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Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica)

Published online by Cambridge University Press:  20 January 2017

Jacob Katz Cogan
Jacob Katz Cogan*
Affiliation:
University of Cincinnati
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Type
International Decisions
Information
American Journal of International Law , Volume 110 , Issue 2 , April 2016 , pp. 320 - 326
Copyright
Copyright © American Society of International Law 2016

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References

1 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicar.); Construction of a Road in Costa Rica Along the San Juan River (Nicar. v. Costa Rica) (Int’l Ct. Justice Dec. 16, 2015) [hereinafter Judgment]. The basic documents, decisions, pleadings, transcripts, press releases, and other materials for the joined cases and for the separate proceedings are available on the Court’s website, http://www.icj-cij.org. For discussion of the Court’s previous decisions in these cases, including those on provisional measures, joinder, and counterclaims, see Yee, Sienho, The 2013 Judicial Activity of the International Court of Justice, 109 AJIL 339, 349–60 (2015)Google Scholar; and Cogan, Jacob Katz, The 2011 Judicial Activity of the International Court of Justice, 106 AJIL 586, 597–601 (2012)CrossRefGoogle Scholar.

2 Quoting Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicar.), Provisional Measures Order, 2011 ICJ Rep. 6, para. 55 (Mar. 8).

3 Tratado de límites territoriales entre Nicaragua y Costa Rica, Art. II, in Colección De Tratados Celebrados Entre Costa Ricayvarias Naciones Extrangeras 219 (San José, Imp. de la Paz 1861), available at http://catalog.hathitrust.org/Record/010445204.

4 The Court refrained from fully delimiting the boundary. Judgment, para. 70.

5 The Court abstained from deciding Costa Rica’s request that it find Nicaragua in breach of the prohibition of the threator use of force under Article 2(4) of the United Nations Charter and Article 22 of the Charter of the Organization of American States. Id., para. 97.

6 The Court denied all of Costa Rica’s other requests for reparation, including requests for assurances and guarantees of nonrepetition and the payment of costs associated with requesting and obtaining the provisional measures order of November 22, 2013. Id., paras. 138–41, 143– 44, 229(5).

7 The Court has previously offered parties an opportunity to negotiate the quantum of compensation before taking up the question itself. See, e.g., Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), 2010 ICJ Rep. 639, paras. 163–64, 165(8) (Nov. 30); Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 ICJ REP. 168, para. 345(6) & (14) (Dec. 19).

8 Having already found that Nicaragua was responsible for the harm caused by its activities in Costa Rican territory, the Court excluded those activities (including the dredging of the caño) from its environmental law analysis. Judgment, paras. 105, 113.

9 Pulp Mills on the River Uruguay (Arg. v. Uru.), 2010 ICJ Rep. 14, para. 101 (Apr. 20) [hereinafter Pulp Mills ], quoted in Judgment, para. 104.

10 Id., para. 204, quoted in Judgment, para. 104.

11 Quoting Pulp Mills, para. 205.

12 The Court’s analysis was criticized by Judge ad hoc Dugard. See Judgment, Separate Opinion of Judge ad hoc Dugard, paras. 21–35.

13 The Court also did not find an applicable obligation to notify and consult under several treaties cited by Costa Rica. Judgment, paras. 106 –11.

14 On the other hand, agreeing with Costa Rica, the Court unanimously “conclude[d] that Nicaragua acted in breach of its obligations under the 2011 [Provisional Measures] Order by [subsequently] excavating the second and third caños and by establishing a military presence in the disputed territory.” Id., paras. 129, 229(3). The Court also found that Nicaragua had breached Costa Rica’s rights of navigation of the San Juan River in two instances. Id., paras. 134 –36, 229(4).

15 Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Feb. 2, 1971, TIAS No. 11084, 996 UNTS 245 [hereinafter Ramsar Convention].

16 Costa Rica claimed exemption from this obligation due to an emergency. Without deciding whether an emer gency could ever exempt a state from this obligation, the Court dismissed Costa Rica’s argument because it concluded that there was “no emergency justifying the immediate construction of the road.” Judgment, para. 159. The Court also rejected Nicaragua’s submission that Costa Rica was obliged to conduct an EIA under the Convention on Biological Diversity. Id., para. 164.

17 The Court’s finding on this point was unanimous.

18 Presumably, the Court was not concluding that Costa Rica had no duty to notify and consult. Rather, Costa Rica’s breach of the EIA obligation obviated the ability to examine that duty, whose breach was implied. The Court did not find an independent obligation to notify in the 1858 Treaty or an obligation to notify and consult in the Ramsar Convention, supra note 15. Judgment, paras. 169–72.

19 The Court merely reiterated what it had stated in Pulp Mills. See text at note 9 supra. On the relationship between procedural and substantive obligations, see McIntyre, Owen, The Proceduralisation and Growing Maturity of International Water Law, 22 J. Envtl. L. 475, 489–90 (2010)CrossRefGoogle Scholar.

20 The Court also found that Nicaragua had failed to make its case that Costa Rica had breached analogous substantive obligations under various treaty regimes or violated Nicaragua’s territorial integrity and sovereignty. Judgment, paras. 220, 223.

21 The Court failed to give a methodological explanation of the customary international law basis for sequencing or a policy rationale that would justify its adoption. Judge Donoghue expressed doubts that “customary interna tional law imposes the specific obligations formulated by the Court” concerning notification and consultation. Id., Separate Opinion of Judge Donoghue, para. 20 [hereinafter Donoghue, J., sep. op.]; see also id., para. 13 (same regarding EIAs).

22 See Neil Craik, The International Law of Environmental Impact Assessment: Process, Substance and Integration 60–61 (2008).

23 Id. at 62.

24 Text of the Draft Articles [on Prevention of Transboundary Harm from Hazardous Activities] with Commentaries Thereto, Arts. 7–9, in Report of the International Law Commission on the Work of Its Fifty-Third Session, 56 UN GAOR Supp. No. 10, at 377, 402–12, UN Doc. A/56/10 (2001) [hereinafter Draft Articles and Com mentaries], reprinted in [2001] 2 Y.B. Int’l L. Comm’n 148, 157–61, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2).

25 Donoghue, J., sep. op., para. 21.

26 Id., para. 24.

27 See, e.g., Draft Articles and Commentaries, supra note 24, at 387–90, [2001] 2 Y.B. Int’l L. Comm’n at 152–53 (commentary to draft Article 2).

28 Id. at 381, [2001] 2 Y.B. Int’l L. Comm’n at 149 –50 (commentary to draft Article 1).