The Management of International Environmental Disputes in the Context of Canada-United States Relations: A Survey and Evaluation of Techniques and Mechanisms

Catherine A. Cooper

doi:10.1017/S0069005800002952

¹ E.g., Charter of the United Nations (hereinafter cited as UN Charter), Arts. 2(3) and 33. This principle is repeated in many other international instruments. For a recent survey, see Alheritiere, , “Settlement of Public International Disputes on Shared Resources: Elements of Comparative Study of International Instruments,” (1985) 25 Nat. Res. J. 710.Google Scholar This is a positive obligation to seek settlement, going beyond the duty to merely refrain from the threat or use of force found in Art. 2(4) of the UN Charter. (David Davies Memorial Institute of International Studies (hereinafter DDMI), International Disputes: The Legal Aspects 9 (1972).) In the environmental context, certain types of “self-help” and coercion can be envisaged, such as the imposition of economic sanctions in response to environmental concerns. Also in the category of self-help could be considered unilateral state legislative action such as Canada’s Arctic Waters Pollution Prevention Act (R.S.C. 1970 (1st Supp.) c. 2), by which Canada asserts regulatory jurisdiction over pollution-threatening activities in Arctic waters in an attempt to prevent and control pollution. See also Art. 1 of the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Nov. 29, 1969, 26 U.S.T. 765, T.I.A.S. no. 8068.

² It reads: “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” The general principle of exhaustion of anterior processes before resorting to international arbitration or adjudication is relevant here. It is invoked by international tribunals at the stage of deciding on admissibility of the dispute for determination. However, each of the means set out in Art. 33 (1) need not first be tried. Some form of diplomatic communication will usually suffice. See Reisman, , Nullity and Revision 359–63 (1971)Google Scholar. Some international instruments in their dispute settlement chapters do in fact prescribe the order of preference in which the various means should be resorted to (e.g., the International Law Association’s non-binding Helsinki Rules on the Uses of the Waters of International Rivers, adopted Aug. 20, 1966, ILA, Report of the Fifty-Second Conference Held at Helsinki (1967) at 484, Arts. 30-34).

³ Unlike Art. 33, however, this article will not be restricted to international dispute settlement as between states, but will include non-state parties where applicable, and international dispute settlement through national fora.

⁴ See text, infra 308.

⁵ In this article, “management” of international disputes will refer to settlement and avoidance thereof.

⁶ Bilder, , “The Settlement of Disputes in the Field of the International Law of the Environment,” [1975] 1 Hague Receuil des Cours 139, 155.Google Scholar

⁷ Schneider, , World Public Order for the Environment 182 (1979).Google Scholar

⁸ Bilder, supra note 6, at 156.

⁹ In the U.S., actions on behalf of such groups are known as class actions.

¹⁰ Levin, , Protecting the Human Environment 12 (1977).Google Scholar

¹¹ Ibid., ix.

¹² See von Moltke, , “International Aspects of Acid Rain: Where Do We Stand?,” in Carroll, (ed.), Pollution Across Borders: Acid Rain-Acid Diplomacy Google Scholar (Proceedings of a Conference sponsored by the University of New Hampshire Environmental Conservation Program, Sept. 12–14, 1984). He states at 5, “Uncertainty is no reason for inaction; in fact, all environmental policy involves a substantial degree of uncertainty, perhaps greater uncertainty than in most other policy areas. … The result of uncertainty is mainly to enlarge the political component of decisions.”

¹³ Davis, , “Acid Rain Still a Sore Point for United States, Canada; But Both Sides Are Optimistic,” (May 28, 1983) 41 Congressional Quarterly 1063, 1065.Google Scholar

¹⁴ Memorandum of Intent between the Government of the United States of America and the Government of Canada Concerning Transboundary Air Pollution, Aug. 5, 1980, 20 I.L.M. 690.

¹⁵ Sibley, , “A Canadian Perspective on the North American Acid Rain Problem,” (1983) 4 N.Y. L. Sch. J. Int’l & Comp. L. 529, 542.Google Scholar

¹⁶ Letter from Representative Toby Moffett (D-Conn.) to Alexander Haig, Secretary of State (June 18, 1982), ibid., 542, n. 49.

¹⁷ E.g., Levin, supra note 10, at x.

¹⁸ E.g., Bilder, supra note 6, at 154.

¹⁹ Ibid., 154.

²⁰ Ibid., 155.

²¹ Put very simply, the developing nations are suspicious of environmental norms advocated by the developed nations, fearful that they will interfere with the realization of their own economic objectives, and claiming that the same relatively strict standards appropriate in developed countries should not apply to them since their environment has not yet reached the same level of degradation. See, e.g., Robinson, , “Problems of Definition and Scope,” in Hargrove, (ed.), Law, Institutions and the Global Environment 48–49 (1972).Google Scholar Indeed, this tension between economic development and protection against extraterritorial environmental damage is echoed in the two limbs of Principle 21 of the Stockholm Declaration on the Human Environment (reprinted in (1972) 11 I.L.M. 1416). See also Biswas, , “Environment and Law: A Perspective from Developing Countries,” in Hague Academy of International Law [1984] Colloque 389.Google Scholar

²² Lewis, and Davis, , Joint Report of the Special Envoys on Acid Rain 6 (Jan. 1986)Google Scholar. (Office of the Special Envoy on Acid Rain, Ste 1506, 141 Adelaide St. W., Toronto).

²³ Some writers suggest that, at least in the environmental context, relations should be more formalized. See, e.g., Carroll, , Environmental Diplomacy 277ff. (1983).Google Scholar

²⁴ Yet it has been commented that “[i]f the Senate is a factor to be reckoned with on the United States side, the attitude of the provinces may be no less important on the Canadian side in political if not in constitutional terms in cases where their interests are directly engaged…”: Wang, , “Adjudication of Canada-United States Disputes,” (1981) 19 Canadian Yearbook of International Law 158, 202.Google Scholar

²⁵ Murray, , “Trade-Conscious Congress Embroils Itself in Complexities of U.S.Canadian Relations,” (May 28, 1983) 41 Congressional Quarterly 1057.Google Scholar

²⁶ Ibid., 1057.

²⁷ S. Exec. Doc. V. 96th Cong., 1st Sess. (1979).

²⁸ Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, [1984] I.C.J. Rep. 246.

²⁹ For further discussion of Canada-U.S. environmental relations, see Carroll, supra note 23, and Fox, , “Environmental Issues,” in Armstrong, , Armstrong, , and Wilcox, (eds.), Canada and the United States 189–219 (1982).Google Scholar

³⁰ Treaty Relating to Boundary Waters and Questions Arising Along the Boundary between the United States and Canada, Jan. 11, 1909, 36 Stat. 2448; T.S. no. 548, reprinted in (1910) Am. J. Int’l L., Official Documents, 239.

³¹ Despite this constitution, the IJG is a “collegial” or unitary body as opposed to a representative one in that “they come to collective decisions as individuals and not under instruction or as representatives of their governments,” LeMarquand, , Boundary Water Relations and Great Lakes Issues, Inquiry on Federal Water Policy—Research Paper No. 8, Mar. 1985, Ottawa, at 24.Google Scholar

³² E.g., five of six memberships were left vacant from Jan. to Sept. 1981, so that the Commission was “unable to function effectively for over eight months in the absence of chairmen, a quorum and decision-making capacity” (Cohen, foreword in Carroll, supra note 23, at xv).

