Transboundary Damage Research Articles

Research on the Transboundary Environmental Damage Caused by the Discharge of Nuclear Wastewater in Japan

Neighboring nations voiced severe protests when Japan unilaterally declared on August 23, 2023, that it intended to release radioactive effluent stockpiled since the Fukushima nuclear accident in 2011 into the ocean. Japan clearly breaches international law by acting in a way that is contrary to its duties for reasonable risk prevention, notification, and transboundary environmental impact assessment. In the international community, the question of transboundary injury accountability and compensation has long been of concern. International conventions addressing transboundary pollution are mostly framework agreements with soft law provisions, which means that their substantive impact on contracting parties' behavior is minimal. This article examines the national and personal obligations that the party in control of this nuclear wastewater discharge should have by combining concepts of international law, including the principle of attribution, state sovereignty, and international environmental protection. It examines the characteristics of international transboundary damage liability and compensation schemes from the standpoint of governments taking on international environmental responsibility.

The implementation of the environmental impact assessment in Fukushima contaminated water discharge: an analysis of the international legal framework

Japan is discharging nuclear contaminated water from the 2011 Fukushima incident into the sea after treatment with the Advanced Liquid Processing System (ALPS). This process is expected to continue for decades, as planned by the Japanese government. This decision sparks opposition from many countries and international organizations, as well as constant protests from people in Japan and neighboring countries. Although there are no international documents specifically addressing the discharge of contaminants from a nuclear accident, it is found that the LOS Convention, treaties on nuclear safety, and international environmental laws provide the basis and legal framework for requiring Japan to implement environmental impact assessments throughout the entire process of Fukushima contaminated water discharge. First, this paper evaluates the consistency between the measures taken before Japan’s decision to discharge contaminated water into the sea and the requirements under international laws. Second, this paper further examines the substantive and procedural requirements under international law for the entire process of Fukushima contaminated water discharge. It identifies substantive criteria to be applied in assessing the environmental impact of Fukushima contaminated water discharge based on international documents and explores the procedural requirements to assure transparency, prudence, and accountability of the assessment. Finally, given the potential transboundary damage caused by the discharge of nuclear-contaminated water into the sea, this paper proposes that a new multi-stakeholder cooperative mechanism is necessary to achieve effective and credible monitoring and respond to the claims of potentially affected parties. In addition to providing a legal framework for the environmental impact assessment in the Fukushima case, this paper may also contribute to the proper disposal of nuclear contaminants in future nuclear accidents.

State Immunity from Civil Jurisdiction in Transboundary Environmental Litigations

Abstract The paper offers a de lege lata and de lege ferenda analysis of State immunity from civil jurisdiction in cases related to environmental transboundary damage, including climate change litigations. De lege lata, the analysis focuses on the customary exceptions to State immunity, namely the restrictive doctrine and the forum tort exception. De lege ferenda, the contribution firstly discusses the recent domestic case law lifting jurisdictional immunity for acts jure imperii which amount to serious violations of human rights and/or humanitarian law. Secondly, it seeks to open the discussion on a possible reform of the forum tort exception on the model of the European discipline of private international law in matters of tort, in order to ensure better protection of the individual right to an effective remedy.

The Extraterritorial Application of Human Rights Treaties in the Context of Environmental Transboundary Harm

This article treats the issue of jurisdiction under human rights treaties in cases of environmental transboundary harm. It aims to cover the definitions of the environment and transboundary harm as well as the relevant rules under international environmental law applicable to environmental transboundary harm. Thereafter, it analyses the territorial scope of human rights treaties and focuses on the establishment of a jurisdictional link in cases of environmental transboundary damages. It suggests that the classical approach, which is focused on effective control over an area or persons, is not apt in this context. Rather, this article proposes the use of other approaches to jurisdiction, such as the functional approach adopted by the Inter-American Court of Human Rights which is based on an effective control over the activities causing environmental harm and consequent human rights violations. It further argues that the general rule under customary international law which prohibits States from engaging in acts causing transboundary harm could also be applied as a special feature in the context of international human rights law. Finally, this article concludes by pointing out some current challenges that need to be clarified with respect to the obligations of States arising from human rights breaches caused by environmental transboundary damages.

