Trial smelter arbitration between canada and the united states

INTRODUCTIONInternational environmental law has been developing gradually throughout the century; there has been a considerable acceleration in that process since 1970s. Two factors have been responsible for these developments.

The first has been an increase in major environmental incidents which have had trans-boundary impacts. The second factor has been the increased attention given to environmental problems in major international forum. The development of international environmental law has been characterized by a number of important decisions and rulings by courts, commissions and tribunal during formative stages of its development. The most influential of these early decisions was the trial smelter Arbitration between Canada and the United States.

It was held that no nation state had the right to use or permit the use of its territory such that emissions cause injury in or to the territory of another state or to properties or persons therein.The Trial Smelter Arbitration concerned action brought by the United States for air pollution caused by a Canadian smelter in British Columbia. It was allege that emissions from the smelter were drifting across the boarder so as to cause harm to land and people in the States of Washington. However a decision was reached by relying on general principles of international law, as well as domestic principles of United States law as applied with respect to the rights of states in the American federation.

Canada was therefore held responsible for the past and future conduct of the Trial Smelter, irrespective of whether or not it was a state owned enterprise. The tribunal also emphasized the importance of the states jointly working together to eliminate trans-frontier environmental problems.The Trial Smelter decision substantially advanced principles of state responsibility in regard to trans-frontier pollution but uncertainly existed as to how far these principles could extend. The principle of state responsibility for injurious acts caused to another state was further developed in the Corfu Channel Case.

In that decision, the international court of justice had to determine whether Albania was responsible for damage caused to British warships by mines in the Corfu Channel, despite not being actually aware of the mines’ existence (Anderson, 1997: 3-4).The sovereign right of the state is not absolute because the judgment did not suggest what the rights of states might be in cases of environmental damage, it did confirm the principle of the state responsibility for injurious act which occur within territory under state control. As a result of this decision, the potential now existed for the principle of Trail Smelter to be extended beyond air pollution to a wide variety of injurious acts.Some provisions in the Stockholm Declaration were important for the development of international law.

Principle 21 provided:States have, in accordance to the Charter of the united nations and the principle of international law, the sovereign right to exploit their own resources pursuit to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction.The significance of this statement is that states had for the first time agreed that there was a universal notion of state responsibility for any environmental damage or harm not only to other states but also for areas beyond the limits of national jurisdiction. Though not yet accepted in treaty form, the Stockholm declaration became a basis for the development of customary international law on this question of state responsibility (Rothwell, 1996: 353-355).Principle 22 of the Stockholm Declaration provides that states are to “…cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such states to areas beyond their jurisdiction.

” Twenty years later, Principle 13 of the Rio Declaration called on states to develop national law regarding liability and compensation for victims of pollution and other environmental damage, and that“State shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage cause by activities within their jurisdiction or control to areas beyond their jurisdiction.”Liability can be seen as a mechanism for implementing the “Polluter Pays Principle” (“PPP”). That principle, originally adopted by the Organization for Economic Corporation and Development (“OECD”) in 1972, contemplates the internalization of pollution-control costs. The principle was reaffirmed at the United Nations conference on environment and development (“UNCED” OR Earth Summit, 1992) in principle 16 of Rio Declaration.

“National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments,  taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.”The “polluter say principle” has evolved to embrace liability as well as cost internalization. In either context, the Principle expresses a policy that the polluter should prevent or pay for environmental harm.While environmental legislation lay down norms and procedures aimed at preserving the environment, liability is a necessary complement to ensure that persons responsible for non compliance resulting in environmental damage face the prospect of having to pay for restoration of the affected environment or compensating for the damage caused.