³³ Article 4 states: “It is further agreed that the waters herein defined as boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other.”

³⁴ Cohen in Carroll, supra note 23, at x.

³⁶ In practice, however, at least at the international level, there is much scope for the exercise of discretion by the third party, not only in the application of the rules to the facts but also in the determination of those applicable rules, even when it is a specific treaty provision at issue. This element of discretion opens the door for compromise. See Bowett, , “Contemporary Developments in Legal Techniques in the Settlement of Disputes,” [1984] 2 Hague Receuil des Cours 169, 194–98Google Scholar. He concludes that “the legal process relies on compromise more than is commonly supposed” (at 191). Furthermore, the parties can themselves agree to introduce the application of what are strictly speaking non-legal criteria through the applicable “law” clause of an arbitral compromis or in a special agreement submitting a dispute to the ICJ. Finally, there is the as yet untried option (at least with respect to the ICJ) of the parties agreeing to a decision “ex aequo et bono”: Statute of the International Court of Justice (hereinafter ICJ Statute) Art. 38(2).

³⁶ It may be questioned whether there is any meaningful distinction between international adjudication and arbitration: see, e.g., Wang, supra note 24, at 160–61.

³⁷ Bilder, , “Some Limitations of Adjudication as an International Dispute Settlement Technique,” (1982–83) 23 Va. J. Int’l L. 1, at 9.Google Scholar

³⁸ For a list of such courts, see Bowett, supra note 35, at 178–79.

³⁹ For a brief discussion of their potential, although limited, relevance in the environmental field, see Schneider, supra note 7, at 190–91.

⁴⁰ Useful and comprehensive works on the ICJ include Rosenne, , The Law and Practice of the International Court (2 vols.) (1965)Google Scholar, Gross, , The Future of the International Court of Justice (2 vols.) (1976)Google Scholar, and Elias, , The International Court of Justice and Some Contemporary Problems (1983).CrossRef Google Scholar

⁴¹ Australia v. France; New Zealand v. France, [1974] I.C.J. Rep. 253 and 457.

⁴² United Kingdom of Great Britain and Northern Ireland v. Iceland; Federal Republic of Germany v. Iceland, [1974] I.C.J. Rep. 3 and 175.

⁴³ Supra note 28.

⁴⁴ Jessup, , “Do New Problems Need New Courts?”, (1971) 65 Proceedings of the American Society of International Law 261.CrossRef Google Scholar

⁴⁵ ICJ Statute, Art. 36.

⁴⁶ Formal consent to jurisdiction does not necessarily indicate a willingness to appear in a particular matter. In fact, states have in effect a discretion not to appear: Bowett, supra note 35, at 206. Jurisdiction of the Court will not, however, thereby be denied: see ICJ Statute, Art. 53.

⁴⁷ Other means include ratification, first, of a general dispute settlement treaty with provision for compulsory settlement by the ICJ, e.g., Art. 17 of the General Act for the Pacific Settlement of International Disputes (1928) 93 LNTS 343, revised (¡949) 71 UNTS 101, which was relied on, in part, to found jurisdiction in the Nuclear Tests cases, supra note 41. (Its applicability was also considered at length in the Aegean Sea Continental Shelf case (Greece v. Turkey, [1978] I.C.J. Rep. 3) ; second, though rarely, of a particular treaty with similar provision, e.g., Optional Protocol on the Compulsory Settlement of Disputes to the 1958 Geneva Convention on the Law of the Sea, 450 UNTS 169 (1958).

⁴⁸ See Waldock, , “Decline of the Optional Clause,” (1955–56) 32 B.Y.I.L. 244 Google Scholar, and Merrills, , “The Optional Clause Today,” (1979) 50 B.Y.I.L. 87.Google Scholar

⁴⁹ Supra note 1.

⁵⁰ Schneider, supra note 7, at 198. It was with respect to “disputes arising out of or concerning jurisdiction or rights claimed or exercised by Canada in respect of the conservation, management or exploitation of the living resources of the sea, or in respect of the prevention or control of pollution or contamination of the marine environment in marine areas adjacent to the coast of Canada”: Para. 2(d) of Canada’s Declaration recognizing Jurisdiction, (1984–85) 39 I.C.J.Y.B. 70.

⁵¹ Sept. 10, 1985. See (1985) 24 I.L.M. 1729.

⁵² See (1984–85) 39 I.C.J.Y.B. 100.

⁵³ This action, was, in part, prompted by the U.S.’s dissatisfaction with the Nicaragua proceedings and the feeling that the Court’s objective of peaceful adjudication of international disputes was being subverted by the efforts of certain states to use the Court as a political weapon: see Press Statement, Oct. 7, 1985, in (1985) 24 I.L.M. 1743.

⁵⁴ Environmental cases are not among the two types of cases expressly cited as examples in Art. 26(1) ; however, former Judge Jessup specifically raised the possibility (supra note 44, at 242).

⁵⁵ ICJ Rules of Court (1978), Art. 17(2): ICJ Acts and Documents No. 4 (1978), at 92, reprinted in Rosenne, , Documents on the International Court of Justice (2nd ed., 1979).Google Scholar

⁵⁶ See, e.g., Brauer, , “International Conflict Resolution: The ICJ Chambers and the Gulf of Maine Dispute,” (1983) 23 Va. J. Int’l L. 463, 481.Google Scholar

⁵⁷ E.g., Schwebel, , “New Life for World Court,” (1983) 23 Va. J. Int’l L. 375, 377.Google Scholar

⁵⁸ See Art. 31. In view of the fact that neither party in the Gulf of Maine case was completely satisfied with the result, particularly the U.S., the question arises whether the influence on the composition of the Chamber actually benefited either state. The legal advisers to the U.S. in that case have since reasserted the desirability of consideration of the parties’ views on the makeup of a chamber: Robinson, , Colson, , and Rashkow, , “Some Perspectives on Adjudicating before the World Court: The Gulf of Maine Case,” (1985) 79 Am. J. Int’l L. 578, 583CrossRef Google Scholar. The U.S. has also since, in principle, agreed to submit a dispute between it and Italy to a chamber of the Court : see Statement (Oct. 7, 1985) in (1985) 24 I.L.M. 1745.

⁵⁹ Arts. 65–68. For further discussion of the utility of this jurisdiction, see e.g., Szasz, , “Enhancing the Advisory Competence of the World Court,” in Gross, (ed.), 79 Future of the International Court of Justice, Vol. 2, at 499–549 (1976).Google Scholar

⁶⁰ ICJ Statute, Art. 66(2)–(4).

⁶¹ See Bilder, supra note 6, at 230.

⁶² Art. 62(1). E.g., see the IGJ’s judgments concerning Malta’s application to intervene in the Tunisia/Libya Continental Shelf case, [1981] I.C.J. Rep. 3 and concerning Italy’s application to intervene in the Libya/Malta Continental Shelf case, [1984] I.C.J. Rep. 3.

