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
Summary
Not an official document
Summary 2011/1
8 March 2011
Certain Activities carried out by Nicaragua in the Border Area
(Costa Rica v. Nicaragua)
Request for the indication of provisional measures
Summary of the Order of 8 March 2011
Application and request for the indication of provisional measures (paras. 1-48 of the Order)
1. Application instituting proceedings (paras. 1-10)
The Court begins by recalling that by an Application filed in the Registry of the Court on
18November2010, the Republic of Costa Rica (her einafter “Costa Rica”) instituted proceedings
against the Republic of Nicaragua (hereinafter “N icaragua”) on the basis of the four following
allegations: “the incursion into, occupation of and use by Nicaragua’s Army of Costa Rican
territory as well as breaches of Nicaragua’s obligations towards Costa Rica” under several
international law instruments.
Costa Rica maintains that the alleged violations concern “an initial area of around three
square kilometres of Costa Rican territory, located at the northeast Caribbean tip of Costa Rica”, at
the mouth of the San Juan border river, and more specifically in Laguna los Portillos (also known
as “Harbor Head lagoon”), on the sea coast of Isla Portillos.
As a basis for the jurisdiction of the Court,the Applicant refers to ArticleXXXI of the
American Treaty on Pacific Settlement signed at B ogotá on 30 April 1948 (hereinafter the “Pact of
Bogotá”) and to the declarations made under Article 36, paragraph 2, of the Statute of the Court, by
Costa Rica on 20February1973 and by Nicar agua on 24September1929 (as amended on
23 October 2001).
In its Application, Costa Rica contends that
“[b]y sending contingents of its armed forces to Costa Rican territory and establishing
military camps therein, Nicaragua is not only acting in outright breach of the
established boundary regime between the two states, but also of the core founding
principles of the United Nations, namely the principle of territorial integrity and the
prohibition of the threat or use of fo rce against any State in accordance with
article 2 (4) of the Charter; also endorsed between the parties in Articles 1, 19 and 29
of the Charter of the Organization of American States.” - 2 -
Costa Rica charges Nicaragua with having occupi ed, in two separate incidents, the territory
of Costa Rica in connection with the construction of a canal (hereinafter also referred to as the
“caño”) across Costa Rican territory from the San Juan river to Laguna los Portillos (also known as
“Harbor Head lagoon”), and certain related works of dredging on the San Juan river.
Costa Rica states that the
“ongoing and planned dredging and the construction of the canal will seriously affect
the flow of water to the Colorado River of Costa Rica, and will cause further damage
to Costa Rican territory, including the wetlands and national wildlife protected areas
located in the region”.
Costa Rica accordingly requests the Court
“to adjudge and declare that Nicaragua is in breach of its international obligations . . .
as regards the incursion into and occupati on of Costa Rican territory, the serious
damage inflicted to its protected rainfor ests and wetlands, and the damage intended to
the Colorado River, wetlands and protected ecosystems, as well as the dredging and
canalization activities being carried out by Nicaragua on the San Juan River. In
particular the Court is requested to adjudge and declare that, by its conduct, Nicaragua
has breached:
(a) the territory of the Republic of Costa Rica, as agreed and delimited by the 1858
Treaty of Limits, the Cleveland Award and the first and second Alexander
Awards;
(b) the fundamental principles of territorial integrity and the prohibition of use of
force under the Charter of the United Nati ons and the Charter of the Organization
of American States;
(c) the obligation imposed upon Nicaragua by Article IX of the 1858 Treaty of Limits
not to use the San Juan River to carry out hostile acts;
(d) the obligation not to damage Costa Rican territory;
(e) the obligation not to artificially channel the San Juan River away from its natural
watercourse without the consent of Costa Rica;
(f) the obligation not to prohibit the navigation on the San Juan River by Costa Rican
nationals;
(g) the obligation not to dredge the San Juan River if this causes damage to Costa
Rican territory (including the Colorado River), in accordance with the 1888
Cleveland Award;
(h) the obligations under the Ramsar Convention on Wetlands;
(i) the obligation not to aggravate and extend the dispute by adopting measures
against Costa Rica, including the expansi on of the invaded and occupied Costa
Rican territory or by adopting any further measure or carrying out any further
actions that would infringe Costa Rica’s territorial integrity under international
law.”
