Pollution, Takings and Access to Justice in East and West

Summary

INTRODUCTION

An important question of land rights relates to traditional conflicts which could arise as a result of conflicting uses of land rights. Those types of simple conflicts can arise both in the East and in the West. In some cases, it relates to simple cases of nuisance whereby one neighbour would for instance create a fire in his garden as a result of which the neighbour experiences a nuisance. These types of relatively simple conflicting uses of property rights have always arisen and have in the legal system often been addressed via nuisance law. These types of conflicts between neighbouring properties (and thus neighbouring land rights) have, since industrialization, become slightly more complex and have appeared in different forms. One form is that as a result of economic development more land was needed e.g. for industrial development of land, resulting in particular cases in so-called ‘takings’. Those takings have, from an economic perspective, often been justified by the fact that the collective (public) interest would have to receive priority over individual interest. The typical example is a farmer who has to give up his farm land because a school has to be constructed. Human rights have accompanied this process, for example by guaranteeing that no takings without appropriate compensation will take place. Moreover, in recent times more debate has taken place on the necessity of the infrastructural works themselves and in some cases either land owners or NGOs have successfully used their access to justice to fight particular development plans; in some cases arguing that they would not be in the public interest. A complicating factor, especially in developing countries, is that those development projects are often not only in the public interest, but also in the private interest of particular developers. Close connections between the developers and particular politicians may, moreover, seduce bureaucrats or politicians to takings, also in circumstances where it is not obvious that the particular project is in the public interest.

Other types of conflicting uses of property rights have also arisen as a result of polluting activities. Again, the law has – with changing degrees of success – intervened to award access to justice to victims of pollution and forcing polluters to internalize externalities, i.e. reduce the negative effects of their activities to optimal levels.