Allocation of the Non-Navigational Uses of International Watercourses: Efforts at Codification and the Experience of Canada and the United States

Patricia K. Wouters

doi:10.1017/S0069005800005063

¹ The International Law Commission, established by General Assembly Resolution 174(II) of Nov. 21, 1947, has for its main task “the promotion of the progressive development of international law and its codification.” See the Statute of the International Law Commission, UN Doc. A/CN.4/4/Rev.2 (1982).

² UN GAOR, 43d Sess., at 1, UN Doc. A/CN.4/L.463/Add.4 ( 1991 ) [hereinafter Draft Articles]. The Draft Articles are reprinted in the “Doman Colloquium on the Law of International Watercourses,” 3 Colorado J. Int’l Environmental L. and Pol., 1–11 (1992), [hereinafter Doman Colloquium].

³ Lemarquand, D.G. , “Preconditions to Cooperation in Canada-U.S. Boundary Waters,” 26 Natural Res. J. 221–42 (1986).Google Scholar

⁴ L.A. Teclaff, The River Basin in History and Law 15 (1967 ). For a survey of the law in the area, see S. C. McCaffrey, Second Report on the Law of the Non-Navigational Uses of International Watercourses, Doc. A/CN.4/399 and Add. 1 and 2, in II Yearbook of the International Law Commission, part 1, at 87–144 ( 1986), especially at 110–34; also Cafiisch, L., “Principes généraux du droit de cours d’eaux internationaux,” 219 Recueil des cours de l’Académie de droit international de La Haye, 1989–VIIGoogle Scholar (forthcoming) [hereinafter Recueil des cours]; Bourne, C.B., “The Right to Utilize the Waters of International Rivers,” 3 Canadian Yearbook of international Law, 187–264 (1965)Google Scholar, [hereinafter Bourne, “International Rivers”]. For the law in Canada and the United States, see; 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,” 37 Can. Bar Rev. 393–443 (1959)Google Scholar; Bourne, C.B., “Canada and the Law of International Drainage Basins,” in Macdonald, R., Morris, G., and Johnston, D.M. (eds.), Canadian Perspectives on International Law and Organization, 468–99 (1974)Google Scholar [hereinafter Bourne, “Law of Drainage Basins”]; and Cohen, M., “The Regime of Boundary Waters: The Canadian-United States Experience,” 3 Recueil des cours, 221–338 (1975)Google Scholar [hereinafter Cohen, “Boundary Waters”].

⁵ Teclaff, supra note 4, at 80, traces the origins of international water use allocation rules. International relations have moved from the laws of “co-existence” to “co-operation”; see Friedmann, W., The Changing Structure of International Law 60–63 (1964)Google Scholar

⁶ These theories are: absolute territorial sovereignty (also referred to as the “Harmon Doctrine”), absolute territorial integrity, prior appropriation, community of interests, and limited territorial sovereignty. See Lipper, J., “Equitable Utilization,” in Garretson, A.H., Hayton, R.D., and Olmstead, C.J. (eds.), The Law ofInternational Drainage Basins 15–89,at 18–62 (1967)Google Scholar; Godana, B.A., Africa’s Shared Water Resources 32–65 ( 1985).Google Scholar

⁷ See Andrassy, J., “Les relations internationales de voisinage,” 79 Recueil des cours, 1951–11, 73–182 Google Scholar, and Bédard, C., Le Régime juridique des Grands Lacs 130–38 (1966).Google Scholar

⁸ Lester, A., “Pollution,” in A.H. Garretson et al., supra note 6, at 89–123 Google Scholar, states at 96: “sic utere tuo has been generally recognized in the literature as a principle of international river law.” Lammers, J.G., Pollution of International Watercourses (1984) states at 570 Google Scholar, “there exists considerable uncertainty about the origin, legal nature, content, feasibility of application or even the very existence of the principle,“ and concludes, ”it is better for the sake of clarity of legal argument to avoid the maxim… in discussions about the rights and duties of States regarding the use of the waters of international watercourses.” Professor Bourne classifies the sic utere maxim as part of a “primitive system of law”: see C.B. Bourne, “Principles and Planned Measures” in the Doman Colloquium, supra note 2, at 65–92, 84–88 [hereinafter, Bourne, “Principles”]. While all agree that there are limits on a state’s rights to use its international waters, the foundation and definition of these limits differ.

⁹ See McCaffrey, Second Report, supra note 4; Bourne, , “Law of Drainage Basins,” supra note 4, at 475.Google Scholar Handl, G., “The Principle of ’Equitable Use’ as Applied to International Shared Resources,” 14 Revue belge de droit international 40–62, at 47 (1978–79)Google Scholar, quotes the OECD Directorate’s definition of equitable use as a maxim that implies “that the use of a common resource by each country, while aiming in principle at optimum exploitation, must be compatible with the safeguard of the interests of other countries concerned, on the basis of the conjunction of a series of criteria which vary according to the particular situation.”

¹⁰ McCaffrey, S.C., “The Law of International Watercourses: Some Recent Developments and Unanswered Questions,” 17 Denver J. Int’l L. and Pol. 505–26, 508 (1989)Google Scholar [hereinafter McCaffrey, “Recent Developments”].

¹¹ The primacy of the no appreciable harm rule was not readily adopted; in fact, each of the three last Special Rapporteurs had different views on the issue. See Bourne, , “Principles,” supra note 8, at 73–79.Google Scholar PubMed for a summary of this evolution.

¹² Commentary, 1988 ILC Report, 83.

¹³ McCaffrey, Second Report, supra, note 4, at 94–95 refers to the divided views of the Sixth Committee of the General Assembly. See Report of the International Law Commission on the Work of its Thirty-Ninth Session, UN GAOR Supp. (No.10), UN Doc.A/42/10 (1987), reprinted in II Yearbook of the International Law Commission, part 1, at 1, 20, 23, UN Doc. A/DN.4/SER.A/ig87/ Add. 1; on the Sixth Committee discussions, see A/C.6/43/SR, Nov. 18, 1988, at 13.

