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Transboundary Environmental Disputes along the Canada-US Frontier: Revisiting the Efficacy of Applying the Rules of State Responsibility

Published online by Cambridge University Press:  09 March 2016

Kevin R. Gray
Affiliation:
Trade Law Bureau, Canadian Department of Foreign Affairs and International Trade
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Summary

The efficacy of the rules of state responsibility for transboundary environmental harm can be questioned in light of recent disputes between Canada and the United States. Stemming from the “no-harm” principle, the obligation to prevent transboundary damage represents an integral part of international environmental law. It is reflected in a wide body of international treaties, mirroring state practice. It also forms the basis for international cooperation on transboundary and global environmental issues. This article examines how the rules of state responsibility regarding transboundary environmental damage are applied by two states that share a long contiguous border and a legacy of amicable relations. Upon examination, the limits of such rules are increasingly becoming evident in light of some recent disputes. Attempts to overlook the rules of state responsibility, paralleled with the exercise of extraterritorial jurisdiction, have undermined the status of the rules of state responsibility. Moreover, these phenomena highlight the difficulty of applying loosely defined international legal principles to practical situations where vested interests beyond those of the states involved are at play.

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Articles
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 2006

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References

1 See Shaw, M., International Law, 5th edition (Cambridge: Cambridge University Press, 2003)CrossRefGoogle Scholar; and Brownlie, I., System of the Law of Nations: State Responsibility, Part I (Oxford: Oxford University Press, 1983).Google Scholar

2 Sic utere tuo ut alenum non laedas can be translated to “one should use his own property in such a manner as not to injure that of another.” Black’s Law Dictionary, 6th edition (1990) at 380. Justice Sutherland in Village of Euclid v. Amber Security and Reality Co., (1926) 272 U.S. 365 at 386, noted that this “maxim lies at the foundation of so much of the common law of nuisances).”

3 See Barcelona Traction, [1970] I.C.J. Rep. 3.

4 Agreement between the Government of the United States of America and the Government of Canada on Air Quality ( 1991 ) 30 I.L.M. 676 [Air Quality Agreement] . See also Moller, E. K., “Comment: The United States-Canadian Acid Rain Crisis: Proposal for an International Agreement” (1989) 36 U.C.L.A. L. Rev. 1207 at 1212.Google Scholar

5 Article IX states that the reports by the Commission are “not regarded as decisions of the questions or matters so submitted either in the facts or the law, and shall in no way have the character of an arbitral award.” Under Article X, binding “decisions” can be made only if both parties consent. In the history of the International Joint Commission (IJC), there have been only two instances where no consensus was reached, and, resultantly, separate reports were issued by each government.

6 Treaty between the United States and Great Britain Relating to Boundary Waters between the United States and Canada, 36 Stat. 2448; T.S. 548 [Boundary Waters Treaty]. At the time, Canada and the United States were involved in a dispute over the diversion and use of the St. Mary and Milk Rivers in the prairies that cross the Saskatchewan-Montana border. This dispute, much like previous transboundary water cases, was addressed by ad hoc tribunals who resorted mainly to private common law riparian rights in their rulings.

7 See Great Lakes Water Quality Agreement, 22 November 1978, 30 U.S.T. 1383.

8 Pakoolas v. Teck Cominco Metals Ltd. (2004), 35 E.L.R. 20083, U.S. Dist. Ct, No. CV-04-256-AAM [Teck Cominco].

9 See Trail Smelter Arbitration (United States v. Canada), (1935) R.I.A.A. 3 at 1965, reprinted in (1939) 35 Am. J. Int’l L. 182 and 684 [Trail Smelter].

10 Chorzów Factory Case (Indemnity), Jurisdiction, (1927), P.C.IJ. (Ser. A), No. 8/9, 21 at para. 259; Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, [1997] I.C.J. Rep. 92 at para. 152 (25 September) [Gabčíkovo-Nagymaros]; and Avena and Other Mexican Nationals (Mexico v. United Stales of America), Judgment, [2004] I.C.J. Rep. 128 at para. 119.

11 Brownlie, I., State. Responsibility (Oxford: Oxford University Press, 1983).Google Scholar

12 See Article 194 of the UN Convention on the Law of the Sea(1982) 21 I.L.M. 1261 [LOSC], which requires states to control pollution of the marine environment from any source, using as its purpose the best practicable means at their disposal and in accordance with their capabilities. See also US Third Restatement of Foreign Relations Laxo of the United States (Philadelphia, PA: American Law Institute, 1987) [US Third Restatement].

13 Okowa, P. N., State Responsibility for Transboundary Air Pollution in International Paw (Oxford: Oxford University Press, 2000)) at 82 CrossRefGoogle Scholar. Many transboundary pollution environmental treaties allow for varying requirements that contextualize the duty to prevent based on developmental concerns. For example, see Article 2 of the Convention on Long-Range Transboundary Air Pollution, (1979) I.L.M. 1442 [LRTAP Convention].

14 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, UN Doc. A/56/10 (2001), reprinted in Crawford, J., The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002)Google Scholar [ILC Draft Articles]. The ILC Draft Articles were approved by the United Nations General Assembly in 2001 but were never presented to the UN in a form for state signature or ratification. As a result, some of the articles can be viewed as a consolidation of customary international law or a secondary source of public international law reflecting the views of the “most highly qualified publicists” pursuant to Article 38(d) of the Statute of the International Court of Justice (1945) U.S.T.D. 993.

15 See Brownlie, supra note 11 at 132.

16 ILC Draft Articles, supra note 14, Articles 7-9. Under Article 9, acts of a person or persons are considered to be an act of the state where it is acting on behalf of the state and the person was exercising elements of the governmental authority in the absence of the official authorities and in circumstances that justified the exercise of those elements of authority.

17 See Crawford, supra note 14 at 110.

18 See Prosecutor v. Tadić, (1999) 38 I.L.M. 1518 at para 117.

19 Crawford, supra note 14 at 112. The ILC Draft Articles on private actors has confirmed the customary international law status of these articles covering when state responsibility flows from the actions of private actors. See Maffezini v. Spain, ICSID Case no. ARB/97/07, (2002) 5 U.C.S.U.D. Reo., 396; (2003) 124 I.L.R. 9 (decision on jurisdiction of 25 January 2000); and Salini v. Morocco, ICSID Case no. ARB/00/0, (2004) 6 I.C.S.I.D. Rep. 400, (2003) 42 I.L.M. 6og (decision on jurisdiction of 23 July 2001).

20 Corfu Channel (United Kingdom v. Albania), Merits, [1949] I.C.J. Rep. 4 [Corfu Channel]. In this case, the court acknowledged “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.”

21 See Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United States of America), Merits, Judgment, [1986] I.C.J. Rep. 14 [Nicaragua], The test for control is not subject to a high threshold as noted in Prosecutors. Tadić, ( 1999) 38 I.L.M. 1518 at 1541 .

