     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)

     REQUEST FOR THE INDICATION
      OF PROVISIONAL MEASURES

        ORDER OF 8 MARCH 2011

            2011
     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)

       DEMANDE EN INDICATION
     DE MESURES CONSERVATOIRES

     ORDONNANCE DU 8 MARS 2011

                              Official citation :
      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, p. 6

                         Mode officiel de citation :
    Certaines activités menées par le Nicaragua dans la région frontalière
             (Costa Rica c. Nicaragua), mesures conservatoires,
            ordonnance du 8 mars 2011, C.I.J. Recueil 2011, p. 6

                                                              1013
                                              Sales number
ISSN 0074-4441                                No de vente:
ISBN 978-92-1-071124-1

                                  8 MARCH 2011

                                     ORDER

CERTAIN ACTIVITIES CARRIED OUT
        BY NICARAGUA
     IN THE BORDER AREA
  (COSTA RICA v. NICARAGUA)

     REQUEST FOR THE INDICATION
      OF PROVISIONAL MEASURES

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

      DEMANDE EN INDICATION
     DE MESURES CONSERVATOIRES

                                  8 MARS 2011

                                  ORDONNANCE

               6

                              INTERNATIONAL COURT OF JUSTICE

   2011                                          YEAR 2011
 8 March
General List
 No. 150                                      8 March 2011

                       CERTAIN ACTIVITIES CARRIED OUT
                               BY NICARAGUA
                            IN THE BORDER AREA
                                   (COSTA RICA v. NICARAGUA)

                                 REQUEST FOR THE INDICATION
                                  OF PROVISIONAL MEASURES

                                                  ORDER

                         President Owada ; Vice‑President Tomka ; Judges Koroma,
               Present :
                         Al‑Khasawneh, Simma, Abraham, Keith, Sepúlveda‑Amor,
                         Bennouna, Skotnikov, Cançado Trindade, Yusuf, Green
                         wood, Xue, Donoghue ; 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,
                   Makes the following Order :
                 1. Whereas by an Application filed in the Registry of the Court on
               18 November 2010, the Republic of Costa Rica (hereinafter “Costa
               Rica”) instituted proceedings against the Republic of Nicaragua (herein-

               4

7 	                 certain activities (order 8 III 11)

after “Nicaragua”) on the basis of an alleged “incursion into, occupation
of and use by Nicaragua’s army of Costa Rican territory” as well as
alleged breaches of Nicaragua’s obligations towards Costa Rica under :

     “(a) the Charter of the United Nations and the Charter of the Organ-
           ization of American States ;
      (b) the Treaty of Territorial Limits between Costa Rica and
           Nicaragua of 15 April 1858 . . ., in particular Articles I, II, V
           and IX ;
      (c)	the arbitral award issued by the President of the United States of
           America, Grover Cleveland, on 22 March 1888 . . . ;
      (d) the first and second arbitral awards rendered by Edward Porter
           Alexander dated respectively 30 September 1897 and 20 Decem-
           ber 1897 . . . ;
      (e) the 1971 Convention on Wetlands of International Importance
           especially as Waterfowl Habitat . . . ;

      (f) the Judgment of the Court of 13 July 2009 in the case concerning
          the Dispute regarding Navigational and Related Rights (Costa
          Rica v. Nicaragua) ; and
      (g) other applicable rules and principles of international law” ;
    2. Whereas Costa Rica states in its Application that
      “[b]y sending contingents of its armed forces to Costa Rican territory
      and establishing military camps therein, Nicaragua is not only acting
      in outright breach of the established boundary regime between the
      two States, but also of the core founding principles of the United
      Nations, namely the principles of territorial integrity and the prohi-
      bition of the threat or use of force against any State in accordance
      with Article 2, paragraph 4, of the Charter ; also endorsed as between
      the parties in Articles 1, 19 and 29 of the Charter of the Organization
      of American States” ;

    3. Whereas Costa Rica contends in the said Application that
      “Nicaragua has, in two separate incidents, occupied the territory of
      Costa Rica in connection with the construction of a canal across
      Costa Rican territory from the San Juan River to Laguna los Portillos
      (also known as Harbor Head Lagoon), and certain related works of
      dredging on the San Juan River” ;

whereas it states that during the first incursion, which occurred on or
about 18 October 2010, Nicaragua was reported “felling trees and depos-
iting sediment from the dredging works on Costa Rican territory” ;
whereas it adds that, “[a]fter a brief withdrawal, on or about 1 Novem-

5

8 	                certain activities (order 8 III 11)

ber 2010 a second contingent of Nicaraguan troops entered Costa Rican
territory and established a camp” ;

   4. Whereas Costa Rica maintains that “[t]his second incursion has
resulted in the continuing occupation by armed Nicaraguan military
forces of an initial area of around 3 square kilometres of Costa Rican ter-
ritory, located at the north-east Caribbean tip of Costa Rica”, but that
“evidence shows that Nicaraguan military forces have also ventured fur-
ther inside Costa Rican territory, to the south of that area” ; whereas it
contends that Nicaragua has “also seriously damaged that part of Costa
Rican territory under its occupation” ;

  5. Whereas Costa Rica also asserts in the said Application that “[t]he
ongoing and planned dredging and the construction of the canal will seri-
ously affect the flow of water to the Colorado River of Costa Rica, and
will cause further damage to Costa Rican territory, including the wet-
lands and national wildlife protected areas located in the region” ;

   6. Whereas, relying on statements made by the Nicaraguan head of the
dredging operations and the President of Nicaragua, Costa Rica asserts
that Nicaragua is seeking to divert the flow of the San Juan River to what
that State erroneously describes as its “historic channel” by cutting a
canal which would join the seaward course of the river to the Laguna los
Portillos ; whereas, in so doing, Nicaragua would cause harm to an area
of territory which Costa Rica maintains, for the reasons set out at length
in its Application, falls under its sovereignty ;

   7. Whereas Costa Rica contends in particular that the border line,
 which it claims Nicaragua is violating by its military and dredging opera-
tions, has for the last 113 years “consistently been respected and depicted,
in all official maps of both countries, as constituting the international
boundary line between Costa Rica and Nicaragua” ;
   8. Whereas in its Application, as a basis for the jurisdiction of the
Court, Costa Rica refers to Article XXXI of the American Treaty on
Pacific Settlement signed at Bogotá on 30 April 1948 (hereinafter the
“Pact of Bogotá”) and to the declarations made under Article 36,
paragraph 2, of the Statute of the Court, by Costa Rica on 20 Febru-
 ary 1973 and by Nicaragua on 24 September 1929 (as amended on
23 October 2001) ;
   9. Whereas, at the end of its Application, Costa Rica presents the fol-
 lowing submissions :
         “For these reasons, and reserving the right to supplement, amplify
      or amend the present Application, Costa Rica requests the Court
      to adjudge and declare that Nicaragua is in breach of its inter-
      national obligations as referred to in paragraph 1 of this Applica-
      tion as regards the incursion into and occupation of Costa Rican

