国际环境损害责任的私法化倾向

On the Private Law Tendency in International Environmental Damage Liability

不同于传统国际法理论,国际环境损害责任不以国际不法行为作为责任的必要构成要件,责任主体多样化,不严格适用过错原则。在这些特点的影响下,近半个世纪以来,国际环境损害责任呈现出私法化的趋势。在引入损失分担原则后,严格责任被适度软化,国际环境损害责任归责原则实现重构,私法化倾向大致体现三个方面,国际法委员会的立法态度,国际造法性条约实践及其解纷方式,责任制度的模式选择。私法化趋势应强化国家补充责任理论的运用,坚持损失分担和风险预防原则,适度软化严格责任,赋予解纷机制以污染者付费的内涵,还需正视传统国家责任理论的运用,加强国际环境法与国际关系和国际政治的有机互动。

Different from the traditional theory of international law, internationally wrongful act is not a neces-sary elements of international environmental damage liability, the subjects of responsibility are diversified, not strictly apply the principle of strict liability. Under the influence of these characteristics, in the past half cen-tury, the responsibility of international environmental damage has shown a tendency of private law. After in-troducing the principle of loss sharing, the strict liability is moderately softened, and the principle of liability for international environmental damage has also been reconstructed. Private law tendency are roughly reflected in three aspects,the legislative attitude of the international law commission, the legal practice of international law-making treaties and dispute solution, and the model choice of responsibility system. The trend of privati-zation also reminds us that we should strengthen the application of state supplementary responsibility theory in the future, adhere to the principle of loss sharing and risk prevention, soften strict liability, and the solution mechanism need reflects the polluters pay principle. We must face up to the application of traditional state re-sponsibility theory, strengthen the international environmental law and international relations and international political interaction.