                                                                                435

                                  DÉCLARATION COMMUNE
                        DE MM. LES JUGES TOMKA, GAJA ET GEVORGIAN

                 [Traduction]
                     Différend devant relever prima facie du champ d’application du traité contenant
                 la clause compromissoire –– Elements à prendre en considération aux fins de
                 l’interdiction de la discrimination raciale –– « Origine nationale » non synonyme de
                 « nationalité » –– Discrimination fondée sur la nationalité ne relevant pas prima
                 facie du champ d’application de la convention internationale sur l’élimination de
                 toutes les formes de discrimination raciale.

                    Pour les raisons exposées ci‑après, nous n’avons pas été en mesure de
                 nous rallier à l’ordonnance rendue par la Cour. Notre vote ne signifie
                 toutefois pas que nous ne soyons pas sensibles aux considérations huma-
                 nitaires qui ont conduit la Cour à demander que les familles qataro‑
                 émiriennes puissent continuer de vivre ensemble ou que celles séparées
                 puissent se réunir, que les étudiants qatariens soient à même de pour-
                 suivre leurs études aux Emirats arabes unis ou ailleurs et que les Qata-
                 riens aient, si nécessaire, accès aux tribunaux et autres organes judiciaires
                 émiriens. Nous espérons que les droits de ces personnes sont respectés.
                 Cependant, nous estimons que certaines conditions juridiques devant être
                 remplies pour que la Cour puisse indiquer des mesures conservatoires ne
                 l’étaient pas dans la présente affaire.
                    1. Pour déterminer si elle a compétence prima facie et si les droits invo-
                 qués par la Partie demanderesse sont plausibles aux fins de l’indication de
                 mesures conservatoires, la Cour doit établir si le différend relève à pre-
                 mière vue du champ d’application du traité contenant la clause compro-
                 missoire qui lui confère compétence et si les droits revendiqués sont
                 plausiblement fondés sur ce traité. C’est ainsi que, par exemple, dans l’af-
                 faire relative aux Immunités et procédures pénales (Guinée équatoriale
                 c. France), la Cour a conclu « qu’il n’exist[ait] pas, prima facie, de diffé-
                 rend entre les Parties susceptible d’entrer dans les prévisions de la conven-
                 tion contre la criminalité transnationale organisée, et donc de concerner
                 l’interprétation ou l’application de l’article 4 de celle-ci » (mesures conser-
                 vatoires, ordonnance du 7 décembre 2016, C.I.J. Recueil 2016 (II), p. 1160,
                 par. 50). De même, dans l’affaire relative à l’Application de la convention
                 internationale pour la répression du financement du terrorisme et de la
                 convention internationale sur l’élimination de toutes les formes de discrimi-
                 nation raciale (Ukraine c. Fédération de Russie), la Cour a conclu que
                 « les conditions requises pour l’indication de mesures conservatoires rela-
                 tivement aux droits invoqués par l’Ukraine sur le fondement de la
                 [convention internationale pour la répression du financement du terro-
                 risme] n[’étaient] pas remplies » (mesures conservatoires, ordonnance du
                 19 avril 2017, C.I.J. Recueil 2017, p. 132, par. 76).

                                                                                33

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                                   application de la ciedr (décl. comm.)                     436

                      2. Dans la présente affaire, le Qatar fait état de certains manquements,
                 par les Emirats arabes unis, à des obligations découlant de la convention
                 internationale sur l’élimination de toutes les formes de discrimination
                 raciale (ci-après, la « CIEDR »), dont l’article 22 contient une clause com-
                 promissoire visant les différends relatifs à l’interprétation ou à l’applica-
                 tion de la convention.
                      3. Le traitement discriminatoire que le Qatar fait grief aux Emirats
                 arabes unis de faire subir à des personnes serait motivé par la nationalité
                 qatarienne des intéressés. Or la CIEDR ne s’applique qu’à certains motifs
                 de discrimination bien précis, à savoir « la race, la couleur, l’ascendance
                 ou l’origine nationale ou ethnique ». La nationalité n’est pas citée au
                 paragraphe 1 de l’article premier au nombre des motifs de discrimination
                 proscrits par la CIEDR.
                      4. En désignant « l’origine nationale » comme l’un des motifs illicites de
                 discrimination, la convention ne fait pas référence à la nationalité. Selon
                 nous, les deux notions ne sont pas identiques et ne sauraient être considé-
                 rées comme synonymes. Les travaux préparatoires étayent ce point de vue
                 et indiquent que les Etats ont voulu exclure du champ d’application de la
                 CIEDR la différenciation fondée sur la nationalité. Si, lorsque le texte du
                 projet de convention fut débattu au sein de la Troisième Commission de
                 l’Assemblée générale, un amendement visant à préciser que « l’expression
                 « origine nationale » ne désign[ait] ni la « nationalité » ni la « citoyen-
                 neté » » fut retiré par ses auteurs, il ne le fut toutefois qu’au profit du texte
                 définitif de l’article premier, dont il fut à l’évidence considéré qu’il clari-
                 fiait tout autant la situation (Nations Unies, doc. A/6181, p. 17). L’ab-
                 sence de référence à la nationalité s’explique aisément. Considérer que la
                 CIEDR couvre également la discrimination fondée sur la nationalité
                 reviendrait à faire de la convention un instrument de vaste portée qui
                 contiendrait une clause prévoyant que, s’agissant du large éventail de
                 droits civils protégés par la convention, l’Etat hôte doit traiter tous les
                 étrangers de la même manière que ses nationaux, lesquels jouissent du
                 traitement le plus favorable.
                      5. Le Comité pour l’élimination de la discrimination raciale a estimé ––
                 en particulier au paragraphe 4 de sa recommandation générale XXX
                 concernant la discrimination contre les non‑ressortissants –– que la
                 convention devait être interprétée comme visant également les différences
                 de traitement fondées sur la nationalité. Cela étant, le Comité n’a pas
                 déclaré de manière aussi explicite que la nationalité pouvait être assimilée
                 à l’origine nationale. Il a simplement désigné aux fins de l’interdiction de
                 la discrimination certaines conditions propres à la nationalité et à l’immi-
                 gration qui ne s’appliquent pas lorsque les motifs de discrimination
                 énumérés au paragraphe 1 de l’article premier entrent en jeu. Il serait dif-
                  ficile d’accorder du poids à ce point de vue du Comité étant donné que
                  celui-ci ne justifie d’aucune façon son interprétation selon laquelle les dif-
                   férences de traitement fondées sur la nationalité constituent une discrimi-
                   nation raciale au sens de la CIEDR, fût-ce seulement dans une certaine
                   mesure.

                                                                                34

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                                  application de la ciedr (décl. comm.)                   437

                    6. Il est vrai que, si le paragraphe 2 de l’article premier indique que la
                 CIEDR ne s’applique pas aux différences de traitement entre ressortis-
                 sants et non-ressortissants, il n’exclut pas que la convention s’applique à
                 la différenciation entre deux groupes d’étrangers. Néanmoins, quand bien
                 même tel serait le cas, pour qu’une discrimination relève de la CIEDR, il
                 faudrait qu’elle réponde à l’un des motifs énumérés au paragraphe 1 de
                 l’article premier. Des différences de traitement appliquées à des personnes
                 d’une nationalité donnée peuvent également obéir à certaines raisons liées
                 à l’origine ethnique et donc tomber sous le coup de la CIEDR, une possi-
                 bilité qui n’a cependant pas été évoquée par le Qatar.
                    7. Ces considérations nous amènent à conclure que le différend dont la
                 Cour est saisie n’entre pas prima facie dans le champ d’application de la
                 CIEDR et que les droits revendiqués sur le fondement de cette conven-
                 tion ne sont pas plausibles. Cela ne signifie pas que le comportement des
                 Emirats arabes unis ne puisse être jugé contraire à d’autres règles de droit
                 international ; le fait est simplement que, dans la présente affaire, la Cour
                 n’est appelée à examiner que les demandes formulées sur la base de la
                 CIEDR.

