Separate opinion of Judge Cançado Trindade

SEPARATE OPINION OF JUDGE CANÇADO TRINDADE
Table of contents
I. Prolegomena. ........................................................................................................................... 1
II. The Principle Neminem Laedere and the Duty of Reparation for Damages. ........................... 2
III. The Indissoluble Whole of Breach and Prompt Reparation. .................................................... 3
IV. Duty of Reparation: A Fundamental, rather than “Secondary”, Obligation. ........................... 4
V. Reparations in the Thinking of the “Founding Fathers” of the Law of Nations: Their
Perennial Legacy. ..................................................................................................................... 5
VI. Reparation in All Its Forms (Compensation and Others). ........................................................ 6
VII. Reparation for Environmental Damages, the Intertemporal Dimension, and
Obligations of Doing in Regimes of Protection. ...................................................................... 8
VIII. The Centrality of Restitutio and the Insufficiencies of Compensation. ................................... 9
IX. The Incidence of Considerations of Equity and Jurisprudential Cross-Fertilization. ............ 10
X. Environmental Damages and the Necessity and Importance of Restoration. ........................ 11
XI. Restoration beyond Simply Compensation: The Need for Non-Pecuniary Reparations. ...... 12
XII. Final Considerations. ............................................................................................................. 14
XIII. Epilogue: A Recapitulation. ................................................................................................... 17
I. Prolegomena.
1. I have voted in favour of the adoption by the International Court of Justice (ICJ) of the
present Judgment (of 02 February 2018) in the case of Compensation Owed by the Republic of
Nicaragua to the Republic of Costa Rica (in relation to Certain Activities Carried Out by
Nicaragua in the Border Area), whereby the ICJ has taken the proper course in respect of the
determination of the compensation due. Having supported the decision the Court has just taken in
the cas d’espèce in this respect, yet there are points related to the matter dealt with, which are not
addressed in the present Judgment.
2. The Court’s reasoning is, to my mind, far too strict, this being the first case ever in which
it is called upon to pronounce on reparations for environmental damages. Its outlook should have
been much wider, encompassing also the consideration of restoration measures, and distinct forms
of reparation, complementary to compensation. Yet, in all its reasoning, the Court focused
essentially on compensation, as if it would suffice to adjudicate the cas d’espèce on reparations for
environmental damages. This is not how I behold the whole matter at issue.
3. There are indeed yet other points to consider, to which I attribute special relevance, that
have been overlooked in the present Judgment. The Court should have taken another step forward
in the present domain of reparations, as it did in its previous Judgment on reparations
(of 19.06.2012) in the case of A.S. Diallo (Guinea versus D.R. Congo). In both cases, reparations
are in my view to be considered within the framework of international regimes of protection: in the
A.S. Diallo case, human rights protection, and in the present case, environmental protection.
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10. In effect, the basic principle of neminem laedere, as it came to be known, found
expression much further back in time, in even more ancient civilizations2. After all, the contents of
Justinian’s Digest had been excerpted from far more ancient works. The conception of the duty of
reparation, with such profound historical roots, was to mark presence, not surprisingly, ten
centuries later, in the origins themselves of the law of nations (XVIth century onwards - cf.
section V, infra).
11. The natural law general principle of neminem laedere inspired the conceptualization of
the duty of reparation for damages (resulting from breaches of international law), so as to safeguard
the integrity of the legal order itself, remedying the wrong done. The duty of reparation (in all its
forms) was upheld, from the start, as the indispensable complement of the breach of international
law: the two complement each other, forming an indissoluble whole.
III. The Indissoluble Whole of Breach and Prompt Reparation.
12. Reparation comes indeed together with the breach, so as to cease all the effects of this
latter, and to secure respect for the legal order. The original breach is ineluctably linked to prompt
compliance with the duty of reparation. I have already sustained this position on earlier occasions
within this Court (as in, e.g., my Dissenting Opinion in the case of Jurisdictional Immunities of the
State, Germany versus Italy, Greece intervening, Judgment of 03.02.2012).
