¹ It was “a sort of paradise in this world.… I never dreamed that I would abandon the shores of Barbados permanently”: Interview, Feb. 11, 1992, p. 14. For an instructive discussion of the general background, including the darker days of life in Barbados, see Green, Jack P., “Changing Identity in the British Caribbean: Barbados as a Case Study,” in Canny, Nicholas and Pagden, Anthony (eds.), Colonial Identity in the Atlantic World 1500–1800 213–67 (Princeton, N.J.: Princeton University Press, 1987).CrossRefGoogle Scholar

² University of Toronto Archives A82–0041.

³ Ibid.

⁴ Bourne enclosed three letters of reference: one from the senior tutor of St. Edmund Hall, Oxford; one from the principal of St. Edmund Hall; and one from W. A. Farmer, acting headmaster of the Lodge School, Barbados.

⁵ These awards, the bequest of the late Colonel R. W. Leonard, each bore a value of $300 with free tuition for four years to a total possible value of $900. They were awarded for general proficiency to students from schools situated outside Toronto. See Faculty of Arts Class and Prize Lists 1942 (Toronto: University of Toronto Press, 1942), University of Toronto Archives P78–0159, (01)–(27).

⁶ Interview, Feb. 11, 1992, p. 1.

⁷ On Kennedy, see R. C. B. Risk, “The Many Minds of W. P. M. Kennedy” (journal article forthcoming).

⁸ On the School of Law, see Kennedy, W. P. M., “Legal Subjects in the Universities of Canada,” (1933) 10 J.S.P.T.L. 23Google Scholar; Kennedy, W. P. M., “Law as a Social Science” (1934) 3 South African L.T., 100Google Scholar; Kennedy, W. P. M., “A Project of Legal Education,” The Scots Law Times (Jan. 9, Jan. 16, Jan. 23, 1937) 1, 17, and 21 respectively.Google Scholar

⁹ See Faculty of Arts Class and Prize Lists 1942 (Toronto: University of Toronto Press, 1942), University of Toronto Archives P78–0159, (01)–(27).

¹⁰ See Faculty of Arts Class and Prize Lists 1943 (Toronto: University of Toronto Press, 1943), University of Toronto Archives P78–0159, (01)–(27).

¹¹ Ibid.

¹² This scholarship, the gift of the late Hon. N. W. Rowell and Mrs. Rowell in memory of their son Langford Rowell, bore a value of $50.

¹³ See Ian Kyer, C. and Bickenbach, Jerome E., The Fiercest Debate: Cedi A. Wright, the Benchers and Legal Education in Ontario 1925–1957 (Toronto: University of Toronto Press of the Osgoode Society, 1987).CrossRefGoogle Scholar

¹⁴ Interview, Dec. 12, 1992, p.21, 22. See too Bourne, Charles B., “The Law Club” (April 5, 1944) The School of Law Review 4.Google Scholar

¹⁵ See Faculty of Arts Class and Prize Lists 1944 (Toronto: University of Toronto Press, 1944), University of Toronto Archives P78–0159, (01)–(27).

¹⁶ This scholarship, the gift of the Hon. Charles McCrea and Mrs. McCrea in memory of their son, bore a value of $50.

¹⁷ This prize, the gift of Romaine K. Ross, LL.B., bore a value of $20.

¹⁸ “15th Law Club Banquet to Hear Ray Atherton,” The [University of Toronto] Varsity (Mar. 16, 1945) 3; and see Bourne, Charles B., “The Law Club” (Dec. 16, 1944), The School of Law Review 4.Google Scholar

¹⁹ University of Toronto Archives A82–0041.

²⁰ See Faculty of Arts Class and Prize Lists 1945 (Toronto: University of Toronto Press, 1945), University of Toronto Archives P78–0159, (01)–(27).

²¹ This prize, the gift of the Labour Research Institute, bore a value of $25 in books dealing with trade-union law.

²² This medal, the gift of friends of the late Angus MacMurchy, B.A., 1882, K.C., a former governor of the university, recognizes the graduating student with the highest cumulative average while at law school.

²³ For the general background, see Brooke, Christopher N. L., A History of the University of Cambridge, Volume Four: 1970–1990 (Cambridge: Cambridge University Press, 1992)Google Scholar; Leedham-Green, E. S., Concise History of the University of Cambridge (Cambridge: Cambridge University Press, 1996)Google Scholar; Baker, J. H., 750 Years of Law at Cambridge (Cambridge: The Secretary, Faculty of Law, 1996).Google Scholar

²⁴ The common law program was designed for students who wanted subjects of English law as opposed to Roman and international law. Bourne chose four courses: trusts, conflict of laws, sale of goods, and damage to land and chattels.

²⁵ “A starred first was one of unusual distinction. They are still awarded from time to time, but are, and always were, scarce.” Leedham-Green, E. S., assistant keeper of the Archives, Cambridge, to Macdonald, R. St. J., Aug. 21, 1996, 1.Google Scholar For an account of the bizarre circumstances surrounding William Wright’s benefaction, see Torry, A. F., Founders and Benefactors of St. John’s College 82–83 (Cambridge: Cambridge University Press, 1888).Google Scholar

²⁶ When Bourne returned to Canada, Kennedy, W .P. M. accepted the paper for publication in the University of Toronto Law Journal: “Discretionary Powers of Public Authorities: Their Control by the Courts” (1947–48) 7 U.T.L.J. 395Google Scholar. Aside from a case comment written at Cambridge, this paper represented Bourne’s first publication; he claims not to be particularly proud of it and regards it as the kind of piece that a student would write.

²⁷ For a general history of the college, see Miller, E., Portrait of a College (Cambridge: Cambridge University Press, 1961, reprinted 1993).Google Scholar

²⁸ On the College of Law, see McConnell, W. H., Prairie Justice ch. 4 (Calgary: Burroughs, 1980)Google Scholar; Cony, James A., My Life and Work (Kingston: Queen’s University Press, 1981)Google Scholar. On Cronkite, see McConnell, W. H., “Dean Emeritus F. C. Cronkite, Q.C.: A Profile” (1973–74) 38 Sask. L. Rev. 375Google Scholar. On Douglas, see McLeod, Thomas H. and McLeod, Ian, Tommy Douglas: The Road to Jerusalem (Edmonton: Hurtig, 1988)Google Scholar. On international law at the College of Law, see Macdonald, R. St. J., “An Historical Introduction to the Teaching of International Law in Canada: Part III” (1976) 14 Canadian Yearbook of International Law 224 at 231.CrossRefGoogle Scholar

²⁹ Full professors earned $5,000, and the dean earned $5,500.

³⁰ See Wesley Pue, W., Law School: The Story of Legal Education in British Columbia (Vancouver: Continuing Legal Education Society of British Columbia, 1995)Google Scholar. For background on the city and province in which the University of British Columbia law school is situated, see Barman, Jean, The West Beyond the West: A History of British Columbia (Toronto: University of Toronto Press, revised ed., 1996)Google Scholar; Griffin, Kevin, Vancouver’s Many Faces: Passport to the Cultures of a City (Vancouver and Toronto: Whitecap Books, 1993)Google Scholar; Morley, Alan, From Milltown to Metropolis (3rd ed., Vancouver: Mitchell Press, 1961)Google Scholar. For background on the university in general, see Horn, Michiel, “Under the Gaze of George Vancouver: The University of British Columbia and the Provincial Government, 1913–1939” (1989) 83 B.C. Studies 29–68.Google Scholar

³¹ When Curtis taught at Harvard Law School for one year, Professor Lon Fuller asked him why international law had been made a compulsory subject at the University of British Columbia, which was one of only three law schools in North America with this policy. Curtis responded by invoking Weldon, noting that lawyers have a responsibility as members of a profession that extends far beyond that of merely attending to the interests of clients. The profession’s potential influence, he continued, is enormous, and part of this influence should be exerted in the interests of the international community. On Weldon, see Stanley, Delia M. M., “Richard Chapman Weldon 1849–1925: Fact, Fiction and Enigma” (1989) 12 Dal. L.J. 539.Google Scholar

³² On MacKenzie, see Waite, P. B., Lord of Point Grey: Larry MacKenzie of U.B.C. (Vancouver: UBC Press, 1987)Google Scholar; Bourne, C. B., “In Memoriam: Norman Archibald MacRae MacKenzie” (1985)23 Canadian Yearbook of International Law 328CrossRefGoogle Scholar. In his vol. 1, Hilliker, infra note 46, refers to MacKenzie as Canada’s leading international lawyer of the time.

³³ The texts prescribed were those by Oppenheim and Brierly, and by MacKenzie and Laing. Later additions included Schuman, F. L., International Politics: An Introduction to the Western State System (New York: McGraw Hill, 1933)Google Scholar, and Nussbaum, A., A Concise History of the Law of Nations (3d rev. ed., New York: MacMillan, 1954).Google Scholar

³⁴ Goldie left the faculty to become solicitor for the B.C. Electric Company. When Premier W. A. C. Bennett nationalized B.C. Electric, Goldie entered private practice. He became senior partner at Russell and DuMoulin and one of the finest litigators in Canada. In 1991, he was appointed to the Court of Appeal for British Columbia.

³⁵ Interview with author.

³⁶ The commission’s first counsel was Kirke Smith, a British Columbia lawyer and later a judge. On Kirke Smith’s departure, Commissioner E. D. McPhee, dean of the Faculty of Commerce, U.B.C., appointed Bourne to succeed him. Bourne spent several weeks in the Okanagan Valley analyzing legal problems involved in marketing in Canada and suggesting suitable arrangements for marketing in the Okanagan. He wrote a long memorandum, much of which was incorporated into the various sections of the commission’s report, issued in Oct. 1958. The marketing scheme instituted by the commission has stood to this day without legal challenge.

³⁷ On the Canadian Institute of International Affairs, see Manny, Carter, “The Canadian Institute of International Affairs 1928 to 1939: An Attempt to ‘Enlighten’ Canada’s Foreign Policy,” B.A. thesis, mimeograph, 107 (Cambridge, Mass.: Harvard, 1971)Google Scholar; Osendarp, J. E., A Decade of Transition: The C.I.I.A. 1928–1939, major research paper, typescript, 136 (York University, Department of History, 1983)Google Scholar; and see especially Reid, Escott, Radical Mandarin: The Memoirs of Escott Reid (Toronto: University of Toronto Press, 1989)Google Scholar; Bercuson, David Jay, True Patriot: The Life of Brooke Claxton 1898–1960 59–72 (Toronto: University of Toronto Press, 1993).Google Scholar

³⁸ Bourne ceased teaching constitutional law in 1975 and administrative law in 1976. Years later, on receiving an honorary degree at the University of British Columbia in 1993, he described the intimate connection between international law, constitutional law, and administrative law: “These subjects are closely related, for they deal with matters at the heart of a legal system, namely, the institutions and processes that people, destined by nature to live in society, find necessary to establish so that they may live together in comfort, peace, and security. In short, these subjects raise fundamental questions about the origin and nature of government itself.”

