This page intentionally left blank transboundary harm in international law Many harms flow across the ever-more porous sovereign borders of a globalizing world These harms expose weaknesses in the international legal regime built on 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 environmental law specifically In particular, the book explores whether there are lessons from Trail Smelter that are useful for resolving transboundary challenges currently confronting the international community The book collects the commentary of a distinguished set of international law scholars who consider the history of the Trail Smelter arbitration, its significance for international environmental law, its broader relationship to international law, and its resonance in fields beyond the environment Rebecca M Bratspies holds a B.A in Biology from Wesleyan University and graduated with honors from the University of Pennsylvania Law School, where she was elected to the Order of the Coif and awarded the Green Prize for Excellence in Torts She was named a Luce Foundation Scholar and Seconded to Taiwan’s Ministry of the Environment Her scholarly research focuses on environmental regulatory regimes; she is particularly interested in the international dimensions of environmental regulation and the role of nonstate actors She currently holds an associate professorship of law at CUNY School of Law where she teaches environmental, property, and administrative law While on the faculty at the University of Idaho College of Law, she cofounded, with Russell Miller, the Annual Idaho International Law Symposium The inaugural symposium 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 a frequent Visiting Scholar at the Max Planck Institute for Comparative Public Law and Public International Law Professor Miller is the cofounder and Co-Editor-in-Chief of the German Law Journal (http://www.germanlawjournal.com) He is also the coeditor of the Annual of German & European Law and the coauthor of the forthcoming third edition of The Constitutional Jurisprudence of the Federal Republic of Germany With Rebecca Bratspies he cofounded the Annual Idaho International Law Symposium The inaugural symposium gave rise to this book Transboundary Harm in International Law Lessons from the Trail Smelter Arbitration Edited by Rebecca M Bratspies CUNY School of Law Russell A Miller University of Idaho College of Law cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge cb2 2ru, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521856430 © Cambridge University Press 2006 This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press First published in print format 2006 isbn-13 isbn-10 978-0-511-24534-3 eBook (EBL) 0-511-24534-3 eBook (EBL) isbn-13 isbn-10 978-0-521-85643-0 hardback 0-521-85643-4 hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate For my uncle Dennis Replansky – who loved the law Rebecca M Bratspies * * * To my parents, for giving me the gift of the breathtaking rivers of the American northwest Who would have thought those rivers might one day flow out into the world like this? It pleases me, loving rivers Loving them all the way back to their source Raymond Carver, Where Water Comes Together with Other Water, Where Water Comes Together with Other Water: Poems 17 (1986) Russell A Miller Contents Contributors Acknowledgments Foreword by David D Caron page xi xvii xix Introduction Rebecca M Bratspies and Russell A Miller PART ONE THE TRAIL SMELTER ARBITRATION – HISTORY, LEGACY, AND REVIVAL History “An Outcrop of Hell”: History, Environment, and the Politics of the Trail Smelter Dispute 13 James R Allum The Trail Smelter Dispute [Abridged] 27 John E Read Roots and Legacy Of Paradoxes, Precedents, and Progeny: The Trail Smelter Arbitration 65 Years Later 34 Stephen C McCaffrey Pollution by Analogy: The Trial Smelter Arbitration [Abridged] 46 Alfred P Rubin Has International Law Outgrown Trail Smelter? 