                               INTERNATIONAL COURT OF JUSTICE

                                REPORTS OF JUDGMENTS,
                             ADVISORY OPINIONS AND ORDERS

               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)

                    REQUEST PRESENTED BY COSTA RICA FOR THE INDICATION
                               OF NEW PROVISIONAL MEASURES

                               ORDER OF 22 NOVEMBER 2013

                                      2013
                               COUR INTERNATIONALE DE JUSTICE

                                  RECUEIL DES ARRÊTS,
                           AVIS CONSULTATIFS ET ORDONNANCES

              CERTAINES ACTIVITÉS MENÉES PAR LE NICARAGUA
                      DANS LA RÉGION FRONTALIÈRE
                                 (COSTA RICA c. NICARAGUA)

                    CONSTRUCTION D’UNE ROUTE AU COSTA RICA
                          LE LONG DU FLEUVE SAN JUAN
                                 (NICARAGUA c. COSTA RICA)

                      DEMANDE EN INDICATION DE NOUVELLES MESURES
                       CONSERVATOIRES PRÉSENTÉE PAR LE COSTA RICA

                            ORDONNANCE DU 22 NOVEMBRE 2013

5 Ord 1051.indb 1                                                        24/06/14 15:58

                                                  Official citation :
                          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),
                                Provisional Measures, Order of 22 November 2013,
                                             I.C.J. Reports 2013, p. 354

                                             Mode officiel de citation :
                        Certaines activités menées par le Nicaragua dans la région frontalière
                        (Costa Rica c. Nicaragua) ; Construction d’une route au Costa Rica
                               le long du fleuve San Juan (Nicaragua c. Costa Rica),
                             mesures conservatoires, ordonnance du 22 novembre 2013,
                                              C.I.J. Recueil 2013, p. 354

                                                                                1051
                                                                  Sales number
                    ISSN 0074-4441                                No de vente:
                    ISBN 978-92-1-071166-1

5 Ord 1051.indb 2                                                                                24/06/14 15:58

                                                                22 NOVEMBER 2013

                                                                       ORDER

                    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)

                       REQUEST PRESENTED BY COSTA RICA FOR THE INDICATION
                                 OF NEW PROVISIONAL MEASURES

                    CERTAINES ACTIVITÉS MENÉES PAR LE NICARAGUA
                            DANS LA RÉGION FRONTALIÈRE
                               (COSTA RICA c. NICARAGUA)

                      CONSTRUCTION D’UNE ROUTE AU COSTA RICA
                            LE LONG DU FLEUVE SAN JUAN
                               (NICARAGUA c. COSTA RICA)

                         DEMANDE EN INDICATION DE NOUVELLES MESURES
                          CONSERVATOIRES PRÉSENTÉE PAR LE COSTA RICA

                                                               22 NOVEMBRE 2013

                                                                 ORDONNANCE

5 Ord 1051.indb 3                                                                  24/06/14 15:58

                    354

                                 INTERNATIONAL COURT OF JUSTICE

                                                YEAR 2013
         2013
    22 November
    General List
   Nos. 151 and 152                          22 November 2013

           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)

                    REQUEST PRESENTED BY COSTA RICA FOR THE INDICATION
                               OF NEW PROVISIONAL MEASURES

                                                  ORDER

                    Present : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges
                               Owada, Keith, Bennouna, Skotnikov, Cançado Trindade,
                               Yusuf, Greenwood, Xue, Donoghue, Gaja, Sebutinde,
                               Bhandari ; Judges ad hoc Guillaume, Dugard ; Registrar
                               Couvreur.

                      The International Court of Justice,
                      Composed as above,
                      After deliberation,
                      Having regard to Articles 41 and 48 of the Statute of the Court and
                    Articles 73, 74 and 75 of the Rules of Court,

                    4

5 Ord 1051.indb 4                                                                           24/06/14 15:58

                    355 	 certain activities ; construction of a road (order 22 XI 13)

                        Makes the following Order :
                        Whereas :
                      1. By an Application filed in the Registry of the Court on 18 Novem-
                    ber 2010, the Government of the Republic of Costa Rica (hereinafter
                    “Costa Rica”) instituted proceedings against the Government of the
                    Republic of Nicaragua (hereinafter “Nicaragua”) for “the incursion into,
                    occupation of and use by Nicaragua’s army of Costa Rican territory”, as
                    well as for “serious damage inflicted to its protected rainforests and wet-
                    lands”, “damage intended [by Nicaragua] to the Colorado River” and
                    “the dredging and canalization activities being carried out by Nicaragua
                    on the San Juan River” (case concerning Certain Activities Carried Out by
                    Nicaragua in the Border Area (Costa Rica v. Nicaragua), hereinafter the
                    “Costa Rica v. Nicaragua case”). According to Costa Rica, Nicaragua’s
                    actions included the construction of a canal (referred to in Spanish as
                    “caño”) across Costa Rican territory from the San Juan River to Laguna
                    los Portillos.
                      2. On 18 November 2010, having filed its Application, Costa Rica also
                    submitted a request for the indication of provisional measures, under
                    Article 41 of the Statute of the Court and Articles 73 to 75 of the Rules
                    of Court.
                      3. By an Order of 8 March 2011 made in that case (hereinafter the
                    “Order of 8 March 2011”), the Court indicated the following provisional
                    measures to both Parties :
                         “(1) Each Party shall refrain from sending to, or maintaining in the
                              disputed territory, including the caño, any personnel, whether
                              civilian, police or security ;
                          (2) Notwithstanding point (1) above, Costa Rica may dispatch civil-
                              ian personnel charged with the protection of the environment to
                              the disputed territory, including the caño, but only in so far as it
                              is necessary to avoid irreparable prejudice being caused to the part
                              of the wetland where that territory is situated ; Costa Rica shall
                              consult with the Secretariat of the Ramsar Convention in regard
                              to these actions, give Nicaragua prior notice of them and use its
                              best endeavours to find common solutions with Nicaragua in this
                              respect ;
                          (3) Each Party shall refrain from any action which might aggravate
                              or extend the dispute before the Court or make it more difficult
                              to resolve ;
                          (4) Each Party shall inform the Court as to its compliance with the
                              above provisional measures.” (Certain Activities Carried Out by
                              Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provi‑
                              sional Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I),
                              pp. 27‑28, para. 86.)
                      4. By an Order of 5 April 2011, the Court fixed 5 December 2011 and
                    6 August 2012 as the respective time‑limits for the filing in the case of a

