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TRAIL SMELTER ARBITRATION (UNITED STATES V CANADA): TRANSBOUNDARY POLLUTION AND STATE RESPONSIBILITY BY – NAVYA SINHA
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TRAIL
SMELTER ARBITRATION (UNITED STATES V CANADA): TRANSBOUNDARY POLLUTION AND STATE
RESPONSIBILITY
AUTHORED BY – NAVYA SINHA
ABSTRACT
The Trail Smelter Arbitration is a
known case in International environmental law for creating a nexus between
transboundary pollution and principle of state responsibility. This dispute,
arising from the operation of a smelter factory in Trail, Canada and its impact
on the environment in the neighbouring states raised concern on cross-border pollution.
This paper explores the legal and environmental areas of the Trail Smelter
Arbitration and the impact on international environmental law. This cases also
highlighted the loopholes in traditional method in addressing the international
cases of transboundary pollution and the establishment of principles such as
the "no-harm rule" and the doctrine of equitable apportionment.
This paper also addresses the broader
application of the principles and rules established with the development of the
Trail smelter case and contemporary environmental issues like the Covid-19
pandemic to managing environmental disputes across borders, especially in an
era where global environmental issues require cooperative solutions. In
conclusion, the Trail Smelter Arbitration not only set a precedent for
addressing transboundary pollution and in forming the part of customary
international law but also advanced a greater understanding of state
responsibilities in the context of environmental harm.
Keywords:
Transboundary pollution, international environmental law, doctrine of equitable
apportionment.
STATEMENT OF PROBLEM
How to get to a settling position
between nations when one has right to pollute for the purpose of development, and
the other has its right not to be harmed by a foreign country’s development
projects.
Method and materials
The primary method used in this paper
is legal dogmatic and traditional legal method.
Mostly literature of prominent
scholars has used has been used by in some cases other opinions have also been
considered. Also, only official sites of international organizations have been
used to maintain authenticity of the sources.
1. Introduction
This case establishes fundamental
principles related to International environmental laws. The case is between
United States and Canada. There are two towns, Northport in Washington, and
Trail in Canada, they both sit along the same Columbia River.
The Trail smelter company was causing
injury to the flora and fauna, nearby farmlands in Washington state. The
industry was smelting zinc (Zn) and lead (Pb), this was in turn polluting the
environment as large amount of sulphur dioxide was releasing. Waste was passing
by same Columbia River. It was raising environmental concerns and causing
damage to the nearby farmer’s land; however, it gained active operational
status because of the need of economic development and political power.
This case is a deep
analysis of economic profits versus environmental protection. The two principles
arising from the Trail smelter case plays i.e., (1) the polluter pays and (2)
that the states have an obligation to prevent transboundary harm or transboundary
harm principle significant part in international environmental law.
1.1 Background
Back then in 1896, in
British Columbia, Trail smelter was opened. It was owned by the Canadian
Pacific Railroad corporation, which has its name in itself. Later in 1905, the industry
was incorporated as the Consolidated Mining and Smelting Company. It was not so
far from the Canadian American border, approximately 11 miles north. (Figure 1)
Figure 1 (https://www.google.com/maps)
At that
time, smoke did not affect environmental pollution; rather it was a sign of
employment for locals. A blessing in disguise. As said by Julio Barboza, “the
damages caused, even if economically significant, were small in proportion to
the value of the smelters production”. The town Trail was so proud as they
named the local Hockey team as “Smoked Eaters.” John D. Wirth once said that
the smell of smoke is “the smell of money and jobs”.
In 1896, another smelter was opened
(Breen Cooper Smelter) in Northport but it was no luck and prosperity like
Trail smelter. The factory failed miserably, and the town face the Great
depression, followed by drought. As opposed to this, Trail smelter was a great
success.
The first people to file the case
against the Trail smelter were the local farmers. The factory explored their
options and bought nearby land within five miles of the factory. Secondly it
purchased smoked easement with the local citizens to protect future litigation.
One of the suits was filed by a Canadian farmer and the Canadian Supreme Court
ordered to serve damages to the farmers but no other restriction was declared
against the factory.
1.2 Decision Analysis
This case has been marked landmark
for it being one of the cases where an international Tribunal or court has
served its decision on an instance so remote and localized. Neither the local
farmers nor the smelter company thought the matter would become of so much
importance. In fact, the factory was trying to suppress the matter as soon as
possible but the matter went to the international tribunal.
In this case the Tribunal was looking
for a balanced decision as the remedy must be served to the local farmers and
at the same time the smelter industry does not all shut down as to hamper the
economic development of Trail.
