Reparation for Climate Change: The Successes and Limits of Litigation

Jason Rudall

Chapter 4: Full and Fair Reparation for Environmental Damage — The Story So Far…

1.Introduction

This chapter engages with the law of reparations in the context of environmental damage and has particular relevance to scenario 7. It assesses the legal framework that has emerged and explores the jurisprudence of courts and tribunals in this area with a view to identifying the tools that have been developed and may be helpful for future cases involving reparation for climate change. A special emphasis is placed on the case law of the International Court of Justice (ICJ) concerning environmental compensation, critically appraising the two major decisions that have been handed down in this area. The chapter also argues that just compensation for environmental damage can be both constrained and facilitated by the law of state responsibility. While the principle of full reparation is well-established in international law,¹ its application to situations of environmental damage reveals blind spots, challenges and inequities. But there may also be opportunities to re-calibrate traditional doctrines, methodologies and litigation processes so that they are better suited to the realities of contemporary environmental damage. In this context, I discuss several problems: under-reparation, gravity of wrongful conduct, capacity to pay compensation as well as access to expertise or local knowledge and experience. That said, the best practices of certain courts and tribunals represent green shoots of hope for addressing these issues and the present chapter suggests that they should be cultivated further.

2.The Obligation to Repair

It is a fundamental principle of the law of state responsibility that a state is responsible for the consequences of its actions if it breaches its international obligations or causes harm to another state or its citizens, including transboundary environmental harm. As the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) set out, “every internationally wrongful act of a State entails the international responsibility of that state.”² Where a state has caused damage that results from an internationally wrongful act, reparation should remedy the harm. In fact, the breach of a primary obligation under international law results in another obligation to repair the damage and/or compensate the victim in a sufficient manner. Importantly, it has been well-established through the case law of international courts and tribunals that an injured party should be put back in the same position as if the illegal act had not occurred.³

In its 1928 Chorzów Factory case, the Permanent Court of International Justice (PCIJ) set out the foundational precept that “the breach of an engagement involves an obligation to make reparation in an adequate form”⁴ and “that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.”⁵ The ICJ has since confirmed the principle of full reparation, not least with respect to cases involving the environment.⁶ This is also reflected in ARSIWA. Indeed, Article 31(1) ARSIWA provides that “[t]he responsible state is under an obligation to make full reparation for the injury caused by the internationally wrongful act.”

The International Law Commission (ILC), which was responsible for drafting ARSIWA, has said that assessments of injury should be “inclusive” and include both material and moral damage.⁷ Material damage is understood as “damage to property or other interests of the State and its nationals which is assessable in financial terms” while moral damage “includes such items as individual pain and suffering, loss of loved ones or personal affront — S. 81 —associated with an intrusion on one’s home or private life.”⁸ All of this suggests that those assessing environmental damage for the purpose of state responsibility and the calculation of reparation ought to embrace a holistic approach, relying on methodologies that capture the entire spectrum of damage caused.

As is well known, the three main forms of reparation include restitution, compensation, and satisfaction. We now turn to consider one of these modes — compensation — which has been awarded in several significant cases involving environmental damage and is particularly worthy of consideration given its relevance for scenario 7.

3.Adjudicating Compensation

While restitution is the preferred method of reparation under ARSIWA, it may be that this is materially impossible or involves a disproportionate burden for the wrongdoing state, as is often the case with environmental damage. Indeed, many forms of harm to the environment are simply irreversible or the nature of the damage means it may be more appropriate to compensate the harmed state on whose territory the damage has taken place for restoration works.⁹

Compensation for damage resulting in the loss of human life or bodily injury, loss or damage to property and loss of income is permissible under international law.¹⁰ In fact, generally speaking, compensation is often requested and awarded in international litigation.¹¹ Returning to the Chorzów Factory case, the PCIJ stated that compensation should comprise the

payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would be covered by restitution in kind or payment in place of it — such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.¹²

While this is the approach that has also been adopted by ARSIWA, there has, in fact, been scant guidance on how to appraise compensation for environmental damage. That said, the ICJ has noted that any assessment of compensation — S. 82 —should start from the submissions of the parties, potentially in separate proceedings from the merits such that it can hear specific evidence that speaks directly to the assessment of damages.¹³ What is more, in its Fisheries Jurisdiction case, the ICJ said that:

