Principles of international environmental protection - Introduction to International Environmental Law - page 102

The Trail Smelter case only became widely known during the 1970s when
international environmental protection fi rst reached the agenda of the interna-
tional community. The sic tuo utere principle applied by the tribunal was refl ected
in the 1972 Stockholm Conference Declaration Principle 21, which the UN
International Court of Justice has endorsed as part of international law since 1996.
The positive infl uence of the Trail Smelter case in the development of inter-
national environmental law is, unfortunately, not refl ected in a prevention of
the transboundary environmental impact of the smelter itself (now run by the
Teck Cominco company). In 1999, the Colville Indian Tribes petitioned the
US Environmental Protection Agency (EPA) to examine the contamination
of the Columbia river that fl ows from Canada through the United States to
the Pacifi c Ocean. In 2003, the EPA found that there was a signifi cant amount
of contamination in the Upper Columbia (including heavy metals such as
arsenic, mercury and zinc) and ordered the company at the other side of the
border to investigate and determine the nature of the contamination at the site.
Both the liability case in the US judicial system and the requested environ-
mental conditions study in the Upper Columbia river are still pending.
Sadly, although we can congratulate the Trail Smelter arbitration tribunal on
the successful settlement of the 1941 environmental dispute and its conse-
quences for the development of international environmental law, the actual
transboundary pollution that was at the heart of the dispute is still not under
control. We could also ask whether other intergovernmental environmental
dispute decisions have made a positive contribution to environmental
protection, or simply resolved a diplomatic argument that threatened inter-
governmental relations.
No-harm principle
The sic tuo utere principle is wider today: it binds states in general to prevent
transboundary pollution (including pollution caused to areas beyond the juris-
diction of any state, which will be discussed later). This principle of no-harm
is expressed in several global environmental treaties and in the declarations of
the Stockholm (1972) and Rio (1992) UN conferences on the environment,
as follows:
States have, in accordance with the Charter of the United Nations and the
principles of international law, the sovereign right to exploit their own
resources pursuant to their own environmental (and developmental) poli-
cies, and the responsibility to ensure that activities within their jurisdiction
or control do not cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction.
The legal status of this principle was for a long time unclear, but the UN
International Court of Justice has confi rmed that it does form part of general
international law and is therefore binding on all the states of the world.