Trail Smelter and the International Law Commission's Work on State Responsibility for Internationally Wrongful Acts and State Liability

Abstract

In 2001, the International Law Commission (ILC) adopted Draft Articles on State Responsibility. These establish the secondary obligations that flow from a breach of an independent and preexisting primary obligation. The Draft Articles address a number of issues, including the attribution of conduct to a state, justifications for breach, circumstances precluding wrongfulness, reparation, compensation, bilateral and erga omnes obligations, and countermeasures. This Essay tracks the influence that the Canada-U.S. Trail Smelter arbitral decision has had on the Draft Articles. Trail Smelter is referenced four times in the Commentaries to the Draft Articles; it has played some part in the formulation of specific Articles regarding continuing breach, non repetition of breach, remoteness of harm, and compensation. On a more general note, though, Trail Smelter's influence may be circumscribed by shifts in international environmental law toward facilitating compliance with primary rules rather than seeking compensation for breaches of those rules. This explains why Trail Smelter's evocation of secondary obligations - and the law of state responsibility more generally - lead somewhat of a lonely existence in terms of the law-in-practice regarding international environmental protection. Trail Smelter has played a more vivid role in the ILC's work on state liability (2001), in particular the preventative aspects. Here, the primary rule of Trail Smelter - namely the obligation not to cause serious environmental harm - has acquired considerable currency, exceeding that of Trail Smelter's secondary obligation of reparation and compensation for violation of that primary rule.