INTRODUCTION

The illicit Latin American drug trade causes almost incalculable harm in both the producing and consuming states, while generating huge economic rewards for the traffickers. Since the “War on Drugs” was declared twenty years ago, vast sums have been spent to eliminate the flow of illegal drugs into the United States, but these efforts have failed to reduce this international drug trade substantially. Would a reframing of the problem bring a more definite resolution? Perhaps other transboundary, or cross-border legal regimes could offer fruitful insight. Might principles derived from the Trail Smelter arbitration be useful as applied to Latin American drug trafficking? We conclude that neither the Trail Smelter “polluter pays” principle of state accountability for transboundary environmental harms nor the related state obligation to regulate against future continuing harm can be usefully extended to Latin American drug trafficking. The reasons for this conclusion illuminate challenges in applying the “polluter pays” principal in even its original international environmental law context.

LEGAL THEORY AND THE TRAIL SMELTER ARBITRATION

For purposes of this discussion, we presume the reader's familiarity with the basic events and holdings of the Trail Smelter arbitration. Before leaving the Trail Smelter arbitration for the drug trafficking world, certain key attributes of the Trail Smelter arbitration fact pattern should be noted. The Trail smelter's domicile and ownership were parallel (i.e., the same state was both host and home to the smelter). Canada, as host and home of the polluter, possessed effective regulatory capacity.