¹ See Jutta Brunnée & Stephen J. Toope, Environmental Security and Freshwater Resources: A Case for International Ecosystem Law, 5 Y.B. Int’l Envtl. L. 41 (1994). We therefore leave aside, for the time being, whether a shared freshwater regime must be rooted in identified common interests of states or in a more generalized appreciation of good that might transcend state interests. This issue will be addressed in the text at and notes 91–96 infra.

² We use the term “shared” here simply to refer to the physical sharing of freshwater supplies, and not in the technical sense the term “shared natural resource” has acquired in the legal debate. On the concept as a technical term, see Brunnee & Toope, supra note 1, at 58–59.

³ Richard UUman, Redefining Security, 8 Int’l Security 129, 133 (1983).

⁴ David Deudney, The Case Against Linking Environmental Degradation and National Security, 19 Millennium 461, 461 (1990).

⁵ Geoffrey Dabelko & David Dabelko, Environmental Security: Issues of Conflict and Redefinition, in Woodrow Wilson Center, Environmental Change and Security Project Report 3, 8 (1995).

⁶ Brunnee & Toope, supra note 1, at 46.

⁷ In light of its greater currency, we retain the term “environmental security” rather than adopt alternative terms such as “ecological security.” On the latter concept, see, e.g., Alexandre Timoshenko, Ecological Security: Global Change Paradigm, 1 Colo. J. Int’l Envtl. L. & Pol’y 127 (1990).

⁸ See Simon Dalby, Security, Modernity, Ecology: The Dilemmas of Post-Cold War Security Discourse, Alternatives, Winter 1992, at 95; see also Norman Myers, Ultimate Security: The Environmental Basis of Political Stability 31 (1993).

⁹ See infra note 14.

¹⁰ We have suggested that an ecosystem approach “requires consideration of whole systems rather than individual components” and that this, in turn, necessitates “management approaches that are broad-based in a spatial sense,” as well as based on criteria for “human interaction with and use of the environment [that] respect the need for maintaining ‘ecosystem integrity’.” Brunnee & Toope, supra note 1, at 55.

¹¹ For a useful definition of international institutions, see Robert O. Keohane, Neoliberal Institutionalism: A Perspective on World Politics, in International Institutions and State Power 1 (Robert O. Keohane ed., 1989). See also Oran R. Young, International Regimes: Toward a New Theory of Institutions, 39 World Pol. 104 (1986); Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 AJIL 205, 220–26 (1993); and John K. Setear, An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law, 37 Harv. Int’l L.J. 139, 142–47 (1996).

¹² For an extensive discussion, see Brunnee & Toope, supra note 1, at 65–75.

¹³ These principles encapsulate and implement the legal values we seek to promote. Sustainable development, intergenerational equity, the precautionary principle and the concept of common concern are premised on a commitment to equity, fairness and justice. The drainage basin focus is rooted in a desire for transparency, as well as efficacy. Each of these values is also promoted in the approach to regime structuring we argue for in the text at and notes 91–96 infra. On the role of values in generating legal norms, see Lon L. Fuller, The Morality of Law (rev. ed. 1969).

¹⁴ We are mindful that many of the proposals made in this paper may be perceived as of questionable immediate relevance to developing countries. For this reason, the third phase of our project is designed to test our assumptions and proposals in a setting involving developing countries sharing a freshwater resource in a conflictual context, the Nile Basin.

¹⁵ See Brunnée & Toope, supra note 1, at 73–74. On the origins of the concept of common, but differentiated, obligations and its connection to the concept of common concern, see Jutta Brunnee, A Conceptual Framework for an International Forests Convention: Customary Law and Emerging Principles, in Global Forests and International Environmental Law 41, 60–61 (Canadian Council on International Law ed., 1996).

¹⁶ The merits of various approaches to treaty making are exhaustively examined in Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995). Our focus is broader in that we propose to examine regime formation along a continuum from contextual regimes to binding legal regimes.

¹⁷ Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, in International Regimes 1, 2 (Stephen D. Krasner ed., 1983).

¹⁸ See, e.g., Robert O. Keohane, The Demand for International Regimes, 36 Int’l Org. 325, 338–39 (1982); and Krasner, supra note 17.

¹⁹ John Gerard Ruggie, International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order, 36 Int’l Org. 379, 382 (1982).

²⁰ Oran R. Young, International Cooperation: Building Regimes for Natural Resources and the Environment, passim (1989).

²¹ Myres S. McDougal & Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, in 2 The Strategy of World Order 45, 53 (Richard A. Falk & Saul H. Mendlovitz eds., 1966) [hereinafter World Order], quoted in Friedrich Kratochwil, Rules, Norms, and Decisions 194 (1989); see also Harold D. Lasswell & Myres S. McDougal, Jurisprudence for a Free Society (1992). For useful commentaries on McDougal and Lasswell’s work, see Slaughter Burley, supra note 11, at 209–11; and Michael Byers, Custom, Power and the Power of Rules: Customary International Law from an Interdisciplinary Perspective, 17 Mich. J. Int’l L. 109, 123–24 (1995).

²² Kratochwil, supra note 21, at 196, 200.

²³ On this point, see also Chayes & Chayes, supra note 16, at 112–18.

²⁴ See Phillip R. Trimble, International Law, World Order, and Critical Studies, 42 Stan. L. Rev. 811, 816 (1990).

²⁵ See Michael Oakeshott, On Human Conduct 108–14, 119–21 (1975) (on civil and transactional associations, and practices).

²⁶ See Kratochwil, supra note 21, at 254.

²⁷ See Stephen J. Toope, The Convention on the Rights of the Child: Implications for Canada, in Children’s Rights: A Comparative Perspective 33 (Michael D. A. Freeman ed., 1996); and Cynthia Price Cohen, Stuart N. Hart & Susan M. Kosloske, The UN Convention on the Rights of the Child: Developing an Information Model, to Computerize the Monitoring of Treaty Compliance, 14 Hum. Rts. Q. 216, 220 (1992).

²⁸ We admit, however, that further normative elaboration is not inevitable, or necessarily desirable. Contextual regimes have independent value and should not be viewed as inchoate even if binding rules of law fail to emerge in certain settings.

²⁹ Stephen J. Toope, Confronting Indeterminacy: Challenges to International Legal Theory, 19 Can. Council Int’l L., Proc. 209, 211 (1990).

³⁰ Fuller, supra note 13, passim, especially at 145–51.

³¹ Kratochwil, supra note 21, at 59.

³² Thomas Franck articulated a similar argument in terms of fairness as the central factor in explaining normativity and promoting norm compliance. Thomas M. Franck, Fairness in International Law and Institutions 23–24 (1995) (arguing that fairness derives its power from its two key components, legitimacy and justice; a legal norm invites compliance to the extent that it balances the need for “order”—legitimacy resulting from the “right process”—and the need for “change”—rules reflecting distributive justice). See also Chayes & Chaves, supra note 16, at 127–34. For a useful discussion of norm legitimation, see Roderick A. Macdonald, Office Politics, 40 U. Toronto L.J. 419 (1990).

³³ Oran R. Young, Regime Dynamics: The Rise and Fall of International Regimes, 36 Int’l Org. 277, 277 (1982). See also Krasner, supra note 17, at 2.

³⁴ See Keohane, supra note 18.

³⁵ See Eyal Benvenisti, Collective Action in the Utilization of Shared Freshwater: The Challenges of International Water Resources Law, 90 AJIL 384, 400–04 (1996).

³⁶ Young, supra note 33, at 280.

³⁷ Stephen D. Krasner, Regimes and the Limits of Realism: Regimes as Autonomous Variables, 36 Int’l Org. 497, 500 (1982).

