TRAIL SMELTER CASE (USA v.

CANADA)
● In the light of the answer to the preceding question, what
III R.I.A.A.1905| April 16, 1938, and March 11, 1941 | ​Chapter 17:
measures or régime, if any, should be adopted or
International Environmental Law
maintained by the Trail Smelter?
JL Santiago & Kobe Veneracion
● 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?

Petitioners: ​USA (Only putting the relevant syllabus topics here; See Ratio for other
irrelevant issues)
Respondents: ​CANADA
The Tribunal used US jurisprudence to answer whether the Trail
Recit Ready:
Smelter is required to refrain from causing damage. ​A State owes
The present controversy is between two Governments involving at all times a duty to protect other States against injurious acts
damage occurring in the territory of one of them (the United by individuals from within its jurisdiction​. US jurisprudence held
States of America) and alleged to be due to the Consolidated that before a court can be moved to exercise its extraordinary
Mining and Smelting Company of Canada who acquired a smelter power under the Constitution to control the conduct of one State
plant in Trail. at the suit of another, the ​threatened invasion of rights must be
of serious magnitude and it must be established by clear and
From 1925, at least, to the end of 1931, damage occurred in the convincing evidence​. Thus, based on this, the Tribunal held that
State of Washington in the pacific coast of the US resulting from no State has the right to use or permit the use of its territory in
the sulphur dioxide emitted from the Trail Smelter. such a manner as to cause injury by fumes in or to the territory
Hence, a duty was imposed upon the Tribunal by the Convention of another or the properties or persons therein, when the case is
entered into by the parties to "finally decide" the following of serious consequence and the injury is established by clear and
questions: convincing evidence. The Dominion of Canada is responsible in
international law for the conduct of the Trail Smelter.
● Whether damage caused by the Trail Smelter in the State
of Washington has occurred since the first day of Doctrine
January, 1932, and, if so, what indemnity should be paid [Doctrine CH 17 of Akehurst]​: no State may knowingly allow its
therefor? territory to be used in a manner that would cause serious
● In the event of the answer to the first part of the physical injury to the environment of another State. ​(Principle of
preceding question being in the affirmative, ​whether the Sovereignty and Good Neighborliness hehe tb NatRes)
Trail Smelter should be required to refrain from causing
damage in the State of Washington in the future and, if
so, to what extent?
FACTS​:
Context before reading the facts: 2. [HISTORICAL FACTS]: In 1906, the Consolidated Mining and
Smelting Company of Canada, Limited, obtained a charter of
Smelting is the process by which a metal is obtained, either as the
incorporation from the Canadian authorities, and that
element or as a simple compound, from its ore by heating beyond
company acquired the smelter plant at Trail (an already
the melting point. A smelter is basically an installation or factory for
existing smelter plant with only small operations) as it then
smelting a metal from its ore.
existed.
Smelting is known to be a major cause of pollution in the 3. Since that time, the Canadian Company, without
environment. The majority of the pollution is caused by air interruption, has operated the Smelter, and from time to
emissions time has greatly added to the plant until it has become one
of the best and largest equipped smelting plants on this
Trail ​in this case is a place located in the province of Canada. continent
1. The present controversy is between two Governments 4. In 1925 and 1927, two stacks of the plant were erected to
involving damage occurring in the territory of one of them 409 feet in height and the Smelter greatly increased its daily
(the United States of America) and alleged to be due to an smelting of zinc and lead ores. This increased product
agency of the other (the Dominion of Canada), for which resulted in more sulphur dioxide fumes and higher
damage the latter may assume international responsibility. concentrations being emitted into the air; and it is claimed
2. A duty was imposed upon the Tribunal by the Convention by one Government (though denied by the other) that the
entered into by the parties to "finally decide" the following added height of the stacks increased the area of damage in
questions: the United States
a. Whether damage caused by the Trail Smelter in the 5. From 1925, at least, to the end of 1931, damage occurred in
State of Washington has occurred since the first the State of Washington in the pacific coast of the US (NOT
day of January, 1932, and, if so, what indemnity Washington DC which is in the east coast of the US),
should be paid therefor? resulting from the sulphur dioxide emitted from the Trail
b. In the event of the answer to the first part of the Smelter.
preceding question being in the affirmative, 6. It has been contended that the Canadian Corporation was
whether the Trail Smelter should be required to unable to acquire ownership or smoke easements over real
refrain from causing damage in the State of estate, in the State of Washington, in any manner.
