ENVIRONMENTAL LAW

EVOLUTION OF INTERNATIONAL ENVIRONMENTAL LAW

JEFFREY L. ONTANGCO

Environmental Laws in General Environmental laws are the standards that governments establish to manage natural resources and environmental quality. The broad categories of natural resources and environmental quality include such areas as air and water pollution, forests and wildlife, hazardous waste, agricultural practices, wetlands, and landuse planning. In the United States, some of the more widely known environmental laws are the Clean Air Act, the Clean Water Act, the National Environmental Policy Act, and the Endangered pecies Act. The body of environmental law includes not only the text of these laws but also the regulations that implement and the judicial decisions that interpret this legislation. In general, the standards set forth in environmental laws can apply to either private parties or the government. The Clean Air and Clean Water Acts, for example, are frequently used to regulate the polluting activities of private enterprises. These laws mandate certain pollutionreducing technology or limit the levels of pollution for power plants and factories. The National Environmental Policy Act (NEPA) applies only to the actions of the U.S. government. NEPA requires that the federal government undertake a comprehensive environmental impact assessment before it can proceed with projects that are likely to harm the environment. Distinguishing National Law from International Law To understand the nature of international environmental law, one must first understand the difference between national and international law. National law is law that is adopted by the government of an individual country. In the United States, the most common examples of national law are federal and state legislation and judicial decisions. Agency regulations and executive orders would also fall within this category. Although these national laws are adopted by an individual country, they may have international impacts. A foreign manufacturer whose defective product injures a person living in the United States may be held liable for resulting damages under U.S. law. The U.S. Corrupt Practices Act prevents a U.S. corporate executive from bribing a foreign government official. While these laws affect international activities and non-national parties, they are generally not considered international law. Rather, they are considered extraterritorial applications of national law. International law, on the other hand, concerns agreements among different nations, or between citizens or corporations of different nations. Agreements or treaties among different nations are generally referred to as public international law. Contracts between private parties (corporations or citizens) residing in different nations are

generally referred to as private international law. Because the field of international environmental law focuses on the relations and agreements among nations, it is part of public international law. Distinguishing between Hard and Soft International Law A distinction is often made between hard and soft international law. Hard international law generally refers to agreements or principles that are directly enforceable by a national or international body. Soft international law refers to agreements or principles that are meant to influence individual nations to respect certain norms or incorporate them into national law. Soft international law by itself is not enforceable. It serves to articulate standards widely shared, or aspired to, by nations. Similar parallels can be found at the national level. Often an official, a legislative body, or an agency will announce a new public policy or priority. In this announcement, or proclamation, there are often pledges to incorporate this new policy or priority into specific legal provisions. While the announcement itself is not enforceable in court, it nonetheless can have a powerful influence on the development and implementation of specific legal provisions. Private international law generally concerns business transactions between citizens or corporations of different countries. Because most of the rules governing these private transactions are enforceable in the courts of the concerned countries, these rules are usually deemed hard international law. Most of international environmental law, however, concerns general principles agreed upon among nations. Although these principles sometimes oblige countries to adopt implementing legislation, they are not usually enforceable on their own in court. The soft status of international environmental law, and most international law, is a result of concerns over sovereignty. Nations are generally reluctant to surrender control over their territory, peoples, and affairs to external international authorities. Even when nations have joined in international agreements, many of them have added reservations to preserve their right to decline to be bound by particular parts of the agreement. The exercise of this power weakens the total effectiveness of many international agreements. Means of Implementing and Enforcing International Environmental Law There are forums where international environmental disputes can be adjudicated, such as national courts, the International Court of Justice, and international arbitration panels. These forums, however, generally require that the disputing parties voluntarily submit to the jurisdiction of

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the court or panel. Additionally, even when these forums obtain jurisdiction over an international environmental dispute, they must rely on the cooperation of national governments to enforce rulings. For economic and political reasons, this cooperation is often withheld. A small number of environmental agreements have established international institutions that can directly impose trade sanctions (such as the Montreal Protocol, discussed on p. 20) or have authorized member states to impose trade sanctions against violating parties (such as the International Convention for the Regulation of Whaling, discussed on p. 29). For instance, in response to Japans violation of the International Whaling Commissions whaling moratorium, the United States threatened to restrict Japanese fishing vessel activity in U.S. territorial waters. Japan elected to accede to the whaling moratorium rather than suffer any such restrictions. The type of sanctions envisioned under the Montreal Protocol and International Whaling Commission are procedurally very difficult to impose. In general, there is no international body authorized to directly enforce international environmental law. The task of direct enforcement is left to the member nations, whose governments propose and adopt implementing policies. Sometimes the implementing national legislation is identical to the international agreement. For example, Canada implemented the Migratory Birds Treaty (with the United States) by adopting the Migratory Birds Treaty Act. Because the language of this act is identical to language in the treaty, the law is basically a legislative codification of the international agreement. Other times, however, the international environmental agreement is of a general nature and national governments must draft and implement more specific laws. For instance, in 1989 the International Convention on Transboundary Movement of Hazardous Waste was signed in Basel, Switzerland. This convention forbids the export of hazardous wastes to countries that lack adequate means to dispose of them. Under the terms of the convention, signatory nations are called upon to draft their own more specific national laws to implement this pledge. Although international institutions are generally not responsible for directly implementing and enforcing international environmental law, they often play important monitoring, informational, and diplomatic roles. For example, agendas adopted at the 1992 Convention on Environment and Development at Rio de Janeiro created a new international body, the Commission on Sustainable Development (CSD). The CSD meets yearly at the United Nations in New York to review and advance the implementation of Agenda 21an enormous and complex mandate. Most global agreements, such as the Biodiversity Convention and the Framework Convention on Climate

