ICJ decides on provisional measures in Costa Rica-Nicaragua dispute
(9 March 2011)
On 8 March 2011, the International Court of Justice (ICJ) gave its decision on provisional measures concerning the activity of Nicaraguan officials in territory claimed by Costa Rica. Costa Rica has argued that from August through November 2010 Nicaraguan officials undertook tree felling and dredging operations in an effort to cut a new channel of the San Juan river and a canal across the neck of a headland known as Isla Portillos or Harbour Head near the Caribbean coastline. The Costa Rica-Nicaragua boundary follows the right bank of the San Juan river and Costa Rica argued that this new canal was being constructed on its territory. Costa Rica also objected to Nicaraguan dredging operations in the San Juan river which it claimed were part of the new canal project, as well as the continued presence of Nicaraguan troops on Isla Portillos/Harbour Head.
Provisional measures are intended to preserve the rights of two states prior to the decision of the ICJ in a defined case. The proceedings for provisional measures are much shorter than for normal case proceedings and they are intended to compel an immediate suspension of offending activities.
The ICJ agreed to one of the provisional measures requested by Costa Rica, calling on Nicaragua to withdraw its troops or any personnel engaged in building the disputed canal, felling trees or dumping sediment from the disputed area. Nicaragua had already indicated during proceedings that the canal work, dredging and tree felling operations had finished which was recognised by the ICJ. In addition, the ICJ further indicated that neither state should send any civilian, military or police personnel into the disputed area until the boundary dispute is resolved. An exception was made for civilian officials from Costa Rica to ensure protection of the wetlands ecology.
More controversially, the ICJ chose not to grant provisional measures requested by Costa Rica to prevent Nicaragua from undertaken dredging operations in the main San Juan river adjacent to the disputed area. Citing a report prepared by the UN Institute for Training and Research and UNOSAT that analysed recent satellite imagery of Nicaragua’s operations, Costa Rica argued that Nicaragua was attempting to divert the flow of the San Juan river into the newly constructed river channel cutting across the neck of Isla Portillos/Harbour Head and into Laguna Los Portillos. The ICJ held that it could not be concluded from the evidence presented that the dredging “is creating a risk of irreparable prejudice to Costa Rica’s environment” or that any such risk of irreparable damage was imminent; the two legal parameters for indicating provisional measures. Since the boundary follows the Costa Rican bank of the San Juan river, Nicaragua is entitled to undertake works within the river as long as they do not adversely affect Costa Rica’s territory. The ICJ concluded its decision by calling on both parties to refrain from any provocative acts that may perpetuate the dispute. It is unclear whether or not Nicaragua’s dredging activity would constitute such an act.
In its 18 November 2010 application to the ICJ, Costa Rica submitted its request for provisional measures alongside a request for normal proceedings against Nicaragua. The case now moves to the normal proceedings phase whereby Costa Rica has asked the ICJ to rule that Nicaragua’s activities have violated its territorial sovereignty, breaching several bilateral and multilateral agreements, and to determine reparations for any damage caused. In its decision on provisional measures, the ICJ did state that Costa Rica’s territorial claim to Isla Portillos/Harbour Head “is plausible” but indicated that Nicaragua had not directly requested a ruling on the plausibility of its claim. In the provisional measures decision the ICJ could have implied that Nicaragua’s activities are causing direct harm to Costa Rican territory, as Costa Rica had requested. However, this would have recognised Costa Rica’s sovereignty over Isla Portillos/Harbour Head. While not stated directly, the ICJ has recognised that there are competing territorial claims which will be addressed during the normal proceedings. The ICJ has yet to set a timetable for these proceedings.
Sources: International Court of Justice 'Certain activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) Request for indication of provsional measures' Order of 8 March 2011; International Court of Justice 'Costa Rica institutes proceedings against Nicaragua and requests the Court to indicate provisional measures' Press Release No. 2010/38, 19 November 2010; 'Application of the Republic of Costa Rica instituting proceedings' 18 November 2010.