Washington in the future and, if so, to what extent? 7. The questions mentioned above (check facts #2) were then
c. In the light of the answer to the preceding question, submitted and are to be considered by the tribunal. ​(more
what measures or régime, if any, should be adopted facts were provided as to the specific considerations and
or maintained by the Trail Smelter? the construction of these questions by the Tribunal but I
d. What indemnity or compensation, if any, should be don’t think relevant sila and super haba lang kasi ng
paid on account of any decision or decisions specifics)
rendered by the Tribunal pursuant to the next two ISSUE/S AND HELD:
preceding questions?
 1. GENERAL ISSUE: W/N Canada had the responsibility of ● The Tribunal then considered whether the first decision had
protecting other states against harmful acts by individuals already obtained ​res judicata​.
from within its jurisdiction at all times? ​YES ● That the sanctity of ​res judicata ​attaches to a final decision
2. SPECIFIC ISSUES: of an international tribunal is an essential and settled rule of
a. Whether damage caused by the Trail Smelter in the international law.
State of Washington has occurred since the first ● If it is true that international relations based on law and
day of January, 1932, and, if so, what indemnity justice require arbitral or judicial adjudication of
should be paid therefor? international disputes, it is equally true that such
b. In the event of the answer to the first part of the adjudication must, in principle, remain unchallenged, if it is
preceding question being in the affirmative, to be effective to that end.
whether the Trail Smelter should be required to ● There is no doubt that in the present case, there is res
refrain from causing damage in the State of judicata. The three traditional elements for identification:
Washington in the future and, if so, to what parties, object and cause are the same.
extent? ● While obtaining ​res judicata,​ the tribunal still disallowed
c. In the light of the answer to the preceding question, revision of the judgment ​(there was a petition for revision
what measures or régime, if any, should be adopted filed by USA) ​because the proper criterion lies in a
or maintained by the Trail Smelter? distinction not between "essential" errors in law and other
d. What indemnity or compensation, if any, should be such errors, but between "manifest" errors, and there were
paid on account of any decision or decisions no such manifest errors in the previous decision.
rendered by the Tribunal pursuant to the next two ● USA then claims that damage has occurred in the State of
preceding questions? Washington since October 1, 1937, as a consequence of the
emission of sul- phur dioxide by the smelters of the
RATIO​: Consolidated Mining and Smelting Company at Trail, B.C.,
and that an indemnity in the sum of $34,807 should be paid
I. On the issue of damage caused: ​(Not important) therefor.
● USA claims that it is entitled to be indemnified in the sum of ● The report of the Tribunal covers the period until Oct. 1,
$89,655, with interest at the rate of five per centum per 1940.
annum. ● Based on all the different evidence presented (i.e.
● This claim was disallowed by the Tribunal in its April 16, testimonies, investigations by scientists, etc.), the United
1938 decision. States has failed to prove that any fumigation between
● The indemnity found by the Tribunal to be due for damage October 1, 1937, and October 1, 1940, has caused injury to
which had occurred since the first day of January, 1932, up crops, trees or otherwise.
to October 1, 1937, ​i.e., ​$78,000, was paid by the Dominion ● Then, USA again claims that it is entitled to be indemnified
of Canada to the United States and received by the latter in the sum of $38,657.79 with interest at the rate of five per
without reservations. centum per annum from the end of each fiscal year in which
 the several amounts were expended to the date of the prepared deliberately to maintain against
Tribunal's final decision. ​(Basically costs for judgment) all considerations on the other side.”
● The damage for which indemnity should be paid is the ○ State of New York v. State of New Jersey​:
damage caused by the Trail Smelter in the State of ■ “Before this court can be moved to exercise
Washington. Investigations in the field took place there and its extraordinary power under the
it happens that experiments were conducted in that State. Constitution to control the conduct of one
But these investigations were conducted by Federal State at the suit of another, the threatened
agencies. invasion of rights must be of serious
● In the absence of authority established by settled magnitude and it must be established by
precedents, the Tribunal is of opinion that, where an clear and convincing evidence."