Liability for Transboundary Damage of Genetically Modified Organisms: Existing Patterns and Application

Normative analysis found that for the application of liability for transboundary damage to genetically modified organisms, there are currently three liability patterns: traditional state liability, private law liability, and liability for transboundary damage. It will not be an effective solution to the problem of penalty for damages, if the above liability patterns apply to transboundary damage of genetically modified organisms separately. And this approach is inconsistent with the legal principles of relevant international law and judicial practice. So this article uses method of legal interpretation to analyze and interpret the provisions of Convention on Biological Diversity, The Cartagena Protocol on Biosafety and The Nagoya-Kuala Lumpur Supplementary Protocol to clarify the true meaning of the provisions in depth, and eliminate errors and omissions. At the same time, this article uses the method of theoretical analysis to analyze the existing liability patterns. Finally, we found, the principle of timely and adequate compensation for victims should be implemented in complex realities, and genetically modified damage should be dealt with and in accordance with the attributes of damage, causation and other factors. According to these factors, we will divide transboundary damage of genetically modified organisms into three types: intentional transboundary movement, unintentional transboundary movement and illegal transboundary movement. To divide the transboundary damage to genetically modified organisms and apply different liability patterns according to different situations should be the best approach.

On certain principles of international legal responsibility of states for causing transboundary damage

On certain principles of international legal responsibility of states for causing transboundary damage

Multipollutant impacts to U.S. receptors of regional on-road freight in Ontario, Canada

ABSTRACT On-road freight is a significant source of air pollutant and greenhouse gas emissions. The resulting economic damages can cross borders through processes of atmospheric fate and transport, regardless of whether that freight serves local or regional demand. Understanding patterns of freight demand and atmospheric processes can thus inform inter-jurisdictional efforts to mitigate multipollutant damages. We quantify how different freight trips across 49 census divisions in the Province of Ontario, Canada create an economic burden on downwind US receptors. We apply an integrated modeling approach combining a travel demand model, a mobile emissions simulator, and marginal damages from emissions. Economic damages include the increased risk of premature death from PM2.5 related to primary PM2.5 (represented by damages from inert primary PM2.5), NOX, SO2, and NH3, and the global effects of climate change from greenhouse gases (CO2, CH4, N2O). Over 90% of the $1.4 billion (2010USD) in transboundary air pollutant damages at US receptors result from regional freight demand across Ontario in 2012. A single major freight corridor, the ON-401 expressway, contributes more than half of all damages. Most of these damages impact the states situated to the south and east of the province. Mean estimates of annual damages range from millions to tens of millions (2010USD) across major eastern metropolitan areas including New York, Boston, Philadelphia, and D.C. Most of these damages result from NOX, which constitutes 95% of inorganic PM2.5-related pollutant emissions by mass. Thus, targeting NOx from freight movements along the ON-401 expressway could avoid millions to tens of millions of damages annually in eastern US cities. These results indicate that local green freight policies may be unable to address the environmental burden at cross-border receptors. Cooperation is needed among local, provincial, and federal governments to encourage policies targeting the most harmful emissions along routes servicing regional freight demands. Implications: On-road freight movement in Ontario can yield billions of dollars in annual economic damages to US residents through its effects on air pollution and climate change. We use an integrated modeling approach combining an on-road freight travel demand, mobile emissions, and marginal damages of emissions to quantify and study these economic damages. Regional freight contributes approximately 90% of damages, with one major freight corridor, the ON-401 expressway, contributing 59%. Most damages derive from emissions of NOx and amount to millions to tens of millions of dollars in annual damages across major Eastern US cities. Thus, targeting NOx from freight movements along the ON-401 expressway could avoid millions of damages annually in eastern US cities.

