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 Smelters 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.

TRAIL SMELTER ARBITRATION CASE( UNITED STATES VS CANADA) 1941,

U.N. Rep. Int'L Arb. AWARDS 1905 (1949)
INTRODUCTION:-

The Trail Smelter Case1 arose in the field of late 1950's and came up with the issue of
International Environmental Law. In this case it was damage caused by one State to the
environment of the other that triggered the legal claim. Legally the issue was not viewed as
different from damage caused to the public or private property, for instance by the inadvertent
penetration of a foreign State's territory by armed forces. For the first time an International
Tribunal propounded the principle that as State may not use, or allow its national's to use, its own
territory in such a manner as to cause injury to a neighboring country'2. The facts of the case are
lead below :The Columbia River rises in Canada and flows past a lead and zinc smelter located at Trail, in
British Columbia (Canada). The smelter company was alleged to cause damage to trees, crops
and land in the American States of Washington.3 The climate from beyond Trail on the United
States boundary is dry, but not arid. The smelter was built under U.S. auspices, but had been
taken over. In 1906, the Consolidated Mining and Smelting Company of Canada, Limited
acquired the smelter plant at Trail. Since that time, the Canadian company, without interruption,
has operated the Smelter, and from time to time has greatly added to the plant until it has become
one of the best and largest equipped smelting plants on the American continent.4 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 indemnity due, whether the
smelter should be required to
1. 1941, U.N. Rep. Int'L Arb. AWARDS 1905 (1949)

2. Cassese Antonio, International Law, Oxford University Press, 2nd edition, 2005, New York,
484
3. Ibid pg 484.
4. Noah D. Hall, FOURTH IUCN ACADEMY OF ENVIRONMENTAL LAW WORLDWIDE
COLLOQUIUM: IMPLEMENTING ENVIRONMENTAL LEGISLATION: THE CRITICAL
ROLE OF ENFORCEMENT AND COMPLIANCE, Pace Environmental Law Review, Winter,
2007, 5
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.'5 The United States Government, on February 17, 1933, made represents to the
Canadian Government that the existing conditions were entirely unsatisfactory and that damage
was still occurring and diplomatic negotiations were entered into, which resulted in the signing
of the present convention.'6
The Court held Canada responsible for the conduct of the Trail Smelter and enjoined it to pay
compensation to United States. The court also provided for future monitoring of the effects of the
factory's activities on the environment, to prevent possible future damages to the United States
environment.'7
The subsequent diplomatic negotiations led to the United States and Canada signing and
ratifying a Convention in 1935. Through the Convention, the two countries agreed to refer the
matter to a three-member arbitration tribunal composed of an American, a Canadian, and an
independent chairman (a Belgian national was ultimately appointed). The arbitration tribunal was
charged with first determining whether damages caused by Trail Smelter continued to occur after
January 1, 1932 and, if so, what indemnity should be paid. Under the Convention, Canada had
already agreed to pay the United States $ 350,000 for damages prior to 1932, based on the
findings of the IJC. The arbitration tribunal addressed this first question in this context of the
case determining that the damages caused by the Canadian smelter to properties in Washington
State from 1932 to 1937 amounted to $ 78,000 (equivalent to approximately $ 1.1 million in
2006). The arbitration tribunal's more difficult, and ultimately more significant charge, was to
decide whether the Canadian smelter should be required to refrain from causing damage in the
State of Washington in the future, and what measures or regime, if any, should be adopted or
maintained by the smelter, in addition to future "indemnity or compensation."
5. http://www.unescap.org/DRPAD/VC/document/compendium/int7.htm
6. Mark W. Jarris & John E. Noyes, Cases and Commentary on International Law, West
Publishing Company, 1997, St. Paul, 586