⁶³ Some states, including the Philippines and, until Apr. 1986, the United States have made reservations to their acceptances of the compulsory jurisdiction of the ICJ in respect of disputes arising under a multilateral treaty unless all parties thereto are parties to the case before the Court or unless that state otherwise agrees to jurisdiction.

⁶⁴ Art. 34(2).

⁶⁵ It was used in the Corfu Channel case, [1949] I.C.J. Rep. 4.

⁶⁶ [1984] I.C.J. Rep. 165.

⁶⁷ Ibid., 347.

⁶⁸ Supra note 55.

⁶⁹ Roserme, , Procedure in the International Court 32 (1983).Google Scholar

⁷⁰ See generally, Mani, , International Adjudication 293–99 (1980)Google Scholar; Goldie, , “The Nuclear Tests Cases: Restraint on Environmental Harm,” (1973–74) 5 J. Mar. L. & Comm. 491.Google Scholar

⁷¹ Supra note 41. Significantly, France defied the Order.

⁷² Supra note 70, at 497.

⁷³ Elkind, Interim Protection 220–24, 230 (1981).

⁷⁴ Ibid., 228.

⁷⁵ UN Doc. A/CONF. 62/122 (1982), reprinted in (1982) 21 I.L.M. 1261.

⁷⁶ For a useful survey, see Merrills, , International Dispute Settlement 117–40 (1984).Google Scholar

⁷⁷ See UNGLOS, Annex VI.

⁷⁸ See UNCLOS, Part XI, section 5, and Annex VI.

⁷⁹ Schwebel, supra note 57, at 377.

⁸⁰ Colson, , “Environmental Factors: Are They Relevant to Delimitation?” (1985), at p. 11 Google Scholar (paper presented by David A. Colson, Assistant Legal Adviser, Dept. of State, to the igth Annual Conference of the Law of the Sea Institute, July 24–27, 1985, Cardiff, Wales) ; publication in Law of the Sea Institute (Honolulu) proceedings, forthcoming.

⁸¹ Department of External Affairs, International Canada 3–4 (supplement to International Perspectives (March/April (1985)). Note also Tunisia’s application for revision of the ICJ’s judgment in the Tunisia/Libya Continental Shelf case, [1982] I.C.J. Rep. 18, more than two years after the judgment was given (see (1984–85) I.C.J.Y.B. 158–59).

⁸² See Springer, , “Resolving US-Canadian Environmental Disputes: The Role of Adjudication in the Gulf of Maine Dispute” (paper presented to the Association for Canadian Studies in the U.S., Philadelphia, Sept. 20, 1985).Google Scholar

⁸³ See discussion, supra note 35.

⁸⁴ Bowett, supra note 35, at 200. The continental shelf cases, in particular, seem to evidence this. Whether such compromise is consistent with the judicial process is another question : ibid., 198–201.

⁸⁵ In the context of river basin disputes, even in the municipal context where there is more potential for courts to make adjustments at a future date, the United States Supreme Court, for example, which has had much experience with such disputes, has commented on the appropriateness of a negotiated administrative regime over invocation of its adjudicatory power: see, e.g., Colorado v. Kansas, (1943) 320 U.S. 383, 392.

⁸⁵ [1969] I.C.J. Rep. 3.

⁸⁷ Handl, , “Territorial Sovereignty and the Problem of Transnational Pollution,” (1975) 69 Am. J. Int’l L. 50, 75.CrossRef Google Scholar

⁸⁸ For discussion of this issue, see Caron, , “Liability for Transnational Pollution Arising from Offshore Oil Development,” (1983) 10 Ecology L.Q. 641 Google Scholar, n. 117 and sources cited therein.

⁸⁹ See Handl, supra note 87.

⁹⁰ E.g., the IMCO International Convention on Civil Liability for Oil Pollution Damage, Nov. 29, 1969, (1970) 9 I.L.M. 45. See, Levin, supra note 10, at 47.

⁹¹ See, e.g., Van Alstyne, , “The Justiciability of International River Disputes,” [1964] Duke L.J. 307 CrossRef Google Scholar. But while they may be amenable, it is widely suggested that there are more appropriate means for river dispute settlement: see supra note 85, and, e.g., the Helsinki Rules, supra note 2, Commentary to Art. 30.

⁹² Such judicial decisions are a “secondary” source of international law within Art. 38(1) (d) of the ICJ Statute.

⁹³ “On disputed issues, states are more apt to conform their behaviour to community norms when there has been an authoritative decision than when there has not, because a judgment itself carries a degree of compelling weight”: Schneider, supra note 7, at 199.

⁹⁴ UN DOC. A/8382, as quoted in Wang, supra note 24, at 197.

⁹⁵ Brauer, supra note 56, at 475.

⁹⁶ Established by the 1899 and 1907 Hague Convention for the Pacific Settlement of Disputes, USTS No. 39a, UKTS 9 (1901) ; USTS No. 536, UK.TS 6 ( 1971 ), respectively.

⁹⁷ Ibid.

⁹⁸ I.U.C.Y.B. (1958), Vol. II, at 12. Reprinted in Nanturi, The Enforcement of International Judicial Decisions and Arbitral Awards in Public International Law 191 (1967).

⁹⁹ Supra note 75.

¹⁰⁰ (1938 and 1941), 3 U.N.R.I.A.A. 1905 and 1938, reprinted in (1939) 33 Am. J. Int’l L. 182, and (1941) 35 Am. J. Int’l L. 156.

¹⁰¹ (1957) 12 U.N.R.I.A.A. 281; 24 I.L.R. 101.

¹⁰² For a good account of Canadian-U.S. arbitral experience, see Wang, supra note 24.

¹⁰³ See Canada-United States Settlement of Gut Dam Claims, Sept. 22, 1968, Report of the Agent of the United States before the Lake Ontario Claims Tribunal, (1969) 8 I.L.M. 118.

¹⁰⁴ Supra note 30.

¹⁰⁵ Tne scope of jurisdiction here is not restricted on its face to boundary and transboundary water issues.

¹⁰⁶ Report and Recommendations of the American and Canadian Bar Associations’ Joint Working Group on the Settlement of International Disputes, in ABA and CBA, Settlement of International Disputes Between Canada and the USA (Sept. so, 1979), at li.

¹⁰⁷ Compulsory jurisdiction is limited to questions of treaty interpretation, application, and operation. For further discussion of this draft treaty, see text, infra 269.

¹⁰⁸ For a discussion of this principle, see Reisman, supra note 2, at 364–70.

¹⁰⁹ See Wang, supra note 24, at 183. And see discussion on National Adjudication, infra 271.

¹¹⁰ See text, infra 278–81.

¹¹¹ Either of which may be compulsory, e.g., Art. 16 of Treaty Relating to Cooperative Development of the Water Resources of the Columbia River Basin (between the U.S. and Canada), Jan. 17, 1961, (1964) Can. T.S. No. 2; 15 UST 1555; 542 UNTS 244.

¹¹² See text, supra 258–59.

