| After the World War II, the rapid development of science and technology having satisfying the mankind’s growing demand, some unpredicted and irresolvable disasters come into being. Damage and loss brought to victims by transboundary oil pollution and nuclear leakage cannot be described in words. In face of the huge cross-border disasters, the victims not only have to face great loss of life or personal injury, loss of, or damage to, property, including property which forms part of the cultural heritage but also loss or damage by impairment, even destruction of the natural and social environment where they live. It is very difficult for the victims of transboundary damage to get prompt and adequate compensation for a long time. However, the victims may not be liable for the disasters caused by other people hazardous activities for their own profit. The international community has started to pay more attention to this scope of international law, and established some principles and rules to ensure prompt and adequate compensation for the victims of transboundary damage in some areas. Such principles and rules haven’t been used widely in the concerning parts of international law and they also needs to be further improved.In this dissertation, after discuss the concept of transboundary damage, its classifications and consequences, I will study the basic theoretical fields on the allocation of loss in the case of transboundary harm arising out of hazardous activities after indicating the concepts, characteristics, and nature of allocation of loss in the case of transboundary harm. This paper will discuss: the concept and its historical evolution of allocation system of loss in the case of transboundary harm; legal principles on allocation of loss in the case of transboundary harm; subject systems of allocation of loss in the case of transboundary harm. The whole dissertation is composed of the Introduction, the Main Body and the Conclusion. The Main Body of the dissertation constitutes 3 Chapters. On the basis of materials research and study, this dissertation strives to complete a high-quality dissertation by synthetically applying legal analysis, comparative analysis, case analysis, historical analysis, qualitative analysis, and interdisciplinary analysis methods.In the introduction, I will briefly introduce and analyze the legal and ethical foundation of allocation system of loss in the case of transboundary harm, the purpose of significance of the selection of the topic, the current study on this topic, the basic train of thoughts,and the innovation points of the dissertation.The allocation system of loss in the case of transboundary harm stems from but is different from the liability system of transboundary harm. It is the extension and development of the liability system of transboundary harm. Its legal basis is not to exercise correct justice but to ensure the distribution justice. It is necessary for a healthy and ordered society to have a fair system of distribution interests and an equitable system of loss allocation. Based on this ethical foundation, the allocation system of loss in the case of transboundary harm doesn’t deviate from the“polluters pay principle”, taking the prompt and adequate compensation to victims as the starting point, reversely design the multiple subjects to allocate the liability for damage and compensatory obligation. Not only the operator of the hazardous activities shall bear civil liability, but also the relevant beneficiaries or potential polluter, even under the particular circumstances, the original state shall share the loss caused by transboundary damage, to ensure the prompt and adequate compensation to the victims.Chapter one discusses the concept and its historical evolution of allocation system of loss in the case of transboundary harm. At the beginning of the first section, the research scope of this dissertation is defined as same as that of the topic about“allocation of loss in the case of transboundary harm”which the International Law Commission have discussed for many years. Transboundary damage means damage caused to persons, property or the environment in the territory or in other places under the jurisdiction or control of a State other than the State of origin. Then I will analyze the characteristics from the hazardous activities and the results of transboundary damage for further discuss the allocation system of loss multiple subjects for different hierarchies later. Due to the different subjects’mode of different allocation system of loss arising out of transbiundary harm, the different classifications of transboundary damage based on different standard should be applicable different principles and rules under the consideration of proper risk control and loss allocation mechanism. After the classification based on different objects, I indicate the various deficiencies and obstacles for protection of the common environment.In the section two, this dissertation analyzes and deduces the definition of allocation of loss in the case of transboundary damage, tier upon tier, from the study of the meaning of "loss", "allocation", " allocation of loss ".“Allocation of loss in the case of transboundary damage”refers that the“according to certain imputation principle and the different hierarchies for liability for cross-border damage operators or their civil partners, beneficiaries or potential polluters, even under some certain situations, the state of origin of the hazardous activities should allocate any loss of the transboundary damage, in order to ensure the victims to get prompt and adequate compensation”. The“allocation of loss in the case of transboundary damage”is not just a concept, but a mechanisms that includes both international law and national law, both substantive law and procedural law. In specific cross-border damage cases, it will also involve recognition and enforcement of decisions by foreign courts or awards of arbitration, or even involves judicial assistance to collect evidence, and so on. It is historically inevitable for the allocation system of loss in case of transboundary damage to emergence and to be improved and perfected. It has been gradually established with the progress of the human society, the continuous development of international law, and the more and more attention to the victims of transboundary damage. The emergence of the allocation system of loss in case of transboundary damage marks the formation of the new concept of justice and universal recognition in the whole international community. The new justice idea needs the justice both on distribution of interests and allocation of loss. It will be no help for the victims if we only emphasize polluter’s liability in case of transboundary damage.In the third section, this dissertation expounds the profile