Trail Smelter Arbitration (United States v. Canada)
rief Fact Summary. The United States (P) sought damages from Canada by suing them to court and also prayed
for an injunction for air pollution in the state of Washington, by the Trail Smelter, a Canadian corporation which is
domiciled in Canada (D).
Synopsis of Rule of Law. The duty to protect other states against harmful acts by individuals from within its
jurisdiction at all times is the responsibility of a state.
Facts. The Tail Smelter located in British Columbia since 1906, was owned and operated by a Canadian
corporation. The resultant effect of from the sulfur dioxide from Trail Smelter resulted in the damage of the state of
Washington between 1925 and 1937. This led to the United States (P) suit against the Canada (D) with an
injunction against further air pollution by Trail Smelter.
Issue. Is it the responsibility of the State to protect to protect other states against harmful acts by individuals from
within its jurisdiction at all times?
Held. Yes. It is the responsibility of the State to protect other states against harmful act by individuals from within
its jurisdiction at all times. No state has the right to use or permit the use of the territory in a manner as to cause
injury by fumes in or to the territory of another or the properties or persons therein as stipulated under the United
States (P) laws and the principles of international law.
By looking at the facts contained in this case, the arbitration held that Canada (D) is responsible in international
law for the conduct of the Trail Smelter Company. Hence, the onus lies on the Canadian government (D) to see to it
that Trail Smelter’s conduct should be in line with the obligations of Canada (D) as it has been confirmed by
International law. The Trail Smelter Company will therefore be required from causing any damage through fumes
as long as the present conditions of air pollution exist in Washington. So, in pursuant of the Article III of the
convention existing between the two nations, the indemnity for damages should be determined by both
governments. Finally, a regime or measure of control shall be applied to the operations of the smelter since it is
probable in the opinion of the tribunal that damage may occur in the future from the operations of the smelter
unless they are curtailed.
Discussion. Responsibility for pollution of the sea or the existence of a duty to desist from polluting the sea has
never been laid at the feet of any country by any international tribunal. Although regulation of pollution is just
commencing, it must ensure that there is equilibrium against freedom of the seas guaranteed under general and
long established rules of international law.
The Gabcíkovo-Nagymaros Project
(Hungary/Slovakia)
Judgment of 25 September 1997
The case arose out of the signature, on 16 September 1977, by the Hungarian People's Republic and the
Czechoslovak People's Republic, of a treaty concerning the construction and operation of the Gabcíkovo-Nagymaros
system of locks in order to further the utilization of the natural resources of the Bratislava-Budapest section of the
Danube river. The project was essentially aimed at the production of hydroelectricity, the improvement of
navigation on the relevant section of the Danube and the protection of the areas along the banks against flooding. It
provided for the building of two series of locks, one at Gabcíkovo (in Czechoslovak territory) and the other at
Nagymaros (in Hungarian territory), to constitute a single and indivisible operational system of works.
As a result of intense criticism which the project had generated in Hungary, the Hungarian Government decided on
13 May 1989 to suspend the works at Nagymaros pending the completion of various studies. In October 1989,
Hungary decided to not continue the work any further.
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During this period, negotiations took place between the parties. Czechoslovakia also started investigating
alternative solutions. One of them, an alternative solution subsequently known as "Variant C", entailed a unilateral
diversion of the Danube by Czechoslovakia on its territory. On 23 July 1991, the Slovak Government decided to
begin construction to put the Gabcíkovo Project into operation by the above-mentioned alternative solution.
On 19 May 1992, the Hungarian Government transmitted to the Czechoslovak Government a note
verbale unilaterally terminating the 1977 Treaty with effect from 25 May 1992. On 15 October 1992, Czechoslovakia
began work to enable the Danube to be closed and, starting on 23 October, proceeded to the damming of the river,
before Slovakia became an independent State on 1 January 1993.
Slovakia and Hungary then concluded in April 1993 a compromis, inter alia requesting the Court to decide whether
the Republic of Hungary had been entitled to suspend and subsequently abandon, in 1989, the works on the project.
In its judgment of 25 September 1997, the Court started by taking the view that in many respects the provisions of
the Vienna Convention concerning the termination and the suspension of the operation of treaties, set forth in its
Articles 60 to 62, are to be considered as a codification of customary international law. It then found that in
suspending and subsequently abandoning the works for which it was still responsible Hungary had expressed its
unwillingness to comply with at least some of the provisions of the Treaty of 1977, the effect of which was to render
impossible the accomplishment of the system of works that the Treaty expressly described as single and indivisible.
