A Response: Reciprocal Unilateralism
As an initial matter, thanks to Professor Craik for his kind and well-thought out comments to our article. I should note that Neil has done some wonderful work on transnational environmental governance and the use of environmental impact assessments. Just as one example, his paper on deliberation and legitimacy in transnational environmental governance is excellent and well worth the read.
But on to the task at hand… To a large extent, Neil agrees with our analysis on the loosening restrictions on extraterritoriality. Yet Neil is somewhat unconvinced of our overall thesis. He emphasizes that there remains substantial disincentives for Canadian provinces to embrace unilateralism in the form of enacting a statute that would permit transnational litigation. Neil then outlines what he perceives to be the key remaining barriers to suit. Certainly, Neil is correct on one level. Disincentives for suit still exist. But I’m less convinced than Neil that they are insurmountable as they once were. Let me explain.
First, Neil describes the various transgovernmental networks at play in the U.S.-Canadian relationship, where he believes policy may more likely be influenced. As a descriptive matter, Neil is correct to point out the existence of a whole host of transgovernmental cooperative activities, some formal and some informal. Many subnational actors engage in an ongoing discourse over environmental policy impacting the two countries. But it’s difficult to see how these networks meaningfully reduce the likelihood of transnational litigation. Those networks appeared impotent to stop the filing of the Pakootas lawsuit, or to reduce tensions in other recent heated cross-border disputes, such as Devils Lake, the Softwood Lumber impasse, oil drilling in the Arctic National Wildlife Reserve, and many others. Some of the cooperative activities that Neil highlights support, rather than undermine, our thesis. As I discuss in this article, the Great Lakes Compact and Agreement, for example, specifically include citizen suit provisions, permitting for the first time cross-border litigation as a means of enforcing the terms of the Compact. And ultimately, how successful these transgovernmental networks have been is far from clear. Although Ontario filed formal comments objecting to the EPA’s New Source Review Program under the Clean Air Act, what weight, if any, those comments were given is uncertain. Some believe the comments fell entirely on deaf ears, or at least were given much less weight than the concerns of other U.S. stakeholders. In fact, Ontario has had a long history of objecting to U.S. environmental regulations as being insensitive to Canadian concerns (think of the 1980s with Acid Rain). If anything, history suggests that the sort of relationship that Ontario has tried to cultivate with the state governments has not been terribly effective in protecting Canadian interests.
Neil then turns to the jurisdictional hurdles that remain. Neil believes that any statutory approach taken toward remedying Ontario pollution would need “to seek damages from polluters regardless of location.” We agree. Ontario has its own housecleaning to do, and would need to enact a neutral statute, similar to the one that existed in Imperial Tobacco. We do not suggest that Ontario could enact a statute that discriminates solely against foreign (i.e. U.S.) polluters – such a statute would surely fail. We also agree with Neil’s observation that Canada’s position on extraterritorial jurisdiction is “less fulsome than the American position.” But as the U.S. has broadly interpreted the effects doctrine to permit prescriptive and legislative jurisdiction in a wide-range of contexts, other countries have started also to permit extraterritorial jurisdiction when substantial effects are felt within their countries. The result has been a dramatic rise in the last decade of other countries extraterritorially applying their laws (from antitrust, to securities, to human rights, to criminal law claims). Why Canadians would buck these world-wide trends is unclear. Viewed from a different perspective, if the U.S. increasingly relies on extraterritorial laws without considering comity (e.g., Pakootas, but also other cases like Hartford, where a multilateral balancing approach incorporating comity concerns was rejected), Canada may have little choice but to engage in a tit-for-tat strategy, despite that strategy being antithetical to its long-term goals.
In the end, Neil and I are more in agreement than disagreement. Neil is right on point when he concludes that “unilateralism lacks predictability, and ultimately, it lacks any transformative potential to create a shared normative vision regarding common threats to the natural environment.” But I think Neil’s position – like mine – is an outlier among current international legal theorists. Few scholars seem concerned about the use of domestic courts to solve transnational problems, while at the same time encouraging and embracing multilateral agreements. In fact, academics perhaps should be concerned how current international scholarship has become so polarized on this point. On the one hand — to use a term often ascribed to Peter Spiro – “sovereigntists” appear content to generally attack international law and its institutions as a threat to American uniqueness, without providing an alternative approach to serious transboundary challenges. On the other hand, many internationalists encourage the use of extraterritorial laws despite the long-term drawbacks and the potential to undermine the development of more meaningful international law. Look at the burgeoning literature encouraging the use of the Alien Tort Statute as a means of redressing human rights abuses under universal jurisdiction (as an aside: I’d be interested in what others think on this broader point; I hope readers will comment.) The result is that Neil, Shi-Ling, and I may be on the fringes when we see extraterritorial lawsuits as a method for bringing uncooperative partners back to the bargaining table. (If you’re interested, I’ve explored this last issue, international legal theory, the global growth of extraterritoriality, and the decline of multilateral lawmaking, in a new paper.) Given all this – and the changes in law and science that make such suits more plausible than before – Canadians might well be wise to seriously consider extraterritorial transnational litigation as a pragmatic necessity.
One last point, before our guest stint ends. I wanted to extend some thank yous. First, thanks to VJIL and Opinio Juris for hosting this forum: a great idea. I should also have mentioned that the portion of our article describing the Devils Lake dispute drew heavily from the work of Opinio Juris’s own Duncan Hollis. Duncan’s work on Devils Lake and his scholarship on state consent and the changing sources of international law is first-rate. Second, I think I speak for both Shi-Ling and myself when I say working with VJIL has been an excellent experience. The journal’s suggested edits to our article were on point, meticulous, and well-thought out. VJIL provided us with timely suggestions and feedback in easy-to-understand redlines. The article was taken quickly to publication, and the board was responsive to our emails and requests. In short, we were very pleased to have decided to publish with VJIL. From an author’s perspective, VJIL’s reputation as one of the nation’s premier international law journals is well-deserved. In particular, special thanks goes to Naja Armstrong-Pulte for her careful edits, and to Christopher Hammer and Chris Ripple for their help in the other stages of the production process.