and the status quo of law-making on liability system in the case of transboundary damage in international law by burying myself in the International Law Commission’s materials concerning to this topic, reviewing and studying the relevant international judicial practice and existing international treaties and international environment soft law documents. In the contemporary international law, the allocation system of loss in case of transboundary damage has been established in the fields of liability systems for nuclear leakage and marine oil pollution. However, it should be popularized to other relevant field, such as liability system of outer space damage. Therefore, it is not a balanced development in different liability system for transboundary damage.Chapter two discusses the legal principles of allocation system of loss in case of transboundary damage. It is composed by three sections: The principle of victims of transboundary damage to get prompt and adequate compensation; the polluter pays principle; and the principle of state of origin to pay the supplementary damage and ensure the victims to get prompt and adequate compensation.The victims of transboundary damage means any natural or legal person or state or international organization in the territory of another state or in other areas which is not belong to any jurisdiction that suffers damage caused to persons, property or the environment in the territory or in other places under the jurisdiction or control of a State other than the State of origin. The“victims of transboundary damage”is also a historical concept because it has been changed and developed with the changing of view about some certain rights during that some certain rights are given up and other new rights are gradually developed and accepted.In respect to ensuring prompt and adequate compensation to victims of transboundary damage, "prompt" refers to the nature of real time. This is, to ensure the victims obtain the necessary compensation as soon as possible to restore their normal life. "Adequate" refers to the quantity and quality of compensation. Up to now, no international instrument hasn’t defined the concrete standards of the "prompt and adequate compensation", but some international document provides the minimum limit related to the "prompt and adequate compensation "which is commonly used as "if damage had not happened".The principle of victims to obtain prompt and adequate compensation must be based on strict liability. If no strict liability is applied, the compensation to the victims will be uncertainty, the state of origin will not the intended to conduct activities with sufficient risk assessment or“due diligence”, causing the risk of harmful consequences. Also, the burden of collect evidences causes the victims be unable to get prompt and adequate compensation in the case of transboundary damage. On the basis of application of the strict liability, the joint liability, liability limitation, insurance or other financial security as guarantee make the victims really get prompt and adequate compensation. The principle of victims to get prompt and adequate compensation as an important legal principle in the field of allocation system of loss in the case of transboundary damage has already recognized and accepted by international environment soft law documents and most international treaties concerning civil liability and responsibility for transboundary damage. In addition to the international treaties related to civil liability for nuclear damage, the concerned international treaties explicitly put the principle of prompt and adequate compensation in the preamble or the first article in the treaties. However, it is still a process of dynamic development, change and improvement although it has been accepted in some fields of liability system of transboundary damage. The "polluter pays principle" section firstly defines its legal connotation which refers that the polluter-pays principle first appears in 1972 in an OECD document on guiding principles for environmental policies which basically means that polluters should pay for the environmental damage they cause and that the government should not subsidize pollution. The allocation system of loss in the case of transboundary damage having not starting from the“principle of polluters pay”other than, in reverse thinking ways, designs how to ensure the victims to obtain“prompt and adequate compensation”. This reversely designed system does not deviate from the“polluters pay principle”but some adjust with it. The allocation system of loss in the case of transboundary damage require polluters bear the“affordable”part of loss other than all the loss for the victims.Taking the“polluter pays principle”as an important principle of the allocation system of loss in the case of transboundary damage has its extremely vital significance. Economically, the“polluter pays principle”promotes efficiency; legally, it promotes justice; it promotes harmonization of international environmental policies; it defines how to allocate costs in the case of transboundary damage. The“polluter pays principle”can promote operators, and state of origin to behave more responsible for their activities, better play in preventing environmental damage, avoid or reduce cross-border damage, and to ensure prompt and adequate compensation to victims of transboundary damage.The third section is about the principle of state of origin to pay the supplementary damage and ensure the victims to get prompt and adequate compensation.“State of origin”means the State in the territory or otherwise under the jurisdiction or control of which the hazardous activity is carried out. "In the territory" refers within the territorial limits of a state.“Under the jurisdiction or control”means that, (a) In relation to a coastal State, as extending to maritime areas insofar as the legal regime of any such area vested jurisdiction in that State in respect of any matter; (b) In relation to a State of registry, or flag State, of any ship, aircraft or space object, as extending to the ships, aircraft and space objects of that State while exercising a right of continuous passage or overflight through the maritime territory or airspace of any other State; (c) In relation to the use or enjoyment of any area beyond the limits of national jurisdiction, as extending to any matter in respect of which a right was exercised or an interest asserted, appointed in the“first report on prevention of transboundary damage from hazardous activities”by Pemmaraju Sreenivasa Rao, Special Rapporteur. There are two classifications for the state of origin in the case of transboundary arising out of hazardous activities: the primacy entire responsibility and the secondary supplementary liability. The most representative of primacy entire