                                                                  (Signé) Peter Tomka.
                                                                  (Signé) Giorgio Gaja.
                                                                (Signé) Kirill Gevorgian.

                                                                                35

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                      842

                              SEPARATE OPINION OF JUDGE AD HOC DUGARD

                                                  table of contents

                                                                                Paragraphs
                         I. Separate Opinion	                                                 1‑2
                        II. Territorial Integrity	                                              3
                       III. Protection of the Environment	                                    4‑5
                       IV. The Principle of Prevention and the Source of the Envir
                           onmental Impact Assessment Obligation	                            6‑11
                        V. Environmental Impact Assessment : General Rule or
                           Customary Rule	                                                 12‑17
                       VI. Rules relating to an Environmental Impact Assessment	            18‑19
                      VII. Construction of a Road and the Obligation to Conduct an
                           Environmental Impact Assessment	                                    20
                      VIII. Certain Activities and the Obligation to Conduct an
                            Environmental Impact Assessment in respect of Costa
                            Rica’s Wetlands	                                                21‑35
                       IX. Ramsar Convention	                                               36‑45

                                                           *

                                                 I. Separate Opinion

                         1. I am in agreement with the Court’s decisions on what I consider to
                      be three of the principal issues : Nicaragua’s violation of Costa Rica’s ter-
                      ritorial sovereignty ; Costa Rica’s failure to perform an environmental
                      impact assessment (EIA) before embarking on the construction of
                      Route 1856 along the San Juan River ; and the failure of Nicaragua to
                      prove that the construction of Route 1856 caused significant transbound-
                      ary harm. I dissent from the Court’s decision on two issues : first, the
                      rejection of Costa Rica’s complaint that Nicaragua failed to carry out a
                      proper environmental impact assessment for its programme of dredging
                      of the San Juan River and to consult with Costa Rica on this subject, as
                      required by the Ramsar Convention ; second, the rejection of Costa Rica’s
                      request for an order of costs arising from Nicaragua’s construction of
                      two caños in 2013. As I am in broad agreement with the Court, I consider
                      that my opinion is more accurately to be viewed as a separate opinion.

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                      843 	   certain activities and construction of a road (sep. op. dugard)

                        2. I will address the first issue on which I dissent below, after some
                      comments on Nicaragua’s violation of Costa Rica’s territorial integrity.
                      In the case of the second issue I join Judges Tomka, Greenwood and
                      Sebutinde in a joint declaration on the ordering of costs.

                                              II. Territorial Integrity

                         3. I agree with the Court’s finding that Nicaragua has violated
                       Costa Rica’s territorial sovereignty by excavating three caños and estab-
                      lishing a military presence in part of that territory. I believe that Nicara-
                      gua further violated Costa Rica’s territorial sovereignty by encouraging
                      members of the Guardabarranco Environmental Movement to trespass
                      on Costa Rican territory. (See my dissenting opinion in Certain Activities
                      Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicara‑
                      gua) and Construction of a Road in Costa Rica along the San Juan River
                      (Nicaragua v. Costa Rica), Provisional Measures, Order of 16 July 2013,
                      I.C.J. Reports 2013, pp. 275‑276, paras. 13‑14.) The Court has on previ-
                      ous occasions emphasized that the principle of territorial integrity is an
                      important feature of the international legal order (Accordance with Inter‑
                      national Law of the Unilateral Declaration of Independence in Respect of
                      Kosovo, Advisory Opinion, I.C.J Reports 2010 (II), p. 437, para. 80). This
                      principle is enshrined in the Charter of the United Nations and the
                      Charter of the Organization of American States and was reiterated by
                       the General Assembly in resolution 2625 (XXV) on the Declaration of
                       Principles of International Law concerning Friendly Relations and Co-
                       operation among States. In these circumstances I believe that the Court
                       should have placed greater emphasis on the serious nature of Nicaragua’s
                       violation of the territorial integrity of Costa Rica.

                                        III. Protection of the Environment

                         4. The protection of the environment featured prominently in both
                      Certain Activities and Construction of a Road. In both cases the Court
                      was required to address the questions of action that might result in sig-
                      nificant transboundary harm and the failure to produce an environmental
                      impact assessment in respect of projects that risk causing significant
                      transboundary harm. I agree with the Court that neither Costa Rica nor
                      Nicaragua proved that the actions of their neighbour had caused signifi-
                      cant transboundary harm. I also agree with the finding of the Court, and
                      its reasoning for this finding, that the evidence showed that Costa Rica
                      had breached a rule of international law by failing to carry out an envi-

                      182

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                      844 	   certain activities and construction of a road (sep. op. dugard)

                      ronmental impact assessment when it embarked on the construction of
                      the road along the San Juan River. I disagree, however, with the finding
                      of the Court that Nicaragua was not obliged to conduct an environmen-
                      tal impact assessment in respect of its project for dredging the
                      San Juan River and that it was not obliged to consult with Costa Rica on
                      this subject. This disagreement, which relates to both the factual findings
                      and the reasoning of the Court, provides the basis for my dissent. In sum-
                      mary, I believe that the Court erred in its findings of fact and that it failed
                      to apply the same reasoning in Certain Activities that it applied in Con‑
                      struction of a Road. I also believe that the Court erred in its interpretation
                      of the Ramsar Convention on the duty to consult.

                         5. Before examining the Court’s finding and reasoning on the absence
                      of an obligation on the part of Nicaragua to conduct an environmental
                      impact assessment when it embarked on the dredging of the San Juan River
                      it is necessary to consider the source, nature and content of the obligation
                      to conduct an environmental impact assessment.

                             IV. The Principle of Prevention and the Source of the
                                 Environmental Impact Assessment Obligation

                         6. The main purpose of environmental law is to prevent harm to the
                      environment. This is because of the “often irreversible character of dam-
                      age to the environment and of the limitations inherent in the very mecha-
                      nism of reparation of this type of damage” (Gabčíkovo‑Nagymaros Project
                      (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78, para. 140). A
                      cluster of principles seek to achieve this goal, including the principle of
                      prevention, the precautionary principle, the principle of co‑operation,
                      notification and consultation and the obligation of due diligence.
                         7. The obligation of due diligence flows from the principle of preven-
                      tion. This is emphasized by the International Law Commission’s Com-
                      mentary on Article 3 of its Draft Articles on the Prevention of
                      Transboundary Harm from Hazardous Activities which declares “[t]he
                      obligation of the State of origin to take preventive or minimization mea-
                      sures is one of due diligence” (Yearbook of the International Law Commis‑
                      sion (YILC), 2001, Vol. II, Part Two, p. 154, para. 7 ; see also, p. 155,
                      para. 17). The duty of due diligence therefore is the standard of conduct
                      required to implement the principle of prevention.

                         8. The principle of prevention is also implemented through a num-
                      ber of specific obligations, which include the obligation to carry out an
                      environmental impact assessment. These obligations must be carried out
                      in accordance with the due diligence standard. Thus if an environmen-
                      tal impact assessment has been carried out, but not with sufficient care