The Legitimacy of Dam Development in International Watercourses: A Case Study of the Harirud River Basin

AbstractThis article examines the international legitimacy of unilateral dam development in an international watercourse from the perspective of international water law. Drawing upon technical analysis over the Harirud River Basin, the article discusses probable negative impacts of unilateral dam development in Afghanistan on downstream Iran and Turkmenistan. Competing claims are analyzed to assess emerging transboundary damage under customary international water law. Applying these insights to the case study, this article explores how legal norms and principles can contribute to transboundary water cooperation. It investigates how equitable and reasonable utilization, as required by the United Nations Watercourse Convention, could be reached and whether current activities are in conformity with international norms. Based on this analysis and in the light of international customary law, the article questions the compatibility of unilateral control and capture of water resources in Afghanistan, particularly through the Salma Dam, with ‘equitable and reasonable utilization’ and ‘no significant harm’ rules. The article also argues that building the Salma Dam results in significant transboundary harm to downstream states. Hence, such harm could be considered as significant transboundary damage. Conclusions point to an understanding of water law as a form of institutional guidance in order to provide a transparent setting for transboundary water cooperation among riparian states.

The Kiev Civil Liability Protocol and the Interaction between Civil and Administrative Liability Regimes

Abstract Τhe Kiev Civil Liability Protocol creates a strict liability regime which channels liability towards the operator, providing also that such liability shall be covered by compulsory insurance. The Protocol implements the “polluter-pays” principle and, unlike other similar regimes, it is neither exclusive nor self-contained, allowing in some instances for the application of other international instruments or of relevant rules of domestic law. It is argued that the Kiev Protocol can coexist with eu Directive 2004/35 on environmental liability, given that the latter opts for an administrative approach, and could even provide a mechanism for the recovery of costs incurred by the competent public authority in case of transboundary damage, thus facilitating the implementation of the Directive. It covers both economic and, to an extent, environmental damage and, if in force, will be an important tool in the hands of the victims of transboundary pollution.

International Law and Foreign Investment in Hydroelectric Industry: A Multidimensional Analysis

The main focus of the present article is on the entanglement between four bodies of international law sensitive to foreign investment in the creation and/or operation hydroelectric industry: i.e. international investment law, human rights law, international water law and private international law to the extent that public international law rules on conflict of laws on civil liability for transboundary damage are concerned. This horizontal approach to the analysis is supplemented by a vertical one looking at the interactions between international and domestic law. Consideration of the different bodies of international law in question is associated to that of the adjudicative, and non-adjudicative, means of dispute settlement available under each such bodies of law. On that score, the role of the foreign investor in a litigation scenery will be considered, primarily as claimant, but also, prospectively, in relation to the situation in the State hosting the investment is, or may become, respondent in inter-State litigation.

International Legal Challenges on Biotechnological Products

Selection and separation of inheritance has the desired characteristics of plants, animals and organisms have specific morphological characteristics and called them in terms of biotechnology. Including applications help farmers to reduce the amount of fertilizers , chemical pesticides, water and fuel consumption for the production of food As well as biotechnological products can be used for purification and cleansing the environment and food production at lower costs and reduce the use of harmful chemicals to human health and the environment. However, criticism has been leveled on biotechnology, for example, genetically modified organisms, unlike chemicals, have a risk of spread and replication capabilities and unknown toxins may be produced by biotechnological products or reduce biodiversity, genetic contamination and poisoning and destroy beneficial insects harmless. This article, in addition to addressing various aspects of biotechnology, seeking to assess the strengths and limitations of current international law and structures designed to address these concerns communities. Biotechnology problems at the international level and treaties related to each of them are as follows: A) Concerns about patent genetically modified crops: National rules developed countries, genetically modified crops have to support intellectual property. If to be biotech crops intellectual property rights, the bulk of the food of world award to several capitalist companies .B) Concerns about Transparency Regarding Exports of Genetically Modified Products: Notification of genetically modified content could be achieved through a labeling system C) Liability for damage caused by genetically modified imported products: The international community have tried to establish international rules on liability and compensation for damage caused by genetically modified crops that in the Biosafety Protocol, the provisions limiting the harmful effects caused by genetically modified organisms. D) Liability of Trans boundary damage caused by genetically modified crops: Genetically modified crops could have a negative impact on the environment of neighboring states, even if completely in a state of production and consumption .After careful consideration of the above it can be concluded that there is not a single treaty regime and specific concerns to address the biotechnology. But we are faced to fragmented and conflicting network of treaties relating to intellectual property, trade and the environment, as well as a series of general principles of law and legal norms ambiguous.

