Abstract
This chapter analyses the decisions of international courts and tribunals dealing with claims concerning environmental harm and discusses practical aspects related to the burden of proof, standard of proof, and methods of proof, which could be relevant in preparing for international litigation involving proving environmental harm.
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Notes
- 1.
ICJ, Case concerning the Temple of Preah Vihear (Cambodia v Thailand), Merits, Judgment, 15 June 1962, ICJ Reports 1962, p. 16.
- 2.
ICJ, Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, 20 April 2010, ICJ Reports 2010, para 162 (Pulp Mills (Judgment)). See also ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) Merits, Judgment, 27 June 1986, ICJ Reports 1986, para 101 (Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits)) (‘[I]t is the litigant seeking to establish a fact who bears the burden of proving it’); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Merits, Judgment, 26 February 2007, ICJ Reports 2007, para 204 (‘On the burden or onus of proof, it is well established in general that the applicant must establish its case and that a party asserting a fact must establish it’); Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, 23 May 2008, ICJ Reports 2008, para 45 (‘It is a general principle of law, confirmed by the jurisprudence of this Court, that a party which advances a point of fact in support of its claim must establish that fact’); Maritime Delimitation in the Black Sea (Romania v Ukraine), Judgment, 3 February 2009, ICJ Reports 2009, para 68 (‘As the Court has said on a number of occasions, the party asserting a fact as a basis of its claim must establish it’); Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Compensation, Judgment, 19 June 2012, ICJ Reports 2012, para 15 (Diallo (Compensation)) (‘As a general rule, it is for the party which alleges a fact in support of its claims to prove the existence of that fact’); Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v Greece), Judgment, 5 December 2011, ICJ Reports 2011, para 72 (‘[I]n general, it is the duty of the party that asserts certain facts to establish the existence of such facts’).
- 3.
The ICJ explained in the Diallo case: ‘As to each head of damage, the Court will consider whether an injury is established. It will then “ascertain whether, and to what extent, the injury asserted by the Applicant is the consequence of wrongful conduct by the Respondent”, taking into account “whether there is a sufficiently direct and certain causal nexus between the wrongful act … and the injury suffered by the Applicant.” … If the existence of injury and causation is established, the Court will then determine the valuation’ (Diallo (Compensation), above n 2, para 14).
- 4.
ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), Merits, Judgment, 15 December 2015, ICJ Reports 2015, para 208 (Certain Activities; Construction of a Road (Merits)).
- 5.
Ibid., para 211.
- 6.
Ibid., para 212.
- 7.
Ibid., para 212.
- 8.
Ibid., para 213.
- 9.
Eritrea-Ethiopia Claims Commission, Final Award on Eritrea’s Damages Claims, 17 August 2009, para 152.
- 10.
Ibid., para 155.
- 11.
Ibid., para 422.
- 12.
Ibid., para 423.
- 13.
Ibid., para 423.
- 14.
Ibid., para 425.
- 15.
See e.g., Article 290, para 1 of the United Nations Convention on the Law of the Sea (UNCLOS). See also MOX Plant Arbitration (Ireland v United Kingdom), Suspension Of Proceedings On Jurisdiction And Merits, And Request For Further Provisional Measures, Procedural Order No 3, 24 June 2003, para 55 (MOX Plant Arbitration (Procedural Order No 3)) (‘any harm caused, or likely to be caused, to the marine environment must be “serious” before the Tribunal’s power to prescribe provisional measures on that basis arises’); Pulp Mills (Judgment), above n 2, para 101 (stating that a State is ‘obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State’).
- 16.
UNEP Governing Council decision 6/14 of 19 May 1978, UNEP, Environmental Law: Guidelines and Principles, No 2, Shared Natural Resources (Nairobi, 1978).
- 17.
International Law Commission, Draft articles on Prevention of Transboundary Harm from Hazardous Activities, with commentaries (2001), comment (4) to Article 2. Yearbook of the International Law Commission, 2001, vol. II, Part Two.
- 18.
Ibid.
- 19.
MOX Plant Arbitration (Procedural Order No 3), above n 15, para 54 (‘As the Tribunal has already noted, the liquid wastes discharged from the MOX plant into the Irish Sea contain small quantities of radionuclides, some of which (e.g. Cs-137 and Pu-241) have an extremely long half-life. The wastes in question arise not as a direct by-product of reprocessing of spent nuclear fuels, but from ancillary activities such as the cleaning of the plant and sanitary operations’) and para 55 (‘the Tribunal does not consider that Ireland has established that any harm which may be caused to the marine environment by virtue of the operation of the MOX plant, pending the determination of this case on the merits, meets this threshold test’).