At the end of the Application, the Court is also requested to determine the reparation which
must be made by Nicaragua, in particular in rela tion to any measures of the kind referred to in the
paragraph above. - 3 -
2. Request for the indication of provisional measures (paras. 11-48)
The Court recalls that on 18November2010, having filed its Application, Costa Rica also
submitted a Request for the indication of provisional measures, pursuant to Article 41 of the Statute
of the Court and Articles 73 to 75 of the Rules of Court.
Costa Rica’s Request for the indication of provisional measures is aimed at two separate
Nicaraguan activities, namely:
1. the construction of an artificial canal (the caño) across Isla Portillos, over the entirety of which
Costa Rica believes it is sovereign;
2. the dredging operations on the San Juan river, over which Nicaragua is sovereign.
First, as regards the alleged construction of the caño, Costa Rica contends in its Request for
the indication of provisional measures that
“Nicaragua is currently destroying an area of primary rainforests and fragile wetlands
on Costa Rican territory (listed as such under the Ramsar Convention’s List of
Wetlands of International Importance) for the purpose of facilitating the construction
of a canal through Costa Rican territory, intended to deviate the waters of the San Juan
River from its natural historical course into Laguna los Portillos (the Harbor Head
Lagoon)”.
Second, with respect to the dredging works on the San Juan river, Costa Rica states that it
has regularly protested to Nicaragua and called on it not to carry out such works “until it can be
established that the dredging operation will not da mage the Colorado River or other Costa Rican
territory”. Costa Rica asserts that Nicaragua has nevertheless continued with its dredging activities
on the San Juan river and that it “even announced on 8November2010 that it would deploy two
additional dredges to the San Juan River”, one of which is reportedly still under construction.
In its Request for the indication of provisional measures, Costa Rica affirms that Nicaragua’s
statements demonstrate “the likelihood of damage to Costa Rica’s Colorado River, and to Costa
Rica’s lagoons, rivers, herbaceous swamps and w oodlands”, the dredging operation posing more
specifically “a threat to wildlife refuges in Laguna Maquenque, Barra del Colorado, Corredor
Fronterizo and the Tortuguero National Park”. Costa Rica also refers to the adoption on
12November2010 of a resolution of the Permanent Council of the Organization of American
States (CP/RES.978 (1777/10)), welcoming and endorsing the recommendations made by the
Secretary-General of that Organization in his report of 9November2010 (CP/doc.4521/10). It
states that the Permanent Council called on the Par ties to comply with those recommendations, in
particular that requesting “the avoidance of the presence of military or security forces in the area
where their existence might rouse tension”. Co sta Rica asserts that Nicaragua’s “immediate
response to the Resolution of the Permanent Council of the OAS was to state [its] intention not to
comply with [it]” and that Nicaragua has “consistently refused all request s to remove its armed
forces from the Costa Rican territory in Isla Portillos”.
Costa Rica further affirms that “its rights to sovereignty and territorial integrity form the
subject of its Request for the indication of provisional measures” (para. 18 of the Order).
At the end of its written Request for the indication of provisional measures, Costa Rica asks
the Court
“as a matter of urgency to order the following provisional measures so as to rectify the
presently ongoing breach of Costa Rica’s terr itorial integrity and to prevent further - 4 -
irreparable harm to Costa Rica’s territory, pending its determination of this case on the
merits:
(1) the immediate and unconditional withdr awal of all Nicaraguan troops from the
unlawfully invaded and occupied Costa Rican territories;
(2) the immediate cessation of the construction of a canal across Costa Rican territory;
(3) the immediate cessation of the felling of trees, removal of vegetation and soil from
Costa Rican territory, including its wetlands and forests;
(4) the immediate cessation of the dumping of sediment in Costa Rican territory;
(5)the suspension of Nicaragua’s ongoi ng dredging programme, aimed at the
occupation, flooding and damage of Costa Rican territory, as well as at the serious
damage to and impairment of the navigation of the Colorado River, giving full
effect to the Cleveland Award and pending th e determination of the merits of this
dispute;
(6) that Nicaragua shall refrain from any other action which might prejudice the rights
of Costa Rica, or which may aggravate or extend the dispute before the Court”.
*
At the public hearings held on 11, 12 and 13 January 2011 on the Request for the indication
of provisional measures, oral observations we re presented by the Agents and Counsel of the
Governments of Costa Rica and Nicaragua.