                    5

5 Ord 1051.indb 6                                                                                24/06/14 15:58

                    356 	 certain activities ; construction of a road (order 22 XI 13)

                    Memorial by Costa Rica and a Counter‑Memorial by Nicaragua. The
                    Memorial and the Counter‑Memorial were filed within the time‑limits
                    thus prescribed.
                       5. At a meeting held by the President of the Court with the representa-
                    tives of the Parties on 19 September 2012, the Parties agreed not to
                    request the Court’s authorization to file a Reply and a Rejoinder in the
                    Costa Rica v. Nicaragua case.
                       6. By an Application filed with the Registry of the Court on 22 Decem-
                    ber 2011, Nicaragua instituted proceedings against Costa Rica for “viola-
                    tions of Nicaraguan sovereignty and major environmental damages on its
                    territory”, contending, in particular, that Costa Rica was undertaking
                    “major works . . . a few metres from the border area” between the two
                    countries along the San Juan River in the context of the construction of
                    a new road (case concerning the Construction of a Road in Costa Rica
                    along the San Juan River (Nicaragua v. Costa Rica), hereinafter the
                    “Nicaragua v. Costa Rica case”). Further, Nicaragua, in its Application,
                    claimed that the new road caused ongoing damage to the river, on a large
                    scale, “by the impetus it inevitably gives to agricultural and industrial
                    activities”.
                       7. By an Order of 23 January 2012, the Court fixed 19 December 2012
                    and 19 December 2013 as the respective time‑limits for the filing of a
                    Memorial by Nicaragua and a Counter‑Memorial by Costa Rica in this
                    latter case. The Memorial was filed within the time‑limit thus prescribed.

                       8. At the time of the filing of its Memorial in the Nicaragua v. Costa
                    Rica case, Nicaragua requested the Court, inter alia, to “decide proprio
                    motu whether the circumstances of the case require[d] the indication of
                    provisional measures”. By letters dated 11 March 2013, the Registrar
                    informed the Parties that the Court was of the view that the circumstances
                    of the case, as they presented themselves to it at that time, were not such
                    as to require the exercise of its power under Article 75 of the Rules of
                    Court to indicate provisional measures proprio motu.
                       9. By two separate Orders dated 17 April 2013, the Court joined the
                    proceedings in the Costa Rica v. Nicaragua and Nicaragua v. Costa Rica
                    cases.
                       10. On 23 May 2013, Costa Rica, with reference to Article 41 of the
                    Statute of the Court and Article 76 of the Rules of Court, filed with the
                    Registry a request for the modification of the Order of 8 March 2011 (see
                    paragraph 3 above). In its written observations thereon, Nicaragua asked
                    the Court to reject Costa Rica’s request, while in its turn requesting the
                    Court to modify or adapt the Order of 8 March 2011 on the basis of Arti-
                    cle 76 of the Rules of Court.
                       11. By an Order of 16 July 2013, the Court found that the circum-
                    stances, as they then presented themselves to the Court, were not such as
                    to require the exercise of its power to modify the measures indicated in the
                    Order of 8 March 2011. The Court however reaffirmed the provisional
                    measures indicated on 8 March 2011, in particular the requirement that

                    6

5 Ord 1051.indb 8                                                                                24/06/14 15:58

                     357 	 certain activities ; construction of a road (order 22 XI 13)

                     the Parties “shall refrain from any action which might aggravate or extend
                     the dispute before the Court or make it more difficult to resolve”.

                        12. On 24 September 2013, Costa Rica, with reference to Article 41 of
                     the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court,
                     filed with the Registry a request for the indication of new provisional
                     measures in the Costa Rica v. Nicaragua case, dated 23 September 2013.
                     Costa Rica specified that it did not seek the modification of the Order of
                     8 March 2011, but rather that its request was “an independent [one] based
                     on new facts”.
                        13. In its request, Costa Rica stated that, since the Court’s Order of
                     16 July 2013 on the Parties’ requests to modify the measures indicated in
                     its Order of 8 March 2011, it had found out about “new and grave activ-
                     ities by Nicaragua in the disputed territory”, through satellite imagery of
                     that area. In particular, Costa Rica contended that Nicaragua had com-
                     menced construction of two new artificial caños in the disputed territory.
                     Both caños were located, according to the Applicant, in the northern part
                     of the disputed territory, the larger of the two being that to the east (here-
                     inafter the “eastern caño”).

                        14. Costa Rica further stated in its request that, following its discovery
                     of these two new caños, it had “immediately protested to Nicaragua” by
                     letter dated 16 September 2013. In that letter, it had requested that Nica-
                     ragua at once cease all construction activities in the disputed territory,
                     provide an explanation regarding its activities and the presence of Nica-
                     raguan equipment and personnel in the disputed territory, and keep the
                     disputed territory clear of any persons coming from its territory. Costa
                     Rica asserted that Nicaragua, in a letter in reply dated 18 September 2013,
                     had “refused to immediately cease its construction activities”, even “going
                     so far as to deny the existence of the new artificial caños in the face of
                     incon[tro]vertible evidence in satellite images”.

