The Flawed Trail Smelter Procedure: The Wrong Tribunal, the Wrong Parties, and the Wrong Law
TRANSBOUNDARY HARMS IN INTERNATIONAL LAW: LESSONS FROM THE TRAIL SMELTER ARBITRATION, Rebecca Bratspies and Russell Miller, eds., 2005
26 Pages Posted: 14 Feb 2005
Trail Smelter is known for its famous holding: "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 meaning, relevance, and implications of those words have been the subject of an immense amount of scholarly attention. But the procedure that resulted in that holding is worthy of study in its own right.
The U.S. and Canadian governments created an innovative mechanism to address a paradigmatic example of a widespread problem in international relations: transboundary environmental harm caused and felt by private actors. The procedure was apparently successful. It resulted in a decision accepted by the governments, payment of damages to the private victims of the pollution, and changes in the operation of the polluter to reduce the level of transboundary harm. Despite this apparent success, however, the Trail Smelter procedure has proved to be remarkably unattractive to governments as a method of resolving international environmental disputes. Indeed, it has never been used again to resolve a private dispute over international environmental harm. Why not? Why do governments refuse to employ the Trail Smelter procedural precedent?
This essay argues that the refusal to apply the Trail Smelter procedure to resolve private international environmental conflicts is based at least in part on fundamental flaws in the procedure itself. In establishing the procedure, the U.S. and Canadian governments faced three basic questions: (a) whether to refer the dispute to an international or a domestic tribunal; (b) whether to allow the real parties in interest to appear on their own behalf, or to appear for them; and (c) whether to instruct the tribunal to apply domestic or international law. The governments' decisions on each of these points must have seemed reasonable at the time. But each of the decisions has proved unworkable. The governments chose the wrong tribunal, the wrong parties, and the wrong law. As a result, the Trail Smelter procedure has turned out to be useful primarily as an example of what not to do.
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