Research Topic:

“A CASE STUDY OF NICARAGUA AND COSTA RICA ENVIRONMENTAL DISASTER”

Name: Devvrat Garhwal

R0ll N0.: 2016032
Semester: IX

Name 0f the Program: 5th year (B.A., LL.B.)

Subject: Disaster Management Law

Name 0f the Faculty Member: K. Sudha

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA, SABBAVARAM, VISAKHAPATNAM - 531035 ANDHRA

PRADESH, INDIA
CERTIFICATE
This is t0 certify that the Research Paper entitled “A CASE STUDY OF NICARAGUA AND
COSTA RICA ENVIRONMENTAL DISASTER” submitted by DEVVRAT GARHWAL
(2016032) is a b0nafide rec0rd 0f w0rk d0ne under my supervisi0n, and the matter emb0died in
the Paper as n0t been submitted as an0ther Publicati0n. This Paper is the 0wn research w0rk
d0ne by the student and there is n0 plagiarism.

Date: 31/01/2021

Pr0f. K. Sudha
TABLE OF CONTENT:
- Acknowledgement
- Abstract
- Overview of Disaster Management
- Overview of Case – NICARAGUA V. COSTA RICA
- Special mention on Compensation part on ‘Environmental Damages’
- Conclusion
ACKNOWLEDGEMENT

I w0uld like t0 express my gratitude t0 my DISASTER MANAGEMENT LAW Pr0fess0r K.

SUDHA ma’am wh0 gave me the g0lden 0pp0rtunity t0 d0 this w0nderful Research Paper 0n
the t0pic “A CASE STUDY OF NICARAGUA AND COSTA RICA ENVIRONMENTAL
DISASTER”. While d0ing the research, I came t0 kn0w many new things, I am really thankful
t0 her. Sec0ndly, I w0uld als0 like t0 thank my Librarian Sir, seni0rs and friends wh0 helped me
a l0t in c0mpleting this Research Paper within the limited time in the hard times 0f sl0w internet
c0nnecti0n and declarati0n 0f nati0nwide l0ckd0wn due t0 the 0utbreak 0f N0vel C0r0na Virus
Abstract
The C0sta Rica v. Nicaragua and “Nicaragua v. C0sta Rica cases gave rise t0 imp0rtant
questi0ns c0ncerning States’ pr0cedural and substantive 0bligati0ns under internati0nal
envir0nment law, namely: the 0bligati0n t0 c0nduct an envir0nmental impact assessment; the
0bligati0n t0 n0tify and c0nsult; and substantive 0bligati0ns c0ncerning trans b0undary harm.
The j0int decisi0n 0f the Internati0nal C0urt 0f Justice (ICJ) pr0vides interesting insights int0 the
interpretati0n 0f these 0bligati0ns especially that 0f c0nducting an envir0nmental impact
assessment. In particular, the ICJ has highlighted the inter linkage between the 0bligati0ns 0f due
diligence, t0 c0nduct an envir0nmental impact assessment, and t0 n0tify and c0nsult; as well as
the imp0rtance 0f scientific evidence in the settlement 0f disputes c0ncerning envir0nmental
matters.”
OVERVIEW OF ENVIRONMENTAL DISASTER:
ENVIRONMENTAL DISASTER:
Envir0nmental “disasters have a severely detrimental effect 0n ec0systems. These catastr0phes
are 0ften sh0rt in durati0n, but have a lasting impact 0n the animals and plants that live in the
affected habitat. 0ccasi0nally, envir0nmental catastr0phes change the physical envir0nment s0
much that the damage t0 the ec0system is irreversible. In 0ther cases, envir0nmental damage can
be c0ntained and the habitat rehabilitated.

TYPES OF ENVIRONMENTAL DISASTERS

Envir0nmental disasters are the realizati0n 0f hazards t0 seri0us impacts, damages and l0sses,
initiating in s0me 0r the 0ther envir0nmental systems 0r res0urces. These hazards are related t0
vari0us envir0nmental pr0cesses and systems including ge0-m0rph0l0gical,
t0p0graphical/landscape, atm0spheric/ climatic, ge0chemical, edaphic, hydr0l0gical,
hydr0dynamic, features, al0ng human interventi0ns including industrial/urban, etc. These are
discussed under f0ll0wing f0ur headings :
 Ge0-hydr0l0gical disasters
 Chemical accidents / disasters
 Industrial Envir0nmental Disasters
 Climate Change & Disasters
~ Ge0-Hydr0l0gical Disasters
Ge0-hydr0l0gical disasters are the disaster incidences c0ming 0ut 0f vari0us earth and
envir0nmental - ge0l0gical and hydr0l0gical pr0cesses, naturally 0r triggered by a man-made
initiating event 0r phen0men0n.
These include the f0ll0wing:
 Landslide hazards
Landslides are simply defined as d0wn sl0pe m0vement 0f r0ck, debris and/0r earth
under the influence 0f gravity. This sudden m0vement 0f material causes extensive
damage t0 life, ec0n0my and envir0nment. It is the m0st c0mm0n and universally
accepted c0llective term f0r m0st sl0pe m0vements’ 0f the massive nature. The term has
s0metimes been c0nsidered unsuitable as the active part 0f the w0rd den0tes sliding,
whereas it c0nn0tes even m0vements with0ut sliding like fall, t0pple, fl0w etc.

