Transboundary Harm In International Law

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Cambridge University Press0521856434 - Transboundary Harm in International Law: Lessons from the Trail Smelter ArbitrationEdited by Rebecca M. Bratspies and Russell A. MillerFrontmatterMore informationtransboundary harm in international lawMany harms flow across the ever-more porous sovereign borders of a globalizingworld. These harms expose weaknesses in the international legal regime built onsovereignty of nation states. Using the Trail Smelter arbitration, one of the most citedcases in international environmental law, this book explores the changing nature ofstate responses to transboundary harm. Taking a critical approach, the book examinesthe arbitration’s influence on international law generally and international environmental law specifically. In particular, the book explores whether there are lessonsfrom Trail Smelter that are useful for resolving transboundary challenges currentlyconfronting the international community. The book collects the commentary of adistinguished set of international law scholars who consider the history of the TrailSmelter arbitration, its significance for international environmental law, its broaderrelationship to international law, and its resonance in fields beyond the environment.Rebecca M. Bratspies holds a B.A. in Biology from Wesleyan University and graduatedwith honors from the University of Pennsylvania Law School, where she was electedto the Order of the Coif and awarded the Green Prize for Excellence in Torts. She wasnamed a Luce Foundation Scholar and Seconded to Taiwan’s Ministry of the Environment. Her scholarly research focuses on environmental regulatory regimes; sheis particularly interested in the international dimensions of environmental regulationand the role of nonstate actors. She currently holds an associate professorship of law atCUNY School of Law where she teaches environmental, property, and administrativelaw. While on the faculty at the University of Idaho College of Law, she cofounded,with Russell Miller, the Annual Idaho International Law Symposium. The inauguralsymposium gave rise to this book.Russell A. Miller has degrees from Washington State University (B.A.); Duke University (J.D./M.A.); and Johann Wolfgang Goethe University, Frankfurt, Germany(LL.M.). He was the recipient of a 1999 Robert Bosch Foundation Fellowship. He is afrequent Visiting Scholar at the Max Planck Institute for Comparative Public Law andPublic International Law. Professor Miller is the cofounder and Co-Editor-in-Chief ofthe German Law Journal (http://www.germanlawjournal.com). He is also the coeditorof the Annual of German & European Law and the coauthor of the forthcoming thirdedition of The Constitutional Jurisprudence of the Federal Republic of Germany. WithRebecca Bratspies he cofounded the Annual Idaho International Law Symposium.The inaugural symposium gave rise to this book. Cambridge University Presswww.cambridge.org

Cambridge University Press0521856434 - Transboundary Harm in International Law: Lessons from the Trail Smelter ArbitrationEdited by Rebecca M. Bratspies and Russell A. MillerFrontmatterMore informationTransboundary Harm in International LawLessons from the Trail Smelter ArbitrationEdited byRebecca M. BratspiesCUNY School of LawRussell A. MillerUniversity of Idaho College of Law Cambridge University Presswww.cambridge.org

Cambridge University Press0521856434 - Transboundary Harm in International Law: Lessons from the Trail Smelter ArbitrationEdited by Rebecca M. Bratspies and Russell A. MillerFrontmatterMore informationcambridge university pressCambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São PauloCambridge University Press32 Avenue of the Americas, New York, ny 10013-2473, usawww.cambridge.orgInformation on this title: www.cambridge.org/9780521856430 c Cambridge University Press 2006This publication is in copyright. Subject to statutory exceptionand to the provisions of relevant collective licensing agreements,no reproduction of any part may take place withoutthe written permission of Cambridge University Press.First published 2006Printed in the United States of AmericaA catalog record for this publication is available from the British Library.Library of Congress Cataloging in Publication DataTransboundary harm in international law : lessons from the Trail Smelter arbitration / edited byRebecca Bratspies and Russell Miller.p. cm.Includes index.isbn-13: 978-0-521-85643-0 (hardback : alk. paper)isbn-10: 0-521-85643-4 (hardback : alk. paper)1. Jurisdiction (International law) 2. State responsibility. 3. Transboundary pollution – Law andlegislation. 4. Consolidated Mining and Smelting Company of Canada Ltd. 5. United States –Claims vs. Canada. I. Bratspies, Rebecca, 1965– II. Miller, Russell (Russell A.)III. Title.kz6148.t73 2006341.4–dc222005028952isbn-13 978-0-521-85643-0 hardbackisbn-10 0-521-85643-4 hardbackCambridge University Press has no responsibility forthe persistence or accuracy of urls for external orthird-party Internet Web sites referred to in this publicationand does not guarantee that any content on suchWeb sites is, or will remain, accurate or appropriate. Cambridge University Presswww.cambridge.org

