Sovereignty's Continuing Importance: Traces of Trail Smelter in the International Law Governing Hazardous Waste Transport

Abstract

The Trail Smelter arbitration occupies an ambiguous place in history. Many commentators argue that the Trail Smelter arbitration has limited modern applicability because many of the world's environmental problems no longer fit into the Trail Smelter's traditional conception of transboundary pollution. States and other actors have turned away from resolving environmental disputes through adjudication, and instead have created elaborate regulatory regimes designed to address environmental concerns. The troubling aspects of the Trail Smelter arbitration, which appear to endorse a right to pollute, have been forgotten. For many commentators then, the basic teachings of the Trail Smelter arbitration are of marginal relevance to modern international environmental law. But these commentators underestimate the Trail Smelter arbitration's continuing importance: at least in-so-far as the case reflects how solutions to international environmental problems are tied to preserving state sovereignty. Notwithstanding its development and growing importance, international environmental law has, in many ways, departed little from the basic legal principles that were articulated in the Trail Smelter arbitration. One poignant example, on which this Chapter focuses, is the international law governing the transboundary movement and disposal of hazardous waste. Although that law is certainly different, both substantively and procedurally, from the rules applied in the Trail Smelter arbitration, the principles framing the international law regulating the transportation of hazardous waste reflect the Trail Smelter's legacy and show how its notion of state sovereignty, for good or bad, continues to be important. While the Trail Smelter arbitration and the international hazardous waste laws both demonstrate a continuing recognition of the importance of territorial integrity, they also reveal the willingness of states to transfer some control to the international system to paradoxically protect sovereignty. This essay explores the influences the Trail Smelter arbitration has had on the international law governing hazardous waste transport (i.e. the Basel Convention). It will appear as a chapter in TRANSBOUNDARY HARMS IN INTERNATIONAL LAW: LESSONS FROM THE TRAIL SMELTER ARBITRATION (Rebecca Bratspies & Russell Miller eds., forthcoming).