7. Supra note 2 pg 484

To answer these questions, the tribunal was directed to 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 give consideration to the desire of the High Contracting Parties to reach a solution
just to all parties concerned.'8
The Trail Smelter case came up with the issue of "duty" of states to "prevent transboundary
harm" and invoking the "polluter pays" principle. Firstly we move on to the Transboundary
Harm' issue. Transboundary Harm proceeds in three parts. Part One examines the historical
foundations of the case, its influence on international environmental law, and the smelter's
continuing yet largely unknown toxic legacy. Part Two examines the case's contemporary
significance for the law of transboundary environmental harm. Part Three looks beyond
environmental law to examine the significance of the Trail Smelter arbitration for legal responses
to other transboundary harms, from international terrorism to Internet torts.'9 Illustratively:
Part One examination begins with a detailed account of the history surrounding the dispute,
describing the important roles of the private parties involved and examining the actions of the
state actors in arbitrating the dispute on behalf of the parties. Part One also examines the
"jurisprudential legacy" of the decision in an increasingly prevention-focused, regulatory world.
The usefulness of the Smelter case is limited by the fact that the dispute turned more on the
rights of states as "sovereign equals" and less on the undesirability of transboundary pollution.
Unlike the situation in Trail, in contemporary disputes the cause of damages is often unclear and
the disputing countries often lack a history of cooperation and "reciprocal" interests which
counsel them toward cooperation and moderation. The enduring significance of the "due
diligence" obligation was created by the Tribunal. The obligation "not to cause serious
environmental harm" - was originally intended to ensure the continuing compliance of the Trail
Smelter with
8. Supra note 4 pg 6
9. Stepan Wood, TRANSBOUNDARY HARM IN INTERNATIONAL LAW LESSONS FROM
THE TRAIL SMELTER ARBITRATION, EDITED BY REBECCA M. BRATSPIES &
RUSSELL A. MILLER (NEW YORK: CAMBRIDGE UNIVERSITY PRESS, 2006) 347pages,
Osgood Hall Law Journal.
pollution-prevention measures. Due diligence, is recognized by the "Draft Articles on Prevention
of Transboundary Harm from Hazardous Activities" as the requisite level of intent needed to
establish the liability of transboundary polluters. Part One closes with an account of a new
dispute over pollution by the Trail Smelter - the United States Environmental Protection Agency
(EPA) has recently issued a regulatory order under the Comprehensive Environmental Response,

Compensation and Liability Act (CERCLA) against Cominco relating to pollution of the
Columbia River "watershed." An action to enforce the order is pending in United States Courts.
The regulatory character of this action, and the attempt by the United States to directly regulate a
foreign entity under a "strict liability" theory of accountability, demonstrates a drastic break in
the character of modern transboundary pollution disputes.'10
Part Two examines the significance and potential relevance of the Trail Smelter principles to
important "contemporary" issues in transboundary environmental harm. The issues surveyed
include genetically modified organisms, nuclear energy, global climate change, hazardous waste
transport, transboundary air pollution, and marine pollution, among others. The difficulty of
identifying any particular polluting entity as the single cause of global pollution problems, like
climate change cannot be identified. The requirement of "clear and convincing evidence" of
"serious" environmental harm makes liability increasingly difficult to establish, and bilateral
litigation becomes less effective in solving widespread pollution problems. States still reign
supreme even in such international regulatory regimes, as conventions generally depend upon
state cooperation and often are more concerned with preserving the sovereign equality of states
than preventing pollution. One other key theme in Part Two is a recognition of the fact that
although Canada voluntarily assumed responsibility for the actions of a private company in the
Trail Smelter arbitration, such attributions of control are more problematic.'11
10. Lisa Gouldy, Transboundary Harm in International Law: Lessons from the Trail Smelter
Arbitration. Edited by Rebecca M. Bratspies and Russell A. Miller. New York, New York:
Cambridge University Press, 2006. Pp. xxi, 347. New York University Journal of International
Law and Politics, Winter, 2006. 2.
11. Ibid pg 2.
Part Three innovatively examines the applicability of Trail Smelter to non-environmental forms
of "transboundary harm" as broadly defined, including terrorism, refugee flows, Internet torts,
drug trafficking, and human rights. Generally, such analyses find that Trail's lessons are not
easily transposed to other sorts of transboundary harm. First, "liability regimes" imposing
damages for continuing harms are not always appropriate to remedy non-environmental harms.
In the cases of migration of refugees forcing the state from which the harm emanated to
compensate other states for the harm engendered will not generally resolve the problem because
the harms tend to arise from instability, poverty, or weak governments within those states. Not
only will those states generally have little money to satisfy any potential judgment, but any such
judgment could only serve to further destabilize the state and increase the harm.
In other situations, the intense focus of Trail Smelter on theories of sovereign equality makes it
less well suited to address harms caused by private actors. For example, with respect to Internet
torts or terrorism, states may not be well placed to prevent the commission of such harms by

