Public sitting held on Friday 8 November 2013, at 10 a.m., at the Peace Palace, President Tomka presiding, in the cases concerning Construction of a Road in Costa Rica along the San Juan River (Nicara

Document Number
152-20131108-ORA-01-00-BI
Document Type
Incidental Proceedings
Number (Press Release, Order, etc)
2013/31
Date of the Document
Bilingual Document File
Bilingual Content

Corrigé
Corrected

CR 2013/31

International Court Cour internationale
of Justice de Justice

THE HAGUE LA HAYE

YEAR 2013

Public sitting

held on Friday8 November2013, at 10 a.m., at the Peace Palace,

President Tomka presiding,

in the cases concerning Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v. Costa Rica); Certain Activities carried out by Nicaragua
in the Border Area (Costa Rica v. Nicaragua)

________________

VERBATIM RECORD
________________

ANNÉE 2013

Audience publique

tenue le vendredi8 novembre 2013, à 10 heures, au Palais de la Paix,

sous la présidence de M. Tomka, président,

dans les affaires relatives à Construction d’une route au Costa Rica le long du fleuve San Juan
(Nicaragua c. Costa Rica) ; Certaines activités menées par le Nicaragua
dans la région frontalière (Costa Rica c. Nicaragua)

____________________

COMPTE RENDU
____________________ - 2 -

Present: President Tomka
Vice-President Sepúlveda-Amor

Judges Owada
Abraham
Keith
Bennouna
Cançado Trindade
Yusuf
Greenwood

Xue
Donoghue
Gaja
Sebutinde
Bhandari
Judge ad hoc Dugard

Registrar Couvreur

 - 3 -

Présents : M. Tomka, président
M. Sepúlveda-Amor, vice-président

MM. Owada
Abraham
Keith
Bennouna
Cançado Trindade
Yusuf
Greenwood

Mmes Xue
Donoghue
M. Gaja
Mme Sebutinde
M. Bhandari, juges
M. Dugard, juge ad hoc

M. Couvreur, greffier

 - 4 -

The Government of Nicaragua is represented by:

H.E. Mr. CarlosJosé Argüello Gómez, Ambassador of Nicaragua to the Kingdom of the
Netherlands,

as Agent and Counsel;

Mr. Stephen C. McCaffrey, Professor of International Law at the University of the Pacific,
McGeorge Sch ool of Law, Sacramento, former M ember and former Chairman of the
International Law Commission,

Mr. Alain Pellet, Professor at the University Paris Ouest, Nanterre -La Défense, former member and
former Chairman of the International Law Commission, member of the Institut de droit
international,

Mr. Paul S. Reichler, Attorney-at-Law, Foley Hoag LLP, Washington D.C., member of the Bars of
the United States Supreme Court and the District of Columbia,

as Counsel and Advocates;

Mr. César Vega Masís, Director of Juridical Affairs, Sovereignty and Territory, Ministry of
Foreign Affairs of Nicaragua,

Mr. Walner Molina Pérez, Juridical Adviser, Ministry of Foreign Affairs of Nicaragua,

Mr. Julio César Saborio, Juridical Adviser, Ministry of Foreign Affairs of Nicaragua,

Mr. Lawrence H. Martin, Foley Hoag LLP, Washington D.C., member of the Bars of the United
States Supreme Court, the District of Columbia and the Commonwealth of Massachusetts,

as Counsel;

Mr. EdgardoSobenes Obregon, Counsellor, Embassy of Nicaragua in the Kingdom of the
Netherlands,

Ms Claudia Loza Obregon, First Secretary, Embassy of Nicaragua in th e Kingdom of the

Netherlands,

Mr. Benjamin Samson, Researcher, Centre de droit international de Nanterre (CEDIN), University
of Paris Ouest, Nanterre-La Défense,

Ms Clara E. Brillembourg, Foley Hoag LLP, member of the Bars of the United States Supreme
Court, the District of Columbia and New York,

as Assistant Counsel;

Ms Sherly Noguera, Consul General, Ministry of Foreign Affairs of Nicaragua,

as Assistant. - 5 -

Le Gouvernement du Nicaragua est représenté par :

S. Exc. M. CarlosJosé ArgüelloGómez, ambassadeur de la République du Nicaragua auprès du
Royaume des Pays-Bas,

comme agent et conseil ;

M. Stephen C. McCaffrey, professeur de droit international à la McGeorge School of Law de
l’Université du Pacifique à Sacramento (Etats- Unis d’Amérique), ancien membre et ancien
président de la Commission du droit international,

M. Alain Pellet, professeur à l’Université de Paris Ouest (Nanterre-La Défense), ancien membre et
ancien président de la Commission du droit international, membre de l’Institut de droit
international,

M. Paul S. Reichler, avocat au cabinet Foley Hoag LLP ( Washington D.C.), membre des barreaux
de la Cour suprême des Etats-Unis d’Amérique et du district de Columbia,

comme conseils et avocats ;

M. César Vega Masís, directeur des affaires juridiqu es, de la souveraineté et du territoire au
ministère des affaires étrangères du Nicaragua,

M. Walner Molina Pérez, conseiller juridique au ministère des affaires étrangères du Nicaragua,

M. Julio César Saborio, conseiller juridique au ministère des affaires étrangères du Nicaragua,

M. Lawrence H. Martin, avocat au cabinet Foley Hoag LLP ( Washington D.C.) , membre des
barreaux de la Cour suprême des Etats- Unis d’Amérique, du district de Columbia et du
Commonwealth du Massachusetts,

comme conseils ;

M. Edgardo Sobenes Obregon, conseiller à l’ambassade du Nicaragua au Royaume des Pays-Bas,

Mme Claudia Loza Obregon, premier secrétaire à l’ambassade du Nicaragua au Royaume des
Pays-Bas,

M. Benjamin Samson, chercheur, Centre de droit international de Nanterre (CED IN), Université
Paris Ouest (Nanterre-La Défense),

Mme Clara E. Brillembourg, avocat au cabinet Foley Hoag LLP ( Washington D.C.), membre des
barreaux de la Cour suprême des Etats- Unis d’Amérique, du district de Columbia et de

New York,
comme conseils adjoints;

Mme Sheryl Noguera, consul général, ministère des affaires étrangères du Nicaragua,

comme assistante. - 6 -

The Government of Costa Rica is represented by:

H.E. Mr. Edgar Ugalde Álvarez, Ambassador of Costa Rica to the Organization of American
States, Washington D.C.,

as Agent;

H.E. Mr. Jorge Urbina, Ambassador of Costa Rica to the Kingdom of the Netherlands,

as Co-Agent;

Mr. Sergio Ugalde, Senior Adviser to the Ministry of Foreign Affairs and Worship of Cost a Rica,
Member of the Permanent Court of Arbitration,

as Co-Agent, Counsel and Advocate;

Mr. Marcelo Kohen, Professor of International Law at the Graduate Institute of International and
Development Studies, Geneva; member of the Institut de droit international,

Mr. Samuel Wordsworth Q.C., member of the English Bar, member of the Paris Bar, Essex Court
Chambers,

Mr. Arnoldo Brenes, Senior Adviser to the Ministry of Foreign Affairs and Worship of Costa Rica,
member of the Costa Rican Bar,

Ms Kate Parlett, Solicitor admitted in Queensland, Australia, and in England and Wales,

as Counsel and Advocates;

Mr. Ricardo Otarola, Minister Counsellor and Consul General of Costa Rica to the Republic of
Colombia,

Mr. Gustavo Campos, Minister Counsellor and Consul General of Costa Rica to the Kingdom of
the Netherlands,

Ms Ana Marcela Calderón, Minister Counsellor at the Costa Rican Embassy in the Kingdom of the

Netherlands,

Ms Katherine Del Mar, Ph.D., Graduate Institute of International and Development Studies,
Geneva,

Mr. Rowan Nicholson, Research Assistant, Lauterpacht Centre for International Law, University of
Cambridge,

as Advisers. - 7 -

Le Gouvernement du Costa Rica est représenté par :

S. Exc. M. Edgar Ugalde Álvarez, ambassadeur de la République du Costa Rica auprès de
l’Organisation des Etats américains,

comme agent ;

S. Exc. M. Jorge Urbina, ambassadeur de la République du Costa Rica auprès du Royaume des
Pays-Bas,

comme coagent ;

M. Sergio Ugalde, conseiller principal auprès du ministère des affaires étrangères et du culte du
Costa Rica, membre de la Cour permanente d’arbitrage,

comme coagent, conseil et avocat ;

M. Marcelo Kohen, professeur de droit international à l’Institut de hautes études internationales et
du développement de Genève, membre de l’Institut de droit international,

M. Samuel Wordsworth, QC, membre des barreaux d’Angleterre et de Paris, Essex Court
Chambers,

M. Arnoldo Brenes, conseiller principal auprès du ministère des affaires étrangères et du culte du
Costa Rica, membre du barreau du Costa Rica,

Mme Kate Parlett, solicitor (Queensland (Australie) et Angleterre et pays de Galles),

comme conseils et avocats ;

M. Ricardo Otarola, ministre-conseiller, consul général du Costa Rica en République de Colombie,

M. Gustavo Campos, ministre-conseiller, consul général du Costa Rica au Royaume des Pays-Bas,

Mme Ana Marcela Calderón, ministre-conseiller de l’ambassade du Costa Rica au Royaume des
Pays-Bas,

Mme Katherine Del Mar, titulaire d’un doctorat de l’Institut de hautes études internationales et du
développement de Genève,

M. Rowan Nicholson, assistant de recherche au Lauterpacht Centre for International Law de
l’Université de Cambridge,

comme conseillers. - 8 -

The PRESIDENT: Please be seated. Good morning. The sitting is now open and the Court

meets to hear the second round of oral observations of Costa Rica on the Request for the indication

of provisional measures filed by Nicaragua.