22 Under the US Third Restatement, supra note 12 at sections 402 and 403, activity to be considered within a state’s jurisdiction occurs if the state exercises jurisdiction to prescribe law with respect to the activity.

23 See ibid., Article 4. See also Youmans claim (1926) R.I.A.A. 4 at 110; and Mallén claim (1927) R.I.I.A. 4 at 173.

24 See Corfu Channel, supra note 20.

25 Ibid, at 18.

26 Case Concerning United States Diplomatic and Consular Staff in Iran, [1980] I.CJ. Rep. 3. Iran’s failure to take necessary steps to protect the US embassy from seizure or regain control over it constituted a violation of the Vienna Convention on Consular Relations, (1969) 596 U.N.T.S. 261.

27 Ibid, at para. 74.

28 See Schering Corporation v. Islamic Republic of Iran, (1984) 5 Iran-U.S.C.T.R. 361.

29 See Crawford, supra note 14 at 123.

30 ILC Draft Articles, supra note 14, Article 55.

31 Jabbari-Gharabagh, M., “Type of State Responsibility for Environmental Matters in International Law (1999) 33(1) R.J.T. 63 at 79Google Scholar. See also Lac Lanoux Arbitration (France v. Spain) (1957) 24 I.L.R. 100 (Arbitral Tribunal) [Lac Lanoux].

32 Stockholm Declaration on the Human Environment, 16 June 1972, (1972) 11 I.L.M. 1420 [Stockholm Declaration]. In total, 112 states supported the adoption of Principle 21, with no states voting against it. The principle was subsequently confirmed by the United Nations General Assembly in UNGA Res. 2996 (XXVII) (1972); and Article 30 of the Charter of Economic Rights and Duties of States, UNGA Res. 3281 (XXVII) (1974).

33 See Rio Declaration on Environment and Development, 13 June 1992, (1992) 31 I.L.M. 874 [Rio Declaration]. Principle 21 is repeated in Article 3 of the Convention on Biological Diversity, (1992) 31 I.L.M. 822, as well as the preamble of the United Nations Framework Convention on Climate Change, (1992) 31 I.L.M. 849 [UNFCCC]. These documents refer to a “responsibility to ensure that activities with their jurisdiction or control do not cause damage to the environment.”

34 See the LRTAP Convention, supra note 13 at 219; Vienna Convention for the Protection of the Ozone Layer, (1990) 19 U.K.T.S. Cm 977 [Vienna Convention]; and Kuwait Regional Convention for Co-operation in the Protection of the Marine Environment, (1978) 17 I.L.M. 511. LOSC, supra note 12.

35 Charney, J. I.Third State Remedies in International Law” (1989) 10 Mich. J. Int’l L. 57 at 149.Google Scholar

36 Legality of the Threat or Use of Nuclear Weapons, [1996] I.C.J. Rep. 226 [Nuclear Weapons].

37 Sands, P., Principles of International Environmental Law, 2nd edition (Cambridge: Cambridge University Press, 2003) at 241 CrossRefGoogle Scholar. Judge Weeramantry, in his dissenting opinion, noted that Principle 21 does in fact mirror the general obligation and, therefore, is itself a principle of customary law. In Gabčíkovo-Nagymaros, supra note to, Judge Weeramantry added, in a separate opinion, that the general protection of the environment beyond national jurisdiction can be seen as an obligation erga omnes.

38 Nuclear Weapons, supra note 36 at para. 29.

39 Both Hungary and Slovakia referred to Principle 21 as the starting point for assessing their state obligations in the environmental field. See Okowa, supra note 13 at 70. Okowa adds (at 69) that the principle, including the principles found in the Trail Smelter dispute, has been relied upon by Canada in relation to air pollution disputes with the United States

40 This argument was raised by Australia, although the court, in the end, did not rule on this part since the dispute was ruled, by the majority, to be moot as a result of the French undertaking not to continue nuclear testing. However, several dissenting judges held that the Australian position on this point was well founded in law. See Okowa supra note 13 at 71.

41 See ILC Draft Articles, supra note 14 at 176.

42 Trail Smelter, supra note 9.

43 See LRTAP Convention, supra note 13, Article 5; Vienna Convention, supra note 34, Article 1(2); LOSC, supra note 12, Article 206; Convention on the Protection and Use of Transboundary Watercourses and International Lakes, (1992), 31 I.L.M. 1312, Article 1(2); and Convention on the Transboundary Effects of Industrial Accidents, (1992) 31 I.L.M. 1330, Article 1 (d). See also the preamble to the 1991 Air Quality Agreement between the United States and Canada, Can. T.S. 1991 No. 3.

44 Damages can be awarded for reimbursing the injured state for expenses reasonably incurred in preventing or remedying the pollution. See commentaries of ILC Draft Articles, supra note 14 at 251. Specific heads of environmental damage were outlined by the United Nations Compensation Commission, which assessed Iraqi liability for damages, including environmental damages, as a result of its unlawful invasion of Kuwait. See UN Security Council Res. 687 ( 1991 ) at para. 16.

45 Okowa, supra note 13 at 77.

46 See Schachter, O., International Law in Theory and Practice (Dordrecht/Boston: Martinus Nijhoff, 1991) at 365.Google Scholar

47 Bodansky, D., “Customary (and Not So Customary) International Environmental Law” (1995) 3 Ind. J. Global Legal Stud. 110-19.Google Scholar

48 Ibid. See also Schachter, O., “The Emergence of International Environmental Law” (1990) 44 J. Int’l Affairs 457.Google Scholar

49 Okowa, supra note 13 at 76, adds that the International Court of Justice (ICJ) in the Nicaragua case, supra note 21 at 186, did not require absolute uniformity for a rule of customary law as long as there is sufficient evidence to suggest that divergent practices are indications of a breach rather than an affirmation of a new emergent norm.

60 See LRTAP Convention, supra note 13. See also Protocol Concerning the Control of Emissions of Nitrogen Oxides or Their Transboundary Fluxes, (1988) 28 I.L.M. 214; Protocol on the Control of Emissions of Volatile Organic Compounds and Their Transbondary Fluxes, (1992) 31 I.L.M. 568; and Agreement between the Government of the United States of America and the Government of Canada on Air Quality, (1991) 30 I.L.M. 676.

51 Convention on Assistance in the Case of Nuclear Accident or Radiological Emergency, (1986) 25 I.L.M. 1370; and International Convention on Oil Pollution Preparedness Response and Cooperation, (1991) 30 I.L.M. 733.

52 LOSC, supra note 12, Article 194(2).

53 Okowa, supra note 13.

54 Article 8 of the LRTAP Convention, supra note 13, contains a footnote stipulating a commitment for parties to exchange information on the extent of that can be attributed to long-range transboundary air pollution. The footnote adds that the LRTAP Convention does not contain a rule on state liability as to damage. See also Sands, supra note 37 at 899.

