Foreign Relations of the United States Diplomatic Papers, 1934, General, the British Commonwealth, Volume I
711.4215 Air Pollution/468
The Minister in Canada (Robbins) to the Secretary of State
[Received February 26.]
Sir: I have the honor to transmit herewith copies of a note received this morning from the Secretary of State for External Affairs on the subject of the Trail Smelter question.
Respectfully yours,
The Canadian Secretary of State for External Affairs (Bennett) to the American Minister (Robbins)
Sir: I have the honour to refer to my note No. 13, dated the 17th February, 1934, and to make further reference to your note No. 172, dated the 30th January, 1934; both relating to the Trail Smelter question.
2. In the eighteenth paragraph of my note, I referred to the specific proposals which were set forth in your note on Pages 32–35, and intimated that I intended shortly to communicate to you the views of the Canadian Government with regard to them.
3. In the meantime, the Canadian Government has been able to give consideration to the specific proposals, and particularly to the third proposal which is set forth on Page 35 of your note. It is unnecessary to recount the objections that might be raised to the first two proposals, in view of the probability that a satisfactory solution, [Page 911] acceptable to both Governments, can be found along the lines indicated by the third proposal.
4. In considering the third proposal I am assuming that it indicates the basis of a convention, rather than the precise words that would be used in drafting the convention. Accordingly, my observations with regard to your proposal will be directed to suggestions for amplifying the basic elements of the proposal and to comments of an explanatory character.
5. The first part of your proposal is set forth in Clause (a):—
“(a) That the sum of $350,000 shall be paid for damage occurring prior to January 1, 1932.”
This part of the proposal is acceptable and the Canadian Government, as has been intimated in my note, would be prepared to concur in such provisions for payment as will result in a method of distribution acceptable to the Government of the United States.
6. The second part of your proposal is set forth in Clause (b):—
“(b) That there shall be submitted for final determination to a jurist who shall not be an American citizen or a British subject questions defined below:
- i.
- (A) Has the smelter ceased to cause injury in the State of Washington since January 1, 1932?
- (B) Shall the smelter be required to refrain from causing injury in the future?
- ii.
- If part (B) of the first inquiry is answered in the affirmative, what is the maximum frequency, duration and concentration of sulphur dioxide visitations which can be permitted in the State of Washington, without causing injury?
- iii.
- What indemnity shall be paid for damage occurring after January 1, 1932?
- iv.
- Other details.”
This part of your proposal is based in principle upon a neutral determination of the contested issues, and it is necessary to consider both the method of determination and also the issues which are set forth in Subclauses (i, ii, iii).
7. Considering, first, the question of method, I have already pointed out in my note that the Canadian Government is prepared to make every effort to meet the views of your Government with regard to methods of determining the issues, and, to this end, will accept the principle of neutral determination of the contested issues. At the same time it is desirable to explore the different types of tribunal that might be devised for this purpose. A consideration of the nature of the issues, and particularly of their scientific and technical aspects, suggests that the method of determination by a single arbiter would be unlikely to prove satisfactory. It would be particularly unsatisfactory [Page 912] if the arbiter is a jurist faced with the necessity of dealing with highly technical and scientific issues. It is the view of the Canadian Government that the most satisfactory tribunal for dealing with such issues (assuming that the idea of having them investigated by a board of scientists is not followed) would be a tribunal with a neutral umpire, assisted by either two or four scientists, an equal number appointed by each of the Governments. It would be understood, of course, that the nominees would be scientists of repute, nationals of the nominating country, but not drawn from their public services and not associated, either directly or indirectly, with the present controversy. With such a tribunal, a fair and competent determination of the issues could reasonably be expected.
8. In the second place, it is necessary to consider the issues as outlined in your proposal under Clauses (i, ii, iii).
The Canadian Government is in agreement with the general outline of the issues that should be determined. There are, however, some points that require careful consideration when their terms are definitely settled. It is desirable, at this stage, to avoid even a possibility of misunderstanding and, with that end in view, I shall proceed to set forth the observations of the Canadian Government with regard to the individual questions.
