2014-2015 NIAGARA INTERNATIONAL MOOT COURT COMPETITION

A Dispute Arising Under the Statute of the

International Court of Justice

February 22, 2015

THE GOVERNMENT OF CANADA

(Applicant)

v.

THE GOVERNMENT OF THE UNITED STATES

(Respondent)

MEMORIAL OF THE APPLICANT

TEAM#: 2015-11

  11A  –  Page  ii  

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................ ii INDEX OF AUTHORITIES ........................................................................................................... v STATEMENT OF JURISDICTION.............................................................................................. ix QUESTIONS PRESENTED ........................................................................................................... x STATEMENT OF FACTS ............................................................................................................ xi SUMMARY OF ARGUMENT ...................................................................................................... 1 ARGUMENT .................................................................................................................................. 2 I. THE US FEDERAL OFFICIALS’ DECISION TO DEPORT BILL AND LUCINDA NEWTON, WITHOUT CONSIDERING THEIR CONNECTION WITH THEIR US-BORN SON, CONSTITUTES A VIOLATION OF INTERNATIONAL LAW FOR WHICH THE UNITED STATES IS RESPONSIBLE ................................................ 2

A. MANDATORY DEPORTATION VIOLATES CHILDREN’S RIGHTS .................. 2

1) Mandatory Deportation Contravenes the Child’s Right to have their Best Interests Considered .............................................................................……..2

i. Mandatory Deportation’s Preclusion of the Child’s Best

Interests is Contrary to the U.N. Convention on the Rights of the Child ....................................................................................................... … 2

ii. Mandatory Deportation’s Preclusion of the Child’s Best Interests is Contrary to the European Convention on Human Rights, the American Convention on Human Rights, the International Covenant on Civil and Political Rights, and International Custom ................................................................................... 5

2) Mandatory Deportation Precludes the Child’s Right to be Heard ......................... 7

B. MANDATORY DEPORTATION VIOLATES THE RIGHT TO FAMILY

UNITY AND IS THEREFORE IMPERMISSIBLE ..................................................... 7

1) Family Unity is a Well-Established Right Under International Law that must be balanced with the Goals of Domestic Immigration Policy ........................ 7

i. Multiple International Covenants have established the Right to Family Unity ............................................................................................. 8

  11A  –  Page  iii  

ii. Case Law has established the Balancing Test as a Necessary Component of Deportation Proceedings, and Mandatory Deportation Precludes this Test ................................................................. 9

C. MANDATORY DEPORTATION WAS IMPERMISSIBLE NATIONAL ORIGIN DISCRIMINATION ...................................................................................... 13

II. THE ONTARIO GOVERNMENT’S APPROVAL OF GROUNDWATER REMOVALS AT THE HBC PLANT AT VANDAL LAKE DOES NOT CONSTITUTE A VIOLATION OF INTERNATIONAL LAW ................................................. 15 A. THE GROUNDWATER IN QUESTION IS ENTIRELY WITHIN CANADA

AND NOT SUBJECT TO INTERNATIONAL LAW ....................................................... 15 1) Treaties between Canada and the United States exclude tributary aquifers from

triggering international legal obligations ........................................................................ 16

2) The inclusion of tributary aquifers within the scope of transboundary watercourses is not a general practice of States .............................................................. 17

3) In the event that tributary aquifers are included within the customary definition of transboundary watercourses, the maxim of lex specialis requires that the relevant treaties should be given priority in governing the dispute ................................. 20

B. THERE WAS NO OBLIGATION TO COMMUNICATE ABOUT GROUNDWATER REMOVALS IN CONNECTION WITH APPROVAL OF THE VANDAL LAKE PLANT UNDER INTENATIONAL LAW ................................. 21 1) If an obligation to communicate is applicable to tributary aquifers, the

obligation was not triggered by the approval of the HBC Facility. ................................. 21

i) Procedural obligations are not triggered by the speculation of remote risk ............. 21

ii) There is no evidence indicating that the groundwater removals would have “significant adverse effects” on the Respondent’s interests ............................ 22

C. THERE WAS NO OBLIGATION OF EQUITABLE USE OF THE VANDAL LAKE AQUIFER UNDER INTERNATIONAL LAW ..................................................... 24 1) The equitable use of tributary aquifers does not form a part of customary

international law ............................................................................................................... 24

  11A  –  Page  iv  

i) No constant, virtually uniform or extensive state practice of the equitable use of tributary aquifers exists .................................................................................. 24

ii) The requisite opinion juris is lacking ....................................................................... 25

2) To the extent that the equitable use doctrine does apply, the approval of the HBC Facility was not a violation thereof ......................................................................... 27

CONCLUSION ............................................................................................................................. 29

  11A  –  Page  v  

INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS Canada, Department of External Affairs et al., Annex to Exchange of Notes Dated January 22,

1964 between the Governments of Canada and The United States Regarding the Columbia River Treaty, “Columbia Treaty Protocol and Related Documents”, (Ottawa: Queen’s Printers, 1964).

Charter of the United Nations, 26 June 1945, Can TS 1945 No 7. Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950,

213 UNTS 221 art 8(1) (entered into force 3 September 1953). Convention on the Law of the Non-navigational Uses of International Watercourses, 21 May

1997, UN Doc A.51/869, UNTS 869 (entered into force 17 August 2014). Convention on the Rights of the Child, 20 November 1989, 28 ILM 1448 (entered into force 2

September 1990). Great Lakes Water Quality Agreement of 1972, 15 April 1972, United States and Canada, 23

UST 301, (Protocol Amending the Agreement Between Canada and the United States of America on Great Lakes Water Quality, 1978, as Amended on October 16, 1983, on November 18, 1987, and on September 7, 2012).

International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171

(entered into force 23 March 1976). International Covenant on Economic, Social, and Cultural Rights, 16 December 1966, 993

UNTS 3 (entered into force 3 January 1976). OAS, American Convention on Human Rights, OR OEA Doc. 36 (1969). Statute of the International Court of Justice, 26 June 1945, 1155 UNTS 331, TS No 933. Treaty Between Great Britain and the United States relating to Boundary Waters and Questions

Arising between the United States and Canada, 11 January 1909, 36 US Stat 2448, UKTS 1910 No 23.

Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331.

UN DOCUMENTS

Committee on the Rights of the Child, General Comment No 6, UN Doc No CRC/GC/2005/6, 39th Sess (2005) para 13.

  11A  –  Page  vi  

Committee on the Rights of the Child, General Comment No 14, CRC/C/GC/14, 62nd Sess

(2013). Declaration on the Rights of the Child, G.A. Res. 1386 (XIV), UNGAOR, Supp No 16, UN Doc

A/4354 (1959). Human Rights Committee, General Comment No 15, UN Doc HRI/GEN/1/Rev 1, 39th Sess

(1994). Human Rights Committee, General Comment No 19, UN Doc HRI/GEN/1/Rev 1, 39th Sess

(1994). International Law Commission, Draft Articles on Prevention of Transboundary Harm from

Hazardous Activities with commentaries, appears in Yearbook of the International Law Commission, 2001, vol 2, part 2, (New York: UN, 2001).

International Law Commission, Fragmentation of international law: Difficulties arising from the

diversification and expansion of international law, GA, 58 Sess, Supplement No. 10, UN Doc A/CN.4/L.702, (2006).

International Law Commission, Shared natural resources: comments and observations by

Governments on the draft articles on the law of transboundary groundwaters, GA, 60 Sess, UN Doc A/CN.4/595, (2008).

International Law Commission, Stephen McCaffrey, Special Rapporteur, “Third report on the

law of the non-navigational uses of international watercourses” (UN Doc A/CN.4/406) in Yearbook of the International Law Commission 1987, vol 2, part 1 (New York: UN 1989).

Official Records of the General Assembly, 56th Sess, Supp No 10, UN Doc A/56/10, para. 98,

the commentary to draft article 2. Sovereignty over Natural Resources, GA Res. 1803 (XVII), 17 UN GAOR Supp (No 17) at 15,

UN Doc A/5217 (Dec 14, 1962). United Nations Economic Commission for Europe, Convention on Environmental Impact

Assessment in a Transboundary Context, 1989 UNTS 310 (entered into force Sept. 10, 1997).

United Nations Environment Programme, Rio Declaration on Environment and Development,

UN Doc A/CONF.151/26 (vol. I) (1992). United Nations Environment Programme, Goals and Principles of Environmental Impact

Assessment, UN Doc UNEP/GC.14/17, Annex III (1987).