55 Principle 7 of the Rio Declaration, supra note 33. Principle 13 calls on states to “cooperate, in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.” Principle 22 of the Stockholm Declaration, supra note 32, contains the same provision implying the lack of development in creating multilateral regimes, between 1972 and 1992, governing the consequences of a breach of state responsibility for transboundary environmental damage. See also the resolutions of the Institut de Droit International (IDI), the 1987 Resolution on Transboundary Air Pollution and the 1997 Resolution on Responsibility and Liability under International Law for Environmental Damage, (1998) 37 I.L.M. 1473.

36 See Gabćíhovo-Nagymaros, supra note 10. In this case, the court referred to the legal developments in the field of environmental law to interpret the state’s commitments under a treaty governing the construction of a dam on the Danube.

57 See Cohen, A., “Cosmos 954 and the International Law of Satellite Accidents” (1984) 10 Yale J. Int’lL. 78.Google Scholar

58 Convention on International Liability for Damage Caused by Space Objects ( 1972) 961 U.N.T.S. at 187. The treaty provides for various forms of responsibility including absolute liability (Article II), as well as liability based on fault (Article VI). The treaty provides for absolute liability to pay compensation for damage and harm to the environment caused by the space object on the surface of the earth or to aircraft in flight.

59 See Cassese, A., International Law (Oxford: Oxford University Press, 2001) at 389.Google Scholar

60 See the Cosmos 915 Satellite Incident explained, Cohen, supra note 57. See also the Fukuryu Maru incident involving damages and economic losses to Japanese fishermen resulting from US nuclear tests.

61 UN Framework Convention on Climate Change, 37 I.L.M. 32 (1998); and Montreal Protocol on Substances That Deplete the Ozone Layer, (1987) 26 I.L.M. 154.

62 The Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, (1993) 32 I.L.M. 1228, provides that an operator of a dangerous activity is not liable for damage caused by pollution at tolerable levels under local relevant circumstances (see Article 8(d)).

63 Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal, (1989) 28 I.L.M. 657.

64 Cartagena Protocol on Biosafety, (2000) 39 I.L.M. 1027 [Cartagena Protocol].

65 Some have claimed that this distinction is less important than examining the nature and significance of the harm as well as the reasonableness of the state’s actions. See Hunter, D., Salzman, J., and Zaelke, D., International Environmental Law and Policy (New York: Foundation Press, 1998) at 354.Google Scholar

66 Rylands v. Fletcher, (1868) L.R. 3 H.L. 330.

67 Corfu Channel, supra note 20. See Jenks, W., “Ultra-hazardous Liabilities” (1966) 117 Ree. des Cours 122.Google Scholar

68 See ILC Draft Articles, supra note 14. The OECD Environment Committee noted that there is a “custom based rule of due diligence imposed on all states in order that activities carried out within their jurisdiction do not cause damage to the environment of other states, which includes establishing and applying an effective system of environmental law and regulation, and principles of consultation and notification.” See report by the Environment Committee, Responsibility and Liability of States in Relation to Transfrontier Pollution, 14 November 1974, Doc. C (74)224 (1974) at 4.

69 See Barron, J., “After Chernobyl: Liability for Nuclear Accidents under International Law” (1987) 25 Colum. J. Transnational L. 647 at 660.Google Scholar

70 See Margraw, D., “The Transboundary Harm: The International Law Commission’s Study of International Liability” (1986) 80 Am. J. Int’l L. 305 at 313.CrossRefGoogle Scholar

71 In these situations, civil liability can result irrespective of the existence of any breach of international law by a state.

72 Convention on the Conservation of Antarctic Marine Living Resources, (1980) 19 I.L.M. 84. Under Article 8(10)), the state must allow for recourse in its national courts for the adjudication of liability claims against the sponsored operator.

73 Belotsky, L.State Responsibility and Liability for Damage to the Environment,” in Gambaro, A. and Rabello, A. M., eds., “Towards a New European Jus Commune. Essays on European, Italian and Israeli Law in Occasion of 50 years of the E.U. and of the State of Israel (Jerusalem: Hebrew University Press, 1999), 237 at 253.Google Scholar

74 See Convention on Environmental Impact Assessment in a Transboundary Context, (1991) 30 I.L.M. 802; and Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters, (1998) 39 I.L.M. 517. See also Gray, K. R., “The Internationalization of Environmental Impact Assessment: Potential for a Multilateral Environmental Agreement” (2000) 11 (1) Colo. J. Int’I Envtl. L. & Pol’y 101.Google Scholar

75 In the Gabćíhovo-Nagymaros; dispute, supra note 10, Hungary argued that the obligation to ensure that activities on their territory did not cause significant transboundary harm implied a subsidiary duty to conduct an environmental impact assessment (EIA). This point was not opposed by the Slovak Republic.

76 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Case 2006/17 [Pulp Mills]. The duty to notify and consult is based on obligations under the 1975 Statute of the River Uruguay, which was agreed to by both parties. See <http://www.icj-cij.org/icjwww/idocket/iau/iauframe.htm>.

77 See Handl, G., “Compliance Control Mechanisms and International Environmental Obligations” (1997) 5 Tul. J. Int’l & Comp. L. 29 Google Scholar; Koskenniemi, M., “Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol” (1992) 3 Y.B. Int’l Envtl. L. 123.Google Scholar

78 See Handl, supra note 77. Some critics argue that where such mechanisms are weak or simply unenforceable, there is a stronger justification for using coercive measures such as countermeasures to ensure compliance (at 94). See Peel, J., “New State Responsibility Rules and Compliance with Multilateral Environmental Obligations: Some Case Studies of How the New Rules Might Apply in the International Environmental Context” (2001) 10(1) R.E.C.I.E.L. 82.Google Scholar

79 See Peel, supra note 78. On the general contrast between bilateralism and communitarianism in international law, see Simma, B., “From Bilateralism to Community Interest in International Law” (1993-VI) Ree. des Cours 221.Google Scholar

80 See Kiss, A., “Present Limits to the Environment of State Responsibility for Environmental Damage,” in Francioni, F. and Scovazzi, T., eds., International Responsibility for Environmental Harm (London: Graham and Trotman, 1991), 3 at 13.Google Scholar

81 It has been argued that injunctive relief is perhaps the most effective way to operationalize the duty to prevent transboundary environmental harm and corresponding state responsibility due to the inherent difficulties in quantifying environmental damages, problems in linking causation to injury as well as difficulty of linking compensation to irreparable harm. See Amoco Production Co. v. Village of Campbell, (1988) 480 U.S. 531, 107 S. Ct. 1396. In Gabćíhovo-Nagymaros dispute, supra note 10, Hungary was ruled to be entitled to compensation for damages sustained as a result of the diversion of the Danube but there was no specific mention on whether reparation was available for purely environmental damages (para. 151).

