Catch-22 in the Borderlands: Costa Rica v. Nicaragua and the Binding Nature of Provisional Measures

I. The wider context of Border Area and San Juan River

It was love at first sight. The first time Yossarian saw the chaplain, he fell madly in love with him.

So opens Joseph Heller’s classic war novel, Catch-22 (1955, reprinted 2011), the title of which—almost immediately following its publication—entered into common usage to describe a conundrum in which no matter which form of ‘resolution’ is adopted, the end result remains the same. A cynic might be forgiven for applying the term to the jurisprudence of the International Court of Justice (“ICJ” or the “Court”) regarding provisional measures in the wake of the decision in LaGrand (Germany v US), ICJ Reports 2001 p 466 (“LaGrand’). In that decision, the Court declared that provisional measures issued under Article 41 of its Statute were binding on the parties to a dispute. In reading the facts of LaGrand, one can understand why the Court would feel compelled to follow the course that it did. But once the course was set upon, and the award of interim relief deemed capable of giving rise to a separate legal obligation, the Court must have apprehended that its decision would affect its legitimacy as an adjudicator of inter-state disputes.

The precise nature of those consequences is now being demonstrated by the award of provisional measures in Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) (“Border Area”), and the separate dispute to which it has been joined since earlier this year, Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (“San Juan River”). Nicaragua has made multiple attempts to obtain provisional measures in relation to San Juan River but these will not be addressed here for the sake of concision.  

By way of background, the Border Area case was first filed by Costa Rica in 2010, and concerned the alleged “incursion into, occupation of and use by Nicaragua’s Army of Costa Rican territory as well as breaches of Nicaragua’s obligations towards Costa Rica”. Costa Rica asserted that in two separate incidents, Nicaraguan troops had occupied Costa Rica’s territory in connection with the construction of a canal (or ‘caño’) through said territory from the San Juan River to Harbor Head Lagoon and that the canal, if completed, would cause significant environmental damage through diversion of the watercourse and deforestation of the occupied area. Nicaragua, for its part, asserted that the territory in question was actually Nicaraguan, and its actions were appropriate with its sovereign right to do with its territory as it saw fit. Nicaragua further contested Costa Rica’s description of its activities as the cutting of a canal, but submitted that it was merely dredging a pre-existing natural watercourse so as to return it to its prior state.

II. Provisional measures and the Order of 8 March 2010

To this end, Costa Rica’s application of 18 November 2010 included a request for interim relief under Article 41 of the ICJ Statute. In particular, Costa Rica requested: (1) the withdrawal of Nicaraguan troops from Costa Rican territory; (2) that construction of the canal cease immediately; (3) that the felling of trees and other acts of deforestation cease immediately; (4) that the dumping of sediment extracted from the canal cease immediately; (5) that the dredging of the canal by Nicaragua cease immediately; (6) that Nicaragua refrain from any other act that might prejudice Costa Rican rights, or otherwise aggravate or extend the dispute.

In its Order of 8 March 2011, ICJ Reports 2011 p 6, the Court granted provisional measures, but not in precisely the same terms as requested by Costa Rica in its application. Rather, given the contested nature of the territory and the need to protect certain wetlands within it, the Court ordered that “[e]ach Party shall refrain from sending to, or maintaining in the disputed territory, including the caño, any personnel, whether civilian, police or security”. This injunction, however, was subject to a caveat, namely that Costa Rica was allowed to send personnel into the area for the purpose of preventing irreparable environmental harm, subject to notifying Nicaragua and consulting with the Secretariat of the Ramsar Convention (which is an international treaty for the conservation and sustainable utilisation of wetlands). The Court further ordered that neither party engage in any behaviour that might aggravate or extend the dispute, and required that both parties keep the Court informed as to their compliance.

III. The modification proceedings and Order of 16 July 2013

On 23 May 2013, Costa Rica filed a motion with the Court requesting modification of its Order of 8 March 2011 under Article 76 of the Court’s Rules of Procedure. Costa Rica asserted that whilst Nicaraguan military personnel may have withdrawn from the contested area, Nicaragua continued to maintain an educational programme whereby young Nicaraguan nationals were sent into the zone. Nicaragua, in response, asserted that these nationals were private persons belonging to the Guardabarranco Environmental Movement, undertaking ‘environmental sustainability’ activities within the contested area, and hence outside of its control. Costa Rica, in return, pointed out that the ‘environmental sustainability’ operations in question looked suspiciously like a concerted effort to prevent the canal from closing over through the accretion of sediment, and that far from comprising an independent organization, a not insubstantial number of these persons were members of the government-backed Sandinista Youth. Moreover, Costa Rica expressed concerned that the presence of these occasionally abusive individuals was hindering its ability to undertake remedial works as permitted by the Court’s Order and that ‘irremediable harm in the form of bodily injury and death’ was a distinct possibility.

The Court, in its Order of 16 July 2013, considered that the presence of such a private—or at the very least ‘non-military’—movement was not considered when it made its earlier Order, and asserted that the presence of the movement reflected a change in circumstances which might justify the modification of the Order under Article 76 of the Rules. However, the Court was not convinced that the circumstances identified by Costa Rica translated to an additional element of urgency so as to require the modification of the Order. However, it did not wish to indicate a total lack of concern with what was taking place within the area, noting that:

Nevertheless, the presence of organized groups of Nicaraguan nationals in the disputed area carries the risk of incidents which might aggravate the present dispute. That situation is exacerbated by the limited size of the area and the numbers of Nicaraguan nationals who are regularly present there. The Court wishes to express its concerns in this regard.

