Volume 11, Number 3, 1980 Quelques jalons de l’apport canadien au droit international Guest-edited by Annemarie Jacomy-Millette, Maxwell Cohen, Léonard Legault and Donat Pharand

EN:

The general character of Canada-U.S. relations would have been sharply different in the past 65-70 years had there not been established the International Joint Commission under the Boundary Waters Treaty of 1909.

That Treaty anticipated in a remarkably prophetic way the lively and sometimes dangerous disputes that arise over shared water resources, boundary and trans-boundary. By providing a mechanism for the settlement of disputes over boundary and trans-boundary water courses, lakes, rivers, etc. and by providing also an investigative mechanism for all other disputes that' may take place along the boundary, the framers of the Boundary Waters Treaty created perhaps better than they knew. For the International Joint Commission has proven to be an instrument of flexibility and high utility. For almost 70 years it has issued Orders of Approval in over 50 cases involving the construction of works affecting the levels and flows of boundary waters as well as causing trans-boundary waters to rise at the boundary and therefore, requiring the approval of the Commission. The whole question of water use/water allocation between neighbouring states sharing common river basins or having rivers and lakes as boundaries is involved in this exercise.

It could not have been foreseen, however, that the pioneer language of the pollution provisions of the Boundary Waters Treaty should have moved the Commission with ease into the environmental era. While the Commission was investigating pollution of water questions as early as 1912, and while it recommended a Canada-U.S. Great Lakes Pollution Treaty as early as 1920, it was a great achievement of both countries in signing the Great Lakes Water Quality Agreement in 1972 and again in 1978, which created the massive environmental role as monitor, co-ordinator and advisor that the Commission now plays in relation to both governments in the Great Lakes basin, and also, in the other watersheds along the 5 500 mile frontier of both countries.

With the rise in the knowledge of air pollution, and the interfacing between air, water and land use, there is now a whole complex that is ecologically at the basis of the concerns of Canada and the United States and is of prime interest to the Commission, and has become a fundamental aspect of its work.

The future of the Commission is vital to the future of both countries as its successful past has been in maintaining reasonably friendly relations despite the tensions which disputes over water resources can cause. It is the thrust of this paper to describe and demonstrate the processes in dispute avoidance and dispute settlement, in shared resource-planning, for which the Boundary Waters Treaty, the Great Lakes Quality Agreement and the work of the Commission now stand.

EN:

The purpose of this article is to indicate how the decisions of the Trail Smelter Arbitral Tribunal, rendered in 1938 and 1941, have made a contribution to the development of international law, including, in particular, the emerging international legal rules relating to transboundary air pollution. Of particular importance was the Tribunal's enunciation of the principle of the international liability of a pollution-source state.

The influence of the Trail Smelter case is examined in the light of the Corfu ChannelCase, the Nuclear Test Ban Treaty (1963), the Helsinki Rules (1966), the Stockholm Principles (1972), the Nuclear Test Cases (1973-74), the OECD Principles concerning Transfrontier Pollution (1974 and 1976), and the Joint Statement on Transboundary Air Quality by Canada and the United States (1979).

Two of the most difficult problems for solution in the case of transboundary pollution are: (1) equal access and non-discrimination with respect to remedies, and (2) liability and compensation. Canadian law has certain gaps in this regard. These and other problems of transboundary pollution pose a challenge for the 1980s and the TrailSmelter principle could make a contribution to their solution.

EN:

The decade-long process of negotiation leading to a new regime of Oceans Law is drawing to a close. One of its major achievements to date is the elaboration of an entirely new concept in ocean space, the exclusive economic zone. Canada has played a leading role in bringing about consensus on the main elements of this zonal approach, a bridge linking certain features of the territorial sea regime with a number of safeguards derived from the exercise of high seas rights.

Canada 's contribution was based generally on a novel application of the functional approach which has been prevalent in Canada 's treatment of Law of the Sea issues over the past few years. The idea was to apply the principles of delegation of powers to those of functionalism, in order to foster a zonal approach whereby certain functional rights and obligations (pertaining, for instance, to fisheries or to the marine environment) would be carried out by the coastal state on behalf of the international community. In recognition of its exercise of this mandate, and in regard to its geographical proximity to the ocean space it managed, the coastal state would be granted a preferential (and for most purposes an exclusive) access to the resources of the zone.

