Litigating Canada-U.S. Transboundary Harm: International Lawmaking and the Threat of Extraterritorial Reciprocity

Abstract:     
This Article joins a spirited debate ongoing among international law scholars. Numerous articles have debated the changing nature of international law and relations: the impact of globalization, the decline of territorial-sovereignty, the ever important role that non-state actors play, and the growing use of domestic laws to solve transboundary problems. That scholarship, however, often speaks only in general theoretical terms, and has largely ignored how these changes are playing out in countries outside the United States in ways that impact American interests.

This Article picks up where that scholarship leaves off. It examines one of the perennial challenges for international environmental law - how to address transboundary pollution. It does this in the context of an unlikely flashpoint, the Canada-U.S. relationship. The Article explores the possibility that Canadians will use their own domestic environmental laws in Canadian courts to remedy transboundary harm. The Article argues that in light of the recent chill in Canada-U.S. relations, the growing extraterritorial reach of U.S. environmental laws, and the recent changes in law and science that Canadians (and, in particular, those living in the province of Ontario) are likely to turn to extraterritorial environmental statutes, and then file suit under those statutes, as a means of addressing U.S. pollution that causes cross-border harm.

Working Paper Series