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

• Author: Springer, Allen L.

1. 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 regime effectiveness. (12)

   It is in the context of these concerns that this essay focuses on the Gulf of Maine Council on the Marine Environment. Established in 1989 by the three U.S. states and two Canadian provinces bordering what has been one of the world's most productive marine areas, the Council's creation responded both to the perceived need for increased institutionalization of patterns of cooperation in the North Atlantic region and to the desire by state and provincial actors, both governmental and non-governmental, to play a more central role in that process. (13) In addition to representing an innovative approach to transboundary cooperation, the Council has served as a model for other regional efforts, including the British Columbia-Washington Environmental Cooperation Council (BCWECC) established in 1992. (14)

   This article analyzes the creation and development of the Gulf of Maine Council, focusing on the Council's search for a clear institutional identity and on the process of transjurisdictional (15) cooperation it is intended to promote rather than the substantive programs it has supported. (16) It begins with an overview of the problems to which the Council is at least a partial response and the jurisdictional context in which it was placed. After examining the Council's origins and the factors that helped determine the particular form the institution assumed, it looks at the Council's evolution through the development and refinement of its Action Plans. The article then describes three major institutional challenges the Council has faced: its limited role in the area of marine fisheries, the problem of involving non-governmental organizations more centrally in its work, and the constraints posed by tight and unpredictable financial resources. It concludes with a discussion of some of the future institutional c hoices that may become relevant as the Council evolves.

   It is too early to judge conclusively the effectiveness of an organization still in the process of development. However, internal debates over the Council's place in the larger process of regional environmental management can help us understand both its strengths and limitations and provide insight into the ways members are trying to develop the institution needed to respond effectively to the wide range of problems outlined in the Council's broad terms of reference.

   If there is a central conclusion, it is that the Council's cautious current direction appears, at least for the time being, both understandable and constructive. It represents a practical attempt by governmental agencies to focus their resources on a common environmental agenda, and it provides the institutional flexibility to permit changes to be made when political conditions make that possible. Whether such an institution can, in the long run, develop the capacity to meet the needs in the Gulf of Maine remains uncertain.

1. INSTITUTIONAL DESIGN: IDENTIFYING THE PROBLEM AND FRAMING A RESPONSE

   Traditional analysis of international institutions has commonly been criticized for overemphasizing formal questions of structure, organizational mandate and rule-making authority. While it is important to recognize the role played by less tangible institutional characteristics, the fact is that what an institution can achieve is affected by how it is designed and the formal powers it is given. The terms under which it is established, in this case through an intergovernmental agreement, also provide a reasonably clear sense both of the goals of the parties at the time it is created and areas of consensus and disagreement about the tasks being undertaken. As Young makes clear, the "fit" between the institution and the problem it is expected address is an important factor in determining regime effectiveness.

   1. Multidimensional Challenge (17)

      Among the most striking aspects of the origins of the Gulf of Maine Council is that it emerged not as a panicked response to environmental catastrophe but in a relatively calm and pragmatic atmosphere. Although people were well aware of the serious pressures facing North Atlantic fisheries and the fishing communities threatened by declining yields, the Council was never intended to be a vehicle to respond directly to these concerns. The decision in the late 1980s to undertake this regional initiative was instead based on an awareness that pollution was a growing problem in Gulf of Maine and that it was crucial both to understand it better and to respond before conditions deteriorated to the point seen elsewhere.

      The Gulf of Maine is a semi-enclosed sea roughly 33,000 square miles in area which reaches from Cape Sable, Nova Scotia, to Cape Cod, Massachusetts, and extends seaward to the underwater barrier formed by Georges Bank. Two powerful ocean currents control water circulation in the Gulf. One pulls water from the deep oceans in a clockwise motion over Georges Bank, while a second moves in a counterclockwise direction within the Gulf...