Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) - Request for the indication of provisional measures - The Court requests the Parties to refrain from sending t

INTERNATIONAL COURT OF JUSTICE

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

Press Release
Unofficial

No. 2011/6
8 March 2011

Certain Activities carried out by Nicaragua in the Border Area
(Costa Rica v. Nicaragua)

Request for the indication of provisional measures

The Court requests the Parties to refrain from sending to, or maintaining in the disputed
territory, including the caño, any personnel, whether civilian, police or security;
it authorizes Costa Rica, in certain specific circumstances, to dispatch civilian

personnel there charged with the protection of the environment; and it
calls on the Parties not to aggravate or extend the dispute
before the Court or make it more difficult to resolve

THE HAGUE, 8 March 2011. The International Court of Justice (ICJ), the principal judicial
organ of the United Nations, today gave its decision on the request for the indication of provisional
measures submitted by Costa Rica in the case concerning Certain Activities carried out by
Nicaragua in the Border Area (Costa Rica v. Nicaragua).

In its Order, the Court indicates the following provisional measures:

U“na)nimously,

Each Party shall refrain from sending to, or maintaining in the disputed territory, including

the caño, any personnel, whether civilian, police or security;

(2) By thirteen votes to four,

Notwithstanding point(1) above, Costa Rica ma y 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 bei ng caused to the part of the wetland where that
territory is situated; Costa Rica shall consulith 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;

IN FAVOUR : President Owada; Vice-President Tomka; Judges Koroma, Al-Khasawneh,
Simma, Abraham, Keith, Bennouna, Cançado Tr indade, Yusuf, Greenwood, Donoghue;
Judge ad hoc Dugard;

AGAINST : JudgesSepúlveda-Amor, Skotnikov, Xue; Judge ad hoc Guillaume; - 2 -

U(na)nimously,

Each Party shall refrain from any action which might aggravate or extend the dispute before
the Court or make it more difficult to resolve;

U(na)nimously,

Each Party shall inform the Court as to its compliance with the above provisional measures.”

History of the proceedings

The history of the proceedings can be found in Press Releases Nos.2010/38 of
19November2010 (on the Application instituting proceedings) and 2011/5 of 23February2011
(on the request for the indication of provisional measures submitted by Costa Rica).

Reasoning of the Court

Prima facie jurisdiction (paras. 49-52)

Having noted that Nicaragua, in the present proceedings, did not contest its jurisdiction to
entertain the dispute, the Court considers that the instruments invoked by Costa Rica appear, prima
facie, to afford a basis on which the Court might have jurisdiction to rule on the merits, enabling it
to indicate provisional measures if it considers that the circumstances so require.

Plausible character of the rights whose prot ection is being sought and link between these
rights and the measures requested (paras. 53-62)

The Court recalls that its power to indicate provisional measures under Article41 of the
Statute has as its object the preservation of the respective rights of the parties pending its decision.
Therefore, the Court may exercise this power only if it is satisfied that the rights asserted by a party
are at least plausible, and that a link exists between the rights which form the subject of the

proceedings before the Court on the merits of the case and the provisional measures being sought.

⎯ Plausible character of the rights whose protection is being sought (par
as. 55-59)

Costa Rica alleges that the rights claimed by it and forming the subject of the case on the
merits are, on the one hand, its right to assert sovereignty over the entirety of Isla Portillos and over
the Colorado river and, on the other hand, its right to protect the environment in those areas over
which it is sovereign. Nicaragua, for its part, cont ends that it holds the title to sovereignty over the

northern part of Isla Portillos, that is to say,the area of wetland of some three square kilometres
between the right bank of the disputed caño , the right bank of the San Juan river up to its mouth at
the Caribbean Sea and the Harbor Head lagoon (her einafter the “disputed territory”), and argues
that its dredging of the San Juan river, over which it has sovereignty, has only a negligible impact

on the flow of the Colorado river, over which Costa Rica has sovereignty.

As regards the right to assert sovereignty over the disputed territory, the Court states that, at
this stage of the proceedings, it cannot settle the Parties’ competing claims and is not called upon to

determine once and for all whether the rights claime d by each of them exist; for the purposes of
considering the request for the indication of provi sional measures, the Court needs only to decide
whether the rights claimed by the Applicant on the merits, and for which it is seeking protection,
are plausible.

After a careful examination of the evidence and arguments presented by the Parties, the
Court concludes that the title to sovereignty claimed by Costa Rica over the entirety of Isla
Portillos is plausible. It adds that it is not called upon to rule on the plausibility of the title to

sovereignty over the disputed territory advanced by Nicaragua. The Court points out further that - 3 -

the provisional measures it may indicate would no t prejudge any title, and that the Parties’
conflicting claims cannot hinder the exercise of the Court’s power under its Statute to indicate such

measures.