- 20.
Ibid., para 54 (‘The Attorney-General for Ireland, in opening the case, accepted that “…the level of discharges from the MOX plant…is not of a significant magnitude…”).
- 21.
Certain Activities; Construction of a Road (Merits), above n 4, paras 174, 177, 178 (‘First, it brought about changes in the river morphology, as large quantities of the sediment eroded from the road accumulated on the bed of the Lower San Juan, thereby exacerbating the problems for navigation in this stretch of the river and rendering additional dredging necessary to restore the navigability of the channel. Moreover, sediment eroded from the road created large deltas along the Costa Rican bank of the river that obstruct navigation. Secondly, Nicaragua argues that sediment eroded from the road caused harm to the river’s water quality and ecosystem. Thirdly, Nicaragua alleges that the construction of the road has had an adverse impact on tourism and the health of the river’s riparian communities. In addition, Nicaragua maintains that Costa Rica’s continuing failure to comply with road construction standards exposes Nicaragua to future harm, and that Costa Rica has failed to take appropriate remediation measures. Nicaragua further contends that additional risks derive from the possibility of spills of toxic materials into the river, the further development of the Costa Rican bank of the river and the likelihood of natural disasters caused by adverse events such as hurricanes, tropical storms and earthquakes’).
- 22.
Ibid., para 187.
- 23.
Ibid., para 192.
- 24.
Ibid.
- 25.
Ibid.
- 26.
Ibid.
- 27.
Ibid., para 193. Costa Rica, based on its main expert’s report, estimated the river’s total sediment load to be approximately 12,678,000 tonnes per year using measurements from the Colorado River. Nicaragua has not provided a comparable figure, although its expert stated that the current total sediment load of the San Juan River is roughly 13,700,000 tonnes per year.
- 28.
Ibid., para 194.
- 29.
Pulp Mills (Judgment), above n 2, para 225.
- 30.
Ibid., para 227. See also ibid., paras 242–243 (‘The Court notes that CARU has not adopted a water quality standard relating to levels of total phosphorus and phosphates in the river. Similarly, Argentina has no water quality standards for total phosphorus. The Court will therefore have to use the water quality and effluent limits for total phosphorus enacted by Uruguay under its domestic legislation…to assess whether the concentration levels of total phosphorus have exceeded the limits laid down in the regulations of the Parties adopted in accordance with Article 41 (a) of the 1975 Statute’).
- 31.
Ibid., para 228. For the sake of completion, the Court did find a few instances in which the concentrations exceeded the prescribed limits. However, ‘in the absence of convincing evidence that this is not an isolated episode but rather a more enduring problem, the Court is not in a position to conclude that Uruguay has breached the provisions of the 1975 Statute.’ Ibid., para 228.
- 32.
Burlington Resources Inc. v Republic of Ecuador, ICSID Case No ARB/08/5, Decision on Counterclaims, 7 February 2017 (Burlington v Ecuador (Counterclaims)); Perenco Ecuador Limited v Republic of Ecuador, ICSID Case No ARB/08/6, Interim Decision on the Environmental Counterclaim, 11 August 2015 (Perenco v Ecuador (Interim Decision on the Environmental Counterclaim)).
- 33.
Pulp Mills (Judgment), above n 2, para 164.
- 34.
Ibid., para 164.
- 35.
Ibid., para 162.
- 36.
Ibid., para 163.
- 37.
Ibid., para 163. In his separate opinion, Judge Greenwood confirmed that the ‘nature of the case and of the obligations under the Statute does not alter the fundamental principle that, in proceedings before the Court, the burden of proving any given fact rests on the party asserting that fact.’ See Separate Opinion of Judge Greenwood, para 24.
- 38.
WTO, European Communities—Measures Concerning Meat and Meat Products (Hormones), Appellate Body Report, 16 January 1998, WT/DS26/AB/R; WT/DS48/AB/R, paras 97–109 (EC—Hormones (Appellate Body Report)).
- 39.
Ibid., paras 124–125.
- 40.
