Transboundary Harm in International Law

Rebecca M. Bratspies holds a B.A. in Biology from Wesleyan University and graduated with honors from the University of Pennsylvania Law School where she was elected to the Order of the Coif and awarded the Green Prize for Excellence in Torts. She served as a law clerk for the Hon. Judge C. Arlen Beam on the United States Eighth Circuit Court of Appeals. She was named a 1994/95 Henry Luce Foundation Scholar, and spent a year in Taiwan working with the Ministries of Justice and Environment. Her scholarly research focuses on environmental regulatory regimes and she is particularly interested in the international dimensions of environmental regulation, and the role of non-state actors. Professor Bratspies has lectured and published widely on such topics as genetically modified organisms, environmental liability, and international fisheries. She currently holds an associate professorship of law at CUNY School of Law where she teaches environmental law, property and administrative law. While on the faculty at the University of Idaho College of Law, she co-founded, with Professor Russell Miller, the Annual Idaho International Law Symposium. The inaugural symposium gave rise to the present project. Raised in America's Inland Northwest near the Columbia River (where the events on which the book is set took place), Russell Miller has degrees from Washington State University (B.A.); Duke University (J.D./M.A.); and Johann Wolfgang Goethe University - Frankfurt, Germany (LL.M.). He was the recipient of a 1999 Robert Bosch Foundation Fellowship, during which he interned at the German Federal Constitutional Court and European Court of Human Rights. He is a frequent Visiting Scholar at the Max Planck Institute for Comparative Public Law and Public International Law, Heidelberg, Germany. Professor Miller is the co-founder and co-editor-in-chief of the German Law Journal (www.germanlawjournal.com). He is also the co-editor of the Annual of German & European Law (Berhahn Books) and the co-author of the forthcoming third edition of The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press). He has authored articles in the field of constitutional law, comparative constitutional law and public international law.

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• Introduction; Part I. The Trail Smelter Arbitration - History, Legacy and Revival: A. History: 1. An outcrop of Hell: history, environment, and the politics of the Trail Smelter Dispute James R. Allum; 2. The Trail Smelter Dispute John E. Read; B. Roots and legacy: 3. Of paradoxes, precedents and progeny: the Trail Smelter Arbitration 65 years later Stephen C. McCaffrey; 4. Pollution by analogy: the Trail Smelter Arbitration Alfred P. Rubin; 5. Has international law outgrown Trail Smelter? Jaye Ellis; 6. The flawed Trail Smelter procedure: the wrong tribunal, the wrong parties, and the wrong law John H. Knox; 7. Re-reading Trail Smelter Karin Mickelson; 8. Trail Smelter and the International Law Commission's work on state responsibility for internationally wrongful acts and state liability Mark A. Drumbl; 9. Derivative Versus Direct Liability as a basis for state liability for transboundary harms Mark Anderson; C. Return to Trail: 10. Transboundary pollution, unilateralism and the limits of extraterritorial jurisdiction: the second Trail Smelter Dispute Neil Craik; Part II. Trail Smelter and Contemporary Transboundary Harm - The Environment: 11. Trail Smelter in contemporary international environment law: its relevance in the nuclear energy context Günther Handl; 12. Through the looking glass: sustainable development and other emerging concepts of international environmental law in the Gabcikovo-Nagymaros case and the Trail Smelter arbitration James F. Jacobson; 13. Trail Smelter's (semi) precautionary legacy Rebecca M. Bratspies; 14. Surprising parallels between Trail Smelter and the global climate change regime Russell A. Miller; 15. Sovereignty's continuing importance: traces of Trail Smelter in the international law governing hazardous waste transport Austen L. Parrish; 16. The legacy of Trail Smelter in the field of transboundary air pollution Phoebe Okowa; 17. The impact of the Trail Smelter Arbitration on the law of the sea Stuart M. Kaye; Part III. Trail Smelter and Contemporary Transboundary Harm - Beyond the Environment: 18. Trail Smelter and terrorism: international mechanisms to combat transboundary harm Pierre-Marie Dupuy and Cristin Hob; 19. The conundrum of corporate social responsibility: reflections on the changing nature of firms and states Peer Zumbansen; 20. A pyrrhic victory: applying the Trail Smelter principle to State creation of refugees Jennifer Peavey Joanis; 21. Transboundary harm: internet torts Holger P. Hestermeyer; 22. International drug pollution? Reflections on Trail Smelter and Latin American drug trafficking Judith Wise and Eric L. Jensen; 23. Application of international human rights conventions to transboundary state acts Nicola Vennemann; Annex: convention for settlement of difficulties arising from operation of Smelter at Trail, British Columbia, Trail Smelter Arbitral Decision 1938, and Trail Smelter Arbitral Decision 1941.