"the properties of sediment and soil differ by practically every measure of significance, due mainly to the relative absence of organic matter, humus and microbial life from the former and great abundance in the latter. There is literally a biological world of difference between a body of freshly deposited river sediment (known as alluvium) and a body of mature soil..."9.
He further stated that other ingredients must be added to sediment to create soil, including particularly organic matter, and that it took time for organic matter "to rot down to produce the soil components largely responsible for making soils fertile"10. It would take decades, he continued, "before the organic content and fertility of soils currently forming from caño- filling sediments can approach the values characteristic of soils beneath the old growth/mature tree stands cleared by Nicaragua to make way for the caños"11. Thorne stressed that soil reinforced by roots of live vegetation is much more erosion-resistant12. He concluded by stating that Nicaragua's activities had clearly impacted soil formation and erosion control. This was evidence presented by an expert who had proved to be a credible witness in the hearing on the merits on what he described as "'classic' soil science"13.
"[t]here is some evidence that the soil which was removed by Nicaragua was of a higher quality than that which has now refilled the two caños but Costa Rica has not established that this difference has affected erosion control and the evidence before the Court regarding the quality of the two types of soil is not sufficient to enable the Court to determine any loss which Costa Rica might have suffered"14.
"Environmental regimes should provide for a broad concept of reparation, including cessation of the activity concerned, restitution, compensation and if necessary, satisfaction.
Compensation under such regimes should include amounts covering both economic loss and the costs of environmental reinstatement and rehabilitation. In this context, equitable assessment and other criteria developed under international conventions and by the decisions of tribunals should also be considered."16
In the present case there are a number of equitable considerations that the Court might, and in my judgment, should have taken into account in its quantification of damages. These include the protection of the environment, the importance attached to measures to combat climate change in today's world, and the gravity of the respondent State's actions. Unfortunately, the Court appears to have had regard only to the character of the affected area as an internationally protected wetland.
"an overall valuation approach is dictated by the specific characteristics of the area affected by the activities of Nicaragua, which is situated in the Northeast Caribbean Wetland, a wetland protected under the Ramsar Convention, where there are various environmental goods and services that are closely interlinked. Wetlands are among the most diverse and productive ecosystems in the world. The interaction of the physical, biological and chemical components of a wetland enable it to perform many vital functions, including supporting rich biological diversity, regulating water régimes, and acting as a sink for sediments and pollutants".
However, the Court gave no indication of the monetary value it attached to this consideration. As it was only one of a number of factors considered by the Court in extending the sum proposed by Payne and Unsworth's "corrected analysis" from US$84, 296 to US$120,000 it appears that this could not have been a substantial sum. The paucity of this award will do little to emphasize the importance of the protection of a Ramsar wetland site.
The Court cannot ignore the relevance of the Paris Agreement on climate change22 of 4 November 2016 to its decision in this case. Over 170 States parties, which include Nicaragua and Costa Rica23, have committed themselves to the aim of reducing greenhouse gas emissions and have therefore recognized a link between greenhouse gas emissions and climate change24. The Parties have also recognized the importance of the conservation and enhancement of sinks and reservoirs of greenhouse gases25.
The Court should have had regard to , in terms of which parties aim to reach a "global peaking of greenhouse gas emissions" as soon as possible. To this end, parties determine individual targets for themselves and are under the obligation to make efforts to achieve those targets. Each party is required to "prepare, communicate and maintain successive nationally determined contributions (NDCs) that it intends to achieve" and "shall pursue domestic mitigation measures, with the aim of achieving" these NDCs26. This demonstrates that, although it remains true that at a practical level the world as a whole benefits from clean air and from a reduction in each individual State's carbon emissions, the global community has purposefully adopted an approach to gas regulation that individualizes States' obligations. As a corollary to this approach, gas regulation services are perceived as accruing primarily as a benefit to individual States. Indeed, if the costs and benefits associated with the management of gas regulation services were not individualized in this way, there would be no mechanism for holding individual states to account for efforts to reduce their carbon emissions under . (Costa Rica submitted its NDC in 2015, listing the enhancement of carbon sinks through land-use and reforestation as one of the four mitigation options being considered27.)
"As to the appropriate heads of compensable damage and the principles of assessment to be applied in quantification, these will vary, depending upon the content of particular primary obligations, an evaluation of the respective behaviour of the parties and, more generally, a concern to reach an equitable and acceptable outcome."32
"Full reparation of environmental damage should not result in the assessment of excessive, exorbitant, exemplary or punitive damages. Punitive damages are not usually accepted under international law, but where it would be equitable for compensation to exceed actual loss or some other alternative measurement punitive damages might be envisaged. Deliberate environmental damage might be a case in point."33
"It is sometimes maintained that, having regard to the sovereignty of states, their responsibility for international wrongs is limited to such reparation for wrongs committed by them as does not exceed the limits of restitution, and that damages in excess of those limits (often referred to as penal or punitive damages) are excluded. This view hardly accords either with principle or with practice... international tribunals have in numerous cases awarded damages which must, upon analysis, be regarded as penal..."42.
"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 thereby relieve the wrongdoer from making any amends for his acts. In such [a] case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence shows the extent of the damages as a matter of just and reasonable inference, although the result be only approximate."
Already registered ?