private actors. In addition, multinational corporations often operate across many different states,
making it difficult to hold any one state responsible for their harmful actions. Rather,
multinational corporations often have better resources and scientific knowledge to regulate their
own actions in ways consistent with notions of "corporate social and environmental
responsibility" and therefore states must work together with those corporations in that regard.
Finally, the Trail Smelter remains relevant insofar as it would counsel that states be held
responsible for their own extraterritorial actions which result in human rights violations
abroad.'12
After the issue of the transboundary harm we can come up to the general principles which have
been evolved from this case and its implications.
Only two General Principles have been evolved from the case of Smelter. The first and more
general one is that enjoying every State not to allow its territory to be used in such a way as to
damage the environment of other States or of areas beyond the limits of national jurisdiction.
This principle was first set out by the Arbitral Courts in the Smelter
12. Ibid pg 2.
case. This principle is substantially based on an even more general obligation, enunciated in the
Corfu Channel13 case where the principle laid down that every State is under the obligation not
to allow knowingly its territory to be used for acts contrary to the rights of the other States.'14
The second general principle attested to by the general and increasing concern of the States
about the environment and born out by the great number of treaties concluded that imposing
upon States the obligation to co-operate for the protection of the environment. This principle had
already been eluded in the decision of the Smelter case. It is off course much looser than the
previous one but already reflects a new approach to environmental issues, based on the
assumption that the environment is a matter of general concern. It follows from this principle that
every State must co-operate for the protection of this precious asset, regardless of whether or not
its own environment has been or may be harmed. This principle can only be applied jointly with
the customary rule on good faith, which states every State must in good faith endeavor to cooperate with other States with a view to protecting the environment. A blunt refusal to cooperate, unaccompanied by a statement of he reasons for such attitude, would amount to a breach
of the principle.'15 After dealing with issues of transboundary harm and general principles
applicable in this case we have to give the answers to the questions that has come up in this case
relating to whether the Canadian smelter should be required to refrain from causing damage in
the State of Washington in the future, and what measures or regime, if any, should be adopted or
maintained by the smelter, in addition to future "indemnity or compensation."

The tribunal first concluded that there was no need to chose between the law of the United
States or international law to decide the case, as the law followed in the United States in dealing
with the quasi-sovereign rights of the States of the Union, in the matter
13. ICJ Reports, 1949;16 ILR
14. Supra note 2. pg 488
15.Ibid pg.489.
of transboundary pollution, is in conformity with the general rules of international law. The
tribunal cited a leading international law authority: "As Professor Eagleton puts in ... 'A State
owes at all times a duty to protect other States against injurious acts by individuals from within
its jurisdiction.'"16The tribunal supplemented this general rule with a comprehensive summary
of the United States Supreme Court's decisions regarding interstate transboundary pollution,
including cases both between two sovereign states and between a state and local governments or
private parties (such as cities and mining companies). Taking the decisions as a whole, the
tribunal stated the following principles for transboundary pollution disputes:
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 cause is of
serious consequence and the injury is established by clear and convincing evidence.
The tribunal further held that the Dominion of Canada is responsible in international law for the
conduct of the Trail Smelter. Therefore, it is 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.17
Applying these principles to the dispute at hand, the tribunal required the Trail Smelter to
"refrain from causing any damage through fumes in the State of Washington."18 The tribunal
specifically noted that such damage would be actionable under United States law in a suit
between private individuals. Further, the tribunal ordered a detailed management regime and
regulations for the smelter to prevent sulphur dioxide emissions from reaching levels that cause
property damage in Washington State. The tribunal also indicated that it would allow future
claims for damages that occur, despite the imposed management regime.'19
16. CONVENTION FOR SETTLEMENT OF DIFFICULTIES ARISING FROM OPERATION
OF SMELTER AT TRAIL, B.C. U.S. Treaty series No. 893. Art XII
17. Ibid Art XII last Para
18. answer to the question of refraining of the Canadian smelter

