The International Joint Commission
| Author | O.P. Dwivedi |
| DOI | 10.1177/002085237404000409 |
| Date | 01 December 1974 |
| Published date | 01 December 1974 |
| Subject Matter | Articles |
The International Joint Commission :
Its Role in the United States-Canada Boundary Pollution Control*
UDC 341.222:351.777(71+73)
by
O.P. DWIVEDI,
Associate Professor of Political Studies,
University of Guelph, Ontario
This paper examines the role of the Inter-
and settlement of all such questions as may
national Joint Commission as an international
hereafter arise... (2).
institution created to deal with the environ-
mental problems of a trans-boundary nature
The use and diversion of boundary waters
between Canada and the United States for
did create some problems for the two national
which national mechanisms have not been
governments at the turn of the twentieth cen-
found adequate.
tury (3).
The United States-Mexico dispute
over the diversion of the Rio Grande and the
BACKGROUND
subsequent pronouncement of the Harmon
Doctrine was viewed with concern by the
The High Contracting Parties agree to
Canadians (4). They wanted to conclude an
establish and maintain an International Joint
agreement with the United States respecting
Commission of the United States and Canada
the use of boundary waters. Several meetings
composed of six commissioners, three on the
between the representatives of the two govern-
part of the United States appointed by the
ments resulted in the formation of an Inter-
President thereof, and three on the part of
national Waterways Commission in 1902. The
the United Kingdom appointed by His Ma-
Commission had no executive, administrative,
jesty on the recommendation of the Governor
or legal powers but was authorized to inves-
in Council of the Dominion of Canada (1).
tigate the conditions and uses of waters adjacent
to the
With these words, the 1909 Boundary Waters
boundary lines between the two coun-
tries.
Treaty between the United States and the
During its short existence, the Com-
mission found that
United
a
Kingdom (acting for Canada) established
state, in the absence of
a governing treaty provision, could use and
a formal institutional mechanism, the Inter-
divert
national
waters for
Joint Commission, to permit joint
any purpose within its own
action
jurisdiction.
on water resources-use problems in the
Consequently, the Commission
recommended that it would be
boundary waters. But the Commission actually
necessary to
conclude a treaty which could cover all water
came into being three years later when it held
its first organizational session in January 1912.
problems so as to remove the possibility of
The main
any friction and reprisals by either side of
purpose of the Treaty was to create
the boundary waters (5). Thus the Inter-
an administrative machinery which could
national Waterways Commission became a
forerunner of the permanent machinery estab-
... prevent disputes regarding the use of
boundary waters and to settle all questions
which are now pending between the United
(2) Ibid., preamble.
States and the Dominion of Canada involving
(3) Disputes arose between the two countries with
the rights, obligations, or interests of either
respect to the question of navigation and use and
diversion of waters for irrigation, domestic and in-
in relation to the other or to the inhabitants
dustrial, and hydro-electric power purposes.
For
of the other, along their common frontier,
further details of such cases, see C.J. Chacho, Inter-
and to make provision for the adjustment
national Joint Commission (New York 1932), pp.
76-77.
(4) The Harmon Doctrine states that the princi-
* The author would like to express his appreciation
ples of international law impose no obligation on
to The Canada Council for its research grant.
the upper riparian to consider the lower riparian in
(1) Treaty between the United States and Great
its use of waters within its territory even though
Britain relating to Boundary Waters, and Questions
the waters flow into another state.
See D.C. Piper,
Arising Between the United States and Canada,
The International Law of the Great Lakes (Durham,
January 11, 1909, Canada Statutes 1911, chapter 28,
N.C., 1967), p. 77.
art. VII.
(5) D.C. Piper, op. cit., pp. 73-74.
370
lished under the Boundary Waters Treaty.
mission as not been asked to perform yet) (8);
Although the Treaty was signed by Great
and (h) boundary waters, or water flowing
Britain as an imperial power acting on behalf
across the boundary shall not be polluted on
of the Dominion of Canada, the Canadian
either side to the injury of health or property
efforts and active participation in the
on the other. Under these
negotia-
provisions, a variety
of water resources
tions with the United States
problems have been referred
were the main
to the Commission by the two respective
force behind
gov-
concluding such an agreement (6).
ernments.
Some of these cases, for example
the Columbia River reference, required the
The International Joint Commission was
Commission to examine and report upon the
given a mandate to administer the provisions
use of water for domestic water supply and
of the agreement and to exercise jurisdiction
sanitation, navigation, development of hydro-
over the use, obstruction or diversion of boun-
electricity, control of floods, needs of irrigation,
dary waters affecting levels and flows in the
reclamation of wet lands, conservation of fish
other country. Excluded from its jurisdiction
and wildlife, and public recreational use (9).
are streams flowing into the boundary waters
Although the Boundary Waters Treaty makes
and lakes lying within the territory of each
only a passing reference to water pollution, it
country. For example, the waters of Lake
should not be inferred that the issue of envi-
Michigan are not within the investigatory, ad-
ronmental quality was side-stepped by the Com-
ministrative or quasi-judicial authority of the
mission.
Commission. In summary, the Treaty provi-
des (7) that (a) both countries shall have
IJC AND ENVIRONMENTAL CONCERNS
equal and similar rights in the use of boundary
waters; (b) navigation of all navigable boundary
Questions relating to environmental quality,
waters shall be free and open to citizens of
including those dealing with water pollution,
both countries; (c) in the use of boundary
did not attract much public attention during
water, the precedence will be in the following
the time of the Treaty negotiations; even then,
order: (i) uses for domestic and sanitary pur-
the negotiators did believe that some provision
poses, (ii) uses for navigation, and (iii) uses
should be made for this potential problem and,
for power and for irrigation purposes; (d) ap-
in the first draft of the agreement, a clause
proval of the IJC is required to any uses,
prohibiting pollution of trans-boundary waters
obstructions or diversions of boundary waters
was inserted (10); and a provision was made
which affect the natural level or flow on the
to establish a joint agency which was to be
other side; (e) each country has exclusive
given authority to enforce such power. How-
jurisdiction and control over the use and diver-
ever, the American Government was not in-
sion of all waters on its side of the boundary
terested in creating a supernational agency
provided such use or diversion does not cause
with powers to intervene in domestic affairs
injury to the other side; (f) any questions of
of a nation. Thus the question of pollution
difference involving the rights
was
or interests of
assigned a low priority in the Treaty by
the inhabitants along the
inserting the following declaratory clause :
common frontier shall
be referred to the IJC for examination, report
It is further agreed that the waters herein
and recommendations; (g) such questions or
defined as boundary waters and waters flow-
matters of difference may be referred for deci-
ing across the boundary shall not be pol-
sion to the IJC with the consent of both gov-
luted on either side to the injury of health
ernments (this is a function which the Com-
or property on the other (11).
Despite the initial lack of governmental sup-
(6) For further details about the events leading to
port to the question of pollution control, the
the signing of the Treaty, see, for example, L.M.
Bloomfield and G.F.
prevalence of typhoid fever in 1912 around
Fitzgerald, Boundary Waters
the border areas
Problems of Canada and the United States (Toronto,
prompted the two federal gov-
1958), pp. 1-14; D.C. Piper, op. cit., pp. 72-74; and
ernments to request the International Joint
A.D.P. Heeney, Along the Common Frontier : The
International Joint Commission, pamphlet prepared
for the Canadian Institute of International...
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