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
No. 2013/3
22 November 2013
Certain Activities carried out by Nicaragua in the Border Area
(Costa Rica v. Nicaragua)
Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v. Costa Rica)
Request for the indication of new provisional measures
Summary of the Order of 22 November 2013
Application and request for the indication of provisional measures (paras. 1-20 of the Order)
The Court begins by recalling that, on 18 November 2010, the Government of Costa Rica
filed in the Registry of the Court an Application instituting proceedings against the Government of
Nicaragua for “the incursion into, occupation of and use by Nicaragua’s army of Costa Rican
territory”, as well as for “serious damage inflicted to its protected rainforests and wetlands”,
“damage intended [by Nicaragua] to the Colorado River” and “the dredging and canalization
activities being carried out by Nicaragua on the San Juan River”. According to Costa Rica, these
activities were connected to the construction of a canal (referred to in Spanish as caño) across
Costa Rican territory from the San Juan River to Laguna los Portillos.
Having filed its Application, Costa Rica, on the same day, also submitted a Request for the
indication of provisional measures, under Article 41 of the Statute of the Court and Articles 73
to 75 of the Rules of Court. By an Order of 8 March 2011, the Court indicated the following
provisional measures to both Parties:
“(1) Each Party shall refrain from sending to, or maintaining in the disputed territory,
including the caño, any personnel, whether civilian, police or security;
(2) Notwithstanding point (1) above, Costa Rica may dispatch civilian personnel
charged with the protection of the environment to the disputed territory, including
the caño, but only in so far as it is necessary to avoid irreparable prejudice being
caused to the part of the wetland where that territory is situated; Costa Rica shall
consult with the Secretariat of the Ramsar Convention in regard to these actions,
give Nicaragua prior notice of them and use its best endeavours to find common
solutions with Nicaragua in this respect; - 2 -
(3) Each Party shall refrain from any action which might aggravate or extend the
dispute before the Court or make it more difficult to resolve;
(4) Each Party shall inform the Court as to its compliance with the above provisional
measures.”
The Court notes that by two separate Orders dated 17 April 2013, the Court joined the
proceedings in the present case with those in the case concerning the Construction of a Road in
Costa Rica along the San Juan River (Nicaragua v. Costa Rica), hereinafter the “Nicaragua v.
Costa Rica case”, which had been brought by Nicaragua against Costa Rica on 22 December 2011.
The Court recalls that, at the time of the filing of its Memorial in the Nicaragua v. Costa Rica
case, Nicaragua requested the Court, inter alia, to “decide proprio motu whether the circumstances
of the case require[d] the indication of provisional measures”. By letters dated 11 March 2013, the
Registrar informed the Parties that the Court was of the view that the circumstances of the case, as
they presented themselves to it at that time, were not such as to require the exercise of its powers
under Article 75 of the Rules of Court to indicate provisional measures proprio motu.
The Court further recalls that, on 23 May 2013, Costa Rica, with reference to Article 41 of
the Statute of the Court and Article 76 of the Rules of Court, filed with the Registry a request for
the modification of the Order indicating provisional measures of 8 March 2011. In its written
observations thereon, Nicaragua asked the Court to reject Costa Rica’s request, while in its turn
requesting the Court to modify or adapt the Order of 8 March 2011 on the basis of Article 76 of the
Rules of Court. By an Order of 16 July 2013, the Court found that the circumstances, as they then
presented themselves to the Court, were not such as to require the exercise of its power to modify
the measures indicated in the Order of 8 March 2011. By the same Order, the Court also
reaffirmed the provisional measures indicated in its Order of 8 March 2011, in particular the
requirement that the Parties “shall refrain from any action which might aggravate or extend the
dispute before the Court or make it more difficult to resolve”.
The Court observes that, on 24 September 2013, Costa Rica, with reference to Article 41 of
the Statute of the Court and Articles 73 to 75 of the Rules of Court, filed in the Registry a new
Request for the indication of provisional measures in the present case. Costa Rica clarified that it
was not seeking the modification of the Order of 8 March 2011, but rather that its request was “an
independent [one] based on new facts”. The Registrar immediately communicated a copy of the
said request to the Government of Nicaragua.