82 Vicuñna, F. O., “State Responsibility, Liability, and Remedial Measures under International Law: New Criteria for Environmental Protection,” in Weiss, E. B., ed., Environmental Change and International Law: Neiv Challenges and Directions (Tokyo: UNU Press, 1992).Google Scholar

83 Ibid, at para. 147

84 See Great Lakes Water Quality Agreement, supra note 7, as amended by the protocol signed 18 November 1987. Another notable regime is under the La Paz Agreement between the United States and Mexico on Cooperation for the Protection and Improvement of the Environment in the Border Area, (1993) 32 I.L.M. 289, as well as the 1992 Integrated Environmental Border Plan for the Mexican-US Border Area, Washington, DC (February 1992).

85 See Vicuñna, supra note 82.

86 Between 1916 and 1940, the Trail Smelter emitted between 100 and 700 tonnes of sulphur dioxide per clay. See Hess, G., “Trail Smelter, the Columbia River, and the Extraterritorial Application of CERCLA” (2005) 18(1) Geo. Int’l Envtl. L. Rev. 1 at 1.Google Scholar

87 The company was officially renamed Cominco Limited. In 1996, it merged with Teck Limited, and, in 2001, the company become Teck Cominco Metals Limited, which is the current owner of the smelter.

88 Consolidated was able to settle half of these claims while the remaining half was resolved under arbitration in British Columbia. In addition to the compensation, Consolidated was able to purchase smoke easements from the affected property owners. By comparison, US farmers had filed claims in US courts against a smelter on the US side of the border but were unsuccessful with the exception of one farmer who sold a smoke easement. (Consolidated was unable to purchase smoke easements from Washington farmers since Washington law prohibited foreign ownership of lands in the state. See MJ. Robinson-Dorn, “The Trail Smelter: Is What’s Past Prologue? EPA Blazes a New Trail for CERCLA” (2005) 14 N.Y.U. Envtl. L.J. 233 at 246-47.

89 The US Supreme Court, in International Shoe Co. v. Washington, (1945) 326 U.S. 310, allowed for the exercise of personal jurisdiction where the foreign defendant had minimum contacts with the state. This, in fact, has also allowed Canadian plaintiffs to launch proceedings in US courts for damages from US-based facilities. See Miehie et al, v. Great Lakes Steel Division, Nation Steel Corp., 495 F. 2d213 (6th Cir. 1947), 419 U.S. 994 (1974).

90 Trail Smelter, supra note 9.

91 See 1935 (Convention for Settlement of Difficulties Arising from Operation of Smelter at Trail, British Columbia, 15 April 1935, U.N.T.S. 74. Included in this agreement was the authorization given to the arbitrator to set emissions levels.

92 Under Article IV of the Boundary Water Treaty, supra note 7, which established the IJC, both national and international law can apply.

93 Trail Smelter, supra note 9 at 1965.

94 The arbitration awarded US $78,000 in compensation.

95 Trail Smelter, supra note 9 at 1907. The United States later refunded some of that money after the tribunal ruled there was not enough evidence to prove damages to livestock or businesses.

96 See Sands, supra note 37 at 242, referring to the International Law Association, Report of the Committee on Ilegal Aspects of the Environment, 60th Conference Report, (1984) at 163.

97 See Corfu Channel, supra note 20. See also Lac Lanoux, supra note 31, where the tribunal ruled that the upstream state cannot ignore the downstream state’s interests and must respect them with such rights being considered when diverting an international river. In obiter dicta, the panel also ruled that where the proposed work would damage Spanish interests through chemical or thermal pollution, France would incur responsibility (at 101 and 123).

98 Interestingly, Article II of the Boundary Waters Treaty, supra note 6, allows for an “injured” party to seek relief in either state’s courts if the injury took place in the other country. However, this article is applicable to water diversions but not to pollution.

99 A. Crook, Trail Smelter (Environmental Mining Council of British (Columbia, 2003), <http://www.miningwatch.org/emcbc/Publications/briefing_papers/trail.htm>.

100 Ibid.

101 It should be noted that in the roughly 100 years of pollution of the Columbia River flowing into Lake Roosevelt, there were several other smelting operations operating on the US side, but these are no longer in operation.

102 This has been disputed by Teck Cominco who argue that recent water quality tests by BC Environment, Lands and Water show water quality levels in the Columbia River exceed Canadian government standards, whereas fish tissue for mercury are at levels in accordance with Canadian standards. See “Teck Cominco Responds to Misleading Reports on Trail Smelter,” <http://www.teckcominco. com/news/04-archive/04-18-tc.htm>.

103 Much of the slag now coats the bottom of Lake Roosevelt, a 150 kilometre-long reservoir created when the Grand Coolie Dam was built on the Columbia River in the 1940s.

104 The EPA also claims that the Trail smelter also produces a variety of sulphur products and agricultural fertilizers, which represent a potential source of mercury.

105 Vertical Distribution of Trace-Element Concentrations and Occurrence of Metallurgical Slag Particles in Accumulated Bed Sediments of Lake Roosevelt, Washington, (2002), <http://water.usgs.gov/pubs/sir/2004/5090/>. Canadian scientists had discovered that copper and zinc can leach from the slag into the river. In 1995, Teck Cominco decided to stop dumping the slag.

106 US Environmental Protection Agency (EPA) Region 10, Unilateral Administrative Order for Remedial Investigation/Feasibility Study, Docket No. CERCLA-10-2004 (11 December 2003).

107 Comprehensive Environmental Response, (Compensation, and Liability Act, 42 U.S.C, at paras. 9601 [CERCIA].

108 11 December 2003. At the same time, Teck Cominco still offered to have its US-based corporate affiliate investigate the risks and fund the appropriate clean-up.

109 Embassy of Canada to US Department of State, Diplomatic Note (8 January 2004). See <http://www.teckcominco.com/articles/roosevelt/motion-attach-c-040102.pdf>.

110 The British Columbia government is also concerned since the company operates under a permit issued by its regulatory authority, which had specifically allowed for slag releases into the waterways. Other stakeholders weighed in on the court’s ruling on this point. For instance, the US Chamber of Commerce expressed concern that extraterritorial application of CERCIA would “have significant negative consequences for many U.S. businesses, particularly those operating in areas close to our nation’s borders” and that it may engender retaliation from foreign governments. See Letter Brief in Support of Petition for Permission to Appeal under 28 U.S.C. § 1292(b). The Chamber of Commerce submitted an amicus curiae letter to the court on 7 January 2005.

111 Canada was partially concerned that the study would not distinguish between historical discharges and the more current discharges. See George, G., “Over the Line-Transboundary Application of CERCLA” (2004) 34 Eur. L. Rev. 10275 at 10275.Google Scholar

112 Superfund is a US federal government program established to clean up uncontrolled hazardous waste sites that pose a current or future threat to human health or the environment. The EPA identifies the hazardous waste sites, tests the site’s conditions, formulates clean-up plans, and ultimately cleans up the sites.