6

9 	                 certain activities (order 8 III 11)

      territory, the serious damage inflicted to its protected rainforests
      and wetlands, and the damage intended to the Colorado River,
      wetlands and protected ecosystems, as well as the dredging and canal-
       ization activities being carried out by Nicaragua on the San Juan
       River.
          In particular the Court is requested to adjudge and declare that, by
       its conduct, Nicaragua has breached :
      (a) the territory of the Republic of Costa Rica, as agreed and delim-
          ited by the 1858 Treaty of Limits, the Cleveland Award and the
          first and second Alexander Awards ;
      (b) the fundamental principles of territorial integrity and the prohi-
          bition of use of force under the Charter of the United Nations
          and the Charter of the Organization of American States ;
      (c) the obligation imposed upon Nicaragua by Article IX of the
          1858 Treaty of Limits not to use the San Juan River to carry out
          hostile acts ;
      (d) the obligation not to damage Costa Rican territory ;

      (e) the obligation not to artificially channel the San Juan River away
          from its natural watercourse without the consent of Costa Rica ;
      (f) the obligation not to prohibit the navigation on the San Juan
          River by Costa Rican nationals ;
      (g) the obligation not to dredge the San Juan River if this causes
          damage to Costa Rican territory (including the Colorado River),
          in accordance with the 1888 Cleveland Award ;

      (h) the obligations under the Ramsar Convention on Wetlands ;

      (i) the obligation not to aggravate and extend the dispute by adopt-
          ing measures against Costa Rica, including the expansion of the
          invaded and occupied Costa Rican territory or by adopting any
          further measure or carrying out any further actions that would
          infringe Costa Rica’s territorial integrity under international
          law” ;
   10. Whereas Costa Rica also requests the Court to “determine the rep-
aration which must be made by Nicaragua, in particular in relation to
any measures of the kind referred to . . . above” (para. 9) ;
   11. Whereas on 18 November 2010, having filed its Application, Costa
Rica also submitted a Request for the indication of provisional measures,
pursuant to Article 41 of the Statute of the Court and Articles 73 to 75 of
the Rules of Court ;
   12. Whereas, in its Request for the indication of provisional measures,
Costa Rica refers to the same bases of jurisdiction of the Court relied on
in its Application (see paragraph 8 above) and to the facts set out therein ;

7

10 	                certain activities (order 8 III 11)

    13. Whereas, in support of the said Request, Costa Rica states that

      “Nicaragua is currently destroying an area of primary rainforests and
      fragile wetlands on Costa Rican territory (listed as such under the
      Ramsar Convention’s List of Wetlands of International Importance)
      for the purpose of facilitating the construction of a canal through
      Costa Rican territory, intended to deviate the waters of the San Juan
      River from its natural historical course into Laguna los Portillos (the
      Harbor Head Lagoon)” ;
whereas it observes that “Nicaraguan officials have indicated that the
intention of Nicaragua is to deviate some 1,700 cubic metres per second
. . . of the water that currently is carried by the Costa Rican Colorado
River” ;
    14. Whereas Costa Rica contends that it has regularly protested to
Nicaragua and called on it not to dredge the San Juan River “until it can
be established that the dredging operation will not damage the Colorado
River or other Costa Rican territory”, but that Nicaragua has neverthe-
less continued with its dredging activities on the San Juan River and that
it “even announced on 8 November 2010 that it would deploy two addi-
tional dredges to the San Juan River”, one of which is reportedly still
under construction ;
    15. Whereas Costa Rica asserts that Nicaragua’s statements demon-
strate “the likelihood of damage to Costa Rica’s Colorado River, and to
Costa Rica’s lagoons, rivers, herbaceous swamps and woodlands”, the
dredging operation posing more specifically “a threat to wildlife refuges
in Laguna Maquenque, Barra del Colorado, Corredor Fronterizo and the
Tortuguero National Park” ;

   16. Whereas Costa Rica refers to the adoption on 12 November 2010
of a resolution of the Permanent Council of the Organization of Ameri-
can States (CP/RES.978 (1777/10)), welcoming and endorsing the recom-
mendations made by the Secretary‑General of that Organization in his
report of 9 November 2010 (CP/doc.4521/10) ; and whereas it states that
the Permanent Council called on the Parties to comply with those recom-
mendations, in particular that requesting “the avoidance of the presence
of military or security forces in the area where their existence might rouse
tension” ;
   17. Whereas Costa Rica asserts that Nicaragua’s “immediate response
to the Resolution of the Permanent Council of the OAS was to state [its]
intention not to comply with [it]” and that Nicaragua has “consistently
refused all requests to remove its armed forces from the Costa Rican ter-
ritory in Isla Portillos” ;
   18. Whereas Costa Rica affirms that its rights to sovereignty and ter-
ritorial integrity form the subject of its Request for the indication of pro-
visional measures submitted to the Court ; whereas it maintains that
Nicaragua’s obligation “not to dredge the San Juan if this affects or dam-

8

11 	              certain activities (order 8 III 11)

ages Costa Rica’s lands, its environmentally protected areas and the
integrity and flow of the Colorado River” corresponds to these rights ;

 19. Whereas, at the end of its Request for the indication of provisional
measures, Costa Rica asks the Court
    “as a matter of urgency to order the following provisional measures
    so as to rectify the presently ongoing breach of Costa Rica’s territorial
    integrity and to prevent further irreparable harm to Costa Rica’s ter-
    ritory, pending its determination of this case on the merits :

    (1) the immediate and unconditional withdrawal of all Nicaraguan
        troops from the unlawfully invaded and occupied Costa Rican
        territories ;
    (2) the immediate cessation of the construction of a canal across
        Costa Rican territory ;
    (3) the immediate cessation of the felling of trees, removal of vegeta-
        tion and soil from Costa Rican territory, including its wetlands
        and forests ;
    (4) the immediate cessation of the dumping of sediment in Costa
        Rican territory ;
    (5) the suspension of Nicaragua’s ongoing dredging programme,
        aimed at the occupation, flooding and damage of Costa Rican
        territory, as well as at the serious damage to and impairment of
        the navigation of the Colorado River, giving full effect to the
        Cleveland Award and pending the determination of the merits of
        this dispute ;

