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The international law of shared natural resources : a case study of an international wildlife range between… Banks, Nigel David 1980

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THE INTERNATIONAL LAW OF SHARED NATURAL RESOURCES: A CASE STUDY OF AN INTERNATIONAL WILDLIFE RANGE BETWEEN ALASKA AND THE YUKON by NIGEL DAVID BANKES B.A. The University of Cambridge, 1978 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Department of Law) We accept t h i s thesis as conforming to the required standard THE UNIVERSITY OF BRITISH February 1980 (c) Nigel David Bankes, COLUMBIA 1980 In presenting th i s thes is in pa r t i a l fu l f i lment of the requirements for an advanced degree at the Univers i ty of B r i t i s h Columbia, I agree that the L ibrary shal l make it f ree ly ava i l ab le for reference and study. I further agree that permission for extensive copying of th is thes is for scho lar ly purposes may be granted by the Head of my Department or by his representat ives. It is understood that copying or pub l i ca t ion of th is thesis for f inanc ia l gain sha l l not be allowed without my written permission. Department of The Univers i ty of B r i t i s h Columbia 2075 Wesbrook Place Vancouver, Canada V6T 1W5 Date ABSTRACT Proposals have been made for the creation of an international w i l d l i f e range between Alaska and Yukon T e r r i t o r y , and for an international convention between Canada and the United States to protect the Porcupine Caribou herd. It i s suggested that these developments do not take place i n a l e g a l void. General ideas of cooperation derived from theories of interdependence, l i b e r a l j u r i s t s and advocates of world government are i n s u f f i c i e n t to oblige neighbouring states to undertake s p e c i f i c action. This thesis, therefore, concentrates on the procedural obligations upon neighbouring states to cooperate i n the exploitation and conservation of shared natural resources. It i s suggested that general p r i n c i p l e s may be derived from several natural resource regimes international r i v e r basins, t r a n s f r o n t i e r p o l l u t i o n and straddling deposits of hydrocarbons. These s p e c i f i c regimes are supported by the work of the United Nations Environment Programme on natural resources shared by two or more states, and trends d i s c e r n i b l e i n the general international law applicable to w i l d l i f e . In each regime the l e g a l status of several p r i n c i p l e s i s considered. For example, i s there a duty to n o t i f y other states of plans to exploit a resource which may s u b s t a n t i a l l y a f f e c t the interests of that state? Is there a duty to exchange information and consult and negotiate i n respect of the shared resource? The strongest support for these p r i n c i p l e s i s found in the international r i v e r basin regime, although, i n many cases a strong state practice i s present though a sense of obligation on the part of states i s lacking. In many cases considerable reliance i s placed on state treaty practice as a source of customary law, and on the writings and deliberations of highly q u a l i f i e d groups of s p e c i a l i s t j u r i s t s . The general p r i n c i p l e s derived from these resource regimes and the UNEP studies may be applied to the two proposals for the Northern Yukon to suggest that the United States of America and Canada are under some obligation to cooperate in respect of t h e i r shared resources. - i v -TABLE OF CONTENTS Page INTRODUCTION 1 CHAPTER I THE BACKGROUND OF INTERDEPENDENCE 22 CHAPTER II SOURCES OF LAW 3 3 CHAPTER III THE PROCEDURAL OBLIGATIONS AND INTERNATIONAL RIVER BASINS 4 3 CHAPTER IV PROCEDURAL OBLIGATIONS AND TRANSFRONTIER POLLUTION 72 CHAPTER V PROCEDURAL OBLIGATIONS AND TRANSFRONTIER PETROLEUM DEPOSITS 12 3 CHAPTER VI THE WORK OF UNEP ON SHARED RESOURCES 154 CHAPTER VII THE TREND IN INTERNATIONAL COOPERATIVE AGREEMENTS TO PROTECT WILDLIFE 175 CHAPTER VIII THE CASE STUDY AND PROCEDURAL OBLIGATIONS TO COOPERATE 191 CONCLUSION 2 27 APPENDIX I 2 31 BIBLIOGRAPHY 2 37 - v -ABBREVIATIONS CWS Canadian W i l d l i f e Service ECE United Nations Economic Commission for Europe EEC European Economic Community GEMS Global Environmental Monitoring System ICJ International Court of Justice ICSU International Council for S c i e n t i f i c Unions IJC International Joint Commission ILA International Law Association ILC International Law Commission IUCN International Union for the Conservation of Nature and Natural Resources MSY Maximum Sustained Y i e l d OAU Organization of African Unity OECD Organization for Economic Co-operation and Development PCIJ Permanent Court of International Justice RICNT Revised Informal Negotiating Text of UNCLOS III SCAR S c i e n t i f i c Committee for Antarctic Research UNCLOS Third United Nations Conference on the Law III of the Sea UNEP United Nations Environment Programme - 1 -INTRODUCTION. During the past quarter of a century, several proposals suggesting the creation of an international w i l d l i f e range between North East Alaska and the Northern Yukon have been made. More recent proposals for the region have tended to focus upon the international protection of the migratory Porcupine Caribou herd. A. North East Alaska and Northern Yukon Preparatory studies of the b i o l o g i c a l importance of the region were carried out i n the early twentieth century by Olaus Murie. Further work was completed i n the 1950's by A. Starker Leopold and Frank Fraser Darling. They concluded that: (t). he eastern Brooks Range sloping down to the A r c t i c P l a i n on the north and to the Yukon v a l l e y on the south would be an i d e a l A r c t i c wilderness area. Not only would such a reservation serve to maintain a sample of the primitive northland for pos t e r i t y , but i t could be a base for long-term ecological studies of the A r c t i c f l o r a and fauna. 1 Pressure from A r c t i c experts and environmentalists followed, and despite opposition from mining i n t e r e s t s , i n December 1960 the United States Secretary of the I n t e r i o r , Fred A. Seaton, established the A r c t i c National W i l d l i f e Range by Public Land Order 2214, for the preservation of i t s unique 2 w i l d l i f e , wilderness and recreational values. This protection extended to an area of some 8.9 m i l l i o n acres i n the north east of Alaska, north of the Porcupine River and east of the Canning River. At the same time, e f f o r t s - 2 -were made to encourage Canada to give protection to a similar area, but because no environmental threat was perceived at the time, no action was taken. With the discovery of o i l and gas at Prudhoe Bay i n 1968 however, the demand for some formal protection for the herd and habitat grew. Concern led to the c a l l i n g of the A r c t i c International W i l d l i f e Range Conference, October 21 and 22, 3 197 0. This Conference, organized by Dr. Andrew Thompson of the Faculty of Law of the University of B r i t i s h Columbia, was the f i r s t formal serious discussion of an int e r n a t i o n a l w i l d l i f e range, although the focus was undoubtedly Canadian. The Conference recommended the establishment of the A r c t i c International W i l d l i f e Range (Canada) under the T e r r i t o r i a l Lands Act. The Conference's l e g a l committee discussed the d e s i r a b i l i t y of giving the range international status, and decided that the best approach would simply be the development of informal working arrangements. This recommendation was adopted i n substance by the f u l l Conference. Although the A r c t i c International W i l d l i f e Range Society (Canada) was formed as a d i r e c t r e s u l t of the Conference, 4 further i n i t i a t i v e s have come from other sources. In 1972 the proposals were brought to the attention of the IUCN meeting i n Banff, and the General Assembly of that organization passed a resolution recognizing that the range constituted a "magnificent sample of the A r c t i c region of great significance not only for North America but for the world. - 3 -At t h i s time the area envisaged for the Canadian side of the Range followed the Porcupine and B e l l Rivers, then to the Blow River, along the A r c t i c coast with the western boundary being provided by the Yukon/Alaska boundary. Multiple use and native p a r t i c i p a t i o n were emphasized i n these plans. Interest i n the area was rekindled with the publication of the Berger Report i n Spring 1977. Mr. Justice Berger was mandated to inquire into proposals i n t e r a l i a to b u i l d a gas pipeline from Prudhoe Bay across the north of the Yukon to the Mackenzie Delta; proposals which might c l e a r l y have prejudiced further consideration of the area as a wilderness range. Mr. Justice Berger urged that the Canadian government should reserve the Northern Yukon as a "wilderness 6 park", the f i r s t stage of which should be immediate withdrawal of the area under S.19(c) of the T e r r i t o r i a l Lands Act. The area he proposed was much the same as that considered by the A r c t i c International W i l d l i f e Range Conference. Mr. Justice Berger was aware of the previous American action, and considered that together the 18 m i l l i o n acres would be large enough to provide for the long-term well-being of the region's fauna. S i g n i f i c a n t l y , he also pointed out that "Management of major transboundary resources such as the Porcupine Caribou herd might require formal international agreements instead of the informal cooperation that now works so well in Glacier-Waterton Park, where - 4 -transboundary movements of the populations are not 7 s i g n i f i c a n t . " Again Berger emphasized the need to involve affected Indians and Inuit i n the creation and management of the area. One of the major s o c i a l consequences of the Berger Inquiry was the p o l i t i c i z a t i o n of the native people, and since then the native people themselves have put forward t h e i r own proposals for dealing with the land. In May 1977 the Committee for O r i g i n a l People's Entitlement (COPE) presented i t s I n u v i a l u i t Nunangat proposals to the Canadian government. The Proposal suggested that the federal government should endeavour to conclude cooperative management agreements and arrangements with other affected countries for species which 9 cross international boundaries. F i n a l l y , the people of Old Crow proposed on March 14, 1978 that: 1. The Government of Canada l e g i s l a t e and negotiate with the Government of United States, an A r c t i c Wilderness Range i n northeastern Alaska and northern Yukon; 2. That the birds and w i l d l i f e i n the above areas are international i n status and therefore require international protection; 3. That the above request w i l l not include the Old Crow Fla t s area, as i t i s negotiable under the Yukon Indian Land Claims Package. 10 The Canadian government i t s e l f began to move af t e r the presentation of the Berger repomt, A p r i l 15, 1977, and the r e j e c t i o n on July 4, 1977 of the A r c t i c coastal gasline proposal by the National Energy Board. In January 197 8, - 5 -Hugh Faulkner, then Minister of Indian and Northern A f f a i r s , i n i t i a t e d public consultation on possible establishment of a national wilderness park of at l e a s t 5 m i l l i o n acres bordering the United States A r c t i c W i l d l i f e Range.''""'" This was followed up by more s o l i d action. On July 6, 1978 an area of 15,000 square miles i n the northern Yukon was 12 withdrawn by Faulkner under the T e r r i t o r i a l Lands Act. At the same time, Len Marchand, then Minister of the Environment, announced that the Porcupine Caribou herd must be managed on both sides of the border as an ecological unit, and that therefore Canada would open negotiations with the United States. These discussions have begun and are at present on going. Both the United States and Canadian Draft Conventions have been c i r c u l a t e d and subjected to c r i t i c i s m by native groups and p u b l i c - i n t e r e s t organizations. The whole thrust of these drafts i s for a convention having as i t s . f o c u s the protection of the caribou. The land receives international recognition and protection only as e s s e n t i a l habitat of the caribou. Thus, from an early emphasis on an international w i l d l i f e range, i t i s possible to i d e n t i f y a swing towards a species-based convention. Only i f the habitat protection clauses are strong w i l l the o r i g i n a l proposals have been f u l f i l l e d . The reasons for the change of emphasis are not hard to f i n d . The most v i s i b l e a t t r i b u t e and e s s e n t i a l c r i t e r i a of sovereignty i s a defined t e r r i t o r y . Changes i n ocean regimes - 6 -occur from time to time, and migratory species, by d e f i n i t i o n , come and go, but land t e r r i t o r y remains the major indicator of the nation state. A state cannot lose t e r r i t o r y except by erosion, annexation or cession. Thus, the creation of a t r u l y international w i l d l i f e range administered by a j o i n t commission would be seen as having major implications for sovereignty. The Canadian North i n the eyes of p o l i t i c i a n s i s hardly the place to carry out such an experiment. There are s t i l l doubts as to the l e g a l status of the North West Passage and the Canadian A r c t i c Archipelagic waters. The Manhattan voyage added doubts to the mind of the Canadian public, hardly resolved by the A r c t i c Waters P o l l u t i o n 13 Prevention Act. In addition, the size of the proposal i n a region which could possibly sustain hydrocarbon production, marks i t o f f from the informal administrative arrangements covering the Glacier-Waterton Lakes Park and the Wrangell-14 St. E l i a s Park. The special circumstances of the Roosevelt-15 Campobello Park preclude.it as a useful analogy. O f f i c i a l s i n Canada's Department of External A f f a i r s c e r t a i n l y take the view that r e l a t i o n s between the two countries should 16 be kept as informal as possible. They place no value on international cooperation as an end i n i t s e l f . The opinion of External A f f a i r s seems to be that a formal convention for the caribou i s only j u s t i f i e d because caribou s p e c i a l i s t s within the Canadian W i l d l i f e Service have intimated that i t i s e s s e n t i a l for r a t i o n a l management of the caribou herd. One suspects that the international resource - 7 management precedents posed by U.S./Canadian b i l a t e r a l agreements made a formal fishery convention more a t t r a c t i v e for the management of a l i v i n g resource. F i n a l l y , one can say that while the proposal for an international w i l d l i f e range may appear rather abstract and i d e a l i s t i c , the problems presented by native peoples hunting a migratory resource, suggest a clear and present need because of the p o s s i b i l i t y that over-harvesting on one side of the border may lead to a decline of the stock. I t w i l l be argued here, however, that t h i s attempt to di s t i n g u i s h the proposals i s misconceived. Both proposals concern resources which may be i d e n t i f i e d as i n t e r n a t i o n a l l y shared. The caribou i s a shared resource because i t regularly migrates across the international boundary and derives ess e n t i a l sustenance from each state. T r a d i t i o n a l l y native people i n both states harvest the stock, and therefore neither state can be said to have an exclusive r i g h t to use the herd. The international status of the ecosystem of the western A r c t i c can be posited on several grounds. F i r s t l y , one essen t i a l element of the ecosystem i s the migratory caribou 17 herd. Secondly, the phytogeographic "types" of the region do not suddenly stop at the international boundary. F i n a l l y , the coastal region i n both states and the Fla t s area around Old Crow constitute a v i t a l l y important breeding area for ducks and geese which migrate annually from Southern Canada and the southern states. These observations - 8 -e s t a b l i s h the shared nature of the resource, but both the COPE Agreement-in-Principle and the IUCN resolution quoted e a r l i e r go further than t h i s . They recognize that the resources i n question are not merely of international significance as between the United States and Canada, but of global s i g n i f i c a n c e . This claim i s based upon the 18 unspoilt nature of the ecosystem, and i t s d i v e r s i t y . I t recognizes the immense h i s t o r i c a l and archaeological value of the region and that the region contains one of the few areas that escaped g l a c i a t i o n during the Pleistocene, i n North America. If one accepts that the region i s of global si g n i f i c a n c e , the question that needs to be considered i s whether or not t h i s r e s u l t s i n any l e g a l l i m i t a t i o n s on the capacity of the United States and Canada to act as they f e e l f i t i n the region. This thesis examines the procedural obligations which are imposed upon the United States and Canada as a r e s u l t of c l a s s i f y i n g the caribou and the western A r c t i c ecosystem as a shared resource. The applicable obligations w i l l be developed from a detailed study of three relevant resource regimes: international r i v e r basins, t r a n s f r o n t i e r petroleum deposits and t r a n s f r o n t i e r p o l l u t i o n . Support w i l l also be drawn from the work of the United Nations Environmental - 9 -Programme (UNEP) on shared resources and relevant general p r i n c i p l e s of law derived from state treaty practice i n w i l d l i f e conservation. These procedural obligations are set against the background of a changing concept of international law: a recognition of the fact of i n t e r -dependence and a move from a law of co-existence to a law of cooperation. The sources of law on which special reliance i s placed w i l l also be examined. F i r s t l y , however, we sh a l l consider the leg a l consequences of common property resources, and the relevance of the resource regimes chosen for analysis. B. Common Property Resources Each of the resource regimes chosen i n t h i s study and the two examples to be considered, deal with common property resources. P o l l u t i o n i s almost a common property problem in reverse. I t i s usually transmitted by common resources such as the a i r or international waters, but i s also, as Garrett Hardin pointed out, an example i n i t s own r i g h t . "Here i t i s not a question of taking something out of the commons, but of putting something i n . . . The calculations of u t i l i t y are much the same as before. The r a t i o n a l man finds that his share of the costs of the wastes he discharges into the commons i s less than the cost of pu r i f y i n g his wastes before releasing them. Since t h i s i s true for everyone, we are locked into a system of 'fouling our own nest' so long as we behave only as independent, r a t i o n a l free enterprisers." - 1 0 -In the case of r i v e r s i n an unregulated s i t u a t i o n , i t c l e a r l y benefits each state to attempt to monopolize as much of the resource as possible. The state that acts f i r s t and u n i l a t e r a l l y i s l i k e l y to obtain a greater benefit than i t would from a r a t i o n a l , c a r e f u l l y worked out master plan for the whole r i v e r basin involving a l l basin states. The costs of such u n i l a t e r a l action are external; one state's gain i s another's l o s s ; a t o t a l l y unregulated s i t u a t i o n which leads to a f r e e - f o r - a l l i n which each state s t r i v e s to maximize i t s benefits. The c l a s s i c a l example of the international common property resource i s , of course, the natural resources of the high seas imbued with the "open-access" ideas of Grotius. The following further analogies may be drawn between inte r n a t i o n a l r i v e r basins and the two issues of the case study. F i r s t l y , a l l involve renewable resources; r i v e r s w i l l continue to be replenished and the caribou w i l l continue to reproduce unless c e r t a i n steps are taken 20 which threaten the very basis of that resource. Both resources are natural and have the c h a r a c t e r i s t i c that 21 use may be eithe r consumptive or non-consumptive. Both resources "migrate" i n a sense across international boundaries. Damage to the resource i n one state a f f e c t s i t s use i n another i n both cases. S i m i l a r l y , over-harvest or use i n one state correspondingly reduces - l i -the potential benefit to the other state. Many d i s t i n c t i o n s may of course be drawn between the two resources, but very few w i l l be of any value to t h i s study. One p r a c t i c a l d i s t i n c t i o n i n degree may be drawn. International r i v e r s are a resource of great economic value to states and are becoming increasingly so as t h e i r value for i r r i g a t i o n and the generation of power i s r e a l i z e d . Economic value leads d i r e c t l y to p o l i t i c a l concern and s e n s i t i v i t y . On the other hand, the economic value of both the caribou and the A r c t i c ecosystem i s d i f f i c u l t to evaluate, and of lesser p o l i t i c a l and economic significance to the affected states. This difference has the important consequence that i t i s probably easier to reach agreement and to a r r i v e at a t r u l y 22 international solution i n the case of the caribou. The United States and Canada may be more w i l l i n g to accept the existence of international obligations i n t h i s s i t u a t i o n than, for example, a proposal to u t i l i z e an international r i v e r . I t might appear that straddling deposits of hydrocarbons have l i t t l e i n common with either of the aspects of t h i s case study, and i t i s clear that d i f f e r e n t problems are posed by a non-renewable resource. However, these problems a f f e c t the substantive rather than the procedural aspects, since the differences w i l l mainly stem from the fact that a l i v i n g renewable resource requires some form of continuous management, whereas the focus of cooperative development of petroleum resources i s on the coordination of "harvest" or extraction. A shared deposit of petroleum i s an inter n a t i o n a l " - J common property resource. Uncoordinated ex p l o i t a t i o n of a deposit from one side of the f r o n t i e r causes damage to the other state and may, i n certa i n circumstances, even reduce the production of the ex p l o i t i n g party. This i s indeed the "tragedy of the commons", that unregulated and uncoordinated exploitation r e s u l t s not only i n inequitable d i s t r i b u t i o n ( f i r s t come, f i r s t served) but also i n the f a i l u r e to maximize the productivity of a resource. Hardin gives the example of the English commons. Open access leads to over-grazing which reduces the f e r t i l i t y of the commons, with the r e s u l t that even fewer animals may be p r o f i t a b l y grazed i f the grazing i s not t o t a l l y ruined by s o i l or wind erosion. In the present example, coordinated d r i l l i n g and i n j e c t i o n of pressure could maximize production from the resource and usually benefit even the u n i l a t e r a l exploiter. The dangers and potential benefits i n the case study are 25 equally evident. The caribou are open to a l l to be hunted. Each r a t i o n a l hunter perceives that what he does not take w i l l be open to everybody else, and that i n the absence of some form of cooperative arrangement, any attempts he makes as an i n d i v i d u a l to conserve the caribou are l i k e l y -to be thwarted by others. He w i l l therefore tr y to maximize his take. There i s nothing objectionable about t h i s u n t i l the point i s reached where the cumulative - 13 -e f f e c t of a l l the hunting i s such that the annual take exceeds the natural a b i l i t y of the herd to maintain i t s e l f at the same l e v e l . Once t h i s point i s reached (and i t w i l l be assisted by degeneration of habitat and increased access to hunters) decline w i l l be rapid i n the absence of regulation as each hunter t r i e s to maintain his take. The advantages of regulation of access and harvest i n t h i s s i t u a t i o n , and the protection of habitat are obvious. Benefits and the cost of management may be shared, and by maintaining or r a i s i n g the maximum sustained y i e l d of the herd, using established w i l d l i f e management techniques, the productivity of the resource can be maximized. One further pertinent analogy may be drawn. Like r i v e r s and the caribou, hydrocarbons do have some capacity to migrate within the confines of the reservoir. One state's resources may therefore be exploited from the other side of the boundary. At the national l e v e l , there are several ways of dealing with the d i f f i c u l t i e s posed by common property resources. A l l involve r e s t r i c t i o n s upon access or harvest l e v e l s . F i r s t l y , the resource may be reduced to private ownership, either with a single proprietor or j o i n t ownership. This may r e l a t e , for example, to a p a r t i c u l a r species wherever 2 6 i t may be found, or to a l l species within a defined 27 area. Secondly, by intervention of statute, the competent l e g i s l a t i v e authority may l i m i t the harvest of ind i v i d u a l s i n a common property area by, for example, l i m i t i n g the size of the harvest, or i n s t i t u t i n g an "open" and "closed" season for harvesting. Thirdly, affected parties may cooperate, as i n the case of straddling deposits of petroleum by u n i t i z a t i o n at the national l e v e l . U n i t i z a t i o n 2 8 may be required by statute. These are just three of the examples of national methods of mitigating the consequences of common property resources; others would be the use of easements and licences. Not a l l of these national methods are applicable at the international l e v e l . There are l i m i t s on the recognized capacity of a state to expropriate and reduce a common property resource to "private property" or national sovereignty. Control over an international common property resource i s divided. There i s no one authority with even the t h e o r e t i c a l capacity to reduce the resource to national contr o l . I t i s , for example, inconceivable that a state would appropriate the t e r r i t o r y of another to obtain control of a shared common property resource. Legally, a state i s incapable of executing such an action. However, such an action i s not inconceivable where the land or resource i s being expropriated from the commons. Since the Second World War there has been an explosion of national, u n i l a t e r a l claims to continental shelves, exclusive fishery zones and exclusive economic zones. These claims - 15 -have as t h e i r avowed aim the national control of common property resources. Furthermore, i t would appear that 29 such claims have generally been recognized. U n i l a t e r a l action solves some of the problems i n a s e l f i s h , n a t i o n a l i s t i c way, but i t ignores the claims of landlocked 30 states and h i s t o r i c a l uses, and f a i l s to address the problem of straddling hydrocarbon deposits and migratory f i s h stocks. No one state has the authority to promulgate harvest l i m i t s or r e s t r i c t i o n s concerning size or nursery areas or manner of u t i l i z a t i o n i n the absence of recognition of i t s capacity to do so as manifested by sovereignty, a j o i n t property right (as i n a condominium), or a functionally l i m i t e d 31 "sovereign r i g h t " . F a i l i n g then, or i n preference to, an extension of unshared authority, the need i s for i n t e r s t a t e cooperation to develop modified or shared schemes of authority. This second solution to international common property resources can 32 be stated as: a l l states who currently u t i l i z e the resource, or even a l l states who have the r i g h t to u t i l i z e the resource, may, by agreement, provide i n t e r a l i a for r e s t r i c t e d access, thereby re f u t i n g the ess e n t i a l d e b i l i t a t i n g character of common property resources. The c l a s s i c a l example of t h i s - 16 -would be international f i s h e r y agreements. These agreements also epitomize the weakness of arrangements based simply upon current u t i l i z a t i o n (modified shared authority) rather than the r i g h t to u t i l i z e ( f u l l y shared authority). For the d i f f i c u l t y of the former i s that states which are not party to the agreement may begin to u t i l i z e the resource, thus endangering the achieved consensus. A fam i l i a r example would be the Japanese and Russian harvest of the U.S./Canadian regulated f i s h stocks 33 i n the Northern P a c i f i c . The r a t i o n a l solution i s either the ad hoc extension of the management regime to new 34 parties as they appear on the scene or the preemptive design of the agreement to make provision for, and include i n the negotiations, a l l states that can claim a r i g h t to use the resource i n question. This more modern and h o l i s t i c attitude can be seen i n the approach of the present law of the sea Conference to marine resource problems. A l l states, including landlocked states, have equal rights of p a r t i c i p a t i o n i n high seas f i s h e r i e s , and have been granted guaranteed access to a share of the surplus resources of exclusive economic zones i n the l a t e s t 35 negotiating text of that Conference. The approach has the further advantage that a more equitable c r i t e r i o n f or resource d i s t r i b u t i o n i s used than h i s t o r i c a l p a r t i c i p a t i o n . The solution of agreement to international common property resources finds a basis i n domestic law as i l l u s t r a t e d by agreed u n i t i z a t i o n of straddling hydrocarbon deposits. - 17 -In the domestic law si t u a t i o n , i f the respective parties do not consider i t to be to t h e i r i n d i v i d u a l advantage to enter into a cooperative arrangement that w i l l maximize the returns from the resource, the relevant competent l e g i s l a t i v e authority may compel the parties to enter into such an arrangement. In the international forum t h i s i s not, of course, the case, since there i s no competent central l e g i s l a t i v e authority. In i t s absence one must therefore look to general customary rules of international law, which may require either that countries cooperate d i r e c t l y i n the exploration and conservation of shared common property resources, or they may require that countries take steps which i t i s hoped w i l l lead to or encourage cooperation. The emphasis of t h i s thesis w i l l be on the l a t t e r ; the question of procedural obligations upon states, such as the duty to give notice of new projects, the duty to give notice of hazards, and the duty to negotiate, to name but a few. - 18 -FOOTNOTES INTRODUCTION 1. Quoted i n G. L. C o l l i n s , Background Information for use i n connection with a proposal for an A r c t i c  International W i l d l i f e Range, i n Proceedings of the A r c t i c International W i l d l i f e Range Conference, October 21, 22, 1970, 6 U.B.C. Law Review, 3-11 at 9 (1971), (hereafter c a l l e d Proceedings). 2. Under the broad authority of the President of the United States which was delegated to the Secretary of the Interior by Executive Order 10355, 26 May, 1952. See J. D. Findlay, History and Status of the A r c t i c National  W i l d l i f e Range, Proceedings, i b i d . , 15-26, and R.M. Leonard, Co-operation along Alaska's Border, L i v i n g  Wilderness, [July/Sept.'78] 5-7. 3. For a report, see Proceedings, supra, n . l . 4. The Society i s at present undergoing a r e v i v a l due to a desire by another non-governmental organization, the Canadian A r c t i c Resources Committee, to r e v i t a l i z e i t as a lobbying group with a p a r t i c u l a r concern for t h i s area of the A r c t i c . 5. IUCN, 12th Technical Meeting, Banff, Canada, September 11-16, 1972, Conference Resolution on Establishing an International W i l d l i f e Range i n Alaska and the Yukon. 6. T. Berger, Northern Frontier; Northern Homeland, the  Report of the Mackenzie Valley Pipeline Inquiry, Vol.1 at 46. Berger 1s terminology ( i . e . "park") may have had more unfortunate consequences than he would have envisaged. "Park" c l e a r l y c a r r i e s conceptions of public access and perhaps even encouragement of v i s i t o r s . Some consider i t to be incompatible with the term "wilderness". 7. Ibid., at 48. 8. In u v i a l u i t Nunungat, the Proposal for an Agreement-in-P r i n c i p l e to achieve the Settlement of In u v i a l u i t Land Rights i n the Western A r c t i c Region of the Northwest and Yukon T e r r i t o r i e s (Inuvik: COPE). 9. Ibid., at para 10(3)g(i). 10. Reprinted i n R. F. Keith and J.B. Wright (eds.) Northern  Transitions I I , at 251 (1978) . - 19 -11. DIAND Communique 1-7792, "Faulkner Announces Public Consultation for Six A r c t i c Wilderness Areas i n National Park System". 12. P.C. 1978-2195, 5 July 1978. Most recently COPE has reached an agreement i n p r i n c i p l e with the federal government which states that an area of at l e a s t 5,000 square miles w i l l be set aside as a national wilderness park (Jnuvialuit Land Rights Settlement: Agreement i n P r i n c i p l e (1978) s.12 at 61). 13. A r c t i c Waters Pol l u t i o n Prevention Act, R.S.C. 1970, C.2 (lst.Supp.). 14. See, J. E. C a r r o l l , International Peace Parks: A Concept and a Proposal, unpublished paper presented at the Conference on Canadian National Parks: Today and Tomorrow, Banff, Alberta, October 1978. 15. Agreement between Canada and the U.S.A. r e l a t i n g to the establishment of the Roosevelt Campobello International Park, Washington, D.C., 22 January 1964 TIAS 5631. The previous owners were prepared to dedicate the Canadian island to the memory of President Roosevelt, i f accepted by both the United States and Canadian governments. 16. Views obtained from an interview t i h Ms. Ann Park and Mr. Alan Bowker, July 27, 1979. 17. P o r s i l d considered the three d i v i s i o n s may be: (a) A r c t i c coastal p l a i n s , (b) A r c t i c - a l p i n e province of B r i t i s h BaEn and Richardson Mountains, (c) Peel Plateau and Porcupine P l a i n , quoted i n A.M.Pearson, W i l d l i f e Resource and i t s  Conservation i n Northern Yukon T e r r i t o r y , i n Proceedings, supra, n . l , 20-26 at 20. 18. The region i s valuable for raptors, swans, ducks, geese, beluga and bowhead whale, polar bear, walrus, ringed and bearded seal, g r i z z l y and black bear,, moose, wolves, Dall's sheep, wolverines, lynx, foxes and of course the caribou. 19. Garrett Hardin, The Tragedy of the Commons, Science 1243, 1245 (13 December, 1968). 20. Such as continual harvest beyond maximum sustained y i e l d l e v e l s , or disruption of range. - 20 -21. A dam for the generation of hydro-electric power permits the water to be used for i r r i g a t i o n which i s consumptive. Caribou have a value both for hunting (consumptive) and an aesthetic and "wilderness" value (non-consumptive). Whether any value be placed on t h i s analogy, however, i s questionable. For r i v e r s , i t would appear sensible to oblige n o t i f i c a t i o n whether the use i s consumptive or not, since t h e i r way a f f e c t the qu a l i t y of the flow. For the caribou and A r c t i c ecosystem, however, there i s probably no need to n o t i f y the other party of non-consumptive uses, since they do not a f f e c t the enjoyment of the resource by the other party, unless, for example, tourism reaches i n t o l e r a b l e l e v e l s . 22. Attempts to reach agreement on the cooperative development of international r i v e r basins are prolonged and complex. For an analysis of the po l i c y formation processes of the United States and Canada i n t h i s regard, see N. A. Swainso.n, C o n f l i c t over the Columbia (1979). The po l i c y formation process might be s i m p l i f i e d i n the present case because of the absence of a p r o v i n c i a l component i n Canada. 23. The q u a l i f y i n g " i n t e r n a t i o n a l " i s used because na t i o n a l l y the resource may be owned by one person or group. Thus, i t i s only on the international l e v e l that e x t e r n a l i t i e s may be recognized. 24. This, of course, increases the l i k e l i h o o d of cooperative development. An example where the u n i l a t e r a l exploiter would not benefit from cooperation would be the following: Deposit l i e s underneath states A and B but p r a c t i c a l l y a l l within A. A, by coordinating a c t i v i t y within i t s own t e r r i t o r y , can extract at lea s t the equivalent of a l l hydrocarbons l y i n g underneath i t s t e r r i t o r y from the common deposit without the cooperation of B, even though the reduction i n pressure might mean that B could not extract i t s share at a l l . In t h i s case, only B would stand to benefit from cooperative development, although cooperation would also increase t o t a l production from the f i e l d . 25. I t may be pointed out that both the caribou and the ecosystem as a whole could be c l a s s i f e d as national as well as international common property resources. This compounds the d i f f i c u l t i e s involved. 26. In the United Kingdom, examples would be the "Royal" swans and deer. See A. Scott, The Economics of  Conservation, 1973 (Rev.Ed.) 173 et seq. 27. For example, private f i s h i n g on a r i v e r . In the one case, i t i s the species that i s reduced to private property. In the other, i t i s the land. - 21 -28. Okla. Stat. Ann. L i t 52, SS287.1 - 287.15 (1951) as amended, (Supp.1966). 29. A l l these claims are recognized i n the Revised ICNT of the Third Law of the Sea Conference, U.N. Document A/Conf. 62/W.P. 10/Rev. 1, 28 A p r i l , 1979, reprinted i n 18 I.L.M. 686 (1979), which provides prima f a c i e evidence of international law; continental shelf, A r t i c l e 76; E.E.Z., A r t i c l e 55, Exclusive Fishery Zones A r t i c l e 62. 30. Many states though have negotiated phase-out agreements with other states h i s t o r i c a l l y active i n appropriated f i s h e r i e s . 31. Ice, e.g. Conventions on the Continental Shelf, A r t i c l e 2(1), Geneva, 29 A p r i l , 1958, 499 UNTS 311, but also exclusive fishery zones and exclusive economic zones are a species of sovereign r i g h t . See Revised ICNT, supra, n.22, A r t i c l e 56: "In the Exclusive economic zone, the coastal state has: (a) sovereign rights for the purposes of exploring and ex p l o i t i n g , conserving and managing the natural resources...". 32. The smaller the number of participants the easier i t w i l l be to reach agreement due to increased homogeneity. 33. The U.S./Canadian halibut fishery i s regulated by the International P a c i f i c Halibut Convention (2 March, 1953), 22 UNTS 78). The U.S./Canadian/Japanese fishery i s regulated by the International North P a c i f i c Fisheries Convention (9 May, 1952, 205 UNTS 80) which provides for Japanese abstention from major f i s h stocks, even when found inside exclusive fishery zones. 34. This may present p r a c t i c a l d i f f i c u l t i e s i n terms of the renegotiation of agreements. 35. Revised ICNT, supra, n.22, A r t i c l e 69 and Part X. See also the development of the area beyond the l i m i t s of national jurisdiction :v.as the "common heritage of mankind". - 22 -THE BACKGROUND OF INTERDEPENDENCE If World War II and national socialism represented the zenith of twentieth century nationalism and the nadir of international cooperation, the developments since then i n international law and r e l a t i o n s , beginning with the United Nations Charter, represent a slow move towards the cooperative solution of world problems. This trend can be perceived i n the writings 1 2 3 of l i b e r a l j u r i s t s such as Jenks, Friedmann and Schwarzenberger , 4 theories of interdependence i n international r e l a t i o n s , and "small earth" concepts discussed from a l e g a l perspective 5 6 by writers such as Falk and Schacter. It i s also r e f l e c t e d i n such international developments as the U.N. Conference on the Human Environment, Stockholm 1972. At a more s p e c i f i c l e v e l , cooperative trends may be i d e n t i f i e d i n the three national resource regimes to be discussed i n t h i s thesis. The procedural obligations i d e n t i f i e d i n each of the three regimes and applied to the two aspects of the case study must be seen against t h i s general background. A. Interdependence It i s t r i t e to simply assert that there i s a growing interdependence amongst the "nation states" of the world community, and i t i s hardly necessary or relevant to attempt to l i s t even a small percentage of examples of interdependence. However, a few examples w i l l be noted which seem to have a p a r t i c u l a r bearing upon the future discussions. The complex in t e r r e l a t i o n s h i p s of the natural environment have - 23 -become more apparent with the explanation and application of terms such as biosphere and ecosystem. For example, the disturbance of predator/prey relationships i n one small area can have d r a s t i c consequences for a much larger region; the degradation of the habitat of a migratory species i n one state may r e s u l t i n the extinction of that species across i t s whole range; t e s t i n g of nuclear warheads i n one area may cause f a l l o u t i n regions as remote as Antarctica or the Canadian A r c t i c . Interdependence i s also apparent i n f i e l d s such as economics and communications. Recognition of t h i s trend i s clearest i n the l i t e r a t u r e of international relations,, p a r t i c u l a r l y i n the functional school. This school i s characterized by Haas 1 aims to minimize the role of p o l i t i c s "to replace the government of men by the administration of things". Haas believes that we should confront tasks and solve common problems on an ad hoc basis. Thus, international integration w i l l be a slow creeping process. There are, however, dangers inherent in the increasing awareness of interdependence, since " i t i s l i k e l y to lead to a spawning of disparate systems as new 7 facts of dependence are revealed". Haas, of course, i s primarily concerned with the e f f e c t of interdependence on the structure of international organizations. Thus he states that: While neither co-operation nor c o n f l i c t i s uniquely predicated by high interdependence, system change i s . No s p e c i f i c i n s t i t u t i o n a l - 24 -c e n t r a l i z a t i o n toward world government i s implied; high interdependence cannot be equated with the march toward world federation. However, increasing interdependence i s  associated with a thrust toward more di f f u s e  systems changes because new regulatory techniques  must be found to cope with the unanticipated  problems which accompany any new d i v i s i o n s  of labour. 