Author Archive for
Austen Parrish

U.S. v. Microsoft (Microsoft-Ireland): Implications for International Lawmaking

by Austen Parrish

[Austen Parrish is the Dean and James H. Rudy Professor at Indiana University Maurer School of Law. He is a co-author, with appellate lawyer Carl Cecere and Prof. Anthony Colangelo (SMU Dedman School of Law), of an amicus brief filed in U.S. v. Microsoft.]

Next Tuesday, the U.S. Supreme Court will hear U.S. v. Microsoft. A fascinating and potentially landmark case, it is one in a growing line of transnational cases where the Court has grappled with how new technology affects older laws. Indicative of its potential significance, thirty amicus briefs were filed in the case, including one that I was pleased to help write.

The case began when the federal government obtained a warrant requiring Microsoft to turn over records related to a customer’s email account in a drug trafficking investigation. Microsoft agreed to provide records stored in the United States. It refused, however, to provide communications stored in Ireland. Instead of seeking Ireland’s cooperation or using a Mutual Legal Assistance Treaty designed to address cross-border criminal investigations, the Government took a different tack. Congress, according to the Government, had already granted it—and local and state law enforcement—the power to force Microsoft to seize private emails of foreign citizens, stored on data servers in foreign countries, and import them into the United States. The Government asserts this power exists even when foreign privacy laws prohibit disclosure, and without the need to notify the email’s owner or the country where the emails are stored.

The case has potentially wide-ranging implications. But, on a basic level, at stake is how courts should interpret a statute when technology enables the government to obtain information previously unobtainable. Did Congress, when it enacted the Stored Communications Act in 1986, intend to give local law enforcement the power to seize communications stored overseas? Because it served the warrant at Microsoft’s Washington state headquarters seeking documents under Microsoft’s control, the Government asserts it doesn’t matter that technology now enables what previously would have been prohibited. Microsoft argues, in contrast, that the presumption against extraterritoriality prevents guessing what Congress would have wanted. When Congress enacted the Stored Communications Act thirty years ago, it could not have anticipated seizing emails stored abroad from computers within the U.S. because the internet was in its nascent form, email was just beginning, and no one had conceived of cloud computing. Accordingly, the Court should not assume Congress granted law enforcement this power. This is particularly true, Microsoft urges, because the Act was designed to provide greater privacy protections in light of changing technology, not less.

Worth emphasizing is what this case is not about. The case is not about whether law enforcement should, in certain circumstances, be able to effectuate a cross-border search. It’s not a question of whether the Government needs more tools to investigate transnational crime. And it’s not about whether criminals can evade law enforcement efforts by storing incriminating materials abroad. What the Government seeks could be achieved through the existing MLAT process, through collaboration with Ireland, through new legislation (such as that currently proposed by a bipartisan group of Senators), or through the negotiation of bilateral and multilateral treaties. It’s also not a policy question of what might be a sensible approach if Congress rewrote the statute today. The question is what Congress authorized when it passed the Stored Communications Act. While international comity may ultimately come into play—allowing a court to balance competing sovereign interests when deciding whether to enforce the warrant—that only happens if the Court finds the Act granted the government authority to seize communications stored abroad in the first place.

As set forth in our amicus brief, if the Court is faithful to its past precedent Microsoft should win the statutory argument. To be sure, there’s a number of complicated doctrinal considerations, and I won’t repeat the arguments set out in our amicus brief. In this post, however, I thought I’d highlight how a decision in the Government’s favor could potentially undermine international lawmaking.

Most commentators believe a harmonized, international solution is essential. That’s true for privacy and data law scholars who argue that the “way forward on data extraterritoriality must be an international one.” It’s also true for those writing about coordinated approaches to transnational crime. The question is whether a ruling that enables the Government to unilaterally seize private information of foreign citizens stored abroad helps or hurts in that effort. At the very least, the Government’s interpretation of the Act bypasses and makes bilateral mutual legal assistance treaties less relevant. But putting that aside, does one result or the other lead to a more likely international solution?

Viewed through this lens, for those committed to effective international lawmaking, there should be a clear preference in outcomes. A ruling that the Government has the power to unilaterally seize foreign communications undermines incentives to push for an international solution or to fix the shortcomings of mutual legal assistance treaties. As Professor Tonya Putnam’s recent book and research show, in the past when courts have rejected government arguments for extending domestic statutes extraterritorially, those refusals have helped fuel U.S. multilateral or bilateral engagement. In contrast, rulings that permits unilateral extraterritorial action create environments where there’s little urgency for the U.S. to find coordinated solutions. The most common result is free-for-alls, where each nation relies on its own piece-meal approach. Not surprisingly then, the reciprocity problem—that other nations would unilaterally try to seize private communications of U.S. citizens—figures prominently in the Second Circuit opinion. As one lawyer provocatively, but accurately, explains: “Why is the U.S. government trying to help Vladimir Putin access information stored in the United States?

