INTERNATIONAL COURT OF JUSTICE
DISPUTE CONCERNING
CERTAIN ACTIVITIES CARRIED OUT BNICARAGUA
IN THEBORDER A REA
(COSTA RICA . NICARAGUA )
COUNTER- MEMORIAL
OF THEEPUBLIC ONICARAGUA
VOLUME I
06 August 2012
1 INTERNATIONAL COURT OF JUSTICE
DISPUTE CONCERNING
CERTAIN ACTIVITIES CARRIED OUT NYICARAGUA
IN THEBORDER AREA
(COSTAR ICA . ICARAGUA )
C OUNTER- EMORIAL
OF THREPUBLIC ONICARAGUA
VOLUME I
06 August 2012 INTERNATIONAL COURT OF JUSTICE
DISPUTE CONCERNING
CERTAIN ACTIVITIES CARRIED OUT NYICARAGUA
IN THEBORDER AREA
(COSTAR ICA . ICARAGUA )
C OUNTER- EMORIAL
OF THREPUBLIC ONICARAGUA
VOLUME I
06 August 2012 TABLE OF CONTENTS
CHAPTER 1: INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 . . . . . . . . .
A. THE SCOPE OF THE DISPUTE ................................... 4
1. Dredging Program ............................................. 4
2. Issues of Sovereignty ........................................... 10
3. Counter Claims ............................................... 12
(a) The Road ................................................. 14
(b) Nicaragua’s right of Navigation on the Colorado River .......... 16
(c) The Non-existence of the Bay of San Juan del Norte ............ 16
(d) Violation by Costa Rica of the Court’s Order on Provisional
Measures ................................................. 17
B. STRUCTURE OF THE COUNTER MEMORIAL .................... 18
CHAPTER 2: BACKGROUND OF THE DISPUTE . . . . . . . . . . . . . . . . . . . . . . . 21
A. THE RELEVANT GEOGRAPHY .................................. 22
1. The San Juan de Nicaragua River ................................ 22
2. The adjacent biosphere reserves and internationally-protected
wetlands ..................................................... 26
3. Harbour Head and the Bay of San Juan del Norte .................. 27
4. The “Caño” ................................................... 27
B. HISTORICAL BACKGROUND: THE ORIGINS OF THE BORDER
BETWEEN NICARAGUA AND COSTA RICA ...................... 29
1. The Jérez-Cañas Treaty of Limits of 15 April 1858 .................. 30
2. The Award of President Cleveland of 1888 ........................ 32
3. The Alexander Awards 1897-1900 ............................... 33
4. The Dispute Concerning Navigation and Related Rights (Costa
Rica v. Nicaragua) ............................................. 35
C. NICARAGUA’S DREDGING PROGRAM .......................... 37
D. ACTIVITIES IN THE CAÑO ..................................... 44
iii CHAPTER 3: APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . .51 . . . . . . . . .
A. THE 1858 TREATY AND ITS SUCCESSIVE ARBITRAL AND
JUDICIAL INTERPRETATIONS .................................. 51
1. The 1858 Treaty Establishes the Sovereignty of Nicaragua over the
River San Juan de Nicaragua .................................... 52
(a) The 1858 Treaty of Limits and its arbitral interpretation ......52.
(b) The recognition of Nicaragua’s sovereignty over the San Juan de
NicaraguRaiver ........................................... 53
2. The Legal Regime of the San Juan de Nicaragua established by
the 1858 Treaty ............................................... 56
B. THE LIMITED ROLE OF PRINCIPLES AND RULES OF
GENERAL INTERNATIONAL LAW ................................. 60
1. The Subsidiary Role of General Principles ........................ 61
(a) The principle of the non-harmful use of the territory ..........62
(b) The obligation to notify and consult .......................... 65
(c) The absence of veto right in general international law .........68
(d) The obligation to conduct a proper environmental impact
assessment ............................................... 69
2. The Relationship between the Treaty of Limits and the Other
Treaties Invoked by Costa Rica .................................. 71
CHAPTER4: NAVIGATION ON THE SAN JUAN DE NICARAGUA
RIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75 . . . . . . . . . . . . . . . . . . .
A. NICARAGUA’S RIGHT TO DREDGE THE RIVER TO IMPROVE
ITS NAVIGABILITY ............................................. 76
1. Factual and Historical Background .............................. 77
2. The Origins of Nicaragua’s Dredging Project ...................... 92
3. Nicaragua’s Right To Dredge .................................... 96
B. THE IMPACTS ON NAVIGABILITY OF THE SAN JUAN DE
NICARAGUA RIVER CAUSED BY COSTA RICA’S
CONSTRUCTION OF A ROAD ON THE RIGHT BANK ........... 103
C. NICARAGUA’S RIGHT TO NAVIGATE ON THE COLORADO
BRANCH OF THE SAN JUAN DE NICARAGUA RIVER ........... 119
ivCHAPTER 5: NICARAGUA HAS COMPLIED WITH ITS OBLIGATIONS
UNDER INTERNATIONAL ENVIRONMENTAL LAW . . . . . . . . 125
A) INTRODUCTION ............................................. 126
B) NICARAGUA CONDUCTED A THOROUGH ENVIRONMENTAL
IMPACT ASSESSMENT ......................................... 127
1. Overview of Environmental Regulations in Nicaragua ............. 127
2. MARENA’s Assessment of the Proposed Dredging Project Prior
to Authorization ............................................. 134
(a) The Project .............................................. 135
(b) The Request for Environmental Authorization ................ 136
(c) The Formation of the Intra-Governmental Team .............. 139
(d) The Terms of Reference ................................... 140
(e) The First Site Inspection ................................... 141
(f) The Public Consultation and Comment Period ............... 145
(g) The Third Site Inspection .................................. 148
(h) The EIS ................................................. 149
(i) The Fourth Site Inspection ................................. 158
(j) Continued Environmental Impact Assessment ................ 161
(k) The Fifth Site Inspection ................................... 166
(l) The Technical Opinion .................................... 167
(m) MARENA’s Issuance of the Environmental Permit ............. 170
3. MARENA’s Review and Authorization of Additions to the Dredging
Project ..................................................... 176
(a) The Proposed Project Additions ............................ 180
(b) MARENA’s EIA of the Proposed Project Additions ............ 183
(c) No Requirement for a New EIS ............................. 190
C) NICARAGUA BREACHED NO OBLIGATIONS OF
NOTIFICATION OR CONSULTATION. . . . . . . . . . . . . . . . . . . . . . . . . . .194
D)NICARAGUA IS IN FULL COMPLIANCE WITH WHAT
COSTA RICA CALLS THE “ENVIRONMENTAL
PROTECTION REGIME” ....................................... 205
v 1. Nicaragua Is in Full Compliance with the Ramsar Convention ...... 207
2. Nicaragua Is in Full Compliance with the SI-A-PAZ and Central
American Biodiversity Agreements ............................. 212
3. Nicaragua’s Activities Are Fully Consistent with the Treaty of Limits
as Interpreted by the Cleveland Award .......................... 216
E) NICARAGUA’S ACTIVITIES HAVE CAUSED NO DAMAGE TO
COSTA RICA AND POSE NO RISK OF FUTURE HARM ........... 221
1. The Dredging Project ......................................... 222
(a) Reduced Scope of the Dredging Project ...................... 222
(b) Progress To Date ......................................... 233
(c) Activities Conducted in late 2010 ........................... 235
2. No Damage Caused to Costa Rica .............................. 237
(a) Harm Allegedly Caused by Nicaragua’s Caño-Clearing
Activities ................................................ 243
(i) The Felling of Trees .................................... 244
(ii) The Removal of Undergrowth ........................... 248
(iii)The Excavation of Soil ................................. 249
(iv)The Depositing of Soil and Debris in the Wetland ......... 251
(b) Harm Allegedly Caused by Nicaragua’s Dredging Activities ..... 255
(i) No Dredged Sediments Have Been Deposited on the Costa
RicaBank ........................................... 255
(ii) Dredging Has Not Caused Erosion of the Costa
Rican Bank........................................... 264
3. The Absence of Any Risk of Harm to Costa Rica .................. 269
(a) No Risk of Harm to Costa Rica’s Environment ................ 280
(b) No Risk of Harm to the Navigability of the Colorado River ..... 287
CHAPTER 6: TERRITORIAL SOVEREIGNTY . . . . . . . . . . . . . . . . . . . . . . . . . 293
A. NICARAGUA’S ALLEGED ‘FAILURE’ TO RAISE A DISPUTE ....... 294
B. THE PLAIN LANGUAGE OF THE ALEXANDER AWARD ......... 301
1. Location of the Border: the First Channel Met .................... 301
2. Costa Rica’s Claims Were Already Rejected by General Alexander ... 307
vi C. THE CAÑO HAS LONG EXISTED IN ITS CURRENT LOCATION .. 314
1. The Relevance of Maps and Satellite Photographs ................. 315
2. The Existence of the Caño ..................................... 318
3. Costa Rica’s Experts Do Not Assist Its Case ...................... 344
D. NICARAGUA’S HISTORIC ACTIVITIES IN THE CAÑO AND
THE AREA IN DISPUTE ........................................ 351
1. Nicaragua’s Sovereign Activities ................................ 353
2. Costa Rica’s Acquiescence ..................................... 358
3. Costa Rica’s Lack of Effectivités .................................364
E. THE PRESENT DAY NON-EXISTENCE OF THE BAY OF SAN
JUAN ......................................................... 367
1. Physical disappearance of the Bay of San Juan .................... 368
2. The Cleveland Award ......................................... 374
3. The Alexander Awards ........................................ 379
4. The Practice of the Parties ..................................... 381
5. Loss of Territory in International Law ........................... 382
CHAPTER 7: OTHER VIOLATIONS CLAIMED BY COSTA RICA . . . . . . . 385
A. NICARAGUA COMPLIED WITH THE INTERNATIONAL COURT
OF JUSTICE’S ORDER FOR PROVISIONAL MEASURES
OF 8 MARCH 2011 ............................................. 385
1. Nicaragua Has Refrained from “sending to or maintaining in”
Harbour Head any State Personnel .............................. 387
2. Acts of the Guardabarranco Environmental Movement cannot be
attributed to Nicaragua ........................................ 389
(a) The Court’s Order does not prohibit private individuals to
travel to the disputed territory ..............................390
(b) Members of the Guardabarranco Environmental Movement
are not de facto personnel of Nicaragua ...................... 392
3. In any event, no violation of the Court’s Order has been committed .398
(a) Costa Rica has not been prevented from exercising its rights
under the second provisional measure ....................... 398
vii (b) The dispute has not been aggravated, extended or made
more difficult to resolve ................................... 400
B. THE ALLEGED VIOLATION OF THE INTERNATIONAL COURT
OF JUSTICE’S JUDGMENT OF 13 JULY 2009 ..................... 402
CHAPTER 8: REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407 . . . . . . . . . .
CHAPTER 9: COUNTER-CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415 . . . . .
A. THE COURT HAS JURISDICTION TO DECIDE UPON
NICARAGUA’S COUNTER-CLAIMS ............................. 416
1. The Consequences of the Construction of a Road along the San
Juan de Nicaragua River ....................................... 417
(a) General Considerations ................................... 417
(b) Lack of Blueprints and Environmental Impact Assessment ..... 420
(c) Lack of Consultation ...................................... 424
(d) Damages Caused to Nicaraguan Territory and the
Environment ............................................ 428
2. The Consequences of the Current Non-Existence of the Bay
of San Juan del Norte ......................................... 435
3. The Right of Nicaraguan Vessels to Reach the Ocean via the
Colorado River .............................................. 438
4. Costa Rica Violation of the Court’s Order on Provisional Measures ..439
B. NICARAGUA’S COUNTER-CLAIMS ARE ADMISSIBLE ........... 446
1. Nicaragua’s Counter-Claims are “Distinguishable from a Defence” .. 446
2. Nicaragua’s Counter-Claims are “Directly Connected with the
Subject-Matter of Claims” of Costa Rica ......................... 448
SUBMISSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455 . . . . . . . . . . . . . . . .
CERTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459 . . . . . . . . . . . . . .
APPENDIX 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .461. . . . . . . . . . . . . . . . .
APPENDIX 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .525. . . . . . . . . . . . . . . . .
LIST OF ANNEXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 555 . . . . . . . . . . . . . .
viii INDEX OF FIGURES
Figure 1.1 Map of the Republic of Nicaragua ................................ 7
Figure 2.1 Excerpt of Satellite Image issued by LAND INFO .................. 23
Figure 2.2 Photographs of stuck boats in the San Juan de Nicaragua River ...... 38
Figure2.3 Photographs showing hand-held equipment for the clearing of
the caño ..................................................... 47
Figure2.4 Photograph of trees requiring removal from the area adjacent
to the caño ................................................... 48
Figure 4.1 Comparison of 2010 Satellite Image and 1851/1858 maps ........... 84
Figure 4.2 Excerpt of Satellite image issued by LAND INFO ................. 92
Figure 4.3 Location of Juan Rafael Mora Porras Highway .................... 105
Figure 4.4 Photographs showing large swaths of deforested territory .......... 107
Figure4.5 Photographs showing drastic alteration of natural surface runoff
patterns and sediment run-off into the San Juan de Nicaragua
River ....................................................... 109
Figur4e.6 Photograph showing debris left next to the San Juan
de Nicaragua River ........................................... 143
Figure 5.1 Map of Deposit Sites Proposed in September 2006 EIS ............. 154
Figure5.2 Map of All Deposit Sites Analyzed During October 2006 Site
Inspection ................................................... 160
Figure 5.3 Map Illustrating 8 Priority Areas ............................... 225
Figure 5.4 Photographs of Erosion Included at pp. 77 & 82 of EIS ............. 267
Figure5.5 Photographs of Erosion Presented to Central American Court
of Justice .................................................... 268
Figure 6.1 2010 Satellite Image ........................................... 306
Figure6.2 Sketch of the Harbour of Greytown-1897, First Alexander Award
of 30 September 1897 ......................................... 308
Figure6.3 Map of San Juan del Norte surveyed by Ensign W.J. Maxwell
in 1888 ..................................................... 309
Figure 6.4 1949 Costa Rica Map ......................................... 319
ix Figure 6.5 1971 Costa Rica Map ......................................... 321
Figure 6.6 1931 U.S. Army Corps of Engineers Map ........................ 325
Figure 6.7 1961 Aerial Image ............................................ 328
Figure 6.8 January 2011 Satellite Image ..................................330
Figure 6.9 1961 Aerial Image (2) .........................................331
Figure 6.101970 U.S. CIA Map .......................................... 333
Figure 6.111970 U.S. CIA Map .......................................... 334
Figure 6.121979 U.S. CIA Map .......................................... 334
Figure 6.131983 U.S. CIA Map .......................................... 335
Figure 6.141978 Texaco Map ............................................ 336
Figure 6.151997 Satellite Image ..........................................337
Figure 6.162007 Satellite Image ..........................................338
Figure 6.172009 Photographs ........................................... 341
Figure 6.182009 Photograph ............................................ 343
Figure 6.19Map of 1831 by Mr. George Peacock with additions up to1859 ..... 369
Figure 6.20San Juan de Nicaragua or Greytown surveyed under command of
Comm. C. Hatfield U.S.N. 1872 and Com. E.P. Lull U.S.N. 1873. .... 372
Figure 9.1 Photographs of fragile soil removal and dumping of sediments ..... 431
x LIST OF ACRONYMS
CFIA (Spanish Acronym) Association of Federated Engineers
and Architects of Costa Rica
CIA Central Intelligence Agency
CONAVI (Spanish Acronym) Consejo Nacional de Vialidad
(Spanish) or National Roads Authority
CORASCO (Spanish Acronym) Corea & Asociados S.A.
CRA Costa Rica Application
CRM Costa Rica Memorial
DGCA (Spanish Acronym) Directorate General of Environmental
Quality
EIA Environmental Impact Assessment
EIS Environmental Impact Study
EPN (Spanish Acronym) Empresa Portuaria Nacional (Spanish)
or National Port Authority or National
Port Company
FONARE (Spanish Acronym) National Recycling Forum
FUNDENIC-SOS (Spanish Nicaraguan Foundation for Sustainable
Acronym) Development
HEC-RAS Hydrologic Engineering Centers River
Analysis System
ICN (Spanish Acronym) Geographic Institute of Costa Rica
ILC International Law Commission
INETER (Spanish Acronym) Territorial Institute of Nicaragua
IUCN International Union for the
Conservation of Nature
JAPDEVA (Spanish Acronym) Junta de Administración Portuaria y
Desarollo Económico de la Vertiente
Atlántica (Spanish) or Port
Administration and Economic
Development of the Atlantic
LANAMME (Spanish Acronym) Laboratorio Nacional de Materiales y
Modelos Estructurales, Univ ersidad 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
xi MTI Ministry of Transport and
Infrastructure
NCM Nicaragua Counter Memorial
OAS Organization of American States
P.C.I.J. Permanent Court of International Justice
PROCUENCA (Spanish Integrated Management of Water
Acronym) Resources and Sustainable Development
of the San Juan River Basin and its
Coastal Zone
SI-A-PAZ (Spanish Acronym) International System of Protected
Areas for Peace
SINAC (Spanish Acronym) La Dirección Ejecutiva del Sistema
Nacional de Áreas de C onservación
(Spanish) or The Executive Directorate
of the National System of
Conservation Areas
UNITAR United Nations Institute for Training
and Research
UNOSAT UNITAR Operational Satellite
Applications Programme
UTM Universal Transverse Mercator
xii CHAPTER 1
INTRODUCTION
1.1 The present case was brought before the Court by means of an
Application filed by the Republic of Costa Rica (Costa Rica) against the Republic
of Nicaragua (Nicaragua) on 18 November 2010, in which it requested the Court
to adjudge and declare that Nicaragua was in breach of its international
obligations “as r egards the incursion into and occupation of Costa Rican
territory, the serious damage inflicted toits protected rainforests and wetlands,
and the damage intended to the Colorado River, wetlands and protected
ecosystems, as well as the dr edging and canalization activities being carried out
by Nicaragua on the San Juan River.”
1.2 The title given to the case by the Court is Certain Activities carried
out by Nicaragua in the Border Area (Costa Rica v. Nicaragua).
1.3 Costa Rica also on 18 November 2010 filed a Request for the
Indication of Provisional Measures. In its Order of 8 March 2011, the Court
indicated several measures, among which that “Each party shall inform the Court
as to its compliance with the Court’s Order on Provisional Measures” . Costa Rica
has filed 7 reports starting on 1 April and the last one on 3 July 2012. For its part
Nicaragua has presente d two reports, one on 5 April 2011, shortly after the
Court’s Order was read and a secondreport on 23 July 2012.
1 1.4 By Order of 5 April 2011 the Court determined that the time limit
for the filing of each Party’s written pleading was 5 December 2011 for the
Memorial of Costa Rica and 6 August 2012 for the Counter -Memorial of
Nicaragua. Costa Rica filed her Memorial within the time -limit fixed by the Court
and the present Counter-Memorial of Nicaragua is also filed within the time limit
so fixed.
1.5 In her Memorial Costa Rica bases the jurisdiction of the Court on
Article XXXI of the American Treaty on Pacific Settlement of 30 April 1948
(Pact of Bogotá) and on the declarations of acceptance pursuant to Article 36 (2)
of the Statue of the Court made respe ctively by Costa Rica dated 20 February
1973 and by Nicaragua on 24 September 1929.
1.6 Costa Rica also invoked as a basis of the Court’s jurisdiction, a
Diplomatic Note from the Acting Minister of Foreign Affairs of Nicaragua in
which he asserts that the dispute between the Parties is sub judice before the
1
Court. Nicaragua considers it unnecessary to resort to this Diplomatic Note since
the two instruments invoked leave no doubt of the Court’s jurisdiction. If the
intention of citing this Diplomatic Note is to imply that Nicaragua somehow
might attempt to find a way out of this dispute before the Court by invoking
questions of jurisdiction or admissibility then it should be recalled that Costa Rica
was not the first party tocall for this dispute to be brought before the Court.
1CRM, p. 30, par. 1.21
2 1.4 By Order of 5 April 2011 the Court determined that the time limit
for the filing of each Party’s written pleading was 5 December 2011 for the
Memorial of Costa Rica and 6 August 2012 for the Counter -Memorial of
Nicaragua. Costa Rica filed her Memorial within the time -limit fixed by the Court
and the present Counter-Memorial of Nicaragua is also filed within the time limit
so fixed.
1.5 In her Memorial Costa Rica bases the jurisdiction of the Court on
Article XXXI of the American Treaty on Pacific Settlement of 30 April 1948
(Pact of Bogotá) and on the declarations of acceptance pursuant to Article 36 (2)
of the Statue of the Court made respe ctively by Costa Rica dated 20 February
1973 and by Nicaragua on 24 September 1929.
1.6 Costa Rica also invoked as a basis of the Court’s jurisdiction, a
Diplomatic Note from the Acting Minister of Foreign Affairs of Nicaragua in
which he asserts that the dispute between the Parties is sub judice before the
1
Court. Nicaragua considers it unnecessary to resort to this Diplomatic Note since
the two instruments invoked leave no doubt of the Court’s jurisdiction. If the
intention of citing this Diplomatic Note is to imply that Nicaragua somehow
might attempt to find a way out of this dispute before the Court by invoking
questions of jurisdiction or admissibility then it should be recalled that Costa Rica
was not the first party tocall for this dispute to be brought before the Court.
1CRM, p. 30, par. 1.21 jurisdiction of the Court, it nevertheless considers that the main issues raised by
4
Costa Rica have already been settled by the 1858 Treaty , the 1888 Cleveland
Award and the Alexander Awards of 1897-1900 . 6
A. THE SCOPE OF THE DISPUTE
1.9 The two basic issues in the present case are the questions of
sovereignty in the area in and around the mouth of the San Juan River and the
questions relating to the right of Nicaragua to maintain and improve the
navigation of the San Juan de Nicaragua River. As will become evident in the
present Counter-Memorial, both of these questions were the objects of a long
historical dispute between the Parties that was definitely settled by the instruments
mentioned in the preceding paragraph.
1.10 The geographical and historical background of the dispute is
discussed in more detail in Chapter 2 of this Counter -Memorial. At this point, a
few general remarks are inorder.
1. Dredging Program
1.11 A dominant feature of Nicaraguan geography is Lake Nicaragua
that has a surface of 8.264 km2 ( see Figure 1.1). The San Juan de Nicaragua
River originates in Lake Nicaragua and after flowing for more than 200 km .
through Nicaraguan territory it empties into the Atlantic Ocean (Caribbean Sea)
4See paras. 2.23 – 2.30 below.
5See paras. 2.33 – 2.36 below.
6See paras. 2.37 – 2.40 below.
4(see Figure 1.1). Sovereignty over this River was long disputed by Costa Rica
and the question was the object of the Treaties and the Awards indicated in
paragraph 1.7 above. These instrumen ts determined that Nicaragua had
sovereignty over the River and that Costa Rica was to have as a boundary line the
right or southern bank of the River from a point 3 miles from Castillo Viejo to the
sea and in this section of the River, Costa Rica was awarded rights of navigation
with objects of commerce. Furthermore, the Cleveland Award of 1888 clearly
decided that Costa Rica could not prevent Nicaragua from executing the necessary
works in order to maintain and improve the navigation of the River. 7
1.12 The San Juan de Nicaragua River bifurcates into two main
branches about 35 km . before reaching the sea (the delta). At the time the 1858
Treaty was signed, the main flow of the San Juan de Nicaragua River followed the
northern branch (San Juan proper) through Nicaraguan territory and emptied into
the Bay of San Juan. Shortly after that date the main flow of the San Juan
substantially deviated at the delta into a branch known as the Colorado that flows
entirely through Costa Rican territory. 8 This deviation of the waters of the San
Juan to the Colorado branch has increased in the past decades due to the intense
deforestation of the Costa Rican territory along the right (Costa Rican) bank that
has greatly increased the silting of the River and caused a substantial deleterious
effect on its navigability. At present, nearly 90% of the waters of the Nicaraguan
7See paras. 4.38 – 4.39 below.
8See paras. 4.18 – 4.19 below.
5 River of San Juan flow through the Colorado branch. The original main outlet of
the Nicaraguan River is navigable by only small shallow draft boats and only for
certain periods during the year. No sea going vessels can enter from the sea or
navigate in the San Juan proper at any point downstream from the delta . At
present, only Costa Rica can navigate to the sea by following the Nicaraguan
River of San Juan downstream to the delta, and the n following the Colorado
branch through Costa Rican territory to the sea.
6River of San Juan flow through the Colorado branch. The original main outlet of
the Nicaraguan River is navigable by only small shallow draft boats and only for
certain periods during the year. No sea going vessels can enter from the sea or
navigate in the San Juan proper at any point downstream from the delta . At
present, only Costa Rica can navigate to the sea by following the Nicaraguan
River of San Juan downstream to the delta, and the n following the Colorado
branch through Costa Rican territory to the sea. 1.13 This situation prompted Nicaragua, in spite of its lack of adequate
economic resources, to endeavour to put in place a dredging program that would
make possible the year round navigability of the River for at least small river
vessels. Feasibility studies for this dredging program were made and an
Environmental Impact Assessment was conscientiously prepared and approved
after several years of study by the appropriate Authorities. The account of the
development of thi s modest dredging program is introduced in Chapter 2 and is
analysed in detail in Chapter 5.
1.14 The dredging program for the San Juan was discussed in public and
the issue was published in the media, including the Official Gazette. The program
was analysed by the Costa Rican Authorities (including Costa Rica’s F oreign
Minister in a meeting with the Costa Rican Parliament) who concluded that it
would have no significant effects on the water flow of the Colorado branch or on
Costa Rican territory. 10
1.15 The dredging program that has been executed is a very minor
undertaking carried out with small, mostly artisanal, dredging equipment 11that
has not even been able so far to come close to offsetting the increased silting of
the River caused by Costa Rica’s construction of a road running along its right
10See para.4.31; further see para. 5.111; see also Van Rhee & De Vriend, Delft University of
Technology, “The influence of dredging on the discharge of the San Juan River,” 19 July 2012
(hereinafter “2012 Van Rhee & De Vriend Supplemental Report”), Chapter 2.1 (NCM, Vol. I,
Appendix 2).
11See paras. 5.183-5.189.
8 1.13 This situation prompted Nicaragua, in spite of its lack of adequate
economic resources, to endeavour to put in place a dredging program that would
make possible the year round navigability of the River for at least small river
vessels. Feasibility studies for this dredging program were made and an
Environmental Impact Assessment was conscientiously prepared and approved
after several years of study by the appropriate Authorities. The account of the
development of thi s modest dredging program is introduced in Chapter 2 and is
analysed in detail in Chapter 5.
1.14 The dredging program for the San Juan was discussed in public and
the issue was published in the media, including the Official Gazette. The program
was analysed by the Costa Rican Authorities (including Costa Rica’s F oreign
Minister in a meeting with the Costa Rican Parliament) who concluded that it
would have no significant effects on the water flow of the Colorado branch or on
Costa Rican territory. 10
1.15 The dredging program that has been executed is a very minor
undertaking carried out with small, mostly artisanal, dredging equipment 11that
has not even been able so far to come close to offsetting the increased silting of
the River caused by Costa Rica’s construction of a road running along its right
10See para.4.31; further see para. 5.111; see also Van Rhee & De Vriend, Delft University of
Technology, “The influence of dredging on the discharge of the San Juan River,” 19 July 2012
(hereinafter “2012 Van Rhee & De Vriend Supplemental Report”), Chapter 2.1 NCM, Vol. I,
Appendix 2).
11See paras. 5.183-5.189. 2. Issues of Sovereignty
1.16 Improving the navigability of the lower reaches of the San Juan de
Nicaragua, downstream from the deviation to the Colorado branch, has always
been very important to Nicaragua, but not nearly so much to Costa Rica, which
does not need the lower San Juan to reach the sea because it uses the Colorado
instead. Thus, it has always been difficult for Nicaragua to obtain Costa Rica’s
cooperation, even though it has right of navigation in that part of the River . The
task was made more difficult because w hen the dred ging process was ready to
begin, an analysis of the legal instruments was made in order to determine the
exact channel or caño that the border followed. The existing maps, both Costa
Rican and Nicaraguan, had not been verified on the ground since the t ime of the
Alexander Awards at the end of the 19th Century .This was a well -known fact
since all the maps had legends indicating that they had not been verified on the
ground. This problem was discussed with Costa Rica on several occasions in
recent years. As discussed in Chapter 6, a Bi -National Commission had been in
place since January 1991 that, inter alia, addressed border issues. A recurring
question during the meetings of the Commission (e.g. at the meeting in May
1997) was the need for the preparation of “large -scale maps in the border ar ea”
between the starting point on the Caribbean Coast at Punta de Castilla and the
13
frontier post of Peñas Blancas located on the western side of Lake Nicaragua. In
13
See para. 6.7 below.
10 2. Issues of Sovereignty
1.16 Improving the navigability of the lower reaches of the San Juan de
Nicaragua, downstream from the deviation to the Colorado branch, has always
been very important to Nicaragua, but not nearly so much to Costa Rica, which
does not need the lower San Juan to reach the sea because it uses the Colorado
instead. Thus, it has always been difficult for Nicaragua to obtain Costa Rica’s
cooperation, even though it has right of navigation in that part of the River . The
task was made more difficult because w hen the dred ging process was ready to
begin, an analysis of the legal instruments was made in order to determine the
exact channel or caño that the border followed. The existing maps, both Costa
Rican and Nicaraguan, had not been verified on the ground since the t ime of the
Alexander Awards at the end of the 19th Century .This was a well -known fact
since all the maps had legends indicating that they had not been verified on the
ground. This problem was discussed with Costa Rica on several occasions in
recent years. As discussed in Chapter 6, a Bi -National Commission had been in
place since January 1991 that, inter alia, addressed border issues. A recurring
question during the meetings of the Commission (e.g. at the meeting in May
1997) was the need for the preparation of “large -scale maps in the border ar ea”
between the starting point on the Caribbean Coast at Punta de Castilla and the
13
frontier post of Peñas Blancas located on the western side of Lake Nicaragua. In
13
See para. 6.7 below. put in place 20 years before to deal, among other things, with this type of
problems. 15
1.19 Costa Rica reacted to this proposal by sending heavily armed
guards to the area in an attempt to take control of a territory it had never before
16
occupied, administered or even set foot on. The presence of this armed force
could not be sustained, precisely because Costa Rican Authorities had never been
in the area and had no knowledge of its conditions. Costa Rica rejected
Nicaragua’s call for a bilateral discussion to resolve the matter, refused any
bilateral contacts with Nicaragua and called a meeting of the Organization of
American States (OAS) to deal with the dispute.
1.20 As indicated above, Nicaragua did not consider that the dispute
with Costa Rica was a political matter that could be dealt with in the OAS. Rather
it considered that it should be dealt on a bilateral basis or, if no agreement was
possible, it should be brought before the Court since it involved a legal dispute on
sovereignty and sovereign rights.
3. Counter Claims
1.21 Nicaragua is filing 4 Counter Claims in this Counter -Memorial that
are directly connected with the subject-matter of the claims of the Applicant State.
Two of these claims are directly related to the question of the lack of navigability
of the San Juan de Nicaragua River. The first claim addresses, the enormous
15
16See para. 6.17 below.
See para. 6.18 below.
12put in place 20 years before to deal, among other things, with this type of
problems. 15
1.19 Costa Rica reacted to this proposal by sending heavily armed
guards to the area in an attempt to take control of a territory it had never before
16
occupied, administered or even set foot on. The presence of this armed force
could not be sustained, precisely because Costa Rican Authorities had never been
in the area and had no knowledge of its conditions. Costa Rica rejected
Nicaragua’s call for a bilateral discussion to resolve the matter, refused any
bilateral contacts with Nicaragua and called a meeting of the Organization of
American States (OAS) to deal with the dispute.
1.20 As indicated above, Nicaragua did not consider that the dispute
with Costa Rica was a political matter that could be dealt with in the OAS. Rather
it considered that it should be dealt on a bilateral basis or, if no agreement was
possible, it should be brought before the Court since it involved a legal dispute on
sovereignty and sovereign rights.
3. Counter Claims
1.21 Nicaragua is filing 4 Counter Claims in this Counter -Memorial that
are directly connected with the subject-matter of the claims of the Applicant State.
Two of these claims are directly related to the question of the lack of navigability
of the San Juan de Nicaragua River. The first claim addresses, the enormous
15
16See para. 6.17 below.
See para. 6.18 below. Claim is addressed to non- compliance by Costa Rica with the provisional
measures ordered by the Court.
(a) The road
1.23 The first Counter Claim relates to the construction of a road by
Costa Rica very close to the right margin of the San Juan de Nicaragua River. 17
1.24 Costa Rica began officiallyconstructing this road on the basis of an
Emergency Decree dictated by the President of Costa Rica on 21 February 2011.
On the basis of this “emergency” Decree, a 160 k m. road was authorized to be
constructed a few meters from the right margin o f th e San Juan River. The
construction of this road was begun without fulfilling any of the internal
regulatory processes contemplated in Costa Rican legislation or international law
for the construction of this type of project . No Environmental Impact Study was
made for the construction of the road, even though it was known at the time that it
would inevitably destroy forests and wetlands, and seriously affect the San Juan
de Nicaragua River.
1.25 The direct relation of this road to the present case is that, apart from
the environmental damage it is causing, it is enormously accelerating, the
sedimentation of the San Juan de Nicaragua R iver. The need for dredging the
River has become even more imperative since the construction of the road began.
It is now to the point where if the River is not dredged, before long it will simply
17
See paras. 9.8 – 9.33 below.
14cease to exist together with the thousands of square kilometers of wetlands and
flora and fauna that depend on this water course. The international scandal th at
Costa Rica has propagated against Nicaragua for presumed damage to an area of
250 remote and uninhabited hectares near the mouth of the River is simply a cover
for the virtual ecocide with which it is expediting with its industrial and
agricultural activities in an area that affects thousands of square kilometers of
wetlands and centennial forests.
1.26 Nicaragua filed an Application on 21 December 2011 against Costa
Rica for the breaches of its international obligations and the consequent damages
of Nicaragua’s rights that the construction of this road and certain other industrial
and agricultural project entail. That case is titled the Construction of a Road in
Costa Rica along the San Juan River (Nicaragua v. Costa Rica) and is p ending
before the Court. In its Application in that case, Nicaragua stated:
“56. Nicaragua is aware that the legal and factual grounds of the
present case are connected to the ongoing case concerning Certain Activities
carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua).
Nicaragua reserves its rights to consider in a subsequent phase of the present
proceedings and after further consideration of the other pending case whether to
request that the proceedings in both cases should be join.”
1.27 Nicaragua considers that with the filing of its Counter Claims in the
present case, including its claim based on the harm caused to the San Juan de
Nicaragua River caused by the construction of this road and particularly, on its
navigability, a discussion of the joinder of the ca ses becomes more opportune .
This is a question that will have to be decided by the Court.
15 (b) Nicaragua’s right of Navigation on the Colorado River
1.28 The Treaty of limits of 1858 also addressed the question of
navigation on the San Juan de Nicaragua River. Its purpose on this question was
to clarify the rights of the parties over the River. The Treaty stipulated that
Nicaragua had rights of sovereignty which obviously included full rights of
navigation on the River whilst Costa Rica had only certain limited rights of
navigation over it. It was, thus, implicit that both States would have the benefits of
navigation on the River out to the sea. It was never a question that Costa Rica
with its limited rights would be able to navigate along the River and out to sea and
that Nicaragua, due in great part to a process of silting and sedimentation caused
substantially by the hand of man in Costa Rica, would be blocked from doing so.
Therefore, Nicaragua is claiming that it has the same rights of navigation on the
Colorado River as Costa Rica enjoys on the San Juan River, until the conditions
of navigability of the San Juan existing at the time the 1858 Treaty was concluded
18
are re-established.
(c) The Non-existence of the Bay of San Juan del Norte
1.29 The present case quite visibly – if not noisily – involves a question
of sovereignty over territory in the general area of the mouth of the San Juan
River. The area in dispute of approximately 250 hectares of wetlands around
Harbour Head, as claimed by Cos ta Rica, is not the only or even the most
18
See paras. 4.66 – 4.75 below.
16 (b) Nicaragua’s right of Navigation on the Colorado River
1.28 The Treaty of limits of 1858 also addressed the question of
navigation on the San Juan de Nicaragua River. Its purpose on this question was
to clarify the rights of the parties over the River. The Treaty stipulated that
Nicaragua had rights of sovereignty which obviously included full rights of
navigation on the River whilst Costa Rica had only certain limited rights of
navigation over it. It was, thus, implicit that both States would have the benefits of
navigation on the River out to the sea. It was never a question that Costa Rica
with its limited rights would be able to navigate along the River and out to sea and
that Nicaragua, due in great part to a process of silting and sedimentation caused
substantially by the hand of man in Costa Rica, would be blocked from doing so.
Therefore, Nicaragua is claiming that it has the same rights of navigation on the
Colorado River as Costa Rica enjoys on the San Juan River, until the conditions
of navigability of the San Juan existing at the time the 1858 Treaty was concluded
18
are re-established.
(c) The Non-existence of the Bay of San Juan del Norte
1.29 The present case quite visibly – if not noisily – involves a question
of sovereignty over territory in the general area of the mouth of the San Juan
River. The area in dispute of approximately 250 hectares of wetlands around
Harbour Head, as claimed by Cos ta Rica, is not the only or even the most
18
See paras. 4.66 – 4.75 below. territory in dispute unless “it is necessary to avoid irreparable prejudice being
caused to the part of the wetland where that territory is situated”. There has been
no proof or even claim that there is irreparable prejudice bei ng caused and yet
Costa Rica persists i n its visits without taking Nicaragua into proper account.
Apart from this, the actions taken by Costa Rica –not least the construction of the
road – are actions which pose grave risks of irreparable prejudice to the area in
dispute and surrounding wetlands, and significantly aggravate or extend the
dispute before the Court and make it more difficult to resolve.
B. STRUCTURE OF THE COUNTER MEMORIAL
1.31 The Counter Memorial is structured in accordance with the schema
indicated below that identifies the C hapters into which it is divided. It addresses
the issues raised by the Applicant State and also raises Counter Claims.
1.32 The Schema of the Counter Memorialis as follows:
Chapter 2 addresses the background of the dispute. It is divided into 4 sections:
the first is the relevant geography including a general description of the San Juan
de Nicaragua River and the areas near its mouth where the main border dispute is
sited; the second section, is a general historical backgroun d on how the border
was defined as well as the rights of the Parties on the River; the third section gives
a general overview of the dredging program that has been put in place in the
River; and the final section describes the activities in the caño or cha nnel of the
River that serves as the border.
18territory in dispute unless “it is necessary to avoid irreparable prejudice being
caused to the part of the wetland where that territory is situated”. There has been
no proof or even claim that there is irreparable prejudice bei ng caused and yet
Costa Rica persists i n its visits without taking Nicaragua into proper account.
Apart from this, the actions taken by Costa Rica –not least the construction of the
road – are actions which pose grave risks of irreparable prejudice to the area in
dispute and surrounding wetlands, and significantly aggravate or extend the
dispute before the Court and make it more difficult to resolve.
B. STRUCTURE OF THE COUNTER MEMORIAL
1.31 The Counter Memorial is structured in accordance with the schema
indicated below that identifies the C hapters into which it is divided. It addresses
the issues raised by the Applicant State and also raises Counter Claims.
1.32 The Schema of the Counter Memorialis as follows:
Chapter 2 addresses the background of the dispute. It is divided into 4 sections:
the first is the relevant geography including a general description of the San Juan
de Nicaragua River and the areas near its mouth where the main border dispute is
sited; the second section, is a general historical backgroun d on how the border
was defined as well as the rights of the Parties on the River; the third section gives
a general overview of the dredging program that has been put in place in the
River; and the final section describes the activities in the caño or cha nnel of the
River that serves as the border. how this coincides with the caño in dispute and the historic activities of Nicaragua
in the area. Furthermor e, this C hapter explains the reasons why the Bay of San
Juan can no longer be considered to be common to both States since it no longer
exists as a physical feature.
Chapter 7 discusses other violations alleged by Costa Rica; in particular, the
alleged lack of compliance by Nicaragua with the Provisional Measures Order of
8 March 2011 and with the Judgment of the Court of 13 July 2009. It shows that
there is no merit to any of these allegations.
Chapter 8 addresses the lengthy and disjointed list of Remedie s requested by
Costa Rica in its Memorial, and shows that none of them is justified.
Chapter 9 sets forth the four Counter Claim s made by Nicaragua on the questions
of (i) the road that is being constructed by Costa Rica on the right bank of the
River, (ii) physical disappearance of the Bay of San Juan, (iii) Nicaragua’s need
and right to navigation to the sea on the Colorado Branch of the River, and (iv)
Costa Rica’s non-compliance with the Order of the Court and provisional
measures.
Finally, the submissions of Nicaragua.
In addition to Volume I, the Counter Memorial consists of Volumes II, III and IV,
which contain 26 documentary annexes, 11 documents relating to national
legislations, 1 military document, 42 correspondence documents, 13 diplomatic
notes, 6 minutes of meetings, 11 affidavits, 22 press report, 6 reports, 22 maps and
15 images.
20how this coincides with the caño in dispute and the historic activities of Nicaragua
in the area. Furthermor e, this C hapter explains the reasons why the Bay of San
Juan can no longer be considered to be common to both States since it no longer
exists as a physical feature.
Chapter 7 discusses other violations alleged by Costa Rica; in particular, the
alleged lack of compliance by Nicaragua with the Provisional Measures Order of
8 March 2011 and with the Judgment of the Court of 13 July 2009. It shows that
there is no merit to any of these allegations.
Chapter 8 addresses the lengthy and disjointed list of Remedie s requested by
Costa Rica in its Memorial, and shows that none of them is justified.
Chapter 9 sets forth the four Counter Claim s made by Nicaragua on the questions
of (i) the road that is being constructed by Costa Rica on the right bank of the
River, (ii) physical disappearance of the Bay of San Juan, (iii) Nicaragua’s need
and right to navigation to the sea on the Colorado Branch of the River, and (iv)
Costa Rica’s non-compliance with the Order of the Court and provisional
measures.
Finally, the submissions of Nicaragua.
In addition to Volume I, the Counter Memorial consists of Volumes II, III and IV,
which contain 26 documentary annexes, 11 documents relating to national
legislations, 1 military document, 42 correspondence documents, 13 diplomatic
notes, 6 minutes of meetings, 11 affidavits, 22 press report, 6 reports, 22 maps and
15 images. 2.4 For these reasons, the geographical and historical background
submitted in this Chapter (Sections A and B) is an abridged version of what was
presented in the former case, with particular additions as appropriate in the
present circumstances.
2.5 This Chapter also gives a general background of the dredging
program that Nicaragua is attempting to carry out in the San Juan de Nicaragua
River (Section C), as well as a short explanation of the activities that have been
carried out in the “caño” in dispute (Section D).
A. THE RELEVANT GEOGRAPHY
2.6 The purpose of this section is to describe the present situation of
the San Juan de Nicaragua River, and the geography and fragile ecosystem along
the river, including the adjacent biosphere reserves and international ly-protected
wetlands. This section also includes a geographical description of the lower part
of the San Juan de Nicaragua River which covers the area of Harbour Head
Lagoon and what used to be the historical bay at its mouth, and gives a picture of
the obstacles to navigation on this part of the river.
1. The San Juan de Nicaragua River
2.7 The San Juan de Nicaragua River originates at Lake Nicaragua and
runs the length of its 205 kilometers entirely through Nicaraguan territory while
descending 31 meters from the level of the lake into its present outlet directly into
the Caribbean Sea. (see Figure 2.1.)
22 2.4 For these reasons, the geographical and historical background
submitted in this Chapter (Sections A and B) is an abridged version of what was
presented in the former case, with particular additions as appropriate in the
present circumstances.
2.5 This Chapter also gives a general background of the dredging
program that Nicaragua is attempting to carry out in the San Juan de Nicaragua
River (Section C), as well as a short explanation of the activities that have been
carried out in the “caño” in dispute (Section D).
A. THE RELEVANT GEOGRAPHY
2.6 The purpose of this section is to describe the present situation of
the San Juan de Nicaragua River, and the geography and fragile ecosystem along
the river, including the adjacent biosphere reserves and international ly-protected
wetlands. This section also includes a geographical description of the lower part
of the San Juan de Nicaragua River which covers the area of Harbour Head
Lagoon and what used to be the historical bay at its mouth, and gives a picture of
the obstacles to navigation on this part of the river.
1. The San Juan de Nicaragua River
2.7 The San Juan de Nicaragua River originates at Lake Nicaragua and
runs the length of its 205 kilometers entirely through Nicaraguan territory while
descending 31 meters from the level of the lake into its present outlet directly into
the Caribbean Sea. (see Figure 2.1.) 2.9 The first sector of the San Juan of Nicaragua River runs from its
outlet in the lake to El Castillo; in this sector its course flows broadly, with an
average width of 300 meters; its banks are low and prone to flooding and are also
characterized by the existence of sandy islands where vegetation has grown. In its
middle sector, the river runs down through several rapids, passing through
stretches not more than 50 meters wide ; the current becomes deeper and forms
ponds, crating the so- called “dead waters”. Immediately downstream from this
area, the San Carlos River descends from the volcanic chain of Costa Rica and
discharges large amounts of silt into the San Juan, causing the current to form
rectilinear shoals up to the confluence of the Sarapiquí, another river originating
in Costa Rica that also carries impressive amounts of silt and contaminan ts from
the agricultural and industrial developments that have deforested the area were
this river flows.
2.10 According to the official classification of watersheds in Costa Rica,
among the tributaries located in the southern sector of the San Juan de Nicaragua
River subsystem are the Poco Solo, La Cureña, San Carlos and Sarapiquí Rivers.
These last two rivers, whose surrounding lands are mainly used for farming,
agriculture and logging, provide much of the flow and virtually the entire load of
sediment carried by the San Juan of Nicaragua River 25.
25Procuenca San Juan, Problems related to soil degradation and sedimentation, available at
http://www.oas.org/sanjuan/english/documents/tda/information/soil.html (last visite21 July
2012).
24 2.9 The first sector of the San Juan of Nicaragua River runs from its
outlet in the lake to El Castillo; in this sector its course flows broadly, with an
average width of 300 meters; its banks are low and prone to flooding and are also
characterized by the existence of sandy islands where vegetation has grown. In its
middle sector, the river runs down through several rapids, passing through
stretches not more than 50 meters wide ; the current becomes deeper and forms
ponds, crating the so- called “dead waters”. Immediately downstream from this
area, the San Carlos River descends from the volcanic chain of Costa Rica and
discharges large amounts of silt into the San Juan, causing the current to form
rectilinear shoals up to the confluence of the Sarapiquí, another river originating
in Costa Rica that also carries impressive amounts of silt and contaminan ts from
the agricultural and industrial developments that have deforested the area were
this river flows.
2.10 According to the official classification of watersheds in Costa Rica,
among the tributaries located in the southern sector of the San Juan de Nicaragua
River subsystem are the Poco Solo, La Cureña, San Carlos and Sarapiquí Rivers.
These last two rivers, whose surrounding lands are mainly used for farming,
agriculture and logging, provide much of the flow and virtually the entire load of
sediment carried by the San Juan of Nicaragua River 25.
25Procuenca San Juan, Problems related to soil degradation and sedimentation, available at
http://www.oas.org/sanjuan/english/documents/tda/information/soil.html (last visite21 July
2012). 2. The adjacent biosphere reserves and internationally -protected
wetlands
2.14 The area including and surrounding the San Juan River has an
impressive wealth of biodiversity and Nicaragua has invested considerable efforts
in crafting and enforcing the laws and regulat ions necessary to protect and
preserve these delicate ecological areas . 29
2.15 The San Juan River Biosphere Reserve, recognized as such by the
Man and Biosphere Programme of the United Nations Educational, Scientific and
Cultural Organization (UNESCO), comprises seven protected areas, including the
Indio Maíz Biological Reserve bordering the Nicaraguan side of the river and the
San Juan River Wildlife Refuge 30, consisting of the river itself and a two -
kilometer strip abutting the Nicaraguan bank. The San Juan River Wildlife Refuge
is recognized by the RAMSAR Convention as an internationally -protected
wetland which meets “nearly all of the RAMSAR criteria” and forms, along with
the Indio Maíz Biological Reserve, “one of the most extensive biological nuclei of
31
the Mesoamerican Biological Corridor” .
29See rejoinder of the Republic of Nicaragua, “Dispute Regarding Navigational and Related
Rights (Costa Rica v. Nicaragua)”, Volume 1, 15 July 2008, para. 4.35.
30“Furthermore the biosphere reserve includes a part of Lake Cocibolca and the municipalities of
El Almendro, San Miguelito, Morrito and Nueva Guinea with a large (256,000 habitants) and
culturally rich human population including 20,000 habitants of Rama, M iskitu, Negra and Creole
ethnic groups. Each one of these groups has its own way of preserving and/or using the national
resources of the area”, available at Ramsar’s official website http://www.ramsar.org/
cda/en/ramsar-pubs-annolist-anno-nicaragua/main/ramsar/1-30-168%5E16106_4000_0__ (last
31sited 21 July 2012).
Ibid.
26 2. The adjacent biosphere reserves and internationally -protected
wetlands
2.14 The area including and surrounding the San Juan River has an
impressive wealth of biodiversity and Nicaragua has invested considerable efforts
in crafting and enforcing the laws and regulat ions necessary to protect and
preserve these delicate ecological areas . 29
2.15 The San Juan River Biosphere Reserve, recognized as such by the
Man and Biosphere Programme of the United Nations Educational, Scientific and
Cultural Organization (UNESCO), comprises seven protected areas, including the
Indio Maíz Biological Reserve bordering the Nicaraguan side of the river and the
San Juan River Wildlife Refuge 30, consisting of the river itself and a two -
kilometer strip abutting the Nicaraguan bank. The San Juan River Wildlife Refuge
is recognized by the RAMSAR Convention as an internationally -protected
wetland which meets “nearly all of the RAMSAR criteria” and forms, along with
the Indio Maíz Biological Reserve, “one of the most extensive biological nuclei of
31
the Mesoamerican Biological Corridor” .
29See rejoinder of the Republic of Nicaragua, “Dispute Regarding Navigational and Related
Rights (Costa Rica v. Nicaragua)”, Volume 1, 15 July 2008, para. 4.35.
30“Furthermore the biosphere reserve includes a part of Lake Cocibolca and the municipalities of
El Almendro, San Miguelito, Morrito and Nueva Guinea with a large (256,000 habitants) and
culturally rich human population including 20,000 habitants of Rama, M iskitu, Negra and Creole
ethnic groups. Each one of these groups has its own way of preserving and/or using the national
resources of the area”, available at Ramsar’s official website http://www.ramsar.org/
cda/en/ramsar-pubs-annolist-anno-nicaragua/main/ramsar/1-30-168%5E16106_4000_0__ (last
31sited 21 July 2012).
Ibid. first three Awards are especially relevant to the present case since they have
application for the area in dispute.
2.18 The demarcation process began on the Caribbean side and was
subject to a special caveat by General Alexander. He made very clear that in the
area presently in dispute the border was to follow the right margin of the river and
hence, was subject to the changes that might occur on the river. Thus, General
Alexander stated as follows in his Second Award:
a. “It should be noted, for a clearer understanding of the question
at hand, that the San Juan River runs through a flat and sandy
delta in the lower portion of its course and that it is obviously
possible that its banks will not only gradually expand o r
contract but that there will be wholesale changes in its
channels…
b. “The proposed measurement and demarcation of the boundary
line will not have any effect on the application of those
principles…
c. “The fact that the line has been measured and demarcated will
neither increase nor decrease any legal standin36that it might
have had it not been measured or demarcated.”
2.19 Another point that was clarified by the Arbitrator was the claim by
Costa Rica that the boundary should follow the channel of the San Juan that
headed into the western part of the San Juan Bay. General Alexander explicitly
decided that the border should follow the channel that headed to the right; that is,
toward the east into Harbour Head, which was then the eastern part of the orig inal
Bay of San Juan.
36
Second Award of the Umpire E.P. Alexander in the boundary question between Costa Rica and
Nicaragua (hereinafter, Second Award ), reprinted United Nations, Reports of International
Arbitral Awards, Vol. XXVIII (2007) p. 224 (emphasis added) (CRM, Vol. II, Annex 10).
28first three Awards are especially relevant to the present case since they have
application for the area in dispute.
2.18 The demarcation process began on the Caribbean side and was
subject to a special caveat by General Alexander. He made very clear that in the
area presently in dispute the border was to follow the right margin of the river and
hence, was subject to the changes that might occur on the river. Thus, General
Alexander stated as follows in his Second Award:
a. “It should be noted, for a clearer understanding of the question
at hand, that the San Juan River runs through a flat and sandy
delta in the lower portion of its course and that it is obviously
possible that its banks will not only gradually expand o r
contract but that there will be wholesale changes in its
channels…
b. “The proposed measurement and demarcation of the boundary
line will not have any effect on the application of those
principles…
c. “The fact that the line has been measured and demarcated will
neither increase nor decrease any legal standin36that it might
have had it not been measured or demarcated.”
2.19 Another point that was clarified by the Arbitrator was the claim by
Costa Rica that the boundary should follow the channel of the San Juan that
headed into the western part of the San Juan Bay. General Alexander explicitly
decided that the border should follow the channel that headed to the right; that is,
toward the east into Harbour Head, which was then the eastern part of the orig inal
Bay of San Juan.
36
Second Award of the Umpire E.P. Alexander in the boundary question between Costa Rica and
Nicaragua (hereinafter, Second Award ), reprinted United Nations, Reports of International
Arbitral Awards, Vol. XXVIII (2007) p. 224 (emphasis added) (CRM, Vol. II, Annex 10). and the rights of maintaining and improving the navigability of the River are
reproduced, and their juridical import is analyzed.
1. The Jérez-Cañas Treaty of Limits of 15 April 1858
2.23 At the time of independence from Spain on 15 September 1821, the
five colonial provinces that had constituted the Captaincy General of Guatemala
became an independent State. It was then agreed that the borders between all the
Central American states should follow the rule of uti possidetis iuris. 39
2.24 In 1824, a civil war broke out in Nicaragua leaving the country
incapable of defending its territory. Taking advantage of this ruinous situation and
ignoring the rule of uti possidetis iuris , a substantial part of the territory of the
former province of Nicaragua, the District of Nicoya (Guanacaste), was taken
over by Costa Rica. With its de facto possession of this territory, Costa Rica laid
claim to a part of the margin of the huge Lake Nicaragua which, added to its
claims of sovereignty over the San Juan de Nicaragua River, allowed Costa Rica
to claim exclusive rights over any interoceanic canal to be cut through that part of
the Central American isthmus.
2.25 In 1856, Nicaragua was invaded by William Walker and other
military elements from the United States, who took complete control of the
country and declared himself President of Nicaragua. This a ction prompted the
39See Counter Memorial of the Republic of Nicaragua, “Dispute Regarding Navigational and
Related Rights (Costa Rica v Nicaragua)” , Volume I, 29 May 2007, para 1.2.1.
30and the rights of maintaining and improving the navigability of the River are
reproduced, and their juridical import is analyzed.
1. The Jérez-Cañas Treaty of Limits of 15 April 1858
2.23 At the time of independence from Spain on 15 September 1821, the
five colonial provinces that had constituted the Captaincy General of Guatemala
became an independent State. It was then agreed that the borders between all the
Central American states should follow the rule of uti possidetis iuris. 39
2.24 In 1824, a civil war broke out in Nicaragua leaving the country
incapable of defending its territory. Taking advantage of this ruinous situation and
ignoring the rule of uti possidetis iuris , a substantial part of the territory of the
former province of Nicaragua, the District of Nicoya (Guanacaste), was taken
over by Costa Rica. With its de facto possession of this territory, Costa Rica laid
claim to a part of the margin of the huge Lake Nicaragua which, added to its
claims of sovereignty over the San Juan de Nicaragua River, allowed Costa Rica
to claim exclusive rights over any interoceanic canal to be cut through that part of
the Central American isthmus.
2.25 In 1856, Nicaragua was invaded by William Walker and other
military elements from the United States, who took complete control of the
country and declared himself President of Nicaragua. This a ction prompted the
39See Counter Memorial of the Republic of Nicaragua, “Dispute Regarding Navigational and
Related Rights (Costa Rica v Nicaragua)” , Volume I, 29 May 2007, para 1.2.1. 2.29 The Treaty also recognized the dominion and exclusive sovereignty
of Nicaragua over the San Juan River, and granted Costa Rica perpetual rights of
navigation, with objects of commerce, in a limited section of the river.
2.30 It also established, in Article IV, that the Bay of San Juan del Norte
as well as Salinas Bay shall be common to both Republics. However, as will be
shown in Chapter 4, the Bay of San Juan del Norte has ceased to exist and with it
any Costa Rica rights.
2. The Award of President Cleveland of 1888
2.31 For the Nicaraguan people and government, the Treaty of Limits of
April 15, 1858 was a vivid manifestation and constant reminder of the occupation
of Nicaragua by Costa Rica during and after one of the bloodiest war fought in the
history of Central America. 42The Treaty was perceived by Nicaraguans as
imposed by the use of force at a moment when the national defenses were at their
weakest. This led Nicaragua to challenge the validity of the Treaty of 1858.
2.32 In order to put an end to the dispute on the validity of the 1858
Treaty, as well as clarifying, if the Treaty was valid, certain aspects of the Treaty
that Nicaragua considered needful of interpreta tion, a Treaty was signed on 24
December 1886, whereby it was agreed to submit all the issues to the Arbitration
of the President of the United States, Mr. Grover Cleveland.
42
More people die during this war than in the war between Spain and the United States in 1 898.
Bermann, Karl: Within the framework of the Great Stick: Nicaragua and the United States since
1848 (South End Press, Boston, 1986, p.72- 76).
32 2.29 The Treaty also recognized the dominion and exclusive sovereignty
of Nicaragua over the San Juan River, and granted Costa Rica perpetual rights of
navigation, with objects of commerce, in a limited section of the river.
2.30 It also established, in Article IV, that the Bay of San Juan del Norte
as well as Salinas Bay shall be common to both Republics. However, as will be
shown in Chapter 4, the Bay of San Juan del Norte has ceased to exist and with it
any Costa Rica rights.
2. The Award of President Cleveland of 1888
2.31 For the Nicaraguan people and government, the Treaty of Limits of
April 15, 1858 was a vivid manifestation and constant reminder of the occupation
of Nicaragua by Costa Rica during and after one of the bloodiest war fought in the
history of Central America. 42 The Treaty was perceived by Nicaraguans as
imposed by the use of force at a moment when the national defenses were at their
weakest. This led Nicaragua to challenge the validity of the Treaty of 1858.
2.32 In order to put an end to the dispute on the validity of the 1858
Treaty, as well as clarifying, if the Treaty was valid, certain aspects of the Treaty
that Nicaragua considered needful of interpreta tion, a Treaty was signed on 24
December 1886, whereby it was agreed to submit all the issues to the Arbitration
of the President of the United States, Mr. Grover Cleveland.
42
More people die during this war than in the war between Spain and the United States in 1 898.
Bermann, Karl: Within the framework of the Great Stick: Nicaragua and the United States since
1848 (South End Press, Boston, 1986, p.72- 76). “…I declare the initial line of the boundary to run as follows, to wit:
“Its direction shall be due northeast and southwest, across the bank of
sand, from the Caribbean Sea into the waters of Harbor Head Lagoon.
It shall pass, at its nearest point, 300 feet on the northwest side from
the small hut now standing in that vicinity. On reaching the waters of
Harbor Head Lagoon the boundary line shall turn to the left, or
southeastward, and shall follow the water’s edge around the harbor
until it reaches the river proper by the first channel met . Up this
channel, and up the river proper, the line shall continue to ascend as
directed in the trea.”
2.39 His second Award, date 20 December 1897, concerned the request
by Costa Rica that the Bi -National Commission should determine the course of
the River on the ground such as it was at that moment in time. General Alexander
complied but made very clear that since the right margin of the River was the
border, any demarcation line fixed in the ground at that moment “will necessarily
be affected in the future by all these gradual or sudden changes” in the course of
the River.
2.40 This matter was further clarified in the third Award, dated
22 March 1898, in which Alexander decided that the water level of the river that
should be used to determine the position of the right bank was the water level in
its navigable state. Alexander decided,
“that the exact dividing line between the jurisdictions of the two
countries is the right bank of the river, with the water at ordinary stage
and navigable by ships and general-purpose boats.”
34 “…I declare the initial line of the boundary to run as follows, to wit:
“Its direction shall be due northeast and southwest, across the bank of
sand, from the Caribbean Sea into the waters of Harbor Head Lagoon.
It shall pass, at its nearest point, 300 feet on the northwest side from
the small hut now standing in that vicinity. On reaching the waters of
Harbor Head Lagoon the boundary line shall turn to the left, or
southeastward, and shall follow the water’s edge around the harbor
until it reaches the river proper by the first channel met . Up this
channel, and up the river proper, the line shall continue to ascend as
directed in the treat.”
2.39 His second Award, date 20 December 1897, concerned the request
by Costa Rica that the Bi -National Commission should determine the course of
the River on the ground such as it was at that moment in time. General Alexander
complied but made very clear that since the right margin of the River was the
border, any demarcation line fixed in the ground at that moment “will necessarily
be affected in the future by all these gradual or sudden changes” in the course of
the River.
2.40 This matter was further clarified in the third Award, dated
22 March 1898, in which Alexander decided that the water level of the river that
should be used to determine the position of the right bank was the water level in
its navigable state. Alexander decided,
“that the exact dividing line between the jurisdictions of the two
countries is the right bank of the river, with the water at ordinary stage
and navigable by ships and general-purpose boats.” Nicaragua River whenever Nicara gua tries to exercises its sovereign rights over
the river, including its efforts to restore the river’s navigability.
2.45 Alexander made it clear that “the San Juan River must be
considered a navigable river” and therefore, under the above -mentioned
international instruments, Nicaragua has not only the right to dredge and maintain
the river, but also has a responsibility to do so, particularly for the wellbeing of
the communities around the river that depend exclusively on river navigation, and
to maintain the natural ecosystem that depends on the existence of the river.
2.46 In sum, the border between Nicaragua and Costa Rica is not a static
one, but is subject to the changes undergone by the course of the San Juan de
Nicaragua River, especially at its mouth. The pertinent changes are the natural
ones, not those caused by the industry or artifice of Costa Rica. The 160 km long
road that Costa Rica has constructed along the river bank not only has destroyed
the natural ecosystems but necessarily has severe consequen ces on the river,
particularly because of the sedimentary character of the soil that has been dumped
or allowed to leech into the river, adding to the need for dredging in order to
maintain navigability.
36Nicaragua River whenever Nicara gua tries to exercises its sovereign rights over
the river, including its efforts to restore the river’s navigability.
2.45 Alexander made it clear that “the San Juan River must be
considered a navigable river” and therefore, under the above -mentioned
international instruments, Nicaragua has not only the right to dredge and maintain
the river, but also has a responsibility to do so, particularly for the wellbeing of
the communities around the river that depend exclusively on river navigation, and
to maintain the natural ecosystem that depends on the existence of the river.
2.46 In sum, the border between Nicaragua and Costa Rica is not a static
one, but is subject to the changes undergone by the course of the San Juan de
Nicaragua River, especially at its mouth. The pertinent changes are the natural
ones, not those caused by the industry or artifice of Costa Rica. The 160 km long
road that Costa Rica has constructed along the river bank not only has destroyed
the natural ecosystems but necessarily has severe consequen ces on the river,
particularly because of the sedimentary character of the soil that has been dumped
or allowed to leech into the river, adding to the need for dredging in order to
maintain navigability. 46
Figure(s) 2.2.
Figure(s) 2.2. Photographs of stuck boats in the San Juan deNicaragua River
2.49 Given that the San Juan de Nicaragua River represents the only
transportation route from the interior of the country to the municipality of San
Juan de Nicaragua, it is of vital importance for Nicaragua to improve conditions
for navigating the stretch of the river in the section that extends from the Delta,
near the bifurcation with the Colorado River, to the mouth of the river in the
Caribbean Sea. By so gravely limiting navigability, the sedimentation has
prevented the residents of the town of San Juan de Nicaragua from enjoying full
46Ibid., Annex I
38 46
Figure(s) 2.2.
Figure(s) 2.2. Photographs of stuck boats in the San Juan deNicaragua River
2.49 Given that the San Juan de Nicaragua River represents the only
transportation route from the interior of the country to the municipality of San
Juan de Nicaragua, it is of vital importance for Nicaragua to improve conditions
for navigating the stretch of the river in the section that extends from the Delta,
near the bifurcation with the Colorado River, to the mouth of the river in the
Caribbean Sea. By so gravely limiting navigability, the sedimentation has
prevented the residents of the town of San Juan de Nicaragua from enjoying full
46Ibid., Annex I the State institution charged with administering the Nation’s ports, improving the
country’s navigation systems, and optimizing ship traffic capacity – requested
approval for a dredging project from the Ministe rio del Ambiente y los Recursos
Naturales (“MARENA”), or Ministry of the Environment and Natural
Resources. 50
2.53 The proposed dredging project, which is discussed in detail in
Chapter 5 below, was aimed at the restoration of a safe navigation route to permit
a year-round river connection between communities in the extreme south- eastern
part of Nicaragua and the rest of the country, and encourage the development of
commerce in the region. Specifically, EPN proposed that a 42-kilometer stretch of
the river be dre dged, from Punta Petaca, upstream from the bifurcation of the
Lower San Juan River and Colorado River, to the mouth of the San Juan in the
Caribbean Sea in order to restore a channel 2.0 meters deep, 30 meters wide in the
upstream section, and 20 meters wi de in the downstream section. 51 The estimated
1.5 million cubic meters of sediment to be extracted during the dredging project
was to be deposited on the Nicaraguan bank in carefully selected sites requiring
reinforcement and reforestation, and those sites were to be carefully constructed
and replanted with native vegetation in order to prevent harm to surrounding areas
and reduce future erosion of the Nicaraguan bank and resulting sedimentation.
50Declaration of Lester Antonio Quintero Gomez, Technical Manager of EPN, 16 December
2010, point 3 (CRM, Vol. IV, Annex 164).
51Environmental Impact Study for Improving Navigation on the San Juan de Nicaragua River
(Excerpts), September 2006, p. 5 (NCM, Vol. II, Annex 7).
40the State institution charged with administering the Nation’s ports, improving the
country’s navigation systems, and optimizing ship traffic capacity – requested
approval for a dredging project from the Ministe rio del Ambiente y los Recursos
Naturales (“MARENA”), or Ministry of the Environment and Natural
Resources. 50
2.53 The proposed dredging project, which is discussed in detail in
Chapter 5 below, was aimed at the restoration of a safe navigation route to permit
a year-round river connection between communities in the extreme south- eastern
part of Nicaragua and the rest of the country, and encourage the development of
commerce in the region. Specifically, EPN proposed that a 42-kilometer stretch of
the river be dre dged, from Punta Petaca, upstream from the bifurcation of the
Lower San Juan River and Colorado River, to the mouth of the San Juan in the
Caribbean Sea in order to restore a channel 2.0 meters deep, 30 meters wide in the
upstream section, and 20 meters wi de in the downstream section. 51The estimated
1.5 million cubic meters of sediment to be extracted during the dredging project
was to be deposited on the Nicaraguan bank in carefully selected sites requiring
reinforcement and reforestation, and those sites were to be carefully constructed
and replanted with native vegetation in order to prevent harm to surrounding areas
and reduce future erosion of the Nicaraguan bank and resulting sedimentation.
50Declaration of Lester Antonio Quintero Gomez, Technical Manager of EPN, 16 December
2010, point 3 (CRM, Vol. IV, Annex 164).
51Environmental Impact Study for Improving Navigation on the San Juan de Nicaragua River
(Excerpts), September 2006, p. 5 (NCM, Vol. II, Annex 7). 2.56 MARENA finally issued an environmental permit through
54
administrative Resolution No. 038-2008 at the end of 2008, after concluding that
the project was not likely to have any significant adverse impact on the
environment, including the environment of Costa Rica. This conclusion was based
upon findings that the project, when implemented under certain required
conditions, would have no material effect on the San Juan River itself or the flora,
fauna, or abiotic characteristics of its zone of influence, whether on the
Nicaraguan or Costa Rican side of the river, and because dredged sediments –
which were to be handled pursuant to specific requirements aimed at
environmental protection and restoration – were only to b e deposited on the
Nicaraguan side of the River. The environmental impact assessment process had
also established that the project would have no material effect on the flow of the
Colorado River. Moreover, it had been established that the project would have
positive effects, not only for the Nicaraguan and Costa Rican people who live in
the area, but also for the San Juan River itself and its zone of influence, including
a reduction of erosion and sedimentation due to the careful restoration of portions
of the Nicaraguan bank, as well as the restoration of the mangrove swamps near
the River’s mouth and the many species that depend on the health of those
55
swamps and the rest of the River for their well -being. As established in Chapter
54 See Chapter 5. See also Administrative Resolution No. 038 -2008, 22 December 2008, Art. VI
(NCM, Vol. III, Annex 33).
55See Affidavit of Hilda Espinoza Urbina, Director General of MARENA’s Department of
Environmental Quality, 20 December 2010, point 20 . (CRM, Vol. IV, Annex 165).
42 2.56 MARENA finally issued an environmental permit through
54
administrative Resolution No. 038-2008 at the end of 2008, after concluding that
the project was not likely to have any significant adverse impact on the
environment, including the environment of Costa Rica. This conclusion was based
upon findings that the project, when implemented under certain required
conditions, would have no material effect on the San Juan River itself or the flora,
fauna, or abiotic characteristics of its zone of influence, whether on the
Nicaraguan or Costa Rican side of the river, and because dredged sediments –
which were to be handled pursuant to specific requirements aimed at
environmental protection and restoration – were only to b e deposited on the
Nicaraguan side of the River. The environmental impact assessment process had
also established that the project would have no material effect on the flow of the
Colorado River. Moreover, it had been established that the project would have
positive effects, not only for the Nicaraguan and Costa Rican people who live in
the area, but also for the San Juan River itself and its zone of influence, including
a reduction of erosion and sedimentation due to the careful restoration of portions
of the Nicaraguan bank, as well as the restoration of the mangrove swamps near
the River’s mouth and the many species that depend on the health of those
55
swamps and the rest of the River for their well -being. As established in Chapter
54 See Chapter 5. See also Administrative Resolution No. 038 -2008, 22 December 2008, Art. VI
(NCM, Vol. III, Annex 33).
55See Affidavit of Hilda Espinoza Urbina, Director General of MARENA’s Department of
Environmental Quality, 20 December 2010, point 20 . (CRM, Vol. IV, Annex 165). D. ACTIVITIES IN THE CAÑO
2.60 On 28 August 2009, EPN submitted an application to modestly
expand the work approved in Resolution No. 038- 2008 by adding a proposal to
include the clearing by hand of vegetation and debris from the 1,560 meter length
of the Harbour Head caño to a width of 30 meters (at the mouth of the caño in
Harbour Head). Information was submitted to MARENA showing that the caño,
which had existed for decades, as demonstrated in Chapter 6, had gradually
become difficult to navigate because of the accumulation of sedimen t and organic
debris.
2.61 The application submitted by the EPN was divided in two sections:
• “Activity No. 1: Cleaning of the Caño” – that is, “a tributary of the San
Juan R iver that empties into the Harb our Head Lagoon” located from
reference coordinates North 1208638 – East 863133 to North 1209823 –
East 863450 – whose length of approximately 1,500 meters was to be
58
cleaned to a depth of 2.5 meters up to a maximum width of 30 meters; and
• “Activity No. 2: Cleaning, using a stationary cutting and suction dredge, of
a stretch of the San Juan River” located at reference coordinates North
1208439 – East 863131, North 1208134 – East 863136, and North 1208138
58 EPN, “Environmental Management Plan for Additions to the Project Improvement of
Navigation in the San Juan de Nicaragua River,” September 2009, p. 2 (NCM, Vol. II, Annex 13).
44 D. ACTIVITIES IN THE CAÑO
2.60 On 28 August 2009, EPN submitted an application to modestly
expand the work approved in Resolution No. 038- 2008 by adding a proposal to
include the clearing by hand of vegetation and debris from the 1,560 meter length
of the Harbour Head caño to a width of 30 meters (at the mouth of the caño in
Harbour Head). Information was submitted to MARENA showing that the caño,
which had existed for decades, as demonstrated in Chapter 6, had gradually
become difficult to navigate because of the accumulation of sedimen t and organic
debris.
2.61 The application submitted by the EPN was divided in two sections:
• “Activity No. 1: Cleaning of the Caño” – that is, “a tributary of the San
Juan R iver that empties into the Harb our Head Lagoon” located from
reference coordinates North 1208638 – East 863133 to North 1209823 –
East 863450 – whose length of approximately 1,500 meters was to be
58
cleaned to a depth of 2.5 meters up to a maximum width of 30 meters; and
• “Activity No. 2: Cleaning, using a stationary cutting and suction dredge, of
a stretch of the San Juan River” located at reference coordinates North
1208439 – East 863131, North 1208134 – East 863136, and North 1208138
58 EPN, “Environmental Management Plan for Additions to the Project Improvement of
Navigation in the San Juan de Nicaragua River,” September 2009, p. 2 (NCM, Vol. II, Annex 13). 2.64 After EPN submitted its proposed Environmental Management
Plan to MARENA, along with its request for an environmental permit authorizing
64
the work , MARENA conducted site visits for assessing the environmental
65
impacts of the proposed project additions. This part of the project was also the
66
subject of environmental reviews by Nicaragua before it was authorized.
2.65 On 30 October 2009, 67MARENA, satisfied that the proposed
additional work would cause only short -term, reversible consequences to the
environment which, in any case, would be mitigated thr ough the replacement of
68
native vegetation, issued Administrative Resolution No. 038-2008-A1.
2.66 This resolution expanded the original dredging project to grant
EPN the environmental authorization for additional activities, under the specific
conditions that had been recommended in the T echnical Report, which is that the
69
caño-clearing should be conducted using only hand- held equipment , such as
shovels and buckets (see Figure(s) 2.3.).
64
Ibid. p. 2.
65See Report of Site Inspection for Proposed Project Additions Conducted 7-8 September 2009,
Technical Report on the Inspection regarding the Expansion of the Project "Improvement of the
Navigability of the San Juan River"., p. 1 (NCM, Vol. II, Annex 22); Declaration of Elsa Maria
Vivas Soto, Agrocultural Engineer, General Department of Environmental Quality of the Ministry
of the Environment and Natural Resources, 20 December 2010 (hereinafter “Vivas Declaration”),
paras. 6-13 (NCM, Vol. III, Annex 90).
66 See Affidavit of Hilda Espinoza Urbina, Director General of MARENA’s Department of
Environmental Quality, 20 December 2010, paras. 23-29 (CRM, Vol. IV, Annex 165) ; see also
Viva’s Declaration, paras. 11-13 (NCM, Vol. III, Annex 90).
67
Ministry for the Environment and Natural Resources (MARENA) Administrative Resolution
No. 038-2008-A1, 30 October 2009. (NCM, Vol. III, Annex 34). The permit was received by
EPN on 3 November 2009, as indicated by the signature visible on the bottom of the final page of
the Resolution. See ibid., Spanish Original, p. 4.
68Ministry for the Environment and Natural Resources (MARENA) Administrative Resolution
No. 038-2008-A1, 30 October 2009. (NCM, Vol. III, Annex 34).
69
Ibid.
46 2.64 After EPN submitted its proposed Environmental Management
Plan to MARENA, along with its request for an environmental permit authorizing
64
the work , MARENA conducted site visits for assessing the environmental
65
impacts of the proposed project additions. This part of the project was also the
66
subject of environmental reviews by Nicaragua before it was authorized.
2.65 On 30 October 2009, 67 MARENA, satisfied that the proposed
additional work would cause only short -term, reversible consequences to the
environment which, in any case, would be mitigated thr ough the replacement of
68
native vegetation, issued Administrative Resolution No. 038-2008-A1.
2.66 This resolution expanded the original dredging project to grant
EPN the environmental authorization for additional activities, under the specific
conditions that had been recommended in the T echnical Report, which is that the
69
caño-clearing should be conducted using only hand- held equipment , such as
shovels and buckets (see Figure(s) 2.3.).
64
Ibid. p. 2.
65See Report of Site Inspection for Proposed Project Additions Conducted 7-8 September 2009,
Technical Report on the Inspection regarding the Expansion of the Project "Improvement of the
Navigability of the San Juan River"., p. 1 (NCM, Vol. II, Annex 22); Declaration of Elsa Maria
Vivas Soto, Agrocultural Engineer, General Department of Environmental Quality of the Ministry
of the Environment and Natural Resources, 20 December 2010 (hereinafter “Vivas Declaration”),
paras. 6-13 (NCM, Vol. III, Annex 90).
66See Affidavit of Hilda Espinoza Urbina, Director General of MARENA’s Department of
Environmental Quality, 20 December 2010, paras. 23-29 (CRM, Vol. IV, Annex 165) ; see also
Viva’s Declaration, paras. 11-13 (NCM, Vol. III, Annex 90).
67
Ministry for the Environment and Natural Resources (MARENA) Administrative Resolution
No. 038-2008-A1, 30 October 2009. (NCM, Vol. III, Annex 34). The permit was received by
EPN on 3 November 2009, as indicated by the signature visible on the bottom of the final page of
the Resolution. See ibid., Spanish Original, p. 4.
68Ministry for the Environment and Natural Resources (MARENA) Administrative Resolution
No. 038-2008-A1, 30 October 2009. (NCM, Vol. III, Annex 34).
69
Ibid. 71
Figure 2.4.
Figure 2.4. Photograph of trees requiring removal from the area adjacent to the caño
2.68 Nicaraguan law stipulates that all felled trees must be replaced by a
larger number of new trees, which, as indicated at the provisional measures
hearing and in Chapter 6, has taken place; in fact more than ten times as many
72
new trees have been planted , in relation to the number felled.
2.69 The actual work of clearing the caño was fully completed in
December 2010. There has been no caño clearing activity since then. In late
November 2010, shortly before the clearing activities were completed, MARENA
sent a monitoring mission to the site to investigate whether the project was being
carried out in conformity with the conditions of the permit, and whether there
were any unexpected environmental impacts. To these questions, the mission
71
Photograph of Trees requiring removal from the area adjacent to the cañosource: site visit by
72bassador Carlos Argüello on 09 September 2010, (NCM Vol. IV Annex 137).
See Affidavit of Hilda Espinoza Urbina, Director General of MARENA’s Department of
Environmental Quality, 20 December 2010, para.31 (CRM, Vol. IV, Annex 165).
48 71
Figure 2.4.
Figure 2.4. Photograph of trees requiring removal from the area adjacent to the caño
2.68 Nicaraguan law stipulates that all felled trees must be replaced by a
larger number of new trees, which, as indicated at the provisional measures
hearing and in Chapter 6, has taken place; in fact more than ten times as many
72
new trees have been planted , in relation to the number felled.
2.69 The actual work of clearing the caño was fully completed in
December 2010. There has been no caño clearing activity since then. In late
November 2010, shortly before the clearing activities were completed, MARENA
sent a monitoring mission to the site to investigate whether the project was being
carried out in conformity with the conditions of the permit, and whether there
were any unexpected environmental impacts. To these questions, the mission
71
Photograph of Trees requiring removal from the area adjacent to the cañosource: site visit by
72bassador Carlos Argüello on 09 September 2010, (NCM Vol. IV Annex 137).
See Affidavit of Hilda Espinoza Urbina, Director General of MARENA’s Department of
Environmental Quality, 20 December 2010, para.31 (CRM, Vol. IV, Annex 165). long use and control of the caño and of the area in dispute for security and anti -
crime purposes.
50long use and control of the caño and of the area in dispute for security and anti -
crime purposes. 1. The 1858 Treaty Establishes the Sovereignty of Nicaragua over
the River San Juan de Nicaragua
(a) The 1858 Treaty of Limits and its arbitral interpretation
3.3 As Nicaragua already explained in its Counter -Memorial in the
79
case concerning the Dispute regarding Navigational and Related Rights , the
Jerez-Cañas Treaty of Limits signed on 15 April 1858, was a comprehensive
settlement of the long -standing dispute involving the boundary between the two
countries.
3.4 The discussion about the validity of the Treaty of 1858 that was
questioned by Nicaragua, led to the conclusion of the Roman- Esquivel-Cruz
Arbitral Convention of 24 December 1886, 80which submitted to the arbitration of
the President of the United States the questions relating to the validity and
interpretation of the Treaty. The question of the validity of the Treaty was
answered in the affirmative by the Arbitral Award rendered by the US President,
Grover Cleveland, on 22 March 1888 and, having established this, the Arbitrator
continued deciding on the points of doubtful interpretation that were submitted for
81
his consideration.
79
See, e.g., Counter Memorial of the Republic of Nicaragua, "Dispute Regarding Navigational
and Related Rights (Costa Rica v Nicaragua) , Volume 1, 29 May 2007, p. 47, para. 1.3.23.
80CRM, Vol. II, Annex 4.
81See paras. 3.14 – 3.19 below.
52 1. The 1858 Treaty Establishes the Sovereignty of Nicaragua over
the River San Juan de Nicaragua
(a) The 1858 Treaty of Limits and its arbitral interpretation
3.3 As Nicaragua already explained in its Counter -Memorial in the
79
case concerning the Dispute regarding Navigational and Related Rights , the
Jerez-Cañas Treaty of Limits signed on 15 April 1858, was a comprehensive
settlement of the long -standing dispute involving the boundary between the two
countries.
3.4 The discussion about the validity of the Treaty of 1858 that was
questioned by Nicaragua, led to the conclusion of the Roman- Esquivel-Cruz
Arbitral Convention of 24 December 1886, 80which submitted to the arbitration of
the President of the United States the questions relating to the validity and
interpretation of the Treaty. The question of the validity of the Treaty was
answered in the affirmative by the Arbitral Award rendered by the US President,
Grover Cleveland, on 22 March 1888 and, having established this, the Arbitrator
continued deciding on the points of doubtful interpretation that were submitted for
81
his consideration.
79
See, e.g., Counter Memorial of the Republic of Nicaragua, "Dispute Regarding Navigational
and Related Rights (Costa Rica v Nicaragua) , Volume 1, 29 May 2007, p. 47, para. 1.3.23.
80CRM, Vol. II, Annex 4.
81See paras. 3.14 – 3.19 below. transit agreements regarding the San Juan River (Article VIII) and an
obligation not to commit acts of hostility against each other (Article
IX).” 85
3.7 The main point is that the Treaty gives to Nicaragua the full
exercise of sovereignty over the entire course of the waters of the San Juan River.
Article II determines the boundary between the two countries and, at the same
time, confirms the sovereignty of Nicaragua on the San Juan River and regulates
the rights of the parties over the same.Specifically, Article II provides:
“The dividing line between the two Republics, starting from the
Northern Sea, shall begin at the end of Punta de Castilla, at the mouth
of the San Juan de Nicaragua river, and shall run along the 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.” (emphasis added)
3.8 Article VI expands on the consequences of locating the boundary
along the right bank of the river:
“The Republic of Nicaragua shall have exclusively the dominion and
sovereign jurisdiction over the waters of the San Juan River from its
origin in the Lake to its mouth in the Atlantic.” 86
3.9 This was formally acknowledged by the Court in its 2009
judgment :
“Article VI, after conferring on Nicaragua full and exclusive
sovereignty (‘exclusivamente el dominio y sumo imperio’) over the
whole of the San Juan, from its source in the lake to its mouth at the
sea, grants Costa Rica, on the section of the river which follows the
border between the two States (see paragraph 30 above), a perpetual
right (‘los derechos perpetuos’) of free navigation ‘con objetos de
85
I.C.J., Judgment, 13 July 2009, Dispute regarding Navigational and Related Rights (Costa Rica
v. Nicaragua), I.C.J. Reports 2009, p. 229, para. 19.
86Costa Rica has to acknowledge this obvious fundamental principle (see CRM, p. 41, para. 2.19).
54 transit agreements regarding the San Juan River (Article VIII) and an
obligation not to commit acts of hostility against each other (Article
IX).” 85
3.7 The main point is that the Treaty gives to Nicaragua the full
exercise of sovereignty over the entire course of the waters of the San Juan River.
Article II determines the boundary between the two countries and, at the same
time, confirms the sovereignty of Nicaragua on the San Juan River and regulates
the rights of the parties over the same.Specifically, Article II provides:
“The dividing line between the two Republics, starting from the
Northern Sea, shall begin at the end of Punta de Castilla, at the mouth
of the San Juan de Nicaragua river, and shall run along the 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.” (emphasis added)
3.8 Article VI expands on the consequences of locating the boundary
along the right bank of the river:
“The Republic of Nicaragua shall have exclusively the dominion and
sovereign jurisdiction over the waters of the San Juan River from its
origin in the Lake to its mouth in the Atlantic.”86
3.9 This was formally acknowledged by the Court in its 2009
judgment :
“Article VI, after conferring on Nicaragua full and exclusive
sovereignty (‘exclusivamente el dominio y sumo imperio’) over the
whole of the San Juan, from its source in the lake to its mouth at the
sea, grants Costa Rica, on the section of the river which follows the
border between the two States (see paragraph 30 above), a perpetual
right (‘los derechos perpetuos’) of free navigation ‘con objetos de
85
I.C.J., Judgment, 13 July 2009, Dispute regarding Navigational and Related Rights (Costa Rica
v. Nicaragua), I.C.J. Reports 2009, p. 229, para. 19.
86Costa Rica has to acknowledge this obvious fundamental principle (see CRM, p. 41, para. 2.19). 90
the bed of the San Juan belong to Nicaragua” . There can therefore be no doubt
that the San Juan indisputably is a Nicaraguan national river to which Nicaragua’s
full sovereignty applies, with the only limitations provided for in the 1858 Treaty
of Limits. In other words, the basic principle of international law which applies in
the present case is the territorial sovereignty of Nicaragua on the waters and the
bed of the river.
3.13 In other words, the decisive element is that, as Costa Rica also
recognized in the Dispute regarding Navigational and Related Rights, “the rights
and obligations of both riparian States with regard to the San Juan are specifically
regulated by international instr uments,” 91that is, the Jerez -Cañas Treaty of 1858
and the Cleveland Award.
2. The Legal Regime of the San Juan de Nicaragua established by
the 1858 Treaty
3.14 Having found that the 1858 Treaty was valid, Cleveland had to
address all “the other points of doubtful interpretation found by either of the
Parties in the Treaty…” Nicaragua communicated to Costa Rica eleven “points of
92
doubtful interpretation” that it proposed to submit to the arbitrator while Costa
90 Memorial of Costa Rica in the Dispute regarding Navigational and Related Rights (Costa Rica
v. Nicaragua), 29 Augus t 2006, p. 149, para. A4, available at http://www.icj-cij.org/docket/
files/133/15084.pdf.
91 Ibid., p. 152, para. A9.
92
Arbitration between the Republics of Costa Rica and Nicaragua in relatio n to the validity of the
treaty of 15 April 1858. Report to the arbitrator, the President of the United States, by George L.
Rives, Assistant Secretary of State, U.S. Department of State, RIAA, Vol. XXVIII, p. 193.
56 90
the bed of the San Juan belong to Nicaragua” . There can therefore be no doubt
that the San Juan indisputably is a Nicaraguan national river to which Nicaragua’s
full sovereignty applies, with the only limitations provided for in the 1858 Treaty
of Limits. In other words, the basic principle of international law which applies in
the present case is the territorial sovereignty of Nicaragua on the waters and the
bed of the river.
3.13 In other words, the decisive element is that, as Costa Rica also
recognized in the Dispute regarding Navigational and Related Rights, “the rights
and obligations of both riparian States with regard to the San Juan are specifically
regulated by international instr uments,” 91that is, the Jerez -Cañas Treaty of 1858
and the Cleveland Award.
2. The Legal Regime of the San Juan de Nicaragua established by
the 1858 Treaty
3.14 Having found that the 1858 Treaty was valid, Cleveland had to
address all “the other points of doubtful interpretation found by either of the
Parties in the Treaty…” Nicaragua communicated to Costa Rica eleven “points of
92
doubtful interpretation” that it proposed to submit to the arbitrator while Costa
90Memorial of Costa Rica in the Dispute regarding Navigational and Related Rights (Costa Rica
v. Nicaragua), 29 Augus t 2006, p. 149, para. A4, available at http://www.icj-cij.org/docket/
files/133/15084.pdf.
91Ibid., p. 152, para. A9.
92
Arbitration between the Republics of Costa Rica and Nicaragua in relatio n to the validity of the
treaty of 15 April 1858. Report to the arbitrator, the President of the United States, by George L.
Rives, Assistant Secretary of State, U.S. Department of State, RIAA, Vol. XXVIII, p. 193. rapidly and suddenly and may not always be the result of unusual
factors such as earthquakes or major storms. Examples abound of
previous channels now abandoned and banks that are now changing as
a result of gradual expansions or contractions.
Today’s boundary line must necessarily be affected in future by all
these gradual or sudden changes. But the impact in each case can only
be determined by the circumstances of the case itself, on a case- by-
case basis in accordance with such principles of international law as
may be applicable.
The proposed measurement and demarcation of the boundary line will
not have any effect on the application of those principles.
The fact that the line has been measured and demarcated will neither
increase nor decrease any legal standing that it might have had it not
been measured or demarcated.
The only effect obtained from measurement and demarcation is that
the nature and extent of future changes may be easier to determine.” 97
3.17 And the Arbitrator made things even clearer in his third Award,
dated 1898:
“Clearly, therefore, wherever a treaty rules that the bank of a river
shall be taken as a boundary, what is understood is not the temporary
bank of land that emerges during exceptional high- or low -water
stages, but the bank with the water at ordinary stage. And once
defined by treaty, it will become permanent like the surface of the soil
over which it flows. If the bank recedes the boundary line shrinks, if
the bank expands towards the river, it moves forward.” 98
And the Umpire concluded:
“Let me sum up briefly and provide a clearer understanding of the
entire question in accordance with the principles set out in my first
award, to wi t, that in the practical interpretation of the 1858 Treaty,
the San Juan river must be considered a navigable river. I therefore
rule that the exact dividing line between the jurisdictions of the two
countries is the right bank of the river, with the water at ordinary stage
and navigable by ships and general-purpose boats. At that stage, every
portion of the waters of the river is under Nicaraguan jurisdiction.
97 Second Award, p. 224 (CRM, Vol. II, Annex 10).
98 Third Award, p. 229 (CRM, Vol. II, Annex 11).
58 rapidly and suddenly and may not always be the result of unusual
factors such as earthquakes or major storms. Examples abound of
previous channels now abandoned and banks that are now changing as
a result of gradual expansions or contractions.
Today’s boundary line must necessarily be affected in future by all
these gradual or sudden changes. But the impact in each case can only
be determined by the circumstances of the case itself, on a case- by-
case basis in accordance with such principles of international law as
may be applicable.
The proposed measurement and demarcation of the boundary line will
not have any effect on the application of those principles.
The fact that the line has been measured and demarcated will neither
increase nor decrease any legal standing that it might have had it not
been measured or demarcated.
The only effect obtained from measurement and demarcation is that
the nature and extent of future changes may be easier to determine.” 97
3.17 And the Arbitrator made things even clearer in his third Award,
dated 1898:
“Clearly, therefore, wherever a treaty rules that the bank of a river
shall be taken as a boundary, what is understood is not the temporary
bank of land that emerges during exceptional high- or low -water
stages, but the bank with the water at ordinary stage. And once
defined by treaty, it will become permanent like the surface of the soil
over which it flows. If the bank recedes the boundary line shrinks, if
the bank expands towards the river, it moves forward.” 98
And the Umpire concluded:
“Let me sum up briefly and provide a clearer understanding of the
entire question in accordance with the principles set out in my first
award, to wi t, that in the practical interpretation of the 1858 Treaty,
the San Juan river must be considered a navigable river. I therefore
rule that the exact dividing line between the jurisdictions of the two
countries is the right bank of the river, with the water at ordinary stage
and navigable by ships and general-purpose boats. At that stage, every
portion of the waters of the river is under Nicaraguan jurisdiction.
97Second Award, p. 224 (CRM, Vol. II, Annex 10).
98Third Award, p. 229 (CRM, Vol. II, Annex 11). 3.20 It is therefore obvious that the 1858 Treaty, as interpreted
successively by the Cleveland and the Alexander’s awards, constitutes the
cornerstone of the whole legal regime applicable to the San Juan River and the
activities of the Parties in relation to the river. In particular, as Nicaragua will
establish in the next Chapters, it follows from the Treaty thus interpreted that,
- Nicaragua enjoys full sovereignty over the disputed area;
- consequently, it is entitled to execute works to improve navigation
on the San Juan River with a view to re-establishing the situation that
existed at the time the 1858 Treaty was concluded;
- these works include the dredging of the San Juan River; moreover,
- Nicaragua has a right to free navigation on the Colorado until the
conditions of navigability existing at the time the 1858 Treaty was
concluded are re-established;
- for its part, Costa Rica is under an obligation to respect the
sovereignty and territorial in tegrity of Nicaragua, as defined by the
1858 Treaty, and
- the only rights it enjoys on the San Juan River are those defined by
the Treaty.
B. THE LIMITED ROLE OF PRINCIPLES AND RULES OF
GENERAL INTERNATIONAL LAW
3.21 Since the 1858 Treaty of Limits applies, the fundamental applicable
principle of general international law is that of Nicaragua’s territorial sovereignty
over the bed and waters of the San Juan River, with the sole restrictions or
augmentations provided in the Treaty.
3.22 This does not mean that other norms and principles of general
international law, whether customary or included in treaties to which both
Nicaragua and Costa Rica are parties, do not apply. Indeed, relevant rules of
60 3.20 It is therefore obvious that the 1858 Treaty, as interpreted
successively by the Cleveland and the Alexander’s awards, constitutes the
cornerstone of the whole legal regime applicable to the San Juan River and the
activities of the Parties in relation to the river. In particular, as Nicaragua will
establish in the next Chapters, it follows from the Treaty thus interpreted that,
- Nicaragua enjoys full sovereignty over the disputed area;
- consequently, it is entitled to execute works to improve navigation
on the San Juan River with a view to re-establishing the situation that
existed at the time the 1858 Treaty was concluded;
- these works include the dredging of the San Juan River; moreover,
- Nicaragua has a right to free navigation on the Colorado until the
conditions of navigability existing at the time the 1858 Treaty was
concluded are re-established;
- for its part, Costa Rica is under an obligation to respect the
sovereignty and territorial in tegrity of Nicaragua, as defined by the
1858 Treaty, and
- the only rights it enjoys on the San Juan River are those defined by
the Treaty.
B. THE LIMITED ROLE OF PRINCIPLES AND RULES OF
GENERAL INTERNATIONAL LAW
3.21 Since the 1858 Treaty of Limits applies, the fundamental applicable
principle of general international law is that of Nicaragua’s territorial sovereignty
over the bed and waters of the San Juan River, with the sole restrictions or
augmentations provided in the Treaty.
3.22 This does not mean that other norms and principles of general
international law, whether customary or included in treaties to which both
Nicaragua and Costa Rica are parties, do not apply. Indeed, relevant rules of relied for this purpose on rules derived from international, universal or regional
103
custom.”
3.25 What is true fo r navigational and related rights (and obligations)
also holds true for other rights and obligations dealt with in – or resulting from –
the Treaty of Limits which must be interpreted accordingly.
3.26 In its Counter -Memorial, Costa Rica heavily relies on some
“general principles” which it interprets misleadingly. It also ignores the fact that
these “general principles” may only be applied in the context of the 1858 Treaty
and the subsequent Awards. This is the case in particular of:
- the principle of non-harmful use of territory;
- the obligation to notify and consult about works carried
out by a State on its own territory;
- the veto right Costa Rica claims on the improvement
works made by Nicaragua; or
- the obligation to conduct a proper environmental impact
assessment.
3.27 The applicability and scope of these principles in the present case
will be discussed in more detail in the following chapters of this Counter -
Memorial. However, some general considerations are in order.
(a) The principle of the non-harmful use of the territory
3.28 It is certainly true that States are under an obligation “to ensure that
activities within their jurisdiction and control respect the environment of other
103
Ibid., p. 23, para. 36.
62relied for this purpose on rules derived from international, universal or regional
103
custom.”
3.25 What is true fo r navigational and related rights (and obligations)
also holds true for other rights and obligations dealt with in – or resulting from –
the Treaty of Limits which must be interpreted accordingly.
3.26 In its Counter -Memorial, Costa Rica heavily relies on some
“general principles” which it interprets misleadingly. It also ignores the fact that
these “general principles” may only be applied in the context of the 1858 Treaty
and the subsequent Awards. This is the case in particular of:
- the principle of non-harmful use of territory;
- the obligation to notify and consult about works carried
out by a State on its own territory;
- the veto right Costa Rica claims on the improvement
works made by Nicaragua; or
- the obligation to conduct a proper environmental impact
assessment.
3.27 The applicability and scope of these principles in the present case
will be discussed in more detail in the following chapters of this Counter -
Memorial. However, some general considerations are in order.
(a) The principle of the non-harmful use of the territory
3.28 It is certainly true that States are under an obligation “to ensure that
activities within their jurisdiction and control respect the environment of other
103
Ibid., p. 23, para. 36. its obligations under the present articles. The duty of due diligence
involved however is not intended to guarantee that significant harm be
totally prevented, if it is not possible to do so. In that eventuality, the
State of origin is required, as noted above, to exer t its best possible
efforts to minimize the r109. In this sense it does not guarantee that the
harm would not occur.”
3.32 Similarly, Article 7 of the 1997 UN Watercourses Convention
instruct watercourse States, when they utilize an international watercourse in their
territories, to “take all appropriate measures to prevent the causing of significant
harm to other watercourse States.” As explained by the ILC in its commentary,
“[t]he Commission, in this article, is setting forth a process aimed at avoiding
significant harm as far as possible while reaching an equitable result in each
concrete case.” 110
3.33 However, in the present case, the modalities of application of this
general principle stems from the 1858 Treaty as interpreted by the Cleveland
Award, whose point 3(6) provides that:
The Republic of Costa Rica cannot prevent the Republic of Nicaragua
from executing at her own expense and within her own territory such
works of improvement, provided such works of improvement do not
result in the occupation or flooding or damage of Costa Rica territory,
or in the destruction or serious impairment of the navigation of the
said River or any of its branches at any point where Costa Rica is
entitled to navigate the same. -The Republic of Costa has the right to
demand indemnification for any places belonging to her on the right
bank of the River San Juan which may be occupied without her
consent and for any land on the same bank which may be flooded or
109
ILC Commentary on the Draft Articles on Prevention of Transboundary Harm from Hazardous
Activities, Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 154,
110mentary on Article 3, para. 7; see also para. 10.
ILC commentary to draft article 7 ( Yearbook of the International Law Commission, 1994,
Vol. II, Part Two, p. 103, para 1).
64 its obligations under the present articles. The duty of due diligence
involved however is not intended to guarantee that significant harm be
totally prevented, if it is not possible to do so. In that eventuality, the
State of origin is required, as noted above, to exer t its best possible
efforts to minimize the r109. In this sense it does not guarantee that the
harm would not occur.”
3.32 Similarly, Article 7 of the 1997 UN Watercourses Convention
instruct watercourse States, when they utilize an international watercourse in their
territories, to “take all appropriate measures to prevent the causing of significant
harm to other watercourse States.” As explained by the ILC in its commentary,
“[t]he Commission, in this article, is setting forth a process aimed at avoiding
significant harm as far as possible while reaching an equitable result in each
concrete case.” 110
3.33 However, in the present case, the modalities of application of this
general principle stems from the 1858 Treaty as interpreted by the Cleveland
Award, whose point 3(6) provides that:
The Republic of Costa Rica cannot prevent the Republic of Nicaragua
from executing at her own expense and within her own territory such
works of improvement, provided such works of improvement do not
result in the occupation or flooding or damage of Costa Rica territory,
or in the destruction or serious impairment of the navigation of the
said River or any of its branches at any point where Costa Rica is
entitled to navigate the same. -The Republic of Costa has the right to
demand indemnification for any places belonging to her on the right
bank of the River San Juan which may be occupied without her
consent and for any land on the same bank which may be flooded or
109
ILC Commentary on the Draft Articles on Prevention of Transboundary Harm from Hazardous
Activities, Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 154,
110mentary on Article 3, para. 7; see also para. 10.
ILC commentary to draft article 7 ( Yearbook of the International Law Commission, 1994,
Vol. II, Part Two, p. 103, para 1). 115
But that threshold – which Costa Rica mentions when quoting this provision
and from time to time in its Memorial, but does n ot deign to comment on
anywhere – is far from being crossed in the present case.
3.37 Moreover, here again, this obligation is framed by the 1858 Treaty
of Limit, whose Article VIII – and Article VIII only – imposes on Nicaragua a
limited duty to consult Costa Rica if it envisages to make new grants for canal
purposes involving the San Juan River; for the rest (maintenance or improvement
116
of the navigation) only the limitations in Article VI apply.
3.38 A fortiori, it cannot be alleged that the 1858 Treaty provides Costa
Rica with a veto right or requires a prior agreement of the Parties concerning
works of improvement of the River. In the Lake Lanoux case, the Arbitral
Tribunal noted that:
To admit that jurisdiction in a certain field can no longer be exercised
except on the condition of, or by way of, an agreement between two
States, is to place an essential restriction on the sovereignty of a State,
and such restriction could only be admitted if there were clear and
convincing evidence. 117
If the contracting Parties had wished to establish the necessity for a
prior agreement, they would not have confined themselves to
mentioning in Article 11 [of the Treaty of Bayonne of 26 May 1866
concerning the use of the waters of Lake Lanoux] only the obligation
to give notice. The necessity for prior notice from State A to State B is
implicit if A is unable to undertake the work envisaged without the
agreement of B; it would, then, not have been necessary to mention
Activities, Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 160,
commentary on Article 8, para. 6.
115CRM, p. 200, para. 5.5.
116
117See Cleveland Award, paras. 3(10) and (11) (CRM, Vol. II, Annex 7).
Lake Lanoux Arbitration (France v. Spain) , Award, 16 November 1957, International Law
Reports, Vol. 24, p. 129, para. 11.
66 115
But that threshold – which Costa Rica mentions when quoting this provision
and from time to time in its Memorial, but does n ot deign to comment on
anywhere – is far from being crossed in the present case.
3.37 Moreover, here again, this obligation is framed by the 1858 Treaty
of Limit, whose Article VIII – and Article VIII only – imposes on Nicaragua a
limited duty to consult Costa Rica if it envisages to make new grants for canal
purposes involving the San Juan River; for the rest (maintenance or improvement
116
of the navigation) only the limitations in Article VI apply.
3.38 A fortiori, it cannot be alleged that the 1858 Treaty provides Costa
Rica with a veto right or requires a prior agreement of the Parties concerning
works of improvement of the River. In the Lake Lanoux case, the Arbitral
Tribunal noted that:
To admit that jurisdiction in a certain field can no longer be exercised
except on the condition of, or by way of, an agreement between two
States, is to place an essential restriction on the sovereignty of a State,
and such restriction could only be admitted if there were clear and
convincing evidence. 117
If the contracting Parties had wished to establish the necessity for a
prior agreement, they would not have confined themselves to
mentioning in Article 11 [of the Treaty of Bayonne of 26 May 1866
concerning the use of the waters of Lake Lanoux] only the obligation
to give notice. The necessity for prior notice from State A to State B is
implicit if A is unable to undertake the work envisaged without the
agreement of B; it would, then, not have been necessary to mention
Activities, Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 160,
commentary on Article 8, para. 6.
115CRM, p. 200, para. 5.5.
116
117See Cleveland Award, paras. 3(10) and (11) (CRM, Vol. II, Annex 7).
Lake Lanoux Arbitration (France v. Spain) , Award, 16 November 1957, International Law
Reports, Vol. 24, p. 129, para. 11. the Government of Costa Rica about the disadvantages the project
might occasion between the two Parties.” 120
(c) The absence of veto right in general international law
3.41 More generally, Costa Rica claims a veto right on the improvement
works – in particular the dredging of the River – made by Nicaragua, unless it
receives absolute guarantees that it will not endure any harm as a result of these
works. Costa Rica does not enjoy such a veto under general international law and
it is clearly excluded by the Treaty which, in any case, constitutes the law of the
Parties.
3.42 Commenting Article 1 of its Articles on Prevention of
Transboundary Harm from Hazardous Activities 121the ILC writes :
“States likely to be affected are given the right of engagement with the
State of origin in designing and, where appropriate, in the
implementation of a system of management of risk commonly shared
between or among them. The right thus envisaged in favour of the
States likely to be affected however does not give them the right to
veto the activity or project itself.”22
3.43 Moreover, as rightly noted by Dame Rosalyn Higgins, “[w]ith one
early exception [the Madrid Declaration of 1911], none of the [International Law
Association] or Institut [de Droit International] resolutions require prior
120
I.C.J., Judgment, 13 July 2009, Dispute regarding Navigational and Related Rights (Costa Rica
v. Nicaragua), I.C.J. Reports 2009, p. 251, para. 93; see also p. 252, para. 97.