For reasons duly communicated to me, Judge Skotnikov and Judge ad hoc Guillaume are not

able to sit today.

I now give the floor to Dr. K ate Parlett to start the presentation of Costa Rica in the second

round. You have the floor, Madam.

Ms PARLETT:

FACTS RELEVANT TO THE RISK OF IRREPARABLE PREJUDICE

A. Introduction

1. Mr. President, Members of the Court, it is a n honour to appear befor e you on behalf of

Costa Rica, and a privilege to have been asked by Costa Rica to address certain of the underlying

facts in the present case.

2. There are three issues I want to address: f irst, the environmental impact study for the

road; second, the scope and effectiveness of the remediation works which have been carried out

and which are underway ; and finally, Costa Rica ’s plans for resuming construction of the

unfinished parts of the road. Mr. Wordsworth will then explain why there is no real or i mminent

risk of irreparable prejudice such as would justify the ordering of provisional measures ; and he

will be followed by Mr. Ugalde, who will address the absence of any urgency for Nicaragua’ s

Request. Ambassador Edgar Ugalde Álvarez will close Costa Rica’s second round and will read

Costa Rica’s submissions.

B. Environmentalimpact study

3. Turning to the environmental impact study, yesterday counsel for Nicaragua took a new

approach to this aspect of Nicaragua’ s Request. Having asked the Court t o order that Costa Rica - 9 -

provide “the Environmental Im pact Assessment Study” for the r oad , Nicaragua now says that it

was actually seeking a study of the impact of the planned new works to complete the road.

4. It is perhaps unsurprising that Nicaragua has moved away from its provisional measures

request for the Environmental Impact Assessment for the existing r oad. As Costa Rica explained

on Wednesday, the question whether Nicaragua is entitled to receive such an Assessment is a

matter for the merits 2. Nicaragua says that it is entitled to receive one and that Costa Rica breached

international law by failing to provide it ; and you heard from Professor Pellet yesterday

Nicaragua’s argument on that by reference to the Convention on the Law of the Non- Navigational

Uses of International Watercourses. Costa Rica says that it was not obliged to provide one because

of the emergency circumstances in which the road was constructed  an emergency brought about

by Nicaragua’ s conduct. A request for an impact as sessment for the existing road cannot be

regarded as a “measure [] o f interim protection”, because it is “designed to obtain an interim

3
judgment in favour of a part of the claim formulated in the Application” . Professor Pellet

appeared to accept as much yes terday 4. An order requiring Costa Rica to produce the

Environmental Impact Assessment would prejudge the merits of this case.

5. But Nicaragua’s newly interpreted R equest must also fail. And the reason for this is

simple: irrespective of whether Nicaragua would be entitled on the merits to receive such a

document, Costa Rica has conducted studies on the impact of the r oad. Pursuant to Costa Rican

law, a study of the impact of a project which is already constructed is designated an

5
“Environmental Diagnostic” . This type of study has two main objectives : first, to identify the

negative impacts and risks of the activity on the environment ; and secondly, to recommend

environmental control measures necessary to prevent or to mitigate those negative impact s and

risks.

1
Letter from Nicaragua to the ICJ, 11 Oct.2013, Ref. HOL-EMB-196, p. 4.
2CR 2013/29, p. 22, para. 2 (Wordsworth); p. 49, para. 22 (Kohen).

3Factory at Chorzów (Germany v. Poland), Order of 21 November 1927, P.C.I.J., Series A, No. 12, p. 10.
4
CR 2013/30, pp. 31-32, para. 7 (Pellet).
5Costa Rica, Ministerial Resolution 02752 of 2009, Technical Guide for an Environmental Diagnos EDA,

2 Nov. 2009, tab 2 of Costa Rica’s judges’ folders. - 10 -

6. This is being done in respect of the road. The Environmental Diagnostic is being prepared

by a team of experts from the Tropical Science Center, a well -respected Costa Rican organization

which was established in 1962. The Center has extensive experience in scientific environmental

research in areas subject to tropical conditions, including the preparation of environmental impact

assessments.

7. This Environmental Diagnostic will be extensive. It will cover the entire 108 km of the

road in the vicinity of the San Juan River, from Boundary Marker 2 to Delta Costa Rica . It will

consider the existing physical environment where the r oad is constructed, including the climate,

hydrology, terrestrial and aquatic flora and fauna, and ecology.

8. The Environmental Diagnostic will comply full y with the requirements of Costa Rican

law. Those requirements are specified in Ministerial Resolution No . 02752 of 2009, which you

will find at tab 2 of your folders 6. And as Mr. Brenes told you on Tuesda y, Costa Rica intends to

submit this Environmental Diagnostic with its Counter -Memorial, in six weeks’ time. In the Pulp

Mills case, although applying there a bilateral treaty, you specifically addressed the requirement to

conduct an environmental impact study under customary international law, noting that the content

of such a study is a matter for domestic law. You said:

“it is for each State to determine in its domestic legislation or in the authorization

process for the project, the specific content o f the environmental impact assessment
required in each case, having regard to the nature and magnitude of the proposed
development and its likely adverse impact on the environment . . .” . 7

9. The Environmental Diagnostic will be in accordance with Costa R ican law, and it will be

provided to the Court, and to Nicaragua, in due time. Costa Rica has nothing to hide . Despite

Professor Pellet’s flourishes, Costa Rica is not keeping the Court and Nicaragua in suspense. It is

following the procedure set by the Court for this c ase. And there is simply no justification for a

provisional measures order requiring Costa Rica to provide this s tudy in advance of the filing of its

Counter-Memorial in exactly six weeks’ time. And nothing will happen to the Road, or to the

river, in the next six weeks which would alter the existing situation.

6Costa Rica, Ministerial Resolution 02752 of 2009, Technical Guide for an Environmental Diagn EDA,
2 Nov. 2009 (extract), tab 2 of Costa Rica’s judges’ folders.
7
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I), pp. 83- 84,
para. 205. - 11 -

10. I might add that Nicaragua does now have a substantial number of technical studies and

research from Costa Rica, and from its independent expert, concerning the impact of the r oad,

which Costa Rica has submitted to defend against the present Request. Those studies will be

supplemented with the full record of evidence in due course.

C. Remediation works

11. The second factual matter I will address is the scope and effectiveness of the remediation

works which have been carried out, and which are currently underway on the road.

12. One introductory point is that these works are designed to address the risk of

environmental impacts of the road. They are not, of course, directed solely to mitigate the effects

on Nicaraguan territory, as Nicaragua implied; in large part, the remediation measures also address

potential impacts on Costa Rican territory . Works are also being carried out as part of the normal

maintenance of the road. The fact that Costa Rica is carrying out such works is not tantamount to

an admission 8 that the road is causing significant transboundary harm to Nicaragua, let alone that it

is causing irreparable prejudice to Nicaragua’s rights.

13. Nicaragua has challenged two aspects of Costa Rica’s remediation works.

14. First, it challenges the geographical extent of these works. You heard yesterday that

remediation works on the road have only been carried out on 15 k m of the length of the road 9.

10
Mr. Reichler complained that this was less than one-tenth of the 160 km road . That figure does

give an impression that Costa Rica is not taking these remediation works seriously . However, it is

simply not correct.

15. [Start slide] You see now on your screens, and at tab 3 of your folders, the entire 160 km

11
of the Border Road. Of that 160 km, only 108 km runs along the San Juan River . That part of the

Road is now highlighted . Dr. Kondolf says 106 km 12, but it is around 108. And of that 108 km,

8Cf CR 2013/30, p. 22, para. 4 (Reichler).

9CR 2013/30, p. 29, para. 9 (Reichler); and p. 25, para. 13 (Reichler);
10
Ibid., p. 25, para. 13 (Reichler).
11
See Allan Astorga G. and Andreas Mende, Route 1856: Analysis of the Change in Land use Based on Satellite
Images Before and After the Construction of the Border Road, Aug.2013, Attachment CR-4, p. 4, tab 3 of Costa Rica’s
judges’ folders.
12G. Mathias Kondolf, Comments on Costa Rican Submissions of November 2013, 6 Nov. 2013, p. 3, third
paragraph. - 12 -

Dr. Kondolf complains only about the first 41 km, from M arker 2 to the Rio San Carlos ( you see

that now highlighted on your screens). In his 2012 Report, Dr. Kondolf said that this was because

13
it has the steepest topography, and that he didn’ t have time to look at the res t of the road . Well,

he has had another year, and we now have three additional reports from him, and he still has not

mentioned the other 67 km of the r oad. [ Start photographs ] And as you can see from the

photographs now on your screen, it is clear why: there is simply nothing that can be said about the

impact of this road over this 67 km 14. The terrain downstream of Boca San Carlos is much flatter,

and here the r oad follows a pre -existing road for a far greater proportion of its length, passing

through areas that have long been inhabited and developed for pasture, crops, forestry and other

uses. So we are not talking about 160 km, or even 108 km ; we are  at most  talking about

41 km. So Mr. Reichler’s 10 per cent is obviously wrong.