³⁹ MacKenzie, N. A. M. and Laing, L. H. (eds.), Canada and the Law of Nations: A Selection of Cases in International Law, Affecting Canadians, Decided by Canadian Courts, by Certain of the Higher Courts in the United States and Great Britain and by International Tribunals (Toronto: Ryerson Press, 1938)Google Scholar, reviewed by Bishop, W. W. in 54 Pol. Sci. Q. 630 (1939)Google Scholar. The first international law casebook used in a common law Canadian law school seems to have been Stowell, Ellery C. and Munro, Henry F., International Cases, Arbitrations and Inádents Illustrative of International Law as practised by Independent States, 2 vols. (Boston: Houghton Mifflin, 1916)Google Scholar, used by Henry F. Munro when he joined Dalhousie in 1921 and on which he had worked while an instructor at Columbia.

⁴⁰ Brierley, J. L., The Law of Nations (6th ed., Oxford: Oxford University Press, 1963).Google Scholar

⁴¹ The introduction dealt with “Books on International Law” and “The History, Nature, and Authority of International Law.” The chapter titles were “Sources and Evidence of International Law,” “Relation between International Law and Municipal Law,” “The Persons of International Law,” “The Continuing Personality of States,” “Recognition of States and Governments,” “Jurisdiction of States,” Diplomatic, Consular, and Sovereign Relations,” “State Responsibility of Injuries to Other States and Their Citizens,” “Nationalization and Expropriation,” “Environmental Law,” and “International Agreements.”

⁴² The excerpts from Brierly proved particularly useful for Bourne’s students from the Faculty of Arts, who were often unfamiliar with the principles discussed in class and were accustomed to working from a textbook.

⁴³ Revisions were made in 1967, 1972, 1974, and 1978.

⁴⁴ On the Association of Canadian Law Teachers, see Bowker, Wilbur F., “History of the Association of Canadian Law Teachers,” in Bowker, Marjorie (ed.), A Consolidation of Fifty Years of Legal Writings by Wilbur F. Bowker 1938–1988 133 (Edmonton: Faculty of Law, University of Alberta, 1989).Google Scholar

⁴⁵ Interview with author.

⁴⁶ Curtis saw himself as the last of the Rolls-Royce deans — good for a lifetime. For biographical information on Curtis, see Canadian Who’s Who, 1995, vol. 29, 260 (Toronto: University of Toronto Press, 1944); Willis, John, A History ofDalhousie Law School (Toronto: University of Toronto Press, 1979)Google Scholar; W. Wesley Pue, note 30 supra; and University of Victoria, B.C. Legal History Collection Project Aural History Program, “Transcript of Interview of Dr. George F. Curtis by Dean F. Murray Fraser,” Feb. 1980, 1–162 (mimeograph). Hilliker, John and Barry, Donald, Canada’s Department of External Affairs, vol. 2. Coming of Age, 1946–1968 (Montreal and Kingston: McGill-Queens University Press, 1995)CrossRefGoogle Scholar, refer (at 219) to Curtis’ key role in drafting the Canadian proposals for the first Law of the Sea Conference in 1958. For information on the law school during the decade following Curtis’ retirement, see McClean, A. J., “The Faculty of Law, University of British Columbia 1970–1981,” (1984) 8 Dal. L.J. 185.Google Scholar

⁴⁷ Bourne’s papers on the agreement are on file at the University of British Columbia Archives. Of the world’s fresh water, 20 per cent is in the Great Lakes, making them the largest system of fresh water on earth. One quarter of Canada’s people live in the Great Lakes Basin. For recent developments, see U.S. Environmental Protection Agency and Environment Canada, Practical Steps to Implement an Ecosystem Approach in Great Lakes Management (Detroit: Wayne State University, 1995). Silcoff, Sean, “Budget Cuts Poison Great Lakes Forecast,” Globe & Mail, (July 16, 1996) A1Google Scholar; and the comprehensive paper by Brunnée, Jutta and Toope, Stephen J., “Environmental Security and Freshwater Resources: Ecosystem Regime Building” (1997) 91 A.J.I.L. 26Google Scholar. See especially Farid, Claire, Jackson, John, and Clark, Karen, The Fate of the Great Lakes: Sustaining or Draining the Sweetwater Seas? 96 (Toronto: Canadian Environmental Law Association, 1997).Google Scholar

⁴⁸ The strait was named for Dixon, George: “Whose exploration of the British Columbian coast in the 1780s helped to initiate the maritime fur trade.” See Canadian Encyclopedia, vol. 1, 607 (2nd ed., Edmonton: Hurtig, 1988).Google Scholar

⁴⁹ In 1857, the Russian minister to Washington hinted that his government was willing to sell its North American colony. Negotiations began in 1859 but were interrupted by the outbreak of the American Civil War in 1861. Talks resumed in Feb. 1867 and agreement reached on Mar. 30, 1867. Although U.S. Senate approval came on Apr. 9, 1867, the $7.2 million appropriation did not obtain Congressional ratification until July 1868.

⁵⁰ “Maritime Jurisdiction in the Dixon Entrance: The Alaska Boundary Re-Examined,” (1976) 14 Canadian Yearbook of International Law. 174. Barry L. Mawhinney, legal adviser to the department, praised this article as having been a basic source for many years: interview with author, August 4, 1992.

⁵¹ The most fruitful experience for the Department and the “academic in residence” results when the academic is employed in work which involves his expert knowledge. I do not think all his time should be so spent but a substantial part should be. A valuable part of the year’s experience is the opportunity to get an appreciation of the range of problems dealt with by the Department. It is a good way to bring one abreast of current international law problems. The academic therefore should to some extent be exposed to the everyday work of the officers in the Department. He should not be isolated but be available for frequent consultation by colleagues. I did have the opportunity to write opinions on several aspects of Canadian boundary problems and to discuss a wide range of matters.

At times, I must confess, I thought that I could have been drawn into the discussions leading up to the Stockholm Conference on the Environment and on some of the Law of the Sea matters. My impression was that the persons in charge of the formulation of Canadian policy did not wish to give me the opportunity to express ideas contrary to theirs and thus perhaps produce a result different from that they had fixed their minds on. This is one of the disturbing things about bureaucrats. It does not, however, suggest that academics in residence are not desirable; on the contrary, it suggests that an occasional outside voice is highly desirable.

On the whole, my impression was that the members of Legal division were a competent group. They were, however, not legal specialists. The system does not promote specialists; as soon as an officer is beginning to master a subject, he is usually posted overseas to a non–legal job. The Law of the Sea Conference has forced the Department to keep a group at work on that subject for the best part of a decade and this has given those persons a partial knowledge of this process of reforming that law. But even so, they are not broadly trained international lawyers. In fact, they are not just lawyers. As Len Legault has said, they are “legal diplomatists.”

This, as you know, touches a raw nerve in the Department The Canadian government ought to have the highest quality of international legal advice available to it The present system does not provide it. The Department does not cultivate international law specialists; in fact, its deliberate policy is the reverse.

In view of this policy, a mature academic in residence can be an invaluable asset to the Department.

From C. B. Bourne to R. St. J. Macdonald, July 11, 1977, 1–2.

⁵² D. M. McRae served as president of the Faculty Association in 1974–75.

⁵³ One of the few criticisms that Bourne’s colleagues express is that, as a result of his close connection with the university central administration, he may have been less inclined to assert the position of the law school in inter–faculty competition; reluctance to be self–assertive would not have served him well in a contest for the deanship.

⁵⁴ On general developments in the law school, see Blom, Joost, “The Faculty of Law, University of British Columbia 1981–1990” (1991) 14 Dal. L.J. 195Google Scholar. On the place of the General Course in the law school curriculum, see Gamble, John King, Teaching International Law in the 1900s (Washington, D.C.: American Society of International Law, 1993)Google Scholar; see too the resolution and select bibliography compiled by Macdonald, R. St. J. in the Annuaire de l’Institut de Droit International, session de Strasbourg, vol. 67 (Paris: Éditions A. Pédone, 1997), 213–18.Google Scholar

⁵⁵ “There was a great to–do about whether the university had the right to terminate appointments for financial exigency.” Interview, July 1, 1992 at 5 ff.

⁵⁶ On the creation of the Canadian branch of the ILA, see Newsletter No. 4 of the Canadian Branch, 1962, listing the names of the founding members on June 26, 1952; see too FitzGerald, G. F., “The Canadian Branch of the International Law Association” (1955) 31 Can. Bar Rev. 1021Google Scholar. Gerald F. FitzGerald (1914–87) was a very active and constructive member of the international law com–munity in Canada from the 1950s to the early 1980s. He served for 28 years in the Legal Bureau of the ICAO Secretariat in Montreal, attended virtually all pioneering sessions of the ICAO Legal Committee and all important conferences on air law, and from 1958–87 lectured regularly at McGill’s Institute of Air and Space Law. He co–authored two books and published some 60 articles; he was a founding member of the Canadian Branch of the ILA and an Honorary Life Member of the Canadian Council on International Law. See Bourne, C. B., “In Memoriam: Gerald F. FitzGerald” (1987) 25 Canadian Yearbook of International Law 389.CrossRefGoogle Scholar

⁵⁷ Cohen, Maxwell, “The Canadian Yearbook and International Law in Canada after Twenty-five Years” (1987) 25 Canadian Yearbook of International Law 4Google Scholar. For historical background, see Mackenzie, N. A. M., “Foreword” (1963) 1 Canadian Yearbook of International Law 7CrossRefGoogle Scholar. The Bloomfield papers in the Public Archives of Canada (Call No. MG32E25) probably contain information about the founding of the Yearbook. These papers are under restricted access until July 19, 2004.

⁵⁸ Leon Koerner (1892–1972), born in Czechoslovakia, came to Canada in 1938, established the Alaska Pine Company Ltd. and in 1955 the Leon and Thea Koerner Foundation: see Hives, Christopher, Guide to the Archival Research Collections in the Special Collections and University Archives Division (Vancouver: University of British Columbia Library, 1994).Google Scholar

⁵⁹ C. B. Bourne, “In Memoriam: Norman Archibald MacRae MacKenzie” supra note 32. See also Bourne, C. B., “Preface” (1963) 1 Canadian Yearbook of International Law 11CrossRefGoogle Scholar. It was MacKenzie’s, “acting as financial godfather of the Yearbook that made the whole thing possible. Without him we could not have gone forward at that time and quite frankly I do not know where we would have got the money from anywhere at any other time in the future.” Interview, Mar. 31, 1996.Google Scholar

⁶⁰ Morin later entered politics with the Partì Québécois and joined the cabinet of Premier René Levesque. He was succeeded as associate editor first by Donat Pharand and later by Armand de Mestral. Morin now teaches international law at the University of Montréal.

⁶¹ These were Dalhousie University, Osgoode Hall Law School, Queen’s University, and the universities of British Columbia, McGill, Montréal, New Brunswick, Ottawa, and Toronto.

