【作者】 姜玮；

【导师】 孙新强；

【作者基本信息】 山东大学 ， 国际法， 2010， 硕士

【摘要】 随着科技日新月异的发展,各国疯狂地致力于对能源、外空、海底等的开发利用活动,’与此同时,这些活动带来的对社会、对邻国居民、财产以及环境的损害事件频繁发生。众所周知,传统的国家责任是以违反国际法义务为前提的,而在跨界环境损害领域,国家责任制度已不再仅仅是为其国际不法行为而承担的法律责任,还包括了国际法不加禁止的行为导致损害的国际责任。因此,传统的国家责任制度随着客观需要的改变而产生了很大变化,不断被丰富和发展着。本文在对跨界环境损害进行简单阐述的基础上,从案例着手,研究跨界环境损害责任的发展,讨论了传统国家责任制度的弊端,国家责任制度的适用困境,以及国际民事赔偿制度的兴起,并介绍了中国的态度和立场,最后对中国处理跨界损害事件提出了几点建议。基于此,本文分四章进行了相关研究：第一章对跨界环境损害的界定和分类进行了简单的阐述。国际社会对跨界环境损害的界定经历了一个漫长的探索过程,《关于国际法不加禁止行为所产生的损害性后果的国际责任》中国际法委员会对跨界环境损害的界定被此后的很多国际公约、条约所沿用,通过对定义中关键词“跨界”“起源国”“受损害国”“损害”的解读,了解什么是跨界环境损害。其次,跨界环境损害的形式多种多样,各种形式有其独有的特点,责任的承担方式也将不同,本文从两个角度对跨界环境损害进行分类,引出本文将探讨的“国际法不加禁止行为”所致跨界损害的国际责任。第二章从特雷尔冶炼厂案入手,通过分析本案对责任制度带来的启示和反思,讨论了跨界环境损害责任对传统国家责任制度的发展和补充,特雷尔案件本身的程序缺陷,和国家责任制度的适用困境。在国际社会对本案的褒贬声中,为下一步对国际民事赔偿责任制度的研究作了铺垫。第三章名为两个原则和两个草案。通过对《预防原则草案》和《损失分配原则草案》具体内容的阐述,使我们了解了什么是预防原则,履行预防义务中的一般和具体义务,什么是损失分配,如何执行损失分配,并由此建立的一种新的责任体系：由经营者首先承担赔偿责任,而国家承担补充赔偿责任。第四章从发生在中国的案例松花江水污染案入手,从中国对本案的处理来看其态度和立场,可以得出结论,中国承认预防义务并一向坚持国际合作,另外,中国参与了《预防原则草案》和《损失分配原则草案》的制定过程,而且中国代表马新民关于“审议预防危险活动的跨界损害及此类损害的损失分配问题”议题的发言也表明了中国对国际民事赔偿制度所确立的责任承担方式的赞成。然而,中国在处理跨界环境损害案件的过程中仍有很多不足,从对环境的立法、国家机制的完善,到政府和经营者意识的提高,笔者提出了自己的几点建议。更多还原

【Abstract】 With the rapid developments in technology, many countries are focusing on the development and utilization of energy, outer space resources and undersea resources. At the same time, these activities lead to many accidents, which do harm to our society, to neighboring residents, to property and to the environment. As we all known, traditional state responsibility is based on the premise of breach of obligations under international law, while in the field of transboundary environmental damage, the system of state responsibility is no longer just for its internationally wrongful act liability, but also includes the international liability for the acts which are not prohibited by international law but lead to damage. Thus, with the change of objective needs, the traditional system of state responsibility is changing a lot, being enriched and developed.Based on a brief explanation of transboundary environmental damage and beginning with cases, this essay observes on the development of responsibility for transboundary environmental damage, holds a discussion about the disadvantage of the traditional system of State responsibility and its plight of application. It traces the origin of international civil compensation system, and introduces China’s attitude and position at this point. Finally, there are a few suggestions for China to deal with the problem of transboundary environmental damage. As what has been talked above, this essay is divided into four chapters:Chapter one is a brief explanation of the definition and classification of transboundary environmental damage. There was a long exploring journey for the nternational community before the definition of transboundary environmental damage was given. The definition in international liability for injurious consequences arising out of acts not prohibited by international law (International Compensation Responsibility) given by the International Law Commission is often quoted by many international conventions and treaties from then on. Through the interpretation of the terms such as "transboundary", "State of origin", "injured State" and "damage", many people begin to know what is transboundary environmental damage. Besides, the types of transboundary environmental damage are various, and each of them has its own unique characteristics, corresponding to accountability in different ways. This essay classifies transboundary environmental damage from two aspect, introducing the discussion of international liability and responsibility for injurious consequences arising out of acts not prohibited by international law.Chapter two is beginning with the case of the Trail Smelter. By analyzing and reflecting what the case has brought to the responsibility system, the auther discusses how responsibility for transboundary environmental damage improves and complements the traditional system of State responsibility. The plight of application of the system of State responsibility and the inherent defect appeared in the case of theTrail Smelter are discussed, as well. Arousing the voice of both appreciation and derogation in international community, the discussion of this case underlies the research on International civil compensation system in the future.Chapter three is titled "two principles and two drafts". With analysis on the Draft Principles of Precaution and the Draft Principles on Allocation of Loss, readers will realize what is the precautionary principle, as well as the general and specific principles in performing the oblication of prevention. Besides, they will be aware of the defination of loss distribution, the way to distribute the loss, and a new system of responsibility based on it:it is the operator who bears the liability for compensation before the government bears complementary liability for compensation.Chapter four is beginning with a water pollution case, which happened in Songhua River in China. From the way in which Chinese government dealt with this case, we can see through its attitude and position, and draw a conclusion:China has always insisted on recognition of the obligation of prevention and international cooperation. Besides, China participated in the Draft Principles of Precaution and the Draft Principles on Allocation of Loss in the formulation process. The speech addressed by the representative of China Ma Xinmin about "consideration of prevention of transboundary harm from hazardous activities and allocation of loss of such harm" indicates that China approves of the methods of bearing liability set by international civil compensation system. However, there are still many shortages in the process of dealing with the cases related to transboundary environmental damage in China. Arranging from the development of environmental legislation and integrity of national mechanisms, to the improvement of government and operators’awareness, the auther put forward some suggestions of my own.更多还原