³⁸ Stephan Haggard & Beth A. Simmons, Theories of International Regimes, 41 Int’l Org. 492, 509 (1987).

³⁹ James F. Keeley, Toward a Foucauldian Analysis of International Regimes, 44 Int’l Org. 83, 98–99 (1990).

⁴⁰ See, e.g., Charles Lipson, The Transformation of Trade: The Sources and Effects of Regime Change, 36 Int’l Org. 417, 437 (1982).

⁴¹ The explanatory power of a hegemonic theory has been convincingly questioned by Duncan Snidal, The Limits of Hegemonic Stability Theory, 39 Int’l Org. 579 (1985); Peter M. Haas, Do Regimes Matter? Epistemic Communities and Mediterranean Pollution Control, 43 Int’l Org. 377 (1989); and even by a foremost proponent of rational choice theory, of which hegemonic regime stability has traditionally been a part, Robert O. Keohane, After Hegemony (1984).

⁴² See the thoughtful discussion of the role of power in international relations and international law in Byers, supra note 21, at 112–27.

⁴³ Slaughter Burley, supra note 11, especially at 207–37, has comprehensively studied current debates among international relations theorists and how they may affect our understanding of international law. See also Kenneth W. Abbott, Modem International Relations Theory: A Prospectus for International Lawyers, 14 Yale J. Int’l L. 335 (1989).

⁴⁴ First, the notion that states can actually identify and articulate coherent interests is a rationalist assumption that is not empirically demonstrable. In any event, even within a given state, interests may be diverse and incommensurate. Second, as Young and Osherenko have argued: “Advocates of transcendent goals may … persuade policy makers that what promotes the common good serves a state’s national interests.” Oran R. Young & Gail Osherenko, Polar Politics: Creating International Environmental Regimes 240 (1993). Third, as regimes form and evolve, common interests are identified and promoted, which allows the regime to provide a counterweight to individual assessments of state interest. States may also follow specific rules when there is a long-term interest in the maintenance of the rule of law in the international milieu.

⁴⁵ See Martti Koskenniemi, From Apology to Utopia 8 (1989); Young & Osherenko, supra note 44; and Franck, supra note 32, at 24.

⁴⁶ Epistemic communities will not coalesce in every issue-area. Governments may actively discourage participation in transnational networks and, given the resource constraints of many developing societies, it may not be possible for inclusive networks to form and operate. Even in the developed world, cuts in public spending may hamstring nascent, and. even well-established, epistemic communities. In June 1996, the Canada-U.S. International Joint Commission complained that budget cuts in both countries put at risk many of the improvements to Great Lakes water quality, and stressed that their effect on research and advocacy organizations would be to hamper further progress. See International Joint Commission, Eighth Biennial Report under the Great Lakes Water Quality Agreement of 1978, Executive Summary (1996).

⁴⁷ See Young & Osherenko, supra note 44, at 245.

⁴⁸ Implicit in this suggestion is the view that epistemic communities are not limited to “scientific” or “technological” groupings. Although most case studies of epistemic communities have focused on this type of expert group, proponents of the theory have acknowledged that “policy makers” could form an epistemic community. See id. We suggest that international lawyers can be equated with policy makers for these purposes. One need only consider the contributions of the International Law Association (ILA) and the International Law Commission (ILC) to the evolution of freshwater regimes, or the efforts of the Commission on Environmental Law of the World Conservation Union (IUCN) developing an International Covenant on Environment and Development (1995), discussed in detail at.

⁴⁹ Haas, supra note 41, at 380.

⁵⁰ Id. at 377. Given the posited role of influence, the idea of the epistemic community is closely related to the broader argument of the power of elites to create and shape regimes. See Donald J. Puchala & Raymond F. Hopkins, International Regimes: Lessons from Inductive Analysis, 36 Int’l Org. 245, 247 (1982); see also Myres S. McDougal & Harold D. Lasswell, Some Basic Theoretical Concepts about International Law: A Policy-Oriented Framework of Inquiry, in World Order, supra note 21, at 116, 129 (on elites and legal normativity).

⁵¹ Haas, supra note 41, at 384.

⁵² Lynton K. Caldwell, Between Two Worlds: Science, The Environmental Movement, and Policy Choice 23 (1990); Myron L. Scott, Two Models for International Environmental Cooperation, 22 Envtl. L. 334, 354 (1992) (book review).

⁵³ Tony Brenton, The Greening of Machiavelli 256 (1994).

⁵⁴ See Lasswell & McDougal, supra note 21; Young & Osherenko, supra note 44, at 234; Oran R. Young, The politics of international regime formation: managing natural resources and the environment, 43 Int’l Org. 349, 355 (1989); and Harold K. Jacobson & Edith Brown Weiss, Strengthening Compliance with International Environmental Accords: Preliminary Observations from a Collaborative Project, 1 Global Governance 119, 126 (1995).

⁵⁵ On NGOs and the implementation of treaty norms, see Jacobson & Weiss, supra note 54, at 129; see also Chayes & Chayes, supra note 16, at 250–70.

⁵⁶ Consider the influential role of NGOs as diverse as the IUCN and the World Wildlife Fund.

⁵⁷ See Suzanne Ogden, China’s Unresolved Issues (1989); and Jacobson & Weiss, supra note 54, at 142.

⁵⁸ Young, supra note 54, at 366–73.

⁵⁹ Keohane, supra note 18, at 334.

⁶⁰ See text at and notes 105–21 infra.

⁶¹ This notion is adapted from Young, supra note 54, at 355.

⁶² See also Chaves & Chayes, supra note 16, at 122–23 (pointing to the importance of dynamic normative processes).

⁶³ Ruggie, supra note 19, at 382.

⁶⁴ In Brunnée & Toope, supra note 1, at 53–57, we argued that these concepts cannot ensure environmental security and must therefore be complemented by or reinterpreted in light of the ecosystem-oriented principles outlined above.

⁶⁵ See Lucius Caflisch, The Law of International Waterways in Its Institutional Aspects, in Im Dienste der Gemein-Schaft—Festschrift für Dietrich Schindler Zum 65. Geburtstag 21, 27–30 (Walter Haller et al. eds., 1989); Joseph W. Dellapenna, Treaties as Instruments for Managing Internationally-Shared Water Resources: Restricted Sovereignty vs. Community of Property, 26 Case W. Res. J. Int’l L. 27, 42–47 (1994).

⁶⁶ On navigation, see, e.g., Congress of Vienna, Final Act, June 9, 1815, Art. 32, Annex 16B, 64 Consol. TS 454; Revised Convention on the Navigation of the Rhine, Oct. 17, 1868, 138 Consol. TS 167; and Strasbourg Convention to Amend the Revised Convention for Rhine Navigation, Nov. 20, 1963, 1967 Gr. Brit. TS No. 66; Additional Protocol to the Revised Convention on Navigation on the Rhine, Oct. 25, 1972, 1975 Gr. Brit. TS No. 86; Convention Concerning the Regime of Navigation on the Danube, Aug. 18, 1948, 33 UNTS 196. On fishing, see, e.g., Convention Concerning Fishing in the Rhine, Dec. 9, 1869, Baden-Switz., reprinted in 9 International Protection of the Environment—Treaties and Related Documents 4695 (Bernd Raster & Bruno Simma eds., 1977) [hereinafter Ruster & Simma]; Convention Regulating Fisheries in Boundary Waters, Nov. 5, 1892, Luxembourg-Prussia, reprinted in id. at 4750; Convention Concerning Fishing in the Waters of the Danube, Jan. 29, 1958, United Nations, Legislative Texts and Treaty Provisions, UN Doc. ST/LEG/SER.B/12, at 427 (1963).