¹⁴ See McCaffrey, in Second Report, supra note 4, at 133 proposed the following Draft Article: “In its use of an international watercourse, a watercourse State shall not cause appreciable harm to another watercourse State, except as may be allowable within the context of the first State’s equitable utilization of that international watercourse.” In support, he argued that “The particular advantage of this formulation is that it embodies in express terms the duty not to cause harm, but makes clear that this duty is subject to the rights a State may have by virtue of its equitable utilization of the international watercourse.” McCaffrey’s predecessors, Evensen and Schwebel, each had their own approach to the issue. See Bourne, , “Principles,” supra note 8, at 78–82 Google Scholar PubMed; L. Caflisch, “Sic Utere Tuo Ut Alienum Non Laedas: Règle prioritaire ou élément pour déterminer le droit d’utilisation équitable et raisonnable d’un cours d’eau international?” Festschrift für Walter Müller, forthcoming [hereinafter Caflisch, “Sic Utere Tuo”].

¹⁵ S.C. McCaffrey, Fourth Report on the Law of the Non-Navigational Uses of International Watercourses, UN GAOR, International Law Commission, 40th Session, at 14, UN Doc. A/CN.4/412/Add.2 (1988) [hereinafter McCaffrey, Fourth Report].

¹⁶ See McCaffrey, “Recent Developments,” supra note 10, at 510, in which he asserts:

First the ILC’s approach affords a measure of protection to the weaker State that has suffered harm. It is not open to the stronger State to justify a use giving rise to the harm on the ground that it is “equitable.” A second, and related, point is that it is far simpler to determine whether the “no harm” rule has been breached than is the case with the obligation of equitable utilization. Thus, primacy of the “no harm” principle means that the fundamental rights and obligations of States with regard to their uses of an international watercourse are more definite and certain than they would be if governed in the first instance by the more flexible (and consequently less clear) rule of equitable utilization. And finally, the “no harm” rule is preferable in cases involving pollution and other threats to the environment. While a State could conceivably seek to justify an activity resulting in such harm as being an “equitable use,” the “no harm” principle would — at least prima facie — require abatement of the injurious activity.

See also McCaffrey, S.C., “The International Law Commission and its Efforts to Codify the International Law of Waterways,” 67 Annuaire suisse de droit international 32–55, 50–52 (1990)Google Scholar [hereinafter, McCaffrey, “The ILC”].

¹⁷ The ILC concluded that “appreciable” is the preferred qualifier, since it provides the most factual and objective standard; 1987 ILC Report, 86–101. For a critique of the ILC’s choice of this term, see the ILA’s discussion in its Seoul Report, ILA, Sixty-Second Report, Seoul 1986, at 275–83 [hereinafter Seoul Complementary Rules], and also discussion in Sachariew, K., “The Definition of Thresholds of Tolerance for Transboundary Environmental Injury under International Law: Development and Present Status,” 37 Netherlands Int’l L. Rev. 193–206, (1990)CrossRef Google Scholar; Magraw, D.B., “Transboundary Harm: The International Law Commission’s Study of ‘International Liability’,” 80 Am. J. Int’l L. 305–30, at 322 (1986)Google Scholar; Salmon, J.J.A., “La pollution des fleuves et des lacs dans le droit international” (provisional report), 58–1 Annuaire de l’Institut de droit international 193–380, 218–28 (1979).Google Scholar

¹⁸ The meaning of the term “appreciable” (it is not used in the sense of “substantial”) is found in paras. 15 and 16 of the Commentary to Article 3 of the Draft Articles.

¹⁹ Commentary to Article 7.

²⁰ The Commentary to Article 6 provides: “Where the quantity or quality of the water is such that all of the reasonable and beneficial uses of all watercourse States cannot be fully realized, what is termed a ‘conflict of uses’ results.”

²¹ Commentary to Article 5.

²² See the Commentary to Article 23, “Prevention, Reduction and Control of Pollution.”

²³ ILA, Report of the Fifty-Second Conference, Helsinki 1966, at 477 [hereinafter Helsinki Rules].

²⁴ ILA, Report of the Forty-Eighth Conference, New York 1958, at 99–102 [hereinafter New York Resolution].

²⁵ Artide 4 of the Helsinki Rules provides: “Each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the water of an international drainage basin.” Article 5 provides: “What is a reasonable and equitable share… is to be determined in the light of all the relevant circumstances in each particular case.“ Paragraph 2 to the same article lists the “relevant factors” to be considered in the assessment of “a reasonable and equitable share.”

²⁶ Seoul Complementary Rules, supra note 17. Under Article 1 of the Complementary Rules of 1986: “A basin State shall refrain from and prevent acts or omissions within its territory that will cause substantial injury to any co-basin State, provided that the application of the principle of equitable utilization as set forth in Article IV of the Helsinki Rules does not justify an exception in a particular case. Such an exception shall be determined in accordance with Article V of the Helsinki Rules.”

²⁷ The Commentary to Article 1 of the Seoul Complementary Rules provides: “The ILA considers it to be evident that the duty to refrain from activities that would cause substantial injury to other basin States, as well as the exceptions from that duty, must be accommodated to the principle of equitable utilization… In order to reach an equitable balance between the uses and needs of all the basin States also the injurious consequences of the undertaking should be assessed.”

²⁸ Article 10 of the Helsinki Rules, which deals with pollution, begins, “Consistent with the principle of equitable utilization”; the Commentary to this provision provides: “Any use of water… that denies an equitable sharing of uses by a co-basin State… is a violation of international law.” See also ILA, Report of the Fifty-Ninth Conference, Belgrade 1980, at 373; ILA, Report of the Sixtieth Conference, Montreal 1982, at 535.

²⁹ The Salzburg Resolution on the Use of International Non-Maritime Waters, 49–11 Annuaire de l’Institut de droit international, Session de Salzbourg 1961, at 381–84 thereinafter Salzburg Resolution].

³⁰ Article 2 of the Salzburg Resolution runs as follows: “Every State has the right to utilize waters which traverse or border its territory, subject to the limits imposed by international law and, in particular, those resulting from the provisions which follow. This right is limited by the right of utilization of other States interested in the same watercourse or hydrographie basin.” See also the IDI’s Resolution, “The Pollution of Rivers and Lakes and International Law,” 58–11 Annuaire de l’Institut de droit international, Session d’Athènes 1979, 196–203 [hereinafter Athens Resolution]. Article II thereof prohibits transboundary pollution.