¹¹³ Since the Gulf of Maine case, the chambers procedure has been invoked for a second time in the Frontier Dispute between Burkino Faso and Mali (see (1984–85) 39 I.C.J.Y.B. 171), and the U.S. and Italy have agreed in principle to submit a dispute to a chamber of the Court (see supra note 58).

¹¹⁴ Supra note 100, at 1908.

¹¹⁵ A decision on that basis is available with the ICJ under Art. 38(2) of the Court’s Statute.

¹¹⁶ See text, supra at note 86.

¹¹⁷ E.g., the International Centre for Settlement of Investment Disputes (ICSID) arbitrates investment disputes between states parties to the Convention and nationals of other contracting states. Arbitration in general is much utilized for the settlement of international commercial and trade disputes and these disputes may have an environmental component; conversely, environmental disputes often entail economic consequences (particularly impacts on competition and trade), disputes which may be dealt with through arbitration.

¹¹⁸ Supra 267.

¹¹⁹ Draft Treaty on a Third-Party Settlement of Disputes, Art. 2(2), supra note 106. It will be recalled that Article 10 of the Boundary Waters Treaty requires consent of both parties as well as the advice and consent of the U.S. Senate. Yet the Senate treaty ratification hurdle would still have to be cleared for this proposal ever to come into effect.

¹²⁰ Art. 8(1).

¹²¹ Cohen, , “Canada and the US: New Approaches to Undeadly Quarrels,” in International Perspectives (Mar./Apr. 1985), 16 at 19.Google Scholar Several state and provincial governments, however, have taken up the proposals embodied in the Bar Associations’ other draft treaty on equal access and remedies in cases of transfrontier pollution: see text infra 379–80.

¹²² And see Wang, supra note 24, at 184.

¹²³ See text supra 267.

¹²⁴ Convention on the Protection of the Environment between Denmark, Finland, Norway, and Sweden (Stockholm, Feb. 19, (1974) 13 ILM 591, hereinafter the Nordic Convention). Mention might also be made of the conventions that impose strict liability on an international polluter, e.g., the International Convention on Civil Liability for Oil Pollution of 1969, (1970) 9 I.L.M. 45, which imposes strict liability on the shipowner and, where pollution damage occurs in more than one state, specifies the courts that have jurisdiction and provides for recognition and enforcement of the judgment.

¹²⁵ Caron, supra note 88, at 673.

¹²⁶ A detailed comparative study of the practical considerations and legal issues involved with national adjudication is beyond the scope of this section. For good treatment of the subject, see Lammers, , Pollution of International Watercourses 23–68 (1984)Google Scholar; Sand, , “The Role of Domestic Procedures in Transnational Environmental Disputes,” in OECD, Legal Aspects of Trans-frontier Pollution 146 (1977)Google Scholar; OECD Secretariat, , “Equal Right of Access in Matters of Transfrontier Pollution in OECD Member Countries,” ibid., 54 Google Scholar; McCaffrey, , Transboundary Pollution Injuries: Jurisdictional Considerations in Private Litigation between Canada and the United States; (1973) 3 Cal. West Int’l L.J. 191 Google Scholar; and McCaffrey, , Private Remedies for Transfrontier Pollution Damage in Canada and the United States: A Comparative Study , (1981) U. of Western Ontario L. Rev. 35.Google Scholar

¹²⁷ 768 F.2d 426 (U.S. Ct. App. D.C. Cir. 1985) (presently under appeal to the U.S.S.C.).

¹²⁸ It can be questioned whether such private actions which bear upon intergovernmental disputes are desirable from an international relations and dispute settlement perspective. In American Cetacean Society et al. v. Baldridge et al., supra note 137, the U.S. and Japan had in fact reached an executive agreement on the problem but it was undermined by this judgment. Yet, in other cases, such actions clearly serve to encourage enforcement of environmental provisions where government officials otherwise either decline or neglect to do so. In fact, this inertia was apparently one of the primary reasons behind the citizen suits provisions in some American environmental statutes such as s. 304 of the Clean Air Act, discussed infra 274. ( Lutz, and McCaffrey, , “Standing on the Side of the Environment: A Statutory Prescription for Citizen Participation,” (1971) 1 Ecology L.Q. 561, n. 225).Google Scholar

¹²⁹ McCaffrey, , “Private Remedies for Transfrontier Pollution Injuries,” in Nowak, (ed.), Environmental Law 13 (1976).Google Scholar

¹³⁰ Sand, supra note 126, at 177–78. See further, Dawson, , “International Law and the Procedural Rights of Aliens Before National Tribunals,” (1968) 17 Int’l & Comp. L.Q. 404 CrossRef Google Scholar. On general principles of jurisdictional competence, see Brownlie, , Principles of Public International Law 298–306 (3rd ed., 1979).Google Scholar

¹³¹ Bulwer’s Case, 7 Coke, 1a. 77 Eng. Reprint 411 (1584).

¹³² [1893] A.C. 602.

¹³³ Albert v. Fraser Companies Ltd., [1973] 1 D.L.R. 39; see McCaffrey (1973), supra note 126, at 224–29. But see OECD Secretariat, supra note 126, at 101, where it is asserted that the authorities on this point are not decisive.

¹³⁴ See text, infra 275.

¹³⁵ (Emphasis added). 28 s. 2680, Lit. K. What is meant by “arise” is unclear.

¹³⁶ E.g., Clean Air Act, s. 304, 42 USC s. 7604(a) (1982) ; Federal Water Pollution Control Act, s. 505, 33 USC s. 1365(a) (1982); Noise Control Act of 1972, 42 USC s. 4911 (1982) ; Michigan Environmental Protection Act 1970, Mich. Comp. Laws Ann. ss. 691.1201–97 (1970) (the model for about 10 other state statutes).

¹³⁷ McCaffrey (1973), supra note 126, at 237. And see the dicta in Michie v. Great Lakes Steel, (495 F.2d 213), with respect to the Clean Air Act. One commentator cautions that the legislation and its history must be examined to determine the legislative intent with respect to the issue of application to non-resident aliens: Fitzgerald, , “The Proposed Canada-United States Trans-boundary Air Pollution Agreement: The Legal Background,” (1982) 20 Canadian Yearbook of International Law 219, 236.Google Scholar

¹³⁸ Minn. Stat. s. 116B.03 Subdiv. 1 ( 1971 ).

¹³⁹ For the American situation, see Lutz and McCaffrey, supra note 128 and Adler, , “The Viability of Class Actions in Environmental Litigation,” (1972) 2 Ecology L.Q. 533 Google Scholar. For the Canadian situation, see Roman, , “Locus Standi: A Cure in Search of a Disease?”, in Swaigen, (ed.), Environmental Rights in Canada 11 (1981)Google Scholar, and Green v. Ontario (1972), 34 D.L.R. (3d) 20. For an example of an American case where intervenor status was granted to a Canadian environmental organization, see Wilderness Society v. Morton, 463 F.2d 1261 (1972) (D.C. Ct. of App’s.).

¹⁴⁰ Lammers, supra note 126, at 43.

¹⁴¹ McCaffrey, supra note 129, at 15–16. But see McCaffrey (1973)) supra note 126, at 251–52, and Lammers, ibid., 32.

