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00335.5 DRAFT-Not for distribution consent of a neighbor nation before trans boundary movement of known dangerous materials. The trans boundary harm rule was judicially recognized in the Trail Smelter Arbitration,136 which involved the 1909 Boundary Waters Treaty. 137 After establishing damages caused by pollution from Canada on agricultural lands and forests owned by U.S. citizens, the United States initiated negotiations with Canada, pursuant to the Boundary Waters Treaty under the auspices of the U.S.-Canada International Joint Commission. The Joint Commission held that "No State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another." The rule, in its application to flood water, is incorporated in the 1944 Mexican Water Treaty,138 and was later recognized in Article X ofthe 1966 "Helsinki Rules,,,139 the Stockholm Declaration on the Human Environment,140 the Geneva Convention on Long- Range Transboundary Air Pollution,141 the Geneva Convention on Environmental Impact Assessment in a Transboundary Context, 142 the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal,143 the Rio Declaration on Environment and Development,144 the Helsinki Convention on Protection and Use of Transboundary Watercourses and International Lakes,145 and the United Nations Convention on the Law of Non-navigational Uses of International Watercourses. 146 The transboundary harm rule is also incorporated in the Council on Environmental Quality's Guidance on NEPA Analyses for Transboundary Impactsl47 and Article 2 (3) of the North American Agreement on E . I C . 148 nVlronmenta ooperatlOn. It could be argued under the rubric of the transboundary harm rule that the failure to deliver ColoraeJo River water, which one nation has otherwise requested, but is not entitled by treaty to receive, causes environmental harm, rather than economic harm, in the down-river nation. The kind of harm contemplated by the transboundary harm rule, however, is harm to persons and property from the actual transport of a "pollutant," rather than the failure to transport a natural resource. In short, the rule to date has not been stretched to encompass non- . '.c f' t I h 149 contammatIOn lorms 0 envIronmen a arm. f. Precautionary Principle The precautionary principle holds that, when there is a threat of serious or irreversible environmental harm, lack of full scientific certainty should not be the reason to postpone action. The principle originated in the 1960s German concept of "vorsor~eprinzip>" literally meaning foresight planning.15o It was adopted in the Bremen Declaration, I 1 and integrated in the Declaration of Ministers of subsequent North Sea Conferences,152 the European Union's Maastricht Treaty,153 the Helsinki Convention on Protection and Use of Transboundary Watercourses and International Lakes,154 and the Rio Declaration on Environment and Development.155 The precautionary princiEle has been adopted within Mexico's General Law of Wildlife (Ley General de Vida Silvestre). I 6 The precautionary principle has been variously described and enlarged as a much broader principle involving other U.S. and European environmental law principles by environmental commentatorsl57 and groups. 158 The precautionary principle thus is a standard in the process of definition and acceptance.159 Like the sustainability principle, success of the precautionary principle is difficult to measure, except in terms of estimates as to outcomes prevented. Perhaps even less than in the case of the sustainability principle, there is no general consensus as to the precautionary principle's scope, definition or application. 14