INTRODUCTION

The 1941 Trail Smelter arbitral decision is often described as a landmark case in the development of international environmental law. Although not a case dealing with the marine environment, the same claim has been advanced in the context of the law of the sea, with the case exerting a significant impact on aspects of the development of the Law of the Sea Convention, albeit indirectly. Trail Smelter certainly informed the deliberations of delegates to the Third United Nations Conference on the Law of the Sea in the 1970s and 1980s, as well as a number of other diplomatic endeavors aimed at providing greater protection to the marine environment. Some of the principles underlying the provisions in the Convention, particularly with respect to marine pollution, clearly have their antecedents in the 1941 Trail Smelter decision. By contrast, there is a dearth of references to Trail Smelter in international cases on the law of the sea, and the development of marine environmental law seems to have occurred without direct reliance on the decision. Indeed, an argument could be made that shipping disasters such as the Torrey Canyon, Amoco Cadiz, and Exxon Valdez, as well as the emergence of the precautionary principle, have had a greater impact on the development of international marine environmental law than the 1941 Trail Smelter decision. This chapter will explore the relationship between the 1941 Trail Smelter decision and the Law of the Sea Convention and evaluate the influence it has exerted.