121 Article 1 reads as follows: “The present articles apply to activities not prohibited by
international law which involve a risk of causing significant transboundary harm through their
physical consequences.”
122ILC Commentary on the Draft Articles on Prevention of Transboundary Harm from Hazardous
Activities, Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 150,
Commentary on Article 1, para. 6 (emphasis added).
68 the Government of Costa Rica about the disadvantages the project
might occasion between the two Parties.” 120
(c) The absence of veto right in general international law
3.41 More generally, Costa Rica claims a veto right on the improvement
works – in particular the dredging of the River – made by Nicaragua, unless it
receives absolute guarantees that it will not endure any harm as a result of these
works. Costa Rica does not enjoy such a veto under general international law and
it is clearly excluded by the Treaty which, in any case, constitutes the law of the
Parties.
3.42 Commenting Article 1 of its Articles on Prevention of
Transboundary Harm from Hazardous Activities 121 the ILC writes :
“States likely to be affected are given the right of engagement with the
State of origin in designing and, where appropriate, in the
implementation of a system of management of risk commonly shared
between or among them. The right thus envisaged in favour of the
States likely to be affected however does not give them the right to
veto the activity or project itself.”22
3.43 Moreover, as rightly noted by Dame Rosalyn Higgins, “[w]ith one
early exception [the Madrid Declaration of 1911], none of the [International Law
Association] or Institut [de Droit International] resolutions require prior
120
I.C.J., Judgment, 13 July 2009, Dispute regarding Navigational and Related Rights (Costa Rica
v. Nicaragua), I.C.J. Reports 2009, p. 251, para. 93; see also p. 252, para. 97.
121Article 1 reads as follows: “The present articles apply to activities not prohibited by
international law which involve a risk of causing significant transboundary harm through their
physical consequences.”
122ILC Commentary on the Draft Articles on Prevention of Transboundary Harm from Hazardous
Activities, Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 150,
Commentary on Article 1, para. 6 (emphasis added). “[r]ational planning constitutes an essential tool for reconciling any conflict
between the needs of development and the need to protect and improve the
environment.” 127
3.46 The Court recently had occasion in the Pulp Mills case to declare
that an EIA is a requirement under general international law that “must be
128
conducted prior to the implementation of a [given] project.” The Court thus
held:
“[I]t may now be considered a requirement under general international
law to undertake an environmental impact assessment where there is a
risk that the proposed industrial activity may have a significant
adverse impact in a transboundary context, in particular, on a shared
resource. M oreover, due diligence, and the duty of vigilance and
prevention which it implies, would not be considered to have been
exercised, if a party planning works liable to affect the régime of the
river or the quality of its waters did not undertake an environm ental
129
impact assessment on the potential effects of such works.”
3.47 Nicaragua does not challenge that, as Costa Rica correctly states,
“[a] State is obliged, as a matter of general international law, to assess the extent
to which activities within its jurisdiction will cause harm to other States,
particularly in areas or regions of shared environmental conditions” 130– that is,
conduct a transboundary EIA. Although the questions relating to the dredging of
the San Juan river are lex specialis between the Parties, Nicaragua conducted an
environment of other States or of areas beyond national control is now part of the corpus of
international law relating to the environment.”).
127Declaration of the United Nations Conference on the Human Environment, Stockholm (16 June
1282), Principle 14, quoted in CRM, para. 5.22.
Pulp Mills , para. 205. See also CRM, paras. 3.75 (discussing the requirement that “an
environmental impact assessment be undertaken prior to the instigation of any work”) and 5.18
(characterizing an EIA prior to the initiation of works as an “obligation”).
129Pulp Mills, para. 204.
130CRM, para. 5.22.
70“[r]ational planning constitutes an essential tool for reconciling any conflict
between the needs of development and the need to protect and improve the
environment.” 127
3.46 The Court recently had occasion in the Pulp Mills case to declare
that an EIA is a requirement under general international law that “must be
128
conducted prior to the implementation of a [given] project.” The Court thus
held:
“[I]t may now be considered a requirement under general international
law to undertake an environmental impact assessment where there is a
risk that the proposed industrial activity may have a significant
adverse impact in a transboundary context, in particular, on a shared
resource. M oreover, due diligence, and the duty of vigilance and
prevention which it implies, would not be considered to have been
exercised, if a party planning works liable to affect the régime of the
river or the quality of its waters did not undertake an environm ental
129
impact assessment on the potential effects of such works.”
3.47 Nicaragua does not challenge that, as Costa Rica correctly states,
“[a] State is obliged, as a matter of general international law, to assess the extent
to which activities within its jurisdiction will cause harm to other States,
particularly in areas or regions of shared environmental conditions” 13– that is,
conduct a transboundary EIA. Although the questions relating to the dredging of
the San Juan river are lex specialis between the Parties, Nicaragua conducted an
environment of other States or of areas beyond national control is now part of the corpus of
international law relating to the environment.”).
127Declaration of the United Nations Conference on the Human Environment, Stockholm (16 June
1282), Principle 14, quoted in CRM, para. 5.22.
Pulp Mills , para. 205. See also CRM, paras. 3.75 (discussing the requirement that “an
environmental impact assessment be undertaken prior to the instigation of any work”) and 5.18
(characterizing an EIA prior to the initiation of works as an “obligation”).
129Pulp Mills, para. 204.
130CRM, para. 5.22. June 1992, the Agreement over the Border Protected Areas between Nicaragua
and Costa Rica (International System of Protected Areas for Peace [SI -A-PAZ]
Agreement) of 15 December 1990 and the Convention on Biological Diversity of
21 May 1992 – but omits to deal with the relations these instruments have
together on the one hand, and with the Treaty of Limits, on the other hand.
3.50 The present Chapter is not the appropriate pla ce to refute Costa
Rica’s allegations of breaches of these instruments. 133However, some remarks on
their scope are in order.
3.51 Generally speaking, it must be noted that these instruments are
general treaties. Therefore, their relationship with the Treaty of Limits is governed
by the principle lex specialis generalibus derogant, which means that “whenever
two or more norms deal with the same subject matter, priority should be given to
134.
the norm that is more specific”
3.52 On the basis of the 1858 Treaty of Limits, Nicaragua exercises full
sovereignty over the San Juan River. As a result, and in conformity with the
express interpretation of the Treaty given by the Cleveland Award, Nicaragua
may freely make the works “necessary to prevent the Bay of San Juan del Nort e
from being obstructed; to keep the navigation of the River or Port free and
133
134See Chapter 5, infra.
Conclusions of the work of the Study Group on the Fragmentation of International Law:
Difficulties arising from the Diversification and Expansion of International LaReport of the
Commission to the General Assembly on the Work of its Fifty- Eight Session (2006) (A/61/10),
p. 408, para. 251, conclusion 5. See also P.C.I.J., Judgment, 30 August 1924, Mavrommatis
Palestine Concessions case, Series A, No. 2, p. 31.
72June 1992, the Agreement over the Border Protected Areas between Nicaragua
and Costa Rica (International System of Protected Areas for Peace [SI -A-PAZ]
Agreement) of 15 December 1990 and the Convention on Biological Diversity of
21 May 1992 – but omits to deal with the relations these instruments have
together on the one hand, and with the Treaty of Limits, on the other hand.
3.50 The present Chapter is not the appropriate pla ce to refute Costa
Rica’s allegations of breaches of these instruments. 133However, some remarks on
their scope are in order.
3.51 Generally speaking, it must be noted that these instruments are
general treaties. Therefore, their relationship with the Treaty of Limits is governed
by the principle lex specialis generalibus derogant, which means that “whenever
two or more norms deal with the same subject matter, priority should be given to
134.
the norm that is more specific”
3.52 On the basis of the 1858 Treaty of Limits, Nicaragua exercises full
sovereignty over the San Juan River. As a result, and in conformity with the
express interpretation of the Treaty given by the Cleveland Award, Nicaragua
may freely make the works “necessary to prevent the Bay of San Juan del Nort e
from being obstructed; to keep the navigation of the River or Port free and
133
134See Chapter 5, infra.
Conclusions of the work of the Study Group on the Fragmentation of International Law:
Difficulties arising from the Diversification and Expansion of International LaReport of the
Commission to the General Assembly on the Work of its Fifty- Eight Session (2006) (A/61/10),
p. 408, para. 251, conclusion 5. See also P.C.I.J., Judgment, 30 August 1924, Mavrommatis
Palestine Concessions case, Series A, No. 2, p. 31.74 CHAPTER 4
NAVIGATION ON THE SAN JUAN DE NICARAGUA RIVER
4. 1 The present Chapter will focus upon navigation on the San Juan
River and activities Nicaragua is entitled to undertake to enable and improve such
navigation. The Chapter will also examine the impact on the navigability of the
San Juan of the road being constructed by Costa Rica along the river’s right bank,
and Costa Rica’s efforts to cut Nicaragua off from access to the Caribbean.
4. 2 Despite the 1858 Treaty, the 1888 Cleveland Award, and the 2009
Judgment of this Court, Costa Rica appears to take umbrage whenever Nicaragua
asserts its by now well established sovereign rights over the River, especially in
regard to reasonable regulation and improvement of navigation. In this case, Costa
Rica seeks to halt activities by Nicaragua in its own territory intended to further
these lawful objectives.
4. 3 Thus Costa Rica complains of “Nicaragua’s Dredging Works on
the San Juan Ri ver” 136and the “Cutting of Meanders” 137of the San Juan – all
activities that take place in Nicaragua’s sovereign territory, as established by the
1858 Treaty and the Cleveland Award, and which are expressly permitted, and in
fact encouraged, if not required, by that Award. In its Submissions, Costa Rica
asks the Court to diminish Nicaragua’s freedom to restore the San Juan’s
navigability by imposing numerous qualifications and restrictions that make a
136
137CRM, Chapter III.C.
Ibid., Chapter V.D (5).
75 mockery of the Cleveland Award and of the notion of sovereignty itself. 138 In fact,
Nicaragua is only doing what a responsible sovereign State would do, and what is
contemplated by the relevant rules of international law, as the present Chapter will
show.
4. 4 As was true of the provisional measures requested by Costa R ica,
the remedies it requests in the case in chief are based on two false premises: First ,
that some of Nicaragua’s acts of which Costa Rica complains occurred in Costa
Rican territory; and second, that Nicaragua is not entitled to dredge the San Juan
de Nicaragua River, over which it has full sovereignty, so as to remove
navigational obstructions and restore access to the sea. The present Chapter will
address the second of these premises. The first premise is refuted in Chapter 6.
A. NICARAGUA’S RIGHT TO DREDGE THE RIVER TO
IMPROVE ITS NAVIGABILITY
4. 5 This section will first describe the phenomena that have resulted in
the shrinkage of the lower San Juan River, and the corresponding increase in size
of its present day principal distributary, the Colorado branch of the San Juan. It
will then recall the origins of Nicaragua’s dredging project. The section will
conclude by demonstrating that Nicaragua has the right to dredge the San Juan to
improve its navigability under the 1858 Treaty and the Cleveland Award.
138See ibid., pp. 303-305, especially Submissions 1(e), 2(b) & 2(c).
76mockery of the Cleveland Award and of the notion of sovereignty itself. 138In fact,
Nicaragua is only doing what a responsible sovereign State would do, and what is
contemplated by the relevant rules of international law, as the present Chapter will
show.
4. 4 As was true of the provisional measures requested by Costa R ica,
the remedies it requests in the case in chief are based on two false premises: First,
that some of Nicaragua’s acts of which Costa Rica complains occurred in Costa
Rican territory; and second, that Nicaragua is not entitled to dredge the San Juan
de Nicaragua River, over which it has full sovereignty, so as to remove
navigational obstructions and restore access to the sea. The present Chapter will
address the second of these premises. The first premise is refuted in Chapter 6.
A. NICARAGUA’S RIGHT TO DREDGE THE RIVER TO
IMPROVE ITS NAVIGABILITY
4. 5 This section will first describe the phenomena that have resulted in
the shrinkage of the lower San Juan River, and the corresponding increase in size
of its present day principal distributary, the Colorado branch of the San Juan. It
will then recall the origins of Nicaragua’s dredging project. The section will
conclude by demonstrating that Nicaragua has the right to dredge the San Juan to
improve its navigability under the 1858 Treaty and the Cleveland Award.
138See ibid., pp. 303-305, especially Submissions 1(e), 2(b) & 2(c). 142
flows through the Colorado branch, or distributary, of the San Juan, through
Costa Rican territory, into the Caribbean.
4. 8 There is no mystery about the process involved; it affects all
significant rivers that carry substantial loads of sediment. In simple terms, as the
rate of the river’s flow slows near its mouth, sediment that had been suspended in
the water drops to the river bed and accumulates there, e levating the bed of the
river. The river’s water, following the law of gravity, seeks out a lower course, a
steeper gradient. If it finds such a course, the water will follow it in creasingly
until only a small portion of the original flow remains in the bed of the river. This
is what has occurred in respect of the San Juan and its Colorado branch,
respectively.
143
4. 9 Illustrations of this phenomenon abound. Without constant
dredging 144 and the construction of regulatory works by the U.S. Army Corps of
Engineers, for example, the Mississippi River would have long since abandoned
its lower course – including the City of New Orleans – in favor of the steeper
gradient of the Atchafalaya Riv er. The Atchafalaya, like the Colorado, is a
142Costa Rica recognizes that the Colorado is a distributary, indeed “the largest distributary of the
San Juan”, then immediately points out that it “flows wholly within Costa Rican territory,” citing
para. 7 of the third article of the Cleveland Award. CRM, p. 103, para. 3.70. Costa Rica does not
go on to draw conclusions from this statement.
143McPhee mentions the Yellow River, the Mekong, the Indus, the Po, the Volga, the Tigris and
the Euphrates, and the Nile. John McPhee, The Control of Nature, p. 54, Farrar Strus Giroux, New
York, 1989 (hereinafter “McPhee”), available at http://www.newyorker.com/archive/
1447/02/23/1987_02_23_039_TNY_CARDS_000347146 (last visited 16 June 2012).
There are normally five dredges operating at Southwest Pass, the mouth of the Mississippi,
including the largest dredge in the fleet of the U.S. Army Corps of Engineers, the hopper dredge
Wheeler. The Wheeler “deal[s] with shoaling problems that occur during high and low water.”
See http://www.mvn.usace.army.mil/od/nav_wheeler.asp (last visited 15 June 2012).
78 142
flows through the Colorado branch, or distributary, of the San Juan, through
Costa Rican territory, into the Caribbean.
4. 8 There is no mystery about the process involved; it affects all
significant rivers that carry substantial loads of sediment. In simple terms, as the
rate of the river’s flow slows near its mouth, sediment that had been suspended in
the water drops to the river bed and accumulates there, e levating the bed of the
river. The river’s water, following the law of gravity, seeks out a lower course, a
steeper gradient. If it finds such a course, the water will follow it in creasingly
until only a small portion of the original flow remains in the bed of the river. This
is what has occurred in respect of the San Juan and its Colorado branch,
respectively.
143
4. 9 Illustrations of this phenomenon abound. Without constant
dredging 144 and the construction of regulatory works by the U.S. Army Corps of
Engineers, for example, the Mississippi River would have long since abandoned
its lower course – including the City of New Orleans – in favor of the steeper
gradient of the Atchafalaya Riv er. The Atchafalaya, like the Colorado, is a
142Costa Rica recognizes that the Colorado is a distributary, indeed “the largest distributary of the
San Juan”, then immediately points out that it “flows wholly within Costa Rican territory,” citing
para. 7 of the third article of the Cleveland Award. CRM, p. 103, para. 3.70. Costa Rica does not
go on to draw conclusions from this statement.
143McPhee mentions the Yellow River, the Mekong, the Indus, the Po, the Volga, the Tigris and
the Euphrates, and the Nile. John McPhee, The Control of Nature, p. 54, Farrar Strus Giroux, New
York, 1989 (hereinafter “McPhee”), available at http://www.newyorker.com/archive/
1447/02/23/1987_02_23_039_TNY_CARDS_000347146 (last visited 16 June 2012).
There are normally five dredges operating at Southwest Pass, the mouth of the Mississippi,
including the largest dredge in the fleet of the U.S. Army Corps of Engineers, the hopper dredge
Wheeler. The Wheeler “deal[s] with shoaling problems that occur during high and low water.”
See http://www.mvn.usace.army.mil/od/nav_wheeler.asp (last visited 15 June 2012). entirely natural processes or w ith the added industry of man. The conditions can
reach a tipping point, so that high water can begin spilling into the new channel –
the Colorado, in this case. Once that process starts, the “diversion” can occur very
quickly. This has nearly happened several times in the case of the Mississippi,
during flood events that have threatened the integrity of the Atchafalaya control
structures.148
4. 11 The capture of the San Juan by the Colorado was rapid in geologic
terms, and today remains nearly complete. A dispatch sent by the Consul of the
United States in San Juan del Norte on 26 February 1859 describes the changes
then taking place in the harbor of Greytown:
The harbor of this port has for several months past, been
filling up and the entrance to it gradually growing narrower and
shallower, until none but the lighter draft vessels can enter it. I was
told by the pilot of the port this morning that yesterday afternoon
there was but fifteen feet water at the 149th, where six months ago
the soundings showed twenty-five feet !
4. 12 This report from a United States official on the ground disproves
Costa Rica’s contention that “at least since 1850 similar results have been
determined regarding the percentages of discharges flowing through the Colorado
and San Juan rivers after the Colorado Delta, whereby something of the order of
148McPhee describes one of the most serious of these events, which occurred in 1973. Flooding
nearly destroyed the structure, which weighs some two hundred thousand tons. This would have
sent most of the flow of the Mississippi down the Atchafalaya River. McPhee, p. 26.
149Despatches from United States consuls in San Juan del Norte 1851-1906 (National Archives
Microfilm Publication T-348, roll 3), General Records of the Department of State, Record Group
59, National Archives Building, Washington D.C. (NCM, V ol. II, Annex 2).
80entirely natural processes or w ith the added industry of man. The conditions can
reach a tipping point, so that high water can begin spilling into the new channel –
the Colorado, in this case. Once that process starts, the “diversion” can occur very
quickly. This has nearly happened several times in the case of the Mississippi,
during flood events that have threatened the integrity of the Atchafalaya control
structures.148
4. 11 The capture of the San Juan by the Colorado was rapid in geologic
terms, and today remains nearly complete. A dispatch sent by the Consul of the
United States in San Juan del Norte on 26 February 1859 describes the changes
then taking place in the harbor of Greytown:
The harbor of this port has for several months past, been
filling up and the entrance to it gradually growing narrower and
shallower, until none but the lighter draft vessels can enter it. I was
told by the pilot of the port this morning that yesterday afternoon
there was but fifteen feet water at the 149th, where six months ago
the soundings showed twenty-five feet !
4. 12 This report from a United States official on the ground disproves
Costa Rica’s contention that “at least since 1850 similar results have been
determined regarding the percentages of discharges flowing through the Colorado
and San Juan rivers after the Colorado Delta, whereby something of the order of
148McPhee describes one of the most serious of these events, which occurred in 1973. Flooding
nearly destroyed the structure, which weighs some two hundred thousand tons. This would have
sent most of the flow of the Mississippi down the Atchafalaya River. McPhee, p. 26.
149Despatches from United States consuls in San Juan del Norte 1851-1906 (National Archives
Microfilm Publication T-348, roll 3), General Records of the Department of State, Record Group
59, National Archives Building, Washington D.C. (NCM, V ol. II, Annex 2). during the gold excitement of the early fifties. Here the ocean and river steamers
met and exchanged passengers and cargo.” 152
4. 15 Thus the navigability of the San Juan to its mouth was of great
significance for commerce in 1858, and had direct consequences f or the location
of the border. This is clear from Alexander’s First Award, where the arbitrator
states: “But throughout the treaty the river is treated and rega rded as an outlet of
commerce. This implies that it is to be considered as in average condition of
water, in which condit ion alone it is navigable.” 153 Indeed, Alexander observed
that:
the scheme of compromise [between the parties] stands out clear
and simple.
Costa Rica was to have as a boundary line the right or southeast
bank of the river, considered as an outlet for commerce . . . .
Nicaragua was to have her prized ‘sumo imperio’ of all the wa154s
of this same outlet for commerce, also unbroken to the sea .
4. 16 As if to punctuate the importance of communication with the sea,
Alexander further observed that the boundary line “can not follow either of them
[i.e., the Colorado or the Taura branch], for neither is an outlet for commerce, as
155
neither has a harbor at its mouth.”
4. 17 The substantial capture of the San Juan by the Colorado was noted
by a former President of Costa Rica, Mr. Cleto Gonzales Viquez. He reported that
152
First Award by the Umpire E.P. Alexander rendered on 30 September 1897 in San Juan del
153te, Nicaragua, RIAA, Vol. XXVIII, p. 219 (CRM, Vol. II, Annex 9).
Ibid., pp. 218-219.
154Ibid., p. 217.
155Ibid.
82during the gold excitement of the early fifties. Here the ocean and river steamers
met and exchanged passengers and cargo.” 152
4. 15 Thus the navigability of the San Juan to its mouth was of great
significance for commerce in 1858, and had direct consequences f or the location
of the border. This is clear from Alexander’s First Award, where the arbitrator
states: “But throughout the treaty the river is treated and rega rded as an outlet of
commerce. This implies that it is to be considered as in average condition of
water, in which condit ion alone it is navigable.” 153 Indeed, Alexander observed
that:
the scheme of compromise [between the parties] stands out clear
and simple.
Costa Rica was to have as a boundary line the right or southeast
bank of the river, considered as an outlet for commerce . . . .
Nicaragua was to have her prized ‘sumo imperio’ of all the wa154s
of this same outlet for commerce, also unbroken to the sea .
4. 16 As if to punctuate the importance of communication with the sea,
Alexander further observed that the boundary line “can not follow either of them
[i.e., the Colorado or the Taura branch], for neither is an outlet for commerce, as
155
neither has a harbor at its mouth.”
4. 17 The substantial capture of the San Juan by the Colorado was noted
by a former President of Costa Rica, Mr. Cleto Gonzales Viquez. He reported that
152
First Award by the Umpire E.P. Alexander rendered on 30 September 1897 in San Juan del
153te, Nicaragua, RIAA, Vol. XXVIII, p. 219 (CRM, Vol. II, Annex 9).
Ibid., pp. 218-219.
154Ibid., p. 217.
155Ibid. 157
Figure (s) 4.1.
157See NCM, Vol. IV, Annex 119 (A), see also Annex 119 (C) containing a satellite image issued
by LAND INFO (pictures were taken between 2009-2012) of the San Juan River, with geographic-
reference information; Map of the Republic of Nicaragua, compiled by Maximiliano Sonnestern
by order of the Government, 1858 (CRM, Vol. V, Annex 168).
84 157
Figure (s) 4.1.
157See NCM, Vol. IV, Annex 119 (A), see also Annex 119 (C) containing a satellite image issued
by LAND INFO (pictures were taken between 2009-2012) of the San Juan River, with geographic-
reference information; Map of the Republic of Nicaragua, compiled by Maximiliano Sonnestern
by order of the Government, 1858 (CRM, Vol. V, Annex 168). has now bee n captured by the Colorado, and flows by that route into the
Caribbean Sea at Barra del Colorado, Costa Rica. What remains in the historic
bed of the lower San Juan is a pale shadow of the flow depicted in 1851 or in the
1858 map prepared by order of the Nicaraguan Government. It i s insufficient not
only for navigation, but also to prevent the accumulation of still more sediment,
further occluding what was once the mouth of the river and a thriving port. Yet
Costa Rica complains about Nicaragua’s efforts to slow down this process
through small-scale dredging operations.
4. 20 These complaints fly in the face not only of President Cleveland’s
award but also of the Treaty itself. As would be expected, the latter is clearly
based on the circumstances existing when it wa s concluded, on 15 Apri l 1858.
This is obvious from a number of provisions of the Treaty, not least Article II
itself, which delimits the border. This central provision begins as follows: “The
dividing line between the two Republics, starting from the Northern Sea [ i.e., the
Caribbean], shall begin at the end of Punta de Castilla, at the mouth of the San
159
Juan de Nicaragua river . . . .” . The “end of Punta de Castilla” had long since
been “swept over by the Caribbean Sea” by Alexander’s time 160and has not been
located by the Parties in the intervening years since then. The “mouth of the San
Juan de Nicaragua river” is no longer well-defined or even static. In fact, it did not
159CRM, Vol. II, Annex 1, p. 5, Art. II, at p. 9.
160“The exact spot which was the extremity of the headland of Punta de Castillo April 15, 1858,
has long been swept over by the Caribbean Sea . . . . [I]t can not now be certainly located.” First
Award by the Umpire E.P. Alexander, op. cit. supra, p. 220.
86has now bee n captured by the Colorado, and flows by that route into the
Caribbean Sea at Barra del Colorado, Costa Rica. What remains in the historic
bed of the lower San Juan is a pale shadow of the flow depicted in 1851 or in the
1858 map prepared by order of the Nicaraguan Government. It i s insufficient not
only for navigation, but also to prevent the accumulation of still more sediment,
further occluding what was once the mouth of the river and a thriving port. Yet
Costa Rica complains about Nicaragua’s efforts to slow down this process
through small-scale dredging operations.
4. 20 These complaints fly in the face not only of President Cleveland’s
award but also of the Treaty itself. As would be expected, the latter is clearly
based on the circumstances existing when it wa s concluded, on 15 Apri l 1858.
This is obvious from a number of provisions of the Treaty, not least Article II
itself, which delimits the border. This central provision begins as follows: “The
dividing line between the two Republics, starting from the Northern Sea [ i.e., the
Caribbean], shall begin at the end of Punta de Castilla, at the mouth of the San
159
Juan de Nicaragua river . . . .” . The “end of Punta de Castilla” had long since
been “swept over by the Caribbean Sea” by Alexander’s time 160and has not been
located by the Parties in the intervening years since then. The “mouth of the San
Juan de Nicaragua river” is no longer well-defined or even static. In fact, it did not
159CRM, Vol. II, Annex 1, p. 5, Art. II, at p. 9.
160“The exact spot which was the extremity of the headland of Punta de Castillo April 15, 1858,
has long been swept over by the Caribbean Sea . . . . [I]t can not now be certainly located.” First
Award by the Umpire E.P. Alexander, op. cit. supra, p. 220. the navigation of the San Juan River be expedit ed in all of its extension, for the
164
primordial benefit of the inhabitants of the zone.”
4. 23 One result of the major shift in the flow of the San Juan from its
historic outlet, at what was then the port of San Juan del Norte, to the Colorado
distributary is that while the San Juan is no longer navigable to the sea by craft of
any appreciable size, and is not navigable to the sea by any craft for much of the
165
year, the Colorado is easily navigable to the sea year -round by most vessels –
except those of Nicaragua.
4. 24 Costa Rica has militarized the point at which the Colorado
166
distributary takes off from the main stem of the San Juan, and has placed police
posts at the mouth of Rio Colorado and at the mouth of the San Carlos and
Sarapiquí rivers, 167to prevent Nicaragua from using the Colorado as a transit
route to the sea. The paradoxical result is that Costa Rican tourist boats may
navigate up the Colorado and into the San Juan, 168but no Nicaraguan vessels of
any kind may navigate down the Colorado to the sea, because Costa Rica prevents
164Note from the Minister of Foreign Affairs and Worship of Costa Rica to the Minister of Foreign
Affairs of Nicaragua, Ref: DM -187-06, 5 May 2006 (CRM, Vol. III, Annex 43). See also CRM,
165103, para. 3.71.
See, e.g., Affidavit of Juan Francisco Gutiérrez Espinoza (M ilitary) (NCM, Vol. III, Annex 85)
& Affidavit of Manuel Salvador Mora Ortiz (Military) (NCM, Vol. III, Annex 86), describing the
difficulty of navigating even in small craft in the area of the mouth of the river.
166 El Nuevo Diario, Nicaragua "Encourages Costa Ricans to Join the military reserves on the
anniversary of the abolition of the Costa Rican army ", 1 December 2010 (NCM,Vol III, Annex 92
(2)).
167During the Provisional Measures hearings the Agent of Nicaragua described this situation as
follows: “Costa Rica has cut off the possibility of any Nicaraguan vessels entering the Colorado . .
. . They are installing chains and other mechanisms to impede any attempts of navigation by
168araguan vessels.” CR 1011/2, 11 January 2011, pp. 9-10, para. 9 (Argüello Gómez).
See the Court’s judgment in the case concerning the Dispute regarding Navigational and
Related Rights (Costa Rica v. Nicaragua), I.C.J. Reports 2009, p. 213, at p. 269, para. 156.
88the navigation of the San Juan River be expedit ed in all of its extension, for the
164
primordial benefit of the inhabitants of the zone.”
4. 23 One result of the major shift in the flow of the San Juan from its
historic outlet, at what was then the port of San Juan del Norte, to the Colorado
distributary is that while the San Juan is no longer navigable to the sea by craft of
any appreciable size, and is not navigable to the sea by any craft for much of the
165
year, the Colorado is easily navigable to the sea year -round by most vessels –
except those of Nicaragua.
4. 24 Costa Rica has militarized the point at which the Colorado
166
distributary takes off from the main stem of the San Juan, and has placed police
posts at the mouth of Rio Colorado and at the mouth of the San Carlos and
Sarapiquí rivers, 167 to prevent Nicaragua from using the Colorado as a transit
route to the sea. The paradoxical result is that Costa Rican tourist boats may
navigate up the Colorado and into the San Juan, 168but no Nicaraguan vessels of
any kind may navigate down the Colorado to the sea, because Costa Rica prevents
164Note from the Minister of Foreign Affairs and Worship of Costa Rica to the Minister of Foreign
Affairs of Nicaragua, Ref: DM -187-06, 5 May 2006 (CRM, Vol. III, Annex 43). See also CRM,
165103, para. 3.71.
See, e.g., Affidavit of Juan Francisco Gutiérrez Espinoza (M ilitary) (NCM, Vol. III, Annex 85)
& Affidavit of Manuel Salvador Mora Ortiz (Military) (NCM, Vol. III, Annex 86), describing the
difficulty of navigating even in small craft in the area of the mouth of the river.
166 El Nuevo Diario, Nicaragua "Encourages Costa Ricans to Join the military reserves on the
anniversary of the abolition of the Costa Rican army ", 1 December 2010 (NCM,Vol III, Annex 92
(2)).
167During the Provisional Measures hearings the Agent of Nicaragua described this situation as
follows: “Costa Rica has cut off the possibility of any Nicaraguan vessels entering the Colorado . .
. . They are installing chains and other mechanisms to impede any attempts of navigation by
168araguan vessels.” CR 1011/2, 11 January 2011, pp. 9-10, para. 9 (Argüello Gómez).
See the Court’s judgment in the case concerning the Dispute regarding Navigational and
Related Rights (Costa Rica v. Nicaragua), I.C.J. Reports 2009, p. 213, at p. 269, para. 156. 170
navigation by ships. Further legislation was adopted in 1924 and 1925
concerning the improvement of inland navigation a long the eastern coast. The
1925 law (Law No. 69 of 6 February 1925) provided for a study of the possibility
of connecting the Northern Zone and the Tortuguero Plains with a port at any
point along the coast from the Colorado River to Moín, some 110 kilometers to
171
the south. Engineer W. Sprung, who conducted the study, noted the advantages
of Moín as a natural port. 172In 1961, its Public Works Ministry put forward the
“Preliminary Canals Project for the Atlantic Lagoon” based on a 1960 proposal by
Consultécnica, Ltd. . The proposed canal was to connect Moín with Barra de
Colorado through a navigable waterway 112 kilometers long. In a 1965 letter, the
Costa Rican Minister of Transport, Ricardo Echandi Z., refers to a program of
canalization, “in other words the opening of channels for the inland waters of the
Mohín [Moín] Bay and San Juan River, to resolve in part the demand for export
173
and import . . . .” . Costa Rican Decree No. 3729 of 3 May 1974 declared the
inauguration of a system of navi gation in a 112 kilometer -long system of natural
and artificial canals between Moín and Barra de Colorado, including five different
terminals. Based on this information, INETER developed a map showing this
navigation system, which appears at Annex 130. Finally, the Costa Rican agency
JAPDEVA has invested in the maintenance of the northern canals, due to the large
170
171Ibid.
172Ibid., p 2.
Ibid.
173Letter from Ricardo Echandi Z., Minister of Transport, to the Manager of the Institute of Lands
and Colonies, San José, 11 February 1965 (NCM, Vol. III, Annex 37).
90 170
navigation by ships. Further legislation was adopted in 1924 and 1925
concerning the improvement of inland navigation a long the eastern coast. The
1925 law (Law No. 69 of 6 February 1925) provided for a study of the possibility
of connecting the Northern Zone and the Tortuguero Plains with a port at any
point along the coast from the Colorado River to Moín, some 110 kilometers to
171
the south. Engineer W. Sprung, who conducted the study, noted the advantages
of Moín as a natural port. 172 In 1961, its Public Works Ministry put forward the
“Preliminary Canals Project for the Atlantic Lagoon” based on a 1960 proposal by
Consultécnica, Ltd. . The proposed canal was to connect Moín with Barra de
Colorado through a navigable waterway 112 kilometers long. In a 1965 letter, the
Costa Rican Minister of Transport, Ricardo Echandi Z., refers to a program of
canalization, “in other words the opening of channels for the inland waters of the
Mohín [Moín] Bay and San Juan River, to resolve in part the demand for export
173
and import . . . .” . Costa Rican Decree No. 3729 of 3 May 1974 declared the
inauguration of a system of navi gation in a 112 kilometer -long system of natural
and artificial canals between Moín and Barra de Colorado, including five different
terminals. Based on this information, INETER developed a map showing this
navigation system, which appears at Annex 130. Finally, the Costa Rican agency
JAPDEVA has invested in the maintenance of the northern canals, due to the large
170
171Ibid.
172Ibid., p 2.
Ibid.
173Letter from Ricardo Echandi Z., Minister of Transport, to the Manager of the Institute of Lands
and Colonies, San José, 11 February 1965 (NCM, Vol. III, Annex 37). Costa Rican territory. The uncontrolled deforestation is clearly observable from
an excerpt of the satellite image presented in Figure 4.2.
177
Figure 4.2.
Figure 4.2. Excerpt of Satellite image issued by LAND INFO
2. The Origins of Nicaragua’s Dredging Project
4. 28 For its part, Nicaragua determined that in light of the situation
described above, action was necessary to improve navigation on the lower San
Juan. 178 The government agency responsible for river transportation and ports, the
Empresa Portuaria Nacional de Nicaragua (“EPN”), began planning the dredging
177See Land Info Image of River (C) (pictures were taken between 2009 -2012) of the San Juan
178er, with geographic-reference information (NCM, Vol. IV, Annex 119 (C)).
Letter from Mr. Norman Caldera Cardenal, Former Minister of Foreign Affairs of Nicaragua to
Mr. Alejandro Fiallos, Executive President of the National Ports Company, Reference
MRE/DM/037/01/06, 10 January 2006, p. 1 (stating that dredging the river was “a task of prime
importance and urgency”) (NCM, Vol. III, Annex 39).
92Costa Rican territory. The uncontrolled deforestation is clearly observable from
an excerpt of the satellite image presented in Figure 4.2.
177
Figure 4.2.
Figure 4.2. Excerpt of Satellite image issued by LAND INFO
2. The Origins of Nicaragua’s Dredging Project
4. 28 For its part, Nicaragua determined that in light of the situation
described above, action was necessary to improve navigation on the lower San
Juan. 178 The government agency responsible for river transportation and ports, the
Empresa Portuaria Nacional de Nicaragua (“EPN”), began planning the dredging
177See Land Info Image of River (C) (pictures were taken between 2009 -2012) of the San Juan
178er, with geographic-reference information (NCM, Vol. IV, Annex 119 (C)).
Letter from Mr. Norman Caldera Cardenal, Former Minister of Foreign Affairs of Nicaragua to
Mr. Alejandro Fiallos, Executive President of the National Ports Company, Reference
MRE/DM/037/01/06, 10 January 2006, p. 1 (stating that dredging the river was “a task of prime
importance and urgency”) (NCM, Vol. III, Annex 39). revised EIS in September of 2006 together with detailed technical annexes. 184
This, too, was found wanting, resulting in further revisions by EPN. 185
4. 30 The final EIS was subjected to further technical review by the
expert team, which ultimately found that the project would cause no significant,
186
irreversible impacts on the environment. On the basis of the experts’ findings,
MARENA issued the permit for the project to proceed in December 2008. 187
Among MARENA’s findings was that there was “convincing evidence in [the]
Environmental Impact Study and supporting documentation . . . that the dredging
of the San Juan River would not significantly affect the flow of the Colorado
River in Costa Rica, which would be reduced by a few percentage points at most,
and even less in the rainy season . . . [and] would not harm the navigability of the
Colorado River.” 188The permit entered into force upon EPN’s signature of the
189 190
same on 9 July 2009. The cleaning work began on 18 October 2010.
184
Environmental Impact Study for Improving Navigation on the San Juan de Nicaragua Rive r
(Excerpts), September 2006. (hereinafter “Environmental Impact Study”) (NCM, Vol. II, Annex
7); see also Project Design Study (Excerpts) September 2006 (hereinafter “Project Design Study”)
(NCM, Vol. II, Annex 8).
185 See Affidavit of Hilda Espinoza Urbina, Director General of MARENA’s Department of
186ironmental Quality, 20 December 2010, para. 17 (CRM, Vol. IV, Annex 165).
See Technical Opinion, Environmental Impact Study for the Project “Improvement of
Navigation on t he San Juan de Nicaragua River,” 28 November 2008 (hereafter “Technical
Opinion”) (NCM, Vol. II, Annex 12).
187Administrative Resolution No. 038-2008, 22 December 2008 (NCM, Vol. III, Annex 33).
188
Affidavit of Hilda Espinoza Urbina, Director General of MA RENA’s Department of
Environmental Quality, 20 December 2010, para. 20(f) (CRM, Vol. IV, Annex 165).
Ms. Espinoza is the Environment Ministry official who signed the formal resolution granting the
permit to proceed with the dredging project.
189Administrative Resolution No. 038 -2008, 22 December 2008, p. 1, para. 1 (NCM, Vol. III,
Annex 33).
190
CRM, p. 102, para. 3.70.
94revised EIS in September of 2006 together with detailed technical annexes. 184
This, too, was found wanting, resulting in further revisions by EPN. 185
4. 30 The final EIS was subjected to further technical review by the
expert team, which ultimately found that the project would cause no significant,
186
irreversible impacts on the environment. On the basis of the experts’ findings,
MARENA issued the permit for the project to proceed in December 2008. 187
Among MARENA’s findings was that there was “convincing evidence in [the]
Environmental Impact Study and supporting documentation . . . that the dredging
of the San Juan River would not significantly affect the flow of the Colorado
River in Costa Rica, which would be reduced by a few percentage points at most,
and even less in the rainy season . . . [and] would not harm the navigability of the
Colorado River.” 188 The permit entered into force upon EPN’s signature of the
189 190
same on 9 July 2009. The cleaning work began on 18 October 2010.
184
Environmental Impact Study for Improving Navigation on the San Juan de Nicaragua Rive r
(Excerpts), September 2006. (hereinafter “Environmental Impact Study”) (NCM, Vol. II, Annex
7); see also Project Design Study (Excerpts) September 2006 (hereinafter “Project Design Study”)
(NCM, Vol. II, Annex 8).
185See Affidavit of Hilda Espinoza Urbina, Director General of MARENA’s Department of
186ironmental Quality, 20 December 2010, para. 17 (CRM, Vol. IV, Annex 165).
See Technical Opinion, Environmental Impact Study for the Project “Improvement of
Navigation on t he San Juan de Nicaragua River,” 28 November 2008 (hereafter “Technical
Opinion”) (NCM, Vol. II, Annex 12).
187Administrative Resolution No. 038-2008, 22 December 2008 (NCM, Vol. III, Annex 33).
188
Affidavit of Hilda Espinoza Urbina, Director General of MA RENA’s Department of
Environmental Quality, 20 December 2010, para. 20(f) (CRM, Vol. IV, Annex 165).
Ms. Espinoza is the Environment Ministry official who signed the formal resolution granting the
permit to proceed with the dredging project.
189Administrative Resolution No. 038 -2008, 22 December 2008, p. 1, para. 1 (NCM, Vol. III,
Annex 33).
190
CRM, p. 102, para. 3.70. will be shown below, this right is by no means limited to reduction of the volume
of the Colorado by 12%, since as shown in the previous section, Nicaragua has the
right under the 1858 Treaty and the Cleveland Award to restore the flow in the
lower San Juan, to the situation that prevailed in 1858 whe n the Treaty was
concluded. That is, Nicaragua has the right to restore navigation into and out of
the San Juan River by ocean-going vessels.
3. Nicaragua’s Right To Dredge
4. 34 The need for Nicaragua to dredge the stretch of the San Juan
between the Colorado and the sea has been shown above and in Chapter 2.
Nicaragua also has the right to undertake such dredging.
4. 35 Nicaragua’s right to dredge the San Juan River is an aspect of its
sovereignty over that watercourse, which is confirmed in both the 1858 Treaty 195
196
and the 1888 Cleveland Award. As the Court noted in the Navigational and
Related Rights Case, Article 6 of the Treaty provides in part that: “The Republic
of Nicaragua shall have the exclusive dominion and sovereignty [ exclusivamente
el dominio y sumo imperio] over the waters of the River San Juan from their issue
197
out of the lake to their discharge into the Atlantic Ocean.” While most of the
“waters of the River San Juan” today “discharge into the Atlantic Ocean” through
the Colorado distributary of the San Juan, Nicaragua does not claim sovereignty
195Cleveland Award, (CRM, Vol. II, Annex 7)..
196Cleveland Award, Third Art., paras. 4 & 6 (CRM, Vol. II, Annex 7).
197The Court referred to this authority as Nicaragua’s “dominion and sovereign jurisdiction” in the
Navigational and Related Rights Case, Judgment of 13 July 2009, para. 19.
96will be shown below, this right is by no means limited to reduction of the volume
of the Colorado by 12%, since as shown in the previous section, Nicaragua has the
right under the 1858 Treaty and the Cleveland Award to restore the flow in the
lower San Juan, to the situation that prevailed in 1858 whe n the Treaty was
concluded. That is, Nicaragua has the right to restore navigation into and out of
the San Juan River by ocean-going vessels.
3. Nicaragua’s Right To Dredge
4. 34 The need for Nicaragua to dredge the stretch of the San Juan
between the Colorado and the sea has been shown above and in Chapter 2.
Nicaragua also has the right to undertake such dredging.
4. 35 Nicaragua’s right to dredge the San Juan River is an aspect of its
sovereignty over that watercourse, which is confirmed in both the 1858 Treaty 195
196
and the 1888 Cleveland Award. As the Court noted in the Navigational and
Related Rights Case, Article 6 of the Treaty provides in part that: “The Republic
of Nicaragua shall have the exclusive dominion and sovereignty [ exclusivamente
el dominio y sumo imperio] over the waters of the River San Juan from their issue
197
out of the lake to their discharge into the Atlantic Ocean.” While most of the
“waters of the River San Juan” today “discharge into the Atlantic Ocean” through
the Colorado distributary of the San Juan, Nicaragua does not claim sovereignty
195Cleveland Award, (CRM, Vol. II, Annex 7)..
196Cleveland Award, Third Art., paras. 4 & 6 (CRM, Vol. II, Annex 7).
197The Court referred to this authority as Nicaragua’s “dominion and sovereign jurisdiction” in the
Navigational and Related Rights Case, Judgment of 13 July 2009, para. 19. navigation of the river and port free and unembarrassed, and to
improve it for the common benefit? If so,
5. In what proportion must Costa Rica contribute? In case she has
to contribute nothing –
6. Can Costa Rica prevent Nicaragua from executing, at her own
expense, the works of improvement? Or, shall she have any right to
demand indemnification for the places belonging to her on the
right bank, which may be necessary to occupy, or for the lands on
the same bank which may be flooded or damaged in any other way
in consequence of the said works? 199
4. 38 In answer to questions put by Nicaragua, President Cleveland states
as follows in the Third Article of his Award:
4. The Republic of Costa Rica is not bound to concur with the
Republic of Nicaragu a in the expenses necessary to prevent the
Bay of San Juan del Norte from being obstructed; to keep the
navigation of the River or Port free and unembarrassed, or to
improve it for the common benefit.
5. The Republic of Costa Rica is not bound to contribute any
proportion of the expenses that may be incurred by the Republic of
Nicaragua for any of the purposes above mentioned.
6. The Republic of Costa Rica cannot prevent the Republic of
Nicaragua from executing at her own expense and within her own
territory such works of improvement, provided such works of
improvement do not result in the occupation or flooding or damage
of Costa Rica territory, or in the destruction or serious impairment
of the navigation of the said River or any of its branches at any
point where Costa Rica is entitled to navigate the same. The
Republic of Costa Rica has the right to demand indemnification for
any places belonging to her on the right bank of the River San Juan
which may be occupied without her consent, and for any land s on
the same bank which may be flooded or damaged in any other way
in consequence of works of improvement. 200
4. 39 Thus President Cleveland’s award recognizes Nicaragua’s right to
execute works of improvement designed to “prevent the Bay of San Juan del
199Ibid., pp. 36-37.
200Cleveland Award, Third Art., paras. 4-6 (CRM, Vol. II, Annex 7).
98 navigation of the river and port free and unembarrassed, and to
improve it for the common benefit? If so,
5. In what proportion must Costa Rica contribute? In case she has
to contribute nothing –
6. Can Costa Rica prevent Nicaragua from executing, at her own
expense, the works of improvement? Or, shall she have any right to
demand indemnification for the places belonging to her on the
right bank, which may be necessary to occupy, or for the lands on
the same bank which may be flooded or damaged in any other way
in consequence of the said works? 199
4. 38 In answer to questions put by Nicaragua, President Cleveland states
as follows in the Third Article of his Award:
4. The Republic of Costa Rica is not bound to concur with the
Republic of Nicaragu a in the expenses necessary to prevent the
Bay of San Juan del Norte from being obstructed; to keep the
navigation of the River or Port free and unembarrassed, or to
improve it for the common benefit.
5. The Republic of Costa Rica is not bound to contribute any
proportion of the expenses that may be incurred by the Republic of
Nicaragua for any of the purposes above mentioned.
6. The Republic of Costa Rica cannot prevent the Republic of
Nicaragua from executing at her own expense and within her own
territory such works of improvement, provided such works of
improvement do not result in the occupation or flooding or damage
of Costa Rica territory, or in the destruction or serious impairment
of the navigation of the said River or any of its branches at any
point where Costa Rica is entitled to navigate the same. The
Republic of Costa Rica has the right to demand indemnification for
any places belonging to her on the right bank of the River San Juan
which may be occupied without her consent, and for any land s on
the same bank which may be flooded or damaged in any other way
in consequence of works of improvement. 200
4. 39 Thus President Cleveland’s award recognizes Nicaragua’s right to
execute works of improvement designed to “prevent the Bay of San Juan del
199Ibid., pp. 36-37.
200Cleveland Award, Third Art., paras. 4-6 (CRM, Vol. II, Annex 7). 4. 41 The import of President Cleveland’s answers could not be clearer.
Dredging being the principal means of “keep[ing] the navigation of the River . . .
free and unembarrassed,” the President’s answers plainly recognize Nicaragua’s
right to dredge the San Juan in order to restore the navigability of its lower
reaches. Moreover, President Cleveland does not say that these “works of
improvement” may not aff ect Costa Rica, even adversely. He says only that
Nicaragua may execute such works provided they do not result in the “destruction
or serious impairment of th e navigation of” the San Juan. Nicaragua’s p resent
dredging program will not impair but rather restore partially the navigation of the
San Juan and by its dimensions is incapable of producing effects that would come
anywhere near “destruction or serious impairment of the navigation of” the
Colorado, as Costa Rica’s own Foreign Minister has recognized. 204
4. 42 Indeed, it is difficult to see how even a complete reversal of the
present flow regime would result in effects such as those refer red to by President
Cleveland. His knowledge that in 1860 a change in the flow regime occurred,
producing a division of flow as between the lower San Juan and the Colorado that
bore little relation to that in existence when the Treaty was concluded was the
reason for his emphasizing that “[t]he boundary line between the Republics of
Costa Rica and Nicaragua, on the Atlantic side, begins at the extremity of Punta
204Speech of Mr. Rene Castro Salazar, Former Minister of Foreign Affairs and Worship, before
the Environmental Commission of the Legislative Assembly, September 8, 2010. , pp. 5-6 (NCM,
Vol. II, Annex 24).
100 4. 41 The import of President Cleveland’s answers could not be clearer.
Dredging being the principal means of “keep[ing] the navigation of the River . . .
free and unembarrassed,” the President’s answers plainly recognize Nicaragua’s
right to dredge the San Juan in order to restore the navigability of its lower
reaches. Moreover, President Cleveland does not say that these “works of
improvement” may not aff ect Costa Rica, even adversely. He says only that
Nicaragua may execute such works provided they do not result in the “destruction
or serious impairment of th e navigation of” the San Juan. Nicaragua’s p resent
dredging program will not impair but rather restore partially the navigation of the
San Juan and by its dimensions is incapable of producing effects that would come
anywhere near “destruction or serious impairment of the navigation of” the
Colorado, as Costa Rica’s own Foreign Minister has recognized. 204
4. 42 Indeed, it is difficult to see how even a complete reversal of the
present flow regime would result in effects such as those refer red to by President
Cleveland. His knowledge that in 1860 a change in the flow regime occurred,
producing a division of flow as between the lower San Juan and the Colorado that
bore little relation to that in existence when the Treaty was concluded was the
reason for his emphasizing that “[t]he boundary line between the Republics of
Costa Rica and Nicaragua, on the Atlantic side, begins at the extremity of Punta
204Speech of Mr. Rene Castro Salazar, Former Minister of Foreign Affairs and Worship, before
the Environmental Commission of the Legislative Assembly, September 8, 2010. , pp. 5-6 (NCM,
Vol. II, Annex 24). to exist in general international law, and is shown to be without any basis in the
Treaty or subsequent instruments in Chapter 5. Costa Rica goes further still in its
demand that Nicaragua’s environmental impact assessments regarding the
dredging project “must also determine that there will be no impact on the current
flow of the Colorado River . . . .”209
4. 44 It is not Nicaragua’s purpose to destroy or seriously impair Costa
Rica’s navigation on the Colorado River. However, Nicaragua is firmly of the
view that her rights under the 1858 Treaty, as interpreted in the Cleveland Award,
are measured by the physical conditions that obtained as of the date the Treaty
was concluded: 15 A pril 1858. President Cleveland’s Award, informed as it was
by the thorough reports of Assistant Secretary Rives, clearly intends as much. For
example, in answer to Nicaragua’s question concerning her first point of doubtful
interpretation, President Clevel and stated: “The boundary line between the
Republics of Costa Rica and Nicaragua, on the Atlantic side, begins at the
extremity of Punta de Castilla at the mouth of the San Juan de Nicaragua River, as
they both existed on the 15 thday of April 1858.” (Emphasis added.) Nicaragua is
therefore fully entitled to proceed with the dredging of the lower San Juan with a
view to restoring the historic flow of that reach of the river, re -establishing a
harbor for seagoing vessels, and restoring a year-round outlet to the sea.
20Ibid., p. 104, para. 3.73, quoting from a Note from Costa Rica’s Minister of Foreign Affairs to
his Nicaraguan counterpart of 27 August 2009 (emphasis added) .
102to exist in general international law, and is shown to be without any basis in the
Treaty or subsequent instruments in Chapter 5. Costa Rica goes further still in its
demand that Nicaragua’s environmental impact assessments regarding the
dredging project “must also determine that there will be no impact on the current
flow of the Colorado River . . . .”209
4. 44 It is not Nicaragua’s purpose to destroy or seriously impair Costa
Rica’s navigation on the Colorado River. However, Nicaragua is firmly of the
view that her rights under the 1858 Treaty, as interpreted in the Cleveland Award,
are measured by the physical conditions that obtained as of the date the Treaty
was concluded: 15 A pril 1858. President Cleveland’s Award, informed as it was
by the thorough reports of Assistant Secretary Rives, clearly intends as much. For
example, in answer to Nicaragua’s question concerning her first point of doubtful
interpretation, President Clevel and stated: “The boundary line between the
Republics of Costa Rica and Nicaragua, on the Atlantic side, begins at the
extremity of Punta de Castilla at the mouth of the San Juan de Nicaragua River, as
they both existed on the 15 th day of April 1858.” (Emphasis added.) Nicaragua is
therefore fully entitled to proceed with the dredging of the lower San Juan with a
view to restoring the historic flow of that reach of the river, re -establishing a
harbor for seagoing vessels, and restoring a year-round outlet to the sea.
209Ibid., p. 104, para. 3.73, quoting from a Note from Costa Rica’s Minister of Foreign Affairs to
his Nicaraguan counterpart of 27 August 2009 (emphasis added) . 4. 47 The most immediate threat to the River and its environment,
however, is posed by Costa Rica’s construction of the so- called Juan Rafael Mora
212
Porras 1856 Highway, much of it in extremely close proximity to the right, or
southern, bank of the San Juan River. Specifically, Costa Rica has undertaken the
construction of its highway from a point known as Los Chiles in the west, all the
213
way to the Delta where the Colorado River splits off from the San Juan.
According to a report produced by several Costa Rican governmental agencies in
April 2012 – including the Ministry of Environment, Energy and
Telecommunications, as well as the National Conservation Area System, the
Ministry of Public Works and Transportation, the National Road Council, and the
National Risk Prevention and Emergency Response Commission – the
214
construction includes “an extension of approximately 160 kilometers,” much of
which is in an zone that “encompasses important areas committed to
environmental protection,” including wetlands, which “generally are of critical
importance as they provide ecosystem services and regulatory support that
215
underpin the management of water resources” (see Figure 4.3.).
212The name commemorates the Costa Rican invasion and occupation of Nicaraguan territory,
including the San Juan River and Lake Nicaragua, during the period when Nicaragua was hard
pressed fighting off the invasion of the American adventurer William Walker. See Chapter 2,
supra; see also Counter Memorial of the Republic of Nicaragua, “Dispute Regarding Navigational
and Related Rights (Costa Rica v Nicaragua)”, Volume I, 29 May 2007, paras 1.2.40 – 1.2.47.
213Application Instituting Proceedings , 21 December 2011, Construction of a Road in Costa Rica
along the San Juan River (Nicaragua v. Costa Rica) , para. 5.
214Costa Rican Environmental Man agement Plan for the Rafael Mora Porras Road, April 2012,
p. 5 (NCM, Vol. IV, Annex 116).
215
See CRM, p. 250, para. 5.103.
104 4. 47 The most immediate threat to the River and its environment,
however, is posed by Costa Rica’s construction of the so- called Juan Rafael Mora
212
Porras 1856 Highway, much of it in extremely close proximity to the right, or
southern, bank of the San Juan River. Specifically, Costa Rica has undertaken the
construction of its highway from a point known as Los Chiles in the west, all the
213
way to the Delta where the Colorado River splits off from the San Juan.
According to a report produced by several Costa Rican governmental agencies in
April 2012 – including the Ministry of Environment, Energy and
Telecommunications, as well as the National Conservation Area System, the
Ministry of Public Works and Transportation, the National Road Council, and the
National Risk Prevention and Emergency Response Commission – the
214
construction includes “an extension of approximately 160 kilometers,” much of
which is in an zone that “encompasses important areas committed to
environmental protection,” including wetlands, which “generally are of critical
importance as they provide ecosystem services and regulatory support that
215
underpin the management of water resources” (see Figure 4.3.).
212The name commemorates the Costa Rican invasion and occupation of Nicaraguan territory,
including the San Juan River and Lake Nicaragua, during the period when Nicaragua was hard
pressed fighting off the invasion of the American adventurer William Walker. See Chapter 2,
supra; see also Counter Memorial of the Republic of Nicaragua, “Dispute Regarding Navigational
and Related Rights (Costa Rica v Nicaragua)”, Volume I, 29 May 2007, paras 1.2.40 – 1.2.47.
213Application Instituting Proceedings , 21 December 2011, Construction of a Road in Costa Rica
along the San Juan River (Nicaragua v. Costa Rica) , para. 5.
214Costa Rican Environmental Man agement Plan for the Rafael Mora Porras Road, April 2012,
p. 5 (NCM, Vol. IV, Annex 116).
215
See CRM, p. 250, para. 5.103. leveling of land for the road bed. 218Furthermore, the felling of trees and th e
removal of topsoil and vegetation close to the bank of the San Juan River is
facilitating both erosion and runoff during rains, which are leading to the transfer
219
of even greater amounts of sediments into the River.
4. 49 The annexes to Costa Rica’s own Memorial establish these facts. In
the report prepared by the Ramsar Advisory Mission that visited Costa Rica in
November 2011 (which is discussed in detail in Chapter 5), Ramsar’s scientists
warned that “[d]eforestation of the [ Humedal Caribe Noreste] should be avoided
220
so as to prevent the erosion and reduction of aquifer recharge.” Despite this
warning, Costa Rica has deforested large swaths of territory in the course of
218
Application Instituting Proceedings, 21 December 2011, Construction of a Road in Costa Rica
along the San Juan River (Nicaragua v. Costa Rica) , para. 6.
219Ibid.; see also 2012 Van Rhee & De Vriend Supplemental Report, Chapter 3.2 (NCM, Vol. I,
Appendix 2), which draws conclusions from various documents, including INETER, Summary of
Measurement of liquid and suspended solids content during the years 2006, 2011 and 2012.
(NCM, Vol. II, Annex 16):
The main origin of the suspended sediments is sur face erosion in the catchment
area of the river. In this respect, the road construction project over a long
distance on Costa Rican territory parallel and very close to the River should be
mentioned. Over a large area, substantial vegetation has been rem oved and no
measures have been taken to keep sediment -laden surface runoff during heavy
rainfall from flowing into the river (Costa Rican Environmental Management
Plan, 2012; CFIA Report, 2012). This influx will have a notable effect on the
total sediment concentration in the river and will increase sedimentation. It is
not unlikely that the decrease in river flows measured in 2011 and 2012 are
related to this influence of the road construction (INETER, 2012).
220
Ramsar Secretariat, “Ramsar Advisory Missi on Report No. 69, North -eastern Caribbean
Wetland of International Importance ( Humedal Caribe Noreste ), Costa Rica,” 17 December 2010
(hereinafter “Ramsar Report No. 69”), in CRM, Vol. IV, Annex 147, p. 89. The version of the
report presented in Costa Rica’s annexes does not include page numbers. For this reason, citations
to the report in this Counter -Memorial refer to the page number of CRM, Vol. IV in which the
report appears.
106leveling of land for the road bed. 218 Furthermore, the felling of trees and th e
removal of topsoil and vegetation close to the bank of the San Juan River is
facilitating both erosion and runoff during rains, which are leading to the transfer
219
of even greater amounts of sediments into the River.
4. 49 The annexes to Costa Rica’s own Memorial establish these facts. In
the report prepared by the Ramsar Advisory Mission that visited Costa Rica in
November 2011 (which is discussed in detail in Chapter 5), Ramsar’s scientists
warned that “[d]eforestation of the [ Humedal Caribe Noreste] should be avoided
220
so as to prevent the erosion and reduction of aquifer recharge.” Despite this
warning, Costa Rica has deforested large swaths of territory in the course of
218
Application Instituting Proceedings, 21 December 2011, Construction of a Road in Costa Rica
along the San Juan River (Nicaragua v. Costa Rica) , para. 6.
219Ibid.; see also 2012 Van Rhee & De Vriend Supplemental Report, Chapter 3.2 (NCM, Vol. I,
Appendix 2), which draws conclusions from various documents, including INETER, Summary of
Measurement of liquid and suspended solids content during the years 2006, 2011 and 2012.
(NCM, Vol. II, Annex 16):
The main origin of the suspended sediments is sur face erosion in the catchment
area of the river. In this respect, the road construction project over a long
distance on Costa Rican territory parallel and very close to the River should be
mentioned. Over a large area, substantial vegetation has been rem oved and no
measures have been taken to keep sediment -laden surface runoff during heavy
rainfall from flowing into the river (Costa Rican Environmental Management
Plan, 2012; CFIA Report, 2012). This influx will have a notable effect on the
total sediment concentration in the river and will increase sedimentation. It is
not unlikely that the decrease in river flows measured in 2011 and 2012 are
related to this influence of the road construction (INETER, 2012).
220
Ramsar Secretariat, “Ramsar Advisory Missi on Report No. 69, North -eastern Caribbean
Wetland of International Importance ( Humedal Caribe Noreste ), Costa Rica,” 17 December 2010
(hereinafter “Ramsar Report No. 69”), in CRM, Vol. IV, Annex 147, p. 89. The version of the
report presented in Costa Rica’s annexes does not include page numbers. For this reason, citations
to the report in this Counter -Memorial refer to the page number of CRM, Vol. IV in which the
report appears. Figure(s) 4.4. Photographs showing large swaths of deforested territory
4. 50 As stated in Costa Rica’s Environmental Management Plan for the
highway, which was prepared retrospectively in April 2012 after much of the road
had already been constructed, tree removal and “forest disturbance” have been
observed in various stretches, including some in which “the road runs parallel to
223
the San Juan River.” Aware of the risk this poses, the belated Environmental
Management Plan states that “[p]lantations with native local species should be
established to protect river and brook banks, particularly in areas without any
forest cover, on the entire land strip between the road and the San Juan River.” 224
4. 51 The Ramsar personnel responsible for Report No. 69 also warned
that “[t]o maintain the current ecological conditions of the wetland, the surface
223
Costa Rican Environmental Management Plan for the Rafael Mora Porras Road, April 2012,
pp. 9-10 (NCM, Vol. IV, Annex 116). See also Association ofFederated Engineers and Architects
of Costa Rica (CFIA Report), 8 June 2012 (hereinafter “CFIA Report”), pp. 11, 17- 18, 26 (NCM,
Vol. IV, Annex 117).
224Costa Rican Environmental Management Plan for the Rafael Mora Porras Road, April 2012,
p. 19 (NCM, Vol. IV, Annex 116).
108 Figure(s) 4.4. Photographs showing large swaths of deforested territory
4. 50 As stated in Costa Rica’s Environmental Management Plan for the
highway, which was prepared retrospectively in April 2012 after much of the road
had already been constructed, tree removal and “forest disturbance” have been
observed in various stretches, including some in which “the road runs parallel to
223
the San Juan River.” Aware of the risk this poses, the belated Environmental
Management Plan states that “[p]lantations with native local species should be
established to protect river and brook banks, particularly in areas without any
forest cover, on the entire land strip between the road and the San Juan River.” 224
4. 51 The Ramsar personnel responsible for Report No. 69 also warned
that “[t]o maintain the current ecological conditions of the wetland, the surface
223
Costa Rican Environmental Management Plan for the Rafael Mora Porras Road, April 2012,
pp. 9-10 (NCM, Vol. IV, Annex 116). See also Association ofFederated Engineers and Architects
of Costa Rica (CFIA Report), 8 June 2012 (hereinafter “CFIA Report”), pp. 11, 17- 18, 26 (NCM,
Vol. IV, Annex 117).
224Costa Rican Environmental Management Plan for the Rafael Mora Porras Road, April 2012,
p. 19 (NCM, Vol. IV, Annex 116). Figure(s) 4.5. Photographs showing drastic alteration of natural surface runoff patterns and
sediment run-off into the San Juan de Nicaragua River
4. 52 As Costa Rica’s Environmental Management Plan acknowledges,
the road construction has involved “[e]arthmoving works altering the ecosystem
110 Figure(s) 4.5. Photographs showing drastic alteration of natural surface runoff patterns and
sediment run-off into the San Juan de Nicaragua River
4. 52 As Costa Rica’s Environmental Management Plan acknowledges,
the road construction has involved “[e]arthmoving works altering the ecosystem 236
“safe and stable gradients” and are “devoid of vegetation.” As a result, there is
an increased risk of “focused erosion processes” and “instability in some
slopes.” 237 This prompted the government officials responsible for the
Environmental Management Plan to insist that “[s]lopes should have safe and
stable gradients,” and that, “[i]n cases where slopes devoid of vegetation are
created, complementary slope-stabilizing measures should be taken”. 238
4. 54 The lack of such measures has already caused harm to the San Juan
River. According to Dr. Mathias Kondolf, there is evidence of “extensive
disturbance” at many sites, “creating steep eroding slopes that deliver sediment
directly to the channel of the Río San Juan.” 239 Indeed, there is photographic
evidence 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 the channel” of the San Juan. 240
4. 55 The report by the Costa Rican Association of Engineers and
Architects also concludes that construction activities may have been undertaken
too close to the San Juan River, 241 and that debris was left too close to the River.
For instance, the following image and captions appear at page 13 of the report:
236
See Costa Rican Environ mental Management Plan for the Rafael Mora Porras Road, April
2012, p. 23 (NCM, Vol. IV , Annex 116). See also CFIA Report, pp. 15- 17 (noting the existence
of high, nearly vertical slopes without protection of any kind) (NCM, Vol. IV, Annex 117).
237Costa Rican Environmental Management Plan for the Rafael Mora Porras Road , April 2012,
p. 22 (NCM, Vol. IV Annex 116).
238Ibid., p. 23.
239
240See Kondolf, Section 2.14 (NCM, Vol. I, Appendix 1.)
241Ibid.
CFIA Report, pp. 9, 13, 16, 18 & 27 (NCM, Vol. IV , Annex 117).
112 236
“safe and stable gradients” and are “devoid of vegetation.” As a result, there is
an increased risk of “focused erosion processes” and “instability in some
slopes.” 237 This prompted the government officials responsible for the
Environmental Management Plan to insist that “[s]lopes should have safe and
stable gradients,” and that, “[i]n cases where slopes devoid of vegetation are
created, complementary slope-stabilizing measures should be taken”. 238
4. 54 The lack of such measures has already caused harm to the San Juan
River. According to Dr. Mathias Kondolf, there is evidence of “extensive
disturbance” at many sites, “creating steep eroding slopes that deliver sediment
directly to the channel of the Río San Juan.” 239 Indeed, there is photographic
evidence 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 the channel” of the San Juan. 240
4. 55 The report by the Costa Rican Association of Engineers and
Architects also concludes that construction activities may have been undertaken
too close to the San Juan River, 241and that debris was left too close to the River.
For instance, the following image and captions appear at page 13 of the report:
236
See Costa Rican Environ mental Management Plan for the Rafael Mora Porras Road, April
2012, p. 23 (NCM, Vol. IV , Annex 116). See also CFIA Report, pp. 15- 17 (noting the existence
of high, nearly vertical slopes without protection of any kind) (NCM, Vol. IV, Annex 117).
237Costa Rican Environmental Management Plan for the Rafael Mora Porras Road , April 2012,
p. 22 (NCM, Vol. IV Annex 116).
238Ibid., p. 23.
239
240See Kondolf, Section 2.14 (NCM, Vol. I, Appendix 1.)
241Ibid.
CFIA Report, pp. 9, 13, 16, 18 & 27 (NCM, Vol. IV , Annex 117). preliminary studies.” Rather, Costa Rica undertook the project “without a single
plan to indicate the path that was to be opened, or what its char acteristics should
have been.” The report concludes that constructing a road in this manner
inevitably results in “increased costs, environmental problems, and a rapid
deterioration of the project.” 244
4. 58 In addition to constituting a violation of international law, as
established in Chapter 9, Costa Rica’s incompetent (lack of) planning and
unprofessional execution of the massive construction effort also involved a
conscious disregard of yet another of the recommendations made by Ramsar in
Report No. 69. In that report, the Ramsar Advisory Missions warned that “[i]t is
important to carry out rigorous environmental impact assessments for any project
or activity that might affect the hydrology and hydrodynamic s of the Caribe
Noreste Ramsar Site and the Refugio de Vida Silvestre Río San Juan Ramsar
245
Site.”
4. 59 As the Central American Court of Justice recently ruled –
unanimously – Costa Rica, in initiating its project without the prior studies and
246
analysis required not only under the relevant professional standards but also
244CFIA Report, p. 25 (NCM, Vol. IV , Annex 117). See also La Nación, “Serious errors expose
trail to risk of collapse during the rainy season,”28 May 2012 (highlighting a lack of geotechnical
245topographical information) (NCM, Vol. III, Annex 107).
246Ramsar Report No. 69, in CRM, Vol. IV, Annex 147, p. 89.
See crhoy.com, “Engineers Association: ‘Emergency Decree does not justify abse nce of
engineering principles’, 30 May 2012 in which the Executive Director of the Costa Rican
Association of Engineers and Architects is quoted as characterizing the project as not having
followed “the proper steps of engineering,” having not been “adeq uately designed and planned.”
114preliminary studies.” Rather, Costa Rica undertook the project “without a single
plan to indicate the path that was to be opened, or what its char acteristics should
have been.” The report concludes that constructing a road in this manner
inevitably results in “increased costs, environmental problems, and a rapid
deterioration of the project.” 244
4. 58 In addition to constituting a violation of international law, as
established in Chapter 9, Costa Rica’s incompetent (lack of) planning and
unprofessional execution of the massive construction effort also involved a
conscious disregard of yet another of the recommendations made by Ramsar in
Report No. 69. In that report, the Ramsar Advisory Missions warned that “[i]t is
important to carry out rigorous environmental impact assessments for any project
or activity that might affect the hydrology and hydrodynamic s of the Caribe
Noreste Ramsar Site and the Refugio de Vida Silvestre Río San Juan Ramsar
245
Site.”
4. 59 As the Central American Court of Justice recently ruled –
unanimously – Costa Rica, in initiating its project without the prior studies and
246
analysis required not only under the relevant professional standards but also
244CFIA Report, p. 25 (NCM, Vol. IV , Annex 117). See also La Nación, “Serious errors expose
trail to risk of collapse during the rainy season,”28 May 2012 (highlighting a lack of geotechnical
245topographical information) (NCM, Vol. III, Annex 107).
246Ramsar Report No. 69, in CRM, Vol. IV, Annex 147, p. 89.
See crhoy.com, “Engineers Association: ‘Emergency Decree does not justify abse nce of
engineering principles’, 30 May 2012 in which the Executive Director of the Costa Rican
Association of Engineers and Architects is quoted as characterizing the project as not having
followed “the proper steps of engineering,” having not been “adeq uately designed and planned.” Nicaragua’s dredging efforts, forcing Nicaragua to re- dredge the same stretch of
251
the River to keep up with increased sediment loads caused by Costa Rica.
4. 61 Although it is undisputed that the great majority of the water in the
San Juan River – and a great majority of the sediments present in that water –
252
originate from Costa Rica, Costa Rica insists that the sediments it supplies to
the River occur naturally. 253To this end, Costa Rica has retained Professor Colin
Thorne of Nottingham University, whose expert report was submitted as sole
support on this question in Costa Rica’s Memorial. Professor Thorne argues that,
“[w]hile deforestation and agricultural intensification [on the Costas Rican side of
the San Juan River] have elevated sediment yields locally, there is no evidence to
suggest that sediment loads in the main river have increased significantly, due to
254
anthropogenic impacts.” Professor Thorne thus concludes that “in comparison
to natural drivers of erosion such as high relief, steep slopes, erodible volcanic
soils, and extreme events (earthquakes, volcanic eruptions, hurricanes, and other
intense rainfall events), anthropogenic influences [on the sediment load of the San
Juan River] are likely to be relatively minor.” 255
4. 62 There are several problems with Professor Thorne’s analysis. 256
251
See, e.g., “Dredging Project Technical Evaluation, National Port Authority, Analysis 20123
January 2012, (hereinafter “EPN 2011 Annual Report”) p. 2 (NCM, Vol. II, Annex 17); see also
INETER, Summary of Measurement of liquid and suspended solids content during the years 2006,
2011, 2012 (NCM, Vol. II, Annex 16).).
252See CRM, pp. 248-249, para. 5.99; Thorne, pp. vi & II-14 – II-16.
253CRM, pp. 248-250, paras. 5.99-5.102.
254
255Thorne, p. vi.
256Ibid., p. II-18.
See Kondolf, Sections 2.13-2.14 (NCM, Vol. I, Appendix 1).
116Nicaragua’s dredging efforts, forcing Nicaragua to re- dredge the same stretch of
251
the River to keep up with increased sediment loads caused by Costa Rica.
4. 61 Although it is undisputed that the great majority of the water in the
San Juan River – and a great majority of the sediments present in that water –
252
originate from Costa Rica, Costa Rica insists that the sediments it supplies to
the River occur naturally. 253To this end, Costa Rica has retained Professor Colin
Thorne of Nottingham University, whose expert report was submitted as sole
support on this question in Costa Rica’s Memorial. Professor Thorne argues that,
“[w]hile deforestation and agricultural intensification [on the Costas Rican side of
the San Juan River] have elevated sediment yields locally, there is no evidence to
suggest that sediment loads in the main river have increased significantly, due to
254
anthropogenic impacts.” Professor Thorne thus concludes that “in comparison
to natural drivers of erosion such as high relief, steep slopes, erodible volcanic
soils, and extreme events (earthquakes, volcanic eruptions, hurricanes, and other
intense rainfall events), anthropogenic influences [on the sediment load of the San
Juan River] are likely to be relatively minor.” 255
4. 62 There are several problems with Professor Thorne’s analysis. 256
251
See, e.g., “Dredging Project Technical Evaluation, National Port Authority, Analysis 201123
January 2012, (hereinafter “EPN 2011 Annual Report”) p. 2 (NCM, Vol. II, Annex 17); see also
INETER, Summary of Measurement of liquid and suspended solids content during the years 2006,
2011, 2012 (NCM, Vol. II, Annex 16).).
252See CRM, pp. 248-249, para. 5.99; Thorne, pp. vi & II-14 – II-16.
253CRM, pp. 248-250, paras. 5.99-5.102.
254
255Thorne, p. vi.
256Ibid., p. II-18.
See Kondolf, Sections 2.13-2.14 (NCM, Vol. I, Appendix 1). and finalized his report in October 2011 after much of the construction had began,
his report is silent on the impact of the road. This is a striking omission. As Costa
Rica’s Environmental Management Plan and the report of its Association of
Engineers and Architects both recognize, the road is causing and will continue to
cause substantial sedimen tation in the River. The fact that Professor Thorne
ignored that significant “anthropogenic influence” renders his opinion
260
irrelevant.
4. 65 It is simply not plausible that Costa Rica’s massive construction
effort alongside 160 kilometers of the San Juan River, which was undertaken
without proper planning and adequate environmental protections, is not having a
harmful effect on the San Juan River. As Dr. Kondolf explains, be cause Costa
Rica’s road runs along the river, “sediment eroded from the land cleared for its
construction has a direct path into the river channel,” making it “a sediment
source that is well conn ected to the receiving waters. There is,” therefore “every
reason to believe that this extensive disturbance directly adjacent to the Río San
260See Kondolf, Section 2.14 (NCM, Vol. I, Appendix 1):
By the time of Professor Thorne’s site visit and overflight in July 2011, the
Costa Rican road was already well under construction. While it had not reached
the disputed area of lower Río San Juan delta (near the Caño, etc.), it is unlikely
that Professor Thorne would not have learned of such a massive disturbance
during his work in 2011. Either Professor Thorne’s Costa Rican clients did not
inform him of this disturbance, or he chose not to mention it in his report. In the
former case, it indicates that Professor Thorne was not working with complete
information….In the latter case, leaving out such a potentially important
increase in sediment supply to the river, renders the Thorne’s report’s
geomorphic analysis incomplete at best.
118and finalized his report in October 2011 after much of the construction had began,
his report is silent on the impact of the road. This is a striking omission. As Costa
Rica’s Environmental Management Plan and the report of its Association of
Engineers and Architects both recognize, the road is causing and will continue to
cause substantial sedimen tation in the River. The fact that Professor Thorne
ignored that significant “anthropogenic influence” renders his opinion
260
irrelevant.
4. 65 It is simply not plausible that Costa Rica’s massive construction
effort alongside 160 kilometers of the San Juan River, which was undertaken
without proper planning and adequate environmental protections, is not having a
harmful effect on the San Juan River. As Dr. Kondolf explains, be cause Costa
Rica’s road runs along the river, “sediment eroded from the land cleared for its
construction has a direct path into the river channel,” making it “a sediment
source that is well conn ected to the receiving waters. There is,” therefore “every
reason to believe that this extensive disturbance directly adjacent to the Río San
260See Kondolf, Section 2.14 (NCM, Vol. I, Appendix 1):
By the time of Professor Thorne’s site visit and overflight in July 2011, the
Costa Rican road was already well under construction. While it had not reached
the disputed area of lower Río San Juan delta (near the Caño, etc.), it is unlikely
that Professor Thorne would not have learned of such a massive disturbance
during his work in 2011. Either Professor Thorne’s Costa Rican clients did not
inform him of this disturbance, or he chose not to mention it in his report. In the
former case, it indicates that Professor Thorne was not working with complete
information….In the latter case, leaving out such a potentially important
increase in sediment supply to the river, renders the Thorne’s report’s
geomorphic analysis incomplete at best. 4. 67 The object and purpose of the 1858 Treaty – with respect to
navigation in the San Juan River – was to guaranty navigation from the river to
and from the A tlantic Ocean (Caribbean Sea). In his third Award, General
Alexander clarified “that in the practical interpretation of the 1858 Treaty, the San
Juan river must be considered a navigable river…with the water at ordinary stage
263
and navigable by ships and general -purpose boats.” At the time of the signing
of the Treaty Nicaragua did not have “the full possession of all her rights in the
port of San Juan”, and thus Article 5 of the Treaty provided in pertinent part as
follows:
As long as Nicaragua does not recover the full possession of
all her rights in the port of San Juan del Norte, the use and
possession of Punta de Castilla shall be common and equal
both for 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.
4. 68 This provision of the Treaty seems tailor -made for the present
situation. Nicaragua does not have, and has not had since the early 1860s, “the full
possession of all her rights in the port of San Juan del Norte” nor the possibility of
navigation from the river to the sea. There is no port, at present, and there has not
been one for more than a century. Nicaraguan vessels of any size and draught
have no access to the sea, and have not had for the same period. Today, it is only
when the San Juan’s flow is at its annual peak that even small craft are able to
263Third Award p. 224 (CRM, Vol. II, Annex 11).
120 4. 67 The object and purpose of the 1858 Treaty – with respect to
navigation in the San Juan River – was to guaranty navigation from the river to
and from the A tlantic Ocean (Caribbean Sea). In his third Award, General
Alexander clarified “that in the practical interpretation of the 1858 Treaty, the San
Juan river must be considered a navigable river…with the water at ordinary stage
263
and navigable by ships and general -purpose boats.” At the time of the signing
of the Treaty Nicaragua did not have “the full possession of all her rights in the
port of San Juan”, and thus Article 5 of the Treaty provided in pertinent part as
follows:
As long as Nicaragua does not recover the full possession of
all her rights in the port of San Juan del Norte, the use and
possession of Punta de Castilla shall be common and equal
both for 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.
4. 68 This provision of the Treaty seems tailor -made for the present
situation. Nicaragua does not have, and has not had since the early 1860s, “the full
possession of all her rights in the port of San Juan del Norte” nor the possibility of
navigation from the river to the sea. There is no port, at present, and there has not
been one for more than a century. Nicaraguan vessels of any size and draught
have no access to the sea, and have not had for the same period. Today, it is only
when the San Juan’s flow is at its annual peak that even small craft are able to
263Third Award p. 224 (CRM, Vol. II, Annex 11). Nicaraguan vessels from the Colorado that can be found in the Memorial is a bare
statement, unsupported by authority, contained in a reference to a meeting of the
OAS Permanent Council. Referring to a speech by the President of Nicaragua,
Costa Rica states that the President said he “would ask the International Court of
Justice to grant Nicaragua navigational rights on the Colorado River, a river
belonging wholly to Costa Rica and over which Nicaragua has no navigational
rights.”266There is no argument in Costa Rica’s Memorial regarding this bald
assertion that “Nicaragua has no navigational rights” on the Colorado, and no
substantiation for it is offered. This is surprising, because in making this flat
statement, Costa Rica is swimming against a strong and deep current of
international law.
4. 72 For the foregoing reasons, Costa Rica is not entitled to prevent
Nicaragua from navigating on the Colorado branch of the San Juan River.
4. 73 This Chapter has shown that a major premise of the 1858 Treaty of
Limits is the navigability of the San Juan de Nicaragua River to the sea, for the
benefit of commerce by both Nicaragua and Costa Rica. To ensure these benefits
to both Parties, the Treaty allows Nicaragua to maintain or restore the lower San
Juan to the conditions of navigability that existed when the Treaty was concluded,
on 15 April 1858. The Chapter has also demonstra ted that such a right is
recognized in the 1888 Cleveland Award.
266
CRM, p. 80, para. 3.29.
122Nicaraguan vessels from the Colorado that can be found in the Memorial is a bare
statement, unsupported by authority, contained in a reference to a meeting of the
OAS Permanent Council. Referring to a speech by the President of Nicaragua,
Costa Rica states that the President said he “would ask the International Court of
Justice to grant Nicaragua navigational rights on the Colorado River, a river
belonging wholly to Costa Rica and over which Nicaragua has no navigational
rights.”266There is no argument in Costa Rica’s Memorial regarding this bald
assertion that “Nicaragua has no navigational rights” on the Colorado, and no
substantiation for it is offered. This is surprising, because in making this flat
statement, Costa Rica is swimming against a strong and deep current of
international law.
4. 72 For the foregoing reasons, Costa Rica is not entitled to prevent
Nicaragua from navigating on the Colorado branch of the San Juan River.
4. 73 This Chapter has shown that a major premise of the 1858 Treaty of
Limits is the navigability of the San Juan de Nicaragua River to the sea, for the
benefit of commerce by both Nicaragua and Costa Rica. To ensure these benefits
to both Parties, the Treaty allows Nicaragua to maintain or restore the lower San
Juan to the conditions of navigability that existed when the Treaty was concluded,
on 15 April 1858. The Chapter has also demonstra ted that such a right is
recognized in the 1888 Cleveland Award.
266
CRM, p. 80, para. 3.29.124 CHAPTER 5
NICARAGUA HAS COMPLIED WITH ITS OBLIGATIONS
UNDER INTERNATIONAL ENVIRONMENTAL LAW
5.1 Costa Rica addresses the question of the Nicaraguan dredging
program as one exclusively regulated by general principles of international law
and, in particular, those relating to the environment. It fails to take due account
that Nicaragua’s rights to dred ge the river and the conditions under which this
may be effected are regulated first and foremost by the 1858 Treaty and the
Cleveland Award of 1888 as explained in chapter 3 above. These instruments
confer special rights to Nicaragua for the maintenance and improvement of the
navigation of the River that include, among others, Nicaragua’s right to dredge the
river without need of consultation or approval by Costa Rica. Furthermore,
Nicaragua has made clear in this Counter Memorial (e.g. Chapter 4) that the
dredging program presently in place represents a very minor exercise of its rights
to improve the navigation of the River to the level it had in 1858.
5.2 The present chapter will address Costa Rica’s allegations that
Nicaragua’s dredging program has not complied with international environmental
law. It will do so by showing that Nicaragua’s internal law coincides and in fact is
even more demanding than international environmental law, and that in
complying with its internal law, Nicaragua has also met all int ernational
requirements.
125 5.3 The analysis and rebuttal of Costa Rica’s claims on their own
merits in this Chapter, in no way means that Nicaragua is accepting – on the
international level – obligations that deprive it of its Treaty rights vis à vis Costa
Rica. With this explanation and reservation, Nicaragua will address the charges
leveled by Costa Rica against Nicaragua of not having complied with its
obligations under International Environmental Law in implementing the modest
dredging program it has put in place in place in the San Juan River. These charges
are without merit, as the present Chapter will show. Costa Rica’s allegations are
either irrelevant, as with its claims concerning notification and consultation in the
environmental impact assessment proce ss, or unfounded, as in the case of
“environmental damage” that Nicaragua is alleged to have caused.
A. INTRODUCTION
5.4 The present Chapter will show that Nicaragua has not violated its
environmental obligations in any way, as it: (B ) conducted an extensive
environmental impact assessment prior to initiating its activities; (C ) breached no
obligations of notification or consultation, whether under the Ramsar Convent ion
or otherwise; and (D) has fully complied, in and around the area i n dispute, with
what Costa Rica refers to as “the substantive environmental protection regi me”
applicable there, because (E) Nicaragua’s activities have caused no damage to
Costa Rica and pose no risk of future harm. Thus, Nicaragua’s activities, which
126 5.3 The analysis and rebuttal of Costa Rica’s claims on their own
merits in this Chapter, in no way means that Nicaragua is accepting – on the
international level – obligations that deprive it of its Treaty rights vis à vis Costa
Rica. With this explanation and reservation, Nicaragua will address the charges
leveled by Costa Rica against Nicaragua of not having complied with its
obligations under International Environmental Law in implementing the modest
dredging program it has put in place in place in the San Juan River. These charges
are without merit, as the present Chapter will show. Costa Rica’s allegations are
either irrelevant, as with its claims concerning notification and consultation in the
environmental impact assessment proce ss, or unfounded, as in the case of
“environmental damage” that Nicaragua is alleged to have caused.
A. INTRODUCTION
5.4 The present Chapter will show that Nicaragua has not violated its
environmental obligations in any way, as it: (B ) conducted an extensive
environmental impact assessment prior to initiating its activities; (C ) breached no
obligations of notification or consultation, whether under the Ramsar Convent ion
or otherwise; and (D) has fully complied, in and around the area i n dispute, with
what Costa Rica refers to as “the substantive environmental protection regi me”
applicable there, because (E) Nicaragua’s activities have caused no damage to
Costa Rica and pose no risk of future harm. Thus, Nicaragua’s activities, which Government to guarantee that right by ensuring the preservation, conservation,
and restoration of the environment and natural resources. 269
5.7 Nicaragua’s constitutional protection of the environment is
enforced through a legal framework designed to ensure responsible environmental
management, conservation of natural resources , and sustainable development. An
essential part of this legal framework is Law 217 and its revisions in Law 647.
Law 217, the General Law on the Environment and Natural Resources, was
enacted in 1996 and broadly establishes standards, mandates, and principles for
the conservation, protection, improveme nt, and restoration of Nicaragua’s
270
environment and natural resources. Included in Law 217 is the requirement that
a precautionary approach be taken in managing activities that have the potential to
impact the environment, and when there is any doubt about the impact or negative
environmental consequences of an action or omission, preventative measures must
271
be taken, even where there is no scientific evidence that harm will occur.
5.8 The Government of Nicaragua ensures compliance with Law 217
and its revisio ns through the administration of the Sistema de Evaluación de
Impacto Ambiental, or the Environmental Impact Assessment Program (“EIA
Program”), which is one of the key responsibilities of Nicaragua’s Ministry of the
Environment and Natural Resources (“MAR ENA” per its Spanish acronym), the
269Constitution of the Republic of Nicaragua, Art. 60; also Art. 102 (NCM, Vol. III, Annex
27).
270Nicaraguan Law No. 217, Art. 1 (NCM, Vol. III, Annex 29).
271Ibid., Art. 4, 3; Nicaraguan Law 647, Art. 2 (NCM, Vol. III, Annex 32).
128Government to guarantee that right by ensuring the preservation, conservation,
and restoration of the environment and natural resources. 269
5.7 Nicaragua’s constitutional protection of the environment is
enforced through a legal framework designed to ensure responsible environmental
management, conservation of natural resources , and sustainable development. An
essential part of this legal framework is Law 217 and its revisions in Law 647.
Law 217, the General Law on the Environment and Natural Resources, was
enacted in 1996 and broadly establishes standards, mandates, and principles for
the conservation, protection, improveme nt, and restoration of Nicaragua’s
270
environment and natural resources. Included in Law 217 is the requirement that
a precautionary approach be taken in managing activities that have the potential to
impact the environment, and when there is any doubt about the impact or negative
environmental consequences of an action or omission, preventative measures must
271
be taken, even where there is no scientific evidence that harm will occur.
5.8 The Government of Nicaragua ensures compliance with Law 217
and its revisio ns through the administration of the Sistema de Evaluación de
Impacto Ambiental, or the Environmental Impact Assessment Program (“EIA
Program”), which is one of the key responsibilities of Nicaragua’s Ministry of the
Environment and Natural Resources (“MAR ENA” per its Spanish acronym), the
269Constitution of the Republic of Nicaragua, Art. 60; also Art. 102 (NCM, Vol. III, Annex
27).
270Nicaraguan Law No. 217, Art. 1 (NCM, Vol. III, Annex 29).
271Ibid., Art. 4, 3; Nicaraguan Law 647, Art. 2 (NCM, Vol. III, Annex 32). environment are subjected to a review process that is calibrated to ensure that the
potential environmental impacts are identified and analyzed and that the steps
necessary to avoid unacceptable environmental consequences are implemented.
The foundational elements of any review include the following:
• The process begins when the proponent of the project sends a request
for a permit to MARENA.
• Having received the request, MARENA must conduct at least one
inspection of the site of the proposed project, although it may conduct
as many as it sees fit and may require th e project proponent to provide
whatever further information is necessary for adequate review and
analysis.274
• After the review process is complete, MARENA issues a resolution
either granting or denying the requested permit. MARENA will only
grant a permit wh en it has determined that the project will not cause
significant change to any environmental component, whether biotic,
275
abiotic, socioeconomic, cultural, or aesthetic.
• A resolution authorizing a particular project will itemize all of the
obligations of the party responsible for the project in order to prevent
276
unacceptable environmental impacts.
274Nicaraguan Decree 45-94, Art. 9 (NCM, Vol. III, Annex 28).
275Ibid., Art. 3(g).
276Nicaraguan Law 217, Art. 28 (NCM, Vol. III, Annex 29).
130environment are subjected to a review process that is calibrated to ensure that the
potential environmental impacts are identified and analyzed and that the steps
necessary to avoid unacceptable environmental consequences are implemented.
The foundational elements of any review include the following:
• The process begins when the proponent of the project sends a request
for a permit to MARENA.
• Having received the request, MARENA must conduct at least one
inspection of the site of the proposed project, although it may conduct
as many as it sees fit and may require th e project proponent to provide
whatever further information is necessary for adequate review and
analysis. 274
• After the review process is complete, MARENA issues a resolution
either granting or denying the requested permit. MARENA will only
grant a permit wh en it has determined that the project will not cause
significant change to any environmental component, whether biotic,
275
abiotic, socioeconomic, cultural, or aesthetic.
• A resolution authorizing a particular project will itemize all of the
obligations of the party responsible for the project in order to prevent
276
unacceptable environmental impacts.
274Nicaraguan Decree 45-94, Art. 9 (NCM, Vol. III, Annex 28).
275Ibid., Art. 3(g).
276Nicaraguan Law 217, Art. 28 (NCM, Vol. III, Annex 29). intra-governmental cooperation is to ensure that all aspects and
potential impacts of the project – environmental and otherwise – are
considered during the evaluation of the project. MARENA oversees
and coordinates the intra-governmental team. 279
• After a review of the preliminary information provided by the project
proponent, the intra-governmental team develops Terms of Reference
to guide the formal technical analysis of the proposed project. 280
• The proponent of the project must utilize the Terms of Reference in
preparing an Environmental Impact Study (“EIS”), which must present
the technical and scientific information necessary to identif y, predict,
evaluate, and control the environmental impacts of the proposed
281
project. The proponent must revise, augment, or clarify the EIS in
whatever way requested by the intra-governmental reviewing team. 282
• The proponent must also submit an Environmenta l Impact Document,
which must report the findings of the EIS in non- technical language
283
that is comprehensible to a layperson.
• The Environmental Impact Document must be made available to the
MARENA delegation responsible for the territory at issue and the
mayor of the municipality or municipalities where the proposed project
27Nicaraguan Decree 45-94, Art. 7 (NCM, Vol. III, Annex 28).
280Ibid., Art. 10.
281
282Ibid., Art. 3(c).
283Ibid., Art. 11.
Ibid., Art. 3(d).
132 intra-governmental cooperation is to ensure that all aspects and
potential impacts of the project – environmental and otherwise – are
considered during the evaluation of the project. MARENA oversees
and coordinates the intra-governmental team. 279
• After a review of the preliminary information provided by the project
proponent, the intra-governmental team develops Terms of Reference
to guide the formal technical analysis of the proposed project. 280
• The proponent of the project must utilize the Terms of Reference in
preparing an Environmental Impact Study (“EIS”), which must present
the technical and scientific information necessary to identif y, predict,
evaluate, and control the environmental impacts of the proposed
281
project. The proponent must revise, augment, or clarify the EIS in
whatever way requested by the intra-governmental reviewing team. 282
• The proponent must also submit an Environmenta l Impact Document,
which must report the findings of the EIS in non- technical language
283
that is comprehensible to a layperson.
• The Environmental Impact Document must be made available to the
MARENA delegation responsible for the territory at issue and the
mayor of the municipality or municipalities where the proposed project
27Nicaraguan Decree 45-94, Art. 7 (NCM, Vol. III, Annex 28).
280Ibid., Art. 10.
281
282Ibid., Art. 3(c).
283Ibid., Art. 11.
Ibid., Art. 3(d). The permit will include any environmental requirements that
MARENA deems appropriate. Such a resol ution indicates that
MARENA is satisfied with the project from an environmental
perspective, contingent on compliance with all environmental
289
obligations.
• After issuing a resolution granting a permit, MARENA retains
jurisdiction over the project to ensure that it is implemented in
accordance wi th all specified requirements. Violation of the
requirements included in the resolution is grounds for sanction,
including an order cancelling the authorization and halting the
290
project.
5.12 Like all governmental officia ls in Nicaragua, MARENA personnel
are obligated to observe the requirements detailed above.
2. MARENA’s Assessment of the Proposed Dredging Project
Prior to Authorization
5.13 Costa Rica’s assertions that Nicaragua’s environmental impact
291
assessment of the dredgin g project was somehow “inadequate” or
“incomplete” 292are not borne out by the facts. As will be demonstrated below,
Nicaragua fully assessed the proposed project, including its potential
289
290Ibid., Art. 3(g) & 18.
291Ibid., Art. 20-21.
292See CRM, pp. 300-301, para. 7.11(1)(i).
Ibid., p. 210, para. 5.25.
134 The permit will include any environmental requirements that
MARENA deems appropriate. Such a resol ution indicates that
MARENA is satisfied with the project from an environmental
perspective, contingent on compliance with all environmental
289
obligations.
• After issuing a resolution granting a permit, MARENA retains
jurisdiction over the project to ensure that it is implemented in
accordance wi th all specified requirements. Violation of the
requirements included in the resolution is grounds for sanction,
including an order cancelling the authorization and halting the
290
project.
5.12 Like all governmental officia ls in Nicaragua, MARENA personnel
are obligated to observe the requirements detailed above.
2. MARENA’s Assessment of the Proposed Dredging Project
Prior to Authorization
5.13 Costa Rica’s assertions that Nicaragua’s environmental impact
291
assessment of the dredgin g project was somehow “inadequate” or
“incomplete” 292are not borne out by the facts. As will be demonstrated below,
Nicaragua fully assessed the proposed project, including its potential
289
290Ibid., Art. 3(g) & 18.
291Ibid., Art. 20-21.
292See CRM, pp. 300-301, para. 7.11(1)(i).
Ibid., p. 210, para. 5.25. Costa Rica for their purchases, increasing dependency and the cost of
297
transactions.
5.15 Making the Lower San Juan navigable year-round would also allow
Nicaragua to benefit from the area’s ecotourism potential, including its San Juan
River Wildlife Reserve and Indio- Maíz Biological Reserve, both pristine natural
298
environments that Nicaragua has worked hard to preserve.
5.16 Indeed, since making the Lower San Juan accessible to ecotourism
is one of Nicaragua’s primary objectives, it has taken pains to ensure that the
dredging project is conducted in such a way that the natural envir onment is
protected and preserved. This is reflected in the thorough EIA that it required the
project to undergo.
(b) The Request for Environmental Authorization
5.17 In January 2006, after senior Nicaraguan government officials
visited San Juan de Nicaragua and other municipalities located along the lower
stretches of the San Juan River, Nicaragua concluded that the dredging of the
297
Letter from Mr. Norman Caldera Cardenal, Former Minister of Foreign Affair of Nicaragua to
Mr. Alejandro Fiallos, Executive President of the National Ports Company, Reference
MRE/DM/037/01/06, 10 January, 2006, p. 1 (NCM, Vol. III, Annex 39).
298In the case concerning the " Dispute Regarding Navigational and R elated Rights (Costa Rica v.
Nicaragua) the Court recognized that ".. Nicaragua, in adopting certain measures which have
been challenged, in the Court’s opinion, is pursuing the legitimate purpose of protecting the
environment", I.C.J., Judgment, 13 July 2009, Dispute Regarding Navigational and Related
Rights (Costa Rica v. Nicaragua), p..250, para.89.
136Costa Rica for their purchases, increasing dependency and the cost of
297
transactions.
5.15 Making the Lower San Juan navigable year-round would also allow
Nicaragua to benefit from the area’s ecotourism potential, including its San Juan
River Wildlife Reserve and Indio- Maíz Biological Reserve, both pristine natural
298
environments that Nicaragua has worked hard to preserve.
5.16 Indeed, since making the Lower San Juan accessible to ecotourism
is one of Nicaragua’s primary objectives, it has taken pains to ensure that the
dredging project is conducted in such a way that the natural envir onment is
protected and preserved. This is reflected in the thorough EIA that it required the
project to undergo.
(b) The Request for Environmental Authorization
5.17 In January 2006, after senior Nicaraguan government officials
visited San Juan de Nicaragua and other municipalities located along the lower
stretches of the San Juan River, Nicaragua concluded that the dredging of the
297
Letter from Mr. Norman Caldera Cardenal, Former Minister of Foreign Affair of Nicaragua to
Mr. Alejandro Fiallos, Executive President of the National Ports Company, Reference
MRE/DM/037/01/06, 10 January, 2006, p. 1 (NCM, Vol. III, Annex 39).
298In the case concerning the " Dispute Regarding Navigational and R elated Rights (Costa Rica v.
Nicaragua) the Court recognized that "..Nicaragua, in adopting certain measures which have
been challenged, in the Court’s opinion, is pursuing the legitimate purpose of protecting the
environment", I.C.J., Judgment, 13 July 2009, Dispute Regarding Navigational and Related
Rights (Costa Rica v. Nicaragua), p..250, para.89. coordinate the drafting of the Terms of Reference as soon as sufficient
information had been provided, “the Environmental Impact Study is a prerequisite
304
for the granting of an Environmental Permit.”
5.20 On 20 February 2006, representatives of EPN and MARENA met
at the Ministr y of Foreign Affairs (MINREX). At the meeting, MARENA
explained its obligations under Nicaraguan environmental laws with respect to the
305
proposed project. MARENA also provided EPN with a list of professional
environmental engineers with experience preparing environmental impact studies
306
who might be able to assist EPN in preparing the EIS.
On 20 March 2006, Director Espinoza Urbina rejected EPN’s request that MARENA provide an
estimate of the costs and time that were likely to be required for the preparation of the necessary
studies (for which EPN, not MARENA, was responsible) and guidance on factors for evaluating
the bids of technical consultants. She explained that – despite the “importance [of the project] for
the nation” – it would be inappropriate for MARENA to become “involved in matters pertaining
strictly to the investor interested in launching a project, which would make [MARENA] us both
judge and jury, which would not be healthy for proper decision -making.” Letter from Hilda
Espinoza, General Director for Environmental Quality, Ministry for the Environment and Natural
Resources to Mr. Alejandro Fiallos Navarro Executive President of National Ports Company,
Reference DGCA-HEU-C 189-03-2006, 20 March 2006 (NCM, Vol. III, Annex 45).
304
Letter from Hilda Espinoza, General Director for Environmental Quality, Ministry for the
Environment and Natural Resources to Mr. Alejandro Fiallos Navarro, Executive President of
National Ports Company, 03 February 2006 (NCM, Vol. III, Annex 41).
305See Letter Letter from Hilda Espinoza, General Director for Environmental Quality, Ministry
for the Environment and Natural Resources to Mr. Alejandro Fiallos Navarro Executive President
of National Ports Company, Reference DGCA- HEU-C 189-03-2006, 20 March 2006 (NCM, Vol.
III, Annex 45).
306Ibid.
138coordinate the drafting of the Terms of Reference as soon as sufficient
information had been provided, “the Environmental Impact Study is a prerequisite
304
for the granting of an Environmental Permit.”
5.20 On 20 February 2006, representatives of EPN and MARENA met
at the Ministr y of Foreign Affairs (MINREX). At the meeting, MARENA
explained its obligations under Nicaraguan environmental laws with respect to the
305
proposed project. MARENA also provided EPN with a list of professional
environmental engineers with experience preparing environmental impact studies
306
who might be able to assist EPN in preparing the EIS.
On 20 March 2006, Director Espinoza Urbina rejected EPN’s request that MARENA provide an
estimate of the costs and time that were likely to be required for the preparation of the necessary
studies (for which EPN, not MARENA, was responsible) and guidance on factors for evaluating
the bids of technical consultants. She explained that – despite the “importance [of the project] for
the nation” – it would be inappropriate for MARENA to become “involved in matters pertaining
strictly to the investor interested in launching a project, which would make [MARENA] us both
judge and jury, which would not be healthy for proper decision -making.” Letter from Hilda
Espinoza, General Director for Environmental Quality, Ministry for the Environment and Natural
Resources to Mr. Alejandro Fiallos Navarro Executive President of National Ports Company,
Reference DGCA-HEU-C 189-03-2006, 20 March 2006 (NCM, Vol. III, Annex 45).
304
Letter from Hilda Espinoza, General Director for Environmental Quality, Ministry for the
Environment and Natural Resources to Mr. Alejandro Fiallos Navarro, Executive President of
National Ports Company, 03 February 2006 (NCM, Vol. III, Annex 41).
305See Letter Letter from Hilda Espinoza, General Director for Environmental Quality, Ministry
for the Environment and Natural Resources to Mr. Alejandro Fiallos Navarro Executive President
of National Ports Company, Reference DGCA- HEU-C 189-03-2006, 20 March 2006 (NCM, Vol.
III, Annex 45).
306Ibid. 5.22 Ultimately, a team of seven officials from various governmental
institutions was formed to evaluate EPN’s request. This intra-governmental team,
which was overseen and coordinated by technical experts from MARENA’s
Department of Environmental Quality, included representatives and technical
experts from:
• The Executive Secretariat for the Preservation of the Southeast
Nicaraguan Biosphere;
• The Nicaraguan Institute for Territorial Studies (“INETER” per the
Spanish acronym);
• The Department for Water Transportation of the Ministry of
Transportation and Infrastructure and
314
• MARENA’s Territorial Delegation for the San Juan River.
(d) The Terms of Reference
5.23 Shortly thereafter, on 9 March 2006, MARENA transmitted to EPN
the official Terms of Reference for the dredging project. 315The Terms of
Reference explained that the proposed project was required to be reviewed in light
of all applicable legal instruments, including:
labor laws; those for the protection of geographic, environmental and
municipal spaces; quality standards, technical standards, and environmental
314See MARENA Administrative Resolution No. 038 -2008, 22 December 2008, p. 1, para. 3
(NCM, Vol. III, Annex 33).
315Terms of Reference (NCM, Vol. II, Annex 9).
140 5.22 Ultimately, a team of seven officials from various governmental
institutions was formed to evaluate EPN’s request. This intra-governmental team,
which was overseen and coordinated by technical experts from MARENA’s
Department of Environmental Quality, included representatives and technical
experts from:
• The Executive Secretariat for the Preservation of the Southeast
Nicaraguan Biosphere;
• The Nicaraguan Institute for Territorial Studies (“INETER” per the
Spanish acronym);
• The Department for Water Transportation of the Ministry of
Transportation and Infrastructure and
314
• MARENA’s Territorial Delegation for the San Juan River.
(d) The Terms of Reference
5.23 Shortly thereafter, on 9 March 2006, MARENA transmitted to EPN
the official Terms of Reference for the dredging project. 315The Terms of
Reference explained that the proposed project was required to be reviewed in light
of all applicable legal instruments, including:
labor laws; those for the protection of geographic, environmental and
municipal spaces; quality standards, technical standards, and environmental
314See MARENA Administrative Resolution No. 038 -2008, 22 December 2008, p. 1, para. 3
(NCM, Vol. III, Annex 33).
315Terms of Reference (NCM, Vol. II, Annex 9). River where dredging was proposed, “in order to obtain evidence to facilitate the
evaluation of the Environmental Impact Study to be prepared for the project, as
well as possible sites for the deposition of dredged materials.” 320They also
consulted with the Mayor of Sa n Juan de Nicaragua and persons with substantial
knowledge of the area, such as park rangers responsible for monitoring the
Southeast Nicaraguan Biosphere, the leadership of the Nicaraguan Army stationed
in the zone, and local residents.
