2.

Trail smelter (US vs Canada)

Facts:

 The Trail Smelter is located in Trail, British Columbia, Canada in the south-western corner of the Kootenays, which
is known as a mineral-rich area. The heavily mineralized region of the northwestern corner of British Columbia
was a prime spot for the smelting of lead and zinc ores.
o This process emits pollutants in the form of smoke, particulate matter, and slag. Sulfur dioxide and
particulate matter from the metals were the main constituents of the smelter smoke produced at Trail.
 The Trail Smelter operation grew, adding other local mines to the portfolio.
 When completed in 1895, the smelter could process 250 tons of ore daily and had smoke stacks 150 feet high to
help disperse the fumes. By 1916 the Trail Smelter was producing monthly outputs of 4,700 tons of Sulphur, but
with post World War I expansion and technological improvements to the smelting process, the company doubled
the smelter's output throughout the 1920s and was producing 10,000 tons monthly by 1930.
 As a direct consequence of the local dispute and arbitration, Consolidated Mining and Smelting Company looked
for ways to reduce the smelter's smoke output while increasing the smelter's production. The initial solution
involved increasing the height of the smoke stacks to 409 feet in 1926 in an effort to disperse the smelter's smoke
by pushing it higher into the atmosphere, but this local solution proved to be a problem for their Washington
neighbors.
 The subject of fumigations and damage claimed to result from them was first taken up officially by the Government of the
United States in June 1927, in a communication from the Consul General of the United States at Ottawa, addressed to the
Government of the Dominion of Canada.
 Following an extensive correspondence between the two Governments, they joined in a reference of the matter to that
Commission (International Joint Commission) under date of August 7, 1928.
 The commission said that Canada is liable for 350,000 USD for the damage caused by the Trail Smelter.
 2 years after, existing conditions were unsatisfactory and that damage was still occurring resulting to the formation of
Convention for Settlement of Difficulties arising from operation of Smelter at Train. Said convention mandated the
formation of a tribunal and to decide on 4 questions posted by US and Canada.

Issue: (relevant issue) whether the Trail Smelter should be required to refrain from causing damage in the State of
Washington in the future and, if so, to what extent?

Ratio: 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."

International Tribunals have not dealt with cases of air pollution. However, US Court decisions have dealt with the same
and the tribunal treated them as sufficient guidepost. Said jurisprudence declare that the petitioner should present
evidence that the damage caused must be of serious magnitude before the courts may allow injunction to issue against
another state. What the SC says there of its power under the Constitution equally applies to the extraordinary power
granted This tribunal under the Convention. What is true between States of the Union is, at least, equally true concerning
the relations between the US and Dominion of Canada.

Using said jurisprudence as basis, the Tribunal finds 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 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 Train Smelter. Apart from the undertaking in the Convention, 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. The Tribunal held that “so long as the present conditions in the
Columbia River Valley prevail, the Trail Smelter shall be required to refrain from causing any damage through fumes in
the State of Washington.”

NOTE: Smelting is the process of heating an ore (a grouping of minerals) and chemically extracting the metal in order to
reprocess it into products like rods, sheets, wires, etc. (Brennan, 2005).