                      183

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                      845 	   certain activities and construction of a road (sep. op. dugard)

                      in the circumstances, a State may be found to be in breach of its obliga-
                      tion to do an environmental impact assessment 1. That due diligence and
                      the obligation to conduct an environmental impact assessment are legal
                      tools employed to ensure the prevention of significant transboundary
                      harm is confirmed by the Court in its present Judgment when it
                      states that “a State’s obligation to exercise due diligence in preventing
                      significant transboundary harm” requires it to conduct a screening exer-
                      cise to determine whether it is required to do an environmental impact
                      assessment prior to undertaking an activity. Such an obligation will
                      arise if it ascertains that such activity has “the potential adversely to
                      affect the environment of another State” (Judgment, para. 153 ; see also
                      para. 104).
                         9. A State’s obligation to conduct an environmental impact assessment
                      is an independent obligation designed to prevent significant transbound-
                      ary harm that arises when there is a risk of such harm. It is not an obliga-
                      tion dependent on the obligation of a State to exercise due diligence in
                      preventing significant transboundary harm. Due diligence is the standard
                      of conduct that the State must show at all times to prevent significant
                      transboundary harm, including in the decision to conduct an environ-
                      mental impact assessment, the carrying out of the environmental impact
                      assessment and the continued monitoring of the activity in question. The
                      International Law Commission views the obligation to conduct an envi-
                      ronmental impact assessment as an independent obligation (Draft Arti-
                      cles on Prevention of Transboundary Harm from Hazardous Activities,
                      YILC, 2001, Vol. II, Part Two, Art. 7, p. 157), as do the Rio Declaration
                      (Principle 17), the Convention on Biological Diversity (Art. 14) and the
                      Convention on Environmental Impact Assessment in a Transboundary
                      Context (“Espoo Convention”) (Art. 2). None of these instruments men-
                      tions due diligence in their formulation of the obligation to conduct an
                      EIA. The decision of the Court in Pulp Mills on the River Uruguay invokes
                      the principles of prevention, vigilance and due diligence as a basis for an
                      environmental impact assessment when it states that “due diligence, and
                      the duty of vigilance and prevention which it implies” would not have
                      been exercised if a State embarking on an activity that might cause sig-
                      nificant transboundary harm failed to carry out an environmental impact
                      assessment (Pulp Mills on the River Uruguay (Argentina v. Uruguay),
                      Judgment, I.C.J. Reports 2010 (I), p. 83, para. 204). But the Court then
                      explains that the content of the environmental impact assessment obliga-
                      tion is to be assessed “having regard . . . to the need to exercise due dili-
                      gence in conducting such an assessment” (ibid., para. 205). This means
                      that the due diligence obligation informs the environmental impact assess-
                      ment obligation, so that, in assessing whether the duty of prevention has
                      been satisfied, and in determining its necessary content, the Court will
                      apply a due diligence standard. Due diligence is therefore the standard of

                        1 See Responsibilities and Obligations of States with respect to Activities in the Area,

                      Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 49, para. 141.

                      184

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                      846 	   certain activities and construction of a road (sep. op. dugard)

                      care required when carrying out the environmental impact assessment
                      and not the obligation itself.

                         10. The danger of viewing the due diligence obligation as the source of
                      the obligation to perform an environmental impact assessment is that it
                      allows a State to argue, retrospectively, that because no harm has been
                      proved at the time of the legal proceedings, no duty of due diligence arose
                      at the time the project was planned. This backward looking approach was
                      adopted by the Court in Certain Activities but not in Construction of a
                      Road. If the obligation to perform an environmental impact assessment is
                      viewed as an independent obligation it is clear that a State must ascertain
                      the risk at the time the project is planned and prior to embarking upon
                      the project. Moreover, it is clear that the threshold for making such a
                      decision is not the high standard for determining whether significant
                      transboundary harm has been caused but the lower standard of risk
                      assessment — even if it is proved later that no significant transboundary
                      harm has been caused. An environmental impact assessment not only
                      ensures that the principle of prevention is adhered to but also encourages
                      environmental consciousness on the part of States by requiring them to
                      assess the risk of harm even if no harm is proved after the project has
                      been undertaken.

                         11. As the Court here has affirmed, Pulp Mills makes clear that the obli-
                      gation to do an environmental impact assessment exists as a separate legal
                      obligation from due diligence. Moreover, policy considerations confirm that
                      the obligation to perform an environmental impact assessment must be
                      viewed as an obligation separate from that of due diligence. The obligation
                      of due diligence is vague and lacking in clear content or procedural rules. It
                      is an obligation that can be applied either prospectively or retrospectively —
                      as shown by the reasoning in Certain Activities. The obligation to conduct
                      an environmental impact assessment, on the other hand, imposes a specific
                      obligation on States to examine the circumstances surrounding a particular
                      project when it is planned and before it is implemented. It is characterized
                      by certainty whereas due diligence is a more open‑textured obligation that
                      could potentially be satisfied in a number of different ways.

                                       V. Environmental Impact Assessment :
                                         General Rule or Customary Rule

                         12. The Court has chosen to describe the obligation to conduct a
                      transboundary environmental impact assessment concerning activities
                      carried out within a State’s jurisdiction that risk causing significant harm
                      to other States as an obligation under “general international law”. This

                      185

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                      847 	   certain activities and construction of a road (sep. op. dugard)

                      term is used in both Certain Activities (paras. 101, 104) and Construction
                      of a Road (paras. 152, 162, 168, 229 (6)). In so doing the Court has care-
                      fully followed the language employed by the Court in Pulp Mills when it
                      stated
                            “it may now be considered a requirement under general international
                            law to undertake an environmental impact assessment where there is
                            a risk that the proposed industrial activity may have a significant
                            adverse impact in a transboundary context in particular on a shared
                            resource” (Pulp Mills on the River Uruguay (Argentina v. Uruguay),
                            Judgment, I.C.J. Reports 2010 (I), p. 83, para. 204).

                         13. As the term “general international law” does not appear in the
                      sources of international law listed in Article 38 (1) of the Court’s Statute
                      there will inevitably be some debate about the precise meaning to be
                      attached to the term.
                         14. “General international law” cannot be equated with “general prin-
                      ciples of law recognized by civilized nations” referred to in Arti-
                      cle 38 (1) (c) in the present context as the Court has accepted the
                      obligation to conduct an environmental impact assessment as an obliga-
                      tion that gives rise to a cause of action (Judgment, para. 162). Were the
                      term to be interpreted as synonymous with “general principles of law” the
                      question would be raised whether such a “general principle of law” might
                      found a cause of action and require the Court to enter this jurisprudential
                      minefield.
                         15. General principles fall largely into the categories of rules of evi-
                      dence or procedure or are used as a defence (e.g., res judicata). Abuse of
                      procedure has been invoked as a general principle in a number of cases
                      before the Court but the Court has never found the conditions for an
                      application of the principle to be fulfilled 2. That a general principle of law
                      might give rise to a cause of action cannot be discounted. In Factory at
                      Chorzów the Court declared that “it is a principle of international law,
                      and even a general conception of law, that any breach of an engagement
                      involves an obligation to make reparation” (Factory at Chorzów, Merits,
                      Judgment No. 13, 1928, P.C.I.J, Series A, No. 17, p. 29). However, that
                      obligation to pay reparation was not an independent cause of action but
                      a secondary obligation that arose only after the determination of a breach
                      of some other obligation. On the other hand, there is some authority for
                      the proposition that a general principle cannot be construed as a separate
                      obligation. In Mavrommatis Jerusalem Concessions (Greece v. United
                      Kingdom), the Permanent Court of International Justice stated :

                              “It is true that the Claimant has maintained that the provision of
                            the Protocol should be supplemented by certain principles taken from
                         2 A. Zimmermann et al. (eds.), Statute of the International Court of Justice : A Commen‑

                      tary, 2nd ed., 2012, pp. 904‑905.

                      186

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                      848 	   certain activities and construction of a road (sep. op. dugard)

                            general international law ; the Court, however, considers that Proto-
                            col XII is complete in itself, for a principle taken from general inter-
                            national law cannot be regarded as constituting an obligation
                            contracted by the Mandatory except in so far as it has been expressly
                            or implicitly incorporated in the Protocol.” (P.C.I.J., Series A, No. 5,
                            1925, p. 27.)
                         16. What meaning then is to be attached to the term “general interna-
                      tional law” which the International Court has used in Pulp Mills and
                      other decisions ? Possibly it includes general international conventions,
                      particularly those that codify principles of international law ; and widely
                      accepted judicial decisions, particularly decisions of the International
                      Court of Justice. Certainly it includes both customary international law
                      and general principles of law within the meaning of Article 38 (1) (c)
                      and (d) of the Court’s Statute. In the present case I understand the term
                      “general international law” to denote a rule of customary international
                      law requiring an environmental impact assessment to be carried out
                      where there is a risk of transboundary harm.

