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Nicaragua Files New Proceedings Against Costa Rica Before the International Court of Justice over Sovereignty Violations and Major Environmental Damages to its Territory

Wednesday, 22 February 2012
by Kyriaki Monezi, Lawyer, MEPIELAN Centre Researcher, Panteion University of Athens, Greece
On 22 December 2011 the Republic of Nicaragua filed suit against the Republic of Costa Rica at the International Court of Justice (ICJ) alleging that Costa Rica’s plan for the construction of a road along the border area between the two countries violates its territorial integrity and has serious environmental consequences to the ecosystem.

According to the ICJ press release[1], Nicaragua claims inter alia that “Costa Rica’s unilateral actions threaten to destroy the San Juan de Nicaragua River and its fragile ecosystem, including the adjacent biosphere reserves and internationally protected wetlands that depend upon the clean and uninterrupted flow of the River for their survival”. It states also that “the construction works have already resulted in dumping in the River of substantial volumes of sediments  - soil, uprooted vegetation and felled trees- produced by the clearing and leveling of the land that now serves as the road bed’.

The Applicant contends that “the felling of trees and the removal of topsoil and vegetation close to the River bank facilitate erosion, and the leeching of even greater amounts of sediments into the river. The sedimentation of the River poses a clear and imminent danger to water quality, to aquatic life (including several endangered species), and to rare and diverse fauna and flora that populate the river banks on both sides, especially those areas that form parts of the Biosphere Reserve Indio Maiz, forming one of the most extensive biological nuclei of the Mesoamerican Biological Corridor”. It also claims that “the road will have a major impact on the environment by further degrading the soil already devastated by deforestation due principally to agricultural and industrial developments on Costa Rica’s territory and causing substantial damage and silting of the San Juan River as well as altering the landscape and threatening the biodiversity”. As a result, “these works have already caused and will continue to cause significant economic damage to Nicaragua”.

Nicaragua requests the ICJ to adjudge and declare that Costa Rica has breached its obligation not to violate Nicaragua’s territorial integrity and its obligations to respect international environmental law. In particular, Nicaragua claims that Costa Rica violated a number of Environmental Conventions, such as Ramsar Convention on Wetlands, Convention on Biological Diversity, Convention of the Biodiversity and Protection of the Main Wild Life Sites in Central America and the Agreement over the Border Protected Areas between Nicaragua and Costa Rica (International System of Protected Areas for Peace Agreement/the Si-a-Paz Project). In addition, Nicaragua requests that Costa Rica must (a) restore the situation to the status quo ante, (b) pay all the damages and (c) restrain from any future development in the area, unless Costa Rica provides to Nicaragua an adequate transboundary Environmental Impact Assessment (EIA). Finally, it alleges that Costa Rica has repeatedly refused to give any appropriate information on the construction works and has denied that it had such an obligation. Therefore, Nicaragua requests that Costa Rica must cease all constructions underway and present Nicaragua an Environmental Impact Assessment with all the details of the works.

By an Order of 23 January 2012[2], the ICJ fixed 19 December 2012 and 19 December 2013 as the respective time-limits for the filing of the initial pleadings of the Parties. The subsequent procedure has been reserved for further decision.

These new proceedings are connected to the original proceedings instituted by Costa Rica over a year ago: an Application to the ICJ against Nicaragua in the Case Concerning Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)[3]. On 18 November 2010, Costa Rica charged Nicaragua of military incursion in connection with the construction of a canal in San Juan River and the related works of dredging on the River. Issues of sovereignty and environmental protection correspondingly played a prominent role. In particular, Costa Rica claimed that Nicaragua has breached inter alia its obligations under the Ramsar Convention by artificially channeling the San Juan River from its natural watercourse without the consent of Costa Rica. It also indicated that Nicaragua posed a serious threat to its internationally protected wetlands and national wildlife areas located in the region. Responding to this situation, Nicaragua stated in its Application of 22 December 2011 that it reserves the right to request that the proceedings in both cases should be joined.

In regard to the historical and geographical context and origin of both pending cases, it is worth noting that a boundary dispute between Costa Rica and Nicaragua over the San Juan River has been going on over the years. Recently, in 2009, the ICJ in the Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua) issued a ruling over Nicaragua’s treaty obligation[4] to allow Costa Rica’s free navigation with purposes of commercial tourism[5]. In this Case, the Court concluded that Nicaragua had not acted in conformity with the obligations under the 1858 Treaty of Limits, when it implemented measures requiring visas, tourist cards and the payment of charges in respect of vessels, boat operators and their passengers exercising the Costa Rica’ s right of free navigation.  But what makes the above pending cases interesting is the fact that they pose questions of violation of international environmental law to the ICJ and, in particular, of transboundary environmental damage. Transboundary harm disputes are rarely brought before the International Court. Jurisdiction of the ICJ has been often criticized, since only States may apply to and appear before it[6], while the Court can only deal with a dispute when the States concerned have recognized its jurisdiction[7]. The above pending cases do not present either of these problems. In fact, the ruling of the Court could have a significant impact on the future of international environmental litigation, especially on claims for transboundary environmental damage.


Endnotes

  1. Case concerning Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), available at http://www.icj-cij.org/docket/files/152/16857.pdf (Last accessed: February, 12 2012)
  2. Available at http://www.icj-cij.org/docket/files/152/16865.pdf (Last accessed: February, 12 2012)
  3. ICJ Reports available at http://www.icj-cij.org/docket/index.php?p1=3&p2=2. For further information, see: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&code=crn&case=150&k=ec (Last accessed: February, 12 2012)
  4. The Treaty of Limits of 18 April 1858 between Costa Rica and Nicaragua
  5. ICJ Reports  available at http://www.icj-cij.org/docket/index.php?p1=3&p2=2. For further information, see: http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=37&case=133&code=coni&p3=6 (Last accessed: February, 12 2012)
  6. Art.35(1), Statute of the International Court of Justice, 1978
  7. Art 36. In the following eight cases, the Court found that it could take no further steps upon an Application in which it was admitted that the opposing party did not accept its jurisdiction: Treatment in Hungary of Aircraft and Crew of the United States of America (United States of America v. Hungary) (United States of America v. USSR); Aerial Incident of 10 March 1953 (United States of America v. Czechoslovakia); Antarctica (United Kingdom v. Argentina) (United Kingdom v .Chile); Aerial Incident of 7 October 1952 (United States of America v. USSR); Aerial Incident of 4 September 1954 (United States of America v. USSR); and Aerial Incident of 7 November 1954 (United States of America v. USSR). For further information, see: http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=2, (Last accessed: February, 12 2012).

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