56 Jaye Ellis The Flawed Trail Smelter Procedure: The Wrong Tribunal, the Wrong Parties, and the Wrong Law 66 John H Knox vii viii Contents Rereading Trail Smelter [Abridged] 79 Karin Mickelson Trail Smelter and the International Law Commission’s Work on State Responsibility for Internationally Wrongful Acts and State Liability 85 Mark A Drumbl Derivative versus Direct Liability as a Basis for State Liability for Transboundary Harms 99 Mark Anderson Return to Trail 10 Transboundary Pollution, Unilateralism, and the Limits of Extraterritorial Jurisdiction: The Second Trail Smelter Dispute 109 Neil Craik 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 125 ă Gunther Handl 12 Through the Looking Glass: Sustainable Development and Other Emerging Concepts of International Environmental Law in the Gabˇcikovo-Nagymaros Case and the Trail Smelter Arbitration 140 James F Jacobson Trail Smelter’s (Semi) Precautionary Legacy 153 Rebecca M Bratspies 13 14 15 16 17 Surprising Parallels between Trail Smelter and the Global Climate Change Regime 167 Russell A Miller Sovereignty’s Continuing Importance: Traces of Trail Smelter in the International Law Governing Hazardous Waste Transport 181 Austen L Parrish The Legacy of Trail Smelter in the Field of Transboundary Air Pollution 195 Phoebe Okowa The Impact of the Trail Smelter Arbitration on the Law of the Sea 209 Stuart B Kaye 1941 Trail Smelter Arbitral Decision 333 regime accordingly Further, under this paragraph, the regime may be suspended if the elimination of sulphur dioxide from the fumes should reach a stage where such a step could clearly be taken without undue risks to the United States’ interests Since the Tribunal has the power to establish a regime, it must equally possess the power to provide for alteration, modification or suspension of such regime It would clearly not be a “solution just to all parties concerned” if its action in prescribing a regime should be unchangeable and incapable of being made responsive to future conditions (j) The foregoing paragraphs are the result of an extended investigation of meteorological and other conditions which have been found to be of significance in smoke behavior and control in the Trail area The attempt made to solve the sulphur dioxide problem presented to the Tribunal has finally found expression in a regime which is how prescribed as a measure of control The investigations made during the past three years on the application of meteorological observations to the solution of this problem at Trail have built up a fund of significant and important facts This is probably the most thorough study ever made of any area subject to atmospheric pollution by industrial smoke Some factors, such as atmospheric turbulence and the movement of the upper air currents have been applied for the first time to the question of smoke control All factors of possible significance, including wind directions and velocity, atmospheric temperatures, lapse rates, turbulence, geostrophic winds, barometric pressures, sunlight and humidity, along with atmospheric sulphur dioxide concentrations, have been studied As said above, many observations have been made on the movements and sulphur dioxide concentrations of the air at higher levels by means of pilot and captive balloons and by airplane, by night and by day Progress has been made in breaking up the long ‘winter fumigations and in reducing their intensity In carrying finally over to the non-growing season with a few minor modifications a regime of demonstrated efficiency for the growing season, there is a sound basis for confidence that the winter fumigations will be kept under control at a level well below the threshold of possible injury to vegetation Likewise, for the growing season a regime has been formulated which should throttle at the source the expected diurnal fumigations to a point where they will not yield concentrations below the international boundary sufficient to cause injury to plant life This is the goal which this Tribunal has set out to accomplish [The Tribunal here discussed the details of the operational regime it intended to impose on the Trail Smelter The regime included monitoring and recordkeeping requirements, as well as setting maximum permissible sulphur emissions under a variety of seasonal and weather condition.] 334 Annex C section While the Tribunal refrains from making the following suggestion a part of the regime prescribed, it is strongly of the opinion that it would be to the clear advantage of the Dominion of Canada, if during the interval between the date of filing of this Final Report and December 31, 1942, the Dominion of Canada would continue, at its own expense, the maintenance of experimental and observational work by two scientists similar to that which was established by the Tribunal under its previous decision, and has been in operation dining the trial period since 1938 It seems probable that a continuance of investigations until at least December 31, 1942, would provide additional valuable data both for the purpose of testing the effective operation of the regime now