5.27 MARENA’s ins pection report concluded that “[ c]onditions for
navigation along the [San Juan] River have been deteriorating in recent years” due
to large sediment loads originating primarily from Costa Rica, reducing the depth
of the River in some places “to only 30 or 40 ce ntimeters.” This made it
“impossible and very dangerous” for “most boats utilized by local townspeople
for transportation or to move goods and merchandise” to navigate the River. 321
According to the report, the situation was worst in the stretch of the River
beginning approximately two kilometers upstream of the site known as “Punta
Chingo Petaca” until the mouth of Nicaragua’s San Juanillo River .322In some
locations, the team observed “sandbanks emerging on both sides of the River, and
in some sites, in the c enter of the channel.” The inspection report further noted
that “[d]uring the most intense months of the summer, between April and the first
320
Ministry of the Environment and Natural Resources (MARENA), Report on site visit to the San
Juan River Dredging Project, Ministry of the Environment and Natural Resources (MARENA),
from 21- 25 March 2006 (NCM, Vol. II, Annex 18).
321Ibid.
322Ibid.
142River where dredging was proposed, “in order to obtain evidence to facilitate the
evaluation of the Environmental Impact Study to be prepared for the project, as
well as possible sites for the deposition of dredged materials.” 320They also
consulted with the Mayor of Sa n Juan de Nicaragua and persons with substantial
knowledge of the area, such as park rangers responsible for monitoring the
Southeast Nicaraguan Biosphere, the leadership of the Nicaraguan Army stationed
in the zone, and local residents.
5.27 MARENA’s ins pection report concluded that “[ c]onditions for
navigation along the [San Juan] River have been deteriorating in recent years” due
to large sediment loads originating primarily from Costa Rica, reducing the depth
of the River in some places “to only 30 or 40 ce ntimeters.” This made it
“impossible and very dangerous” for “most boats utilized by local townspeople
for transportation or to move goods and merchandise” to navigate the River. 321
According to the report, the situation was worst in the stretch of the River
beginning approximately two kilometers upstream of the site known as “Punta
Chingo Petaca” until the mouth of Nicaragua’s San Juanillo River .322In some
locations, the team observed “sandbanks emerging on both sides of the River, and
in some sites, in the c enter of the channel.” The inspection report further noted
that “[d]uring the most intense months of the summer, between April and the first
320
Ministry of the Environment and Natural Resources (MARENA), Report on site visit to the San
Juan River Dredging Project, Ministry of the Environment and Natural Resources (MARENA),
from 21- 25 March 2006 (NCM, Vol. II, Annex 18).
321Ibid.
322Ibid. 5.30 Regarding sites for the deposit of dredged sediments, the reviewing
team identified possible sites along the left (that is, Nicaraguan) bank of the River,
taking into account the characteristics of the San Juan River Wildlife Reserve. 326
The deposition sites considered by the reviewing team were all believed to be
located in areas where agro -forestry development had taken place, a fact that
MARENA noted in the inspection report needed to be verified in the EIS,
327
pursuant to the zoning of the Management Plan for the protected area. Thus, the
intra-governmental reviewing team reported that “[t]hrough observations of the
left-hand side of the River it had identified sites or areas affected by human
intervention which could potentially be used as deposit sites during the dredging
project,” and that these sites would be evaluated in further detail in the EIS. 328
Subsequently, a meeting of the reviewing team took place at EPN’s offices on 28
329
March 2006.
330
5.31 A second site visit was conducted from 11-15 July 2006.
326Ibid.
327Ibid.
328Ibid.
329
See Letter from Engineer Noel S. Salinas Alvarado, Technical Manager, National Ports
Company to Members of the Institutional Commission, Río San Juan Dredging Project, Engineer
Milton Medina MARENA Delegate, Engineer Sergio Cordonero INETER delegate, Reference
GT-0237-03-2006, 25 March 2006 (NCM, Vol. III, Annex 46).
330
See Letter from Hilda Espinoza , General Director for Environmental Quality, Ministry for the
Environment and Nat ural Resources to Mr. Alejandro Fiallos Navarro Executive President of
National Port Authority, Reference DGCA -HEU-C-413-07-2006, 03 July 2006 (1) (NCM, Vol.
III, Annex 47(1)); Memorandum from Hilda Espinoza, General Director for Environmental
Quality, Ministry for the Environment and Natural Resources to Dr. Ivan Ortega G. Director of the
144 5.30 Regarding sites for the deposit of dredged sediments, the reviewing
team identified possible sites along the left (that is, Nicaraguan) bank of the River,
taking into account the characteristics of the San Juan River Wildlife Reserve. 326
The deposition sites considered by the reviewing team were all believed to be
located in areas where agro -forestry development had taken place, a fact that
MARENA noted in the inspection report needed to be verified in the EIS,
327
pursuant to the zoning of the Management Plan for the protected area. Thus, the
intra-governmental reviewing team reported that “[t]hrough observations of the
left-hand side of the River it had identified sites or areas affected by human
intervention which could potentially be used as deposit sites during the dredging
project,” and that these sites would be evaluated in further detail in the EIS. 328
Subsequently, a meeting of the reviewing team took place at EPN’s offices on 28
329
March 2006.
330
5.31 A second site visit was conducted from 11-15 July 2006.
326Ibid.
327Ibid.
328Ibid.
329
See Letter from Engineer Noel S. Salinas Alvarado, Technical Manager, National Ports
Company to Members of the Institutional Commission, Río San Juan Dredging Project, Engineer
Milton Medina MARENA Delegate, Engineer Sergio Cordonero INETER delegate, Reference
GT-0237-03-2006, 25 March 2006 (NCM, Vol. III, Annex 46).
330
See Letter from Hilda Espinoza , General Director for Environmental Quality, Ministry for the
Environment and Nat ural Resources to Mr. Alejandro Fiallos Navarro Executive President of
National Port Authority, Reference DGCA -HEU-C-413-07-2006, 03 July 2006 (1) (NCM, Vol.
III, Annex 47(1)); Memorandum from Hilda Espinoza, General Director for Environmental
Quality, Ministry for the Environment and Natural Resources to Dr. Ivan Ortega G. Director of the River in San Carlos, and the Town Hall of San Juan del Norte. In addition, to
ensure that it was widely known that the Environmental Impact Document was
publicly available, on 7 August 2006, EPN published notices of where it could be
found in La Prensa a nd El Nuevo Diario, the most widely circulated national
newspapers in Nicaragua 332as required under Decree 45 -94 . 33MARENA’s
Director of Environmental Evaluation and Protection also coordinated with
MARENA’s central offices, its delegation for the San Juan River, the mayors of
San Juan del Norte and El Castillo, and EPN to ensure that the public consultation
period was properly conducted and that all comments were received by the intra -
governmental reviewing team. 334
5.34 Further, during the consultation period, EP N and its technical
consultants made presentations, including in San Juan de Nicaragua . After one
such presentation and resulting discussion, the City Council of San Juan de
332
Press Notice of the of Availability of the Environmental Impact Document for the Project
“Dredging of the San Juan River,” published in La Prensa and El Nuevo Diario, 7 August 2006
(NCM, Vol. III, Annex 91).
333Nicaraguan Decree 45-94, Art. 15 (NCM, Vol. III, Annex 28).
334See Memorandum from Edda Martínez, Director of Environmental Evaluation and Protection,
Ministry for the Environment and Natural Resources (MARENA) to Adelina Ramírez,
Documentation Center MARENA, Reference DGCA –EM–M291, 02 August 2006 (NCM, Vol.
III, Annex 48(1)) ; Memorandum from Edda Martínez, Director of Environmental Evaluation and
Protection, Ministry for the Environment and Natural Resources (MARENA) to José Luis
Galeano, MARENA Delegate Río San Juan , Reference DGCA – EM – M292, 02 August 2006
(NCM, Vol. III, Annex 48(2)) ; Letter from Edda Martí nez, Director of Environmental Evaluation
and Protection, Ministry for the Environment and Natural Resources (MARENA) to Mr. Francisco
Díaz Rivas, Municipality El C astillo, Reference DGCA – EM – C208, 02 August 2006 (NCM,
Vol. III, Annex 48(3)); Letter frm Edda Martínez, Director of Environmental Evaluation and
Protection, Ministry for the Environment and Natural Resources(MARENA) to Mr. César Collado
Parada, Municipality San Juan del Norte Reference DGCA – EM – C209, 02 August 2006 (NCM,
Vol. III, Annex 48(4)); Letter from Edda Martínez, Director of Environmental Evaluation and
Protection, Ministry for the Environment and Natural Resources (MARENA) to Alejandro Fiallos,
engineer, Reference DGCA–EM–C210, 02 August 2006 (NCM, Vol. III, Annex 48(5)).
146River in San Carlos, and the Town Hall of San Juan del Norte. In addition, to
ensure that it was widely known that the Environmental Impact Document was
publicly available, on 7 August 2006, EPN published notices of where it could be
found in La Prensa a nd El Nuevo Diario, the most widely circulated national
newspapers in Nicaragua 332as required under Decree 45 -94. 333MARENA’s
Director of Environmental Evaluation and Protection also coordinated with
MARENA’s central offices, its delegation for the San Juan River, the mayors of
San Juan del Norte and El Castillo, and EPN to ensure that the public consultation
period was properly conducted and that all comments were received by the intra -
governmental reviewing team. 334
5.34 Further, during the consultation period, EP N and its technical
consultants made presentations, including in San Juan de Nicaragua . After one
such presentation and resulting discussion, the City Council of San Juan de
332
Press Notice of the of Availability of the Environmental Impact Document for the Project
“Dredging of the San Juan River,” published in La Prensa and El Nuevo Diario, 7 August 2006
(NCM, Vol. III, Annex 91).
333Nicaraguan Decree 45-94, Art. 15 (NCM, Vol. III, Annex 28).
334See Memorandum from Edda Martínez, Director of Environmental Evaluation and Protection,
Ministry for the Environment and Natural Resources (MARENA) to Adelina Ramírez,
Documentation Center MARENA, Reference DGCA –EM–M291, 02 August 2006 (NCM, Vol.
III, Annex 48(1)) ; Memorandum from Edda Martínez, Director of Environmental Evaluation and
Protection, Ministry for the Environment and Natural Resources (MARENA) to José Luis
Galeano, MARENA Delegate Río San Juan , Reference DGCA – EM – M292, 02 August 2006
(NCM, Vol. III, Annex 48(2)) ; Letter from Edda Martí nez, Director of Environmental Evaluation
and Protection, Ministry for the Environment and Natural Resources (MARENA) to Mr. Francisco
Díaz Rivas, Municipality El C astillo, Reference DGCA – EM – C208, 02 August 2006 (NCM,
Vol. III, Annex 48(3)); Letter frm Edda Martínez, Director of Environmental Evaluation and
Protection, Ministry for the Environment and Natural Resources(MARENA) to Mr. César Collado
Parada, Municipality San Juan del Norte Reference DGCA – EM – C209, 02 August 2006 (NCM,
Vol. III, Annex 48(4)); Letter from Edda Martínez, Director of Environmental Evaluation and
Protection, Ministry for the Environment and Natural Resources (MARENA) to Alejandro Fiallos,
engineer, Reference DGCA–EM–C210, 02 August 2006 (NCM, Vol. III, Annex 48(5)). (g) The Third Site Inspection
5.36 The intra -governmental reviewing team, together with
representatives from EPN and CORASCO, conducted a third inspection of the site
from 17-20 September 2006, which was largely focused on identifying optimum
deposit sites. The team found that, because of their close proximity to wetlands,
certain sites would require the construction of barriers to prevent the wet dredged
material from shifting into areas where it could disrupt the flora and fauna present
339
in nearby areas. In other instances, the team concluded that sites proposed by
CORASCO needed to be replaced with other sites because of their location in
protected areas where the deposition of dredged materials posed a risk to the
340
wetlands. The report made clear that even the alternative sites could be utilized
only under strict conditions in order to protect the environment. For instance, the
report noted that EPN would only be authorized to deposit a certain volume of
dredged sediment at each site, in order to avoid unnecessary impacts to
surrounding areas. Only small areas were to be cleared for accessing the sites, not
broad cleared pathways, and the barriers required to contain deposited sediments
had to be installed prior to any use of the deposit sites for dredged materials. 341
Reference PE-AFN-0855-0-06, 3 October 2006 and attachments thereto (NCM, Vol. III, Annex
53).
339Report of Inspection Visit, Project "Improvement of Navigability of the San Juan River", from
340to 20 September 2006, p. 1 (NCM, Vol. II, Annex 19).
341Ibid., pp. 1-2.
Ibid., pp. 2-4.
148 (g) The Third Site Inspection
5.36 The intra -governmental reviewing team, together with
representatives from EPN and CORASCO, conducted a third inspection of the site
from 17-20 September 2006, which was largely focused on identifying optimum
deposit sites. The team found that, because of their close proximity to wetlands,
certain sites would require the construction of barriers to prevent the wet dredged
material from shifting into areas where it could disrupt the flora and fauna present
339
in nearby areas. In other instances, the team concluded that sites proposed by
CORASCO needed to be replaced with other sites because of their location in
protected areas where the deposition of dredged materials posed a risk to the
340
wetlands. The report made clear that even the alternative sites could be utilized
only under strict conditions in order to protect the environment. For instance, the
report noted that EPN would only be authorized to deposit a certain volume of
dredged sediment at each site, in order to avoid unnecessary impacts to
surrounding areas. Only small areas were to be cleared for accessing the sites, not
broad cleared pathways, and the barriers required to contain deposited sediments
had to be installed prior to any use of the deposit sites for dredged materials. 341
Reference PE-AFN-0855-0-06, 3 October 2006 and attachments thereto (NCM, Vol. III, Annex
53).
339Report of Inspection Visit, Project "Improvement of Navigability of the San Juan River", from
340to 20 September 2006, p. 1 (NCM, Vol. II, Annex 19).
341Ibid., pp. 1-2.
Ibid., pp. 2-4. 346
(the “Project Design Study” ). Collectively, this documentation both: (1)
described the plan for the project and existing environmental conditions; and (2)
included detailed analyses of possible environmental impacts, including whether
and to what extent the dredging would cause changes in the relative fl ows of the
San Juan and Colorado Rivers, or harm to water quality or aquatic organisms, and
the likely environmental impact of the deposition of dredged sediments on the
Nicaraguan bank.
5.39 As described in the EIS, the proposed project included dredging
aimed at ensuring the year-round existence of a usable navigation channel along
the final 42 kilometers of the River, from Punta Petaca, upstream from the
Colorado River, to the mouth of the San Juan, all within the limits of the San Juan
.347
River Wildlife Reserve The EIS explained that the project was necessary to
ensure the navigability of the Lower San Juan in order to promote commercial
development and to serve the populations of certain nearby towns, including San
Juan de Nicaragua. 348
5.40 The EIS provided detail ed information regarding the existing
environmental conditions in and around the San Juan R iver, including in Costa
Rica. This included relevant flow rates, water and sediment quality, the geological
and hydrological characteristics of the region, a survey of the flora and vegetation
346Project Design Study, September 2006 (NCM, Vol. II, Annex 8).
347Environmental Impact Study, September 2006, pp. 1, 4, 7 & 10- 13 (NCM, Vol. II, Annex 7).
348Ibid., p. 7.
150 346
(the “Project Design Study” ). Collectively, this documentation both: (1)
described the plan for the project and existing environmental conditions; and (2)
included detailed analyses of possible environmental impacts, including whether
and to what extent the dredging would cause changes in the relative fl ows of the
San Juan and Colorado Rivers, or harm to water quality or aquatic organisms, and
the likely environmental impact of the deposition of dredged sediments on the
Nicaraguan bank.
5.39 As described in the EIS, the proposed project included dredging
aimed at ensuring the year-round existence of a usable navigation channel along
the final 42 kilometers of the River, from Punta Petaca, upstream from the
Colorado River, to the mouth of the San Juan, all within the limits of the San Juan
.347
River Wildlife Reserve The EIS explained that the project was necessary to
ensure the navigability of the Lower San Juan in order to promote commercial
development and to serve the populations of certain nearby towns, including San
Juan de Nicaragua. 348
5.40 The EIS provided detail ed information regarding the existing
environmental conditions in and around the San Juan R iver, including in Costa
Rica. This included relevant flow rates, water and sediment quality, the geological
and hydrological characteristics of the region, a survey of the flora and vegetation
346Project Design Study, September 2006 (NCM, Vol. II, Annex 8).
347Environmental Impact Study, September 2006, pp. 1, 4, 7 & 10- 13 (NCM, Vol. II, Annex 7).
348Ibid., p. 7. River, would revert back to the San Juan, 351with even less of an effect in the rainy
352
season. This conclusion is consistent with a study subsequently prepared by
Costa Rica, which similarly found that the project would diminish the flow of the
Colorado River by less than 4.5%. 353
5.44 Regarding the probable impact of dredging on water quality and
aquatic organisms, the EIS assessed sediment quality and particle size in both the
riverbed and dissolved in the water at va rious key points in the River. Using a
“cause-effect matrix” in conjunction with data about sediment quality and
particulate size, the EIS concluded there would be no long-term negative effect on
any water quality parameter or aquatic life as a resultof the dredging project. This
was because the majority of the sediments from the river bottom that would be
released into the water column during the dredging would quickly resettle, with
the remainder being of such character and composition that it would not present a
354
risk of environmental harm. Moreover, the EIS demonstrated that the increased
flow of water in the Lower San Juan River as a result of the dredging would be
351Ibid., pp. 10-13 & 71-73; Project Design Study, pp. 16 -18 (NCM, Vol. II , Annex 8); see also
Declaration of Lester Antonio Quintero Gomez, Technical Manager of EPN, 16 December 2010,
352a. 7 (CRM, Vol. IV, Annex 164).
See Affidavit of Hilda Espinoza Urbina, Director General of MARENA’s Department of
Environmental Quality, 20 December 2010, para. 20(f) (CRM, Vol. IV, Annex 165).
353C.S. Diseño, “Study of flow behavior in the bifurcation San Juan River – Colorado River,” p. 5
(NCM, Vol. II, Annex 11).
354Environmental Impact Study, pp. 10- 13, 59-67, 169-172 & 198-204 (NCM, Vol. II, Annex 7 ).
See also Declaration of Lester Antonio Quintero Gomez, Technical Manager of EPN,
16 December 2010, para. 8 (CRM, Vol. IV, Annex 164).
152River, would revert back to the San Juan, 351with even less of an effect in the rainy
352
season. This conclusion is consistent with a study subsequently prepared by
Costa Rica, which similarly found that the project would diminish the flow of the
Colorado River by less than 4.5%. 353
5.44 Regarding the probable impact of dredging on water quality and
aquatic organisms, the EIS assessed sediment quality and particle size in both the
riverbed and dissolved in the water at va rious key points in the River. Using a
“cause-effect matrix” in conjunction with data about sediment quality and
particulate size, the EIS concluded there would be no long-term negative effect on
any water quality parameter or aquatic life as a resultof the dredging project. This
was because the majority of the sediments from the river bottom that would be
released into the water column during the dredging would quickly resettle, with
the remainder being of such character and composition that it would not present a
354
risk of environmental harm. Moreover, the EIS demonstrated that the increased
flow of water in the Lower San Juan River as a result of the dredging would be
351Ibid., pp. 10-13 & 71-73; Project Design Study, pp. 16 -18 (NCM, Vol. II , Annex 8); see also
Declaration of Lester Antonio Quintero Gomez, Technical Manager of EPN, 16 December 2010,
352a. 7 (CRM, Vol. IV, Annex 164).
See Affidavit of Hilda Espinoza Urbina, Director General of MARENA’s Department of
Environmental Quality, 20 December 2010, para. 20(f) (CRM, Vol. IV, Annex 165).
353C.S. Diseño, “Study of flow behavior in the bifurcation San Juan River – Colorado River,” p. 5
(NCM, Vol. II, Annex 11).
354Environmental Impact Study, pp. 10- 13, 59-67, 169-172 & 198-204 (NCM, Vol. II, Annex 7 ).
See also Declaration of Lester Antonio Quintero Gomez, Technical Manager of EPN,
16 December 2010, para. 8 (CRM, Vol. IV, Annex 164). areare located on the left -hand and indisputably Nicaraguan bank of the River ( see
FigFigure5.1.).
FigFigure5.1.
Figure 5.1.:Map of Deposit Sites Proposed in September 2006 EIS
Figure 5.1.:Map of Deposit Sites Proposed in September 2006 EIS
5.45.47 As As the foregoing makes clear, Costa Rica is incorrect in asserting
thathat “the Nicaraguan EIS conducted in relation to the dredging works on the San
JuaJuan is incomplete, as it did not consider the transboundary impacts of those
358358
worworks.” As As an initial matter, the EIS included a detailed compilation and
anaanalysis of existing environmental conditions in and around the San Juan River,
35IbidIbid., p. 210, para. 5.25; see also pp. 243-244, para. 5.89 (“The 2006 EIS failed to address a
numnumber of key issues, including the necessary evaluation of the cros-border effects of the
dredredging program on Costa Rican territory.”).
154are located on the left -hand and indisputably Nicaraguan bank of the River ( see
Figure5.1.).
Figure5.1.
Figure 5.1.:Map of Deposit Sites Proposed in September 2006 EIS
5.47 As the foregoing makes clear, Costa Rica is incorrect in asserting
that “the Nicaraguan EIS conducted in relation to the dredging works on the San
Juan is incomplete, as it did not consider the transboundary impacts of those
works.” 358As an initial matter, the EIS included a detailed compilation and
analysis of existing environmental conditions in and around the San Juan River,
358Ibid., p. 210, para. 5.25; see also pp. 243-244, para. 5.89 (“The 2006 EIS failed to address a
number of key issues, including the necessary evaluation of the cros-border effects of the
dredging program on Costa Rican territory.”). fails to take account of potential transboundary impacts that the dredging works
360
might have” ; it is also legally incorrect, as it is the adequacy of the EIA process,
not of the EIS, that matters. The EIA process continued well after the revised EIS
and related documentation were submitted to MARENA for review by the intra -
governmental reviewing team.
5.49 For instance, on 28 September 2006, a meeting took place at
CORASCO’s offices, attended by 16 people from CORASCO, EPN and the intra-
361
governmental reviewing team. The CORASCO engineers responsible for the
Project Design Study that had been submitted to MARENA on 25 September
2006 made a presentation, explaining “all the aspects of the design of the
navigation channel between Punta Petaca and San Juan de Nicar agua, a length of
362
approximately 42 kilometers.” Afterwards, the specialists who developed the
EIS presented on their respective areas of expertise. During this meeting,
MARENA stressed that the findings of CORASCO’s specialists had to be
included in the Environmental Management Plan included in the final EIS. To that
end, MARENA instructed EPN to conduct a detailed review in order to guarantee
that their observations were fully included. 363
5.50 At the conclusion of the meeting, another visit to the site was
discussed in order to “verify the results and conclusions of both studies, especially
360CRM, p. 226, para. 5.62.
361See Letter from Ing. Leonardo Zacarías Corea T. General Manager Corea y Asociados S.A.
(CORASCO) to Ing. Noel S. Salinas Alvarado Technical Manager, National Port Authority,
362ctober 2006 and attendance list attached thereto (NCM, Vol. III, Annex 52).
363Ibid., p. 1.
Ibid.
156fails to take account of potential transboundary impacts that the dredging works
360
might have” ; it is also legally incorrect, as it is the adequacy of the EIA process,
not of the EIS, that matters. The EIA process continued well after the revised EIS
and related documentation were submitted to MARENA for review by the intra -
governmental reviewing team.
5.49 For instance, on 28 September 2006, a meeting took place at
CORASCO’s offices, attended by 16 people from CORASCO, EPN and the intra-
361
governmental reviewing team. The CORASCO engineers responsible for the
Project Design Study that had been submitted to MARENA on 25 September
2006 made a presentation, explaining “all the aspects of the design of the
navigation channel between Punta Petaca and San Juan de Nicar agua, a length of
362
approximately 42 kilometers.” Afterwards, the specialists who developed the
EIS presented on their respective areas of expertise. During this meeting,
MARENA stressed that the findings of CORASCO’s specialists had to be
included in the Environmental Management Plan included in the final EIS. To that
end, MARENA instructed EPN to conduct a detailed review in order to guarantee
that their observations were fully included. 363
5.50 At the conclusion of the meeting, another visit to the site was
discussed in order to “verify the results and conclusions of both studies, especially
360CRM, p. 226, para. 5.62.
361See Letter from Ing. Leonardo Zacarías Corea T. General Manager Corea y Asociados S.A.
(CORASCO) to Ing. Noel S. Salinas Alvarado Technical Manager, National Port Authority,
362ctober 2006 and attendance list attached thereto (NCM, Vol. III, Annex 52).
363Ibid., p. 1.
Ibid. to the members of the intra -governmental reviewing team for their review and
.369
comment
(i) The Fourth Site Inspection
5.53 The reviewing team conducted its fourth site inspection from 11-16
October 2006, with the principal purpose of inspecting each of the 21 sites
370
proposed for the depositing of dredged materials on land. The team had decided
to reconsider three of the sites that had been previ ously ruled out, ruling that they
could only be utilized if they were at least 15 meters from the bank of the San
Juan River, in order to leave the banks protected with existing vegetation, and if
an environmental supervisor was present during their use in order to ensure
compliance with all requirements. 371At EPN’s request, the team also considered
seven additional sites.
5.54 The intra -governmental reviewing team ultimately decided that
some of the sites should be moved for environmental reasons. For instance, a new
site was established between prior sites No. 4 and No. 5, which would allow for
369Letter fr om Edda Martínez Director for Environmental Oversight and Protection DGCA,
MARENA to Mr. Jurgen Sengelman Director DGTA/MTI, Reference DGCA- EM-C258, 10
October 006 (NCM, Vol. III, Annex 55(1)); Letter from Edda Martínez Director for
Environmental Oversight and Protection DGCA, MARENA to Mr. Luis Palacios Director for
Water Resources INETER, Reference DGCA -EM-C259, 10 October 2006 (NCM, Vol. III, Annex
55(2)); Memorandum from Edda Martínez Director for Environmental Oversight and Protection
DGCA, MARENA to José Luis Galeno Director SERB – SENMARENA, Reference DGCA-EM-
M 396, 11 October 2006 (NCM, Vol. III, Annex 55(3)); Memorandum from Edda Martínez
Director for Environmental Oversight and Protection DGCA, MARENA to Iván Ortega Director
for Protected Areas, MARENA, Reference DGCA-EM-M 397, 11 October 2006 ( (NCM, Vol. III,
370ex 55(4)).
371Report of Site Inspection Conducted 11-16 October 2006, p. 1 (NCM, Vol. II, Annex 20).
Ibid.
158to the members of the intra -governmental reviewing team for their review and
.369
comment
(i) The Fourth Site Inspection
5.53 The reviewing team conducted its fourth site inspection from 11-16
October 2006, with the principal purpose of inspecting each of the 21 sites
370
proposed for the depositing of dredged materials on land. The team had decided
to reconsider three of the sites that had been previ ously ruled out, ruling that they
could only be utilized if they were at least 15 meters from the bank of the San
Juan River, in order to leave the banks protected with existing vegetation, and if
an environmental supervisor was present during their use in order to ensure
compliance with all requirements. 371At EPN’s request, the team also considered
seven additional sites.
5.54 The intra -governmental reviewing team ultimately decided that
some of the sites should be moved for environmental reasons. For instance, a new
site was established between prior sites No. 4 and No. 5, which would allow for
369Letter fr om Edda Martínez Director for Environmental Oversight and Protection DGCA,
MARENA to Mr. Jurgen Sengelman Director DGTA/MTI, Reference DGCA- EM-C258, 10
October 006 (NCM, Vol. III, Annex 55(1)); Letter from Edda Martínez Director for
Environmental Oversight and Protection DGCA, MARENA to Mr. Luis Palacios Director for
Water Resources INETER, Reference DGCA -EM-C259, 10 October 2006 (NCM, Vol. III, Annex
55(2)); Memorandum from Edda Martínez Director for Environmental Oversight and Protection
DGCA, MARENA to José Luis Galeno Director SERB – SENMARENA, Reference DGCA-EM-
M 396, 11 October 2006 (NCM, Vol. III, Annex 55(3)); Memorandum from Edda Martínez
Director for Environmental Oversight and Protection DGCA, MARENA to Iván Ortega Director
for Protected Areas, MARENA, Reference DGCA-EM-M 397, 11 October 2006 ( (NCM, Vol. III,
370ex 55(4)).
371Report of Site Inspection Conducted 11-16 October 2006, p. 1 (NCM, Vol. II, Annex 20).
Ibid. inspection in purple (see Figure 5.2. ). As is readily apparent, there is no basis fors for
Costa Rica’s allegation that EPN, MARENA, or any other Nicaraguan entity
Costa Rica’s allegation that EPN, MARENA, or any other Nicaraguan entity
intended to create deposition sites on Costa Rican territory.tory.76 376
Figure5.2.e5.2.
Figure 5.2. Map of All Deposit Sites Analyzed During October 2006 Site Inspectionction
5.575.57 During the site inspection, the reviewing team also mademade
observations regarding protective actions that would be required at certain sites.ites.
Specifically, it found that sites No. 18 and No. 19 contained flows of water that that
needed to be protected, and concluded that the boundaries of the sites should beld be
376See CRM, p. 107, para. 3.79.3.79.
160inspection in purple (see Figure 5.2. ). As is readily apparent, there is no basis for
Costa Rica’s allegation that EPN, MARENA, or any other Nicaraguan entity
intended to create deposition sites on Costa Rican territory. 376
Figure5.2.
Figure 5.2. Map of All Deposit Sites Analyzed During October 2006 Site Inspection
5.57 During the site inspection, the reviewing team also made
observations regarding protective actions that would be required at certain sites.
Specifically, it found that sites No. 18 and No. 19 contained flows of water that
needed to be protected, and concluded that the boundaries of the sites should be
376
See CRM, p. 107, para. 3.79. 5.59 On 27 October 2006, an additional technical meeting of the
reviewing team was held. Based on the concerns of the members of the intra -
governmental reviewing team, MARENA requested additional information and
clarification from EPN and CORASCO.
5.60 An additional meeting between CORASCO and MARENA took
place on 9 November 2006, during which CORASCO agreed, among other things,
to submit a revised Environmental Management Plan. 381In early February 2008,
EPN personnel, together with representatives of CORASCO, the Ministry of
Transportation and Infrastructure, and the Army, conducted another visit to
evaluate sedimentation in the San Ju an River, particularly from the delta where
the Colorado River splits off to the South, downstream to its mouth in the
Caribbean Sea, and to assess the scope of the works that needed to be undertaken
382
to guarantee permanent navigability. The group also met with various officials
383
from the town of San Juan de Nicaragua.
5.61 During the visit, which included both a flyover of the area and
navigation in the river itself, the inspection team observed “the shallow depth that
in general exists in this stretch of the river, the product of the currents and
accumulated sedimentation, which limits quick and safe navigation, a situation
381
Letter from Noel S. Salinas Alvarado of EPN to Zacarías Corea of CORASCO, Reference GT -
0954-11-2006, 23 November 2006 (NCM, Vol. III, Annex 57).
382See EPN “Report on the Visit Conducted to the San Juan River and Considerations regarding
its Cleaning and Dredging to Guarantee its Permanent Navigation,” based on 6 -7 February 2008
383it to the site, p. 2 (NCM, Vol. II, Annex 21).
Ibid., pp. 3 & 25.
162 5.59 On 27 October 2006, an additional technical meeting of the
reviewing team was held. Based on the concerns of the members of the intra -
governmental reviewing team, MARENA requested additional information and
clarification from EPN and CORASCO.
5.60 An additional meeting between CORASCO and MARENA took
place on 9 November 2006, during which CORASCO agreed, among other things,
to submit a revised Environmental Management Plan. 381 In early February 2008,
EPN personnel, together with representatives of CORASCO, the Ministry of
Transportation and Infrastructure, and the Army, conducted another visit to
evaluate sedimentation in the San Ju an River, particularly from the delta where
the Colorado River splits off to the South, downstream to its mouth in the
Caribbean Sea, and to assess the scope of the works that needed to be undertaken
382
to guarantee permanent navigability. The group also met with various officials
383
from the town of San Juan de Nicaragua.
5.61 During the visit, which included both a flyover of the area and
navigation in the river itself, the inspection team observed “the shallow depth that
in general exists in this stretch of the river, the product of the currents and
accumulated sedimentation, which limits quick and safe navigation, a situation
381
Letter from Noel S. Salinas Alvarado of EPN to Zacarías Corea of CORASCO, Reference GT -
0954-11-2006, 23 November 2006 (NCM, Vol. III, Annex 57).
382See EPN “Report on the Visit Conducted to the San Juan River and Considerations regarding
its Cleaning and Dredging to Guarantee its Permanent Navigation,” based on 6 -7 February 2008
383it to the site, p. 2 (NCM, Vol. II, Annex 21).
Ibid., pp. 3 & 25. prepared and revised by CORASCO be reviewed and analyzed, in order to update
391
certain data.
5.64 On 15 July 2008, EPN wrote to the Director of MARENA’s
Department of Environmental Quality, reiterating its request for the
environmental authorization of the project. In support of this request, EPN
provided a new report regarding the state of the San Juan River and the need for
dredging to ensure its permanent navigability, which had been prepared after
EPN’s site visit in February. 392EPN also submitted, on compact disk, another
copy of the final Project Design Study prepared by CORASCO in 2006 .393
5.65 On 6 August 2008, another meeting was held to consider EPN’s
new submission. The meeting, which was held at MARENA’s offices, was
attended by its Vice Minister and the Director of its Department of Environmental
394
Quality, as well as by representatives of EPN and CORASCO . Based on
information provided by CORASCO at the meeting, MARENA concluded that all
of the deposit sites for dredged material proposed by CORASCO were acceptable,
with the exception of the sites located between the mouths of the San Juanillo and
San Juan Rivers, which MARENA determined should be relocated to the strip of
391
392Ibid., p. 13.
Letter from EPN Executive President, Virgilio Silva Munguía to Hilda Espinoza Urbina,
Director General of MARENA’s Department of Environmental Quality, Reference PE -VSM-
0754-07-2008, 15 July 2008 (NCM, Vol. III, Annex 59).
393See EPN “Report on the Visi t Conducted to the San Juan River and Considerations regarding
its Cleaning and Dredging to Guarantee its Permanent Navigation,” based on -7 February 2008
visit to the site, p. 23 (NCM, Vol. II, Annex 21).
394See Memorandum from Julio C. Ordoñez L. to Executive President, Virgilio Silva Munguía
(accompanying report), 13 August 2008, p. 1 of report (NCM, Vol. III, Annex 60).
164prepared and revised by CORASCO be reviewed and analyzed, in order to update
391
certain data.
5.64 On 15 July 2008, EPN wrote to the Director of MARENA’s
Department of Environmental Quality, reiterating its request for the
environmental authorization of the project. In support of this request, EPN
provided a new report regarding the state of the San Juan River and the need for
dredging to ensure its permanent navigability, which had been prepared after
EPN’s site visit in February. 392EPN also submitted, on compact disk, another
copy of the final Project Design Study prepared by CORASCO in 2006 .393
5.65 On 6 August 2008, another meeting was held to consider EPN’s
new submission. The meeting, which was held at MARENA’s offices, was
attended by its Vice Minister and the Director of its Department of Environmental
394
Quality, as well as by representatives of EPN and CORASCO . Based on
information provided by CORASCO at the meeting, MARENA concluded that all
of the deposit sites for dredged material proposed by CORASCO were acceptable,
with the exception of the sites located between the mouths of the San Juanillo and
San Juan Rivers, which MARENA determined should be relocated to the strip of
391
392Ibid., p. 13.
Letter from EPN Executive President, Virgilio Silva Munguía to Hilda Espinoza Urbina,
Director General of MARENA’s Department of Environmental Quality, Reference PE -VSM-
0754-07-2008, 15 July 2008 (NCM, Vol. III, Annex 59).
393See EPN “Report on the Visi t Conducted to the San Juan River and Considerations regarding
its Cleaning and Dredging to Guarantee its Permanent Navigation,” based on -7 February 2008
visit to the site, p. 23 (NCM, Vol. II, Annex 21).
394See Memorandum from Julio C. Ordoñez L. to Executive President, Virgilio Silva Munguía
(accompanying report), 13 August 2008, p. 1 of report (NCM, Vol. III, Annex 60). 398
reforestation, etc.” MARENA also informed EPN that the environmental permit
would require that the project’s budget include funding to pay for the services of
(i) a professional with the qualifications and experience necessary to assume the
role of permanent Environmental Manager throughout the life of the project; and
(ii) an inspector chosen by MARENA and the Executive Secretariat for the
Preservation of the Southeast Nicaraguan Biosphere to assure environmental
compliance. 399Finally, MARENA reminded EPN that an environmental permit
would need to be renewed if the authorized project was not initiated within 18
.400
months.
(k) The Fifth Site Inspection
5.68 From 17-20 September 2008, a fifth site visit was conducted by the
intra-governmental reviewing team. The team travelled from the bifurcation of the
Colorado to the mouth of the San Juan, during which time it inspected each of the
sites selected for the deposition of dredged material. 401It concluded that most of
the sites, including the new sites selected during the reviewing team’s
11-16 October 2006 site visi t, could be maintained as described in the EIS and
related documents, with t he exception of sites No. 1- 4. Some of these sites were
relocated due to their proximity to certain flora that serve as the primary food
398
399Ibid., report p. 2.
400Ibid., report pp. 2-3.
Ibid., report p. 3.
401EPN Memorandum from Arosman Mendieta Jerez, Supervising Engineer to Lester Quintero
Gomez, Technical Div. Manager, National Ports Company (accompanying minutes), Reference
IS-AMJ-12-09-08, 23 September 2008 (NCM, Vol. III, Annex 61).
166 398
reforestation, etc.” MARENA also informed EPN that the environmental permit
would require that the project’s budget include funding to pay for the services of
(i) a professional with the qualifications and experience necessary to assume the
role of permanent Environmental Manager throughout the life of the project; and
(ii) an inspector chosen by MARENA and the Executive Secretariat for the
Preservation of the Southeast Nicaraguan Biosphere to assure environmental
compliance. 399Finally, MARENA reminded EPN that an environmental permit
would need to be renewed if the authorized project was not initiated within 18
.400
months.
(k) The Fifth Site Inspection
5.68 From 17-20 September 2008, a fifth site visit was conducted by the
intra-governmental reviewing team. The team travelled from the bifurcation of the
Colorado to the mouth of the San Juan, during which time it inspected each of the
sites selected for the deposition of dredged material. 401It concluded that most of
the sites, including the new sites selected during the reviewing team’s
11-16 October 2006 site visi t, could be maintained as described in the EIS and
related documents, with t he exception of sites No. 1- 4. Some of these sites were
relocated due to their proximity to certain flora that serve as the primary food
398
399Ibid., report p. 2.
400Ibid., report pp. 2-3.
Ibid., report p. 3.
401EPN Memorandum from Arosman Mendieta Jerez, Supervising Engineer to Lester Quintero
Gomez, Technical Div. Manager, National Ports Company (accompanying minutes), Reference
IS-AMJ-12-09-08, 23 September 2008 (NCM, Vol. III, Annex 61). 407
Wildlife Reserve. It noted that an area of 420 hectares could be influenced by
the dredging activities either directly or indirectly: 126 hectares would be affected
directly through the restoration of a navigation channel (30 meters wide and 42
kilometers long); 130.8 hectares would be affected directly through the deposition
of dredged sediments; and 163.2 hectares might be affected indirectly by the
proposed activities. 408
5.72 In connection with identifying the approved sediment deposit sites
by their geographic coordinates and explaining that they had been selected due to
409
their particular characteristics, the Technical Opinion stated that “[t]he material
extracted will be deposited in small deposits distributed along the northern bank
410
along the section of the river to be cleaned.” In other words, all sediment
deposits would be located in territory that indisputably belongs to Nicaragua.
5.73 The Technical Opinion also assessed the possible environmental
impacts that had been identified, together with recommended mitigation
measures. These included: (1) impacts on water quality and aquatic organisms
caused by the re -suspension of sediments during dredging; (2) impacts on
vegetation, landscape, and terrestrial animals caused by the depositing of dredged
sediments at the selected disposal sites; (3) impacts on fauna caused by the noise
407Ibid., p. 1.
408
409Ibid.
410Ibid., pp. 2-3.
Ibid., p. 1 (emphasis added).
168 407
Wildlife Reserve. It noted that an area of 420 hectares could be influenced by
the dredging activities either directly or indirectly: 126 hectares would be affected
directly through the restoration of a navigation channel (30 meters wide and 42
kilometers long); 130.8 hectares would be affected directly through the deposition
of dredged sediments; and 163.2 hectares might be affected indirectly by the
proposed activities. 408
5.72 In connection with identifying the approved sediment deposit sites
by their geographic coordinates and explaining that they had been selected due to
409
their particular characteristics, the Technical Opinion stated that “[t]he material
extracted will be deposited in small deposits distributed along the northern bank
410
along the section of the river to be cleaned.” In other words, all sediment
deposits would be located in territory that indisputably belongs to Nicaragua.
5.73 The Technical Opinion also assessed the possible environmental
impacts that had been identified, together with recommended mitigation
measures. These included: (1) impacts on water quality and aquatic organisms
caused by the re -suspension of sediments during dredging; (2) impacts on
vegetation, landscape, and terrestrial animals caused by the depositing of dredged
sediments at the selected disposal sites; (3) impacts on fauna caused by the noise
407Ibid., p. 1.
408
409Ibid.
410Ibid., pp. 2-3.
Ibid., p. 1 (emphasis added). 5.76 The Technical Opinion concluded with a set of recommendations,
including: (1) that EPN remain in contact with the entities responsible for
monitoring the environmental performance of the project, as well as documenting
all of its environmental management activities; (2) that qualified personnel be
hired to meet EPN’s commitments, as per the EIS; (3) that all events affecting or
threatening the environment be reported to the competent authorities immediately;
and (4) that EPN ensure the availability of the technical and financial resources
necessary for the implementation of the Environmental Management Program as
set forth in the EIS.16
(m) MARENA’s Issuance of the Environmental Permit
5.77 By the end of November 2008, all of the requirements under
Nicaraguan law for environmental impact assessment had been satisfied.An intra-
governmental team had been assembled and had provided EPN with detailed
Terms of Reference to guide the preparation of an Environmental Impact Study.
EPN and a team of nearly a dozen environmental experts and hydrological
engineers had produced, revised, and augmented an EIS, in accordance with the
intra-governmental team’s demands, based upon f ive site visits and numerous
working meetings. EPN had also produced the mandatory Environmental Impact
Document, which was approved by MARENA before it was made available to the
general public, and notice of that availability had been published in two
41Ibid., pp. 8-9.
170 5.76 The Technical Opinion concluded with a set of recommendations,
including: (1) that EPN remain in contact with the entities responsible for
monitoring the environmental performance of the project, as well as documenting
all of its environmental management activities; (2) that qualified personnel be
hired to meet EPN’s commitments, as per the EIS; (3) that all events affecting or
threatening the environment be reported to the competent authorities immediately;
and (4) that EPN ensure the availability of the technical and financial resources
necessary for the implementation of the Environmental Management Program as
set forth in the EIS.416
(m) MARENA’s Issuance of the Environmental Permit
5.77 By the end of November 2008, all of the requirements under
Nicaraguan law for environmental impact assessment had been satisfied.An intra-
governmental team had been assembled and had provided EPN with detailed
Terms of Reference to guide the preparation of an Environmental Impact Study.
EPN and a team of nearly a dozen environmental experts and hydrological
engineers had produced, revised, and augmented an EIS, in accordance with the
intra-governmental team’s demands, based upon f ive site visits and numerous
working meetings. EPN had also produced the mandatory Environmental Impact
Document, which was approved by MARENA before it was made available to the
general public, and notice of that availability had been published in two
416Ibid., pp. 8-9. those present on Costa Rican territory, for an adequate analysis to take
place;
• That the EIS, as augmented and refined, established that the project
was not likely to have any significant adverse impacts on t he
environment, including to Costa Rica, because there would be no
significant effect on the San Juan River itself or the flora, fauna, or
abiotic characteristics of its zone of influence, whether in Nicaragua or
Costa Rica, and because no dredged sediment s would be deposited on
the Costa Rican side of the River;
• That the EIS and related documentation had presented convincing
evidence and supporting documentation, including substantial
technical bathymetrical data and flow calculations specifically
requested and reviewed by the reviewing team, that the project would
not materially affect the flow or navigability of the Colorado River,
which would be reduced by a few percentage points at most, and even
less in the rainy seasonand
• That the dredging project would have positive effects, not only for the
Nicaraguan and Costa Rican people who live in the area, but also for
the San Juan River itself and its zone of influence, including by
reducing erosion and sedimentation due to careful restoration of
portions of the Nicaraguan bank, as well as the restoration of the
mangrove swamps near the River’s mouth, which would assist the
172 those present on Costa Rican territory, for an adequate analysis to take
place;
• That the EIS, as augmented and refined, established that the project
was not likely to have any significant adverse impacts on t he the “improvement of the navigation route to permit the communities in the south-
environment, including to Costa Rica, because there would be no eastern corner of the national territory to be in contact by river with the rest of the
significant effect on the San Juan River itself or the flora, fauna, or country.”
abiotic characteristics of its zone of influence, whether in Nicaragua or the following dimensions
Costa Rica, and because no dredged sediment s would be deposited on
the Costa Rican side of the River;
• That the EIS and related documentation had presented convincing
evidence and supporting documentation, including substantial
technical bathymetrical data and flow calculations specifically
requested and reviewed by the reviewing team, that the project would 5.80
not materially affect the flow or navigability of the Colorado River, had to be utilized, both providing the relevant UTM coordinates and noting that
which would be reduced by a few percentage points at most, and even “[t]he material extracted from the river bed…shall be deposited at the sites
less in the rainy seasonand previously identified in the [EIS], located on the left bank of the San Juan River
• That the dredging project would have positive effects, not only for the
Nicaraguan and Costa Rican people who live in the area, but also for
the San Juan River itself and its zone of influence, including by 419
See Affidavit of Hilda Espinoza Urbina, Director General of MARENA’s Department of
reducing erosion and sedimentation due to careful restoration of Environmental Quality, 20 December 2010, para. 20 (CRM, Vol. IV, Annex 165); see also
MARENA Administrative Resolution No. 038 -2008, 22 Dece mber 2008 (NCM, Vol. III , Annex
33).
portions of the Nicaraguan bank, as well as the restoration of the 420MARENA Administrative Resolution No. 038 -2008, 22 December 2008, resolution 3, para. 1
(NCM, Vol. III, Annex 33).
mangrove swamps near the River’s mouth, which would assist the 421Ibid., resolution 3, para. 1. 422
along the length of the section where the project’s activities will be conducted.”
It thus made clear that all deposit sites would be located in Nicaragua.
5.81 Further, the authorization required EPN to restore deforested areas
“in accordance with a reforestation plan, making use of native species” and to
ensure that “[t]he protective barriers on the left bank of the San Juan
River…include the construction of a structure that does not permit erosion or
overflowing of the banks when the river rises…according to the construction
specifications shown in the [EIS].” 423
5.82 To ensure that the dredging project would not cause unacceptable
environmental impacts, additional conditions were incorporated into Resolution
No. 038- 2008 mandating that certain requirements be satisfied during the
implementation of the project. These included:
• That any extracted sediments be analysedand disposed of in specific
locations and in specific ways, taking care to preserve vegetation and
ensure that the sediments not be returned to the River;
• That measures be taken to prevent the spill or spread of the fuels used
to power the dredging equipment;
• That care be taken to protect the flora and fauna of the environment;
422See ibid., resolution 3, para. 2 (emphasis added).
423See ibid., resolution 3, para. 3 (emphasis added).
174 422
along the length of the section where the project’s activities will be conducted.”
It thus made clear that all deposit sites would be located in Nicaragua.
5.81 Further, the authorization required EPN to restore deforested areas
“in accordance with a reforestation plan, making use of native species” and to
ensure that “[t]he protective barriers on the left bank of the San Juan
River…include the construction of a structure that does not permit erosion or
overflowing of the banks when the river rises…according to the construction
specifications shown in the [EIS].” 423
5.82 To ensure that the dredging project would not cause unacceptable
environmental impacts, additional conditions were incorporated into Resolution
No. 038- 2008 mandating that certain requirements be satisfied during the
implementation of the project. These included:
• That any extracted sediments be analysedand disposed of in specific
locations and in specific ways, taking care to preserve vegetation and
ensure that the sediments not be returned to the River;
• That measures be taken to prevent the spill or spread of the fuels used
to power the dredging equipment;
• That care be taken to protect the flora and fauna of the environment;
422See ibid., resolution 3, para. 2 (emphasis added).
423See ibid., resolution 3, para. 3 (emphasis added). 430
as alleged by Costa Rica – and dredging operations therefore had to commence
by 9 January 2011. Accordingly, when Nicaragua initiated work on the dredging
project on 18 October 2010, the environmental authorization was still valid.
5.85 As the foregoing facts make clear, by strictly applying its own
rigorous environmental regulations in its exhaustive assessment of the possible
environmental impacts of the dredging project – including any such impacts to
Costa Rica’s environment or rivers – Nicaragua did, in fact, fully satisfy its EIA
obligations under international law. It assessed the likely effects of the dredging
project in depth and detail, requir ing EPN to carry its burden of proof, before
ultimately concluding that the project was not likely to produce any significant,
negative impacts. In doing so, the EIA process also demonstrated that the persons,
property, and environment of Costa Rica were not likely to be significantly
affected.
3. MARENA’s Review and Authorization of Additions to the
Dredging Project
5.86 Costa Rica is mistaken in asserting that MARENA’s October 2009
authorization of two additions to the San Juan River dredging project “did not
fulfill any particular environmental requirement” and were not the product of
additional environmental analysis. 431Like the dredging project, the additions were
authorized only after MARENA evaluated the likely environmental impacts of the
430Ibid., p. 109, para. 3.83.
431See ibid., p. 244, para. 5.89.
176 430
as alleged by Costa Rica – and dredging operations therefore had to commence
by 9 January 2011. Accordingly, when Nicaragua initiated work on the dredging
project on 18 October 2010, the environmental authorization was still valid.
5.85 As the foregoing facts make clear, by strictly applying its own
rigorous environmental regulations in its exhaustive assessment of the possible
environmental impacts of the dredging project – including any such impacts to
Costa Rica’s environment or rivers – Nicaragua did, in fact, fully satisfy its EIA
obligations under international law. It assessed the likely effects of the dredging
project in depth and detail, requir ing EPN to carry its burden of proof, before
ultimately concluding that the project was not likely to produce any significant,
negative impacts. In doing so, the EIA process also demonstrated that the persons,
property, and environment of Costa Rica were not likely to be significantly
affected.
3. MARENA’s Review and Authorization of Additions to the
Dredging Project
5.86 Costa Rica is mistaken in asserting that MARENA’s October 2009
authorization of two additions to the San Juan River dredging project “did not
fulfill any particular environmental requirement” and were not the product of
additional environmental analysis. 431Like the dredging project, the additions were
authorized only after MARENA evaluated the likely environmental impacts of the
430Ibid., p. 109, para. 3.83.
431See ibid., p. 244, para. 5.89. 5.88 EPN proposed these additions because it had concluded that they
were necessary to “create an alternate, more direct navigation route that would
reduce the time required to travel between the different sites along the river,” and
that they would have “a positive socioeconomic impact by permitting savings in
the operation costs of boats and those of the townspeople because the
consumption of fuel would be lower.” 436
5.89 With regard to the proposed additions’ environmental impacts,
EPN concluded they would have “low risk and little effect” since “the activities
[were] similar to others already realized in national territory and because the
direct area of influence would be the bed of the caño, the riverbed, and the sites
identified for the deposition of sediments and debris.” 437Nevertheless, recognizing
that the additional cleaning and dr edging activities could generate “both negative
and positive impacts,” EPN prepared an Environmental Management Plan as a
“technical methodological instrument” to ensure that the proper “corrective and
compensatory measures” were implemented, thereby ensur ing compliance with
438
Nicaraguan environmental requirements.
5.90 EPN submitted its proposed Environmental Management Plan to
MARENA, along with its request for an environmental permit authorizing the
439
work.
436
EPN, “Environmental Management Plan for Additions to the Project Improvement of
437igation in the San Juan de Nicaragua River,” September 2009, p. 2 (NCM, Vol. II, Annex 13).
438Ibid., p. 3.
439Ibid.
Ibid.
178 5.88 EPN proposed these additions because it had concluded that they
were necessary to “create an alternate, more direct navigation route that would
reduce the time required to travel between the different sites along the river,” and
that they would have “a positive socioeconomic impact by permitting savings in
the operation costs of boats and those of the townspeople because the
consumption of fuel would be lower.” 436
5.89 With regard to the proposed additions’ environmental impacts,
EPN concluded they would have “low risk and little effect” since “the activities
[were] similar to others already realized in national territory and because the
direct area of influence would be the bed of the caño, the riverbed, and the sites
identified for the deposition of sediments and debris.” 437Nevertheless, recognizing
that the additional cleaning and dr edging activities could generate “both negative
and positive impacts,” EPN prepared an Environmental Management Plan as a
“technical methodological instrument” to ensure that the proper “corrective and
compensatory measures” were implemented, thereby ensur ing compliance with
438
Nicaraguan environmental requirements.
5.90 EPN submitted its proposed Environmental Management Plan to
MARENA, along with its request for an environmental permit authorizing the
439
work.
436
EPN, “Environmental Management Plan for Additions to the Project Improvement of
437igation in the San Juan de Nicaragua River,” September 2009, p. 2 (NCM, Vol. II, Annex 13).
438Ibid., p. 3.
439Ibid.
Ibid. sought additional authorization for the additions to the project in August 2009.
And that request is what prompted MARENA to conduct additional
environmental assessments, in order to ensure that authorization was warranted
and consistent with applicable environmental regulations.
5.94 MARENA’s review was carried out in conformity with the
applicable requirements under Nicaraguan law, which, in the case of related
modifications or extensions of previously authorized projects, do not mandate the
preparation of a separate technical EIS. In that regard, Costa Rica is incorrect in
arguing: (1) that the a dditions to the larger dredging project were not actually
443 444
minor; (2) that MARENA failed to assess their environmental impact; and (3)
that MARENA did not follow its own domestic requirements in authorizing them
and should have prepared new technical environmental impact studies. 445
(a) The Proposed Project Additions
5.95 First, Costa Rica asserts that the additions to the project were not
minor because, in Costa Rica’s estimation, they involved “the construction of an
artificial canal” and “the cutting of meanders.” Specifically, Costa Rica argues
that Nicaragua’s “original plan” was “to deviate the waters of the San Juan,” 446
such that “the project was not directed at cleaning any caño, but rather at deviating
that “MARENA’s 2008 approval of the EIS stated that in th e last leg of the San Juan, before its
mouth in the Caribbean Sea, no dredging materials could be dumped there because of the fragile
443racter of the environment at that location.” Ibid., p. 244, para. 5.89.
444See ibid., pp. 121-122, para. 3.105.
445See bid., pp. 243-245, paras. 5.88-5.91.
446See ibid.
Ibid., pp. 239-240, para. 5.82.
180sought additional authorization for the additions to the project in August 2009.
And that request is what prompted MARENA to conduct additional
environmental assessments, in order to ensure that authorization was warranted
and consistent with applicable environmental regulations.
5.94 MARENA’s review was carried out in conformity with the
applicable requirements under Nicaraguan law, which, in the case of related
modifications or extensions of previously authorized projects, do not mandate the
preparation of a separate technical EIS. In that regard, Costa Rica is incorrect in
arguing: (1) that the a dditions to the larger dredging project were not actually
443 444
minor; (2) that MARENA failed to assess their environmental impact; and (3)
that MARENA did not follow its own domestic requirements in authorizing them
and should have prepared new technical environmental impact studies. 445
(a) The Proposed Project Additions
5.95 First, Costa Rica asserts that the additions to the project were not
minor because, in Costa Rica’s estimation, they involved “the construction of an
artificial canal” and “the cutting of meanders.” Specifically, Costa Rica argues
that Nicaragua’s “original plan” was “to deviate the waters of the San Juan,” 446
such that “the project was not directed at cleaning any caño, but rather at deviating
that “MARENA’s 2008 approval of the EIS stated that in th e last leg of the San Juan, before its
mouth in the Caribbean Sea, no dredging materials could be dumped there because of the fragile
443racter of the environment at that location.” Ibid., p. 244, para. 5.89.
444See ibid., pp. 121-122, para. 3.105.
445See bid., pp. 243-245, paras. 5.88-5.91.
446See ibid.
Ibid., pp. 239-240, para. 5.82. 451
of water have always been naturally connected. And Nicaragua never planned to
divert the entire flow of the Lower San Juan through the caño into the Lagoon, as
Costa Rica alleges. Indeed, doing so would cause the final stretches of the River
to dry up even further, which would be inconsistent with the objective of the
project in the first place, that is, to improve navigation and connect the town of
San Juan de Nica ragua to the rest of the country via a watercourse that is
navigable year-round.
5.97 In fact, Costa Rica’s own Memorial disproves its conspiracy
theory. By plotting on an aerial photograph the coordinates included in EPN’s 28
August 2009 request for authoriz ation of the caño- clearing project (i.e., 1208638
452
North – 863133 East and 1209823 North – 863450 East) – precisely the same
coordinates included in MARENA’s Resolution No. 038- 2008-A1 of October
2009 discussed below 453– Costa Rica demonstrates that Nicarag ua cleared the
454
caño exactly where it was supposed to under the MARENA resolution. In other
words, it is simply not true that Costa Rica’s initiation of this lawsuit prompted
Nicaragua to abandon a plan to divert the entire river through the caño.
5.98 Costa Rica also disputes that the caño ever existed. This technical
question is addressed in detail in Chapter 6. For purposes of the present
discussion, the relevant point is that, in August 2009, before this dispute arose
451
452See Kondolf, Section 2.5 (Appendix 1).
EPN, “Environmental Management Plan for Additions to the Project Improvement of
453igation in the San Juan de Nicaragua River,” September 2009, p. 2 (NCM, Vol. II, Annex 13).
MARENA Administrative Resolution No. 038 -2008-A1, 30 October 2009, p. 2, para . III &
p. 3, resolution 2(1) (NCM, Vol. III, Annex 34).
454See CRM, pp. 123-124, para. 3.107 & Figure 3.8.
182 451
of water have always been naturally connected. And Nicaragua never planned to
divert the entire flow of the Lower San Juan through the caño into the Lagoon, as
Costa Rica alleges. Indeed, doing so would cause the final stretches of the River
to dry up even further, which would be inconsistent with the objective of the
project in the first place, that is, to improve navigation and connect the town of
San Juan de Nica ragua to the rest of the country via a watercourse that is
navigable year-round.
5.97 In fact, Costa Rica’s own Memorial disproves its conspiracy
theory. By plotting on an aerial photograph the coordinates included in EPN’s 28
August 2009 request for authoriz ation of the caño- clearing project (i.e., 1208638
452
North – 863133 East and 1209823 North – 863450 East) – precisely the same
coordinates included in MARENA’s Resolution No. 038- 2008-A1 of October
2009 discussed below 453– Costa Rica demonstrates that Nicarag ua cleared the
454
caño exactly where it was supposed to under the MARENA resolution. In other
words, it is simply not true that Costa Rica’s initiation of this lawsuit prompted
Nicaragua to abandon a plan to divert the entire river through the caño.
5.98 Costa Rica also disputes that the caño ever existed. This technical
question is addressed in detail in Chapter 6. For purposes of the present
discussion, the relevant point is that, in August 2009, before this dispute arose
451
452See Kondolf, Section 2.5 (Appendix 1).
EPN, “Environmental Management Plan for Additions to the Project Improvement of
453igation in the San Juan de Nicaragua River,” September 2009, p. 2 (NCM, Vol. II, Annex 13).
MARENA Administrative Resolution No. 038 -2008-A1, 30 October 2009, p. 2, para . III &
p. 3, resolution 2(1) (NCM, Vol. III, Annex 34).
454See CRM, pp. 123-124, para. 3.107 & Figure 3.8. 5.100 Nor did MARENA simply review and accept uncritically the
documentation submitted by EPN in support of its request for additional
authorization. Rather, MARENA conducted a site visit to evaluate independently
the proposal, how the work would be carried out, and its likely environmental
impacts. It also produced a Technical Report, which included various
recommendations for how the potential environmental impacts of the proposed
additions could be prevented and mitigated, before finally deci ding to authorize
the project additions under certain strict conditions. Indeed, as explained below, as
a result of its EIA process, the caño -cleaning project that MARENA authorized
was different in substantial ways from the work that EPN had originally proposed.
5.101 MARENA conducted its site visit for assessing the environmental
impacts of the proposed additions on 7- 8 September 2009. In particular, two
officials from MARENA’s Department of Environmental Quality accompanied
EPN’s Technical Director on a visit to both the place in the river where the
458
additional dredging was to take place and to (and into) the caño.
5.102 Regarding the inspection of the caño area, according to the
MARENA Specialist in Environmental Management responsible for the
September 2009 site inspection, Engineer Elsa Maria Vivas Soto, the visit was
“mostly performed in a small boat, the starting point being the Harbor Head
45See Report of Site Inspection for Proposed Project Addit ions Conducted 7-8 September 2009,
Technical Report on the Inspection regarding the Expansion of the Project "Improvement of the
Navigability of the San Juan River, p. 1 (NCM, Vol. II, Annex 22); DeclaratioElsa Maria
Vivas Soto of MARENA’s Department of Environmental Quality, 20 December 2010 (hereinafter
“Vivas Declaration”), paras. 6-13 (NCM, Vol. III, Annex 90).
184 5.100 Nor did MARENA simply review and accept uncritically the
documentation submitted by EPN in support of its request for additional
authorization. Rather, MARENA conducted a site visit to evaluate independently
the proposal, how the work would be carried out, and its likely environmental
impacts. It also produced a Technical Report, which included various
recommendations for how the potential environmental impacts of the proposed
additions could be prevented and mitigated, before finally deci ding to authorize
the project additions under certain strict conditions. Indeed, as explained below, as
a result of its EIA process, the caño -cleaning project that MARENA authorized
was different in substantial ways from the work that EPN had originally proposed.
5.101 MARENA conducted its site visit for assessing the environmental
impacts of the proposed additions on 7- 8 September 2009. In particular, two
officials from MARENA’s Department of Environmental Quality accompanied
EPN’s Technical Director on a visit to both the place in the river where the
458
additional dredging was to take place and to (and into) the caño.
5.102 Regarding the inspection of the caño area, according to the
MARENA Specialist in Environmental Management responsible for the
September 2009 site inspection, Engineer Elsa Maria Vivas Soto, the visit was
“mostly performed in a small boat, the starting point being the Harbor Head
458See Report of Site Inspection for Proposed Project Addit ions Conducted 7-8 September 2009,
Technical Report on the Inspection regarding the Expansion of the Project "Improvement of the
Navigability of the San Juan River, p. 1 (NCM, Vol. II, Annex 22); DeclarationElsa Maria
Vivas Soto of MARENA’s Department of Environmental Quality, 20 December 2010 (hereinafter
“Vivas Declaration”), paras. 6-13 (NCM, Vol. III, Annex 90). • The sediments and debris that would be extracted through the manual
cleaning of the caño woul d “not represent any danger to the native
species of the area because the soil is silty, the plant material is
organic, and when it is deposited in another site it would aid in the
natural regeneration of plant species”;
• The limited work would have only low -level and temporary effects on
water quality and would not significantly alter the natural
characteristics of the area (i.e., the River or Harbor Head Lagoon); and
• All activities would be performed under the conditions to be
461
established in the environmental permit.
5.103 The findings of the site visit were reported back to MARENA in a
462
written Technical Report, which explained the details of the additions under
consideration, offered observations (including, e.g., the types of vegetation
present and the dimensions of areas likely to be affected by the proposed
activities), and provided a series of specific recommendations for the prevention
and mitigation of environmental impacts, including:
• That the work be conducted by hand (e.g., with shovels and pickaxes);
461
462bid., para. 11.
See Report of Site Inspection for Proposed Project Additions Conducted 7- 8 September 2009,
Technical Report on the Inspection regarding the Expansion of the Project "Improvement of the
Navigability of the San Juan River, p. 1 (NCM, Vol. II, Annex 22)
186 • The sediments and debris that would be extracted through the manual
cleaning of the caño woul d “not represent any danger to the native
species of the area because the soil is silty, the plant material is
organic, and when it is deposited in another site it would aid in the
natural regeneration of plant species”;
• The limited work would have only low -level and temporary effects on
water quality and would not significantly alter the natural
characteristics of the area (i.e., the River or Harbor Head Lagoon); and
• All activities would be performed under the conditions to be
461
established in the environmental permit.
5.103 The findings of the site visit were reported back to MARENA in a
462
written Technical Report, which explained the details of the additions under
consideration, offered observations (including, e.g., the types of vegetation
present and the dimensions of areas likely to be affected by the proposed
activities), and provided a series of specific recommendations for the prevention
and mitigation of environmental impacts, including:
• That the work be conducted by hand (e.g., with shovels and pickaxes);
461
462Ibid., para. 11.
See Report of Site Inspection for Proposed Project Additions Conducted 7- 8 September 2009,
Technical Report on the Inspection regarding the Expansion of the Project "Improvement of the
Navigability of the San Juan River, p. 1 (NCM, Vol. II, Annex 22) could be performed without causing significant, irreparable impacts to the
environment.
5.105 Regarding the cleaning of the caño specifically, MARENA
determined that there was no reason to conclude it would have a meaningful
impact on the flow, course, or water quality of the San Juan River or other related
waterbodies. MARENA also determined that, in a swampy area like Harbor Head,
where vegetation regenerates quickly, the manual clearing of the plants and debris
obstructing the caño would not have any long -term effects, and that any short -
term impacts could be prevented by requiring the proper disposal of debris and
mitigated by requiring the replacement of any damaged native vegetation.
5.106 Thus, satisfied that the proposed additional work would cause only
short-term, reversible impacts to the environment which, in any case, would be
mitigated through the replacement of native vegetation, on 30 October 2009,
463
MARENA issued Administrative Resolution No. 038- 2008-A1. This resolution
expanded the original dredging project to grant EPN the environmental
authorization for additional Activities No. 1 and No. 2, under the specific
conditions that had been recommended in the Technical Report.
5.107 The fact that Nicaragua conducted an adequate EIA of the proposed
additions to the project is underscored by the fact that the additions it authorized
were not the same as the additions originally proposed by EPN. As noted above,
463
MARENA Administrative Resolution No. 038-2008-A1, 30 October 2009 (NCM, Vol.III,
Annex 34). The permit was received by EPN on 3 November 2009, as indicated by the signature
visible on the bottom of the final page of the Resolution. Seeibid., Spanish Original, p. 4.
188could be performed without causing significant, irreparable impacts to the
environment.
5.105 Regarding the cleaning of the caño specifically, MARENA
determined that there was no reason to conclude it would have a meaningful
impact on the flow, course, or water quality of the San Juan River or other related
waterbodies. MARENA also determined that, in a swampy area like Harbor Head,
where vegetation regenerates quickly, the manual clearing of the plants and debris
obstructing the caño would not have any long -term effects, and that any short -
term impacts could be prevented by requiring the proper disposal of debris and
mitigated by requiring the replacement of any damaged native vegetation.
5.106 Thus, satisfied that the proposed additional work would cause only
short-term, reversible impacts to the environment which, in any case, would be
mitigated through the replacement of native vegetation, on 30 October 2009,
463
MARENA issued Administrative Resolution No. 038- 2008-A1. This resolution
expanded the original dredging project to grant EPN the environmental
authorization for additional Activities No. 1 and No. 2, under the specific
conditions that had been recommended in the Technical Report.
5.107 The fact that Nicaragua conducted an adequate EIA of the proposed
additions to the project is underscored by the fact that the additions it authorized
were not the same as the additions originally proposed by EPN. As noted above,
463
MARENA Administrative Resolution No. 038-2008-A1, 30 October 2009 (NCM, Vol.III,
Annex 34). The permit was received by EPN on 3 November 2009, as indicated by the signature
visible on the bottom of the final page of the Resolution. Seeibid., Spanish Original, p. 4. assessment, and their authorization – like the authorization of the larger dredging
project – was the product of careful environmental evaluation under the applicable
environmental laws and regulations.
(c) No Requirement for a New EIS
5.109 Costa Rica’s claim that Nicaragua failed to satisfy its EIA
obligations under international law with regard to the additions to the project
because it did not prepare an entirely new EIS 469fail just as badly. Simply put,
Nicaraguan law does not require a party who has already produced a technical EIS
for a project that ha s since been authorized by MARENA to repeat every step of
that technical process for supplements or modifications to the larger, already -
authorized project. This does not mean that there is no assessment of
environmental impacts prior to the authorization of additions to larger projects; it
simply means that MARENA is permitted, under the applicable regulations, to
take into account the findings of an existing EIS for the larger, related project, and
to otherwise leverage the knowledge from the EIA process that proceeded the
authorization of that larger project, in assessing the possible environmental
impacts of the proposed additions. That is what MARENA did in this case. The
fact that such an EIA satisfied the applicable Nicaraguan requirements means that
Nicaragua fulfilled its international obligation to assess environmental impacts,
469
See ibid., pp. 243-245, paras. 5.88-5.91.
190assessment, and their authorization – like the authorization of the larger dredging
project – was the product of careful environmental evaluation under the applicable
environmental laws and regulations.
(c) No Requirement for a New EIS
5.109 Costa Rica’s claim that Nicaragua failed to satisfy its EIA
obligations under international law with regard to the additions to the project
because it did not prepare an entirely new EIS 469fail just as badly. Simply put,
Nicaraguan law does not require a party who has already produced a technical EIS
for a project that ha s since been authorized by MARENA to repeat every step of
that technical process for supplements or modifications to the larger, already -
authorized project. This does not mean that there is no assessment of
environmental impacts prior to the authorization of additions to larger projects; it
simply means that MARENA is permitted, under the applicable regulations, to
take into account the findings of an existing EIS for the larger, related project, and
to otherwise leverage the knowledge from the EIA process that proceeded the
authorization of that larger project, in assessing the possible environmental
impacts of the proposed additions. That is what MARENA did in this case. The
fact that such an EIA satisfied the applicable Nicaraguan requirements means that
Nicaragua fulfilled its international obligation to assess environmental impacts,
469
See ibid., pp. 243-245, paras. 5.88-5.91. Nicaragua’s environmental authorities did, in fact, adequately assess the
environmental impact of the project.
5.111 Costas Rica’s present complaints regarding the adequacy of
Nicaragua’s EIA process are striking in light of the words of its own then -Foreign
Minister, Dr. René Castro Salazar, who, in September 2010, reported to the
Environmental Commission of Costa Rica’s Legislative Assembly that he saw“no
major ecological problems in the dredging of the San Juan River that Nicaragua
aims to carry out,” 471in part because Costa Rica’s own models had demonstrated
that Nicaragua’s dredging project “will not produce the alarming e nvironmental
and economic impact that some media have suggested.” 472Indeed, as the Costa
Rican newspaper La Nación reported in September 2010, then- Foreign Minister
Castro – who holds both a degree in civil engineering from the University of
Costa Rica and a Ph.D. from Harvard University where he concentrated on
environmental economics and natural resources – also provided assurances to his
countrymen that “[t]here is an environmental impact study made by Nicaragua,”
47Esteban A. Mata, “Chancellery accepts Nicaraguan plan to dredge San Juan River,” La Nación,
Costa Rica, 8 September 2010, reproduced in “San Juan de Nicaragua River: The Truths that Costa
Rica Hides,” 29 November 2010 (hereinafter “Complete Nicaraguan Whi te Book”), p. 39 (NCM,
Vol. II, Annex 26).
47Statement by Mr. René Castro Salazar, Former Minister of Foreign Affairs and Worship, before
the Environmental Commission of the Legislative Assembly8 September 2010, pp. 5- 6 (NCM,
Vol. II, Annex 24), see also Complete Nicaraguan White Book, p. 39 (NCM, Vol. II, Annex 26).
192Nicaragua’s environmental authorities did, in fact, adequately assess the
environmental impact of the project.
5.111 Costas Rica’s present complaints regarding the adequacy of
Nicaragua’s EIA process are striking in light of the words of its own then -Foreign
Minister, Dr. René Castro Salazar, who, in September 2010, reported to the
Environmental Commission of Costa Rica’s Legislative Assembly that he saw“no
major ecological problems in the dredging of the San Juan River that Nicaragua
aims to carry out,” 471in part because Costa Rica’s own models had demonstrated
that Nicaragua’s dredging project “will not produce the alarming e nvironmental
and economic impact that some media have suggested.” 472Indeed, as the Costa
Rican newspaper La Nación reported in September 2010, then- Foreign Minister
Castro – who holds both a degree in civil engineering from the University of
Costa Rica and a Ph.D. from Harvard University where he concentrated on
environmental economics and natural resources – also provided assurances to his
countrymen that “[t]here is an environmental impact study made by Nicaragua,”
471Esteban A. Mata, “Chancellery accepts Nicaraguan plan to dredge San Juan River,” La Nación,
Costa Rica, 8 September 2010, reproduced in “San Juan de Nicaragua River: The Truths that Costa
Rica Hides,” 29 November 2010 (hereinafter “Complete Nicaraguan Whi te Book”), p. 39 (NCM,
Vol. II, Annex 26).
472Statement by Mr. René Castro Salazar, Former Minister of Foreign Affairs and Worship, before
the Environmental Commission of the Legislative Assembly,8 September 2010, pp. 5- 6 (NCM,
Vol. II, Annex 24), see also Complete Nicaraguan White Book, p. 39 (NCM, Vol. II, Annex 26). C. NICARAGUA BREACHED NO OBLIGATIONS OF
NOTIFICATION OR CONSULTATION
5.114 Costa Rica begins its chapter on Nicaragua’s alleged breaches of
the environmental protection regime with an overview of purported obligations of
Nicaragua to notify and consult with Costa Rica. This overview is of a general,
abstract character, it ignores the Treaty stipulations and the Cleveland Award and
is entirely without reference to the facts of the present case, leading Costa Rica to
jump to conclusions that are entirely unfounded. This response to Costa Ri ca’s
overview will be based only on the authorities cited by Costa Rica and leave aside
the rights of Nicaragua based on the 1858 Treaty and subsequent Awards. As will
be seen, virtually every one of the authorities Costa Rica relies upon in support of
its argument regarding notification and consultation requires as a precondition to
any such obligation the possibility that either significant adverse transboundary
effects may be caused or, in the case of the Ramsar Convention, changes in the
character of the ecosystem concerned may occur. It is clear from section A above
that Nicaragua’s dredging activities do not come close to those thresholds.
Nicaragua would ask that the Court bear this in mind as Costa Rica’s argument is
examined in more detail, below.
5.115 Returning to Costa Rica’s overview, its rehearsal of the award in
the Lake Lanoux arbitration 474(which Costa Rica invokes but does not discuss at
47CRM, p. 200, para. 5.5, citing (1957) 24 ILR 101, 119.
194 C. NICARAGUA BREACHED NO OBLIGATIONS OF
NOTIFICATION OR CONSULTATION
5.114 Costa Rica begins its chapter on Nicaragua’s alleged breaches of
the environmental protection regime with an overview of purported obligations of
Nicaragua to notify and consult with Costa Rica. This overview is of a general,
abstract character, it ignores the Treaty stipulations and the Cleveland Award and
is entirely without reference to the facts of the present case, leading Costa Rica to
jump to conclusions that are entirely unfounded. This response to Costa Ri ca’s
overview will be based only on the authorities cited by Costa Rica and leave aside
the rights of Nicaragua based on the 1858 Treaty and subsequent Awards. As will
be seen, virtually every one of the authorities Costa Rica relies upon in support of
its argument regarding notification and consultation requires as a precondition to
any such obligation the possibility that either significant adverse transboundary
effects may be caused or, in the case of the Ramsar Convention, changes in the
character of the ecosystem concerned may occur. It is clear from section A above
that Nicaragua’s dredging activities do not come close to those thresholds.
Nicaragua would ask that the Court bear this in mind as Costa Rica’s argument is
examined in more detail, below.
5.115 Returning to Costa Rica’s overview, its rehearsal of the award in
the Lake Lanoux arbitration 474(which Costa Rica invokes but does not discuss at
474CRM, p. 200, para. 5.5, citing (1957) 24 ILR 101, 119. Rican territory,” one can only admire the tremendous analytical leap from the
general statements of principle taken from inapposite authorities to the conclusion
drawn without the benefit of any supporting analysis. This is of course to say
nothing of the fact that Costa Rica has not established, and does not establish, that
there actually are “any works on the San Juan which may result in harm to Costa
Rican territory”.
5.118 Costa Rica then proceeds to allege that “further, specific,
obligations to [notify and consult Costa Rica] arise out of the Ramsar Convention
and the Convention on the Conservation of Biodiversity and Protection of Priority
Wildlife Areas in Central America . . . .” However, an examination of the actual
content of the relevant provisions of these instruments in the context of
Nicaragua’s conduct reveals that Nicaragua was, and is, under no such
obligations.
5.119 First, as to the Ramsar C onvention, Nicaragua would begin by
reaffirming its commitment to this agreement, as manifested by the large area of
Nicaraguan territory that the Government has declared to be a Ramsar site (the
Refugio de Vida Silvestre Río San Juan) and, specifically, b y the care taken to
protect that site during the permitting process for the dredging program, as
detailed in Section A, above.
5.120 The convention takes what may be termed a soft approach to
protecting and preserving wetlands of international importance. This i s not
surprising, since the fundamental purpose of the convention is to encourage states
196Rican territory,” one can only admire the tremendous analytical leap from the
general statements of principle taken from inapposite authorities to the conclusion
drawn without the benefit of any supporting analysis. This is of course to say
nothing of the fact that Costa Rica has not established, and does not establish, that
there actually are “any works on the San Juan which may result in harm to Costa
Rican territory”.
5.118 Costa Rica then proceeds to allege that “further, specific,
obligations to [notify and consult Costa Rica] arise out of the Ramsar Convention
and the Convention on the Conservation of Biodiversity and Protection of Priority
Wildlife Areas in Central America . . . .” However, an examination of the actual
content of the relevant provisions of these instruments in the context of
Nicaragua’s conduct reveals that Nicaragua was, and is, under no such
obligations.
5.119 First, as to the Ramsar C onvention, Nicaragua would begin by
reaffirming its commitment to this agreement, as manifested by the large area of
Nicaraguan territory that the Government has declared to be a Ramsar site (the
Refugio de Vida Silvestre Río San Juan) and, specifically, b y the care taken to
protect that site during the permitting process for the dredging program, as
detailed in Section A, above.
5.120 The convention takes what may be termed a soft approach to
protecting and preserving wetlands of international importance. This i s not
surprising, since the fundamental purpose of the convention is to encourage states attempt to show how this provision could apply to the facts of the present case, or
to which of the facts it might apply, Costa Rica suddenly refers to “[t]he
underlying obligation on parties to instruments dealing with environmental issues
that traverse national boundaries . . . that no uni lateral activity can take place on a
site where damage may be inflicted onto a shared ecosystem.” 482
5.123 This breathtaking proposition, which would doubtless come as a
complete surprise to most States, not least to the parties to the Ramsar Convention
in light of the above -quoted Article 2(3) thereof, is entirely unsupported. Costa
Rica does reproduce a passage from the Pulp Mills judgment immediately prior to
stating the proposition, but (a) characterizes it as dealing with Article 36 of the
Uruguay River treaty when in fact it concerns Article 7 of that agreement, relating
to notification rather than to an obligation not to “infli ct [damage] onto a shared
ecosystem,” and (b) does not otherwise show how the passage substantiates Costa
Rica’s sweeping and far-reaching proposition.
5.124 Undaunted, Costa Rica then proceeds to build an elaborate
procedural castle on this foundation of air. Thus, according to Costa Rica,
“[w]here there is a risk that such damage [to a shared ecosystem] may occur, there
is a duty to consult and mitigate.” 483Again, Costa Rica provides no authority to
support this bolt out of the blue, contenting itself with the bare declaration that
“there is” such a duty. Nor does Costa Rica identify the source of the alleged
482Ibid., p. 203, para. 5.12.
483Ibid.
198attempt to show how this provision could apply to the facts of the present case, or
to which of the facts it might apply, Costa Rica suddenly refers to “[t]he
underlying obligation on parties to instruments dealing with environmental issues
that traverse national boundaries . . . that no uni lateral activity can take place on a
site where damage may be inflicted onto a shared ecosystem.” 482
5.123 This breathtaking proposition, which would doubtless come as a
complete surprise to most States, not least to the parties to the Ramsar Convention
in light of the above -quoted Article 2(3) thereof, is entirely unsupported. Costa
Rica does reproduce a passage from the Pulp Mills judgment immediately prior to
stating the proposition, but (a) characterizes it as dealing with Article 36 of the
Uruguay River treaty when in fact it concerns Article 7 of that agreement, relating
to notification rather than to an obligation not to “infli ct [damage] onto a shared
ecosystem,” and (b) does not otherwise show how the passage substantiates Costa
Rica’s sweeping and far-reaching proposition.
5.124 Undaunted, Costa Rica then proceeds to build an elaborate
procedural castle on this foundation of air. Thus, according to Costa Rica,
“[w]here there is a risk that such damage [to a shared ecosystem] may occur, there
is a duty to consult and mitigate.” 483Again, Costa Rica provides no authority to
support this bolt out of the blue, contenting itself with the bare declaration that
“there is” such a duty. Nor does Costa Rica identify the source of the alleged
482Ibid., p. 203, para. 5.12.
483Ibid. 486
any wetland in its territory and included in the List . . . .” Since
according to Nicaragua’s detailed and thorough environmental impact
assessment of the dredging program no such changes to the
“ecological character” of the listed wetland in Nicaraguan territory
has occurred, is occurring or may occur, Nicaragua has no duty to
inform the Ramsar Secretariat, or permanent bureau. It follows that
Costa Rica in fact has no “right to be in turn informed by the Ramsar
Secretariat of these proposed changes . . . as stipulated in Article 3.2
[sic – Article 8(2)(d)]”, contrary to what Costa Rica contends. 487
488
5.126 Turning to the Agreement on the Conservation of Biodiversity,
Costa Rica argues that this treaty “establishes the obligation of information
sharing” in its Article 13(g), which however provides only that the parties
“should” facilitate the exchange of unspecified kinds of information – an
indication, perhaps a guideline, regarding desired behavior, but hardly the
statement of an obligation.
5.127 Costa Rica again dresses up precatory language as an obl igation
when it states that Article 33 of the Agreement (which Costa Rica refers to as the
“Convention”), providing that “[t]he exchange of information, based on
486
487Ramsar Convention, Art. 3(2) (CRM, Vol. II, Annex 14).
488CRM, p. 204, para. 5.12.
Convention for the Conservation of the Biodiversity and Protection of the Main Wild Life Sites
in Central America, Managua, 5 June 1992 (hereinafter “Central American Biodiversity
Convention”) (CRM, Vol. II, Annex 23).
200 486
any wetland in its territory and included in the List . . . .” Since
according to Nicaragua’s detailed and thorough environmental impact
assessment of the dredging program no such changes to the
“ecological character” of the listed wetland in Nicaraguan territory
has occurred, is occurring or may occur, Nicaragua has no duty to
inform the Ramsar Secretariat, or permanent bureau. It follows that
Costa Rica in fact has no “right to be in turn informed by the Ramsar
Secretariat of these proposed changes . . . as stipulated in Article 3.2
[sic – Article 8(2)(d)]”, contrary to what Costa Rica contends. 487
488
5.126 Turning to the Agreement on the Conservation of Biodiversity,
Costa Rica argues that this treaty “establishes the obligation of information
sharing” in its Article 13(g), which however provides only that the parties
“should” facilitate the exchange of unspecified kinds of information – an
indication, perhaps a guideline, regarding desired behavior, but hardly the
statement of an obligation.
5.127 Costa Rica again dresses up precatory language as an obl igation
when it states that Article 33 of the Agreement (which Costa Rica refers to as the
“Convention”), providing that “[t]he exchange of information, based on
486
487Ramsar Convention, Art. 3(2) (CRM, Vol. II, Annex 14).
488CRM, p. 204, para. 5.12.
Convention for the Conservation of the Biodiversity and Protection of the Main Wild Life Sites
in Central America, Managua, 5 June 1992 (hereinafter “Central American Biodiversity
Convention”) (CRM, Vol. II, Annex 23). 494
wetlands and their flora and fauna.” This is hardly an obligation even to
“endeavor” to coordinate with Costa Rica “on planned works”. It is an obligation
to endeavor to coordinate policies and regulations in the field of wetlands, nothing
more.
5.130 Costa Rica further contends that Nicaragua breached Article 5(1)
by failing “to inform the Ramsar Secretariat” of its dredging program “and
495
construction of the artificial caño” – despite the fact that (a) Article 5(1)
contains no obligation to inform the Ramsar Secretariat/permanent bureau, and
even Article 3(2), which Costa Rica does not cite but which actually does
generally address the question, contemplates only provision of information
concerning changes in the “ecological character” of Listed wetlands, as seen
above, of which there will be none as a result of Nicaragua’s dredging program as
shown in Section A above, and (b) the caño in question, as shown in Chapter 6 is
anything but “artificial”.
5.131 Costa Rica then launches into a series of complaints about
Nicaragua’s alleged failure to provide it with information about the dredging
project, beginning in 2006, when the project was still in its early planning stages.
There are two general but sufficient responses to these co mplaints. First, even
assuming, quod non, that there were an obligation to provide such information, it
could not arise until Nicaragua had something concrete of which to notify Costa
494Ibid.
495CRM, p. 206, para. 5.17.
202 494
wetlands and their flora and fauna.” This is hardly an obligation even to
“endeavor” to coordinate with Costa Rica “on planned works”. It is an obligation
to endeavor to coordinate policies and regulations in the field of wetlands, nothing
more.
5.130 Costa Rica further contends that Nicaragua breached Article 5(1)
by failing “to inform the Ramsar Secretariat” of its dredging program “and
495
construction of the artificial caño” – despite the fact that (a) Article 5(1)
contains no obligation to inform the Ramsar Secretariat/permanent bureau, and
even Article 3(2), which Costa Rica does not cite but which actually does
generally address the question, contemplates only provision of information
concerning changes in the “ecological character” of Listed wetlands, as seen
above, of which there will be none as a result of Nicaragua’s dredging program as
shown in Section A above, and (b) the caño in question, as shown in Chapter 6 is
anything but “artificial”.
5.131 Costa Rica then launches into a series of complaints about
Nicaragua’s alleged failure to provide it with information about the dredging
project, beginning in 2006, when the project was still in its early planning stages.
There are two general but sufficient responses to these co mplaints. First, even
assuming, quod non, that there were an obligation to provide such information, it
could not arise until Nicaragua had something concrete of which to notify Costa
494Ibid.
495CRM, p. 206, para. 5.17. to it the available technical and all other relevant information
499
on which the assessment is based.
5.134 Again, as shown in Section A above, Nicaragua’s modest dredging
program entails no “risk of causing significant harm” to Costa Rica, as indicated
in Nicaragua’s EIS. Thus, even assuming this provision were applicable, quod
non, Nicaragua would have no obl igation to provide Costa Rica with “timely
notification of the risk and the assessment” or to “transmit to it the available
technical and all other relevant information on which the assessment is based.”
5.135 Costa Rica also purports to instruct Nicaragua about the need to
conduct an environmental impact assessment, 500when it conducted none itself for
its road project, which entails substantial domestic and transboundary
501
environmental harm as recognized on both sides of the border. But, of course,
as amply demonstrated in Section A above, Nicaragua did in fact conduct an
exhaustive EIA concerning its rather minor dredging program. This EIA revealed
499
Article 8(1) of Draft Articles on Prevention of Transboundary Harm from Hazardous Activities,
Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 159 (emphasis added);
see also the ILC Commentary on the Draft Articles on Prevention of Transboundary Harm from
Hazardous Activities, Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p.
160, commentary on Art. 8, para. 6.
500CRM, p. 208-210, paras. 5.22-525.
501See Nicaragua’s Application of 21 December 2011 in the case concerning Construction of a
Road in Costa Rica along the San Juan River and the many statements from officials and technical
groups in Costa Rica acknowledging the seriousness of the threats posed by the road and the lack
of proper environmental impact assessment preceding its construction, discussed a nd referenced in
Chapter 4.
204 502
that, as Costa Rica’s own study concluded, the dredging project would at most
have only minimal effects on Costa Rica, giving rise to no obligation to notify or
consult with Costa Rica. 503
5.136 Finally, even if Nicaragua were to undertake a dredging program to
return the situation of the river to that existing in 1858, the obligations of
Nicaragua vis a vis Costa Rica would be determined by that Treaty and the
Cleveland Award.
D. NICARAGUA IS IN FULL COMPLIANCE WITH WHAT
COSTA RICA CALLS THE “ENVIRONMENTAL
PROTECTION REGIME”
504
5.137 In a long section of Chapter 5 of its Memorial, Costa Rica
contends that “Nicaragua has breached its obligations in respect of the substantive
environmental protection regime established for the protection of the fragile San
Juan river basin.” 505 This from a State that has ravaged the right bank of the San
Juan River – and as a result, the river itself – through its hastily executed road
project that was launched without any environmental impact assessment or
notification to Nicaragua, whose river bore and continues to bear the brunt of the
project’s impacts.
502See Statement by Mr. René Castro Salazar, Former Minister of Foreign Affairs and Worship,
before the Environmental Commission of the Legislative Assembly,8 September 2010, pp. 5- 6
(NCM, Vol. II, Annex 24).
503
504See Section A, supra.
505CRM, pp. 211-225.
Ibid., p. 211, para. 5.28.
205 5.138 Nicaragua has no difficulty with Costa Rica’s assertion of the
existence of an obligation not to cause transboundary harm. 506 It is in the
application of this principle that Costa Rica runs into difficulty. Indeed, the entire
section on “the environmental protection regime” consists of a recitation of
authorities supporting, in one way or another, the principle just referred to; there
507
is virtually no application of those authorities to the facts. The following section
(“D. Environmental Damage Caused by Nicaragua” 50) is the mirror image: all
facts and no law. This style of argumentation fails to link damage with legal
prohibitions thereof, and thus to establish any breaches of obligations incumbent
upon Nicaragua.
5.139 Nicaragua will show in the following section of this Chapter that its
activities have in fact caused Costa Rica no legally significant environmental
harm and will not do so. The present section will briefly explain why Costa Rica’s
abstract invocation of various authorities is unavailing: even if Costa Rica had
linked the authorities with concrete actions of Nicaragua, no breaches would
result. This response also leaves aside the rights of Nicaragua under the 1858
Treaty and subsequent Awards and analyses the environmental tactics invoked on
their own merits.
506Ibid., p. 211, para. 5.29.
507“Virtually” because occasionally Costa Rica makes a half- hearted attempt to link what it
contends is conduct (or the lack thereof) by Nicaragua with an alleged prohibitory or mandatory
rule, such as in the case of the Ramsar Convention, discussed below. Otherwise, all that can be
found are a few vague references to alleged “obligations” that Costa Rica contends have been
“breached by Nicaragua’s actions, as set out above.” Ibid., p. 218, para. 5.42. Which specific
actions, and where they are set out, are left for conjecture.
508Ibid., p. 226.
206 5.138 Nicaragua has no difficulty with Costa Rica’s assertion of the
existence of an obligation not to cause transboundary harm. 506 It is in the
application of this principle that Costa Rica runs into difficulty. Indeed, the entire
section on “the environmental protection regime” consists of a recitation of
authorities supporting, in one way or another, the principle just referred to; there
507
is virtually no application of those authorities to the facts. The following section
(“D. Environmental Damage Caused by Nicaragua” 50) is the mirror image: all
facts and no law. This style of argumentation fails to link damage with legal
prohibitions thereof, and thus to establish any breaches of obligations incumbent
upon Nicaragua.
5.139 Nicaragua will show in the following section of this Chapter that its
activities have in fact caused Costa Rica no legally significant environmental
harm and will not do so. The present section will briefly explain why Costa Rica’s
abstract invocation of various authorities is unavailing: even if Costa Rica had
linked the authorities with concrete actions of Nicaragua, no breaches would
result. This response also leaves aside the rights of Nicaragua under the 1858
Treaty and subsequent Awards and analyses the environmental tactics invoked on
their own merits.
506Ibid., p. 211, para. 5.29.
507“Virtually” because occasionally Costa Rica makes a half- hearted attempt to link what it
contends is conduct (or the lack thereof) by Nicaragua with an alleged prohibitory or mandatory
rule, such as in the case of the Ramsar Convention, discussed below. Otherwise, all that can be
found are a few vague references to alleged “obligations” that Costa Rica contends have been
“breached by Nicaragua’s actions, as set out above.” Ibid., p. 218, para. 5.42. Which specific
actions, and where they are set out, are left for conjecture.
508Ibid., p. 226. 512
normally look to a treaty’s preamble to ascertain its object and purpose. The
preamble of the Ramsar Convention reads in its entirety as follows:
The Contracting Parties,
RECOGNIZING the interdependence of Man and his environment;
CONSIDERING the fundamental ecological functions of wetlands
as regulators of water regimes and as habitats supporting a
characteristic flora and fauna, especially waterfowl;
BEING CONVINCED that wetlands constitute a resource of grea t
economic, cultural, scientific, and recreational value, the loss of
which would be irreparable;
DESIRING to stem the progressive encroachment on and loss of
wetlands now and in the future;
RECOGNIZING that waterfowl in their seasonal migrations may
transcend frontiers and so should be regarded as an international
resource;
BEING CONFIDENT that the conservation of wetlands and their
flora and fauna can be ensured by combining far -sighted national
policies with co-ordinated international action;
513
Have agreed as follows . . . .
5.143 It is difficult to identify “the” object and purpose of the convention
from these preambular paragraphs. However, it would seem that the conservation
512According to Sir Gerald Fitzmaurice, a special rapporteur for the ILC’s work on the Law of
Treaties:
Although the objects of a treaty may be gathered from its operative
clauses taken as a whole, the preamble is the normal place in which to
embody, and the natural place in which to look for, an express or explicit
general statement of the treaty's objects and purposeWhere these are
stated in the preamble, the latter will, to that extent, govern the whole
treaty..
Sir Gerald Fitzmaurice, "The Law and Procedure of the International Court of Justice 1951 -4:
Treaty Interpretation and other Treaty Points", 33 Brit. Y.B. Int'l L. p. 203, at p. 228 (1957).
513Ramsar Convention, Preamble (CRM, Vol. II, Annex 14).
208 512
normally look to a treaty’s preamble to ascertain its object and purpose. The
preamble of the Ramsar Convention reads in its entirety as follows:
The Contracting Parties,
RECOGNIZING the interdependence of Man and his environment;
CONSIDERING the fundamental ecological functions of wetlands
as regulators of water regimes and as habitats supporting a
characteristic flora and fauna, especially waterfowl;
BEING CONVINCED that wetlands constitute a resource of grea t
economic, cultural, scientific, and recreational value, the loss of
which would be irreparable;
DESIRING to stem the progressive encroachment on and loss of
wetlands now and in the future;
RECOGNIZING that waterfowl in their seasonal migrations may
transcend frontiers and so should be regarded as an international
resource;
BEING CONFIDENT that the conservation of wetlands and their
flora and fauna can be ensured by combining far -sighted national
policies with co-ordinated international action;
513
Have agreed as follows . . . .
5.143 It is difficult to identify “the” object and purpose of the convention
from these preambular paragraphs. However, it would seem that the conservation
512According to Sir Gerald Fitzmaurice, a special rapporteur for the ILC’s work on the Law of
Treaties:
Although the objects of a treaty may be gathered from its operative
clauses taken as a whole, the preamble is the normal place in which to
embody, and the natural place in which to look for, an express or explicit
general statement of the treaty's objects and purposeWhere these are
stated in the preamble, the latter will, to that extent, govern the whole
treaty..
Sir Gerald Fitzmaurice, "The Law and Procedure of the International Court of Justice 1951 -4:
Treaty Interpretation and other Treaty Points", 33 Brit. Y.B. Int'l L. p. 203, at p. 228 (1957).
513Ramsar Convention, Preamble (CRM, Vol. II, Annex 14). • “[F]elling of primary forest” was actually the removal of individual
trees, not a “forest”, an activity necessary to the clearing of
navigational obstructions from the channel, or caño, that marks the
border, and as explained earlier, one that, due to Nicaraguan legal
requirements noted in Section 1, resulted in the replacement of ev ery
tree felled by 10 new ones of species native to the area; the need to
navigate through a wetland is an example of “the interdependence of
Man and his environment” mentioned in the convention’s first
preambular paragraph; and
• The reference to “the const ruction of an artificial caño through a
Ramsar protected site located on foreign territory” is pure fabrication
in several respects, including that the caño was “construct[ed]”, that it
is “artificial”, and that the “Ramsar protected site” through which it
runs is “located on foreign territory”. In summary, the caño is natural,
not artificial, as demonstrated in Chapter 6, and only the portion of
Costa Rica’s Humedal Caribe Noreste abutting the right bank of the
caño is in “foreign territory”.
5.145 As to actual breaches, Costa Rica attempts to identify only one, to
wit, Nicaragua’s alleged “fail[ure] to notify the Ramsar Secretariat of its intention
to undertake [the] works [in question] and of their estimated impact on those
210 • “[F]elling of primary forest” was actually the removal of individual
trees, not a “forest”, an activity necessary to the clearing of
navigational obstructions from the channel, or caño, that marks the
border, and as explained earlier, one that, due to Nicaraguan legal
requirements noted in Section 1, resulted in the replacement of ev ery
tree felled by 10 new ones of species native to the area; the need to
navigate through a wetland is an example of “the interdependence of
Man and his environment” mentioned in the convention’s first
preambular paragraph; and
• The reference to “the const ruction of an artificial caño through a
Ramsar protected site located on foreign territory” is pure fabrication
in several respects, including that the caño was “construct[ed]”, that it
is “artificial”, and that the “Ramsar protected site” through which it
runs is “located on foreign territory”. In summary, the caño is natural,
not artificial, as demonstrated in Chapter 6, and only the portion of
Costa Rica’s Humedal Caribe Noreste abutting the right bank of the
caño is in “foreign territory”.
5.145 As to actual breaches, Costa Rica attempts to identify only one, to
wit, Nicaragua’s alleged “fail[ure] to notify the Ramsar Secretariat of its intention
to undertake [the] works [in question] and of their estimated impact on those obligation, for good reason: none is to be found in the convention. Nor is any
recommendation to that effect to be found there. As explained in Section A of
this chapter, Nicaragua’s own laws require just such minimization of or
compensation for any adverse impacts, let alone “damage”, that might be caused
by a proposed project, and such was in fact required in respect of the proposed
dredging project. There was no need to consult with the Ramsar Secretariat
concerning these measures that Nicaragua had already undertaken.
2. Nicaragua Is in Full Compliance with the SI-A-PAZ and
Central American Biodiversity Agreements
5.149 Costa Rica then turns to the “SI -A-PAZ” agreement 519and the
Convention on the Conservation of Biodiversity and Protection of Priority
Wildlife Areas in Central America. 520 These two regional agreements represent
worthy efforts to establish an international system of protected areas and to
protect biological diversity and priority wildlife areas, respectively. Given the
stark difference in levels of development of the left (Nicaraguan) and right (Costa
Rican) banks of the San Juan River, punctuated with an exclamation point by
Costa Rica’s new and environmentally disastrous road, it is difficult to see from
even the most casual observation how Nicaragua could be in breach of either of
these agreements and Costa Rica not.
519Agreement over the Border Protected Areas between Costa Rica and Nicaragua (International
System of Protected Areas for Peace [SI-A-PAZ] Agreement), Puntarenas ,15 December 1990
(hereinafter “SI-A-PAZ Agreement”) (CRM, Vol. II, Annex 22).
520Central American Biodiversity Convention, (CRM, Vol. II, Annex 23). The title of the
convention is translated in two different ways in the Annex.
212obligation, for good reason: none is to be found in the convention. Nor is any
recommendation to that effect to be found there. As explained in Section A of
this chapter, Nicaragua’s own laws require just such minimization of or
compensation for any adverse impacts, let alone “damage”, that might be caused
by a proposed project, and such was in fact required in respect of the proposed
dredging project. There was no need to consult with the Ramsar Secretariat
concerning these measures that Nicaragua had already undertaken.
2. Nicaragua Is in Full Compliance with the SI-A-PAZ and
Central American Biodiversity Agreements
5.149 Costa Rica then turns to the “SI -A-PAZ” agreement 519 and the
Convention on the Conservation of Biodiversity and Protection of Priority
Wildlife Areas in Central America. 520These two regional agreements represent
worthy efforts to establish an international system of protected areas and to
protect biological diversity and priority wildlife areas, respectively. Given the
stark difference in levels of development of the left (Nicaraguan) and right (Costa
Rican) banks of the San Juan River, punctuated with an exclamation point by
Costa Rica’s new and environmentally disastrous road, it is difficult to see from
even the most casual observation how Nicaragua could be in breach of either of
these agreements and Costa Rica not.
519Agreement over the Border Protected Areas between Costa Rica and Nicaragua (International
System of Protected Areas for Peace [SI-A-PAZ] Agreement), Puntarenas ,15 December 1990
(hereinafter “SI-A-PAZ Agreement”) (CRM, Vol. II, Annex 22).
520Central American Biodiversity Convention, (CRM, Vol. II, Annex 23). The title of the
convention is translated in two different ways in the Annex. obligation has been breached by Nicaragua’s actions, as set out
523
above.
5.152 It is as if Costa Rica were reading a different text than the one
contained in its Annex. Even if, quod non, Nicaragua were carrying out activities
of the kind referred to by Costa Rica, this would breach no provision of the SI -A-
PAZ agreement. But, of course, Nicaragua is not carrying out such activities.
The discussion of Nicaragua’s EIS proces s regarding the dredging program in
Section A above should lay to rest any notion that Nicaragua would proceed
blindly ahead with development projects with no regard for the environment – as
Costa Rica has done, entirely unabashedly, with its road project.
5.153 Furthermore, Costa Rica continues to play fast and loose with the
content of international agreements when it says “[t]his obligation has been
breached by Nicaragua’s actions, as set out above.” No obligation under the
agreement is identified – understandably, since there is none – and the specific
actions of Nicaragua that are alleged to have breached this mythical obligation
are, once again, left for conjecture.
5.154 Costa Rica continues this approach in its deployment of the Central
American Biodiversity Co nvention. 524This instrument reads more like a modern
environmental agreement, but like such treaties, builds in considerable flexibility
regarding the obligations it contains. Those obligations are of a highly general
nature, which is appropriate for an agr eement of this character. Costa Rica’s
523CRM, p. 218, para. 5.42.
524Ibid., pp. 218-219, paras. 5.43-5.45.
214 obligation has been breached by Nicaragua’s actions, as set out
523
above.
5.152 It is as if Costa Rica were reading a different text than the one
contained in its Annex. Even if, quod non, Nicaragua were carrying out activities
of the kind referred to by Costa Rica, this would breach no provision of the SI -A-
PAZ agreement. But, of course, Nicaragua is not carrying out such activities.
The discussion of Nicaragua’s EIS proces s regarding the dredging program in
Section A above should lay to rest any notion that Nicaragua would proceed
blindly ahead with development projects with no regard for the environment – as
Costa Rica has done, entirely unabashedly, with its road project.
5.153 Furthermore, Costa Rica continues to play fast and loose with the
content of international agreements when it says “[t]his obligation has been
breached by Nicaragua’s actions, as set out above.” No obligation under the
agreement is identified – understandably, since there is none – and the specific
actions of Nicaragua that are alleged to have breached this mythical obligation
are, once again, left for conjecture.
5.154 Costa Rica continues this approach in its deployment of the Central
American Biodiversity Co nvention. 524This instrument reads more like a modern
environmental agreement, but like such treaties, builds in considerable flexibility
regarding the obligations it contains. Those obligations are of a highly general
nature, which is appropriate for an agr eement of this character. Costa Rica’s
523CRM, p. 218, para. 5.42.
524Ibid., pp. 218-219, paras. 5.43-5.45. 5.157 The net effect of these and other provisions of the agreement is a
general and commendable intention to conserve biodiversity and protect priority
wildlife areas in Central America. The agreement’s generality and flexibility
make it unsurprising that Costa Rica fails to identify a specific alleged breach of
this treaty by Nicaragua. Instead, Costa Rica contents itself with the following
paragraph, which concludes the section of its Memorial on “The Environmental
Protection Regime”:
It is clear that a significant regime of substantive environmental
protection exists, a regime which Nicaragua is obliged to give
effect to. However, it is clear – for the reasons already given – that
527
Nicaragua has failed in its obligations in this respect.
5.158 This is the sum total of what Costa Rica is able to identify to this
point in respect of alleged Nicaraguan breaches of “the environmental protection
regime”. Once again, there are no references to concrete Nicaraguan actions or
alleged failures to act. There is not even a reference to the concrete “obligations”
Nicaragua is alleged to have breached. It may only be concluded from this
section of the Memorial that Nicaragua has committed no breaches at all of these
aspects of the “environmental protection regime” laid out by Costa Rica.