Change, are implemented by an annual or biennial Conference of Parties (COP). These COPs lack the power to bring enforcement actions against either governments or private parties. They help monitor national compliance by requiring member nations to submit annual reports. Through meetings and publications, COPs also provide a forum to discuss and debate issues associated with the implementation of the agreement. There are other institutions similar in function to the CSDs and the COPs. The North American Commission on Environmental Cooperation (NACEC), based in Montreal, Canada, monitors compliance with the North American Agreement on Environmental Cooperation, one of the side agreements under the North American Free Trade Agreement (NAFTA). The European Environmental Agency, based in Copenhagen, Denmark, monitors the compliance of individual European countries with environmental directives adopted by the European Union. Although the CSD, COPs, NACEC, and the European Environmental Agency indicate that the international community is trying to improve compliance with environmental agreements, there is still a lack of effective implementation and enforcement. A 1992 study by the U. S. General Accounting Office concluded that international environmental agreements lack adequate procedures to monitor and ensure compliance. Countries have become skilled in negotiating international environmental agreements, but they are much less skilled at making the agreement operate effectively. In the past two decades, states have also used economic incentives and trade bans to encourage compliance with international environmental agreements. For example, the Montreal Protocol, the Framework Convention on Climate Change, and the Biodiversity Convention provide economic incentives in the form of technical assistance, technology transfers, and money to build the administrative capacity of national environmental agencies. These incentives have been of particular value in promoting the involvement and compliance of developing countriespart of the Rio bargain between northern (developed) and southern (developing) countries. The Global Environmental Facility (GEF), a new international funding institution, also provides money for training, equipment, and enforcement related to environmental protection measures. Some recent international environmental agreements, such as the Biodiversity Convention, have designated the GEF as their exclusive funding mechanism. Jurisdiction for Disputes: Courts, Parties, and Enforcement Roughly speaking, jurisdiction may be defined as a courts legal ability to hear a complaint. If the subject matter of the case is not within the scope of a courts jurisdiction, or if one of the parties, either the one bringing the case (plaintiff) or the one against whom it is brought

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JEFFREY L. ONTANGCO

(defendant) is not within a courts jurisdiction, the court will not hear the dispute. This is particularly relevant to international environmental law for a number of reasons. First and foremost, if a treaty or convention does not specify an international forum that has subject-matter jurisdiction, often the only place to bring a suit with respect to that treaty is in the member states domestic court system. This then presents at least two additional hurdles. If the member state being sued does not have domestic implementing legislation in place to hear the dispute, there will be no forum available. Even in the event that the domestic legislation provides for suits of this nature, the judges who decide the case are residents of the country against which it is brought, and the resulting potential conflicts of interest are apparent. With respect to parties, only nations are bound by treaties and conventions. In international forums, such as the International Court of Justice, countries must consent to being sued in order to preserve their sovereignty. Thus, it is often impossible to sue a country. In any case, it is often a transnational corporation (TNC), not a country that has violated an international agreement. It is nearly impossible to sue a country for not enforcing its laws against a TNC or for not enacting sufficient implementing legislation. The final difficulty in the jurisdictional arena is the question of who may bring a suit. Often, only countries may sue countries, not individual citizens and not nongovernmental organizations. This has huge repercussions in that the environmental harm must be large and notorious for a country to even notice it. Second, for a country to have a stake in the outcome of the subject matter, some harm may have to cross the borders of the violating country into the country that is suing. Finally, even if trans boundary harm does exist, the issue of causation, especially in the environmental field, is often impossible to demonstrate with any certainty. In addition, in all fields of international law no country is ever in perfect compliance with every international obligation. Moreover, some countries are substantially more powerful than others. This may seem self-evident and unimportant, until one considers that suing another country may expose the plaintiff country to retaliatory actions. In spite of this political reality, however, Mexico successfully challenged the United States in the World Trade Organization in the Tuna Dolphin Case, and several Asian countries successfully challenged the United States over U.S. efforts to compel shrimp-exporting countries to harvest shrimp without harming turtles. The enforcement issue is one where advocates for a safer environment often find themselves stymied. The entirety of international law, beyond the environmental field, remains largely unenforceable, even if a treaty or convention provides for specific substantive measures to be taken by a country (which is not always the case, since many treaties

