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

Abstract

SummaryThe 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.