  11A  –  Page  vii  

Universal Declaration of Human Rights, G.A. Res. 217A (III), UNGAOR, 3rd Sess, UN Doc

A/810 (1948) 71.

JUDICIAL AND ARBITRAL DECISIONS Asylum Case (Columbia v Peru) [1950] ICJ Rep 266. Berrehab v Netherlands, (1988), 138 ECHR 15, 11 EHRR 322. Case concerning the Right of Passage over Indian Territory (Portugal v India) [1960] ICJ Rep 6. Ciliz v Netherlands, No 29192/95, [2000] VII ECHR 267, 2 FLR 469. Johansen v. Norway, No 17383/90 [1996] III ECHR 966, 23 EHRR 33. North Sea Continental Shelf Cases (Germany v Denmark; Germany v Netherlands), [1969] ICJ

Rep 3. Pulp Mills on the River Uruguay Case (Argentina v Uruguay), [2010] ICJ Rep 14. Winata v Australia, IHRL 1682, UNHRC, 2001, UN Doc CCPR/C/72/D/930/2000.

DOMESTIC LEGISLATION

8 USC §§ 1101-1537 (2006). Environmental Assessment Act, RSO 1990 c E-18.

DOMESTIC JURISPRUDENCE

Beharry v Reno, 183 F Supp (2d) 584 (EDNY 2002). Maria v McElroy, 68 F Supp (2d) 206 (EDNY 1999). Murray v The Schooner Charming Betsy, 6 US 64 at 118 (1804).

BOOKS Anthony A D’amato, The Concept of Custom in International Law (New York: Cornell

University Press, 1971).

  11A  –  Page  viii  

Stephen McCaffrey, The Law of International Watercourses (New York: Oxford University Press, 2001).

ESSAYS, ARTICLES AND JOURNALS

Bryan Lonegan, “American Diaspora: The Deportation of Lawful Residents from the United

States and the Destruction of their families” (2007) 32 NYU Rev L & Soc Change 55. David B Thronson, “Kids Will Be Kids? Reconsidering Conceptions of Children's Rights

Underlying Immigration Law” (2002) 63 Ohio St LJ 979.

Erica Stief, “Impractical Relief and the Innocent Victims: How United States Immigration Law Ignores the Rights of Citizen Children” (2010) 79 UMKC L Rev 477.

Julio Barberis, “The Development of International Law of Transboundary Groundwater” (1991)

31 Nat Resources J 167. Joseph Dellapenna, “The Customary International Law of Transboundary Freshwaters” (2001) 1

Int J Global Environmental Issues 264. Joseph Dellapenna, “The North American Great Lakes” in Stephen McCaffrey & Joyeeta Gupta,

eds, The Evolution of the Law and Politics of Water (2009), 281. Gabriel Eckstein, “Application of International Water Law to Transboundary Ground Water

Resources, and the Slovak-Hungarian Dispute Over Gabcikovo-Nagymaros” 19 Suffolk Transnat’l L Rev 67 at 92.

Stephen McCaffrey , “Of Paradoxes, Precedents, and Progeny” in Rebecca M Bratspies & Russel

A Miller, eds, Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration (2006), 34.

MISCELLANEOUS Applicability of Article VI, Section 22, of Convention on Privileges & Immunities of United

Nations, Advisory Opinion, [1989] ICJ Rep 177. House of Commons Debates, 11th Parl, 3rd Sess, Vol 1, (6 December 1910). US, Estimates of the Unauthorized Immigrant Population Residing in the United States: January

2012 (DHS Office of Immigration Statistics: Policy Directorate, 2013) at 4.

  11A  –  Page  ix  

JURISDICTIONAL STATEMENT

This case has been jointly submitted by Canada (Applicant) and the United States of

America (Respondent) under the International Court of Justice’s (ICJ) ad hoc jurisdiction

pursuant to Article 36(1) of the ICJ Statute. In accordance with Articles 26-28 of the ICJ’s

Statute, and following the precedent of the Canada-U.S. Gulf of Maine Case, the two sides have

agreed that the case will be referred to a “special chamber” of the ICJ, consisting of three judges.

This Compromis reflects the agreed facts as negotiated by the Parties.

Both the Applicant and the Respondent agree that all standing and exhaustion

requirements are met for the Court to proceed to the merits of this case. They have expressly

agreed that no part of these matters may be heard or determined by the International Joint

Commission. The Applicant and the Respondent further agree that the ICJ is a proper venue for

resolving the above questions and neither party objects to the deportation issue and the

groundwater issue being litigated together in this single case. In addition, the Applicant and the

Respondent have agreed to take no further action to enforce their positions with respect to this

dispute pending the outcome of this case. Finally, both Parties have agreed to fully and

immediately implement whatever decision the ICJ renders in this case.

  11A  –  Page  x  

QUESTIONS PRESENTED

The Applicant respectfully requests this Court to determine the following:

I. Did the U.S. federal officials’ decision to deport Bill and Lucinda Newton, without

considering their connection with their U.S.-born son, constitute a violation of international law for which the United States is responsible?

II. Did the Ontario government’s approval of groundwater removals at the HBC plant at Vandal Lake constitute a violation of international law?

  11A  –  Page  xi  

STATEMENT OF FACTS

Facts concerning the deportation of Bill and Lucinda Newton

In 2006, Bill Newton and his wife, Lucinda, left Canada by car and took a road trip to

Southern California.1 Both Bill and Lucinda are Canadian citizens, and the trip was to be part of

their honeymoon.2 Upon arriving at the Canada/U.S. border they informed the U.S. Customs

Officer that they were on their honeymoon, and they were subsequently allowed into the U.S.

without further inspection, verification of documents, or direction.3 The U.S. Customs Officer

simply assumed that the young Canadians would return to Canada within the usual 6-month

status period.4

However, upon arriving in Southern California, the Newtons quickly decided that they

wanted to stay; the good weather and thriving local economy made it seem like an ideal place to

begin a life together.5 They lived and worked in the San Diego area, Bill as a self-employed

carpenter and Lucinda in a variety of service industry jobs for which she was paid under the

table.6 After living in a series of temporary accommodations, the Newtons managed to rent an

apartment in Chula Vista in April 2009.7 They also met a wide group of friends in the area, and

in August 2009, they had a son together, Ken.8 Ken Newton is thus a U.S. citizen by birth, and

                                                                                                               1 Compromis Between Canada (Applicant) and the United States of America (Respondent) to Submit to the International Court of Justice Their Differences Regarding the Newtons and the approval of the HBC Facility at para 2 [Compromis]. 2 Ibid. 3 Ibid. 4 Ibid. 5 Ibid ¶ 3. 6 Ibid ¶ 4,5. 7 Ibid ¶ 4. 8 Id. ¶ 5,6.

  11A  –  Page  xii  

his parents believed that they would be safe to live in the U.S. because of this fact.9 They

considered themselves to be naturalized Americans, and they enrolled Ken in kindergarten at a

public school in Chula Vista in September 2012.10 Bill and Lucinda’s past life in Canada began

seem like a faraway memory, and they did not renew their Canadian passports.11

On November 4, 2013, officials from the U.S. Immigration and Customs Enforcement

(ICE) knocked at the door of the Newtons’ apartment after receiving a tip from an undisclosed

source that illegal aliens were living at that location.12 When Lucinda opened the door, the

officials immediately stepped inside and interrogated Lucinda about her status in the U.S.13

Lucinda admitted that she had no legal permission to reside in the U.S., and was instantly

charged with several breaches of U.S. immigration law and handcuffed, as was Bill when he

came home from work several minutes later and made the same admission.14 At the time, neither

Bill nor Lucinda mentioned their son to the officials out of fear that his status in the U.S. would

be jeopardized.15

Bill and Lucinda were denied any opportunity to contact Canadian diplomatic

representatives and were held in detention facilities until January 24, 2014, at which time they

were put in front of a federal immigration judge who ordered them deported.16 The Newtons had

no legal representation at the time of the judge’s order and did not appeal the decision since they

                                                                                                               9 Ibid ¶ 6. 10 Ibid ¶ 6, 7. 11 Ibid ¶ 6. 12 Ibid ¶ 8. 13 Ibid. 14 Ibid. 15 Ibid. 16 Ibid. ¶ 9.

  11A  –  Page  xiii  

were unfamiliar with U.S. law.17 Their deportation order permanently excluded them from

returning to the U.S.18

When it became clear that Ken’s parents were not coming to pick him from kindergarten

on the day of their apprehension, Ken was turned over to the San Diego Police by kindergarten

authorities.19 He was then transferred into foster care with a childless couple in the San Diego

area, who made a formal application to adopt him in June 2014.20 Adoption would end Bill and