13. Later on, in my Declaration appended to the Court’s Order of 01.07.2015 in the case of
Armed Activities on the Territory of the Congo (D.R. Congo versus Uganda), I reiterated that
breach and prompt reparation, forming, as they do, an indissoluble whole, are not separated in time.
Any breach is to be promptly followed by the corresponding reparation, so as to secure the integrity
of the international legal order itself. Reparation cannot be delayed or postponed.
14. As cases concerning environmental damage show, the indissoluble whole formed by
breach and reparation has a temporal dimension, which cannot be overlooked. In my perception, it
calls upon looking at the past, present and future altogether. The search for restitutio in integrum,
e.g., calls for looking at the present and the past, as much as it calls for looking at the present and
the future. As to the past and the present, if the breach has not been complemented by the
corresponding reparation, there is then a continuing situation in violation of international law.
15. As to the present and the future, the reparation is intended to cease all the effects of the
environmental damage, cumulatively in time. It may occur that the damage is irreparable, rendering
restitutio in integrum impossible, and then compensation applies. In any case, responsibility for
environmental damage and reparation cannot, in my view, make abstraction of the intertemporal
dimension (cf. section VII, infra). After all, environmental damage has a longstanding dimension.
2 Such as, e.g., the Mesopotamian ones, as illustrated by relevant provisions in the Code of Hammurabi (circa
1750 b.C.) and in the Assyrian Code (circa 1350 b.C.). On the presence of the attention to the duty of reparation
(including restitution and satisfaction), for example, in the Code of Hammurabi, cf.: Código de Hammurabi (transl.
F. Lara Peinado), 4th. ed. (reprint), Madrid, Tecnos, 2012, pp. 18-19, 21, 23, 25 and 34-35; paras. 79-87, 100, 125 and
178-179.
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V. Reparations in the Thinking of the “Founding Fathers” of the Law of Nations: Their
Perennial Legacy.
20. In the law of nations, reparation is necessary to the preservation of the international legal
order: reparation in effect responds to a true international need, in conformity with the recta ratio3.
This latter marked presence in the jusnaturalist thinking of the “founding fathers” of international
law. In effect, I have recalled the legacy of their thinking, - comprising the duty of reparation, - in
my Separate Opinions, respectively in two ICJ decisions in cases pertaining to reparations, lodged
with the Court by two African States, Guinea and D.R. Congo.
21. Thus, in my Separate Opinion (paras. 14-21 and 86-87) in the A.S. Diallo case (Guinea
versus D.R. Congo, reparations, Judgment of 19.06.2012), I deemed it fit to recall that the rationale
of reparation was already dwelt upon in the writings of the “founding fathers” of the law of nations,
namely: the insights of F. de Vitoria, B. de Las Casas and A. Gentili in the XVIth century; followed
subsequently by those of F. Suárez, H. Grotius, and S. Pufendorf in the XVIIth century; and by
those of C. van Bynkershoek and C. Wolff in the XVIIIth century.
22. More recently, in my Separate Opinion (paras. 11-16) in the case of Armed Activities on
the Territory of the Congo (D.R. Congo versus Uganda, Order of 06.12.2016), I have again
addressed the legacy of the “founding fathers” of international law as to reparations for damages. In
effect, very early in the XVIth century, F. Vitoria examined the duty of restitutio in conformity with
the recta ratio (his celebrated Second Relectio - De Indis, 1538-1539, as well as his lesser known
writing De Restitutione, 1534-1535).
23. F. Vitoria’s lesson De Restitutione ensued from his comments on the masterpiece of
Thomas Acquinas in the XIIIth century (the Summa Theologiae, - written between 1265 and
1274, - secunda secundae). It should not pass unnoticed that the duty of reparation found
expression first in theology, and then moved into law (as shown in the lessons of the “founding
fathers” of the law of nations/droit des gens); and it was not the only example to this effect.
24. Still along the XVIth century, other pioneering authors studied the matter: for example,
the duty of restitutio and reparation for damages was asserted by B. de Las Casas (Brevísima
Relación de la Destrucción de las Indias, 1552, and De Regia Potestate, 1571), as well as by J. Roa
Dávila (De Regnorum Iustitia, 1591). And F. Pérez focused on the duty of compensation, in the
light of natural law thinking (Apontamentos Prévios ao Tema da Restituição, 1588).