For international lawyers, the Government’s position should be particularly troubling because the Government asks the Court to assume that Congress authorized activity that in 1986 would violate prohibitions on extraterritorial enforcement jurisdiction. All agree that the Government could not send FBI agents to Ireland to retrieve documents without Ireland’s consent. The Government also could not surreptitiously hack into data servers in Ireland. That too would violate Irish sovereignty. The issue then is whether the Government can do indirectly what it is prohibited from doing directly, by compelling Microsoft to do its work for it. But the U.S. can’t sidestep international law’s limitations merely by conscripting a private company to act in its stead. Ireland’s sovereignty and its citizen’s privacy rights aren’t offended less because the Government forced Microsoft to electronically seize records for it.

The response by some is to reimagine international law. Professor William S. Dodge takes this approach somewhat in a recent post on the Just Security blog. Citing to his own work with the Fourth Restatement, he says that the amicus brief “is simply wrong” on the international law by pointing to U.S. domestic court decisions related to production orders. Because I think highly of Professor Dodge and his other work, and because he directly responds to our amicus brief, I felt a short reply appropriate.

As an initial matter, the Fourth Restatement does not purport to set out international law. It’s an important publication, written by distinguished scholars, but it’s a survey of how U.S. courts have ruled. Some comments in the Fourth Restatement are contentious. For example, Professor Dodge cites to it for the proposition that customary international law “does not limit adjudicatory jurisdiction at all, except for certain rules of immunity.” That suggestion is inconsistent with the Third Restatement, which indicates a reasonableness restriction exists, and canonical treatises on international law. While it may be true that some domestic courts have not allowed international jurisdictional principles to constrain them and that international law limits are rarely in play given often stricter domestic limitations, the assertion that international law imposes no limits whatsoever is a minority position. As Professor Alex Mills explains: “Although some international lawyers have questioned the need for a separate category of ‘adjudicative jurisdiction,’ few if any would maintain that adjudicative jurisdiction is unregulated in international law.” The point is not to argue whether the Fourth Restatement is normatively right, but to suggest that the Fourth Restatement does not reflect settled international law, and not international law as it existed in 1986.

On the substance there’s also problems with arguing, as the Government does, that because some lower courts have permitted subpoenas to produce information from abroad that international law permits unilateral, extraterritorial warrants. Lower court cases focused on civil discovery generally do not interpret international law. They also don’t involve warrants, let alone warrants under the Stored Communications Act—an issue discussed extensively in the briefing. The cases also aren’t comparable because extraterritorial discovery is only permitted if the court has personal jurisdiction over the person subject to the production order, something that does not necessarily exist over foreign email owners (it might be different if the Government were only seeking foreign stored documents of Americans).

Even if these problems were overcome, it’s not clear that unilateral extraterritorial discovery orders are themselves always consistent with international norms. Certainly other countries object strongly to the practice. The background assumptions of the Brussels Convention, the Mutual Legal Assistance Treaties, the European Union’s General Data Protection Regulation, and the U.S. Department of Justice’s own manuals are that international law requires coordination, not unilateral action, to effectuate a cross-border production. Even if one could argue that state practice is changing, in 1986—the critical time for determining what Congress authorized in the Stored Communications Act—international law did not permit law enforcement to seize communications stored abroad and therefore is not something the Court lightly should assume Congress authorized.

Also contrary to what the Fourth Restatement implies, unilateral extraterritorial discovery orders have provoked pronounced friction. Published in 1987 around the same time of the Stored Communications Act, the Third Restatement was clear: “[n]o aspect of the extension of the American legal system beyond the territorial frontier of the United States has given rise to so much friction as the request for documents in investigation and litigation in the United States.” And as Gary Born and Bo Rutledge note in their well-regarded treatise: “Unilateral U.S. discovery of materials located abroad has frequently provoked vigorous foreign resistance” including diplomatic protests and blocking statutes. Writing earlier in a related context, the International Law Association noted that “[i]t is difficult to find any authority under international law for the issuance of orders compelling the production of documents from abroad.” Or as Professor Cedric Rygaert has recently explained: “Foreign states, European ones in particular, have. . . not surprisingly often argued that the U.S. execution of discovery orders for the production of documents located within their territory is not in keeping with the territoriality principle, violates international law, and violates their judicial sovereignty if their consent was not previously obtained.”

And for those interested in international law, perhaps this is where U.S. v. Microsoft is most interesting. For me, it’s an example of how unilateral action in the name of expediency threatens to undermine longer-term interests. U.S. companies aren’t the only ones that can access data abroad, and the U.S. should have an interest in protecting its own citizen’s privacy interests from foreign intrusion. This is exactly the kind of problem where coordinated, international solutions are needed. Unilateral, extraterritorial enforcement—in which nations compel the production of data located anywhere around the globe—is not a sustainable approach. More importantly for this case, there’s no indication that in 1986 Congress intended this odd result.