International liability for transboundary damage arising from stratospheric aerosol injections

The large-scale implementation of stratospheric aerosol injection (SAI) may potentially lead to disastrous transboundary damage. Before implementation of this technique is initiated, it is crucial to address the issue of compensation for potential victims of such damage. However, international law does so far not provide for a specific liability regime for SAI. This study assesses if and to what extent existing international rules on liability could be applicable to SAI damage. Apart from the assessment of the rules on State responsibility, the question whether States can generally be held internationally liable for damage arising from lawful activities is addressed. In addition, liability regimes concerning ultra-hazardous activities that are comparable to SAI are analysed, taking into account their potential relevance for the design of a future SAI liability regime. The issue of uncertainty is particularly challenging in the context of SAI, as usually evidence concerning the causality between implementation and potential damage would have to be produced. The study concludes that existing international liability rules are not capable of providing equitable and effective compensation for SAI damage. Still, valuable approaches can be found in these regimes in order to identify the main elements which a future SAI liability regime would have to address in order to ensure such compensation.

Transboundary Damage in Climate Change: Criteria for Allocating Responsibility

This paper suggests that excessive emissions of greenhouse gases should count under international law as a type of prohibited transboundary damage and proposes four specific criteria by which to judge whether emissions are excessive: extent of effort to reduce emissions (‘due diligence’), costs of possible additional reductions (‘necessity’), current emissions per capita (actual results to date), and percentage of total cumulative emissions (national encroachment on global budget). As a case-study, the four criteria are applied to the United States, which is judged to be highly responsible for transboundary damage and appropriately subject to litigation.

Feedback control for ecosystem management: The case of wolf-elk-hunting dynamics in the US Mountain West

The purpose of this paper is to explore the promise of utilizing some relatively new feedback control techniques in ecosystem management. First, we set forth a basic ecological-economic model of a predator-prey-hunting system in which both the predator and prey have use (flow) and non-use (stock) value and when the predator can inflict transboundary damages. We then use new data from the US Mountain West to show how a particular feedback approach-linear parameter-varying (LPV) control-can be utilized in this context. Our LPV model is able to quantify the cost of managing disturbances that inevitably arise as a manager tries to keep the actual path of the system “close” to its optimum. The results suggest management strategies in mountain ecosystems that feature large, mammalian carnivores.

A Nuclear Third Party Liability Regime of a Multilateral Nuclear Approaches Framework in the Asian Region

There are two primary challenges for establishing nuclear third party liability (TPL) regimes within multilateral nuclear approaches (MNA) to nuclear fuel cycle facilities in the Asian region. The first challenge is to ensure secure and prompt compensation, especially for transboundary damages, which is also a challenge for a nation-based facility. One possible solution is that in order to share common nuclear TPL principles, all states in the region participate in the same international nuclear TPL convention, such as the Convention on Supplementary Compensation for Nuclear Damage (CSC), with a view to its entry into force in the future. One problem with this approach is that many states in the Asian region need to raise their amount of financial security in order to be able to participate in the CSC. The second challenge lies with the multiple MNA member states and encompasses the question of how decisions are to be made and responsabilities of an installation state are to be shared in case of a nuclear incident. Principally, a host state of the MNA facility takes on this responsibility. However, in certain situations and in agreement with all MNA member states, such responsibilities can be indirectly shared among all MNA member states. This can be done through internal arrangements within the MNA framework, such as reimbursement to a host state based on pre-agreed shares in accordance with investment and/or making deposits on such reimbursements in case of an incident.

International Court of Justice on Potential Transboundary Damage and its Consequences in Nuclear Law

On 4 May 2006, Argentina filed in the International Court of Justice (hereinafter ICJ) an application instituting proceedings against Uruguay. Argentina claimed that Uruguay, by authorising the construction of a pulp mill (the CMB mill) and the construction and commissioning of another pulp mill (the Orion mill), breached its obligations under the 1975 Statute of the River Uruguay, a treaty between Argentina and Uruguay, notably the obligation to take all necessary measures for the optimum and rational utilisation of the River Uruguay.

