Environmental Diplomacy - The united states–canada bilateral relationship




Although the term "environmental diplomacy" is a creation of the late twentieth century, the United States has in fact been negotiating access to natural resources since its independence from Great Britain. One could certainly interpret westward expansionism as environmental diplomacy, as the United States strove to acquire the most valuable resource of all, relatively untapped land and the various forms of mineral and living wealth that came with it. More obviously, repeated deals with Great Britain between 1783 and 1910 were a sustained effort to secure access to the grand fisheries off Newfoundland, including those for cod and several other species. These two efforts were, in a way, complementary, as fishing was dear to the New England states and landed expansion was perhaps more appealing in the South and West. In any case, the efforts of the United States and its northern neighbor to work out fisheries deals were the start of a long and generally fruitful history of bilateral cooperation on both resource use and pollution control.

John Adams and his son, John Quincy Adams, personified the New England obsession with access to the Grand Banks. At the urging of the elder Adams, the Treaty of Paris of 1783, which ended the revolutionary war, ensured that U.S. fishermen would have the liberty to fish within three miles of British territory in North America, as well as the right to continue to catch fish on the high seas. Throughout the nineteenth century, the two nations continued to struggle over these fisheries, with special difficulty interpreting the meaning of the 1783 treaty.

Not accidentally, the next attempt to regularize fishing relations came during the younger Adams's term as secretary of state (1817–1825). The Treaty of Ghent (1815), which ended the War of 1812, had not reopened Newfoundland's inshore fisheries to the United States, but many New England fishermen pressed their luck by returning to their old haunts, and as a consequence often found their vessels confiscated. Tension forced the two nations to negotiate a new convention in 1818, which explicitly spelled out which areas were open to U.S. fishermen and which were closed, as well as shore points that could be used for drying and curing fish. Great Britain agreed that these limited areas would be open to the United States forever.

It turned out that "forever" was also open to interpretation, so the Grand Banks dispute did not go away. In the 1850s, the British threatened again to close the inshore fisheries; in the ensuing Marcy-Elgin Agreement of 1854 they traded access to all of Newfoundland's waters for a reciprocity deal between the United States and British North American colonies. After the Civil War, the United States repudiated Marcy-Elgin, and negotiations opened once again. The Treaty of Washington (1871) not only resolved the Alabama Claims but also settled questions of duties on fish products and access to Newfoundland's shoreline. Congress eventually abrogated this treaty in 1885, opening the way for yet another agreement, this one emerging from the Joint High Commission meetings in 1888. Because of congressional intransigence, this agreement was never formalized, but the two sides agreed to abide by it for many years, until in 1905 Newfoundland imposed its own set of restrictions on American fishermen.

Finally, in 1907, Great Britain and the United States agreed in principle to arbitration. In 1909 they sent the matter to the Permanent Court of Arbitration at The Hague, as each side presented lengthy arguments to justify either expanded or restricted U.S. access. After months of deliberation, the court issued a complex ruling that resolved the outstanding disagreements and left London with the right to make reasonable regulations. Apparently, "reasonable" has not become the subject of any serious dispute since then.

This fisheries dispute consumed a remarkable amount of time for the young United States, reflecting the importance of both the North Atlantic Triangle (Great Britain, the United States, and Canada) and the raw materials involved. The terms of discussion were quite traditional, as negotiators never considered conservation of the cod and other valuable species, nor did they really address the problem of shifting technology. In a sense, the diplomats could not create a permanent solution because the environment, the technology, the fishing patterns, and the markets that shaped human fishing were all interconnected and all changing constantly. In short, they were trying to create static solutions to dynamic problems. This has been a recurrent shortcoming of environmental diplomacy.

Such problems were not insoluble though, as the North Pacific Fur Seal Convention revealed. The North Pacific fur seal first drew the attention of Europeans when Russian explorers encountered it in the Bering Sea in the late 1700s. The seals breed on rookery islands, with the vast majority using the Pribilof Islands of Alaska, although they spend about three-quarters of their lives on the high seas. They became the subject of intensive hunting early in the 1800s, when sea otter populations crashed, and it turned out that the thick coats that kept them warm in the ocean were quite appealing to people.