merely provide frameworks), and even if a forum for litigation or dispute resolution is specified or sanctions by member states for noncompliance are authorized. A country cannot be forced to do what it is not willing to do. One can sanction the country, order damages, restrict trade, or, most frequently, declare noncompliance, but beyond that, if a country will not comply, there is very little to be done. Countries usually accept or avoid international environmental obligations because it is in their economic self-interest to do so. Nations rarely take actions that may harm their domestic economy or their international trade for altruistic reasons. They take these actions expecting some economic or political benefit sooner or later. Brundtland Report The Report of the Brundtland Commission, Our Common Future, was published by Oxford University Press in 1987, and was welcomed by the General Assembly Resolution 42/187[6]. One version with links to cited documents[7] is available. The document was the culmination of a 900 day international-exercise which catalogued, analysed, and synthesised: written submissions and expert testimony from senior government representatives, scientists and experts, research institutes, industrialists, representatives of non-governmental organizations, and the general public held at public hearings throughout the world. The Brundtland Commission's mandate was to: [1] reexamine the critical issues of environment and development and to formulate innovative, concrete, and realistic action proposals to deal with them; [2] strengthen international cooperation on environment and development and assess and propose new forms of cooperation that can break out of existing patterns and influence policies and events in the direction of needed change; and [3] raise the level of understanding and commitment to action on the part of individuals, voluntary organizations, businesses, institutes, and governments (1987: 347). The Commission focused its attention on the areas of population, food security, the loss of species and genetic resources, energy, industry, and human settlements - realizing that all of these are connected and cannot be treated in isolation one from another (1987: 27). The Brundtland Commission Report recognised that human resource development in the form of poverty reduction, gender equity, and wealth redistribution was crucial to formulating strategies for environmental conservation, and it also recognised that environmentallimits to economic growth in industrialised and industrialising societies existed. As such, the Report offered [the] analysis, the broad remedies, and the recommendations for a sustainable course of development

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JEFFREY L. ONTANGCO

within such societies (1987: 16). However, the Report was unable to identify the mode(s) of production that are responsible for degradation of the environment, and in the absence of analysing the principles governing market-led economic growth, the Report postulated that such growth could be reformed (and expanded); this lack of analysis resulted in an obfuscated-introduction of the term sustainable development.[8] The report deals with sustainable development and the change of politics needed for achieving it. The definition of this term in the report is quite well known and often cited: "Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs". It contains two key concepts: the concept of 'needs', in particular the essential needs of the world's poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organization on the environment's ability to meet present and future needs." Environmental law Environmental law is a complex and interlocking body of treaties (conventions), statutes, regulations, and common law that operates to regulate the interaction of humanity and the natural environment, toward the purpose of reducing the impacts of human activity. The topic may be divided into two major subjects: pollution control and remediation, and resource conservation and management. Laws dealing with pollution are often medialimitedi.e., pertain only to a single environmental medium, such as air, water (whether surface water, groundwater or oceans), soil, etc.and control both emissions of pollutants into the medium, as well as liability for exceeding permitted emissions and responsibility for cleanup. Laws regarding resource conservation and management generally focus on a single resource, e.g., natural resources such as forests, mineral deposits or animal species, or more intangible resources such as especially scenic areas or sites of high archeological value, and provide guidelines for and limitations on the conservation, disturbance and use of those resources. These areas are not mutually exclusivefor example, laws governing water pollution in lakes and rivers may also conserve the recreational value of such water bodies. Furthermore, many laws that are not exclusively "environmental" nonetheless include significant environmental components and integrate environmental policy decisions. Municipal, state and national laws regarding development, land use and infrastructure are examples.

Environmental law draws from and is influenced by principles of environmentalism, including ecology, conservation, stewardship, responsibility and sustainability. Pollution control laws generally are intended (often with varying degrees of emphasis) to protect and preserve both the natural environment and human health. Resource conservation and management laws generally balance (again, often with varying degrees of emphasis) the benefits of preservation and economic exploitation of resources. From an economic perspective environmental laws may be understood as concerned with the prevention of present and future externalities, and preservation of common resources from individual exhaustion. The limitations and expenses that such laws may impose on commerce, and the often unquantifiable (non-monetized) benefit of environmental protection, have generated and continue to generate significant controversy. Given the broad scope of environmental law, no fully definitive list of environmental laws is possible. The following discussion and resources give an indication of the breadth of law that falls within the "environmental" metric. History While it is possible to identify earlier legal structures that would today fall into the "environmental" law metric - for example the common law recognition of private and public rights to protect interests in land, such as nuisance, or postindustrial revolution human health protections - the concept of "environmental law" as a separate and distinct body of law is a 20th Century development.[1] The recognition that the natural environment was fragile and in need of special legal protections, the translation of that recognition into legal structures, and the development of those structures into a larger body of "environmental law" did not occur until about the 1960s. At that time, numerous influences - including a growing awareness of the unity and fragility of the biosphere following mankind's first steps into outer space (see, for example, the Blue Marble), increased public concern over the impact of industrial activity on natural resources and human health (see, for example, the 1969 Cuyahoga River fire, the increasing strength of the regulatory state, and more broadly the advent and success of environmentalism as a political movement - coalesced to produce a huge new body of law in a relatively short period of time. While the modern history of environmental law is one of continuing controversy, by the end of the 20th Century, environmental law had been established as a component of the legal landscape in all developed nations of the world, many developing ones, and the larger project of international law. Controversy Environmental law is often the source of controversy. Notably, the early history of national environmental regulation in the United States (at the time the world leader

