Trail Smelter Case Study

Our existence depends on how well we plan and implement policy through international cooperation. As our population continues to increase in the twenty-first century, it will provide us with the clue about how government makes sustainable plans about our future generations. Our present generation continues to consume more resources than what is presently in production, thus increasing the consumption level which has created water shortages, forest depletion for urbanization, more energy consumption, and food crisis, diseases and many more environmental problems. As the result of this, an evolution of transboundary effects are occurring. Our needs are changing to focus on environmental pollution and natural resource management, soil erosion,

and degradation, all of which continues to happen as the result of global trade becoming the pillar of many of our environmental problems. Due to this, international trade has had a profound impact on environmental pollution, deforestation and environmental degradation. This has resulted in wide ranging environmental health and safety problems beyond national borders.
Over many decades, this problem has resulted in numerous international debates and lawsuits, some of which lead to the “Trail Smelter” Case between the United States and Canada in the early 1900’s.

According to Gerald F. Hess, author of “The Trail Smelter, the Columbia River, and the Extraterritorial Application of CERCLA”, writes “the Trail Smelter emitted between 100 and 700 tons of sulphur dioxide per day.3 Beginning in 1925, Washington farmers located near the border with British Columbia began complaining to Consolidated Mining about emissions from the smelter.4 In 1928, the United States and Canada agreed to refer the dispute to the International Joint Commission (IJC).5 In 1931, the IJC issued its final report, recommending that Canada pay the United States US$350,000 in compensation for damages caused by emissions from the Trail Smelter and that Consolidated Mining install devices to reduce its sulphur dioxide emissions”(Hess, 2005). This example strengthened international environmental laws and brought new developments to managing pollution across national borders. It is important to note that the establishment of an international tribunal environmental agreement by the both countries was a unique

decision.
The tribunal allows both countries to settle the Trail Smelter dispute in a peaceful manner. However, it is vital to understand that International agreements and bilateral arrangements play a leading role in global efforts to protect the environment and promote safety for its residents. While these agreements promote international environmental laws and binding obligations, they demonstrate efforts that strengthen international relations and cooperation between countries as well as build consensus on environmental issues globally. Although there is evidence that some countries do not sign international agreement that seeks to strengthen environmental laws, such agreements in the past promoted environmental reforms. For example, climate change presents a global problem as a result, research indicates that it presents global environmental damage, but governments are yet to implement policies that will prevent such catastrophes. According to the author of Evolutions Edge, Taylor Graeme, argued that “Resistance to a tough and enforceable international agreement is not just coming from the rich countries. Most developing nations have, to date, opposed the idea of mandatory limits on the basis that they produce far less pollution per capita than industrialized nations” (Graeme 40, 2008). Although, nations also face constraints when dealing with environmental laws,
I think that the establishment of an international tribunal between United States and Canada contributes impressively to global environmental laws and bilateral agreements that protect the environment from hazardous waste, and promote international watercourses, and forest ecosystems.

Such agreement provides both a theoretical and policy framework that promotes international environmental law. I believe that there were more pragmatic approaches to solve this problem from a culture and legal perspective. However, the establishment of an international environmental dispute tribunal created a new norm to legally resolve transboundary environmental problems. For example, Hess writes “In 1935, the countries signed and ratified a convention that referred the Trail Smelter dispute to an arbitral tribunal.9 in its interim decision in 1938, the tribunal concluded that the emissions from the Trail Smelter had harmed crops and trees in Washington and awarded the United States US$78,000 in compensation. In its final decision in 1941, the tribunal held that the Trail Smelter should avoid air emissions that harm Washington, that a detailed pollution control regime should be implemented at the smelter, and that Canada would be responsible for paying damages for harm in the United States from future smelter emissions”(Hess, 2005). It is important to note that international environmental law plays a leading role in environmental management worldwide, thus instituting and executing proper

policies and reforms that provide environmental protection in the developing world. The United States and Canada encourage the establishment of an international environmental tribunal through diplomatic channels. This prompted both governments to establish a joint commission to investigate the Trail Smelter case which was accused of transboundary air and water pollution in the United States. This sets the basis for the implementation of international law that calls for a comprehensive environmental pollution control and assessment across national borders. The United States uses a legal framework that values environmental conservation methods and establishes international environmental cooperation between both countries.
Since the establishment of such bilateral cooperation, both countries have comprehensively addressed the problem associated with the Trail Smelter. Hess continues to provide detailed explanation of the legal framework when he writes, “These holdings flowed from a fundamental principle of international law articulated by the tribunal 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 territory of another or the properties or persons therein, when the cause is of serious consequence and the injury is established by clear and convincing evidence (Hess, 2005). This fundamental principle provided the legal framework for the United States to address the Trail Smelter. Finally, it is important to state that it is a difficult matter, jurisdictionally, to bring an international lawsuit against a particular country. However, there are other frameworks that the United States government would have used to prevent the Trail Smelter problem as a result of transboundary pollution.
The United States world have considered international environmental engagements through diplomatic channels that allow countries to settle disputes through bilateral agreement. It is vital to note that in the absence of a legal framework, bilateral negotiation between both countries would have traditionally helped solve this problem. It enables nations to coexist so as to promote free trade. Hess also explains that “communications between the governments of the United States and Canada regarding the investigation and remediation of the contamination of the Upper Columbia River stress two related advantages of a diplomatic solution. First, a diplomatic resolution is consistent with the long history of bilateral cooperation on environmental issues that affect both countries.90 For example, the United States and Canada used diplomacy and bilateral agreements to address water pollution issues in the Great Lakes in the 1970s and acid rain in the 1980s and 1990s” (Hess, 2005) it is important to note that such agreements are the by-products of diplomacy which often solve the existing environmental problems. Over the past years diplomatic and bilateral relations have been demonstrated to solve environmental management issues at the international level.