⁶² Now consisting of 16 members, the board still includes seven of the founding directors. Of these seven, five — Castel, Cohen, La Forest, McWhinney, and Morin — have been given the title of Honorary Editors.

⁶³ Minutes of the meeting of the executive committee of the Canadian Branch of the ILA held in Montreal on Feb. 12, 1962, para. 11. The Hon.John E.Read and Dr. N. A. M, MacKenzie were appointed Honorary Editors.

⁶⁴ Although MacKenzie retired as president of the University of British Columbia in 1962, his appointment to the Canada Council meant that the Yearbook could continue to rely on his help in arranging financing. These early grants, which began in 1963, amounted to $1,500 a year.

⁶⁵ Each year, the Department of External Affairs prepared excerpts from in–house documents that exemplified the types of issues in which the department’s legal bureau had been engaged over the preceding 12-month period. These materials would be compiled in Ottawa, sent to Bourne for editing, and returned to Ottawa for final approval before their publication in the Yearbook.

⁶⁶ Interview with author.

⁶⁷ Part of this economic constraint resulted in changes to the Yearbook, which Bourne laments. Most immediately, its price was increased significandy from an average price of $45 to over $100. Even more disappointing to Bourne was the discontinuation of offprints provided by the printer, of which 25 complimentary copies had previously been supplied to each author. (Only photocopies are provided now.) In addition to allowing authors a chance for self-promotion, the offprints were also a source of promotion for the Yearbook. Third, the University of British Columbia Press increased its annual calculation of overhead costs for books published in a given year, which resulted in an increase in the Yearbook’s overhead of about $5,000.

⁶⁸ “My advisory committee on the succession was composed of professors Macdonald, Cohen, and Castel. They recommended McRae unanimously and this was approved. He was also my choice”: Interview, Mar. 19, 1993, 7; C. B. Bourne to R. St. J. Macdonald, July 2, 1992; “Minutes of the Meeting of the Editorial Board of the Can. YB. I.L.,” Oct. 17, 1992, 3.

⁶⁹ Cohen, supra note 57 at 31.

⁷⁰ “The section on Canadian practice is perhaps the most important part of the Yearbook and it is perhaps the part that brings it to the attention of scholars in other countries. It is the one they use.… occasionally you hear rumours that the Department of Justice wants to publish its own something on international law but this would probably swallow up the practice section. I think it would be a disaster for the Yearbook.” Interview, Mar. 31, 1996. Lee, Ambassador E. G. thinks this section should be expanded (1974) 9 U.B.C.L. Rev. 211–12.Google Scholar

⁷¹ “It is a Canadian yearbook. It has a particular focus, which is international law as seen by Canadians or which will record and reflect on events of international legal significance in Canada.… So the two main things are Canadian authors or material dealing with Canada. But in addition we have published, in every Yearbook, an article by some non–Canadian, non–resident person, on a subject that deals with a general international problem that is not necessarily connected in any way with Canada. But that is not the priority.” Interview, Dec. 12, 1992, 28.

⁷² Cohen, supra note 57 at 31.

⁷³ On the ILA, see supra note 56 and infra note 154.

⁷⁴ On the Columbia, see infra text at notes 103–51.

⁷⁵ See communiqué No. 93/17 of the International Court of Justice (July 5, 1993). Hungary and the Slovak Republic (by agreement of Apr. 7, 1993) will appear before the World Court on issues relating to the Gabcikovo-Nagymaros dam on the Danube. The pleadings raise questions relating to the implementation and termination of the Budapest Treaty (Sept. 16, 1977) and to general principles of international watercourse law, including equitable utilization and no substantial harm. See further Rousseau, C., “Chronique des faits internationaux” (1992) Revue Générale de droit international public 903Google Scholar; Int’l Environmental Law News, July 1993, vol. 4; and Berrisch, G. M., “The Danube Dam Dispute under International Law” (1994) 46 Austrian J. of Public and Int’l Law 231–81.Google Scholar

⁷⁶ The current peace talks between Israel and Palestine (Syria and Jordan) over the Golan Heights include discussion on use of the waters of the Jordan as a key part of their agenda. At present, Israel uses almost all the water of the Jordan, to the great detriment of the Palestinians. See Lowi, M. R., Water and Power: The Politics of a Scarce Resource in the Jordan River Basin (New York: Cambridge University Press, 1993)CrossRefGoogle Scholar; see also Drezon-Tepler, M., “Contested Waters and the Prospects for Arab-Israeli Peace” (1994) 30 Middle-Eastern Studies 218–303CrossRefGoogle Scholar; Wolf, A. and Ross, J., “The Impact of Scarce Water Resources on the Arab-Israeli Conflict” (1992) 32 Natural Res. J. 919–58Google Scholar; and Bellisari, A., “Public Health and the Water Crisis in the Occupied Palestinian Territories” (1994) 23 J. of Palestine Studies 52–63.CrossRefGoogle Scholar

⁷⁷ See discussion on possible conflicts over the Jordan, Nile, and Tigris–Euphrates rivers in Bulloch, J. and Darwish, A., Water Wars: Coming Conflicts in the Middle East (London: Victor Gollancz, 1994)Google Scholar; McCaffrey, S. C., “Water, Politics and International Law,” in Gleick, P. H. (ed.), Water in Crisis 92–104 (New York: Oxford University Press, 1993)Google Scholar; and Hayton, R. and Utton, A. E., “Transboundary Groundwaters: The Bellagio Draft Treaty” (1990) 29 Natural Res. J. 663–772.Google Scholar

⁷⁸ Lemarquand, D. G., “Preconditions to Cooperation in Canada-U.S. Boundary Waters” (1986) 26 Natural Res. J. 221–42.Google Scholar

⁷⁹ Bloomfield, L. M. and FitzGerald, G. F., Boundary Waters Problems of Canada and the United States 1 (Toronto: Carswell, 1958).Google Scholar

⁸⁰ Bourne, C. B., “International Water Law in a World of Sovereign States: Perspectives for the Future” (1962) Conference Proceedings, Committee on the Economics of Water Resources Development of the Western Agricultural Economic Research Council (Report No. 10) 121–25.Google Scholar

⁸¹ Bourne, C. B., “Fresh Water as a Scarce Resource,” in Proceedings of the Annual Conference ofthe Canadian Council of International Law 392–402 (1989) [hereinafter, Bourne, Fresh Water]Google Scholar. See also Bourne, C. B., “Protecting the Environment: Fresh Water Resources,” in McWhinney, E. et al. (eds.), From Coexistence to Cooperation: International Law and Organization in the Post Cold War Era 128–41, at 129 (Dordrecht: Martinus Nijhoff, 1991)Google Scholar [hereinafter Bourne, Protecting the Environment]; McAndrew, Brian, “Is the ‘for sale’ sign back on Canadian water,” Toronto Star (Nov. 12, 1993) A25Google Scholar; Simpson, Jeffrey, “American development needs new sources of water — Canadian water,” Globe & Mail (Aug. 3, 1994) A20Google Scholar; Kyba, Patrick, Alvin: A Biography of the Honourable Alvin Hamilton, P.C. 131 ff. (Regina: Canadian Plains Research Center, 1989)Google Scholar; and Stevens, Geoffrey, “Fulton urges immediate action on drafting national water plan,” Globe & Mail (Jan. 28, 1966)Google Scholar, describing five objectives for a Canadian national water resources policy. See also House of Commons Debates, 1st Sess., 27th Parliament, vol. 1, January 18 – February 11, 1966, at 339.

⁸² See, e.g., the World Court’s comments on the ILC’s work in Nicaragua v. United States (Merits) (1986), 25 I.L.M. 1023.

⁸³ Draft Articles on the Law of the Non–Navigational Uses of International Watercourses, UN GAOR, 43rd Sess., 1; UN Doc. A/CN.4/L.463/Add.4 (1991) [hereinafter Draft Articles].

⁸⁴ See Part 2, “General Principles” of Draft Articles, ibid.

⁸⁵ In addition to works cited elsewhere in this article, see Bourne, C. B., “The Development of International Water Resources: The Drainage Basin Approach” (1959) 47 Can. Bar Rev. 393–443Google Scholar; Bourne, C. B., “The Suspension of Disputed Works or Utilisations of the Waters of International Drainage Basins,” in Festschrift für Friedrich Berber 109–25 (Munich: Beck, 1973)Google Scholar. See also Wouters, P. K., Charles Bourne, The Law of International Watercourses Selected Writings (with an introduction by Lucius Caflisch) (The Hague: Kluwer Law International, 1997).Google Scholar

⁸⁶ Bourne, C. B., “Procedure in the Development of International Drainage Basins: Notice and Exchange of Information” (1972) 22 U.T.L.J. 172CrossRefGoogle Scholar; Bourne, C. B., “Procedure in the Development of International Drainage Basins: The Duty to Consult and to Negotiate” (1972) 10 Canadian Yearbook of International Law 212CrossRefGoogle Scholar; Bourne, C. B., “International Law on Shared Fresh Water Resources” in Queen’s, L.J., Proceedings of the Conference on International Law: Critical Choices for Canada, 1985–2000 342–69 (1986)Google Scholar. For the ILC’s procedural rules, see Draft Arts. 9, 11, and 12–18 (supra note 83).

⁸⁷ The ILC’s substantive rules are found in Part 2, “General Principles.”

⁸⁸ The ILC considers the duty to co-operate to be a substantive duty; see Art. 8, “General obligation to cooperate,” Draft Articles.

⁸⁹ Bourne, C. B., “The International Law Commission’s Draft Articles on the Law of International Watercourses: Principles and Planned Measures” (1922) 3 Colorado J. Int’l Env. L. & Pol. 65 [hereinafter Bourne, Principles].Google Scholar

⁹⁰ See Art. 7, Draft Articles, supra note 83 and Boume, Principles, supra note 89 at 73–92. Bourne’s position is set out clearly in his Report for Committee Discussion, presented at the Berlin meeting of the WRC of the ILA (June 1–3, 1993) [hereinafter Bourne, Report to the WRC]. With detailed reasons, he recommended that the ILC’s Art. 7 be subordinated to the principle of equitable utilization.

⁹¹ Art. 7, Draft Articles, supra note 83.

⁹² This Latin maxim, first developed in Roman law, means: “So use your property as to not harm another.” Bourne criticizes the ILC’s use of sic utere as the basis for its no appreciable harm rule: “This is not to say, however, that the maxim should be held to embody a rule that prohibits harm, whether it be appreciable, significant, substantial, or otherwise. Does any but a primitive system of law have such a rule of general application?” See Bourne, Principles, supra note 89.