Cambridge University Press0521856434 - Transboundary Harm in International Law: Lessons from the Trail Smelter ArbitrationEdited by Rebecca M. Bratspies and Russell A. MillerFrontmatterMore informationFor my uncle Dennis Replansky –who loved the lawRebecca M. Bratspies* * *To my parents, for giving me the gift of the breathtaking rivers of the Americannorthwest. Who would have thought those rivers might one day flow out into theworld like this?It pleases me, loving rivers.Loving them all the way backto their source.Raymond Carver,Where Water Comes Together with Other Water,Where Water Comes Together with Other Water: Poems 17 (1986).Russell A. Miller Cambridge University Presswww.cambridge.org

Cambridge University Press0521856434 - Transboundary Harm in International Law: Lessons from the Trail Smelter ArbitrationEdited by Rebecca M. Bratspies and Russell A. MillerFrontmatterMore word by David D. Caronpage xixviixixIntroduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Rebecca M. Bratspies and Russell A. MillerPART ONE. THE TRAIL SMELTER ARBITRATION – HISTORY,LEGACY, AND REVIVALHistory1 “An Outcrop of Hell”: History, Environment, and the Politicsof the Trail Smelter Dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13James R. Allum2 The Trail Smelter Dispute [Abridged] . . . . . . . . . . . . . . . . . . . . . . . 27John E. ReadRoots and Legacy3 Of Paradoxes, Precedents, and Progeny: The Trail SmelterArbitration 65 Years Later . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34Stephen C. McCaffrey4 Pollution by Analogy: The Trial Smelter Arbitration [Abridged] . . . . . . 46Alfred P. Rubin56Has International Law Outgrown Trail Smelter? . . . . . . . . . . . . . . . . 56Jaye EllisThe Flawed Trail Smelter Procedure: The Wrong Tribunal,the Wrong Parties, and the Wrong Law . . . . . . . . . . . . . . . . . . . . . . 66John H. Knoxvii Cambridge University Presswww.cambridge.org

Cambridge University Press0521856434 - Transboundary Harm in International Law: Lessons from the Trail Smelter ArbitrationEdited by Rebecca M. Bratspies and Russell A. MillerFrontmatterMore informationviiiContents7Rereading Trail Smelter [Abridged] . . . . . . . . . . . . . . . . . . . . . . . . . 79Karin Mickelson8Trail Smelter and the International Law Commission’sWork on State Responsibility for Internationally Wrongful Actsand State Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85Mark A. DrumblDerivative versus Direct Liability as a Basisfor State Liability for Transboundary Harms . . . . . . . . . . . . . . . . . . . 99Mark Anderson9Return to Trail10Transboundary Pollution, Unilateralism, and the Limitsof Extraterritorial Jurisdiction: The Second Trail SmelterDispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109Neil CraikPART TWO. TRAIL SMELTER AND CONTEMPORARYTRANSBOUNDARY HARM – THE ENVIRONMENT11Trail Smelter in Contemporary International EnvironmentalLaw: Its Relevance in the Nuclear Energy Context . . . . . . . . . . . . . . 125Günther Handl12Through the Looking Glass: Sustainable Development and OtherEmerging Concepts of International Environmental Law in theGabčikovo-Nagymaros Case and the Trail Smelter Arbitration . . . . . . . 140James F. JacobsonTrail Smelter’s (Semi) Precautionary Legacy . . . . . . . . . . . . . . . . . . 153Rebecca M. Bratspies131415Surprising Parallels between Trail Smelter and the GlobalClimate Change Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167Russell A. MillerSovereignty’s Continuing Importance: Traces of Trail Smelterin the International Law Governing Hazardous Waste Transport . . . . . 181Austen L. Parrish16The Legacy of Trail Smelter in the Field of TransboundaryAir Pollution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195Phoebe Okowa17The Impact of the Trail Smelter Arbitrationon the Law of the Sea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209Stuart B. Kaye Cambridge University Presswww.cambridge.org