Russian management of the seals, limited though it was, sufficed as long as the seals were remote from centers of human habitation and Russia could claim both the breeding islands and the seas around them. When Russia sold Alaska to the United States in 1867, at the same time that British Columbia was rapidly gaining population, hunting of fur seals became a diplomatic issue. The U.S. government leased the Pribilofs and their inshore waters to a private company for twenty years and limited that company to 100,000 skins per year. Both the government and the stockholders profited immensely until the early 1880s. By then, sailors out of Victoria, as well as a few from U.S. ports, had begun to kill large numbers of seals on the high seas. The response of the U.S. government was to accuse Canadian sealers of piracy and seize their ships, arguing that it owned not only the seals but also the eastern Bering Sea. Such an argument did not get very far in London, where the British generally showed restraint despite their strong support for freedom of the seas. Neither side wanted to back down, nor could either justify military action.

The first move toward compromise, in 1891, was crucial for two reasons. First, the two nations agreed to arbitrate their dispute if necessary; second, they appointed a four-member scientific committee to study the issue during a visit to the Bering Sea. The scientists, like the diplomats, failed to find any common ground beyond the obvious conclusion that fur seal numbers were declining. Still, their very presence—coupled with an 1892 joint scientific commission to study the fisheries along the U.S.–Canadian border— showed that the United States and the British Empire were beginning to consider that science might offer solutions to disputes over use of resources. Given the deadlock, the two nations were headed for arbitration. In 1893, after weeks of arguing and the production of sixteen volumes full of documents, arbitrators created a buffer zone and a closed season meant to protect the seals from pelagic hunting.

Although at first the ruling settled the U.S.–Canadian disagreement, the solution turned out to be temporary, as again shifting behavior and populations left a static agreement behind. Canadian sealers responded by crossing the ocean and demolishing the small Japanese and Russian herds, after which they then began to leave the industry; in response, the Japanese government lifted limits on its pelagic sealers, who promptly crossed the Pacific and took large numbers of Pribilof seals, as they were not bound by the arbitrators' ruling. The seal population continued to decline; the herd that once numbered 2.5 million was slipping toward 200,000 early in the twentieth century.

After many starts and stops, in 1911 the United States, Great Britain, Japan, and Russia worked out a deal that allowed some flexibility. The key component was a ban on pelagic sealing, which U.S. scientists had shown unequivocally to be the cause of the decline of the seal herd. In exchange, Canada and Japan received a fixed percentage of the skins harvested from the Pribilofs each year, and they allowed the United States to decide how many, if any, seals were to be taken. In effect, the United States had purchased the other nations' right to catch seals on the high seas. They had been willing to sell in part purely because of economics, but also because the United States had pressed hard that pelagic sealing was both immoral and scientifically indefensible.

The North Pacific Fur Seal Convention was one of the first great successes in environmental diplomacy. The species rebounded quickly to more than two million individuals; all four sides were reasonably happy with the deal; and all agreed that they were willing to conserve the species. The convention broke down in 1941 on the eve of World War II, but after the war international management resumed and continues today, even though the harvest for the fur trade has ended.

In the use of science as a tool of, and conservation as a goal of, diplomacy, the fur seal negotiations proved to be something of a harbinger for North American diplomacy. In 1906, Secretary of State Elihu Root proposed that the United States and the British Empire resolve three outstanding issues: the Newfoundland fisheries, boundary waters control, and inland fisheries. On the third issue he specifically proposed that the protection and conservation of the fisheries should be a central goal. After much fruitless haggling—a facet of environmental diplomacy just as any other kind of diplomacy—Great Britain and the United States signed a treaty to regulate the fisheries along their common border; this brief treaty stood out for its emphasis on a joint regulatory committee based on a scientific understanding of the fisheries. Years later, Congress killed the treaty by failing to enforce it, but it lived on as a model for later agreements.

