The International Joint Commission as a model mechanism for transboundary water relations
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Contributed by:Charles van Rees
Article last edited 17 May 2013 by Cvanrees
Article originally added by Cvanrees
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This article is linked to U.S.-Canada Transboundary Water Management
The International Joint Commission (IJC) has proven itself an incredibly effective and surprisingly consistent institution in providing neutral assessment of water management conflicts between the United States and Canada. Despite its impressive ability to maintain political neutrality and provide high quality, unbiased information on important issues, it has still failed to resolve certain issues which persist as political irritants between the two countries.Though the success of the IJC suggests that similar institutions should be created in similar transboundary water allocation situations, a focus on the situations in which it failed to achieve its goal expose weaknesses that might otherwise be overlooked and are worth careful consideration. For example, in the Devils Lake Outlet dispute, the IJC, despite having great relevance to the situation at hand, was excluded from the analysis, and was powerless to act when its participation was not solicited by both governments.
Whorley (2008) mentioned that the U.S. party’s reluctance to allow the IJC to be involved with the Devil’s Lake Outlet was likely due to their experiences with the proposed Garrison Diversion projects, some of which were prevented from occurring due to assessments by the IJC.[1] The Garrison Diversion project, passed by Congress in 1968, involved diverting water from the Missouri river into parts of North Dakota, but was opposed on environmental grounds after investigation by the IJC and was only implemented in extremely reduced form after a delay of about 20[2]Though the federal government may have indicated a desire to solicit the IJC for input in the project planning and implementation of the outlet, the state government’s unilateral action may have come about with the intention of excluding IJC to prevent further stymieing of water development plans by the IJC.
Two mechanisms allowed North Dakota’s government the ability to act unilaterally and without concern for downstream stakeholders. The first is a formal one; that the IJC cannot force its participation in any situation, but must be approached by one or both of the parties. It is unclear whether it is permitted to do so in cases where the BWT is being violated (as it may have been, in a way, with the potential biotic transfer in the Devil’s Lake Outlet), but it certainly did not do so in that case. If the IJC could involve itself in any case where it was necessary to ensure one country did not harm the other through water management actions, it would not be so easily “sidelined” for important decisions.
The second mechanism is an “informal” one, where, out of politeness, the governments of the United States and Canada do not solicit the participation of the IJC unless it can be done jointly. This creates problems when one of the two countries fears interference from the IJC, which may have happened with the Devil’s Lake Outlet case[3] When it is in one country’s interests not to invoke the IJC, it should be understood and acceptable that the other can invoke the IJC unilaterally to protect their own interests without retaliation or hostility from the other.
There do not appear to be any mechanisms in the BWT which can prevent the IJC from being “sidelined” where one or both of the participating parties does not solicit its help, except in cases where one of the two nations begins a project which will affect the water resources of the other. This mechanism may need to be expanded to explicitly include the actions of states within nations, or to include water management actions which affect ecosystems in addition to the water quality and quantity downstream.
In this way, though it may be preferable that the IJC does not have the sort of enforcement and police powers that would make it what Allen Olson (2008) called a “big brother” figure, it should at least have the capacity to involve itself, at least informally, in areas where it could contribute to the equity and efficiency of a project.[4] Likewise, the culture around the IJC may need to shift from one of bilateral harmony if one country takes advantage of such implicit agreements to suit its own interests at the expense of the other.
- ^ Whorley, D. 2008. The Devil’s Lake Outlet and Canada-U.S. Transboundary Water Relations; Or, How George C. Gibbons Got the Last Laugh. 31 Hamline L. Rev. 615. 20 pp.
- ^ State Historical Society of North Dakota, 2013. State Historical Society of North Dakota website, Summary of North Dakota history. Available at: http://history.nd.gov/ndhistory/garrison.html. Accessed May 2013.
- ^ Whorley, D. 2008. The Devil’s Lake Outlet and Canada-U.S. Transboundary Water Relations; Or, How George C. Gibbons Got the Last Laugh. 31 Hamline L. Rev. 615. 20 pp.
- ^ Olson, A.I. 2008. Remarks of Allen I. Olson, Commissioner, International Joint Commission. Panel I: The Boundary Waters Treaty and Canada-U.S. Relations. Wayne Law Review 54, pp. 1461-1468
