Brain Booster Articles
TRAIL SMELTER ARBITRATION (UNITED STATES v. CANADA) 1941, U.N. REP. INT'L ARB. AWARDS 1905 (1949)
Author: Saumya Sakshi, V year of B.A.,LL.B. from Amity Law School, Noida, UP
PARTIES: United States of America, Canada.
SPECIAL AGREEMENT: Convention of Ottawa, April 15, 1935.
ARBITRATORS: Charles Warren (U.S.A.), Robert A. E. Greenshields (Canada), Jan Frans Hostie (Belgium).
AWARD: April 16, 1938, and March 11, 1941.
The Trail Smelter arbitration of 1938 and 1941 is considered as one of the historical decisions dealing with a dispute over environmental degradation between the United States and Canada. This Case deals with the issue of International Environmental Law. The crux of this case, there was damage was caused by one country to the environment of the other country that resulted in the legal suit. Legally, this issue was not taken as different from loss caused to the public or private property, for instance by the inadvertent penetration of a foreign State's territory by armed forces.
In this case for the very first time an international tribunal set out the principle that one country must not by itself, or by its national, let its territory used in such a manner that it causes trouble or harm to neighbouring countries. The tribunal announced a landmark decision where, it was propounded that damage would be provided in case there is an injury caused by one state to another state, even when there is no such existing treaty between the nations that provide an obligation to prevent such damage.
FACTS OF THE CASE
The Trail smelter is located at Trail, in British Colombia (Canada), this area is also known as a mineral-rich area. It was operated by the Consolidated Mining and Smelting Company COMINCO, in 2001 it merged with Teck. The smoke from these smelters was alleged to cause damage to trees, crops and land in the surrounding area and also border shared between Canada-US in Washington. The company without any interruption was operating the smelter and made it one of the largest and biggest smelting plant in the whole American continent.
Everything was going smooth, but in the year 1925 and 1927, the company raises its output increasing more sulphur dioxide fumes which distressed residents of nearby areas, resulting in complaints to COMINCO and demands for compensation.
The dispute resulted in a legal suit between the USA and Canada which was being sent to an arbitration tribunal. The USA was provided compensation of $350,000 in respect of damage caused till 1 January 1932 as recommended by the International Joint Commission. But the USA was unsatisfied with this and informed Canada about the same, thus an arbitral tribunal was set up to decide the issue finally. The Negotiation and resulting litigation and arbitration were finally settled in the year 1941.
The issue before the tribunal was that-
1. Is the state responsible for the damages caused to another country, due to harmful acts by its citizens from the jurisdiction of the country itself at all times?
2. Whether the smelter should be required to cease operation.
Yes. The state is made responsible to protect other nations from damage caused due to harmful acts of individuals from the jurisdiction of the country at all times. In this case, Canada was held responsible and ordered to pay compensation to the USA for causing damage and was made obliged to reduce the pollution. While delivering the decision the tribunal made a landmark declaration which is often cited as precedent in any case 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." [i]
The tribunal also directed the trial smelter company to abate producing pollution as long as the pollution level is high in Washington, USA. The amount of damage paid is to be determined by the government of both countries according to article 3 of the convention that exists between these two countries.
At last, the tribunal provides a list of measures to control the pollution emission from the operation of a smelter, as in the opinion of the tribunal it may be possible in future that again damage may be caused due to operation of smelter unless they are controlled and curtailed.
The rationale behind the judgement is that no nation is allowed to use or permit to use its territory in such a way that it causes damage to another nation. This is against the rule of international law, every state shall have to respect and take care of neighbouring states. And in this case, injury caused due to activity caused at the jurisdiction of a state, which causes loss to the person and properties of another state it is not allowed both in international law and the laws of the united stated.
The decision of trial smelter has founded the important principle underlying international environmental law. This principle provided that, A country will be held liable, if it creates transboundary pollution or any environmental hazardous effect which cause damage to another country, either directly or indirectly.
1. TRANS-LEX. ORG, Trail smelter case (United States, Canada), 3 UNRIAA, p. 1905, 1952., https://www.trans-lex.org/291520/_/trail-smelter-case-3-unriaa-p-1905-1952/.
2. Trail Smelter Arbitration (United States v. Canada), CASE BRIEFS, https://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-18/trail-smelter-arbitration-united-states-v-canada/.
3. The Trail Smelter Case, LAW TEACHER, https://www.lawteacher.net/free-law-essays/international-law/trail-smelter-case.php.
[i]Trail Smelter Arbitration, ENCYCLOPEDIA.COM, https://www.encyclopedia.com/environment/encyclopedias-almanacs-transcripts-and-maps/trail-smelter-arbitration