Attempts to apply the model to just the sockeye salmon fishery in the Northwest began with frustration but eventually met with success. Scientists and regulators met often, proposed solutions frequently, and watched them collapse consistently. On some occasions the culprits were Americans, other times they were Canadians; sometimes they were fishermen, other times diplomats. In 1929, Ottawa rejected a salmon treaty; in 1930, the U.S. Senate returned the favor. Disagreements arose over two main issues: the division between U.S. and Canadian catches and the waters to be covered. Finally, in 1937, after some minor modifications, the Senate reversed course and approved the 1930 treaty, which established the International Pacific Salmon Fisheries Commission. This commission involved Canadians and Americans in scientific research as a central tool in managing and allocating the catch of this most valuable fish species. In 1985 it was replaced by the Pacific Salmon Treaty, designed to address problems that had not been imagined in the 1930s, such as renewed political clout among the First Nations and greater foreign fishing on the high seas. Still, the startling protest by Canadian salmon fishers in July 1997, when they blockaded a ferry bound for Alaska and burned an American flag, demonstrated that diplomatic solutions rarely met everyone's requirements.

In the wake of Root's 1906 initiative, in 1909 Canada and the United States signed the Boundary Waters Treaty, which formed the International Joint Commission (IJC), with powers to regulate pollution, rivers, and the like. The treaty created a system of arbitration to find those solutions that eluded the members of the IJC. Water pollution, though, remained a low priority. On a few occasions, the two nations have established measures to reduce pollution in the Great Lakes, with a 1972 water quality agreement standing out as the most important.

Over time, the IJC found itself moving into air pollution issues, including most famously the Trail Smelter case. The Trail Smelter opened for business in 1927 and quickly earned a reputation for ruining agriculture on both sides of the British Columbia–Washington border. The smelter's owners offered to pay for damages, but they could not agree on terms with U.S. farmers, who in turn called in the Department of State. In 1941, after years of haggling, the IJC crafted an agreement to resolve the dispute based on "the polluter pays" principle. For many years, the Trail Smelter case appeared, like the fur seal arbitration case, to be a symbol of the ability of Canada and the United States to resolve their differences amicably. In recent years, however, critics have noted that diplomats and regulators deliberately kept the ruling narrow so that it would not impact other sources of transborder pollution. For example, the historian John Wirth noted that the Trail Smelter case, rather than being a victory, in fact impeded international efforts to control pollution for thirty years.

While the Trail Smelter case focused on a Canadian pollution source, a quick study of wind currents and the U.S.–Canadian boundary would suggest that the vast majority of transborder air pollution runs north, not south. As fate would have it, the industrial heartland of the United States was not only built above a belt of sulfurous coal but under wind currents that run right into the most populated parts of Canada. Nature in turn left eastern Canada especially vulnerable to acid rain—there was very little limestone to act as a natural buffer, especially in lakes and ponds popular with both locals and tourists, and the forests were easily damaged by sustained pollution. By the 1970s, Canadian politicians were complaining loudly about acid rain and calling for the U.S. government to control industrial emissions, especially from the Ohio Valley. The Reagan Administration addressed acid rain with great reluctance, suggesting first that the scientific evidence was unclear, then in 1982 simply declaring that acid rain was not an issue. In 1987, Ronald Reagan and Canadian Prime Minister Brian Mulroney announced a treaty to coordinate joint research into acid rain. Still, no steps to curb acid rain were put in place until after passage of the U.S. Clean Air Act of 1990, which mandated a reduction in sulfur dioxide emissions.

The bilateral Canadian-American relationship has also addressed wildlife protection in North America. Most famously, in 1916 the two countries signed the Migratory Bird Treaty (MBT), which protected most species of birds that lived north of the Rio Grande. The MBT divided birds into three categories: game, insectivorous, and others. Game birds could be hunted during specific seasons; insectivores were permanently protected; and those listed in the third category got protection just because they were popular. Like the fur seal treaty before it, the MBT succeeded because it combined solid science, economics, and appeal to people's fundamental ideas about aesthetics. The rationale for protecting birds was that they were beautiful and useful.

