Consolidated Case

Certain activities carried out by Nicaragua in the Border Area

(Costa Rica v. Nicaragua)
and
Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v. Costa Rica)

Facts:

Here, Republic of Costa Rica brought an action against Nicaragua because Nicaragua started
dredging of the San Juan River. Nicaragua contends that it was only cleaning the river to improve its
navigation.

On the other hand, Nicaragua instituted proceedings against Costa Rica because Costa Rica started road
construction of Route 1856 Juan Rafael Mora Porras (hereinafter the “road”), which runs in Costa Rican
territory along part of its border with Nicaragua. Costa Rica adopted an Executive Decree declaring a
state of emergency in the border area. Costa Rica alleges that because it declared a state of emergency
it is exempted from conducting an environmental impact assessment before constructing the road.

Questions posed:

Whether Nicaragua violated its international obligations

Whether Costa Rica violated its international obligations

Ruling:

Costa Rica v Nicaragua:

Procedural Obligations
A. The obligation to carry out an environmental impact assessment

In the case of Pulp Mills on the River Uruguay (Argentina v. Uruguay), it is now a
requirement under international law to conduct an environmental impact assessment where in
conducting an activity it would cause an adverse impact to another state.

Before carrying out an activity which might adversely affect a neighboring state, the state which
would carry out the activity should first conduct an environmental impact assessment to prevent
transboundary environmental harm.
 If the environmental impact assessment confirms that there is a risk of significant
transboundary harm, the State planning to perform the activity should notify and consult the
potentially affected State, to determine the appropriate measures to prevent or mitigate that risk.

Here, Costa Rica assail that the risk of the dredging activities will affect the flow of the Colorado River
which would then affect Costa Rica’s wetland.

The Court ruled that the dredging activities will not cause significant transboundary harm either to the
flow of Colorado River or Costa Rica’s wetland. In the absence of significant transbounary harm,
Nicaragua was not required to carry out an environmental impact assessment.

B. The obligation to notify and consult

Since Nicaragua is not obliged to carry out an environmental assessment since there is absence of
transboundary harm, it was not required to notify and consult Costa Rica.

Therefore, Nicaragua has not violated any procedural obligations under international environmental
law.

Substantive Obligation
Substantive obligations concerning transboundary harm

Costa Rica has not provided any convincing evidence that sediments dredged from the river
were deposited on its right river side. Nor has it proved that the dredging activites caused harm to its
wetland, or has had a significant effect upon the Colorado River.

Therefore, it was not shown that Nicaragua breached its obligations by conducting dredging activities in
the Lower San Juan River.

Nicaragua v Costa Rica:

Procedural Obligations
A. to carry out an environmental impact assessment

The fact that there may be an emergency exemption under Costa Rican law does not affect
Costa Rica’s obligation under international law to carry out an environmental impact assessment.

It was not shown that there was an emergency to justify constructing the road without carrying out an
environmental impact assessment.
Costa Rica produced several studies, these studies assessed the adverse effects that had already been
caused by the construction of the road on the environment and suggested steps to prevent or reduce
them.

In the Pulp Mills case, it held that environmental impact assessment is a continuous process, and that
monitoring of environmental effect should be done throughout the project.

Here, Costa Rica presented assessments but the studies did not evaluate the risk of future harm and
therefore, Costa Rica has not complied its obligation to carry out an environmental impact assessment.

B. The alleged breach of an obligation to notify and consult

The duty to notify and consult does not call for examination by the Court in the present case, since it
has established that Costa Rica has not complied with its obligation under general international law to
perform an environmental impact assessment prior to the construction of the road.

In conclusion, Costa Rica failed to comply with its procedural obligation to evaluate the environmental
impact of the construction of the road.

Substantive Obligations

Whether the increased sediment in the river would cause significant harm to Nicaragua

The Court observes that the road is contributing 2 per cent sediment of the river’s total load but it was not
shown that the river’s sediment levels reached a critical level which would cause adverse effects to
Nicaragua; also since sediment is naturally present in the river.

Therefore, it was not established that the sediment in the river increased because of the road
construction and that it would cause significant transboundary harm to Nicaragua.