113 The Colville Nation, whose reservation borders the river, operates a casino and other businesses offering boat rentals, gasoline, and food. Subsequently, the state of Washington joined the citizen’s suit.

114 8 November 2004. Tech Cominco, supra note 8.

115 In certifying the case, the judge noted that the case involves a “controlling question of law” with substantial grounds for disagreement with the ruling.

116 Ibid, at 53.

117 Ibid.

118 Nevertheless, the court did not find any conclusive language in the statute or in its legislative history indicating that a foreign corporation cannot be held liable as an owner or operator as defined in CERCLA’s section 9607 provisions for response costs and damages.

119 Ibid, at 20. The court, at 32, added that “Canada’s own laws and regulations will not compel the Canadian facility to clean up the mess in the United States which it has created.” However, a wider view of whether there is a conflict arises from the fact that Canadian authorities parallel the operation of the smelter and emit the pollutants that the US retroactively alleges is contrary to US law by way of the remediation order. See T. Grossman, “Extraterritorial Reach of U.S. Environmental Laws: the Teck Cominco Decision,” paper presented at Canadian Bar Association Conference, Second Annual Environmental, Energy and Resources Summit Canada-U.S. Cross-Border Issues, April 2006.

120 Lotus (France v. Turkey), 1927 P.C.I.J. (Ser. A) No. 9 (7 September 1927) [Lotus].

121 See Brownlie, I., Principles of Public International Law, 6th edition (Oxford: Oxford University Press, 2003) at 239 Google Scholar; Fitzmaurice, G., “The General Principles of International Law Considered from the Standpoint of the Rule of Law” (1957) 92 Hague Recueil 1 at 56Google Scholar; and Lauterpacht, E., International Law: Collected Papers (London: Cambridge University Press, 1970)Google Scholar. The court ruled that the Turkish authorities had wide discretion to extend its criminal law jurisdiction beyond its territory partly due to the absence of rules prohibiting this. Article 11(1) of the (Convention on the High Seas, 29 April 1958, 450 U.N.T.S. 11; and Article 97(1) of the LOSC, supra note 12, have explicitly overturned this finding, allowing a state to exercise penal or disciplinary proceedings over its nationals.

122 In one case decided by the European Court of Justice, a Netherlands plaintiff was successful in obtaining damages for pollution originating upstream from a source in France although this was a decision to accept the enforcement of a existing judgment in tort law. See Handelswerkerig G.J. Bier B. V. v. Mines de Potasse D’Alsace S.A, Ca.se No. 21/76, [1976] E.C.R. 1735).

123 See United States v. Aluminium Co. of America, 148 F. 2nd 416 (2nd Cir. 1945). Although laws for injury and damages from environmental harm have been applied extraterritorially in European courts in the 1970s, these actions were only initiated by private actors rather than by state authorities enforcing their domestic law against foreign entities. See Brunnée, J., “The United States and International Environmental Law: Living with the Elephant” (2004) 15 Eur. J. Int’l L. 617 at 633.CrossRefGoogle Scholar

124 See US Third Restatement, supra note 12 at sections 402 and 403, which states that under US statutory law (both federal and state levels) US law applies only to “conduct occurring within, or having effect within, the territory of the United States.”

123 Ibid, at 124. In these cases, private remedies are sought by the victims.

126 See ARC Ecology v. U.S. Department of the Air Force, 294 F. Supp 2d 1152, 1156 (N.D. Cal. 2003) (appeal pending), where the courts dismissed an attempt to require remedial investigation of former US military bases in the Philippines.

127 CERCLA, supra note 107 at para. 101 (8).

128 During the drafting of CERCLA, the State Department had provided limited geographical scope to the definition in order to prevent the use of any authority to assert jurisdiction over foreign vessels and foreign nationals “in a manner inconsistent with general principles of international law and specific U.S. treaty obligations.” Comments of Senator Cannon, 126 Congressional Record 26056 (18 September 1980).

129 Teck Cominco, supra note 8 at 28.

130 Ibid, at 37-38.

131 CERCLA, supra note 107 at para. 9601 (20)(A)(ii).

132 Ibid, at 9601(17)(18).

133 Ibid, at 9601 (19).

134 Teck Cominco, supra note 8 at 39.

135 CERCLA, supra note 107 at para. 9601 (9) (B).

136 Teck Camnico, supra note 8 at 40.

137 Ibid.

138 CERCI A, supra note 107 at para. 9607 (j). However, the use of this exemption is circumscribed by the qualifications that the releases must be expressly permitted, not exceed the limitations established in the permits. See United Slates v. Iron Mountain Mines, 912 F. Supp. 1528 (1992), which denied the defence when the terms of the permit were breached by the respondent.

139 It should be noted that in British Columbia, no “permit compliance” defence is available to avoid liability. See Robinson-Dorn, supra note 88 at 312.

140 See George, supra note 111 at 10278.

141 See CERCLA, supra note 107 at para. 106(b)(2).

142 Ibid. at section 111.

143 Teck Cominco, supra note 8 at 12.

144 Ibid.

145 Ibid, at 44. A federally permitted release would still not be a defence to a cleanup order.

146 Ibid, at 45. Liability under the Clean Air Act, infra note 209 and the Clean Water Act, infra note 208, were mentioned.

147 Regulation of the Teck Cominco smelter is subject primarily to provincial jurisdiction in Canada. The government of Canada has exercised jurisdiction under the Fisheries Act (1996), requiring the smelter to cease discharges of slag that have impacts on fish habitat.

148 Craik, N., “Trail Smelter Redux: Transboundary Pollution and Extraterritorial Jurisdiction” (2004) 14 J. Envtl. L. & Prac. 139 at 141.Google Scholar

149 Teck Cominco, supra note 8. See Kormos, C. et al., “US Participation in International Environmental Law and Policy” (2001) 13 Geo. Int’l Envtl. L. Rev. 661 Google Scholar; and Murphy, S. M., “Extraterritorial Application of NEPA” (2003) 97 Am. J. Int’l L. 962.Google Scholar

150 See Smith v. Untied States, (1993) 507 U. & S. 197. According to the ratio in Smith, there must be clear evidence in the statute to demonstrate that it is to be applied extraterritorially. See also Equal Employment Opportunity Commission v. Arabian American Oil Company, (1991) 499 U.S. 244, where the court ruled that for an intention of the law’s application beyond national borders, “affirmative evidence clear manifested” is needed. For an extensive discussion of the US jurisprudence regarding the extraterritorial application of US laws, see Dodge, W. S., “Understanding the Presumption against Extraterritoriality” (1998) 16 Berkeley J. Int’l L. 85 Google Scholar. See also the recent Supreme Court pronouncement in F Hoffman-La Roche Ltd. v. Empagran S.A., 124 S. Ct. 2359, 2366 (2004) [Hoffman], where the court cautioned against applying US law extraterritorially in order to avoid interference with the sovereign authority of other nations and therefore clear and affirmative indication to do must be indicated in the statute.

