Trail Smelter, Chernobyl, and the Evolution of International Environmental Law

Introduction: Two Landmark Episodes in Environmental Law

Both the Trail Smelter and the Chernobyl episodes greatly affected the evolution of international environmental law. The smelting operation at the Consolidated Mining and Smelting Company in Trail, British Columbia, caused damages across the border in Washington State. An arbitration settlement resulted in Canada agreeing to pay the United States $350,000 for damages accrued from smelter fumes prior to 1932.¹ With Chernobyl a half-century later, the nuclear reactor meltdown and its fallout damaged the environment in Belarus, Ukraine, and Russia, as well as several other European states.

Three consequences from these two episodes shaped the new regime of international environmental law: (1) they established the Harm Principle, which (2) shifted toward regime responsibility by the end of the twentieth century, ultimately resulting in (3) the establishment of climate justice at the Paris Agreement of 2015. Each of these consequences can be seen in concrete ways, particularly with regard to regime responsibility.

The Kyoto Protocol entered into force in February 2005, with 156 state parties signing on, including Canada, the EU states, China, and India — though the United States refrained. The regime of greenhouse emissions and climate change was implemented with legally binding targets pegged to 1990 levels, with penalties for failing to reach those targets. Developed nations were to achieve a 5% reduction of greenhouse gases during 2008–12 through the implementation of "carbon sinks" and credit schemes, while least-developed countries (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 organizations, and regional bodies into the process and establishing a fund for equity and the principle of the common good — what has come to be called climate justice. Formal national plans are to be filed, with nations implementing a 1.5–2°C emission cap and making transparency a norm by 2023.

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 among states was that they held a sovereign right to use their own resources as they saw fit, without regard for the negative effects such use might have on neighboring states. 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 own borders. This was the beginning of the Harm Principle in environmental law. The Harm Principle has since been echoed in various declarations over time, including the Stockholm, Rio, Kyoto, and Paris Declarations.² The Chernobyl disaster in the 1980s would play a major role in further evolving the international community's position on environmental law.

The fallout from the Chernobyl nuclear disaster was so severe that even well into the twenty-first century, members of the international community continue to suffer its effects. For instance, farmers in Wales have been dealing with semi-permanent restrictions on the sale of lamb products due to 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 thousands of miles away.³

Chernobyl and the Shift to Regime Responsibility

Several treaties had been signed at the international level prior to the Chernobyl disaster, but none proved sufficient to deal with such an environmental catastrophe.⁴ Nuclear weapons had already been recognized as a major risk to environmental health, and their testing in the atmosphere, space, or underwater had been banned by most countries by 1963.⁵ As Shaw notes, the International Atomic Energy Agency was established in 1956 but became far more prominent following Chernobyl.⁶ The Vienna Convention on Early Notification of a Nuclear Accident was also adopted, urging states to notify all other states immediately in the event of a nuclear disaster.

Overall, the fallout from Chernobyl was sufficient to redirect international environmental law toward the adoption of regime responsibility. As a result, the international community moved "away from the classic state responsibility approach to damage caused towards a regime of international co-operation."⁷

Today, climate justice is the central issue upon which nations around the world tend to agree. This was the focus of the Paris Agreement of 2015. Regime compliance is the new norm in terms of pursuing climate justice. States have been encouraged to establish time frames in which they will reduce their carbon footprints or implement policies aimed at net-zero emissions.

Conclusion

The major effects of the Trail Smelter incident and Chernobyl unfolded in three stages. First, the Trail Smelter case raised international awareness of the Harm Principle, establishing that states must consider the impact of their activities on neighboring nations or be held liable for the costs of pollution-caused damages. Second, these episodes changed the way nations conceived of responsibility, with states moving from a state responsibility approach to a regime responsibility approach. Finally, the evolution of environmental awareness has led to the issue of climate justice and the imperative for nations to commit themselves to combating climate change — much as the international community once mobilized against other global threats. The trajectory from a smelting operation on the US–Canada border to the Paris Agreement reflects a profound transformation in how the world governs environmental harm.