The Court further considered that the state of necessity is a ground recognized by customary international law for
precluding the wrongfulness of an act not in conformity with an international obligation. It also considered,
moreover, that such ground for precluding wrongfulness can only be accepted on an exceptional basis. It
acknowledged that the concerns expressed by Hungary for its natural environment in the region related to an
essential interest, but that the perils invoked by Hungary, without prejudging their possible gravity, were not
sufficiently established in 1989, nor had they been imminent; and that Hungary had had available to it at that time
means of responding to these perceived perils other than the suspension and abandonment of works with which it
had been entrusted.
The Court also noted that Hungary - when it decided to conclude the 1977 Treaty – had been presumably aware of
the situation as then known; and that the need to ensure the protection of the environment had not escaped the
parties. The Court therefore concluded that, even if it had been established that there was, in 1989, a state of
necessity linked to the performance of the 1977 Treaty, Hungary would not have been permitted to rely upon that
state of necessity in order to justify its failure to comply with its treaty obligations, as it had helped to bring it about.
In the light of the conclusions reached above, the Court found that Hungary had not been entitled to suspend and
subsequently abandon the works for which it was responsible.
As to the question whether the Czech and Slovak Federal Republic had been entitled to proceed, in November 1991,
to the provisional solution and to put into operation from October 1992 this system, the Court observed that the
basic characteristic of the 1977 Treaty was to provide for the construction of the system of locks as a joint
investment constituting a single and indivisible operational system of works. The Court accordingly concluded that
Czechoslovakia, in unilaterally putting Variant C into operation, was not applying the 1977 Treaty but, on the
contrary, violated certain of its express provisions, and, in so doing, had committed an internationally wrongful act.
As to the legal effects of the notification of the termination of the Treaty by the Republic of Hungary, the Court first
observed that, even if a state of necessity is found to exist, it is not a ground for the termination of a treaty but may
be only invoked to exonerate from its responsibility a State which has failed to implement a treaty.
Besides, in the Court's view, the prevailing political conditions had not been so closely linked to the object and
purpose of the Treaty that they constituted an essential basis of the consent of the parties and, in changing,
therefore did not radically alter the extent of the obligations still to be performed. The changed circumstances
advanced by Hungary had thus, in the Court's view, not been of such a nature that their effect would radically
transform the extent of the obligations still to be performed in order to accomplish the project.
While reiterating that Czechoslovakia had violated the treaty when it diverted the waters of the Danube, the Court
found that it had not yet done so when constructing the works which eventually led to the putting into operation of
Variant C. In the Court's view, therefore, the notification of termination by Hungary on 19 May 1992 had been
premature and Hungary had thus not been entitled to invoke any such breach of the treaty as a ground for
terminating it when it did.
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Finally, the Court took the view that although it had found that both Hungary and Czechoslovakia had failed to
comply with their obligations under the 1977 Treaty, this reciprocal wrongful conduct did not bring the Treaty to an
end nor did it justify its termination.
In the light of these conclusions, the Court found that the notification of termination by Hungary of 19 May 1992 did
not have the legal effect of terminating the 1977 Treaty.
As to the question whether Slovakia had become a party to the 1977 Treaty as a successor State of Czechoslovakia,
the Court referred to the principle that treaties of a territorial character remain unaffected by a succession of States,
a principle which, according to the Court, is part of customary international law. The Court accordingly concluded
that the Treaty itself had not been affected by a succession of States and had thus become binding upon Slovakia on
1 January 1993.
As to the legal consequences of the judgment, the Court observed that the 1977 Treaty was still in force and
consequently primarily governed the relationship between the Parties. Taking into account the fact, however, that
the Treaty had not been fully implemented by either party for years, it considered that the factual situation as it
had developed since 1989 was to be placed within the context of the preserved and developing treaty relationship, in
order to achieve its object and purpose in so far as that is feasible.
President Schwebel and Judge Rezek appended declarations to the judgment while Judges Weeramantry, Bedjaoui
and Koroma all appended separate opinions. Finally, Judges Oda, Ranjeva, Herzegh, Fleischhauer, Vereshetin and
Parra-Aranguren and Judge ad hoc Skubiszewski appended dissenting opinions.