Still, the treaty stirred controversy because its motivation was largely domestic. Conservationists had pushed through Congress a law to protect migratory birds in 1913, but most of them believed that the Supreme Court would declare it to be unconstitutional. With Root's support, they focused on the idea that the treaty clause of the Constitution in Article 6 trumped the Tenth Amendment's notion that residual powers were reserved to the states, and they began to push for treaties with other countries to protect migratory birds. That they settled for the adjective "migratory" suggested that they were still very conscious that the states had the right to protect birds that did not migrate across state lines. As in the fur seal convention, the animals' movements were central to their presence on the diplomatic agenda. When in 1920 the Supreme Court ruled on the treaty's enabling legislation in Missouri v. Holland, Justice Oliver Wendell Holmes placed wildlife protection squarely in the lap of the federal government, and it has not left there since.

Since 1920, the MBT has served as the basis for bird protection throughout the United States and Canada, since the enabling legislation has been updated frequently, and it has also served as a model for three other bilateral treaties. In 1936 the United States and Mexico signed a Migratory Bird Treaty that had been on the conservationists' wish list since 1913. That treaty did little to change U.S. law, although it did add birds of prey to the protected lists, and its main value was to export U.S. ideas about bird conservation to Mexico. In 1972 the United States signed a similar deal with Japan in order to protect birds in the Pacific. And in 1976 the Soviet Union joined the club with an agreement to protect birds that migrated in the northern Pacific.

A few conclusions can be drawn from the U.S.–Canadian environmental connection. First, one can well ask about the treaties that ought to have been executed but never were. The fisheries of the Great Lakes were the scene of intense competition, but only the failed treaty of 1908 attempted to regulate them in any way. Rather than make a sustained effort to work with fishermen to create a sustainable fisheries regime on the lakes, the two governments dropped the issue and focused on local regulations that were doomed to failure. Simply put, there was no strong lobbying group or government agency committed to freshwater fisheries conservation, and now there is no commercial fishery of consequence on the lakes and many native species have been severely depleted.

Second, many treaties that are completed often are held up by strong economic opposition, sometimes until it is too late. It usually takes some dire emergency to move these treaties forward at the last moment. The fur seal convention could have been completed years earlier, but stubbornness in Ottawa and Washington prevented leaders from making a few minor sacrifices until it was almost too late for the species. The water quality agreements in the Great Lakes came long after the International Joint Commission had declared all of the boundary waters far too polluted to drink—only a catastrophe like the fire on the Cuyahoga River compelled the two sides to take any serious action. No doubt, much of the opposition to cleaning up the lakes came from the industrial concerns that would be forced to change their ways.

Third, by comparison, there have been very few treaties to regulate the environment between Mexico and the United States. In part, this trend reflects the smaller border between the two and perhaps some environmental differences in the borderlands and their species. But it also reflects differences in levels of competition—Canada and the United States were similar enough societies to demand the same goods from the same source— and deep diplomatic suspicion. The Mexican War and U.S. opposition to the Mexican Revolution, not to mention deep religious and cultural differences, left Mexico uncooperative and the United States aloof. The great differences between U.S. relations with Mexico and those with Canada suggest that environmental diplomacy requires a great deal of goodwill and trust. For all of their disagreements and harsh comments, the United States and Canada have fundamentally trusted one another since Canadian Confederation in 1867. The same certainly cannot be said about Mexico and the United States. One need look no further than the sorry state of the rivers shared by Mexico and the United States to see how far these two neighbors have to go to bring their relationship to a standard that Canada and the United States have shared for years. The signing of the North American Free Trade Agreement in 1992 and the subsequent creation of the Commission for Environmental Cooperation may well result in a leveling of the environmental relationship among the three countries, but it is not clear what the level will be.

Fourth, two large countries can solve a number of problems with bilateral diplomacy, but even then there are limits to what they can do. Just because of sheer land mass, the United States and Canada are in a position to create and solve important environmental problems in a way that is probably unique. And yet, for all of their efforts to protect birds, they really cannot save the scores of species of neotropical migrants that winter in Latin America without cooperation from at least a dozen nations. Likewise, a solution to the sealing crisis eluded them until they satisfied Japan. In short, bilateral diplomacy normally tackles relatively easy questions; as a consequence, when an environmental problem involves more countries, the diplomacy becomes significantly more important and more complex.

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