                         17. There can be little doubt that there is an obligation under custom-
                      ary international law to conduct an environmental impact assessment
                      when there is a risk of significant transboundary harm. The ITLOS Sea-
                      bed Disputes Chamber has held that there is a “general obligation under
                      customary international law” to conduct such an assessment 3. Fourteen
                      years ago, the International Law Commission stated in its Draft Articles
                      on Prevention of Transboundary Harm from Hazardous Activities that
                      “the practice of requiring an environmental impact assessment has
                      become very prevalent”, citing the laws of several developed States in
                      support of such an obligation and declaring that some 70 developing
                      countries had legislation of some kind on this subject (Commentary on
                      Article 7, para. 4, YILC, 2001, Vol. II, Part Two, p. 158). These Draft
                      Articles have been commended by the General Assembly of the
                      United Nations (resolution of 6 December 2007, UN doc. A/Res/62/68,
                      para. 4). In addition, a growing number of multilateral conventions rec-
                      ognize the obligation to conduct an environmental impact assessment.
                      See, in particular, the Convention on Environmental Impact Assessment
                      in a Transboundary Context (“Espoo Convention”), the Antarctic Treaty
                      on Environmental Protection (the Antarctic Protocol), the Convention
                      on the Protection and Use of Transboundary Watercourses and Interna-
                      tional Lakes (Art. 6 (1) (b)), the Convention on Biological Diversity
                      (Art. 14), and the Convention of the Law of the Sea (Art. 206). The writ-
                      ings of jurists lend strong support to such an obligation under customary
                      international law. Significantly, neither Costa Rica or Nicaragua has
                      denied such an obligation as binding on them although in their pleadings

                        3 Responsibilities and Obligations of States with respect to Activities in the Area, Advisory

                      Opinion, 1 February 2011, ITLOS Reports 2011, p. 50, para. 145.

                      187

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                      849 	   certain activities and construction of a road (sep. op. dugard)

                      they followed Pulp Mills and used the language of “general international
                      law”. There was no argument as to what this term meant and it was
                      apparently assumed that it was a synonym for custom.

                            VI. Rules relating to an Environmental Impact Assessment

                         18. In Pulp Mills the Court stated that general international law does
                      not “specify the scope and content of an environmental impact assess-
                      ment” with the result “that it is for each State to determine in its domestic
                      legislation or in the authorization process for the project, the specific con-
                      tent of the environmental impact assessment required in each case”
                      (I.C.J. Reports 2010 (I), p. 83, para. 205). This dictum, which is reaf-
                      firmed by the Court in the present case (Judgment, para. 104), has on
                      occasion been interpreted as meaning that the environmental impact
                      assessment obligation has no independent content and that there is sim-
                      ply a renvoi to domestic law 4. This is incorrect. Obviously there are some
                      matters relating to the carrying out of an environmental impact assess-
                      ment which must be left to domestic law. These include the identity of the
                      authority responsible for conducting the examination, the format of the
                      assessment, the time frame and the procedures to be employed. But there
                      are certain matters inherent in the nature of an environmental impact
                      assessment that must be considered if it is to qualify as an environmental
                      impact assessment and to satisfy the obligation of due diligence in the
                      preparation of an environmental impact assessment. This is made clear
                      by the International Law Commission in its Commentary on Article 7 of
                      its Draft Articles on the Prevention of Transboundary Harm from Haz-
                      ardous Activities which declares that an environmental impact assessment
                      should relate the risk involved in an activity “to the possible harm to
                      which the risk could lead”, contain “an evaluation of the possible trans-
                      boundary harmful impact of the activity”, and include an assessment of
                      the “effects of the activity not only on persons and property, but also on
                      the environment of other States” (YILC, 2001, Vol. II, Part Two,
                      pp. 158‑159, paras. 6‑8).

                        19. In the present case the Court has recognized that the following
                      rules are inherent in the nature of an environmental impact assessment.
                      An environmental impact assessment must be undertaken prior to the
                      implementation of the activity in question (Judgment, paras. 104, 153,
                      159, 161 and 168). The State undertaking an activity must assess the risk

                        4 See, for instance, the statement of the Sea-bed Disputes Chamber of ITLOS in its

                      Advisory Opinion of 2011 (footnote 1 above), p. 51, para. 149.

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                      of significant transboundary harm prior to implementing the activity “on
                      the basis of an objective evaluation of all the relevant circumstances”
                      (Judgment, para. 153). The burden of proof in showing that an environ-
                      mental impact assessment or similar preliminary assessment of the risk
                      involved has been done is upon the State undertaking the activity (ibid.,
                      para. 154). The circumstances of the particular environment must be con-
                      sidered in assessing the threshold for deciding whether an environmental
                      impact assessment is required (ibid., paras. 104 and 155). The fact that the
                      activity is conducted in a Ramsar protected site “heightens the risk of
                      significant damage because it denotes that the receiving environment is
                      particularly sensitive” (ibid., para. 155). (From this it follows that the
                      threshold for deciding whether to conduct an environmental impact
                      assessment is lower in the case of a wetland of international significance
                      protected by the Ramsar Convention.) A State must exercise due dili-
                      gence in carrying out an environmental impact assessment with regard to
                      the nature and magnitude of the activity and its likely impact on the envi-
                      ronment (ibid., paras. 104 and 155). In determining the need for an envi-
                      ronmental impact assessment it is necessary to have regard to the risk of
                      harm being caused (ibid., paras. 104 and 153). (By necessary implication,
                      this rejects that argument that the test is not the risk of transboundary
                      harm but the likelihood or probability of such harm occurring. It is also
                      recognition of the fact that there is a lower standard — risk — that trig-
                      gers the obligation to conduct an environmental impact assessment than
                      the higher standard required for proving that significant transboundary
                      harm has actually been caused. This is confirmed by the finding of the
                      Court that Costa Rica was required to conduct an environmental impact
                      assessment because of the risk its activity posed to Nicaragua’s environ-
                      ment, despite the fact that Nicaragua failed to prove that significant
                      transboundary harm had in fact occurred.) Finally, the Court affirmed
                      that a subsequent finding of an absence of significant transboundary
                      harm does not exonerate the State that carries out an activity that risks
                      causing such harm for its failure to carry out an environmental impact
                      assessment when the activity was planned.

                                 VII. Construction of a Road and the Obligation
                                to Conduct an Environmental Impact Assessment

                        20. Here the Court scrupulously applied the principles governing an
                      environmental impact assessment that it had expounded in the present
                      case (see para. 19 above). First, it held that Costa Rica had breached its
                      obligation to conduct an environmental impact assessment by failing to
                      carry out such an assessment prior to embarking on the construction of
                      the road (Judgment, paras. 153, 159, 161 and 168). The fact that it later
                      carried out an environmental diagnostic assessment and other studies on
                      the impact of the road did not suffice (ibid., para. 161). Second, it held

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                      that Costa Rica had failed to prove that it had carried out a preliminary
                      assessment before embarking on the construction of the road (Judgment,
                      para. 154). Third, it held that the geographic conditions of the river basin
                      where the road was to be built were to be considered in assessing the risk
                      involved in the activity (ibid., para. 155). The Court made a careful exam-
                      ination of these conditions and the proximity of the road to the
                      San Juan River in order to show that the road posed a risk to Nicaragua’s
                      environment (ibid.). Fourth, the Court held that the fact that the road
                      was built in the proximity of Nicaragua’s Ramsar protected wetland of
                      Refugio de Vida Silvestre Río San Juan heightened the risk of significant
                      impact because of the sensitive nature of the environment (ibid.). Fifth, it
                      held that in determining the need for an environmental impact assessment
                      it was necessary for Costa Rica to have regard to the risk of significant
                      transboundary harm being caused by the construction of the road (ibid.,
                      para. 153). Sixth, it held that the fact that Nicaragua did not prove that
                      significant transboundary harm had in fact been caused by the construc-
                      tion of the road did not absolve Costa Rica from its obligation to con-
                      duct an environmental impact assessment prior to commencing this
                      activity.

                             VIII. Certain Activities and the Obligation to Conduct
                                 an Environmental Impact Assessment in respect
                                            of Costa Rica’s Wetlands

                        21. The reasoning and fact‑finding of the Court on the need for an
                      environmental impact assessment in Construction of a Road must be com-
                      pared to the approach it adopted in Certain Activities.