³¹ Article 3 of the Salzburg Resolution provides: “If the States are in disagreement over the scope of their rights of utilization, settlement will take place on the basis of equity, taking particular account of their respective needs, as well as of other pertinent circumstances.”

³² Article 4 of the Salzburg Resolution provides: “No State can undertake works or utilizations of the waters of a watercourse or hydrographic basin which seriously affect the possibility of utilization of the same waters by other States except on condition of assuring them the enjoyment of the advantages to which they are entitled under Article 3, as well as adequate compensation for any loss or damage.” Article VI of the Athens Resolution refers to compensation for “victims of transboundary pollution.”

³³ Smith, H.A., The Economie Uses of international Rivers vi (1931).Google Scholar

³⁴ Ibid., 151.

³⁵ Treaty between the United States and Great Britain relating to Boundary Waters, and Questions Arising between the United States and Canada, signed at Washington, Jan. 11 1909 [hereinafter Boundary Waters Treaty or 35.1909 Treaty].

³⁶ Bourne, , “Law of Drainage Basins,” supra note 4, at 468 Google Scholar.

³⁷ At least 3,200 kilometres of the Canada-U.S. border is composed of navigable and non-navigable waters: Bloomfield, L.M. and FitzGerald, G.F., Boundary Waters Problems of Canada and the United Stales 1 (1958)Google Scholar; Graham, G., “International Rivers and Lakes: The Canadian-American Regime,” in Zacklin, and Caflisch, (eds.), The Legal Regime of International Rivers and Lakes 3 (1981).Google Scholar

³⁸ Canada was afforded full treaty-making powers in 1923: Piper, D.C., The International Law of the Great Lakes 6 (1967).Google Scholar

³⁹ Ely, N. and Wolman, A., “Principal Legal Problems of International Drainage Basins: Administration,” in Garretson, A.H. et al. (eds.), supra note 6, at 124–59.Google Scholar Cohen, , “Boundary Waters,” supra note 4, at 249,Google Scholar states: “The IWC arose out of disputes concerning the Niagara River and the Niagara Falls, the need for finding a place for hydro-electric power in the scheme of boundary waters interests, and the need to explore other critical waterways, particularly in the dry West.“ See also LaForest, G.V., “Boundary Waters Problems in the East,“ in Deener, D.R. (ed.), Canada-United States Treaty Relations 28–50, 33 (1963).Google Scholar

⁴⁰ Cohen, supra note 4.

⁴¹ These watercourses are the Niagara River (Article 5), and the St. Mary and Milk rivers (Article 6).

⁴² Article 8 of the Boundary Waters Treaty.

⁴³ ibid., Article 7.

⁴⁴ The preamble provides that the United States and Great Britain “being equally desirous to prevent disputes regarding the use of boundary waters and to settle all questions which are now pending between the United States and the Dominion of Canada involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along their common frontier, and to make provision for the adjustment and settlement of all such questions as may hereafter arise, have resolved to conclude a treaty in furtherance of these ends. ...”

⁴⁵ Article 1 appears to place navigational interests in the forefront. See Cohen, supra note 4, at 250.

⁴⁶ Article 8 describes three broad categories: ( 1 ) uses for domestic and sanitary purposes; (2) uses for navigation, including the service of canals for the purposes of navigation; and (3) uses for power and for irrigation purposes.

⁴⁷ Articles 3 and 4; see infra notes 51 and 52. The priority of uses has not been followed in practice: Jordan, F.J.E., “The International Joint Commission and Canada-United States Boundary Relations,” in Macdonald, et al. (eds.), supra note 4, at 539.Google Scholar

⁴⁸ Article 4 (para. 2) provides: “It is further agreed that the waters defined as boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property of the other.”

⁴⁹ Artide 2 provides that “any interference with or diversion from their natural channels of such waters on either side of the boundary, shall give rise to the same rights and entitle the injured parties to the same legal remedies as if such injury took place in the country where such diversion or interference occurs. . . .” See also Article 8, which allows the IJC to make provisions for the “protection and indemnity” against injury of any interests on either side of the boundary.

⁵⁰ The preliminary article provides: “boundary waters are defined as the waters from main shore to main shore of the lakes and rivers and connecting waterways, or the portions thereof, along which the international boundary between the United States and Dominion of Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the waters of rivers flowing across the boundary.”

⁵¹ Article 4 provides that, failing special agreement, the parties will “not permit the construction or maintenance on their respective sides of the boundary of any remedial or protective works or any dams or other obstructions in waters flowing from boundary waters or in waters at a lower level than the boundary in rivers, flowing across the boundary, the effect of which is to raise the natural level of waters on the other side of the boundary unless… approved by the IJC. . . .”

⁵² Article 3 prevents unilateral action that would “materially affect” the level or flow of the boundary waters on the other side of the border, although the “ordinary use of such waters for domestic and sanitary purposes“ is protected.

⁵³ The Harmon Doctrine holds that, in accordance with the notion of state sovereignty, each state has a right to use freely those waters located on, or passing through its territory. Article 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. See also Bloomfield and FitzGerald, supra note 37, at 43–46; McCaffrey, Second Report, supra note 4, at 106, especially note 97; and I. U. Reinumägi, 20 Valparaiso University L. Rev. 299–347, 310, nole 66 ( 1986).

⁵⁴ See Articles 7 through 1 2, and Articles 3 and 4 of the 1909 Treaty. The IJC is comprised of six Commissioners, three appointed from each state, who meet a minimum of twice annually. For further discussion, see Willoughby, W.R., The Joint Organizations of Canada and the United States 17–64 (1979).Google Scholar

⁵⁵ Article 10 of the Boundary Waters Treaty.

⁵⁶ Under Articles 2 and 8 of the 1909 Treaty, the IJC does not have adjudicatory authority over tributary waters.

⁵⁷ Article 8 sets out five principles to be followed by the IJC in the performance of its work and provides, inter alia, that: “[t]he… Parties shall have, each on its own side of the boundary, equal and similar rights in the use of the waters hereinbefore defined as boundary waters.”

⁵⁸ Cohen, , “Boundary Waters,” supra note 4, at 267–87Google Scholar; and, in general, Bloom-field and FitzGerald, supra note 37.

