Rebecca M. Bratspies

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

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.

Consuming (F)ears of Corn: Public Health and Biopharming

One of the most controversial and exciting prospects of biotechnology is biopharming - a process in which plants are genetically engineered so that they endogenously produce specialty pharmaceutical or industrial proteins. The allure of these GMOs is clear - an environmentally sustainable, and inexpensive replacement for costly drugs and petrochemicals. That allure may be obscuring the dangers lurking below the surface. Because these genetically modified crops are not food and are not intended for human consumption, there are jarring points of tension, if not outright contradiction, between widespread planting of biopharm crops and the ongoing expectation of a safe and secure food supply. This article raises a few of the more pressing public health questions that should be resolved before any more of the nations crop lands are diverted from food production to biopharming. Part I provides an introduction to biopharming and outlines the various plans and projections for its commercial exploitation. Part II examines the existing regulatory structure, highlights some of its most critical weaknesses, and points out the serious risks this structure creates vis-a-vis the integrity of the food supply. Part III articulates the central conclusion that safe and successful exploitation of these new technologies will demand a markedly different regulatory regime than the laissez-faire system that has prevailed in conventional agricultural policy. To that end, this section proposes some alternatives that would better safeguard public health while still permitting exploration of this exciting new technology.

The New Discovery Doctrine: Some Thoughts on Property Rights and Traditional Knowledge

The discourse surrounding traditional knowledge takes place on a number of levels simultaneously. Trade advocates view ownership of traditional knowledge and biological diversity through the lens of the World Trade Organization (WTO) agreements. Environmentalists approach the question with ecosystem preservation in mind. Because most of the worlds remaining biodiversity exists within the territories of indigenous peoples, issues of sovereignty, identity and colonialism inevitably swirl beneath the surface. And, of course, all these dialogues occur against a backdrop of a globalizing market economy that values resources almost exclusively in terms of their monetary value. So far, the dynamic seems to be a tug of war between two alternative property visions: state ownership of biological resources, as articulated in Article 8j of the Convention on Biological Diversity, and private ownership of these resources under the TRIPS agreement. There is, however, a third aspectto this struggle over traditional Knowledge and biological resources. Most of the worlds remaining biodiversity exists within indigenous lands and territories. Rather than as an aspect of state sovereignty over territory, or the fruits of private invention, indigenous leaders conceive of these resources as an aspect of self-determination - as a recognition of their fundamental rights to property and culture. Indigenous groups are thus trying to expand the discourse over biological resources so that it includes their interests and their hopes for wresting back control over territories, resources and heritage. Given the resources devoted to developing comprehensive laws to ensure protection of intellectual property one might ask why the current legal system does so little to safeguard the cultural and intellectual property interests of indigenous groups. When the interests and assets of an entire group are, by definition, not embraced within the protective mantle we call property, it ought to prompt exploration of some hard questions. This article attempts to pose some of those questions and to suggest areas for further inquiry.

Trail Smelter's (Semi)Precautionary Legacy

Although almost every discussion of state responsibility begins with its talismanic invocation, time has not been kind to the Trail Smelter arbitration. Its primary contributions to international law have been the statement that: no State has the right to use or permit the use of its territory in such a manner as to cause [environmental] injury . . . in or to the territory of another, and its requirement that Canada pay the United States compensation for damages. While these Trail Smelter principles have become customary international environmental law, the arbitration itself is often viewed as a quaint remnant of a bygone world. Many scholars view Trail Smelters marginalization as inevitable in light of international laws evolution from a state-to-state realm to one of multi-lateral, consensus-based actions. Others have suggested that the arbitrations impact is blunted by the fact that harm was not contested before the Arbitral Tribunal. This unique combination of characteristics leads many to conclude that Trail Smelter has little relevance for resolving the thorny transboundary environmental challenges that beset our ever-globalizing world. I think the case has much to teach modern international environmental law, but for somewhat unconventional reasons. This chapter explores one of the arbitrations least considered facets - the decisional process itself. Hampered by a lack of scientific evidence, the Trail Smelter Tribunal crafted an adaptive decisional structure in order to fulfill its charge to be just to all parties while resolving a conflict over pollution flowing across the Canadian border and causing harm in Washington State. The Tribunals innovative and far-reaching solution, which I am calling (semi)precautionary, was to craft an interim regime from the available but incomplete information, with a clear understanding that the interim period would be used to develop more information. The newly-developed information was then used to create a permanent regime designed to minimize harms while permitting the smelter to continue operations. This structure - using preliminary measures to prevent harm while information sufficient to create a permanent regime fair to all parties is developed - is the Trail Smelter arbitrations (semi)precautionary legacy. Regardless of the critiques of the arbitrations holdings or its normative relevance, this (semi)precautionary legacy resonates profoundly in modern international environmental law. For example, this early case presaged much of the contemporary debate about appropriate regulation, like that surrounding genetically modified organisms (GMOs). Viewing this controversy through Trail Smelters (semi)precautionary lens might reveal an appropriate middle ground between the competing claims for regulatory legitimacy made by advocates and opponents of the precautionary principle.