                         22. In its application and subsequent submissions Costa Rica made it
                      clear that it had two main concerns about Nicaragua’s plan to dredge the
                      Lower San Juan River : first, the impact it might have on Costa Rica’s
                      Ramsar protected wetlands and, second, the damage it might cause to the
                      Colorado River. In the course of the oral proceedings, on 28 April 2015,
                      Costa Rica asked the Court to adjudge and declare that Nicaragua had
                      breached “the obligation to respect Costa Rica’s territory and environ-
                      ment, including its wetland of international importance under the Ramsar
                      Convention ‘Humedal Caribe Noreste’, on Costa Rican territory” ; and
                      “the obligation to carry out an appropriate transboundary environmental
                      assessment, which takes account of all potential significant adverse
                      impacts on Costa Rican Territory” (ibid., para. 49). Costa Rica also
                      requested the Court to find that Nicaragua had breached it obligation to
                      refrain from any activity that might cause damage to the Colorado River.
                      This opinion will focus entirely on Costa Rica’s submissions in respect
                      of its wetlands. This is done for the sake of brevity. The expert witnesses

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                      of both Parties agreed in 2015 that Nicaragua’s dredging programme
                      was not likely to affect the flow of water to the Colorado River. Whether
                      the dredging as initially planned in 2006 posed a risk to the Colo-
                      rado River, warranting an environmental impact assessment, remains
                      unanswered.

                         23. The Court’s response to Costa Rica’s submissions was terse. First,
                      it stated that
                              “In 2006 Nicaragua conducted a study of the impact that the dredg-
                            ing programme would have on its own environment, which also stated
                            that the programme would not have a significant impact on the flow
                            of the Colorado River. This conclusion was later confirmed by both
                            Parties’ experts.” (Judgment, para. 105 ; emphasis added.)

                      This passage indicates that the Court was aware that Nicaragua’s study
                      of 2006 dealt only with the likely impact of dredging “on its own environ-
                      ment” and that the Court was satisfied, in the light of the “later” evidence
                      of experts of both Parties, that the dredging programme would have no
                      impact on the Colorado River. Then came the Court’s finding on both
                      the flow of the Colorado River and the impact on Costa Rica’s wetlands :

                              “Having examined the evidence in the case file, including the reports
                            submitted and testimony given by experts called by both Parties, the
                            Court finds that the dredging programme planned in 2006 was not
                            such as to give rise to a risk of significant transboundary harm, either
                            with respect to the flow of the Colorado River or to Costa Rica’s
                            wetland. In light of the absence of risk of significant transboundary
                            harm, Nicaragua was not required to carry out an environmental
                            impact assessment.” (Ibid.)
                         24. In order to compare and contrast the reasoning employed by the
                      Court in Certain Activities with its reasoning in Construction of a Road it
                      is necessary to examine the evidence in the case file of the Court, particu-
                      larly “the reports submitted and the testimony given by experts called by
                      both Parties” (ibid.), upon which the Court bases its finding that the
                      Nicaraguan dredging programme planned in 2006 was not such as to give
                      rise to a risk of significant transboundary harm with respect to
                      Costa Rica’s wetland, the Humedal Caribe Noreste.
                         25. There are four important documents dealing with the impact of
                      Nicaragua’s dredging programme : the terms of reference of the Ministry
                      of the Environment and Natural Resources (MARENA) 5, Nicaragua’s
                         5 Ministry of the Environment and Natural Resources (MARENA), Specific Terms

                      of Reference for the Preparation of the Environmental Impact Study for the Project
                      “Dredging of the San Juan River” (undated), Counter‑Memorial of Nicaragua (CMN),
                      Vol. II, Ann. 9, p. 221.

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                      environmental impact study (EIS) of 2006 6, the Project Design Study
                      attached as an annexure to the environmental impact study 7 and the
                      report of the Ramsar Advisory Mission No. 72 on the impact of the
                      dredging programme on Nicaragua’s wetland, the Refugio de Vida Silves‑
                      tre Río San Juan 8. The first three documents prepared by Nicaragua have
                      one thing in common : they carefully examine the impact of the dredging
                      programme on Nicaragua’s own environment but make no mention of its
                      possible impact on the territory of Costa Rica, least of all on its wetland.
                      The terms of reference of MARENA, which define the scope of the study,
                      do not direct any transboundary impacts to be studied. The environmen-
                      tal impact study mentions only Nicaragua’s Ramsar protected wetland.
                      The Project Design Study is concerned only with the increase in the flows
                      of the channel bed of the San Juan River and makes no mention of any
                      possible transboundary impact of the dredging programme. The Court is
                      therefore correct in stating that Nicaragua’s study considered only the
                      “impact that the dredging programme would have on its own environ-
                      ment” (Judgment, para. 105).

                        26. The Ramsar Report of 2011, on the other hand, is concerned with
                      the wetlands of the Lower San Juan River basin belonging to both Nica-
                      ragua and Costa Rica. It states that because any changes to the fluvial
                      dynamics of the river due to dredging will alter the dynamics of the Nica-
                      raguan and Costa Rican wetlands and “the distribution and abundance
                      of the species living there”, it is “important to perform studies of the rel-
                      evant environmental impacts prior to its implementation” 9. It adds that :

                               “Considering the main role of the San Juan River basin [is] on the
                            entire dynamics of the San Juan River as well as the Ramsar sites
                            Refugio de Vida Silvestre and Caribe Noreste, it is essential to develop
                            joint actions of co-operation between Nicaragua and Costa Rica,
                            enabling compliance with their international commitments within

                            the framework of the Ramsar Convention, and particularly the mainte-
                            nance of the ecological characteristics.” 10

                      The report then recommends “strong co-operation” between Nicaragua
                      and Costa Rica “for a more integrated management of activities that may
                      potentially affect the river” and “its related wetlands of international
                      importance” 11. Finally it recommends the monthly monitoring of the
                      hydrometric levels, the concentration of suspended solids in the water col-
                         6 Environmental Impact Study for Improving Navigation on the San Juan de Nica-

                      ragua River, September 2006, CMN, Vol. II, Ann. 7, p. 77.
                         7 Project Design Study, September 2006, CMN, Vol. II, Ann. 8, p. 213.
                         8 Ramsar Report of 18 April 2011.
                         9 Ibid., Conclusions, para. 5.
                         10 Ibid., para. 6.
                         11 Ibid., Recommendations, para. 1.

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                      umn and the groundwater levels of the river at least during the construc-
                      tion phase of the dredging 12.

                         27. Not surprisingly, the Ramsar Report of 2011 was not produced by
                      Nicaragua until requested by Costa Rica. Nicaragua wrote a hostile
                      reply 13 to the Ramsar Secretariat criticizing the actions of Costa Rica and
                      requesting, inter alia, the deletion of the report’s conclusion that any
                      changes to the fluvial dynamics of the river due to dredging will alter the
                      dynamics of the wetlands of Nicaragua and Costa Rica and the species
                      living there, resulting in the need “to perform studies of the relevant envi-
                      ronmental impacts prior to its implementation”. In the oral proceedings
                      Nicaragua dismissed the Ramsar Report as only a draft report which the
                      Ramsar Secretariat never finalized. In the light of the concern expressed
                      by the Ramsar Report over the impact that dredging might have on the
                      wetlands of both Nicaragua and Costa Rica it is unlikely that this was
                      one of the reports “in the case file” of the Court (Judgment, para. 105)
                      which led it to conclude that the dredging programme planned in 2006
                      was not such as to give rise to a risk of significant transboundary harm.

