Pandemic as Transboundary Harm: Lessons from the Trail Smelter Arbitration

Authors

Russell A. Miller, Washington and Lee University School of LawFollow

Document Type

Article

Publication Title

New York University Journal of International Law & Politics

Publication Date

2023

Abstract

The COVID-19 pandemic has caused incalculable harm around the world. The fact that this immense harm can be traced back to a localized outbreak in or near Wuhan, China, raises questions about the responsibility China might bear for the pandemic under public international law. Famously applied in the seminal Trail Smelter Arbitration (1938/1941), the Transboundary Harm Principle provides that no state can use or allow the use of its territory in a manner that causes significant harm in the territory of other states. This article does not intend to tap into the unseemly, xenophobic spirit that animates much of the rhetoric blaming China for the pandemic. Yet, if regulatory failure in China caused the pandemic, then those acts or omissions might qualify as a violation of the customary international law Transboundary Harm Principle. This Principle, which seeks to preserve states’ fundamental right to sovereignty while accommodating a spectrum of interstate or transboundary interaction, has become a foundational component of international environmental law. But at its core, the Transboundary Harm Principle establishes the risk of international law responsibility for harm caused by domestic regulatory failure. This article demonstrates the Principle’s application beyond environmental law and further applies it to the COVID-19 pandemic. The Trail Smelter Arbitration both articulated the relevant substantive law and also provided a model for fashioning an equitable remedy for violations of the Principle. That remedy accounts for harmed states’ contribution to the severity of the harm suffered. This framework—consisting of the Trail Smelter Arbitration’s substantive law and remedial procedure—confirms that the Transboundary Harm Principle is an appropriate international law solution to the question of China’s responsibility for the harm caused by COVID-19.

Recommended Citation

Russell A. Miller, Pandemic as Transboundary Harm: Lessons from the Trail Smelter Arbitration, 55 N.Y.U. J. Int'l L. & Pol. 259 (2023).