8 The " c r i s i s of interdependence" he argues, demands the creation of new international i n s t i t u t i o n s . While i t may be correct to say that t h i s follows necessarily from interdependence and that cooperation does not, i t must surely be conceded that cooperation between affected states i s one means of coping with the perceived c r i s i s even i f i t does not take an i n s t i t u t i o n a l form. Haas quotes with approval Oran Young's d e f i n i t i o n of interdependence. Young says that interdependence exists to "the extent to which events occurring i n any given part or within any component unit of a world system a f f e c t (either p h y s i c a l l y or perceptually) events taking place i n 8a each of the other parts or component units of the system". Interstate cooperation, whether i n s t i t u t i o n a l i n form or procedural (obligations to n o t i f y , consult and negotiate) provides the means with which to deal with the problem. I t f a c i l i t a t e s the i d e n t i f i c a t i o n of e x t r a - t e r r i t o r i a l e f f e c t s , an evaluation of t h e i r extent and the designing of common solution to the problems. Interdependence i s p a r t i c u l a r l y v i s i b l e on a regional basis because i t i s more intense and prevalent. There i s therefore a greater need to coordinate regional a c t i v i t i e s , and no need to elevate the problems to global concerns. If one p a r t i c u l a r facet of interdependence can be dealt with l o c a l l y then i t i s more e f f i c i e n t to deal with the problem in that manner to avoid the introduction of e x t r i n s i c i n t e r e s t s . This assumes that the world community accepts that the involved states should be able to determine the problem for 9 themselves. Regional solutions may be p a r t i c u l a r l y apt for international resource areas such as the Mediterranean or the B a l t i c . Concentrating on the functional management of the composite resources of such a region, writers have advocated some unl i k e l y regimes. Thus Oran Young has suggested the need for a "Beringian regional authority" to treat the region as an integrated unit. Beringia may be described as the marine areas extending to the north and south of the Bering S t r a i t , together with the associated coastal l i t t o r a l s of the mainland of North America and eastern S i b e r i a as far south as the 49th P a r a l l e l and the Kamchatka Peninsula respectively.''""'" The main actors within t h i s region are the United States, Canada and the U.S.S.R., but certain aspects of the region would also involve Japan and Korea and perhaps long distance f i s h i n g states such as Poland. The resources which Young suggests would benefit from international management include f i s h and marine mammals, and hydrocarbons. Substantial benefits would also be gained by cooperative arrangements for environmental qu a l i t y and navigation and transportation. This study lacks something i n p o l i t i c a l f e a s i b i l i t y , but i t i s i n t e r e s t i n g that the frame of the analysis should be based not on sovereign nation states but upon the management needs of the region, emphasizing that optimum production requires cooperation. Once again the focus i s i n t e r n a t i o n a l , but i t i s suggested that t h i s i s r e a l l y "jumping the gun". Institutions r e s u l t from prolonged negotiation and consultations, and therefore one should f i r s t consider whether there i s any obligation upon neighbouring states to cooperate over the management of shared common property resources. While scholars of international r e l a t i o n s have devoted substantial e f f o r t to describing and explaining interdependence, j u r i s t s for the most part have ignored the procedural prerequisites for i n s t i t u t i o n a l and substantive solutions. Legal responses may be divided into three categories. F i r s t l y , there are the "small world" legal t h e o r i s t s such as Falk, who argue d i r e c t l y from interdependence. Secondly, there are writers such as Jenks and Friedmann, who approach the problem from a d i f f e r e n t perspective. They work outwards from general p r i n c i p l e s of law such as s i c utero tuo. F i n a l l y , there are writers such as Levin and Bourne who have commented on the procedural obligations underlying the cooperative conservation and development of shared resources. Richard Falk argues that mankind i s endangered by a c r i s i s of planetary proportions mainly caused by technology and a r i s i n g population. In the face of t h i s , uncoordinated national action i s simply not s u f f i c i e n t to solve the problem. "An endangered planet c a l l s for stronger cooperative patterns of behaviour and for more embracing 13 forms of organization." Thus he advocates a world government approach, and the a b o l i t i o n of what he regards as outdated theories of national sovereignty. The second group of j u r i s t s u t i l i z e s a more t r a d i t i o n a l method of argument. They do not begin from an assumption of world c r i s i s . Rather, they develop theories of cooperation from the manifestly increasing intercourse between states. Friedmann i d e n t i f i e s three d i f f e r e n t l e v e l s of i n t e r n a t i o n a l law: "the international law of co-existence, the i n t e r n a t i o n a l law of cooperation; universal concerns and the international 14 law of cooperation; regional groupings The international law of co-existence i s the t r a d i t i o n a l c l a s s i c a l system of international law based on national sovereignty and the l e g a l equality of nations. "The p r i n c i p a l object of these rules of co-existence i s the regulation of the conditions of mutual diplomatic intercourse and, i n p a r t i c u l a r , the rules of mutual respect for national 15 sovereignty." Although law on t h i s l e v e l s t i l l continues to expand, i t i s hampered by the p r o l i f e r a t i o n of states and the problems posed by interdependence. - 28 -Modern needs have therefore required the development of two other " l e v e l s " of law. Friedmann suggests that the law of cooperation: universal concerns, i s a pos i t i v e attitude, catering for those common int e r e s t s on which the views of states are not too divergent; areas such as communications, transport and health. Secondly, Friedmann refers to the law of cooperation: regional groupings, which he suggests "may well be the most f e r t i l e and intensive source of international l e g a l development", because of the more homogenous nature of the involved states. I t should be noted, however, that while the l e v e l of "universal concerns" does emphasize a normative rather than an i n s t i t u t i o n a l ground, the l a t t e r l e v e l emphasises, i n "regional groupings", i n s t i t u t i o n a l development. Even i n the former case, Friedmann f a i l s to give the law of cooperation a s o l i d content; for the most part he i s content to evidence his general p r i n c i p l e by the increasing contact which nations have over matters of common intere s t such as telecommunications and a i r services. His emphasis i s on a law of_ cooperation rather than an obligation to cooperate, on a change or expansion of the subject matter rather than as a p r i n c i p l e which w i l l force states into closer r e l a t i o n s h i p s . His "law" i s of a s e l f - f u l f i l l i n g nature, looking back at the increasing intercourse between states. Schwarzenberger 1s idea i s si m i l a r , although the jargon i s s l i g h t l y d i f f e r e n t . Schwarzenberger refers to the international law of r e c i p r o c i t y and the international law of coordination. The former embodies t r a d i t i o n a l attitudes to international law. Interstate r e l a t i o n s are based upon a balance of power, losses and benefits. "Both parties to... a bargain are content i f they are convinced that they have received more than, or at least as much as, they have 16 given." This p r i n c i p l e w i l l c l e a r l y inform the extent to which states cooperate over a shared resource, but only to the extent that both stand to gain by cooperation and lose by u n i l a t e r a l action. If one state i s not capable of taking u n i l a t e r a l action, perhaps because of a lack of technical development, then r e c i p r o c i t y w i l l not dictate cooperation. The law of coordination which Schwarzenberger also refers to as community law, has the function of "promoting the co-ordination of a c t i v i t i e s i n the i n t e r e s t of the community 17 by the r a t i o n a l i z a t i o n of customary rules of behaviour". States act not out of s e l f i n t e r e s t but from a sense of community. They should cooperate i n the conservation and u t i l i z a t i o n of shared resources i n order that the maximum possible benefit be derived from that resource. Wilfred Jenks draws a sharp d i s t i n c t i o n between interdependence and independence. Independence can no longer be presumed, "we no longer have 'coexisting independent communities', but communities where co-existence depends on the f u l l - 30 -18 recognition of t h e i r mutual interdependence." However, Jenks, l i k e Friedmann and Schwarzenberger, can of f e r l i t t l e more than a description of the changing emphasis within international r e l a t i o n s . The d i f f i c u l t y i s how to promote the rule of law so that i t a s s i s t s rather than r e s t r i c t s the recognition and solution of the p o s s i b i l i t i e s posed by interdependence. The tools are the same. Reference must s t i l l be had to t r a d i t i o n a l sources but guided "by the conviction that the interdependence rather than the independence of states i s the basic conception of contemporary international 19 . law". Consequently, the role of procedural obligations should be emphasized. How may states be forced to cooperate? This i s the focus of the t h i r d group of j u r i s t s which has been i d e n t i f i e d . They take the view that " i n the absence of hard and precise rules for a l l o c a t i o n there i s a r e l a t i v e l y greater need for specifying requirements for 20 advance notice, consultation, and decision procedures".. In other words, one should consider whether d e f i c i e n c i e s i n substantive law may be remedied by procedural obligations. S i r Gerald Fitzmaurice, i n a recent survey of inte r n a t i o n a l law, concluded that the "obligation of co-operation" has gone "a f a i r way to acceptance as a general p r i n c i p l e of international law". I t involves "an obligation of good f a i t h and a duty to recognize a common or general i n t e r e s t where th i s manifestly exists,, and a willingness to p a r t i c i p a t e i n measures for the promotion of that common int e r e s t and - 31 -21 at l e a s t to r e f r a i n from steps injurious to i t " . I t i s suggested, however, that one can go beyond t h i s cautious statement. By concentrating on the procedural obligations within s p e c i f i c regimes, i t i s hoped to show that there are well recognized obligations upon states to cooperate i n the conservation and u t i l i z a t i o n of shared resources. These obligations may well be capable of a wider application to other resource regimes. I t i s suggested that a discussion of procedural obligations gets to the heart of the interdependence debate. I t goes beyond a mere description of changing concepts of international law., and i t can only be on the basis of i n t e r s t a t e consultation and negotiation that Haas i s able to predict the certainty of further i n s t i t u t i o n a l change. - 32 -FOOTNOTES 1. In various writings including, Law Freedom and- Welfare, 71-82. (1963) , 2. W. Friedmann, The. Changing Structure of International Law (1964) , Law i n a Changing Society, 44 3-482., (2nd.ed. 1972) , and General Course, i n Public International Law (127) I I , Recueil des Cours, 39-246 (1969). 3. Schwarzenberger, The Frontiers of International Law (1962).. 4. e.g. Haas, Beyond the Nation State, 1-92 (1964). 5. R. Falk, This Endangered Planet (1971)'.. 6. 0. Schacter, Sharing the World's Resources (1977). 7. Haas, Is There a Hole i n the Whole?, 2 9 International Organization 827, 860. (19.75). 8. Ibid., emphasis supplied. 8a. Ibid., at 859. 9. This w i l l not always be the case as witnessed by the present law of the sea conference involving a l l the states of the international community, not just coastal and maritime states. 10. Oran Young, Resource Management at the International Level (.1977) . 11. Ibid., at 12. 12. Supra, n.5. 13. Ibid., at 13 14. W. Friedmann, The Changing Structure of International Law at 60. f f (1964) . 15. Ibid., at 60. 16. Supra, n.3 at 15. 17. Ibid., at 14. 18. Supra, n . l at 72. 19. Ibid., at 81 20. Supra, n.6 at 69 . 21. The Future of Public International Law i n I n s t i t u t de Droit International, Livre du Centenarre, 196-329 at 319-320 (1973) - 33 -SOURCES OF LAW The focus of t h i s thesis i s upon the international l e g a l p r i n c i p l e s governing the relat i o n s h i p of the United States and Canada over the migratory Porcupine Caribou herd and the shared ecosystem between North East Alaska and the Northern Yukon. No treaty governs these p a r t i c u l a r aspects of t h e i r r e l a t i o n s h i p , but there i s not a l e g a l void. I t w i l l be argued that general p r i n c i p l e s of law may be established which govern and d i r e c t these re l a t i o n s h i p s . In the absence of s p e c i f i c treaty law between the pa r t i e s , other sources must be consulted and developed. The sources of international law have been ably canvassed by many j u r i s t s and therefore the subject w i l l only be discussed here i n terms of the emphasis which must be placed on p a r t i c u l a r types of sources. From a study of the three regimes, cert a i n p r i n c i p l e s relevant to the whole f i e l d of natural common property resources may be extracted. By a process of deduction and analogy, these p r i n c i p l e s may be applied to the two s p e c i f i c case studies. The argument, therefore, involves a number of steps i n reasoning. From s p e c i f i c situations within each regime, general p r i n c i p l e s may be derived. These p r i n c i p l e s then, inform the development of a series of p r i n c i p l e s at even higher lev e l s of abstraction, which are then, once again, capable of s p e c i f i c application. Each of the three regimes considered ' (international r i v e r basins, straddling petroleum deposits and tr a n s f r o n t i e r pollution) i s a r e l a t i v e l y new f i e l d of international law, e s p e c i a l l y straddling petroleum - 34 -deposits and transfrontier p o l l u t i o n . In a l l three cases great reliance i s placed upon t r e a t i e s as evidence of state practice and as an esse n t i a l component of customary law. General p r i n c i p l e s of international law have l i t t l e a p p l i c a t i o n . In r i v e r basin law, great emphasis i s placed upon the writings of i n f l u e n t i a l groups of j u r i s t s , and i n tr a n s f r o n t i e r p o l l u t i o n law, on the resolutions of i n f l u e n t i a l state groupings such as the Council of Europe and the O.E.C.D. Thus, t h i s f i e l d of law does have some peculiar c h a r a c t e r i s t i c s which may be related to the use of sources. The f i r s t c a l l i n a consideration of sources must be A r t i c l e 38 of the Statute of the International Court of Jus t i c e , according to which law i s composed of international conventions, international customs, general p r i n c i p l e s of law, j u d i c i a l decisions and the teachings of highly q u a l i f i e d j u r i s t s . Professor Kiss, however, suggests that the A r t i c l e 38 approach i s outmoded when extending international law to new f i e l d s , such as space law or environmental law,"1" because i t f a i l s to take into consideration texts of intergovernmental organizations and instead, gives a f a l s e l y elevated position to general p r i n c i p l e s , doctrine and j u d i c i a l decisions. Kiss and others characterize the non-binding decisions, recommendations and declarations of intergovernmental organizations as "soft law", "rules which have to be considered as law insofar as they f i x norms with which states should - 35 -comply, but which cannot be enforced i n the t r a d i t i o n a l 2 meaning of the term". This merely begs the question: to what extent do they f i x norms with which states should comply? The answer must be that i f they are not binding, they cannot to any extent. Only i f the "soft law" i s thought to enshrine e x i s t i n g customary law ought states to comply. Kiss i s therefore saying no more than that soft law may be evidence of state practice insofar as i t r e f l e c t s the agreement of p a r t i c i p a t i n g states. I t has a further r o l e i n extending state consciousness and r a i s i n g the l e v e l of awareness of environmental problems. Although Kiss argues that the teachings of p u b l i c i s t s have declined in importance as a source i n "new law" areas, the opinions of groups of j u r i s t s have become of increasing 3 importance, e s p e c i a l l y i n international r i v e r basin law. Associations of j u r i s t s may s t r i k e a panel or working group of experts to study one p a r t i c u l a r problem very i n t e n s i v e l y for a number of years. The combination of mutual c r i t i c a l analysis and varied c u l t u r a l backgrounds, demand that the r e s u l t s of t h e i r deliberations be treated with the greatest respect. Learned s o c i e t i e s may express t h e i r c o l l e c t i v e opinion not only on what the law i s , but also on what i t ought to be. On the former, J. P. Dobbert suggested i n 1965 that "while t r e a t i e s provide indispensable indications as to p r e v a i l i n g state practice and international custom, the most important contribution towards the development of a coherent system of customary rules of international r i v e r law has 4 undoubtedly been made by learned s o c i e t i e s . . . " In adopting A r t i c l e 38 of the Statute for c l a s s i f i c a t i o n purposes, Dobbert perceived cert a i n d i f f i c u l t i e s . He thought that the c o l l e c t i v e research of learned s o c i e t i e s should be treated as "the teachings of the most q u a l i f i e d p u b l i c i s t s " , but "their endeavours to determine and/or codify the rules of customary international law might be regarded as belonging to the category of 'international custom as evidence of a general practice accepted as law 1".^ The problem with t h i s statement i s that i n determining what the law is_, judgments w i l l have to be exercised i n doubtful areas, although numbers provide some protection against simple disagreements. Thus, while i n f l u e n t i a l groups of j u r i s t s may well serve as a more r e l i a b l e source of law than i n d i v i d u a l p u b l i c i s t s , they do not deserve to be elevated to the p o s i t i o n of custom. Whether "new law" or old, the primary source of international law, i n the absence of applicable international conventions, i s "international custom, as evidence of a general practice accepted as law". Several basic c r i t e r i a must be met before evidence of state practice or usage may be held to constitute customary international law. The onus of proof i s heavy. 1. "The provision concerned should, at a l l events p o t e n t i a l l y , be of a fundamentally non-creating character as could be regarded as forming the basis of a general rule of law." 2. If the period of time i s short over which i t i s argued that a customary rule has developed, then "an indispensable requirement would be that within the period i n question, short though i t might be, state practice, including that of states whose interests are s p e c i a l l y affected, should 7 have been both extensive and v i r t u a l l y uniform..." The implication of t h i s statement i s that i f state practice has evolved over a considerable period of time, i t need not be as unanimous. 3. The s e t t l e d practice (supra) must "be car r i e d out i n such a way as to be evidence of a b e l i e f that t h i s practice i s rendered obligatory by the existence of a rule of law g requiring i t . " This opinio Juris i s by far the hardest point to prove. These three c r i t e r i a have been extracted from the North Sea  Continental Shelf Case as a recent and authoritative review. But t h i s judgment glosses over an apparent d i s t i n c t i o n made in e a r l i e r cases before the I.C.J., between general rules of customary international law and regional or special rules. The point i s important here because the state practice i n the regimes of transfrontier p o l l u t i o n and transfrontier petroleum deposits i s concentrated i n the developed f i r s t world, although the potential l i s t of actors i s much larger. In the Asylum Case, the Court stated: - 38 -The Party which r e l i e s on a custom of t h i s kind must prove that t h i s custom i s established i n such a manner that i t has become binding on the other Party. The Colombian Government must prove that the rule invoked by i t i s i n accordance with a constant and uniform usage practised by the States i n question... 9 This was supported by the Court i n the Rights of United States Nationals i n Morocco Case.^ Two points may be made upon t h i s issue. F i r s t l y , despite the wording of the judgment, c r i t i c s do not believe that the express consent of the state against whom the rule i s being invoked i s necessary."'""'' Secondly, the concept of a regional form of customary law i s p o t e n t i a l l y misleading and dangerous, for i t gives r i s e to the question of which states are within the region. In order to answer t h i s question, i t i s probably necessary to ask which states have consented to the regional norm. Thus i t i s suggested that there i s no such thing as a 11a regional norm of customary international law. The accumulation of evidence of state practice i s a very time consuming, d i f f i c u l t and sometimes impossible task. One p a r t i c u l a r l y clear and accessible form of practice which w i l l be heavily r e l i e d upon i n the succeeding sections i s state treaty p r a c t i c e . To what extent may t r e a t i e s c o l l e c t i v e l y be seen as evidence of usage and a s s i s t the function of custom? I t i s clear that the greatest caution must be exercised - 39 -in giving any international l e g a l significance to the fact that s i m i l a r provisions occur i n many separate t r e a t i e s . A treaty i s prima facie a contract between the pa r t i e s , consent i s an esse n t i a l element. Hayton, i n a sympathetic discussion of the point, c i t e s the c a r e f u l l y considered view of.Hyde: B i - p a r t i t e as well as mult i - p a r t i t e t r e a t i e s are useful repositories and enlightening vehicles of ideas the acceptance of which by international society may be anticipated when they are worthy of i t and when the success of the contractual experiment encourages the assumption of l i k e obligations throughout i t s membership. Agreements between states are thus becoming increasingly regarded as the sources of law as well as furnishing evidence of what the contracting parties are agreed that the law should be. 12 On the other hand, one may ask,why would states put a term in a treaty i f i t i s already a general p r i n c i p l e of customary law? The answer may be for certainty, but Dr. Bourne's point with respect to the obligation to negotiate i s s t i l l v a l i d : "... the inclusion of t h i s provision i n a treaty may suggest not the conviction that customary international law requires consultation and negotiation; but the lack of 13 that conviction". Severe r e s t r i c t i o n s must therefore be placed on the use of tr e a t i e s as evidence of custom and usage. Hayton develops several tests which may be used i n conjunction with those developed from the North Sea Continental Shelf Case. In f u l l , the provisions are: - 40 -1. Widespread s i m i l a r i t y of p r i n c i p l e s and rules in a sizeable number of geographically diverse agreements applied to the same or very similar problems; 2. The passage of considerable time; 3. The absence of at least any recent record of s i g n i f i c a n t state conduct inconsistent with these p r i n c i p l e s and r u l e s ; 4. Some record among states not contractually bound of practice following these p r i n c i p l e s and rules, with or without reference to t r e a t i e s i n which these o r i g i n a l l y appeared; and 5. The appearance of a general conviction that these p r i n c i p l e s and rules constitute the accepted legal basis i n that f i e l d . 14 It i s suggested that clause one simply states that one cannot have a regional norm. The practice must be extended to a l l those states capable of p a r t i c i p a t i n g . Section two remains problematic. Is i t s t i l l a v a l i d c r i t e r i o n a f t e r the Continental Shelf Case? Although the burden of proving a customary norm i s probably heavier i f reliance i s placed on t r e a t i e s for state practice, i t i s suggested that section two as a q u a l i f y i n g c r i t e r i o n i s now redundant. The court was merely saying.that time of i t s e l f i s not a b a r r i e r . The point i s one of emphasis. The passage of considerable time may s t i l l be necessary. The North Sea Continental Shelf Case may, however, spread some l i g h t on the problem. The relevant issue i n that case was whether A r t i c l e 6 of the Geneva Convention on the Continental Shelf had become, independently of the Convention, a binding rule of customary international law, applicable to the - 41 -Federal Republic of Germany. The Court ruled that the practice of those states which had r a t i f i e d the Treaty was i r r e l e v a n t . Reference could only be had to non-ratifying states to develop t h i s argument. The court was not saying that no credence should be given to state practice as manifested by t r e a t i e s . On the contrary, i t i s suggested that impliedly they were saying the opposite. Delimitation of shelf boundaries i s always enshrined i n a Treaty. The court agreed that state practice could, with the re q u i s i t e opinio J u r i s , transform A r t i c l e 6 into a customary norm. Impliedly, therefore, they accepted that treaty practice could be evidence of usage and a s s i s t the formation of customary rules. It i s surprising that the court was not more s p e c i f i c . CONCLUSION A r t i c l e 38 of the I.C.J, i s no longer, i f i t ever was, a complete l i s t of the potential sources of international law. In p a r t i c u l a r , i t f a i l s to mention the work of intergovernmental organizations and i n f l u e n t i a l groups of j u r i s t s , both of which w i l l be important to t h i s analysis. Customary law i s d i f f i c u l t to e s t a b l i s h because of the need to prove opinio J u r i s . This problem i s increased i f one r e l i e s upon state treaty practice as evidence of a custom. It appears that such practice may form the basis of a customary r u l e , but that the burden of proof i s a heavy one. - 42 -FOOTNOTES 1. A. C. Kiss, Survey of Current Developments i n International  Environmental Law, at 17 (1976) . 2. Ibid., at 23. 3. But see also the U.N.E.P. working group on the p r i n c i p l e s concerning shared national resources. 4. J. P. Dobbert, Water P o l l u t i o n and International River Law, 35 Yearbook of the A.A.A. 60, 74 (1965). 5. Ibid.,at 65-6. 6. North Sea Continental Shelf Case, I.C.J. Reports, 1969, 3 at 41, 42. 7. Ibid., at 43. 8. Ibid., at 44. 9. I.C.J. Reports, 1950, 266, 276-7. 10. I.C.J. Reports, 1952, 176, 200. 11. See the authorities quoted by R. D. Hayton, The Formation  of the Customary Rules of International Drainage Basin Law, in Garretson, Hayton, Olmstead (eds.), The Law of International  Drainage Basins, 834-895 at 886, n.14 (1976). He quotes int e r a l i a B r i e r l y , "[A] customary rule i s observed, not because i t has been consented to, but because i t i s believed to be binding. However, a customary rule may not be applicable against a state which has consistently objected to i t . " 11a. This i s not to deny that custom i s evolved by the states p r a c t i s i n g an a c t i v i t y . However, consideration must be given to a l l states most affected by a poten t i a l norm. 12. Ibid., at 868-9. 13. C. B. Bourne, Procedure i n the Development of International  Drainage Basins: The Duty to Consult and to Negotiate, 10 Canadian Year Book of International Law 212, 223 (1972). 14. Supra, n. 11 at 870. - 43 -THE PROCEDURAL OBLIGATIONS AND INTERNATIONAL RIVER BASINS The law governing the use of international r i v e r s for purposes other than navigation has been a twentieth century development. Water has become an increasingly precious commodity and the need to regulate flow, for optimizing a g r i c u l t u r a l production, or the use of the r i v e r as a means of disposal of undesirable substances may have a deleterious e f f e c t on other states through which the r i v e r flows. States sharing r i v e r s , therefore, have become aware of the need to develop international law on the subject i n order to govern a l l o c a t i o n of the resource and to prevent undue damage of one state by another user. Drainage basin states can now be said to have adopted the p r i n c i p l e of equitable u t i l i z a t i o n ; each basin state i s e n t i t l e d to a reasonable and equitable share i n the b e n e f i c i a l uses of the water and consequently has "rights equal i n and c o r r e l a t i v e with those of each co-basin state"."'" J u r i s t s have played an important role i n the development of t h i s area of the law, 2 p a r t i c u l a r l y i n recent years. The International Law Association set up a committee i n 19 54 on the Uses of the Waters of International Rivers, whose work culminated i n the Helsinki 3 4 Rules i n August 1966. The In s t i t u t e of International Law, the Inter-American Bar Association,^ and the United Nations^ have also been active i n t h i s f i e l d . The International Law Commission has now taken on the l e g a l problems r e l a t i n g to the u t i l i z a t i o n and non-navigational uses of international watercourses. Not very much progress has been made, but the ILC has published a survey ca r r i e d out by the United - 44 -Nations Secretariat. This contains information provided by member states on domestic laws, a summary of ex i s t i n g b i l a t e r a l and m u l t i l a t e r a l t r e a t i e s , a summary of decisions of international tribunals and a survey of studies made by non-governmental organizations concerned with international 6a law. The deliberations of such bodies provide evidence of customary law on the subject. Other sources of the law of drainage basins are of course t r e a t i e s (which may also 7 provide evidence of customary law ) and state practice and the opinions of a r b i t r a l and j u d i c i a l bodies. General p r i n c i p l e s of law may have an unusually important significance i n t h i s context because of the analogies that may be drawn with inte r s t a t e r i v e r s i n a federation. Most of the procedural obligations to cooperate i n t h i s f i e l d derive from a change in the t r a d i t i o n a l use pattern, for example i f i t i s proposed that a dam be b u i l t which w i l l a l t e r the flow of water to downstream states, or form a lake "backing up" into a higher basin state. Such an occasion provides a clearer imperative for cooperation than does the continuous exchange of hydrological data which w i l l i n the long run a s s i s t optimization of the resource. g 1. The Duty to Give notice A requirement to give notice to co-basin states before beginning major developments i s desirable because i f s u f f i c i e n t l y detailed,, i t permits affected parties to make - 45 -th e i r own assessment of i t s e f f e c t s . Thus the Salzburg Resolution of the I n s t i t u t e of International Law provides that no works or u t i l i z a t i o n s of the waters of a r i v e r basin "which seriously a f f e c t the p o s s i b i l i t y of u t i l i z a t i o n . . . 9 by other states" beyond a state's equitable portion of such waters, should be undertaken "except after previous notice to interested s t a t e s " . 1 ^ The Salzburg Resolution then suggests that the obligation to give notice i s limited by various q u a l i f y i n g c r i t e r i a , namely: a. the proposed u t i l i z a t i o n must seriously a f f e c t the p o s s i b i l i t y of another state u t i l i z i n g the waters; and b. the proposed u t i l i z a t i o n must exceed a state's equitable r i g h t of u t i l i z a t i o n . Such resolutions f a i l to f u l f i l the raison d'etre of the obligation to give notice, for how i s a co-basin state able to assess whether i t s interests are seriously affected unless i t has s u f f i c i e n t information about the proposed project? Support for t h i s wider proposition i s limited; the Helsinki Rules merely recommend that n o t i f i c a t i o n should be provided of constructions which may s u b s t a n t i a l l y a f f e c t the i n t e r e s t s of other co-basin states. 1" 1" The Montevideo Declaration, on the other hand, provides that "the works which a state plans to perform i n international waters s h a l l be previously announced to the other r i p a r i a n .... state. The announcement s h a l l be accompanied by the necessary technical documentation i n order that the other interested states may judge the scope of such works, and by the name of the technical expert or experts who are to deal, i f necessary, 12 with the inte r n a t i o n a l side of the matter." Some support for the wider rule may be derived from the Lac Lanoux 13 A r b i t r a t i o n . Although t h i s award was primarily concerned with determining whether or not France was acting in compliance with the Treaty of Bayonne of May 26, 1866, there was some consideration of general p r i n c i p l e s of international law. In general terms, the tribunal stated that "A state wishing to do that which w i l l a f f e c t an international watercourse cannot decide whether another state's i n t e r e s t w i l l be affected; the other state i s the sole judge of that and has the r i g h t 14 to information on the proposals". This i s not confined to serious e f f e c t s of u t i l i z a t i o n , nor does i t simply require a general exchange of information related to the basin. The tribunal apparently recognizes the ri g h t of a co-basin state to n o t i f i c a t i o n of proposals to do anything which " w i l l a f f e c t an international watercourse". While r e j e c t i n g the view that "states may u t i l i z e the hydraulic power of international watercourses only on condition of a p r i o r agreement between the interested s t a t e s " , 1 5 the tri b u n a l recognized that "international practice r e f l e c t s the conviction that states ought to s t r i v e to conclude" agreements concerned with the c o n f l i c t i n g use of international r i v e r s . Consequently "there would thus appear to be an obligation to accept in good f a i t h a l l communications and contracts which could, by a broad comparison of i n t e r e s t s and by r e c i p r o c a l goodwill, provide states with the best conditions for concluding agreements.""'"^ It can be argued that, i f the tribunal i s prepared to accept an obligation to s t r i v e to reach agreement upon c o n f l i c t i n g uses, then by implication, i t surely accepts an obligation to supply information on 17 such uses. The Lac Lanoux . A r b i t r a t i o n would therefore seem to support the wider view of the Montevideo Declaration."'" I t i s common for agreements r e l a t i n g to the u t i l i z a t i o n of international r i v e r s to provide for the cooperation between basin states and a duty to n o t i f y affected parties of planned projects. However, such agreements d i f f e r i n 18 the circumstances i n which n o t i f i c a t i o n i s required. I t i s not possible therefore to suggest from these t r e a t i e s that there i s a p r i n c i p l e which may be received into the general international law. The most recent detailed consideration of the problem concludes that while the generality of the Montevideo Declaration may be preferable, the authority of the Salzburg Resolution 1961 and the Helsinki Rules 1966 i s compelling. "There would seem to be a l i t t l e chance i n the near future of persuading a tribunal that international law imposes a higher obligation on a basin state concerning notice than 20 that provided for m them". However, Professor Bourne does not consider the Lac Lanoux A r b i t r a t i o n , i n t h i s context, -. 48 -as a factor weighing against the two previously c i t e d a u t h o r i t i e s . That writer only c i t e s the case under the heading of "Duty to Exchange Information". Professor Bourne concedes that the tribunal "intimate(s) that there i s a general p r i n c i p l e of customary international law requiring states to take the i n t e r e s t of co-basin states into consideration and that t h i s necessarily leads to the 21 obligation to give notice, to consult and to negotiate". It i s clear, then, that there i s an obligation to give notice in some circumstances, namely where the interests of co-basin states are "substantially" affected. It may be true to say that there i s a duty to give co-basin states n o t i f i c a t i o n of a l l anticipated projects. If notice i s required, i t must be e f f e c t i v e notice. The general p r i n c i p l e s governing t h i s are that notice should provide s u f f i c i e n t information to enable the co-basin state to make an assessment of i t s i n t e r e s t s . A reasonable amount of time should be permitted the co-basin state for t h i s assessment. S p e c i f i c t r e a t i e s may specify time l i m i t s 22 and some of the information to be given. Since international law has rejected the thesis that consent from or pr i o r adjudication with affected states i s required 23 before work on a project may continue, i t may be asserted that a f t e r the elapse of a reasonable amount of time a state may go ahead, even i f no reply has been received. F a i l u r e to reply may amount to t a c i t consent. - 49 -The e f f e c t of a f a i l u r e to give notice where i t i s required i s uncertain. The Helsinki Rules provide i n A r t i c l e XXIX(4) the penal clause that the state carrying out the change "cannot a v a i l i t s e l f of any r i g h t which may flow from 24 temporal p r i o r i t y of use". However t h i s view receives no other substantial support, and i t s severity renders i t s acceptance u n l i k e l y . The f l e x i b l e view implied by A r t i c l e V of the same Rules i s to be preferred. F a i l u r e to n o t i f y would simply be one factor i n determining "what i s a reasonable and equitable share" of the waters of the r i v e r . 2. The Duty to Exchange Information Whereas the duty to give notice of a s p e c i f i c project i s unclear, i n some respects the duty to exchange general information seems to be clearer and more un i v e r s a l l y recognized. The rules have a d i f f e r e n t focus. The duty to give notice of s p e c i f i c projects i s primarily designed to protect downstream basin states from acts p r e j u d i c i a l to t h e i r i n t e r e s t s . On the other hand, the main emphasis of a general obligation to exchange information i s to 25 promote sound planning and development of the e n t i r e basin. As has already been noted, the t r i b u n a l i n the Lac Lanoux Case recognized a general obligation i n international law on 2 6 states sharing a r i v e r to exchange information. The p r i n c i p l e has also been recognized to govern relationships 27 between states i n a federation. State practice as - 50 -re f l e c t e d i n international agreements, consistently provide for extensive information exchange, usually i n obligatory terms. Professor Bourne i n a survey of 27 b i l a t e r a l t r e a t i e s , found that a l l made some provision for the exchange of information, although some i n the form of b i l a t e r a l commissions responsible for the management of the basin. For example, the Yarmuk Convention between Jordan and Syria, provides i n A r t i c l e 7 that the two states s h a l l exchange information concerning the storage capacity of the Maqarin 2 8 Reservoir. On a m u l t i l a t e r a l basis, the states parties to the Danube Convention give the mixed commission power to organize the exchange of information among the contracting 29 parties "concerning the implementation of t h i s Convention". The p r i n c i p l e of free exchange of information also seems to be recognized by j u r i s t s who have considered the problem 30 i n d i v i d u a l l y , and by the i n f l u e n t i a l groupings of j u r i s t s . The Salzburg Resolution envisages that freedom of information may enable p a r t i c i p a t i n g states to at t a i n "the advantages 31 of a more r a t i o n a l exploitation of a natural resource". The Helsinki Rules have a more limited raison d'etre. A r t i c l e XXIX(1) c a l l s for the exchange of "relevant and reasonably available information" simply to prevent disputes from 32 a r i s i n g . Although the aim i s limit e d , the provision i s widely phrased, and recommends "that each basin state furnish relevant and reasonably available information to the other basin states concerning the waters of a drainage - 51 -basin and i t s use of, and a c t i v i t i e s with respect to such 33 waters". Although t h i s provision i s merely recommendatory, i t i s r e l a t i v e l y easy to envisage situations i n which the practice of information exchange between co-basin states may lead to an obligation developing i n which each state i s e n t i t l e d to expect the continuance of such cooperation. Apart from the Preamble, the Salzburg Resolution makes no di r e c t reference to the exchange of information, but i t i s 34 clear that negotiations w i l l require the exchange of information. Thus the Salzburg Resolution i n common with 35 the Geneva Convention appears to assume that the exchange of information i s desirable without a c t u a l l y recommending or requiring i t . I t i s suggested that t h i s may lead to confusion since a duty to exchange can only be c o r r e c t l y implied when such an exchange i s a necessary adjunct to something sp e c i f i e d by the Resolution such as negotiation. An exchange of information may well be desirable i n situations in which negotiation i s not required. S i m i l a r l y , to t i e information to a requirement to give notice unnecessarily l i m i t s the obligation to cooperate. As has been noted, the requirement to give notice may be limited to notice of projects having a "substantial" e f f e c t on other basin states. An obligation to give routine information has a rationale much wider than the significance of a single 3 6 project, namely the optimum u t i l i z a t i o n of the r i v e r basin. Furthermore, such an obligation can hardly be considered a serious infringement of sovereignty. A similar c r i t i c i s m may also be made of the Montevideo Declaration. Although t h i s goes beyond the recommendatory provisions of the Helsinki Rules and Salzburg Resolutions and provides that states s h a l l exchange cert a i n information, the occasion for such an exchange i s limited to the case of a planned 37 construction. In view of the haze surrounding the duty to n o t i f y , i t i s desirable to c l e a r l y d i s t i n g u i s h between t h i s duty and the obligation to exchange information. Nevertheless, i t seems possible to conclude that international law does recognize a duty to exchange information between co-basin states. Content of the Duty The content of such a duty must therefore be considered. To some extent the question has already been answered. Paragraph 7 of the Montevideo Declaration gives some 38 guidance, as does A r t i c l e XXIX(1) of the Helsinki Rules. However, an e a r l i e r Recommendation of the International Law Association i s much more s p e c i f i c , and i s quoted with approval i n the commentary to the current a r t i c l e of the 39 Rules. The Agreed Recommendation provided: Co-ripanian states should make available to the appropriate agencies of the United Nations and to one another hydrological, meteorological and economic information, p a r t i c u l a r l y as to stream-flow, quantity and q u a l i t y of water, ra i n and snow f a l l , water tables and underground water movements. 4 0 The l i m i t i n g words i n the Helsinki Rules are "relevant" and "reasonably available". The word "relevant" taken with the professed aim of the Rule (to prevent disputes) may r e s u l t i n a narrow interpretation. If "relevant" ref e r s to "waters of a drainage basin" instead, then c l e a r l y the a r t i c l e has a wider s i g n i f i c a n c e , and t h i s should be the preferred interpretation. The phrase "reasonably available" suggests that a state cannot be put to a great deal of expense or trouble. The character of the information to be exchanged w i l l determine the timing. Whereas in the case of n o t i f i c a t i o n , information should be given i n s u f f i c i e n t time to permit 41 assessment of the p r o j e c t T the routine nature of the data suggested by the New York I.E.A. Recommendation quoted above requires regular and reasonably prompt communication to be of any value. The unwillingness of one state to exchange information leads to the question of what steps the enquiring state may be permitted to take to obtain t h i s information i t s e l f . Three issues may be delineated. a. May the enquiring state pay for the c o l l e c t i o n of data which would otherwise not be "reasonably available"? The commentary to the Helsinki Rules s p e c i f i c a l l y states that A r t i c l e XXIX(1) i s not intended to prejudice t h i s issue, but f a i l s to elucidate further. Only the Montevideo Declaration d i r e c t l y considers the problem, and then only i n the context of the e x p l o i t a t i o n of the hydraulic power of a r i v e r . Paragraph 1 of 43 that Declaration requires that "the states on whose t e r r i t o r i e s the studies are to be c a r r i e d on, i f not w i l l i n g to make them d i r e c t l y , s h a l l f a c i l i t a t e by a l l means the making of such studies on t h e i r t e r r i t o r i e s by the other interested state and for i t s account". This declaration was never approved by the United States, and i n any case, i s limited to a d i s t i n c t geographical area where there has t r a d i t i o n a l l y been cooperation through the Pan American Union. The paragraph i s very widely phrased, apparently even permitting access to the t e r r i t o r y of the state. As such, i t represents an infringement of t e r r i t o r i a l sovereignty, and i s u n l i k e l y to receive general approval, although within well integrated regions, such as the European community, i t may prove p e r f e c t l y acceptable. The question may also be approached i n d i r e c t l y through the appointment of a j o i n t commission with investigatory powers. There i s no obligation to take such a step, and i t avoids the question rather than answering i t . Is there an obligation upon one basin state to permit representatives of an enquiring state into i t s t e r r i t o r y to consult documents and records not otherwise available? - 55 -Again there i s l i t t l e discussion of t h i s problem i n the standard works, but Professor Bourne notes that there i s federal authority for the proposition. The State of Colorado was required to make records available for impsection by Wyoming on i r r i g a t i o n and 44 storage questions. On such questions though, which by t h e i r very nature go to the root of the theory of sovereignty, the authority of such pronouncements must be limited i n the international forum. c. Is a basin state under an obligation to permit a co-basin state to enter i t s t e r r i t o r y to c o l l e c t data and make studies on the drainage basin? This issue has been p a r t i a l l y discussed i n (a) supra, since the Montevideo Declaration may be interpreted as recognizing such an obligation. Furthermore, the d e s i r a b i l i t y of such access has been c l e a r l y recognized 45 i n state agreements, providing either access to the o f f i c i a l s of a state or access by a b i l a t e r a l commission. However, i t would appear that although desirable, there i s no obligation to permit access and that the consent of the co-basin state i s required before access i s made. In t h i s b r i e f consideration i t would appear that international law does not impose such obligations on co-basin states. In each of the three cases, the major authority, either e x p l i c i t l y or i m p l i c i t l y , i s the"'Montevideo Declaration, - 56 -the authority of which i s suspect. 3. The Duty to Consult and Negotiate The j u s t i f i c a t i o n of the duty to give notice and part of the j u s t i f i c a t i o n of the obligation to exchange information i s to permit the affected state to evaluate the consequences of a projected development. Integrated plans to develop a r i v e r basin may also follow from a routine exchange of information. A desire for negotiation may follow from such an exchange, either because an affected state disputes the consequences of a development or considers i t s l e g a l r i g h t s or other interests detrimentally affected, or because co-basin states consider that further cooperation i s required in order to develop a f u l l y integrated plan for the whole basin. The duties to give notice and exchange information may be seen as the e s s e n t i a l s t a r t i n g point for discussions and negotiations which may lead to the drawing up of an agreement. It i s therefore pertinent to consider whether there i s a duty to consult and negotiate. The obligation to consult and negotiate has two basic sources: the f i r s t of general application and the second s p e c i f i c . F i r s t l y , there are the general provisions of the United Nations Charter that require the settlement of disputes by a l l peaceful means. Secondly, there i s the practice of states which requires the settlement of r i v e r basin disputes by negotiation. Although they w i l l be treated separately here, i t should be recognized that the - "57 -f i r s t informs the conclusions of the second. The general analysis w i l l be found applicable to the other natural resource regimes discussed i n t h i s t h e s i s . ^ a. General Obligations to Negotiate 47 A r t i c l e 33 of the U.N. Charter obliges states which are parties to take any dispute "the continuance of which i s l i k e l y to endanger the maintenance of international peace and security" to seek a solution by peaceful means, including negotiation. A p l a i n reading of the words suggests that many drainage basin disputes w i l l not be encompassed by the a r t i c l e , since most w i l l not endanger the maintenance of international peace and security. Even i f one accepts that the obligation to negotiate on the question of a new project can only arise i f the interests of another basin state may be substantially affected (since t h i s i s the recognized l i m i t of the obligation to notify) i t does not follow that a l l such disputes f a l l into the A r t i c l e 33 category. The construction of the project i t s e l f i s u n l i k e l y to contribute a threat to peace, since i t would be d i f f i c u l t to construe the building of a dam, for example, as a use of force. To do so, as Dr. Bourne says " i s to introduce the notion of 'constructive force' into t h i s branch of 48 international law". However, i t i s possible to think of examples in which the construction of a dam might have such a detrimental e f f e c t on an upstream (by flooding) or downstream state (depriving of water supplies), that - -- 58 -i t might, indeed, be construed as an act of force against the t e r r i t o r i a l i n t e g r i t y or p o l i t i c a l independence of another basin state. T e r r i t o r i a l i n t e g r i t y might be v i o l a t e d by the backing up of water into another country. A threat to the p o l i t i c a l independence of a state should not e a s i l y be found i n t h i s s i t u a t i o n . The proposed construction would have to be a gross v i o l a t i o n of p r i n c i p l e s of equitable u t i l i z a t i o n , perhaps seriously a f f e c t i n g e x i s t i n g legitimate uses, combined with an intention to cause damage before a threat to the p o l i t i c a l independence of a state by dam construction could be made out. The application of A r t i c l e 33 of the Charter i s therefore uncertain, but i t i s l i k e l y to be of minimal importance. In the absence of a s p e c i f i c agreement to negotiate disputes, one must f a l l back on customary law. b. State Practice and the Duty to Consult and Negotiate The need for negotiations may flow from either a s p e c i f i c project or dispute or from a desire to cooperatively develop a shared r i v e r basin with a view to maximizing p o t e n t i a l . The l a t t e r may be seen as the l o g i c a l consequence of a practice of exchanging information. The former has a close r e l a t i o n s h i p with the n o t i f i c a t i o n given to an affected state of a new project. The Helsinki Rules seem to recognize the two needs, but to subsume both under A r t i c l e XXX, "In case of a dispute between states as to t h e i r l e g a l or other - 59 -49 i n t e r e s t s . . . they should seek a solution by negotiation". The commentary points out the problems with the a r b i t r a t i o n of r i v e r disputes and quotes with approval the Rau Commission which extends the discussion far beyond the needs of a p a r t i c u l a r project. "The most s a t i s f a c t o r y settlement of disputes of t h i s kind i s by agreement, the parties adopting the same technical solution of each problem as i f they were a single u n i f i e d community undivided by p o l i t i c a l or 50 administrative f r o n t i e r s . " Mandatory negotiation i s only required by the Helsinki Rules with respect to p o l l u t i o n -The general recommendatory nature of the rules i s supported by M. Sevette, Berber,H. A. Smith and the E l e c t r i c Power 51 Committee of the E.C.E. The special conclusion of the Helsinki Rules i s supported by several European drafts of water quality protection conventions. Thus A r t i c l e 3 of the Draft European Convention on the Protection of Fresh Water Against P o l l u t i o n , adopted by the Consultative Assembly of the Council of Europe, provides that: In the event of any dispute between any contracting states about t h e i r r i g h t s , i n t e r e s t s , or obligations under, or the interpretation of any of the provisions of t h i s convention, they s h a l l seek a solution by negotiation. 