16. [Start slide] And the 15 km figure is also wrong; in fact, Costa Rica is carrying out

remediation works on a much greater length of the r oad. On Tuesday we showed you this map

identifying seven points where remediation work will be undertaken. Four of those poin ts, now

highlighted on your screens, extend beyond the first 15 km of the r oad. As we explained, the

works at these points include stabilization of cut and fill slopes, building ditches, installing

permanent culverts and sediment traps, as well as planting of vegetation 15.

17. [Start slide] While we are looking at maps and photographs, I mention a photograph

supplied to Dr. Kondolf by the Nicaraguan Army, which is reproduced as figure 9 to Dr. Kondolf’s

latest report, submitted to the Court on Wednesday evening 16. The photograph is dated from 2011,

when construction of the r oad commenced, so it pre -dates any of Costa Rica’ s substantial

remediation works. But that is not the important point. The Nicaraguan Army gave co-ordinates

for this photograph. Those co-ordinates are marked on the image now before you and at tab 6 of

your folders, together with an inset of the offending photograph. And as you can see, the

photograph is taken some way inland on the r oad, between Marker 2 and Los Chiles, more than

13
G. Mathias Kondolf, Environmental Impacts of Juan Rafael Mora Porras Route 1856, Costa Rica, othe Rio
San Juan, Nicaragua”, Dec. 2012, MN, Ann. 1, p. 9, third paragraph.
14Photographs reproduced at tab 4 of Costa Rica’s judges’ folders.

15CR 2013/29, p. 20, para. 24 (Brenes).
16
G. Mathias Kondolf, Comments on Costa Rican Submissions of November 2013, 6 Nov. 2013, p. 13, fig. 9. - 13 -

2.7 km from the San Juan River . This confirms  if such confirmation were needed  that

photographs are simply not an adequate substitute for evidence based on scientific data and

measurements, as also followed from Mr. Wordsworth’s remarks on Wednesday. [End slide]

18. Coming back to Costa Rica ’s works on remediation, the second criticism level led by

Nicaragua yesterday is that these works protect only against surface erosion, and do not do

anything to protect cut slopes, fill slopes and stream crossings 17. Nicaragua’s counsel based this

criticism on the opinion of Dr. Kondolf, which was based in turn on his review of photographs

taken from the river 18.

19. [Start slide] You see now on your screens, and at tab 7 of your folders, a more detailed

explanation of the remediation measures which Costa Rica has undertaken and which are

continuing. These are taken from the explanation of the works in the CONAVI Report 19. Each of

the measures implemented are described in the first column; the next four columns, head ed “road

surface”, “cut slopes”, “fill slopes” and “stream crossings” indicate whether each measure

addresses the risks presented by each of these features; and the final column contains further

explanation of the way in which the measures address these r isks. Of the 21 measures

implemented, eight address road surface erosion; 12 protect cut slopes; 13 protect fill slopes; and

six reduce the risks associated with stream crossings. So again, here, Nicaragua has

underestimated Costa Rica’s remediation m easures. These measures are addressing the

environmental risks associated with the road, and they are doing so effectively.

20. In a final attempt to cast doubt on Costa Rica’s remediation efforts, Nicaragua seized

upon Professor Thorne’s observation that some of the remediation measures were temporary rather
20
than permanent, and argued that this statement proved the necessity of its requested measures .

But Nicaragua quoted only selectively from Professor Thorne’s Report. Professor Thorne said that

the remediation works he observed:

17
CR 2013/30, p. 24, para. 10 (Reichler).
18G. Mathias Kondolf, Comments on Costa Rican Submissions of November 2013 , 6 Nov. 2013, p. 7; see also
G. Mathias Kondolf, Continued Impacts from Erosion from Rte 1856, Costa Rica, to t he Rio San Juan, Nicaragua ,
30 Oct. 2013, Ann. 2 to Letter from Nicaragua to the ICJ, 1Nov. 2013, Ref. HOL-EMB-223, pp. 9-10.

19Consejo Nacional de Vialidad (CONAVI), Program for the Consolidation and Continued Improvement of
Route No 1856, Ref. DIE-02-13-3107, 25 Oct. 2013, Attachment CR-3.
20
CR 2013/30, p. 25, paras. 12-13 (Reichler). - 14 -

“are part of ongoing efforts intended to reduce erosion risks stemming from the way
the Road was constructed in 2011 and . . . are not intended to provide a permanent

solution to erosion issues . Given that, my experience suggests that with appropriate
inspection and, where necessary, maintenance or repair, the mitigation works will
significantly reduce local erosion rates for the next year or two, allowing time for the
work necessary to design, contract and build permanent works to progress.” 21

The point is of course not whether the works are complete, or whether the measures put in place are

permanent. The point is that temporary measures can still be effective, and Professor Thorne

concludes that these are.

D. Resumption of construction of the road

21. This brings me to my third and final topic, concerning Costa Rica’s plans for completing

construction of the road. Yesterday, Nicaragua showed you again the extract from the March

presentation of the Ministry of Public Work s, with the famous timetable for resumption of

22 23
construction of the road . As Costa Rica explained on Wednesday, this timetable is out of date .

The deadlines it shows for designs, between December last year and August this year, have not

been met. If the designs are not in place, construction cannot resume. Nicaragua asked for

Costa Rica to be more precise about how long the delays might be, suggesting they might be only

two or three months, such that construction might start in January next year 2. That is unrealistic.

[Start slide] You see now on your screens, and at tab 8 of your folders, a new schedule provided by

the Costa Rican Ministry of Public Works. This schedule indicates that the tendering process for

designs will re- open in December this year, with different deadlines for the different sections.

Only the designs for Sec tion 5, which runs from Delta Costa Rica to the mouth of the Sarapiquí,

may be finalized in the next six months. Section 5 is that area of the road downstream from Delta

Costa Rica, which is of course the long stretch of road which traverses over flatter terrain, and

follows pre-existing roads. Nicaragua has no criticism of this part of the road. If the designs are

finalized on this proposed timetable, construction would begin on Section 5  at the very

earliest  around July next year.

21
Professor Colin Thorne, Report on the Risk of Irreversible Harm to the Río San Juan relating to the
Construction of the Border Road in Costa Rica, 4 Nov. 2013, Attachment CR-7, p. 41, para. 90.
22CR 2013/30, p. 29, para. 16 (Reichler).

23CR 2013/29, p. 18, para. 18 (Brenes).
24
CR 2013/30, p. 28, para. 18 (Reichler). - 15 -

22. Construction in the other four sections  which cover the only part of the road that

Dr. Kondolf finds troubling  will not be before late 2014 or early 2015. These works will not

begin in days or weeks, or even months. This is a matter to which Mr. Ugalde will return, but it

bears mentioning here that, if Nicaragua had genuinely been concerned about the schedule it

discovered in January this year, it could have written to Costa Rica, in the ordinary way, and asked

about this schedule. Costa Rica would then have had an opportunity to explain that this old

timetable was out of date. Instead Nicaragua filed a Request for provisional measures, a request

which did not even mention resumption of construction of the road. The first Costa Rica heard

about this, the factor which Nicaragua’s counsel described as “most underscor[ing] the urgency and

immediacy of Nicaragua’s request” was during the hearing on Tuesday morning this week 2.

Nicaragua’s failure to mention this at any time before this week is surprising, to say the least.

23. Mr. President, Members of the Court, I thank you for your kind attention, and I ask that

you give the floor to Mr.Wordsworth.

The PRESIDENT: Thank you v ery much, Dr. Parlett, and I invite Mr. Wordsworth to take

the stand. You have the floor, Sir.

Mr. WORDSWORTH: Thank you.

N O IRREPARABLE PREJUDICE (RESPONSE )

A. Introduction

1. Mr. President, Members of the Court, it has been said that, if you are w eak on the law,

bang on about the facts, and if you are weak on the facts, bang on about the law, and if you are

weak on both, then just bang on the table. My friend Professor McCaffrey sought gamely to avoid

the third of these well -worn tracks, and posit ioned Nicaragua’s case on irreparable prejudice very

firmly in the second track, telling you that Costa Rica has been focusing on the wrong target in

looking at the facts on irreparable prejudice.

25CR 2013/28, p. 38, para. 7 (Reichler). - 16 -

2. Now, one might think that a curious proposition to make at a provisional measures hearing

where, like it or not, facts are all-important in establishing whether there is a real and imminent risk

that prejudice may be caused to the rights in dispute before the Court has given its final decision.