⁵⁹ Sadler, B., “The Management of Canada-U.S. Boundary Waters: Retrospect and Prospect,” 26 Natural Res. J. 359–76, 361 (1986).Google Scholar

⁶⁰ Simsarian, J., “The Diversion of Waters Affecting the United States and Canada,” 32 Am. J. Int’l L. 488–518, 488 (1938).CrossRef Google Scholar

⁶¹ Navigation was a conventional right arising from the Webster-Ashburton Treaty, 1842, 8 U.S. Stat. 572, which provided in its Article 2 that the boundary waters in question be “free and open to the use of the citizens and subjects of both parties. . . .”

⁶² Simsarian, supra note 60, at 494.

⁶³ Dealey, J.Q., “The Chicago Drainage Canal and St. Lawrence Development,” 23 Am. J. Int’l L. 307–28, 314 (1929).CrossRef Google Scholar

⁶⁴ Simsarian, supra note 60, at 496.

⁶⁵ Bloomfield and FitzGerald, supra note 37, at 42–44 and 72–75.

⁶⁶ Kalavrouziotis, T.A., “U.S.-Canadian Relations Regarding Diversions from an International Basin: An Analysis of Article II of the Boundary Waters Treaty,” 12 Fordham L.J. 658–81, 666 (1989)Google Scholar, referring to the IJC, Final Report on the Lake of the Woods Reference, 1917, at 38.

⁶⁷ Treaty and Protocol Between the United States and Great Britain in Respect of Canada to Regulate the Level of the Lake of the Woods, Feb. 24, 1925, 44 Stat. 2108; T.I.A.S. No. 6, 14 [hereinafter Lake of the Woods Treaty].

⁶⁸ M. M. Whitemann, 3 Digest of international law 831. The St. Mary River flows north, crosses the international boundary, and eventually drains into the Hudson Bay basin. The tributaries of the Milk River flow northeast, converging in Canada before returning south and draining into the Missouri River basin. See Wolfe, M.E., “The Milk River: Deferred Water Policy Transitions in an International Waterway,” 32 Natural Res. J. 55–76 (1992).Google Scholar

⁶⁹ Wolfe, supra note 68, at 66–67.

⁷⁰ Ibid., 67.

⁷¹ Simsarian, supra note 60, at 492.

⁷² Each state receives an equal share of the combined flows of the two rivers during irrigation season; Canada receives three quarters of the natural flow of the St. Mary, and one-quarter of the Milk and the United States is entitled to the balance from each (the original allocations provided for in Article 6 were changed by agreement in 1921). See Bloomfield and FitzGerald, supra note 37, at 87–93.

⁷³ Johnson, R.W., “The Columbia Basin,” in Garretson, A.H. et al. (eds.), supra note 6, at 167–255, 204, reviews the American arguments.Google Scholar

⁷⁴ Patry, A., Le régime des cours d’eau internationaux 67 (1960)Google Scholar asserts: “Cet article du traité 1909 fut peut-être la première application du principe de l’unité du bassin fluvial.”

⁷⁵ Piper, supra note 38, at 88–89. Dealey, supra note 63, at 312, 315, suggests that the unequal division in Canada’s favour was meant to counterbalance the disadvantages suffered by it in the Chicago diversion matter.

⁷⁶ Treaty between Canada and the United States of America concerning the Diversion of the Niagara River, signed at Washington Feb. 27, 1950, and entered into force Oct. 10, 1950, 132 UN Treaty Series, 223, C.T.S. 1950/3 [hereinafter Niagara River Treaty]. The Treaty effectively terminates paras. 3, 4, and 5 of Article 5 of the Boundary Waters Treaty and provides for an increased diversion of the Niagara River. A provision aimed at preserving the beauty of the Falls limits the amounts of the diversion during certain times and periods.

⁷⁷ Articles 5 and 4 of the Niagara River Treaty.

⁷⁸ Ibid., Article 2. The works were completed in 1957.

⁷⁹ Piper, supra note 38, at go. The Control Board, which evolved from the Niagara River Control Board created in 1923 by the two governments, measures the diversion amounts.

⁸⁰ Lake Michigan is one of the five lakes comprising the Great Lakes Basin international waters, which are “approximately, fifty-nine per cent Canadian,” and which constitute the “largest single supply of fresh water in the world”; Williams, S.A., “Public International Law and Water Quantity Management in a Common Drainage Basin,” 18 Case Western Reserve J. Int’l L. 155–201, 155 (1986).Google Scholar

⁸¹ IJC, Great Lakes Diversions and Consumptive Uses, 15 (1985), [hereinafter IJC, Great Lakes Diversions Report]. See also IJC, Further Regulation of the Great Lakes 22–23 (1976) [hereinafter IJC, Great Lakes Further Regulation Report].

⁸² IJC, Great Lakes Diversions Report, ibid.

⁸³ The Chicago diversion consists of three components: “(a) water supply withdrawn direcdy from Lake Michigan for domestic and industrial purposes and then discharged into the Illinois River as treated sewage; (b) runoff that once drained to Lake Michigan but is now diverted into the Illinois River; and (c) water diverted directly from Lake Michigan into the Illinois River and canal system for navigation and dilution purposes in the Chicago area”: ibid.

⁸⁴ Smith, H.A., “The Chicago Diversion,” 10 Brit. Υ Β. Int’l L. 144–57, ’45 1929).Google Scholar

⁸⁵ Piper, supra note 38, at 95.

⁸⁶ Ibid., 101.

⁸⁷ The U.S. federal government brought injunction proceedings against Illinois.

⁸⁸ Smith, supra note 84, at 147.

⁸⁹ Great Lakes-St. Lawrence Deep Waterway Treaty between the United States and Canada, Sen. Ex. C, 72 Cong., 2 Sess.

⁹⁰ Bédard, supra note 7, at 46.

⁹¹ Simsarian, supra note 60, at 515. The American Department of State solicitor in 1926 in an internal note expressed the same opinion: “It seems obvious that Canada is possessed of rights in the boundary waters, and in Lake Michigan, which are assured by law and by the terms of the Treaty of 1909, and that the diversions from Lake Michigan at Chicago sufficiently affect such rights as to require this Government, upon objection, to effect a remedy… Canada has substantial rights in respect of the waters of Lake Michigan which must be respected, and… these rights are recognized at least by implication in the second paragraph of Article 2 of the Boundary Waters Treaty of 1909…” (quotation taken from Piper, supra note 38, at 99).