⁶⁷ The following agreements, inter alia, focus primarily on apportionment of water: Convention Providing for the Equitable Distribution of the Waters of the Rio Grande for Irrigation Purposes, May 21, 1906, U.S.-Mex., 34 Stat. 2953 (apportionment); Treaty Relating to the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande, Nov. 14, 1944, U.S.-Mex., 59 Stat. 1219, 3 UNTS 313 (apportionment and flood control) [hereinafter Colorado Treaty]; Agreement for the Full Utilization of the Nile Waters, Nov. 8, 1959, U. Arab Rep.-Sudan, 453 UNTS 51 (apportionment) [hereinafter Nile Agreement]; Indus Waters Treaty, Sept. 19, 1960, India-Pak., 419 UNTS 125 (apportionment and flood control); Interim Agreement on Sharing of the Ganges’ Waters, Nov. 5, 1977, India-Bangladesh, reprinted in 17 ILM 103 (1978) (apportionment) [hereinafter Ganges Agreement]. For an agreement focused primarily on hydroelectricity, see Agreement on Parana River Projects, Oct. 19, 1979, Arg.-Brazil-Para., reprinted in 19 ILM 615 (1980) [hereinafter Parana River Agreement].

⁶⁸ See, e.g., Convention on the Protection of the Rhine against Chemical Pollution, Dec. 3, 1976, 1124 UNTS 375, reprinted in 16 ILM 242 (1977) [hereinafter Rhine Chemical Convention]; and Convention on the Protection of the Rhine against Pollution by Chlorides, Dec. 3, 1976, reprinted in 16 ILM at 265 [hereinafter Rhine Chlorides Convention].

⁶⁹ For example, the Treaty Relating to Boundary Waters and Questions Arising along the Boundary, Jan. 11, 1909, U.S.-Can., 36 Stat. 2448 [hereinafter Boundary Waters Treaty], focused only on physical watercourses and covered only waters straddling the boundary, explicitly excluding border-crossing waters. See also Nile Agreement, Indus Waters Treaty, Ganges Agreement, and Parana River Agreement, all supra note 67.

⁷⁰ For example, only portions of the relevant rivers or river basins are covered by the Colorado Treaty, Nile Agreement, and Ganges Agreement, all supra note 67.

⁷¹ See, e.g., Colorado Treaty, supra note 67, Art. 10; Indus Waters Treaty, supra note 67, Arts. II, III and Annexes B, C, D; Nile Agreement, supra note 67, Art. I; Ganges Agreement, supra note 67, Art. II.

⁷² See, e.g., Nile Agreement, supra note 67, Art. I (treating Egypt’s and Sudan’s allocations as “established rights”). By contrast, the Colorado Treaty, supra note 67, Arts. 2, 24, 25, allows for adjustment through the device of “minutes” adopted in the International and Boundary Water Commission; and the Ganges Agreement, supra note 67, Art. XIII, made provision for periodic review of the entire treaty.

⁷³ See Brunnee & Toope, supra note 1, at 53–54.

⁷⁴ This is reflected in the titles of the most influential efforts to develop generally accepted principles of international water law: the ILA Helsinki Rules on the Uses of Waters of International Rivers, 52 ILA, Conference Report 484 (1966); and the ILC draft articles on the law of the non-navigational uses of international watercourses, Report of the International Law Commission on the work of its forty-sixth session, UN GAOR, 49th Sess., Supp. No. 10, at 197, UN Doc. A/49/10 (1994) [hereinafter ILC 1994], It is remarkable in itself that such work on non-navigational uses did not begin until the 1960s. See R. K. Paisley & T. L. McDaniels, International Water Law, Acceptable Pollution Risk and the Tatshenshini River, 35 Nat. Resources J. III, 118 (1995).

⁷⁵ See Brunnee & Toope, supra note 1, at 53–54. For a comprehensive list of agreements incorporating the “no significant (appreciable) harm” rule, see Report of the International Law Commission on the work of its fortieth session, [1988] 2 Y.B. Int’l L. Comm’n 36, UN Doc. A/CN.4/SER.A/1988/Add.1(Part 2). For a comprehensive review of agreements reflecting the equitable utilization principle, see Stephen C. McCaffrey, Second Report on the Law of the Non-Navigational Uses of International Watercourses, [1986] 2 Y.B. Int’l L. Comm’n, pt 1, at 87, 103, UN Doc. A/CN.4/SER.A/1986/Add.1(Part 1).

⁷⁶ See Patricia W. Birnie & Alan E. Boyle, International Law and the Environment 234–40 (1992).

⁷⁷ See, e.g., the U.S.-Canada International Joint Commission (IJC) established by the 1909 Boundary Waters Treaty, supra note 69. For an overview of existing institutions, see Stephen C. McCaffrey, Sixth Report on the Law of the Non-Navigational Uses of International Watercourses, [1990] 2 Y.B. Int’l L. Comm’n, pt. 1, at 41, 42–52, UN Doc. A/CN.4/SER.A/1990/Add.1(Part 1) [hereinafter McCaffrey, Sixth Report].

⁷⁸ Although a caveat as to the diversity of organizational structures and circumstances is usually registered, the literature contains a variety of classifications of watercourse organizations. For example, Radosevich distinguishes five basic features: (1) geographic jurisdiction (e.g., national boundaries, drainage basin); (2) form (informal, formal, autonomous); (3) duration (temporary, fixed term, permanent); (4) membership (bipartite, multipartite, including all riparians); and (5) subject matter (traditional issues, e.g., navigation, flood control, or development issues, e.g., planning allocation, optimum use). He suggests that institutional functions can range from negotiation to implementation. See George E. Radosevich, Implementation: Joint Institutional Management and Remedies in Domestic Tribunals (Articles 26–28, 30–32), 3 Colo. J. Int’l Envtl. L. & Pol’y 261, 262 (1992). In a 1992 study, Caponera concludes that the most common features of watercourse organizations are (1) recommendatory and advisory, as opposed to executive, powers; (2) indefinite or long duration, facilitating adaptation to change and new requirements; (3) authority to undertake or coordinate studies and investigations, leading to recommendations; (4) technical expertise of secretariat staff, preventing domination of political influence, which is concentrated at the commissioners’ level; (5) permanent headquarters and diplomatic immunity for commission and secretariat staff; (6) judiciary powers to settle disputes, and to decide on apportionment issues and other matters. See Dante Caponera, Principles of Water Law and Administration 237 (1992), Caflisch develops a “typology of institutional mechanisms” that distinguishes (1) structure and composition (one main, usually single-purpose, body as opposed to hierarchically structured entities with several organs; agencies consisting of different national sections or one joint unit); (2) functions (forum for negotiations; planning, decision-making and implementation powers; single and multipurpose); and (3) legal status. See Caflisch, supra note 65, at 23–26.

⁷⁹ For example, in its 1911 resolution, “International Regulations regarding the Use of International Watercourses,” quoted in 24 Annuaire de l’Institut de Droit International 365–67 (1991), the Institut recommended “that the interested States appoint permanent joint commissions, which shall render decisions, or at least shall give their opinion, when … serious consequences might result in that part of the stream situated in the territory of [another] State.”

⁸⁰ See text at and notes 99–101 infra.

⁸¹ See Birnie & Boyle, supra note 76, at 241.

