3.

The Historical Development of IEL

From The Beginnings

Instruments of international law that focus on the protection of the environment

only emerged in greater number after the end of the Second World War. The great
mass of international environmental protection norms that deserve this name was
only generated in the last 35 years. In comparison with the other fields of
international law, such as the law of armed conflict, the law of diplomatic relation,
or the law of the sea, international environmental law is thus rather young branch
of international law.

3.1The nineteenth century initiatives:

It is difficult to date the precise origins of International Environmental Law. The

nineteenth century witnessed; some significant individual initiatives traced the
impact of human activities on environment such as:

- Von Humboldt and others traced the impact of deforestation on water levels. His
study of the atmosphere provided a link between humans’ activities and the
environment. He made particularly important observations on species decline,
which provided some evidence to support regulation of hunting and fishing to
preserve species.

It was not until the late nineteenth century that communities and states began to
recognize the Transboundary consequences of activities which affected shared
rivers or which led to the destruction of wildlife, such as fur seals, in areas beyond
national jurisdiction. In the 1930s, the transboundary consequences of air pollution
were acknowledged in the litigation leading to the award of the arbitral tribunal in
the Trail Smelter case. In the 1950s, the international community legislated on
international oil pollution in the oceans. By the 1970s, the regional consequences
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of pollution and the destruction of flora and fauna were obvious, and by the late
1980s global environmental threats had been part of the international community’s
agenda as scientific evidence identified the potential consequences of ozone
depletion, climate change and loss of biodiversity1.

3.2 Early treaties and other responses:

A growing recognition that the environment existed outside national boundaries

gave rise to bilateral and regional treaties. Wildlife constituted the first major
treaty in 1900 on the conservation of the wildlife in African colonies. In 1902 the
convention to protect Birds useful to agriculture was agreed and in 1933 the
convention on the preservation of fauna and flora was adopted, this was followed
by 1979 Bern convention and in 1992 the biodiversity convention. These illustrate
how treaty agreements act almost like building blocks, with further agreements
building on initial arrangements2.

1
SANDS, Philip, Principles of International Environmental Law (2003). p 4
2
McEldowney ,John& Sharron, Environmental Law , Longman/Pearson Education Limited,2010,UK,

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3.3 Trail Smelter Arbitration 1938

Source of image https://upload.wikimedia.org/wikipedia/commons/2/20/Trail_Smelter_in_Year_1929.png

In the early stages of international environmental law namely on 11 march 1941,

the famous international tribunal award in the Trail smelter case was rendered
proved to be a milestone for the future development of Transboundary
environmental protection. The first legal case that set the stage to use international
law in the resolution of environmental disputes between nations was the trail
smelter case.

(i) Background

The dispute arose as a result of damage occurring in the territory of the US due to
activity of a smelter situated in Canada. The damage arose from sulphur dioxide
fumes which were emitted from the smelter. It was claimed that the height of

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stacks increased the area of damage in the US. In 1927 the US proposed that the
matter be referred to the International Joint Commission for investigation. Its
report was presented in 1931. It determined that up to 1 January 1932 the damages
incurred by the US should be compensated in the sum of US $350,000. Two years
after this Report the US indicated to Canada that damage was still occurring and
negotiations were renewed leading to the signing of the Convention for settlement.

The case commenced with a special agreement referred to as the Convention for
settlement of difficulties arising from operation of smelter at Trail, B.C., signed
between the US and Canada on 15 April 1935. In Articles II and III of the
Convention the parties agree to constitute a tribunal to decide:

(a) whether damage caused by the Trail Smelter has occurred since 1 January 1932,
and if so, what indemnity should be paid therefore?
(b) if so, whether the Trail Smelter should be required to refrain from causing
damage in the future and, if so, to what extent?
(c) if so, what measures or regime should be adopted or maintained by the Trail
Smelter?
(d) what compensation should be paid on account of any decisions rendered by the
Tribunal?
Article IV provided that the Tribunal was to apply the law and practice followed in
the USA as well as international law and practice.

(ii) The Award

On 16 April 1938, the Tribunal gave its decision in the first and fourth questions. It
found that damage had been caused in US territory by the Trail Smelter since 1
January 1932 up to 1 October 1937 and that the indemnity to be paid for the
damage was US $78,000 as the complete and final indemnity and compensation for
all damage, which occurred between such dates. The Tribunal postponed a final
decision on the remaining questions and on the existence of damage, if any, and the
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indemnity to be paid occurring after 1 October 1937 to a later date to enable further
studies to be conducted to determine an appropriate regime to be set up.