China and International Environmental Liability – Legal Remedies for Transboundary Pollution

Contents: 1. Introduction and Editorial Preface Michael Faure and Song Ying PART I: INTERNATIONAL ENVIRONMENTAL LAW AND CONVENTIONS 2. Cluster-Litigation in Cases of Transboundary Environmental Harm Andre Nollkaemper 3. The Role of International Conventions in Solving Transboundary Pollution Disputes James Harrison 4. Transboundary Vessel-Source Marine Pollution - International Legal Framework and its Application to China Wang Hui 5. ILC Proposal on the Role of Origin State in Transboundary Damage Gou Haibo PART II: NATIONAL ENVIRONMENTAL LAW IN A TRANSBOUNDARY LEGAL CONTEXT 6. Applying National Liability Law to Transboundary Pollution: Some Lessons from Europe and the United States Michael Faure and Gerrit Betlem 7. The Joint Governance of Transboundary River Basins: Some Observations on the Role of Law Marjan Peeters 8. A New Look at Environmental Impact Assessments: Using Customary Law to Prevent Domestic and Transboundary Environmental Damage Jack Jacobs 9. Transboundary Environmental Crimes: An Analysis of Chinese and European Law Thomas Richter PART III: THE SONGHUA RIVER POLLUTION CASE 10. Reflections from the Transboundary Pollution of Songhua River Wang Jin, Huang Chiachen and Yan Houfu 11. Pondering Over the Incident of Songhua River Pollution from the Perspective of Environmental Law Wang Canfa, Yu Wen-xuan, Li Dan and Li Jun-hong 12. International Legal Aspect of the Songhua River Incident Song Ying PART IV: COMPARATIVE CONCLUSIONS 13. Comparative and Concluding Remarks Michael Faure and Song Ying Index

Environmental liability and harmonization in the presence of transboundary effects and hidden assets

Within the context of transboundary disputes, this paper seeks to determine which liability concept, negligence or strict liability, performs better when assets are secure against foreign claims for transboundary damages. Our results indicate that, if assets are hidden from foreign claims, strict liability will not implement the socially optimal outcome, but neither will negligence. However, even though the socially optimal outcome is not always achieved, strict liability weakly dominates negligence. These results suggest that the harmonization of statues that deal with transboundary pollution should be based on strict liability not negligence.

State Responsibility for Transboundary Ecological Damage: The Case of the Chinese Benzole Spill

In the afternoon of 22 December 2005 the recent spill of 100 tons of benzole in China has reached the Russian city of Chabarovsk on the Amur River. Now is the population of this city of 600,000 facing contaminated drinking water and a severe damage to the environment. Due to the fact that many houses in the region are heated through a centralized heating system which uses centrally heated water to warm buildings, local authorities, faced with either pumping the contaminated water into every house or having the population of the Siberian city freeze at temperatures around -26 degrees Centigrade might be forced to choose the latter option. The low temperatures not only slow down the flow of the Amur River but also binds the benzole in the ice, which means that Chabarovsk and the entire region might face environmental disaster as late as spring when the ice will be melting, releasing the poisonous substances. The Chinese government's carelessness regarding the environment therefore hardly comes as a surprise and given the current nationalistic undertone in China, neither does the fact that China fails to care about the environment damaged abroad. According to news reports, China has somewhat supported Russia in the construction of the aforementioned dams, yet given the potentially disastrous effect of the spill on Russia's environment and the life of hundreds of thousands of Russian citizens, this support appears to be merely a drop in the ocean. Not exactly a champion of the environmental cause herself, Russia could do a lot both for the environment and for Russia's standing in the world by taking legal action against China over the damage caused by China. In this article we will assess whether Russian claims for damages against China can be successful.

Nuclear liability for international transport accidents under the modernised nuclear liability conventions: an assessment

The last decade saw the adoption of four new nuclear liability treaties, resulting in a modernisation of the existing nuclear liability regime. If applicable, the nuclear liability situation, in the case of international transport, might become more complicated, but at the same time also more transparent, should these treaties enter into force for certain States, but not for others. For instance, the extension of the geographical scope and the definition of nuclear damage, as well as the increased liability amounts, will result in higher liability coverage for a wider category of victims than before. On the other hand, the risks of claims outside the nuclear liability regime under other laws and/or in different courts, might be reduced. This paper analyses the possible consequences of nuclear liability protection applicable to multimodal nuclear transport, the cause generatrice being a catastrophic accident causing wide-scale transboundary damage involving different countries.