Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration

TRANSBOUNDARY HARM IN INTERNATIONAL LAW: LESSONS FROM THE TRAIL SMELTER ARBITRATION, Rebecca M. Bratspies & Russell A. Miller, eds., Cambridge University Press, 2006

Washington & Lee Legal Studies Paper No. 2011-30

13 Pages Posted: 25 Jan 2012  

Russell Miller

Washington and Lee University - School of Law

Rebecca M. Bratspies

City University of New York - School of Law

Date Written: 2006

Abstract

Part One lays out Trail Smelter’s legal and historical foundations and its jurisprudential legacy in international environmental law. The Trail Smelter Tribunal navigated this clash of sovereignties by articulating what have come to be known as the Trail Smelter principles: (1) the state has a duty to prevent transboundary harm, and (2) the “polluter pays” principle, which holds that the polluting state should pay compensation for the transboundary harm it has caused.

Part Two illustrates Trail Smelter’s significancy in the normative framework for responding to transboundary environmental challenges, including some of the most pressing environmental problems confronting the international community today. The Trail Smelter transboundary dispute and adjudication occurred across a border, which, throughout its history, has been most distinctively characterized by American and Canadian efforts to downplay its functional significance. Trail Smelter’s relevance to contemporary transboundary environmental harm is further complicated because the case reflects a distinct, historical view of state boundaries. Conscious of the limits imposed by the unique characteristics of the boundary at the center of the Trail Smelter dispute, the contribution in Part Two if this book explore Trail Smelter’s significance to some of today’s most pressing transboundary environmental problems.

Most radically, Part Three describes Trail Smelter’s resonance in international responses to nonenvironmental transboundary harm. Judith Wise, Eric Jensen, and Jennifer Peavey Joanis point to the indeterminacy of notions of harm. In a world shaped by multinational enterprises, international organizations, and the Internet, globalization has forced scholars and policy makers to grapple anew with the definition of transboundary harm.

The book underscores that any attempt at conceptualizing transboundary harm and international law’s responses thereto must give consideration to the changing international economic and political order, and the wide range of actors vying to determine its content. This volume also focuses attention on the inherent tensions between international liability regimes, which presuppose that harmful conduct will continue, and international prevention regimes, which seek the cessation of harmful activities.

Keywords: transantional law, international law, environmental law

JEL Classification: K10, K33

Suggested Citation

Miller, Russell and Bratspies, Rebecca M., Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration (2006). TRANSBOUNDARY HARM IN INTERNATIONAL LAW: LESSONS FROM THE TRAIL SMELTER ARBITRATION, Rebecca M. Bratspies & Russell A. Miller, eds., Cambridge University Press, 2006; Washington & Lee Legal Studies Paper No. 2011-30. Available at SSRN: https://ssrn.com/abstract=1990519

Russell Miller (Contact Author)

Washington and Lee University - School of Law ( email )

Lexington, VA 24450
United States

Rebecca M. Bratspies

City University of New York - School of Law ( email )

2 Court Square
Long Island City, NY 11101
United States

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