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THE LARSON . KING SYMPOSIUM: WATER, CATALYST OF LIFE AND STRIFE: A THREAT TO SECURITY OR A VITAL OPPORTUNITY TO FOSTER COOPERATION?: ARTICLE: INTERNATIONAL JOINT COMMISSION: WATER CONFLICTS AND DISPUTE RESOLUTION

SUMMARY:

... The process was created in 1909 and although it uses a bottom up approach to reach consensus, the real decision making is done by the two governments; the recommendations are made by nationally appointed commissioners, and the study groups are made up of technical experts from government and elected or appointed officials who make decisions in the traditional way, where public comment and citizen engagement is at best advisory in nature and not necessarily meaningful. ... Most recently, Lake Mead and Lake Lanier are two examples of the many pending conflicts that focus on competing water demands. ... Often these problems cause real conflicts because unanticipated changes in needs, disagreements regarding the costs and values inherent in the policy priorities, and dissatisfaction with the benefits received by some participants compared to the benefits obtained by other competitive interests. ... In most cases, the dispute resolution mechanisms are rather basic and include some form of consultation, facilitation, mediation and, in some limited cases, adjudication or arbitration. ... Waterways and Boundary Disputes Water and boundary disputes and international treaties are not new to the United States. ... He understood the importance of good relations between the United States and Canada, and he believed that one important aspect of that relationship was the eventual resolution of disputes arising under the Boundary Waters Treaty. ... Grey pressed Canada's leadership to appoint Commissioners to the newly established International Waterways Commissions; he encouraged Secretary of State Elihu Root to participate in discussions and negotiations with Canada, and to establish a formal ongoing mechanism for Canada and the U.S. to utilize for resolving boundary disputes. ... The participation process used by the IJC encourages participants to better understand boundary water disputes and issues.

I. BACKGROUND

Water is very special. It is needed for survival. The nature of water and its general availability is often taken for granted and only recently have industrialized nations of the world taken note of the potential problems water shortages might create for communities, businesses and governments. A supply of fresh water is not enough. There is a need for accessible, inexpensive, safe, and usable water. Emerging nations generally have a better understanding of the importance water plays in health, hygiene, education, agriculture, economic development, and peace. The United Nations estimates that by 2025 nearly 2.7 billion people will experience severe water scarcity, and contaminated water supplies will contribute to millions of deaths annually. n2

Approximately 1.1 billion people in the world lack adequate water and about 2.6 billion are without adequate sanitation. n3 In addition, only 1% of the world's fresh water is usable. n4 The most apparent needs for water can be seen in India, China and Africa, but these examples are not isolated. India and China's skyrocketing economic growth have diverted old priorities and added new demands for significant amounts of additional water. n5 Other countries in South America, parts of Asia, Europe, and North America also reflect increasing demands for water. Population growth contributes to the rising demand for water, and the impact of world wide droughts caused by the changing environment has made parts of China and areas of Africa, Australia and the United States extremely vulnerable. Examples of dependence on dwindling water supplies are easily found. Declining levels of water in reservoirs, fresh water lakes and rivers are compounded by declining rainfall. n6 Similar situations can also be found in the western and southeast areas of the United States.

Changing population trends, such as movements from the Northeast and Midwest United States to Atlanta, Phoenix, Las Vegas and parts of California and Texas, contribute to the water shortage problem. Rising energy demands because of urban/suburban growth, legal decisions and [*595] continually increasing agricultural demands have also raised awareness and understanding of the importance of maintaining adequate water supplies, preserving high quality water reserves and managing the limited water supply as effectively as possible. n7 In addition, there has been an increased awareness of the interdependence communities and countries have toward one another regarding the preservation and use of fresh water; the development and protection of existing water basins and groundwater supplies; and the conservation practices and best practices relating to water management.

Conflicts over water supplies are not new. In the United States, early conflicts arose over competing agricultural and mining uses; later, residents in the Southwest fought in state and federal courts as well as at the administrative agency level over the distribution of water from the Colorado River. Currently, Las Vegas is in several disputes regarding its need for water. The situation in Las Vegas invokes the problem demonstrated during the early 1900s, when Los Angeles acquired the water rights in the Owens Valley which left a wasteland of a former agricultural region. n8 Most recently, Lake Mead and Lake Lanier are two examples of the many pending conflicts that focus on competing water demands. n9

Current international examples of disputes over water usage and supplies can be found in conflicts arising in and around the Jordan, Saskatchewan and Rhone Rivers. n10 Other areas where concerns have arisen regarding the preservation of significant water supplies include the area surrounding the Guarani Aquifer, which covers an area greater than Great Britain, France and Spain, and provides a water source for more than twenty million people. n11 Another example is the general recognition of the ongoing problem of the Rio Grande or Rio Bravo that is a lifeline for millions of people in the southwestern United States and northern Mexico. The region's aquifers are being depleted from overuse, the new demands created by [*596] changes in the demographics, the rapid expansion of Maquiladoras and the increased demands for greater agricultural production. n12

Disputes over water among competing interests can be explained by its unique ability to provide a foundation for life and society. The finite nature of water can also explain water disputes at both the local and international level. Additional conflicts may, however, arise and become even more problematic as water becomes a commodity that is controlled by international corporations that can buy, sell and trade this product for their own advantage. Currently, about ten corporations control a large portion of the world's water supply. They represent a $ 400 billion business and will eventually contribute significant national wealth for some countries and cause other water scarce countries to be dependent on, and even debtor nations to, those companies controlling the world's fresh water. n13 Some experts have suggested that water and the demand for fresh water will be what oil was during the last century and the lack of fresh water may generate such an intense concern and political discontent that future wars might be fought over trans-border disputes involving water. n14 Many governments and companies have begun seeking ownership or control of existing and potential sources of fresh water. Some governments are planning and building dams and reservoirs to store needed water supplies even if such action might be detrimental to those down river from the projects, and other efforts have been undertaken to control ground water within a country's boundaries. Recently, the Governor of New Mexico, a presidential candidate, suggested there was a need for a national water policy that would divert fresh water from existing sources to those states that had an inadequate water supply. The proposal was not well received by the leaders and people from states having adequate water reserves, and it died a quick and quiet demise. Several other overtures have occurred from both government and business interests seeking water resources from the upper Midwest and Canada; one proposal even suggested taking water from the Great Lakes by the tankful. n15