During the hearings, Costa Rica reiterated the arguments developed in its Application and its
Request for the indication of provisional measures, and argued that the conditions necessary for the
Court to indicate the requested measures had been fulfilled.
The Applicant reaffirmed that,
“without its consent, Nicaragua has construc ted an artificial canal across an area of
Costa Rican territory unlawfully occupied by Nicaraguan armed forces; [that], to this
end, Nicaragua is said to have illegally de forested areas of internationally protected
primary forests; and [that], according to Costa Rica, Nicaragua’s actions have caused
serious damage to a fragile ecosystem and are aimed at establishing a fait accompli,
modifying unilaterally the boundary between the two Parties, by attempting to deviate
the course of the San Juan river, in spite of the Respondent’s ‘constant, unambiguous
[and] incontestable’ recognition of the App licant’s sovereignty over Isla Portillos,
which the said canal would henceforth intersect” (para. 31 of the Order).
During its oral argument, Costa Rica declared that
“it is not opposed to Nicaragua carrying out works to clean the San Juan river,
provided that these works do not affect Cost a Rica’s territory, including the Colorado
river, or its navigation rights on the San Juan river, or its rights in the Bay of San Juan
del Norte” (para. 32 of the Order). - 5 -
The Applicant also
“asserted that the dredging works carried out by Nicaragua on the San Juan river did
not comply with these conditions, firstly because Nicaragua has deposited large
amounts of sediment from the river in the Costa Rican territory it is occupying and has
proceeded to deforest certain areas; secondly, because these works, and those relating
to the cutting of the disputed canal, have as a consequence the significant deviation of
the waters of the Colorado river, which is situated entirely in Co sta Rican territory;
and, thirdly, because these dredging works will spoil portions of Costa Rica’s northern
coast on the Caribbean Sea” (para. 32 of the Order).
At the end of its second round of oral argument, Costa Rica presented the following
submissions:
“Costa Rica requests the Court to order the following provisional measures:
A. Pending the determination of this case on the merits, Nicaragua shall not, in the
area comprising the entirety of Isla Portillos, that is to say, across the right bank of
the San Juan river and between the banks of the Laguna Los Portillos (also known
as Harbor Head Lagoon) and the Taura river (‘the relevant area’):
(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) dumpsediment.
B. Pending the determination of this case on the merits, Nicaragua shall suspend its
ongoing dredging programme in the River San Juan adjacent to the relevant area.
C. Pending the determination of this case on the merits, Nicaragua shall refrain from
any other action which might prejudice the rights of Costa Rica, or which may
aggravate or extend the dispute before the Court.”
*
For its part, during its first round of oral observations, Nicaragua stated that the activities it is
accused of by Costa Rica took place on Nicaraguan terr itory and that they did not cause, nor did
they risk causing, irreparable harm to the other Party.
Referring to the first Alexander Award, da ted 30September1897, Nicaragua maintained
that, in the region in question, its boundary with Costa Rica follows the eastern edge of the Harbor
Head lagoon before joining the San Juan river by th e first natural channel in a south-westerly and
then a southerly direction. According to Nicaragua, that first channel is the caño. Nicaragua added
that its title to sovereignty over the northern part of Isla Portillos delimited by the said caño is
confirmed by the exercise of various sovereign prerogatives.
The Respondent indicated that in its view the caño was a “natural channel [which] had
become obstructed over the years, [and that] it had undertaken to make it once more navigable for
small vessels”, adding that “the works condemned by Costa Rica were not therefore aimed at the
cutting of an artificial canal [and that] the cleaning and clearing of the channel had been carried out - 6 -
manually in Nicaraguan territory, the right ba nk of the said channel constituting the boundary
between the two Parties” (para. 38 of the Order).
Nicaragua further asserted that “the number of trees felled was limited and that it has
undertaken to replant the affected areas, all located on the left bank of the said channel” — that is,
according to Nicaragua, in Nicaraguan territory — “with ten trees for every one felled”, and
affirmed that “the works to clean the channel are over and finished” (para. 39 of the Order).
Moreover, “Nicaragua disputed that elements of its armed forces had occupied an area of
Costa Rican territory” (para. 42 of the Order). And although it did state that it had assigned some
of its troops to the protection of staff engaged in the cleaning of the channel and the dredging of the
river, it nevertheless maintained that “these troops had remained in Nicaraguan territory and that
they were no longer present in the border region where those activities took place”.