On 11 March 1941, the Tribunal gave its final decision on the remaining questions.
The Tribunal needed to determine whether the Trail Smelter should be required to
refrain from causing damage in the US in the future. It observed that no case of air
or water pollution dealt with by an international tribunal had been brought to its
attention. It therefore would rely on decisions of the Supreme Court of the United
States that could be taken as a guide in the field of international law in so far as
they had dealt with controversies between the various federal states of the US.

The Tribunal held that these decisions provided an adequate basis for holding that
under the principles of international law, as well as the law of the United States, no
State has the right to use or permit the use of its territory in such a manner as to
cause injury by fumes in or to the territory of another or the properties or persons
therein, when the case is of serious consequence and the injury is established by
clear and convincing evidence.

The Tribunal found therefore that Canada was responsible in international law for
the conduct of the Trail Smelter. It had a duty to see to it that conduct was in
conformity with Canada’s obligations under international law. Accordingly, the
Trail smelter would be required to refrain from causing any damage through fumes
in the US. The Tribunal decided, finally, that, to prevent future damage, a regime
of control, which it stipulated, would be applied to the operations of the Smelter.
The tribunal decided that Canada had to pay the United States for damages, and
further that it was obliged to abate the pollution.

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This was the first decision to recognize international liability for cross-border
air pollution caused to another nation, even when no existing treaty created an
obligation to prevent such damage.

The Trail Smelter decision has shaped the core principle underlying international
environmental law. According to this principle, a country, which creates
Transboundary pollution or some other environmentally hazardous effect, is
liable for the harm this causes, either directly or indirectly, to another country.
It has the obligation to protect other States from the injurious acts of
individuals and corporations within its borders. The arbitral award rendered in
the Trail smelter case has turned out to be an important precedent for the
development of the principle of limited territorial sovereignty and integrity and
state liability.

3.4 The United Nations and Environment:

The United Nations and its agencies have helped to develop an institutional and
regulatory approach to environmental problems using international law. Although
UN charter does not mention the environment, it has provided related activities
through international agencies such as food and agriculture organization (FAO), the
chief responsibility for this in fact has fallen on the general agreement on Tariffs
and Trade (GATT). The GATT addresses not only issues of free trade but also,
crucially, the issue of conserving exhaustible natural resources. This theme of
conservation was taken up by the UN conference on the conservation and
Utilization of resources (UNCCUR) in 1949. One of the outcomes of UNCCUR
was the gradual development of a system of international law aimed at the


for further reading on the Smelter case see :KERKHOF,Martijin van de, The trail Smelter case Re-examined:
Examining the Development of National Procedural Mechanisms to Resolve a Trail Smelter Type Dispute,
MERKOURIOS,Utrecht Journal of International and European Law,vol.27/issue73,2011,pp68-83.

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protection of the environment. Conservation conferences soon followed the most
notable was the conservation on the law of the sea in 1954.

A conference on the atmosphere was held a year later, which attempted to address
the issue of nuclear testing. The 1956 Test Ban treaties were ultimately signed in
1963.

In 1971 the Ramsar convention (the convention on Wetlands of international

Importance, especially as waterfowl habitat) was an important milestone in
international environmental protection. It was the first environmental treaty to
require protection and management of a particular type of ecosystem i.e wetland
based on named sites worldwide. In the 1970s, the environment did truly emerge as
important issue, and international environmental law as a specialized subject of
international law.

3.5 First international meeting: The Stockholm conference 1972:

The great leap forward in environmental law came in 1968 when on the initiative
of the Swedish Government the UN General Assembly adopted resolution 2398 of
3 December 1968 convening a United Nations Conference on the Human
Environment noting the “continuing and accelerating harm of the quality of the
human environment” and its “consequent effects on the condition of man, his
physical, mental and social well-being, his dignity and his enjoyment of basic
human rights, in developing as well as developed countries.” The resolution also
recognized that “the relationship between man and his environment is undergoing
profound changes in the wake of modern scientific and technological
developments”.3

3
http://www.un.org/Depts/dhl/resguide/specenv.htm .more on this conference see documentary : 1972 United
Nations Conference on the Human Environment (Part 1) = =YouTube&1972 United Nations Conference on the
Human Environment (Part 2) – YouTube.

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3.6 The second international meeting: Rio conference 1992 and its outcomes:

The United Nations Conference on Environment and Development (UNCED),

which took place in Rio de Janeiro from 3 to 14 June 1992, led to the establishment
of the Commission on Sustainable Development. At the Conference three major
agreements were adopted:
- Agenda 21 a global plan of action to promote sustainable development;
-The Rio Declaration on Environment and Development, a series of principles
defining the rights and responsibilities of States and the Statement of Forest
Principles, a set of principles to support the sustainable management of forests
worldwide.
- In addition, two legally binding instruments were opened for signature: the
United Nations Framework Convention on Climate Change and the Convention on
Biological Diversity.