Environmental Law and Freshwater Ecosystems

McCaffrey, Stephen C.

doi:10.1007/978-3-319-62962-9_15

Stephen C. McCaffrey³

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2 Citations

Abstract

This chapter focuses on the contributions of the International Court of Justice to environmental law in two cases involving Nicaragua, which have been many and significant. The judgment in the two cases considered, the Certain Activities and Construction of a Road cases, contains a wealth of material bearing upon the law of wetlands of international importance, governed by the Ramsar Convention, transboundary pollution, and the right of a state to maintain the flow and navigability of a watercourse within its borders.

These cases also illustrate the challenges posed by cases involving substantial evidence of a scientific and technical nature, as well as those that deal with harm that builds incrementally. Finally, the Court’s judgment in the two cases shows that the Court is fully prepared to hold States to their procedural obligations in the field of the environment but that it will require clear and convincing evidence of harm before finding a breach of the obligation to prevent transboundary environmental harm.

Stephen McCaffrey was part of the legal team representing the Republic of Nicaragua in the following cases: Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua); 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). The views and opinions expressed in this Chapter are those of the author and do not necessarily reflect the views and opinions of the Republic of Nicaragua.

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Notes

1.
Medium-term plan for the period 1992–1997, as revised by the General Assembly at its forty-seventh session, UN Doc. A/47/Rev.1, Vol. I, major programme IV, International economic cooperation for development programme 16 (Environment), p. 221, para 16.25, quoted in the commentary of the International Law Commission to Art. 20 of its draft articles on The Law of the Non-Navigational Uses of International Watercourses, ‘Protection and preservation of ecosystems’, YbILC 1994, Vol. II, Part Two, p. 119.
2.
Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p. 41, para 53, quoting from YbILC 1980, Vol. II, Part Two, p. 39, para 14.
3.
Ibid.
4.
Ibid., p. 18, para 17.
5.
United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, art. 2(b), UN Doc. A/RES/51/869, 21 May 1997, 36 ILM 700 (1997).
6.
The principal legal instruments governing the San Juan River and constituting its lex specialis are the 1858 Treaty of Limits between Costa Rica and Nicaragua and the 1888 arbitral award of President Grover Cleveland concerning the Treaty, its interpretation and application.
7.
Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, ICJ Reports 2009, p. 213, p. 234, para 37.
8.
Treaty of Limits (Tratado de Limites) between Nicaragua and Costa Rica, San José, 15 April 1858, English translation in 48 BFSP 1049, known as the ‘Jerez-Cañas Treaty’ after the officials that concluded it.
9.
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),Judgment, ICJ Reports 2015, p. 713, para 125, p. 68, para. 195 (hereinafter ‘Certain Activities; Construction of a Road (Judgment)’). Nicaragua in its Counter Memorial in the Navigational and Related Rights case stated that: ‘The sediment load that the San Juan River receives from rivers originating in Costa Rica is very heavy. […] [para 1.1.9] The result […] has been that the bay of San Juan de Nicaragua has undergone sedimentation and obstruction over time, in such a way that now the bay communicates with the sea through a narrow outlet. [para 1.1.10] These affluents of the San Juan originating in Costa Rica have also carried substantial amounts of pollutants that have damaged the San Juan de Nicaragua River.’ See also Dispute concerning Navigational and Related Rights (Costa Rica v. Nicaragua), Counter-Memorial of Nicaragua, Vol. I, p. 11, paras 1.1.8–1.1.10, available at http://www.icj-cij.org/docket/files/133/15086.pdf.
10.
The Certain Activities and Road cases were joined by the Court at the request of Nicaragua, over the objection of Costa Rica, because they involved common elements of law and fact (Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Joinder of Proceedings, Order of 17 April 2013, ICJ Reports 2013, p. 166. See contribution by Sobenes E.
11.
Supra note 9. See also contribution by Sobenes E.
12.