¹⁴² For further discussion of this point, see McCaffrey (1973), supra note 138, at 242–47, and the dicta of the U.S. Supreme Court in Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 500–1 (1971).

¹⁴³ Minn. Stat., s. 116B.11, subdiv. 1 (1971).

¹⁴⁴ See text, infra 277–78.

¹⁴⁵ Restatement of the Law, Second, Conflict of Laws (1971).

¹⁴⁶ See Lammers, supra note 126, at 37–39.

¹⁴⁷ See Hunt, “The Public Trust Doctrine in Canada,” in Swaigen, supra note 139, at 151, and Green v. Ontario, supra note 139.

¹⁴⁸ See text, supra 274.

¹⁴⁹ McCaffrey (1981) suggested that a United States court could invoke the doctrine against a Canadian polluter: supra note 126, at 55. On the question of whether and to what extent a court will apply foreign public or statutory environmental rules, see Lammers, supra note 126, at 40–42.

¹⁵⁰ See McCaffrey, supra note 129, at 20.

¹⁵¹ Ibid., 20.

¹⁵² Ibid.

¹⁵³ OECD Secretariat, supra note 126, at 84.

¹⁵⁴ But jurisdiction in accordance with which state’s standards? Lammers speaks of the standards of the enforcing court (supra note 126, at 47) whereas McCaffrey refers to the “rendering countries’ requirements” (supra note 129, at 21). In any event this is of little consequence in the Canadian-U.S. situation because the two countries share similar standards for extraterritorial service (see McCaffrey (1973), supra note 126, at n. 342).

¹⁵⁵ Lammers, ibid., 47–49.

¹⁵⁶ Ibid., 49.

¹⁵⁷ McCaffrey, supra note 129, at 21 ; and see supra note 154.

¹⁵⁸ Official Journal of the European Communities, Legislation (Oct. 30, 1978). Reprinted, as amended in (1979) 18 I.L.M. 21.

¹⁵⁹ Supra note 30.

¹⁶⁰ McCaffrey, (1973), supra note 126, at 203–17.

¹⁶¹ Nordic Convention, supra note 124, Arts. 2 and 3.

¹⁶² Principle 14, The UNEP Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States (UN Doc. UNEP/GC.6/17, reprinted in (1978) 17 I.L.M. 1097).

¹⁶³ Recommendation of the Council for the Implementation of a Regime of Equal Right of Access and Non-Discrimination in Relation to Transfrontier Pollution, OECD Doc. C(77)28, Annex, Section 4(b). (Reprinted in OECD, supra note 126, at 29.)

¹⁶⁴ ABA and CBA, supra note 106, at xiii.

¹⁶⁵ Fitzgerald, supra note 137, at 239.

¹⁶⁶ The Transboundary Pollution Reciprocal Access Act, 1986, S.O. 1986, c. 10.

¹⁶⁷ Sand, supra note 126, at 187.

¹⁶⁸ Some particular statutes provide for equal access for actions within their scope. For example, the Trans-Alaska Pipeline Act (43 USC s. 1653(c) (1) (1973) ) in s. 204 allows its system of strict liability to be invoked by “any person or entity, public or private, including those resident in Canada …” (emphasis added).

¹⁶⁹ Supra note 158.

¹⁷⁰ Agreement Concerning Frontier Rivers (Finland and Sweden, Stockholm, Sept. 16, 1971), 825 UNTS 191.

¹⁷¹ Of note also is an early (and much more limited) form of national judicial institution dealing with transnational river disputes in respect of navigation— the Rhine Navigation Tribunals provided for in Arts. 33–40 of the Revised Convention on the Navigation of the Rhine (Mannheim, Oct. 17, 1868, as revised Nov. 20, 1963, reprinted in Peaslee, , 5 International Governmental Organizations 154 (3rd ed., 1976).Google Scholar These national tribunals have jurisdiction over navigation offences as well as civil disputes arising from navigational activities. The Convention provides for the appropriate venue, procedure, and for the enforcement of judgments.

¹⁷² Were non-pollution-related environmental injuries, such as from a diversion from physical change to a watercourse, not covered because Article 2 of the Boundary Waters Treaty was felt to be operative or simply because pollution was perceived as being a “hotter” political issue?

¹⁷³ See supra note 128.

¹⁷⁴ Levin, supra note 10, at 21.

¹⁷⁵ See generally, DDMI, supra note 1 (Report at 3, Darwin, , “Mediation and Good Offices,” at 83,Google Scholar Fox, “Conciliation,” at 93, and Darwin, , “Factfinding and Commissions of Inquiry,” at 159)Google Scholar; the 1899 and 1907 Hague Conventions for the Pacific Settlement of Disputes, supra note 96 ; and the 1928 General Act for the Pacific Settlement of International Disputes, supra note 47. Since implementation of these procedures is often on an informal ad hoc basis and since they involve some functional overlap, there is considerable confusion in the literature as to terminology and definitions.

¹⁷⁶ Even where resort to these procedures is mandated by agreement, their result remains non-binding. Bourne states that there is no general legal obligation of states to resort to intermediary procedures where bilateral negotiations fail. “Majority opinion, especially more recent opinion, supports only a recommendation of mediation and conciliation” (emphasis added). Bourne, , “Mediation, Conciliation and Adjudication in the Settlement of International Drainage Basin Disputes,” (1971) 9 Canadian Yearbook of International Law 114, 125.Google Scholar

¹⁷⁷ Supra note 10, at 28–37.

¹⁷⁸ Merrills, supra note 76, at 29.

¹⁷⁹ Art. 38(1)(c), ICJ Statute.

¹⁸⁰ Merrills, supra note 76, at 33.

¹⁸¹ Though not without some political interference. See Sibley, supra note 15, at 542.

¹⁸² Brauer, supra note 56, at n. 38.

¹⁸³ Supra note 2, Art. 32 and Commentary.

¹⁸⁴ Ibid., Art. 31.

¹⁸⁵ UNEP/GC/44, para. 87(d) (8).

¹⁸⁶ Levin, supra note 10, at 26 and n. 117.

¹⁸⁷ Merrills, supra note 76, at 28.

¹⁸⁸ Bourne, supra note 176, at 125. For a detailed account of the Bank’s role in this mediation, see Mason, and Asher, , The World Bank Since Bretton Woods 610–27 (1973).Google Scholar

¹⁸⁹ Barnes, , “Environmental Mediation: A Tool for Resolving International Environmental Disputes in the ‘Pacific Way’,” in Hague Academy of International Law, [1984] Colloque 167, 170.Google Scholar

¹⁹⁰ E.g., ibid., 171.

¹⁹¹ Domestic environmental mediation has been practised to a significant degree of late in the U.S. with over 160 disputes having been mediated by the end of 1985 ( Stein, and Grenville-Wood, , “The Settlement of Environmental Disputes: A Forward Look,” in Report for the World Commission on Environment and Development (Dec. 1985), at 10 Google Scholar (available from Environmental Mediation International (EMI), 171 Nepean St., Ste 200, Ottawa) ).

¹⁹² See Bourne, supra note 176, at 125 and sources cited therein.