                         28. The principal witnesses called by Nicaragua in Certain Activities
                      were Professors Kondolf and van Rhee. Kondolf’s report in Nicaragua’s
                      Counter‑Memorial 14 is largely concerned with the clearing of the caño
                      and does not consider the impact of dredging on the wetlands other than
                      in the vicinity of the caño. His written statement is likewise focused mainly
                      on the clearing of the caño but he does state that the contemplated diver-
                      sion of the Colorado River’s flow into the San Juan River “does not risk
                      harming the Colorado or the wetlands it feeds”. There is no indication of
                      the wetlands to which he refers. Kondolf’s oral testimony was again cen-
                      tred on the clearing of the caño without mention of the impact of the
                      dredging upon the wetlands. Professor van Rhee’s report in Nicaragua’s
                      Counter‑Memorial 15 is about the dredging programme itself but it does
                      state that it “helps to ensure the survival of the wetlands of international
                      importance”, including the Refugio de Vida Silvestre Río San Juan and
                      the Humedal Caribe Noreste 16. In a subsequent report, Professor van Rhee
                      makes the important point that the dredging project described in the envi-
                      ronmental impact study of 2006 “has since been reduced in scope. As
                      such, even the small impact of the dredging project on the environ-

                        12  Ramsar Report, Recommendations, para. 3.
                        13  Considerations and Changes of the Government of the Republic of Nicaragua to the
                      draft Ramsar Mission Report No. 72.
                         14 G. Mathias Kondolf, “Distributary Channels of the Rio San Juan, Nicaragua

                      and Costa Rica : Review of Reports by Thorne, UNITAR, Ramsar, MEET and Araya-
                      Montero”, CMN, Vol. I, p. 461.
                         15 C. van Rhee and H. J. de Vriend, “The Influence of Dredging on the Discharge and

                      Environment of the San Juan River”, CMN, Vol. I, p. 525.
                         16 Ibid., p. 540, para. 3.2.

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                      ment . . . will likely be reduced.” 17 In his written statement, van Rhee
                      states that dredging is an “effective technique for maintaining flows to
                      wetlands” which serves to preserve the ecological health of the environ-
                      mentally sensitive wetlands of the Lower San Juan River. Profes-
                      sor van Rhee’s oral testimony was hampered by the fact that he had not
                      seen the 2011 Ramsar Report No. 72 on which he was cross‑examined.

                         29. Costa Rica’s main witness was Professor Thorne. He was unable to
                      access the San Juan River in person as the Nicaraguan authorities denied
                      such access. In contrast to the reports of Professors Kondolf and
                      van Rhee, his report in Costa Rica’s Memorial 18 had much to say about
                      the impact of dredging on Costa Rica’s wetlands. In the executive sum-
                      mary of his report, he states that the wetland of Humedal Caribe Noreste
                      that could be indirectly impacted by the dredging “provides habitats for a
                      wide array of plants, birds, fish, amphibians, reptiles and mammals,
                      including many iconic and endangered species” 19. Risks to such species
                      “include the possibility of extinction of those already threatened or
                      endangered” 20. The report itself declares that dredging has “direct,
                      short‑term impacts on river environments and ecosystems through dis-
                      turbing aquatic flora and fauna, destroying benthic communities and,
                      potentially, increasing turbidity and reducing water quality, with impacts
                      that will be felt throughout the trophic network” 21. The report spells out
                      the potential environmental impacts on the wetlands of dredging on such
                      issues as surface drainage, water quality, vegetation, fish, aquatic plant
                      life, birds and fauna 22. The report concludes that the evidence suggests
                      that the “morphological, environmental and ecological risks associated
                      with continuing the dredging programme are serious” 23. Profes-
                      sor Thorne’s written statement was largely concerned with maps and the
                      construction of the three caños. He did, however, state that “disturbance
                      to the environment and ecosystem at each dredging site are inherent and
                      inevitable”. Significantly, Professor Thorne accepts Professor van Rhee’s
                      assessment that Nicaragua’s reduced dredging programme is likely to
                      cause less environmental damage to the wetlands. He warns, however,

                         17 C. van Rhee and H. J. de Vriend, “Morphological Stability of the San Juan River

                      Delta, Nicaragua/Costa Rica”, CMN, Vol. IV, pp. 19 and 23.
                         18 Colin Thorne, “Assessment of the physical impact of works carried out by Nicaragua

                      since October 2010 on the geomorphology, hydrology and sediment dynamics of the San
                      Juan River and the environmental impacts on Costa Rican territory”, Memorial of Costa
                      Rica (MCR), Vol. I, p. 307.
                         19 Ibid., p. 313.
                         20 Ibid., p. 315.
                         21 Ibid., pp. 443‑444.
                         22 Ibid., pp. 454‑458.
                         23 Ibid., p. 461.

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                      that if the dredging programme were to be expanded to achieve its initial
                      goal of greater navigability of the river this would have adverse impacts.
                      Professor Thorne’s testimony in the oral proceedings was largely devoted
                      to maps and the cutting of the caños. However, when he testified in Con‑
                      struction of a Road, in response to a question by Judge Tomka, he issued
                      the stark warning that “[t]he dredging programme, if it cuts off the sedi-
                      ment supply, will starve the delta, the Caribbean Sea will take it away, we
                      will lose hundreds of hectares of wetland due to coastal erosion”
                      (CR 2015/12, p. 52).

                         30. Only one expert on environmental impact assessments testified in
                      the joined cases. He was Dr. William Sheate, who was called as a witness
                      by Nicaragua in the Construction of a Road to give evidence on the ques-
                      tion whether Costa Rica had breached its obligation to conduct an envi-
                      ronmental impact assessment when it embarked on the construction of a
                      road along the San Juan River. Although he did not provide evidence in
                      Certain Activities there is no reason why his evidence should not be con-
                      sidered in that case as the two cases were joined and the issue of the obli-
                      gation of a State to conduct an environmental impact assessment prior to
                      embarking on an activity that risks causing significant transboundary
                      harm arose in both cases. In his report in Nicaragua’s Reply in the Con‑
                      struction of a Road 24, Dr. Sheate repeatedly stresses the sensitivity of the
                      two wetlands, the Refugio de Vida Silvestre and the Humedal Caribe Nor‑
                      este, the fact that they are designated by Ramsar as wetlands of interna-
                      tional importance and the need to conduct an environmental impact
                      assessment in respect of any activity in the region. He declares that “[t]he
                      Ramsar and UNESCO designations covering the San Juan River and
                      adjacent areas should have been sufficient triggers on their own for an
                      environmental impact assessment or some form of advance assessment to
                      have been undertaken” 25. Later he goes further in saying that Ramsar
                      designation should “alone” be sufficient reason to require an environmen-
                      tal impact assessment 26. Referring to the designation of an area as a
                      Ramsar protected site, he states that

                             “[t]he likelihood of significant effects is increased because of the sen-
                             sitive nature of the designated environment and the habitats and wild-

                         24 William R. Sheate, “Comments on the Lack of EIA for the San Juan Border Road

                      in Costa Rica, July 2014”, Reply of Nicaragua (RN), Vol. II, Ann. 5, p. 281.
                        25   Ibid., pp. 284 and 297.
                        26   Ibid., p. 296.

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                             life for which the area has been designated — the threshold for
                             triggering an environmental impact assessment is therefore rightly
                             expected to be much lower than if the receiving environment were not
                             a Ramsar designated area”. 27
                      These opinions were restated by Dr. Sheate in his written statement and
                      his oral evidence.
                         31. It is difficult to conclude that an examination of the “reports sub-
                      mitted and testimony given by experts called by both Parties” indicates
                      that there was support for the finding that “the dredging programme
                      planned in 2006 was not such as to give rise to a risk of significant trans-
                      boundary harm . . . with respect to Costa Rica’s wetland” (Judgment,
                      para. 105). The documents/reports submitted by Nicaragua failed to
                      examine the impact of the dredging programme on Costa Rica’s wetlands
                      at all. The fact that Nicaragua felt obliged to conduct an environmental
                      impact study in respect of its own territory, however, suggests that it had
                      cause for concern about the environmental impacts of its dredging on the
                      area. The report of the Ramsar Advisory Mission No. 72 of 2011 stated
                      that dredging presented a risk of environmental impact on the wetlands
                      of both Costa Rica and Nicaragua and suggested that a new environmen-
                      tal impact study be carried out. It also recommended that there be regular
                      monthly monitoring of the situation. Professor Kondolf had little to say
                      about the impact of the dredging on the wetlands while Professor
                      van Rhee merely affirmed that dredging would promote the flow of water
                      in the river which would be beneficial to the wetlands. Moreover, he was
                      unable to respond to questions about the Ramsar Report of 2011 because
                      Nicaragua had failed to provide him with this important report. Profes-
                      sor Thorne, on the other hand, made it clear that the dredging programme
                      had serious consequences for the wetlands. The only expert witness on
                      environmental impact assessments, Dr. Sheate, testified that the fact that
                      an area had been designated a Ramsar site of international importance
                      was alone sufficient to trigger the need for an environmental impact
                      assessment and that there was a lower threshold for the assessment of risk
                      of harm in such a designated area.