    (6) that Nicaragua shall refrain from any other action which might
        prejudice the rights of Costa Rica, or which may aggravate or
        extend the dispute before the Court” ;
    20. Whereas on 18 November 2010, the date on which the Application
and the Request for the indication of provisional measures were filed in
the Registry, the Registrar informed the Nicaraguan Government of the
filing of these documents and transmitted certified copies of them to it
forthwith, in accordance with Article 40, paragraph 2, of the Statute of
the Court and Article 38, paragraph 4, and Article 73, paragraph 2, of the
Rules of Court ; and whereas the Registrar also notified the Secretary‑
General of the United Nations of this filing ;
    21. Whereas on 19 November 2010 the Registrar informed the Parties
that the Court, in accordance with Article 74, paragraph 3, of the Rules
of Court, had fixed 11, 12 and 13 January 2011 as the dates for the oral
proceedings on the Request for the indication of provisional measures ;
    22. Whereas, pending the notification provided for by Article 40, para-
graph 3, of the Statute and Article 42 of the Rules of Court by transmis-
sion of the printed bilingual text of the Application to the Members of the

9

12 	               certain activities (order 8 III 11)

United Nations, the Registrar informed those States of the filing of the
Application and its subject, and of the filing of the Request for the indica-
tion of provisional measures ;
   23. Whereas, on the instructions of the Court and in accordance with
Article 43 of the Rules of Court, the Registrar addressed to all the States
parties to the Pact of Bogotá the notification provided for in Article 63,
paragraph 1, of the Statute ; and whereas the Registrar also addressed to
the Secretary‑General of the Organization of American States the notifi-
cation provided for in Article 34, paragraph 3, of the Statute ;
   24. Whereas, since the Court includes upon the Bench no judge of the
nationality of the Parties, each of them proceeded, in exercise of the right
conferred by Article 31, paragraph 3, of the Statute, to choose a judge
ad hoc in the case ; whereas, for this purpose, Costa Rica chose
Mr. John Dugard, and Nicaragua chose Mr. Gilbert Guillaume ;
   25. Whereas on 4 January 2011 Costa Rica transmitted to the Court
certain documents relating to the Request for the indication of provisional
measures, to which it intended to refer during the oral proceedings ; whereas
these documents were communicated forthwith to the other Party ;
   26. Whereas, on the same day and to the same end, Nicaragua in turn
transmitted certain documents to the Court, which were communicated
forthwith to the other Party ; whereas on the same occasion Nicaragua
filed in the Registry electronic copies of documents, including video mat
erial which it intended to present to the Court during the oral proceedings ;
whereas Costa Rica informed the Registrar that it had no objection to
such a presentation ; and whereas the Court authorized the presentation
of the video material at the hearings ;
   27. Whereas, on 4 January 2011, Nicaragua also asked the Court, in
the exercise of its power under Article 62, paragraph 1, of the Rules of
Court, to call upon Costa Rica to produce, before the opening of the oral
proceedings, studies it had carried out with regard to the impact of the
dredging of the San Juan River on the flow of the Colorado River ;
whereas, following this request, Costa Rica produced such a study on its
own initiative on 6 January 2011 ;
   28. Whereas on 10 January 2011 Costa Rica also transmitted to the
Court electronic versions of a Nicaraguan atlas from which it intended to
produce certain maps during the oral proceedings ; whereas this docu-
ment was communicated forthwith to Nicaragua ;
   29. Whereas at the public hearings held on 11, 12 and 13 January 2011,
in accordance with Article 74, paragraph 3, of the Rules of Court, oral
observations on the Request for the indication of provisional measures
were presented the following representatives of the Parties :

On behalf of Costa Rica : H.E. Mr. Edgar Ugalde Álvarez, Agent,
                           Mr. Arnoldo Brenes,
                           Mr. Sergio Ugalde, Co‑Agent,
                           Mr. Marcelo Kohen,
                           Mr. James Crawford ;

10

13 	               certain activities (order 8 III 11)

On behalf of Nicaragua : H.E. Mr. Carlos José Argüello Gómez, Agent,
                         Mr. Stephen C. McCaffrey,
                         Mr. Paul S. Reichler,
                         Mr. Alain Pellet ;

and whereas, during the hearings, questions were put by certain Members
of the Court to Nicaragua, to which replies were given in writing by the
latter ; whereas, in accordance with Article 72 of the Rules of Court,
Costa Rica then commented upon Nicaragua’s written replies ;

                                      *
                                  *       *

  30. Whereas, in its first round of oral observations, Costa Rica reiter-
ated the arguments developed in its Application and its Request for the
indication of provisional measures, and argued that the conditions neces-
sary for the Court to indicate the requested measures had been fulfilled ;

   31. Whereas Costa Rica reaffirmed that, without its consent, Nicara-
gua has constructed an artificial canal across an area of Costa Rican ter-
ritory unlawfully occupied by Nicaraguan armed forces ; whereas, to this
end, Nicaragua is said to have illegally deforested areas of internationally
protected primary forests ; and whereas, according to Costa Rica, Nicara-
gua’s actions have caused serious damage to a fragile ecosystem and are
aimed at establishing a fait accompli, modifying unilaterally the bound-
ary between the two Parties, by attempting to deviate the course of the
San Juan River, in spite of the Respondent’s “constant, unambiguous
[and] incontestable” recognition of the Applicant’s sovereignty over Isla
Portillos, which the said canal would henceforth intersect ;

  32. Whereas Costa Rica declared that it is not opposed to Nicaragua
carrying out works to clean the San Juan River, provided that these
works do not affect Costa Rica’s territory, including the Colorado River,
or its navigation rights on the San Juan River, or its rights in the Bay of
San Juan del Norte ; whereas Costa Rica asserted that the dredging works
carried out by Nicaragua on the San Juan River did not comply with
these conditions, firstly because Nicaragua has deposited large amounts
of sediment from the river in the Costa Rican territory it is occupying and
has proceeded to deforest certain areas ; secondly, because these works,
and those relating to the cutting of the disputed canal, have as a conse-
quence the significant deviation of the waters of the Colorado River,
which is situated entirely in Costa Rican territory ; and, thirdly, because
these dredging works will spoil portions of Costa Rica’s northern coast
on the Caribbean Sea ;
  33. Whereas Costa Rica asserted that the part of its territory affected
by Nicaragua’s activities is protected under the Convention on Wetlands

