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The International Responsibility And Liability Regime Of Transboundary Environmental Damage

Posted on:2008-04-20Degree:DoctorType:Dissertation
Country:ChinaCandidate:H G YangFull Text:PDF
GTID:1116360242476074Subject:Constitution and Administrative Law
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Nowadays, transboundary environmental damage has been a very important matter to the international community. The international practice in this aspect developed greatly in the past years, but the international responsibility and liability for the transboundary environmental damage was developed slowly. It is due mainly to theoretical indistinctness and fuzziness of international responsibility and liability. And the overriding theoretical problem need to consider, analyze and question is the international responsibility and liability regime of transboundary environmental damage.Traditionally, the international responsibility and liability regime of transboundary environmental damage included three kinds of responsibility or liability-state responsibility, state liability and international civil liability.The traditional state responsibility for transboundary environmental damage was modeled on the Trail Smelter case. It was based on two factors: the obligation not to harm the environment of other states and the attribution of the private activity to the state. And it means the state should be responsible for the harm posed by the private persons within its territory or under its control.The traditional state liability for transboundary environmental damage is based on the topic of the United Nations International Law Commission"international liability for injurious consequences arising out of acts not prohibited by international law"and the Convention on International Liability for Damage Caused by Space Objects. It means the state should be liable for injurious consequences arising out of acts not prohibited by international law. The traditional international civil liability for transboundary environmental damage means the operators should be liable for compensation to the harm caused by several dangerous activities which were regulated by the special treaties.However, this traditional international responsibility and liability regime of transboundary environmental damage has many problems. As for the traditional state responsibility for transboundary environmental damage, the Trail Smelter case is not a good model. The case has many procedure flaws and it was not followed by the international community. The obligation not to harm the environment of other states is not a real obligation in the customary international law. It is just a sub-principle of National Sovereignty Principle. And the attribution of the private activity to the state is also not correct. In international law, State usual not take responsibility for the private activities if the state have fulfilled its due diligence.As for the traditional state liability for transboundary environmental damage, the topic of the United Nations International Law Commission -international liability for injurious consequences arising out of acts not prohibited by international law and the Convention on International Liability for Damage Caused by Space Objects contrarily proved the illogicality of the state liability. For example, the results of the topic of the United Nations International Law Commission-international liability for injurious consequences arising out of acts not prohibited by international law were two documents: Prevention of Transboundary Damage from Hazardous Activities and Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities. But the provisions of Prevention of Transboundary Damage from Hazardous Activities are all about the prevention obligation of the state in transboundary environmental damage which is the primary rules of state responsibility. And Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities are all about the international civil liability. Convention on International Liability for Damage Caused by Space Objects,which is another theoretical basis of the state liability of transboundary environmental damage, is a manifestation of political intention, rather than demonstration of compensation responsibility, therefore failed to be evidenced and supported by international practice.As for the traditional international civil liability for transboundary environmental damage, the liability for the serious hazard activities prescribed by the international treaties, is just a particular part of international civil liability,not the whole of it. Therefore, the traditional standpoint is not comprehensive.So, we think the new international responsibility and liability regime of transboundary environmental damage should comprise two kinds of responsibility-- state responsibility and international civil liability, which represent respectively responsibility of international law and of private international law,which complement each other without incompatibility and then constitute a whole(integrated) responsibility and liability regime. At the same time, the state responsibility and international civil liability comprised by the new responsibility and liability regime differs from that comprised by traditional responsibility and liability regime.The state responsibility of transboundary environmental damage,based on Prevention of Transboundary Damage from Hazardous Activities and Responsibility of States for Internationally Wrongful Acts of the International Law Commission, refers to national responsibility of transboundary environmental damage that is produced within the confines of national command, arising from the nonfulfillment of corresponding obligation of prevention prescribed by international law. And international civil liability of transboundary environmental damage,based on Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities of the International Law Commission, comprises international civil liability of general transboundary environmental damage and that of particular transboundary environmental damage.And the international civil liability of particular transboundary environmental damage refers to the responsibility bore by operator according to the international treaty which covers the damage caused by peace utilization of atomic facilities, pollution of ocean petroleum, transboundary transfer of waste as well as transportation of hazardous substance,and etc. The international civil liability of general transboundary environmental damage refers to the responsibility bore by operator according to the national conflicts law. In order to compensate victims immediately and sufficiently, the ideal international civil liability of transboundary environmental damage should be based on Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities of the International Law Commission, and therefore establish an unification of mechanism.
Keywords/Search Tags:Transboundary Environmental Damage, State Responsibility, State Liability, International Civil Liability
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