                         32. Rather than showing that there was no need for Nicaragua to con-
                      duct an environmental impact assessment in respect of the risk of signifi-
                      cant transboundary harm to Costa Rica’s wetlands, the evidence
                      contained in the reports and testimonies of witnesses called by both
                      Parties shows that there was a risk of harm to Costa Rica’s Ramsar‑
                       designated site at the time the dredging was planned regardless of the fact
                       that no harm was later proved. The Court should have held that in
                       a Ramsar‑designated wetland there was a lower threshold of risk, that
                       Nicaragua had failed to show that it had considered the question of trans-
                       boundary harm at all and that the risk to the wetland was sufficient for

                        27   Op. cit. supra note 24, p. 297.

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                      Nicaragua to have conducted an environmental impact assessment that
                      examined the risk that its dredging programme posed to Costa Rica’s
                      wetlands.

                          33. The temporal factor is important in assessing Nicaragua’s obliga-
                      tion to conduct an environmental impact assessment. The planned aim of
                      the dredging in 2006 was to improve navigability on the San Juan River
                      by deepening and widening the navigation channel 28. Both van Rhee
                      (supra, para. 28) and Thorne (supra, para. 29) testified that Nicaragua
                      had reduced the scale of the dredging programme that was planned in
                      2006. As a result of this the risk of harm to the wetlands had been dimin-
                      ished. However, in assessing the risk for the purpose of deciding whether
                      Nicaragua should have conducted an environmental impact assessment,
                      it is necessary to have regard to the dredging programme as it was planned
                      in 2006. This was the question that required consideration and not the
                      question whether the evidence of the implementation of the dredging
                      in 2015 showed that the dredging programme planned in 2006 was not
                      such as to give rise to a risk of significant transboundary harm. The
                      evidence of Professor Thorne is important in this regard. In his first

                      report, included in Costa Rica’s Memorial, he provides a comprehen-
                      sive account of the potential environmental impact of the dredging as
                      planned in 2006. But in his written statement of 2015 he is less critical of
                      this impact on account of the reduction of the dredging that had
                      been planned (supra, para. 29). That the original dredging plan of 2006
                      held a risk of transboundary harm was confirmed by the Ramsar
                      Report of 2011. Moreover, the clear implication of Dr. Sheate’s evi-
                      dence is that an environmental impact assessment was without doubt
                      required when a Ramsar‑designated wetland was at risk. The Court’s
                      pronouncement that “the dredging programme planned in 2006 was not
                      such as to give rise to a risk of significant transboundary harm . . . with
                      respect to . . . Costa Rica’s w
                                                     etland” (Judgment, para. 105) based on the
                      reports submitted and the testimony given by experts called by
                      both Parties takes no account of the fact that Nicaragua’s documents/
                      reports had nothing to say on this       subject, that the Ramsar Report
                      of 2011 expressed serious concern about the risk to the environment and
                      that the testimony of witnesses showed on a balance of probabilities (and
                      possibly beyond reasonable doubt) that there was a risk to Costa Rica’s
                      wetland in 2006.    Furthermore it takes no account of the fact that
                      Costa Rica was     prevented by  Nicaragua from measuring the flow of
                      water in the river to provide proof of the impact of the dredging on its
                      wetlands ; and that Nicaragua had itself either not taken such measure-
                      ments or refused to disclose them. Such conduct on the part of Nicaragua

                        28 See Environmental Impact Study for Improving Navigation on the San Juan de

                      Nicaragua River, September 2006, CMN, Vol. II, Ann. 7, para. 2.1.3.

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                      affects the burden of proof as was stated by the Court in the Corfu
                      Channel case :

                            “exclusive territorial control exercised by a State within its frontiers
                            has a bearing upon the methods of proof available . . . By reason of
                            this exclusive control, the other State, the victim of a breach of inter-
                            national law, is often unable to furnish direct proof of facts giving
                            rise to responsibility. Such a State should be allowed a more liberal
                            recourse to inferences of fact and circumstantial evidence.” (Corfu
                            Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports
                            1949, p. 18.)
                         34. The fact-finding of the Court cannot be substantiated. To make
                      matters worse the decision of the Court cannot be reconciled either with
                      the reasoning on the obligation to conduct an environmental impact
                      assessment employed by the Court in Construction of a Road or with the
                      rules relating to environmental impact assessments expounded by the
                      Court and set out in paragraph 19 above. First, there is no examination
                      of the factual situation of Costa Rica’s wetlands of the kind carried out
                      by the Court in respect of the road along the San Juan River (Judgment,
                      para. 155). Second, there is no suggestion that Nicaragua carried out “an
                      objective evaluation of all the relevant circumstances” (ibid., para. 153).
                      On the contrary, the Court itself states that Nicaragua’s environmental
                      study was confined to “its own environment” (ibid., para. 105). This flies
                      in the face of the statement of the International Law Commission that an
                      environmental impact assessment should include an assessment of the
                      effects of the activity “on the environment of other States” (see supra
                      para. 18). In these circumstances it is impossible to conclude that Nicara-
                      gua had discharged the burden of proof in showing that it had carried out
                      an adequate preliminary assessment of the impact of its dredging pro-
                      gramme on Costa Rica’s wetlands. Third, the Court’s finding fails to take
                      into account the circumstances affecting the environment of the Lower
                      San Juan River. In particular it does not mention that the Costa Rican
                      wetland in question — the Humedal Caribe Noreste — like the Nicara-
                      guan wetland — the Refugio de Vida Silvestre Río San Juan, invoked in
                      the Construction of a Road, is a Ramsar Convention protected wetland
                      “which heightens the risk of significant damage because it denotes that
                      the receiving environment is particularly sensitive” (Judgment, para. 155).
                      Fourth, the Court disregards its requirement that a State must exercise
                      due diligence in ascertaining whether there is a risk of significant trans-
                      boundary harm prior to undertaking an activity having the potential
                      adversely to affect the environment of another State (ibid., para. 153).
                      Nicaragua’s environmental impact study which took no account of trans‑
                      boundary harm clearly failed to meet the standard of due diligence. Fifth,
                      the Court seems to have reached its conclusion that there was no risk of
                      significant transboundary harm when the dredging programme was

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                      planned in 2006 on the basis of the evidence of witnesses testifying on the
                      impact of the dredging in 2015. This inference is drawn from the fact that
                      the Court examined the impact of the dredging in its consideration of the
                      question whether it had caused significant transboundary harm in 2015
                      but not the risk — a lower threshold — that it might cause significant
                      transboundary harm in 2006. This finding differs fundamentally from
                      that of the Court in Construction of a Road where it was careful to distin-
                      guish between the risk of transboundary harm when the road was planned
                      and the question whether such harm had been proved in 2015. If the
                      Court’s conclusion was reached in some other way, it was careful to con-
                      ceal this in paragraph 105.

                         35. The evidence examined shows that there was a risk of significant
                      transboundary impacts to Costa Rica’s wetlands arising from the dredg-
                      ing project as planned in 2006. This risk was not as obvious or as great as
                      that posed by the construction of Route 1856 in Construction of a Road.
                      Nevertheless there was a risk and Nicaragua had an obligation to carry
                      out an environmental impact assessment that examined not only the
                      impact of the dredging on its own territory but also the impact on Costa
                      Rica’s territory. By failing to do so it breached its obligation under gen-
                      eral international law to conduct an environmental impact assessment.

