Introduction
Certain Activities Carried Out by Nicaragua in the Border (Costa Rica v. Nicaragua) case involves a dispute in which Costa Rica applied for the International Court of Justice (ICJ) in order to solve it. This case concerns issues of sovereignty over a disputed territory along the San Juan River and allegations of environmental damage caused by Nicaragua.
The case that is going to be the center of this case-note represents a landmark since it contributed to the development of international environmental law, particularly when it comes to transboundary environmental harm. In this sense, the issues addressed by the ICJ are related to State accountability for environmetal harm, in which the ICJ identified how States can be held accountable when they breach their international obligation, among other issues.
The structure of this case-note is divided into different sections that have the intent to describe the factual and legal background, the legal reasoning of the ICJ, and a critical analysis. For the purpose of this paper, main focus is going to be given to the aspects of that deal with environmental international law.
The Factual Background
On the 18 of November 2010, Costa Rica instituted proceedings against Nicaragua[1] before the ICJ, alleging that the latter had violated Costa Rica’s sovereignty and international obligations through various conducts. These included the dredging of the San Juan River, the construction of artificial channels (hereinafter referred as caños) in a long disputed territory, and the establishment of a military presence in the area.[2]
Costa Rica claimed that the actions adopted by Nicaragua contributed to significant environmental damage to its wetlands and fragile ecosystems and that raises concerns over the long-term ecological consequences. The State also claimed that the dredging of the San Juan River could potentially affect the flow of the Colorado River, which could potentially affect the Costa Rica’s wetlands.[3]
Costa Rica claimed that Nicaragua had failed to conduct an Environmental Impact Assessment (EIA) and did not give any notice before adopting the conduct. In order to prevent further damage, Costa Rica requested provisional measures on the same day, such as the cessation of Nicaragua’s already mentioned activities.
On the other hand, Nicaragua denied violations of Costa Rica’s sovereignty, arguing that the actions conducted were done so in its sovereign territory, and as part of efforts to maintain and improve navigability of the San Juan River. In this sense, Nicaragua defended that it did not have an obligation to conduct an EIA. Nicaragua also held that the dredging activity was sustainable and did not cause transboundary environmental harm.[4]
Nicaragua also initiated a counterclaim against Costa Rica, which lead to the Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) case. Nicaragua alleged that a construction of a road along the San Juan River, by Costa Rica caused substantial environmental damage, such as sedimentations and harm of the ecosystem of the river.[5]
The Legal Background
The Costa Rica v. Nicaragua case involves several relevant legal questions regarding territorial sovereignty, environmental law and Sate responsibility.
During Costa Rica’s claims against Nicaragua, the State invoked the 1858 Treaty of Limits to address the issue regarding territorial sovereignty. This treaty determines and regulates the rights related to the territorial boundaries of the two States.[6]
With regards to the issues related to environmental law, Costa Rica invoked certain customary principles, such as the obligation to conduct an EIA, which corresponds to an obligation under general international law previously addressed by the ICJ in the Pulp Mills on the River Uruguay (Argentina v. Uruguay)[7] case, and the duty to notify and consult.[8]
Finally, when it comes to State responsibility, Costa Rica claimed that Nicaragua had breached certain obligations under international law, such as the no-harm principle, in which the States have to abstain from carrying out activities within their territory that cause damage to the environment of other States. In this regard, Principle 21 of the Stockholm Declaration[9] and Principle 2 of the Rio Declaration[10], that establishes the responsibility for States to ensure that their own activities do not interfere with another State, are relevant in analysing this claim.
Notwithstanding, Nicaragua denied the claims held by Costa Rica, such as that the claim that the latter had territorial sovereignty and that it did not have an obligation to conduct a EIA, among the others.
The Legal Reasoning
In order to preserve both party’s rights and to avoid irreversible harm pending the judgement, the ICJ ordered certain provisional measures, namely that Nicaragua should refrain from actions that are likely to affect the environment, and that Costa Rica was allowed to send civilian personnel in order to monitor the environment in the area.
Regarding the determination of territorial sovereignty over the disputed territory, the ICJ invoked both Article II and IV to which the interpretation led to the understanding that Costa Rica’s rights of navigation[11] are linked with sovereignty over the right bank, which has clearly been attributed to Costa Rica as far as the mouth of the river. So, in this regard, the ICJ concluded that Costa Rica has sovereign rights over the disputed territory.[12]
Due to Nicaragua’s breach of Costa Rica’s sovereignty, the ICJ decided that it is responsible for the activities it carries out and the transboundary harm associated with it.[13]
In relation to the obligation to conduct an EIA, the ICJ referred the Pulp Mills case[14], saying that the principle generally applies to situations that might raise significant environmental harm, in this sense, a State has an obligation to conduct a due diligence in order to ensure that there is no risk of significant transboundary environmental harm. The ICJ also mentioned that an EIA must be conducted taking into consideration the specific aspects of each case, i.e. case-by-case analysis. However, in this case, the ICJ understood that there was no obligation to conduct an EIA, since the general requisite to its application is not verified, i.e., the action did not raise, beforehand, a risk of significant transboundary environmental harm.[15]
When it comes to the obligation to notify and consult, the ICJ not only addressed the rules contained in the 1858 Treaty of Limits, but also addressed rules contained in other legal frameworks[16] to which it reached the interpretation that there was no obligation to do so, since Nicaragua did not breach any procedural obligations under these international treaties.
Critical Assessment of the Case
The Costa Rica v. Nicaragua case represents an important precedent in terms of international environmental law, specifically when it comes to the clarification and reinforcement of principles that surround transboundary environmental harm, procedural obligations and State accountability.