⁹² Ibid., 517. Under the text of the added provision: “Nothing in this article or in any other article shall be construed as infringing or impairing, in any way, the sovereignty of the United States of America over Lake Michigan.”

⁹³ Bédard, supra nole 7, at46, states: “Toutefois, faute d’approbation par le Sénat des États-Unis, ces mesures ne furent jamais mises en application, pas plus, d’ailleurs que celles, identiques prévues par l’article 8 de l’accord du 19 mars 1941, qui, lui non plus n’a jamais pu obtenir la majorité des voix requises au Sénat des États-Unis.”

⁹⁴ IJC, Great Lakes Diversions Report 15.

⁹⁵ Ibid. The program failed to receive adequate funding in the U.S., and new legislation is required before further action can be taken.

⁹⁶ Wisconsinv. Illinois, 388 U.S. 426 ( 1967) (reprinted in IJC, Great Lakes Further Regulation Report, 91–93) limited diversion to 3,200 cubic feet per second, annually, from the earlier high of 10,000 cubic feet (283m³) per second. A state permit is required for major new or increased consumptive uses.

⁹⁷ Kalavrouziotis, supra note 66, at 658, refers to “Fire and Water,” Economist, July 23, 1988, at 22–23, in which these diversion proposals (which have never been acted upon) are discussed.

⁹⁸ See IJC, IJC Activities 1987–1988, at 40–43, docket numbers 82R, 83R, 94R, 95R, 200R, 104R, 1 o6R, and 11 1R.

⁹⁹ Piper, D.C., “A Significant Docket for the International Joint Commission,” 59 Am. J. Int’l L. 593–97, 594 (1965)CrossRef Google Scholar

¹⁰⁰ ibid., 596.

¹⁰¹ Bloomfield and FitzGerald, supra note 37, at 154.

¹⁰² IJC, Report of Mar. 19, 1958 on the Souris River, with special reference to the interim measures recommended in its report of Oct. 2, 1940, at 1 [hereinafter IJC, Souris River Report].

¹⁰³ Saskatchewan, under Article 2 of the Boundary Waters Treaty was free to divert as it pleased (i.e. by pipeline to Manitoba). Instead, it continued to pass 50 per cent of the natural flow of the Souris to North Dakota until the matter could be finally resolved: IJC, Souris River Report 5.

¹⁰⁴ Bloomfield and FitzGerald, supra note 37, at 155.

¹⁰⁵ IJC, Souris River Report 2–3.

¹⁰⁶ Saskatchewan asked for “a permanent settlement” demanding increased diversion; it “always considered that the waters in Saskatchewan belong to Saskatchewan while they are within the boundaries of the province and this view is consistent with the terms of Article II of the 1909 Treaty”: IJC, Souris River Report 5.

¹⁰⁷ Ibid., 7.

¹⁰⁸ Ibid., 7–8.

¹⁰⁹ The agreement between the Government of Canada and the Government of the United States of America for Water Supply and Flood Control in the Souris River Basin came into force upon signing, Mar. 24, 1989.

¹¹⁰ Article 2 refers to the details regarding the construction of the Rafferty and Alameda dams.

¹¹¹ See infra note 117 and accompanying text.

¹¹² Article 4.

¹¹³ Article 4(3) provides that construction costs for the dams will be allocated “on the proportionate use of the Rafferty Dam and Alameda Dam for flood control in the U.S.A. and water supply in Canada.”

¹¹⁴ Articles 3(5), 4(4) (5) (6), 5, 8 (1).

¹¹⁵ Article 6.

¹¹⁶ Article 11(2). Article 2 of the Boundary Waters Treaty would still seem to apply.

¹¹⁷ Treaty Relating to the Co-operative Development of the Water Resources of the Columbia River Basin, Jan. 17, 1961, with related agreements effected by exchange of notes at Washington Jan. 22, 1964, and at Ottawa Sept. 16, 1964, 542 UN Treaty Series 244, C.T.S. 1964/2 [hereinafter Columbia River Treaty].

¹¹⁸ Yet, in the midst of these debates, “one of the interesting things about the diversion argument was that virtually no one suggested that the 1909 Treaty should be terminated, although Article 14 of the 1909 Treaty provides that it may be terminated on twelve months’ written notice”: Johnson, supra note 73, at 239.

¹¹⁹ In North America, only the Mississippi, St. Lawrence, and Mackenzie rivers exceed the flow of the Columbia River. See Lemarquand, D.G., International Rivers: The Politics of Cooperation 54 (1977).Google Scholar

¹²⁰ Lee, K.N., “The Columbia River Basin: Experimenting with Sustainability,” 31(6) Environment 7 (July/August 1989).Google Scholar

¹²¹ Johnson, supra note 73, at 171.

¹²² The United States was especially concerned with flood control on the Columbia River (The Dalles had been devastated by a flood in 1894). The other major issue was the development of hydroelectric power. Eleven applications regarding development of the Kootenay River were put to the IJC between 1927 and 1944. IJC, Report on Principles for Determining and Apportioning Benefits from Cooperative Use of Storage of Waters and Electrical Interconnection Within the Columbia River System 26 [hereinafter IJC, Columbia River Apportionment Report].

¹²³ Johnson, supra note 73, at 212.

¹²⁴ Ibid., 212–16. See McNaughton, A.G.L., “The Proposed Columbia River Treaty,” 18 Int’l J. 148–65 (1963).Google Scholar

¹²⁵ A combination of the Non-Diversion and Copper Creek Diversion Plans was adopted. Control of the Columbia would come from three dams to be built in Canada: the Mica (the largest on the main stem of the Columbia), the Arrow Lakes (on the main river), and the Duncan Lake (on the Kootenay system tributary).

¹²⁶ Article 2 of the 1909 Boundary Waters Treaty was at the heart of the debate. For a summary of the arguments advanced by both sides, see Johnson, supra note 73, at 205–6, and 167–70.

¹²⁷ The United States refused to compensate Canada for the downstream benefits (increased flood control and hydroelectric power) that it would receive as a result of the development.

