Part 1 Both the Trail Smelter and the Chernobyl episodes greatly affected the evolution of international environmental law. The smelter operation at Consolidated Mining and Smelting Company at Trail, British Columbia, had caused damages across the border in Washington State. Arbitration settlement resulted in Canada agreeing to pay the US $350,000 for damages accrued by the fumes from the smelting operation prior to 1932.[footnoteRef:2] With Chernobyl a half century later, the nuclear reactor meltdown and fallout damaged the environment in Belarus, Ukraine and Russia, along with several other European states. Three consequences from these two episodes in shaping the new regime of international law were that: 1) they established harm principles, which 2) shifted to regime responsibility by the end of the century, which resulted in 3) the establishment of climate justice at the Paris Agreement of 2015. Each of these consequences can be seen in concrete ways, particularly when it comes to regime responsibility: The Kyoto Protocol came into force in February of 2005, with 156 state parties signing on, including Canada, the EU states, China and India. The US refrained. The regime of greenhouse emissions and climate change was implemented with legally binding targets (and penalties for failing to reach those targets) pegged to 1990 levels; developed nations were to achieve 5% reduction of greenhouse gases in 2008-12 through the implementation of “carbon sinks” and credit schemes; LDCs were to be stabilized. The Paris Agreement of 2015 built on the Rio, Durban, and Kyoto Agreements but was more inclusive, bringing LDCs, public and regional organizations into the mix and establishing a fund for the equity and principle of the common (climate justice). Formal national plans are to be filed with nations implementing a 1.5-2% emission cap and making transparency a norm by 2023. [2: REPORTS OF INTERNATIONAL ARBITRAL AWARDS: Trail smelter case (United States, Canada). 16 April 1938 and 11 March 1941. VOLUME III. NATIONS UNIES - UNITED NATIONS (2006), pp. 1905-1982.]

Trail Smelter and the Harm Principle

The Trail Smelter case was important in the wider evolution of international environmental law because it was the first of its kind. Before it, the general attitude of states was that they had a sovereign right to use their own resources as they saw fit without respect to negative effects such utility might have on neighbors. The Trail Smelter adjudication changed all of that. The Tribunal found that states are responsible for whatever environmental harm they cause to their neighbors as a result of activities conducted within their borders. This was beginning of the Harm Principle in environmental law. The Harm Principle has been echoed in various Declarations over time, including the Stockholm, Rio, Kyoto and Paris Declarations.[footnoteRef:3] The Chernobyl disaster in the 1980s would play a major role in further evolving the international community’s position on environmental law. [3: Akehurst, Chapter 16, p. 252.]

Chernobyl and the Shift to Regime Responsibility

The fallout from the Chernobyl nuclear disaster was such that even well in the 21st century there are still...

For instance, farmers in Wales are still dealing with semi-permanent restrictions impacting the sale of lamb products due to the radioactive contamination that spread from Chernobyl nearly forty years prior. That is but one example of how significant environmental damage can be to a way of life some thousands of miles away.[footnoteRef:4] [4: Michael Ewing-Chow and Darryl Soh , “Pain, Gain, or Shame: the Evolution of Environmental Law and the Role of Multinational Corporations ,” Indiana Journal of Global Legal Studies, vol. 16, no. 1 (2009), 202.]
Several treaties had been signed at the international level prior to the Chernobyl disaster, but none of them was sufficient to deal with the environmental catastrophe.[footnoteRef:5] [5: Akehurst, Chapter 16: Environment, 244.]

Nuclear weapons were seen as a major risk to environmental health and their testing in the atmosphere, space or underwater had already been banned by most countries by 1963.[footnoteRef:6] As Shaw notes, the International Atomic Energy Agency was established in 1956 but became more prominent following Chernobyl.[footnoteRef:7] The Vienna Convention on Early Notification of a Nuclear Accident was also adopted and states were urged to notify immediately all other states...…to ensure that member nations uphold international human rights, take ownership of programs and measure for outcomes. The UN only has as much authority over member nations as those nations themselves choose to give it. In other words, the member states police themselves with respect to human rights violations, and although the UN may issues condemnations—as it has done on numerous occasions (one example being its recent condemnation of Israel’s human rights abuses with respect to Palestine)—there is no punitive effect or tool that the UN can utilize to punish offending nations. However, all that may about to change with the UN’s recent indication that “those fleeing life-threatening climate change may be entitled to protection against forcible return (non-refoulement).”[footnoteRef:11] [11: Deborah Casalin, “First UN human rights decision on climate migration—a modest step forward.” OpenGlobal Rights.]

Up to this point, the key tension with regard to international human rights and sovereignty within the Charter of the United Nations has been the ability of member states to virtually ignore chidings from the UN and pursue their own policies regardless of accusations of human rights violations. Now the UN through its Human Rights Committee and its partnership in monitoring compliance with the International Covenant on Civil and Political Rights may be about to insist on the implementation of more climate change prevention measures among member states. For just as the Trail Smelter case brought the world to attention, a recent case of climate migration in New Zealand may be about to do the same.

The UN Human Rights Committee did not rule in favor of the individual who fled his own climate distressed nation—but the fact that it did take up the case shows that it is paying attention to climate migration and that this may become a way that the UN addresses the tension with regard to international human rights and sovereignty within the Charter of the United Nations. Still, nations may not listen—and thus the tension will remain.

The International Criminal Court fits into this tension because it is an intergovernmental organization and international tribunal in the Netherlands that investigates and tries individuals…