11

14 	               certain activities (order 8 III 11)

of International Importance especially as Waterfowl Habitat, done at
Ramsar on 2 February 1971 (United Nations Treaty Series (UNTS),
Vol. 996, No. I‑14583, p. 245, hereinafter the “Ramsar Convention”), and
that on 17 December 2010, further to a mission, a report by the Ramsar
Secretariat (hereinafter the “Ramsar Report”) stated that the work under-
taken by Nicaragua had inflicted serious damage on the protected wet-
lands ; whereas Costa Rica also referred to a report of 4 January 2011
drawn up by the Operational Satellite Applications Programme of the
United Nations Institute for Training and Research (hereinafter the
“UNITAR/UNOSAT report”) relating to the geomorphological and
environmental changes likely to be caused by Nicaragua’s activities in the
border region ;

   34. Whereas, according to Costa Rica, the Court is not seised of a
boundary dispute arising from a divergence of interpretation, between the
Parties, of a treaty or an arbitral award, because, until the unexpected
emergence of the present dispute, Nicaragua had always recognized Isla
Portillos as falling in its entirety under Costa Rican sovereignty ; whereas,
to this end, Costa Rica recalled the history and substance of the territo-
rial demarcation between the Parties through the 1858 Treaty of Limits,
the 1888 Cleveland Award, the 1896 Pacheco‑Matus Convention and the
five arbitral awards of General Alexander ; whereas, in support of its
assertions, it produced a number of maps, including some drawn up at
the time of the above‑mentioned awards and, more recently, by Nicara-
gua itself or by third States ; and whereas Costa Rica maintained that
Nicaragua is attempting, in a new and artificial way, to portray these
proceedings as a territorial dispute, even though it is indisputably estab-
lished that, from the point on the coast originally identified as Punta Cas-
tilla, the boundary runs all around the Harbor Head Lagoon and along
the sea coast of Isla Portillos before joining the mouth of the San Juan
River, in such a way that the canal cut by Nicaragua across Isla Portillos
is on Costa Rican territory ;
   35. Whereas Costa Rica also asserted that its title to territory was con-
firmed by effectivités, namely the exercise of elements of governmental
authority in the disputed territory, including the deeds of possession
inscribed in the Costa Rican cadastre ;

                                     *

   36. Whereas, in its first round of oral observations, Nicaragua stated
that the activities it is accused of by Costa Rica took place on Nicaraguan
territory and that they did not cause, nor do they risk causing, irreparable
harm to the other Party ;
   37. Whereas, referring to the first Alexander Award dated 30 Septem-
ber 1897 (United Nations, Reports of International Arbitral Awards (RIAA),
Vol. XXVIII, pp. 215‑222), Nicaragua maintained that, from the point

12

15 	               certain activities (order 8 III 11)

on the coast originally identified as Punta Castilla, the boundary follows
the eastern edge of the Harbor Head Lagoon before joining the San Juan
River by the first natural channel in a south‑westerly and then a southerly
direction ; that this boundary line in the area in dispute derives from the
very terms of the Alexander Award and is more rational than the line
claimed by Costa Rica, since it links, by the said channel, the bed of the
San Juan River to the Harbor Head Lagoon, over which Nicaragua is
indisputably sovereign ; and that the exercise in various forms and over
several years of sovereign prerogatives in the region in question by the
Nicaraguan public authorities is confirmation of Nicaragua’s title to
territory ;
    38. Whereas Nicaragua asserted that since the said natural channel had
 become obstructed over the years, it had undertaken to make it once more
 navigable for small vessels ; whereas the works condemned by Costa Rica
 were not therefore aimed at the cutting of an artificial canal ; and whereas
 the cleaning and clearing of the channel had been carried out manually in
 Nicaraguan territory, the right bank of the said channel constituting the
 boundary between the two Parties ;
    39. Whereas Nicaragua also asserted that the number of trees felled
 was limited and that it has undertaken to replant the affected areas, all
 located on the left bank of the said channel, with ten trees for every one
 felled ; whereas it stated that the works to clean the channel are over and
 finished ;
    40. Whereas Nicaragua indicated that the dredging operations on the
 San Juan River were made necessary by the progressive sedimentation of
 its bed and that it has not only a sovereign right to dredge the river, but
 also an international obligation to do so ; whereas it stated that these
 operations, aimed at improving the navigability of the river, had only
 been authorized after an environmental impact assessment had been duly
 completed ; whereas it added that, as in the case of the cleaning and clear-
 ing of the channel, any debris from the dredging of the river had been set
 on Nicaragua’s side of the border, at various clearly identified sites ;

   41. Whereas Nicaragua contended that Costa Rica did not suffer, nor
was it likely to suffer, any harm on account of these disputed activities ;
whereas it contested the scientific value of the Ramsar Report on the
grounds that it was drawn up on the basis of information supplied solely by
Costa Rica ; whereas, according to Nicaragua, the impact of the dredging
works on the San Juan River on the flow of the Colorado River is and will
remain negligible, as recognized by a Costa Rican study ; and whereas Nica-
ragua referred to a report by Dutch experts confirming the validity of the
environmental impact assessment carried out by the Nicaraguan administra-
tion and the non‑injurious character of the dredging works undertaken ;
   42. Whereas Nicaragua disputed that elements of its armed forces had
occupied an area of Costa Rican territory ; whereas it stated that it had
assigned some of its troops to the protection of staff engaged in the clean-
ing of the channel and the dredging of the river, but clarified that these

13

16 	               certain activities (order 8 III 11)

troops had remained in Nicaraguan territory and that they were no longer
present in the border region where those activities took place ;