David R. Aven, Samuel D. Aven, Carolyn J. Park, Eric A. Park, Jeffrey S. Shioleno, Giacomo A. Buscemi, David A. Janney and Roger Raguso v The Republic of Costa Rica, Final Award, 18 September 2018, ICSID Case No UNCT/15/3, para 553 (Aven v Costa Rica (Final Award)).
- 41.
Ibid., para 525.
- 42.
Ibid., para 526.
- 43.
Ibid., para 527.
- 44.
Ibid., para 444.
- 45.
Ibid., para 444.
- 46.
Ibid., para 552.
- 47.
Ibid., para 553.
- 48.
Ibid., para 554.
- 49.
For example, the Agreement on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (8 September 1995, 2167 UNTS 3, entered into force 11 December 2001) and the Stockholm Convention on Persistent Organic Pollutants (22 May 2001, 2256 UNTS 119, entered into force 17 May 2004) do not reverse the burden of proof, notwithstanding that both treaties are expressly based on the precautionary approach set out in Principle 15 of the Rio Declaration. By contrast, some treaties do reverse the burden of proof. See e.g., The Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (London Protocol) (7 November 1996, entered into force 24 March 2006); the Convention for the Protection of the Marine Environment of the North-East Atlantic (the ‘OSPAR Convention’) (22 September 1992, 2354 UNTS 67, entered into force 25 March 1998); Communication from the Commission of the European Communities on the Precautionary Principle (2000), IP/00/96 (‘Assigning responsibility for producing scientific evidence is already a common consequence of these measures. Countries that impose a prior approval (marketing authorisation) requirement on products that they deem dangerous a priori reverse the burden of proving injury, by treating them as dangerous unless and until businesses do the scientific work necessary to demonstrate that they are safe’) https://ec.europa.eu/commission/presscorner/detail/en/IP_00_96. Accessed 10 September 2021.
- 50.
Burlington v Ecuador (Counterclaims), above n 32, para 247.
- 51.
Ibid., para 238.
- 52.
Perenco v Ecuador (Interim Decision on the Environmental Counterclaim), above n 32, para 371.
- 53.
Ibid., para 372.
- 54.
Diallo (Compensation), above n 2, para 14. See also Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) , Compensation, Judgment, 2 February 2018, ICJ Reports 2018, para 32 (Certain Activities (Compensation)).
- 55.
Diallo (Compensation), above n 2, para 14.
- 56.
Combacau and Sur 1995, p. 539.
- 57.
‘The Geneva Arbitration’, in Moore 1898, p. 641.
- 58.
See Yearbook of the International Law Commission, 2001, Vol. II, Part 2, p. 93.
- 59.
Responsabilité de l'Allemagne a Raison des Dommages Causés dans les Colonies Portugaises du Sud de l'Afrique, Award, 31 July 1928, 2 RIAA 1011, p. 1031.
- 60.
Certain Activities (Compensation), above n 54, para 34.
- 61.
Ibid.
- 62.
Ibid., para 34.
- 63.
Ibid., para 196.
- 64.
Ibid., para 41.
- 65.
Ibid., para 42.
- 66.
Ibid.
- 67.
Ibid., para 52.
- 68.
Ibid.
- 69.
Ibid., para 81.
- 70.
Ibid., para 79.
- 71.
Ibid., para 35.
- 72.
Ibid., para 35 (citing to Trail Smelter Arbitration, Award, 11 March 1941, 3 RIAA, p. 1920).
- 73.
Ibid.
- 74.
- 75.
Brown 2006, p. 98 (the commentator identifies at pp. 98–101 five standards of proof that have been applied in international judicial proceedings).
- 76.
IACtHR, Velásquez-Rodríguez v Honduras, Judgement, Merits, 29 July 1988, 95 ILR 258, p. 285, referring to the ICJ Judgments in Corfu Channel (Albania v United Kingdom), Merits, Judgment, 9 April 1949, ICJ Reports 1949, p. 4 and Military and Paramilitary Activities in und against Nicaragua (Nicaragua v United States of America), Merits, Judgment, 27 June 1986, ICJ Reports 1986, p. 14.
- 77.
Pulp Mills (Judgment), above n 2, para 210.
- 78.
Ibid., paras 221–228.
- 79.
Ibid., para 189.
- 80.
Ibid., para 250.
- 81.
Ibid., para 254.