3. Nicaragua’s Activities Are Fully Consistent with the Treaty of
Limits as Interpreted by the Cleveland Award
5.159 The final part of Costa Rica’s discussion of “the environmental
protection regime” is devoted to the “Treaty of Limits as interpreted by the
527Ibid., p. 219, para. 5.46.
216 5.157 The net effect of these and other provisions of the agreement is a
general and commendable intention to conserve biodiversity and protect priority
wildlife areas in Central America. The agreement’s generality and flexibility
make it unsurprising that Costa Rica fails to identify a specific alleged breach of
this treaty by Nicaragua. Instead, Costa Rica contents itself with the following
paragraph, which concludes the section of its Memorial on “The Environmental
Protection Regime”:
It is clear that a significant regime of substantive environmental
protection exists, a regime which Nicaragua is obliged to give
effect to. However, it is clear – for the reasons already given – that
527
Nicaragua has failed in its obligations in this respect.
5.158 This is the sum total of what Costa Rica is able to identify to this
point in respect of alleged Nicaraguan breaches of “the environmental protection
regime”. Once again, there are no references to concrete Nicaraguan actions or
alleged failures to act. There is not even a reference to the concrete “obligations”
Nicaragua is alleged to have breached. It may only be concluded from this
section of the Memorial that Nicaragua has committed no breaches at all of these
aspects of the “environmental protection regime” laid out by Costa Rica.
3. Nicaragua’s Activities Are Fully Consistent with the Treaty of
Limits as Interpreted by the Cleveland Award
5.159 The final part of Costa Rica’s discussion of “the environmental
protection regime” is devoted to the “Treaty of Limits as interpreted by the
527Ibid., p. 219, para. 5.46. Costa Rica made the same argument in the Cleveland arbitration in response to a
set of Nicar agua’s questions concerning points of doubtful interpretation.
President Cleveland clearly and emphatically rejected Costa Rica’s argument. 533
Since this history sheds light on the nature and validity of Costa Rica’s
contentions in the present case it will be briefly recapitulated in the following
paragraphs.
5.162 Nicaragua’s sixth point of doubtful interpretation was as follows:
6. Can Costa Rica prevent Nicaragua from executing, at her own
expense, the works of improvement? Or, shall she have any right to
demand indemnification for the places belonging to her on the
right bank which may be flooded or damaged in any other way in
534
consequence of the said works?
5.163 Costa Rica’s written response to this question is illuminating:
Referring now to Interrogatory No. 6, I shall state positively that
Costa Rica has the right to prevent Nicaragua from executing, at
her own cost, the works to which she alludes, whenever undertaken
without consideration of the rights which belong to Costa Rica . . ..
Costa Rica can, therefor e, prevent any place on the river bank
which belongs to her from being occupied. And to prevent one
thing from being done is something more than asking
indemnification for the occupation and for the damages done in
consequence thereof, whether through the flooding of lands, or by
destruction of the river front, or for any other reason.
extreme solutions . . . .” Lake Lanoux Arbitration (France v. Spain) , Award, 16 November 1957,
International Law Reports, Vol. 24, p. 128, para. 11.
533See infra, paras. 4.38 – 4.40.
534 Whether Costa Rica is bound to co -operate in the preservation and improvement of the san
Juan river and the Bay of San Juan, and in what manner; and whether Nicaragua can undertake any
work without considering the injury which may result to Costa Rica. Argument on the Question of
the validity of the Treaty of Limits between Costa Rica and Nicaragua and other supplementary
points connected with it, Washington, Gibson Bros., 1887, p. 167 (NCM, Vol. II, Annex 5).
218Costa Rica made the same argument in the Cleveland arbitration in response to a
set of Nicar agua’s questions concerning points of doubtful interpretation.
President Cleveland clearly and emphatically rejected Costa Rica’s argument. 533
Since this history sheds light on the nature and validity of Costa Rica’s
contentions in the present case it will be briefly recapitulated in the following
paragraphs.
5.162 Nicaragua’s sixth point of doubtful interpretation was as follows:
6. Can Costa Rica prevent Nicaragua from executing, at her own
expense, the works of improvement? Or, shall she have any right to
demand indemnification for the places belonging to her on the
right bank which may be flooded or damaged in any other way in
534
consequence of the said works?
5.163 Costa Rica’s written response to this question is illuminating:
Referring now to Interrogatory No. 6, I shall state positively that
Costa Rica has the right to prevent Nicaragua from executing, at
her own cost, the works to which she alludes, whenever undertaken
without consideration of the rights which belong to Costa Rica . . ..
Costa Rica can, therefor e, prevent any place on the river bank
which belongs to her from being occupied. And to prevent one
thing from being done is something more than asking
indemnification for the occupation and for the damages done in
consequence thereof, whether through the flooding of lands, or by
destruction of the river front, or for any other reason.
extreme solutions . . . .” Lake Lanoux Arbitration (France v. Spain) , Award, 16 November 1957,
International Law Reports, Vol. 24, p. 128, para. 11.
533See infra, paras. 4.38 – 4.40.
534 Whether Costa Rica is bound to co -operate in the preservation and improvement of the san
Juan river and the Bay of San Juan, and in what manner; and whether Nicaragua can undertake any
work without considering the injury which may result to Costa Rica. Argument on the Question of
the validity of the Treaty of Limits between Costa Rica and Nicaragua and other supplementary
points connected with it, Washington, Gibson Bros., 1887, p. 167 (NCM, Vol. II, Annex 5). 5.166 “The Republic of Costa Rica cannot prevent the Republic of
Nicaragua from executing . . . works of improvement . . . .” Nothing could be
clearer. But Costa Rica clearly cannot tolerate this idea, because it goes to great
pains to interpret the word “provided” in President Cleveland’s ruling effectively
to mean “prevent”: “President Cleveland’s emphatic use of the word ‘provided’ is
crucial; it refers to the preconditions underpinning Nicaragua’s right to execute
538
works of improvement on the San Juan.” There follows a litany of definitions
of the word “provided”, which shed no new light on a question that was not in
539
doubt in the first place.
5.167 Costa Rica characterizes Nicaragua’s position as though it were
that Nicaragua can cause harm to Costa Rica through its works of improvement,
anywhere, at any time, and to any extent, so long as Nicaragua pays for it:
“Nicaragua contends that it has the right to inflict harm, ‘buying it off’ with the
540
payment of compensation.” Nicaragua has n ever contended that it had carte
blanche to cause unlimited harm to Costa Rica so long as indemnification was
provided. The position is much more straightforward than that, and is described
so precisely in President Cleveland’s response to Nicaragua’s six th question that
no further explanation is needed.
5.168 But such is Costa Rica’s fear of Nicaragua’s modest dredging
program that Costa Rica cannot help but resort to utter hyperbole:
538CRM, p. 221, para. 5.49.
539Ibid., p. 221, para. 5.50.
540Ibid., p. 222, para. 5.52.
220 5.166 “The Republic of Costa Rica cannot prevent the Republic of
Nicaragua from executing . . . works of improvement . . . .” Nothing could be
clearer. But Costa Rica clearly cannot tolerate this idea, because it goes to great
pains to interpret the word “provided” in President Cleveland’s ruling effectively
to mean “prevent”: “President Cleveland’s emphatic use of the word ‘provided’ is
crucial; it refers to the preconditions underpinning Nicaragua’s right to execute
538
works of improvement on the San Juan.” There follows a litany of definitions
of the word “provided”, which shed no new light on a question that was not in
539
doubt in the first place.
5.167 Costa Rica characterizes Nicaragua’s position as though it were
that Nicaragua can cause harm to Costa Rica through its works of improvement,
anywhere, at any time, and to any extent, so long as Nicaragua pays for it:
“Nicaragua contends that it has the right to inflict harm, ‘buying it off’ with the
540
payment of compensation.” Nicaragua has n ever contended that it had carte
blanche to cause unlimited harm to Costa Rica so long as indemnification was
provided. The position is much more straightforward than that, and is described
so precisely in President Cleveland’s response to Nicaragua’s six th question that
no further explanation is needed.
5.168 But such is Costa Rica’s fear of Nicaragua’s modest dredging
program that Costa Rica cannot help but resort to utter hyperbole:
538CRM, p. 221, para. 5.49.
539Ibid., p. 221, para. 5.50.
540Ibid., p. 222, para. 5.52. emphasis being placed on hypothetical future risks that, it is alleged, might come
into being if certain unplanned eventualities were to occur.
5.171 In reality, Nicaragua’s activities are modest in scope. They have
not caused Costa Rica any harm, and they will not do so in the future.
1. The Dredging Project
5.172 Costa Rica is mistaken when it alleges that Nicaragua’s dredging
program did not “comply with its own technical and procedural requirements
pertaining to environmental protection.” 543To the contrary, Nicaragua’s activities
in and around the San Juan River have been conducted in full compliance with the
applicable environmental laws and authorizati ons. Indeed, EPN has exceeded the
environmental requirements contained in its environmental authorizations, having
by January 2012 planted 15,390 new native plants on the Nicaraguan side of the
River, which is 183% of the reforestation required under the permits. 544 This
reforestation is aimed at helping to reinforce the banks of the San Juan River in
order to prevent future erosion and sedimentation. 545
(a) Reduced Scope of the Dredging Project
5.173 As described in Chapter 4, Nicaragua is entitled under the lex
specialis regime governing the San Juan River to undertake a dredging program
sufficient in scope to recover the navigability of the Lower San Juan as it existed
543
Ibid., p. 108, para. 3.82.
544EPN 2011 Annual Report, p. 23 (NCM, Vol. II , Annex 17).
545See Environmental Impact Study, pp. 173-174, 195-196 & 222-223 (NCM, Vol. II, Annex 7).
222emphasis being placed on hypothetical future risks that, it is alleged, might come
into being if certain unplanned eventualities were to occur.
5.171 In reality, Nicaragua’s activities are modest in scope. They have
not caused Costa Rica any harm, and they will not do so in the future.
1. The Dredging Project
5.172 Costa Rica is mistaken when it alleges that Nicaragua’s dredging
program did not “comply with its own technical and procedural requirements
pertaining to environmental protection.” 543To the contrary, Nicaragua’s activities
in and around the San Juan River have been conducted in full compliance with the
applicable environmental laws and authorizati ons. Indeed, EPN has exceeded the
environmental requirements contained in its environmental authorizations, having
by January 2012 planted 15,390 new native plants on the Nicaraguan side of the
River, which is 183% of the reforestation required under the permits. 544 This
reforestation is aimed at helping to reinforce the banks of the San Juan River in
order to prevent future erosion and sedimentation. 545
(a) Reduced Scope of the Dredging Project
5.173 As described in Chapter 4, Nicaragua is entitled under the lex
specialis regime governing the San Juan River to undertake a dredging program
sufficient in scope to recover the navigability of the Lower San Juan as it existed
543
Ibid., p. 108, para. 3.82.
544EPN 2011 Annual Report, p. 23 (NCM, Vol. II , Annex 17).
545See Environmental Impact Study, pp. 173-174, 195-196 & 222-223 (NCM, Vol. II, Annex 7). one that was estimated to result in 1.5 million to some 942,000 m 3 of extracted
549
sediments.
5.175 Since then, the scope of the project has been reduced even further.
As EPN has explained, “[d]ue to the high cost of dredging forty -two kilometers,
as defined in studies [prepared] by [CORASCO] in 2006, and aware that ensuring
navigability for small- and medium-sized vessels was a priority at this stage of the
Project, plans were made for dredging only the most critical stretches”. 550 Those
specific, critical stretches are eight sites between the Delta and San Juanillo, a
distance of 22 kilometers, numbered and indicated in red on the following map
from EPN’s 2011 Annual Report (see Figure5.3.).
549Declaration of Lester Antonio Quintero Gomez, Technical Manager of EPN, 16 December
2010, paras. 10-11 (CRM, Vol. IV, Annex 164). See also CR 2011/2, p. 17, para. 40 (Argüello);
5502011/4, p. 17, para. 10 (Reichler).
EPN 2011 Annual Report, p. 6 (NCM, Vol. II, Annex 17).
224one that was estimated to result in 1.5 million to some 942,000 m 3 of extracted
549
sediments.
5.175 Since then, the scope of the project has been reduced even further.
As EPN has explained, “[d]ue to the high cost of dredging forty -two kilometers,
as defined in studies [prepared] by [CORASCO] in 2006, and aware that ensuring
navigability for small- and medium-sized vessels was a priority at this stage of the
550
Project, plans were made for dredging only the most critical stretches”. Those
specific, critical stretches are eight sites between the Delta and San Juanillo, a
distance of 22 kilometers, numbered and indicated in red on the following map
from EPN’s 2011 Annual Report (see Figure5.3.).
involve the extraction of only 395,395.02 m3 of dredged sediments from the eight
most critical stretches of the Lower San Juan.
reduced by over 70% since its authorization by MARENA. According to a
supplemental report by Professors Cees van Rhee and Huib de Vriend of the Delft
University of Technology, “Nicaragua’s dredging program is of extremely small
scale. The effect on the river discharge and morphology will be negligible and
orders of magnitude less than natural variations in river flow.”
549Declaration of Lester Antonio Quintero Gomez, Technical Manager of EPN, 16 December
2010, paras. 10-11 (CRM, Vol. IV, Annex 164). See also CR 2011/2, p. 17, para. 40 (Argüello); 551
CR 2011/4, p. 17, para. 10 (Reichler). 552
550 553
EPN 2011 Annual Report, p. 6 (NCM, Vol. II, Annex 17). basis for Costa Rica’s characterization of Nicaragua’s works as a “significant
554
dredging operation.”
555
5.177 Costa Rica’s reliance on the report of Professor Colin Thorne
provides it with no assist ance. Professor Thorne criticizes the expert report
prepared by Professors van Rhee and de Vriend in January 2011, which was
submitted to the Court prior to the oral hearings on the issue of provisional
measures. That report concluded that Nicaragua’s dredging program was likely to
increase the flow of the Lower San Juan River by only 20- 50 m3/second. 556
According to Professor Thorne, a “more accurate prediction” could be produced
through the use of a hydraulic model, rather than the equations utilized by
Professors van Rhee and de Vriend. 557 Professor Thorne proceeds to explain that
he has run a “HEC -RAS model” for “three scenarios representing the effects of
enlarging the channel of the Río San Juan downstream of the Delta through
558
dredging.” He then stat es that the results support the conclusion that
Nicaragua’s dredging program will alter the flow regime more than reported by
Professors van Rhee and de Vriend in January 2011. 559
5.178 Professor Thorne’s analysis is incorrect. As Professors van Rhee
and de Vriend explain, the “criticisms are without foundation, and the conclusions
554
555CRM, p. 256, para. 5.112.
See ibid.
5562011 Van Rhee & De Vriend Report , p.8 (NCM, Vol. IV, Annex 114) See also Thorne,
p. II- 3.
557Thorne, p. II-35.
558
559Ibid., pp. II-35-36.
See ibid., p. II-36.
226basis for Costa Rica’s characterization of Nicaragua’s works as a “significant
554
dredging operation.”
555
5.177 Costa Rica’s reliance on the report of Professor Colin Thorne
provides it with no assist ance. Professor Thorne criticizes the expert report
prepared by Professors van Rhee and de Vriend in January 2011, which was
submitted to the Court prior to the oral hearings on the issue of provisional
measures. That report concluded that Nicaragua’s dredging program was likely to
increase the flow of the Lower San Juan River by only 20- 50 m3/second. 556
According to Professor Thorne, a “more accurate prediction” could be produced
through the use of a hydraulic model, rather than the equations utilized by
Professors van Rhee and de Vriend. 557 Professor Thorne proceeds to explain that
he has run a “HEC -RAS model” for “three scenarios representing the effects of
enlarging the channel of the Río San Juan downstream of the Delta through
558
dredging.” He then stat es that the results support the conclusion that
Nicaragua’s dredging program will alter the flow regime more than reported by
Professors van Rhee and de Vriend in January 2011. 559
5.178 Professor Thorne’s analysis is incorrect. As Professors van Rhee
and de Vriend explain, the “criticisms are without foundation, and the conclusions
554
555CRM, p. 256, para. 5.112.
See ibid.
5562011 Van Rhee & De Vriend Report , p.8 (NCM, Vol. IV, Annex 114) See also Thorne,
p. II- 3.
557Thorne, p. II-35.
558
559Ibid., pp. II-35-36.
See ibid., p. II-36. Dredging Depth Width Discharge
Scenario
[m] [m] [m /s]
Original Situation 4.75 90 287.4
Thorne Scenario 1 5.75 120 368.26
Thorne Scenario 2 6.75 150 440.12
Thorne Scenario 3 7.75 180 502.99
563
Depth and Width of Thorne’s Dredging Scenarios
5.180 As this table makes clear, Professor Thorne has assumed that
Nicaragua’s dredging efforts will involve the dredging of much wider navigation
channels, and even the widening of the river that now exists. Indeed, Professor
Thorne’s results depend on the assumption that the river will be deepened over its
total width, which will itself be substantially enlarged. As Professors van Rhee
and de Vriend explain, “[f]or a deepening of 1 m, (Thorne Scenario 1), he
assumes that the total width of the river will be increased by 30 m (i.e., from 90 m
to 120 m), whereas for the 3 m deepening (Thorne Scenario 3) the total width of
the river will be doubled, from the original 90 m to 180 m, with the entire width
being dredged to a depth of 3 m.” 564
5.181 It is not surprising that Profess or Thorne’s assumption of much
larger dredging projects resulted in calculations of more increased flow in the
Lower San Juan River. What may be surprising, however, is that the HEC -RAS
5632012 Van Rhee & De Vriend Supplemental Report, Chapter 2.1, Table 1 (Appendix 2).
56Ibid., Chapter 2.1.
228 Dredging Depth Width Discharge
Scenario
[m] [m] [m /s]
Original Situation 4.75 90 287.4
Thorne Scenario 1 5.75 120 368.26
Thorne Scenario 2 6.75 150 440.12
Thorne Scenario 3 7.75 180 502.99
563
Depth and Width of Thorne’s Dredging Scenarios
5.180 As this table makes clear, Professor Thorne has assumed that
Nicaragua’s dredging efforts will involve the dredging of much wider navigation
channels, and even the widening of the river that now exists. Indeed, Professor
Thorne’s results depend on the assumption that the river will be deepened over its
total width, which will itself be substantially enlarged. As Professors van Rhee
and de Vriend explain, “[f]or a deepening of 1 m, (Thorne Scenario 1), he
assumes that the total width of the river will be increased by 30 m (i.e., from 90 m
to 120 m), whereas for the 3 m deepening (Thorne Scenario 3) the total width of
the river will be doubled, from the original 90 m to 180 m, with the entire width
being dredged to a depth of 3 m.” 564
5.181 It is not surprising that Profess or Thorne’s assumption of much
larger dredging projects resulted in calculations of more increased flow in the
Lower San Juan River. What may be surprising, however, is that the HEC -RAS
563 2012 Van Rhee & De Vriend Supplemental Report, Chapter 2.1, Table 1 (Appendix 2).
564Ibid., Chapter 2.1. operation of only one dredge.” 567 As Nicaragua explained to the Court in January
2011, due to financial constraints and its consequent decision to scale down the
scope of the project, EPN modified the project to use smaller dredges available in
568
Nicaragua instead of purchasing larger and more expensive ones from abroad.
That is, instead of the foreign- built dredges EPN had hoped to import when
preparing the EIS, it switched to much smaller, domestic dredges because the
foreign ones were too expensive. 569 As of January 2011, EPN’s plan was to utilize
570
three dredges with a combined maximum capacity of 575 m3/hour, as
compared with the wide range of dredges discussed in the EIS, which would have
571
had a capacity of between 200 and 2,000 m3/hour. Dredging exp erts,
Professors van Rhee and de Vriend of the Delft University of Technology,
concluded in January 2011, based on those figures and the technical descriptions
of the related dredges, that the dredging project – as defined in January 2011 –
was “of a very small scale compared to the large Dutch dredging contractors
currently working globally with hourly productions of more than 10,000
m3/hour.” 572
567CRM, pp. 252, 253, para. 5.108; see also pp. 108-109, para. 3.82.
568Declaration of Lester Antonio Quintero Gomez, Technical Manager of EP N, 16 December
5690, para. 12 (CRM, Vol. IV, Annex 164).
570Ibid.
Ibid., paras. 12-13 & Annex 4 thereto providing dredge specifications, omitted from the version
of the document submitted by Costa Rica but submitted herewith (NCM, Vol. II, Annex 15).
5712012 Van Rhee & De Vriend Supplemental Report, Chapter 2.2, including Table 3 (Appendix
2).
572
2011 Van Rhee & De Vriend Report, p. 3 (NCM, Vol. IV, Annex 114).
230operation of only one dredge.” 567As Nicaragua explained to the Court in January
2011, due to financial constraints and its consequent decision to scale down the
scope of the project, EPN modified the project to use smaller dredges available in
568
Nicaragua instead of purchasing larger and more expensive ones from abroad.
That is, instead of the foreign- built dredges EPN had hoped to import when
preparing the EIS, it switched to much smaller, domestic dredges because the
foreign ones were too expensive. 569 As of January 2011, EPN’s plan was to utilize
570
three dredges with a combined maximum capacity of 575 m3/hour, as
compared with the wide range of dredges discussed in the EIS, which would have
571
had a capacity of between 200 and 2,000 m3/hour. Dredging exp erts,
Professors van Rhee and de Vriend of the Delft University of Technology,
concluded in January 2011, based on those figures and the technical descriptions
of the related dredges, that the dredging project – as defined in January 2011 –
was “of a very small scale compared to the large Dutch dredging contractors
currently working globally with hourly productions of more than 10,000
m3/hour.” 572
567CRM, pp. 252, 253, para. 5.108; see also pp. 108-109, para. 3.82.
568Declaration of Lester Antonio Quintero Gomez, Technical Manager of EP N, 16 December
5690, para. 12 (CRM, Vol. IV, Annex 164).
570Ibid.
Ibid., paras. 12-13 & Annex 4 thereto providing dredge specifications, omitted from the version
of the document submitted by Costa Rica but submitted herewith (NCM, Vol. II, Annex 15).
5712012 Van Rhee & De Vriend Supplemental Report, Chapter 2.2, including Table 3 (Appendix
2).
572
2011 Van Rhee & De Vriend Report, p. 3 (NCM, Vol. IV, Annex 114). its maintenance involves high costs, and it has been difficult for EPN to locate
580
necessary replacement parts in the international marketplace.
5.187 Nicaragua’s third dredge arrived in San Juan de Nicaragua for
assembly in April 2011. From the beginning, the machine presented problems,
particularly with the operation of its dredge pump. The dredge was rebuilt in
order to improve the operation of its hydraulic system. However, the dredge
presented renewed mechanical problems in December 2011 and, as of January
581
2012, was being repaired in San Juan de Nicaragua. EPN has decided that it is
not useful for the dredging of the San Juan River. In dredging attempted near
deposit site No. 18, the dredge produced low dredge yields: no more than 10.0
582
m3/hour. Moreover, the dredge cannot expel dredged material more than 120
meters, cut strips over 3.6 meters, or advance in anything other than a straight
line.583
5.188 In light of these difficulties, only the two comparatively larger
584
dredges have actually been used with any frequency. They have a combined
capacity of 420 m3/hour when both are functioning optimally (which is often not
the case). This is significantly lower than the 575 m3/hour capacity that
580Ibid., p. 9.
581Ibid., p. 12.
582
583Ibid., pp. 7 & 12.
584Ibid., p. 13.
Ibid., pp. 12-14.
232its maintenance involves high costs, and it has been difficult for EPN to locate
580
necessary replacement parts in the international marketplace.
5.187 Nicaragua’s third dredge arrived in San Juan de Nicaragua for
assembly in April 2011. From the beginning, the machine presented problems,
particularly with the operation of its dredge pump. The dredge was rebuilt in
order to improve the operation of its hydraulic system. However, the dredge
presented renewed mechanical problems in December 2011 and, as of January
581
2012, was being repaired in San Juan de Nicaragua. EPN has decided that it is
not useful for the dredging of the San Juan River. In dredging attempted near
deposit site No. 18, the dredge produced low dredge yields: no more than 10.0
582
m3/hour. Moreover, the dredge cannot expel dredged material more than 120
meters, cut strips over 3.6 meters, or advance in anything other than a straight
line.583
5.188 In light of these difficulties, only the two comparatively larger
584
dredges have actually been used with any frequency. They have a combined
capacity of 420 m3/hour when both are functioning optimally (which is often not
the case). This is significantly lower than the 575 m3/hour capacity that
580Ibid., p. 9.
581Ibid., p. 12.
582
583Ibid., pp. 7 & 12.
584Ibid., p. 13.
Ibid., pp. 12-14. 5.191 Thus, the practice throughout 2011 was for the 1975 dredge with a
maximum capacity of 120 m3/hour to be dispatched to the Delta area, and for the
2009 dredge with the maximum capacity of 300 m3/hour to provide support.
Between January and mid -December 2011, 131,988.79 m3 of sediments were
dredged from the stretch between the Delta and Los Reyes. EPN reports that this
strategy has had positive effects, eliminating at least some of the problems that
had existed in that area of the River involving “1- foot maximum water depth and
grounded watercraft,” thereby permitting safer navigation in that portion of the
Lower San Juan. Nevertheless, mechanical problems, the inef ficiency of the
dredges, and rapid re -sedimentation have caused the dredging efforts to be
effectively limited in 2011 to the stretch of the San Juan between the Delta and
590
Los Reyes. Indeed, during the same period, only 19,164 m3 of sediments were
dredged from other parts of the River (specifically, the stretch between San
Juanillo and El Zapotal).
5.192 The budget for the dredging project was $7.5 million, 591a fact that
Costa Rica has acknowledged. 592 As Costa Rican Foreign Minister Castro
observed in September 2010, a budget this size is “rather modest for this type of
590
591EPN 2011 Annual Report, p. 16 (NCM, Vol. II , Annex 17).
See EPN “Report on the Visit Conducted to the San Juan River and Considerations regarding
its Cleaning and Dredging to Guarantee its Permanent Navigation,” based on -7 February 2008
visit to the site, p. 18 (NCM, Vol. II, Annex 21); see also CR 2011/2, p. 17, para. 40 (Argüello).
592CR 2011/3, p. 28, para. 25 (Crawford).
234 5.191 Thus, the practice throughout 2011 was for the 1975 dredge with a
maximum capacity of 120 m3/hour to be dispatched to the Delta area, and for the
2009 dredge with the maximum capacity of 300 m3/hour to provide support.
Between January and mid -December 2011, 131,988.79 m3 of sediments were
dredged from the stretch between the Delta and Los Reyes. EPN reports that this
strategy has had positive effects, eliminating at least some of the problems that
had existed in that area of the River involving “1- foot maximum water depth and
grounded watercraft,” thereby permitting safer navigation in that portion of the
Lower San Juan. Nevertheless, mechanical problems, the inef ficiency of the
dredges, and rapid re -sedimentation have caused the dredging efforts to be
effectively limited in 2011 to the stretch of the San Juan between the Delta and
590
Los Reyes. Indeed, during the same period, only 19,164 m3 of sediments were
dredged from other parts of the River (specifically, the stretch between San
Juanillo and El Zapotal).
5.192 The budget for the dredging project was $7.5 million, 591a fact that
Costa Rica has acknowledged. 592 As Costa Rican Foreign Minister Castro
observed in September 2010, a budget this size is “rather modest for this type of
590
591EPN 2011 Annual Report, p. 16 (NCM, Vol. II , Annex 17).
See EPN “Report on the Visit Conducted to the San Juan River and Considerations regarding
its Cleaning and Dredging to Guarantee its Permanent Navigation,” based on -7 February 2008
visit to the site, p. 18 (NCM, Vol. II, Annex 21); see also CR 2011/2, p. 17, para. 40 (Argüello).
592CR 2011/3, p. 28, para. 25 (Crawford). that the works were being carried out in accordance with the environmental
requirements set forth in MARENA Resolution No. 038-2008-A1.
5.196 During its visit to the caño, the inspection team observed that the
caño was being cleared “manually (using shovels, pickaxe and chainsaw…for tree
pruning)” by men in rubber boots to approximately 10 meters wide at the
beginning near the San Juan River, with a depth of between 1 and 1.2 meters, in
order to allow for continued navigation of the channel by small craft along the
1,560 meters to Harbor Head Lagoon. The MAREN A inspectors noted that,
although some vegetation was being “affected on the left bank of Nicaraguan
territory,” it was “part of the very wet riparian and flooded forest of the caño” that
needed to be removed because it “obstructed the navigation of the channel.” 597
5.197 As to the dredging of the upriver section, the environmental
inspectors found that the work was 40% complete, having resulted in the dredging
of 12,000 m³ of sediments, which had been properly deposited in two approved
sites located in a former ag ricultural area on the Nicaraguan bank. Another site
598
had also been identified for future use.
5.198 For both activities, the MARENA inspectors concluded that the
environmental impacts were “short-term and reversible, primarily the recuperation
of vegetation,” and that “[t]he impact on water quality conforms to the physico -
chemical parameters and is considered to be of low intensity, inevitable, and is
597MARENA Technical Monitoring Report from Inspection Conducted 24- 26 November 2010, p.
5 (NCM, Vol. II, Annex 14).
598Ibid., p. 3.
236that the works were being carried out in accordance with the environmental
requirements set forth in MARENA Resolution No. 038-2008-A1.
5.196 During its visit to the caño, the inspection team observed that the
caño was being cleared “manually (using shovels, pickaxe and chainsaw…for tree
pruning)” by men in rubber boots to approximately 10 meters wide at the
beginning near the San Juan River, with a depth of between 1 and 1.2 meters, in
order to allow for continued navigation of the channel by small craft along the
1,560 meters to Harbor Head Lagoon. The MAREN A inspectors noted that,
although some vegetation was being “affected on the left bank of Nicaraguan
territory,” it was “part of the very wet riparian and flooded forest of the caño” that
needed to be removed because it “obstructed the navigation of the channel.” 597
5.197 As to the dredging of the upriver section, the environmental
inspectors found that the work was 40% complete, having resulted in the dredging
of 12,000 m³ of sediments, which had been properly deposited in two approved
sites located in a former ag ricultural area on the Nicaraguan bank. Another site
598
had also been identified for future use.
5.198 For both activities, the MARENA inspectors concluded that the
environmental impacts were “short-term and reversible, primarily the recuperation
of vegetation,” and that “[t]he impact on water quality conforms to the physico -
chemical parameters and is considered to be of low intensity, inevitable, and is
597MARENA Technical Monitoring Report from Inspection Conducted 24- 26 November 2010, p.
5 (NCM, Vol. II, Annex 14).
598Ibid., p. 3. 5.202 For instance, in opining on the alleged impacts of Nicaragua’s
activities, Professor Thorne relies almost exclusively upon what he calls “the
environmental impacts observed and/or inferred by the Ramsar teams” that have
601
conducted missions in response to Costa Rica’s requests for assistance. Such
impacts have supposedly been “established” in two separate reports: Ramsar
Advisory Mission Report No. 69 on a visit conducted in late 2010, and what
Professor Thorne calls the “Draft Ramsar Report” on the joint Costa Rican-
602
Ramsar visit conducted in April 2011. In reality, neither of these reports
establishes what was actually observed by Ramsar personnel.
5.203 Despite its title, Ramsar Report No. 69 is essentially a Costa Rican
603
report. The report itself states that it is based entirely on information provided
604
by Costa Rica, and that it took as fact the opinions of Costa Rica’s
Environmental Ministry regarding the purpose of Nicaragua’s activities and
adopted the Ministry’s pre -packaged conclusion as its own. 605 The Ramsar
601Thorne, p. I-65.
602See ibid., p. III-1.
603Indeed, the copy annexed to Costa Rica’s Memorial, which is dated 17 December 2010, is not
the final version published for public consumption on Ramsar’s website, which is dated 3 January
2011. Compare CRM, Vol. IV, Annex 147 to the Ram sar version of Report No. 69 available at
http://www.ramsar.org/cda/en/ramsar-documents-rams/main/ramsar/1-31-112… (last
visited 15 July 2012).
604 See, e.g., Ramsar Secretariat, “Ramsar Advisory Mission Report No. 69, North -eastern
Caribbean Wetland of International Importance ( Humedal Caribe Noreste ), Costa Rica,” 17
December 2010 (hereinafter “Ramsar Report No. 69”), in CRM, Vol. IV, Annex 147, pp. 88 &
129 (indicating that the report’s conclusions are based on “the analysis of the technical information
received from the Government of Costa Rica”). The version of the report presented in Costa
Rica’s annexes does not include page numbers. For this reason, citations to the report in this
Counter Memorial refer to the page number of CRM, Vol. IV in which the report appears.
605See ibid., p. 117 (“The Ministry of the Environment, Energy, and Telecommunications stated in
its communication that the purpose of the changes was to prepare the area for the construction of
an artificial canal to unite a body of fresh water with a body of salt w ater…thus changing the role
238 5.202 For instance, in opining on the alleged impacts of Nicaragua’s
activities, Professor Thorne relies almost exclusively upon what he calls “the
environmental impacts observed and/or inferred by the Ramsar teams” that have
601
conducted missions in response to Costa Rica’s requests for assistance. Such
impacts have supposedly been “established” in two separate reports: Ramsar
Advisory Mission Report No. 69 on a visit conducted in late 2010, and what
Professor Thorne calls the “Draft Ramsar Report” on the joint Costa Rican-
602
Ramsar visit conducted in April 2011. In reality, neither of these reports
establishes what was actually observed by Ramsar personnel.
5.203 Despite its title, Ramsar Report No. 69 is essentially a Costa Rican
603
report. The report itself states that it is based entirely on information provided
604
by Costa Rica, and that it took as fact the opinions of Costa Rica’s
Environmental Ministry regarding the purpose of Nicaragua’s activities and
adopted the Ministry’s pre -packaged conclusion as its own. 605 The Ramsar
601Thorne, p. I-65.
602See ibid., p. III-1.
603Indeed, the copy annexed to Costa Rica’s Memorial, which is dated 17 December 2010, is not
the final version published for public consumption on Ramsar’s website, which is dated 3 January
2011. Compare CRM, Vol. IV, Annex 147 to the Ram sar version of Report No. 69 available at
http://www.ramsar.org/cda/en/ramsar-documents-rams/main/ramsar/1-31-112… (last
visited 15 July 2012).
604See, e.g., Ramsar Secretariat, “Ramsar Advisory Mission Report No. 69, North -eastern
Caribbean Wetland of International Importance ( Humedal Caribe Noreste ), Costa Rica,” 17
December 2010 (hereinafter “Ramsar Report No. 69”), in CRM, Vol. IV, Annex 147, pp. 88 &
129 (indicating that the report’s conclusions are based on “the analysis of the technical information
received from the Government of Costa Rica”). The version of the report presented in Costa
Rica’s annexes does not include page numbers. For this reason, citations to the report in this
Counter Memorial refer to the page number of CRM, Vol. IV in which the report appears.
605See ibid., p. 117 (“The Ministry of the Environment, Energy, and Telecommunications stated in
its communication that the purpose of the changes was to prepare the area for the construction of
an artificial canal to unite a body of fresh water with a body of salt w ater…thus changing the role while the Advisory Mission was still in Costa Rica, less than one hour by plane
from Managua. Another invitation was issued on 2 Decem ber 2010, when
Nicaragua requested that no report be issued until Nicaragua’s views had been
610
received. Nevertheless, no advisory mission was sent to Nicaragua until March
2011, well after the final version of Report No. 69 was issued in January 2011 and
after the Order of the Court of 8 March 2011.
5.205 Given that the Ramsar Mission responsible for the report relied
exclusively on second- hand information presented to it by the Costa Rican
government, and given that the report does not disclose either the names or
611
qualifications of its authors as would be expected of a scientific report, it is both
troubling and telling that Professor Thorne describes the report as providing “an
authoritative description of the changes in the physical and ecological
characteristics of the wetlands affected by the actions of Nicaragua in constructing
the ‘Caño’ and cutting off a meander in the Lower San Juan,” 612and states that he
has “taken the content of [this report] as the baseline for assessing the impacts of
613
Nicaragua’s dredging programme”.
5.206 Costa Rica’s own annexes demonstrate that the second purported
“Ramsar Report” – rather than being a report by the Ramsar Advisory Mission
that accompanied Costa Rican officials to the disputed area in early April 2011 –is
610See Letter from Carlos Robelo Raffone, Nicaraguan Am bassador in Geneva and Permanent
Representative of Nicaragua before the United Nations and other International Organizations, to
611da Tiéga, Ramsar Secretary General, 2 December 2010 (NCM, Vol. III, Annex 64).
612Kondolf, Section 4.1. (Appendix 1).
613Thorne, pp. II-44-45.
Ibid., p. II-45.
240while the Advisory Mission was still in Costa Rica, less than one hour by plane
from Managua. Another invitation was issued on 2 Decem ber 2010, when
Nicaragua requested that no report be issued until Nicaragua’s views had been
610
received. Nevertheless, no advisory mission was sent to Nicaragua until March
2011, well after the final version of Report No. 69 was issued in January 2011 and
after the Order of the Court of 8 March 2011.
5.205 Given that the Ramsar Mission responsible for the report relied
exclusively on second- hand information presented to it by the Costa Rican
government, and given that the report does not disclose either the names or
611
qualifications of its authors as would be expected of a scientific report, it is both
troubling and telling that Professor Thorne describes the report as providing “an
authoritative description of the changes in the physical and ecological
characteristics of the wetlands affected by the actions of Nicaragua in constructing
the ‘Caño’ and cutting off a meander in the Lower San Juan,” 612and states that he
has “taken the content of [this report] as the baseline for assessing the impacts of
613
Nicaragua’s dredging programme”.
5.206 Costa Rica’s own annexes demonstrate that the second purported
“Ramsar Report” – rather than being a report by the Ramsar Advisory Mission
that accompanied Costa Rican officials to the disputed area in early April 2011 –is
610See Letter from Carlos Robelo Raffone, Nicaraguan Am bassador in Geneva and Permanent
Representative of Nicaragua before the United Nations and other International Organizations, to
611da Tiéga, Ramsar Secretary General, 2 December 2010 (NCM, Vol. III, Annex 64).
612Kondolf, Section 4.1. (Appendix 1).
613Thorne, pp. II-44-45.
Ibid., p. II-45. 617
been “exaggerating the possible effects of the caño clearing”. In short, Costa
Rica’s report to Ramsar is hardly an impartial and objective technical analysis,
and the Ramsar personnel who accompanied Costa Rica’s officials to the disputed
area in April 2011 – the first time they actually visited the site – have so far
published no report of their own.
5.208 Given that these and other Costa Rican reports – many of which
618
Costa Rica has not made available for review – form the backbone for Professor
Thorne’s analysis regarding the purported impacts of Nicaragua’s activities on
Costa Rica, his conclusions must be viewed skeptically. Professor Thorne’s
conclusions are only as good as the information upon which they have been built.
And that information is neither impartial nor reliable. That is, Costa Rica’s own
reports and “evidence” do not become impartial or reliable simply because one
Ramsar Advisory Mission and Professor Thorne have repeated them.
5.209 As Dr. Kondolf explains, in the portions of the Thorne report that
deal with Costa Rica’s allegations of damage to its territory:
Thorne is apparently not presenting his own original work, but
mostly repeating the conclusions reached by othe r authors.
Professor Thorne seems to implicitly accept at face value the
material presented in these other reports without any critical
evaluation of their plausibility or reliability. …[A]ll of these
617
618Kondolf, Section 5.9 (Appendix 1).
For instance, although Professor Thorne relies upon an August 2011 report prepared by
Fundación Neotrópica, Costa Rica has failed to attach that report to its Memorial, attaching instead
a different and later report by the same organization upon which Prof essor Thone did not rely. See
Thorne, pp. II-2 & III-1 and CRM, Vol. IV, Annex 157, 10 October 2011.
242 617
been “exaggerating the possible effects of the caño clearing”. In short, Costa
Rica’s report to Ramsar is hardly an impartial and objective technical analysis,
and the Ramsar personnel who accompanied Costa Rica’s officials to the disputed
area in April 2011 – the first time they actually visited the site – have so far
published no report of their own.
5.208 Given that these and other Costa Rican reports – many of which
618
Costa Rica has not made available for review – form the backbone for Professor
Thorne’s analysis regarding the purported impacts of Nicaragua’s activities on
Costa Rica, his conclusions must be viewed skeptically. Professor Thorne’s
conclusions are only as good as the information upon which they have been built.
And that information is neither impartial nor reliable. That is, Costa Rica’s own
reports and “evidence” do not become impartial or reliable simply because one
Ramsar Advisory Mission and Professor Thorne have repeated them.
5.209 As Dr. Kondolf explains, in the portions of the Thorne report that
deal with Costa Rica’s allegations of damage to its territory:
Thorne is apparently not presenting his own original work, but
mostly repeating the conclusions reached by othe r authors.
Professor Thorne seems to implicitly accept at face value the
material presented in these other reports without any critical
evaluation of their plausibility or reliability. …[A]ll of these
617
618Kondolf, Section 5.9 (Appendix 1).
For instance, although Professor Thorne relies upon an August 2011 report prepared by
Fundación Neotrópica, Costa Rica has failed to attach that report to its Memorial, attaching instead
a different and later report by the same organization upon which Prof essor Thone did not rely. See
Thorne, pp. II-2 & III-1 and CRM, Vol. IV, Annex 157, 10 October 2011. native species in that area of direct influence allow for natural regeneration and
are species that grow rapidly, and because (in stark contrast with Costa Rica’ s
construction of its road 622) the activity was manual, conducted by hand, and care
was taken to dispose of sediments appropriately.
(i) The Felling of Trees
5.212 While Nicaragua generally avoids the felling of any trees in the
area of the lower San Juan where possib le, and especially those that are older,
Nicaragua acknowledges that it felled 180 trees during its caño clearing efforts at
the end of 2010. 623 Costa Rica insists that “[t]he actual number of trees felled is
higher than this figure,” because, it asserts, i nspections and satellite images have
allegedly demonstrated that “around 292” trees have been felled, totaling some
2.48 hectares of felled forest. 624 Costa Rica has not attempted to prove – and
indeed, cannot prove – that Nicaragua is responsible for these additional felled
trees, whose deceivingly exact numbers it concedes it has “extrapolated” from
preexisting information “with the help of satellite images” because “it was not
625
possible to collect detailed information”. Costa Rica thus admits that its
assertions about the trees that were felled is not based on sound science.
622As Dr. Kondolf explains, “the extent of clearing and disturbance by the Costa Rican road is at
least 100 times greater than the clearing of the Caño about which Professor Thorne and other
authors have made dire predictions of environmental impact. Put in context of the much larger
road project, the impacts from clearing of the Caño are small indeed.” Kondolf, Section 2.14
623pendix 1).
624CR 2011/2, pp. 45-46, para. 44 (Reichler).
625CRM, pp. 230-231, para. 5.68.
Costa Rican 2011 Report to Ramsar, p. 45 (CRM, Vol. IV, Annex 155).
244native species in that area of direct influence allow for natural regeneration and
are species that grow rapidly, and because (in stark contrast with Costa Rica’ s
construction of its road 62) the activity was manual, conducted by hand, and care
was taken to dispose of sediments appropriately.
(i) The Felling of Trees
5.212 While Nicaragua generally avoids the felling of any trees in the
area of the lower San Juan where possib le, and especially those that are older,
Nicaragua acknowledges that it felled 180 trees during its caño clearing efforts at
the end of 2010. 623 Costa Rica insists that “[t]he actual number of trees felled is
higher than this figure,” because, it asserts, i nspections and satellite images have
allegedly demonstrated that “around 292” trees have been felled, totaling some
2.48 hectares of felled forest. 624 Costa Rica has not attempted to prove – and
indeed, cannot prove – that Nicaragua is responsible for these additional felled
trees, whose deceivingly exact numbers it concedes it has “extrapolated” from
preexisting information “with the help of satellite images” because “it was not
625
possible to collect detailed information”. Costa Rica thus admits that its
assertions about the trees that were felled is not based on sound science.
622As Dr. Kondolf explains, “the extent of clearing and disturbance by the Costa Rican road is at
least 100 times greater than the clearing of the Caño about which Professor Thorne and other
authors have made dire predictions of environmental impact. Put in context of the much larger
road project, the impacts from clearing of the Caño are small indeed.” Kondolf, Section 2.14
623pendix 1).
624CR 2011/2, pp. 45-46, para. 44 (Reichler).
625CRM, pp. 230-231, para. 5.68.
Costa Rican 2011 Report to Ramsar, p. 45 (CRM, Vol. IV, Annex 155). “Appraisal” itself appears to concede – tree growth rates vary widely and are
highly dependent on local environmental conditions. “Before confidently applying
growth rates from one locality to another, the environmental conditions for the
two areas must be quantified and objectively compared.” 629No such information
is presented in Annex 145, or anywhere else in Costa Rica’s submission.
5.215 Moreover, the report concedes that it did not conduct “an
appropriate counting” of plants with diameters smaller than 5 centimeters, 630
meaning that the averages calculated and reported in the later pages of the report
631
were artificially inflated, corrupting the conclusions drawn from those averages.
As Dr. Kondolf puts it, the smallest size category should have been included with
some adjustment to account for poor counting. “By leaving out the smallest size
category, the report presents a misleading impression of the pattern of size
632
data,” implying that the tree density per hectare “follows a more consistent
633
pattern than indicated by the actual data.”
5.216 Thus, Costa Rica’s “Appraisal” has not actually proven that there
are trees over 200 years old in the area in dispute, much less that the trees
inspected “could be on average 247.6 years old, an age which could fluctuate
634
between 206.3 and 309.8 years.” These figures are not only misleading in their
629Kondolf, Section 6.2 (Appendix 1).
630SINAC 2010 Tree Appraisal, in CRM, Vol. IV, Annex 145, p. 55.
631See ibid., pp. 57-58.
632Kondolf, Section 6.3 (Appendix 1).
633
634Ibid.
SINAC 2010 Tree Appraisal, in CRM, Vol. IV, Annex 145, p. 58.
246“Appraisal” itself appears to concede – tree growth rates vary widely and are
highly dependent on local environmental conditions. “Before confidently applying
growth rates from one locality to another, the environmental conditions for the
two areas must be quantified and objectively compared.” 629No such information
is presented in Annex 145, or anywhere else in Costa Rica’s submission.
5.215 Moreover, the report concedes that it did not conduct “an
appropriate counting” of plants with diameters smaller than 5 centimeters, 630
meaning that the averages calculated and reported in the later pages of the report
631
were artificially inflated, corrupting the conclusions drawn from those averages.
As Dr. Kondolf puts it, the smallest size category should have been included with
some adjustment to account for poor counting. “By leaving out the smallest size
category, the report presents a misleading impression of the pattern of size
632
data,” implying that the tree density per hectare “follows a more consistent
633
pattern than indicated by the actual data.”
5.216 Thus, Costa Rica’s “Appraisal” has not actually proven that there
are trees over 200 years old in the area in dispute, much less that the trees
inspected “could be on average 247.6 years old, an age which could fluctuate
634
between 206.3 and 309.8 years.” These figures are not only misleading in their
629Kondolf, Section 6.2 (Appendix 1).
630SINAC 2010 Tree Appraisal, in CRM, Vol. IV, Annex 145, p. 55.
631See ibid., pp. 57-58.
632Kondolf, Section 6.3 (Appendix 1).
633
634Ibid.
SINAC 2010 Tree Appraisal, in CRM, Vol. IV, Annex 145, p. 58. contradicted by the [Report to Ramsar’s] acknowledgement that vegetation
recovery has occurred since 1961….In this dynamic environment, with rapid rates
of vegetation growth, small areas cleared of vegetation can be expected to rapidly
recover, so the dire language used to describe the effects of the clearing of the
640
Caño appears to be an exaggeration.”
(ii) The Removal of Undergrowth
5.218 Nicaragua does not dispute that undergrowth was cle ared in its
efforts to clear the caño and render it navigable once again. However, vegetation
was only affected on the Nicaraguan bank of the caño. MARENA personnel
observed this during a visit to the site in late November 2011, which was
conducted to ensure compliance with the environmental requirements of the
641
supplemental authorization.
5.219 Moreover, Costa Rica’s allegation that “the very removal of
undergrowth…significantly changed the ecological characteristics of the
642
wetland,” which had been “previously undisturbed,” is incorrect. Costa Rica’s
Memorial illustrates that it has allowed the Humedal Caribe Noreste – the Costa
Rican analogue to Nicaragua’s Ramsar site – to be “used largely for agriculture,”
643
as well as “cattle ranching”. The same is true o f the disputed area, which
according to Costa Rica’s October 2011 report to Ramsar, has experienced “an
640Kondolf, Section 5.7 (Appendix 1).
641See MARENA Technical Monitoring Report from Inspection Conducted 24 -26 November 2010
642M, Vol. II, Annex 14).
643CRM, p. 236, para. 5.79.
Ibid., pp. 38-39, para. 2.13, quoting Annotated Ramsar list (CRM, Vol. IV, Annex 119).
248contradicted by the [Report to Ramsar’s] acknowledgement that vegetation
recovery has occurred since 1961….In this dynamic environment, with rapid rates
of vegetation growth, small areas cleared of vegetation can be expected to rapidly
recover, so the dire language used to describe the effects of the clearing of the
640
Caño appears to be an exaggeration.”
(ii) The Removal of Undergrowth
5.218 Nicaragua does not dispute that undergrowth was cle ared in its
efforts to clear the caño and render it navigable once again. However, vegetation
was only affected on the Nicaraguan bank of the caño. MARENA personnel
observed this during a visit to the site in late November 2011, which was
conducted to ensure compliance with the environmental requirements of the
641
supplemental authorization.
5.219 Moreover, Costa Rica’s allegation that “the very removal of
undergrowth…significantly changed the ecological characteristics of the
642
wetland,” which had been “previously undisturbed,” is incorrect. Costa Rica’s
Memorial illustrates that it has allowed the Humedal Caribe Noreste – the Costa
Rican analogue to Nicaragua’s Ramsar site – to be “used largely for agriculture,”
643
as well as “cattle ranching”. The same is true o f the disputed area, which
according to Costa Rica’s October 2011 report to Ramsar, has experienced “an
640Kondolf, Section 5.7 (Appendix 1).
641See MARENA Technical Monitoring Report from Inspection Conducted 24 -26 November 2010
642M, Vol. II, Annex 14).
643CRM, p. 236, para. 5.79.
Ibid., pp. 38-39, para. 2.13, quoting Annotated Ramsar list (CRM, Vol. IV, Annex 119). be closer to 10,000 m3, and that “disturbance of this scale would certainly disrupt
650
sub-surface, terrestrial and aquatic processes, habitats, and species.”
5.222 Even assuming that a relatively small group of individuals using
hand tools would be capable of removing such a substantial quantity of soil,
Nicaragua has not, as Costas Rica claims, “caused harm to Costa Rican territory,
as the very removal of…soil from a previously undisturbed wetland has
significantly changed the ecological characteristics of the wetland.” 651 The
evidence shows that the area in question is not “an area of primary forest that had
652
been undisturbed for over 200 years.” As noted above, the southern portion of
the caño has, in fact, be en disturbed in various ways, most notably by the
agricultural and cattle-ranching uses Costa Rica itself has authorized. These are in
fact the activities that have changed the character of the wetland, not Nicaragua’s
modest efforts to clean the caño by hand.
5.223 In short, “[t]he impacts of clearing and excavating the Caño were
minor and short -lived (as acknowledged by the Thorne report). There is no
credible evidence of harm to Costa Rican territory.” 653
650Ibid., p. 235, paras. 5.76-5.77.
651CRM, p. 236, para. 5.79.
652
653Thorne, p. I-54.
Kondolf, Section 1.2 (Appendix 1).
250be closer to 10,000 m3, and that “disturbance of this scale would certainly disrupt
650
sub-surface, terrestrial and aquatic processes, habitats, and species.”
5.222 Even assuming that a relatively small group of individuals using
hand tools would be capable of removing such a substantial quantity of soil,
Nicaragua has not, as Costas Rica claims, “caused harm to Costa Rican territory,
as the very removal of…soil from a previously undisturbed wetland has
significantly changed the ecological characteristics of the wetland.” 651 The
evidence shows that the area in question is not “an area of primary forest that had
652
been undisturbed for over 200 years.” As noted above, the southern portion of
the caño has, in fact, be en disturbed in various ways, most notably by the
agricultural and cattle-ranching uses Costa Rica itself has authorized. These are in
fact the activities that have changed the character of the wetland, not Nicaragua’s
modest efforts to clean the caño by hand.
5.223 In short, “[t]he impacts of clearing and excavating the Caño were
minor and short -lived (as acknowledged by the Thorne report). There is no
credible evidence of harm to Costa Rican territory.” 653
650Ibid., p. 235, paras. 5.76-5.77.
651CRM, p. 236, para. 5.79.
652
653Thorne, p. I-54.
Kondolf, Section 1.2 (Appendix 1). 5.226 Costa Rica’s own expert appears to be hesitant about concluding
that soil was deposited on both sides of the caño. Despite the deceptively
conclusive statements in Costa Rica’s report to Ramsar and its Memorial that
damage to Costa Rica’s side of the caño is “clear” from the reports and
photographic evidence (which is not provided or cited), Prof essor Thorne refuses
to draw the same conclusion from his review of the report to Ramsar, only going
so far as to say that the Costa Rican field team that visited the site in April 2011
“observed that the sediment dug out to create the ‘Caño’ had been dumped on the
wetland along the course of the constructed channel” and had “created bunds on
one or both sides of the channel along the entire length of the ‘Caño’”. 660 This
remark is not only equivocal, but based on unreliable hearsay: the same self -
serving and unsupported Costa Rican “observation” that Ramsar did not endorse.
5.227 Regarding Costa Rica’s argument that the deposition of debris and
soil from the caño has caused harm to the disputed area, the Memorial provides no
support for this assertion; it merely alleges in conclusory fashion that this has
transpired without providing any evidence. 661 The same is true of Costa Rica’s
report to Ramsar, which asserts that the section of the wetland where cleared
debris and soil were deposited “has been left totally d estroyed, as it is impossible
to restore it to its former status, even if the extracted material could be put back
660Thorne, p. I-51 (emphasis added).
661See CRM, p. 226, para. 5.62 & p. 236, paras. 5.78- 5.79.
252 5.226 Costa Rica’s own expert appears to be hesitant about concluding
that soil was deposited on both sides of the caño. Despite the deceptively
conclusive statements in Costa Rica’s report to Ramsar and its Memorial that
damage to Costa Rica’s side of the caño is “clear” from the reports and
photographic evidence (which is not provided or cited), Prof essor Thorne refuses
to draw the same conclusion from his review of the report to Ramsar, only going
so far as to say that the Costa Rican field team that visited the site in April 2011
“observed that the sediment dug out to create the ‘Caño’ had been dumped on the
wetland along the course of the constructed channel” and had “created bunds on
one or both sides of the channel along the entire length of the ‘Caño’”. 660 This
remark is not only equivocal, but based on unreliable hearsay: the same self -
serving and unsupported Costa Rican “observation” that Ramsar did not endorse.
5.227 Regarding Costa Rica’s argument that the deposition of debris and
soil from the caño has caused harm to the disputed area, the Memorial provides no
support for this assertion; it merely alleges in conclusory fashion that this has
transpired without providing any evidence. 661 The same is true of Costa Rica’s
report to Ramsar, which asserts that the section of the wetland where cleared
debris and soil were deposited “has been left totally d estroyed, as it is impossible
to restore it to its former status, even if the extracted material could be put back
660Thorne, p. I-51 (emphasis added).
661See CRM, p. 226, para. 5.62 & p. 236, paras. 5.78- 5.79. 5.230 Rather than illustrating the “total destruction” of the Costa Rican
bank of the caño, these images depict a southern (and, for that matter, northern)
bank lush with vegetation, with healthy trees and other plants growing nearby.
5.231 In short, Costa Rica has not proven – and cannot prove – that
Nicaragua caused harm to Costa Rica through the clearing of the caño. The work
was conducted entirely on Nicaraguan territory, and none of the activities led to
irreparable harm or destruction. The modest nature of Nicaragua’s activities in
the caño are put into stark relief by Costa Rica’s much broader destructive
254 5.230 Rather than illustrating the “total destruction” of the Costa Rican
bank of the caño, these images depict a southern (and, for that matter, northern)
bank lush with vegetation, with healthy trees and other plants growing nearby.
5.231 In short, Costa Rica has not proven – and cannot prove – that
Nicaragua caused harm to Costa Rica through the clearing of the caño. The work
was conducted entirely on Nicaraguan territory, and none of the activities led to
irreparable harm or destruction. The modest nature of Nicaragua’s activities in
the caño are put into stark relief by Costa Rica’s much broader destructive 5.234 Insofar as Costa Rica is alleging that the dumping of dredged
sediments has taken place “on the right Costa Rican bank of the San Juan causing
damage to Costa Rican territory,” 668this could, at least hypothetically, be a claim
that Costa Rica has standing to raise. However, all of Costa Rica’s allegations
that Nicaragua has deposited dredged sediments on Costa Rican t erritory beg the
question of where Nicaraguan territory ends and Costa Rican territory begins.
That is, the dredged sediments at issue were deposited in the territory that
669
Nicaragua is convinced falls under its sovereignty.
5.235 Leaving aside the fact that al l dredged sediments have been
deposited on Nicaraguan territory, the amount deposited in the disputed area is
trivial and can hardly be characterized as sufficient to cause irreparable harm.
670 671
Those sediments are visible as a single grey pile in the follo wing
photographs from the report of Professor Thorne:
668Ibid., p. 131, para. 3.115.
669
670See ibid, paras. 3.8, 3.11, 3.14, 3.18-3.19 & 5.65.
671Thorne, p. I-39, Figure I.24.
Ibid., p. I-45, Figure I.28.
256 5.234 Insofar as Costa Rica is alleging that the dumping of dredged
sediments has taken place “on the right Costa Rican bank of the San Juan causing
damage to Costa Rican territory,” 668this could, at least hypothetically, be a claim
that Costa Rica has standing to raise. However, all of Costa Rica’s allegations
that Nicaragua has deposited dredged sediments on Costa Rican t erritory beg the
question of where Nicaraguan territory ends and Costa Rican territory begins.
That is, the dredged sediments at issue were deposited in the territory that
669
Nicaragua is convinced falls under its sovereignty.
5.235 Leaving aside the fact that al l dredged sediments have been
deposited on Nicaraguan territory, the amount deposited in the disputed area is
trivial and can hardly be characterized as sufficient to cause irreparable harm.
670 671
Those sediments are visible as a single grey pile in the follo wing
photographs from the report of Professor Thorne:
668Ibid., p. 131, para. 3.115.
669
670See ibid, paras. 3.8, 3.11, 3.14, 3.18-3.19 & 5.65.
671Thorne, p. I-39, Figure I.24.
Ibid., p. I-45, Figure I.28. 5.238 Costa Rica argues that this single deposit has caused “the
permanent loss of the ecological conditions existing before the deposit, reason for
which it constitutes an irreversible damage.” 674 It further contends that the area
affected by this deposit has “already suffered a total impact and will be beyond
675
recovery” leading to “the permanent loss of the ecological conditions existing
before the deposits.” 676
5.239 Costa Rica’s own evidence debunks this hyperbole. Costa Rica’s
expert has acknowledged that, by June 2011, this one sediment deposit was being
674
675Ibid., p. 38.
676Ibid., pp. 68-69.
Ibid., p. 73.
258 5.238 Costa Rica argues that this single deposit has caused “the
permanent loss of the ecological conditions existing before the deposit, reason for
which it constitutes an irreversible damage.” 674 It further contends that the area
affected by this deposit has “already suffered a total impact and will be beyond
675
recovery” leading to “the permanent loss of the ecological conditions existing
before the deposits.” 676
5.239 Costa Rica’s own evidence debunks this hyperbole. Costa Rica’s
expert has acknowledged that, by June 2011, this one sediment deposit was being
674
675Ibid., p. 38.
676Ibid., pp. 68-69.
Ibid., p. 73. 5.242 5As this photograph shows, the one location where dredged dredged
sediments were deposited in the disputed area had substantially diminished in size in size
by July 2011, with new vegetation taking the place of the old. There has been no been no
“destruction”. At the rate of growth visible from these photographs, between between
April and July 2011, it is obvious that, by the end of that year, the sedimentaryimentary
deposit would have been completely covered by vegetation, and no longero longer
discernible.ernible.
5.243 5Nor is Costa Rica correct in suggesting thating that Nicaragua hasagua has
deposited sediments in territory that is indisputably Costa Rican, i.e., territoryerritory
outside the area near the Harbor Head Lagoon that is under dispute in this case.is case.
As an initial matter, as discussed above, it is simply not true that Nicarag Nicaragua ua
260 5.242 As this photograph shows, the one location where dredged
sediments were deposited in the disputed area had substantially diminished in size
by July 2011, with new vegetation taking the place of the old. There has been no
“destruction”. At the rate of growth visible from these photographs, between
April and July 2011, it is obvious that, by the end of that year, the sedimentary
deposit would have been completely covered by vegetation, and no longer
discernible.
5.243 Nor is Costa Rica correct in suggesting that Nicaragua has
deposited sediments in territory that is indisputably Costa Rican, i.e., territory
outside the area near the Harbor Head Lagoon that is under dispute in this case.
As an initial matter, as discussed above, it is simply not true that Nicarag ua that “[o]n 21 August 2011…a pipe connected to one of Nicaragua’s dredgersgers
located in the area of the ‘Delta’ just beyond the bifurcation of the Colorado Riveriver
and the San Juan, had been placed on the right, Costa Rican bank of the San San
Juan,” with the pipe “attached to Costa Rican ter ter ritory.”ry.”The image, whichhich
Costa Rica has not authenticated and which bears a different date (7 July 2011) in) in
683 683
its caption, shows no such thing. Instead, it depictsicts – as its own caption showshows
– the dredge’s pipe “along the Costa Rican bank,” but still very much in the waterater
of the San Juan River.ver.
5.246.246 Furthermore, Costa Rica only alleges that the dredge’s pipe was was
attached to Costa Rican territory, not that it deposited sediments there.ere.
682CRM, p. 99, para. 3.66..66.
683Ibid., p. 100, Figure 3.3.3.3.
262that “[o]n 21 August 2011…a pipe connected to one of Nicaragua’s dredgers
located in the area of the ‘Delta’ just beyond the bifurcation of the Colorado River
and the San Juan, had been placed on the right, Costa Rican bank of the San
Juan,” with the pipe “attached to Costa Rican ter ritory.” 682 The image, which
Costa Rica has not authenticated and which bears a different date (7 July 2011) in
683
its caption, shows no such thing. Instead, it depicts – as its own caption shows
– the dredge’s pipe “along the Costa Rican bank,” but still very much in the water
of the San Juan River.
5.246 Furthermore, Costa Rica only alleges that the dredge’s pipe was
attached to Costa Rican territory, not that it deposited sediments there.
682CRM, p. 99, para. 3.66.
683Ibid., p. 100, Figure 3.3. (ii) Dredging Has Not Caused Erosion of the Costa Rican
Bank
5.250 Costa Rica alleges that “[a]s a result of the dredging works, the
Costa Rican bank of the San Juan is starting to erode.” 687 In support of this
allegation, Costa Rica again provides only one close-up photograph, Figure 3.4, 688
which does not identify the location or establish any linkage between the
condition of the river bank that is depicted and Nicaragua’s dredging operations.
689
Indeed, it is not possible to tell from the photograph whether the bank that is
depicted is the right bank of the San Juan River, or some other waterway inside
Costa Rica:
687CRM, p. 254, para. 5.109.
688Ibid., p. 101, cited at p. 99, para. 3.66 & p. 254, para. 5.109.
689Ibid., p. 101, Figure 3.4.
264 (ii) Dredging Has Not Caused Erosion of the Costa Rican
Bank
5.250 Costa Rica alleges that “[a]s a result of the dredging works, the
Costa Rican bank of the San Juan is starting to erode.” 687 In support of this
allegation, Costa Rica again provides only one close-up photograph, Figure 3.4, 688
which does not identify the location or establish any linkage between the
condition of the river bank that is depicted and Nicaragua’s dredging operations.
689
Indeed, it is not possible to tell from the photograph whether the bank that is
depicted is the right bank of the San Juan River, or some other waterway inside
Costa Rica:
687CRM, p. 254, para. 5.109.
688Ibid., p. 101, cited at p. 99, para. 3.66 & p. 254, para. 5.109.
689Ibid., p. 101, Figure 3.4. along the Costa Rican side of the border on the south bank of the river” as a result
692
of Nicaragua’s dredging activities.
5.253 Costa Rica’s expert likewise confir ms that its claims of erosion -
related harm are meritless. Specifically, while Professor Thorne notes that it can
be dangerous for dredges to operate too close to the Costa Rican bank, he
concludes, based on his site visit in July 2011, that “there was no evidence of
widespread bank erosion triggered by systemic response to the cumulative effects
of the dredging programme,” and that “widespread erosion of the banks would not
be expected in response to the cumulative effects of site or reach -scale dredging
693
alone.” Rather, the localized bank erosion that Professor Thorne observed on
the Costa Rican bank tended to be “in divided reaches and associated with
riverside settlements.” 694
5.254 Indeed, erosion of the Costa Rican bank is something that
Nicaragua’s EIS identified in 2006 as one of the reasons that the dredging project
was necessary in the first place. Specifically, the EIS noted that “the soil of the
riverbanks collapse as a result of the lack of natural structures to sustain them,”
such as the “roots of trees and shrubbery [that] serve this function of ‘mooring’ or
692UNITAR/UNOSAT Update 4, in CRM, Vol. IV, Annex 150, p. 160 (emphasis added).
693Thorne, p. II-41. Inconsistently, Professor Thorne also argues that he was able, in July 2011, to
observe certain listed “direct, shor-term, site -scale, and reach -scale impacts” of Nicaragua’s
dredging activities, and that “[e]vidence of all these impacts may be seen in Figure II.19” of his
report. However, Figure II.19 is nothing more than an (erroneous) map of deposit locations as
authorized in MARENA’s Resolution of the dredging project, nothing that provides any evidence
694tsoever of the impacts the dredging project has had to date. Ibid., pp. II-39-40 & Figure 19.
Ibid., p. II-41 (emphasis added).
266along the Costa Rican side of the border on the south bank of the river” as a result
692
of Nicaragua’s dredging activities.
5.253 Costa Rica’s expert likewise confir ms that its claims of erosion -
related harm are meritless. Specifically, while Professor Thorne notes that it can
be dangerous for dredges to operate too close to the Costa Rican bank, he
concludes, based on his site visit in July 2011, that “there was no evidence of
widespread bank erosion triggered by systemic response to the cumulative effects
of the dredging programme,” and that “widespread erosion of the banks would not
be expected in response to the cumulative effects of site or reach -scale dredging
693
alone.” Rather, the localized bank erosion that Professor Thorne observed on
the Costa Rican bank tended to be “in divided reaches and associated with
riverside settlements.” 694
5.254 Indeed, erosion of the Costa Rican bank is something that
Nicaragua’s EIS identified in 2006 as one of the reasons that the dredging project
was necessary in the first place. Specifically, the EIS noted that “the soil of the
riverbanks collapse as a result of the lack of natural structures to sustain them,”
such as the “roots of trees and shrubbery [that] serve this function of ‘mooring’ or
692UNITAR/UNOSAT Update 4, in CRM, Vol. IV, Annex 150, p. 160 (emphasis added).
693Thorne, p. II-41. Inconsistently, Professor Thorne also argues that he was able, in July 2011, to
observe certain listed “direct, sho-term, site -scale, and reach -scale impacts” of Nicaragua’s
dredging activities, and that “[e]vidence of all these impacts may be seen in Figure II.19” of his
report. However, Figure II.19 is nothing more than an (erroneous) map of deposit locations as
authorized in MARENA’s Resolution of the dredging project, nothing that provides any evidence
694tsoever of the impacts the dredging project has had to date. Ibid., pp. II-39-40 & Figure 19.
Ibid., p. II-41 (emphasis added). Environmental Ministry, recently observed that Costa Rica had caused
696
“[p]otential increase in focused erosion processes.” As can be observed in the
following photographs 697presented to the Central American Court of Justice by
environmental NGOs FUNDENIC -SOS and FONARE 698(see Figure(s) 5.5.),
erosion of the riverbank caused by Costa Rica’s road construction is a significant
problem.
Figure(s) 5.5.
696Costa Rican Environmental Management Plan for the Camino Juan Rafael Mora Porras, p. 22
697M, Vol. IV, Annex 116).
Dr. Jaime Incer Barquero, “Imactos ambientales sobre suelos, aguas y bosques causados por la
nueva carretera construida por Costas Rica junto al río San Juan,” presented to the Central
American Court of Justice by FUNDENIC -SOS/FONDO NATURA and FONARE in “ Catalogo
50 imagenes comentadas tomadas por los especialistas ,” p. 19, available at
http://lagosdenicaragua.org/index.php?option=com_content&view=article&i…
(last visited 16 July 2012).
698Presented to the Central American Court of Justice by FUNDENIC -SOS/FONDO NATURA
and FONARE in “Ruta de la Caretera,” image of site 15, available at http://lagosdenicaragua.org/
index.php?option=com_jdownloads&Itemid=64&view=finish&cid=9&catid=3&m=0 (last visited
16 July 2012).
268Environmental Ministry, recently observed that Costa Rica had caused
696
“[p]otential increase in focused erosion processes.” As can be observed in the
following photographs 697presented to the Central American Court of Justice by
environmental NGOs FUNDENIC -SOS and FONARE 698(see Figure(s) 5.5.),
erosion of the riverbank caused by Costa Rica’s road construction is a significant
problem.
Figure(s) 5.5.
696Costa Rican Environmental Management Plan for the Camino Juan Rafael Mora Porras, p. 22
697M, Vol. IV, Annex 116).
Dr. Jaime Incer Barquero, “Imactos ambientales sobre suelos, aguas y bosques causados por la
nueva carretera construida por Costas Rica junto al río San Juan,” presented to the Central
American Court of Justice by FUNDENIC -SOS/FONDO NATURA and FONARE in “ Catalogo
50 imagenes comentadas tomadas por los especialistas ,” p. 19, available at
http://lagosdenicaragua.org/index.php?option=com_content&view=article&i…
(last visited 16 July 2012).
698Presented to the Central American Court of Justice by FUNDENIC -SOS/FONDO NATURA
and FONARE in “Ruta de la Caretera,” image of site 15, available at http://lagosdenicaragua.org/
index.php?option=com_jdownloads&Itemid=64&view=finish&cid=9&catid=3&m=0 (last visited
16 July 2012). selected and controlled sites on the left (i.e., Nicaraguan) bank of the River.
Likewise, before authorizing the additions to the project, MARENA assessed their
likely environmental impacts and concluded that they would be minor and time -
limited.
5.258 These conclusions have been borne out by the actual impacts of the
project, or more accurately, the lack of impacts. None of the activities Nicaragua
has undertaken has caused any material impact to Costa Rica’s environment or the
flow of its rivers.
5.259 Indeed, in taci t recognition of the fact that it cannot prove any
actual harm, Costa Rica relies instead primarily on arguments about purported
risks of future harm. Specifically, Costa Rica alleges that “Nicaragua’s activities
risk causing further significant environme ntal harm to Costa Rican territory, and
affecting the flow of the Colorado River.” 699 Based on this purported risk, Costa
Rica asks the Court to order Nicaragua to “cease all dredging activities on the San
Juan in the area between the point of bifurcation of the Colorado River and the
San Juan and the outlet of the San Juan in the Caribbean Sea” pending “(i) an
adequate environmental impact assessment; (ii) notification to Costa Rica of
further dredging plans for the area, not less than 3 months prior to the
implementation of such plans; and (iii) due consideration of any comments of
700
Costa Rica made within 1 month of notification.”
699CRM, p. 70, para. 3.5.
700Ibid., pp. 300-301, para. 7.11 & pp. 304-305, Submissions, para. 2(b).
270selected and controlled sites on the left (i.e., Nicaraguan) bank of the River.
Likewise, before authorizing the additions to the project, MARENA assessed their
likely environmental impacts and concluded that they would be minor and time -
limited.
5.258 These conclusions have been borne out by the actual impacts of the
project, or more accurately, the lack of impacts. None of the activities Nicaragua
has undertaken has caused any material impact to Costa Rica’s environment or the
flow of its rivers.
5.259 Indeed, in taci t recognition of the fact that it cannot prove any
actual harm, Costa Rica relies instead primarily on arguments about purported
risks of future harm. Specifically, Costa Rica alleges that “Nicaragua’s activities
risk causing further significant environme ntal harm to Costa Rican territory, and
affecting the flow of the Colorado River.” 699Based on this purported risk, Costa
Rica asks the Court to order Nicaragua to “cease all dredging activities on the San
Juan in the area between the point of bifurcation of the Colorado River and the
San Juan and the outlet of the San Juan in the Caribbean Sea” pending “(i) an
adequate environmental impact assessment; (ii) notification to Costa Rica of
further dredging plans for the area, not less than 3 months prior to the
implementation of such plans; and (iii) due consideration of any comments of
700
Costa Rica made within 1 month of notification.”
699CRM, p. 70, para. 3.5.
700Ibid., pp. 300-301, para. 7.11 & pp. 304-305, Submissions, para. 2(b). UNITAR/UNOSAT Report of 4 January 2011, 705and the October 2011 expert
706
report of Professor Thorne, which Costa Rica submitted as Appendix I to its
Memorial. None of these documents proves a risk of harm to Costa Rica.
5.262 Ramsar Report No. 69 – which, as established above, is based
entirely on information provided by Costa Rica 707– does nothing to demonstrate
any risk of harm to Costa Rica. It is entirely focused on the now -completed
efforts to clear the caño, not the program to dredge the San Juan River, and it
merely states that, “if deforestation continues” in the area of Isla Portillos, effects
that are “very localized to the island and to the south of the southern edge” of the
caño would result, leading to “changes in the dynamics of the aquifer with respect
to the surface run -off and changes in the island’s flora.” 708 Nicaragua has no
intention of engaging in deforestation in the area of Harbour Head. Otherwise,
Costa Rica cites Ramsar Report No. 69 for the proposition that “receiving the
water supply from the waters of the San Juan via the artificial canal would alter
the water balance,” and that flooding might occur to cause harm in the area. 709
Again, Nicaragua has no intention of redirecting the San Juan River through the
705
See ibid., pp. 257 -258, para. 5.115, citing UNITAR/UNOSAT, “Morphological and
Environmental Change Assessment: San Juan River Area (including Isla Portillos and Calero),
Costa Rica,” 4 January 2011 (hereinafter “January 2011 UNITAR/UNOSAT Report”) (CRM, Vol.
IV, Annex 148).
706See ibid., paras. 5.82-5.87, 5.112-5.114, 5.117-5.118, 5.122.
707See paras. 5.203 – 5.206, supra.
708Ramsar Report No. 69, in CRM, Vol. IV, Annex 147, p. 118 (emphasis added).
709
CRM, p. 258, para. 5.116, quoting Ramsar Report No. 69, in CRM, Vol. IV, Annex 147, pp.
122 & 125.
272UNITAR/UNOSAT Report of 4 January 2011, 705and the October 2011 expert
706
report of Professor Thorne, which Costa Rica submitted as Appendix I to its
Memorial. None of these documents proves a risk of harm to Costa Rica.
5.262 Ramsar Report No. 69 – which, as established above, is based
entirely on information provided by Costa Rica 707– does nothing to demonstrate
any risk of harm to Costa Rica. It is entirely focused on the now -completed
efforts to clear the caño, not the program to dredge the San Juan River, and it
merely states that, “if deforestation continues” in the area of Isla Portillos, effects
that are “very localized to the island and to the south of the southern edge” of the
caño would result, leading to “changes in the dynamics of the aquifer with respect
to the surface run -off and changes in the island’s flora.” 708 Nicaragua has no
intention of engaging in deforestation in the area of Harbour Head. Otherwise,
Costa Rica cites Ramsar Report No. 69 for the proposition that “receiving the
water supply from the waters of the San Juan via the artificial canal would alter
the water balance,” and that flooding might occur to cause harm in the area. 709
Again, Nicaragua has no intention of redirecting the San Juan River through the
705
See ibid., pp. 257 -258, para. 5.115, citing UNITAR/UNOSAT, “Morphological and
Environmental Change Assessment: San Juan River Area (including Isla Portillos and Calero),
Costa Rica,” 4 January 2011 (hereinafter “January 2011 UNITAR/UNOSAT Report”) (CRM, Vol.
IV, Annex 148).
706See ibid., paras. 5.82-5.87, 5.112-5.114, 5.117-5.118, 5.122.
707See paras. 5.203 – 5.206, supra.
708Ramsar Report No. 69, in CRM, Vol. IV, Annex 147, p. 118 (emphasis added).
709
CRM, p. 258, para. 5.116, quoting Ramsar Report No. 69, in CRM, Vol. IV, Annex 147, pp.
122 & 125. 5.264 As the Costa Rican authors of the Report concede, this photograph
shows the pristine Lagoon and the in-tact barrier beyond.
5.265 Ramsar Report No. 69 also predicted that, within a year, there
would be flooding in the disputed area, “giving rise to a growing halo of dead
vegetation, with a loss of habitat for terrestrial fauna,” 713as well as “further
erosion in the remainder of the wetlands on Isla Portillos (south- eastern bank of
713
Ramsar Report No. 69, in CRM, Vol. IV, Annex 147, p. 127.
274 5.264 As the Costa Rican authors of the Report concede, this photograph
shows the pristine Lagoon and the in-tact barrier beyond.
5.265 Ramsar Report No. 69 also predicted that, within a year, there
would be flooding in the disputed area, “giving rise to a growing halo of dead
vegetation, with a loss of habitat for terrestrial fauna,” 713as well as “further
erosion in the remainder of the wetlands on Isla Portillos (south- eastern bank of
713
Ramsar Report No. 69, in CRM, Vol. IV, Annex 147, p. 127. anonymous authors. 718 This is because m any of the statements in the report are
unsubstantiated claims that cannot have been based on the interpretation of
719
satellite imagery, which the report states was the only method used. If such
statements are not rank speculation, they must be based on information and
conclusions received from a third party whose identity and methods have not been
revealed, which severely compromises the credibility and integrity of the report. 720
Indeed, Dr. Kondolf finds that, “[b]y the standards of science,” the January 2011
721
UNITAR/UNOSAT report “can be dismissed as unreliable and unscientific.”
5.268 Nevertheless, Costa Rica cites the report for the proposition that
Nicaragua’s activities will cause harm to Costa Rica, noting that
UNITAR/UNOSAT opined that:
If completed [the ] cut in the meander [approximately 400 meters
upstream from the caño] will redirect the San Juan River
approximately 175 meters to the west, and will likely significantly
increase the water velocity downstream. Such a velocity increase
will also increase the amount of water entering the new channel,
thus likely widening the channel due to an acceleration of the
erosion process resulting from the increased water velocity and
inflow. 722
718Kondolf, Section 3.1 (Appendix 1).
719Ibid., Section 3. It must be noted, however, that unlike a rigorous scientific paper or report, the
UNITAR/UNOSAT report does not include a distinct, detailed methods section, nor does it clearly
720ort its methods elsewhere. Ibid., Section 3.2.
Ibid., Section 3. According to Dr. Kondolf, many of the suspicious statements also betray a
lack of scientific competence in hydrology and fluvial geomorphology, which further undermine
the credibility of the report. Ibid.
721Ibid., Section 3.8.
722CRM, pp. 257-258, para. 5.115, quoting January 2011 UNITAR/UNOSAT Report (CRM, Vol.
IV, Annex 148).
276anonymous authors. 718 This is because m any of the statements in the report are
unsubstantiated claims that cannot have been based on the interpretation of
719
satellite imagery, which the report states was the only method used. If such
statements are not rank speculation, they must be based on information and
conclusions received from a third party whose identity and methods have not been
revealed, which severely compromises the credibility and integrity of the report. 720
Indeed, Dr. Kondolf finds that, “[b]y the standards of science,” the January 2011
721
UNITAR/UNOSAT report “can be dismissed as unreliable and unscientific.”
5.268 Nevertheless, Costa Rica cites the report for the proposition that
Nicaragua’s activities will cause harm to Costa Rica, noting that
UNITAR/UNOSAT opined that:
If completed [the ] cut in the meander [approximately 400 meters
upstream from the caño] will redirect the San Juan River
approximately 175 meters to the west, and will likely significantly
increase the water velocity downstream. Such a velocity increase
will also increase the amount of water entering the new channel,
thus likely widening the channel due to an acceleration of the
erosion process resulting from the increased water velocity and
inflow. 722
718Kondolf, Section 3.1 (Appendix 1).
719Ibid., Section 3. It must be noted, however, that unlike a rigorous scientific paper or report, the
UNITAR/UNOSAT report does not include a distinct, detailed methods section, nor does it clearly
720ort its methods elsewhere. Ibid., Section 3.2.
Ibid., Section 3. According to Dr. Kondolf, many of the suspicious statements also betray a
lack of scientific competence in hydrology and fluvial geomorphology, which further undermine
the credibility of the report. Ibid.
721Ibid., Section 3.8.
722CRM, pp. 257-258, para. 5.115, quoting January 2011 UNITAR/UNOSAT Report (CRM, Vol.
IV, Annex 148). 12 September 2011 727 (“Update 3”), and 8 November 2011 728 (“Update 4”),
respectively. Costa Rica, how ever, only annexed two of these four – Update 2
and Update 4 – to its Memorial, and it neglected to include the portions of the
729
document titles that make plain the existence of at least two other updates.
Although not annexed to the Memorial, Update 1 wa s – at least as of July 2012 –
available on the Costa Rican Foreign Ministry’s website, 730but Update 3 is
included neither in the annexes to the Memorial, nor on Costa Rica’s government
websites, nor anywhere else on the internet. This is odd, given that P rofessor
Thorne apparently not only received a copy of Update 3, but also cites it in his
731
expert report.
5.271 Regardless, the UNITAR/UNOSAT update reports that are
available to Nicaragua demonstrate that the “risks” outlined in the January 2011
UNITAR/UNOSAT Report – i.e., that a completed cut through the meander 400
meters upstream from the entrance to the caño would increase the amount of water
732
in the caño and widen it – are nonexistent. By the time of the preparation of
727See Thorne, p. III-4, citing UNITAR/UNOSAT, “Update 3: Morphological and Environmental
Change Assessment: San Juan River Area, Costa Rica,” Report to the Government of Costa Rica
728 – Version 4.0, 12 September 2011.
UNITAR/UNOSAT, “Update 4: Morphological & Environmental Change Assessment for the
san Juan River, Costa Rica (Covering the Period from 7 June to 25 October 2011),” 8 November
2011 (CRM. Vol. IV, Annex 150).
729See CRM, Vol. IV, pp. 2, 147 & 157.
730
This report concluded that from 14 December 2010 to 24 January 2011 there was “no
significant change” in the caño connecting the San Juan River to the Harbor Head Lagoon – “no
indication of additional structural changes” and no ongoing problem of erosion.
UNITAR/UNOSAT Update 1 (NCM, Vol. IV, Annex 113).
731See Thorne, pp. I-54, I-55, I-76, II-47 & III-4.
732CRM, para. 5.115, quoting January 2011 UNITAR/UNOSAT Report (CRM, Vol. IV, Annex
148).
27812 September 2011 727(“Update 3”), and 8 November 2011 728(“Update 4”),
respectively. Costa Rica, how ever, only annexed two of these four – Update 2
and Update 4 – to its Memorial, and it neglected to include the portions of the
729
document titles that make plain the existence of at least two other updates.
Although not annexed to the Memorial, Update 1 wa s – at least as of July 2012 –
available on the Costa Rican Foreign Ministry’s website, 730but Update 3 is
included neither in the annexes to the Memorial, nor on Costa Rica’s government
websites, nor anywhere else on the internet. This is odd, given that P rofessor
Thorne apparently not only received a copy of Update 3, but also cites it in his
731
expert report.
5.271 Regardless, the UNITAR/UNOSAT update reports that are
available to Nicaragua demonstrate that the “risks” outlined in the January 2011
UNITAR/UNOSAT Report – i.e., that a completed cut through the meander 400
meters upstream from the entrance to the caño would increase the amount of water
732
in the caño and widen it – are nonexistent. By the time of the preparation of
727See Thorne, p. III-4, citing UNITAR/UNOSAT, “Update 3: Morphological and Environmental
Change Assessment: San Juan River Area, Costa Rica,” Report to the Government of Costa Rica
728 – Version 4.0, 12 September 2011.
UNITAR/UNOSAT, “Update 4: Morphological & Environmental Change Assessment for the
san Juan River, Costa Rica (Covering the Period from 7 June to 25 October 2011),” 8 November
2011 (CRM. Vol. IV, Annex 150).
729See CRM, Vol. IV, pp. 2, 147 & 157.
730
This report concluded that from 14 December 2010 to 24 January 2011 there was “no
significant change” in the caño connecting the San Juan River to the Harbor Head Lagoon – “no
indication of additional structural changes” and no ongoing problem of erosion.
UNITAR/UNOSAT Update 1 (NCM, Vol. IV, Annex 113).
731See Thorne, pp. I-54, I-55, I-76, II-47 & III-4.
732CRM, para. 5.115, quoting January 2011 UNITAR/UNOSAT Report (CRM, Vol. IV, Annex
148). exist if Nicaragua’s dredging activities and plans were radically more ambitious
than they actually are.
5.273 In short, Costa Rica simply has not demonstrated that Nicaragua’s
activities pose a threat to either the environment of Costa Rica or the navigability
of its rivers.
(a) No Risk of Harm to Costa Rica’s Environment
5.274 Neither Nicaragua’s manual clearing of the caño nor its dredging of
the San Juan River pose any risk of harm to Costa Rica’s environment. Costa
Rica’s own expert confirms this.
5.275 As to the now-completed work to clear the caño, Professor Thorne
concludes that longer -term impacts of the caño on the “hydrology, hydraulics,
737
sediment dynamics, and morphology” of the San Juan River “will, like the
short-term impacts, be small or negligible,” 738and that “the on- going, adverse
impacts of the ‘Caño’ on the Harbor Head Lagoon and wetland are likely to
diminish with time.” 739
5.276 Regarding the dredging program, Professor Thorne states that, in
general, dredging “has direct, short -term impacts on river environments and
ecosystems through disturbing aquatic flora and fauna, destroying benthic
communities and, potentially, increasing turbidity and reducing water quality,
737
Thorne, p. iv.
738Ibid., p. I-63 (emphasis added).
739Ibid., p. I-70 (emphasis added).
280exist if Nicaragua’s dredging activities and plans were radically more ambitious
than they actually are.
5.273 In short, Costa Rica simply has not demonstrated that Nicaragua’s
activities pose a threat to either the environment of Costa Rica or the navigability
of its rivers.
(a) No Risk of Harm to Costa Rica’s Environment
5.274 Neither Nicaragua’s manual clearing of the caño nor its dredging of
the San Juan River pose any risk of harm to Costa Rica’s environment. Costa
Rica’s own expert confirms this.
5.275 As to the now-completed work to clear the caño, Professor Thorne
concludes that longer -term impacts of the caño on the “hydrology, hydraulics,
737
sediment dynamics, and morphology” of the San Juan River “will, like the
short-term impacts, be small or negligible,” 738and that “the on- going, adverse
impacts of the ‘Caño’ on the Harbor Head Lagoon and wetland are likely to
diminish with time.” 739
5.276 Regarding the dredging program, Professor Thorne states that, in
general, dredging “has direct, short -term impacts on river environments and
ecosystems through disturbing aquatic flora and fauna, destroying benthic
communities and, potentially, increasing turbidity and reducing water quality,
737
Thorne, p. iv.
738Ibid., p. I-63 (emphasis added).
739Ibid., p. I-70 (emphasis added). the banks would not be expected in response to the cumulative effects of site or
745
reach-scale dredging alone.”
5.279 In short, Costa Rica’s own expert concedes that the project does not
pose any significant risk of harm to the environment. As a result, Costa Rica’s
case regarding the risks that Nicaragua’s activities supposedly pose to Costa
Rica’s environment is largely built on the allegation that its efforts are actually
aimed at “redirecting the river’s path in a straight direction towards the newly
constructed caño” in order to deviate the San Juan through the channel and into
746
Harbor head Lagoon. Such wholesale deviation of the River through the caño
would, Costa Rica asserts, cause “additi onal permanent damage to Costa Rican
territory.” 747
5.280 With regard to these hypothetical risks of a project that Nicaragua
has no intention of undertaking, Professor Thorne states that if Nicaragua were to
widen the caño through “further and repeated capital works followed by
maintenance digging and dredging to enlarge and keep the channel open” in order
to divert the San Juan River along the caño’s course and into Harbor Head
748
Lagoon, this “would be highly damaging to the river and its environment” and
745Ibid., p. II-41 (emphasis added).
746See CRM, p. 226, para. 5.62.
747
748Ibid., p. 69, para. 3.1.
Thorne, p. I-64.
282the banks would not be expected in response to the cumulative effects of site or
745
reach-scale dredging alone.”
5.279 In short, Costa Rica’s own expert concedes that the project does not
pose any significant risk of harm to the environment. As a result, Costa Rica’s
case regarding the risks that Nicaragua’s activities supposedly pose to Costa
Rica’s environment is largely built on the allegation that its efforts are actually
aimed at “redirecting the river’s path in a straight direction towards the newly
constructed caño” in order to deviate the San Juan through the channel and into
746
Harbor head Lagoon. Such wholesale deviation of the River through the caño
would, Costa Rica asserts, cause “additi onal permanent damage to Costa Rican
territory.” 747
5.280 With regard to these hypothetical risks of a project that Nicaragua
has no intention of undertaking, Professor Thorne states that if Nicaragua were to
widen the caño through “further and repeated capital works followed by
maintenance digging and dredging to enlarge and keep the channel open” in order
to divert the San Juan River along the caño’s course and into Harbor Head
748
Lagoon, this “would be highly damaging to the river and its environment” and
745Ibid., p. II-41 (emphasis added).
746See CRM, p. 226, para. 5.62.
747
748Ibid., p. 69, para. 3.1.
Thorne, p. I-64. “not impossible.” A hypothetical – and admittedly unlikely – possibility does not
constitute actionable risk.
5.284 This conclusion has been confir med by Nicaragua’s experts, all of
whom have reached the same essential conclusion: “By virtue of its small scale,
the impacts of the dredging program are minor,” and there is no meaningful risk
that the San Juan River will deviate substantially from its n atural course. 753
Indeed, “the San Juan and Colorado Rivers experience seasonal flow variations
that are much greater than the change in discharge that is likely to result from
Nicaragua’s dredging activities,” making “the rivers themselves as well as all o f
the species who live in or rely upon them…accustomed to more fluctuation than
the dredging will cause. This is another indicator that any negative environmental
effect of Nicaragua’s modest activities will be insignificant.” 754 In short, “[t]he
ominous predictions of environmental collapse if the dredging is continued and
the Caño maintained are not justified based on scientific evidence presented, but
are rather assertions that exaggerate the potential impacts.” 755
5.285 Moreover, Nicaragua’s dredging program is actually important for
preserving the environment, including portions of Costa Rica’s territory. As
Professor Thorne correctly notes, without human intervention, the Lower San
Juan will be “a declining river” because it will “silt and lose conveyance
753
Kondolf, Section 2.12 ( Appendix 1) ; see also 2012 Van Rhee & De Vriend Supplemental
754ort, Chapter 2 (Appendix 2).
7552012 Van Rhee & De Vriend Supplemental Report, Chapter 3.1 ( Appendix 2).
Kondolf, Section 1.2 (Appendix 1).
284“not impossible.” A hypothetical – and admittedly unlikely – possibility does not
constitute actionable risk.
5.284 This conclusion has been confir med by Nicaragua’s experts, all of
whom have reached the same essential conclusion: “By virtue of its small scale,
the impacts of the dredging program are minor,” and there is no meaningful risk
that the San Juan River will deviate substantially from its n atural course. 753
Indeed, “the San Juan and Colorado Rivers experience seasonal flow variations
that are much greater than the change in discharge that is likely to result from
Nicaragua’s dredging activities,” making “the rivers themselves as well as all o f
the species who live in or rely upon them…accustomed to more fluctuation than
the dredging will cause. This is another indicator that any negative environmental
effect of Nicaragua’s modest activities will be insignificant.” 754 In short, “[t]he
ominous predictions of environmental collapse if the dredging is continued and
the Caño maintained are not justified based on scientific evidence presented, but
are rather assertions that exaggerate the potential impacts.” 755
5.285 Moreover, Nicaragua’s dredging program is actually important for
preserving the environment, including portions of Costa Rica’s territory. As
Professor Thorne correctly notes, without human intervention, the Lower San
Juan will be “a declining river” because it will “silt and lose conveyance
753
Kondolf, Section 2.12 ( Appendix 1) ; see also 2012 Van Rhee & De Vriend Supplemental
754ort, Chapter 2 (Appendix 2).
7552012 Van Rhee & De Vriend Supplemental Report, Chapter 3.1 ( Appendix 2).
Kondolf, Section 1.2 (Appendix 1). 761
freshwater flow to the river mouth” would “depriv[e surrounding] habitats there
of freshwater inflow upon which they now depend,” causing “serious and
irreversible morphological and environmental degradation.” 762 Thus, “it would
follow that perhaps some steps should be taken to improve flow conditions in the
San Juan” 76and that Nicaragua’s “dredging program, by potentially keeping the
San Juan distributary flowing, could actually produce an environmental
benefit.” 764
5.287 The same can be said of the relationship between Nicaragua’s
dredging program and the need to maintain the morphology of the area at the
River’s mouth, which Costa Rica insists is an important environmental
765
consideration. Reducing flows in the Lower San Juan would dramatically
reduce sediment transport to the mouth of the river, which would have a
significant influence on the morphology of the coastal area. According to
Professors van Rhee and de Vriend, “[e]rosion of the coast line that is no longer
receiving sediment deposits from river flow will be the inevitable result, together
with the associated loss of natural habitat and other environmental
766
consequences.” This process is already underway as a result of the reduction in
the San Juan’s flow since the nineteenth century, which – as is clear from
Professor Thorne’s analysis of the geomorphology of the delta region – has
761
762Ibid.
763Ibid., Section 2.12.
764Ibid.
Ibid., Section 1.2.
765See CRM, Chapter 5.
7662012 Van Rhee & De Vriend Supplemental Report, Chapter 3.2 (Appendix 2).
286 761
freshwater flow to the river mouth” would “depriv[e surrounding] habitats there
of freshwater inflow upon which they now depend,” causing “serious and
irreversible morphological and environmental degradation.” 762 Thus, “it would
follow that perhaps some steps should be taken to improve flow conditions in the
San Juan” 76and that Nicaragua’s “dredging program, by potentially keeping the
San Juan distributary flowing, could actually produce an environmental
benefit.” 764
5.287 The same can be said of the relationship between Nicaragua’s
dredging program and the need to maintain the morphology of the area at the
River’s mouth, which Costa Rica insists is an important environmental
765
consideration. Reducing flows in the Lower San Juan would dramatically
reduce sediment transport to the mouth of the river, which would have a
significant influence on the morphology of the coastal area. According to
Professors van Rhee and de Vriend, “[e]rosion of the coast line that is no longer
receiving sediment deposits from river flow will be the inevitable result, together
with the associated loss of natural habitat and other environmental
766
consequences.” This process is already underway as a result of the reduction in
the San Juan’s flow since the nineteenth century, which – as is clear from
Professor Thorne’s analysis of the geomorphology of the delta region – has
761
762Ibid.
763Ibid., Section 2.12.
764Ibid.
Ibid., Section 1.2.
765See CRM, Chapter 5.
7662012 Van Rhee & De Vriend Supplemental Report, Chapter 3.2 (Appendix 2). which has reduced the amount of sediment to be remove d by over 70% – will be
even less.
5.290 Moreover, as noted above, at the January 2011 hearing on
provisional measures Nicaragua presented the Court with the expert report of
Professors van Rhee and de Vriend of the Delft University of Technology, which
confirmed the conclusions of Nicaragua’s EIS and further concluded that,
“conservatively estimated,” the dredging project as described in the EIS – that is,
the broader project that was initially envisioned and authorized – was “likely to
decrease no more than 20 cubic meters per second of the flow in the Colorado
River (which is of the order of 1400- 1700 m3/s).” 769 This would constitute a
770
reduction of flow of less than 2% of the maximum flow in the Colorado River.
In its Memorial, Costa Rica made no attempt to refute these conclusions of
Professors van Rhee and de Vriend, who have since confirmed and updated their
findings based on actual conduct of the dredging project and its further reduced
scope. 771
5.291 Indeed, Costa Rica itself reached the same conclusion in September
2010, when its Foreign Minister, René Castro Salazar, reported to the
Environmental Commission of the Costa Rican Legislative Assembly that Costa
Rican experts had “developed a volume calculation model that projects the impact
on the volume of the Colorado River from the different types of projects and
769
2011 Van Rhee & De Vriend Report, p. 4 (Appendix 2).
770See ibid., see also CR 2011/2, p. 40, para. 26 (Reichler).
7712012 Van Rhee & De Vriend Supplemental Report, Chapter 3.2 ( Appendix 2).
288which has reduced the amount of sediment to be remove d by over 70% – will be
even less.
5.290 Moreover, as noted above, at the January 2011 hearing on
provisional measures Nicaragua presented the Court with the expert report of
Professors van Rhee and de Vriend of the Delft University of Technology, which
confirmed the conclusions of Nicaragua’s EIS and further concluded that,
“conservatively estimated,” the dredging project as described in the EIS – that is,
the broader project that was initially envisioned and authorized – was “likely to
decrease no more than 20 cubic meters per second of the flow in the Colorado
River (which is of the order of 1400- 1700 m3/s).” 769 This would constitute a
770
reduction of flow of less than 2% of the maximum flow in the Colorado River.
In its Memorial, Costa Rica made no attempt to refute these conclusions of
Professors van Rhee and de Vriend, who have since confirmed and updated their
findings based on actual conduct of the dredging project and its further reduced
scope. 771
5.291 Indeed, Costa Rica itself reached the same conclusion in September
2010, when its Foreign Minister, René Castro Salazar, reported to the
Environmental Commission of the Costa Rican Legislative Assembly that Costa
Rican experts had “developed a volume calculation model that projects the impact
on the volume of the Colorado River from the different types of projects and
769
2011 Van Rhee & De Vriend Report, p. 4 (Appendix 2).
770See ibid., see also CR 2011/2, p. 40, para. 26 (Reichler).
7712012 Van Rhee & De Vriend Supplemental Report, Chapter 3.2 ( Appendix 2). Nicaragua’s EIS or authorized by MARENA – would diminish the flow of the
Colorado River by only 4.5%. 776
5.293 Professor Thorne agrees with the assessment that the project will
not negatively impact the flow of the Colorado River, despite the fact that he has
drastically overestimated the scope of Nicaragua’s dredging project in running his
HEC-RAS model, as discussed above. He reports that, “[t]o date, there is no
evidence that the dredging program has significantly affected flows in the Rio
777
Colorado.” As to the risk of future harm to the Colorado River, Professor
Thorne characterizes such risk as the even “less likely but not impossible ‘worst -
778
case’ scenario” that “migh t” result from the already “unlikely, but not
impossible” synergistic interaction of the dredging program with the cutting of
meanders and (wholly hypothetical) efforts to enlarge the caño.” 779 Put simply,
Professor Thorne has found no meaningful risk of harm to the Colorado’s flow.
5.294 Dr. Kondolf confirms this analysis: “Given the small scale of the
dredging program, it is extremely unlikely to harm the flow of the Colorado
River.” 780
776C.S. Diseño, “Study of flow behavior in the bifurcation San Juan River – Colorado River,” p. 5
(NCM, Vol. II, Annex 11). It also illustrates that the 12% reduction, which Foreign Minister
Castro said in September 2010 would not materially affect the flow of the Colorado or cause
material environmental impacts, would only result from dredging the San Juan to a width of 180
meters – eight to nine times wider than Nicaragua proposed, much less authorized, during the EIA
777cess. Ibid.
Thorne, IV-3.
778Ibid., p. II-42.
779Ibid., p. II-41.
780Kondolf, Section 1.2 (Appendix 1); see also Section 2.12.
290Nicaragua’s EIS or authorized by MARENA – would diminish the flow of the
Colorado River by only 4.5%. 776
5.293 Professor Thorne agrees with the assessment that the project will
not negatively impact the flow of the Colorado River, despite the fact that he has
drastically overestimated the scope of Nicaragua’s dredging project in running his
HEC-RAS model, as discussed above. He reports that, “[t]o date, there is no
evidence that the dredging program has significantly affected flows in the Rio
777
Colorado.” As to the risk of future harm to the Colorado River, Professor
Thorne characterizes such risk as the even “less likely but not impossible ‘worst -
778
case’ scenario” that “migh t” result from the already “unlikely, but not
impossible” synergistic interaction of the dredging program with the cutting of
meanders and (wholly hypothetical) efforts to enlarge the caño.” 779 Put simply,
Professor Thorne has found no meaningful risk of harm to the Colorado’s flow.
5.294 Dr. Kondolf confirms this analysis: “Given the small scale of the
dredging program, it is extremely unlikely to harm the flow of the Colorado
River.” 780
776C.S. Diseño, “Study of flow behavior in the bifurcation San Juan River – Colorado River,” p. 5
(NCM, Vol. II, Annex 11). It also illustrates that the 12% reduction, which Foreign Minister
Castro said in September 2010 would not materially affect the flow of the Colorado or cause
material environmental impacts, would only result from dredging the San Juan to a width of 180
meters – eight to nine times wider than Nicaragua proposed, much less authorized, during the EIA
777cess. Ibid.
Thorne, IV-3.
778Ibid., p. II-42.
779Ibid., p. II-41.
780Kondolf, Section 1.2 (Appendix 1); see also Section 2.12. untold hectares of land in the process. Before casting stones at Nicaragua, Costa
Rica should put its own house in order.
292untold hectares of land in the process. Before casting stones at Nicaragua, Costa
Rica should put its own house in order. area constitutes a novel, “ex post facto” claim that is inconsistent with the settle d
understanding of the Parties. 781As will be seen, Costa Rica is mistaken.
A. NICARAGUA’S ALLEGED ‘FAILURE’ TO RAISE A DISPUTE
6.4. Costa Rica bases its case in large measure on the existence of a
number of maps that purport to show the international boundary following the line
782
it claims. From this, Costa Rica would have the Court draw the conclusion that
there was a settled understanding between the Parties as to the location and
direction of the boundary between them, neither of which Nicaragua ever
783
challenged. The facts are to the contrary, however. Nicaragua never
considered settled the boundary currently claimed by Costa Rica. Nor did it
accept as definitive any maps that depict the border as following the present
westward bend of the River. If Nicaragua never formally raised the existence of a
dispute, it was only because it understood Costa Rica to agree that the Parties had
not yet engaged in the joint cartographic exercise necessary to draw the modern
boundary with precision. There was thus no occasion to raise an issue on which
Nicaragua considered there to be an alignment of views. This was all the more
true because, as discussed in Section D below, Nicaragua considered itself to be in
possession of the area. In this respect too, there was no active opposition of views.
6.5. The reality is that the boundary as depicted on the maps Costa Rica
is so fond of invoking was never accepted as accurate by either Party, not just
781CRM, paras. 4.70-87.
782CRM, paras. 2.50-2.58, 4.20-4.22.
783CRM, paras. 4.38-4.42.
294area constitutes a novel, “ex post facto” claim that is inconsistent with the settle d
understanding of the Parties. 781As will be seen, Costa Rica is mistaken.
A. NICARAGUA’S ALLEGED ‘FAILURE’ TO RAISE A DISPUTE
6.4. Costa Rica bases its case in large measure on the existence of a
number of maps that purport to show the international boundary following the line
782
it claims. From this, Costa Rica would have the Court draw the conclusion that
there was a settled understanding between the Parties as to the location and
direction of the boundary between them, neither of which Nicaragua ever
783
challenged. The facts are to the contrary, however. Nicaragua never
considered settled the boundary currently claimed by Costa Rica. Nor did it
accept as definitive any maps that depict the border as following the present
westward bend of the River. If Nicaragua never formally raised the existence of a
dispute, it was only because it understood Costa Rica to agree that the Parties had
not yet engaged in the joint cartographic exercise necessary to draw the modern
boundary with precision. There was thus no occasion to raise an issue on which
Nicaragua considered there to be an alignment of views. This was all the more
true because, as discussed in Section D below, Nicaragua considered itself to be in
possession of the area. In this respect too, there was no active opposition of views.
6.5. The reality is that the boundary as depicted on the maps Costa Rica
is so fond of invoking was never accepted as accurate by either Party, not just
781CRM, paras. 4.70-87.
782CRM, paras. 2.50-2.58, 4.20-4.22.