⁸² Some of the older agreements are altogether silent on the issue, e.g., the Nile Agreement, supra note 67. Some agreements use existing water commissions in the resolution of disputes, such as those involving the U.S.-Canada IJC, which was originally vested with investigative and arbitral functions by the Boundary Waters Treaty, supra note 69, Arts. IX, X; see also the role of the Permanent Indus Commission envisaged in the Indus Waters Treaty, supra note 67, Art. IX; and the Ganges Agreement, supra note 67, Art. VII. The most common approach appears to be to provide for highly formal procedures, running the spectrum from consultation and negotiation to international arbitration or adjudication. See McCaffrey, Sixth Report, supra note 77, at 66–75.

⁸³ In particular, the 1909 Boundary Waters Treaty, supra note 69, which proved sufficiendy flexible to be adapted to new concerns, ultimately spawning innovative approaches such as those developed under the Great Lakes Water Quality Agreements. See text at and notes 157–70 infra.

⁸⁴ With respect to the requirements of an ecosystem approach, see text at note 12 supra.

⁸⁵ See Brunnée & Toope, supra note 1, at 53–54.

⁸⁶ See Benvenisti, supra note 35, at 400.

⁸⁷ In note 83 supra, we noted that the 1909 Boundary Waters Treaty appears to contradict this assertion by having spawned the Great Lakes Water Quality Agreements. However, the very fact that the later Agreements came to be perceived as necessary in the 1970s and moved far beyond the narrow parameters of the original Treaty, in response to the recognized need for a more broadly based and ecosystem-oriented framework, tends to support our argument. See also text at and notes 158–70 infra.

⁸⁸ See text at notes 85–87 supra.

⁸⁹ For example, the 1977 Ganges Agreement, supra note 67, focused strictly on apportionment of water quantities and fell into desuetude after 1985. See M. Asafuddowlah, Sharing of Transboundary Rivers: The Ganges Tragedy, in The Peaceful Management of Transboundary Resources 209 (G. H. Blake et al. eds., 1995). Benvenisti, supra note 35, at 399, suggests that water treaties have tended to be seen as discrete, rather than iterative, transactions, with emphasis placed on specific allocation rules. Applying insights from game theory, he finds that cooperation in the utilization of water resources must be structured as a long-term effort.

⁹⁰ See text at and notes 120–22 infra.

⁹¹ Brunnee & Toope, supra note 1, at 55.

⁹² Unless otherwise indicated, these conclusions can be found in id. at 75–76.

⁹³ Id. at 72–73.

⁹⁴ at 73–75.

⁹⁵ Id. at 65–70.

⁹⁶ We have already suggested that international lawyers may actually form epistemic communities in certain issue-areas. This idea is in no way radical. For generations, it has been accepted that the writings of the “most highly qualified publicists” are at least a subsidiary source of international law. See International Court of Justice, Statute Art. 38(1) (d). We would argue that the rhetoric of “sources” in international law has been a limiting factor on its progressive development. However, the theory of epistemic communities confirms the role of international lawyers in the formulation of principles that, when promoted through various regimes, may ultimately harden into binding norms of international law.

⁹⁷ See text at note 12 supra.

⁹⁸ We will suggest that the framework-protocol model is particularly suited to providing such procedural ecosystem orientation within binding regimes, while also facilitating the framing of the regime according to substantive ecosystem principles. See text at and notes 190–96 infra.

⁹⁹ See Katharina Kummer, Providing Incentives to Comply with Multilateral Environmental Agreements: An Alternative to Sanctions?, 3 Eur. Envtl. L. Rev. 256, 257 (1994).

¹⁰⁰ See Alan E. Boyle, Saving the World? Implementation and Enforcement of International Environmental Law Through International Institutions, 3 J. Envtl. L. 229, 231 (1991).

¹⁰¹ See, e.g., Joseph S. Clark & Harry K. Schwartz, World Peace Through Law: The Lawyer’s Job, 56 A.B.A. J. 953 (1970); Ved P. Nanda, Emerging Trends in the Use of International Water Resources, 6 Denv. J. Int’l L. & Pol’y 239 (1976); A. O. Adede, Law of the Sea—Developing Countries’ Contribution to the Development of the Institutional Arrangements for the International Sea-Bed Authority, 4 Brooklyn J. Int’l L. 1 (1977); and Ivan A. Vlasic, Disarmament Decade, Outer Space and International Law, 26 McGill L.J. 135 (1981).

¹⁰² This effect was illustrated by the recent experience of the Intergovernmental Panel on Climate Change (IPCC). See Oran R. Young, International Governance: Protecting the Environment in a Stateless Society 39–42 (1994); Daniel B. Bodansky, The Emerging Climate Change Regime, 20 Ann. Rev. Energy & Env’t 425, 448 (1995).

¹⁰³ See text at notes 93–94 supra.

¹⁰⁴ See Boyle, supranote 100, at 231. See generally Abram Chayes & Antonia H. Chayes, Adjustment and Compliance Processes in International Regulatory Regimes, in Preserving the Global Environment 280 (Jessica T. Mathews ed., 1991).

¹⁰⁵ Relatively ineffective attempts to help define disputes by creating precision in substantive obligations are apparent in the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Dec. 29, 1972, 26 UST 2403, 1046 UNTS 120; the Rhine Chemical Convention, supra note 68; and the Rhine Chlorides Convention, supra note 68. Procedural attempts to define disputes with greater precision can be found in most international environmental agreements. Even where the terminology of dispute is avoided in preference for that of noncompliance, the goal may be to establish a point of crystallization for the failure to comply with obligations. See text at and notes 108–14 concerning the noncompliance mechanism under the Montreal Protocol on Substances That Deplete the Ozone Layer.

¹⁰⁶ See Martti Koskenniemi, Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol, 3 Y.B. Int’l Envtl. L. 123, 125–28 (1992). Boyle, supra note 100, at 233, suggests that such mechanisms allow “the problems of treaty compliance and interpretation to be addressed from an administrative and political perspective, rather than from a judicial or adversarial one.” Chayes & Chayes, supra note 16, at 109, also argue for a cooperative, rather than an adversarial, approach. See also Rummer, supra note 99, at 257.

¹⁰⁷ In their useful study on compliance with international environmental accords, Jacobson and Weiss, supra note 54, at 123–25, distinguish “implementation” and “compliance” in a manner that does not wholly accord with our approach. For them, implementation “refers to measures that states take to make international accords effective in their domestic law.” On the other hand, compliance goes beyond implementation, and refers to both implementation of specific treaty obligations and adherence to the “spirit of the treaty.”

¹⁰⁸ Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, reprinted in 26 ILM 1550 (1987). Article 8 required the parties, “at their first meeting, [to] consider and approve procedures and institutional mechanisms for determining non-compliance with the provisions of the Protocol and for the treatment of the Parties found to be in non-compliance.”

¹⁰⁹ See Convention for the Protection of the Ozone Layer, Mar. 22, 1985, Art. 11, TIAS No. 11,097, reprinted in 26 ILM 1529 (1987) [hereinafter Vienna Convention]; Annex II to the Convention sets out detailed information exchange provisions.

