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Regime Congruence: Rethinking the Scope of State Responsibility for Transboundary Environmental Harm

By Maria L. Banda. Full text here.

The advent of the Anthropocene has extended the reach of environmental harm: from offshore drilling to geoengineering and climate change, activities in one State can increasingly injure people far beyond its borders. States have longstanding rights under international law to protect their citizens from such harms. In practice, however, States rarely take action against their sovereign peers on behalf of their citizens, seemingly leaving individual victims remediless. This need not be the end of the story. As this Article shows, environmental norms interact with and can find expression in other ways.

This Article asks whether, and to what extent, the obligations that international environmental law imposes on States vis-à-vis each other can, and should, shape the content of duties that States owe under human rights treaties to individual rights-holders beyond their jurisdiction. International courts have yet to tackle this issue in contentious proceedings, and it also remains under-analyzed in the literature. This Article seeks to fill those gaps. It represents the first attempt of its kind to develop a theory of regime congruence and apply it to transboundary environmental harm.

Its contributions are threefold. First, it develops an analytical framework to examine the scope of State obligations arising at the nexus of two mutually-supportive legal regimes—what I call regime congruence. In so doing, it points the way toward a more unified conception of State responsibility and contributes to the literature on the fragmentation of international law. Second, it furthers our understanding of the scope of extraterritorial obligations in international law and explains its application in the area of transboundary environmental harm, which is in urgent need of clarification. Finally, it re-conceptualizes the notions of enforcement in international environmental law by showing that a congruent regime can actually provide more effective redress to individual victims than international environmental law itself. The argument developed in this Article could have significant implications for access to justice and accountability, especially in the Western Hemisphere.