INTRODUCTION

This chapter compares and analyzes the international legal issues arising from transboundary environmental pollution and international terrorism. At first glance, it might appear to be somewhat peculiar to consider such disparate topics alongside one another. However, the potential cross-border effects of terrorism and pollution, as well as the fact that, in the vast majority of cases, the resulting harm is the result of nonstate actors, makes such an examination worthwhile. Moreover, both of these transboundary phenomenons share one vitally important characteristic: they cannot be left to the respective domestic legal orders alone, but need common action in order to raise an effective response.

This examination is facilitated by considering the features of international environmental law arising out of the historic Trail Smelter arbitration and the emerging international law on transboundary terrorism, which allows for a consideration of international law's general mechanisms for combating all manners of transboundary harm. Such a consideration gives rise to the interesting question of whether these legal mechanisms constitute special international law, or whether they are, in fact, merely applications of the general law of state responsibility.

The legal mechanisms developed by international law to combat transboundary pollution and international terrorism share two important features. First, international law has placed the prevention of transboundary harm at the very center of both, whereas the responsibility of states, the “curative” side of international law, does not seem to be the preferred strategy to combat transboundary harm.