In its second round of oral observations, Nicaragua once more
“contended that, contrary to Costa Rica’s affirmations, the caño existed before it was
the subject of the clean-up operation; that this fact was evidenced by various maps,
satellite photographs, the environmental imp act assessment conducted by Nicaragua
and affidavits, all of which pre-date the disputed works; and that the boundary
between the Parties in the contest ed area does indeed follow this caño, in view of the
specific hydrological characteristics of the region” (para. 46 of the Order).
Furthermore, the Respondent “reaffirmed that it has the right to dredge the San Juan river
without having to obtain Costa Rica’s permission to do so”, before confirming that
“this limited operation, like that relating to the cleaning and clearing of the caño, had
not caused any damage to Costa Rica and did not risk causing any, since, according to
Nicaragua, there is no evidence to substantiate the Applicant’s claims” (para. 47 of the
Order).
Nicaragua concluded that there was nothing to justify the indication by the Court of the
provisional measures sought by Costa Rica and asked the Court “to dismiss the Request for
provisional measures filed by the Republic of Costa Rica”.
Reasoning of the Court
1. Prima facie jurisdiction (paras. 49-52)
The Court begins by observing that when dealing with a request for the indication of
provisional measures, there is no need for the Cour t, before deciding whether or not to indicate
such measures, to satisfy itself in a definitive manner that it has jurisdiction as regards the merits of
the case; it only has to satisfy itself that the pr ovisions relied on by the Applicant appear, prima
facie, to afford a basis on which its jurisdiction could be founded.
The Court notes that Costa Rica is seeking to found the jurisdiction of the Court on
ArticleXXXI of the Pact of Bogotá and on the declarations made by the two States pursuant to
Article36, paragraph2, of the Statute. Costa Rica also refers to a communication sent by the
Nicaraguan Minister for Foreign Affairs to his Costa Rican counterpart dated 30November2010,
in which the Court is presented as “the judicial organ of the United Nations competent to discern
over” the questions raised by the present dispute.
The Court points out that, in the present proceedings, Nicaragua did not contest its
jurisdiction to entertain the dispute. - 7 -
The Court concludes from the foregoing 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 c onsiders that the circumstances so require.
Accordingly, it finds that it is not obliged, at this stage of the proceedings, to determine with
greater precision which instrument or instrument s invoked by Costa Rica afford a basis for its
jurisdiction to entertain the various claims submitted to it.
2. 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)
The Court notes that whereas 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, contends 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 (hereinafter the
“disputed territory”), and argues that its dredgi ng of the SanJuan 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 ca lled upon to rule on the plausibility of the title to
sovereignty over the disputed territory advanced by Nicaragua. The Court points out further that
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.
As regards the right to protect the environment, the Court also finds that, at this stage of the
proceedings, the right claimed by Costa Rica to re quest 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 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 - 8 -
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.
3. Risk of irreparable prejudice and urgency (paras. 63-72)
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 the following rights, which it considers itself
to possess, are under threat of irreparable prejudice as a result of Nicaragua’s activities: the right to
sovereignty and territorial integrity, the right not to have its territory occupied, the right not to have
its trees chopped down by a foreign force, the right not to have its territory used for depositing
dredging sediment or as the site for the unauthor ized digging of a canal, and the several rights
corresponding to Nicaragua’s obligation not to dredge the San Juan if this affects or damages Costa
Rica’s land, environment or the integrity and flow of the Colorado river.
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.
It further observes that Costa Rica bases the urgency of its Request for the indication of
provisional measures on the need to prevent the pursuit of action prejudicial to the rights of Costa
Rica significantly altering the factual situation on the ground before the Court has the opportunity
to render its final decision on the merits of the case, and 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. - 9 -
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 lagoon”, 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”.
4. Consideration of the provisional measures re quested by Costa Rica, and decision of the
Court (paras. 73-85)
The Court states that it is in the light of th is information that the first provisional measure
requested by Costa Rica in its submissions prese nted at the end of its second round of oral
observations should be considered, namely, that
“[p]ending the determination of this case on the merits, Nicaragua shall not, in the area
comprising the entirety of Isla Portillos, that is to say, across the right bank of the San
Juan river and between the banks of th e Laguna Los Portillos (also known as Harbor
Head Lagoon) and the Taura river (‘the relevant area’): (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 ) requested by Costa Rica in its submissions
presented at the end of the second round of oral observations (see paragraph above).
