Transboundary Environmental Damage International Legal Liability System Research

With the development of economy and culture of human society, economicglobalization has become the trend of the development of the whole world. As so,nowadays, transboundary environmental damage has been a very important matter tointernational society. International practice and law institution in this aspect hasdeveloped greatly from many years ago. But as a very important part of the law oftransboundary environmental damage, the international responsibility and liabilityrule was developed slowly. So the international responsibility and liability oftransboundary environmental damage has become a very important theoreticalproblem.Traditionally the international responsibility and liability institution oftransboundary environmental damage mainly includes three kinds of responsibility orliability—state responsibility, state liability and international civil liability. Thetraditional state responsibility means the state should be responsible for the harmposed by the private persons within it or under its control; the traditional state liabilitymeans he state should be liable for injurious consequence arising out of the acts thatnot be prohibited by international law; the traditional international civil liabilitymeans the operators should be liable for compensation caused by several kinds of verydangerous activities that were regulated by some treaties.As the development of human society and international law, however, thetraditional international responsibility and liability institution of transboundaryenvironmental damage has many problems. As for the traditional state responsibilityfor transboundary environmental damage, Trail Smelter is not a very good model. Ithas lots of procedure flaws and was not followed by other countries. The attribution ofthe private persons’ activity to the state is appropriate, and lack of support fromcustomary international law practice and relevant international law theory. Theobligation not to harm the environment of other states is not a obligation in customaryinternational law, and is not accepted by international society. The traditional state liability for transboundary environmental damage is basedon the topic of the United Nations International Law Commission “injuriousconsequence arising out of the acts prohibited by international law”. The results of thetopic of the United Nations International Law Commission “injurious consequencearising out of the acts prohibited by international law” were two documents:Prevention of Transboundary Damage from Hazardous Activities (2001) and Draftprinciples on the allocation of loss in the case of transboundary harm arising out ofhazardous activities (2004). But, the provisions of Prevention of TransboundaryDamage from Hazardous Activities (2001) are all about the prevention obligation ofthe state in transboundary environmental damage which is the primary rules of stateresponsibility. Draft principles on the allocation of loss in the case of transboundaryharm arising out of hazardous activities (2004) re all about the international civilliability. As for the traditional international civil liability, the liability for the serioushazard activities prescribed by the international treaties is just a part of internationalcivil liability, not whole. So the traditional stand point is not comprehensive.So we think the new international responsibility and liability institution shouldinclude only two kinds of responsibility—state responsibility and international civilliability, which represent respectively responsibility of international law and of privateinternational law. The institution asserts that it request a theoretical intelligibility andpractical operability to complete international obligation and regulation fortransboundary environmental damage. Two part of this institution complement eachother without incompatibility and they constitute a whole (integrated) responsibilityand liability institution.