WRITTEN OBSERVATIONS ON THE REQUEST BY NICARAGUA FOR THE
MODIFICATION OF THE COURT'S ORDER OF 8 MARCH 2011 ON PROVISIONAL
MEASURES IN THE CASE CONCERNING CERTAIN ACTIVITIES CARRIED OUT BY
NICARAGUA IN THE BORDER AREA (COSTA RICA v NICARAGUA)
A. INTRODUCTION
1. I have the honour to refer to Costa Rica's Request for the Modification of the Court's Order
of 8 March 2011 on provisional measures in the case concerniCertain Activities carried
out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) (Certain Activities case)
dated 21 May 2013 and filed with the Court on 23 May 2013, grounded on Article 41 of the
Statute of the Court and Article 76, paragraph 1, of the Ru1es of Cour(Costa Rica's
Request).
2. On 14 June 2013, Nicaragua fùed with the Court written observations on Costa Rica's
Request in which it also set out a Request for the Modification the second and third
provisional measures indicated by the Court in the saidon the basis of Article 76 of the
Ru1esof Court (Nicaragua's Written Observations).The present Written Observations are
related to the requests for modification raised by Nicaragua. These two requests are each
addressedinturn.
B. NICARAGUA'S REQUEST FOR THE MODIFICATION OF THE SECOND
PROVISIONAL MEASURE INDICATED BY THE COURT: OVERVIEW
3. In its Order of 8 March 2011, the Court indicated the second provisional measure in the
followingterms:
"Notwithstanding point (1) above, Costa Rica may dispatch civilian personnel charged
with the protection of the environment to the disputedterritory, inclcano,bute
on1yin so far as it is necessary to avoid irreparableprejudice being caused to the part of
the wetlandwhere that territory is situated; Costa Rica shall consu1twith the Secretariat
of the R.amsarConvention in regard to these actions, give Nicaragua prior notice of them and use its best endeavours to fmd common solutions with Nicaragua in this
1
respect".
4. Nicaragua requests the Court to modify the secondprovisional measure to read as follows:
"Notwitb.standing point (1) above, bath Parties may dispatch civilian personnel
charged with the protection of the environment to the disputed territory, including the
cano, 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; bath Parties shall consult in
regard to these actions and use their best endeavours to fmd common solutions with the
other Party in this respect"?
5. Nicaragua thus requests the Court to delete the reference to Costa Rica and to the Secretariat
of the Ramsar Convention in the second provisional measure, and to permit Nicaraguan
personnel charged with the protection of the environment to access the area indicated by the
Court in its Order of 8 March 2011 (the Area).
6. Nicaragua's request to modify the second provisional order must be rejected inter alia
because:
(1) the Court explicitly held that Costa Rica's claim to title over Islas Portillos was
"plausible", whereas it made no such :findingwith respect to Nicaragua; 3
(2) the Court explicitly held that Costa Rica "must be able to dispatch civilian personnel
charged with the protection of the environment" to the Area, whereas it made no such
4
dispensation for Nicaragua;
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional
Measures, Order of 8 March 2011, LC.J. Reports 2011, p. 6 ('Certain Activities case, Order of 8 March
2011'), at p. 27, para. 86(2).
2
Nicaragua's Written Observations, para. 53 (emphasis added).
Certain Activities case, Order of8 March 2011, at p. 19, para. 58.
4 Ibid., at pp. 25-26, para. 80.
2 (3) Costa Rica has an obligation to monitor the Area whlch forms part of a protected
wetland registered by Costa Rica under the Ramsar Convention, whereas as the Court
5
explicitly recognized, Nicaragua has no such obligation;
(4) the entire basis of the Court's order was that (with the exception of the dispensation
for Costa Rican civilian personnel) neither party would send persons to the Area or
maintain them there for any purpose; but this situation would be radically changed if
Nicaragua's request were accepted in any form; 6
(5) the sponsoring on a large scale of activities calculated to change the status quo in an
area whlch at this stage of the proceedings is considered by the Court as ex hypothesi
7
a disputed area by the Court, is completely inconsistent not just with the provisional
measures actually indicated by the Court but with the whole object and purpose of
provisional measures;
(6) Nicaragua's proposed reformulation of the second provisional measure implies the
possibility of concomitant exercise of public environmental activities by two different
States in the same area, increasing the risk of serious incidents, thus going directly
contrary to the purpose and function of provisional measures';
(7) Nicaragua's proposed deletion of any reference to the Ramsar Secretariat in the
second provisional measure is an attempt to vitiate the role of this treaty body in
providing administrative, scientific and technical support to Costa Rica in the
environmental recovery process of the Area in line with the Ramsar Convention; and
(8) The Road, and the joinder of the Certain Activities and Raad cases, are not valid
reasons to modi:fythe secondprovisional measure.