25. Already in the XVIth century, both F. Vitoria and B. de Las Casas addressed restitutio
together with satisfaction (as another form of reparation). They were aware that another form of
reparation needed to be considered, as there were damages which were irreparable, thus rendering
restitutio impossible. Yet, the ideal, for F. Vitoria, was restitution, which should always be sought
3 On the recta ratio in the law of nations, cf. A.A. Cançado Trindade, International Law for
Humankind - Towards a New Jus Gentium, 2nd. rev. ed., Leiden/The Hague, Nijhoff/The Hague Academy of
International Law, 2013, pp. 11-14, 141 and 143-144; A.A. Cançado Trindade, A Humanização do Direito Internacional,
2nd. rev. ed., Belo Horizonte/Brazil, Edit. Del Rey, 2015, pp. 3-27, 101-111, 122 and 647-665.
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31. Compensation is - may I here reiterate - only one of the forms of reparation. There is no
reason to overlook other forms of reparation. In the circumstances of a given case, they may prove
to be the most appropriate one. Yet, in the present Judgment on Compensation Owed by Nicaragua
to Costa Rica, the ICJ only briefly interrelates satisfaction and compensation (para. 27), as well as
restitution and compensation (para. 31). It could or should have elaborated further on reparation in
all its forms.
32. On the basis of my own experience, I think that, depending on the circumstances of a
case, other forms of reparations may be even more appropriate and important than compensation.
Given forms of reparation can more clearly be approached within the framework of restorative
justice (cf. sections IX-X, infra), which has much advanced in the last decades. Reparations for
moral damages, e.g., call for forms of reparation other than the pecuniary one (compensation), with
the incidence of considerations of equity. In the case of reparation for environmental harm, one is
to resort to such considerations of equity (cf. sections VIII-IX, infra).
33. In my understanding, an appropriate consideration of the fundamental duty of reparation
cannot limit itself to only one of its forms, namely, that of compensation. One may be tempted to
argue that, as in the present case of Compensation Owed by Nicaragua to Costa Rica, as the
arguments advanced by the contending parties before the Court focused only on compensation, the
Court should limit itself to pronounce only on it. I am not at all convinced by such an outlook.
34. In fact, the arguments of both Costa Rica (in its Memorial) and of Nicaragua (in its
Counter-Memorial) focused only on compensation. But that, in my view, does not entail that the
ICJ, - which is not an international arbitral tribunal, - should focus exclusively on compensation. In
order to say what the Law is (juris dictio) as to the fundamental duty of reparation, the Court
cannot restrict itself only to compensation, even if the contending parties address only this latter.
The Court can surely go beyond the contentions of the parties, so as to provide the solid
foundations of its own decision, and persuade them that justice has been done.
35. It is true that restitutio is the modality of reparation par excellence; furthermore, it is
related not only to compensation, and this latter cannot make abstraction of, or prescind from, the
other forms of reparation. It is reasonable that restitutio should be sought first, as it amounts to a
return to the pre-existing situation (statu quo ante), before the occurrence of the breach. And
nothing hinders restitutio being accompanied by one or more forms of reparation.
36. Moreover, in my understanding, - contrary to conventional wisdom, - there is no
hierarchy between them: they intermingle among each other, and the form of reparation to be
ordered by the international tribunal concerned will be the one most suitable to remedy the
situation at issue, and this will depend on the circumstances of each case. As they do not exclude
each other, distinct but complementary forms of reparation may be ordered by the international
tribunal concomitantly.
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Hence the undue emphasis on pecuniary reparations, feeding that long-lasting
doctrinal discussion. This has led, in domestic legal systems, to reductionisms, which
paved the way to distorted ‘industries of reparations’, emptied of true human values.
(…) There appears to be no sense at all in attempting to resuscitate the doctrinal
differences as to the pretium doloris (…)
(…) Unlike moral damages, in my view the spiritual damage is not susceptible
of ‘quantifications’, and can only be repaired, and redress be secured, by means of
obligations of doing (obligaciones de hacer), in the form of satisfaction (…)”
(paras. 73-77).