The Court recalls that Costa Rica, in outlining the facts which led it to bring the present
request, stated that since the Court’s Order of 16 July 2013 on the Parties’ requests to modify the
measures indicated in its Order of 8 March 2011, it had found out about “new and grave activities
by Nicaragua in the disputed territory”, through the receipt of satellite imagery of that area. In
particular, Costa Rica contended that Nicaragua had commenced construction of two new artificial
caños in the disputed territory.
The Court further recalls that, at the end of its Request for the indication of new provisional
measures, Costa Rica asked the Court:
“as a matter of urgency to order the following provisional measures so as to prevent
further breaches of Costa Rica’s territorial integrity and further irreparable harm to the
territory in question, pending the determination of [the] case on the merits:
(1) the immediate and unconditional suspension of any work by way of dredging or
otherwise in the disputed territory, and specifically the cessation of work of any
kind on the two further artificial caños in the disputed territory, as shown in the
satellite images attached as Attachment PM-8 [to the Request]; - 3 -
(2) that Nicaragua immediately withdraw any personnel, infrastructure (including
lodging tents) and equipment (including dredgers) introduced by it, or by any
persons under its jurisdiction or coming from its territory, from the disputed
territory;
(3) that Costa Rica be permitted to undertake remediation works in the disputed
territory on the two new artificial caños and the surrounding areas, to the extent
necessary to prevent irreparable prejudice being caused to the disputed territory;
and
(4) that each Party shall immediately inform the Court as to its compliance with the
above provisional measures not later than one week of the issuance of the Order”.
*
The Court observes that public hearings on Costa Rica’s Request for the indication of new
provisional measures were held on 14, 15, 16 and 17 October 2013, during which oral observations
were presented by the Agents and Counsel of the Governments of Costa Rica and Nicaragua.
During the hearings, questions were put by some Members of the Court to Nicaragua, to which
replies were given orally; Costa Rica availed itself of its right to comment orally on those replies.
The Court recalls that, at the end of its second round of oral observations, Costa Rica asked
the Court to indicate provisional measures in the same terms as included in its Request, while
Nicaragua, at the end of its second round of oral observations, stated the following:
“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 Costa Rica and
its oral pleadings, the Republic of Nicaragua respectfully submits that,
for the reasons explained during these hearings and any other reasons the Court
might deem appropriate, the Republic of Nicaragua asks the Court to dismiss the
Request for provisional measures filed by the Republic of Costa Rica.”
Reasoning of the Court (paras. 21-58)
I. Prima facie jurisdiction (paras. 21-23)
The Court begins by observing that when dealing with a request for the indication of
provisional measures, there is no need for the Court, 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 provisions 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 seeks to found the jurisdiction of the Court on Article XXXI
of the American Treaty on Pacific Settlement signed at Bogotá on 30 April 1948, as well as on the
declarations made by the Parties accepting compulsory jurisdiction.
The Court recalls that, in its Order of 8 March 2011, it found that “the instruments invoked
by Costa Rica appear, prima facie, to afford a basis on which the Court might have jurisdiction to
rule on the merits, enabling it to indicate provisional measures if it considers that the circumstances
so require”. Moreover, the Court notes that, within the time-limit set out in Article 79, paragraph 1,
of the Rules of Court, Nicaragua did not raise any objection to the jurisdiction of the Court. In
these circumstances, the Court considers that it may entertain the present Request for the indication
of new provisional measures. - 4 -
II. The rights whose protection is sought and
the measures requested (paras. 24-33)
The Court recalls that its power to indicate provisional measures under Article 41 of the
Statute has as its object the preservation of the respective rights claimed by the parties in a case,
pending its decision on the merits thereof. It follows that the Court must be concerned to preserve
by such measures the rights which may subsequently be adjudged by it to belong to either party.
Therefore, the Court may exercise this power only if it is satisfied that the rights asserted by the
requesting party are at least plausible. Moreover, a link must exist between the rights which form
the subject of the proceedings before the Court on the merits of the case and the provisional
measures being sought.