In order to award compensation the Court can only act with reference to a concrete submission as to the existence and the amount of each head of damage. Such an award must be based on precise grounds and detailed evidence concerning those acts which have been committed, taking into account all relevant facts of each incident and their consequences in the circumstances of the case. It is only after receiving evidence on these matters that the Court can satisfy itself that each concrete claim is well founded in fact and in law.¹⁴

Other important points to keep in mind when adjudicating compensation for environmental harm are that damages must be subject to causation and remoteness analyses as well as certain evidentiary requirements and principles of accounting, all of which seek to reduce the possibility of speculative damages being awarded.¹⁵ And where the injured party has failed to mitigate damages or is liable for contributory fault, this will likely have an impact on the compensation awarded too.¹⁶

4.Calculating Compensation

In calculating the amount of compensation due, Article 36(1) ARSIWA notes that the wrongdoer should “compensate for the damage caused … insofar as such damage is not made good by restitution” and Article 36(2) goes on to highlight that “[t]he compensation shall cover any financially assessable damage including loss of profits insofar as it is established.” In earlier drafts of ARSIWA, the term “economically assessable” had been used instead of “financially assessable” but it was thought the latter would be broader and cover loss such as the extinction of species that may have had no economic value as such.¹⁷ The ILC has also emphasized that compensation may be for injury caused to the state, its property, citizens, companies or agents, as well as for costs incurred — S. 83 —by the state in remedying or mitigating the damage.¹⁸ In some situations, compensation may not be awarded. The ILC has said that the inclusion of the term “financially assessable damage” in Article 36(2) ARSIWA “is intended to exclude compensation for what is sometimes referred to as “moral damage” to a State, ie the affront or injury caused by a violation of rights not associated with actual damage to property or persons.”¹⁹ As such, while the ILC has evidently intended that compensation be appraised and awarded in a comprehensive manner, it has also placed relatively clear limits on it.

The limits of compensation are also evident in several cases decided by international courts and tribunals. For example, the ICJ was of the view that compensation would be an inappropriate form of reparation in its Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), where the Court declined Bosnia’s request for compensation.²⁰ According to the Court in this case, it could not “regard as proven a causal nexus between [Serbia’s] violation of its obligation of prevention and the damage resulting from the genocide at Srebrenica,” as well as opining that “financial compensation is not the appropriate form of reparation for the breach of the obligation to prevent genocide.”²¹ The Court also rejected Bosnia’s claim for symbolic compensation, expressing the view that, in the context of reparation, Serbia’s “non-compliance with the provisional measures ordered is an aspect of, or merges with, its breaches of the substantive obligations of prevention and punishment laid upon it by the Convention.”²² The Court did, however, award satisfaction in the form of a declaration in its judgment.²³

5.Compensation Awarded by the ICJ

The ICJ has not frequently awarded compensation as a form of reparation. Despite doing so in its first ever case, the Corfu Channel case, the Court has not had many occasions to provide further guidance on how compensation should be appraised.²⁴ As such, this section will focus on the few instances that the Court has provided such guidance.

In the aforementioned Corfu Channel case, the UK sought compensation for the replacement of a naval ship, damage to another vessel as well as the deaths and injuries of naval personnel that resulted from mine explosions. In its judgment, the Court assessed that the replacement cost of the destroyer at the time of its loss should be the basis for the valuation of compensation for the loss of the naval ship.²⁵ As for the damage to the other naval vessel, an expert assessment was relied upon by the Court and for the claim relating to the injured or deceased personnel, the Court was guided by “the cost of pensions and other grants made by it to victims or their dependents, and for costs of administration, medical treatment, etc” in arriving at its assessment of compensation.²⁶

Interestingly, the ICJ has allowed itself some flexibility in calculating compensation by referring to so-called equitable considerations. In the Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) (Compensation) case — the second case in which the ICJ awarded compensation and more than 60 years after the Corfu Channel case — the Court observed that:

Quantification of compensation for non-material injury necessarily rests on equitable considerations (...) which above all involves flexibility and an objective consideration of what is just, fair, and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred.²⁷

Ultimately, the Court awarded compensation for the non-material injury suffered by Mr Diallo as well as for the material injury he sustained relating to his personal property.²⁸ It is also interesting to note that the ICJ rejected a claim in this case for loss of earnings as it said there had been a lack of evidence for this claim and that the amount claimed was speculative.²⁹

While the contribution of courts and tribunals has been helpful in clarifying certain aspects of the law of reparations, there remain many uncertainties in this area which, as will be seen, present a challenge for judicial actors who encounter novel situations in which compensation is claimed for damage caused by an internationally wrongful act.

