Transcript The Trail Smelter Case

The Trail Smelter Case
Foundations of international environmental law
City ofTrail – 2015?
Trail, British Columbia, Canada
Cominco Smelter – 1927
Trail, British Columbia, Canada
Mining Areas
Trail, British Columbia, Canada
Cominco
Consolidated Mining and Smelting
Company
Cominco
Consolidated Mining and Smelting
Company
Timeline
 ARTICLE IX
BOUNDARY WATERS
TREATY
Treaty between the
United States and
Great Britain
relating to boundary
waters, and questions
arising between
the United States and
Canada - 1909
 The High Contracting Parties further agree that any other questions
or matters of difference arising between them involving the rights,
obligations, or interests of either in relation to the other or to the
inhabitants of the other, along the common frontier between the
United States and the Dominion of Canada, shall be referred from
time to time to the International Joint Commission for examination
and report, whenever either the Government of the United States
or the Government of the Dominion of Canada shall request that
such questions or matters of difference be so referred.
 The International Joint Commission is authorized in each case so
referred to examine into and report upon the facts and
circumstances of the particular questions and matters referred,
together with such conclusions and recommendations as may be
appropriate, subject, however, to any restrictions or exceptions
which may be imposed with respect thereto by the terms of the
reference.
 Such reports of the Commission shall not be regarded as decisions of
the questions or matters so submitted either on the facts or the law,
and shall in no way have the character of an arbitral award.
Timeline
 ARTICLE II.
OTTAWA
CONVENTION
Convention for the
settlement of
difficulties arising from
operation of smelter at
Trail, B.C.
 The Governments of the United States and of Canada, hereinafter
referred to as "the Governments", mutually agree to constitute a
tribunal hereinafter referred to as "the Tribunal", for the purpose
of deciding the questions referred to it under the provisions of
Article III. The Tribunal shall consist of a chairman and two national
members. The chairman shall be a jurist of repute who is neither a
British subject nor a citizen of the United States. He shall be chosen
by the Governments, or, in the event of failure to reach agreement
within nine months after the exchange of ratifications of this
convention, by the President of the Permanent Administrative
Council of the Permanent Court of Arbitration at The Hague
described in Article 49 of the Convention for the Pacific Settlement
of International Disputes concluded at The Hague on October 18,
1907. The two national members shall be jurists of repute who have
not been associated, directly or indirectly, in the present
controversy. One member shall be chosen by each of the
Governments. The Governments may each designate a scientist to
assist the Tribunal.
Questions to
the tribunal
(Art. III)
 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?
 In the event of the answer to
the first part of the preceding
question being is positive, to
what extent should there be
compensation?
 In light of the answer to the
preceding question, what
measures or regime, if any,
should be adopted or
maintained by the Trail
Smelter?
 What indemnity or
compensation, if any, should
be paid because of any
decision or decisions
rendered by the Tribunal
pursuant to the next two
preceding questions?
 ARTICLE IV.
Applicable
Law?
 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.
 (a) Damages in respect of cleared land and improvements
thereon;
 (b) Damages in respect of uncleared land and improvements
thereon;
1937 Decision
1st Question
 (c) Damages in respect of livestock ;
 (d) Damages in respect of property in the town of Northport;
 (e) Damages in respect of the wrong done the United States in
violation of sovereignty
 (f) Damages in respect of interest on S350,000 eventually
accepted in satisfaction of damage to January 1, 1932, but not paid
until November 2, 1935
 (g) Damages in respect of business enterprises
1937 Decision
1st Question
 “In conclusion, the Tribunal answers Question 1 in Article III, as
follows : Damage caused by the Trail Smelter in the State of
Washington has occurred since the first day of January, 1932, and
up to October 1, 1937, and the indemnity to be paid therefor is
seventy-eight thousand dollars ($78,000), and is to be complete
and final indemnity and compensation for all damage which
occurred between such dates. Interest at the rate of six per
centum per year will be allowed on the above sum of seventyeight thousand dollars ($78,000) from the date of the filing of this
report and decision until date of payment. This decision is not
subject to alteration or modification by the Tribunal hereafter.”
1941 Decision
2nd Question
 “The first problem which arises is whether the question should
be answered on the basis of the law followed in the United
States or on the basis of international law. The Tribunal,
however, finds that this problem need not be solved here as the
law followed in the United States in dealing with the quasisovereign 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”
 “As 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.’”
 “No case of air pollution dealt with by an international tribunal has
been brought to the attention of the Tribunal nor does the Tribunal
know of any such case.”
1941 Decision
2nd Question
 “The first problem which arises is whether the question should
be answered on the basis of the law followed in the United
States or on the basis of international law. The Tribunal,
however, finds that this problem need not be solved here as the
law followed in the United States in dealing with the quasisovereign 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”
 “As 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.’”
 “No case of air pollution dealt with by an international tribunal has
been brought to the attention of the Tribunal nor does the Tribunal
know of any such case.”
1941 Decision
2nd Question
 “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 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.”
1941 Decision
2nd Question
 “The Tribunal, therefore, answers Question No. 2 as follows: (2) 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.”
1941 Decision
3rd Question
 "In the light of the answer to the preceding question, what
measures or régime, if any, should be adopted and maintained by
the Trail Smelter?“
1941 Decision
3rd Question
1941 Decision
3rd Question
 "In the light of the answer to the preceding question, what
measures or régime, if any, should be adopted and maintained by
the Trail Smelter?“
Challenges
Special difficulties arisen from the situation
Canada
USA
Smelter
Farmers
 Principle 2
Rio
Declaration
(1992)
 States have, in accordance
with the Charter of the
United Nations and the
principles of international
law, the sovereign right to
exploit their own resources
pursuant to their own
environmental and
developmental policies,
and the responsibility to
ensure that activities
within their jurisdiction or
control do not cause
damage to the
environment of other
States or of areas beyond
the limits of national
jurisdiction.
 Principle 16
 National authorities should
endeavour to promote the
internalization of
environmental costs and
the use of economic
instruments, taking into
account the approach that
the polluter should, in
principle, bear the cost of
pollution, with due regard
to the public interest and
without distorting
international trade and
investment.