The Court finds that the right claimed by Costa Rica to request the suspension of the
dredging operations on the San Juan river if they threaten seriously to impair navigation on the

Colorado river or to damage Costa Rican territory is also plausible.

⎯ Link between the rights whose protection is being sought and the measures requested
(paras. 60-62)

Taking the view that the continuation or resumption of the disputed activities by Nicaragua
on Isla Portillos would be likely to affect the rights of sovereignty which might be adjudged on the
merits to belong to Costa Rica, the Court consid ers that a link exists between these rights and the

first provisional measure being sought, which is aimed at ensuring that Nicaragua will refrain from
any activity “in the area comprising the entirety of Isla Portillos”.

The Court further believes that, since there is a risk that the rights which might be adjudged

on the merits to belong to Costa Rica would be aff ected if it were established that the continuation
of the Nicaraguan dredging operations on the San Juan river threatened seriously to impair
navigation on the Colorado river or to cause damage to Costa Rica’s territory, a link exists between
these rights and the second provisional measure bei ng sought, which concerns the suspension of

Nicaragua’s “dredging programme in the River San Juan adjacent to the relevant area”.

Lastly, the Court considers that the final provisional measure sought by Costa Rica, aimed at
ensuring that Nicaragua refrains “from any other action which might prejudice the rights of Costa

Rica, or which may aggravate or extend the dis pute before the Court” pending the “determination
of this case on the merits”, being very broadly worded, is linked to the rights which form the
subject of the case before the Court on the merits, in so far as it is a measure complementing more
specific measures protecting those same rights.

Risk of irreparable prejudice and urgency (paras. 63-73)

The Court recalls that it has the power to indicate provisional measures when irreparable

prejudice could be caused to the rights which are in dispute, and that this power will be exercised
only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice
may be caused to those rights.

It observes that Costa Rica maintains: (i)th at “Nicaraguan armed forces continue to be
present on Isla Portillos in breach of Costa Rica’s sovereign rights”; (ii)that Nicaragua “is
continuing to damage the territory of Costa Rica, posing a serious threat to its internationally
protected wetlands and forests”; and (iii)that “N icaragua[, which] is attempting to unilaterally

adjust, to its own benefit, a River the right ba nk of which forms a valid, lawful and agreed
border... cannot be permitted to continue to deviate the San Juan River through Costa Rica’s
territory in this manner, so as to impose on Costa Rica and the Court a fait accompli”.

The Court points out that Costa Rica wishes the status quo ante to be restored, pending the
Court’s judgment on the merits, and has indicated that several of its rights, including its right to
sovereignty and territorial integrity, are under threat of irreparable prejudice as a result of
Nicaragua’s activities.

The Court notes that Costa Rica adds that the works undertaken by Nicaragua in the disputed
territory will have the effect of causing flooding and damage to Costa Rican territory, as well as
geomorphological changes, and that the dredging of the San Juan river carried out by Nicaragua

will result in similar effects, as well as significantly reducing the flow of the Colorado river. - 4 -

It further observes that Costa Rica contends that the ongoing presence of Nicaraguan armed
forces on Costa Rica’s territory is contributing to a political situation of extreme hostility and

tension which may lead to the aggravation and/or extension of the dispute.

The Court also notes that Nicaragua, having main tained that the activities carried out within
its own territory, the environmental impact of which had been duly assessed beforehand, were not

likely to cause imminent damage to Costa Rica, asserted that the cleaning and clearing operations
in respect of the caño were over and finished, that none of its armed forces were presently stationed
on Isla Portillos, and that it did not intend to send any troops or other personnel to the disputed
area, nor to establish a military post there in the future.

However, the Court points out that Nicaragua h as stated that, in connection with the current
replanting of trees, its Ministry of the Environment “will send inspectors to the site periodically in
order to monitor the reforestation process and any changes which might occur in the region,

including the Harbor Head lagoo n”, and that since “[t]he caño is no longer obstructed”, “[i]t is
possible to patrol the area on the river, as has al ways been the case, for the purposes of enforcing
the law, combating drug trafficking and organized crime, and protecting the environment”.