6.Breaking New Ground: The ICJ and Compensation for Environmental Damage

Such a novel situation was encountered by the ICJ in its third ever compensation decision. In 2018, the Court had to adjudicate compensation for environmental damage in its Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) (Compensation) case.³⁰ This was the first time the ICJ was tasked with such an exercise. The approach of the Court and lessons to be learned from this case are particularly relevant for scenario 7 so it deserves special consideration.

Each of the parties in this case put forward significantly different methodologies for calculating the environmental damage, which did not help the Court. Costa Rica argued for an “ecosystem services approach” and Nicaragua advocated that the Court adopt a “replacement costs approach.” It was no surprise then that the parties came to very different conclusions on the amount of compensation owed, with Costa Rica estimating that the environmental compensation ought to be as high as USD 6.711 million while Nicaragua suggested it should be as low as USD 188,504.³¹

Under Costa Rica’s “ecosystem services approach” the goods and services rendered by the environment form the basis of its valuation. Some of these have quite an easily attainable “direct use value” (eg timber) as they are traded commercially for a price while other goods and services are not or cannot be traded on the market and may be accorded an “indirect use value” (eg flood prevention, cultural significance or disease control). Importantly, ecosystem or environmental services may be partially or completely lost as a consequence of environmental harm.

Under Nicaragua’s “replacement costs approach,” the cost of replacing ecological services that have been damaged and/or preserving an equivalent area while the affected area recovers was the value it said should be used to calculate the compensation owed. Nicaragua argued that this was the methodology that had been adopted for analogous situations in the past.³² Nicaragua also said that restoration costs, which are the expenses incurred as a result of remediation works, might also be compensable.³³

In its decision, the Court emphasized that compensation for damage to the environment was possible under international law.³⁴ However, the ICJ decided not to choose between the two methodologies put forward by the parties, but rather “[w]herever certain elements of either method offer a reasonable basis for valuation, the Court [would] nonetheless take them into account.”³⁵ The Court chose to assess environmental damage using what it termed an “overall valuation approach.”³⁶ This method involved calculating compensation based on a comprehensive assessment of the impairment or loss of environmental goods and services, rather than determining the value of specific categories of these goods and services and the time required for their recovery. The Court’s reasons for selecting the “overall valuation” methodology are also noteworthy. Firstly, it aimed to adopt an approach that best accounted for the connection between Nicaragua’s unlawful activities and the harm done to specific environmental goods and services. Secondly, it found this approach to be more suitable than others, given the unique characteristics of the affected area — a protected wetland under the Ramsar Convention with closely interconnected environmental goods and services. Thirdly, the overall valuation method allowed the Court to factor in the natural regeneration capacity of the damaged area. What is more, the ICJ thought it was appropriate that certain related costs and expenses incurred by Costa Rica in the course of its restoration activities ought to be compensable (eg monitoring costs).

To justify the potential uncertainties in valuing environmental damage, the Court referred to the Diallo case, which — as indicated above — relied on “equitable considerations” to determine the amount of compensation.³⁷ This also gave the Court the flexibility to consider the specific contexts and circumstances of the parties involved. Moreover, it referred to the well-known Trail Smelter dispute between the United States and Canada,³⁸ which in turn refers to a US Supreme Court decision³⁹ stating that, “where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person” and that, as such “it will be enough if the evidence — S. 87 —show the extent of damages as a matter of just and reasonable interference, although the result be only approximate.”⁴⁰

Before calculating the precise amount of compensation owed, the Court first aimed to assess the existence and extent of the damage and to establish whether there was a direct and certain causal link between the environmental harm and Nicaragua’s wrongful actions.⁴¹ Similarly, when evaluating the costs and expenses that Costa Rica claimed to have incurred from its restoration and monitoring activities, the Court emphasized the need for a connection with Nicaragua’s wrongful conduct. If such a link was absent, the Court denied compensation.⁴²

The Court’s judgment is both significant and innovative in awarding compensation for environmental damage. However, it is also notable for its bold statements of principle, methodological choices, some internal contradiction, and for awarding greatly lower valuations for environmental damage than Costa Rica had sought. In fact, the amount awarded was only about 5% of Costa Rica’s claim. Without a more detailed explanation of its methodology for valuing environmental damage and the application of its nexus test to the incurred costs and expenses, it is challenging to assess whether the Court was justified in awarding such a low amount. Nevertheless, the Court had another opportunity to clarify several of these issues in a subsequent case involving compensation for environmental harm just four years later.