¹¹⁰ Decision III/2 of the 1991 Meeting of the Parties, discussed in The Effectiveness of International Environmental Agreements 141 (Peter H. Sand ed., 1992). The final version of the procedure was adopted at the fourth Meeting of the Parties, in 1992. See Doc. UNEP/OzL.Pro.4/15 (1992), reprinted in 3 Y.B. Int’l Envtl. L. 819 (1992) [hereinafter Fourth Meeting]. It allows any party to register a “reservation” with respect to the implementation of the Protocol’s obligations by another party. An “Implementation Committee,” consisting of 10 members elected by the Meeting of the Parties “based on equitable geographical distribution,” will review the reservation, the reply of the party concerned and any other relevant information to secure an “amicable solution.” The results of the review will be communicated to the Meeting of the Parties, which is to determine any steps to bring about full compliance, including measures to assist parties’ compliance. To assist these two bodies in their respective functions, an “Indicative List” identifying “possible situations of non-compliance” and an “Indicative List of Measures” to encourage full compliance were also developed. See Report of the Third Meeting of the Ad Hoc Working Group of Legal Experts on Non-Compliance with the Montreal Protocol, Doc. UNEP/OzL.Pro/WG.3/3/3, Annex II, point I (1992). The Implementation Committee may also scrutinize national reports to determine the implementation efforts of the parties, which enhances the effect of the reporting requirements and encourages participation in the reporting system, as the committee publishes a list of states that have failed to submit their reports. See Fourth Meeting, supra, para. 7(b).

¹¹¹ For an overview, see Patrick Szell, Implementation Control: Non-Compliance Procedure and Dispute Settlement in the Ozone Regime, in The Ozone Treaties and their Influence on the Building of International Environmental Regimes 43, 46–47 (Oesterreichische aussenpolitische Dokumentation, Special Issue, Winfried Lang ed., 1996).

¹¹² Report of the Seventh Meeting of the Parties to the Montreal Protocol on Substances That Deplete the Ozone Layer, Doc. UNEP/OzL.Pro.7/12, para. 39 (1995) (Report of the President of the Implementation Committee)[hereinafter Seventh Meeting].

¹¹³ Koskenniemi, supra note 106, at 133. But see David G. Victor, The Montreal Protocol’s Non-Compliance Procedure: Lessons for Making Other International Environmental Regimes More Effective, in The Ozone Treaties and their Influence on the Building of International Environmental Regimes, supra note 111, at 58, passim.

¹¹⁴ At the fifth Meeting of the Parties in 1993, the Implementation Committee met with parties not in compliance. These meetings occurred “at the margins of the full conference” and resulted in most parties’ confirming “their readiness to comply.” See Winfried Lang, Air and Atmosphere: The Year in Review, 4 Y.B. Int’l Envtl. L. 141 (1993) (noting that this outcome may have been due to the “‘amicable’ approach adopted by the Committee, which spares non-compliers full exposure … provided they promise their performance”). In 1994 the Implementation Committee met prior to the sixth Meeting of the Parties to discuss the noncompliance of Algeria, Antigua and Barbuda, the Central African Republic, Iran, Lebanon, Swaziland, and the Syrian Arab Republic. See Winfried Lang, Air and Atmosphere: The Year in Review, 5 Y.B. Int’l Envtl. L. 161 (1994) (stating that some of these countries submitted last-minute reports to avoid further action). Finally, in 1995 the committee determined that Belarus, Bulgaria, the Russian Federation, Ukraine and Poland were facing possible noncompliance in 1996. Discussions in the committee resulted in decisions by the parties with respect to each of these countries. Four of them entered into agreements providing for actions to be taken to achieve compliance and for assistance to be granted to them in this vein. Only Russia objected to the decision on its noncompliance. See Seventh Meeting, supra note 112, paras. 39–44, 94, 123–34.

¹¹⁵ See Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25,1991, reprinted in 30 ILM 800 (1991) [hereinafter Espoo Convention].

¹¹⁶ Id., Art. 3(7). Appendix IV to the Convention sets out the “inquiry procedure,” which begins with the establishment of a three-member inquiry commission. Each party designates a scientific or technical expert and a third expert is chosen by common agreement to be president of the commission (para. 2). If a party fails to participate in this step, the Executive Secretary of the ECE is empowered to appoint either the commission member or the president, as the case may be (paras. 3, 4). Each party must assist the commission by providing necessary information and facilities (para. 7). However, if one party refuses to appear before the commission or present its case, the commission may nonetheless complete its work (para. 9). Other parties may intervene in the proceedings if they have an interest in the issue and may be affected by the outcome (para. 11). At the end of the process, the commission submits a final opinion to the parties and the secretariat (paras. 13, 14).

¹¹⁷ See Vienna Convention, supra note 109, Arts. 2–6; and Espoo Convention, supra note 115, Arts. 2, 3, 5 and Apps. I, III. See also Kamen Sachariev, Promoting Compliance with International Environmental Legal Standards: Reflections on Monitoring and Reporting Mechanisms, 2 Y.B. Int’l Envtl. L. 31 (1991).

¹¹⁸ See Espoo Convention, supra note 115, Art. 3(7).

¹¹⁹ See, e.g., Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, Art. 13(4), reprinted in 30 ILM 1455 (1991).

¹²⁰ Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978).

¹²¹ For examples of such provisions, see, e.g., Antarctic Treaty, Dec. 1, 1959, Art. XI(1) & (2), 12 UST 794, 402 UNTS 71; Convention for the Prevention of Marine Pollution from Land-Based Sources, Feb. 21, 1974, Arts. 16, 21, and Annex B, reprinted in 13 ILM 352 (1974); and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, Art. 20 & Ann. VI, reprinted in 28 ILM 657 (1989). The summary report to The Effectiveness of International Environmental Agreements, supra note 110, at 14, observes: “Even though many of the global and regional agreements surveyed contain provisions and detailed annexes for dispute resolution … there are no known cases in which any of these provisions were invoked or used.”

¹²² See Martti Koskenniemi, Peaceful Settlement of Environmental Disputes, 61 Nordic J. Int’l L. 73, 82 (1991).

¹²² See Agenda 21, Chapter 18—Protection of the Quality and Supply of Freshwater Resources: Application of Integrated Approaches to the Development, Management and Use of Water Resources, UN Doc. A/CONF.151/26 (Vol. 2) (1992), reprinted in UN Sales No. E.93.I.11 (1993).

¹²⁴ Id., para. 18.6; see also paras. 18.35, 18.36.

¹²⁵ Id., para. 18.8.

¹²⁶ Id., para. 18.9; see also pacra. 18.38(a).

¹²⁷ Id., para. 18.4, states that “ [t] ransboundary water resources and their use are of great importance to riparian States. In this connection, cooperation among those States may be desirable in conformity with existing agreements and/or other relevant arrangements, taking into account the interests of all riparian States concerned.”

¹²⁸ According to id., para. 18.10, “[i]n the case of transboundary water resources, there is a need for riparian States to formulate water resources strategies, prepare water resources action programmes and consider, where appropriate, the harmonization of those strategies and action programmes.”

¹²⁹ Id., paras. 18.12(o), 18.22. See also Ellen Hey, Sustainable Use of Shared Freshwater Resources: The Need for a Paradigmatic Shift in International Watercourses Law, in The Peaceful Management of Transboundary Resources, supra note 89, at 127, 133.

¹³⁰ Agenda 21, supra note 123, para. 18.27(a) (iv).

¹³¹ Id., para. 18.35.

¹³² See Hey, supra note 129, at 136. Chapter 18 portrays the international dimension to freshwater management as one of offering advice and suggestions for domestic activities, rather than as another layer of regulation and management. See, e.g., Agenda 21, supra note 123, paras. 18.39, 18.40.

¹³³ ILC 1994, supra note 74.

¹³⁴ See Brunnee & Toope, supra note 1, at 58.

¹³⁵ See GA Res. 2669 (XXV), UN GAOR, 25th Sess., Supp. No. 28, at 127, UN Doc. A/8028 (1970) (calling on the Commission to “take up the study of the law of the non-navigational uses of international watercourses with a view to its progressive development and codification” (emphasis added)).

¹³⁶ ILC 1994, supra note 74, Arts. 20, 23. See also Brunnée & Toope, supra note 1, at 64–65.