One of the best examples of this approach can be found in Canada 's earliest efforts to deal with the fundamental issue of fishing rights at the Conference. Bringing a multi-disciplinary focus to bear on the need to distinguish between different species of fish in the coastal areas, the Canadian delegation, with the co-sponsorship of a number of like-minded countries, brought forward proposals tailored to the management and exploitation of these species.

EN:

Immediately after the adoption of its Arctic Pollution Prevention Act in 1970, Canada embarked on intense diplomatic efforts in a number of international for a to obtain recognition of international law principles which would serve as a basis for its legislation. These efforts were pursued mainly in three international conferences : the Stockholm Conference on the Human Environment of 1972, the London Conference of the International Maritime Consultative Organization on the prevention of pollution by ships in 1973 and the United Nations Third Law of the Sea Conference which began in 1974 at Caracas.

At the 1975 session of that Conference, held in Geneva, a form of Artic clause was inserted in the first Negotiating Text and it provided that coastal States could adopt special protective measures in special areas within their exclusive economic zone, where exceptional hazards to navigation prevailed and marine pollution could cause irreversible disturbance of the ecological balance. In 1976, the provision was enlarged to enable coastal States themselves to enforce such protectives measures, instead of leaving the enforcement to the flag State, and the provision has been kept without change in all the subsequent negotiating texts of 1977, 1979 and 1980. Considering the wide consensus which this provision has received, particularly on the part of other Arctic States, it may now be regarded as part of customary international law and completely validates Canada's arctic legislation.

EN:

The nuclear satellite Cosmos 954 was launched by the Soviet Union in September 1977. Due to some difficulties in functioning, Cosmos 954 made an unscheduled return to earth and its debris scattered over a large portion of Canadian territory on January 24, 1978.

The Canadian government, informed that the satellite had radioactive material on board, immediately began urgent operations to reduce the actual damage and to return the territory affected to its normal condition. Considering that the costs incurred during the operations should be claimed from the Soviet Union, the Government of Canada prepared a claim based in particular on the Convention on International Liability for Damage caused by space objects. The claim was presented to the Soviet representative on January 23, 1979.

The Canadian government alleged that Canada sustained damage from the return on earth of the Cosmos 954 satellite. The Soviet Union, as the launching State, is absolutely responsible and should pay an appropriate amount of compensation. The amount claimed is slightly over 6 million dollars.

Canada, subsequent to the incident, has proposed to the United Nations the adoption of a new regime for the use of nuclear energy in outer space.

EN:

This paper is concerned with examining the role Canada has played in the development of the law of armed conflict. It makes the point that, while it is generally assumed that the Canadian courts followed the practice of those in the United Kingdom, this is too simple an approach. From the early years of the nineteenth century, the Vice-Admiralty Court in Halifax was making a contribution to the law of prize and maritime war law that might be compared with that of Lord Stowell in England. Moreover, even then, it was applying principles that have only recently been generally accepted — that armed conflict is as much a question of fact as of law, and that naval officers, at least, must be taken to know the law. It is hardly believable that as long ago as 1814, Dr. Croke was upholding the immunity from capture of "the arts and sciences... as the property of mankind at large, and as belonging to the common interests of the whole species. " In addition to these early decisions in maritime war law, the Canadian courts have stood almost alone in the English-speaking world in explaining the criminal liability of escaping prisoners of war, in terms which to some extent formed the basis of what appeared in the Geneva Convention of 1949. At the same time, a Canadian war crimes tribunal made an important contribution to the exposition of the nature of a commander's liability for the offences of his subordinates, while others added to the jurisprudence concerned with the nature of the defence of superior orders.

In so far as an actual innovative contribution is concerned, it must not be forgotten that the enunciation by Daniel Webster in 1842 of the concept of self-defence as understood in international law resulted from the actions of loyalists during the 1837 Rebellion. More recently, Canada played a concrete role in the drafting of the 1977 Protocols additional to the 1949 Geneva Conventions for the development of humanitarian law in armed conflict. In fact, Protocol II relating to non-international conflict is almost entirely based on a Canadian draft expressing Canada*s concern to see principles of humanitarian law observed as widely as possible, regardless of the nature of the conflict. As a result of tracing Canada 's role one is led to the conclusion that itconstitutes a record of achievement that merits wider appreciation.