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JEFFREY L. ONTANGCO

in environmental regulation) was marked by relative political unity. The National Environmental Policy Act (1969), the Clean Air Act (1970), the Clean Water Act (1972), and the Endangered Species Act (1973) all were enacted with broad bipartisan support, and ultimately signed into law by Republican President Richard Nixon. Even then, however, critics raised concerns regarding the need for such laws and the costs involved in implementing them. Richard Nixon himself initially vetoed the Clean Water Act, citing its projected costs, though he was ultimately overridden by Congress.[2] Debates over the necessity, fairness, cost, and need for environmental regulation continue to this day. Necessity The necessity of directly regulating a particular activity due to the activity's environmental consequences is often a subject of debate. These debates may be scientific. For example, scientific uncertainty fuels the ongoing debate over greenhouse gas regulation and is a major factor in the debate over whether to ban pesticides.[3] Cost It is very common for regulated industry to argue against environmental regulation on the basis of cost. Indeed, in the U.S. estimates of the environmental regulation's total costs reach 2% of GDP,[4] and any new regulation will arguably contribute in some way to that burden. Difficulties arise, however, in performing cost-benefit analysis. The value of a healthy ecosystem is not easily quantified, nor the value of clean air, species diversity, etc. Furthermore environmental issues may gain an ethical or moral dimension that would discount cost. Effectiveness Environmental interests will often criticize environmental regulation as inadequately protective of the environment. Furthermore, strong environmental laws do not guarantee strong enforcement. Nonetheless, the cost benefit analysis for society at large between having laws that protect citizens from toxic or dangerous living and work conditions such as those that existed in the early industrial 1800's or not clearly comes down on the side of regulation. Environmental Law Around the World Many countries have adopted comprehensive environmental laws. Many nations ascribe to and follow, to varying degrees, international agreements regarding environmental issues. International Environmental Law Pollution does not respect political boundaries, making international law an important aspect of environmental law. Numerous legally binding international agreements

now encompass a wide variety of issue-areas, from terrestrial, marine and atmospheric pollution through to wildlife and biodiversity protection. While the bodies that proposed, argued, agreed upon and ultimately adopted existing international agreements vary according to each agreement, certain conferences, including 1972's United Nations Conference on the Human Environment, 1983's World Commission on Environment and Development, 1992's United Nations Conference on Environment and Development and 2002's World Summit on Sustainable Development have been particularly important. IEL: Organizing principles International environmental law's development has included the statement and adoption of a number of important guiding principles. As with all international law, international environmental law brings up questions of sovereignty, legal reciprocity ("comity") and even perhaps the Golden Rule. Other guiding principles include the polluter pays principle, the precautionary principle, the principle of sustainable development, environmental procedural rights, common but differentiated responsibilities, intragenerational and intergenerational equity, "common concern of humankind", and common heritage. IEL: Sources Treaties, protocols, conventions, etc. International environmental agreements are generally multilateral (or sometimes bilateral) treaties (a.k.a. convention, agreement, protocol, etc.). The majority of such conventions deal directly with specific environmental issues. There are also some general treaties with one or two clauses referring to environmental issues but these are rarer.[citation needed] There are about 1000 environmental law treaties in existence today; no other area of law has generated such a large body of conventions on a specific topic.[citation needed] Protocols are subsidiary agreements built from a primary treaty. They exist in many areas of international law but are especially useful in the environmental field, where they may be used to regularly incorporate recent scientific knowledge. They also permit countries to reach agreement on a framework that would be contentious if every detail were to be agreed upon in advance. The most widely known protocol in international environmental law is the Kyoto Protocol, which followed from the United Nations Framework Convention on Climate Change. Customary international law Customary international law is an important source of international environmental law. These are the norms and

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rules that countries follow as a matter of custom and they are so prevalent that they bind all states in the world. When a principle becomes customary law is not clear cut and many arguments are put forward by states not wishing to be bound. Examples of customary international law relevant to the environment include the duty to warn other states promptly about icons of an environmental nature and environmental damages to which another state or states may be exposed, and Principle 21 of the Stockholm Declaration ('good neighbourliness' or sic utere). International judicial decisions International environmental law also includes the opinions of international courts and tribunals. While there are few and they have limited authority, the decisions carry much weight with legal commentators and are quite influential on the development of international environmental law. One of the biggest challenges in international decisions is to determine an adequate compensation for environmental damages.[5] The courts include: the International Court of Justice (ICJ); the international Tribunal for the Law of the Sea (ITLOS); the European Court of Justice; European Court of Human Rights[6] and other regional treaty tribunals. Arguably the World Trade Organisation's Dispute Settlement Board (DSB) is getting a say on environmental law also. Important cases have included: Trail smelter arbitration, 33 AJIL (1939) Nuclear weapons testing cases, such as between New Zealand and France before the International Court of Justice; Gabcikovo-Nagymaros Dam Case, ICJ Rep (1997) IEL: Administration and enforcement Main article: United Nations Environment Programme IEL: Education and Training The IUCN Academy of Environmental Law[7] is a network of some 60 law schools worldwide that specialise in the research and teaching of environmental law. Trail smelter arbitration Trail Smelter in 1929 Main article: Trail Smelter dispute In 1927, a smelter in Trail was polluting, via smoke deposition, to farmlands south of the border in the United States. The US initially agreed to bring the issue before the International Joint Commission. A 1931 report the IJC recommended Canada compensate the United States for a

