Trail Smelter arbitration

The Trail Smelter arbitration of 1938 and 1941 was a landmark decision about a dispute over environmental degradation between the United States and Canada. This was the first decision to recognize international liability for damages caused to another nation, even when no existing treaty created an obligation to prevent such damage.

A tribunal was set up by Canada and the United States to resolve a dispute over timber and crop damages caused by a smelter on the Canadian side of the border. The tribunal decided that Canada had to pay the United States for damages, and further that it was obliged to abate the pollution . In delivering their decision, the tribunal made an historic and often-cited declaration: "Under the principles of international law, as well as of the law of the United States, 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 or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence..." The case was landmark because it was the first to challenge historic principles of international law, which subordinated international environmental duty to nationalistic claims of sovereignty and free-market methods of unfettered industrial development. The Trail Smelter decision has since become the primary precedent for international environmental law , which protects the environment through a process known as the "web of treaty law." International environmental law is based on individual governmental responses to discrete international problems, such as the Trail Smelter issue. Legal decisions over environmental disputes between nations are made in reference to a growing body of treaties, conventions, and other indications of "state practices."

The Trail Smelter decision has shaped the core principle underlying international environmental law. According to this principle, a country which creates transboundary pollution or some other environmentally hazardous effect is liable for the harm this causes, either directly or indirectly, to another country. A much older precedent for this same principle is rooted both in Roman Law and Common Law: sic utere ut alienum non laedas —use your own property in such a manner as not to injure that of another. Prior to the twentieth century, this principle was not relevant to international law because actions within a nation's borders rarely conflicted with the rights of another.

See also Acid rain; Environmental Law Institute; Environmental liability; Environmental policy; United Nations Earth Summit

[Kevin Wolf ]