                       15. At the end of its request for the indication of new provisional mea-
                     sures, Costa Rica asked the Court :
                         “as a matter of urgency to order the following provisional measures
                         so as to prevent further breaches of Costa Rica’s territorial integrity
                         and further irreparable harm to the territory in question, pending the
                         determination of [the] case on the merits :

                         (1) the immediate and unconditional suspension of any work by way
                             of dredging or otherwise in the disputed territory, and specifically
                             the cessation of work of any kind on the two further artificial
                             caños in the disputed territory, as shown in the satellite images
                             attached as Attachment PM‑8 [to the request] ;
                         (2) that Nicaragua immediately withdraw any personnel, infrastruc-
                             ture (including lodging tents) and equipment (including dredgers)

                     7

5 Ord 1051.indb 10                                                                                24/06/14 15:58

                     358 	 certain activities ; construction of a road (order 22 XI 13)

                             introduced by it, or by any persons under its jurisdiction or com-
                             ing from its territory, from the disputed territory ;

                         (3) that Costa Rica be permitted to undertake remediation works in
                             the disputed territory on the two new artificial caños and the sur-
                             rounding areas, to the extent necessary to prevent irreparable
                             prejudice being caused to the disputed territory ; and

                         (4) that each Party shall immediately inform the Court as to its com-
                             pliance with the above provisional measures not later than one
                             week of the issuance of the Order”.

                     Costa Rica added that it “reserve[d] its right to amend [the] request and
                     the measures sought in light of further information which [might] be
                     received as to Nicaragua’s unilateral plans and actions”.

                       16. The Registrar immediately communicated a copy of the said
                     request to the Government of Nicaragua. The registrar also notified the
                     Secretary‑General of the United Nations of the filing of the request for
                     the indication of new provisional measures by Costa Rica.
                       17. At the public hearings held on 14, 15, 16 and 17 October 2013, in
                     accordance with Article 74, paragraph 3, of the Rules of Court, oral
                     observations on the request for the indication of new provisional meas-
                     ures were presented by :
                     On behalf of Costa Rica : H.E. Mr. Edgar Ugalde Alvarez, Agent,
                                                   Mr. Sergio Ugalde, Co‑Agent,
                                                   Mr. Samuel Wordsworth,
                                                   Mr. James Crawford,
                                                   Mr. Marcelo Kohen.
                     On behalf of Nicaragua :	H.E. Mr. Carlos José Argüello Gómez, Agent,
                                                  Mr. Paul S. Reichler,
                                                  Mr. Stephen C. McCaffrey,
                                                  Mr. Alain Pellet.
                       18. During the hearings, questions were put by some Members of the
                     Court to Nicaragua, to which replies were given orally ; Costa Rica
                     availed itself of its right to comment orally on those replies.

                       19. At the end of its second round of oral observations, Costa Rica
                     asked the Court to indicate provisional measures in the same terms as
                     included in its request (see paragraph 15 above).

                        20. At the end of its second round of oral observations, Nicaragua
                     stated the following :
                           “In accordance with Article 60 of the Rules of Court and having
                         regard to the request for the indication of provisional measures of

                     8

5 Ord 1051.indb 12                                                                                24/06/14 15:58

                     359 	 certain activities ; construction of a road (order 22 XI 13)

                         the Republic of Costa Rica and its oral pleadings, the Republic of
                         Nicaragua respectfully submits that,
                           — for the reasons explained during these hearings and any other
                               reasons the Court might deem appropriate, the Republic of
                               Nicaragua asks the Court to dismiss the request for provisional
                               measures filed by the Republic of Costa Rica.”

                                                            *
                                                        *       *

                                            I. Prima Facie Jurisdiction

                        21. The Court may indicate provisional measures only if the provisions
                     relied on by the Applicant appear, prima facie, to afford a basis on which
                     its jurisdiction could be founded, but the Court need not satisfy itself in a
                     definitive manner that it has jurisdiction as regards the merits of the case
                     (see, for example, Questions relating to the Obligation to Prosecute or
                     Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May
                     2009, I.C.J. Reports 2009, p. 147, para. 40).
                        22. Costa Rica seeks to found the jurisdiction of the Court in this case
                     on Article XXXI of the American Treaty on Pacific Settlement signed at
                     Bogotá on 30 April 1948. In addition, Costa Rica seeks to found the
                     jurisdiction of the Court on the declaration it made on 20 February 1973
                     under Article 36, paragraph 2, of the Statute, as well as on the declaration
                     which Nicaragua made on 24 September 1929 (as amended on 23 Octo-
                     ber 2001) under Article 36 of the Statute of the Permanent Court of Inter-
                     national Justice and which is deemed, pursuant to Article 36, paragraph 5,
                     of the Statute of the present Court, for the period which it still has to run,
                     to be acceptance of the compulsory jurisdiction of this Court.
                        23. The Court recalls that, in its Order of 8 March 2011, it found that
                     “the instruments invoked by Costa Rica appear, prima facie, to afford a
                     basis on which the Court might have jurisdiction to rule on the merits,
                     enabling it to indicate provisional measures if it considers that the cir-
                     cumstances so require” (Certain Activities Carried Out by Nicaragua in
                     the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order
                     of 8 March 2011, I.C.J. Reports 2011 (I), p. 18, para. 52). Moreover, the
                     Court notes that, within the time‑limit set out in Article 79, paragraph 1,
                     of the Rules of Court, Nicaragua did not raise any objection to the juris-
                     diction of the Court. In these circumstances, the Court considers that it
                     may entertain the present request for the indication of new provisional
                     measures.