The Court notes that the rights which Costa Rica seeks to protect are the rights it claims to
sovereignty over the territory which it refers to as Isla Portillos, to territorial integrity and its right
to protect the environment in those areas over which it is sovereign. The Court recalls its
statement, in its Order of 8 March 2011, that while “the provisional measures it may indicate would
not prejudge any title”, it appears “that the title to sovereignty claimed by Costa Rica over the
entirety of Isla Portillos is plausible”. The Court sees no reason to depart from this conclusion in
the context of Costa Rica’s present Request. Moreover, to the extent that Costa Rica’s claimed title
is plausible, the Court considers that any future environmental harm caused in the disputed territory
would infringe Costa Rica’s alleged territorial rights. The Court therefore finds that the rights for
which Costa Rica seeks protection are plausible.
The Court then turns to the issue of the link between the rights claimed and the provisional
measures requested. It recalls that the first provisional measure requested by Costa Rica is aimed
at ensuring the immediate and unconditional suspension of dredging or other activity, and
specifically the cessation of work of any kind on the two new caños in the disputed territory. In
this regard, Costa Rica has called the Court’s attention to the possible effect of the construction of
these two caños on the disputed territory and on the course of the San Juan River. The Court
considers that this construction could affect Costa Rica’s rights of sovereignty, as well as
environmental rights connected thereto, to be adjudged on the merits. Therefore, the Court
concludes that a link exists between Costa Rica’s claimed rights and the first provisional measure
being sought.
The Court observes that the second provisional measure requested by Costa Rica is that
Nicaragua immediately withdraw from the disputed territory any personnel, infrastructure
(including lodging tents) and equipment (including dredgers) introduced by it, or by any persons
under its jurisdiction or coming from its territory. In this regard, the Court considers that the
presence of Nicaraguan personnel, infrastructure and equipment on the disputed territory would be
likely to affect the rights of sovereignty which might be adjudged on the merits to belong to
Costa Rica. Therefore, the Court concludes that a link exists between Costa Rica’s claimed rights
of sovereignty and the second provisional measure being sought.
With respect to the third provisional measure sought by Costa Rica, aimed at ensuring that it
be permitted to undertake remediation works in the disputed territory on the two new caños and the
surrounding areas, to the extent necessary to prevent irreparable prejudice being caused to the
disputed territory, the Court considers that this is linked to Costa Rica’s claimed rights of
sovereignty over the disputed territory.
Finally, the Court recalls that the fourth provisional measure requested by Costa Rica is that
each Party shall inform the Court as to its compliance with any provisional measures that may be
indicated by the Court, not later than one week from the issuance of the Order. The Court
considers that this request does not aim to protect Costa Rica’s rights and there is therefore no need
to establish a link between it and Costa Rica’s claimed rights. - 5 -
III. Risk of irreparable prejudice and urgency (paras. 34-50)
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, since its Order of 16 July 2013 on the requests for the modification of the
Order of 8 March 2011 indicating provisional measures, there has been a change in the situation in
the “disputed territory” as identified by the Court in its Order of 8 March 2011. It notes that the
evidence submitted to it shows that two new caños have been built in that territory. Furthermore, a
photograph of 18 September 2013 presented by Costa Rica depicts a shallow trench which begins
at the seaward end of the eastern caño. In the Court’s view, it is apparent from a satellite image of
5 October 2013 that this trench has been extended and currently cuts across the beach, with only a
narrow stretch of sand separating it from the sea. The Court further notes that Nicaragua
recognizes the existence of the two new caños and the trench, although it states that all work
relating to these features stopped following instructions given by President Ortega on
21 September 2013.
The Court points out that Nicaragua admits that the dredging operations for the construction
of the caños were carried out by a group of its nationals led by Mr. Pastora, in the context of the
implementation of a project for the improvement of navigation on the San Juan River. It further
recalls that this project was approved by the Nicaraguan Ministry of Environmental and Natural
Resources, and that Mr. Pastora was appointed by the President of Nicaragua to carry out this
project and was addressed by the National Port Authority as “Government Delegate for Dredging
Works”.
