W&L Law’s Miller Publishes Article in the NYU Journal of International Law and Politics Prof. Russ Miller published "Pandemic as Transboundary Harm: Lessons from the Trail Smelter Arbitration."

Law Communications
June 5, 2023

Washington and Lee law professor Russ Miller has published an article in the New York University Journal of International Law and Politics. The article, “Pandemic as Transboundary Harm: Lessons from the Trail Smelter Arbitration,” explores the COVID-19 outbreak and violations of the Transboundary Harm Principle, which establishes the risk of international law responsibility for harm caused by domestic regulatory failure.

“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,” writes Miller.

The article is available online at the NYU Journal of International Law and Politics website.

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