State Responsibility and the Development of Int'l Environmental Law

Case: The Trail Smelter Case (1905, UN)

Summary: There was a smelter in Canada, and US alleged that fumes from the
smelter were carried downriver several miles to Washington State, were it caused a
nuisance (pollution). A tribunal was set up to try the case, and it concluded that
Canada was responsible to the US for transboundary pollution and owed damages.
○ How tribunal was set up
§ Both countries agreed to each provide 1 member of the tribunal, and
to choose jointly a chairman who was a national of neither state. So, there was a
Canadian member, an American member, and the chairman was Belgian.

Notes

• Factory in Canada causes air pollution from the smelting, and is blowing down
into Washington state and ruining crops.
• Why are they in front of a tribunal?
○ Relevant law - CIL and law of US
§ No state can allow any companies to engage in activities that harm
other countries
§ Originally they looked at CIL and int'l decisions, but no precedent
that they could look at that was relevant
§ Tribunal relied heavily on US law. Partly b/c no CIL (above), and
also b/c of US/Canadian convention
□ Tribunal exists b/c of the Convention - says that they will go
to tribunal if there is a dispute
□ Convention says they will look at US law
○ US law is particularly fitting - many analogous cases
(intrastate cases in US)
• 2 questions here:
○ Whether or not, and how much, Canada would owe for previous pollution
§ After a certain date, no more pollution
○ Going forward, can there be some type of injunction
§ If they know of these risks and conditions, Trail Smelter has to
refrain from these activities
• Tribunal established checks on what Trail Smelter was doing
• Very seminal case - established basic principle of int'l law
○ State has right to use resources how it wants, but has to stop when it
starts infringing on rights of other states to use the environment.
○ Arbitration panel pointed out on pg 627 - no case of air pollution dealt
with by int'l tribunal had yet been brought, so that’s why they looked so closely
at US law
• Also looked at Stockholm declaration and Rio declaration