The Court observes that the evidence submitted to it establishes the presence in the disputed
territory of Nicaraguan personnel carrying out dredging operations, as well as infrastructure
(including lodging tents), and equipment (including dredgers). In addition, the Court notes that the
presence of a Nicaraguan army encampment on the beach is visible on a photograph dated
5 February 2013, allowing the Court to conclude that, at least since that date, Nicaraguan military
personnel have been stationed there. The Court notes that Nicaragua acknowledges the presence of
its military encampment on the beach north of the two new caños which it understands to be a sand
bank. The Court considers however that, contrary to what Nicaragua alleges, this encampment is
located on the beach and close to the line of vegetation, and is therefore situated in the disputed
territory as defined by the Court in its Order of 8 March 2011. The Court observes that the ongoing
presence of this encampment is confirmed by satellite images of 5 and 14 September 2013 and the
photograph of 18 September 2013.
The Court concludes that, in view of the length, breadth and position of the trench next to the
eastern caño, as visible on the satellite image of 5 October 2013, there is a real risk that it could
reach the sea either as a result of natural elements or by human actions, or a combination of both.
Such an outcome would have the effect of connecting the San Juan River with the Caribbean Sea
through the eastern caño. Given the evidence before it, the Court is satisfied that an alteration of
the course of the San Juan River could ensue, with serious consequences for the rights claimed by
Costa Rica. The Court is therefore of the opinion that the situation in the disputed territory reveals
the existence of a real risk of irreparable prejudice to the rights claimed by the Applicant in this
case.
The Court moreover considers that there is urgency. First, during the rainy season, the
increased flow of water in the San Juan River and consequently in the eastern caño could extend
the trench and connect it with the sea, thereby potentially creating a new course for the San Juan
River. Secondly, the trench could also easily be connected to the sea, with minimum effort and
equipment, by persons accessing this area from Nicaraguan territory. Thirdly, a Nicaraguan - 6 -
military encampment is located only metres away from the trench, in an area that Nicaragua
regards as lying outside the disputed territory. Fourthly, in response to a question from a Member
of the Court regarding the location of equipment used in the construction of the caños, Nicaragua
advised the Court of the location of the dredgers, but did not rule out the presence in the disputed
territory of other equipment that could be used to extend the trench.
IV. Measures to be adopted (paras. 51-58)
The Court concludes from the foregoing that, in view of the circumstances, and given that all
the conditions required by its Statute for it to indicate provisional measures have been met, it ought
to indicate such measures to address the new situation prevailing in the disputed territory. These
measures will supplement those already in force under the Order of 8 March 2011.
The Court recalls that it has the power, under its Statute, when a request for provisional
measures has been made, to indicate measures that are in whole or in part other than those
requested. In the present case, having considered the terms of the provisional measures requested
by Costa Rica, the Court finds that the measures to be indicated need not be identical to those
requested.
The Court is of the opinion that the filling of the trench next to the eastern caño must be
carried out immediately. In light of the circumstances of the case and in particular of the fact that
the digging of the trench was carried out by Nicaragua’s personnel, it is for Nicaragua now to fill it,
notwithstanding point 1 of paragraph 86 of the Court’s Order of 8 March 2011. Nicaragua shall do
so within two weeks of the date of the present Order. It shall immediately inform the Court of the
completion of the filling of the trench and shall submit to it, within one week of said completion, a
report containing all necessary details, including photographic evidence.
With regard to the two new caños, the Court recalls that they are situated in the disputed
territory in the “Humedal Caribe Noreste” wetland in respect of which Costa Rica bears obligations
under the Ramsar Convention. Therefore, pending delivery of the Judgment on the merits,
Costa Rica shall consult with the Secretariat of the Ramsar Convention for an evaluation of the
environmental situation created by the construction of the two new caños. The Court states that,
taking into account any expert input from the Secretariat, Costa Rica may take appropriate
measures related to the new caños, to the extent necessary to prevent irreparable prejudice to the
environment of the disputed territory. The Court adds that, in taking these measures, Costa Rica
shall avoid any adverse effects on the San Juan River, and Costa Rica shall give Nicaragua prior
notice of any such measures.
