Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) - Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) - The Court finds tha

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. 2013/35
22 November2013

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

Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v. Costa Rica)

The Court finds that Nicaraguamust refrain from any dredging and other activities
in the disputed territory and must, in particular, refrain from work of

any kind on the two new caños, and that it must fill the trench
on the beach north of the eastern caño within two weeks

THE HAGUE, 22 November 2013. T he International Court of Justice (ICJ), the principal
judicial organ of the United Nations, today delivered its Order on the request for the indication of
new provisional measures submitted by Costa Rica on 24 September 2013 (see Press Release
No. 2013/23) in the case concerning Certain Activities carried out by Nicaragua in the Border Area
(Costa Rica v. Nicaragua), with which has been joined the case concerning Construction of a Road
in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). This request was prompted by

the construction by Nicaragua of two new artificial channels (or caños ) in the “disputed territory”.
That territory was defined by the Court , in its Order of 8 March 2011 indicating provisional
measures (see Press Release No. 2011/6), as “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
[of 2011], the right bank of the San Juan river up to its mouth at the Caribbean Sea a nd the Harbor
Head lagoon”.

Today, after reaffirming, unanimously, the provisional measures indicated in its Order of
8 March 2011, the Court indicated the following provisional measures:

 it decided, unanimously, that Nicaragua should refrain from any dredging and other activities
in the disputed territory, and should , in particular, refrain from work of any kind on the two
new caños;

 it also decided, unanimously, notwithstanding the provisions of the previous point and
paragraph 86 (1) of the Order of 8 March 2011, that Nicaragua should fill the trench on the
beach north of the eastern caño within two weeks from the date of the present Order ,
immediately inform the Court of the completion of the filling of the trench and, within one

week from the said completion, submit to it a report containing all necessary details, including
photographic evidence; - 2 -

 it further found, unanimously, that, except as needed for implementing the obligation under the

previous point, Nicaragua should (i) cause the removal from th e disputed territory of any
personnel, whether civilian, police or security and (ii) prevent any such personnel from
entering the disputed territory;

 it also found, unanimously , that Nicaragua should cause the removal from and prevent the
entrance into the disputed territory of any private persons under its jurisdiction or control;

 it also held, by fifteen votes to one , that, following consultation with the Secretariat of the
Ramsar Convention and after giving Nicaragua prior notice , Costa Rica might take appropriate
measures related to the two new caños , to the extent necessary to prevent irreparable prejudice
to the environment of the disputed territory and that, in taking these measures, Costa Rica
should avoid any adverse effects on the San Juan River; and

 lastly, the Court decided, unanimously, that the Parties should regularly inform it, at

three-month intervals, as to the compliance with the above provisional measures.

Reasoning of the Court

1. Prima facie jurisdiction (paras. 21-23)

The Court recalls that Costa Rica seeks to found the jurisdiction of the Court in this case on
Article XXXI of the American Treaty on Pacific Settlement signed at Bogotá on 30 April 1948 and
on the declarations of acceptance of compulsory jurisdiction made by the two Parties. In its Order

of 8 March 2011, the Court had already found that the instruments invoked by Costa Rica
appeared, prima facie, to afford a basis on which the Court might have jurisdiction to rule on the
merits. In these circumstances, the Court considers that it may entertain the present request for the
indication of new provisional measures.

2. The rights whose protection is sought and the measures requested (paras. 24-33)

The Court recalls that the power to indicate provisional measures under Articl e 41 of its
Statute has as its object the preservation of the respective rights claimed by the parties in a case,
pending its decision on the merits thereof. Therefore, the Court may exercise this power only if it
is satisfied that the rights asserted by the requesting party are at least plausible . Moreover, a link
must exist between the rights which form the subject of the proceedings before the Court on the
merits of the case and the provisional measures being sought.

The Court observes that the rights which Costa Rica seeks to protect are the rights it claims

to sovereignty over Isla Portillos, to territorial integrity and its right to protect the environment in
those areas over which it is sovereign. It finds that the rights for which Costa Rica seek s protection
are plausible.