¹⁹³ Haussmann, , “Introduction to the Environmental Mediation Process: Its Application in Canada,” in EMI, Environmental Mediation in Canada, Seminar Proceedings (Ottawa, Apr. 14–15, 1983).Google Scholar

¹⁹⁴ Agreement between the United States and Canada on the Skagit River (Apr. 2, 1984).

¹⁹⁵ In Stein, “The Mediation of International Environmental Disputes,” in EMI Seminar Proceedings, supra note 193, at 9.

¹⁹⁶ See Bourne’s comments on the failure of the Helmand River Delta commission to come up with an acceptable report on the apportionment of the Helmand River between Afghanistan and Iran, supra note 176, at 122.

¹⁹⁷ E.g., Barnes, supra note 189, at 176.

¹⁹⁸ For a detailed treatment of this subject, see Bar-Yaacov, , The Handling of International Disputes by Means of Inquiry (1974).Google Scholar

¹⁹⁹ Merrills, supra note 76, at 49.

²⁰⁰ LeMarquand, supra note 31, at 30.

²⁰¹ Second Report on Responsibilities and Liability of States in Relation to Transfrontier Pollution, reprinted in (1984) 13 Environmental Policy and L. 122.

²⁰² Supra note 10, at 24–5.

²⁰³ For a detailed treatment of this subject, see Cot, , International Conciliation, trans. Myers, (1972).Google Scholar

²⁰⁴ On the debate as to the true nature of conciliation — either a quasi-judicial process or an extension of negotiation — see Bowett, supra note 35, at 186–88, and Cot, ibid., 181–89.

²⁰⁵ See Report and Recommendations to the Governments of Iceland and Norway of the Conciliation Commission on the Continental Shelf Area Between Iceland and Jan Mayen Island (1981) 20 I.L.M. 797, and Agreement on the Continental Shelf Between Iceland and Jan Mayen, (Oslo, done Oct. 22, 1981, in force June 2, 1982), 21 I.L.M. 1222.

²⁰⁶ Bowett, supra note 35, at 188.

²⁰⁷ Contrast the judgment of the ICJ in the North Sea Continental Shelf cases, supra note 86, at 52–53.

²⁰⁸ As early as 1940, 200 such treaties had been concluded (Merrills, supra note 76, at 55). Among these unused procedures is the conciliation commission provided for in a 1914 agreement between the United States and the United Kingdom in respect of, inter alia, Canadian-U.S. disputes. See ABA-CBA Joint Working Group Report in ABA-CBA, supra note 106, at 29–30.

²⁰⁹ But to reiterate, only the process is “compulsory”; the outcome is not binding.

²¹⁰ Supra note 124.

²¹¹ Art. 8 and Annex, chap, 1, [1962] 2 UST 2312, TIAS No. 5200, 450 UNTS 82.

²¹² Arts. 297(2) (b) and (3)(b). Yet the exercise of the coastal state’s discretion in these matters is not to be questioned by the Commission (Arts. 297(2) (b) and (3)(c)). These provisions represent a trade-off with the “Group of 77,” who wanted these matters excluded from the scope of binding third party settlement (Merrills, supra note 76, at 123).

²¹³ Art. 298(1) (a).

²¹⁴ Bowett, supra note 35, at 189–90.

²¹⁵ This procedure is in theory unilaterally invocable but in practice is instituted by joint reference.

²¹⁶ 75–80 per cent of its recommendations have been accepted (Carroll, supra note 23, at 52).

²¹⁷ Agreement on Great Lakes Water Quality (Apr. 15, 1972 and Nov. 22, 1978) 23 UST 301, TIAS No. 7312, and 30 UST 1383, TIAS No. 9257.

²¹⁸ There were no new references to the Commission between 1977 and 1985 (LeMarquand, supra note 31, at 33).

²¹⁹ See text, supra 255 and at note 32.

²²⁰ For an account of some of the IJC references, see, e.g., Bloomfield, and Fitzgerald, , Boundary Water Problems of Canada and the United States (1958).Google Scholar

²²¹ Baxter, , “Settling Our Canadian-United States Differences: An American Perspective,” (1978) 1 Can.-U.S. L.J. 5, 6.Google Scholar

²²² See supra note 191.

²²³ See text, infra 296. Negotiation in its dispute avoidance guise is usually termed “consultation” (Merrills, supra note 76, at 2).

²²⁴ See note 2, supra.

²²⁵ Supra note 86, at 47.

²²⁶ [1984] I.C.J. Rep. 246, 299.

²²⁷ [1974] I.C.J. Rep. 3, 34 and 175, 205.

²²⁸ Arts. 74 and 83 respectively.

²²⁹ Art. 10, Montreal Rules on Water Pollution in an International Drainage Basin (Aug.-Sept. 1982) in I.L.A., Report of the Sixtieth Conference (1982).

²³⁰ See Sand, , “The Creation of Transnational Rules for Environmental Protection” in Bothe, (ed.), Trends in Environmental Policy and Law 311–30 (1980).Google Scholar

²³¹ See text, infra 309.

²³² Merrills, supra note 76, at 8.

²³³ Joint Working Group Report at 25 in ABA-CBA, supra note 106. Yet, as transboundary environmental issues generally have a higher priority in Canada than in the U.S., a certain imbalance in the personnel concerned with these matters exists which may frustrate initiatives at this level. This is slightly less so at the state-provincial level where the border states obviously have a greater interest in transboundary matters: see Stein, and Grenville-Wood, , Between Neighbors (1984).Google Scholar PubMed

²³⁴ Recommendation 51 of the Stockholm Conference’s Action Plan, in respect of shared water resources, recommended the creation of river basin commissions between interested states (reprinted in the British Institute of International and Comparative Law, Selected Documents on International Environmental Law (1975)).

²³⁵ In Canada-U.S. relations, there does seem to be a policy against such linkage: see Fox, supra note 29, at 214–15.

²³⁶ E.g., the conclusion in the UN’s Economic Commission for Europe of the Convention on Long-Range Transboundary Air Pollution (UN/ECE/GE 79–42960, reprinted in 6 Environmental Policy & L. 37–40).

²³⁷ Stein and Grenville-Wood, supra note 233, at iv.

²³⁸ This term is used by Howe, in “Transnational Regionalism: Energy Management in New England and the Maritimes,” (1980) 3 Can.-U.S. L.J. 139.Google Scholar

²³⁹ Stein and Grenville-Wood, supra note 233, at ix.

²⁴⁰ Ibid., 42–43.

²⁴¹ The Globe and Mail (Toronto), June 13, 1985, at 3.

²⁴² See text, supra 254.

²⁴³ Levin, supra note 10, at 19.

²⁴⁴ See supra note 91.

²⁴⁵ See Bilder, supra note 6, at 171–74, and Agreement on the Permanent and Definitive Solution to the International Problem of the Salinity of the Colorado River (Mexico-United States), Mexico City, Aug. 30, 1973, approving Minute No. 242 of the International Boundary and Water Commission, (1973), 24 UST 1968, 12 I.L.M. 1105.

²⁴⁶ In Levin, supra note 10, at 19–20, on the original U.S.-Mexico negotiations resulting in the Treaty Relating to the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande, in force Nov. 8, 1945, T.S. No. 994, 3 UNTS 313.