On this basis, the Court (at para 38) reaffirmed the measures indicated in its Order of 8 March 2011, reminded the parties that such measures were binding and that a breach of the Order could be effected by either an act or an omission, e.g. by permitting the continued presence of private persons in the disputed area. Finally (in para 39), the Court noted that its findings were “without prejudice as to any finding on the merits concerning the Parties’ compliance” with its Order of 8 March 2011, an indication that it was willing to take any breach of provisional measures into account at a later date and a warning to Nicaragua as to the potential consequences of further omissions.

IV. The current situation: Costa Rica’s request for new measures

On 24 September 2013, Costa Rica filed a further request in connection with the case, this time requesting an entirely new brace of provisional measures, namely: (1) that any and all dredging work in the contested area be immediately suspended; (2) that Nicaragua stage a full withdrawal from the area; (3) that Costa Rica be permitted to undertake remedial works without the need to inform Nicaragua or consult with the Ramsar Secretariat; and (4) that each party be required to inform the Court of compliance within one week of the grant of interim relief.

In its application, Costa Rica stipulated that this renewed request was brought on by a further escalation of Nicaragua’s activity in the border area. Specifically, satellite imagery had revealed that Nicaraguan personnel had not only failed to leave the area, but it was in the process of digging two new canals and was perilously close to achieving its goal of diverting the river. One of these images, taken on 5 September 2013, actually showed a Nicaraguan dredger in one of these new channels.  Furthermore, Nicaragua had apparently constructed a military encampment close to the planned emergence point of one of the canals, which was itself in the disputed area. Attempts by Costa Rican officials to enter the area pursuant to the Court’s original Order were blocked by Nicaraguan military personnel and attempts at inter-governmental communication failed when Nicaragua flatly denied that the canals were being built, despite the provision of the satellite imagery. Nicaragua later altered its position, claiming that the unauthorized works were the efforts of a rogue operator and halting the dredging works altogether, arguing thereby that the imposition of new provisional measures was entirely unnecessary as there was no breach of the Court’s Order currently en train.

V. The Catch-22 of LaGrand: provisional measures are binding, and so no breach can ever be found?

The setting out of the above procedural history in great detail is intended to demonstrate the level of indulgence that the Court has shown to Nicaragua to date. If the assertions of Costa Rica are correct, then the Court’s Order of 8 March 2013 has arguably been breached not once, but twice—and indeed the second breach has been admitted by Nicaragua. On the first occasion, the Court’s approach was to simply reaffirm the provisional measures and caution Nicaragua. We have not yet seen what its response to the second, more flagrant breach will be.

It is here that we return to Heller’s Catch-22, in order to ask why the Court has been reluctant to censure Nicaragua for its alleged violations of its previous Order. It may be helpful to refer to the precise nature of the eponymous catch (Catch-22, 52):

There was only one catch and that was Catch-22, which specified that a concern for one’s own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane, he had to fly them. If he flew them, he was crazy and didn’t have to; but if he didn’t want to, he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

‘That’s some catch, that Catch-22,’ he observed.

‘It’s the best there is,’ Doc Daneeka agreed.

In the Border Area case, the catch arises from the earlier decision in LaGrand, coupled with the realization that—in the case of the ICJ, at least—a breach of provisional measures is unlikely to result in practical consequences notwithstanding the fact that they are formally of binding nature. If the Court awards provisional measures and they are ignored, then the identification of a breach of those orders will lead to the realization that the Court is impotent. If the Court awards provisional measures and fails to identify the breach, then the Court will not per se be seen to be impotent, but the conclusion will be that its Orders are non-binding. On either reading, Nicaragua gets to do what it likes in the disputed area, pending resolution of the dispute.

The above may be readily dismissed as a glib attempt by the author to demonstrate what many already know about international law, to wit, that a lack of enforcement mechanisms renders it, at best, a weak system of law—a point acknowledged expressly by Sir Hersch Lauterpacht, amongst others. But this elides a more serious point, namely that the attitude of Nicaragua in the Border Area case represents the most serious challenge to the legitimacy of the ICJ on the question of provisional measures since the behaviour of the US in LaGrand, and that a refusal to act will diminish the Court in the eyes of the international community, a point made by counsel for Costa Rica in the most recent oral proceedings (CR 2013/24, para 33 (Crawford)). The Court itself likely also appreciates this fact, as demonstrated by its threat to Nicaragua in its Order of 16 July 2013.

What then, should the Court do, in the event that it finds that sufficient evidence exists to determine that its Order of 8 March 2011 has (again) been breached? The author is of the view that the Court has little choice but identify the breach and accede to the Costa Rican request for further interim relief—or such further interim relief as it sees fit per Article 76(2) of its Rules. If further breaches follow, then the Court make good on its ultimatum, and cause Nicaragua’s conduct to be reflected adversely in its judgment on the merits. Beyond that point, it is uncertain what should result, but at the very least, to do otherwise on the facts as presented would be to demonstrate that LaGrand was little more than an empty threat and to—not unfairly—give rise to the exclamation ‘provisional measures are binding—so what?’ And more than that, such a course of action would have the effect of demonstrating the true meaning of the whole conundrum reflected on Catch-22 (Catch-22, 467):

‘Catch 22,’ the old woman repeated, rocking her head up and down. ‘Catch-22. Catch-22 says they have a right to do anything we can’t stop them from doing.’

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