prescribed and for the purpose of obtaining information as to the possibility or necessity of improvements in it The value of this trial period has been acknowledged by each Government [The Tribunal here cited various acknowledgements of this point by both governments] part five The fourth question under Article III of the Convention is as follows: What indemnity or compensation, if any, should be paid on account of any decision or decisions rendered by the Tribunal pursuant to the next two preceding Questions? The Tribunal is of opinion that the prescribed regime will probably remove the causes of the present controversy and, as said before, will probably result in preventing any damage of a material nature occurring in the State of Washington in the future But since the desirable and expected result of the regime or measure of control hereby required to be adopted and maintained by the Smelter may not occur, and since in its answer to Question No 2, the Tribunal has required the Smelter to refrain from causing damage in the State of Washington in the future, as set forth therein, the Tribunal answers Question No and decides that on account of decisions rendered by the Tribunal in its answers to Question No and Question No there shall be paid as follows: (a) if any damage as defined under Question No shall have occurred since October 1, 1940, or shall occur in the future, whether through failure on the part of the Smelter to comply with the regulations herein prescribed or notwithstanding the maintenance of the regime, an indemnity shall be paid for such damage but only when and if the two Governments shall make arrangements for the disposition of claims for indemnity under the provisions of Article XI of the Convention; (b) if as a consequence of the decision of the Tribunal in its answers to Question No and Question No 3, the United States shall find it necessary to 1941 Trail Smelter Arbitral Decision 335 maintain in the future an agent or agents in the area in order to ascertain whether damage shall have occurred in spite of the regime prescribed herein, the reasonable cost of such investigations not in excess of $7,500 in any one year shall be paid to the United States as a compensation, but only if and when the two Governments determine under Article XI of the Convention that damage has occurred in the year in question, due to the operation of the Smelter, and “disposition of claims for indemnity for damage” has been made by the two Governments; but in no case shall the aforesaid compensation be payable in excess of the indemnity for damage; and further it is understood that such payment is hereby directed by the Tribunal only as a compensation to be paid on account of the answers of the Tribunal to Question No and Question No (as provided for in Question No 4) and not as any part of indemnity for the damage to be ascertained and to be determined upon by the two Governments under Article XI of the Convention part six Since further investigations in the future may be possible under the provisions of Part Four and of Part Five of this decision, the Tribunal finds it necessary to include in its report, the following provision: Investigators appointed by or on behalf of either Government, whether jointly or severally, and the members of the Commission provided for in Paragraph VI of Section of Part Four of this decision, shall be permitted at all reasonable times to inspect the operations of the Smelter and to enter upon and inspect any of the properties in the State of Washington which may be claimed to be affected by fumes This provision shall also apply to any localities where instruments are operated under the present regime or under any amended regime Wherever under the present regime or under any amended regime, instruments have to be maintained and operated by the Smelter on the territory of the United States, the Government of the United States shall undertake to secure for the Government of the Dominion of Canada the facilities reasonably required to that effect The Tribunal expresses the strong hope that any investigations which the Governments may undertake in the future, in connection with the matters dealt with in this decision, shall be conducted jointly (Signed) jan hostie (Signed) charles warren (Signed) r a e greenshields Index 49th parallel, 18, 21 1951 Convention, 261–263 1967 Protocol, 257–258, 261, 263 affirmative regulatory duties, 282 Africa, 284 African Union, 145 Agenda 21, 148 Ago, Special Rapporteur, 89 Air Quality Agreement