Lucinda’s parental rights over Ken, and despite many distressed calls to the San Diego

Children’s Aid Society, the Newton parents were unable to learn his fate.21 The State of

California did not appoint a lawyer to represent the Newtons in this matter given that they had

already been deported.22

Facts concerning the legality of the approval of the HBC Facility

On October 10, 2012 the Government of Ontario approved the construction of the Huron

Bottling Company bottling facility (“HBC Facility”). The HBC Facility is to be constructed on

the shores of Vandal Lake, which is 50km north of Sault Saint Marie, Ontario.23 The business

plan of the HBC Facility is to remove groundwater from the Vandal Aquifer, which is located

                                                                                                               17 Ibid. 18 Ibid ¶ 11. 19 Ibid ¶ 12. 20 Ibid ¶ 13. 21 Ibid. 22 Ibid. 23 Ibid ¶ 15.

  11A  –  Page  xiv  

entirely within Canada. Vandal Aquifer is linked at certain points to underground channels that

at some point empty into Lake Superior.24

In considering the impact of the HBC Facility, officials from the Ontario Ministry of the

Environment have concluded that the withdrawals of groundwater would cause no significant

harm to the local drainage basin as the area is rich in water resources. Using their discretionary

powers, the Ministry of the Environment decided to exempt the project under the Ontario

Environmental Assessment Act.25

The aim of the HBC Facility is to use the groundwater from the Vandal Aquifer for the

production of various bottled beverages. It is estimated that over 90% of the products bottled at

the HBC Facility will be marketed outside of Ontario and other Great Lakes provinces and states.

The HBC products will burnish the image of northern Ontario as a good place to invest and do

business. Additionally, the HBC Facility is projected to employ over 15,000 local people. In

many ways the HBC facility’s presence on Vandal Lake is likely to bring new opportunities and

transform Sault Ste. Marie, which in recent years has suffered from high unemployment and a

fading downtown.26

                                                                                                               24 Ibid ¶ 17. 25 Ibid ¶ 18. 26 Ibid ¶ 15.  

  11A  –  Page  1  

SUMMARY OF ARGUMENT

Conceptually, the very notion of mandatory deportation violates the ideals and rationale

behind multiple international covenants and customary law. Moreover, the deportation in this

case separated a family and caused irreparable damage in contravention of well-established

international human rights.

Firstly, mandatory deportation violates children’s rights because it necessarily disregards

a consideration of the child’s best interests. Secondly, mandatory deportation contravenes the

right to family unity as it precludes the ability to balance considerations of family separation

with state sovereignty. Thirdly, mandatory deportation is impermissible national origin

discrimination given that it separates families in a discriminatory manner on the basis of the

nationality. Thus, the Applicant submits that the deportation of Bill and Lucinda Newton was a

violation of international law.

The Applicant also submits that the Ontario government’s approval of the HBC Facility

was not a violation of international law. The use of tributary aquifers has been explicitly and

implicitly excluded from triggering international liability in treaties between Canada and the

United States. The Applicant further submits that there was no obligation under customary

international law to communicate the proposed withdrawals to the United States. If such a duty is

found to be applicable in this circumstance, the Applicant submits that the HBC Facility’s

proposed activities are not onerous enough to place Canada in breach of said duty. Finally, the

Applicant submits that there is no source of international law that mandates the equitable and

reasonable use of tributary aquifers in this circumstance. Even if such an obligation is required

here, it is submitted that the approval of the HBC Facility was not in violation thereof.

  11A  –  Page  2  

ARGUMENT

I. THE US FEDERAL OFFICIALS’ DECISION TO DEPORT BILL AND LUCINDA NEWTON, WITHOUT CONSIDERING THEIR CONNECTION WITH THEIR US-BORN SON, CONSTITUTES A VIOLATION OF INTERNATIONAL LAW FOR WHICH THE UNITED STATES IS RESPONSIBLE A. MANDATORY DEPORTATION VIOLATES CHILDREN’S RIGHTS

1. Mandatory Deportation Contravenes The Child’s Right to Have His or Her Best Interests Considered

i. Mandatory Deportation’s Preclusion of the Child’s Best Interests is Contrary to the U.N. Convention on the Rights of the Child

Multiple international covenants have established that in all proceedings regarding

children, including deportation proceedings, the best interests of the child must be taken into

account. The ‘best interests’ standard was brought into international law as a concept under the

UN Declaration on the Rights of the Child (‘Declaration’), which stated that “the best interests

of the child shall be the paramount consideration” when developing laws that affect children.27

30 years subsequent to the Declaration, the U.N. codified the principle in the Convention on the

Rights of the Child (‘CRC’). Article 3(1) states: “in all actions concerning children, whether

undertaken by public or private social welfare institutions, courts of law, administrative

authorities or legislative bodies, the best interests of the child shall be a primary consideration.”28

Thus, the Convention formalized the longstanding ideas of the Declaration, and it is now

the most universally adopted of all human rights charters.29 The Applicant respectfully submits

that mandatory deportation violates the best interests of the child in contravention of this well-

established international standard. While the extent to which the separation of a child from                                                                                                                27 G.A. Res. 1386 (XIV), UNGAOR, Supp No 16, UN Doc A/4354 (1959). 28 Convention on the Rights of the Child, 20 November 1989, 28 ILM 1448 (entered into force 2 September 1990) [CRC]. 29 David B Thronson, “Kids Will Be Kids? Reconsidering Conceptions of Children's Rights Underlying Immigration Law” (2002) 63 Ohio St LJ 979 at 980.

  11A  –  Page  3  

his/her parents affects said child’s interests may be debated, mandatory deportation precludes the

mere consideration of these interests.

The best interests standard is further contextualized throughout the CRC, as it is

frequently referred to along with the other basic rights stipulated by the Convention. For

instance, Article 9 states that if a child is separated from one or both parents, regardless of the

reason, the child has a right to maintain direct contact with his or her parents unless contrary to

the child's best interests.30 In this case, Ken Newton has been denied any form of contact, and

his parents may soon lose parental rights over him due to the lack of concern shown for children

by U.S. immigration laws. This lack of concern is exemplified both procedurally (i.e. through

provisions allowing for summary deportation with no regard for children) and substantively (i.e.

through the ICE officials’ carelessness in checking with the Newton parents about a child).

Article 9 further states that a child must not be separated from his or her parents against

the child’s will “except when competent authorities subject to judicial review determine, in

accordance with applicable law and procedures, that such separation is necessary for the best

interests of the child.” The use of the phrase “applicable law and procedures” has been

interpreted to imply that states have an obligation to create laws and procedures governing

parent/child separation; 31 an obligation that is disregarded by mandatory deportation.

Furthermore, the call for “competent authorities” infers that countries must have certain

authorities that are adept decision makers in the realm of parent/child separation.32 Under U.S.

immigration laws, no authorities have been designated to consider the best interests of the child

                                                                                                               30 Supra note 2, art 9(3) [emphasis added]. 31 Erica Stief, “Impractical Relief and the Innocent Victims: How United States Immigration Law Ignores the Rights of Citizen Children” (2010) 79 UMKC L Rev 477 at 493. 32 Ibid.

  11A  –  Page  4  

in removal proceedings.33 Moreover, the Committee on the Rights of the Child has further

bolstered the U.N.’s commitment to upholding the best interests of the child as a principle of

international law by way of a 2013 General Comment on the CRC.34 The Comment explains that

if a decision has the potential to separate parent and child, “it is indispensable to carry out the

assessment and determination of the child’s best interests.”35 The comment further notes that

parent/child separation is only allowable as a last resort, not simply as an automatic consequence

of a state’s immigration laws:

“given the gravity of the impact on the child of separation from his or her parents, such separation should only occur as a last resort measure, as when the child is in danger of experiencing imminent harm or when otherwise necessary; separation should not take place if less intrusive measures could protect the child.”36 As with previous examples, the very concept of mandatory deportation undermines the

principles of the CRC as interpreted by the U.N.; the separation of parent and child is not

sanctioned as a last-resort measure, but is a potential consequence every time a mandatory

deportation order affecting a family is fulfilled. While the U.S. has not yet ratified the CRC

(joining Somalia and South Sudan as the only other countries who have yet to do so), it signed in

1995, thereby committing to an obligation to refrain, in good faith, from acts that would defeat

the object and the purpose of the treaty.37 Moreover, international treaties may impose binding

customary obligations on nonparty states so long as they constitute the recognized practice of

                                                                                                               33 8 USC §§ 1101-1537 (2006). 34 Committee on the Rights of the Child, General Comment No 14, CRC/C/GC/14, 62nd Sess (2013) at 14 [General Comment 14]. 35 Ibid [emphasis added]. 36 Ibid. 37 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331 art 18 [Vienna Convention].

