THE TRAIL SMELTER ARBITRATION (US V CANDA)

16 April 1938 & 11 March 1941

Sovereignty, Principles Governing Jurisdiction, Territoriality Principle

FACTS:
In 1906, the Consolidated Mining and Smelting Company of Canada, obtained a
charter of incorporation from the Canadian authorities and later acquired a smelter plant
at the locality know as Trail. Since that time, the Canadian Company, without
interruption, has operated the Smelter. Damage occurred in the State of Washington,
resulting from the sulphur dioxide emitted from the Trail Smelter.
In December 1927, US proposed to Canada that problems growing out of the
operation of the Smelter at Trail should be referred to the International Joint
Commission for investigation and report. On February 28, 1931, in their Report, the
Commission determined the amount of damages to be paid to US. Two years after the
signing of the Report, the US made representations to the Canadian Government that
existing conditions were entirely unsatisfactory, and that damage was still occurring.

ISSUE:
W/N the Trail Smelter should be required to refrain from causing damage in the
State of Washington in the future

HELD:
YES. In reaching its conclusions as regards this question, the Tribunal has given
consideration to the desire of the high contracting parties "to reach a solution just to all
parties concerned".
As Professor Eagleton puts in (Responsibility of States in International Law,
1928, p. 80) : "A State owes at all times a duty to protect other States against injurious
acts by individuals from within its jurisdiction."
In a similar case between Cantons of Soleure and Argocia, the Federal Court of
Switzerland held that “this right (sovereignty) excludes.... not only the usurpation and
exercise of sovereign rights (of another State) . . . . but also an actual encroachment
which might prejudice the natural use of the territory and the free movement of its
inhabitants.”
Under the principles of international law, 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.
Considering the circumstances of the case, the Tribunal holds that the Dominion
of Canada is responsible in international law for the conduct of the Trail Smelter. It is,
therefore, the duty of the Government of the Dominion of Canada to see to it that this
conduct should be in conformity with the obligation of the Dominion under international
law as herein determined.