A. Water Policy Programs, Problems and Reports

Recognition of the potential problems resulting from competing demands has created several responses. One response has been the Darwinian approach of self- survival or survival of the fittest (those who have the water control those who don't have water). A second approach attempts [*597] to create and manage water policies that coordinate competing demands such as residential, agricultural and commercial needs. Attempts are also made to balance rural, urban environmental and political demands. This second approach requires the use of various experts, community representation, research and a high degree of transparency regarding public decision making.

The development of public policy requires the involvement of those with competing interests and values regarding water usage, accurate and dependable data from which options can be evaluated and decisions made, and finally community support based on increased awareness and individual buy-in of the policy choices or recommendations. The likelihood of policy failure or noncompliance with policy directives usually results from lack of accountability or involvement of the appropriate government agency or body, too little funding, failure to balance all interests, unclear rules or guidelines and inappropriate or ineffective dispute resolution mechanisms. n16

Specific problems that arise concerning development of water policy are data gaps, or incomplete information; the difficulty of reflecting real direct and indirect costs in pricing; improper management of water resources caused by failing to include all jurisdictions affected by the appropriate watershed; failure to enforce existing regulations or lack of enforceable rules; incomplete intergovernmental oversight of associated issues; and shortsightedness in policy related decision-making which fails to balance competing interests. n17 Often these problems cause real conflicts because unanticipated changes in needs, disagreements regarding the costs and values inherent in the policy priorities, and dissatisfaction with the benefits received by some participants compared to the benefits obtained by other competitive interests. Problems may also arise because political influence and pressures that alter the political landscape make compromise difficult or impossible. In some cases water policy problems may be alleviated by new funding sources, different rule interpretations, or recent judicial decisions. Other influences that remove or reduce related conflicts might be the introduction of new technology, changing market conditions, improved conservation practices or improved collaboration among the competing interest groups. n18

In order to respond to the real or potential problem, a well thought-out water policy should be followed. Successful implementation of water policy programs require, according to the International Joint Commission: 1) accountability based on predetermined obligations, 2) meeting performance standards, 3) accomplishing results based on the means and the agreed upon expectation. n19 The end result of increased accountability should be greater [*598] compliance with policy guidelines, greater collaboration, and cooperation between governmental bodies, NGOs and private interests. In order to insure successful compliance with water policy programs it is also essential that a monitoring system be established to investigate and evaluate the activities of the program and its ultimate success or value. A program of evaluation would include a system of measurements or indicators that establish conditions and goals to be accomplished. n20 In addition, a reporting process should be created that would address economic, political, social and technical issues in a credible timely and transparent manner. n21 A comprehensive monitoring system is not in itself sufficient, therefore it is necessary to develop an assessment process that periodically examines the submitted reports and seriously evaluates the policy plan and implementation and makes recommendations to modify, correct or amend the current program to satisfy needs, such as economic, social and political changes. A report should then be made available to the public and those impacted by the water policy. n22

The report should set out the policy objectives, goals and resources available in the implementation of the policy. It should also consider options and alternatives to the existing policy and an explanation as to why recommended actions were taken. This report should also consider the financial and environmental impact of the various actions. There might also be a report as to the number and types of conflict that have arisen in regard to the policy. Finally, the report and related documentation should be made available to the public.

B. Policy Conflicts

The issue of who will control the water supply raises a variety of questions that often create conflicts. Who can use the water supply, to whom does the water supply belong to and what rights attach to a particular body of water or the owner of that water? Other questions that arise regarding control of water may include: can water be a commodity and therefore be sold to the highest bidder without concern for personal needs; what is the impact on future generations, or what is the value of water to the general public? Can water be protected under the "Public Trust Doctrine" because it is, or can be argued that it is like air, a basic necessity of life? n23

If one uses the "Commons" argument, then almost any water supply that is managed by a governmental body for the benefit of the public could be included in the doctrine; however, if water is not treated as part of the [*599] Commons the survival of individuals in society may be threatened. The "Commons" argument relies on past judicial decisions interpreting property rights and property law. n24

Other conflicts may also arise in regard to the water supply. Environmental concerns, economic benefits, the equitable distribution of resources, public participation and partisan decision-making are only a few examples. As we examine the existing water policy dispute mechanisms, it will be important to remember that, because of the wide variety of problems, there may not be a single approach or method capable of resolving all water-related conflicts. Since water supplies have a regional or even greater impact, we should look to dispute mechanisms that encourage wide public participation, allow for public consensus among participants and which serve to educate and inform the public about water demand, water conservation techniques and current alternatives to water policy. Special attention should be given the dispute techniques used in international water conflicts between the United States and Canada, and the United States and Mexico.