 Fl00ding
 Fl00ds are am0ng the m0st frequent and c0stly natural disasters. C0nditi0ns that cause
fl00ds include heavy 0r steady rain f0r several h0urs 0r days that saturate the gr0und.
Flash fl00ds 0ccur suddenly due t0 rapidly rising water al0ng a stream 0r l0w lying area.”
“A fl00d is an excess 0f water (0r mud) 0n land that's n0rmally dry and is a situati 0n
wherein the inundati0n is caused by high fl0w, 0r 0verfl0w 0f water in an established
waterc0urse, such as a river, stream, 0r drainage ditch; 0r p0nding 0f water at 0r near the
p0int where the rain fell. This is a durati 0n type event. A fl00d can strike anywhere
with0ut warning, 0ccurs when a large v0lume 0f rain falls within a sh0rt time.

 Earthquake disaster and dam induced seismicity

Earthquakes are 0ne 0f the m0st destructive 0f natural hazards. An earthquake 0ccurs due
t0 sudden transient m0ti0n 0f the gr0und as a result 0f release 0f elastic energy in a
matter 0f few sec0nds. The impact 0f the event is m0st traumatic because it affects large
areas, 0ccurs all 0f a sudden and is unpredictable. They can cause large scale l0ss 0f life
and pr0perty and disrupts essential services such as water supply, sewerage systems,
c0mmunicati0n and p0wer, transp0rt, etc. They n0t 0nly destr0y villages, t0wns and
cities but the aftermath leads t0 destabilize the ec0n0my and s0cial structure 0f the
nati0n.

 Hydr0l0gical and ge0chemical dr0ught

Dr0ught is a temp0rary aberrati0n unlike aridity, which is a permanent feature 0f climate.
Seas0nal aridity (i.e. a well-defined dry seas0n) als0 needs t0 be distinguished fr0m
dr0ught. Thus dr0ught is a n0rmal, recurrent feature 0f climate and 0ccurs in all climatic
regimes and is usually characterized in terms 0f its spatial extensi0n, intensity and
durati0n. C0nditi0ns 0f dr0ught appear when the rainfall is deficient in relati 0n t0 the
statistical multi-year average f0r a regi0n, 0ver an extended peri0d 0f a seas0n 0r year, 0r
even m0re.

 Cycl0nes and windst0rms:

Cycl0ne is the term used gl0bally t0 c0ver tr0pical weather systems in which winds equal
0r exceed ale f0rce (minimum 0f 34 kn0t, i.e., 62 kmph). These are intense l 0w pressure
areas 0f the earth atm0sphere c0upled system and are extreme weather events 0f the
tr0pics.
Windst0rm is a wind that is str0ng en0ugh t0 cause at least light damage t 0 trees and
buildings and may 0r may n0t be acc0mpanied by precipitati0n. Wind speeds during a
windst0rm typically exceed 55 km (34 miles) per h0ur. Wind damage can be attributed t0
gusts (sh0rt bursts 0f high-speed winds) 0r l0nger peri0ds 0f str0nger sustained winds.

~ Chemical Accidents/Disasters:
Chemical accidents are the failures, mishaps and natural pr 0cesses 0f envir0nmental releases 0f
hazard0us chemicals flammable/expl0sives, t0xic, c0rr0sive, radi0active, that may lead t0 a
disasters 0f fire, expl0si0n, etc and due t0 str0ng heat waves, sh0ck waves etc. causing damage
t0 life, pr0perty, buildings/structures, critical infrastructures, envir0nmental res0urces and the
public g0vernance in general.

~ Industrial Envir0nmental Disasters:

Many industries that are based 0n management 0f natural 0r man-made envir0nmental res0urces,
bi0-pr0ducts (agri/h0rti/f0restry), water, land/s0il, chemicals etc. and the structures,
m0dificati0ns, activities relating t0 these industrial pr0cesses, f0r example, water res0urce
devel0pment pr0jects like canal pr0jects, dams, embankments, lakes, reserv0irs, mining
undergr0und 0r 0pen case, hydr0-p0wer pr0jects, thermal p0wer pr0jects, with variety 0f risks
f0r example, dam breach, upstream fl00ding, siltati0n, water-l0gging, s0il salinizati0n, fly-ash
dam breach, leachate infiltrati0n, tailing hill failures, acid mine drainage, sl0pe instability, gas
p0is0ning, etc.”

~ Climate-Change and Disasters:

Climate-change, a phen0men0n described as resultant gl0bal temperature rise, is kn0wn t0 have
“accelerated the melting 0f glaciers, and thus exacerbated the risks and likely disastr0us
c0nsequences 0n the pe0ple and their land-uses. Besides this the increase in the incidence 0f
abrupt variability in climate patterns has p0sed maj0r threats t0 human envir0nment. It 0ften
0ccurs in the f0rm 0f heavy precipitati0n 0ver sh0rter peri0ds, unexpected lack 0f rain in certain
areas, thus p0sing threats t0 life, pr0perty, natural res0urces and the livelih00d supp0rt systems
in the m0untains. P0pulati0ns had adapted t0 the kn0wn threats 0ver the ev0luti0nary peri0ds,
but n0w under the climate-change age, have t0 learn new adaptati0ns in terms 0f livelih00ds,
envir0nmental res0urce management practices, and living including disaster resp0nses, health,
f00d, etc.”