  11A  –  Page  5  

states.38 The right of a child to have his or her best interests considered in proceedings affecting

him or her is demonstrated around the world, and U.S. domestic practices routinely demonstrate

a commitment to it (e.g. through child custody laws). Yet mandatory deportation turns these

severe separations into mere causal consequences of U.S. immigration law procedure, with no

consideration as to the gravity of the situation at hand. Therefore, mandatory deportation

impermissibly violates the best interests of the child standard.

ii. Mandatory Deportation’s Preclusion of the Child’s Best Interests is Contrary to the European Convention on Human Rights, the American Convention on Human Rights, the International Covenant on Civil and Political Rights, and International Custom

While the phrase ‘best interests’ is most deliberately articulated in relation to children’s

rights in the CRC, multiple other international covenants declare a commitment to the protection

of the child’s best interests as a fundamental human right. As previously mentioned,

international treaties may bind parties outside their explicit scope when they reflect the

customary international practice of states, and virtually the entire world outside of the United

States has agreed that the best interests of children must be considered in proceedings affecting

them. Furthermore, the U.S. Supreme Court has established that disregarding international

customary law when creating and interpreting legislation is impermissible.39

The European Convention on Human Rights (‘ECHR’) has been interpreted by the

European Court of Human Rights to mean that the State must consider that “the mutual

enjoyment by parent and child of each other's company constitutes a fundamental element of

                                                                                                               38 Anthony A D’amato, The Concept of Custom in International Law (New York: Cornell University Press, 1971). 39 Murray v The Schooner Charming Betsy, 6 US 64 at 118 (1804).

  11A  –  Page  6  

family life” and that “domestic measures hindering such enjoyment amount to an interference

with the rights” protected by the Convention.40

Furthermore, the American Convention on Human Rights (‘ACHR’) has a distinct

provision (article 19) on the rights of the child: “every minor child has the right to the measures

of protection required by his condition as a minor on the part of his family, society, and the

state.”41 This article of prime importance, as it is listed among those that may not be suspended

in time of war, public danger, or other emergency.42 Moreover, a contextual reading of the

ACHR shows that the ‘protection of children’ clause referred to above includes a consideration of

their best interests, as article 17(4) states that provision of a child’s protection must be made

“solely on the basis of their best interests” when a marriage is dissolved.43 The dissolution of a

marriage is analogous to the case at hand in the sense that both involve the potential separation

of parent and child (albeit to a different degree). If a child’s best interests must be considered

when assessing the extent of his or her separation from a soon-to-be divorced parent, it would be

unreasonable to suggest that these interests need not be considered in the face of permanent

separation resulting from a parent’s deportation. Yet that is precisely what the practice of

mandatory deportation does.

Finally, the International Covenant on Civil and Political Rights (‘ICCPR’) article 24(1)

states: “every child shall have…the right to such measures of protection as are required by his

status as a minor, on the part of his family, society and the State.” Indisputably, the separation of

families through deportation does not “protect” children. A 2004 study of the effects of Illegal

                                                                                                               40 Johansen v. Norway, No 17383/90 [1996] III ECHR 966, 23 EHRR 33. 41 OAS, American Convention on Human Rights, OR OEA Doc. 36 (1969) art 19. 42 Ibid art 27(2). 43 Ibid art 17(4).

  11A  –  Page  7  

Immigration Reform and Immigrant Responsibility Act (‘IIRAIRA’; the act that gives legislative

effect to mandatory deportation in the U.S.) on affected families found that seventy percent of

participants showed signs of Post-Traumatic Stress Disorder including “hopelessness, sadness,

shock, and fear.”44

Thus, multiple international covenants and interpretations of these covenants establish

that the best interests of the child must be considered in proceedings affecting that child.

Mandatory deportation precludes such consideration. Therefore, the lack of concern for the

child’s best interests which results from U.S. immigration laws does not meet basic international

children’s rights standards.

2. Mandatory Deportation Precludes the Child’s Right to be Heard A necessary corollary of considering the best interests of children is that those interests

must have an opportunity to be heard in the first place. The Committee on the Rights of the

Child recognized this and has affirmed that in any action affecting the child’s interests, including

deportation proceedings, “the child shall in particular be provided the opportunity to be heard . . .

either directly, or through a representative or an appropriate body, in a manner consistent with

the procedural rules of national law.”45 Mandatory deportation takes away any chance of the

child being heard and denies children their right to voice their concerns. Therefore, the

Applicant submits that mandatory deportation violates children’s rights.

B. MANDATORY DEPORTATION VIOLATES THE RIGHT TO FAMILY UNITY AND IS THEREFORE IMPERMISSIBLE

                                                                                                               44 Bryan Lonegan, “American Diaspora: The Deportation of Lawful Residents from the United States and the Destruction of their families” (2007) 32 NYU Rev L & Soc Change 55 at 72. 45 General Comment 14, supra note 32.

  11A  –  Page  8  

1. Family Unity is a Well-Established Right Under International Law that must be balanced with the Goals of Domestic Immigration Policy

i. Multiple International Covenants have established the Right to Family Unity

Protections for families under International Law are stipulated throughout a number of

fundamental covenants. Many provisions on this subject are grounded in the basic assumption

that the family unit is a central and essential aspect of humanity. For example, the ICCPR states:

“the family is the natural and fundamental group unit of society and is entitled to protection by

society and the State,” and “no one shall be subjected to arbitrary or unlawful interference with

his privacy, family, home or correspondence...”46 These provisions were derived from the

Universal Declaration of Human Rights (‘UDHR’)47 (article 16(3)), which represented the

contextual background to the ICCPR and serves as customary international law. Furthermore,

the International Covenant on Economic, Social, and Cultural Rights (‘ICESCR’) stipulates that

“the widest possible protection and assistance should be accorded to the family, which is the

natural and fundamental group unit of society, particularly for its establishment and while it is

responsible for the care and education of dependent children.”48 While the U.S. has yet to ratify

the ICESCR, the covenant’s principles are reflected throughout customary international practices,

and are vital to the most basic U.S. institutions. For instance, United States tax policy has long

reflected the principle that the family is a fundamental unit of society, and offers fiscal

advantages and protections to taxpayers who establish a family (e.g. child tax credits, income

splitting measures between spouses etc.).

                                                                                                               46 International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 arts 17 and 23 (entered into force 23 March 1976) [ICCPR]. 47 Universal Declaration of Human Rights, G.A. Res. 217A (III), UNGAOR, 3rd Sess, UN Doc A/810 (1948) 71. 48 International Covenant on Economic, Social, and Cultural Rights, 16 December 1966, 993 UNTS 3 art 10 (entered into force 3 January 1976) [ICESCR].

  11A  –  Page  9  

The ICCPR's Human Rights Committee further explained that the right to family

protection implied the family's right to reproduce and live together:

“The possibility to live together implies the adoption of appropriate measures [by the State], both at the internal level and as the case may be, in cooperation with other States, to ensure the unity or reunification of families, particularly when their members are separated for political, economic or similar reasons.”49

Moreover, in an advisory opinion this court has held that the UDHR’s basic principle of

family unity serves as “a concrete expression of an established principle of human rights in the

modern law of nations, [which] has been similarly expressed in other international law

instruments.”50 For instance, the ECHR provides in Article 8, paragraph 1: “Everyone has the

right to respect for his private and family life, his home and his correspondence.”51 As shown

below, the European Court of Human Rights has interpreted the phrase “respect for private and

family life” to encompass the notion of family unity. Therefore, the right to family unity is well

established by multiple international covenants.

ii. Case Law has established the Balancing Test as a Necessary Component of Deportation Proceedings, and Mandatory Deportation Precludes this Test

However, many of the aforementioned covenants contain a seemingly inherent conflict;

while family unity is articulated as a fundamental human right, states are also given the right to

exercise their sovereignty in regulating immigration (see e.g. Articles 12 and 13 of the ICCPR).

Recognizing that both family unity and the state’s ability to control deportation proceedings

affecting its territory are important social aims, international case law has applied a balancing

test with respect to these factors.

                                                                                                               49 Human Rights Committee, General Comment No 19, UN Doc HRI/GEN/1/Rev 1, 39th Sess (1994). 50 Applicability of Article VI, Section 22, of Convention on Privileges & Immunities of United Nations, Advisory Opinion, [1989] ICJ Rep 177 at 211. 51  Ibid.    