- 82.
Ibid., para 259.
- 83.
Ibid., para 265.
- 84.
Certain Activities (Compensation), above n 54, para 119; see also para 192 (‘Thus, the Court is not convinced by Nicaragua’s argument that the absolute quantity of sediment in the river due to the construction of the road caused significant harm per se’).
- 85.
Ibid., para 206 (‘Nicaragua has not presented sufficient evidence to prove that these deltas, which only occupy the edge of the river’s channel on the Costa Rican bank, have had a significant adverse impact on the channel’s morphology or on navigation’).
- 86.
EC—Hormones (Appellate Body Report), above n 38, para 104.
- 87.
WTO, United States—Measure Affecting Imports of Woven Wool Shirts and Blouses from India, Appellate Body Report, 25 April 1997, WT/DS33/5, p. 14.
- 88.
WTO, United States—Import Prohibition of Certain Shrimp and Shrimp Products, Appellate Body Report, 12 October 1998, WTO/DS58/AB/R, paras 7.14, 7.30.
- 89.
WTO, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, Appellate Body Report, 12 March 2001, WT/DS135/AB/R, para 8.193 (EC—Asbestos (Appellate Body Report)).
- 90.
Ibid., para 8.194.
- 91.
- 92.
Certain Activities; Construction of a Road (Merits), above n 4, para 176. See also IACtHR, Kaliña and Lokono Peoples v Suriname, Judgment, 25 November 2015, Ser. C, No 309, para 24 (‘Based on its consistent case law concerning evidence and its assessment, the Court will examine and assess the documentary probative elements submitted by the parties and the Commission, the statements, testimony and expert opinions, and also the helpful evidence requested and incorporated by this Court, when establishing the facts of the case and ruling on the merits. To this end, it will abide by the principles of sound judicial discretion, within the corresponding legal framework, taking into account the body of evidence, and the arguments that have been submitted’) (Kaliña and Lokono Peoples v Suriname (Judgment)).
- 93.
Perenco v Ecuador (Interim Decision on the Environmental Counterclaim), above n 32, paras 410, 447.
- 94.
Ibid., para 410.
- 95.
Ibid.
- 96.
Ibid., para 447.
- 97.
In Lhaka v Argentina, the IACtHR was confronted with a claim that indigenous communities’ human rights were violated because Argentina failed to recognize and protect their lands from practices that caused environmental harm. The specific instances of environmental harm were demonstrated by testimonial evidence. Claimants also submitted to the Court the contemporaneous official documents indicating that Argentina was aware of the practices causing environmental harm but took no actions (Case of Indigenous Communities of the Lhaka Honhat Association (Our Land) v Argentina, Judgment, 6 February 2020, Series C, No 400 (Spanish only), paras 258 (‘In more specific terms, it has been affirmed by the State that the Creole settlers raise “larger cattle” in the open field. The Honorary Advisory Commission created by Decree 18/93 of 1993 for the regularization of settlements in fiscal lot 55, pointed out that “livestock without grazing control has led to the destruction of resources, with the disappearance of around fifty herbaceous species and bushes in short time”. He also highlighted that, as a result of uncontrolled grazing, there was “a general loss of biodiversity, due to the selectivity of livestock in their diet, while a transformation of the landscape occurs due to the elimination of areas of open grasslands’) and para 262 (‘Another aspect pointed out by the representatives is that of illegal logging. According to the representatives’ observations, the “illegal” nature of the logging activity is supported by different provisions that, as of 1991, restricted forest exploitation (infra, para 269). State documentation has indicated as one of the causes of the “bio-socio-economic degradation of D[e]p[artamen] to […] Rivadavia” the “forestry activity” that is “carried out without the application of minimum standards of rationality nor of precautions that tend to assure the future of the wooded masses, and even less to make compatible with the livestock uses and the requirements of the fauna. The [vast] environmental legislation in force does not have any positive effect, […] clandestine forestry activity is almost a habitual thing’).
- 98.
South China Sea Arbitration (Philippines v China), Award, 12 July 2016, PCA Case No 2013-19, paras 950, 968 (South China Sea Arbitration (Merits)).
- 99.
Ibid., para 969.
- 100.
Perenco v Ecuador (Interim Decision on the Environmental Counterclaim), above n 32, paras 838–839.
- 101.