On September 3, 1998, Slovakia, on the basis of Article 5 (3) of the Special Agreement, filed a request for an
additional judgment in the case, such an additional judgment being necessary, according to Slovakia, because of the
unwillingness of Hungary to implement the Judgment delivered by the Court. At the moment of writing, this item
was still under negotiations between the Parties; no formal act having been taken by the Court.
SOUTHERN BLUEFIN TUNA CASE (AUSTRALIA & NEW ZEALAND V JAPAN) Cases Nos. 3 and 4
ITLOS (1999)
Facts
a. This case was held at the World Bank headquarters in Washington as an Arbitral Tribunal
b. The Southern Bluefin Tuna is a severely depleted species. The main areas to engage in fishing for SBT are
Australia, Japan and New Zealand. The three States realized the dramatic reduction of SBT and in May 1993 they
signed the Convention for the Conservation of Southern Bluefin Tuna. The main purpose of the CCSBT is to decide
measures of management for the SBT and the total allowable catch that may be made. There was a total allowable
catch of 11,750 tonnes. In 1998, Japan decided to start an Experimental Fishing Program because of their
uncertainty in the SBT stock assessment. New Zealand and Australia rejected the EFP because it is outside the
framework of the Commission. The two States submitted the dispute to arbitration and filed a request for
provisional measures with ITLOS against Japan. There was a challenge of jurisdiction by Japan to the ITLOS.
c. Japan claimed that even if the ITLOS claimed jurisdiction, provisional measures were not warranted. Under the
CCBST, Japan felt that their actions presented no risk of irreparable injury to the SBT stock and that the two
States would be fully compensated by future reductions in Japan’s catch. Japan’s final claim was that the two States
resume negotiations with a new view on the total allowable catch, annual quotas and continuation of EFP.
d. The defendants claim that the Japanese EFP is a violation of its duty to cooperate in the conservation in the SBT
treaty and UNCLOS. Unilateralism is not in the SBT Treaty and would thoroughly hurt the framework of the
defined regional fishery organization.
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Questions
a. Does the ITLOS under UNCLOS have jurisdiction to hear and decide this case?
b. Does New Zealand and Australia have a right to stop Japan’s EFP under the CCBST?
Decisions
a. The arbitral tribunal found that article 16 of the CCSBT constitutes an agreed list of choices for the pursuit of
peaceful settlement. The UNCLOS and CCSBT are intertwined in that it implements broad principles set out in
UNCLOS. Therefore, this case did have jurisdiction to be heard.
b. If there is no judicial settlement or other peaceful means of their own choice, they are then referred to the ICJ.
The Tribunal prescribed provisional measures for the three States. They were to prevent aggravation or extension of
the dispute, parties to keep catches to levels last agreed, refrain from conducting an experimental fishing
programme, resume negotiations and to seek agreement with others engaged in fishing for SBT.
Principles
a. The main principles of this case fall under the articles in the UNCLOS and in the Convention for the
Conservation of Southern Bluefin Tuna
b. Article 290(6) of the UNCLOS was the deciding principle in this case stating that the parties in dispute must
comply with the provisional measures set forth under the article.
c. This case also illustrates the principles of Arbitral Tribunals
Conclusion
There are many current fishery disputes with disagreements over catch limits and conservation. The Law of
the Sea is very vague which means that disputes must be addressed thoroughly in the UNCLOS. It seems to be very
hard to develop workable policies in the area of fishery management which means that the disputes can worsen and
many more cases will develop. This case was important because it shows the importance of cooperation and
negotiation in a regional organization. UNCLOS and ITLOS hope that these cases will set precedence for those
trying to cause more disputes concerning fishing.
MOX Plant Case page 262
https://www.un.org/Depts/los/doalos_publications/publicationstexts/digest_website_version.pdf
Case concerning Pulp Mills on the River Uruguay
The International Court of Justice (the “ICJ“), the principal juridical organ of the United Nations, handed down an
important judgment that clarifies the relevant standards for a breach of environmental obligations. The judgment
will be of interest to states and corporate bodies alike when reviewing compliance.
The ICJ held that Uruguay breached its procedural obligations under a bilateral treaty to co-operate with Argentina
and the Administrative Commission of the River Uruguay (“CARU“) during its plans to build two pulp mills on the
River Uruguay. However, Argentina did not win the second and more significant limb of its case, which was the
allegation that Uruguay breached its substantive obligations to protect the environment. This case allowed the ICJ
to develop its jurisprudence on international environmental law and trans-boundary watercourses. It is also
particularly noteworthy given that it is one of the first large international cases in which the judgment was given
live internet coverage, following in the footsteps of the Abyei arbitration.