²⁴⁷ Allott, , “The International Court of Justice” in DDMI, supra note 1, at 128 Google Scholar. But as substantive international environmental law develops, it can only have a positive influence on this method.

²⁴⁸ Darwin, , “Negotiation,” in DDMI, supra note 1, at 77, 80.Google Scholar

²⁴⁹ Some of these procedures, such as notification, are also spoken of in the context of a duty to warn of impending hazards (e.g., Corfu Channel case, [1949] I.C.J. Rep. 4), but this duty is in response to an activity that has already taken place or a condition which is existing or imminent (often by accident or by Act of God). Such a duty is distinct from a duty to notify and consult at the planning stage, discussed herein, although to the extent that timely warning can allow for action to minimize the damage, it too has dispute avoidance potential. The ЕСЕ Convention on Long-Range Transboundary Air Pollution (supra note 236) does not express any such duty to warn; therefore, a state aggrieved by the recent accident at the Chernobyl nuclear facility, for example, would have to look to customary international law for the existence of such a duty.

²⁵⁰ The converse is not true: see, e.g., the Lac Lanoux arbitration (Spain v. France), [1959] I.L.R. 101, 131–32.

²⁵¹ For a thorough and fairly recent account, see Kirgis, , Prior Consultation in International Law (1983)Google Scholar, chapters II-IV, which deal specifically with the environmental and resources contexts.

²⁵² ECE Convention on Long-Range Transboundary Air Pollution, supra note 236, Art. 5, echoed in Memorandum of Intent, supra note 14, Art. 3, which states “significant risk or potential risk of causing or increasing transboundary air pollution.”

²⁵³ Nordic Convention, supra note 124, Arts. 1 and 5.

²⁵⁴ Mexico-U.S. Colorado River Agreement, supra note 245, Art. 9.

²⁵⁵ See Kirgis, supra note 251, at 359–60. The threshold will generally vary with the procedure concerned, prior consent requiring the highest threshold in theory.

²⁵⁶ Utton describes this situation of a state being the sole judge in its own cause as a “severe Achilles heel” in the process : “International Environmental Law and Consultation Mechanisms,” (1973) 12 Col. J. Transnat’l L. 56 at 66.

²⁵⁷ Council of Europe Consultative Assembly, Draft European Convention for the Protection of International Watercourses Against Pollution (Apr. 4, 1974), Art. 12, in CE Pari. Assembly Doc. 3417.

²⁵⁸ Springer makes the point that “there is a natural desire to avoid making the matter one of international concern before there is some reasonable expectation that the project will survive domestic criticism”: Springer, The International Law of Pollution 147 (1983).

²⁵⁹ Levin asserts that, in the absence of a specific provision, “under general principles of good faith the test of reasonableness would apply”: supra note 10, at 12.

²⁶⁰ See, e.g., ABA-CBA Joint Working Group Report at 19–23, in ABA-CBA, supra note 106, and Kirgis, supra note 251, at 368.

²⁶¹ Supra note 250, at 130.

²⁶² Kirgis, supra note 251, at 85–86.

²⁶³ Supra note 30.

²⁶⁴ Supra note 111.

²⁶⁵ A prior consent norm cannot be similarly inferred from Asian and African practice, apart from selected treaty provisions.

²⁶⁶ see e.g., Springer, supra note 358, at 148–49, and Art. 8(1) of the ILA’s Montreal Rules of International Law Applicable to Transfrontier Pollution, which purport to restate general international law (Art. 1 and Comment), only uses the permissive “should” (ILA, Report of the Sixtieth Conference (1982)).

²⁶⁷ The ILA’s Committee on Legal Aspects of the Conservation of the Environment, which drafted the Montreal Rules on Transfrontier Pollution reported that “[w]ith respect to the use of the waters of international drainage basins, the principle of consultation and negotiation has become a rule of customary international law” (ILA, ibid., 175). With respect to transfrontier pollution (water and air), see Arts. 7 and 8 and Comment of the Montreal Rules on Transfrontier Pollution (ibid.).

²⁶⁸ See Kirgis, supra note 251, chapters 3 and 4.

²⁶⁹ See, in particular, the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (Dec. 29, 1972), [1975] 26 UST 2403, TIAS No. 8165, (1972) 11 I.L.M. 1294.

²⁷⁰ Kirgis, supra note 251, at 131.

²⁷¹ Ibid., 131.

²⁷² As to this last-mentioned activity, Kirgis cites Lagoni, , “Oil and Gas Deposits Across National Frontiers,” (1979) 73 Am. J. Int’l L. 215.CrossRef Google Scholar

²⁷³ See, e.g., Lac Lanoux arbitration, supra note 250, at 128, and Bourne, , “Procedure in the Development of International Drainage Basins: The Duty to Consult and to Negotiate,” (1972) 10 Canadian Yearbook of International Law 212, 224–25.Google Scholar

²⁷⁴ Bourne labels this point contentious (ibid., 225). See also Kirgis, supra note 251, at 361. The desire for meaningful negotiations is countered by the policy that the affected state not use its right of consultation to indefinitely delay the proposed action: see, e.g., para. 8 of the Annex to the OECD Recommendation of the Council on Principles Concerning Transfrontier Pollution, OECD doc. C(84) 224, reprinted in OECD, supra note 126, at 16.

²⁷⁵ Supra note 250, at 134 and 141.

²⁷⁶ Bourne, supra note 273, at 231. This conclusion does not mean that the acting state cannot subsequently be held liable at international law for “damages caused by it acting in a manner contrary to that proposed” by the other state, but the liability would flow from the act itself and not from its failure to accept the other state’s reasonable proposals (Bourne, ibid., 229–30).

²⁷⁷ Kirgis, supra note 251, at 45 on Art. 7(2) of the Indus Water Treaty between the Government of India and the Government of Pakistan and the IBRD (Karachi, Sept. 19, 1960), 419 UNTS No. 6032.

²⁷⁸ Kirgis, ibid., 370.

²⁷⁹ For example, that formulation appeared in a “draft principle 20” at the Stockholm Conference on the Human Environment in 1972 but did not win acceptance, due in particular to Brazil’s objections : see Schneider, supra note 7, at 51 and 159. Springer quotes Kiss as stating that “[o]ne could hardly speak at present of an existing rule in positive international law which could impose the duty upon States to inform those who could be concerned, of activities which can be prejudicial to their sovereignty or affect environmental quality”: Springer, supra note 858, at 147, citing Kiss, , Survey of Current Developments in International Environmental Law, IUCN Environmental Policy and Law paper, No. 10 (1976), at 31.Google Scholar

²⁸⁰ Schneider, supra note 7, at 162.

²⁸¹ Which purport to restate general international law: see supra note 266.

²⁸² Art. 7(1), supra note 266. It goes on to specify the content of that obligation so as to make the obligation a meaningful one: the acting state shall, at least upon request, communicate “such pertinent information as will permit the recipient to make an assessment of the probable effects of the planned activity.”

²⁸³ Kirgis, supra note 251, at 361.

²⁸⁴ See Levin, supra note 10, at 12.

²⁸⁵ (Mar. 26, 1975) 26 UST 540, TIAS No. 8056.

