nearly a year ago:
environment”.
5. 61 As Nicaragua has stated in a report to the Court pursuant to the
Provisional Measures Order of 8 March 2011 in the Certain Activities case, Costa
Rica’s Road’s of 160 km alongside the river has “caused silting of the San Juan
River, erosion of the river banks, disturbances of its natural channels, and harm
to the surrounding ecosystem of wetlands and other protected areas, in addition to
the disruption of natural biological corridors .”512 These for ms of harm to
Nicaragua resulting from Costa Rica’s Road project , as well as others, are
examined in detail in Chapter 3 above. But for present purposes, this summary is
sufficient to indicate the scope of harm to Nicaragua caused by Costa Rica’s
509See Legality of the Threat or Use of Nuclear Weapons , Advisory Opinion, I.C.J. Reports 1996,
pp. 241-242, para. 29, invoked by Costa Rica in tCertain Activities case, CRM, pp. 211 -212,
para. 5.29; Gabčíkovo-Nagymaros Project, Hungary/Slovakia, I.C.J. Reports 1997, p. 7, at p. 41,
para. 53 (hereinafter “Gabčíkovo”); and Pulp Mills on the River Uruguay , Argentina v. Uruguay,
I.C.J. Reports 2010, p. 14, at p. 56, para. 101.
510United Nations Conference on the Human Environment, Stockholm, 5 -16 June 1972, Report
of the U.N. Conference on the Human Environment, 11 I.L.M. 1416 (1972), Principle 21.
511United Nations Conference on Environment and Development, Rio de Janeiro, 3 -14 June
1992, Report of the U.N. Conference on Environment and Development, 31 I.L.M. 874 (1992),
Principle 2.
512Certain Activities , Nicaragua’s report to the Court on compliance with the Provisional
Measures Order, 23 July 2012. territory, giving rise to vast areas where only obligation to prevent, reduce and control pollution (Article 21)
513
reddish and clayish soil remains.
. . . application of the general obligation not to cause transboundary harm. The only
FIFTH: The State of Costa Rica built a high -risk “defense” Costa Rica has cited is the Emergency Decree of 7 March 2011. While
and environmentally hazardous work, which it
should have prevented within the framework of the
this may exempt the Costa Rican government from some of its obligations under
community obligations because it exposes the
common watershed and ecosystem shared with Costa Rican internal law, however, as noted above it cannot exempt Costa Rica
Nicaragua and the region to serious and
unpredictable damage, which this Court was able to from obligations under international law , which is the only question before the
observe during its on- site inspection in the area in
514
question. Court.
5. 63 The harm to the San Juan de Nicaragua River and risk of such
harm documented in the judgment of the CACJ and examined in Chapter 3
U.N. Watercourses Convention, op. cit. supra, Article 20.
above, violate a number of principles reflected in the 1997 Watercourses
517
Convention, including the obligation not to cause significant harm (Article 7), 515
516
the obligation to protect and preserve ecosystems, ( Article 20 ) and the
513C.A.C.J Judgement, 21 June 2012 (NM, Vol. II, Annex 13).
514Ibid., Fifth ruling.
515
Article 7 reads as follows:
Article 7
Obligation not to cause significant harm
1. Watercourse States shall, in utilizing an international watercourse in their territories,
take all appropri ate measures to prevent the causing of significant harm to other
watercourse States.
2. Where significant harm nevertheless is caused to another watercourse State, the
States whose use causes such harm shall, in the absence of agreement to such use, take
all appropriate measures, having due regard for the provisions of articles 5 and 6, in
consultation with the affected State, to eliminate or mitigate such harm and, where
appropriate, to discuss the question of compensation.
516. Watercourses Convention, op. cit. supra, Article 7.
Article 20 reads as follows:
Article 20
Protection and Preservation of ecosystems
U.N. Watercourses Convention, op. cit. supra, Article 21.
190 territory, giving rise to vast areas where only obligation to prevent, reduce and control pollution (Article 21)
513
reddish and clayish soil remains.
. . . application of the general obligation not to cause transboundary harm. The only
FIFTH: The State of Costa Rica built a high -risk “defense” Costa Rica has cited is the Emergency Decree of 7 March 2011. While
and environmentally hazardous work, which it
should have prevented within the framework of the
this may exempt the Costa Rican government from some of its obligations under
community obligations because it exposes the
common watershed and ecosystem shared with Costa Rican internal law, however, as noted above it cannot exempt Costa Rica
Nicaragua and the region to serious and
unpredictable damage, which this Court was able to from obligations under international law , which is the only question before the
observe during its on- site inspection in the area in
514
question. Court.
5. 63 The harm to the San Juan de Nicaragua River and risk of such
Watercourse States shall, individually and, where appropriate, jointly, protect and
harm documented in the judgment of the CACJ and examined in Chapter 3 preserve the ecosystems of international watercourses.
U.N. Watercourses Convention, op. cit. supra, Article 20.
above, violate a number of principles reflected in the 1997 Watercourses
517Article 21 reads as follows:
Convention, including the obligation not to cause significant harm (Article 7), 515
516
the obligation to protect and preserve ecosystems, ( Article 20 ) and the
1. For the purpose of this article, "pollution of an international watercourse" means any
detrimental alteration in the composition or quality of the waters of an international
513C.A.C.J Judgement, 21 June 2012 (NM, Vol. II, Annex 13). watercourse which results directly or indirectly from human conduct.
514Ibid., Fifth ruling.
515
Article 7 reads as follows: 2. Watercourse States shall, individually and, where appropriate, jointly, prevent, reduce
Article 7 and control the pollution of an international watercourse that may cause significant harm
Obligation not to cause significant harm to other watercourse States or to their environment, including harm to human health or
safety, to the use of the waters for any beneficial purpose or to the living resources of the
1. Watercourse States shall, in utilizing an international watercourse in their territories, watercourse. Watercourse States shall take steps to harmonize their policies in this
take all appropri ate measures to prevent the causing of significant harm to other connection.
watercourse States.
3. Watercourse States shall, at the request of any of them, consult with a view to
2. Where significant harm nevertheless is caused to another watercourse State, the arriving at mutually agreeable measures and methods to prevent, reduce and co
States whose use causes such harm shall, in the absence of agreement to such use, take pollution of an international watercourse, such as:
all appropriate measures, having due regard for the provisions of articles 5 and 6, in
consultation with the affected State, to eliminate or mitigate such harm and, where (a) Setting joint water quality objectives and criteria;
appropriate, to discuss the question of compensation.
(b) Establishing techniques and practices to address pollution from point and non- point
516. Watercourses Convention, op. cit. supra, Article 7. sources;
Article 20 reads as follows:
(c) Establishing lists of substance
Article 20 international watercourse is to be prohibited, limited, investigated or monitored.
Protection and Preservation of ecosystems
U.N. Watercourses Convention, op. cit. supra, Article 21. 5. 64 It is clear, therefore, that Costa Rica has violated the obligation
not to cause transboundary harm. Specific harm to the hydrologic regime of the
This “fundamental requirement” constitutes one of the objects and purposes of
San Juan de Nicaragua River is detailed in Chapter 3.
the Convention, namely, in-situ conservation of ecosystems and natural habitats.
E . COSTA RICA’S CONSTRUCTION OF THE ROAD
Costa Rica’s Road project is flatly incompatible with this object and purpose of
BREACHED TREATIES TO WHICH THE TWO STA TES
ARE PARTIES the CBD, since it destroys and otherwise damages, along its entire route of some
5. 65 Costs Rica’s reckless construction of the Road project v iolates a 160 kilometers, ecosystems and natural habitats within Costa Rica’s territory
number of treaties binding on the two parties of a universal, regional and bilateral Indeed, on 15 February 1994 the Costa Rican President and its Ministry of
character. Natural Resources, Energy and Mines adopted a Decree declaring the entire
borderline corridor between Costa Rica and Nicaragua, from Punta Castilla in the
1 . Costa Rica’s Road Project Breaches Universal
Agreements
Caribbean Sea to Salinas Bay in the Pacific Ocean, a National Wildlife
(a) The Convention on Biological Diversity Refuge.
518
5. 66 The Convention on Biological Diversity (CBD) of 5 June 1992, de Nicaragua River, the Road inflicts serious harm on the ecosystems and natural
has 193 parties, including both Costa Rica, which ratified the CBD on 26 August habitats of the San Juan de Nicaragua, causing harm thereto which is irreparable
1994, and Nicaragua, which ratified the treaty on 20 November 1995. This is a as a practical matter. All of this is the antithesis of “in-situ conservation”.
universal agreement in every sense, including both its subject -matter coverage
and the breadth of state participation in it. Convention substantively. Paragraphs (d) through (f) of Article 8 require that
5. 67 In the Preamble of the CBD the Contracting Parties note that: each Contracting Party:
the fundamental requirement for the
conservation of biological diversity is the
in-situ conservation of ecosystems and
natural habitats and the maintenance and 519
520
518Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, 1760 U.N.T.S. 79, 31 I.L.M. Nicaragua, from Punta Castilla in the Caribbean Sea up to Salinas Bay in the Pacific Ocean is
818 (1992), available at http://www.cbd.int/doc/legal/cbd-en.pdf (hereinafter CBD) (last visited Hereby Declared as a National Wildlife Refuge, Executive Decree No. 22962 , 15 February 1994.
5 December 2012). (NM, Vol. II, Annex 9) (hereafter Decree No. 22962).
192 5. 64 It is clear, therefore, that Costa Rica has violated the obligation
not to cause transboundary harm. Specific harm to the hydrologic regime of the
This “fundamental requirement” constitutes one of the objects and purposes of
San Juan de Nicaragua River is detailed in Chapter 3.
the Convention, namely, in-situ conservation of ecosystems and natural habitats.
E . COSTA RICA’S CONSTRUCTION OF THE ROAD
Costa Rica’s Road project is flatly incompatible with this object and purpose of
BREACHED TREATIES TO WHICH THE TWO STA TES
ARE PARTIES the CBD, since it destroys and otherwise damages, along its entire route of some
5. 65 Costs Rica’s reckless construction of the Road project v iolates a 160 kilometers, ecosystems and natural habitats within Costa Rica’s territory
number of treaties binding on the two parties of a universal, regional and bilateral Indeed, on 15 February 1994 the Costa Rican President and its Ministry of
character. Natural Resources, Energy and Mines adopted a Decree declaring the entire
borderline corridor between Costa Rica and Nicaragua, from Punta Castilla in the
1 . Costa Rica’s Road Project Breaches Universal
Agreements
Caribbean Sea to Salinas Bay in the Pacific Ocean, a National Wildlife
(a) The Convention on Biological Diversity Refuge. 520
518
5. 66 The Convention on Biological Diversity (CBD) of 5 June 1992, de Nicaragua River, the Road inflicts serious harm on the ecosystems and natural
has 193 parties, including both Costa Rica, which ratified the CBD on 26 August habitats of the San Juan de Nicaragua, causing harm thereto which is irreparable
1994, and Nicaragua, which ratified the treaty on 20 November 1995. This is a as a practical matter. All of this is the antithesis of “in-situ conservation”.
universal agreement in every sense, including both its subject -matter coverage 5. 68 Article 8 of the CBD implements this object and purpose of the
and the breadth of state participation in it. Convention substantively. Paragraphs (d) through (f) of Article 8 require that
5. 67 In the Preamble of the CBD the Contracting Parties note that: each Contracting Party:
the fundamental requirement for the
conservation of biological diversity is the
in-situ conservation of ecosystems and
natural habitats and the maintenance and 51CBD, ibid., Preamble.
520The Borderline Corrid or conformed by the Territories encompassed along the Border with
518Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, 1760 U.N.T.S. 79, 31 I.L.M. Nicaragua, from Punta Castilla in the Caribbean Sea up to Salinas Bay in the Pacific Ocean is
818 (1992), available at http://www.cbd.int/doc/legal/cbd-en.pdf (hereinafter CBD) (last visited Hereby Declared as a National Wildlife Refuge, Executive Decree No. 22962 , 15 February 1994.
5 December 2012). (NM, Vol. II, Annex 9) (hereafter Decree No. 22962). viable populations of species in natural This provision, which is based on Principle 21 of the Stockholm Declaration,
surroundings;
makes the sovereign right of a state to exploit its own resources subject to the
(e) Promote environmentally sound and
sustainable development in areas adjacent responsibility to ensure that in doing so, damage is not caused to, inter alia, the
to protected areas with a view to furthering
protection of these areas; environment of other states.
(f) Rehabilitate and restore degr aded
ecosystems and promote the recovery of
threatened species, inter alia, through the breached this obligation.
development and implementation of plan s
521
or other management strategies; …. activities within [its] jurisdiction or control do not cause damage to the
Costa Rica’s Road project flies in the face of these requirements, constitutin g environment of [Nicaragua]”. “Ensur[ing]” that construction of the Road would
aggravated breaches thereof. Again, this is true not only of the effects of the Road not cause damage to the environment of Nicaragua would entail the preparation
in Costa Rican territory, but also of the substantial harm it causes within of an environmental impact assessment, notification to, and consultation wit
Nicaragua’s territory. Nicaragua and, at the very least,
5. 69 The latter form of harm caused to Nicaragua is in direct violation
adverse transboundary impacts.
of Article 3 of the CBD, which provides as follows: responsible for the breach of Article 3.
Article 3. Principle risk and environmentally hazardous [Road project] … exposes the common
States have, in accordance with the Charter watershed and ecosystem shared with Nicaragua and the region to serious and
of the United Nations and the principles of
international law, the sovereign right to unpredictable damage ….”
exploit their own resources pursuant to their
own environmental policies, and the
responsibility to ensure that activities within
their jurisdiction or control do not cause Costa Rica failed entirely to take: environmental impact assessment; planning to
damage to the envir onment of other States
or of areas beyond the limits of national avoid adverse impacts on biological diversity; and notification, exchange of
jurisdiction.
information and consultation regarding planned measures that may adversely
522
521 523ld occur in or to Nicaragua, thus entailing a strict, or absolute, form of responsibility.
Ibid., Article 8(d)-(f).
194 viable populations of species in natural This provision, which is based on Principle 21 of the Stockholm Declaration,
surroundings;
makes the sovereign right of a state to exploit its own resources subject to the
(e) Promote environmentally sound and
sustainable development in areas adjacent responsibility to ensure that in doing so, damage is not caused to, inter alia, the
to protected areas with a view to furthering
protection of these areas; environment of other states.
(f) Rehabilitate and restore degr aded 5. 70 There is no sense in which Costa Rica can be said not to
ecosystems and promote the recovery of
threatened species, inter alia, through the breached this obligation.
development and implementation of plan s
521
or other management strategies; …. activities within [its] jurisdiction or control do not cause damage to the
Costa Rica’s Road project flies in the face of these requirements, constitutin g environment of [Nicaragua]”. “Ensur[ing]” that construction of the Road would
aggravated breaches thereof. Again, this is true not only of the effects of the Road not cause damage to the environment of Nicaragua would entail the preparation
in Costa Rican territory, but also of the substantial harm it causes within of an environmental impact assessment, notification to, and consultation wit
Nicaragua’s territory. Nicaragua and, at the very least,
5. 69 The latter form of harm caused to Nicaragua is in direct violation
adverse transboundary impacts.
of Article 3 of the CBD, which provides as follows: responsible for the breach of Article 3.
Article 3. Principle risk and environmentally hazardous [Road project] … exposes the common
States have, in accordance with the Charter watershed and ecosystem shared with Nicaragua and the region to serious and
of the United Nations and the principles of
international law, the sovereign right to unpredictable damage ….”
exploit their own resources pursuant to their
own environmental policies, and the
5. 71 Article 14 of the CBD addresses the anticipatory measures that
responsibility to ensure that activities within
their jurisdiction or control do not cause Costa Rica failed entirely to take: environmental impact assessment; planning to
damage to the envir onment of other States
or of areas beyond the limits of national avoid adverse impacts on biological diversity; and notification, exchange of
jurisdiction.
information and consultation regarding planned measures that may adversely
522
The term “ensure” could be interpreted to require that Costa Rica guarantee that no harm
521 523ld occur in or to Nicaragua, thus entailing a strict, or absolute, form of responsibility.
Ibid., Article 8(d)-(f). C.A.C.J. Judgement, 21 June 2012, op. cit. supra, Fifth ruling. (NM, Vol. II, Annex 13). affect biological diversity of other states. Article 14 provides in relevant part as with that requirement either. And in relation to its Road project, Costa Rica has
follows: utterly failed to promote “notification, exchange of information and consultation”
Article 14. Impact Assessment and as to its activities that are likely to have significant adverse effects on the
Minimizing Adverse Impacts
biological diversity of Nicaragua.
1. Each Contracting Party, as far as possible and as
appropriate, shall:
(a) Introduce appropriate procedures requiring
environmental impact assessment of its
proposed projects that are likely to have
significant adverse effects on biological Wetlands of International Importance especially as Waterfowl Habitat, Ramsar
diversity with a view to avoiding or minimizing
such effects and, where appropriate, allow for (Iran), 2 February 1971 (the Ramsar Convention).
public participation in such procedures;
(b) Introduce appropriate arrangements to ensure
though misplaced – reliance on this agreement in the Certain Activities case, one
that the environmental consequences of its
programmes and policies that are likely to have might have thought it would have observed the Convention’s requirements when
significant adverse impacts on biological
diversity are duly taken into account;
taking the decision to construct the Road. Unfortunately, there is no indication at
(c) Promote, on the basis of reciprocity,
notification, exchange of information and all that the Ramsar Convention so much as crossed the minds of Costa Rica’s
consultation on activities under their jurisdiction
or control which are likely to significantly affect officials.
adversely the biological diversity of other States
or areas beyond the limits of national
jurisdiction, by encouraging the conclusion of
bilateral, regional or multilateral arrangements, Nicaragua 9.
as appropriate; …. 524
5. 72 Costa Rica has implemented paragraph 1(a) but did not actually protecting these sensitive ecosystems, whether or not in its own territory, as
required by Article 3, paragraph 1, of the Ramsar
apply it in this case – something that is implicit in a provision requiring the
introduction of “appropriate procedures requiring environmental impact requirement of providing information to the Ramsar secretariat on possible
assessment ….” Nicaragua is not aware whether Costa Rica has even attempted
525
to implement, even ex post facto , paragraph 1(b) but if it has, it did not comply (Iran), 2 February 1971,
526ecember 1982, and Regina Amendments, 28 May 1987.