The decision was in favour of the
USA. The factory is responsible and accountable for its actions and the
tribunal declared 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 properties
or persons therein, when the case is of serious consequence”.
The Tribunal declared that Canada has
violated the sovereignty principle of international law. Also, to violate this
the amount of pollution and its consequence must be of serious nature as to
harm the environment and sovereignty of neighbour countries. However, the court
did not mark any definition for what actually will be conferred as “serious”,
and it depends on the circumstances.
Majorly, the court laid down two
principles. First, a state has a duty to prevent transboundary harm. Second,
that the country does so suffers to pay the damages i.e., polluter pays.
The tribunal relied upon the case of
the US Supreme Court Story Parchment Company v. Paterson Parchment Paper
Company (1931); it was concluded that relief must be provided to the people who
have suffered injury. Further, the relief must be provided in the form of
monetary compensation. Accordingly, farmers were paid and successfully the
principle of polluter pays was established.
The Tribunal intent was clear, it
wanted to conclude to a balanced decision and hence never wanted to completely
shut down the factory even for the time being the case is pending as it would
suffer heavy economic and development loss. Therefore, the second remedy in
respect to the factory was to change the way of operation as to reduce the
amount of harmful chemicals emitted during processing. This remedy turned out to cost the smelter
company around $20 million.
The Tribunal did not shut the factory
rather it established the principle that a company may pollute if it is paying
the price. It diminished the injury the pollution was causing but did not end
the pollution.
2. Cross border pollution and principles of State
responsibility and Customary International Law on Transboundary Pollution
State
responsibility in view of international law requires conventional or customary
rule which can ascertain the liability of the State in respect of damages/environmental
harm it causes.
There is no
general treaty so customary international law is the primary source. State’s acceptance
(opinio juris) [1]
is a significant factor other than international treaties, jurisprudence, and laws
to bring stable rules into effect.
After the
Tribunal’s landmark decision on environmental concerns in the Trail smelter
case[2],
apparently it seemed appropriate that decision was in favour of the USA and the
farmers were paid the damages however, it marked the Trail smelter’s
responsibility not its liability.
There was
not sufficient conventions and treaties as to impose the State’s liability,
there is a vital need of State practice and opinio juris too in this regard.
However, there is one convention i.e., “Convention on International Liability
for Damage Caused by Space Objects” that imposes liability on the State for
causing damage even for economic development purposes, but it is not
predominantly environmental orientated rather outer space.
Later in
2015 Paris Agreement and in 1979 Convention on Long-Range Transboundary Air
Pollution it came out that the State will be liable only in cases where it is
responsible at global level for pollution.
The second
principle which was evolved in the Trail smelter case was polluter pays but
this is not whole in itself as it only highlights the liability of the operator
not the State. Liability of the operator and the State are two different
things. Only State’s responsibility is proportionate to transboundary
environmental damages.
Therefore,
it can be concluded that currently there is no customary international law
which can provide laws for ascertaining liability of the State in relation to
international environmental damages it causes as there is no specific state
practice or opinio juris which can be followed.
2.1 Contemporary transboundary harm principle
2.1.1 Treaty and International Law Commission (ILC) Codification
Transboundary
harm principle was evolved in the Trail smelter case and later, in the absence of
any specific law, has been come across as a general rule and followed as
customary international law binding among all the States.
Some other
principles that were emerged in the Trail smelter case was codified as Treaties
for e.g., the Stockholm Declaration on the Human Environment (1972), to develop
“the draft Principles on the Allocation of Loss in the Case of Transboundary
Harm Arising out of Hazardous Activities.”
According
to the Report of the International Law Commission on the work of its
fifty-third session , prevention
is necessary in cases where there is a threat to transboundary harm due to
certain activities of one state. It is important to understand the meaning of prevention
in this situation. It is obligation of state to consider this transboundary
harm principle before they might actually start the projects. Compensatory
remedy in these cases might not actually bring back the environment as it was
before the actions that took place so its prevention is necessary. The policy
of prevention is better than cure in these cases also the link between cause
(activity) and harm needs to be evaluated before any activity.
In respect
of transboundary natural resources and harm to environment Article 10 states:
“States
shall, without prejudice to the principles laid down in articles 11 and 12,
prevent or abate any transboundary environmental interference or a significant
risk thereof which causes substantial harm—i.e. harm which is not minor or
insignificant.”[3]
2.1.2 Transboundary Harm Principle as the framework for resolving cases
involving border-transcending harm.
