EMBASSYOF NICARAGUA
THE HAGUE
Il October 2013
Ref: HOL-EMB-196
Excellency,
I have the honour to refer to the proceedings Jisted in the Court's docket a<>
Construction of a Road in Costa Rica along !he San Juan River (Nicaragua v. Costa Rica)
Proceedings joined with Certain Activities carried out by Nicaragua in the Border Area (Costa
Rica v. Nicaragua). In particular this Note refers to the Order of the Court dated 30 September
2013 Ref: 142552, for the opening of public hearings on the request made by Costa Rica for
new provisional measures .
Nicaragua would Iike to point out that although it has filedca~ egainst Costa Rica for
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the construction of a Raad (Road 1856) the damage done to the River by the constructi.on of
this road also constitutesan independent aggravation of the dispute under consideration in the
case conceming the Construction of a Raad in Costa Rica along the San Juan River (Nicaragua
v. Costa Rica). The damages caused by the road are an inextricable part of the case conceming
Certain Activities can·ied out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), as
explained in Nicaragua's pleadings, Costa R.ica's road works have caused a surge in the San
Juan River's sediment Joad requiring Nicaragua to take active efforts, including dredging, to
maintain the quality and quantityofthe river's waters.
As the Court recalled initsOrder of 17 April2013:
"Both cases are based on facts relating to works being carried outin,along, or in close
proximity to theSan Juan River, namely the dredging of the river by Nicaragua and the
construction of a raad along its right banby Costa Rica. Bath sets of proceedings are
about the effect of the aforementioned works on the local environment and on the free
1Sce the Application of the Republic of Nicaragua instituting Proceedings against the Republic of Costa
Rica, 21December 20 11. EMBASSY OF NICARAGUA
THE HAGUE
navigation on, and access to, the San Juan River. In this regard, both Pa1ties refer to the
dsk of sedimentation of the San Juan River.
In the present case and in the Nicaragua v. Costa Ricacase, the Pattiës make reference,
in addition, to the harmful environtnental effect of the works in and along the San Juan
River on the fragile fluvial ecosystem (including protected nature preserves in and along
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the river)."
Nicaragua pointed out in its Counter Memorial of 6 August 2012 in the dispute
concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua) that the construction by Costa Rica of a 160 km raad running along the margin of
the San Juan River constituted the most egregious violation of the Order of the Court of 8
March 2011, which indicated unanimously that:
"(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''[/
As the Court is aware, Costa Rica has repeatedly refused to give Nicaragua appropriate
information on the raad works. Indeed, ithas denied that it has any obligation to prepare an
Environmental Impact Assessment orto provide such a document to Nicaragua. As Nicaragua
reported, it sent an intemational team of environmental scientists and road construction expe1ts
to inspect the River in October 2012. They confinned that Costa Rica had not taken mcasures to
stop or even mitigate the serious harms caused to the San Juan de Nicaragua River4•
Furthermore, in anticipation of the second heavy rainy season since the construction of the road
began, Nicaragua sent the same team on a second mission in May 2013. The second mission
2 I.C.J., Order, 17 April2013, Certain Activities carried out by Nicaragua in the Border Area (Costa Rica
3.Nicaragua), Joinder of Proceedings; paras. 20-21.
Order of 8 March 2011 conceming the Request for the Indication of Provisional Measures, para.86 (3).
4G. Mathias Kondolf, Danny Hagans, Bill Weaver and Eileen Weppner, "Environmental Impacts of Juan
Rafael Mora Porras Route 1856, Costa Rica, on the Rio San Juan, Nicaragua," December 2012 ("Kondolf
Report"),(NM, Vol. IlAnnex 1). EMBASSY OF NICARAGUA
THE HAGUE
underscored the urgent need for the mitigation measures previously presented by Nicaragua to
the Court.
As the rainy season enters into its heaviest stage washing even greater quantities of
sediment and run-6ff into the river's waters, Costa Rica has still not provided the necessary
information ta Nicaragua, nor has it taken the necessary actions along the 160 km raad to avoid
or mitigate the irreparable damage that is being inflected on the river and its surrounding
environment, including on navigation and the health and wellbeing of the population living
along its margins.
I have the honour of drawing the attention of the Court ta the fact that in the context of
Costa Rica's request for a modification of the 8 March 2011 provisional measures Order of the
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Court ,Nicaragua itself made a request for a modification of the provisional measures. The
Court decided not to examine Nicaragua's request because "even if the situation invoked in the
Nicaragua v. Costa Rica case were to justity the indication of provisional measures, the
appropriate method of securing that is not the modification of the Order made inthe Costa Rica
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v. Nicaragua case." In accordance with this decision, Nicaragua requests not the modification
of the existing measures, .but the adoption of new provisional measures linked with the
Nicaragua v. Costa Rica case.
Since Costa Rica is once more attempting to modifYthe provisional measures, initially
adopted in CostaRica v.Nicaragua, Nicaragua believes that the oral hearings that will take
place from 14 to l7 October 2013 will provide an appropriate forum for the consideration of
Nicaragua's request for the indication of the measures necessary in arder to avoid a continued
and irreparable damage to Nicaragua's rights.
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Requestfor the Modification of the Order of8 March 2011 in the case conceming Certain Activities
carriedout by Nicaragua in the Border Area (Costa Rica v. Nicaragua),2May 20/3.
6I.C.J.Order, 16 July2013, Certain Activities carried out by Nicaragua in the Border Area (Costa Rica
v. Nicaragua) 1 Construction of a Raad in Costa Rica along the San Juan River (Nicaragua v. Costa
Rica), Provisional Measures, para. 2&. EMBASSY OF NICARAGUA
THE HAGUE
The measures indicated below are known and will not take Costa Rica by surprise.
Nicaragua has been painting out the need for information sharing and remediai measures from
the moment the road works began, and it bas requested them in one way or another in bath cases
that have been joined and are presently before the Court.
Nicaragua, therefore, respectfully requests the Court, as a matter of urgency to prevent
further damage to the River and to avoid aggravation of the dispute, to arder the follawing
provisional measures:
(1) that Costa Rica immediately and unconditionally provides Nicaragua with the
Environmental Impact Assessment Study and ali technical reports and assessments on
the measures necessary to mitigate significant environmental harm to the River,
(2) that Costa Rica immediately takes the following emergency measures:
(a) Reduce the rate and frequency of raad fill failure slumps and lands!ides where
the road crosses the steeper hill slopes, especially in locations where failed or
eroded soi! materials have been or cauld potentially be delivered to the Rio San
Juan.
(b) Eliminate or significantly reduce the risk of future erosion and sediment
delivery at ali stream crossings along Route 1856.
(c) Immediately reduce raad surface erosion and sediment delivery by improving
dispersion of concentrated raad runoff and increasing the number and frequency
of raad drainage structures.
(d) Control surface erosion and resultant sediment delivery from bare soi! areas that
were exposed during clearing, grubbing and construction activities in the last
severa] years.
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THE HAGUE
(3) Order Costa Rica not to renew any construction activities of the raad while the Court is
seized of the present case.
Nicaragua reserves its right to amend and modify the measures sought in light of any
situation that might arise.
Please accept, Excellency, the assurances of my highest consideration.
~~
Carlo~0J. G6MEZ
Agent
Republic of Nicaragua
His Excellency
Mr. Philippe Couvreur
Registrar
International Court of Justice
Peace Palace
The Hague
Request by Nicaragua for the Indication of Provisional Measures