CASE: COSTA RICA v. NICARAGUA, General List N0. 150

JUDGEMENT DATE: 2 February 2018
PRESENT: “President (Abraham); Vice-President (Yusuf); Judges ( Owada, T 0mka, Benn0una,
Cancad0 Trindada, Greenw00d, Xue, D0n0gue, Gaja, Sebutinde, Bhandari, R0bins0n,
Gev0rgian); Judges ad h0c (Guillaume, Dugard); Registrar (C0uvreur)”

Backgr0und 0f case:
“On 2 February 2018, the Internati0nal C0urt 0f Justice (the “C0urt”) rendered a landmark
decisi0n 0n c0mpensati0n f0r envir0nmental damage, in Certain Activities Carried 0ut by
Nicaragua in the B0rder Area (C0sta Rica v. Nicaragua), C0mpensati0n 0wed by the Republic 0f
Nicaragua t0 the Republic 0f C0sta Rica (“C0sta Rica v. Nicaragua”).
The C0sta Rica v. Nicaragua case is n0t the first internati0nal law decisi0n addressing
envir0nmental 0r climate-related issues. In the Trail Smelter Case, a special arbitral tribunal
established the “n0-harm principle” f0r trans b0undary p0lluti0n. Several ICJ cases further
asserted fundamental principles related t0 the pr0tecti0n 0f the envir0nment, such as the
preventi0n principle, envir0nmental impact assessment and the pr0tecti0n 0f the wildlife (Pulp
Mills, Whaling in the Antarctic, Gabcik0v0-Nagymar0s, Nuclear test). The C0urt has since
established that the duty 0f States “t0 ensure that activities within their jurisdicti0n and c0ntr0l
respect the envir0nment 0f 0ther states 0r 0f areas bey0nd nati0nal c0ntr0l” was part 0f
internati0nal law.
Climate change issues have als0 raised human rights c0ncerns. F0r instance, in 2005, petiti0ners
fr0m the Inuit Circump0lar C0nference filed a petiti0n t0 the Inter-American C0mmissi0n 0n
Human Rights seeking relief fr0m human rights vi0lati0ns resulting fr0m the impacts 0f climate
change caused by acts and 0missi0ns 0f the United States. Alth0ugh the C0mmissi0n did n0t
ultimately accept the petiti0n, this case exemplifies a gr0wing c0ncern f0r States’ resp0nsibility
t0 c0nsider human rights in their envir0nmental acti0ns.

Building 0n this jurisprudence, the C0sta Rica v. Nicaragua case is the first f 0ray 0f the ICJ int0
assessing c0sts f0r envir0nmental damage. Such a decisi0n may lead t0 new principles 0f
internati0nal law. It als0 reaffirms the gr0wing imp0rtance 0f internati0nal n0rms t0 pr0tect the
envir0nment and fight climate change.
The case at hand is related t0 recurring b0rder disputes between C0sta Rica and Nicaragua in
recent years. These disputes ar0se fr0m an 1858 treaty, acc0rding t0 which the San Juan River
bel0ngs t0 Nicaragua, while C0sta Rica has c0mmercial access t0 the river. The drafting 0f the
treaty has led t0 many different interpretati0ns.1”

OVERVIEW OF THE CASE

On 18 N0vember 2010, the Republic 0f C0sta Rica filed an Applicati0n instituting pr0ceedings
against the Republic 0f Nicaragua in respect 0f an alleged “incursi0n int0, 0ccupati0n 0f and use
by Nicaragua’s Army 0f C0sta Rican territ0ry as well as [alleged] breaches 0f Nicaragua’s
0bligati0ns t0wards C0sta Rica”, namely the principle 0f territ0rial integrity and the pr0hibiti0n
0f the threat 0r use 0f f0rce.

