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Rereading Trail Smelter*

Published online by Cambridge University Press:  09 March 2016

Karin Mickelson
Karin Mickelson*
Affiliation:
Faculty of Law, University of British Columbia
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Notes and Comments/ Notes et commentaries
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 31 , 1994 , pp. 219 - 234
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1994

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References

1 Read, J., “The Trail Smelter Dispute,” 1 Can. Y.B. Int’l L. 213 (1963).Google Scholar

2 Trail Smelter Arbitration| (United States v. Canada), 3 R.I.A.A. 1905 (includes Convention for Settlement of Difficulties Arising from Operation of Smelter at Trail, B. C. and the two decisions of the Arbitral Tribunal). Decision of Apr. 16, 1938: (193g) 33 AJIL 182. Decision of Mar. 11, 1941: ( 1941 ) 35 AJIL 684. All further references are to the AJIL.

3 Writing in 1971, one scholar went so far as to say, “Every discussion of the general international law relating to pollution starts, and must end, with a mention of the Trail Smelter Arbitration”: Rubin, A.P., “Pollution by Analogy: The Trail Smelter Arbitration,” 50 Oregon L. Rev. 259 (1971).Google Scholar Though international environmental law has obviously undergone tremendous development since that time, Trail Smelter remains a landmark. A recent treatise on international environmental law asserts that “the arbitral judgment… in the Trail Smelter case is considered as having laid out the foundations of international environmental law, at least regarding transfrontier pollution.” Kiss, A. and Shelton, D., International Environmental Law, 107 (London: Graham & Trotman, 1991).Google Scholar

4 See especially Rubin, ibid.

5 U.K. v. Albania (1949), ICJ Rep. 4.

6 Spain v. France, 12 R.I.A.A. 285 at 303 (text of Tribunal’s decision in French); (1957) 24 Int’l L. Rep. 101; (1959) 53 AJIL 156. All further references are to the AJIL.

7 Quentin-Baxter, R.Q., “Preliminary Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law,” UN Doc. A/CN.4/334 and Add. 1 and 2, 2:1 Yearbook of the International Law Commission 1980, 247 at 258 ( New York: 1982).Google Scholar

8 1941 decision, supra note 2, at 716.

9 Corfu Channel, supra note 5, at 22–23.

10 Lake Lanoux, supra note 6, at 160.

11 The Trail Smelter formulation of the principle, for example, includes the requirements that the case be of “serious consequence” and that the injury be “established by clear and convincing evidence”; not every case of transbound-ary environmental damage will give rise to liability on the part of the state under whose jurisdiction the allegedly harmful activity occurred. While the definition of “serious consequence” is open to question, it is clear that at the very least there is a de minimus requirement. Rubin criticizes Trail Smelter for precisely this reason; he argues that the acceptance of the Trail Smelter formulation in the context of air pollution has led to some degree of certainty in these matters that “favors the polluter in continuing his polluting activities to continue as long as they do not cause ‘damage’ in the sense of direct injury measurable in money terms to the industrial or agricultural production of a second state”: supra note 3, at 272. In Corfu Channel, the ICJ’s use of the term “knowingly” ties the obligation to the state’s knowledge of the activity alleged to be contrary to the rights of other states; it should also be borne in mind that the facts of the case involved injury suffered by a British ship within the Albanian territorial sea. Moreover, the reference to the “rights of other states” indicates that an affected state must show that more than a mere “interest” has been impaired. The reference made in passing by the Tribunal in Lake Lanoux to a potential Spanish claim if impairment of water quality were at issue is too brief to give any indication of the scope of the principle being invoked, but the remark must be read in light of the fact that the decision involved rights under a treaty and the importance accorded by the Tribunal to balancing the interests of states. In particular, it must be read in the light of statements such as those in which the Tribunal notes that it has not found either in the Treaty or in customary international law “any rule that prohibits one State, acting to safeguard its legitimate interests, to put itself in a situation that would permit it in effect, in violation of its international pledges, to injure a neighboring State even seriously”: Lake Lanoux, supra note 6, at 163. It is also questionable whether the Tribual would have made its offhand remark about water quality under customary international law, in the absence of a clear treaty regime purporting to regulate the interests of the two states involved. Whatever the Tribunal may have meant by its oblique reference to Spain’s possible cause for complaint, its decision cannot be taken as authority for a broadly defined notion of international liability, any more than the decisions in Trail Smelter or Corfu Channel can.