524
CBD, op. cit. supra, Article 14(a)-(c). parties/main/ramsar/1-36-123%5E23808_4000_0__ (last visited 5 December 2012).
196affect biological diversity of other states. Article 14 provides in relevant part as with that requirement either. And in relation to its Road project, Costa Rica has
follows: utterly failed to promote “notification, exchange of information and consultation”
Article 14. Impact Assessment and as to its activities that are likely to have significant adverse effects on the
Minimizing Adverse Impacts
biological diversity of Nicaragua.
1. Each Contracting Party, as far as possible and as
appropriate, shall:
(a) Introduce appropriate procedures requiring
environmental impact assessment of its 5. 73 Both Costa Rica and Nicaragua are parties to the Con vention on
proposed projects that are likely to have
significant adverse effects on biological Wetlands of International Importance especially as Waterfowl Habitat, Ramsar
diversity with a view to avoiding or minimizing
such effects and, where appropriate, allow for (Iran), 2 February 1971 (the Ramsar Convention).
public participation in such procedures;
(b) Introduce appropriate arrangements to ensure
though misplaced – reliance on this agreement in the Certain Activities case, one
that the environmental consequences of its
programmes and policies that are likely to have might have thought it would have observed the Convention’s requirements when
significant adverse impacts on biological
diversity are duly taken into account;
taking the decision to construct the Road. Unfortunately, there is no indication at
(c) Promote, on the basis of reciprocity,
notification, exchange of information and all that the Ramsar Convention so much as crossed the minds of Costa Rica’s
consultation on activities under their jurisdiction
or control which are likely to significantly affect officials.
adversely the biological diversity of other States
or areas beyond the limits of national 5. 74 Both countries have numerous Ramsar sites – Costa Rica 12, and
jurisdiction, by encouraging the conclusion of
bilateral, regional or multilateral arrangements, Nicaragua 9.
as appropriate; …. 524
5. 72 Costa Rica has implemented paragraph 1(a) but did not actually protecting these sensitive ecosystems, whether or not in its own territory, as
required by Article 3, paragraph 1, of the Ramsar
apply it in this case – something that is implicit in a provision requiring the
introduction of “appropriate procedures requiring environmental impact requirement of providing information to the Ramsar secretariat on possible
assessment ….” Nicaragua is not aware whether Costa Rica has even attempted
52Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar
to implement, even ex post facto , paragraph 1(b) but if it has, it did not comply (Iran), 2 February 1971,
526ecember 1982, and Regina Amendments, 28 May 1987.
524 See the Ramsar Convention website, http://www.ramsar.org/cda/en/ramsar
CBD, op. cit. supra, Article 14(a)-(c). parties/main/ramsar/1-36-123%5E23808_4000_0__ (last visited 5 December 2012). changes to the ecological character of its wetlands, as required by paragraph 2 of ecological character of wetlands in its territory and included in the List were
that article: “likely to change as the result of technological developments, pollution or other
1. The Contracting Parties shall human interference”
formulate and implement their planning to
as to promote the conservation of wetlands Costa Rica inform ed the Ramsar secretariat of such changes as required by
included in the List [of Wetlands of
International Importance], and as far as paragraph 2 of Article 3.
possible the wise use of wetlands in their
territory.
2. Each Contracting Party shall arrange
to be informed at the earliest p ossible time by Costa Rica in respect of its Road project is that of Article 5.
if the ecological character of any wetland in
its territory and included in the List has provides as follows:
changed, is changing or is likely to change
as the result of technological developments,
pollution or other human interference.
Information on such chang es shall be
passed without delay to the organization or
government responsible for the continuing
bureau duties specified in Article 8. 527
5. 75 Paragraph 1 of Article 3 makes clear that conservation of wetlands
is premised upon appropriate planning, s omething Costa Rica did not do in
respect of its Road project. Thus Costa Rica prevented itself from complying
This article is applicable in the present case on two grounds, viz., wetlands
with the gravamen of paragraph 1: promotion of the conservation of the wetlands
extend over the territories of Costa Rica and Nicaragua, and, of course, a water
included in the List. And it bears emphasis that there is nothing in paragraph 1
system, that of the San Juan River, is shared by the two states. As has been
that limits its requirements to Costa Rican wetlands; they apply to Nicaraguan
shown, Costa Rica not only did not consult with Nicaragua concerning the
wetlands, as well.
implementation of its obligations under the Convention in connection with its
5. 76 Costa Rica also failed to comply with paragraph 2 of Article 3. It
Road project, it baldly refused to do so, stating “Costa Rica considers that the
may be presumed that high -level Costa Rican officials were well aware that the
528
527 529
Ramsar Convention, op. cit. supra, Article 3.
198changes to the ecological character of its wetlands, as required by paragraph 2 of ecological character of wetlands in its territory and included in the List were
that article: “likely to change as the result of technological developments, pollution or other
1. The Contracting Parties shall human interference”
formulate and implement their planning to
as to promote the conservation of wetlands Costa Rica inform ed the Ramsar secretariat of such changes as required by
included in the List [of Wetlands of
International Importance], and as far as paragraph 2 of Article 3.
possible the wise use of wetlands in their
territory. 5. 77 But perhaps the most obvious breach of the Ramsar Convention
2. Each Contracting Party shall arrange
to be informed at the earliest p ossible time by Costa Rica in respect of its Road project is that of Article 5.
if the ecological character of any wetland in
its territory and included in the List has provides as follows:
changed, is changing or is likely to change
as the result of technological developments,
pollution or other human interference.
Information on such chang es shall be
passed without delay to the organization or
government responsible for the continuing
bureau duties specified in Article 8. 527
5. 75 Paragraph 1 of Article 3 makes clear that conservation of wetlands
is premised upon appropriate planning, s omething Costa Rica did not do in
respect of its Road project. Thus Costa Rica prevented itself from complying
This article is applicable in the present case on two grounds, viz., wetlands
with the gravamen of paragraph 1: promotion of the conservation of the wetlands
extend over the territories of Costa Rica and Nicaragua, and, of course, a water
included in the List. And it bears emphasis that there is nothing in paragraph 1
system, that of the San Juan River, is shared by the two states. As has been
that limits its requirements to Costa Rican wetlands; they apply to Nicaraguan
shown, Costa Rica not only did not consult with Nicaragua concerning the
wetlands, as well.
implementation of its obligations under the Convention in connection with its
5. 76 Costa Rica also failed to comply with paragraph 2 of Article 3. It
Road project, it baldly refused to do so, stating “Costa Rica considers that the
may be presumed that high -level Costa Rican officials were well aware that the
528
527 529bid., Article 3, para. 2.
Ramsar Convention, op. cit. supra, Article 3. Ibid., Article 5. 530
project mentioned is not affecting Nicaraguan territory.” Rather than
consulting with Nicaragua as requi red by Article 5, Costa Rica, even after
531
receiving an official note of complaint from Nicaragua , “invite[d] the
Costa Rica’s Road project breaches a number of regional and bilateral
Government of Nicaragua to present formally the reasons for which it considers
532 agreements. The states of Central America ha
that there may be environmental damage or damage to Nicaragua’s interests.”
concern for environmental protection and efforts at regional integration,
As noted earlier, Nicaragua responded to this request even though it was under
objectives wholly ignored by Costa Rica in the construction of its Road project.
no obligation to do so. Moreover Costa Rica “request[ed] to receive serious and
objective scientific information that proves Nicaragua’s allegation.” 533
5. 78 Apart from the fact that it would be impossible as a practical
matter for Nicaragua to comply with Costa Rica’s invitation without detailed
information from Costa Rica concerning the Road project, the obligation to
consult in Article 5 – like that of prior notification and consultation under general
international law – is not premised on the prior presentation by one of the parties American Convention for the Protection of the Environment, signed at San José,
of such reasons or scientific information as Costa Rica demanded. Thus Costa Costa Rica, on 12 December 1989.
Rica breached, inter alia, the obligation to cons ult under Article 5 of the Ramsar are well captured in its preamble:
Convention.
530
Diplomatic Note from the Minister of foreign Affairs and Worship of Costa Rica to the
Minister of Foreign Affairs of Nicaragua, Ref: DM-AM-601-11, 29 November 2011. (NM, Vol.
531 Annex 15).
Diplomatic Note from the Minister of Foreign Affairs of Nicaragua to the Minister of Foreign
Affairs of Costa Rica, Ref: MRE/DVM/AJST/500/11/11, 29 November 2011. (NM, Vol. II,
Annex 14).
532Diplomatic Note from the Minister of Foreign Affairs and Worship of Costa Rica to the
Minister of Foreign Affairs of Nicaragua, Ref: DM -AM-601-11, 29 November 2011 (NM, Vol.
II, Annex 15). 534
533Ibid. U.N.T.S. p. 151 (hereinafter CACPE).
200 530
project mentioned is not affecting Nicaraguan territory.” Rather than
consulting with Nicaragua as requi red by Article 5, Costa Rica, even after
531 5. 79 In addition to the treaties of a universal character discussed above,
receiving an official note of complaint from Nicaragua , “invite[d] the
Costa Rica’s Road project breaches a number of regional and bilateral
Government of Nicaragua to present formally the reasons for which it considers
532 agreements. The states of Central America ha
that there may be environmental damage or damage to Nicaragua’s interests.”
concern for environmental protection and efforts at regional integration,
As noted earlier, Nicaragua responded to this request even though it was under
objectives wholly ignored by Costa Rica in the construction of its Road project.
no obligation to do so. Moreover Costa Rica “request[ed] to receive serious and
objective scientific information that proves Nicaragua’s allegation.” 533
5. 78 Apart from the fact that it would be impossible as a practical
matter for Nicaragua to comply with Costa Rica’s invitation without detailed
information from Costa Rica concerning the Road project, the obligation to
consult in Article 5 – like that of prior notification and consultation under general 5. 80 As early as 1989, the states of the region concluded the Central
international law – is not premised on the prior presentation by one of the parties American Convention for the Protection of the Environment, signed at San José,
of such reasons or scientific information as Costa Rica demanded. Thus Costa Costa Rica, on 12 December 1989.
Rica breached, inter alia, the obligation to cons ult under Article 5 of the Ramsar are well captured in its preamble:
Convention.
530
Diplomatic Note from the Minister of foreign Affairs and Worship of Costa Rica to the
Minister of Foreign Affairs of Nicaragua, Ref: DM-AM-601-11, 29 November 2011. (NM, Vol.
531 Annex 15).
Diplomatic Note from the Minister of Foreign Affairs of Nicaragua to the Minister of Foreign
Affairs of Costa Rica, Ref: MRE/DVM/AJST/500/11/11, 29 November 2011. (NM, Vol. II,
Annex 14).
532Diplomatic Note from the Minister of Foreign Affairs and Worship of Costa Rica to the
Minister of Foreign Affairs of Nicaragua, Ref: DM -AM-601-11, 29 November 2011 (NM, Vol.
II, Annex 15). 53Central American Convention for the Protection of the Environment, 12 December 1989, 2278
533Ibid. U.N.T.S. p. 151 (hereinafter CACPE). model, in order to avoid the destructive effects of
previous models on the region's natural resources,
Mindful that, in view of the significant
interdependence among the countries of the
isthmus, regional cooperation must be an essential
tool for the solution of ecological problems,
And convinced that the ordered use of natural
resources and the environment at the regional level system of cooperation (Article II), including:
is an essential requirement for th e achievement of
lasting peace,
Have decided to sign this Convention …. 535
5. 81 How Costa Rica could proceed with its Road project unmindful of
these solemn recitals, in an agreement signed in its capital city, defies
comprehension. The values they reflect evidently fell victim to Costa Rica’s
reaction to Nicaragua’s having cleaned a smallchannel by hand, with shovels and
pickaxes, on what Nicaragua regards – on the basis of arbitral awards over a
536
century old – as its own territory. Surely this cannot be cooperation, “an
essential tool for the solution of ecological problems”.
5. 82 Article I of the convention establishes
“a regional system of cooperation for the optimal
and rational use of the region’s natural resources,
pollution control and the restoration of the
ecological balance, in order to ensure that the objectives. A
peoples of the Central American isthmus enjoy a
better quality of life.”537 respect for … the region’s natural heritage” and fails utterly to “protect” that
natural heritage. Costa Rica’s snubbing of Nicaragua’s request for environmental
studies on the Road project w
535Ibid., preamble.
536 “establish[ing] collaborative relations among the countries of Central America”
See Nicaragua’s Counter-Memorial in the case concerning Certain Activities Carried Out by
537aragua in the Border Area (Costa Rica v. Nicaragua), filed with the Court on 06 August 2012. 538
CACPE, op. cit. supra, Article I.
202 model, in order to avoid the destructive effects of Costa Rica’s actions and failure to do what international law requires of it
previous models on the region's natural resources,
Mindful that, in view of the significant in relation to the Road project are incompatible with such a system , and
interdependence among the countries of the
isthmus, regional cooperation must be an essential show nothing but disrespect for it.
tool for the solution of ecological problems,
5. 83 The convention goes on to establish the objectives of the regional
And convinced that the ordered use of natural
resources and the environment at the regional level system of cooperation (Article II), including:
is an essential requirement for th e achievement of
lasting peace,
Have decided to sign this Convention …. 535
5. 81 How Costa Rica could proceed with its Road project unmindful of
these solemn recitals, in an agreement signed in its capital city, defies
comprehension. The values they reflect evidently fell victim to Costa Rica’s
reaction to Nicaragua’s having cleaned a smallchannel by hand, with shovels and
pickaxes, on what Nicaragua regards – on the basis of arbitral awards over a
536
century old – as its own territory. Surely this cannot be cooperation, “an
essential tool for the solution of ecological problems”.
5. 82 Article I of the convention establishes
“a regional system of cooperation for the optimal
and rational use of the region’s natural resources, 5. 84 Once again, Costa Rica’s Road project flies in the face of these
pollution control and the restoration of the
ecological balance, in order to ensure that the objectives. A
peoples of the Central American isthmus enjoy a
better quality of life.”537 respect for … the region’s natural heritage” and fails utterly to “protect” that
natural heritage. Costa Rica’s snubbing of Nicaragua’s request for environmental
studies on the Road project w
535Ibid., preamble.
536 “establish[ing] collaborative relations among the countries of Central America”
See Nicaragua’s Counter-Memorial in the case concerning Certain Activities Carried Out by
537aragua in the Border Area (Costa Rica v. Nicaragua), filed with the Court on 06 August 2012. 538
CACPE, op. cit. supra, Article I. Ibid., Article II(a)-(c) and (g). and “promot[ing] coordinated action by governmental … bodies in order to the objectives of SICA enumerated in Article 3 of the Tegucigalpa Protocol are
ensure the optimal and rational use of the region’s natural resources, pollution the following:
control and the restoration of the ecological balance ….” . Finally, Costa Rica’s
Road project runs counter to several “priority areas for action”, including
“protection of shared watersheds and ecosystems” and “tropical forest
management”.
5. 85 The convention then establishes the Central American
Commission on Environment and Development and provides for its structure and
539
functions (chapter II of the convention, Articles III -X). The Commission is
“responsible for managing and admi nistering the system referred to in this
Convention.” (Article V.) Costa Rica’s actions in respect of its Road project
seriously undermine that system.
ii. The Tegucigalpa Protocol
5. 86 In 1991, Costa Rica, El Salvador, Guatemala, Honduras, objectives. The Road contradicts the concepts of “sustained”, or sustainable,
540
Nicaragua and Panama c oncluded the Tegucigalpa Protocol to the Charter of development, in view of its construction in what Costa Rica’s own engineering
the Organization of Central American States (OCAS). 541 Article 1 of the organization has found to be shoddy, and without prior planning or
Protocol establishes t he Central American Integration System (SICA) . Among environmental impact assessments.
539 balanced” about the project, or the manner in which Costa Rica proceeded with it
See also the Internal Regulations of the Central American Commission on Environment and
Development, available at http://www.sica.int/ccad/ (last visited 5 December 2012).
540Tegucigalpa Protocol to the Charter of the Organization of Central American States (ODECA), in relation to Nicaragua, its immediate neighbor, which was hardly designed to
Tegucigalpa, 13 December 1991, 1695 U.N.T.S. p. 382 (hereinafter Tegucigalpa Protocol), also
available at http://www.sieca.int/site/CacheING/17990000000018/17990000000018.pdf (last maintain “harmonious and balanced” relations.
visited 5 December 2012).
541Charter of the Organization of Central American States, Panama City, 12 December 1962, 552
U.N.T.S. p. 15. also available at http://treaties.un.org/untc//Pages//doc/Publication/UNTS/ 542
Volume%20552/volume-552-I-8048-English.pdf (last visited 5 December 2012). 543
204and “promot[ing] coordinated action by governmental … bodies in order to the objectives of SICA enumerated in Article 3 of the Tegucigalpa Protocol are
ensure the optimal and rational use of the region’s natural resources, pollution the following:
control and the restoration of the ecological balance ….” . Finally, Costa Rica’s
Road project runs counter to several “priority areas for action”, including
“protection of shared watersheds and ecosystems” and “tropical forest
management”.
5. 85 The convention then establishes the Central American
Commission on Environment and Development and provides for its structure and
539
functions (chapter II of the convention, Articles III -X). The Commission is
“responsible for managing and admi nistering the system referred to in this
Convention.” (Article V.) Costa Rica’s actions in respect of its Road project
seriously undermine that system.
ii. The Tegucigalpa Protocol 5. 87 Nothing about Costa Rica’s Road project is consistent with these
5. 86 In 1991, Costa Rica, El Salvador, Guatemala, Honduras, objectives. The Road contradicts the concepts of “sustained”, or sustainable,
540
Nicaragua and Panama c oncluded the Tegucigalpa Protocol to the Charter of development, in view of its construction in what Costa Rica’s own engineering
the Organization of Central American States (OCAS). 541 Article 1 of the organization has found to be shoddy, and without prior planning or
Protocol establishes t he Central American Integration System (SICA) . Among environmental impact assessments.