ECHR, Jugheli and Others v Georgia, Judgment, 13 July 2017, No 38342/05, para 50 (Jugheli and Others v Georgia (Judgment)).
- 102.
Ibid., para 18. Among these were the following: (1) an expert examination of 28 October 2002 undertaken by the Expertise and Special Research Centre at the Ministry of Justice, which had concluded that the plant did not have a buffer zone around it and that it lacked a required filter system (ibid., 19); a report of the Institute of Environmental Protection at the Ministry of Environment, which had revealed that the plant’s technical compliance document was defective because it had indicated the wrong height of the plant’s chimneys, and its data on pollution could be ‘misleadingly decreased’ (ibid., para 20).
- 103.
Ibid., paras 63 and 67. In Fadeyeva v Russia, the ECtHR relied on official reports that illustrated a rise in pollution levels that exceeded the domestic norms, which demonstrated the existence of harm (Fadeyeva v Russia, Judgment, 30 November 2005, No 55723/00, para 83). In Taskin v Turkey the Court had to decide whether Turkey had breached the ECHR by permitting a gold mine to operate in Ovacik. The permits were issued by the local authorities in 1992, including a permit to use cyanide leaching in the mining process. The applicants challenged the permits and in 1997 the Supreme Administrative Court found in their favour. The ECtHR relied on the findings of the Turkish Supreme Administrative Court as well as the conclusions of the relevant environmental impact studies, to find that a risk to the environment and human health existed and Turkey was in breach of Article 8 of the Convention (Taşkın and Others v Turkey, Judgment, 10 November 2004, No 46117/99, paras 119, 121).
- 104.
Pulp Mills (Judgment), above n 2, paras 210, 226–228.
- 105.
Jugheli and Others v Georgia (Judgment), above n 101, paras 68–69.
- 106.
Certain Activities; Construction of a Road (Merits), above n 4, paras 202, 206.
- 107.
Ibid., para 206.
- 108.
See e.g., Burlington v Ecuador (Counterclaims), above n 32, paras 459, 533, 630, 648, 706 (The Tribunal relied on satellite imagery and aerial photographs of the sites adjacent to oil platforms to assess the actual use of land surrounding the platform in order to decide what sensitivity analysis to apply in establishing environmental harm (ibid., para 343). Where the record contained no images or photographs from the relevant period, the Tribunal decided on the basis of the best available evidence (ibid., para 342).
- 109.
Aven v Costa Rica (Final Award), above n 40, para 584.
- 110.
Ibid., para 582.
- 111.
Ibid., para 585.
- 112.
Ibid., para 586.
- 113.
South China Sea Arbitration (Merits), above n 98, paras 848, 968.
- 114.
Articles 48 and 50 of the Statute of the International Court of Justice and Article 67 of its Rules on the appointment of experts by the ICJ. One of the experts had to assess damages resulting from alleged illegal exploitation of natural resources. The Court relied on those provisions to appoint by Order of 12 October 2020 three experts in Case Concerning Armed Activity on the Territory of the Congo (Democratic Republic of the Congo v Uganda). In the WTO context, article 11.2 of the SPS Agreement and Article 13 of the DSU enable panels to seek information and advice as they deem appropriate in a particular case. These rules, however, ‘leave to the sound discretion of a panel the determination of whether the establishment of an expert review group is necessary or appropriate’. Hence, panels may seek information and advice as they deem appropriate in a particular case. This includes consulting with individual experts. In Hormones the Panel appointed experts—in their individual capacity—and sought their opinion on certain scientific and other technical matters raised by the parties to the dispute (EC—Hormones (Appellate Body Report), above n 38, paras 146–156. Similarly, in Asbestos, the panel based its conclusions with respect to the existence of a public health risk on the scientific evidence put forward by the parties and the comments of the experts consulted within the context of the present case (EC—Asbestos (Appellate Body Report), above n 89, paras 8.182, 8.188 and 8.19).
- 115.
Pulp Mills (Judgment), above n 2, para 165.
- 116.
Ibid., para 167.
- 117.
Ibid., Separate Opinion of Judge Greenwood, para 27.
- 118.
Ibid.
- 119.
Ibid.
- 120.
Pulp Mills (Judgment), above n 2, para 168.
- 121.
Ibid., paras 226–228.
- 122.