⁹³ Art. 5, Draft Articles. On the evolution of the principles of the harmless use of territory and equitable utilization, see Bourne, Fresh Water, supra note 81 at 395. See too Caflisch, Lucius, “The Law of International Waterways and Its Sources,” in Macdonald, R. St. J. (ed.), Essays in Honour of Wang Tieya 115–31 (The Hague: Martinus Nijhoff, 1994).Google Scholar

⁹⁴ The ILC has not yet resolved whether the threshold of responsibility created under the Draft Articles is one of classic state responsibility (i.e., in accordance with Art. 3 of the ILC’s Draft Articles on State Responsibility) or international liability (under the ILC’s current work on International Liability for Injurious Consequences of Lawful Acts). See ILC Draft Articles on State Responsibility, 2 Yearbook of the I.L.C. Part 2, UN Doc. A/35/10 (1980); Handl, G., “The International Law Commission’s Draft Articles on the Law of International Watercourses (General Principles and Planned Measures): Progressive or Retrogressive Development of International Law?” (1992) 3 Colorado J. Int’l Env. L. & Pol. 123 at 125–27Google Scholar; and Magraw, D. B., “Transboundary Harm: The International Law Commission’s Study of ‘International Liability’” (1986) 80 AJIL 305–30.CrossRefGoogle Scholar

⁹⁵ Bourne, C. B., “Canada and the Law of International Drainage Basins” in Macdonald, R. St. J., Morris, G. L., and Johnston, D.M. (eds.), Canadian Perspectives on International Law and Organization 468 (Toronto: University of Toronto Press, 1974) [hereinafter Bourne, Law of Drainage Basins].CrossRefGoogle Scholar

⁹⁶ Treaty between Great Britain and the United States of America relating to Boundary Waters and Questions arising along the Boundary between Canada and the United States and the Establishment of an International Joint Commission, Jan. 11, 1909, 542 UNTS 244. See the guidelines listed in Art. 8. For an overview see Cohen, Maxwell, “The Regime of Boundary Waters: The Canadian-United States Experience” in Recueil des Cours: Collected Courses of the Hague Academy of International Law, 1975, vol. 3, 1977, at 219–340Google Scholar; Bloomfield and FitzGerald, supra note 79 at 15–17, and Wouters, P. K., “Allocation of the Non-Navigational Uses of International Watercourses: Efforts at Codification and the Experience of Canada and the United States,” (1992) 30 Canadian Yearbook of International Law 43 at 53–55.CrossRefGoogle Scholar

⁹⁷ On the Columbia River dispute, see Bourne, C. B., “Development of the Columbia River: Its International Legal Aspects,” Canadian Bar Association, Papers Presented at the Annual Meeting, Banff (1957) 90–98 [hereinafter Bourne, Development of the Columbia]Google Scholar; also Johnson, R. W., “The Columbia Basin,” in Garretson, A. H. (ed.), The Law of International Drainage Basins 167–255 (New York: Oceana, 1967)Google Scholar; Cohen, Maxwell, “The Columbia River Treaty: A Comment” (1961–62) 8 McGill L.J. 212Google Scholar; Cohen, Maxwell, “Some Legal and Policy Aspects of the Columbia River Dispute” (1958) 36 Can. Bar Rev. 25–42Google Scholar. For a detailed history, see Swainson, Neil A., Conflict over the Columbia: The Canadian Background to an Historic Treaty (Montreal: McGill-Queens University Press for the Institute of Public Administration of Canada, 1979) [hereinafter Swainson, Conflict]Google Scholar; Wandschneider, P., Management of a United States-Canada Common Resource: The Columbia River (1983)Google Scholar. See also Hilliker, and Barry, , Canadian’s Department of External Affairs, vol. 2, supra note 46 at 230–32, 267–71.Google Scholar

⁹⁸ See detailed descriptions of many aspects of the basin in Johnson, supra note 97 at 171–78, and Bourne, , “Development of the Columbia,” supra note 97 at 90–91.Google Scholar

⁹⁹ Bourne, C. B., “The Columbia River” in Bernhardt, R. (ed.), Encyclopedia of Public International Law, Vol. 1, 667–68 (Amsterdam: North Holland, 1992).Google Scholar

¹⁰⁰ ibid.

¹⁰¹ Johnson, supra note 97 at 197, referring to the IJC, Report on Principles for Determining and Apportioning Benefits from Cooperative Use of Storage of Waters and Electrical Interconnection within the Columbia River System, at 26 [hereinafter IJC, Columbia River Apportionment Report]. The Kootenay, one of two international tributaries of the Columbia (the other is the Clark Ford-Pend-d’Oreille), crosses the international border twice so that 130 miles of its total 380–mile length is in the U.S. This accounts for the U.S. applications for development. For a description of the other tributaries of the Columbia River, see Johnson, ibid, 171–73.

¹⁰² The IJC, established under Art. 7 of the BWT, is composed of six commissioners — three each from Canada and the U.S. For details, see Bloomfield and FitzGerald, supra note 79 at 4–64; Chacko, C. J., The International Joint Commission (New York: AMS Press, 1932)Google Scholar; Cohen, Maxwell, “The International Joint Commission and Canada-United States Boundary Relations,” in Macdonald, R. St. J. et al., supra note 95 at 522–43Google Scholar; LeMarquand, D., “The International Joint Commission and Changing Canada-United States Boundary Relations (1993) 33 Natural Res. J. 59–95Google Scholar; Spencer, R., Kirton, J., and Nossal, K. R. (eds.), The International Joint Commission Seventy Years On (Toronto: Centre for International Studies, University of Toronto, 1981).Google Scholar

¹⁰³ For details of the reference, see Bloomfield and FitzGerald, supra note 79 at 164–65.

¹⁰⁴ See description in Graham, G., “International Rivers and Lakes: The Canadian-American Regime,” in Zacklin, R. and Caflisch, L. (eds.), The Legal Regime of International Rivers and Lakes 3–21 (1981).Google Scholar

¹⁰⁵ Bourne, C. B., Development of the Columbia, supra note 97 at 94–95Google Scholar. See also Bourne, C. B., “The Columbia River Controversy” (1959) 37 Can. Bar Rev. 444–72,Google Scholar and Bourne, C. B., “Diversion: An International Problem” (1958) 49 Pacific Northwest Quarterly 106–9.Google Scholar

¹⁰⁶ Art. 2 of the BWT provides that each state has “exclusive jurisdiction and control over the use and diversion … of all waters on its own side of the line” subject to a remedial provision on equal access for individuals. The remedies available would be limited to those available to Canadians: see Bloomfield and FitzGerald, supra note 79 at 169.

¹⁰⁷ See McNaughton, A. G. L., “The Proposed Columbia River Treaty” (1963) 18 Int’l J. 148–65Google Scholar. For criticism of the McNaughton plan, see H. L. Keenleyside’s address of May 12, 1982, to the Annual Dinner and Re–Union of the C.E.F., Imperial and Other Veterans who served the Empire prior to Nov. 11, 1918, esp. at 3–6. General McNaughton, chairman of the Canadian section of the IJC, was a strong proponent of a nationalist plan for Canada. His protest heightened after his “retirement” or, in his words, “forced dismissal by a dictator,” from the IJC, with his public claim that the treaty plan was a win for the Americans. See discussion in Swainson, Conflict, supra note 97 at 66. See further Swettenham, John, McNaughton, vol. 1, 1887–1939, vol. 2, 1939–1943, vol. 3, 1944–1966 (Toronto, Winnipeg, and Vancouver: Ryerson Press, 1969)Google Scholar; Granatstein, J. L., The Generals (Toronto: Stoddart Publishers, 1993)Google Scholar; and Ignatieff, George, “General A. G. L. McNaughton: A Soldier in Diplomacy” (1967) 22 Int’l J. 402 (Centennial Issue).Google Scholar

¹⁰⁸ Johnson, supra note 97 at 198–99.

¹⁰⁹ This was a position contrary to the one used by the U.S. in a dispute with Mexico over the Rio Grande.

¹¹⁰ The Harmon Doctrine is based on the theory of absolute state sovereignty and holds that each state has a right to freely utilize those waters located on, or passing through, its territory. Art. 2 of the Boundary Waters Treaty restricts the “absoluteness” of this doctrine by granting access to remedies across the border to private citizens injured as a result of uses undertaken by the foreign state. On the Harmon Doctrine, see Bloomfield and FitzGerald, supra note 79 at 43–46, and S.C. McCaffrey, Second Report on the Law of Non–Navigational Uses of International Watercourses, Doc. A/CN.4/399 and Add. 1, in 2 Yearbook of the I.L.C. Part 1, 87–144 at 106 (1986), especially his note 97 [hereinafter McCaffrey, Second Report].

¹¹¹ See Griffin, W. L., “Legal Aspects of the Use of the Systems of International Waters: With Special Reference to the Columbia-Kootenay River System under the Treaty of 1909 and under Customary International Law,” Sen. Doc. 118, 85 Cong. 2nd Sess., 146Google Scholar. See also Austin, J., “Canadian-United States Practice and Theory Respecting the International Law of International Rivers: A Study of the History and Influence of the Harmon Doctrine” (1959) 37 Can. Bar Rev. 393–443Google Scholar; Armstrong, T. E. et al., “The Columbia River Dispute” (1958) 1 Osgoode Hall L.J. 1–15.CrossRefGoogle Scholar

¹¹² See Bloomfield and FitzGerald, supra note 79 at 168–69 and Johnson, supra note 97 at 203–9.

¹¹³ Bourne, C. B., “International Law and the Diversion of the Columbia River in Canada,” University of British Columbia Lecture Series (No. 27), 17–25 (1956).Google Scholar

¹¹⁴ C. B. Bourne, “Development of the Columbia,” supra note 97 at 97 states: “One concludes, therefore, that under Article 2, Canada has an unfettered right to divert the Kootenay and Columbia Rivers, and that, because of the provisions of the British Columbia Water Act, she would incur no obligation to ‘injured parties’ downstream.” Swainson, Conflict, supra note 97 at 67, calls this a “startling interpretation.”

¹¹⁵ Bourne sets out some of the factors to be considered in the Columbia River scenario in Development of the Columbia, supra note 97 at 97.

¹¹⁶ Ibid.

¹¹⁷ Interview, Oct. 22, 1993 at 10:

¹¹⁸ The paper was presented at the Pacific Northwest Regional Meeting of the American Society of International Law (in celebration of the 50th anniversary of the founding of the Society), held at the University of Washington Law School at Seattle. Interview, Ottawa, Oct. 22, 1993 at g. See also Bourne, C. B., Foreword to “International Law: Rivers and Marginal Seas,” University of British Columbia Lecture Series (No. 27) (1956)Google Scholar. Inglis, P., in “Columbia River Crisis,” ibid., 26–34, at 31Google Scholar, refers to Bourne’s presentation: “The Canadian legal position, set out by Professor C. B. Bourne of the University of British Columbia with such remarkable skill that he was loudly applauded by Americans to whom what he was saying was thoroughly distasteful.” For the proceedings see (1958) 49 Pacific Northwest Quarterly 99–120.