The Court then considers the issue of the link between the rights claimed and the provisional
measures requested. In the view of the Court, this link does indeed exist in respect of the first three
measures requested by Costa Rica , the first being aimed, in particular, at the cessation of work of

any kind on the two new caños in the disputed territory , the second request ing that Nicaragua be
ordered to immediately withdraw from the disputed territory any personnel, infrastructure and
equipment introduced by it, or by any persons under its jurisdiction or coming from its territory ,
and the third aimed at ensuring that Costa Rica be permitted to undertake remediation works in the
disputed territory on the two new caños and the sur rounding areas, to the extent necessary to
prevent irreparable prejudice being caused to the disputed territory. However, the Court does not
consider it necessary to establish a link between Costa Rica’s claimed rights and the fourth

provisional measure sought, which is that each Party shall inform the Court as to its compliance
with any provisional measures that may be indicated by the Court. In the Court’s view, this request - 3 -

does not aim to protect Costa Rica’s rights but rather seeks to ensure complian ce with any
provisional measures indicated by the Court.

3. Risk of irreparable prejudice and urgency (paras. 34-50)

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

The Court seeks to establish whether the situation in the disputed territory, and in particular,
the caños and the trench situated near the eastern caño , as they currently stand, pose a risk of
irreparable prejudice to the rights claimed by Costa Rica. Given the evidence before it, the Court is
satisfied that, in view of the length, breadth and position of that trench, there is a real risk that the
trench could reach the Caribbean Sea either as a result of natu ral elements or by human actions, or
a combination of both. A n alteration of the course of the San Juan River could then ensue, with

serious consequences for the rights claimed by Costa Rica . The Court is therefore of the opinion
that the situation in the disputed territory reveals the existence of a real risk of irreparable prejudice
to the rights claimed by the Applicant in this case.

The Court moreover considers that there is urgency for the following reasons: (i) during the
rainy season, the increas ed flow of water in the San Juan River , and consequently in the eastern
caño, could extend the trench and connect it with the sea, thereby potentially creating a new course
for the San Juan River ; (ii) the trench could also easily be connected to the sea, with minimum

effort and equipment, by persons accessing this area from Nicaraguan territory ; (iii) a Nicaraguan
military encampment is located only metre s away from the trench; and (iv) Nicaragua advised the
Court of the location of the dredgers, but di d not rule out the presence in the disputed territory of
other equipment that could be used to extend the trench. In this regard, the Court is not convinced
that the instructions given by the President of Nicaragua to the Executive President of the Nation al
Port Authority to immediately cease the cl eansing works in the Delta area and to withd raw the
personnel and machinery in the disputed territory , and the assurances by which the Agent of

Nicaragua indicated that his Government considers itself bound not to undertake activities likely to
connect any of the two caños with the sea and to prevent any person or group of persons from
doing so, are sufficient to remove the imminent risk of irreparable prejudice.

*

The Court concludes from the foregoing that it ought to indicate provisional measures to
address the new situation prevailing in the disputed territory and states that these measures will

supplement those already in force under the Order of 8 March 2011.

*

Composition of the Court

The Court was composed as follows: President Tomka; Vice- President Sepúlveda-Amor;
Judges Owada, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue,
Donoghue, Gaja, Sebutinde, Bhandari; Judges ad hoc Guillaume, Dugard; Registrar Couvreur.

* - 4 -

Judge Cançado Trindade appends a separate opinion to the Order; Judges ad hoc Guillaume
and Dugard append declarations to the Order.

___________

A summary of the Order appears in the document “Summary No. 2013/ 3”, to which
summaries of the opinion and declaratio ns are annexed. In addition, this 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”.

___________

Note: The Court’s press releases do not constitute official documents.

___________

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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, Associate Information Officer (+31 (0)70 302 2394)
Ms Genoveva Madurga, Administrative Assistant (+31 (0)70 302 2396)