C. Water Policy Dispute Mechanisms

Disputes over water have been reported since the beginning of recorded history. A war over a water-related issue occurred over 4,500 years ago, and during the last 1,200 years there have been about 3,600 water related international treaties. n25 Since 1870 there have been 145 treaties to manage water, of which 124 are bilateral and twenty-one are multilateral. n26 The principal focus of these agreements has been related to hydropower, but there are other agreements that concern themselves with water distribution for consumption, industrial usage, navigation, pollution and flood control. n27

Many of the treaties provide for exchange of data between the signatories of the treaty. This effort provides an opportunity for program administrators and technical experts to build relationships and interdependence within their working group. Some conditions of these water resource treaties include a formula or methodology for allocating water within the agreement or by the use of a board or governing body; the use of economic benefits for one or more of the treaty participants; recognition that the water resource is unique and must be given special consideration in determining the use and distribution of the water in question; and usually downstream participants are given clearer and more specific protection. n28 Treaty participants often negotiate a variety of non-water linkages in their [*600] agreements relating to political concessions, exchange of high quality useable water and access to capital and pollution control mechanisms. n29 Many of the international agreements, about 55%, provide for some form of monitoring process, and approximately 50% of the treaties provide for some form of dispute resolution process which could include an advisory council, a third neutral party or a designated organization such as the United Nations. n30 In most cases, the dispute resolution mechanisms are rather basic and include some form of consultation, facilitation, mediation and, in some limited cases, adjudication or arbitration. Historically, most water treaties established a hierarchy of uses when negotiating water agreements. Generally, navigation is given priority over other preferences, but today most agreements do not list the order of preferences. Instead, they indicate the options or alternative uses for the water. Usually the preference list would include: domestic and municipal uses, industrial uses, navigation, recreational uses, agricultural uses, and energy uses. n31

II. INTERNATIONAL APPROACHES TO ENVIRONMENTAL DISPUTES

A. Permanent Court of Arbitration ("PCA")

When disputes arise over issues addressed in water-related treaties, the mechanism used in resolving the conflict is often an advisory board, an ad hoc or permanent commission, or a governmental body. These bodies have various levels of authority and frequently must have approval from a national or regional government before a decision can be implemented. Until recently there had been no "unified forum" to which states, NGOs, individual citizens and corporate or international groups could turn for resolution of their disputes. n32 The Permanent Court of Arbitration (PCA) may now, however, be used to resolve water disputes.

When taken together, the PCA and the Optional Rules for Environmental Conflicts provide interested parties the opportunity to reach an agreement that is acceptable and capable of harmonizing the needs of diverse interests, cultures and values. n33 In addition, the PCA approach provides decision makers who are experienced in environmental matters, who understand the impact of these decisions on the environment and who need to maintain a high degree of confidentiality regarding national security [*601] issues and proprietary data with a process to produce decisions in a timely manner. n34 The PCA Options are tailored especially for environmental disputes and provide some useful features such as detailed rules for arbitration and conciliation, the use of environmental experts as witnesses, and a process that aids in the facilitation of disputes and the monitoring of any settlement agreement. n35 Currently, over ninety countries have adopted the PCA Environmental Arbitration and Conciliation Rules and have contributed to improving the possibility of environmental disputes being settled more quickly and with greater participant satisfaction. n36

The PCA Environmental Rules fill a gap in the decision-making process for environmental disputes that had not been previously filled. The Rules reflect a broad international acceptance of at least two alternatives with defined rules which parties can use and be confident that they will be heard and given a fair hearing regarding their concerns. The Rules do not solve all the problems regarding environmental conflicts but they are a vast improvement over prior dispute mechanisms. The Rules now bring environmental dispute procedures more closely in line with dispute mechanisms found in, for example, investment treaties or the United Nations Commission on International Trade Law (UNCITRAL). n37

Conflicts regarding the distribution of existing water supplies between treaty participants and/or regarding the order of allocation of water among competing users eventually become a public dispute. Governmental bodies are part of every public dispute and because of their involvement, these disputes take on different characteristics than private conflicts. Generally speaking, the public nature of a dispute means public participation, greater transparency, and possible political pressure. Public disputes are, however, similar to private disputes in that the dispute resolution mechanisms available to parties in conflict are the basic alternative dispute resolution options or derivatives of these options.

B. Dispute Mechanism Techniques

The two most common dispute resolution techniques are arbitration and mediation.

Arbitration or non-binding arbitration occurs when two disputants refer their conflict to a third party decision-maker known as the arbitrator, who will render a decision which will generally be final, or only advisory in [*602] non-binding arbitration. Usually arbitrations are the result of a prior contractual agreement, but arbitrations can also begin when the disputants agree to use the arbitration process to resolve a pending dispute. In arbitration or non-binding arbitration the parties select one or more arbitrators, who hear the case as presented by the representatives of the parties and then issue an award or advisory opinion. Most arbitration decisions cannot be appealed. Parties to an arbitration usually need to agree in advance to the arbitration format and the form of the arbitrators' report. Arbitration provides parties with an opportunity to select an excellent ethical fact-finder, who will generate an impartial opinion. It avoids problems associated with litigation and creates a binding decision to be followed by the parties. Non-binding arbitration may be valuable because it could provide a speedy decision based on the recommendation of an expert. Parties may not want to use this type of arbitration if cost or timing is a problem. The arbitration process can often reduce conflicts between the parties and reduce the amount of discovery needed.

Mediation is a facilitative process. Mediation is a rapidly growing technique that involves a neutral third party trained to assist the parties negotiating an agreement. The mediator has no independent authority and does not render a decision; any decision must be reached by the parties themselves. Another definition of mediation refers to mediation being an art and not a science, therefore, the process reflects many different and rich options for dispute settlement. n38 One set of authors say "mediation is a process in which an impartial third party acts as a catalyst to help others constructively address and perhaps resolve, plan a transaction or define the contours of a relationship." n39 Finally, Kimberlee Kovach says "mediation is the intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no authoritative decision- making power to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute." n40

The mediation process is simple. The initial stage begins with a preliminary review of the facts by the mediator. Mediation begins with an opening statement that describes the process and sets mutually agreeable ground rules. The second stage begins the fact-finding and is the time for the parties to present their case and to confront the issues. This is also the time when venting may occur between the parties. During this stage positions are presented, the interests of the parties are discovered and basic agreement on possible solutions might be aired. The next stage includes a discussion of proposed settlement options, and the mediator must generate movement toward settlement if the parties are at an impasse. The final stage is [*603] agreement between the parties and negotiating the terms of the settlement agreement.

