North American transjurisdictional cooperation: The Gulf of Maine Council on the Marine Environment.

Extract

---

North American transjurisdictional cooperation: The Gulf of Maine Council on the Marine Environment.

I. INTRODUCTION

The boundary between Canada and the United States has become the focus of interesting and fruitful research. Observers once simply applauded the ability of the two countries to maintain the "world's largest undefended border" and then retreated to fairly traditional discussions of the bilateral relationship, focusing on the formal interaction of the two national governments. Whether driven by a changing technological and commercial reality or simply by a new recognition of forces that have long been at work, there is now substantial interest in understanding better the complex relationships developing along lines once designed primarily to divide these close but separate political communities.

What we are witnessing is hardly unique to North America; around the world, the nature of borders and the values of state sovereignty they were once presumed to protect have become the focus of serious, critical scrutiny. The confidence of those like Harold and Margaret Sprout (1) and Richard Falk, (2) who felt that a sort of "ecological imperative" would help erase the "artificial" boundaries they saw inhibiting effective environmental protection, (3) has been challenged by the work of Karen Litfin and others. (4) Sovereignty, more complex and stubborn a reality than many had earlier believed, is argued to be undergoing a process of transformation, "greened" rather than diminished in response to emerging environmental challenges.

In the process, patterns of cooperation have become far more complex and multidimensional, increasingly transnational rather than intergovernmental in nature. New actors, particularly non-governmental organizations committed to environmental causes, (5) have begun to play critical roles, not just as outside critics of governmental policy, but as active participants in the broader processes of "international governance" that are evolving. (6) Anne-Marie Slaughter's work on "transgovemnmentalism" points to the particular importance of the transnational linkages being forged between governmental agencies, a development she sees as offering promise of policy that is both more effective and more responsive to popular will. (7)

Despite (and partly because of) these changes, developing effective environmental "institutions" has been a growing area of research. (8) Why have certain organizational structures been chosen over others? What factors influence their effectiveness? How do institutions and the policies they promote change over time?

Some of the most innovative transboundary institutional development has taken place along the U.S.-Canadian border, where a history of environmental cooperation dates back to the 19th century. The 1909 Boundary Waters Treaty was one of the earliest international agreements with a substantial environmental dimension, and the International Joint Commission (IJC) it established remains among the world's most interesting and progressive environmental institutions. The decision of the two nations to entrust a dispute over the transboundary impact of a refinery in British Colombia to international arbitration in the 1930s produced perhaps the most widely cited case in international environmental law: the Trail Smelter decision. The list of specific environmental accomplishments by the two nations is substantial; equally impressive is the generally positive and pragmatic way in which they have approached the problems that inevitably occur along so long, developed, and ecologically complex a border.

This pattern of transboundary relations is not without critics. Some observers have expressed frustration at the level of ad hockery that continues to characterize the bilateral relationship and argue that a greater degree of institutionalization could help prevent or limit the economic and political costs of the disputes that still do occur. (9) IJC veteran Maxwell Cohen was among the most outspoken proponents of strengthened and formalized binational dispute avoidance and settlement procedures. (10) John Carroll has proposed a series of measures ranging from common fact-finding to transborder litigation to encourage earlier and more effective confrontation of transboundary environmental problems. (11)

The question now is not whether institutions are important to Canada-U.S. environmental relations, but at what level they should be created, who should be included, and what form they should take. Oran Young's 1998 analysis of North American resource regimes clearly points to what he terms "institutional capacity" as a key determinant in the success of specific transboundary environmental protection efforts. This concept goes beyond formal institutional powers, though how organizations make decisions, encourage compliance, etc. remain important questions. Young sees such as factors as the "fit...between regimes and the problems they address" and less tangible characteristics such as "authority" and "legitimacy" as crucial contributors to regim...

See the full content of this document

---