Note: How the Presumption Against Extraterritoriality Has Created a Gap in Environmental Protection at the 49th Parallel

By João C. J. G. de Medeiros. Full text here.

Harmful pollutants are crossing the United States-Canada border as actors on either side of the boundary export environmental risk and harm through transboundary rivers. However, public international law has been unable to provide a remedy for the problem. Furthermore, efforts to address the problem in national courts have run afoul of the presumption against extraterritoriality. This rule is used to limit the application of environmental statutes to wholly territorial pollution cases.

This Note begins by explaining why the public international law system is ill-suited for addressing transboundary pollution along the United States-Canada border, and why it is appropriate for national courts to rule on these cases. It continues by examining the jurisdictional rules in both the United States and Canada that control the use of statutes in transboundary cases. In the United States, the presumption against extraterritoriality has developed exceptions that may allow for the application of environmental cases where either the conduct or the effects are located within the country. In Canada, recent developments in jurisdictional law allow courts to hear cases having a real and substantial connection to the forum.

This Note draws on insights provided by these two jurisdictional frameworks to propose a collaborative model for addressing transboundary cases. Under this model, the courts of each country have concurrent jurisdiction over transboundary cases, but work together to develop procedural rules that allocated jurisdiction over a case based on the court able to provide an adequate remedy.