And, naturally enough, we say, Costa Rica has focused on the allegations of fact that were made by

Nicaragua in its Request of 11 October 2013, as these constitute the basis for making the Request

in the first place. As the Court may recall, the allegations are as follows:

(a) First, a t page 1: “Costa Rica’s road works have caused a surge in the San Juan River’s

sediment load requiring Nicaragua to take active efforts, including dredging, to maintain the

quality and quantity of the river’s waters.” 26

(b) And then, at page 3, there is the allegation with respect to “the irreparable damage that is being

inflicted on the river and its surrounding environment, including on navigation and the health

and wellbeing of the population living along its margins” 27.

3. Nicaragua’s case, as put yesterday, is that we are wrong to focus on whether there was in

fact this alleged surge, or whether there was in fact the alleged harm to the river and its

environment, to navigation and so on. Rather, we were told, Costa Rica’s focus should have been

on alleged irreparable prejudice to its territorial sovereignty; as to which, however, there is not one

word in Nicaragua’s Request.

4. I shall come back to this new emphasis on territorial sovereignty in a moment, but first it

may be useful to recall where matters now stand on the underlying facts.

5. As Costa Rica said in opening, this is not a request that appears likely to turn on whether

the Court prefers the evidence of expert X or expert Y, and that now looks to be all the more

unlikely.

6. As the Court is aware, a fourth report by Dr. Kondolf was lodged by Nicaragua on

Wednesday evening and, while it is something of a procedural oddity for a party to be submitting

further expert reports after the expert in question has heard what counsel has to say on his or her

existing report, Dr. Kondolf’s further report is not unhelpful. What is clear from this report, and

likewise from Professor McCaffrey’s remarks yesterday, is that there is now little if anything

26Letter from Nicaragua to the ICJ, 11 Oct.2013, Ref. HOL-EMB-196, p. 1.

27Ibid., p. 3. - 17 -

between the parties on what Costa Rica sees as the key issues of fact going to risk of imminent and

irreparable prejudice. And while Dr. Kondolf raises questions as to certain aspects of Costa Rica’s

expert reports, what he does not say is that they are wrong on any of the key facts.

(a) First, in terms of the high suspended sediment concentration in the San Juan River, and the

absence of any surge in the sediment concentration due to construction of the road, there is no

challenge. Not a word.

(b) Secondly, there is no challenge to the evidence that the road is only contributing — and this is

even on Dr. Kondolf’s figures — only contributing 1 to 2 per cent of the total sediment load in

the San Juan, and 2 to 3 per cent in the Lower San Juan where it was said that the deposition

was taking place. There is no challenge to Professor Thorne’s opinion, at paragraph 64 of his

report of 4 November, that this “is obviously too small a proportion to have a significant impact

on the River” 28 — no challenge to that. Irrelevant, Professor M cCaffrey now appears to

29
suggest , and I will come back to that shortly.

(c) Thirdly, there is no challenge to the evidence that, even on Dr. Kondolf’s figures, if all the

road-related sediment supplied to the Lower Río San Juan were to be deposited on the bed of

the Lower Río San Juan that would result in an average increase in the rate of aggradation of

the bed between 3 and 4 mm.

Professor McCaffrey had a minor grumble here, which is derived from Dr. Kondolf’s further

report, to the effect that it was highly unlikely that the sediment would be spread evenly in the

Lower San Juan 30. Well, it is Nicaragua’s Request, and it is for Nicaragua to make good its

allegation that there has been significant aggradation such as to require it “to take active efforts,

including dredging”, as it alleged in its R equest. And notably, despite the complaint, still no

evidence was put forward as to how and where the sediment would in fact be deposited  even

though this is of course Nicaragua’s sovereign river, and it is N icaragua that is saying —or rather,

was saying — that it had had to carry out dredging.

28
Professor Colin Thorne, Report on the Risk of Irreversible Harm to the Río San Juan relating to the
Construction of the Border Road in Costa Rica, 4 November 2013, Attachment CR -7, para. 64.
2CR 2013/30, p. 18, para. 8 (McCaffrey).
30
Ibid., p. 17, para. 4 (McCaffrey). - 18 -

And even if one were to assume in Nicaragua’s favour that the sediment is deposited over

half the area of the r iverbed, it would still only be 8 mm worth (which must bring us up to the

dizzyingheights of 3 to 4 times the diameter of a grain of sand); or if the sediment were deposited

over a quarter of the area of the riverbed, it would still only be 18 mm (less than the height of a

ripple of sediment on the riverbed) . So this is all a distraction, and the case on significant

aggradation  and you remember that was a case on which considerable emphasis was placed in

opening  has simply fallen away.

(d) To continue: fourthly, there has been no challenge to Professor Thorne’s evidence about the

benefits of sediment deltas to the ecosystem, whether these are formed by natural or human

means 31.

(e) And, fifthly, there is now no suggestion of identified risks of irreparable prejudice to the

environment, and we heard nothing more of the 46 endangered species in the broader region.

(f) And finally, Nicaragua has not picked up the gauntlet in terms of identifying how any of the

mitigation or construction works, set out in the Minister’s communication of March 2013, how

any of these may adversely impact the environment. So what is still at issue?

B. Facts still at issue

7. So what is still at issue on the facts?

8. A point was made by Professor McCaffrey about the University of Costa Rica having

calculated the quantities of sediment coming from the road only by reference to the first 15 km, not

32
the whole 108 km length, and of having avoided seriously eroding sites  that is putting it quite

high, I have to say. There are three brief points on this.

9. First, as explained in Professor Thorne’s report, and this is a quote from paragraph 33:

“The monitoring results reported here [he is referring to the University of Costa
Rica Report] come from the two largest rotational landslides observed along the Road;
the three larg e gullies; the slope which displayed most intense rill (micro -channel)

erosion; and a sediment trap that collects sediment eroded from a steep stretch of road
bed and cut slope which only experiences sheet erosion (Figures 5 and 6). Hence, it is

31Professor Colin Thorne, Report on the Risk of Irreversible Harm to the Río San Juan relating to the
Construction of the Border Road in Costa Rica, 4 Nov. 2013, Attachment CR-7, para. 77.

32CR 2013/30, p. 21, para. 19 (McCaffrey). - 19 -

reasonable to assume that the recorded rates of land surface lowering represent ‘worst
case’ scenarios for Road-related erosion to date.” 33

I should add that Professor Thorne has himself driven, or flown, along the whole length of the road

on various occasions, so these views don’t come from nowhere, as it were.

10. Secondly, of course, Dr. Kondolf himself does not focus on the whole 108 km reach of

the Road that goes along or near the river, but , as Dr. Parlett has just said, he only focuses on a

41-km stretch. That is no doubt because along the lower sector of the r oad the terrain is much

flatter, and there is much lesser scope for erosion. The University of Costa Rica team focused on

where the slopes were at their most prevalent, which is in the first 15 km of that stretch.

11. Thirdly, and I am sure the Court already has this point, this is not in any event an issue

that the Court has to dwell on, because ICE and Professor Thorne sought to avoid needless

contention by taking Dr. Kondolf’s figures on sediment coming from the r oad when it came to

assessing whether increases in sediment in the r iver could be significant. It is not, as

Professor McCaffrey suggested, that Costa Rica does not take serious issue with Dr. Kondolf’s
34
estimates . It does. But, for the purposes of the current Request, this is not a major issue, because

those estimates have been taken into account in calculating whether the increases are significant,

and the outcome is that they are not, as I showed you on Wednesday, and is now unchallenged.

12. There is also still an issue that divides the P arties on the importance of the risk from

hurricanes and tropical storms. Professor McCaffrey gave you some statistics on the havoc

wreaked by Hurricanes Joan and Mitch, and these were indeed awful and catastrophic events.

13. But, there are two points.

14. First, nothing that Professor McCaffrey said can alter the fact that Hurricanes Joan and

Mitch did not traverse the area that the Court is now concerned with. The same applies to

Hurricane Stan, which was also referred to yesterday. You can see their tracks now up on the

screen (and in tab 10 of your folder)  that is the whole multitude of tracks and then we have Joan,

Mitch highlighted and Stan highlighted in 2005  you can just pick them up, and they are all well

to the north.

3Professor Colin Thorne, Report on the Risk of Irreversible Harm to the Río San Juan relating to the
Construction of the Border Road in Costa Rica, 4 Nov. 2013, Attachment CR -7, para. 33.

3CR 2013/30, p. 18, para. 11 (McCaffrey). - 20 -

15. Now, it is not just that these are allto the north of the r oad; it is also that once again

Nicaragua is not giving you the data you would need to determine whether there is the real and

imminent risk that it alleges. And while it was very interesting yesterday to hear some information

from Wikipedia  no less  of how, although Mitch did not enter Nicaragua, it was accompanied

by extensive rainfall there estimated as over 50 inches (that is 1,300 mm), what Ni caragua did not

do is to furnish you with evidence of the actual rainfall at the time in the area of the road. Curious;

it must have such evidence; it must have its own national meteorological centre. Likewise, you

were only given Wikipedia figures  this time it was 20 inches (500 mm)  in relation to

Hurricane Stan, and you weren’t given figures at all for Hurricane Joan.