539 balanced” about the project, or the manner in which Costa Rica proceeded with it
See also the Internal Regulations of the Central American Commission on Environment and
Development, available at http://www.sica.int/ccad/ (last visited 5 December 2012).
540Tegucigalpa Protocol to the Charter of the Organization of Central American States (ODECA), in relation to Nicaragua, its immediate neighbor, which was hardly designed to
Tegucigalpa, 13 December 1991, 1695 U.N.T.S. p. 382 (hereinafter Tegucigalpa Protocol), also
available at http://www.sieca.int/site/CacheING/17990000000018/17990000000018.pdf (last maintain “harmonious and balanced” relations.
visited 5 December 2012).
541Charter of the Organization of Central American States, Panama City, 12 December 1962, 552
U.N.T.S. p. 15. also available at http://treaties.un.org/untc//Pages//doc/Publication/UNTS/ 54Tegucigalpa Protocol, op. cit. supra, Article 3, paras. (b) (h) and (i) (emphasis added).
Volume%20552/volume-552-I-8048-English.pdf (last visited 5 December 2012). 54CFIA Report, op. cit. supra. (NM, Vol. II, Annex 4). environment” requires acting in concert with other states, in this case most
immediately Nicaragua, something that Costa Rica has deliberately avoided
doing. And the Road project is clearly at cross -purposes with the objective of
“establishing a new ecological order in the region”.
5. 88 Costa Rica’s Road project also contravenes several of the … endanger[s] the attainment of the objectives and compliance with the
“fundamental principles” set forth in Article 4 of the Protocol: fundamental principles of the Central American Integration Sys
Article 4 been shown, it was unilateral in that it was undertaken without any prior
In order to attain the above objectives, the notification to, let alone consultation with, Nicaragua . Costa Rica is therefore in
Central American Integration System and its
members shall proceed in accordance with the breach of Article 6 of the Tegucigalpa Protocol.
following fundamental principles:
…
(e) The phased, specific and progressive
violations by Costa Rica of the Tegucigalpa Protocol and conduct inconsistent
nature of the process of economic integration, based
on harmonious and balanced regional development, with the integration system it establishes:
with special treatment for relatively less developed
Member States, and on equity and reciprocity, and
the Central American Exception Clause;
…
(h) Good faith on the part of the member
States in the discharge of their obligations; Member
States shall abstain from establishing, agreeing to or
adopting any measure that contravenes the
provisions of this instrument or that impedes
compliance with the fundamental principles of the
Central American Integration Sys544 or the
attainment of its objectives; ….
5. 89 Article 6 of the Protocol requires that all Member States, including
Costa Rica, act in compliance with the foregoing objectives and principles:
544 545
Ibid., Article 4, paras. (e) and (h) (emphasis added).
206environment” requires acting in concert with other states, in this case most
immediately Nicaragua, something that Costa Rica has deliberately avoided
doing. And the Road project is clearly at cross -purposes with the objective of
“establishing a new ecological order in the region”. 5. 90 Costa Rica’s Road project is precisely a “unilateral measure that
5. 88 Costa Rica’s Road project also contravenes several of the … endanger[s] the attainment of the objectives and compliance with the
“fundamental principles” set forth in Article 4 of the Protocol: fundamental principles of the Central American Integration Sys
Article 4 been shown, it was unilateral in that it was undertaken without any prior
In order to attain the above objectives, the notification to, let alone consultation with, Nicaragua . Costa Rica is therefore in
Central American Integration System and its
members shall proceed in accordance with the breach of Article 6 of the Tegucigalpa Protocol.
following fundamental principles:
… 5. 91 The Central American Court of Justice (CACJ)
(e) The phased, specific and progressive
violations by Costa Rica of the Tegucigalpa Protocol and conduct inconsistent
nature of the process of economic integration, based
on harmonious and balanced regional development, with the integration system it establishes:
with special treatment for relatively less developed
Member States, and on equity and reciprocity, and
the Central American Exception Clause;
…
(h) Good faith on the part of the member
States in the discharge of their obligations; Member
States shall abstain from establishing, agreeing to or
adopting any measure that contravenes the
provisions of this instrument or that impedes
compliance with the fundamental principles of the
Central American Integration Sy544m or the
attainment of its objectives; ….
5. 89 Article 6 of the Protocol requires that all Member States, including
Costa Rica, act in compliance with the foregoing objectives and principles:
544 545
Ibid., Article 4, paras. (e) and (h) (emphasis added). Ibid., Article 6. added to the case file on page 1173 is the affidavit
of the Minister of Foreign Affairs of Nicaragua,
Licentiate Samuel Santos López, expressing that
the Ministry has not received any report or official
communication from the Government of Costa
Rica requesting a dialogue, mitigation measures o r
the beginning of a potential negotiation with the Convention for the Conservation of Biodiversity and the Protection of
Government of Nicaragua in relation to the road it
is building on the right bank of the San Juan River Wilderness Areas in Central America.
and that he has not received from official Costa
Rican sources any environment impact study Costa Rica and Nicaragua.
relating to this work. Consequently, this Court
considers that Costa Rica was obliged to
communicate to the Government of Nicaragua the
characteristics, effects and environmental impact extent possible the land- based and coastal -marine biological diversity of the
study of the construction of the road by virtue of its
international and community commitments Central American region for the benefit of present and future generations.
imposed by treaties, conventions, agreements and
legislative acts derived from the Tegucigalpa 546 (Article 1.) The convention contains detailed provisions aimed at achieving this
Protocol in the field of environment protection.”
objective. It includes chapters on Fundamental Principles (Chapter I), General
5. 92 In the present case, Costa Rica acted in violation of these
Obligations (Chapter II ) and Means of Implementation (Chapter III), among
obligations. As shown in Chapter 3, Costa Rica’s unilateral decision to build the
others. As with the trea ties considered above, Costa Rica’s Road project runs
Road without first conducting an environmental impact assessment, and even
afoul of many of the provisions of this agreement. Only a few examples will be
without blueprints, has caused significant harm to the environment of both
cited for purposes of illustration.
Nicaragua and Costa Rica. It clearly jeopardizes several objectives of the SICA
such as the respect and protection of the environment and the establishment of a
548
new ecological order. Costa Rica compounded these breaches by ignoring two
Central America, Managua, 5 June 1992, (Annex 23 to the Memorial of Costa Rica (CRM) in the
binding decisions of the CACJ ordering the suspension of work on the Road. 547 Dispute concerning Certain Activities Carried Out by Nicaragua in the Bor der Area (Costa Rica
v. Nicaragua) ),original Spanish text available at http://www.ecolex.org/server2.php/
libcat/docs/TRE/Multilateral/En/TRE001162.txt
549vention) (last visited 5 December 2012).
Nations (FAO), the International Union for the Conservation of Nature and Natural Resources
(UNCN), and the United Nations Environment Programme (UNEP),
http://www.ecolex.org/ecolex/ledge/view/RecordDetails?id=TRE-001162&ind…,
546C.A.C.J. Judgement, 21 June 2012, op. cit. supra , (NM, Vol. II, Annex 4). indicating that the convention entered into force for Costa Rica on 20 December 1994 and f
547Ibid., Whereas IX. (NM, Vol. II, Annex 4). Nicaragua on 20 January 1996 (last visited 5 December 2012).
208 added to the case file on page 1173 is the affidavit
of the Minister of Foreign Affairs of Nicaragua,
Licentiate Samuel Santos López, expressing that
the Ministry has not received any report or official
communication from the Government of Costa 5. 93
Rica requesting a dialogue, mitigation measures o r
the beginning of a potential negotiation with the Convention for the Conservation of Biodiversity and the Protection of
Government of Nicaragua in relation to the road it
is building on the right bank of the San Juan River Wilderness Areas in Central America.
and that he has not received from official Costa
Rican sources any environment impact study Costa Rica and Nicaragua.
relating to this work. Consequently, this Court
considers that Costa Rica was obliged to 5. 94 The objective of the convention is to conserve to the maximum
communicate to the Government of Nicaragua the
characteristics, effects and environmental impact extent possible the land- based and coastal -marine biological diversity of the
study of the construction of the road by virtue of its
international and community commitments Central American region for the benefit of present and future generations.
imposed by treaties, conventions, agreements and
legislative acts derived from the Tegucigalpa 546 (Article 1.) The convention contains detailed provisions aimed at achieving this
Protocol in the field of environment protection.”
objective. It includes chapters on Fundamental Principles (Chapter I), General
5. 92 In the present case, Costa Rica acted in violation of these
Obligations (Chapter II ) and Means of Implementation (Chapter III), among
obligations. As shown in Chapter 3, Costa Rica’s unilateral decision to build the
others. As with the trea ties considered above, Costa Rica’s Road project runs
Road without first conducting an environmental impact assessment, and even
afoul of many of the provisions of this agreement. Only a few examples will be
without blueprints, has caused significant harm to the environment of both
cited for purposes of illustration.
Nicaragua and Costa Rica. It clearly jeopardizes several objectives of the SICA
such as the respect and protection of the environment and the establishment of a
548 Convention for the Conservation of Biodiversity and the Protection of Wilderness Areas in
new ecological order. Costa Rica compounded these breaches by ignoring two
Central America, Managua, 5 June 1992, (Annex 23 to the Memorial of Costa Rica (CRM) in the
binding decisions of the CACJ ordering the suspension of work on the Road. 547 Dispute concerning Certain Activities Carried Out by Nicaragua in the Bor der Area (Costa Rica
v. Nicaragua) ),original Spanish text available at http://www.ecolex.org/server2.php/
libcat/docs/TRE/Multilateral/En/TRE001162.txt
549vention) (last visited 5 December 2012).
See the entry in Ecolex (maintained by the Food and Agriculture Organization of the United
Nations (FAO), the International Union for the Conservation of Nature and Natural Resources
(UNCN), and the United Nations Environment Programme (UNEP),
http://www.ecolex.org/ecolex/ledge/view/RecordDetails?id=TRE-001162&ind…,
546C.A.C.J. Judgement, 21 June 2012, op. cit. supra , (NM, Vol. II, Annex 4). indicating that the convention entered into force for Costa Rica on 20 December 1994 and f
547Ibid., Whereas IX. (NM, Vol. II, Annex 4). Nicaragua on 20 January 1996 (last visited 5 December 2012). 5. 95 The states parties undertake to ensure that activities within their order to comply fully wit h the convention. One of those actions is to ensure the
jurisdiction or control do not cause damage to biological diversity within their establishment of measures that contribute to the conservation of natural habitats
territories or areas bordering them. (Article 2(b).) As indicated above, Costa and their populations of natural species.
Rica’s Road project endangers biological diversity within both Costa Rica and of information between national ins
Nicaragua. Article 3 records that the conservation of biodiversity in habitats or American region, and other international organizations.
boundary waters requir es the will of all and external, regional and global established some of the kinds of measures mentioned, they were ignored entirely
cooperation. (Article 3.) Nicaragua has received no cooperation at all from in respect of the Road project. And Costa Rica failed co
Costa Rica in respect of the Road project, which furt her jeopardizes the information concerning the project, whether nationally, with countries in the
biological diversity of the two countries. Under Article 10, each state in the region – especially the one most directly affected, Nicaragua –
region commits, according to its capabilities, national programs and priorities, to international organizations.
take all possible measures to ensure the conservation of biodiversity and its exchange of information in a transboundary context:
sustainable use, as well as the development of its components within its national
jurisdiction, and to cooperate to the extent possible in regional border actions.
Not even the flexibility afforded by this article with regard to a state’s
capabilities, national programs and priorities would permit deliberate actions
incompatible with the objectives of the convention in general and this provision
this article, then states as follows:
in particular. And that describes Costa Rica’s actions in respect of its Road
project perfectly.
5. 96 A final group of examples of provisions of this agreement that
have not been observed by Costa Rica in relation to its Road project is provided
by Articles 13 and 33. Article 13 lists a number of actions that are to be taken in 550
551
552
210 5. 95 The states parties undertake to ensure that activities within their order to comply fully wit h the convention. One of those actions is to ensure the
jurisdiction or control do not cause damage to biological diversity within their establishment of measures that contribute to the conservation of natural habitats
territories or areas bordering them. (Article 2(b).) As indicated above, Costa and their populations of natural species.
Rica’s Road project endangers biological diversity within both Costa Rica and of information between national ins
Nicaragua. Article 3 records that the conservation of biodiversity in habitats or American region, and other international organizations.
boundary waters requir es the will of all and external, regional and global established some of the kinds of measures mentioned, they were ignored entirely
cooperation. (Article 3.) Nicaragua has received no cooperation at all from in respect of the Road project. And Costa Rica failed co
Costa Rica in respect of the Road project, which furt her jeopardizes the information concerning the project, whether nationally, with countries in the
biological diversity of the two countries. Under Article 10, each state in the region – especially the one most directly affected, Nicaragua –
region commits, according to its capabilities, national programs and priorities, to international organizations.
take all possible measures to ensure the conservation of biodiversity and its exchange of information in a transboundary context:
sustainable use, as well as the development of its components within its national
jurisdiction, and to cooperate to the extent possible in regional border actions.
Not even the flexibility afforded by this article with regard to a state’s
capabilities, national programs and priorities would permit deliberate actions
incompatible with the objectives of the convention in general and this provision 5. 97 In its Memorial in the Certain Activities
this article, then states as follows:
in particular. And that describes Costa Rica’s actions in respect of its Road
project perfectly.
5. 96 A final group of examples of provisions of this agreement that
have not been observed by Costa Rica in relation to its Road project is provided
by Articles 13 and 33. Article 13 lists a number of actions that are to be taken in 550
551entral American Biodiversity Convention, op. cit. supra, Article 13(c).
552bid., Article 13(g).
Ibid., Article 33. may be affected by potentially harmful actions.
This permits those States affected to take the
appropriate bilateral or regional measures in
sufficient time to prevent harm from occurring.
These measures encapsulate what Costa Rica
understands to be the inherent right of each State to
either mitigate poten tial harm, or to reject and
oppose any activities that may place their [ sic]
national territories and natural resources at risk of was cited in the
serious harm. 553
Regional Agreement on the
5. 98 With respect to its Road project Costa Rica failed to observe the
concluded in Panama City on 11 December 1992.
object and purpose of the convention, as Costa Rica itself explains it in this
entitled General Obligations, provides in paragraph 3 as follows: Adoption of
passage. Moreover, Costa Rica certainly did not respect what it characterizes as
Preventive Measures.
“the inherent right of each State” to take action to “mitigate potential harm” or at
least to “reject and oppose any activities that may place their [sic] national
territories and natural resources at risk of serious harm.” As has been seen, Costa
Rica not only did not exchange any information concerning its Road project with
Nicaragua, it affirmatively declined to do so when information was requested by
Nicaragua. Nicaragua therefore had no opportunity to “mitigate potential harm”
and was left to “reject and oppose” the environmentally destructive Road project
that could not be halted. It is thus clear that with respect to its Road project
Costa Rica is acting in utter disregard of this convention, as Costa Rica itself
project into the San Juan
interprets it.
554
December 1992, U.N. Doc. UNEP/CHW/C.l/INF.2 (Oct. 1993), available in 3 YB. INT'L
553 ENVTL. L., 1992, Doc. No. 10 (Appended Disk, Gunther Handl et al. eds., 1992), original
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicara,ua) Spanish text available in
CRM, para. 5.16. 001167&index=treaties (last visited 5 December 2012).
212 may be affected by potentially harmful actions.
This permits those States affected to take the
appropriate bilateral or regional measures in
sufficient time to prevent harm from occurring.
These measures encapsulate what Costa Rica
understands to be the inherent right of each State to
either mitigate poten tial harm, or to reject and 5. 99 A final Central American treaty that may be mentioned
oppose any activities that may place their [ sic]
national territories and natural resources at risk of was cited in the
serious harm. 553
Regional Agreement on the
5. 98 With respect to its Road project Costa Rica failed to observe the
concluded in Panama City on 11 December 1992.
object and purpose of the convention, as Costa Rica itself explains it in this
entitled General Obligations, provides in paragraph 3 as follows: Adoption of
passage. Moreover, Costa Rica certainly did not respect what it characterizes as
Preventive Measures.
“the inherent right of each State” to take action to “mitigate potential harm” or at
least to “reject and oppose any activities that may place their [sic] national
territories and natural resources at risk of serious harm.” As has been seen, Costa
Rica not only did not exchange any information concerning its Road project with
Nicaragua, it affirmatively declined to do so when information was requested by
Nicaragua. Nicaragua therefore had no opportunity to “mitigate potential harm”
and was left to “reject and oppose” the environmentally destructive Road project
that could not be halted. It is thus clear that with respect to its Road project
5. 100 Costa Rica’s dumping of debris and other waste from its Road
Costa Rica is acting in utter disregard of this convention, as Costa Rica itself
project into the San Juan
interprets it.
55Regional Agreement on the Transboundary Movement of Hazardous Wastes, Panama City, 11
December 1992, U.N. Doc. UNEP/CHW/C.l/INF.2 (Oct. 1993), available in 3 YB. INT'L
553 ENVTL. L., 1992, Doc. No. 10 (Appended Disk, Gunther Handl et al. eds., 1992), original
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicara,ua) Spanish text available in
CRM, para. 5.16. 001167&index=treaties (last visited 5 December 2012). 555
constitutes pollution of the San Juan. While this waste may not be hazardous disparages,
in itself, it can carry with it oil and other hydrocarbons that may be hazardous. It is perhaps not surprising that the conduct of Costa Rica that violates regional
As the report of CFIA, the Costa Rican Engineers Association, 556 shows, Costa treaties breaches bilateral agreements, as well.
