The Trail Smelter Case Re-examined: Examining the Development of National Procedural Mechanisms to Resolve a Trail Smelter Type Dispute
| Author | Martijn Kerkhof, van de |
| Position | University College Utrecht, BA (2007) Utrecht University School of Law, LLM (public international law) (2010) |
| Pages | 68-83 |
e Trail Smelter Case Re-examined:
Examining the Development of National Procedural Mechanisms
to Resolve a Trail Smelter Type Dispute
Martijn van de Kerkhof
Merkourios 2011 – Volume 27/Issue 73, Article, pp. 68-83.
URN: NBN:NL:UI: 10-1-100934
ISSN: 0927-460X
URL: www.merkourios.org
Publisher: Igitur, Utrecht Publishing & Archiving Services
Copyright: this work has been licensed by the Creative Commons Attribution License (3.0)
Keywords
Trail Smelter, Procedural Mechanisms, Transboundary Pollution, Dispute Settlement.
Abstract
is article re-examines the iconic Trail Smelter dispute. e article discusses the way a modern day Trail Smelter type dispute
would be dealt with in the current time. e article examines the opportunities of resolving such a dispute using national
mechanisms. Consequently, the United States and Canadian courts are examined in terms of their applicability to a modern
day Trail Smelter type dispute. e classic obstacles that prevented access to these courts in the original Trail Smelter dispute
are described, subsequently the current status of these obstacles is assessed.
e evaluation indicates that the national mechanisms to deal with a Trail Smelter type dispute have gone through a pro-
nounced development. Whereas Canadian courts are still reluctant to exercise their jurisdiction extraterritorially, recent
legislation seems to indicate that in the present day a Trail Smelter dispute could potentially fall within the jurisdiction of a
United States court.
Overall the thesis indicates that national mechanisms have started to ll the void that is left by the lack of decisive action that
can be taken using international mechanisms. e current situation shows an increasing willingness to provide opportunities
for resolving transboundary disputes at the private party level.
Author Aliations
University College Utrecht, BA (2007) Utrecht University School of Law, LLM (public international law) (2010).
Article
68Merkourios - International and European Environmental Law - Vol. 27/73
Case Note
Article
I. Introduction
To study international environmental law without being confronted with the Trail Smelter case is like studying literature
without ever coming across the works of William Shakespeare. e drawn-out dispute1 between the United States and
Canada, concerning the damage caused to property in the former by air pollution originating in the latter, has played an
important role in the shaping and developing of international environmental law. Some scholars have even gone so far as
to apply lessons learned from the Trail Smelter case to issues beyond the scope of international environmental law, such as
terrorism2 and internet torts.3
e brunt of the attention paid to the Trail Smelter dispute has focused on the role it has played in the substantive development
of international environmental law. e groundwork laid by the arbitral tribunal in establishing the principle that a State
shall not ‘(…) permit the use of its territory in such a manner as to cause injury in or to the territory of another (...)’4 is a
commended achievement of the Trail Smelter dispute. However, the remarkable fact that an arbitral tribunal was granted
the power to lay this groundwork is an equally formidable achievement. A dispute that originated between two private
parties ‘(…) quickly escalated to the highest levels of the Canadian and US government’.5 ese governments in turn granted
binding decision making power to an ad-hoc tribunal. is marked the rst and only time such a procedure was followed to
resolve a private dispute concerning international environmental damage.6 us, although the substantive achievements of
the Trail Smelter case tend to outshine the procedural ones, to underestimate the worth of the procedural issues in the Trail
Smelter dispute would be a mistake.
e unique nature of the procedural resolution to the Trail Smelter dispute raises the issue of how a similar dispute would
be dealt with today. Industry has developed greatly in the 70 odd years since the resolution of the Trail Smelter dispute.
Fortunately, awareness of the potential damage of air pollution as well as the realization that it must be remedied has also risen.
e quickest and most obvious method to deal with a Trail Smelter type dispute between private parties would be to allow
national courts to exercise jurisdiction over such a dispute. is article examines which obstacles prevented national courts
from exercising jurisdiction during the original Trail Smelter dispute. Subsequently, it is determined whether a contemporary
Trail Smelter type dispute would still face these barriers or if recourse to a national court is in the present day a real possibility.
In taking the Trail Smelter dispute as an anchor to compare the availability of access to national courts at the time of the
dispute and today, it becomes possible to concretely determine relevant changes and developments. For this comparison to
be accurate it is vital to accurately determine the steps that were taken in the classic Trail Smelter dispute to turn a dispute
between private parties into an international issue. ese steps will be listed and explained in section 2 of this article. Section
3 will assess the dispute settlement procedures available in the national courts of the United States and Canada respectively.
Finally, section 4 will give an answer to the question: How has access to private party litigation in cases of transboundary air
pollution evolved since the Trail Smelter dispute?
II. e procedural progression of the original Trail Smelter dispute
e central issue in the Trail Smelter case was pollution originating at the Cominco Smelter (at the time it was called the
Consolidated Mining and Smelting Company) at Trail, British Columbia (Canada) causing damage to farms in Steven’s
County, Washington (United States). e total distance between the aected farms and the Smelter was less than 30 kilometers.
Unfortunately, within this 30 kilometer stretch lies the US/Canadian border. e presence of this border complicated the
case signicantly and provided the initial impetus to the unique procedural progression of the Trail Smelter dispute.
e rst signicant 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 aected Canadian property. Cominco
1 It lasted 13 years, from 1928 to 1941.
2 P Dupuy and C Hoss, ‘Trail Smelter and Terrorism: International Mechanisms to Combat Transboundary Harm’ in RM Bratspies and RA Miller (eds),
Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration (Cambridge University Press 2006) 225-239.
3 HP Hestermeyer, ‘Transboundary Harm: Internet Torts’ in RM Bratspies and RA Miller (eds), Transboundary Harm in International Law: Lessons from the Trail
Smelter Arbitration (Cambridge University Press 2006) 268-280.
4 CPR Romano, e Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach (Kluwer Law International 2000) 261.
5 JD Wirth, Smelter Smoke in North America: e Politics of Transborder Pollution (University Press of Kansas 2000) 1.
6 JH Knox, ‘e Flawed Trail Smelter Procedure: e Wrong Tribunal, the Wrong Parties, and the Wrong Law’ in RM Bratspies and RA Miller (eds), Transboundary
Harm in International Law: Lessons from the Trail Smelter Arbitration (Cambridge University Press 2006) 66.
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