THE CANADIAN-AMERICAN BOUNDARY WATERS TREATY: WHY ARTICLE II?

Abstract

Both parties to the dispute over development of the Columbia Water Basin appear to believe that Article II of the Boundary Waters Treaty would allow Canada to divert the water flow away from the United States. The question then arises as to whether, should diversion occur, redress by way of damages would be available to American claimants and, if so, to which categories of claimants. The author explores whether only private individuals may submit claims or whether the United States itself as a High Contracting Party also has the right to damages. To undertake this exploration, he analyses the wording of Article II of the Treaty, the thrust of both nations’ interpretations, the effect of customary international law, those issues specific to the dispute over water as opposed to other international disputes and the significance of the Harmon doctrine.