                                              IX. Ramsar Convention

                         36. Certain Activities and Construction of a Road are both concerned
                      with the protection of the wetlands environment and the Ramsar Con-
                      vention is the most important multilateral convention on this subject. It
                      was the first conservation convention that focused exclusively on habitat.
                      Both Parties appreciated the importance of the Ramsar Convention and
                      accused each other of violating its terms by failing to notify and consult
                      one other in respect of potential environmental impacts. In these circum-
                      stances, one might have expected the Court to have more seriously con-
                      sidered the relevance of the Convention to the two cases before it.

                         37. Two wetlands in the vicinity of the disputed territory and the
                      Lower San Juan River are listed with the Secretariat of Ramsar as Wet-
                      lands of International Importance : the Humedal Caribe Noreste wetland
                      of Costa Rica and the Refugio de Vida Silvestre Río San Juan of Nicara-
                      gua. Wetlands are selected for listing on account of their international
                      significance in terms of ecology, botany, zoology, limnology or hydrol-
                      ogy. Both wetlands include estuaries, lagoons and marshes and are home
                      to migratory birds, salamanders and aquatic life.

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                         38. The legal provisions of the Ramsar Convention relating to notifica-
                      tion and consultation invoked by both Parties are Articles 3 (1) and 5 :

                                                                             “Article 3
                         1. The Contracting Parties shall formulate and implement their plan-
                               ning so as to promote the conservation of the wetlands included
                               in the List, and as far as possible the wise use of wetlands in their
                               territory.
                          �����������������������������������������������������������������������������������������������������������������
                                                                              Article 5
                              The 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 co-ordinate and support
                          present and future policies and regulations concerning the conserva-
                          tion of wetlands and their flora and fauna.”

                         39. In Certain Activities Costa Rica alleged that Nicaragua had vio-
                      lated Article 5 of the Ramsar Convention by refusing to provide it with
                      information about its dredging programme or to inform it about the envi-
                      ronmental impact study that it had conducted so that Costa Rica would
                      have been able to consider the impacts of the proposed works on its ter-
                      ritory (MCR, Vol. I, para. 5.17). Nicaragua contested this, arguing that
                      the obligation to notify, consult or provide an environmental impact
                      assessment arose only under general international law where there was a
                      risk of a significant transboundary impact, but failed to address the obli-
                      gation to consult under Article 5 of the Ramsar Convention which is not
                      restricted to situations involving a risk of significant transboundary
                      impact. However, Nicaragua changed its position on this in the Construc‑
                      tion of a Road when it stated that “there is no requirement in this article
                      [Art. 5] that a party’s activities cause or risk causing significant harm to
                      another party” (RN, Vol. I, para. 6.114).

                         40. Article 5 requires States to consult with each other on the imple-
                      mentation of “obligations arising from the Convention especially in the
                      case of a wetland extending over the territories of more than one Con-
                      tracting State or where a water system is shared by Contracting Parties”.
                      As the listed wetlands of Costa Rica and Nicaragua share a common
                      water system it follows that there is an obligation on both Parties to con-
                      sult with each other on issues affecting this shared water system.
                         41. Article 5 must be read with Article 3 (1) which provides: “The Con-
                      tracting Parties shall formulate and implement their planning so as to
                      promote the conservation of the wetlands included in the List, and as far

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                      as possible the wise use of wetlands in their territory.” While the “wise
                      use of wetlands in their territory” obligation is limited to Nicaragua’s ter-
                      ritory and thus may not give rise to a specific obligation to consult, the
                      same cannot be said of the first half of Article 3 (1) dealing with listed
                      wetlands. According to Lyster’s International Wildlife Law there is “some
                      form of collective responsibility for such sites” 29. Their designation as
                      sites of international importance means that they are “resources of ‘com-
                      mon concern’ to the international community as a whole” 30. The obliga-
                      tion to formulate and implement planning so as to promote the
                      conservation of wetlands applies generally to all wetlands included in the
                      List, and thus has extraterritorial effect. “The precise nature and extent of
                      their responsibility towards sites designated by other States is uncertain,
                      but should at least involve an obligation to avoid causing them significant
                      harm.” 31

                         42. Article 3 (1) should therefore be read as imposing an obligation to
                      undertake planning “to promote the conservation of the wetlands
                      included in the List” which clearly covers the wetlands of Costa Rica and
                      Nicaragua that share the same water system. Thus it may convincingly be
                      argued that when Nicaragua planned its dredging programme in 2006
                      and carried out an environmental impact study it was bound to “formu-
                      late and implement” its planned environmental assessment study in such
                      a way as to promote the conservation not only of its own wetland, the
                      Refugio de Vida Silvestre Río San Juan, but also of Costa Rica’s Humedal
                      Caribe Noreste. Article 3 (1) thus enlivens the procedural obligation to
                      conduct an environmental impact assessment under general international
                      law, giving it a substantive content requirement — namely to promote the
                      conservation of the wetlands. It does not stipulate the circumstances in
                      which such planning is to take place, and is not subject to any separate
                      threshold requirement. But it makes it clear that the planning must be
                      formulated and implemented to promote the conservation of wetlands.

                        43. Nicaragua does not deny that there is a relationship between the
                      environmental impact assessment obligation and Article 3 (1). In its
                      Memorial in Construction of a Road, alleging that Costa Rica had
                      breached Article 3 (1), it noted that Article 3 (1) applied whether or not
                      the affected wetland was within Costa Rican territory, and explained that
                      conservation of wetlands “is premised upon appropriate planning, some-
                      thing Costa Rica did not do in respect of its road project” (Memorial of
                      Nicaragua (MN), Vol. I, paras. 5.74‑5.75). Nicaragua accepted that the

                        29 M. Bowman, P. Davies and C. Redgwell, Lyster’s International Wildlife Law,

                      Cambridge University Press, 2nd ed., 2010, p. 420.
                        30 Ibid.
                        31 Ibid., p. 424.

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                      obligation under Article 3 (1) applies equally to both Costa Rican and
                      Nicaraguan wetlands (MN, Vol. I, para. 5.74) and acknowledged the link
                      between Article 3 (1) and the obligation to conduct an environmental
                      impact assessment (ibid., paras. 6.112‑6.115). As shown in paragraph 39
                      above, Nicaragua recognized that Article 5 does not require proof of sig-
                      nificant transboundary harm to bring it into operation (ibid., para. 6.114).

                         44. When read in conjunction with Article 3 (1), Nicaragua was obliged
                      to consult with Costa Rica on the promotion of conservation in both its
                      own wetland and that of Costa Rica in its planning of activities affecting
                      the wetlands. This included the carrying out of an environmental impact
                      assessment. To effectively consult in the implementation of Article 3 (1),
                      Nicaragua was required at a minimum to provide a draft copy of its
                      2006 environmental impact study to Costa Rica and to seek its input
                      before finalizing its plans. Nicaragua does not contest that it failed to do
                      so, although it says that the information was publicly available, at least in
                      summary form, through Nicaraguan press sources. This is not sufficient
                      to constitute consultation. It therefore appears that Nicaragua is in
                      breach of its obligations under Article 5 of the Ramsar Convention in
                      that it failed to consult with Costa Rica on the implementation of Arti-
                      cle 3 (1).

                         45. This final part of my opinion is concerned with Nicaragua’s failure
                      to conduct an adequate environmental impact assessment and to consult
                      with Costa Rica in respect of its dredging programme as required by the
                      Ramsar Convention. It should, however, be made clear that Costa Rica
                      likewise breached its obligations under the Ramsar Convention by failing
                      to conduct an environmental impact assessment for the construction of a
                      road along the San Juan River, which forms part of Nicaragua’s wetland.
                      It is in breach of Article 3 (1) because by not carrying out an environmen-
                      tal impact assessment it failed to take measures to promote the conserva-
                      tion of the listed wetlands. Costa Rica is also in breach of Article 5 of the
                      Ramsar Convention because it failed to consult with Nicaragua on its
                      planned activities involving the construction of the road. Paragraph 172
                      of the Judgment wrongly seems to assume that the obligation to consult
                      under Article 5 of the Ramsar Convention only comes into operation
                      when there is proof of significant transboundary harm. As shown above,
                      in paragraph 39, Article 5 contains no such requirement.

                                                                      (Signed) John Dugard.

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