CANADA AND THE UNITED STATES: A LEGAL
FRAMEWORK FOR THE FUTURE*
Maxwell Cohen, Q.C.**
The Continental reality that links Canada and the United States,
their many-sided involvements with each other, requires a fresh
perspective on the framework for their future relations. While that
framework is essentially a political question, its jural consequences
will be significant both in themselves and as a model for bi-national
cooperation over a wide range of transcontinental questions.
If men are egocentric and nations ethnocentric, continents are
geocentric and tend to be preoccupied with their own universe. In an
older day this was called “isolationism” but since communications and
international violence, affluence and technology, color and numbers
have made us smaller, sensitive, more crowded and more intertwined
than ever before, it is not really possible to be “isolationist” although
it is quite possible to remain preoccupied with a land of one’s own.
And the North American horizon is sufficiently broad, and so central
to the world balance of military and economic power, that it is a
regional universe easily commanding an introverted interest that
global realities cannot entirely distract. Even if the continent north
of the Rio Grande were not divided between two sovereign states with
a common Britannic history there still would be regional problems of
complexity and grandeur to solve. We have these tensions between
regions within our own respective federations –
south and north in
U.S. of yesterday; Quebec and English-speaking Canada in the Cana-
dian history of today. American “separatists” lost a civil war –
ours,
it is hoped have no such plans; but if some do engage in civil strife,
they may discover that it is among the most tragic of all the struggles,
for fratricide yields in the end to numbers as do most confrontations.
Whatever one may say, therefore, the relations of our two countries,
and the political and legal framework for a common future, must
be seen through the prismatic perspectives or distortions of triple
the world scene itself; the second tier
lenses: the broadest vision –
of sight –
contemporary specialized challenges in the respective federations,
Civil Rights for the United States, Quebec and Ottawa for Canada.
the continental framework and reality; the third aspect –
* This paper is based upon an address prepared for The American Society of
International Law, Annual Dinner, Washington, D.C., Friday, 24th April, 1964.
** Professor of Law, Director of The Institute of Air and Space Law, McGill
University.
234
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[Vol. 10
To some extent it may be said that this is the first time in a gene-
ration or more, perhaps, since the great depression of the Nineteen-
Thirties that we have as our primary preoccupation a desperate sense
on the home front. Yet in a curious way that sense –
civil rights in
the United States, Quebec’s future in Canada –
have global links
that weave them with anxieties on other continents. For it is patent
that American civil rights interlaces with the problem of white and
non-white peoples everywhere and indeed, the interaction is profound
enough to make it likely that strong movements toward racial self-res-
pect elsewhere add to the drives here and conversely success here only
generates more social energies elsewhere reaching for the plane of
equality.
The parallel in Canada is equally striking. A new Quebec, suddenly
touched by a renaissance of its own, has thrown off in less than a
half a dozen years, the burdens of a self-inflicted social structure that
retarded its politics, its culture, its economic confidence, its essential
self-esteem. Confederation in Canada has always had the hard history
of reconciling French and English-speaking, “conqueror” and “con-
quered”, Catholic and Protestant, conservative nostalgia and modern
realities. The Quebec renaissance has come perhaps less from below
than from above. A new elite, dissatisfied with themselves, with the
English-speaking economic ascendency in Quebec and elsewhere, with
the powerful and penetrating role of the English-language and the
negligible command Quebec has over Canadian culture outside of
Quebec and, above all, with the sense of having been left behind in the
20th Century’s rush towards self-fulfillment –
this new elite demand-
ed a new deal for itself and in so demanding it had to reconsider what
that new deal would mean in Quebec’s relations with English-speaking
Canada. Federalism in Canada is, therefore, on trial and among the
energizing sources for Quebec’s new confidence are the visions of other
peoples in Asia and Africa less accomplished, less affluent, less linked
with the main stream of western culture, and yet able to assert their
claims to self-determination, to independence. A few years ago it
would have been unimaginable to expect a French-speaking Canadian
to say: if Ghana and Ceylon and the Congo, why not us; if they can
go it alone and present an image of a viable society, or at least
attempt to achieve one certainly we can do so, a powerful people whose
writ runs from the St. Lawrence to the Arctic circle. And so the
“unquiet revolution” in Quebec takes its cue from an unquiet world
and in that relationship Quebec and the new emerging nations are
to each other both mirror and catalyst.
