Costa Rica v. Nicaragua and Nicaragua v. Costa Rica: Some Reflections on the Obligation to Conduct an Environmental Impact Assessment

• DOI: http://doi.org/10.1111/reel.12192
• Author: Yoshifumi Tanaka
• Published date: 01 April 2017
• Date: 01 April 2017

Case Note

Costa Rica v. Nicaragua and Nicaragua v. Costa

Rica: Some Reflections on the Obligation to

Conduct an Environmental Impact Assessment

Yoshifumi Tanaka*

The Costa Rica v. Nicaragua and Nicaragua v. Costa

Rica cases gave rise to important questions concern-

ing States’procedural and substantive obligations

under international environment law, namely: the

obligation to conduct an environmental impact

assessment; the obligation to notify and consult; and

substantive obligations concerning transboundary

harm. The joint decision of the International Court of

Justice (ICJ) provides interesting insights into the

interpretation of these obligations, especially that of

conducting an environmental impact assessment. In

particular, the ICJ has highlighted the interlinkage

between the obligations of due diligence, to conduct

an environmental impact assessment, and to notify

and consult; as well as the importance of scientific

evidence in the settlement of disputes concerning

environmental matters.

INTRODUCTION

Disputes between Costa Rica and Nicaragua derived

from activities of the two States in the San Juan River

area. On 18 November 2010, Costa Rica instituted pro-

ceedings against Nicaragua in the case concerning Cer-

tain Activities carried out by Nicaragua in the Border

Area (hereafter Costa Rica v. Nicaragua) on the basis

of Article XXXI of the Pact of Bogot

a

1

and Article 36.2

of the Statute of the International Court of Justice

(ICJ).

2

Subsequently, on 22 December 2011, Nicaragua

instituted proceedings against Costa Rica in the case

concerning Construction of a Road in Costa Rica along

the San Juan River (hereafter Nicaragua v. Costa Rica)

on the basis of Article XXXI of the Pact of Bogot

a and

Article 36.2 of the ICJ Statute. By two separate orders

dated 17 April 2013, the ICJ joined the proceedings in

the two cases.

3

It then delivered its judgment on 16

December 2015.

4

The two cases considered a wide range of issues, such

as: (i) sovereignty over the disputed territory and

alleged breaches thereof; (ii) alleged violations of inter-

national environmental law; (iii) compliance with pro-

visional measures; (iv) rights of navigation; (v) alleged

breaches of treaty obligations; and (vi) reparation. This

case note examines the environmental issues that have

been ascertained by the ICJ in these two cases. The fol-

lowing section briefly outlines the course of the litiga-

tion. Next, the case note examines the obligation to

conduct an environmental impact assessment and to

notify and consult, respectively. It then addresses sub-

stantive obligations concerning transboundary harm,

before offering conclusions.

COURSE OF THE LITIGATION

The San Juan River runs approximately 205 kilometres

from Lake Nicaragua to the Caribbean Sea. At the point

known as ‘Delta Colorado’or ‘Delta Costa Rica’, the

San Juan River divides into two branches: the Lower

San Juan and the Colorado River. The area situated

between the Colorado River and the Lower San Juan is

broadly referred to as Isla Calero, which is approxi-

mately 150 square kilometres. Isla Calero is part of the

Humedal Caribe Noreste (Northeast Caribbean Wet-

land) which was designated as a wetland of interna-

tional importance under the Ramsar Convention by

Costa Rica in 1996.

5

The area immediately adjacent to

* Corresponding author.

Email: yoshifumi.tanaka@jur.ku.dk

1

American Treaty on Pacific Settlement (Bogot

a, 30 April 1948; in

force 6 May 1949).

2

Statute of the International Court of Justice (San Francisco, 26 June

1945; in force 24 October 1945) (‘ICJ Statute’).

3

Thereafter Judges Guillaume and Dugard sat as judges ad hoc in

the joined cases. ICJ 17 April 2013, Certain Activities carried out by

Nicaragua in the Border Area (Costa Rica v. Nicaragua), Joinder of

Proceedings.

4

ICJ 16 December 2015, Certain Activities carried out by Nicaragua

in the Border Area (Costa Rica v. Nicaragua) Construction of a Road

in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),

[2015] ICJ Rep. A/71/4 (‘Costa Rica v. Nicaragua/Nicaragua v. Costa

Rica’).

5

Convention on Wetlands of International Importance (Ramsar, 2

February 1971; in force 21 December 1975).

ª2017 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

91

RECIEL 26 (1) 2017. ISSN 2050-0386 DOI: 10.1111/reel.12192

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