| Environmental infringement of international watercourses and its related legal issues arehot issues studied in the international law field. As China’s economy grows rapidly andopening to the outside world deepens, especially further acceleration of opening to anddevelopment of the surroundings, China, being located upstream of several internationalrivers, has triggered numerous international disputes due to its development activitiesupstream the rivers in recent years and also aroused widespread international attention.However, focusing on legal issues about liability in environmental infringement ofinternational watercourses is rarely mentioned. From perspectives of InternationalEnvironmental Law, Public International Law, Private International Law, Civil and BusinessLaw, economic law, economics and system science, this paper analyses legal issues aboutliability in environmental infringement of international watercourses through method ofcomparative analysis, empirical analysis method and system analysis method etc. Discussionis made in six parts in this paper:In the first part, problems existing in the field is refined through longitudinal andtransverse comparative research of related regulations on liability in environmentalinfringement of international watercourses in current international law, internationalenvironmental law and international water law, the author believes that: core of main contentsabout the environmental infringement of international watercourses is changing gradually,from navigation usage to non-navigation usage, from concerning development and utilizationonly to paying attention to protection of watercourse environment, from insisting totallyindependent sovereignty to open international cooperation; basic principles such as reasonableand fair use, no damage to other countries’ interests and interests communities etc. are formedgradually in international water law. Based on overall ecological property of the internationalwatercourses and through overall management of the basins by basin management agencies,basic consensus has been achieved among international basins; meanwhile, in currentinternational law, incompetence of individuals for civil power in liability system ofenvironmental infringement and insufficient guarantee of rights and interests for individualsetc. exist; different damage criterion for environmental infringement of internationalwatercourses is also a legal impediment in determination of liability in environmental infringement of international watercourses; both the competition of cooperation oninternational watercourses expressed by several countries and authority lacked for“super-state” judicial decision institutions are significant issues to be solved for establishmentof liability system for environmental infringement of international watercourses.In the second part, it firstly studies heterogeneity of responsibility law system forenvironmental infringement of international watercourses based on clarification of relatedconcepts such as international watercourses, environmental infringement of internationalwatercourses and liability in infringement etc. The paper proposes closed concepts includingprivate law for subject of liability in environmental infringement of international watercourses,liability limitation and liability system for the first time, making heterogeneity judgment onthe legal system of international watercourses from different perspectives. It is believed in thispaper that heterogeneity element is a legal element naturally existed for national watercourseswhich cannot be selected or discarded artificially through legal arrangement; internationalwatercourses is complete ecological system, which is the core foundation to develop legalsystem of international watercourses environment; subject privatization of liability inenvironmental infringement of international watercourses is not only reflected in a mannerthat both the state and individuals are legal subjects in legal system of internationalwatercourses environment, but it also means that in the legal system, property andundertaking of the state liability change dynamically, whereupon instead of liability enjoyingsovereign immunity in a high rack in sense of public law, the state liability is civil liability inwhich compensation for damage and repair of damaged environment are undertaken inenvironmental infringement cases of international watercourses just the same as individualsubjects. Limitation of liability in environmental infringement cases of internationalwatercourses means the conditions under which rules are not defined clearly in norms ofinternational law and liability undertaking is ineffective; meanwhile, it also indicatesinefficiency in environmental post relief and end treatment after damage occurs towatercourse environment. Closure of the liability system for environmental infringement ofinternational watercourses is the key to heterogeneity of the legal system; by decomposingecological system of international watercourses, this paper abstracts closed nature (i.e.generality) of subsystems including regional space, basin civilization and legal relation etc. ofinternational watercourses; cultural homogeneity of historical basin civilization is the valueand ethical base to develop regional legal system of national watercourses; neighboring relation of adjacent international watercourse countries makes status and legal rights andobligations of the parties solidified, deriving their common interest expression, forming aninterests community among those watercourse countries. Such legal relation formssubsystems of the international watercourse environment