between Canada and the United States (1991), 207–208 Article IV of, 208 protocols on sulphur and nitrogen emissions of, 208 Air Services Agreement (1979), 90 airshed, just allocation of shared, 37 Al Quaeda terrorists, 305 American Smelting and Refining Company, 21 Amoco Cadiz, 209 Andes, 286 Argentina, 284 Asculum, 266 Australia, 135, 200 balancing of interests, 61–64, 82–83, 119, 199, 230–231, 241 Bamaka Convention, 155 Bankovic, 296, 298–300 Barboza, Special Rapporteur, 62 Barcelona Traction (1970), 90 Basel Ban (1995), 190 Basel Convention on the Transboundary Movement of Hazardous Waste (1989), 189–193, 219 provisions of, 191–192 and the Trail Smelter arbitration, 191–194 Beesley, Alan, 43 Belize, 291 “beneficial use,” 19 Bennett, Prime Minister R B., 21 bilateral relations between states, 83 Biosafety Protocol, See Convention on Biological Diversity Birnie, Patricia, 130, 179 Bolivia, 284 Boundary Waters Treaty (1909), 38 Article of, 28 Boyle, Alan, 63, 130, 179 Brazil, 284 British Property in Spanish Morocco (1925), 232 Bundesgerichtshof (BGH, Federal Court of Justice), 275 Cairo Guidelines (1987), 189 Calder v Jones, 273 337 338 CAN See Climate Change Network Canadian Pacific, 13 Caron, David, 89 Cartagena Protocol on Biosafety See Convention on Biological Diversity causality in drug trafficking, 290–291 in Trail Smelter, 290 CERCLA See Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Chambers, W Bradnee, 179–180 Chernobyl, 135, 196, 201, 202 Chevron (1984), 246 Chile, 284 Citizens Protective Association (CPA), 17, 21–22, 82, 169–170 Clarke, Justice Lorne, 50–51 “clash of sovereignities,” 37, 40 CLC See Convention on Civil Liability for Oil Pollution Damage “clear and convincing” evidence, 39, 126, 195, 214, 260 Climate Change Network (CAN), 172 Climate Change Treaty, 156 Coase, Ronald, 37 cocaine, 284 Code Penal, Article R 645-1 of, 269–270 Coleville Indians, 113 Columbia, 284, 290, 291 Cominco See Consolidated Mining and Smelting Company Commission on Environmental Law of the World Conservation Union (IUCN), 44 Commission on Sustainable Development (CSD), 148 compensation See also damage, liability, state liability, Trail Smelter compensation Index as a response to transboundary pollution damage, 57 Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 109–121 Consolidated Mining and Smelting Company, 13–14, 170–171 and emissions standards, 17 and restrictions on production, 22–23 Convention for the Prevention and Punishment of Terrorism (1937), 234 Convention of the Law of the Sea (1982), 212–213 Part XII of, 212–213, 217, 218 Part XV of, 217 Article 56 of, 216 Article 56(1)(b)(iii), 216 Article 192 of, 218 Articles 192 and 193 of, 43 Article 194(2), 217 Article 195 of, 217–218 Article 196 of, 217 Article 219 of, 220 Article 221 of, 220 Article 235 of, 213 Convention on Biological Diversity (CBD), 155 Article of, 41 Cartegena Protocol on Biosafety, 155, 161–162, 163, 164–166 Convention on Civil Liability for Oil Pollution Damage (CLC, 1969, amended 1992), 77 Convention on Environmental Impact Assessment in a Transboundary Context (EIA Convention), 147, 148, 149 Article 2(3) of, 147 Article 3(7) of, 147 Article of, 147 Index Convention on Non-Navigational Uses of International Watercourses (1997), 44 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 147–148 Article of, 147 Article of, 147 Convention on Transboundary Air Pollution, Article of, 196 Convention Pertaining to the Status of Refugees (1951), 257–258 Corbin, Arthur L., 263 Corfu Channel (United Kingdom v Albania), 61, 80, 84, 90, 185, 226, 232–233, 239 Corporate Social Responsibility (CSR), 250 Council Regulation (EC) No 44/2001, 273 CPA See Citizen’s Protective Association (CPA) Crawford, Special Rapporteur James, 86, 89 CSR See Corporate Social Responsibility (CSR) Cyprus, 297, 303 damage, 38–39, 54–55 See also compensation; liability, state liability defining the substance of, 49 as direct, measurable injury, 53, 181 level considered wrongful, 39–40 physical, 54 proof of, and identification of its cause, 81–82 as a regulatory tool, 154 Danube Dam case (Gabˇcikovo-Nagymaros Project, Hungary/Slovakia), 140–151 See also Gabˇcikovo-Nagyramos (1997) history of, 140–143 339 protocols in, 141 and “state of necessity,” 142–143 and sustainable development, 144–146 “Variant C” of, 141, 143 Dar es Salaam See Tanzania Department of External Affairs, 21 Desertification Convention, 42 diligentia quam in suis, 232 “do no harm” principle, 157–159 Draft Articles on Prevention of Transboundary Harm