19. Supra note 4 pg 6

The emergence of the Trail smelter dispute raises significant questions about the ability of
Canada and the United States to resolve transboundary pollution disagreements:
* Should U.S. domestic environmental laws be applied and enforced extraterritorially against
Canadian companies that operate exclusively in Canada?
* What international legal mechanisms exist to resolve transboundary water pollution disputes
between the United States and Canada satisfactorily and effectively?
* What lessons may be drawn from the original Trail Smelter Arbitration decided over sixty
years ago?
Answers to these questions are important, for the Trail smelter dispute which does not stand
alone. The United States has numerous other environmental disputes along the Canadian border
that are either ongoing or are in the making, and the number of disputes is expected to grow.
Accordingly, the countries need an effective means to resolve their transboundary pollution
problems.
This Article discusses some of the legal mechanisms available to resolve transboundary water
pollution disputes between the United States and Canada, as viewed through the context of the
Trail smelter dispute. This Article concludes that the use of international arbitration provides an
effective, and too often overlooked, way to resolve transboundary water pollution issues.20 Part I
describes the current Trail smelter dispute, and the unique environmental problems the Trail
smelter is believed to have caused to the Upper Columbia River Basin. Part II analyzes the legal
obstacles facing the U.S. Environmental Protection Agency and others wishing to use domestic
environmental laws to hold Canadian companies liable for transboundary pollution. Although the
United States may be successful in its attempt to hold Canadian polluters liable through EPA
initiated U.S. domestic litigation, extraterritorial application of U.S. environmental law creates
significant problems, and seriously encroaches upon Canadian sovereignty. Ultimately, the
national adjudication of cross-border disputes does not provide a long-term solution to
transboundary pollution. Part III explores an available,
20. Shaw M.N., International Law, Cambridge University Press, 4th edition, 1997, U.K., 595
underutilized international environmental law mechanism that the countries could potentially use
to effectively resolve the Trail smelter and similar disputes. To the extent that Canada and the
United States attempt to resolve disputes legally, rather than through diplomatic negotiation, the
best legal solution to those disputes may lie in international arbitration. International arbitration,
modeled after the famous Trail Smelter Arbitration, provides both a more diplomatically and

conceptually satisfying means of solving transboundary water pollution disputes than national
adjudication. Indeed, despite its contentiousness, the Trail smelter dispute provides a unique
opportunity to set the stage for renewed environmental cooperation between the United States
and its northern neighbor.'21
CONCLUSION:-