7. Each of these points is briefly addressed below. Before doing so, it should be noted that
nowhere in its Written Observations does Nicaragua deny that it is sponsoring, sending to
and maintaining large numbers of persons in the Area. For the Court to fail to reinforce its
Ibid.
6 See ibid,at pp. 24-25, paras. 75-76.
7
Ibid.at p. 19, para. 56.
3 Order of 8 March 2011 to prevent this egregious pattern of conduct and to allow the addition
of Nicaraguan environmental agents to those Nicaraguans already present in the area would
amount to rewarding a State for violating a provisional measures order binding upon it.
C. NICARAGUA'S REQUEST FOR THE MODIFICATION OF THE SECOND
PROVISIONAL MEASURE MUST BE REJECTED
(1) Nicaragua's request to modify the second provisional measure must be rejected
because the Court explicitly held that Costa Rica's claim to title over Islas Portillos
was "plausible",whereas it made no sncb finding with respect to Nicaragua
8. Before indicating the second provisional measure requested by Costa Rica in its Order of 8
March 2011, the Court fust determined that "the title to sovereignty claimed by Costa Rica
8
over the entirety of Isla Portillos is plausible". In the same Order, the Court declined to
determine the plausibility of Nicaragua's very recent claim of title to sovereignty over the
9
Area. In order for the second provisional measure to be modified to authorise Nicaragua to
dispatch to the Area personnel charged with the protection of the environment, Nicaragua
10
must have a plausible title to sovereignty overthe Area.
9. Nicaragua has failed to demonstrate that it bas a plausible title to sovereignty over the Area.
Prior to Nicaraguan military personnel unlawfully occupying the Area in October 2010,
Nicaragua never advanced any claim of title to sovereignty over the Area. 11 With regard to
map evidence, it is recalled that the official cartography of both Parties has consistently
shown the Area as Costa Rican. 12 The first articulated legal basis for Nicaragua's claim to
Ibid., at p. 19, para. 58.
9 Ibid..
JO Ibid.,at p. 18, para. 53; Questions relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 139, at p. 151, paras. 56-
57.
Il Certain Activities case, CRM, paras. 4.55-4.57.
12 Ibid., paras. 4.20-4.37.
4 the Area was made before the Court at the hearing on provisional measures. 13 The Court
does not, of course, need to assess these arguments on the merits at this stage of the
proceedings. But the fact that (however weak they may be) they have never been made
before is itself significant.
10.Additionally, the Court indicated the second provisional measure taking into account that the
Area was, and remains, registered by Costa Rica as a protected wetland under the Ramsar
14
Convention. Nicaragua's claim oftitle to sovereignty over the Area is inconsistent with its
failure to register the Area as a protected wetland under the Ramsar Convention, despite the
registration by Nicaragua of other nearby wetlands under that Convention. 15
(2) The Court explicitly held that Costa Rica must be able to dispatch "civilian
personnel charged with the protection of the environment" to the Area, whereas it
made no such dispensation for Nicaragua
11.In its Order of 8 March 2011, the Court explicitly held that Costa Rica "must be able to
dispatch civilian personnel charged with the protection of the environment" to the Area,
whereas it made no such dispensationfor Nicaragua.
12.The Court said:
"Whereas the disputed territory is moreover situated in the 'Humedal Caribe Noreste'
wetland, in respect of which Costa Rica bears obligations under the Ramsar Convention;
whereas 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 the part of that
wetland where that territory is situated; whereas for that purpose Costa Rica must be able
to dispatch civilian personnel charged with the protection of the environment to the said
territory, including the cano, but only in so far as it is necessary to ensure that no such
prejudice be caused; and whereas Costa Rica shall consult with the Secretariat of the
13 Certain Activities case, CR 20ll/2, p.12, para. 23 (Argüello Gomez), pp.27-28, para. 25 (McCaffrey). See also
CRM, para4.55.