                                   II. The Rights whose Protection Is Sought
                                          and the Measures Requested

                       24. The power of the Court to indicate provisional measures under
                     Article 41 of the Statute has as its object the preservation of the respective

                     9

5 Ord 1051.indb 14                                                                                24/06/14 15:58

                     360     certain activities ; construction of a road (order 22 XI 13)

                     rights claimed by the parties in a case, pending its decision on the merits
                     thereof. It follows that the Court must be concerned to preserve by such
                     measures the rights which may subsequently be adjudged by it to belong
                     to either party. Therefore, the Court may exercise this power only if it is
                     satisfied that the rights asserted by the requesting party are at least plau-
                     sible (see, for example, Certain Activities Carried Out by Nicaragua in the
                     Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of
                     8 March 2011, I.C.J. Reports 2011 (I), p. 18, para. 53).

                        25. Moreover, a link must exist between the rights which form the sub-
                     ject of the proceedings before the Court on the merits of the case and the
                     provisional measures being sought (ibid., para. 54).
                        26. The rights which Costa Rica seeks to protect are the rights it claims
                     to sovereignty over the territory which it refers to as Isla Portillos, to ter-
                     ritorial integrity and its right to protect the environment in those areas
                     over which it is sovereign. These rights are at issue because Nicaragua,
                     for its part, contends that it holds the title to sovereignty over the north-
                     ern part of Isla Portillos, that is to say, the area identified as the “disputed
                     territory” in paragraph 55 of the Court’s Order of 8 March 2011.

                        27. At this stage of the proceedings, the Court does not need to settle
                     the Parties’ claims to sovereignty over the disputed territory and is not
                     called upon to determine definitively whether the rights which Costa Rica
                     wishes to see protected exist, or whether those which Nicaragua considers
                     itself to possess exist. For the purposes of considering the present request
                     for the indication of new provisional measures, the Court need only
                     decide whether the rights claimed by Costa Rica on the merits, and for
                     which it is seeking protection, are plausible.
                        28. As the Court stated in its Order of 8 March 2011, while “the pro-
                     visional measures it may indicate would not prejudge any title”, it appears
                     “that the title to sovereignty claimed by Costa Rica over the entirety of
                     Isla Portillos is plausible” (ibid., p. 19, para. 58). The Court sees no rea-
                     son to depart from this conclusion in the context of Costa Rica’s present
                     request. Moreover, to the extent that Costa Rica’s claimed title is plausi-
                     ble, the Court considers that any future environmental harm caused in
                     the disputed territory would infringe Costa Rica’s alleged territorial
                     rights. The Court therefore finds that the rights for which Costa Rica
                     seeks protection are plausible.

                        29. The Court now turns to the issue of the link between the rights
                     claimed and the provisional measures requested.
                        30. The first provisional measure requested by Costa Rica is aimed at
                     ensuring the immediate and unconditional suspension of dredging or
                     other activity, and specifically the cessation of work of any kind on the
                     two new caños in the disputed territory. In this regard, Costa Rica has
                     called the Court’s attention to the possible effect of the construction of

                     10

5 Ord 1051.indb 16                                                                                24/06/14 15:58

                     361    certain activities ; construction of a road (order 22 XI 13)

                     these two caños on the disputed territory and on the course of the San
                     Juan River. This construction could affect Costa Rica’s rights of sover-
                     eignty, as well as environmental rights connected thereto, to be adjudged
                     on the merits. Therefore, a link exists between Costa Rica’s claimed rights
                     and the first provisional measure being sought.

                        31. The second provisional measure requested by Costa Rica is that
                     Nicaragua immediately withdraw from the disputed territory any person-
                     nel, infrastructure (including lodging tents) and equipment (including
                     dredgers) introduced by it, or by any persons under its jurisdiction or
                     coming from its territory. In this regard, the Court considers that the
                     presence of Nicaraguan personnel, infrastructure and equipment on the
                     disputed territory would be likely to affect the rights of sovereignty which
                     might be adjudged on the merits to belong to Costa Rica. Therefore, a
                     link exists between Costa Rica’s claimed rights of sovereignty and the
                     second provisional measure being sought.

                        32. The third provisional measure sought by Costa Rica is aimed at
                     ensuring that Costa Rica be permitted to undertake remediation works in
                     the disputed territory on the two new caños and the surrounding areas, to
                     the extent necessary to prevent irreparable prejudice being caused to the
                     disputed territory. In the view of the Court, a link exists between Costa
                     Rica’s claimed rights of sovereignty over the disputed territory and the
                     third provisional measure sought.
                        33. The fourth provisional measure requested by Costa Rica is that
                     each Party shall inform the Court as to its compliance with any provi-
                     sional measures that may be indicated by the Court, not later than one
                     week from the issuance of the Order. This request, which supplements the
                     first three, does not aim to protect Costa Rica’s rights but rather seeks to
                     ensure compliance with any provisional measures indicated by the Court.
                     There is therefore no need to establish a link between Costa Rica’s
                     claimed rights and the fourth measure sought.

                                III. Risk of Irreparable Prejudice and Urgency

                       34. The Court, pursuant to Article 41 of its Statute, has the power to
                     indicate provisional measures when irreparable prejudice could be caused
                     to rights which are the subject of the judicial proceedings (see, for exam-
                     ple, Certain Activities Carried Out by Nicaragua in the Border Area (Costa
                     Rica v. Nicaragua), Provisional Measures, Order of 8 March 2011,
                     I.C.J. Reports 2011 (I), p. 21, para. 63).
                       35. The power of the Court to indicate provisional measures will be
                     exercised only if there is urgency, in the sense that there is a real and
                     imminent risk that irreparable prejudice will be caused to the rights in

                     11

5 Ord 1051.indb 18                                                                                24/06/14 15:58

                     362 	 certain activities ; construction of a road (order 22 XI 13)

                     dispute before the Court has given its final decision (I.C.J. Reports
                     2011 (I), pp. 21‑22, para. 64). The Court must therefore consider whether
                     such a risk exists in these proceedings.

