Costa Rica v Nicaragua

• Jurisdiction: Derecho Internacional
• Judge: Gevorgian,Robinson,Owada,Greenwood,Tomka,Skotnikov,Keith,Yusuf,Al-Khasawneh,Xue,Sepúlveda-Amor,Sebutinde,Bhandari,Gaja,Simma,Bennouna,Cançado Trindade,Abraham,Donoghue,Koroma,Guillaume,Dugard
• Court: International Court of Justice
• Date: 02 February 2018

International Court of Justice

Request by Costa Rica for the Indication of Provisional Measures.

Joinder of Proceedings.

Counter-claims.

Requests for the Modification of the Order of 8 March 2011 Indicating Provisional Measures.

Request by Costa Rica for the Indication of New Provisional Measures.

Request by Nicaragua for the Indication of Provisional Measures.

Merits.

Compensation.

(Owada, President; Tomka, Vice-President; Koroma, Al-Khasawneh, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue and Donoghue, Judges; Guillaume and Dugard, Judges ad hoc)

(Tomka, President; Sepúlveda-Amor, Vice-President; Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue, Gaja, Sebutinde and Bhandari, Judges; Guillaume and Dugard,2Judges ad hoc)

(Tomka, President; Sepúlveda-Amor, Vice-President; Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue, Gaja, Sebutinde and Bhandari, Judges; Guillaume and Dugard, Judges ad hoc)

(Tomka, President; Sepúlveda-Amor, Vice-President; Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue, Gaja, Sebutinde and Bhandari, Judges; Guillaume and Dugard, Judges ad hoc)

(Tomka, President; Sepúlveda-Amor, Vice-President; Owada, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue, Gaja, Sebutinde and Bhandari, Judges; Guillaume and Dugard, Judges ad hoc)

(Tomka, President; Sepúlveda-Amor, Vice-President; Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue, Gaja, Sebutinde and Bhandari, Judges; Guillaume and Dugard, Judges ad hoc)

(Abraham, President; Yusuf, Vice-President; Owada, Tomka, Bennouna, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Robinson and Gevorgian, Judges; Guillaume and Dugard, Judges ad hoc)

(Abraham, President; Yusuf, Vice-President; Owada, Tomka, Bennouna, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Robinson and Gevorgian, Judges; Guillaume and Dugard, Judges ad hoc)

Certain Activities Carried Out by Nicaragua in the Border Area

(Costa Rica

and

Nicaragua)

Construction of a Road in Costa Rica Along the San Juan River

(Nicaragua

and

Costa Rica)1

International Court of Justice — Provisional measures — Requirements for the indication of provisional measures — Prima facie jurisdiction — Jurisdiction under American Treaty on Pacific Settlement, 1948 (Pact of Bogotá) — Plausibility of rights claimed — Whether rights claimed by Costa Rica plausible — Irreparable damage — Whether rights claimed by Costa Rica at imminent risk of irreparable prejudice

International Court of Justice — Procedure — Control of proceedings — Joinder of proceedings — Counter-claims — Admissibility of counter-claims — Whether counter-claims of Nicaragua having direct connection with main claim of Costa Rica — Conditions for establishing whether a counter-claim connected in fact and in law with main claim

International Court of Justice — Evidence — Weight to be given — Expert evidence — Burden and standard of proof — Compensation

Territory — Sovereignty — Disputed territory — Costa Rica's claim that Nicaragua carried out activities in territory under sovereignty of Costa Rica — Extent of disputed territory — Treaty of Limits, 1858 — Cleveland Award, 1888 — Alexander Awards, 1897 — Whether “first channel met” was the caño dredged by Nicaragua starting in 2010 — Whether disputed territory falling under sovereignty of Nicaragua

Environment — Procedural obligations — Substantive obligations — Nicaragua's alleged breaches of international environmental law — Whether Nicaragua having to provide Costa Rica with environmental impact assessment relating to activities in disputed territory — Whether Nicaragua breaching its obligations to notify and consult with Costa Rica — Whether Nicaragua breaching its obligation not to cause transboundary harm — Costa Rica's alleged breaches of international environmental law — Whether Costa Rica breaching its obligation to provide Nicaragua with environmental impact assessment relating to construction of Road 1856 along San Juan River — Whether Costa Rica breaching its obligations to notify and consult with Nicaragua — Whether Costa Rica breaching its obligations under Convention on Biological Diversity, 1992 — Whether Costa Rica breaching its obligation not to cause transboundary harm — Whether Costa Rica breaching Nicaragua's territorial integrity

Rivers — Right of navigation — Whether Nicaragua breaching Costa Rica's right of navigation on San Juan River under Treaty of Limits, 1858 — Pollution

