¹ 3 United Nations Reports of International Arbitral Awards (U.N.-R.I.A.A.) 1905 (1941); also reported in 33 Am. J. Int’l L. 182 (1939) and 35 Am. J. Int’l L. 684 (1941).

² It must be remembered, as has been pointed out by Read, J. E., in “The Trail Smelter Dispute,” 1 Canadian Yearbook of International Law 213–14 (1963)Google Scholar, tnat the Trail Smelter Arbitration did not fall at the time into any of the general categories of international dispute as it did not directly concern the two governments nor did it involve claims by American citizens against the Canadian government. It was, in fact, a case in which it was alleged that a Canadian corporation had been responsible for a nuisance which damaged the property of Americans in the State of Washington. Both governments, however, agreed to submit the dispute to the International Joint Commission for its recommendation under Article 9 of the International Boundary Waters Treaty of 1909 (R.S.C. 1970, c. I–20 (schedule)). Article 9 of that treaty provides, inter alia, that “the… Parties further agree that any other questions or matters of difference arising between them involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other along the common frontier… shall be referred from time to time to the International Joint Commission for examination and report, whenever either [party] …shall request that such questions or matters of difference be so referred.… Such reports of the Commission shall not be regarded as decisions of the questions or matters so submitted either on the facts or the law, and shall in no way have the character of an arbitral award.” The recommendations of the Commission regarding the Trail Smelter dispute were not accepted by the United States and by a 1935 Convention (Can. T.S., 1935, No. 20) the United States and Canada agreed to submit this dispute to a three man international arbitral tribunal (Jan Hostie of Belgium, R. Greenshields of Canada, and Charles Warren of the USA).

³ J. E. Read, “The Trail Smelter Dispute,” supra note 2; Jenks, C. W., The Prospects of International Adjudication 408 (1964)Google Scholar; Rubin, A. P., “Pollution by Analogy: The Trail Smelter Arbitration,” 50 Oregon L.R. 259 (1971)Google Scholar, and the report of the Oral Proceedings, ibid., 283; Restatement of the Foreign Relations Law of the United States (Second), Section 18, Reporter’s Note 3, at 55 (1965); Statement of Mr. J. A. Beesley, Canadian Representative to the United Nations Preparatory Committee for the Third Law of the Sea Conference, Sub-Committee III, Geneva, August 19, 1971. In discussing Canada’s draft declaration on the human environment, Mr. Beesley revealed that the first principle thereof — “No state may use or permit use of its territory in such a manner as to cause damage to the environment of other states or to the environment of areas beyond the limits of national jurisdictions” — was nothing more than a restatement and natural extension of the rule of customary international law enunciated in the Trail Smelter and Corfu Channel cases.

⁴ Michie et al v. Great Lakes Steel et al., (Civil Action #35019) (1970) 1 Environmental Law Reporter 65150; see also ( 1971 ) 2 Environmental Law Reporter 20001.

⁵ Not only was the Canadian government required to pay $428,000 in damages to the United States but the Trail Smelter itself was required to expend some twenty million dollars for the installation of pollution abatement equipment.

⁶ Oppenheim, I, International Law 335–38 (8th ed., Lauterpacht 1955).Google Scholar

⁷ O’Connell, D. P., International Law, Vol. 2, at 943 (1970).Google Scholar

⁸ Supra note 6, at 343.

⁹ See Goldie, L. F., “International Principles of Responsibility for Pollution,” 9 Colum. J. Transnat’l L. 283 (1970)Google Scholar, and his “Liability for Damage and the Progressive Development of International Law,” 14 I.C.L.Q. 1189 (1965).

¹⁰ 3 U.N.R.I.A.A. 1905, 1965; 35 Am. J. Intl L. 684, 716 (1941). There have been some assaults on the international credentials of this arbitral decision in that by Article 4 of the 1935 Convention the tribunal was “to apply the law and practice followed in dealing with cognate questions in the U.S.A. as well as international law and practice.” There can be little doubt that the tribunal reached its conclusions on the basis of decisions of the United States Supreme Court. The tribunal, however, did find that “the law followed in the United States in dealing with the quasi-sovereign rights of the States of the Union, in the matter of air pollution, whilst more definite, is in conformity with general rules of international law.” 35 Am. J. Int’l L. 713–15 (1941). Cf. Rubin, supra note 3, at 265–66, 274.

