On The Subject Of Liability Mechanism For Trans-boundary Environmental Damages

Pollution respects no borders. Pollution doesn’t recognize nation states, nor does it cares about territorial sovereignty. Combined with the public’s concern over shared resources and the environment, the issue of trans-boundary damages has become increasingly acute and apparent. Due to theoretical indistinctness and fuzziness of international responsibility and liability, the liability mechanism of trans-boundary environmental damages are highly complicated and thus deserve our further discussion. The author is acutely aware that full compensation for the victims suffering from trans-boundary environmental damages and the protection of global environment are always the ultimate concern. Keeping that in mind, the author aims at finding a thorough and operable pattern for solving trans-boundary environmental damages. This article is divided into five parts. In the first part, the author traces back the theoretical development of the term "trans-boundary environmental damage". In the second part, the author takes a step further by introducing the traditional liability regime of trans-boundary environmental damages. In the following part, the author gives his own comment on the existing three kinds of liabilities, namely state liability, international responsibility and civil liability. The author finds that the topic drafted by the United Nations International Law Commission, International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law", has approved that international responsibility for trans-boundary environmental damages does not exist. Based on the aforementioned finding, the author comes up with a new dual liability mechanism, which includes state liability and civil liability. The existing practice has approved that state liability should be no more than a residual approach, the scheme of redress for trans-boundary damages should principally address the civil liability of private parties.