Hunger and Equity in an Era of Genetic Engineering

I. The Equity Crisis in Food Production and Distribution ...................................... 199 A. What Is Food Security? .............................................................................. 199 B. Will More Food Help? ............................................................................... 204 C. What the Past Teaches Us ......................................................................... 207 D. What Does Climate Change Do to Food Production? ..................... 209 II. Enter Genetically Engineered Crops ...................................................................... 212 A. What Are Genetically Modified Organisms? ........................................ 217 B. Can Genetically Engineered Crops Solve Food Insecurity? ............. 221 1. Do Genetically Engineered Crops Actually Increase Food Production? ........................................................................................ 222 2. Can Genetically Engineered Crops Save Us from Climate Change? ............................................................................................... 225 C. What Are the Equity Ramifications of Genetically Engineered Crops? ......................................................................................................... 228 III. Some Additional Costs of Genetically Engineered Crops ................................ 233 A. Costs Due to Control over Production ................................................. 234 B. Costs Due to Control over Knowledge ................................................. 237 1. Direct Control over Research .......................................................... 238 2. Indirect Control over Research ....................................................... 240 Conclusion ........................................................................................................................ 243

The Green Economy Will Not Build the Rule of Law for Nature

In June 2012, the world returned to Rio for the 2012 Conference on Sustainable Development (the Rio 20 Conference). Marking the twentieth anniversary of the groundbreaking 1992 Rio Conference on the Environment and Development, Rio 20 aspired to build a more sustainable global society. This could have marked the rise of a different conception of sustainability; one recognizing nature the irreplaceable foundation upon which the human economy is built. But, with no political will to fulfill the Brundtland Commission’s demand that “human laws … be reformulated to keep human activities in harmony with the unchanging and universal laws of nature,” Rio 20 defaulted to embracing the “green economy” rather than seizing the opportunity to formulate a new Rule of Law for Nature.

Assuming Away the Problem: The Vexing Relationship between International Trade and Environmental Protection

What does global trade mean for the environment of any particular place? It can produce place-based transformations that are both positive and negative. The Kuznets curve is often touted as a solution that resolves the conflict between trade promotion and environmental protection by purporting to demonstrate that increasing overall social wealth through trade inevitably produces increased environmental protection. This paper disputes the putative relationship between global trade and environmental protection embodied by the environmental Kuznets curve hypothesis. Part I describes the growth of the Kuznets curve meme, and the influence this approach has had on legal and policy choices surrounding development and environmental protection. Part II details the flaws inherent in a Kuznets curve-influenced development strategy, leveling both practical and theoretical critiques of its central thesis that economic development inherently creates a more sustainable society. Having rejected the environmental Kuznets curve hypothesis, Part III briefly highlights some possible alternatives for addressing the tensions between global trade and sustainability.

Transboundary Harm in International Law: Frontmatter

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.

Transboundary Harm in International Law: Contributors

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.

Transboundary Harm in International Law: TRAIL SMELTER AND CONTEMPORARY TRANSBOUNDARY HARM – BEYOND THE ENVIRONMENT

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.