The Trail Smelter Case Re-examined: Examining the Development of National Procedural Mechanisms to Resolve a Trail Smelter Type Dispute

Martijn Kerkhof, Van De

doi:10.5334/ujiel.ar

Abstract

This article re-examines the iconic Trail Smelter dispute. The article discusses the way a modern day Trail Smelter type dispute would be dealt with in the current time. The article examines the opportunities of resolving such a dispute using national mechanisms. Consequently, the United States and Canadian courts are examined in terms of their applicability to a modern day Trail Smelter type dispute. The classic obstacles that prevented access to these courts in the original Trail Smelter dispute are described, subsequently the current status of these obstacles is assessed. The evaluation indicates that the national mechanisms to deal with a Trail Smelter type dispute have gone through a pro- nounced development. Whereas Canadian courts are still reluctant to exercise their jurisdiction extraterritorially, recent legislation seems to indicate that in the present day a Trail Smelter dispute could potentially fall within the jurisdiction of a United States court. Overall the thesis indicates that national mechanisms have started to fill the void that is left by the lack of decisive action that can be taken using international mechanisms. The current situation shows an increasing willingness to provide opportunities for resolving transboundary disputes at the private party level.

Highlights

To study international environmental law without being confronted with the Trail Smelter case is like studying literature without ever coming across the works of William Shakespeare
The United States and Canadian courts are examined in terms of their applicability to a modern day Trail Smelter type dispute
The evaluation indicates that the national mechanisms to deal with a Trail Smelter type dispute have gone through a pronounced development

Summary

Introduction

A dispute that originated between two private parties ‘(...) quickly escalated to the highest levels of the Canadian and US government’.5 These governments in turn granted binding decision making power to an ad-hoc tribunal. In taking the Trail Smelter dispute as an anchor to compare the availability of access to national courts at the time of the dispute and today, it becomes possible to concretely determine relevant changes and developments. For this comparison to be accurate it is vital to accurately determine the steps that were taken in the classic Trail Smelter dispute to turn a dispute between private parties into an international issue.

The procedural progression of the original Trail Smelter dispute

III.1. Introduction

III.2. United States court

III.3. Canadian court

Conclusion