711.4215 Air Pollution/468
The Secretary of State
to the Minister in Canada (
Robbins
)
No. 300
Washington
, April 14,
1934.
Sir: Referring to the Legation’s despatch
No. 424 of February 24, 1934, and to the enclosure which accompanied
that despatch, I enclose herewith two copies of a draft of a
proposed convention which was drawn subject to further consideration
and change when Mr. J. E. Read of the Canadian Department for
External Affairs was in Washington, from March 10 to March 14,
1934.
As indicated above, the proposed convention was drawn subject to
further consideration and change. It is felt after further
consideration and in the light of developments that it would be
desirable to make some changes in the proposed agreement.
A report on the condition of the atmosphere in Stevens County for the
period from February 1 to February 20, 1934, has now been received.
I regret to note that the report of the automatic recorders at
Northport, Washington, and Boundary, Washington, reveal that a very
unsatisfactory condition obtained. The presence of sulphur dioxide
was recorded at Northport on ninety-five percent of the days and
seventy-seven percent of the hours. The maximum concentration of
sulphur dioxide which was recorded in the twenty days was .69 p.p.m.
The longest visitation of sulphur dioxide continued 98.67 hours.
At Boundary, sulphur dioxide was present ninety-five percent of the
days and sixty-nine percent of the hours. The highest concentration
of sulphur dioxide was 1.35 p.p.m. The longest visitation of sulphur
dioxide continued 44.33 hours.
The sum of $350,000 is deemed inadequate indemnification for the
period up to January 1, 1932, and, in view of increasing intensity
of visitations of sulphur dioxide and of the delay experienced in
coming to an agreement to adjust this difficulty, I feel that the
sum mentioned ought not to be accepted, and that the whole question
of damages ought to be submitted to the proposed Tribunal for
determination. I feel, moreover, that the first question stated in
Article III of the draft of the proposed agreement would not admit
of adequate protection of United States interests.
Accordingly, I propose that the substance of Article I be omitted
from the agreement, and that the three questions included in Article
III be stated as follows:
- 1.
- Is the Trail Smelter required by law to refrain from
causing injury in the state of Washington in the
future?
- 2.
- Same as in the proposed agreement.
- 3.
- What indemnity shall be paid for damage which occurred
prior to the date this convention becomes effective and
which occurs subsequent to that date?
With the changes suggested above the proposed agreement would admit
of the adjudication by an impartial tribunal on a basis of legal
right of the question of abatement and the question of damage from
the time injury in the State of Washington began. I am sure that the
Canadian Government will agree that United States interests are
entitled to a full and impartial adjudication on a basis of legal
right of all questions arising out of the presence in the State of
Washington of sulphur dioxide from the Smelter at Trail. Any
arrangement which would not admit of a full and impartial
adjudication would be prejudicial to injured United States
interests. Such an adjudication would be eminently fair to the
trespassers.
Other changes in the proposed agreement are suggested as follows:
It is desired that the word “practice” be omitted from
Article IV of the proposed convention. This omission would
admit of having the questions decided in accordance with
law.
I feel that the three months’ period mentioned in Article II
within which the non-national judge is to be selected, would
require the making of a choice at an unnecessarily early
date, considering the length of time which, according to
Article V, would elapse before the case would be submitted
to the Tribunal.
There would seem to be no occasion to agree on the
non-national judge or to request the President of the
Permanent Administrative Council of the Permanent Court of
Arbitration to select one until the first pleadings were
exchanged which, according to Article V, would be nine
months after the exchange of ratifications of the
convention. It is suggested, therefore, that nine months
might be substituted for three months in Article II of the
draft. This period, of course, could be shortened should it
for any reason be desirable to shorten the period for the
first exchange of pleadings prescribed in Article V.
Depending upon the conditions obtaining when and if the
proposed convention is signed, it may be desirable to
provide a somewhat shorter period for making the first
exchange of pleadings. This change might be desirable should
the proposed convention not be signed in time to admit of
its presentation to the Senate to obtain the advice and
consent of that body to ratification in the present session
of Congress.