EACJ, Africa Network for Animal Welfare (ANAW) v The Attorney General of the United Republic of Tanzania, Appeal Judgment No 3, 15 March 2012, p. 13.
- 123.
EACJ, Africa Network for Animal Welfare (ANAW) v The Attorney General of the United Republic of Tanzania, First Instance Division Judgment No 9, 20 June 2014, para 68.
- 124.
Ibid., para 81 (‘Having anxiously considered the matter and as can be seen above, we have found that all evidence points to the fact that if the road project is implemented as originally intended, then following UNESCO’s findings it could have an irreversible negative impact on the Serengeti environment and ecosystem. While this view is not expressly shared by the Respondent, we are persuaded by those findings. In fact, the Respondent seemed to have taken note of that fact and has effectively suspended the project and that is an admission that it has realized the error in the initial decision. His own consultant also gave a long list of possible negative impacts and which tally with those given by the Applicant’).
- 125.
Aven v Costa Rica (Final Award), above n 40, para 499.
- 126.
Ibid.
- 127.
Ibid. See also ibid., para 498 where the Aven Tribunal discounted another expert opinion for its incompleteness (‘During the examination of environmental expert witnesses (wetlands and soils) during the December Hearing the discussion centred at one point on whether the soils in the wetlands alleged by Respondent to exist actually had hydric soils. Dr. Baillie argued in his report that he had not found such conditions, but when examined as to whether he shared the findings of Green Roots, Dr. Baillie indicated that he had not drilled to the depth of 105 cms, which is the depth of drills used by Green Roots, which they deemed necessary because in some of the areas there had been work undertaken. In other words, had the ground be untouched, the drills could be closer to the ground, but when it was clear that works had been performed, that it was indispensable to go deeper. And these works were precisely over the wetland referred to by Dr. Baillie as “Bajo 1” which is the same as that referred to in the KECE Report as Wetland # 1. Dr. Baillie indicated that he did not feel it was appropriate to drill that location as there had been development works there, and article 5(b) of the Executive Decree No 35803-MINAE contemplates a definition of hydric soils under natural conditions’).
- 128.
Ibid., para 496 (‘The First and Second Expert Reports from KECE conclude the existence of at least seven (7) wetlands on the Las Olas Project site, of which one was impacted. In addition, KECE was able to identify the location of another wetland outside of the project site but within what he referred to as the “Las Olas Ecosystem”, based on the existence of the elements which the RAMSAR Convention and Costa Rica’s law establish: (i) the dominance of hydrophytic vegetation; (ii) the presence of hydrological indicators, and (iii) the presence of hydric soils. These sites were referred to in a numerical order, starting from the southwestern end of the property, and then in a clockwise order along the property. Thus, Wetlands # 1 and 2 are located in the area of Easements, while the rest are located in the Condo Section. Wetland # 4 is located adjacent to the northwestern portion of the property. It is worthwhile to note that the site of defined Wetlands in the KECE Report matches those under the Baillie Reports; for example, KECE # 5 would correspond to “Bajo B2”; KECE 3 would correspond to “Bajo B4”; and KECE 2, would correspond to “Bajo B6”’).
- 129.
Burlington v Ecuador (Counterclaims), above n 32.
- 130.
Perenco v Ecuador (Interim Decision on the Environmental Counterclaim), above n 32, para 527.
- 131.
Ibid., para 581.
- 132.
Ibid., para 586.
- 133.
Ibid., para 618. In appointing an independent expert, the Perenco Tribunal took all necessary precautions to ensure the impartial and objective work of the expert, as reflected in paras 611(8), (11), (19) and (20): ‘611(8) The Tribunal will consult the Parties with regard to the appointment of the Tribunal’s expert and will take their views into account but the decision as to the identity of and scope of work of the expert will be that of the Tribunal alone. … (11) The expert will be required to perform its work in accordance with the directions set out in this Decision and as set out in any protocol that might be issued by the Tribunal after consultation with the Parties. … (19) The Parties shall be entitled to send a representative to witness the expert’s sampling activities. … (20) The Parties shall be given an opportunity to comment on the expert’s report prior to the Tribunal’s rendering a decision or award on this phase of the proceeding’).
- 134.