                                                         *   *
                        36. Costa Rica states that Nicaragua, through its construction and
                     ongoing dredging of the caños, has sought unilaterally to modify, to its
                     own benefit, the location and configuration of the San Juan River.
                     According to Costa Rica these activities of Nicaragua create a real and
                     imminent risk of irreparable prejudice to its rights. In support of its argu-
                     ments, Costa Rica submitted two expert reports.
                        In that context, Costa Rica refers, in particular, to a trench on the
                     beach to the north of the eastern caño, already visible in an aerial photo-
                     graph taken on 18 September 2013, arguing that Nicaragua has been
                     intent on artificially cutting across the beach with this trench, thus con-
                     necting the eastern caño to the Caribbean Sea in an attempt to create a
                     new course for the San Juan River. It submits that, between 18 Septem-
                     ber 2013 and 5 October 2013, the works on the beach progressed to such
                     an extent that the distance between the end of the trench and the sea was
                     reduced to only seven metres.
                        Moreover, Costa Rica maintains that, during the same period, a new
                     entrance to the eastern caño from the San Juan River was created.

                        37. Costa Rica argues that, although the dredging operations have
                     been carried out under the direction of an individual, Mr. Pastora, Nica-
                     ragua is responsible for these works because Mr. Pastora was working
                     with the National Port Authority and the Nicaraguan military was aware
                     of his activities. According to Costa Rica, Mr. Pastora was appointed by
                     the President of Nicaragua and his activities were approved by the Nica-
                     raguan Ministry of Environmental and Natural Resources. Moreover,
                     Costa Rica adds that Mr. Pastora himself said that he was conducting the
                     operations under the instructions of the Nicaraguan Government.
                        38. Costa Rica further asserts that the presence of Nicaraguan nation-
                     als in the disputed territory, including members of Nicaragua’s armed
                     forces, risks causing further irreparable prejudice to Costa Rica’s rights
                     which are the subject of the present case. Costa Rica contends that Nica-
                     ragua’s encampment near the eastern caño is a military encampment
                     located in the disputed territory, i.e., in the territory between the right
                     bank of the San Juan River and the Harbor Head Lagoon.

                        39. Finally, Costa Rica argues that remedial activities are necessary to
                     avoid the risk of a shift in the San Juan River. It maintains that, if the
                     course of the river were altered, it would be extremely difficult, perhaps
                     impossible, to shift it back through civil engineering works, and that any
                     such works would, in any event, be likely to cause environmental damage.
                     It affirms that there is urgency because the rainy season is beginning, dur-

                     12

5 Ord 1051.indb 20                                                                                24/06/14 15:58

                     363 	 certain activities ; construction of a road (order 22 XI 13)

                     ing which the river flow will be at its highest, causing erosion and a poten-
                     tial switch in the alignment of the river from its natural course. According
                     to Costa Rica, the works on the eastern caño are so advanced that there
                     is a risk of a diversion of the course of the San Juan River. In addition to
                     the risk presented by natural forces, Costa Rica refers to the risk of the
                     San Juan River being diverted if Nicaragua should continue its dredging
                     operations or proceed to enlarge further the trench next to the eastern
                     caño.

                                                          *
                        40. Nicaragua asserts that the two expert reports provided by Costa
                     Rica both concluded that the course of the San Juan River could be
                     altered only if the digging of the trench were to continue so as to connect
                     the eastern caño to the sea. According to Nicaragua, all of Costa Rica’s
                     claims concerning irreparable prejudice are predicated on the assumption
                     that the work on the caños will continue and result in the breaching of the
                     barrier between the eastern caño and the Caribbean Sea. Nicaragua
                     acknowledges that the trench has been dug next to the eastern caño, and
                     that it could be extended seawards without significant effort. However,
                     Nicaragua underlines the fact that, pursuant to instructions issued by the
                     President of Nicaragua, Mr. Daniel Ortega, on 21 September 2013, all
                     work on the caños and the beach, including work on the trench, has
                     ceased. Although Nicaragua does not deny that dredging activities have
                     occurred prior to this date, it argues that since those activities have now
                     ceased and will not resume, there is no real and imminent risk that irrep-
                     arable prejudice will be caused to Costa Rica’s claimed rights before the
                     Court has given its final decision.
                        With respect to the new entrance to the eastern caño which Costa Rica
                     claims is visible on the image of 5 October 2013, Nicaragua argues that,
                     if such a new entry does exist, it is miniscule and not of a size likely to
                     divert a sufficient flow of the river and to trigger the scouring of the caño
                     or carving of a new route to the sea.

                       Regarding the trench, which appears enlarged on the image of 5 Octo-
                     ber 2013, Nicaragua argues that the danger claimed by Costa Rica would
                     only become real if the trench were completed.
                       41. Nicaragua maintains that it did not send Mr. Pastora to the dis-
                     puted territory or authorize him to conduct dredging there, and that it
                     became aware of his activities only on 18 September 2013. It acknowledges
                     that Mr. Pastora was observed by its military but states that those who
                     observed him may have assumed that he was authorized to be in the area.
                     According to Nicaragua, any responsibility it might have for Mr. Pasto-
                     ra’s actions cannot be determined at the provisional measures stage.
                       42. Referring to the presence of personnel and equipment in the dis-
                     puted territory, Nicaragua points out that, as soon as it verified that there