system, the whole system and itssubstructures influence each other, which promotes formation and improvement of the legalsystem for environmental infringement of international watercourses.The third part of this paper systematically analyses two basic elements forming liabilityin environmental infringement of international watercourses: infringement act and relatedissues resulted from damage outcome. It is believed in the paper that both water pollution anddamage of water body ecological environment are environmental infringement ofinternational watercourses, which is characterized as below in infringement legal system: thestate has an equal status with individuals in terms of subjects of private law; the infringementhas the same causes; the actors communicate with each other using water as medium, rightsand liability joint with each other; the infringement in characterized by indirection, latencyand complexity. Inner mechanism of international watercourses pollution is reflected as closerelation in environmental benefits of the countries upstream and downstream, overlappedpollution consequences, mutual transformation of ecological systems within the watercoursesand cross-border effects of adjacent countries along the bank. It is believed in the paper thatthe other important part in environmental infringement of international watercourses isecological damage behavior. Construction of hydroelectric dams upstream, which wasopposed by many countries downstream for reasons of massive migration, damage to aquatichydrological system, hidden danger in seismology and geology, climate change as well aslocal water crisis, has caused damage to ecological system of the whole basin. Objectiveoutcome of environmental damage to international watercourses includes person, property,spiritual and environmental damages. The paper innovatively proposes the intersectionrelationship among facts of environmental damage, proved facts and legal facts, and makesdialectic analysis about the route to demonstrate objective facts of environmental damage andlegal facts based on artificiality, measurability, cross boundary, severity, diversity andrelevance. Based on several uncertainty factors which would be brought to ecological damageby environmental damage, three quantitative principles to determine environmental damageof international watercourses are suggested in this paper: combination of present and longterm, combination of visible and invisible damage and combination of objective damage and legal regulations. In addition, by referring to metering methods used for oil pollution damagefund of20billion U.S. dollar in Gulf of Mexico, USA, methods to classify and measureenvironmental damage in stages are proposed.In the fourth part, the author suggests cause-and-effect transmigration in ecologicalsystem of international watercourses environment by combing current theories in causalrelationship of environmental infringement at home and abroad; and causal relationship in thisfield is characterized by objective coexistence, reciprocal causation and indirect causality. Italso makes comparative analysis to current related theories in causal relationship inAnglo-American law system, continental law system and in our country. Regardingpresumption of causal relationship in environmental infringement, three international theoriesare available for borrowing: theory of probability (evidence of preponderance and theory offact presumption), theory of empirical rule (theories of indirect counterevidence andpresumption) and theory of epidemiology causality. This part also discusses that inenvironmental infringement of international watercourses, neighboring relationship(neighboring right and right of way) among countries along the watercourses andenvironmental fiduciary responsibility of the state are important natural factors and legalfactors for legal liability. This part analyzes excuse for non-responsibility through fourelements including force majeure, deliberate action of victims, fault of the third part and fullperformance of actions regulated by national law, and suggests that causal responsibility bedistributed in phases and in detail in case of mixture of force majeure and human factors,subjective fault and mistake (carelessness) of victims, and vicarious liability of personalaction and state liability during full execution of national law, only by doing this can thedamage to international watercourses environment be repaired. It suggests that expert witnessintervene in demonstration of causal relationship in damage of international watercoursesecological system to solve the problem in insufficient knowledge of the judges and the partiesin potential damage of watercourse environment.The fifth part of the paper analyzes liability fixation issues about environmentalinfringement of international watercourses by analyzing liability fixation issues of the stateand individuals based on “fault”. Based on traditional rule of liability fixation forinfringement, the author suggests a multi-dimensional and comprehensive system of liabilityfixation focusing on strict liability principle and pay attention to other liabilities inenvironmental infringement of international watercourses field. At the same time, considering coexistence of fault and no fault in environmental infringement of international watercourses,"fault" should also be considered liability fixation so that actors with fault should assumemore severe punitive infringement liability. Faults of the state and individuals are different inpresence in law sector, action and inaction faults of the state is mainly reflected as breach of"proper duty of