responsibility is the liability and responsibility of launching states for damage from outer space activities. The secondary supplementary liability refers to the limit liability defined in some certain international treaties as a fund to pay the victims. The responsibility or the liability of the state of origin has the nature of supplement and guarantee.There are some aspects for legal foundation of the nature of supplement and guarantee of the responsibility or the liability of the state of origin. Firstly, the activities causing tranboundary damage are not international wrongful acts. Secondly, the“polluters pay principle”is one reason for the state of origin to bear a part of compensation. Thirdly, beneficiaries should allocate some loss for their own interests. The principle of state environmental sovereignty without harm to foreign environmental rights is the international law basis of the nature of guarantee of the responsibility or liability of state of origin. States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. This principle belongs to jus cogens in international law.The chapter 3, "the subject’s model of the allocation system of loss in the case of transboundary damage”is divided into four sections. The first section discusses the scope and models of the subjects of allocation of loss in the transboundary damage. This section defines the concepts of single level subjects and multiple levels subjects based on study the theory concerned with subjects in civil law and tort law. The system of multiple level subjects is that the subjects of different levels are only liable for limited compensation to victims according to legal regulations or compensatory obligations defined in treaties or agreements. The subjects of allocation of loss in the case of transboundary damage include victims, operators, beneficiaries and state of origin under some specific circumstances. Because of the scope of this study, I will not talk more about victims’obligations. This section analyzes the evolution of the system of multiple level subjects to allocate the loss in the case of transboundary damage. At the beginning of the Trail Smelter case, on February 28, 1931, the International Joint Commission found and determined that:”All past damages and all damages up to and including the first day of January 1932, is the sum of $350,000.…Upon the complaint of any persons claiming to have suffered damage by the operations of the company after the first of January, 1932, it is recommended by the Commission that in the event of any such claim not being adjusted by the company within a reasonable time, the government of the United States and Canada shall determine the amount of such damage, if any, and the amount so fixed shall be paid by the company forthwith.”This is the prototype of allocation of loss in the case of transboundary damage.The allocation system of loss in the case of transboundary damage by multiple levels subjects started from international treaties related to nuclear damage. However, the allocation system of loss in the case of marine oil pollution is the more perfect that in the field of nuclear leakage. The series international documents including the“International Convention on Civil Liability for Oil Pollution Damage 1969”and its later amended protocols, and the“International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971”and its later amended protocols. Now, the allocation systems of loss in the case of oil pollution and nuclear leakage are the two representatives with their own respective characteristics. The most two differences between the two systems are as follows: The first is the way of law-making as the allocation system of loss in the case of marine oil pollution based on two sets of international treaties but in one treaty for nuclear leakage. The second is the function of state of origin. In the allocation system of loss in the case of marine oil pollution, the state of origin is not the subject to allocate loss as the same as that in the field of nuclear leakage.The second and the third sections separately elaborates the details about operators and other secondary subjects to share the loss in the case of transboundary damage, including the conditions, limitations,exceptions, insurance, and other guarantees. The last section specially discusses the rules and regulations concerning the allocation system of loss in the case of transboundary. According to international law, state of origin should ensure activities in its territory or under its jurisdiction or control do not harm foreign rights. Each state of origin should take all necessary measures to ensure that prompt and adequate compensation is available for victims of transboundary damage. Secondly, upon the occurrence of transboundary damage, the State of origin shall promptly notify all States affected or likely to be affected of the incident and the possible effects of the transboundary damage; the State of origin shall ensure that appropriate response measures are taken and should, for this purpose, rely upon the best available scientific data and technology; the State of origin, as appropriate, should also consult with and seek the cooperation of all States affected or likely to be affected to mitigate the effects of damage and if possible eliminate them; the States concerned should, where appropriate, seek the assistance of competent international organizations and other States on mutually acceptable terms and conditions. In addition, according to some international treaties, state of origin is liable for supplementary compensatory obligation even if the state of origin is neither the operator nor the secondary subject. This is the international liability of state of origin although they are taken as acts of "responsible state" or appear as“humanitarian aid”.Having summarized the main points of the text, the conclusion further points out that the allocation system of loss in the case of transboundary damage is still in the process of development and improvement. National and international community still needs to do more work on it. It is national general obligation for a state of origin to have“responsibility of state”for transboundary damage, but often involveing many uncertain factors. However, the civil compensation obligation of state of origin is more specific, determined by international treaties, by which the victims can obtain compensation easily. Therefore, in order to improve the allocation system of loss in the case of transboundary damage, national and international community should be dedicated to the study and develop international law on determined compensatory obligation of state of origin to ensure the victims of transboundary damage to obtain“prompt and adequate compensation”. |
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