                     13

5 Ord 1051.indb 22                                                                                24/06/14 15:58

                     364 	 certain activities ; construction of a road (order 22 XI 13)

                     had been an unauthorized entry into the disputed territory, Presi-
                     dent Ortega, on 21 September 2013, gave an instruction for the immedi-
                     ate withdrawal of all personnel, infrastructure and equipment, and that
                     all such personnel, infrastructure and equipment were immediately
                     removed in accordance with this instruction. Moreover, Nicaragua argues
                     that it has the right to station troops, or anyone else, on what it describes
                     as a sand bank running along the beach in front of the disputed territory.
                     In response to a question from a Member of the Court, Nicaragua states
                     that it understands the beach north of the two new caños to be “the sand
                     bank, or island, that has always been considered part of Nicaraguan
                     undisputed territory”.
                        43. Nicaragua contends that remediation works are not necessary
                     since, even in the absence of any such works, the silting from the San
                     Juan River would find its way into the caños and eventually fill them with
                     mud, to the point where they will dry up. Nicaragua states, moreover,
                     that it is willing to fill the trench on the beach back up again, and that this
                     could be completed within a few days.

                                                         *  *
                        44. The Court observes that, since its Order of 16 July 2013 on the
                     requests for the modification of the Order of 8 March 2011 indicating
                     provisional measures (see paragraph 11 above), there has been a change
                     in the situation in the disputed territory. This territory was identified by
                     the Court in its Order of 8 March 2011 as follows : “the northern part of
                     Isla Portillos, that is to say, the area of wetland of some 3 square kilome-
                     tres between the right bank of the [2011] disputed caño, the right bank of
                     the San Juan River up to its mouth at the Caribbean Sea and the Harbor
                     Head Lagoon” (Certain Activities Carried Out by Nicaragua in the Border
                     Area (Costa Rica v. Nicaragua), Provisional Measures, Order of 8 March
                     2011, I.C.J. Reports 2011 (I), p. 19, para. 55). The evidence submitted to
                     the Court shows that two new caños have been built in that territory. The
                     satellite images submitted by Costa Rica demonstrate that while, on
                     30 June 2013, there was no evidence of the existence of any caños in the
                     northern part of the disputed territory, on 5 September 2013, two new
                     caños were clearly visible. Furthermore, the photograph of 18 Septem-
                     ber 2013 presented by Costa Rica depicts a shallow trench which begins
                     at the seaward end of the eastern caño. It is apparent from the satellite
                     image of 5 October 2013 that this trench has been extended and currently
                     cuts across the beach, with only a narrow stretch of sand separating it
                     from the sea. Nicaragua furthermore recognizes the existence of the two
                     new caños and the trench, although it states that all work relating to these
                     features stopped following President Ortega’s instructions of 21 Septem-
                     ber 2013.

                       45. Nicaragua admits that the dredging operations for the construction
                     of the caños were carried out by a group of its nationals led by Mr. Pas-

                     14

5 Ord 1051.indb 24                                                                                24/06/14 15:58

                     365 	 certain activities ; construction of a road (order 22 XI 13)

                     tora, in the context of the implementation of a project for the improve-
                     ment of navigation on the San Juan River. This project, which, according
                     to the Report of the National Port Authority, was designed “to guarantee
                     the natural flow of the San Juan River into the river mouth Delta”,
                     included the “use of a suction dredger”. It was approved by the Nicara-
                     guan Ministry of Environmental and Natural Resources. Mr. Pastora
                     was appointed by the President of Nicaragua to carry out this project and
                     was addressed by the National Port Authority as “Government Delegate
                     for Dredging Works”.

                        46. The Court further notes that the evidence submitted to it establ
                     ishes the presence in the disputed territory of Nicaraguan personnel carry
                     ing out dredging operations, as well as infrastructure (including lodging
                     tents), and equipment (including dredgers). In addition, the Court notes
                     that the presence of a Nicaraguan army encampment on the beach is vis-
                     ible on a photograph dated 5 February 2013 ; thus, at least since that
                     date, Nicaraguan military personnel have been stationed there. Nicara-
                     gua acknowledges the presence of its military encampment on the beach
                     north of the two new caños which it understands to be a sand bank (see
                     paragraph 42 above). The Court considers however that, contrary to
                     what Nicaragua alleges, this encampment is located on the beach and
                     close to the line of vegetation, and is therefore situated in the disputed
                     territory as defined by the Court in its Order of 8 March 2011 (see para-
                     graph 44 above). The ongoing presence of this encampment is confirmed
                     by the satellite images of 5 and 14 September 2013 and the photograph of
                     18 September 2013.
                        47. With regard to the presence, in the disputed territory, of Nicara-
                     guan nationals, other than those referred to in operative paragraph 1 of
                     its Order of 8 March 2011 (see paragraph 3 above), the Court has already
                     expressed its concerns in this respect in its Order of 16 July 2013. In par-
                     ticular, the Court referred to members of the Guardabarranco Environ-
                     mental Movement, an entity which Nicaragua describes as a private
                     movement whose main objective is to implement environmental conserva-
                     tion programmes and projects. The Court considered that their presence
                     carried the risk of incidents which could aggravate the dispute, given that
                     the situation may be exacerbated by the limited size of the area and the
                     numbers of Nicaraguan nationals who were regularly present there (Order
                     of 16 July 2013, para. 37). The continuing access of the members of the
                     Guardabarranco to the disputed territory is referred to, in particular, in a
                     diplomatic Note addressed on 16 September 2013 by the Costa Rican
                     Minister for Foreign Affairs to his Nicaraguan counterpart.

