황사문제와 국가책임

초록

The rules of international law relating to reparation for environmental damages remain unclear. Futhermore unified legally binding international document to deal with state responsibility is not developed. As a result, there are controversies over responsible party, basis of responsibility, exemptions, coverage of environmental damages, level of environmental damages entails liability, methods, standards and procedures related to measure of damages, remedies, etc. 'Yellow dust' coming from China can entail international responsibility. However, some obstacles exist to solve transboundary environmental dispute solely based on state responsibility. State responsibility has not proved an adequate remedy for global problem for number of reasons which include (ⅰ) difficulty in proving causation between wrongful act and damages, (ⅱ) possibility of infringement on sovereign right, (ⅲ) no sufficient remedy to relieve the damages, (ⅳ) difficulty in measuring the damages, (ⅴ) adverse effects on international foreign relations, etc. In this regard, cooperative efforts of states involved may more effective and appropriate to tackle the problem. That is the reason why a new environmental convention is needed. When we conclude a new convention to solve 'yellow dust' problem, following features should be considered: (ⅰ) an emphasis on national implementing measures being taken by the states parties; (ⅱ) the creation of supervisory mechanisms to monitor and review compliance; (ⅲ) simplified procedures to amend the treaty rapidly; (ⅳ) the generation of strategies and action plans; (ⅴ) the creation of an cooperative institutions to administer commitments; (ⅵ) the clarification of the rules governing state responsibility. To be more specific, the provisions of the convention would include, among others, as follows: preamble, statement of guiding principles and objectives of the convention, definition of key terms, substantive commitments by the parties, regular meeting of the parties, administrative institution or organization, compliance mechanisms, dispute settlement, financial mechanism.

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