Given that Nicaragua intends to carry out certain activities, if only occasionally, in the
disputed territory, the Court finds that provisional measures should be indicated, since this situation
creates an imminent risk of irreparable prejudice to Costa Rica’s claimed title to sovereignty over
the said territory and to the rights deriving therefro m, 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, “Costa Rica must be able to
dispatch civilian personnel charged with the prot ection of the environment to the said territory, - 10 -
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 shall consult with the Secretariat of the Ramsar Convention in regard to
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. The Court
concludes from the foregoing that in the circumstances of the case as they now stand the second
provisional measure requested by Costa Rica should not be indicated.
*
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.
Operative clause (para. 86)
The last paragraph of the Order reads in full as follows:
“For these reasons,
T HE 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; - 11 -
(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 consult ith 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-PresidentTomka; Judges Koroma, Al-Khasawneh,
Simma, Abraham, Keith, Bennouna, Cançado Tr indade, Yusuf, Greenwood, Donoghue;
Judge ad hoc Dugard;
AGAINST : Judges Sepúlveda-Amor, Skotnikov, Xue; Judge ad hoc Guillaume;
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.”
JudgeKs oroma and Sepúlveda-Amor appe nd separate opinions to the Order.
Judges Skotnikov, Greenwood and Xue append declarations to the Order. Judge ad hoc Guillaume
appends a declaration to the Order. Judge ad hoc Dugard appends a separate opinion to the Order.
Synopses of those separate opinions and declarations are appended to the present Summary.
___________ Annex to Summary 2011/1
Separate opinion of Judge Koroma
In his separate opinion, Judge Koroma states that, although he has voted in favour of the
Order, he has misgivings about the Court’s decision to use “plausibility” as a criterion for
indicating provisional measures. Judge Koroma notes that the Court’s ability to indicate
provisional measures under Article 41 of its Statute is vital to ensuring that parties’ legal rights are
preserved pending the Court’s decision on the merits. He agrees with both the outcome and the
bulk of the reasoning in the Order, but decided to write a separate opinion on the issue of
“plausibility”, which is raised in the Order.
Judge Koroma recalls that this “plaus ibility standard” was first enunciated in Questions
relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal). He maintains that the
plausibility criterion seems to have appeared out of nowhere in that case, without any supporting
citations or explanation. He also emphasize s that the plausibility standard would appear
inconsistent with the settled jurisprudence of the Court, which requires the applicant to demonstrate
that an existing right needs to be protected.
Judge Koroma expresses two concerns with the plausibility standard: its ambiguity and the
fact that it is unclear whether the standard applies to legal rights, factual claims, or both. With
regard to the first concern, Judge Koroma notes that the word “plausible” in English can have
multiple meanings. “Plausible” often carries a nega tive connotation: an implication that, although
a plausible claim basically sounds truthful, it is in reality deceitful, specious, only partially true, or
completely false. Judge Koroma points out that this makes “plausibl e” unreliable as a legal
standard that the parties must meet to obtain provisional measures from the Court. The Court’s
use of the plausibility standard also, in his view, gives the impression that the threshold for the
indication of provisional measures has been lowered. He notes, however, that the word “plausible”
in French appears not to have a negative connot ation and may therefore have better reflected the
Court’s intention when the term was initially used in the Belgium v. Senegal case.
With regard to the second concern, Judge Koro ma maintains that the Court has not clarified
whether the plausibility standard requires an applican t to show that its legal claims are plausible or
that its factual claims are plausible. He points out that the Court has applied the standard to both
legal and factual claims. In Belgium v. Senegal, the Court, after articulating the plausibility
standard, stated that “the rights asserted by Belgiu m, being grounded in a possible interpretation of
the Convention against Torture, therefore appear to be plausible”. Judge Koroma writes that this
implies that the Court engaged solely in a legal analysis. He observes that in the present Order,
however, the Court evaluates the plausibility of Costa Rica’s factual claims. Hefindsthatthe
actual legal rights at issue, including Costa Rica’s rights to sovereignty and territorial integrity, are
self-evident. What the Order examines instead is whether “the title to sovereignty claimed by
Costa Rica over the entirety of Isla Portillos is plausible” (Order, paragraph 58).
