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A Review on State’s Responsibility on Transnational Environmental Pollution
Teng, Yean-Sen 경희대학교 법학연구소 2015 경희법학 Vol.50 No.2
After the Trail Smelter arbitration the obligation that no State has the right to use or permit the use of its territory in such a manner as to cause injury to the territory of another or the properties therein was regarded as a well established rule under international law. As some commentators openly asserted that the Trail Smelter case was the germ from which the law of transboundary environmental harm sprang. This could be the first articulation of the substantive obligation under international environmental law that States have a duty to prevent transboundary environmental harm, and that they have an obligation to pay compensation for the harm they cause. The optimistic prospect on the development of international environmental law was even further endorsed by the ICJ when it declared the preventive principle as a general rule of international law in the merits judgment of the Pulp Mill case. Seemingly, the whole picture of a modern international environmental law is nearly completed through the jurisprudence of ICJ. However, two questions remain to be answered and clarified on environmental damage caused by transboundary pollution in the civil litigation for the redress of damages. First, why the State under its jurisdiction where the activity of a private actor causes the damage in other State should be held responsible for the damage? Second, whether the substantive rule held by the ICJ has constituted general rules of international environmental law? If not, what is the proper legal standing for the victim to claim the redress of damage? Without any treaty law to regulate the situation, it could be a burdensome job for the victim to have his or her case tried before the court whether in the host State or the State where the defendant resides. This article reviews the development of the substantive rules of international environmental law declared in the jurisprudence of ICJ and analyzes the validity of such rules with respect to the general theory of international law concerning the international responsibility of states in conflict with these rules.
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