Study On State Responsibility And Civil Liability For Transboundary Environmental Damage

Increasing cases of transboundary environmental damage can be found, unfortunately,around the world with the development of industrialization, often catastrophic in theirconsequences. This thesis is devoted to an analysis of systems used to settleenvironmental damage disputes with the aim of avoiding environmental damages andprotecting the environmental in a more effective way. Then due to the limitation of thestate responsibility for transboundary damage, the thesis suggests that the basic toolsfor environmental damage settlement lie in the improvement of the civil liabilityregime and the advocation of both regulation and liability system.The thesis consists of five chapters. The introduction part describes the background ofthis study and the approach of analysis it takes. Chapter one briefly introduces thegeneral issue relating with the transboundary environmental damage, such as theterms, concepts, features, the emergence and current picture of transboundaryenvironmental damage. The whole study will be conducted under this framework.Chapter two mainly is devoted to the state responsibility for transboundaryenvironmental damage from the perspective of international law. Under the traditionalregime on the state responsibility, the main subject matter under protection used to beforeign nationals and their property. Eventually, the compensation mechanism fortransboundary environmental damage was introduced into the system of stateresponsibility system through the international practice of the states and the efforts ofUN International Law Commission (ILC); a case in point is the conclusion of Convention on International Liability for Damage Caused by Spaces Objects of 1972.Certain differences could be found from the study made on nature, formality andcharacteristics of the state liability for transboundary environmental damage, takingthe relevant drafts by ILC into consideration. Meanwhile, in international practicelevel, the analysis over three cases, namely Trail Smelter Arbitration, Disintegrationof Cosmos 954, Compensation for losses and damage suffered as a direct result ofIraq's unlawful invasion, illustrates that there exists inadequate within the currentmechanism of state responsibility for the protection of cross-board environment. Suchinadequacy provides room for the development of civil liability regime.Chapter three emphasizes on the operation of the mechanism of civil liability fortransboundary environmental damage in both legislation and practice. From the viewof legislation, civil liability is widely adopted in both the national legal system and inmany international conventions as well, such as the conventions on nuclear damage,oil pollution damage, transfer of nuclear materials and so on. The significance of civilliability regime is further stressed in both the White Paper issued by EC and ILC'sdraft paper on allocation of loss in the case of transboundary damage resulting fromdangerous activities. Accordingly, detail analysis is given on the effectiveness/feasibility of three issues under the regime of civil liability, namely, access to justice,comparison between strict liability and fault liability, insurance and alternatives forenvironmental damage. It should be noted that although the mechanism of civilliability can act as gap filler to the international liability, it still works with theassistance of some other systems in regard to compensation.Conclusion is drawn in the last Chapter, which contains two parts; the first partconcludes with the comparison study elaborated in the former chapters. The authorpoints out both regulation and liability shall be underlined to solve the issue of"timely and adequate compensation"in the transboundary environmental damagesand achieve the ultimate aim of environmental protection in an effective way, due tothe complexity of the environmental damage. So regulation should work hand in handwith civil liability. Regulator should set minimum safety standards for theenvironmental protection, taking into consideration the developments of insurance, funds and liability. In the second part, recommendations are put forward for China inits future response to the issue of transboundary environmental damage based onChinese current circumstances by taking the international background intoconsideration.