sum of $350,000 to the farmers, the US rejected the offer. In 1935 the two countries agreed to arbitration, in which Canada again offered to compensate the US $350,000 for all damages caused before 1932. In April 1938, after extensive expert assessments, the tribunal acknowledged that the smelter had caused damage after 1932. Then in 1941, it held 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 case is of serious consequence and the injury is establish by clear and convincing evidence." [4] This case, known commonly as the "Trail smelter arbitration", is a landmark in environmental law,[5] as it helped to establish the "polluter pays" principle for transnational pollution issues. Major players Smelter Management, 1928 The major players of the Trial Smelter dispute are the owners of the smelter, the Consolidated Mining and Smelting Company of Canada (COMINCO), and the American residents (mostly farmers and landowners who were affected by the smoke generated from the smelter). The farmers and landowners in Washington who had a mutual concern for the smoke drifting from the smelter, formed the Citizens' Protective Association (CPA) when their direct complaints to COMINCO were not addressed.[16][17] Initially the regional governments became involved, both the province of British Columbia and Washington State, but eventually the two federal governments took leadership roles in the dispute because of the issue of national boundaries and extraterritoriality.[18] Both governments were initially involved in the foundation of the International Joint Commission (IJC) in 1909, which was later responsible for investigating and then recommending a settlement for the alleged damages in the Trail case.[19] The transformation of the smelter dispute into a foreign policy issue resulted in more institutions joining the dispute. This included the Canada's National Research Council (NRC) and the American Smelting and Refining Company, which each contributed scientific experts to assess the damages from the smelter's smoke. Alleged damages A growing concern in 1925 was the smoke drifting from the smelter across the border into Washington, allegedly causing damages to crops and forests.[21] The smoke generated from the smelter became the source of complaints from American residents. Complaints included: sulphur dioxide gases in the form of smoke generated from the smelter was directed into the Columbia River Valley by prevailing winds, scorching crops and accelerating forest loss.[22] Effects of the smoke, as investigated by the US Department of Agriculture, included both "visible damage" in terms of "burned leaves and declining soil productivity"

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and "invisible damage" which consisted of "stunted growth and lower food value" for the crops.[23] Initial efforts to resolve After the complaints in 1925 regarding crop and forest destruction as a result of smoke from the smelter, COMINCO accepted responsibility and offered to compensate the farmers who were affected.[24] COMINCO also proposed installing fume-controlling technologies to limit future damage and reduce the emissions of sulphur dioxide. The company had initially raised smoke stacks to four hundred feet in an effort to increase the dispersion of pollutants; however, this had resulted in prevailing winds moving the noxious fumes downwind to the inhabitants of the Columbia River Valley, thereby making the situation worse.[25] The company also tried to offer payments to the affected residents or even offered to purchase the land outright, which some would have accepted. However, the company was denied this method of compensation because of Washington State's prohibition of property ownership by foreigners.[26] This led to the official petition by the farmers and landowners of Washington in 1927 for state and federal support against the smelter, claiming the smoke was damaging United States lands.[27] In 1931, the IJC awarded the farmers $350,000 in damages, but did not set guidelines for sulphur dioxide emission reduction.[28] The compensation was far less than the plaintiffs had expected and the IJC settlement was eventually rejected under the pressure of Washington's State Congressional Delegation. The unsatisfactory result of the IJC decision led to the establishment of a three-person Arbitral Tribunal to resolve the dispute in 1935. Arbitration details The arbitration case was originally between the farmers in the affected area and Cominco; however, what started off as the smelter versus agriculturalists evolved when regional and federal agents became involved, resulting in the dispute becoming an international issue.[29] Both sides employed a variety of experts to represent their interests,including scientists and private or public enterprises. The United States used the U.S. State Department along with scientists from the Department of Agriculture to conduct investigations about the effects of the smelter's output on agriculture in the region.[30] The Canadian side turned to Canadas National Research Council (NRC) and was granted access to the Salt Lake Research Station to conduct research for the smelter's defence.[31] These experts would remain active actors throughout the dispute. The decision laid down by the IJC awarded the farmers $350,000 in 1931 for the damages incurred by the Trail Smelter; this was much less than the farmers had sought.[32] Additionally, this was the first time the IJC ruled on a trans-boundary air pollution case. The U.S. State Department flatly rejected the decision and

submitted for arbitration. This resulted in diplomatic maneuvering which led to an Arbitral Tribunal; it was the Tribunals decision that produced the most significant results in the dispute. Tribunal It was not until 1935 that a Convention was signed in Ottawa, Canada that legitimized the Tribunal.[34] The Convention outlined 11 Articles under which the Tribunal would operate. Of the 11 articles, Article 3 outlines the four questions the Tribunal was to answer. Whether damage caused by the Trail Smelter in the State of Washington has occurred since the first day of January, 1932, and, if so, what indemnity should be paid? In the event of the answer to the first part of the preceding question being is positive, to what extent should there be compensation? In light of the answer to the preceding question, what measures or regime, if any, should be adopted or maintained by the Trail Smelter? What indemnity or compensation, if any, should be paid because of any decision or decisions rendered by the Tribunal pursuant to the next two preceding questions? The American lawyers argument can be summarized as trying to prove that invisible injury occurred in the region. Large sums of money rested on the results of this case as the decision would affect various other smelting projects across North America; as such, the lawyers representing Cominco successfully limited the definition of damage to the actual, observable, economic damage.[36] Lawyers on both sides were well practiced with substantial experience. R.C. Judge Crowe, VP of Cominco and a Montreal Corporate Lawyer, and John E. Read represented Cominco. The U.S. hired Jacob G. Metzger, a State Department attorney with experience in negotiating international claims.[37] Metzger had a habit of not writing his arguments down, and when he died in 1937 the American scientists and lawyers went into the hearing unprepared. The United States had conducted experiments that suggested sulphur soaked into the soil; however, the findings had limited standing in the arbitration because the data was from the early 1930s before the smelter implemented chemical recovery methods.[39] On the other hand, the Canadians had the resources and the smelting industry supporting them. The experimental data the American lawyers presented to the tribunal did not convince the arbitrators of invisible injury theory. Because of the Canadian lawyers' success in narrowing the definition to the actual, observable, economic damage, the arbitrators awarded $78,000 in damages for 2 burns