16. In an attempt to give you more reliable data, or more useful data I should say, we have

included at tab 11 of your f older a letter that we have just received from the National

Meteorological Institute of Costa Rica.

17. If one sees there, it goes through each of these hurricanes and then it details the rain at

the time in Costa Rica. So there we see, halfway down the letter, Hurricane Joan

10-23 October 1988: Hurricane Joan made contact with the coast of Nicaragua, at Bluefields. For

Costa Rica the rain accumulation from 20 to 23 October in the North and North Caribbean region

ranged from 20 to 250 mm, the highest numbers on the Caribbean area  that is not our area 

and the lower numbers towards the area of Sarapiquí, with intermediate values towards the area of

Los Chiles. As I understand it, the road area is between Sarapiquí and Los Chiles.

Then there is Hurricane Mit ch, 22 October to 9 November 1998: this hurricane entered

Central American territory through the central sector of the coast of Honduras. Similarly, due to its

position on the Caribbean, the main effects on Costa Rica were on the Pacific Watershed. The map

included below establishes that rain accumulation from 21 October to 1 November, which clearly

shows that the rains recorded during those days in the Caribbean Watershed and the North Area,

were below 100 mm  and the road is within that area, below 100 mm.

And then, overleaf, we have Hurricane Stan, 1- 5 October 2005: the recorded rain

accumulation from 2 to 5 October for the North and the North Caribbean Area ranged from

150 mm in the Sarapiquí area to 15 mm on the coast. It is worth noting that the north area of the - 21 -

country, due to its nature, is very rainy. The average annual rain accum7ulation can reach

6,000 mm.

18. So, no rainfall in the order of 1,300 or even 500 mm, and notably the area in any event

already receives a high rainfall, which pu ts in context the rainfall figures at the time these

hurricanes were passing to the north.

19. The second point is that, if notwithstanding the general pattern that you have seen, a

hurricane or associated rains were to hit Costa Rica with the force that Professor McCaffrey

alluded to in describing Hurricane Mitch, there would be a national disaster as there was indeed in

Nicaragua in 1998, and any additional sediment impacts from the r oad would be a complete

irrelevance. Indeed, hurricanes of themselves may cause landslides even on undisturbed slopes, as
35
is clear from the US Geological Survey report on Hurricane Mitch .

20. And any additional sediment from the road would be dwarfed, not just by the general

destruction, but by increased sediment from the whole catchment area draining into the San Juan.

Sedimentation from the unfinished road might well increase, but not somehow in isolation, and

Nicaragua has offered you no evidence to suggest how one would not still be looking at the r oad

contributing a very small percentage of the river’s overall sediment load.

21. And, again stepping back, if this focus on hurricanes could establish the real and

imminent risk that Nicaragua is searching for, Nicaragua would no doubt have made its provisional

measures request two years ago when it first lodged its Application. Hurricanes are not a new

phenomenon; even if they are, fortunately for Costa Rica, a phenomenon that is of materially less

concern to it than its northern neighbours.

22. So, when it comes, on this final day, to the facts relevant to risk of irreparable prejudice:

(a) First, Nicaragua does not challenge Costa Rica’s measurements of the sediment loads of the

river, both before and after the construction of the road.

(b) Secondly, there is no debate as to the absence of any surge in the sediment load caused by the

road, or indeed that the additional contribution from the road is very low in the context of this

river, some 1-2 per cent generally, or 2-3 per cent in the lower San Juan.

3See Landslides Triggered by Hurricane Mitch in Guatemala —Inventory and Discussion, available at:
http://pubs.usgs.gov/of/2001/ofr-01-0443/. - 22 -

(c) Likewise, there is no challenge to the evidence that  again on Nicaragua’s own figures  the

aggradation of the bed would be imperceptible, the thickness of a few grains of sand; although

there may, at some stage in the future, be a debate as to whether it is tw o grains of sand, or

some other number that Nicaragua may eventually put into evidence.

(d) Finally, there is no challenge to the evidence that sediment deltas benefit the ecosystem, while

Nicaragua does not suggest that its only concrete evidence as to negative impact on the

ecosystem, in respect of the limited  you may recall this, it is almost like a tiny footnote point

in Professor Kondolf’s third report  but there is evidence there of sampling carried out by a

colleague of what is called periphyton, that is detritus and bacteria and algae in the river, is no

suggestion that that gives rise to any risk of irreparable prejudice. And of course it does not.

23. Puzzlingly, when it comes to urgency, Nicaragua still says that you should take no

account of its two-year delay in making its Request because “the fact that a patient has been losing

blood for some time does not mean that there is no urgency to stop the haemorrhaging, and as soon

36
as possible” . It is as if Nicaragua has forgotten that it has in effect conceded that its patient is not

losing any blood, and, so far as concerns sediment content, is in the same shape as it was one year

ago, or two years ago, or 30 years ago, when the 1974- 1976 measurements on sediment

concentrations were taken  to which reference is made, as you may recall  in the reports of

ICE and Professor Thorne and I took you to the details on Wednesday.

24. In circumstances, then, where Nicaragua is unable to challenge the expert opinion that a

contribution of 1-2 per cent sediment from the road “is obviously too small a proportion to have a

significant impact on the River”, where is the risk of irreparable prejudice to be found?

C. Nicaragua’s new case on irreparable prejudice to sovereignty and territorial integrity

25. According to my friend Professor McCaffrey, we have been addressing the wrong

question and, instead of focusing on facts, should have been focu sing on Nicaragua’s territorial

sovereignty. Where, he asked, was Costa Rica’s explanation of how the sediment delivered into

37
the river does not violate Nicaragua’s sovereignty and territorial integrity?

3CR 2013/30, p. 19, para. 13 (McCaffrey).

3Ibid., p. 16, para. 2 (McCaffrey). - 23 -

26. Now, there are three obvious points to make here.

27. First, no sediment is being delivered into the r iver. Some sediment, from an unfinished

road, is being washed into the river in a context where Costa Rica is engaged in mediation works as

described by Dr. Parlett. That is not “delivery”, and the analogy to dumper trucks emptying into

the river remains quite inapposite.

28. Secondly, the question of whether the erosion of sediment into the river does or does not

violate Nicaragua’s sovereignty and territorial integrity is evidently one for the merits. We

consider Nicaragua’s case on violation of sovereignty and territorial integrity to be entirely

misconceived, but that is for another day. I do recall that a similar point was raised by Hungary in

the Gabčíkovo-Nagymaros case, but in fact that went nowhere at all.

29. Thirdly, the current focus on Nicaragua’s sovereignty and territorial integrity is an

afterthought. As I noted earlier, it does not get a mention in Nicaragua’s Request. And this is not

to make a procedural point. Rather, Nicaragua presumably included in its Request those matters it

thought went to a real and imminent risk of irreparabl e prejudice. And, evidently, and quite

unsurprisingly, supposed threats to sovereignty and territorial integrity were not foremost in

Nicaragua’s mind. The alleged rights, in this respect, do not come close to being at any risk of

irreparable prejudice.

30. Let it be supposed, for argument’s sake, that the sediment did indeed impede navigation

in the Lower San Juan as was once alleged — that is what was alleged on Tuesday at least — and

let us suppose that this prejudiced Nicaragua’s sovereignty and ter ritorial integrity. Evidently, that

would not be irreparable. Costa Rica might ultimately be ordered to pay damages for the costs of

any necessary dredging operation, but that would be that. Where else could a risk of irreparable

prejudice lie? Nicarag ua might characterize damage to the environment as prejudicing its

sovereignty and territorial integrity. But it has given up on that angle so far as concerns this

Request, as follows from its decision not to challenge the evidence that the contribution of

sediment from the road is too small to have a significant impact on the river.

31. And, while I am loath to return to the dumper trucks analogy, if one has to see what is

happening here by reference to any mechanical equivalent, it is the conveyor bel t that comes to

mind. [Start slide] - 24 -

32. Now this is from a 1997 paper of Nicaragua’s expert, Dr. Kondolf and it is at tab 13 of

your judges’ folders — this paper. And there he explains that:

“Rivers transport sediment from eroding uplands to depositional areas near sea
level. If the continuity of sediment transport is interrupted by dams or removal of

sediment from the channel by gravel mining, the flow may become sediment -s38rved
(hungry water) and prone to erode the channel bed and banks . . .”

and he illustrates the process with the sketch that you now see on your screens . A landslide and

erosion in the mountains at the top there, the sediment entering the river and being washed along

until it is deposited at the end of the conveyor belt in the river delta.

