Transboundary Damage in International Law

By Xue Hanqin | Go to book overview

3 Substantive rules and principles:
issues and problems

As illustrated in the previous chapter, the existing regimes on international liability for accidental damage are limited both in scope and in application. Before considering how their scope and application might be extended, however, a few substantive issues need to be examined.


The question of attribution: State responsibility

In the environmental field, transboundary damage bears directly on State responsibility in two respects. In its broadest sense, “State responsibility” denotes the obligation of States to take responsibility for the prevention, or at least minimization and mitigation, of such damage. In the narrow sense of the term, it refers to the obligation of States to redress or make reparation for damage. On the State level, it is the State government that is answerable to the injured State for any transboundary damage. In practice, it is equally true that private victims can often seek to have their grievances redressed only through representation by their government in all dealings with or actions against the government of the author State. Therefore, as the ultimate players in international relations, States shoulder a general responsibility for transboundary damage.

Under the general rules of State responsibility, a State is only responsible for acts or omissions that are attributable to it. Under the terms of the ILC’s Articles on State Responsibility:1

1 Articles on Responsibility of States for Internationally Wrongful Acts, 2001, annexed to GA Resolution 56/83, December 12, 2001 (hereinafter “Articles on State Responsibility”), Article 2. The text and commentaries are conveniently set out in James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, CUP, 2002).

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Transboundary Damage in International Law
Table of contents

Table of contents

  • Cambridge Studies in International and Comparative Law ii
  • Title Page iii
  • Contents v
  • Foreword ix
  • Preface and Acknowledgments xiii
  • List of Treaties xvi
  • List of Cases xxvi
  • Abbreviations xxviii
  • 1- Introduction 1
  • Part I- Accidental Damage 17
  • 2- Liability for Accidental Damage 19
  • 3- Substantive Rules and Principles: Issues and Problems 73
  • Part II- Non-Accidental Damage 111
  • 4- Liability for Non-Accidental Damage 113
  • 5- The Doctrine of Due Diligence and Standards of Conduct 162
  • Part III- Damage to the Global Commons 189
  • 6- Liability for Damage to the Global Commons 191
  • 7- Legal Issues Relating to Damage to the Global Commons 236
  • Part IV- Underlying Principles 267
  • 8- The Nature and Basis of International Liability 269
  • 9- Conclusions 317
  • Bibliography 333
  • Index 356
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