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.

The World Summit on Sustainable Development took place in Johannesburg from 26 August to 4 September 2002. Its intended purpose was to hold a ten-year review of the 1992 UN Conference on Environment and Development (Rio Summit) in order to rein-vigorate the global commitment to sustainable development.1 Perhaps attempting to duplicate the products of other international meetings, national governments agreed to negotiate and adopt two documents: the Johannesburg Declaration2 and the Plan of Implementation3 However, differences emerged over the binding nature of the instruments and if so, the strength of the obligations therein. It appeared that this tension spilled over to all the negotiations. Some countries pushed for concrete timetables, reiterating other goals stipulated in previous international declarations or decisions, while other countries, weary of taking on new commitments that are unlikely to be met, preferred a more soft-law declaratory approach.

Unlike the original 1947 General Agreement on Tariffs and trade (GATT), the 1994 Agreement establishing the World Trade Organization (WTO Agreement)1 covers a much wider range of trade. It extends beyond goods and now embraces services, intellectual property, procurement, investment and agriculture. Moreover, the new trade regime is no longer a collection of ad hoc agreements, Panel reports and understandings of the parties. All trade obligations are subsumed under the umbrella of the WTO, of which all parties are members. Member States have to accept the obligations contained in all the WTO covered agreements: they cannot pick and choose.