There is in this global perspective one profoundly restraining
element for those who would upset the Canadian balance, and corres-
pondingly also for those who would press on, without counting the cost,
No. 3]
CANADA AND THE UNITED STATES
to effect the most rapid social changes in the United States; and these
restraining cords are the greater threats that still lie outside our
common security. The “thaw” has not yet melted the glacier that
divides East and West. Disarmament, so resistant to agreement
points every day to the abyss where thermo-nuclear weapons lie in
wait to be sprung by malice or miscalculation. While this horror is
poised above mankind, aimed in the name of ideology or vital interest,
unresolved by sustained efforts to disarm, most of mankind should
regard their homegrown crises with less than a sense of catastrophe.
For true catastrophe is the mortal cloud above and beyond our borders
should we fail to control this miraculous and fatal union of atom and
rocket that has now transformed our politics and our violence beyond
recall.
Yet even if we admit that the higher urgencies and fears are the
military-political accumulations of the past generation we cannot
avoid coming to grips with the demands of a home-front more
turbulent for Canada than it has been for almost two generations.
And this brings one to the second tier from which to view our
problems –
is this regional tier that in fact
determines
to which I shall
now address myself in an attempt to project a framework for a
common continental future.
the course of this continent and
the regional. It
That future somehow is taken for granted for the most part,
at the same time as it is occasionally the subject of irritation and a
pessimistic estimate. It is no easy matter to share a great continent
between the world’s most powerful state and one of the world’s more
sensitive neighbours, not at all “powerful”, but quite conscious of
itself and the need for an independent image. It might have been easier
if all Canada spoke French and the great wave of American language
and culture and techniques did not daily wash over that porous frontier
and threaten to erode by its force whatever cultural citadel we are
able painfully to create. Instead, Canada is for the moment a predom-
inantly English speaking country essentially shaped by United States
technology, literature, mass media, humour, values and prosperity. It
is a charming speculation to consider what would have happened if we
could have had the benefits of the neighbourhood without the mixed
pains and pleasures of a cultural-economic onslaught. The question of
a “Canadian image”, so much a part today of our domestic dialogue,
might have been more truly answered with a wholly French-speaking
Canada or with a truly bilingual Canada than with one so easily
penetrated by the persistent forces of communication.
Thus a primary continental problem for Canadians is how to have
the best that naturally flows from our geographic relationship –
McGILL LAW JOURNAL
[Vol. 10
culturally, economically and administratively –
concurrently with
the fostering of a Canada that is different from the United States,
preserving that difference for all of the irrational reasons that men
will insist on in rationalizing their preferences and the accidents
of history. This is an old problem; it really begins with the abrupt
departure of the thirteen colonies from the imperial family. Stubborn
Englishmen in North America were insisting on political equality
with stubborn Englishmen in London and from that early bourgeois
confrontation there emerged the mythology and the reality that has
blossomed into what America is today –
the leaders of the free
world (and sadly not a member of the Commonwealth ! ).
The British remnant in North America, therefore, became a kind
of permanently defensive entity. Having just conquered the French in
1763 it was necessary to make a viable, permanent peace with them
in order to secure the fragile frontier that soon was to mark off the
powerful infant state to the south from the monarchial-colonial north.
If ever boundaries were artificial those that drew lines between
British North America and the new federation of thirteen were
surely among the least defensible, militarily, economically, culturally.
From those days in the Seventeen-Seventies and Eighties to the
present time it has been one long continuing story of varieties of
accommodation between those who remained with the Crown and
those who fashioned a new kingdom of their own but now to be called
a Republic.
Elsewhere I have suggested that it is possible to discern five
distinct periods in the relations of old British North America, the
Canada of yesterday and today with the United States from romantic
independence to world supremacy: 1
“The first period I have called the “Period of Adjustment”, from the
Treaty of Paris of 1783 which concluded the American War of Independence,
down to the settlement of the Alabama Claims in the 1870’s. The preoccupation
here must be seen as part of the adjustment of the new United States to
the remnant of old British North America, now the Canada of pre-Confed-
eration and early Confederation. This adjustment was psychological, military,
territorial, and economic, and the treaties in that period deal with the great
boundary questions, pre-Revolutionary debts, fisheries, criminals, and trade,
including the great experiment of reciprocity in 1854. In essence this was
the time when British North America and the United States were feeling
their way towards answering the question as to “who gets what” on this
continent and how to determine the minimal conditions for the living together
of a burgeoning sovereign and a dawdling colony.
