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Foreword
INTRODUCTION Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration
PERSPECTIVE
PART ONE: HISTORY AND LEGACY OF THE TRAIL SMELTER ARBITRATION
PART TWO: TRAIL SMELTER AND CONTEMPORARY TRANSBOUNDARY HARM
PART THREE: TRAIL SMELTER AND TRANSBOUNDARY HARM BEYOND THE ENVIRONMENT
RÉSUMÉ: TRAIL SMELTER AS MECHANISM FOR CONCEPTUALIZING TRANSBOUNDARY HARM
PART ONE The Trail Smelter Arbitration - History, Legacy, and Revival
HISTORY
1 "An Outcrop of Hell": History, Environment, and the Politics of the Trail Smelter Dispute
SMOKE EATERS
SMOKE AND MIRRORS
SMOKE ZONES
THE SMOKING GUN
2 The Trail Smelter Dispute [Abridged]
ROOTS AND LEGACY
3 Of Paradoxes, Precedents, and Progeny: The Trail Smelter Arbitration 65 Years Later
PARADOXES
PRECEDENT
DAMAGE
THE RULE
THE PROGENY
CONCLUSION
4 Pollution by Analogy: The Trail Smelter Arbitration [Abridged]
THE TRIBUNAL FINDS THE LAW
The Question
The Answer
The Analogy in Theory
The “Just” Solution
The Results
CONCLUSION
5 Has International Law Outgrown Trail Smelter?
INTRODUCTION
BACKGROUND: THE TRAIL SMELTER ARBITRATION
A REVIEW OF THE DIFFICULTIES – STATE RESPONSIBILITY
ALTERNATIVE APPROACHES TO INTERPRETATION
Equitable Balancing of Interests
Developments in Conventional International Law
CONCLUSIONS: CONTRIBUTIONS OF TRAIL SMELTER
6 The Flawed Trail Smelter Procedure: The Wrong Tribunal, the Wrong Parties, and the Wrong Law
INTRODUCTION
TRAIL SMELTER AS AN ATTEMPT TO ADDRESS PRIVATE INTERNATIONAL ENVIRONMENTAL HARM
THE FLAWS OF THE TRAIL SMELTER PROCEDURE
The Wrong Tribunal
The Wrong Parties
The Wrong Law
THE ROAD AWAY FROMTRAIL SMELTER
7 Rereading Trail Smelter
8 Trail Smelter and the International Law Commission's Work on State Responsibility for Internationally Wrongful Acts and State Liability
INTRODUCTION
OVERVIEW OF THE DRAFT ARTICLES ON STATE RESPONSIBILITY
TRAIL SMELTER AND THE DRAFT ARTICLES ON STATE RESPONSIBILITY
The Continuation of the Obligation to Prevent a Wrongful Act
Special Measures to Guarantee Nonrepetition
Remoteness of Harm
Compensation for Reduction in Property Value
TRAIL SMELTER, STATE RESPONSIBILITY, AND INTERNATIONAL ENVIRONMENTAL LAW
TRAIL SMELTER AND THE COLLATERAL TOPIC OF STATE LIABILITY
CONCLUSION
9 Derivative versus Direct Liability as a Basis for State Liability for Transboundary Harms
INTRODUCTION
DERIVATIVE LIABILITY EXPLAINED
DIRECT LIABILITY EXPLAINED
EXPLORING CANADA’S DERIVATIVE LIABILITY IN THE TRAIL SMELTER ARBITRATION
EXPLORING CANADA’S DIRECT LIABILITY IN THE TRAIL SMELTER ARBITRATION
CONCLUSION
RETURN TO TRAIL
10 Transboundary Pollution, Unilateralism, and the Limits of Extraterritorial Jurisdiction: The Second Trail Smelter Dispute
