Proving Environmental Harm in Inter-State Litigation: Challenges and Evolving Strategies

Abstract

The purpose of the work is to systematize the discipline of the proof of environmental harm in inter-State litigation, examining, in light of the practice of international courts and tribunals, the following five aspects: (i) definition of the actionable ‘environmental damage’; (ii) burden of proof and presentation of evidence; (iii) means and methods of proof; (iv) standard of proof; and (v) evaluation of the damage. The analysis takes into account the most relevant case law and doctrinal studies in the field, reconstructing a general framework, whilst taking into account specificities that might derive from specific applicable regimes. The main aim of the work is to assess whether the challenges in proving environmental harm are fostering – or have already led to – the creation of a different set of applicable rules on evidence.