Trails smelter case

The Trail Smelter case was a transboundary pollution dispute between the United States and Canada that established fundamental principles in international environmental law: 

Background

A Canadian smelter in Trail, British Columbia emitted sulfur dioxide that damaged the environment and crops in Washington State. The smelter's operators, Consolidated Mining and Smelting Company (COMINCO), and the affected landowners could not resolve their dispute. 

Legal proceedings

The U.S. government began diplomatic efforts in 1927, and the two countries agreed to bring the case to the International Joint Commission (IJC). The IJC recommended $350,000 in compensation, but the U.S. rejected this offer. In 1935, the two countries agreed to arbitration. 

Decision

The arbitration resulted in a settlement where Canada paid the U.S. $350,000 for damages caused before January 1, 1932. The settlement also established operational standards that required the smelter to shut down for at least a year and a half. 

Principles established

The case established the concept of "transboundary harm" and the "polluter pays" principle. The "sic utere" principle established in the case has since been applied to cases of terrorism and internet torts. 

Trail Smelter Arbitration (United States v. Canada)

Citation. Arbitral Trib., 3 U.N. Rep. Int’l Arb. Awards 1905 (1941)

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.