Liability regimes for environmental harm, therefore, serve different purposes:As economic instruments that provide incentives to comply with environmental obligations and to avoid damages;As means of penalizing wrongful conduct; andThey deter environmentally harmful conduct and prevent environmental damage by encouraging the party responsible for activities that may have an adverse impact on the environment to exercise caution to avoid the harm (Kurukulasuriya & Robinson, 2006: 51-55).In 1949, the International Court of Justice in the Corfu Channel case confirmed the principle of state responsibility for acts contrary to international law that occur within the territory of a state and result in injury to another party. Along those lines, the Arbitration Tribunal in the 1957 Lake Lanoux case concluded that “..

.according to the rules of good faith, the upstream State is under the obligation to take into consideration the various interests involved, to seek to give them every satisfaction compatible with the pursuit of its own interests, and to show that in this regard it is genuinely concerned to reconcile the interests of the other riparian State with its own.  As such, it is widely believed that the principle of absolute territorial sovereignty does not form part of the law of international watercourses.The second principle pertains to absolute territorial integrity.

It establishes the right of a riparian state to demand continuation of the natural flow of an international river into its territory from the upper riparian, but imposes a duty on such state not to restrict such natural flow of water to other lower riparian. At most, this principle tolerates only minimal uses by an upstream state, and in that respect it has similarities with the common law doctrine of riparian rights. In essence, this principle is the exact opposite of the principle of absolute territorial sovereignty as it is intended to favor downstream riparian, often by protecting existing uses or prior appropriations. The principle is supposed to protect lower riparian from any harm or injury that may be caused by the uses of the waters of the international river by the upper riparian.

The third principle combines the principles of limited territorial sovereignty and limited territorial integrity. It restricts both principles by asserting that every riparian state has a right to use the waters of the international river, but is under a corresponding duty to ensure that such use does not significantly harm other riparian. In essence, this principle establishes the right of every riparian state over the shared river. One of the earliest cases to which this principle can be traced is the Meuse river dispute between Holland and Belgium.

In a letter issued by the Dutch Government in 1862, it was stated that: “the Meuse being a river common both to Holland and Belgium, it goes without saying that both parties are entitled to make the natural use of the stream, but at the same time, following general principles of law, each is bound to abstain from any action that may cause damage to the other. In other words they cannot be allowed to make themselves masters of the water by diverting it to serve their own needs, whether for the purpose of navigation or irrigation.”The fourth principle is the community of co-riparian states in the waters of an international river. According to this principle, the entire river basin is an economic unit, and the rights over the waters of the entire river are vested in the collective body of the riparian states or divided among them either by agreement or according to proportionality.

This principle tends to overlook the political boundaries in favor of the optimal and integrated development of the entire river basin. However, nationalism, absence of political will, lack of trust between and among the riparian states, and the varying degrees of development of the different basin states, are all factors that could undermine this idealistic principle.Codification of the principles of the international water law can be attributed mainly to the work of the Institute of International Law, the International Law Association, and most notably the International Law Commission. The work of these institutions is based largely on the principle of limited territorial sovereignty, and its counterpart, limited territorial integrity.

As such, the rules and resolutions adopted by these institutions reflect those principles (Salman & Uprety, 2002: 13-16).The Stockholm Conference and the resulting Stockholm Declaration proved to be a catalyst for the development of a range of global initiatives to protect and preserve the environment. Some of these initiatives were based on international law, others sought to enhance international co-operation. In the post-Stockholm era a large number of international fora considered questions of environmental protection.

These meetings and discussion resulted in the development of new conventions and protocols for environmental protection, and a number of important diplomatic and other intergovernmental and international responses. These developments provided a basis upon which international law dealing with the protection of the environment could expand.Many of these initiatives tended to deal with specific sectoral issues. New conventions were adopted to regulate;pollution of the sea by ships;trade in endangered species;military environmental modification during times of armed conflict; andthe conservation of migratory species of wild animals.

During the 1970s, little effort was made to implement a comprehensive approach to global environmental protection. This is to be contrasted with negotiation and conclusion during this same period of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).Much of responsibility for negotiation and development of international law initiatives for the protection of the environment during the post-Stockholm era fell upon the United Nations and its agencies. Despite the lack of emphasis in the United Nations Charter on protection of the environment, the United Nations did attempt to keep environmental issues at the forefront of its agenda.