  11A  –  Page  10  

In Winata v. Australia, the U.N. Human Rights Committee held that the decision to

deport from Australia the parents of a thirteen-year-old child who was allowed to remain there

could constitute “interference in family life” in contravention of Article 17(1).52 The parents had

resided in Australia for 14 years, and their son was born and raised there.53 The Committee held

that Australia had to produce greater justification for the proposed deportation of the parents than

“a simple enforcement of its immigration law in order to avoid a characterization of

arbitrariness.”54 While it was acknowledged that states are entitled to a wide discretion in

enforcing their immigration laws, the Committee noted that this power was not unlimited.55 It

was found that under the circumstances of the case, where “substantial changes to long–settled

family life would follow” from the deportation decision, consideration of the interference into

family life was necessary.56 The court applied a balancing of the government’s interests in

enforcing its immigration policies and preventing residencies based solely on procreation with

the family’s interest in remaining together.57 Ultimately, the Committee found a breach of

family unity as per Articles 17(1) and 23(1) of the ICCPR.58

The European Court of Human Rights has also recognized this balancing test. In

Berrehab v. Netherlands, the court found that a father’s deportation based on his immigration

                                                                                                               52 IHRL 1682, UNHRC, 2001, UN Doc CCPR/C/72/D/930/2000. 53 Ibid. 54 Ibid. 55 Ibid. 56 Ibid. 57 Ibid. 58 Ibid.

  11A  –  Page  11  

status was not lawful after balancing family considerations with government interests.59 The

court found that the government had a legitimate interest in preserving the country’s economic

well-being by regulating an overpopulated labour market (the father had been working in the

Netherlands), but that that the father also had a legitimate interest to continue to develop a

relationship with his daughter.60 The father visited his daughter multiple times every week and

also financed her education. Having considered all the circumstances of the case, the court

found that “a proper balance was not achieved between the interests involved and that there was

therefore a disproportion between the means employed and the legitimate aim pursued.”61 Thus

the Court ruled that the deportation was in violation of the ECHR.62

Likewise, in Ciliz v. Netherlands, the Court held that a father's rights to a family life were

violated by his immigration-related exclusion from the country during proceedings concerning

custody of his son and visitation rights.63 The court once again balanced the state's economic

interests in controlling immigration with the father’s family interests. It concluded that “the

respondent State had failed to strike a fair balance between the interest of the applicant and his

son in continued contact and the general interest of the economic well-being of the country”

because Mr. Ciliz was excluded from critical custody proceedings concerning access to his son.64

                                                                                                               59 (1988), 138 ECHR 15, 11 EHRR 322. 60 Ibid. 61 Ibid. 62 Ibid. 63 No 29192/95, [2000] VII ECHR 267, 2 FLR 469. 64 Ibid.

  11A  –  Page  12  

Therefore, the Court found a violation of the ECHR and ordered the government to pay

damages.65

Mandatory deportation precludes the balancing of state interests and family unity that all

of the above decisions have considered as a necessary component of immigration proceedings

involving families. When a parent is summarily deported as a result of his or her immigration

status, their status as a parent becomes irrelevant, as do any effects of their parenthood (e.g. the

upbringing of their child in a stable environment, the emotional impacts of separation from their

child, the economic consequences of separation etc.). Moreover, mandatory deportation also

precludes a fair assessment of the state’s interest in deporting the individual in question. With no

opportunity to show cause for the deportation beyond the blanket procedural immigration

violation, states need not consider whether the deportation actually served the economic and

social goals underlying their immigration policies.

Even within the U.S., courts have realized that mandatory deportation constitutes an

egregious violation of the international right to family unity. In the New York District Court

case of Beharry v. Reno, Judge Jack B. Weinstein stated that mandatory deportation “violates the

ICCPR's guarantee against arbitrary interference with one's family,” thus expressly showing a

concern for this violation of international law.66 Moreover, in Maria v. McElroy, Judge

Weinstein further stated that “the ICCPR prevents a nation from separating families in a manner

that, while in accordance with its domestic law, is nonetheless unreasonable and in conflict with

the underlying provisions of the ICCPR.”67

                                                                                                               65 Ibid. 66 Beharry v Reno, 183 F Supp (2d) 584 at 602 (EDNY 2002). 67 Maria v McElroy, 68 F Supp (2d) 206 at 232 (EDNY 1999).

  11A  –  Page  13  

In the case at hand, the Newton family was not only split up in violation of international

law, the fall-out from the parents’ deportation has led to a wholly unreasonable continuation of

this separation. Ken Newton has been placed in foster care and his parents have been unable to

establish contact with him. These are outlandish results that violate the human right to family

unity, yet the practice of mandatory deportation transforms them into mere procedural effects of

U.S. immigration law. Therefore, the Applicant submits that mandatory deportation constitutes a

violation of family unity under international law, and is impermissible.

C. MANDATORY DEPORTATION WAS IMPERMISSIBLE NATIONAL ORIGIN DISCRIMINATION

Many of the previously mentioned international pronouncements contain provisions that

prohibit discrimination on the basis of national origin. The UDHR states: “No distinction shall

be made on the basis of the political, jurisdictional, or international status of the country or

territory to which a person belongs, whether it be independent, trust, non-self-governing, or

under any other limitation of sovereignty.”68

Moreover, all rights in the CRC and ICCPR are contextualized by provisions which make

clear that they must be respected by states “without distinction of any kind, such as … national

…origin”69 of the child or parent.70 The ICCPR “gives aliens all the protection regarding rights

guaranteed therein, and its requirements should be observed by States parties in their legislation

and in practice as appropriate.”71 The ICCPR does not stipulate a right for immigrants to enter

                                                                                                               68 Universal Declaration of Human Rights, G.A. Res. 217A (III), UNGAOR, 3rd Sess, UN Doc A/810 (1948) 71 art 2. 69 ICCPR, supra note 44 art 2(1); see also art 24. 70 CRC, supra note 26 art 2(1). 71 Human Rights Committee, General Comment No 15, UN Doc HRI/GEN/1/Rev 1, 39th Sess (1994) para 4.  

  11A  –  Page  14  

and reside in a country as an alien, but the Human Rights Committee has observed in General

Comment 15 that “an alien may enjoy the protection of the [ICCPR] even in relation to entry or

residence,” under certain circumstances such as discrimination and familiy rights.72 General

Comment 15 goes on to state: “In general, the rights set forth in the Covenant apply to everyone,

irrespective of reciprocity, and irrespective of his or her nationality or statelessness. Thus, the

general rule is that each one of the rights of the Covenant must be guaranteed without

discrimination between citizens and alien.”73

Mandatory deportation constitutes impermissible national origin discrimination in two

ways. Firstly, when children are separated from a parent who is an immigrant on the basis of

summary deportation, these children are discriminated against when compared with their peers

who have parents that are naturalized citizens. As mentioned above, the CRC and ICCPR both

recognize that each child has the right to the protection of the family, without regard to the

parent’s national origin. The CRC also requires that states “include measures to prevent

separation” of parents and children.74 Many domestic laws give wide-reaching protections to

children whose parents are citizens before those children may be separated from their parents.

Yet mandatory deportation laws afford the children of non-citizens no procedural protections or

“best interests” considerations before the parent is separated from the child.

Secondly, on a practical level many countries experience uneven immigration flow

patterns, in that the majority of immigrants come from the same general areas. In the U.S., for

example, an estimated 8.9 million (78 percent) of the total 11.4 million unauthorized immigrants

                                                                                                               72 Ibid at para 5. 73 Ibid. 74 Committee on the Rights of the Child, General Comment No 6, UN Doc No CRC/GC/2005/6, 39th Sess (2005) para 13.

  11A  –  Page  15  

living in the United States in 2012 were from North America.75 While immigrants of Mexican

nationality made up the majority of this group (an estimated 6.7 million),76 the number of

Canadians living outside of residency requirements in the United States cannot be overlooked.

As shown in this case, Canada and the U.S. have a relatively open border and the severity and

complexity of mandatory immigration laws are not readily understood by all members of the

population. The consequence of mandatory deportation relating to these factors is that families

of Canadian origin in the United States are being given a lesser standard of protection with

regard to family unity and the rights of children. Thus, the Applicant submits that mandatory

deportation constitutes impermissible national origin discrimination.