7.Experts and Equity Gaining Ground

The ICJ also awarded compensation for environmental harm in its Armed Activities on the Territory of the Congo (Democratic Republic of the Congo (DRC)

v. Uganda) case.⁴³ As background, the Court previously ruled in favor of the DRC and held that Uganda had violated the DRC’s sovereignty and territorial integrity in its 2005 judgment on the merits.⁴⁴ There, the Court determined that Uganda had committed acts of aggression against the DRC by deploying troops into its territory without consent and providing support to rebel groups. It concluded that Uganda’s actions had inflicted substantial harm on the DRC, — S. 88 —including damage to persons, property, and natural resources. In 2022, the ICJ issued a judgment on the matter of reparations.⁴⁵ In short, the ICJ awarded USD 225,000,000 for damage to persons, USD 40,000,000 for damage to property, and USD 60,000,000 for damage to natural resources.⁴⁶

The Court underlined the importance of wiping out all of the consequences of the internationally wrongful act, in line with the principle established in the Chorz ó w Factory case.⁴⁷ At the same time it stated that, in cases where there is uncertainty regarding the exact amount of damage caused, it could “award compensation in the form of a global sum, within the range of possibilities indicated by the evidence and taking into account equitable considerations” while also highlighting this “… may be called for where the evidence leaves no doubt that an internationally wrongful act has caused a substantiated injury, but does not allow a precise evaluation of the extent or scale of such injury.”⁴⁸ The Court observed that other international tribunals, such as the Eritrea–Ethiopia Claims Commission, had similarly awarded global sums or relied on equitable considerations as well.⁴⁹

Regarding the valuation of damage to natural resources, the Court did not adopt the methodology proposed by the DRC and instead placed significant reliance on the Court-appointed expert. Although the ICJ did not give many details, it did say that “the methodological approach taken by the expert report is convincing overall” and that “the approach taken in the expert’s report, which is based on estimates derived from reliable economic data, scientific publications, and the case file, produces a more persuasive assessment and valuation of the damage.”⁵⁰ As the Court ultimately also awarded a “global sum,⁵¹ it remains somewhat unclear what the Court included and excluded in its final valuation. Nevertheless, the ICJ’s reliance on a Court-appointed expert and its emphasis on equitable considerations, particularly in light of the fact that Uganda is a developing country, are undoubtedly positive developments in this relatively nascent field of valuing compensation for environmental harm.

8.Problems in Compensation for Environmental Damage

a.Under-Reparation

In light of the emerging jurisprudence on reparation for environmental damage explored above, I suggest there are four main challenges that have arisen. First, the scope and character of certain forms of environmental damage, such as climate change, the permanent loss of biodiversity and destruction of ecosystems, the degradation of the atmosphere and ozone layer, can likely never be properly valued nor fully repaired. ARSIWA refers to “financially assessable” damage. But what “financially assessable” means is open to much debate. Does this include, for example, the loss of certain ecosystem services, like carbon sequestration, or non-use values, like the aesthetic importance of nature? As alluded to already, the ILC has indicated that the formulation under ARSIWA is intended to be “inclusive” and this ought to guide any interpretation.⁵²

It was highlighted above that the ICJ in Costa Rica v. Nicaragua indicated that environmental damage per se is compensable. However, there remains uncertainty about the methodology that should be used to value environmental damage. This has not been clarified by the Court’s latest decision in DRC v. Uganda. In both cases the ICJ adopted so-called “overall valuation” or “global sum” approaches. In doing so, it does not elaborate upon the details of these approaches, except to say that they “can account for the correlation between the removal of the trees and the harm caused to other environmental goods and services,”⁵³ that they are “dictated by the specific characteristics of the area affected,”⁵⁴ that they take “into account the capacity of the damaged area for natural regeneration,⁵⁵ or that they allow for an equitable award of compensation within a range of possibilities and including equitable considerations.⁵⁶ This makes it difficult to know what methodology the Court would adopt with respect to our scenario 7, except that it may opt for some sort of overall valuation or global sum approach again. And, as it did in DRC v. Uganda — but not Costa Rica v. Nicaragua — the Court might rely on the findings of a Court-appointed — S. 90 —expert, although it is similarly difficult to say with certainty what the Court found convincing in the Court-appointed expert’s evidence.