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causing visible damage in 1934 and 1936. The final settlement for damages was awarded in April 1938 and was considered a victory for COMINCO.[40] When weighed against the backbone of the Trail economy, as well as the smelter's contributions to the war effort, the economic contributions of small-scale famers in a less fertile agricultural area were minimal.[41][42] Reparations The consequences of the arbitration came in two parts; one being economic compensation for the local farmers of Steven's County, Washington and two effecting laws for transboundary air pollution issues. Transboundary issues meaning those that stretch between states and nations. COMINCO initially agreed to pay $350,000 in compensation to the local farmers for all damages before January 1, 1932.[43] However, this offer was rejected by the local residents and farmers, and the Washington government thus resulting in the arbitration. The arbiters final decisions were based on evidence for visible injury to the farmers livelihood, the US' case was poorly presented thus the tribunal's final decision in 1941 granted an additional $78,000 to the farmers and also imposed COMINCO's duty of regulating the smoke output.[44] The arbitration successfully imposed state responsibility for transnational air pollution. This set precedence for no states being able to use their territories in such a way that would cause harm by air pollution to another territory.[45] It was COMINCO's responsibility to regulate and control the pollution their smelting industries created. As a result, the state enforced regulatory rules on corporations to limit damaging emissions. For COMINCO, their company being subject to emission standards meant potentially limiting the output of their smelter. For the better part of twenty years the company fought every attempt to impose any sort of regulatory regime aimed at production levels.[46] Only after they learned that they could recycle sulfur dioxide to make fertilizer did they finally consent to emission standards.[47] The arbitration was significant because it defined the limits of environmentally permissible conduct between international boundaries: nations must not perpetrate significant harm to other nations through pollution. Precedents and long-term legacies Transboundary international law precedents Prior to the decision made by the Arbitral Tribunal on Trail, disputes over air pollution between two countries had never been settled through arbitration, and the polluter pays principle had never been applied in an international context.[48] When the Tribunal dealt with the details of the Trail Smelter Arbitration, there was no existing international law that dealt with air pollution;[49]

therefore, a law dealing with international air pollution was modelled after U.S. state laws, with the Tribunal referring to a number of cases in the U.S. that involved air pollution between multiple states.[50] During the Tribunal's decision-making, there was also confusion between defining 'damage' versus 'damages' when it came time to decide on an outcome; the Tribunal took 'damage' to mean 'damages' as in the monetary value lost by smoke pollution instead of as direct damage to the land.[51] Because of this, Canada's responsibility for the conduct of the smelter became making sure that the smelter did not cause any more smoke 'damage' to U.S. soil. The American inter-state law precedent caused a stir again in 2003 when the Colville Confederated Tribes launched a complaint against COMINCO for polluting Lake Roosevelt. Douglas Horswill, Senior Vice President for Teck Resources, stated that "in the U.S. legal process...Teck COMINCO would not be able to use the fact that it was operating with valid permits in its defence [because it is a Canadian company], whereas a U.S. company could";[52] Horswill's media statement reflects the tensions created by formulating an international law based on American interstate practices. When the International Law Commission (ILC) "adopted a series of Draft Articles on Prevention of Transboundary Harm from Hazardous Activities",[53] a fundamental problem was in defining nations as states, which was the result of applying the existing U.S. model of inter-state environmental laws to an international conflict. The Draft Articles contained a collection of provisions that focused on six points:[54] prevention of transboundary harm, cooperation to prevent significant harm and reduce risk, the exercise of regulatory control by states of activities on their territory through prior authorizations, environmental impact assessment, notification, and consultation Since polluting nations were to be held responsible for harms caused to another nation's environment, this was not applicable in the arbitration because the players involved were sub-groups of each nation's population and the populus that was most affected were not the sovereign states but the sub-groups. Although Canada accepted responsibility for the actions of the smelting plant, conflict resolution put the onus on Canada to compensate for COMINCO's past pollution rather than forcing COMINCO to prevent future harm to U.S. soil. The legacy of this decision includes the eventual creation of regulatory regimes to prevent environmental degradation, which allow