14
Certain Activities case, Order of8 March 2011, at p. 25, para. 80.
15
Ibid., at p. 25, para. 79.
5 Ramsar Convention in regard to these actions, give Nicaragua prior notice of them and
use its best endeavours to :findcommon solutions with best endeavours to :findcommon
16
solutions with Nicaragua in this respect".
13. Thus, although Costa Rica is thereby required to consult with the Ramsar Secretariat (which
it bas done) and provide Nicaragua with prior notice (which it bas done), in this passage the
Court expressly recognised a Costa Rican responsibility and prerogative, not a Nicaraguan
one. Nicaragua's new request is completely inconsistent with the Court's reasoning.
(3) Costa Rica is under an obligation to monitor the Area which forms part of a
protected wetland under the Ramsar Convention
14. As stated in the preceding section, the Court indicated the second provisional measure taking
into account inter alia that the Area was - and remains - registered by Costa Rica as a
protected wetland under the Ramsar Convention. As a result, Costa Rica bears obligations
under the Ramsar Convention with regard to the Area, 17 including an obligation to monitor
and ensure that it is informed about a change in the ecological character of the Area. In this
regard, Article 3, paragraph 2, of the Ramsar Convention provides:
"Each Contracting Party shall arrange to be informed at the earliest possible time if the
ecological character of any wetland in its territory and included in the List [of Wetlands
of International Importance registered with Ramsar] bas changed, is changing or is likely
to change as a result of technological development, pollution or other human interference.
Information on such changes shall be passed without delay to the organization or
18
govemment responsible for the continuing bureau duties specified in Article 8."
15. By contrast, the Area is not, and bas never been, registered by Nicaragua under the Ramsar
Convention, and it is not incumbent on Nicaragua to monitor and ensure that it is informed
16 Ibid.at pp. 25-26, para. 80.
17 Ibid.at p. 25, para. 80.
18
Ramsar Convention, Article 3, paragraph 2.
6 about a change in the ecological character of the Area under Article 3, paragraph 2, of the
Ramsar Convention.
16. Itis entirely appropriate that the State which registered the Area as a protected wetland under
the Ramsar Convention, and which thereby bears the obligation under Article 3, paragraph 2,
of the Convention in relation to the Area, is the only Party authorized to enter the Area in
accordance with the requirements laid down by the Court in the second provisional measure.
In this regard, the Court "consider[ed] that, 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
19
that wetland where that territory is situated". Inversely, it is highly inappropriate for aState
which did not register the Area as a protected wetland under the Ramsar Convention, and
which does not bear any obligation under Article 3, paragraph 2, of the Convention with
regard to the Area, to nevertheless purport to comply with that obligation by undertaking the
public act of entering the Area in order to carry out monitoring activities thereon and remain
informed of a change in the ecological character of the Area.
17.Moreover, Nicaragua's conduct to date demonstrates that it would be unable to act in
accordance with its own reformulation of the second provisional measure, and dispatch
personnel charged with the protection of the environment to the Area in order to avoid
irreparable prejudice being caused to the part of the wetland where that Area is situated. 1bis
is because Nicaragua openly supports and sponsors the presence of Nicaraguan nationals in
the Area and the harm caused by the activities that such individuals are undertaking there. In
its Written Observations, Nicaragua .continued to endorse the activities of Nicaraguan
nationals in the Area who form part of the so-called "Guardabarranco Environmental
Movement" noting that ''Nicaraguanenvironmentalistsare in the best position to take care of
20
Nicaragua's natural heritage [...] including the area in dispute". But this unwarranted and
self-judging statement con:flictswith the position taken by the Court, which was careful to
ensurethat no further environmentalharm would be causedto the Area.