In this case Canada was held liable to the United States for the damages and injuries done by
fumes carried by the winds from a privately owned company of smelter in Canada and was
required to prevent such damages in future. The tribunal found it unnecessary to decide whether
the question should be answered on the basis of United States Law or the International Law,
since the law followed between the states of the United States in the manner of air pollution, is in
conformity with the general rules of International law. Pointing to the absence of international
decisions dealing with air pollution, the tribunal said, The nearest analogy is that of water
pollution, but again found no interrelation decisions. On both air and water pollution, the
tribunal found certain United States Supreme Court decisions which may be legitimately taken as
a guide in this field of international law, for it is reasonable to follow by analogy, in international
cases, precedent established by that court in dealing with controversies between the States of the
Union or with other controversies concerning the quasi-sovereign rights of that states, where no
contrary rule prevails in international law and no reason for rejecting such precedents can be
adduced from the limitations of sovereignty
21. Austen L. Parrish, TRAIL SMELTER DEJA VU: EXTRATERRITORIALITY,
INTERNATIONAL ENVIRONMENTAL LAW, AND THE SEARCH FOR SOLUTIONS TO
CANADIAN-U.S. TRANSBOUNDARY WATER POLLUTION DISPUTES, Boston University
Law Review, 2005, April. 2, 3.
inherent in the Constitution of the United States. The tribunal referred to one Swiss case, on
water pollution, Georgia vs Tennessee Copper Co.22 It concluded 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 of another or the properties or persons therein, when the case is of serious
consequences and the injury is established by clear and convincing evidence.'23
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
indemnity for such damage should be fixed in such a manner as the Governments should agree
upon.'24
The Trail Smelter arbitration also remains a historical anomaly; as such a dispute would likely
be addressed through domestic litigation. With liberalization of jurisdictional rules in both
countries and the growth of environmental enforcement opportunities under domestic law,
citizens no longer need to rely on their federal
22. 206 U S 230 (1907)
23. William W. Bishop, International Law cases and Materials, Little Brown & Company, 1971,
Canada, 399
24. http://www.unescap.org/DRPAD/VC/document/compendium/int7.htm
governments to seek a remedy for transboundary pollution. In fact, when citizens recently sought
to remedy transboundary water pollution from the same Trail Smelter facility at issue in the
original arbitration, they sued the company in United States federal court under United States
domestic environmental law.'25
25. Supra note 4 pg 13.

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Trail Smelter dispute

From Wikipedia, the free encyclopedia

Trail Smelter in 1929

The Trail Smelter dispute was a trans-boundary pollution case involving the federal
governments of both Canada and the United States, which eventually contributed to establishing
the polluter pays principle in the environmental law of transboundary pollution.
The smelter in Trail, British Columbia is operated by the Consolidated Mining and Smelting
Company (COMINCO) and has processed lead and zinc since 1896. Smoke from the smelter
caused damage to forests and crops in the surrounding area and also across the CanadaUS
border in Washington. The smoke from the smelter distressed residents, resulting in complaints
to COMINCO and demands for compensation. The dispute between the smelter operators and
affected landowners could not be resolved, resulting in the case being sent to an arbitration
tribunal. Negotiation and resulting litigation and arbitration was settled in 1941.[1]

Historical context
The Trail Smelter is located in Trail, British Columbia in the south-eastern corner of the
Kootenays, which is known as a mineral-rich area. The smelter was initially built by American
mining engineer and magnate F. Augustus Heinze in 1895 to treat lead and zinc ore materials
from nearby mines.[2] Prior to building the smelter, agents for Heinze signed a contract
guaranteeing 75,000 tons of ore would be provided by Rossland's LeRoi Mining Company.[2] The
smelter and the freight railway to the Rossland mines were bought by the Canadian Pacific
Railway (CPR) for $1,000,000 in 1898, when tracks were being laid into the town and during the
construction of a competing smelter in nearby Northport, Washington State.[2] The Trail Smelter
became a factor in the Canadian government's efforts to establish a smelting industry in Canada,
which had sent ores to American smelters for processing in the past.[2] The Trail Smelter
operation grew, adding other local mines to the portfolio, and were incorporated as the
Consolidated Mining and Smelting Company of Canada (COMINCO) in 1905, with continuing
support from the CPR.[3] When completed in 1895, the smelter could process 250 tons of ore
daily and had smoke stacks 150 feet high to help disperse the fumes.[2] During the arbitration that
followed the dispute, the Tribunal commented that by 1906 Trail had 'one of the best and largest
equipped smelting plants on this continent.'"[4] By 1916 the Trail Smelter was producing monthly
outputs of 4,700 tons of sulphur, but with post World War I expansion and technological

