The Boundary Waters Treaty (BWT) [FN1] between Great Britain, on behalf of Canada and the United Sates is a unique and in its day far reaching. It established the International Joint Commission (IJC). [FN2] Composed of six members, three from Canada and three from the United States, the IJC was created as an adjudicative body that can be employed for non-binding investigations as well as for binding arbitration. [FN3] Indeed, the IJC asserts that it “prevents and resolves disputes between the United States of America and Canada under the 1909 Boundary Waters Treaty and pursues the common good of both countries as an independent and objective advisor to the two governments.” [FN4]
Furthermore, the IJC assists the two governments in averting and resolving transboundary disputes, principally concerning water and environmental issues, by embarking upon inquiries and analyses, [FN5] providing advice and by authorizing specific facilities across the five thousand mile Canadian-American frontier of transboundary waters. [FN6] Additionally, the IJC provides an awareness of emerging transboundary matters to both governments. [FN7] However, in order for the IJC to act, it must receive a referral from either or both countries. [FN8] These referrals involve both environmental and non-environmental conflicts. To date, the IJC has had approximately one hundred referrals. [FN9]
The IJC's ability to conduct an in depth study of each referral, to hold public hearings, [FN10] and to afford parties the opportunity to submit amicus briefs, [FN11] provides it with powers that courts simply lack. The *1697 latter can only deal with narrow legal issues, and in the United States, only when those issues raise a case or controversy. [FN12] In addition, once the Commission receives a referral, its jurisdiction is extremely broad, and unlike courts, it is unconstrained by constitutional provisions or legislative mandates. [FN13]
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[FN1]. Treaty Between the United States and Great Britain Relating to Boundary Waters between the United States and Canada, pmbl., U.S.-Gr. Brit., Jan. 11, 1909, 36 Stat. 2448 [hereinafter Boundary Waters Treaty].
[FN2]. Boundary Waters Treaty, supra note 1, art. III.
[FN3]. Noah Hall, Bilateral Breakdown: U.S.-Canada Pollution Disputes, 21 NAT. RESOURCES & ENV'T. 18, 19 (2006).
[FN4]. The International Joint Commission, Mission Statement, available at http://www.ijc.org/en/home/main_accueil.htm (last visited May 28, 2009).
[FN5]. For example, United States Commissioner Allen Olson and Canadian Commissioner Jack Blaney have been using their “good offices” on behalf of the IJC to seek a resolution to a problem between North Dakota and the Province of Manitoba over North Dakota's Devil's Lake. Interview with Allen I. Olson, I.J.C. Commissioner, in Detroit, Mich. (Feb. 5, 2009).
[FN6]. The joint border includes some 150 lakes and rivers, which comprise ninety percent of the surface fresh water in North America, as well as over twenty percent of the earth's useable surface fresh water. Hall, supra note 3, at 18.
[FN7]. International Joint Commission, Canada and United States, 2003 Annual Report, available at http://www.ijc.org/php/publications/pdf/ID1555.pdf (last visited May 29, 2009).
[FN8]. Referrals to the IJC for non-binding recommendations may occur “whenever either the Government of the United States or the Government of the Dominion of Canada shall request.” Boundary Waters Treaty, supra note 1, art. IX. Due to the requirement of a reference, individuals cannot request the IJC to act. Id. Nevertheless, a solitary citizen or groups may petition their respective governments for a reference. Id. art. X. However, such requests may, in some cases, raise delicate political questions.
[FN9]. Interview with Frank Bevacqua, Public Information Officer for the IJC's Washington office, at 2401 Pennsylvania Avenue, N.W., Fourth Floor, Washington, D.C. 20440 (Jan. 15, 2008).
[FN10]. See, e.g., Mimi Larsen Becker, The International Joint Commission and Public Participation: Past Experiences, Present Challenges, Future Tasks, 33 NAT. RESOURCES J. 235, 237 (1993); The Right Honourable Herb Gray, Proceedings of the Canada-United States Law Institute Conference on Understanding Each Other Across the Largest Undefended Border in History, 31 CAN.-U.S. L.J. 287, 299 (2005) (observing that only when the public is “vigilant” can international agreements be successful).