19 Certain Activities case, Order of 8 March 2011, at pp. 25-26, para. 80.
20 Nicaragua's Written Observations, para. 14.
718.With regard to the harm currently being caused to the Area by Nicaraguan nationals, Costa
21
Rica notes that according to a recent satellite image, and contrary to Nicaragua's
22
assertions, the artificial cano constructed by Nicaragua in the Area remains open. The
evidence relied upon by Nicaragua to argue in its Written Observations that the artificial
cano closed up due to an accumulation of sedimentation date back to 2011, and therefore do
not cover the most recent period during which Nicaraguan nationals have been carrying out
works in the Area in an attempt to keep the artificial cano open.Z The actual harm being
caused to the Area by Nicaraguan nationals further demonstrates the urgency of Costa Rica's
Request for the modification of the Court's Order of 8 March 2011 ? 4
(4) The entire basis of the Court's Order was that (with the exception of the specifie
dispensatiorifor Costa Rican civilian personnel) neither party would send persons to
the Area or maintain them there for any purpose; but this situation would be
radically changed ifNicaragua's request were accepted in any form.
19.In its Order of 8 March 2011 the Court recorded Nicaragua's statements ''thatthe work on
the area of the cano has come to an end": 25 for that reason, and for that reason alone, the
Court did not indicate certainmeasures requested by Costa Rica.
20. Likewise the Court noted that ''Nicaragua does not intend to send any troops or other
personnel to the region", but at the same time noted that Nicaragua did intend "to carry out
6
certain activities, ifon/y occasionally, in the disputed territory"? It was by reason of the
threat of such occasional activitiesthat the Court concluded that there was...
"an imminent risk of irreparable prejudice to Costa Rica's claimed title to sovereignty
over the said territory and to the rights deriving therefrom; whereas this situation
21 See Satellite Photo, 13 January 2013, Annex CRW0-1.
22 Nicaragua's Written Observations, para. 26.
23 Costa Rica's Request, para. 8(b) and corresponding footnote.
24
See also Costa Rica's Request, paras. 18-20.
25
CertainActivitiescase,Order of8 March 20Jl, at p. 24, para. 74..
26 Ibid.,at p. 24, para. 75 (emphasis added).
8 moreover gives rise to a real and present risk of incidents liable to cause irremediable
harm in the form ofbodily injury or death".27
Moreover as the Court made clear in paragraphs 78 and 79 of its Order, it did not intend to
allow any Nicaraguan personnel in the Area: those personnel were restricted to "the territory
over which it unquestionably holds sovereignty, i.e., ... in Nicaragua's case, the San Juan
River and Harbor Head Lagoon, excluding the cano". 28
21. One can only imagine the position if Nicaragua had disclosed its intention to send to the
disputed area, and to maintain there, not dozens, not hundreds, but serially thousands of
Nicaraguan "volunteers", and to maintain them there with a view to furthering Nicaragua's
legally unsupportable aspirations for the cano and carrying out other activities there. In fact
Nicaragua's plan for "work in the Area" had not come to an end, whatever it may have told .
the Court; its intention was not to send a few personnel to the Area occasionally but large
numbers on a continuons rolling basis. The conclusion reached by the Court in paragraph 75
of its Order applies afortiori in the circumstances that now obtain.
(5) The sponsoring on a large scale of activities calculated to change the status quo in a
ex hypothesi disputed area is completely inconsistent not just with the provisional
measures actually indicated by the Court but with the whole object and purpose of
provisional measures.
22.Not only is Nicaragua's current course of conduct completely inconsistent with the Court's
Order, it is completely inconsistent with the very idea of provisional measures as measures
intended to maintain the status quo ante and to avoid further disputes. As noted by the
leading authority, "the premise [of provisional measures] is that the object of the litigation
27
Ibid., at p. 24, para. 75.
28
Ibid., at p. 25, para. 78.
9 will be protected and maintained rn its state as it existed on the initiation of the
proceedings". 29
23. Furthermore the Court specifically ordered that each Party should "refrain from any act
which may aggravate or extend the dispute or render it more dif.ficult of solution".30
24. Nicaragua's conduct ignores aUthese considerations and injunctions.
(6) Nicaragua's proposed reformulation of the second provisional measure would
increase the real and present risk of incidents liable to cause irremediable harm in
the form of bodily injury or death occurring
25. The real and present risk of incidents liable to cause irremediable harm in the form of bodily
injury or death as a result of the unlawful presence ofNicaraguan nationals in the Area was a
principal reason that led Costa Rica to request the Court to modi:fyits Order of 8 March 2011
so asto includethe following provisional measures:
"(1) the immediate and unconditional withdrawal of ali Nicaraguan persons from the
Area indicated by the Court in its Order on provisional measures of 8 March 2011;
(2) that both Parties take all necessary measures to prevent any person (other than the
persons whose presence is authorized by paragraph 86(2) of the Order) coming from
their respective territory from accessing the area indicated by the Court in its Order on
provisional measures of 8 March 2011; and
(3) that each Party shall inform the Court as to its compliance with the above
31
provisional measures within two weeks ofthe issue of the modified Order."
