16 Oct The Risk of Using Domestic Law to Solve Transboundary Harm
Shi-Ling nicely describes the crux of our article, and the different perspectives that we brought to the project. Here – very briefly – I wanted to take a step beyond our paper and elaborate on my nervousness over using domestic laws, applied extraterritorially, to solve transboundary (or international) problems. What Shi-Ling accurately describes as my lament.
I agree with Shi-Ling that sometimes subnational litigation may be necessary to provide some relief to otherwise intractable problems. Our article, of course, advocates a transboundary lawsuit. Certainly it makes sense for Canadians to explore using domestic environmental regulations to remedy U.S. pollution having a substantial effect and causing significant harm in Canada. This is particularly the case when the U.S. seems disinterested in seriously exploring bilateral or diplomatic solutions, and when the U.S. itself has commonly unilaterally applied its own domestic laws extraterritorially in a wide-range of contexts. The pending Pakootas v. Cominco case (the Trail Smelter dispute) currently on cert. petition to the U.S. Supreme Court — where CERCLA has been applied against a Canadian company for activities solely occurring in Canada – may well cause Canadians to rethink their reluctance to extraterritorially apply their own laws.
But to my mind, extraterritorial lawsuits (i.e. transnational litigations) are problematic. In some ways, recent international legal scholarship has encouraged these suits. Sovereigntist/revisionist scholars have pushed internationalists to turn domestically with their sustained attack against international, multilateral instruments as a threat to American democratic sovereignty. On the other hand, internationalists have also turned away from traditional sources of international law and multilateralism, believing the traditional view that international lawmaking should be the sole business of nation-states to be anachronistic. Instead, substate/nonstate actors are encouraged to create and enforce international law. The academy is filled with international scholars who now embrace constructivist, pluralist, and transnational perspectives.
Yet I suspect that extraterritorial lawsuits undermine what both groups of scholars value most. States applying their domestic laws extraterritorially (i.e., asserting their own legislative or prescriptive jurisdiction) undermines the collective determination of states to resolve disputes bilaterally or multilaterally. In short, domestic lawsuits may threaten the creation of meaningful international laws. Scholars who are skeptical about international law as a threat to democratic sovereignty should be even more concerned. Extraterritorial lawsuits lead not only to patchwork solutions, but also are antithetical to democratic self-rule. In fact, extraterritorial lawsuits threaten democratic sovereignty to a much greater extent that international law ever has. So as much as I believe a Canadian lawsuit is possible to remedy transboundary pollution, broadly speaking I am nervous about what it portends for international law. In the long-term, bilateral and multilateral treaties (and their institutions) often will remain the best way to address transboundary challenges.