II. THE ONTARIO GOVERNMENT’S APPROVAL OF GROUNDWATER REMOVALS AT THE HBC PLANT AT VANDAL LAKE DOES NOT CONSTITUTE A VIOLATION OF INTERNATIONAL LAW The Applicant respectfully submits that the approval of the HBC Facility was not a

violation of international law. Canada has a great respect for the integrity and sustainability of

shared water resources and continues to cooperate with the United States in that regard. Similar

historic cooperation has led to the establishment of binding international treaties which should

govern the resolution of this dispute.

A. THE GROUNDWATER IN QUESTION IS ENTIRELY WITHIN CANADA AND NOT SUBJECT TO INTERNATIONAL LAW

The groundwater in question is considered “tributary” in that it is indirectly linked to

transboundary water by various underground channels. It is the Applicant’s position that the

inclusion of tributary groundwater within the definition of “transboundary watercourses” is not a

                                                                                                               75 US, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2012 (DHS Office of Immigration Statistics: Policy Directorate, 2013) at 4. 76 Ibid.  

  11A  –  Page  16  

general state practice. Canada and the United States have explicitly rejected this practice through

the enactment of the Boundary Waters Treaty of 190977 (“BWT”) and the Great Lakes Water

Quality Agreement78 (“Great Lakes Agreement”). Consequently, the activities of the HBC =

Facility should not attract international legal liability. Even if tributary groundwater is included

within customary international law, the Applicant submits that the treaty framework between

Canada and the United States is lex specialis and should therefore govern the dispute.

1) Treaties between Canada and the United States exclude tributary aquifers from triggering international legal obligations

An overview of the relevant binding treaties between Canada and the United States reveals

that the use of tributary aquifers has been expressly excluded from attracting international

liability. Article 38 of the Statute of the Statute of the International Court of Justice provides that

in determining disputes the Court shall consider “international conventions, whether general or

particular, establishing rules expressly recognized by the contesting States.”79 Respect for these

conventions is founded on the principle of sovereign equality between states, which create

treaties to form standardized relationships by acknowledging the laws they consider to be

                                                                                                               77  Treaty Between Great Britain and the United States relating to Boundary Waters and Questions Arising between the United States and Canada, 11 January 1909, 36 US Stat 2448, UKTS 1910 No 23. [BWT].  78 Great Lakes Water Quality Agreement of 1972, 15 April 1972, United States and Canada, 23 UST 301, (Protocol Amending the Agreement Between Canada and the United States of America on Great Lakes Water Quality, 1978, as Amended on October 16, 1983, on November 18, 1987, and on September 7, 2012) [Great Lakes Agreement]. 79 Statute of the International Court of Justice, 26 June 1945, 1155 UNTS 331, TS No 933, Article 38(1)(a) [ICJ Statute].

  11A  –  Page  17  

binding.80 Consequently, it is important that these treaties be interpreted in good faith and “in

light of [their] object and purpose” pursuant to the Vienna Convention on the Law of Treaties.81

The purpose of the BWT was to create a system for the joint management of transnational

boundary waters. The intended scope of this treaty is clearly laid out in the Preliminary Article:

For the purpose of this treaty 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 the 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.82

It is evident that neither state intended for tributary surface and groundwater to be the

subject of legal scrutiny or obligation.83

The Great Lakes Agreement also excludes tributary aquifers from the regulatory

framework of transboundary watercourses. Although “tributary waters” are included within the

scope of the Great Lakes Agreement, Article 1(i) defines them as “surface waters that flow

directly or indirectly into the Waters of the Great Lakes.”84 The intentional exclusion of tributary

groundwater similarly indicates each state’s intention to prevent watercourses like the Vandal

Aquifer from being subject to international law.

2) The inclusion of tributary aquifers within the scope of transboundary watercourses is not a general practice of States

                                                                                                               80 Charter of the United Nations, 26 June 1945, Can TS 1945 No 7, Article 2(1) [UN Charter]; D’Amato, supra note 38 at 103. 81 Vienna Convention, supra note 37 art 31(2). 82 BWT, supra note 77. 83 Joseph Dellapenna, “The North American Great Lakes” in Stephen McCaffrey & Joyeeta Gupta, eds, The Evolution of the Law and Politics of Water (2009), 281 at 282. 84 Supra note 78.

  11A  –  Page  18  

Customary law forms when there is “evidence of a general practice accepted as law.”85

Implicit in this definition are two components: a) an objectively identifiable general practice of

states, and b) evidence that such practice is due to a sense of legal obligation (opinio juris).86

Given the very few number of disputes that have arisen over the usage of tributary aquifers, it is

difficult to point to a general pattern of State behavior or a corresponding opinio juris.

With that said, the 1997 Convention on the Law of the Use of Non-Navigational International

Watercourses87 (“UN Convention”) nonetheless suggests that tributary groundwater may be

subject to international law. In addition to codifying a number of practices that relate to

transboundary watercourse usage, the UN Convention significantly expanded the definition of

international watercourses to include the entire “system of surface waters and groundwaters

constituting by virtue of their physical relationship a unitary whole and normally flowing into a

common terminus.”88 This definition encompasses virtually all surface and groundwater sources

that eventually feed into a shared body of water.

Although international treaties may in some circumstances impose binding customary

obligations on nonparty states,89 it is important to note that the treaties do not achieve customary

                                                                                                               85 ICJ Statute, supra note 79, art 38(1)(b). 86 North Sea Continental Shelf Cases (Germany v Denmark; Germany v Netherlands), [1969] ICJ Rep 20 at para 72 [North Sea Continental Shelf Cases]. 87 Convention on the Law of the Non-navigational Uses of International Watercourses, 21 May 1997, UN Doc A.51/869, UNTS 869 [UN Convention].      88 Ibid, art 2(a). 89 Vienna Convention on the Law of Treaties, supra note 81 art 38.

  11A  –  Page  19  

value simply by virtue of their entry into force. Only those parts which are intended to possess a

“norm-creating character” are to be considered binding on non-parties.90

In considering whether the ‘equidistance principle’ contained in the 1958 Geneva

Convention possessed a norm-creating character, this Court considered the presence of a clause

that allowed states to deviate from its consistent use. As the ‘equidistance principle’ was only to

be followed “[i]n the absence of agreement”, the Court doubted whether the principle was

manifestly intended by the Geneva Convention to be a generalizable rule of customary law.91

Professor D’Amato argues the Court is suggesting “that any rule from which a state can

unilaterally withdraw does not rise to the level of being a legal rule of general validity.”92 When

looking at the structure of the convention, the Court also found that the general separation of the

equidistance principle from the rest of the generalizable rules signaled an implicit exclusion of

the equidistance principle from other more generalizable norms.93

Similarities in the UN Convention should preclude its definition of international

watercourses from forming a part of customary law. Paragraph 1 of Article III reads “nothing in

the present Covenant shall affect the rights or obligations of a Watercourse State arising from

agreements in force for it on the date on which it became a party to the present Convention.”94

Moreover, paragraph 2 uses permissive language to suggest that parties “may” consider

harmonizing previous agreements with the principles of the UN Convention. Therefore, Article

III essentially renders the UN Convention’s contents void when a conflicting treaty is in force.

                                                                                                               90 North Sea Continental Shelf Cases, supra note 86. 91 Ibid. 92 D’Amato, supra note 38 at 111-12. 93 North Sea Continental Shelf Cases, supra note 86 at para 63. 94 UN Convention, supra note 87 art 3.

  11A  –  Page  20  

Paragraph 4 explicitly recognizes this subordination: “[w]here a watercourse agreement is

concluded between two or more watercourse States, it shall define the waters to which it

applies.” The flexibility of the UN Convention is highly inconsistent with the intention to create

or codify customary law.

Any customary value of the UN Convention must be limited to those Articles contained

under the heading of “General Principles”. Professor McCaffrey—who aided in the drafting of

the Convention—suggests that those practices listed under “General Principles” represent the

“cornerstone” of the law in this field, while describing the remainder of the Convention as a

“framework…that may be tailored to suit the conditions of specific watercourses.”95

Given the flexible nature of the UN Convention and the sectional separation of the

definitions from the more established concepts, it seems improper to suggest that the UN

Convention’s definition of “international watercourses” carries a norm-creating character that

forms the general corpus of customary international law. If the definition suggested by the UN

Convention were to be accepted as custom, this framework would only prevent the usage of

water that is completely isolated from a transboundary watercourse system from triggering

international legal obligations. Given the complexity of hydrologic systems and the difficulty in

precisely determining the travel patterns of groundwater, the adoption of this definition could

significantly narrow the exercise of state sovereignty over natural resources.96

3) In the event that tributary aquifers are included within the customary definition of transboundary watercourses, the maxim of lex specialis requires that the relevant treaties should be given priority in governing the dispute

                                                                                                               95 Stephen McCaffrey, The Law of International Watercourses (New York: Oxford University Press, 2001) at 303. 96  Sovereignty over Natural Resources, GA Res. 1803 (XVII), 17 UN GAOR Supp (No 17) at 15, UN Doc A/5217

(Dec 14, 1962).