Judge Koroma believes that it woul d have been worth articulating a clear standard of some
sort to evaluate, prima facie, the legitimacy of an applicant’s claims at the provisional measures
stage. He notes that such a standard would be similar to the Court’s existing prima facie
jurisdiction requirement, and would help ensure that parties do not abuse the provisional measures
process by bringing claims that are patently withou t merit. He further observes that the Court has
on occasion informally evaluated the legitimacy of a party’s claim when deciding to indicate
provisional measures, often within its analysis of jurisdictional questions or irreparable prejudice.
The more difficult question, according to Judge Ko roma, is what the precise standard should be.
He states that one option would be to require a part y to establish, prima facie, that it enjoys certain
rights. Another possibility would be to require that the rights asserted by a party be grounded in a
reasonable interpretation of the law or of the facts. - 2 -
Judge Koroma concludes that, if the Court does decide to adopt a new standard, it should do
so in a transparent manner that explains the rati onale behind it. He emphasizes that adopting an
order indicating provisional measures by reference to plausibility may prove a mistake.
Separate opinion of Judge Sepúlveda-Amor
In his separate opinion, Judge Sepúlveda-Amor agrees that interim measures of protection
should be afforded by the Court in the present case . He recalls that the Court has the power to
indicate any provisional measure it may deem necessary in order to preserve the respective rights
of either party, and that the measures indicated may be different, in whole or in part, from those
originally requested. Judge Sepúlveda-Amor consid ers useful to reaffirm that an Order on the
indication of provisional measures has a binding effect and that the Parties to the case must comply
with any international obligation arising under the Order.
According to Judge Sepúlveda-Amor, the Court addresses an important concern: the risk of
criminal activity in the disputed territory. The Court has decided, and rightly so, to give each Party
the responsibility for policing the area over which it unquestionably has sovereignty. It is to be
hoped that the effectiveness of th e bilateral collaboration required will be sufficient to keep the
operation of organized crime away from this transitory no-man’s land.
On a different note, Judge Sepúlveda-Amor believes the Court should have seized the
opportunity to elucidate further the “plausibility requirement” for the purposes of Article 41 of the
Statute. The indeterminacy surrounding the con cept of plausibility in the Order could prove
problematic in future requests for the indication of provisional measures, as will be shown in his
opinion.
Although concurring with the need to grant measures of interim protection in the present
case, Judge Sepúlveda-Amor does not subscribe to the second paragraph of the operative clause of
the Order, nor does he share some of the reasons ad duced in it as a basis for the Court’s decision.
He considers insufficient and unsatisfactory the tr eatment given by the Court in the Order to the
imminent risk of irreparable prejudice to the possible rights of Costa Rica. His view is that the
provisional measures indicated fall far short of what is needed to properly preserve and protect the
Humedal Caribe Noreste. It must be recalled th at the Humedal is intimately linked to the Refugio
de Vida Silvestre Corredor Fronterizo and the Refugio de Vida Silvestre Río San Juan Ramsar site.
The fact that these wetlands are interconnected means that their environmental protection requires a
wider bilateral collaboration and the full assistance of the Ramsar Secretariat.
Declaration of Judge Skotnikov
Judge Skotnikov fully supports the Court’s deci sion directing both Parties to “refrain from
sending to, or maintaining in the disputed territory, including the caño, any personnel, whether
civilian, police or security”. However, he is unable to concur in the second provisional measure
indicated by the Court.
He points out that two conditions, well established by the jurisprudence of the Court, namely
the existence of a risk of irreparable harm to the rights in dispute and urgency, have not been met in
this instance. He is also of the view that th e majority voting in favour of the second provisional
measure has treated the Court’s duty not to prejudge the outcome of the merits of the case rather
lightly. Moreover, this provisional measure, acco rding to Judge Skotnikov, may contribute to
aggravating or extending the dispute.
The following reason is given for indicating the second provisional measure, which allows
Costa Rica to dispatch civilian personnel charged w ith protecting the environment to the disputed - 3 -
territory: “the disputed territory is . . . situated in the ‘Humedal Caribe Noreste’ wetland, in respect
of which Costa Rica bears obligations under the Ramsar Convention” and, therefore, “pending
delivery of the Judgment on the merits, Costa Rica must be in a position to avoid irreparable
prejudice being caused to the part of that wetland where that territory is situated”.
Judge Skotnikov agrees that Costa Rica bears obligations under the Ramsar Convention in
respect of “Humedal Caribe Noreste”. However, in his view, the question as to whether those
obligations extend to the disputed territory can only be answered at the merits stage.