Mediation can be described as facilitative, evaluative or transformative. The facilitative method encourages a problem solving approach to dispute resolution. This method requires the mediator to encourage mutual discussion, exchange of information and creative ideas as to how the dispute might be solved. The facilitative method is designed to build consensus. It is quite flexible in the implementation of the process, and it is the least adversarial between the parties. The evaluative method is focused on the resolution of the dispute. The mediator hears the arguments and then attempts to encourage a particular solution between the parties by using his or her skills, knowledge and expertise. This form of mediation may develop into a "shuttle diplomacy" approach where the mediator moves back and forth between two rooms and the parties and their lawyers consider various proposals and counter proposals. The third method is a newer mediation approach known as transformative mediation. This method attempts to create a setting that will give the parties the opportunity to exercise their choice and to leave the final decision and responsibility of resolving their conflict to themselves. Healing, reconciliation and the making of a lasting agreement are left to the parties and their individual abilities. The mediator in this approach performs the function of a guide or advisor during the process.

Mediation is useful and likely to be successful if the parties have had an ongoing relationship. If cost is an issue, then mediation is the least costly alternative. If one of the parties finds it necessary to express their emotions or if they get out of control during formal proceedings, then mediation is a workable solution. Mediation, because it is private and flexible, allows for the use of creative solutions and it may allow the parties to communicate more effectively with each other.

Mediation can also be referred to as non-directive and directive mediation. Non- directive mediation describes how the mediators operate in regard to their attempts to influence the parties. In this model the mediator avoids making judgments, recommending options and questioning statements and arguments. A directive mediation oriented mediator would express opinions, make proposals, challenge values, question positions and attempt to steer the parties to his or her solution.

Prior to most arbitration or mediation efforts there is a period of discussion, consultation or negotiation that frequently results in a dispute being resolved, troubling actions modified or sticking points settled. Often these methods are ad hoc, informal and unstructured. The process that precedes formal or structured procedures is known as negotiation.

Negotiation, unlike arbitration or mediation, does not require the services of a third party neutral. Usually, the interested parties begin a conversation with one another when they believe there is a misunderstanding. Here they are seeking a benefit or improved situation [*604] when compared to their current position or where they try to avoid further escalation of the initial conflict. Negotiation is a conflict resolution technique that settles disagreement and seeks to avoid or prevent future disputes.

Consultation may precede a structured negotiation and is frequently used in major contract disputes. Because of the dramatic growth of international trade and the development of the World Trade Organization's (WTO) four-part Dispute Settlement System, its use has increased greatly. Usually consultation is entered into voluntarily and is used to help the parties understand their dispute, how the parties see the issues, and to clarify the legal rights and claims of all parties. WTO records indicate that more than half of their cases are settled or abandoned during the consultation phase. n41 Consultation allows parties to modify their positions, change their understanding or to acquire new information that may influence their action or thinking. n42 Consultation is often voluntary but it may become obligatory if included as a contact clause or treaty requirement. Both negotiation and consultation are devices to encourage cooperation and their use, when mandated, functions as an anticipatory action to avoid or prevent the use of formal or structured dispute settlement mechanisms that are more costly and time consuming.

Another possibility when international treaties or conventions are involved and parties to a dispute are not able to reconcile their differences though negotiations is the use of the "Good Offices" of the governing body of the agreement. Generally, "Good Offices" means the office of the secretariat of the organization or body responsible for the implementation of the agreement. The use of "Good Offices" may be as simple as facilitating a conversation between the disputing parties or providing facilities for such a meeting. It may also include the provision of mediation or conciliation services or it may require the actual intervention by an international body. n43 The use of "Good Offices" has been a frequently used tool in international diplomacy and was integrated in the Hague Convention for the Pacific Settlement of International Disputes in 1907. More recently, similar language has been included in agreements creating the World Trade Organization and the Law of the Sea Convention.

Disagreements at the international level often address issues and facts that the parties do not agree to or that they find nearly irreconcilable. When such an impasse occurs it is possible to seek the help of a board of inquiry or a fact-finding body commission to investigate and report findings [*605] related to the disagreement. The commission option was initially an ad hoc undertaking that was formalized in the 1899 Hague Convention for the Pacific Settlement of Disputes. n44 The early commissions were established to examine issues in dispute such as when the U.S. battleship Maine was sunk, when the Russian Fleet fired on British fishing vessels in 1904, and when an American woman was killed in a Chilean sponsored car bombing in the United States. n45 These commissions and board inquiries are less frequently used now because other ADR techniques are available and parties are comfortable using them.

Conciliation is another ADR method used to resolve international disputes. This method is similar to both mediation and arbitration. Conciliation as a process has been used for about eighty-five years, and over 200 bilateral treaties and many multilateral agreements have language enabling disputants to use this alternative. n46 The idea of conciliation commissions, a combination of inquiry commissions and conciliation, were actually used as early as 1914 but the concept has not become a routine procedure in dispute resolution practice. n47 Conciliation requires a third party neutral to encourage the disputing parties to begin a dialogue with one another and to arrive at a mutually agreeable resolution process. It also requires the neutral to examine the circumstances surrounding the conflict and, after an independent inquiry, make a recommendation based upon the evidence and information that has been discovered during the process of fact finding. n48 The parties are not required to accept the recommendation. Conciliation resembles mediation in its facilitative, non- adversarial and non-binding aspects but it follows formalities more like arbitration, such as investigation, evaluation and decision-making. n49 Conciliation has been successful in the few cases where it has been tried, and it provides benefits to the parties because they can reject any recommendation if they desire. n50 In addition, if the dispute moves forward neither party should be surprised by the arguments of the opposite side or of the factors that support the conciliator's solution. Conciliation, like several other ADR mechanisms, allows disputing parties to select the best conflict resolution process for the particular facts and the needs of the parties.

