INTRODUCTION

The substantive principles of international law for which the Trail Smelter arbitration has come to serve as shorthand are widely viewed as the foundation stones on which all international environmental law is constructed. Such expansive, almost mythological claims for the Trail Smelter case have, in due course, invited severe criticism. Still, the Trail Smelter principles persist in international instruments, casebooks, and scholarly footnotes, as the “locus classicus” of international environmental law. So it is not at all surprising that one need only scratch the surface to find trace elements of these Trail Smelter principles in the global climate change regime, where they make their most conspicuous appearance in the preamble to the United Nations Framework Convention on Climate Change (UNFCCC).

Critics challenging the doctrinal significance of the Trail Smelter arbitration rightly warn against making too much of such manifestations of the Trail Smelter principles. Indeed, Trail probably had very little influence on the substantive norms forming the global climate change regime. But, as John Wirth noted in Smelter Smoke in North America, the Trail Smelter arbitration is about much more than the heavily debated principles of limited territorial sovereignty and polluter liability. “The main issues of the case,” Wirth complained, “have been otherwise ignored or obscured by the conventional wisdom about Trail's [doctrinal] significance.” Several facets of the Trail Smelter arbitration, beyond the eponymous principles, suggest surprising and important links between Trail, the global climate change regime, and international environmental law in general.