151 This doctrine was first applied in Foley Bros., Inc. v. Filardo, where the court ruled that US labour laws requiring an eight-hour work day, and overtime afterwards did not apply for work performed in Iraq. The doctrine was confirmed in EFOC v. Arabian American Oil Co., 499 U.S. 244 (1991) [Aramco], where the court held that Title VII of the Civil Rights Act (1964) does not apply to employment practices of US employers who employ US citizens abroad.

152 See Aramco, supra note 151 at 258. The presumption against extraterritoriality can be sourced back to American Banana v. United Fruit Co., 213 U.S. 347 (1909), involving a case where the defendant was alleged to hold a monopoly over trade in bananas and, therefore, was in violation of US law. The Supreme Court dismissed the claim holding that “the general and almost universal rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the county where the act is done.”

153 See Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804), where the court ruled that “an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains.”

154 See United States v. Aluminum Co. of America, 148 F. 2d 416 (2d Cir. 1945). See also Hartford Fire Ins. Co. v. California, 113 S. Ct. 2891 ( 1993). The Federal Trade Improvement Antitrust Act (FTAIA) of 1982, provides that US anti-trust law only applies to foreign conduct if such conduct has (1) a “direct, substantial, and reasonably foreseeable effect” on the US market; and (2) “such effect gives rise to a claim under the provisions of the Sherman Act. See also Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909 (D.C. Cir. 1984). However, see Hoffman, supra note 150, where the Supreme Court restricted the applicability of US anti-trust laws with regard to injuries suffered abroad independently from effects on the US market.

155 For this point, the court referred to the decision in Environmental Defense Fund v. Massey, 300 U.S. App. D.C. 65, 986 F.2d 528 (D.C. Cir. 1993). In this case, the District Court held that there was no issue of extraterritorial application to National Environmental Policy Act (NEPA) (requirement to undertake an environmental impact assessment), infra note 182, actions in Antarctica since Ant-arctica is part of the global commons where no state has sovereignty and, as a result, there is no scope for conflict between US laws and laws of other nations.

156 In National Resources Defense (Council v. Dep’t of the Navy, No. o 1 -07781, 2002 W.L. 32095131 (CD. Cal. 17 September 2002), the court ruled that the federal Environmental Protection Agency (EPA) can be applied to the US Navy’s littoral Warfare Advanced Development program, which used sonar and therefore had an impact on, due to the sonar pulses traveling at low frequencies that travel hundreds of miles, a number of ocean species including marine mammals. The court was careful to make the distinction however that the EPA requirements were merely procedural and had no substantive effects outside the United States. The court refused to infringe other nations’ sovereignty or implicate important foreign policy concerns (at 10).

157 In Born Free USA v. Norton, No. 03-1497, 2003 U.S. Dis. (8 August 2003), the plaintiffs attempted to stop the import of eleven elephants from Swaziland, arguing that the US Fish and Wildlife Service was required to conduct an environmental impact review as required by NEPA. The court expressed reluctance to conduct an environmental analysis that would result in challenging the validity of Swaziland’s decision to permit the exports. For the ban of extraterritorial application of the Endangered Species Act, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 222 E.L.R. 20913 (1992). In the decision in Center for Biological Diversity v. National Science Foundation, No. 02-5065, 2002 W.L. 31548073 (N.D. Cal. 30 October 2002), the court ruled that the research conducted by the National Science Foundation in the Gulf of California, which had potential effects on Mexico’s exclusive economic zone (EEZ), did not impinge on Mexican sovereignty since most of the research took place outside the Mexican territorial waters and the decision-making process for organizing and planning the project was secured in the United States. The United States, in its domestic law, does not recognize that the EEZ of other nations are considered part of its territorial waters and therefore they are considered to be part of the high seas or global commons.

158 Subaf I.L.M.s, Ltd. v. MGM-Pathe Communications Col, 24 F. 3d 1088, 1095-6 (9th cir. 1994).

159 Environmental Defence Fund v. Massey, 986 F. 2d 528 (DDC 29 January 1993) at 533.

160 Canada included in its amicus brief offers to negotiate a settlement with the United States or a reference to the IJC pursuant to Article IX of the Boundary Waters Treaty, supra note 6.

161 See Societé Nalionale industrielle Aeropsatiale v. United States District Court, 482 U.S. 522, (1987); and Hilton v. Guyot, 159 U.S. 113 (1895).

162 There is an excellent discussion of this tension between extraterritorial application and the need to combat limitations for plaintiffs to sue for transboundary environmental damage in the International Law Association (ILA), Transnational Enforcement of Environmental Law Committee Report from the Berlin Conference (2004). See also Beaumont, P., “Private International Law of the Environment” (1995) Judicial L. Rev. 35.Google Scholar

163 Bering Sea Fur Seals Fisheries Arbitration (Great Britain v. United States), (1893) Moore’s Int’l Arb. 755.

164 United States - Restrictions on Imports of Tuna, GATT Doc. DS21 /R (unadopted) (3 September 1991).

165 General Agreement on Tariffs and Trade, (1947) 55 U.N.T.S. 194.

166 US - Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, 12 October 1998, (1999) 38 I.L.M. 118; and US - Import Prohibition of Certain Shrimp and Shrimp Products; Recourse to Article 21.5 of the DSU by Malaysia, Doc. WT/DS58/AB/RW (22 October 2001).

167 In this case, Turkish criminal law was applied to a French national on a French ship although the effects were felt in Turkey. See Lotus, supra note 120 at 1920. Turkish jurisdiction applied to the acts of a French officer in French territory (that is, a ship) and was held not to conflict with international law because the “effects” of his action were felt in Turkish territory (that is, a Turkish ship).

168 Fisheries Jurisdiction (Spain v. Canada), [1998] I.C.J. Rep. 432.

169 Rio Declaration, supra note 33, Principle 12.

170 See also Principle 18, ibid., which declares that “States shall immediately notify other States of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those States.”

171 See Hunter, D., Salzman, J., and Zaelke, D., International Environmental Law and Policy (New York: Foundation Press, 1998).Google Scholar

172 See generally Nye, J., Paradox of American Power: Why the World’s Only Superpower Can’t Go It Alone (New York: Oxford University Press, 2002).Google Scholar

173 See Spracker, S. and Naftalin, E., “Applying Procedural Requirements of U.S. Environmental Laws to Foreign Ventures: A Growing Challenge to Business” (1991) 25 Int’l Lawyer 1043 at 1051-52.Google Scholar

174 Ibid.

175 See US Third Restatement, supra note 12, where states are under an obligation to ensure activities within their jurisdiction or control conform to generally accepted international rules and standards to prevent, reduce, and control environmental injury outside their areas of national jurisdiction.