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nations to put states in charge of taking positive steps to control pollution. The failure by states to meet these responsibilities means they are breaching international law. Some scholars do not see the case as setting a precedent because the unique circumstances surrounding the Trail smelter have been articulated and discussed multiple times, therefore the arguments that arise for transboundary international law are divorced from the context they are derived from;[56] this distorts the decisions made in cases like the Trail Arbitration. For the arbitration, the decisions that appear to be the focus of literature on transboundary international law precedents are sub-articles 2 and 4 from Article 3 of the International Joint Commission's (IJC) recommendations. Bering Sea Arbitration Origins In 1867 the United States government purchased from Russia all her territorial rights in Alaska and the adjacent islands. The boundary between the two countries was a line drawn from the middle of Bering Strait south-west to a point midway between the Aleutian and Komandorski Islands dividing the Bering Sea into two parts, the larger being on the American side. This portion included the Pribilof Islands, the principal breeding-grounds of the seals in those seas. By Acts of Congress, passed between 1868 and 1873, the killing of seals was prohibited on the Pribiloff islands and in "the waters adjacent thereto" except upon certain specified conditions. This created a large swathe of friction between the executive and legislative branches of the US government with the Presidential Veto employed by Ulysses S. Grant on two notable occasions. No definition of the meaning of the words "waters adjacent" was given in the act. In 1870 the exclusive rights of killing seals on these islands was leased by the United States to the Alaska Commercial Company, on conditions limiting the numbers to be taken annually, and otherwise providing for their protection. As early as 1872, the operations of foreign sealers attracted the attention of the United States government, but any precautions then taken seem to have been directed against the capture of seals on their way through the passages between the Aleutian Islands, and no claim to jurisdiction beyond the three-mile limit appears to have been made. On March 12, 1881, the acting United States Secretary of the Treasury, in answer to a letter asking for an interpretation of the words "waters adjacent thereto" in the acts of 1868 and 1873, stated that all the waters east of the boundary line were considered to be within the waters of Alaska territory. In March 1886 this letter was communicated to the San Francisco customs by Daniel Manning, U.S. Secretary of the Treasury, for publication. British involvement and escalation

In the summer of 1886, three British Columbian sealers, the Carolena, Onward and Thornton, were captured by an American revenue cutter 60 miles from land. They were condemned by the district judge because they had been sealing within the limits of Alaska territory & owed a pro tanto obligation to respect the sovereign laws of the State of Alaska. Diplomatic representations followed and an order for release was issued but, in 1887, further captures were made which were judicially supported on the same grounds. From that point the United States claimed exclusive jurisdiction over the sealing industry in the Bering Sea; it also contended that the protection of the fur seal was an international duty, and should be secured by international arrangement. The British imperial government (then still in charge of foreign affairs for the Dominion of Canada) repudiated the claim, but was willing to negotiate on the question of international regulation. Negotiations Between 1887 and 1890, negotiations were carried out between Russia, Great Britain and the United States with a view to a joint convention but the parties were unable to agree on basis for regulating sealing in the open seas, the pelagic zone. America had seal nurseries on the Pribiloff Islands and Russia on the Komandorski group. Neither Britain, nor the dominion of Canada, had land access to the Bering Sea or seal breeding grounds. Thus, to prohibit pelagic sealing would have been to exclude Britain from the industry. The United States insisted that such prohibition was indispensable on the grounds that pelagic sealing involved the destruction of breeding stock, because it was practically impossible to distinguish between the male and female seal when in the water; and that it was unnecessarily wasteful, inasmuch as a large proportion of the seals so killed were lost. Britain contended that in all known cases the extermination of seals had been the result of operations upon land, and had never been caused exclusively by sealing in the pelagic zone. The negotiations came to nothing, and the United States fell back upon their claim of right. In June 1890, it was reported that certain American revenue cutters had been ordered to proceed to the Bering Sea. Sir Julian Pauncefote, the British ambassador at Washington, having failed to obtain an assurance that British vessels would not be interfered with, laid a formal protest before the United States government. Arbitration There followed a diplomatic controversy, in the course of which the United States developed the contentions which were afterwards laid before the tribunal of arbitration. The claim that Bering Sea was mare clausum was abandoned, but it was asserted that Russia had formerly exercised

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therein rights of exclusive jurisdiction which had passed to the United States, and they relied inter alia upon the ukase of 1821, by which foreign vessels had been forbidden to approach within 100 Italian miles of the coasts of Russian America. It was pointed out by Great Britain that this ukase had been the subject of protest both by Great Britain and the United States, and that by treaties similar in their terms, made between Russia and each of the protesting powers, Russia had agreed that their subjects should not be troubled or molested in navigating or fishing in any part of the Pacific Ocean. The American answer was that the Pacific Ocean did not include Bering Sea. They also claimed an interest in the fur seals, involving the right to protect them outside the three-mile limit. In August 1890 Lord Salisbury proposed that the question at issue should be submitted to arbitration. This was ultimately assented to by the secretary of state, James Gillespie Blaine, on the understanding that certain specific points, which he indicated, should be laid before the arbitrators. On February 29, 1892, a definitive treaty was signed at Washington, D.C. Each power was to name two arbitrators, and the president of the French Republic, the king of Italy, the king of Norway and Sweden were each to name one. Terms of reference and arbitrators The points submitted were What exclusive jurisdiction in the sea now known as Bering Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior to and up to the time of the cession of Alaska to the United States? How far were her claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain? Was the body of water now known as Bering Sea included in the phrase "Pacific Ocean", as used in the treaty of 1825 between Great Britain and Russia, and what rights, if any, in Bering Sea were held exclusively exercised by Russia after the said treaty? Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Bering Sea east of the water boundary, in the treaty between the United States and Russia of the 30th of March 1867, pass unimpaired to the United States under that treaty? Had the United States any and what right of protection over, or property in, the fur seals frequenting the islands of Bering Sea when such seals are found outside the threemile limit? In the event of a determination in favour of Great Britain the arbitrators were to determine what concurrent regulations were necessary for the preservation of the seals, and a joint commission was to be appointed by the two powers to assist them in the investigation of the facts of seal