                                      *
   43. Whereas, in its second round of oral observations, Costa Rica
repudiated the existence of a natural channel joining the San Juan River
to the Harbor Head Lagoon and maintained that the narrow waterway in
question had been artificially constructed by Nicaragua in Costa Rican
territory ; whereas, according to Costa Rica, Nicaragua’s territorial claim
to the area in dispute is not “plausible” and derives from a dangerous
challenge to the principle of the stability of borders ; whereas Costa Rica
contended that the effectivités invoked by Nicaragua are supported only
by affidavits gathered from Nicaraguan State officials after the introduc-
tion of the present proceedings ;
   44. Whereas Costa Rica indicated that, in spite of its requests, it had
not received, before the present proceedings, a copy of the environmental
impact assessment conducted by Nicaragua ; whereas it observed that this
study concerned only the dredging operation on the San Juan River and
not the activities relating to the canal cut by Nicaragua and considered by
the latter to be a natural channel (hereinafter the “caño”, the Spanish
designation adopted by both Parties as from the second round of oral
argument) ; and whereas Costa Rica called into question the probative
value of the report of the Dutch experts submitted by Nicaragua and
maintained that it has suffered environmental harm which has the poten-
tial to be aggravated, thereby rendering necessary the indication of provi-
sional measures by the Court ;
   45. Whereas, at the end of its second round of oral observations, Costa
Rica presented the following submissions :
      “Costa Rica requests the Court to order the following provisional
     measures :
     A. Pending the determination of this case on the merits, Nicaragua
        shall not, in the area comprising the entirety of Isla Portillos, that
        is to say, across the right bank of the San Juan River and between
        the banks of the Laguna los Portillos (also known as Harbor
        Head Lagoon) and the Taura River (‘the relevant area’) :
        (1) station any of its troops or other personnel ;
        (2) engage in the construction or enlargement of a canal ;
        (3) fell trees or remove vegetation or soil ;

        (4) dump sediment.
     B. Pending the determination of this case on the merits, Nicaragua
        shall suspend its ongoing dredging programme in the River San
        Juan adjacent to the relevant area.

14

17 	               certain activities (order 8 III 11)

     C. Pending the determination of this case on the merits, Nicaragua
        shall refrain from any other action which might prejudice the
        rights of Costa Rica, or which may aggravate or extend the dis-
        pute before the Court” ;

                                       *
   46. Whereas, in its second round of oral observations, Nicaragua con-
tended that, contrary to Costa Rica’s affirmations, the caño existed before
it was the subject of the clean‑up operation ; that this fact was evidenced
by various maps, satellite photographs, the environmental impact assess-
ment conducted by Nicaragua and affidavits, all of which pre‑date the
disputed works ; and that the boundary between the Parties in the con-
tested area does indeed follow this caño, in view of the specific hydrologi-
cal characteristics of the region ;

   47. Whereas Nicaragua reaffirmed that it has the right to dredge the
San Juan River without having to obtain Costa Rica’s permission to do
so ; whereas it confirmed that this limited operation, like that relating to
the cleaning and clearing of the caño, had not caused any damage to
Costa Rica and did not risk causing any, since, according to Nicaragua,
there is no evidence to substantiate the Applicant’s claims ; and whereas it
concluded that there was nothing to justify the indication by the Court of
the provisional measures sought by Costa Rica ;

  48. Whereas, at the end of its second round of oral observations, Nica-
ragua presented the following submissions :
       “In accordance with Article 60 of the Rules of Court and having
     regard to the Request for the indication of provisional measures of
     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 rea-
     sons 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” ;

                                       *
                                   *       *

                        Prima Facie Jurisdiction

  49. Whereas, 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 ; whereas the Court need
not satisfy itself in a definitive manner that it has jurisdiction as regards

15

18 	               certain activities (order 8 III 11)

the merits of the case (see, for example, Questions relating to the Obliga‑
tion to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures,
Order of 28 May 2009, I.C.J. Reports 2009, p. 147, para. 40) ;

                                    *       *

   50. Whereas Costa Rica is seeking to found the jurisdiction of the
Court on Article XXXI of the Pact of Bogotá and on the declarations
made by the two States pursuant to Article 36, paragraph 2, of the Statute ;
whereas it also refers to a communication sent by the Nicaraguan M   inister
for Foreign Affairs to his Costa Rican counterpart dated 30 Novem-
ber 2010, in which the Court is presented as “the judicial organ of the
United Nations competent to discern over” the questions raised by the
present dispute ;
   51. Whereas Nicaragua, in the present proceedings, did not contest the
jurisdiction of the Court to entertain the dispute ;
   52. Whereas, in view of the foregoing, the Court considers 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 circumstances so
require ; whereas, at this stage of the proceedings, the Court is not obliged
to determine with greater precision which instrument or instruments
invoked by Costa Rica afford a basis for its jurisdiction to entertain the
various claims submitted to it (see ibid., p. 151, para. 54) ;

                                        *
                                   *        *

       Plausible Character of the Rights Whose Protection
          Is Being Sought and Link between These Rights
                    and the Measures Requested

   53. Whereas the power of the Court to indicate provisional measures
under Article 41 of the Statute has as its object the preservation of the
respective rights of the parties pending its decision ; whereas it follows
that the Court must be concerned to preserve by such measures the rights
which may subsequently be adjudged by the Court to belong to either
party ; whereas, therefore, the Court may exercise this power only if it is
satisfied that the rights asserted by a party are at least plausible (ibid.,
p. 151, paras. 56‑57) ;
   54. Whereas, moreover, a link must exist between the rights which form
the subject of the proceedings before the Court on the merits of the case
and the provisional measures being sought (see, for example, ibid., p. 151,
para. 56) ;

16

19 	               certain activities (order 8 III 11)

                 Plausible Character of the Rights Whose
                        Protection Is Being Sought
   55. Whereas the rights claimed by Costa Rica and forming the subject of
the case on the merits are, on the one hand, its right to assert sovereignty
over the entirety of Isla Portillos and over the Colorado River and, on the
other hand, its right to protect the environment in those areas over which
it is sovereign ; whereas, however, Nicaragua contends that it holds the
title to sovereignty over the northern part of Isla Portillos, that is to say,
the area of wetland of some 3 square kilometres between the right bank
of the disputed caño, the right bank of the San Juan River up to its mouth
at the Caribbean Sea and the Harbor Head Lagoon (hereinafter the
“disputed territory”), and whereas Nicaragua argues that its dredging of
the San Juan River, over which it has sovereignty, has only a negligible
impact on the flow of the Colorado River, over which Costa Rica has
sovereignty ;
   56. Whereas, therefore, apart from any question linked to the dredging
of the San Juan River and the flow of the Colorado River, the rights at
issue in these proceedings derive from the sovereignty claimed by the Par-
ties over the same territory (cf. Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures,
Order of 15 March 1996, I.C.J. Reports 1996 (I), p. 22, para. 39) ; and
whereas the part of Isla Portillos in which the activities complained of by
Costa Rica took place is ex hypothesi an area which, at the present stage
of the proceedings, is to be considered by the Court as in dispute (cf.
Aegean Sea Continental Shelf (Greece v. Turkey), Interim Protection,
Order of 11 September 1976, I.C.J. Reports 1976, p. 10, para. 28) ;
   57. Whereas, at this stage of the proceedings, the Court cannot settle
the Parties’ claims to sovereignty over the disputed territory and is not
called upon to determine once and for all whether the rights which Costa
Rica wishes to see respected exist, or whether those which Nicaragua con-
siders itself to possess exist ; whereas, for the purposes of considering the
Request for the indication of provisional measures, the Court needs only
to decide whether the rights claimed by the Applicant on the merits, and
for which it is seeking protection, are plausible ;
   58. Whereas it appears to the Court, after a careful examination of the
evidence and arguments presented by the Parties, that the title to sover-
eignty claimed by Costa Rica over the entirety of Isla Portillos is plausi-
ble ; whereas the Court is not called upon to rule on the plausibility of the
title to sovereignty over the disputed territory advanced by Nicaragua ;
whereas the provisional measures it may indicate would not prejudge any
title ; and whereas the Parties’ conflicting claims cannot hinder the exer-
cise of the Court’s power under its Statute to indicate such measures ;