¹²⁸ See “Legal Aspects of the Use of Systems of International Waters: With Special Reference to the Columbia-Kootenay River System Under the Treaty of 1909 and Under Customary International Law,” Memorandum of the Department of State prepared by Mr. William L. Griffin, April 1958, Sen. Doc. 118, 85th Cong., 2nd Sess., 146 [hereinafter Griffin Memorandum], which states: “Riparians are entitled to share in the use and benefits of a system of international waters on ajust and equitable basis.” See also Johnson, R.W., “Effect of Existing Uses on the Equitable Apportionment of International Rivers: An American View,” 1 Univ. Brit. Col. L. Rev. 389–98 (1959–1963)Google Scholar; Goldie, D.M.M., “Effect of Existing Uses on Equitable Apportionment of International Rivers: A Canadian View,” ibid., 399–408.Google Scholar

¹²⁹ Griffin Memorandum, ibid., 1–5; Johnson, supra note 73, at 203.

¹³⁰ Martin, C.E., “International Water Problems in the West,” in Deener, supra note 39, at 55,Google Scholar discusses the principles of legal settlement and the positions taken by each of the two states in the Columbia River dispute.

¹³¹ The IJC was asked to provide “recommendations concerning the principles to be applied in determining: (a) the benefits which will result from the cooperative 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”: IJC, Columbia River Apportionment Report 2.

¹³² Ibid.

¹³³ The recommendations included three general principles, seven “power principles” and six “flood control” principles: ibid., 5–30.

¹³⁴ The Treaty incorporates the “sharing-of-benefits principle”: Epstein, M., “The Columbia River Treaty: A Chronological Study,” 5 Columbia J. Transnational L. 167–72, 169 (1966).Google Scholar

¹³⁵ The IJC stated that, while a benefit-cost ratio approach was an important guideline in apportioning the benefits and costs of the project, “there may be important non-monetary factors, not reflected in the benefit-cost ratio, which may require consideration and which may be of compelling influence in choosing projects for construction. Such factors include the disruption of community and regional economies, scenic, historic or aesthetic considerations, the preservation of fish and wildlife, and similar considerations, which cannot be adequately evaluated in monetary terms”: TJC, Columbia River Apportionment Report 6.

¹³⁶ Columbia River Treaty, Article 4.

¹³⁷ Ibid., Article 5; power benefits as determined under Article 7.

¹³⁸ Ibid., Article 6.

¹³⁹ Ibid., Article 13 provides for increased rights of diversion; these have not been acted on: Swainson, N.A., “The Columbia River Treaty: Where Do We Go From Here?” 26 Natural Res. J. 243–60, 247 (1986).Google Scholar

¹⁴⁰ Ibid., Article 12. The United States exercised this option: Swainson, supra note 139

¹⁴¹ Ibid., Article 1, Protocol.

¹⁴² Ibid., Article 8, Protocol and Annex Β of the Treaty.

¹⁴³ Ibid., Article 15, “Permanent Engineering Board.”

¹⁴⁴ Ibid., Article 16.

¹⁴⁵ The Columbia River Treaty was signed by Prime Minister Diefenbaker and President Eisenhower in 1961. The Protocol was finalized in 1964 vinder the new governments of President Kennedy in the United States and Prime Minister Pearson in Canada. The resolution of the issue was a priority for all of the four national government parties involved over the course of the conflict.

¹⁴⁶ Castel, J.G., International Law 416 (1976).Google Scholar

¹⁴⁷ Article 17 of the Columbia River Treaty and para. 12 of the Protocol provide that the Columbia River agreement does not set any precedent. The provisions of Article 2 of the 1909 Boundary Waters Treaty survive for all other international watercourses.

¹⁴⁸ IJC, “Transboundary Implications of the Garrison Diversion Unit,” Report to the Governments of Canada and the United States 5 ( 1977) [hereinafter IJC, Garrison Report]. See ibid., 5–9, for a history of the issue, and 11–18 for more details of the project. See also Caldwell, Lynton K., “Garrison Diversion: Constraints on Conflict Resolution,” 24 Natural Res. J. 839–63 (1984)Google Scholar; Nossal, K.R., “The International Joint Commission and the Garrison Diversion,” International Perspectives 22–25(1978).Google Scholar

¹⁴⁹ IJC, Garrison Report, ibid.

¹⁵⁰ Ibid., 6; complete text of the reference, ibid., 130–32. The reference urged the United States and Canada ascribe particular importance to the views of the Commission on this matter. Accordingly, the Commission is requested to complete its investigation and submit its report in the minimum possible time, consistent with a thorough examination of the subject, but in any case, not later than October 31, 1976”: ibid., 132 (the date of the reference was Oct. 22, 1975, and the final report was made on Aug. 12, 1977).

¹⁵¹ Ibid., 88. North Dakota suggested that “its own strict water quality standards would guarantee the utility of return flows passed into Canada.”

¹⁵² Ibid.

¹⁵³ Ibid., 89–93. The- adverse impacts included degraded water quality, inter-basin transfer of foreign biota with subsequent reduction of fish population, decreased waterfowl population, increased blackfly population, and serious injury to the health and property of native peoples in Canada.

¹⁵⁴ Ibid., 121.

¹⁵⁵ Ibid., 3.

¹⁵⁶ Ibid., 96–97.

¹⁵⁷ Ibid., 97.

¹⁵⁸ Ibid., 117.

¹⁵⁹ Ibid.

¹⁶⁰ Ibid. The IJC stated further: “At present, Canada and the United States are constrained in resource development activities only by Article IV for the upstream neighbour and by local law and policy for the downstream country. In such a situation the downstream state naturally will seek to utilize, to the fullest extent possible, the potential municipal and industrial uses of its share of the river. It also will demand of the upstream state that the waters come to the boundary free from pollution, at least to the extent defined as ‘injury.’ Such debates tend to provoke procedural and negotiating disputes that are likely to be not only distressing but insoluble”: ibid., 118.

¹⁶¹ Ibid.

¹⁶² Ibid., 122 (Recommendation 3). The IJC was not unanimous in its position; Commissioner Beaupré, while in agreement with most of the IJC’s conclusions and recommendations, differed on the approach taken to the Water Quality Agreement portion of the Report: ibid., 1 25–28.

