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Browsing by Subject "transboundary harm"

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  • Liimatainen, Nora (2023)
    The alarming state of the environment has led to a sobering realisation by the global community of the need to act promptly for environmental protection. International environmental law is a fairly new field of law addressing the challenges that the global environment faces in an ever-increasing extent. The current study focuses on questions related to the application of state responsibility in the context of international environmental law, and difficulties involved in this respect. Additionally, the thesis will examine inherent ambiguities of international environmental law in respect of the preventive approach to environmental harm. The traditional response of international law to transboundary damage in general has been to impose responsibility on a state that has caused the damage. Accordingly, the state in question has been required to desist from the harmful conduct and to provide accurate reparation to the injured state for the damage that has been caused. In other words, the sovereign rights of states have been diminished for the benefit of the environment and issues regarding environmental harm have been addressed with a focus on reparation. The state responsibility regime is quite well established in international law and customary rules have been codified to provide a clear framework of preconditions in order for state responsibility to be invoked. The compatibility of the state responsibility regime with matters related to the environment can, however, be questioned. This is because state responsibility rests on a reparative approach in regard to harm caused to neighbouring states. The nature of irreversible and irreparable environmental harm, however, is such that requires prior attention rather than counting on a reactive approach to harm that has occurred. The challenges faced by state responsibility in the context of international environmental law include, for instance, difficulties in identifying the source of environmental harm, the establishment of a causal link between a suspected harmful activity and damage as well as the attribution of such harmful conduct to a state. The difficulties mentioned above have not gone unnoticed by the international community which has realised that the reparative no-harm rationale behind state responsibility is ill-adapted to address environmental concerns. The core objective of the rules of international law governing the environment is the prevention of environmental harm rather than just providing a state that suffers environmental damage an opportunity to seek reparation. Hence, a paradigm shift from a reparatory approach to a preventive approach has occurred. Essentially, the principle of prevention, which has become a foundational principle in the field of international environmental law, entails a duty for states to prevent, reduce or control significant transboundary environmental harm resulting from activities within their jurisdiction or control. However, while preventive action is preferable in regards of environmental protection, the regime of preventive measures is not without its ambiguities. Unclarities can be discovered, for instance, in the objective of the obligation to prevent harm as well as its core elements of due diligence and the threshold of significant harm. Despite its ambiguities, the principle of prevention remains as the governing norm in respect of addressing transboundary environmental harm. What needs to be acknowledged is that international environmental law finds itself in a state of development, whereby its rules and principles have yet to deploy their full legal effects. Notwithstanding the incompatibility of a reparative approach with environmental protection, the study arrives at the conclusion that state responsibility, while in principle not an ideal approach, at least for the time being has a significant role in addressing transboundary environmental harm – in ensemble with prevention.