  59. Whereas paragraph 6 of the third clause of the Cleveland Award of
22 March 1888 reads as follows :

17

20 	               certain activities (order 8 III 11)

        “The Republic of Costa Rica cannot prevent the Republic of Nica
     ragua from executing at her own expense and within her own territory
     such works of improvement, provided such works of improvement do
     not result in the occupation or flooding or damage of Costa Rica
     territory, or in the destruction or serious impairment of the navigation
     of the said River or any of its branches at any point where Costa Rica
     is entitled to navigate the same. The Republic of Costa Rica has the
     right to demand indemnification for any places belonging to her on
     the right bank of the River San Juan which may be occupied without
     her consent, and for any lands on the same bank which may be
     flooded or damaged in any other way in consequence of works of
     improvement.” (RIAA, Vol. XXVIII, p. 210.) ;

whereas Costa Rica contends that it has the right to request the suspen-
sion of the dredging operations on the San Juan River if they threaten
seriously to impair navigation on the Colorado River or to damage Costa
Rican territory ; whereas, relying on the second sentence of paragraph 6
of the third clause of that Award, quoted above, Nicaragua argues that,
if any damage results from the works to maintain and improve the San
Juan River, Costa Rica can only seek indemnification, and therefore that
Costa Rica, in the event of risk of harm, cannot obtain by means of pro-
visional measures a remedy which the Award would exclude on the mer-
its ; whereas Costa Rica responds that indemnification is not the only
remedy available to it ; whereas at this stage of the proceedings, the Court
finds that the rights claimed by Costa Rica are plausible ;

       Link between the Rights Whose Protection Is Being Sought
                      and the Measures Requested

   60. Whereas the first provisional measure requested by Costa Rica is
aimed at ensuring that Nicaragua will refrain from any activity “in the
area comprising the entirety of Isla Portillos” ; whereas the continuation
or resumption of the disputed activities by Nicaragua on Isla Portillos
would be likely to affect the rights of sovereignty which might be adjudged
on the merits to belong to Costa Rica ; whereas, therefore, a link exists
between these rights and the provisional measure being sought ;
   61. Whereas the second provisional measure requested by Costa Rica
concerns the suspension of Nicaragua’s “dredging programme in the
River San Juan adjacent to the relevant area” ; whereas there is a risk that
the rights which might be adjudged on the merits to belong to Costa Rica
would be affected if it were established that the continuation of the Nica-
raguan dredging operations on the San Juan River threatened seriously to
impair navigation on the Colorado River (see paragraph 59 above) or to
cause damage to Costa Rica’s territory ; whereas, therefore, there exists a
link between these rights and the provisional measure being sought ;

18

21 	                certain activities (order 8 III 11)

   62. Whereas the final provisional measure sought by Costa Rica is
aimed at ensuring that Nicaragua refrains “from any other action which
might prejudice the rights of Costa Rica, or which may aggravate or
extend the dispute before the Court” pending the “determination of this
case on the merits” ; whereas on a number of occasions the Court has
already indicated provisional measures ordering one or other of the par-
ties, or even both, to refrain from any action which would aggravate or
extend the dispute or make it more difficult to resolve (see, for example,
United States Diplomatic and Consular Staff in Tehran (United States
of America v. Iran), Provisional Measures, Order of 15 December 1979,
I.C.J. Reports 1979, p. 21, para. 47, point B ; Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Mea‑
sures, Order of 8 April 1993, I.C.J. Reports 1993, p. 24, para. 52, point B ;
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon
v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports
1996 (I), p. 24, para. 49, point 1) ; Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v. Uganda), Provisional Mea‑
sures, Order of 1 July 2000, I.C.J. Reports 2000, p. 129, para. 47, point (1)) ;
whereas “in those cases provisional measures other than measures direct-
ing the parties not to take actions to aggravate or extend the dispute or to
render more difficult its settlement were also indicated” (Pulp Mills on the
River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of
23 January 2007, I.C.J. Reports 2007 (I), p. 16, para. 49) ; whereas the
final provisional measure sought by Costa Rica, being very broadly
worded, is linked to the rights which form the subject of the case before
the Court on the merits, in so far as it is a measure complementing more
specific measures protecting those same rights ;

                                        *
                                    *       *

              Risk of Irreparable Prejudice and Urgency

   63. Whereas 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 example, Application of the Convention on the Prevention and Punish‑
ment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia
(Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993,
I.C.J. Reports 1993, p. 19, para. 34) ;
   64. Whereas 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 may be caused to the rights
in dispute before the Court has given its final decision (see, for example,

19

22 	                certain activities (order 8 III 11)

Questions relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009,
pp. 152-153, para. 62) ; and whereas the Court must therefore consider
whether such a risk exists in these proceedings ;

                                    *   *
  65. Whereas, in its Request for the indication of provisional measures,
Costa Rica states that “Nicaraguan armed forces continue to be present
on Isla Portillos in breach of Costa Rica’s sovereign rights” and that
Nicaragua “is continuing to damage the territory of Costa Rica, posing a
serious threat to its internationally protected wetlands and forests” ;
whereas it contends, moreover, that

      “Nicaragua[, which] is attempting to unilaterally adjust, to its own
      benefit, a River the right bank of which forms a valid, lawful and
      agreed border . . . cannot be permitted to continue to deviate the San
      Juan River through Costa Rica’s territory in this manner, so as to
      impose on Costa Rica and the Court a fait accompli” ;
   66. Whereas, during the course of the oral proceedings, Costa Rica
stated that it wished the status quo ante to be restored, pending the Court’s
judgment on the merits, and indicated that the following rights, which it
considers itself to possess, are under threat of irreparable prejudice as a
result of Nicaragua’s activities :
     “1. the right to sovereignty and territorial integrity ;
      2. the right not to have its territory occupied ;
      3. the right not to have its trees chopped down by a foreign force ;