Rica did not make the slightest effort to adopt or implement a preventive or a
precautionary approach in respect of pollution even of watercourses in its own
territory, let alone of the San Juan de Nicaragua River. This resulted in “the Nicaragua that should be mentioned in this connection is the Agreement on
release into the environment [i.e., the San Juan de Nicaragua River] of substances Border Protected Areas, known as the “SI
that could cause harm to humans or the environment.” Furthermore, Costa Rica presidents of the two states at Puntarenas , Costa Rica, on 15 December 1990.
refused to “cooperate with [Nicaragua] to take appropriate measures to apply the This agreement concerns the International System of Protected Areas for Peace
precautionary approach to pollution prevention” in respect of the Road project. (SI-A-PAZ), in the border area of Costa Rica and Nicaragua, which originated in
5. 101 Thus in deciding to proceed with its Road project without the First Central American Meeting on Management of Natural and Cultural
providing Nicaragua with so much as a hint that it was doing so, and in Resources held in San Jose, Costa Rica, in December 1974.
constructing the project without any environmental impact assessment or even
any blueprints or other plans, Costa Rica committ ed numerous violations of four paragraphs from the agreement’s pream ble, claiming that they “state the
agreements concluded by Central American States to protect the environment of object and purpose of the agreement”.
the region. The foregoing discussion of these agreements does not include all of
the regional treaties and other instruments in the fields of environme nt, 557
cooperation and integration whose letter and spirit Costa Rica’s Road project Economic Integration, known as Guatemala Protocol, 2217 U.N.T.S., A
American Social Integration Treaty, known as the San Salvador Treaty,
Sustainable Development of Central America, adopted at the Central American environment
summit meeting for sustainable development, Managua , Nicaragua, 12 and 13
http://www2.ohchr.org/english/law/compilation_democracy/alliance.htm (last visited 5 December
2012).
558
Costa Rica, 15 December 1990. (NM, Vol. II, Annex 7).
555 559
See the definition of the term “pollution” in Article 21 of the Convention on the Law of the 560
556-Navigational Uses of International Watercourses, supra note 93.
CFIA Report, op. cit. supra (NM, Vol. II, Annex4). CRM, para. 5.41.
214 555
constitutes pollution of the San Juan. While this waste may not be hazardous disparages,
in itself, it can carry with it oil and other hydrocarbons that may be hazardous. It is perhaps not surprising that the conduct of Costa Rica that violates regional
As the report of CFIA, the Costa Rican Engineers Association, 556shows, Costa treaties breaches bilateral agreements, as well.
Rica did not make the slightest effort to adopt or implement a preventive or a
precautionary approach in respect of pollution even of watercourses in its own 5. 102 Foremost among the bilateral agreements between Costa Rica and
territory, let alone of the San Juan de Nicaragua River. This resulted in “the Nicaragua that should be mentioned in this connection is the Agreement on
release into the environment [i.e., the San Juan de Nicaragua River] of substances Border Protected Areas, known as the “SI
that could cause harm to humans or the environment.” Furthermore, Costa Rica presidents of the two states at Puntarenas , Costa Rica, on 15 December 1990.
refused to “cooperate with [Nicaragua] to take appropriate measures to apply the This agreement concerns the International System of Protected Areas for Peace
precautionary approach to pollution prevention” in respect of the Road project. (SI-A-PAZ), in the border area of Costa Rica and Nicaragua, which originated in
5. 101 Thus in deciding to proceed with its Road project without the First Central American Meeting on Management of Natural and Cultural
providing Nicaragua with so much as a hint that it was doing so, and in Resources held in San Jose, Costa Rica, in December 1974.
constructing the project without any environmental impact assessment or even 5. 103 In its Memorial in the Certain Activities
any blueprints or other plans, Costa Rica committ ed numerous violations of four paragraphs from the agreement’s pream ble, claiming that they “state the
agreements concluded by Central American States to protect the environment of object and purpose of the agreement”.
the region. The foregoing discussion of these agreements does not include all of
the regional treaties and other instruments in the fields of environme nt, 557
See, e.g., Articles 26 and 35 of the Protoc
cooperation and integration whose letter and spirit Costa Rica’s Road project Economic Integration, known as Guatemala Protocol, 2217 U.N.T.S., A
American Social Integration Treaty, known as the San Salvador Treaty,
Sustainable Development of Central America, adopted at the Central American environment
summit meeting for sustainable development, Managua , Nicaragua, 12 and 13
http://www2.ohchr.org/english/law/compilation_democracy/alliance.htm (last visited 5 December
2012).
558 Agreement on Border Protected Areas, the “SI
Costa Rica, 15 December 1990. (NM, Vol. II, Annex 7).
555 559
See the definition of the term “pollution” in Article 21 of the Convention on the Law of the 560Ibid., Preamble, paras. 1 and 2.
556-Navigational Uses of International Watercourses, supra note 93. Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)
CFIA Report, op. cit. supra (NM, Vol. II, Annex4). CRM, para. 5.41. (7) The largest example of a tropical rainforest and the political will to put into practice projects for rational and sustained
located along Central America’s Caribbean coast
will be fully protected in the SI-A-PAZ; management of natural resources”, this has been given a premature but definitive
(8) The area has an extraordinary diversity of
habitats such as rainforests and riversides, rivers, burial by Costa Rica’s actions in rushing to construct its Road, which speak much
lagoons and wetlands, as well as a vast wealth and
diversity of fauna, and major potential for louder than its words.
ecotourism;
(9) The area is inhabited by marginalized rural
groups that have been unable to achieve sustainable
development due to a lack of financial resources a declaration (Article 1) and three constitute requests of international and other
and technical advice;
(10) There is an interest and the political will to put organizations (Articles 2-4). In the declaration, the parties agree: “To declare the
into practice projects for r ational and sustained
management of natural res ources, with respect for SI-A-PAZ the highest priority conservation project in both countries”.
the sovereign rights of each country, in order to
improve the quality of life of the local populations Twenty-two years after the two states solemnly agreed on this declaration, Costa
and those of both countries in general. 561
Rica has called into question its commitment to
5. 104 If these paragraphs do indeed capture the object and purpose of
the reckless and environmentally destructive construction of its Road.
the agreement, Costa Rica has acted in contravention of that object and purpose
in the construction of its Road project. It has drawn “[t]he largest example of a
tropical rainforest located along Central America’s Caribbean coast” into great
jeopardy rather than “fully protec t[ing]” it through the SI -A-PAZ agreement. It Porras 1856 Highway project violates fundamental principles of general
has likewise placed under serious threat the “extraordinary diversity of habitats” international law, environmental treaties of a universal character to which both
of the area, “as well as [the] vast wealth and diversity of fauna” found there, and Costa Rica and Nicaragua are parties, and regional as well as bilateral treaties
has probably eradicated all of the area’s attractiveness to ecotourists. The binding on the two states. These breaches begin with Cost Rica’s failure to
“marginalized rural groups” inhabiting the area could be further marginalized and notify Nicaragua of a project that posed significant risks of harm to the San Juan
otherwise threatened through the significant changes in the character of the area de Nicaragua
the road is likely to bring. And if there was on the part of Costa Rica “an interest construction of the Road:
561 562
SI-A-PAZ agreement, Preamble, paras. 7-10 (NM, Vol. II, Annex 7).
216 (7) The largest example of a tropical rainforest and the political will to put into practice projects for rational and sustained
located along Central America’s Caribbean coast
will be fully protected in the SI-A-PAZ; management of natural resources”, this has been given a premature but definitive
(8) The area has an extraordinary diversity of
habitats such as rainforests and riversides, rivers, burial by Costa Rica’s actions in rushing to construct its Road, which speak much
lagoons and wetlands, as well as a vast wealth and
diversity of fauna, and major potential for louder than its words.
ecotourism;
(9) The area is inhabited by marginalized rural 5. 105 Of the four operative provisions of the agreement, one consists of
groups that have been unable to achieve sustainable
development due to a lack of financial resources a declaration (Article 1) and three constitute requests of international and other
and technical advice;
(10) There is an interest and the political will to put organizations (Articles 2-4). In the declaration, the parties agree: “To declare the
into practice projects for r ational and sustained
management of natural res ources, with respect for SI-A-PAZ the highest priority conservation project in both countries”.
the sovereign rights of each country, in order to
improve the quality of life of the local populations Twenty-two years after the two states solemnly agreed on this declaration, Costa
and those of both countries in general. 561
Rica has called into question its commitment to
5. 104 If these paragraphs do indeed capture the object and purpose of
the reckless and environmentally destructive construction of its Road.
the agreement, Costa Rica has acted in contravention of that object and purpose
in the construction of its Road project. It has drawn “[t]he largest example of a F .
5. 106 This Chapter has shown that Costa Rica’s Juan Rafael Mora
tropical rainforest located along Central America’s Caribbean coast” into great
jeopardy rather than “fully protec t[ing]” it through the SI -A-PAZ agreement. It Porras 1856 Highway project violates fundamental principles of general
has likewise placed under serious threat the “extraordinary diversity of habitats” international law, environmental treaties of a universal character to which both
of the area, “as well as [the] vast wealth and diversity of fauna” found there, and Costa Rica and Nicaragua are parties, and regional as well as bilateral treaties
has probably eradicated all of the area’s attractiveness to ecotourists. The binding on the two states. These breaches begin with Cost Rica’s failure to
“marginalized rural groups” inhabiting the area could be further marginalized and notify Nicaragua of a project that posed significant risks of harm to the San Juan
otherwise threatened through the significant changes in the character of the area de Nicaragua
the road is likely to bring. And if there was on the part of Costa Rica “an interest construction of the Road:
561 562
SI-A-PAZ agreement, Preamble, paras. 7-10 (NM, Vol. II, Annex 7). Ibid., Article 1. information concerning the Road, failed to conduct any environmental impact
assessment, whether on the national or transboundary level, concerning a project
that was to involve more than 900 pieces of machinery operated by at least 35
construction companies, and undertook the project with “no plans or preliminary
563
studies” according to the Costa Rican Association of Engineers and Architects.
The result is an ugly gash along the 160- kilometer route of the Road, most of
which follows closely the right bank of the San Juan de Nicaragua River, leaving
an open environmental wound whose flow of sediment into the San Juan de
Nicargua has already caused great harm and will not be readily stanched. The
harm that such a project would cause to Nicaragua and to the ent ire San Juan de
Nicaragua River watershed would in fact have been obvious even to the casual
observer; it is detailed in Chapter 3.
5. 107 These conclusions are confirmed by the judgment of the Central
American Court of Justice of 21 June 2012 in the following terms:
THIRD: The State of Costa Rica acted without
consultation, in a unilateral, inappropriate and
hasty manner, violating international bilateral and
multilateral agreements validly contracted by
building the road in question, which cannot be
obviated by alleging internal provisions.
FOURTH: The State of Costa Rica started the
work in question without conducting the studies
and previous analyses required in the context of the
obligations imposed by Regional Community and
International Law, ignoring collaboration, mutual
understanding and communication between the
State Parties of all these conventions that should
564
563
CFIA Report, op. cit. supra, p. 25 (NM, Vol. II, Annex 4). Vol. II, Annex 4).
218information concerning the Road, failed to conduct any environmental impact
assessment, whether on the national or transboundary level, concerning a project
that was to involve more than 900 pieces of machinery operated by at least 35
construction companies, and undertook the project with “no plans or preliminary
563
studies” according to the Costa Rican Association of Engineers and Architects.
The result is an ugly gash along the 160- kilometer route of the Road, most of
which follows closely the right bank of the San Juan de Nicaragua River, leaving
an open environmental wound whose flow of sediment into the San Juan de
Nicargua has already caused great harm and will not be readily stanched. The
harm that such a project would cause to Nicaragua and to the ent ire San Juan de
Nicaragua River watershed would in fact have been obvious even to the casual
observer; it is detailed in Chapter 3.
5. 107 These conclusions are confirmed by the judgment of the Central
American Court of Justice of 21 June 2012 in the following terms:
THIRD: The State of Costa Rica acted without
consultation, in a unilateral, inappropriate and
hasty manner, violating international bilateral and
multilateral agreements validly contracted by
building the road in question, which cannot be
obviated by alleging internal provisions.
FOURTH: The State of Costa Rica started the
work in question without conducting the studies
and previous analyses required in the context of the
obligations imposed by Regional Community and
International Law, ignoring collaboration, mutual
understanding and communication between the
State Parties of all these conventions that should
564
563 C.A.C.J. Judgement, 21 June 2012 , op. cit. supra, 3
CFIA Report, op. cit. supra, p. 25 (NM, Vol. II, Annex 4). Vol. II, Annex 4). 5. 108 This catalogue of breaches , set forth in a judgment of a court of
the region and based on a consideration of the applicable legal authorities as well
as a visit to the site, leaves no doubt about the unilateral, reckless, and highly
destructive manner in which Costa Rica proceeded with its Road project, whose international law committed by Costa Rica and the significant damages caused to
environmental consequences will be felt in the area for years to come. Nicaragua’s territory which resulted and continues to result from these violations.
The present Chapter sets out the most urgent remediation measures to be taken in
order to avoid
particularly to the San Juan de
remedies further requested by Nicaragua from the Court (Section B).
220 5. 108 This catalogue of breaches , set forth in a judgment of a court of
the region and based on a consideration of the applicable legal authorities as well
as a visit to the site, leaves no doubt about the unilateral, reckless, and highly 6.1
destructive manner in which Costa Rica proceeded with its Road project, whose international law committed by Costa Rica and the significant damages caused to
environmental consequences will be felt in the area for years to come. Nicaragua’s territory which resulted and continues to result from these violations.
The present Chapter sets out the most urgent remediation measures to be taken in
order to avoid
particularly to the San Juan de
remedies further requested by Nicaragua from the Court (Section B).
6.2 including the President have so stated. It can easily
be confirmed by the Court by simply ordering Costa
Rica to produce such a document without going Nicaragua in its Application. H owever, the present case appears as the archetype
through a formal request for interim measures and
into the costly and lengthy exercise of public of a situation where the Court should use the power conferred upon it by Article
hearings. Thus, Nicaragua requests that the Court
exercises its statutory powers to order Costa Rica to 75.
produce this document.”
6.3 This suggestion was made on the basis of Article 75 of the Rules of
formally request Interim Measures of Protection envisaged by Article 41
the Court, according to which: Statute for reasons of expe
“1. The Court may at any time decide to examine
proceedings. It remains that the situation is alarming and that Costa Rica has taken
proprio motu whether the circumstances of the case
require the indication of provisional measures which no measure to stop or at least mitigate the serious harms caused to the San Juan
ought to be taken or complied with by any or all of
the parties.”
River by the construction of the Road.
6.4 As the Court noted in the LaGrand case:
“… a provision of this kind has substantially
urgency to remedy them were not fully established to the sa tisfaction of the Court
featured in the Rules of Court since 1936, and (…),
if the Court has not, to date, made use of the power
conferred upon it by this provision, the latter in the Application. However, now, these possible deficiencies are cured and both
appears nonetheless to be clearly established; (…)
the harms caused to the River and the urgency to take measures to stop or, at least,
the Court may make use of this power, irrespective
of whether or not it has been seised by the parties of
a request for the indication of provisional measures; alleviate them are now fully documented by Costa Rican
whereas in such a case it may, in the event of
particular in the Kondolf Report.
extreme urgency, proceed without holding oral
hearings; and whereas it is for the Court to decide in
each case if, in the light of the particular
circumstances of the case, it should make use of the
565
said power.” 566
567
e.g. para s. 2.26,3.4,3.5,3.15-3.18,3.20,3.26,3.34-3.36,3.40,3.46 and
Nación, Costa Rica "The damage had already taken place" 26 May 2012 (quoting Costa Rican
Deputy Minister of Environment Ana Lorena Guevara, who has explained that "The only thing we
could do was to take mitigation and compensation measures because the damage had already taken
565I.C.J., Order, 3 March 1999, LaGrand (Germany v. United States of America) , I.C.J. place" and continues "I n addition, road construction was already underway. The damages or
Reports1999, p. 14, para. 21. impacts had already taken place") (NM, Vol II, Annex.33).
222 including the President have so stated. It can easily 6.5
be confirmed by the Court by simply ordering Costa
Rica to produce such a document without going Nicaragua in its Application. H owever, the present case appears as the archetype
through a formal request for interim measures and
into the costly and lengthy exercise of public of a situation where the Court should use the power conferred upon it by Article
hearings. Thus, Nicaragua requests that the Court
exercises its statutory powers to order Costa Rica to 75.
produce this document.”
6.6
6.3 This suggestion was made on the basis of Article 75 of the Rules of
formally request Interim Measures of Protection envisaged by Article 41
the Court, according to which: Statute for reasons of expe
“1. The Court may at any time decide to examine
proceedings. It remains that the situation is alarming and that Costa Rica has taken
proprio motu whether the circumstances of the case
require the indication of provisional measures which no measure to stop or at least mitigate the serious harms caused to the San Juan
ought to be taken or complied with by any or all of
the parties.”
River by the construction of the Road.
6.4 As the Court noted in the LaGrand case:
6.7
“… a provision of this kind has substantially
urgency to remedy them were not fully established to the sa tisfaction of the Court
featured in the Rules of Court since 1936, and (…),
if the Court has not, to date, made use of the power
conferred upon it by this provision, the latter in the Application. However, now, these possible deficiencies are cured and both
appears nonetheless to be clearly established; (…)
the harms caused to the River and the urgency to take measures to stop or, at least,
the Court may make use of this power, irrespective
of whether or not it has been seised by the parties of
a request for the indication of provisional measures; alleviate them are now fully documented by Costa Rican
whereas in such a case it may, in the event of
particular in the Kondolf Report.
extreme urgency, proceed without holding oral
hearings; and whereas it is for the Court to decide in
each case if, in the light of the particular
circumstances of the case, it should make use of the
565
said power.” 56See above, para. 6.2.
