Settlement of international disputes between Canada and the USA.

Author:King, Henry T., Jr.
Position:P. 9-45
 
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PREFACE 1. Resolution of the American Bar Association 2. Resolution of the Canadian Bar Association 3. [French portion of the Settlement of Disputes Between Canada and USA omitted] 4. Draft Treaty on a Regime of Equal Access and Remedy in Cases of Transfrontier Pollution 5. [French portion of the Settlement of Disputes Between Canada and USA omitted] 6. Draft Treaty on a Third-Party Settlement of Disputes 7. [French portion of the Settlement of Disputes Between Canada and USA omitted] 8. Report to the Executive and to the 1979 Annual Meeting of the Canadian Bar Association 9. Report to the House of Delegates of the American Bar Association by the Section of International Law 10. Report and Recommendations of the American and Canadian Bar Associations Joint Working Group on the Settlement of International Disputes AMERICAN BAR ASSOCIATION AND CANADIAN BAR ASSOCIATION

Resolution Adopted By the American Bar Association on 15 August 1979 and By the Canadian Bar Association on 30 August 1979 with Accompanying Reports and Recommendations 20 September 1979

PREFACE

On 15 and 30 August, respectively, the American and Canadian Bar Associations took a historic step, approving and recommending to the attention of the Canadian and the United States Governments, as possible basis for negotiation, two important documents:

(a) a draft treaty on a regime of equal access and remedy in cases of transfrontier pollution between Canada and the United States; and

(b) a draft treaty on third party settlement of disputes relating primarily to the interpretation, application or operation of any treaty in force between Canada and the United States.

This volume contains the English [...] texts of the two resolutions and the two treatises, the special report presented to the House of Delegates of the American Bar Association by that Association's Section of International Law, and, last but not least, the extensive report of the Joint Working Group on the Settlement of International Disputes, which for several years has studied the subject and prepared by a truly joint effort both the draft treatises and a commentary on them, together with a comprehensive survey of the many and varied disputes between the two countries, of the means used for their settlement, and of the needs for the improvement and reinforcement of existing procedures.

The two chairmen of the Working Group are grateful to the members of the Group for their contributions to the final report and especially the cooperative spirit in which they have worked, and to the two Associations and their officers for the constant support they have received in completing this arduous but rewarding task.

Henry T. King, Jr.

T. Bradbrooke Smith, Q.C.

Co-Chairmen of the Joint Working Group on the Settlement of International Disputes

American and Canadian Bar Associations

  1. RESOLUTION

    Adopted by the House of Delegates of the American Bar Association at Dallas, Texas, on 15 August 1979.

    BE IT RESOLVED, that the American Bar Association commends to the attention of the competent officials of the Government of the United States, as possible bases for negotiation with the Government of Canada:

    (a) the draft treaty on a regime of equal access and remedy in cases of transfrontier pollution between the United States and Canada; and

    (b) the draft treaty on third party settlement of disputes relating primarily to the interpretation, application, or operation of any treaty in force between the United States and Canada,

    which are contained in the Report of March 20, 1979 of the American and Canadian Bar Associations Joint Working Group on the Settlement of International Disputes.

  2. RESOLUTION

    Adopted by the Canadian Bar Association at Calgary, Alberta, on 30 August 1979.

    BE IT RESOLVED THAT the Canadian Bar Association commends to the attention of the competent officials of the Government of Canada as possible bases for negotiation with the Government of the United States:

    (a) the draft treaty on a regime of equal access and remedy in cases of transfrontier pollution between the United States and Canada; and

    (b) the draft treaty on third party settlement of disputes relating primarily to the interpretation, application, or operation of any treaty in force between the United States and Canada,

    which are contained in the Report of March 20, 1979 of the American and Canadian Bar Association Joint Working Group on the Settlement of International Disputes.

    [French portion of the Settlement of Disputes Between Canada and USA omitted.]