For the convenience of the Government of the United States in
apportioning any indemnity which the Tribunal awards, it is
desired that a paragraph reading as follows be added to
Article III of the proposed agreement:
“The indemnity which the Tribunal decides, pursuant
to the third question stated in Article III, to be
payable shall be paid to the Secretary of State of
the United States to be deposited in the United
States Treasury.”
I am sure that the Canadian Government appreciates the necessity of
finding an early solution of this matter. United States Senators [Page 927] and Members of Congress
from the State of Washington are deeply concerned about the delay in
reaching an agreement. The matter is of such character as to require
immediate adjustment. I hope that the Canadian Government can see
its way to give the matter immediate attention, and that the
proposed agreement, modified as suggested above, may be signed in
time to submit it to the United States Senate for the advice and
consent of that body to ratification before the present session of
the Congress adjourns. Unless the agreement is signed within a
month, it is improbable that the consent of the Senate to
ratification can be obtained before adjournment.
Please communicate with the Department for External Affairs in the
sense of the foregoing and urge expeditious action. Follow the
matter closely and report developments.
If you have not communicated to the Department for External Affairs
the contents of instruction No. 259 of March 14, 1934, please do so
forthwith.
Very truly yours,
For the Secretary of State:
William Phillips
[Enclosure]
Tentative Draft Convention Agreed Upon by Mr.
J. A. Metzger of the
Office of the Legal Adviser, Department of State, and Mr.
J. E. Read, Legal Adviser to the
Canadian Department for External
Affairs
Whereas the Government of the United States has complained to the
Government of Canada that fumes discharged from the smelter of
the Consolidated Mining and Smelter Company, at Trail, British
Columbia, have been causing damage in the State of
Washington;
Whereas the International Joint Commission established pursuant
to the convention of January 11, 1909, between the United States
and Great Britain investigated problems arising from the
operation of the smelter at Trail and rendered a report and
recommendations thereon dated February 28, 1931; and
Whereas the desirability and necessity of affecting a permanent
settlement of the problems arising from the drifting of sulphur
dioxide from the smelter into the State of Washington is
recognized:
The President of the United States and His Majesty for the
Dominion of Canada have named as their respective
plenipotentiaries:
The President of the United States of America—
His Majesty for the Dominion of Canada—
Who, after having communicated to each other their respective
full powers found in good and due form, have agreed upon the
following articles:
[Page 928]
Article I
The Government of Canada will cause to be paid into the Treasury
of the United States at Washington, within three months after
ratifications of this Convention have been exchanged, the sum of
three hundred and fifty thousand dollars, United States
currency, in payment of all damage which occurred in the United
States, prior to the first day of January, 1932, as a result of
the operation of the Trail Smelter.
Article II
The Governments mutually agree to constitute a tribunal,
hereinafter referred to as “the Tribunal”, for the purpose of
deciding the questions referred to it under the provisions of
Article III of this Convention. The Tribunal shall consist of a
chairman and two national members.
The chairman shall be a jurist of repute who is neither a British
subject nor a citizen of the United States. He shall be chosen
by the Governments, or, in the event of failure to reach
agreement within three months after the exchange of ratification
of this Convention, by the President of the Permanent
Administrative Council of the Permanent Court of Arbitration at
The Hague described in Article 49 of the Convention for the
Pacific Settlement of International Disputes concluded at The
Hague on October 18, 1907.44
The two national members shall be jurists or scientists of
repute, who have not been associated, directly or indirectly, in
the present controversy. One member shall be chosen by each of
the Governments.
The Governments may each designate a scientist to assist the
Tribunal.
Article III
The Tribunal shall finally decide the questions hereinafter
referred to as “the Questions” set forth hereunder, namely,
- (1)
- Shall the Trail Smelter be required to refrain from
causing injury in the State of Washington in the future
and if so, to what extent?