Public conflicts such as those addressing water-related matters require a decision making process that encourages public participation and allows interested parties to identify their values, goals, needs and expectations. The opportunity for public participation gives the parties their [*606] voice to engage in making important public choices and the ability to affirm the governing process. Public participation must address individual concerns of the disputing parties; it must allow for debate and argumentation, and it should give interested parties a sense of which factors will be used to make the decision and how that decision will benefit all participants. Decision-makers in water disputes are usually elected or appointed officials who must carry out legislative, administrative or treaty mandates and directives. Public officials are often wary of public conflict and are cautious about placing contentious issues before the public. Today's public officials understand the expectation of accountability and the importance of meeting the demands and preferences of parties to a public conflict. Public decisions require parties to be aware of the interests of opposing parties, the choices that are available, and the need for reasonable compromises among the vested interests. Public decisions require agreement through consensus and consensus building. The process selected to reach agreement in water dispute conflicts is critical, and the long term viability of the water supply may be dependent upon finding workable compromises.

III. INTERNATIONAL JOINT COMMISSION, DISPUTE RESOLUTION AUTHORITY AND PUBLIC PARTICIPATION

A. Waterways and Boundary Disputes

Water and boundary disputes and international treaties are not new to the United States. For example, boundary disputes can be traced to 1650 between New York, a Dutch colony and the colony of Connecticut that was referred to Massachusetts for a decision. n51 The Articles of Confederation provided for a boundary dispute settlement mechanism in 1777, and a water-related dispute regarding property in the valley of the Susquehanna River was decided in 1782. n52 The Treaty of Paris, in 1783, was an attempt to resolve territorial jurisdiction of boundary waters and navigation rights regarding the Mississippi. n53 This agreement was significant because it related to navigation of boundary waters, the claims of British merchants and the confiscation of property from U.S. vessels. n54 The Jay Treaty combined three different boards of commissions to resolve public disputes, and in 1814 the Treaty of Ghent provided specific standard for boundary settlements along the St. Lawrence River. A variety of other boundary agreements were entered into from 1817 to 1903 that directly influenced the use or benefits, and limitations on claims relating to boundary matter between the United [*607] States and Great Britain, or more specifically Canada. n55 The 1815 Convention dealt with trade and shipping; the Rush-Bagot Treaty of 1817 was concerned with armed vessels on the Great Lakes; the Webster-Ashburton Treaty of 1842 addressed river and island channels; the Northwest Boundary Treaty of 1846 focused on the Columbia River; and the Washington Treaty of 1871 addressed the navigation rights on several rivers including St. Lawrence, Yukon, Porcupine and Stikine.

During the mid-1800s several treaties regarding water rights and boundaries were entered into with Mexico. Prior to the Mexican War, several claims had been made against the United States. The Treaty of Guadalupe Hidalgo used a domestic tribunal and was, after many claims, concluded in February of 1848. This agreement was important because it committed the two countries to resolve their problem through the use of specific means. n56 Later in the Convention of 1868, specific language was cited requiring a decision be made "according to public law, justice and equity." n57 In 1889, the International Boundary Commission on the Rio Grande was created and by 1895, the parties had established an agreement relating to irrigation and possible construction of dams on the Rio Grande. n58 This model was followed a year later when a similar recommendation was made concerning Canada and the United States.

B. Canada and the United States

As early as 1888 the United States and Canada were at odds over a variety of water and boundary issues. The Lake of the Woods and the water of the St. Mary and Milk rivers were examples of such issues. n59 In order to address these and related issues, the Canadian government created a Commission known as the International Waterways Commission that was a forerunner to the International Joint Commission created in 1909. n60

Prior to 1909, the Canadian government had very little experience with international relations, especially related to trade and national defense. During the late nineteenth and early twentieth century Canada was not allowed to determine its own external political relations and diplomacy. n61 Many Canadians were very interested in developing a diplomatic working relationship with the United States, especially in regard to fishing rights, boundary rights, water use and seal hunting. n62 In 1903, when Great Britain and the United States began discussions regarding the definitive boundary [*608] between Alaska and Canada, the Canadian government felt strongly that Canadian delegates or representatives should be engaged in the general discussions, evaluation, and decision making regarding its own boundaries. In the Alaskan boundary dispute, Great Britain had more interest in accommodating United States interests than Canadian interests and, therefore, kept the Canadians out of the general discussion and most meetings, and when an agreement was reached ratification was given to the Canadian Prime Minister indirectly. n63 Any claim made by the Canadians or position favorable to Canada had to be proposed and supported by Great Britain. Negotiations were not successful, and eventually the matter was referred to an arbitration panel which was, according to Prime Minister Laurier, unfair and anti- Canadian. n64

C. Boundary Waters Treaty of 1909

During the early months of 1905 a new Governor-General of Canada, the Fourth Earl Grey, was appointed and his arrival was an important step in improving Canada- U.S. relations. n65 He understood the importance of good relations between the United States and Canada, and he believed that one important aspect of that relationship was the eventual resolution of disputes arising under the Boundary Waters Treaty. Grey pressed Canada's leadership to appoint Commissioners to the newly established International Waterways Commissions; he encouraged Secretary of State Elihu Root to participate in discussions and negotiations with Canada, and to establish a formal ongoing mechanism for Canada and the U.S. to utilize for resolving boundary disputes. n66 Initially, Canadians were suspicious of the efforts by Great Britain and the United States, but by 1907, a new Boundary Waters Treaty was being negotiated and by the time the agreement was signed in 1909, Canada was part of a bilateral relationship which recognized its sovereignty in North American policy matters. n67 The Boundary Water Treaty of 1909 was ratified by Great Britain in March of 1910, in April by the United States and by Canada in 1911. n68