improvements to the smelting process, the company doubled the smelter's output throughout the
1920s and was producing 10,000 tons monthly by 1930.[2]
Most of Trail's male residents worked for the smelter and local businesses and farmers relied on
the income from smelter employee salaries. Smoke from the smelter was seen by many residents
as a sign of prosperity and continued employment; local residents commented that the "thicker
the smoke ascending from Smelter Hill the greater Trail's prosperity."[5] On the other hand, local
farmers complained about the effects of the toxic smoke on their crops, which eventually led to
arbitration with COMINCO between 1917 and 1924, and resulted to the assessment $600,000 in
fines being levied against the defendant. The fines were to serve as compensation for smoke
damage to crops and included COMINCO buying four complete farms (out of sixty farms
involved) closest to the stacks.[2][6] No government regulations of the smelter's output were
imposed on COMINCO following the 1924 decision.[6]
As a direct consequence of the local dispute and arbitration, COMINCO looked for ways to
reduce the smelter's smoke output while increasing the smelter's production.[6] The initial solution
involved increasing the height of the smoke stacks to 409 feet in 1926 in an effort to disperse the
smelter's smoke by pushing it higher into the atmosphere, but this local solution proved to be a
problem for their Washington neighbours.[6]

Dispute details
Major players

Smelter Management, 1928

The major players of the Trial Smelter dispute were the owners of the smelter, the Consolidated
Mining and Smelting Company of Canada (COMINCO), and the American residents (mostly
farmers and landowners who were affected by the smoke generated from the smelter). The
farmers and landowners in Washington who had a mutual concern for the smoke drifting from
the smelter, formed the Citizens' Protective Association (CPA) when their direct complaints to
COMINCO were not addressed.[6][6] Initially the regional governments became involved, both the
province of British Columbia and Washington State, but eventually the two federal governments

took leadership roles in the dispute because of the issue of national boundaries and
extraterritoriality.[6] Both governments were initially involved in the foundation of the
International Joint Commission (IJC) in 1909, which was later responsible for investigating and
then recommending a settlement for the alleged damages in the Trail case.[6] The transformation
of the smelter dispute into a foreign policy issue resulted in more institutions joining the dispute.
This included the Canada's National Research Council (NRC) and the American Smelting and
Refining Company, which each contributed scientific experts to assess the damages from the
smelter's smoke.[6]
Alleged damages

A growing concern in 1925 was the smoke drifting from the smelter across the border into
Washington, allegedly causing damages to crops and forests.[6] The smoke generated from the
smelter became the source of complaints from American residents. Complaints included: sulphur
dioxide gases in the form of smoke generated from the smelter was directed into the Columbia
River Valley by prevailing winds, scorching crops and accelerating forest loss.[7] Effects of the
smoke, as investigated by the US Department of Agriculture, included both "visible damage" in
terms of "burned leaves and declining soil productivity" and "invisible damage" which consisted
of "stunted growth and lower food value" for the crops.[6]
Initial efforts to resolve

After the complaints in 1925 regarding crop and forest destruction as a result of smoke from the
smelter, COMINCO accepted responsibility and offered to compensate the farmers who were
affected.[6] COMINCO also proposed installing fume-controlling technologies to limit future
damage and reduce the emissions of sulphur dioxide. The company had initially raised smoke
stacks to four hundred feet in an effort to increase the dispersion of pollutants; however, this had
resulted in prevailing winds moving the noxious fumes downwind to the inhabitants of the
Columbia River Valley, thereby making the situation worse.[6] The company also tried to offer
payments to the affected residents or even offered to purchase the land outright, which some
would have accepted. However, the company was denied this method of compensation because
of Washington State's prohibition of property ownership by foreigners.[6] This led to the official
petition by the farmers and landowners of Washington in 1927 for state and federal support
against the smelter, claiming the smoke was damaging United States lands.[6] In 1931, the IJC
awarded the farmers $350,000 in damages, but did not set guidelines for sulphur dioxide
emission reduction.[6] The compensation was far less than the plaintiffs had expected and the IJC
settlement was eventually rejected under the pressure of Washington's State Congressional
Delegation. The unsatisfactory result of the IJC decision led to the establishment of a threeperson Arbitral Tribunal to resolve the dispute in 1935.