¹³⁷ The prohibition of significant transboundary harm and the requirement of equitable utilization remain the overarching concepts. See ILC 1994, supra note 74, Arts. 5, 7, 21. See also Brunnee & Toope, supra note 1, at 61–64.

¹³⁸ The commentary suggests at various points that notions such as precaution and sustainable development are implied by the draft articles. See ILC 1994, supra note 74, at 219, 287.

¹³⁹ See Brunnee & Toope, supra note 1, at 65–70. Note, however, that the concept of sustainable development is mentioned in Article 24, dealing with the possible tasks of a joint management mechanism. Note also that the ILC appears to view the precautionary principle as inherent in Article 21(2), pursuant to which pollution that “may cause” significant harm is to be prevented, controlled or reduced. See ILC 1994, supra note 74, at 289, 292.

¹⁴⁰ According to ILC 1994, supra note 74, Art. 2, an international watercourse is “a system of surface and underground waters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus.” See Brunnee & Toope, supra note 1, at 60. But see text at note 134 supra (pointing to the constraints faced by the ILC by virtue of the mandate it received from the UN General Assembly to study “the law of the non-navigational uses of international watercourses” (emphasis added)).

¹⁴¹ For a discussion, see Brunnee & Toope, supra note 1, at 64–65.

¹⁴² Unfortunately, the same may be true in the context of procedural ecosystem orientation. See infra text at and notes 171–75.

¹⁴³ Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Mar. 17, 1992, reprinted in 31 ILM 1312 (1992) [hereinafter Helsinki Convention].

¹⁴⁴ Id., Art. 2, paras. 1, 2, 5, 6, 8, and Arts. 3, 9.

¹⁴⁵ In id., Art. 1, para. 2, “transboundary impact” is defined as

any significant adverse effect on the environment resulting from a change in the conditions of transboundary waters caused by a human activity, the physical origin of which is situated wholly or in part within an area under the jurisdiction of a Party, within an area under the jurisdiction of another Party. Such effects on the environment include effects on human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction among these factors; they also include effects on the cultural heritage or socio-economic conditions resulting from alterations to those factors.

¹⁴⁶ Id., Art. 2, para. 2(d), and Art. 3, para. 1(i). In Annexes II and III, the Convention also provides guidelines for the development of “best environmental practices” and “water-quality objectives and criteria,” respectively.

¹⁴⁷ Id., Art. 2, para. 5(a) & (c).

¹⁴⁸ Agreements on the Protection of the Rivers Scheldt and Meuse, Apr. 26, 1994, reprinted in 34 ILM 851 (1995) [hereinafter Scheldt and Meuse Agreements]. For an overview, see A. Gosseries, The 1994 Agreements Concerning the Protection of the Scheldt and Meuse Rivers, 4 Eur. Envtl. L. Rev. 9 (1995).

¹⁴⁹ See Scheldt and Meuse Agreements, supra note 148, Arts. 1.

¹⁵⁰ Id., Arts. 7 (observers) & 10, para. 1 (subsequent accession).

¹⁵¹ Id., Arts. 3, paras. 2(a), 5, 6.

¹⁵² See Act Regarding Navigation and Economic Co-operation between States of the Niger Basin, Oct. 26, 1963, reprinted in Ruster & Simma, supra note 66, at 5629 [hereinafter Niger Basin Agreement]; Convention and Statute Relating to the Development of the Chad Basin, May 22, 1964, reprinted in id. at 5633 [hereinafter Chad Basin Convention].

¹⁵³ See, e.g., Treaty on the River Plate [Plata] Basin, Apr. 23, 1969, reprinted in 8 ILM 905 (1969); Agreement on Great Lakes Water Quality, Apr. 15, 1972, Art. 1(d), 1972 Can. TS No. 12, 23 UST 301 [hereinafter 1972 GLWQA]; Rhine Chemical Convention, supra note 60, Art. 1; Kagera River Agreement, Aug. 24, 1977, reprinted in United Nations, Treaties Concerning the Utilization of International Watercourses for Other Purposes Than Navigation, Africa 32, UN Sales No. E/F.84.II.A.7 (1984); Treaty for Amazonian Cooperation, July 3,1978, Art. II, reprinted inn ILM 1045 (1978); Agreement on the Action Plan for the Environmentally Sound Management of the Common Zambezi River System, May 28, 1987, reprinted in 27 ILM 1109 (1988) [hereinafter Zambezi Agreement]; Agreement Concerning Co-operation on Management of Water Resources of the Danube Basin, Dec. 1, 1987, 1990 O.J. (L 90) 20, reprinted in 2 Basic Documents of International Environmental Law, Doc. 54E (Harald Hohmann ed., 1992); Agreement on the Preparation of a Tripartite Environmental Management Programme for Lake Victoria, Nov. 30, 1993, attachment 1.2, reprinted in International Environmental Law—Multilateral Agreements 994 (W. E. Burhenne et al. eds., 1974) [hereinafter Lake Victoria Agreement]; Convention on Cooperation for the Protection and Sustainable Use of the Danube River Basin, June 29, 1994, reprinted in 19 Int’l Env’t Rep. (BNA) 997 (Oct. 30, 1996); and Strategic Action Plan for the Danube River Basin 1995–2005 [hereinafter Danube Action Plan]; Scheldt and Meuse Agreements, supra note 148; and Agreement on Cooperation for the Sustainable Development of the Mekong River Basin, Apr. 5, 1995, reprinted in 34 ILM 864 (1995) [hereinafter Mekong Agreement].

¹⁵⁴ In 1964 the Chad Basin Convention, supra note 152, already committed its parties to consider impacts upon water or biological characteristics of fauna and flora in the Chad Basin (Art. 5). Developments since the 1970s include the Uruguay River Statute, Feb. 26, 1975, Arts. 35, 36, quoted in Stephen M. Schwebel, Third Report on the Law of the Non-Navigational Uses of International Watercourses, [1982] 2 Y.B. Int’l L. Comm’n 65, 96, UN Doc. A/CN.4/SER.A/1982/Add.1(Part 1) (paying attention to the interaction between land and water, and the need to maintain ecological balance); Agreement on Great Lakes Water Quality, Nov. 22, 1978, Art. 1(g), 1978 Can. TS No. 20, 30 UST 1383, 1153 UNTS 187 (referring to the Great Lakes Basin ecosystem as interrelating “components of air, land, water and living organisms, including man”) [hereinafter 1978 GLWQA]; see text at note 164 infra for the altered wording adopted in 1987; Zambezi Agreement, supra note 153, Annex I, para. 14 (recognizing the need to integrate other environmental concerns into water management); Declaration of San Francisco de Quito, Mar. 7, 1989, Preamble, reprinted in Amazonia and Siberia: Legal Aspects of the Preservation of the Environment and Development in the Last Open Spaces 334 (Michael Bothe et al. eds., 1993) (elaborating on the Treaty for Amazonian Cooperation, supra note 153, and recognizing the importance of Amazonian ecosystems); Lake Victoria Agreement, supra note 153, Complement 2; Scheldt and Meuse Agreements, supra note 148, Arts. 5(d) (recognizing the need to “improve the quality of the water and of the ecosystem generally”); Mekong Agreement, supra note 153, Preamble & Art. 3 (recognizing the need to protect the ecological balance of the basin, related natural resources and the environment).

¹⁵⁵ See Zambezi Agreement, supra note 153, Preamble & Annex I (referring repeatedly to the concept of sustainable development); see also Amazon Declaration, May 6, 1989, reprinted in 28 ILM 1303 (1989) (acknowledging the Amazon states’ common interest, “within the framework of the Treaty for Amazonian Co-operation,” in sustainable development (para. 1) and referring to the need for environmental protection and conservation for the benefit of present and future generations (para. 2)); Mekong Agreement, supra note 153, Preamble & Art. 1 (emphasizing the need for sustainable development).

