Book contents
- Frontmatter
- Contents
- Contributors
- Acknowledgments
- Foreword by David D. Caron
- TRANSBOUNDARY HARM IN INTERNATIONAL LAW
- Introduction
- PART ONE THE TRAIL SMELTER ARBITRATION – HISTORY, LEGACY, AND REVIVAL
- PART TWO TRAIL SMELTER AND CONTEMPORARY TRANSBOUNDARY HARM – THE ENVIRONMENT
- 11 Trail Smelter in Contemporary International Environmental Law: Its Relevance in the Nuclear Energy Context
- 12 Through the Looking Glass: Sustainable Development and Other Emerging Concepts of International Environmental Law in the Gabčikovo-Nagymaros Case and the Trail Smelter Arbitration
- 13 Trail Smelter's (Semi) Precautionary Legacy
- 14 Surprising Parallels between Trail Smelter and the Global Climate Change Regime
- 15 Sovereignty's Continuing Importance: Traces of Trail Smelter in the International Law Governing Hazardous Waste Transport
- 16 The Legacy of Trail Smelter in the Field of Transboundary Air Pollution
- 17 The Impact of the Trail Smelter Arbitration on the Law of the Sea
- PART THREE TRAIL SMELTER AND CONTEMPORARY TRANSBOUNDARY HARM – BEYOND THE ENVIRONMENT
- Annex A Convention Between the United States of America and the Dominion of Canada Relative to the Establishment of a Tribunal to Decide Questions of Indemnity and Future Regime Arising from the Operation of Smelter at Trail, British Columbia
- Annex B Trail Smelter Arbitral Tribunal Decision, April 16, 1938
- Annex C Trail Smelter Arbitral Tribunal March 11, 1941, Decision
- Index
11 - Trail Smelter in Contemporary International Environmental Law: Its Relevance in the Nuclear Energy Context
Published online by Cambridge University Press: 08 September 2009
- Frontmatter
- Contents
- Contributors
- Acknowledgments
- Foreword by David D. Caron
- TRANSBOUNDARY HARM IN INTERNATIONAL LAW
- Introduction
- PART ONE THE TRAIL SMELTER ARBITRATION – HISTORY, LEGACY, AND REVIVAL
- PART TWO TRAIL SMELTER AND CONTEMPORARY TRANSBOUNDARY HARM – THE ENVIRONMENT
- 11 Trail Smelter in Contemporary International Environmental Law: Its Relevance in the Nuclear Energy Context
- 12 Through the Looking Glass: Sustainable Development and Other Emerging Concepts of International Environmental Law in the Gabčikovo-Nagymaros Case and the Trail Smelter Arbitration
- 13 Trail Smelter's (Semi) Precautionary Legacy
- 14 Surprising Parallels between Trail Smelter and the Global Climate Change Regime
- 15 Sovereignty's Continuing Importance: Traces of Trail Smelter in the International Law Governing Hazardous Waste Transport
- 16 The Legacy of Trail Smelter in the Field of Transboundary Air Pollution
- 17 The Impact of the Trail Smelter Arbitration on the Law of the Sea
- PART THREE TRAIL SMELTER AND CONTEMPORARY TRANSBOUNDARY HARM – BEYOND THE ENVIRONMENT
- Annex A Convention Between the United States of America and the Dominion of Canada Relative to the Establishment of a Tribunal to Decide Questions of Indemnity and Future Regime Arising from the Operation of Smelter at Trail, British Columbia
- Annex B Trail Smelter Arbitral Tribunal Decision, April 16, 1938
- Annex C Trail Smelter Arbitral Tribunal March 11, 1941, Decision
- Index
Summary
INTRODUCTION
Although the Trail Smelter arbitration has often and justifiably been referred to as the fons et origo of international law on transboundary environmental harm and has over the years attracted considerable attention in the literature, significant differences of opinion, as well as basic misperceptions continue to exist among commentators and experts with respect of the arbitration's true international legal import. Critical views range from outright dismissals of Trail Smelter as of “limited precedential value,” to the belief that, while Trail Smelter recognizes international liability for transboundary damage, it does not impose an obligation to prevent such damage. Similarly, the fact that the Tribunal took a nuanced approach in assessing Canada's liability – setting out the grounds for both a due diligence-based and strict liability argument – appears often to have gone unnoticed. This collection of essays, which seeks to assess for the first time the overall legacy of Trail Smelter and in this process to redress some of the underappreciation of the arbitration's scope and complexity, is thus particularly welcome and relevant.
This paper will not seek to track all the various strands of the Trail Smelter arbitration that have had a discernible impact on the evolution of international environmental law. Rather, its objective is necessarily more modest. Given the assigned topic – the relevance and applicability of Trail Smelter in the context of nuclear energy – this chapter will focus on Trail Smelter's most relevant implication for nuclear power-related activities: a state's obligation to prevent or minimize the risk of transboundary harm.
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- Chapter
- Information
- Transboundary Harm in International LawLessons from the Trail Smelter Arbitration, pp. 125 - 139Publisher: Cambridge University PressPrint publication year: 2006
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