State responsibility — Breach of provisional measures — Whether evidence showing that Nicaragua breached provisional measures — Assessing compliance with provisional measures at merits stage — Costs — Whether Costa Rica to be awarded costs as a result of Nicaragua's breach of provisional measures — Breach of territorial integrity — Presence of Nicaragua's military camp in disputed territory — Declaration that territorial integrity had been breached — Reparation — Compensation to be determined by Parties through negotiation within a year — Whether Court to be requested to determine amount of compensation by either Party after one year had elapsed

Damages — Environmental damage — Consequences of responsibility for environmental damage — Request by Costa Rica to determine amount of compensation — Obligation to make full reparation — Hierarchy of means of reparation — Punitive or exemplary damages — Three-step approach to awarding compensation — Establishment of unlawful act — Causal link between unlawful act and injury suffered — Quantification — Compensation for environmental damage — Compensation for expenses incurred by Costa Rica — Methodology to quantify amount due — Parties disagreeing on appropriate methodology — Expenses by Costa Rica as a result of unlawful activities in disputed territory — Expenses by Costa Rica as a result of Nicaragua's breach of provisional measures — Expenses by Costa Rica for construction and monitoring of a dyke — Costa Rica's claim for pre-judgment and post-judgment interest — Whether pre-judgment interest necessary to ensure full reparation — Date by which compensation to be paid by Nicaragua

Summary:3The facts:—On 18 November 2010, Costa Rica filed with the International Court of Justice (“the Court”) an application instituting

proceedings against Nicaragua concerning the alleged incursion into, occupation and use by Nicaragua's army of Costa Rica's territory. Costa Rica sought to base the Court's jurisdiction on Article XXXI of the American Treaty on Pacific Settlement, 1948 (“the Pact of Bogotá”), as well as on the declarations made by both Costa Rica and Nicaragua under Article 36(2) of the Statute of the International Court of Justice, 1945.

Following hostilities between the Parties in 1857, Costa Rica and Nicaragua signed a Treaty of Limits on 15 April 1858 (“the 1858 Treaty”), which fixed their boundary from the Pacific Ocean to the Caribbean Sea. The 1858 Treaty established a boundary running along the Costa Rican bank of the San Juan River to the end of Punta de Castilla on the Caribbean Sea. Nicaragua was to have dominium and imperium over the waters of the San Juan River.

In 1886, the Parties agreed to submit to United States President Cleveland a dispute concerning the validity of the 1858 Treaty. In 1888, President Cleveland handed down the award upholding the validity of the 1858 Treaty, and deciding that the boundary started from Punta de Castilla as it existed on 15 April 1858 (“the Cleveland Award”). Under the Convention on Border Demarcation concluded between the Republic of Costa Rica and the Republic of Nicaragua, 1896 (Pacheco—Matus Convention), the Parties created two national Demarcation Commissions, both of which included an engineer appointed by the United States President, with wide powers to settle outstanding differences arising during the demarcation works. US Army General Alexander was appointed and made five awards. In his first award of 30 September 1897, General Alexander decided that the Costa Rica—Nicaragua boundary started at the headland as it existed on that day, followed the water's edge around Harbor Head Lagoon, and entered the San Juan River by the “first channel met”.

In the 1980s, some differences arose between the Parties concerning Costa Rica's rights under the 1858 Treaty to navigation on the San Juan River. The Court ruled on those differences in its 2009 Judgment in Dispute regarding Navigational and Related Rights.4

On 18 October 2010, Nicaragua began dredging the San Juan River, creating artificial channels (“caños”) on what Costa Rica claimed to be territory under Costa Rican sovereignty. On 18 November 2010, Costa Rica filed with the Court a case against Nicaragua and requested the Court to indicate provisional measures under Article 41 of its Statute (Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) (the “Certain Activities” case)). The Court gave an Order indicating certain provisional measures on 8 March 2011.

In December 2010, Costa Rica began the construction of Road 1856 Juan Rafael Mora Porras (“the road”), along the Costa Rican bank of the San Juan River. On 22 December 2011, Nicaragua filed with the Court a case against Costa Rica claiming that the construction of the road was causing significant

transboundary harm (Construction of a Road by Costa Rica along the San Juan River (Nicaragua v. Costa Rica) (the “Construction of a Road” case)).

On 17 April 2013, the Court delivered two separate and identical Orders, one for each case, joining the proceedings in the two cases. On 18 April 2013, the Court delivered an Order on the counter-claims presented by Nicaragua in Certain Activities. On 16 July 2013, the Court delivered an Order on the requests of Costa...