¹⁶³ Ibid., 122. Recommendation 2 provides that “if and when” the two governments agree that the risk of biota transfer is eliminated or agreed to be no longer a matter of concern, the GDU could be constructed, provided that six conditions were met.

¹⁶⁴ IJC, Water Apportionment in the Poplar River Basin, 1978 [hereinafter IJC, Poplar River Report]. The text of the reference is found at 83–84.

¹⁶⁵ Ibid., 3. Uses of the basins were largely appropriated: the IJC noted that there were 225 projects in Saskatchewan and 672 projects in Montana: ibid., 15–16; for domestic, irrigation, municipal, industrial, and wildlife purposes: ibid., 19.

¹⁶⁶ Saskatchewan held the view that as upstream user it could be entitled to 70 per cent of the natural flow at the Boundary “without detrimental effects to the downstream country. . . .”: ibid., 37. The Fort Peck Sioux and Assiniboine tribes claimed a 70 per cent apportionment in favour of the United States on the basis of “existing uses of water and development potential”: ibid, 47. Montana urged that the Saskatchewan power plant (already under construction) should not be considered as an existing use: ibid., 46; and while Montana “did not argue for existing use consideration on behalf of the Fort Peck Indians… [it] claimed the special nature of their dependence on Poplar flows should be considered”: ibid., 40.

¹⁶⁷ Ibid., 68.

¹⁶⁸ Ibid., 81. This recommendation was subject to the conditions set out by the IJC at 23–25 of the Report, where the particular flows of each river and its tributaries are apportioned so that the net result is an equal division of the aggregate natural flow.

¹⁶⁹ IJC, Water Quality in the Poplar River Rasin, 1981 [hereinafter IJC, 1981 Poplar Water Quality Report ].

¹⁷⁰ IJC, 1981 Poplar River Water Quality Report, 199.

¹⁷¹ Ibid., 191, 203.

¹⁷² In the Poplar River water quality reference this approach led the IJC to conclude: “Thus, considering the above uncertainties, the small extent of the estimated impacts on downstream users in relation to the basin as a whole, the actions taken and commitments made in Canada to minimize the effects, the proposed division of the transboundary flows, and the course of action hereinafter recommended, the Commission concludes that the apportionment recommended in 1978 remains equitable and should be adopted… and that Article 4 of the Treaty will not be violated in so doing”: ibid., 198–99.

¹⁷³ Ross, D.,“International Management of the Flathead River Basin,” 1 Colorado J. Int’l Environmental L. and Pol. 223–39, 223 (1990).Google Scholar

¹⁷⁴ IJC, “Impacts of a Proposed Coal Mine in the Flathead River Basin,” Dec. 1988, at 6 [hereinafter IJC, Flathead River Report].

¹⁷⁵ Ibid., 3. For the full text of the reference, see ibid., Appendix A, 15–16. Article 4 of the Boundary Waters Treaty provides that waters “shall not be polluted on either side to the injury of health or property on the other.”

¹⁷⁶ See Ibid., 4, for a list of the reports submitted by the Flathead River International Study Board.

¹⁷⁷ The uncertainties included concerns over “groundwater flows between the mines site and the creeks, with concomitant concern about toxic levels of nitrogen components, temperature changes and dissolved oxygen levels [and] potential risk of extreme or unusual events occurring such as the failure of waste dumps and settling ponds”; there were also uncertainties about the impact on various fish populations: ibid., 7.

¹⁷⁸ Ibid., 8.

¹⁷⁹ Ibid.

¹⁸⁰ Ibid., 9.

¹⁸¹ Ibid.

¹⁸² Ibid.

¹⁸³ Ibid., 8.

¹⁸⁴ Ibid., 11. The IJC’s recommendations were that:

(1)
(1) the mine proposal as presently defined and understood not be approved;
(2)
(2) the mine proposal not receive regulatory approval in the future unless and until it can be demonstrated that:
(a)
(a) the potential transboundary impacts identified in the report of the Flathead River International Study Board have been determined with reasonable certainty and would constitute a level of risk acceptable to both Governments; and,
(b)
(b) the potential impacts on the sports fishery populations and habitat in the Flathead River System would not occur or could be fully mitigated in an effective and assured manner; and,
(3)
(3) the Governments encourage and pursue, with the appropriate jurisdictions, other opportunities for defining and implementing compatible and sustainable development activities and management strategies in the upper Flathead River basin.

¹⁸⁵ The IJC, Great Lakes Diversions Report, Appendix G, 82, lists the following as “Suggested Diversions that Have International Implications”: Grand Canal Plan (Kierans); Great Lakes-Pacific Waterways Plan (Decker); North American Water and Power Alliance (NAWAPA); Magnum Plan (Magnusson); Kuiper Plan (Kuiper); Central North America Water Project (CeNAWP); Western States Water Augmentation Concept (Smith); NAWAPA + MUSHEC or Mexican-States Hydroelectric Commission (source quoted Biswas, Asit K., “North American Water Transfers: An Overview,” Water Supply and Management, 1978, vol. 2).Google Scholar To date, the IJC has not been involved in any of the foregoing projects.

¹⁸⁶ E.g., in the Belly-Waterton Rivers Reference of Jan. 12, 1948, under which the IJC was asked to make recommendations on the apportionment and uses of the waters of the Belly and Waterton Rivers, the Commission divided on national lines; a joint report was not made to the governments. Bilder, R.B., in “When Neighbours Quarrel: Canada-U.S. Dispute Settlement Experience,” Disputes Processing Research Program, Working Papers, Series 8, 55 (May 1987)Google Scholar notes that out of 110 applications and references considered to that date by the IJC, “in only four cases have there been dissenting opinions; in only two of these were the dissents divided on national lines. Only two reports of any of the Boards of the Commission have divided along national lines. More than three-quarters of the Commission recommendations with respect to its references have been adopted by the two governments, in one form or another.”

¹⁸⁷ The 1972 Great Lakes Water Quality Agreement granted the IJC the authority to oversee pollution projects and to establish a Great Lakes regional office.