¹¹ 3 U.N.R.I.A.A. 1905, 1966; 35 Am. J. Int’l L. 684, 717 ( 1941 ). See also, Griffin, W. L., “The Use of Waters of International Drainage Basins under Customary International Law,” 53 Am. J. Int’l L. 50, 61–62 (1959)CrossRefGoogle Scholar. On the question of damages, see Whiteman, , Damages in International Law (1943), Vol. 2, at 1413–17, and Vol. 3, at 1790, 1919.Google Scholar

¹² [1949] I.C.J. Rep. 4, 22.

¹³ Supra note 9; see also Hargrove, J. L. (ed.) Law, Institutions and the Global Environment 135–39 (1972).Google Scholar

¹⁴ Supra note 7, at 945. For an interesting treatment of this general concept in municipal law, see Keeton, W. and Morris, C., “Balancing the Equities,” 18 Tex. L. R. 412 (1940).Google Scholar

¹⁵ See Bourne, C. B., “International Law and Pollution of International Rivers and Lakes,” 6 U.B.C.L.Rev. 115, 131 (1971).Google Scholar

¹⁶ Supra note 7, Vol. 1, at 591–93. See also Jenks, W., “Liability for Ultra Hazardous Activities in International Law,” 117 Hague Recueil 105, 121–22 (1966)Google Scholar. Dr. Jenks at p. 122 submits that in the Trail Smelter Arbitration “[T]he Tribunal did not state, but clearly implied, that the liability arose from the nature of the operations of the Smelter. It is therefore a true case of liability for ultra hazardous activities without proof of fault or negligence.” See also Hardy, , “International Protection Against Nuclear Risks,” 10 I.C.L.Q. 739 (1961)CrossRefGoogle Scholar. Cf. Rubin, supra note 3, at 365.

¹⁷ Read, supra note a, at 221, points out that the regime compelled the company to remove from the smoke cloud at the stacks more sulphur dioxide than was taken from the stacks of all other smelters in North America combined. One happy note for the company was struck when it eventually succeeded in selling the by-products of its smoke abatement programme for substantial profit.

¹⁸ Supra note 9, 9 Colum. J. Transnat’l L. 281, 306 (1970).

¹⁹ Report of the UN Conference on the Human Environment, Stockholm, June 1972, A/CONF. 48/14, at 7. The text of these principles is as follows: Principle 21, “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” Principle 22: “States shall co-operate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.”

²⁰ G. A. Res. 2996, 27th sess., Dec. 15, 1972. (333 members voted in favour, none against, and 10 abstained.)

²¹ For one of the most lucid and comprehensive surveys on this subject, see Bishop, W., International Law 69–77 (3rd ed. 1971)Google Scholar, and the numerous references made therein.

²² See Interhandel case (Switzerland v. US), [1959] I.C.J. Rep. 6, and Case of Certain Norwegian Loans, [1957] I.C.J. Rep. 9. Cf. Separate opinion of Judge Lauterpacht, ibid., 34 and 43.

²³ This, of course, leaves us to ponder on the indecent haste of the Canadian government in withdrawing on April 7, 1970, the jurisdiction of the court for, inter alia, disputes in respect of its Arctic Waters Pollution Prevention Act (see 9 Int’l Legal Mat. 543 & 548 (1970)), especially in view of the Interhandel case and the fact that the United States was likely to be the main objector to the exercise by Canada of pollution jurisdiction over the one hundred mile area off its Arctic shores.

²⁴ The International Joint Commission’s Report on Transboundary Air Pollution in the Detroit and St. Clair River Areas (1972). This report revealed that in the Detroit/Windsor area in 1967 roughly 90 per cent of the particulates and 94 per cent of the sulphur oxides originated in the United States. In the Samia/Port Huron area, approximately 48 per cent of the particulates and 73 per cent of the sulphur oxides originated in the United States, while the malodours experienced in the Port Huron area were the result of trans-boundary movement from the Canadian side. (See c. X of the Report). There is also transboundary movement of effluent from Canada at other border points, such as Sault Ste. Marie. Thus, the roles of polluter and receptor may change depending on the geographical area considered. The delinquent state in a given case would certainly not agree to arbitrate any single case of transboundary pollution without extracting from its adversary an agreement to arbitrate other cases in which it is the victim. See 67 Dept. of State Bull. 707 and 708 (Dec. 18, 1972).

²⁵ Read, supra note 2, at 222–28.

²⁶ 11 Int’l Legal Mat. 694, 697–98 (1972). The effect of Article VI(2) is that the reports of the International Joint Commission in any of its references shall continue not to have the character of an arbitral award.