Cambridge University Press0521856434 - Transboundary Harm in International Law: Lessons from the Trail Smelter ArbitrationEdited by Rebecca M. Bratspies and Russell A. MillerFrontmatterMore informationContentsixPART THREE. TRAIL SMELTER AND CONTEMPORARYTRANSBOUNDARY HARM – BEYOND THE ENVIRONMENT181920212223Trail Smelter and Terrorism: International Mechanisms to CombatTransboundary Harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225Pierre-Marie Dupuy and Cristina HossThe Conundrum of Corporate Social Responsibility: Reflectionson the Changing Nature of Firms and States . . . . . . . . . . . . . . . . . . 240Peer ZumbansenA Pyrrhic Victory: Applying the Trail Smelter Principle to StateCreation of Refugees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254Jennifer Peavey-JoanisTransboundary Harm: Internet Torts . . . . . . . . . . . . . . . . . . . . . . . 268Holger P. HestermeyerInternational Drug Pollution? Reflections on Trail Smelterand Latin American Drug Trafficking . . . . . . . . . . . . . . . . . . . . . . . 281Judith Wise and Eric L. JensenApplication of International Human Rights Conventionsto Transboundary State Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295Nicola VennemannAnnex A. Convention Between the United States of America and theDominion of Canada Relative to the Establishment of a Tribunal toDecide Questions of Indemnity and Future Regime Arising from theOperation of Smelter at Trail, British Columbia . . . . . . . . . . . . . . . . . . . 309Annex B. Trail Smelter Arbitral Tribunal Decision, April 16, 1938 . . . . . . . . 314Annex C. Trail Smelter Arbitral Tribunal March 11, 1941, Decision . . . . . . 326Index Cambridge University Press337www.cambridge.org

Cambridge University Press0521856434 - Transboundary Harm in International Law: Lessons from the Trail Smelter ArbitrationEdited by Rebecca M. Bratspies and Russell A. MillerFrontmatterMore informationContributorsJames R. Allum is a Senior Consultant in the Chief Administrator’s Office forthe City of Winnipeg, where he is actively engaged in municipal environmentalmanagement issues. He holds a Ph.D. in Canadian and Environmental Historyfrom Queen’s University in Kingston, Ontario, and he remains active in academicsand the heritage community. He has taught in the Department of History at theUniversity of Winnipeg since 1999 and was appointed Chair of the ManitobaHeritage Council by the Minister of Culture, Heritage and Tourism in 2002. HisPh.D. thesis (Queen’s University, 1995) examined the environmental politics ofthe Trail Smelter dispute. He has published articles on environmental history inConservation and Environmentalism: An Encyclopedia as well as reviewed bookson environmental history and politics in the Urban History Review and the Queen’sJournal. He also has a long history of community and political activism; he hastwice been a candidate for the Parliament of Canada and was elected Presidentof the Manitoba New Democratic Party in March 2005.Mark Anderson is a Professor at the University of Idaho College of Law, wherehe teaches Business Associations, Antitrust, and Criminal Law. He has publishedin the fields of antitrust, business associations, and natural resource policy. Hereceived his B.A. from Macalester College in 1973 and his J.D. from the Universityof Chicago in 1977.Rebecca M. Bratspies is an Associate Professor of Law at the CUNY Schoolof Law. She lectures and publishes on the topics of genetically modified organisms, environmental liability, and international fisheries. She holds a B.A. inBiology from Wesleyan University and graduated with honors from the Universityof Pennsylvania Law School. She served as a law clerk to the Hon. C. Arlen Beamon the United States Eighth Circuit. As a 1994/95 Henry Luce Foundation Scholar,she spent a year as a legal advisor to the Republic of China Environmental Protection Administration and Ministry of Justice. With Russell Miller, she created andcontinues to convene the Annual Idaho International Law Symposium, whichwas launched with the proceedings that led to this book.xi Cambridge University Presswww.cambridge.org