26. The unlawful presence of Nicaraguan nationals in the Area is not in dispute between the
Parties. This is a new situation that has arisen since the Court indicated the second
29 S. Rosenne, Provisional Measures in International Law (Oxford, OUP, 2005), pp. 3-4.
30
Certain Activities case, Order of 8 March 20II, at p. 26, para. 83.
31
Costa Rica's Request, para. 21.
10 provisional measure in its Order on 8 March 2011 as there were no Nicaraguan nationals in
the Area carrying out activities there allegedly for the protection of the environment prior to
the indication of provisional measures by the Court. The situation before the Court at the
time of the oral hearings on provisional measures in the Certain Activities case was the
unlawful presence of Nicaraguan military personnel in the Area, which persisted after the
close of the oral hearings on 13 January 2011 as documented by photographs submitted to
32 33
the Court, contrary to Nicaragua's contention in its Written Observations.
27.Nicaragua contends that the presence ofNicaraguan nationals in the Area and the activities
they are undertaking thereon is not in breach of the Court's Order of 8 March 2011. In this
respect, Nicaragua wilfully misconstrues the Court's Order.Nicaragua statesthat the Court in
its Order considered the issue of private individuals, and decided to require the Parties to
monitor the Area and cooperate only to prevent criminal activity in the Area. 34 However, the
paragraph of the Court's Order to which Nicaragua refers addresses private individuals as a
35
consequence of the removal of police and security forces from the Area. It is logical that
the Court would only refer to the criminal activities of private individuals in that context. It
does not mean that the Court implicitly recognized the right of private individuals to enter,
remain on, and carry out unsupervised, unpoliced activities in the Area On the contrary, the
exacting requirements of the second provisional measure indicated by the Court demonstrate
the care taken by the Court to ensure that the only persons authorized to enter the Area -
Costa Rican personnel charged with the protection of the environment - did so only after
Costa Rica frrst consulted with the Secretariat of the Ramsar Convention, gave Nicaragua
prior notice, and used its best endeavours to fmd common solutions with Nicaragua in this
respect. Itis untenable for Nicaragua to maintain that the presence of unsupervised private
individuals in the Area is in accordance with the Court's Orderof 8 March 2011.
32
Certain Activities case, CRM, para. 3.53.
33
Nicaragua's Written Observations, para..
34
Ibid., para. 13.
35
Certain Activities case, Order of 8 March 2011, at p. 25, para. 78.
1128. It is obvious that the presence of Nicaraguans in the Area, carrying out a specifically
Nicaraguan program which Costa Rica plausibly claims is unlawful, increases the real and
present risk of incidents liable to cause irremediable harm in the form of bodily injury or
death occurring. This would especially be the case if Costa Rica were itself to send to and
36
maintain civilian persons on the disputed territory for any purpose. To follow Nicaragua's
reasoning, if Nicaragua can send persons to the Area so too must Costa Rica be entitled to do
so.
29. In short the unlawful presence ofNicaraguan nationals in the Area presents a real and present
risk of incidents liable to cause irremediable harm in the form of bodily injury or death, as
Costa Rica explained in its Request for the modification of the Court's Order of 8 March
37
2011. A reformulation of the second provisional measure in line with Nicaragua's request
would augment the risk of physical and verbal confrontations taking place between
individuals, and thereby Ïl;lcreasethe risk of incidents leading to irremediable harm in the
form of bodily injury or death occurring in the Area. This is because Nicaragua is requesting
the Court's authorization for Nicaraguan personnel charged with the protection of the
environment to access the Area, which by Order of the Court is an area from which the police
and security forces of both Parties are prohibited from entering for the duration of the
proceeding. 38In view of the harassment and verbal abuse of technical Costa Rican personnel
charged with protection of the environment by Nicaraguan nationals in the Area during a site
39
visit undertaken in early April 2011, and the heightened tensions between the two States,
Costa Rica holds grave concems for the welfare of its citizens should the Court authorize the
presence of Nicaraguan personnel in the Area. The real and present risk of incidents liable to
cause irremediable harm in the form of bodily injury or death in the Area demonstrates the
urgency of Costa Rica's Request for the modification of the Court's Order of 8 March 2011.