A. Pulp Mills on the River Uruguay (Argentina v. Uruguay)
(2010)[4]
In this
case, Argentina and Uruguay has a common river as their border and they have 1975
Statute of the River Uruguay for the prevention of water pollution and other
activities. Uruguay planned to build pulp mills along the river but according
to Argentina it would substantially violate the 1975 Statue. It was argued that
it would create transboundary pollution.
The court
tried to find similar options as in the case of Trail smelter and concluded
that the regulation of transboundary harm principle on the river by stating
that “optimum and rational utilization” of the river and proportionate need of “protection
of the environment and joint management of this shared resource.”
Further the
court pointed out that the two states according to their Statute should
coordinate their industrial activities and plan their economic development
measures by coordination to prevent transboundary environmental harm.
Further the
court stated that according to Art. 41 of the Statute the two states must align
their domestic regulatory work as to with the aim to prevent transboundary
environmental harm.
The Court
pointed out that Uruguay has satisfied the obligation of Environment Impact
Assessment (EIA) by reference to “State practice and the International Law
Commission 2001 draft Articles on Prevention of Transboundary Harm from
Hazardous Activities.”
B. Nuclear Tests Case (Australia & New Zealand v. France)
(1974)[5]
The court
ordered injunction to suspend nuclear weapons tests in the South Pacific while
the case was still pending to France. Australia argued that any radio-active
material crossing its territory done by France’s nuclear test would be covered
under the aspect of transboundary harm principle.
This is of
serious consequence and should be applied strictly as compared to equitable
rule applied in the Trail Smelter case, this is codified in the Draft Articles
on Prevention of Transboundary Harm from Hazardous Activities.
Australia
claimed its territorial sovereignty under the provisions of general
international law to protects its citizens from the harmful effects of
activities conducted by neighbouring countries. The quantum of harmful effects
is much more serious as compared to Trail smelter.
The court
observed that there is a possibility of hamper to the legal interest of
Australia and therefore it is important to safeguard the same.
Transboundary Harm Principle and
other environmental norms do not put a “total restraint during military conflict” as conclude by the court. The court
further stated that the states have domestic regime of self-defence as the
states should consider the factor of proportionality and necessity before
conduction nuclear tests for transboundary environmental harm.
C. Namibia Case (Namibia v South Africa) 1971[6]
There are certain cases where the
state does not hold any “control” of jurisdiction as recognized in
international law on some activities or events. The state has de facto
jurisdiction but not de jure in cases like unlawful annexation. This can
be inferred by the advisory opinion in Namibia case. It was held that
South Africa has illegal maintenance of administration on Namibia was asked to
withdraw by the court.
The Court further held that:
“The fact that South Africa no
longer has any title to administer the Territory does not release it from its
obligations and responsibilities under international law towards other States
in respect of the exercise of its powers in relation to this Territory. Physical
control of a territory, and not sovereignty or legitimacy of title, is the
basis of State liability for acts affecting other States.”
2.1.3 The Transboundary harm principle and the Covid-19 pandemic
It is
difficult to talk about Transboundary Harm principle without thinking about
Covid-19. It is one of the greatest examples in history as it had outburst in
one country and impacted several countries miserably.
It has been
brought up by the scientist that the outburst was not natural. So, it can be
concluded that is activity in China precipitated the pandemic affecting the
whole world. [7]
It satisfied the first principle of ‘clear and convincing evidence’ standard
that it emerged from Wuhan, China.
One of the
theories is that the domestic source of meat came into contact with infected
wildlife and it started spreading through human beings after the consumption of
infected meat.[8]
Almost every theory shows that there is a sign of regulatory failure with respect
to food safety on the side of China.
Further it
would be covered under the definition of serious harm as the pandemic took
lives in numbers that cannot be counted. It costs serious injury economically
and financially. The transboundary harm principle applies to some
non-environmental injuries relevant in the context of Covid-19 pandemic.
Although, the COVID-19 outbreak was a mortal havoc and devastatingly disrupted
economic activity, it did not tangibly harm property or ecosystem.
Human lives
will also be covered under the principle as it was stated by the court in the pulp
mills case that injury to “people, property and the environment”, similarly in nuclear test case,
There was risk to the whole human population. The ICJ recognized that the
environment “is not an abstraction but represents the living space, the
quality of life and the very health of human beings.”
3. Erga Omnes and the Environment
Erga Omnes
is a Latin term which means “towards everyone”. This principle states an
obligation towards every other state in international law. The concept of erga
omnes was first introduced in the case of Barcelona Traction, where
the International Court of Justice observed that there should a line drawn
between obligations of state towards the international community and those
arising out of diplomatic protection. The former is concerned to all the states
and all the states have legal interest in their protection, so therefore they
are obligated erga omnes.