40. On another occasion, in my Separate Opinion in the case Gutiérrez Soler versus
Colombia (merits, Judgment 12.09.2005), I pondered that restitutio in integrum is the modality of
reparation par excellence; I further warned that there are circumstances in which the simple
quantification of damages in pecuniary terms (for compensation) is insufficient, thus calling for the
preservation of other forms of reparation, such as satisfaction (paras. 5-6), in pursuance of
obligations of doing, bearing in mind the intertemporal dimension (para. 10).
41. Obligations of doing assume particular importance in the consideration of reparations
within the framework of regimes of protection, such as those of the protection of the environment
and the protection of the rights of the human person. Interrelated developments in those two
regimes of protection8 have much contributed to the evolution of contemporary Public International
Law as a whole, including in respect of reparations in particular. Obligations of doing are essential
to restoration.
VIII. The Centrality of Restitutio and the Insufficiencies of Compensation.
42. Even though the ICJ devotes almost the whole of the present Judgment to pecuniary
reparation (compensation), this latter does not meet the central issue or essence of the cas d’espèce,
namely: how to remedy an environmental damage, to cease the effects of the wrong done, and to
return to the situation that existed before the occurrence of the damage? Compensation is
insufficient to this effect.
43. The priority to be aimed at is restitution. Compensation is to be resorted to, in particular,
when the wrong done cannot be remedied, if restitutio in integrum cannot be achieved. And, then,
compensation can come together with other forms of reparation (including the non-pecuniary
ones); all depends on the circumstances of the case at issue, keeping in mind the necessity of
restoration. Restorative justice encompasses reparations in all their forms (cf. supra), and one is to
keep them all in mind.
8 For an assessment, cf. A.A. Cançado Trindade, “Human Rights and the Environment”, in Human Rights: New
Dimensions and Challenges (ed. J. Symonides), UNESCO/Dartmouth, Paris/Aldershot, 1998, pp. 117-153; [Various
Authors,] Derechos Humanos, Desarrollo Sustentable y Medio Ambiente / Human Rights, Sustainable Development and
the Environment / Direitos Humanos, Desenvolvimento Sustentável e Meio Ambiente (ed. A.A. Cançado Trindade), 2nd.
ed., San José C.R./Brasília, IIDH/BID, 1995, pp. 1-414.
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49. As to this latter, the ICJ clearly stated, in its Judgment on reparations (of 19.06.2012) in
the of A.S. Diallo (2012), e.g., that
“the award of post-judgment interest is consistent with the practice of other
international courts and tribunals (cf., for example, ITLOS, case of M/V ‘Saiga’ (n. 2)
(Saint Vincent and Grenadines versus Guinea, Judgment of 01.07.1999), para. 175;
IACtHR, case of Bámaca Velásquez versus Guatemala (reparations, Judgment of
22.02.2002), para. 103; ECtHR, Papamichalopoulos and Others versus Greece
([reparations,] Judgment of 31.10.1995), para. 39; ECtHR, Lordos and
Others versus Turkey (just satisfaction, Judgment of 10.01.2012), para. 76
and dispositif, para. 1 (b)) (…)” (para. 56).
50. In the present Judgment on Compensation Owed by Nicaragua to Costa Rica, the ICJ
seems obsessed with compensation only, losing sight of this latter’s close relationship with other
forms of reparation. Its view of reparations is largely and unduly focused on, or limited to,
compensation, pecuniary reparation only. This latter is, however, insufficient in case of breaches
with aggravating circumstances; in my understanding, when addressing environmental damages,
we should widen our horizon for the purpose of determining reparations.
51. May it here be recalled that, for its part, the IACtHR, in its Judgment on reparations (of
22.02.2002) in the case of Bámaca Velásquez versus Guatemala, after pointing out that even the
determination of pecuniary reparation is done “in terms of equity”, moved on to other forms of
non-pecuniary reparations in terms of some obligations of doing (paras. 56, 60, 73, 78 and 81-85).
