Trail Smelter Arbitration (United States v.

Canada)
Brief Fact Summary. The United States (P) sought damages from Canada by suing them to court and also prayed for an
injunction for air pollution in the state of Washington, by the Trail Smelter, a Canadian corporation which is domiciled in
Canada (D).
Synopsis of Rule of Law. The duty to protect other states against harmful acts by individuals from within its jurisdiction
at all times is the responsibility of a state.
Facts. The Tail Smelter located in British Columbia since 1906, was owned and operated by a Canadian corporation. The
resultant effect of from the sulfur dioxide from Trail Smelter resulted in the damage of the state of Washington between
1925 and 1937. This led to the United States (P) suit against the Canada (D) with an injunction against further air
pollution by Trail Smelter.
Issue. Is it the responsibility of the State to protect to protect other states against harmful acts by individuals from within
its jurisdiction at all times?
Held. Yes. It is the responsibility of the State to protect other states against harmful act by individuals from within its
jurisdiction at all times. No state has the right to use or permit the use of the territory in a manner as to cause injury
by fumes in or to the territory of another or the properties or persons therein as stipulated under the United States
(P) laws and the principles of international law.
By looking at the facts contained in this case, the arbitration held that Canada (D) is responsible in international law for
the conduct of the Trail Smelter Company. Hence, the onus lies on the Canadian government (D) to see to it that Trail
Smelter’s conduct should be in line with the obligations of Canada (D) as it has been confirmed by International law. The
Trail Smelter Company will therefore be required from causing any damage through fumes as long as the present
conditions of air pollution exist in Washington.  So, in pursuant of the Article III of the convention existing between the
two nations, the indemnity for damages should be determined by both governments. Finally, a regime or measure of
control shall be applied to the operations of the smelter since it is probable in the opinion of the tribunal that damage may
occur in the future from the operations of the smelter unless they are curtailed.
Discussion. Responsibility for pollution of the sea or the existence of a duty to desist from polluting the sea has never
been laid at the feet of any country by any international tribunal. Although regulation of pollution is just commencing, it
must ensure that there is equilibrium against freedom of the seas guaranteed under general and long established rules of
international law.

Trail Smelter arbitration between Canada and the United States, which was initiated in 1926 and finally concluded in
1941. This decision is usually referred to for the basic legal proposition that no state may knowingly allow its
territory to be used in a manner that would cause serious physical injury to the environment of another state.
Decisions Analysis
            This case was truly a landmark case in term of international law. Never before had there been decision a by the
World Court or any other international justice system regarding an instance so remote and localized (Bratspies, 2006). The
Tribunal attempted at finding a balanced solution. The smelter was able to continue operations and the farmers were no
longer harmed by the smoke and received appropriate compensation. Sovereignty was the general goal which is illustrated
in the language of the decision. The final decision of the Tribunal held that the Dominion of Canada is responsible in
international law for the actions of the smelter (Trail Smelter Arbitration, 1941).  The Tribunal declared that “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” (Trail Smelter Arbitration, 1941,
emphasis mine). These are the famed words of the Trail smelter arbitration and sum up the relevance of this case. A state
can pollute its own land as much as it wants as long as it abides by law. Once that pollution crosses an international
boundary though, and is of serious consequence, the state has violated the sovereignty principle of international law.
The pollution must be of serious consequence, indicating that the court must identify whether or not the pollution in
question is inhibiting an individual or group to live in a healthy and prosperous manner. Whether or not the smelter smoke
was dangerous for the health of the individual farmers was never discussed in this case. The Tribunal focused on the
extent of the economic loss due to the noxious smoke in order to identify whether or not it was of “serious consequence.”
The Tribunal established that the injury to cleared and uncleared lands was serious enough to warrant compensation. It did
not find that the damage on livestock and the property in the town of Northport was serious enough to be compensated
for. What can be taken away from this is that proving damage was caused by the pollutant is not enough. It must be
proved that the damage is serious. The definition a court gives to “serious” is arbitrary and depends on the circumstances
and the court.
It should be stated that the decision of the court was not meant to impose legally binding obligations on both parties. The
decisions reflect an aspiration, or a principle of the international justice system. There are two principles that are often
discussed in light of this case. The first was established in the provision above, that a state has an obligation to prevent
transboundary harm. The second is referred to as the polluter pays principle. The Tribunal used previous United States
Supreme Court decisions to help decide what route to take in deciding this case. The Tribunal used the principle set up in
United States Supreme Court in Story Parchment Company v. Paterson Parchment Paper Company (1931) that relief must
be provided for the injured person and accountability to the wrongdoer. Furthermore in the absence of certainty it is just
for Juries to act on reasonable inference as well as direct proof (Trail Smelter Arbitration, 1938). In terms of the Trail
Smelter arbitration the relief that must be provided came in the form of monetary compensation. In order to establish
justice for the farmers Consolidated was made to pay for the serious damage it had done to the farmers land. Hence the
principle was established that the polluter pays. The Tribunal put an incredible emphasis on researching and finding a
regime to place Consolidated on that would limit the damage it was causing to the farmers land. The Tribunal never
considered shutting Consolidated. Shutting down the Trail smelter would supposedly have detrimental effects on
Canada’s economy due to the enormous revenue the smelter provided. Forcing the smelter to shut down operations, even
for the time period between decisions, was not the intent of the Tribunal. Rather its notion of justice was finding a way for
the smelter to continue operations while remedying the wrong it had done to the farmers.
This remedy came in two forms, each of which put the financial burden on Consolidated and Canada, the polluters. The
first remedy was direct monetary compensation to the farmers. The second remedy was changing the way operations took
place at the smelter to reduce the amount of harmful chemicals emitted during processing. This regime was incredibly
costly to the smelter, amounting to around $20 million. The Tribunal was effectively placing blame and costs on the
smelter without shutting it down. For the purpose of what the Tribunal considered a fair and balanced approach to
resolving this conflict it did not seek to end the pollution. Its goal was to diminish the injury the pollution was causing
through regulatory methods. It can be argued that this was a shortcoming of the decision because it established a paradigm
of allowing a company to pollute as long as it paid the price. It could also be argued as an appropriate and fair decision
because it preserved economic interests while ending the problem that had been presented.               
Conclusion
            The farmers of Northport probably had no idea that they were making history. What started as a grassroots effort
to rid the area of noxious smoke ended in a case cited directly or indirectly in countless environmental law cases. Those
involved in the case were not trying to make history. The farmers were merely seeking compensation for what they saw as
a violation of their rights. The wrongdoer, Consolidated Mining and Smelting Limited, were definitely not trying to make
history. Consolidated was doing everything they could to squash the issue and keep it as low key and local as possible.
Due to the geographic nature of the dispute these goals were not possible and history was effectively made as the dispute
went into the hands of international law institutions. The results of this case are pivotal to international environmental law.
This case put into words the unspoken notion of transboundary harm and a nation’s obligation to do everything they can
to prevent it. Furthermore, the results of this dispute put definitive blame on the polluter and established that the
punishment would be whatever payment is necessary to remedy the harm.
Work Cited