The Court has decided that Nicaragua must cease the replanting of the trees in the disputed
territory and must not send inspectors to periodi cally monitor the reforestation process and any
changes which might occur in th e region, because “this situation creates an imminent risk of
irreparable prejudice to Costa Rica’s claimed title to sovereignty over the said territory and to the
rights deriving therefrom”. However, the presen ce in the disputed territory of Costa Rica’s
personnel charged with protecting the environment can only be equally prejudicial to Nicaragua’s
claimed title to sovereignty over that territory.
Actions which may be taken by Costa Rica under the second provisional measure potentially
go well beyond the reforestation and monitoring co ntemplated by Nicaragua. Unfortunately, this
does create a risk of aggravating and extending the dispute before the Court and making it more
difficult to resolve.
In the view of the Court, Nicaragua’s activities in the disputed territory give rise “to a real
and present risk of incidents liable to cause irremediable harm in the form of bodily injury or
death”. However, Costa Rica’s activities, which the Court is allowing in the disputed territory by
indicating the second provisional measure, may pose the same danger.
Judge Skotnikov notes that it has not been shown that any presence of either Party’s
personnel in the tiny disputed territory is necessary in order to avoid irreparable prejudice being
caused to the part of the wetland where this territory is situated. It is clear from the case file that no
personnel were present in the disputed territory before Nicaragua embarked on its caño operation in
October 2010.
Costa Rica itself did not request the Court to indicate a provisional measure allowing it to
send personnel to the disputed territory. The second provisional measure is indicated purely on the
Court’s initiative.
In Judge Skotnikov’s view, the Court should ha ve dealt with the issue of protection of the
environment in exactly the same way as it dealt with the issue concerning the prevention of
criminal activity in the disputed territory: it shou ld have called on the Par ties to co-operate in a
spirit of good neighbourliness in the area protected under the Ramsar Convention irrespective of
their competing claims to sovereignty over the disputed territory.
Declaration of Judge Greenwood
Judge Greenwood considers the criteria to be applied when the Court is asked to indicate
provisional measures of protection and concludes that the Court must be satisfied that the rights
claimed by a party are plausible, i.e., that there is a reasonable prospect that the Court will find on
the merits that those rights exist and are applicable in the instant case. The Court must also be
satisfied that there is a real risk of irreparable prejudice being caused to those rights before any
judgment on the merits. He finds that the first re quirement is satisfied in respect of Costa Rica’s
claims, but the second is satisfied only in respect of possible prejudice to rights which might be
adjudged to belong to Costa Rica in respect of the Isla Portillos. He would have preferred that the
second operative paragraph of the Order be more e xplicit in calling upon the Parties to adopt a - 4 -
concerted approach to prevent environmental dama ge to the Isla Portillos and Harbor Head lagoon
in accordance with the Ramsar Convention.
Declaration of Judge Xue
Judge Xue declared that she voted against the second operative paragraph of the Order
because she considers that the pr esent case essentially relates to terr itorial dispute over the area in
question. Unless otherwise provided, the territorial application of an international treaty is bound
with the territorial sovereignty of the State parties. To allow one Party to dispatch to the disputed
area personnel, even civilian and for environmental purpose, would very likely lead to undesired
interpretation of the Order prejudging on the merits of the case and, more seriously, it may incline
to aggravate the situation on the ground. In accordance with Article 41 of the Statute of the Court
and its case law, the interim procedure for prov isional measures must not prejudge any question
relating to the merits of the case before the Court, and must leave intact the rights of the Parties in
that respect.
In her view, the Court could have, pending th e final decision on the merits, indicated the
measure to both Parties with the assistance of th e Secretariat of the Ramsar Convention, if any
actions have to be taken to prevent possible irre parable harm to the environment. Her vote is
intended to remind the Parties that the second opera tive paragraph should in no way be construed
as affecting the substance of the case.
Declaration of Judge ad hoc Guillaume
1. In his declaration, Judge ad hoc Gilbert Guillaume recalls firstly that, according to the
Judgment delivered by the Court on 13 July 2009, Nicaragua may execute at its own expense such
works to improve navigation on the San Juan river as it deems suitable, provided such works do not
seriously impair navigation on the river or on tri butaries of the San Juan belonging to CostaRica.