Significantly, in the dispositif of its ground-breaking Judgment in the case of Bámaca Velásquez,
the IACtHR ordered, first, four non-pecuniary reparations in the form of obligations of doing
(resolutory points 1-4), and only afterwards pecuniary (monetary) reparations (resolutory
points 5-7).
52. Considerations of equity cannot be minimized (as positivists in vain try to do), as they
assist the international tribunal concerned to adjust norms and rules to the circumstances of the
concrete cases, and to adjudicate matters ex aequo et bono14. International tribunals, especially
those operating within the framework of international regimes of protection, do not hesitate to
make recourse to considerations of equity15. It so happens that the ICJ itself may be called upon to
decide on matters pertaining to such regimes of protection, as the present case and the previous
case of A.S. Diallo show, in respect of the duty of reparation.
X. Environmental Damages and the Necessity and Importance of Restoration.
53. Compensation, in sum, is not self-sufficient; it is interrelated with other forms of
reparation, and to restoration at large (cf. also section XI, infra). The amounts of compensation
awarded by the ICJ in the present Judgment on Compensation Owed by Nicaragua to Costa Rica
(paras. 86-87, 106, 131 and 146), are directly related, to a greater or lesser extent, to restoration. In
face of environmental damage, this is a point which cannot pass unnoticed; it is to be singled out, in
respect of each of the amounts of compensation ordered by the Court. Only by means of restorative
14 A.A. Cançado Trindade, Princípios do Direito Internacional Contemporâneo, 2nd. rev. ed., Brasília, FUNAG,
2017, pp. 96-99.
15 Cf., e.g., IACtHR, case of Cantoral Benavides versus Peru (reparations, Judgment of 03.12.2001), paras. 80
and 87; the IACtHR, once again, in the dispositif ordered pecuniary as well as non-pecuniary reparations in the form of
obligations of doing (resolutory points 1-3, and 4-9, respectively).
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60. Furthermore, in the light of the 1992 Rio de Janeiro Declaration on Environment and
Development, human beings and the environment come together, one cannot make abstraction of
one or the other; after all, human life and health are in harmony with the natural environment
(Principle 1)18 (cf. infra). After all, environmental harms concern populations, and the protections
of human beings and their environment are interrelated.
61. In the present Judgment on Compensation Owed by Nicaragua to Costa Rica, the ICJ
refers in passim to restoration (paras. 42-43, 53, 72 and 87). When it does so, it intermingles
restoration with indemnification for impairment or loss of environmental goods and services19; and
it links restoration to payment for environmental damage20. Only once the Court refers to
“restoration measures” themselves21, but without further elaborating on them.
62. In any case, in the cas d’espèce far greater attention is devoted by the ICJ, along the
present Judgment, to indemnification for impairment or loss of environmental goods and services,
in connection with compensation. The Court’s view of “restoration” is thus too strict; it should in
my view be much larger. Restoration of the damaged environment certainly deserves greater
attention, well beyond monetary compensation. Restorative justice beholds reparations in all forms,
among which rehabilitation and satisfaction.
63. On successive occasions in this Court I have stressed the imperative of the realization of
justice. In my Separate Opinion in the case of the Obligation to Prosecute or Extradite (Belgium
versus Senegal, merits, Judgment of 20.07.2012), for example, I deemed it fit to ponder that the
realization of justice is essential to the rehabilitation of the victimized (paras. 118, 171-172 and
181) and to the guarantee of non-repetition of the breaches (para. 120). And I added that there are
traces of restorative justice in the presence of the attention, from ancient to modern legal and
cultural traditions, to the duty of reparation, in all its forms (not only compensation).
64. The roots of restorative justice are ancient, and I do not consider it as necessarily linked
to reconciliation (a trend which only arose in the last three decades, in a given factual context)
(paras. 172 and 180). The pioneering determination, by the ICJ, in the aforementioned Judgment of
2012 in the case of the Obligation to Prosecute or Extradite, of the application of the principle of
universal jurisdiction, in my understanding has a bearing on restorative justice (the realization of
justice itself).