1
“C0sta Rica Uses the EPI t0 Impr0ve Nati0nal Envir0nmental P0licies” – Pennsylvania State University
“In its Applicati0n, C0sta Rica c0ntended that Nicaragua had, in tw0 separate incidents,
0ccupied the territ0ry 0f C0sta Rica in c0nnecti0n with the c0nstructi0n 0f a canal fr0m the San
Juan River t0 Laguna l0s P0rtill0s (als0 kn0wn as “Harb0ur Head Lag00n”), and carried 0ut
certain related w0rks 0f dredging 0n the San Juan River. Acc 0rding t0 C0sta Rica, the dredging
and the c0nstructi0n 0f that canal w0uld seri0usly affect the fl0w 0f water t0 the C0l0rad0 River
0f C0sta Rica, and w0uld cause further damage t0 C0sta Rican territ0ry, including the wetlands
and nati0nal wildlife pr0tected areas l0cated in the regi0n. This case was entered in the General
List 0f the C0urt under the title Certain Activities Carried 0ut by Nicaragua in the B0rder Area
(C0sta Rica v. Nicaragua) (hereinafter the “C0sta Rica v. Nicaragua case”).2
On 18 N0vember 2010, C0sta Rica als0 filed a Request f0r the indicati0n 0f pr0visi0nal
measures aimed at pr0tecting its “right t0 s0vereignty, t0 territ0rial integrity and t0 n0n-
interference with its rights 0ver the San Juan River, its lands, its envir0nmentally pr0tected areas,
as well as the integrity and fl0w 0f the C0l0rad0 River”. By its Request, C0sta Rica s0ught in
particular t0 0btain the withdrawal 0f all Nicaraguan tr00ps fr0m the territ0ry in dispute, the
immediate cessati0n 0f the c0nstructi0n 0f the canal and the suspensi0n 0f the dredging 0f the
C0l0rad0 River. By an 0rder indicating pr0visi0nal measures dated 8 March 2011, the C0urt
asked the Parties t0 refrain fr0m sending t0, 0r maintaining in, the disputed territ 0ry any
pers0nnel, whether civilian, p0lice 0r security. H0wever, it did auth0rize C0sta Rica t0 dispatch
t0 the disputed territ0ry, subject t0 certain c0nditi0ns, civilian pers0nnel charged with the
pr0tecti0n 0f the envir0nment. Finally, it asked the Parties t 0 refrain fr0m aggravating 0r
extending the dispute.
On 22 December 20113, Nicaragua instituted pr0ceedings against C0sta Rica “f0r vi0lati0ns 0f
Nicaraguan s0vereignty and maj0r envir0nmental damages t0 its territ0ry”. In its Applicati 0n,
Nicaragua c0ntended that C0sta Rica was carrying 0ut maj0r c0nstructi0n w0rks al0ng m0st 0f
the b0rder area between the tw0 c0untries with grave envir0nmental c0nsequences. This case
was entered in the General List 0f the C0urt under the title C0nstructi0n 0f a R0ad in C0sta Rica
al0ng the San Juan River (Nicaragua v. C0sta Rica) (hereinafter the “Nicaragua v. C0sta
Rica case”).
On 6 August 2012, Nicaragua filed its C0unter-Mem0rial in the C0sta Rica v. Nicaragua case, in
which it submitted f0ur c0unter-claims.
In a letter dated 19 December 2012, submitted 0n the filing 0f Nicaragua’s Mem0rial in
the Nicaragua v. C0sta Rica case, Nicaragua requested the C0urt t0 j0in the pr0ceedings in
the C0sta Rica v. Nicaragua and the Nicaragua v. C0sta Rica cases.
By tw0 0rders dated 17 April 2013, the C0urt, taking acc0unt 0f the circumstances and in
c0nf0rmity with the principle 0f the s0und administrati0n 0f justice and with the need f0r judicial
ec0n0my, decided t0 j0in the pr0ceedings in the tw0 cases.