Arbitration details
The arbitration case was originally between the farmers in the affected area and COMINCO;
however, what started off as the smelter versus agriculturalists evolved when regional and federal
agents became involved, resulting in the dispute becoming an international issue.[6]
Both sides employed a variety of experts to represent their interests,including scientists and
private or public enterprises. The United States used the U.S. State Department along with
scientists from the Department of Agriculture to conduct investigations about the effects of the
smelter's output on agriculture in the region.[8] The Canadian side turned to Canadas National
Research Council (NRC) and was granted access to the Salt Lake Research Station to conduct
research for the smelter's defence.[9] These experts would remain active actors throughout the
dispute. The decision laid down by the IJC awarded the farmers $350,000 in 1931 for the
damages incurred by the Trail Smelter; this was much less than the farmers had sought.[10]
Additionally, this was the first time the IJC ruled on a trans-boundary air pollution case.[6] The
U.S. State Department flatly rejected the decision and submitted for arbitration. This resulted in
diplomatic maneuvering which led to an Arbitral Tribunal; it was the Tribunals decision that
produced the most significant results in the dispute.
Tribunal

It was not until 1935 that a Convention was signed in Ottawa, Canada that legitimized the
Tribunal.[11] The Convention outlined 11 Articles under which the Tribunal would operate. Of the
11 articles, Article 3 outlines the four questions the Tribunal was to answer.
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?
2. In the event of the answer to the first part of the preceding question being is
positive, to what extent should there be compensation?
3. In 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 because of any
decision or decisions rendered by the Tribunal pursuant to the next two
preceding questions? [6]

The American lawyers argument can be summarized as trying to prove that invisible injury
occurred in the region. Large sums of money rested on the results of this case as the decision
would affect various other smelting projects across North America; as such, the lawyers
representing Cominco successfully limited the definition of damage to the actual, observable,
economic damage.[6] Lawyers on both sides were well practiced with substantial experience. R.C.
Judge Crowe, VP of Cominco and a Montreal Corporate Lawyer, and John E. Read

represented Cominco. The U.S. hired Jacob G. Metzger, a State Department attorney with
experience in negotiating international claims.[6] Metzger had a habit of not writing his arguments
down, and when he died in 1937 the American scientists and lawyers went into the hearing
unprepared.[6]
The United States had conducted experiments that suggested sulphur soaked into the soil;
however, the findings had limited standing in the arbitration because the data was from the early
1930s before the smelter implemented chemical recovery methods.[6] On the other hand, the
Canadians had the resources and the smelting industry supporting them. The experimental data
the American lawyers presented to the tribunal did not convince the arbitrators of invisible
injury theory.
Because of the Canadian lawyers' success in narrowing the definition to the actual, observable,
economic damage, the arbitrators awarded $78,000 in damages for 2 burns causing visible
damage in 1934 and 1936. The final settlement for damages was awarded in April 1938 and was
considered a victory for COMINCO.[6] When weighed against the backbone of the Trail
economy, as well as the smelter's contributions to the war effort, the economic contributions of
small-scale famers in a less fertile agricultural area were minimal.[6][12]

