On International Environment Liability

In international environment law, the environment liability experiences the transforming from state liability to civil liability .The author proposes that the civil liability will replace the state liability in future through discussing this kind of transforming process in international treaty and practice. The focus of the article is on the demonstration of the theoretical process. The environment liability in international environment law includes three types: General state responsibility( the nation should response for breaching the international law) is implemented according to the liability law. The liability system;( some damaging consequences arising from activities not prohibited by law but from those which have heavy injurious to environment is discharged depending not on the state liability but on the liability system basing on treaties.) Civil liability, allocating the liability and loss to the operator whose act resulted in damaging the environment (This liability system starts to transform from state liability to civil liability). In addition, in many different environmental protections, the ways are usually not reactive or compensating but preventive. This kind of preventive measure does not belong to the category of the environment liability but it's vital for resolving the environment liability and the environment problems. Around this topic, this article illustrates this topic through four-part: The first part describes the developing process of the international environment liability, which is divided into three stages: from 1978 to 1985,stage of giving priority to state liability; from 1985 to 1996,stag of depending on the corporation of the preventive method and remedy method. From 1997 up to now: the stage of regarding the civil liability as principle ways. In the first stage the International Law Commission appointed Mr. Robert Quentin Quentin-Baxter as the first rapporteur to deal with the topic of international liability. In 1978,he suggested we should include a duty to develop not only principles of prevention as part of a duty of due and reasonable care but also an adequate and accepted regime of compensation as a reflection of the application of equitable principles and if appropriately, the precise rules of strict liability could take place of general obligations .In the Second stage, Mr.Julio Barbosa was appointed as the rapporteur, the International Law Commission passed the 1996 draft article "international liability for injurious consequences arising from activities not prohibited by international law". However neither of these two stages got away from taking state liability as to predominate. In the third stage Mr Demmaraju Sreenivasa Rao was appointed as the third rapporteur, he focused on state liability and took strict liability as the foundation of international liability which was a"case of misplaced emphasis."and suggested focus on allocation of loss, all these indicate that the environment liability is transforming from state liability to civil liability. The second part demonstrates state liability and its foundation of the international environment liability, state liability has deficiency in practice, because states have preferred to avoid the law of state responsibility, but to rely on other methods of establishing liability using national law. Considering taking fault liability and strict liability as Foundations of the states to undertake the responsibility can't resolve the environment problem successfully. Though the strict liability can be applicable to the environment liability, in the international environment law it can't applicable to most environment damage cases and becoming a general principle. So the author's attitude to the state liability is negative and suggest the deficiency of the stateliability can be make up by the civil liability. Part three analysises the civil liability and its theory foundation of the international environment liability. The core of the civil liability is fair principle, standing to sue is based on nuisance, trespass, negligence the strict liability, and the doctrine of public trust etc…The problem of causation, discharge of duty of care, definition of damage and compensation, are all important problems, the civil liability can deal with them nicely. But to the undertaking of civil liability, the basis of the litigation, litigation of corpus, jurisdiction, restitution and compensation are all important. Affirmed that "damage to environment per se or natural resource", "repetition and future conduct", "breach of treaty", are very important in protecting the environment, and "measure damage ","preventive remedy"also have the count for much meaning to undertaking environment responsibility. Part four discuss the models of allocation of loss, this is the core problem of the environment liability. from the oil pollution damage and other relatively treaties which deal with allocation loss as a beginning, the author sum-up their common features and deficiency ,they all think that "state liability"is an exception( only exist in the outer space activities), undertaking the civil liability by private one is just the most valid way; the liability in the case of stationery operations should been channeled; In the case of ships it is challenged to the owner, not the operator. The shortage of these modes have: The scheme of limited liability can not providing sufficient incentive to the operator to take stricter measures of prevention; Concerning the activities in Antarctic result to injure, the related negotiation is under way, but have not some fruit; A lot of losses in some treaties include not the damage to environment per se and some can't calculated .The author set up a model of...