36
See ibid., at p. 24, para. 75.
37 Costa Rica's Request, para. 18.
38 Certain Activities case, Order of8 March 2011, at p. 27, para. 86(1).
39
See Costa Rica's Request, para. 8, and corresponding footnote.
12 (7) Nicaragua's proposed deletion of any reference to the Ramsar Secretariat in the
second provisional measure is an attempt to vitiate the role of this treaty body in
providing administrative, scientific and technical support to Costa Rica in the
environmental recovery PJ::'OCo essthe Area in line with the Ramsar Convention
30.Nicaragua's request to modify the second provisional order in order to exclude the
supervisory and advisory role of the Secretariat of the Ramsar Convention in the
environmental recovery process of the Area must be rejected in view of the administrative
scientific and technical support provided by the Ramsar Secretariat to the Contracting
Parties, and the fact that the Area forms part of a Wetland of International Importance
registered by Costa Rica under the Ramsar Convention to wbich Nicaragua is also a
Contracting Party.
31. When indicating the second provisional measure, the Court took care to assign the Ramsar
Secretariat a supervisory and advisory role in the environmental recovery process of the
Area. 1bis decision was appropriate in light of this international organization's technical
expertise in matters relating to protected wetlands, the obligations Costa Rica bears under the
40
Ramsar Convention, and the Report on the Area issued by the Ramsar Secretariat. In
accordance with the requirements of the second provisional measure, in April 2011 a joint
Ramsar-Costa Rica mission visited the Area, and Costa Rica subsequently submitted a report
and working plan to the Ramsar Secretariat, 41 which has formed the basis of subsequent
visits by Costa Rican personnel charged with the protection of the environment to the Area.
Nicaragua's request to exclude the involvement of the Ramsar Secretariat in the
environmental recovery process of the Area is contrary to the reasoning of the Court when
indicating the secondprovisionalmeasure.
40
Ramsar Secretariat, Ramsar Advisory Mission Report N° 69: North-eastern Caribbean Wetland of
International hnportance (Humedal Caribe Noreste), Costa Rica, 17 December 2010, produced in Certain Activities
case, CRM, vol. IV, Annex 147.
41
Ministry of the Environment, Energy and Telecommunications of Costa Rica, Technical Report to Ramsar:
"Assessment and Evaluation of the Environmental situation in the Humedal Caribe Noreste within the framework of
the Order of the International Court of Justice", 28 October 2011; CRM in the Certain Activities case, Vol IV,
Annex 155.
13 (8) The construction of a road on Costa Rican territory, and the joinder of the Certain
Activities and Road cases are not valid reasons to modify the second provisional
measure
32.Nicaragua argues that the construction of a road by Costa Rica on Costa Rican territory along
the San Juan River and the joinder of the Certain Activities and Raad cases justify the
modification of the second provisional measure in order to allow Nicaraguan personnel
charged with the protection of the environment to enter the Area in order to take action to
42
avoid irreparable prejudice to the Area. Section C below addresses the joinder of the cases
and its impact on provisional measures. The construction of the road on Costa Rican
territory, whatever its effect on the San Juan River, is not a valid reason justifying the
authorisation of the presence of Nicaraguan personnel charged with the protection of the
environment in the Area for the following reasons.
33.No part of the road is in the Area, as recognised by Nicaragua. Nicaragua contends, without
any evidence, that that construction of the road would increase the accumulation of fluvial
sediments in the Area. According to Nicaragua, since both Parties would abstain to undertake
activities that would increase the "accumulation of fluvial sediments", this would be the
44
reason to allow bath Parties to send their environment personnel to the Area. Leaving aside
the fact that Nicaragua failed to demonstrate the causallink between these two propositions,
it suffices to note that Nicaragua, having sovereignty over the waters of the San Juan River,
bas ample opportmrities at its disposai to verify any alleged accumulation of fluvial
sediments, and to take any alleged necessary measures in this regard, without any need to
send environmentalpersonnel to the Area.
