Marine Environmental Damage: The Compensability of Ecosystem Service Loss in International Law

Key maritime conventions governing liability and compensation for pollution of the marine environment, foremost among them the 1992 Civil Liability for Oil Pollution Convention and the 2003 Supplementary Fund Protocol (the CLC/Fund regime), exclude compensation for pure environmental loss. This article discusses whether anything less than full compensation of damage to the marine environment, including the loss of ecosystem services, comports with contemporary international public policy or law. After reviewing and rejecting traditional arguments opposing such compensability, the article contrasts the CLC/Fund regime's environmental claims practice with emerging trends in decision on the international legal plane and in select domestic legal systems, all of which support full compensation. The article thus concludes that an adjustment of the CLC/Fund regime's environmental claims approach is desirable to align it with this international (and national) practice and thereby to protect the long-term integrity of the regime itself.