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Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)

  • Jason Rudall (a1)

Should trees have standing? The decision of the International Court of Justice (ICJ or Court) in its Question of Compensation (Costa Rica v. Nicaragua) case of February 2, 2018 provides a pioneering example of damage to the environment being litigated before an international tribunal. The judgment is the first time that the ICJ has adjudicated compensation for environmental damage, and it is only the third time the ICJ has awarded compensation at all. Nevertheless, the ICJ boldly asserted in this case that “damage to the environment, and the consequent impairment or loss of the ability of the environment to provide goods and services, is compensable under international law” (para. 42). That said, the reasoning employed by the Court leaves much to be desired. Given the increasing number of cases involving the environment, it is unfortunate that international courts and tribunals will garner only limited guidance from the methodology adopted by the ICJ in valuing environmental damage.

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1 See Christopher D. Stone, Should Trees Have Standing? Law, Morality and the Environment (3d ed. 2010).

2 Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicar.), Compensation Owed by the Republic of Nicaragua to the Republic of Costa Rica, General List No. 150, at para. 42 (Int'l Ct. Just. Feb. 2, 2018) (hereinafter Question of Compensation).

3 The other two cases are: Corfu Channel (U.K. v. Alb.), Judgment, 1949 ICJ Rep. 4 (Apr. 9); Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Compensation, Judgment, 2012 ICJ Rep. 324 (June 19).

4 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicar.) and Construction of a Road in Costa Rica Along the San Juan River (Nicar. v. Costa Rica), Judgment, 2015 ICJ Rep. 665 (Dec. 16).

5 Id., para. 142.

6 Factory at Chorzów, Jurisdiction, Judgment, 1927 PCIJ (ser. A) No. 9, at 21 (July 27) [hereinafter Factory at Chorzów Jurisdiction]; Factory at Chorzów, Merits, 1928 PCIJ (ser. A) No. 9, at 47 (Sept. 13) [hereinafter Factory at Chorzów Merits].

7 Diallo, supra note 3, at 337, para 33.

8 Trail Smelter Arbitration (U.S. v. Can.), 3 UN Rep. Int'l Arb. Awards 1905, 1920 (Arb. Trib. 1941).

9 Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555 (1931).

10 Quoting Trail Smelter, supra note 8, and Story Parchment, supra note 9.

11 Diallo, supra note 3, at 343, para. 56.

12 Factory at Chorzów Jurisdiction, supra note 6, at 21; Factory at Chorzów Merits, supra note 6, at 47.

13 See, e.g., In the Matter of Oil Spill by the Amoco Cadiz off the Coast of France on March 16, 1978, 954 F.2d 1279 (7th Cir. 1992).

14 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicar.); Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicar.), General List Nos. 157 & 165 (Int'l Ct. Just. Feb. 2, 2018).

15 Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 ICJ Rep. 14, 36, para. 167 (Apr. 20).

16 Id., Dissenting Opinion of Judges Simma and Al-Khasawneh, at paras. 3, 8.

17 Corfu Channel, supra note 3, at 4; Diallo, supra note 3, at 324.

18 Perenco Ecuador Ltd. v. The Republic of Ecuador and Empresa Estatal Petróleos del Eduador (Petroecuador), ICSID Case No. ARB/08/6, Interim Decision on the Environmental Counterclaim (Aug. 11, 2015).

19 Id., para. 587.

20 Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5.

21 See, e.g., id; Perenco v. Ecuador, supra note 18; The Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity – Interpretation and Scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/17, Inter-Am. Ct. H.R. (ser. A) No. 23 (Nov. 15, 2017); Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Cote d'Ivoire in the Atlantic Ocean (Ghana/Cote d'Ivoire), ITLOS Case No. 23 (Sept. 23, 2017). For a fuller exploration of trends and prospects in the extension of environmental protection through litigation, see Jason Rudall, Altruism in International Law (2017) (unpublished Ph.D. thesis, Graduate Institute of International and Development Studies) (on file with author).

22 An adaptation of the Peter Marshall quotation: “When we long for life without difficulty, remind us that oaks grow strong under contrary winds and diamonds are made under pressure,” available at

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American Journal of International Law
  • ISSN: 0002-9300
  • EISSN: 2161-7953
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