The chapter’s focus on environmental law means, of course, that many details not relevant to this field will be omitted. For example, Costa Rica twice (on filing its Application and on 24 September 2013) requested that the Court indicate provisional measures in the Certain Activities case, and Nicaragua in the Road case requested the Court on 19 December 2012 to ‘decide proprio motu whether the circumstances of the case require[d] the indication of provisional measures.’ (Certain Activities; Construction of a Road (Judgment), supra n. 9, para 17). On 8 March 2011 the Court indicated provisional measures addressed to both parties in the Certain Activities case and directed that they inform it about compliance with those measures (Certain Activities; Construction of a Road (Judgment), supra n. 9, para. 7). Nicaragua later, on 11 October 2013, made a request for the indication of provisional measures in the Road case (ibid., para 25. The Court on 22 November 2013 ordered new provisional measures in the Certain Activities case addressed to both parties (ibid., para 26) but decided on 13 December 2013 that provisional measures were not then required in the Road case (ibid., para 27). For more see contribution by Hugh Thirlway.
13.
The geographical context of the Certain Activities case is illustrated by the Court’s Sketch-map No. 1, following para 58 of the Judgment, supra n. 9.
14.
Certain Activities; Construction of a Road (Judgment), supra n. 9, para 1.
15.
These were the awards issued by General Edward Porter Alexander of the United States, an engineer who had been appointed by the President of the United States pursuant to the 1896 Pacheco-Matus convention on border demarcation between the two countries. See ibid., para 61. They are found in Vol. XXVIII of RIAA.
16.
Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, Iran, 2 February 1971, 996 UNTS 246 (hereinafter ‘Ramsar Convention’).
17.
Certain Activities; Construction of a Road (Judgment), supra n. 9, para 12.
18.
See the UN website on status of Multilateral Treaties Deposited with the Secretary-General, https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-8&chapter=27&lang=en (last visited January 30, 2016).
19.
Certain Activities; Construction of a Road (Judgment), supra n. 9, para 101.
20.
Ibid., para 102.
21.
Ibid., para 64. The Court’s Sketch-Map No. 2 showing the route of the road is found following para 64 of the judgment.
22.
Ibid.
23.
See the operative clause of the Judgment, ibid., paras 6 and 7.
24.
Ibid., para 104.
25.
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 83, para 204 (hereinafter ‘Pulp Mills (Judgment)’).
26.
Certain Activities; Construction of a Road (Judgment), supra n. 9, para 104.
27.
Ibid., para 104.
28.
Ibid. Judge Owada stated in his Separate Opinion that ‘[i]n the process of carrying out the obligation to act in due diligence under international environmental law, the requirement of conducting an environmental impact assessment becomes a key element for determining whether certain activities may cause significant transboundary harm.’ See para 14, Judge Owada Separate Opinion. Judge ad hoc Dugard also stated that ‘[t]he obligation of due diligence flows from the principle of prevention. This is emphasized by the International Law Commission’s Commentary 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 measures is one of due diligence” (Yearbook of the International Law Commission (YILC), 2001, Vol. II, Part Two, p. 154, para. 7; see too, p. 155, para. 17). The duty of due diligence therefore is the standard of conduct required to implement the principle of prevention.’ He continued by stating: ‘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 exercise to determine whether it is required to do an environmental impact assessment prior to undertaking an activity.’ See paras 7 and 8 of Judge Dugard’s Separate Opinion.
29.
Certain Activities; Construction of a Road (Judgment), supra n. 9, para 104.
30.
See, e.g., Rio Declaration on Environment and Development, Principle 19 (requiring prior and timely notification of activities that may have a significant adverse transboundary environmental effect), June 14, 1992, UN Doc. A/CONF.151/5/Rev. 1, 31 ILM 874 (1992); and International Law Commission, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, Arts. 8–12 (same), YbILC 2001, Vol. II, Part Two, pp. 146-147.
31.
Certain Activities; Construction of a Road (Judgment), supra n. 9, para 105.
32.
Ibid.
33.
Ibid.
34.
Ibid.
35.
Ibid., para 147.
36.
Ibid., paras 64 and 148.
37.
Ibid., para 149.
38.
Ibid., para 153.
39.
Ibid.
40.
Ibid., para 154.
41.
Ibid.
42.
Ibid., para 155.
43.
Ibid.
44.
Ibid.
45.
Ibid.
46.
Ibid.
47.
Ibid.
48.
Ibid., para 156.
49.
Ibid., para 160.
50.