The Boundary Waters Treaty preamble reflects a brief statement indicating that it is to settle all questions pending before the United States and Canada and to make provisions for the adjustments and settlement of those questions. n69 The mechanism used to resolve these questions or issues [*609] was the International Joint Commission (IJC) found in Article VII of the Treaty. Article VII created a Commission consisting of six members, three Canadians and three Americans which had jurisdiction over all cases involving "the use obstruction or diversion of the waters" included in the agreement. n70 Article VIII establishes a list of enumerated preferences for decision-making purposes. The preferences are:

(1) Uses for Domestic and sanitary purposes;

(2) Uses for navigation, including the services of canals for the purposes of navigation;

(3) I.Uses for power and for irrigation. n71

In general, the Treaty directs the Commission to perform judicial, investigative administrative and arbitral functions. These functions must be carried out in compliance with the conditions of the Treaty and should balance the interests of the parties as much as possible. n72 The Commission's authority allows it to hear and decide questions that have been referred to it by the United States or Canada. When an application or referral is made, the IJC shall examine and make separate reports and conclusions to the governments of the United States and Canada. The report should include appropriate detail, conclusions related to the examination, a decision by the Commission, and if necessary a minority report if there is any disagreement among the Commission members. The report is a recommendation by the Commission and will include any exceptions or limitations on the question referred. n73 If the Commission is divided equally or if the members cannot make a decision, the members must make a report to the two governments and an umpire will be appointed according to the rules established by Article XLV of the Hague Convention, paragraphs four, five and six of the Pacific Settlement of International Disputes. n74 This alternative has never been used in IJC recommendations. n75 [*610]

D. Referral and Recommendations

Since the inception of the IJC there have been over sixty applications and more than fifty-five references. n76 The vast majority of these actions resulted in mutual agreement and nearly all of the recommendations had four or more commissioners supporting the decision. n77 Commission recommendations require action by the two governments before any final decision occurs. The Commission usually tries to avoid split decisions but this means that there may be a protracted discussion of issues before consensus can be reached. Once a referral has been made, the IJC will appoint a board or task force to engage in fact- finding. n78 This body will have equal members from both Canada and the United States, include officials from different levels of government, have experts from appropriate areas, and include some or all commissioners and IJC staff. Once the team has been selected the members of the body will meet and determine what is to be studied, how the issue will be measured, how long the study will take and what review will be necessary. n79 Usually the study group will conclude with science- based answers that are then considered by the Commissioners. n80 Before action can be taken by the Commissioners a public hearing which is open to "all interested parties" must occur. n81 In addition to hearings being public, governments and interested persons may present oral or documentary evidence and witnesses may be examined or cross-examined by the Commissioners. Most IJC responses take about one year to complete but some have been completed in six months and others will have taken several years. n82 In some circumstances one of the governments also may refer questions to the Commission.

When the Commissioners have accepted the report from a study group, and a hearing has been held for interested parties, the Commissioners will consider the matter presented before them and make a decision regarding the proper disposition of the pending question. The decision-making process used by the IJC depends upon the ability to reach consensus among the Commissioners, among the study group members and to some extent among the interested persons who appear at the various hearings. This approach builds from the bottom up and requires technical experts, government officials and Commissioners from both countries to reach agreement or near agreement. Such an approach is time consuming and allows for the possibility of the Commission being immobilized or at least delayed because of resistance from a well-organized opposition. [*611]

There is a second method of presentation that can be used to obtain a decision from the IJC. One government on its own behalf or on the part of a person who needs special consideration regarding the use obstruction or diversion of water can submit an application requesting the Commission to take appropriate action. The application by an individual person must be moved by one country and once submitted to the IJC must also be transmitted to the other country. n83 If the Commission takes action and makes an order approving the request, then the appropriate government authority must authorize action. n84 The basic format for the application presentation begins with the request and statement supporting the request followed by notice in the Canada Gazette and the Federal Register, then statements in reply to the request by supporters or those in opposition to the application. n85 The Commission may, if it chooses, enter into consultation with the applicant and an open hearing may be scheduled if necessary. n86 Interested parties may participate and can either engage personally or through their counsel. n87 A verbatim transcript is prepared after the hearing and the Commissioners may require further evidence, examine and cross-examine witnesses and determine the probative value of any evidence. n88

E. Participation and Consensus

The Boundary Waters Treaty gives interested persons an opportunity to be heard on matters before the Commission that were raised either by referral or application. In addition, study groups may have public members as either specialists or non- specialists and notice provisions require publication in national publications to encourage public engagement. The Commission offices assist interested persons by providing materials and reports in hard copy and electronic formats. If questions merit increased public involvement or if the boundary issue is of broad cross-border importance, such as the Great Lakes Water Quality Agreement, special public information programs may be created. Public participation usually allows proponents and opponents to identify their views and feelings about actions or inactions of the governments; it provides the public with the opportunity to become better informed about the issues and questions being discussed, and it serves as a monitor on the judgment of public officials to be more thoughtful in their responses. n89 The participation process used by the IJC encourages participants to better understand boundary water disputes and [*612] issues. In addition, the ability of interested persons to participate in public hearings may help develop support among many of the participants, especially if interested persons feel they have been given some degree of due process and if the IJC and the governments have been responsive to the citizen engagement process. The IJC's participation process may, however, not be as responsive as many citizens would like. The process was created in 1909 and although it uses a bottom up approach to reach consensus, the real decision making is done by the two governments; the recommendations are made by nationally appointed commissioners, and the study groups are made up of technical experts from government and elected or appointed officials who make decisions in the traditional way, where public comment and citizen engagement is at best advisory in nature and not necessarily meaningful.