  11A  –  Page  21  

When two or more norms deal with the same subject matter, the maxim of lex specialis

requires that priority should be given to the norm that is more specific and concrete.97 This

principle was recognized in the Case concerning the Right of Passage over Indian Territory

(Portugal v. India):

Where therefore the Court finds a practice clearly established between two States which was accepted by the Parties as governing the relations between them, the Court must attribute decisive effect to that practice for the purpose of determining their specific rights and obligations. Such a particular practice must prevail over any general rules.98 Even if the Respondent is able to demonstrate the inclusion of tributary aquifers in

customary watercourse law, the custom should nevertheless be inapplicable in this circumstance.

As demonstrated above, the BWT and the Great Lakes Agreement are unequivocal in their intent

to exclude tributary groundwater from triggering international legal liability. The treaty

framework is sufficiently specific and established so as to constitute lex specialis.

B. THERE WAS NO OBLIGATION TO COMMUNICATE ABOUT GROUNDWATER REMOVALS IN CONNECTION WITH APPROVAL OF THE VANDAL LAKE PLANT UNDER INTENATIONAL LAW

1) If an obligation to communicate is applicable to tributary aquifers, the obligation was not triggered by the approval of the HBC Facility.

The Applicant submits that interstate communication and cooperation are guidelines for

conduct as opposed to mandatory legal obligations. However, in the event that procedural

customary obligations are applicable in this circumstance, the Applicant submits that none of

these responsibilities were triggered by the approval of the HBC Facility.

                                                                                                               97  International Law Commission, Fragmentation of international law: Difficulties arising from the diversification and expansion of international law, GA, 58 Sess, Supplement No. 10, UN Doc A/CN.4/L.702, (2006) at 7.    98  Case concerning the Right of Passage over Indian Territory (Portugal v India) [1960] ICJ Rep 6 at para 44.  

  11A  –  Page  22  

International instruments,99 jurisprudence100 and highly qualified publicists,101 each

indicate that the duty to notify and consult with other states only arises when a particular action

may cause “significant adverse effects” to the interests of other watercourse states. This

threshold was not met by the approval of the HBC Facility.

i) Procedural obligations are not triggered by the speculation of remote risk

Speculation of remote risk does not trigger international responsibility. The Articles on the

Prevention of Transboundary Harm suggests that the notion of risk assessment should be

“[viewed] objectively, as denoting an appreciation of possible harm resulting from an activity

which a properly informed observer had or ought to have had.”102 The Rio Declaration and the

UNEP Goals and Principles on Environmental Impact Assessments each require that assessments

be performed only for activities that are “likely to have a significant adverse effect.”103 Whether

the threshold for notification and consultation is “likely” or even “possible”, it is clear that

international law requires a degree of foreseeability for procedural obligations to be triggered.

In this situation, the Respondent’s concern is based on the HBC Facility’s “potential to

disturb the Great Lakes Ecosystem.”104 Their claim is unspecific and does not identify how the

groundwater removals are likely to cause significant adverse effects. This Court should not allow

                                                                                                               99 UN Convention, supra note 88 art 12. 100 Pulp Mills on the River Uruguay Case (Argentina v Uruguay), [2010] ICJ Rep 14 at 83. 101 McCaffrey, supra note 95 at 405. 102  International Law Commission, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities with commentaries, appears in Yearbook of the International Law Commission, 2001, vol 2, part 2, (New York: UN, 2001) at 151 [2001 Draft Articles]. 103  United Nations Environment Programme, Rio Declaration on Environment and Development, UN Doc A/CONF.151/26 (vol. I) (1992), Principle 17; United Nations Environment Programme, Goals and Principles of Environmental Impact Assessment, UN Doc UNEP/GC.14/17, Annex III (1987), Principle 1. 104 Compromis para 16.

  11A  –  Page  23  

general or frivolous claims based on speculative or remote possibilities to trigger procedural

duties, as riparian states would often be unfairly burdened with onerous obligations.

ii) There is no evidence indicating that the groundwater removals would have “significant adverse effects” on the Respondent’s interests

The International Law Commission has suggested that “‘significant’ [means] more than

‘detectable’…[t]he harm must lead to a real detrimental effect on matters such as, for example,

human health, industry, property, environment or agriculture in other states. Such detrimental

effects must be susceptible to being measured by factual and objective standards.”105 Criteria

used in measuring the significance of an activity can include the size of the activity, its location,

and its effects.106 While the above definition relates to “harm” rather than “adverse effects”,

similar criteria should be used in assessing the latter despite the lower threshold.107

In this circumstance, neither the size, location, nor effect of the removals from the Vandal

aquifer should trigger the duty to notify or consult. Given the abundance of water resources in

the area, it can be reasonably inferred that the removals by the HBC Facility are unlikely to

deprive others from consumptively using the resource. Moreover, nothing suggests that the

removal of a particular amount of water from the Vandal aquifer would have a corresponding

effect on watercourses that it is tributary to.

Although the “significant adverse effects” standard implies a lower threshold than the “no

significant harm” finding made by the Ministry of the Environment, there is no evidence

indicating that the effects of the HBC Facility would fall in between these two standards. Rather,

                                                                                                               105 Official Records of the General Assembly, 56th Sess, Supp No 10, UN Doc A/56/10, para. 98, the commentary to draft article 2, paras. (4) & (5). 106 United Nations Economic Commission for Europe, Convention on Environmental Impact Assessment in a Transboundary Context, 1989 UNTS 310 (entered into force Sept. 10, 1997), Appendix III(1). 107  McCaffrey, supra note 95 at 403.  

  11A  –  Page  24  

the Ministry’s decision to exempt the HBC Facility from the Environmental Assessment Act

(“EAA”)108 is indicative of a minimally impactful usage of the region’s water resources.

Section 3.2 of the EAA indicates that the Minister may exempt a project from conducting an

environmental impact assessment if “it is in the public interest to do so having regard to the

purposes of this Act”.109 The purpose of the Act is defined in section 2 as “the betterment of the

people of the whole or any part of Ontario by providing for the protection, conservation and wise

management in Ontario of the environment.”110 Taken together, it can be reasonably inferred that

the Ontario government did not believe or at least foresee the groundwater removals having any

significant adverse effect on the local watershed.

The duty to notify or consult does not crystallize when adverse effects are insignificant, or

when the risk is remote or speculative. To require that notification be performed in this instance

would significantly broaden the scope of this principle.

C. THERE WAS NO OBLIGATION OF EQUITABLE USE OF THE VANDAL

LAKE AQUIFER UNDER INTERNATIONAL LAW 1) The equitable use of tributary aquifers does not form a part of customary

international law

i) No constant, virtually uniform, or extensive State practice exists that requires the equitable use of tributary aquifers

                                                                                                               108  RSO 1990 c E-18 [EAA].  109 Ibid. 110  Ibid.

  11A  –  Page  25  

This Court held in the North Sea Continental Shelf Cases that state practice of a custom

should be “extensive and virtually uniform” to the principle being invoked.111 Similarly, the

Asylum Case (Columbia v Peru) required that such practice also be constant.112

While the general principle of equitable use of shared water resource may constitute a

principle of customary international law, there is little evidence to demonstrate a general state

practice of the equitable use of tributary aquifers. To the extent that a general practice of

imposing an equitable usage exists, it has for the most part been limited to surface waters.113

Given the complex interconnectedness of hydrological systems, expanding this practice to

include tributary groundwater would significantly narrow a state’s sovereignty over its

groundwater resources. Such a practice would be inconsistent with the current scope of the

custom.

ii. The requisite opinion juris is lacking

Even if a general state practice exists, this Court has held that “the States concerned

must…feel that they are conforming with what amounts to a legal obligation.”114 The actions of

the Applicant do not demonstrate the existence of an opinio juris. Instead, Canada has

consistently considered the provisions relating to the usage of transboundary watercourses in the

BWT to be the binding authority in such circumstances.