¹¹⁹ “From then, the Americans came to realize that they did not have a legal right to insist that Canada allow the full flow of the Columbia River to come down stream and that the United States would have all the benefits from the storage of the water in Canada. The American attitude in the IJC, which was the main arena for the controversy, soon changed and this ultimately led to the Columbia River Treaty”: Interview, Oct. 22, 1993 at 11–12.

¹²⁰ Treaty Relating to the Cooperative Development of the Water Resources of the Columbia River Basin, Jan. 17, 1961, (1965) 542 UNTS 244–91 [hereinafter Columbia River Treaty].

¹²¹ Negotiations for the treaty had, in fact, through changes of governments, involved both the Liberal and Conservative parties. Premier Bennett used federal party politics to bring pressure to bear as regards the sale of downstream power benefits. His method worked. In fact, Bennett also influenced Canada’s diversion rights agreed to under the treaty: information leaked after the agreement had been signed revealed that the U.S. had been prepared to agree to the Kootenay-Columbia-Fraser diversion (the McNaughton plan), but Bennett, at the last critical stages of the negotiations, rejected the all-Canadian plan and insisted upon adoption of the American plan (including the Libby Dam project). One can only speculate that he had the sale of power benefits on his mind at this early stage.

¹²² See, e.g. “Fulton Blames B.C. for Flaws in Treaty,” Globe & Mail (Apr. 18, 1962) C 2.

¹²³ Exchange of Notes Regarding Sale of Canada’s Entitlement to Downstream Benefits under the Treaty of January 17, 1961 (with attached Protocol), Jan. 22, 1964, (1965) 542 UNTS 302–11 [hereinafter Protocol 1]. Exchange of Notes, Constituting an Agreement Authorizing the Canadian Entitlement Purchase Agreement Provided for under the Treaty of January 17, 1961, Sept. 16, 1964, (1965) 542 UNTS 312–43 [hereinafter Protocol 2].

¹²⁴ Art. 2(2), Columbia River Treaty. The three Canadian storage facilities — Duncan, High Arrow, and Mica — were completed on or before schedule. See Swainson, N. A., “The Columbia River Treaty: Where Do We Go from Here?” (1986) 26 Natural Res. J. 242.Google Scholar

¹²⁵ Ibid., An. 2(1).

¹²⁶ Ibid., Art. 4.

¹²⁷ Ibid., Art. 6.

¹²⁸ Swainson, supra note 124 at 244.

¹²⁹ Art. 12(2), Columbia River Treaty.

¹³⁰ Ibid., Art. 13.

¹³¹ Ibid., Art. 13(1).

¹³² The IJC, requested to provide “recommendations concerning the principles to be applied in determining: (a) the benefits which will result from the co–operative use of storage of waters and electrical interconnection within the Columbia River System and (b) the apportionment between the two countries of such benefits more particularly in regard to electrical generation and flood control,” recommended that the benefits be shared equally. In making its three general and thirteen specific recommendations, the latter comprising seven “power principles” and six “flow control” principles, the IJC was “guided by the basic concept that the principles recommended … should result in an equitable sharing of the benefits attributable to their co–operative undertakings and that these should result in advantage to each country as compared with alternatives available to that country.” See IJC, Columbia River Apportionment Report, 2–30. See also Epstein, M., “The Columbia River Treaty: A Chronological Study” (1966) 5 Columbia J. Transn’l L. 167–72Google Scholar, and Higgins, Larratt T., “The Columbia River Treaty: A Reply to Professor Bourne” (1962) 17 Internat. J. 141CrossRefGoogle Scholar, in which he charges that the treaty gives cavalier treatment to the IJC’s recommendations on the division of power benefits.

¹³³ The actual sale price was $253,929.25, calculated as on Sept. 16, 1964. See Lesser, J. A., “Resale of the Columbia River Treaty Downstream Power Benefits: One Road from Here to There” (1990) 30 Natural Res. J. 608–28Google Scholar, esp. note 23 at 614.

¹³⁴ The Columbia River Treaty was signed by Prime Minister Diefenbaker and President Eisenhower in 1961. The protocol was finalized in 1964 under the new governments of President Kennedy and Prime Minister Pearson.

¹³⁵ Castel, J.G., International Law 819–75 (4th ed., Toronto: Butterworths, 1987).Google Scholar

¹³⁶ There was much less criticism south of the 49th parallel than there was in Canada. See concerns expressed by Dr. M. E. Marts and Dr. J. V. Krutilla, summarized in Johnson, supra note 97 at 221–22.

¹³⁷ Did the treaty amount to a net loss to each side? See Krutilla, J. V., The Columbia River Treaty: The Economics of an International River Basin Development 195 (Baltimore: Johns Hopkins University Press, 1967).Google Scholar

¹³⁸ See the debate on this point in Bourne, C. B., “The Columbia River Treaty: Another View” (1962) 17 Int’l J. 137–40Google Scholar; and Higgins, supra note 132.

¹³⁹ General McNaughton claimed the treaty would make Canada “forever merely a storer of water for the United States for power and flood control.” See also Globe & Mail (Dec. 8, 1962) 1, col. 1; also Swainson, Conflict, supra note 97 at 227–28.

¹⁴⁰ Bourne, supra note 138 at 137.

¹⁴¹ Swainson, supra note 124 at 255. But (at 256), Canada would be free to move on her diversion rights; by the year 2024, Canada could effect up to a 75 per cent diversion of the Kootenay.

¹⁴² Swainson, Conflict, supra note 97 at 367–68. But perhaps it was the best agreement possible at the time (368–69).

¹⁴³ See Lesser, supra note 133, esp. note 44 at 619.

¹⁴⁴ Lesser, ibid, 618. In fact, since the late 1970s the downstream power benefits have exceeded the estimated amount (and the amount paid for!) by up to 30 per cent: Swainson, supra note 124 at 255.

¹⁴⁵ It appears that Canada’s need could require repatriation of all of the benefits: Swainson, ibid, 256.

¹⁴⁶ Lesser, supra note 133 at 624. But, as he says, many other factors might affect the value.

¹⁴⁷ For possible outcomes, see Swainson, supra note 124 at 256–59.

¹⁴⁸ Ibid., 252–53; Lesser, supra note 133 at 610.

¹⁴⁹ Art. 4, in addition to prescribing the limits of uses involving “flowing boundary waters,” prohibits pollution on either side of the border “to the injury of health or property on the other.”

¹⁵⁰ See Great Lakes Water Quality Agreement, U.S.–Canada, Nov. 22, 1978, C.T.S. 1978/20, 30 UST 1384, TIAS no. 9257; and IJC, “Living with the Lakes: Challenges and Opportunities: A Progress Report to the International Joint Commission” (1989).

¹⁵¹ Art. 16, Draft Articles.

¹⁵² See especially Bourne’s Report on Pollution, in ILA, Report of the 6oth Conference, Montreal, 1982, 533–52 [hereinafter Montreal Rules on Pollution].

¹⁵³ Also established in 1873, but from European sources, was the Institute of International Law (l’Institut de droit international). The institute, with a more limited and exclusive membership, has also undertaken codification of the rules of international law. Of particular interest is the Salzburg Resolution on the Utilization of Non–maritime International Waters ( except for Navigation ), adopted in 1961 under the rapporteurship of Professor J. Andrassy. The Salzburg Resolution comprises only nine Articles. Its governing principle is the co–relative rights and obligations of basin states; disputes are to be resolved “on the basis of equity.” See (1961) 49–II Annuaire de l’Institut de droit international 384; deliberations, ibid., 84–192; also the travaux préparatoires in (1959) 48–1 Annuaire de l’Institut de droit international, Session de Neuchâtel, 131–358.

¹⁵⁴ The ILA, originally called the Association for the Reform and Codification of the Law of Nations, admits as members “all who, from whatever point of view, are interested in the improvement of international relations.” Its early efforts were based on codification of a “Code of International Law” in an effort to facilitate world peace. See ILA, Report of the Forty-Eighth Conference lxiv (New York, 1958).

¹⁵⁵ For a summary of the ILA’s work on international water resources, see Manner, E. J. and Metsälampi, V-M. (eds.), The Work of the International Law Association on the Law of International Water Resources (Helsinki: Finnish Branch of the ILA, 1988) [hereinafter the Red Book]Google Scholar; also Manner, E. J., “Some Legal Problems Relating to the Sharing of Boundary Waters,” in Festschrift Für Friedrich Berber 321–38 (1973)Google Scholar, and Manner, E.J., “Diversion of Waters and the Principle of Equitable Utilization: A Short Outline of a Complex Problem,” in Liber Amicorum for the Rt. Hon. Lord Wilberforce 53–59 (1987).Google Scholar

¹⁵⁶ ILA, Report of the Forty–Sixth Conference, Edinburgh, 1954, at 331.

¹⁵⁷ Johnson, supra note 97 at 167–255.

¹⁵⁸ Külz, Helmut R., “Further Water Disputes between India and Pakistan” (1969) 18 I.C.L.Q. 718Google Scholar; Baxter, R. R., “The Indus Basin,” in Garretson, A. H. (ed.), The Law of International Drainage Basins 443–85 (New York: Oceana Publications, 1967).Google Scholar

¹⁵⁹ Garretson, A. H., “The Nile Basin,” in Garretson, A. H. (ed.), The Law of International Drainage Basins, supra note 158 at 256–97.Google Scholar

¹⁶⁰ ILA; Report of the Forty–Sixth Conference, Edinburgh, 1954, Resolution 5, at vii. Eagleton’s Preliminary Study is found at 324–38; discussion at 309–23.

¹⁶¹ ILA, Report of the Fifty–Second Conference, Helsinki, 1966; the Helsinki Rules (with commentaries) are found at 484–532.

¹⁶² The ILA has had three committees concerned with international water resource law: the original Rivers Committee (1964–66), chaired initially by Professor Eagleton; the International Water Resources Law Committee (1966–90), chaired by Judge E. Manner; and the current International Law Committee on International Water Resources (the Water Resources Committee/WRC) (1990–present), chaired by Professor Bourne. The WRC’s current agenda includes remedies, cross–media pollution, diversion of water, estuarine problems, and dispute setdement.

¹⁶³ ILA, Report of the Forty–Eighth Conference, New York, 1953, 28–102, 56–67.

¹⁶⁴ IIA, Report of the Fifty–First Conference, Tokyo, 1964, 164.

¹⁶⁵ From the time of the 1958 New York Meeting to the 1964 Tokyo meeting, these included the following: on the Indus River, F.J. Berber (German lawyer for India), J. G. Laylin (American lawyer for Pakistan; also interested in the Columbia), K. K. Rao, S. M. Sikri (from India), and M. Qadir (from Pakistan); on the Columbia River, L. M. Bloomfield, M. Cohen, G. F. FitzGerald, J. L. MacCallum, and J. Y. Morin (from Canada), and J. G. Buchanan, A. H. Garretson, W. L. Griffin, R. D. Hayton, M. S. McDougal, C.J. Olmstead, and R. R. Baxter (from the U.S.); on the Nile River, A. M. Atabani and S. Hosni (from Sudan ). See list of members of the committee in the Red Book, supra note 155 at 317–18.

