Compensating transboundary environmental harm | The Daily Star
12:00 AM, May 14, 2019 / LAST MODIFIED: 12:38 AM, May 14, 2019

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Compensating transboundary environmental harm

On February 2, 2018, the International Court of Justice (ICJ) awarded compensatory damages to Costa Rica for internationally wrongful activities of Nicaragua. Nicaragua carried out certain dredging activities on the San Juan River and excavated several canals across Costa Rican territory from the River to Laguna los Portillos (or “Harbor Head Lagoon”) which caused harm to the rich biodiversity of the disputed area in Costa Rica.

One of the great significances of this dispute lies in the fact that this is the first time the ICJ ventured into the path of awarding compensation to the affected State in case of transboundary environmental damage. Furthermore, the ICJ discussed several methodologies for calculating compensation in this dispute and strived to determine the nature of claims that can be upheld for damages if they fulfill certain criteria.

Referring to the jurisprudence of reparation developed in Chorzow Factory case, the ICJ declared that “damage to the environment and consequent impairment or loss of the ability of environment to provide goods and services is compensable under international law”. Furthermore, the Court found compensation to be payable under two categories- ‘indemnification of the impairment or loss of environmental goods and services in the period prior to the recovery’ and ‘payment for restoration or recovery of the damaged environment’.

Although several issues regarding the calculation of damages for causing transboundary environmental harm is unsettled in this case, this judgment is a definite starting point. It can pave way for holding States accountable and can deter States from causing transboundary harm.

The ICJ declared compensation of US$ 120,000 for impairment or loss of environmental goods and services in the impacted area prior to recovery and US$2,708.39 for restoration costs and US$236,032.16 for associated monitoring costs and other expenses. This development is rather significant since it covers a broad range of environmental harm. This might warrant the attention of States involved in activities which may contribute to environmental degradation.

The writer is a student of law, University of Dhaka.


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