On 2 February 2018, the International Court of Justice issued a landmark judgment on compensation for environmental damages in Certain Activities Carried Out By Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation Owed by the Republic of Nicaragua to the Republic of Costa Rica. The ICJ’s decision was followed shortly thereafter on 9 February 2018 by a significant Advisory Opinion of the Inter-American Court of Human Rights (IACtHR), declaring the fundamental importance of the right to a healthy environment to human existence and States’ corollary obligations to protect human rights through marine environmental protection in the Greater Caribbean region (summary report of the Advisory Opinion in English found here, while the full text of Colombia’s request for advisory opinion on this question can be found here). The 2 February 2018 ICJ Compensation Judgment follows its 16 December 2015 Judgment declaring Nicaragua liable for activities in Costa Rican territory, such as the excavation of three caños and establishment of military presence in said territory (see my previous comments on evidentiary approaches in this 2015 Merits Judgment here.)
While both the 2 February 2018 ICJ judgment on compensation and the 9 February 2018 IACtHR Advisory Opinion signify the central importance of international environmental norms to international human rights law, the methodological approaches taken by the World Court and the regional human rights court for Latin America reveal some sharp differences between these tribunals. In adjudging compensation for environmental damages caused by Nicaragua to Costa Rica, the ICJ took a rather ‘incrementalist’ approach to quantification and empirical proof for every head of damage asserted – a methodologically ambiguous and context-sensitive approach which is not easily replicable for future environmental cases, given the complex nature of environmental damages in any given dispute. The ICJ did not adopt Costa Rica’s theory of an “ecosystem approach” to damage assessment, and neither did it adopt Nicaragua’s position that “replacement costs” be used to estimate environmental damages. Unlike the IACtHR Advisory Opinion’s broad acceptance of States’ continuing individual obligations towards preventing transboundary harm that could ensue from infrastructure projects in the Greater Caribbean, the ICJ Judgment carefully reduced Costa Rica’s claim of compensation by delineating between Nicaragua’s compensatory duties as part of environmental reparations, and Costa Rica’s own environmental mitigation duties in the presence of foreseeable environmental damage. These recent developments suggest that, while it is recognized that all States share responsibilities towards environmental protection especially under the precautionary principle, the precise allocation of environmental reparations owed through compensation will not always lie strictly on the side of the State that is the environmental tortfeasor, at least where the ICJ is concerned.
The following subsections summarize the 2 February 2018 ICJ Judgment reasoning on compensation, the 9 February 2018 IACtHR Advisory Opinion, and conclude with some comments on methodologies used for damages assessment and environmental reparations, especially in the thorny form of lump-sum upfront compensation for environmental damage impacting present and future generations.