      4. the right not to have its territory used for depositing dredging
         sediment or as the site for the unauthorized digging of a canal ;
         and
      5. the several rights corresponding to Nicaragua’s obligation not to
         dredge the San Juan if this affects or damages Costa Rica’s land,
         environment or the integrity and flow of the Colorado River” ;

   67. Whereas Costa Rica maintained that it “does not, at the present
stage, need to establish that its rights have actually been harmed irremedi-
ably” nor to “prove actual harm”, and that it is sufficient to establish
“that there is a risk of irreparable prejudice [being caused] to the rights in
dispute, and that the risk of such harm is sufficiently serious and immi-
nent that provisional measures are required to protect the rights” ;
   68. Whereas Costa Rica asserted that the works undertaken by Nica-
ragua at the site of the caño, in particular the felling of trees, the clearing
of vegetation, the removal of soil and the diversion of the waters of the
San Juan River, not only entail a violation of Costa Rica’s territorial

20

23 	               certain activities (order 8 III 11)

integrity, but will have the effect of causing flooding and damage to Costa
Rican territory, as well as geomorphological changes ; whereas, according
to Costa Rica, the dredging of the San Juan River carried out by Nicara-
gua will result in similar effects, as well as significantly reducing the flow
of the Colorado River ; and whereas it contended that the harm caused
will not merely be irreparable as such, but that it is Nicaragua’s intention
for it to be irreparable, because it is not doing this for temporary
purposes ;
   69. Whereas, moreover, Costa Rica affirms in its Request for the indi-
cation of provisional measures that the request “is of . . . real urgency”,
because of “the continued damage being inflicted on [its] territory” by
Nicaragua’s activities, in particular its repeated dredging of the San Juan
River ; whereas, according to Costa Rica, “[t]here is a real risk that . . .
action prejudicial to the rights of Costa Rica will continue and may sig-
nificantly alter the factual situation on the ground before the Court has
the opportunity to render its final decision on the questions for determi-
nation set out in the Application” ; whereas it adds that “[t]he ongoing
presence of Nicaraguan armed forces on Costa Rica’s territory is contrib-
uting to a political situation of extreme hostility and tension” and that
“[a] provisional measure ordering the withdrawal of Nicaraguan forces
from Costa Rican territory is . . . justified so as to prevent the aggravation
and/or extension of the dispute” ; and whereas, in the oral proceedings,
Costa Rica reaffirmed the urgent nature of its request ;

                                      *
   70. Whereas, during the oral proceedings, Nicaragua contended that it
acted within its own territory and caused no harm to Costa Rica ; whereas
it maintained that its activities, the environmental impact of which had
been duly assessed beforehand, were not likely to cause or aggravate the
damage feared by Costa Rica and that, in any case, the risk of harm was
not imminent ;
   71. Whereas Nicaragua asserted at the hearings that the cleaning and
clearing operations in respect of the caño were over and finished, and that
none of its armed forces were presently stationed on Isla Portillos ;
whereas, in a written reply to questions put by a Member of the Court at
the end of the hearings, Nicaragua confirmed these assertions, adding
that it did “not intend to send any troops or other personnel to the
region” contested by the Parties nor to “[establish] a military post there in
the future”, while the issue of the felling of trees and the dumping of sedi-
ment in certain areas along the caño “no longer arises”, since the opera-
tion to clean the latter is “over and finished” ;
   72. Whereas Nicaragua stated in its written replies that it does not
“intend to have any personnel stationed in [the disputed] area” ; whereas it
nevertheless added that “[t]he only operation currently being carried out
there is the replanting of trees” and that “[t]he Ministry of the Environ-
ment of Nicaragua (MARENA) will send inspectors to the site periodi-

21

24 	               certain activities (order 8 III 11)

cally in order to monitor the reforestation process and any changes which
might occur in the region, including the Harbor Head Lagoon” ; whereas
Nicaragua also observed that “[t]he caño is no longer obstructed” and fur-
ther stated that “[i]t is possible to patrol the area on the river, as has
always been the case, for the purposes of enforcing the law, combating
drug trafficking and organized crime, and protecting the environment” ;

                                      *
   73. Whereas it is in the light of this information that the first provi-
sional measure requested by Costa Rica in its submissions presented at
the end of its second round of oral observations should be considered,
namely, that
     “[p]ending the determination of this case on the merits, Nicaragua
     shall not, in the area comprising the entirety of Isla Portillos, that is
     to say, across the right bank of the San Juan River and between the
     banks of the Laguna los Portillos (also known as Harbor Head
     Lagoon) and the Taura River (‘the relevant area’) :
     (1) station any of its troops or other personnel ;
     (2) engage in the construction or enlargement of a canal ;
     (3) fell trees or remove vegetation or soil ;

     (4) dump sediment” ;
   74. Whereas Nicaragua’s written responses set out above (see para-
graph 71) indicate that the work in the area of the caño has come to an
end ; whereas the Court takes note of that ; whereas the Court therefore
concludes that, in the circumstances of the case as they now stand, there
is no need to indicate the measures numbered (2), (3) and (4) as set out in
paragraph 73 above ;
   75. Whereas those written responses nevertheless also show that Nica-
ragua, while stating that “[t]here are no Nicaraguan troops currently sta-
tioned in the area in question” and that “Nicaragua does not intend to
send any troops or other personnel to the region” (see paragraph 71
above), does intend to carry out certain activities, if only occasionally, in
the disputed territory, including on the caño (see paragraph 72 above) ;
whereas the Court recalls that there are competing claims over the dis-
puted territory ; whereas this situation creates an imminent risk of irrepa-
rable prejudice to Costa Rica’s claimed title to sovereignty over the said
territory and to the rights deriving therefrom ; whereas this situation
moreover gives rise to a real and present risk of incidents liable to cause
irremediable harm in the form of bodily injury or death ;

   76. Whereas the Court concludes under these circumstances that provi-
sional measures should be indicated ; whereas it points out that it has the