783CRM, paras. 4.38-4.42. th
6.8. The Bi-national Commission held its 5 Meeting in October 2006
in San Jose, Costa Rica. The delegations were again headed by the Foreign
Ministers of the two States. At this meeting, the two delegations agreed that the
Territorial Institute of Nicaragua (INETER) and the Geographic Institute of Costa
Rica (IGN) should continue their geodesic studies in order to determine the
precise location of Marker I; that is, the location of the land boundary terminus on
the Caribbean coast in the area now in dispute. 786
th
6.9. Subsequently, at the 7 Meeting of the Bilateral Commission in
San Jose in October 2008, it was agreed that INETER and IGN would begin the
process of preparing the basic compatible cartography in the common border
area .787
6.10. The records of these meetings thus reflect a mutual recognition of
the absence of fully satisfactory or accurate maps depicting the actual border.
They also reflect a mutual understanding of the fact that the exact location of the
boundary was not defined with precision, particularly in the area presently in
dispute. This is perhaps most obvious in the Parties’ 2006 agreement to work
together to determine the precise location of Marker I on the Caribbean coast in
the vicinity of the Harbour Head Lagoon. Nicaragua would respectfully ask: if
there is no agreement on the loc ation of Marker I, and Marker II is located 138
786Final Record of the V Binational Nicaragua -Costa Rica Commission (19 -20 October 2006)
(NCM, Vol. III, Annex 78 (3)
787See VII Meeting of the Nicaragua – Costa Rica Bi-national Commission (3 Oct. 2008). NCM,
Vol. III, Annex 78 (4.)
296 th
6.8. The Bi-national Commission held its 5 Meeting in October 2006
in San Jose, Costa Rica. The delegations were again headed by the Foreign
Ministers of the two States. At this meeting, the two delegations agreed that the
Territorial Institute of Nicaragua (INETER) and the Geographic Institute of Costa
Rica (IGN) should continue their geodesic studies in order to determine the
precise location of Marker I; that is, the location of the land boundary terminus on
the Caribbean coast in the area now in dispute. 786
th
6.9. Subsequently, at the 7 Meeting of the Bilateral Commission in
San Jose in October 2008, it was agreed that INETER and IGN would begin the
process of preparing the basic compatible cartography in the common border
area .787
6.10. The records of these meetings thus reflect a mutual recognition of
the absence of fully satisfactory or accurate maps depicting the actual border.
They also reflect a mutual understanding of the fact that the exact location of the
boundary was not defined with precision, particularly in the area presently in
dispute. This is perhaps most obvious in the Parties’ 2006 agreement to work
together to determine the precise location of Marker I on the Caribbean coast in
the vicinity of the Harbour Head Lagoon. Nicaragua would respectfully ask: if
there is no agreement on the loc ation of Marker I, and Marker II is located 138
786Final Record of the V Binational Nicaragua -Costa Rica Commission (19 -20 October 2006)
(NCM, Vol. III, Annex 78 (3)
787See VII Meeting of the Nicaragua – Costa Rica Bi-national Commission (3 Oct. 2008). NCM,
Vol. III, Annex 78 (4.) Parties. As described in Section D below, Nicaragua has continuously exercised
undisputed sovereignty over the area, including but not limited to the past 30
years. This conclusion is supported not onl y by the affidavits Nicaragua
submitted at the time of the hearings on Provisional Measures in January 2011 but
also by contemporaneous documentary evidence.
6.14. Nicaragua recalls that during the hearings on Provisional Measures,
a Member of the Court asked Nicaragua:
“Considering the physical changes in the area of the delta of
the San Juan River already known at the time of the
Cleveland and Alexander awards, why has Nicaragua, within
the last century or so, never made an attempt to negotiate a
new cour791of the boundary, or at least to change its
maps?”
6.15. The answer is simple and flows from points stated above. Namely:
• First, as reflected in the agreements of the Bi -National Commission, both
Parties understood that the cartography of the border area was neither
reliable nor accurate, and that this problem remained to be addressed.
• Second and relatedly, the existing maps (which, as elaborated below, are
contradictory in any event) did not reflect a definitive boundary. That is
why they all bear the legendthat they had not been verified on the ground.
79CR 2011/4, p. 40, para. 1 (Simma).
298 • Third, Nicaragua had been acting as sovereign over the area in dispute for
many years without any objections, much less an active competing claim,
from Costa Rica.
6.16. To these three points, a fourth can be adde d. As detailed in the
next Section, the text of the Alexander Award describes the boundary clearly and
in a manner that confirms Nicaragua’s position. There was therefore no need for
Nicaragua to raise a dispute about a matter about which there was no active
opposition of views.
6.17. It is in view of the above mentioned reasons that since the very first
exchange of notes regarding the events of October 2010, Nicaragua proposed to
retake in the “Bi -National Commission the actions of densification and marking
of the boundary (demarcation) in accordance with the rights established in Jérez -
Cañas Treaty of Limits and its instruments, Cleveland Award and Alexander
Awards” 792.
6.18. Meanwhile, Costa Rica’s reaction to Nicaragua’s proposals for an
immediate dialogue or for the meeting of the bi -national commission already
scheduled for November was the deployment to the border of no less than 50
792CRM, Volume III, Annex 48, Note from the Minister of Foreign Affairs of Nicaragua to the
Minister of Foreign Affairs and Workship of Costa Rica, Ref: MRE/DVM/AJST/660/10/10,
26 October 2010.
299 793
members of the Costa Rican National Police heavily armed and the closure of
all bilateral diplomatic channels with Nicaragua 794..
6.19. Costa Rica had no intention whatsoever to discuss and solve the
situation with Nicaragua on a bilateral level, but rather went to the Organization
of American States with the intention of continuing and escalating a political
show, after having closed the diplomatic channels that traditionally existed among
both nations.
6.20. During the OAS meetings Nicaragua from the first moment
reminded Costa Rica of the agreements of previous meetings of the Bi -National
Commission, and expressed that the current situation should be seen and solved
within that context. Furthermore, Nicaragua stated in case the bilateral dialogue
was not fruitful, that the forum to deal with boundary delimitation issues was the
International Court of Justice and not the OAS. On 2 November 2010 the
President of Nicaragua announced that Nicaragua would bring the issue before the
793
“…Costa Rica begun a military operation along its northern boder…Barra del Colorado, the
small village in northeast Costa Rica, has become an armed camp. The local community center has
been taken over as a command center, and security ministry aircraft, fixed wings and helicopters,
are making numerous flights. At least 50 security ministry troops are on the ground, and many are
in battle dress with heavy weaponry…Fuerza Pública officers resembled soldiers. They are
wearing battle helmets, carrying M -16 rifles and a few weapons described as 50- caliber machine
guns…Many are dressed in camouflage and wearing bullet -proof vests…”, A.M. Costa Rica Third
NewsPage, Costa Rica mobilizes troops along Nicaraguan line, 22 October 2010, available at
http://www.amcostarica.com/102210.htm (last visited 21 July 2012) (NCM, Vol.III ,Annex 94.);
see also TicoTimes.net, Costa Rican Police forces sent to Nicaraguan Border, 22 October 2010
available at http://www.ticotimes.net/Current-Edition/News-Briefs/Costa-Rican-Police…-
Sent-to-Nicaraguan-Border_Friday-October-22-2010 (last visited 21 July 2 012)
794M, Vol III. ,Annex 92(1)).
See CRM, Volume III, Annex 49, Note from the Minister of Foreign Affairs and Worship of
Costa Rica to the Ministry of Foreign Affairs of Nicaragua, Ref: DM -430-10, 1 November 2010.
Costa Rica conditions the bilateral meeting to the suspension of the dredging works on the river.
300 793
members of the Costa Rican National Police heavily armed and the closure of
all bilateral diplomatic channels with Nicaragua 794..
6.19. Costa Rica had no intention whatsoever to discuss and solve the
situation with Nicaragua on a bilateral level, but rather went to the Organization
of American States with the intention of continuing and escalating a political
show, after having closed the diplomatic channels that traditionally existed among
both nations.
6.20. During the OAS meetings Nicaragua from the first moment
reminded Costa Rica of the agreements of previous meetings of the Bi -National
Commission, and expressed that the current situation should be seen and solved
within that context. Furthermore, Nicaragua stated in case the bilateral dialogue
was not fruitful, that the forum to deal with boundary delimitation issues was the
International Court of Justice and not the OAS. On 2 November 2010 the
President of Nicaragua announced that Nicaragua would bring the issue before the
793
“…Costa Rica begun a military operation along its northern boder…Barra del Colorado, the
small village in northeast Costa Rica, has become an armed camp. The local community center has
been taken over as a command center, and security ministry aircraft, fixed wings and helicopters,
are making numerous flights. At least 50 security ministry troops are on the ground, and many are
in battle dress with heavy weaponry…Fuerza Pública officers resembled soldiers. They are
wearing battle helmets, carrying M -16 rifles and a few weapons described as 50- caliber machine
guns…Many are dressed in camouflage and wearing bullet -proof vests…”, A.M. Costa Rica Third
NewsPage, Costa Rica mobilizes troops along Nicaraguan line, 22 October 2010, available at
http://www.amcostarica.com/102210.htm (last visited 21 July 2012) (NCM, Vol.III ,Annex 94.);
see also TicoTimes.net, Costa Rican Police forces sent to Nicaraguan Border, 22 October 2010
available at http://www.ticotimes.net/Current-Edition/News-Briefs/Costa-Rican-Police…-
Sent-to-Nicaraguan-Border_Friday-October-22-2010 (last visited 21 July 2 012)
794M, Vol III. ,Annex 92(1)).
See CRM, Volume III, Annex 49, Note from the Minister of Foreign Affairs and Worship of
Costa Rica to the Ministry of Foreign Affairs of Nicaragua, Ref: DM -430-10, 1 November 2010.
Costa Rica conditions the bilateral meeting to the suspension of the dredging works on the river. English miles, measured from the ou796 fortifications of the
said Castilla to the said point.”
6.23. Like most significant watercourses, the San Juan River discharges
into the sea through a delta, its mouth undergoing changes over time due to such
factors as increases or decreases in flow and deposition of sediment. Be tween the
conclusion of the Treaty in 1858 and its interpretation by U.S. President
Cleveland in 1888, the area at the mouth of the river had already changed
significantly. Taking this characteristic of the San Juan into account, President
Cleveland, in his Arbitral Award of March 22, 1888, decided as follows with
respect to the location of the boundary:
“The boundary line between the Republics of Costa Rica and
Nicaragua, on the Atlantic side, begins at the extremity of Punta de
Castilla at the mouth of t he San Juan de Nicaragua River, as they
th
both existed on the 15 day of April, 1858. The ownership of any
accretion to said Punta de C797illa is to be governed by the laws
applicable to that subject.”
6.24. In his First Award rendered some nine years later, Ge neral
Alexander was called upon to implement President Cleveland’s decision.
Concerning the starting point of the boundary, Punta de Castilla, he said:
“A careful study of all available maps and comparisons between
those made before the treaty and those of recent date ... makes very
clear one fact: The exact spot which was the extremity of the
headland of Punta de Castillo [sic: Castilla] April 15, 1858, has
long been swept over by the Caribbean Sea, and there is too little
concurrence in the shore outline of the old maps to permit any
certainty of statement of distance or exact direction to it from the
present headland. ... Under these circumstances it best fulfills the
demands of the treaty and of President Cleveland’s award to adopt
796Costa Rica-Nicaragua Treaty of Limits (Jerez – Cañas), op cit., Art. II (CRM Vol II, Annex 1).
797 Cleveland Award , p. 209 (CRM, Vol. II, Annex 7).
302 English miles, measured from the ou796 fortifications of the
said Castilla to the said point.”
6.23. Like most significant watercourses, the San Juan River discharges
into the sea through a delta, its mouth undergoing changes over time due to such
factors as increases or decreases in flow and deposition of sediment. Be tween the
conclusion of the Treaty in 1858 and its interpretation by U.S. President
Cleveland in 1888, the area at the mouth of the river had already changed
significantly. Taking this characteristic of the San Juan into account, President
Cleveland, in his Arbitral Award of March 22, 1888, decided as follows with
respect to the location of the boundary:
“The boundary line between the Republics of Costa Rica and
Nicaragua, on the Atlantic side, begins at the extremity of Punta de
Castilla at the mouth of t he San Juan de Nicaragua River, as they
th
both existed on the 15 day of April, 1858. The ownership of any
accretion to said Punta de C797illa is to be governed by the laws
applicable to that subject.”
6.24. In his First Award rendered some nine years later, Ge neral
Alexander was called upon to implement President Cleveland’s decision.
Concerning the starting point of the boundary, Punta de Castilla, he said:
“A careful study of all available maps and comparisons between
those made before the treaty and those of recent date ... makes very
clear one fact: The exact spot which was the extremity of the
headland of Punta de Castillo [sic: Castilla] April 15, 1858, has
long been swept over by the Caribbean Sea, and there is too little
concurrence in the shore outline of the old maps to permit any
certainty of statement of distance or exact direction to it from the
present headland. ... Under these circumstances it best fulfills the
demands of the treaty and of President Cleveland’s award to adopt
796Costa Rica-Nicaragua Treaty of Limits (Jerez – Cañas), op cit., Art. II (CRM Vol II, Annex 1).
797Cleveland Award , p. 209 (CRM, Vol. II, Annex 7). was so great that he was even unable to determine that the “northwestern
extremity” was “solid land” –only that it “seem[ed] to be the solid land”.
6.28. In addition to ha ving to deal with the changes that had already
taken place, General Alexander also recognized the inevitability of continued
changes in the future. In ruling on a dispute between the parties as to whether to
demarcate the boundary line, General Alexander stated as follows in his Second
Award:
“It should be noted, for a clearer understanding of the question at
hand, that the San Juan river runs through a flat and sandy delta in
the lower portion of its course and that it is obviously possible that
its banks will not only gradually expand or contract but that there
will be wholesale changes in its channels. Such changes may
occur fairly rapidly and suddenly and may not always be the result
of unusual factors such as earthquakes or major storms. Examples
abound of previous channels now abandoned and banks that are
now changing as a result of gradual expansions or contractions.
“Today’s boundary line must necessarily be affected in future by
all these gradual or sudden changes. But the impact in each case
can only be determined by the circumstances of the case itself, on a
case-by-case basis in accordance with such principles of
international law as may be applicable.
“The proposed measurement and demarcation of the boundary line
will not have any effect on the application of those principles.
“The fact that the line has been measured and demarcated will
neither increase nor decrease any legal standing that it might have
had it not been measured or demarcated.
“The only effect obtained from measurement and demarcation is
that the nature and extent of future changes may be easier to
800
determine.”
800
Second Award at p. 224 (emphasis added) (CRM, Vol. II, Annex 10).
304was so great that he was even unable to determine that the “northwestern
extremity” was “solid land” –only that it “seem[ed] to be the solid land”.
6.28. In addition to ha ving to deal with the changes that had already
taken place, General Alexander also recognized the inevitability of continued
changes in the future. In ruling on a dispute between the parties as to whether to
demarcate the boundary line, General Alexander stated as follows in his Second
Award:
“It should be noted, for a clearer understanding of the question at
hand, that the San Juan river runs through a flat and sandy delta in
the lower portion of its course and that it is obviously possible that
its banks will not only gradually expand or contract but that there
will be wholesale changes in its channels. Such changes may
occur fairly rapidly and suddenly and may not always be the result
of unusual factors such as earthquakes or major storms. Examples
abound of previous channels now abandoned and banks that are
now changing as a result of gradual expansions or contractions.
“Today’s boundary line must necessarily be affected in future by
all these gradual or sudden changes. But the impact in each case
can only be determined by the circumstances of the case itself, on a
case-by-case basis in accordance with such principles of
international law as may be applicable.
“The proposed measurement and demarcation of the boundary line
will not have any effect on the application of those principles.
“The fact that the line has been measured and demarcated will
neither increase nor decrease any legal standing that it might have
had it not been measured or demarcated.
“The only effect obtained from measurement and demarcation is
that the nature and extent of future changes may be easier to
800
determine.”
800
Second Award at p. 224 (emphasis added) (CRM, Vol. II, Annex 10). Figure 6.1 802
Figure 6.1: 2010 Satellite Image
6.32. Today, the Harbour that, existed in 1858, in Alexander’s time has
disappeared.
6.33. One hundred and fifteen years ago, the “first channel met” may
have been the watercourse splitting eastward along the banks of the San Juan
Island (shown in Alexander’s sketch map). But that is no longer the case. Today,
and for some time now, there is a new “first channel met”; namely, the one in
dispute in this case.
802010 Satellite image (NCM, Vol. IV, Annex 136.).
306 Figure 6.1802
Figure 6.1: 2010 Satellite Image
6.32. Today, the Harbour that, existed in 1858, in Alexander’s time has
disappeared.
6.33. One hundred and fifteen years ago, the “first channel met” may
have been the watercourse splitting eastward along the banks of the San Juan
Island (shown in Alexander’s sketch map). But that is no longer the case. Today,
and for some time now, there is a new “first channel met”; namely, the one in
dispute in this case.
8022010 Satellite image (NCM, Vol. IV, Annex 136.). and the geographical references it makes, which can be appreciated in the sketchtch
and charts, belies this.is.
804 804
Figure 6.26.2
Figure 6.2 Sketch of the Harbour of Greytown-1897, First Alexander Award ofd of
30 September 1897.97.
804804
First Alexander Award, p. 221 (CRM, Vol. II, Annex 9).9).
308and the geographical references it makes, which can be appreciated in the sketch
and charts, belies this.
804
Figure 6.2
Figure 6.2 Sketch of the Harbour of Greytown-1897, First Alexander Award of
30 September 1897.
804
First Alexander Award, p. 221 (CRM, Vol. II, Annex 9). sector of what had been the bay of San Juan, and another eastern branch that
headed into the eastern section of the San Juan into what is called Harbor Head.
As can be appreciated in the sketch, Costa Rica claimed that the River followed
the western branch, but the Arbitrator decided that it followed the eastern branch
towards Harbor Head, leaving the island at the outlet entirely under Nicaraguan
sovereignty.
6.38. The Award makes these points in the following text:
“The great feature in the local geography of this bay, since our
earliest accounts of it, has been the existence of an island in its
outlet, called on some early maps the island of San Juan. It was an
island of such importance as to have been mentioned in 1820 by
two distinguished authors, quoted in the Costa Rican reply to
Nicaragua’s argument (page 12), and it is an island to -day, and so
appears in the map accompanying this award. The peculiarity of
this bay, to be noted, is that the river brings down ve ry little water
during the annual dry season. When that happens, particularly of
late years, sand bars, dry at all ordinary tides, but submerged more
or less and broken over by the waves at all high ones, are formed,
frequently reaching the adjacent headlands, so that a man might
cross dry-shod.”
“Now, the whole claim of Costa Rica is based upon the assumption
that on April 15, 1858, the date of the treaty, a connection existed
between the island and the eastern headland, and that this
converted the island into mainland, and carried the initial point of
the boundary over to the western extremity of the island. To this
claim there are at least two replies, either one seeming to me
conclusive.”
“First, the exact state of the bar on that day cannot be definite ly
proven, which would seem to be necessary before drawing
important conclusions.”
“However, as the date was near the end of the dry season, it is most
probable that there was such a connection between the island and
the eastern Costa Rican shore as has been described. But even if
that be true, it would be unreasonable to suppose that such
temporary connection could operate to change permanently the
310sector of what had been the bay of San Juan, and another eastern branch that
headed into the eastern section of the San Juan into what is called Harbor Head.
As can be appreciated in the sketch, Costa Rica claimed that the River followed
the western branch, but the Arbitrator decided that it followed the eastern branch
towards Harbor Head, leaving the island at the outlet entirely under Nicaraguan
sovereignty.
6.38. The Award makes these points in the following text:
“The great feature in the local geography of this bay, since our
earliest accounts of it, has been the existence of an island in its
outlet, called on some early maps the island of San Juan. It was an
island of such importance as to have been mentioned in 1820 by
two distinguished authors, quoted in the Costa Rican reply to
Nicaragua’s argument (page 12), and it is an island to -day, and so
appears in the map accompanying this award. The peculiarity of
this bay, to be noted, is that the river brings down ve ry little water
during the annual dry season. When that happens, particularly of
late years, sand bars, dry at all ordinary tides, but submerged more
or less and broken over by the waves at all high ones, are formed,
frequently reaching the adjacent headlands, so that a man might
cross dry-shod.”
“Now, the whole claim of Costa Rica is based upon the assumption
that on April 15, 1858, the date of the treaty, a connection existed
between the island and the eastern headland, and that this
converted the island into mainland, and carried the initial point of
the boundary over to the western extremity of the island. To this
claim there are at least two replies, either one seeming to me
conclusive.”
“First, the exact state of the bar on that day cannot be definite ly
proven, which would seem to be necessary before drawing
important conclusions.”
“However, as the date was near the end of the dry season, it is most
probable that there was such a connection between the island and
the eastern Costa Rican shore as has been described. But even if
that be true, it would be unreasonable to suppose that such
temporary connection could operate to change permanently the conceded this extensive and important territory to Costa Rica” and also found that
the San Juan branch was the branch heading east towards Harbour Head. General
Alexander compared Costa Rica’s claim that the border should follow the channel
in a westerly direction at the mout h of the River – leaving Harbour Head, the isle
of San Juan and the front section of the western remnants of the Bay of San Juan
under Costa Rican sovereignty – with the Nicaraguan claim that the border should
follow the Taura Branch located some 20 km up river.
6.40. What is clear in Alexander’s intention and the wording of his
Award is that, heading downstream, the border should follow a channel or caño
east into Harbour Head and not west in the direction of that sector of the Bay of
San Juan or much less dire ctly into the sea as Costa Rica now claims. If Costa
Rica’s claims were successful, Nicaragua would be left with a water enclave
(Harbour Head) surrounded by Costa Rican land territory and only accessible to
Nicaragua by sea. This result was never in Alexander’s mind. That is why he
carefully indicated that: “On reaching the waters of Harbor Head Lagoon the
boundary line shall turn to the left, or southeastward, and shall fol low the water’s
edge around the harbour until it reaches the river proper by the first channel met.”
806
6.41. The maps on which Costa Rica bases its claim follows the
present day stronger channel of the San Juan which heads westwards and ignore
any other channels that head eastward and leave the island of San Juan as part of
806
See e.g. CRM p. 61, Figure 2.8.
312conceded this extensive and important territory to Costa Rica” and also found that
the San Juan branch was the branch heading east towards Harbour Head. General
Alexander compared Costa Rica’s claim that the border should follow the channel
in a westerly direction at the mout h of the River – leaving Harbour Head, the isle
of San Juan and the front section of the western remnants of the Bay of San Juan
under Costa Rican sovereignty – with the Nicaraguan claim that the border should
follow the Taura Branch located some 20 km up river.
6.40. What is clear in Alexander’s intention and the wording of his
Award is that, heading downstream, the border should follow a channel or caño
east into Harbour Head and not west in the direction of that sector of the Bay of
San Juan or much less dire ctly into the sea as Costa Rica now claims. If Costa
Rica’s claims were successful, Nicaragua would be left with a water enclave
(Harbour Head) surrounded by Costa Rican land territory and only accessible to
Nicaragua by sea. This result was never in Alexander’s mind. That is why he
carefully indicated that: “On reaching the waters of Harbor Head Lagoon the
boundary line shall turn to the left, or southeastward, and shall fol low the water’s
edge around the harbour until it reaches the river proper by the first channel met.”
6.41. The maps on which Costa Rica bases its claim 806follows the
present day stronger channel of the San Juan which heads westwards and ignore
any other channels that head eastward and leave the island of San Juan as part of
806
See e.g. CRM p. 61, Figure 2.8. heading from the river proper into Harbour Head, the one which Nicaragua has
identified as complying with Alexander’s Award as being the “first channel met”,
is precisely the caño in d ispute in these proceedings. But whatever the changing
situation on the ground, the fact is that Alexander never conceived that the border,
heading downstream, should follow the river west (“the river proper”), but rather
a channel to the east into Harbour Head, from “the river proper”.
6.44. In sum, Costa Rica’s position turns the Award of 1897 on its head
and attempts to take from Nicaragua what the Arbitrator had seen as an “extensive
and important territory”.
C. THE CAÑO HAS LONG EXISTED IN ITS CURRENT
LOCATION
6.45. Costa Rica’s Memorial wisely does not deny that the boundary
must change as the river changes. Nor does it deny that if there is a new “first
channel met”, the boundary must follow that channel. General Alexander’s
Second Award leaves no room for doubt in either respect. What Costa Rica
chooses to argue instead is that the caño at issue in this case “never previously
807
existed” but rather is an “artificial canal” constructed by Nicaragua. But as
demonstrated below, Costa Rica is mistaken. The evidence, consisting of maps,
satellite images and photographs (some from Costa Rica itself), shows that a
channel has long existed in this location.
807
CRM, para. 5.93.
314heading from the river proper into Harbour Head, the one which Nicaragua has
identified as complying with Alexander’s Award as being the “first channel met”,
is precisely the caño in d ispute in these proceedings. But whatever the changing
situation on the ground, the fact is that Alexander never conceived that the border,
heading downstream, should follow the river west (“the river proper”), but rather
a channel to the east into Harbour Head, from “the river proper”.
6.44. In sum, Costa Rica’s position turns the Award of 1897 on its head
and attempts to take from Nicaragua what the Arbitrator had seen as an “extensive
and important territory”.
C. THE CAÑO HAS LONG EXISTED IN ITS CURRENT
LOCATION
6.45. Costa Rica’s Memorial wisely does not deny that the boundary
must change as the river changes. Nor does it deny that if there is a new “first
channel met”, the boundary must follow that channel. General Alexander’s
Second Award leaves no room for doubt in either respect. What Costa Rica
chooses to argue instead is that the caño at issue in this case “never previously
807
existed” but rather is an “artificial canal” constructed by Nicaragua. But as
demonstrated below, Costa Rica is mistaken. The evidence, consisting of maps,
satellite images and photographs (some from Costa Rica itself), shows that a
channel has long existed in this location.
807
CRM, para. 5.93. 6.49. That said, maps are, in Nicaragua’s view, not entirely irrelevant to
the issues in dispute. Costa Rica’s case is premised in large measure on the twin,
and very much inter-related, assertions that (1) the maps demonstrate an unbroken
international understanding that the boundary is where Costa Rica claims it to be;
and (2) that there is no evidence for the existence of the caño in dispute prior to
2010. Thus the existence of even a sing le map that shows the boundary where
Nicaragua claims it to be and/or that shows that a caño has long existed in the
current location is sufficient to remove the foundation of Costa Rica’s entire case.
As discussed in the subsection (2) below, there is much more than just a single
map to that effect. Indeed, there is more than one map from Costa Rica itself that
depicts the existence of the caño and shows the border following the course
advocated by Nicaragua.
6.50. The fact that different maps may not have depicted the presence of
the caño, or shown the boundary following its course, is unsurprising. Different
maps will be drawn with different degrees of precision based on different amounts
810
of information. The fact that a comparatively small feature like the caño may
not appear on some, or even most, maps cannot be considered proof of its non-
existence as such. It may well be that the preparers of the map in question were
simply copying from previous, out -dated maps and did not have enough current
information in their possession to record its presence. Indeed, as the records of
81See also Kondolf, Section 2.6, regarding the limitations of maps (NCM, Vol.I Appendix 1).
316 6.49. That said, maps are, in Nicaragua’s view, not entirely irrelevant to
the issues in dispute. Costa Rica’s case is premised in large measure on the twin,
and very much inter-related, assertions that (1) the maps demonstrate an unbroken
international understanding that the boundary is where Costa Rica claims it to be;
and (2) that there is no evidence for the existence of the caño in dispute prior to
2010. Thus the existence of even a sing le map that shows the boundary where
Nicaragua claims it to be and/or that shows that a caño has long existed in the
current location is sufficient to remove the foundation of Costa Rica’s entire case.
As discussed in the subsection (2) below, there is much more than just a single
map to that effect. Indeed, there is more than one map from Costa Rica itself that
depicts the existence of the caño and shows the border following the course
advocated by Nicaragua.
6.50. The fact that different maps may not have depicted the presence of
the caño, or shown the boundary following its course, is unsurprising. Different
maps will be drawn with different degrees of precision based on different amounts
810
of information. The fact that a comparatively small feature like the caño may
not appear on some, or even most, maps cannot be considered proof of its non-
existence as such. It may well be that the preparers of the map in question were
simply copying from previous, out -dated maps and did not have enough current
information in their possession to record its presence. Indeed, as the records of
810See also Kondolf, Section 2.6, regarding the limitations of maps (NCM, Vol.I Appendix 1). today as they were in 1961 when the first of the satellite images that Costa Rica
offered into evidence was taken. The caño is difficult to discern even in the most
modern satellite photographs taken soon after the time when Costa Rica c laims
Nicaragua artificially constructed it.
6.54. Accordingly, the mere fact that the caño is not as obvious as the
main flow of the San Juan is of little importance. What matters is that its contours
can be seen and traced even by the untrained eye (as can other caños in the same
area) in satellite images taken across a large expanse of time, from 1961, 1997 and
2007. Indeed, the fact that it can be seen at all, despite the difficulties associated
with the technology and terrain, is testament to its existen ce and persistence, as
demonstrated below.
2. The Existence of the Caño
6.55. Perhaps the most compelling evidence of the caño’s existence dates
back more than 60 years. In 1949, the National Geographic Institute of Costa
Rica issued a “Map of Costa Rica” that th e Applicant State helpfully includes as
Annex 176 to its Memorial. Nicaragua considers it telling that Costa Rica offers
the 1949 Map affirmatively, contending at paragraph 2.52 that this “official
cartography of Costa Rica” portrays the boundary line tha t Costa Rica now
claims. Costa Rica nowhere suggests that it questions the map’s reliability in any
respect. For reasons that will be immediately apparent, this 1949 map, an inset of
318today as they were in 1961 when the first of the satellite images that Costa Rica
offered into evidence was taken. The caño is difficult to discern even in the most
modern satellite photographs taken soon after the time when Costa Rica c laims
Nicaragua artificially constructed it.
6.54. Accordingly, the mere fact that the caño is not as obvious as the
main flow of the San Juan is of little importance. What matters is that its contours
can be seen and traced even by the untrained eye (as can other caños in the same
area) in satellite images taken across a large expanse of time, from 1961, 1997 and
2007. Indeed, the fact that it can be seen at all, despite the difficulties associated
with the technology and terrain, is testament to its existen ce and persistence, as
demonstrated below.
2. The Existence of the Caño
6.55. Perhaps the most compelling evidence of the caño’s existence dates
back more than 60 years. In 1949, the National Geographic Institute of Costa
Rica issued a “Map of Costa Rica” that th e Applicant State helpfully includes as
Annex 176 to its Memorial. Nicaragua considers it telling that Costa Rica offers
the 1949 Map affirmatively, contending at paragraph 2.52 that this “official
cartography of Costa Rica” portrays the boundary line tha t Costa Rica now
claims. Costa Rica nowhere suggests that it questions the map’s reliability in any
respect. For reasons that will be immediately apparent, this 1949 map, an inset of deemed to admit that there has long been a caño exactly where Nicaragua says
there is.
6.57. Nicaragua recognizes, of course, that the 1949 map does not depict
the international boundary as following the course of the caño that is so clearly
depicted on it. But that is of substantially lesser import than the fact of the caño’s
existence. Whether or not the boundary follows the caño or the river proper in the
area is largely a question of law for the Court to decide. While the depiction of a
boundary on a map may, depending on the circumstances, be s uggestive of a
State’s position on the legal question, it is not by itself conclusive of anything.
That is all the more true when, as here, there is compelling evidence to the
opposite effect, and when, as here, the arbitrator charged with demarcating the
boundary found that it was fluid.
6.58. In particular, twenty -two years after it produced the 1949 map,
Costa Rica’s National Geographic Institute, acting in collaboration with the Inter -
American Geodesic Service, produced another map that, although not depicti ng
the caño itself, depicts the international boundary as conforming to the essential
location and direction of the caño. An excerpt of that 1971 map appears below.
320deemed to admit that there has long been a caño exactly where Nicaragua says
there is.
6.57. Nicaragua recognizes, of course, that the 1949 map does not depict
the international boundary as following the course of the caño that is so clearly
depicted on it. But that is of substantially lesser import than the fact of the caño’s
existence. Whether or not the boundary follows the caño or the river proper in the
area is largely a question of law for the Court to decide. While the depiction of a
boundary on a map may, depending on the circumstances, be s uggestive of a
State’s position on the legal question, it is not by itself conclusive of anything.
That is all the more true when, as here, there is compelling evidence to the
opposite effect, and when, as here, the arbitrator charged with demarcating the
boundary found that it was fluid.
6.58. In particular, twenty -two years after it produced the 1949 map,
Costa Rica’s National Geographic Institute, acting in collaboration with the Inter -
American Geodesic Service, produced another map that, although not depicti ng
the caño itself, depicts the international boundary as conforming to the essential
location and direction of the caño. An excerpt of that 1971 map appears below. boundary as claimed by Costa Rica in this case. The map above disproves Costa
Rica’s central argument. Unlike the boundary that Costa Rica now claims, the
boundary with Nicaragua is shown on the 1971 Costa Rican map as turning east in
the direction of Harbour Head Lagoon before reaching the terminus of the western
channel of the river proper. The land at the northern tip of Harbour Head is
plainly shown as being Nicaraguan. Second, the fact that the border generally
tracks the location and direction of the caño constitutes additional evidence
suggestive of its existence. Put simply, there is no reason for the border to follow
the direction indicated on this map if not for the presence of an alternate water
course cutting its way through the swamps of the Harbour Head area into the
lagoon.
6.60. Nicaragua brought the 1971 map to the Court’s attention during the
course of the hearings on Provisional Measures in January 2011. Costa Rica’s
Memorial now asserts that this map contains a “material error”. 814 This is perhaps
predictable: how else could Costa Rica deal with this clear contradiction of its
fundamental position?
6.61. In her affidavit submitted with the Memorial, the Acting Director
of Costa Rica’s National Geographic Institute offers several justifications for this
“error”. 815She first notes that the map was printed abroad, so that any errors could
814CRM, para. 4.30.
815CRM, Annex 68, Note by the Acting Director of the National Geographic Institute of Costa
Rica (18 Jan. 2011).
322 816
not be detected before printing. True or not, they could certainly be detected
after. Yet, the Government of Costa Rica not only approved the map, it publicly
disseminated it.
6.62. The Acting Director also claims that once the error was detected
the map was “withdrawn fr om sale and circulation”. 817 Yet, aside from this
unsubstantiated assertion, there is no other evidence that Costa Rica actually
determined that the map was in “error” until this dispute arose.
6.63. The Acting Director still further speculates that the film us ed to
818
create the border could have accidentally moved during the map’s construction.
This, of course, is wishful thinking, not evidence. It would, moreover, be quite
remarkable if the film just happened to move accidentally to a location that just
happened to track the location of the caño as depicted on the 1949 Costa Rican
map, in regard to which no “error” has ever been identified by Costa Rica.
6.64. Costa Rica’s 1949 and 1971 maps are far from the only pieces of
evidence that prove the existence of the caño and/or depict the boundary as
following its general course. Indeed, there are multiple such items, including
maps, satellite images and more recent, on -the-ground photographs. Below,
816
CRM, Annex 68, Note by the Acting Director of the National Geographic Institute of Costa
817a (18 Jan. 2011).
CRM, Annex 68, Note by the Acting Director of the National Geographic Institute of Costa
Rica (18 Jan. 2011).
818CRM, Annex 68, Note by the Acting Director of the Natio nal Geographic Institute of Costa
Rica (18 Jan. 2011).
323 Nicaragua offers a chronological sampling of these sources which, individually
and cumulatively, thoroughly refute Costa Rica’s case. 819
6.65. The first in the series is a map dated 1931 that was prepared by the
United States Army Corps of Engineers following an extended, three -year survey
of the area conducted between 1929 and 1931. 820The reason for the survey was
that the San Juan River had once again become the centre of international
attention, particularly in North America, as a site for a major inter -oceanic canal.
The geography and location of the border were therefor e of obvious importance
for determining the canal’s potential route. An excerpt appears below.
819
Still other examples were cited by Nicaragua at the hearing on provisional measures in January
2011 and/or attached to its responses to questions from the Court. Copies of those maps are
included again as annexes to this Counter-Memorial. (NCM, Vol. IV, Annex 122 (A) (B) (C) (D)
(E) (F) (G).
820 U.S. Engineers Office, Nicaragua Canal Survey, 1929-1931 (NCM, Vol.IV, Annex 123.).
324Nicaragua offers a chronological sampling of these sources which, individually
and cumulatively, thoroughly refute Costa Rica’s case. 819
6.65. The first in the series is a map dated 1931 that was prepared by the
United States Army Corps of Engineers following an extended, three -year survey
of the area conducted between 1929 and 1931. 820The reason for the survey was
that the San Juan River had once again become the centre of international
attention, particularly in North America, as a site for a major inter -oceanic canal.
The geography and location of the border were therefor e of obvious importance
for determining the canal’s potential route. An excerpt appears below.
819
Still other examples were cited by Nicaragua at the hearing on provisional measures in January
2011 and/or attached to its responses to questions from the Court. Copies of those maps are
included again as annexes to this Counter-Memorial. (NCM, Vol. IV, Annex 122 (A) (B) (C) (D)
(E) (F) (G).
820U.S. Engineers Office, Nicaragua Canal Survey, 1929-1931 (NCM, Vol.IV, Annex 123.). 6.67. Costa Rica’s Memorial then observes that this is a “general” map
822
that shows the “canal route”, again as if this detracts from the map’s value. It
does not. To the contrary, it enhances it. Although a “general” map, it is
specifically focused on the location of the San Juan River, giving close attention
to the territory surrounding the proposed canal route. In this respect, the details of
the border between Nicaragua and Costa Rica on the Caribbean coast are striking.
The boundary cuts westward acr oss the northern portions of Harbour Head from
Harbour Head Lagoon to the main flow of the San Juan River. Just as in Costa
Rica’s own 1971 map, the territory now is dispute is shown as being Nicaraguan.
6.68. The Memorial also contends that although the1931 map gets the
boundary wrong, it nonetheless “accurately depicts the geographic configuration
of the area”, in that it does not indicate the existence of a caño in the area. 823
Although that may be technically true, the map is at a small scale and plainly no t
drawn with the degree of detail sufficient to depict the caño. Nevertheless, the
fact remains: the international border is drawn in the area of the caño connecting
the lagoon to the river proper. This is inexplicable but for the presence of an
alternate watercourse there. The U.S. Army Corps of Engineers can safely be
presumed to have been well aware of the details of the decision their colleague
General Alexander rendered just a generation earlier, especially given its evident
relevance to the issue before them.
822
823RM, 4.31.
CRM, para. 4.31.
326 6.67. Costa Rica’s Memorial then observes that this is a “general” map
822
that shows the “canal route”, again as if this detracts from the map’s value. It
does not. To the contrary, it enhances it. Although a “general” map, it is
specifically focused on the location of the San Juan River, giving close attention
to the territory surrounding the proposed canal route. In this respect, the details of
the border between Nicaragua and Costa Rica on the Caribbean coast are striking.
The boundary cuts westward acr oss the northern portions of Harbour Head from
Harbour Head Lagoon to the main flow of the San Juan River. Just as in Costa
Rica’s own 1971 map, the territory now is dispute is shown as being Nicaraguan.
6.68. The Memorial also contends that although the1931 map gets the
boundary wrong, it nonetheless “accurately depicts the geographic configuration
of the area”, in that it does not indicate the existence of a caño in the area. 823
Although that may be technically true, the map is at a small scale and plainly no t
drawn with the degree of detail sufficient to depict the caño. Nevertheless, the
fact remains: the international border is drawn in the area of the caño connecting
the lagoon to the river proper. This is inexplicable but for the presence of an
alternate watercourse there. The U.S. Army Corps of Engineers can safely be
presumed to have been well aware of the details of the decision their colleague
General Alexander rendered just a generation earlier, especially given its evident
relevance to the issue before them.
822
823CRM, 4.31.
CRM, para. 4.31. Figure 6.7.7824824
Additional cañoños
CañCaño
Figure 6.7 1961 Aerial Imagege
6.71.71. Another interesting feature of this 1961 image is that it shows thatat
the caño at issue in this case is not the only one thatat cuts through the Harbourour
Head swamp and connects the lagoon to the river proper. Indeed, there appear toto
be several such additional caños, the most conspicuous of which are also labelleded
825825
in the picture above.e.
82424
1961 Aerial Image (NCM, VoVo l. IV, Annex 132.)..)See also CR 2011/3, p. 22, para. 1616
(Crawford).).
825See also Kondolf, Section 2.5, discussing “Distributaries of the Río San Juan” (NCM, Vol. I,I,
Appendix 1).).
328 824
Figure 6.7
Additional caños
Additional caño
Caño
Figure 6.7 1961 Aerial Image
6.71. Another interesting feature of this 1961 image is that it shows that
the caño at issue in this case is not the only one that cuts through the Harbour
Head swamp and connects the lagoon to the river proper. Indeed, there appear to
be several such additional caños, the most conspicuous of which are also labelled
in the picture above. 825
8241961 Aerial Image (NCM, Vo l. IV, Annex 132.). See also CR 2011/3, p. 22, para. 16
(Crawford).
825See also Kondolf, Section 2.5, discussing “Distributaries of the Río San Juan” (NCM, Vol. I,
Appendix 1). 827
Figure 6.8
Cañosos
Figure 6.8 January 2011 Satellite Image
6.73. A second aerial photograph from 1961 shows the same path
naturally cleared through the vegetation as the channel flows first westward from
the lagoon and thence southward parallel to the main flow of the San Juan. The
increased contrast in this image highlights the white and grey lines tracing the
channel’s course. It also plainly depicts the additional channels to the north.
827 Thorne, p. I-29.
330 827
Figure 6.8
Cañosss
Figure 6.8 January 2011 Satellite Image
6.73. A second aerial photograph from 1961 shows the same path
naturally cleared through the vegetation as the channel flows first westward from
the lagoon and thence southward parallel to the main flow of the San Juan. The
increased contrast in this image highlights the white and grey lines tracing the
channel’s course. It also plainly depicts the additional channels to the north.
827
Thorne, p. I-29. through the Harbour Head swamp south of where Costa Rica now claims it to be.
As with the 1931 map prepared by the U.S. Army Corps of Engineers, these maps
make little sense unless they are premised on the assumption that there is a
watercourse – a “first channel met” – connecting the area around Harbour Head
Lagoon to the main flow of the San Juan – the “river proper”. And as is also true
of the Army Corps of Engineers map, the fact that they were prepared by
independent third parties only adds to their credibility, it does not diminish it.
6.75. In the 1970s and early 1980s, the United States Central Intelligence
Agency published a series of maps depicting the international boundary in a
manner consistent with Nicaragua’s position. In Nicaragua’s view, these maps
are particularly noteworthy because of the CIA’s well-known interest in the area,
a fact about which the Court needs no reminding. 830
6.76. The first CIA map in the series dates to 1970 and appears below.
The boundary is plainly shown as tracking the general direction and location of
the caño depicted in Costa Rica’s 1949 map and evident from the 1961 satellite
imagery. The tip of Harbour Head north of the line connecting the lagoon to the
first channel met is unmistakably depicted as Nicaraguan.
830
See Military and Paramilitary Activities In and Around Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, I.C.J. Reports 1986.
332through the Harbour Head swamp south of where Costa Rica now claims it to be.
As with the 1931 map prepared by the U.S. Army Corps of Engineers, these maps
make little sense unless they are premised on the assumption that there is a
watercourse – a “first channel met” – connecting the area around Harbour Head
Lagoon to the main flow of the San Juan – the “river proper”. And as is also true
of the Army Corps of Engineers map, the fact that they were prepared by
independent third parties only adds to their credibility, it does not diminish it.
6.75. In the 1970s and early 1980s, the United States Central Intelligence
Agency published a series of maps depicting the international boundary in a
manner consistent with Nicaragua’s position. In Nicaragua’s view, these maps
are particularly noteworthy because of the CIA’s well-known interest in the area,
a fact about which the Court needs no reminding. 830
6.76. The first CIA map in the series dates to 1970 and appears below.
The boundary is plainly shown as tracking the general direction and location of
the caño depicted in Costa Rica’s 1949 map and evident from the 1961 satellite
imagery. The tip of Harbour Head north of the line connecting the lagoon to the
first channel met is unmistakably depicted as Nicaraguan.
830
See Military and Paramilitary Activities In and Around Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, I.C.J. Reports 1986. 832
Figure 6.11
Figure 6.11 1970 U.S. CIA Map
833
Figure 6.12
Figure 6.12 1979 U.S. CIA Map
832
Costa Rica, U.S. Central Intelligence Agency, 1970 (2), G 4860 1970 U52. (NCM, Vol. IV,
Annex 125).
833Nicaragua, U.S. Central Intelligence Agency (1979). (NCM, Vol. IV, Annex 128).
334 832
Figure 6.11
Figure 6.11 1970 U.S. CIA Map
833
Figure 6.12
Figure 6.12 1979 U.S. CIA Map
832
Costa Rica, U.S. Central Intelligence Agency, 1970 (2), G 4860 1970 U52. (NCM, Vol. IV,
Annex 125).
833Nicaragua, U.S. Central Intelligence Agency (1979). (NCM, Vol. IV, Annex 128). 835
Figure 6.14
Figure 6.14 1978 Texaco Map
6.79. The reality on the ground – the continued existence of the caño
depicted in Costa Rica’s own 1949 map – is further evidenced by satellite
photographs taken in the period after all the above described maps were created.
6.80. The first such image is from 1997 and was first produced by Costa
Rica during the provisional measures hearing. 836 Once more, evidence Costa Rica
earlier intended to support its case actually contradicts it. Despite the difficulties
posed by the thick tree canopy, the channel’s path is nonetheless visible as a thin
dark line through the forest in the same location and direction as it appears in
Costa Rica’s 1949 map and the 1961 aerial images.
835Texaco (1978). (NCM, Vol. IV, Annex 127).
836See CR 2011/3, p. 22, para. 6 (Crawford).
336 835
Figure 6.14
Figure 6.14 1978 Texaco Map
6.79. The reality on the ground – the continued existence of the caño
depicted in Costa Rica’s own 1949 map – is further evidenced by satellite
photographs taken in the period after all the above described maps were created.
6.80. The first such image is from 1997 and was first produced by Costa
836
Rica during the provisional measures hearing. Once more, evidence Costa Rica
earlier intended to support its case actually contradicts it. Despite the difficulties
posed by the thick tree canopy, the channel’s path is nonetheless visible as a thin
dark line through the forest in the same location and direction as it appears in
Costa Rica’s 1949 map and the 1961 aerial images.
835Texaco (1978). (NCM, Vol. IV, Annex 127).
836See CR 2011/3, p. 22, para. 6 (Crawford). proper in the south by an obvious watercourse that coincides with the present-day
location of the caño. T he northern end of this pond-like formation is equally
clearly connected to the Harbour Head Lagoon by a perceptible stream.
Figure 6.16 839
Caño
Figure 6.16 2007 Satellite Image
6.82. Among the other interesting elements of these 1997 and 2007
images is the fact that both continue to show the existence of additional caños
north of the one in dispute. Even if Costa Rica were somehow able to overcome
the obvious, and disprove the existence of this particular caño, the fact would
therefore remain that there are other caños running east toward Harbour Head that
8392007 Satellite Photograph (NCM, Vol. IV, Annex 135).
338would constitute the “first channel met” and thus mark the location of the
international boundary between Nicaragua and Costa Rica. No matter how
viewed, then, a single conclusion emerges: the area around Harbour Head, is
Nicaragua’s, not Costa Rica’s.
6.83. The Memorial presents two other satellite images that are intended
to buttress Costa Rica’s case that the caño did not previously exist. 840 The images
were taken in 2009 and 2010 – both less than a year before Nicaragua’s cleaning
activities.841But this evidence misses the point. Flow in the San Juan, and thus
also in the caño, is highly variable. The fact that the caño may not be immediately
obvious from outer s pace at one moment in time does not mean that it is not
present. Indeed, as shown just above in the 2007 false colour image, there are
times when the flow is substantial and obvious, and the caño can be identified
even from outer space. Moreover, the sil tation and reduction of flow in both the
San Juan and the caño over time is the principal reason for the wider dredging
program Nicaragua is undertaking on the lower San Juan, as well as the cleaning
of the caño.
6.84. Remote sensing data like satellite imagery will always be no more
than second best to data collected at ground level. This evidence, especially given
its recent provenance, provides the final confirmation of the reality Costa Rica
840The only satellite images discussed in Costa Rica’s Memorial are fou nd on p. 125 and 141 (as
well as an image of the channel after Nicaragua’s clearing activities on p. 124).
841
Ibid.
339 would prefer to avoid: t here is a caño, it has been there for some time, and it
continues to be there now.
6.85. Recent photographs show that the caño existed before Nicaragua’s
2010 clearing activities. Many of these photographs Nicaragua previously offered
842
in evidence at the time o f the provisional measures hearings. Costa Rica had
ample time and opportunity to respond to them. Yet, what does the Memorial say
about these photographs? Nothing. It maintains a complete, and telling, silence.
The same is true of the video of the c año Nicaragua introduced into evidence
during the January 2011 hearings. 843
6.86. The photos below were taken prior to Nicaragua’s cleaning of the
caño. In particular, they were shot on 7 and 8 September 2009, during the initial
inspection of the channel to determine if MARENA would approve the request for
cleaning operations and establish the environmental safeguards required during
any approved activities. 844
6.87. The first photographs, which were taken at the starting point of the
journey at the Harbour Head Lagoon, unmistakably demonstrate the existence a
natural channel. The images show its wide entrance, clearing a path through the
842
See CR 2011/4, p. 10, para. 9 (McCaffrey).
843See CR 2011/4, p. 11, para. 10 (McCaffrey).
844Vivas Declaration, p. 1 (NCM, Vol.III, Annex 90) ; see also Complete Nicaraguan White Book,
San Juan de Nicaragua River, The Truths That Costa Rica Hides, 26 November 2010, p. 63 (NCM,
Vol. II, Annex 26).
340would prefer to avoid: t here is a caño, it has been there for some time, and it
continues to be there now.
6.85. Recent photographs show that the caño existed before Nicaragua’s
2010 clearing activities. Many of these photographs Nicaragua previously offered
842
in evidence at the time o f the provisional measures hearings. Costa Rica had
ample time and opportunity to respond to them. Yet, what does the Memorial say
about these photographs? Nothing. It maintains a complete, and telling, silence.
The same is true of the video of the c año Nicaragua introduced into evidence
during the January 2011 hearings. 843
6.86. The photos below were taken prior to Nicaragua’s cleaning of the
caño. In particular, they were shot on 7 and 8 September 2009, during the initial
inspection of the channel to determine if MARENA would approve the request for
cleaning operations and establish the environmental safeguards required during
any approved activities. 844
6.87. The first photographs, which were taken at the starting point of the
journey at the Harbour Head Lagoon, unmistakably demonstrate the existence a
natural channel. The images show its wide entrance, clearing a path through the
842
See CR 2011/4, p. 10, para. 9 (McCaffrey).
843See CR 2011/4, p. 11, para. 10 (McCaffrey).
844Vivas Declaration, p. 1 (NCM, Vol.III, Annex 90) ; see also Complete Nicaraguan White Book,
San Juan de Nicaragua River, The Truths That Costa Rica Hides, 26 November 2010, p. 63 (NCM,
Vol. II, Annex 26). 6.88. Elsa María Vivas Soto, the Environmental Management specialist
at MARENA who conducted the environmental evaluation of the channel, relates
her observations during this pre-cleaning visit in her witness statement:
“While we were traveling through the caño , the fluidity of the
water could be seen, which allowed small vessels such as the boat
that we were in to navigate up to a certain point. The caño had a
width of some five meters, surrounded by a riparian, flooded
847
forest.”
6.89. The fallen trees from the forest, combined with years of built -up
sedimentation, eventually made navigation difficult, however. The photograph
below shows the fallen and overhanging trees blocking the boats’ passage, as well
as the increased levels of sedimentation along the river’s banks and in its waters.
847Vivas Declaration, para. 9 (NCM, Vol. III, Annex 90).
342 6.88. Elsa María Vivas Soto, the Environmental Management specialist
at MARENA who conducted the environmental evaluation of the channel, relates
her observations during this pre-cleaning visit in her witness statement:
“While we were traveling through the caño , the fluidity of the
water could be seen, which allowed small vessels such as the boat
that we were in to navigate up to a certain point. The caño had a
width of some five meters, surrounded by a riparian, flooded
847
forest.”
6.89. The fallen trees from the forest, combined with years of built -up
sedimentation, eventually made navigation difficult, however. The photograph
below shows the fallen and overhanging trees blocking the boats’ passage, as well
as the increased levels of sedimentation along the river’s banks and in its waters.
847Vivas Declaration, para. 9 (NCM, Vol. III, Annex 90). 6.91. The need to clear the channel of the accumulated debris and
sediment to restore it to its prior state was evident:
“The need to remove the sediment to restore the flow volume of
the caño was visible, so that it could again flow from the Lagoon to
its natural mouth in the San Juan River. The need to remove the
vegetation that obstructed the caño was also visible, to improve its
navigability as part of the sustainable development of the
region.”850
6.92. In light of these findings, the clearing operation began just over a
month later.
3. Costa Rica’s Experts Do Not Assist Its Case
6.93. To rebut the evident force of the evidence presented above, Costa
Rica relies primarily on reports prepared by external consultants. The first is the
satellite imagery analysis prepared by UNITAR/UNOSAT. The second is the
Thorne Report.
6.94. Costa Rica offers the UNITAR/UNOSAT Report for the ostensible
conclusion that “there were no signatures within the satellite imagery indicating
the existence of an ephemeral stream to explain the appearance of this
851
channel”. Many of the reasons the UNITAR/UNOSAT Report is not reliable and
does not support the propositions for which it has been offered have already been
addressed in Chapter 5 dealing with the issues of harm and the threat of harm to
850
851Vivas Declaration, para. 10 (NCM, Vol. III, Annex 90).
CRM, Annex 148, p. 140.
344 6.91. The need to clear the channel of the accumulated debris and
sediment to restore it to its prior state was evident:
“The need to remove the sediment to restore the flow volume of
the caño was visible, so that it could again flow from the Lagoon to
its natural mouth in the San Juan River. The need to remove the
vegetation that obstructed the caño was also visible, to improve its
navigability as part of the sustainable development of the
region.”850
6.92. In light of these findings, the clearing operation began just over a
month later.
3. Costa Rica’s Experts Do Not Assist Its Case
6.93. To rebut the evident force of the evidence presented above, Costa
Rica relies primarily on reports prepared by external consultants. The first is the
satellite imagery analysis prepared by UNITAR/UNOSAT. The second is the
Thorne Report.
6.94. Costa Rica offers the UNITAR/UNOSAT Report for the ostensible
conclusion that “there were no signatures within the satellite imagery indicating
the existence of an ephemeral stream to explain the appearance of this
851
channel”. Many of the reasons the UNITAR/UNOSAT Report is not reliable and
does not support the propositions for which it has been offered have already been
addressed in Chapter 5 dealing with the issues of harm and the threat of harm to
850
851Vivas Declaration, para. 10 (NCM, Vol. III, Annex 90).
CRM, Annex 148, p. 140. this flood event was that the water in the caño over -spilled its banks. It distinctly
did not increase in size as a result of erosion.
6.97. This simple truth is clear by compar ing the two photographs on
pages I-47 and I -48 of the Thorne Report, where it can be seen that the caño
returned to its original size when the flood waters receded. It can also be seen in
the photographs Costa Rica presented at the provisional measures he aring, in
which the original, unwidened banks of the caño remain very much visible just
beneath the flood waters (as does the source of the flood: rain, drops of which can
857
be seen on the window of the airplane from which the pictures were taken).
6.98. The eagerness of the authors of the report to reach conclusions
helpful to Costa Rica is also shown by their wholly errant attempt to assess the
velocity of the river flow based only on satellite imagery. The report warns that
“the high velocity of water flowing in from the San Juan River” will facilitate a
“high rate of erosion” in the caño. 858Again, this is plainly false. 859 In fact, the
flow of the San Juan is exceedingly slow, a function of what Dr Thorne himself
refers to as the “low -gradient and limited strea m power” of the river. 860 Water in
the lower San Juan moves at a mere 0.569 meters per second, or approximately
857
Report of the OAS Secretary General Pursuant to Resolution CP/RES. 979 (1780/10) ,
OEA/Ser.F/II.26 (7 Dec. 2010) (CRM, Vol. IV Annex 146).
858CRM, Annex 148, p. 140.
859See Kondolf, Section 3.5 (“[S]atellite images alone cannot indicate the velocity of flowing
water. Eith er the UNITAR (2011a) report authors are speculating about the velocity of water
‘flowing in from the San Juan River’, or the statement is based on field observation by a third
party and incorporated without attribution or acknowledgment in the methods sec tion.”) (NCM,
860.I, Appendix 1).
Thorne, p. I-80.
346this flood event was that the water in the caño over -spilled its banks. It distinctly
did not increase in size as a result of erosion.
6.97. This simple truth is clear by compar ing the two photographs on
pages I-47 and I -48 of the Thorne Report, where it can be seen that the caño
returned to its original size when the flood waters receded. It can also be seen in
the photographs Costa Rica presented at the provisional measures he aring, in
which the original, unwidened banks of the caño remain very much visible just
beneath the flood waters (as does the source of the flood: rain, drops of which can
857
be seen on the window of the airplane from which the pictures were taken).
6.98. The eagerness of the authors of the report to reach conclusions
helpful to Costa Rica is also shown by their wholly errant attempt to assess the
velocity of the river flow based only on satellite imagery. The report warns that
“the high velocity of water flowing in from the San Juan River” will facilitate a
“high rate of erosion” in the caño. 858 Again, this is plainly false. 859 In fact, the
flow of the San Juan is exceedingly slow, a function of what Dr Thorne himself
refers to as the “low -gradient and limited strea m power” of the river. 860Water in
the lower San Juan moves at a mere 0.569 meters per second, or approximately
857
Report of the OAS Secretary General Pursuant to Resolution CP/RES. 979 (1780/10) ,
OEA/Ser.F/II.26 (7 Dec. 2010) (CRM, Vol. IV Annex 146).
858CRM, Annex 148, p. 140.
859See Kondolf, Section 3.5 (“[S]atellite images alone cannot indicate the velocity of flowing
water. Eith er the UNITAR (2011a) report authors are speculating about the velocity of water
‘flowing in from the San Juan River’, or the statement is based on field observation by a third
party and incorporated without attribution or acknowledgment in the methods sec tion.”) (NCM,
860.I, Appendix 1).
Thorne, p. I-80. 1961, a significant gap of over 60 years. As a result, the report lacks a thorough
and complete review of the evidence, leading to inherently questionable results.
6.101. Second, even the limited evidence he reviewed indicates that
Professor Thorne’s conclusion is anything but firm. While he claims that there
was previously no watercourse exactly where the caño currently flows, he admits
that there was both a watercourse flowing in the direction of the river from the
southwest corner of the Lagoon 865and a channel in the same area linking it to the
right (east) bank of the river proper. 866 In effect then, his “firm conclusion” is
limited to the contention that these admitted flows of water from either side did
not meet.
6.102. Yet, even this limited contention is disproven by Costa Rica’s own
maps and by Professor Kondolf’s analysis. As explained in Professor Kondolf’s
report, it is implausible that the watercourse found at the southwest corner of the
lagoon would “grow just so far and then stop.” 867Dr Thorne’s report does not
explain how this “inlet” would have avoided gradually filling in with sediment
over the course of many decades without carrying flowing water to keep itself
open. 868 Indeed, Thorne’s conclusions are “inconsistent with the well-documented
869
behavior of deltas.” Dr Thorne also argues that if the caño had connected the
river to the lagoon it would have led to changes in the formation of the lagoon’s
865See Thorne, pp. I-7, I-18, I-20, and I-22.
866See Thorne, pp. I-7 and I-19.
867
868Kondolf, Section 2.4 (NCM, Vol.I, Appendix 1).
869Ibid.
Ibid.
3481961, a significant gap of over 60 years. As a result, the report lacks a thorough
and complete review of the evidence, leading to inherently questionable results.
6.101. Second, even the limited evidence he reviewed indicates that
Professor Thorne’s conclusion is anything but firm. While he claims that there
was previously no watercourse exactly where the caño currently flows, he admits
that there was both a watercourse flowing in the direction of the river from the
southwest corner of the Lagoon 865and a channel in the same area linking it to the
right (east) bank of the river proper. 866 In effect then, his “firm conclusion” is
limited to the contention that these admitted flows of water from either side did
not meet.
6.102. Yet, even this limited contention is disproven by Costa Rica’s own
maps and by Professor Kondolf’s analysis. As explained in Professor Kondolf’s
report, it is implausible that the watercourse found at the southwest corner of the
lagoon would “grow just so far and then stop.” 867 Dr Thorne’s report does not
explain how this “inlet” would have avoided gradually filling in with sediment
over the course of many decades without carrying flowing water to keep itself
open. 868 Indeed, Thorne’s conclusions are “inconsistent with the well-documented
869
behavior of deltas.” Dr Thorne also argues that if the caño had connected the
river to the lagoon it would have led to changes in the formation of the lagoon’s
865See Thorne, pp. I-7, I-18, I-20, and I-22.
866See Thorne, pp. I-7 and I-19.
867
868Kondolf, Section 2.4 (NCM, Vol.I, Appendix 1).
869Ibid.
Ibid. survey attempted to estimate the ages of tree stumps allegedly found within the
channel of the caño. Borrowing a conclusion from the Costa Rican survey,
Thorne asserts that “it is unlikely that either of the [tree species identified] took
root in the bed of a pre -existing stream because the buoyancy of their seeds
875
greatly decreases the chances of a successful sub -aqueous rooting.” Firstly,
there is no evidence that these trees or any trees were alleged or supposed to have
taken “root in the bed of a pre-existing stream”. What is correct is that the type of
trees indicated are trees that naturally grow in the margins (not the bed) or near
water courses such as the caño. Secondly, the scientific evidence shows that the
proximity to the caño appears to be the ideal location for these types of trees to
grow. It is well established that these tree species flourish in wet areas, including
876
seasonal and perennial wetlands, and often form stands adjacent to mangroves.
The seasonal nature of the caño’s water flow provides the tree seeds the best
opportunity to grow, as they implant in the channel during the low-flow of the dry
877
season then benefit from the increased flow during the wet winter.
6.105. Despite the clear limitations of his review, Professor Thorne
declares that this evidence provides “a sound basis on which to draw firm
878
conclusions.” One of these firm conclusions is the start date for Nicaragua’s
875Thorne, p. I-52.
876See Kondolf, Sections 2.8 & 7 (NCM, Vol.I, Appendix 1).
877Ibid. Professor Kondolf also notes several fundamental flaws in th e technical methods used to
estimate the tree ages. In fact, the appropriate growth rate calculus would “halve the age estimates
for the largest trees to about 125 years.” See Kondolf, Sections 2.8, 6.1-6.4, and 7 (NCM, Vol.I,
878endix 1).
Thorne, p. I-58.
350survey attempted to estimate the ages of tree stumps allegedly found within the
channel of the caño. Borrowing a conclusion from the Costa Rican survey,
Thorne asserts that “it is unlikely that either of the [tree species identified] took
root in the bed of a pre -existing stream because the buoyancy of their seeds
875
greatly decreases the chances of a successful sub -aqueous rooting.” Firstly,
there is no evidence that these trees or any trees were alleged or supposed to have
taken “root in the bed of a pre-existing stream”. What is correct is that the type of
trees indicated are trees that naturally grow in the margins (not the bed) or near
water courses such as the caño. Secondly, the scientific evidence shows that the
proximity to the caño appears to be the ideal location for these types of trees to
grow. It is well established that these tree species flourish in wet areas, including
876
seasonal and perennial wetlands, and often form stands adjacent to mangroves.
The seasonal nature of the caño’s water flow provides the tree seeds the best
opportunity to grow, as they implant in the channel during the low-flow of the dry
877
season then benefit from the increased flow during the wet winter.
6.105. Despite the clear limitations of his review, Professor Thorne
declares that this evidence provides “a sound basis on which to draw firm
878
conclusions.” One of these firm conclusions is the start date for Nicaragua’s
875Thorne, p. I-52.
876See Kondolf, Sections 2.8 & 7 (NCM, Vol.I, Appendix 1).
877Ibid. Professor Kondolf also notes several fundamental flaws in th e technical methods used to
estimate the tree ages. In fact, the appropriate growth rate calculus would “halve the age estimates
for the largest trees to about 125 years.” See Kondolf, Sections 2.8, 6.1-6.4, and 7 (NCM, Vol.I,
878endix 1).
Thorne, p. I-58. border as it approaches the sea, and by the lar ge number of maps that directly
contradict Costa Rica’s position.
6.108. Costa Rica’s argument is also refuted by the fact that Costa Rica
has never exercised sovereignty in the area in dispute whilst Nicaragua has
exercised unchallenged sovereignty over the disputed area, including the caño,
882
which is well documented for at least the past 30 years. During these decades
of regular and repeated sovereign activity, Costa Rica never once questioned
Nicaragua’s actions. It was only when the present dispute erupted late in 2010
that it began to do so. The artificiality of Costa Rica’s more recent complaints is
amply demonstrated by the fact that it has never exercised authority in the area in
dispute and that throughout this last well documented 30- year period it has been
notably absent from the disputed territory. The “presence” Costa Rica claims in
its Memorial is, at best, a paper presence only, and a conspicuously limited one at
that.
6.109. This paper presence may be exemplified by the fact that Costa Rica
claims the area in dispute as a Costa Rican Ramsar site. This site has never – until
this case began – been verified or inspected on the ground. In fact the coordinates
of the site given by Costa Rica to Ramsar indicate that the starting point is more
882There are more antique records that could be brought forth. It must be recalled that the only
population in the area at the mouth of the Sa n Juan River was Nicaraguan since colonial times.
The town of San Juan (later Greytown and now relocated nearby and again called San Juan) was
until the present day the only inhabited area in a radius of more than 30 kilometers.
352border as it approaches the sea, and by the lar ge number of maps that directly
contradict Costa Rica’s position.
6.108. Costa Rica’s argument is also refuted by the fact that Costa Rica
has never exercised sovereignty in the area in dispute whilst Nicaragua has
exercised unchallenged sovereignty over the disputed area, including the caño,
882
which is well documented for at least the past 30 years. During these decades
of regular and repeated sovereign activity, Costa Rica never once questioned
Nicaragua’s actions. It was only when the present dispute erupted late in 2010
that it began to do so. The artificiality of Costa Rica’s more recent complaints is
amply demonstrated by the fact that it has never exercised authority in the area in
dispute and that throughout this last well documented 30- year period it has been
notably absent from the disputed territory. The “presence” Costa Rica claims in
its Memorial is, at best, a paper presence only, and a conspicuously limited one at
that.
6.109. This paper presence may be exemplified by the fact that Costa Rica
claims the area in dispute as a Costa Rican Ramsar site. This site has never – until
this case began – been verified or inspected on the ground. In fact the coordinates
of the site given by Costa Rica to Ramsar indicate that the starting point is more
882There are more antique records that could be brought forth. It must be recalled that the only
population in the area at the mouth of the Sa n Juan River was Nicaraguan since colonial times.
The town of San Juan (later Greytown and now relocated nearby and again called San Juan) was
until the present day the only inhabited area in a radius of more than 30 kilometers. Gutiérrez Espinosa, similarly notes that “the Border Guard Troops had a base in
the swamps of the Harbor Head.” 885
6.113. The Army presence continued even after the end of the civil war as
the area around San Juan de Nicaragua “turn[ed] into a focal point of criminal
886
activity” because of its proximity to the river’s exit to the Caribbean Sea. In the
1990s and after, the Army’s mission thus turned to combating smuggling and
other forms of delinquency. 887
6.114. During all these periods, Nicaragua’s Navy too was acti ve in the
area, patrolling it in the exercise of its responsibility to protect the nation’s
borders. Naval patrols frequently “entered Harbor Head [Lagoon] through the
888
streams that connect it to the San Juan River.” They would particularly use the
channels connecting the lagoon with the river proper during the rainy season
(known locally as “winter”), when navigating these waterways became easier as
water levels rose. 889
6.115. Along with the Army and Navy, Nicaragua’s Police too were active
in the zone where they together with the military exercised their “duty of ensuring
885Affidavit of Juan Francisco Gutiérrez Espinoza (MILITARY), 15 December 2010. (NCM, Vol.
III, Annex 85). He explained that the structure was “burned together with the town in Greytown”
886ing the armed conflict in the 1980s .
Affidavit of Denis Membreño Rivas (MILITARY), 15 December 2010. (NCM, Vol. III, Annex
88).
887 Ibid.; see also Affidavit of Douglas Rafael Pichardo Ramírez (POLICE), 15 December
8880.Statement (NCM, Vol. III, Annex 83).
Affidavit of Juan Francisco Gutiérrez Espinoza (MILITARY), 15 December 2010. (NCM, Vol.
III, Annex 85). See also , Affidavit of Manuel Salvad or Mora Ortiz (MILITARY), 15 December
2010. (NCM, Vol. III, Annex 86), Affidavit of Norman Javier Juárez Blanco (MILITARY),
15 December 2010. (NCM, Vol. III, Annex 87).
889Ibid.
354Gutiérrez Espinosa, similarly notes that “the Border Guard Troops had a base in
the swamps of the Harbor Head.” 885
6.113. The Army presence continued even after the end of the civil war as
the area around San Juan de Nicaragua “turn[ed] into a focal point of criminal
886
activity” because of its proximity to the river’s exit to the Caribbean Sea. In the
1990s and after, the Army’s mission thus turned to combating smuggling and
other forms of delinquency. 887
6.114. During all these periods, Nicaragua’s Navy too was acti ve in the
area, patrolling it in the exercise of its responsibility to protect the nation’s
borders. Naval patrols frequently “entered Harbor Head [Lagoon] through the
888
streams that connect it to the San Juan River.” They would particularly use the
channels connecting the lagoon with the river proper during the rainy season
(known locally as “winter”), when navigating these waterways became easier as
water levels rose. 889
6.115. Along with the Army and Navy, Nicaragua’s Police too were active
in the zone where they together with the military exercised their “duty of ensuring
885Affidavit of Juan Francisco Gutiérrez Espinoza (MILITARY), 15 December 2010. (NCM, Vol.
III, Annex 85). He explained that the structure was “burned together with the town in Greytown”
886ing the armed conflict in the 1980s .
Affidavit of Denis Membreño Rivas (MILITARY), 15 December 2010. (NCM, Vol. III, Annex
88).
887Ibid.; see also Affidavit of Douglas Rafael Pichardo Ramírez (POLICE), 15 December
8880.Statement (NCM, Vol. III, Annex 83).
Affidavit of Juan Francisco Gutiérrez Espinoza (MILITARY), 15 December 2010. (NCM, Vol.
III, Annex 85). See also , Affidavit of Manuel Salvad or Mora Ortiz (MILITARY), 15 December
2010. (NCM, Vol. III, Annex 86), Affidavit of Norman Javier Juárez Blanco (MILITARY),
15 December 2010. (NCM, Vol. III, Annex 87).
889Ibid. Narcotics Directorate of the Special Forces Detachment, he observed that little
896
had changed. Indeed, if anything the patrols were more frequent and intense.
6.117. In addition to regular patrols, Nicaraguan Police also carried out
special operations “overseeing the commonly utilized routes for narcotics
897
trafficking, as it was the case in Harbour Head.” The Second Chief of the
Narcotics Directorate explains that during such operations “we fluidly navigated
from the river’s Delta to its mouth using 115 horsepower motor boats. During the
winter time [i.e., the rainy season], the Harbour Head’s canals became navigable,
898
but not all of them, there were some places in which we pushed the boats.”
Despite the at -times difficult navigation “these canals were included in [their]
899
patrol activities.”
6.118. Another officer similarly attests, “During the winter we used to
enter Harbour Head through the streams that connect it to the San Juan river, even
during summer [i.e., the dry season] the Harbour Head Lagoon was accessed
through its streams, even though it was more complicated and more than once we
had to push the boats in the sedimentary sand bank due to the river’s low flow.” 900
6.119. These police activities, and Nicaragua’s presence more generally,
are evidenced in a June 2008 report from the Second Chief of the San Juan River
Section of the National Police, Mr Enrique Arteaga Núñez, to the Chief
896Ibid.
897Ibid.
898Ibid.
899
900Ibid.
Affidavit of Juan Francisco Gutiérrez Espinoza (MILITARY), 15 December 2010. (NCM, Vol.
III, Annex 85).
356Narcotics Directorate of the Special Forces Detachment, he observed that little
896
had changed. Indeed, if anything the patrols were more frequent and intense.
6.117. In addition to regular patrols, Nicaraguan Police also carried out
special operations “overseeing the commonly utilized routes for narcotics
897
trafficking, as it was the case in Harbour Head.” The Second Chief of the
Narcotics Directorate explains that during such operations “we fluidly navigated
from the river’s Delta to its mouth using 115 horsepower motor boats. During the
winter time [i.e., the rainy season], the Harbour Head’s canals became navigable,
898
but not all of them, there were some places in which we pushed the boats.”
Despite the at -times difficult navigation “these canals were included in [their]
899
patrol activities.”
6.118. Another officer similarly attests, “During the winter we used to
enter Harbour Head through the streams that connect it to the San Juan river, even
during summer [i.e., the dry season] the Harbour Head Lagoon was accessed
through its streams, even though it was more complicated and more than once we
had to push the boats in the sedimentary sand bank due to the river’s low flow.” 900
6.119. These police activities, and Nicaragua’s presence more generally,
are evidenced in a June 2008 report from the Second Chief of the San Juan River
Section of the National Police, Mr Enrique Arteaga Núñez, to the Chief
896Ibid.
897Ibid.
898Ibid.
899
900Ibid.
Affidavit of Juan Francisco Gutiérrez Espinoza (MILITARY), 15 December 2010. (NCM, Vol.
III, Annex 85). Delta, to the mouth of the river and to the place known as Harbour
Head Lagoon, entering through a caño that connects to the same and to
the place where there is a small garrison of the Nicaraguan Army in a
house on stilts.”904
2. Costa Rica’s Acquiescence
6.122. During these more than three decades of open and obvious
Nicaraguan sovereign activity in the disputed area, Costa Rica never once raised
its voice to challenge Nicaragua’s activities. Costa Rican security forces along
the border were well aware of this activity, as they were in constant
communication with their Nicaraguan counterparts. Costa Rica’s failure to object
is therefore conspicuous and, in Nicaragua’s view compelling.
6.123. In 2008, for example, a delegation from the Costa Rican Police met
with their Nicaraguan counterparts headquartered on the rive r where they
exchanged information regarding their respective operations, specifically
including the presence and activities of the Nicaraguan police in the Harbour
905
Head zone. Neither this discussion nor any similar, earlier exchanges resulted in
any protest from the Costa Rican side. 906
6.124. Unable to produce any record of even a single protest of
Nicaragua’s continuous activities in the area, Costa Rica’s Memorial adopts a
different approach and claims that Nicaragua’s evidence does not support the
propositions for which it is offered. Costa Rica claims in the first instance that the
904
905 See NCM Vol. III, Annex 38
Affidavit of Jose Magdiel Perez Solis (POLICE), 15 December 2010. (NCM, Vol. III, Annex
906.
Ibid.
358 Delta, to the mouth of the river and to the place known as Harbour
Head Lagoon, entering through a caño that connects to the same and to
the place where there is a small garrison of the Nicaraguan Army in a
house on stilts.”904
2. Costa Rica’s Acquiescence
6.122. During these more than three decades of open and obvious
Nicaraguan sovereign activity in the disputed area, Costa Rica never once raised
its voice to challenge Nicaragua’s activities. Costa Rican security forces along
the border were well aware of this activity, as they were in constant
communication with their Nicaraguan counterparts. Costa Rica’s failure to object
is therefore conspicuous and, in Nicaragua’s view compelling.
6.123. In 2008, for example, a delegation from the Costa Rican Police met
with their Nicaraguan counterparts headquartered on the rive r where they
exchanged information regarding their respective operations, specifically
including the presence and activities of the Nicaraguan police in the Harbour
905
Head zone. Neither this discussion nor any similar, earlier exchanges resulted in
any protest from the Costa Rican side. 906
6.124. Unable to produce any record of even a single protest of
Nicaragua’s continuous activities in the area, Costa Rica’s Memorial adopts a
different approach and claims that Nicaragua’s evidence does not support the
propositions for which it is offered. Costa Rica claims in the first instance that the
904
905 See NCM Vol. III, Annex 38
Affidavit of Jose Magdiel Perez Solis (POLICE), 15 December 2010. (NCM, Vol. III, Annex
906.
Ibid. not identify any caño or channel by name. This remains true even now after it has
been placed under an international magnifying glass. Nevertheless, Nicaragua’s
witness statements, as well as the contemporaneous police reports from 2000 and
2008 cited above, are clear. The 2008 report, for example, states: “On our return,
we had the opportunity to enter through a caño that conducted us to a lagoon
known as Harbour Head. According to Captain González’s [the officer in charge
in the area] explanation, that caño and that lagoon as well as the swamp of the
same name are Nicaraguan”. 911 If this statement does not refer to the caño in
dispute, Nicaragua again invites Cost a Rica to identify whatever other channels
that connect the river proper to the lagoon it thinks are being referenced.
6.127. Costa Rica’s arguments about the alleged lack of specificity about
which caño was being navigated also miss the point. The critical point here is that
Nicaragua consistently and over a period of several decades, at least, exercised
sovereign authority in exactly the area Costa Rica now claims has always been
understood to be Costa Rican territory. This core point would be undisturbed
911
Work Report of Enrique Jardiel Arteaga Núñez, Second Chief of the National Police, Río San
Juan Delegation to Commissioner José Miguel Pérez Solis, Head of Police Division, Río San Juan
(20 June 2008) (NCM, Vol. III, Annex 58) .See also, e.g. , Affidavit of Juan Francisco Gutiérrez
Espinoza (MILITARY), 15 December 2010. (“during the winter we used to enter Harbour Head
through the streams that connect it to the San Juan River, even during the summer the Harbour
Head lagoon was accessed through i ts streams.”) (NCM, Vol. III, Annex 85); Affidavit of Manuel
Salvador Mora Ortiz (MILITARY), 15 December 2010. (“During the period in which I patrolled
the Caribbean coast line, Harbor Head zone was accessed through two points: during winter and
on certain occasions during summer, with difficulties due to the low flow, through the streams that
connect the San Juan River with Harbor Head, and during winter through the bar in front of Punta
Castilla…”) (NCM, Vol. III, Annex 86).
360not identify any caño or channel by name. This remains true even now after it has
been placed under an international magnifying glass. Nevertheless, Nicaragua’s
witness statements, as well as the contemporaneous police reports from 2000 and
2008 cited above, are clear. The 2008 report, for example, states: “On our return,
we had the opportunity to enter through a caño that conducted us to a lagoon
known as Harbour Head. According to Captain González’s [the officer in charge
in the area] explanation, that caño and that lagoon as well as the swamp of the
same name are Nicaraguan”. 911 If this statement does not refer to the caño in
dispute, Nicaragua again invites Cost a Rica to identify whatever other channels
that connect the river proper to the lagoon it thinks are being referenced.
6.127. Costa Rica’s arguments about the alleged lack of specificity about
which caño was being navigated also miss the point. The critical point here is that
Nicaragua consistently and over a period of several decades, at least, exercised
sovereign authority in exactly the area Costa Rica now claims has always been
understood to be Costa Rican territory. This core point would be undisturbed
911
Work Report of Enrique Jardiel Arteaga Núñez, Second Chief of the National Police, Río San
Juan Delegation to Commissioner José Miguel Pérez Solis, Head of Police Division, Río San Juan
(20 June 2008) (NCM, Vol. III, Annex 58) .See also, e.g. , Affidavit of Juan Francisco Gutiérrez
Espinoza (MILITARY), 15 December 2010. (“during the winter we used to enter Harbour Head
through the streams that connect it to the San Juan River, even during the summer the Harbour
Head lagoon was accessed through i ts streams.”) (NCM, Vol. III, Annex 85); Affidavit of Manuel
Salvador Mora Ortiz (MILITARY), 15 December 2010. (“During the period in which I patrolled
the Caribbean coast line, Harbor Head zone was accessed through two points: during winter and
on certain occasions during summer, with difficulties due to the low flow, through the streams that
connect the San Juan River with Harbor Head, and during winter through the bar in front of Punta
Castilla…”) (NCM, Vol. III, Annex 86). case brought by Costa Rica against Nicaragua one of the main arguments was
based on the right of Costa Rican tourists to navigate the San Juan. Yet, there is
no record of any Cos ta Rican tourist boats visiting this area. On the other hand,
Nicaragua could easily flood the Court with evidence of tourists and fishermen
living in or visiting San Juan de Nicaragua that frequently visited the area in
dispute.
6.130. More recently, in the case concerning Territorial and Maritime
Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
Honduras) the Court stated that witness statements were of limited value except to
the extent that they described facts – not opinions – peculiarly within the
916
knowledge of the declarant. That is exactly the case here. The declarations at
issue have been provided by Nicaraguan Army, Navy and Police personnel
precisely because they are the ones with direct personal knowle dge of the facts,
which are uniquely within their ken.
6.131. The accuracy and veracity of the witness statements Nicaragua
offers are also confirmed by contemporaneous official documentation. Both the
2000 and 2008 police reports quoted above show the facts to be exactly as attested
by Nicaragua’s witnesses: for years, Nicaraguan authorities have patrolled the
area, including the Harbour Head swamp, the caño and the lagoon on the
understanding that it was Nicaragua’s sovereign right to do so. At the same time ,
916
See Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 371, para. 244.
362case brought by Costa Rica against Nicaragua one of the main arguments was
based on the right of Costa Rican tourists to navigate the San Juan. Yet, there is
no record of any Cos ta Rican tourist boats visiting this area. On the other hand,
Nicaragua could easily flood the Court with evidence of tourists and fishermen
living in or visiting San Juan de Nicaragua that frequently visited the area in
dispute.
6.130. More recently, in the case concerning Territorial and Maritime
Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
Honduras) the Court stated that witness statements were of limited value except to
the extent that they described facts – not opinions – peculiarly within the
916
knowledge of the declarant. That is exactly the case here. The declarations at
issue have been provided by Nicaraguan Army, Navy and Police personnel
precisely because they are the ones with direct personal knowle dge of the facts,
which are uniquely within their ken.
6.131. The accuracy and veracity of the witness statements Nicaragua
offers are also confirmed by contemporaneous official documentation. Both the
2000 and 2008 police reports quoted above show the facts to be exactly as attested
by Nicaragua’s witnesses: for years, Nicaraguan authorities have patrolled the
area, including the Harbour Head swamp, the caño and the lagoon on the
understanding that it was Nicaragua’s sovereign right to do so. At the same time ,
916
See Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 371, para. 244. 3. Costa Rica’s Lack of Effectivités
6.133. Costa Rica’s Memorial tellingly does not present a single piece of
evidence that demonstrates its presence or activity in the area in dispute. The only
items it offers are a set of land use permits from 2006 and the vague invocation of
international treaties. There is no hint of actual conduct on the ground of the sort,
much less quantity, shown by Nicaragua.
6.134. Indeed, not one of the Nicaraguan Army, Navy or Police office rs
who monitored the area for years at a time ever saw Costa Rican officials in the
area. As one Nicaraguan officer explains, the closest Costa Rican presence was
located some 24 km upriver at the Delta post, where the Colorado River joins the
San Juan: “The only Costa Rican presence has been the rural guard or public force
post located in the Delta, from the San Juan River Delta throughout the river’s
mouth we never saw any presence of Costa Rican civil authorities or public
919
force.” Another officer stationed in the area in the 1990s similarly confirms:
“During the period in which I rendered my service as Chief of the Delegation of
the National Police at San Juan River, we never received any complaint or protest
from any Costa Rican authority or public force and, in the same way; we never
saw any presence of Costa Rican civil or public force authorities at Harbor
Head.” 920
919
Affidavit of Suban Antonio Yuri Valle Olivares (POLICE), 15 December 2010. (NCM, Vol.
920, Annex 84).
Affidavit of Luis Fernando Barrantes Jiménez (POLICE), 15 December 2010. (NCM, Vol. III,
Annex 82).
364 3. Costa Rica’s Lack of Effectivités
6.133. Costa Rica’s Memorial tellingly does not present a single piece of
evidence that demonstrates its presence or activity in the area in dispute. The only
items it offers are a set of land use permits from 2006 and the vague invocation of
international treaties. There is no hint of actual conduct on the ground of the sort,
much less quantity, shown by Nicaragua.
6.134. Indeed, not one of the Nicaraguan Army, Navy or Police office rs
who monitored the area for years at a time ever saw Costa Rican officials in the
area. As one Nicaraguan officer explains, the closest Costa Rican presence was
located some 24 km upriver at the Delta post, where the Colorado River joins the
San Juan: “The only Costa Rican presence has been the rural guard or public force
post located in the Delta, from the San Juan River Delta throughout the river’s
mouth we never saw any presence of Costa Rican civil authorities or public
919
force.” Another officer stat ioned in the area in the 1990s similarly confirms:
“During the period in which I rendered my service as Chief of the Delegation of
the National Police at San Juan River, we never received any complaint or protest
from any Costa Rican authority or public force and, in the same way; we never
saw any presence of Costa Rican civil or public force authorities at Harbor
Head.” 920
919
Affidavit of Suban Antonio Yuri Valle Olivares (POLICE), 15 December 2010. (NCM, Vol.
920, Annex 84).
Affidavit of Luis Fernando Barrantes Jiménez (POLICE), 15 December 2010. (NCM, Vol. III,
Annex 82). information provided in RAMSAR’s description of Costa Rica’s Humedal Caribe
Noreste is that it is located in “Limon and Heredia; 75, 310 ha, 10˚30’N 083˚30’
W.” This sole coordinate and identifying point refers to a point located more than
50 km south of the disputed area. 926
6.137. Costa Rica’s environmental decree fares no better. Executive
Decree No. 22962 simply establishes a two- km protected zone along the border
“from Punta Castilla in the Caribbean Sea to the Pacific Ocean … according to
what is stipulated in the Cañaz -Jerez Treaty of Limits of 15 April 1858.” 927Costa
928
Rica concludes that this “naturally … includes the entirety of Isla Portillos.”
But of course this statement conveniently assumes its own conclusion. The
decree includes the entirety of Harbour Head if and only if Costa Rica is correct
on the sovereignty question now pending before the Court. If it is not, it does not.
6.138. Costa Rica’s remaining evidence is a series of six land use permits,
929
all of which were issued in 2006. In reality, however, at most two of these
permits pertain to the disputed area – those belonging to Jose Alberto Alvarez
Nuñez 930and to Juan Carlos Segura Carvajal 931Even accepting these documents at
face value, the fact remains that two land use permits dug out from the archives of
926CRM, Vol. IV, Annex 141.
927CRM, para. 4.43.
928CRM, para. 4.43.
929CRM, para. 4.44.
930
931See CRM, Vol. V, Annex 216.
See CRM, Vol. V, Annex 217.
366information provided in RAMSAR’s description of Costa Rica’s Humedal Caribe
Noreste is that it is located in “Limon and Heredia; 75, 310 ha, 10˚30’N 083˚30’
W.” This sole coordinate and identifying point refers to a point located more than
50 km south of the disputed area. 926
6.137. Costa Rica’s environmental decree fares no better. Executive
Decree No. 22962 simply establishes a two- km protected zone along the border
“from Punta Castilla in the Caribbean Sea to the Pacific Ocean … according to
what is stipulated in the Cañaz -Jerez Treaty of Limits of 15 April 1858.” 927Costa
928
Rica concludes that this “naturally … includes the entirety of Isla Portillos.”
But of course this statement conveniently assumes its own conclusion. The
decree includes the entirety of Harbour Head if and only if Costa Rica is correct
on the sovereignty question now pending before the Court. If it is not, it does not.
6.138. Costa Rica’s remaining evidence is a series of six land use permits,
929
all of which were issued in 2006. In reality, however, at most two of these
permits pertain to the disputed area – those belonging to Jose Alberto Alvarez
Nuñez 930and to Juan Carlos Segura Carvajal 931Even accepting these documents at
face value, the fact remains that two land use permits dug out from the archives of
926CRM, Vol. IV, Annex 141.
927CRM, para. 4.43.
928CRM, para. 4.43.
929CRM, para. 4.44.
930
931See CRM, Vol. V, Annex 216.
See CRM, Vol. V, Annex 217. Alexander in 1897 as well as by the subsequent practice of the Parties. Changes in
the Gulf of San Juan.
1. Physical disappearance of the Bay of San Juan
6.141. Article IV of the 1858 Treaty of Limits between Nicaragua and
Costa Rica stipulates that,
“The Bay of San Juan del Norte, as well as the Salinas Bay, shall
be common to both Republics, and, therefore, both the advantages
of their use and the obligation to contribute to their defence shall
also be common.”
6.142. When this Treaty was signed on 15 April 1858, the San Juan River
debouched into the Bay of San Juan. This can be appreciate d in Figure 6.19 and
Figure 4.1. At the time, the Bay was the natural entrance to the San Juan River on
which Costa Rica had been granted rights of navigation for commercial purposes.
368Alexander in 1897 as well as by the subsequent practice of the Parties. Changes in
the Gulf of San Juan.
1. Physical disappearance of the Bay of San Juan
6.141. Article IV of the 1858 Treaty of Limits between Nicaragua and
Costa Rica stipulates that,
“The Bay of San Juan del Norte, as well as the Salinas Bay, shall
be common to both Republics, and, therefore, both the advantages
of their use and the obligation to contribute to their defence shall
also be common.”
6.142. When this Treaty was signed on 15 April 1858, the San Juan River
debouched into the Bay of San Juan. This can be appreciate d in Figure 6.19 and
Figure 4.1. At the time, the Bay was the natural entrance to the San Juan River on
which Costa Rica had been granted rights of navigation for commercial purposes.
water current of the San Juan changed its course and largely found an outlet
through the branch of the Colorado; that is, the main volume of water of the San
Juan River poured to the sea through Costa Rican territory.
Norte” from 1851 to 1906 are available in microfilm and can be obtained from the
934 935
United States National Archives and Records Administration. The dispatch sent
by the Consul on 26 February 1859, a year after the signing of the Treaty, gives a
detailed description of the changes in the Harbour of Greytown:
“The harbor of this port has for several months past, been filling up
and the entrance to it gradually growing narrower and shallower,
until none but the lighter draft vessels can enter it. I was told by
the pilot of the port this morning that yesterday afternoon there was
but fifteen feet water at the mouth, where six months ago the
soundings showed twenty-five feet!” 936
6.145. A former President of Costa Rica, Mr. Cleto Gonzalez Viquez, in
1910 published a record of “Tremors, Earthquakes, Floodings and Volcanic
Eruptions in Costa Rica (1608- 1910)” 937. His record for the year 1861 confirms
what the US Consul had reported. President Gonzalez notes:
“Floods have been and are frequent in the Atlantic region. It is
known that in that sector of the country, during the period of
torrential rains, the rivers often change their course and that…the
River San Juan has mostly changed its course to run through the
branch of the Colorado” 938
6.146. By 1872 the situation had become even more dramatic. The
dispatch from the United States Consul on 30 September of that year reports:
“At one time this harbor ranked high its depth of water having
been variously sounded by the exploring parties inspecting for an
interoceanic route and by the anchors of the ship cast almost any
where while engaged in trading here. Even frigates entered here
and the expanse of water from the town to the inlet was the
admiration of all. At that date the San Juan River debouched here.
935http://www.archives.gov/shop/ (last visited, 21 July 2012).
936Despatches from United States consuls in San Juan del Norte 1851 -1906 (National Archives
Microfilm Publication T-348, roll 3), General Records of the Department of State, Record Group
59, National Archives Building, Washington D.C. ( NCM, Vol. II, Annex 2).
937 Cleto González Víquez, Temblores, Terremotos, Inundaciones y Erupciones volcánicas en
Costa Rica (1608- 1910), Tipografía de Avelino Alsina, San José, Costa Rica, 1910. (NCM, Vol.
938 Annex 6).
Ibid.
370 935
United States National Archives and Records Administration. The dispatch sent
by the Consul on 26 February 1859, a year after the signing of the Treaty, gives a
detailed description of the changes in the Harbour of Greytown:
“The harbor of this port has for several months past, been filling up
and the entrance to it gradually growing narrower and shallower,
until none but the lighter draft vessels can enter it. I was told by
the pilot of the port this morning that yesterday afternoon there was
but fifteen feet water at the mouth, where six months ago the
soundings showed twenty-five feet!” 936
6.145. A former President of Costa Rica, Mr. Cleto Gonzalez Viquez, in
1910 published a record of “Tremors, Earthquakes, Floodings and Volcanic
Eruptions in Costa Rica (1608- 1910)” 93. His record for the year 1861 confirms
what the US Consul had reported. President Gonzalez notes:
“Floods have been and are frequent in the Atlantic region. It is
known that in that sector of the country, during the period of
torrential rains, the rivers often change their course and that…the
River San Juan has mostly changed its course to run through the
branch of the Colorado” 938
6.146. By 1872 the situation had become even more dramatic. The
dispatch from the United States Consul on 30 September of that year reports:
“At one time this harbor ranked high its depth of water having
been variously sounded by the exploring parties inspecting for an
interoceanic route and by the anchors of the ship cast almost any
where while engaged in trading here. Even frigates entered here
and the expanse of water from the town to the inlet was the
admiration of all. At that date the San Juan River debouched here.
935http://www.archives.gov/shop/ (last visited, 21 July 2012).
936Despatches from United States consuls in San Juan del Norte 1851 -1906 (National Archives
Microfilm Publication T-348, roll 3), General Records of the Department of State, Record Group
59, National Archives Building, Washington D.C. ( NCM, Vol. II, Annex 2).
937Cleto González Víquez, Temblores, Terremotos, Inundaciones y Erupciones volcánicas en
Costa Rica (1608- 1910), Tipografía de Avelino Alsina, San José, Costa Rica, 1910. (NCM, Vol.
938 Annex 6).
Ibid. and that the Bay, as the consul noted “has virtually closed” and had become a
“lagoon”.
Figure 6.20
Figure 6.20 San Juan de Nicaragua or Greytown surveyed under command of Comm. C. Hatfield
U.S.N. 1872 and Com. E.P. Lull U.S.N. 1873.
6.149. On 24 June 1885, shortly before the Nicaragua/Costa Rica dispute
was submitted to arbitration by President Cleveland, the Consul reported the,
“…completely ruined condition to which the once magnificent
harbor of Greytown is reduced. What in former days was a
spacious harbor of safe anchorage, and of easy approach is now
graphically described as a « mere lagoon with and uncertain inlet »
and the approach to it is dreaded and avoided by all navigators. As
372and that the Bay, as the consul noted “has virtually closed” and had become a
“lagoon”.
Figure 6.20
Figure 6.20 San Juan de Nicaragua or Greytown surveyed under command of Comm. C. Hatfield
U.S.N. 1872 and Com. E.P. Lull U.S.N. 1873.
6.149. On 24 June 1885, shortly before the Nicaragua/Costa Rica dispute
was submitted to arbitration by President Cleveland, the Consul reported the,
“…completely ruined condition to which the once magnificent
harbor of Greytown is reduced. What in former days was a
spacious harbor of safe anchorage, and of easy approach is now
graphically described as a « mere lagoon with and uncertain inlet »
and the approach to it is dreaded and avoided by all navigators. As 945
formed by the projection of Punta Arenas into the sea, has completely
disappeared.
2. The Cleveland Award
6.153. The mandate for the Cleveland Arbitration was contained in the
Treaty signed by both parties at Guatemala City on 24 December 1886. Article I
of this Treaty submitted to arbitration the validity of the 15 April 1858 Treaty. It
further provided in Article VI that if the Treaty was declared valid, then “the same
award shall declare whether Costa Rica has the right to navigate the River San
Juan with ships of war or revenue boats. Also the decision aforesaid shall, in case
of the validity of sa id Convention, decide the other points of doubtful
interpretation found by either of the Parties in the Treaty…”
6.154. Since the Treaty was declared valid, Nicaragua for its part
communicated to the Arbitrator eleven points it considered of doubtful
interpretation.
6.155. In its Argument presented to President Cleveland on 27 October
1887, Costa Rica’s representative, Mr. Pedro Perez Zeledon, indicated that,
“For Costa Rica there is not one single point in the treaty of limits
which is not perfectly clear…For this reason I do not submit to the 946
consideration of the Arbitrator any question relative to this point…”
945See Figure 6.19 (NCM, Vol. IV, Annex 120).
946Whether Costa Rica is bound to co-operate in the preservation and improvement of the San
Juan River and the Bay of San Juan, and in what manner; and whether Nicaragua can undertake
any work without considering the injury which may result to Costa Rica, Ar gument on the
Question of the validity of the Treaty of Limits between Costa Rica and Nicaragua and other
supplementary points connected with it, (Washingt on, Gibson Bros., 1887) p. 139.
374 945
formed by the projection of Punta Arenas into the sea, has completely
disappeared.
2. The Cleveland Award
6.153. The mandate for the Cleveland Arbitration was contained in the
Treaty signed by both parties at Guatemala City on 24 December 1886. Article I
of this Treaty submitted to arbitration the validity of the 15 April 1858 Treaty. It
further provided in Article VI that if the Treaty was declared valid, then “the same
award shall declare whether Costa Rica has the right to navigate the River San
Juan with ships of war or revenue boats. Also the decision aforesaid shall, in case
of the validity of sa id Convention, decide the other points of doubtful
interpretation found by either of the Parties in the Treaty…”
6.154. Since the Treaty was declared valid, Nicaragua for its part
communicated to the Arbitrator eleven points it considered of doubtful
interpretation.
6.155. In its Argument presented to President Cleveland on 27 October
1887, Costa Rica’s representative, Mr. Pedro Perez Zeledon, indicated that,
“For Costa Rica there is not one single point in the treaty of limits
which is not perfectly clear…For this reason I do not submit to the 946
consideration of the Arbitrator any question relative to this point…”
945See Figure 6.19 (NCM, Vol. IV, Annex 120).
946Whether Costa Rica is bound to co-operate in the preservation and improvement of the San
Juan River and the Bay of San Juan, and in what manner; and whether Nicaragua can undertake
any work without considering the injury which may result to Costa Rica, Ar gument on the
Question of the validity of the Treaty of Limits between Costa Rica and Nicaragua and other
supplementary points connected with it, (Washingt on, Gibson Bros., 1887) p. 139. 6.159. The questions referred to the works to maintain and improve
navigation in both the San Juan River and the Bay of San Juan. Although at this
point the analysis has addressed the question of the Bay, the contrasting position
of Costa Rica with respect to its own rights and obligations in the River and in the
Bay is illuminating. Costa Rica asserted in its written argument submitted to
President Cleveland 948that,
“The right of Costa Rica on the Bay of San Juan is a right of
sovereignty which she exercises jointly and in common with
Nicaragua; and the right of Costa Rica in the San Juan river…is the
right of use and navigation. In the former case Costa Rica is joint
owner; in the latter, Costa Rica is simply the cestuy que use.” 949
“The jus utendi does not involve the obligation to pay expenses for
the preservation of the thing us950 nor any other expenses alluded
to in questions Nos. 4 and 5.”
“In reference to the Bay of San Juan, over which the rights of
Costa Rica are sovereign, it seems unnecessary to state that the
limitation of abridgment of the said rights cannot take place,
whether directly or indirectly, except by an act of the will of Costa
Rica, and with her consent.” 951
“Referring now to Interrogatory No. 6, I shall state positively that
Costa Rica has the right to prevent Nicaragua from executing, at
her own cost, the works to which she alludes, whenever undertaken
without consideration of the right s which belong to Costa Rica,
whether as cestuy que use of the river, or as joint owner of the Bay,
or exclusive sovereign of the right bank of the San Juan river, and
948Whether Costa Rica is bound to co-operate in the preservation and improvement of the san Juan
river and the Bay of San Juan, and in what manner; and whether Nicaragua can undertake any
work without considering the injury which may result to Costa Rica, Argument on the Question of
the validity of the Treaty of Limits between Costa Rica and Nicaragua and other supplementary
points connected with it, Washington, Gibson Bros., 1887, pp. 162- 168. (NCM Vol. II, Annex 5).
949
950Ibid, p. 163.
951Ibid, p. 164.
Ibid, p. 165.
376 6.159. The questions referred to the works to maintain and improve
navigation in both the San Juan River and the Bay of San Juan. Although at this
point the analysis has addressed the question of the Bay, the contrasting position
of Costa Rica with respect to its own rights and obligations in the River and in the
Bay is illuminating. Costa Rica asserted in its written argument submitted to
President Cleveland 948that,
“The right of Costa Rica on the Bay of San Juan is a right of
sovereignty which she exercises jointly and in common with
Nicaragua; and the right of Costa Rica in the San Juan river…is the
right of use and navigation. In the former case Costa Rica is joint
owner; in the latter, Costa Rica is simply the cestuy que use.” 949
“The jus utendi does not involve the obligation to pay expenses for
the preservation of the thing us950 nor any other expenses alluded
to in questions Nos. 4 and 5.”
“In reference to the Bay of San Juan, over which the rights of
Costa Rica are sovereign, it seems unnecessary to state that the
limitation of abridgment of the said rights cannot take place,
whether directly or indirectly, except by an act of the will of Costa
Rica, and with her consent.” 951
“Referring now to Interrogatory No. 6, I shall state positively that
Costa Rica has the right to prevent Nicaragua from executing, at
her own cost, the works to which she alludes, whenever undertaken
without consideration of the right s which belong to Costa Rica,
whether as cestuy que use of the river, or as joint owner of the Bay,
or exclusive sovereign of the right bank of the San Juan river, and
948Whether Costa Rica is bound to co-operate in the preservation and improvement of the san Juan
river and the Bay of San Juan, and in what manner; and whether Nicaragua can undertake any
work without considering the injury which may result to Costa Rica, Argument on the Question of
the validity of the Treaty of Limits between Costa Rica and Nicaragua and other supplementary
points connected with it, Washington, Gibson Bros., 1887, pp. 162- 168. (NCM Vol. II, Annex 5).
949
950Ibid, p. 163.
951Ibid, p. 164.
Ibid, p. 165. consent of both co- owners who would, in that case, agree on apportioning the
expenses involved.
6.162. The Cleveland Award was clear on these points: Costa Rica was
not bound to concur in the expense s of keeping the Bay free or the River flowing
(p. 4) nor was she bound to contribute any proportion of such expenses (p. 5) and
she could not prevent Nicaragua from executing such works at her own expense
(p. 6). President Cleveland decided that,
“4. The Republic of Costa Rica is not bound to concur with
the Republic of Nicaragua in the expenses necessary to
prevent the Bay of San Juan del Norte from being obstructed;
to keep the navigation of the River or Port free and
unembarrassed, or to improve it for the common benefit.
“5. The Republic of Costa Rica is not bound to contribute any
proportion of the expenses that may be incurred by the
Republic of Nicaragua for any of the purposes above
mentioned.
“6. The Republic of Costa Rica cannot prevent the Republic
of Nicaragua from executing at her own expense and within
her own territory such works of improvement, provided such
works of improvement do not result in the occupation or
flooding of Costa Rica territory, or in the destruction or
serious impairment of the navigation of the said River or any
of its branches at any point where Costa Rica is entitled to
navigate the same. The Republic of Costa Rica has the right
to demand indemnification for any places belonging to her on
the right banks of the River San Juan which may be occupied
without her consent, and for any lands on the same bank
which may be flooded or damaged in any other way in
consequence of works of improvement.”
6.163. Costa Rica’s position before President Cleveland was very clear.
As co-sovereign of the Bay it was an indispensable party to any enterprise in the
378consent of both co- owners who would, in that case, agree on apportioning the
expenses involved.
6.162. The Cleveland Award was clear on these points: Costa Rica was
not bound to concur in the expense s of keeping the Bay free or the River flowing
(p. 4) nor was she bound to contribute any proportion of such expenses (p. 5) and
she could not prevent Nicaragua from executing such works at her own expense
(p. 6). President Cleveland decided that,
“4. The Republic of Costa Rica is not bound to concur with
the Republic of Nicaragua in the expenses necessary to
prevent the Bay of San Juan del Norte from being obstructed;
to keep the navigation of the River or Port free and
unembarrassed, or to improve it for the common benefit.
“5. The Republic of Costa Rica is not bound to contribute any
proportion of the expenses that may be incurred by the
Republic of Nicaragua for any of the purposes above
mentioned.
“6. The Republic of Costa Rica cannot prevent the Republic
of Nicaragua from executing at her own expense and within
her own territory such works of improvement, provided such
works of improvement do not result in the occupation or
flooding of Costa Rica territory, or in the destruction or
serious impairment of the navigation of the said River or any
of its branches at any point where Costa Rica is entitled to
navigate the same. The Republic of Costa Rica has the right
to demand indemnification for any places belonging to her on
the right banks of the River San Juan which may be occupied
without her consent, and for any lands on the same bank
which may be flooded or damaged in any other way in
consequence of works of improvement.”