life. The question of damages was reserved for further discussion, but either party was to be at liberty to submit any question of fact to the arbitrators, and to ask for a finding thereon. The tribunal was to sit at Paris. The treaty was approved by the United States Senate on the March 29, 1892, and ratified by the president on April 22. The United States appointed as arbitrator Mr. John M. Harlan, a justice of the Supreme Court, and Mr John T. Morgan, a member of the Senate. The British arbitrators were Lord Hannen and Sir John Sparrow David Thompson. The neutral arbitrators were the baron de Courcel, the marquis Visconti Venosta, and Mr Gregers Winther Wulfsberg Gram, appointed respectively by the president of the French Republic, the king of Italy, and the king of Norway and Sweden. The sittings of the tribunal began in February and ended in August 1893. Henry Williams Blodgett acted as U.S. counsel before the tribunal. Main arguments The main interest of the proceedings lies in the second of the two claims put forward on behalf of the United States. This claim cannot easily be stated in language of precision; it is indicated rather than formulated in the last of the five points specially submitted by the treaty. But its general character may be gathered from the arguments addressed to the tribunal. It was suggested that the seals had some of the characteristics of the domestic animals, and could therefore be the subject of something in the nature of a right of property. They were so far amenable to human control that it was possible to take their increase without destroying the stock. Sealing upon land was legitimate sealing; the United States being the owners of the land, the industry was a trust vested in them for the benefit of mankind. On the other hand, pelagic sealing, being a method of promiscuous slaughter, was illegitimate; it was contra bonos mores and analogous to piracy. Consequently the United States claimed a right to restrain such practices, both as proprietors of the seals and as proprietors and trustees of the legitimate industry. It is obvious that such a right was a novelty hitherto unrecognized by any system of law. Mr. J.C. Carter, therefore, as counsel for the United States, submitted a theory of international jurisprudence which was equally novel. He argued that the determination of the tribunal must be grounded upon "the principles of right," that "by the rule or principle of right was meant a moral rule dictated by the general standard of justice upon which civilized nations are agreed, that this international standard of justice is but another name for international law, that the particular recognized rules were but cases of the application of a more general rule, and that where the particular rules were silent the general rule applied." The practical result of giving effect to this contention would be that an international tribunal could make new law and apply it retrospectively. Mr. Carter's contention was successfully combated by Sir Charles Russell, the leading counsel for Great Britain.

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Conclusion The award, which was signed and published on 15 August 1893, was in favour of Great Britain on all points. The question of damages, which had been reserved, was ultimately settled by a mixed commission appointed by the two powers in February 1896, the total amount awarded to the British sealers being $473,151.26 - in excess of US$10 million in present-day inflation-adjusted dollars. The North Pacific Fur Seal Convention of 1911 severely curtailed the sealing industry. North Pacific Fur Seal Convention of 1911 The North Pacific Fur Seal Convention of 1911, formally known as the Convention between the United States and Other Powers Providing for the Preservation and Protection of Fur Seals, was an international treaty signed on July 7, 1911 designed to manage the commercial harvest of fur bearing mammals (such as Northern fur seals and sea otters) in the Pribilof Islands of the Bering Sea. The treaty, signed by the United States, Great Britain, Japan, and Russia, outlawed open-water seal hunting and acknowledged the United States' jurisdiction in managing the on-shore hunting of seals for commercial purposes. It was the first international treaty to address wildlife preservation issues. Terms of the treaty The fur seal's range. All pelagic sealing north of the 30th parallel in the Pacific Ocean was banned by the treaty. The two most significant terms of the treaty were the banning of pelagic seal hunting and the granting of jurisdiction to the United States in managing on-shore hunts. In exchange for granting jurisdiction to the United States, the other signatories to the treaties were guaranteed payments and/or minimum takes of seal furs while the treaty remained in effect, subject to certain conditions.[2] The treaty also provided an exemption to aboriginal tribes which hunted seals using traditional methods and for noncommercial purposes including food and shelter. Aboriginal tribes specifically mentioned in the treaty include the Aleut and Aino (Ainu) peoples.[2] Authorship and ratification The treaty was co-authored by environmentalist Henry Wood Elliott and United States Secretary of State John Hay in 1905, although the treaty was not ratified for another six years. [1] The treaty was signed at Washington, D.C. on July 7, 1911, with ratifications by each signatory on the following dates:

United States: Ratification advised by the Senate on July 24, 1911, and ratified by President William Howard Taft on November 24, 1911 Great Britain: August 25, 1911 Russia: October 22 / November 4, 1911 Japan: November 6, 1911 Ratifications were then exchanged at Washington on December 12, 1911, and the treaty was proclaimed two days later on December 14. [2] Enactment and legacy Following ratification, the United States Congress enacted an immediate 5-year moratorium on hunting, to allow for recovery of the decimated herds. The treaty remained in effect until hostilities erupted among the signatories in World War II. However, the treaty set precedent for future national and international laws and treaties, including the Fur Seal Act of 1966 and the Marine Mammal Protection Act of 1972.

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