42 Nicaragua's Request, paras. 49-50.
43 "The 250 hectares of disputed land in Harbour Head are far removed from the areas where Costa Rica has
placed its Road" (Raad case, NM, vol. I, p.22, para. 2.18).
44 Nicaragua's Request, para. 50.
14D. NICARAGUA'S REQUEST FOR THE MODIFICATION OF THE TIDRD
PROVISIONAL MEASURE INDICATED BY THE COURT
34. In its Order of 8 March 2011, the Court indicated the third provisional measure in the
following terms:
"Each Party shall refrain from any action which might aggravate or extend the dispute
before the Court or make it more difficult tosolve".
35. Nicaragua requests the Court to modi:fythis provisional measure to read as follows:
"Each Party shall refrain from any action, which might aggravate or extend the dispute
before the Court in either of the joined caseor make it more difficult to resolve,and
will talŒthose actions necessary for avoiding such aggravation or extension of the
45
dispute before the Court."
36.Nicaragua thus requests the Court to widen the scope of the third provisional measure to
encompass matters arising in a different proceeding, namely the case concerning
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica)
(Road case), and to include a positive obligation binding on both Parties, in addition to the
prohibition currently in place.
37. Nicaragua's request to modify the third provisional order must be rejected because (1) the
joinder of theCertain Activitiescase and the Road case does not mean that there is now one
proceeding which should be the subject of joint orders; and in any event, (2) the mitigation·
works for the protection of the environment that Costa Rica is currently undertaking on the
Road is a matter to be addressed only at the merits phasef the proceeding in theRoad case.
45
Nicaragua's Written Observations, para. 53 (emphasis added).
15 (1) The joinder of the Certain Activities case and the Road case does not mean that there
is now one proceeding which should be the subject of joint orders
38.Nicaragua cannot rely on Article 76 of the Rules of Court in order to request the indication of
provisional measures for matters that arise in the Road case before the Court because the
joinder of the Certain Activitiescase and the Road case does not mean that there is now one
proceeding which should be the subject ofjoint orders.
39. Itis recalled that Nicaragua requested the Court to indicate provisional measures in theRoad
case, but its request was not accepted. Consequently, the only provisional measures that
have been indicated are those related to the Certain Activitiescase. The proper avenue for
Nicaragua to proceed with its request for the indicationof a provisional measure in the Road
case is by way of a new application 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. Nicaragua
cannot attempt to use the 'back door' method of requesting the modification of the Court's
Order of 8 March 2011 in the Certain Activitiescase for a separate proceeding in a joined
case following its prior failure to obtain provisional measures in thead case.
(2) The mitigation works for the protection of the environment that Costa Rica is
currently undertaking on the Road are a matter to be addressed at the merits phase
of the proceeding in the Road case.
40. Itis not the case, as Nicaragua suggests in its Written Observations, that the Costa Rican
46
works on the Road are recommencing. Rather, Costa Rica is in the process of undertaking
mitigation works for the protectionof the environment on the Road. These will be illustrated
in detail and duly explained in Costa Rica's forthcoming Counter-Memorial in the Road case.
41. The construction of the Road, entirely on Costa Rican territory, including the mitigation
works currently being undertaken, are matters to be addressed at the merits phase of the
written proceedings in the Road case, and not by way of a request for the modification of
46
Nicaragua's Written Observations, para. 45.
16 provisional measures indicated by the Court in its Order of 8 March 2011 in thCertain
Activitiecase~
E. CONCLUSION
42. For the foregoing reasons, Costa Rica respectfully requests the Court to reject the two
requests by Nicaragua for the modification the Court's Order of 8 March 2011.
Co-Agent
20 June 2013
Certification
I certify that the following documents annexed to these Written Observations of 20 June 2013
are true copies and conformto the original documents.
List of Annexes
Annex Reference Description
CRW0-1 SatellitePhoto,3January 2013
17
Written observations of Costa Rica on Nicaragua's Request for the modification of the Court's Order indicating provisional measures in the Costa Rica v. Nicaragua case