These
obligations are arising in international law from basic human rights which all
countries should be obligated to follow, e.g., protection from slavery and
racial discrimination. These rights possess quasi-universal nature.
The ILC
Draft on State Responsibility 2001 Art 48 also shows the obligation to follow
the doctrine of erga omnes:
“Any state
other than an injured State is entitled to invoke the responsibility of another
in accordance with paragraph 2 if:
(a) the
obligation breached is owed to a group of States including that State, and is
established for the protection of a collective interest of the group; or
(b) the
obligation breached is owed to the international community as a whole.”
The International
Criminal Tribunal for the Former Yugoslavia (ICTY) in its Furundzija judgement
stated that:
“Furthermore,
the prohibition of torture imposes on States obligations erga omnes, that is,
obligations owed towards all the other members of the international community,
each of which then is a correlative right. In addition, the violation of such
an obligation simultaneously constitutes a breach of the correlative rights of
all members of the international community and gives rise to a claim for
compliance accruing to each and every member, which then has the right to
insist on fulfilment of the obligation or in any case to call for the breach to
be discontinued.”
The
difference between bilateral agreement and erga omnes can be easily equated as
difference between domestic contract law and public law obligation.
Traditionally,
fundamental human rights were considered as the obligation erga omnes but in
contemporary world jurisprudence added protection of environment in the list
too.
3.1 The Principle of sustainable development
The basis
for this principle is that the states should use their resources for the
development as for future generation does not face problem of lack of
resources. Need of future generation should be considered while making
development projects.
The
Brundtland Report or the World Commission on Environment and Development in
1987 defined the sustainable development as: “development that meets the needs
of the present without compromising the ability of future generations to meet
their own needs”.
The Rio
Declaration Principle 3 concisely describes it as: “The right to development
must be fulfilled so as to equitably meet developmental and environmental needs
of present and future generations”
States
should find alternatives as to control global warming and other environmental
harm.
3.2 The Precautionary Principle
The basis
of this principle is scientific uncertainties. It has been originated from the
concept of “Vorsorgeprinzip” and the domestic German laws. Principle 15 of the
Rio Declaration, which provides the following:
“In order
to protect the environment, the precautionary approach shall be widely applied
by states according to their capabilities. Where there are threats of serious
or irreversible damage, lack of full scientific certainty shall not be used as
a reason for postponing cost-effective measures to prevent environmental
degradation.”
This principle can also be established in Article
206 of the 1982 UNCLOS which provides that:
“When
states have reasonable grounds for believing that planned activities under
their jurisdiction or control may cause substantial pollution of or significant
and harmful changes to the marine environment, they shall, as far as
practicable, assess the potential effects of such activities on the marine
environment and shall communicate reports of the results of such assessments to
the IMO.”
3.3 The Principle of Co-operation
A general
obligation can be inferred from The Stockholm Declarations principle 24 which
states that “international measures concerning the protection and improvement
of the environment should be handled in a co-operative spirit”.
Further, according
to Principle 7 of the Rio Declaration:
“States
shall co-operate in a spirit of global partnership to conserve, protect and
restore the health and integrity of the Earth’s ecosystem”.
4. Conclusion
As a
general rule in international law states have sovereignty power and they can
use their resources and make development projects as they seem appropriate
unless they are against the principles of international law and does not harm
the sovereignty of another state. Territory invasion of state can also be
intangible when the pollution from development projects of one state invades
neighbouring states, what we commonly call as transboundary pollution. This
obligation has been supported by the principle 21 of the Stockholm Declaration,
Principle 2 of the Rio Declaration and in the preamble of United Nations
Framework Convention on Climate Change.
It is a
known fact these obligations are not binding in nature but with the evolving
nature of international law and decisions as of Trail smelter arbitration has
marked these obligations as part of the customary international law and hence
now binding in nature.
“One should
use his own property in such a manner as not to injure that of another” has
been rightly translated for legal maxim “Sic utere tuo, ut alienum non laedas”
which has no legal obligation but stand as a principle in international law.
According
to The ILC Draft Articles on State Responsibility it has been cleared that any
transboundary activity or environmental harm of a state will attract state
responsibility. Industries which is in the jurisdiction on ones’ state
territory if harming state of another territory will face consequences for the
same. It is be seen as a breach of international obligation. It harms the
environment terribly and states should be held responsible if limit is crossed
as to take actions at international level. It is irrelevant whether the
industries are private or public because state cannot be ignorant when the
amount of pollution is terribly high. Regulation of industries whether public
or private is always in the hands of the state.
