W&L Law’s Miller Examines China’s Legal Responsibility for Global Pandemic How will the international law principles established in the Trail Smelter Arbitration of the 1920s inform liability for the spread of COVID-19.

By Peter Jetton
April 13, 2020

In a new essay published at JustSecurity.org, Washington and Lee law professor Russell Miller, along with international finance lawyer William Starshak, examines how the principles of transboundary harm will come into play if China is held liable for the COVID-19 outbreak.

As a backdrop to the current crisis, the authors discuss a famous incident from the 1920s, when toxic fumes from a zinc smelter in Trail, British Columbia caused extensive damage to crops and timber across the border in the Pacific Northwest.

Today, law students around the world study the Trail Smelter Arbitration as a foundational case in contemporary international law. In its judgments, the arbitration panel announced two ground-breaking legal principles regarding transboundary harm. First, that no country has the right to use or permit the use of its territory to cause injury to the territory of another or the properties or persons therein. Second, that a polluting state must pay for the damage caused from relevant polluting activities on its own territory. Ultimately, Canada was ordered to pay reparations to the United States.

The essay then goes on to consider how the international law principles established in the Trail Smelter case suggest China’s legal responsibility for the harm associated with this pandemic, beginning with the proposition that China must accept responsibility, as did Canada.

Not only did acceptance of responsibility help maintain peaceable relations with its neighbor, but it also served Canada’s direct economic interests. After all, Canada was determined to mitigate the smelter’s harm in order to keep it operational as an important economic contributor to Canada and the British Empire. Will China reach the same conclusion?

In addition to the essay, Miller also contributed to a report on this looming dispute for Voice of America.

“If Canada had good environmental laws in place, the smelter wouldn’t be polluting and wouldn’t have done harm in the U.S. It looks related here. If China just maintained an adequate food safety regulatory regime, the harm wouldn’t have been spread,” Miller said.

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