2
Statute 0f the Internati0nal C0urt 0f Justice (San Francisc0, 26 June 1945; in f0rce 24 0ct0ber 1945) (‘ICJ
Statute’).
3
Certain Activities Carried 0ut by Nicaragua in the B0rder Area (C0sta Rica v. Nicaragua), Pr0visi0nal Measures,
0rder 0f 8 March 2011, I.C.J. Rep0rts 2011.
By an 0rder dated 18 April 2013, the C0urt ruled that the subject-matter 0f the first
c0unter-claim presented by Nicaragua in the C0sta Rica v. Nicaragua case (a claim relating t0
the damage that might result fr0m the c0nstructi0n 0f the af0rementi0ned r0ad by C0sta Rica)
was identical in substance t0 its principal claim in the Nicaragua v. C0sta Rica case and that, as
a result 0f the j0inder 0f the pr0ceedings, there was n0 need f0r it t0 adjudicate 0n the
admissibility 0f that c0unter-claim as such. The C0urt f0und the sec0nd and third c0unter-claims
inadmissible, since there was n0 direct c0nnecti0n between th0se claims, which related t0 the
questi0n 0f s0vereignty 0ver the Bay 0f San Juan del N0rte and Nicaragua’s right t0 navigati0n
0n the C0l0rad0 River, respectively, and the principal claims 0f C0sta Rica. Finally, the C0urt
f0und that there was n0 need f0r it t0 entertain the f0urth c0unter-claim, relating t0 the
implementati0n 0f the pr0visi0nal measures already indicated by the C 0urt, since the Parties
were free t0 take up that questi0n in the further c0urse 0f the pr0ceedings.
On 23 May 2013, C0sta Rica presented the C0urt with a request f0r the urgent m0dificati0n 0f its
0rder 0f 8 March 2011. In its 0rder 0f 16 July 2013, the C0urt c0nsidered that the change in the
situati0n that had 0ccurred did n0t justify a m0dificati0n 0f its earlier 0rder. Furtherm0re, it
reaffirmed the measures indicated in its 0rder 0f 8 March 2011, in particular the requirement that
the Parties “shall refrain fr0m any acti0n which might aggravate 0r extend the dispute bef0re the
C0urt 0r make it m0re difficult t0 res0lve”.
On 24 September 2013, C0sta Rica filed a Request f 0r the indicati0n 0f new pr0visi0nal
measures in the C0sta Rica v. Nicaragua case. This Request f0ll0wed the c0nstructi0n by
Nicaragua 0f tw0 new channels (cañ0s) in the n0rthern part 0f the disputed territ0ry, the larger 0f
the tw0 being that t0 the east (“the eastern cañ0”). In its 0rder 0f 22 N0vember 2013, the C0urt
decided n0t 0nly t0 reaffirm the pr0visi0nal measures indicated in its 0rder 0f 8 March 2011, but
als0 t0 indicate new measures. The C0urt thus directed that Nicaragua must refrain fr0m any
dredging 0r 0ther activities in the disputed territ 0ry, and, in particular, refrain fr0m w0rk 0f any
kind 0n the tw0 new cañ0s, and must als0 fill the trench 0n the beach n0rth 0f the eastern cañ0.
The C0urt further directed that, except as needed f0r implementing this 0bligati0n, Nicaragua
must cause the rem0val fr0m the disputed territ0ry 0f all pers0nnel, whether civilian, p0lice 0r
security, and prevent any such pers0nnel fr0m entering the disputed territ0ry; it must likewise
cause the rem0val fr0m and prevent the entrance int0 the disputed territ0ry 0f any private
pers0ns under its jurisdicti0n 0r c0ntr0l. The C0urt further stated that, subject t 0 certain
c0nditi0ns, C0sta Rica might take appr0priate measures related t0 the tw0 new canos.”
“F0r its part, 0n 11 0ct0ber 20134, Nicaragua filed a Request f0r the indicati0n 0f pr0visi0nal
measures in the Nicaragua v. C0sta Rica case, stating that it was seeking t 0 pr0tect certain rights
which were being prejudiced by the r 0ad c0nstructi0n w0rks carried 0ut by C0sta Rica, in
particular the transb0undary m0vement 0f sediments and 0ther resultant debris. After h0lding
hearings 0n that Request at the beginning 0f N0vember 2013, the C0urt decided, in an 0rder
dated 13 December 2013, that the circumstances, as they n0w presented themselves t0 the C0urt,
were n0t such as t0 require the exercise 0f its p0wer t0 indicate pr0visi0nal measures.
4
Certain Activities Carried 0ut by Nicaragua in the B0rder Area (C0sta Rica v. Nicaragua) and C0nstructi0n 0f a
R0ad in C0sta Rica al0ng the San Juan River (Nicaragua v. C0sta Rica) Pr0visi0nal Measures, 0rder 0f 22
N0vember 2013, I.C.J Rep0rts 2013.
Public hearings in the j0ined cases were held in April 2015, and the C0urt delivered its Judgment
0n the merits 0n 16 December 2015. Regarding the first case, the C 0urt f0und, inter alia, that
C0sta Rica had s0vereignty 0ver the disputed territ0ry lying in the n0rthern part 0f Isla P0rtill0s.
It theref0re c0nsidered that the activities carried 0ut by Nicaragua in the disputed territ 0ry since
2010, including the excavati0n 0f three cañ0s and the establishment 0f a military presence in
parts 0f that territ0ry, were in breach 0f C0sta Rica’s territ0rial s0vereignty and Nicaragua’s
0bligati0ns under the C0urt’s 0rder 0f 8 March 2011 indicating pr0visi0nal measures. In its
Judgment, the C0urt ruled that Nicaragua had an 0bligati0n t0 c0mpensate C0sta Rica f0r the
material damages caused by its unlawful activities and that, failing an agreement 0n the matter
between the Parties within 12 m0nths, the C0urt w0uld settle this questi0n in a subsequent
pr0cedure.
In the same Judgment, regarding the sec0nd case, the C0urt f0und that the c0nstructi0n 0f the
r0ad by C0sta Rica carried a risk 0f significant transb0undary harm and that C0sta Rica theref0re
had an 0bligati0n under general internati0nal law t0 carry 0ut an envir0nmental impact
assessment. H0wever, since C0sta Rica had n0t c0mplied with that 0bligati0n, the C0urt f0und
that there was n0 need f0r it t0 determine whether C0sta Rica had a duty t0 n0tify and c0nsult
with Nicaragua. Turning t0 the alleged breaches 0f substantive 0bligati0ns, beginning with the
0bligati0n t0 exercise due diligence t0 av0id causing significant transb0undary harm, the C0urt
c0ncluded that Nicaragua had n0t pr0ved that the c0nstructi0n 0f the r0ad caused significant
transb0undary harm, and it theref0re dismissed Nicaragua’s claims 0n this p0int. Turning t0 the
reparati0n requested by Nicaragua, the C0urt c0ncluded that a declarati0n 0f wr0ngful c0nduct
in respect 0f C0sta Rica’s vi0lati0n 0f the 0bligati0n t0 c0nduct an envir0nmental impact
assessment was the appr0priate measure 0f satisfacti0n f0r Nicaragua.
By a letter dated 16 January 2017, C0sta Rica, referring t0 the decisi0n rendered in the first
case (C0sta Rica v. Nicaragua), requested the C0urt t0 settle the questi0n 0f the c0mpensati0n
due t0 C0sta Rica f0r the material damages caused by Nicaragua’s unlawful activities in the
b0rder area. F0ll0wing the c0nclusi0n 0f tw0 r0unds 0f written pleadings, the C0urt began its
deliberati0n and gave its ruling in a Judgment rendered 0n 2 February 2018.
In that Judgment, the C0urt t00k the view that damage t0 the envir0nment, in particular the
c0nsequent impairment 0r l0ss 0f the ability 0f the envir0nment t0 pr0vide g00ds and services,
and the c0st 0f the rest0rati0n 0f the damaged envir0nment, was c0mpensable under
internati0nal law. Bef0re assigning a m0netary value t0 the damage t0 the envir0nmental g00ds
and services caused by Nicaragua’s wr0ngful activities, the C0urt determined the existence and
extent 0f that damage, and whether there existed a direct and certain causal link between the
damage and Nicaragua’s activities. F0ll0wing its valuati0n 0f the damage caused t0
envir0nmental g00ds and services, the C0urt awarded C0sta Rica the sum 0f US$120,000 f0r the
impairment 0r l0ss 0f the envir0nmental g00ds and services 0f the affected area, and the sum 0f
US$2,708.39 f0r rest0rati0n measures in respect 0f the wetland. In additi0n t0 the c0mpensati0n
f0r envir0nmental damage, the C0urt awarded C0sta Rica t0tal c0mpensati0n in the am0unt 0f
US$236,032.16 f0r c0sts and expenses incurred as a direct c 0nsequence 0f Nicaragua’s unlawful
activities in the n0rthern part 0f Isla P0rtill0s, as well as US$20,150.04 in pre-judgment interest
0n th0se c0sts and expenses. The C0urt c0ncluded that the t0tal am0unt 0f c0mpensati0n t0 be
awarded t0 C0sta Rica was US$378,890.59, t0 be paid by Nicaragua by 2 April 2018. In a letter
dated 22 March 2018, Nicaragua inf0rmed the Registry 0f the C0urt that, 0n 8 March 2018, it
had transferred t0 C0sta Rica the t0tal am0unt 0f c0mpensati0n awarded t0 it.”

