Trail Smelter Case (United States v Canada) PDF

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Trail Smelter Case Review....

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Topic: Trail Smelter Case Review Course Title: Environmental Law Course Code: LAW 402 Date of Submission: 30-11-2020

Submitted to: Ferdousi Begum Senior Lecturer Department of Law Daffodil International University

Submitted by: Name: Abdullah Al Rehan ID: 181-26-1218 Batch and Section: 32(B) Semester: Fall 20

Trail Smelter Case (United States v Canada) Introduction: Trial Smelter case is one of the early cases of International environmental law, which states that no state has the right to use it territory in a way that can inflict injury to the territory of another state. “The case involved air pollution that occurred in Trail, British Columbia and affect or causes destruction to farmlands in South of the CanadaUnited States border in Washington State. At the demand of the affected farmers, whose negotiations with the company in charge of the smelter had not been successful, the U.S. government decided to pursue diplomatic avenues. Both the U.S. and Canada initially agreed to present the case before the International Joint Commission(IJC) an institution that had jurisdiction to consider issues occurring along the common border. O The final tribunal occurred in 1941, it held that “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. Procedural History: The first significant development in the Trail Smelter dispute was its transition from a dispute between two private parties into a dispute between two states. One of the circumstances that led to the internationalizing of the dispute is the above mentioned US/Canadian border. In the past the activities at the Cominco Smelter had affected Canadian property. 1.

Proceedings before national courts:- At first glance it seems no more than logical that the issue at hand in the Trail Smelter arbitration, being a private dispute, should be put before a national court. On the surface it seems there were two conceivable scenarios in which national jurisdiction could have played a role. The first scenario involved accessing the courts in the state where the damage of the pollution was felt, ie the US farmers bringing a claim in a US court. This would mean that a foreign company was sued for damages in a US court. The second scenario involved bringing a claim in the court of the state where the pollution originated, ie the US farmers bringing a claim in a Canadian court. In this case foreign nationals would be bringing a case against a national company in a Canadian co-court.

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United States court:- As mentioned above one possible approach to resolving the Trail Smelter dispute was for the US farmers to bring their case in front of a US court. At the time the Trail Smelter dispute took place the farmers did not succeed in following this course of action. Several obstacles, both legal and political, explain the inability of the farmers to have their claim heard by a US court. However, these obstacles have not remained static in the last 70 years; some have disappeared while others have changed.

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Canadian court:- The US farmers bringing their claim before a Canadian court is the second manner in which this dispute could reach a resolution in a national court. Above it has been demonstrated that, for a victim of a Trail Smelter type dispute, to bring a claim in his or her own country raises several difficult issues. The barriers provided by the issue of personal jurisdiction, extraterritorial application of laws and finally finding enforcement of a jurisdiction in the court of the defendant, although they are not insurmountable, are certainly not to be taken lightly. In fact, the difficulties associated with bringing a transfrontier pollution case before the court where the injury occurred led professor Lammers to state, specifically with respect to the enforcement issue, that: "Indeed the obstacles may be such that instead of having resort to its own courts and all the practical advantages which such a resort would imply, the plaintiff would still be better off instituting proceedings against the defendant in the courts of the country of origin of the interference".

Fact: The dispute arose as a result of damage occurring in the territory of the US due to activity of a smelter situated in Canada. The damage arose from sulphur dioxide fumes which were emitted from the smelter. It was claimed that the height of stacks increased the area of damage in the US. In 1927 the US proposed that the matter be referred to the International Joint Commission for investigation. Its report was presented in 1931. It determined that up to 1 January 1932 the damages incurred by the US should be compensated in the sum of US $350,000. Two years after this Report the US indicated to Canada that damage was still occurring and negotiations were renewed leading to the signing of the Convention. Legal Issues: 1. Whether damage caused by the Trail Smelter has occurred since 1 January 1932, and if so, what indemnity should be paid therefore? 2. Whether the Trail Smelter should be required to refrain from causing damage in the future and, if so, to what extent? 3. What measures or regime should be adopted or maintained by the Trail Smelter? 4. What indemnity or compensation should be paid on account of any decisions rendered by the Tribunal? Decisions of the judges: Indemnity and compensation must be paid for UD$ 78.000 Next cases would rely on the decisions of the Supreme Court of U.S. 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. Canada was responsible in international law for the conduct of the Trail Smelter. At the end, Canada paid the United States US$428,000 for damages plus probably around US$50,000 to pay for scientists and equipment to monitor sulfur emissions at Trail from 1937 to 1942.

Analysis: The Tribunal attempted at finding a balanced solution. The smelter was able to continue operations and the farmers were no longer harmed by the smoke and received appropriate compensation. Sovereignty was the general goal which is illustrated in the language of the decision. The final decision of the Tribunal held that the Dominion of Canada is responsible in international law for the actions of the smelter (Trail Smelter Arbitration, 1941). The Tribunal declared that “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” (Trail Smelter Arbitration, 1941, emphasis mine). These are the famed words of the Trail smelter arbitration and sum up the relevance of this case. A state can pollute its own land as much as it wants as long as it abides by law. Once that pollution crosses an international boundary though, and is of serious consequence, the state has violated the sovereignty principle of international law.The Tribunal established that the injury to cleared and uncleared lands was serious enough to warrant compensation. It did not find that the damage on livestock and the property in the town of Northport was serious enough to be compensated for. What can be taken away from this is that proving damage was caused by the pollutant is not enough. It must be proved that the damage is serious. The definition a court gives to “serious” is arbitrary and depends on the circumstances and the court.It should be stated that the decision of the court was not meant to impose legally binding obligations on both parties. The decisions reflect an aspiration, or a principle of the international justice system. There are two principles that are often discussed in light of this case. The first was established in the provision above, that a state has an obligation to prevent transboundary harm. The second is referred to as the polluter pays principle. The Tribunal used previous United States Supreme Court decisions to help decide what route to take in deciding this case. The Tribunal used the principle set up in United States Supreme Court in Story Parchment Company v. Paterson Parchment Paper Company (1931) that relief must be provided for the injured person and accountability to the wrongdoer. Furthermore in the absence of certainty it is just for Juries to act on reasonable inference as well as direct proof (Trail Smelter Arbitration, 1938). This remedy came in two forms, each of which put the financial burden on Consolidated and Canada, the polluters. The first remedy was direct monetary compensation to the farmers. The second remedy was changing the way operations took place at the smelter to reduce the amount of harmful chemicals emitted during processing.It could also be argued as an appropriate and fair decision because it preserved economic interests while ending the problem that had been presented.

Summary: This case was truly a landmark case in term of international law. Never before had there been decision a by the World Court or any other international justice system regarding an instance so remote and localized.The farmers of Northport probably had no idea that they were making history. What started as a grassroots effort to rid the area of noxious smoke ended in a case cited directly or indirectly in countless environmental law cases. Those involved in the case were not trying to make history. The farmers were merely seeking compensation for what they saw as a violation of their rights. The wrongdoer, Consolidated Mining and Smelting Limited, were definitely not trying to make history. Consolidated was doing everything they could to squash the issue and keep it as low key and local as possible. Due to the geographic nature of the dispute these goals were not possible and history was effectively made as the dispute went into the hands of international law institutions. The results of this case are pivotal to international environmental law. This case put into words the unspoken notion of transboundary harm and a nation’s obligation to do everything they can to prevent it. Furthermore, the results of this dispute put definitive blame on the polluter and established that the punishment would be whatever payment is necessary to remedy the harm....