12 In particular, two factors must be taken into account. First, and most importantly, this was a case in which liability was not even at issue, because the Convention setting up the Arbitral Tribunal involved an acknowledgment of Canadian liability. In fact, as one writer points out, “it was the agreement of the parties as to Canadian liability for ‘damages’ that is the great precedent of the case, not the decision of the tribunal itself”: Rubin, supra note 3, at 264. In his 1963 article, Read gives an account of how the Canadian “admission” of liability was intended to get around some of the obstacles that international law places on the bringing of international claims. Read, supra note 1, at 222–23. Second, the Tribunal was directed to apply United States law both to the question of whether damage had occurred and to the measure of compensation payable by Canada. Read indicates that U.S. law was chosen because of concern on the part of the Canadian negotiators that “the Tribunal might be impressed by the law of nuisance as set forth in precedents binding on Canadian courts. Those precedents were unfavourable to industrial enterprise, and, if applied, might be disastrous to the Smelter and to the economy of an important part of British Columbia. On the other hand, the decisions in the courts of the United States, including the Supreme Court cases, were much more evenly balanced in their effect on industrial and agricultural enterprise”: ibid., 227. While the Tribunal itself asserted that the requirements arising under the law of the United States were “in conformity with the general rules of international law” (1941 decision, supra note 2, at 713), this part of the decision has been criticized. See, e.g., Rubin at 267. As ultimately resolved between the two states, then, the application of “the principles of international law” was subject to clear limitations; even if international law did operate on the basis of precedent, this decision would be of very narrow applicability.

13 See, e.g., Birnie, P.W. and Boyle, A.E., International Law and tile Environment, 145 (Oxford: Clarendon Press, 1992)Google Scholar; Bourne, C.B., “The International Law Commission’s Draft Articles on the Law of International Watercourses: Principles and Planned Measures,” 3 Colo. J. Int’l Envtl. L. & Pol’y 65 at 84–88 (1992).Google Scholar As one scholar aptly put it, Trail Smelter ’ ’has become accepted — and, to a certain extent, mythologized — as a landmark case in international law”: Munton, D., “Dependence and Interdependence in Transboundary Environmental Relations,” 36:1 Int’l J. 139 at 140 (1980–81).Google Scholar This characterization may apply equally to the other decisions.

14 Rubin, supra note 3, at 259.

15 See, e.g., Kiss and Shelton, supra note 3, at 107–108.

16 1938 decision, supra note 2, at 189–90.

17 Ibid., 190. Comineo had already had to deal with complaints from Canadian farmers, but had dealt with these through the purchase of easements. See Dinwoodie, D.H., “The politics of international pollution control: the Trail Smelter case,” 1980–81 Int’l J. 219 at 220 (1980–81).Google Scholar

18 As constituted under the 1935 Convention, the Tribunal was called upon to render its final decision within three months of the conclusion of the proceedings. It does not seem to have taken the members of the Tribunal long to decide that to render a decision within that period of time would be problematic if not impossible; in the event, the governments were notified that “unless the time limit should be extended, the Tribunal would be forced to give a permanent decision on April 2, 1938, on the basis of data which it considered inadequate and unsatisfactory”: 1938 decision, ibid., 184.

19 It is worth bearing in mind that before hearing arguments by counsel in Ottawa from Oct. 12–19, 1937, the Tribunal did a substantial amount of background preparation. The members conducted inspections both of the area alleged to have been damaged and of the smelter site: ibid., 183. “Sessions for the reception and consideration of such evidence, oral and documentary, as was presented by the Governments or by interested parties, as provided in Article VIII,” were held not only in Ottawa and Washington D.C. but also in Spokane, Washington: ibid.

20 Much of this background information is reproduced in the 1941 decision, supra note 2, at 688–96.

21 1938 decision, supra note 2, at 184.

22 Dinwoodie, supra note 17, asserts that the Commission was “stymied by contradictory expert opinion” (at 226). He notes that these experts blamed the failure of the region’s agricultural economy on “a variety of causes unrelated to the Trail emissions: earlier smelter operations at Northport, forest fires, insect infestations, inadequate soil composition, and poor farming practices” (at 226–27).

23 1938 decision, supra note 2, at igo.

