Givens:
The Treaty was signed between the US Government and Canadian Government
Under the treaty, she lacks the authority to do what she is doing (Article 2 and 5).
It might have been possible to use Article IV to support her position, were she the federal government.
As the Treaty was signed between the US-Canada, at the request of and with the support of Congress (Senate provided consent by a 92-1 vote), it rests solely at the federal level (Article II.1) and must be negotiated between the two national governments, or thru a 3rd party (Article IX)
What I find unclear is in Article X. Though, I must admit, the text is probably more clear to smarter people and/or people involved in treaty related law
Article X Section 3:
This Agreement shall remain in force for an initial period of thirty-five years. It may be terminated at the end of the initial thirty-five year period by either Party giving written notice to the other Party, not less than ten years prior to the end of such initial period, of its intention to terminate this Agreement. If neither Party has given such notice of termination, this Agreement will thereafter continue in force automatically until ten years after either Party has given written notice to the other Party of its intention to terminate the Agreement.
Me: So, I am trying to understand if the treaty ends after 35 years, but is self-reissuing and requires 10 year notice meaning if the US or Canada said it was not reissuing it would not go into effect until 2030.
Analysis from Van de Biezenbos
The US promised that no American “public authority” would “institute any measures” that “would have the effect of, impeding, diverting, redirecting or interfering with in any way the transmission of hydrocarbon in transit” unless there was a “natural disaster, an operating emergency, or other demonstrable need temporarily to reduce or stop for safety or technical reasons the normal operation of a pipeline.” Enbridge’s Line 5 carries oil from Western Canada to Ontario so the treaty would seem to apply.
The State of Michigan may make several arguments to avoid operation of the treaty, including the argument that it is shutting the pipeline down in response to one of the explicit grounds for halting the operation of a pipeline under the treaty. The difficulty is that Michigan has also opposed efforts to replace the existing pipeline, making it harder to claim the shutdown would only be temporary.
Relying on recent US Supreme Court decisions, Michigan could also claim that the Pipeline Transit Treaty is not self-executing – meaning Congress would need to pass specific legislation to implement it – and was not intended to preempt state law.
At the end of the day, I think she is likely going to lose this fight in the courts.
copy of the text of the treaty
https://www.treaty-accord.gc.ca/text-texte.aspx?id=101884
Pres Jimmy Carter's message on the Pipeline
https://www.presidency.ucsb.edu/documents/united-states-canada-transit-pipeline-agreement-message-the-senate-transmitting-the
cdhowe.org analysis
https://www.cdhowe.org/intelligence-memos/van-de-biezenbos-coleman-%E2%80%93-40-year-old-treaty-could-save-line-5
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