from Hazardous Activities (2001), 62–63, 95–98, 106–107, 113, 131, 137–139 Article of, 131 Article 12 of, 131 Draft Articles on the Law of the Non-Navigational Uses of International Watercourses, Article of, 131 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, 85–98, 142, 259 See also International Law Commission (ILC) Article of, 237 Article 14 of, 91 Article 30 of, 91–92 Article 31 of, 92 Article 36 of, 92–93 drug trafficking and causality, 290–291 consumer states, 283, 285–286 cost of Latin American, 284–287 defined, 283 harm, 293 and jurisdiction, 287 Latin American countries involved with, 284 producer states, 283, 286–287 and state liability, 283 and Trail Smelter, 288, 289 Drumbl, Mark, 153 340 due diligence, 115, 132, 226, 227 in environmental law, 228–231 and terrorism, 232–236 Eagleton, Clyde, 59–60 ECE Convention for Long-range Transboundary Air Pollution (1979), 207 Article of, 207 Article of, 207 EC-Hormones (WTO Panel, U.S.), 164 ecstasy, 284 EEZ See Exclusive Economic Zone (EEZ) effects doctrine, 117–120 EIA Convention See Convention on Environmental Impact Assessment in a Transboundary Context (EIA Convention) emission standards See Consolidated Mining and Smelting Company and emission standards environmental impact assessment, 146–148 Environmental Protection Agency (EPA), 109–121 Europe, 284 European Commission of Human Rights (ECommHR), 296–307 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 295 European Court of Human Rights (ECourtHR), 266, 296–307 Article of, 296–300, 302–303, 305, 306–307 Article of, 305–306 Article 17 of, 301 jurisdiction under, 296–307 and state responsibility, 303–307 European Union, 156 Article of the Treaty of the, 145 Index Article 174 of the Treaty of the, 146 European-Asbestos, 164 Exclusive Economic Zone (EEZ), 215, 216–217 Exxon Valdez, 210, 219 Factory at Chorzow case (1927–28), 90, 92 Fangataufa, 199 “flag-of-convenience” states, 219 Framework Convention on Climate Change, 42, 155 France, 199 Frank, Jerome, 177 Friedmann, Wolfgang, 178 Friendly Relations Declaration (1970), 234 Gabˇcikovo-Nagymaros Project (Hungary/Slovakia), 86, 90, 204 See also Danube Dam case Geist, Professor Michael, 272, 273 General Assembly Resolution 2995 (1972), 95 genetically modified organisms (GMOs), 154, 159–166 US government position on, 160 WTO action challenging European Union’s policy on, 165–166 Geneva Conventions on the Law of the Sea (1958), 42 Georgia v Tennessee Copper Co., 51 Gesetz gegen den unlauteren Wettbewerb (UWG – Law against Unfair Competition), 274 Section 14 paragraph of, 275, 277 global climate change, 171–180 Global Climate Coalition, 174 Global Climate Information Project, 174 good-neighborliness See sic tuo ut alienum non laedas Guantanamo Bay, Cuba, 303 Index Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, 278–279 Handl, Gunther, 86, 185 Hanson v Denckla, 271, 275 harm principle, 37, 110, 112, 115, 119, 153, 197 and no-significant-harm obligation, 127–129 “significant, substantial, or appreciable” 129–139 Harmon, United States Attorney Judson General, 37 Harmon Doctrine, 184 Hartford Insurance, 118 hazardous waste cost of disposal of, 187 defined by volume generated, 187 hazardous waste transport, and international environmental law, 186–194 Henkin, Louis, 178 Heraclea, 266 heroin, 284 Higgins, Rosalyn, 117, 231 Holmes, Justice Oliver Wendell, 50, 51 Howes, Dean, 28 Huber, Max, 232 Ignatio-Pinto, Judge, 135 Imaginarium, 272–273 Imaginarium, 273 imagniariumnet.com, 272 industrial zones, 20 “inequitable use,” 130 Inter-American Court of Human Rights, 266 Intergovernmental Panel on Climate Change (IPCC), 1995 report of, 174 International Council of Environmental Law, 44 341 International Court of Justice (ICJ), 42, 127, 226 Advisory Opinion in Legality of the Threat or Use of Nuclear Weapons (1996), 42, 127, 142 judgment on the Gabˇcikovo-Nagymaros Project, 42, 127 Statute of, 202 International Covenant on Environment and Development, 44 International Criminal Tribunal for the Former Yugoslavia, 237 international human rights law, 184 International Joint Commission (IJC), 15, 27, 38, 39, 197, 232 and compensation, 28 Febuary 28, 1931 report of, 28 Settlement by, 22 international law and private actors, 71–73 and terrorism, 231–239 Westphalian view of, 226 International Law Commission (ILC), 42–44, 56, 62–63, 78, 227–231 See also Draft Articles on State Responsibility Report of the Working Group on International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law, 218 International