Harm to the Environment: The Right to Compensation and the Assessment of Damages

By Peter Wetterstein | Go to book overview
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12
COSCA: A Complementary System for Compensation of Accidental Pollution Damage

HENRI SMETS*


1. INTRODUCTION: LATENT CONFLICT BETWEEN POLLUTERS AND THEIR NEIGHBOURS

When there is a case of serious accidental pollution, it is generally agreed that the victims of this pollution should be compensated for the prejudice suffered. Whatever the reason for a Bhopal-type accident, whether it was caused by bad management on the employer's part, sabotage by an employee with a grudge, or even lightning, the victims deserve compensation. Whatever the reason for the accidental pollution of a river, riparians and anglers should be compensated and the river should be rehabilitated. Pollution is an act of social aggression, which should at least be compensated for, whenever it is not possible to avoid it.

The victims' right to compensation, together with the polluter pays principle, shows who the payer should be. The fact that governments recognize this principle in domestic law and even go so far as to declare that the polluter pays principle is a 'principle of international environmental law'1 should have resulted in the efficient organization of full and rapid compensation of victims by the polluter.

The reality is that, while the polluter frequently compensates the victims of the most serious cases of pollution, many other victims remain without compensation. For the polluter to be the payer, it is necessary to be able to identify the culprit, who may have chosen surreptitiously to discharge toxic products into

____________________
*
The author would like to express his sincere thanks to Professor H. Bocken, whose works were at the origin of this study.
1
International Convention on Oil Pollution Preparedness, Response and Cooperation ( 1990). The Single European Act ( 1986) and the Treaty of Maastricht ( 1992) also make reference to the polluter pays principle. On the polluter pays principle and pollution insurance, see OECD Environment Monographs, The Polluter Pays Principle and Pollution Insurance ( 1992). See also H. Smets, ' "Le principe pollueur-payeur, un principe économique érigé en principe de droit de l'environnement"' ( 1993) 97 Revue Générale de Droit International Public No. 2, 339-64; idem, ' "The Polluter Pays Principle in the Early 1990s"', in L. Campiglio et al. (eds.), The Environment after Rio ( 1994), 131- 48; and idem, ' "Les exceptions admises au principe pollueur payeur"' ( 1994) 20 Droit et Pratique du Commerce International No. 2, 211-37.

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