Kiobel Insta-Symposium: A More Positive Outlook for International Law

by Austen Parrish

[Austen Parrish is the Interim Dean and a Professor of Law at Southwestern Law School in Los Angeles.]

With Kiobel, the general mood among those in the human rights community is pessimistic. Because it curtails use of the Alien Tort Statute, viewing the decision as a loss is tempting. From this perspective, Kiobel is another indication that the Court continues to reinvent itself with a particular brand of conservative activism, the U.S. remains hostile to international law and its institutions, and corporate interests have won out over the protection of individuals. For others, the Court’s finding that the Alien Tort Statute does not redress claims of human rights violations by foreigners against foreigners on foreign soil is scratched up as win on the side of those pushing for tort reform, for those who believe there is too much litigation in the United States,  and for those who courts, as un-elected institutions, need to be carefully watched and constrained in the area of foreign affairs.  While those of a more conservative orientation have celebrated the case as ending litigation “run amok,” the reaction among many concerned with protecting human rights has been to decry the result and paint the case as a setback.

But there’s a different way to describe the case than these two narratives: one that’s more positive for international law and its institutions.  Viewed through a different lens, Kiobel is a case about whether the United States should privilege unilateralism over multilateralism, and whether it prefers international over pluralistic approaches to global governance.  The case may signal a modest retreat from a failed strategy of aggressive American unilateralism (viewed by other countries as illegitimate and legal imperialism) that has taken root in a number of public and private law contexts. In this way, to the extent Kiobel helps to inter unilateral regulation of foreigners for conduct occurring abroad – not just in ATS cases, but also in a wide-range of other contexts –  the case is not a setback for international law or human rights, but rather a vindication of them.   To reach this conclusion, one must believe that international law should generally be advanced through multilateral consensus, rather than unilateral means.  Unilateral extraterritorial regulation of the foreign-cubed variety, where one state purports to dictate conduct in another state’s territory, is in tension with international norms and basic principles of democracy.  It’s also a perspective that believes human rights become universal not through some sort of predetermined inevitability, but only through careful building of alliances and legitimacy between different groups joined in purpose.  The concern therefore should not be that U.S. courts will become the world’s courts.  Rather it’s that any court, in any nation, can assert authority to right what it perceives to be the world’s wrongs.  If human rights involves contested ideals, it’s unclear that the human rights community should desire that sort of pluralistic experimentation.  While we may be comfortable with a U.S. court developing human rights norms, there’s a significant question whether other courts will develop human rights tendentiously or not, or whether those conceptions of human rights will be more illiberal and non-western, or at least different than ours.

Through this lens, Justice Breyer’s concurrence takes on greater meaning than Chief Justice Roberts’ opinion or even Justice Kennedy’s.  The Roberts opinion was hardly surprising.  It tracked what the Court had done in Morrison and how the Court’s more conservative justices had generally interpreted the presumption against extraterritoriality.  Commentators may disagree whether the use of the presumption was doctrinally correct, but the opinion was broadly consistent with how other jurisdictional statutes have previously been interpreted.  Rarely has the Court found that Congress intended to use all the power granted to it under international law or the U.S. Constitution (see, e.g., the interpretations of the…

A Response to Milanovic: The Lure of Extraterritoriality

by Austen Parrish

Austen Parrish is a Professor of Law and the Vice Dean at Southwestern Law School.

I’m grateful to Opinio Juris for inviting me to comment on Marko Milanovic’s book on the Extraterritorial Application of Human Rights Treaties. The book makes a meaningful contribution to an increasingly important issue of treaty interpretation, and the book’s sweeping treatment of how different courts and entities have addressed whether treaty-based human rights obligations apply beyond borders deserves praise. Few authors have provided this sort of detailed doctrinal description, and none to this degree of thoroughness. For these reasons, the book is a valuable resource.

Because I see much to praise in Marko’s work, my comments are less in the form of a critique and more in the form of a set of observations, with the hope that they will spur further discussion. Given space constraints, I’ll limit myself to three.

First, a key assessment underlying much of the book’s prescription is that current approaches to jurisdiction are often unprincipled and conceptually confused. Marko is likely correct in that diagnosis. But is that a bad thing? Unlike Marko, I’m not as convinced that this confusion is necessarily problematic, at least if I confine my objectives to the goal of promoting human rights. Broadly interpreting human rights treaties to be geographically unbounded will not for certain advance human rights. Nor do I believe Marko’s particular prescription – advocating for a distinction between positive and negative obligations – will necessarily do so either.