1 Cohen, “Canadian United States Treaty Relations, Trends and Future Prom-
lems”, in Deener, Canada-United States Treaty Relations (1963) 185.
No. 3]
CANADA AND THE UNITED STATES
237
The second period may be described as the “Period of Continental Stabiliz-
ation”, from the 1870’s down to the negotiations over the Boundary Waters
Treaty of 1909. Here the major questions of boundaries were concluded
through settling the Alaska and Passamaquoddy Bay boundaries, the wide-
ning of common control over the movement of criminals, and the first modest
ventures into some fisheries control over and above the rights acquired
under the 1818 Treaty.
The third period may be called the “Period of Common Resource Conser-
vation and Early Joint Management”, and this is the period from the Bound-
ary Waters Treaty of 1909 to the outbreak of the Second World War. It coin-
cides with the emerging independence of Canada as an international person
and as the leader of the movement from Empire to Commonwealth. It marks
the breakthrough of American power from continental to global responsi-
bilities which was to be firmly crystallized by the Second World War.
It is a period during which the network of treaty relations, covering bounda-
ry waters, fisheries, taxation, extradition, and early questions of common
defense, all pointed to such a formal intertwining of dealings with each
other as to now suggest a cautious acceptance by both countries of those
continental realities that would push them further along the road toward
the common management of their common continental concerns.
The fourth period is the “Period of Wartime Continental Cooperation”
from 1939 to 1946. Here the subject matter takes on a greater variety, the
spirit of the relations is more intimate and the involvement more complete.
Defense, trade, the common management of industrial resources for the
purposes of war-making –
are all indicative of the new dimension of mutual
reliance and interdependence. Radio and broadcasting, air transport, already
observed in prewar agreements, become almost annual additions to the list
of note exchanges. But clearly what had happened was the extension of the
notion that many of the problems of Canadian-American wartime responsi-
bility were but further projections of the idea of joint management of a
common continent, an idea already maturing in fact, if not in philosophy,
in the relations of the neighbours.
Finally, the fifth period may be called the “Period of a Maturing Continen-
tal Partnership” –
irascible but inevitable. The reaction of the postwar years
expressing itself conflictingly in Canadian resentment and Canadian reliance
is clearly evident in the broadening scope of joint action and joint responsi-
bility side by side with dramatic moments of explosive irritation. Again
the main treaty concerns are trade, defense, certain special problems of
the opening Arctic in consequence of defense, the intensity of double taxa-
tion burdens requiring special treaty treatment, and the further develop-
ment of measures to deal with fisheries, trade, boundary waters, and other
resources”.
But having an analytical perspective on these five periods is by no
means enough to satisfy the sense of administrative order that now
is demanded in the managing and sharing of the common continent.
A design for this ongoing program of continental cohabitation and
common control appears to be emerging.2
2 See Communiqu6 issued after the meeting between President Johnson and
The Honourable L. B. Pearson, Joint Committee Jan. 21-22, 50 Dept. State Bull.
199-200 (Feb. 19, 1964).
McGILL LAW JOURNAL
[Vol. 10
The fundamental principle to guide the relations of our two peoples
is already fashioned by the common continental story of the past
generations. That principle, however, may have had less recognition
in a specific way thail it deserves and it may be stated in the following
plain terms: Canada and the United States in sharing a common
continent and essentially a common culture, on the English-speaking
side at least, must undertake, in the use of the resources and the
skills of their continent, programs of economic and social development
that embrace wherever possible the essential interests of both peoples.
Now, of course, this is often easier said than done. It may be more
difficult to apply this general socio-economic standard of policy-
making for both states to economic questions than, for example, to the
more irrational defence situations. I use “irrational” advisedly
because in defence policy, considering the essential bi-polarity of
nuclear capability, the Canadian role in the defence of North America
is essentially spatial and symbolic, “Spatial” in the sense of having
both U.S.S.R. and the United States as our neighbours with our north-
ern tundra and skies a theoretical buffer, and symbolic in the sense
that we are devoted and willing partners in the common defence of
the continent but really can have no pretensions to being an authentic
military power as such.