Cambridge University Press0521856434 - Transboundary Harm in International Law: Lessons from the Trail Smelter ArbitrationEdited by Rebecca M. Bratspies and Russell A. MillerFrontmatterMore informationxiiContributorsNeil Craik is an assistant professor at the Faculty of Law, University of NewBrunswick, where he teaches and researches in the fields of international environmental law, domestic (Canadian) environmental law, and municipal and planninglaw. He holds degrees from McGill University (BA (hons.)), Dalhousie University(LLB), and University of Edinburgh (LL.M.), and he is an SJD candidate at theUniversity of Toronto. In addition to authoring journal articles on topics relatingto environmental matters, he is the coauthor of Canadian Municipal and Planning Law (2nd ed. 2004) and he is currently completing a manuscript on international commitments to conduct environmental impact assessments. Before hisacademic appointment, he practiced environmental law and municipal law atCassels Brock and Blackwell, LLP, in Toronto.Mark A. Drumbl is Associate Professor and Ethan Allen Faculty Fellow at theSchool of Law, Washington & Lee University, where he teaches public international law, global environmental governance, and transitional justice. His publications in the area of international law have appeared in a wide variety of periodicals,including legal journals such as the Michigan Law Review, Northwestern University Law Review, New York University Law Review, and the Criminal Law Forum;in social science journals such as Human Rights Quarterly and Third World Quarterly; and in a number of edited volumes. He has political science degrees fromMcGill University (B.A., M.A.) and law degrees from the University of Toronto(J.D.) and Columbia University (LL.M., S.J.D.). He is currently working on abook that explores state responsibility in the context of international crimes. Infall 2005, he was Visiting Fellow at University College, Oxford.Pierre-Marie Dupuy is Professor of Public International Law at the EuropeanUniversity Institute on leave from the University Panthéon-Assas, Paris II. He hasa Ph.D. in law from Paris II University (Docteur d’Etat en droit) and a graduate diploma from the Paris Institute of Political Studies (Paris). From 1990 to2000 he was the Director of the Institute for International Advanced Studies ofParis (Institut des Hautes Etudes Internationales de Paris). He has been a Visiting Professor at the University of Michigan School of Law, Ludwig Maximilian(Munich) University, and Complutense (Madrid) University. He has extensiveexperience as an advocate and counsel before the International Court of Justice.His main publications are the Manual of Public International Law (6th ed.),and he serves on the Board of Editors of the Revue Générale de Droit International Public. He is one of the founders of the European Journal of InternationalLaw. He gave the General Course of Public International Law at the HagueAcademy of International Law (L’unité de l’ordre juridique international) in theyear 2000.Jaye Ellis is an assistant professor in the Faculty of Law and School of Environment at McGill University where she teaches public international law, international environmental law, global environmental politics, and ethics and the Cambridge University Presswww.cambridge.org

Cambridge University Press0521856434 - Transboundary Harm in International Law: Lessons from the Trail Smelter ArbitrationEdited by Rebecca M. Bratspies and Russell A. MillerFrontmatterMore informationContributorsxiiienvironment. She has published on the precautionary principle, internationalfisheries law, rhetoric, and discourse ethics. She has conducted research at theMax Planck Institute for Comparative Public Law and Public International Lawin Heidelberg, Germany, and she has been a regular contributor to the Yearbookof International Environmental Law. She received a D.C.L. from McGill University, an LL.M. from the University of British Columbia, a B.C.L. and LL.B. fromMcGill University, and a B.A. (hons.) from the University of Calgary.Günther Handl is the Eberhard Deutsch Professor of Public International Lawat Tulane University Law School. He holds law degrees from the University ofGraz (Dr. iur.), Cambridge (LL.B.), and Yale (SJD). He is the founder and former Editor-in-Chief of the Yearbook of International Environmental Law and haspublished extensively in the field of public international law, international environmental law, and law of the sea. He is the recipient of a number of awards,including, in 1998, the Prix Elisabeth Haub for “exceptional achievements in thefield of international environmental law.” His article “Territorial Sovereignty andthe Problem of Transnational Pollution” was awarded the 1976 ASIL Francis DeakPrize, which recognizes a younger author for meritorious scholarship publishedin The American Journal of International Law.Holger P. Hestermeyer is a clerk with the Appellate Court in Hamburg, Germany.He is also pursuing a doctorate degree in law with the University of Hamburg(Germany). Before his clerkship he worked as a Research Assistant at the MaxPlanck Institute for Comparative Public Law and Public International Law,Heidelberg, Germany. He has published articles in the fields of public international law and technology law. He received his J.D. equivalent from MünsterUniversity Law School (Germany), an LL.M. from the University of California atBerkeley, and he is admitted as an attorney in New York. He is a former FulbrightFellow and a German National Merit Foundation Fellow.Cristina Hoss holds a graduate diploma and Ph.D. in law from the University ofParis II and a diploma of the Institute for International Advanced Studies (Institutdes Hautes Etudes Internationales de Paris). From 2000 to 2004 she served as aResearch Fellow at the Max Planck Institute for Comparative Public Law andPublic International Law in Heidelberg, Germany. She is currently an AssociateLegal Officer at the International Court of Justice in The Hague.James F. Jacobson is an attorney with Sasser & Inglis, P.C., a litigation firm inBoise, Idaho. He previously clerked for the Honorable Judge Darla S. Williamson,Chief District Judge for the Fourth District Court in the State of Idaho. He holdsa J.D. from the University of Idaho College of Law and a B.A. in English fromBrigham Young University.Eric L. Jensen is professor of soc

sovereignty of nation states. Using the Trail Smelter arbitration, one of the most cited cases in international environmental law, this book explores the changing nature of state responses to transboundary harm. Taking a critical approach, the book examines the arbitration’s influence on international law generally and international environ-

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