~ Special menti0n 0f 0ne Part 0f finding which is related t0 Envir0nmental Disaster:

COMPENSATION FOR ENVIRONMENTAL DAMAGE:
1. The c0mpensability 0f envir0nmental damage
The C0urt 0bserves that it has n0t previ0usly adjudicated a claim f0r c0mpensati0n f0r
envir0nmental damage. H0wever, it is c0nsistent with the principles 0f internati0nal law
g0verning the c0nsequences 0f internati0nally wr0ngful acts, including the principle 0f
full reparati0n, t0 h0ld that c0mpensati0n is due f0r damage caused t0 the envir0nment,
in and 0f itself, in additi0n t0 expenses incurred by an injured State as a c0nsequence 0f
such damage. “The C0urt is theref0re 0f the view that damage t0 the envir0nment, and
the c0nsequent impairment 0r l0ss 0f the ability 0f the envir0nment t0 pr0vide g00ds and
services, is c0mpensable under internati0nal law. Such c0mpensati0n may include
indemnificati0n f0r the impairment 0r l0ss 0f envir0nmental g00ds and services in the
peri0d pri0r t0 rec0very and payment f0r the rest0rati0n 0f the damaged envir0nment.
The C0urt adds that payment f0r rest0rati0n acc0unts f0r the fact that natural rec0very
may n0t always suffice t0 return an envir0nment t0 the state in which it was bef0re the
damage 0ccurred. In such instances, active rest0rati0n measures may be required in 0rder
t0 return the envir0nment t0 its pri0r c0nditi0n, in s0 far as that is p0ssible.

2. Meth0d0l0gy f0r the valuati0n 0f envir0nmental damage

The C0urt gives an 0verview 0f the meth0d0l0gy advanced by each Party f0r the
valuati0n 0f envir0nmental damage in the present case. The meth 0d0l0gy that C0sta Rica
c0nsiders m0st appr0priate, which it terms the “ec0system services appr0ach”, f0ll0ws
the rec0mmendati0ns 0f an expert rep0rt c0mmissi0ned fr0m Fundación Ne0trópica, a
C0sta Rican n0n-g0vernmental 0rganizati0n. C0sta Rica claims that the valuati0n 0f
envir0nmental damage pursuant t0 an ec0system services appr0ach is well rec0gnized
internati0nally, up-t0-date, and is als0 appr0priate f0r the wetland pr0tected under the
Ramsar C0nventi0n that Nicaragua has harmed. C0sta Rica explains that, acc0rding t0
the ec0system services appr0ach, the value 0f an envir0nment is c0mprised 0f g00ds and
services that may 0r may n0t be traded 0n the market. F0r its part, Nicaragua c0nsiders
that C0sta Rica is entitled t0 c0mpensati0n “t0 replace the envir0nmental services that
either have been 0r may be l0st pri0r t0 rec0very 0f the impacted area”, which it terms
 the “ec0system service replacement c0st” 0r “replacement c0sts”. Acc0rding t0
Nicaragua, the pr0per meth0d f0r calculating this value is by reference t 0 the price that
w0uld have t0 be paid t0 preserve an equivalent area until the services pr0vided by the
impacted area have rec0vered.

The C0urt ackn0wledges that the valuati0n meth0ds pr0p0sed by the Parties are
s0metimes used f0r envir0nmental damage valuati0n in the practice 0f nati0nal and
internati0nal b0dies, and are n0t theref0re dev0id 0f relevance t0 the task at hand.
H0wever, it p0ints 0ut that they are n0t the 0nly meth0ds used by such b0dies f0r that
purp0se, n0r is their use limited t0 valuati0n 0f damage since they may als0 be used t0
carry 0ut c0st/benefit analysis 0f envir0nmental pr0jects and pr0grammes f0r the purp0se
0f public p0licy setting. The C0urt states that it will n0t theref0re ch00se between them
0r use either 0f them exclusively f0r the purp0se 0f valuati0n 0f the damage caused t0 the
pr0tected wetland in C0sta Rica. Wherever certain elements 0f either meth0d 0ffer a
reas0nable basis f0r valuati0n, the C0urt will n0netheless take them int0 acc0unt.”
“This appr0ach is dictated by tw0 fact0rs:
first, internati0nal law d0es n0t prescribe any specific meth0d 0f valuati0n f0r the
purp0ses 0f c0mpensati0n f0r envir0nmental damage;
sec0ndly, it is necessary, in the view 0f the C0urt, t0 take int0 acc0unt the specific
circumstances and characteristics 0f each case.
In determining the c0mpensati0n due f0r envir0nmental damage, the C0urt explains that
it will assess the value t0 be assigned t0 the rest0rati0n 0f the damaged envir0nment as
well as t0 the impairment 0r l0ss 0f envir0nmental g00ds and services pri0r t0 rec0very.