52 . . . . . 5 A s i m i l a r but more detailed provision occurs i n the important Council of Europe Draft Convention for the Protection of International Watercourses against P o l l u t i o n : The Contracting Parties whose t e r r i t o r i e s the same international watercourse separates or passes through... undertake to enter into negotiation with each other, i f one of them so requests, with a view to concluding a cooperation agreement... 54 - 60 - . A r t i c l e s 14 to 21 suggest an outline for. the cooperation agreement. The Draft i s therefore much broader than the Helsinki Rules, since i t does not even require the existence of a dispute. This recognizes that an e f f i c i e n t way of avoiding disputes i s to take pre-emptive action and negotiate a detailed agreement concerning r e l a t i o n s over the common resource. More broadly based support for the p r i n c i p l e of mandatory negotiations i s not lacking. Reference may be had to A r t i c l e s 3 and 4 of the 1923 Geneva Convention on the development of 55 hydraulic power, and to a number of other agreements. Perhaps the most important i s A r t i c l e 6 of the Salzburg Resolution of the Institute of International Law which provides that i n case objection i s made when notice of a new development i s given "states w i l l enter into negotiations with a view to reaching agreement within a reasonable time". Dr. Bourne supports t h i s general proposition with the consistent proviso that negotiation i s limited to "co-basin states that object to a proposed work or u t i l i z a t i o n of waters on the grounds that i t might cause them serious 56 injury". He supports his argument by reference to state tready practice and the observations of the t r i b u n a l i n the Lac Lanoux Case on that p r a c t i c e : In fact, States are today p e r f e c t l y conscious of the importance of the c o n f l i c t i n g i nterests brought into play by the i n d u s t r i a l use of international r i v e r s , and of the necessity to reconcile them by mutual concessions. The only way to arrive at such comporomises of interests - 61 -i s to conclude agreements on an increasingly-comprehensive basis. International practice r e f l e c t s the conviction that states ought to s t r i v e to conclude such agreements. 57 Reference may also be had to judgments of the International 5 8 Court i n the North Sea Continental Shelf Case, and Fisheries J u r i s d i c t i o n Case between the United Kingdom and 59 Iceland. Both deal with d i f f e r e n t natural resources, but i t i s suggested that the basic p r i n c i p l e s of delimitation and apportionment are applicable. In view of the thorough survey of state treaty practice 6 0 accomplished by Bourne and Kulz i t seems f r u i t l e s s to make an exhaustive l i s t of t r e a t i e s . One point though i s worth noting. Many of the t r e a t i e s c i t e d by Professor Bourne provide for negotiation i n far wider circumstances than his f i n a l proposition c i t e d above. I t would appear that the "serious injury" or "substantial damage" proviso i s the lowest common denominator. Typical i s the provision i n the Agreement between Argentina and Uruguay of 1946 that i n any dispute which the Joint Technical Commission cannot solve, s h a l l be solved by the High Contracting Parties by "diplomatic means". This observation, however, does not detract from the f i n a l conclusion that the international community does impose an obligation to consult and negotiate i n the "substantial damage" s i t u a t i o n . - 62 -: 6 2 c. The Limits of the Duty to Negotiate In the North Sea Continental Shelf Case, the Court took the position that since the 1958 Convention was not applicable between Denmark and the Netherlands, and the Federal Republic of Germany, i t s task was "to indicate to the Parties the p r i n c i p l e s and rules of law in the l i g h t of which the methods for eventually e f f e c t i n g the delimitation w i l l have 6 ^  to be chosen". The Court chose to frame i t s judgment i n very general terms which, i t i s submitted, are as applicable to r i v e r basin disputes and to the p r i n c i p l e s underlying the apportionment of shared natural resources, as to the delimitation of continental shelves. On a foundation of very general.precepts of j u s t i c e and good f a i t h , actual rules of law are here involved which govern delimitation of adjacent continental shelves - that i s to say, rules binding upon States for a l l delimitations; a) the parties are under an obligation to enter into negotiations with a view to a r r i v i n g at an agreement, and not merely to go through a formal process of negotiation as a sort of p r i o r condition for the automatic application of a certain method of delimitation i n the absence of an agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which w i l l not be the case when either of them i n s i s t s upon i t s own position without contemplating any modification of i t ; b) the parties are under an obligation to act i n such a way that, i n the p a r t i c u l a r case, and taking a l l the circumstances into account equitable p r i n c i p l e s are applied... 64 The f i r s t paragraph quoted emphasises that the delimitation i s governed by good f a i t h . Paragraph (a) expands upon t h i s . - 63 -The duty may be emphasized by reference to the Permanent Court of International Justice's judgment i n the case of Railway T r a f f i c between Lithuania and Poland. The Court said that the obligation was "not only to enter into negotiations but also to pursue them as far as possible 65 with a view to concluding agreements." Thus, communications between the states should be given and received i n good f a i t h . They should be given careful consideration i n an open-minded manner. "There i s no l e g a l l i m i t to the considerations 66 which states may take into account" and "(t)he problem of the r e l a t i v e weight to be accorded to d i f f e r e n t considerations naturally varies with the circumstances of 6 7 the case". The negotiations w i l l not be "meaningful" i f one party u n j u s t i f i a b l y breaks o f f the negotiations. Information exchanged i n the course of negotiations should 6 8 not be used merely to delay the project. The duty to act in good f a i t h i s s p e c i f i c a l l y recognized by the UNEP P r i n c i p l e s 69 on Shared Resources, and by A r t i c l e 7 of the Salzburg Resolution: During the negotiations, every state must, in conformity with the p r i n c i p l e of good f a i t h , r e f r a i n from undertaking the works or u t i l i z a t i o n s which are the object of the dispute or from taking any other measures which might aggravate the dispute or render agreement more d i f f i c u l t . 70 The exact extent of t h i s obligation i s obscure. It i s cl e a r that negotiations need only go on for a reasonable length of time i n the absence of agreement, and that to continue working on the project under negotiation i s prima facie evidence of bad f a i t h . There i s l i t t l e point - 64 -in discussing a project i f i t w i l l be b u i l t according to the same timetable and same s p e c i f i c a t i o n s whatever objections are raised. The generally accepted view i s that the parties are not required to continue negotiating u n t i l they reach agreement. The strongest authority for t h i s proposition i s the PCIJ i n the Railway T r a f f i c Case: "an obligation to negotiate does not imply an obligation to reach agreement". This seems to be the case even i f a party enters into an agreement to reach an agreement. However, as Dr. Bourne points out, t h i s i s not uni v e r s a l l y accepted. Judge Lauterpacht has argued that the obligation of good f a i t h requires states to accept reasonable terms proposed by another state, i n 72 the context of an agreement to agree. Dr. Bourne concedes the attractiveness of thi s view, but finds i t too constraining. He considers that a state which refuses to accept reasonable terms proposed by an affected state may be l i a b l e for damages. Damages would be calculated on the basis of the increase i n damage to the affected state by the non-adoption of the reasonable proposal. Two objections may be made to the Lauterpacht view. F i r s t l y , i t represents an unwarranted f e t t e r on state sovereignty and freedom of action when there i s an alte r n a t i v e i n damages and, secondly he appears to be elevating the duty to act i n good f a i t h to a p r i n c i p l e of substantive law. Consequently, the t r a d i t i o n a l veiw appears to be preferable. Thus states are only bound to negotiate i n good f a i t h for a reasonable period of time without being under any compulsion to reach agreement. Conclusion By comparison with the other resource regimes which w i l l be considered, that of international r i v e r basins i s well developed. It i s possible to recognize an obli g a t i o n to n o t i f y co-basin states of projects which w i l l s u b s t a n t i a l l y a f f e c t them, and an obligation to exchange information with co-basin states. Doubt exists as to the exact scope of these duties, but the e s s e n t i a l obligation i s there. The "golden thread" of "substantial damage" or " e f f e c t s " also informs the obligation to consult and negotiate which appear to be accepted as a universal norm despite the poor authority presented by A r t i c l e 33 of the United Nations Charter. Recent state practice i n t h i s resource f i e l d has concentrated on the reduction of p o l l u t i o n . This supports the conclusions already reached, and w i l l be dealt with further i n a l a t e r chapter. I t may be suggested here however, that the application of the p r i n c i p l e s of r i v e r basin development to water p o l l u t i o n further f a c i l i t a t e s t h e i r incorporation i n general p o l l u t i o n law. Thus, the importance of international r i v e r regimes l i e s not i n the distinguishing c h a r a c t e r i s t i c s that water i s wet and flows, but rather i n the h i s t o r i c a l e x p l o i t a t i o n of a v i t a l shared international resource. - 66 -FOOTNOTES 1. Helsinki Rules on the Use of the Waters of International  Rivers and Commentary at 10 (1967). The Helsinki Rules were adopted by the International Law Association at the 52nd Conference held i n Helsinki on August 20, 1966. 2. For a survey of work between 1950 and 1967, see C. J. Olmstead, Introduction, i n Garretson, Hayton, Olmstead (eds.) The Law of International Drainage Basins, 1-13 (1967). 3. Op.cit., supra, n.21. 4. A five-year study by Professor Andrassy culminated i n the adoption of a resolution on the U t i l i z a t i o n of Non-Maritime International Waters (except for navigation) by the Ins t i t u t e at the Salzburg Session on September 14, 1961 (56 AJIL 737 1962). 5. At Buenos Aires i n 1957 the Inter-American Bar Association adopted a resolution s e t t i n g out P r i n c i p l e s of Law governing Use of International Rivers (1957), 10 Inter-American Bar Association Proceedings, 82. 6. The U.N. has done important work c o l l e c t i n g i n ternational agreements of the use of r i v e r s and i n convening groups of experts to look at the publication of t r e a t i e s on such objects as the i n s t i t u t i o n a l management aspects of international water resources. 6a. U.N. International Law Commission Yearbook 1974 I I , Part 2. 7. R. D. Hayton, The Formation of the Customary Rules of International Drainage Basin Law, i n Garretson, Hayton, Olmstead (eds.) op.ci t . , supra, n.22, 834-895 at 868-871. The essay i s a thorough examination of the sources of international drainage basin law. 8. The following section owes a great deal to C. B. Bourne, Procedure i n the Development of International Drainage  Basins, 22 University of Toronto L.J. 172 (1972). 9« Supra, n.4, A r t i c l e 4. 10. Ibid., A r t i c l e 5. 11. Supra, n . l , A r t i c l e XXIX. The same view i s adopted by the Convention r e l a t i n g to the developments of hydraulic power a f f e c t i n g more than one state, Geneva, December 1923, 36 LNTS 77, A r t i c l e 4. 12. Declaration of the Seventh Pan-American Conference on the Industrial and A g r i c u l t u r a l Use of International Rivers adopted at Montevideo, 24 December 133 i n (1934) 28 Am.J. I n t ' l Law, Supp., at 59-60, A r t i c l e 7. - 67 -13. Lake Lanoux A r b i t r a t i o n (France versus Spain), award of 16 November 1957, 24 I.L.R. 101 (1959). 14. Ibid, at 119, Emphasis mine. 15. Ibid, at 130. 16. Ibid. 17. The authority of the Tribunal on general p r i n c i p l e s of international law has been questioned on the grounds that i t s pronouncements are obiter d i c t a since the t r i b u n a l was merely asked to determine whether the French government would be committing a breach of the relevant provisions of the Treaty of Bayonne, C.B. Bourne, supra, n. 8 at 198. However, the judgment i s well argued and was given only after a c a r e f u l consideration of j u r i s t i c evidence. It therefore deserves at least as much respect as the opinions of j u r i s t s . 17a. Recommendation 51 of the. Stockholm Conference on the Human Environment (A/Conf.48/14/Rev,11 supports the narrower view "Nations agree that when major water resource a c t i v i t i e s are contemplated that may have a s i g n i f i c a n t environmental e f f e c t on another country, the other country should be n o t i f i e d well i n advance of the a c t i v i t y envisaged." 18. To quote but a few examples, A r t i c l e 11 of the Treaty of Bayonne (quoted supra, n.13 at 103) provides for pr i o r notice to be given where the proposed project might change the course or volume of a watercourse. Both the Niger Basin Treaty, 26 October 1963 (587 UNTS 11), A r t i c l e 4 and the Chad Basin statute, 22 May 1964 (Ruster Simma International Protection of the Environment (.197 5). Volume XI at 563 3). A r t i c l e V, provide for cooperation (and for Chad, consultation), on any measure l i k e l y to have an "appreciable e f f e c t " on the r i v e r regime. 19. Hayton, supra, n.7 at 870 suggests that to e s t a b l i s h such a rule a minimum requirement i s i n t e r a l i a that there be a "widespread s i m i l a r i t y of p r i n c i p l e s and rules i n a sizeable number of geographically diverse agreements applied to the same or very s i m i l a r problems". 20. C. B. Bourne, supra, n.8 at 17 6. 21. Ibid, at 19.7, emphasis added. 22. The Declaration of Montevideo (supra, n.12) paragraph 8 provides that 3 months grace be given to co-basin states. Paragraph 7 s p e c i f i e s some of the information which must be n o t i f i e d . The N i l e Waters Treaty (Agreement between the United Arab Republic and the Republic of Sudan for the f u l l u t i l i z a t i o n of the N i l e Waters, Cairo, November 8, 1959, reproduced i n U.N. L e g i s l a t i v e Texts and Treaty provisions - 68 -concerning the u t i l i z a t i o n of international r i v e r s for other purposes than na v i g a t i o n ) . A r t i c l e 111(2) provides for 2 years notice before a project may be started. 23. Lac Lanoux A r b i t r a t i o n , supra, n.l3"at 130, and C.B. Bourne, The Right to U t i l i z e the Waters of International  Rivers, 3 Can.Y.B. of I n t ' l Law 187, 190 (1965). 24. Commentary on the Helsinki Rules, supra, n . l at 45. 25. See N.A. Swainson, C o n f l i c t over the Columbia (1979). It i s evident from t h i s study of the Columbia River that cooperative development of the r i v e r basin i s only fea s i b l e i f the parties exchange information and consult about the possible alternatives. 26. Supra, text to notes 13-17. 27. of the U.S. Supreme Court i n Wyoming v Colorado (2 86 U.S. 494 (1932) at 586). 28. Agreement between the Republic of Syria and the Hashemite Kingdom of Jordan concerning the u t i l i z a t i o n of the Yarmuk Waters, Damascus, 4 June 1953 U.N. L e g i s l a t i v e Texts and Treaties, supra, n.22 at 378, and authorities c i t e d by Bourne, supra, n.8 at 194-196. 29. Convention between the Governments of the Roumanian People's Republic, the People, Republic of Bulgaria, the Federal People, Republic of Yugoslavia and the U.S.S.R. concerning f i s h i n g i n the waters of the Danube, Bucharest, 29 January 1958/Article 12(3), U.N. L e g i s l a t i v e Texts, supra, n.22 at 427. 30. For example, C.B. Bourne, supra, n.8 at 196 quotes H.A.Smith as saying that " i t i s the duty of a l l r i p a r i a n states to consult f u l l y and f r e e l y with one another with regard to a l l questions that may ari s e concerning the use of international r i v e r s " . 31. Supra, n.14 Preamble. 32. Supra, n . l , A r t i c l e XXIX(1). 33. Ibid. 34. A r t i c l e 6 requires that negotiations should take place i f an objection follows n o t i f i c a t i o n of a work which would seriously a f f e c t the p o s s i b i l i t y of u t i l i z a t i o n by the objecting state. 35. Convention r e l a t i n g to the development of hydraulic power af f e c t i n g more than one state, Geneva 9 December 1923, 36 LNTS 77. A r t i c l e 4 requires that i f a project might cause serious prejudice to another contracting state "the - 69 -states concerned s h a l l enter into negotiations with a view to conclusion of agreements which w i l l allow such operations to be executed". 36. Here I d i f f e r from Professor Bourne, supra, n.18 at 199. Professor Bourne accepts the purpose of the exchange of information to be as l a i d down i n A r t i c l e XXXIX(1) of the Helsinki Rules (see supra, n.32). This difference has l i t t l e s i gnificance u n t i l one considers the subjects on which information i s to be exchanged. The purpose of the o b l i g a t i o n w i l l c l - a r l y l i m i t the scope of such an exchange, ( i n f r a . text to n.46 i f f . ) 37. Supra, n.12 and text where A r t i c l e 7 i s quoted. 38. Ibid. 39. Helsinki Rules, supra, n . l l . 40. Forty Eighth Conference of the International Law Association, New York, 1958, Resolution on the Uses of Waters of International Rivers, Agreed Recommendation No. 2. 41. Helsinki Rules, supra, n . l , A r t i c l e XXIX(3). 42. Ibid., A r t i c l e XXIX(1) and commentary. 43. Supra, n.12. See also d r a f t A r t i c l e s by the Special Rapporteur of the I.L.C. on non-navigational uses of r i v e r s (Report of the ILC 1979, at 467-468). These A r t i c l e s , which have yet to be f i n a l i z e d , oblige contracting states to c o l l e c t c e r t a i n data. States s h a l l also "use t h e i r best e f f o r t s " to provide information not normally available at the expense of the requesting state. 44. C. B. Bourne, supra, n.8 at 198 referring, to Nebraska v  Wyoming, 325, U.S. 589 (1945). 45. See C.B.Bourne, supra, n.18 at 199 for a discussion of these agreements. 46. Once again I acknowledge my debt to C.B. Bourne, Procedure  in the Development of International Drainage Basins: The  Duty to Consult and Negotiate,10 Canadian Yearbook of International Law 212 (1972). 47. For a more thorough survey, see C.B.Bourne, Mediation, C o n c i l i a t i o n and Adjudication i n the Settlement of  International Drainage Basin Disputes, 9 Canadian Yearbook of International Law 114, 145-158. 48. Ibid., at 154. 49. Supra, n . l . 50. Supra, n . l at 44. - 70 -51. Bourne, supra, n.46 at 216. 52. XI Ruster, supra, n.38 at 5748. 53. The importance of t h i s draft i s considered i n the chapter on t r a n s f r o n t i e r p o l l u t i o n , i n f r a , text to notes 16-18. 54. XI Ruster, supra, n.l8 at 5785, A r t i c l e 12(1). 55. Supra, n.46 at 213-214. 56. Ibid, at 233. 57. Supra, n.13 at 123-130. 58. ICJ Reports (1969) 3, 46-47. 59. ICJ Reports (1974) 3, 53-54. 60. Kulz, Further Water Disputes Between India and Pakistan, 18 I.C.L.Q. 734 (1969). 61. U.N. L e g i s l a t i v e Texts, supra, n.22 at 160. 62. It i s intended that the discussion i n t h i s section be applicable to a l l the natural resource regimes discussed i n f r a . 63. Supra, n.58 at 46. 64. Ibid, at 46-47. 65. PCIJ Series A/B No.42 (1931) at 116. 66. Supra, n.58 at 50. 67. Ibid. 68. Reinforced by Paragraph 3, G.A. A/Res/2995 (xxvii) 19 January 197 3. 69. Appendix I, p r i n c i p l e 7. 70. Supra, n.4. 71. Supra, n.65 at 116, see also Bourne supra, n.46 at 225, and the ICJ i n South West A f r i c a Case, ICJ Reports (1950) at 139. 72. Bourne, supra, n.4 6 at 22 6, and Lauterpacht, Special Rapporteur for the International Law Commission, on the Law of Treaties i n (1953) II Yearbook of the ILC at 97. Lauterpacht quotes the t r a d i t i o n a l view as expounded in the South West A f r i c a case, i b i d . , and states: - 71 -"There i s , however, room for the view that, l i k e any other obligation, an agreement to conclude an agreement must be interpreted i n good f a i t h and i n a reasonable manner and that, accordingly, the State undertaking to conclude an agreement i s l e g a l l y bound to f u l f i l that undertaking in- so far as i t l i e s i n i t s power. There i s an obligation to accept an agreement offered by the other party i f i t s terms are such that an impartial t r i b u n a l would consider them as taking into account the legitimate interests of both p a r t i e s . " The "Lauterpacht view" i s not supported by any other authority. - 72 -PROCEDURAL OBLIGATIONS AND TRANSFRONTIER POLLUTION International law i s concerned with several areas of p o l l u t i o n control. F i r s t l y , and most obviously, i t has a role to play i n regulating t r a n s f r o n t i e r p o l l u t i o n ; p o l l u t i o n o r i g i n a t i n g i n one country and having e f f e c t s within other countries. Secondly, i t may be argued that the Universal Declaration of Human Rights now incorporates "the fundamental r i g h t to freedom, equality and adequate conditions of l i f e i n an environment of a qual i t y that permits a l i f e of dignity and well-being"."'" Thus, international law has accepted a role i n setting international standards for the environment. F i n a l l y , p o l l u t i o n control has an economic cost and therefore to avoid giving one state a market advantage, p o l l u t i o n regulation of any sort may only be p o l i t i c a l l y and economically fe a s i b l e on a regional or international scale. Although t h i s question i s of p a r t i c u l a r s i g n i f i c a n c e to organizations such as the EEC and the OECD, the economic cost of p o l l u t i o n control i s also germane to the needs of the developing nations as the Stockholm Conference on the environment was forced to recognize. The focus of t h i s chapter w i l l be on the procedural aspects of t r a n s f r o n t i e r p o l l u t i o n . In an attempt to keep the topic to a manageable s i z e , p o l l u t i o n of the sea, and p o l l u t i o n by the medium of the sea w i l l not be considered. Opinions d i f f e r as to suitable d e f i n i t i o n s of "p o l l u t i o n " and "transfrontier p o l l u t i o n " . The debate i s of greater importance for the substantive rather than the procedural law. I t would therefore seem permissible to adopt the following d e f i n i t i o n s for working purposes. "Pollution" may be defined as the introduction of substances or energy by man into the environment such that they have a detrimental impact on the human environment i n i t s widest sense. "Transfrontier p o l l u t i o n " i s any p o l l u t i o n which originates i n one or more states which has e f f e c t s within another area under a d i f f e r e n t national j u r i s d i c t i o n . 1. Introduction The international community i s a community comprised of sovereign states, but p o l l u t i o n i s a global problem and i s no respecter of national boundaries. P o l l u t i o n frequently crosses boundaries through the medium of shared common property resources: r i v e r s and lakes, groundwater, the sea or the a i r . A state cannot i s o l a t e i t s e l f from the e f f e c t s of p o l l u t i o n . Consequently, the sovereignty of a state i s fettered when i t can no longer control a l l a c t i v i t i e s which r e s u l t i n p o l l u t i o n within i t s boundaries. Although damages may be available i n some cases to compensate for the infringement of sovereignty and perhaps even for the material damage caused, the most e f f e c t i v e solution i s preventative cooperative action by the states involved at the source of p o l l u t i o n . Some p o l l u t i o n i s probably an inevitable by-product of the manufacturing process, but i n the absence of neighbour-state cooperation, t r a n s f r o n t i e r p o l l u t i o n i s a p a r t i c u l a r l y a t t r a c t i v e economic proposition. Most states have adopted national measures to prevent, p o l l u t i o n within t h e i r t e r r i t o r y , but i n the absence of agreement, they are incapable of l i m i t i n g foreign p o l l u t e r s who are generally not l i a b l e for t r a n s f e r r i n g the environmental cost of production to a neighbouring state. Transfrontier p o l l u t e r s are generally not regulated i n either the host state or i n the state where the e f f e c t s of p o l l u t i o n are being f e l t . There i s , thus, a need for the development of international cooperation between neighbouring states, a need also to develop the substantive law on the subject, and both public and private law procedural obligations. After a b r i e f survey of the substantive law as i t stands, the procedural issues w i l l be considered i n greater d e t a i l . 2. Substantive Law The substantive law has developed from general p r i n c i p l e s of state r e s p o n s i b i l i t y , p a r t i c u l a r l y the neighbour p r i n c i p l e s and the obligations of due diligence. The neighbour p r i n c i p l e i s vague and requires that a state should not permit i t s t e r r i t o r y to be used to the detriment of another. The highest authority for t h i s i s the International Court of Justice i n the Corfu Channel Case. Support can also be derived 3 from dbiter d i c t a i n the Lac Lanoux Case. . The T r a i l Smelter Case, d i r e c t l y on the issue of t r a n s f r o n t i e r a i r p o l l u t i o n , i s - 75 -4 often cxted as strong authority for the same p r i n c i p l e , 5 although t h i s has been questioned. Further authority for the neighbour p r i n c i p l e may be derived from the practice of states as re f l e c t e d i n P r i n c i p l e 21 of the Stockholm Convention,^ which lays down that "states have the r e s p o n s i b i l i t y to ensure that a c t i v i t i e s within t h e i r j u r i s d i c t i o n or control do not cause damage to the environment of other states...". There appears to be a consensus amongst j u r i s t s that P r i n c i p l e 21 has now been incorporated into customary 7 international law. After a thorough survey of state practice and j u r i s t i c opinion concerning the neighbour p r i n c i p l e , Handl came to the conclusion that i n order to obtain compensation for transnational p o l l u t i o n , a state would have to prove the fact of material damage. This i n i t s e l f i s s u f f i c i e n t . Moral damage does not s u f f i c e . "The mere fact of the 'vi o l a t i o n of sovereignty' i m p l i c i t i n the tr a n s f r o n t i e r crossing of pollutants i s thus i n s u f f i c i e n t to render a state l i a b l e for g the a c t i v i t y generating the pollutant". Some element of f a u l t i s required, although some commentators would apply a more objective t e s t . Some also suggest that damage should be substantial, although t h i s i s not presupposed by eithe r P r i n c i p l e 21 of Stockholm (supra) nor A r t i c l e 30 of the Charter of Economic Rights and Duties of States. - 76 -The p r i n c i p l e of the general obligation of due diligence has been emphasized by OECD and i s developed from state r e s p o n s i b i l i t y and the exclusive nature of t e r r i t o r i a l j u r i s d i c t i o n . " A l l states are under a duty i n t e r r i t o r y within t h e i r j u r i s d i c t i o n , to use t h e i r powers i n such a way as to ensure suitable protection of the right s of other 9 states and t h e i r nationals." The obligation, although vague and perhaps merely a reworking of the neighbour p r i n c i p l e , i s the basis of OECD1s emphasis on developing rules of private international law such as equal access to courts and rules of non-discrimination. As interpreted by OECD, the duty i s composed of a sheaf of rules (10) which give a high place to procedure: a. A state must constantly have available adequate le g a l and physical means for ensuring normal compliance with i t s international obligation... i t must equip i t s e l f notably where protection of  the environment i s concerned, with the laws and administrative regulations, i n both the c i v i l and criminal f i e l d s , necessary to achieve t h i s end. b. Compliance with the duty of due diligence implies, i n accordance with the p r i n c i p l e of good f a i t h , that the state should not rest content with possessing the appropriate l e g a l and administrative i n f r a s t r u c t u r e , but should make use of them with diligence  and v i g i l a n c e appropriate to the circumstances. c. (I)t i s . . . possible to regard as c l o s e l y related to the duty of diligence the duty  of internatonal co-operation imposed on states, p a r t i c u l a r l y as regards the protection of the environment. The detailed Recommendations of OECD, to be discussed l a t e r , are yet more s p e c i f i c formulations of the P r i n c i p l e . Although the substantive law begins with these two p r i n c i p l e s (and perhaps only the one r e a l l y ) , attempts have been made to ar r i v e at something more s o l i d . A p a r t i c u l a r l y clear example i s Chapter III of the Helsinki R u l e s , 1 1 ....dealing. . with international r i v e r basin law. 3. Procedural Obligations The generality of the substantive law of tr a n s f r o n t i e r p o l l u t i o n has led to attention being given to the procedural aspects. Important work has been accomplished i n t h i s f i e l d by OECD, the EEC, Council of Europe, the U.N. Economic Commission for Europe and, with reference to the s p e c i f i c area of r i v e r p o l l u t i o n , the International Law Association. Simply from t h i s l i s t i t can be seen that t r a n s f r o n t i e r p o l l u t i o n has assumed the greatest importance i n Europe, although i n North America there i s a history of U.S.-Canadian 12 cooperation through the I.J.C. The OECD does not have a membership limited to Europe, but i s composed of 2 3 nations of the i n d u s t r i a l i z e d f i r s t world. Thus fa r , a l l of i t s statements on p o l l u t i o n have been non-binding recommendations to member states. Although non-binding, states have tended to follow the recommendations because of the t h i r d party procedure which OECD has established. This c a l l s for early n o t i f i c a t i o n of environmental control measures which would s i g n i f i c a n t l y a f f e c t international a c t i v i t y , and allows either the OECD or a member nation to c a l l into play a "confrontation mechanism" i f i t believes 13 a measure wxll adversely a f f e c t i t . Like the OECD, the Council of Europe has taken the position that t r a n s f r o n t i e r p o l l u t i o n problems should as far as possible be handled at the domestic l e v e l . S i m i l a r l y , i t has no di r e c t enforcement authority. However, the Council i s a broadly-based, q u a s i - l e g i s l a t i v e p o l i t i c a l assembly used as a forum for discussion. I t has played an important role in d r afting conventions, some of which have been adopted by the EEC. These draft texts and other p r i n c i p l e s formulated by the Council do not commit governments to take s p e c i f i c measures, but at the very least they represent a consensus on p o l i c i e s . Neither the OECD nor the Council are supranational i n s t i t u t i o n s . One would therefore expect greater emphasis to be placed on cooperation within the EEC, i n which member states have 14 accepted l i m i t a t i o n s on t h e i r sovereignty. Although the EEC has no express mandate for environmental protection, the theme of close cooperation has been highlighted i n the EEC's two Action Programs on the Environment (197 3 and 1977). In the analysis that follows p a r t i c u l a r reference s h a l l be made to the practice of these and other i n s t i t u t i o n s i n t h i s , - 79 -the most i n d u s t r i a l i z e d area of the world. State practice in other geographical areas (apart from the practice for r i v e r basins) i s sparse, mainly because p o l l u t i o n has not, as yet, presented a hazard or for which an economically a t t r a c t i v e solution can be found. For the sake of analysis, several areas w i l l be outlined in which i t appears that cooperation between neighbouring states would be desirable either to reduce or prevent p o l l u t i o n . The extent to which international law recognizes an obligation to cooperate i n these areas w i l l then be considered, as w i l l the question of to whom the duty i s owed. T r a d i t i o n a l l y , international law has regulated the rel a t i o n s h i p between states, and not that between states and i n d i v i d u a l s , but increasingly the law i s also taking d i r e c t account of the l a t t e r . Thus there may be an obligation on a government not merely to inform the government of a neighbouring state of a hazardous l e v e l of p o l l u t i o n , but also to inform affected c i t i z e n s of that state. The need for in d i v i d u a l information i s largely determined by the subject-matter. For example, the question never r e a l l y arises for the u t i l i z a t i o n of the waters of an international drainage basin because i t takes the form of one large project. On the other hand, the primary e f f e c t s of a i r p o l l u t i o n w i l l be f e l t by those landowners i n the border zone; damage by the state may not be perceived for a long time. - 80 -The following are the p a r t i c u l a r questions to be considered: 1. Is there a duty to n o t i f y affected neighbouring states of the discharge of p a r t i c u l a r l y noxious or hazardous substances? 2. Is there a duty to n o t i f y affected neighbouring states of new projects which w i l l increase or s u b s t a n t i a l l y increase p o l l u t i o n i n the neighbouring state? 3. Is there a duty on neighbouring states to exchange information concerning e x i s t i n g p o l l u t i o n l e v e l s , and p o l l u t i o n standards i n f r o n t i e r regions? 4. Is there an obligation on neighbouring states to negotiate concerning the reduction and control of tr a n s f r o n t i e r p o l l u t i o n at the request of one state? Before beginning the analysis of these s p e c i f i c issues, i t ought to be pointed out that many b i l a t e r a l and m u l t i l a t e r a l t r e a t i e s contain no more than the most general injunctions upon states to cooperate i n the reduction and control of p o l l u t i o n . While such clauses do constitute recognition that the problem i s indeed an international one, they are of no help i n determining whether or not state practice recognizes 15 a s p e c i f i c o b l i g a t i o n . a. Is there a duty to inform affected neighbouring states of the discharge of p a r t i c u l a r l y noxious or hazardous substances? For example: State A accidentally releases radioactive material into the atmosphere which then d r i f t s over the border into State B, or the material may be released into a common waterbody. - 81 -In t h i s s i t u a t i o n i t i s c l e a r l y important for the health of the inhabitants of State B that B's government be appraised of the si t u a t i o n as soon as possible. The information that might help B to take suitable remedial action would be the date and location of the release, the amount and t o x i c i t y of the release and A's predictions as to i t s l i f e and e f f e c t s . Radioactive material i s but one l i k e l y noxious pollutant; equally important could be dangerous chemicals. Some states have made s p e c i f i c provision for t h i s , but the practice i s not widespread. The most important of these provisions w i l l probably prove to be the Council of Europe's Draft European Convention for the Protection of International 16 Watercourses against P o l l u t i o n . This document may be given far more importance than that usually attached to a draf t because of the EEC's posi t i v e attitude towards i t . The EEC Commission took the view that there were substantial s i m i l a r i t i e s between the dra f t Convention and i t s own water 17 p o l i c y . Consultations between the Commission and the Council resulted in certain amendments being adopted. The EEC i s now i n a position to r a t i f y the Convention, but the dra f t i t s e l f awaits f i n a l adoption by the Ministers of the Council 18 of Europe. A r t i c l e 11 of the dra f t provides that: As soon as a sudden increase i n p o l l u t i o n i s recorded, the Contracting Parties r i p a r i a n to the same watercourse s h a l l immediately warn each other, and s h a l l take u n i l a t e r a l l y or j o i n t l y a l l measures i n t h e i r power to avert injurious consequences or to l i m i t the extent thereof, having recourse to the early warning system envisaged i n A r t i c l e 15, paragraph 1(c) i f any. - 82 -A r t i c l e 15 provides for the establishment of international commissions, one of whose duties would be (para.1(6)) to propose to the interested Contracting Parties "that an early warning system be set up for serious accidental p o l l u t i o n " . Thus, A r t i c l e 11 provides the obligation to inform affected states of the discharge, and A r t i c l e 15 provides the machinery to i n s t i t u t i o n a l i z e the process. Although the Convention i s not yet binding as treaty law, i t does represent the consensus of a large number of European states. 19 Evidence of consensus i s also provided by OEEC Resolutions which recommend desirable action i n the case of radioactive discharges. In 1961 the OEEC Council decided to e s t a b l i s h a supervision and emergency warning system " i n cases of 20 increase i n environmental r a d i o a c t i v i t y " . The Council set up a system of national designated authorities which were to be informed i n the case of radioactive emissions of emergency, pre-emergency and " s c i e n t i f i c i n t e r e s t " l e v e l s . Each of these levels i s defined, and the obligation i n each case i s d i f f e r e n t . In the case of an emergency, hazards "must be n o t i f i e d by the most rapid means of transmission". A "pre-emergency" l e v e l emission " s h a l l be n o t i f i e d as soon as appropriate". F i n a l l y , for a s i g n i f i c a n t increase in r a d i o a c t i v i t y which poses no hazards to health, a country i s merely "invited" to send " a l l available information" to the European Nuclear Energy Agency for c i r c u l a t i o n to and study by other countries. Thus, there would appear to be a large measure of agreement between states maintaining nuclear - 83 -i n s t a l l a t i o n s on the need to n o t i f y affected states i n the case of accidental emissions which constitute a health hazard. The two i l l u s t r a t i o n s c i t e d suggest that states prefer that the information be transferred from one s p e c i f i c i n s t i t u t i o n or agency to another. This ensures that the information i s given to a body with competence i n that f i e l d , and seems a sensible provision. The Franco-Belgian b i l a t e r a l Agreement concerning protection from nuclear i n s t a l l a t i o n s i n the 21 Ardennes i s no exception. Although the whole Convention deals with "the problems of r a d i o l o g i c a l protection", of p a r t i c u l a r i n t e r e s t are A r t i c l e 4 and Annex III which concern themselves with mutual assistance in case of an accident at a power station. A permanent commission i s established in which the Parties " s h a l l place the means of assistance that they furnish" i n case of accident. Annex III provides (in very great detail). actions to be followed by the Parties and t h e i r authorities i n case of an accident. Much less s p e c i f i c than the preceding evidence of state 22 practice, i s the Great Lakes Water Quality Agreement, 1972, A r t i c l e IX (.2) of which simply provides that: When a party becomes aware of a special p o l l u t i o n problem that i s of j o i n t concern and requires immediate response, i t s h a l l n o t i f y and consult the other party forthwith about appropriate remedial action. Even Annex 8 which maintains a j o i n t contingency plan for o i l and hazardous materials p o l l u t i o n , i s generally phrased. Although many agreements regulating the u t i l i z a t i o n of 2 3 international r i v e r s also regulate p o l l u t i o n , none appear to make s p e c i f i c provision for n o t i f i c a t i o n of co-basin states i n the case of^the discharge of p a r t i c u l a r l y hazardous substances. However, there are some agreements i n the analagous f i e l d of hazards r e s u l t i n g from natural causes 24 such as floods. Thus, although some s p e c i f i c state practice has been i d e n t i f i e d , i t i s not extensive. For further support, general p r i n c i p l e s of international law must be considered, p a r t i c u l a r l y the "elementary consideration of humanity" p r i n c i p l e enunciated 25 by I.C.J, i n the Corfu Channel Case. Professor Bourne has applied similar reasoning to the obligation to give notice of "dangerous situations not v o l u n t a r i l y created" and since 2 6 his argument also seems applicable, i t w i l l be summarized. If anything, the duty to give notice ought to be stronger i n the case of p o l l u t i o n r e s u l t i n g from the a c t i v i t i e s for which a state i s responsible than for dangerous situations caused by "forces of nature". The Corfu Channel Case arose from the damage of B r i t i s h warships from mines within the t e r r i t o r i a l waters of Albania. The Court determined that the laying of the mines could not have been accomplished without the knowledge of the Albanian government. The Court held that c e r t a i n obligations stemmed 27 from t h i s finding of f a c t : - 85 -The obligations incumbent upon the Albanian authorities consisted of n o t i f y i n g , for the benefit of shipping In general, the existence of a minefield i n Albanian t e r r i t o r i a l waters and i n warning the approaching B r i t i s h warships of the imminent danger to which the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VIII, which i s applicable i n time of war, but on cert a i n general and well-recognized p r i n c i p l e s , namely: elementary considerations of humanity even more exacting i n peace than i n war; the p r i n c i p l e of the freedom of maritime communication; and every State's obli g a t i o n not to allow knowingly i t s t e r r i t o r y to be used for acts contrary to the right s of other States. Professor Bourne argues that t h i s statement was intended to be given and can be given a wide int e r p r e t a t i o n . General p r i n c i p l e s of common law derived from the t o r t s doctrine 28 29 of Rylands v Fletcher, and Goldman v Hardgrave are ci t e d i n support of t h i s contention. Both are concerned with the o bligation on a landowner to take reasonable care to see that dangerous situations on his land (in Rylands, man-made, and i n Goldman, Act of God) do not cause injury to his neighbours. Neither case deals s p e c i f i c a l l y with the duty to give notice of dangerous situations, but they do impose l i a b i l i t y for r e s u l t i n g damage, on the basis of a f a i l u r e to f u l f i l the duty of care. There are differences between the cases, though. In the Corfu Channel Case, n o t i f i c a t i o n could have prevented the accident. In Rylands, i t i s d i f f i c u l t to see what the neighbour should have been informed about. Information about the accumulation of water would not have s u f f i c e d , and once the water had escaped, i t was r e a l l y too l a t e . N o t i f i c a t i o n of the o r i g i n a l s t r i k i n g of the tree i n Goldman might have enabled the neighbour to have assisted - 86 -i n extinguishing i t , but once the f i r e was spreading, i t was too la t e . Thus the common law cases do not r e a l l y address the problem of n o t i f i c a t i o n ; they only address the problem of l i a b i l i t y . The concern here i s with the n o t i f i c a t i o n of a neighbour i n order that he may minimize or prevent damage. Thus, the Corfu Case i s d i r e c t l y on the point, and seems strong authority for the proposition that State A i s under an obliga t i o n to inform State B (an affected neighbouring state) of the discharge of p a r t i c u l a r l y noxious or hazardous substances. L i t t l e additional support can be derived from the common law, but the combination of state practice and the authoritative, though vague, statement of the I.C.J., would suggest that international law does recognize the duty to inform on the discharge of noxious substances. b. Is there a duty to n o t i f y affected neighbouring states of new projects which w i l l increase or sub s t a n t i a l l y increase p o l l u t i o n i n the neighbouring state? This question deals with the c l a s s i c a l t r a n s f r o n t i e r p o l l u t i o n s i t u a t i o n . A company i n State A, or State A i t s e l f , wishes to b u i l d a factory, the p o l l u t i o n from which may be f e l t i n State B, either because of pr e v a i l i n g wind d i r e c t i o n or because of discharges into an inte r n a t i o n a l r i v e r or groundwater system. Information i s desirable for a number of reasons which are worth noting because they indicate the type and range of information that should be exchanged. Information concerning the project w i l l enable the affected state to predict p o l l u t i o n levels and therefore consider to what extent i t s interests may be affected. It may also enable that state to suggest that another location may be more desirable owing to, for example, p r e v a i l i n g meteorological conditions. S i m i l a r l y , i t may enable the affected state or i t s c i t i z e n s to suggest d i f f e r e n t design techniques to reduce the p o l l u t i o n . F i n a l l y , i t would enable the state to draw up a complete environmental assessment or impact statement for the proposed project, thus highlighting the consequences of the host state's action. Both procedural and substantive rules can be said to have derived from the same general p r i n c i p l e s and therefore i t i s hardly surprising that procedural rules, l i k e the substantive r u l e s , are better developed for some classes of p o l l u t i o n than for others. Since the Second World War, international r i v e r basin law has been given a great deal of attention 30 by international j u r i s t s , and C. B. Bourne suggests that the procedural rules may now be subsumed under the general . . . 31 p r i n c i p l e of equitable u t i l i z a t i o n . Professor Bourne formulates the following propositions which are of i n t e r e s t here: - 88 -F i r s t , a state must give co-basin states p r i o r notice of works or u t i l i z a t i o n s that might cause them serious injury. Second, a state wishing to undertake a work or u t i l i z a t i o n that might cause serious injury to co-basin states must give them s u f f i c i e n t information about i t so that they may appreciate the true nature of the proposed work or u t i l i z a t i o n . 