San Juan Case Digest

San Juan case
The dispute arose out of the infrastructure projects undertaken separately by Costa Rica and Nicaragua
in and around the border area.
The issue in question in this disputed case was Nicaragua’s San Juan River dredging program, which
which has been taking place upstream at the San Juan River Delta. And, while there was no question
about sovereignty, there were questions about transboundary environmental impacts. The delta is the
point at which the international borderline follows the San Juan River northeastward, leaving Costa Rica
small slices of land (known as Isla Calero and Isla Portillo in Costa Rica) north of the southeastward
bound Colorado River.
Costa Rica claimed that the dredging program served as an imminent threat to the internationally
protected Northeast Caribbean Wetlands. The Organization of American States and the International
Court of Justice became involved as key actors that would try to arbitrate the conflict. The conflict
heated up when Nicaragua ignored the OAS ruling that favored Costa Rica in the territorial dispute. Soon
thereafter, the ICJ became involved. In the application for provisional measures to the International
Court of Justice, Costa Rica claimed that Nicaragua was in breach of several international obligations,
including the 1958 Cañas-Jerez Treaty, the Cleveland and Alexander Awards, Article VII of the United
Nations Charter regarding territorial invasion, and even the Ramsar Convention on International
Wetlands (ICJ 2010). It demanded that Nicaragua cease all of its dredging efforts, including those in the
dispute zone and in the San Juan River Delta.
Timeline:
 18 November 2010: the Republic of Costa Rica instituted proceedings against the Republic of
Nicaragua in the case concerning Certain Activities carried out by Nicaragua in the Border Area
(Costa Rica v. Nicaragua).
In its Application, Costa Rica alleged in particular that:

- Nicaragua had invaded and occupied Costa Rican territory, and dug a channel thereon
- it also reproached Nicaragua with conducting works (notably dredging of the San Juan River) in
violation of its international obligations
 On the same day, Costa Rica filed a request for provisional measures, as a result of which, by an
Order of 8 March 2011 (hereinafter “the Order of 8 March 2011”), the Court indicated certain
provisional measures addressed to both Parties.
 22 December 2011: Nicaragua instituted proceedings against Costa Rica in a dispute concerning
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica)
In that Application, Nicaragua stated that the case related to “violations of Nicaraguan sovereignty and
major environmental damages on its territory”, contending, in particular, that Costa Rica was carrying
out major road construction works in the border area between the two countries along the San Juan
River, in violation of several international obligations and with grave environmental consequences.
 11 October 2013: Nicaragua filed a request for the indication of provisional measures, seeking to
protect certain rights which, in its view, were being prejudiced by the road construction works
carried out by Costa Rica, in particular the transboundary movement of sediment and other
resultant debris.
 13 December 2013, the Court found, however, that the circumstances, as they presented
themselves to it, were not such as to require the exercise of its power to indicate provisional
measures.
 16 December 2015, the Court found that the construction of the road by Costa Rica carried a risk
of significant transboundary harm and, therefore, it found that Costa Rica had not complied with
its obligation under general international law to carry out an environmental impact assessment
(EIA).
Since Costa Rica had not complied with its obligation to perform an EIA, however, the Court could not
determine whether Costa Rica was required to notify, and consult with, Nicaragua. Turning to the
reparation requested by Nicaragua, the Court concluded that a declaration of wrongful conduct in
respect of Costa Rica’s violation of the obligation to conduct an EIA was the appropriate measure of
satisfaction.
Costa Rica alleged that:

A. Nicaragua breached the procedural obligations to carry out an appropriate transboundary
environmental impact assessment of its dredging works, and to notify, and consult with, Costa Rica
regarding those works.
- It submits in particular that the analysis carried out in the Environmental Impact Study undertaken by
Nicaragua in 2006 does not support the conclusion that the dredging project would cause no harm to
the flow of the Colorado River.
- Moreover, the Environmental Impact Study (EIS) did not assess the impact of the dredging programme
on the wetlands.
- It further maintains that the artificial changes to the morphology of the river resulting from Nicaragua’s
dredging activities risked causing an adverse impact on those wetlands.
- It also argues that a document entitled “Report : Ramsar Advisory Mission No. 72”, prepared in April
2011, confirms the existence of a risk of transboundary harm, shows that Nicaragua’s study did not
contain an assessment of that risk, and concludes that such an assessment should have been
undertaken prior to the implementation of the dredging programme.
Nicaragua:
- contends for its part that its 2006 Environmental Impact Study and the related documentation fully
addressed the potential transboundary impact of its dredging programme, including its effects on the
environment of Costa Rica and the possible reduction in flow of the Colorado River
- it points out that this study concluded that the programme posed no risk of significant transboundary
harm and would actually have beneficial effects for the San Juan River and the surrounding area
- as to the document entitled “Report : Ramsar Advisory Mission No. 72”, Nicaragua argues that it was
only a draft report, on which Nicaragua commented in a timely manner, but which the Ramsar
Secretariat never finalized ; accordingly, it should be given no weight
- furthermore, Nicaragua explains that the report’s conclusion that there had been no analysis of the
impact of the dredging programme on the hydrology of the area was incorrect, as Nicaragua pointed out
in the comments it submitted to the Ramsar Secretariat
ICJ: emphasize in its judgment , as held in the case concerning Pulp Mills on the River Uruguay
(Argentina v. Uruguay), to wit:
“The principle of prevention, as a customary rule, has its origins in the due
diligence that is required of a State in its territory. It is ‘every State’s obligation not
to allow knowingly its territory to be used for acts contrary to the rights of other
States’ (Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J.
Reports 1949, p. 22). A State is thus obliged to use all the means at its disposal in order
to avoid activities which take place in its territory, or in any area under its jurisdiction,
causing significant damage to the environment of another State.”
Furthermore, the Court concluded in that case that “it may now be considered a requirement under
general international law to undertake an environmental impact assessment where there is a risk that
the proposed industrial activity may have a significant adverse impact in a transboundary context, in
particular, on a shared resource.”
Although the Court’s statement in the Pulp Mills case refers to industrial activities, the underlying
principle applies generally to proposed activities which may have a significant adverse impact in a
transboundary context. Thus, to fulfil its obligation to exercise due diligence in preventing
significant transboundary environmental harm, a State must, before embarking on an activity having
the potential adversely to affect the environment of another State, ascertain if there is a risk of
significant transboundary harm, which would trigger the requirement to carry out an environmental
impact assessment.
Determination of the content of the environmental impact assessment should be made in light of the
specific circumstances of each case.
As the Court held in the Pulp Mills case,

“It is for each State to determine in its domestic legislation or in the authorization
process for the project, the specific content of the environmental impact
assessment required in each case, having regard to the nature and magnitude of
the proposed development and its likely adverse impact on the environment as well as to
the need to exercise due diligence in conducting such an assessment.”
If the environmental impact assessment confirms that there is a risk of significant transboundary
harm, the State planning to undertake the activity is required, in conformity with its due diligence
obligation, to notify and consult in good faith with the potentially affected State, where that is
necessary to determine the appropriate measures to prevent or mitigate that risk.
The Court notes that the risk to the wetlands alleged by Costa Rica refers to Nicaragua’s dredging
activities as a whole, including the dredging of the 2010 caño. The Court recalls that the dredging
activities carried out in breach of Costa Rica’s territorial sovereignty have been considered previously.
Accordingly, the Court will confine its analysis to ascertaining whether Nicaragua’s dredging activities
in the Lower San Juan carried a risk of significant transboundary harm. The principal risk cited by Costa
Rica was the potential adverse impact of those dredging activities on the flow of the Colorado River,
which could also adversely affect Costa Rica’s wetland.
In 2006, Nicaragua conducted a study of the impact that the dredging programme would have on its
own environment, which also stated that the programme would not have a significant impact on the
flow of the Colorado River.
This conclusion was later confirmed by both Parties’ experts. Having examined the evidence in the case
file, including the reports submitted and testimony given by experts called by both Parties, the Court
finds that the dredging programme planned in 2006 was not such as to give rise to a risk of significant
transboundary harm, either with respect to the flow of the Colorado River or to Costa Rica’s wetland.
In light of the absence of risk of significant transboundary harm, Nicaragua was not required to carry out
an environmental impact assessment.

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San Juan case

In its Application, Costa Rica alleged in particular that:

Costa Rica alleged that:

As the Court held in the Pulp Mills case,

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