- (2)
- What is the maximum frequency, duration and
concentration of sulphur dioxide visitations which can
be permitted in the State of Washington in accordance
with the decision of the preceding question?
- (3)
- What indemnity shall be paid for damage, if any, which
has occurred or may occur after January 1, 1932?
Article IV
The tribunal shall apply the law and practice followed in dealing
with cognate questions in the United States of America as well
as [Page 929] International Law
and Practice, and shall give consideration to the desire of the
High Contracting Parties to reach a solution just to all parties
concerned.
Article V
The procedure in this adjudication shall be as follows:
- 1.
- Within nine months from the date of the exchange of
ratifications of this agreement the Agent for the
Government of the United States shall present to the
Agent for the Government of Canada a statement of the
facts on which the Government of the United States rests
its complaint and petition;
- 2.
- Within a like period of nine months from the date on
which this agreement becomes effective, as aforesaid,
the Agent for the Government of Canada shall present to
the Agent for the Government of the United States a
statement of facts relied upon by the Government of
Canada, together with the supporting evidence;
- 3.
- Within three months from the date on which the
exchange of statements and evidence provided for in
paragraphs 1 and 2 of this Article is completed each
Agent shall present in the manner prescribed by
paragraphs 1 and 2 an answer to the statement of the
other with any additional evidence and such argument as
he may desire to submit.
Article VI
When the development of the record is completed in accordance
with Article V hereof the Government of the United States and
the Government of Canada shall forthwith cause to be forwarded
to each member of the Tribunal a complete set of the statements,
answers, evidence and arguments presented by their respective
Agents to each other.
Article VII
After the delivery of the record to the members of the Tribunal
in accordance with Article VI the Tribunal shall convene at a
time and place to be agreed upon by the two Governments for the
purpose of deciding upon such further procedure as it may be
deemed necessary to take. In determinating upon such further
procedure and arranging subsequent meetings, the Tribunal will
consider the individual or joint requests of the Agents of the
two Governments.
Article VIII
The Tribunal shall hear such representations and shall receive
and consider such evidence, oral or documentary, as may be
presented by the Governments or by interested parties, and for
that purpose shall have power to administer oaths. The Tribunal
shall have authority to make such investigations as it may deem
necessary and expedient consistent with other provisions of this
agreement.
[Page 930]
Article IX
The Chairman shall preside at all hearings and other meetings of
the Tribunal, and shall rule upon all questions of evidence and
procedure. In reaching a final determination of each or any of
the Questions, the Chairman and the two members shall each have
one vote, and in the event of difference, the opinion of the
majority shall prevail, and the dissent of the Chairman or
member as the case may be, shall be recorded.
In the event that no two members of the Tribunal agree on a
question the Chairman shall make the decision.
Article X
The Tribunal shall report to the Governments its decisions and
reasons therefor as soon as it has reached its conclusions in
respect to the Questions, and within a period of three months
after the conclusion of proceedings. Such period may be extended
by agreement of the two Governments.
Upon receiving such report, the Governments may make arrangements
for the disposition of subsequent aspects of the third Question,
and it shall not be necessary for that purpose to continue the
Tribunal.
Article XI
The Government of Canada undertakes to take such action as may be
necessary in order to ensure due performance of the obligations
undertaken hereunder, in compliance with the decision of the
Tribunal.
Article XII
Each Government shall pay the expenses of the presentation and
conduct of its case before the Tribunal and the expenses of its
national member and scientific assistant.
All other expenses which by their nature are a charge on both
Governments, including the honorarium of the neutral member of
the Tribunal, shall be borne by the two Governments in equal
moieties.
Article XIII
This agreement shall be ratified in accordance with the
constitutional forms of the Contracting Parties and shall take
effect immediately upon the exchange of ratifications, which
shall take place at . . . . . . . as soon as possible.
In witness whereof, the respective
Plenipotentiaries have signed this agreement and have hereunto
affixed their seals.
Done in duplicate at . . . . . . . this . . . . . day of . . . .
. nineteen hundred and thirty-four.