Assessments of environmental damage must recognize that this form of harm is often gradual, cumulative and catalyzing. In this context, “ecosystems approaches” which recognize that different aspects of the environment are mutually dependent should be elaborated. We should not exclude from view damage that cannot be valued by reference to market value or the loss of environmental goods and services that may have no economic value to human beings. In its resolution on Responsibility and Liability under International Law for Environmental Damage, the Institut de droit international suggested that additional criteria should be constructed for the assessment of damage. Indeed, it proposed that “[i]mpairment of use, aesthetic, and other non-use value, domestic or international guidelines, intergenerational equity, and generally equitable assessment should be considered as alternative criteria for establishing a measure of compensation.”⁵⁷

Second, there are unique challenges with respect to causation and attribution where environmental damage occurs that must be clarified. For example, it can be very difficult to assess whether harm caused is a direct or indirect result of a given activity. Here, courts and tribunals might learn lessons from the United Nations Compensation Commission (UNCC), which relied on a range of direct and proximate causation standards to deal with problems like these.⁵⁸

Third, another challenge is where environmental harm is caused by multiple actors. It is difficult to assess who has contributed what and, critically, which actors have caused damage that crosses the threshold of significant harm. Even if several states can commit internationally wrongful acts as Article 47(1) ARSIWA envisages, it is still necessary to demonstrate the existence of a causal nexus between the damage and the acts carried out by the accused group of states. The Guiding Principles on Shared Responsibility in International Law recognize that environmental damage is often caused by the contribution of several states.⁵⁹ Even where the contribution to harm is negligible, the Principles suggest there may still be an obligation to provide partial reparation for indivisible harm that might be caused. Who receives reparation, — S. 91 —particularly compensation, can be similarly complex. Indeed, that certain types of environmental damage may be experienced by many or even all states and individuals in varying degrees makes this a Herculean task.

Fourth, if an erga omnes obligation is violated and damage to areas beyond national jurisdiction has been caused, states not specifically injured may invoke responsibility and call for cessation as well as non-repetition, but they may not seek compensation as they have not suffered any financially assessable damage. This highlights a flaw in the logic of state responsibility. Where, for example, environmental damage leads to irreversible harm or the extinction of species for which no state had a commercial interest, it is unclear who or what should be compensated. Some have called for trusts to be set up in such circumstances, which may offer a practical solution that ultimately serves environmental restoration.⁶⁰

b.Gravity of Wrongful Conduct

Whether the conduct of the parties in a given case should be accounted for in assessments of compensation is another important aspect to clarify. While ARSIWA excludes punitive, expressive or exemplary damages, others suggest it is possible to take account of gravely wrongful conduct in the calculation of compensation. The ILC, the Institut and certain courts have also indicated the behaviour of the parties might be relevant to the evaluation of compensation.⁶¹ In Costa Rica v. Nicaragua, the ICJ was mindful of the fact that the environmental harm there was to an internationally protected wetland while Judge Dugard in his dissenting opinion suggested the gravity of Nicaragua’s wrongful behavior should have been recognized in the assessment of damages by the majority of the Court.⁶² In the Alabama Claims arbitration, the dissenting opinion of Sir Alexander Cockburn noted that “arbitrators should … take into account not only the loss incurred but the greater or less gravity of the default itself.”⁶³ What is more, in certain arbitral practice, the amount of compensation for expropriated property can of course vary depending on whether the taking was lawful or unlawful.

Some scholars also argue that there may be some margin to take behavior into account where the conduct of the party who has caused environmental damage is particularly egregious or deliberate.⁶⁴ Others suggest very grave environmental damage ought to be deterred through compensation.⁶⁵ Such considerations should encompass the degree of fault, the nature of the breach of an international rule, the severity of the violation or aggravated damages, any intent or negligence.