32 Thus, Dr. Bourne's thesis i s e s s e n t i a l l y that p o l l u t i o n i s simply one way of u t i l i z i n g an international r i v e r . Both the substantive and procedural law must be consistent with the p r i n c i p l e of equitable u t i l i z a t i o n of the waters of an international drainage basin. The general law concerning the u t i l i z a t i o n of the waters of international r i v e r s has been considered elsewhere. I t merely remains to ask whether Dr. Bourne's analogy i s correct. That i s to say, can the procedural rules concerning p o l l u t i o n be simply subsumed under the general p r i n c i p l e s for u t i l i z a t i o n of r i v e r waters. Po l l u t i o n i t s e l f i s not a use of water, rather i t i s usually a consequence of use. In some cases, such as acid r a i n , the source and the water p o l l u t i o n may only be very i n d i r e c t l y related. However, the Helsinki Rules (which are Dr. Bourne's primary authority) make nothing of t h i s d i s t i n c t i o n , except by way of admitting that the p o l l u t i o n may derive from an otherwise b e n e f i c i a l a c t i v i t y such as some 33 i n d u s t r i a l process. Indeed, i t may well be that the d i s t i n c t i o n i s s t e r i l e insofar as p o l l u t i o n i s usually so much a d i r e c t and immediate consequence of the b e n e f i c i a l - 89 -a c t i v i t y that i t i s pointless to separate them i n law. State practice, too, i n d i r e c t l y supports the s t e r i l i t y of the d i s t i n c t i o n since there do not seem to be any international agreements dealing with the u t i l i z a t i o n of an international r i v e r as a whole, which as well as making s p e c i f i c provision for notice of projects l i k e l y to have a serious e f f e c t on 34 co-basin states, also have a s p e c i f i c clause requiring notice for projects which may have serious p o l l u t i n g consequences. Thus, the conclusion must be that the rules of equitable u t i l i z a t i o n apply with f u l l force to p o l l u t i o n of in t e r n a t i o n a l r i v e r s . State practice on s p e c i f i c a l l y f l u v i a l p o l l u t i o n i s therefore primarily of importance as an i n d i c a t i o n of the general trend of t r a n s f r o n t i e r p o l l u t i o n . No comparable work by such an i n f l u e n t i a l group of j u r i s t s as the International Law Association or the I n s t i t u t e of International Law has been carried out for other f i e l d s of transboundary p o l l u t i o n . The reasons for t h i s d i s p a r i t y are not hard to f i n d . Serious water p o l l u t i o n has a longer history and the problems i t poses have been studied as part of the much larger issue of r i v e r basin u t i l i z a t i o n . Great reliance must therefore be placed on state practice, and recommendations of international organizations. Considerable attention, however, was given to the duty to exchange information on environmental questions at the time of the Stockholm Conference. * * * * * * * * * * * - 90 -The Stockholm Conference reached agreement on two p r i n c i p l e s concerning the substantive law of t r a n s f r o n t i e r p o l l u t i o n : 35 P r i n c i p l e s 21 and 22. However, during the preparatory stage of the Conference, these two P r i n c i p l e s were discussed in conjunction with a further p r i n c i p l e r e l a t i n g to the duty to provide a proper warning to other states. F i n a l l y , the Conference did not adopt the p r i n c i p l e , mainly due to B r a z i l i a n opposition and, instead, the question was passed for discussion to the 27th Session of the General Assembly. 3 6 Two clauses of Resolution 2995 are relevant here. The General Assembly: 2. Recognizes that co-operation between states in the f i e l d of the environment, including co-operation towards the implementation of p r i n c i p l e s 21 and 22 of the Declaration of the United Nations Conference on the Human Environment, w i l l be e f f e c t i v e l y achieved i f o f f i c i a l and public knowledge i s provided of the technical data r e l a t i n g to the work to be carried out by states within t h e i r national j u r i s d i c t i o n , with a view to avoiding s i g n i f i c a n t harm that may occur in the environment of the adjacent area; 3. Further recognizes that the technical data referred to i n paragraph 2 above w i l l be given and received i n the best s p i r i t of co-operation and good-neighbourliness, without t h i s being construed as enabling each state to delay or impede the programme and projects of exploration, exploitation and development of the natural resources of the states i n whose t e r r i t o r i e s such programmes and projects are carried out. This Resolution i s deserving of further analysis a f t e r tracing i t s history, i n an attempt to determine the extent of state consensus. At Stockholm, the Working Group of the Preparatory Committee o r i g i n a l l y proposed that: - 91 -Relevant information must be supplied by states on a c t i v i t i e s or developments within t h e i r j u r i s d i c t i o n or under t h e i r control whenever they believe, or have reason to believe, that such information i s needed to avoid the r i s k of s i g n i f i c a n t adverse e f f e c t s on the environment i n areas beyond t h e i r national j u r i s d i c t i o n . 37 As phrased, t h i s proposition covers not only new projects, but also those already established. B e l i e f of the r i s k of " s i g n i f i c a n t adverse e f f e c t s " i s s u f f i c i e n t to c a l l for the supply of information, but the proposition does not indicate to whom the information i s to be supplied. Numerous 3 8 amendments were proposed, and a l l seem to focus upon proposed or envisaged projects rather than e x i s t i n g a c t i v i t i e s . The Netherlands proposal was the strongest: States s h a l l inform other states d i r e c t l y concerned or appropriate i n t e r n a t i o n a l organizations on any envisaged a c t i v i t y which may cause damage to the environment of those states or of areas beyond the l i m i t s of national j u r i s d i c t i o n ; i n appropriate cases states s h a l l enter international consultation. 39 Some Latin American and African states supported t h i s motion, but B r a z i l (involved i n a dispute at that time with Argentina) proposed the following r e s t r i c t i o n : No state i s obliged to supply information under conditions that, i n i t s founded judgement, may jeopardize i t s national security, economic development or i t s national e f f o r t s to improve environment. 4 0 In view of the divergence of opinion, i t i s hardly surprising that the Conference was unable to reach agreement on t h i s v i t a l matter. What t h i s does suggest i s that Resolution 2 995 represents the lowest common consensus among nations. This view i s borne out by the fact that the Resolution was proposed by B r a z i l (which was the main opponent to a strong P r i n c i p l e 2 0) and adopted by 110 votes to none with 10 abstentions. There was some opposition to the Resolution, but t h i s came mainly from countries who were attempting to strengthen i t . Canada objected to i t on the ground that i t appeared to suggest that a l l the implementation of P r i n c i p l e s 21 and 22 required 42 was the exchange of technical information. Cl e a r l y , Canada argued, something more was needed, and therefore Canada favoured i n t e r a l i a the replacement of " e f f e c t i v e l y achieved" by " f a c i l i t a t e d " . Other states objected to the word " s i g n i f i c a n t " , e s p e c i a l l y since P r i n c i p l e s 21 and 22 both ref e r only to "damage" and not s i g n i f i c a n t damage. F i n a l l y , "adjacent area" was thought to be too l i m i t i n g since p o l l u t i o n can extend over long distances. Both P r i n c i p l e s 21 and 22 ref e r to "other states, or... areas beyond the l i m i t s of national j u r i s d i c t i o n " . Despite these c r i t i c i s m s , the Resolution was adopted as proposed. The main Canadian objection was met by also adopting Resolution 2996 which declared that "no resolution adopted at the twenty-seventh session of the General Assembly can a f f e c t P r i n c i p l e s 21 and 22 of the Declaration of the United Nations Conference on 43 the Human Environment". As i t stands, then, Resolution 2 995 refers only to prospective works, but does favour the n o t i f i c a t i o n of the affected public as well as o f f i c i a l s . N o t i f i c a t i o n of a project i s not an end i n i t s e l f . It i s usually accepted that one aim of n o t i f i c a t i o n i s to permit the affected state to formulate objections which may then - 93 -be discussed with the i n i t i a t i n g state. Resolution 2995 t a c i t l y assumes that n o t i f i c a t i o n w i l l lead to negotiation; otherwise there would'be no need" to include paragraph 3. Resolution 2995 i s weak. It i s not mandatorily worded and i t represents a minimum consensus. However, i t does envisage cooperation beyond mere n o t i f i c a t i o n , and there are c l e a r l y a number of states which take a position beyond the Resolution and consider that international law requires n o t i f i c a t i o n . Paragraph 3 of Resolution 2995 highlights the objections of many of the developing nations to broad obligations to n o t i f y affected states of projects. Their concern i s that obligations to take, possibly lengthy, procedural precautions, may r e s u l t i n the delay of more important development projects. The i n d u s t r i a l i z e d f i r s t world, however, no longer places an inordinate emphasis on development, and thus q u a l i t y of environment and p o l l u t i o n control have of l a t e received a great deal of attention from international organizations of i n d u s t r i a l i z e d countries. In p a r t i c u l a r , these organizations have been w i l l i n g to discuss procedural obligations to n o t i f y . In November 1974, the Council of OECD adopted a series of p r i n c i p l e s concerning t r a n s f r o n t i e r p o l l u t i o n which represented a culmination of two and one half years' work 44 on the subject by the Environment Directorate. I n i t i a l l y , ^ 94 -th i s work was economically orientated but by August 1972 the 45 work had taken on a m u l t i d i s c i p l i n a r y character, and agreement was reached on establishing a special ad hoc group on tra n s f r o n t i e r p o l l u t i o n . The ad hoc group established both short and long term objectives and the series of recommendations and p r i n c i p l e s approved by the Council on November 14, 1974 are the f r u i t of the short term objectives. The l i s t of Recommendations i s impressive; Declaration on 46 Environmental Policy, Recommendation on the Assessment of 47 the Potential Environmental E f f e c t s of Chemicals, Recommendations on the Analysis of the Environmental 48 Consequences of Si g n i f i c a n t Public and Private Projects, 49 Recommendation on the Control of Eutrophication of waters, Recommendation on Energy and the Environment, 5^ Recommendation on the Implementation of the Polluter Pays P r i n c i p l e , 5 1 and f i n a l l y , and most importantly, Recommendation on P r i n c i p l e s 52 Concerning Transfrontier P o l l u t i o n . Most of these P r i n c i p l e s recognize the importance of cooperation between states. Since 197 4 the most important Recommendation approved has been the Recommendation for Strengthening International 53 Cooperation on Environmental Protection i n Frontier Regions. On environmental issues, OECD Recommendations gen ally takethe form of a Preamble stating the problem, followed by Recommendations to member states and concluded by instructions to the "Environment Committee to assess the action taken pursuant to t h i s Recommendation and to report thereon to the Council". This information may be used by the Council - 95 -to monitor implementation, and permits i t to c r i t i c i z e Parties for non-implementation. To a limited extent, t h i s makes up for the non-binding character of the Recommendations. The member nations of the OECD constitute a remarkably homogenous group, economically, p o l i t i c a l l y and s o c i a l l y . Consequently, the Organization has placed emphasis on cooperation at a l l levels of government, both administrative and p o l i t i c a l . This homogeneity has also led to an investigation of private as well as public remedies. To make t h i s cooperative devolution e f f e c t i v e , the OECD Recommendations which c a l l for neighbouring states to be n o t i f i e d , informed or consulted, generally require that the affected public also be informed through channels established by i n d i v i d u a l states. OECD1s tr a n s f r o n t i e r p o l l u t i o n p o l i c y 54 on the private side can be summed up i n two p r i n c i p l e s : the p r i n c i p l e s of non-discrimination and of equal r i g h t of 55 access. Thus, mtergovernment procedural obligations only provide half the picture. To f u l l y appreciate the thoroughgoing nature of the neighbour-state cooperation envisaged by OECD, i t i s necessary to keep both the public and private orientated procedures i n mind. For the most part, OECD Recommendations require n o t i f i c a t i o n where there i s a " s i g n i f i c a n t r i s k " of tr a n s f r o n t i e r 56 57 po l l u t i o n , or the actual occurrence of p o l l u t i o n . Information should be communicated to "other countries which are or may be affected" and to designated authorities i n the exposed country, for communication to "persons exposed" . . 59 to a s i g n i f i c a n t r i s k . The information should be "early" and " r e l e v a n t " , ^ "appropriate",^ 1 and s u f f i c i e n t to enable the persons exposed to exercise " i n a timely manner" t h e i r 6 2 p r i v i l e g e of access and equal treatment i n the courts. OECD po l i c y has also extended beyond the mere duty to n o t i f y . The P r i n c i p l e s contain the negative and p o t e n t i a l l y very s i g n i f i c a n t Recommendation that: Countries should r e f r a i n from carrying out projects or a c t i v i t i e s which might create a s i g n i f i c a n t r i s k of tr a n s f r o n t i e r p o l l u t i o n without f i r s t informing the countries which are or may be affected and, except i n cases of extreme urgency, providing a reasonable amount of time i n the l i g h t of circumstances for d i l i g e n t consultation. 63 Thus, OECD suggests r e s t r i c t i v e f e t t e r s on a state's a b i l i t y to act; not only should a state n o t i f y affected states, but i t should not develop projects u n t i l n o t i f i c a t i o n and "d i l i g e n t consultation" have taken place. Paragraph 7 of the P r i n c i p l e s provides that consultation should take place over a "reasonable period of time". The duty to consult i s reasonable, because t h i s i s one of the major purposes of the obligation to n o t i f y , and i s therefore probably capable of a wider application than OECD member states. Although the duty not to develop without n o t i f i c a t i o n and consultation seems equally reasonable, i t i s less l i k e l y to receive a wide application because there i s always a danger that the - 97 - ' affected state w i l l abuse the consultative procedure i n order to delay implementation of the project. The r i s k of t h i s increases amongst nations less homogenous than OECD member states. The Recommendation attempts to minimize t h i s danger by providing i n paragraph 8 that "such consultations held i n the best s p i r i t of cooperation and good neighbourliness should not enable a country to unreasonably delay or to impede the a c t i v i t i e s or projects on which consultations are taking place. The main innovation of OECD procedural rules has been the espousal of the development of impact assessments and statements on an international l e v e l . This, of course, also contains elements of substantive law. The Frontier Regions Recommendation attempts to extend the p r i n c i p l e of domestic impact statements to a l l areas affected by a proposed development, whether or not they are i n the t e r r i t o r y of the country of o r i g i n . This i s an important step because i t involves the interests of neighbouring states being considered at an e a r l i e r stage i n the planning process. This i s preferable to fo r m a l i s t i c consultation at a time when i t i s too "late for the country of o r i g i n to change i t s plans. Transfrontier impact statements were impliedly considered by OECD i n 1974 i n the Recommendation on the Analysis of the Environmental Consequences of S i g n i f i c a n t Public and Private Projects. This Recommendation considered that the forecasting - 98 -of the consequences of proposed projects was one of the most helpful ways "of r e a l i s i n g environmental p o l i c y goals, 65 either within a country's t e r r i t o r y or beyond i t s boundaries". Impact statements on a tra n s f r o n t i e r basis are a p a r t i c u l a r l y 6 6 clear implementation of the P r i n c i p l e of Non-Discrimination, but because information i s required from a neighbouring state, they presume close cooperation between the state of o r i g i n and the affected state. This d i f f i c u l t y was recognized by the "Frontier Regions Recommendation" which recommended that: Countries concerned should co-operate and encourage t h e i r competent regional and l o c a l e n t i t i e s on both sides of the f r o n t i e r to do likewise - i n gathering the information required for the environmental impact study and possibly to provide or transmit such information to those persons responsible for the impact study. Although t h i s l a s t phrase i s very weak ("possibly to provide") i t enshrines an es s e n t i a l p r i n c i p l e which w i l l , no doubt, grow i n importance. Although OECD Recommendations are not binding on member states, they are the re s u l t of car e f u l study and consideration by OECD's Environment Committee, and are approved by the OECD Council. As such, they represent a consensus of member states on tra n s f r o n t i e r environmental questions, and are therefore l i k e l y to f a c i l i t a t e and influence the development of related norms of international law, since they represent a p a r t i c u l a r l y concrete form of state opinion. Of p a r t i c u l a r relevance i s A r t i c l e VII of the Insti t u t e of International Law's 1979 Resolution on the p o l l u t i o n of international r i v e r s and lakes. ^ a - 99 -Once again, treaty practice i s p a r t i c u l a r l y f e r t i l e : din r i v e r basin r e l a t i o n s . However, the s p e c i f i c question of p o l l u t i o n has largely been dealt with under the more general heading of r i v e r basin u t i l i z a t i o n . As has been shown, there i s a considerable state treaty practice which requires basin states to n o t i f y co-basin states of projects which w i l l s u b s t a n t i a l l y a f f e c t t h e i r u t i l i z a t i o n of the waters of the r i v e r . One such u t i l i z a t i o n i s c l e a r l y p o l l u t i o n , and i t i s unusual for t r e a t i e s to s p e c i f i c a l l y make provision for projects which materially a f f e c t other co-basin states by 6 7 p o l l u t i o n . More l i k e l y i s a clause such as " n o t i f i c a t i o n s h a l l be given of works by one Party that w i l l materially a f f e c t the other Party". The generality of r i v e r basin treaty practice w i l l not be considered here, but only those t r e a t i e s that deal s p e c i f i c a l l y with n o t i f i c a t i o n of projects causing substantial p o l l u t i o n . One of the few such agreements i s the Convention for the Protection of Lake Constance against P o l l u t i o n (1960), which provides that: En p a r t i c u l i e r , les Etats r i v e r a i n s se communiqueront, mutuellement, en temps opportun, les projets d' u t i l i s a t i o n d'eau dont l a r e a l i s a t i o n pourrait porter atteinte. aux intere t s d.'un autre Etat r i v e r a i n en ce qui concerne l e maintien de l a salubrite des eaux du lac de Constance. Ces projets ne seront r e a l i s e s qu'apres avoir ete discute's en commun par les Etats r i v e r a i n s , a moins q u ' i l n'y a i t p e r i l en l a demeure ou que les autres Etats n'aient consenti expressement a leur execution immediate. 68 The provision goes beyond mere n o t i f i c a t i o n and requires consultation. The provision i s also actuated merely by - 100 -projects which a f f e c t " l a s a l u b r i t e " of the water. The Great Lakes Water Quality Agreement, although very d e t a i l e d , does not est a b l i s h an obligation to n o t i f y the other state of projects which w i l l cause substantial p o l l u t i o n . However, A r t i c l e VIII (.1) provides that the International Joint Commission w i l l " be given any information i t requests 69 as to water q u a l i t y . Such a provision, however, i s not as e f f e c t i v e as n o t i f i c a t i o n of a proposed p o l l u t i n g a c t i v i t y . The Council of Europe Draft Convention for the Protection 70 of International Watercourses Against P o l l u t i o n makes no s p e c i f i c provision for the n o t i f i c a t i o n of new p o l l u t i n g a c t i v i t i e s . However, t h i s duty may be implied from the thoroughgoing cooperation required by A r t i c l e s 7, 8 and 12. In addition, A r t i c l e 10 requires that certain co-riparian states should cooperate to est a b l i s h improved water q u a l i t y standards and devise p o l i c i e s to help bring them about. I t i s d i f f i c u l t to see how they would possibly do t h i s without no t i f y i n g the other state of projects which would have a detrimental e f f e c t on e x i s t i n g water standards. The Economic Commission for Europe has also been working i n t h i s f i e l d through i t s Committee on Water Problems. This Committee i s i n the process of r e v i s i n g a 1966 declaration 71 on water p o l l u t i o n . However, the most recent d r a f t , 72 P r i n c i p l e 12 of which has yet to be revised, requires that: States sharing water resources should reach agreement before taking any action l i k e l y to have an adverse e f f e c t on the q u a l i t y of that water and undertake concerted action to improve - 101 -the q u a l i t y , control any p o l l u t i o n and take steps to guard against accidental p o l l u t i o n . M u l t i l a t e r a l agreements should e s t a b l i s h the water q u a l i t y standards to be obtained by ri p a r i a n states and make arrangements for them to n o t i f y each other of changes i n water quality and any proposed action to improve i t . Thus, l i k e the OECD P r i n c i p l e s Concerning Transfrontier 73 P o l l u t i o n , these P r i n c i p l e s are strong insofar as they go beyond n o t i f i c a t i o n , and require that agreement be reached. States should also n o t i f y other states of a l l changes i n water q u a l i t y rather than only where there i s a r i s k of substantial p o l l u t i o n . The authority of t h i s d r a f t i s limited since no f i n a l agreement has been reached on a possible r e v i s i o n of P r i n c i p l e 12, but the draft i s i n d i c a t i v e of a growing awareness among states of the need to e s t a b l i s h procedural obligations on tr a n s f r o n t i e r issues. Non-fluvial treaty law i s primarily regional i n character. The most detailed on procedural questions i s the Nordic 74 Environment Convention. This Convention places an emphasis 75 on private law remedies, but does impose d i r e c t obligations on the states party to i t . The Convention envisages that each state s h a l l appoint a "supervisory authority" which s h a l l be informed "as soon as possible" i f an "examining 77 authority" i n another state "examining the pe r m i s s i b l i t y of environmentally harmful a c t i v i t i e s finds that the a c t i v i t i e s e n t a i l or may e n t a i l nuisance of significance i n 7 8 another Contracting State". The words "may e n t a i l " - 102 -suggest that the Convention does apply to prospective a c t i v i t i e s . The supervisory authority may ask for further 79 and better p a r t i c u l a r s , but i t appears that the procedure for a s i t e inspection i s only available for determining 8 0 damage already caused. A r t i c l e 11 states that governmental consultation s h a l l take place at the request of one nation. While the strong procedures the Convention establishes are admirable, t h e i r potential for u n i v e r s a l i t y must be seriously questioned given the r e l a t i v e l y close integration of the Nordic states. The same l i m i t a t i o n must be placed on the Council of Europe's Resolution on A i r P o l l u t i o n i n Frontier Areas which recommends that member states: ...should i n p a r t i c u l a r ensure that the competent authorities (of neighbouring states) should inform each other i n good time about any project for i n s t a l l a t i o n s l i a b l e to pollute the atmosphere beyond the f r o n t i e r . The competent authorities beyond the f r o n t i e r should be able to make t h e i r comments on such projects. These comments should be given the same consideration and treatment as i f they had been made by the inhabitants of the country where the plant i s situated or proposed. 81 n" The touchstone for the Council i s simply " p o l l u t i o n " or " l i a b l e to pollute the atmosphere". The Nordic Convention i s much less precise. The obligations of states may be triggered by the standard of t h e i r own l e g i s l a t i o n (non-discrimination, A r t i c l e 2), by environmentally harmful a c t i v i t i e s ( A r t i c l e 6) or an a c t i v i t y that e n t a i l s or may e n t a i l "a nuisance of s i g n i f i c a n c e " . The l a t t e r , however, i s the important test both for n o t i f i c a t i o n and intergovernmental - 103 consultations under A r t i c l e 11. This uncertainty i s surprising i n the context of the Convention. Much more broadly based i s the OAU, African Convention on 8 2 the Conservation of Nature and Natural Resources. This Convention simply provides that contracting states s h a l l cooperate "whenver any national measure i s l i k e l y to a f f e c t 8 3 the natural resources of any other state". More s p e c i f i c a l the contracting states s h a l l supply the OAU with " a l l the information necessary for the complete documentation of 84 matters dealt with by t h i s Convention". It i s not clear who may request the information. A r t i c l e 14(3) has the merit of c l a r i t y upon t h i s point, at least when i t provides that "where any development plan i s l i k e l y to a f f e c t the natural resources of another state, the l a t t e r s h a l l be consulted". Consultation c l e a r l y implies and requires n o t i f i c a t i o n of the d e t a i l s of the project. The basic s i t u a t i o n of a proposed plant i n State A which w i l l or may cause s i g n i f i c a n t p o l l u t i o n i n State B i s r e l a t i v e l y simple. N o t i f i c a t i o n can be confined to one or two states c l e a r l y affected by the one plant. However, sulphur dioxide and other by-products of chemical industries can form the basis for long range transboundary a i r p o l l u t i o n which the ECE has defined as: - 104 -a i r p o l l u t i o n whose physical o r i g i n i s situated wholly or i n part within the area under the national j u r i s d i c t i o n of one state and which has adverse e f f e c t s in the area under the j u r i s d i c t i o n of another state at such a distance that i t i s not generally possible to d i s t i n g u i s h the contribution of i n d i v i d u a l emission sources or of groups of sources. 85 The problem has become of p a r t i c u l a r importance to Scandinavian countries receiving acid r a i n and general pollutant " f a l l o u t " from other i n d u s t r i a l i z e d countries of western Europe. In such cases, i t i s even easier for the p o l l u t i n g country to write o f f the p o l l u t i o n as an economic benefit, since i t i s more d i f f i c u l t to prove the emission source. In p r i n c i p l e , the general customs governing n o t i f i c a t i o n of projects l i k e l y to cause substantial p o l l u t i o n ought to be applied yet, i n practice, t h i s may prove d i f f i c u l t and the consequences far reaching. Special rules (and even the consideration of special rules) have been slow to develop and the ECE, whose Special Group on Long-range Transboundary A i r P o l l u t i o n which has now had f i v e sessions, has yet to 8 6 reach agreement on a dra f t convention. The present d r a f t makes no s p e c i f i c provision for n o t i f i c a t i o n of new projects but t h i s may be implied by reading paragraphs 3 through 6 in conjunction. Paragraph 3 provides for exchange of information, paragraph 5 for consultation, and paragraph 6 for the taking into account of the p r i n c i p l e s of paragraphs 2 to 5 i n developing the best p o l i c i e s i n p a r t i c u l a r for "new and r e b u i l t i n s t a l l a t i o n s " . 105 -4. Impact Statements It has already been noted that OECD has moved towards a p o l i c y requiring impact statements and that such statements are a p a r t i c u l a r l y clear implementation of the P r i n c i p l e 8 7 of Non-Discrimination. But they are also a p a r t i c u l a r l y e f f e c t i v e elaboration of the duty to n o t i f y , and t h e i r value i s beginning to receive wider appreciation at the international l e v e l because they permit the influence of p o l i c y at the formative state. Levin points out that the World Bank now requires the preparation of environmental impact reports as a p r i o r condition of the approval of 8 8 projects. The Revised Informal Composite Negotiating Text 8 9 also makes some provision for t h i s , and the United States National Environmental Policy Act has been construed by the courts to require the competent authorities to include transboundary e f f e c t s i n the environmental impact statements 90 they prepare. More recently, a U.S. Executive Order requires that U.S. government agencies taking actions that may have environmental e f f e c t s abroad must e s t a b l i s h procedures for taking these e f f e c t s into consideration before 91 going ahead with the program. Although there are substantial l i m i t a t i o n s , an impact statement would be required where the proposed action would cause emissions or effluents which would create a serious health r i s k . F i n a l l y , the EEC Council has published a preliminary draft d i r e c t i v e concerning the "assessment of the e f f e c t on the - 106 -92 environment of public and private development projects". Under the d i r e c t i v e , member states " s h a l l take the necesary measures to see that any authorization, approval or n o t i f i c a t i o n of a development which i s l i k e l y to have a s i g n i f i c a n t impact on the environment by vi r t u e of i t s nature, size and/or location i s preceded by an impact 93 . . assessment". This i s directed primarily at projects having purely national repercussions, but A r t i c l e 1 provides that: 1. Where a development i s l i k e l y to produce a s i g n i f i c a n t impact on the environment of one or more member states other than that in which i t i s proposed, the competent authorities s h a l l submit the impact assessment for consultation to the authorities in Member State(s) affected. 2. The time-limit for consultation s h a l l not be more than six-months from the date when the impact assessment was submitted. 3. The authorities i n the Member State(s) affected which have received n o t i f i c a t i o n under paragraph 1 s h a l l : a. publish the impact assessment; b. make arrangements for consulting the government authorities and the sections of the public concerned... c. send t h e i r comments to the competent authority i n the Member State of o r i g i n . A r t i c l e 4 provides a l i s t of the factors which should be taken into consideration, and the Directive i s a detailed example of what might become the norm among cl o s e l y integrated states. Some of i t s provisions must be confined to the - 107 -Community context such as paragraph 3 (supra) which imposes duties upon the receiving states. In the context of f u l l y sovereign states, i t would be d i f f i c u l t to j u s t i f y such a . . 94 provision. A requirement to conduct an impact statement i s c l e a r l y not, as yet, a norm of international law. One cannot even say that there i s a strong state practice favouring i t s adoption. 94a However, i t can be said that the practice i s growing, both nat i o n a l l y and i n t e r n a t i o n a l l y ; that there are no fundamental objections to the p r i n c i p l e ; that i t provides a p a r t i c u l a r l y e f f e c t i v e way of taking into account the interests of affected states and, f i n a l l y , within close-knit regional organizations and groupings, i t has already found some acceptance. 5. Conclusion It cannot be said that there i s an established rule of customary international law requiring states to n o t i f y neighbouring states of new projects which may s u b s t a n t i a l l y increase p o l l u t i o n i n that state. State practice, outside f l u v i a l law, i s confined to the i n d u s t r i a l i z e d f i r s t world and i s e s p e c i a l l y intense only amongst well-integrated and homogenous groupings of states. Within these groupw, however, evidence seems to indicate that there i s some consensus. Thus, i t i s s u f f i c i e n t i f - 108 -there i s a r i s k of p o l l u t i o n . The r i s k , however, must be of substantial or s i g n i f i c a n t p o l l u t i o n . There are more l i b e r a l exceptions to t h i s . There i s no agreement on the necessity to ensure that the people affected are n o t i f i e d as well as the state i n s t i t u t i o n concerned, although practice does seem to be moving t h i s way. The same can be said for impact statements. In view of the disagreement over the so-called P r i n c i p l e 2 0 at Stockholm, there i s a need for a more widespread and consistent practice before the obligation to n o t i f y can be though of as more than a regional practice. c. Is there a duty on neighbouring states to exchange information concerning ex i s t i n g p o l l u t i o n l e v e l s , and p o l l u t i o n standards i n f r o n t i e r regions? The rationale for the exchange of information appears to be threefold. F i r s t l y , such an exchange permits the monitoring of p o l l u t i o n l e v e l s . It allows states to i d e n t i f y sources and to ascertain the e f f i c a c y of controls and whether or not p o l l u t i o n l e v e l s are increasing. Secondly, an exchange of information on emission standards permits states to coordinate t h e i r a c t i v i t i e s and adopt p a r a l l e l l e g i s l a t i o n . This w i l l a s s i s t i n removing the economic incentive to pollute i n f r o n t i e r s i t e s . F i n a l l y , exchange w i l l foster s c i e n t i f i c cooperation on e f f e c t i v e p o l l u t i o n control mechanisms. - 109 -The body of law attaching to the exchange of information 96 in r i v e r basins has already been considered. For the most part, p o l l u t i o n data w i l l be included i n the general exchange of hydrologic data within a r i v e r basin. Once again the greatest concentration of state practice i s in the F i r s t World, p a r t i c u l a r l y Europe. Some of the resolutions and p r i n c i p l e s of international organizations simply c a l l for routine exchange of information. For example, the ECE Draft Declaration on the Prevention and Control of Water Po l l u t i o n including Transboundary P o l l u t i o n simply states that international cooperation should be f a c i l i t a t e d and could include "exchange of s c i e n t i f i c and 9 8 technical information". Much more common however, and r e f l e c t i n g the close integration of many of these "regional" organizations, i s a recommendation not only that information should be exchanged, but also that the information should be compatible. Typical i s the OECD Recommendation for Strengthening International Cooperation i n Frontier Regions, which provides: Countries should take p a r t i c u l a r pains to ensure compatibility i n p o l l u t i o n measuring methods used by t h e i r respective technical services on the i r side of the f r o n t i e r . They should take similar action to ensure compatibility i n respect of p o l l u t i o n assessment c r i t e r i a and the s t a t i s t i c a l data on which environmental protection measures in t h e i r f r o n t i e r regions are based. - 110 -The OECD "general p r i n c i p l e s " contain a sim i l a r p r o v i s i o n . 1 0 0 Neither l i m i t the duty to exchange information to "substantial p o l l u t i o n " ; the general p r i n c i p l e s simply require the exchange of " a l l relevant s c i e n t i f i c information and data on t r a n s f r o n t i e r p o l l u t i o n " . The EEC has gone beyond t h i s stage and has sp e c i f i e d common procedures for the exchange of information. For example, the Atmospheric P o l l u t i o n P r o c e d u r e 1 0 1 s p e c i f i e s that d a i l y average concentrations s h a l l be recorded and exchanged between designated agencies, within 6 months of being taken. On a global scale, UNEP, following Recommendation 7 9 of the Stockholm Action P l a n , 1 0 2 has established Earthwatch 1 0 3 with a mandate to monitor p o l l u t i o n l e v e l s . The "Global Environmental Monitoring System" works on the basis of voluntary p a r t i c i p a t i o n of states, but i t c l e a r l y i l l u s t r a t e s the international i n t e r e s t in such information. The formal practice of information exchange within European regional organizations i s therefore extensive, and r e f l e c t s an appreciation of the importance of basic information to future cooperation. Outside Europe and r i v e r basin development, state practice i s sparse and therefore neither a norm of international law nor even a universal state practice can be i d e n t i f i e d . - I l l -d. Negotiation and Consultation N o t i f i c a t i o n of the discharge of p a r t i c u l a r l y noxious substances and the routine exchange of information both have an i n t r i n s i c value even i f not followed up by consultation and negotiation. The same cannot be said for the n o t i f i c a t i o n of affected neighbouring states of new projects l i k e l y to r e s u l t i n substantial p o l l u t i o n . N o t i f i c a t i o n i s practised because the t e r r i t o r i a l i n t e g r i t y of the neighbouring state may be threatened. It i s un l i k e l y that the affected state w i l l simply acquiesce i n t h i s threat to i t s i n t e g r i t y . It i s far more l i k e l y that on being n o t i f i e d i t w i l l wish to discuss the matter with the proponent state, considering such questions as p o l l u t i o n l e v e l s , possible compensation and perhaps changes i n design or s i t e . Within p a r t i c u l a r l y well integrated regions, or simply between two f r i e n d l y neighbouring states, i t may well be assumed, or sp e c i f i e d in some more general treaty o b l i g a t i o n , that consultation i s required, but some state treaty practice makes s p e c i f i c provision for further negotiation and consultation i n respect of t r a n s f r o n t i e r p o l l u t i o n . 1 ^ Some such t r e a t i e s or dr a f t t r e a t i e s 1 ^ specify that the parties should reach agreement. Whether t h i s i n fact means that parties are act u a l l y under 107 an obligation to do so i s a moot point. But however the issue i s resolved, a provision to reach agreement should reasonably encompass an obligation to consult and negotiate. - 112 -Once again treaty practice i s strongest in Europe and 108 international r i v e r basins. In r i v e r basins, the system of negotiation i s frequently i n s t i t u t i o n a l i z e d i n the form of a commission; as part of the general p o l i c y of u t i l i z a t i o n , t h i s i s rare i n the purely p o l l u t i o n f i e l d , even amongst those conventions concerned with r i v e r basins. A s l i g h t departure from th i s practice can be seen i n the Council of Europe's Draft Convention for the Protection of International Watercourses, which envisages the establishment , . . . .. . . 109 of j o i n t , cooperative commissions. Both ECE and Council of Europe documents suggest that i n some f i e l d s there may be a duty to reach agreement. The Council of Europe's Recommendation on Fresh Water P o l l u t i o n Control recommends that r i p a r i a n states should reach agreement on a variety of factors including r e s p o n s i b i l i t y for p o l l u t i o n and water quality. 1''" 0 Water p o l l u t i o n i s s i m i l a r l y the basis of the ECE's statement that "states should reach agreement before taking any action l i k e l y to have an adverse e f f e c t " on water q u a l i t y . 1 1 1 C l e a r l y implied in both cases i s an obligation to consult and negotiate. In other situations the Council of Europe merely suggests that t r a n s f r o n t i e r authorities should be able to "make th e i r 112 comments on such projects" which implies consultation. The Nordic Convention c a l l s for consultation between the 113 states concerned i f requested, and the OECD makes a si m i l a r provision: - 113 -Countries should enter into consultation on an e x i s t i n g or foreseeable t r a n s f r o n t i e r p o l l u t i o n problem at the request of a country which i s or may be d i r e c t l y affected and should d i l i g e n t l y pursue consultation on t h i s problem over a reasonable period of time. 114 Consultation on request also forms the basis of the ECE 1s possible d r a f t convention on long-distance transboundary ,, .. 115 a i r p o l l u t i o n . Duties to consult e x i s t on a state-to-state basis insofar as they exist at a l l . In no case i s a state obliged to consult with a private body of affected c i t i z e n s , and thus t h i s more extensive duty may be distinguished from the duty to n o t i f y for which a growing trend favouring the d i r e c t n o t i f i c a t i o n of individuals was i d e n t i f i e d . While consultation 116 and negotiation are of great p r a c t i c a l importance for the discussion and settlement of disputes, state treaty practice i s l i mited. I t must therefore be concluded that state practice cannot be elevated to a p r i n c i p l e of general customary international law. 4. General Conclusion Procedural obligations i n the law of t r a n s f r o n t i e r p o l l u t i o n i d e a l l y should provide the necessary l e g a l techniques for i d e n t i f y i n g sources of p o l l u t i o n , both p o t e n t i a l and actual, for f a c i l i t a t i n g the exchange of information about such sources, including proposed projects which may cause p o l l u t i o n . And f i n a l l y , they should encourage further cooperation between neighbouring states, e s p e c i a l l y i n the form of consultation and negotiation, both to prevent disputes a r i s i n g and to f a c i l i t a t e the settlement of e x i s t i n g disputes. Transfrontier p o l l u t i o n i s a shared problem requiring cooperation from a l l the affected p a r t i e s . At present the international law of p o l l u t i o n s t i l l f a l l s short of these goals. The duty to inform affected neighbouring states of the release of noxious substances seems to be well defined and, although not supported by a strong state practice, i t was recognized i n p r i n c i p l e by the International Court i n the Corfu Channel Case. The same cannot be said of the other three duties discussed i n the chapter. State practice, while strongly i n favour of a duty to n o t i f y affected states of a p o t e n t i a l l y pollution-causing project, i s limited to the developed F i r s t World. Furthermore, one cannot even e s t a b l i s h a strongly consistent practice i n favour of either the duty to exchange information or consult and negotiate concerning t r a n s f r o n t i e r p o l l u t i o n problems. Thus, international norms are developing along the l i n e s indicated, but practice needs to be more consistent and widespread and associated with the r e q u i s i t e opinio J u r i s before i t i s possible to suggest that there i s a l e g a l obligation upon states to cooperate i n these f i n a l three cases. - 115 -FOOTNOTES 1. Report of the United Nations Conference on the Human Environment, Stockholm, 5-16 June 1972, A/Conf. 48/14, Rev.l, P r i n c i p l e 1. l a . States claim exclusive sovereignty to the a i r space above t h e i r t e r r i t o r y but paradoxically " a i r " plus any p a r t i c l e s i n suspension, are i n constant.circulation. 2. Corfu Channel Case, I.C.J. Reports 4, 22 (1949). 3. 24 I.L.R. 101 at 130 (1959). 4. 3 U.N.R.I.A.A. 1965 (1949); J . P. Dobbert, Water P o l l u t i o n and  International River Law, 34 A.A.A. Yearbook 60, 85 (1964) states, for example, that few international lawyers would seriously question t h i s p r i n c i p l e . 5. See for example, G. Handl, T e r r i t o r i a l Sovereignty and the Problem of Transnational P o l l u t i o n , 69 A.J.I.L. 50, 58 (1975), and K. Hoffman, State Responsibility i n International Law and  Transboundary P o l l u t i o n I n j u r i e s, 25 I.C.L.Q. 509, 517 (1976). 6. Supra, n . l . 7. Handl, supra, n.5, at 67. See also U.N. Charter of Economic Rights and Duties of States, A/Res/3281 (XXIX), 15 January, 1975, A r t i c l e 30, reported i n 14 I.L.M. 257 (1975). 8. Handl, i b i d , at 72. 9. OECD Secretariat, Observations, on the Concept of the International Responsibility of States i n r e l a t i o n to t h e i r  Environment, i n OECD, Legal Aspects of Transfrontier P o l l u t i o n , 380-408 at 382 (1977). 10. Ibid., 384-385, footnotes omitted. 11. Helsinki Rules on the Uses on the Waters of International Rivers, adopted by the International Law Association, 2 0 August, 1966. See also the Resolution of the Ins t i t u t e of International Law, Athens, September 1979, adopting the work of the Committee on the P o l l u t i o n of International Rivers and Lakes. 12. See, for example, R. Bi l d e r , C o n t r o l l i n g Great Lakes P o l l u t i o n : A Study i n US-Canadian Environmental Co-operation, i n Hargrove (ed.) Law Ins t i t u t i o n s and the Global Environment, 294-347 (1972). 13. See A. E. Utton, International Water Quality Law i n Te c l a f f & Utton (eds.) International Environmental Law, 154-186 at 181, (1974). - 116 -14. This also l i m i t s the extent to which Community acts are an appropriate analogy for the development of customary international law. 15. See, for example, Convention between France, West Germany and Luxembourg concerning the Canalization of the Moselle, Luxembourg, 27 October 1956, i n Ruster and Simma, International  Protection of the Environment (1975) XI, 5575, (hereafter c i t e d as Ruster. A r t i c l e 55 states that: "The Contracting States s h a l l take the necessary measures to ensure that the Moselle waters... are protected from p o l l u t i o n and... s h a l l e s t a b l i s h the necessary co-operation between the competent services of said states." 15a. One can, I think, assume with j u s t i f i c a t i o n that i n any case i n which the pollutant i s p a r t i c u l a r l y noxious or hazardous there i s always potential for substantial damage being i n f l i c t e d . 16. Ibid., Ruster XI, 5785, A p r i l 4, 1974. See also A r t i c l e VII (l)c of the Institute of International Law Resolution, September 1979, supra, n . l l . 17. O f f i c i a l Journal of the European. Communities No. C99/1, 2 May 1975. 18. , S. P. Johnson, The Pollution-Control Policy of the European Communities 128-130 (1979) . 19. Organization for European Economic Co-operation: the forerunner of the OECD, i t was created i n 1948 to coordinate common actions among Marshall Plan r e c i p i e n t countries aft e r World War Two. 20. Ruster, XIII, supra, n.15 at 6598, decisions are binding on the p a r t i e s . See also the report to the OEEC Council by the Steering Committee for Nuclear Energy, i b i d , at 6593. 21. Ruster, XII, supra, n.15 at 6204, Paris, 23 September 1966. 22. Ibid., X at 5292, Ottawa, A p r i l 15, 1972. 