TRAIL SMELTER ARBITRATION

(United States vs. Canada)

BACKGROUND OF THE CASE:

The United States (Petitioner) 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 (Defendant).
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 suit against the Canada with an injunction against further
air pollution by Trail Smelter.
 The Columbia River rises in Canada and flows past a lead and zinc
smelter located at Trail, in British Columbia (Canada). The smelter company
was alleged to cause damage to trees, crops and land in the American
States of Washington. The climate from beyond Trail on the United States
boundary is dry, but not arid. The smelter was built under U.S. auspices, but
had been taken over. In 1906, the Consolidated Mining and Smelting
Company of Canada, Limited acquired the smelter plant at Trail. Since that
time, the Canadian company, without interruption, has operated the Smelter,
and from time to time has greatly added to the plant until it has become one
of the best and largest equipped smelting plants on the American
continent.4 In 1925 and 1927, stacks, 409 feet high, were erected and the
smelter increased its output, resulting in more sulphur dioxide fumes.
ISSUE:

Whether or not the responsibility of the State to protect

to protect other states against harmful acts by individuals
from within its jurisdiction at all times.
RULING:

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.
DISCUSSION:

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.
3 IMPORTANT PARAGRAPHS IN THE
DECISION
1.
The word "damage", as used in this document shall mean and include such damage
as the Governments of the United States and Canada may deem appreciable, and for
the purposes of paragraphs (a) and (c) hereof, shall not include occasional damage
that may be caused by SO2 fumes being carried across the international boundary in
air pockets or by reason of unusual atmospheric conditions. Provided, however, that
any damage in the State of Washington howsoever caused by said fumes on or after
January 1, 1932, shall be the subject of indemnity by the company to any interests so
damaged
2. The Tribunal, therefore, finds that the above decisions, taken
as a whole, constitute an adequate basis for its conclusions,
namely, that, under the principles of international law, as well as
of the law of the United States, 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.
3. 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. Apart from the undertakings 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, therefore, answers
Question No. 2 as follows: (2) 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; the
damage herein referred to and its extent being such as would be recoverable
under the decisions of the courts of the United States in suits between private
individuals. The indemnity for such damage should be fixed in such manner
as the Governments, acting under Article XI of the Convention, should agree
upon.
Important Principle in IEL:
TRANSBOUNDARY ENVIRONMENTAL HARM

The essence of this obligation, often referred to as the no-harm rule or the
prohibition of transboundary environmental harm, is that states may not
conduct or permit activities within their territories, or in common spaces,
without regard to other states or for the protection of the global environment.
The origins of the obligation lie in the old principle of international law that
states are obliged not to inflict damage on, or violate the rights of other states,
which is often expressed by reference to the sic utere tuo ut alienum non
laedas principle (use your own property in such a way that you do not injure
other people’s).