Responsibility And Liability For Transboundary Environmental Damage

This thesis will begin with an introduction to basic terms and concepts, particularly the term"transboundary environmental damage", then will mainly discusses the state responsibility and liability for transboundary environmental damage in international law. Due to the limitations of the states responsibility for transboundary environmental damage, this thesis suggests the development of civil liability regime will play a significant role as a tool for environmental protection.The thesis consists of five chapters. Chapter one mainly introduces the academic background and significance of the subject, the ways of selecting materials, the scope of the subject.Chapter two will begin with an introduction to basic terms and concepts, particularly the term"transboundary environmental damage". Given the great volume of legal materials and literature on international environmental law, this thesis concludes that the transboundary environmental damage can arise from a wide range of activities which are carried out in one country but inflict adverse effects in the territory or control areas of another or the areas beyond the limits of national jurisdiction. While all human activities having adverse effects might give rise to environmental damage, it is unlikely that all environmental damage results in legal liability and responsibility. There are no agreed international standards which establish a threshold for environmental damage which triggers liability and allows claims to be brought. State practice, decisions of international tribunals and the writings of jurists suggest that environmental damage must be'significant'or'substantial'for liability to be triggered. In defining environmental damage, scholars propose four conditions which must exist for environmental damage to fall within the definition of transboundary environmental damage. First, the damage must be a result of human activity; secondly, the damage must result from physical consequences of that human activity; thirdly, there must be transboundary effects; and fourthly, the damage must be significant or substantial. The general scope providing for liability and compensation evolves from a focus on damage to persons and to property through damage to the environment, damage to the environment itself. They include:⑴loss of life or personal injury;⑵loss of, or damage to, property;⑶loss or damage by impairment of the environment evolving the costs of reasonable measures of reinstatement of the environment and the costs of reasonable response measures.Chapter three mainly discusses the state responsibility and liability for transboundary environmental damage in international law. In conventional international law on the protection of the environment, there is currently only one treaty which falls completely addressing the question of liability, namely, the Convention on International Liability for Damage Caused by Space Objects of 1972. Another fairly treaty rule on responsibility is Article 139 of the 1982 Convention on the Law of Sea. Besides, one other Convention which seems to envisage the application of state liability is the Article 7 of the 1997 Convention of the Non-navigational Uses of International Watercourses. Most treaties include those in which a reference to liability has been made in the text without further clarification as to the substantive or procedural rules of liability."No-Harm Principle"is the fundamental principle in the customary international law concerning transboundary environmental damage. Under this principle, the states have a duty to prevent, reduce, and control pollution and environmental damage. In the past judicial decisions and state practice, there is only one case referred to state liability for transboundary environmental damage without any legal debates, namely, the Trail Smelter arbitration case. The applicable law of the claims for environmental damage in the practice of the UN Compensation Commission is Security Council resolution 687 and other relevant Security Council resolutions, the criteria established by the Governing Council, and any pertinent decisions of the Governing Council. The environmental claims before the Commission provide a rare and much needed example of institutionalized and systematic processing of such claims in the history of international claims resolution.Chapter four mainly focus on the allocation models of loss in the case of transboundary damage arising out of hazardous activities. Due to the limitations of the states responsibility for transboundary environmental damage, the International Law Commission (ILC) decided to codify a set of legal regime for the states liability in case of loss from transboundary environmental damage in 1978. After years of working, the ILC reviewed the work on this topic in 1997. It felt that the scope and content of the topic remained unclear due to such factors as conceptual and theoretical difficulties, appropriateness of the title and the relation of the subject to the topic of"state responsibility". It further observed that aspects of prevention and liability are distinct from one another, though related. It was recommended that they be studied separately. After finished the work on the subject of prevention, The ILC established a working group in 2002 to consider possible approaches to the study of the topic on liability. The working group recommended the ILC should better deal with the topic as allocation of loss among different actors involved on the operations of the hazardous activities. The focus on allocation of loss instead of the development of an international liability regime is well in tune with the emerging thinking on the subject which is focused on facilitating a more equitable and expeditious scheme of compensation to the victims of transboundary damage.Chapter five is to conclude the whole views of this thesis, and also put forward some suggestions to Chinese government for dealing with the problems of transboundary environmental damage which might occur in China.