Morrison and Extraterritoriality: More Thoughts

by Austen Parrish

[Austen Parrish is a Professor of Law and Vice Dean at Southwestern Law School.  His scholarship focuses on extraterritoriality and the uses of domestic law and courts to resolve transboundary challenges.]

The decision is yet a day old, and already much has been said about Morrison.  As Julian notes, there is a lot to ponder in the case.  But some quick initial reactions perhaps are worth making.

In some ways, the case is not remarkable.  The decision and concurrence are as much focused on classic debates over statutory interpretation and the relationship of the courts to the legislature than anything peculiar to extraterritoriality.  Justice Scalia, applying a robust presumption against extraterritoriality, embraces a clear statement rule: the court should not presume that Congress intends to regulate the overseas conduct of foreigners absent clear and unmistakable evidence of Congressional intent.  The concurrence, written by Stevens, in contrast reflects a greater willingness to engage in a broader search for legislative intent.  While conflicting rationales may exist behind the decision, the Court as a whole is nervous over broadly expanding the geographic reach of U.S. laws absent at least some evidence that Congress intended the laws to apply so broadly.  Unlike in the antitrust context, Congress had not revised the anti-fraud provisions of the Securities Act to define the scope of its application in cases involving foreign elements. To this extent, the opinion is in line with the Court’s other recent pronouncements involving extraterritorial laws, such as in cases like Microsoft v. AT&T (2007), Small v. United States (2005), Spector v. Norwegian Cruise Line (2005), F.Hoffman-La Roche v. Empagran (2004) etc., where the presumption against extraterritoriality, in varying degrees, has been consistently reaffirmed.

In other ways, however, the case could potentially have wide ranging implications.  The case emphatically sweeps away the prior understanding of many lower courts that the U.S. Securities Law can apply to fraudulent investment deals outside the U.S., if those deals have some effect within U.S. territory.  The opinion, however, has implications in other contexts, separate and apart from the securities laws.  Over the last few decades, the so-called effects test has been used increasingly by courts as a way to allow U.S. courts to remedy transnational harms.  No longer limited to the antitrust or commercial contexts, courts apply all sorts of public and private laws to activity occurring abroad.  Courts have done so even when Congress has been silent, and no legislative intent can be found.  Several courts have assumed extraterritorial jurisdiction based on the fiction that Congress inevitably intends to regulate all conduct where adverse effects are felt within the United States.  The decision in Morrison should curtail that controversial practice.

The opinion may also have a very immediate impact.  The Court is considering whether to grant certiorari in the case British American Tobacco Co. v. United States. That case, in the context of the U.S government’s RICO suit against the tobacco industry asks whether civil RICO applies to the overseas conduct of a British defendant.  In that case, the D.C. Circuit bypassed the presumption against extraterritoriality and held that once an effect is felt within the United States, extraterritorial jurisdiction may be presumed.  The D.C. Circuit went beyond earlier lower court decisions that suggested that when an effect is felt in the United States, the presumption is reversed.  On Monday, the Court will announce its decision whether to accept certiorari in the BATCO case.  As John Elwood has pointed out over at the Volokh Conspiracy, it “may be that the Court simply decides to grant, vacate, and remand [the BATCO case] in light of [the Morrison] decision.” .  An amicus brief on that case, in which I was involved, can be found here.

While I have mixed emotions as to whether a clear a statement should be required from Congress or whether legislative intent to regulate extraterritoriality can be ascertained in other ways, the Court’s decision seems a step in the right direction.  A patchwork of incompatible rules has governed issues of extraterritoriality.  Although many scholars are nervous about a broad reading of the presumption against extraterritoriality, Morrison reaffirms the continuing importance of that canon of construction and should therefore make it easier for lower courts to apply.  More importantly, the case should temper the excesses of a broadly read effects test, which in recent years has given U.S. courts near universal jurisdiction.  As I have argued elsewhere, the effects test is problematic for a number of reasons and limiting its import through use of the presumption against extraterritoriality, seems a positive development.

A final point.  Although the more conservative and the more liberal members of the court are in general agreement that legislation should not be automatically read to apply to foreign conduct, the rationale behind that agreement is likely very distinct (more so than what is revealed by the Scalia-Stevens sparring over statutory interpretation).  While the more conservative justices are concerned about canons of construction, clear statement rules and legislative prerogative, the court’s more liberal members appear concerned with unreasonably interfering with the sovereign interests of other nations and to avoid unnecessary conflict between nations.  How this alliance will play out in other cases on the margins, particularly non-market cases involving environmental, labor, and other public laws, is less than clear.

A Response: Reciprocal Unilateralism

by Austen Parrish

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.

The Risk of Using Domestic Law to Solve Transboundary Harm

by Austen Parrish

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.