環境損傷으로 인한 國際責任과 國際犯罪

International Responsibility, Liability and Crimes against Transboundary Harm

This dissertation addresses one of fundamental issues in international law: state responsibility, liability and crime arouse from transnational environmental harm. Many scholars have already discussed this issue but the novel point of this dissertation is that it examines the three different concepts holistically. The starting point of legal discussion is the landmark decision of Trail Smelter. The rich and various literatures interpreting Trail Smelter can be summarized into two perspectives. One is that international law regulates activities; therefore States are responsible for only activities with fault. The other is that international law regulates results of activities; therefore States should be responsible for the results. This dissertation proposes to interpret Trail Smelter based on two the Supreme Court decision of the United States, Missouri v. Illinois and Georgia v. Tennessee Copper Co. both written by t Justice Oliver Wendell Holmes. Justice Holmes approached two decisions in the same and consistent manner that law regulates results not the activities. Standing with those who support the idea that states have "obligations to prevent environmental harm", not "obligations to control activities to cause environmental harm", the present author theoretically and practically tries to reconsturct the responsibility regimes by integrating three separate regimes in one. The dissertation has also looked into the discussion concerning international crime in International Law Commission in the last century. The present author investigates the dialogues between the members of International Law Commission whether delicts and crimes should be distinguished. By this author's analogy, if there are differences in environmental harm, different degree and form of responsibility should be applied. Unfortunately, International Law Commission's original work to include international environmental crime by states meaning the differentiated form of responsibility exists has opted out. Even though some believes the notion of international crime has been replaced by jus cogen and erga omnes in general, this applies only humanitarian law and human rights law era and not to transnational environmental harm. Therefore, this author argues that to deal with different environmental harms, forms of responsibility should be distinguished accordingly.