From supranational to intertribal - Governing Transboundary Waters: Canada, the United States, and Indigenous Communities - page 48

creation of a supranational court to adjudicate boundary water disputes. The United
States opted for the “weaker” version that limited the arbitral powers of the
proposed IJC. The U.S. position is unsurprising given that during the time of the
Treaty negotiation, the Harmon Doctrine 3 - which maintains that a country is
sovereign over the portion of an international watercourse within its borders - was
at the forefront of American thinking (McCaffrey, 1996).
In the end, the “weaker version” of the Treaty was adopted. Although some
considered the limited scope of the Treaty a major concession by Canada at the
time, many water policy experts suggest that the limited arbitral capacity is actually
a key contributor to the longevity of the BWT, ultimately suggesting that
governments would likely shy away from the IJC if the mechanisms were too
binding or authoritative. This follows the observations within international environ-
mental governance literature that upholding State sovereignty limits international
agreements (Adamson, 2005). But, again, a key point to remember in the context
of Indigenous governance is that if you are not party to the agreement, you are
unable to fully participate on a nation-to-nation basis.
Supporters of the Treaty often describe it as a “resilient document” with the
flexibility to adapt to changing border demographics and new demands for water
use. Part of this “success” follows Corti's (1997) observation that the commons is
best looked after when an immediate and well-defined interest exists and the states
are likely to incur costs with its neglect. The socio-economic and political costs
associated with the numerous shared waterways suggest that perhaps the success
of the BWT was a political inevitability.
Those more critical of the BWT suggest that despite its longevity and flexibility,
the Treaty has yet to reach its full potential (Carroll, 1981; Dreisziger, 1981). In
fact, many current water managers, particularly at the subnational level, argue that
the limited authority of the Commission is a key reason why the BWT consistently
fails to live up to its original mandate.
At the very least, the creators of the BWT recognized that conflict involving
transboundary water was inevitable - especially in light of the extraordinary length
of the border and the large number of water bodies between Canada and the United
States (Holmes, 1981). Addressing this point, the BWT puts in place mechanisms
to regulate, and if possible, resolve what they refer to as “endless and normal”
transboundary dispute s. 4 Most notably, Article X of the BWT specifies the creation
of the International Joint Commission (IJC), an independent commission to
regulate, review, and resolve issues relating to the boundary and transboundary
waters of Canada and the United States. At the time of negotiation, two issues -
St. Mary and Milk Rivers in the west and the Niagara hydro development in the
east - were considered major irritants. Both of these issues were resolved peacefully
through employing the BWT (although issues related to the equitability of the
allocation of water through the St. Mary-Milk Rivers continues to be a source
of consternation between actors (Bankes and Bourget, 2013). An ongoing legacy
of the BWT is the establishment of the International Joint Commission, described
below.