[FN11]. At the February 5, 2009, conference giving rise to this Symposium issue, I directed a question to U.S. Commissioner Allen I. Olson regarding a party's ability to submit an amicus brief. He responded that in his view the submission of amicus briefs is just another form of public participation. Interview with Allen I. Olson, supra note 5.
[FN12]. U.S. CONST. art. III, § 2, cl. 1.
[FN13]. See, e.g., Mathers v. Texaco, Inc., 421 P.2d 771 (N.M. 1966) (construing statutory groundwater rights); Fundingsland v. Colo. Ground Water Comm'n, 468 P.2d 835 (Colo. 1970)Baker v. Ore-Ida Foods, Inc., 513 P.2d 627 (Idaho 1973) (construing groundwater rights pursuant to Idaho's Groundwater Act).
(interpreting Colorado's Constitution in assessing the prior appropriation doctrine);
[FN2]. Boundary Waters Treaty, supra note 1, art. III.
[FN3]. Noah Hall, Bilateral Breakdown: U.S.-Canada Pollution Disputes, 21 NAT. RESOURCES & ENV'T. 18, 19 (2006).
[FN4]. The International Joint Commission, Mission Statement, available at http://www.ijc.org/en/home/main_accueil.htm (last visited May 28, 2009).
[FN5]. For example, United States Commissioner Allen Olson and Canadian Commissioner Jack Blaney have been using their “good offices” on behalf of the IJC to seek a resolution to a problem between North Dakota and the Province of Manitoba over North Dakota's Devil's Lake. Interview with Allen I. Olson, I.J.C. Commissioner, in Detroit, Mich. (Feb. 5, 2009).
[FN6]. The joint border includes some 150 lakes and rivers, which comprise ninety percent of the surface fresh water in North America, as well as over twenty percent of the earth's useable surface fresh water. Hall, supra note 3, at 18.
[FN7]. International Joint Commission, Canada and United States, 2003 Annual Report, available at http://www.ijc.org/php/publications/pdf/ID1555.pdf (last visited May 29, 2009).
[FN8]. Referrals to the IJC for non-binding recommendations may occur “whenever either the Government of the United States or the Government of the Dominion of Canada shall request.” Boundary Waters Treaty, supra note 1, art. IX. Due to the requirement of a reference, individuals cannot request the IJC to act. Id. Nevertheless, a solitary citizen or groups may petition their respective governments for a reference. Id. art. X. However, such requests may, in some cases, raise delicate political questions.
[FN9]. Interview with Frank Bevacqua, Public Information Officer for the IJC's Washington office, at 2401 Pennsylvania Avenue, N.W., Fourth Floor, Washington, D.C. 20440 (Jan. 15, 2008).
[FN10]. See, e.g., Mimi Larsen Becker, The International Joint Commission and Public Participation: Past Experiences, Present Challenges, Future Tasks, 33 NAT. RESOURCES J. 235, 237 (1993); The Right Honourable Herb Gray, Proceedings of the Canada-United States Law Institute Conference on Understanding Each Other Across the Largest Undefended Border in History, 31 CAN.-U.S. L.J. 287, 299 (2005) (observing that only when the public is “vigilant” can international agreements be successful).
[FN11]. At the February 5, 2009, conference giving rise to this Symposium issue, I directed a question to U.S. Commissioner Allen I. Olson regarding a party's ability to submit an amicus brief. He responded that in his view the submission of amicus briefs is just another form of public participation. Interview with Allen I. Olson, supra note 5.
[FN12]. U.S. CONST. art. III, § 2, cl. 1.
[FN13]. See, e.g., Mathers v. Texaco, Inc., 421 P.2d 771 (N.M. 1966) (construing statutory groundwater rights); Fundingsland v. Colo. Ground Water Comm'n, 468 P.2d 835 (Colo. 1970)Baker v. Ore-Ida Foods, Inc., 513 P.2d 627 (Idaho 1973) (construing groundwater rights pursuant to Idaho's Groundwater Act).
(interpreting Colorado's Constitution in assessing the prior appropriation doctrine);
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