The goal of consensus decision-making is to arrive at a decision that all parties agree to even if that decision is not equally acceptable to all parties. n90 This decision-making approach does not call a vote, and attempts to provide all parties with something of value. One benefit of this approach is that it often creates new solutions to old problems by blending the needs of many participants. Several questions, however, can be raised when measuring the success of consensus decision-making, including: 1) is the eventual agreement acceptable to the parties? 2) is the result fair to the parties? 3) taken together are the gains maximized? 4) is the decision efficient? and 5) is the result an improvement over prior relationships or solutions? If these standards are used, can one find the IJC process successful? The IJC process is time consuming but it does appear to resolve most problems that participants raise. The process appears to be fair in regard to due process requirements, but it may lack some of the current expectations for citizen participation. The results appear to improve the circumstances surrounding the referral and applications. This is especially true given the requirements of equal treatment between the parties and the use of the Treaty's priorities.

IV. CONCLUSION

The Commission's decision-making process has worked well since 1909 when the Boundary Waters Treaty was entered into by Canada and the United States. There have been many important boundary and water disputes, and the consensus approach seems to have served both the United States and Canada well. The Treaty established a system of priorities, and in light of the priorities, a basic principle of equal use and equal treatment has recognized the essential value of water to citizens on both sides of the Canada-U.S. boundary. In addition, the Commission has relied on a science- [*613] based foundation for its decision, which has eliminated much of the potential political problems that could have been very detrimental to the international relations between Washington D.C. and Ottawa. The use of balanced study groups has also contributed to the success of the Boundary Waters Treaty. Some problems, however, do exist in the process such as the time it takes to address complicated and pressing issues, and the issue relating to public participation which reflects a traditional approach of citizen comment and government decision-making. Spreading the power, authority and control among more of the interested persons would build more confidence in the IJC and a greater degree of comfort in decisions when they are made. Additionally, use of the concept of consultation could encourage more public awareness and the possibility of a better exchange of information. The Commission might also consider using some of the tested and acceptable alternative dispute resolution techniques. Mediation might be of help to relieve the tension between opponents before they engaged the hearing phase of the process. Another alternative might be to use conciliators when interested persons submit an application for specific action by the Commission. The use of some form of appeals process or reconsideration option before the Commission forwards its decision to the two governments might also be considered

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For related research and practice materials, see the following legal topics:
Energy & Utilities LawAdministrative ProceedingsGeneral OverviewInternational LawDispute ResolutionGeneral OverviewInternational Trade LawTrade AgreementsIntellectual Property Provisions

FOOTNOTES:

n1 Professor of Law, Hamline University School of Law.

n2 Rick Moore, It's Crystal Clear: Water is Emerging as the Commodity of the Future, UMN News, Summer 2004, http://www1.umn.edu/umnnews/Feature Stories/Crystal clear Water is emerging as the commodity of the future.html.

n3 Bret Schulte, A World of Thirst, U.S. News & World Rep., June 4, 2007, at 51.

n4 Id. at 53.

n5 Id.

n6 Yuan Yuan, Thirsty China, Beijing Rev., Jan. 10, 2008, at 20-21.

n7 See generally Susan S. Hutson et Al., Estimated Use of Water in the United States in 2000 (2004), available at http://pubs.usgs.gov/circ/2004/circ1268/pdf/ circular1268.pdf.

n8 Alex Markels, Sin City's Continuous Flow, U.S. News & World Rep., June 4, 2007, at 48-49.

n9 See generally David Lewis Feldman & Ruth Anne Hanahan, Southeast Water Resources: Management and Supply Issues S y m p o s i u m R e p o r t ( 1 9 9 8 ) , http://eerc.ra.utk.edu/divisions/wrrc/sws/REPORT-1998.pdf.

n10 See generally Proceedings [of] the [Fifth] Rosenberg International Forum on Water Policy (2006), available at http://rosenberg.ucanr.org/documents/ Volume of Proceedings Rosenberg Forum Banff Canda 2006 web.pdf.

n11 International Organisations Urge Group of Eight Leaders to Allocate Funds to Promote Cooperation Over Transboundary Waters, Int'l Lakes and Rivers (Dep't for Econ. & Soc. Affairs, United Nations, N.Y.; The Econ. Comm'n for Latin Am. & the Caribbean, Santiago, Chile), J u n e 2 0 0 3 , a t 5 , a v a i l a b l e a t http://www.un.org/esa/sustdev/sdissues/water/ rivers lakes news39.pdf.

n12 See Howard LaFranchi, US, Mexico Hear Drip, Drip, Drip of Water Draining From Border, Christian Sci. Monitor, Mar. 5, 1996, available at 1996 WLNR 1200264; see also Marc N. Scheinman, Report on the Present Status of Maquiladoras, in The Maquiladora Industry 19, 19 (Khosrow Fatemi ed., 1990) (explaining that maquiladoras are U.S. subsidiaries in Mexico and that "[s]ince 1982 they have grown very rapidly while the rest of the Mexican economy has languished in deep recession").

n13 Moore, supra note 2.

n14 Id.

n15 Id.

n16 See generally Feldman & Hanahan, supra note 9.

n17 Id.

n18 U.S. Dep't of the Interior, Water 2025: Preventing Crises and Conflict in the West 4 (2005), available at http://www.usbr.gov/water2025/images/Water2025-08-05.pdf.

n19 Int'l Joint Comm'n, 13th Biennial Report on Great L a k e s W a t e r Q u a l i t y 7 ( 2 0 0 6 ) , http://www.ijc.org/php/publications/pdf/ID1601.pdf.