With regard to the presence of Nicaraguan personnel, infrastructure and equipment on the
disputed territory, the Court considers that, in view of its findings with regard to the presence in the
disputed territory of the personnel carrying out the dredging operations and the Nicaraguan army
encampment, the first provisional measure indicated in its Order of 8 March 2011 must be
reinforced and supplemented. Therefore, the Court considers that Nicaragua, after having filled the
trench on the beach, shall (i) cause the removal from the disputed territory of any personnel,
whether civilian, police or security; and (ii) prevent any such personnel from entering the disputed
territory. In addition, in view of the continuing access of the members of the Guardabarranco
Environmental Movement to the disputed territory, the Court considers that Nicaragua shall cause
the removal from and prevent the entrance into the disputed territory of any private persons under
its jurisdiction or control.
The Court emphasizes that its orders on provisional measures have binding effect and thus
create international legal obligations with which both Parties are required to comply. It further
recalls that the question of compliance with provisional measures indicated in a case may be
considered by the Court in the principal proceedings. Finally, the Court adds that the decision
given in the present proceedings in no way prejudges any questions relating to the merits or any - 7 -
other issues to be decided at that stage and leaves unaffected the right of the Governments of
Costa Rica and Nicaragua to submit arguments in respect of those questions.
Operative clause (para. 59)
The last paragraph of the Order reads in full as follows:
“For these reasons,
T HE COURT ,
(1) Unanimously,
Reaffirms the provisional measures indicated in its Order of 8 March 2011;
(2) Indicates the following provisional measures:
(A) Unanimously,
Nicaragua shall refrain from any dredging and other activities in the disputed territory, and
shall, in particular, refrain from work of any kind on the two new caños;
(B) Unanimously,
Notwithstanding the provisions of point 2 (A) above and paragraph 86 (1) of the Order of
8 March 2011, Nicaragua shall fill the trench on the beach north of the eastern caño within two
weeks from the date of the present Order; it shall immediately inform the Court of the completion
of the filling of the trench and, within one week from the said completion, shall submit to it a report
containing all necessary details, including photographic evidence;
(C) Unanimously,
Except as needed for implementing the obligation under point 2 (B) above, Nicaragua shall
(i) cause the removal from the disputed territory of any personnel, whether civilian, police or
security; and (ii) prevent any such personnel from entering the disputed territory;
(D) Unanimously,
Nicaragua shall cause the removal from and prevent the entrance into the disputed territory
of any private persons under its jurisdiction or control;
(E) By fifteen votes to one,
Following consultation with the Secretariat of the Ramsar Convention and after giving
Nicaragua prior notice, Costa Rica may take appropriate measures related to the two new caños, to
the extent necessary to prevent irreparable prejudice to the environment of the disputed territory;
in taking these measures, Costa Rica shall avoid any adverse effects on the San Juan River;
IN FAVOUR : President Tomka; Vice-President Sepúlveda-Amor; Judges Owada, Keith,
Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue, Gaja,
Sebutinde, Bhandari; Judge ad hoc Dugard;
AGAINST : Judge ad hoc Guillaume;
(3) Unanimously, - 8 -
Decides that the Parties shall regularly inform the Court, at three-month intervals, as to the
compliance with the above provisional measures.”
Judge CANÇADO T RINDADE appends a separate opinion to the Order of the Court;
Judges ad hoc UILLAUME and DUGARD append declarations to the Order of the Court.
Synopses of that separate opinion and those declarations are appended to the present
Summary.
__________ Annex to Summary 2013/3
Separate opinion of Judge Cançado Trindade
1. Judge Cançado Trindade begins his Separate Opinion, composed of five parts, by
identifying some points, raised in the present Order, which appear to him deserving of closer
attention. Given the importance that he attributes to them, he feels obliged,moved by a sense of duty
in the exercise of the international judicial function, to leave on the records the foundations of his
own personal position thereon (part I).