6.163. Costa Rica’s position before President Cleveland was very clear.
As co-sovereign of the Bay it was an indispensable party to any enterprise in the east flowing branches. 955 General Alexander determined that Punta de Castilla
was located “on the northwestern extremity of what seems to be the solid land, on
the east side of Harbor Head Lagoon”.
6.167. This first Alexander Award determined that Punta de Castilla was
located towards the right side (eastward side) of the outlet of the San Juan and
thus traced out a delimitation that started at the north east side of Harbour Head
Lagoon, in effect leaving wh at was the original Bay of San Juan entirely on the
Nicaraguan side and enclosed by Nicaraguan land territory. General Alexander’s
Award confirmed the physical reality that the Bay no longer exists and that Costa
Rica has no rights west or north of the line drawn by Alexander.
6.168. The Alexander Award confirmed the Cleveland Award with respect
to the situation of the Bay of San Juan; that is, that the present day area where the
Bay of San Juan had formerly been located – its eastern and western section – was
entirely within and was part of Nicaraguan territory.
6.169. Harbor Head Lagoon was an integral part of the Bay of San Juan as
th
can be appreciated in any of the 19 Century maps before the Bay silted up and
ceased to exist. In spite of the fact that Harbor Head Lagoon is the closest part to
Costa Rican territory of what was once the Bay of San Juan, Costa Rica accepts
that it is part of Nicaraguan territory because Alexander’s demarcation attributed
it to Nicaragua. There is then no reason for Costa Rica to now claim that it has co-
955
See sketch attached to First Award, p.70 (CRM,Vol II, Annex 9); see paras. 6.37 – 6.44 above.
380east flowing branches. 955 General Alexander determined that Punta de Castilla
was located “on the northwestern extremity of what seems to be the solid land, on
the east side of Harbor Head Lagoon”.
6.167. This first Alexander Award determined that Punta de Castilla was
located towards the right side (eastward side) of the outlet of the San Juan and
thus traced out a delimitation that started at the north east side of Harbour Head
Lagoon, in effect leaving wh at was the original Bay of San Juan entirely on the
Nicaraguan side and enclosed by Nicaraguan land territory. General Alexander’s
Award confirmed the physical reality that the Bay no longer exists and that Costa
Rica has no rights west or north of the line drawn by Alexander.
6.168. The Alexander Award confirmed the Cleveland Award with respect
to the situation of the Bay of San Juan; that is, that the present day area where the
Bay of San Juan had formerly been located – its eastern and western section – was
entirely within and was part of Nicaraguan territory.
6.169. Harbor Head Lagoon was an integral part of the Bay of San Juan as
th
can be appreciated in any of the 19 Century maps before the Bay silted up and
ceased to exist. In spite of the fact that Harbor Head Lagoon is the closest part to
Costa Rican territory of what was once the Bay of San Juan, Costa Rica accepts
that it is part of Nicaraguan territory because Alexander’s demarcation attributed
it to Nicaragua. There is then no reason for Costa Rica to now claim that it has co-
955
See sketch attached to First Award, p.70 (CRM,Vol II, Annex 9); see paras. 6.37 – 6.44 above. 957
Costa Rica might claim over it. Costa Rica replied on 14 March 2012
reaffirming its claim that the waters of the Bay of San Juan were common to both
Parties. 958
5. Loss of Territory in International Law
6.173. The loss of territory through the act of nature is not a novelty in
international law. It is a question amply discussed in Roman law and carried into
the Civil Codes of many nations, including most Latin American nations such as
Costa Rica and Nicaragua. It has been a common topic in publications of
international law.
6.174. Calvo, referring to changes in the course of rivers, stated: “For the
solution of all these questions the principles of roman legislation has generally
been applied and these changes have been considered as legitimate means of
acquiring property.” 959
6.175. “Operations of nature a s a mode of losing territory correspond to
accretion as a mode of acquiring it. Just as through accretion a state may be
enlarged, so it may be diminished through the disappearance of land and other
957Diplomatic Note from the Minister of Foreign Affairs of Nicaragua to the Minister of Foreign
Affairs and Worship of Costa Rica Ref: MRE/DM -AJ/118/02/12, 13 February 2012 (NCM, Vol.
III, Annex 77 (2)).
958Diplomatic Note from the Minister of Foreign Affairs and Worship of Costa Rica to the
Minister of Foreign Affairs of Nicaragua, Ref: DM -AM-144-12, 14 March 2012 (NCM, Vol. III,
959ex 77 (3)).
“Para la solución de todas estas cuestiones se han aplicadoeneralmente los principios de la
legislación romana y se han considerado estos cambios como un medio legitimo de adquirir
propiedad.” Derecho Internacional, Paris 1868 Ed., Vol. 1, Section 171, at p. 272.
382 957
Costa Rica might claim over it. Costa Rica replied on 14 March 2012
reaffirming its claim that the waters of the Bay of San Juan were common to both
Parties.958
5. Loss of Territory in International Law
6.173. The loss of territory through the act of nature is not a novelty in
international law. It is a question amply discussed in Roman law and carried into
the Civil Codes of many nations, including most Latin American nations such as
Costa Rica and Nicaragua. It has been a common topic in publications of
international law.
6.174. Calvo, referring to changes in the course of rivers, stated: “For the
solution of all these questions the principles of roman legislation has generally
been applied and these changes have been considered as legitimate means of
acquiring property.” 959
6.175. “Operations of nature a s a mode of losing territory correspond to
accretion as a mode of acquiring it. Just as through accretion a state may be
enlarged, so it may be diminished through the disappearance of land and other
957Diplomatic Note from the Minister of Foreign Affairs of Nicaragua to the Minister of Foreign
Affairs and Worship of Costa Rica Ref: MRE/DM -AJ/118/02/12, 13 February 2012 (NCM, Vol.
III, Annex 77 (2)).
958Diplomatic Note from the Minister of Foreign Affairs and Worship of Costa Rica to the
Minister of Foreign Affairs of Nicaragua, Ref: DM -AM-144-12, 14 March 2012 (NCM, Vol. III,
959ex 77 (3)).
“Para la solución de todas estas cuestiones se han aplicadoeneralmente los principios de la
legislación romana y se han considerado estos cambios como un medio legitimo de adquirir
propiedad.” Derecho Internacional, Paris 1868 Ed., Vol. 1, Section 171, at p. 272. 6.180. General Alexander determined that the line of delimitation did not
enter or cross into the area where the Bay of San Juan was originally located. The
area were the Bay was located was left entirely on the Nicaraguan side of the
border.
6.181. The loss of any rights by Costa Rica over the former San Juan Bay
has been confirmed by the practice of the Parties.
6.182. For all the reasons discussed in this Chapter, Nicaragua considers
to be well-established its sovereignty over the area around Harbour Head and the
waters of the caño in dispute, as well as in the former Bay of San Juan.
384 6.180. General Alexander determined that the line of delimitation did not
enter or cross into the area where the Bay of San Juan was originally located. The
area were the Bay was located was left entirely on the Nicaraguan side of the
border.
6.181. The loss of any rights by Costa Rica over the former San Juan Bay
has been confirmed by the practice of the Parties.
6.182. For all the reasons discussed in this Chapter, Nicaragua considers
to be well-established its sovereignty over the area around Harbour Head and the
waters of the caño in dispute, as well as in the former Bay of San Juan. necessary to avoid irreparable prejudice being caused to the part of the
wetland where that territory is situated; Costa Rica shall consult with
the Secretariat of the Ramsar Convention in regard to these actions,
give Nicaragua prior notice of them and use its best endeavours to find
common solutions with Nicaragua in this respect;
(3) Unanimously,
Each Party shall refrain from any action which might aggravate or
extend the dispute before the Court or make it more difficult to
resolve;
(4) Unanimously,
Each Party shall inform the Court as to i ts compliance with the above
963
provisional measures.”
7.5 In its Memorial, Costa Rica accuses Nicaragua of having acted and
still acting in violation of three of them. It asserts that:
“Nicaragua has breached the First, Second and Third provisional
measures in dicated by the Court in its Order with respect to the
conduct of the ‘Sandinista Youth’, public officials and journalists on
the nort964n part of Isla Portillos to which the Provisional Measures
apply.”
7.6 Not only has Nicaragua not breached any of the provi sional
measures ordered by the International Court of Justice on 8 March 2011 but
Nicaragua has acted with all due diligence and has taken appropriate measures to
ensure that the disputed territory remains free of Nicaraguan personnel ( 1), while
the acts of the Guardabarranco Environmental Movement (miscalled “Sandinista
Youth” by Costa Rica) cannot be attributed to Nicaragua (2). On the contrary, for
its part, Costa Rica has breached the Court’s Order of 8 March 2011 (3).
963
I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
(Costa Rica v. Nicaragua), Request for the indication of provisional measures , para. 86.
964CRM, p. 263, para. 6.1. See also para. 6.2.
386 necessary to avoid irreparable prejudice being caused to the part of the
wetland where that territory is situated; Costa Rica shall consult with
the Secretariat of the Ramsar Convention in regard to these actions,
give Nicaragua prior notice of them and use its best endeavours to find
common solutions with Nicaragua in this respect;
(3) Unanimously,
Each Party shall refrain from any action which might aggravate or
extend the dispute before the Court or make it more difficult to
resolve;
(4) Unanimously,
Each Party shall inform the Court as to i ts compliance with the above
963
provisional measures.”
7.5 In its Memorial, Costa Rica accuses Nicaragua of having acted and
still acting in violation of three of them. It asserts that:
“Nicaragua has breached the First, Second and Third provisional
measures in dicated by the Court in its Order with respect to the
conduct of the ‘Sandinista Youth’, public officials and journalists on
the nort964n part of Isla Portillos to which the Provisional Measures
apply.”
7.6 Not only has Nicaragua not breached any of the provi sional
measures ordered by the International Court of Justice on 8 March 2011 but
Nicaragua has acted with all due diligence and has taken appropriate measures to
ensure that the disputed territory remains free of Nicaraguan personnel ( 1), while
the acts of the Guardabarranco Environmental Movement (miscalled “Sandinista
Youth” by Costa Rica) cannot be attributed to Nicaragua (2). On the contrary, for
its part, Costa Rica has breached the Court’s Order of 8 March 2011 (3).
963
I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
(Costa Rica v. Nicaragua), Request for the indication of provisional measures , para. 86.
964CRM, p. 263, para. 6.1. See also para. 6.2. near the area in dispute to the San Juan de Nicaragua R iver and Harbor Head
967
Lagoon.
7.9 This military order has been scrupulously observed and, contrary to
Costa Rica’s assertion otherwise, Nicaragua did not send “public officials to the
968
relevant area ‘in Air Force helicopters’” .Costa Rica’s Memorial is misleading
in this respect. As the press article quoted by Costa Rica confirms, 969 these
helicopters landed outside the disputed territory, specifically the town of San
Juan de Nicaragua, which although located near the area in dispute,
unquestionably belongs to Nicaragua.
7.10 On 12 March 2011, three days after the reading of the Court’s
Order, a technical mission of RAMSAR was carried out in Nicaragua. In order not
to contravene the order of the Court, “the inspection did not include a visit of the
disputed territory.” 970However, RAMSAR experts visited the biosphere reserve
“Refugio de Vida Silvestre Rio San Jua n” as well as areas around the territory in
dispute in which Nicaragua has undisputed sovereignty, including Harbour Head
Lagoon. 971
trafficking plan, rural, security plan and presidential Decree 79/2009 at the San Juan de Nicaragua
967ectorate, 9 March 2011, para. 1 (NCM, Vol. III, Annex 36).
968Ibid., para. 2.
See CRM, pp. 281-282, para. 6.32.
969Ibid. (quoting El Nuevo Diario (Nicaragua), “Ticos continue inspection, rejected by Nicaragua,
in disputed area’ and ‘General Avilés aplaudes the “heroic deed” of the 19 July Sandini sta Youth”,
6 April 2011 (CRM, Vol. III, Annex 126 (b), p. 456)).
970Note from the Minister of Fore ign Affairs of Nicaragua to the Minister of Foreign Affairs and
Worship of Costa Rica, Ref: MRE -DM-AJST-349-04-11, 1 April 2011, para. 6 (CRM, vol. III,
971ex 78, pp. 188-189).
The final report of the Ramsar visit to Nicaragua has not yet been made publi c. Nicaragua will
provide the Court with a copy of the report when it receives the official and final version.
388 near the area in dispute to the San Juan de Nicaragua R iver and Harbor Head
967
Lagoon.
7.9 This military order has been scrupulously observed and, contrary to
Costa Rica’s assertion otherwise, Nicaragua did not send “public officials to the
968
relevant area ‘in Air Force helicopters’” .Costa Rica’s Memorial is misleading
in this respect. As the press article quoted by Costa Rica confirms, 969these
helicopters landed outside the disputed territory, specifically the town of San
Juan de Nicaragua, which although located near the area in dispute,
unquestionably belongs to Nicaragua.
7.10 On 12 March 2011, three days after the reading of the Court’s
Order, a technical mission of RAMSAR was carried out in Nicaragua. In order not
to contravene the order of the Court, “the inspection did not include a visit of the
disputed territory.” 970 However, RAMSAR experts visited the biosphere reserve
“Refugio de Vida Silvestre Rio San Jua n” as well as areas around the territory in
dispute in which Nicaragua has undisputed sovereignty, including Harbour Head
Lagoon. 971
trafficking plan, rural, security plan and presidential Decree 79/2009 at the San Juan de Nicaragua
967ectorate, 9 March 2011, para. 1 (NCM, Vol. III, Annex 36).
968Ibid., para. 2.
See CRM, pp. 281-282, para. 6.32.
969Ibid. (quoting El Nuevo Diario (Nicaragua), “Ticos continue inspection, rejected by Nicaragua,
in disputed area’ and ‘General Avilés aplaudes the “heroic deed” of the 19 July Sandini sta Youth”,
6 April 2011 (CRM, Vol. III, Annex 126 (b), p. 456)).
970Note from the Minister of Fore ign Affairs of Nicaragua to the Minister of Foreign Affairs and
Worship of Costa Rica, Ref: MRE -DM-AJST-349-04-11, 1 April 2011, para. 6 (CRM, vol. III,
971ex 78, pp. 188-189).
The final report of the Ramsar visit to Nicaragua has not yet been made publi c. Nicaragua will
provide the Court with a copy of the report when it receives the official and final version. members of the Sandinista Youth, the Guardabarranco Environmental Movement
is an independent organisation w ith the main objective of protecting the
environment throughout Nicaragua. The member of the Guardabarranco
Environmental Movement could never be considered “Nicaraguan troops”.
(a) The Court’s Order does not prohibit private individuals
to travel to the disputed territory
7.15 The first provisional measure reads as follows:
“Each Party shall refrain from sending to, or maintaining in the
disputed territory, 975luding the caño, any personnel, whether civilian,
police or security”
7.16 Costa Rica gives a very b road interpretation of this measure. It
asserts that:
“Under paragraph 86(1), both parties are under an obligation to
prevent any and all persons from976tering or maintaining a presence
in the disputed territory […].”
“Nicaragua has breached the obligatio n not to send to or maintain
civilians in the relevant area.”977
“[i]n the present case, the primary obligation “not to send to or
maintain in the disputed territory” has as its substantive goal a general
prohibition of on citizens from either Party entering the disputed
territory. As such, it encompasses a corollary to ensure that no one is
sent to or maintained in the territory, and to not knowingly permit the
presence of 978 person in the territory. This is an obligation of due
diligence.”
975
I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
976sta Rica v. Nicaragua), Request for the indication of provisional measures , para. 86.
977CRM, pp. 280-281, para. 6.30.
978CRM, pp. 201-282, para. 6.32.
CRM, pp. 284-285, para. 6.37.
390members of the Sandinista Youth, the Guardabarranco Environmental Movement
is an independent organisation w ith the main objective of protecting the
environment throughout Nicaragua. The member of the Guardabarranco
Environmental Movement could never be considered “Nicaraguan troops”.
(a) The Court’s Order does not prohibit private individuals
to travel to the disputed territory
7.15 The first provisional measure reads as follows:
“Each Party shall refrain from sending to, or maintaining in the
disputed territory, 975luding the caño, any personnel, whether civilian,
police or security”
7.16 Costa Rica gives a very b road interpretation of this measure. It
asserts that:
“Under paragraph 86(1), both parties are under an obligation to
prevent any and all persons from976tering or maintaining a presence
in the disputed territory […].”
“Nicaragua has breached the obligatio n not to send to or maintain
civilians in the relevant area.”977
“[i]n the present case, the primary obligation “not to send to or
maintain in the disputed territory” has as its substantive goal a general
prohibition of on citizens from either Party entering the disputed
territory. As such, it encompasses a corollary to ensure that no one is
sent to or maintained in the territory, and to not knowingly permit the
presence of 978 person in the territory. This is an obligation of due
diligence.”
975
I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
976sta Rica v. Nicaragua), Request for the indication of provisional measures , para. 86.
977CRM, pp. 280-281, para. 6.30.
978CRM, pp. 201-282, para. 6.32.
CRM, pp. 284-285, para. 6.37. Movement, “whose main objective is to implement environmental conservation
982
programmes and projects.”
7.20 This attitude of Costa Rica towards the Guardabar ranco
Environmental Movement is rather surprising, considering the fact that in its
Request for the Indication of Provisional Measures Costa Rica only requested the
“Immediate and unconditional withdrawal of all Nicaraguan troops from the
unlawfully invaded and occupied Costa Rican territories”.
(b) Members of the Guardabarranco Environmental
Movement are not de facto personnel of Nicaragua
7.21 The International Law Commission recalled that “[a]s a general
principle, the conduct of private persons or entities is not attributable to the State
983
under international law.” The responsibility of a State for acts committed by
persons or groups of persons is exceptional. Such responsibility can be incurred
“only if, assuming those acts to be internationally wrongful, the y are attributable
984
to it under the rule of customary international law reflected in Article 8.”
982See El 19 Digital, Nicaragua, “Guardabarranco Youth movement in favor of environmental
protection”, 29 August 2009 (CRM, Vol. III, Annex 102, p. 313).
983ILC Commentary on the articles on Responsibility of States for Internationally Wrongful Acts,
Yearbook of the International Law Commission, 2001, vol. II, Part Two, p. 47, Commentary on
Article 8, para. 1.
984
I.C.J., Judgment, 26 February 2007, Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J.
Reports 2007, p. 210, para. 406.
392Movement, “whose main objective is to implement environmental conservation
982
programmes and projects.”
7.20 This attitude of Costa Rica towards the Guardabar ranco
Environmental Movement is rather surprising, considering the fact that in its
Request for the Indication of Provisional Measures Costa Rica only requested the
“Immediate and unconditional withdrawal of all Nicaraguan troops from the
unlawfully invaded and occupied Costa Rican territories”.
(b) Members of the Guardabarranco Environmental
Movement are not de facto personnel of Nicaragua
7.21 The International Law Commission recalled that “[a]s a general
principle, the conduct of private persons or entities is not attributable to the State
983
under international law.” The responsibility of a State for acts committed by
persons or groups of persons is exceptional. Such responsibility can be incurred
“only if, assuming those acts to be internationally wrongful, the y are attributable
984
to it under the rule of customary international law reflected in Article 8.”
982See El 19 Digital, Nicaragua, “Guardabarranco Youth movement in favor of environmental
protection”, 29 August 2009 (CRM, Vol. III, Annex 102, p. 313).
983ILC Commentary on the articles on Responsibility of States for Internationally Wrongful Acts,
Yearbook of the International Law Commission, 2001, vol. II, Part Two, p. 47, Commentary on
Article 8, para. 1.
984
I.C.J., Judgment, 26 February 2007, Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J.
Reports 2007, p. 210, para. 406. 7.24 Even if these persons had occasioned harm, which is not the case,
this could not be attributed to Nicaragua as is demonstrated below.
7.25 It is apparent that the stan dard required to attribute acts of private
persons to a State is very high. In the case concerning the United States
Diplomatic and Consular Staff in Tehran, the Court had to determine whether the
“conduct in mounting the attack, overrunning the Embassy and seizing its inmates
as hostages” 988of militants could be attributed to the Iranian State. Although the
Court noted that
“it is true, the religious leader of the country, the Ayatollah Khomeini,
had made several public declarations inveighing against the United
States as responsible for all his country’s problems” 989
7.26 and that
“the information before the Court also indicates that a spokesman for
the militants, in explaining their action afterwards, did expressly refer
to a me990ge issued by the Ayatollah Khomeini, on 1 November
1979”
7.27 The Court decided that it had not been “established that, in fact, on
the occasion in question the militants acted on behalf of the State, having been
charged by some competent organ of the Iranian State to carry out a speci fic
operation.” 991
7.28 In any event, there is a decisive difference between the United
States Diplomatic and Consular Staff in Tehran case and the present dispute. Acts
988
989Ibid., p. 29, para. 58.
Ibid., pp. 29-30, para. 59.
990Ibid.
991Ibid., p. 29, para. 58.
394 7.24 Even if these persons had occasioned harm, which is not the case,
this could not be attributed to Nicaragua as is demonstrated below.
7.25 It is apparent that the stan dard required to attribute acts of private
persons to a State is very high. In the case concerning the United States
Diplomatic and Consular Staff in Tehran, the Court had to determine whether the
“conduct in mounting the attack, overrunning the Embassy and seizing its inmates
as hostages” 988of militants could be attributed to the Iranian State. Although the
Court noted that
“it is true, the religious leader of the country, the Ayatollah Khomeini,
had made several public declarations inveighing against the United
States as responsible for all his country’s problems” 989
7.26 and that
“the information before the Court also indicates that a spokesman for
the militants, in explaining their action afterwards, did expressly refer
to a m990age issued by the Ayatollah Khomeini, on 1 November
1979”
7.27 The Court decided that it had not been “established that, in fact, on
the occasion in question the militants acted on behalf of the State, having been
charged by some competent organ of the Iranian State to carry out a speci fic
operation.” 991
7.28 In any event, there is a decisive difference between the United
States Diplomatic and Consular Staff in Tehran case and the present dispute. Acts
988
989Ibid., p. 29, para. 58.
Ibid., pp. 29-30, para. 59.
990Ibid.
991Ibid., p. 29, para. 58. does not … suffice to establish with the requisite certainty the existence at that
995
time of such a link between the militants and any competent organ of the State.”
Moreover, here again, the alleged activities have nothing in common with acts of
the contras in the case concerning Military and Paramilitary Activities in and
against Nicaragua or the Scorpions et al. in the Genocide case or even the acts of
another type such as that of Argentinian groups blocking the main bridges and
roads linking Argentina and Uruguay in the case concerning Pulp Mills on the
River Uruguay.
7.32 In support of its claims, Costa Rica presents a press repor t stating
that the environmental movements received “full support” 996of the Nicaraguan
government but provides no evidence to support that claim. Nor do any of the
statements of Nicaraguan officials relied upon by Costa Rica, as reported in the
media, support its assertion: 997
- “the Chief of the Nicaraguan Army, General Aviles, stated “I
applaud the attitude of these boys and girls who have done this, it is a
998
highly patriotic attitude” Although this might show approval, it
contradicts Costa Rica’s claims about Nicaraguan government control.
- “the Nicaraguan Deputy Minister of the Environment, Roberto
Arquistain expressly stated that the operation was mounted by the
Nicaraguan government; and g ave praise and encouragement to the
995
I.C.J., Judgment, 24 May 1980, United States Diplomatic and Consular Staff in Tehran, I.C.J.
996orts 1980, p. 29, para. 58.
CRM, pp. 267-268, para. 6.7 quoting La Prensa (Nicaragua), ‘Army provides support for July
19 Sandinista Youth in RiverSan Juan’, 5 April 2011 (CRM, Vol. III, Annex 123).
997CRM, pp. 286-287, para. 6.41.
998El Nuevo Diario (Nicaragua), ‘Ticos continue inspection, rejected by Nicaragua, in disputed
area’ and ‘General Avilés aplaudes the “heroic deed” of the 19 July Sandinista Youth’, 6 April
2011 (CRM, vol. III, Annex 126 (a) and (b)). See also p. 271, para. 6.15.
396does not … suffice to establish with the requisite certainty the existence at that
995
time of such a link between the militants and any competent organ of the State.”
Moreover, here again, the alleged activities have nothing in common with acts of
the contras in the case concerning Military and Paramilitary Activities in and
against Nicaragua or the Scorpions et al. in the Genocide case or even the acts of
another type such as that of Argentinian groups blocking the main bridges and
roads linking Argentina and Uruguay in the case concerning Pulp Mills on the
River Uruguay.
7.32 In support of its claims, Costa Rica presents a press repor t stating
that the environmental movements received “full support” 996 of the Nicaraguan
government but provides no evidence to support that claim. Nor do any of the
statements of Nicaraguan officials relied upon by Costa Rica, as reported in the
media, support its assertion: 997
- “the Chief of the Nicaraguan Army, General Aviles, stated “I
applaud the attitude of these boys and girls who have done this, it is a
998
highly patriotic attitude” Although this might show approval, it
contradicts Costa Rica’s claims about Nicaraguan government control.
- “the Nicaraguan Deputy Minister of the Environment, Roberto
Arquistain expressly stated that the operation was mounted by the
Nicaraguan government; and g ave praise and encouragement to the
995
I.C.J., Judgment, 24 May 1980, United States Diplomatic and Consular Staff in Tehran, I.C.J.
996orts 1980, p. 29, para. 58.
CRM, pp. 267-268, para. 6.7 quoting La Prensa (Nicaragua), ‘Army provides support for July
19 Sandinista Youth in RiverSan Juan’, 5 April 2011 (CRM, Vol. III, Annex 123).
997CRM, pp. 286-287, para. 6.41.
998El Nuevo Diario (Nicaragua), ‘Ticos continue inspection, rejected by Nicaragua, in disputed
area’ and ‘General Avilés aplaudes the “heroic deed” of the 19 July Sandinista Youth’, 6 April
2011 (CRM, vol. III, Annex 126 (a) and (b)). See also p. 271, para. 6.15. 1004
would be insufficient to justify attr ibution of the conduct to the State.” Even
this “general situation” is far from realized in the present case. In any event the
activities carried out by this group in an uninhabited wetland are not
internationally wrongful acts nor have they caused prejudice to the disputed area.
3. In any event, no violation of the Court’s Order has been
committed
(a) Costa Rica has not been prevented from exercising its
rights under the second provisional measure
7.34 The second provisional measure reads as follows:
“Notwithstanding point (1) above, Costa Rica may dispatch civilian
personnel charged with the protection of the environment to the
disputed territory, including the caño, but only in so far as it is
necessary to avoid irreparable prejudice being caused to the part of the
wetland where that territory is situated; Costa Rica shall consult with
the Secretariat of the Ramsar Convention in regard to these actions,
give Nicaragua prior notice of them and use its best endeavours to find
common solutions with Nicaragua in this respect.” 1005
7.35 Costa Rica asserts:
“By contrast Nicaraguan personnel have not only been dispatched to
the territory, but their presence was directed at harassing the Mission
and was intended to impede activities necessary to avoid irreparable
prejudice being caused to the wetland. The presence of some 100 to
150 people in an otherwise generally uninhabited wetland represents
by itself a threat to the ecosystem.”006
1004ILC Commentary on the Draft articles on Responsibility of States for internationally wrongful
acts Yearbook of the International Law Commission, 2001, vol. II, Part Two, pp. 47- 48,
1005entary on Article 8, para. 4.
I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
1006ta Rica v. Nicaragua), Request for the indication of provisional measures , para. 86.
CRM, p. 289, para. 6.48.
398 1004
would be insufficient to justify attr ibution of the conduct to the State.” Even
this “general situation” is far from realized in the present case. In any event the
activities carried out by this group in an uninhabited wetland are not
internationally wrongful acts nor have they caused prejudice to the disputed area.
3. In any event, no violation of the Court’s Order has been
committed
(a) Costa Rica has not been prevented from exercising its
rights under the second provisional measure
7.34 The second provisional measure reads as follows:
“Notwithstanding point (1) above, Costa Rica may dispatch civilian
personnel charged with the protection of the environment to the
disputed territory, including the caño, but only in so far as it is
necessary to avoid irreparable prejudice being caused to the part of the
wetland where that territory is situated; Costa Rica shall consult with
the Secretariat of the Ramsar Convention in regard to these actions,
give Nicaragua prior notice of them and use its best endeavours to find
common solutions with Nicaragua in this respect.” 1005
7.35 Costa Rica asserts:
“By contrast Nicaraguan personnel have not only been dispatched to
the territory, but their presence was directed at harassing the Mission
and was intended to impede activities necessary to avoid irreparable
prejudice being caused to the wetland. The presence of some 100 to
150 people in an otherwise generally uninhabited wetland represents
by itself a threat to the ecosystem.”006
1004ILC Commentary on the Draft articles on Responsibility of States for internationally wrongful
acts Yearbook of the International Law Commission, 2001, vol. II, Part Two, pp. 47- 48,
1005entary on Article 8, para. 4.
I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
1006ta Rica v. Nicaragua), Request for the indication of provisional measures , para. 86.
CRM, p. 289, para. 6.48. 1010
submitted on 3 July 2012. As the Court can see, nothing in this report indicates
that this visit was blocked.
(b) The dispute has not been aggravated, extended or made
more difficult to resolve
7.40 The third provisional measure reads as follows:
“Each Party shall refrain from any action which might aggravate or
extend th1011spute before the Court or make it more difficult to
resolve”
7.41 According to Costa Rica:
“By sending members of the ‘Sandinista Youth’ to stay in the relevant area of the
provisional measures, by accomplishing different tasks in this area and by
preventing the Joint Environmental Mission to fulfill its role, Nicaragua
1012
aggravated the dispute.”
7.42 As demonstrated above, 1013the conduct of the members of the
Guardabarranco Environmental Movement cannot be attributed to Nicaragua.
7.43 However, even if the Court were to decide that acts of the members
of the “Sandinista [Guardabarranco Environmental Movement] Youth” are
attributable to Nicaragua ( quod non), no action likely to “aggravate or extend the
1014
dispute before the Court or make it more difficult to resolve” has been
committed. In this respect, it is highly significant that, in its long c omplaint about
1010Letter from H.E. Mr. Jorge Urbina-Ortega, co-Agent of Costa Rica, to the Registrar of the ICJ,
Ref: ECRPB-025-12, 3 July 2012 (NCM, Vol. III, Annex 66).
1011I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
(Costa Rica v. Nicaragua), Request for the indication of provisional measures , para. 86.
1012CRM, p. 289, para. 6.40.
1013
1014See paras. 7.11-7.33.
I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
(Costa Rica v. Nicaragua), Request for the indication of provisional measures , para. 86.
400 1010
submitted on 3 July 2012. As the Court can see, nothing in this report indicates
that this visit was blocked.
(b) The dispute has not been aggravated, extended or made
more difficult to resolve
7.40 The third provisional measure reads as follows:
“Each Party shall refrain from any action which might aggravate or
extend th1011spute before the Court or make it more difficult to
resolve”
7.41 According to Costa Rica:
“By sending members of the ‘Sandinista Youth’ to stay in the relevant area of the
provisional measures, by accomplishing different tasks in this area and by
preventing the Joint Environmental Mission to fulfill its role, Nicaragua
1012
aggravated the dispute.”
7.42 As demonstrated above, 1013the conduct of the members of the
Guardabarranco Environmental Movement cannot be attributed to Nicaragua.
7.43 However, even if the Court were to decide that acts of the members
of the “Sandinista [Guardabarranco Environmental Movement] Youth” are
attributable to Nicaragua ( quod non), no action likely to “aggravate or extend the
1014
dispute before the Court or make it more difficult to resolve” has been
committed. In this respect, it is highly significant that, in its long c omplaint about
1010Letter from H.E. Mr. Jorge Urbina-Ortega, co-Agent of Costa Rica, to the Registrar of the ICJ,
Ref: ECRPB-025-12, 3 July 2012 (NCM, Vol. III, Annex 66).
1011I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
(Costa Rica v. Nicaragua), Request for the indication of provisional measures , para. 86.
1012CRM, p. 289, para. 6.40.
1013
1014See paras. 7.11-7.33.
I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
(Costa Rica v. Nicaragua), Request for the indication of provisional measures , para. 86. that, as a result of the rains, the slopes of this artificial channel have
already began to fall on the channel and vegetation has started to grow.
They also mentioned interesting facts that they have already seen fish
along the the channel, [...] to the extent that no intervention takes place, the
wetland tends to recover quickly. This tells us that we would obviously like
a strict recommendation of no interference of any kind and the possibility
of a permanent monitoring in the area because changes can be seen as a
1018
result of the rains and climate change” .
7.46 While, as shown above, no violation of the 2011 Order can be
1019
attributed to Nicaragua, it will be shown in Chapter 9 below, that, on the
contrary, Costa Rica has violated the Order in several respects. These breaches
warrant the counter-claims requested by Nicaragua.
B. THE ALLEGED VIOLATION OF THE INTERNATIONAL
COURT OF JUSTICE’S JUDGMENT OF 13 JULY 2009
7.47 Apart from the Court’s order of 8 March 2011, Costa Rica also
accuses Nicaragua of having vio lated the Court’s Judgment of 13 July 2009
rendered in the case concerning the Dispute regarding Navigational and Related
Rights. 1020
7.48 Costa Rica’s allegations concern three minor incidents relating to
- an interrupted trip of two Costa Rican journalists on
1021
22 October 2010;
- an alleged refusal by Nicaraguan soldiers to authorize a Costa
Rican teacher to navigate on the San Juan River to reach his
school; 1022and
1018Ibid.
1019See paras. 9.46-9.63.
1020I.C.J., Judgment, 13 July 2009, Dispute regarding Navigational and Related Rights (Costa
1021 v. Nicaragua), I.C.J. Reports 2009, p. 213.
1022CRM, pp. 290-291, paras. 6.55-6.57.
CRM, p. 292, para. 6.58.
402 that, as a result of the rains, the slopes of this artificial channel have
already began to fall on the channel and vegetation has started to grow.
They also mentioned interesting facts that they have already seen fish
along the the channel, [...] to the extent that no intervention takes place, the
wetland tends to recover quickly. This tells us that we would obviously like
a strict recommendation of no interference of any kind and the possibility
of a permanent monitoring in the area because changes can be seen as a
1018
result of the rains and climate change” .
7.46 While, as shown above, no violation of the 2011 Order can be
1019
attributed to Nicaragua, it will be shown in Chapter 9 below, that, on the
contrary, Costa Rica has violated the Order in several respects. These breaches
warrant the counter-claims requested by Nicaragua.
B. THE ALLEGED VIOLATION OF THE INTERNATIONAL
COURT OF JUSTICE’S JUDGMENT OF 13 JULY 2009
7.47 Apart from the Court’s order of 8 March 2011, Costa Rica also
accuses Nicaragua of having vio lated the Court’s Judgment of 13 July 2009
rendered in the case concerning the Dispute regarding Navigational and Related
Rights. 1020
7.48 Costa Rica’s allegations concern three minor incidents relating to
- an interrupted trip of two Costa Rican journalists on
1021
22 October 2010;
- an alleged refusal by Nicaraguan soldiers to authorize a Costa
Rican teacher to navigate on the San Juan River to reach his
school; 1022and
1018Ibid.
1019See paras. 9.46-9.63.
1020I.C.J., Judgment, 13 July 2009, Dispute regarding Navigational and Related Rights (Costa
1021 v. Nicaragua), I.C.J. Reports 2009, p. 213.
1022CRM, pp. 290-291, paras. 6.55-6.57.
CRM, p. 292, para. 6.58. navigating the San Juan for the purposes of meeting basic requirements of
everyday life, such as allowing children to travel to school.” 1026
“[T]he Court is required inter aliato satisfy itself that the claims of the Applicant
are well founded in fact.” 102. Clearly this Costa Rican allegation is so elusive and
vague that it does not meet any standard of evidence valid before the Court (or
any international or domestic tribunal).
7.52 For its part, navigation for journalistic purposes clearly does not
enter into the category of navigation for the purpose of “meeting the essential
needs of everyday life”. The alleged incident concerning the two journalists 102is
then by no means related to any right of navigation belonging to Costa Rica. It
should also be noted that on the precise day – 22 October 2010 – when these
journalists were attempting to navigate towards the mouth of the San Juan River,
dozens of armed personnel of Costa Rica had been dispatched by air to the area in
dispute. This news was provocatively aired in the Costa Rican media and was
reported around the world. 1029Apart from a general lack of any right to navigate
the river, these journalists were attempting to do so in a very delicate and
unpredictable environment.
1026CRM, p. 292, para. 6.59.
1027I.C.J., Judgment, 24 May 1980, United States Diplomatic and Consular Staff in Tehran, I.C.J.
Reports 1980, p. 9, para. 11. See also I.C.J., Judgment, 9 April 1949, Corfu Channel case , I.C.J.
Reports 1949, p. 18; I.C.J., Judgment, 27 June 1986, Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1986, pp. 24-25, paras.
28-29.
1028Nicaragua only mentions in passing the contradictions and ambiguities in the affidavits
concerning this incident joined as annexes 27 and 28 to the CRM (vol. II). Similarly, it is troubling
that the journalists in question have not published anything about their alleged misadventure.
1029See para. 6.18 above; See also Ticotimes.net, Costa Rican police forces sent to Nicaraguan
borde, 22 October 2010 (NCM, Vol. III, Annex 92) (1); see also Complete Nicaraguan White
Book, San Juan de Nicaragua River, The Truths That Cos ta Rica Hides, 26 November 2010, p.28 -
30 (NCM, Vol. II, Annex 26).
404 navigating the San Juan for the purposes of meeting basic requirements of
everyday life, such as allowing children to travel to school.” 1026
“[T]he Court is required inter aliato satisfy itself that the claims of the Applicant
are well founded in fact.” 1027. Clearly this Costa Rican allegation is so elusive and
vague that it does not meet any standard of evidence valid before the Court (or
any international or domestic tribunal).
7.52 For its part, navigation for journalistic purposes clearly does not
enter into the category of navigation for the purpose of “meeting the essential
needs of everyday life”. The alleged incident concerning the two journalists 1028is
then by no means related to any right of navigation belonging to Costa Rica. It
should also be noted that on the precise day – 22 October 2010 – when these
journalists were attempting to navigate towards the mouth of the San Juan River,
dozens of armed personnel of Costa Rica had been dispatched by air to the area in
dispute. This news was provocatively aired in the Costa Rican media and was
reported around the world. 1029Apart from a general lack of any right to navigate
the river, these journalists were attempting to do so in a very delicate and
unpredictable environment.
1026CRM, p. 292, para. 6.59.
1027I.C.J., Judgment, 24 May 1980, United States Diplomatic and Consular Staff in Tehran, I.C.J.
Reports 1980, p. 9, para. 11. See also I.C.J., Judgment, 9 April 1949, Corfu Channel case , I.C.J.
Reports 1949, p. 18; I.C.J., Judgment, 27 June 1986, Militaryand Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1986, pp. 24-25, paras.
28-29.
1028Nicaragua only mentions in passing the contradictions and ambiguities in the affidavits
concerning this incident joined as annexes 27 and 28 to the CRM (vol. II). Similarly, it is troubling
that the journalists in question have not published anything about their alleged misadventure.
1029See para. 6.18 above; See also Ticotimes.net, Costa Rican police forces sent to Nicaraguan
borde, 22 October 2010 (NCM, Vol. III, Annex 92) (1); see also Complete Nicaraguan White
Book, San Juan de Nicaragua River, The Truths That Cos ta Rica Hides, 26 November 2010, p.28 -
30 (NCM, Vol. II, Annex 26). previously questioned those rights in the case concerning the Navigational and
Related Rights (Costa Rica v. Nicaragua) , the Court noted “that Costa Rica, in
support of its claim of unlawful action, advances points of fact about
unreasonableness by referring to the allegedly disproportionate impact of the
regulations (for navigation). The Court recalls that in terms of well -established
general principle it is for Costa Rica to establish those points” 103. The Court’s
holding applies with equal force here, and as may be appreciated from the
foregoing paragraphs, Costa Rica falls far short of establishing its unfounded
claims.
1033
I.C.J., Judgment, 13 July 2009Dispute regarding Navigational and Related Rights (Costa
Rica v. Nicaragua), I.C.J. Reports 2009, p. 253, p. 10See also I.C.J., Judgment, 3 February
2009, Maritime Delimitation in the Black Sea (Romania v. Ukraine), I.C.J. Reports 2009, p. 86,
para. 68, I.C.J., Judgment, 26 February 2007, Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J.
Reports 2007, p. 128, para. 104, I.C.J., Judgment, 26 November 1984, Military and Paramilitary
Activities in and against Nicaragua (Nicaragua vUnited States of America Jurisdiction and
Admissibility, I.C.J. Reports 1984, p. 437, para. 101.
406previously questioned those rights in the case concerning the Navigational and
Related Rights (Costa Rica v. Nicaragua) , the Court noted “that Costa Rica, in
support of its claim of unlawful action, advances points of fact about
unreasonableness by referring to the allegedly disproportionate impact of the
regulations (for navigation). The Court recalls that in terms of well -established
general principle it is for Costa Rica to establish those points” 103. The Court’s
holding applies with equal force here, and as may be appreciated from the
foregoing paragraphs, Costa Rica falls far short of establishing its unfounded
claims.
1033
I.C.J., Judgment, 13 July 2009,Dispute regarding Navigational and Related Rights (Costa
Rica v. Nicaragua), I.C.J. Reports 2009, p. 253, p. 10See also I.C.J., Judgment, 3 February
2009, Maritime Delimitation in the Black Sea (Romania v. Ukraine), I.C.J. Reports 2009, p. 86,
para. 68, I.C.J., Judgment, 26 February 2007, Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J.
Reports 2007, p. 128, para. 104, I.C.J., Judgment, 26 November 1984, Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v.United States of America Jurisdiction and
Admissibility, I.C.J. Reports 1984, p. 437, para. 101. 8.4 As a matter of principle, Nicaragua accepts that the Co urt is
competent to make a declaratory judgment. It itself requests such a declaration by
1035
way of its counter -claims. It, of course, does not agree on the content of the
declaration – or, more accurately, declarations – requested by Costa Rica.
8.5 Costa Rica first complains about the so- called “invasion and
occupation of Costa Rican territory” by Nicaragua, which would constitute “a
breach of the territorial integrity of Costa Rica and of Article 9 of the Treaty of
1036
Limits”, a claim reflected in paragraphs 1 (a), (b) and (c) of the Costa Rican
Submissions, which add, for good measure, an allegation of breach of “the
prohibition of use of force under Article 2(4) of the UN Charter and Articles 1,
19, 21 and 29 of the Charter of the Organization of American Stat es”. 1037
Interestingly, these claims appear at the very end of the Memorial without any
serious legal or factual justification; thus, nowhere before in the Memorial are
Articles 1, 19 or 29 mentioned while Costa Rica asks the Court to declare that
they have been violated.
8.6 Moreover, the Court finds itself in a situation similar to that
prevailing in the case concerning the Land and Maritime Dispute between
Cameroon and Nigeria, in which it refused “to ascertain whether and to what
extent Nigeria’s responsibility to Cameroon has been engaged as a result of that
1035See Chapter 9 below.
1036CRM, pp. 298-299, para. 7.4.
1037CRM, p. 303.
408 8.4 As a matter of principle, Nicaragua accepts that the Co urt is
competent to make a declaratory judgment. It itself requests such a declaration by
1035
way of its counter -claims. It, of course, does not agree on the content of the
declaration – or, more accurately, declarations – requested by Costa Rica.
8.5 Costa Rica first complains about the so- called “invasion and
occupation of Costa Rican territory” by Nicaragua, which would constitute “a
breach of the territorial integrity of Costa Rica and of Article 9 of the Treaty of
1036
Limits”, a claim reflected in paragraphs 1 (a), (b) and (c) of the Costa Rican
Submissions, which add, for good measure, an allegation of breach of “the
prohibition of use of force under Article 2(4) of the UN Charter and Articles 1,
19, 21 and 29 of the Charter of the Organization of American Stat es”. 1037
Interestingly, these claims appear at the very end of the Memorial without any
serious legal or factual justification; thus, nowhere before in the Memorial are
Articles 1, 19 or 29 mentioned while Costa Rica asks the Court to declare that
they have been violated.
8.6 Moreover, the Court finds itself in a situation similar to that
prevailing in the case concerning the Land and Maritime Dispute between
Cameroon and Nigeria, in which it refused “to ascertain whether and to what
extent Nigeria’s responsibility to Cameroon has been engaged as a result of that
1035See Chapter 9 below.
1036CRM, pp. 298-299, para. 7.4.
1037CRM, p. 303. 1041
which is due only if an injury has occurred. This is not the case: Costa Rica
has not proven – nor even tried to prove – otherwise; and it is rather baffling to
note that the Court has been “requested to determine, in a separate phase the
reparation and satisfaction to be made by Nicaragua”: (i) again, satisfaction is
but a form of reparation; (ii) by definition, satisfaction is immaterial and,
contrary to compensation, does not suppose any special kind of further evidence;
and (iii) there is therefore not the shadow of a justificatio n for postponing a
decision on satisfaction to “a separate phase” of the proceedings. These
uncertainties in the position of Costa Rica bear witness to the artificial character
of its claims.
8.10 Another curiosity of the remedies requested by Costa Rica is that it tries
to benefit from the present dispute by submitting to the Court a request for the
implementation of its 2009 Judgment in the case concerning Navigational and
Related Rights . 1042 As established in Chapter 7, the incident concerning the
journalists does not fall within the scope of that Judgment and the other cases
cited are not documented.
8.11 Since the Court’s Judgment in the LaGrand case, 1043it has become usual
for States appearing before the Court to request reparation for alleged non-
1041See Article 34 of the ILC Articles on the Responsibility of the State for an Internationally
Wrongful Act (“Forms of Reparation”).
1042See CRM, pp. 299-300, para. 7.7; see also pp. 290-294, paras. 6.54-6.60.
1043I.C.J., Judgment, 27 June 2001, LaG rand (Germany v. United States of America), I.C.J.
Reports 2001, p. 466; see in particular , pp. 501 -506, paras. 98-109 in respect to the binding
character of provisional measures; and pp. 510 -513, paras. 121- 124 and p. 516, para. 128(6)
concerning the guarantee of non-repetition.
410 1041
which is due only if an injury has occurred. This is not the case: Costa Rica
has not proven – nor even tried to prove – otherwise; and it is rather baffling to
note that the Court has been “requested to determine, in a separate phase the
reparation and satisfaction to be made by Nicaragua”: (i) again, satisfaction is
but a form of reparation; (ii) by definition, satisfaction is immaterial and,
contrary to compensation, does not suppose any special kind of further evidence;
and (iii) there is therefore not the shadow of a justificatio n for postponing a
decision on satisfaction to “a separate phase” of the proceedings. These
uncertainties in the position of Costa Rica bear witness to the artificial character
of its claims.
8.10 Another curiosity of the remedies requested by Costa Rica is that it tries
to benefit from the present dispute by submitting to the Court a request for the
implementation of its 2009 Judgment in the case concerning Navigational and
Related Rights . 1042 As established in Chapter 7, the incident concerning the
journalists does not fall within the scope of that Judgment and the other cases
cited are not documented.
8.11 Since the Court’s Judgment in the LaGrand case, 1043it has become usual
for States appearing before the Court to request reparation for alleged non-
1041See Article 34 of the ILC Articles on the Responsibility of the State for an Internationally
Wrongful Act (“Forms of Reparation”).
1042See CRM, pp. 299-300, para. 7.7; see also pp. 290-294, paras. 6.54-6.60.
1043I.C.J., Judgment, 27 June 2001, LaG rand (Germany v. United States of America), I.C.J.
Reports 2001, p. 466; see in particular , pp. 501 -506, paras. 98-109 in respect to the binding
character of provisional measures; and pp. 510 -513, paras. 121- 124 and p. 516, para. 128(6)
concerning the guarantee of non-repetition. 8.14 In two recent judgments, including its 2009 judgment in the case
concerning Navigational and Related Rights, the Court made clear that it would
order a State to give guarantee of non-repetition only in very exceptional cases:
As the Court has stated in previous cases (see, in particular, Dispute
regarding Navigati onal and Related Rights (Costa Rica v.
Nicaragua), Judgment, I.C.J. Reports 2009, p. 267, para. 150 [and see
the jurisprudence quoted there]), as a general rule, there is no reason
to suppose that a State whose act or conduct has been declared
wrongful by the Court will repeat that act or conduct in the future,
since its good faith must be presumed. Accordingly, while the Court
may order the State responsible for an internationally wrongful act to
offer assurances of non- repetition to the injured State, or to take
specific measures to ensure that the wrongful act is not repeated, it
may only do so when there are special circumstances which justify
this, which the Court must assess on a case-by-case basis. 1049
8.15 No special circumstance can be invoked by Costa Rica in the
present case.
8.16 As the Court has noted in the Northern Cameroons case: “There
are inherent limitations on the exercise of the judicial function which the Court, as
a court of justice, can never ignore.” 1050 One of the most important of those
limitations is the one which prompts the Court to refrain from issuing orders to
1051
sovereign States. Similarly, the European Court of Human Rights concluded
very clearly that: “It is not the Court’s function to indicate which measures Ireland
1049I.C.J., Judgment, 3 February 2012, Immunities of the State (Germany v. Italy: Greece
intervening), para. 138.
1050I.C.J., Judgment, 2 December 1963, Northern Cameroons (Cameroon v. United Kingdom) ,
Preliminary Objections, I.C.J. Reports 1963, p. 29.
1051See, e.g., P.C.I.J., Judgment No. 5, 26 March 1925, Mavrommatis Jerusalem Concessions,
Series A, No. 5, p. 50; or .I.C.J., Judgments, 27 June 2001, LaGrand (Germany v. United States of
America), I.C.J. Reports 2001, p. 516, para. 128 (7); 14 February 2002, Arre st Warrant of 11 April
2000 (Democratic Republic of the Congo v. Belgium) , I.C.J. Reports 2002 , p. 32, para. 76;
31 March 2004, Avena and Other Mexican Nationals (Mexico v. United States of America) , I.C.J.
Reports 2004, p. 62, para. 31.
412 8.14 In two recent judgments, including its 2009 judgment in the case
concerning Navigational and Related Rights, the Court made clear that it would
order a State to give guarantee of non-repetition only in very exceptional cases:
As the Court has stated in previous cases (see, in particular, Dispute
regarding Navigati onal and Related Rights (Costa Rica v.
Nicaragua), Judgment, I.C.J. Reports 2009, p. 267, para. 150 [and see
the jurisprudence quoted there]), as a general rule, there is no reason
to suppose that a State whose act or conduct has been declared
wrongful by the Court will repeat that act or conduct in the future,
since its good faith must be presumed. Accordingly, while the Court
may order the State responsible for an internationally wrongful act to
offer assurances of non- repetition to the injured State, or to take
specific measures to ensure that the wrongful act is not repeated, it
may only do so when there are special circumstances which justify
this, which the Court must assess on a case-by-case basis. 1049
8.15 No special circumstance can be invoked by Costa Rica in the
present case.
8.16 As the Court has noted in the Northern Cameroons case: “There
are inherent limitations on the exercise of the judicial function which the Court, as
a court of justice, can never ignore.” 1050 One of the most important of those
limitations is the one which prompts the Court to refrain from issuing orders to
1051
sovereign States. Similarly, the European Court of Human Rights concluded
very clearly that: “It is not the Court’s function to indicate which measures Ireland
1049I.C.J., Judgment, 3 February 2012, Immunities of the State (Germany v. Italy: Greece
intervening), para. 138.
1050I.C.J., Judgment, 2 December 1963, Northern Cameroons (Cameroon v. United Kingdom) ,
Preliminary Objections, I.C.J. Reports 1963, p. 29.
1051See, e.g., P.C.I.J., Judgment No. 5, 26 March 1925, Mavrommatis Jerusalem Concessions,
Series A, No. 5, p. 50; or .I.C.J., Judgments, 27 June 2001, LaGrand (Germany v. United States of
America), I.C.J. Reports 2001, p. 516, para. 128 (7); 14 February 2002, Arre st Warrant of 11 April
2000 (Democratic Republic of the Congo v. Belgium) , I.C.J. Reports 2002 , p. 32, para. 76;
31 March 2004, Avena and Other Mexican Nationals (Mexico v. United States of America) , I.C.J.
Reports 2004, p. 62, para. 31.414 CHAPTER 9
COUNTER-CLAIMS
9.1 If certain facts or situations relating to a case before the Court or
relating to activities of the Applicant State have a close connection with the
subject-matter of the Application, it remains open to the Respondent State under
the Court’s Statute and Rules to present its own arguments to the Court regarding
those activities either by way of de fence in a Counter -Memorial or by way of a
1053
counter-claim filed under Article 80 of the Rules of Court. Article 80 reads as
follows:
1. The Court may entertain a counter -claim only if it comes within
the jurisdiction of the Court and is directly connected wit h the
subject-matter of the claim of the other party.
2. A counter-claim shall be made in the Counter -Memorial and shall
appear as part of the submissions contained therein. The right of
the other party to present its views in writing on the counter -claim,
in an additional pleading, shall be preserved, irrespective of any
decision of the Court, in accordance with Article 45, paragraph 2,
of these Rules, concerning the filing of further written pleadings.
3. Where an objection is raised concerning the applicati on of
paragraph 1 or whenever the Court deems necessary, the Court
shall take its decision thereon after hearing the parties.
1053I.C.J., Order, 15 December 1979, United States Diplomatic und Consular Staff in Tehran,
Provisional Measures, I.C.J. Reports 1979, p. 15, p24. See also I.C.J., Order, 17 December
1997, Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Counter-claims, I.C.J. Reports 1997, p. 257, para. 28.
415 9.2 In the exercise of its right, Nicaragua submits four counter -claims
in the present proceedings. All of them are directly connect ed with the subject -
matter of the claims filed by the Applicant State.
9.3 The substance of Nicaragua’s counter-claims has been dealt with in
greater detail in Chapters 4, 6 and 7. This Chapter therefore focuses upon their
admissibility and the competence of the Court. Section A establishes the
jurisdiction of the Court to entertain Nicaragua’s counter -claims. Section B
demonstrates that Nicaragua’s counter-claims are admissible.
A. THE COURT HAS JURISDICTION TO DECIDE UPON
NICARAGUA’S COUNTER-CLAIMS
9.4 The Court’s jurisdiction over Costa Rica’s claims and Nicaragua’s
counter-claims is based on Article XXXI of the American Treaty on Pacific
Settlement, signed in Bogotá on 30 April 1948 (the Pact of Bogotá). This Article
reads as follows:
In conformity with Article 36, paragraph 2, of the Statute of the
International Court of Justice, the High Contracting Parties declare
that they recognize, in relation to any other American State, the
jurisdiction of the Court as compulsory ipso facto, without the
necessity of any special agreement so long as the present Treaty is in
force, in all disputes of a juridical nature that arise among them
concerning:
a) The interpretation of a treaty;
b) Any question of international law;
c) The existence of any fact which, if established, would constitute
the breach of an international obligation;
d) The nature or extent of the r1054ation to be made for the breach
of an international obligation.
105American Treaty on Pacific Settlement, Bogotá, 30 April 1948, 30 UNTS 84.
416 9.2 In the exercise of its right, Nicaragua submits four counter -claims
in the present proceedings. All of them are directly connect ed with the subject -
matter of the claims filed by the Applicant State.
9.3 The substance of Nicaragua’s counter-claims has been dealt with in
greater detail in Chapters 4, 6 and 7. This Chapter therefore focuses upon their
admissibility and the competence of the Court. Section A establishes the
jurisdiction of the Court to entertain Nicaragua’s counter -claims. Section B
demonstrates that Nicaragua’s counter-claims are admissible.
A. THE COURT HAS JURISDICTION TO DECIDE UPON
NICARAGUA’S COUNTER-CLAIMS
9.4 The Court’s jurisdiction over Costa Rica’s claims and Nicaragua’s
counter-claims is based on Article XXXI of the American Treaty on Pacific
Settlement, signed in Bogotá on 30 April 1948 (the Pact of Bogotá). This Article
reads as follows:
In conformity with Article 36, paragraph 2, of the Statute of the
International Court of Justice, the High Contracting Parties declare
that they recognize, in relation to any other American State, the
jurisdiction of the Court as compulsory ipso facto, without the
necessity of any special agreement so long as the present Treaty is in
force, in all disputes of a juridical nature that arise among them
concerning:
a) The interpretation of a treaty;
b) Any question of international law;
c) The existence of any fact which, if established, would constitute
the breach of an international obligation;
d) The nature or extent of the r1054ation to be made for the breach
of an international obligation.
105American Treaty on Pacific Settlement, Bogotá, 30 April 1948, 30 UNTS 84. its right bank. 1056 The construction of this road was authorized by Emergency
Decree No. 36440 -MP published in the Official Daily Gazette in San José on
Monday 7 March 2011. The road, which is called both the “Juan Rafael Mora
Porras” highway and “Road 1856” by Costa Rica, is ultimately intended to stretch
“approximately 160 km from the Delta, where the Colorado River branches off
1057
from the San Juan River, to the town of Los Chiles.” According to the Costa
Rican Minister of Public Works and Transportation, Mr. Francisco Jimi nez, “the
road will be 14 meters wide and have an added 50 meters of right of way (derecho
de vía) and the normal drainage system employed in all Costa Rican national
1058
roads.”
9.9 Costa Rica seeks to justify this road -building project in the
Emergency Decree o f 7 March 2011 which is presented as an answer to the
alleged “Nicaraguan Army armed invasion of a portion of Costa Rican
1059
territory.” The purported objectives are “to expedite national defence actions,
as well as facilitate movements of community members in the northern border
area.” 1060
1056Application Instituting Proceedings , 21 December 2011, Construction of a Road in Costa Rica
1057g the San Juan River (Nicaragua v. Costa Rica), para. 5.
Costa Rican Environmental Management Plan for the Rafael Mora Porras Road, April 2012, p.
5 (NCM, Vol. IV, Annex 116).
1058Application Instituting Proceedings , 21 December 2011, Construction of a Road in Costa Rica
along the San Juan River (Nicaragua v. Costa Rica), para. 14, referring to La Nación article of 18
October 2011.
1059Costa Rican Environmental Management Plan for the Rafael Mora Porras Road, April 2012, p.
1060CM, Vol. IV, Annex 116).
Ibid.
418its right bank. 1056 The construction of this road was authorized by Emergency
Decree No. 36440 -MP published in the Official Daily Gazette in San José on
Monday 7 March 2011. The road, which is called both the “Juan Rafael Mora
Porras” highway and “Road 1856” by Costa Rica, is ultimately intended to stretch
“approximately 160 km from the Delta, where the Colorado River branches off
1057
from the San Juan River, to the town of Los Chiles.” According to the Costa
Rican Minister of Public Works and Transportation, Mr. Francisco Jimi nez, “the
road will be 14 meters wide and have an added 50 meters of right of way (derecho
de vía) and the normal drainage system employed in all Costa Rican national
1058
roads.”
9.9 Costa Rica seeks to justify this road -building project in the
Emergency Decree o f 7 March 2011 which is presented as an answer to the
alleged “Nicaraguan Army armed invasion of a portion of Costa Rican
1059
territory.” The purported objectives are “to expedite national defence actions,
as well as facilitate movements of community members in the northern border
area.” 1060
1056Application Instituting Proceedings , 21 December 2011, Construction of a Road in Costa Rica
1057g the San Juan River (Nicaragua v. Costa Rica), para. 5.
Costa Rican Environmental Management Plan for the Rafael Mora Porras Road, April 2012, p.
5 (NCM, Vol. IV, Annex 116).
1058Application Instituting Proceedings , 21 December 2011, Construction of a Road in Costa Rica
along the San Juan River (Nicaragua v. Costa Rica), para. 14, referring to La Nación article of 18
October 2011.
1059Costa Rican Environmental Management Plan for the Rafael Mora Porras Road, April 2012, p.
1060CM, Vol. IV, Annex 116).
Ibid. President of the Environment Court, Ms. Yamileth Mata, stated that she had never
1064
been informed of the construction of the highway.
9.12 The construction of this road, which Costa Rica acknowledges was
undertaken with no blueprints whatsoever, let alone an environmental impact
assessment, 106“caused for 160 km alongside the river, including more than 100
critical locations, 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.”
(b) Lack of Blueprints and Environmental Impact
Assessment
9.13 Had Costa Rica followed the rules applicable to the protection of
the environment, the harm caused by the construction of the road might have been
prevented or mitigated, but Costa Rica undertook the construction with no
blueprints whatsoever, 1066let alone an environmental impact assessment. 1067 Such
1064
1065Ibid.
El Nuevo Diario, Nicaragua, “Outrage everywhere over San Juan River parallel highway, No
Studies Done for Costa Rican Highway”, 15 December 2011 (NCM, Vol. III, Annex 100.).
1066See Press release from CONAVI to the public, 25 May 2012 (NCM, Vol. III, Annex 105) . See
also El Pais, Costa Rica, “Faced with Crit icism, Conavi Confirms to Have Done Work on 332
Kilometers of Roads around Route 1856”, 26 May 2012 (NCM, Vol. III, Annex 106.) and Diario
Extra, “Government acknowledges mistakes in the construction of the trail”, 30 May 2012 (NCM,
1067 III, Annex 109), available at http://www.diarioextra.com/2012/mayo/30/nacionales13.php
El Nuevo Diario, Nicaragua, “Outrage everywhere over San Juan River parallel highway, No
Studies Done for Costa Rican Highway” , 15 December 2011 (NCM, Vol. III, Annex 100) . See
also Costa Rican Decision No. 0632 -2011(NCM, Vol II Annex 35 (2)) ; University Seminar,
“Environmental damage feared due to construction of highway parallel to Río San Juan”,
1 November 2011 (NCM, Vol. III, Annex 98) , La Nación, Costa Rica “Government avoided
applying environmental control in border trail, 24 May 2012 (NCM, Vol. III, Annex 104) and
Diario Extra, “Government acknowledges mistakes in the construction of the trail”, 30 May 2012
420President of the Environment Court, Ms. Yamileth Mata, stated that she had never
1064
been informed of the construction of the highway.
9.12 The construction of this road, which Costa Rica acknowledges was
undertaken with no blueprints whatsoever, let alone an environmental impact
assessment, 1065“caused for 160 km alongside the river, including more than 100
critical locations, 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.”
(b) Lack of Blueprints and Environmental Impact
Assessment
9.13 Had Costa Rica followed the rules applicable to the protection of
the environment, the harm caused by the construction of the road might have been
prevented or mitigated, but Costa Rica undertook the construction with no
blueprints whatsoever, 1066let alone an environmental impact assessment. 1067 Such
1064
1065Ibid.
El Nuevo Diario, Nicaragua, “Outrage everywhere over San Juan River parallel highway, No
Studies Done for Costa Rican Highway”, 15 December 2011 (NCM, Vol. III, Annex 100.).
1066See Press release from CONAVI to the public, 25 May 2012 (NCM, Vol. III, Annex 105) . See
also El Pais, Costa Rica, “Faced with Crit icism, Conavi Confirms to Have Done Work on 332
Kilometers of Roads around Route 1856”, 26 May 2012 (NCM, Vol. III, Annex 106.) and Diario
Extra, “Government acknowledges mistakes in the construction of the trail”, 30 May 2012 (NCM,
1067 III, Annex 109), available at http://www.diarioextra.com/2012/mayo/30/nacionales13.php
El Nuevo Diario, Nicaragua, “Outrage everywhere over San Juan River parallel highway, No
Studies Done for Costa Rican Highway” , 15 December 2011 (NCM, Vol. III, Annex 100) . See
also Costa Rican Decision No. 0632 -2011(NCM, Vol II Annex 35 (2)) ; University Seminar,
“Environmental damage feared due to construction of highway parallel to Río San Juan”,
1 November 2011 (NCM, Vol. III, Annex 98) , La Nación, Costa Rica “Government avoided
applying environmental control in border trail, 24 May 2012 (NCM, Vol. III, Annex 104) and
Diario Extra, “Government acknowledges mistakes in the construction of the trail”, 30 May 2012 content of the environmental impact assessment required for each case” 1070is by
no means a license to evade the international obligation that an adequate EIA
must be conducted. In the Pulp Mills case, the Court recognized that certain
1071
minimum requirements must be met, including the prior preparation of an EIA.
Neither is the content of the EIA entirely a matter for the State to decide in its sole
discretion, as the EIA must take into account the “nature and magnitude of the
proposed development and its likely adverse impact on the environment.” 1072
9.16 Nevertheless, Costa Rica has publicly stated that its domestic law
allowed it to dispense with an EIA for its massive road construction project due to
supposedly emergency security considerations stemming from a purported “act of
aggression” by Nicaragua.1073 For instance, Costa Rica’s Foreign Minister, Mr.
Enrique Castillo, stated in December 2011 that Costa Rica is “carrying out [the
road construction project] under a decree that exempts [it] from Environmental
1074
Impact Assessment,” and that Costa Rica therefore “owe[s] no explanations”.
1070I.C.J., Judgment, 20 April 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay),
I.C.J. Reports 2010, p. 83-84, para. 205.
1071
1072Ibid.
I.C.J., Judgment, 20 April 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay),
I.C.J. Reports 2010, p. 83-84, para. 205.
1073Official Daily Gazette No. 46, Decree No. 36440- MP,Year CXXXIII. La Uruca, San José,
Costa Rica Monday, 7 Ma rch 2011 (NCM, Vol III. , Annex 35) (1); University Seminar,
“Environmental Damage Feared due to Construction of Highway Parallel to Río San Juan”,
1074vember 2011 (NCM, Vol. III, Annex 98).
El Nuevo Diario, Nicaragua, “Outrage Everywhere over San Juan River Parallel Highway: No
Studies Done for Costa Rican Highway,” 15 December 2011(NCM, Vol. III, Annex 100.) . See
also Diplomatic note from the Minister of Foreign Affairs and Worship of Costa Rica to the
Minister of Foreign Affairs of Nicaragua, Ref: DVM-AM-286-11, 20 December 2011 (NCM, Vol.
III, Annex 74).
422content of the environmental impact assessment required for each case” 1070is by
no means a license to evade the international obligation that an adequate EIA
must be conducted. In the Pulp Mills case, the Court recognized that certain
1071
minimum requirements must be met, including the prior preparation of an EIA.
Neither is the content of the EIA entirely a matter for the State to decide in its sole
discretion, as the EIA must take into account the “nature and magnitude of the
proposed development and its likely adverse impact on the environment.” 1072
9.16 Nevertheless, Costa Rica has publicly stated that its domestic law
allowed it to dispense with an EIA for its massive road construction project due to
supposedly emergency security considerations stemming from a purported “act of
aggression” by Nicaragua.1073 For instance, Costa Rica’s Foreign Minister, Mr.
Enrique Castillo, stated in December 2011 that Costa Rica is “carrying out [the
road construction project] under a decree that exempts [it] from Environmental
1074
Impact Assessment,” and that Costa Rica therefore “owe[s] no explanations”.
1070I.C.J., Judgment, 20 April 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay),
I.C.J. Reports 2010, p. 83-84, para. 205.
1071
1072Ibid.
I.C.J., Judgment, 20 April 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay),
I.C.J. Reports 2010, p. 83-84, para. 205.
1073Official Daily Gazette No. 46, Decree No. 36440- MP,Year CXXXIII. La Uruca, San José,
Costa Rica Monday, 7 Ma rch 2011 (NCM, Vol III. , Annex 35) (1); University Seminar,
“Environmental Damage Feared due to Construction of Highway Parallel to Río San Juan”,
1074vember 2011 (NCM, Vol. III, Annex 98).
El Nuevo Diario, Nicaragua, “Outrage Everywhere over San Juan River Parallel Highway: No
Studies Done for Costa Rican Highway,” 15 December 2011(NCM, Vol. III, Annex 100.) . See
also Diplomatic note from the Minister of Foreign Affairs and Worship of Costa Rica to the
Minister of Foreign Affairs of Nicaragua, Ref: DVM-AM-286-11, 20 December 2011 (NCM, Vol.
III, Annex 74). THIRD: It is declared that, when it built the road in question, the
State of Costa Rica acted unilaterally, without consultation,
inappropriately and hastily, violating the bilateral and
multilateral international commitments validly entered into,
which cannot be ignored claiming internal rules.
FOURTH: It is declared that the State of Costa Rica began the
work…without the previous studies and analysis required under
the obligations imposed by Regional and International
Community Law, ignoring the collaboration, mutual
understanding and communication that should exist among the
States Parties of all those conventions in the field of
1078
environment and sustainable development.
9.19 Moreover, the absence of plans and environmental impact
assessment resulted in “increased costs, environmental problems, and a rapid
1079
deterioration of the project.”
(c) Lack of Consultation
9.20 As explained in Chapter 3, and as Costa Rica itself admits in its
Memorial, 108a State conducting activities likely to cause significant damage to a
1081
neighbouring state has an obligation to notify and consult that state. In the
present case, Costa Rica did not notify Ni caragua of the construction of “Road
1078 Excerpt of the "Judgment of Central American Court of Justice", available at
http://www.fonare.org/index.php?option=com_content&view=article&id=59:f…-
juicio-de-la-haya&catid=3:newsflash&Itemid=18, 3 July 2012, paras. 3- 4 (NCM, Vol.II Annex
23).
1079CFIA Report, p. 25 (NCM, Vol. IV, Annex 117).
1080
1081See CRM, pp. 200-201, paras. 5.55-5.56.
See 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, Prin ciple 19 and Article 8(1)
of Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, Yearbook of
the International Law Commission, 2001, Vol. II, Part Two, p. 159.
424 THIRD: It is declared that, when it built the road in question, the
State of Costa Rica acted unilaterally, without consultation,
inappropriately and hastily, violating the bilateral and
multilateral international commitments validly entered into,
which cannot be ignored claiming internal rules.
FOURTH: It is declared that the State of Costa Rica began the
work…without the previous studies and analysis required under
the obligations imposed by Regional and International
Community Law, ignoring the collaboration, mutual
understanding and communication that should exist among the
States Parties of all those conventions in the field of
1078
environment and sustainable development.
9.19 Moreover, the absence of plans and environmental impact
assessment resulted in “increased costs, environmental problems, and a rapid
1079
deterioration of the project.”
(c) Lack of Consultation
9.20 As explained in Chapter 3, and as Costa Rica itself admits in its
Memorial, 1080a State conducting activities likely to cause significant damage to a
1081
neighbouring state has an obligation to notify and consult that state. In the
present case, Costa Rica did not notify Ni caragua of the construction of “Road
1078 Excerpt of the "Judgment of Central American Court of Justice", available at
http://www.fonare.org/index.php?option=com_content&view=article&id=59:f…-
juicio-de-la-haya&catid=3:newsflash&Itemid=18, 3 July 2012, paras. 3-4 (NCM, Vol.II Annex
23).
1079CFIA Report, p. 25 (NCM, Vol. IV, Annex 117).
1080
1081See CRM, pp. 200-201, paras. 5.55-5.56.
See 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, Prin ciple 19 and Article 8(1)
of Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, Yearbook of
the International Law Commission, 2001, Vol. II, Part Two, p. 159. that your government is constructing in the right bank of the San Juan
of Nicaragua River.
The Government of Nicaragua considers that such expression is the
result of a wrong interpretation of the obligation of your distinguished
government to present to Nicaragua, prior to the commencement of
the road, the Environmental Impact Assessment and the
Environmental Management Plan, both of them being a fundamental
requisite to carry out a project of such a magnitude.
Trying to invert the logic in regard to the obligations of Costa Rica
implies not assuming the commitments with 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 29 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 conce rning 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:
1. Dumping of trees and soil along the route of the road into the river
flow, making more difficult and risking the navigation in its waters,
426that your government is constructing in the right bank of the San Juan
of Nicaragua River.
The Government of Nicaragua considers that such expression is the
result of a wrong interpretation of the obligation of your distinguished
government to present to Nicaragua, prior to the commencement of
the road, the Environmental Impact Assessment and the
Environmental Management Plan, both of them being a fundamental
requisite to carry out a project of such a magnitude.
Trying to invert the logic in regard to the obligations of Costa Rica
implies not assuming the commitments with 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 29 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 conce rning 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:
1. Dumping of trees and soil along the route of the road into the river 1084Note from the Minister of Foreign Affairs of Nicaragua, to the Minister of Foreign Affairs of
flow, making more difficult and risking the navigation in its waters, Costa Rica, Ref: MRE/DVS/VJW/0685/12/11, Managua, 10 December 2011
Annex 73). 9.24 On 13 December 2011, the President of Costa Rica, Ms. Laura
Chinchilla, declared that Costa Rica “issued an emergency decree due to national
necessity and it is on that basis that we have developed the projects” 1085and that
her country, therefore, has “no reason to offer explanations to the Government of
1086
Nicaragua.” President Chinchilla then made clear that Costa Ri ca is “not
taking even one step back.” 1087
(d) Damages Caused to Nicaraguan Territory and the
Environment
9.25 As explained in Chapter 3, Article VI of the 1858 Treaty
establishes that Nicaragua has sovereignty over the waters of the San Juan river,
the right bank of which constitutes the boundary between the two States. This
fact was reaffirmed by the Court in its 2009 Judgment. 1088 As the Court put it,
“[t]he 1858 Treaty of Limits completely defines the rules applicable to the section
of the San Juan River” relevant t o the present case. 108Apart from the right of
navigation with commercial objects, the 1858 Treaty confers no other right over
the San Juan River to Costa Rica – and certainly not the right to dump into the
1085El País , Costa Rica, “Chinchilla Defends Highway Criticized by Nicaragua, Rejects
Dialogue”, 14 December 2011 (Source: EFE / 13 December 2011). (NCM, Vol. III, Annex 99).
1086Ibid.
1087Ibid.
1088
I.C.J., Judgement, 13 July 2009, Dispute regarding Navigational and Related Rights (Costa
1089 v. Nicaragua), I.C.J. Reports 2009, p. 234, para. 37.
Ibid., p. 233, para. 36. See also para. 3.14- 3.20 above.
428 9.24 On 13 December 2011, the President of Costa Rica, Ms. Laura
Chinchilla, declared that Costa Rica “issued an emergency decree due to national
necessity and it is on that basis that we have developed the projects” 1085and that
her country, therefore, has “no reason to offer explanations to the Government of
1086
Nicaragua.” President Chinchilla then made clear that Costa Ri ca is “not
taking even one step back.” 1087
(d) Damages Caused to Nicaraguan Territory and the
Environment
9.25 As explained in Chapter 3, Article VI of the 1858 Treaty
establishes that Nicaragua has sovereignty over the waters of the San Juan river,
the right bank of which constitutes the boundary between the two States. This
fact was reaffirmed by the Court in its 2009 Judgment. 1088 As the Court put it,
“[t]he 1858 Treaty of Limits completely defines the rules applicable to the section
of the San Juan River” relevant t o the present case. 108Apart from the right of
navigation with commercial objects, the 1858 Treaty confers no other right over
the San Juan River to Costa Rica – and certainly not the right to dump into the
1085El País , Costa Rica, “Chinchilla Defends Highway Criticized by Nicaragua, Rejects
Dialogue”, 14 December 2011 (Source: EFE / 13 December 2011). (NCM, Vol. III, Annex 99).
1086Ibid.
1087Ibid.
1088
I.C.J., Judgement, 13 July 2009, Dispute regarding Navigational and Related Rights (Costa
1089 v. Nicaragua), I.C.J. Reports 2009, p. 234, para. 37.
Ibid., p. 233, para. 36. See also para. 3.14- 3.20 above. 1093
to the environment on the Nicaraguan territory In March 2012, two
nongovernmental organisations, the Nicaraguan F oundation for Sustainable
Development (FUNDENIC SOS) and National Recycling Forum (FONARE),
1094
conducted a study on environmental impacts of the construction of Road 1856.
9.29 Much harm has been observed, including:
• The dumping of trees, debris, and sediments in to the San Juan
1095
River, making navigation more difficult and more dangerous;
• The destruction of the vegetation and disturbance of fragile soils
along the right bank of the river, resulting in increased erosion and
1096
sedimentation in the River;
1093
Note from the Minister of Foreign Affairs of Nicaragua, to the Minister of Foreign Affairs of
Costa Rica, Ref: MRE/DVS/VJW/0685/12/11, Managua, 10 December, 2011 (NCM, Vol.III ,
Annex 73).
1094
El Nuevo Diario, Nicaragua, "Costa Rica affirms Central American Court is politicized in
favor of Nicaragua" (Source: EFE│7/1/2012) 7, January 2012. (NCM, Vol. III, Annex 101).
109Photographs of trees and soil along the route of the road, Source: Site visit on the 1st of
December, 2011. Note: This photograph was taken from the San Juan River. (NCM, Vol.IV,
1096x 138).
Photographs of fragile soil removal (NCM, Vol. IV, Annex 139); FUNDENIC SOS &
FONARE Technical Report, p. 22 (NCM, Vol. IV, Annex 115.).
430 1093
to the environment on the Nicaraguan territory In March 2012, two
nongovernmental organisations, the Nicaraguan F oundation for Sustainable
Development (FUNDENIC SOS) and National Recycling Forum (FONARE),
1094
conducted a study on environmental impacts of the construction of Road 1856.
9.29 Much harm has been observed, including:
• The dumping of trees, debris, and sediments in to the San Juan
1095
River, making navigation more difficult and more dangerous;
• The destruction of the vegetation and disturbance of fragile soils
along the right bank of the river, resulting in increased erosion and
1096
sedimentation in the River;
1093
Note from the Minister of Foreign Affairs of Nicaragua, to the Minister of Foreign Affairs of
Costa Rica, Ref: MRE/DVS/VJW/0685/12/11, Managua, 10 December, 2011 (NCM, Vol.III ,
Annex 73).
1094
El Nuevo Diario, Nicaragua, "Costa Rica affirms Central American Court is politicized in
favor of Nicaragua" (Source: EFE│7/1/2012) 7, January 2012. (NCM, Vol. III, Annex 101).
1095Photographs of trees and soil along the route of the road, Source: Site visit on the 1st of
December, 2011. Note: This photograph was taken from the San Juan River. (NCM, Vol.IV,
1096x 138).
Photographs of fragile soil removal (NCM, Vol. IV, Annex 139); FUNDENIC SOS &
FONARE Technical Report, p. 22 (NCM, Vol. IV, Annex 115.). • The decrease in or alteration of the aquatic life present in the River
due to the water cloudiness resulting from the sediments
1099
originating from the road construction activities;
• Effects on 1100ing in the river because of changes in the quality of
the water; and
• The destruction of the inherent scenic values and eco -tourism
potential of the river.101
1099Ibid., p. 25.
1100Ibid., p. 22.
1101Photographs of the destruction of the inher ent scenic values and eco -tourism potential of the
San Juan River (NCM, Vol. IV, Annex 142.)
432 • The decrease in or alteration of the aquatic life present in the River
due to the water cloudiness resulting from the sediments
1099
originating from the road construction activities;
• Effects on f1100ng in the river because of changes in the quality of
the water; and
• The destruction of the inherent scenic values and eco -tourism
potential of the river.101
1099Ibid., p. 25.
1100Ibid., p. 22.
1101Photographs of the destruction of the inher ent scenic values and eco -tourism potential of the
San Juan River (NCM, Vol. IV, Annex 142.) 1105
ecosystem, and that the road project poses high risk and environmental danger
by exposing the shared basin and common ecosystem to serious and unpredictable
risks.1106 Consequently, Costa Rica has violated various bilateral treaties such as
the 1858 Treaty of Limits, and multilateral international instruments in
constructing the road 1856, including but not limited to the Convention for the
Conservation of Biodiversity and Protection of Wilderness Areas in Central
America, the RAMSAR Convention, and other treaties, conventions and
agreements. 1107
9.32 In sum, Costa Rica has failed to uphold its obligation to prevent
significant transboundary harm or even to minimize the risks. It has warned that
it will not stop the road construction works, with its President making clear that
“the construction should not be halted.” 1108
9.33 As a consequence of these harmful and destructive activities,
Nicaragua is entitled to a declaration by the Court that Costa Rica has violated its
legal obligations to Nicaragua , with all the legal consequences that result from
such a declaration.
1105
Excerpt of the "Judgment of Central American Court of Justice", available at
http://www.fonare.org/index.php?option=com_content&view=article&id=59:f…-
ccj-ira-al-juicio-de-la-haya&catid=3:newsflash&Itemid=18 ,3 July 2012. ( last visited 21 July
2012) point. 7 (NCM, Vol.II, Annex 23).
1106Ibid., point 5.
1107
1108Ibid., points 3 and 6.
La Nación, Costa Rica, “ Chinchilla: There may be errors, but road project should continue”,
31 May 2012 (NCM, Vol. III, Annex 110).
434 1105
ecosystem, and that the road project poses high risk and environmental danger
by exposing the shared basin and common ecosystem to serious and unpredictable
risks.1106 Consequently, Costa Rica has violated various bilateral treaties such as
the 1858 Treaty of Limits, and multilateral international instruments in
constructing the road 1856, including but not limited to the Convention for the
Conservation of Biodiversity and Protection of Wilderness Areas in Central
America, the RAMSAR Convention, and other treaties, conventions and
agreements. 1107
9.32 In sum, Costa Rica has failed to uphold its obligation to prevent
significant transboundary harm or even to minimize the risks. It has warned that
it will not stop the road construction works, with its President making clear that
“the construction should not be halted.” 1108
9.33 As a consequence of these harmful and destructive activities,
Nicaragua is entitled to a declaration by the Court that Costa Rica has violated its
legal obligations to Nicaragua , with all the legal consequences that result from
such a declaration.
1105
Excerpt of the "Judgment of Central American Court of Justice", available at
http://www.fonare.org/index.php?option=com_content&view=article&id=59:f…-
ccj-ira-al-juicio-de-la-haya&catid=3:newsflash&Itemid=18 ,3 July 2012. ( last visited 21 July
2012) point. 7 (NCM, Vol.II, Annex 23).
1106Ibid., point 5.
1107
1108Ibid., points 3 and 6.
La Nación, Costa Rica, “ Chinchilla: There may be errors, but road project should continue”,
31 May 2012 (NCM, Vol. III, Annex 110). 9.37 President Cleveland made clear that Costa Rica ha d no such
obligation nor such right vis -à-vis the Bay of San Juan del Norte. 1112 Had he
considered Costa Rica as co-sovereign over this area, Arbitrator Cleveland would
have undisputedly recognized both States’ equal rights and obligations regarding
the Bay of San Juan. On the contrary, according to Cleveland, Costa Rica has no
right to oppose nor obligation to pay or bear a share of the costs of works
undertaken in the area of the former Bay of San Juan, therefore, the bay is clearly
not under its sovereignty contrary to what it keeps claiming.
9.38 The first Alexander Award further confirms this interpretation.
General Alexander decided that the direction of the boundary:
shall be due northeast and southwest, across the bank of sand, from
the Caribbean Sea into the waters of Harbor Head Lagoon. It shall
pass, at its nearest point, 300 feet on the northwest side from the small
hut now standing in that vicinity. On reaching the waters of Harbor
Head Lagoon the boundary line shall turn to the left, or southeastward,
and shall follow the water’s edge around the harbor until it reaches the
river proper by the first channel met. Up this channel, and up th1113.er
proper, the line shall continue to ascend as directed in the treaty
9.39 Consequently, the layout of the boundary as established by the first
Alexander Award leaves the area of the former Bay of San Juan del Norte fully
within the Nicaraguan side of the boundary. It then very logically belongs to
of the treaty of limits between Costa Rica and Nicaragua, Washington D.C., 1887, paras. 4- 6
1112, Vol. II, Annex 5, pp. 36-37).
Cleveland Award rendered on 22 March 1888 in Washington upon the validity of the Treaty of
Limits of 1858 between Costa Rica and Nicaragua, RIAA , Vol. XXVIII, pp. 209 -210 (CRM, Vol.
II, Annex 7, pp. 52-53).
1113First Award by the Umpire E.P. Alexander rendered on 30 September 1897 in San Juan del
Norte, Nicaragua, RIAA, Vol. XXVIII, p. 220 (CRM, Vol. II, Annex 9, p. 69).
436 9.37 President Cleveland made clear that Costa Rica ha d no such
obligation nor such right vis -à-vis the Bay of San Juan del Norte. 1112 Had he
considered Costa Rica as co-sovereign over this area, Arbitrator Cleveland would
have undisputedly recognized both States’ equal rights and obligations regarding
the Bay of San Juan. On the contrary, according to Cleveland, Costa Rica has no
right to oppose nor obligation to pay or bear a share of the costs of works
undertaken in the area of the former Bay of San Juan, therefore, the bay is clearly
not under its sovereignty contrary to what it keeps claiming.
9.38 The first Alexander Award further confirms this interpretation.
General Alexander decided that the direction of the boundary:
shall be due northeast and southwest, across the bank of sand, from
the Caribbean Sea into the waters of Harbor Head Lagoon. It shall
pass, at its nearest point, 300 feet on the northwest side from the small
hut now standing in that vicinity. On reaching the waters of Harbor
Head Lagoon the boundary line shall turn to the left, or southeastward,
and shall follow the water’s edge around the harbor until it reaches the
river proper by the first channel met. Up this channel, and up t1113.ver
proper, the line shall continue to ascend as directed in the treaty
9.39 Consequently, the layout of the boundary as established by the first
Alexander Award leaves the area of the former Bay of San Juan del Norte fully
within the Nicaraguan side of the boundary. It then very logically belongs to
of the treaty of limits between Costa Rica and Nicaragua, Washington D.C., 1887, paras. 4- 6
1112, Vol. II, Annex 5, pp. 36-37).
Cleveland Award rendered on 22 March 1888 in Washington upon the validity of the Treaty of
Limits of 1858 between Costa Rica and Nicaragua, RIAA , Vol. XXVIII, pp. 209 -210 (CRM, Vol.
II, Annex 7, pp. 52-53).
1113First Award by the Umpire E.P. Alexander rendered on 30 September 1897 in San Juan del
Norte, Nicaragua, RIAA, Vol. XXVIII, p. 220 (CRM, Vol. II, Annex 9, p. 69). 3. The Right of Nicaraguan Vessels to Reach the Ocean via the
Colorado River
9.42 As shown in Chapter 4, as a result of Costa Rica’s activities,
Nicaraguan boats and ships cannot navigate on the San Juan River to the sea
because the outlet of the San Juan to the sea is blocked for much of the year, and
is, in any case, navigable only by small craft. In spite of this, Costa Rica opposes
Nicaragua’s dredging the lower reach of the San Juan. Moreover, Costa Rica has
put in place physical obstacles across the entrance to the Colorado to prevent
Nicaraguan vessels from reaching the sea by this route or navigating on the river
at all, and enforces this blockade with armed patrol boats. 1116
9.43 As also shown in Chapter 4, Costa Rica’s prevention of Nicaraguan
vessels from reaching the sea via the Colorado is unlawful and is incompatible
with the text and spirit of the 1858 Treaty of Limits, and in part icular with Article
V according to which:
As long as Nicaragua does not recover the full possession of all
her rights in the port of San Juan del Norte, the use and
possession of Punta de Castilla shall be common and equal both
for 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.
9.44 It is clear that the object and purpose of the 1858 Treaty was not
only to determine sovereignty but also to clearly establish and regulate the rights
1116
See para 4.24.
438 3. The Right of Nicaraguan Vessels to Reach the Ocean via the
Colorado River
9.42 As shown in Chapter 4, as a result of Costa Rica’s activities,
Nicaraguan boats and ships cannot navigate on the San Juan River to the sea
because the outlet of the San Juan to the sea is blocked for much of the year, and
is, in any case, navigable only by small craft. In spite of this, Costa Rica opposes
Nicaragua’s dredging the lower reach of the San Juan. Moreover, Costa Rica has
put in place physical obstacles across the entrance to the Colorado to prevent
Nicaraguan vessels from reaching the sea by this route or navigating on the river
at all, and enforces this blockade with armed patrol boats. 1116
9.43 As also shown in Chapter 4, Costa Rica’s prevention of Nicaraguan
vessels from reaching the sea via the Colorado is unlawful and is incompatible
with the text and spirit of the 1858 Treaty of Limits, and in part icular with Article
V according to which:
As long as Nicaragua does not recover the full possession of all
her rights in the port of San Juan del Norte, the use and
possession of Punta de Castilla shall be common and equal both
for 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.
9.44 It is clear that the object and purpose of the 1858 Treaty was not
only to determine sovereignty but also to clearly establish and regulate the rights
1116
See para 4.24. the Secretariat of the Ramsar Convention in regard to these actions,
give Nicaragua prior notice of them and use its best endeavours to find
common solutions with Nicaragua in this respect . . .
(3) . . . Each Party shall refrain from any action which might aggravate
or extend the dispute before the Court or make it more difficult to
resolve. 1117
9.47 Notwithstanding point (2) of the dispositif , which created an
imbalance between the Parties, Costa Rica has not complied with point (1). As
early as 8 March 2011, the very day the Court read its Order, Costa Rica launched
1118
overflights over and around the disputed territory. These overflights continued
to occur throug hout March 2011 and “were carried out by Costa Rican Cessna
172-type airplanes, Bell 206 and H -500 MD helicopters, all of them belonging to
1119
the air surveillance service of the Ministry of Public Security of that country.”
9.48 Nicaragua repeatedly made formal protests to Costa Rica regarding
these overflights. 1120On 13 February 2012, Nicaragua sent a diplomatic note to
Costa Rica in which it explained that the Government of Nicaragua
1117
I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
1118ta Rica v. Nicaragua), Request for the indication of provisional measures , para. 86.
Letter from Carlos José, Argüello Gómez, Agent of Nicaragua, to the Registrar of the ICJ
concerning Nicaraguan compliance with the provisional measures, Ref: 05042011 -01, 5 April
2011, p. 3 See also Diplomatic Note from the Ministry of Foreign Affairs of Nicaragua to the
Minister of Foreign Affairs of Costa Rica, Ref: MRE/DGAJ/127/03/111, 24 March 2011 (NCM,
Vol. III, Annex 67).
1119Diplomatic Note from the Ministry of Foreign Affairs of Nicaragua to the Minister of Foreign
Affairs of Costa Rica, Reference MRE/DGAJ/127/03/111, 24 March 2011. (NMC, Vol. III,
1120x 67).
Diplomatic Note from the Ministry of Foreign Affairs of Nicaragua to the Minister of Foreign
Affairs of Costa Rica, Ref: MRE/DM -AJ/116/02/12, 13 February 2012 (NCM, Vol. III, Annex
76). See also Diplomatic Note N. MRE/DGAJ/127/03/111 (NCM, Vol. III, Annex 67), (NCM,
Vol. III, Annex 76).
440 the Secretariat of the Ramsar Convention in regard to these actions,
give Nicaragua prior notice of them and use its best endeavours to find
common solutions with Nicaragua in this respect . . .
(3) . . . Each Party shall refrain from any action which might aggravate
or extend the dispute before the Court or make it more difficult to
resolve.1117
9.47 Notwithstanding point (2) of the dispositif , which created an
imbalance between the Parties, Costa Rica has not complied with point (1). As
early as 8 March 2011, the very day the Court read its Order, Costa Rica launched
1118
overflights over and around the disputed territory. These overflights continued
to occur throug hout March 2011 and “were carried out by Costa Rican Cessna
172-type airplanes, Bell 206 and H -500 MD helicopters, all of them belonging to
1119
the air surveillance service of the Ministry of Public Security of that country.”
9.48 Nicaragua repeatedly made formal protests to Costa Rica regarding
these overflights. 1120On 13 February 2012, Nicaragua sent a diplomatic note to
Costa Rica in which it explained that the Government of Nicaragua
1117
I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
1118ta Rica v. Nicaragua), Request for the indication of provisional measures , para. 86.
Letter from Carlos José, Argüello Gómez, Agent of Nicaragua, to the Registrar of the ICJ
concerning Nicaraguan compliance with the provisional measures, Ref: 05042011 -01, 5 April
2011, p. 3 See also Diplomatic Note from the Ministry of Foreign Affairs of Nicaragua to the
Minister of Foreign Affairs of Costa Rica, Ref: MRE/DGAJ/127/03/111, 24 March 2011 (NCM,
Vol. III, Annex 67).
1119Diplomatic Note from the Ministry of Foreign Affairs of Nicaragua to the Minister of Foreign
Affairs of Costa Rica, Reference MRE/DGAJ/127/03/111, 24 March 2011. (NMC, Vol. III,
1120x 67).
Diplomatic Note from the Ministry of Foreign Affairs of Nicaragua to the Minister of Foreign
Affairs of Costa Rica, Ref: MRE/DM -AJ/116/02/12, 13 February 2012 (NCM, Vol. III, Annex
76). See also Diplomatic Note N. MRE/DGAJ/127/03/111 (NCM, Vol. III, Annex 67), (NCM,
Vol. III, Annex 76). 2011 and 30 January 2012) into the disputed territory but has never tried to justify
1124
them on the basis of a threat of irreparable prejudice to the disputed territory.
9.53 As for the first visit, Costa Rica explained that “the purpose of the
[first] mission is to make a preliminary evaluation of the situation of the
wetland” 112But this preliminary evaluation had already been made and had been
filed in Court a few weeks before, during the hearings on provisional measures
and the Court found that:
it cannot be concluded at this stage from the evidence adduced by the
Parties that the dr edging of the San Juan river is creating a risk of
irreparable prejudice to Costa Rica’s environment or to the flow of the
Colorado river; . . . nor has it been shown that, even if there were such
a risk of prejudice to rig1126Costa Rica claims in the present case, the
risk would be imminent.
9.54 Furthermore, no prejudice can be said to have been caused to the
area between the issuance of the Court’s Order and Costa Rica’s first mission, as
all Nicaraguan personnel had been withdrawn from the area. 1127
9.55 The second visit, on 30 January 2012, “had the purpose of
1128 1129
surveying the area”, “evaluat[ing] any progress on the recovery of the area”
1124See, e.g. Diplomatic Note from the Ministry of Foreign Affairs of Costa Rica to the Minister of
Foreign Affairs of Nicaragua, Ref: DM-AM-046-12, 27 January 2012 (NCM, Vol. III, Annex 75).
1125
Diplomatic Note from the Ministry of Foreign Affairs of Costa Rica to the Minister of Foreign
1126irs of Nicaragua, Ref: DM-DVM-217-2011, 30 March 2011 (NCM, Vol. III, Annex 68).
I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
(Costa Rica v. Nicaragua), Request for the indication of provisional measures, para. 82.
1127See paras. 7.7-7.10, above.
1128Letter from H.E. Mr. Jorge Urbina-Ortega, co-Agent of Costa Rica, to the Registrar of the ICJ,
Ref: ECRPB-025-12, 3 July 2012 (NCM, Vol. III, Annex 66.).
1129
Ibid.
4422011 and 30 January 2012) into the disputed territory but has never tried to justify
1124
them on the basis of a threat of irreparable prejudice to the disputed territory.
9.53 As for the first visit, Costa Rica explained that “the purpose of the
[first] mission is to make a preliminary evaluation of the situation of the
wetland” 1125But this preliminary evaluation had already been made and had been
filed in Court a few weeks before, during the hearings on provisional measures
and the Court found that:
it cannot be concluded at this stage from the evidence adduced by the
Parties that the dr edging of the San Juan river is creating a risk of
irreparable prejudice to Costa Rica’s environment or to the flow of the
Colorado river; . . . nor has it been shown that, even if there were such
a risk of prejudice to rig1126Costa Rica claims in the present case, the
risk would be imminent.
9.54 Furthermore, no prejudice can be said to have been caused to the
area between the issuance of the Court’s Order and Costa Rica’s first mission, as
all Nicaraguan personnel had been withdrawn from the area. 1127
9.55 The second visit, on 30 January 2012, “had the purpose of
1128 1129
surveying the area”, “evaluat[ing] any progress on the recovery of the area”
1124See, e.g. Diplomatic Note from the Ministry of Foreign Affairs of Costa Rica to the Minister of
Foreign Affairs of Nicaragua, Ref: DM-AM-046-12, 27 January 2012 (NCM, Vol. III, Annex 75).
1125
Diplomatic Note from the Ministry of Foreign Affairs of Costa Rica to the Minister of Foreign
1126irs of Nicaragua, Ref: DM-DVM-217-2011, 30 March 2011 (NCM, Vol. III, Annex 68).
I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
(Costa Rica v. Nicaragua), Request for the indication of provisional measures, para. 82.
1127See paras. 7.7-7.10, above.
1128Letter from H.E. Mr. Jorge Urbina-Ortega, co-Agent of Costa Rica, to the Registrar of the ICJ,
Ref: ECRPB-025-12, 3 July 2012 (NCM, Vol. III, Annex 66.).
1129
Ibid. Nicaragua.” 1133Although Nicaragua offered to discuss and coordinate with Costa
Rica the activities necessary to avoid irreparable damages to the area in
1134
dispute, Costa Rica refused to communic ate any information concerning
1135
alleged risks justifying the sending of Costa Rican personnel, carried out
1136
unilateral missions giving only last-minute notification to Nicaragua, and never
tried to promote joint actions contrary to what it promised. 1137
9.59 Costa Rica is also in serious breach of point (3) of the 2011 Order.
In particular, by constructing a road along the right bank of the San Juan River,
Costa Rica has seriously aggravated the situation in the San Juan area,
exacerbating and extending the dispute.
9.60 Finally, it should be noted that, since early 2011, Costa Rica has
been pursuing an aggressive policy toward Nicaragua. Shortly after the hearings
on the request for provisional measures, it was reported that:
Today in London, UK, the Costa Rican Foreign Minister, René Castro,
started a tour of several European nations to speak about what he
considers a Nicaraguan military invasion, in addition to asking for
1133
I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
(Costa Rica v. Nicaragua), Request for the indication of provisional measures , para. 86(2).
1134Diplomatic Note from the Ministry of Foreign Affairs of Nicaragua to the Minister of Foreign
Affairs of Costa Rica, Ref: MRE/DM/AJST/349/04/11, 1 April 2011, point 11 (NCM, Vol. III,
1135x 69).
1136See paras. 9.50 – 9.57, above.
Ibid. See also Diplomatic Note from the Ministry of Foreign Affairs of Costa Rica to the
Minister of Foreign Affairs of Nicaragua, Ref: DM -AM-046-12, 27 January 2012 (NCM, Vol. III,
Annex 75).
1137Diplomatic Note from the Ministry of Foreign Affairs of Costa Rica to the Minister of Foreign
Affairs of Nicaragua, Ref: DM-225-11, 4 April 2011 (NCM, Vol. III, Annex 70).
444Nicaragua.” 1133Although Nicaragua offered to discuss and coordinate with Costa
Rica the activities necessary to avoid irreparable damages to the area in
1134
dispute, Costa Rica refused to communic ate any information concerning
1135
alleged risks justifying the sending of Costa Rican personnel, carried out
1136
unilateral missions giving only last-minute notification to Nicaragua, and never
tried to promote joint actions contrary to what it promised. 1137
9.59 Costa Rica is also in serious breach of point (3) of the 2011 Order.
In particular, by constructing a road along the right bank of the San Juan River,
Costa Rica has seriously aggravated the situation in the San Juan area,
exacerbating and extending the dispute.
9.60 Finally, it should be noted that, since early 2011, Costa Rica has
been pursuing an aggressive policy toward Nicaragua. Shortly after the hearings
on the request for provisional measures, it was reported that:
Today in London, UK, the Costa Rican Foreign Minister, René Castro,
started a tour of several European nations to speak about what he
considers a Nicaraguan military invasion, in addition to asking for
1133
I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
(Costa Rica v. Nicaragua), Request for the indication of provisional measures , para. 86(2).
1134Diplomatic Note from the Ministry of Foreign Affairs of Nicaragua to the Minister of Foreign
Affairs of Costa Rica, Ref: MRE/DM/AJST/349/04/11, 1 April 2011, point 11 (NCM, Vol. III,
1135x 69).
1136See paras. 9.50 – 9.57, above.
Ibid. See also Diplomatic Note from the Ministry of Foreign Affairs of Costa Rica to the
Minister of Foreign Affairs of Nicaragua, Ref: DM -AM-046-12, 27 January 2012 (NCM, Vol. III,
Annex 75).
1137Diplomatic Note from the Ministry of Foreign Affairs of Costa Rica to the Minister of Foreign
Affairs of Nicaragua, Ref: DM-225-11, 4 April 2011 (NCM, Vol. III, Annex 70). B. NICARAGUA’S COUNTER-CLAIMS ARE ADMISSIBLE
9.64 Nicaraguan counter-claims fulfill the conditions included in Article
80 of the Rules of Court as clarified by the case -law of the Court; they are both
“distinguishable from a defence” (1) and “directly connected with the subject -
matter of claims” of Costa Rica (2).
1. Nicaragua’s Counter -Claims are “Distinguishable from a
Defence”
9.65 In the absence of a definition of a counter -claim in Article 80, the
Court clarified the notion in its case law. In the Genocide case (Bosnia and
Herzegovina v. Serbia), the Court explained that:
Whereas it is estab lished that a counter -claim has a dual
character in relation to the claim of the other party; whereas
a counter-claim is independent of the principal claim in so
far as it constitutes a separate ‘claim’, that is to say an
autonomous legal act the object of which is to submit a new
claim to the Court and whereas at the same time it is linked
to the principal claim, in so far as, formulated as a ‘counter’
claim. It reacts to it: whereas the thrust of a counter -claim is
thus to widen the original subject -matter of the dispute by
pursuing objectives other than the mere dismissal of the
claim of the Applicant in the main proceedings – for
example, that a finding be made against the Applicant; and,
whereas in this respect, the co1142r -claim is distinguishable
from a defence on the merits.
9.66 In the present case, Nicaragua’s counter -claims fall within the
definition given by the Court, as they are clearly “distinguishable from a
1142
I.C.J., Order, 17 December 1997, Application of the Conv ention on the Prevention and
Punishment of the Crime of Genocide, Counter -claims, I.C.J. Reports 1997, p. 256, para. 27. See
also Order, 29 November 2001, Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), I.C.J. Reports 2001, pp. 676-677, para. 29.
446 B. NICARAGUA’S COUNTER-CLAIMS ARE ADMISSIBLE
9.64 Nicaraguan counter-claims fulfill the conditions included in Article
80 of the Rules of Court as clarified by the case -law of the Court; they are both
“distinguishable from a defence” (1) and “directly connected with the subject -
matter of claims” of Costa Rica (2).
1. Nicaragua’s Counter -Claims are “Distinguishable from a
Defence”
9.65 In the absence of a definition of a counter -claim in Article 80, the
Court clarified the notion in its case law. In the Genocide case (Bosnia and
Herzegovina v. Serbia), the Court explained that:
Whereas it is estab lished that a counter -claim has a dual
character in relation to the claim of the other party; whereas
a counter-claim is independent of the principal claim in so
far as it constitutes a separate ‘claim’, that is to say an
autonomous legal act the object of which is to submit a new
claim to the Court and whereas at the same time it is linked
to the principal claim, in so far as, formulated as a ‘counter’
claim. It reacts to it: whereas the thrust of a counter -claim is
thus to widen the original subject -matter of the dispute by
pursuing objectives other than the mere dismissal of the
claim of the Applicant in the main proceedings – for
example, that a finding be made against the Applicant; and,
whereas in this respect, the co1142r -claim is distinguishable
from a defence on the merits.
9.66 In the present case, Nicaragua’s counter -claims fall within the
definition given by the Court, as they are clearly “distinguishable from a
1142
I.C.J., Order, 17 December 1997, Application of the Conv ention on the Prevention and
Punishment of the Crime of Genocide, Counter -claims, I.C.J. Reports 1997, p. 256, para. 27. See
also Order, 29 November 2001, Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), I.C.J. Reports 2001, pp. 676-677, para. 29. 9.68 Similarly, Costa Rica’s responsibility has been engaged as a
consequence of its violations of the first, second and third provisional measures
indicated by the Court in its order of 8 March 2011.
9.69 Finally, Nicaragua seeks a declaration confirming that:
• The areas west and north of the demarcation drawn by General
Alexander, including what was formerly the Bay of San Juan del
Norte, remains under the exclusive sovereignty of Nicaragua; and
• Nicaragua has the right to navigate the Colorado River until it
can navigate in and out to sea by the San Juan River proper.
9.70 These claims clearly correspond to Costa Rica’s submissions and
are based on the same instruments and rules as those invoked by the Applicant
although they are not confined to a defence against Costa Rica’s claims.
2. Nicaragua’s Counter-Claims are “Directly Connected with the
Subject-Matter of Claims” of Costa Rica
9.71 Article 80 of the Rules of the Court provides that counter -claims
must be “directly conne cted with the subject -matter of the claim of the
[Applicant].” The Rule of the Court being silent on the meaning of the expression
“directly connected”, the Court has emphasized that:
it is for [the Court], in its sole discretion, to assess whether the
counter-claim is sufficiently connected to the principal claim, taking
account of the particular aspects of each case; and . . . as a general rule,
the degree of connection between the claims must be assessed both in
fact and in law.1149
1149
Ibid., p. 258, para. 33. See also I.C.J., Order, 10 March 1998, Oil Platforms (Islamic Republic
of Iran v. United States of America), Counter -Claim, I.C.J. Reports 1998 , pp. 204- 205, para. 37;
Order, 29 November 2001, Armed Activities on the Territo ry of the Congo (Democratic Republic
of the Congo v. Uganda) , I.C.J. Reports 2001, p. 678, para. 36.
