The Different compensation mechanisms in the judicial protection of the environment: A Challenge for Juridical Epistemology

Abstract

Compensation is an adaptive tool among diverse interests. In relation to the environment, a variety of mechanisms exist which apply distinct forms of compensation. Put another way, different juridical situations apply compensation as a means of resolving a difference. It can be from the perspective of indemnization, as in the Trail Smelter case or similarly in United Nations Compensation Commission; it can be to regulate future damage. It can be seen as a form of ex ante facto (before the fact) compensation as in the Ramsar Convention case. It can be a juridical route to induce private behaviour through the use of certain market tools as personal development mechanisms or within the ambit of international law as in France’s biodiversity compensation, the United States’ “mitigation banking”, Brazil’s “Servidão Ambiental” and China’s eco-compensation, among others. The epistemological challenge presents itself as a consequence of the variety of sources, the variety of actors and likewise the fields of action within the environmental juridical framework. These demand a broadening of the vision of state law. It also demands an attempt to integrate a systemic interpretation of the juridical, ecological and economic systems concerned. It is impossible to resort to some tools such as juridical pluralism, systems theory and the economic analysis of the environment. The concepts of co-regulation and self-regulation could be useful in the broadening that is required. Among other things it is necessary to set limits so that there is an equilibrium point around which ecological and economic interests may function. These limits allow us to set the path towards a systemic interpretation for the State and for the strengthening of the responsibilities of private entities. This analysis presents, in the first place, the compensation characteristics found in economic and juridical instruments; in the second place it examines how juridical pluralism, systemic interpretation, economic analysis and the concepts of co-regulation and self-regulation could be useful for the epistemological view of compensation as well as for juridical analysis