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Trail Smelter The Trail Smelter case was an arbitration case between the United States and Canada

over sulfur fumes emitted by a smelter at Trail, British Columbia which were blown by prevailing winds down the Columbia River into the northern part of Washington, USA. Canada agreed to pay $350,000 in indemnification for past damages. This was the first case to rule on the content of the customary norm against transboundary harm. There were three key consensus elements established: 1. A source state may not permit the use of its territory for injurious transboundary pollution. 2. Liability will attach only if the case is of serious consequence and the injury is established by clear and convincing evidence. 3. *Liability is strict, provided the requisite causation is shown (No state has the right to cause injury by fumes in or to the territory of another or the properties or persons therein). Some say that the issue of liability was not directly before the arbitration panel, thus its statement was obiter dictum.

Pulp Mills
ARGENTINA vs. URUGUAY (PULP MILLS CASE) In this case, Argentina filed a case against Uruguay due to an alleged breach of the Statute of the River Uruguay. This Statute is a treaty signed by both parties wherein both parties had the obligation to inform each other regarding any project that would affect the river beforehand. ENCE (Spanish company) and Botnia (Finnish company) were given permission by the Uruguay government to construct a pulp mill on the river. Argentina claims that Uruguay failed to inform them of these permits and that such pulp mills will cause pollution to the River Uruguay. They also claim that Uruguay breached their obligations under the CBD and the Ramsar Convention with regards to the alleged damage to the environment which will occur due to the construction and operation of the pulp mills. On the other hand, Uruguay claims that the machinery used in the pulp mills will not harm the river and in fact, may even improve its waters. They also claim that the Statute does not require them to obtain permission from Argentina but only to inform them of the projects which they had done in conversations wherein Argentina made no objections in. The ICJ ruled that Uruguays actions were not enough to grant a provisional measure haltin g the construction of the pulp mills. Court said that there was no imminent danger of irreparable damage at the moment. Court also ruled that there was no breach of the Statute as Uruguay only had the duty to inform and negotiate with Argentina which they had done. Regarding the possible negative environmental effects to the river, the court gave much weight to the scientific data presented by the companies that their machineries would in fact not result in pollution of the river and that Uruguay had undertaken the appropriate steps to ensure that they will not harm the environment nor the populations that might be affected due to the pulp mills. Important paragraphs:

In paragraph 204, Court observed that the undertaking of an environmental impact assessment has gained so much acceptance among States that it may now be considered a requirement under general international law where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource. However, the scope and content of an EIA is not yet clear as of the moment (par. 205). In paragraph 101, the Court points out that the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory. Citing Corfu Channel case, Court reiterated that it is every States obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States. In paragraph 197, the obligation to preserve the aquatic environment, and in particular to prevent pollution by prescribing appropriate rules and measures is an obligation to act with due diligence in resp ect of all activities which take place under the jurisdiction and control of each party. It is an obligation which entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators, to safeguard the rights of the other party.

Barcelona Traction Facts: Barcelona Traction was a corporation that controlled light and power utilities in Spain and was incorporated in Toronto, (Canada). In 1948, there was an adjudication in bankruptcy in Spain of Barcelona Traction. Its object was to seek reparation for damage alleged by Belgium to have been sustained by Belgian nationals, shareholders in the company. The Belgian Government, contended that after the First World War Barcelona Traction share capital came to be very largely held by alleged Belgian nationals, but the Spanish Government, maintained that the Belgian nationality of the shareholders was not proven. Issue: Whether Belgium can bring this case in the ICJ. - No. Holding: Belgium's claim is rejected. Ratio: The Belgian government lacked the standing to exercise diplomatic protection of Belgian shareholders in a Canadian company with respect to measures taken against that company in Spain. The court ruled on the side of the Spanish, holding that only the nationality of the corporation (the Canadians) can sue. The court here thus effectively upheld the independent and separate personality of the corporation from its shareholders. The case is important for our causes as the Court here defined erga omnes obligation as those which are owed towards the international community of states as a whole. The court went on further to state under par. 34 of the decision that obligations erga omnes derive from the principles and rules concerning the basic rights of the human person. It ruled that since diplomatic protection is not an erga omnes obligation thus Belgium had no right to sue Spain on behalf of the Belgian shareholders.

Legality of Nuclear Weapons The General Assembly of the UN requested for an advisory opinion asking 'Is the threat or use of nuclear weapons in any circumstance permitted under international law?' Some states argued that any use of nuclear weapons would be unlawful by referring to various existing international treaties and instruments such as Principle 21 of the Stockholm Declaration of 1972 and Principle 2 of the Rio Declaration of 1992 which express the common conviction of the States concerned that they have a duty "to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction". These instruments and other provisions relating to the protection and safeguarding of the environment were said to apply at all times, in war as well as in peace, and it was contended that they would be violated by the use of nuclear weapons whose consequences would be widespread and would have transboundary effects. (par. 27)

The Court recognizes that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognizes that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment. (par. 29)

The Court held that under customary or conventional international law, there is neither any specific authorization nor comprehensive and universal prohibition of the threat or use of nuclear weapons.

Corfu Channel The United Kingdom of Great Britain and Northern Ireland v. The Peoples Republic of Albania FACTS: This case arose from the incident that occurred in the Corfu Channel, a body of water that separates the island of Corfu (Greek territory) from the Albanian mainland. On 22 October 1946, damage was inflicted upon H.M.S. Saumarez and Volage, in which a total of 86 British officers and men either died or were injured as those ships entered a minefield of anchored automatic mines in the Corfu Strait in an area southwest of the Bay of Saranda. The UK alleged that the mines were laid through and with the connivance and knowledge of the Albanian Government. They claim further that Albania failed, given this knowledge to warn his Majestys ships of the impending danger brought by said mines. ISSUE:

Is Albania responsible under international law for the explosion which occurred on the 22nd October in Albanian waters and for damage and loss of human life which resulted from them and is there any duty to pay compensation? HELD: YES Certain facts show they had knowledge of it: 1. Albanians attitude before and after the catastrophe 2. Possibility of observing the mine laying from the Albanian coast. From all the facts and observations, the Court drew the conclusion that the laying of the minefield could not have been accomplished without the knowledge of Albania. As regards the obligations resulting from this knowledge, they are not disputed. It was her duty to notify shipping and especially to warn the ships proceeding through the Strait on 22nd October of the danger to which they were exposed. In fact, nothing was attempted by Albania to prevent the disaster, and these grave omissions involve her international responsibility. Albania is liable to pay UK compensation. Gabcikovo Nagymaros

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