448 9.68 Similarly, Costa Rica’s responsibility has been engaged as a
consequence of its violations of the first, second and third provisional measures
indicated by the Court in its order of 8 March 2011.
9.69 Finally, Nicaragua seeks a declaration confirming that:
• The areas west and north of the demarcation drawn by General
Alexander, including what was formerly the Bay of San Juan del
Norte, remains under the exclusive sovereignty of Nicaragua; and
• Nicaragua has the right to navigate the Colorado River until it
can navigate in and out to sea by the San Juan River proper.
9.70 These claims clearly correspond to Costa Rica’s submissions and
are based on the same instruments and rules as those invoked by the Applicant
although they are not confined to a defence against Costa Rica’s claims.
2. Nicaragua’s Counter-Claims are “Directly Connected with the
Subject-Matter of Claims” of Costa Rica
9.71 Article 80 of the Rules of the Court provides that counter -claims
must be “directly conne cted with the subject -matter of the claim of the
[Applicant].” The Rule of the Court being silent on the meaning of the expression
“directly connected”, the Court has emphasized that:
it is for [the Court], in its sole discretion, to assess whether the
counter-claim is sufficiently connected to the principal claim, taking
account of the particular aspects of each case; and . . . as a general rule,
the degree of connection between the claims must be assessed both in
fact and in law.1149
1149
Ibid., p. 258, para. 33. See also I.C.J., Order, 10 March 1998, Oil Platforms (Islamic Republic
of Iran v. United States of America), Counter -Claim, I.C.J. Reports 1998 , pp. 204- 205, para. 37;
Order, 29 November 2001, Armed Activities on the Territo ry of the Congo (Democratic Republic
of the Congo v. Uganda) , I.C.J. Reports 2001, p. 678, para. 36. for violations of the [same] Treaty” 1154and “the determination of the reparation
due on this account.” 1155
9.74 These conditions are clearly met in the present case.
9.75 The road building project is directly connected to the main Costa
Rican claim directed against the Nicaraguan dredging programme:
First, like the dredging programme, the construction of the road is
undertaken in the border area;
Second, the road construction project appears to be an answer by
1156
Costa Rican authorities to the Nicaraguan dredging programme;
and
1157
Third, as demonstrated above, erosion, sediment-laden runoff, and
the dumping of trees, debris, and sediments into the San Juan as a
result of the road construction project makes the dredging of the river
even more necessary and, by the same token, aggravates the present
dispute.
9.76 Moreover, as shown in Chapter 4, Costa Rica has undertaken the
construction of a road very close to the right bank of the San Juan River, the land
border between Nicaragua and Costa Rica, in violation of several international
agreements to which both states a re Parties, and which are the same invoked by
the Claimant in the present case, including but not limited to: 1158
1154I.C.J., Order, 10 March 1998, Oil Platforms (Islamic Republic of Iran v. United States of
America), Counter-Claim, I.C.J. Reports 1998, p. 205, para. 38.
1155
I.C.J., Order, 30 June 1999, Land and Maritime Boundary between Cameroon a nd Nigeria,
1156J. Reports 1999, pp. 985-986.
See paras. 4.46-4.65 and 9.9 above.
1157See paras. 4.46-4.65 above.
1158I.C.J., Application instituting proceedings, 21 December 2011, Construction of a Road in
Costa Rica along the San Juan River (Nicaragua v. Costa Rica), paras. 47-48.
450for violations of the [same] Treaty” 1154and “the determination of the reparation
due on this account.” 1155
9.74 These conditions are clearly met in the present case.
9.75 The road building project is directly connected to the main Costa
Rican claim directed against the Nicaraguan dredging programme:
First, like the dredging programme, the construction of the road is
undertaken in the border area;
Second, the road construction project appears to be an answer by
1156
Costa Rican authorities to the Nicaraguan dredging programme;
and
1157
Third, as demonstrated above, erosion, sediment-laden runoff, and
the dumping of trees, debris, and sediments into the San Juan as a
result of the road construction project makes the dredging of the river
even more necessary and, by the same token, aggravates the present
dispute.
9.76 Moreover, as shown in Chapter 4, Costa Rica has undertaken the
construction of a road very close to the right bank of the San Juan River, the land
border between Nicaragua and Costa Rica, in violation of several international
agreements to which both states a re Parties, and which are the same invoked by
the Claimant in the present case, including but not limited to: 1158
1154I.C.J., Order, 10 March 1998, Oil Platforms (Islamic Republic of Iran v. United States of
America), Counter-Claim, I.C.J. Reports 1998, p. 205, para. 38.
1155
I.C.J., Order, 30 June 1999, Land and Maritime Boundary between Cameroon a nd Nigeria,
1156J. Reports 1999, pp. 985-986.
See paras. 4.46-4.65 and 9.9 above.
1157See paras. 4.46-4.65 above.
1158I.C.J., Application instituting proceedings, 21 December 2011, Construction of a Road in
Costa Rica along the San Juan River (Nicaragua v. Costa Rica), paras. 47-48. 9.79 As shown in Chapter 6 of the present Counter -Memorial, the
situation of the Bay of San Juan del Norte was regulated in the Treaty of Limits
concluded in 1858 between Nicaragua and Costa Rica 1165which is the main
1166
international instrument applicable in the present case. Costa Rica claims
sovereign rights over the Bay. However, it has, in reality, lost any right over the
area, as a consequence, among other causes, of the drying up of the Bay – whether
it is the result of a natural evolution or of Costa Rica’s activities.
9.80 This area lies in the general vicinity of the mouth of the San Juan
River and a few kilometres north and west of the caño. As the Court put it, “the
rights at issue . . . derive from the sovereignty claimed by the Parties over the
same territory” 1167and this sovereignty is determined by the main instrument
applicable in this case, the 1858 Treaty of Limits as interpreted by the first
1168
Alexander’s Award. Costa Rica bases itself on this Treaty, which it interprets
wrongly, precisely in order to claim joint ownership over the Bay. 1169
9.81 This question is part of the issues of sovereignty at the mouth of the
San Juan River which lies at the heart of the present case.
1165See Article V of the 1858 Treaty of Limits, para. 6.138 above.
1166See paras. 3.14 - 3.21 above.
1167
I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
1168ta Rica v. Nicaragua), Request for the indication of provisional measures, para. 56.
1169See para.9.36. above.
See CRM, e.g. p. 41, para. 2.20, pp. 134- 135, para. 4.4, pp. 140- 141, para. 4.13 and pp. 142-
143, para. 4.16.
452 9.79 As shown in Chapter 6 of the present Counter -Memorial, the
situation of the Bay of San Juan del Norte was regulated in the Treaty of Limits
concluded in 1858 between Nicaragua and Costa Rica 1165which is the main
1166
international instrument applicable in the present case. Costa Rica claims
sovereign rights over the Bay. However, it has, in reality, lost any right over the
area, as a consequence, among other causes, of the drying up of the Bay – whether
it is the result of a natural evolution or of Costa Rica’s activities.
9.80 This area lies in the general vicinity of the mouth of the San Juan
River and a few kilometres north and west of the caño. As the Court put it, “the
rights at issue . . . derive from the sovereignty claimed by the Parties over the
same territory” 1167and this sovereignty is determined by the main instrument
applicable in this case, the 1858 Treaty of Limits as interpreted by the first
1168
Alexander’s Award. Costa Rica bases itself on this Treaty, which it interprets
wrongly, precisely in order to claim joint ownership over the Bay. 1169
9.81 This question is part of the issues of sovereignty at the mouth of the
San Juan River which lies at the heart of the present case.
1165See Article V of the 1858 Treaty of Limits, para. 6.138 above.
1166See paras. 3.14 - 3.21 above.
1167
I.C.J., Order, 28 March 2011, Certain activities carried out by Nicaragua in the border area
1168ta Rica v. Nicaragua), Request for the indication of provisional measures, para. 56.
1169See para.9.36. above.
See CRM, e.g. p. 41, para. 2.20, pp. 134- 135, para. 4.4, pp. 140- 141, para. 4.13 and pp. 142-
143, para. 4.16. it is permitted for certain types of claim to be set out as incidental
proceedings, that is to say, within the context of a case which is
already in progress, this is merely in order to ensure better
administration of justice, given the specific nature of the claims in
question; whereas, as far as counter- claims are concerned, the idea is
essentially to achieve a procedural economy whilst enabling the Court
to have an overview of the resp1173ve claims of the parties and to
decide them more consistently.
9.86 There is no doubt in the present case that a pronouncement by the
Court on the Nicaragua’s counter-claims as detailed in this Chapter would enable
the Court to have a clearer and more complete overview of the case and to decide
more consistently on the respective claims of the Parties as well as “ensur[ing] a
better administration of justice” by achieving procedural economy.
1173
I.C.J., Order, 17 December 1997, Application of the Convention on the Prevention and
Punishment of the Crime of Genocide, Counter -claims, I.C.J. Reports 1997, p. 257, para. 30.
454 it is permitted for certain types of claim to be set out as incidental
proceedings, that is to say, within the context of a case which is
already in progress, this is merely in order to ensure better
administration of justice, given the specific nature of the claims in
question; whereas, as far as counter- claims are concerned, the idea is
essentially to achieve a procedural economy whilst enabling the Court
to have an overview of the resp1173ve claims of the parties and to
decide them more consistently.
9.86 There is no doubt in the present case that a pronouncement by the
Court on the Nicaragua’s counter-claims as detailed in this Chapter would enable
the Court to have a clearer and more complete overview of the case and to decide
more consistently on the respective claims of the Parties as well as “ensur[ing] a
better administration of justice” by achieving procedural economy.
1173
I.C.J., Order, 17 December 1997, Application of the Convention on the Prevention and
Punishment of the Crime of Genocide, Counter -claims, I.C.J. Reports 1997, p. 257, para. 30. (iv) in so doing, Nicaragua is entitled as it deems suitable to re -
establish the situation that existed at the time the 1858 Treaty was
concluded;
(v) the only rights enjoyed by Costa Rica on the San Juan de
Nicaragua River are those defined by said Treaty as interpreted by
the Cleveland and Alexander Awards.
As to Nicaragua’s counter -claims as specified in Chapter 9 of this Counter -
Memorial, Nicaragua requests a declaration by the Court that:
(1) Nicaragua has become the sole sovereign over the area formerly
occupied by the Bay of San Juan del Norte;
(2) Nicaragua has a right to free navigation on the Colorado Branch of
the San Juan de Nicaragua River until the conditions of navigability
existing at the time the 1858 Treaty was concluded are re-established;
(3) Costa Rica bears responsibility to Nicaragua
- for the construction of a road along the San Juan de Nicaragua
River in violation of Costa Rica’s obligations stemming from
the 1858 Treaty of Limits and various treaty or customary rules
relating to the protection of the envi ronment and good
neighbourliness; and
456 - for the non- implementation of the provisional measures
indicated by the Court’s Order of 8 March 2011.
Compensation in the form of damages, should be awarded by the Court in a
subsequent phase of the case.
Nicaragua reserves its right to amend and modify these submissions in the light of
the further pleadings in this case.
The Hague, 6 August 2012.
Carlos J. Argüello-Gómez
Agent of the Republic of Nicaragua
457458 CERTIFICATION
I have the honour to certify that t his Counter -Memorial and the documents
annexed in Volume II, III and IV, as well as Appendix I and II of this volume 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, 6 August 2012
Carlos J. Argüello-Gómez
Agent of the Republic of Nicaragua
459460 APPENDIX 1
APPENDIX 1
DISTRIBUTARY CHANNELS OF THE RIO SAN JUAN,
NICARAGUA AND COSTA RICA:
REVIEW OF REPORTS BY THORNE, UNITAR, RAMSAR, MEET, AND
ARAYA-MONTERO
G. MATHIAS KONDOLF, PHD
2241 WARD STREET, BERKELY CALIFORNIA USA
PROFESSOR OF ENVIRONMENTAL PLANNING
UNIVERSITY OF CALIFORNIA, BERKELEY
JULY 2012
461APPENDIX 1
462 APPENDIX 1
Distributary Channels of the Río San Juan,
Nicaragua and Costa Rica:
Review of Reports by Thorne, UNITAR, Ramsar, MEET, and
Araya‐Montero
G. Mathias Kondolf, PhD
2241 Ward Street, Berkeley California USA
Professor of Environmental Planning
University of California, Berkeley
July 2012
463APPENDIX 1
Table of Contents
1. Introduction and Summary of Conclusions
2. Review of expert report by Professor Colin Thorne of November 2011,
“Assessment of the physical impact of works carried out by Nicaragua since
October 2010 on the geomorphology, hydrology and sediment dynamics of the San
Juan River and the environmental impacts on Costa Rican territory.”
3. Review of UNITAR/UNOSAT reports of January, March, and November 2011.
4. Review of Ramsar mission report of 2010, “North‐eastern Caribbean Wetland of
International Importance.”
5. Review of Report by Ministry of Environment, Energy, and Telecommunications
(MEET) of 2011, “Evaluation and assessment of the environmental situation in the
North‐eastern Caribbean Wetland (Humedal Caribe Noreste) pursuant to the
Order of the International Court of Justice.”
6. Review of Araya‐Montero 2010, “Appraisal of maximum average age of the trees
felled in primary forest areas in the Punta Castilla, Colorado, Pococí and Limón
sectors of Costa Rica, as a result of the Nicaraguan Army’s occupation or the
apparent restoration of an existing canal.”
7. Review of Araya‐Montero 2011, “Age approximation of trees cut in the Area under
Costa Rica’s Environmental Management located on the causeway of the artificial
channel built on a portion of territory of Calero Island to connect the San Juan
River with los Portillos Lagoon.”
464 APPENDIX 1
1. Introduction and Summary
1.1 Scope and Purpose
The purpose of this report is to review the expert report of Professor Colin Thorne
“Assessment of the physical impact of works carried out by Nicaragua since October
2010 on the geomorphology, hydrology and sediment dynamics of the San Juan River
and the environmental impacts on Costa Rican territory”, along with supporting maps,
documents, and reports on which he relied. In addition to Professor Thorne’s report
and supporting documents, I examined current aerial imagery, other historical maps,
and photos and data regarding construction of a road along the south bank of the
Río San Juan.
This report consists of separate sections presenting comments on the report of
Professor Thorne and supporting documents. References to page numbers refer to
page numbers as they appear in Volumes I and II of the Memorial of Costa Rica.
1.2 Summary of Conclusions
Key points from this review include the following:
The author, Professor Colin Thorne, is a well‐respected academic, with expertise in
fluvial geomorphology and hydrology. The first part of his report presents some of
his own work, but in most of his report, Professor Thorne is apparently repeating
the conclusions reached by other authors who are less qualified than he, but whose
often tenuous conclusions he appears to accept uncritically.
As detailed in Sections 3‐7 of this report, these other reports are technically weak,
and do not meet minimum standards for scientific work. For the reports reviewed
in sections 3‐5, the authors are not disclosed, which severely undermines their
credibility. The reports also include admissions of bias and evidently repeat
conclusions provided to the authors by third parties. The reports include clumsy
attempts to use technical terminology in fluvial geomorphology and hydrology,
which reflect the authors’ lack of technical background.
The theory presented in the Thorne report that that the Caño is not a distributary
channel of the Río San Juan is both undermined by the fact that historical maps do
not support Professor Thorne’s theory that the shoreline in the area has been
unchanged since the 18 th century and contradicted by the fact that river deltas split
their flow amongst multiple distributary channels, so such flow would be expected
unless blocked by a dyke or other artificial feature.
The analysis of historical maps presented in the Thorne report was selective, with
an over 60‐year gap in coverage, and leaving out a 1949 map by the Costa Rican
1
465APPENDIX 1
Geographic Institute that clearly shows the Caño connecting the Río San Juan with
Harbor Head Lagoon.
The impacts of clearing and excavating the Caño were minor and short‐lived (as
acknowledged by the Thorne report). There is no credible evidence of harm to
Costa Rican territory.
The impacts of the dredging program are likewise minor. The main points of impact
would be the dredge disposal sites, which in this environment can be expected to
revegetate rapidly.
The Thorne report cites an unavailable study that predicts significant shifts in flow
from the Colorado into the San Juan distributary resulting from the dredging
program. However, this study evidently modeled scenarios that are much larger
than the actual dredging program, so the results are meaningless for assessing the
impacts of the actual dredging program.
Given the small scale of the dredging program, it is extremely unlikely to harm the
flow of the Colorado River.
The Thorne report warns that the flow of the Lower Río San Juan is slowly declining.
Based on its stated concerns about the impacts of cutting off freshwater flow to the
river mouth at Greytown Harbor, the dredging program, by potentially keeping the
San Juan distributary flowing, could actually produce an environmental benefit by
preventing the problems that the Thorne report predicts.
The ominous predictions of environmental collapse if the dredging is continued and
the Caño maintained are not justified based on scientific evidence presented, but are
rather assertions that exaggerate the potential impacts.
2
466 APPENDIX 1
Biography of the Author
G. Mathias (Matt) Kondolf is a fluvial geomorphologist and environmental planner,
specializing in environmental river management and restoration. He is Professor of
Environmental Planning at the University of California, Berkeley, where he teaches
courses in hydrology, river restoration, environmental science, and Mediterranean-
climate landscapes, and serves as Chair of the Department of Landscape Architecture and
Environmental Planning. His research concerns human-river interactions broadly, with
emphasis on management of flood-prone lands, sediment management in reservoirs and
regulated river channels, and river restoration. He co-edited the reference work on
nd
methods in the field, Tools in Fluvial Geomorphology (John Wiley & Sons 2003, 2
edition forthcoming in 2013). He is currently the Clarke Scholar at the Institute for
Water Resources of the US Army Corps of Engineers in Washington, and formerly
served on the Environmental Advisory Board to the Chief of the Corps and on the
Science Board for the CALFED Ecosystem Restoration Program. Professor Kondolf
lectures and conducts research on river geomorphology, management, and restoration in
the US and abroad. He has provided expert testimony on river-related issues to the US
Congress, the California Legislature and the California Water Resources Control Board.
He received his AB in Geology (cum laude) from Princeton University, a master’s degree
in Earth Sciences from UC Santa Cruz, and a PhD in Geography and Environmental
Engineering from the Johns Hopkins University.
3
467APPENDIX 1
2. Review of expert report by Professor Colin Thorne, “Assessment of the
physical impact of works carried out by Nicaragua since October 2010 on the
geomorphology, hydrology and sediment dynamics of the San Juan River and the
environmental impacts on Costa Rican territory,” October 2011 (Appendix I,
Vol. I, pp. 307‐470 of the Memorial of Costa Rica) (henceforth “the Thorne
report”).
2.1. Unclear Authorship and Source of Conclusions
The author, Professor Colin Thorne, is a well‐respected academic with expertise in
fluvial geomorphology and hydrology. The first part of the Thorne report mostly
presents his original work on the historical evolution of the Río San Juan delta.
Although I raise a number of points regarding the Thorne report’s methods and
conclusions, and disagree with some of them, this analysis is well within Professor
Thorne’s area of acknowledged expertise. However, the Thorne report presents not
only his own work, but also work by other authors who appear not to be as well
qualified as Professor Thorne. In most cases, but not all, the Thorne report cites
these other sources, such as Ramsar (2010), UNITAR (2011a, 2011b, 2011c), and
Araya‐Montero (2010, 2011).
The Thorne report also draws extensively from a draft report, which the Thorne
report refers to as being written by “Ramsar scientists”, although it cites the draft
report as being authored by Araya‐Montero et al. (2011) (Vol. I, p. 389). The Thorne
report mentions the “Ramsar teams” (Vol. I, p. 389) and the “Ramsar reports” (Vol. I,
p. 391) in referring to both Ramsar (2010) and this subsequent draft report,
evidently assuming that the latter was also to be released by Ramsar. However,
when the draft report was finally released, it was by the Costa Rican Ministry of
Environment, Energy, and Telecommunications, i.e., MEET (2011), and directed to
Ramsar (Vol. II, p. 221).
As noted below, the Ramsar (2010), UNITAR (2011a, 2011b, 2011c), and MEET
(2011) reports all lack a list of authors and statement of their qualifications, in
distinct contrast to credible scientific work, in the which authors are clearly stated
and accountable for their work.
In the majority of his report, Professor Thorne is apparently not presenting his own
original work, but mostly repeating the conclusions reached by other authors.
Professor Thorne seems to implicitly accept at face value the material presented in
these other reports without any critical evaluation of their plausibility or reliability.
However, as detailed in sections 3‐7, all of these reports suffer from a lack of
scientific rigor, and in some cases, demonstrable bias.
The manner in which the Thorne report mixes observations and conclusions from
other authors is illustrated by the incorporation of points from the draft report
(ultimately released by Costa Rica as MEET 2011) in Section 1.7, beginning on p. 389
4
468 APPENDIX 1
of Volume I. The Thorne report lists conclusions, attributing them to the draft
report with wording such as: “systems reported to have been impacted”; “[i]t was
further noted that…”; “[d]irect and indirect impacts on flora were observed or
inferred in terms of…”; and “[i]n terms of fauna, changes mentioned include…”.
Then the Thorne report states: “In this Report, the author has built upon the
preliminary and draft reports prepared following the Ramsar Missions, drawing on
the wider range of evidence provided in Sections I.2 and I.4 to assess the short‐term
impacts and consequences, and, in assessing the medium‐ and long‐term outcomes
of its physical and environmental impacts, taking into consideration the possibility
that the Caño might be re‐excavated or enlarged….” (Vol. I, p. 391). The Thorne
report then warns of “collapse in the wetland and lagoonal ecosystems that would
probably prove, in the long‐term, to be irreversible” (Vol. I, p. 391). Table I.6 is
labeled as “adapted from Aguilar‐Gonzalez and Moulaert‐Quiros (2011)” (Vol. I, p.
392). It lists as environmental outcomes: “changes…that will be radical and
probably irreversible”; “eradication of previous ecosystems”; “progressive
changes…that may be irreversible”; and “collapse of wetland ecosystem…involving
loss of protected species and valuable environmental services.” The report does not
make clear to the reader whose predictions these are – i.e., whether they are
Professor Thorne’s predictions, or if the Thorne report is simply conveying the
predictions of other authors.
In some cases, the Thorne report presents results of work that appears to have been
conducted by others but which is evidently not available in reports, and the Thorne
report does not clearly state who conducted the work, nor what methods were used.
For example, on pp. 438‐440 of Volume I, the Thorne report presents results of
“investigations conducted in the Río Colorado” and presents sediment size data
from sediment samples, but does not specify who conducted the investigations. As
no citation to a scientific study or grey literature report is provided for these data,
the implication is that either Professor Thorne collected and analyzed these samples
himself, or some unknown person – presumably hired by his client, the Government
of Costa Rica – did so and provided Professor Thorne with the results.
This example illustrates a problem that pervades the Thorne report. While the
author is an authority in the field, his report includes observations and conclusions
by others who may be less qualified. The credibility of these other observations and
conclusions may be falsely inflated by their inclusion in the Thorne report, and by
the tacit endorsement that inclusion implies.
2.2 Lack of Distinct, Clear Statement of Methods
Although some of the methods used and sources relied upon are stated at various
points, the Thorne report lacks a distinct section, clearly and comprehensively
stating the methods Professor Thorne used and the sources upon which he drew.
5
469APPENDIX 1
Such a section would be very helpful to the reader who tries to evaluate the
information, statements, and conclusions presented.
In a good example of stating methods and evidence used, the Thorne report
presents a list of historical maps used (Table I.1). However, the report presents no
comparable list of aerial/satellite images and their sources. Moreover, the images
presented and discussed in the text suffer from an enormous gap, from 1899 to
1961. A critically important map by the Costa Rican Geographical Institute dated
1949 is omitted from the Thorne report and analysis, undermining the report’s
credibility.
Not all of Professor Thorne’s reported sources of images seem reliable. For example,
the Thorne report presents an image on p. 431 of Volume I that purports to be a
“satellite” image from 1952. Given that the first satellite to orbit planet Earth was
launched five years later, this hardly seems plausible. What is more likely is that the
image (if actually from 1952) was taken by a plane, perhaps a high‐altitude aerial
photograph. Similarly, it seems more likely that the 1961 image identified by the
Thorne report as a satellite image was in fact an aerial photograph, as this
technology was well‐developed over three decades prior to this date, whereas the
technology for satellite imagery was then in its infancy.
2.3 The Deltaic Environment of the San Juan River
Deltas develop at the downstream ends of river systems, where rivers debouch into
the sea or another body of water such as an estuary or a lake. (There are also inland
deltas that develop where a flowing river encounters a flatter‐gradient, usually
wider valley.) Within a delta, the river channel splits into multiple distributary
channels. These behave in opposite fashion to the tributary streams that join the
river upstream, adding their flow to the main river. Deltas are dynamic
environments, with active deposition of sediment, and frequent shifts in the
channels. Distributaries carry sediment, deposit and fill, then shift to alternate
channels, which are then the loci of deposition until they are abandoned and active
deposition shifts elsewhere. Thus, distributaries can grow or shrink over time in
response to deposition, erosion, blockage by growth of vegetation or collection of
debris, and other factors. Flow in these distributaries will normally vary during the
year, from wet season to dry. The splitting of flow into multiple distributaries can
be seen at the large scale, as the Upper Rio San Juan splits into the Lower San Juan
and the Colorado, both of which, in turn, divide further into distributaries.
That the Lower Río San Juan has followed, and continues to follow, alternate routes
to the sea is reflected in the multiple distributary channels visible on aerial imagery.
For example, about 3 km southeast of the Harbor Head Lagoon, there is a prominent
distributary channel that departs from the main Río San Juan and runs northeasterly,
debouching directly into the sea. This distributary is very obvious on the aerial
imagery, being over 500 m wide with multiple channels in a braided pattern.
6
470 APPENDIX 1
Another distributary clearly visible on aerial imagery is located about 500 m north
of the Caño. This was formerly one of the main distributary channels of the Río San
Juan, carrying a large part of its water and sediment, and building what the Thorne
report calls the micro‐delta that grew out into the harbor of the Río San Juan.
Historical maps and aerial images suggest that the main channel of the Río San Juan
was formerly wider in its lower stretches than it presently is. Although it is difficult
to judge changes in channel widths from historical aerial imagery without knowing
the flow at which the various images were taken, it appears the current channel is
narrower than the channel appearing on the 1961 image presented in the Thorne
report on p. 342.
More generally, deltas are inherently dynamic environments, characterized by
spreading of water and sediment as the river reaches the low gradient near sea level,
sedimentation of distributary channels, shifting of river course, etc. If sediment
loads increase as a result of accelerated upstream erosion, as has probably occurred
on the Río San Juan, it is likely that the delta may respond. This response is difficult
to predict, with so many variables involved in the deltaic environment. However, it
is possible that sedimentation in the Río San Juan has accelerated as a result of
increased erosion and sediment delivery to the channel upstream, as discussed
below.
2.4 Origin of the Caño
The Thorne report proposes a theory of historical evolution of the Bay of San Juan
del Norte, which in broad strokes is probably generally accurate: in previous
centuries, the delta of the Río San Juan grew into the open water of its harbor,
cutting the water body in two and displacing much of the formerly open water.
However, some details of the theory are based largely on speculation, notably those
pertaining to the critical questions regarding the nature of the Caño.
The Thorne report (Vol. I, p. 356) asserts that the “inlet at the southern tip of the
Harbor Head Lagoon…is a remnant of the former Bay of San Juan del Norte rather
than a fluvially formed channel”, and that a ‘micro‐delta’ of the San Juan River
(presumably the delta formed by a distributary of the river) grew toward the pre‐
existing shoreline of the lagoon and stopped growing just short of the shore, leaving
a gap of roughly consistent width between the newly deposited delta sediments and
the pre‐existing lagoon shoreline. The Thorne report asserts that this gap is now
what it calls the “inlet” at the south end of the lagoon. Relying on this theory of the
delta growing and then stopping just short of the lagoon shoreline, the Thorne
report asserts that the channel was not “fluvially formed”. In addition, the report
asserts that the channel did not and does not convey flow from the Río San Juan.
This theory fails to adequately explain the observed features at the site, and it is
inconsistent with the well‐documented behavior of deltas.
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It is implausible that the ‘micro‐delta’ would grow just so far and then stop, so that it
formed what to most observers would appear to be a channel. Even if it did so, this
theory does not explain how this inlet – which according to the Thorne report is a
remnant body of water, not a real channel – would have avoided gradually filling in
with sediment over the course of many decades, unless this channel carried flowing
water to keep itself open.
The Thorne report (Vol. I, p. 356) theorizes that this channel is a “small wetland
watercourse…carrying runoff generated by local rainfall.” However, it is difficult to
imagine that only local runoff would keep the channel open. The Thorne report
presents no quantitative analysis of how much runoff would be “generated by local
rainfall”, nor of whether this would be sufficient to keep open the channel that
clearly exists on the site. (This would require detailed topography, estimates of unit
storm runoff amounts, and, ideally, observations of surface runoff in response to
local rainfall, none of which have been presented.) A more plausible explanation is
that this channel carries flow from the San Juan River, especially during periods of
high water, as would be expected for distributary channels within a delta, as
discussed below.
The Thorne report frequently asserts that the eastern shoreline of the Bay of San
Juan del Norte has been unchanged, saying that the inlet at the south end of Harbor
Head Lagoon is “a narrow pocket formed between the advancing micro‐delta of the
Río San Juan and the ancient, static shoreline of the Bay of San Juan del Norte. The
long‐term stability of the shoreline in the southern part of the Harbor Head Lagoon
is demonstrated by the fact that the same feature can be discerned in the satellite
image of 1961” (Vol. I, p. 331). Referring to the 1899 map, the Thorne report states,
“The configuration and position of the shoreline of the southern part of the Harbor
Head Lagoon are again unchanged…” (Vol. I, p. 340). The Thorne report does not
present any analysis of shoreline changes, so this assertion is unsupported by
evidence.
In fact, overlaying the 1890 and 1899 maps shows significant differences in the
shoreline of Harbor Head Lagoon, which seem to indicate retreat of the lagoon
shoreline (see Figure 1), inconsistent with the Thorne report’s theory.
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Figure 1. Overlay of 1890 and 1897 maps presented by the Thorne report, using
river course and coastline as basis for overlay alignment. Prepared by Kristen
Podolak, PhD.
The overlay presented in Figure 1 is simply based on the uncorrected map images,
lined up based primarily on the course of the river, which remained unchanged
between the two maps. In conducting such overlay analysis of historical maps, it
may be difficult or impossible to distinguish differences that are artifacts of map
errors (especially with older, manuscript maps) from differences that result from
real changes in the land. Further (and more systematic) analysis of these historical
maps could provide insights into the history of landform change, and would in any
case be preferable to unsupported assertions.
Referring to the 1961 aerial image, the Thorne report asserts: “The close
correspondence between the contemporary shoreline of the Harbor Head Lagoon
and that in the 18 century maps is both remarkable and proof that sediment laden
water has not drained into the Harbor Head Lagoon in any quantity, as this would
certainly have altered the shoreline through accretion” (Vol. I, p. 343). However, the
assertion of a “close correspondence” is not supported by a mapping analysis. In
fact, when one attempts to overlay these maps, one finds that it is essentially
impossible, because the shorelines on the 1787 map and 1961 aerial image are so
different (see Figure 2). Moreover, the scale of the 1787 image is unreadable, at
least in the version included in the Thorne report, posing further challenges to
overlaying. But no matter how one scales the 1787 map, it does not overlay on the
1961 aerial image, disproving the theory of a “close correspondence” in shorelines
between the two maps.
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Figure 2. Attempted overlay of 1787 map and 1961 aerial image presented by
the Thorne report. Prepared by Kristen Podolak, PhD.
The most remarkable shortcoming of the historical analysis in the Thorne report is
the huge change that it does not mention: the disappearance of the Bay of San Juan
del Norte. In the late 18 and early 19 century, this Bay was a large feature, and a
popular anchorage for ships. Since then, the bay has been lost to a combination of
deposition and coastal erosion, with only the current remnant Harbor Head Lagoon
still present as open water.
Thus, one of the main problems with this argument is that Professor Thorne has not
demonstrated that the contemporary shoreline corresponds to the 18 century th
shoreline. In fact, if one brings the maps to similar scales and attempts to overlay
them, it is impossible to make them line up in the “close correspondence” that
Professor Thorne asserts. The shapes and locations of the shorelines do not line up.
Thorne’s theory is not backed up by rigorous science, but only his assertions of
“close correspondence” between maps, which is demonstrably not the case.
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2.5 Distributaries of the Río San Juan
Despite the Thorne report’s denials that the Caño has been and remains a
distributary of the Lower Río San Juan, it is difficult to imagine how the Río San Juan
at high water could avoid overflowing into the Caño channel, given that the San Juan
River has a higher water surface than Harbor Head Lagoon. Given the short distance
between the main Río San Juan channel and the Harbor Head Lagoon via the Caño,
and consequently the relatively steeper slope offered by this path, it is implausible
that none of the waters of the Río San Juan have followed the Caño into Harbor Head
Lagoon. The Caño has evidently not been a principal distributary of the Río San Juan
for some time, and as typical of such environments, it has become vegetated, which
would tend to stabilize it. However, like other such distributary channels, it can be
assumed to carry overflow from the Río San Juan, and these flows keep its lower
reach open. To prevent such overflow would have required construction of some
kind of levee or dyke to prevent this natural flow, and no evidence has been
presented that such a feature was constructed or presently exists.
As typical of deltas, overflow from the main channel of the San Juan River flows
outward through multiple distributary channels. The Caño is one of these. Another
such channel, visible about 500 m north of the Caño, is a former principal
distributary, whose sediment load built up delta lobes into the Harbor of Río San
Juan, as depicted on historical maps, but which is now a less active distributary. The
important point is that these channels provide a clear and important hydrologic
connection between the mainstem San Juan and Harbor Head Lagoon.
These channels are not principal distributaries, and are not carrying a heavy load of
sand, so they would not necessarily deposit sediment and create new land, as
implied by the Thorne report when it states that “no channel has linked the river to
the southern tip of the Harbor Head Lagoon since the genesis of that water body
over 230 years ago” (Vol. I, p. 311). The Thorne report’s repeated insistence that the
eastern shore of Harbor Head has not changed position has not been demonstrated
by systematic overlap of sequential maps. It has so far been only asserted. The
Thorne report’s theory is that any flow from the Río San Juan would have so much
sediment that it would quickly fill up the Harbor Head Lagoon. However, these
secondary distributaries are not carrying the main flow of the river, and they would
be more likely to transport finer‐grained suspended sediment, while the main load
of sand would follow the main channel of the San Juan. The bed of Harbor Head
Lagoon is undoubtedly shallower as a result of sediment settling out over the
decades, but there is no reason to assume that any such flows would have
completely filled in Harbor Head Lagoon with sediment.
By definition, distributaries carry water away from the main channel in multiple
directions. This includes flowing into Harbor Head Lagoon. Without some sort of
levee or dam to prevent it, water would naturally flow from the mainstem Río San
Juan downhill into the Harbor Head Lagoon through the Caño, through the unnamed
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distributary 500 m to the north (described above), and possibly through other such
distributary channels that are less obvious on the aerial imagery.
2.6 Distributary Channels on Historical Maps
In its historical analysis, the Thorne report (pp. 325‐357) repeatedly asserts that
historical maps and recent aerial imagery do not show a channel linking the Río San
Juan with the southern part of Harbor Head Lagoon. This assertion is repeated
multiple times, presumably to support the legal position of Costa Rica regarding the
location of the border. As discussed below, at least two important points can be
made. First, the Thorne report does not include all available maps, but rather leaves
out at least one map that clearly depicts the Caño as connecting the Río San Juan
with Harbor Head Lagoon. Second, the fact that a given channel is or is not depicted
on a historical map may have more to do with the purpose and focus of the map
than the existence of a channel. Similarly, whether a given feature shows up on
aerial imagery is influenced by factors such as sun angle and the optics of the aerial
camera and landscape.
The Thorne report presents an impressive collection of maps, but these maps do not
include any maps or aerial images depicting conditions between 1899 and 1961, a
gap of over 60 years. Perhaps most relevant to the analysis is the fact that the
collections of maps presented is selective. For instance, the Thorne report does not
present a 1949 map by the Costa Rican Geographical Institute, which clearly shows
the Caño channel connecting the Río San Juan with Harbor Head Lagoon (see Figure
3). This map would have been important to fill the over 60‐year gap in observations,
so its omission seriously undermines the credibility of the analysis.
Figure 3. 1949 map by the Costa Rican Geographical Institute. This map clearly
shows the Caño channel connecting the Río San Juan with Harbor Head Lagoon.
Map submitted to the International Court of Justice by Costa Rica as Annex 176
to its Memorial.
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It is also notable that the 1961 “satellite” image presented in the Thorne report is
not very clear. An aerial image obtained from the US Government (Project 55 AM73,
Roll 141, Line 64, Photo 5881, Scale 1.60000, Date 12 Jan. 1961) provides a clearer
view of the situation, and shows the lower half of the Caño channel very clearly (see
Figure 4).
Figure 4. Aerial image obtained from the US Government. Project 55 AM73, Roll
141, Line 64, Photo 5881, Scale 1.60000, Date 12 Jan. 1961. Presumably the
same 1961 image included by Professor Thorne in his report, this version of the
image provides a clearer view of the situation, and shows the lower half of the
Caño channel very clearly.
This is a better quality image but appears to be from the same source as the image
presented in the Thorne report, but the latter does not indicate the source of the
image so it is not possible to confirm the images are from the same source. (As
noted above in Section 2.2, it is likely that the 1961 image is an aerial photograph
rather than a satellite image.) Another image (evidently also from 1961) is at a
smaller (i.e., less‐detailed) scale, but when enlarged appears to show two features
extending the entire distance from Río San Juan to Harbor Head Lagoon: one is a
linear feature to the south of the Caño, also visible on the other 1961 image; the
second is the Caño, just to the north. The Caño’s less linear course is clear near
Harbor Head Lagoon, but on this image can also be seen to extend westward. This
image is labeled “IGN 1961” and is presented on p. 13 of Astorga Gattgens, in “Grave
riesgo de daños ambientales irreversibles por el trasvase del Río San Juan en la Isla
Calero, Caribe Norte, Costa Rica” (2010) (see Figure 5). The difference between
these two images, evidently from the same year, could be due to different lighting
conditions, characteristics of the aerial camera, or other factors.
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Figure 5. Another aerial image (evidently also from 1961) shows the Caño
extending the entire distance from Río San Juan to Harbor Head Lagoon. This
image is labeled “IGN 1961”, and was presented on p.13 of Astorga Gattgens, in
Grave riesgo de daños ambientales irreversibles por el trasvase del Río San Juan
en la Isla Calero, Caribe Norte, Costa Rica (2010).
The Thorne report makes much of the fact that some historical maps do not depict
the Caño in the south end of the Harbor Head Lagoon. However, this can often be
explained by the focus or interest of the map maker being elsewhere, usually to the
west, where boats would anchor or attempt to navigate up the river through the
active, principal distributaries. This is well illustrated in the map of Greytown
Harbor of 1850 (presented on p. 334 of the Thorne report). Since the main
navigation routes were to the west, up the main channel of the San Juan, features
not directly pertinent to the principal navigation route could be included or not,
depending on the map‐maker’s interest as well as his available time and resources.
However, the fact that the Costa Rican Geographical Institute map clearly shows the
Caño in 1949 demonstrates that there was a channel there at that time.
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2.7 Breaching the Barrier Spit
The Thorne report theorizes that flow into Harbor Head Lagoon via the Caño would
necessarily have breached the beach lagoon, and that the barrier has never
breached in the past, asserting: “Had a substantial volume of water discharged from
the Río San Juan into any part of the Harbor Head Lagoon…this would have led to
breaching of the barrier beach. The fact that the barrier beach appears to have
remained intact is further evidence that no channel linking the Río San Juan to the
Harbor Head Lagoon has existed within the last 50 years” (Vol. I, p. 356).
First, it has not been established that the barrier has never breached, and thus the
Thorne report’s statement that the barrier has remained “intact” is an unsupported
assertion. A set of historical maps and aerial images presents conditions as
recorded at the time of the mapping or remote sensing, but does not necessarily
inform about the behavior of the barrier spit during intervening months and years.
As discussed below, barriers would be more likely to breach during times of strong
sea waves or river floods. Field mapping is unlikely to be conducted during such
conditions, and aerial or satellite imagery would be obscured by clouds during
severe storms. Thus, temporary lagoon breaches would be unlikely to be recorded
by maps or remotely‐sensed images. Rather, the inlets created by such breaches
would likely have closed from longshore transport of sediment by the time the
conditions were recorded.
It is normal for barrier spits that are closed most of the time to breach as a result of
flooding streams or strong coastal waves. The dynamics of barrier spits are
complex, involving the longshore transport of sand, energy of sea waves, geometry
of the coast, and the tidal prism (the volume of water exchanged on each tidal cycle),
as well as the volume of freshwater water discharged (Johnson 1973).
As the Thorne report does not define “substantial volume of water”, its statement is
vague and difficult to critique. If by “substantial volume of water” the report means
the main flow of the Río San Juan, then the statement is probably correct. If the
main flow of the Río San Juan were to shift from its current course and flow into
Harbor Head Lagoon, then it could breach the barrier spit during high flow, and
would cause other changes to the delta geography. However, there is a significant
difference between saying this and asserting that “no channel” has linked Río San
Juan with Harbor Head Lagoon within the last 50 years. It is most likely that the
delta of the Río San Juan behaves as other deltas, such that its multiple distributary
channels carry overflow away from the Río San Juan, including into Harbor Head
Lagoon.
The Thorne report’s assumption that water flowing into Harbor Head Lagoon would
necessarily cause the barrier to breach is incorrect. For one thing, the Lagoon
appears to have a hydrologic connection to Greytown Harbor to the west, via a
channel behind the barrier spit, through which water flowing into the Lagoon could
be offset by outflow to the sea. Although the contrast is so high that it is unclear on
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some aerial imagery, this hydrologic connection appears to have persisted over time.
This indicates that as Harbor Head Lagoon receives water from Río San Juan, it can
discharge these inflowing waters through (and up to the capacity of) the outlet
channel. The important consequence is that Harbor Head Lagoon has a ‘pressure
relief valve’ so that it can receive water flowing from the Río San Juan without
building up such elevation that it would breach the barrier spit.
Observations of coastal lagoons elsewhere confirm that many such lagoons that
receive freshwater inflow have barrier spits that remain intact in all but very wet
years or large coastal storms, and that whether an inlet closes or stays open
depends in large measure on the tidal prism and wave power of the offshore waters
(Johnson 1973, Goodwin & Williams 1991, Goodwin 1996, Battaglio et al. 2007).
An interesting point (noted below in Section 4) is that Ramsar (2010) predicted that
flow through the cleared Caño would cause the barrier to breach and result in
“partial or total loss” of Harbor Head Lagoon “within…one year” of the report (Vol. II,
p. 126). This prediction was in error. The breaching predicted by Ramsar (2010)
did not occur.
Finally, there is the question of the ecological consequences of breaching the barrier
and thereby opening Harbor Head Lagoon to circulation of water from the
Caribbean Sea. As noted below, the barrier spit enclosing Harbor Head Lagoon has
been open to the sea in the past, resulting in a different ecosystem. No scientific
basis has been presented to demonstrate that a closed lagoon is ecologically
superior to an open lagoon; in fact the latter are highly valued in many
environments (e.g., Goodwin and Williams 1991, Battaglio et al. 2007).
2.8 Caño and Trees
The Thorne report’s theory (pp. 376‐377) that the presence of two tree species,
Yolillo (Raphis taedigera) and Sangrillo (Pterocarpus officinalis) demonstrate that
this was not a channel is unconvincing. The Thorne report states: “It is unlikely that
either of these species took root in the bed of a pre‐existing stream because the
buoyancy of their seeds greatly decreases the chances of successful sub‐aqueous
rooting, especially in flowing water” (Vol. I, p. 376). However, Pterocarpus officinalis
is known to prefer wet areas, including seasonally or perennially wet areas, and
often forms pure stands adjacent to mangroves (Smithsonian Tropical Research
Institute website, accessed 2012).
Similarly, MEET (2011) acknowledges that Pterocarpus “prefers lowland areas
between 0 and 300 metres above sea level, semi‐flooded by running fresh water or
periodically flooded, or alluvial banks…” (Vol. II, p. 280). Thus, the assertion that the
buoyancy of the Pterocarpus seeds would prevent them from establishing in a
channel such as the Caño is inconsistent with the occurrence of these trees in such
wet environments.
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The Thorne report quotes extensively from Araya‐Montero (2010, 2011) regarding
the age of the trees on the Caño site, repeating the assertion in those reports that the
trees felled onsite included individuals estimated to be 248 years old. The Thorne
report does not reconcile this assertion of tree ages with the historical evidence that
the “micro‐delta” on which these trees were established does not exist on the
earliest maps, from the late 18 th century, but instead first appears on maps from
1832, which would make it impossible for the trees to be 248 years in age. Within
the field of fluvial geomorphology, it is standard practice to collect data on the age of
trees established on a given surface as a basis to establish the minimum age of the
surface (Hupp and Bornette 2003). Here we can use what we know from historical
maps regarding the relatively young age of the land surface to constrain possible
ages of trees established there.
More importantly, the estimates of tree ages are based on observations made
elsewhere, then applied to this site. The slower the growth rate assumed, the older
a tree of a given diameter is estimated to be. Growth rates for a given species of tree
can vary enormously, depending on site conditions such a soil moisture, depth to
water, soil characteristic, hydrologic setting, and whether the trees are establishing
on fresh surfaces where they can achieve maximum growth rates or are instead
growing in long‐established forests, in which they must compete for light and
nutrients with long‐established neighbors.
The critical question is whether the growth rates taken from other sites in Costa
Rica can be applied to the Caño site. Are conditions sufficiently comparable to apply
these rates from elsewhere? Here the reports by Professor Thorne and Araya‐
Montero fail us, as they present no environmental data that would allow the reader
to judge whether the sites from which the growth rates were obtained are
sufficiently comparable to the Caño site to allow the growth rates to be applied.
One critical factor is whether the trees are establishing on freshly cleared or
deposited surfaces or within a long‐established forest. Based on information
presented by Araya‐Montero (2010), “unmanaged forests have a yearly growth rate
of 0.64 cm/year, whereas disturbed forests have a yearly diameter growth that
reached 1.17 cm/year” (Vol. II, p. 52). The trees along the Caño would be
establishing on surfaces deposited in the late 18 and early 19 centuries, and later
as deposition continued. Thus these trees would likely have maximum growth rates,
and as per Araya‐Montero (2010), these growth rates could be twice those of long‐
established forests. Accordingly, the growth rate of 5 mm/year presented by Araya‐
Montero (2010) (presumably measured in established forests) is probably half of
the real growth rate. If we assume a growth rate of 10 mm/year, that would halve
the age estimates for the largest trees to about 125 years. Thus, based on the
available information, the maximum tree ages presented by Araya‐Montero (2010)
and the Thorne report appear to be exaggerated.
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While the Thorne report (Vol. I, p. 364) refers to a “scientific analysis performed” by
Araya‐Montero (2010), it does not address the critical question of whether the
growth rates taken for different sites elsewhere are applicable at the Caño. Simply
asserting that an analysis is “scientific” does not make it so. (This is especially true
in the case of Araya‐Montero (2010), which clearly acknowledged that it is not
objective, stating explicitly that its aim is to “prove” that the Caño did not exist.) It
would be far more convincing if the reports were to disclose the critical information
about the environmental setting of tree growth rate data so that the reader could
make an informed judgment.
2.9 Disturbance to the Caño from Clearing
The area cleared for the cleaning and dredging of the Caño is estimated in the
Thorne report at a total of 6.94 ha (0.48 + 2 + 3.46 ha) (Vol. I, p. 360). However, to
put this disturbance in perspective, Costa Rica is undertaking a project to build a
road along the south bank of the Río San Juan. As discussed below, the area directly
affected by the road construction exceeds 600 ha, an area roughly 100 times greater
than the area disturbed by the Caño clearing. At the time when Professor Thorne
was measuring the area disturbed by clearing the Caño, a far greater area had been
disturbed along the Costa Rican bank of the Río San Juan upstream, yet this fact is
never mentioned in the Thorne report. If the road continues downstream as is
evidently the intention of the Costa Rican government, the extent of impact will be
greater.
2.10 Impacts of Clearing the Caño
The Thorne report acknowledges that the impacts of clearing the Caño have been
minor and short‐lived: “the short‐term impacts of the ‘Caño’ on the hydrology,
hydraulics, water quality, and sediment dynamics were small or negligible” (Vol. I, p.
387). The report also predicts that “the longer‐term impacts of the Caño on the Río
San Juan will, like the sort‐term impacts, be small or negligible” (Vol. I, p. 387).
However, the report (Vol. I, p. 386) warns ominously of future impacts:
The indirect impacts on the Río San Juan resulting from the river’s
morphological and environmental response to diversion of some of its
flow and sediment load into the ‘Caño’ are more difficult to assess
because there is the potential for positive feedback loops operating in
the fluvial system to magnify them locally, promulgate them both
upstream and downstream, and perpetuate them through time. The
existence of these complex process‐response mechanisms means that
the potential exists for impacts that initially appear minor to trigger
non‐linear process‐responses that amplify rather than dampen their
effects on channel forms, habitats, and ecosystem. (Sear et al. 2010)
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The complexities make it necessary to assess the indirect impacts of
the ‘Caño’ not only in the short‐term (i.e., during and immediately
following its construction) but also in the subsequent months and
longer‐term future. In the latter context, assessment of the potential
for future impacts and responses must include consideration of the
possibility of further actions by Nicaragua to re‐excavate or enlarge
the ‘Caño’.
This passage includes much jargon from fluvial geomorphology, such as “positive
feedback loops”, “complex process‐response mechanisms”, and “non‐linear process‐
responses”. What does all this mean in plain English? As stated it is very vague
indeed and says almost nothing concrete. But drawing on other passages in the
report (e.g., Vol. I, p. 406), the reader can infer that the Thorne report means to say
that if flow into the Caño increases, it could erode the channel such that it attracts
more flow, in turn attracting even more flow (“positive feedback loops”), until the
Caño diverts the main flow of the river from the current channel. This would, of
course, trigger other changes, and we cannot predict them all (a “complex process‐
response”). And whatever the changes are, they might not be linear functions of
whatever variable they respond to: i.e., if diversion from the mainstem San Juan
results in a 10% drop in flow in the mainstem San Juan, that might result in more
than a 10% increase in sedimentation in the San Juan, helping to drive still more
flow into the Caño, which might ‘tip’ the scales such that all the flow goes down the
Caño (a “non‐linear process response”).
The Thorne report (Vol. I, p. 406) also speaks of the ‘tipping point’ and the dire
consequences if it is reached:
In the “worst‐case” scenario, the diverted water might scour the Caño
sufficiently for the balance of flow at the bifurcation to reach the
tipping point, triggering an avulsion of the greater part of the flow to a
new course emptying into the Caribbean Sea via a semi‐permanent
breach in the barrier beach at the Harbor Head Lagoon.
The rapid and unprecedented changes to hydrologic, hydraulic,
sedimentary, nutrient, water quality, and salinity conditions resulting
from such a radical shift in the flow would certainly cause serious and
irreversible morphological and environmental degradation…
It is notable that the barrier spit enclosing Harbor Head Lagoon has been open to
the sea in the past, under natural circumstances. This condition entails circulation
of sea water into the lagoon and results in a different ecosystem, but the Thorne
report presents no scientific argument to show that the closed lagoon is ecologically
superior to an open lagoon. Indeed, in many environments, there is considerable
research to see how to keep such coastal lagoons from closing (which can occur as a
consequence of reducing the tidal prism, i.e., the volume of water that flows in and
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out on the tidal cycle, and whose currents can keep an inlet channel scoured
open)(e.g., Goodwin and Williams 1991).
If the Harbor Head Lagoon became open to the sea, there would be more changes to
the west, where the main channel debouches. Here reduced (or virtually
eliminated) flows would result in ecosystem changes. Whether they were “good” or
“bad” is really a matter of judgment, as the changes will benefit some species and
disadvantage others.
Thus, the Thorne report’s warning of “serious and irreversible environmental
degradation” seems exaggerated. The Thorne report predicts that left alone, the
Caño will continue to recover, but warns that any maintenance of the Caño could
have dire consequences.
The non‐linear complex response about which the Thorne report warns so
ominously is not a serious threat. (This is also acknowledged by the report.) The
flow through the Caño would be small in any event, and unless there were some
blockage in the mainstem San Juan that forced most of the water to find alternate
routes, there is no reason to expect that the Caño would attract the main flow of the
Río San Juan. The hypothetical capture of the Río San Juan by the Caño, and the
inflated language used to describe the possible effects, seem to exaggerate the real
likelihood and consequences of such a channel change. The fact that one of the main
consequences, breaching of the barrier spit of Harbor Head Lagoon, would simply
bring the lagoon back to a former situation of being connected to the Caribbean Sea,
suggests that the consequences are perhaps less dire than the ominous words
suggest.
2.11 Impact of Meander Cutoff
The Thorne report is critical of the artificial meander bend cutoff in the Río San Juan
just upstream of the inlet to the Caño. Arguing that, in combination with clearing
and dredging the Caño, it increases the danger of inducing a shift in flow and
sediment from the main channel of the Río San Juan and into the Caño, the report is
replete with dire predictions of possible future impacts that could result from
completing a second meander cutoff, employing the same scientific jargon to paint a
picture of ominous consequences (Vol. I, p. 404):
The indirect impacts on the cutoff resulting from the river’s
morphological and environmental response to artificial channel are
more difficult to assess because there is the potential for positive
feedback loops operating in the fluvial system to magnify them locally,
promulgate them both upstream and downstream, and perpetuate
them through time. The existence of these complex process‐response
mechanisms means that the potential exists for impacts that initially
appear minor to trigger non‐linear process‐responses that amplify
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rather than dampen their effects on channel forms, habitats, and
ecosystem (Sear et al. 2010).
The complexities make it necessary to assess the indirect impacts of
the cutoff not only in the short‐term (i.e., during its construction), but
also in the subsequent months and the longer‐term future. In the
latter context, assessment of the potential for future impacts and
response must include consideration of the possibility of further
actions to cut‐off a second bend.
This passage, with its impressive jargon and boilerplate warnings of “non‐linear
process‐responses”, is virtually identical to the earlier passage (from Vol. I, p. 386)
about the clearing of the Caño. The only change is that a new ‘action’ has been
inserted into the sentences, with the meander cutoff substituting for the Caño
clearing. The criticisms above apply to this version of the passage as well, with the
note that in this case, the Thorne report acknowledges that the meander cutoff did
not induce negative changes, but warns against cutting off a meander upstream,
stating that this additional change could push the Río San Juan to the tipping point.
2.12 Dredging Impacts
The dredging program is intended to improve navigation along the Río San Juan by
excavating a channel “2.0 meters deep, 30 meters wide at the upper section, and 20
meters wide at the lower section” (Environmental Impact Study for Improvement of
Navigation in the San Juan River in Nicaragua, translation, p. 2, sec 2.1). Originally
the dredging was intended to extend over 42km, but because of budgetary
constraints, has been reduced to 32.8 km or less. The Environmental Impact Study
(CORASCO 2006) identifies 24 sites for disposal of dredge material, the total volume
of which sums to 1.7M m 3. The dredging program is notable for its small scale. Its
impacts were anticipated in an Environmental Impact Study, and disposal sites for
dredge material were chosen from sites already devegetated and disturbed
(CORASCO 2006).
In establishing background for its critique of the dredging program, the Thorne
report states that because the river follows the Hess Escarpment Fault, and because
of the fault’s sense of movement, the San Juan River below the bifurcation (on the
upthrown fault block) is doomed to receive less flow than the Colorado distributary
(on the downdropped fault block). But if one follows the Thorne report’s logic, an
interesting implication is that flow to the San Juan distributary might decrease so
much that the channel silts up and becomes abandoned. If this occurs, flow to the
currently active distributary mouths into Greytown Harbor would be essentially cut
off, depriving habitats there of freshwater inflow upon which they now depend. The
Thorne report anticipates such a loss of flow to the current distributary mouths in
the event of diversion of the Río San Juan flow via the Caño into Harbor Head
Lagoon. Regarding such an event, the Thorne report warns of:
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serious and irreversible morphological and environmental
degradation; not only in the channel and micro‐delta of the Río San
Juan, the area of the Greytown Lagoon currently fed by water and
sediment flows in the Río San Juan, and the coastal zone that presently
receives freshwater, silt, and nutrients supplied by the river on its
natural alignment; but also the Harbor Head Lagoon, wetland of the
Isla Portillos, and the coastal zone, including the possibility that
adverse environmental impacts might extend as far south as Uvita
Island and Cahuita National park in south‐eastern Costa Rica...(pp.
406‐407).
Given the report’s prediction that flow in the San Juan distributary is declining, and
given its stated concern for the “devastating” consequences that could result from
abandoning the current mouth of the Río San Juan, it would follow that perhaps
some steps should be taken to improve flow conditions in the San Juan distributary.
It would logically follow that dredging the channel might be such a step to prevent
abandonment of the San Juan distributary, but this next step in the logic is not
considered in the Thorne report.
The Thorne report also discusses in great detail the appearance of the channels of
the San Juan and Colorado distributaries on the maps from 1780, 1840, and 1895,
drawing conclusions about relative water and sediment loads based on the mapped
abundance of islands in the two forks of the river. The Thorne report presents a
th
complicated theory that the late 18 century San Juan distributary “was, for
whatever reason, receiving water that was, proportionately, less heavily laden with
sediment than that in either the river upstream or the Río Colorado downstream”
(Vol. I, p. 430). The Thorne report does not specify how this could occur, saying any
such explanation would be “highly speculative”. The report then asserts that “by
1848 the situation had reversed, with the Río San Juan clearly represented as being
braided, while the Río Colorado is shown as having a single‐thread, sinuous
planform…It may be inferred that the proportion of the coarse fraction of the
sediment load…supplied to the Río San Juan had increased, while that supplied to
the Río Colorado had decreased” (Vol. I, p. 431).
While the study of the historical maps for such indications of river form can be a
valuable tool, there is a danger of over‐interpreting the patterns seen. It is possible
that the map makers were carefully drawing each individual sandbar, as implied by
the Thorne report’s interpretation, but it is also possible that the map makers drew
in sand bars in an ‘impressionistic’ way to indicate that the channel was sandy,
shallow, and filled with numerous bars. We do not know whether the maps were
made at low water or high (which would completely change the exposure of bars),
or whether the different channels were even mapped at the same time. And it is
possible that later mapmakers relied on earlier maps to ‘fill in’ parts of the river that
they did not have time to visit. Thus, the Thorne report’s theory of the evolution of
the two distributaries is mostly speculation.
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The Thorne report presents estimates of sand transport capacity in the Río San Juan,
which it attributes to ICE (Costa Rican Institute of Electricity), but the cited report
concerns ‘flow behavior’ in the bifurcation rather than sediment transport. The
calculations of sand transport rely on grain size distributions stated to be from the
Colorado River, but as noted above, the provenance of these samples is never
disclosed. The Thorne report (objectively read) would imply that Professor Thorne
collected the samples, but the date of sample collection precedes his visit in July
2011, so they must have been collected by an unidentified third party. In any event,
the calculated annual sand transport rate is presented in the Thorne report as
150,000 m 3/y (Vol. I, p. 441). The report then states: “Recognising that sediment‐
transport calculations are subject to considerable uncertainty, reasonable lower‐
and upper‐bound estimates would be 140,000 and 160,000 m /y, respectively” (Vol.
I, p. 441). In fact even if the report’s application of the Einstein equation is sound
and the input data are reasonable, the uncertainty in the result would be much
greater. The narrow range reported implies a certainty in the results that is not
justified, and could easily mislead a reader not familiar with the sediment transport
literature.
The Thorne report relies on a report by Avila (2010) (a report that has not been
made available for independent review), for estimates of flow through the two
distributaries. The Thorne report establishes that flow was modeled using the HEC‐
RAS program (Vol. I, p. 443), a standard one‐dimensional flow model, evidently
using existing cross sections of the San Juan above the bifurcations and both
distributary channels (Vol. I, p. 443, Table II.1).
The principal problem with the HEC‐RAS modeling is that the conditions modeled
do not correspond to the actual dredging project, but are of much larger dimensions.
According to the tables presented on p. 443 of the Thorne report, three scenarios
were modeled, but all much larger channels than the dredging project is creating:
widths of 120, 150, and 180 m, depths from 5.75 to 7.75 m. The widths appear to
come completely out of the blue, with no relation to the dredging project. The
depths appear to reflect dredging depths on top of the reported pre‐project depth of
4.75 m in the San Juan distributary. However, if the channel of the San Juan
distributary were actually 4.75 m deep, there would be no need for the dredging
project. This raises questions about the source of the cross section dimensions used
for the San Juan tributary in this analysis. Was it based on actual field surveys? If so,
where exactly was the channel surveyed? Perhaps it was surveyed at an especially
deep point that would not be representative of the river as a whole. Or was it not
surveyed, and its dimensions inferred?
Here failure to disclose in sufficient detail the methods employed and the source of
input data makes it impossible to judge the results. However, in any event, the lack
of the basic supporting information that would be expected in a scientific study
raises doubts about the validity of the exercise, and severely undermines the
credibility of the results presented.
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The three scenarios modeled by Avila (according to the Thorne report) are
unrelated to the actual dredging program. Thus the predictions reported regarding
the percentages of flow diverted into the San Juan distributary are meaningless.
By virtue of its small scale, the impacts of the dredging program are minor, and it is
highly unlikely to cause a significant change in the flow split between the San Juan
and Colorado.
2.13 Sediment Loads from Land Use in Costa Rica
In discussing the sediment loads of the Río San Juan, the Thorne report argues that
high sediment yields from the San Carlos and Sarapiqui tributary basins to the Río
San Juan are natural (Vol. I, pp. 313 & 425). The report acknowledges that
“deforestation and agricultural intensification may have elevated sediment yields
locally,” but asserts that “there is no evidence to suggest that sediment loads in the
main river have increased significantly due to anthropogenic impacts” (Vol. I, p.
313). This statement is interesting for what it does not say. First, in the absence of
long‐term sediment load data or comparable data, there can be no definitive
evidence of changes in sediment load one way or the other. Second, the Thorne
report does not point out that massive land disturbance such as occurred in these
two Costa Rican tributaries could be expected to increase sediment yields
significantly, based on fluvial geomorphic principles and observations in many river
basins around the world. Thus, we would expect sediment loads to respond to the
increased erosion in the surrounding mountainous catchments, unless it could be
shown that the sediment eroded from steep slopes is somehow stored before
reaching the main Río San Juan (e.g., on valley fills or floodplains). Thus, a more
defensible, more objective statement would be to say that there is no evidence that
the expected increased sediment yield has not occurred.
Looking in more detail at the argument, the Thorne report presents Table II.6, which
is labeled “Suspended sediment concentrations measured in tributaries to Río San
Juan” (Vol. I, p. 425). In fact, the table does not present suspended sediment
concentrations, but rather annual sediment yields, which presumably were
calculated from concentrations, rating curves, and annual hydrographs. However,
the source of the data in Table II.6 is not stated, nor are the details of how the annual
sediment yields were calculated or the uncertainties in the results, which are likely
considerable.
The Thorne report then argues that these sediment load data show greater
sediment yield from steep, upper basins due to geology and more rainfall, and
concludes: “These data are important because they prove the point that most of the
sediment load is derived from erosion in the steep, wet but relatively natural upper
and middle parts of the sub‐basins, rather than the lower parts – where
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development for agriculture, ranching, or plantation cropping is more extensive”
(Vol. I, p. 425).
In fact, these data do not “prove” the Thorne report’s assertion at all. It is certainly
plausible and expected that erosion rates would be higher in the higher mountain
areas, where slopes are more vulnerable to landslides and erosion more generally.
Thus, ‘geologic’ erosion would be naturally greater in these areas. However, the
sensitivity of the landscape to disruption, and thus its potential for increased
erosion rates, is commonly greater at high elevation than at lower elevation, in
gentler parts of the basins. Thus, land disturbance could be more concentrated in
the lower parts of the basins (as hypothesized in the Thorne report), but even less
intensive land use in upper catchments could be producing greater increases in
sediment yield by virtue of the more sensitive terrain.
The Thorne report’s argument is an unsupported assertion without substantive
information on the distribution of deforestation and land disturbance, sensitivity of
different parts of the landscape to disturbance, etc. Unless the upper basins were
demonstrated to be completely undisturbed, higher sediment yields derived from
them cannot be ascribed to natural ‘geologic’ erosion alone.
Thus, while it is probably correct that the San Carlos and Sarapiquí tributary basins
have naturally high sediment yields by virtue of their underlying rock type and
geologic structure, the high ‘geologic’ erosion rates do not imply that their sediment
yields could not increase significantly as a result of land‐use disturbance.
2.14 Sediment Loads from Road Construction in Costa Rica
An even more significant cause for increased delivery of sediment to the Río San
Juan may be the still‐ongoing construction of a road running for over 160 km along
the Costa Rican bank of the Río San Juan. The dimensions of the road construction
project have been described by the Costa Rican Minister of Public Works and
Transportation as a minimum road surface area of 14 m, with right‐of way of 50 m
(La Nación, 18 October 2011). Photographs of the road construction project taken
from Nicaraguan airspace across the river show many sites of extensive disturbance,
creating steep eroding slopes that deliver sediment directly to the channel of the Río
San Juan (e.g., Figures 6‐8). These photographs indicate that 50 m is an
underestimate of the actual area impacted by the road construction project.
Multiplying the road length of 160 km by 14 m (absolute minimum direct
disturbance) to 50 m (the official right‐of‐way width, but less than actual
disturbance area visible on many photos) yields between 224 and 800 ha of direct
disturbance from the road. Figures 6‐8 all show raw, eroding slopes. Figure 6
clearly shows tongues of coarse sediment, reflecting the transport of sediment by
surface runoff from the disturbed area directly into the channel. In addition to the
direct disturbance of this massive road construction, there will be the inevitable
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secondary effects of intensified settlement and land use encouraged by the easy
access created by the new road.
Figure 6. Photograph taken approximately 2 km downstream of Tiricias and
2.6 km upstream of Isla Pillares on Costa Rican side of the Río San Juan, 1.1 km
downstream of Lugar San Pablo, and 2.7km upstream of Isla El Glis across the
river in Nicaragua. Presented to the Central American Court of Justice by
FUNDENIC‐SOS/FONDO NATURA and FONARE in “Ruta de la Caretera,” 25
March 2012, photo of site 15. The photograph depicts damage and sediment
impacts from the road construction.
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Figure 7. Photograph taken near Isla Campana, Costa Rica, about 1.6 km
downstream from Lugar Machuca, Nicaragua. Presented to the Central
American Court of Justice by FUNDENIC‐SOS/FONDO NATURA and FONARE in
“Ruta de la Caretera,” 25 March 2012, photo of site 25. The photograph depicts
damage from the road construction.
Figure 8. Photograph taken about 9.5 km upstream of Finca Balanca, Costa
Rica, as measured along the river (8 km straight‐line distance). As measured
from locations on the Nicaraguan bank, the photo location was about 6.6 km
upstream of Lugar Las Cruces and 9.5 km upstream from Lugar Casa Hacienda
(across the river from Finca Balanca). Presented to the Central American Court
of Justice by FUNDENIC‐SOS/FONDO NATURA and FONARE in “Ruta de la
Caretera,” 25 March 2012, photo of site 28. The photograph depicts damage
from the road construction.
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It is worth noting that because this new road runs along the river bank for most of
its length, sediment eroded from the land cleared for its construction has a direct
path into the river channel. In fluvial geomorphic parlance, this would be
considered a sediment source that is well connected to the receiving waters. There
is every reason to believe that this extensive disturbance directly adjacent to the Río
San Juan has contributed substantial volumes of sediment directly into the river,
and that the additional sediment delivered to the Río San Juan is likely to have
consequences downstream.
By the time of Professor Thorne’s site visit and overflight in July 2011, the Costa
Rican road was already well under construction. While it had not reached the
disputed area of lower Río San Juan delta (near the Caño, etc.), it is unlikely that
Professor Thorne would not have learned of such a massive disturbance during his
work in 2011. Either Professor Thorne’s Costa Rican clients did not inform him of
this disturbance, or he chose not to mention it in his report. In the former case, it
indicates that Professor Thorne was not working with complete information, as
already suggested by the fact that his report did not present all the historical maps
available, leaving out the 1949 Costa Rican Geographic Institute map – a critical
omission. In the latter case, leaving out such a potentially important increase in
sediment supply to the river, renders the Thorne report’s geomorphic analysis
incomplete at best. Although the road construction itself had not reached the area
of the Caño, the disturbance was upstream of the areas of concern, so the effects of
the disturbance would readily propagate downstream.
Likewise, the extent of clearing and disturbance by the Costa Rican road is at least
100 times greater than the clearing of the Caño about which Professor Thorne and
other authors have made dire predictions of environmental impact. Put in context
of the much larger road project, the impacts from clearing of the Caño are small
indeed.
2.15 Ominous Predictions of Impact
The Thorne report contains many ominous statements about the severity of impacts
that have occurred, and especially impacts that may occur. As illustrated in the
assertions concerning “positive feedback loops”, “complex process‐response
mechanisms, and “non‐linear process responses” made about the impacts of the
Caño clearing on p. 386 of Volume I and repeated verbatim about the meander
cutoff on p. 404 of the same volume, many of these ominous statements contain
technical terms that could impress the non‐technical reader. However, when the
statements are examined closely, they are seen to be mostly unsupported assertions.
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3. Review of UNITAR/UNOSAT reports:
“Morphological and Environmental Change Assessment: San Juan River Area
(including Isla Portillos and Calero), Costa Rica,” 4 January 2011 (Annex 148,
Vol. II, pp. 137‐146 of the Memorial of Costa Rica) (henceforth “UNITAR
2011a”).
“Update 2: Morphological and Environmental Change Assessment: San Juan
River Area (including Isla Portillos and Calero), Costa Rica,” 3 March 2011
(Annex 149, Vol. II, pp. 147‐155 of the Memorial of Costa Rica) (henceforth
“UNITAR 2011b”).
“Update 4: Morphological and Environmental Change Assessment: San Juan
River Area (including Isla Portillos and Calero), Costa Rica,” 8 November 2011
(Annex 150, Vol. II, pp. 157‐169 of the Memorial of Costa Rica) (henceforth
“UNITAR 2011c”).
3.1 Overall Comments
As these three reports are similar in format, I review them together, pointing out
differences among them.
In contrast to the expectation for scientific papers and reports, the UNITAR reports
do not disclose the report author(s), nor do they summarize the author’s or authors’
technical qualifications. The reports lack rigor, in that they do not clearly detail the
methods used and results obtained. The reports include many statements that
cannot be based on interpretation of satellite imagery, which according to the
reports, was the only method used. These statements that are not founded upon the
analysis of satellite imagery are either speculation or they are based on information
and conclusions received from a third party. Either way, these unsubstantiated
statements undermine the credibility of the reports. Many of the statements betray
a lack of scientific competence in hydrology and fluvial geomorphology, which
further undermines the credibility of the reports. The examples presented in this
review are only illustrative, not comprehensive. Many more of the statements in the
three reports could be similarly scrutinized and debunked.
3.2 Methods
Unlike rigorous scientific papers or reports, the UNITAR reports do not include
distinct, detailed methods sections, nor do they clearly report their methods
elsewhere. The methods stated in the first two reports (UNITAR 2011a, 2011b)
include only statements such as “satellite imagery was reviewed” and “[a]
morphological review of the area was conducted using satellite imagery from
1979…2011” (UNITAR 2011a: Vol. II, p. 140). UNITAR (2011c) includes somewhat
more detailed statements: “Assessment findings were made with a high degree of
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confidence based on a detailed and exclusive assessment of satellite imagery using
traditional imagery processing and photo‐interpretation methods. These findings
have not yet been validated in the field” (Vol. II, p. 160).
While UNITAR (2011a) claims to have reviewed satellite imagery back to 1979, the
reports present and discuss only imagery from 2011. It seems implausible that
UNITAR would have seen nothing worthy of mention on the earlier satellite imagery.
The failure to report observations from its “review” of the earlier imagery, or at
least to explain why it chose not to report on the earlier imagery, is a serious
inconsistency between the stated methods and the “results” presented, which
undermines the credibility of the UNITAR reports.
Of greatest concern are the facts that the reported results include assertions of
information that could not be obtained from the stated methods, and that the
reports include considerable speculation.
3.3 The Soberania
For example, UNITAR (2011a) refers to “an apparent dredging boat” visible on
satellite imagery (Vol. II, p. 140), while UNITAR (2011c) identifies two boats,
describing one dredging vessel as “either a standard suction…or cutter suction
dredger”, and a second as the “dredging vessel ‘Soberania’” (Vol. II, p. 160). The
report is silent on how it identified the second vessel as the “Soberania”. It seems
unlikely that UNITAR could read the vessel name from the satellite imagery alone.
However, if UNITAR were able to do this, it should be described clearly in the
methods section, as this would go beyond ‘traditional’ image processing and photo‐
interpretation. Since UNITAR did not "validate” its results in the field, the reader is
left to conclude that the report includes material that was not obtained by the stated
methods, and that the UNITAR is actually relying on material, information, and
conclusions it received from a third party.
3.4 Signs of Recent Flooding
Another example is the statement in UNITAR (2011a) that “[t]he San Juan River in
fact currently remains stable with no signs of recent flooding in the area, ruling out
ephemeral activity” (Vol. II, p. 140). While some evidence of recent flooding – such
as large debris jams freshly deposited since before the flood, or large erosion scars
that were not apparent prior to a flood – might be visible on satellite imagery, most
evidence of flooding would not be visible from satellite imagery, but would require
field inspection by a hydrologist. Either the authors of the UNITAR (2011a) report
are unfamiliar with the standard hydrological practice for identifying and mapping
high‐water marks from floods and mistakenly believe that these can be deciphered
easily from satellite imagery, or they are reporting information they received from a
third party who visited the site. In the former case, the technical competence of the
authors is undermined. In the latter case, the integrity of the report is severely
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compromised. In either case, UNITAR’s conclusion is directly contradicted by the
Thorne report’s discussion of a flood event that took place in December 2010,
shortly before the first UNITAR study’s publication (Thorne 2011: Vol. I, p. 370).
Likewise the final clause in the statement, “ruling out ephemeral activity” is of
concern. The meaning of “ephemeral activity” is not clear. Strictly speaking, the
sentence is nonsense, because there could be any number of ephemeral activities
that could have occurred between satellite images that would not be recorded.
However, since the first clause refers specifically to “recent flooding”, the reader can
infer that the authors of the UNITAR (2011a) report may have intended to say that
they could rule out “ephemeral” flooding. Normally in hydrology and
geomorphology, the term “ephemeral” is applied to streams that flow only in direct
response to precipitation, such as dry desert washes. As used here, the reader can
only speculate that the term is intended to refer to a flood that had come and gone
before the satellite imagery being described. The authors are obviously out of their
depth in attempting to use hydrologic terminology, which does not increase
confidence in the technical soundness of the report.
3.5 Facilitating Erosion, High Water Velocity
The UNITAR report (2011a) also included these assertions: “Removal of vegetation
along the channel has helped facilitate erosion processes as it develops. This high
rate of erosion is additionally facilitated with the high velocity of water flowing in
from the San Juan River” (Vol. II, p. 140). Neither of these two statements can be
based on interpretation of satellite imagery.
Regarding the first sentence, satellite imagery, no matter how detailed, cannot tell
us whether vegetation removal has or has not “facilitate[d] erosion”. Either the
statement is speculation, or it is based on field interpretation by a third party who
shared the conclusion with the UNITAR (2011a) report authors, who then
incorporated the third party’s conclusion into the report without attribution or
acknowledgement in the methods.
Regarding the second sentence, satellite images alone cannot indicate the velocity of
flowing water. Either the UNITAR (2011a) report authors are speculating about the
velocity of water “flowing in from the San Juan River”, or the statement is based on
field observation by a third party and incorporated without attribution or
acknowledgement in the methods section. Moreover, the vague reference to “the
high velocity of water” raises questions, such as what velocities would be
considered “high”. If a third party has, in fact, measured water velocities in this site,
why has this fact not been disclosed, and the information shared?
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3.6 Speculation on intentions and consequences of dredging
All three reports include statements speculating about the intentions behind the
dredging and its geomorphic consequences. These include the last paragraph of
UNITAR (2011a), which speculates on “an apparent active attempt to redirect the
San Juan River,” and asserts: “If completed this cut in the meander will redirect the
San Juan River approximately 175 m to the west, and will likely significantly
increase the water velocity downstream. Such a velocity increase will also increase
the amount of water entering the new channel, thus likely widening the channel due
to an acceleration of the erosion process resulting from the increased water velocity
and inflow” (Vol. II, p. 140).
These statements do not report results from satellite image analysis. Rather they
constitute speculation regarding the intentions of observed dredging and the river’s
response. As shown from other passages in these reports, it appears that the
anonymous authors of the UNITAR reports do not possess technical qualifications in
fluvial geomorphology and hydrology. Such speculation by unqualified authors
should have been clearly identified as such in these reports. As it has not been so
identified, it undermines the credibility of the reports as a whole. It is notable that
the dire predictions stated above did not come to pass. The meander was completed,
but the predicted consequences did not occur. It did not “redirect the San Juan
River”. We do not know if the meander cut increased water velocity, as that would
require measurements on site, but the prediction that the expected velocity increase
“will also increase the amount of water entering the new channel, thus likely
widening the channel” did not come to pass. In contrast, as reported in UNITAR
(2011c), by fall 2011 the cleared Caño channel had narrowed and less water flowed
through it (Vol. II, pp. 160‐163). However, in UNITAR (2011c), the authors do not
acknowledge that the prediction in their earlier report had been in error.
3.7 A New Meander Cut Within the Next Few Weeks
UNITAR (2011b) speculated about another meander bend, stating “it is probable
that this will be the location for a new meander cut along the San Juan River within
the next few weeks” (Vol. II, p. 150). The specificity of this prediction is remarkable,
not only predicting where, but when: within a “few weeks” of the report, dated 3
March 2011. Upon what information are the UNITAR (2011b) authors basing this
prediction? Intentions of a dredging program cannot possibly be gleaned from
analysis of satellite imagery. It is notable that once again, the events predicted did
not come to pass. UNITAR (2011c) reported that as of 25 October 2011, there had
been “no further activity in either river dredging or vegetation cover removal…”
(Vol. II, pp. 163 & 168). However, in UNITAR (2011c), the authors do not
acknowledge that the prediction in their earlier report had been in error.
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3.8 Conclusion
The examples of statements that cannot be based on interpretation of satellite
imagery presented here are only illustrative examples of statements that occur
throughout these reports. These statements are unsubstantiated, in that they are
not based upon the satellite imagery analysis, which ostensibly should be the only
basis for results and conclusions in these reports. In one case, the identification of a
dredging boat by name, the clear implication is that the authors of the UNITAR
(2011c) report are using information and conclusions received from a third party.
In other cases, the statements are speculations, many of which betray a lack of
scientific competence in hydrology and fluvial geomorphology. These
unsubstantiated statements seriously undermine the credibility of the UNITAR
reports. Likewise, the lack of scientific rigor, failure to disclose authorship, failure to
report methods and sources, and failure to acknowledge prior predictions that are
demonstrably in error all reflect badly on the UNITAR reports. By the standards of
science, the UNITAR reports can be dismissed as unreliable and unscientific.
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4. Review of Ramsar Secretariat, “Ramsar Advisory Mission Report No. 69:
North‐eastern Caribbean Wetland of International Importance (Humedal Caribe
Noreste), Costa Rica,” 17 December 2010 (Annex 147, Vol. II, pp. 83‐136 of the
Memorial of Costa Rica) (henceforth “the Mission Report”).
4.1 Overall Comments
There seems to be little point in a detailed review of the 2010 Ramsar Mission
Report. By its own admission, the report is based on no independent field work, and
no independent data collection or analysis, but relies exclusively on information and
conclusions supplied to the Mission by the Costa Rican government. While there are
numerous specific points that could be made about inappropriate use of technical
terminology or misunderstandings of science, the report can be dismissed based on
its lack of independent objective data collection, analysis and assessment.
In contrast to the expectation for a scientific paper or report, the Mission Report
does not disclose the report authors, nor does it summarize the author’s or authors’
technical qualifications.
4.2 Lack of Independent Data Collection and Analysis
The first 20 pages of the report consist mostly of introductory material. The actual
methods used by members of the Mission are described on pp. 100‐101 of Volume
II:
RAM members reviewed and analysed the supplementary information
provided by the Government of Costa Rica and various participating
bodies. During the visit, other relevant reports and documents were
also consulted and these are listed in the bibliography. Technical
meetings with various interested parties were also held, including
with local and regional authorities…The Mission intended to conduct
an overflight in the Humedal Caribe Noreste area, but due to weather
conditions and safety reasons, it was not possible to do so.
What is remarkable about this ‘mission’ is what the members did not do. They did
not visit the field site; they did not independently collect data; they did not even
view the site from the air; they conducted no independent analysis; and they did not
expose themselves to any viewpoints other than those of the Government of Costa
Rica. According to the section entitled “Work Programme”, the entire ‘mission’ was
only three days (including the cancelled overflight), evidently all spent in the capital
in meetings with Costa Rican government officials and staff (Vol. II, pp. 133‐134).
The Mission Report asserts twice that “the report…is not to pass judgment on
activities being taken in the area…but…to carry out an impartial and objective
technical analysis of the situation without alluding to any political considerations”
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(Vol. II, pp. 87‐88 & 100). This position would be much more convincing if the
Mission had undertaken independent data collection and analysis. Instead, the
Mission relied exclusively on second‐hand information presented by the Costa Rican
government, which undermines the claims of objectivity and impartiality.
The Mission Report described the basis of its findings thusly: “The background
information provided by the Ministry of Environment, Electricity, and
Telecommunications of Costa Rica [MEET]…on the events that took place in the area
of Isla Portillos….highlights the following…” (Vol. II, p. 117). The Mission Report
then lists dredging, deposit of sediment, removal of vegetation, and flooding, finally
acknowledging at p. 117 of Volume II that it received its conclusion directly from the
Costa Rican government:
The Ministry of Environment, Electricity, and Telecommunications
stated in its communication that the purpose of the changes was to
prepare the area for the construction of an artificial canal to unite a
body of fresh water with a body of salt water…thus changing the role
of the sandbanks to control the sediment flux that is currently carried
by the river, and causing a rupture in the balance of the wetland.
Thus, in its report, the Mission acknowledged that: (1) it conducted no independent
data collection and analysis; (2) that it relied exclusively on material obtained from
the Costa Rican government and meetings with Costa Rican government officials;
and (3) that the Costa Rican government provided the Mission with its conclusion,
namely that the activities they were to investigate had caused “a rupture in the
balance of the wetland.”
4.3 Lack of Sound Scientific Understanding
In many passages, the Mission Report reflects a lack of sound scientific
understanding. A comprehensive critique seems pointless, because the entire
report is of dubious value given its lack of objectivity and independence.
Nonetheless, it may be useful to critique one passage of the Mission Report as
illustrative of its scientific weaknesses.
On p. 120 of Volume II, the Mission Report attempts to describe the formation of the
San Juan Delta thusly:
The formation of the delta in the area assessed was a slow process
that had been developing since the beginning of the Quaternary
period, aided by the particularly powerful dynamics of the San Juan
River. The San Juan river flow and the transportation of sediments
along it, has formed a micro system, creating both the Laguna los
Portillos and the island wetland. The formation of local aquifers in
highly‐permeable porous media with a very shallow groundwater
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level (centimetres to a metre maximum) has given this area very
particular geomorphologic and hydrogeologic characteristics. It is
estimated that thousand[s] of [years] ago the site experienced a
hydrodynamic balance with possible extreme hydrological events due
to hurricanes. However, over the medium and long term, the system
reached a steady state.
This passage includes a number of technical terms, but what does it mean? Taken as
a whole, the paragraph is confusing. Thus, it may be most clarifying to review
individual assertions as follows:
Landscape Evolution
The first sentence states that the delta formation was a “slow process” that began in
the “beginning of the Quaternary period”. The Quaternary period began about 2
million years ago (it includes the Pleistocene and Holocene periods). According to
the geologic history presented on p. 115 of Volume II, the landmass that is now
Costa Rica formed from discrete volcanic islands only 3 million years ago. The
Mission Report does not explain how the landforms evolved so dramatically from 3
to 2 million years before present. The Mission Report indicates that 2 million years
ago the situation was similar to the present situation, with a “slow process” of
formation “aided by the particularly powerful dynamics of the San Juan River.” Yet
over the past 2 million years, the planet experienced repeated ice ages, which drove
changes in sea level exceeding 100 m. When sea level was 100 m lower than
present, would not the landscape have been very different indeed? If the San Juan
River existed in anywhere near its current configuration during ice ages 1‐2 million
years ago (a doubtful proposition), its “powerful dynamics” would be interacting
with a coastline 100 m lower and probably many kilometres to the east. The
authors of the Mission Report were evidently not trained in geology or
geomorphology.
The report of Professor Thorne (2011) paints a very different picture of landform
evolution here. That report presents historical maps dating back to the late 18 th
century that show rapid deposition of the delta lobes, and indicates that most of the
land in question did not even exist 220 years ago.
Thus, the Mission Report assumes a long‐term stability to the landscape that is not
justified based on historical evidence, nor on an understanding of geological and
geomorphological history.
The statement in the second sentence that flow and sediment load of the San Juan
River have formed a “micro system” is meaningless. “Micro system” is not a
standard term in fluvial geomorphology, and if the Mission Report authors intended
it to have some specific meaning, they have not explained what that is. Clearly,
sediment deposited by the San Juan River (with some reworking by coastal waves
and currents) has created the entire delta landform, which would include the lands
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referred to in the Mission Report as “Laguna los Portillos and the island wetland”.
The point of this sentence is not clear.
Shallow aquifer
The third sentence states that “formation” of “local aquifers…with a very shallow
groundwater level…has given this area very particular geomorphologic and
hydrogeologic characteristics.” Again, the point of this sentence is lost on the
professional trained in fluvial geomorphology and hydrology. The sentence seems
to be a string of grand words that says essentially nothing except that groundwater
is shallow, as would be expected in such a deltaic environment. To have any
meaning, the sentence would need to state what is so particular about the site’s
geomorphology and hydrogeology. The non‐specialist reader might be impressed
with terminology such as “highly‐permeable porous media”, but this is simply
jargon. In this case, the term “sand” could be substituted without loss of meaning,
and in fact with greater clarity.
Hurricanes and ‘hydrodynamic balance’
The fourth sentence states: “It is estimated that thousand[s] of year[s] ago the site
experienced a hydrodynamic balance with possible extreme hydrological events due
to hurricanes.” This sentence is challenging for a professional geomorphologist and
hydrologist to decipher. As typical of passive‐voice constructions, it does not say
who is doing the estimating, nor on what basis; rather, the assertion (whatever it
actually means) comes out of the blue.
What is meant by a “hydrodynamic balance”? Again, these are grand words, but
without some supporting explanation, they are meaningless. Does the Mission
Report purport that there was some kind of balance of forces between coastal waves
and river‐supplied sediment? If so, the report should say this. Perhaps it refers to
some other hypothesized balance. However, none of this is convincing when we
recall that the 2011 Thorne report’s historical analysis would indicate this site was
part of the Caribbean Sea “thousands of years ago”.
Finally, what is the relation between any of the foregoing and “possible extreme
hydrological events due to hurricanes”? Are the hurricanes believed to have
affected the submarine environment that probably existed at this site thousands of
years ago, and if so, how would that affect the current landforms and geomorphic
processes? We presume that the Mission Report authors had something in mind,
but without some clue as to what they intended to say, it is impossible to critique
the content, as the report reads more as an incoherent string of words and phrases,
rather than a logical exposition.
As shown by critical examination of the statements in the Mission Report, it appears
that the report’s authors have attempted to make pronouncements far out of their
depth.
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4.4 Exaggerated, Erroneous Predictions of Damage
The Mission Report offers ominous predictions of future consequences of clearing
the Caño, predictions of events that have not come to pass: “It is estimated that
within an approximate period of one hydrological cycle (one year) there will be
partial or total loss of the Laguna los Portillos” as a result of the breaching of the
sandbank between the Lagoon and the Caribbean Sea, and that there will be flooding
in the disputed area, “giving rise to a growing halo of dead vegetation, with a loss of
habitat for terrestrial fauna” (Vol. II, pp. 126‐127). These impacts were predicted to
have occurred within one year of the report date of 17 December 2010. In fact, none
of these predicted impacts have occurred as of July 2012.
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5. Review of Report by Ministry of Environment, Electricity, and
Telecommunications of Costa Rica, “Technical report to Ramsar: Assessment
and evaluation of the environmental situation in the Humedal Caribe Noreste
within the framework of the Order of the International Court of Justice,” 28
October 2011 (Annex 155, Vol. II, pp. 221‐320 of Memorial of Costa Rica)
(henceforth, “MEET 2011”).
5.1 Overall Comments
No doubt the authors of the MEET report are well‐meaning, but their report is not
based on scientific analysis, and its clumsy attempts to use technical terminology
suggest the authors do not possess a firm understanding of the scientific fields
involved. Much of the report is written in a grandiose style, perhaps to give the
impression of importance, but its ominous conclusions about “permanent,
irreversible” impacts are not supported by evidence or sound scientific reasoning.
This is apparently the same report a draft of which the Thorne report (2011) drew
upon for listing environmental impacts, although Professor Thorne’s report implies
that the report was prepared by “Ramsar scientists”, although he cites it as having
been authored by Araya‐Montero et al.
5.2 Lack of Real Scientific Analysis
To its credit, the MEET report includes a detailed methods section (unlike the
UNITAR and Ramsar reports). However, a careful reading of the reported methods
reveals a lack of rigor and specificity. Normally, in scientific work, the methods
section would specify precisely what measurements were done, what samples were
taken, and what analyses were conducted. In contrast, the methods section of the
MEET report uses vague terms almost exclusively. Of the 30 discrete tasks
conducted by MEET, most are described with only vague words such as
“assessment” (9 of the 30), “analysis” (3), “establishment” (of the work team and of
corrections) (2), “work protocol drawn up”, “data examined”, “synthesis”, etc. The
only tasks whose methods are clearly stated are “measurement” of the area where
sediments were deposited (Section 5.4b), “georectification” (Section 5.5h) and
“digitization” (Section 5.5j) of images, which curiously was reportedly done after the
drafting of the report (Section 5.5g).
Thus, review of the MEET report’s stated methods suggests that the report is based
largely on subjective judgment rather than scientific measurement and analysis,
which is consistent with report’s lack of strong, coherent scientific arguments.
As an illustration of the lack of objective, replicable measurement, the report
includes many reports of flow directions (including diagrams), but presents no
measurements of flow (or even systematic estimates using simple techniques such
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as floats and estimates of cross sectional area), as would be expected in a scientific
report.
5.3 Technical Terms Used
The MEET (2011) report is not short on technical terminology. What is missing is
coherence in the use of this terminology. The reader is left with the impression that
the report authors have attempted to use as many technical terms as possible, even
when they do not understand those terms.
Examples of the MEET report using many big words to say little of substance include
the following: “The hydrometeorological situation during the visit was the dry
season…” (Vol. II, p. 244); and “[i]t is important to mention that, given that the
measurements were taken during the month of April, from the hydrometerological
point of view it corresponds to a period of low water levels, i.e., low water flows in
the San Juan River, suggesting that the condition observed could be different during
the rainy season” (Vol. II, p. 249). In plain English, these sentences seem to be
saying only that observations were at low water, and that conditions could differ in
the wet season.
The MEET report refers to a “statistical confidence level of 95%,” but does not
support this with any analysis; it is simply asserted (Vol. II, pp. 285‐286). With
terms such as “statistical confidence level of 95%” prominently featured, a
superficial reading of the MEET report could give the impression that it is based on
scientific analysis. However, upon closer inspection, the report is most notable for
its internal contradictions, clumsy attempts to use scientific terminology beyond the
understanding of the authors, and lack of scientific rigor.
5.4 Misunderstandings of Hydrologic Processes
The MEET report includes much discussion of hydrologic processes, but many of the
statements are not supported by evidence, logic, or a sound understanding of the
relevant scientific fields. For example, the report quotes the Ramsar 2010 Mission
Report’s assertion that “the existing hydrodynamic balance in this area, from the
Pleistocene‐Holocene era (see the section on geology) will be altered, with a
consequent change in water quality of the halocline” (Vol. II, p. 252). The assertion
of a “balance” from Pleistocene‐Holocene time is curious and unsupported. The
landform here did not exist during Pleistocene time, as it was formed by deposition
of the San Juan River only within the last few centuries.
The report includes many paragraphs of text attempting to describe the movement
of surface water, followed by assumptions that the “regional groundwater
directions…follow a similar path”. In fact, regional groundwater patterns can be
quite different from shallow surface drainage patterns. The report’s treatment of
this topic could have been informed (and the text greatly simplified) by reference to
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the principles that surface water flows downhill and that groundwater flows from
higher head to lower head. By surveying surface topography, the report’s authors
could have determined that the land surface slopes from the former edge of the
river channel down to Harbor Head Lagoon along the axis of the Caño. This
topographic gradient can easily explain the surface flow patterns that the report so
laboriously describes. Were the report authors to have installed shallow
observation wells or piezometers, they could easily have determined shallow
groundwater flow directions. To determine regional groundwater flow directions
(about which the report speculates) would require deeper wells and observations
over a much larger area than the report covers.
The report’s Figures 8 (Vol. II, p. 250), Figure 11 (Vol. II, p. 254), and Figure 14b (Vol.
II, p. 260) purport to show the direction of groundwater flow in cross section. A
second figure also labeled Figure 11 on p. 259 of Volume II purports to depict “main
sedimentary sub‐environments and flow directions of superficial and underground
waters”. However, the sedimentary environments are not identified, at least not
using any accepted scientific terms. The diagram also purports to show regional
groundwater flow directions. While the general flow direction – from the Río San
Juan channel towards the Caribbean Sea – would be expected for shallow
groundwater, the basis of this diagram is not presented, nor any explanation given
for the exact meaning of the arrows and other notations.
Many of the report’s statement are not clear in what they are intended to mean, so it
is not possible to evaluate their accuracy. An example is the following statement:
“Surface water runoffs within the delta and the fluvial plains making up the Isla
Portillos are minimal” (Vol. II, p. 293). The delta of the San Juan carries significant
surface runoff, so the statement would appear to be incorrect. The assertion that it
is “minimal” is vague, as the runoff is not compared to anything else (perhaps
“minimal” compared to larger rivers in the hemisphere). What are the “fluvial
plains” referred to as distinct from the “delta” of the San Juan River? The meaning of
this statement is not obvious to a fluvial geomorphologist.
5.5 Sediment Deposition Assumed to be Negative
It is curious that the report seems to assume that transport of sediment from the
San Juan River seaward is an environmental problem (e.g., Vol. II, p. 251). This
attitude may derive from the authors’ lack of geomorphic understanding (as
reflected elsewhere in the document). With an understanding of the geomorphic
history of the region, it is obvious that the entire delta landform was created by
deposition of sediment from the San Juan River. As demonstrated by the historical
maps presented in the Thorne report (2011), most of this land is less than about two
centuries old. There is nothing necessarily pathological about sediment transport
and deposition during periods of high flow, when sediment is naturally transported.
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The report also refers to deposition of dredged sediments as resulting in the
“permanent loss of the ecological conditions existing before the deposit, reason for
which it constitutes an irreversible damage” (Vol. II, p. 260). Given that most of the
landform was developed by deposition only since the late 18 th century, and given
the rapid rate of revegetation observed, the use of the terms “permanent loss” and
“irreversible damage” are not justified by evidence or scientific analysis.
The report includes statements that imply a lack of understanding about sediment
transport: “[U]nder conditions of low water flow in the San Juan River, as at the time
of the visit, there is no hydraulic connection between the river and lagoon, and thus
no resultant deposits of sediments from the river to the lagoon” (Vol. II, p. 250).
Presumably the sediment deposits that the authors were looking for and did not see
would be sand deposits. Low water flows through the Caño would not carry such
sediment. Sediment transport occurs mostly at higher flows.
5.6 Pterocarpus
MEET acknowledges that Pterocarpus “prefers lowland areas between 0 and 300
metres above sea level, semi‐flooded by running fresh water or periodically flooded,
or alluvial banks…” (Vol. II, p. 280). Thus, the assertion presented by the Thorne
report (2011) that the buoyancy of the Pterocarpus seeds would prevent it from
establishing in a channel such as the Caño is contradicted.
5.7 Assumptions of ‘Pristine’ Forest and Lack of Recovery of Cleared Forest
In places, the MEET report asserts the area impacted has been previously
undisturbed. For instance, p. 276 of Volume II states, “the recently deforested
areas…form part of forest areas well established by 1961…and that until October
2010 [have] suffered little or no change to their landscape due to human activity…”
However, the landscape has been used for agriculture, and prior clearing for
agriculture is ignored by the MEET report.
The frequent use of terms such as “irreversible” (e.g., Vol. II, p. 297), “totally
destroyed…[and] impossible to return to its former status” (e.g., Vol. II, p. 255)
imply that recovery of disturbed sites in this area is slow or nonexistent. This is
directly contradicted by the report’s acknowledgement that vegetation recovery has
occurred since 1961: “it can be seen that many of the areas described as sparsely
covered by native vegetation in 1961 had recovered by 1997…” (Vol. II, p. 278). In
this dynamic environment, with rapid rates of vegetation growth, small areas
cleared of vegetation can be expected to rapidly recover, so the dire language used
to describe the effects of the clearing of the Caño appears to be an exaggeration.
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5.8 Permanent Damage, Ecosystem Recovery
In Section 7.2 (Estimated Ecosystem Recovery Period), MEET theorizes based on
growth rates reported elsewhere in the region by Quesada (2003) and hypothesized
“invasion of pastures” that it “might require at least 50 years to become a forest with
a similar structure to the eliminated forest with a high canopy dominated by
Pterocarpus officinalis, with a diameter of around 30 cm, and a medium canopy
dominated by Raphia taedigera” (Vol. II, p. 287). This statement is immediately
followed by a more gloomy statement: “The information on growth indicates that to
obtain trees with diameters of over a metre would mean waiting at least between
200 and 250 years, during which time there would be no environmental services
provided by the deforested trees” (Vol. II, p. 288, emphasis mine).
These statements are problematic in several important respects. The assertion that
during a period of 200 to 250 years of forest growth, “there would be no
environmental services provided” can most charitably be termed an exaggeration.
It is directly contradicted by the preceding statement that “a forest with a similar
structure” would develop in 50 years. Why would this similar forest not provide
some “environmental services”?
5.9 Lack of Objectivity
That the MEET report selectively criticizes the 2010 Caño clearing, while ignoring
much larger impacts along the river and the prior clearing of the forest near the
Caño, demonstrates a lack of objectivity in the report.
It is notable that this report makes dramatic statements about “significant” impact
to species from a disturbance of 6.72 ha, but it is completely silent regarding the
clearing of an area of land more 100 times greater to build a road along the Costa
Rican bank of the San Juan River, which cuts habitat connectivity between the river
and floodplain for over 160 km, and which will induce many times that amount of
land disturbance because of land clearance by settlers attracted by the road. Thus,
by ignoring the far larger impact of the ongoing road construction, the MEET report
does not present a true and unbalanced assessment of impacts on the environment.
The report’s evident bias is further illustrated in a passage acknowledging that the
forest around the Caño was already being cleared for agriculture: “[F]rom 1997 to
2011…there has been an expansion of the agricultural frontier to make way for
sparsely‐forested pastures…[T]his aspect is not a direct consequence of the 2010
activities in the wetland…” (Vol. II, p. 278). Two comments on this passage are in
order.
First, MEET acknowledges that the clearing of an unmeasured but undoubtedly
larger area has occurred since 1997 for agriculture, but the report is silent
regarding the impacts of this other, larger clearing, saving all its criticisms and
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ominous statements of environmental impact for the 2010 Caño clearing. Thus, the
MEET report is not balanced or objective.
Second, by saying the agricultural clearing is not a “direct consequence” of the 2010
Caño clearing, MEET implicitly leaves open the possibility that the agricultural
clearance might be an indirect effect, which is clearly impossible since the
agricultural clearing preceded the clearing of the Caño. These points reflect the
biased tone of the report, which seemed to have the a priori objective of
exaggerating the possible effects of the Caño clearing, while ignoring other impacts,
such as the much larger agricultural clearing projects.
5.10 Ominous Statements
The MEET report includes many ominous statements that the wetland has been
destroyed, that sensitive species have been impacted, etc. These statements are not
supported by credible evidence, are mere assertions, and are not balanced.
For example, the report states: “This section of the wetland has been left totally
destroyed, as it is impossible to restore it to its former status, even if the extracted
material could be put back in the artificially‐excavated canal” (Vol. II, p. 255). This
statement is not supported by evidence, and does not reflect the dynamic nature of
the environment, nor the fact that the entire feature was only recently constructed
by deposition of alluvial sediment. The dramatic terms “totally destroyed” and
“impossible to restore” are not based on science.
The MEET report asserts that the clearing of the Caño would have “repercussions”
and “significant impact” on species such as tapir, jaguar, ocelot, and capuchin and
howler monkeys (Vol. II, p. 263). It seems implausible that such a minor clearing
could impact the species listed, especially those with large ranges. In any event, the
report presents no evidence of any kind that these species have been affected by the
clearing of the Caño.
Many statements apparently reflect significant confusion on the part of the authors.
For example, they warn that “[n]ot carrying out constant monitoring and
surveillance would have the consequence of failing to take actions that would
prevent permanent, irreparable damage to the wetland” (Vol. II, pp. 298‐299). First,
the report authors evidently misunderstand the role of monitoring, which (even if
“constant”) is only data gathering, not taking “action”. Second, the statement that
“constant monitoring and surveillance” could prevent “permanent, irreplaceable
damage” contradicts earlier statements in the report that assert there has already
been “permanent” environmental damage (Vol II, p. 295), “significant’ impacts” (Vol
II, p. 263), “permanent loss of the ecological conditions…which…constitutes an
irreversible damage” (Vol. II, p. 260), and a “wetland totally…destroyed…[and]
impossible to restore to its former status” (Vol. II, p. 255). The report thus
contradicts its earlier statement that permanent, irreversible damage has occurred.
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Third, as demonstrated in my comments above, the MEET statements about
permanent, irreversible damage are assertions, unsupported by sound scientific
evidence or reasoning, but presented using big words and an ominous tone.
The section of the MEET report entitled General Conclusions includes many
alarming words, such as: “Some of these changes are irreversible. Moreover, the
changes brought about to forest resources are major and more significant than
initially thought. An example of this is the age and quantity of felled trees of
between 136 and almost 400 years old” (Vol. II, p. 292). Given that the historical
maps presented in the Thorne report (2011) show these lands to have been actively
accreting in the late 18 th and early 19 centuries, the land itself is considerably
younger than 400 years old. MEET 2011 does not explain how these trees could
have established so long ago on land that did not then exist.
Other assertions of ‘irreversible’ impacts are made, such as, “[t]he life history of the
species of felled trees enables the alteration to be categorized as negative and
irreversible on a level at which the environmental impacts can be gauged with
certainty” (Vol. II, p. 297). However, such statements are not supported by evidence
or coherent logic.
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6. Comments on “Appraisal of maximum average of the trees felled in primary
forest areas in the Punta Castilla, Colorado, Pococi and Limon sectors of Costa
Rica, as a result of the Nicaraguan Army’s occupation for the apparent
restoration of an existing canal,” by Miguel Araya Montero, December 2010
(Annex 49, Vol. II, pp. 47‐64 of Memorial of Costa Rica) (henceforth “Araya‐
Montero 2010”).
6.1 Lack of Objectivity
By its own admission, this document is not an objective appraisal of the ages of the
felled trees, but rather has the goal of ‘proving’ a pre‐determined conclusion. It
states: “[T]his document is aimed at proving, through an appraisal of the maximum
average age of the trees felled, that specifically in the forest area where the trees
were cut, there has been no canal during the last few decades” (Vol. II, p. 50).
6.2 Lack of Environmental Data to Justify Application of Data From Other Sites
The study appears to rely on growth rates documented elsewhere in Costa Rica,
assuming they apply in the study area. Tree growth rates vary widely, and are
highly dependent on local environmental conditions. Before confidently applying
growth rates from one locality to another, the environmental conditions for the two
areas must be quantified and objectively compared. Araya‐Montero (2010)
presents no such information, including only the vague statement that the Boca
Tapado area is “close to the San Juan River” (Vol. II, p. 53).