22

25 	               certain activities (order 8 III 11)

power under its Statute to indicate provisional measures that are in whole
or in part other than those requested, or measures that are addressed to the
party which has itself made the request, as Article 75, paragraph 2, of the
Rules of Court expressly states (see, for example, Application of the Conven‑
tion on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Mea‑
sures, Order of 8 April 1993, I.C.J. Reports 1993, p. 22, para. 46) ;
   77. Whereas, given the nature of the disputed territory, the Court con-
siders that, subject to the provisions in paragraph 80 below, each Party
must refrain from sending to, or maintaining in the disputed territory,
including the caño, any personnel, whether civilian, police or security,
until such time as the Court has decided the dispute on the merits or the
Parties have come to an agreement on this subject ;
   78. Whereas, in order to prevent the development of criminal activity
in the disputed territory in the absence of any police or security forces of
either Party, each Party has the responsibility to monitor that territory
from the territory over which it unquestionably holds sovereignty, i.e., in
Costa Rica’s case, the part of Isla Portillos lying east of the right bank of
the caño, excluding the caño ; and, in Nicaragua’s case, the San Juan
River and Harbor Head Lagoon, excluding the caño ; and whereas it shall
be for the Parties’ police or security forces to co‑operate with each other
in a spirit of good neighbourliness, in particular to combat any criminal
activity which may develop in the disputed territory ;

   79. Whereas the Court observes that there are two wetlands of interna-
tional importance, within the meaning of the Ramsar Convention, in the
boundary area in question ; whereas, acting pursuant to Article 2 of that
Convention, Costa Rica has “designate[d]” the “Humedal Caribe Nor-
este” wetland “for inclusion in [the] List of Wetlands of International
Importance . . . maintained by the [continuing] bureau” established by the
Convention, and whereas Nicaragua has done likewise in respect of the
“Refugio de Vida Silvestre Río San Juan” wetland, of which Harbor
Head Lagoon is part ; whereas the Court reminds the Parties that, under
Article 5 of the Ramsar Convention :
     “[t]he Contracting Parties shall consult with each other about imple-
     menting obligations arising from the Convention especially in the case
     of a wetland extending over the territories of more than one Contract-
     ing Party or where a water system is shared by Contracting Parties.
     They shall at the same time endeavour to coordinate and support
     present and future policies and regulations concerning the conserva-
     tion of wetlands and their flora and fauna” ;

  80. Whereas the disputed territory is moreover situated in the
“Humedal Caribe Noreste” wetland, in respect of which Costa Rica bears
obligations under the Ramsar Convention ; whereas the Court considers
that, pending delivery of the Judgment on the merits, Costa Rica must be

23

26 	              certain activities (order 8 III 11)

in a position to avoid irreparable prejudice being caused to the part of
that wetland where that territory is situated ; whereas for that purpose
Costa Rica must be able to dispatch civilian personnel charged with the
protection of the environment to the said territory, including the caño,
but only in so far as it is necessary to ensure that no such prejudice be
caused ; and whereas 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 ;

                                      *
   81. Whereas the second provisional measure requested by Costa Rica
in its submissions presented at the conclusion of the hearings is an order
requiring Nicaragua to “suspend its ongoing dredging programme in the
River San Juan adjacent to the relevant area” ; whereas in support of this
request Costa Rica asserts that the programme creates an imminent risk
of irreparable prejudice to its environment, in particular to the flow, and
hence navigability, of the Colorado River, as well as to the hydrodynamic
balance of the area’s waterways, which Nicaragua disputes ;

   82. Whereas it cannot be concluded at this stage from the evidence
adduced by the Parties that the dredging of the San Juan River is creating
a risk of irreparable prejudice to Costa Rica’s environment or to the flow
of the Colorado River ; whereas nor has it been shown that, even if there
were such a risk of prejudice to rights Costa Rica claims in the present
case, the risk would be imminent ; and whereas the Court concludes from
the foregoing that in the circumstances of the case as they now stand the
second provisional measure requested by Costa Rica should not be indi-
cated ;

                                      *
  83. Whereas, in the light of what the Court has already said on the
subject of the final provisional measure requested by Costa Rica (see
paragraph 62 above) and of the Court’s conclusions above on the subject
of the specific provisional measures to be indicated, it is in addition
appropriate in the circumstances to indicate complementary measures,
calling on both Parties to refrain from any act which may aggravate or
extend the dispute or render it more difficult of solution ;

                                      *
                                  *       *

   84. Whereas the Court’s “orders on provisional measures under Arti-
cle 41 [of the Statute] have binding effect” (LaGrand (Germany v. United

24

27 	               certain activities (order 8 III 11)

States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109) and
thus create international legal obligations which both Parties are required
to comply with (see, for example, Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Rep
orts 2005, p. 258, para. 263)) ;

                                       *
                                   *       *
  85. Whereas the decision given in the present proceedings in no way
prejudges the question of the jurisdiction of the Court to deal with the
merits of the case or any questions relating to the admissibility of the
Application, or relating to the merits themselves ; and whereas it leaves
unaffected the right of the Governments of Costa Rica and Nicaragua to
submit arguments in respect of those questions ;

                                       *
                                   *       *
  86. For these reasons,
  The Court,
  Indicates the following provisional measures :
  (1) Unanimously,
   Each Party shall refrain from sending to, or maintaining in the d
                                                                    isputed
territory, including the caño, any personnel, whether civilian, police or
security ;
  (2) By thirteen votes to four,
   Notwithstanding point (1) above, Costa Rica may dispatch civilian
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 ;
  in favour : President Owada ; Vice-President Tomka ; Judges Koroma, Al-
    Khasawneh, Simma, Abraham, Keith, Bennouna, Cançado Trindade,
    Yusuf, Greenwood, Donoghue ; Judge ad hoc Dugard ;
  against : Judges Sepúlveda‑Amor, Skotnikov, Xue ; Judge ad hoc Guillaume ;

  (3) Unanimously,
  Each Party shall refrain from any action which might aggravate or
extend the dispute before the Court or make it more difficult to
resolve ;

25

28 	              certain activities (order 8 III 11)

  (4) Unanimously,
  Each Party shall inform the Court as to its compliance with the above
provisional measures.

  Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this eighth day of March, two thousand
and eleven, 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 Nicaragua,
respectively.

                                            (Signed) Hisashi Owada,
                                                        President.
                                          (Signed) Philippe Couvreur,
                                                        Registrar.

   Judges Koroma and Sepúlveda-Amor append separate opinions to
the Order of the Court ; Judges Skotnikov, Greenwood and Xue append
declarations to the Order of the Court ; Judge ad hoc Guillaume appends
a declaration to the Order of the Court ; Judge ad hoc Dugard appends
a separate opinion to the Order of the Court.

                                                       (Initialled) H.O.
                                                       (Initialled) Ph.C.

26