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Trail Smelter Arbitration Case

Antecedent Facts

- The area around the Smelter in question, specifically the affected areas in Washington State was
briefly settled prior to its erection. Lumber was the dominant industry at this period. Agriculture
was also carried out.
- In 1896, a smelter was started under American auspices near the locality known as Trail. In
1906, the Consolidated Mining and Smelting Company of Canada, Limited, obtained a charter of
incorporation from the Canadian authorities, and that company acquired the smelter plant at
Trail as it then existed. Since that time, the Canadian Company, without interruption, has
operated the Smelter.
- In 1925 and 1927, two stacks of the plant were erected to 409 feet in height and the Smelter
greatly increased its daily smelting of zinc and lead ores. This increased product resulted in more
Sulphur dioxide fumes and higher concentrations being emitted into the air.
- As early as 1925 (and there is some evidence earlier) suggestions were made to the Trail Smelter
that damage was being done. The first formal complaint was subsequently raised by one J. H.
Stroh.
- 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 decided that Canada has to pay 350,000 USD for the damages caused by the
Trail Smelter up to January 1, 1932 and both the Canadian and American governments shall
decide the indemnity for damages occurring after said date to be paid by the Smelter Company.
- Two years after the signing of the International Joint Commission's Report of February 28, 1931,
the United States Government on February 17, 1933, made representations to the Canadian
Government that existing conditions were entirely unsatisfactory and that damage was still
occurring.
- This resulted into the formation of CONVENTION FOR SETTLEMENT OF DIFFICULTIES ARISING
FROM OPERATION OF SMELTER AT TRAIL.
- Said convention affirmed Canada’s responsibility to pay the aforementioned 350,000 USD and it
also mandated the formation of a tribunal.
- Said tribunal was to answer four questions posed by both governments.

1. Whether damage caused by the Trail Smelter in the State of Washington has occurred since the
first day of January 1932, and, if so, what indemnity should be paid therefor?
2. In the event of the answer to the first part of the preceding Question being in the affirmative,
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?
3. In the light of the answer to the preceding Question, what measures or régime, if any, should
be adopted or maintained by the Trail Smelter?
4. What indemnity or compensation, if any, should be paid on account of any decision or decisions
rendered by the Tribunal pursuant to the next two preceding Questions?

- The Tribunal shall apply the law and practice followed in dealing with cognate questions in the
United States of America as well as international law and practice, and shall give consideration
to the desire of the high contracting parties to reach a solution just to all parties concerned.

Tribunal’s Decision

Whether damage caused by the Trail Smelter in the State of Washington has occurred since the first
day of January 1932, and, if so, what indemnity should be paid therefor?

In the determination of the first part of this question, the Tribunal has been obliged to consider three
points, viz-, the existence of injury, the cause of the injury, and the damage due to the injury.

The Tribunal has deemed that damage has occurred due to evidence gathered.

Both governments conducted experiments to help their arguments. the United States contended that
damage had been caused by the emission of sulphur dioxide fumes at the Trail Smelter in British Columbia,
which fumes, proceeding down the valley of the Columbia River and otherwise, entered the United States.
The Dominion of Canada contended that even if such fumes had entered the United States, they had
caused no damage after January 1, 1932. The Tribunal rejected both findings as the experiments were
limited in scope.

The Tribunal ruled that it was the Sulphur emitted by the stacks from the Smelter that caused the damage
along the surrounding areas. That the same has affected the acidity level of the soil from surrounding
lands, especially to areas very near from the Trail Smelter and the border.

On the basis of the evidence and facts gathered, the Tribunal so ruled:

For damage with respect to cleared land and uncleared land, the Tribunal has awarded with respect to
damage to cleared land and to uncleared land (other than uncleared land used for timber), an indemnity
of sixty-two thousand dollars ($62,000); and with respect to damage to uncleared land used for timber an
indemnity of sixteen thousand dollars ($16,000) —being a total indemnity of seventy-eight thousand
dollars ($78,000). Such indemnity is for the period from January 1, 1932, to October 1, 1937.

The aforementioned damage were the only ones proved by the American side. The American side also
claimed damages for violation of sovereignty but the same was denied by the Tribunal as it tis not within
the ambit of the agreement between the parties that the damage as used in the convention shall be
limited that caused by the Smelter.

In the event of the answer to the first part of the preceding Question being in the affirmative,
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?

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 Supreme Court 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 United States and the 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 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.

Finally, the Tribunal held:

“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.”

In the light of the answer to the preceding Question, what measures or régime, if any, should be
adopted or maintained by the Trail Smelter?

The Tribunal calls for the usage of technologies that would limit the ill effects of the Trail Smelter and
the further observations, investigations, monitoring operations upon the subject area. The
compensation of the scientists to be employed shall be paid for by their respective governments.

That Tribunal has the power to establish a régime, it must equally possess the power to provide for
alteration, modification or suspension of such régime. It would clearly not be a "solution just to all
parties concerned" if its action in prescribing a régime should be unchangeable and incapable of being
made responsive to future conditions.

The Tribunal also set restrictions as to the volume of Sulphur Dioxide in the air as emitted by the Trail
Smelter. However, the Tribunal rejected the American’s contention that the Trail Smelter should pay if it
exceeds the limit as this will unduly burden the same.

What indemnity or compensation, if any, should be paid on account of any decision or decisions
rendered by the Tribunal pursuant to the next two preceding Questions?

(a) If any damage as defined under Question No. 2 shall have occurred since October 1, 1940, or
shall occur in the future, whether through failure on the part of the Smelter to comply with the
regulations herein prescribed or notwithstanding the maintenance of the régime, an indemnity
shall be paid for such damage but only when and if the two Governments shall make
arrangements for the disposition of claims for indemnity under the provisions of Article XI of the
Convention.
(b) If as a consequence of the decision of the Tribunal in its answers to Question No. 2 and Question
No. 3, the United States shall find it necessary to maintain in the future an agent or agents in the
area in order to ascertain whether damage shall have occurred in spite of the régime prescribed
herein, the reasonable cost of such investigations not in excess of $7,500 in any one year shall
be paid to the United States as a compensation, but only if and when the two Governments
determine under Article XI of the Convention that damage has occurred in the year in question,
due to the operation of the Smelter, and "disposition of claims for indemnity for damage" has
been made by the two Governments.