¹⁶⁶ Bourne regrets having “missed the most intense confrontations.” Interview, Oct. 22, 1993, 13.

¹⁶⁷ See Laylin, J. G., “Principles of Law Governing the Use of International Rivers,” in Inter-American Bar Assodation Proceedings of the Tenth Conference, Buenos Aires (1958) at 146–73Google Scholar; Laylin, J. G., “Principles of Law Governing the Uses of International Rivers: Contributions from the Indus Basin,” Proceedings of the American Society of International Law 20–36 (1957)Google Scholar; Laylin, J. G., “Indus River System: Comments” Proceedings of the American Society of International Law 144–50 (1690) [hereinafter Laylin, Comments].Google Scholar

¹⁶⁸ Laylin, Comments, supra note 167 at 148. See also Berber, F. J., “The Indus Water Dispute,” (1957) 6 Indian Yearbook of International Affairs 46–62.Google Scholar

¹⁶⁹ Interview, Oct. 22, 1993, 13.

¹⁷⁰ Ibid., 14. On Baxter, see Jennings, R. Y., “His Excellency Judge Richard Reeve Baxter” (1980) 21 Harv. Int’l L.J. 619–21Google Scholar; Buergenthal, Thomas et al., “Dedication: Judge Richard R. Baxter International Law Collection” (1982) 31 Am. U. L. Rev. 785–803.Google Scholar

¹⁷¹ Interview, July 2, 1992, 9.

¹⁷² Art. 1, Helsinki Rules, supra note 161 at 484.

¹⁷³ Ibid, 486.

¹⁷⁴ Ibid, 486–87.

¹⁷⁵ Ibid, 487.

¹⁷⁶ Ibid.

¹⁷⁷ The non-exhaustive list includes, “but is not limited to”: (a) the geography of the basin, including in particular the extent of the drainage area in the territory of each state; (b) the hydrology of the basin, including in particular the contribution of water by each basin state; (c) the climate affecting the basin; (d) the past utilization of the waters of the basin, including in particular existing utilization; (e) the economic and social needs of each basin state; (f) the population dependent on the waters of the basin in each basin state; (g) the comparative costs of alternative means of satisfying the economic and social needs of each basin state; (h) the availability of other resources; (i) the avoidance of unnecessary waste in the utilization of waters of the basin; (j) the practicability of compensation to one or more of the co–basin states as a means of adjusting conflicts among uses; and (k) the degree to which the needs of a basin state may be satisfied, without causing substantial injury to a co-basin state: Ibid., 488.

¹⁷⁸ Helsinki Rules, supra note 161, Art 5(3).

¹⁷⁹ Ibid., Commentary at 491.

¹⁸⁰ See also Helsinki Rules, supra note 161, Art. 8.

¹⁸¹ Ibid., Commentary at 490.

¹⁸² Ibid., Art. 10 and Commentary at 496–97.

¹⁸³ Ibid., Commentary at 499.

¹⁸⁴ See Bourne, C. B., “Legal Aspects of Transfrontier Pollution: Canada-United States Experience” (1981) 28 Netherlands Int’l L. Rev. 188.CrossRefGoogle Scholar On pollution, see also Lester, A., “Pollution,” in Garretson, A. H. (ed.), The Law of International Drainage Basins, supra note 158 at 89–123Google Scholar; Lammers, J. G., Pollution of International Watercourses (Boston: Kluwer, 1984)Google Scholar; Polakiewicz, J. G., “La responsabilité de l’État en matière de pollution des eaux fluviales ou souterraines internationales” (1991) J. du droit international, 283–347Google Scholar

¹⁸⁵ Montreal Rules on Pollution, supra note 152.

¹⁸⁶ Art. 1 continues: “In particular, States shall: (a) prevent new or increased water pollution that would cause substantial injury in the territory of another state; (b) take all reasonable measures to abate existing pollution to such an extent that no substantial injury is caused in the territory of another state; and (c) attempt to further reduce any such water pollution to the lowest level that is practicable and reasonable under the circumstances.”

¹⁸⁷ Helsinki Rules, Commentary at 536.

¹⁸⁸ Ibid.

¹⁸⁹ Ibid., 538. For a different approach, see the Athens Resolution on the Pollution of Rivers and Lakes and International Law, adopted by the Institute of International Law in 58–II, Annuaire de l’Institut de droit international, 194–203 (1979).

¹⁹⁰ Bourne, supra note 184 at 121.

¹⁹¹ ILA, Report of the Sixty-Second Conference, Seoul 1986, 275–833 [hereinafter Seoul Rules]. In its commentary to Art. 1, the IIA explains its choice of “substantial” over “appreciable.” For more discussion on this point, see Sachariew, K., “The Definition of Thresholds of Tolerance for Transboundary Environmental Injury under International Law: Development and Present Status” (1990) 37 Netherlands Int’l L. Rev. 193.CrossRefGoogle Scholar

¹⁹² Ibid., 278.

¹⁹³ The commentary provides, at 282, “It seems evident that the duty to refrain from activities that would cause substantial injury to other basin States, as well as the exceptions from the duty, must be accommodated to the principle of equitable utilization.”

¹⁹⁴ Art. 10, Helsinki Rules, supra note 161 at 496–97; Art. 1, Montreal Rules on Pollution, supra note 152 at 535.

¹⁹⁵ Bourne, supra note 184 at 120.

¹⁹⁶ See Red Book, supra note 155.

¹⁹⁷ Official Records of the General Assembly XX. At the same time, the General Assembly approved the recommendation of the Sixth Committee that inter–governmental and non–governmental studies on the subject be taken into account by the ILC in its work.

¹⁹⁸ Mr. Rosenstock was appointed in 1992 and presented his first report at the ILC’s 4th session in 1993.

¹⁹⁹ Rosenstock, Second Report on the Law of the Non-Navigation Uses of International Watercourses, UN Doc. A/CN.4/462 (1994) at 2 [hereinafter Rosen-stock, Second Report].

²⁰⁰ McCaffrey, S. C., “The Law of International Watercourses: Some Recent Developments and Unanswered Questions” (1989) 17 Denver J. Int’l L. & Pol. 505 at 508 [hereinafter McCaffrey, Unanswered Questions].Google Scholar

²⁰¹ Draft Articles, commentary to Art. 7.

²⁰² Paraphrased from Bourne: Interview, Mar. 19, 1993, 22: “Thou shalt not cause appreciable harm to your neighbour.”

²⁰³ Schwebel, S. M., “Third Report on the Law of the Non-Navigational Uses of International Watercourses,” UN Doc. A/CN.4/348, (1982) 2 Yearbook of the I.L.C. Part 1, at 65–197Google Scholar [hereinafter Schwebel, Third Report]; see his Art. 6(2) at 85 and Art. 8(1) at 103.

²⁰⁴ McCaffrey, Second Report, supra note 110 at 133 (para. 180), in which he proposes that Art 9, written by his predecessor, Evensen, “be redrafted in such a way as to bring it into conformity with … the principle of equitable utilization.… [T]he focus should be on the duty not to cause legal injury (by making a non–equitable use) rather than on the duty not to cause factual harm. … [I]n the context of watercourses, suffering even significant harm may not infringe the rights of the harmed State if the harm is within the limits allowed by an equitable utilization.” His position on pollution harm, however, is that the no appreciable harm principle should govern. See also McCaffrey, S. C., Fourth Report on the Law of Non-Navigational Uses of International Watercourses, UN Doc. A/CN.4/412 and Add. 1 and 2, (1988) 2 Yearbook of the I.L.C. Part 1, 205–50Google Scholar [hereinafter McCaffrey, Fourth Report].

²⁰⁵ Rosenstock, R., “First Report on the Law of the Non-Navigational Uses of International Watercourses,” UN Doc. A/CN.4/451, in (1993) 2 Yearbook of the I.L.C.Google Scholar Part 1 [hereinafter Rosenstock, First Report]; see also Rosenstock, Second Report, supra note 199, draft Art. 7.

²⁰⁶ For a detail analysis of the evolution of the no appreciable harm rule under the first four rapporteurs, see Bourne, Principles, supra note 89 at 73–79.

²⁰⁷ Evensen, J., “Second Report on the Law of the Non-Navigational Uses of International Watercourses,” UN Doc. A/CN.4/381, (1984) Yearbook of the I.L.C. Part 1, 101–27Google Scholar; his Art. g provided: “A watercourse State shall refrain from and prevent (within its jurisdiction) uses or activities with regard to an international watercourse that may cause appreciable harm to the rights or interests of other watercourse States, unless otherwise provided for in a water-course agreement or other agreement or arrangement.” See comments in Bourne, Principles, supra note 89 at 74–75.

²⁰⁸ The corollary to this principle is found in Art. 5(2), which reads: “Watercourse States shall participate in the use and development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to co-operate in the protection and development thereof, as provided in the present Articles.”

²⁰⁹ (1) Utilization of an international watercourse in an equitable and reasonable manner within the meaning of Art. 5 requires taking into account all relevant factors and circumstances, including: (a) geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; (b) the social and economic needs of the watercourse states concerned; (c) the effects of the use or uses of the watercourse in one watercourse state on other watercourse states; (d) existing and potential uses of the watercourse; (e) conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect; (f) the availability of alternatives, of corresponding value, to a particular planned or existing use.

(2) In the application of Art. 5 or paragraph 1 of this Article, watercourse states concerned shall, when the need arises, enter into consultations in a spirit of cooperation.

²¹⁰ Commentary to Art. 7.

²¹¹ At 237 of his Fourth Report, supra note 204, McCaffrey suggested that the rule was: “Watercourse States shall not cause or permit the pollution of an international watercourse [system] in such a manner or to such an extent as to cause appreciable harm to other watercourse States or to the ecology of the international watercourse.” Based on his assertion that “there are strong arguments for treating the effects of pollution differently from other kinds of harm,” McCaffrey recommended (at 241 ) that the Commission should “demonstrate its recognition of the importance of pollution prevention and environmental protection by adopting a rule of ‘no appreciable pollution harm’ that is not qualified by the principle of equitable and reasonable utilization.” He considered that formal reconciliation of his pollution rule with the principle of equitable utilization would not be necessary, since “the rule of ‘no appreciable harm’ is mitigated to some extent by the manner in which States have applied the principle of ‘due diligence.’ In so far as this phenomenon introduces considerations of ‘equity’ into the application of the rule of ‘no appreciable harm,’ the outcome could be the same as if that rule were made subject to the doctrine of equitable utilization” (para. 14, at 241 ). Bourne strongly disagrees with this attempt to reconcile the two rules; see Bourne, Principles, supra note 89 at 82. The ILC adopted the primacy of the no appreciable harm rule at its 1988 session during discussion of McCaffrey’s Fourth Report. See also Report of the Commission to the General Assembly, Doc. A/43/10, (1988) 2 Yearbook of the I.L.C. Part 2, paras. 129–79 at 25–32.