3. Determinati0n 0f the extent 0f the damage caused t0 the envir0nment and 0f the
am0unt 0f c0mpensati0n due:
The C0urt turns t0 the determinati0n 0f the extent 0f the damage caused t0 the
envir0nment and 0f the am0unt 0f c0mpensati0n due. It n0tes that C0sta Rica claims
c0mpensati0n
(i) f0r the impairment 0r l0ss 0f envir0nmental g00ds and services as a result 0f
Nicaragua’s activities and
(ii) f0r rest0rati0n c0sts, c0mprising the c0st 0f replacement s0il in the tw0 cañ0s and
c0sts f0r the rest0rati0n 0f the wetland.
The C0urt 0bserves that, alth0ugh C0sta Rica identifies 22 categ0ries 0f g00ds and
services that c0uld have been impaired 0r l0st as a result 0f Nicaragua’s wr0ngful
acti0ns, it claims c0mpensati0n in respect 0f 0nly six 0f them: standing timber; 0ther raw
materials (fibre and energy); gas regulati 0n and air quality; natural hazards mitigati 0n;
s0il f0rmati0n and er0si0n c0ntr0l; and bi0diversity, in terms 0f habitat and nursery.
Bef0re assigning a m0netary value t0 the damage t0 the envir0nmental g00ds and
services caused by Nicaragua’s wr0ngful activities, the C0urt ann0unces that it will
determine the existence and extent 0f such damage, and whether there exists a direct and
certain causal link between such damage and Nicaragua’s activities. It will then establish
the c0mpensati0n due. The C0urt is 0f the view that C0sta Rica has n0t dem0nstrated that
the affected area, due t0 a change in its ec0l0gical character, has l0st its ability t0 mitigate
natural hazards 0r that such services have been impaired. As regards s 0il f0rmati0n and
er0si0n c0ntr0l, Nicaragua d0es n0t dispute that it rem0ved appr0ximately 9,500 cubic
metres 0f s0il fr0m the sites 0f the 2010 cañ0 and the 2013 eastern cañ0.
H0wever, the evidence bef0re the C0urt establishes that b0th cañ0s have subsequently
refilled with s0il and there has been substantial revegetati0n. Acc0rdingly, the C0urt
finds that C0sta Rica’s claim f0r the c0st 0f replacing all 0f the s0il rem0ved by
Nicaragua cann0t be accepted. There is s0me evidence that the s0il which was rem0ved
by Nicaragua was 0f a higher quality than that which has n 0w refilled the tw0 cañ0s but
C0sta Rica has n0t established that this difference has affected er0si0n c0ntr0l and the
evidence bef0re the C0urt regarding the quality 0f the tw0 types 0f s0il is n0t sufficient t0
enable the C0urt t0 determine any l0ss which C0sta Rica might have suffered. The C0urt
then examines the f0ur 0ther categ0ries 0f envir0nmental g00ds and services f0r which
C0sta Rica claims c0mpensati0n (namely, trees, 0ther raw materials, gas regulati 0n and
air quality services, and bi0diversity).
The C0urt finds that the evidence bef0re it indicates that, in excavating the 2010 cañ0 and
the 2013 eastern cañ0, Nicaragua rem0ved cl0se t0 300 trees and cleared 6.19 hectares 0f
vegetati0n. The C0urt c0nsiders that these activities have significantly affected the ability
0f the tw0 impacted sites t0 pr0vide the ab0ve-menti0ned envir0nmental g00ds and
services. It is theref0re the view 0f the C0urt that impairment 0r l0ss 0f these f0ur
categ0ries 0f envir0nmental g00ds and services has 0ccurred and is a direct c0nsequence
0f Nicaragua’s activities. With regard t 0 the valuati0n 0f the damage caused t0
envir0nmental g00ds and services, the C0urt states that it cann0t accept the valuati0ns
pr0p0sed by the Parties. In respect 0f the valuati0n pr0p0sed by C0sta Rica, the C0urt
has d0ubts regarding the reliability 0f certain aspects 0f its meth0d0l0gy. C0sta Rica
assumes, f0r instance, that a 50-year peri0d represents the time necessary f0r rec0very 0f
the ec0system t0 the state pri0r t0 the damage caused. H0wever, in the first instance,
there is n0 clear evidence bef0re the C0urt 0f the baseline c0nditi0n 0f the t0tality 0f the
envir0nmental g00ds and services that existed in the area c 0ncerned pri0r t0 Nicaragua’s
activities. Sec0ndly, the C0urt 0bserves that different c0mp0nents 0f the ec0system
require different peri0ds 0f rec0very. The C0urt c0nsiders that it is appr0priate t0
appr0ach the valuati0n 0f envir0nmental damage fr0m the perspective 0f the ec0system
as a wh0le, by ad0pting an 0verall assessment 0f the value 0f the impairment 0r l0ss 0f
envir0nmental g00ds and services pri0r t0 rec0very rather than attributing values t0
specific categ0ries 0f envir0nmental g00ds and services, and estimating rec0very peri0ds
f0r each 0f them.

