ICJ determines first ever compensation claim for environmental harm

On 2 February 2018, the International Court of Justice (the “ICJ” or the “Court”) delivered judgment in the case concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), determining the amount of compensation due to Costa Rica for environmental harm caused by Nicaragua’s activities in the northern part of Isla Portillos. This judgment, along with the related judgment delivered the same day in the joined cases concerning Maritime Delimitation in the Caribbean Sea and the Pacific Ocean and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v Nicaragua) aims to bring to a conclusion the boundary dispute between the two neighbouring states stretching back to the 1850s.

The judgment is particularly noteworthy as it is the first time the Court has determined a damages claim for environmental harm. While the award fell short of the amount claimed by Costa Rica, both states have hailed the judgment as an important step in the normalisation of the relations between the two states.

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Iran files case against the USA before the ICJ

In a press release published on 15 June 2016 (available here), the International Court of Justice ("ICJ") announced that Iran has instituted proceedings against the USA, in respect of alleged violations under the 1955 US-Iran Treaty of Amity, Economic Relations and Consular Rights (the "Treaty").

Notably, Iran's application concerns allegations that the US, through measures taken under its national law, has subjected assets and interests of Iran and Iranian entities, including the Iranian Central Bank ("Bank Markazi"),  to enforcement in the US in violation of immunities and other principles of international law that are upheld under the Treaty.

This case is likely to put the spotlight on the legality of the wide-ranging unilateral sanctions measures that have been and continue to be imposed by the US against Iran, notwithstanding the recent relaxation in January 2016 (see our previous blog post here), as well as questions of extra-territoriality and immunity under international law more generally.

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Constitutional rights vs. state immunity: implementation of an ICJ decision on sovereign immunity declared unconstitutional

A recent decision by the Italian Constitutional Court calls into question the applicability of generally accepted principles of sovereign immunity to acts where the relevant state action is particularly egregious violating constitutional rights. It may be possible for claimants to pursue a compensatory claim for damage done to property or even an expropriation claim in their national courts where the underlying foreign state action is so serious that the state should not be protected by sovereign immunity.

In decision No 238 of 22 October 2014, the Italian Constitutional Court held that proceedings brought by victims of war crimes alleged to have been committed by German armed forces between 1943 and 1945 could continue in Italian courts despite the International Court of Justice’s (ICJ) 2012 decision that Germany was immune from suit for these acts.

The balancing exercise conducted by the Italian Court, weighing obligations under customary international law principles against national constitutionally guaranteed rights, demonstrates that, where a state has immunity from suit under customary international law, a claimant may nonetheless be able to pursue a claim in a national court where its constitutional rights are at stake.

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Indonesia’s Ratification of the ASEAN Agreement on Transboundary Haze Pollution

On 16 September 2014, the Indonesian parliament ratified the ASEAN Agreement on Transboundary Haze Pollution (“Haze Treaty”), making it the last country to do so from among the ten ASEAN member signatories.

The ASEAN Agreement on Transboundary Haze Pollution

The Haze Treaty is a regional environmental treaty that obliges states party to prevent and mitigate haze pollution ‘through concerted national efforts and intensified regional and international cooperation‘. Executed in June 2002 in response to the growing haze issue in the region, the Haze Treaty prescribed a slew of measures designed to strengthen individual state commitment and enhance cooperation amongst parties in the fight against haze pollution. Primarily, these required each state party to:

  1. take measures to prevent and control activities that may lead to transboundary haze pollution, including implementing education and awareness building campaigns alongside legislative and other regulatory measures;
  2. take appropriate steps to monitor (i) areas prone to the occurrence of land and/or forest fires, (ii) environmental conditions conducive to such fires and (iii) any resulting haze pollution, and to designate a National Monitoring Centre for such purposes;
  3. ensure that appropriate legislative, administrative and financial measures are taken to mobilise resources necessary to respond to and mitigate the impact of haze pollution;
  4. facilitate the exchange of experience and relevant information among enforcement authorities of the signatory states, in particular to respond promptly to requests for relevant information sought by a state or states that are or may be affected by transboundary haze pollution; and
  5. promote and support scientific and technical research programmes related to the causes and consequences of transboundary haze pollution.

The Haze Treaty also provided for the setting up of a central ASEAN Co-ordinating Centre for Transboundary Haze Pollution Control to coordinate and monitor information on pollution, and the establishment of a Transboundary Haze Pollution Fund to be applied toward effective implementation of the Haze Treaty.

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