18 For an early study of this necessary anthropocentric outlook, cf. A.A. Cançado Trindade, Direitos Humanos e
Meio-Ambiente: Paralelo dos Sistemas de Proteção Internacional, Porto Alegre/Brazil, S.A. Fabris Ed., 1993, pp. 1-351;
cf., subsequently, A.A. Cançado Trindade, “Правата на човека и околната среда” [“Human Rights and the
Environment”], in Правата на човека: нови измерения и предизвикателства [Human Rights: New Dimensions and
Challenges], Bourgas/Bulgaria, Bourgas Free University, 2000, pp. 126-161 (Bulgarian edition); and cf., more recently,
e.g., A.A. Cançado Trindade, “A Proteção de Grupos Vulneráveis na Confluência do Direito Internacional dos Direitos
Humanos e do Direito Ambiental International”, in Evaluación Medioambiental, Participación y Protección del Medio
Ambiente (ed. G. Aguilar Cavallo), Santiago de Chile, Librotecnia, 2013, pp. 267-277.
19 In para. 53, the Court refers, in an appropriate sequence, to “restoration of the damaged environment”, and then
to indemnification for “impairment or loss of environmental goods and services”; yet in para. 42 it refers, in reverse and
improper sequence, to “indemnification for the impairment or loss of environmental goods and services”, and then to
“payment for the restoration of the damaged environment”.
20 Para. 87.
21 Para. 43.
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71. In other circumstances also, when faced with a large collectivity of victims, the ICJ
cannot consider compensation only. Compensation (for environmental damage, and for costs and
expenses consequently incurred) is just one aspect [or element] of the matter. After all,
environmental harm affects also the populations concerned (the human collectivities which States
represent)22, and full reparation cannot lose sight of that.
72. Environmental harm further affects the right of living. Human life and surrounding
nature are sources of pessimism and optimism, in face of the mystery of existence and the
possibility of destruction. This is expressed in the poems of the thoughtful Central American writer
(born in Nicaragua), Ruben Darío (1867-1916). In 1905, beholding the trees, in addressing fatality
he pondered with pessimism:
“Dichoso el árbol que es apenas sensitivo,
y más la piedra dura, porque ésta ya no siente,
pues no hay dolor más grande que el dolor de ser vivo,
ni mayor pesadumbre que la vida consciente”23.
73. Yet, hope never vanishes; Ruben Darío’s poems disclose a blend of melancholy and joy.
Again beholding the trees in a beautiful environment, two years later he further expressed, this time
with optimism:
“Oh pinos, oh hermanos en tierra y ambiente,
yo os amo! Sois dulces, sois buenos, sois graves.
Diríase un árbol que piensa y que siente,
mimado de auroras, poetas y aves”24.
74. In sum, the right of living brings to the fore the necessity and the importance of
restoration (cf. supra), - by means of reparation in all its forms (as already pointed out - cf. supra),
starting with the consideration of restitutio. For the examination of this latter, - may I
reiterate, - considerations of equity are much needed. In relation to the factual context of the cas
d’espèce, the ICJ - as I have already indicated (para. 61, supra) - refers briefly to restoration in the
present Judgment, but without extracting all consequences therefrom.
22 Cf., in this respect, e.g., Julio Barbosa (special rapporteur), U.N. International Law Commission: Eleventh
Report on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law
(ILC 47th session,1995), in Yearbook of the International Law Commission (1995)-II, p. 56, para. 20.
23 Ruben Darío, “Lo Fatal” [1905], in: Ruben Darío, Poesías Completas, 11th. ed., Madrid, Aguilar, 1968, p. 688;
e in: Ruben Darío, Poesía - Libros Poéticos Completos, 1st. ed., Mexico/Buenos Aires, Fondo de Cultura Económica,
1952, p. 305:
“Happy is the tree, which is scarcely sensitive,
and still happier is the hard stone, as it feels nothing,
there is no greater pain as that of being alive,
nor greater burden than that of conscious life”. [My own translation].