56See LANAMME Report, (NM, Vol. II, Annex 3) and CFIA Report (NM, Vol. II, Annex 4); See
e.g. para s. 2.26,3.4,3.5,3.15-3.18,3.20,3.26,3.34-3.36,3.40,3.46 and
Nación, Costa Rica "The damage had already taken place" 26 May 2012 (quoting Costa Rican
Deputy Minister of Environment Ana Lorena Guevara, who has explained that "The only thing we
could do was to take mitigation and compensation measures because the damage had already taken
565I.C.J., Order, 3 March 1999, LaGrand (Germany v. United States of America) , I.C.J. place" and continues "I n addition, road construction was already underway. The damages or
Reports1999, p. 14, para. 21. impacts had already taken place") (NM, Vol II, Annex.33). 6.8 As explained in that Expert Report:
“Based on our extensive experience in controlling
and normalizing wildland road erosion processes to
protect water quality on both public and private road
systems, we recommend the following mitigation
and emergency erosion/sediment control measures
be undertaken immediately . The measures include
those designed to mitigate and prevent damage from
1) fillslope instability and mass wasting, 2) stream
crossing erosion and failure, 3) surface erosion from
road surfaces, and 4) erosion and gullying from
cutbanks, fillslopes and other bare soil areas. These
measures are those that are required, at a minimum,
to control ongoing impacts and reduce the risk of
future sediment delivery to the Río San Juan from
the existing road work. Their implementation
should be overseen by qualified engineers and
geologists specifically trained and expe568enced in
road restoration and erosion control.”
Then follows an enumeration of the urgent tasks to be accomplished:
“Task 1: Reduce the rate and frequency of road fill
failure slumps and landslides where the road crosses
the steeper hillslopes, especial ly in locations where
failed or eroded soil materials have been or could
potentially be delivered to the Río San Juan.
A. As soon as weather and soil conditions permit,
mobilize heavy earthmoving equipment to excavate
all unstable and potentially unstable sidecast fills
and fill materials. (…)
B. Dump trucks will be required for endhauling the
excavated spoil materials for disposal at stable, low
gradient locations where the materials will have no
potential for re-mobilization and delivery to streams
or wetlands.
56Kondolf Report, Section 5.1 – italics added (NM, Vol. II, Annex 1). 569
224 6.8 As explained in that Expert Report:
“Based on our extensive experience in controlling
and normalizing wildland road erosion processes to
protect water quality on both public and private road
systems, we recommend the following mitigation
and emergency erosion/sediment control measures
be undertaken immediately . The measures include
those designed to mitigate and prevent damage from
1) fillslope instability and mass wasting, 2) stream
crossing erosion and failure, 3) surface erosion from
road surfaces, and 4) erosion and gullying from
cutbanks, fillslopes and other bare soil areas. These
measures are those that are required, at a minimum,
to control ongoing impacts and reduce the risk of
future sediment delivery to the Río San Juan from
the existing road work. Their implementation
should be overseen by qualified engineers and
geologists specifically trained and exp568ienced in
road restoration and erosion control.”
Then follows an enumeration of the urgent tasks to be accomplished:
“Task 1: Reduce the rate and frequency of road fill
failure slumps and landslides where the road crosses
the steeper hillslopes, especial ly in locations where
failed or eroded soil materials have been or could
potentially be delivered to the Río San Juan.
A. As soon as weather and soil conditions permit,
mobilize heavy earthmoving equipment to excavate
all unstable and potentially unstable sidecast fills
and fill materials. (…)
B. Dump trucks will be required for endhauling the
excavated spoil materials for disposal at stable, low
gradient locations where the materials will have no
potential for re-mobilization and delivery to streams
or wetlands.
568Kondolf Report, Section 5.1 – italics added (NM, Vol. II, Annex 1). 56Ibid., Section 5.2. ii. stream crossing structures have not been designed
(engineered) to accommodate the 100 -year return
interval runoff event or
iii. road -stream cross ing bridges or culverts are
misaligned with the natural channels
Removal of these poorly designed and/or
constructed road-stream crossings should consist of:
i. excavating and removing the drainage structure,
ii. excavating the fill materials out of the s tream
crossing so as to "exhume" the original channel bed,
re-establish the natural thalweg channel gradient
and flood flow width, and provide stable sideslopes
with maximum 2:1 sideslope, and
iii. seed and mulch bare exposed soils for temporary
erosion control.
(…)
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. This
measure will address gully erosion and
hydrologically connected road segments that are
currently delivering sediment to the Río San Juan
and its tributaries.
A. As weather and soil conditions permit, and after
excavating all the fillslopes exhibiting instabilities
referenced in Recommendation #1 (abo ve) along
Route 1856, immediately construct temporary
rolling dips, cross road drains and/or waterbars at
average 15 meter intervals (or more frequently) to
drain road surface runoff to the outside edge of the
road.
B. Construct surface drainage structure s at close
enough intervals so they will not result in new gully 570
226ii. stream crossing structures have not been designed formation capable of transporting eroded sediment
(engineered) to accommodate the 100 -year return to the Río San Juan or its tributaries. (…)
interval runoff event or
C. Ensure that every drain or waterbar is
iii. road -stream cross ing bridges or culverts are constructed at a slightly steeper slope angle/gradient
misaligned with the natural channels than the existing road gradient where the drain is
constructed, so that they will be self
Removal of these poorly designed and/or self-maintaining.
constructed road-stream crossings should consist of:
D. Ditches should be drained under the road using
i. excavating and removing the drainage structure, ditch relief culverts installed at sufficient intervals
to prevent gullying of the fi
ii. excavating the fill materials out of the s tream hillside where they discharge.
crossing so as to "exhume" the original channel bed,
re-establish the natural thalweg channel gradient E. Ditch drains and road surface drains should be
and flood flow width, and provide stable sideslopes placed close to each road approach to tributary
with maximum 2:1 sideslope, and
stream crossings so as to divert surface runoff onto
adjacent natural, undisturbed (vegetated) hillslope s,
iii. seed and mulch bare exposed soils for temporary and thereby prevent or minimize road surface runoff
erosion control. delivery to streams that flow into the Río San Juan.
(…) F. Maintain all surface drainage structures and ditch
drains so they continue to function as intended and
Task 3: Immediately reduce road surface erosion so eroded sediment is not discharged to t he Río San
and sediment delivery by improving dispersion of
concentrated road runoff and increasing the number Juan or its tributaries. If drainage structures are
damaged by traffic or equipment, they should be
and frequency of road drainage structures. This rebuilt immediately, and before the next rainfall and
measure will address gully erosion and runoff event.”
hydrologically connected road segments that are
currently delivering sediment to the Río San Juan Task 4: Control surface erosion and resultant
and its tributaries. sediment delivery from bare s oil areas that were
exposed during clearing, grubbing and construction
activities in the last several years.
A. As weather and soil conditions permit, and after
excavating all the fillslopes exhibiting instabilities A. Concurrent with the completion of the
referenced in Recommendation #1 (abo ve) along excavation and road drainage improvements in
Route 1856, immediately construct temporary recommendations outlined in #1, #2 and #3 above,
rolling dips, cross road drains and/or waterbars at seed and mulch all bare soil areas with any potential
average 15 meter intervals (or more frequently) to for sediment delivery to nearby streams/wetlands
drain road surface runoff to the outside edge of the
with straw mulch at a rate of 4,485 kg/ha and native
road. seed at a rate of 56 kg/ha. If mulches other than
B. Construct surface drainage structure s at close
enough intervals so they will not result in new gully 570Kondolf Report, Section 5.4 (NM, Vol. II, Annex 1). wheat or rice straw are employed, ground coverage
should be at least 95%.
B. Cutbanks with slopes steeper than 50% will
likely require the combined use of seeding,
mulching and installation of rolled erosion control
fabrics, stapled to the slope, to contro l surface case, make a declaratory judgment.”
571
erosion.”
case - especially the fact that Costa Rica continues to breach its obligations and to
cause harm to Nicaragua -, such a judgment would not be “in itself appropriate
B . REMEDIES REQUESTED BY NICARAGUA
satisfaction.”
nevertheless constitutes a pre -requisite to a Court’s decision on the content of
6.9 In Chapters 3 to 5 of the present Memorial , Nicaragua has
Costa Rica’s responsibility.
demonstrated that Costa Rica committed and continues to commit internationally
wrongful acts and, therefore, that it entails Costa Rica's responsibility. Therefore,
it is for the Court to declare Costa Rica’s unlawful conduct and responsibility ( I.)
and, as a consequence, to order Costa Rica to immediately cease its internationally Costa Rica has breached and continues to breach a number of treaties it is a Party
to as well as several rules and principles of international law. Suffice it to recall
wrongful acts (II.) and provide appropriate guarantees of non-repetition (III.), and
to make full reparation of all damages caused to Nicaragua ( IV.). Moreover, here that Costa Rica has violated the following instruments:
having seriously breached its obligations under the 1858 Treaty, Costa Rica is no
more entitled to claim the benefits ensuing from the Treaty (V.).
572
19. See also P.C.I.J., Judgment, 16 December 1927, Factory at Chorzów, Series A, No. 13 , p. 20;
I.C.J., Judgment, 13 June 1951,
Judgment, 2 December 1963, Northern Cameroons (Cameroon v. United Kingdom), I.C.J. Reports
1963, p. 37.
573
Ireland v. Albania), I.C.J. Reports 1949, p. 35. See also the dispositif p. 36. See also 27 June 2001,
LaGrand (Germany v. United States of America), I.C.J. Reports 2001, p. 508, para. 116; Land and
Maritime Boundary between Cameroon and Nigeria (Cameroon
intervening), I.C.J. Reports
Application of the Convention on the Prevention and Punishment of the
(Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J. Reports 2007 , p. 234, para. 463, p.
235, para. 465 and p. 236, para. 469 and
57Ibid. , Section 5.5. Matters (Djibouti v. France), I.C.J. Reports 2008, p. 245, para. 204.
228 wheat or rice straw are employed, ground coverage
should be at least 95%.
B. Cutbanks with slopes steeper than 50% will
likely require the combined use of seeding, 6.10
mulching and installation of rolled erosion control
fabrics, stapled to the slope, to contro l surface case, make a declaratory judgment.”
571
erosion.”
case - especially the fact that Costa Rica continues to breach its obligations and to
cause harm to Nicaragua -, such a judgment would not be “in itself appropriate
B . REMEDIES REQUESTED BY NICARAGUA
satisfaction.”
nevertheless constitutes a pre -requisite to a Court’s decision on the content of
6.9 In Chapters 3 to 5 of the present Memorial , Nicaragua has
Costa Rica’s responsibility.
demonstrated that Costa Rica committed and continues to commit internationally
wrongful acts and, therefore, that it entails Costa Rica's responsibility. Therefore,
6.11
it is for the Court to declare Costa Rica’s unlawful conduct and responsibility ( I.)
and, as a consequence, to order Costa Rica to immediately cease its internationally Costa Rica has breached and continues to breach a number of treaties it is a Party
to as well as several rules and principles of international law. Suffice it to recall
wrongful acts (II.) and provide appropriate guarantees of non-repetition (III.), and
to make full reparation of all damages caused to Nicaragua ( IV.). Moreover, here that Costa Rica has violated the following instruments:
having seriously breached its obligations under the 1858 Treaty, Costa Rica is no
more entitled to claim the benefits ensuing from the Treaty (V.).
572P.C.I.J., Judgment, 25 May 1926, German Interests in Polish Upper Silesia , Series A, No. 7, p.
19. See also P.C.I.J., Judgment, 16 December 1927, Factory at Chorzów, Series A, No. 13 , p. 20;
I.C.J., Judgment, 13 June 1951,
Judgment, 2 December 1963, Northern Cameroons (Cameroon v. United Kingdom), I.C.J. Reports
1963, p. 37.
573
I.C.J., Judgment, 9 April 1949, Corfu Channel (United Kingdom of great Britain and Northern
Ireland v. Albania), I.C.J. Reports 1949, p. 35. See also the dispositif p. 36. See also 27 June 2001,
LaGrand (Germany v. United States of America), I.C.J. Reports 2001, p. 508, para. 116; Land and
Maritime Boundary between Cameroon and Nigeria (Cameroon
intervening), I.C.J. Reports
Application of the Convention on the Prevention and Punishment of the
(Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J. Reports 2007 , p. 234, para. 463, p.
235, para. 465 and p. 236, para. 469 and
57Ibid. , Section 5.5. Matters (Djibouti v. France), I.C.J. Reports 2008, p. 245, para. 204. - Nicaragua-Costa Rica Treaty of Limits (Jerez-Cañas) of 15 April 1858;
- Arbitral Award of President Cleveland of 22 March 1888;
- Awards of the Umpire EP Ale xander of 30 September 1897,
20 December 1897, 22 March 1898, 26 July 1899 and 10 March 1900;
- Convention on Wetlands of International Importance especially as
Waterfowl Habitat, Ramsar (Iran), 2 February 1971 as amended by the
Paris Protocol of December 1982, and Regina Amemendments, 28 May declaration by the Court that Costa Rica has entailed its responsibility to
1987;
- Convention Concerning the Protection of the World Cultural and Nicaragua with all the legal consequences described below.
Natural Heritage, adopted by the General Conference of UNESCO in
1972;
- Central American Convention for the Protection of the Environment, 12
December 1989;
- The Tegucigalpa Protocol to the Charter of the Organization of Central
American States of 13 December 1991;
- Agreement over the Border Protected Areas between Nicaragua and
Costa Rica (International Syst em of Protected Areas for Peace [SI-A- internationally wrongful act is under an obligation to cease that act, if it is
PAZ] Agreement). 15 December 1990;
- Convention on Biological Diversity, 5 June 1992; continuing.”
- Convention for the Conservation of the Biodiversity and Protection of eliminating the consequences of wrongful c onduct.”
the Main Wild Life Sites in Central America, 5 June 1992; and
Rica has not stopped the construction of Road 1856.
- Regional Agreement on th e Transboundary Movement of Hazardous
Wastes, 11 December 1992.
574
Greece intervening), para. 137. See also I.C.J., Judgment, 20 July 2012, Questions relating to the
And that Costa Rica has also violated several other rules and principles of obligation to prosecute or extradite (Belgiu m v. Senegal), para. 121; or ILC, Article 30 of the
Articles on responsibility of States for internationally wrongful acts and its commentary, Yearbook
international law such as: of the International Law Commission, 2001, vol. II, Part Two, pp. 88-91.
575
Yearbook of the International Law Commission , 2001, vol. II, Part Two, p. 89, commentary on
- the obligation to conduct an appropriate EIA; Article 30, para. 4.
576
conclusion of project”, 29 August 2012 (NM, Vol. II, Annex 40).
230 - Nicaragua-Costa Rica Treaty of Limits (Jerez-Cañas) of 15 April 1858; - the principle of non -harmful use of the territory; - the obligation to
- Arbitral Award of President Cleveland of 22 March 1888;
- Awards of the Umpire EP Ale xander of 30 September 1897, - principles embodied in the Declaration of the United Nations
20 December 1897, 22 March 1898, 26 July 1899 and 10 March 1900;
- Convention on Wetlands of International Importance especially as
Waterfowl Habitat, Ramsar (Iran), 2 February 1971 as amended by the 6.12
Paris Protocol of December 1982, and Regina Amemendments, 28 May declaration by the Court that Costa Rica has entailed its responsibility to
1987;
- Convention Concerning the Protection of the World Cultural and Nicaragua with all the legal consequences described below.
Natural Heritage, adopted by the General Conference of UNESCO in
1972;
- Central American Convention for the Protection of the Environment, 12
December 1989;
- The Tegucigalpa Protocol to the Charter of the Organization of Central
American States of 13 December 1991;
- Agreement over the Border Protected Areas between Nicaragua and 6.13
Costa Rica (International Syst em of Protected Areas for Peace [SI-A- internationally wrongful act is under an obligation to cease that act, if it is
PAZ] Agreement). 15 December 1990;
- Convention on Biological Diversity, 5 June 1992; continuing.”
- Convention for the Conservation of the Biodiversity and Protection of eliminating the consequences of wrongful c onduct.”
the Main Wild Life Sites in Central America, 5 June 1992; and
Rica has not stopped the construction of Road 1856.
- Regional Agreement on th e Transboundary Movement of Hazardous
Wastes, 11 December 1992.
57I.C.J., Judgment, 3 February 2012,
Greece intervening), para. 137. See also I.C.J., Judgment, 20 July 2012, Questions relating to the
And that Costa Rica has also violated several other rules and principles of obligation to prosecute or extradite (Belgiu m v. Senegal), para. 121; or ILC, Article 30 of the
Articles on responsibility of States for internationally wrongful acts and its commentary, Yearbook
international law such as: of the International Law Commission, 2001, vol. II, Part Two, pp. 88-91.
575Commentary on the Articles on
Yearbook of the International Law Commission , 2001, vol. II, Part Two, p. 89, commentary on
- the obligation to conduct an appropriate EIA; Article 30, para. 4.
57La Nación, Costa Rica “The Ministry for Public Works and Transport will sign contracts for
conclusion of project”, 29 August 2012 (NM, Vol. II, Annex 40). expressly refused to do so as the Central -American Court of Justice noted in its
577
Judgment of 21 June 2012.
Responsibility on the “Continued duty of performance” the other “legal
578
6.14 As shown in Chapter 3 above, the construction of Road 1856 has consequences of an internationally wrongful act … do not affect the continued
led, among other things, to the removal, destruction and dumping of soils, trees duty of the responsible State to perform the obligation breached.” Indeed,
and vegetation into the San Juan de Nicaragua River and to the increasing of the
sedimentation of the River. These acts, attributable to Costa Rica, constitute:
- a violation of the right of navigation of Nicaragua stemming from Article
IV of the 1858 Treaty of Limits as interpreted by successive arbitral and
judicial decisions and from the object and purpose of the 1858 Treaty of
Limits; and
- a violation of Nicaraguan territorial integrity and a failure to respect the
principle of non-harmful use of the State territory;
- a violation of a series of instruments and principles, binding on
579
Costa Rica, relating to the protection of the environment .