Canada and the United States have both adopted a treaty framework that embraces the right

to the exclusive use of resources located within state boundaries. Specifically, Article II of the

                                                                                                               111 Supra note 86 at para 74. 112 [1950] ICJ Rep 266 at 277. 113 Joseph Dellapenna, “The Customary International Law of Transboundary Freshwaters” (2001) 1 Int J Global Environmental Issues 264 at 274; See also McCaffrey, supra note 95 at 417-418. 114 North Sea Continental Shelf Cases, supra note 86 at para 77.

  11A  –  Page  26  

BWT provides that each State reserves “the exclusive jurisdiction and control over the use and

diversion…of all waters on its side of the line which in their natural channels would flow across

the boundary or into boundary waters.”115 Article II in essence provides that jurisdiction alone

should determine the use of shared water resources. Speaking to the House of Commons, Prime

Minister Wilfrid Laurier explicitly affirms the intended results of the BWT:

[T]he United States had taken the position that international law provides that, except in matters of navigation, the upper power has the right to use the water within its own territory as it thinks best…At the same time, [Canada] shall have the same power on our side, and if we choose to divert a stream that flows into [the United States] you shall have no right to complain, you shall not call upon us not to do what you do yourselves.116

While this statement in itself does not demonstrate a sense of legal obligation, it provides clear

context that establishes the intent of the Article II and the BWT: the solidarity of state

sovereignty should take priority to the integrity of another state’s resources.

Canada has remained committed to the enforcement of the treaty framework. Subsequent

to enactment of the Columbia River Treaty, Canada ensured that it’s signing of the instrument

did not indicate an abandonment of the approach laid out in Article II of the Boundary Waters

Treaty. A separate Annex ratified by Canada specifically affirms that “the [Columbia River

Treaty] does not establish any general principle or precedent applicable to waters other than

those of the Columbia river basin and does not detract from the application of the Boundary

Waters Treaty.”117 The Canadian delegation reaffirmed this position during the negotiation of the

Articles on the Law of Transboundary Aquifers in 2006, stating:

                                                                                                               115 Supra note 77. 116 House of Commons Debates, 11th Parl, 3rd Sess, Vol 1, (6 December 1910) at 911-912 (Wilfrid Laurier). 117 Canada, Department of External Affairs et al., Annex to Exchange of Notes Dated January 22, 1964 between the Governments of Canada and The United States Regarding the Columbia River Treaty, “Columbia Treaty Protocol and Related Documents”, (Ottawa: Queen’s Printers, 1964) at 114.

  11A  –  Page  27  

[T]here is a need for the draft articles to reflect the utility of alternative mechanisms and to necessarily defer to those that already exist at the bilateral or multilateral level. Indeed, given Canada’s existing effective mechanisms, it is not possible for Canada at this point to actively support the draft articles forming the basis for a multilateral convention.118

Canada continues to assert their right to exercise exclusive jurisdiction of their

natural resources, subject only to the interests of Canadians.119 The opinio juris required to

enforce the equitable usage of tributary aquifers is clearly lacking.

2) If the equitable use of tributary aquifers is a customary legal obligation, the maxim of lex specialis nonetheless requires that the treaty framework govern this dispute

In the North Sea Continental Shelf Cases, this Court noted “it is well understood that,

in practice, rules of [customary] international law can, by agreement, be derogated from in

particular cases or as between particular parties.”120 This flexibility is afforded to states out

of respect for the sovereign equality that allows them to be self determinating.121 Lex

specialis flows from this concept, providing states with an opportunity to dispense from

customary rules or general principles which are jus dispositivum, by creating

comprehensive frameworks that reflect the nature of the relationship between the parties.

As the principle of equitable use does not amount to jus cogens,122 Article II of the BWT

should be interpreted fairly and applied “in the light of its object and purpose.”123 The result of

                                                                                                               118  International Law Commission, Shared natural resources: comments and observations by Governments on the draft articles on the law of transboundary groundwaters, GA, 60 Sess, UN Doc A/CN.4/595, (2008) at para 225.  119  Supra note 96 at para 1. 120  Supra note 95 at para 72.  121  UN Charter, supra note 80.      122 McCaffrey, supra note 95 at 303.

  11A  –  Page  28  

such an interpretation is an express denial of the legal applicability of the equitable use principle

in this circumstance, and the acceptance of Article II of the BWT as binding law.

3) To the extent that the doctrine of equitable use is applicable as customary international law, the approval of the HBC Facility was not a violation thereof

The basic premise of equitable and reasonable use requires that states make use of shared

water resources in a way that allows for the fair apportionment of the benefits that the resource

provides.124 This practice recognizes the equal rights of both states to make reasonable use of the

resource provided that such use does not cause “significant harm” to other watercourse states.

Whether or not a state’s use of a water source is equitable is dependent on a variety of factors

such as social and economic needs of watercourse states, the effect of the use on other

watercourse states, and the conservation, protection and development of the resource, amongst

others.125 Being a utilitarian principle, the equitableness of a proposed activity therefore depends

on a weighing of the anticipated benefits of a project against its detrimental effects and its

potential to disproportionately deprive another state of a particular benefit.126

The extent or likelihood of any harm to the Great Lakes Ecosystem cannot be determined

from the facts available. A reliance on the Ministry’s findings indicates that the environmental

impacts, if any, are negligible. Given the abundance of water resources in the region and its

ability to support such a removal, it is unlikely that the facility can be considered an

unreasonable use of the water.

                                                                                                                                                                                                                                                                                                                                                                     123  Vienna Convention, supra note 81. 124 UN Convention, supra note 87 art 5; Julio Barberis, “The Development of International Law of Transboundary Groundwater” (1991) 31 Nat Resources J 167 at 177. 125 UN Convention, ibid art 6. 126 Gabriel Eckstein, “Application of International Water Law to Transboundary Ground Water Resources, and the Slovak-Hungarian Dispute Over Gabcikovo-Nagymaros” 19 Suffolk Transnat’l L Rev 67 at 92-93; McCaffrey, supra note 96 at 342.

  11A  –  Page  29  

From the Canadian perspective, the benefits of establishing the HBC Facility are numerous.

The addition of 15,000 jobs would help stimulate the Sault Saint Marie economy which suffers

from high unemployment. Moreover, the exportation of 90% of the products bottled at the

facility would similarly assist by providing a source of revenue. Finally, the branding of the

products acts as a marketing scheme that may attract additional investment in the region.

When considering whether the effect of an activity is sufficiently harmful so as to be

inequitable, a high threshold for state liability is necessary to achieve a balanced resolution to the

jurisdictional conflict. The sovereignty of Canada should not be restricted without clear evidence

of a significant interference with the sovereignty of the United States.127 After weighing the

minimal environmental impact that the HBC Facility may have on the Great Lakes Ecosystem

against the significant benefits it would provide to Canada, the appropriation of benefits must be

considered equitable.

CONCLUSION

The Applicant respectfully submits that the deportation of Bill and Lucinda Newton was

executed in violation of international law. Mandatory deportation removes all considerations of

proportion where real human interests are at stake; it eliminates the possibility of weighing social

and equitable factors against the blanket provision of state sovereignty. This contravenes

international law in three ways.

Firstly, mandatory deportation violates children’s rights. Children have a right to have

their best interests considered, as well as a right to be heard in all proceedings affecting them.

Secondly, mandatory deportation contravenes the right to family unity. International custom

and case law has established that this right must be balanced with the right to state sovereignty in                                                                                                                127  Stephen McCaffrey , “Of Paradoxes, Precedents, and Progeny” in Rebecca M Bratspies & Russel A Miller, eds, Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration (2006), 34 at 40.    

  11A  –  Page  30  

regulating immigration, and mandatory deportation takes away the opportunity for such a

balancing test to occur. Thirdly, mandatory deportation constitutes impermissible national origin

discrimination. When a family is separated under the context of mandatory deportation, they are

held to a lesser standard of care and protection than a wholly American family.

Canada also requests that this Court dismiss the United States’ claim concerning the

alleged violation of international law caused by the approval of the HBC Facility. The two States

enacted treaties that clearly intended to exempt water bodies like the Vandal Aquifer from the

scope of the regulatory framework. Moreover, tributary aquifers are not regulated by customary

international law. To the extent that they are, the treaty framework between the two states is lex

specialis a therefore should be given priority in resolving this dispute. Canada was under no

obligation to communicate its decision to approve the HBC Facility as there is no evidence that it

will cause any significant adverse impact to the interests of the United States. Finally, Canada

was not obligated to use the Vandal Aquifer equitably, as the equitable use of tributary

groundwater is not customary international law. Even if such an obligation existed, the approval

of the HBC Facility was not in violation thereof.