arbitral tribunal is requested to award the expenses of a ○ State of Georgia v. Tennessee Copper Company and
Government incurred in preparing proof to support its Ducktown Sulphur, Copper and Iron Company,
claim, particularly a claim for damage to the national Limited:​
territory, the intent to enable the Tribunal to do so should ■ This was an air pollution case.
appear, either from the express language of the instrument ■ “It is a fair and reasonable demand on the
which sets up the arbitral tribunal or as a necessary part of a sovereign that the air over its
implication from its provision. Neither such express territory should not be polluted on a great
language nor implication is present in this case. 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
II. On the issue of refraining from causing damage:
further destroyed or threatened by the act
(SYLLABUS TOPIC)
of persons beyond its control, that the
● A ​State owes at all times a duty to protect other States
crops and orchards on its hills should not be
against injurious acts by individuals from within its
endangered from the same source.”
jurisdiction​. But the real difficulty often arises when it
■ “​It (the State) has the last word as to
comes to determine what ​is deemed to constitute an
whether its mountains shall be stripped of
injurious act.
their forests and its inhabitants shall
● The Tribunal used US jurisprudence about water and air
breathe pure air.​”
pollution to guide it in answering the question.
● Based on these decisions, the Court held that under the
○ State of Missouri v. State of Illinois:​
principles of international law, as well as of the law of the
■ "Before this court ought to intervene, the
United States, ​no State has the right to use or permit the
case should be of serious magnitude, clearly
use of its territory in such a manner as to cause injury by
and fully proved, and the principle to be
fumes in or to the territory of another or the properties or
applied should be one which the court is
persons therein, when the case is of serious consequence
 and the injury is established by clear and convincing Washington, the operation of the Smelter and the
evidence. maximum emission of sulphur dioxide from its stacks shall
● Considering the circumstances of the case, the Tribunal be regulated.
holds that the Dominion of Canada is responsible in
international law for the conduct of the Trail Smelter.
● So long as the present conditions in the Columbia River
IV. On the issue of indemnity or compensation:
Valley prevail, the Trail Smelter shall be required to refrain
● If any damage as defined under Question No. 2 shall have
from causing any damage through fumes in the State of
occurred since October 1, 1940, or shall occur in the future,
Washington; the damage herein referred to and its extent
whether through failure on the part of the Smelter to
being such as would be recoverable under the decisions of
comply with the regulations herein prescribed or
the courts of the United States in suits between private
notwithstanding the maintenance of the régime, an
individuals.
indemnity shall be paid for such damage but only when and
if the two Governments shall make arrangements for the
disposition of claims for indemnity under the provisions of
III. On the issue of regimes or measures to be adopted: ​(Not Article XI of the Convention.
important because the Tribunal only discussed the specific ● If as a consequence of the decision of the Tribunal in its
ways to cut out the sulfur for every season) answers to Question No. 2 and Question No. 3, the United
● The Tribunal now decides that a régime or measure of States shall find it necessary to maintain in the future an
control shall be applied to the operations of the Smelter and agent or agents in the area in order to ascertain whether
shall remain in full force unless and until modified. damage shall have occurred in spite of the régime
● The Tribunal directed a technical staff to study the influence prescribed herein, the reasonable cost of such
of meteorological conditions on dispersion of the investigations not in excess of $7,500 in any one year shall
sulphurous gases emitted from the stacks of the smelter. be paid to the United States as a compensation, but only if
● The investigations during the experimental period make it and when the two Governments determine that damage
clear that in the carrying out of a regime, automatic has occurred in the year in question, due to the operation of
recorders should be located and maintained for the purpose the Smelter, and "disposition of claims for indemnity for
of aiding in control of the emission of fumes at the Smelter damage" has been made by the two Governments.
and to provide data for observation of the effect of the ● In no case shall the aforesaid compensation be payable in
controls on fumigations. excess of the indemnity or damage; and it is understood
● The Tribunal is of opinion that the régime should be given that such payment is hereby directed by the Tribunal only as
an uninterrupted test through at least two growing periods a compensation to be paid on account of the answers of the
and one non-growing period. Tribunal to Question No. 2 and Question No. 3 (as provided
● In order to prevent the occurrence of sulphur dioxide in the for in Question No. 4) and ​not as any part of indemnity for
atmosphere in amounts, both as to concentration, duration
and frequency, capable of causing damage in the State of
the damage to be ascertained and to be determined upon
by the two Governments.