Background
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In October 2003, the Uruguayan government granted permission to the Spanish Company, ENCE, to build a pulp
mill in Fray Bentos, on the River Uruguay. Botnia, a Finnish company, then also received environmental
authorisation to build a mill in February 2005. The River Uruguay forms a border between Argentina and Uruguay
and its use is regulated by the Statute of the Uruguay River, a bilateral treaty entered into by the two countries in
1975 (the “Statute“).
Argentina brought a complaint before the ICJ on 4 May 2006, alleging that the Uruguayan government had violated
the Statute. Argentina initially sought a provisional measures order from the ICJ, suspending construction of the
pulp mills, although this was dismissed. Argentina’s principal claims were:


that Uruguay had not complied with the notification and consultation procedure set out in the Statute by
authorising the construction of two pulp mills without the prior consent of Argentina; and
that the mills would have an environmental impact on the river and surrounding areas, in particular that
they would breach Uruguay’s obligation under the Statute to preserve the aquatic environment of the river,
by failing to protect biodiversity and fisheries.
Argentina consequently sought compensation, an end to construction, and a guarantee of compliance with the
Statute in the future.
Uruguay argued that its only obligations had been to inform Argentina, which it had done, albeit after its decision.
Furthermore, the technology used would avoid polluting the river, as state-of-the-art waste cleansing equipment,
which had been adopted by both the US and the EU as the best available technology, was going to be used. This
position was supported by an independent World Bank study.
Procedural obligations
The ICJ held that Uruguay breached its procedural obligations by not informing CARU of its plans to construct the
mills before it issued its environmental authorisations. Although Uruguay did notify Argentina, this communication
did not take place through CARU and this was only after the Uruguayan government had issued its authorisations.
The ICJ held that Uruguay “disregarded the whole of the co-operation mechanisms provided for in Article 7 to 12 of
the…Statute“. In terms of remedy, it considered that the declaration by the ICJ of this breach constituted
appropriate satisfaction.
Environmental obligations
Argentina claimed that Uruguay had breached four different substantive obligations in relation to the
environmental well-being of the river. These were:
1.
2.
3.
4.
to contribute to the optimum and rational utilisation of the river;
to ensure that the management of the soil and woodland did not impair the quality of the waters;
to co-ordinate measures to avoid changes in the ecological balance; and
to prevent pollution and preserve the aquatic environment.
However, the ICJ did not uphold any of these claims. With regard to the fourth claim, it held that Argentina had not
established that the concentration of the discharges of the Botnia mill exceeded the limits set out in the Statute. In
order to assess the environmental standards by which to assess the claim, it applied not only the wording of the
Statute, but also the digest adopted by CARU, and the domestic regulations adopted by each party in relation to the
Statute.
In a significant section of the judgment, the ICJ noted that the obligation to undertake an environmental impact
assessment where there is a risk that the proposed activity may have a significant adverse impact in a transboundary context, has gained so much acceptance among States that it may now be considered “a requirement under
general international law“. Interestingly, in the circumstances of the case, it did not find that this included a legal
obligation to consult the affected populations, although it noted that the consultation had in fact taken place.
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In summary, the ICJ held that:
“there is no conclusive evidence in the record to show that Uruguay has not acted with the requisite degree of due
diligence or that the discharges of effluent from the…[Botnia] mill have had deleterious effect or caused harm to
living resources or to the quality of the water or ecological balance of the river since it started its operations in
November 2007“.
Conclusion
The ICJ considered that “its finding of wrongful conduct by Uruguay in respect of its procedural obligations per se
constitutes a measure of satisfaction for Argentina“. Argentina may not however be entirely satisfied with the
judgment given that the ICJ did not feel able, in the absence of any finding of breach of the substantive obligations
of the Statute, to uphold any claim for compensation. Furthermore, the ICJ failed to see any special circumstances
requiring guarantees from the Uruguayan government to refrain from contravening the Statute.
Although assessing obligations under a specific Statute, the judgment provides guidance to any entity whose
business potentially has a cross-boundary environmental impact, as to the requirement for impact assessments and
the way in which environmental standards are assessed in the event of a dispute. National courts and international
tribunals will no doubt look to the jurisprudence of the ICJ in this regard.
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