Consideration of the provisional measures requested by Costa Rica, and decision of the Court
(paras. 73-85)

In the light of this information, the Court considers the first provisional measure requested

by Costa Rica, namely that “[p]ending the determination of this case on the merits, Nicaragua shall
not, in the area comprising the entirety of Isla Portillos...: (1)station any of its troops or other
personnel; (2)engage in the construction or enlargement of a canal; (3)fell trees or remove
vegetation or soil; (4) dump sediment”.

Taking note of Nicaragua’s statements concer ning the ending of the works in the area of the
caño, the Court concludes that, in the circumstances of the case as they now stand, there is no need
to indicate the measures numbered (2), (3) and (4) as set out above.

However, given that Nicaragua intends to ca rry out certain activities, if only occasionally, in
the disputed territory, including on the caño , the Court finds that provisional measures should be
indicated, since this situation creates an imminent risk of irreparable prejudice to CostaRica’s

claimed title to sovereignty over the said territory and to the rights deriving therefrom, and gives
rise to a real and present risk of incidents liable to cause irremediable harm in the form of bodily
injury or death.

The Court therefore considers that each Party must refrain from sending to, or maintaining in
the disputed territory, including the caño , any personnel, whether civ ilian, police or security, until
such time as the dispute on the merits has been d ecided or the Parties have come to an agreement
on this subject. The Court further concludes that each Party has the responsibility to monitor that

territory from the territory over which it unquestionably holds sovereignty, and that it is for the
Parties’ police or security forces to co-operate with each other in a spirit of good neighbourliness,
in particular to combat any criminal activity which may develop in the disputed territory.

Having observed that, in the disputed bor der area, Costa Rica and Nicaragua have
respectively designated, under the Ramsar Convention, the “Humedal Caribe Noreste” and the
“Refugio de Vida Silvestre Río San Juan” as wetl ands of international importance, the Court
considers that, pending delivery of the Judgment on the merits, Costa Rica must be in a position to

avoid irreparable prejudice being caused to that part of the “Humedal Caribe Noreste” wetland
where the disputed territory is situated. It finds that, for this purpose, Cost a Rica must be able to
dispatch civilian personnel charged with the prot ection of the environment to the said territory,
including the caño, but only in so far as it is necessary to ensure that no such prejudice be caused.

It adds that Costa Rica must consult with the Secretariat of the Ramsar Convention in regard to - 5 -

these actions, give Nicaragua prior notice of th em and use its best endeavours to find common
solutions with Nicaragua in this respect.

As regards the second provisional measure requested by Costa Rica, requiring Nicaragua to
suspend its dredging programme in the San Juan river adjacent to the relevant area, the Court finds
that it cannot be concluded at this stage from the evidence adduced by the Parties that the dredging

of the San Juan river is creating a risk of irrepa rable 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 rights Costa Rica claims in the present case, the risk would be imminent.

Having pointed out that it has the power under its Statute to indicate provisional measures
that are in whole or in part other than those requested, or measures that are addressed to the party
which has itself made the request, and that its or ders on provisional measures have binding effect
and thus create international legal obligations which both Parties are required to comply with, the

Court considers it appropriate in the circumstances to indicate complementary measures, calling on
both Parties to refrain from any act which may aggravate or extend the dispute or render it more
difficult of solution.

The Court adds that the decision given in the present proceedings in no way prejudges the
question of its jurisdiction to deal with the me rits of the case or any questions relating to the
admissibility of the Application, or relating to the merits themselves, and that it leaves unaffected
the right of the Governments of Costa Rica and Ni caragua to submit arguments in respect of those

questions.

Composition of the Court

The Court was composed as follows: President Owada; Vice-President Tomka;
Judges Koroma, Al-Khasawneh, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov,
CançadoTrindade, Yusuf, Greenwood, Xue, Donoghue; Judges ad hoc Guillaume, Dugard;
Registrar Couvreur.

Judges oroma and Sepúlveda-Amor appe nd separate opinions to the Order.
Judges Skotnikov, Greenwood and Xue append decl arations to the Order. Judge ad hoc Guillaume
appends a declaration to the Order. Judge ad hoc Dugard appends a separate opinion to the Order.

*

A summary of the Order appears in the document “Summary No. 2011/1”. The present press
release, the summary of the Order and the full text of the Order can be found on the Court’s
website (www.icj-cij.org) under “Cases”.

___________

Information Department:

Mr. Andrey Poskakukhin, First Secretary of the Court, Head of Department (+31 (0)70 302 2336)

Mr. Boris Heim, Information Officer (+31 (0)70 302 2337)
Ms Joanne Moore, Assistant Information Officer (+31 (0)70 302 2394)
Ms Genoveva Madurga, Administrative Assistant (+31 (0)70 302 2396)