Going with the Flow: Sovereignty, Cooperation and Governance of US-Canada Transboundary and Boundary Waters

Canada in International Law at 150 and Beyond Paper No. 3

January 11, 2018

Water is a dynamic substance that flows, ignoring borders and calling for cooperation between states that share transboundary and boundary waters. Canada occupies a unique place globally insofar as it has a long and successful history of cooperative freshwater governance with the United States. To understand how Canada has successfully and peacefully managed the freshwater reserves it shares geographically with the United States, this paper looks back to the early days of Canada and US cooperation when concluding the Boundary Waters Treaty of 1909 (BWT). With this treaty as a centrepiece, this paper examines the status of international law at the time, the results of the negotiations, and how the BWT has advanced legal principles in its long implementation. The paper compares these bilateral achievements with international law elsewhere, leading to a conclusion that Canada and the United States have advanced and progressively implemented international legal principles on freshwater management that are both pioneering and a model of what can be achieved when there is a commitment to joint governance over shared resources between riparian states.

Part of Series

Canada in International Law at 150 and Beyond/Canada et droit international : 150 ans d’histoire et perspectives d’avenir

Marking 150 years since Confederation provides an opportunity for Canadian international law practitioners and scholars to reflect on Canada’s past, present and future in international law and governance. This series of essays, written in the official language chosen by the authors, that provides a critical perspective on Canada’s past and present in international law, surveys the challenges that lie before us and offers renewed focus for Canada’s pursuit of global justice and the rule of law. The project leaders were Oonagh E. Fitzgerald, director of the International Law Research Program at the Centre for International Governance Innovation (CIGI); Valerie Hughes, CIGI senior fellow, adjunct assistant professor of law at Queen’s University and former director at the World Trade Organization; and Mark Jewett, CIGI senior fellow, counsel to the law firm Bennett Jones, and former general counsel and corporate secretary of the Bank of Canada. The series was published as a book titled Reflections on Canada’s Past, Present and Future in International Law/Réflexions sur le passé, le présent et l’avenir du Canada en matière de droit international in spring 2018.

About the Authors

Dean Sherratt is a retired Canadian government diplomat and lawyer who served 30 years in the foreign service.

Marcus Davies is a lawyer in the Oceans and Environmental Law Division of the Legal Affairs Bureau at the Department of Global Affairs, Trade and Development Canada.