Law Commission (ILC) on the Non-Navigational Uses of International Watercourses, 195 International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law, 43 international regimes, 244–253 international terrorism and transboundary environmental pollution, 225 International Tribunal on the Law of the Sea, 221 342 “internationally wrongful acts” defined, 85 forms of, 88 internet, jurisdiction over, 271–277 “invisible injury,” 25–26, 175 Iraq, 300 Ireland, 136–137 Issa, 300, 302 IUCN See Commission on Environmental Law of the World Conservation Union Jamaica, 291 Japan-Agricultural Products (WTO Panel, Japan), 163 Jenks, Wilfred, 52 jurisdiction and drug trafficking, 287 and the European Court of Human Rights (ECourtHR), 296–307 and internet, in Germany, 273–277 and internet, in the US, 271–273 and multinational enterprises, 293 “just solution,” 165, 166, 199 Kammergericht (Higher Regional Court Berlin), 275 Kettle Falls, Washington, 18 Khomeini, Ayatollah, 238 King, Prime Minister, Mackenzie, 21 Kirgis, Frederic, 133 Knox, John, 87, 279 Koskenniemi, Martti, 177–178 Kummer, Katharina, 193 Kyoto Protocol, 171, 244 Lac Lanoux (Lac Lanoux Arbitration (Spain v France, 1957), 185 LaGrand (Germany v United States of America, 2001), 90 Index Lake Lanoux, 80, 84 Lake Roosevelt, 113, 115 Landgericht Munchen I (Regional Court of Munich), 275 ă ¨ Landgericht Nurnberg-F urth (Regional ¨ ¨ Court of Nurnberg-F urth), 275 Laswell, Harold, 178 Leaden, Joe, 169 Legality of Use by a State of Nuclear Weapons in Armed Conflicts, 229 liability, 218 See also compensation; damage; state liability; Trail Smelter compensation agreements on civil, in the Convention of the Law of the Sea (1982), 213 corporate social, 240–253 derivative, Canada’s, in Trail Smelter arbitration, 103–104 derivative, defined, 100–102 direct, Canada’s, in Trail Smelter arbitration, 105–107 direct, defined, 102–103 international, and prevention, 227 premise of international, 227–228 and responsibility, 227–228 Liability for Injurious Consequences of Acts not Prohibited by International Law, 196 Llewellyn, Karl, 177, 178 local action rule, 35 Logan Act, 170 Loizidou v Turkey (1995–96), 90 London Convention, 211, 212, 219 loss, recoverable categories of, 204–205 Lugano Convention, 273 MacNab, Francis, 14 maethamphetamine, 284 marijuana, 284 marine environmental law, development of, 210–213 Index MARPOL 73/78, 210–212, 219–220 Marshall, John, 40 Mathews, Jessica, 171 McCaffrey, Steve, 87 McDougal, Myres, 178 Menchen, H.L., 37 Mexico, 291 Mickelson, Karen, 112 Miller, Dean, 28 Miller, Russell, 153, 243 Missouri v Illinois, 50 Model Penal Code, 101–102 Montreal Protocol on Substances that Deplete the Ozone Layer, 94 MOX Plant, 136, 221 Mururoa Atoll, 199 National Research Council of Canada, 21 North Atlantic Treaty Organization (NATO), 298 Nedelsky, 19 “neighborhood” law (good neighborliness principle) See sic tuo ut alienum non laedas Nelson, British Columbia (Canada), 28 nemo tenetur ad impossible, 135 New York v New Jersey, 50–51 New Zealand, 135–136, 200 Nicaragua v U.S (1986) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America, 1986)”], 90, 233–234, 236, 237–238 “no-harm” principle, 181, 183 non liquet, 36, 73 non-government organizations (NGOs) See also non-state actors; private actors and global climate change treaties, 171–172 343 Non-Navigational Uses of International Watercourses (1994), 43 non-refouling state, 258 non-refoulment, 262 non-state actors, 168–174, 226 See also non-government organizations (NGOs); private actors Northport, Washington (United States), 18, 23, 28 Nuclear Civil Liability Conventions, 205 Nuclear Safety Convention Article of, 133 Chapter 22 of Article 21 of, 134 Nuclear Tests Case (New Zealand v France, 1973), 156, 200 nuclear tests, atmospheric, by the United Kingdom and the United States, 199–202 nuisance, common law of, 40, 53, 57, 69, 73–74, 282 Oberlandesgericht Bremen (Higher Regional Court Bremen), 276 Oberlandesgericht Frankfurt (Higher Regional Court Frankfurt), 276 Oberlandesgericht Hamburg (Higher Regional Court Hamburg), 277 Oberlandesgericht Munchen (Higher Regional Court Munich), 276 ă Ocalan v Turkey, 300 OILPOL 54, 210 Parrish, Austen, 106 Permanent Court of International Justice (PCIJ), 35 permanent regime, 256 Peru, 284, 291 Pichler, 276 “polluter pays” principle, 99, 110, 116 pollution, air, and international law precedents, 48 344 polycausality, 24 POPs Treaty, 155 Power Shift (Mathews), 171 precautionary principle, 154–159, 244 and quantitative risk