INTRODUCTION
CONTRAST: THE TWO TRAIL SMELTER DISPUTES
The Trail Smelter Arbitration of 1938 and 1941
The Contemporary Dispute over the Trail Smelter
CONFLUENCE: EXTRATERRITORIAL JURISDICTION
CONCLUSION
PART TWO Trail Smelter and Contemporary Transboundary Harm - The Environment
11 Trail Smelter in Contemporary International Environmental Law: Its Relevance in the Nuclear Energy Context
INTRODUCTION
SOME GENERAL OBSERVATIONS ON THE TRAIL SMELTER ARBITRATION
The Trail Smelter Dictum as a Principle of Customary International Law
The Utility of the Trail Smelter Threshold
TRAIL SMELTER AND THE MANAGEMENT OF SIGNIFICANT TRANSBOUNDARY NUCLEAR RISKS
CONCLUSION
12 Through the Looking Glass: Sustainable Development and Other Emerging Concepts of International Environmental Law in the Gabcikovo-Nagymaros Case and the Trail Smelter Arbitration
INTRODUCTION: LESSONS FROM THE PAST REFLECTING INTO THE FUTURE
THE DANUBE DAM CASE
THE EVOLUTION OF SUSTAINABLE DEVELOPMENT AND RELATED CONCEPTS
Sustainable Development in International Law
The Necessity of an Environmental Impact Assessment
Basic Framework of an Environmental Impact Assessment
International Support for an Environmental Impact Assessment
Environmental Monitoring to Ensure Future Sustainability
THE TRAIL SMELTER ARBITRATION AS A REFLECTION OF THE FUTURE
Sustainable Development in the Trail Smelter Arbitration
Environmental Impact Assessment and Continued Monitoring in Trail Smelter
CONCLUSION
13 Trail Smelter's (Semi) Precautionary Legacy
INTRODUCTION
THE PRECAUTIONARY PRINCIPLE
TRAIL SMELTER’S (SEMI) PRECAUTIONARY LEGACY
GMOs as an Example of the Precautionary/Quantitative Divide
International Decision Making, Precaution, and GMOs
Regulating GMOs through a (Semi) Precautionary Lens
CONCLUSION
14 Surprising Parallels between Trail Smelter and the Global Climate Change Regime
INTRODUCTION
NONSTATE ACTORS
DYNAMIC REGIMES
CONCLUSION
15 Sovereignty's Continuing Importance:Traces of Trail Smelter in the International Law Governing Hazardous Waste Transport
INTRODUCTION
BACKGROUND: THE TRAIL SMELTER ARBITRATION AND PERMANENT SOVEREIGNTY
INTERNATIONAL ENVIRONMENTAL LAW ON TRANSBOUNDARY HAZARDOUS WASTE TRANSPORT
The Problem: The Hazardous Waste Challenge
The International Law: From Cairo to Basel
Beyond Basel: The Basel Ban and Liability Protocol
TRACES OFTHE TRAIL SMELTER ARBITRATION IN THE BASEL CONVENTION
CONCLUSION
16 The Legacy of Trail Smelter in the Field of Transboundary Air Pollution
INTRODUCTION
BILATERAL CHARACTER OF THE DISPUTE
RADIOACTIVE CONTAMINATION
PROCEDURAL DIFFICULTIES IN ADJUDICATING A MULTIPARTY PROBLEM
RECOVERABLE CATEGORIES OF LOSS
A REGULATORY REGIME?
