Study On The Civil Liability For Transboundary Environmental Damage

Before the conventions related to civil liability resulting from transboundary environmental damage were issued, the compensation for transboundary environmental damage was based on the doctrine of state responsibility or state liability. With the growth of transboundary environmental damage cases caused by private actors, the liability for transboundary environmental damage presents a new trend. Although the international environmental law imposes binding obligations on states and non-state actors to conform to specified norms of behaviour, the states are not willing to accept the liability provisions which directly imposed on them. In order to reflect the principle of"polluter pays", the international community had drafted great amount of civil liability treaties in the field of oil and nuclear damage, at the same time, the domestic law related to environment damage also developed quickly. Through a comparative analysis, the civil liability regime shows the advantages in disposing transboundary environmental damage, therefore, this article advocates adopting civil liability regime where the transboundary environmental damage is caused by private actors. Under this liability regime, the private actors take the primary responsibility, but it will not exclude the states’liability or obligations. At the same time, this article is also trying to perfect the existing civil liability regime, and expecting to make it beneficial to establish liability regime of transboundary environmental damage.Except for conclusion, this paper is divided into four chapters.The introduction mainly introduces the research background, research ideas and research status of the paper. For the situations of transboundary environmental damage are so complex, we can’t cover all the situations, hence, this paper develops a much common and typical model from the situations of transboundary environmental damage. The presumptive model is that:A private actor a who locates in the territory of state A not only causes damage the environment of state B. but also causes personal or property damage of citizens of a. b. c who locate in state B, under this situation, the situations of damaging the global commons and states’or their representative organizations’transboundary environmental damage are excluded. In the part of main research contents, this paper firstly analyses the connotation of transboundary environmental damage based on three factors——"transboundary""environment" and"damage" according to the existing international or regional conversations. At the same time, this paper also distinguishes the content of state responsibility, state liability and civil liability. In order to provide convenience for the following research, we propose that the liability regime of transboundary environmental damage should comprise tow kinds of liability——state liability or responsibility and civil liability, the former is the liability under the international law while the latter is the liability under the private international law.The Chapter Two mainly discusses about the method and the history of earlier liability for transboundary environmental damage, and tries to argue the rationality of states’ liability for private actors’ transboundary environmental damage, otherwise, we also analysis the shortcoming of state liability or responsibility which makes a fundament of civil liability Researching. Through analyzing the origin and development of state liability, we conclude that the state responsibility or liability was the only expression form of international environment law before the civil liability conventions were drafted. When transboundary environmental damage occurred, the compersation liability for victims was based on the claim between state and state, the victims couldn’t rely on the international law regime to hold the accountable private actor or the states liable for their acts. So, the state liability or responsibility has the characteristics of "criminal law" and "civil law". The liability regime of states liable for private actors is questioned by scholars, under the background of early time, it is recognized by international custom law and domestic law. On the other hand, we should pay attention that the cases of state bearing liability under the international law are so rare, state liability or responsibility regime is facing much difficult. The result of states’ unwilling to bear the liability is that the liability for transboundary environmental damage is from states to private actors, and from international law to domestic law, while the state liability or responsibility becomes the subsidiary liability.The Chapter Three mainly introduces the existing civil liability regime for transboundary environmental damages. This chapter firstly introduces the development of civil liability, we conclude that the primary mark of civil liability regime for transboundary environmental damages is that a series of international civil liability convention in special area were drafted. Through comparing and analyzing the civil liability and state liability, we think that the civil liability regime for transboundary environmental damages is necessary and feasible not only be concerned from environment protection but also from the theoretical level. Then, we compare and analyze the conventions, provision and practice between unified substantive law and national substantive law related to civil liability of transboundary environmental damages. We argue that both of them have advantages and disadvantages in disposing transboundary environmental damages, so, we should harmonize international law and domestic law. The remedy way of civil liability for transboundary environmental damages is trough the proceeding of private international law, therefore, we inevitably discuss about the three classical problems of private international law——choice of law, choice of jurisdiction and the acknowledgement and enforcement of foreign judgment. Although there are special treaties ruling the questions above, it stills has a lot of obstacles in practice, so. the judicial assistance agreements between states in solving the choice of law and the acknowledgement and enforcement of foreign judgment are praise highly by scholars.The Chapter Four mainly puts forward some suggestions to perfect the exiting civil liability regime. According to Allan Rosas’s ideas of liability regime, we suggest that the civil liability regime for transboundary environmental damages should be divided into five situations——pure civil liability regime:civil liability regime. with residual obligation for states to ensure the payment of compensation; civil liability regime, with obligation foe sates to pay a part of the compensation out of public funds; civil liability regime, with the obligation for states to make contributions to an international compensation fund; civil liability regime, with residual state liability. In order to harmonize the environment law with the tort law. we suggest that the damage to environment and the damage to person or property should dispose in two difference ways. For the former. it can be solved through state agencies to institute legal proceedings under international law. For the latter. it can be solved under private international law by the victims.