The United Nation Environmental Program (UNEP) was established in response to growing global environmental concerns. Its principle mandate was to assist in coordinating international responses to global environmental problems and provide assistance to developing states grappling with these environmental problems. Other united nation agencies also began to develop specific environmental programmes. The united nation also sought to encourage more comprehensive global development of these initiatives (Boer, Ramsay & Rothwell, 1998:7).

It is important to remember that the rule in the Trial Smelter decision does not forbid all interference with the territory of other states. On the contrary, the application of the ruling is limited to cases of “serious consequences”. The responsibility of the polluting state also depends on the fact that “the injury is established by clear and convincing evidence”. The requirements of “submissive injury” reflect a balance between the doctrine of absolute territorial sovereignty and absolute territorial integrity.

The former allows a state to deal with its territorial with its territory as it pleases; the latter forbids a state to interfere with another state’s territorial integrity. Unfortunately, however, the Trial Smelter decision offers little guidance in answering several important questions: to what extent does the duty to show consideration for the interests of the neighboring state limit the principle of territorial sovereignty and, vice versa, to what degree is the principle of territorial integrity limited by the duty to tolerate adverse secondary effects resulting from activities in a neighboring state?A majority of international law scholars agree that interference with the territorial of other state constitute an internationally wrongful act only when such interferences produce substantial injury. For example, Oppenheim says that “a state is bound to prevent such use of its territory as, having regard to the circumstances, is unduly injurious to the inhabitants of the neighboring state”. The International Law Association has applied this rule to the prevention of freshwater pollution (Article X of the Helsinki Rules 1966), to the prevention of marine pollution on continental origin (Article III of the Draft Rules on Sea Pollution 1968), and to the prevention of transfrontier pollution (Article 3(1) of the Rules of International Law Applicable to Transfrontier Pollution).

The applicability of this rudimentary rule on environmental protection has been restated in several major “soft law” instruments, such as the Declaration of the United Nations Conference on Human Environment (1972 Stockholm), various resolutions of the General Assembly, and declarations of other intergovernmental organizations (Meng, 1987: 66-68). The fundamental principle is reflected in all conventions which contain provisions on transfrontier pollution. For example, Article 194(a) of the 1982 Law of the Sea Convention imposes on the Contracting Parties the obligation to “take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other states  and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with these convention”. CONCLUSIONClearly, there is sufficient evidence to establish the existence of a rule that prohibit injurious use of territory “in such a manner as to cause harm to the territory of another state” under general international law.

While this rule may be expressed differently in light of the actual situation at hand, it nevertheless is applicable to all types of transfrontier pollution, regardless of whether the pollution occurs in freshwater, in the air, or in the marine environment. The rule is applicable in the LBMP when such pollution produces adverse transfrontier effects. If we compare the Trial Smelter decision with article 194 of the Law of the Sea Convention, we find that the condition of “serious substantive injury” in the former has become “damage” in the latter.   ReferencesAnderson, W.

(1997). The law of Caribbean marine pollution. London:  Kluwer Law International.Boer, B, Ramsay, R.

, & Rothwell, D. (1998). International environmental law in the Asia Pacific. London: Kluwer Law International.

Kurukulasuriya, L. & Robinson, N. A. (2006).

Training manual on international environmental law. Stevenage Hertfordshire:  UNEP/Earthprint.Meng, Q. (1987).

Land-based marine pollution: international law development. London: Martinus Nijhoff Publishers.Rothwell, D. (1996).

The Polar Regions and the development of international law. New York: Cambridge University Press.Salman, S. M.

A. & Uprety, K. (2002). Conflict and cooperation on South Asia’s international rivers: a legal perspective, Volume 2002, Part 1.

London: World Bank Publications.;;;;;;;;;;;;

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