Workshop on

1. Zsuzsanna Kocsis-Kupper :Environmental pollution cases and their legal consequences Workshop on Transboundary Accidental Water Pollution, Liability and Compensation: Challenges and Opportunities 21-22. 05. 2007- Budapest

2. Examined cases

4. What are the legal choices of action following an accident? Against the operator (national courts - national or private int. law) • Administrative: sanctions are low, fines are ineffective, licences are not suspended • Criminal: usually penal responsibility is rejected, sanctions are low, ineffective, punishment is not preventive • Civil: claims for compensation are many times rejected, if responsibility is established, usually there is another procedure concerning the amount of damage. The operators often become insolvent, and at the end compensations are not paid Against the state of origin (int. courts, special courts, arbitration - pub. int. law) • International: claims for state responsibility are rarely submitted, not effective

5. Other possibilities Outside court settlements: • OK Tedi mining accident Papua New Guinea, 1984 (500 M USD); • the Contara chemical tank accident, USA, 1991 (38 M USD); • the Lower Fox PCP accident, USA, 1997 (10 M USD); • the Exxon Valdez, Gulf of Alaska, 1989 (150 M fine, 100 M restitution)

6. What are the results? The actual amount of compensation paid to the victim’s remains bellow 10% of their claims, The clean up costs are mostly born by the state or municipality and only partially by the operator, The restoration of the environment is not complete, The future operation of the site is technically not secured.

7. Therefore the conclusion is that There is not yet an effective legal regime to make operators accountable after the accident: the procedures are time consuming and ineffective

8. Development of legislation • EC law: development of special environmental legislation (modification of the Seveso II directive, new mining directive, new BREF document, Liability directive, Proposal on Env. crimes) • General international law: ILC Articles on prevention of transboundary damage from hazardous activities • Special liability regimes: Lugano Convention, Basel Protocol, Kiev Protocol (various activities, operator’s liability) • Special regimes: Oil Funds, Nuclear Regimes, Transport regimes (special, limited schemes)

9. Among the previous regimes • From the point of operator’s liability up till now only the special Oil Funds were really operational • There are uncertainities with the implementation of the EC Liability Directive, problems with the issue of financial securities • Problems with ratifying the special liability regimes

10. Not surprising that After an accident everyone wants to act • many new pieces of legislation is adopted, • many states join to already existing treaties and regimes However, attention is mostly paid to prevention and the issue of liability is never settled effectively —even though it is in the interest of all states and inhabitants.

11. Pollution does not stop at the borders Attention is indeed to be paid to preventive measures, but follow- up actions are inevitable as well: • Transboundary pollution needs to be tackled • The operator should be held liable whether the pollution is inland or transboundary

12. The past showed us that • There is definitely a need for an effective liabilityregime in the international field just as much • there is a need for establishing adequate insurance systems and/or other financial tools for rehabilitating the damaged sites and for compensating the victims of the accidents. • Beyond further inevitably necessary discussions, positive actions on behalf of the states are necessary: Let’s not wait for another accident to act!

13. Thank you for your attention and wish all of us fruitful discussions!