CLASS – XVV (November 23, 2023)

Costa Rica vs. Nicaragua (case pertaining to transboundary harm)

On 18 November 2010, the Republic of Costa Rica filed an Application instituting proceedings
against the Republic of Nicaragua in respect of an alleged “incursion into, occupation of and
use by Nicaragua’s Army of Costa Rican territory as well as [alleged] breaches of Nicaragua’s
obligations towards Costa Rica”, namely the principle of territorial integrity and the prohibition
of the threat or use of force.
In its Application, Costa Rica contended that Nicaragua had, in two separate incidents,
occupied the territory of Costa Rica in connection with the construction of a canal from the
San Juan River to Laguna los Portillos (also known as “Harbour Head Lagoon”), and carried
out certain related works of dredging on the San Juan River. According to Costa Rica, the
dredging and the construction of that canal would seriously affect the flow of water to the
Colorado River of Costa Rica, and would cause further damage to Costa Rican territory,
including the wetlands and national wildlife protected areas located in the region. This case
was entered in the General List of the Court under the title Certain Activities Carried Out by
Nicaragua in the Border Area (Costa Rica v. Nicaragua) (hereinafter the “Costa
Rica v. Nicaragua case”).
On 18 November 2010, Costa Rica also filed a Request for the indication of provisional
measures aimed at protecting its “right to sovereignty, to territorial integrity and to non-
interference with its rights over the San Juan River, its lands, its environmentally protected
areas, as well as the integrity and flow of the Colorado River”. By its Request, Costa Rica
sought in particular to obtain the withdrawal of all Nicaraguan troops from the territory in
dispute, the immediate cessation of the construction of the canal and the suspension of the
dredging of the Colorado River.
On 22 December 2011, Nicaragua instituted proceedings against Costa Rica “for violations of
Nicaraguan sovereignty and major environmental damages to its territory”. In its Application,
Nicaragua contended that Costa Rica was carrying out major construction works along most of
the border area between the two countries with grave environmental consequences. This case
was entered in the General List of the Court under the title Construction of a Road in Costa
Rica along the San Juan River (Nicaragua v. Costa Rica) (hereinafter the “Nicaragua v. Costa
Rica case”).

Held –
Public hearings in the joined cases were held in April 2015, and the Court delivered its
Judgment on the merits on 16 December 2015. Regarding the first case, the Court found, inter
alia, that Costa Rica had sovereignty over the disputed territory lying in the northern part of
Isla Portillos. It therefore considered that the activities carried out by Nicaragua in the disputed
territory since 2010, including the excavation of three caños and the establishment of a military
presence in parts of that territory, were in breach of Costa Rica’s territorial sovereignty and
Nicaragua’s obligations under the Court’s Order of 8 March 2011 indicating provisional
measures. In its Judgment, the Court ruled that Nicaragua had an obligation to compensate
Costa Rica for the material damages caused by its unlawful activities and that, failing an
agreement on the matter between the Parties within 12 months, the Court would settle this
question in a subsequent procedure.
In the same Judgment, regarding the second case, the Court found that the construction of the
road by Costa Rica carried a risk of significant transboundary harm and that Costa Rica
therefore had an obligation under general international law to carry out an environmental
impact assessment (They just mentioned that they had an obligation). However, since Costa
Rica had not complied with that obligation, the Court found that there was no need for it to
determine whether Costa Rica had a duty to notify and consult with Nicaragua. Turning to the
alleged breaches of substantive obligations, beginning with the obligation to exercise due
diligence to avoid causing significant transboundary harm, the Court concluded that Nicaragua
had not proved that the construction of the road caused significant transboundary harm, and it
therefore dismissed Nicaragua’s claims on this point. Turning to the reparation requested by
Nicaragua, the Court concluded that a declaration of wrongful conduct in respect of Costa
Rica’s violation of the obligation to conduct an environmental impact assessment was the
appropriate measure of satisfaction for Nicaragua.

Concurring opinion of Bhandari and the emphasis on his to delve more into EIA –
Justice Dalbir Bhandari – he in his concurring opinion, stated that there is a need to delve
into the finer nuances of EIA and how it has to be conducted. He first said that – EIA is a
general idea and also specific in its connotation finding its origins in a lot of International
Treaties.
I concur with the majority’s conclusion that Costa Rica ought to have produced an EIA in the
Construction of a Road case, I feel the present Judgment offers a welcome opportunity to
expand upon the present state of the law surrounding EIAs, and to offer insight as to how the
body of law governing such instruments may be complemented so as to provide clearer
guidance to nation-States contemplating large-scale public works projects that contain a
prospect of transboundary impacts.
Some of the driving forces behind the advent and growing acceptance of the need to conduct
EIAs are the concomitant rise in other international environmental law doctrines, such as the
principle of sustainable development, the principle of preventive action, global commons, the
precautionary principle, the polluter pays principle and the concept of transboundary harm.

22. Transboundary harm has been succinctly described by this Court as “every State’s
obligation not to allow knowingly its territory to be used for acts contrary to the rights of other
States”32. However, a review of the various authorities in which the concept is discussed
reveals four common factors present in cases of transboundary environmental harm: firstly, the
harm must be a result of human activity; secondly, the harm must result as a consequence of
that human activity; thirdly, there must be transboundary effects on a neighbouring nation-State
; and fourthly, the harm must be significant or substantial.
23. The requirement of a country contemplating a public works project that poses a risk of
transboundary harm to produce an EIA can thus be seen as a tangible manifestation of these
collective requirements that has gained increasing recognition amongst the community of
nations.
He then quotes different international instruments such as UNEP, Rio Declaration, etc. But then
he says that – However, despite the burgeoning acceptance of this obligation under
international law, discerning the exact procedural and substantive requirements of an EIA has
proven elusive.