In the
Trail smelter case, emission of greenhouse gases was causing farm loss to the
US farmers. Even though is impossible to articulate what amount of damaging
effect on the farm have done by the industry’s emitted gases. In this case the
amount of pollution was so high was to affect climate change hence the matter
was taken by the international tribunal and later came as a landmark judgement
with principles which are followed as customary international law.
Later in
time, many more cases, treaties, conventions and principles shaped the concept
of transboundary environmental harm principle, it is important to note that
responsibility of state in these cases should not only be restricted to damages
in monetary term but also as to control the pollution and protect the
environment.
REFERENCES
1.
M. L. Quinn, "Early Smelter Sites: A Neglected
Chapter in the History and Geography of Acid Rain in the United States,"
Atmospheric Environment23, no. 6 (1989): 1281-92.
2.
D. H. Dinwoodie, "The Politics of International
Pollution Control: The Trail Smelter Case," International Journal27, no. 2
(Spring 1972): 218-35.
3.
Mark Cioc, University of California at Santa Cruz,
in an unpublished paper entitled "The Trail Smelter Dispute: International
Arbitration and Trans-Boundary Air Pollution in the Columbia Basin,
1927-1941."
4.
William K Stevens, "The Forest That Stopped
Growing: Trail is Traced to Acid Rain," New York Times, 16 April1996, p.
B6.
5.
A.P. Rubin, "Pollution by Analogy: The Trail
Smelter Arbitration," Oregon Law Review50 (1971), pp. 261, 264, 274-78.
6.
The Canadian Year- book of International Law, Vol.
1, (Vancouver: University of British Columbia Press, 1963), pp. 213-29.
7.
W. C. G. BURNS, D. GOLDBERG, M. WAGNER, Climate
Justice: The Prospects For Climate Change Litigation, American Society Of
International Law, Proceedings of the Annual Meeting, 2004
8.
M. BYERS, “Conceptualising the Relationship between
Jus Cogens and Erga Omnes Rules”, Nordic Journal of International Law, vol. 66
(1997) 211
[1] Article 38(1)(b) Statute of the
International Court of Justice: “international custom, as evidence of general
practice accepted as law”.
[2] PCA Trail Smelter Case (United
States v Canada) (1941) 3 RIAA 1905, 1965.
[3] Environmental Protection and
Sustainable Development: Legal Principles and Recommendations (London, Graham
and Trotman/ Martinus Nijhoff, 1987), p. 75, adopted by the Experts Group.
[4] Pulp Mills on the River Uruguay
(Arg. v. Uru.), Judgment, 2010 I.C.J. 14 (Apr. 20).
[5] Nuclear Tests (Austl. v. Fr.),
Judgment, 1974 I.C.J. 253 (Dec. 20); Nuclear Tests (NZ v. Fr), Judgment,1974
I.C.J. 457 (Dec. 20).
[6] Advisory Opinion on the Legal Consequences
for States of the Continued Presence of South Africa in Namibia, International
Court of Justice (ICJ), 21 June 1971,
https://www.refworld.org/jurisprudence/caselaw/icj/1971/en/15371 [accessed 01
April 2024].
[7] China has sought to challenge the
fact of the outbreak’s origins in that country. The Council on Foreign
Relations “Backgrounder” report noted that “Chinese officials have consistently
rejected not only the hypothesis that the virus originated at the Wuhan
laboratory, but that it originated in China at all . . . Meanwhile, Beijing has
called on the WHO to inv
estigate the possibility that the pandemic started in
other countries, including in the United States.” Claire Felter, Will the World
Ever Solve the Mystery of COVID-19’s Origin?, COUNCIL ON FOREIGN RELATIONS –
BACKGROUNDER (Nov. 3, 2021),
https://www.cfr.org/backgrounder/will-world-ever-solve-mystery-covid-19s-origin
[https://perma.cc/9H7T-E8JW].
[8]For examples of arguments
supporting the Zoonotic theory, see Steven Poole, ‘Zoonotic’: The Covid-19
Origins Theory that is Not that Batty, THE GUARDIAN (June 18, 2021),
https://www.theguardian.com/books/2021/
jun/18/zoonotic-the-covid-19-origins-theory-that-is-not-that-batty [https://
perma.cc/8LRL-P3XM].
Article Information
TRAIL SMELTER ARBITRATION (UNITED STATES V CANADA): TRANSBOUNDARY POLLUTION AND STATE RESPONSIBILITY BY – NAVYA SINHA
Authors: NAVYA SINHA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/17
- Issue 7
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