Hence it is that the irrational component in defence policy is
likely to provide us with a nagging sense of unresolved problems,
ameliorated perhaps by the general reduction in world tensions which
may allow Canadians to move ever farther away from sharing even
modestly in the use of nuclear weapons systems. For that really is
the essence of the question for Canada and many states –
namely,
the curious phenomenon that conventional weapons are respectable
and nuclear warheads, even for “obsolete” Bomarcs, are not.
Putting aside, therefore, the delicate but declining significance of
defence policy as an irritant in U.S.-Canadian relations and for which
no statement of general principles can do much, let us turn toward
spelling out this broad socio-economic concept of common planning of
the remainder of our vital concerns.
It is possible to suggest that the main practical consequence of any
principle of continental resource and economic policy-making for the
benefit of our two countries must lead in the end to a declining
economic frontier and to administrative devices that facilitate this
decline, that manage the various fields of economic activity to our
common benefit. Indeed, by such common administration there is
effected a transmutation of political disputes over economic matters
into continuous administration, thus converting potential dispute into
the neutrality of ongoing administration.
No. 3]
CANADA AND THE UNITED STATES
There are several areas where this kind of approach already is
well established – boundary and trans-boundary rivers, Great Lakes
fisheries, high seas salmon, halibut and pelagic fishing. Even in
defence, the Permanent Joint Board and now NORAD, aside from the
nuclear weapons issue, have tended increasingly to become images of
administration rather than patterns of political concern. The question
is how much farther do we have to go? The answer to this may be
seen in part if we briefly set out the areas of immediate continental
need and then forecast the other challenges soon to appear on our
common horizon.
For the immediate future it is clear that we need common
machinery for the integration of resource utilization where,
in
particular, the United States may increasingly become dependent upon
certain primary mineral, forest and specialized agricultural products
of Canada. 3 Then, too, the moment is ripe to convert the lessons of the
Columbia River Treaty into concepts of continental energy develop-
ment.4 We already are great exporters of petroleum and natural gas
to the U.S.5 We are now about to sell our downstream benefits under
the Columbia Treaty and we may soon be selling power from Hamilton
Falls in Labrador through some of the longest transmission lines in
the world via Quebec to the markets of New York City. This pattern
of hydro, petroleum and natural gas energy resource development and
export deserves more than the ad hoc commercial sale approach if it
is not to give rise to unfulfilled expectations, interrupted programs
of development and political “red-herrings” that serve a momentary
regional interest.
In this area, therefore, we need a joint intergovernmental commit-
tee on energy policy that would evolve concepts of development, of
import and export, uniting gas and petroleum pipe lines into common
supply systems and linking electric grid patterns into unities such
as those which already exist in part in British Columbia, in Ontario
and in New Brunswick across the border.
The forest products of Canada have not been free from their own
uncertain relations with United States markets and political chal-
3 See for example Fritz, The Future of Industrial Raw Materials in North
America, Canadian-American Committee (1960).
4 For a full statement of the significance of the Treaty see The Columbia
River Treaty and Protocol-A Presentation, published by the Department of
External Affairs and the Department of Northern Affaire and National Ae-
sources (April 1964).
5 Davis, Natural Gas and Canada – United States Relations. Canadian-American
Committee (1959); also wanted: A Working Environment More Conducive to
Canadian Trade in Natural Gas, a statement by the Canadian-American Com-
mittee (1959).
McGILL LAW JOURNAL
[Vol. 10
lenges. It may be lumber from British Columbia one day, or the rising
cost of newsprint the next –
even through a number of the newsprint
manufacturers are, in fact, wholly or in part owned by American
parent companies. The attempt to stamp soft woods (and therefore
B.C. lumber) with a symbol of the place of origin, eventually vetoed
by the American President, indicates that this is not likely to be the
last time such a policy will be demanded by those regionally involved.
The not infrequent investigation of newsprint prices by congressional
committees and the challenge to alleged Canadian monopolistic prac-
tices again indicates the scope of annoyance inherent in the relation-
ship. Clearly what is required here is a permanent administrative
instrument to de-politicize our forest product relationships through
almost a common market approach with a joint bureaucracy
to
implement the high policies adopted.