¹⁵⁶ Critical voices have suggested that the Mekong Agreement, despite its progressive terminology, ultimately permits projects such as large dams, which could destroy the basin’s ecological balance. The most recent meeting (March 18–19, 1996) of the Joint Committee of the Mekong River Commission brought no agreement on issues such as pollution control and environmental protection. However, from April 17 to 20, 1996, the members participated in a workshop examining the experience with other basin development plans. See Differences Remain Among Four Nations over Curbing Pollution in Mekong River Delta, 19 Int’l Env’t Rep. (BNA) 285 (Apr. 3, 1996).

¹⁵⁷ Ultimately anchored in the 1909 Boundary Waters Treaty, supra note 69, the GLWQA evolved through the following agreements: the 1972 GLWQA, supra note 153; the 1978 GLWQA, supra note 154; and the Protocol Amending the Agreement between the United States of America and Canada on Great Lakes Water Quality of 1978, Nov. 18, 1987, 1987 Can. TS No. 32, TIAS No. 11,551 [hereinafter 1987 Protocol].

¹⁵⁸ For detailed reviews, see, e.g., Daniel K. DeWitt, Great Words Needed for the Great Lakes: Reasons to Rewrite the Boundary Waters Treaty of 1909, 69 Ind. L.J. 299 (1993);John Jackson, The Great Lakes: Exploring the Ecosystem, in Resource Politics—Freshwater and Regional Relations 23 (Caroline Thomas & Darryl Howlett eds., 1994); Leonard B. Dworsky et al., The Great Lakes: Transboundary Issues for the Mid-90’s, 26 U. Tol. L. Rev. 347 (1995). For critical voices, see, e.g., Lynton K. Caldwell, Disharmony in the Great Lakes Basin: Institutional Jurisdictions Frustrate the Ecosystem Approach, Alternatives, July 1994, at 26; William J. Christie, The Ecosystem Approach to Managing the Great Lakes: The New Ideas and Problems Associated with Implementing Them, 26 U. Tol. L. Rev. 279 (1995).

¹⁵⁹ See Richard B. Bilder, Controlling Great Lakes Pollution: A Study in United States-Canadian Environmental Cooperation, 70 Mich. L. Rev. 469, 499–500 (1972).

¹⁶⁰ Like its predecessor, the 1978 GLWQA, supra note 154, provides for “general objectives” (Art. III) and “specific objectives” (Art. IV), which are to be implemented through agreed-upon “standards” (Art. V) derived from “programs and other measures” dealing with various pollution sources (Art. VI). Detailed annexes develop these elements.

¹⁶¹ Article II, id., reads in part:

The purpose of the Parties is to restore and maintain the chemical, physical, and biological integrity of the waters of the Great Lakes Basin Ecosystem. In order to achieve this purpose, the Parties agree to make a maximum effort to develop programs, practices and technology necessary for a better understanding of the Great Lakes Basin Ecosystem and to eliminate or reduce to the maximum extent practicable the discharge of pollutants into the Great Lakes System.

¹⁶² Id., Annex 12, para. 2(a) (ii). This approach, however, has not yet yielded the desired result of “zero discharge” in practice. See Paul Muldoon & John Jackson, Keeping the Zero in Zero Discharge: Phasing out Persistent Toxic Substances in the Great Lakes Basin, Alternatives, Sept. 1994, at 14.

¹⁶³ Another example of the implicit adoption of the precautionary approach is the lists of toxic or potentially toxic substances developed under the 1987 Protocol, supra note 157.

¹⁶⁴ Id., Art. 11(a), amending 1978 GLWQA, supra note 154, Art. 1(g) (emphasis added).

¹⁶⁵ See, e.g., 1987 Protocol, supra note 157, Art. XVI, amending 1978 GLWQA, supra note 154, to add Annex 12(8) (on reporting), & 1978 GLWQA, Annex 4(5).

¹⁶⁶ 1987 Protocol, supra note 157, Supp. to Annex 1, para. 2(c) (i)–(iii). List 1 relates to substances that are toxic and present in the Great Lakes; list 2 deals with substances that have the potential to be toxic and are present in the Great Lakes; and list 3 concerns substances that are toxic but not yet present in the Great Lakes.

¹⁶⁷ See id., Supp. to Annex 1, para. 2(a).

¹⁶⁸ See id., Annex 2, paras. 3, 4.

¹⁶⁹ See id., Annex 2, para. 6.

¹⁷⁰ See id., Supp. to Annex 1, para. 2(a), and Annex 2, para. 2(e).

¹⁷¹ See ILC 1994, supra note 74, Art. 2 and commentary, at 206.

¹⁷² Draft Article 24 provides:

1. Watercourse States shall, at the request of any of them, enter into consultations concerning the management of an international watercourse, which may include the establishment of a joint management mechanism.

2. For the purposes of this article, “management” refers, in particular, to:

(a) planning the sustainable development of an international watercourse and providing for the implementation of any plans adopted;

(b) otherwise promoting rational and optimal utilization, protection and control of the watercourse.

Id. at 302. Some commentators have nonetheless evaluated the provision favorably. See, e.g., Sergei V. Vinogradov, Observations on the International Law Commission’s Draft Rules on the Law of the Non-Navigational Uses of International Watercourses: ‘Management and Domestic Remedies,’ 3 Couo. J. Int’l Envtl. L. & Pol’y 234, 236–37 (1992) (observing that, “[a]lthough very general in scope and content, … this provision reflects the generally recognized need for integrated management of an international watercourse” and that it “reflects a distinct shift from the doctrine of non-harmful use of the State’s territory … to the concept of the community of interests of watercourse States”). Vinogradov points to extensive discussions in the ILC and the Sixth Committee, which led to the elimination of all controversial aspects of Article 26. Id. at 239. A majority of observers, however, seem critical of the ILC’s approach to Article 26. See, e.g., Radosevich, supra note 78, at 262, 266; and Constance D. Hunt, Implementation: foint Institutional Management and Remedies in Domestic Tribunals (Articles 26–28, 30–32), 3 Colo. J. Int’l Envtl. L. & Pol’y 281, 284 (1992). Note that these commentators were referring to draft Article 26 as contained in Report of the International Law Commission on the work of its forty-third session, UN GAOR, 46th Sess., Supp. No. 10, at 170, UN Doc. A/46/10 (1991). Draft Article 24, as adopted in 1994, is identical in wording.

¹⁷³ McCaffrey, Sixth Report, supra note 77, at 48.

¹⁷⁴ The proposed draft Article 26, id., read:

1. Watercourse States shall enter into consultations, at the request of any of them, concerning the establishment of a joint organization for the management of an international watercourse [system].

2. For the purposes of this article, the term “management” includes, but is not limited to, the following functions:

(a) implementation of the obligations of the watercourse States under the present articles, in particular the obligations under parts II and III of the articles;

(b) facilitation of regular communication, and exchange of data and information;

(c) monitoring international watercourse[s] [systems] on a continuous basis;

(d) planning of sustainable, multi-purpose and integrated development of international watercourse[s] [systems];

(e) proposing and implementing decisions of watercourse States concerning the utilization and protection of international watercourse[s] [systems]; and

(f) proposing and operating warning and control systems relating to pollution, other environmental effects of the utilization of international watercourse[s] [systems], emergency situations, or water-related hazards and dangers.