Reparations
The consequences of the arbitration came in two parts; one being economic compensation for the
local farmers of Steven's County, Washington and two effecting laws for transboundary air
pollution issues. Transboundary issues meaning those that stretch between states and nations.
COMINCO initially agreed to pay $350,000 in compensation to the local farmers for all damages
before January 1, 1932.[13] However, this offer was rejected by the local residents and farmers,
and the Washington government thus resulting in the arbitration. The arbiters final decisions
were based on evidence for visible injury to the farmers livelihood, the US' case was poorly
presented thus the tribunal's final decision in 1941 granted an additional $78,000 to the farmers
and also imposed COMINCO's duty of regulating the smoke output.[14]
The arbitration successfully imposed state responsibility for transnational air pollution. This set
precedence for no states being able to use their territories in such a way that would cause harm
by air pollution to another territory.[15] It was COMINCO's responsibility to regulate and control
the pollution their smelting industries created. As a result, the state enforced regulatory rules on
corporations to limit damaging emissions. For COMINCO, their company being subject to
emission standards meant potentially limiting the output of their smelter. For the better part of
twenty years the company fought every attempt to impose any sort of regulatory regime aimed at
production levels.[16] Only after they learned that they could recycle sulfur dioxide to make
fertilizer did they finally consent to emission standards.[17]

The arbitration was significant because it defined the limits of environmentally permissible
conduct between international boundaries: nations must not perpetrate significant harm to other
nations through pollution.

Precedents and long-term legacies

Transboundary international law precedents

Prior to the decision made by the Arbitral Tribunal on Trail, disputes over air pollution between
two countries had never been settled through arbitration, and the polluter pays principle had
never been applied in an international context.[18] When the Tribunal dealt with the details of the
Trail Smelter Arbitration, there was no existing international law that dealt with air pollution;[19]
therefore, a law dealing with international air pollution was modelled after U.S. state laws, with
the Tribunal referring to a number of cases in the U.S. that involved air pollution between
multiple states.[20]
During the Tribunal's decision-making, there was also confusion between defining 'damage'
versus 'damages' when it came time to decide on an outcome; the Tribunal took 'damage' to mean
'damages' as in the monetary value lost by smoke pollution instead of as direct damage to the
land.[21] Because of this, Canada's responsibility for the conduct of the smelter became making
sure that the smelter did not cause any more smoke 'damage' to U.S. soil. The American interstate law precedent caused a stir again in 2003 when the Colville Confederated Tribes launched a
complaint against COMINCO for polluting Lake Roosevelt. Douglas Horswill, Senior Vice
President for Teck Resources, stated that "in the U.S. legal process...Teck COMINCO would not
be able to use the fact that it was operating with valid permits in its defence [because it is a
Canadian company], whereas a U.S. company could";[22] Horswill's media statement reflects the
tensions created by formulating an international law based on American inter-state practices.
When the International Law Commission (ILC) "adopted a series of Draft Articles on Prevention
of Transboundary Harm from Hazardous Activities",[23] a fundamental problem was in defining
nations as states, which was the result of applying the existing U.S. model of inter-state
environmental laws to an international conflict. The Draft Articles contained a collection of
provisions that focused on six points:[24]

prevention of transboundary harm,

cooperation to prevent significant harm and reduce risk,

the exercise of regulatory control by states of activities on their territory

through prior authorizations,

environmental impact assessment,

notification, and

consultation

Since polluting nations were to be held responsible for harms caused to another nation's
environment, this was not applicable in the arbitration because the players involved were subgroups of each nation's population and the populus that was most affected were not the sovereign
states but the sub-groups. Although Canada accepted responsibility for the actions of the
smelting plant, conflict resolution put the onus on Canada to compensate for COMINCO's past
pollution rather than forcing COMINCO to prevent future harm to U.S. soil. The legacy of this
decision includes the eventual creation of regulatory regimes to prevent environmental
degradation, which allow nations to put states in charge of taking positive steps to control
pollution. The failure by states to meet these responsibilities means they are breaching
international law.[25]
Some scholars do not see the case as setting a precedent because the unique circumstances
surrounding the Trail smelter have been articulated and discussed multiple times, therefore the
arguments that arise for transboundary international law are divorced from the context they are
derived from;[26] this distorts the decisions made in cases like the Trail Arbitration. For the
arbitration, the decisions that appear to be the focus of literature on transboundary international
law precedents are sub-articles 2 and 4 from Article 3 of the International Joint Commission's
(IJC) recommendations.[27]