¹⁸⁸ See Munton, D., “Paradoxes and Prospects,” in Spencer, R., Kirton, J., and Nossal, K.R. (eds.), The International Joint Commission Seventy Years On 60, at 81 (1981).Google Scholar Munton discusses three recent situations (the St. Marys River ice boom, Point Roberts, and the Windsor regional office) in which the IJC attempted unsuccessfully to broaden its reaches; he concludes, at 81: “The Commission nevertheless remains a less than equal match for the sovereign will of the two governments which created it.” Munton also notes that where transboundary problems are more controversial (i.e. “where up-stream and down-stream ‘stakes’ are not similar”), and in view of the emergence of complex ecosystem issues, the task of the IJC will become increasingly more difficult.

¹⁸⁹ For text of the Reference, see supra note 81.

¹⁹⁰ Ibid.

¹⁹¹ The 1986 Reference is found in “Living With The Lakes: Challenges and Opportunities: A Progress Report to the International Joint Commission,” by the Project Management Team, Apppendix 1,67–75 (July 1989) [hereinafter IJC, Great Lakes Report, 1989].

¹⁹² Great Lakes Water Quality Agreement, United States-Canada, Apr. 15, 1972, C.T.S. 1972/12, 23 UST 301, 24 UST 2268, TIAS No. 7312, 7747; amended 1978, Great Lakes Water Quality Agreement, United States-Canada, Nov. 22, 1978, C.T.S. 1978/20, 30 UST 1384, TIAS No. 9257.

¹⁹³ IJC, Great Lakes, 1989, at 2; for the full text of the news release, see ibid., Appendix 2, 79–80.

¹⁹⁴ Ibid., 2.

¹⁹⁵ The Skagit-High Ross Dam project involved the Skagit River, which rises in British Columbia, and Ross Lake, located in the state of Washington. The IJC’s 1942 approval of the Seattle City Light Company’s hydroelectric development project was challenged by British Columbia and the bitter controversy was finally resolved by a complex agreement on March 30, 1984, the result of creative intervention by the IJC. For further discussion, see Lemarquand, supra note 1 19, at 79–93, and Kirn, J.K., and Marts, M.E., “The Skagit-High Ross Dam Controversy: Negotiation and Settlement,” 26 Natural Res. J. 261–90 (1986)Google Scholar; Hayton, R.D., and Utton, A.E., “Transboundary Groundwaters: The Bellagio Draft Treaty,” 29 Natural Res. J. 663–722, 711 (1989).Google Scholar

¹⁹⁶ See supra note 16.

¹⁹⁷ Bilder, R.B., “The Settlement of Disputes in the Field of the International Law of the Environment,” 144 Recueil des cours 139–240, 178 (1975–1).Google Scholar

¹⁹⁸ Griffin Memorandum, supra note 128, 148–49.

¹⁹⁹ See Bourne, , “Principles,” supra note 8, at 83–88 Google Scholar PubMed on the “injury/harm” debate.

²⁰⁰ McCaffrey, “Recent Developments,” supra note 10.

²⁰¹ Article 21(2) of the ILC Draft Articles provides: “Watercourse States shall, individually or jointly, prevent, reduce and control pollution of an international watercourse that may cause appreciable harm to other watercourse States or to their environment, including harm to human health or safety, to the use of the waters for any beneficial purpose or to the living resources of the watercourse. Watercourse States shall take steps to harmonize their policies in this connection.” The commentary to the article states: “This paragraph is a specific application of the general obligation contained in article 7 not to cause appreciable harm to other watercourse States.”

²⁰² Handl, supra note 9, at 61–62.

²⁰³ The IJC demonstrated how water quality objectives can be a condition of an equitable apportionment; see IJC, 1981 Poplar River Water Quality Report, 203. For a similar approach, see Caflisch, “Sic Olere,” supra note 14, Part 5, “Analyse et conclusions,” in which he concludes, inter alia, that the equitable utilization rule (with the proviso that a use that causes serious harm should never qualify as equitable) should be the governing rule. Professor Lammers suggests that the “mitigated no substantial harm principle” should be the primary rule in pollution questions, since it offers a less flexible standard than equitable utilization: see Lammers, J.G., “‘Balancing the Equities’ in International Environmental Law,” in The Future of the International Law of the Environment, 153–65 (Colloque 1984, Académie de droit international de La Haye, 1985)Google Scholar; Lammers, supra note 8, at 496–501, 540–43, 580–84, 600; also Polakiewicz, J.G., “La Responsabilité de l’État en matière de pollution des eaux fluviales ou souterraines internationales,” 118 Journal du droit international, 283–347 (1991)Google Scholar, who argues that the protection of the environment should be the primary rule, and that in no case should appreciable harm caused by pollution qualify as an equitable use.

²⁰⁴ 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 1990, 228–36, 231Google Scholar [hereinafter McCaffrey, “Non-Navigational Uses”].

²⁰⁵ The comments made by Mr.Krishna, R. in McCaffrey, “Non-Navigational Uses,” ibid., 234–35,Google Scholar on c’ose examination reveal the primacy of equitable utilization. Also the Indus River settlement between Pakistan and India, in which the World Bank played a central role, was resolved in accordance with the equitable utilization rule.

²⁰⁶ Prosper Weil stated in his article “Towards Relative Normativity in International Law?” 77 Am. J. Int’l L. 413–42, at 415 (1983), that “[t]he acts accomplished by subjects of international law are so diverse in character that it is no simple matter for a jurist to determine what may be called the normativity threshold; i.e. the line of transition between the nonlegal and the legal, between what does not constitute a norm and what does.” See also Fabri, H. Ruiz, “Règles coutumières générales et droit international fluvial,” 36 Annuaire français de droit international 818–42, at 842 (1990)CrossRef Google Scholar: “L’ambiguïté qui imprègne la recherche de règles coutumières générales en droit fluvial n’est dès lors pas près d’être levée.”

²⁰⁷ The prominence of transnational environmental impact assessments appears to be a consequence of this: see Handl, supra note 9, at 56–57.

²⁰⁸ Bourne, C.B., “International Law and Pollution of International Rivers and Lakes,” 6 Univ. Brit. L. Rev. 1 15–36, 121 (1971).Google Scholar

²⁰⁹ Smith, supra note 33, at 144.

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Allocation of the Non-Navigational Uses of International Watercourses: Efforts at Codification and the Experience of Canada and the United States

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Allocation of the Non-Navigational Uses of International Watercourses: Efforts at Codification and the Experience of Canada and the United States

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