Costa Rica and Nicaragua before the International Court of Justice: Trying to Work Out the Complicated Relationship between Law and the Environment

• DOI: http://doi.org/10.1111/reel.12044
• Author: Britta Sjöstedt
• Published date: 01 November 2013
• Date: 01 November 2013

Case Note

Costa Rica and Nicaragua before the International

Court of Justice: Trying to Work Out the

Complicated Relationship between Law and

the Environment

Britta Sjöstedt

Nicaragua and Costa Rica have twice turned to the

International Court of Justice (ICJ) to resolve disputes

related to environmental damage occurring in a

transboundary context. In these two cases the Court

has to consider at least two issues. The first issue con-

cerns the territorial status of a disputed border area.

The disagreement is triggered by natural variations of

the San Juan River at the border between the two

countries, which causes confusion as to where the

State line lies. The second issue concerns environmen-

tal damage; more specifically, it involves adversely

affected wetlands protected under the Ramsar Con-

vention. The obligations stemming from the Ramsar

Convention are of an open-ended character, rendering

them difficult to apply. Both issues are connected with

the fact that law and the environment have a compli-

cated relationship – that is, legal obligations may be

difficult to reconcile with a constantly changing envi-

ronment. Here, the ICJ has the opportunity to clarify

this uneasy relationship.

INTRODUCTION

Nicaragua and Costa Rica have for the second time in

less than two years turned to the International Court of

Justice (ICJ) to solve disputes concerning, inter alia,

transboundary environmental damage.1In two joined2

and still pending cases, the alleged breaches are con-

nected to the San Juan River, which belongs to Nicara-

gua but in part constitutes the border with Costa Rica.

Denoting State borders by a river is problematic, as the

flow of the river may change and thereby also the exact

location of the border. From this perspective, these two

cases reveal the complicated relationship between the

dynamic nature of the environment and the somewhat

static features of law. In this case note I focus on how

the changing nature of the environment introduces an

element of unpredictability, which may not be easy to

translate into stable legal norms.

FACTS OF THE CASES

The cases deal with complaints relating to two different

projects having harmful environmental transboundary

impacts. The first case involves a Nicaraguan canal and

dredging project, while the second deals with a road

construction project undertaken by Costa Rica. In both

cases wetlands of international importance protected

under the Ramsar Convention3have been adversely

affected. The Ramsar Convention promotes interna-

tional cooperation for preserving wetlands.4Under the

Convention, wetlands are designated on the Ramsar list

to protect unique ecosystems or waterfowl habitat to

safeguard biodiversity.5

The first dispute commenced with the restoration of a

channel in October 2010. To perform the restoration,

the Nicaraguan military entered Isla Portillos, allegedly

Costa Rican territory, and in part a protected Ramsar

site. Costa Rica claims that the presence of the Nicara-

guan military is an occupation violating its sovereign

rights, as well as the cause of environmental harm on its

territory, including deforestation and the dumping of

river sediment in the protected wetland. In addition to

the occupation, Costa Rica argues that the dredging on

1See ICJ 18 November 2010, Certain Activities Carried Out by Nica-

ragua in the Border Area (Costa Rica v. Nicaragua), Application,

found at: <http://www.icj-cij.org/docket/files/150/16279.pdf>; and ICJ

21 December 2011, Construction of a Road in Costa Rica along the

San Juan River (Nicaragua v. Costa Rica), Application, found at:

<http://www.icj-cij.org/docket/files/152/16917.pdf>.

2ICJ 17 April 2013, Certain Activities Carried Out by Nicaragua in the

Border Area (Costa Rica v. Nicaragua), Order – Joinder of Proceed-

ings, found at: <http://www.icj-cij.org/docket/files/152/17354.pdf>.

3Convention on Wetlands of International Importance especially as

Waterfowl Habitat (Ramsar, 2 February 1971; in force 21 December

1975).

4Ibid., Articles 3–5.

5Ibid., Article 2. See also the Criteria for Identifying Wetlands of

International Importance (1 August 1999), found at: <http://www

.ramsar.org/cda/en/ramsar-about-sites-criteria-for/main/ramsar/1-36-

55%5E20740_4000_0__>

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Review of European Community & International Environmental Law

RECIEL 22 (3) 2013. ISSN 2050-0386

© 2013 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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