n20 Id. at 10.

n21 Id. at 11.

n22 Id. at 16-18.

n23 See Melissa Kwaterski Scanlan et al., Realizing the Promise of the Great Lakes Compact: A Policy Analysis for State Implementation, 8 Vt. J. Envtl. L. 39, 41 (2006) (suggesting this sort of analysis).

n24 Id. at 44-45.

n25 See Jesse Hammer & Aaron Wolf, Patterns In International Water Resource Treaties: The Transboundary Freshwater Dispute Database, 9 Colo. J. Int'l Envtl. L. & Pol'y 215, 216 (1998).

n26 Id. at 215-224

n27 Id.

n28 Id.

n29 Id.

n30 Id.

n31 Stephen C. McCaffrey, The Law of International Watercourses 48 (2001).

n32 Dane Ratliff, The PCA Environmental Arbitration and Conciliation Rules, 1 Transnat'l Disp. Mgmt. 1 (2004), http://www.transnational-dispute-management.com/ samples/freearticles/tv1-1-roundup 12.htm.

n33 Id.

n34 Id. at 2.

n35 Id. at 3.

n36 Dane P. Ratliff, The PCA Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment, 14 Leiden J. Int'l L. 887, 887 & n.1 (2001). The PCA Rules "provide a forum to which states, inter-governmental organizations, non-governmental organizations, corporations, and private parties can have recourse when they agree to use them in seeking resolution of disputes involving environmental protection, and/or conservation of natural resources." Id. at 889 (citation omitted).

n37 See id. at 888.

n38 James J. Alfini et al., Mediation Theory and Practice 107 (2d ed. 2006).

n39 Carrie Menkel-Meadow et al., Dispute Resolution: Beyond the Adversarial Model 266 (2005).

n40 Kimberlee K. Kovach, Mediation: Principles and Practice 27 (3d ed. 2004).

n41 William J. Davey, The World Trade Organization's Dispute Settlement System, 42 S. Tex. L. Rev. 1199, 1200 (2001).

n42 J.G. Merrills, International Dispute Settlement 3 (3d ed. 1998).

n43 Jacqueline M. Nolan-Haley et al., International Conflict Resolution 35 (2005) ("[U]nder the auspices of 'good offices,' individuals use a variety of means to facilitate the resolution of disputes and conflicts, including informal contracts, friendly suggestions, or mediation. More recently . . . good offices has been expanded to include the intervention of international organizations.").

n44 Merrills, supra note 42, at 45.

n45 Id. at 45-46, 56.

n46 Id. at 84.

n47 Id. at 84; see also Nolan-Haley et al., supra note EREF 43, at 36 (discussing the origin of conciliation and the formalities which distinguish it from mediation).

n48 Merrills, supra note 42, at 70.

n49 Id. at 70, 71; see also Nolan-Haley, supra note 43, at 36.

n50 Merrills, supra note 42, at 85-86.

n51 Jackson H. Ralston, International Arbitration: From Athens to Locarno 190 (1929).

n52 Id.

n53 Louis M. Bloomfield & Gerald F. Fitzgerald, Boundary Waters Problems of Canada and the United States 2 (1958).

n54 Ralston, supra note 51, at 192-93.

n55 Bloomfield & Fitzgerald, supra note 53, at 4-10.

n56 Ralston, supra note 51, at 203-04.

n57 See id. at 204.

n58 See id. at 8.

n59 See id. at 10.

n60 See id.

n61 Meredith Denning & R. Bothwell, Canada, Britain, the United States and the Boundary Water Treaty of 1909, Improving Triangular Relationships, April 2007, at 3.

n62 Id. at 7.

n63 Id. at 9.

n64 Id.

n65 Id. at 15.

n66 Id. at 15-17.

n67 Denning & R. Bothwell, supra note 61, at 23.

n68 Ralston, supra note 51, at 13-14; see also Boundary Waters Treaty, U.S.-Gr. Brit., Jan. 11, 1909, 36 Stat. 2448.

n69 Ralston, supra note 51, at 15 ("[T]o prevent disputes regarding the use of boundary waters and settle all questions which are now pending . . . involving the rights, obligations, or interests of either . . . and to make provision for . . . settlement of all such questions as may hereafter arise.")

n70 Id. at 211; see also Boundary Waters Treaty, supra note 68, art. VIII.

n71 Ralston, supra note 51, at 211-12.

n72 Id. at 15.

n73 See id. at 213; see also Boundary Waters Treaty, supra note 68, art. X.

n74 See Hague Convention for the Pacific Settlement of International Disputes, art. 45, Oct. 18, 1907, in Treaties and Other International Agreements of the United States of America, 1776-1949 (Charles I. Bevans et al. eds., 1969).

n75 Dennis Schornack & John Nevin, The International Joint Commission: A Case Study in the Management of International Waters, in Proceedings [of] the [Fifth] Rosenberg International Forum on Water Policy, supra note 10, at 6-7.

n76 Id. at 5.

n77 Id.

n78 Id. at 19.

n79 Id.

n80 Id. at 20.

n81 Schornack & Nevin, supra note 75, at 21.

n82 Id. at 22.

n83 Bloomfield & Fitzgerald, supra note 53, at 266.

n84 Id. at 227.

n85 Id.

n86 Id. at 228-29.

n87 Id. at 228.

n88 Id. at 230-31.

n89 See Ronald C. Arnett & Pat Arneson, Dialogic Civility in a Cynical Age 52 (1999) ("A public narrative is a means to invite common ground between communicators. Narrative serves as a background for communicative action.").

n90 Susan L. Carpenter & W.J.D. Kennedy, Managing Public Disputes 29 (2d ed. 2001).

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