24 Ruben Darío, “La Canción de los Pinos” [1907], in: Ruben Darío, Poesías Completas, op. cit. supra n. (17),
p. 735; e in: Ruben Darío, Poesía - Libros Poéticos Completos, op. cit. supra n. (17), p. 335:
“Oh pine trees, oh brothers on land and in the environment,
I love you all! You are sweet, are good, are somber.
One would say you are a tree which thinks and feels,
pampered by sunrises, poets and birds”. [My own translation].
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80. The other monetary sum ordered in the present Judgment28 is granted as compensation
for the restoration (remedial measure) already undertaken, i.e., the construction of the dyke (and
monitoring overflights) enabling natural recovery in the area affected by the environmental
damages. In sum, reparation is to be kept in mind in all its forms (compensation and others), so as
to achieve restoration, with the remediation of the environmental harms.
81. Monetary compensation clearly has its limitations. It needs to be coupled with restoration
measures, so as to minimize the damages, - even if restitutio is not wholly attainable. Restoring the
harmed environment can repair the damages as much as possible. Restoration, furthermore, opens
ways for rehabilitation, and points towards the guarantee of non-repetition of the harmful
occurrences. Reparation is to be contemplated and pursued in all its forms.
82. Last but not least, may I conclude in drawing attention to the fact that, unfortunately,
lessons from the past have simply not been learned yet. Since the birth of the law of nations (droit
des gens) in the XVIth century (supra) to date, the duty of reparation has been studied (cf.
section V, supra). Yet, in contemporary international law, in this second decade of the
XXIst century, the application of that duty seems to be still in its infancy. Monetary or pecuniary
quantification of environmental damage per se does not provide full reparation, in the wider
framework of restoration. There remains nowadays a long way to go, in the endeavours towards the
progressive development of international law in the domain of reparations.
XIII. Epilogue: A Recapitulation.
83. From all the preceding considerations, it is crystal clear that my own reasoning goes well
beyond that of the Court in the present Judgment on Compensation Owed by Nicaragua to
Costa Rica. This being so, I deem it fit, at this stage, for the sake of clarity, to recapitulate all the
points I have addressed herein, in my present Separate Opinion, keeping in mind that this is the
first case in which the ICJ has been called upon to pronounce on reparations for environmental
damages.
84. Primus: According to a well-established principle of international law, reparation must
cease all consequences of the unlawful act and re-establish the situation which existed prior to the
occurrence of the breach. Secundus: Recourse is to be made, first, to restitutio in integrum, and,
when restitution is not possible, one then turns to compensation. Tertius: The conception of the
duty of reparation for damages has deep-rooted historical origins, going back to antiquity and
Roman law; it was inspired by the natural law general principle of neminem laedere.
85. Quartus: The breach causing harm promptly generates the duty of reparation; breach and
prompt reparation form an indissoluble whole. Quintus: Responsibility for environmental damage
and reparation cannot make abstraction of the temporal dimension; after all, responsibility for
environmental damage has an inescapable longstanding dimension. Sextus: The duty of prompt
reparation is a fundamental, rather than “secondary”, obligation: it is an imperative of justice.
28 Cf. paras. 142-143 and 145-146, and dispositif, resolutory point 2.
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92. Vicesimus tertius: Environmental damages cannot be precisely assessed and quantified
only in financial or pecuniary terms; full reparation is not attainable by compensation only.
Vicesimus quartus: Attention is to be kept on the importance of restoration measures, beyond
monetary compensation (e.g., planting trees to restore biodiversity), so as to achieve the
remediation of the environmental harms. Vicesimus quintus: Restoration of the harmed
environment can repair the damages as much as possible. Restoration measures can, with the
passing of time, cease the consequences of the environmental damages.
93. Vicesimus sextus: The duty of reparation has been studied since the birth of the law of
nations (supra), but lessons from the past have simply not been learned yet. At present, the
application of that duty in contemporary international law seems to be still in its infancy. Vicesimus
septimus: Monetary compensation per se does not provide full reparation. There thus remains a
long way to go, so as to ensure, within the wider framework of restoration, the progressive
development of international law in the domain of reparations.
(Signed) Antônio Augusto CANÇADO TRINDADE.
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