23. See, for example, the agreements c i t e d i n J. P. Dobbert, Water P o l l u t i o n and International River Law, 35 Yearbook of the A.A.A., 60-100 (1965). 24. See C. B. Bourne, Procedure i n the Development of  International Drainage Basins, 22 U. of Toronto L.J. 172 at 182-187 (1972). 25. .[1949], 1 C.J. Rep. 22. 26. Supra, n.24. - 117 -27. Supra, n.25. 28. (1868), L.R. 3 H.L. 330. 29. [1967] 1 A.C. 645 (P.C.). 30. Supra, preceding chapter. 31. C. B. Bourne, International Law and P o l l u t i o n of International  Rivers and Lakes, 6 U.B.C. Law Review 115, 122 (1971). 32. Ibid. 33. Helsinki Rules on the Uses of Waters of International Rivers, adopted by the I.L.A. 20 August 1966 at 25 (Commentary), and see also now, Resolution of the I n s t i t u t e of International Law, September 1979, supra, n . l l . 34. Most t r e a t i e s simply lump a l l u t i l i z a t i o n together, e.g. Statute Relating to the Development of the Chad Basin, Chad, 22 May 1964, A r t i c l e 5. Ruster, supra, n.15 at 5639. 35. Supra, n . l . 36. G.A. A/Res/2995 (XXVII) 19 January 1973, references omitted. 37. U.N. Doc. A/Conf. 48/4, Annex, para. 20 at 4. 38. For a summary, see L. B. Sohn, The Stockholm Declaration, 14 Harvard International Law Journal 423, 496-502 (1973). 39. U.N. Doc. A/Conf. 48/P.C./W.G.1 (II)/CRP 5 at 5. 40. U.N. Doc. A/Conf. 48/14 at 119. 41. Sohn, supra, n.38, at 502 points out that the abstentions were mostly from s o c i a l i s t countries which abstained on a l l resolutions r e l a t i n g to the environment. 42. U.N. Doc. A/C.2/SR.1567 at 14 (1972) prov. ed. 43. G.A. A/Res/2996 (XXVII) 19 January 1973. 44. R. E. Stein, The OECD Guiding P r i n c i p l e s on Transfrontier  P o l l u t i o n , 6 Ga.J.Int'l & Comp.L. 245 at 245 (1976). 45. See the papers c o l l e c t e d i n a report of a seminar on tr a n s f r o n t i e r p o l l u t i o n , August 1972, Problems i n  Transfrontier P o l l u t i o n (1974). 46. Ruster I, supra, n.15 at 2 93, a declaration rather than a recommendation. Only l i s t e d are those Recommendations dealing i n some respect with t r a n s f r o n t i e r p o l l u t i o n . 47. Ibid, at 296. - 118 -48. Ibid. at 297. 49. Ibid. at 306. 50. Ibid. at 310. 51. Ibid. at 313. 52. Ibid. at 316, hereafter " P r i n c i p l e s " . 53. 21 September 1978, reprinted i n 17 I.L (hereafter "Frontier Region Recommendation"). 54. The obligation to implement the private law procedures remains of course with the state i t s e l f . 55. The P r i n c i p l e of Non-Discrimination may be defined i n t h i s context as "Polluters causing t r a n s f r o n t i e r p o l l u t i o n should be subject to l e g a l or statutory provisions no less severe than those which would apply for any equivalent p o l l u t i o n occurring within t h e i r country, under comparable conditions and i n comparable zones, taking into account, where appropriate, the special nature and environmental needs of the zone affected." T i t l e C, supra, n.52. In OECD Recommendations the P r i n c i p l e of Equal Right of Access suggests that "whenever a project, a new a c t i v i t y or a course of conduct may create a s i g n i f i c a n t r i s k of t r a n s f r o n t i e r p o l l u t i o n and i s investigated by public a u t h o r i t i e s , those who may be affected by such p o l l u t i o n should have the same rights of standing i n j u d i c i a l or administrative proceedings i n the country where i t originates as those of that country." T i t l e D, i b i d . 56. P r i n c i p l e s , T i t l e E (1), supra, n.52; see also supra, n.52 11(2). 57. C(77) 28 ( F i n a l ) , reproduced i n 16 I.L.M. 977 (1977). T i t l e C (hereafter "Implementation Recommendation"). 58. P r i n c i p l e s , T i t l e E(.l)., supra, n.52. 59. Implementation Recommendation, T i t l e C, supra, n.57; and Frontier Region Recommendation 11(2), supra, n.53. 60. P r i n c i p l e s , T i t l e E ( l ) , supra, n.52. 61. Implementation Recommendation, T i t l e C, supra, n.57. 62. Ibid. 63. P r i n c i p l e s , T i t l e E ( l ) , supra, n.52. 64. Ibid., because of the dangers of delaying t a c t i c s the delegate for Spain reserved his position on T i t l e E. - 119 -65. Supra, n.58. 66. A p a r t i c u l a r l y c l e a r statement of t h i s i n T i t l e A of the Implementation Recommendation, supra, n.57: "When preparing and giving e f f e c t to t h e i r p o l i c i e s a f f e c t i n g the environment, countries should, consistent with t h e i r obligations and rights as regards the protection of the environment, take f u l l y into consideration the e f f e c t of such p o l i c i e s on the environment of exposed countries so as to protect such environment against t r a n s f r o n t i e r p o l l u t i o n . " 66a. This provides in part that states s h a l l , as far as possible, "promptly inform states that might be affected by a sudden increase i n the l e v e l of transboundary p o l l u t i o n i n the basin and take a l l appropriate steps to reduce the e f f e c t s of any such increase". 67. See, supra, text to n.34. 68. Convention between Baden-Wurtemberg, Bavaria, Austria and Switzerland on the protection of Lake Constance against p o l l u t i o n , Stockholm, 27 October 1960,reprinted i n U.N. L e g i s l a t i v e Texts and Treaty Provisions concerning the  U t i l i z a t i o n of International Rivers for other purposes than  Navigation, ST/LEG/Ser.B/12, at 438 (1963) (hereafter "U.N. Legis. Text". 69. Supra, n.22. 70. Supra, n.16 and text for authority of the Draft. 71. D. Van Beek, ECE Continues Preparations for High Level Meeting, 5 Environmental Policy and Law, 2 at 3 (1979). 72. 5 Environmental Policy and Law 63 (1979). ECE Draft Declaration of Policy on the Prevention and Control of Water Pol l u t i o n , including Transboundary P o l l u t i o n . 73. P r i n c i p l e s , T i t l e E(l) para. 8, supra, n.52. 74. Convention on the Protection of the Environment between Denmark, Finland, Norway and Sweden, Stockholm, 19 February, 1974, 13 I.L.M. 591 (1974) (hereafter "Nordic Environment Convention"). 75. Ibid., A r t i c l e s 2 and 3. 76. Ibid., A r t i c l e 4. 77. Court or administrative authority, i b i d . , A r t i c l e 5. 78. Ibid. 79. Ibid., A r t i c l e 6. 80. Ibid., A r t i c l e 10. - 120 -81. Resoln. (.71) 5, A i r P o l l u t i o n i n Frontier Areas, Ruster XV, supra, n.15 at 7580. 82. A l g i e r s , 15 September 1968, Ruster V, supra, n.15 at 2037. 83. Ibid. , A r t i c l e 16 (.2) b. 84. Ibid., A r t i c l e 16(2)c. 85. ECE possible d r a f t "Convention on long range transboundary a i r p o l l u t i o n " , paragraph 1, reprinted i n 5 Environmental Policy and Law 104 (1979) (hereafter "ECE draft on long range a i r p o l l u t i o n " ) . 86. Ibid., e s p e c i a l l y paragraphs 3-6. 87. Supra, text to n.65. 88. A. L. Levin, Procedures and Mechanisms for Avoidance and  Settlement of Environmental Disputes, 3 Earth Law J n l . 89 at 100 (1977) . 89. Revised ICNT of UNCLOS I I I , 18 I.L.M. 686 (1979), A r t i c l e 206 "When states have reasonable grounds for expecting that planned a c t i v i t i e s under t h e i r j u r i s d i c t i o n or control may cause substantial p o l l u t i o n of, or s i g n i f i c a n t and harmful changes to the marine environment, they s h a l l , as far as practicable, assess the potential e f f e c t s of such a c t i v i t i e s on the marine environment...". The res u l t s of such assessments s h a l l be either published or referred to competent and regional organizations.(Article 205) 90. Levin, supra, n.88 at 134, n.54. See also S. Gaines, Environmental Ef f e c t s Abroad of Major Federal Actions, 3 Harv.Environmental L.R. 136 (1979). 91. Executive Order 12114 (January 4, 1979), Environmental E f f e c t s Abroad of Major Federal Actions, reprinted i n 18 I.L.M. 154 (1979). For commentary, see Environmental Reviews Ordered  for US-Funded Foreign Projects, 5 Environmental Policy and Law 34 (1979). 92. 5 Environmental Policy and Law 44 (.1979). See also UNEP, Draft P r i n c i p l e s of Conduct i n the F i e l d of the Environment for the Guidance of States i n the Conservation and Harmonious U t i l i z a t i o n of Natural Resources shared by Two or more States, P r i n c i p l e 4, printed i n 4 Environmental Policy and Law 4 8 (197 8) and Appendix I. 93. EEC Council, i b i d . , A r t i c l e 3. - 121 -94. It must surely be up to each sovereign state to use the opportunity to assess the impact of a proposed project. 94a. Most recently the OECD has recommended to member states that they use environmental assessment procedures as appropriate, and further, that they should "consider, i n accordance with OECD Recommendations of the Council dealing with trans-f r o n t i e r p o l l u t i o n , i n s t i t u t i n g environmental procedures for actions that might have s i g n i f i c a n t transboundary e f f e c t s " . Assessment of Projects with S i g n i f i c a n t Impact on the Environment, reprinted i n 5 Environmental Pol i c y and Law 154 (1979). 95. Supra, text to n.88. 96. Supra, chapter 4. See also, A r t i c l e VII(1) of the Ins t i t u t e of International Law: Resolution, September 1979, supra, n . l l . States s h a l l , as far as practicable, "inform co-riparian States regularly of a l l appropriate data on the po l l u t i o n of the basin, i t s causes, i t s nature, the damage re s u l t i n g from i t , and the preventive procedures". 97. 5 Environmental Pol i c y and Law 63 (1979). 98. See also OECD Recommendation on Energy and Environment, November 14, 1974, i n Ruster I, supra, n.15 at 310, and paragraph 11, ECE possible d r a f t on Long-Range Transboundary A i r P o l l u t i o n , 5 Environmental Policy and Law 104 (1979). 99. Supra, n.53, paragraph 4. 100. Supra, n.52, T i t l e G, paragraph 11. o 101. EEC, Council Decision est a b l i s h i n g a common procedure for the exchange of information between the surveillance and monitoring networks based on data r e l a t i n g to atmospheric p o l l u t i o n caused by ce r t a i n compounds and suspended part i c u l a t e s , 24 June 1975, printed i n Ruster XV, supra, n.15 at 7634. 102. Supra, n . l . 103. Decisions of the F i r s t Governing Council of UNEP, June 1973, VII, printed i n Ruster I, 192, supra, n.15. More s p e c i f i c a l l y , UNEP has also established GEMS, the Global Environmental Monitoring System, with the mandate of c o l l e c t i n g environmental data i n an orderly and adequate manner to f a c i l i t a t e management. See Report of the Executive Director of UNEP on GEMS, UNEP/GC/31/Add.2, 25 February 1975. 10.4. See, for example, on a neighbouring state basis, the Ems-Dollard Treaty, West Germany and the Netherlands, A r t i c l e s 1 and 48, UNTS 4704 (1964). - 122 -105. Cf also e a r l i e r discussion of the obligation to s e t t l e disputes by peaceful means under the U.N. Charter, e s p e c i a l l y A r t i c l e 33. 106. See i n f r a , texts to notes 110 and 111. 107. See C. B. Bourne, Procedure i n the Development of  International Drainage Basins: The Duty to Consult and  Negotiate, 10 Canadian Y-.fi. of I n t ' l Law, 2182, 223-233 (1972), and discussions i n chapter 4. 108. For r i v e r basins, see i b i d , and supra, chapter 4. 109. Supra, n.16, A r t i c l e 14. For an example of a f l u v i a l treaty f a i l i n g to e s t a b l i s h a commission but concerned only with p o l l u t i o n and specifying consulting, see Convention to Protect Lake Constance, supra, n.68 and quotation of A r t i c l e 1(3) i n text. 110. Ruster XI, supra, n.15 at 5732, paragraph 11. 111. Supra, n.72, paragraph 12. 112. Ruster XV, supra, n.15 at 7580, Council of Europe Resolution No. (.71)5, A i r P o l l u t i o n i n Frontier Areas. 113. Supra, n.74, A r t i c l e 11. 114. P r i n c i p l e s , paragraph 6, supra, n.52. 115. Supra, n.85, P r i n c i p l e 5; see also A r t i c l e VII(1) of the Institute of International Law: Resolution, September 1979, states s h a l l , as far as practicable "consult with each other on actual or potential problems of transboundary p o l l u t i o n of the basin so as to reach, by methods of t h e i r own choice, a solution consistent with the interests of the States concerned and with the protection of the environment". 116. The meaning and extent of these duties has been discussed elsewhere. - 123 -PROCEDURAL OBLIGATIONS AND TRANSFRONTIER PETROLEUM DEPOSITS  1. Introduction Hard mineral deposits are adequately divided by an international f r o n t i e r , but hydrocarbons which have the capacity to be drained may not be. Hydrocarbon deposits which straddle a f r o n t i e r may be exploited from either side. The p r i n c i p l e s governing t h i s subject are of very recent development."'" As late as 1968, i n probably the f i r s t discussion of the question, Mr. Onorato acknowledged that "(t)he problem of apportioning an international common petroleum deposit appears, perhaps, 2 to be a somewhat academic one". Eight years l a t e r the same author considered that the problem was now of more immediate commercial and international concern and, furthermore, that the intervening years of state practice "have subs t a n t i a l l y set t l e d the question of what would be the body of law governing the apportionment of such deposits between the 3 several sovereigns under whose t e r r i t o r y any one might l i e " . The main concern here i s once again with procedure; the existence of an obligation to cooperate rather than the substantive p r i n c i p l e s which ought to govern apportionment, although these p r i n c i p l e s w i l l be summarized i n the following section. State practice accepts that deposits may be treated as a shared resource and rejects the notion that boundaries should be drawn so as to preserve, as far as possible, the unity 4 of the deposit. A moment's r e f l e c t i o n confirms that t h i s i s the commonsense approach. While the "unity/of deposit" view might have some f e a s i b i l i t y with respect to the delimitation of the continental shelf, i t i s impossible to conceive of an established land boundary being changed simply to accommodate such unity, and i t would hardly be sensible to have a d i f f e r e n t j u r i d i c a l regime for land and sea t e r r i t o r y . A state which abuts a "straddling reserve" may not u n i l a t e r a l l y exploit i t . The method of exploitation and the basis of apportionment must be the object of agreement between concerned states.^ There i s no single method of apportionment or exploitation which i s u n i v e r s a l l y accepted, although " u n i t i z a t i o n " , ^ generally applied i n domestic law, has received 7 increasing support i n international law. Thus the substantive law i s s t i l l i n a formative stage. The same must also be said for the procedural law, although state practice i s more consistent. 2. Why Should States Cooperate i n the E x p l o i t a t i o n of Straddling Hydrocarbon Deposits?  S e l f - i n t e r e s t and the optimum u t i l i z a t i o n of a resource are the main motivating factors for states. Where u n i t i z a t i o n i s not adopted i n municipal j u r i s d i c t i o n s ( p a r t i c u l a r l y i n the United States and Canada) the "law of capture" p r e v a i l s . Under t h i s r u l e , the courts hold that there i s no remedy i f an i n d i v i d u a l i s able to drain o i l from underneath his neighbour's property, providing that the well i s l e g a l . The only solution i s to d r i l l f i r s t and there i s every incentive to d r i l l as many wells as possible, as fast as possible. g The r e s u l t may be a gross waste of resources. By cooperating on a field-wide basis, with pressure being maintained by gas i n j e c t i o n or by water-flood, the ultimate recovery from a f i e l d can often be raised from about f i f t e e n to twenty-five per cent and occasionally up to eighty 9 per cent. Thus, i t w i l l normally p r o f i t a state to cooperate on the development of a straddling f i e l d . The exception would be where a state concludes that i t can drain the reservoir (including the portion across the border) without r e t a l i a t o r y drainage by the other state. There,is also a time/money factor because the increased production gained from secondary recovery measures such as gas i n j e c t i o n or water-flood normally requires a longer producing l i f e . Furthermore, the world shortage of hydrocarbons can be said to exert some pressure (both moral and s e l f i s h ) upon states to adopt production methods which maximize the y i e l d of the resource. This l a t t e r point i s c l e a r l y related to the growing awareness of states of the need to cooperate i n ex p l o i t i n g shared resources. This trend i s much wilder than o i l or gas f i e l d s , and w i l l be considered in d e t a i l i n a l a t e r chapter. Suffice i t to say that recent developments began at the Stockholm Conference,"'"0 and t h i s has since been continued by the United Nations General Assembly 1 1 and 12 U.N.E.P. Thus, b a s i c a l l y s e l f i s h motives, plus the global s c a r c i t y of resources, encourage states to cooperate i n the explo i t a t i o n of shared petroleum deposits. The s e l f i s h motivation requires no further explanation, and the global s c a r c i t y of resources merely exerts moral and not leg a l - 12 6 -pressure on a state to maximize the productive capacity of a deposit. 3. Procedural Obligations to Cooperate "Normally any exploratory or exp l o i t a t i v e operation i n a common deposit of o i l or gas d i r e c t l y changes conditions i n the whole deposit and always creates an immediate risk. 13 of p r e j u d i c i a l or wasteful action." To avoid t h i s , the practice of states suggests that they are prepared to accept certain procedural obligations. In each of the following circumstances (which i t i s suggested are t y p i c a l of the exploitation of any common f i e l d ) the extent to which there may be said to be an obligation upon states i n public international law, w i l l be considered. a) Is there a duty to make provision for the discovery of straddling deposits i n the delimitation of boundaries between neighbouring (or opposite) states? b) Is there a duty to exchange information concerning exploration a c t i v i t i e s i n border areas? c) Is there a duty to n o t i f y affected states of the discovery of a straddling deposit? d) Is there a duty to continue exchanging information to enable the size of the deposit to be ascertained and the extent of the straddle? e) Is there a duty to negotiate concerning exploitation methods and apportionment of the deposit? What i s the extent of t h i s duty? a. Is there a duty to make provision for the discovery of straddling deposits i n the delimitation of boundaries between neighbouring (or opposite). states? O i l deposits continue to be discovered around the world and I t i s clear that when many t e r r i t o r i a l boundaries were delimited, the p o s s i b i l i t y of subterranean hydrocarbon deposits was not even considered. The main relevance of the question i s therefore i t s application to the delimitation of continental shelves and exclusive economic zones. The extent of reserves i n these offshore regions i s not normally 14 known at the time of delimitation and therefore, one should ask whether the agreement to delimit should contain any provision regarding the future discovery of straddling deposits. Thus, our primary concern i s with recent state practice, beginning with the Truman D e c l a r a t i o n , 1 5 and reaching a period of high a c t i v i t y i n the 1960's and 1970's. 1^ 17 Lagoni argues that " i n delimitation agreements on the continental shelf i n order to provide for co-operation i n case a common deposit of l i q u i d minerals i s discovered, i n the future i s s t r i k i n g for i t s uniformity". The analysis w i l l begin, however, with a boundary delimitation i n the Ems Estuary area between West Germany and the Netherlands. Because the f r o n t i e r was uncertain i n t h i s area, the Parties were able to agree to "co-operate i n the Ems Estuary i n a 18 s p i r i t of good neighbourliness". Furthermore, the Parties agreed that such cooperation " s h a l l also extend to questions not expressly regulated i n t h i s Treaty which may arise i n - 128 -19 the Ems Estuary and which may a f f e c t common i n t e r e s t s " . The major concern of the Treaty was with matters such as navigations, f i s h e r i e s , etc., and did not concern i t s e l f with mineral deposits i n the region. However, a supplemental 20 agreement, s p e c i f i c a l l y acknowledging the duty to cooperate 21 of A r t i c l e 48 of the Ems-Dollard Treaty, regulated just such a question. A r t i c l e 4 8 of the Ems-Dollard Treaty provided a beginning, but the generality of the North Sea Continental Shelf Agreements are more detailed and s p e c i f i c a l l y allude to the problem of straddling deposits. The f i r s t agreement on shelf delimitation was also between the Netherlands and West Germany i n an area which was l a t e r to pose one of 22 the more d i f f i c u l t problems i n the North Sea. The 23 Treaty was expressed to be " i n keeping" with the supplementary agreement to the Ems-Dollard Treaty, but perhaps because of the d i f f i c u l t i e s involved, there i s no d i r e c t consideration 24 of straddling deposits. The f i r s t North Sea Treaty to made d i r e c t provision for the 25 problem was that between the United Kingdom and Norway. A r t i c l e 4 provides that: If any single geological petroleum structure or petroleum f i e l d , or any single geological structure or f i e l d of any other mineral deposit, including sand or gravel, extends across the divi d i n g l i n e and the part of such structure or f i e l d which i s situated on one side of the div i d i n g l i n e i s exploitable, wholly or i n part, from the other side of the di v i d i n g l i n e , the Contracting Parties s h a l l , i n consultation - 129 -with the licensees, i f any, seek to reach agreement as to the manner i n which the structure or f i e l d s h a l l be most e f f e c t i v e l y exploited and the manner in which the proceeds deriving therefrom s h a l l be apportioned, (emphasis added) This clause, although more detailed than others, has provided a formula for agreements of i t s type. The United Kingdom has concluded similar agreements with the Netherlands 27 and Denmark. Agreements couched i n s i m i l a r terms have also 2 8 been drawn up amongst these same Parties and others. Support for t h i s type of clause may be drawn from other 29 geographical areas, notably the Middle East. Practice i n A f r i c a i s sparse, mainly as Lagoni points out, because 30 the shelf simply has not been developed. State practice '31 32 i n Australasia and the A d r i a t i c i s i n l i n e with these general p r i n c i p l e s . Global usage, however, i s not uniform and the U.S.S.R.'s practice i s p a r t i c u l a r l y notable. The U.S.S.R. has consistently f a i l e d to include terms obliging the parties to cooperate concerning straddling deposits. This i s the case even i n agreements with states that have been i n the habit of including such terms i n t h e i r 33 agreements with other states. North American practice i s scarce since Canada and the United States have yet to agree on delimitation. One can i d e n t i f y , though, a strong practice of states to include obligations to cooperate i n delimitation agreements, - 130 -e s p e c i a l l y i n the l a s t 10-15 years. This i s c l e a r l y an essential prerequisite before one i s able to conclude that treaty practice constitutes a rule of customary international law. However, as was pointed out i n the chapter on Sources, t h i s i s not s u f f i c i e n t . While u n i v e r s a l i t y i n the sense of global practice i s not e s s e n t i a l , since law i s formed by those states p r a c t i s i n g i t , the apparent objections of the U.S.S.R. deprives the practice of c l a s s i f i c a t i o n as a norm. Neither can the r e q u i s i t e opinio J u r i s be established. It has already been pointed out that one of the main reasons that states w i l l cooperate i s for a mixture of " s e l f - i n t e r e s t and optimum u t i l i z a t i o n " . The l a t t e r may provide a moral obli g a t i o n , but one must look elsewhere for a l e g a l o b l i g a t i o n . Lagoni i s persuasive on t h i s point. He suggests that because any exploratory or e x p l o i t a t i v e d r i l l i n g w i l l a l t e r the character of the deposit, the exploiting state must cooperate to avoid i n f r i n g i n g the i n v i o l a b i l i t y of foreign t e r r i t o r i a l sovereignty and sovereign r i g h t s . S i m i l a r l y , the neighbouring state " i n order to protect i t s t e r r i t o r i a l 34 i n t e g r i t y or sovereign r i g h t s to the minerals i n place" should also cooperate. However, while one can accept a l e g a l obligation on the exploiting state, i t i s d i f f i c u l t to see a motivating factor other than s e l f - i n t e r e s t for the neighbouring state. A state can hardly be said to be under an international l e g a l obligation to preserve i t s sovereignty from the interference of another state. It would therefore ^ 131 -appear that Lagoni f a i l s to e s t a b l i s h the "opinio j u r i s sine n e c e s s i t a t i s " . One must therefore look to a more general p r i n c i p l e of t r a n s f r o n t i e r cooperation which w i l l be developed in a l a t e r chapter. In conclusion, therefore, one can only i d e n t i f y a developing norm, rather than an established rule of customary international law. b. Is there a duty to exchange information concerning exploration a c t i v i t i e s ? The p r i n c i p l e that any exploratory or e x p l o i t a t i v e d r i l l i n g in a straddling deposit can change the character of the f i e l d to the detriment of the neighbouring state once again forms the s t a r t i n g point. This factor, plus lack of information about deposits, might persuade states and licensees to cooperate i n order that the most e f f e c t i v e exploration program possible be devised and undertaken. Judge Jessup lent support for t h i s view, when he stated i n the North Sea Continental Shelf Case that " c l e a r l y , the p r i n c i p l e of cooperation applies to the stage of exploration as well as that of e x p l o i t a t i o n and there i s nothing to prevent the parties, i n t h e i r negotiations, pending f i n a l delimitations, from agreeing upon, for example, j o i n t l i c e n s i n g of a consortium which, under appropriate safeguards concerning future e x p l o i t a t i o n , might undertake the r e q u i s i t e wildcat 35 operations". However, state practice on the question -. 132 -of exploration, unlike that on either exploitation or the so-called duty to include "cooperation clauses" i n agreements delimiting shelf boundaries, i s sparse. Once again treaty practice provides the main source of state usage. Some states have attempted to deal with the problem by minimizing i t , or have dealt with i t only i n d i r e c t l y . The prime example of an attempt to minimize the problem can be found i n Iran's conduct. Iran has followed a practice of concluding agreements with other Middle Eastern countries forbidding a l l d r i l l i n g , exploratory and e x p l o i t a t i v e , within a certain distance of the f r o n t i e r . C h a r a c t e r i s t i c i s A r t i c l e 4 of the agreement between Iran 3 6 and Saudi Arabia. This provides that "no d r i l l i n g operations s h a l l be conducted... within a zone extending 500 metres" from either side of the boundary l i n e . These "security zones" however, do not solve the problem of common deposits because they may be exploited from a distance greater than 5 00 metres from the common boundary. Indirect attempts to deal with the problem include agreements to cooperate concerning the positioning of wells i n border areas. The main raison d'etre of t h i s i s not to ensure the most e f f i c i e n t exploration of the f i e l d , but to prevent any erosion of sovereign r i g h t s . The provision usually takes the form of an agreement to solve a dispute a r i s i n g - 13 3 -from the position of wells. The Italy-Yugoslavia Agreement i s representative: If a dispute arises over the position of any i n s t a l l a t i o n or equipment i n reference to the l i n e of d elimitation... the competent Authorities of the Contracting Parties s h a l l determine by mutual consent, i n which part of the continental shelf such i n s t a l l a t i o n s or equipment are located. 37 Although t h i s could be interpreted as extending to exploration a c t i v i t i e s , the main emphasis of t h i s treaty (and others 3 8 l i k e i t ) i s on e x p l o i t a t i o n , so i t s authority i s doubtful. Direct attempts to deal with the problem are rare and appear to be limited to two t r e a t i e s providing for cooperation i n non-maritime border regions. The most e x p l i c i t i s the series of two agreements between Austria and Czechoslovakia concluded i n January 1960. One provides for . 39 geological cooperation, and the other for cooperation 4 0 concerning the working of common deposits of hydrocarbons. Geological cooperation i s defined to include the "co-ordination 41 of geological prospecting i n the f r o n t i e r areas". There 42 i s provision for an annual meeting to promote coordination. Although the emphasis of the Agreement on shared deposits i s on exploitation, the Parties have a duty "to keep each other informed of newly acquired data concerning each 43 Individual deposit". This can c l e a r l y extend to an exchange of information upon exploration a c t i v i t i e s . The u t i l i t y of cooperation i n prospecting i s also recognized 44 In the Ems-Dollard Supplementary Agreement. Although . - 134 -prospecting i s , according to A r t i c l e 6, carr i e d on by the separate concessionaires on either side of the border, A r t i c l e 7 mandates each to "co-operate c l o s e l y with those of the other side i n prospecting and extracting. To t h i s end they s h a l l exchange a l l plans for operations i n the f r o n t i e r area and reports on the re s u l t s of such operations." On the whole, though, parties have not included provisions requiring cooperation on prospecting. One may speculate that t h i s i s because most prospecting i s carried out by private firms under licence. The government's main int e r e s t i s maximizing revenues and thi s focuses attention on the exploitation stage as governments attempt to ensure that the resource i s not wasted. Thus an obligation to cooperate at the exploratory stage i s far from being recognized as a norm of international law, although some have recognized the value of concerted action. c. Is there a duty to n o t i f y affected states of the discovery of a straddling deposit? Although i t was not found possible to es t a b l i s h a l e g a l obligation to make provision for the discovery of straddling deposits i n delimitation agreements, i t was clear that states generally followed such a practice. An agreement to agree on the method of exp l o i t i n g a straddling deposit c l e a r l y assumes that both parties w i l l receive knowledge of the deposit i n the future. Very few agreements though - 135 -provide that the discovery of a straddling deposit be n o t i f i e d to affected states. After considering these few agreements, we w i l l consider the extent to which the obligation may be implied. Land-based t r e a t i e s again provide the greatest d e t a i l . A r t i c l e 7 of the Ems-Dollard Supplementary Agreement, as well as providing for cooperation i n exploration of the f r o n t i e r area, requires concessionaires to exchange reports 45 on the r e s u l t s of t h e i r operations. There i s no s p e c i f i c provision i n the Czechoslovakia-Austria Agreement concerned with straddling hydrocarbon deposits, but the agreement for geological cooperation provides for the exchange of geological records on request ( A r t i c l e 3), and at the annual meeting, reports are to be given of the previous year's 46 prospecting ( A r t i c l e 2). E f f e c t i v e l y , therefore, the obligation to report on the year's work plus the duty to give documentation on request, requires each state to n o t i f y the other of a straddling deposit discovery. This view i s reinforced by A r t i c l e 5 of the same Treaty: If there are indications of the presence of useful minerals, or i f a deposit of a useful raw material i s discovered, within a f r o n t i e r zone three kilometres wide on either side of the state f r o n t i e r , the competent authorities of the two Contracting Parties s h a l l exchange the geological findings made on the subject i n the course of prospecting and each of them s h a l l so far as possible meet the request of the other Party for the communication of relevant information. - 136 -By contrast, none of the shelf delimitation agreements make s p e c i f i c provision for n o t i f i c a t i o n , but such an obligation can be implied to varying extents. Both the 47 48 Germany-Netherlands and the Germany-Denmark delimitations provide for an a r b i t r a t i o n procedure i n the case of discovery of stradding deposits, which c l e a r l y requires knowledge of the discovery. The clause provides that: If one of the Contracting Parties proves the presence of minerals i n or on the continental shelf and the other Contracting Party i s of the opinion that t h i s d e f i n i t e presence extends to i t s part of the continental shelf, the l a t t e r may then inform the former of t h i s , accompanied by data on which the l a t t e r bases i t s judgment. 4 9 Clearly implied i s the fact that the neighbouring state knows that -the presence of minerals has been proved. The standard (U.K.-Norway type) agreement also implies notice since i t requires contracting parties to seek to reach agreement on the exploitation and apportionment of 50 the straddling deposit. Several b i l a t e r a l agreements, however, provide for much closer cooperation at a l l stages of exploration and exploitation, thus e f f e c t i v e l y removing the need for 51 n o t i f i c a t i o n s . The Annex to the Franco-Spanish Agreement provides that the Contracting Parties s h a l l encourage agreement between companies applying for licences i n t h e i r 52 respective sectors of the common zone. In practice, - 137 -the work i s carr i e d out by a single operator acting for both sides. An even clearer example of the avoidance of the need for 53 delimitation i s the "functionally limited condominium" 54 concluded by Sudan and Saudi Arabia. This Agreement established a common zone ( A r t i c l e V) and a Joint Commission to undertake exploratory and exp l o i t a t i v e studies, to decide upon the applications for licences and to supervise exploitation. Because each Contracting Party has equal representation, they would receive automatic notice of 55 deposits within the common zone. The following points about state practice may be made: i) I t i s rare for states to make d i r e c t provision for n o t i f i c a t i o n of the existence of a common deposit. i i ) An obligation to n o t i f y can often be implied from a duty to seek to reach agreement on the exploitation of a discovered common deposit. i i i ) The question may be avoided by providing for common exploration and expl o i t a t i o n i n a region i n which two governments declare themselves to have "equal sovereign 56 rights i n a l l the natural resources" of such a zone. - 138 -Although perhaps i t i s possible to i d e n t i f y an emerging rule of law here, at present state practice i s not s u f f i c i e n t l y e x p l i c i t or consistent to assert that there e x i s t s a norm of international law despite i t s apparent value. d. Is there a duty to continue exchanging information to enable the size of the deposit to be ascertained and the extent of the straddle? As one progresses from sh e l f - d e l i m i t a t i o n through exploration and discovery of common deposits, towards the actual exploitation of the deposit, state practice becomes sparser and one i s faced not merely with a developing r u l e , but also with a developing practice. This i s because the exp l o i t a t i o n has not begun i n a l l the delimited shelves. I n i t i a l prospecting may only reveal scanty information about the size and extent of the deposit. As exploration continues and exploitation begins, further information becomes available which may revise e a r l i e r estimates and even outdate previous agreements. In p a r t i c u l a r , states often apportion the deposit according to the extent of the basin underlying t h e i r t e r r i t o r y . If there i s a revised estimate of basin s i z e , or i f another f i e l d i s found to be flowing into the straddling deposit, the basis of the i n i t i a l c a l c u l a t i o n may be v i t i a t e d . Consequently, i t w i l l be i n the. i n t e r e s t of the affected states to continue exchanging information. The rationale of the free exchange of information leading to the optimum u t i l i z a t i o n of the deposit also remains v a l i d . - 139 -There i s c l e a r l y some overlap between t h i s section and the previous section, p a r t i c u l a r l y the categories ( i i ) and ( i i i ) which were i d e n t i f i e d i n the conclusion. The continuing nature of cooperation i n a l l stages of the exploration and exploitation i n both situations ensures that information w i l l continue to be available upon the extent of the deposit. Beyond the rather special arrangements of (i) and ( i i ) , state practice favours an "agreement to agree" upon methods of e x p l o i t a t i o n and apportionment. In circumstances where such a b i l a t e r a l agreement has been concluded (and perhaps even where there i s no s p e c i f i c agreement) once n o t i f i c a t i o n of a straddling deposit has been received, the states are under a duty to negotiate. The extent of t h i s duty to negotiate w i l l be considered l a t e r ; s u f f i c e i t to say that the agreements that are concluded are very detailed and require cooperation on a number of issues ranging from 57 safety to an exchange of information. At t h i s time, however, there are so few agreements that i t i s not possible to do more than outline the steps states are l i k e l y to take. The Anglo-Norwegian Agreement on the Frigg Gas F i e l d d e t a i l s many matters on which the Parties should continue to exchange information. A r t i c l e 2(2) provides that the governments should consult with a view to establishing, an - 140 -agreed determination of the reserves of the Frigg Reservoir and t h e i r apportionment. The licensees are required to provide information for t h i s purpose. A r t i c l e 3 goes on to provide for the regular review of the state of the reservoir plus further review "at any other time when naturally occurring gas-bearing reservoirs are proved to contain gas which was capable of flowing into the Frigg F i e l d Reservoir at the star t of production". The aim of the Agreement i s to tre a t the f i e l d as a single unit i n order to maximize the y i e l d . Woodliffe concludes his a r t i c l e on the Agreement with the observation that "there i s l i t t l e doubt that the Frigg Agreement w i l l provide the model for future u n i t i s a t i o n agreements i n the North Sea 5 8 area and i n offshore petroleum provinces elsewhere". More generally phrased, however, i s the Austro-Czech Agreement 59 concerning common deposits of gas and petroleum. The Agreement was stimulated by the discovery of the Vysoka-Zwerndorf f i e l d , but i t i s stated to apply to the discovery of any common workable deposit. Upon discovery, the parties 6 0 are obliged to exchange information and to attempt to 61 have the common deposit outlined within a "fixed period". A mixed commission i s given the duty of c a l c u l a t i n g the 6 2 reserve si z e , but under A r t i c l e 4(2) the Parties are obliged: to keep each other informed of newly acquired data concerning each i n d i v i d u a l deposit and s h a l l , i n p a r t i c u l a r , immediately inform each other of the emergence of any special - 141 -circumstances requiring instant action, for example abnormal water encroachment i n places or throughout the deposit, or of circumstances which may a f f e c t the ca l c u l a t i o n of reserves in the deposit. A r t i c l e 6 goes on to provide that the Parties s h a l l exchange information at least every six months on the state of the deposit and previous output. Thus, as a r e f l e c t i o n of the economic value of cooperation, the Treaty imposes considerable obligations on the Parties. The Treaty i t s e l f provides the main means for cooperation. The Frigg F i e l d Case has a d i f f e r e n t emphasis because although some obligations to exchange information are imposed d i r e c t l y upon the Contracting Parties, the primary obligations of the respective governments i s to "require those who are i t s licensees... to enter into agreements between themselves and the licensees... of the other government to regulate... 6 3 e x p l o i t a t i o n " . A Unit Operator i s then appointed by agreement between the two licensees, subject to the approval 64 of the two governments. In essence though, both Agreements simply use d i f f e r e n t methods to ensure that ex p l o i t a t i o n w i l l benefit from the continued exchange of information. Midway between these two Agreements i s the Ems-Dollard Supplementary Agreement which provides that the concessionaires 65 on either side w i l l cooperate cl o s e l y with each other, but without establishing a single operator. S p e c i f i c a l l y , the concessionaires should seek to reach agreement upon matters such as ca l c u l a t i o n of the reserves and output. - 142 -Fai l u r e to rea,ch agreement within a reasonable time might r e s u l t i n the Parties presenting a j o i n t proposal to the 66 concessionaires. From t h i s b r i e f consideration of as few as three Treaties, the most that i t i s possible to say i s that such agreements that have been concluded s p e c i f i c a l l y on the exploitation of and production from straddling deposits, provide detailed provisions for continuing cooperation and exchange of information. In view of the advantages that accrue to states from such cooperation, i t i s l i k e l y that t h i s precedent w i l l be followed. e. Is there a duty to negotiate concerning ex p l o i t a t i o n methods and apportionment of the deposit? What i s the extent of thi s duty? It was concluded e a r l i e r that state practice favoured an obligation upon states to make provision for the future discovery of shared deposits. Here the concern i s with the obligation to negotiate.concerning exploitation and apportionment i f a straddling deposit i s discovered. The impetus to negotiate upon t h i s question i s great since the problem has been transformed from a potential to an actual one. The evidence which may es t a b l i s h an obligation i s b a s i c a l l y the same as that considered under (a), for the general practice, i t w i l l be remembered, was to include a clause providing that the parties should reach agreement on the method of apportionment and exploitation of the shared resource. E s s e n t i a l l y the same conclusion would be reached, although perhaps the "non-legal" imperative to cooperate may be stronger, since there i s a more urgent and evident need for cooperation to maximize exp l o i t a t i o n . In l i g h t of t h i s , i t i s intended to concentrate i n t h i s section upon what would be entailed if_ such a duty to negotiate were recognized i n the near future, that i s to say, what would be the l i k e l y extent of such a duty and the consequences of possible f a i l u r e to comply. Mr. Onorato d i f f e r s from the above conclusion and states that there is_ an "obligation upon interested states to enter into negotiations with a view towards concluding... 6 7 agreements". No authority for t h i s proposition however i s given, other than " p a r a l l e l s i t u a t i o n s " . Exactly what i s meant by t h i s phrase i s not clear. Onorato then continues to b u i l d on t h i s assumption by the bootstrap technique to reach the astonishing conlusion that "exploitation. must be by mutual agreement"^ as should apportionment.^^ Thus, although i t i s not altogether clear, Onorato appears to be stating that there i s an o b l i g a t i o n to negotiate, that t h i s extends to an obligation to reach agreement, and that no exploitation can take place i n the absence of an agreement on exploitation and apportionment between affected states. - 144 -Although the analysis proposed here even r e j e c t s the view that there i s an obligation to negotiate, i t i s recognized that state practice does favour negotiation. However, no authority whatsoever can be found for Onorato's second and t h i r d propositions. Where international law recognizes a duty to negotiate, whether derived from general customary law or a s p e c i f i c Treaty provision, the extent of that obligation i s much more limited than Onorato asserts. The Permanent Court i n the Railway T r a f f i c Case between Lithuania and Poland concluded that an obligation to negotiate involved an obligation to negotiate i n good f a i t h , with the aim of reaching agreement, but did not involve an 7 0 obligation to actually reach agreement. This view i s to be preferred because i t prevents one state holding out and forcing the other party to compromise. The o b l i g a t i o n to negotiate i n good f a i t h i s a vague one which w i l l vary with the p a r t i c u l a r circumstances of the case, but Lagoni asserts that "any p r e j u d i c i a l or wasteful exploration or exploitation that contravenes the interests of a state sharing the deposit must be regarded as being contrary to good f a i t h " . As i t stands, Lagoni 1s statement i s very strong, since any exploration or exploitation creates an immediate r i s k of p r e j u d i c i a l or wasteful action, and thus, Lagoni may be interpreted as supporting Onorato 1s extreme contention that there can be no exploitation without agreement. The v a l i d i t y of such a proposition must be extremely doubtful, - 145 -since i t permits to one state a v i r t u a l power of veto over other affected states and as such, represents a very considerable incursion on sovereignty. Consequently, the modified view that any exploitation should be carr i e d out under optimum conditions i s to be preferred. Some states have made special provision for e x p l o i t a t i o n without agreement. A r t i c l e 4(2) of the Franco-Spanish Agreement i n the Bay of Biscay provides that In the event of the natural resources of a deposit situated on both sides of the boundary l i n e of the continental shelf already having been exploited, the Contracting Parties should, in consultation with the licensees, i f any, seek to reach agreement on appropriate compensation. 72 The basis for compensation i s not made cl e a r , but i t i s l i k e l y that i t would be based on the c r i t e r i a for apportionment. This l a t t e r however, varies tremendously, some states 7 3 agreeing on equitable apportionment and others on a l l o c a t i o n in proportion to the amount of the reservoir on each side 74 of the boundary. Although t h i s practice i s not developed, i t does suggest that some exploitation may take place i n the absence of agreement, and that the appropriate remedy i s compensation. It would therefore appear that Onorato 1s basic assumptions cannot be supported by authority. To conclude, i t can be said that although there i s a developing state practice, there i s , as yet, no duty on affected states to negotiate concerning e x p l o i t a t i o n and apportionment of straddling deposits. Where the duty to negotiate does - 146 -e x i s t as a r e s u l t of b i l a t e r a l agreements, the duty i s limited to a duty to negotiate i n good f a i t h . I t does not extend to an obligation to reach agreement. Optimum exploitation of a deposit by one party i s permitted i n the absence of agreement, but i t i s probably subject to a duty to compensate affected states on the basis of c r i t e r i a to be determined by the p a r t i e s . 