摘要
现行国际法和国内法确立的跨国公司环境损害赔偿责任难以涵盖跨国公司环境损害救济的全部诉求,有必要辅以国家责任。跨国公司环境损害责任之所以可归因于国家,源于东道国以及母国对跨国公司的环境监管职责。跨国公司环境损害的国家责任由赔偿责任与补偿责任组成。前者表现为,国家未履行或者未适当履行对跨国公司的环境监管义务,应当对跨国公司造成的环境损害损失承担与其行为及其过错相适应的赔偿责任;后者表现为,即使国家已经履行了环境监管职责仍然产生了环境损害后果,可由国家在受害方的损害赔偿数额不足时承担补偿责任。为落实跨国公司环境损害的国家责任,应在国际投资协议中确立国家预防义务与补偿的相关条款;在国内相关法律、法规中增加涉外环境侵权责任条款,以国内环境法的域外效力实现跨国公司环境损害国家责任。国家责任是实现低碳经济与全球正义的联结点。在“双碳”背景下,国家应当主动承担应对气候变化的国际责任,发展低碳经济,在绿色经济中实现环境与人权的有机结合。
The compensation liability for environmental damage caused by multinational corporations under current international law and domestic law faces many dilemmas and it is difficult for this liability to cover all the claims for remedies for environmental damages caused by multinational corporations. The liability of multinational corporations should be combined with state responsibility for environmental damage caused by multinational corporations, so as to realize functional complementation. The state responsibility for environmental damage caused by a multinational corporation stems from the environmental supervision responsibilities(powers and obligations) of the host country and the home country relating to the multinational corporation. As countries accelerate the construction of carbon markets, multinational corporations regard carbon emissions as “goods” that can be traded across borders, while neglecting to manage them as public goods that can provide important guarantees for life and health. The state should supervise multinational corporations in their fulfillment of the obligation to reduce carbon emissions that have the value of guaranteeing the survival of mankind, which should not be traded as goods. The state liability for environmental damage caused by multinational corporations is based on international legal theory, practical needs, and international cooperation. It consists of liability for damages and the liability for supplementary compensation. The former is the liability for the environmental damage caused by a multinational corporation borne by a state that has failed to perform or to properly perform its environmental supervision obligations relating to the multinational corporation, which should be commensurate with the state’s acts and faults as the causal forces of the damage and loss;while the latter is the liability for supplementary compensation for the environmental damage caused by a multinational corporation borne by a state that has fulfilled its environmental supervision responsibilities but failed to prevent the occurrence of the environmental damage and the amount of the damages paid by the multinational corporation is not sufficient to compensate for the loss suffered by the injured party. In order to implement the state responsibility for environmental damage caused by multinational corporations, the state’s obligation to prevent and to compensate for such environmental damage should be established in international investment agreements, and the “foreign-related environmental tort liability clause” should be added to relevant domestic laws and administrative regulations to realize the extraterritorial effect of domestic environmental laws. State responsibility is the nexus between the realization of a low-carbon economy and global justice. In the context of “carbon peaking and carbon neutrality goals”, the state should take the initiative to shoulder its international responsibility for addressing climate change and develop a low-carbon economy. Only in a green economy can the organic combination of environmental protection and human rights be achieved.
出处
《环球法律评论》
CSSCI
北大核心
2022年第4期162-176,共15页
Global Law Review
基金
2017年度国家社会科学基金重点项目“气候变化所致损失损害责任之国际法机制研究”(17AFX028)的研究成果。
