Cross-Border Pollution and International Law

As my guest stint here at PrawfsBlawg draws to a close, I wanted to say thanks to Dan for letting me join the conversation. I've read some interesting posts/comments this past four weeks, and I've enjoyed being part of it. As we turn to the weekend, I thought I would follow Rick's and Ethan's lead, and post links to two articles I've recently written.

The first article -- Litigating Canada-U.S. Transboundary Harm (Link to Article on SSRN) -- was co-written with Prof. Shi-Ling Hsu from the University of British Columbia Law Faculty. The article explores a possible cross-border extraterritorial lawsuit that Ontario may bring against U.S. polluters for healthcare costs the Province has incurred. Cross-border pollution is a big issue in Ontario, Canada (Paul, am I right?). This sort of lawsuit raises interesting issues both on the legal and political fronts. Our article is being published next month in the Virginia Journal of International Law (Link to VJIL). VJIL has an arrangement with Opinio Juris - the international law blog - and I'll be blogging about the article over there sometime in October. I hope you'll join in the conversation.

The second article -- Reclaiming International Law from Extraterritoriality (Link to Article on SSRN) -- explores recent trends in international law and in international legal theory. In particular, the articles explores the dangers of using national/domestic courts to adjudicate international disputes. I just uploaded a preliminary draft to SSRN. Comments/feedback would be welcome. An abstract of the piece is included below after the continuation.

I may a do a final post on Monday. But if not, thanks and signing off...

Reclaiming International Law From Extraterritoriality Abstract:

A fierce debate ensues among leading international law theorists that implicates the role of national courts in solving global challenges. On the one side are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a threat to democratic sovereignty. On the other side are scholars who support international law as a key means of promoting human and environmental rights, as well as global peace and stability. These scholars are the “new” Internationalists because they see non-traditional, non-state actors as appropriately enforcing international law at the sub-state level. The debate has had an impact. In recent years, the U.S. has disengaged from traditional sources of international law, and in particular, multilateral treaties. In its place, the U.S. and non-state actors use domestic laws, ap-plied extraterritorially, to exert international influence. Following the U.S. lead, other countries now increasingly apply their domestic laws extraterritorially too.

This Article addresses a topic that leading theorists have given scant attention – the rise of global extraterritoriality. It argues that the two prevailing dominant perspectives in international legal theory have miscalculated the dangers that extraterritoriality poses. In so doing, the article advocates for an approach that acknowledges changes in the international system, but also seeks to shore-up territorial sovereignty to prevent the problems that extraterritoriality creates. It thus offers a way beyond the stalemate currently existing in international law scholarship. Controversially, it concludes that international law scholars – from both the Sovereigntist and new Internationalist perspective – should embrace and reclaim multilateral international lawmaking.