²⁷ For an exception to this rule, however, see the role of the commission in the presentation of an individual’s case under the European Convention of Human Rights: supra note 7, at 749–51.

²⁸ See McLaren, J. P., “The Common Law Nuisance Actions and the Environmental Battle — Well-Tempered Swords or Broken Reeds,” 10 Osgoode Hall Law Journal 505–61 (1972)Google Scholar. See also McCaffrey, S. C., “Trans-boundary Pollution Injuries: Jurisdictional Considerations in Private Litigation between Canada and the United States,” 3 Calif. Western Int’l L. J. 191 (1973)Google Scholar, for an excellent treatment on the possibility of bringing private actions for injuries suffered from transboundary pollution.

²⁹ See Castel, J.-G., International Law 1027 and 1028 (1965)Google Scholar, for a summary of the substantive or procedural nature of the exhaustion of the local remedies rule. Basically, the local remedies rule is only significant, as Professor O’Connell points out, if a foreigner has municipal locus standi in judicio. Nonetheless, the question of local remedies rarely arises in claims concerning the direct complicity of the state: see supra note 7, at 701 and 945–47.

³⁰ The latter part of this proposition does not, of course, preclude a state from changing its policy at any time and agreeing to press the claim internationally.

³¹ Civil Action #35019, (1970) 1 Environmental Law Reporter 65150 and (1971) 2 Environmental Law Reporter 20001.

³² Michigan Compiled Laws Annotated, Sec. 691.1201 et seq. Also found in Hasset, C. M. (ed.), Environmental Law (1971)Google Scholar, Appendix B., at 161. See also Hadden, D., “Using the Common Law in an Environmental Case,” in “Oyez” (Windsor, Faculty of Law monthly newspaper) September 1972 Google Scholar. Mr. Hadden is the Michigan lawyer representing the plaintiffs in the Michie case.

³³ 1970 Federal Rules of Civil Procedure (United States) Rule 23(a)(3) and Federal Rules Digest, Cumulative Supplement (Vol. 2, 1972) 297, 318 et seq. See also, W. B. Robinson and others v. J. B. Baugh (1875), 31 Mich. 289, where a number of property owners joined to bring an action in public nuisance without the intervention of the Attorney General. This case, however, still required the plaintiffs to show that they had distinct interests that were affected in the same way. See also Detroit Realty Co. v. Barnett ( 1909), 156 Mich. 385, and Brady v. Detroit Steel and Spring Co. (1894), 102 Mich. 277; 60 N.W. 687. Cf. Supreme Court of Ontario, Rules of Practice, Rule 75, which raises similar problems of defining a class having the same interest. These problems may be circumvented by the application of the permissive joinder of parties rule applied in American federal courts.

³⁴ 1970 Federal Rules of Civil Procedure (United States) Rule 20 (a).

³⁵ (1970) 1 Environmental Law Reporter 65150, 65151. The question of whether or not the defendants were joint tort-feasors has important consequences. As the plaintiffs were citizens of Ontario and the defendants citizens of Michigan, the jurisdiction is founded on diversity of citizenship under 28 United States Code annotated, Section 1332. The plaintiffs must therefore establish that the amount in controversy is $10,000 for each individual plaintiff.

³⁶ (1971) 2 Environmental Law Reporter 20001. See also Watts v. Smith (1965), 375 Mich. 120, 125, quoting Meier v. Holt (1956), 347 Mich. 430, 438 and 439.

³⁷ (1952) 151 Texas 251; 248 S.W. 2d 731.

³⁸ Ibid., 734.

³⁹ (1971) 2 Environmental Law Reporter 20001. The defendants have appealed this ruling and argument before the Federal Court of Appeal will take place on Oct. 18, 1973, in Cincinnati, Ohio.

⁴⁰ S. C. McCaffrey, supra note 28, at 223 and 224.

⁴¹ Revised Judicature Act of 1961, Michigan Compiled Laws Annotated, Sec. 600.705 and 600.715.

⁴² McCaffrey, supra note 28, at 227. See also The British South Africa Company v. The Companbia de Moçambique, [1893] A.C. 602 (H.L.), and Albert v. Fraser Companies Ltd., [1937] 1 D.L.R. 39 (N.B.C.A.). See also Willis, J., “Jurisdiction of Courts — Actions to Recover Damages for Injury to Foreign Lands,” 15 C.B.R. 112 (1937).Google Scholar