Thus, the author of Araya‐Montero (2010) took estimates of tree growth rates from
observations elsewhere, then applied them to the Caño site. The slower the growth
rate assumed, the older a tree of a given diameter is estimated to be. Growth rates
for a given species of tree can vary enormously, depending on site conditions such a
soil moisture, depth to water, soil characteristic, hydrologic setting, and whether the
trees are establishing on fresh surfaces where they can achieve maximum growth
rates, or whether they are growing in long‐established forests in which they must
compete for light and nutrients with long‐established neighbors.
The critical question is whether the growth rates taken from other sites in Costa
Rica can be applied to the Caño site. Are conditions sufficiently comparable to apply
these rates from elsewhere? Here the reports by Professor Thorne (2011) and
Araya‐Montero (2010) fail us, in that they present no environmental data that
would allow the reader to judge whether the sites from which the growth rates were
obtained are sufficiently comparable to the Caño site to allow the growth rates to be
applied.
One critical factor would be whether the trees are establishing on freshly cleared or
deposited surfaces or within a long‐established forest. Based on information
presented by Araya‐Montero (2010) quoting an undated report by Meza et al.,
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“unmanaged forests have a yearly growth rate of 0.64 cm/year, whereas disturbed
forests have a yearly diameter growth that reached 1.17 cm/year” (Vol. II, p. 52).
A key point is that Meza et al. found that trees growing on open surfaces, such as
disturbed ground, can grow twice as fast as trees growing in established forests.
By mixing units (reporting growth rates in mm/year in some places, cm/year in
others), Araya‐Montero (2010) adds confusion to his report. Rigorous scientific
reports normally use consistent units to convey information with the greatest
clarity. However, when these growth rates are expressed in mm/year, they are 6.4
mm/year up to 11.7 mm/year. First, even the lower value is higher than the 5
mm/year used by Araya‐Montero (2010). More importantly, the second value, for
growth rates on disturbed sites, is arguably the more applicable here, since the site
of establishment was not a long‐established forest, but land made from deposits of
the San Juan River probably sometime in the early 19 th century or later.
Based on historical maps, the surface on which the trees along the Caño would be
th
establishing wth deposited sometime in or after the late 18 century, probably in
the early 19 century, and later as deposition continued. Thus these trees were
establishing on a ‘fresh’ surface and would likely have maximum growth rates. As
per Araya‐Montero (2010), these growth rates could be twice those of the long‐
established forests. Accordingly, the growth rate of 5 mm/year presented by Araya‐
Montero (2010) (presumably measured in established forests) is probably half of
the real growth rate. If we assume a growth rate of 10 mm/year, that would halve
the age estimates for the largest trees to about 125 years. Thus, based on the
available information, the maximum tree ages presented by Araya‐Montero (2010)
and Professor Thorne (2011) appear to be exaggerated.
In any event, the credibility and relevance of Araya‐Montero (2010) is undermined
by its failure to disclose the critical information about the environmental setting of
tree growth rate data that could allow the reader to make an informed judgment
about whether growth rates from another site would apply to the Caño site.
6.3 Data Presentation
Table 2 on p. 54 of Volume II presents the number of trees per hectare counted in
the study area by interval of diameter (e.g., <10 cm, 10‐19 cm, etc.). Figure 1 on the
following page of Volume II presents these data, but leaves out the first size category.
The text explains that it was difficult to count trees of <5 cm, but there is no such
problem reported for trees in the 5‐9 cm range, so the first size category could have
been included with some adjustment to account for the poor counting of trees of
<5 cm. By leaving out the smallest size category, the report presents a misleading
impression of the pattern of size data.
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Moreover, Araya‐Montero (2010) seems to argue that Figure 1 demonstrates that
the data agree with the regression relationship being used. However, this is not
terribly persuasive, since the regression is based on the data presented – thus, it is
not an independent test in any way, rather agreement between the two would be
expected. By entirely leaving out the smallest size category, Araya‐Montero (2010)
gives the impression in Figure 1 that the tree density per hectare follows a more
consistent pattern than indicated by the actual data.
Regarding Table 1, Araya‐Montero (2010) states: “Based on the above table, a
general current yearly increase average for the Study at hand was obtained,
considering that the current yearly increase in average diameter is 0.50 cm/year,
which for a level of statistical reliability of 95%, would fluctuate between
0.40 cm/yearly and 0/61 cm/yearly” (Vol. II, p. 53). The author does not report on
the how the 95% confidence intervals were obtained.
The report then goes on to conclude as follows: “[T]rees with diameters in the 120‐
130 centimetres class were observed in the appraised area, and these trees could be
on average 247.6 years old, an age which could fluctuate between 206.3 and 309.8
years…[T]he presence of trees on site that are over 200 years old can be proven,
which implies that the forest has existed for at least as long as that” (Vol. II, p. 58).
The range of ages around the average is stated with false precision. There is no
justification presented for reporting the results to four significant figures, but by
doing so, Araya‐Montero (2010) gives the false impression that the numbers are
precise.
6.4 Conflict with Historical Analysis
The application of tree growth data from another site with different conditions does
not “prove” that there are trees over 200 years old on the site. Moreover, the
historical maps presented by the Thorne report (2011) indicate that much of the
land under the site did not exist until it was deposited in the early 19 th century,
which implies that trees of 247 years in age would not be possible, as they would
have had to establish in the waters of the former San Juan harbor.
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512 APPENDIX 1
7. Comments on “Age approximation of trees cut in the Area under Costa Rica’s
Environmental Management located on the causeway of the artificial channel
built on a portion of territory of Calero Island to connect the San Juan River with
los Portillos Lagoon,” by Miguel Araya Montero, August 2011 (Annex 154, Vol.
II, pp. 205‐220 of Memorial of Costa Rica) (henceforth “Araya‐Montero 2011)..
This report largely reiterates the content of Araya‐Montero’s December 2010 report
(discussed immediately above), but adds photographs from a site visit in spring
2011.
The range of ages of trees hypothesized differs somewhat from the range reported
in Araya‐Montero (2010), with one estimate up to 353 years of age (Vol. II, p. 213).
The author of Araya‐Montero (2011) was evidently unaware that late 18 th century
maps show much of the disputed are as being in open coastal waters of the harbor
of the San Juan River. Thus, the asserted tree age of 353 years is not plausible.
Because of buoyancy of seeds, Araya‐Montero concludes: “The regeneration of
species such as Pterocarpus officinalis and Raphia taedigera is very unlikely to have
occurred on an existing natural or artificial channel…” (Vol. II, p. 216). This
argument is inconsistent with the fact that P officinalis occupies wetlands, even sites
that are perennially wet (Smithsonian Tropical Research Institute 2012).
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513APPENDIX 1
8. References Cited
Araya‐Montero, M. 2010. Appraisal of maximum average age of the trees felled in
primary forest areas in the Punta Castilla, Colorado, Pococi and Limon sectors of
Costa Rica, as a result of the Nicaraguan Army’s occupation for apparent restoration
of an existing canal. December 2010. Sistema Nacional de Areas de Conservación
(SINAC) or the Ministry of Environment, Energy and Telecommunications of Costa
Rica, report submitted to the International Court of Justice. Annex 145 to the
Memorial of Costa Rica.
Araya‐Montero, M. 2011. Age approximation of trees cut in the Area under Costa
Rica’s Environmental Management located on the causeway of the artificial channel
built on a portion of territory of Calero Island to connect the San Juan River with los
Portillos Lagoon. Sistema Nacional de Areas de Conservación (SINAC) or the Ministry
of Environment, Energy and Telecommunications of Costa Rica, report submitted to
the International Court of Justice. Annex 154 to the Memorial of Costa Rica.
Battalio, R. T., Danmeier, D. and Williams, P., 2007. Predicting Closure and Breaching
Frequencies of Small Tidal Inlets –A Quantified Conceptual Model. Proceedings of
the 30th International Conference of Coastal Engineering, 2006, ASCE 2007, Vol. 4,
3937‐3949.
Goodwin, P. 1996. Predicting the stability of tidal inlets for wetland and
estuary management. Journal of Coastal Research, Special Issue No. 23,
pp. 83‐101.
Goodwin, P., and P.B. Williams, 1991. Short‐term characteristics of coastal lagoon
entrances in California. Proceedings: Coastal Sediments 91, Symposium on
Quantitative Approaches to Coastal Sediment, ASCE, Seattle, WA, June 25–27.
Hupp, C., and G. Bornette. 2003. Vegetation as a tool in the interpretation of fluvial
geomorphic processes and landforms in humid temperate areas. In Kondolf, G.M.,
and H. Piégay, eds. 2003. Tools in fluvial geomorphology. John Wiley & Sons,
Chichester, pp. 269‐288.
Johnson, J.W. 1973. Characteristics and behavior of pacific coast tidal inlets.
Journal of the Waterways, Harbors and Coastal Engineering Division,
Proceedings of the American Society of Civil Engineers, Vol. 99, No.
WW3, August 1973, pp. 325‐339.
La Nación, Costa Rica “Project moves ahead a year after the Harbor Head conflict,
Costa Rica constructs a highway parallel to the Río San Juan,” 18 October 2011.
Ministry of Environment, Energy and Telecommunications (MEET) of Costa Rica.
2011. Evaluation and assessment of the environmental situation in the North‐
eastern Caribbean Wetland (Humedal Caribe Noreste) pursuant to the Order of the
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International Court of Justice. October 2011, report submitted to the International
Court of Justice. Annex 155 of the Memorial of Costa Rica.
Ramsar Secretariat. 2010. Ramsar Advisory Mission Report N o 69: North‐eastern
Caribbean Wetland of International Importance (Humedal Caribe Noreste), Costa
Rica. December 2010, report submitted to the International Court of Justice. Annex
147 of the Memorial of Costa Rica.
Smithsonian Tropical Research Institute website,
http://biogeodb.stri.si.edu/bioinformatics/ accessed 05 July 2012.
Thorne, C. 2011. Assessment of the physical impact of works carried out by
Nicaragua since October 2010 on the geomorphology, hydrology and sediment
dynamics of the San Juan River and the environmental impacts on Costa Rican
territory. Report to the Government of Costa Rica, October 2011. Appendix 1 to the
Memorial of Costa Rica, submitted to the International Court of Justice.
UNITAR (United Nations Institute for Training and Research). 2011a. Morphological
and Environmental Change Assessment: San Juan River Area (including Isla Portillos
and Calero), Costa Rica. Prepared by UNITAR/UNOSAT 4 January 2011. (UNITAR
2011a), submitted to the International Court of Justice. Annex 148 of the Memorial
of Costa Rica.
UNITAR (United Nations Institute for Training and Research). 2011b. Morphological
and Environmental Change Assessment: San Juan River Area (including Isla Portillos
and Calero), Costa Rica. Prepared by UNITAR/UNOSAT 3 March 2011. (UNITAR
2011b), submitted to the International Court of Justice. Annex 149 of the Memorial
of Costa Rica.
UNITAR (United Nations Institute for Training and Research). 2011c. Morphological
and Environmental Change Assessment: San Juan River Area (including Isla Portillos
and Calero), Costa Rica. Prepared by UNITAR/UNOSAT 8 Novmeber 2011. (UNITAR
2011c), submitted to the International Court of Justice. Annex 150 of the Memorial
of Costa Rica.
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516 APPENDIX 1
1
Curricultem CV2012-8pp.doc
G. MATHIAS KONDOLF
Professor of Environmental Planning and Geography
Chair, Dept Landscape Architecture and Environmental Planning
202 Wurster Hall, University of California, Berkeley CA 94720 USA
[email protected]
EDUCATION
The Johns Hopkins University. PhD, Geography and Environmental Engineering 1988. Dissertation:
Salmonid spawning gravels: A geomorphic perspective on their distribution, size modification by
spawning fish, and application of criteria for gravel quality.
University of California at Santa Cruz. MS, Earth Sciences 1982. Thesis: Recent channel instability and
historic channel changes of the Carmel River, Monterey County, California.
Princeton University. AB cum laude, Geology 1978. Thesis: Genesis and development of Sandy Hook,
New Jersey
PROFESSIONAL EXPERIENCE
University of California at Berkeley
Chair, Department of Landscape Architecture and Environmental Planning: 2011-present
Professor of Environmental Planning and Geography: 2007 to present (appointed Asst Prof 1988)
Chair, Portuguese Studies Program: 2001-present
Regular university courses:
Mediterranean-Climate Landscapes, Environmental Sciences for Sustainable Development, River
Restoration, Hydrology for Planners.
Professional shortcourses:
Week-long shortcourse Geomorphic and ecological fundamentals for river and stream restoration
offered annually since 1995 at Sagehen Creek Field Station, Truckee, California, and components taught
also at Beaumont du Ventoux and Lyon, France, University of Lisbon, and National Cheng Kung
University, Taiwan.
SERVICE ON EDITORIAL BOARDS
Associate Editor, Water Resources Research (2011 to present)
Associate Editor, Environmental Management (1999 to present)
SERVICE ON GOVERNMENT ADVISORY BOARDS
Technical Review Committee for the Greater Mississippi Basin Post-Flood Assessment, US Army
Corps of Engineers: 2012-2013
National Research Council Committee on Hydrology, Ecology, Fishes of the Klamath River Basin
Member: 2006-2007
Federal Interagency Flood Risk Management Committee Member: 2005-2007
Environmental Advisory Board to the Chief of the US Army Corps of Engineers: Member: 2002-2007
CALFED Bay-Delta Program Ecosystem Restoration Program Science Board: Member: 1999-2005
517APPENDIX 1
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RECENT PEER-REVIEWED PUBLICATIONS
Ludy, J. and G.M. Kondolf. 2012. Flood risk perception in lands ‘protected’ by 100-year levees. Natural
Hazards 61(2):829-842. DOI: 10.1007/s11069-011-0072-6
Kondolf, G.M. 2011. Setting Goals in River Restoration: When and Where Can the River ‘Heal Itself’?
in Simon, A. et al (eds) Stream Restoration in Dynamic Fluvial Systems: Scientific Approaches,
Analyses, and Tools. Geophyical Monograph Series Vol.194 pp.29-43. American Geophysical Union,
Washington DC. DOI: 10.1029/2010GM001020 .
Kondolf, G.M., S. Anderson, R, Storesund, M. Tompkins, and P. Atwood. 2011. Post-project appraisals
of river restoration in advanced university instruction. Restoration Ecology doi: 10.1111/j.1526-
100X.2011.00803.x
Michalková, M., H. Piégay, G.M. Kondolf, and S.E. Greco. Longitudinal and temporal evolution of the
Sacramento River between Red Bluff and Colusa, California, USA (1942-1999). Earth Surface
Processes and Landforms 36:257-272. DOI:10.1002/esp.2106.
Lassettre, N.S. and G.M. Kondolf. 2011. Large wood in urban stream channels: re-defining the problem.
River Research and Applications. DOI: 10.1002/rra.1538
Kilber, K. D. Tullos, and G.M. Kondolf. 2011. Learning from dam removal monitoring: challenges to
selecting experimental design and establishing significance of outcomes. River Research and
Applications 27:967-975. DOI: 10.1002/rra.1415
MacWilliams, M.L., M.R. Tompkins, R.L. Street, G.M. Kondolf, and P.K. Kitanidis. 2010. An
assessment of the effectiveness of a constructed compound channel river restoration project on an
incised stream. Journal of Hydraulic Engineering 136(12): 1042-1052. DOI: 10.1061/(ASCE)HY.1943-
7900.0000196
Minear, T. and G.M. Kondolf. 2009. Estimating reservoir sedimentation rates at large spatial- and
temporal-scales: a case study of California. Water Resources Research 45. W12502 doi:10.1029/2007WR006703
Bosselmann, P.C., G.M. Kondolf, J. Feng, G. Bao, Z. Zhang, and M. Liu. 2009. The future of a Chinese
water village: alternative design practices aimed to provide new life for traditional water villages in the
Pearl River Delta. Journal of Urban Design 15(2):243-267.
Constantine, J.A., T. Dunne, H. Piégay, and G.M. Kondolf. 2010. Controls on the alluviation of oxbow
lakes by bed-material load as observed along the Sacramento River of California. Sedimentology
57:389-407.
Chin, A., S. Anderson, A. Collison, B. Ellis-Sugai, J.P. Haltiner, J. Hogervorst, G.M. Kondolf, L.S.
O’Hirok, A.H. Purcell, and E. Wohl. 2009 Linking theory and practice for restoration of step-pool
streams. Environmental Management 43:645-661.
Deitch, M.,J., G.M. Kondolf, and A.M. Merenlender. 2009. Hydrologic impacts of small-scale instream
diversions for frost and heat protection in the California wine country. River Research and Applications
25: 118-134.
518 APPENDIX 1
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Deitch, M.J., G.M. Kondolf, and A.M. Merenlender. 2009. Surface water balance to evaluate the
hydrological impacts of small instream diversions and application to the Russian River basin, California,
USA. Aquatic Sciences: Marine and Freshwater Ecosystems 19: 274-284.
Kondolf, G.M., P. Angermeier, K. Cummins, T. Dunne, M. Healey, W. Kimmerer, P.B. Moyle, D.
Murphy, D. Patten, S. Railsback, D. Reed, R. Spies, and R. Twiss. 2008. Prioritizing river restoration:
Projecting cumulative benefits of multiple projects: an example from the Sacramento-San Joaquin River
system in California. Environmental Management 42:933-945 (DOI: 10.1007/s00267-008-9162-y)
Rovira, A., and G.M. Kondolf. 2008. Bed mobility on the Deschutes River, Oregon: tracer gravel
results. Geodinamica Acta 21:11-22.
Tompkins, M.R., and G.M. Kondolf. 2007. Systematic post-project appraisals to maximize lessons
learned from river restoration projects: Case study of compound channel construction projects in
Northern California. Restoration Ecology 15(3):524-537.
Kondolf, G.M., S. Anderson, R. Lave, L. Pagano, A. Merelender, and E. Bernhardt. 2007. Two decades
of river restoration in California: What can we learn? Restoration Ecology 15(3):516-523.
Kondolf, G.M., H. Piégay, and N. Landon. 2007. Changes since 1830 in the riparian zone of the lower
Eygues River, France. Landscape Ecology 22:367-384.
Simon, A., M. Doyle, G.M. Kondolf, F.D. Shields, Jr., B. Rhoads, and M. McPhillips. 2007. Critical
evaluation of how the Rosgen classification and associated "natural channel design" methods fail to
integrate and quantify fluvial processes and channel response. Journal of the American Water
Resources Association 43(5):1117-1131.
Kondolf, G.M. River restoration and meanders. 2006. Ecology and Society. [online] URL:
http://www.ecologyandsociety.org/vol11/iss2/art42/
Kondolf, G.M., A. Boulton, S. O'Daniel, G. Poole, F. Rahel, E. Stanley, E. Wohl, A. Bang, J. Carlstrom,
C. Cristoni, H. Huber, S. Koljonen, P. Louhi, and K. Nakamura. 2006. Process-based ecological river
restoration: Visualising three-dimensional connectivity and dynamic vectors to recover lost linkages.
Ecology and Society 11 (2): 5. [online] URL: http://www.ecologyandsociety.org/vol11/iss2/art5/
Kondolf, G.M., and R.J. Batalla. 2005. Hydrological effects of dams and water diversions on rivers of
Mediterranean-climate regions: Examples from California. In C. Garcia and R.J. Batalla (eds.)
Catchment dynamics and river processes: Mediterranean and other climate regions. Elsevier, London.
pp.197-211.
BOOKS
Kondolf, G.M., and H. Piégay, eds. 2003. Tools in fluvial geomorphology. John Wiley & Sons,
Chichester, 696 pp.
(Reviewed in Annals of the Association of American Geographers 95(3):713-715, 2005.)
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RECENT PAPERS PUBLISHED IN SYMPOSIA PROCEEDINGS AND BOOK CHAPTERS
Kondolf, GM, and Podolak K. 2011. Urban rivers: Landscapes of leisure and consumption. In PM
Santos and PC Seixas, eds. Globalization and Metropolization – theory and practice from Europe's west
coast. Institute of Governmental Studies, Berkeley (in press)
Kondolf, G.M. The espace de liberté and restoration of fluvial process: When can the river restore itself
and when must we intervene? River Conservation and Restoration, P. Boon & Paul Raven, editors. John
Wiley & Sons, Chichester. (in press)
Bouleau, G. and G.M. Kondolf. 2011. Rivers of diversity: evolving water regulation in California and
the European Union. in Transatlantic Regulatory Cooperation: The Shifting Roles of the EU, the US and
California. D. Vogel and J. Swinnen, eds. Edward Elgar, Cheltenham, UK. pp. 83-101.
Kondolf, G.M. and Piégay, H. 2010. Geomorphology and society. Chapter 6 in Handbook of
Geomorphology, K. Gregory, ed., SAGE Publications, London, pp.105-117.
Wohl, E., A. Chin, J. Haltiner, and G.M. Kondolf. 2010. Managing stream morphology with check
dams. In C.C. Garcia and M.A. Lenzi (eds), Check Dams, Morphological Adjustments. Nova Science
Publishers, Inc. pp.135-149.
Kondolf, G.M. 2009. An environmental perspective in city-river relationships. in Cities and rivers,
perspectives towards a sustainable partnership, Livro nº 8 da Colecção Expoentes, edições da PARQUE
EXPO, através do Núcleo de Comunicação da Parque EXPO, Lisbon.
Kondolf, M. 2009. Rivers, meanders, and memory. pp. 106-119 in M. Treib, ed., Spatial Recall, Taylor
& Francis (Routledge)
Church, M., T.P. Burt, V.J. Galay, and G.M. Kondolf. 2009. Rivers. Chapter 4 in O. Slaymaker T.
Spencer, and C. Embleton-Hamann, editors, Landscape change in the 21st century, Cambridge
University Press.
Kondolf, G.M., L. A. Mozingo, S. Anderson, and J.R. McBride. 2009. Teaching ecological restoration
of rivers and streams. The Berkeley Chronicle Spring 2009: 171-188.
Kondolf, G.M., and G. Zolezzi. 2008. Reference river ecosystems: historical states, best ecological
potential, and management challenges. pp.1047-1050 in River Restoration 2008, Proceedings of the
IVth European Center for River Restoration Conference, Venice, June 2008. B. Guimiero, M. Rinadi,
and B. Fokkens, eds.
Eisenstein, W., and G.M. Kondolf. 2008. Planning water use in California. Access 33 (Fall 2008):8-17.
Available online: http://www.uctc.net/access/33/Access%2033%20-%2003%20-%20Water%20Use%20…
Kondolf, G.M., J.G. Williams, T. Horner, and D. Milan. 2008. Assessing physical quality of spawning
habitat. pp.249-274 in D. Sear, P. DeVries, and S. Greig (eds.) Salmon spawning habitat in rivers:
520 APPENDIX 1
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Physical controls, biological responses, and approaches to remediation. American Fisheries Society
Symposium 65. American Fisheries Society, Bethesda, MD.
Wohl, E., M. Palmer, and G.M. Kondolf. 2008. River management in the United States. pp. 174-200 in
G.J. Brierly and K.A. Fryirs (eds.) River Futures: An integrative scientific approach to river repair.
Island Press, Washington.
Kondolf, G.M., and C-N. Yang. 2008. Planning river restoration projects: Social and cultural
dimensions. pp.43-60 in D. Sear and S. Darby (eds.) River Restoration: Managing the Uncertainty in
Restoring Physical Habitat. Wiley, Chichester.
Kondolf, G.M. 2006. When dams get old: Dam removal in western North America pp. 373-376 in Lanz,
K., Mueller, L., Rentsch, C., and Schwarzenbach, R. P. eds.: Who owns the water? (Wem gehoert das
Wasser?), Baden, Switzerland, Lars Müller Publishers. 536 pages.
Kondolf, G.M. 2006. River and stream restoration. In American Planning Association Planning and
urban design standards (pp. 122-124). John Wiley & Sons, Hoboken, N.J.
Kondolf, G.M. 2006. Floodplains and riparian corridors. In American Planning Association Planning
and urban design standards (pp. 118-121). John Wiley & Sons, Hoboken, N.J.
Kondolf, G.M. 2006. Rivers and streams. In American Planning Association Planning and urban
design standards (pp. 115-117). John Wiley & Sons, Hoboken, N.J.
RECENT TECHNICAL REPORTS
Serra-Llobet, A., G.M. Kondolf, and S. Nicholson. 2012. Wise Use of Floodplains: Adaptation in
America and Europe. Proceedings from March 2012 workshop (in preparation)
Simons, C.W., and G.M. Kondolf, editors. 2012. Crossings: Natural and Cultural Values for Sustainable
Development of the Naturtejo Geopark. Institute of Urban and Regional Development Working Paper
No. 2012-01. University of California, Berkeley. Available online at:
http://www.iurd.berkeley.edu/publications/wp/wp‐2012‐01.pdf
Kondolf GM, et al. 2011. Connecting Cairo to the Nile: Renewing life and heritage on the river.
Institute of Urban and Regional Development Working Paper No. 2011-007. University of California,
Berkeley. Available online: http://laep.ced.berkeley.edu/research/cairo/publication/
Stein, ED, K Vyverberg, G M Kondolf, and K Janes. 2011. Episodic stream channels: imperatives for
assessment and environmental planning in California. Proceedings of a special technical workshop,
November 2010, Costa Mesa, California. Southern California Coastal Water Research Project Report
No. 0645.
Kondolf, G.M., K. Podolak, and A. Gaffney (editors). 2010. From High Rise to Coast: Revitalizing
Ribeira da Barcarena. Water Resources Center Report No.210, and Report WP 2010-01, Institute of
Urban and Regional Development, and Institute of European Studies Publication 1102, University of
California, Berkeley. Available online at
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http://iurd.berkeley.edu/catalog/Working_Paper_Titles/High_Rise_Coast_R… at_da_Barcarena
http://escholarship.org/uc/item/3q77s4ss#page-2
Kondolf, G.M., P. Carling, F. Fruchart, & C. Alford. 2010. Potential Post-Dam Changes in Sediment
Supply and Channel Form in the Lower Mekong River: A Preliminary Assessment. Prepared for the
Mekong River Commission Secretariat, Vientiane, February 2010
Mekong River Commission. 2009. Design guidelines for Mekong Mainstem Dams. (contributed
approximately half of this document, specifying approaches for managing sediment in reservoirs)
March 2009.
Kondolf, G.M. 2009. Restoration prospects for the Apalachicola River. Report to American Rivers,
Washington, DC.
Kondolf, G.M. 2009. Guidelines for sand and gravel mining in Korean Rivers. Report submitted to K-
Water (Korean Water Agency), May 2009.
Natali, J., G.M. Kondolf, C. Landeiro, J. Christian-Smith, S. Scheuer, and T. Grantham. 2009. A Living
Mediterranean River: Restoration and Management of the Rio Real in Portugal to Achieve Good
Ecological Condition. Available online at http://repositories.cdlib.org/wrc/contributions/209
Skabelund, L., G.M. Kondolf, C. Johnson, and A. Bukojemsky. 2009. Successful ecological restoration:
A framework for planning/design professionals. American Association of Landscape Architects,
Washington DC.
H. T. Harvey & Associates, G. M. Kondolf, Geomorph, Blankinship & Associates. 2008. Final Colusa
Basin Watershed Assessment. Prepared for the Colusa County Resource Conservation District.
Kondolf, G.M., Tompkins, M.R, and McBain & Trush, Inc. 2008. Lower Deer Creek Ecosystem
Restoration and Flood Management: Feasibility Study and Conceptual Design Project: Geomorphic and
Biological Monitoring Report. Report to Deer Creek Watershed Conservancy, Vina, California.
Grantham, T., J. Christian-Smith, G.M. Kondolf, and S. Scheuer. 2008. A Fresh Perspective for
Managing Water in California: Insights from Applying the European Water Framework Directive to the
Russian River. Water Resources Center Report 208. Available on line:
http://www.lib.berkeley.edu/WRCA/WRC/pubs_contri.html#208
Kondolf, G. M. and Stillwater Sciences. 2007. Sacramento River Ecological Flows Study: Off-Channel
Habitat Study Results. Technical Report prepared for The Nature Conservancy, Chico, California by G.
Mathias Kondolf and Stillwater Sciences, Berkeley, California. Available online at:
http://www.delta.dfg.ca.gov/erp/sacriverecoflows.asp
Gohar, A., and G.M. Kondolf. 2007. Flooding risks in El-Sheikh el-Shazli. Report to US Agency for
International Development, Cairo, September 2007. Available online at:
http://landscape.ced.berkeley.edu/~kondolf/LivingCoast/
Anderson, S., R. Jencks, G.M. Kondolf, J. Natali, and G. Saraiva. 2007. New life for urban streams:
strategies for revitalizing waterways in the Lisbon metropolitan region. Report published by the
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Department of Landscape Architecture, University of California, Berkeley, and the Luso-American
Fund for Development, Lisbon, May 2007. Online at
http://ies.berkeley.edu/psp/portuguesestudies/research.html#streams
Eisenstein, W., G.M. Kondolf, and J.R. Cain. 2007. ReEnvisioning the delta: alternative futures for the
heart of California. Institute for Urban and Regional Development, University of California, Berkeley.
Available online at:http://landscape.ced.berkeley.edu/~delta/
National Research Council. 2007. Hydrology, Ecology, and Fishes of the Klamath River Basin.
(member of committee, contributed to sections on models, Klamath River, and evaluation of water
balance model and instream flow model) available online at: http://dels.nas.edu/dels/viewreport.cgi?id=4794
H.T. Harvey and Associates and G. M. Kondolf. 2006. Stony Creek Watershed Assessment, Volumes I
(Lower Stony Creek Watershed Analysis) and II (Existing Conditions). Report to Glenn County
Resource Conservation District, Willows, California.
National Park Service. 2006. Point Reyes National Seashore Water and Aquatic Resources Stewardship
Plan, Draft. (co-authored with L. Pagano, B.Ketcham, D. Vana-Miller). Point Reyes National Seashore,
Point Reyes, California.
Kondolf, G.M. 2005. Expert report of Professor G. Mathias Kondolf, PhD. Submitted in NRDC et al. vs.
US Bureau of Reclamation. (Assessment of restoration potential of San Joaquin River below Friant
Dam, August 2005)
RECENT AWARDS AND FELLOWSHIPS
Appointed Clarke Scholar at the Institute for Water Resources, US Army Corps of Engineers,
Washington DC, 2011 and 2012.
Council of Educators in Landscape Architecture. Award of Distinction, 2007.
Fulbright Commission, senior scholar research award to conduct research on environmental river
management in Portugal, University of Lisbon, Mar-May 2001.
Fulbright Commission, senior scholar research award to conduct research on the Eygues River, France,
1997-1998.
RECENT PROFESSIONAL SYMPOSIA ORGANIZED
Wise Use of Floodplains: Adaptation in America and Europe
March 2012. UC Berkeley. (Organized with Anna-Serra Llobet and Scott Nicholson) This workshop
explored the range of tools available for managing floodplains, from geomorphic risk-informed land-use
policies and setting aside flood bypasses, to structural approaches such as construction of dams and
levees, advancing a framework for ‘wise use’ of floodplains. Focusing on resilient communities and
sustainable floodplains, the speakers drew examples from large river floodplains (mostly Sacramento
and Mississippi River valleys) and from constrained urban river floodplains. Speakers included Melissa
Samet, National Wildlife Federation; Chuck Shadie, USACE Mississippi Valley Division; John Andrew
523APPENDIX 1
8
and Rod Mayer, California Department of Water Resources; Tim Washburn, Sacramento Area Flood
Control Agency; John Cain, American Rivers; Graça Saraiva, Technical University of Lisbon; Anna
Serra Llobet, UC Berkeley and formerly EU Commission Brussels; Dale Morris, Embassy of
Netherlands, Washington; Ken Leep, Association of State Floodplain Managers; Mark Tompkins,
Newfields River Basin Services; Jeff Romm, UC Berkeley; Todd Strole, The Nature Conservancy;
Shana Udvardy, American Rivers; Rachael Marzion, Zan Rubin and Raymond Wong, UC Berkeley; Jim
Fielder, Executive Director Santa Clara Valley Water District; Jack Curley, Marin County Flood Control
and Water Conservation District; Ralph Johnson, Alameda County Flood Control and Water
Conservation District; Mitch Avalon, Contra Costa County Flood Control and Water Conservation
District; Bill DeGroot and David Mallory, Denver Urban Drainage and Flood Control District; Shana
Udvardy, American Rivers; Len Materman, San Francisquito Creek Joint Powers Authority; Liang Xu,
Santa Clara Valley Water District.
Episodic Stream Channels: Imperatives for Assessment and Environmental Planning in California.
November 2010. Costa Mesa, California. (organized with Kris Vyverberg of the California Department
of Fish and Game and Eric Stein of the Southern California Water Resources Research Program). The
purpose of this symposium was to educate the public and decision makers about the nature and
importance of episodic streams, including ephemeral dryland streams and Mediterranean-climate
intermittant streams. Speakers: Eric Stein, SCCWRP; Matt Kondolf; Kris Vyverberg, California Dept
of Fish & Game (CDFG); Jonathan Friedman, US Geological Survey; Derek Booth, Stillwater Sciences;
Brian Bledsoe, Colorado State Univ; Jeremy Lancaster, California Geological Survey; Lainie Levick,
USDA; Sophie Parker, The Nature Conservancy (TBC); Barry Hecht, Balance Hydrologics; Laurel
Marcus, California Land Stewardship Institute; Bill Christian, TNC; Tom Spittler, California
Geological Survey; Andy Collison, Philip Williams and Associates; Katherine Curtis, US Army Corps
of Engineers (USACE); Todd Keeler-Wolf, CDFG; Aaron Allen, USACE; Eric Berntsen, California
State Water Resources Control Board; Deborah Hillyard, CDFG.
Re-Envisioning the Delta, March 16-17, 2006, University of California, Berkeley. Speakers: Margit
Aramburu, former chair Delta Protection Commission; Ronald Baldwin, San Joaquin County
Emergency Operations; Joseph Bodovitz, Bay Conservation and Development Commission, Coastal
Commission; Peter Bosselmann, University of California, Berkeley (UCB); Jennifer Brooke, UCB; John
Cain, Natural Heritage Institute; Marci Coglianese, former mayor of Rio Vista, former member Delta
Protection Commission; Joseph T. Edmiston, Santa Monica Mountains Conservancy; Phyllis Faber,
University of California Press; Dan Farber, UCB Boalt School of Law; Harrison Fraker, UCB; Joseph
Grindstaff, California Bay Delta Authority; Hans Johnson, Public Policy Institute of California; Patrick
Johnston, Bay Delta Authority, former state senator; John King, San Francisco Chronicle; Matt Kondolf,
UCB; Keith H. Lichten, P.E., San Francisco Bay Regional Water Board; Louise Mozingo, UCB; Eric
Parfrey, Yolo County Planning Department; Tom Philp, Sacramento Bee; Pete Rhoads, South Florida
Water Management District; Christine Rosen, UCB Haas School of Business; Raymond Seed, UCB; J.
William Thompson, FASLA, Landscape Architecture magazine; Robert Twiss, UCB; Kathleen Van
Velsor, Association of Bay Area Governments; Thomas W. Waters, PE, SES, US Army Corps of
Engineers; Michael Webb, California Building Industry Association; Carol Whiteside, Great Valley
Center; Jane Wolff, Washington University; Tom Zuckerman, University Pacific, former counsel
Central Delta Water District. Program and publications online athttp://landscape.ced.berkeley.edu/~delta/
524 APPENDIX 2
APPENDIX 2
THE INFLUENCE OF DREDGING ON THE
DISCHARGE AND ENVIROMENT OF THE
SAN JUAN RIVER
DELFT UNIVERSITY OF TECHNOLOGY
AUTHORS:
Prof. dr. ir C. VAN RHEE
Prof. dr. ir. H.J. DE VRIEND
525APPENDIX 2
526 APPENDIX 2
The influence of dredging on the
discharge and environment of the
San Juan River
D ELFT U NIVERSITY OF TECHNOLOGY
Authors:
Prof. dr. ir. C.
Prof. dr. ir. H.J.
July 19, 2012
527APPENDIX 2
Contents
Executive Summary ....................................................................▯...................... .... 1
1:Introduction .......................................................................▯...................... ........2
2: The Small Scale of Nicaragua’s DredgingProject ........................................3
2.1: The effect of the dredging on the flow distribution between the
Colorado and San Juan rivers ....................................................................3
2.2: The effect of the number of dredges working on the project.....................8
3:Impact of Nicaragua’s modest dredging project .........................................11
3.1: The lack of appreciable environmental harm...........................................11
3.2: The environmental benefits of the project...............................................12
3.3: The importance of dredging.....................................................................13
Conclusion .......................................................................▯.......................... ........15
528 APPENDIX 2
Executive Summary
The report of Van Rhee and De Vriend (2011) (“VRDV 2011”) concluded that
Nicaragua’s dredging of the San Juan River would only marginally increase the flow in
the Lower San Juan (i.e., by 3 %), that this small increase in flow would cause no
meaningful difference in the flow of the Co lorado River, and that Nicaragua’s modest
dredging program would cause no permanent environmental effects. These conclusions
still stand today.
Thorne (2012) (“Thorne”) reviewed VRDV 2011 and performed hydraulic
computations using the HEC-RAS model, obtaining significantly higher values for the
extra discharge into the Lower San Juan River likely to be caused by Nicaragua’s
dredging efforts. According to Thorne, the different outcomes were due to a different
friction factor used and the fact that theHEC-RAS model is based on gradually varied
flow while the model utilized in VRDV 2011 was based on uniform flow.
However, the present report shows that the choice of the friction factor does not have
much influence. The large difference between the results of the models employed by
VRDV 2011 and Thorne is caused by an in correct dredging profile used by Thorne,
which is much deeper and wider than the dredging project actually planned by Nicaragua.
The present report demonstrates that, had the correct dredging profile been used, Thorne's
model would have predicted an even smaller increase in discharge in the Lower San Juan
River than estimated in VRDV 2011 using a uniform flow approach. In reality, the
increased discharge in the Lower San Juan River is likely to be even less still, due to the
fact that Nicaragua’s dredgi ng program has been further reduced in scope since the
preparation of VRDV 2011.
Another issue raised by Costa Rica is that three dredges have been used by Nicaragua
instead of only one, as originally contemplat ed in the project’s Environmental Impact
Study. This report explains it is not the number, but rather the type, capacity and
efficiency, of dredges that determines the magnitude of a dredging project. The
Environmental Impact Study discussed a ra nge of dredges with varying capacities.
Nicaragua’s current planned production is l ess than the amount that could have been
dredged by one of the models mentioned in the Environmental Impact Study acting alone.
Nicaragua’s actual production is even smaller s till, due to the effici ency and mechanical
problems of the three dredges currently in u se. Even if Nicaragua were to procure the
additional dredges being considered by EPN , the total production capacity would still be
less than that of the larger dredges contemplated in the Environmental Impact Study.
Finally, this report explains that dredging in the San Juan River is not harmful but
necessary to protect the environment in the Lower San Juan wetlands because the
geological trend in the area leads to decreasing flows in the San Juan River.
529APPENDIX 2
Chapter 1:
Introduction
The central conclusion of VRDV 2011 was that the dredging project undertaken by
Nicaragua to deepen the lower stretches of the San Juan River to a depth of 2 m over a
bottom width of 20 m is a very limited intervention that will have a minimal to negligible
effect on the flow of the Colorado River and similarly minimal environmental impacts,
given the high natural sediment load of the San Juan River.
The actual performance of the dredging project to date has confirmed these
conclusions. The output of the dredges has b een lower than could have been expected,
and extra dredging was needed at in the Delta stretch of the River – at the bifurcation
with the Colorado River – as a result of rapid sedimentation.
Nothing in Costa Rica’s Memorial or Thorne meaningfully challenges the
conclusions reached in VRDV 2011. In fact, the available information, including the flow
calculations prepared by Thorne, as well the further reduced scope of the dredging
project, indicates that the actual impacts of the project are going to be even less than
concluded in VRDV 2011.
- 2 -
530 APPENDIX 2
Chapter 2:
The Small Scale of Nicaragua’s
Dredging Project
In its Request for the Indication of Provisional Measures, Costa Rica claimed that
3
Nicaragua’s dredging of the San Juan River will cause a diversion of 1,700 ms, or the
entire flow of the Colorado River, to the lo wer stretches of the San Juan River. VRDV
2011 predicted that the actual extra discharg e in the Lower San Juan downstream from
the bifurcation with the Colorado River as a result of Nicaragua’s dredging activities
would be between 20 - 50 m /s, which would decrease the flow of the Colorado River by
3 % or less(VRDV, 2011).The conduct of the dredging program to date, including its
further reduced scope, establis hes that the calculation in VRDV 2011 – which predicted
even less of a change in flow distribution th an the 5 % or less calculated in Nicaragua’s
Environmental Impact Study – is actually too high. The flow increase in the Lower San
Juan River, and the corresponding decrease in flow in the Colorado River, is likely to be
less than 1.5 %.
This chapter discusses the differences between the method applied in VRDV 2011 to
estimate the extra flow into the Lower San Juan, and the method applied by Thorne to
estimate this quantity. The chapter then inv estigates the effect of the actual number of
dredges employed in the project. The conclusion to be drawn from both analyses is that
Nicaragua’s dredging program is extremely modest in scope.
2.1: The effect of the dredging on the flow distribution
between the Colorado and San Juan rivers
VRDV 2011 estimated the effect that Nicar agua’s project to dredge a navigation
channel in the San Juan River – which at that point had been authorized but not yet
undertaken in earnest – would have on the disch arge of the San Juan River. Using Chezy
and Manning's equations for steady uniform flow, the report estimated that the extra flow
towards the Lower San Juan River would be only 20 - 50 m /s, which is only around 3%
of the discharge of the Colorado River (1400-1700 m /s). Such a small change would not
constitute a significant impact on the flow of the Colorado River (VRDV, 2011).
Thorne states that "a more sophisticated " model should be used to deal with the
unsteady, non-uniform flow conditions in the Delta (Thorne, p. II-29). He also argues that
the Darcy-Weisbach friction factor should be used instead of Manning's (Thorne, p. II-
28). These criticisms are without foundation, and the conclusions Thorne draws from his
analysis are incorrect. A change of friction formula cannot explain the large difference in
results between the models.
- 3 -
531APPENDIX 2
VRDV 2011 applied the value of Manning's friction factor, and fit the value with the
measured flow in the observed river profile. VRDV 2011could also have used the Darcy-
Weisbach friction factor and fit the value of that coefficient with the measured flow. The
resulting influence of the dredged profile on the discharge would have been the same.
This is clear from Figure 1, below, which shows the discharge calculated with the VRDV
2011 method (using Manning's friction factor in the Chezy equation, black lines) and
using the Darcy-Weisbach friction factor in the Chezy equation (blue lines). It is clear
that both methods produce the same result, as the black lines are under the blue lines due
to the perfect alignment.
Figure 1: Influence of Manning's and Darcy-We isbach friction factor on discharge.
Qextras the extra flow in the Lower San Juan River using Manning's friction
factor QextraDWis the extra flow calculated w ith the Darcy-Weisbach friction
factor.
As to the model utilized in VRDV 2011, a uniform flow approach was applied in
order to obtain a conservative estimate of the extra flow likely to continue from the San
Juan into the Lower San Juan due to the dredging (i.e., a value of extra flow to the Lower
San Juan that overestimates the actual change likely to result from Nicaragua’s dredging
activities). The equations utilized in VRDV 2011 are well founded, are commonly used,
and can be found in every textbook on basic fluid mechanics or open channel flow (e.g .,
Fox and McDonald, 1994; Chow, 1959). In a situation with a bifurcation, it can easily be
shown to always overestimate the extra discharge into the enlarged branch.
- 4 -
532 APPENDIX 2
Thorne applies the USACE's HEC-RAS model to estimate the effect of river
deepening on the flow distribution between the Colorado and San Juan rivers. This model
is based on the assumption of gradually varied flow (Thorne, p. vii). With such a model,
the flow in rivers with gradually varying width and depth and branches can be computed.
Water depth and channel bed level are assumed to change slowly in space. The velocity is
assumed to be distributed over the water column as in uniform flow, and the pressure
distribution is assumed to be hydrostatic. These assumptions are the same as those
underlying the model used in VRDV 2011. Table II.13 of Thorne’s report shows the
results for three different hypothetical “d redging scenarios”. The table shows that the
flow in the San Juan would increase to up to 30% (for Scenario 3) of the total flow in the
San Juan River upstream from the Delta, where the Colorado River splits off to the south.
Thorne then concludes that his values are in contrast with the results "based on a
uniform flow assumption by Van Rhee and de Vriend" (Thorne, p. II-36) – that is, the 3%
flow increase in the Lower San Juan, on top of the 10-11% of the Upper San Juan’s flow
that currently continues into the lower stretches of the River, for a total of less than 15%.
This suggests the difference in values to be due to the different models used. In fact,
however, the difference between the valu es obtained in VRDV 2011 and the values
obtained by Thorne is due to the latter’s incorrect assumption of how and to what extent
Nicaragua’s dredging activities will alter the cross-sectional profile in the San Juan River.
First of all, it is not clear whether Thorne’s model was built using the correct data. As
the underlying information has not been provided, it is impossible for us to reproduce the
model and test Thorne’s conclusions. Even if the model was built using the right data,
however, Thorne’s conclusions are incorrect because he used the model to calculate the
results of incorrect dredging scenarios.
VRDV 2011 assumed that – consistent with its environmental authorization – EPN
would restore a navigation channel of 20-30 m wide (20 m on the lower section, and 30
m on the upper section) in the existing river by deepening the riverbed to only 2 m across
such widths (MARENA Resolution No. 038-2008) . In contrast, Thorne has assumed that
Nicaragua’s dredging efforts will involve the dredging of much wider navigation
channels, even wider than the existing river (Thorne, p. II-36). His assumed scenarios, as
well as the baseline scenario used in his analysis, are summarized in the table below:
Table 1: Depth and Width of Thorne's Dredging Scenarios
Dredging Depth Width Discharge
Scenario [m] [m] [m /s]
Original Situation 4.75 90 287.4
Thorne Scenario 1 5.75 120 368.26
Thorne Scenario 2 6.75 150 440.12
Thorne Scenario 3 7.75 180 502.99
Table 1 shows that Thorne’s results depend on the assumption that the river will be
deepened over its total width, which will be s ubstantially enlarged itself. For a deepening
of 1 m (Thorne Scenario 1), he assumes that the total width of the river will be increased
by 30 m (i.e., from 90 m to 120 m), whereas fo r the 3 m deepening (Thorne Scenario 3)
- 5 -
533APPENDIX 2
the total width of the river will be doubled, from the original 90 m to 180 m, with the
entire width being dredged to a depth of 3 m.
The increases in flow area for the different scenarios, including the scenario used in
VRDV 2011, are summarized in Table 2. Clear ly, it is the large difference between the
cross-sectional geometries put into the flow calculations that is responsible for the
different outcomes, and not the difference in model concept or friction formula.
Table 2: Increase in Flow Area and Discharge
Increase in Increase in
Dredging Scenario 2 3
flow area [m ] Discharge [m /s]
Van Rhee & De Vriend (2011) 50 50
Thorne’s Scenario 1 231 80.6
Thorne’s Scenario 2 516 152.72
Thorne’s Scenario 3 855 215.59
It is not clear why, in running his model, Thorne has so drastically deviated from the
authorized dredging profiles. Neither is it clear over which length of the river these
enlarged sections are applied. The length of the dredged section in the Delta stretch of the
river (from Reyes up to 1.3 km upstream of Delta) is 6,650 m (EPN, 2012). If it is
assumed that this section was widened in Thorne’s HEC-RAS model, the dredging
2
volume to ach3eve the modeled river profile would v2ry between 231 m x36,650 m =
1,536,150 m (Thorne’s Scenario 1) and 855 m x 6,650 m = 5,685,750 m (Thorne’s
Scenario 3). These volumes are much larger that the volume currently planned to be
3
extracted along the total length of the dredging works – 395,395 m over a length of 32.8
km (EPN, 2012) – and they are therefore unrealistic.
3
Indeed, EPN reports that it plans to extract only 99,300 m from the Delta stretch
(EPN, 2012). If this planned dredging volume is divided by the length of the stretch, the
2 2
extra cross-sectional area is 14.9 m , which is less than the 50 m used for the
calculations in VRDV 2011. The difference betw een these two values is consistent with
the reduced scope of the dredging project (EPN, 2012; Quintero, 2011).
It is striking that the increase in flow calculated with Thorne’s HEC-RAS model is
actually moderate relative to the results of the less complicated but more conservative
approach applied in VRDV 2011. The ratio be tween the increase in flow area between
Thorne’s Scenario 3 and the dredged profile analyzed in VRDV 2011 is 855 m 2/50 m =
3 -1 3 -1
17.1, while the ratio of extra discharge is only 216 m s / 50 m s = 4.32. This is due to
the fact that the local slope and water level of the river is also influenced by enlarging the
profile in the gradually varying depth appro ach of HEC-RAS. This slope will decrease
with the enlargement, which will tend to re duce the discharge increase. In the uniform
flow approach applied in VRDV 2011, the effect of the reduced surface slope was not
taken into account, making the approach more conservative. That is, for both the original
and the dredged river profiles the same slope was used in the VRDV 2011 analysis. This
means that, if the HEC-RAS model were run based on inputs stemming from the planned
dredging profile as applied in VRDV 2011, the extra discharge to the San Juan would be
even less than 50 m /s, because the river slope for the dredged profile would be less than
in the VRDV 2011 calculations.
- 6 -
534 APPENDIX 2
The uniform flow approach applied in VRDV 2011 consistently over-estimates the
effect of dredging on the discharge in the Lower San Juan River. This becomes clear
when the effects of Thorne’s Scenarios 1, 2 and 3 are analyzed using the VRDV 2011
uniform flow approach (see Figure 2). Figure 2 shows the influence of the extra flow area
due to dredging on the extra discharge in the Lower San Juan computed with the two
different methods. The figure clearly demonstrates that the uniform flow approach is
conservative in comparison to Thorne’s HEC-RAS model. For the area of interest (the
2
planned 50 m profile enlargement near t3e origin of the graph), the VRDV 2011
approach produces the value of 50 m /s, whereas Thorne’s gradually varied flow
approach would yield a lower value of approximately 20 m /s. 3
Figure 2: Extra discharge in the Lower San Juan River as function of the extra flow area.
Clearly, if the revised and further reduced dredging scope were to be used in the
calculations, the extra discharge would be even less.
The proper conclusion is therefore that the application of a "more sophisticated
model developed during the 20 thand 21 thcenturies" (Thorne, p. II-29) – which Thorne
insists is a more appropriate approach (alt hough the gradually varied flow approach was,
th
in fact, also developed before the 20 century) – would lead to an even lower computed
extra discharge into the San Juan River than was estimated in VRDV 2011.
- 7 -
535APPENDIX 2
2.2: The effect of the number of dredges working on the
project
In paragraphs 3.82 and 5.108 of Costa Rica’s Memorial, an issue is made of the fact
that, although the Environmental Impact Study for Nicaragua’s dredging program
contemplated the use of one dredge, Nicaragua has in reality been using three dredges.
The argument appears to be that Nicaragua’s program is not actually a modest dredging
effort. This argument is both misleading and incorrect.
The use of more dredges does not necessarily result in a project that is larger in
scope. One larger and more efficient dredge ma y be able to complete more dredging per
unit time than three smaller, less efficient dredges. The amount actually extracted by each
dredge will depend on its capacity and efficiency.
Average production capacity is calculated by multiplying the production of the
dredge when it is actually working by an effi ciency factor. The efficiency factor can be
expressed in the number of hours dredging per week (“operational hours” or “OH”)
divided by the total number of hours per w eek (“service hours”). For a cutter suction
dredge in a good technical condition, worki ng in a sheltered environment (no wave
influence), a typical efficiency factor is 68 %.
In the Environmental Impact Study, it was contemplated that the dredging would be
conducted by cutter suction dredges. The following table of possible models was
included at pages 18-19 of that Study:
Dredges of this nature are known in th e dredging industry to have production
capacities ranging from 200 m /h (IHC Beaver 300) up to 2,000 m /h (IHC Beaver 8000).
Specifically, the approximate maximum produc tion capacities of the 8 dredges listed in
the Environmental Impact Study are provided in Table 3, below.
- 8 -
536 APPENDIX 2
Table 3: Production Capacity of Dredge Models Listed in EIS
Approximate
Dredge Max. Production
Capacity [m /h]
IHC Beaver 300 200
IHC Beaver 600 400
IHC Beaver 1200 500
IHC Beaver 1600 700
IHC Beaver 2400 850
IHC Beaver 3800 1,200
IHC Beaver 4600 1,600
IHC Beaver 8000 2,000
The total production per week of such dre dges depends, apart from the efficiency, on
the number of service hours per week. The follo wing table provides an idea of weekly
output for different numbers of service hours, taking the IHC Beaver 1200 dredge with a
capacity of 500 m /h as an example.
Table 4: Estimated Weekly Production of IHC Beaver 1200 Dredge
Service Weekly Output
3
Hours (eff = 68%) [m ]
7 days per week, 24 hrs per day 168 57,120
7 days per week, day-time shift (8 hrs) 56 19,040
5 days per week, day time shift (8 hrs) 40 13,600
In contrast, the three dredges actually utili zed by Nicaragua to date are two cutter
1
suction dredges (Soberanía 1 and Soberaní a 3) and an auger dredge (Soberanía 2) . The
Soberanía 3 is smaller than the IHC Beaver 300, the smallest dredged contemplated in the
EIS. The Soberanía 1 can be compared with a IHC Beaver 1200. The Soberanía 2 is a
very small dredge, smaller than all the dre dges listed in the Environmental Impact Study
and not very effective for this project. The maximum production capacities demonstrated
by these three Nicaraguan dredges are provided in Table 5, below:
1Dredges of this type and capacity are very small compared with the Trailing Suction Hopper
Dredger 'Lelystad' (total installed power 15,976 kW) employed in 2011 in Costa Rica at port Moin
3
where 1,200,000 m was dredged to deepen the access channel. See Van Oord equipment info
sheet; http://costarica.nlambassade.org/nieuws/2011/01/baggerbedrijf-van-oord-…-
begonnen-met-werkzaamheden-in-haven-moin.html; http://the-7-seas.blogspot.nl/.
- 9 -
537APPENDIX 2
Table 5: Production Capacity of Nicaraguan Dredges Used to Date (EPN, 2012)
Nicaraguan Production
Dredge Capacity [m /h]
Soberanía 1 300
Soberanía 2 10
Soberanía 3 120
TOTAL 430
Thus, it is not true that Nicaragua’s use of these three dredges renders its project
larger than the one-dredge project contemplat ed in the Environmental Impact Study, in
which dredges with a capacity of 500 to 2000 m /h were mentioned. Even if Nicaragua’s
three dredges would have worked perfectly at all times, the combined production of these
3
dredges would be not more than 500 m /h.
Moreover, Nicaragua’s three dredges have not actually worked as well as they might
have. During all of 2011 (12 months) the tota l production of the three dredges together
was 180,595 m (EPN, 2012), which equals an aver age weekly production of only 3,762
3
m . Thus, the three dredges together produced less than 28 % of the expected output of
only one dredge of the IHC Beaver 1200 type (which was in the lower range of the
dredges contemplated in the EIS), even if such a dredger were only working only 5 days
3
per week (i.e., 13,600 m ) (see Table 4, above). The reason for this very low performance
is:
One of Nicaragua’s dredges (Soberanía 2) is a small kind of auger dredge,
3
unsuitable for these soil conditions. Only 500 m were dredged by this
dredge in one year.
Low efficiency of Soberanía 1 (only 22%).
Low efficiency of Soberanía 3 (only 15%).
Due to their very low output, the total pr oduction of the three dredges Nicaragua has
utilized to date was much less than one dr edge normally can achieve, and certainly less
than would have been achieved by one of the larger dredges originally contemplated in
the Environmental Impact Study.
EPN is aware that its existing dredges are not optimal, and both the refurbishment of
the dredges and the procurement of new dr edges are being contemplated. If the latter
option is pursued, EPN suggests the purch ase of 2 additional cutter suction dredges
similar to the Soberanía 3 (EPN, 2012), whic h, as noted, has demonstrated a maximum
production capacity of 120 m /h. Even if such dredges are in fact procured, they could –
3
at optimum efficiency – only dredge approximately 150 m per hour each. Thus, if two
such dredges are added to the existing thr ee dredges already being used on the project,
the total production capacity would be less than 800 m /h, which is still less than half of
what could have been accomplished by one of the larger dredges contemplated in the
Environmental Impact Study.
- 10 -
538 APPENDIX 2
Chapter 3:
Impact of Nicaragua’s modest
dredging project
3.1: The lack of appreciable environmental harm
In VRDV 2011 it was concluded that, although the sediments in the bed of the San
Juan River are sandy, some fine sedime nt will be suspended during the dredging
activities. The plume formed as a result will extend down river until it settles down to
such an extent that the suspended sediment concentration is back at the background level.
Since the background suspended sediment c oncentration in the San Juan River is
significant (a fact confirmed by Thorne, who reports values up to 1,000 ppm in December
2010 – Thorne, p. II-32), and the increaseconcentration will be only temporary, the
effect on water quality and local species was expected to be minimal. The latest
information confirms these conclusions.
Apart from the deposition of dredged sediment, which in this case is taking place
exclusively on the Nicaraguan side of thever, the primary environmental impacts of
dredging activity are the suspension of sediments into the water column and alterations in
the hydrodynamic patterns of the waterway, which can affect species.
However, as explained in VRDV 2011, the Sa n Juan River is both naturally turbid
and relatively stable, such that both its water quality and hydrodynamics are likely to
suffer little impact as a result of Nicaragmodest dredging efforts. Thorne actually
confirms this conclusion, stating “Natural high sediment and nutrient concentrations in
the river are likely to limit impacts on idity and water quality that are customary
associated with dredging” (Thorne, p. vii).
Another important fact is that the San Ju an and Colorado Rivers experience seasonal
flow variations that are much greater than the change in discharge that is likely to result
from Nicaragua’s dredging activities. In other words, the rivers themselves as well as all
of the species who live in or rely upon them are accustomed to more fluctuation than the
dredging will cause. This is another indicator that any negative environmental effect of
Nicaragua’s modest activities will be insignificant.
- 11 -
539APPENDIX 2
3.2: The environmental benefits of the project
Nicaragua’s dredging program actually contributes to preserving the environment. As
Thorne correctly notes, river discharges to the Lower San Juan River will gradually
decrease without dredging due to the geological trends in the area (Thorne, p. II-10).
Apart from the navigation problems that alread y exist and will only be exacerbated if the
flow decreases, such a process will have a very adverse environmental effect on the
wetlands that are fed and sustained by the lower reaches of the San Juan River (Ramsar,
2011). Thus, Nicaragua’s dredging program is not only necessary to ensure the
navigability of the waterway, but also helps to ensure the survival of the wetlands of
international importance that rely upon th e River and its continued flow, including
Nicaragua’s Refugio de Vida Silvestre Rio San Juan and Costa Rica’s Humedal Caribe
Noreste.
Moreover, with the reduced river flows, sed iment transport to the mouth of the San
Juan will also decrease, which will have a de trimental effect on the morphology of the
coastal area. Erosion of the coast line that is no longer receiving sediment deposits from
river flow will be the inevitable result, togeth er with the associated loss of natural habitat
and other environmental consequences. This process is already underway as a result in
the reduction in the San Juan’s flow since the nineteenth century, which – as is clear from
Thorne’s analysis of the geomorphology of the delta region – has, along with other
factors, already led to the disappearance of mu ch land at the coast (Thorne, Part I). Thus,
Nicaragua’s efforts to dredge the Lower San Juan and maintain flow to the Sea contribute
to preventing future geomorphological change that would result in environmental harm.
The main origin of the suspended sediments is surface erosion in the catchment area
of the river. In this respect, the road construction project over a long distance on Costa
Rican territory parallel and very close to the River should be mentioned. Over a large
area, substantial vegetation has been removed and no measures have been taken to keep
sediment-laden surface runoff during heavy rainfall from flowing into the river (Costa
Rican Environmental Management Plan, 2012; CFIA Report, 2012). This influx will have
a notable effect on the total sediment concentration in the river and will increase
sedimentation. It is not unlikely that the decrease in river flows measured in 2011 and
2012 are related to this influence of the road construction (INETER, 2012).
- 12 -
540 APPENDIX 2
3.3: The importance of dredging
All around the world, dredging has played and continues to play a very important role
in the achievement and maintenance of economic growth and prosperity that is vital to
social and economic development. In particular, dredging is vital to the construction and
maintenance of much of the infrastructure upon which economic prosperity and social
well-being depend. It is also an important tool for restoring and enhancing the natural
environment. The enormous increase in global trade and transport, together with key
demographic developments like a large population growth in coastal areas, have created
demands that could not possibly be met without dredging (Call for papers WODCON XX
Conference).
Indeed, almost all major rivers and ports in the world require capital and maintenance
dredging in order to stay navigable, alth ough in many cases hydraulic structures such as
groynes are also in place to concentrate flow at low river discharge (see Figure 3).
Figure 3: Typical lowland river (Waal) with groynes.
Despite the fact that dredging is indispensable to keep most rivers navigable, Thorne
apparently objects to such dredging of th e San Juan River on the basis that "dredging
intended to attract flow away from the Rio Colorado and into the Rio San Juan represents
an attempt to artificially alter the natura l condition and fight the long term, geological
trend at the Delta" (Thorne, p. II-10). Th is is not a convincing argument against
Nicaragua’s dredging works. Indeed, if such an argument were a sound basis for rejecting
dredging works in general, many important rivers would be unnavigable and much of the
land upon which humans and other species rely would be under water.
As an example, the “natural condition” and “long term, geological trend” observed in
The Netherlands is the subsidence of the west part of this country at 10 mm per year
(Rijkswaterstaat, The Netherlands). At the same time, sea level has been rising for
hundreds of years by around 1.5 mm per year (Rijkswaterstaat, The Netherlands). If there
had been no dredging for river maintenance a nd the building of dikes in The Netherlands
during the past hundreds of years to “fight [this] long term, geological trend", as Thorne
puts it, the current map of this country would look like Figure 4.
- 13 -
541APPENDIX 2
Figure 4: Map of The Netherlands without dredging 2.
Certainly, it cannot be argued that Dutch efforts to save national territory are
improper because they involve fighting the na tural inclinations of the waterbodies at
issue, which are driven by long term, geological trends. The same must be said of
Nicaragua’s efforts to save the flow of its river.
2
Seehttp://www.kennislink.nl/publicaties/nederland-zeespiegel-bodemdaling-en-
watermanagement.
- 14 -
542 APPENDIX 2
Conclusion
The new information provided in Costa Rica’s Memorial, including the report of
Thorne, together with EPN’s information regarding the actual conduct of the dredging
project throughout 2011, confirms the conclusions of VRDV 2011.
Nicaragua’s dredging program is of extremely small scale. The effect on the river
discharge will be negligible and orders of ma gnitude less than natura l variations in river
flow.
The dredging works will only have a very lim ited effect of the extra flow discharged
into the Lower San Juan River. VRDV 2011 calculated the extra flow at around 3%. Both
the results of Thorne’s HEC-RAS model and the further reduced scope of the project
indicate that the actual amount of extra flow in the Lower San Juan will be even less
(most likely less than 1.5 %).
The dredges used by Nicaragua have not increased the scope of the project compared
to what was contemplated in the Environmen tal Impact Study. Even if EPN procures the
additional dredges discussed in its 2011 Annual Report, the project – which only involves
sufficient dredging to realise a navigation channel that is 2 m deep across a bottom width
of 20 m – will still be of extremely small scale. Moreover, even if all such additional
dredges are procured and used alongside Nicaragua’s three existing dredges, their
maximum capacity would still be lower than that of some of the dredges contemplated in
the Environmental Impact Study.
Negative environmental impacts of Nicaragua’s dredging activities, if any, are likely
to be insignificant, whereas the environmental benefits of the project are clear even from
Thorne’s own report.
It is entirely consistent with international practice for Nicaragua to utilize dredging as
a means not only to protect the environment that depends on the flow of the Lower San
Juan, but also to ensure its navigabilityeven if natural “long term, geological trends”
would eliminate that flow.
- 15 -
543APPENDIX 2
References
Chow, V.T., 1959, Open Channel Hydraulics, McGraw-Hill.
Costa Rican Ministries, 2012, “Environmenta l Management Plan for the Camino Juan
Rafael Mora Porras”.
CORASCO, 2006, “Final Report: Environmental Impact Study for the Project
‘Improvement of Navigation in the San Juan de Nicaragua River’ (Delta-San Juan de
Nicaragua)”.
EPN, 2012, "DREDGING PROJECT TECHNICAL EVALUATION ANALYSIS:
Improving Navigation on the San Juan River".
Federated Association of Engineers and Architects of Costa Rica (CFIA), 2012, “Report
on Inspection of the on the Border Road, Northern Area Parallel to the San Juan River”.
Fox, R.W., McDonald, A.T., 1994, Introduction to Fluid Mechanics, John Wiley & Sons.
INETER, 2012, “Summary of Flow Measurements”.
MARENA, 2008, “Administrative Resolution No. 038-2008”.
Quintero, 2011, Letter addressed to MARENA to announce the reduced scope of the
dredging works.
Ramsar Secretariat, 2011, “Ramsar Advisory Mission Report No. 69, North-eastern
Caribbean Wetland of International Importance (Humedal Caribe Noreste), Costa Rica”.
Thorne, C., 2012, "Certain activities carried out by Nicaragua in the border area (Costa
Rica v. Nicaragua", Nottingham University Consultants.
Van Rhee, C., De Vriend, H.J., 2011, “Morphological Stability of the San Juan River
delta, Nicaragua / Costa Rica", Delft University of Technology.
- 16 -
544 APPENDIX 2
Curriculum Vitae & Bibliography
of
Prof. Dr. ir. Cees van Rhee
Bennekom, The Netherlands, July 19, 2012
1 / 9
545APPENDIX 2
Contents
1 PERSONAL ...................................................................................................................... ............................ 3
2 ADDRESS ....................................................................................................................... .............................. 3
3 QUALIFICATIONS AND EXPERIENCE ................................................................................................ 4
4 ACADEMIC EXPERIENCE ....................................................................................................................... 6
BIBLIOGRAPHY .................................................................................................................. ............................... 7
2 / 9
546 APPENDIX 2
1 Personal
Name : Cornelis van Rhee
Date of birth : January 23, 1959
Place of birth : Leiden, The Netherlands
Citizenship : Dutch
Languages : Dutch (fluent), English (fluent) and German
2 Address
Wddrresses
Delft University of Technology
Faculty of 3me and CiTG
Mekelweg 2
2628 CD Delft
The Netherlands
Tel. :+31 15 2783973
Fax. :+31 15 2781836
E-mail : [email protected]
3 / 9
547APPENDIX 2
3 Qualifications and Experience
Employment record:
1984 – 1990 Employed at WL Delft Hydraulics, Delft, The Netherlands
1990 – present Employed at Van Oord Dredging and Marine Contractors b.v.
1997 – 2003 Detached on Delft University of Technology, Faculty of
3ME for a PhD Research
2003–2007 Detached on Delft University of Technology, Faculty of 3ME for a
research program financed by SSB (Stichting Speurwerk
Baggertechniek)
2007 – 2011 Senior Researcher at Van Oord Dredging and Marine Contractors b.v.
2007–present Full Professor Dredging Engi neering at the facu lty of Mechanical,
Maritime and Materials Engineer ing and the faculty of Civil
Engineering and Geosciences of TU Delft.
Special assignments:
1984 - 1990 WL Delft Hydraulics, Section Industrial Hydrodynamics
Project manager various experimental investigations in
relation to Dredging Technology Development,
The failure of steep under water slopes in front of dredging
equipment (breaching process).
The cutting of saturated sediments under water
The erosion of granular sediments with water jets
(Experimental investigation and instrumentation / data
processing development)
erosion of sediments at high flow velocity (experimental
investigation and physical modelling
1990–1993 HAM dredging and Mari ne Contractors, Resear ch engineer, Research
Department.
During this period Applied Research and Development was carried out
for the flowing subjects:
Draghead development. Invest igations on the effect of
draghead geometry, jet confi guration and process control on
draghead production
Offshore equipment. Modelling of the flow of stone / water
mixtures through vertical pipes. Modelling of the horizontal
and vertical discharge of sand / stone / water mixtures under
water to estimate impact velocities and resulting dump profiles
4 / 9
548 APPENDIX 2
Development of numerical models to simulate the
sedimentation process in a trailing suction hopper dredge.
Computer modelling of groundwater flow for vertical drain
installation and temporary under water slope stabilisation.
1993 – 1995 Head Production and Planning Department at West Kowloon II
Reclamation Project, Hong Kong.
Responsible for the planning of th e reclamation works and production
of dredging equipment on a large and complicated dredging project.
1995 - 1998 Senior estimator, Estimating, Planning and Production
Department for the area’s Middle East, South America and Offshore.
During this period involved in num erous tenders and responsible for
the estimation of the cost price of a project. Some examples:
The Martin Garcia Channel (Argentina). Capital and
maintenance dredging and involved in the arbitration procedure
after tender award
Solid ballasting of the Hibernia gravity based platform, Canada
NORFRA project. Pre- and post trenching of a gas pipeline on
te North Sea
1997 – 2004 Senior Research Engineer at the Engineering & Research
Department.
Research and development related to dredging processes.
Closely involved with the ne w building activities of the
Technical Department, for in stance advising and design of
dredging installation (underw ater pump and jet power,
draghead, loading and overflow installation of the Trailing
Suction Hopper Dredger HAM 318)
Geotechnical specialist on the field of soil improvement,
settlement and consolidation of soft soil.
2004 – 2007 Manager Dredging Research Van Oord Dredging and Marine
Contractors
Managing a research group of 8 people. The main tasks of the dredging
research department are:
Applied and basic research on th e field of dredging processes.
The products of these research activities are models which are
used to optimize and design th e dredging installation of the
dredging equipment.
Trouble shooting and production optimizing on projects.
Development of new dredging technology or adaptation of
existing equipment for special projects.
2007 – 2011 Senior Researcher at Van Oord Dredging and Marine Contractors.
Applied and basic research on th e field of dredging processes.
The products of these research activities are models which are
used to optimize and design th e dredging installation of the
dredging equipment
5 / 9
549APPENDIX 2
Academic Experience
Education
1977 – 1984 Study Civil Engineering, Delft University of Technology. The Netherlands.
Master thesis on the flow induced vibrations of a weir.
1997-2002 Part time (two days per week) Gra duate (Ph.D.) student at the Section of
Transport Technology, Faculty of M echanical, Maritime an Materials
Engineering Delft, The Netherlands. Do ctorate degree obtained in December
2002 (Cum Laude). Doctorate thesis “O n the sedimentation process in a
trailing suction hopper dredger”.
2002 – 2007 Part time Researcher, section of Dredging Engineering.
2007 – present Full Professor of Dredging Engineering.
Committees
Member of MARITIME ENGINEERING JOURNAL advisory panel of the
Institution of Civil Engineers (UK)
Member of the technical committee of the SSB (Stichting Speurwerk
Baggertechniek)
Member of the International Technical Committee of the Hydro Transport
Conference
Board member of CEDA (Central Dredging Association)
Chairman of paper committee of CEDA Dredging Days (bi-annual Conference
on Dredging topics)
Chairman of paper committee of the WODCON Conference
Member of the Technical Advisory Committee of the Maritime Innovation
Program
6 / 9
550 APPENDIX 2
Bibliography
Rhee, C. van; Steeghs, M.J.G.M., 1991, “Multi blade ploughs in saturated sand; model
cutting tests”, Dredging + Port Construction, 1991.
Rhee, C. van; Bezuyen, A.; 'Influence of seepage on stability of a sandy slope', Journal of
Geotechnical. Eng. of the ASCE, 1992.
Rhee, C. van; Bezuyen, A., 1998, “The breachi ng of sand investigated in large scale model
tests”, Proceedings 26th International Conference on Coastal Engineering, Copenhagen.
Rhee, C. van, Talmon, A.M., 2000, “Entrainment of sediment (or reduction of sedimentation)
at high concentration”, l0th International Symposium on Transport and Sedimentation of
Solid Particles, Wroclaw, Poland.
Rhee, C. van, 2001, “Numerical Simulation of the Sedimentation Process in a Trailing
Suction Hopper Dredge”, 16th World Dredging Congress and Exhibition (WODCON), Kuala
Lumpur.
Rhee, C. van, 2001, “Modelling the sedimentation process in a trailing suction hopper
dredge”, 4th International Conference on Multiphase Flows, New Orleans.
Rhee, C. van, d’ Angremond, C., Spengen, J. van, Lubking, P., 2002, “The influence of
entrained air on sedimentation in salt and fresh water “, International Conference on
Coastal Eng, Wales.
Rhee, C. van, 2002, “Modelling the sedime ntation process in a trailing suction hopper
dredger”, Terra et aqua, 86, 18-27.
Rhee, C. van, 2002, “Numerical modeling of th e flow and settling in a Trailing Suction
Hopper Dredge”, 15th International Conference on Hydrotranspot, Banff, Canada.
Rhee, C. van, 2002, “The influence of the bed shear stress on the sedimentation of
sand”, 11th International Symposium on Transport and Sedimentation of Solid Particles,
Gent, Belgium.
Rhee, C. van, 2002, “On the sedimentation process in a trailing suction hopper dredger”, PhD
Thesis, Delft University of Technology.
Rhee, C. van, Verhagen, S.A., 2004, “The flow of buoyant plumes in a hopper, 12th
International Symposium on Transport and Sedimentation of Solid Particles”, Prague.
Stienen, F., Matousek, V., Rhee, C. van,” Simu lation of solids behavior at wall of circular
slurry pipe using DEM”, 12th International Symposium on Tran sport and Sedimentation of
Solid Particles”, Prague.
Rhee, C. van, 2004, “Sediment settling and Pick -up at a flow velocity below the deposition
limit”, 16th International Conference on Hydrotransport, Santiago, Chile.
7 / 9
551APPENDIX 2
Vlasblom W.J., Hoff J. van 't, and Rhee C. van, 2005, “Quality improvement of dredged sand
on board a trailing suction hopper dredger”, CEDA Dredging Days November 2005,
Rotterdam, The Netherlands.
Rhee, C. van, 2007, “Erosion of granular sediments at high flow velocity”, 17th International
Conference on Hydrotransport, Cape Town, South Africa.
Miedema, S.A., Rhee, C. van, “A SENSITIVITY ANALYSIS ON THE EFFECTS OF
DIMENSIONS AND GEOMETRY OF TRAILING SUCTION HOPPER DREDGES”.
WODCON XIIX, ORLANDO, USA, 2007.
Aarninkhof, SGJ, Rosenbrand, WF, Rhee, C va n & Burt, TN, 2007, “The day after we stop
dredging: A world without sediment plumes?” In CEDA (E d.), Ceda Dredging Days 2007 -
The day after we stop dredging Dredging for in frastructure and public welfare (pp. 1-14).
Delft: CEDA.
Rhee, C. thn, 2008, “Transport and Sediment ation in the industry of dredging”, Keynote
paper, 14 International Symposium on Transport and Sedimentation of Solid Particles, St.
Petersburg. Russia.
Hofstra, C.F., Rhee, C van, Miedema, SA & Talmon, A.M., 2008, “On the particle
trajectories in dredge pump impellers”. In J. Sobota, S. Ivanov & V. Alexandrov (Eds.),
Proceeding of the 14th International Conferen ce on Transport & Sedimentation of Solid
Particles (pp. 157-163). Saint Petersburg: Saint Petersburg State Mining Institute.
Bisschop, F, Visser, PJ, Van Rhee, C, 2009. “Hindered erosion of granular sediments”, In s.n.
(Ed.), Ceda dredging days 2009-dredging tool s for the future (pp. 1-12). Delft: Central
Dredging Association.
Rhee, C. van, 2010, “Sediment entrainment at high flow velocity”, Journal of Hydraulic
Engineering, Vol. 136, No. 9, ASCE, 2010.
Rhee, C. van, 2010, “Numerical simulation of the bottom discharge process of a Trailing
Suction Hopper Dredge”, WODCON XIX, Beijing, China.
Hofstra, C.F., Miedema, S.A., Rhee, C. van, 2010, “Particle trajectories near impeller blades
in centrifugal dredge pumps”, WODCON XIX, Beijing, China.
Schrieck, G.L.M. van der, Rhee, C. van, 2010, “Physical scale modeling of dredging
processes in sand and gravel”, WODCON XIX, Beijing, China.
Abdeli, M., Miedema, S.A., Van Rhee, C., Scho tt, D.L., Alvarez Grima, M., 2010, “Discrete
Element Method Modelling of Sand Cutting”, WODCON XIX, Beijing, China.
Nobel, A.J., Cornelisse, J.M., Rhee, C. vth, 2010, “High speed recordings of a moving
submerged water jet in cohesive soil”, 20 International Conference on Water Jetting, Graz,
Austria.
8 / 9
552 APPENDIX 2
Rhee, C. van, Talmon, A.M., 2010, “Sedimentati on and erosion of sedime nts at high solids
concentration”, 18th International Conference on Hydrotransport, Rio de Janeiro, Brazil.
Talmon, A.M., Rhee, C. van, 2011, “Test Set-up for irregular vertical hydraulic transport in
deep ocean mining”, OMAE 2011, June 2011.
Rhee, C. van, 2011, “Numerical simulation of the backfilling process of a trench using a
trailing suction hopper dredge”, OMAE 2011, June 2011.
Rhee, C. van, 2011, "One dimensional sedimentation of multi-sized particles", 15th Transport
and Sedimentation Conference, Sept. 2011, Wroclaw, Poland.
Wit, L. de, Rhee, C. van, "Large eddy simulation of pulsed plumes in cross flow", 13th
European Turbulence Conference, Sept 2011, Poland.
Wijk, J.M. van, Talmon, A.M., Rhee, C. van, "Flow Assurance of Vertical Solid-Liquid Two
Phase Riser Flow During Deepsea Mining", OTC Conference, 2012.
9 / 9
553554 LIST OF ANNEXES
VOLUME II
Annex DOCUMENT
No.
1 Rives Second Report, 2 March 1888.
2 Despatches from United States Consuls in San Juan del Norte
1851-1906 (National Archives Microfilm Publication T-348,
roll 3), General Records of the Department of State, Record Group
59, NationalArchives Building, Washington D.C.
3 Despatches from United States Consuls in San Juan del Norte
1851-1906 (National Archives Microfilm Publication T-348, roll
5), General Records of the Department of State, Record Group 59,
NationalArchives Building, Washington D.C.
4 Despatches from United States Consuls in San Juan del Norte
1851-1906 (National Archives Microfilm Publication T-348, roll
7), General Records of the Department of State, Record Group 59,
NationalArchives Building, Washington D.C.
5 Whether Costa Rica is bound to co-operate in the preservation and
improvement of the San Juan River and the Bay of San Juan, and
in what manner; and whether Nicaragua can undertake any work
without considering the injury which may result to Costa Rica.
Argument on the Question of the validity of the Treaty of Limits
between Costa Rica and Nicaragua and other supplementary points
connected with it, (Washington, Gibson Bros., 1887) pp. 162-168
6 Cleto González Víquez, Temblores, Terremotos, Inundaciones y
Erupciones Volcánicas en Costa Rica (1608-1910), Tipografía de
AvelinoAlsina, San José, Costa Rica, 1910.
7 Environmental Impact Study for Improving Navigation on the San
Juan de Nicaragua River (Excerpts), September 2006.
555 8 Project Design Study (Excerpts) September 2006.
9 SpecificTermsofReferenceforthePreparationoftheEnvironmental
Impact Study for the Project "Dredging of the San Juan River",
Ministry of the Environment and Natural Resources (MARENA).
10 Executive Summary; Environmental Impact Document
"Improvement for Navigation on the Nicaragua San Juan River"
(Delta- Nicaragua San Juan River Stretch).
11 C.S. Diseño, “Study of flow behavior in the bifurcation San Juan
River – Colorado River.”
12 Technical Opinion, Environmental Impact Study Project
Improvement of Navigation on the San Juan de Nicaragua River,
28 November 2008.
13 EPN, “Environmental Management Plan forAdditions to the Project
Improvement of Navigation in the San Juan de Nicaragua River”,
September 2009.
14 MARENATechnical Monitoring Report from Inspection Conducted
24-26 November 2010.
15 Annex 4, Declaration of LesterAntonio Quintero Gomez, Technical
Manager of EPN, 16 December 2010.
16 INETER, Summary of Measurement of liquid and suspended solids
content during the years 2006, 2011 and 2012
17 Dredging Project Technical Evaluation Analysis, National Port
Authority 2011 (Annual Report), 23 January 2012.
18 Ministry of the Environment and Natural Resources (MARENA),
Report on site visit to the San Juan River Dredging Project,
from 21- 25 March 2006.
19 Report of Inspection Visit, Project "Improvement of Navigability of
the San Juan River", from 17 to 20 September 2006.
20 Report of Site Inspection Conducted 11-16 October 2006.
556 21 EPN “Report on the Visit Conducted to the San Juan River and
Considerations regarding its Cleaning and Dredging to Guarantee its
Permanent Navigation”, based on 6-7 February 2008 visit to the site.
22 Report of Site Inspection for Proposed ProjectAdditions Conducted
7-8 September 2009, Technical Report on the Inspection regarding
the Expansion of the Project "Improvement of the Navigability of
the San Juan River".
23 Excerpt of the "Judgment of Central American Court of Justice",
available at http://www.fonare.org/index.php?option=com_content
&view=article&id=59:fallo-de-la-ccj-ira-al-juicio-de-la-haya&
catid=3:newsflash&Itemid=18, 3 July 2012.
24 Speech of Mr. Rene Castro Salazar, Former Minister of Foreign
Affairs and Worship, before the Environmental Commission of the
LegislativeAssembly, September 8, 2010.
25 Excerpt of the Statement by the Deputy Minister of Environment
of Costa Rica,Ana Lorena Guevara, in the radio program "Nuestra
Voz" (Our Voice) hosted byAmelia Rueda,April 6, 2011.
26 Complete NicaraguanWhite Book, San Juan de Nicaragua River,
The Truths That Costa Rica Hides, 26 November 2010.
VOLUME III
Annex
No. LAWS, DECREES, ADMINISTRATIVE RESOLUTIONS AND
REGULATIONS
27 Excerpts of the Political Constitution of the Republic of Nicaragua.
28 Nicaraguan Decree No. 45-94, 28 October 1994.
29 Nicaraguan Law No. 217, 6 June 1996.
557 30 Excerpt of “ Dictamen Juridico 351, (C-351-2006), Mauricio Castro
Lizano, Deputy Attorney General (Procurador Adjunto)”, 31 August
2006 (1).
Excerpt of “Northern Channels (Tortuguero)” (2).
31 Nicaraguan Decree No. 01-2007, Regulation of Protected Areas in
Nicaragua, 8 January 2007.
32 Nicaraguan Law No. 647, 3 April 2008.
33 MARENAAdministrative Resolution No. 038-2008, 22 December
2008.
34 Ministry for the Environment and Natural Resources (MARENA)
Administrative Resolution No. 038-2008-A1, 30 October 2009.
35 Official Daily Gazette No. 46, Decree No. 36440-MP,Year CXXXIII.
La Uruca, San José, Costa Rica, 7 March 2011 (1).
By-laws and regulations, Presidency of the Republic, National
Commission on Risk Prevention andAttention to Emergencies, Decision
No. 0362-2011, Specific By-Laws regarding purchasing and contracts
procedures under exception mechanisms regime by virtue of the
Declaration of a State of Emergency by virtue of Decree No. 36440,
21 September 2011 (2).
MILITARY DOCUMENTS
36 Order n° 005 from the Chief of the South Military Detachment for
compliance of order from the Chief of staff regarding the implementation
of special measures based on provisional measures of protection ordered
by the International Court of Justice and maintenance of the anti-drug
trafficking plan, rural, security plan and presidential Decree 79/2009 at
the San Juan de Nicaragua directorate, 9 March 2011.
558 CORRESPONDENCE
37 Letter from Ricardo Echandi Z., Minister of Transport to the Manager of
the Institute of Lands and Colonies,11 February 1965.
38 Work Report of Official Pedro José Minas Núñez, National Police to
theAssistant Commissioner, Chief of the National Police, Rio San Juan,
2 August 2000.
39 Letter from Mr. Norman Caldera Cardenal, Former Minister of Foreign
Affairs of Nicaragua to Mr. Alejandro Fiallos, Executive President of the
National Ports Company, Reference MRE/DM/037/01/06, 10 January
2006.
40 Letter from Mr. Alejandro Fiallos Navarro, Executive President of
National Ports Company to Mr C.Arturo Harding Lacayo, Ministry for
the Environment and Natural Resources, 18 January 2006.
41 Letter from Hilda Espinoza, General Director for Environmental Quality,
Ministry for the Environment and Natural Resources to Mr. Alejandro
Fiallos Navarro Executive President of National Ports Company,
3 February 2006.
42 Memorandum from Mr. Engineer Cristóbal (Tito) Sequeira Minister,
Ministry for the Environment and Natural Resources to Mr. Bayardo
Quintero, Director General for ProtectedAreas, Reference CSG-091-02-
06, 28 February 2006 (1).
Memorandum from Mr. Engineer Cristóbal (Tito) Sequeira Minister,
Ministry for the Environment and Natural Resources to Dr. Iván Ortega
Director, Secretariat of the Southeast Nicaragua Biosphere Reserve,
Reference CSG-091-02-06, 28 February 2006 (2).
Memorandum from Mr. Engineer Cristóbal (Tito) Sequeira Minister,
Ministry for the Environment and Natural Resources to Dr. Juan José
Romero Coordinator, PROCUENCA Río San Juan, Reference CSG-
091-02-06, 28 February 2006 (3).
Memorandum from Mr. Engineer Cristóbal (Tito) Sequeira Minister,
Ministry for the Environment and Natural Resources to Engineer
Arcadio Choza Head of the General Directorate for Natural Resources
and Biodiversity, Reference CSG-091-02-06,28 February 2006 (4).
559 43 Letter from Mr. Engineer Cristóbal (Tito) Sequeira Minister, Ministry
for the Environment and Natural Resources to Mr. Claudio Gutierrez,
Executive Director, INETER, Reference DM-CSG-101-02-06,
28 February 2006 (1).
Letter from Mr. Engineer Cristóbal (Tito) SequeiraMinister, Ministry for
the Environment and Natural Resources to Mr. Ricardo Vega Jackson,
Minister MTI, Reference DM-CSG-101-02-06, 28 February 2006(2).
44 Memorandum from Arcadio Choza, Director General of MARENA’s
Department of Natural Resources and Biodiversity to Silvia Martinez E.,
MARENADirector for Water Resources, 3 March 2006.
45 Letter from Hilda Espinoza, General Director for Environmental Quality,
Ministry for the Environment and Natural Resources to Mr. Alejandro
Fiallos Navarro Executive President of National Ports Company,
Reference DGCA-HEU-C 189-03-2006, 20 March 2006.
46 Letter from Engineer Noel S. Salinas Alvarado, Technical Manager,
National Ports Company to Members of the Institutional Commission,
Río San Juan Dredging Project, Engineer Milton Medina MARENA
Delegate, Engineer Sergio Cordonero INETER delegate, Reference
GT-0237-03-2006, 25 March 2006.
47 Letter from Hilda Espinoza, General Director for Environmental Quality,
Ministry for the Environment and Natural Resources to Mr. Alejandro
Fiallos Navarro Executive President of National Port Authority,
Reference DGCA-HEU-C-413-07-2006, 3 July 2006 (1).
Memorandum from Hilda Espinoza, General Director for Environmental
Quality, Ministry for the Environment and Natural Resources to
Dr. Ivan Ortega G. Director of the Secretariat of the Biosphere Reserve
of Southeast Nicaragua, Reference DGCA–HE–324–07-06, 4 July 2006
(2).
56048 Memorandum from Edda Martínez, Director of Environmental Evaluation
and Protection, Ministry for the Environment and Natural Resources
(MARENA) to Adelina Ramírez, Documentation Center MARENA,
Reference DGCA– EM – M291, 2August 2006 (1).
Memorandum from Edda Martínez, Director of Environmental
Evaluation and Protection, Ministry for the Environment and Natural
Resources (MARENA) to José Luis Galeano, MARENA Delegate Río
San Juan, Reference DGCA– EM – M292, 2August 2006 (2).
Letter from Edda Martínez, Director of Environmental Evaluation
and Protection, Ministry for the Environment and Natural Resources
(MARENA) to Mr. Francisco Díaz Rivas, Municipality El Castillo,
Reference DGCA– EM – C208, 2August 2006 (3).
Letter from Edda Martínez, Director of Environmental Evaluation
and Protection, Ministry for the Environment and Natural Resources
(MARENA) to Mr. César Collado Parada, Municipality San Juan del
Norte Reference DGCA– EM – C209, 2August 2006 (4).
Letter from Edda Martínez, Director of Environmental Evaluation
and Protection, Ministry for the Environment and Natural Resources
(MARENA) to Alejandro Fiallos, engineer, Reference DGCA – EM –
C210, 2August 2006 (5).
49 Letter from Ing. Leonardo Zacarias Coreo T. General Manager Corea y
Asociados S.A. (CORASCO) to Liliam Osejo Sacasa, Deputy Minister
Environment and Natural Resources (MARENA), 21 September 2006.
50 Letter from Ing. Noel S. SalinasAlvarado Technical Manager , National
PortAuthority to Hilda Espinoza General Directorate of Environmental
Quality Control, Ministry for the Environment and Natural Resources
(MARENA) Reference GT-0791-09-2006, 22 September 2006.
51 Letter from Ing. Noel S. SalinasAlvarado Technical Manager, National Port
Authority to Cristóbal Sequeira Minister, Ministry for the Environment
and Natural Resources (MARENA) Reference GT-0794-09-2006,
25 September 2006.
52 Letter from Ing. Leonardo Zacarías Corea T. General Manager Corea y
Asociados S.A. (CORASCO) to Ing. Noel S. SalinasAlvarado Technical
Manager, National PortAuthority, 2 October 2006.
561 53 Letter fromAlejandro Fiallos Navarro Executive President, National Port
Authority to Mr. Tito Sequeira Minister, Ministry for the Environment
and Natural Resources (MARENA), Reference PE-AFN-0855-0-06,
3 October 2006.
54 Letter from IngAlejandro Fiallos Navarro Executive President, National
PortAuthority to Cristóbal Sequeira Minister, Ministry of Environment
and Natural Resources (MARENA), 5 October 2006.
55 Letter from Edda Martínez Director for Environmental Oversight and
Protection DGCA, MARENAto Mr. Jurgen Sengelman Director DGTA/
MTI, Reference DGCA-EM-C258, 10 October 2006 (1).
Letter from Edda Martínez Director for Environmental Oversight and
Protection DGCA, MARENA to Mr. Luis Palacios Director for Water
Resources INETER, Reference DGCA-EM-C259, 10 October 2006 (2).
Memorandum from Edda Martínez Director for Environmental Oversight
and Protection DGCA, MARENA to José Luis Galeno Director SERB
– SENMARENA, Reference DGCA-EM-M 396, 10 October 2006 (3).
Memorandum from Edda Martínez Director for Environmental Oversight
and Protection DGCA, MARENAto Iván Ortega Director for Protected
Areas, MARENA, Reference DGCA-EM-M 397, 10 October 2006 (4).
56 Memorandum from Iván Ortega Gasteazoro, MARENA General
Director for ProtectedAreas to Hilda Espinoza Urbina, Director General
of MARENA’s Department of Environmental Quality, 25 October 2006.
57 Letter from Noel S. Salinas Alvarado of EPN to Zacarías Corea of
CORASCO, Reference GT-0954-11-2006, 23 November 2006.
58 Work Report of Enrique Jardiel Arteaga Núñez, Second Chief of the
National Police, Río San Juan Delegation to Commissioner José Miguel
Pérez Solis, Head of Police Division, Río San Juan, 20 June 2008.
59 Letter from EPN Executive President, Virgilio Silva Munguía to Hilda
Espinoza Urbina, Director General of MARENA’s Department of
Environmental Quality, Reference PE-VSM-0754-07-2008, 15 July
2008.
60 Memorandum from Julio C. Ordoñez L. to Executive President, Virgilio
Silva Munguía ( accompanying report), 13August 2008.
56261 EPN Memorandum from Arosman Mendieta Jerez, Supervising
Engineer to Lester Quintero Gomez, Technical Div. Manager, National
Ports Company (accompanying minutes), Reference IS-AMJ-12-09-08,
23 September 2008.
62 Letter from Engineer Leonardo Zacarias Corea T. General Manager
Corea &Associates (CORASCO) to RobertoAraquistaín Vice Minister
MARENA, 21 October 2008.
63 Letter from Carlos Robelo Raffone, NicaraguanAmbassador in Geneva
and Permanent Representative of Nicaragua before the United Nations
and other International Organizations toAnada Tiéga, Ramsar Secretary
General, RAMSAR, 30 November 2010.
64 Letter from Carlos Robelo Raffone, NicaraguanAmbassador in Geneva
and Permanent Representative of Nicaragua before the United Nations
and other International Organizations toAnada Tiéga, Ramsar Secretary
General, 2 December 2010.
65 Letter from Eng. Lester A. Quintero G. Technical Manager, National
Port Authority to Ms. Hilda Espinoza Director General Environmental
Quality MARENA, Reference GT-LACQG-0402-04-2011, 5April 2011.
66 Letter from H.E. Mr. Jorge Urbina-Ortega, co-Agent of Costa Rica to the
Registrar of the ICJ, Reference ECRPB-025-12, 3 July 2012.
DIPLOMATIC CORRESPONDENCEAND RECORDS
67 Diplomatic Note from the Minister of Foreign Affairs of Nicaragua
to the Minister of Foreign Affairs of Costa Rica, Reference MRE/
DGAJ/127/03111, 24 March 2011.
68 Diplomatic Note from the Minister of Foreign Affairs of Costa Rica
to the Minister of Foreign Affairs of Nicaragua, Reference DM-
DVM-217-2011,30 March 2011.
69 Diplomatic Note from the Minister of Foreign Affairs of Nicaragua to
the Minister of Foreign Affairs of Costa Rica, Reference MRE/DM/
AJST/349/04/11, 1 April 2011.
563 70 Diplomatic Note from the Minister of Foreign Affairs of Costa Rica to
the Minister of Foreign Affairs of Nicaragua, Reference DM-225-11,
4 April 2011.
71 Note from the Minister of ForeignAffairs of Nicaragua to the Minister of
ForeignAffairs of Costa Rica, Reference MRE/DVM/AJST/500/11/11,
29 November 2011.
72 Diplomatic note from the Minister of Foreign Affairs and Worship of
Costa Rica to the Minister of Foreign Affairs of Nicaragua, Reference
DM-AM-601-11, 29 November 2011.
73 Note from the Minister of ForeignAffairs of Nicaragua to the Minister of
Foreign Affairs of Costa Rica, Reference MRE/DVS/VJW/0685/12/11,
10 December 2011.
74 Diplomatic note from the Minister of Foreign Affairs and Worship of
Costa Rica to the Minister of Foreign Affairs of Nicaragua, Reference
DVM-AM-286-11, 20 December 2011.
75 Diplomatic Note from the Minister of ForeignAffairs of Costa Rica to the
Minister of Foreign Affairs of Nicaragua, Reference DM-AM-046-12,
27 January 2012.
76 Diplomatic Note from the Minister of Foreign Affairs of Nicaragua to
the Minister of Foreign Affairs of Costa Rica, Reference MRE/DM-
AJ/116/02/12, 13 February 2012.
77 Diplomatic Note from the Minister of Foreign Affairs and Worship of
Costa Rica to the Minister of Foreign Affairs of Nicaragua, Reference
DM-AM-045-12, 26 January 2012 (1).
Diplomatic Note from the Minister of ForeignAffairs of Nicaragua to the
Minister of ForeignAffairs and Worship of Costa Rica, Reference MRE/
DM-AJ/118/02/12, 13 February 2012 (2).
Diplomatic Note from the Minister of Foreign Affairs and Worship of
Costa Rica to the Minister of Foreign Affairs of Nicaragua, Reference
DM-AM-144-12, 14 March 2012 (3).
564 MINUTES OF MEETINGS
78 Joint Declaration of the Presidents of the Republics of Costa Rica,
RafaelAngel Calderon Fournier and Nicaragua, Mrs. Violeta Barrios de
Chamorro, Managua, Republic of Nicaragua, 31 January 1991 (1).
Final Record of the IV Binational Nicaragua-Costa Rica meeting,
12 – 13 May 1997 (2).
Final Record of the V Binational Nicaragua-Costa Rica meeting,
19 – 20 October 2006 (3).
VII Meeting of the Nicaragua-Costa Rica, Bi-national Commission,
3 October 2008 (4).
79 Minutes of the Public Consultation in San Juan de Nicaragua, 9August
2006 (1).
Certification of the Municipal Council of San Juan de Nicaragua,
10August 2006 (2).
AFFIDAVITS
80 Affidavit of Jose Magdiel Perez Solis (POLICE), 15 December 2010.
81 Affidavit of Gregorio de Jesús Aburto Ortiz (POLICE), 15 December
2010.
82 Affidavit of Luis Fernando Barrantes Jiménez (POLICE), 15 December
2010.
83 Affidavit of Douglas Rafael Pichardo Ramírez (POLICE), 15 December
2010.
84 Affidavit of SubanAntonioYuri Valle Olivares (POLICE), 15 December
2010.
85 Affidavit of Juan Francisco Gutiérrez Espinoza (MILITARY),
15 December 2010.
86 Affidavit of Manuel Salvador Mora Ortiz (MILITARY), 15 December
2010.
565 87 Affidavit of Norman Javier Juárez Blanco (MILITARY), 15 December
2010.
88 Affidavit of Denis Membreño Rivas (MILITARY), 15 December 2010.
89 Affidavit of Farle Isidro Roa Traña, 16 December 2010.
90 Declaration of Elsa Maria Vivas Soto, Agrocultural Engineer, General
Department of Environmental Quality of the Ministry of the Environment
and Natural Resources, 20 December 2010.
PRESS REPORTS
91 El Nuevo Diario, Press Notice of theAvailability of the Environmental
Impact Document for the Project “Dredging of the San Juan River”,
7 August 2006.
92 El Nuevo Diario, Nicaragua Ticotimes.net, “Costa Rican Police Forces
Sent to Nicaraguan Border”,
22 October, 2010 (1).
El Nuevo Diario, Nicaragua Encourages Costa Ricans to join the military ▯
reserves on the anniversary of the abolition of the Costa Rican army, 1
December 2010 (2).
93 El 19 Digital, “Nicaragua will go to The Hague for delimitation of the
border with Costa Rica”, 2 November 2010.
94 A.M. Costa Rica Third NewsPage, “Costa Rica mobilizes troops along
Nicaraguan line”, available at http://www.amcostarica.com/102210.htm
(last visited 21 July 2012), 22 October 2010.
95 TicoTimes.net,Adam Williams, “Tough talk as Costa Rica - Nicaragua
border tightens”, 14 January 2011.
96 La Prensa, Nicaragua, “Costa Rican Foreign Minister starts tour against
Nicaragua” 17 January 2011.
97 EFE, “Deputies call the Foreign Minister of Costa Rica a ‘bully’and
‘outdated’”, 20 September 2011.
56698 University Seminar, “Environmental damage feared due to construction
of highway parallel to Rio San Juan”, 1 November 2011.
99 El País, Costa Rica, “Chinchilla Defends Highway Criticized by
Nicaragua, Rejects Dialogue”,(Source: EFE / 13 December 2011),
14 December 2011.
100 El Nuevo Diario, Nicaragua, “Outrage everywhere over San Juan
River parallel highway, No Studies Done for Costa Rican Highway”,
15 December 2011.
101 El Nuevo Diario, Nicaragua, “Costa Rica affirms Central American
Court is politicized in favor of Nicaragua” (Source: EFE│7/1/2012),
7 January 2012.
102 El Nuevo Diario, Nicaragua, “Costa Rican Vice-President suggests
eating the San Juan”, 23 January 2012.
103 La Nación, Costa Rica “Conavi Built a Dirt Road along the Border with-
out a Single Design Plan”, 23 May 2012.
104 La Nación, Costa Rica “Government avoided applying environmental
control in border trail”, 24 May 2012.
105 Press release from CONAVI to the public, 25 May 2012.
106 El Pais, Costa Rica, “Faced with Criticism, Conavi Confirms to Have
Done Work on 332 Kilometers of Roads around Route 1856”, 26 May
2012.
107 La Nación, Costa Rica “Serious errors expose trail to risk of collapse
during the rainy season”, 28 May 2012.
108 Crhoy.com, “EngineersAssociation: ‘Emergency Decree does not justify
absence of engineering principles”, 30 May 2012.
109 Diario Extra, “Government acknowledges mistakes in the construction
of the trail”, available athttp://www.diarioextra.com/2012/mayo/30/
nacionales13.php, 30 May 2012.
567 110 La Nación, Costa Rica, “Chinchilla: There may be errors, but road project
should continue”, 31 May 2012.
111 Crhoy.com, “Path construction supervisors informed problems and the
lack of oversight”, available at http://www.crhoy.com/supervisores-de-
trocha-senalaron-problemas-e-inexistencia-de-controles/,11 June 2012.
VOLUME IV
Annex
No. REPORTS
112 UNITAR/UNOSAT, Morphological and Environmental Change
Assessment: San Juan River Area (including lsla Portillos and
Calero), Costa Rica, January 2011.
113 UNITAR/UNOSAT, “Update 1: Morphological and Environmental
Change Assessment from 14 December 2010 to 24 January 2011
San Juan RiverArea, Costa Rica,” available atwww.rree.go.cr/file-
noti.php?id_file=183, 10 February 2011.
114 Van Rhee & De Vriend, Delft University of Technology,
“Morphological Stability of the San Juan River delta, Nicaragua /
Costa Rica,” 4 January 2011.
115 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.
116 Costa Rican Environmental Management Plan for the Rafael Mora
Porras Road,April 2012.
117 Association of Federated Engineers and Architects of Costa Rica
(CFIAReport), 8 June 2012.
568 MAPS
118 Map of the Republic of Nicaragua (INETER) available at
http://www.ineter.gob.ni/.
119 BaronABulow 1851 (A).
2010 Satellite Image (B).
Land Info Image of River (C).
Map of the Republic of Nicaragua by Maximilian Sonnestern
1858 (D).
120 Map of 1831 by Mr. George Peacock with additions up to 1859.
121 Central America, Nicaragua San Juan del Norte or Greytown,
Maxwell chart of 1888.
122 Republic of Nicaragua, by L. Robelin (191-) (A).
Republic of Nicaragua, byA. Demersseman (1923) (B).
Nicaragua Ministry of Development, General Department of
Cartography (196-(C).
Nicaragua, by Richard Mayer 1920 (D).
Map of the Republic of Nicaragua and part of Honduras and Costa
Rica, by Clifford D. Ham (1924) (E).
Nicaragua Ministry of Development, General Department of
Cartography (1965) (F).
Nicaragua Ministry of Development, General Department of
Cartography (1966) (G).
123 US Engineer Office Nicaragua Canal Survey (1929-31).
124 Costa Rica, U.S. Central Intelligence Agency, 1970, G4860
1970 U51.
569 125 Costa Rica, U.S. Central Intelligence Agency, 1970 (2), G 4860
1970 U52.
126 Official Map of Costa Rican, Geograpich Institute of Costa Rica,
1971.
127 Texaco (1978).
128 Nicaragua, U.S. Central IntelligenceAgency (1979).
129 Costa Rica, U.S. Central Intelligence Agency, 1983, G 4860
1983 U5.
130 INETER Map of Costa Rican Navigation System.
PHOTOGRAPHS/SATELLITE IMAGE/AERIALIMAGE
131 1940 Image.
132 US Government, 12 January 1961.
133 1961Aerial Image (2).
134 Government of Costa Rica, Terra Project, 13 December 1997.
135 2007 Satellite Photograph.
136 2010 Satellite Image.
137 Photograph of Trees requiring removal from the area adjacent to
the caño, Source: Site visit by Ambassador Carlos Argüello on 09
September 2010.
138 Photographs of trees and soil along the route of the road, Source: Site
visit on the 1st of December, 2011.
Note: This photograph was taken from the San Juan River.
570139 Photographs of fragile soils removal.
140 Photographs of the modification of the drainage system. Source; Site
visit on the 1st of December, 2011.
Note: This photograph was taken from the San Juan River.
141 Photographs of the destruction of the natural habitat, Source: El
Nuevo Diario (The New Daily), Nicaragua “Environmentalist
corroborate damage by the Costa Rican road in Río San Juan on
sight, Violation of sovereignty”, 5 December 2011.
142 Photographs of the destruction of the inherent scenic values and
eco-tourism potential of the San Juan River.
571
Counter-Memorial of Nicaragua