The construction of Road 1856 still being underway, these violations must
be considered as being continuing internationally wrongful acts. Therefore,
continuing, call for such a duty to – at last – perform the obligation breached. This
Nicaragua requests the Court to order that Costa Rica shall immediately
is in parti cular the case for
cease the constructi on of Road 1856 and all other linked constructions
underway that affect or may affect the rights of Nicaragua. Nicaragua concerning the construction of road 1856. By not consulting Nicaragua,
not giving it any information concerning the construction of the Road, Costa Rica
6.15 However the mere cessation of on -going wrongful conduct is not
has breached its obligation to do so stemming from the 1858 Treaty of Limits as
the sole consequence of other breaches attributable to Costa Rica.
577 580
578C.A.C.J., Judgment, 21 June 2012 (NM, Vol. II, Annex 13).
579See Chapter 3 above for a more detailed analysis; see also para. 4.15 above. Yearbook of the In ternational Law Commission , 2001, vol. II, Part Two, p. 88, commentary on
See para. 6.11 above. Article 29, para. (2).
232expressly refused to do so as the Central -American Court of Justice noted in its
577 6.16
Judgment of 21 June 2012.
Responsibility on the “Continued duty of performance” the other “legal
578
6.14 As shown in Chapter 3 above, the construction of Road 1856 has consequences of an internationally wrongful act … do not affect the continued
led, among other things, to the removal, destruction and dumping of soils, trees duty of the responsible State to perform the obligation breached.” Indeed,
and vegetation into the San Juan de Nicaragua River and to the increasing of the
sedimentation of the River. These acts, attributable to Costa Rica, constitute:
- a violation of the right of navigation of Nicaragua stemming from Article
IV of the 1858 Treaty of Limits as interpreted by successive arbitral and
judicial decisions and from the object and purpose of the 1858 Treaty of
Limits; and
- a violation of Nicaraguan territorial integrity and a failure to respect the
principle of non-harmful use of the State territory;
- a violation of a series of instruments and principles, binding on
579
Costa Rica, relating to the protection of the environment .
The construction of Road 1856 still being underway, these violations must 6.17
be considered as being continuing internationally wrongful acts. Therefore,
continuing, call for such a duty to – at last – perform the obligation breached. This
Nicaragua requests the Court to order that Costa Rica shall immediately
is in parti cular the case for
cease the constructi on of Road 1856 and all other linked constructions
underway that affect or may affect the rights of Nicaragua. Nicaragua concerning the construction of road 1856. By not consulting Nicaragua,
not giving it any information concerning the construction of the Road, Costa Rica
6.15 However the mere cessation of on -going wrongful conduct is not
has breached its obligation to do so stemming from the 1858 Treaty of Limits as
the sole consequence of other breaches attributable to Costa Rica.
577 580
578C.A.C.J., Judgment, 21 June 2012 (NM, Vol. II, Annex 13). Commentary on the Articles on responsibility of States for internationally wrongful acts,
579See Chapter 3 above for a more detailed analysis; see also para. 4.15 above. Yearbook of the In ternational Law Commission , 2001, vol. II, Part Two, p. 88, commentary on
See para. 6.11 above. Article 29, para. (2). 581
well as general international law. These violations by omissions constitute and continues to refuse to discuss the issue. In November and December 2011,
continuing unlawful acts of Costa Rica which call not only for cessation but also Nicaragua sent two Notes Verbale s to Costa Rica explaining its position.
for positive performance of the obligation breached. Therefore, Nicaragua response, the President of Costa Rica
requests the Court to order that Costa Rica shall not undertake any future reason to offer explanations to the Government of Nicaragua,”
development i n the area without an appropriate transboundary Environmental “not taking even one step back.”
Impact Assessment and that this assessment must be presented in a timely fashion
to Nicaragua for its analysis and reaction. 582
Costa Rica to cease its unlawful conduct
3 . Nicaragua is Entitled to Appropriate Guarantees of Non -
decisions of the CACJ which ordered the suspension of the works on Road 1856.
Repetition by Costa Rica of its Internationally Wrongful
Acts On 17 January 2012, the CACJ
6.18 In addition to the cessation of the internationally wrongful act and suspension of the construction of Road 1856.
with this Order and the CACJ condemned this failure in its Judgment of 21 June
the performance of the obligations breached , the responsible State “is under an
2012.
obligation […] to offer appropriate assurances and guarantees of non-repetition, if
circumstances so require.” 583 The circumstances of the present case clearly require construction of Road 1856.
circumstances of the Avena case, where the Court refused to grant the guarantees
it.
of non-repetition requested by Mexico after it had noted “that the United States
6.19 The multiple and repeated internationally wrongful acts of Costa
has been making considerable efforts to ensure that” the violation complained of
Rica has cast serious doubt on its intention to uphold its obligations v is-à-vis
Nicaragua. As explained in Chapter 4 and 5, Nicaragua has invited Costa Rica to
584
discuss the issue of the road several times. But Costa Rica has abruptly refused
585December 2011 (Source: EFE / 13 December 2011) (NM, Vol. II, Annex 24).
581 586
See paras. 4.20-4.27 and 4.37-4.41 above.
582Application Instituting Proceedings, 21 December 2011, Construction of a Road in Costa Rica June 2012, Whereas IX and ruling X (NM, Vol. II, Annex 13).
along the San Juan River (Nicaragua v. Costa Rica), para. 50. 587
583Article 30 of the Articles on responsibility of States for internationally wrongful acts, Yearbook Ruling Illegitimate”, 3 July 2012 , available at
of the International Law Commission, 2001, vol. II, Part Two, p. 88. july/03/costarica120070301.htm
234 581
well as general international law. These violations by omissions constitute and continues to refuse to discuss the issue. In November and December 2011,
continuing unlawful acts of Costa Rica which call not only for cessation but also Nicaragua sent two Notes Verbale s to Costa Rica explaining its position.
for positive performance of the obligation breached. Therefore, Nicaragua response, the President of Costa Rica
requests the Court to order that Costa Rica shall not undertake any future reason to offer explanations to the Government of Nicaragua,”
development i n the area without an appropriate transboundary Environmental “not taking even one step back.”
Impact Assessment and that this assessment must be presented in a timely fashion
6.20
to Nicaragua for its analysis and reaction. 582
Costa Rica to cease its unlawful conduct
3 . Nicaragua is Entitled to Appropriate Guarantees of Non -
decisions of the CACJ which ordered the suspension of the works on Road 1856.
Repetition by Costa Rica of its Internationally Wrongful
Acts On 17 January 2012, the CACJ
6.18 In addition to the cessation of the internationally wrongful act and suspension of the construction of Road 1856.
with this Order and the CACJ condemned this failure in its Judgment of 21 June
the performance of the obligations breached , the responsible State “is under an
587
2012.
obligation […] to offer appropriate assurances and guarantees of non-repetition, if
circumstances so require.” 583 The circumstances of the present case clearly require construction of Road 1856.
circumstances of the Avena case, where the Court refused to grant the guarantees
it.
of non-repetition requested by Mexico after it had noted “that the United States
6.19 The multiple and repeated internationally wrongful acts of Costa
has been making considerable efforts to ensure that” the violation complained of
Rica has cast serious doubt on its intention to uphold its obligations v is-à-vis
Nicaragua. As explained in Chapter 4 and 5, Nicaragua has invited Costa Rica to
584
discuss the issue of the road several times. But Costa Rica has abruptly refused El País, Costa Rica, “Chinchilla Defends Highway Criticized by Nicaragua, Rejects Dialogue”,
585December 2011 (Source: EFE / 13 December 2011) (NM, Vol. II, Annex 24).
581 586Ibid.
See paras. 4.20-4.27 and 4.37-4.41 above. C.A.C.J., Order, 17 January 2012, (NM, Vol. II, Annex 13). See also, C.A.C.J., Judgment, 21
582Application Instituting Proceedings, 21 December 2011, Construction of a Road in Costa Rica June 2012, Whereas IX and ruling X (NM, Vol. II, Annex 13).
along the San Juan River (Nicaragua v. Costa Rica), para. 50. 587Ibid., point 8 of the
583Article 30 of the Articles on responsibility of States for internationally wrongful acts, Yearbook Ruling Illegitimate”, 3 July 2012 , available at
of the International Law Commission, 2001, vol. II, Part Two, p. 88. july/03/costarica120070301.htm 588
by Mexico would not occur again . Similarly, in DRC v. Uganda , the Court Carlos River. As explained above,
considered that “ the commitments assumed by Uganda under the Tripartite likely to significantly affect the San Juan de Nicaragua River.
Agreement must be regarded as meeting the DRC’s request for specific
589
guarantees and assurances of non-repetition.” In the present case, the Defendant
the Río San Juan was badly sited and has been poorly constructed, using many of
categorically refused to give any guarantee and declared on the contrary that it
the same practices that caused extensive damage in North America in the 1950s
would not take “even one step back”. 590
and 1960s, and which are now explicitly prohibited in North America, Europe,
and parts of Asia.”
6.21 Moreover, it is worth noting that Road 1856 is only an element of a
practices, are likely to cause significant damage
vast road building project of more than 5 00 kilometres that is likely to
Juan de Nicaragua River and, therefore, to the San Juan itself.
591
significantly harm Nicaragua. In effect, in addition to the Road 1856 , works
have been undertaken on roads that access to the Road 1856 . Several of these
roads 592cross distributaries of the San Juan de Nicaragua River , such as the San
they call for an order by the Court of guarantees of non-repetition.
588I.C.J., Judgement, 31 March 2004, Avena and Other Mexican Nationals (Mexico v. United explained that:
States of America), I.C.J. Reports 2004, pp. 68-69, para. 149.
589I.C.J., Judgment, 19 December 2005, Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Uganda), I.C.J. Reports 2005 , p. 26, para. 257 ; see also:
I.C.J., Judgment, 27 June 2001, LaGrand (Germany v. United States of America) , I.C.J. Reports
5901, pp. 512-513, paras. 123-124.
591See note 15 above.
CFIA Report, para. 1.3 [“ Route 1856 extends along the approximately 160 kilometres between
Los Chiles and Delta (in front of Isla Calero) and the arteries that access it, which total
approximately 400 additional kilometres] (NM, Vol. II, Annex 4). See also FUNDENIC SOS &
FONARE, Technical Report “Evaluation of the environmental impacts caused by the construction
of a 120 km long road parallel to the right bank of the San Juan de Nicaragua River” , March 2012,
para. 1.3 (Annex 115 to the Counter Memorial of Nicaragua (NCM) in the Dispute concerning
592tain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)) .
See e.g. the Boca Río Sucio – Caño Tambor hillside route, the Boca Tapada – Boca San Carlos 593
route, the Buenos Aires – Moravia – Crucitas route or the Route 760 Parque – La Trocha CFIA 594
Report, p. 4, diagram No. 1, p. 5, diagram No. 2, p. 8, diagram No. 3, p. 14, diagram No. 4 and 595
p. 20, diagram No. 5 (NM, Vol. II, Annex 4).
236 588
by Mexico would not occur again . Similarly, in DRC v. Uganda , the Court Carlos River. As explained above,
considered that “ the commitments assumed by Uganda under the Tripartite likely to significantly affect the San Juan de Nicaragua River.
Agreement must be regarded as meeting the DRC’s request for specific
589 6.22
guarantees and assurances of non-repetition.” In the present case, the Defendant
the Río San Juan was badly sited and has been poorly constructed, using many of
categorically refused to give any guarantee and declared on the contrary that it
the same practices that caused extensive damage in North America in the 1950s
would not take “even one step back”. 590
and 1960s, and which are now explicitly prohibited in North America, Europe,
and parts of Asia.”
6.21 Moreover, it is worth noting that Road 1856 is only an element of a
practices, are likely to cause significant damage
vast road building project of more than 5 00 kilometres that is likely to
Juan de Nicaragua River and, therefore, to the San Juan itself.
591
significantly harm Nicaragua. In effect, in addition to the Road 1856 , works
have been undertaken on roads that access to the Road 1856 . Several of these
6.23
roads 592cross distributaries of the San Juan de Nicaragua River , such as the San
they call for an order by the Court of guarantees of non-repetition.
6.24
588I.C.J., Judgement, 31 March 2004, Avena and Other Mexican Nationals (Mexico v. United explained that:
States of America), I.C.J. Reports 2004, pp. 68-69, para. 149.
589I.C.J., Judgment, 19 December 2005, Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Uganda), I.C.J. Reports 2005 , p. 26, para. 257 ; see also:
I.C.J., Judgment, 27 June 2001, LaGrand (Germany v. United States of America) , I.C.J. Reports
5901, pp. 512-513, paras. 123-124.
591See note 15 above.
CFIA Report, para. 1.3 [“ Route 1856 extends along the approximately 160 kilometres between
Los Chiles and Delta (in front of Isla Calero) and the arteries that access it, which total
approximately 400 additional kilometres] (NM, Vol. II, Annex 4). See also FUNDENIC SOS &
FONARE, Technical Report “Evaluation of the environmental impacts caused by the construction
of a 120 km long road parallel to the right bank of the San Juan de Nicaragua River” , March 2012,
para. 1.3 (Annex 115 to the Counter Memorial of Nicaragua (NCM) in the Dispute concerning
592tain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)) .
See e.g. the Boca Río Sucio – Caño Tambor hillside route, the Boca Tapada – Boca San Carlos 593
route, the Buenos Aires – Moravia – Crucitas route or the Route 760 Parque – La Trocha CFIA 594See paras. 3.77-3.78 above.
Report, p. 4, diagram No. 1, p. 5, diagram No. 2, p. 8, diagram No. 3, p. 14, diagram No. 4 and 595Kondolf Report, Section 6.0 (NM, Vol. II, Annex 1).
p. 20, diagram No. 5 (NM, Vol. II, Annex 4). Ibid., Section 4.9 essentially the reinforcement of a continuing legal
relationship and the fo cus is on the future, not the
596
past.”
6.25 Therefore, neither a declaration by the Court that Costa Rica has
breached the obligations it owes to Nicaragua, nor declarations to the effect that it
And the Permanent Court went on to say that:
must cease its internationally wrongful acts and perform its continuing obligations
can dispense Costa Rica from its duty to make full reparation for said acts.
4 . Nicaragua is Entitled to Full Reparation from Costa Rica for
All Damages Caused by its Internationally Wrongful Acts
6.26 As the Permanent Court of International Justice put it, “[i]t is a
principle of international law that the breach of an engagement involves an
case-law of the World Court,
597
obligation to make reparation in an adequate form.” The adequate form of
2001 ILC Articles:
reparation “depend[s] upon the concrete circumstances surrounding each case and
598
the precise nature and scope of the injury.” 599
600
6.27 In a famous dictum, the PCIJ explained that: 601
Nagymaros Project (Hungary/Slovakia), I.C.J. Reports 1997, p. 80, para. 149; I.C.J., Judgment, 14
February 2002, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
596 Commentary on the Articles on responsibility of States for internationally wrongful acts, I.C.J. Reports 2002 , pp. 31 -32, para. 76 ; I.C.J, Adv isory Opinion, 9 July 2004,
Yearbook of the International Law Commission , 2001, vol. II, Part Two, p. 90, commentary on Consequences of the Construction of a Wall in the Occupied Palestinian Territory, I.C.J. Reports
597icle 30, para. (11). 2004, p. 198, para. 152; I.C.J., Judgment, 19 December 2005, Armed Activities on the Territory of
P.C.I.J., Judgment, 26 July 1927, Factory at Chorzów, Jurisdiction, Series A, No. 9, p. 21 and the Congo (Democratic Republic of the Congo v. Uganda), I.C.J. Reports 2005 , p. 257, para. 259;
13 September 1928, Series A, No. 17, p. 29. See also in the ICJ most recent case law, Judgment, I.C.J., Judgment, 26 February 2007,
27 June 2001, LaGrand (Germany v. United States of Am erica), I.C.J. Reports 2001 , p. 485, Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J.
para. 48; Judgment, 14 February 2002, Arrest Warrant of 11 April 2000 (Democratic Republic of Reports 2007, pp. 232 -233, para. 460 ; I.C.J., Judgment, 20 April 2010, Pulp Mills on the River
the Congo v. Belgium), I.C.J. Reports 2002 , pp. 31 -32, para. 76; Judgement, 31 March 2004, Uruguay (Argentina v. Uruguay), I.C.J. Reports 2010 , p. 104, para. 274 ; I.C.J., Judgment, 30
Avena and Other Mexican Nationals (Mexico v. United States of America), I.C.J. Reports 2004, p. November 2010, Ahmadou Sadio Diallo (Republic of Guinea
59, para. 119; Judgment, 3 February 2012, Jurisdictional immunities of the State (Germany v. Italy: Congo), para. 161 ; I.C.J., Judgment, 3 February 2012,
598ece intervening), para. 136. (Germany v. Italy: Greece intervening) , para. 137.
Avena and Other Mexican Nationals (Mexico v. United States of America), I.C.J. Reports 2004, responsibility of States for internationally
p. 59, para. 119. Commission, 2001, vol. II, Part Two, p. 95.
238 essentially the reinforcement of a continuing legal
relationship and the fo cus is on the future, not the
596
past.”
6.25 Therefore, neither a declaration by the Court that Costa Rica has
breached the obligations it owes to Nicaragua, nor declarations to the effect that it
And the Permanent Court went on to say that:
must cease its internationally wrongful acts and perform its continuing obligations
can dispense Costa Rica from its duty to make full reparation for said acts.
4 . Nicaragua is Entitled to Full Reparation from Costa Rica for
All Damages Caused by its Internationally Wrongful Acts
6.26 As the Permanent Court of International Justice put it, “[i]t is a
6.28
principle of international law that the breach of an engagement involves an
case-law of the World Court,
597
obligation to make reparation in an adequate form.” The adequate form of
2001 ILC Articles:
reparation “depend[s] upon the concrete circumstances surrounding each case and
598
the precise nature and scope of the injury.” 599
P.C.I.J., Judgment, 13 September 1928, Factory at Chorzów, Jurisdiction, Series A, No. 17, p.
