State Responsibility In The Face Of Transboundary Environmental

Imagine on a Sunday morning, you are sipping coffee on your balcony and breathing in the fresh air as somebody in the neighbourhood burns plastic and rubbish. Will not breathing waste smoke be uncomfortable and harmful?

A similar situation occurred in the Trail Smelter Case, only that it was a transboundary US Canada issue. This case impacted to a great extent the development of the International Environmental Law. Here, smelting by the “Consolidated Mining and Smelting Company of Canada Ltd.” which spewed sulphur dioxide into the air was the cause of the dispute. The 1809-incorporated private corporation was on the Columbia River in Trail, British Columbia, 11 miles from the US-Canada border. Roasting sulphur-bearing ores released sulphur dioxide gas that polluted Washington’s air. The company increased its smelting further in 1925 and 1926 adding to the already generated sulphur dioxide.

Hence, a farmer situated to the south of the border filed a formal complaint. After finding harm, the corporation settled with the complainant and for varied amounts, the corporation settled several other landowner issues. Thus, in 1927, the US government intervened in this dispute and advised the Canadian government to bring the case to the International Joint Commission under “Article IX of the Boundary Waters Treaty 1909.” After investigating, the Joint Commission determined $350,000 in US citizen damage until 1931 & that Canadian corporations should limit the disturbance and indemnify Washington citizens for potential damage, according to the commission.[1]

After two years, the harm lingered, so the US complained to Canada. After debating, both states agreed to go to the 1935 convention arbitral tribunal.

ISSUE IN THE CASE

Article III of the 1935 Convention presented four questions for the tribunal, all of which led to the question of whether the state must always defend other states from damaging activities by its citizens.

JUDGEMENT

The state must constantly protect other states from its inhabitants. No nation may emit or permit the emission of hazardous substances from its territory in violation of US or international law. On the evidence, the arbitrator ruled Canada accountable for Trail Smelter Company activity under international law. It ordered that the Canadian government must verify Trail Smelter’s international compliance & the Trail Smelter Company shall not cause any further damage though fumes in Washington. Hence, in furtherance of Article III of the convention, both governments require to provide indemnity for damage. Finally, the tribunal will oversee the smelter’s operations because they may create future damage if unchecked.

“The tribunal determined that Trail Smelter caused damage in Washington from January 1, 1932, to October 1, 1937” and hence $78,000 compensation must be paid, with 6% annual interest allowed until payment. Tribunal stated that this is the final indemnity and restitution for clear and unclear land damages within the above period.[2]

Moreover, the tribunal imposed a control regime over the smelting SO2 emissions. The tribunal developed a growing and non-growing area policy after regularly monitoring atmospheric sulphur dioxide levels & applying the regime to non-growing areas required modest changes to the growing season effectiveness method. Finally, the Tribunal thought that the prescribed regime will resolve the dispute without risking more damage from the trail smelter. The tribunal awarded $7,500 per year in future harm indemnity to the US which has to be paid against the cost of investigation when under Article XI of the treaty occurrence of damage is established.

ANALYSIS

Trail Smelter decision shaped worldwide environmental law. Its use expanded beyond environmental issues to other international issues. The Trail smelter is studied for sustainable development, law of the sea, and COVID-19 learning.

THE SUSTAINABLE DEVELOPMENT AND THE TRAIL SMELTER CASE

In the Danube Dam case,[3] Hungary suspended project progress with the Czechoslovak Republic to examine environmental impacts and repudiated treaties. However, the ICJ decided that both governments have to discuss the best ways to attain the treaty’s goals & stakeholders must assess environmental implications without compromising project goals. Hence, the Court described sustainable development as balancing economic expansion and environmental conservation. Similarly, the Trail Smelter Case too demonstrates sustainable development, as the tribunal tried to balance Canada’s economic development with the US’s environmental protection. The tribunal permitted the smelter to operate since it was one of the largest on the continent and would have hurt Canada’s economy.[4]

THE LAW OF THE SEA AND THE TRAIL SMELTER CASE

In the Trail Smelter case, the Tribunal ruled that no nation can use or allow the utilization of its lands in a way that sends fumes into neighbouring countries, damaging their land, buildings, and citizens. According to Law of the Sea, “a coastal state has sovereign rights over its Exclusive Economic Zone (EEZ) resources but not full sovereignty.”