176 See UN General Assembly (UNGA) Res. 1803(XVII) (14 December 1962); Declaration on the Establishment of New International Economic Order, UNGA Res. 3201 (1 May 1974); and Charter of Economic Rights and Duties of States, UNGA Res. 3281 (XXIX) (12 December 1974). The principle’s status as customary international law was confirmed by the ICJ in Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the. Congo v. Uganda), (2006) 45 I.L.M. 271.

177 See the discussion in the Tuna-Dolphin disputes by the GATT panels, where the blatant extra-jurisidictionality of the US measures was noted. The Shrimp-Turtle decision by the WTO Appellate Body revisited the general rule against using trade measures to apply domestic environmental regulations by permitting the use of a US trade prohibition against states that do not effectively prevent turtle by-catch in their shrimp-fishing haulings. However, this is arguably not a bold assertion of US domestic law since the species protected by the measure (sea turtles) is a global/transboundary resource and its conservation is covered under a number of MEAs.

178 Specific types of trasnboundary environmental harm running across national boundaries are only the tip of the iceberg in the area of state responsibility for transboundary harm. See J.R. Goldfarb, “Extraterritorial Compliance with NEPA amid the Current Wave of Environmental Harm (îggi) 18 Envtl. Affairs 543. More evidence is emerging that there are tangible effects of transoceanic pollution with respect to persistent organic pollutants and even mercury. See Renner, R., Asia Pumps Out More Mercury Than Previously Thought, Environmental Science and Technology, Science News, 5 January 2005.Google Scholar

179 A liability and redress regime is currently being negotiated under the Stockholm Convention on Persistent Organic Pollutants, (2001) 40 I.L.M. 532, although one pinnacle issue of disagreement among states is how to attribute liability to particular states, and even activities within those states.

180 Marine Mammals Protection Act, 16 U.S.C. 1361-407, P.L. 92-522.

181 Fishermen’s Protective Act (Pelly Amendment), 22 U.S.C, at paras. 1971-79.

182 National Environmental Policy Act, Pub. L. 91-190, 42 U.S.C. 4321-47, 1 January 1970, as amended by Pub. L. 94-52, 3 July 1975, Pub. L. 94-83, 9 August 1975, and Pub. L. 97-258, para. 4(b), 13 September 1982.

183 See George, supra note 111 at 10275. To support the EPA’s interest in applying its regulations outside the territorial United States, George notes a report from the Environmental Law Institute supported from legal counsel in the EPA. See Environmental Law Institute, U.S. plus Mexico Transhcmndary Environmental Enforcement: Legal Strategies for Preventing the Use of the Border as a Shield against Liability (2002).

184 Hunter, Salzman, and Zaelke, supra note 171 at 1417.

185 This was a relatively new phenomenon for the period between 1993-9. No overflows had been recorded for the preceding 200 years.

186 Dakota Water Resources Act, H.R. 2918, s. 623 [DWRA].

187 Garrison Diversion Reformulation Act, 1986. The DWRA revives some of the original Garrison diversion project features and introduces new ones, which involve inter-basin diversions of water into Canada. By transferring significant federal oversight to the state of North Dakota in the DWRA, it also substantially weakens the US government’s ability to meet its commitments to Canada under the Boundary Waters Treaty as outlined in the 1986 act.

188 IJC, Canada, and the United States, Transboundary Implications of the Garrison Diversion Unit (1977) [Garrison report]. Under Article IX of the Boundary Waters Treaty, supra note 6, reports of the commission “are not be regarded as decisions of the question or matters so submitted either on the facts or the law, and shall in no way have the character of an arbitral award.” Reports pursuant to Article IX stand in contrast to “decisions” under Article X, which can address the facts and circumstances of particular questions and referred matters, and can include conclusions and recommendations.

189 Garrison report, supra note 188 at 97.

192 Ibid, at 102.

191 Recommendation No. 2.

192 Garrison Unit Reformulation Act, Pub. L. No. 99-194.

193 It was also submitted that it was not effective against other pathogens.

194 The state contends that in the absence of that federal interest, the state is relieved of any obligation under NEPA to carry out an environmental impact statement (EIS).

195 Other US states such as Minnesota and Missouri shared these concerns.

196 The diversion will also pump water from a part of the lake where there are higher concentrations of salts and other potential pollutants.

197 The Manitoba government claims the fishing industry brings in $ 150 million of revenue a year and employs 3,500 fishermen. Threats to the downstream (US) sport fishing industry, along with the associated economic infrastructure, due to the damage to the fish habitat in Canada, was a determining factor in a report completed by the IJC recommending against the proposed coal mine in Canada on a tributary to the nearby Flathead River. See Impacts of a Proposed Coal Mine in the Flathead River Basin (1988) [Flathead report]. The report, at 11, recommended that the mine proposal not receive regulatory approval unless and until the potential transboundary impacts had been determined with reasonable certainty and constituted an acceptable risk to both governments. Ultimately, the project never went forward. There are currently plans to auction off rights to drill for methane on nearly 100,000 acres near the Flathead and Elk rivers, which will produce large amounts of waste water. The Flathead basin is home to abundant wildlife, including the largest concentration of grizzly bears in southern Canada. Cabin Creek crosses into the United States and forms the western boundary of the joint Waterton Lakes/Glacier National Parks before emptying into Flathead Lake.

198 Article IV of the treaty requires that waters shall not be polluted on either side to the injury or health or property on the other side.

199 Lake Winnipeg is considered to be one of the largest freshwater lakes in the world.

200 See Government of Canada, Downstream Effects of the Devils Lake Outlet, <http://www.dfait-maeci.gc.ca/can-am/Washington/pdf/fact-biota.pdf>.

201 Another invasive species, Eurasian watermilfoil, is now found in thirty-seven states and three provinces.

202 See Krauss, C., “Water Everywhere: But Is It Good for the Fish,” New York Times (6 June 2004)Google Scholar. See also Byers, M., “The Devils Diversion,” Globe and Mail (31 January 2005).Google Scholar

203 According to the World Conservation Union, the global economic costs of damage from invasive alien species are estimated at US $137 billion per year.

204 The Convention on Biological Diversity, (1992), 31 I.L.M. 822, calls upon its parties to prevent the introduction, control, or eradication of alien species that threaten ecosystems, habitats, or species. Other MEAs such as the Cartagena Protocol, supra note 64; Convention on International Trade in Endangered Species of Wild Fauna and Flora, (1973) 993 U.N.T.S. 243; Convention on the Conservation of Migratory Species of Wild Animals, (1980), 19 I.L.M. 15; and the Convention on Wetlands of International Importance Especially as Waterfowl Habitat, (1971) 996 U.N.T.S. 245, have also addressed the issue.

205 2004 Ballast Water Management Convention, <http://globallast.imo.org/index.asp?page=mepc.htm&menu=true>.

