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<br />45
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<br />(1) Whether damage caused by the Trail Smelter in
<br />the State of ,Vashington has occurred since the first
<br />day of January, 1932, and, if so, what indemnity should
<br />be paid therefod
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<br />(2) In the event of the answer to the first part of the
<br />preceding question being in the affirmatiye, whether
<br />the 'l'rail Smelter should be required to refrain from
<br />causing damage in the State of Washington in the fu-
<br />ture and, if so, to what extent 170
<br />
<br />Having found that damages had been caused by the
<br />smelter, the tribunal proceeded to the second question.
<br />By its terms of reference the tribunal was instructed to
<br />"apply the law and practice followed in dealing with cog-
<br />nate questions in the United States of America as well as
<br />international law and practice." Indicating that Canada
<br />was responsible under international law for the eonduct of
<br />the Trail Smelter, the tribunal stated:
<br />
<br />The first problem whieh arises is whether the ques-
<br />tion should be answered on the basis of the law fol-
<br />lowed in the United States or on the basis of inter-
<br />national law. '1'he 'l'ribunal, however, finds that this
<br />problem need not be solved here as the law followed in
<br />the United States in dealing with the quasi-soverei,gn
<br />rights of the States of the Union, in the matter of air
<br />pollution, whilst more definite, is in conformity with
<br />the general rules of intel'llationallaw.
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<br />As Professor Eagleton puts in (Responsibility of
<br />States in International Law, 1928, p. 80): "A State
<br />owes at all times a duty to protect other States against
<br />injurious acts by individuals from within its jurisdic-
<br />tion." A great number of such general pronounce-
<br />ments by leading authorities concel'lling the duty of a
<br />State to respect other States and their territory have
<br />been presented to the Tribunal. These and many
<br />others have been carefully examined. Intel'llational
<br />decisions, in various matters, from the Alabama case
<br />onward, and also earlier ones, are based on the same
<br />
<br />70 Id. at 1911, 1939.
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