33. And the point I want to make here is that the washing of sediment into a river is part of a

natural process that is commonly regarded as beneficial and that sediment is not a pollutant,

although Nicaragua seems to treat is as such, even ref erring to the Nuclear Tests cases in its oral

submissions 40. Rather, it is one of the two essential components to any river: that is , water, and

sediment. One merely has to think of the tensions that result from dam projects on international

watercourses to identify just how important a component sediment is  one thinks of Egypt’s

concerns with respect to upstream dams on the Nile and the loss of sediment flows to the

Nile Delta, or Vietnam’s parallel concerns with respect to upstream dam construction on the

Mekong River. Again they are not just about water, they are about sediment also. [End slide]

34. And there are two further points to bear in mind as to Nicaragua’s new characterization

of sediment reaching the river from the road as a “trespass” or an “assault” on Nicaragua’s

41
territory, and thus it says, its rights to sovereignty and territorial integrity .

35. First, where does the trespass begin and end? [ Start slide ] As a matter of fact,

70 per cent of the sediment in the San Juan comes from t he Costa Rican side. As is clear from the

measurements recorded by the Costa Rican Institute of Electricity, Costa Rican river basins

contribute around 6.2 million tonnes of sediment to the San Juan each year, while Nicaraguan

38
G. M. Kondolf, “Hungry water: Effects of dams and gravel mining on river channels” 21 (4) Environmental
Management 533, tab 13 of Costa Rica’s judges’ folders, abstract.
39Ibid., p. 534.

40CR 2013/29, p. 43, para. 19 (Reichler).
41
CR 2013/28, p. 28, para. 15 (McCaffrey). - 25 -

basins contribute around 2.8 million tonnes . There is a graphic at tab 12 of your judges’ folders,

43
which is taken from the ICE Report , and illustrates the respective contribution of sediment from

each State’s river basins, and you see there Nicaragua’s contributions at the top of the graphic and

Costa Rica’s is at the bottom. The greater contribution, as I have just said, coming from

Costa Rica. And this is all part of the r iver’s natural processes. Now, there can be no case that

Costa Rica is assaulting Nicaragua’s territorial sovereignty by allowing its rivers to contribute the

vast majority of sediment to the San Juan in general terms, so how can an increase that is

insignificant and well within the range of natural variability suddenly constitute an assault, or

prejudice that is somehow irreparable?

36. Secondly, and related to this, it would be meaningless to characterize receipt of the

sediment from the road as some form of “trespass” or “assault” on the basis that suddenly

Nicaragua is receiving a surplus of sediment. Sed iment input to the river is changeable from year

to year due to natural variability in rainfall, run- off, volcanic activity, land sliding and numerous

44
other factors. The range of variability, with a 95 per cent confidence interval, is +/ - 20 per cent .

In the remaining 5 per cent of cases, the variability will be even greater. So the natural variability

is far greater than the additional 1 to 2 per cent that the road leads to on Dr. Kondolf’s figures. So

by reference to the road, you simply cannot say that the river is receiving any more sediment than it

might in any given year, be anticipated to receive.

[End slide.]

37. As a final point, Professor McCaffrey sought to bolster the argument on irreparable

prejudice by citing Professor Crawford’s argument in the 2011 Certain Activities provisional

measures hearing, to the effect that the dumping of sediments derived from Nicaragua’s dredging

of the San Juan onto Isla Portillos was causing irreversible damage to the wetland 4. Reference

42
Costa Rican Institute of Electricity (ICE), SBU Projects and Associated Services, Centre for Basic Engineering
Studies, Department of Hydrology, Report on Hydrology and Sediments for the Costa Rican River Basins draining to the
San Juan River, Aug. 2013, Attachment CR-1, p. 28, table 11; see also p.14, table 4.
43Ibid., Attachment CR-1, fig. 23, p. 32, tab 12 of judges’ folders.

44Professor Colin Thorne, Report on the Risk of Irreversible Harm to the Río San Juan relating to the
Construction of the Border Road in Costa Rica, 4 Nov. 2013, Attachment CR -7, para. 71.
45
CR 2011/1, p. 70, para. 49 (Crawford), cited in CR 2013/30, p. 17, para. 6 (McCaffrey). - 26 -

46
was also made to Mr. Ugalde’s submissions in that case , and Professor McCaffrey said that the

contribution of sediment to the river from the road was “no different” than the dumping of

47
sediment onto land . Of course that is wrong, but anyway the obvious point is that the Court did

not conclude that the dumping of sediment on Isla Portillos created a risk of irreparable prejudice

48
such as would justify an order that Nicaragua suspend its dredging programme . The point may

have been argued, the Court did not accept it.

38. Mr. President, Members of the Court, that concludes my remarks. I thank you for your

kind attention, and ask you to hand the floor to Mr. Ugalde.

The PRESIDENT: Thank you very much, Mr. Wordsworth. I give to floor to Mr. Ugalde,

Sergio Ugalde, you have the floor.

Mr. UGALDE:

N ICARAGUA ’SR EQUEST DOES NOT MEET THE REQUIREMENTS
OF THE C OURT ’SS TATUTE

1. Mr. President, distinguished Members of the Court, this morning I will once more address

the issue of urgency, and I will show that Nicaragua has not bee n able to demonstrate that it fulfils

the requirements for the indication of provisional measures under Article 41 of the Statute of the

Court and Articles 73 to 75 of the Rules.

2. First, I will refer to the supposed “urgency” that Nicaragua claims to exist. Second, I will

set out the reasons why Nicaragua’s submissions cannot be granted by the Court, and therefore why

the request for provisional measures in this case must be rejected.

A. Nicaragua’s Request is not urgent

3. I begin with urgency. Yeste rday, Mr. Reichler attempted to give some content to

Nicaragua’s claim of urgency. He said that urgency deals with matters in the future, not past

46CR 2013/30, p. 18, para. 9 (McCaffrey).

47Ibid., p. 17, para. 7 (McCaffrey).
48
Certain Activities carried out by Nicaragua in the Border Area (Cosv. Nicaragua), Provisional
Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I) , p. 26, para. 82. - 27 -

events . But there must be a fact that will produce in the future another fact giving rise to a risk of

irreparable prejudice. Something must have happened to give rise to the belief that an imminent

event will, in the future, irreparably prejudice a right pendente lite before the Court renders its final

decision. If the river is under no threat of being irre versibly harmed, as Professor McCaffrey

appeared to concede, so far as concerns this hearing 50, then Nicaragua has dispensed with the very

object of its Request!

4. Urgency of the kind required by the case law of this Court entails a real and imminent risk

of irreparable prejudice. What did Nicaragua show you to demonstrate that there was a real risk?

Nothing. Yesterday, Mr. Reichler’s presentation on urgency was understandably “brief” 51.

Nicaragua has not provided any convincing response to the points Costa Rica made on Wednesday.

5. As Rosenne explains, the law relating to provisional measures concerns urgency in two
52
respects: as a matter of procedure and as a matter of substance . As a matter of procedure,

Nicaragua announced that it might seek th e indication of provisional measures 22 months ago. It

has requested them, in different forms, without success. It filed this Request only last month, in

53
response to Costa Rica’s own request for provisional measures . Nicaragua has admitted as much.

This, according to Nicaragua, constitutes urgency.

6. As a matter of substance, Nicaragua certainly has not made out its case on urgency. It

submitted no evidence of urgency with its Request. It did not even explain in its Request why it

was urgent. Yest erday Mr. Reichler said that urgency was established because roadworks were

about to recommence, even though he had already observed on Tuesday that the tendering process

54
for the designs has been delayed . He was wrong to suggest the works will recommence “before

the end of the year” 55. Dr. Parlett has shown you this morning that the works will not recommence

any time in 2013, nor in the first half of 2014. But this is anyway a non -issue. It is not the

49CR 2013/30, p. 27, para. 17 (Reichler).
50
Ibid., p. 17, para. 4 (McCaffrey).
51Ibid., p. 26, para. 16 (Reichler).

52Shabtai Rosenne, Provisional Measures in International Law Adjudication (Oxford: Oxford University Press,
2005), p. 136.

53CR 2013/28, p. 12, para. 4 (Argüello).
54
Ibid., p. 39, para. 10 (Reichler).
55CR 2013/30, p. 27, para. 17 (Reichler). - 28 -

commencement of works that establishes urgen cy. If that had been a real case of urgency,

Nicaragua would have made its request 23 months ago. And even leaving this to one side, how

does the commencement of further works  aimed precisely at building a permanent road that

addresses among other things all t he sedimentation issues that Nicaragua has been focusing on 

establish urgency?

7. Anticipating the weakness of their position on urgency, counsel for Nicaragua presented

an alternative argument: even if the works will not be recommenced immediately 5, the Court

should proceed on the basis of a legal fiction according to which the indication of provisional

measures is urgent now , to avoid Nicaragua having to return to the Court later 57. Urgency 

according to Nicaragua  is a matter of convenience.

8. Urgency is not demonstrated by roadworks that may commence late in 2014, according to

the most optimistic estimates, and not allowing for any delays. Can it really be said that there is an

urgent situation that requires action now, to stop an event that might take place in many months’

time? Could Costa Rica, for example, request provisional measures to prevent the construction of a

Nicaraguan canal  which would certainly cause irreparable prejudice to Costa Rica’s rights on

the San Juan and Colorado rivers  even though Nicaragua says the construction of the canal will

begin only in a year’s time?