What shall we say of U.S. investment in Canada so necessary to
us and yet so symbolic of both dissension and controversy? What of
the attempt to apply the U.S. antitrust laws, or export control regula-
tions, to American subsidiaries in Canada and to others closely linked
with them? What shall we do about labour relations for example, on
the Great Lakes where systematic boycotts by American unions were
deliberately designed to challenge Canadian legislative and trade union
policy? How shall we approach the need for easier trading relation-
ships between our two countries in at least two areas where Canadian
development must look to an improved U.S. market –
secondary
industries and varieties of agricultural products? Will such a program
virtually mean going for beyond GATT and evolving common market
techniques on a variety of fronts with special awareness for the
vulnerability of certain Canadian sectors to superior technology, a
vulnerability which can be overcome, of course, given time, a sizable
receptive U.S. market and a superior technology of our own? G How
shall we manage the continuing balance of payments problems
besetting both countries, the U.S., with the world, facing a chronic
drain of gold, and Canada, facing a chronic challenge to its ability
to achieve equilibrium with United States in imports and exports and
depending, therefore, so heavily on U.S. capital imports to make up
the difference? Finally, we will know in a few weeks what we are to
do about our new High Seas Fisheries zone –
the 12-mile line within
which exclusive Canadian fisheries jurisdiction will be exercised off
6 The recent discussion concerning the encouragement to Canadian manufac-
turers to fabricate automobile parts in Canada shows how strong is the opposition
of United States opinion to the development of an automobile parts manufacturing
program in Canada; see Communiqu6 following Canadian – United States Minis-
terial discussions in Ottawa, Thursday, April 30, 1964. Joint U.S. – Canada Com-
mittee on Trade and Economic Affairs, April 29-30, 1964.
No. 3]
CANADA AND THE UNITED STATES
its coasts subject to American agreement on whatever “historic
rights” are to persist.7 Does this policy lend itself also to common
programs of conservation and extraction without infringing upon
regional political irrationalities?
Each one of these questions would be much better tolerated and
would offer opportunities for more creative ongoing thought and de-
velopment if we had not merely principles but machinery that would
anticipate the difficulties, improve the intertwining opportunities for
policy-making and convert the reality of our geographic continentalism
into political-administrative terms.8
There are those who will fear that such a degree of administration
will mean that the larger dog will wag the smaller tail. But this is
not the story so far, in boundary rivers, or in fisheries, or viewed
realistically even in defence matters –
although here unfortunate
U.S. pressures were brought to bear early in 1963 on Canadian policy-
making. Canada will have an “image” of its own whether we con-
sciously and progressively seek continental solutions or whether we
haltingly proceed from hindsight to crisis and from annoyance to
neurosis. There is no evidence that even the intimacy of the European
Common Market is about to reduce the determination of the Dutch,
the grandeur of the French, the variety of the Italian, or the psychic
energies of the Germans. No perceptive continentalist will ignore
the uniqueness of the French-English Canadian history and dialogue
which by its very ongoing tensions compels Canadians to have an
image even if they do not will it –
an image that is the product of a
search for viable nationhood, an image that is our own, not given to
us by anyone, nor can it be taken away by increasing involvement
with our continental natural neighbour.
If Holmes once said that general principles do not decide specific
cases, at the very least he might have conceded they tend to point
the nose in the direction where the wind of principle invites. For
principle is at least an atmosphere, at least a harbinger of things to
come when detail replaces broad aspirations, when machinery becomes
surrogate for generalities. We are at that moment in the history of
Canadian-American relations where old perorations about the un-
guarded frontier are as empty as the prairies on a holiday but not as
beautiful. What is remarkable is that such clich6s should abound when
there is so much experience already to replace them with the stuff of
an established pattern for a suggested interlaced future for the com-
7 See Bill introduced in the Senate of Canada, B. 11 S, 2nd Session, 26th Parlia-
ment, 13 Eliz. II 1964 – An act Respecting the Territorial Sea and Fishing Zones
of Canada, read a first time April 30, 1964.
8 Cohen, supra note 1.
242
McGILL LAW JOURNAL
[Vol. 10
mon good. The next generation of our relations therefore must spell
out not anew, but on a higher level of reality and refinement, what
history for both of us already has taught: namely, that the sum
of our continent may be greater than its parts though the parts must
and will survive as separate peoples with a distinctive history each of
its own. Yet that history, like the ambient geography links indisso-
lubly, each people with the other, and we will only be the richer if
we make of our oncoming historical processes a deliberately planned
program for the common management of a superb continent that the
accident of place and time has granted us the chance to develop and to
enjoy for both peoples.
