Please note that the contents are from original prescribed books and case

material and authentic sources as cited. Happy reading!

Unit:1: International Environmental Law: Cases

1.USA v.Canada (1941) (The Trail smelter case)

International law, and air and atmospheric pollution

The influence of international law on the regulation of air and atmospheric

pollution has been significant. Perhaps in recognition of the fact that many of
the problems caused by air pollution can have impacts across a large
geographical area and, in certain circumstances, cause truly global effects, there
have been a number of areas in which international law has helped to shape
policies and rules on both continental and domestic levels. In addition, the level
of cooperation on such issues is sometimes higher than in other areas, because
there is a general acceptance that there is a mutual responsibility among the
nation states of the world.1

Transboundary pollution

As the description of the development of the controls over air pollution

demonstrates, addressing local problems can often lead to a translocation of the
impacts of pollutants over large distances. The problem of transboundary harm
is not a recent phenomenon: air pollution from a Canadian smelter that
destroyed crops and forest over the border in the USA, for example, led to the
creation of a significant principle of customary international law.

Transboundar pollution and customary international law-USA v.Canada

(1941) (The Trail smelter case)

A Canadian mining company operated a large zinc and lead smelter along the
Columbia river at Trail, British Columbia. Sulphur dioxide emissions from two
large 400-foor chimneys at the smelter had damaged crops (wheat and oats),
trees used for logging, and pastures in the US state of Washington about ten
miles south of the smelter. The US government objected to the Canadian
government and the dispute went to arbitration on two occasions. The
International joint commission by the USA and Canada awarded the US

1
Stuart Bell and Donald McGillivray, Environmental Law, page n.516
government some $428,000 to compensate for damage caused to forests and
pastures, and imposed emission limits and monitoring requirements on the
smelter. In doing so it concluded 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 of the properties or persons therein, when the case is of
serious consequence and the injury is established by clear and
convincing evidence.”

 As Professor Eagleton puts while referring to Responsibility of

States in International Law, "A State owes at all times a
duty to protect other States against injurious acts by individuals
from within its jurisdiction."

2. Case Concerning the Gabcíkovo-Nagymaros Project

(Hungary/Slovakia), International Court of Justice,
Judgment of 25 September 1997 (separate opinion of
Vice-President Weeramantry) ..

The idea of nations owing obligations to all members of the

international community-that is obligations said to be owed
erga omnes ought to be especially relevant to international
environmental law. In practice, it has not been much relied
upon( although in the Gabcikovo case-Judge Weeramantry,
in a separate opinion, argued that sustainable development
and taking a precautious approach should have the same
status erga omnes, as international human rights).2

The Gabcikovo-Nagymaros case (1998) (The Danube

Dam case)3

The principle of sustainable development is an integral part

of modern international law.

(b) Environmental Protection as a Principle of

International Law

2
Stuart bell.
3
Case material.
The protection of the environment is likewise a vital part of
contemporary human rights doctrine, for it is a sine qua non
for numerous human rights such as the right to health and
the right to life itself. It is scarcely necessary to elaborate on
this, as damage to the environment can impair and
undermine al1 the human rights spoken of in the
Universal Declaration and other human rights instruments.
While, therefore, al1 peoples have the right to initiate
development projects and enjoy their benefits, there is
likewise a duty to ensure that those projects do not
significantly damage the environment.

 After the early formulations of the concept of

development, it has been recognized that
development cannot be pursued to such a point as
to result in substantial damage to the
environment within which it is to occur. Therefore,
development can only be prosecuted in harmony
with the reasonable demands of environmental
protection.
 It is thus the correct formulation of the right to
development that that right does not exist in the
absolute sense, but is relative always to its
tolerance by the environment. The right to
development as thus refined is clearly part of
modern international law. It is compendiously
referred to as sustainable development.

 The principle of sustainable development is thus a

part of modern international law by reason not
only of its inescapable logical necessity, but also
by reason of its wide and general acceptance by
the global community.
 The concept has a significant role to play in the
resolution of environmentally related disputes. The
components of the principle come from well-
established areas of international law - human
 rights, State responsibility, environmental law,
economic and industrial law, equity, territorial
sovereignty, abuse of rights, good
neighbourliness - to mention a few. It has also
been expressly incorporated into a number of
binding and far-reaching international agreements,
thus giving it binding force in the context of those
agreements. It offers an important principle for the
resolution of tensions between two established
rights. It reaffirms in the arena of international
law that there must be both development and
environmental protection, and that neither of
these rights can be neglected.

3. Case Concerning Pulp Mills on the River Uruguay

(Argentina/Uruguay), International Court of Justice,
Judgment of 20
April 2010

This judgment is a significant step forward in the ICJ’s jurisprudence on

environmental law and on shared watercourses. The Court recognized
environmental impact assessment as a practice that has become an obligation
of general international law in these situations. It further found that general
international law does not prescribe the scope or content of such
assessments. The Court has also fleshed out the definitions of a sustainable
development and an equitable and reasonable use of shared transboundary
watercourses by interpreting those terms in light of the facts of this case.4

***

Best regards, Dr.Stanzin Chostak, New Delhi, Dated:20.April

2020.

4
Available at https://www.asil.org/insights/volume/14/issue/9/pulp-mills-river-uruguay-international-court-
justice-recognizes, last visited on 20th April 2020.