It should be recalled that gravity is not alien to the law of state responsibility. Indeed it features in other ways under ARSIWA, not least with the violation of peremptory norms. Article 41 ARSIWA provides for a form of aggravated responsibility that triggers particular consequences for the rest of the international community. That said, the ILC has said specifically that “the award of punitive damages is not recognized even in relation to serious breaches of obligations arising under peremptory norms.”⁶⁶ As a result, on its face, aggravated damages or compensation intended to have a deterrent effect is not permitted under the law of state responsibility. However, some of the anxiety surrounding punitive damages is perhaps no longer justified because, as certain scholars suggest, without an objective metric for quantifying moral or material damages, compensation is likely to be inflated by gravity anyway as adjudicators will inevitably be influenced by the nature of the unlawful act.⁶⁷

In our scenario 7, it is the Amazon that is at stake. It represents the lungs of the Earth, providing a wide range of unique ecosystem services. One might hope the Court considers — formally or informally — that damage to it represents a certain gravity and factors this into its assessment of compensation, as Judge Dugard suggested should have been done in Costa Rica v. Nicaragua.⁶⁸

c.Capacity, Equity and the Obligation to Repair

The ICJ has referred to equitable considerations in its case law as a way of giving itself flexibility in the assessment of reparation. But these might also help mitigate the financial impact an award of compensation may have. It is pertinent to note here the dicta of the Eritrea–Ethiopia Claims Commission that large — S. 93 —amounts of compensation can have a crippling effect on the state obliged to pay. The Commission was “mindful … that these countries are among the poorest on earth” and noted that “both Parties sought amounts that were huge.”⁶⁹ It observed that the amount claimed by Ethiopia was three times the size of Eritrea’s total national product, that “large damages awards might exceed the capacity of the responsible State to pay” and “could result in serious injury to its population,” including a detrimental impact on human rights.⁷⁰ While the Commission ultimately did not have to decide whether to cap the amount of compensation awarded in light of the situations of the parties, such considerations are novel in the assessment of compensation. Interestingly, in its DRC v. Uganda decision, the ICJ — referring to the Eritrea–Ethiopia Claims Commission’s dicta — said it would take Uganda’s capacity to pay and the impact on the needs of the Ugandan population into account when determining the amount of compensation due and the terms of payment. It was ultimately satisfied that “the total sum awarded, and the terms of payment, remain within the capacity of Uganda to pay.”⁷¹

While ARSIWA does not provide explicitly for capacity to be taken into account, ability to pay nevertheless has some precedent in practice. Indeed, one may point, for example, to the reparations agreements concluded after World War II⁷² or UN Security Council Resolution 687, which asked the Secretary-General to “develop … mechanisms for determining the appropriate level of Iraq’s contribution … taking into account the requirements of the people of Iraq, Iraq’s payment capacity … and the needs of the Iraqi economy.”⁷³ What is more, in particular contexts, a growing corpus of scholarship has called for equitable considerations to play a more prominent role in the determination of reparations.⁷⁴

This is, of course, a complex issue as it may mean that the amount a wrongful actor is obliged to pay is mitigated and that the victim pays for some of the damage itself, but I suggest the inequities that may result from an overly formalistic application of the full reparation principle demand its reassessment in specific contexts, particularly where an impact on human rights might be at stake. In scenario 7 there are two developing countries so equity and considerations of capacity to pay might indeed be relevant for the Court, though Brazil’s capacity to pay would of course be different to that of Uganda.

d.Access to Expertise and Local Knowledge

The ICJ’s practice on expertise has been notably inconsistent. In Costa Rica v. Nicaragua, it is unclear why the Court did not consult experts when assessing the environmental damage. It has this option open to it under Article 50 of the Statute of the ICJ. In fact, in a similar case decided on the same day — Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua)—the Court had appointed its own experts.⁷⁵ The resort to experts in scientific matters has also been encouraged by the ICJ in the past, particularly in the Pulp Mills case.⁷⁶ Moreover, although in the dissenting minority in that case, Judges Simma and Al-Khasawneh stressed the importance of referring to experts in cases involving complex scientific matters.⁷⁷ Following Pulp Mills, scientific experts were resorted to in the Whaling in the Antarctic case,⁷⁸ as well as in several others since.⁷⁹ Further still, in prior and subsequent decisions on compensation, the Court appointed its own experts to assess the environmental damage and amount due, which makes it even more surprising that it did not do so in the Costa Rica v. Nicaragua case.