Ibid., para 161.
51.
Ibid., paras 161 and 162.
52.
Ibid., para 157.
53.
Ibid.
54.
Ibid.
55.
23 May 1969, 1155 UNTS 331, 8 ILM 679. Article 27 provides in relevant part: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’
56.
Certain Activities; Construction of a Road (Judgment), supra n. 9, para 159.
57.
Ibid.
58.
Ibid.
59.
Ibid., para 106.
60.
Ibid., para 104. Notification and consultation would be required ‘where that is necessary to determine the appropriate measures to prevent or mitigate that risk’ (ibid.).
61.
Ibid., para 106.
62.
Ibid., para 107.
63.
Ibid., para 112.
64.
Ibid., para 108.
65.
Treaty of Limits, supra n. 8, Art. VI.
66.
Certain Activities; Construction of a Road (Judgment), supra n. 9, para 108.
67.
Ibid., para 109.
68.
Ramsar Convention, supra n. 16, Art. 5, as quoted in ibid., para 110.
69.
Certain Activities; Construction of a Road (Judgment), supra n. 9, para 110.
70.
Ibid.
71.
Ibid., para 111.
72.
Ibid., para 171.
73.
Ibid., para 172.
74.
Ibid.
75.
Ibid., para 173.
76.
Ibid.
77.
Ibid.
78.
Ibid., paras 93 and 113.
79.
Ibid., para 114.
80.
Ibid., para 115. Both Parties invoked in this connection para. 3(6) of the Cleveland Award, which gives Nicaragua the right to execute works of improvement on the river subject to certain provisos regarding the avoidance of specified types of harm. See ibid., para 116. As will be seen, the Court found that none of these kinds of harm was established by Costa Rica.
81.
Ibid., para 117.
82.
Ibid., para 118, citing ICJ Reports 2010 (I), p. 56, para 101; and, see also Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996 (I), pp. 241–242, para 29.
83.
Certain Activities; Construction of a Road (Judgment), supra n. 9, para. 118.
84.
Ibid., para 119.
85.
Ibid., para 120.
86.
Ibid., para 174.
87.
Ibid.
88.
Ibid., para 175.
89.
Ibid., para 176.
90.
Ibid., para 217.
91.
Ibid.
92.
Ibid., para 190.
93.
Ibid., para 192.
94.
Nicaragua’s experts had pointed out that much of the sediment in the river was carried there by the San Carlos and Sarapiquí Rivers from areas in Costa Rica that had been cleared for agriculture. The Court itself recognized that ‘the tributaries (particularly the San Carlos and Sarapiquí Rivers) are major sources of sediment for the San Juan’ (ibid., para 195).
95.
Ibid., para 192.
96.
Ibid., para 193.
97.
Ibid., para 194.
98.
Ibid., para 196. In the Pulp Mills case, the Court observed that ‘with regard to the River Uruguay, which constitutes a shared resource, “significant damage to the other party” (Article 7, first paragraph, of the 1975 Statute) may result from impairment of navigation, the régime of the river or the quality of its waters’ (Pulp Mills (Judgment), p. 56, para. 103) (emphasis added).
99.
Ibid., para 220. Those treaties were the Ramsar Convention, the 1990 Agreement over the Border Protected Areas between Nicaragua and Costa Rica (the ‘SI-A-PAZ Agreement’), the Convention on Biological Diversity, the Convention for the Conservation of Biodiversity and Protection of Priority Wildlife Areas in Central America, the Central American Convention for the Protection of the Environment and the Tegucigalpa Protocol to the Charter of the Organization of Central American States, and the Regional Agreement on the Transboundary Movement of Hazardous Wastes.
100.
Certain Activities; Construction of a Road (Judgment), supra n. 9, para 223.
101.
Pulp Mills (Judgment), supra n. 25, Joint dissenting opinion of Judges Al-Khasawneh & Simma, ICJ Reports 2010, p. 112, para 8.
102.
Ibid., para 9.
103.
Ibid.
104.
Certain Activities; Construction of a Road (Judgment), supra n. 9, para 224.
105.
Pulp Mills (Judgment), supra n. 25, dispositif, para 1.
106.
Certain Activities; Construction of a Road (Judgment), supra n. 9, para 226.
107.
Ibid.
108.
Ibid., para 30.
109.
Ibid., para 226.

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McGeorge School of Law, University of the Pacific, Sacramento, CA, USA
Stephen C. McCaffrey

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Embassy of Nicaragua in The Hague, Den Haag, The Netherlands
Edgardo Sobenes Obregon
University Paris Nanterre, Paris, France
Benjamin Samson

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McCaffrey, S.C. (2018). Environmental Law and Freshwater Ecosystems. In: Sobenes Obregon, E., Samson, B. (eds) Nicaragua Before the International Court of Justice. Springer, Cham. https://doi.org/10.1007/978-3-319-62962-9_15

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DOI: https://doi.org/10.1007/978-3-319-62962-9_15
Published: 22 November 2017
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