9. Professor McCaffrey said that the question of whether Nicaragua’s rights are being

irreparably prejudiced, deals not with the quantity of sediment deposi ted from the road relative to

all the sediment carried by the river, but with the absolute quantity 5. If that is the case, should

Costa Rica ask the Court to stop Nicaragua from completing the multi -million-dollar bridge on the

San Juan we were told of yesterday 59, on the basis that some sediment from it is intruding into the

Colorado River, and Nicaragua has not transmitted a transboundary environmental impact

assessment to Costa Rica? Would that be reasonable? Nicaragua did not transmit transboundary

EIAs for the dredging of the San Juan, for the construction of a military airport in

56
CR 2013/30, p. 27, para. 18 (Reichler).
57Ibid., p. 34, para. 12 (Pellet).

58Ibid., p. 18, para. 8 (McCaffrey).
59
Ibid., p. 14, para. 23 (Argüello). - 29 -

San Juan del Norte, or for the bridge on the San Juan  all projects that it was or is carrying out in

close proximity to Costa Rican territory. On the basis of Nicaragua’s current claims, that amounts

to several overt breaches of its international obligations towards Costa Rica. But of course that

would be a matter for the merits, and Costa Rica’s road is no different.

10. Although Nicaragua has not carried out a transbou ndary EIA in relation to the dredging

activities on the San Juan, the project is ongoing, as Nicaragua accepts. When Costa Rica

requested the Court to stop the dredging activities due to the lack of a transboundary EIA 60, the

Court declined to do so. Thre e years later, we have not yet received a transboundary EIA for this

ongoing project.

11. Nicaragua also has to show how the event it is complaining about creates a real and

imminent risk of irreparably prejudicing its rights, before the Court renders a decision. Nicaragua

has said and has presented nothing  nothing at all  to explain how having a public tendering

process for the designs of the road, and a period for the conclusion of contracts for construction

once the designs have been finalized, can be a sign that its rights are about to be irreparably

prejudiced. In the Pulp Mills case, the Court declined to indicate provisional measures for an

alleged risk of environmental harm merely because the mills were under construction 61. Equally

here, public tenders cannot cause any harm to the San Juan River. We now know that Nicaragua is

not concerned about the destruction of the San Juan, because it will not happen. But Nicaragua

must show you how its sovereign rights would be prejudiced by the construc tion of the road. A

number of questions follow from this.

12. Is it the case that Nicaragua cannot exercise its sovereign rights in any stretch of the

river? It appears that that is not the case. Nicaragua accepts that its army and MARENA
62
functionaries ply the river constantly . They continue to impose unlawful limitations on the

enjoyment of Costa Rica’s right of free navigation. There is no sign that if the road works were

recommenced, then Nicaragua would no longer be in a position to exercise its sovereign rights.

60
See CR 2011/3, pp. 24-27, paras. 9-24 (Crawford).
61Pulp Mills on the River Uruguay (Argentine v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J.
Reports 2006, p. 133, para. 78.
62
Letter to the Registrar of the Court from H.E. Carlos Argüello Gómez, Agent of the Republic of Nicaragua,
31 Oct. 2013, Ref. HOL-EMB-220, Ann. 1, Technical Waterway Patrol on the San Juan River on 27 Oct. 2013, Ministry
of Environment and Natural Resources (MARENA), San Juan River Territorial Delegation. - 30 -

Nicaragua has not said a word on the point. It could not prove that its navigation rights are

impaired because there is no such actual or potential risk.

13. Is it the case, then, that the river is changing its course and thereby prejudicing

Nicaragua’s territorial integrity? That is not happening either, as Costa Rica showed you on

Wednesday.

14. All we hear is that the road works are about to recommence, that a disaster is upon us.

These assertions alone, however strenuously they are pleaded, are not grounds for a request for

provisional measures, certainly not one that satisfies the requirements laid down by Article 41 of

the Statute of the Court. Nicaragua’s putative “evidence”, submitted after its Request was filed 

indeed, only “discovered” after Nicaragua filed its Request  is not sufficient to support these

assertions and leads to the same conclusion.

15. This takes me to Nicaragua’s argument that the question of the recommencing of the

road works has not yet been properly dealt with by the Court. This argument goes nowhere. First,

a request for the indication of provisional measures proprio motu does, after all, engage the Court’s

attention on the question of provisional measures. The issues were presented to the Court back

63
when Nicaragua made the request. The Court observed that they required no action on its part .

What has changed?

16. The request for modification of provisional measures had the same fate. Although the

Court suggested that Nicaragua should have used a different procedural mechanism, the fact

remains that it saw no merit in modifying the provisional measures it indicated on 8 March 2011 on

the basis of the facts Nicaragua presented to it. They were largely the same facts presented with its

proprio motu request, save that they also included the recommencement of works, as I explained on

Wednesday.

17. Nicaragua’s Agent yesterday presented an incomplete quote from your Order of

16 July 2013. I will read in full what the Court concluded about Nicar agua’s Application for the

modification of provisional measures on the facts:

“The Court will now examine the request of Nicaragua. As regards its first

argument, concerning the construction of a road . . . the Court recalls that, in the

6See letter from the ICJ to Costa Rica, 11 March 2013, Ref. 142641. - 31 -

Application inst ituting proceedings which it filed in the Registry on
21 December 2011, Nicaragua indicated that ‘[t]he most immediate threat to the
[San Juan] river and its environment is posed by Costa Rica’s construction of a road

running parallel and in extremely clos e proximity to the southern bank of the river,
and extending for a distance of at least 120 kilometres’. When it filed its Memorial in
the Nicaragua v. Costa Rica case, on 19 December 2012, Nicaragua also asked the
Court to ‘examine proprio motu whether the circumstances of the case require[d] the
indication of provisional measures ’, basing its argument once again on the

constructi64 of the road. However, the Court was of the view that this was not the
case . . .”

18. Since the Court made that observati on on 16 July of this year, well after Costa Rica’s

Ministry of Transportation announcement back in March of this year, what has changed? Nothing.

This time around, Nicaragua’s Agent stated yesterday that after your Order of 16 July, it was

“considering” bringing a proper request for provisional measures. He stated:

“In the meantime, Costa Rica had announced that the road work would be
continued towards the end of this year and that this would in any event happen before
the general elections that were t o take place in February 2014. After this
announcement Nicaragua was considering the appropriate moment in which to file its

formal request for provisional measures.

This was the situation when Costa Rica filed last September a request for new
provisional measures . . ”65

19. In order to try to substantiate its claim of urgency, Nicaragua has had to claw back to an

announcement made in March of this year that Nicaragua brought to the Court’s attention on

Tuesday. And Nicaragua is well aware that the Cou rt, largely on the same facts, had already

considered Nicaragua’s complaints about road construction  and that it had rejected the reasons

given by Nicaragua.

20. Mr. Reichler suggested yesterday that the fact that Costa Rica’s Minister of

Communication had stated that the road is viewed as a matter of priority constitutes grounds
66
enough for the indication of provisional measures on the basis of urgency .

21. Of course Costa Rica views the road as a matter of priority. It wants to complete it, and

it will do so in accordance with the highest environmental and engineering standards. Although

most of the road, as shown by Dr. Parlett today, is already in a good condition, part of the road

64
Certain Activities carried out by Nicaragua in the Border Area (Costa v. Nicaragua); Construction of a
Road in Costa Rica along the San Juan River (Nicaraguav. Costa Rica), Requests for the Modification of the Order of
8 March 2011 Indicating Provisional Measures, Order of 16 July 2013, para. 26; emphasis added.
65CR 2013/30, p. 9, paras. 6-7 (Argüello).
66
Ibid., p. 27, paras. 18-19 (Reichler). - 32 -

needs more work. It does not follow  and Nicaragua did not show during these hearings how it

could follow  that undertaking secondary works to improve a road, constructed with urgency in a

state of emergency created by Nicaragua, gives rise to a real and imminent risk of irreparable

prejudice to Nicaragua’s rights.

22. Mr. President, the fact of the matter is that urgency has not been established in this case.

B. The provisional measures requested by Nicaragua are not justified

23. I will now turn your attention to the measures requested. On Wednesday,

Professor Kohen detailed the reasons why not one of the provisional measures requested by

Nicaragua is justified 67. Nicaragua said nothing yesterday that cast any doubt on those reasons.

The measures are still not justified.

24. Nicaragua’s first request is for the E nvironmental Impact Assessment for the r oad. But

even if it were correct that Costa Rica had breached an obligation to provide an EIA to Nicaragua

(quod non), that would be a question for the merits. And Costa Rica has already indicated that its
68
Counter-Memorial, to be submitted next month, will include an Environmental Diagnostic .

Nicaragua did not explain yesterday how this could result in irreparable prejudice to the rights of

Nicaragua in dispute. There is patently nothing irreparable in Nicaragua h aving to wait until the

appropriate time to receive Costa Rica’s case on the merits, certainly not when it is a matter of six

weeks, regardless of whether this obligation exists, which as I said, is a question to be decided at

the merits stage.