Perenco Ecuador Limited v Republic of Ecuador, ICSID Case No ARB/08/6, Award, 27 September 2019, para 743. The Consolidated Independent Expert Report noted in this regard: ‘It is important to note that the Parties have had the opportunity to pose questions and comment on my work throughout this engagement, including before and during the performance of the field campaign. In addition, representatives of the Parties were present during all onsite activities, including the initial exploratory visit to the Blocks as well as during the performance of sample mark-outs and collection of samples from all investigated media. The field program was implemented over a four-month period and issues raised by the Parties during that time were always considered; in certain cases, my approach was adjusted to incorporate expanded information or to address concerns (when these were reasonable and technically valid). It was not always possible to reach full agreement with both Parties, as their commitments to their clients and strategic approaches differed from my own. However, in all cases, a respectful dialogue was established with both Parties, and to my knowledge neither expressed concerns regarding bias for or against either Party in this matter. Relevant correspondence, emails, and other documentation of this dialogue between the Parties and myself or field personnel is included in Appendix B’).
- 135.
Ibid., para 745.
- 136.
Ibid.
- 137.
Ibid., para 746.
- 138.
Ibid.
- 139.
Ibid., para 748.
- 140.
A deponent may be called to give oral testimony as a witness in proceedings and thus may also be subject to cross-examination and questioning.
- 141.
Lhaka Honhat Association (Our Land) v Argentina (Judgment), above n 97, para 263.
- 142.
Ibid., para 265 (‘Chief Rogelio Segundo, in the public hearing before this Court, explained that logging is something that “greatly harms the territory” because “the forest is degraded”, “there is no flower or fruit”, there are animals that leave and fewer hives to collect honey. He added that, despite the complaints made to the State, they have not been able to stop this activity, and that as a result of it, floods have been generated. Chief Francisco Pérez, for his part, pointed out that “the State does not control, the Creoles are the first to cut and we chieftains say ‘we are going to denounce’, and nothing, denounce, denounce and nothing, there is no answer.” After consulting at the public hearing about how they get their medicines due to the scarcity of typical tree species, Mr. Pérez pointed out that his system of medicine depends on the forests and that “when [there is] rain the plants grow but the problem is that when the plant grows, sweetheart, the animals come and eat the plant, that's why there aren't any. We think that if [from] once the animals are removed, in two years we can have a beautiful forest”’).
- 143.
Ibid., paras 286–289.
- 144.
Kaliña and Lokono Peoples v Suriname (Judgment), above n 92, para 199.
- 145.
Ibid., para 23.
- 146.
Ibid., para 25.
- 147.
Ibid., para 217. See also ibid., para 92 (‘Regarding the adverse impact of the mining operations in the nature reserve, the hunting and fishing activities, which were traditional in the area, have declined considerably. In this regard, the noise and vibrations caused by the trucks and the dynamite explosions, the contamination of land and streams, and the destruction of fruit-bearing trees caused the wildlife to flee that the indigenous peoples hunted and fished to feed the members of the local communities. Also, access to the area of the mining concessions was prohibited to the indigenous peoples and to any other unauthorized person’).
- 148.
Ibid., para 218.
- 149.
Ibid., para 219.
- 150.
Ibid., para 220.
- 151.
According to the Tribunal: ‘[The witness] provided details as to the number of times that he met with counsel and the amount he estimated that he was paid by Perenco to appear as a witness only when pressed by the Tribunal’s President and even then he was vague. These aspects of the witness’ demeanour, his seeking out Perenco’s counsel to provide evidence against his former employer soon after arriving at a settlement with it, and the animus between him and [his former employer] leads the Tribunal to treat his evidence with caution’ (Perenco v Ecuador (Interim Decision on the Environmental Counterclaim), above n 32, paras 550–553).
- 152.
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits), above n 2, para 69.
- 153.
Armed Activity on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, 19 December 5005, ICJ Reports 2005, p. 36, para 65 (quoting Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits), above n 2, para 70).
- 154.
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras), Judgment, 8 October 2007, ICJ Reports 2007, p. 659, para 244.
- 155.
Ibid., para 244 (quoting Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits), above n 2, para 68).
- 156.
Ibid.
- 157.
Ibid.
- 158.
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits), above n 2, para 67.
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Parkhomenko, Y., Nicolas, N., Salas Kantor, B. (2022). Proving Environmental Harm Before International Courts and Tribunals. In: Sobenes, E., Mead, S., Samson, B. (eds) The Environment Through the Lens of International Courts and Tribunals. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-507-2_16
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