He adds that if, in the course of such works, damage is caused to the territory of Costa Rica, the
latter is not entitled to prevent the continuation of the works on Nicaragua’s territory, but to obtain
reparation for the damage suffered. He goes on to observe that, without ruling on the merits, the
Court has found that the dredging envisaged by Ni caragua was not “creating a risk of irreparable
prejudice to Costa Rica’s environment or to the flow of the Colorado river”. Supporting this
finding, he endorses the Court’s decision to reject the request for provisional measures submitted
on this point by Costa Rica.
2. Turning to the dispute regarding the activiti es carried out by Nicaragua on the territory of
some three square kilometres claimed by both States, Judge ad hoc Guillaume likewise endorses
the decision of the Court to instruct each Party to refrain from sending to, or maintaining in that
territory any personnel, whether civilian, police or security. In his view, this solution clearly
preserves the rights to sovereignty put forward by both Nicaragua and Costa Rica, whilst at the
same time helping to safeguard peace in the region.
3. There remains the environmental impact of the works carried out in this area by
Nicaragua. In this respect, Judge ad hoc Guillaume takes note, as does the Court, of Nicaragua’s
assertion that the works are finished, and therefore concludes, like the Court, that there is no need
to request Nicaragua not to continue with those works. He shares the Court’s opinion that the
existence of the disputed caño does not create an imminent risk of irreparable prejudice to the
environment. - 5 -
4. On the other hand, Judge ad hocGuillaume differs from the Court with regard to
subparagraph (2) of the operative part of the Orde r. In this subparagraph, the Court contemplates
the somewhat unlikely situation in which a risk of irreparable prejudice to the wetlands protected
by the Ramsar Convention might appear in future because of the disputed works. It has given
Costa Rica, and Costa Rica alone, the right in such circumstances to dispatch civilian personnel
charged with the protection of the environment to the disputed territory, in order to establish
whether any measures need to be taken.
Before acting in this way, Costa Rica must indeed consult with the Secretariat of the Ramsar
Convention and endeavour to r each agreement with Nicaragua; should the negotiations fail,
however, the final decision rests with Costa Rica. Judge ad hoc Guillaume regrets this fact, since
he believes that protection of the environment in the disputed territory cannot be separated from
protection of the environment in the adjacent territories falling under the undisputed sovereignty of
one State or the other. It would therefore have been preferable to entrust that protection to both
States acting jointly. Such a solution would also have made it possible to avoid giving the
impression that the Court intended to favour Costa Rica’s rights to the disputed territory, which is
obviously not the case, since the Order specifically states that it in no way prejudges the merits of
the case, nor in particular sovereignty over the territory at issue.
Separate opinion of Judge ad hoc Dugard
Judge ad hoc Dugard voted in favour of the dispositif in its entirety. Nevertheless he
expressed misgivings about the first paragraph of the dispositif which requires the civilian, police
or security personnel of both Parties to keep out of the disputed territory.
In his Opinion Judge ad hoc Dugard examines the need for the Applicant to demonstrate a
“plausible right” as a requirement for provisional measures and shows that this right can only be
proved by some consideration of the merits of the case. The 1858 Treaty of Limits, the First
Alexander Award of 1897, and a number of maps provide evidence of such a plausible right to
sovereignty and territorial integrity on the part of Costa Rica.
Respect for the territorial integrity of a State by other States, a norm of jus cogens, and the
principle of respect for the stability of boundaries, requires an order for provisional measures which
vindicates the right of the invaded State, Costa Rica, to its territorial sovereignty. The nature of the
territory does not justify a different conclusion as a State has full sovereignty over both inhabited
and uninhabited portions of its territory. The approp riate order in such a case is one that restores
the status quo ante.
Judge ad hoc Dugard warns that an even-handed order of the kind contained in the first
paragraph of the dispositif requiring both Parties to refrain fro m sending to, or maintaining in the
disputed territory, any personnel, whether civilian, police or military, will give unwarranted
credibility and legitimacy to the Respondent’s claim to the territory and create a dangerous
precedent.
Judge ad hoc Dugard’s misgivings about the first paragraph of the dispositif are to some
extent remedied by the second paragraph of the dispositif which, in allowing Costa Rica to take
measures to protect the environment of the disputed territory, recognizes the stronger claim of
Costa Rica to the territory. This allowed him to vote for the dispositif as a whole.
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Summary of the Order of 8 March 2011