  3. DRAFT TREATY ON A REGIME OF EQUAL ACCESS AND REMEDY IN CASES OF TRANSFRONTIER POLLUTION

    Article 1: Definitions

    For the purposes of this Treaty:

    (a) "Pollution" means any introduction by man, directly or indirectly, of substance or energy into the environment resulting in deleterious effects of such a nature as to endanger human health, harm living resources or eco-systems, impair amenities or interfere with other legitimate uses of the environment. (1)

    (b) "Domestic pollution" means any intentional or unintentional pollution, the physical origin of which is situated wholly within the area under the jurisdiction of one Party and which has effects within that area only. (2)

    (c) "Transfrontier pollution" means any intentional or unintentional pollution whose physical origin is subject to, and situated wholly or in part within the area under the jurisdiction of one Party and which has effects in the area under the jurisdiction of the other Party. (3)

    (d) "Country of origin" means the Country within which, and subject to the jurisdiction of which, transfrontier pollution originates or could originate in connection with activities carded on or contemplated in that Country. (4)

    (e) "Exposed Country" means the Country affected by transfrontier pollution or exposed to a significant risk of transfrontier pollution.(5)

    (f) "Persons" means any natural or legal person, either private or public. (6)

    Article 2: Rights of Persons Affected (7)

    (a) The Country of origin shall ensure that any natural or legal person resident in the exposed Country, who has suffered transfrontier pollution damage or is exposed to a risk of transfrontier pollution, shall at least receive equivalent treatment to that afforded in the Country of origin, in cases of domestic pollution or the risk thereof and in comparable circumstances, to persons of equivalent condition or status resident in the Country of origin.

    (b) From a procedural standpoint, this treatment shall include but shall not be limited to the right to take part in, or have resort to, all administrative and judicial procedures existing within the Country of origin, in order to prevent domestic pollution, to have it abated, and/or to obtain compensation for the damage caused.

    (c) In the case of requirements for security of cost, this treatment shall at least be equivalent to that accorded to a nonresident national of the Country of origin.

    Article 3: Rights of Public and Private Organizations (8)

    (a) (1) Where the domestic law of either Party or a political subdivision thereof permits persons who are resident or incorporated within its own territory, such as environmental defense associations, to commence or to participate in administrative and judicial procedures to safeguard general environmental interests, that Party or subdivision shall grant the same rights for comparable matters to similar persons resident or incorporated in the territory of the other Party, provided that these persons satisfy the conditions laid down for persons resident or incorporated in the Country of origin.

    (2) When some of the conditions concerning matters of form laid down in the Country of origin cannot reasonably be imposed on persons resident or incorporated in the exposed Country, these latter should be entitled to commence proceedings in the Country of origin if they satisfy comparable conditions.

    (b) When the law of a Party or a political subdivision thereof permits a public authority to participate in administrative or judicial procedures in order to safeguard general environmental interests, that Party shall provide competent public authorities of the exposed Country with equivalent access to such procedures.

    Article 4: Notice to Persons in the Exposed Country

    (a) The Country of origin shall take any appropriate measures to provide persons exposed to a significant risk of transfrontier pollution with notice sufficient in form and content to enable them to exercise in a timely manner the rights referred to in this Treaty. As far as possible, such notice should be at least equivalent to that provided in the Country of origin in cases of comparable domestic pollution. It shall be sent also to any authority designated for this purpose by the exposed Country.

    (b) The exposed Country may designate one or more authorities which will have the duty to receive and the responsibility to disseminate such notice within limits of time compatible with the exercise of existing procedures in the Country of origin.

    (c) Where such an authority has been designated, notification to it shall constitute fulfillment of the obligation of the Country of origin under paragraph (a). Failure of the exposed Country to designate an authority under paragraph (b) in no way affects the obligation of the Country of origin under paragraph (a).

    Article 5: Limitation of Rights Granted

    In no event shall the provisions of this Treaty be construed as granting, per se, any greater rights to persons resident or incorporated in the exposed Country than those enjoyed by persons of equivalent condition or status resident or incorporated in the Country of origin.

    [French portion of the Settlement of Disputes Between Canada and USA omitted.]

  4. DRAFT TREATY ON A THIRD-PARTY SETTLEMENT OF DISPUTES

    Article 1: Compulsory Jurisdiction

    In any dispute between the States Parties, any question of interpretation, application or operation of a treaty in force between them, which has not been settled within...

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