3. The functions of the joint organization referred to in paragraph 1 may include, in addition to those mentioned in paragraph 2, inter alia:

(a) fact-finding and submission of reports and recommendations in relation to questions referred to the organization by watercourse States; and

(b) serving as a forum for consultations, negotiations and such other procedures for peaceful settlement as may be established by the watercourse States.

¹⁷⁵ See Vinogradov, supra note 172, at 241. Benvenisti, supra note 35, at 414, argues that the ILC’s reluctance to provide a blueprint for joint management is surprising in view of the optional nature of the draft articles. He concludes, in our view correcdy, that the ILC’s juxtaposition of a weak joint management provision and a detailed dispute settlement article conveys entirely the wrong signal, promoting adversarial, single-issue approaches rather than long-term cooperation.

¹⁷⁶ Supra note 69.

¹⁷⁷ Bilder, supra note 159.

¹⁷⁸ See supra note 77.

¹⁷⁹ Pursuant to Article VI of the 1972 GLWQA, supra note 153, the IJC is responsible, inter alia, for the collection, analysis and dissemination of data, the provision of advice and assistance to the parties, and the investigation of and reporting on water quality issues referred to it by the parties. The IJC may also prepare and publish reports on its own initiative and can exercise all powers conferred upon it by the Boundary Waters Treaty.

¹⁸⁰ See id., Art. VII(1), and 1978 GLWQA, supra note 154, Art. VIII(1)(a).

¹⁸¹ See supra note 82.

¹⁸² Alan E. Boyle, Remarks at a Workshop on Environmental Security and Freshwater Resources, held at the Faculty of Law, McGill University (Nov. 11–12, 1994) (minutes on file with authors) [hereinafter Workshop].

¹⁸³ This view was confirmed by Philip Slyfield (IJC) and Dennis Davis (Environment Canada) in their Remarks at the Workshop, supra note 182. They observed that commissioners and board members take off their “governmental hats” and interact at a professional level, emphasizing personal expertise rather than political interest. They suggested further that, if the IJC had more influence over sovereign interests and were given more regulatory powers, it would “become part of the problem.”

¹⁸⁴ See text at notes 46–57 and 108–16 supra.

¹⁸⁵ By contrast, the ILC draft articles, supra note 74, appear to follow the traditional approach. The commentary illustrates the link between substantive and procedural obligations. The commentary on Article 9 (regular exchange of data and information) clarifies that the provision is intended to enable watercourse states to comply with their obligations of equitable utilization and avoidance of significant harm, see id. at 250. The notification and consultation provisions (Arts. 12–19) are specifically tied to planned measures “which may have a significant adverse effect upon other watercourse States,” see id., Art. 12, at 260. Similarly, the early-warning provision is predicated on the presence of an “emergency” causing or threatening serious harm, see id., Art. 28, at 312. For references to treaties containing comparable provisions, see pages indicated in this footnote.

¹⁸⁶ The annexes to the GLWQA, as amended by the 1987 Protocol, supra note 157, are (1) Specific Objectives; (2) Remedial Action Plans and Lakewide Management Plans; (3) Control of Phosphorous; (4) Discharges of Oil and Hazardous PollutingSubstances from Vessels; (5) Discharges of Vessel Wastes; (6) Review of Pollution from Shipping Sources; (7) Dredging; (8) Discharges from Onshore and Offshore Facilities; (9) Joint Contingency Plan; (10) Hazardous Polluting Substances; (11) Surveillance and Monitoring; (12) Persistent Toxic Substances; (13) Pollution from Non-Point Sources; (14) Contaminated Sediment; (15) Airborne Toxic Substances; (16) Pollution from Contaminated Groundwater; and (17) Research and Development.

¹⁸⁷ See, e.g., id., Annex 1 (defining allowable concentrations of pollutants to maximum microgram per liter unit).

¹⁸⁸ For example, the 1978 GLWQA, supranote 154, Annex 1, allows the amendment or addition of objectives by “mutual consent of the Parties.” Annex 10 adopts a similar approach with respect to “hazardous polluting substances” and goes so far as allowing each party, upon notification of the other, to make unilateral additions to a list of “potential hazardous polluting substances” (para. 4(a)).

¹⁸⁹ See id., Arts. X, XIII.

¹⁹⁰ Examples include the (ECE) Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, TIAS No. 10,541, reprinted in 18 ILM 1442 (1979); the Vienna Convention, supra note 109; the Framework Convention on Climate Change, May 9, 1992, UN Doc. A/AC.237/18(Part II)/Add.1 & Corr.1, reprinted in 31 ILM 849 (1992). Seejutta Brunnee, Towards Effective International Environmental Law: Trends and Developments, in Law and Process in Environmental Management 217, 223–26 (S. A. Kennett ed., 1993).

¹⁹¹ See in this regard the Danube Action Plan, supra note 153, the Executive Summary of which states: “Despite the diversity of problems, interests and priorities across the Danube River basin, the countries share certain important values and have agreed on principles which underlie the goals and actions of the Plan” (emphasis added). The plan then outlines a series of “common goals,” “common strategic directions,” “common targets” and “common actions.” The Danube Action Plan is intended to “support and implement” the Convention on Cooperation for the Protection and Sustainable Use of the Danube Basin, supra note 153, even before the Convention enters into force (90 days after ratification by the ninth country). In addition to these initiatives, the Danube countries are negotiating a draft Danube Basin Ecological Convention.

¹⁹² See, e.g., the distinction between “parties” and “riparian parties” in the Helsinki Convention, supra note 143, Art. 1(3) and (4). All “parties” are subject to certain basic environmental protection and ecosystem management obligations (Arts. 2–8), whereas “riparian parties” are subject to additional provisions on cooperation and joint management of the water resource (Arts. 9–16).

¹⁹³ See Setear, supra note 11.

¹⁹⁴ See Brunnee, supra note 15.

¹⁹⁵ Clearly, protocols are intended to be sources of formal legal obligations. By contrast, the framework agreement, while technically binding, is so broadly phrased as to partake of more of the values of a contextual regime.

¹⁹⁶ A similar argument, albeit not in the context of international ecosystem law, is advanced by Setear, supra note 11. He calls for an “iterative” approach to treaty making, a proposal that intersects with our idea of a continuum in regime formation. Relying on findings derived from game theory, Setear argues, id. at 185–89, that cooperation is more likely to emerge among states when they are involved in an indeterminate series of interactions, as opposed to one single interaction. He suggests, id. at 186, that “[t] he placement of a sufficiently high value on future interactions allows a player rationally to trade off short-term gains.” Therefore, Setear, too, concludes that the framework-protocol model, because of its multiple “iterations” from the initial agreement to subsequent protocols, is particularly conducive to a cooperative dynamic. Id. at 217–24. See also Benvenisti, supra note 35, at 392, 399–400.

¹⁹⁷ See further Chayes & Chaves, supra note 16, at 108.

¹⁹⁸ On the importance of providing avenues for the evolution of norms in promoting compliance, see also id. at 110, characterizing the compliance process as “a kind of discourse,” and id. at 123, suggesting that the “discursive elaboration and application of treaty norms is the heart of the compliance process.”

¹⁹⁹ The ILC’s draft articles, ILC 1994, supra note 74, do not pay sufficient attention to these considerations. They follow the tradition of formal dispute resolution processes. The ILC members were divided on the value of including dispute settlement clauses in the draft articles. See Report of the International Law Commission on the work of its forty-fifth session, UN GAOR, 48th Sess., Supp. No. 10, at 220–22, UN Doc. A/48/10 (1993). Draft Article 33 now provides a stepped procedure, culminating in arbitration or adjudication, to be employed in the absence of an applicable agreement between watercourse states.