THE TRAIL SMELTER

ARBITRATION
FACTS
THE CONTROVERSY IS BETWEEN TWO
GOVERNMENTS INVOLVING DAMAGE
OCCURRING, OR HAVING OCCURRED, IN THE
TERRITORY OF ONE OF THEM (THE UNITED
STATES OF AMERICA) AND ALLEGED TO BE DUE
TO AN AGENCY SITUATED IN THE TERRITORY
OF THE OTHER (THE DOMINION OF CANADA).
IN 1896, A SMELTER WAS STARTED UNDER
AMERICAN AUSPICES NEAR THE LOCALITY
KNOWN AS TRAIL, B.C. IN 1906, THE
CONSOLIDATED MINING AND SMELTING
COMPANY OF CANADA, LIMITED,
ACQUIRED THE SMELTER PLANT AT TRAIL.
THE TAIL SMELTER
THE TAIL SMELTER
THE TAIL SMELTER
THE TAIL 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
production resulted in more sulphur
dioxide fumes and higher
concentrations being emitted into the
air. About 300-350 tons of sulphur were
being emitted daily in 1930.
FROM 1925, AT LEAST, TO 1937, DAMAGE
OCCURRED IN THE STATE OF WASHINGTON,
RESULTING FROM THE SULPHUR DIOXIDE EMITTED
FROM THE TRAIL SMELTER. THE SMELTING PROCESS
INVOLVES SULPHUR DIOXIDE BEING DISCHARGED
INTO THE AIR AND THEN CARRIED DOWNSTREAM BY
THE WIND INTO WASHINGTON, USA, CAUSING
DAMAGE TO PRIVATE FARMS AND TIMBER LANDS.
THIS LED TO THE UNITED STATES
(P) SUIT AGAINST THE CANADA
(D) WITH AN INJUNCTION
AGAINST FURTHER AIR
POLLUTION BY TRAIL SMELTER.
THE SUBJECT OF FUMIGATIONS AND DAMAGE
CLAIMED TO RESULT FROM THEM WAS REFERRED
BY THE TWO GOVERNMENTS TO THE
INTERNATIONAL JOINT COMMISSION, UNITED
STATES AND CANADA, UNDER ARTICLE IX OF THE
CONVENTION OF JANUARY 11, 1909, BETWEEN
THE UNITED STATES AND GREAT BRITAIN.
ISSUES
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 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 REGIME, 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?
RELEVANT ISSUE

IN THE EVENT OF THE ANSWER TO

THE FIRST PART OF THE PRECEDING
QUESTION BEING IN THE
AFFIRMATIVE, WHETHER TRAIL
SMELTER SHOULD BE REQUIRED TO
REFRAIN FROM CAUSING DAMAGE IN
THE STATE OF WASHINGTON IN THE
FUTURE AND, IF SO. TO WHAT
EXTENT?
RULING
INTERNATIONAL LAW WAS APPLIED BY THE
TRIBUNAL BECAUSE THE LAW FOLLOWED IN THE
UNITED STATES IN DEALING WITH THE QUASI-
SOVEREIGN RIGHTS OF THE STATES OF THE
UNION, IN THE MATTER OF AIR POLLUTION,
WHILST MORE DEFINITE, IS IN CONFORMITY WITH
THE GENERAL RULES OF INTERNATIONAL LAW.
THE TRIBUNAL QUOTED PROFESSOR
EAGLETON (RESPONSIBILITY OF STATES IN
INTERNATIONAL LAW) : "A STATE OWES AT
ALL TIMES A DUTY TO PROTECT OTHER
STATES AGAINST INJURIOUS ACTS BY
INDIVIDUALS FROM WITHIN ITS
JURISDICTION."
A GREAT NUMBER OF SUCH GENERAL
PRONOUNCEMENTS BY LEADING
AUTHORITIES CONCERNING THE DUTY
OF A STATE TO RESPECT OTHER
STATES AND THEIR TERRITORY HAVE
BEEN PRESENTED TO THE TRIBUNAL.
CASES CITED BY THE COURT:
1. CANTONS OF SOLEURE V. AND ARGOVIA

2. STATE OF MISSOURI V. THE STATE OF ILLINOIS

3. STATE OF NEW YORK V. STATE OF NEW JERSEY

4. STATE OF GEORGIA V. TENNESSEE COPPER

COMPANY AND DUCKTOWN SULPHUR
CASES CITED BY THE COURT:
1. CANTONS OF SOLEURE V. AND ARGOVIA

THE DEMAND OF THE GOVERNMENT OF SOLEURE", SAID

THE COURT, "THAT ALL ENDANGERMENT BE ABSOLUTELY
ABOLISHED APPARENTLY GOES TOO FAR
CASES CITED BY THE COURT:
2. STATE OF MISSOURI V. THE STATE OF
ILLINOIS

"BEFORE THIS COURT OUGHT TO INTERVENE", SAID THE

COURT, "THE CASE SHOULD BE OF SERIOUS MAGNITUDE,
CLEARLY AND FULLY PROVED, AND THE PRINCIPLE TO BE
APPLIED SHOULD BE ONE WHICH THE COURT IS PREPARED
DELIBERATELY TO MAINTAIN AGAINST ALL CONSIDERATIONS
ON THE OTHER SIDE."
CASES CITED BY THE COURT:
3. STATE OF NEW YORK V. STATE OF NEW
JERSEY

BEFORE THIS COURT CAN BE MOVED TO EXERCISE ITS

EXTRAORDINARY POWER UNDER THE CONSTITUTION TO
CONTROL THE CONDUCT OF ONE STATE AT THE SUIT OF
ANOTHER, THE THREATENED INVASION OF RIGHTS MUST BE
OF SERIOUS MAGNITUDE AND IT MUST BE ESTABLISHED BY
CLEAR AND CONVINCING EVIDENCE."
CASES CITED BY THE COURT:
3. STATE OF NEW YORK V. STATE OF NEW
JERSEY

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.
CASES CITED BY THE COURT:
4. STATE OF GEORGIA V. TENNESSEE COPPER
COMPANY AND DUCKTOWN SULPHUR

.... IT IS A FAIR AND REASONABLE DEMAND ON THE PART OF

A SOVEREIGN THAT THE AIR OVER ITS TERRITORY SHOULD
NOT BE POLLUTED ON A GREAT SCALE BY SULPHUROUS
ACID GAS, THAT THE FORESTS ON ITS MOUNTAINS, BE THEY
BETTER OR WORSE, AND WHATEVER DOMESTIC
DESTRUCTION THEY MAY HAVE SUFFERED, SHOULD NOT BE
FURTHER DESTROYED OR THREATENED BY THE ACT OF
PERSONS BEYOND ITS CONTROL, THAT THE CROPS AND
ORCHARDS ON ITS HILLS SHOULD NOT BE ENDANGERED
FROM THE SAME SOURCE... . WHETHER GEORGIA, BY
INSISTING UPON THIS CLAIM, IS DOING MORE HARM THAN
GOOD TO HER OWN CITIZENS, IS FOR HER TO DETERMINE.
THE POSSIBLE DISASTER TO THOSE OUTSIDE THE STATE
MUST BE ACCEPTED AS A CONSEQUENCE OF HER STANDING
UPON HER EXTREME RIGHTS.
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 PROPER- TIES OR
PERSONS THEREIN, WHEN THE CASE IS OF SERIOUS
CONSEQUENCE AND THE INJURY IS ESTABLISHED BY
CLEAR AND CONVINCING EVIDENCE.
 THE
CONSIDERING THE CIRCUMSTANCES OF THE CASE,
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.