24 Dinwoodie, supra note 17, at 219.

25 There were indications that it was in fact unproductive. For this reason, Cominco’s view during the early stages of the dispute was that the whole affair constituted “an attempt at holdup by fanners in a nearly hopeless section who have come to think that they can get much more out of farming this rich corporation across the boundary than from farming their farms, and who are endeavoring to use the Governments at Washington and Ottawa to threaten a complete cessation of operations and thus force extravagant indemnity”: ibid., 222, note 5.

26 Ibid., 221.

27 Regarding the question of why there was not an insistence on the “absolute cessation” of damage, Read notes, “[t]he acceptance of the principle of absolute cessation of damage might have shut down the Trail Smelter; but it would also have brought Detroit, Buffalo and Niagara Falls to an untimelyend”: supra note 1, at 224–25.

28 1941 decision, supra note 2, at 685 (emphasis added).

29 See the description of the circumstances leading up to the 1935 Convention in Dinwoodie, supra note 17, at 227–33.

30 As it is described by Rubin, supra note 3, at 275.

31 Writing in the early 1970s, Ian Brownlie referred to the “overworked Trail Smelter arbitration, which is actually a rather modest contribution to the jurisprudence — as it was bound to be in view of the restricted terms of reference with which the Tribunal worked”: “A Survey of International Customary Rules of Environmental Protection” in Teclaff, L.A. and Utton, A.E. (eds.), International Environmental Law 1 at 2 (New York: Praeger Publishers, 1974).Google Scholar See also Handl, G., “Balancing of Interests and International Liability for the Pollution of International Watercourses: Customary Principles of Law Revisited,” 3 Can. Y.B. Int’l L. 156 at 167–8 (1975)Google Scholar, in which Trail Smelter is referred to as a “much cited, and with regard to its international legal relevance also often overestimated, decision.”

32 Dinwoodie, supra note 17, at 234.

33 Dinwoodie States, “[p]oIiticaI and economic influences in both countries heightened the bitterness of this air pollution controversy, prolonged it for a decade, and eventually determined the diplomatic agreement providing for settlement”: ibid., 219.

34 For a discussion of the formal status of international judicial and arbitral decisions as sources of international law, see Fitzmaurice, G.G., “Some Problems Regarding the Formal Sources of International Law,” in Symbolae Verzijl, 153 at 168–73 (The Hague: Martinus Nijhoff, 1958)Google Scholar; Sorensen, M., “Les Precedents Judiciares” in Les Sources du Droit International, c. 7 (Copenhagen: Einar Munksgaard, 1946).Google Scholar This issue has not received a great deal of attention from scholars during the past three decades. Most are content to cite Art. 38( 1 ) (d) of the statute of the ICJ, according to which judicial decisions constitute “subsidiary means for the determination of rules of law” rather than being considered sources of international law in themselves (this is made subject to Art. 59, which provides that a decision of the Court has binding force only as between the parties to the matter and in respect of that particular case). It is widely acknowledged that the decisions of the ICJ and its predecessor in particular, and those of other international judicial and arbitral bodies to a lesser degree, have significant persuasive value. See, e.g., Rosenne, S., Practice and Methods of International Law, 91–92 (London: Oceana Publications, 1984). Google Scholar

35 Fitzmaurice, ibid., 172.

36 The Tribunal had to tread carefully in its treatment of the damage described by the expert witnesses. The Tribunal notes that “the number of experiments was still too limited to warrant in all cases so positive conclusions as witnesses were inclined to draw from them” (1938 decision, supra note 2, at 194), and goes on to state (at 195): “[a]s is usual in this type of case, though the poor condition of the trees was not controverted, experts were in disagreement as to the cause — witnesses for the United States generally finding the principal cause of injury to be sulphur dioxide fumigations, and witnesses for Canada generally attributing the injury principally to ravages of insects, diseases, winter and summer droughts, unwise methods of logging, and forest and ground fires.” The Tribunal adds diplomatically, “[i]t is possible that each side laid somewhat too great emphasis on the causes for which it contended”: ibid. It goes on to point out that while it had the highest regard for the honesty and sincerity of the witnesses, these may very well have been influenced by the position of the governments that had hired them. As those familiar with current attempts to grapple with the question of environmental damage are all too well aware, the comments of the Tribunal are of more than historic interest.