Even though the ICJ ruled against the requirement for Nicaragua to conduct an EIA, or notifying Costa Rica, the reference to the Pulp Mills case decision marks the ongoing evolution of EIA´s as customary international law when it comes to activities that pose a risk of significant transboundary environmental harm.[17] However, this could be understood as a strict restriction, which means that an EIA´s could potentially not be enforced in less serious situations. This can pose a problem in the long-term, especially considering the amount of cases where the risk might not be apparently significant, but it is there, and the joining of all those cases could have significant negative environmental impacts. In this sense, the ICJ´s decisions represents a cautionary approach in imposing certain obligations.
The conduct of an EIA[18] has a preventive purpose, therefore it might not be a good sign that it is being seen more as a reactive measure. In this context, EIA should be conducted as a precautionary measure to protect the environment[19] and not as a reactive measure to assess the damages.
Having referred this, it is also relevant to mention the voluntary commitment of Nicaragua to conduct new EIA and notifying and consulting Costa Rica in future dredgings[20], since it represents a pleasant shift to an increased cooperation between States when it comes to preventing environmental damages.
The landmark development of this case is, without a doubt, the ICJ’s decision in imposing a responsibility to Nicaragua to compensate for the environmental damage it caused. It represents an important development of international environmental law specially because it concerns transboundary environmental harm. In it’s 2018 decision, the ICJ has quantified the amount of compensation relative to the damage, which also constitutes a landmark decision since it gives a more tangible consequence to infringements of environmental international law.
In general, Costa Rica v. Nicaragua contributes to the ongoing growth of international environmental law case-law and it brings to a certain balance between State sovereignty and the requirements for a certain alignment with international environmental rules.
In short, this is a landmark case when it comes to the question of State responsibility for transboundary environmental damage, however it falls short when it comes to certain obligations such as the EIA, that is an important mechanism to prevent situations such as the need for compensation due to environmental damage.
Conclusion
The ICJ decided that certain activities carried out by Nicaragua constituted a breach to which it imposed the obligation to repair the damage caused by its unlawful activities.[21]
Having come to this conclusion, the ICJ gave the parties 12 months to work together in the determination of the amount that should be provided as compensation, however, given that the parties did not reach an agreement, Costa Rica applied to the ICJ in order for it to decide, which led to the 2018 decision, that also marked a relevant precedent when it comes to accountability for environmental harm.[22]
To conclude, the Certain Activities Carried Out by Nicaragua in the Border Area case has significantly contributed to the further development of international environmental law for enforcing State responsibility for transboundary environmental damage. However, while this represents a landmark achievement, there are still questions that need further development, such as precautionary measures like the EIA.
[1] Paragraph 1 and 2 of the 2015 Judgement of the International Court of Justice (Costa Rica v. Nicaragua).
[2] Paragraphs 1-52 of the Summary of the 2015 Judgement of the International Court of Justice (Costa Rica v. Nicaragua).
[3] Paragraphs 101-112 of the Summary of the 2015 Judgement of the International Court of Justice (Costa Rica v. Nicaragua).
[4] Paragraphs 56-64 of the Summary of the 2015 Judgement of the International Court of Justice (Costa Rica v. Nicaragua).
[5] Paragraphs 1-52 of the Summary of the 2015 Judgement of the International Court of Justice (Costa Rica v. Nicaragua).
[6] Treaty of Limits Between Costa Rica and Nicaragua (1858). Available at: https://jusmundi.com/en/document/treaty/en-treaty-of-limits-between-costa-rica-and-nicaragua-1858-canas-jerez-treaty-1858-thursday-15th-april-1858
[7] Argentina v. Uruguay, Pulp Mills on the River Uruguay. Available at: https://www.icj-cij.org/case/135
[8] Paragraphs 101-112 of the Summary of the 2015 Judgement of the International Court of Justice (Costa Rica v. Nicaragua).
[9] Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration, 1972). Available at: https://docenti.unimc.it/elisa.scotti/teaching/2023/28955/files/2.a-stockholm-declaration
[10] Rio Declaration on Environment and Development (Rio Declaration, 1992). Available at: https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF. 151_26_Vol.I_Declaration.pdf
[11] Costa Rica v. Nicaragua, Dispute Regarding Navigational and Related Rights, 2009.
[12] Paragraphs 65-99 of the Summary of the 2015 Judgement of the International Court of Justice (Costa Rica v. Nicaragua).
[13] Paragraphs 113-120 of the Summary of the 2015 Judgement of the International Court of Justice (Costa Rica v. Nicaragua).
[14] See, supra, page 4.
[15] Paragraphs 101-112 of the Summary of the 2015 Judgement of the International Court of Justice (Costa Rica v. Nicaragua).
[16] Such as: “the Convention on Wetlands of International Importance especially as Waterfowl Habitat, signed at Ramsar on 2 February 1971 (hereinafter the “Ramsar Convention”), and the Convention for the Conservation of Biodiversity and Protection of Priority Wildlife Areas in Central America”, paragraphs 106-111 of the 2015 Costa Rica v. Nicaragua Judgement of the International Court of Justice.
[17] See, supra, page 6.
[18] For further information on EIA, “Understanding EIA”, Centre for Science and Environment. Available at: https://www.cseindia.org/understanding-eia-383
[19] Principle 15 of the Rio Declaration on Environment and Development (Rio Declaration, 1992). Available at: https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF. 151_26_Vol.I_Declaration.pdf
[20] Paragraph 112 of the Summary of the 2015 Judgement of the International Court of Justice (Costa Rica v. Nicaragua).
[21] Paragraphs 65-99, of the Summary of the 2015 Judgement of the International Court of Justice (Costa Rica v. Nicaragua).
[22] Horrison, J., “Significant International Environmental Law Cases: 2017–18”. Available at: https://academic.oup.com/jel/article-abstract/30/3/527/5094965
