국제법상 환경범죄론의 再考察
Revisiting International Environmental Crimes of States
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International environmental law has never been free from criticism on its effectiveness. International community including States, International Organization, NGOs and various stakeholders have tried different and innovative approaches to overcome this criticism in international environmental law. The present author argues that the problem of current international environmental lies in its vague concept of environmental harm and undifferentiated responsibility. First, the article will try to find a legal definition of injury, harm and damage irrespectively by comparing conceptual difference and tracing its historical roots shown in legal texts. the terms. Those terms are now almost being used interchangeably but they have interconnected but different origins as well as meanings. The present author argues that the terms should be differentiated and by doing so, we can share the clear-cut bounds of international environmental law. Second, the article will also look into the discussion concerning international crime in International Law Commission in the last century. The present author will focus on 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 Even though some believes the notion of international crime has been replaced by jus cogen and erga omnes in general, this applies only humanitarian law and human rights law era and not to transnational environmental harm.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 argue that to deal with different environmental harms, forms of responsibility should be distinguished accordingly.
Abstract
International environmental law has never been free from criticism on its effectiveness. International community including States, International Organization, NGOs and various stakeholders have tried different and innovative approaches to overcome this criticism in international environmental law. The present author argues that the problem of current international environmental lies in its vague concept of environmental harm and undifferentiated responsibility. First, the article will try to find a legal definition of injury, harm and damage irrespectively by comparing conceptual difference and tracing its historical roots shown in legal texts. the terms. Those terms are now almost being used interchangeably but they have interconnected but different origins as well as meanings. The present author argues that the terms should be differentiated and by doing so, we can share the clear-cut bounds of international environmental law. Second, the article will also look into the discussion concerning international crime in International Law Commission in the last century. The present author will focus on 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 argue that to deal with different environmental harms, forms of responsibility should be distinguished accordingly.
참고문헌 (27)
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