2. He first examines the factual context, as presented to the Court by the submissions of the
Parties in the course of the present proceedings, in both the written phase as well as in the
two rounds of oral arguments (part II). The evidence submitted to the Court has led to its finding
of a change in the situation (since its previous Orders of 08.03.2011, and of 16.07.2013), given the
construction of two new caños, and the presence of a Nicaraguan military encampment, in the
disputed territory (paras. 16-19).
3. Judge Cançado Trindade then moves on, from the factual to the juridico- epistemological
level, so as to focus his reflections on the questions of the configuration of the autonomous legal
regime (as he perceives and conceives it) of Provisional Measures of Protection. In doing so, he
addresses the task of international tribunals, and a reassuring jurisprudential construction
(2000-2013), to this effect (part III). He recalls that “it has been in the era of contemporary
international tribunals that Provisional Measures of Protection have seen the light of day, and have
flourished, in international legal procedure” (para. 20).
4. This brings to the fore the issue of compliance with those measures and the legal
consequences ensuing therefrom. This issue — he proceeds — has not yet been sufficiently
studied and developed, in spite of being closely linked to the pursuit of the realization of justice at
international level. Judge Cançado Trindade thus observes that closer attention needs to be drawn
to the legal regime o f provisional measures, their legal effects and the faithful compliance with
them, and the legal consequences for n on-compliance (paras. 22-24). In his perception, some
endeavours have been undertaken to the effect of jurispru dential construction (paras. 25-28), but
there still remains, in this domain, a long way to go, in the longstanding search for the realization
of justice.
5. In sequence, Judge Cançado Trindade stresses the need to persevere in the on- going
construction of an autonomous legal regime of provisional measures of protection (part IV). In his
understanding, by means of such construction of the propounded autonomous legal regime of
provisional measures of protection, contemporary international tribunals can contribute effectively
to the avoidance or prevention of irreparable harm in situations of urgency, to the ultimate benefit
of all subjects of international law, all justiciables, — States as well as groups of individuals, and
simples particuliers (para. 31).
6. In his final considerations (part V), Judge Cançado Trindade observes that, once a new
situation appears — like the present one in the disputed territory — disclosing urgency and the risk
of irreparable harm, the Court ought to indicate or order promptly new provisional measures,
without postponing a decision to this effect. To him, responsibility for non-compliance with those
measures “is necessarily accompanied by the attribution of that responsibility to the State
concerned. There is an autonomous breach of a conventional obligation (concerning provisional
measures), without prejudice to what will later be decided by the Court as to the merits” (para. 37).
7. In Judge Cançado Trindade’s conception, non- compliance with provisional measures of
protection “reveals an additional ground of responsibility (irrespective of any decision on the
merits)” (para. 39), and the task ahead of the Court is “to extract the consequences ensuing - 2 -
therefrom” (para. 40). Without prejudice to the subsequent decision of the Court as to the merits of
the case, the legal effects of such provisional measures can be more appropriately examined within
the framework of their autonomous legal regime. The day this is done, — he concludes, — “an
additional service will be rendered to the cause of the real ization of justice at international level”
(para. 40).
Declaration of Judge ad hoc Guillaume
Judge ad hoc Guillaume disagrees with the Court as regards point 2 (E) of the operative part
of the Order. In that point the Court envisages the very unlikely s cenario that a risk of irreparable
prejudice to the wetlands protected by the Ramsar Convention would become apparent in future in
the disputed territory as a result of the works in question. The Court has given Costa Rica, and
Costa Rica alone, the right to take the necessary measures to prevent the occurrence of such
prejudice. Judge ad hoc Guillaume considers that it would have been preferable to provide for such
action to be taken by the two States acting jointly.
Declaration of Judge ad hoc Dugard
In his declaration Judge ad hoc Dugard expresses his full support for the Order but states that
the Court would have been wise to provide for the regulation of Costa Rica’s access to the disputed
territory to carry out remediation works on the new caños on account of the disagreement among
the Parties over the question whether Costa Rica might use the San Juan River for this purpose.
___________
Summary of the Order of 22 November 2013