Evolving Issues of International Law and Policy
Edited by S. Jayakumar, Tommy Koh, Robert Beckman and Hao Duy Phan
Chapter 3: Unpacking the elements of a state responsibility claim for transboundary pollution
AbstractThe legal requirements governing State responsibility for transboundary pollution are now well settled at international law. However, the limited number of cases involving transboundary pollution that have been decided by international courts and tribunals leaves open many questions concerning the practical application of State responsibility doctrines in this context. This chapter unpacks the elements of a State responsibility claim for transboundary pollution, focusing on those elements that pose the most complex issues in practice. These include questions concerning how to attribute the polluting actions of private entities to States, the content of States’ obligation to act with ‘due diligence’ in the prevention of transboundary harm, and methodologies for proving the causation of injury through transboundary pollution. The chapter illustrates these questions by drawing on the example of transboundary air pollution through the emission of greenhouse gases contributing to climate change.
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