600
Ibid.
6.27 In a famous dictum, the PCIJ explained that: 601See among the recent case law of the Court: I.C.J., Judgment, 25 September 1997 , Gabčíkovo-
Nagymaros Project (Hungary/Slovakia), I.C.J. Reports 1997, p. 80, para. 149; I.C.J., Judgment, 14
February 2002, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
596Commentary on the Articles on responsibility of States for internationally wrongful acts, I.C.J. Reports 2002 , pp. 31 -32, para. 76 ; I.C.J, Adv isory Opinion, 9 July 2004,
Yearbook of the International Law Commission , 2001, vol. II, Part Two, p. 90, commentary on Consequences of the Construction of a Wall in the Occupied Palestinian Territory, I.C.J. Reports
597icle 30, para. (11). 2004, p. 198, para. 152; I.C.J., Judgment, 19 December 2005, Armed Activities on the Territory of
P.C.I.J., Judgment, 26 July 1927, Factory at Chorzów, Jurisdiction, Series A, No. 9, p. 21 and the Congo (Democratic Republic of the Congo v. Uganda), I.C.J. Reports 2005 , p. 257, para. 259;
13 September 1928, Series A, No. 17, p. 29. See also in the ICJ most recent case law, Judgment, I.C.J., Judgment, 26 February 2007,
27 June 2001, LaGrand (Germany v. United States of Am erica), I.C.J. Reports 2001 , p. 485, Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J.
para. 48; Judgment, 14 February 2002, Arrest Warrant of 11 April 2000 (Democratic Republic of Reports 2007, pp. 232 -233, para. 460 ; I.C.J., Judgment, 20 April 2010, Pulp Mills on the River
the Congo v. Belgium), I.C.J. Reports 2002 , pp. 31 -32, para. 76; Judgement, 31 March 2004, Uruguay (Argentina v. Uruguay), I.C.J. Reports 2010 , p. 104, para. 274 ; I.C.J., Judgment, 30
Avena and Other Mexican Nationals (Mexico v. United States of America), I.C.J. Reports 2004, p. November 2010, Ahmadou Sadio Diallo (Republic of Guinea
59, para. 119; Judgment, 3 February 2012, Jurisdictional immunities of the State (Germany v. Italy: Congo), para. 161 ; I.C.J., Judgment, 3 February 2012,
598ece intervening), para. 136. (Germany v. Italy: Greece intervening) , para. 137 . See also Article 34 of the Articles on
Avena and Other Mexican Nationals (Mexico v. United States of America), I.C.J. Reports 2004, responsibility of States for internationally
p. 59, para. 119. Commission, 2001, vol. II, Part Two, p. 95. Article 31 prohibition on Uruguay’s building of the Orion (Botnia) mill, failing consent by
Reparation Argentina, after the expiration of the period for negotiation”
1.The responsible State is under an obligation to
[had] not breached substantive obligations arising under the 1975 Statute”
make full reparation for the injury caused by the
internationally wrongful act. consequence, the Court declared itself unable to grant reparation under the form of
Article 34
compensation or restitutio in integrum and found “that the declaration by the
Forms of reparation
Court of [the] breach [of Uruguay’s procedural obligations] constitutes
Full reparation for the injury caused by the appropriate satisfaction.”
internationally wrongful act shall take the form of
restitution, compensation and satisfaction, either
singly or in combination…
Article 35
continuing – which should lead the Court to order Costa Rica to immediately
Restitution
cease its internally wrongful acts – but also, Nicaragua has suffered – and is still
A State responsible for an internationally wrongful
act is under an obligation to make restitution, that is,
to re-establish the situation which existed before the suffering – serious harms as a consequence of Costa Rica’s unlawful conduct.
wrongful act was committed, provided and to the
extent that restitution:
(a) Is not materially impossible;
(b) Does not involve a burden out of all complying with this fundamental obligation of restitution. Nicaragua is therefore
proportion to the benefit deriving from restitution entitled to request the Court to order Costa Ri ca to restore the status quo ante .
instead of compensation.
This implies that Costa Rica shall at least:
6.29 However, it is important to note in this respect that the facts of the
present case are different from those of the Pulp Mills case since, contrary to
Argentina, Nicaragua has suffered, and is suffering, effective damages. In its
Judgment of 20 April 2010, the Court found that “the procedural obligations 602
under the 1975 Statute [of the Uruguay River” did not entail any ensui ng 603orts 2010, p. 103, para. 275.
604
240 Article 31 prohibition on Uruguay’s building of the Orion (Botnia) mill, failing consent by
Reparation Argentina, after the expiration of the period for negotiation”
1.The responsible State is under an obligation to
[had] not breached substantive obligations arising under the 1975 Statute”
make full reparation for the injury caused by the
internationally wrongful act. consequence, the Court declared itself unable to grant reparation under the form of
Article 34
compensation or restitutio in integrum and found “that the declaration by the
Forms of reparation
Court of [the] breach [of Uruguay’s procedural obligations] constitutes
Full reparation for the injury caused by the appropriate satisfaction.”
internationally wrongful act shall take the form of
restitution, compensation and satisfaction, either
singly or in combination…
6.30
Article 35
continuing – which should lead the Court to order Costa Rica to immediately
Restitution
cease its internally wrongful acts – but also, Nicaragua has suffered – and is still
A State responsible for an internationally wrongful
act is under an obligation to make restitution, that is,
to re-establish the situation which existed before the suffering – serious harms as a consequence of Costa Rica’s unlawful conduct.
wrongful act was committed, provided and to the
extent that restitution:
(a) Is not materially impossible; 6.31
(b) Does not involve a burden out of all complying with this fundamental obligation of restitution. Nicaragua is therefore
proportion to the benefit deriving from restitution entitled to request the Court to order Costa Ri ca to restore the status quo ante .
instead of compensation.
This implies that Costa Rica shall at least:
6.29 However, it is important to note in this respect that the facts of the
present case are different from those of the Pulp Mills case since, contrary to - plant trees in order to re-establish the ravaged vegetation and landscape;
- rebuild the right bank of the San Juan River where it has been affected by
Argentina, Nicaragua has suffered, and is suffering, effective damages. In its construction works; and
Judgment of 20 April 2010, the Court found that “the procedural obligations 602
I.C.J., Judgment, 20 April 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay), I.C.J.
under the 1975 Statute [of the Uruguay River” did not entail any ensui ng 603orts 2010, p. 103, para. 275.
604bid., p. 104, para. 276.
Ibid., p. 106, para. 282. - restore the natural flow of the waters that flow through the south basin to
the San Juan River which has been modified as a consequence of the
construction works which also and consequently has modified the drainage
of the surrounding wetlands in the lower San Juan and its delta.
-and comply with the recommendations of the experts on the works
necessary for full restoration of the status quo ante.
The long term treatment recommended by Dr Kondolf and his team is de scribed
605
in some details in Chapter 3 of the present Memorial.
6.32 However, even if and when faithfully executed by Costa Rica, this be assessed at the present stage
duty to re -establish the status quo ante , might avoid further future harm to be compensation be assessed in a separate phase of the proceedings.
caused to Nicaragua and the San Juan River, but it will not make good the harm
606
suffered since the construction was undertaken and until the restitutio in integrum 607
3.1.4, 4.5, 4.9, 4.10 and 66 (NM, Vol. II, Annex 1).
608
is achieved. Therefore, in conformity with the well -established rule embodied in
Annex 1) and 6 and EPN, “Dredging Project Technical Evaluation Analysis 2011: Improving
Article 36 of the Articles on the responsibility of States for internationally Navigation on the San Juan River,” 23 January 2012, p. 2
Nicaragua (NCM) in the Dispute concerning Certain Activities Carried Out by Nicaragua in the
Border Area (Costa Rica v. Nicaragua) ); INETER, “Summary of Measurements of Liquid and
wrongful acts, Costa Rica “is under an obligation to compensate for the damage Suspended Solids Content During the Years 2006, 2011, 2012 (Annex 16 to the Counter Memorial
of Nicaragua (NCM) in the Dispute concerning Certain Activities Carried Out by Nicaragua in the
Border Area (Costa Rica v. Nicaragua)); see also Diario Extra, Costa Rica “ Nicaragua requests
caused” by its internationally wrongful acts, “insofar as such damage is not made
studies on the Soberania Road,” 13 December 2011 (quoting Nicaraguan Vice Minister of Foreign
good by restitution.” Affairs, Valdrak Jaentschke, who has explained that Costa Rica’s road construction pr
caused “slopes to deteriorate which in turn leads to sedimentation in the San Juan River, affecting
[Nicaragua’s] dredging works, navigation, and altering the ecological balance of the species that
live in the River.”) (NM, Vol. II, Annex 23)
609
6.33 In the present case, Costa Rica must compensate Nicaragua for the 4.5. (NM, Vol.II, Annex 1)
610
damages already suffered and which cannot be rubbed out by any kind of Reports 1980, pp. 44 -45, para. 6 of the d
Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) , Merits, I.C.J. Reports 1974, pp.
204-206, paras. 76-77 ; I.C.J., Judgment, 27 June 1986, Military and Paramilitary Activities in and
restitutio, such as: against Nicaragua (Nicaragua v. United States of America)
para. 284 ; I.C.J., Judgment, 19 December 2005,
(Democratic Republic of the Congo v. Uganda)
605 Judgment, 30 November 2010,
See paras 3.96-3.98 above and see the Kondolf Report Section 5.6 (NM, Vol. II, Annex 1). Republic of the Congo), para. 164.
242 - restore the natural flow of the waters that flow through the south basin to
the San Juan River which has been modified as a consequence of the - the cost of the cleaning of the San Juan de Nicaragua (the removal of
construction works which also and consequently has modified the drainage soils, trees and other ve getation
of the surrounding wetlands in the lower San Juan and its delta. of the water of the San Juan River
-and comply with the recommendations of the experts on the works
- additional costs for the dredging;
necessary for full restoration of the status quo ante.
- losses and increased costs in the sector of tourism, fishing and public
The long term treatment recommended by Dr Kondolf and his team is de scribed health.
605
in some details in Chapter 3 of the present Memorial.
6.34
6.32 However, even if and when faithfully executed by Costa Rica, this be assessed at the present stage
duty to re -establish the status quo ante , might avoid further future harm to be compensation be assessed in a separate phase of the proceedings.
caused to Nicaragua and the San Juan River, but it will not make good the harm
606See e.g. paras. 3.2 and 3.77 above.
suffered since the construction was undertaken and until the restitutio in integrum 607See e.g. paras. 3.6, 3.8, 3.24, 3.37, 3.51, 3.60, 3.81, 3.89 above and Kondolf
3.1.4, 4.5, 4.9, 4.10 and 66 (NM, Vol. II, Annex 1).
608
is achieved. Therefore, in conformity with the well -established rule embodied in See paras. 3.77-3.81 above. See also Kondolf Report, Sections 2.5, 4.11 -4.1 (NM, Vol. II,
Annex 1) and 6 and EPN, “Dredging Project Technical Evaluation Analysis 2011: Improving
Article 36 of the Articles on the responsibility of States for internationally Navigation on the San Juan River,” 23 January 2012, p. 2
Nicaragua (NCM) in the Dispute concerning Certain Activities Carried Out by Nicaragua in the
Border Area (Costa Rica v. Nicaragua) ); INETER, “Summary of Measurements of Liquid and
wrongful acts, Costa Rica “is under an obligation to compensate for the damage Suspended Solids Content During the Years 2006, 2011, 2012 (Annex 16 to the Counter Memorial
of Nicaragua (NCM) in the Dispute concerning Certain Activities Carried Out by Nicaragua in the
Border Area (Costa Rica v. Nicaragua)); see also Diario Extra, Costa Rica “ Nicaragua requests
caused” by its internationally wrongful acts, “insofar as such damage is not made
studies on the Soberania Road,” 13 December 2011 (quoting Nicaraguan Vice Minister of Foreign
good by restitution.” Affairs, Valdrak Jaentschke, who has explained that Costa Rica’s road construction pr
caused “slopes to deteriorate which in turn leads to sedimentation in the San Juan River, affecting
[Nicaragua’s] dredging works, navigation, and altering the ecological balance of the species that
live in the River.”) (NM, Vol. II, Annex 23)
609See paras. 3.81, 3.85, 3.88 and 3.90 -3.91 above. See also Kondolf Report, Sections 3.1.4 and
6.33 In the present case, Costa Rica must compensate Nicaragua for the 4.5. (NM, Vol.II, Annex 1)
610
I.C.J., Judgment, 24 May 1980, United States Diplomatic and Consular Staff in Tehran , I.C.J.
damages already suffered and which cannot be rubbed out by any kind of Reports 1980, pp. 44 -45, para. 6 of the d
Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) , Merits, I.C.J. Reports 1974, pp.
204-206, paras. 76-77 ; I.C.J., Judgment, 27 June 1986, Military and Paramilitary Activities in and
restitutio, such as: against Nicaragua (Nicaragua v. United States of America)
para. 284 ; I.C.J., Judgment, 19 December 2005,
(Democratic Republic of the Congo v. Uganda)
605 Judgment, 30 November 2010,
See paras 3.96-3.98 above and see the Kondolf Report Section 5.6 (NM, Vol. II, Annex 1). Republic of the Congo), para. 164. 5 . The Prejudice to Nicaragua’s territory affects the
Navigational Rights granted by the 1858 Treaty to Costa
Rica
611
6.35 As noted above, in its Judgment of 2009, the Court noted that “a
simple reading of Article VI” of the Treaty “shows that”:
“the right of free navigation, albeit ‘perpetual’, is
granted [to Costa Rica] only on condition that it
does not prejudice the key prerogatives of territorial
sovereignty.” 612
6.36 By deliberately causing significant harm to the San Juan River –
which is entirely under Nicaraguan sovereignty –, Costa Rica has seriously
prejudiced “the key prerogatives of [Nicaraguan] territorial sovereignty.” It is,
therefore no more entitled to claim its “perpetual” but conditional right of free
navigation.
6.37 Moreover, the suspension of the operation of the 1858 Treaty – if
not its termination – is but the legal consequence of its breach in application of the
rules provided for in this respect by the Vienna Convention on the Law of
Treaties:
Article 60 (Termination or suspension of the
operation of a treaty as a consequence of its breach)
611
612ee para. 4.9 above. 613
I.C.J., Judgement, 13 July 2009Dispute regarding Navigational and Related Rights (Costa
Rica v. Nicaragua), I.C.J. Reports 2009, p. 237, para. 48. Reports 1997, p. 38, para. 46.
244 5 . The Prejudice to Nicaragua’s territory affects the
Navigational Rights granted by the 1858 Treaty to Costa
Rica
611
6.35 As noted above, in its Judgment of 2009, the Court noted that “a
simple reading of Article VI” of the Treaty “shows that”:
“the right of free navigation, albeit ‘perpetual’, is
granted [to Costa Rica] only on condition that it
does not prejudice the key prerogatives of territorial
sovereignty.” 612
6.38
6.36 By deliberately causing significant harm to the San Juan River –
which is entirely under Nicaraguan sovereignty –, Costa Rica has seriously
prejudiced “the key prerogatives of [Nicaraguan] territorial sovereignty.” It is,
therefore no more entitled to claim its “perpetual” but conditional right of free
navigation.
6.37 Moreover, the suspension of the operation of the 1858 Treaty – if
not its termination – is but the legal consequence of its breach in application of the
rules provided for in this respect by the Vienna Convention on the Law of
Treaties:
Article 60 (Termination or suspension of the
operation of a treaty as a consequence of its breach)
611
612See para. 4.9 above. 613
I.C.J., Judgement, 13 July 200Dispute regarding Navigational and Related Rights (Costa I.C.J., Judgment, 25 September 1997, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), I.C.J.
Rica v. Nicaragua), I.C.J. Reports 2009, p. 237, para. 48. Reports 1997, p. 38, para. 46. 6.39 In the present case, there can be no doubt that Costa Rica violated application of this provision should be implemented in application of Article 72 –
several provisions “essential to the accomplishment of the object or purpose of the quoted above – and Article 44 of the Vienna Convention (on “Separability of
treaty” as explained in details in Chapter 4 of the present Memorial. Therefore, in treaty provisions”) according to which:
application of Article 60 (1) of the Vienna Convention, Nicaragua is entitled “to
invoke the breach as a ground for terminating the treaty or suspending its
operation in whole or in part”.
6.40 Consequently, Article 72 of the Vienna Convention on the Law of
Treaties must apply:
“1. Unless the treaty otherwise provides or the
parties otherwise agree, the suspension of the
operation of a treaty under its provisions or in
accordance with the present Convention:
(a) releases the parties between which the operation
of the treaty is suspended from the obligation to
perform the treaty in their mutual relations during
the period of the suspension;
(b) does not otherwise affect the legal relations
between the parties established by the treaty.
2. During the period of the suspension the parties
provisions regarding the boundary between the Parties as fixed by the 1858 Treaty
shall refrain from acts tending to obstruct the
resumption of the operation of the treaty.”
would continue to apply. As the Court explained in Libya/Chad:
6.41 It must also be specified that since the breaches of the Treaty by
Costa Rica consist in adversely affecting the navigability of the San Juan River
and the navigation on the River provided for in article VI of the Treaty, only the
246 6.39 In the present case, there can be no doubt that Costa Rica violated application of this provision should be implemented in application of Article 72 –
several provisions “essential to the accomplishment of the object or purpose of the quoted above – and Article 44 of the Vienna Convention (on “Separability of
treaty” as explained in details in Chapter 4 of the present Memorial. Therefore, in treaty provisions”) according to which:
application of Article 60 (1) of the Vienna Convention, Nicaragua is entitled “to
invoke the breach as a ground for terminating the treaty or suspending its
operation in whole or in part”.
