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.
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).