The Trail Smelter Case Foundations of international environmental

The Trail Smelter Case Foundations of international environmental law

City of Trail – 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

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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 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.

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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 improvements thereon; (b) Damages in respect of uncleared land improvements thereon; 1937 Decision (c) Damages in respect of livestock ; 1 st Question (e) Damages in respect of the wrong done the United States in violation of sovereignty (d) Damages in respect of property in the town of Northport; (f) Damages in respect of interest on S 350, 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 1 st 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 seventy-eight 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 2 nd 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 2 nd 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 2 nd 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 2 nd 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 3 rd 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 3 rd Question

1941 Decision 3 rd 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.