4. Conclusion State practice has developed rapidly on the exploration, discovery and exploitation of straddling common petroleum deposits. Such practice i s p a r t i c u l a r l y intense on the issues of s h e l f - d e l i m i t a t i o n , and agreements to agree on the future e x p l o i t a t i o n of potential deposits. State practice on the question of actual exploitation and apportionment of reserves i s sparse but w i l l soon develop. Five questions were posed, and i t proved impossible to e s t a b l i s h a clear rule of i n t e r n a t i o n a l law i n any of the situations. However, one can suggest that i n some areas state practice i s very strong and a rule appears to be emerging. In p a r t i c u l a r , state practice on the question of making provision for the discovery of straddling deposits i n the delimitation of boundaries was almost unanimous. Because the substance of such practice was to oblige states to negotiate, i t i s possible to say that the practice of states suggests that they should negotiate concerning the methods of exploitation and apportionment of deposits. Surprisingly there was l i t t l e state practice either on the question of cooperation concerning exploration or the n o t i f i c a t i o n of discovery of straddling deposits, although both were implied i n some cases. State practice was sparse, but unanimous, i n favouring the continuing exchange of information as the exp l o i t a t i o n of shared f i e l d s takes place. - 148 -FOOTNOTES 1. The speed with which p r i n c i p l e s are developed does not necessarily preclude them from being given the force of law. North Sea Continental Shelf, ICJ Reports, 1969, 3, 43. 2. W. T. Onorato, Apportionment of an International Common  Petroleum Deposit, 17 I.C.L.Q. 85, at 85 (1968). 3. W. T. Onorato, Apportionment of an International Common  Petroleum Deposit, 26 I.C.L.Q. 324, at 324 (1979). 4. Ibid., at 325. 5. Although Onorato (ibid.) supports such a proposition, i t s v a l i d i t y must be regarded as doubtful, for i f i t were accepted, one state might be able to prevent any exploitation of the resource. Lack of agreement a f t e r good f a i t h negotiations, ought not to prevent a state exploiting what can reasonably be considered to be i t s share. See the analagous s i t u a t i o n of consent to a proposed u t i l i z a t i o n of an international r i v e r : C.B. Bourne, The Right to U t i l i z e the Waters of International  Rivers, 3 Can.Y.B. of International Law 87, 190 (1965). 6. U t i l i z a t i o n may be defined as the j o i n t working and development of a petroleum f i e l d by a l l persons holding licenc e s , thus eliminating unnecessary and competitive d r i l l i n g . 7. For exceptions, see R. Lagoni, O i l and Gas Deposits Across  National Frontiers 73, A.J.I.L. 215 at 222-229 (1979). Lagoni recognizes four d i f f e r e n t kinds of cooperation agreements i n present state pr a c t i c e . Lagoni's review i s much more thorough than that of Onorato 1s, and he concludes that " i t appears that as yet there i s no consensus i n international law about the applicable rule for common deposits of l i q u i d minerals in the absence of an agreement." (at 221) 8. A. E. Utton, I n s t i t u t i o n a l Arrangements for Developing  North Sea O i l and Gas, 9 V i r g i n i a J n l . of I n t ' l Law 66, 70 (1968) . 9. Ibid, at 71-72. 10. See for example, Recommendations 32, 37, 38 and 51 of the Action Plan of the United Nations Conference on the Human Environment, Stockholm, 5-16 June 1972. A/Conf.4 8/14/Rev.1. -'149 -11. Charter of Economic Rights and Duties of States, G.A. Res.3281 (XXIX), 12 December 1974, 29 U.N. G.A.O.R. Supp. (No.31) 50, and G.A. Res. 2995 (XXVII) 2996 (XXVII) and 3129 (XXVIII).. 12. c f . Draft decision of UNEP on Cooperation i n the f i e l d of the environment concerning natural resources shared by two or more states, May 19, 1978. Reprinted i n 17 I.L.M. 1091 (1978) and Appendix. 13. Lagoni, supra, n.7 at 242-243. 14. Such information was c e r t a i n l y not available when the United Kingdom, the Netherlands, Denmark and Norway divided up the North Sea, using the p r i n c i p l e of equidistance of A r t i c l e 6 of the Geneva Convention on the Continental Shelf (Geneva, 29 A p r i l 1958 (1958) U.N.T.S. 6465) i n the early I960's. This may help explain the speed with which delimitation was accomplished. For an analysis see P. Birnie and C. Mason, O i l and Gas: The International  Regime, i n Mason (ed.) The E f f e c t i v e Management of Resources 19-52 (.1979) . 15. Truman Proclamation on the Continental Shelf, September 28, 1945, 4 Whiteman Digest of International Law 756 (1965).. 16. E s p e c i a l l y i n the North Sea and the Middle East. 17. Lagoni, supra, n.7 at 229. 18. Treaty between the Kingdom of the Netherlands and the Federal Republic of Germany concerning arrangements for cooperation i n the Ems Estuary, The Hague, 8 A p r i l 1960 (1964) U.N.T.S. 7404, A r t i c l e 1. 19. Ibid., A r t i c l e 48. 20. Supplementary Agreement to the Ems-Dollard Treaty, Bennekom, 14 May 1962 (1964) U.N.T.S. 140. 21. Ibid., Preamble, d e t a i l s of the Treaty w i l l be considered l a t e r . 22. Later leading to the North Sea Continental Shelf Case concerning the method of de l i m i t a t i o n , supra, n . l . 23. Treaty between Netherlands and West Germany concerning the l a t e r a l delimitation of the continental shelf, Preamble, Bonn, 1 December 1964, U.N.T.S. 550 (1964). - 150 -24. This view receives support from the practice of both states i n r e l a t i o n to other North Sea delimitation agreements, and similar problems leading to an i d e n t i c a l r e s u l t i n the l a t e r West Germany-Denmark Treaty, U.N.T.S. 8289 (1965). Both Agreements were of limited scope and simply drew l i n e s about 30 miles long straight out from the coast. See Bir n i e and Mason, supra, n.14 at 36. 25. Norway-United Kingdom, Agreement Relating to the Delimitation of the Continental Shelf between the two Countries, London, 10 March 1965, U.N.T.S. 8043 (.1965). 26. Netherlands-United Kingdom Agreement, A r t i c l e 3, London, 6 October 1965, U.N.T.S. 8616 (1967). This was not very detailed because another Agreement was concluded the same day " r e l a t i n g to the exploitation of single geological structures extending across the d i v i d i n g l i n e on the continental shelf", U.N.T.S. 8615 (1967). 27. Denmark- U.K. Agreement, A r t i c l e 4, London, 6 February 1967, U.N.T.S. 8574 (1967). 28. Denmark-Norway Agreement, A r t i c l e 4, Oslo, 8 December 1965, U.N.T.S. 9052 (1968). Norway-Sweden Agreement, A r t i c l e 4, Stockholm, 24 July 1968, i n Oda, The International Law of the Ocean Development, at 391 (1972), (hereafter Oda); West Germany-Denmark Agreement, ARticle 2, Copenhagen, 28 January 1971, 10 I.L.M. 603 (1971); West Germany-Netherlands, A r t i c l e 2, Copenhagen, 28 January 1971, 10 I.L.M. 607 (1971). 29. For example see Iran-Qator Agreement, A r t i c l e 2(b), Doha Qator, 20 September 1967, Oda, i b i d , at 417. In a thorough survey Lagoni, supra, n.7 at 2 30, concludes that "every delimitation agreement concluded since 1969 on the Persian Gulf and the Red Sea provides for cooperation in case of common deposits". Iran also makes some provision precluding " d i r e c t i o n a l d r i l l i n g " , A r t i c l e 2(a). 30. Lagoni, supra, n.7 at 232-233. 31. Indonesia-Malaysia Agreement, A r t i c l e IV, Kuala Lumpur, 27 October 1969, Oda, supra, n.28 at 424; Australia-Indonesia Agreement, A r t i c l e 7, Canberra, 18 May 1971, Oda, i b i d , at 4 26; Indonesia-Malaysia-Thailand Agreement, A r t i c l e 3, Kuala Lumpur, 21 December 1971, Oda, i b i d , at 428. 32. Italy-Yugoslavia Agreement, A r t i c l e 2, Rome, 8 January 1969, 7 I.L.M. 547 (1968) . - 151 -33. For example, Norway-U.S.S.R. Agreement r e l a t i n g to the d i v i s i o n of the Continental Shelf In the Varangefjord, Oslo, 15 February 1957. English text printed i n the U.S. State Department, International Boundary Study, Series A - Limits i n the Seas, No. 17 (May 27, 1970); Finland-U.S.S.R. Agreement, He l s i n k i , 20 May 1965, Oda, supra, n.28 at 406. 34. Lagoni, supra, n.7 at 235. 35. Supra, n . l at 83. 36. Iran-Saudi Arabia Agreement, Teheran, 24 October 1968, Oda, supra, n.28 at 415. 37. Italy-Yugoslavia Agreement, A r t i c l e 3, Rome, 8 January 1968 , 7 I.L.M. 547 (1968) . 38. It a l y - T u n i s i a Agreement, A r t i c l e 5, Tunis, 20 August 1971, reported i n C h u r c h i l l , Nordquist,Lay, New Directions i n the Law of the Sea (hereafter Churchill) at 247 ; Netherlands-Denmark Agreement, A r t i c l e 2(2), Hague, 31 March 1966, Oda, supra, n.28 at 395. 39. Czechoslovakia-Austria Agreement Concerning the P r i n c i p l e s of Geological Cooperation, Prague, 23 January 1960, U.N.T.S. 7241 (1964). 40. Czechoslovakia-Austria Agreement Concerning the Working of Common Deposits of Natural Gas and Petroleum, Prague, 23 January 1960, U.N.T.S. 7242 (1964). 41. Supra, n.39, A r t i c l e 1. 42. Ibid., A r t i c l e 2. 43. Supra, n.40, A r t i c l e 4(2) • 44. Supra, n.20. 45. Ibid. 46. Supra, n.39. 47. Supra, n.28. 48. Supra, n.28. 49. Supra, n.28, Netherlands-Germany, A r t i c l e 2. 50. U.K.-Norway delimi t a t i o n , clauses c i t e d at n.25-28 supra, n.25, and other i n c l u s i v e . - 152 -51. France-Spain Delimitation of the Continental Shelf i n the Bay of Biscay, Paris, January 29, 1974, C h u r c h i l l , supra, n.38 at 251. 52. Defined i n A r t i c l e 3, i b i d . 53. The phrase i s Lagoni's, supra, n.7 at 228-9. 54. Sudan-Saudi Arabia Agreement r e l a t i n g to the j o i n t e x ploitation of the natural resources of the Sea Bed and subsoil of the Red Sea i n the Common Zone, Khartoum, May 16, 1974, C h u r c h i l l , supra, n.38 at 313. 55. Several other Middle Eastern b i l a t e r a l agreements provide s i m i l a r l y . See Lagoni, supra, n.7 at 227 for c i t a t i o n s , and support for t h i s from Jessup, i n the Continental Shelf  Case, supra, n . l at 82 and opinion of the Court at 52. 56. Sudan-Saudi Arabia Agreement, A r t i c l e V, supra, n.54. 57. For a detailed analysis of such an agreement, see J. C. Woodliffe, International U n i t i z a t i o n of an Offshore Gas  F i e l d , 26 I.C.L.Q. 338 (1977) considering the Frigg Gas F i e l d Agreement i n the North Sea between the U.K. and Norway, London, May 10, 1976, C h u r c h i l l , supra, n.38 at 398. 58. Ibid, at 353. 59. Supra, n.40. 60. Supra, n.39, A r t i c l e s 6 and 7. 61. Supra, n.40, A r t i c l e 1. 62. Supra, n.40, A r t i c l e 2(2). 63. Supra, n.57, A r t i c l e 1(.2). 64. Ibid. A r t i c l e 5. v 65. Supra, n.20. A r t i c l e 7. 66. Ibid. A r t i c l e 8. 67. Supra, n.3 at 329. 68. Ibid., emphasis supplied. 69. Ibid, at 330. 70. [1931] P.C.I.J., ser.A/B, No.42, at 108,116. This view receives strong support from textbook writers, e.g. O'Connell, International Law (1970) at 107 7, and the Lac Lanoux  A r b i t r a t i o n , 24 I.L.R. 101, 130 (1959). - 153 -71. Supra, n.7 at 235. 72. Supra, n.51. See also the Italy-Spain Agreement, A r t i c l e 2(2), Madrid, February 19, 1974, C h u r c h i l l , supra, n.38 at 261 for an i d e n t i c a l provision. S l i g h t l y d i f f e r e n t i s the I t a l y - T u n i s i a Agreement, Tunis, August 20, 1971, i b i d , at 247, which provides that pending the conclusion of an agreement on exploitation "each Party s h a l l ensure that exploitation i s carried out under optimum conditions in accordance with the technical r u l e s " . 73. For example, Australia-Indonesia, supra, n.31, A r t i c l e 7. 74. Germany-Denmark, supra, n.28, A r t i c l e 2(1). This A r t i c l e also provides for compensation on the same basis i f e x p l o i t a t i o n has already taken place. - 154 -THE WORK OF UNEP ON SHARED RESOURCES  1. Introduction UNEP1 was"formed following the Stockholm Conference on the Human Environment, 1972, i n recognition of the fact that "problems of the environment constitute a new and important area for international co-operation, and that the complexity 2 and interdependence of such problems require new approaches". UNEP has consistently taken a broad view of the meaning of the term "environment", with the consequence that i t has been overloaded with work, and has had to develop a table of p r i o r i t i e s . While UNEP does not consider i t s e l f to have any formal mandate for the development of international 3 environmental law i t has granted some p r i o r i t y to the problem of shared resources because i t was requested to take up the question by the Twenty-Eighth Session of the General 4 Assembly. This Resolution e n t i t l e d "Co-operation i n the f i e l d of the environment concerning natural resources shared by two or more States", r e c a l l e d P r i n c i p l e s 21, 22 and 24 of the Stockholm Declaration, and various Resolutions of 5 the General Assembly concerning the Stockholm Conference. The operative part of the Resolution reads as follows: (The General Assembly) 1. Considers that i t i s necesary to ensure e f f e c t i v e co-operation between countries through the establishment of adequate inte r n a t i o n a l standards for the conservation and harmonious exploitation of natural resources common to two or more States in the context of the normal re l a t i o n s e x i s t i n g between them; - 155 -2. Considers further that co-operation between countries sharing such natural resources and interested i n th e i r e x p l o i t a t i o n must be developed on the basis of a system of information and p r i o r consultation within the framework of the normal re l a t i o n s e x i s t i n g between them; 3. Requests the Governing Council of the United Nations Environment Programme, i n keeping with i t s function of promoting international co-operation according to the mandate conferred upon i t by the General Assembly, to take duly into account the preceding paragraphs and to report on measures adopted for t h e i r implementation; 4. Urges Member States, within the framework of th e i r mutual relations to take f u l l y into account the provisions of the present resolution. The Governing Council of UNEP therefore requested i t s Executive Director to prepare a study and make proposals for implementing the provisions of Resolution 3129(XXVIII) to be submitted to the Council and then the General Assembly. The Director's Report was based upon the views of states and international organizations of Resolution 3129 (XXVII), t h e i r experience of matters dealt with i n the Resolution, 7 and a consideration of relevant a u t h o r i t i e s . The response rate to the Director's; General note verbale was not high. By February 1975, only seventeen governments and ten international organizations had re p l i e d , and they presented g very diverse views. A substantial part of the responses and the Report deals with co-operative arrangements i n r i v e r basins since t h i s i s the area i n which international law i s the most developed. Once again, the Brazil-Argentine - 156 -dispute over the Parana River came to the fore and c l e a r l y coloured the responses of the two states.. B r a z i l took the extreme and superceded position that shared natural resources "are those in respect of which sovereignty i s shared between States", Thus only contiguous and not successive r i v e r s would f a l l within Resolution 3129(XXVITI), 9 S i m i l a r l y , Argentina took an extreme yiew of a state*s duty when contemplating a c t i v i t i e s which- w i l l cause s i g n i f i c a n t damage to the environment of another state sharing the same resource. Argentina's representative argued that "the intended a c t i v i t y s h a l l not be undertaken without the express p r i o r consent of the State or States whose environment w i l l be s i g n i f i c a n t l y a f f e c t e d " . 1 0 As well as B r a z i l ' s dissent over the meaning of na,tural resources shared by two or more states, there was a difference in opinion as to whether the term incorporated resources of the international commons such as the atmosphere of the earth and the resources of the sea and sea^bed. The general f e e l i n g of states was that while l i t e r a l l y the term did include such. resources, the emphasis of UNEP should be on resources shared by a limited number of s t a t e s . 1 1 The Executive Director 12 noted t h i s view m his Report, but stated that the emphasis "should not exclude dealing with p o t e n t i a l l y s i g n i f i c a n t threats to the commons". He thought that while there was no suitable generic term to describe such natural resources, several examples could be i d e n t i f i e d : - 157 -a) An international water system, including both surface and ground waters; b) An air-shed or a i r mass above the t e r r i t o r i e s of a limited number of States; c) Enclosed or semi-enclosed seas and adjacent coastal waters; d) Migratory species which move between the waters or t e r r i t o r i e s of several States; e) A special ecosystem spanning the f r o n t i e r s between two or more States, such as a series of mountains, forests or areas of special conservation nature. 13 The Executive Director also highlighted various; other important points which could be e l i c i t e d from the responses. These included the d e f i n i t i o n of information and consultation, the need for b i l a t e r a l or m u l t i l a t e r a l t r e a t i e s and i n s t i t u t i o n s , and the dra f t i n g of a code of conduct for 14 states. Acting on his Recommendations, the Governing Council of UNEP at i t s t h i r d session, created an intergovernmental working group of experts "to draft p r i n c i p l e s of conduct for the guidance of states i n the conservation and harmonious exploitation of natural resources shared by two or more 15 . • states". The Working Group has since held f i v e sessions 16 and concluded a series of f i f t e e n d raft p r i n c i p l e s . The pr i n c i p l e s dealing with procedural questions w i l l be discussed in d e t a i l a f t e r a consideration of the le g a l status of the Draft. 2. The Legal Status of the P r i n c i p l e s The Executive: Director of UNEP. recognized, that P r i n c i p l e s 21, 22 and 24 of the Stockholm Conference were the d i r e c t antecedents of General Assembly Resolution 3129. He suggests that the P r i n c i p l e s were predicated "on the t r i p a r t i t e concept 17 of sovereignty, r e s p o n s i b i l i t y and co-operation" and, to the extent that these Stockholm P r i n c i p l e s have been accepted as general customary international law, i t i s suggested that the P r i n c i p l e s of the Code of Conduct which may be said to derive d i r e c t l y from the Stockholm P r i n c i p l e s , may also have the force of customary international law. Although P r i n c i p l e s 21 and 22 were probably the most important product of the Conference, P r i n c i p l e 24, with i t s emphasis on procedural obligations to cooperate, merits serious attention. Also worthy of consideration i n an attempt to estab.li.Srh the extent to which the Code of Conduct represents international '18 law, i s General Assembly Resolution 2995 (XXVII),: and A r t i c l e s 3 and 3 0 of the Charter of Economic Rights and Duties of 19 States, as well as "numerous other legal instruments and 20 conventions". Before entering into s p e c i f i c s , however, several general remarks upon the methods used i n dr a f t i n g the Code of Conduct are i n order. The Governing Council 21 decision 44(111) which authorized the Executive Director to es t a b l i s h the Working Group of Experts, also stated that i t s work should focus upon the Recommendations of the 22 Executive Director. From his Report, i t i s clear that the Working Group was expected to derive the p r i n c i p l e s from t r a d i t i o n a l sources of international law.""3 However, the Working Group took the view from the outset that i t i s entrusted "with the. d r a f t i n g of general p r i n c i p l e s and guidelines which would not, by vi r t u e of being adopted by the Governing Council of UNEP or the General Assembly of the United Nations, create any new l e g a l l y binding obligations. Therefore, to the extent that any of those p r i n c i p l e s or guidelines did not ex i s t i n international law, they would not be l e g a l l y binding on states, although they could be incorporated into b i l a t e r a l 24 or m u l t i l a t e r a l t r e a t i e s concluded by states themselves". However, some representatives appear to have preferred something stronger, and considered that the p r i n c i p l e s and guidelines should be observed i n the absence of b i l a t e r a l 25 or m u l t i l a t e r a l agreements. This rather conservative (although perhaps r e a l i s t i c ) attitude, was maintained by the Group i n i t s f i n a l d r a f t , 2 6 and s i g n i f i c a n t l y , further emphasized by some states. One might have expected that t h i s would have f a c i l i t a t e d the d r a f t i n g and adoption of the P r i n c i p l e s , but t h i s does not appear to have been the case. Progress was slow and only aft e r detailed argument. The Pr i n c i p l e s can therefore be said to represent the most considered opinion yet expressed on the problem, international i n nature, and based upon a survey of state practice. - 160 -From the "explanatory note" attached to the P r i n c i p l e s , i t i s clear that they are intended "for the guidance of States" and "to encourage States sharing a natural resource to co-operate...". The P r i n c i p l e s purport to be neutral. They avoid language creative of l e g a l o b l i g a t i o n , using phrases such as " i t i s necessary", "should endeavour" and "should make", and furthermore the language used throughout does not seek to prejudice whether or to what extent the conduct envisaged i n the p r i n c i p l e i s already prescribed by e x i s t i n g rules of general international law. Neither does the formulation intend to express an opinion as to whether or to what extent and i n what manner the p r i n c i p l e s - as far as they do not r e f l e c t already e x i s t i n g rules of general international law - should be incorporated i n the body of general international law. To r e i t e r a t e then, although purportedly neutral, the simple act of attempting to draw up a Code of Conduct based upon state practice and other sources of international law, gives the P r i n c i p l e s , which do not already represent customary international law, some authority, as an expression of c o l l e c t i v e j u r i s t i c opinion. The P r i n c i p l e s f i n a l i z e d at the F i f t h Session of the Working 27 Group have been approved by UNEP1s Governing Council, and have been transmitted to the General Assembly of the 28 United Nations for adoption. Thus far the General Assembly has noted the Report and referred i t "to Governments for t h e i r study and comments, and to report thereon, taking - -16.1 -into account also other s i g n i f i c a n t information; with a view to enabling the General Assembly to take a decision 29 at the t h i r t y - f o u r t h session". Adoption, however, i s by no means a foregone conclusion. Despite agreement at the Working Group, B r a z i l has carried i t s rather i d i o s y n c r a t i c views over to the Conference for the Convention for the Conservation of Migratory S p e c i e s . ^ 3. The P r i n c i p l e s * I t i s intended to concentrate i n t h i s section upon procedural issues up to and including obligations to consult and negotiate. More complicated methods of dispute settlement such, as c o n c i l i a t i o n and a r b i t r a t i o n w i l l not be dealt with in d e t a i l . Consequently, p a r t i c u l a r attention w i l l be given to P r i n c i p l e s 2, 4, 5, 6, 7, and 8. The P r i n c i p l e s are predicated on the assumption propounded i n P r i n c i p l e 1 that states need to cooperate concerning the conservation and harmonious u t i l i z a t i o n of shared natural resources "consistent with the concept" of equitable u t i l i z a t i o n . Cooperation should be on the basis of equality and respect for the sovereignty, rights and interests of concerned states. To a great extent, the following P r i n c i p l e s simply b u i l d upon these basic assumptions. From a consideration * The P r i n c i p l e s are reprinted i n f u l l , with d r a f t headings as Appendix I. - 162 -of the Working Group reports, i t i s clear that P r i n c i p l e 1 was influenced by A r t i c l e 3 of the Charter of Economic 31 Rights and Duties of States and, indeed, some of the Working Group would have preferred the text of A r t i c l e 3 32 to have been added to the P r i n c i p l e . From an analysis of previous agreements concerning shared resources, which were, of course, mainly concerned with r i v e r s , i t was clear to the Executive Director and the Working Group that the most e f f e c t i v e means of ensuring cooperation was by the conclusion of b i l a t e r a l or m u l t i l a t e r a l agreements between states sharing the natural resource. Furthermore, cooperation would be enhanced by the establishment of i n s t i t u t i o n a l structures of some sort. This conclusion i s contained i n P r i n c i p l e 2 which also emphasizes the view of at least some states that the p r i n c i p l e s and guidelines themselves are not binding but they could be turned into l e g a l l y binding provisions by incorporation into such agreements. P r i n c i p l e 2 suggests that states should apply "as necessary the present p r i n c i p l e s i n a l e g a l l y binding manner". "As necessary" represents a change i n wording 33 from "take into account to the maximum degree possible", and "applying as appropriate". The difference i n meaning must only be a shade. A more important question i s whether the establishment of an international commission could ever be the subject of a general norm of customary international - 163 -law. The factual situations and the degrees of homogeniety ex i s t i n g between the state sharing resources are so numerous, the permutations so endless; that any obligation would have to be very generally phrased. Furthermore, one must how consider the authoratitive requirement of the International Court i n the North Sea Continental Shelf Case that the practice should " p o t e n t i a l l y be of a fundamentally norm 34 creating character". In t h i s case the generality of the obligation may preclude such a c r i t e r i o n being met. Having said that, i t i s clear that the formalization of cooperation i n an international agreement i s valuable, since i t reduces doubt about the meaning of cooperation i n pa r t i c u l a r instances. It i s possible that i n p a r t i c u l a r l y homogenous regional communities such as the Nordic States, the P r i n c i p l e may take on the character of a regional norm. Furthermore, the role of framework conventions such as the Migratory Species Convention, should not be ignored. This Convention lays down some general obligations, but the detailed protection to be given to species i s l e f t for further agreement between Range States of the p a r t i c u l a r species. The Convention merely suggests guidelines for these agreements. P r i n c i p l e 4 has been retained i n t a c t since the t h i r d meeting. The. phrase "should make" assessment remains despite changes i n p r a c t i c a l l y a l l the other - 164 -Pri n c i p l e s to the preferred " i t i s necessary". While c l e a r l y not amounting to a legal o bligation, the phrase 35 "should make" does have implications of moral oblig a t i o n . " S i g n i f i c a n t l y a f f e c t " i s defined in a footnote and therefore adds some cert a i n t y to the provisions, but the exact meaning of "de minimis" used i n the d e f i n i t i o n i s s t i l l vague. Pr i n c i p l e s 5, 6 and 7 form three cl o s e l y associated p r i n c i p l e s on the question of exchange of information, consultation and n o t i f i c a t i o n . P r i n c i p l e 7 applies a uniform p r i n c i p l e of good f a i t h to a l l these methods of cooperation. The Executive Director distinguished between n o t i f i c a t i o n , information related to the project of which n o t i f i c a t i o n 3 6 was being given, and consultation. The d i s t i n c t i o n adopted by the Pr i n c i p l e s i s s l i g h t l y d i f f e r e n t . P r i n c i p l e 5 covers the exchange of information on a regular basis not related to any s p e c i f i c project, while P r i n c i p l e 6 relates to the n o t i f i c a t i o n of such projects and the d e s i r a b i l i t y of further information about them. The Executive Director also suggested the idea of a UNEP information r e g i s t e r which would permit UNEP to disseminate such information and act as a general c o l l e c t i n g agency. However, t h i s did 37 not f i n d favour with the Working Group. P r i n c i p l e 5 i s c l e a r l y wider in scope than P r i n c i p l e 6, since information should be exchanged simply on "environmental aspects" of shared resources. There i s no prerequiste - 165 -of " s i g n i f i c a n t e f f e c t " . This, however, i s a change from an e a r l i e r draft where " s i g n i f i c a n t e f f e c t " was retained 3 8 as a criterion,. The. Principle; suggests that the Working Group did recognize the value of routine exchanges of information to a s s i s t monitoring and better u t i l i z a t i o n of the shared resource. While P r i n c i p l e 6 does adopt the s i g n i f i c a n t e f f e c t s c r i t e r i a , i t i s subject to an objective rather than a 39 subjective t e s t . The P r i n c i p l e provides for advance n o t i f i c a t i o n of pertinent d e t a i l s of future projects. What i s meant by "advance" and "pertinent" i s not made p l a i n , but a check i s provided by the P r i n c i p l e i t s e l f i n the form of a requirement that the i n i t i a t i n g state should "provide, upon request... s p e c i f i c additional pertinent information concerning such plans". Thus, i f an affected state i s not s a t i s f i e d , i t can c l e a r l y ask for further and better p a r t i c u l a r s , provided the request i s relevant. The clause may also be said to suggest something about the timing of the notice, since an affected state must have s u f f i c i e n t time before the project begins to evaluate whether i t needs further information. No s p e c i f i c mention i s made i n the f i n a l d raft for the provision of technical data, although the Executive Director and an e a r l i e r draft of the P r i n c i p l e both recommended that technical data 40 deserved to be highlighted. - 166 -Some sort of remedy for f a i l u r e to n o t i f y i s provided i n Pr i n c i p l e 6(l)d which provides that the i n i t i a t i n g state should "enter into consultations about such plans upon request". Such a remedy, however, i s c l e a r l y inadequate since i t i s possible that a project may not come to the attention of an affected state u n t i l i t has been implemented, at which time i t may be too late to bring about desirable changes. It i s clear that P r i n c i p l e 4 i s cl o s e l y related to P r i n c i p l e 6, since knowledge of a project w i l l permit an affected state to exert pressure upon the i n i t i a t i n g state to carry out an impact assessment. A trend has been noticed i n international t r a n s f r o n t i e r p o l l u t i o n law which requires p o l l u t i n g states to n o t i f y not merely the o f f i c i a l s of affected states, but also the affected public. This permits the use of private remedies 41 i n a case i n which the government may be unwilling to act. One representative proposed that t h i s be extended to shared 42 resources, but the response was unfavourable. T r a d i t i o n a l l y , domestic law does not provide an excuse for breach of international law. For certainty, P r i n c i p l e 6 assumes that withholding of information on the grounds of exi s t i n g domestic law or international convention i s permissible, but that the excuse should be used i n good f a i t h and should not prevent states taking alternative measures to provide a s a t i s f a c t o r y solution. Good f a i t h also provides the basis for P r i n c i p l e 7, 43 embodied according to the Executive Director i n paragraph 3 of General Assembly Resolution 2 995 (XXVII) and paragraphs 2 and 3 of Resolution 3129 (XXVIII). The concept of good f a i t h i s s p e c i f i c a l l y mentioned i n the f i r s t Resolution, but i t i s d i f f i c u l t to see how the Director j u s t i f i e s the second part of his proposition. Paragraph 3 of Resolution 312 9 i s addressed to the Convening Council of UNEP and the only hint i n paragraph 2 i s the statement that the system of information and pr i o r consultation should be developed "within the framework of normal re l a t i o n s e x i s t i n g between them". Thus the l a t t e r Resolution does not provide authority for the proposition and attention can, therefore, be devoted to the f i r s t Resolution. This Resolution, discussed i n d e t a i l elsewhere, was passed by the General Assembly following the f a i l u r e of the Stockholm Conference to agree upon the dr a f t i n g of the so-called" P r i n c i p l e 2 0'-on the duty to exchange information. The whole Resolution and p a r t i c u l a r l y paragraph 3, probably can be said to 44 represent "minimum" international law. Some changes i n the wording of P r i n c i p l e 7 were proposed. Some delegates preferred that "unreasonable" be omitted, and then considered that i t should be replaced by " u n j u s t i f i e d " While the l a t t e r would appear to be stronger, i t would have been preferable to omit i t altogether, since t h i s - 168 -would have brought i t into l i n e with General Assembly-Resolution 2995 (XXVII). Both the Resolution and the P r i n c i p l e impose the duty equally on the giving and the receiving state. Thus, information should not be requested simply to create delays or for improper purposes, and when requested, accurate information should be given without delay aimed at f r u s t r a t i n g the cooperation. The value of exchanging information i s also emphasized by P r i n c i p l e 8 which appears from e a r l i e r drafts to be a d i l u t e d exhortation to e s t a b l i s h j o i n t technical committees, to f a c i l i t a t e "the finding of appropriate and s a t i s f a c t o r y solutions... on the basis of agreed data", rather than as o r i g i n a l l y drafted "to foster just and 45 equitable solutions". The procedure recommended by t h i s P r i n c i p l e , being rather ad hoc, i s not well represented i n state treaty practices, but i t s ad hoc nature may well make i t more a t t r a c t i v e to states seeking a solution to a p a r t i c u l a r problem. The abundantly apparent p r a c t i c a l need for i n t e r s t a t e cooperation i n emergency situations led the Working Group to depart from i t s neutral phraseology and state c a t e g o r i c a l l y 46 that "states have a duty urgently to inform other states" of emergency situations a r i s i n g from the use of a shared resource, and of "sudden grave natural events related to a shared resource". The f i r s t case w i l l cover accidental - 169 -releases of hazardous pollutants. Pollutants are not themselves shared resources, but t h e i r e f f e c t s are generally f e l t through the medium of shared resources, such as a i r masses, or international watercourses. The second w i l l cover events such as flooding of an international r i v e r , or a hurricane. The l a t t e r case at least provides an example of where i t would normally be appropriate to also inform the competent international organization as provided in paragraph 2 of P r i n c i p l e 9. The e f f i c a c y of such warnings w i l l largely be determined by the extent to which states have taken the trouble to formulate plans for such a contingency. If the c r i s i s i s int e r n a t i o n a l in e f f e c t , an e f f i c i e n t and e f f e c t i v e plan demands international action. Paragraph 3 recognizes the v a l i d i t y of t h i s proposition. Conclusion The main in t e r e s t of the chapter must be i n the P r i n c i p l e s themselves; to what extent do they add to the corpus of international law applicable to shared resources? It i s suggested that there i s l i t t l e to be gained by an exhaustive and an exhausting treatment of the extent to which the Pr i n c i p l e s are merely declaratory of e x i s t i n g p r i n c i p l e s of international law. E x i s t i n g p r i n c i p l e s have already been considered. There i s l i t t l e , i f anything, i n the Pr i n c i p l e s which i s new; they are a consolidation and - 170 -therein l i e s t h e i r main, importance. They help bring together from d i f f e r e n t areas of shared resource cooperation some generally agreed p r i n c i p l e s . These p r i n c i p l e s may then be applied to other less well developed areas of shared resources practice. - 171 -FOOTNOTES 1. G. A. Resoln, A/RES/2997 (.XXVII) 19 January 1973, I n s t i t u t i o n a l and Fi n a n c i a l arrangements for international environmental cooperation. 2. Ibid., Preamble. 3. Report of the Second Session of UNEP's Governing Council, March 19-22 1974, III (.5) A (c) , reported i n Ruster I, 259, 276. 4. G. A. Resoln, 3192 (XXVIII) 13 December 1973, Cooperation i n the f i e l d of the environment concerning natural resources shared by two or more states. 5. Resolutions 2995, 2996, 2997 (XXVII) 15 Dec. 1972 r e l a t i n g to cooperation between states i n the f i e l d of the environment, the international environmental r e s p o n s i b i l i t y of states, and the establishment of the G.C. of UNEP (supra) respectively. 6. Decisionl8 (2) of the G.C, reported Ruster I at 2 91. 7. Report of the Executive Director on Cooperation i n the f i e l d of the environment concerning natural resources shared by two or more states, UNEP/GC/9-4, 20 February 1975 (hereafter Report of Executive Di r e c t o r ) . 8. The responses of two other states, Finland and Uruguay form an addendum to UNEP/GC/44 (Add.l, 15 A p r i l 1975). 9. Report of Executive Director, supra, n.7 at 4, para.9. 10. W.P. submitted by D. Vicente Guillemero Arnaud to the f i r s t meeting of the intergovernmental working group of experts on natural resources shared by two or more states. The paper i s attached to the report of t h i s W.G., UNEP/GC/74, 9 Feb. 1976, Annex. 2 (hereafter t h i s report w i l l be c i t e d as Report of W.G.I). 11. Report of Executive Director, supra, n.7 at 3 to 5. It i s clear that the problems presented are not of the same character. 12. Ibid., at 40. 13. Ibid., at 40,41. 14. Ibid., at 44,45. - 172 -15. Decision 44(.iii), of UNEP, G.C., Third Session, 17 A p r i l - 2 May 1975, O f f i c i a l Records of G.A. (XXX), Supp.25 (A/10025) at 111-112. 16. See Annex I, further references to the text of the Pri n c i p l e s w i l l not be footnoted. 17. Report of Executive Director, supra, n.7, at 36. 18. G. A. Resoln. 7997(XXVII) 19 Janaary 1973, I n s t i t u t i o n a l and f i n a n c i a l arrangements for international environmental cooperation. 19. G.A. Resoln. 3281 (XXIX), 15 January 1975. 20. Report of Executive Director, supra, n.7, at 41. 21. Supra, n.15. 22. Supra, n.15, para.2. 23. Report of the Executive Director, supra, n.7, at 44, paragraph 87(b). "The general p r i n c i p l e s and guidelines to be included i n t h i s draft code of conduct could be . derived from the practice of states as evidenced i n b i l a t e r a l and m u l t i l a t e r a l agreements and other sources of international law as well as from formal and informal arrangements, the work of international organizations and the writings of eminent j u r i s t s and other experts." 24. Report of W.G.I, supra, n.10 at 3, paragraph 13. 25. The word "appear" i s used advisedly since the Report of W.G.I also states that "some representatives considered that the p r i n c i p l e s and guidelines should be observed in the absence of b i l a t e r a l or m u l t i l a t e r a l agreements", (emphasis supplied). 26. The representatives of Roumania, India, Poland and the U.S.S.R. a l l emphasized that the P r i n c i p l e s were merely Recommendations. On the other hand, the Mexican expert c l e a r l y considered that most of the Pr i n c i p l e s already had le g a l force. Report of the Intergovernmental Working Group of Experts on Natural Resources Shares by Two or More States on the work of i t s F i f t h Session, Nairobi, 23 January to 7 February 1978. UNEP/1G12/2 8 February 1978, at 6 para. 15 (hereafter W.G.5). - 173 -27. UNEP Doc/GC.l/L.6. Add. 5 May 22, 1978, reprinted i n 17 I.L.M. 1091 (1978). Reservations were expressed by some states. B r a z i l , Mexico, Colombia and Japan f a i l e d to j o i n the consensus and China abstained. These states simply re i t e r a t e d the views they had expressed in working group sessions which are discussed below. 28. The report has also been submitted to the Ecnomic and Social Council which transmitted the P r i n c i p l e s unchanged to the General Assembly with the same general c r i t i c i s m s that were voiced at the UNEP Governing Council Meeting. Regular session report GAOR Supp.No.3 (A/33/3) at 53. 29. G.A. Resoln. 33/87, Cooperation i n the F i e l d of the Environment Concerning Natural Resources Shared by Two or More States, Reprinted at 5 Environmental Policy and Law 104 (1979). This resolution i s simply a postponing resolution proposed by Sweden afte r states l i k e B r a z i l had argued that the General Assembly should take no action. 30. The subject was avoided at the negotiations leading to the Migratory Species Convention, June 1979, and a l l reference to Shared Natural Resources was l e f t out of the Treaty, with the consequence that Argentina opposed i t . 5 Environmental Policy and Law 113 (1979). The issue was raised during the 7th. UNEP/G.C., i n conjunction with the decision regarding Environmental Law. The Governing Council hoped that the "General Assembly at i t s t h i r t y - f o u r t h session w i l l take note of the report and adopt the f i f t e e n p r i n c i p l e s i n t h e i r i n t e r - s t a t e r e l a t i o n s " . Despite the fact that t h i s was only mentioned in the non-operative part of the resolution, B r a z i l , Colombia, India and Mexico again expressed reservations, i b i d . 31. Supra, n.19. The voting on A r t i c l e 3 indicates considerable dissention. In fact more votes were cast against t h i s than any other A r t i c l e of the charter. 97 for and 25 against, with 7 abstentions. 32. Report of W.G.I, supra, n.10 at 5 footnote 6. 33. Ibid, at 6 34. 1969 I.C.J. Reports 3, 43. 35. Reference may also be made here to the associated P r i n c i p l e of Non-distrimination enunciated i n P r i n c i p l e 13. As pointed out, t h i s forms the basis of OECD practice and was at the heart of the Nordic Convention. - 174 -36. Report of the Executive Director, supra, 7 at 43. 37. The following sentence was inserted at the Second Session of the W.G. "Such information may also be supplied to UNEP which w i l l make i t available to the States convened". However, during the Third Session, the sentence was deleted when a number of representatives objected to i t s i n c l u s i o n on the grounds that i t would lead to an unwarranted extension of UNEP's r o l e . Report of the Third Session of the Working Group, UNEP/1G.7/3 at (hereafter Report of W.G. 3). 38. This was dropped after the Third Session, i b i d . 39. This can be contrasted with the subjective nature of the f i r s t d r a f t . Report of W.G. 1, supra, n.10 at 7. 40. Report of Executive Director, supra, n.7 at 4 3; and Report  of W.G.3., supra, n.37, at 11. Mention may also be made of A/RES/2995 paragraph 2, 19 January 1973. 41. Supra, chapter on tr a n s f r o n t i e r p o l l u t i o n . 42. Report of W.G. 3, supra, n.37 at 11. See also A/RES 2995 para. 2, 19 January 1973; both refer to public and private knowledge. 43. Report of Executive Director, supra, n.7 at 43. 44. Supra, chapter 5, and L.Sohn., The Stockholm Declaration, 14 Harv; International Law Journal 423 at 496-502. 45. Report of W.G. 1, supra, n.10 at 3. 46. Emphasis supplied. - 175 -THE TREND IN INTERNATIONAL COOPERATIVE AGREEMENTS TO PROTECT WILDLIFE  U n t i l the post World War II period, p r a c t i c a l l y a l l international conservation agreements that were concluded had, as t h e i r major aim, the preservation of a stock capable of supporting either commercial or sport hunting or both. 1 They took the form of re c i p r o c a l agreements to withdraw areas of land and/or to agree upon closed seasons for the hunting of s p e c i f i c species to permit regeneration. The 2 establishment of refuges was usually voluntary. The c o l o n i a l attitude of the Great Powers i n A f r i c a was not h e l p f u l . Although favourable to some protection of w i l d l i f e , e f f o r t s were orientated towards the supply of game for white hunters. With the establishment of agriculture, habitat was encroached upon and more and more species which had previously been tolerated were perceived as threats to 3 private i n t e r e s t s . 4 Following the War, attitudes began to change. The Third World a n t i - c o l o n i a l i s t movement got underway and i n the F i r s t World, environmental perceptions were slowly heightening. It was recognized that the depradations of man were bringing about the extinction of species and that values other than 5 hunting could be placed upon the preservation of species. Wild animals were seen as forming an irreplacable part of the earth's natural system which must be conserved for the good of mankind. Of more recent o r i g i n i s the t r u s t concept that "each generation of man holds the resources - 17 6 -of the earth for future generations and has an obligation to ensure that t h i s legacy i s conserved and, where u t i l i z e d , i s used wisely".^ It i s suggested that t h i s change i n attitudes has led to changes i n the type of agreements that are concluded and the i n s t i t u t i o n a l arrangements made thereunder. Whereas . . 7 prewar t r e a t i e s would mainly be c l a s s i f i e d as s t a t i c .models, that i s to say, a single convention with l i t t l e or no means provided for future cooperation, the more recent trend of w i l d l i f e conservation t r e a t i e s has been to provide dynamic models with an emphasis on continuing cooperation. Development in t h i s area has been pioneered i n international fishery agreements, but i s now receiving a wider acceptance. This suggests that there i s a novement towards international management rather than ad hoc attempts to coordinate protective measures. In an analysis of recent conventions, i t seems valuable to d i s t i n g u i s h those which are actually concerned with management of a resource and those which simply emphasize the need for further cooperation. The former are c l e a r l y more l i k e l y to spawn i n s t i t u t i o n a l structures. In the analysis, the p a r t i c u l a r concern w i l l be with procedural obligations. At f i r s t glance, i t may seem that the procedural rules considered elsewhere (such as a duty to notify) are not relevant here, so a few examples w i l l be given of t h e i r - 177 -application. F i r s t l y , a migratory animal herd: States A and B both have an interest i n perpetuating i t s existence since both are range states. State B proposes to bu i l d a highway which w i l l e f f e c t i v e l y bisect the range. This i s c l e a r l y a good example of a need for n o t i f i c a t i o n . S i m i l a r l y , a migratory b i r d species: one state upon the flyway of t h i s b i r d proposes to extend an ai r p o r t which w i l l probably have the e f f e c t of destroying habitat which the . . 9 species u t i l i z e s on Its annual migration. Management of migratory species would also benefit from am exchange of information between range states concerning population status and dynamics, habitat requirements, etc. Species s p e c i f i c management, p a r t i c u l a r l y of land based animals, i s no longer considered to be necessarily the correct approach. What i s needed i s integrated management of habitat. This recognizes the i n t e r r e l a t i o n s h i p of species within an ecosystem, although s p e c i f i c dependencies may be unknown. This automatically places the forms of management on a d i f f e r e n t scale; ecosystems 1 0 are generally large units, including both l i v i n g and non-living elements. Clearly t h i s approach raises the p r o b a b i l i t y of management issues becoming international i n nature and crossing j u r i s d i c t i o n a l boundaries. Thus, as Oran Young says "where ecosystems cut across national boundaries as i n the A r c t i c i t i s impossible to manage them e f f e c t i v e l y through uncoordinated national a c t i o n " . 