                                                          *
                       48. The Court now turns to the question of whether the situation in
                     the disputed territory, and in particular, the caños and the trench as they

                     15

5 Ord 1051.indb 26                                                                                24/06/14 15:58

                     366 	 certain activities ; construction of a road (order 22 XI 13)

                     currently stand, pose a risk of irreparable prejudice to the rights claimed
                     by Costa Rica.
                         49. It observes that, while the two expert reports provided by Costa
                     Rica and prepared in October 2013 concluded that the course of the San
                     Juan River could be altered only if the digging of the trench next to the
                     eastern caño were to continue, that assessment was made on the basis of
                     information regarding the trench as shown on the satellite images taken
                     on 5 and 14 September 2013 and in the photograph taken on 18 Septem-
                     ber 2013. However, in view of the length, breadth and position of that
                     trench, as visible on the satellite image of 5 October 2013, the Court con-
                     siders that there is a real risk that the trench could reach the sea either as
                     a result of natural elements or by human actions, or a combination of
                     both. Such an outcome would have the effect of connecting the San Juan
                     River with the Caribbean Sea through the eastern caño. Given the
                     evidence before it, the Court is satisfied that an alteration of the course
                      of the San Juan River could ensue, with serious consequences for
                      the rights claimed by Costa Rica. The Court is therefore of the opinion
                      that the situation in the disputed territory reveals the existence of a real
                      risk of irreparable prejudice to the rights claimed by the Applicant in this
                      case.
                         50. The Court moreover considers that there is urgency. The risk of
                      irreparable prejudice as identified in the previous paragraph is not only
                      real but also appears to be imminent, for the following reasons. First,
                      during the rainy season, the increased flow of water in the San Juan River
                      and consequently in the eastern caño could extend the trench and connect
                      it with the sea, thereby potentially creating a new course for the San Juan
                      River. Secondly, the trench could also easily be connected to the sea, with
                      minimum effort and equipment, by persons accessing this area from Nica-
                      raguan territory. Thirdly, a Nicaraguan military encampment is located
                      only metres away from the trench, in an area that Nicaragua regards as
                      lying outside the disputed territory. Fourthly, in response to a question
                      from a Member of the Court regarding the location of equipment used in
                      the construction of the caños, Nicaragua advised the Court of the loca-
                      tion of the dredgers, but did not rule out the presence in the disputed
                      territory of other equipment that could be used to extend the trench. In
                      this regard, the Court takes note of the instructions given on 21 Septem-
                      ber 2013 by the President of Nicaragua to the Executive President of the
                      National Port Authority to “immediately cease the cleansing works in the
                      Delta area” and to “withdraw the personnel and machinery” in the dis-
                      puted territory. The Court further takes note of the assurances of Nicara-
                      gua, as formulated by its Agent at the hearings in response to a question
                      put by a Member of the Court, that it considers itself bound not to under-
                      take activities likely to connect any of the two caños with the sea and to
                      prevent any person or group of persons from doing so. However, the
                      Court is not convinced that these instructions and assurances remove the
                      imminent risk of irreparable prejudice, since, as Nicaragua recognized,
                      persons under its jurisdiction have engaged in activities in the disputed

                     16

5 Ord 1051.indb 28                                                                                24/06/14 15:58

                     367     certain activities ; construction of a road (order 22 XI 13)

                     territory, namely the construction of the two new caños, which are incon-
                     sistent with the Court’s Order of 8 March 2011.

                                           IV. Measures to Be Adopted

                        51. The Court concludes from the foregoing that, in view of the cir-
                     cumstances, and given that all the conditions required by its Statute for it
                     to indicate provisional measures have been met, it ought to indicate such
                     measures to address the new situation prevailing in the disputed territory.
                     These measures will supplement those already in force under the Order of
                     8 March 2011.
                        52. The Court recalls that it has the power, under its Statute, when a
                     request for provisional measures has been made, to indicate measures
                     that are in whole or in part other than those requested. Article 75, para-
                     graph 2, of the Rules of Court specifically refers to this power of the
                     Court. The Court has already exercised this power on several occasions in
                     the past (see, for example, Request for Interpretation of the Judgment of
                     15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambo-
                     dia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of
                     18 July 2011, I.C.J. Reports 2011 (II), p. 551, para. 58). In the present
                     case, having considered the terms of the provisional measures requested
                     by Costa Rica, the Court finds that the measures to be indicated need not
                     be identical to those requested.
                        53. The Court is of the opinion that the filling of the trench next to the
                     eastern caño must be carried out immediately. In light of the circum-
                     stances of the case and in particular of the fact that the digging of the
                     trench was carried out by Nicaragua’s personnel, it is for Nicaragua now
                     to fill it, notwithstanding point 1 of paragraph 86 of the Court’s Order of
                     8 March 2011. Nicaragua shall do so within two weeks of the date of the
                     present Order. It shall immediately inform the Court of the completion of
                     the filling of the trench and shall submit to it, within one week of said
                     completion, a report containing all necessary details, including photo-
                     graphic evidence.

                        54. With regard to the two new caños, the Court recalls that they are
                     situated in the disputed territory in the “Humedal Caribe Noreste” wet-
                     land in respect of which Costa Rica bears obligations under the Ramsar
                     Convention. Therefore, pending delivery of the Judgment on the merits,
                     Costa Rica shall consult with the Secretariat of the Ramsar Convention
                     for an evaluation of the environmental situation created by the construc-
                     tion of the two new caños. Taking into account any expert input from the

                     17

5 Ord 1051.indb 30                                                                                24/06/14 15:58

                     368     certain activities ; construction of a road (order 22 XI 13)

                     Secretariat, Costa Rica may take appropriate measures related to the new
                     caños, to the extent necessary to prevent irreparable prejudice to the envi-
                     ronment of the disputed territory. In taking these measures, Costa Rica
                     shall avoid any adverse effects on the San Juan River. Costa Rica shall
                     give Nicaragua prior notice of any such measures.