Pulp Mills Judgement of 2010 was also quoted –

“a practice, which in recent years has gained so much acceptance among States that 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.
Moreover, due diligence, and the duty of vigilance and prevention which it implies, would not
be considered to have been exercised, if a party planning works liable to affect the régime of
the river or the quality of its waters did not undertake an environmental impact assessment on
the potential effects of such works. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Court
also considers that an environmental impact assessment must be conducted prior to the
implementation of a project. Moreover, once operations have started and, where necessary,
throughout the life of the project, continuous monitoring of its effects on the environment shall
be undertaken.”

However, in the same section of that Judgment, the Court opined that “it is the view of the
Court that it is for each State to determine in its domestic legislation or in the authorization
process for the project, the specific content of the environmental impact assessment required
in each case, having regard to the nature and magnitude of the proposed development and its
likely adverse impact on the environment as well as to the need to exercise due diligence in
conducting such an assessment”.
Thus, we see that while the Pulp Mills Judgment elevated the practice of conducting an EIA to
an imperative under general international law when certain preconditions are met, at the same
time it allowed for a renvoi to domestic law in terms of the procedure and content required
when carrying out such an assessment.

Finally, he said that there are three stages of EIA in the context of Transboundary Harm
(not internal – but transboundary context):
• Preliminary Assessment – you look at the preliminary assessment – whether it will result
in harm; if it reveals that – it will result in significant harm – the state has no option but to
conduct EIA.
• Second Stage – Procedural and Substantive Obligations;
• Third and Final Stage – Post project assessment

He says that what is missing is the requirements that has to be laid down under Second Stage
– the procedural and substantive part. For this, he looked at the ESPOO convention that was
for the countries of EU to conduct EIA in the context of Transboundary harm.
• Article 2 (6) of the Convention places heavy emphasis on the need for public participation
of the likely affected population(s).
• Article 3 of the Convention requires the nation proposing a project to notify a potentially
affected neighbouring nation-State regarding any proposed activity that is likely to cause a
“significant adverse transboundary impact.” – procedural requirement.
o Note the word – the risk of significant adverse impact – only then EIA is conducted.
o Article 3 (7) stipulates that if there is a question that an activity will have a
significant impact or not then the question is to be settled by an inquiry commission.
• Article 5 of the Convention requires consultations with the affected State, to give
recommendations to the State of origin methods for the reduction or the elimination of the
harmful impact.
• Article 6 of the Convention outlines that a final decision regarding a proposed project is to
be made with due regard to the conclusion of the EIA.
• Article 15 of the Convention discusses the settlement of disputes if they arise between
parties.

Procedural obligation –
He says that take the ques from ESPOO convention but then tried to answer the drawbacks –
Presently, an EIA is required to be conducted when there is “risk of significant adverse impact”
(Judgment, para. 167). A nation-State contemplating a project might claim that the risk of harm
is not significant and therefore there exists no obligation to conduct an EIA. However, to avoid
the possibility that countries may abuse their discretion in labelling certain activities as
environmentally benign, I suggest that the best approach to take lies in the Espoo Convention,
which lays down certain types of industries for which there is an automatic requirement to
conduct an EIA if the said activities are being proposed near an international border.
However, the fact that a project does not appear on this list does not mean it cannot be subject
to an EIA. For instance, there might be other types of activities not contemplated within
Appendix 1 of the Espoo Convention, but which might still produce dangerous pollutants or
effluents as a by-product. Those activities must also be recognized as harmful, thus giving rise
to EIA obligations. To this end, Appendix III of the Espoo Convention contains general criteria
to assist in the determination of the environmental significance of various activities.
Once it is established that a certain activity requires that an EIA be carried out, nation-States
may invoke certain exemptions that would relieve them of their obligation to conduct an EIA.
If such a claim is made by a nation it has to be well substantiated and the burden of proof,
which would lie with the country proposing the project, must be high.

Substantive Obligation –
For example, UNEP Principle 4 stipulates certain minimum contents of an EIA:
(a) A description of the proposed activity;
(b) A description of the potentially affected environment, including specific information
necessary for identifying and assessing the environmental effects of the proposed activity;
(c) A description of practical alternatives, as appropriate ;
(d) An assessment of the likely or potential environmental impacts of the proposed activity and
alternatives, including the direct, indirect, cumulative, short-term and long-term effects;
(e) An identification and description of measures available to mitigate adverse environmental
impacts of the proposed activity and alternatives, and an assessment of those measures;
(f) An indication of gaps in knowledge and uncertainties which, may be encountered in
compiling the required information;
(g) An indication of whether the environment of any other State or areas beyond national
jurisdiction is likely to be affected by the proposed activity or alternatives;
(h) A brief, non-technical summary of the information provided under the above headings.”
Notably, these criteria are not as burdensome as the requirements of the Espoo Convention.
The Espoo Convention requires certain additional information to be included in an EIA, such
as the purpose of the project.
The Espoo Convention imposes the further hurdle that an EIA must contain an outline of how
post-project assessment is to be conducted.