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Fisheries are in trouble. For decades, there have been warnings that fish harvests have reached or exceeded sustainable limits and that collapse of capture fisheries might be imminent. Recent evidence has overwhelmingly confirmed these dire predictions (Pauly et al. 1997; Pauly and Maclean 2003). Despite increased fishing effort and more effective equipment, total catch levels have remained stable or decreased every year since the mid 1990s (Vannuccini 2003). Dismal as this total catch statistic might be, it unfortunately paints a deceptively rosy picture. Ever-increasing inputs of money and technology are required to merely tread water – a constant total catch under these circumstances means a diminished return per unit of fishing effort. Moreover, looking only at tonnes of fish caught (the typical representation of total catch) masks the dramatic shifts that have taken place in the species making up that total catch (Garcia and Newton 1997). Increasing catches of low-value species (so-called “trash fish”) obscures the decline in almost every high-value demersal fishery and the profound impact that changing fish populations have had on the aquatic food web.
At the same time that fishers are expending more effort to catch fewer and less valuable fish, demand for fish is increasing at a rapid pace. The human population grows year by year, and food security continues to lag behind.
Although almost every discussion of state responsibility begins with its talismanic invocation, time has not been kind to the Trail Smelter arbitration. Its primary contributions to international law have been the statement that: “no State has the right to use or permit the use of its territory in such a manner as to cause [environmental] injury … in or to the territory of another,” and its requirement that Canada pay the United States compensation for damages. Although these Trail Smelter principles have become customary international environmental law, the arbitration itself is often viewed as a quaint remnant of a bygone world. As Mark Drumbl succinctly explains, many scholars view Trail Smelter's marginalization as inevitable in light of international law's evolution from a state-to-state realm to one of multilateral, consensus-based actions. Others have suggested that the arbitration's impact is blunted by the fact that harm was not contested before the Tribunal. This unique combination of characteristics leads many to conclude that Trail Smelter has little relevance for resolving the thorny transboundary environmental challenges that beset our ever-globalizing world.
I think the case has much to teach modern international environmental law, but for somewhat unconventional reasons. In the context of global warming, Russell Miller points out that the arbitration offers some procedural lessons as well as its famous Trail Smelter principles. This chapter explores one of the arbitration's least considered facets – the decisional process itself.
This book reveals the many harms which flow across the ever-more porous sovereign borders of a globalising world. These harms expose weaknesses in the international legal regime built on sovereignty of nation states. Using the Trail Smelter Arbitration, one of the most cited cases in international environmental law, this book explores the changing nature of state responses to transboundary harm. Taking a critical approach, the book examines the arbitration's influence on international law generally, and international environmental law specifically. In particular, the book explores whether there are lessons from Trail Smelter that are useful for resolving transboundary challenges confronting the international community. The book collects the commentary of a distinguished set of international law scholars who consider the history of the Trail Smelter arbitration, its significance for international environmental law, its broader relationship to international law, and its resonance in fields beyond the environment.