Certain activities carried out by Nicaragua in the border area (Costa Rica v. Nicaragua)

Application was filed by the Republic of Costa Rica instituting proceedings against the Republic of Nicaragua on the basis of alleged incursion into, occupation of and use by Nicaragua’s Army of Costa Rican territory. Costa Rica alleged that Nicaragua had constructed an artificial canal across an area of Costa Rican territory unlawfully occupied by Nicaraguan armed forces;

 whereas, to this end, Nicaragua  illegally deforested areas of internationally protected primary forests; and Nicaragua’s actions had caused serious damage to a fragile ecosystem, modified unilaterally the boundary between the two Parties, by attempting to deviate the course of the San Juan river, in spite of the Costa Rica’s constant, unambiguous and incontestable recognition of the Applicant’s sovereignty over Isla Portillos, which the said canal would henceforth intersect.

Costa Rica submitted that it was not opposed to Nicaragua carrying out works to clean the San Juan river, provided that the works did not affect Costa 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;  Costa Rica further asserted that the dredging works carried out by Nicaragua on the San Juan river did not comply with the conditions, firstly because Nicaragua had deposited large amounts of sediment from the river in the Costa Rican territory and had proceeded to deforest certain areas; secondly, because the works, and those relating to the cutting of the disputed canal, had as a consequence the significant deviation of the waters of the Colorado river.

It also asserted that the part of its territory affected by Nicaragua’s activities was protected under the Convention on Wetlands of International Importance especially as Waterfowl Habitat, done at Ramsar on 2 February 1971 (United Nations Treaty Series (UNTS), Vol. 996, No. I-14583, p. 245), and that on 17 December 2010, further to a Mission, a report by the Ramsar Secretariat  stated that the work undertaken by Nicaragua had inflicted serious damage on the protected wetlands; whereas Costa Rica also referred to a report of 4 January 2011 drawn up by the Operational Satellite Applications Programme of the United Nations Institute for Training and Research relating to the geomorphological and environmental changes likely to be caused by Nicaragua’s activities in the border region;

Nicaragua on the other hand stated that the activities it was accused of by Costa Rica took place on Nicaraguan territory and that they did not cause, nor do they risk causing, irreparable harm to the other Party. Referring to the first Alexander Award dated 30 September 1897, Nicaragua maintained that, from the point on the coast originally identified as Punta Castilla, the boundary followed the eastern edge of the Harbor Head lagoon before joining the San Juan river by the first natural channel in a south-westerly and then a southerly direction; that the boundary line in the area in dispute derived from the very terms of the Alexander Award and was more rational than the line claimed by Costa Rica, since it linked, by the said channel, the bed of the San Juan river to the Harbor Head lagoon, over which Nicaragua was indisputably sovereign; and that the exercise in various forms and over several years of sovereign prerogatives in the region in question by the Nicaraguan public authorities was confirmation of Nicaragua’s title to territory.

Nicaragua asserted that since the said natural channel had become obstructed over the years, it had undertaken to make it once more navigable for small vessels. Nicaragua also submitted that the number of trees felled was limited and that it had undertaken to replant the affected areas and the dredging operations on the San Juan river were made necessary by the progressive sedimentation of its bed and that it had not only a sovereign right to dredge the river, but also an international obligation to do so; whereas it stated that these operations, aimed at improving the navigability of the river, had only been authorized after an environmental impact assessment had been duly completed; and added that, as in the case of the cleaning and clearing of the channel, any debris from the dredging of the river had been set on Nicaragua’s side of the border, at various clearly identified sites. Nicaragua contended that Costa Rica did not suffer, nor was it likely to suffer, any harm on account of these disputed activities; whereas it contested the scientific value of the Ramsar report on the grounds that it was drawn up on the basis of information supplied solely by Costa Rica. Nicaragua disputed that elements of its armed forces had occupied an area of Costa Rican territory; whereas it stated 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, but clarified that these troops had remained in Nicaraguan territory and that they were no longer present in the border region where those activities took place;

Costa Rica 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 requested the Court to order the following provisional measures:

1. Pending the determination of the 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) dump sediment.

1. Pending the determination of the case on the merits, Nicaragua shall suspend its ongoing dredging programme in the River San Juan adjacent to the relevant area.
2. Pending the determination of the 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”;

The Court after considering the submissions of both sides concluded that provisional measures in the present case should be indicated as it had 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, as Article 75, paragraph 2, of the Rules of Court expressly state ( Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993).

Given the nature of the disputed territory, the Court held that each Party must refrain from sending to, or maintaining in the disputed territory, including the caño, any personnel, whether civilian, police or security, until such time as the Court  decide the dispute on the merits or the Parties come to an agreement on the subject. It further held that in order to prevent the development of criminal activity in the disputed territory in the absence of any police or security forces of either Party, each Party had the responsibility to monitor that territory from the territory over which it unquestionably held sovereignty, i.e., in Costa Rica’s case, the part of Isla Portillos lying east of the right bank of the caño, excluding the caño; and, in Nicaragua’s case, the San Juan river and Harbor Head lagoon, excluding the caño.  The Court further indicated that Costa Rica might dispatch civilian personnel charged with the protection of the environment to the disputed territory, including the caño, but only in so far as it was necessary to avoid irreparable prejudice being caused to the part of the wetland where that territory was situated; Costa Rica should consult with the Secretariat of the Ramsar Convention in regard to these actions, give Nicaragua prior notice of them and use its best endeavour to find common solutions with Nicaragua in this respect;

The Court held that it cannot be concluded at this stage from the evidence adduced by the Parties that the dredging of the San Juan river was creating a risk of irreparable prejudice to Costa Rica’s environment or to the flow of the Colorado river; and the Court concluded that in the present circumstances of the case the provisional measure requested by Costa Rica regarding stopping of the construction or enlargement of a canal should not be indicated.