Science novit curia? Damage evaluation methods and the role of experts in the Costa Rica v Nicaragua case
In the Judgment concerning the quantification of damages owed by Nicaragua to Costa Rica, issued on 2 February 2018, the International Court of Justice for the first time awarded compensation for damages to the environment. The occasion was ripe with opportunities since the Court was offered the chance to provide guidance on several matters, including the methodology for assessing environmental damages and in particular the heatedly debated question of whether the Court should appoint its own experts when presiding over cases that present with complex scientific and technical aspects. In the case at hand, technical aspects such as inter alia the recovery period of environmental goods and the methodology for assessing the quantum of environmental damages were to be resolved by the Court to determine the appropriate amount of compensation. The Court could have decided the case either with reference to equity or by engaging in a technical examination of the damage caused by Nicaragua with the help of experts. This contribution argues that the Court has missed the opportunity to position itself on one side or other of the pendulum of these two opposite methodologies. In particular, while generally referring to the applicability of equity in cases where the quantification of damages cannot be based on clear evidence, the Court opted for an overall evaluation of damages and engaged with the evidence provided by the parties in a rather unclear methodological fashion. The result is a judgment that presents many flaws in its legal reasoning
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