²¹² Art. 21(1) of the Draft Articles defines pollution as “any detrimental alteration in the composition or quality of the waters of an international watercourse which results directly or indirectly from human conduct.”

²¹³ McCaffrey, Second Report, supra note 110 at 130–34.

²¹⁴ McCaffrey, Unanswered Questions, supra note 200 at 510. See also McCaffrey, S. C., “The International Law Commission and its Efforts to Codify the International Law of Waterways” (1990) 67 Annuaire suisse de droit international 32 at 50–52Google Scholar; and McCaffrey, Second Report, supra note 110 at 108–110.

²¹⁵ Others are not convinced either: see Bourne, Principles, supra note 89; Caflisch, L., “Sic Utere Tuo Ut Alienum Non Laedas: Règle prioritaire ou élément servant à mesurer le droit de participation équitable et raisonnable à l’utilisation d’un cours d’eau international?” in Internationales Recht auf See und Bin–nengewässern: Festschrift für Dr. Walter Müller 27–47 (Zurich: Schulthess, 1992)Google Scholar [hereinafter “Sic Utere”]; Wouters, supra note 96 at 80–86; and the Response of the Government of Switzerland, infra, note 221.

²¹⁶ Rosenstock, First Report, supra note 205 at 9 (para. 19).

²¹⁷ Ibid., para. 20.

²¹⁸ Ibid., para. 25, 10–11. With the exception of adding a reference to “transboun–dary acquifer” (to incorporate reference to groundwaters), Rosenstock retains this formulation of Art. 7 in his Second Report, supra note 199 at 11.

²¹⁹ Rosenstock, First Report, supra note 205 at 9 (para. 20).

²²⁰ Report of the International Law Commission on the Work of its Forty-Fifth Session, (1993) 2 Yearbook of the I.L.C. Part 2.

²²¹ The Draft Articles were transmitted by the Secretary–General of the United Nations to governments for comment by Jan. 1, 1993; Official Records of the General Assembly, 46th Sess., Supp. No. 10, Doc. A/46/10, para. 58. At the ILC’s 45th session in 1993, the Commission had before it the responses of 21 governments, including: Costa Rica, Denmark, Finland, Germany, Greece, Iceland, Iraq, Norway, Spain, Sweden, the Syrian Arab Republic, Turkey, the U.K., the U.S., and Switzerland (Doc. A/CN.4/447); Argentina, Canada, Chad, and Poland (Doc. A/CN.4/447/Add. 1); Hungary (Doc. A/CN.4/447/Add. 2); and the Netherlands (A/CN.4/447/Add. 3). Of the foregoing, more than half, including Germany, Greece, Denmark, Finland, Iceland, Norway, Sweden, the U.S., Switzerland, Canada, Poland, Hungary, and the Netherlands suggest that equitable utilization (Art. 5 of the Draft Articles) should be the primary rule. Of the eight other states, only the United Kingdom supported “in principle” the subordination of the principle of equitable utilization to that of no appreciable harm; this position appears to be based on concerns for the environment. For a thorough analysis of the issue, see the Response of the Government of Switzerland, 49–54.

²²² (1993) 23 Environmental Policy and Law 241 at 242.

²²³ Report of the International Commission on the Work of its Forty–Sixth Session (1993), UN GAOR Supp. (No. 10) UN Doc. 20, reprinted in (1993) 2 Yearbook of the I.L.C. Part 1, 20.

²²⁴ Rosenstock, First Report, supra note 205 at 9 (para. 21). He added:

In some cases territorial apportionment was agreeable to the watercourse States (Indus Water Treaty of Sept. 19, 1960), in others periodic rotation (Bayonne Treaty of 1868), sharing the benefits of a hydroelectric facility, apportionment or allotment of uses, or compensation arrangements, etc. Each of these applications of reason and equity is specific to the facts of the particular situation and thus does not seem susceptible to being recommended in a framework treaty as being of general utility. It is possible and indeed likely that a commentary of some greater length could provide a description of the possibilities States could consider in reaching equitable and reasonable results. This is clearly a major area in which the problems could be alleviated by provision for third–party involvement should the States concerned be unable to reach a mutually acceptable solution.

See also the response of the Swiss government, UN Doc. A/CN.4/447, Part 3 at 46–47 on the possibility of supplementing the provision by stipulating the modalities through which they may be implemented.

²²⁵ McCaffrey, S. C., “The International Law Commission Adopts Draft Articles on International Watercourses” (1995) 89 AJ.I.L. 395Google Scholar; McCaffrey, S. C., “The International Law Commission,” (1994) 5 Y.B.I.E.L. 516Google Scholar; Fitzmaurice, M., “The Law of Non-Navigational Uses of International Watercourses: The International Law Commission Completes its Draft” (1995) 8 Leiden J.I.L. 362Google Scholar; Morris, V. and Bourloyannis-Vrailas, M.-Ch., “Current Developments. The Work of the Sixth Committee at the Forty-Ninth Session of the U.N. General Assembly” (1995) 89 A.J.I.L. 615.Google Scholar

²²⁶ Art. 7, Commentary, para. 1.

²²⁷ The Commentary reads: “The approach of the Commission is based on three conclusions; first, that Article 5 did not provide sufficient guidance for States in cases where harm was a factor; second, that States must exercise due diligence to utilize a watercourse in such a way as not to cause significant harm; third, that the fact that an activity involves significant harm, would not of itself necessarily constitute a basis for barring it”: ibid., para. 2.

²²⁸ Ibid.

²²⁹ Art. 7, Commentary, para. 4, referring to the Alabama case reported in Moore, J. B., History and Digest of the International Arbitrations to which the United States has been a Party, vol. 1, 572–73 and 612 (1898)Google Scholar. On the notion of due diligence, see, inter alia, Pisillo-Mazzeschi, R., “The Due Diligence Rule and the Nature of the International Responsibility of States,” (1992) 35 German Y.B.I.L. 9–51Google Scholar; Dupuy, P. M., “Due Diligence in the International Law of Liability,” in OCED, Legal Aspects of Transfrontier Pollution 369 (1977)Google Scholar; McCaffrey, Fourth Report, supra note 204 at 238.

²³⁰ Commentary to Art. 7, para. 5.

²³¹ Commentary to Art. 7, para. 14.

²³² Bourne, Principles, supra note 89 at 92.

²³³ [1949] ICJ Rep. 4.

²³⁴ (1938) 3 R.I.A.A. 1905 (initial decision); (1941) 3 R.I.A.A. 1938 (final decision ).

²³⁵ (1957) 12 R.I.A.A. 281; English in 24 I.L.R. 101.

²³⁶ Bourne, Principles, supra note 89 at 84–88.

²³⁷ The recommendations of the IJC do, however, leave room for development of the coal mine subject to certain conditions: see IJC, Impacts of a Proposed Coal Mine in the Flathead River Basin 11 ( 1988) [hereinafter IJC, Flathead River Report]; also discussion in Wouters, supra note 96 at 76–78.

²³⁸ For terms of the Reference, see IJC, Flathead River Report, ibid., 3 and its Appendix A, 15–16.

²³⁹ IJC, Flathead River Report, ibid., 8. The IJC stated (at 9) that “there are far–reaching implications of this Art. 4 principle … In such cases, there is a mutual obligation to protect a fishery that migrates between the United States and Canada by a range of management practices in both countries which will ensure that the provisions of the Treaty will be honoured jointly. This principle should apply, even though the degree of risk cannot be measured with certainty.”

²⁴⁰ The reports to the IJC by its Flathead Study Board were not conclusive and the IJC noted that “nearly all of the Board’s conclusions are subject to varying degrees of uncertainty”: IJC, Flathead River Report, ibid, 7.

²⁴¹ IJC, Flathead River Report, ibid, 8.

²⁴² Bourne, Principles, supra note 89 at 90.

²⁴³ Bourne asks:

²⁴⁴ Bourne, Principles, supra note 89 at 90.

²⁴⁵ Ibid., 92. See also the Response of the Government of Switzerland, supra note 221.

²⁴⁶ Ibid.

²⁴⁷ Doc.A/CNF.151/26/Rev. 1 (vol. 1). See also Johnson, S. P. (ed.), The Earth Summit: The United Nations Conference on Environment and Development (UNCE) (1993).Google Scholar

²⁴⁸ Bourne, in his Report to the WRC, supra note 90 at 5, explained his position:

²⁴⁹ Bourne, Fresh Water, supra note 81.

²⁵⁰ See state responses, supra note 221. On further state practice in support of the equitable utilization rule, see Official Records of the General Assembly, 48th Session, Sixth Committee, A/C.6/48/SR.25, para. 53, remarks by Bangladesh suggesting Art. 7 be dropped or subordinated to Art. 5; and remarks by Brazil, A/C.6/48/SR.24, para. 68, suggesting that the “Commission would be wise not to touch Articles 5 and 7.” State responses to the issue are certainly not decisive. For an assessment of general state practice, see McCaffrey, Second Report, supra note 110; also McCaffrey, S. C., “The Non-Navigational Uses of International Watercourses,” Proceedings of the Eighty-Fourth Annual Meeting of the American Society of International Law 228–36 (1990)Google Scholar. On Canada-U.S. practice, see Wouters, supra note 96.

²⁵¹ Lammers, J. G., “Commentary on Papers Presented by Charles Bourne and Alberto Szébeky” (1992) 3 Colorado J. Int’l Env. L. & Pol. 103 at 108Google Scholar says: “It may, in my view, rightfully be concluded on the basis of international case law, that Article 7 … should have been made subject to the principle of equitable utilization laid down in Article 5” except in cases of pollution harm. See also Caflisch, “Sic Utere,” supra, note 215; Godana, B. A., Africa’s Shared Water Resources (Boulder: L. Reimer, 1985)Google Scholar; Handl, G., “The Principle of ‘Equitable Use’ as Applied to International Shared Resources” (1978–79) 14 Revue beige de droit international 40Google Scholar; Hayton, R. D., “The Present State of Research Carried Out by the English-speaking Section of the Centre for Studies and Research,” in Rights and Duties of Riparian States of International Rivers 59–90 (Centre for Studies and Research in International Law and International Relations of the Hague Academy of International Law, 1991)Google Scholar; Lammers, J. G., “Balancing the Equities in International Environmental Law,” in Dupuy, René-Jean (ed.), The Future of the International Law of the Environment 153–65 (Workshop, The Hague, Nov. 12, 1984, published 1985)Google Scholar; Moermond, J. D. and Shirley, E., “A Survey of the International Law of Rivers” (1987) 16 Denver J. of Int’l Law and Policy 139Google Scholar; Utton, A. E., “International Water Quality Law” in Teclaff, and Utton, (eds.), International Environmental Law 154–76 (New York: Praeger, 1974).Google Scholar

²⁵² Rapporteur McCaffrey reached the conclusion that: “State practice, however, does not indicate that there is an absolute no–harm rule with respect to watercourses. It is more supportive of the proposition that, where there is intense competition for a watercourse, an accommodation will be worked out that attempts to achieve an equitable and reasonable allocation of the uses and benefits of the watercourse.… One can conclude that the ‘no-harm’ doctrine is not supported in State practice.” See McCaffrey, S. C., “The Non-Navigational Uses of International Watercourses,” Proceedings of the Eighty-Fourth Annual Meeting of the American Society of International Law 228 at 231 (1990).Google Scholar

²⁵³ He chaired a recent meeting in Rome of the WRC of the ILA at which complex problems of remedies and cross–media pollution were considered; and he provided inspiration forjan exploratory report on dispute settlement at the 1995 meeting of the WRC in Jerusalem. See Bourne, C. B., “Mediation, Conciliation and Adjudication in the Settlement of International Drainage Basin Disputes,” (1971) 9 Canadian Yearbook of International Law 114.CrossRefGoogle Scholar

²⁵⁴ See fax to Mme. A. Ferrara, Administrative Secretary, ILC, June 17, 1993. As chairman of the WRC of the ILA, Bourne communicated the results of its Berlin meeting to the ILC. The WRC’s recommendations were read into the plenary meeting and are referred to in Rosenstock’s Second Report. All the WRC’s recommendations were based on Bourne’s report; see supra note 90 at 225.

