COMPENDIUM OF SUMMARIES OF JUDICIAL DECISIONS IN ENVIRONMENT RELATED CASES

INTERNATIONAL

International - Watercourse and Rights to Use

TRAIL SMELTER ARBITRATION

(1938/1941) 3 R.I.A.A. 1905

ARBITRAL; TRIBUNAL: U.S. AND CANADA

Introduction

The Columbia River rises in Canada and flows past a lead and zinc smelter at Trail, British Columbia. The climate from beyond Trail on the United States boundary is dry, but not arid. The smelter had been built under U.S. auspices, but had been taken over by a Canadian company in 1906. In 1925 and 1927, stacks, 409 feet high, were erected and the smelter increased its output, resulting in more sulphur dioxide fumes. The higher stacks increased the area of damage in the United States. From 1925 to 1931, damage had been caused in the State of Washington by the sulphur dioxide coming from the Trail Smelter, and the International Joint Commission recommended payment of $350,000 in respect of damage to 1 January, 1932. The United States informed Canada that the conditions were still unsatisfactory and an Arbikal Tribunal was set up to "finally decide" whether further damage had been caused in Washington and the idemnity due, whether the smelter should be required to cease operation; the measures to be adopted to this end; and compensation due. The Tribunal was directed to apply the law and practice of the United States as well as international law and oractice.

Held

Referring to international law on various matters from the Alabama Case and decisions of the U.S. Supreme Court, the Tribunal found that taken as a whole, these decisions constitute an adequate basis for its conclusions, namely, that under the principles of international law, as well as 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 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 held that the Dominion of Canada is responsible by international law for the conduct of the Trail Smelter. Apart from the undertakings of 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.

Therefore, 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 idemnity for such damage should be fixed in such a manner as the Governments should agree upon.