Beyond the ICJ, in the South China Sea Arbitration Between the Republic of the Philippines and the People’s Republic of China, the Tribunal appointed its own ex curia experts so that the Tribunal could form an “independent opinion” on the environmental impact of the activities conducted by China in the South China Sea.⁸⁰ The UNCC also drew upon the advice of experts, information — S. 95 —gathered from site visits, the submissions of the parties involved, responses to interrogatories that had been sent to claimants, as well as retaining legal and actuarial personnel of its own.⁸¹ What is more, several investment tribunals have appointed experts to analyze scientific matters, as in Perenco v. Ecuador for example.⁸² In the latter case, the Tribunal recognized the difficulty in evaluating environmental damage and compensation on the basis of expert reports provided by the parties. As a result, the Tribunal appointed its own expert. The Tribunal also allowed the parties’ experts to comment on the reports of the Tribunal-appointed expert, bolstering the transparency of the approach adopted by the Tribunal.⁸³ Interestingly, the parties were permitted to make two sets of written pleadings, oral pleadings as well as submit questions to the Tribunal-appointed expert. Further still, during the hearings the partyappointed experts and counsel could hold witness conferences with the Tribunal-appointed expert.⁸⁴ These kinds of procedural safeguards help to ensure that legitimacy issues around the use of experts are addressed.

As an alternative or in addition to expert testimony, courts and tribunals should more frequently encourage and facilitate the intervention of affected individuals as a way of obtaining valuable perspectives from local or indigenous peoples that are impacted in various ways by the dispute at stake. While this has typically not been possible at the ICJ, the Court has seemingly opened up to the possibility in recent jurisprudence. For the first time the ICJ allowed for such an intervention in the context of its 2019 advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965.⁸⁵ In this context, a Chagossian — Marie Liseby Elyse — delivered moving video testimony during the proceedings before the Court.⁸⁶ This permitted — S. 96 —the Court to hear a first-hand account of the impact that state behavior had on an indigenous population and gave an important voice to stakeholders that are too often overlooked in inter-state proceedings.

In some arbitral proceedings, the appointment of subject-matter experts as arbitrators has precedent and may offer a valuable way for courts and tribunals to have access to specialized expertise on the bench. For example, in SAUR

v. Argentina, a human rights expert — Professor Christian Tomuschat — was appointed as an arbitrator.⁸⁷ Moreover, in the Indus Waters Arbitration between Pakistan and India, Professor Howard Wheater — a renowned engineer — was appointed as an arbitrator in the dispute.⁸⁸ Further still, courts and tribunals could engage with other judicial, quasi-judicial or non-judicial bodies to develop norms and for guidance, as has been the case in some limited contexts.⁸⁹ Indeed, several compelling arguments have been made for more formal or informal dialogue between courts and tribunals and other institutions, particularly those institutions that are more specialized in environmental matters.⁹⁰ Such initiatives would help equip courts and tribunals with the necessary tools to properly understand and engage with complex scientific and economic matters, like compensation for environmental damage. And better-informed decisions make truly full and fair reparation much more likely.

9.Conclusion

This chapter has engaged with the legal framework and contemporary jurisprudence on reparation for environmental damage. The nature of certain types of damage, that of cumulative damage resulting from climate change, biodiversity loss or air and marine pollution for example, challenge the traditional precepts of the law of reparations. What is more, although compensation for environmental damage per se now appears well-established under international law, certain analytical tools used to value damage to the environment fail to take into account less visible — but no less problematic — environmental — S. 97 —harm. And these tools also have significant blind spots with respect to particularly egregious environmental harm as well as the capacity of states to bear the costs of compensation. Further still, the need for expertise and local knowledge in judicial decision-making has been exposed in recent decisions involving environmental harm. But there are nevertheless valuable tools being developed by courts and tribunals that will help serve fuller and fairer reparation in the future, particularly in the context of reparation for climate change when judicial actors are faced with such cases. It is hoped that these best practices will be propagated.