²⁸⁶ Ibid., Art. 3.

²⁸⁷ Springer, supra note 258, at 145.

²⁸⁸ Kirgis, relying in part on the Fisheries Jurisdiction cases, contends that the duty to take account of another state’s interest entails the duty to consult unless it is clear that the contemplated action would not significantly affect the interests of the other state(s): supra note 251, at 362–66.

²⁸⁹ Reprinted in (1972) 11 I.L.M. 1416. It speaks of the responsibility of states “to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction” (emphasis added).

²⁹⁰ “In some respects, EIA in its most general form is hard to distinguish from what governments do already when making decisions” : Wandesforde-Smith, “Environmental Impact Assessment,” in Bothe, supra note 230, at 101, 102.

²⁹¹ Ibid., 102.

²⁹² E.g., United States, Canada, Federal Republic of Germany, Australia. For a brief comparative survey, see ibid., 101–29.

²⁹³ See supra note 290.

²⁹⁴ The parties themselves, however, do not prepare EIS’s.

²⁹⁵ Art. 1, reprinted in (1978) 17 I.L.M. 1082.

²⁹⁶ Senate Resolution 49, July 21, 1978, ibid.

²⁹⁷ Springer, supra note 258, at 146. See also Levin’s discussion of the Council of Europe’s proposal, in the field of frontier air pollution, for the establishment of a supranational Advisory Panel to assess proposed industrial or de-velopment projects: supra note 10, at 31.

²⁹⁸ Serwer, , “International Cooperation for Pollution Control,” in Hargrove, supra note 21, at 178, 201.Google Scholar And see Horberry, , “The Accountability of Development Assistance Agencies: The Case of Environmental Policy,” in (1985) 12 Ecology L.Q. 817 Google Scholar, and for a critical view of the multilateral development banks in this field, see Rich, , “The Multilateral Development Banks : Environmental Policy, and the United States,” (1985) 12 Ecology L.Q. 681.Google Scholar

²⁹⁹ Note that while such requirements may on the one hand help to avoid international environmental disputes, they may, on the other, create another type of international dispute relating to issues of extraterritoriality. See, e.g., note of the view of the Republic of the Philippines to a potential refusal of the U.S. Nuclear Regulatory Commission, on environmental grounds, to issue an export licence for a nuclear-generating facility, in Hunter, , “The Filipino Nuke Stays Afloat While the D.C. Circuit Remains at Sea: The Need for Environmental Impact Statements Covering Foreign Territories,” (1982–83) 15 N.Y.U.J. Int’l L. and Politics 435, n. 110.Google Scholar

³⁰⁰ See respectively, (1985) 14 Environmental Policy & L. 48–49, and Principle 6(f) (UNEP/W.G.107/3 (1984)), in (1984) 13 Environmental Policy & L. 75.

³⁰¹ Art. 7(2) supra note 266.

³⁰² Art. 7, Council Directive on the assessment of the effects of certain public and private projects on the environment, June 27, 1985, EEC Doc. 85/337 in (1985) Off’l J. of the EC, Legislation 175/40.

³⁰³ (Emphasis added). 42 USC s. 4332(2) (c).

³⁰⁴ (1979) 44 Fed. Reg. 1957, reprinted in (1978) 18 I.L.M. 154.

³⁰⁵ Thereby raising potential constitutional questions in addition to leaving the initial question unanswered: see Sheridan, , “The Extraterritorial Application of NEPA under Executive Order 12, 114,” (1980 13 Vand. J. Transnat. L. 173. 215–17.Google Scholar

³⁰⁶ Ibid., 215. See generally ibid, and Hunter, supra note 299, esp. n. 9.

³⁰⁷ E.g., Wilderness Society v. Morton, 463 F.2d 1261 (D.C. Gir. 1972). But that case involved a concurrent U.S. impact and the Canadian intervenors had an interest sufficiently antagonistic to the interests of the American environmentalist plaintiffs.

³⁰⁸ June 22, 1983, Registration SOR/84–467.

³⁰⁹ Ibid., s. 4(1) (a).

³¹⁰ 42 USC s. 7415 (1982).

³¹¹ 33 USC s. 1320(a) (1982).

³¹² S.C. 1970-71-72, c. 47, amended by 1980-81-82-83, c. 45, s. 3. See also s. 49.1 of the Quebec Environmental Quality Act, R.S.Q., c. Q-2, amended by S.Q. 1982, c. 25, s. 6.

³¹³ The Canadian provision does not appear to provide for any participation of the foreign country in this procedure.

³¹⁴ Wetstone, and Rosencranz, , Acid Rain in Europe and North America 103 (1983).Google Scholar

³¹⁵ See discussion in ibid. 103–4.

³¹⁶ See text supra 300-01. And see Kirgis, supra note 251, at 14, on the question of how to characterize a consent requirement.

³¹⁷ See Wetstone and Rosencranz, supra note 314, at 161, and also Kirgis, supra note 251, at 13.

³¹⁸ See, e.g., Levin, supra note 10, at 12–13, and Utton, supra note 256.

³¹⁹ Kirgis, supra note 251, at 375.

³²⁰ For two examples, see Kay, and Jacobson, , Environmental Protection: The International Dimension Ch. 1 (1983)Google Scholar, and Stein, , “The Potential of Regional Organizations in Managing Man’s Environment,” in Hargrove, , supra note 21, at 253.Google Scholar

³²¹ Bilder, supra note 6, at 229.

³²² See Kay and Jacobson, supra note 320, at 14–15. The scientific and technical underpinnings of international environmental disputes have already been commented upon (see text, supra 251–53).

³²³ See Sand, supra note 230. Of note, in particular, are the various influential guidelines and codes of practice of organizations such as the World Health Organization (WHO), the World Meteorolgical Organization (WMO), the International Atomic Energy Agency (IAEA) (e.g., on disposal of nuclear wastes in the sea), the International Labour Organization (ILO) (e.g., on regulation of the environment of the workplace), and the International Maritime Organization (IMO) (e.g., International Effluent Standards and Guidelines for Performance Tests for Sewage Treatment Plants ).

³²⁴ Merrills, supra note 76, at 174.

³²⁵ See Caldwell, , “Beyond Environmental Diplomacy: The Changing Institutional Structure of International Cooperation,” at 3 in Environmental Dipplomacy: The Management and Resolution of Transfrontier Environmental Problems (Seminar Proceedings, Nov. 21–27, 1985, Ennis, Ireland, Centre for Environmental Management and Planning, University of Aberdeen).Google Scholar

³²⁶ Bilder, supra note 6, at 229.

³²⁷ This careful guarding of state sovereignty must be accepted as a fact of life in this field and any attempt at compulsory or binding settlement should be tailored where possible to accommodate this concern.

³²⁸ See text, supra 283.

³²⁹ Schneider, supra note 7, at 175.

³³⁰ Cohen, supra note 121, at 17.

³³¹ DDMI Report, supra note 1, at 21.

³³² Springer, supra note 82, at 11.

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The Management of International Environmental Disputes in the Context of Canada-United States Relations: A Survey and Evaluation of Techniques and Mechanisms

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