There are only seven days until the Columbia River Treaty turns 50! All eyes are on the US Department of State and the Canadian Department of Foreign Affairs, Trade and Development, to see if they are going to make their official decisions regarding Treaty continuation, modification, and termination in the near future. While we wait I thought I would publish a post a day in the lead up to the Treaty’s golden anniversary.
Today’s post looks at how disputes are resolved within the Treaty. While heralded as a premier example of cooperation in transboundary river management, the Treaty has seen its share of growing pains through implementation over the past 50 years. John Hyde’s paper, Columbia River Treaty Past and Future, provides nice vignettes of past differences and how the two nations addressed them using the dispute resolution mechanisms within the Treaty.
Article XVI of the Treaty describes how the two nations are to settle differences in treaty implementation (see the figure below for a diagram). First, the two nations are to try to resolve the difference themselves through the Entities (the agencies tasked with implementing the Treaty, BC Hydro for Canada along with Bonneville Power Administration and the US Army Corps for the US), the Permanent Engineering Board (PEB, a body of Canadian and American appointees which assembles flow records, assists in settling differences between the Entities, and creates annual reports), and/or an exchange of notes. If they are unable to come to an agreement then either Canada or the US may refer the issue to the International Joint Commission (IJC) for a decision. If after three months the IJC has not made a decision then either nation may request arbitration by a tribunal consisting of three members (one appointed by Canada, one appointed by the US, and one jointly appointed by both nations). A decision by either the IJC or tribunal is binding.
For the life of the Treaty, no request has been made to the IJC (though it has played a role in other non-Treaty differences in the Columbia River Basin). Rather, the Entities, have resolved all disputes on their own or with assistance from the PEB, and on rare occasion, the British Columbia government, the Canadian Ministry of Foreign Affairs and Trade, and the U.S. Departments of State, Army, and Energy. Those larger disputes requiring assistance from outside the Entities centered on three issues: 1) non-treaty storage, 2) operation of dams for fish and wildlife objectives with power and other impacts, and 3) methods for calculating the amount and delivery of the Canadian Entitlement. Hyde notes that central to addressing disputes out of court is a strong working relationship between the US and Canadian Entities and a concerted effort to focus on win-win strategies in negotiation, sharing technical information and analysis, developing creative alternatives, and avoiding legal disputes.
Why does this matter in the Treaty reviews?
As I pointed out in my post about common Treaty misconceptions, regardless of the Treaty decision, the two nations will need to work out how to implement “Called Upon.” The two nations have very different views on the subject and the procedures for Called Upon are not spelled out in the Treaty. Therefore, as they have done for the past 50 years, the Entities (as well as others, if needed) will need to worth together to define operations under Called Upon and how payment will be made to Canada. If the Entities cannot work out a plan that is acceptable to the PEB and two nations, then it will move up the levels of dispute resolution laid out in the Treaty.
It is also worth noting that where the Entities had difficulty working out past issues on their own are some of big concerns laid out in the recommendations from the Province of BC and US Entities/PNW Region. The two recommendations present differing views on ecosystem function and the Canadian Entitlement, which may prove challenging if the recommendations to modify the Treaty are adopted and the countries prepare to negotiate. That being said, the Entities may be able to build upon their previous experiences, if their respective governments seek to modify the Treaty and utilize the Entities’ expertise.