assessment, 157, 159 See also (semi)precautionary principle Preiss, Erica, 146 prevention, and international liability, 227 Prevention of Transboundary Harm from Hazardous Activities, 43, 228 Article of, 229 principle of comity, 118 principle of good neighborliness See sic tuo ut alienum non laedas private actors, 71–73, 233, 238–239, 292 See also non-government organizations (NGOs); non-state actors private responsibility, 248 and human rights law, 296 Protocol on Liability and Compensation (1999), 190 Pyrrhic Victory, 266 Pyrrhic War, 266 Pyrrus, King of Epirus, 266 quantitative risk assessment, 157 See also precautionary principle Quentin-Baxter, Special Rapporteur Robest, 139 Radio Televizije Srbije (RTS), 298 radioactive contamination, 199–202 Rainbow Warrior (1990), 90 Rao, Special Rapporteur Pemmaraju Sreenivasa, 227 Read, John, 36, 38, 52, 72, 74 Red Sky at Morming (Speth), 172 refugees Burundi, 262 Haitian, 262 Index impact on host communities, 260–261 law of, 257–258 as “population of concern” in 2004, 258 Rwandan, 262 and state responsibility, 254, 259–261 and Trail Smelter, 258–267 Report of the Brundtland Commission’s Expert Group on Environmental Law (1987), 44 Resolution 49/60 (1994), 235 responsibility corporate social, 240–253 and liability, 227–228 polititical economy of corporate, 249–253 responsiveness, 247 Restatement (Second) of the Foreign Relations Law of the United States (American Law Institute), 46–47 Restatement (Third) of the Foreign Relations Law of the United States (American Law Institute), 118 Rio Declaration on Environment and Development, 229 Principle of, 144 Principle of, 127 Principle of, 144 Principle of, 144 Principle of, 144, 150 Principle of, 145, 150 Principle of, 145, 150 Principle of, 145 Principle 12 of, 145 Principle 15 of, 155 Principle 17 of, 147 Rio de Janiero Earth Summit, 41 Principle of, 95 Principle 12 of, 120 risk, reciprocity of, 83, 112 risk assessment, 244–245 See also quantative risk assessment Index River Oder, 35 Rossland, 13 Rubin, Arthur P., 17–18, 26 Sand, Peter, 70 Sellafield, 136 (semi) precautionary principle, summarized, 162 See also precautionary principle “serious consequence,” 39, 126, 195, 214, 260 Shelton, Diane, 93–94 sic tuo ut alienum non laedas, 40, 62, 80–82, 120, 185, 214, 228, 256 Smelter Smoke in North America (Wirth), 168 smoke disputes, standard legal process for resolving international, 19–20 smoke easements, 282 “Smoke Eaters,” 13–14 smoke injury, 24 smoke zone between 1927 and 1937, 23, 24 bio-regional, 19 social responsibility, and refugees, 254 Soering v United Kingdom, 305 “solution just.” See “just solution” Speth, James Gustave, 172 SPS Agreement See WTO Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) state, defined, 259 state control, defined, 236–238 state liability, 97–98 See also compensation, damages, liability, Trail Smelter compensation for drug trafficking, 283 and private actors, 292 for privately caused harms, 282 state responsibility, 47–55, 56, 59–61, 153, 225, 227, 241 See also Draft Articles on 345 the Responsibility of States for Internationally Wrongful Acts defined, 85 and the European Court of Human Rights (ECourtHR), 303–307 and private actors, 238–239 for refugees, 254, 259–261 and state liability, 87 and terrorism, 236–239 and Trail Smelter, 296 and the Trail Smelter Tribunal Statement of Forest Principles, Principle 1(a) of, 41 Stevens County, Washington (United States), 29 Stockholm Declaration on the Human Environment (1972), 112, 144, 195 Article 21 of, 229 Principle of, 144 Principle of, 144, 150 Principle 21 of, 41–42, 56, 86, 95, 127 Story Parchment Company v Paterson Parchment Company, 205 Straddling Fish Stocks Agreement (1995), 155 sulphur dioxide, 14, 27, 38, 183 sustainable development, defined, 144–146 Swiss shooting range precedent, 48 Tadic, 237–238 “tangible economic injury,” 20 Tanzania, 262 “targeting test,” 272–273, 277, 278–279 Teck Cominco America Inc (TCAI), 114 Teck Cominco Metals, Ltd (TCML), 109–121 Teheran Hostages 233, 238 Ten Drivers of Environmental Deterioration (Speth), 173 territorial principle, 116–120 346 terrorism and international due diligence, 232–236 international law on, 231–239 state responsibility and attribution, 236–239 state-sponsored, 235–239 and transboundary environmental pollution, 225 The M/V Saiga (1999), 90 The S.S Wimbledon (1923), 90 Third United Nations Convention on the Law of the Sea, 209 Three-mile Island, 201 Torrey Canyon 209, 219 tortfeasor, importance of residence of, 273–274 Toys “R” Us v Step Two, 272–273 Trail smelter, 16 Trail Smelter Arbitration adaptive decisional structure of, 154–166 “analogous” US precedents, 49 arbitration, 111–121, 158–159, 281–283 background to, 255–256 and Basel Convention, 191–194 basic questions confronting, 66–67, 69–75 and causal relationship between emissions and damage, 205, 290 and Citizens’ Protective Association, 17, 21–22, 82, 169–170 claims based on nuisance, 16, 27 and class interests, 21–22 compensation for damages, 1917–24, 15 compensation for damages after January 1, 1932, 38 compensation for damages through January 1, 1932, 28, 38, 69 compensation in 1938, 16 compensation to October 1, 1937, 30 composition of tribunal, 34, 195–208 Index and the Convention of the Law of the Sea (1982), 214–221 conflict with Stevens County (Washington) farmers, 14, 15 damage after January 1, 1932, 47 damage from October 1, 1937 to October 1, 1940, 31 damages and nuisance theory, 256 and drug-trafficking, 288, 289 early history of, 13–14, 27, 33 and environmental monitoring, 151 “expert and judicial side” of, 44 extension of US precedents, 50 and the failure of private international law, 279–280 flaws in procedures of the, 69–75 and international environmental law, 244–245 and the “just solution”, 36, 37, 150 meteorological investigations of, 30–31 and permanent sovereignty over natural resources, 182–194 “political side” of, 41–42 primary finding of, 16 and private international environmental harm, 67–69 questions submitted to, 197–198, 241 and refugees, 258–267 and regulatory regime of prevention, 206 and scientific inquiry, 174–176 second dispute, 109–121 and “smoke farmers,” 17, 23, 24 smokestack, 15 and social conflict, 18–19 and sovereign rights, 50–51 specific precedents for, 35–36 and state responsibility, 296 and Stevens County farmers, 23 threshold question of, 47–49 and transboundary air pollution, 202–204 Index and US interstate commerce precedents, 50–51 and the US Supreme Court, 50, 74 transboundary air pollution and compensation, 57 damage from, 198 distinctive feature of, 198 and the Trail Smelter arbitration, 195–208 transboundary environmental pollution and international terrorism, 225 and international terrorism, shared characteristics, 225 treaty-based conflict resolution, 244–253 Treshow, Michael, 25 Turkey, 297, 303 UEJF & LICRA v Yahoo!, 269–270 UNHCR Executive Committee (ExCom), 258 Uniform Transboundary Pollution Reciprocal Access Act, 76 United Kingdom, 199 United Nations Conference on the Human Environment, 217 Principle 13 of the Principles of Assessment and Control of Marine Pollution of, 217 United Nations Corporate Norms, 156 United Nations Environment Programme (UNEP, 1982), 189 United Nations Framework Convention on Climate Change (UNFCCC), 168, 171–172, 177, 178 United Nations High Commissioner for Refugees (UNHCR), 258, 260, 262, 264, 300 Executive Committee (ExCom) of, 258 United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCEAR), 202 347 United States, 199, 289, 303 Universal Declaration of Human Rights (1948), 257, 259, 264 United States Supreme Court, 111, 205 Vanuatu, 171 Vienna Convention on the Law of Treaties, 42 Article 26 of, 301 Article 27 of, 301 Article 31 of, 299 Vienna Conventions on Diplomatic and Consular Relations, 42 Wallace, Perry, 173 Washington, D.C (United States), 28 Weeramantry, Judge, 144, 148–149, 151, 156 Weiss, Edith Brown, 174, 179 Westphalian prerogative, 168 Wirth, John, 168, 170, 172, 198 Worchester v Georgia (1832), 40 World Charter for Nature (1981), 155 World Court, 35 WTO Agreement on Sanitary and Phytosanitary Measures (SPS Agreement), 161–166 Article 2.2 of, 163 Article 5.1 of, 163, 164 Article 5.2 of, 164 Article 5.7, 163 Yemen, 305 Yugoslavia, Federal Republic of, 298 zero coca tolerance policies, 286 zinc ores, 13 Zippo Manufacturing v Zippo Dot Com, 271–272, 273 Zivilprozessordnung (ZPO – Code of Civil Procedure), Section 32 of, 274, 275 ... he cofounded the Annual Idaho International Law Symposium The inaugural symposium gave rise to this book Transboundary Harm in International Law Lessons from the Trail Smelter Arbitration Edited... of International Law University of California at Berkeley Berkeley – September 1, 2005 transboundary harm in international law introduction Transboundary Harm in International Law: Lessons from. .. the book examines the arbitration s influence on international law generally and international environmental law specifically In particular, the book explores whether there are lessons from Trail