Of paradoxes, precedents, and progeny: The trail smelter arbitration 65 years later
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Paradoxes • A fountainhead of transboundary pollution becomes the fountainhead of law prohibiting transboundary pollution. • An industrial activity that is synonymous with environmental threats becomes synonymous with environmental protection. • A small town in Canada becomes known throughout the world for an international arbitration that bears its name. • For the fact that there was an international arbitration at all we owe thanks to an antique English rule of civil procedure. And, • The country that “won” the arbitration has more recently been equivocal as to the legal status of the fundamental principle on which the award was based. On March 11, 1941, just over 65 years ago, the Trail Smelter Tribunal, composed of jurists from Canada, the United States and Belgium, delivered an award that ushered in a new era in a field that has become known as international environmental law. The Tribunal held, in essence, that Canada was required to see to it that the smelter at Trail, British Columbia, would “refrain from causing any damage through fumes [to agricultural interests] in the State of Washington;…” >I first began studying the Trail Smelter arbitration in the early 1970s, which is roughly equidistant in time from both the Tribunal's final award and the publication of this volume. I wondered why this controversy, essentially between a private smelter on one side of the U.S.-Canadian border and private landowners on the other, could not simply have been resolved through national courts.
Rebecca M. Bratspies and Russell A. Miller
Cambridge University Press
Cambridge, United Kingdom
McCaffrey, Stephen C., "Of paradoxes, precedents, and progeny: The trail smelter arbitration 65 years later" (2006). McGeorge School of Law Scholarly Books. 46.