25. Therefore, the first measure requested comes down to no more than an attempt to force

you to decide a question that should be left to be decided on the merits.

26. The second measure requested by Nicaragua  that Costa Rica immediately undertake a

number of em ergency measures based on conclusions by Dr. Kondolf  must also fail. The

mitigation measures Costa Rica has carried out preceded any request by Nicaragua, and go beyond

what Nicaragua requests, as Professor Kohen demonstrated on Wednesday. Costa Rica notes that

6CR 2013/29, pp. 49-52, paras. 19-29 (Kohen).

6Ibid., p. 22, para. 5 (Wordsworth). - 33 -

Nicaragua has still not, after two rounds of oral pleadings, produced any evidence that the road

poses a risk of irreparable prejudice to Nicaragua.

27. Costa Rica has presented you with evidence that any sediment from the r oad that enters

the San Juan River is of negligible or imperceptible impact. This evidence is based not on general

speculation about road building drawn from experience in the United States or elsewhere, but on

actual data taken from the river itself. It is Nicaragua that m ust present evidence proving

irreparable prejudice. It has not done so. Only Costa Rica has presented evidence o n the impact,

or lack of it, of sediment from the road from the appropriate baseline: as a portion of the existing

sediment load of the river.

28. It follows that there is no justification for subordinating Costa Rica’s existing programme

of remediation on its own territory to the will of Nicaragua.

29. The same is true of the third measure that Nicaragua seeks, for Costa Rica not to renew

construction activities on the road while the Court is seised of the case. Since Nicaragua has failed

to establish that the r oad causes it any irreparable prejudice in its current state, a fortiori the

eventual resumption of construction of the road in acc ordance with appropriate designs and

construction practices will also not cause Nicaragua any irreparable prejudice. On the contrary,

even if it were true that the r oad created a significant risk of sedimentation, its completion in

accordance with such designs and practices could only improve the road, and be of benefit to all.

30. More fundamentally, the subject of this Request is also an internal matter for Costa Rica.

We have previously explained why Costa Rica declared a state of emergency and commenced

construction of a road as a priority. It is still a priority. Not only is Nicaragua’s R equest

unjustified by any irreparable prejudice to Nicaragua, it would also intrude on Costa Rica’s right to

make sovereign decisions about a matter of grave impor tance for security, health and wellbeing of

its inhabitants. It would, in fact, gravely prejudice Costa Rica’s right s to make those sovereign

decisions.

31. It is clear from the inclusion of this measure in the Request that its intent is not limited to

ensuring that the road causes no irreparable prejudice to Nicaragua. The R equest is in absolute

terms. Its effect would be to disable Costa Rica from constructing a r oad along its border for a

considerable period of time  regardless of whether there are any consequences at all for - 34 -

Nicaragua, and before Costa Rica can put its case on the merits. The explanation is simple.

Despite its protestations yesterday, Nicaragua does not want the road built and will do whatever it

can to stop it.

32. And so, Mr. President, none of the three measures requested by Nicaragua is justified.

They appear to be variously motivated: to decide a question for the merits prematurely, to delay

and obstruct Costa Rica’s existing attempts to take remediation measures and improv e the r oad,

and to delay or prevent Costa Rica from completing construction of the r oad at all. Not least, they

are a response to the well -grounded request that Costa Rica brought a few weeks ago. What does

not appear to motivate them is any genuine urgency or any demonstrated irreparable prejudice.

33. Just as the Court declined to order measures to similar effect when requested to do so

proprio motu and declined to modify its 2011 provisional measures O rder to similar effect, so the

Court should reject this further unmeritorious request.

34. Mr. President, distinguished Members of the Court, I thank you, Mr. President. In order

to close the second round of Costa Rica’s oral arguments, I ask that you call on

Ambassador Edgar Ugalde, who will deliver Costa Rica’s closing remarks and its submissions.

The PRESIDENT: Thank you, Sir. I give the floor to the Agent of the Government of

Costa Rica, Ambassador UgaldeÁlvarez. You have the floor, Sir.

Mr. UGALDE ÁLVAREZ:

1. Mr. President, distinguished Members of the Court, Nicaragua appeared before you this

week to pursue its Request for provisional measures. By Nicaragua’s own admission, these

hearings have been an expensive, inconvenient and time- consuming way to dispense with its

Request 6.

2. Since Nicaragua once again came to the Court yesterday with the allegation that Costa

Rica “has been spending at least five times more on military weapons than Nicaragua for the past

two decades” 70, I feel obliged to correct any misconception this may create. Ac cording to the

Stockholm International Peace Research Institute, Costa Rica has no military expenditure as it does

6CR 2013/28, p. 12, para. 4; ibid., p. 20, para. 38 (Argüello).

7CR 2013/30, p. 12, para. 18 (Argüello). - 35 -

not have an army. On the other hand, Nicaragua’s military expenditure has increased by

44 per cent since 2010, the year that Nicaragua invad ed Costa Rica in the northern sector of Isla

Portillos, a fact that raises serious concerns.

3. Mr. President, as we conclude these hearings, there is no doubt that the road works carried

out by Costa Rica in its territory pose no real and imminent risk of irreparable prejudice to

Nicaragua rights.

4. Despite 23 months passing since Nicaragua filed its Application i nstituting proceedings,

Nicaragua has not submitted any relevant evidence showing that sediment coming from Costa Rica

territory as a result of road works causes harm to the San Juan River. Nicaragua is sovereign over

the waters of the river, yet it has not carried out studies which demonstrate that there has been an

increase in sediment in the San Juan River, which demonstrate that the r oad is causing harm to

Nicaraguan territory. Costa Rica  the Respondent  has filed evidence on this issue, and that

evidence shows that the contribution of sediment is imperceptible  so low as to have no impact,

let alone to cause significant harm. Costa R ica’s evidence has not been seriously challenged by

Nicaragua this week.

5. Nicaragua has failed to demonstrate that there is any urgency to its Request. It filed its

Request at the eleventh hour, just before the hearings on Costa Rica’s request for new provisional

measures in the Certain Activities c ase were scheduled to commence. It did not file its Request

because of any real or imminent risk, but because it thought this would be “a good opportunity

to . . . take advantage” of the fact that hearings for a different request were about to open 71. This is

not the way a State with a bona fide request for provisional measures either reasons or behaves.

6. It is apparent that the real purpose behind Nicaragua’s Request is to stop Costa Rica from

putting in place basic infrastructure, entirely within Costa Rican territory. Nicaragua has already

obstructed Costa Rica by different ways from exercising its right of free navigation on the San Juan

River, a right that has been the subject of a judgment of this Court. Now Nicaragua is trying to

obstruct Costa Rica from exercising its sovereign right to defend itself and to reliably provide

7CR 2013/30, p. 9, para. 7 (Argüello). - 36 -

essential services for the local population. If ordered, the provisional measures sought by

Nicaragua would cause irreparable harm to Costa Rican rights.

7. Mr. President, Costa Rica will continue to endeavour to co- operate with Nicaragua to

address its concerns about the road works. Nicaragua will receive Costa Rica’s Environment

Diagnostic study annexed to its Counter-Memorial. All future construction works on the r oad will

be carried out in accordance with the highest environmental and engineering standards. Costa Rica

will also continue to carry out remediation works on the r oad, to address any risk of impact in

Costa Rica, as well as to the San Juan River.

8. Mr. President, distinguished Members of the Court, I will proceed to read Costa Rica’s

submissions:

F INAL SUBMISSION

9. In accordance with Article 60 of the Rules of Court and having regard to the Request for

the indication of provisional measures of the Republic of Nicaragua and its oral pleadings, the

Republic of Costa Rica submits that,

 for the reasons explained during these hearings and any other reasons the Court might deem

appropriate, the Republic of Cost a Rica asks the Court to dismiss the Request for provisional

measures filed by the Republic of Nicaragua.

10. Mr. President, distinguished Members of the Court, to conclude our participation in these

oral hearings, I wish to extend, on behalf of the Repu blic of Costa Rica , our appreciation to you,

Mr. President, and each of the distinguished Members of the Court, for your kind attention to our

presentations. May I also offer our thanks to the Court’s Registrar, his staff, and to the interpreters

and translators.

11. Finally, I would also like to thank publicly Costa Rica’s counsel and all the members of

our delegation. Thank you, Mr. President.

The PRESIDENT: Thank you very much, Ambassador Ugalde. The Court takes note of the

submissions you have read on behalf of your Government.

This brings an end to the present series of sittings. It remains for me to thank the

representatives of both Parties for the assistance they have given to the Court by their oral - 37 -

observations in the course of these four hearings. In accordance with practice I ask the Agents to

remain at the Court’s disposal.

The Court will render its Order on the Request for the indication of provisional measures

filed by Nicaragua as soon as possible. The date on which this Order will be delivered at a public

sitting in this hall will be duly communicated to the Agents of the Parties.

Having no other business before it today, the Court now rises.

The Court rose at 11.30 a.m.

__________

Document Long Title

Public sitting held on Friday 8 November 2013, at 10 a.m., at the Peace Palace, President Tomka presiding, in the cases concerning Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica); Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)

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