OBSERVATION AND FINDING (0n this issue):

First, the C0urt 0bserves, in relati0n t0 the envir0nmental g00ds and services that have
been impaired 0r l0st, that the m0st significant damage t0 the area, fr0m which 0ther
 harms t0 the envir0nment arise, is the rem0val 0f trees by Nicaragua during the
excavati0n 0f the cañ0s. An 0verall valuati0n can acc0unt f0r the c0rrelati0n between the
rem0val 0f the trees and the harm caused t0 0ther envir0nmental g00ds and services.
Sec0ndly, an 0verall valuati0n appr0ach is dictated by the specific characteristics 0f the
area affected by the activities 0f Nicaragua, which is situated in the N0rtheast Caribbean
Wetland, a wetland pr0tected under the Ramsar C0nventi0n, where there are vari0us
envir0nmental g00ds and services that are cl0sely interlinked.
Thirdly, such an 0verall valuati0n will all0w the C0urt t0 take int0 acc0unt the capacity
0f the damaged area f0r natural regenerati0n. These c0nsiderati0ns als0 lead the C0urt t0
c0nclude, with regard t0 the length 0f the peri0d 0f rec0very, that a single rec0very
peri0d cann0t be established f0r all 0f the affected envir0nmental g00ds and services. In
its 0verall valuati0n, the C0urt takes int0 acc0unt the ab0ve-menti0ned categ0ries 0f
envir0nmental g00ds and services the impairment 0r l0ss 0f which has been established.
The C0urt recalls that, in additi0n t0 the tw0 valuati0ns, respectively submitted by C0sta
Rica and Nicaragua, Nicaragua als0 pr0vides an alternative valuati0n 0f damage,
calculated 0n the basis 0f the f0ur categ0ries 0f envir0nmental g00ds and services. This
valuati0n ad0pts C0sta Rica’s ec0systems services appr0ach but makes significant
adjustments t0 it. Nicaragua refers t0 this valuati0n as a “c0rrected analysis”. The C0urt
c0nsiders, h0wever, that Nicaragua’s “c0rrected analysis” underestimates the value t0 be
assigned t0 certain categ0ries 0f g00ds and services pri0r t0 rec0very. The C0urt further
recalls that the absence 0f certainty as t0 the extent 0f damage d0es n0t necessarily
preclude it fr0m awarding an am0unt that it c0nsiders appr0ximately t0 reflect the value
0f the impairment 0r l0ss 0f envir0nmental g00ds and services. In this case, the C 0urt,
while retaining s0me 0f the elements 0f the “c0rrected analysis”, c0nsiders it reas0nable
that, f0r the purp0ses 0f its 0verall valuati0n, an adjustment be made t0 the t0tal am0unt
in the “c0rrected analysis” t0 acc0unt f0r its sh0rtc0mings. The C0urt theref0re awards t0
C0sta Rica the sum 0f US$120,000 f0r the impairment 0r l0ss 0f the envir0nmental
g00ds and services 0f the impacted area in the peri0d pri0r t0 rec0very. In relati0n t0
rest0rati0n, the C0urt rejects C0sta Rica’s claim 0f US$54,925.69 f0r replacement s0il
f0r the reas0ns given ab0ve.

The C0urt, h0wever, c0nsiders that the payment 0f c0mpensati0n f0r rest0rati0n
measures in respect 0f the wetland is justified in view 0f the damage caused by
Nicaragua’s activities. C0sta Rica claims” c0mpensati0n in the sum 0f US$2,708.39 f0r
this purp0se. The C0urt uph0lds this claim.5

CONCLUSION:
In the C0sta Rica v. Nicaragua and Nicaragua v. C 0sta Rica cases, “the ICJ examined
pr0cedural 0bligati0ns under internati0nal envir0nmental law in s0me detail. It is

5
C0sta Rica v. Nicaragua/Nicaragua v. C0sta Rica, n. 4 ab0ve, Separate 0pini0n 0f Judge ad h0c Dugard, at
paragraph 9; C0sta Rica v. Nicaragua/Nicaragua v. C0sta Rica, n. 4 ab0ve, Separate 0pini0n 0f Judge D0n0ghue, at
paragraph 13.
n0tew0rthy that the C0urt highlighted the interlinkage between three 0bligati0ns, namely,
th0se 0f due diligence, t0 c0nduct an envir0nmental impact assessment, and t0 n0tify and
c0nsult. H0wever, further c0nsiderati0n sh0uld be given t0 the questi0n 0f whether the
0bligati0n t0 n0tify is triggered 0nly when an envir0nmental impact assessment finds a
risk 0f significant transb0undary envir0nmental harm. The C0sta Rica v. Nicaragua and
Nicaragua v. C0sta Rica cases als0 highlighted the imp0rtance 0f scientific evidence in
the settlement 0f disputes c0ncerning envir0nmental pr0tecti0n, including the pr0tecti0n
0f bi0l0gical diversity.
M0re 0ften than n0t, it is difficult f0r the C0urt as a judicial 0rgan t0 evaluate c0mpeting
scientific evidence. In future, the use 0f scientific experts under Article 50 0f the ICJ
Statues is w0rth c0nsidering in the settlement 0f disputes inv0lving scientific and
technical aspects.”