9. Subclause (i) sets forth, under two headings, (A) and (B), the two main questions that are to be referred to the tribunal. The first question is,—
“Has the smelter ceased to cause injury in the State of Washington since January 1, 1932?”
The use of the word “injury” is likely to cause misunderstanding which should be removed when the actual terms of the issue are settled for inclusion in the Convention. In order to avoid such misunderstanding, it would seem to be desirable to use the word “damage” in place of “injury” and further, either to define the word actually used by a definition to be incorporated in the Convention, or else by reference to the general principles of the law which are applied by the Courts in the two countries in dealing with cognate matters. Indeed, the Canadian Government would be entirely satisfied to refer the tribunal to the principles of law as recognized and applied by the Courts of the United States of America in such matters.
10. The second main question is,—
“Shall the Smelter be required to refrain from causing injury in the future?”
With regard to this question, the same observations can be made as in the preceding paragraph. Here, again, the use of the word “damage” is suggested and the inclusion of either a definition or a reference to [Page 913] the jurisprudence of the two countries, or even of the United States of America.
11. The third question which is set forth in Subclause (ii), is subject to the same observations with regard to the use of the word “injury”. It is necessary that the tribunal should have a definition that could usefully be adopted as a basis for its decision. Further, it is desirable that a tribunal in considering the advisability of the establishment of a schedule of frequencies should give consideration to the problem that is inherent in this question. That problem arises from the ever present possibility that, owing to uncontrollable circumstances, isolated instances of damage may result. Assuming the establishment of a reasonable schedule by the tribunal and the conduct of operations by the Smelter in due compliance with such schedule, there is always a possibility that an abnormal combination of atmospheric conditions may result in damage. The tribunal should address itself to this aspect of the problem in order that there may be a solution fair to all parties concerned.
12. The fourth question, which is set forth in Subclause (iii) is entirely satisfactory in substance. From the formal point of view, in its present form it implies that damage has occurred since January 1, 1932, but that difficulty can be overcome in drafting.
13. Apart from these questions there will, of course, be other details which can be considered later. It may, however, be pointed out that it will be desirable to give the tribunal the power to conduct such investigations as it may find to be necessary. It is not anticipated that such investigations will be necessary, but, in the event that the evidence presented on behalf of the two Governments or the interested parties, discloses a difference of opinion, it would be most unfortunate if the tribunal lacked the power to make such independent inquiries as were necessary to settle these possible points of difference. Further, the door might well be left open to the two Governments to devise some simpler method of dealing with the situation that arises in either of two events namely, in the event that the tribunal decides that no damage has been caused since January 1, 1932, or in the event that the tribunal decides that damage has been caused and recommends a schedule for further reduction in the frequency duration and concentration of sulphur dioxide visitations and that such reduction has been brought about pursuant to the recommendation. In such event, contingencies subsequently arising might be met without continuing existence of the tribunal.
14. It is hoped that your Government will recognize that these suggestions do not involve any departure in principle from the main lines of your third proposal and that they may prove acceptable. Further, they avoid the necessity for rejecting the Report of the International Joint Commission. Your third proposal, fairly construed, [Page 914] can be regarded as a modification of the methods for dealing with matters necessarily left undetermined by the Commission, preserving those fundamental elements in the Commission’s Report which have met with the approval of both Governments. The Canadian Government, in indicating its willingness to go this far in seeking a fair solution of the problem, does not desire to be understood as conceding that this is an international question in the strict sense. The suggestions are made without prejudice to the position as stated in Paragraphs 5 to 8, inclusive, of my note. They are made in accordance with the general policy as outlined in Paragraph 9 of my note and as being a further attempt to explore all possible avenues, with a view to obtaining a friendly neighbourly and fair solution to the problem.
Accept [etc.]