Reparation: Restitution, Compensation and Satisfaction
Chapter Sixty-Nine
Syllabus topic 3, "International Concern for Environment Protection"
Pages 206 to 208 of 663
In one line
A State responsible for a wrongful act must stop, and must wipe out the consequences by restitution, compensation or satisfaction, and since 2018 the loss of an ecosystem's services is itself compensable.
In exam wording: under articles 28 to 39 of the Articles on Responsibility of States for Internationally Wrongful Acts 2001, the responsible State is under a continuing duty of performance, an obligation of cessation and, where circumstances require, assurances of non-repetition, and an obligation to make full reparation for the injury caused, which includes any damage, whether material or moral; reparation takes the form of restitution, compensation or satisfaction, singly or in combination.
The provisions, in order
- Article 28: the legal consequences of an internationally wrongful act.
- Article 29: the continued duty of performance. Responsibility does not release the State from the obligation.
- Article 30: cessation and non-repetition. The State must cease the act if it is continuing, and offer appropriate assurances and guarantees of non-repetition if circumstances so require.
- Article 31: full reparation for the injury caused, injury including any damage, whether material or moral.
- Article 32: internal law is no justification for failure to comply.
- Article 33: to whom the obligations are owed.
- Article 34: full reparation takes the form of restitution, compensation and satisfaction, singly or in combination.
- Article 35: restitution. Re-establish the situation which existed before the act, provided this is not materially impossible and does not involve a burden out of all proportion to the benefit.
- Article 36: compensation. For financially assessable damage, including loss of profits, insofar as it is established.
- Article 37: satisfaction. For injury not made good by restitution or compensation. It may consist of an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality, and it must not be out of proportion to the injury or humiliating to the responsible State.
- Article 38: interest, where necessary to ensure full reparation.
- Article 39: contribution to the injury by the injured State or person is taken into account.
Why restitution rarely works here
Because environmental damage is often irreversible. A species is extinct. A wetland has changed regime. Article 35 excuses restitution where it is materially impossible, and it usually is. That is exactly the point the Court made in Gabcikovo-Nagymaros Project when it said that vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage.
So the practical remedies are compensation and satisfaction.
Compensation, and the case that made it work
Facts. Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation, ICJ Reports 2018, p. 15. The Court had held in December 2015 that the disputed territory in the northern part of Isla Portillos belonged to Costa Rica and that Nicaragua's excavation of three channels there and its military presence were unlawful. The area includes a wetland of about three square kilometres protected under the Ramsar Convention. The parties could not agree on compensation.
Reparation: Restitution, Compensation and Satisfaction
Held. Damage to the environment, and the consequent impairment or loss of the ability of the environment to provide goods and services, is compensable under international law. The Court noted that in cases of alleged environmental damage particular difficulties arise about the existence of damage and about causation, since damage may be due to several concurrent causes or the science may be uncertain, and that these must be addressed as they arise on the facts. It rejected both parties' valuation methodologies and made an overall valuation of its own, awarding one hundred and twenty thousand United States dollars for the impairment or loss of the environmental goods and services of the impacted area in the period before recovery, and two thousand seven hundred and eight dollars and thirty-nine cents for restoration, together with specified monitoring expenses. Compensation must not be punitive, and there must be a sufficiently direct and certain causal nexus between the wrongful act and the injury.
Why it matters here. It is the first judgment of the Court to put a money value on the loss of an ecosystem's services. Its figure is small and its principle is large, and the principle is what an examiner wants.
Satisfaction, and why it is the environmental remedy that is actually given
In Pulp Mills on the River Uruguay Uruguay breached its procedural obligations and no substantive harm was proved. The Court held that a declaration of the breach was itself appropriate satisfaction. Nothing was paid.
That outcome is characteristic. Environmental cases very often end in a declaration, because the procedural breach is provable and the substantive harm is not.
Distinctions
| Restitution | Compensation | Satisfaction | |
|---|---|---|---|
| Article | 35 | 36 | 37 |
| What it does | Restores the prior situation | Pays for financially assessable damage | Acknowledges the wrong |
| Limits | Material impossibility; disproportionate burden | Damage must be established | Not disproportionate; not humiliating |
| Environmental use | Rare, because damage is often irreversible | Certain Activities 2018 | Pulp Mills 2010 |
Worked example
State BB's regulatory failure allows a discharge that kills the fish in a shared lake for three years.
- Cessation, article 30. Stop the discharge. This comes before everything.
- Assurances of non-repetition, article 30(b). Appropriate if circumstances require, for instance a demonstrated regulatory failure.
- Restitution, article 35. Restock the lake, if materially possible and not disproportionate.
- Compensation, article 36. The lost catch, which is financially assessable, and, on Certain Activities, the impairment of the lake's ecological services during the three years.
- Interest, article 38, where necessary for full reparation.
- Contribution, article 39. If the injured State's own discharges contributed, that is taken into account.
Reparation: Restitution, Compensation and Satisfaction
Six articles, one factual situation. That is how to structure an answer on reparation.
What it does NOT mean
Reparation is not punishment. The 2018 judgment says compensation must not have a punitive or exemplary character.
Full reparation does not mean full restoration. It means wiping out the consequences so far as the three forms allow, and where restitution is impossible the injured State receives money.
It does not require damage for responsibility to arise. Damage is required for compensation, not for the wrongful act.
Quick revision
- Articles 28 to 39. Cessation and non-repetition, article 30; full reparation, article 31; three forms, article 34.
- Restitution, article 35, limited by material impossibility and disproportion.
- Compensation, article 36, for financially assessable damage including loss of profits.
- Satisfaction, article 37, not disproportionate and not humiliating.
- Certain Activities 2018: environmental damage and lost ecosystem services are compensable; no punitive element; a sufficiently direct and certain causal nexus.
- Pulp Mills 2010: a declaration as satisfaction for a procedural breach.
Test yourself
1. Name the three forms of reparation with their articles. Restitution, article 35; compensation, article 36; satisfaction, article 37.
2. What did the 2018 compensation judgment decide in principle? That damage to the environment and the consequent impairment or loss of the environment's ability to provide goods and services is compensable in itself, that compensation must not be punitive, and that a sufficiently direct and certain causal nexus is required.
3. Why is restitution rarely the environmental remedy? Because environmental damage is often irreversible, so restitution is materially impossible or disproportionately burdensome, which article 35 excuses.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.