1 1 Writers have suggested two solutions to t h i s - 178 -problem. F i r s t l y , some have suggested that a shared ecosystem (even i f not unique or even of global significance) should be treated as a shared natural resource, making a sovereign state subject to some procedural and substantive 12 r e s t r a i n t . Secondly, and even more sharply at odds with conventional custom on the absolute nature of national sovereignty, there i s the view that i f a state contains an object, species or ecosystem of international s i g n i f i c a n c e , 13 i t may warrant "international protection measures" or, more strongly, international law may l i m i t the capacity of the sovereign state to deal with that object. Writers supporting t h i s theory do not require that the object extend across a< boundary or beyond the l i m i t s of national j u r i s d i c t i o n . Such an extreme view would probably only f i n d l imited support among states, and would probably be rejected outright by most former c o l o n i a l countries. Two m u l t i l a t e r a l conventions, however, make tentative moves in t h i s d i r e c t i o n of a world tr u s t concept: the Convention for the Protection of World 14 Cultural and Natural Heritage and the Convention on Methods of International Importance e s p e c i a l l y as waterfowl 15 habitat. However, both these Conventions emphasize that designation of land under the Convention does not l i m i t 16 a state's sovereign powers, and neither provide for international management of the designated areas. The Wetlands Convention provides that each party s h a l l designate 17 at least one wetland of international importance. The Convention i s an application of the ecosystem approach and a recognition of "the fundamental ecological functions - 179 -of wetlands as regulators of water regimes and as habitats supporting a c h a r a c t e r i s t i c f l o r a and fauna, e s p e c i a l l y 18 waterfowl". The World Cultural Convention follows a s l i g h t l y d i f f e r e n t procedure. States are to nominate objects or areas of great c u l t u r a l or national heritage 19 value. Such nominations are vetted by a world heritage 20 committee composed of technical experts rather than diplomats, which w i l l e s t a b l i s h and keep up to date the 2 World Heritage L i s t , and a L i s t of World Heritage i n Danger. The Heritage Committee i s the main i n s t i t u t i o n a l structure of the Convention, although A r t i c l e 16 (concerned with contributions to the World Heritage Fund) provides for a "General Assembly of States Parties to the Convention meeting during the sessions of the General Conference of UNESCO". The Wetlands Convention i s almost as vague i n i t s provision for convening "Conferences on the Conservation of Wetlands 22 and Waterfowl" as the necessity a r i s e s . Vagueness also dominates the barely expressed desire for cooperation between states i n implementing the World Cultural Convention. I t c e r t a i n l y does not condescend to p a r t i c u l a r s . However, there has been at least one example of b i l a t e r a l cooperation i n the implementation of the Convention. The United States and Canada have submitted a j o i n t natural heritage s i t e proposal i n the Kluane/Mt.St. E l l a s Parks i n the Yukon T e r r i t o r y and Alaska. These Parties do have a r i c h practice of establishing international parks, usually - 180 -on the basis of administrative agreements rather than formal conventions.^^ The Wetlands Convention i s more s p e c i f i c and recognizes the need for future cooperation: The Contracting Parties s h a l l consult with each other about implementing obligations a r i s i n g from the Convention e s p e c i a l l y i n the case of wetland extending over the t e r r i t o r i e s of more than one Contracting Party or where a water system i s shared by Contracting Parties. They s h a l l at the same time endeavour to co-ordinate and support present and future p o l i c i e s and regulations concerning the conservation of wetlands and t h e i r f l o r a and fauna. 25 It i s suggested that these two Conventions i l l u s t r a t e one possible trend for conservation agreements. Both emphasize the protection of habitat, both for i t s own purpose and for other desirable ends. Both emphasize (mainly perhaps because of t h e i r u n i l a t e r a l nature) national i n i t i a t i v e s and national management. However, the international forum does act as a coordinator of i n i t i a t i v e s and planning. It draws international attention to the problem and lends moral suasion to groups already aware of the need. Although the requirement of cooperation i s limited and l a r g e l y undefined, the Conventions do provide a focus for future cooperation. Dynamic i n s t i t u t i o n a l structures which- would have further f a c i l i t a t e d t h i s cooperation are not well developed. F i n a l l y , an international l i s t i n g does give a s i t e some moral protection i f there should be domestic p o l i t i c a l pressure for a change i n i t s status. ^ 181 -Several other m u l t i l a t e r a l conventions follow the same trend, but with strengthened I n s t i t u t i o n a l machinery: Convention on the Conservation of Migratory Species of 2 6 Wild Animals, Convention on International Trade i n 27 Endangered Species, and the Council of Europe Draft Convention on the Conservation of W i l d l i f e and Natural 2 8 Habitats. A l l three Conventions focus on species per se, but recognize that habitat protection and reduction of trade i n trophies and l i v e specimens are e s s e n t i a l tools to be used i n conservation. A l l e s t a b l i s h strong dynamic 29 coordinating and review i n s t i t u t i o n s which c l e a r l y e n t a i l continuing cooperation and two of them further impose s p e c i f i c cooperative obligations on ,the Parties,. The language of the Migratory Species Convention could hardly be described as coercive i n t h i s respect, since i t merely requires that Range States " s h a l l endeavour to conclude Agreements covering the conservation and management" of 30 . . . l i s t e d migratory species. The European Draft i s similar to the Wetlands Convention, and provides for coordination 31 in border habitat areas needing protection and, more broadly, cooperation where appropriate i f t h i s would f a c i l i t a t e 32 the working of the Convention. . Since the concern of the Migratory Convention i s with "international species" cooperative arrangements between states are the main emphasis, t h i s i s not so for the Eurpoean Draft or CITES, both of which emphasize the need for national action within international guidelines. - 182 -Other conventions of the same type may be c i t e d which appear to recognize a need for cooperative state practice i n the protection of w i l d l i f e and habitat. Like the European Draft, the OAU Convention on the Conservation of Nature 33 and Natural Resources, provides for cooperation between contracting states to further the purposes of the Convention, and where national measures are " l i k e l y to a f f e c t the 34 natural resources of any other state". By far the best i l l u s t r a t i o n , however, of the value of a dynamic model and of a move towards international management (although 35 in rather special circumstances) i s the Antarctic Treaty. The Treaty emphasises the value of international s c i e n t i f i c 3 6 cooperation, but environmental protection i s relegated to matters about which the Parties s h a l l consult. However, t h i s has not prevented the Consultative Parties taking a v i t a l i n t e r e s t i n the question. It has occupied a considerable proportion of time at consultative meetings, and spawned the development of Specially Protected Areas and Species, and Sites of Special S c i e n t i f i c Interest. Proposals for designation under one of these headings are put to a Consultative Meeting by a State or group of States. In the case of SPA's and SSSI's the proposals are accompanied by management plans. Acceptance by a Consultative Meeting i n practice r e s u l t s i n the proposing states being given the r e s p o n s i b i l i t y of managing the area according to the terms of the plan. One can recognize here some form of international stewardship. Each of the consultative parties - 183 -i s active i n p a r t i c u l a r areas of Antarctica and through i t s national representative on SCAR ( S c i e n t i f i c Committee on Antarctic Research) appears to take the r e s p o n s i b i l i t y (in cooperation with s i m i l a r l y located states) for i d e n t i f y i n g l o c a l areas p a r t i c u l a r l y deserving of international protection. These proposals are vetted at the international l e v e l both by SCAR and the consultative meeting so that they conform to a standard set of international c r i t e r i a . At a l l stages international cooperation and the free exchange of information i s emphasised."^7 A further group of conventions may be i d e n t i f i e d which simply provide for continuing environmental cooperation without any emphasis on the protection of species or habitat, and usually without any i n s t i t u t i o n a l arrangements. Typical 3 8 i s that between the United States and the U.S.S.R. which provides for an exchange of information and research data on a variety of projects and an exchange of personnel and v i s i t s . The Preamble r e f l e c t s the view that both states w i l l benefit from cooperation. There i s c e r t a i n l y no 39 suggestion that cooperation i s required by international law. This discussion began by suggesting that early twentieth century practice was hunter orientated, p a r t i c u l a r l y with respect to birds for hunting. During the seventies, however, a series of inter s t a t e conventions have been concluded emphasizing habitat protection and procedural questions, - 18 4 -with s p e c i f i c reference to migratory Bird Species; 40 Convention between U.S.A. and Japan, Convention between 41 A u s t r a l i a and Japan, and the Convention between the U.S.A. 42 and the U.S.S.R. * From a procedural aspect, the l a t t e r i s the most int e r e s t i n g because of i t s provision i n A r t i c l e IV (2). a which provides that each Contracting Party s h a l l : Provide for the immediate warning of the competent authority of the other Contracting Party i n case of substantial anticipated or exi s t i n g damage to s i g n i f i c a n t numbers of migratory birds or the p o l l u t i o n or destruction of t h e i r environment. The competent authorities of the Contracting Parties w i l l e s t a b l i s h necessary procedures for such warnings and w i l l co-operate to the maximum possible degree in preventing, reducing or eliminating such damage to migratory birds and t h e i r environment and i n providing for the r e h a b i l i t a t i o n of th e i r habitat. In addition to t h i s duty to n o t i f y in an emergency s i t u a t i o n , there i s also an obligation upon the Parties to consult upon request regarding the "implementation of the Convention". This provision i s also common to the other two Migratory 44 Bird Conventions. A l l three provide for the exchange 45 • of information and research data and for n o t i f i c a t i o n to the other Party of special measures taken to protect a 46 species thought to be on the verge of extinction. None of the conventions s p e c i f i c a l l y provides for n o t i f i c a t i o n where one state intends to carry out some development which might a f f e c t the habitat of migratory species. - 185. -However, i t could be argued that such an action would well be a matter concerning the "implementation of the Convention". Consequently, the affected state might well demand to be consulted i f , by some means, i t were able to obtain notice of the development. This i s inadequate since i t might be too late to stop or even modify the development. From t h i s b r i e f survey of conservation agreements outside of f i s h management conventions, it. Is clear that. some, changes; are developing. The Parties are beginning to take a more h o l i s t i c view, and to emphasize habitat protection as much as species protection per se. They are beginning to develop i n s t i t u t i o n a l arrangements, thereby -leading to continuing cooperation. Procedural obligations are s t i l l weak despite a suggested need. This i s an area of shared resources management which would benefit from an application of UNEP's shared resources p r i n c i p l e s . State practice i s not yet s u f f i c i e n t to i d e n t i f y an emerging norm. The most one can say i s that there i s an i n t e r e s t i n g trend i n recent w i l d l i f e conservation agreements emphasizing in t e r s t a t e cooperation and management of international w i l d l i f e . - 186 -FOOTNOTES 1. See, for example, M u l t i l a t e r a l Convention Designed to Ensure the Conservation of Various Species of Wild Animals i n A f r i c a , which are Useful to Man or Inoffensive, London, May 19, 1900, Ruster IV, 1605; Convention between the U.S. and G.B. for the Protection of Migratory Birds, Washington, August 16, 1916, Ruster IV, 1638; Convention Relative to the Preservation of Fauna and Flora i n Their Natural States, London, November 8, 1933, Ruster IV, 1693. 2. See, e.g. US/UK Migratory Birds Treaty, A r t i c l e IV, i b i d . , and Convention Relative to the Preservation of Fauna and Flora, Ibid., A r t i c l e 3(1). "The Parties w i l l explore forthwith the p o s s i b i l i t y of establishing i n t h e i r t e r r i t o r i e s national parks and s t r i c t national reserves", (emphasis supplied). 3. Now a major problem i n the Serengeti Area of East A f r i c a . There are also c l e a r p a r a l l e l s here with the e f f e c t of development on big game in the North American A r c t i c . 4. This statement i s only p a r t i a l l y true. The hunting of birds for sport i s s t i l l prevalent i n some European States, notably I t a l y and France. The opposition of these states has consistely blocked the extension of protection to migratory passerines and raptors, both within an EEC framework and within the framework of a general European Convention. 5. The Preamble to the Bonn Convention on the Conservation of Migratory Species of Wild Animals, Bonn, 2 3 June, 1979 (not yet i n force) states i n t e r a l i a "Conscious of the ever-growing value of wild animals from environmental, e c o l o g i c a l , genetic, s c i e n t i f i c , aesthetic, r e c r e a t i o n a l , c u l t u r a l , educational, s o c i a l and economic points of view. 6. Ibid. 7. International control of f i s h e r i e s provides something of an exception as well as a precedent, i n that there was some development of dynamic i n s t i t u t i o n a l models well before the Second War. However, i t i s hardly surprising that t h i s development was mainly limited to b i l a t e r a l agreements between homogenous states. See for example, the International P a c i f i c Halibut Convention, March 2, 1923, 32 LNTS 94, May 9, 1930, 121 LNTS 45, Jan. 27, 1937, 181 LNTS 209; and the International P a c i f i c Salmon Fisheries Convention, May 26, 1930, 184 LNTS 306. 8. The factual s i t u a t i o n does not d i f f e r greatly from Canadian building of the Dempster and the possible e f f e c t s that w i l l have on the Porcupine caribou herd. - 187 -A proposed extension of Vancouver International Airport would have a detrimental impact on habitat i n the Fraser Estuary u t i l i z e d by migratory shore birds. Ecosystems, to quote Max Dunbar "refers to the balance between species i n a community and between the community and i t s environment, and the flow of energy through both", from Environment and Good Sense, at 56 (1971). S p e c i f i c systems may be single and cover a geographically sjpall area (e.g. A r c t i c lakes). However, once one deals with amigratory species the geographical area of the systems extend, and impacts on that system i n any one place may have consequences throughout the whole system. 0. Young, Resource Management at the International Level, at 23 (1977). See for example, Schneider, New Perspectives on International  Environmental Law, 82 Yale L.J. 1659, 1660 (1973), and Report of UNEP's Executive Director on Cooperation i n  the F i e l d of the Environment Concerning Natural Resources  Shared by Two or More States, UNEP/GC/44, 20 February, 1975 at 40 to 41, para. 86. This ambiguous phrase i s a paraphrase from Schneider, New Perspectives on International Environmental Law, 82 Yale L.J. 1659, 1660 (1973). In f u l l , Jan Schneider states that "because of t h e i r great genetic, aesthetic, c u l t u r a l or h i s t o r i c a l s i g n i f i c a n c e , some endangered species, objects or monuments within p a r t i c u l a r sovereign states warrant International measures for t h e i r protection". It i s d i f f i c u l t to know what Schneider means here. She may simply be making the rather t r i t e observation that i f the people of the world wish to preserve objects such as the Acropolis, or natural regions such as the Serengeti, they may have to pay for them i f the respective national governments are unable or unwilling to do so. (See Agreement Concerning the Voluntary Contributions for the Execution of the Project to save the Temples of Philae, 19 Dec. 197 0, Burhenne (ed.) Internationales Umveltrecht - M u l t i l a t e r a l e Vertrage 970:94 (.1977). She may, however, be making the more r a d i c a l statement that a nation's sovereignty i s l i m i t e d i n dealing with these resources. Louis Sohn i s more s p e c i f i c , and states c a t e g o r i c a l l y that "no state can claim an absolute r i g h t to ruin i t s environment i n order to obtain some transient benefits. It should think not only of the e f f e c t on other people, but also about the future of i t s own people". L. B. Sohn, The Stockholm Declaration, 14 Harv.Int'l L.J. 423, 492 (.1973) . Ramsar, 2 February 1971, Ruster V, 2169. - 188 -15. UNESCO, Paris, 16 November, 1972, 11 I.L.M. 1358. 16. A r t i c l e 2(3) of the Wetlands Convention, supra, n.14, provides that "The inclusion of a wetland i n the L i s t does not prejudice the exclusive sovereign rig h t s of the Contracting Party i n whose t e r r i t o r y the wetland i s situated." S i m i l a r l y , the World Cultural Convention provides ( A r t i c l e 6(1)) "Whilst f u l l y respecting the sovereignty of the States on whose t e r r i t o r y the c u l t u r a l and national heritage... i s situated, and without prejudice to property rights provided by national l e g i s l a t i o n , the States Parties to t h i s Convention recognize that such heritage constitutes a world heritage for whose protection i t i s the duty of the international community as a whole to co-operate." Ibid. 17. Supra, n.14, A r t i c l e 2. 18. Supra, n.14, Preamble. 19. Supra, n. 15, A r t i c l e 11. 20. Supra, n. 15, A r t i c l e 8. 21. Supra, n. 15, A r t i c l e 11. 22. Supra, n. 14, A r t i c l e 6. 23. Supra, n.15, A r t i c l e 7. "For the purpose of t h i s Convention, international protection of the world c u l t u r a l and natural heritage s h a l l be understood to mean the establishment of a system of international co-operation assistance designed to support States Parties to the Convention i n t h e i r e f f o r t s to conserve and i d e n t i f y that heritage." 24. They include the Klondike International H i s t o r i c a l Park (Alaska/B.C.), the Glacier/Waterton Lakes Park (Alberta/ Montana), the Seattle Peace Park (Washington/B.C.), the proposed Point Roberts International Marine Park (Washington/B.C.), and the proposed A r t i e International W i l d l i f e Range (Alaska/Yukon). See also, for an i d e a l i s t i c statement by an environmentalist, J. E. C a r r o l l , International Peace Parks: A Concept and a Proposal, a paper submitted to the Conference on Canadian National Parks: Today and Tomorrow, Banff, Alberta, October 197 8. On the formal side, there i s the Roosevelt Campobello International Park wholly within New Brunswick, but managed j o i n t l y as a memorial to Roosevelt through the Roosevelt Campobello International Park Commission, Washington, D.C., 22 January 1964, TIAS, 5631. 25. Supra, n.14, A r t i c l e 5. - 18 9 -26. Supra, n.5. 27. Washington, 3 March 1973, Ruster V, 2228 (hereafter CITES). 28. Draft printed i n 5 Environmental Policy and Law 52 (1979). 29. The Migratory Sepcies Convention establishes a Secretariat, a S c i e n t i f i c Council and a Conference of the Parties ( A r t i c l e s 8, 9 and 7 respectively) (supra, n.5). CITES establishes a Conference of the Parties and a Secretariat (supra, n.27), and the European Draft establishes a powerful Standing Committee, A r t i c l e s 12, 13 and 14 (supra, n.28) . 30. Supra, n.5, A r t i c l e 2(3)c, and IV(3). 31. Supra, n.28, A r t i c l e 4(4). 32. Supra, n.28, A r t i c l e 11(i)a. 33. A l g i e r s , Sept. 15, 1968, Ruster V, 2037. 34. Ibid., A r t i c l e 16(1)a and b. In a similar s t y l e i s the Convention on the Conservation of Nature i n the South P a c i f i c , Apia, 12 June 1976, A r t i c l e VII. Further cooperation i s also provided for through the South P a c i f i c Commission. Burhenne (ed.) Internationales Umweltrecht - M u l t i l a t e r a l e Vertrage, 976:45/1 (1977) (hereafter Burhenne). 35. Washington, 1 December 1959, Ruster I, 18 - sp e c i a l circumstances because A r t i c l e IV of the Treaty suspended a l l sovereignty claims. 36. Ibid., A r t i c l e I I I , the raison d'etre of the whole treaty. 37. See for example, Consultative Recommendations IV-19, VI-9 and VIII-6, respectively, 13 Polar: Record 629 (1967), 15 Polar Record 729 (1971), 18 Polar Record 202 (1976). 38. Agreement on Co-operation i n the F i e l d of Environmental Protection, Moscow, 23 May 1972, Ruster I, 50. 39. See also Agreement between the U.S.A. and West Germany on Co-operation i n Environmental A f f a i r s , 9 May 1974, Ruster I, 77, and Exchange of Letters Regarding the Means of Cooperation between the Commission of the European Communities and the United States Government i n Environmental Matters, Brussels, Washington, June 4 and July 1, 1974, Ruster I, 80. 40. Washington,19 September, 1974, Ruster V, 2192. - 190 -41. Tokyo, 6 February 1974, Ruster V, 3201. 42. Moscow, 19 November 1976, 2 Earth Law J n l . 417 (1976). 43. Ibid., A r t i c l e X. 44. USA-Japan, supra, n.40, A r t i c l e 8; and Japan-Australia, supra, n.41, A r t i c l e 8. 45. USA-Japan, supra, n.40, A r t i c l e 5; Japan-Australia, supra, n.41, A r t i c l e 4(1) and (2); USA-USSR, supra, n.42, A r t i c l e 6. 46. USA-Japan, supra, n.40, A r t i c l e 4 (.2) ; Japan-Australia, supra, n.41, A r t i c l e 3(2); USA-USSR, supra, n.42, A r t i c l e V(2). - 191 -THE CASE STUDY AND PROCEDURAL OBLIGATIONS TO COOPERATE  1. Introduction The discussion thus far has focused upon three regimes which are analagous to the cases i n question. In each regime i t has been possible to i d e n t i f y , to varying degrees, the development of procedural obligations. In addition, consideration has also been given to UNEP unifying p r i n c i p l e s and the general trend of state treaty practice i n w i l d l i f e protection and management. The procedural obligations perform two functions: they f a c i l i t a t e the r a t i o n a l management of shared resources and impose constraints upon the u n i l a t e r a l action of one state, which may have a substantial impact upon the interests of another. It i s not intended to attempt to extract general p r i n c i p l e s from these various f i e l d s for i t i s suggested that such a process would be s t e r i l e . Rather, the aim here i s to apply the conclusions of the preceding chapters to the proposals i n the North American A r c t i c outlined in the Introduction. It i s therefore intended to consider what l e g a l p r i n c i p l e s are applicable to the proposal for an international w i l d l i f e range i n North East Alaska and the Northern Yukon, and the proposal for an international management i n s t i t u t i o n for the Migratory Porcupine Caribou herd. Some consideration w i l l be given to the May 14, 1979 Canadian dra f t Caribou Convention."'" The relevance of the three regimes studied has already been investigated i n the introductory section on common property resources. The Porcupine Caribou herd i s a migratory species which crosses the United States/ea,nadian international boundary between Alaska and the Yukon with predictable r e g u l a r i t y . Habitat i n both states i s e s s e n t i a l to the preservation of the Caribou as a v i t a l species. The Caribou may be, and are, harvested on both sides of the international boundary. At present native peoples are the main harvesters. 2 Doubt exists as to the exact population of the herd, despite study by both the Canadian W i l d l i f e Service and the U.S. Fish and W i l d l i f e Branch. The herd i s currently threatened on several fronts. O i l and gas exploration and exploitation and associated seismic l i n e s and access roads may cause a deterioration of habitat and/or present obstacles to migration. The building and opening of the Dempster Highway w i l l have at least two potential impacts. F i r s t l y , i t may present 3 a threat to migration and, secondly, i t w i l l c e r t a i n l y increase the v u l n e r a b i l i t y of the herd to both native and non-native hunters i n the wintering grounds in and around 4 the Ogilvie Mountains. Thus, native hunters w i l l be able to t r a v e l down from Aklavik, Inuvik and Fort McPherson i n the winter to continue t h e i r harvest , whereas i n the past i t had mainly been taken during the short period of time i n the late summer that the herd was i n the Richardson Mountains. The Highway also f a c i l i t a t e s access to white southern hunters coming north from Dawson City . C l e a r l y , without some form of l e g i s l a t i v e and p r a c t i c a l protection, the herd - 193 -near the road i s i n a very vulnerable position. Other factors which may have a detrimental impact on the herd 5 include the proposed Dempster Pipeline o v e r f l i g h t s (especially the "buzzing" of Caribou by small planes), sonic booms, 7 mining and the e f f e c t of tourism and increased public recreation access. Less obviously, one may consider the effe c t s of the attempts of Caribou b i o l o g i s t s to manage the herd. The l a t t e r i s , of course, intended to be b e n e f i c i a l and perhaps i t i s therefore preferable to discuss i t as a possible threat to the A r c t i c ecosystem. U n t i l t h i s point i n the essay, the w i l d l i f e range and the Caribou Management Convention have been discussed as two separate and d i s t i n c t proposals. To a certain extent t h i s i s v a l i d , for on the one hand i t i s possible to i d e n t i f y a d i s t i n c t movement leaning towards the creation of an international w i l d l i f e range, and on the other i t i s possible to i d e n t i f y a group concerned with the Caribou management problem. Internal competition between federal o agencies and departments may help perpetuate t h i s d i s t i n c t i o n 9 between the proposals, but to some extent i t must be f a l l a c i o u s . One cannot consider protection of the Caribou herd and of the ecosystem i n i s o l a t i o n since the Caribou forms a part of the A r c t i c ecosystem and indeed, the Draft Canadian Caribou Convention recognizes t h i s fact, even i f i t does not act upon i t . 1 0 It i s clear that anything that has an impact on the Caribou w i l l also have some impact on the ecosystem by d e f i n i t i o n . I t i s also l i k e l y that the cumulative e f f e c t - 194 -of the development alluded to w i l l be greater on the ecosystem than simply on the Caribou. The important point i s that the ecosystem does extend across the international boundary, that i t i s (as has been noted) of int e r n a t i o n a l s i g n i f i c a n c e and that u n i l a t e r a l action by one state i n one part of the ecosystem may detrimentally a f f e c t t h i s shared resource."'""'" It i s c l e a r l y not possible to argue that a l l aspects of the three regimes that have been examined present useful analogies. To attempt to do so would lead to some rather odd reasoning. However, i t i s suggested that some aspects do have a value to t h i s study. The three regimes underscore the variety of procedural obligations, t h e i r f l e x i b i l i t y and r e l a t i v e ease of development. Furthermore, they are i l l u s t r a t i v e of an increasing willingness among states to cooperate i n the conservation and exploitation of shared resources as i t becomes clear that i t i s i n th e i r own inte r e s t s to do so. In considering the value of the studies conducted of cooperative obligations i n the f i e l d of p o l l u t i o n , r i v e r s and straddling deposits of hydrocarbons, a few general propositions may be made. The studies w i l l not permit us to unequivocally e s t a b l i s h the cooperative obligations imposed on both Canada and the United States. This i s too much to hope for at t h i s stage. Rather, t h e i r value - 195 -w i l l be more to suggest directions that the two states ought to take. Furthermore, the study may indicate emerging rules of public i n t e r n a t i o n a l law. In order that an examination of these three studies reveal p o t e n t i a l l y applicable rules of international law to the s p e c i f i c case i n hand, i t i s ess e n t i a l that one should be able to formulate the rules at a l e v e l of abstraction going beyond the s p e c i f i c resource i n question. It i s at t h i s stage that the U.N.E.P. p r i n c i p l e s are of pa r t i c u l a r importance. It i s now intended to consider how these studies may be applied to the case study of the i n t e r n a t i o n a l l y migratory barren ground Caribou herd of North America, and the proposal for an inte r n a t i o n a l w i l d l i f e range. F i r s t l y , however, a b r i e f survey w i l l be made of the substantive l e g a l p r i n c i p l e s concerned with migratory species and international ecosystems. 12 2. Substantive P r i n c i p l e s J u r i s t s have given l i t t l e attention to the problems posed by migratory species apart from species which may be found within the common spaces. Such p r i n c i p l e s have no general application because they r e l a t e s t r i c t l y to the j u r i d i c a l status of the commons. C y r i l l e de Klemm, one of the few - 196 -authors who has written on the subject of migratory animals, appears to believe that general p r i n c i p l e s of international 13 law have nothing relevant to say. At the very least i t can be argued that t h i s i s no longer the case i f i t ever was. Two b r i e f arguments w i l l be made on the substantive l e v e l i n support of t h i s notion. Although conceptions of j o i n t property i n international law are weak (and t h i s factor alone may explain the emphasis that needs to be placed on procedural obligations), the argument fordeveloping such a theory has p a r t i c u l a r force here. If a migratory species spends a proportion of i t s l i f e within the j u r i s d i c t i o n of two or more states and derives sustenance from the resources of each of those states, then each state has a claim to some preference i n 14 harvesting (and perhaps even to a share of the crop) and, more on the procedural l e v e l , a claim to be consulted by co-sharing states on questions of u t i l i z a t i o n and conservation. The second part of t h i s proposition i s based on the d i a l e c t i c tension of the sovereign r i g h t of nations to exp l o i t t h e i r own resources on the one hand and, on the other, the duty of states to ensure that a c t i v i t i e s within t h e i r j u r i s d i c t i o n do not cause damage to the environment of other states. The d i a l e c t i c i s enshrined i n P r i n c i p l e 21 of the Stockholm Declaration, and P r i n c i p l e 3 of the 16 U.N. Charter of Economic Rights and Duties of States. Furthermore, while the "right" has a r e l a t i v e l y recent history, the corresponding duty i s of more emminent stock. The duty has been recognized i n some form i n 17 18 the T r a i l Smelter Case, the Corfu Channel Case, and 19 the Lac Lanoux Case. The ex p l o i t a t i o n of a migratory resource beyond sustainable y i e l d l e v e l s , or the extensive destruction of es s e n t i a l habitat would, to take but two examples, c l e a r l y cause substantial damage to the interests of the other host state of the species. Therefore, the duty discussed above would seem to have some clear application to migratory species. Furthermore, i t i s suggested that t h i s second branch of the argument may be consistently applied to international ecosystems. It i s appropriate at t h i s stage to mention the International Convention on the Conservation of Migratory Species of 20 Wild Animals. This i s a framework convention laying down the general p r i n c i p l e s which states should take into consideration, and encouraging Range States to enter into agreements to conserve s p e c i f i c migratory species. The Convention has not yet entered into force or been r a t i f i e d by either Canada or the United States. - 198 -3. PROCEDURAL OBLIGATIONS  A. The Duty to Notify In t h i s section i t i s intended to consider whether there i s a duty upon each state to n o t i f y the other of projects which may/will have an e f f e c t (or substantial effect) on the Caribou and/or the ecosystem of the Yukon/Alaska region. Consideration w i l l be given to the scope of that duty, in p a r t i c u l a r whether i t extends to a duty to supply further information i n response to a request. The sorts of projects that could be anticipated would include: Dempster Highway, o i l and gas pipelines and hydrocarbon and mineral exploration and exploitation. Other examples with an impact of a more cumulative nature might be mentioned such as an increase .. . . 21 i n tourism. The value of n o t i f i c a t i o n by the proponent state of an anticipated project i s clear. It permits an affected state to evaluate the impact of the project on the shared resource. This might lead i t to the conclusion that the l e v e l of impact i s either acceptable or unacceptable, that a change i n routing might be preferable, or that the project would be acceptable only i f c e r t a i n mitigating steps were undertaken. Many other permutations can be envisaged. It was concluded i n the chapter on international r i v e r basins that there was a duty upon the i n i t i a t i n g state to give co-basin states notice of projects which might subs t a n t i a l l y a f f e c t t h e i r i n t e r e s t s . There was some support for the view - 199 -that there was a duty to n o t i f y even i f the e f f e c t was not substantial. If the j u s t i f i c a t i o n for the l a s t statement i s that i t should be l e f t to the affected state to determine what substantially a f f e c t s t h e i r i n t e r e s t s , i t i s arguable that t h i s should apply with even greater force to the case in question. While i t i s usually f e a s i b l e to estimate the reduction or change i n flow caused by the construction of a dam, there i s l i t t l e c ertainty of the e f f e c t the building of a pipeline or highway, for example, w i l l have on a migratory species of Caribou. Furthermore, the cumulative impact of various projects over time may well be substantial although the impact of each i n d i v i d u a l project may be i n s i g n i f i c a n t . Affected states ought to have the opportunity to evaluate these questions for themselves. It i s suggested that the relevant analogous s i t u a t i o n i n the case of straddling hydrocarbon deposits i s the question of the duty to n o t i f y affected states of the discovery of a straddling deposit. In the e a r l i e r discussion of t h i s point, reliance was placed upon the extensive and nearly universal practice of states i n making provision for the discovery of straddling deposits at the time of continental shelf delimitation. It was pointed out that while t h i s practice would not yet be characterized as customary inte r n a t i o n a l law, the near unanimity i s i n d i c a t i v e of an emerging norm. Furthermore, the practice appears to assume, without s p e c i f i c a l l y requiring i t , that discovering states would n o t i f y affected states of a discovery. The - 200 -j u s t i f i c a t i o n for t h i s practice i s that exploratory and e x p l o i t i v e d r i l l i n g may prejudice parties claiming a share of the straddling deposit. At a l e v e l of generality, i t i s submitted that the problem may be stated thus: i s there an obligation upon a proponent state to n o t i f y affected states of a c t i v i t i e s which impact on a shared resource to the p o t e n t i a l prejudice of such states? Stated i n t h i s manner, the relevance of the analogy to the case study i s c l e a r . For the example of p o l l u t i o n , i t seems useful to highlight two issues - f i r s t l y , the question of n o t i f y i n g affected states upon the discharge of noxious substances and secondly, the question of whether or not there i s a duty to inform affected states of a project which w i l l increase p o l l u t i o n l e v e l s i n neighbouring states. Both questions may be stated more generally. F i r s t l y , what i s the procedural duty of a state to i t s neighbours i n respect of an a c t i v i t y within i t s j u r i s d i c t i o n which, creates a hazard i n another j u r i s d i c t i o n ? Secondly, i s there a duty to n o t i f y affected states of a project which w i l l have deleterious e f f e c t s on such state? The f i r s t question, which w i l l be dealt with i n d e t a i l l a t e r , may be answered here by stating that by analogy from the 22 Corfu Channel Case, international law does recognize such a duty. By contrast, the second proposition may only be associated with a strong state practice, confined to the developed f i r s t world. - 201 -F i n a l l y , the U.N.E.P. p r i n c i p l e s , which are of a much more general nature, c l e a r l y recognize the need for n o t i f i c a t i o n . This survey suggests a growing recognition of procedural obligations i n questions of shared natural resources. A cl e a r o b l i g a t i o n can be i d e n t i f i e d i n r i v e r basin regimes to n o t i f y i f there i s a r i s k of substantial damage, and a strong though regional practice can be i d e n t i f i e d for transfrontier. p o l l u t i o n and hydrocarbon deposit regimes.. It i s suggested that these factors, plus the c a t a l y t i c r ole of U.N.E.P.'s p r i n c i p l e s , j u s t i f y the conclusion that Canada and the United States are under an i n t e r n a t i o n a l l e g a l obligation to n o t i f y the other state of a project which may have a substantial detrimental e f f e c t , either on the migratory herd, or the transnational ecosystem. Practice suggests that some of the most important present threats to the herd, such as the Dempster Highway, were begun long before the environment became a popular cause. That p a r t i c u l a r project was never even assessed for i t s e f f e c t s within Canada alone. Now many of the projects under recent consideration which may have the most serious e f f e c t on the Caribou and the ecosystem involve both Canada and the United States, such as the proposed Alaska North Slope to Mackenzie Delta o i l p i p e l i n e . Others remain national i n character, though with international consequences, such as the proposed Dempster Lateral gas p i p e l i n e , and i t i s important that the other state be n o t i f i e d of these, projects. - 202 -Considerable attention has been given to the question of the timing and the content of the n o t i f i c a t i o n . This w i l l vary with the subject matter of the project, but state practice and commonsense suggests that several general statements may be made. The n o t i f i c a t i o n should be i n s u f f i c i e n t time to give the affected state the opportunity to carry out an evaluation. The n o t i f i c a t i o n should contain s u f f i c i e n t detailed and pertinent information to permit such an evaluation to be made. There i s no obliga t i o n to convey information and material which i s c o n f i d e n t i a l i n the proponent state. The relevant c r i t e r i a may be summed up by saying that the n o t i f i c a t i o n should be " e f f e c t i v e " . Because d i f f e r e n t factual situations require d i f f e r e n t n o t i f i c a t i o n content, i t i s d i f f i c u l t to be more s p e c i f i c and supplementary obligations may therefore be necessary. For example, the proponent state ought to provide such further information requested by the affected state as i s reasonable and provided that the request i s made i n good f a i t h , without the intention of simply delaying the project. In the present example, i n i t i a l n o t i f i c a t i o n might be expected to d e t a i l such matters as the area affected by the project, the impact, the project i s anticipated to have on the herd and the ecosystem, and an assessment of i t s cumulative e f f e c t on both. The affected state might well be j u s t i f i e d i n requesting such further information as the - 203 -time of year that construction i s expected to take place. N o t i f i c a t i o n , i n t h i s sense, does not extend to the preparation of a complete impact assessment of the proposed project. However, i t would appear that i n certain f i e l d s t h i s i s the d i r e c t i o n i n which state practice i s moving. Certainly domestically more and more states are following the example of the United States and requiring that environmental impact assessments are carr i e d out for projects which may have a substantial e f f e c t on the environment. In addition, the discussion of tr a n s f r o n t i e r p o l l u t i o n noted that the O.E.C.D., the Council of Europe and the E.E.C. were beginning to at least recommend that Impact assessments be car r i e d out and, furthermore, that they should take into account environmental Impacts of proposed projects in other affected states. Furthermore, the U.N.E.P. p r i n c i p l e s recognize the general e f f i c i e n c y of impact assessments in the f i e l d of shared natural resources. In the context of the case study, the practice of the two involved states merits consideration. The primary requirement for impact assessment i n the United States i s derived from the National 23 Environmental Policy Act-19.69. The question of whether or not t h i s applies to e x t r a t e r r i t o r i a l environmental 24 e f f e c t s i s a moot point, but more recently, President Carter promulgated an executive order e n t i t l e d "Environmental E f f e c t s 25 Abroad of Major Federal Actions". This delineates the scope and procedures for environmental reviews for speci f i e d classes of government actions, which have e f f e c t s abroad. - 204 -In Canada, the requirement of an environmental impact assessment i s more obscure and, consequently, the d i f f i c u l t i e s of e x t r a t e r r i t o r i a l assessment have not been f u l l y aired. The main federal assessment procedure i s the non-statutory, Federal Environmental Assessment and Review Process (EARP) i n i t i a t e d by the r e f e r r a l of a p a r t i c u l a r project to the Minister of Environment by a government department or agency. Thus f a r , i n the published reports of EARP, there have been no examples of e x t r a t e r r i t o r i a l assessments. One other federal assessment procedure which may be relevant i s the requirement under the procedures of the National Energy Board that an application for a c e r t i f i c a t e of convenience and necessity, for example a p i p e l i n e , should include an environmental impact assessment. However, the N.E.B. only takes cognizance of the environmental e f f e c t s of projects within Canada. Thus, although the practice of requiring impact assessments i s becomming more widespread, i t i s u n l i k e l y that either state would consider i t s e l f bound to prepare an assessment as a c o r o l l a r y of n o t i f i c a t i o n before undertaking a project which could a f f e c t the ingegrity of the Caribou herd or the ecosystem. It does not follow from a conclusion that there i s an obligation to n o t i f y that neither Canada nor the United States should not go ahead with a p o t e n t i a l l y detrimental - 205 -project u n t i l the other state has been n o t i f i e d and i t s consent given. To conclude t h i s would be an unacceptable infringement on t e r r i t o r i a l sovreignty, and might give the affected state an e f f e c t i v e veto power i f prolonged consultation resulted from n o t i f i c a t i o n . In international r i v e r basin law, i t appears to be the case that i f notice i s not given, the p a r t i c u l a r project w i l l not be accorded the weight normally attached to temporal p r i o r i t y of use 27 of the waters of a r i v e r . Furthermore, a state need only be given reasonable time to respond to n o t i f i c a t i o n . This reasoning may be applied to the case study. A reasonable period i n which to reply might be determined by the time an affected state would reasonably take to assess the impact of the project and consider alternatives and mitigative measures. This w i l l be a question of fact . F a i l u r e to n o t i f y may be considered an international d e l i c t with l i a b i l i t y to pay damages. Furthermore, i t may be argued that a f a i l u r e to give notice of a project may be taken into consideration i n the equitable apportionment of the Caribou harvest. If a state i s n o t i f i e d of a project which may have a detrimental e f f e c t within i t s t e r r i t o r y , i t w i l l usually wish to consult the proponent state. This seems to be well recognized i n state practice i n the three areas considered, and can be seen as part and parcel of the request for - 206 -further information. Indeed the U.N.E.P. guidelines deal with both issues under the same p r i n c i p l e . To a c e r t a i n extent there i s an overlap here with the duty to negotiate. A consideration of the studied regimes raises the question of whom the proponent should n o t i f y and consult with. The obvious answer i s that the one federal government should 2 8 n o t i f y and consult with the other. This t r a d i t i o n a l view derives support from international r i v e r basin law and the p r i n c i p l e s pertinent to tr a n s f r o n t i e r petroleum deposits. However, a consideration of state practice for t r a n s f r o n t i e r p o l l u t i o n suggests other p o s s i b i l i t i e s . In that f i e l d (partly because of the emphasis on private law remedies) there appears to be a developing state practice providing for the n o t i f i c a t i o n of l o c a l a u t h o r i t i e s . In conjunction with the p r i n c i p l e s of non-discrimination and equal access, private remedies are f a c i l i t a t e d and l o c a l l y affected groups are given the chance to voice t h e i r objections. From a democratic point of view the step i s to be applauded, and i t i s suggested that i t could be of p a r t i c u l a r relevance here. The areas of Alaska and the Yukon under consideration are populated by native people (Inuit and Indian) who, to a high degree, are dependent for sustenance on the natural environment•and,in p a r t i c u l a r , upon the Caribou resource. They are therefore the people most v i t a l l y affected by - 207 -any project, either United States or Canadian, which could have a detrimental impact upon the region. At present, following the Berger Inquiry, these peoples are experiencing an upsurge i n p o l i t i c a l awareness and are demanding e f f e c t i v e p a r t i c i p a t i o n i n the governmental process. While there i s probably no l e g a l o b l i g a t i o n , i t i s suggested that i t i s preferable that these peoples, being the most d i r e c t l y affected, should also be given notice of p o t e n t i a l l y damaging projects. Furthermore, i f a precedent i s required, i t i s submitted that state practice on t r a n s f r o n t i e r p o l l u t i o n provides one. B. Is There a Duty to Exchange Information on the Common Resource?  