Further, “according to Article 194(2) of the Law of the Sea Convention, states must ensure that activities under their jurisdiction or control do not harm other States or their environment, and that pollution from such activities does not spread beyond their sovereign rights areas.” This article allows the state the power to sue for damage to its resources by another state.

Hence, similarities exist between “the Law of the Sea Convention articles & the Trail Smelter Case.” Both cases include the sit utere concept, regardless of pollution area.[5]

COVID-19 PANDEMIC AND TRANSBOUNDARY HARM

If the COVID-19 pandemic violates the Transboundary Harm Principle, the state accountability mechanism, usually as determined in the Trail Smelter tribunal, should guide the tough remedy.

An award would entail the discontinuation of the conduct resulting in the pandemic. Inadequate or lax enforcement of food safety laws in China, especially restrictions that allowed the consumption of wildlife, are likely to blame if the outbreak was the consequence of a viral leap from sick animals to humans. The government might mandate a new, more detailed system for oversight and regulation of food safety. If the epidemic was caused by a breach at a research facility, the order may suggest expanding existing safety frameworks while also introducing new monitoring and enforcement options. These regimes should be created using nearly extensive evidence, just as was done in the Trail Smelter Arbitration.

The regime should have some sort of external verification built into it, not simply to make sure people are following the rules, but so that it may be modified as needed and even retired if necessary. In this case, striving for perfection is counterproductive. Considering the Trail Smelter tribunal’s admission that it could not design a system that would definitely ensure cessation and non-repetition is important for a number of reasons, not the least of which is due to the fact that doing so would be disrespectful to the universal, natural processes normally involved in the genesis of a viral outbreak. If the imposed regulatory framework would “probably remove the causes of the present controversy” and “probably result in preventing any damage of a material nature,” then that would be sufficient. This solution would satisfy both the international community’s interest in preventing future pandemics and China’s legitimate concern over unwanted interference in its internal affairs.

Trail Smelter should be examined due to the extensive actuarial effort needed to repair border crossing harm.[6] The finest evidence should guide efforts. Trail Smelter Arbitration parties split most evidence development costs. Serious ambiguity does not justify dismissing the compensation request. This will be “a perversion of fundamental principles of justice” and hurt the affected states and its residents. A commitment to a “solution just to all parties” should guide the effort. Hence, respecting pandemic dynamics would reduce China’s responsibility. Although China has seen multiple viral infections in recent decades, it may happen anywhere.[7] Chinese economy must “operate” as arbitrators anticipated Trail Smelter to for fairness and therefore, crippling compensation must be avoided and even no international law award includes exemplary or punitive damages.[8] Last, the exercise’s proportionality should account for some states’ mismanagement and bad policies that increased the crisis’s direct and indirect costs.[9]

Author: Aishwarya Patil, in case of any queries please contact/write back to us via email to [email protected] or at IIPRD.

[1] “Report of International Arbitral Awards, Trail Smelter Case (United States, Canada), United Nations, Vol.III pp. 1905-1982 (2006).”

[2] Id.

[3] “Gabcikovo-Nagymaros Project, 1997 I.C.J. 7 (Sept. 25).”

[4] “Rebecca M. Bratspies & Russell A. Miller, TRANSBOUNDRY HARM IN INTERNATIONAL LAW: LESSONS FROM THE TRAIL SMELTER ARBITRAIOTN, 2006, p. 140.”

[5] Id.

[6] “Matteo Bonotti & Steven T. Zech, The Human, Economic, Social, and Political Costs of COVID-19, in RECOVERING CIVILITY DURING COVID-19 1 (2021).”

[7] “David Heymann, Emma Ross, & Jon Wallace, The Next Pandemic – When Could It Be?, CHATHAM HOUSE (Feb. 23, 2022), https:// www.chathamhouse.org/2022/02/next-pandemic-when-could-it-be.”

[8] “Nina H. B. Jørgensen, A Reappraisal of Punitive Damages in International Law, 68 BRITISH Y.B. INT’L L. 247 (1997).”

[9] “German Lopez, America’s Pandemic Failures, N.Y. TIMES (Aug. 18, 2022), https://www.nytimes.com/2022/08/18/briefing/monkeypox-cdcwalensky-covid.html.”