                        55. With regard to the presence of Nicaraguan personnel, infrastruc-
                     ture and equipment on the disputed territory, the Court recalls that, in its
                     Order of 8 March 2011, it indicated a first provisional measure, according
                     to which, “[e]ach Party shall refrain from sending to, or maintaining in
                     the disputed territory . . . any personnel, whether civilian, police or secu-
                     rity” (Certain Activities Carried Out by Nicaragua in the Border Area
                     (Costa Rica v. Nicaragua), Provisional Measures, Order of 8 March 2011,
                     I.C.J. Reports 2011 (I), p. 27, para. 86, point 1). The Court now consid-
                     ers that, in view of its above findings with regard to the presence in the
                     disputed territory of the personnel carrying out the dredging operations
                     and the Nicaraguan army encampment, the provisional measure indi-
                     cated in its Order of 8 March 2011 must be reinforced and supplemented.
                     Therefore, the Court considers that Nicaragua, after having filled the
                     trench on the beach, shall (i) cause the removal from the disputed terri-
                     tory of any personnel, whether civilian, police or security ; and (ii) prevent
                     any such personnel from entering the disputed territory.
                        56. With regard to the presence in the disputed territory of private per-
                     sons under Nicaragua’s jurisdiction or control, the Court has already
                     expressed its concern in this respect in its Order of 16 July 2013
                     (I.C.J. Reports 2013, p. 240, para. 37). In view of the continuing access of
                     the members of the Guardabarranco Environmental Movement to the
                     disputed territory (see paragraph 47 above), the Court considers that
                     Nicaragua shall cause the removal from and prevent the entrance into the
                     disputed territory of any private persons under its jurisdiction or control.

                                                            *
                                                        *       *

                        57. The Court reiterates that its “orders on provisional measures under
                     Article 41 [of the Statute] have binding effect” (LaGrand (Germany v.
                     United States of America), Judgment, I.C.J. Reports 2001, p. 506,
                     para. 109) and thus create international legal obligations with which both
                     Parties are required to comply (see, for example, Certain Activities Carried
                     Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
                     Provisional Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I),
                      pp. 26‑27, para. 84). It further recalls that the question of compliance
                      with provisional measures indicated in a case may be considered by the
                      Court in the principal proceedings (see 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),

                     18

5 Ord 1051.indb 32                                                                                24/06/14 15:58

                     369 	 certain activities ; construction of a road (order 22 XI 13)

                     Counter‑Claims, Order of 18 April 2013, I.C.J. Reports 2013, p. 215,
                     para. 40).

                                                            *
                                                        *       *

                       58. The decision given in the present proceedings in no way prejudges
                     any questions relating to the merits or any other issues to be decided at
                     that stage. It leaves unaffected the right of the Governments of Costa
                     Rica and Nicaragua to submit arguments in respect of those questions.

                                                            *
                                                        *       *

                       59. For these reasons,
                       The Court,
                       (1) Unanimously,
                       Reaffirms the provisional measures indicated in its Order of 8 March
                     2011 ;
                       (2) Indicates the following provisional measures :
                       (A) Unanimously,
                       Nicaragua shall refrain from any dredging and other activities in the
                     disputed territory, and shall, in particular, refrain from work of any kind
                     on the two new caños ;
                       (B) Unanimously,
                       Notwithstanding the provisions of point 2 (A) above and para-
                     graph 86 (1) of the Order of 8 March 2011, Nicaragua shall fill the trench
                     on the beach north of the eastern caño within two weeks from the date of
                     the present Order ; it shall immediately inform the Court of the com
                     pletion of the filling of the trench and, within one week from the said
                     completion, shall submit to it a report containing all necessary details,
                     including photographic evidence ;
                       (C) Unanimously,
                       Except as needed for implementing the obligation under point 2 (B)
                     above, Nicaragua shall (i) cause the removal from the disputed territory
                     of any personnel, whether civilian, police or security ; and (ii) prevent any
                     such personnel from entering the disputed territory ;
                       (D) Unanimously,
                        Nicaragua shall cause the removal from and prevent the entrance into
                     the disputed territory of any private persons under its jurisdiction or con-
                     trol ;

                     19

5 Ord 1051.indb 34                                                                                24/06/14 15:58

                     370 	 certain activities ; construction of a road (order 22 XI 13)

                       (E) By fifteen votes to one,
                        Following consultation with the Secretariat of the Ramsar Convention
                     and after giving Nicaragua prior notice, Costa Rica may take appropriate
                     measures related to the two new caños, to the extent necessary to prevent
                     irreparable prejudice to the environment of the disputed territory ; in
                     taking these measures, Costa Rica shall avoid any adverse effects on the
                      San Juan River ;

                       in favour : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges Owada,
                          Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue,
                          Donoghue, Gaja, Sebutinde, Bhandari ; Judge ad hoc Dugard ;

                       against : Judge ad hoc Guillaume ;
                       (3) Unanimously,
                        Decides that the Parties shall regularly inform the Court, at three‑month
                     intervals, as to the compliance with the above provisional measures.

                       Done in English and in French, the English text being authoritative, at
                     the Peace Palace, The Hague, this twenty‑second day of November, two
                     thousand and thirteen, in three copies, one of which will be placed in the
                     archives of the Court and the others transmitted to the Government of
                     the Republic of Costa Rica and the Government of the Republic of Nica-
                     ragua, respectively.

                                                                    (Signed) Peter Tomka,
                                                                              President.
                                                                (Signed) Philippe Couvreur,
                                                                              Registrar.

                       Judge Cançado Trindade appends a separate opinion to the Order of
                     the Court ; Judges ad hoc Guillaume and Dugard append declarations
                     to the Order of the Court.

                                                                             (Initialled) P.T.
                                                                             (Initialled) Ph.C.

                     20

5 Ord 1051.indb 36                                                                                24/06/14 15:58