206 International Plant Protection Convention, 6 December 1951, <http://www.fao.org/legal/treaties/004t-e.htm>. The Office International des International des Epizooties manages risks associated with animal diseases but does not include species that may be invasive alien species. See “Experts Identify Regulatory Gaps for Invasive Alien Species” (2005) 5(10) Bridges Trade Biores.

207 The WTO Agreement on Sanitary and Phytosanitary Measures, Article 3.2, states that WTO members would benefit from a presumption of consistency with the agreement when the measures conform to such standards, guidelines or recommendations. Members are also free to provide a higher level of protection under their measures although the burden of proof reverts to them to justify that the measure is consistent with the SPS Agreement. See Articles 3(3).

208 Clean Water Act, 33 U.S.C. § 1251-1387.

209 Clean Air Act 42 U.S.C. § 7622.

210 Natural Wildlife Federation, “Powell Gives Devils Lake Project Green Light,” 2003, <http://www.nwf.org/enviroaction/index.cfm?articleid=28i&issueid=3i>.

211 Government of the Province of Manitoba v. Gale, A. Norton, Secretary, United States Department of the Interior, el al, Civil Action No. 02-CV-02057 (RMC) (3 February 2005).

212 The court determined that the finding was arbitrary, capricious, and an abuse of discretion.

213 There was no evaluation of the consequences of the failure compared to the complete treatment at source for a plant on the Missouri basin side.

214 See ibid, at 38.

215 Some alternatives to an actual reference of the matter to the IJC were also suggested including having the IJC oversee the implementation of any agreement that the United States and Canada agree to or overseeing the installation of any environmental protection such as sand filters. Samyn, P., “Devils Lake Dispute: Canada Appears to Give Up Hope for IJC Review: Washington Talks Look for New Solution,” Winnipeg Free Press (zijune 2005).Google Scholar

216 The agreement stipulates that North Dakota would install a temporary crude rock-and-gravel filter at the start of the outlet’s new drainage system. Some have criticized this initiative as limited since it would not prevent water from pouring over the top of the filter when it fills up. See Galloway, G., “Critics Call Devils Lake Deal ‘A Joke’: Invasive Species Still a Threat, Activists Warn,” Globe and Mail (8 August 2005)Google Scholar. The temporary gravel filter has been proven to be ineffective as parts of it washed away when the outlet was tested under a full flow of water.

217 More accurately, the understanding between all the parties was never transformed into a legal document. See Robson, M., “Pact to Safeguard Manitoba’s Water Was Never Signed,” Toronto Star (20 April 2006).Google Scholar

218 See Ibbitson, J., “Canada Must Swallow Its Devils Lake Mistakes,” Globe and Mail ( 11 August 2005).Google Scholar

219 The current US plan developed by the presidential administration would open part of the refuge to oil drilling. The area is claimed to hold between 10 to t6 million barrels of crude oil and would satisfy future energy needs of the United States. The plan would open 1.5 million acres on Alaska’s north coast for exploration, although only 2,000 acres could be under development at any given time.

220 National Interests Lands Conservation Act, 16 U.S.C. § 410.

221 Agreement on the Conservation of the Porcupine Caribou Herd, <http://www.taiga.net/pcmb/documents/international_conservation_agreement.pdf>.

222 Ibid., Article 3(a).

223 Ibid., Articles 3(c) and (d).

224 Some critics have noted the marginal relevance that the ruling has in resolving transboundary environmental disputes. See Sand, P. H., Transnational Environmental Laxo: Lessons in Global Change (Dordrecht: Kluwer Law International, 1999) at 87 Google Scholar; and Birnie, P. W. and Boyle, A. E., International Law and the Environment, 2nd edition (Oxford: Oxford University Press, 2003).Google Scholar

225 In the Gut Dam dispute between Canada and the United States, (1969) 8 I.L.M. 118, Canada agreed to compensate US citizens for damage caused to their property because of a rise in the level of a lake in US territory partly attributable to a dam constructed by Canada across the St. Lawrence River. The dam was built with the consent of the United States but in accordance with a treaty that required compensation for losses attributable to the dam. (Canada was required to pay compensation irrespective of any questions of fault or negligence.

226 See Parrish, A. L., “Trail Smelter Déjà vu: Extraterritoriality, International Environmental Law, and the Search for Solutions to Canadian-U.S. Transboundary Water Pollution Disputes” (2005) Boston U. L. Rev. 85.Google Scholar

227 The IJC has issued a final report: Transboundary Impacts of the Missisquoi Bay Causeway and the Missisquoi Bay Bridge Project, 31 March 2005. The report concluded that the current state of water quality in the bay from phosphorous levels “presents an unacceptable situation that is adversely affecting health and property in both countries and constitutes a threat to the health of Lake Champlain.” It was recommended that the causeway be removed.

228 Boundary Water Treaty, supra note 6, Article VI.

229 April 2006.

230 International Joint Commission, Order in the Matter of the Measurement and Apportionment of the Waters of the St. Mary and Milk Rivers and Their Tributaries in the State of Montana and the Provinces of Alberta and Saskatchewan, October 1921.

231 See Wilkinson, T., “US Clashes with (Canada over Pollution at the Border,” Christian Science Monitor (6 August 2004),Google Scholar

232 Bayview Irrigation District and Others v. United Mexican States, 1 July 2005, ICSID Case no. ARB(AF) /05/1 ).

233 North American Free Trade Agreement, (1993) 32 I.L.M. 289 [NAFTA].

234 North American Agreement on Environmental Cooperation, (1993) 32 I.L.M. 1480 [NAAEC]. Article 5 of the NAAEC establishes an obligation on all state parties to “effectively enforce its environmental laws.”

235 Boundary Waters Treaty, supra note 6, Article X. The brief also cites an obligation on either party to make a unilateral reference to the IJC under Article IX. Submission to the Commission for Environmental Cooperation, 24 March 2006, <http://www.sierralegal.org/reports/devilslake_cec_submission_maro6.pdf>.

236 See Brunnée, J., American Society of International Law 100th Anniversary Conference Proceedings (2006).Google Scholar

237 In the Flathead report, supra note 197 at 9, the source of the environmental pollution to US fisheries was not attributed to its exposure to the polluting itself but to the initial damage to the fish habitat inside Canadian territory.

238 International Boundary Waters Treaty Act, R.S., c I-20, s. 1.

239 Such claims are limited to claims of interference with the transboundary river rather than pollution pursuant to Article II of the treaty.

240 See UA, supra note 162.

241 See Pulp Mills, supra note 76.

243 Pakootas v. Teck Cominco Metals, Ltd., No. 05-35153, D.C. No. CV-04-00256-AAM, (U.S. Court of Appeals-Ninth Circuit).

244 This was distinguished from the discharge of the waste from the smelter into the Columbia River in Canada and the discharge or escape of the slag from Canada when the Columbia River enters the United States.

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