6.40 Consequently, Article 72 of the Vienna Convention on the Law of
Treaties must apply:
“1. Unless the treaty otherwise provides or the
parties otherwise agree, the suspension of the
operation of a treaty under its provisions or in
accordance with the present Convention:
(a) releases the parties between which the operation
of the treaty is suspended from the obligation to
perform the treaty in their mutual relations during
the period of the suspension;
(b) does not otherwise affect the legal relations
between the parties established by the treaty.
6.42
2. During the period of the suspension the parties
provisions regarding the boundary between the Parties as fixed by the 1858 Treaty
shall refrain from acts tending to obstruct the
resumption of the operation of the treaty.”
would continue to apply. As the Court explained in Libya/Chad:
6.41 It must also be specified that since the breaches of the Treaty by
Costa Rica consist in adversely affecting the navigability of the San Juan River
and the navigation on the River provided for in article VI of the Treaty, only the 34; Ae gean Sea Continental Shelf: I.C.J. Reports aggression on the part of the neighbour co untry of Nicaragua .”
1978, p. 36).
attitude is attested, by example by the declaration made by the second Vice
73. A boundary established by treaty thus achieves a
permanence which the treaty itself does not President of Costa Rica, Alfio Piva, who indicated that since the new road being
necessarily enjoy. The treaty can cease to be in
force without in any614y affecting the continuance constructed made the River unnecessary for Costa Ricans, he ca lled upon them to
of the boundary.”
“eat the San Juan [River].”
6.43 Moreover, the various violations by Costa Rica of its obligations,
not only under the 1858 Treaty, but also under many rules of general international
consequences of the present Chapter.
law and of various other treaties – as exposed in Chapters 4 and 5 of the present
Memorial – allow Nicaragua to take counter-measures against the Defendant. The
law applicable to counter-measures is summarized in Articles 49 to 53 of the ILC
615
Articles on Responsibility of States for Internationally Wrongful Acts. In the
present case, the suspension of Costa Rica’s right of navigation on the San Juan
River is a “commensurate with the injury suffered” by Nicaragua 616, it fully
617
“permit[s] the resumption of performance of the obligations in question” and it
should induce Costa Rica “to comply with its obligations” to make good the harm
suffered by Nicaragua. 618
6.44 Such an action would be all the more warranted that Costa Rica
acted deliberately in order to harm Nicaragua as a reprisal for an alleged “act of
614I.C.J., Judgment, 3 February 1994, Territorial Dispute (Libyan Arab Jamahiriya/Chad) , p. 37, 619
620
615as. 72-73.
616The Articles are annexed to Resolution 56/83 of the General Assembly (12 December 2001). January 2012 ( Annex 102 to the Counter Memorial of Nicaragua (NCM) in the
617Ibid., Article 51. concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v.
618Ibid., Article 49 (3). Nicaragua)).
Ibid., Article 49 (1)
248 34; Ae gean Sea Continental Shelf: I.C.J. Reports aggression on the part of the neighbour co untry of Nicaragua .”
1978, p. 36).
attitude is attested, by example by the declaration made by the second Vice
73. A boundary established by treaty thus achieves a
permanence which the treaty itself does not President of Costa Rica, Alfio Piva, who indicated that since the new road being
necessarily enjoy. The treaty can cease to be in
force without in any614y affecting the continuance constructed made the River unnecessary for Costa Ricans, he ca lled upon them to
of the boundary.”
“eat the San Juan [River].”
6.43 Moreover, the various violations by Costa Rica of its obligations,
6.45
not only under the 1858 Treaty, but also under many rules of general international
consequences of the present Chapter.
law and of various other treaties – as exposed in Chapters 4 and 5 of the present
Memorial – allow Nicaragua to take counter-measures against the Defendant. The
law applicable to counter-measures is summarized in Articles 49 to 53 of the ILC
615
Articles on Responsibility of States for Internationally Wrongful Acts. In the
present case, the suspension of Costa Rica’s right of navigation on the San Juan
River is a “commensurate with the injury suffered” by Nicaragua 616, it fully
617
“permit[s] the resumption of performance of the obligations in question” and it
should induce Costa Rica “to comply with its obligations” to make good the harm
suffered by Nicaragua. 618
6.44 Such an action would be all the more warranted that Costa Rica
acted deliberately in order to harm Nicaragua as a reprisal for an alleged “act of
614I.C.J., Judgment, 3 February 1994, Territorial Dispute (Libyan Arab Jamahiriya/Chad) , p. 37, 619Decree No. 36440-MP, year CXXXIII, Monday, 7 March 2011(NM, Vol. II, Annex 11).
620El Nuevo Diario , Nicaragua “Costa Rican Vice -President suggests eating the San Juan ”, 23
615as. 72-73.
616The Articles are annexed to Resolution 56/83 of the General Assembly (12 December 2001). January 2012 ( Annex 102 to the Counter Memorial of Nicaragua (NCM) in the
617Ibid., Article 51. concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v.
618Ibid., Article 49 (3). Nicaragua)).
Ibid., Article 49 (1) 2.
Costa Rica must:
250 SUBMISSIONS
1. For the reasons given herein, the Republic of Nicaragua requests the Court
to adjudge and declare that, by its conduct, Costa Rica has breached:
(i) Its obligation not to violate t he integrity of Nicaragua’s territory as
delimited by the 1858 Treaty of Limits, the Cleveland Award of 1888
and the five Awards of the Umpire EP Alexander of 30 September 1897,
20 December 1897, 22 March 1898, 26 July 1899 and 10 March 1900.
(ii) Its obligation not to damage Nicaraguan territory;
(iii) Its obligations under general international law and the relevant
environmental conventions, including the Ramsar Convention on
Wetlands, the Agreement over the Border Protected Areas between
Nicaragua and Costa Rica (International System of Protected Areas for
Peace [SI-A-PAZ] Agreement), the Convention on Biological Diversity
and the Convention for the Conservation of the Biodiversity and
Protection of the Main Wild Life Sites in Central America;
2. furthermore, Nicaragua requests the Court to adjudge and declare that
Costa Rica must:
(i) Cease all the constructions underway that affects or may affect the
rights of Nicaragua.
(ii) Restore the situation to the status quo ante.
251 (iii) Compensate for all damages caused including the costs added to damage being caused to the San Jua n de Nicaragua River and the surrounding
the dredging of the San Juan de Nicaragua River, with the amount of the environment.
compensation to be determined in a subsequent phase of the case. If Costa Rica does not of itself proceed to take these measures and the Court
considers it cannot order that it be done without the full procedure contemplated
(iv) Not to continue or undertake any future development in the area in Articles 73 et seq. of the Rules of Court, the Republic of Nicaragua reserves its
without an appropriate transboundary Environmental Impact Assessment right to request provisional measures on the basis of Article 41 of the Statute and
and that this assessment must be presented in a timely fashion to the pertinent procedures of Articles 73 and ff. of the Rules of Court and to amend
Nicaragua for its analysis and reaction. and modify these submissions in the light of the further pleadings in this case.
3. The Republic of Nicaragua further requests the Court to adjudge and
declare that:
(i) Nicaragua is entitled, in accordance with the 1858 Treaty as
interpreted by the subseque nt arbitral awards, to execute works to
improve navigation on the San Juan River as it deems suitable, and that
these works include the dredging of the San Juan de Nicaragua River to
remove sedimentation and other barriers to navigation; and,
(ii) In so doing, Nicaragua is entitled to re -establish the conditions of
navigation that existed at the time the 1858 Treaty was concluded.
(iii) That the violations of the 1858 Treaty and under many rules of
International Law by Costa Rica, allow Nicaragua to take appropriate
counter measures including the suspension of Costa Rica's right of
navigation in the San Juan de Nicaragua River.
4. Finally, Nicaragua requests the Court to order Costa Rica to immediately
take the emergency measures recommended by its own experts and further
detailed in the Kondolf Report, in order to alleviate or mitigate the continuing
252 (iii) Compensate for all damages caused including the costs added to damage being caused to the San Jua n de Nicaragua River and the surrounding
the dredging of the San Juan de Nicaragua River, with the amount of the environment.
compensation to be determined in a subsequent phase of the case. If Costa Rica does not of itself proceed to take these measures and the Court
considers it cannot order that it be done without the full procedure contemplated
(iv) Not to continue or undertake any future development in the area in Articles 73 et seq. of the Rules of Court, the Republic of Nicaragua reserves its
without an appropriate transboundary Environmental Impact Assessment right to request provisional measures on the basis of Article 41 of the Statute and
and that this assessment must be presented in a timely fashion to the pertinent procedures of Articles 73 and ff. of the Rules of Court and to amend
Nicaragua for its analysis and reaction. and modify these submissions in the light of the further pleadings in this case.
3. The Republic of Nicaragua further requests the Court to adjudge and
declare that:
(i) Nicaragua is entitled, in accordance with the 1858 Treaty as
interpreted by the subseque nt arbitral awards, to execute works to
improve navigation on the San Juan River as it deems suitable, and that
these works include the dredging of the San Juan de Nicaragua River to
remove sedimentation and other barriers to navigation; and,
(ii) In so doing, Nicaragua is entitled to re -establish the conditions of
navigation that existed at the time the 1858 Treaty was concluded.
(iii) That the violations of the 1858 Treaty and under many rules of
International Law by Costa Rica, allow Nicaragua to take appropriate
counter measures including the suspension of Costa Rica's right of
navigation in the San Juan de Nicaragua River.
4. Finally, Nicaragua requests the Court to order Costa Rica to immediately
take the emergency measures recommended by its own experts and further
detailed in the Kondolf Report, in order to alleviate or mitigate the continuing254 CERTIFICATION
I have the honour to certify that this Memorial and the documents annexed in
Volume II are true copies and conform to the original documents and that the
translations into English made by the Republic of Nicaragua are accurate
translations.
The Hague, 19 December 2012
Carlos J. Argüello-Gómez
Agent of the Republic of Nicaragua
255256 LIST OF ANNEXES
VOLUME II
Annex DOCUMENT Page
No.
1 G. Mathias Kondolf, Danny Hagans, Bill Weaver and Eileen 1
Weppner: “Environmental Impacts of Juan Rafael Mora Porras
Route 1856, Costa Rica, on theRío San Juan, Nicaragua,”
December 2012.
2 Costa Rican Ministry of Environment, Energy and 161
Telecommunications, National Conservation Area System,
Ministry of Public Works and Transportation, National Road
Council, and National Risk Prevention and Emergency
Response Commission, “Environmental Management Plan:
Juan Rafael Mora Porras Road,”April 2012.
3 National Laboratory of Materials and Structural Models of the3
University of Costa Rica, “Report INF-PITRA-014-12: Report
from Inspection of Route 1856 - Juan Rafael Mora Porras
Border Road,” May 2012.
4 Federated Association of Engineers and Architects of Costa 257
Rica, “Report on Inspection of the on the Border Road, Northern
Area Parallel to the San Juan River CFIAReport,” 8 June 2012.
TREATIES, AWARDS, AGREEMENTS, LAW, DECREES
AND JUDGEMENT
5 Treaty of Limits between Nicaragua and Costa Rica, 15 April287
1858.
6 (1)Award of theArbitrator, the President of the United Stat297
upon the validity of the Treaty of Limits of 1858 between
Nicaragua and Costa Rica (ClevelandAward), reprinted United
Nations, Report of International Arbitral Awards, Vol. XXVIII
(2006), pp.207-211 Washington, D.C., 22 March 1888.
25ii7i (2) First Award of the Umpire EPAlexander in the boundary
question between Costa Rica and Nicaragua, reprinted United
Nations, Reports of International Arbitral Awards, Vol. XXVIII
(2007) pp.215-221, San Juan del Norte, 30 September 1897.
(3) SecondAward of the Umpire EPAlexander in the boundary
question between Costa Rica and Nicaragua, reprinted United
Nations, Reports of International Arbitral Awards, Vol. XXVIII
(2007) pp.223-225, San Juan del Norte, 20 December 1897.
(4) Third Award of the Umpire EPAlexander in the boundary
question between Costa Rica and Nicaragua, reprinted United
Nations, Reports of International Arbitral Awards,Vol. XXVIII
(2007) pp.227-230, San Juan del Norte, 22 March 1898.
(5) FourthAward of the Umpire EPAlexander in the boundary
question between Costa Rica and Nicaragua, reprinted United
Nations, Reports of International Arbitral Awards,Vol. XXVIII
(2007) pp.231-235, Greytown, 26 July 1899.
7 Agreement on Border ProtectedAreas, between Costa Rica and 329
Nicaragua, “SI-A-PAZ” agreement, signed at Puntarenas, Costa
Rica, 15 December 1990.
8 Nicaraguan Executive Decree 527, 17April 1990, published in 333
Official Gazette Nº 78 of 23April 1990
9 The Borderline Corridor Conformed by the Territories 339
Encompassed along the Border with Nicaragua, from Punta
Castilla in the Caribbean Sea up to Salinas Bay in the Pacific
Ocean is Hereby Declared as a National Wildlife Refuge , Nº
22962 – MIRENEM, 15 February 1994.
10 Nicaraguan Decree No. 66-99, “Update and Definition of 343
categories and limits of ProtectedAreas located in Nicaragua’s
southeast territory,” 31 May 1999.
11 Official Daily Gazette No. 46, Decree No. 36440-MP, Year 355
CXXXIII. La Uruca, San Jose, Costa Rica, 07 March 2011.
iv8 (2) First Award of the Umpire EPAlexander in the boundary
question between Costa Rica and Nicaragua, reprinted United
Nations, Reports of International Arbitral Awards, Vol. XXVIII
(2007) pp.215-221, San Juan del Norte, 30 September 1897.
(3) SecondAward of the Umpire EPAlexander in the boundary
question between Costa Rica and Nicaragua, reprinted United
Nations, Reports of International Arbitral Awards, Vol. XXVIII
(2007) pp.223-225, San Juan del Norte, 20 December 1897.
(4) Third Award of the Umpire EPAlexander in the boundary
question between Costa Rica and Nicaragua, reprinted United
Nations, Reports of International Arbitral Awards,Vol. XXVIII
(2007) pp.227-230, San Juan del Norte, 22 March 1898.
(5) FourthAward of the Umpire EPAlexander in the boundary
question between Costa Rica and Nicaragua, reprinted United
Nations, Reports of International Arbitral Awards,Vol. XXVIII
(2007) pp.231-235, Greytown, 26 July 1899.
7 Agreement on Border ProtectedAreas, between Costa Rica and 329
Nicaragua, “SI-A-PAZ” agreement, signed at Puntarenas, Costa
Rica, 15 December 1990.
8 Nicaraguan Executive Decree 527, 17April 1990, published in 333
Official Gazette Nº 78 of 23April 1990
9 The Borderline Corridor Conformed by the Territories 339
Encompassed along the Border with Nicaragua, from Punta
Castilla in the Caribbean Sea up to Salinas Bay in the Pacific
Ocean is Hereby Declared as a National Wildlife Refuge , Nº
22962 – MIRENEM, 15 February 1994.
10 Nicaraguan Decree No. 66-99, “Update and Definition of 343
categories and limits of ProtectedAreas located in Nicaragua’s
southeast territory,” 31 May 1999.
11 Official Daily Gazette No. 46, Decree No. 36440-MP, Year 355
CXXXIII. La Uruca, San Jose, Costa Rica, 07 March 2011.
iv 20 Note from the Minister of Environment and Natural Resources 417
of Nicaragua (MARENA) to the Secretary General, RAMSAR
Convention, 28 November 2011.
21 Note from the Minister of Environment and Natural Resources 421
of Nicaragua (MARENA) to the CentralAmerican Commission
on Environment and Development (CCAD), 10 December 2011.
MEDIAREPORTS
22 University Seminar, Costa Rica, “Environmental damage 425
feared due to construction of highway parallel to Rio San Juan”,
1 November 2011.
23 Diario Extra, Costa Rica, "Nicaragua requests studies on the431
Soberania road", 13 December 2011.
24 El País, Costa Rica, “Chinchilla Defends Highway Criticized 435
by Nicaragua, Rejects Dialogue”, 14 December 2011 (Source:
EFE / 13 December 2011).
25 El Nuevo Diario, Nicaragua “Outrage everywhere over San 439
Juan River parallel highway. No studies Done for Costa Rican
Highway”, 15 December 2011.
26 La Prensa, Nicaragua, "Surroundings Damage Could not be 445
hidden", 14 January 2012.
27 La Prensa, Nicaragua, "Costa Rica’s difficulties due to road449
construction", 16 January 2012.
28 El Nuevo Diario, Nicaragua, "Central American Parliament 455
supports CCJ decision on environmental damage by Costa
Rica", 27 February 2012.
29 La Prensa, Nicaragua, "Central American Parliament urges 459
Costa Rica to respect environmental security in the San Juan
River", 27 February 2012.
vi030 La Prensa, Nicaragua, "San Jose should respect the river", 463
28 February 2012.
31 La Nación, Costa Rica, “Conavi Built a Dirt Road along the 467
Border without a single Design Plan”, 23 May 2012.
32 El País, Costa Rica " Faced with criticism, Conavi confirms 471
to have done work on 332 kilometers of roads around Route
1856", 26 May 2012.
33 La Nación, Costa Rica, "The damage had already taken place", 475
24 May 2012.
34 CONAVI Press Release, 25 May 2012. 479
35 La Nación, Costa Rica, "Serious Errors Expose Trail to Risk of83
Collapse during the Rainy Season”, 28 May 2012.
36 Diario Extra, Costa Rica “Government acknowledges mistakes 487
in the construction of the trail”, 30 May 2012.
37 El Pais, Costa Rica, "Environmental Court Confirms Excessive 491
Felling in the Construction of Trail 1856", 15 July 2012 .
38 El País, Costa Rica “Road 1856: First Study by the TAAPoints 497
Out Impacts to the Protection Area of the San Juan River”,
26 July 2012.
39 La Nación, Costa Rica, “Border Roadway presents more 503
Collapsing”, 13August 2012.
40 La Nación, Costa Rica "The Ministry for Public Works and 507
Transport will sign contracts for conclusion of project", 29
August 2012.
2vii
Memorial of Nicaragua