attention" regulated by international law or national law and it is the basis forobjective judgment of state fault. Further more, liability fixation judgment on visible pollution,invisible pollution and joint infringement is also necessary in environmental infringement ofinternational watercourses. Generally, regarding visible pollution, a comprehensive liabilityfixation system is formed with supplement of action and inaction liability as well as fairliability. For invisible pollution, no-fault liability principle is taken as main principle forliability fixation with fair principle as the second in general. However, in case of jointinfringement in international watercourses environment, the joint infringer should bedifferentiated in terms of internal and external relationships. This paper argues that the jointinfringer is in overall legal relationship outside and its liability fixation should be conductedin line with strict liability principles, while it should share damage liability based on fairnessprinciple inside.The sixth part of the paper analyzes legal extent of compensation, applicable law,socialized relief and related issues for environmental infringement damage of internationalwatercourses. The author does not think all objective damage facts in internationalwatercourses environment could be written in scope of legal protection. The state andindividuals has different legal kernel in terms of personal and property rights with spiritdamage and other objective damage cannot be measured limited in current system. The authorproposes, based on the irreversibility of environmental damage, whether the potentiallydamaged parties are entitled to request to cease the infringing act upon finding watercourseenvironmental damage, so as to prevent environmental damage in advance to the largestextent. The paper makes comparative analysis about issues of law application inenvironmental infringement of international watercourses, making separate comments onthose issues from the perspectives of uniform substantive law and adjustment of conflict rules,including determination of competent courts, jurisdiction of parallel litigations and relatedlitigations, issues of applicable law, conflicts between convention and national law as well asother bilateral or multilateral treaties. The paper suggests entitle victims with more optionsand the victim select most favorable law to claim their rights based on "The Doctrine of the Most Significant Relationship". For assumption of joint infringement liability in internationalwatercourses environment, the international practice is that the actor should assume jointliability in general, however, in America, Japan etc., for partial actions with small causal forceand separable damage consequences, proportional liability assumption is also used forsupplementation. Socialized relief for environmental infringement of internationalwatercourses is an effective supplementary method for the individuals to assumeenvironmental liability, and environmental liability insurance, environmental compensationfund and environment tax etc. are effective methods to share environmental damage adoptedinternationally, all of those can be borrowed for disputes in international watercourses in ourcountry.Regarding shortage of socialized relief mode in environmental infringement ofinternational watercourses, based on above research, the author innovatively makes theproposition to set a regional international water company to solve problems such as uncleartrans-boundary water rights and environmental hazards etc. It’s suggested to take theproportion of water area under the state sovereignty accounting in the internationalwatercourse basin as the basis to verify stock equity of water companies. Main functions ofthe water companies are to enjoy economic benefits resulted from navigation andnon-navigation use of international watercourses, perform real-time monitoring andmaintenance to watercourse environment and give immediate relief to victims inenvironmental accidents. The regional international water companies can be established bycurrent basin management committee when the time is right and carry out activities in thename of forums or cooperating agencies.Main innovative points throughout the paper include:Ⅰ. Heterogeneity concept and its connotation regarding liability in environmentalinfringement of international watercourses are presented, and system description is providedfrom multiple perspectives and levels from the law level;Ⅱ. It is cleared specified that both water pollution and water body ecological damage areenvironmental infringement acts of international watercourses, it is believed that constructionof hydroelectric dams upstream has caused damage to ecological system of the whole basin,and massive migration, damage to aquatic hydrological system, hidden danger in seismologyand geology, climate change as well as local water crisis are actions damaging water bodyecological environment; Ⅲ. It puts forward three quantitative principles for environmental damage ofinternational watercourses: combination of present and long term, combination of visible andinvisible damage and combination of objective damage and legal regulations. In addition, byreferring to metering methods used for oil pollution damage fund of20billion U.S. dollar inGulf of Mexico, USA, methods to classify and measure environmental damage in stages areproposed.Ⅳ. The regional international water companies can be established by current basinmanagement committee when the time is right and carry out activities in the name of forumsor cooperating agencies. |
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