²⁵⁵ Interview, Mar. 19, 1993, 1. In 1993, Bourne attended a conference at the Villa Serbalone in Bellagio, organized by A. E. Utton of the University of New Mexico Law School.

²⁵⁶ Interview, ibid. In Bangkok, Bourne gave a paper to the Mekong Secretariat on Canada’s IJC. The Mekong River has its origins in China; of the six basin states (China, Myanmar, Vietnam, Cambodia, Thailand, and Laos), only the last four are members of the secretariat. See Nanni, M., “The Mekong Committee Revisited,” (1992) 47 La communità Internazionale 188–213.Google Scholar

²⁵⁷ Ibid., 4–6. Bourne was involved in seeing whether the program might be expanded to take fresh water into consideration.

²⁵⁸ On the “notification” procedural requirement, the current rapporteur proposes a change to the ILC’s Art. 16, based on Bourne’s suggestion: see Rosenstock, Second Report, supra note 199 at 6.

²⁵⁹ See discussion in Munton, D., “Paradoxes and Prospects,” in Spencer, , Kirton, , and Nossal, (eds.), The International Joint Commission Seventy Years On, supra note 102 at 81Google Scholar; and Nossal, K. R., “The IJC in Retrospect,” in Spencer, Kirton, and Nossal, supra at 125–26.Google Scholar

²⁶⁰ Willoughby, W. R., “Expectations and Experience,” in The International Joint Commission Seventy Years On, ibid., 34Google Scholar. Under Art. 10 of the BWT, the IJC may, on consent of the two governments, decide “any questions or matters of difference arising between” Canada and the United States. Although numerous opportunities have presented themselves, e.g., the Trail Smelter case, the Columbia River dispute, and the Chicago diversion question, this function has never been used; one wonders why.

²⁶¹ This topic has, at the request of the commission, reappeared on the ILC’s agenda: see Rosenstock, Second Report, supra note 199 at 14–16.

²⁶² Bourne addressed the problems inherent in the application of the principle of equitable utilization in many of his works. Utton, supra note 251, agrees and notes (at 171 ): “The prime weakness of the principle of equitable utilization is not the generality of the concept itself, but the primitive state of the institutions to apply it. … the number of adjudications of international water disputes in the past has been meagre … judicial tribunals are not the best instruments for administering international drainage basins. They are largely after the fact, and episodic; and, in pollution cases, what is needed more than punishment after the fact is ongoing administrative machinery which will prevent the pollution before it occurs.” But countries are unwilling to adopt joint management. “Therefore in the management of international drainage basins, we must, at least in the short range, develop international commissions that use persuasion rather than coercion to plan and manage the basin.” His survey of state practice (which covered Latin America, the Rhine commission, the Danube commission, Austria, the Soviet Union, and that between the U.S. and Canada) suggests that claims of state sovereignty are at the bottom of the problem.

²⁶³ Recall that the Drafting Committee of the ILC substituted “significant” for “appreciable” in their draft (a change proposed by Rosenstock but long promoted by Bourne); and note also that Rosenstock maintains his proposal for the redrafting of Art. 7 so that equitable utilization will govern the draft (except in the case of pollution, where a rebuttable presumption will ensue).

²⁶⁴ Bourne’s work, including the ILA’s Helsinki Rules and Montreal Rules on Pollution, on which he had a great influence, has been extensively referred to by the ILC and other scholars writing in the field.

²⁶⁵ “I fee] that if you are an advocate you lose your capacity for scholarly judgement.… I tend to be the kind of person who looks and criticizes … [who] looks and observes and tries to explain.” Interview, Mar. 19, 1993, 14.

²⁶⁶ “To nie the whole thrust of law is this: you have a problem: what is the most reasonable solution you can devise for that problem? That is how the law grew, the common law. Man has to create law. Law is a response to problems. Of living in society. You have to ascertain the facts and that means all the facts. Then you say, now given those facts what is the best resolution of the problem? Somebody is going to be hurt obviously, and there must be some reconciliation of the conflict. So you take the course that is best for the community and the individual. You have to balance these things. When you face an international water problem you have competing claims; it may be that there is not enough water. In any event, you ask, if this is done how will it affect the other one and how do you resolve it?” Interview, Mar. 19, 1993, 24.

²⁶⁷ The king died soon thereafter in Britain; Ugandans remain certain he was poisoned by Idi Amin’s people. See Oloka-Onyango, J., “Constitutional Transition in Museveni’s Uganda: New Horizons or Another False Start?” (1995) 39 J. of African Law.CrossRefGoogle Scholar

²⁶⁸ See Re Upper Churchill Water Rights Reversion Act (sub nom. Churchill Falb (Labrador Corp. v. Newfoundland (Attorney General)), [1984] 1 S.C.R. 297, 8 D.L.R. (4th) 1, 53 N.R. 268, 139 A.P.R. 125, 47 Nfld. & P.E.I.R. 125.

²⁶⁹ Jaffe, a 59-year-old Canadian lawyer and land developer, was convicted in Sept. 1981 of unlawful land–sales practices. Later that same month, with at least the consent of Florida state officials, two American bounty hunters approached Jaffe as he jogged along Bloor Street West near his Toronto home. They identified themselves as Ontario law enforcement officials. At first, Jaffe willingly complied with the pair’s request for assistance. When he sensed deception, though, he began screaming for help. The bounty hunters beat and manacled Jaffe, drove him across the Canadian border to Niagara Falls, and flew him privately to Orlando, Florida, to stand trial. Jaffe was subsequently fined $150,000 by Florida Circuit Court Judge Robert Perry and sentenced to 35 years in prison. See Posner, M., “The not-so-happy hunting ground,” MacLean’s (Feb. 8, 1982) 23Google Scholar, and Posner, M., “Handcuffs across the border,” MacLean’s (July 25, 1983) 6Google Scholar. Unfortunately the U.S. maintains this viewpoint. In 1997, an inadvertently declassified U.S. presidential directive, PDD-39, signed by President Clinton on June 21, 1995, openly stated that “Return of suspects by force may be effected without the co–operation of the host government,” Globe & Mail (Feb. 5, 1997) A10. See Carter, Barry E. and Trimble, Phillip R., International Law (2nd. ed., 1995), 804–7, 809, 811–12.Google Scholar

²⁷⁰ For discussion, see Cox, Douglas, “Chief Justice McEachern’s Underlying Premise in Delgamuuk” (1992) 1 Dal. J. of Legal Studies 141Google Scholar; Raunet, Daniel, Without Surrender, Without Consent: A History of the Nisga’a Land Claims (Toronto: Douglas and Mclntyre, 1984)Google Scholar; Connaghan, C J., “Where native land claims stand in B.C.,” Globe & Mail (Mar. 30, 1995) A21.Google Scholar

²⁷¹ On Weldon, see Della M. M. Stanley, supra note 31; on Corbett, see note by Macdonald, R. St. J. in The Canadian Encyclopedia, vol. 1, 516–17 (2nd ed., Edmonton: Hurtig, 1988)Google Scholar; on MacKenzie, see P. B. Waite, supra note 32; on Humphrey, see Macdonald, R. St. J., “Leadership in Law: John P. Humphrey and the Development of the International Law of Human Rights” (1991) 29 Canadian Yearbook of International Law 3–92CrossRefGoogle Scholar; on Cohen, see Macdonald, R. St. J., “Maxwell Cohen at Eighty: International Lawyer, Educator, and Judge” (1989) 27 Canadian Yearbook of International Law 3–57.CrossRefGoogle Scholar

²⁷² As Maxwell Cohen suggested, it would be useful to find someone sympathetic in the Foreign Office who could compile figures on the number of law students from the various schools who went on to the department in the 1950s and 1960s and then compare the University of British Columbia with other schools. Interview with Maxwell Cohen, Aug. 3, 1992, 13.

²⁷³ See especially Andrew, Arthur, The Rise and Fall of a Middle Power: Canadian Diplomacy from King to Mulroney (Toronto: James Lorimer, 1993)Google Scholar; Robert Bothwell, Ian Drummond, and John English, Canada since 1945: Power, Politics and Provincialism (2nd ed., Toronto: University of Toronto Press, 1989); and for an account of the development of the Department of External Affairs, see Hilliker, John and Barry, Donald, Canada’s Department of External Affairs. Vol. 2. Coming of Age, 1946–1968. (Montreal and Kingston: McGill-Queen’s University Press, 1995).CrossRefGoogle Scholar

²⁷⁴ In addition to teaching, research and writing, Bourne exhibits a strong sense of civic virtue and community service. He acted as a member of the Academic Board of British Columbia from 1966 to 1974 and was president of the Vancouver Institute during the 1983–84 academic year. On the Academic Board, see the University of British Columbia Library, Special Collections and University Archives Division, Charles B. Bourne Fonds, Box 10, File 16. The Vancouver Institute was established in 1916 to serve as a liaison between “town” and “gown” in providing lectures of general public interest. For many years, Bourne has been a congregant of St. Anselm’s Anglican Church, Vancouver, and has served on the Board of Governors of the Anglican Theological College. From 1971 to 1980, he acted as Honorary Solicitor and Member of the Board of Governors of the Vancouver School of Theology.

²⁷⁵ Bourne was elected Honorary Editor-in-Chief in 1992: see Minutes of the Meeting of the Editorial Board of the Canadian Yearbook of International Law, Oct. 17, 1992, 3. A long-time colleague of Bourne’s commented as follows: “You must understand this: he was reserved in the highest degree. And he was very demanding of students. He told the most magnificent ghost stories. You had to crack Charles’ reserve for him to display his more than adequate sense of humour. Integrity is the guy’s middle name.” Interview with the late Professor Ray Herbert, Dec. 11, 1992.