CONCLUSION
17 The Impact of the Trail Smelter Arbitration on the Law of the Sea
INTRODUCTION
DEVELOPMENT OF INTERNATIONAL MARINE ENVIRONMENTAL LAW
MARINE ENVIRONMENTAL PROTECTION AND THE TRAIL SMELTER ARBITRATION
TRAIL SMELTER WITHIN THE LAW OF THE SEA
CONCLUSION
PART THREE Trail Smelter and Contemporary Transboundary Harm - Beyond the Environment
18 Trail Smelter and Terrorism: International Mechanisms to Combat Transboundary Harm
INTRODUCTION
INTERNATIONAL LAW AND TRANSBOUNDARY ENVIRONMENTAL HARM
Responsibility Versus Liability
The Content of Due Diligence Obligations in Environmental Law
INTERNATIONAL LAW ON TERRORISM
Due Diligence in the Context of Terrorism
State Terrorism and Issues of Attribution
State Control
Endorsement
CONCLUSION
19 The Conundrum of Corporate Social Responsibility: Reflections on the Changing Nature of Firms and States
INTRODUCTION
PUBLIC VERSUS PRIVATE ORDERING: WHAT WE KNOW AND WHAT WE DON’T KNOW ABOUT REGULATORY LAW
Legacies and Legends of Trail Smelter in International Environmental Law
REGULATION AND DISPERSED KNOWLEDGE
THE OTHER SIDE OF TRAIL SMELTER:TRACING NARRATIVES OF CORPORATE RESPONSIBILITIES
What’s in a Firm? Unfolding the Conundrum of State Responsibility
Postheroic Management
20 A Pyrrhic Victory: Applying the Trail Smelter Principle to State Creation of Refugees
INTRODUCTION
THE TRAIL SMELTER PRINCIPLE
REFUGEE LAW AND CURRENT FLOWS ACROSS INTERNATIONAL BORDERS
APPLYING TRAIL SMELTER TO CREATION OF REFUGEES
Imputing Acts Creating Refugees to States under Trail Smelter
Harm to the Nonrefouling Host State
The Impenetrable Problem of Measuring Damages
Unintended Consequences of Applying Trail Smelter to the Refugee Context and Potential Solutions
CONCLUSION
21 Transboundary Harm: Internet Torts
INTRODUCTION
THE YAHOO! CASE
INTERNET JURISDICTION IN THE UNITED STATES
INTERNET JURISDICTION FOR TORTS IN GERMANY
THE SOLUTION: AN INTERNATIONAL CONVENTION ON INTERNET JURISDICTION
WHY PRIVATE INTERNATIONAL LAW FAILED IN TRAIL SMELTER
22 International Drug Pollution? Reflections on Trail Smelter and Latin American Drug Trafficking
INTRODUCTION
LEGAL THEORY AND THE TRAIL SMELTER ARBITRATION
LATIN AMERICAN DRUG TRAFFICKING – FRAMING AND LEGAL THEORY
COSTS OF LATIN AMERICAN DRUG TRAFFICKING
Costs in Consumer States
Costs in Producer States
TRAIL SMELTER CLAIMS UNLIKELY
Distribution Chain Causality
IMPLICATIONS
State Inequalities
Home/Host Variations
CONCLUSION
23 Application of International Human Rights Conventions to Transboundary State Acts
INTRODUCTION
JURISDICTION UNDER THE ECHR
The Bankovic Case
REDEFINING JURISDICTION
Extraterritorial Acts and the Abuse of Rights
The Legality of the State’s Extraterritorial Act under General International Law
Authority and Control
Presumption of Control over the Persons and Objects in Occupied Territory
Control over Persons or Objects
Control through Intentional State Acts that Directly Affect Persons
Summarizing the New Criteria for Jurisdiction
CONCLUSION
ANNEX A Convention Between the United States of America and the Dominion of Canada Relative to the Establishment of a Tribunal to Decide Questions of Indeminty and Future Regime Arising from the Operation of Smelter at Trial, British Columbia
ARTICLE I
ARTICLE II
ARTICLE III
ARTICLE IV
ARTICLE V
ARTICLE VI
ARTICLE VII
ARTICLE VIII
ARTICLE IX
ARTICLE X
ARTICLE XI
ARTICLE XII
ARTICLE XIII
ARTICLE XIV
ANNEX B Trail Smelter ARBITRAL TRIBUNAL DECISION, April 16, 1938
PART TWO
PART THREE
PART FOUR
ANNEX C Trail Smelter Arbitral Tribunal March 11, 1941, Decision