INTRODUCTION

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.