The routine exchange of information can be distinguished from the obligation to n o t i f y . The two have d i f f e r e n t objectives. The l a t t e r i s concerned to f a c i l i t a t e the assessment of the impact of a p a r t i c u l a r project. The former i s aimed at the accumulation of data which may suggest steps that can be taken to optimize u t i l i z a t i o n of a resource, or controls that may be devised to reduce p o l l u t i o n . In the case study consideration may be given to information on the habitat and population dynamics of the Caribou, methods of predator control, the balance between d i f f e r e n t elements of the ecosystems, and the harvest l e v e l s of native people. Monitoring of habitat may provide further cause for the exchange of information as may the e f f e c t on the ecosystem and the Caribou of major projects which - 20.8 -have been permitted to go ahead. The practice of exchanging information seems to be widespread. States recognize i t s value. I t enables them to accumulate more data about a resource for which they w i l l l i k e l y have only incomplete, national knowledge. Furthermore, exchange may help avoid the wasteful duplications of research, and foster international cooperation without encroaching i n any great way upon national prerogatives and sovereignty. Indeed, cooperation at the s c i e n t i f i c 29 l e v e l may well lead to p o l i t i c a l cooperation. In the regimes that were, studied, state practice for both, t r a n s f r o n t i e r p o l l u t i o n and straddling petroleum deposits was concentrated i n the f i r s t world. However, the universal a p p l i c a b i l i t y of the practice of information exchange i s recognized i n international r i v e r basin law and by U.N.E.P. State practice with respect to straddling petroleum deposits appears to recognize the value of the exchange of information at several stages; a practice which may present useful analogies for the case study. At the f i r s t l e v e l , there 30 was some exchange of information on exploration a c t i v i t i e s . The limited nature of t h i s practice, however, would c e r t a i n l y not permit the conclusion that states are under a customary leg a l o b l i g a t i o n . Because offshore d r i l l i n g i n boundary areas i s a modern development, the same..observation must also be made of the practice of continuing to exchange information - 209 -during the exploitation phase. Information exchange relates to rates of extraction and discovery of new deposits. The main importance of these examples i s the recognition of the value of information exchange at both the pre-exploitation and exp l o i t a t i o n stage. In the case study the analogies would be with the exchange of information on Caribou l i f e cycle, and movement patterns as well as harvesting l e v e l s . Although state practice on tr a n s f r o n t i e r p o l l u t i o n i s s i m i l a r l y concentrated i n the f i r s t world, i t d i f f e r s i n being more widespread, more highly developed and much more detailed on the question of exchange of information. The most recent state practice i s concerned not with whether information should be exchanged, but with the q u a l i t y , timing and compatibility of the exchange. In Europe, s p e c i f i c a l l y , and the F i r s t World generally, p o l l u t i o n information exchange i s well recognized. Both the O.E.C.D. and the E.E.C. have developed detailed rules on the subject. On a global l e v e l , there i s G.E.M.S., but the regional emphasis of state practice v i t i a t e s any idea of a customary norm. The practice suggests that the data r e l a t i n g to p o l l u t i o n should be exchanged at regular i n t e r v a l s and soon enough af t e r being obtained that they may be of use to the states concerned. More recently, states have been entering into negotiations to attempt to ensure that the measurements taken and exchanged are compatible with one another. - 210 -The p r i n c i p l e of the exchange of information i s well recognized i n r i v e r basin law. It i s supported by the Lac Lanoux . Case, b i l a t e r a l t r e a t i e s and i n f l u e n t i a l groupings of and in d i v i d u a l j u r i s t s . C l e a rly the s p e c i f i c information exchanged i n each of these separate f i e l d s w i l l depend very much upon the physical c h a r a c t e r i s t i c s of the resource in question, but several general observations may be made. F i r s t l y , the value of exchanging (and to a lesser extent, the duty to exchange) information i s widely recognized i n resource issues. Secondly, the material that states may request should be limited by the c r i t e r i a of relevance and reasonableness. Thirdly, information should be exchanged in s u f f i c i e n t time to permit i t s use. F i n a l l y , the information should be r e a d i l y available. I t would be unreasonable to suggest that a state should go to considerable expense to acquire information s p e c i f i c a l l y to communicate i t to affected states. This l a t t e r observation i s supported by P r i n c i p l e 5 of the U.N.E.P. draft p r i n c i p l e s , which provides for the regular exchange of information i f practicable. The P r i n c i p l e i s limited to environmental aspects of shared resources, but as has been shown, state practice c e r t a i n l y does address the issues of exploration and ex p l o i t a t i o n . In natural resource e x p l o i t a t i o n , states frequently deal with the issue of information exchange i n d i r e c t l y , through - 2.11. -the formation of j o i n t commissions. This i s p a r t i c u l a r l y common in f i s h e r i e s . Such i n s t i t u t i o n s may or may not have an independent research c a p a b i l i t y , but i f not, i t i s normal for a l l states involved to supply the data on which a management program may be based. In conclusion, i t i s possible to state that the value of information exchange i s widely accepted. At present there i s considerable cooperation between s p e c i a l i s t Caribou b i o l o g i s t s i n Canada and the United States and a j o i n t working 31 group has been convened. Obligations to exchange information though, are not so well developed. In the f i e l d of r i v e r basins a consistent state practice appears to be supported by the re q u i s i t e opinio J u r i s , but i n other f i e l d s i t i s not yet even possible to i d e n t i f y a consistent, global state practice. Current cooperation on the Caribou resource at the expert l e v e l appears to be on the basis that an international herd can only be e f f i c i e n t l y and e f f e c t i v e l y studied i n t e r n a t i o n a l l y . I t does not appear that states exchange information out of a sense of obl i g a t i o n . C. The Duty to Notify of Sudden Fluctuations i n Resource Levels and the Use of Joint Commissions The two major procedural obligations i n common resource ex p l o i t a t i o n have now been dealt with, but several others may be considered which are concerned with the more precise and detailed delineation of state obligations i n s p e c i f i c cases. For example, i s there a duty to n o t i f y affected - 212 -states of sudden fluctuations i n the common resource? In the case study the reference would be to fluc t u a t i o n i n numbers of the Caribou or the qu a l i t y of the ecosystem. Or, i s there a duty to develop a j o i n t management plan or j o i n t commission for the common resource? Associated with t h i s i s the issue of whether there i s a duty to enter into negotiations concerning the harvest l e v e l s of the states party to the common resource. It i s intended to develop these more detailed points i n t h i s section. Sudden fluctuations in the Caribou resource might be caused by l i n e a r developments such as highways or pipelines, over-harvest and lack of predator control, or something as obvious as low recruitment lev e l s to the herd because of poor calving success rate due to harsh weather. The consequences of sudden downward fluctuations hardly need further elucidation. Unless comparable reductions are made in harvest l e v e l s , the decline may be compounded due to harvesting beyond M.S.Y. It i s therefore important that information on fluctuations be communicated to a l l parties to permit them to take remedial action such as imposing emergency r e s t r i c t i o n s on takes, or the control of predators. These observations would seem to apply, at least i n part, to a l l shared renewable resources. The dangers of over-exploitation are inherent i n the reduction of the primary stock. Some modification however i s necessary for the three studied regimes, but i t i s suggested that valuable analogies may s t i l l be drawn. In the case of both r i v e r basins and t r a n s f r o n t i e r p o l l u t i o n , the relevant analogy would be with a natural disaster or a dangerous release, for example, the breach of a dam or the release of a p a r t i c u l a r l y noxious substance. The analogy for common petroleum deposits i s somewhat d i f f e r e n t . In that f i e l d the relevant analogies would be the d r a s t i c reduction of pressure i n a reservoir, or the discovery that another major f i e l d i s inter-connected with a deposit" which, straddles a f r o n t i e r . Phrased more abstractly, the question to be discussed i s : i s there a duty upon states party to a common resource to no t i f y each other of a change of status i n the resource which may seriously a f f e c t the enjoyment of that resource or cause substantial damage to another state? I t should be noted that t h i s sort of issue i s covered to some extent by the routine exchange of information on the condition of the resource. The distinguishing feature i s the need for expedited communication i n the "emergency" si t u a t i o n s . This procedural category may also be distinguished from the p r i o r n o t i f i c a t i o n discussed e a r l i e r . Of the essence there was that n o t i f i c a t i o n was p r i o r to development. Here the question i s ex post facto n o t i f i c a t i o n and i s not therefore subject to the same questions of infringement of the sovereign rights of states to exploit t h e i r resources as they think f i t . It i s perhaps for t h i s l a t t e r reason that there appears to be strong support i n the general p r i n c i p l e s of int e r n a t i o n a l law, for the view that states should n o t i f y other states - 214 -of the creation of a dangerous si t u a t i o n which may a f f e c t the legitimate interests of those states. This seems to be the conclusion that may be drawn from the finding 32 of the I.C.J, i n the Corfu Channel Case, that Albania was under an obligation to n o t i f y "for the benefit of shipping i n general, the existence of a minefield i n Albanian t e r r i t o r i a l waters". This obli g a t i o n stemmed from several general p r i n c i p l e s including "elementary considerations of humanity". The general nature of the obligation suggests that the decision may be given a wider application. This was the conclusion reached i n the discussion of tr a n s f r o n t i e r p o l l u t i o n . Here, however, i t i s essential to argue for an even wider in t e r p r e t a t i o n . Can the concept of a "dangerous s i t u a t i o n " be taken to refer to a substantial threat to the continued e x p l o i t a t i o n of the shared resource? At present, one can only suggest t h i s as a possible interpretation; there i s no d i r e c t authority for the proposition. The claim must rest on the view that the Corfu Channel p r i n c i p l e i s capable of wide interpretation and has been applied i n both r i v e r basin and tr a n s f r o n t i e r p o l l u t i o n law. The U.N.E.P. p r i n c i p l e s are rather vague on t h i s point. P r i n c i p l e 9 c e r t a i n l y acknowledges a duty to inform other states which may be affected by an emergency si t u a t i o n ; which i s p a r t i c u l a r l y strong phraseology for •33 the P r i n c i p l e s . The P r i n c i p l e appears to deal with both man-made and natural situations, but the danger that i s envisaged i s a danger to the general environment a r i s i n g - 215 -from the u t i l i z a t i o n of the resource and not the danger to the shared resource i t s e l f , either because of exploitation or because of factors external to the resource. Once again, the f i e l d of petroleum deposits i s rather sparce in examples. The most one can conclude from the e a r l i e r analysis of the regime i s that i n drawing up an expl o i t a t i o n agreement, states may make provision for the mutual n o t i f i c a t i o n of events which may have a substantial bearing upon the future e x p l o i t a t i o n , control and ownership of the straddling deposit. State practice i n r i v e r basin regimes and i n t r a n s f r o n t i e r p o l l u t i o n was recognized to be strong. This i s supported by general p r i n c i p l e s derived from high authority. Consequently, the c r y p t i c comments of the U.N.E.P. p r i n c i p l e s and the weak practice i n tr a n s f r o n t i e r petroleum deposits do not af f e c t the conclusion that both Canada and the United States are under an obligation to n o t i f y the other state of sudden fluctuations i n resource lev e l s that come to t h e i r actual notice. D. The Duty to Negotiate A prerequisite to the establishment of a j o i n t commission i s i n t e r s t a t e negotiation. Negotiation also adds meaning to the obligation to give notice. Once a state has received notice of a major project, i t w i l l normally wish to at least discuss i t , i f not suggest a l t e r a t i o n s . Negotiation i s not as v i t a l to the routine exchange of - 216 -information or n o t i f i c a t i o n of a hazard, as these have a value i n and of themselves. In t h i s section, the extent of the duty to negotiate concerning common property resources w i l l be examined, keeping i n mind the following issues which appear to be p a r t i c u l a r l y relevant to the case study: Is there an obligation upon the United States and Canada to negotiate, concerning the development of a common habitat protection plan for the Caribou, harvest l e v e l s on either side of the border, future developments within the ecosystem which may have a substantial e f f e c t on the shared resource, and concerning the establishment of a jo i n t management plan and j o i n t commission for the Caribou and the region? A l l these questions address s p e c i f i c problems related to the shared resource. They w i l l therefore be dealt with under the one question: Is there an obliga t i o n in international law to negotiate on matters concerning the exploitation and conservation of shared natural resources? The recent development and high value of continental shelf hydrocarbon deposits has led to the remarkably consistent practice of states making provision for the discovery of straddling hydrocarbon deposits i n delimitation agreements of the continental shelf. Typical of these provisions was the Anglo-Norwegian Agreement which provides that i n the event of the discovery of a straddling deposit, the "Contracting Parties s h a l l . . . seek to reach agreement as to the manner in which the structure or f i e l d s h a l l be most - 217 -e f f e c t i v e l y exploited and the manner in which the proceeds 34 deriving therefrom s h a l l be apportioned." Thus, t h i s agreement and the commonalty of such agreements, provides for the negotiation of methods of apportionment and ex p l o i t a t i o n . However, although extensive state practice was recognized, the few exceptions In conjunction with the absence of opinio j u r i s do not permit the conclusion that there i s anything more than an emerging norm that states should negotiate on such matters. It w i l l be r e c a l l e d that consistent state practice over a prolonged period of time i n r i v e r basin development permitted the stronger conclusion that there i s an obligation to consult and negotiate. This obligation, however, i s probably limited to the same circumstances i n which n o t i f i c a t i o n i s required; that i s to say, a project which might have a substantial e f f e c t on the u t i l i z a t i o n of the r i v e r by co-basin states. The U.N.E.P. P r i n c i p l e s f a i l to d i r e c t l y recommend negotiation. However, i t i s probably implied by P r i n c i p l e 5 which suggests that states should "engage i n consultations on a regular basis" on the environmental aspects of a shared natural resource. Furthermore, P r i n c i p l e 11 reaffirms the a p p l i c a b i l i t y of the relevant provisions of the U.N. Charter, notably A r t i c l e 33 and A r t i c l e 2(3). The l i m i t a t i o n s of these provisions In r e l a t i o n to shared resources has already been discussed in the context of r i v e r basins. I t i s submitted that these l i m i t a t i o n s apply to the present case study. In . - 218 p a r t i c u l a r , the esse n t i a l precondition of A r t i c l e 33 i s that there should be a dispute i n existence "the continuance of which Is l i k e l y to endanger the maintenance of international peace and security". This condition i s c e r t a i n l y not yet met by either branch of the case study. It i s further suggested that an attempted application of A r t i c l e 33 r e a l l y misconceives the problem. The aim of negotiation on shared natural resources i s to prevent a dispute a r i s i n g ; to provide as far as possible for continuous dialogue making possible "conservation and harmonious u t i l i z a t i o n " . The fac t that l e g a l obligations to negotiate may be limited to major projects having a substantial e f f e c t i s unfortunate rather than desirable. Reference may also be had to two other natural resource areas to strengthen the case for an obligation to negotiate. F i r s t l y , i t i s worth noting the conclusion from the study of t r a n s f r o n t i e r p o l l u t i o n . There i t was stated that while European state practice on consultation and negotiation was well developed, one could not i d e n t i f y a norm of international law because of the regional emphasis. Secondly, and much more importantly, consideration w i l l be given to the relevant p r i n c i p l e s stemming from the expl o i t a t i o n of international fishery resources. Most of the world's common property f i s h e r i e s are now subject to some form of negotiated agreement. P r a c t i c a l i t i e s have demanded such cooperation, but i t i s also suggested that negotiation i s required by international law. The 1958 Convention on - 219 -Fishing and Conservation of the L i v i n g Resources of the High 35 Seas makes two provisions for negotiations. F i r s t l y , i n A r t i c l e 4, states involved i n f i s h i n g the same stock " s h a l l , at the request of any of them, enter into negotiations with a view to prescribing by agreement... the necessary measures for the conservation of the l i v i n g resources affected". Secondly, i n A r t i c l e 6 which recognizes the p r e f e r e n t i a l r i g h t s of coastal states, states f i s h i n g i n coastal areas are, at the request of the coastal states, to "enter into negotiations". Over t h i r t y states have since r a t i f i e d the Convention. In the Fisheries 37 J u r i s d i c t i o n Case, the International Court had reason to determine the applicable general p r i n c i p l e s of law r e l a t i n g to p r e f e r e n t i a l coastal claims, Iceland not having r a t i f i e d the Convention. The Court appeared to accept the concept of p r e f e r e n t i a l right subject to the legitimate claims of other 3 8 states. The majority recognized that Iceland's p r e f e r e n t i a l claim was j u s t i f i e d on the basis of special dependence, and the United Kingdom's claim on the basis of h i s t o r i c usage, important to the economy of the country. The "rights" of the two 39 40 states were "concurrent" and co-existing. Iceland's claim was not therefore opposable per se against the United Kingdom. It follows from t h i s that parties with equally legitimate rights or claims are under "a duty to have due regard to the rights of other states and the needs of 41 conservation for the benefit of a l l " . How, then, should competing claims be resolved? The parties c l e a r l y have an obligation to keep the resource under review and examine together available information, but - 220 -(t);he most appropriate method for the solution of the dispute i s c l e a r l y that of negotiation. Its objective should be the delimitation of the rights and i n t e r e s t s of the Parties, the p r e f e r e n t i a l r i g h t s of the coastal state on the one hand and the rights of the Applicant on the other, to balance and regulate equitably questions such as those of c a t c h - l i m i t a t i o n , share al l o c a t i o n s and related r e s t r i c t i o n s covering areas closed to f i s h i n g , number and type of vessels allowed and forms of control of the agreed provisions... 42 It i s i m p l i c i t i n the concept of p r e f e r e n t i a l ri g h t s that negotiations are required i n order to define or delimit the extend of those r i g h t s . . . 43 F i n a l l y , and most importantly, the Court stated that "(T)he obligation to negotiate thus flows from the very nature of the respective rights of the P a r t i e s ^ The general language of the Court w i l l sustain a wide interpretation. It i s clear that the Court was not confining i t s e l f either to an interpretation of the F i s h e r i e s Convention or A r t i c l e 33 of the U.N. Charter. I t i s therefore suggested that the opinion of the majority may be taken as authority for the following p r i n c i p l e : I f two or more states have legitimate claims to the use of a common property natural resource, then the parameters of those claims and the obligations stemming from them, s h a l l be peacefully determined by those states, by negotiation or such other method as may be mutually acceptable. This p r i n c i p l e may be applied to the case study. The legitimate claims of the United States and Canada stem from the shared nature of the ecosystem and the Caribou herd. Part of the ecosystem - 221 -i s located i n Alaska and part i n the Yukon and, s i m i l a r l y , the Caribou spends part of i t s time, and derives i t s e s s e n t i a l sustenance, from the t e r r i t o r y of each. For reasons already noted i n further d e t a i l , i t would appear that both states have concurrent and co-existing rights and duties related to the herd and the ecosystem which must be defined by negotiation. P a r a l l e l s with other natural resource regimes support t h i s conclusion. Having established an obligation on the United States and Canada to negotiate which i s wider than the s p e c i f i c 45 . conclusion for international r i v e r basins, i t i s necessary to point out once again the extent and l i m i t s of the ob l i g a t i o n . This was discussed early i n the r i v e r basins chapter as being generally applicable to the whole paper, so only the conclusions w i l l be stated here. The duty i s a duty to negotiate i n good f a i t h with the aim of reaching agreement. I t does not extend to an o b l i g a t i o n to reach agreement or to accept reasonable proposals of the other party. In the absence of agreement, negotiations need only be ca r r i e d on for a reasonable period of time. What i s reasonable i s a question of fact to be determined in the l i g h t of a l l the relevant circumstances. This l a s t statement indicates the dearth of s o l i d p r i n c i p l e . More s p e c i f i c rules may be developed for each s i t u a t i o n . - 222 -The U.N.E.P. p r i n c i p l e s emphasize the wide role of good f a i t h . P r i n c i p l e 7 applies "the p r i n c i p l e of good f a i t h " and "the s p i r i t of good neighbourliness" to the "exchange of information, n o t i f i c a t i o n , consultations and other forms of cooperation regarding shared natural resources". Nowhere are the two terms used i n P r i n c i p l e 7 defined. I t can be expected that they w i l l vary with the circumstances of the case. It may be argued that i t would be a breach of the obligation of good f a i t h for one state to take u n i l a t e r a l action to the prejudice of the interests of the other state with respect to the shared resource while reasonable negotiations are taking place. In the present instance, such p r e j u d i c i a l action might encompass the harvesting of the Caribou beyond maximum sustained y i e l d l e v e l s , or the development of plans beyond the i n i t i a l f e a s i b i l i t y assessment 46 stage of a l i n e a r development which may seriously i n t e r f e r e with Caribou migration or have a substantial impact on the shared ecosystem. The sanction for f a i l u r e to negotiate i s li m i t e d . I t i s unacceptable to argue that the project should not begin u n t i l reasonable negotiations have been carried out, for t h i s would constitute a severe f e t t e r upon sovereignty. F a i l u r e to negotiate should be seen as an inte r n a t i o n a l d e l i c t for which compensation i n the form of damages might be claimed. - 223 -FOOTNOTES 1. The d r a f t i s a public document having been d i s t r i b u t e d for comment to native groups and interested non-governmental organizations, 14 May 1979. 2. The current estimate seems to be about 100,000 j- 25,000. 3. Surrendi. deBock, Seasonal D i s t r i b u t i o n , Population  Status and Behaviour of the Porcupine Caribou Herd, 1976. This work c o l l e c t s together a l l the b i o l o g i c a l information on the Porcupine Herd. Details of the e f f e c t of the Dempster at 119 et seq. The Highway i t s e l f acts as a physical b a r r i e r to migration, depending on such factors as height of road, slope of embankment, etc. Fast-moving t r a f f i c may lead to panic retreat. 4. See William G. MacLeod, The Dempster Highway, 36-38 (n.d.), and Yukon Ordinance No. 1977/199, which created a no-hunting corridor extending f i v e miles on either side of the highway, except for the period of 15-31 October. This only applies to non-native hunters within the Yukon. 5. See Alaska Highway Pipeline Panel, I n i t i a l Impact Assessment  Dempster Corridor, Executive Summary, e s p e c i a l l y at 9 (n.d.)... 6. Surreridi, & .: deBock, supra, n.3, at 98 et. seq. 7. Connie Hunt et a l . , Wilderness Area: L e g i s l a t i v e Alternatives  for the Establishment of a Wilderness Area i n the Northern  Yukon (n.d.) gives d e t a i l s of mining claims i n the Yukon at 95-101. 8. Thus one can see competition between Parks Canada and C.W.S., and c e r t a i n l y a difference i n emphasis between the W i l d l i f e Service and the Department of Indian and Northern A f f a i r s , see i b i d . , passim. 9. I say "some extent" because i t seems clear that i t i s simply impractical and p o l i t i c a l l y undesirable to suggest creating a reserve large enough to cover the whole of the winter range of the Porcupine Caribou herd. The most that has been suggested i s to draw the southerly l i n e just north of the Porcupine River. Some p a r t i c u l a r l y valuable parts of the winter range might be protected, but the important point i s that the geographical scope of the proposal for international management of the herd i s of necessity wider than the proposal for the w i l d l i f e range. 10. The habitat protection clauses are very weak. 11. The Executive Secretary of UNEP, in his report on shared resources, singled out shared ecosystems as an outstanding example of shared natural resources. See Co-operation i n the F i e l d of the Environment Concerning Natural Resources Shared by Two or More States, Report of the Executive Director, UNEP/ GC/44, 20 February 1975 (hereafter: Report of the Executive  Di r e c t o r ) . - 224 -12. Although relevant p r i n c i p l e s of substantive law have been larg e l y ignored, t h i s i s not the place to develop them. Suffice i t to say that the two arguments submitted outline general trends which may be followed up further. 13. C. de Klemm, The Conservation of Migratory Animals  Through International Law, in A. Utton and D. Henning (eds.) Environmental Pol i c y (1973), 252-258 at 252. " W i l d l i f e i s an i n t e g r a l part of the natural resources of a nation. F u l l sovereign rig h t s over a l l natural resources under present conditions of international law leave states free to use or misuse t h e i r w i l d l i f e as they wish, subject only to any international agreement that may have been concluded on the matter." 14. There i s some analogy between t h i s argument and that put forward by most states of anadromous f i s h stocks at the Third Law of the Sea Conference. The Conference has recognized the p r e f e r e n t i a l r i g h t s of such states, but not sovereign r i g h t s . A r t i c l e 66(1) of the Revised I.C.N.T., supra, n.22, provides that "States in whose r i v e r s anadromous stocks originate s h a l l have the primary i n t e r e s t i n and r e s p o n s i b i l i t y for such stocks." 15. Report of the U.N. Conference on the Human Environment, Stockholm, 5-16 June, 1972, A/Conf. 28/14/Rev.l. 16. G. A. Resolution, 3281 (XXXIX) 12 December 1974, reproduced i n 14 I.L.M. 251 (1975). 17. 3 U.N.R.I.A.A. 1911 and 1938 (1949) at 1965. 18. 1964 I.C.J. Reports, 4> 22. 19. 24 I.L.R. 101 (1957) . 20. Bonn, 23 June 1979, 5 Environmental Policy and Law 156 (1979) . 21. A l l the examples would, of course, have a cumulative e f f e c t . 22. 1949 I.C.J. Reports 4, 22. 23. 42 U.S.C. SS 4321-4361 (1976). 24. See Sanford Gaines, "Environmental E f f e c t s Abroad of  Major Federal'Actions": An Executive Order Ordains a National Policy, 3 Harvard Environmental L.R. 136 (1979). - 225 -25. Executive Order No. 12,114, 44 Fed.Reg. 1957 (1979). The Order i s , however, severely circumscribed i n i t s application. 26. National Energy Board Rules of Practice and Procedure, Part VI S.O.R./72-413 as amended. 27. Helsinki Rules on the Uses of the Waters of International Rivers, adopted by the I.L.A., H e l s i n k i , 20 August 1966, A r t i c l e XXIX(4). Some doubt has been cast on the penal nature of t h i s provision though. 28. In c l a s s i c a l international law, states are the only subjects. A duty on a state to n o t i f y an i n d i v i d u a l would l o g i c a l l y give the i n d i v i d u a l a c o r r e l a t i v e r i g h t to demand n o t i f i c a t i o n . 29.. A clear precedent for t h i s i s the successful Antarctic Treaty, Washington, 1 December 1959, 402 U.N.T.S. 71, which grew d i r e c t l y out of the s c i e n t i f i c cooperation during International Geophysical Year. 30. One reason may be suggested for why i t was not more extensive. Exploration i s usually c a r r i e d out independently by private multinationals. States usually only become v i t a l l y interested in maximizing benefit at the exploration l e v e l . P r i o r to t h i s , t h e i r s e l f - i n t e r e s t s are not s u f f i c i e n t l y motivated. 31. See Lorraine A l l i s o n , Caribou: Management of a V i t a l Resource, in R. E. Keith, J. B. Wright (eds.) Northern Transitions, 212-225 at 212 (.1978. 32. 1949 I.C.J. Reports 4,22, supported by the common law Rylands v Fletcher doctrine, , (.1868) L.R. 3 H.L. 330. 33. The P r i n c i p l e s usually use neutral forms such at " i t i s necessary" or "states should endeavour". 34. London, 10 March 1965, (1965) U.N.T.S. 8043. 35. Geneva, 29 A p r i l 1958, 559 U.N.T.S. 285. 36.. This provision i s s u b s t a n t i a l l y echoed i n A r t i c l e 118 of the Revised I.C.N.T., supra, n.22. 37.. Fisheries J u r i s d i c t i o n (United Kingdom and Iceland),, Merits, Judgement, I.C.J. Reports, 1974, 3. 38. Ibid., at 26. 39. Ibid., at 27. - 226 -40. Ibid., at 30. •41. Ibid., at 31. 42. Ibid. 43 . Ibid. , at 32 . •44. Ibid. 45; I see no reason why t h i s general p r i n c i p l e should not be imported into a l l the natural resource regimes that I have discussed. 46. The point of " i n i t i a l f e a s i b i l i t y assessment" i s chosen because experience of domestic situations suggests that i f an impact assessment i s not c a r r i e d out at the time when the project i s conceived, there w i l l only be a limited chance of influencing the project. - 227 -CONCLUSION The United States and Canada are close neighbours and have generally cooperated on common resource problems. Sometimes they have been a long time reaching agreement as the history of the Great Lakes Water Quality Agreement 1972 shows, but shared interests have usually prevailed over exclusive i n t e r e s t s . Frequently though, discussions only begin when a c r i t i c a l problem i s perceived. Cooperation i s on an ad hoc basis with no attempt to develop consistent uni v e r s a l l y applicable procedures for a l l shared resource problems. Thus, discussions on the P a c i f i c Coast on the conservation of halibut and salmon stocks only began when d r a s t i c reductions in harvest lev e l s forced the taking of j o i n t action. Ideally j o i n t management of shared resources should begin well before a c r i t i c a l stage i s reached, and should be carried out so as to benefit both p a r t i e s . It has been the contention of t h i s thesis that c e r t a i n procedural obligations r e s u l t from the factual s i t u a t i o n i n which two or more states share a natural resource. General p r i n c i p l e s concerning the duty to n o t i f y , to exchange information, and to consult and negotiate may be derived from well developed resource regimes and applied to s p e c i f i c situations such as a shared A r c t i c ecosystem or a migratory animal stock. These are not p r i n c i p l e s which are only applicable i n c r i t i c a l s i t u a t i o n s , but rather they mandate cooperation on shared resources i n a l l situ a t i o n s . - 228 -The obligation to cooperate does not present an unreasonable f e t t e r upon sovereignty. P r i n c i p l e 21 of Stockholm recognizes that i n an interdependent world, sovereignty no longer ( i f i t ever did) implies an absolute r i g h t of states to do as they please with t h e i r t e r r i t o r y and resources. This conception of state r e s p o n s i b i l i t y has an immediately p r a c t i c a l application to the problem of "shared" resources, for how can two states possibly claim absolute rig h t s over a resource which may legitimately be interfered with by another state? The detailed research of t h i s t h esis, however, supports more s p e c i f i c conclusions. F i r s t l y , there i s an obli g a t i o n upon states sharing a resource to n o t i f y other states of planned projects which may sub s t a n t i a l l y a f f e c t the enjoyment of the shared resource by other states. There i s some support for the view that the e f f e c t need not be substantial. The notice should be e f f e c t i v e . Secondly, the value of exchanging information on shared resources i s global l y recognized i n a l l resource f i e l d s . However, i t i s only i n international r i v e r basins that an obligation to exchange information i s accepted. In other regimes a strong state practice i s unsupported by the r e q u i s i t e opinio J u r i s . Thirdly, the common int e r e s t of states i n being n o t i f i e d of natural disasters which a f f e c t the shared resource has - 229 -led to the recognition of a duty to n o t i f y i n t h i s s i t u a t i o n . This proposition i s supported by consistent state p r a c t i c e , j u r i s t i c opinion and general p r i n c i p l e s of int e r n a t i o n a l law. Fourthly, there i s a duty to consult and negotiate with affected states where more than one state has a claim to a shared resource and the claims c o n f l i c t . There i s a consistent and well recognized practice i n r i v e r basins for the narrower proposition that states are under an obligation to consult and negotiate i n respect of a project which may cause substantial harm to other states. The wider proposition derives i t s authority from two decisions of the International Court of Justice i n natural resource cases: the North Sea Continental Shelf Case and the Fisheries J u r i s d i c t i o n Case. The UNEP P r i n c i p l e s also support t h i s idea. It i s the conclusion of t h i s thesis therefore that i n t e r s t a t e r e l a t i o n s concerning shared natural resources do not take place i n a le g a l void. There are some well developed rules of law governing procedural r e l a t i o n s and where a le g a l obligation may not be developed, a strong state practice generally indicates a developing norm of international law. Thus, i n the s p e c i f i c cases of the migratory caribou and the shared A r c t i c ecosystem there w i l l not be a void i f the projected caribou Convention f a i l s to materialize. - 230 -Pr i n c i p l e s of law w i l l s t i l l govern the relationships of the United States and Canada i n t h i s area and by mandating cooperation an inte r s t a t e compact may evenutally be agreed upon. - 231 -APPENDIX I* 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 Explanatory Note The d r a f t p r i n c i p l e s of conduct, i n t h i s note further referred to as the p r i n c i p l e s , have been drawn up for the guidance of States i n the f i e l d of the environment with respect to the conservation and harmonious u t i l i z a t i o n of natural resources shared by two or more States. The p r i n c i p l e s r e f e r to such conduct of i n d i v i d u a l States as i s considered conducive to the attainment of the said objective i n a manner which does not adversely a f f e c t the environment. Moreover, the p r i n c i p l e s aim to encourage States sharing a natural resource, to co-operate i n the f i e l d of the environment. An attempt has been made to avoid language which might create the impression of intending to refer to, as the case may be, either a s p e c i f i c legal obligation under international law, or to the absence of such obli g a t i o n . The language used throughout does not seek to prejudice whether or to what extent the conduct envisaged i n the p r i n c i p l e i s already prescribed by e x i s t i n g rules of general i n t e r n a t i o n a l law. Neither does the formulation intend to express an opinion as to whether or to what extent and i n what manner the p r i n c i p l e s - as far as they do not r e f l e c t already e x i s t i n g rules of general law - should be incorporated i n the body of general i n t e r n a t i o n a l law. Draft P r i n c i p l e 1 (Duty to Cooperate) It i s necessary for States to co-operate i n the f i e l d of the environment concerning the conservation and harmonious u t i l i z a t i o n of natural resources shared by two or more States. Accordingly, i t i s necessary that consistent with the concept of equitable u t i l i z a t i o n of shared natural resources, States co-operate with a view to c o n t r o l l i n g , preventing, reducing or eliminating adverse environmental e f f e c t s which may r e s u l t from the u t i l i z a t i o n of such resources. Such co-operation i s to take place on an equal footing and taking into account the sovereignty, rig h t s and interests of the States concerned. P r i n c i p l e 2 (Agreements and Other Arrangements) In order to ensure e f f e c t i v e i nternational co-operation i n the f i e l d of the. environment concerning the conservation and T i t l e s i n parentheses added and u n o f f i c i a l . - 232 -harmonious u t i l i z a t i o n of natural resources shared by two or more States, States sharing such natural resources should endeavour to conclude b i l a t e r a l or m u l t i l a t e r a l agreements between or among themselves i n order to secure s p e c i f i c regulation of t h e i r conduct i n t h i s respect, applying as necessary the present p r i n c i p l e s i n a l e g a l l y binding manner, or should endeavour to enter into other arrangements, as appropriate, for t h i s purpose. In entering into such agreements or arrangements, States should consider the establishment of i n s t i t u t i o n a l structures, such as j o i n t i n t e rnational commissions, for consultations on environmental problems r e l a t i n g to the protection and use of shared natural resources. P r i n c i p l e 3 (Interstate Cooperation) 1. States have, i n accordance with the Charter of the United Nations and the p r i n c i p l e s of international law, the sovereign r i g h t to exploit t h e i r own resources pursuant to t h e i r own environmental p o l i c i e s , and the r e s p o n s i b i l i t y to ensure that a c t i v i t i e s within t h e i r j u r i s d i c t i o n or control do not cause damage to the environment of other States or of areas beyond the l i m i t s of national j u r i s d i c t i o n . 2. The p r i n c i p l e s set f o r t h i n paragraph 1, as well as the other p r i n c i p l e s contained i n t h i s document, apply to shared natural resources. 3. Accordingly, i t i s necessary for each State to avoid to the maximum extent possible and to reduce to the minimum extent possible the adverse environmental e f f e c t s beyond i t s j u r i s d i c t i o n of the u t i l i z a t i o n of a shared natural resource so as to protect the environment, i n p a r t i c u l a r when such u t i l i z a t i o n might: (a) cause damage to the environment which could have repercussions on the u t i l i z a t i o n of the resource by another State; (b) . threaten the conservation of a shared renewable resource; (c) . endanger the health of the population of another State. Without prejudice to the generality of the above p r i n c i p l e , i t should be interpreted, taking into account, where appropriate, the p r a c t i c a l c a p a b i l i t i e s of States sharing the natural resource. - 233 -Pr i n c i p l e 4 (Environmental Assessment). States should make environmental assessments before engaging in any a c t i v i t y with respect to a shared natural resource which may create a r i s k of s i g n i f i c a n t l y * a f f e c t i n g the environment of another State or States sharing that resource. P r i n c i p l e 5 (Exchange of Information and Consultations) States sharing a natural resource should, to the extent practicable, exchange information and engage i n consultations on a regular basis on i t s environmental aspect. P r i n c i p l e 6 (Not i f i c a t i o n , Supply of Additional Information and Consultations) 1. I t i s necessary for every State sharing a natural resource with one or more other States: (a) to n o t i f y i n advance the other State or States . of the pertinent d e t a i l s of plans to i n i t i a t e , or make a change i n , the conservation or u t i l i z a t i o n of the resource which can reasonably be expected to a f f e c t s i g n i f i c a n t l y * the environment i n the t e r r i t o r y of the other State or States; and (b) . upon request of the other State or States, to enter into consultations concerning the above-mentioned plans; and (c) to provide, upon request to that e f f e c t by the other State or States, s p e c i f i c additional pertinent information concering such plans; and (.d). i f there has been no advance n o t i f i c a t i o n as envisaged i n sub-paragraph la) above, to enter into consultations about such plans upon request of the other State or States. 2. In cases where the transmission of certa i n information i s provided by national l e g i s l a t i o n or international conventions, the State or States withholding such information s h a l l nevertheless, on the basis, i n p a r t i c u l a r , of the pr i n c i p l e of good f a i t h and i n the s p i r i t of good neighbourliness, co-operate with the other interested State or States with the aim of finding a sa t i s f a c t o r y solution. P r i n c i p l e 7 (Good Fait h and • Neighbourliness). Exchange of information, n o t i f i c a t i o n , consultations and other forms of co-operation regarding shared natural resources are See d e f i n i t i o n . - 23 4 -carried out on the basis of the p r i n c i p l e of good f a i t h and in the s p i r i t of good neighbourliness and i n such a way as to avoid any unreasonable delays either i n the forms of co-operation or i n carrying out development or conservation projects. P r i n c i p l e 8 ( S c i e n t i f i c Studies) When i t would be useful to c l a r i f y environmental problems r e l a t i n g to a shared natural resource, States should engage in j o i n t s c i e n t i f i c studies and assessments, with a view to f a c i l i t a t i n g the finding of appropriate and s a t i s f a c t o r y solutions to such problems on the basis of agreed data. P r i n c i p l e 9 (Emergency Action) 1. States have a duty urgently to inform other States which may be affected: (a) Of any emergency si t u a t i o n a r i s i n g from the u t i l i z a t i o n of a shared natural resource which might cause sudden harmful e f f e c t s on t h e i r environment; (b). Of any sudden grave natural events related to a shared natural resource which may a f f e c t the environment of such States. 2. Sates should also, when appropriate, inform the competent international organizations of any such s i t u a t i o n or event. 3. States concerned should co-operate, i n p a r t i c u l a r by means of agreed contingency plans, when appropriate, and mutual assistance, i n order to avert grave situations, and to eliminate, reduce or correct, as far as possible, the ef f e c t s of such situations or events. P r i n c i p l e 10 (Service of International Organization). States sharing a natural resource should, when appropriate, consider the p o s s i b i l i t y of j o i n t l y seeking the services of any competent international organization i n c l a r i f y i n g the environmental problems r e l a t i n g to the conservation or u t i l i z a t i o n of such natural resource. P r i n c i p l e 11 (Settlement of Disputes). 1. The relevant provisions of the Charter of the United Nations and of the Declaration of P r i n c i p l e s of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations apply to the settlement of environmental disputes a r i s i n g out of the conservation or u t i l i z a t i o n of shared natural resources. - 235 -2. In case negotiations or other non-binding means have f a i l e d to s e t t l e a dispute within a reasonable time, i t i s necessary for States to submit the dispute to an appropriate settlement procedure which i s mutually agreed by them, preferably i n advance. The procedure should be speedy, e f f e c t i v e and binding. 3. I t i s necessary for the States parties to such a dispute to r e f r a i n from any action which may aggravate the s i t u a t i o n with respect to the environment to the extent of creating an obstacle to the amicable settlement of the dispute. P r i n c i p l e 12 (Responsibility and L i a b i l i t y ) 1. States are responsible for the ful f i l m e n t of t h e i r international obligations i n the f i e l d of the environment concerning the conservation and u t i l i z a t i o n of shared natural resources. They are subject to l i a b i l i t y i n accordance with applicable international law for environmental damage r e s u l t i n g from v i o l a t i o n s of these obligations to areas beyond t h e i r j u r i s d i c t i o n . 2. States should co-operate to develop further international law regarding l i a b i l i t y and compensation for the victims of environmental damage a r i s i n g out of the u t i l i z a t i o n of a shared natural resource and caused to areas beyond t h e i r j u r i s d i c t i o n . P r i n c i p l e 13 (Non-discrimination) It i s necessary for States, when considering, under t h e i r domestic environmental p o l i c y , the p e r m i s s i b i l i t y of domestic a c t i v i t i e s , to take into account the poten t i a l adverse environmental e f f e c t s a r i s i n g out of the u t i l i z a t i o n of shared natural resources, without discrimination as to whether the e f f e c t s would occur within t h e i r j u r i s d i c t i o n or outside i t . P r i n c i p l e 14 (Equal Rights of Access) States should endeavour, i n accordance with t h e i r l e g a l systems and, where appropriate, on a basis agreed by them, to provide persons i n other States who have been or may be adversely affected by environmental damage r e s u l t i n g from the u t i l i z a t i o n of shared natural resources with equivalent access to and treatment i n the same administrative and j u d i c i a l proceedings, and make available to them the same remedies as are available to persons within t h e i r own j u r i s d i c t i o n s who have been or may be s i m i l a r l y affected. - 236 P r i n c i p l e 15 (Development Potential) The present p r i n c i p l e s should be interpreted and applied i n such a way as to enhance and not to a f f e c t aversely development and the interests of a l l countries, and i n p a r t i c u l a r of the developing countries. D e f i n i t i o n In the present text, the expression " s i g n i f i c a n t l y a f f e c t " refers to any appreciable e f f e c t s on a shared natural resource and excludes "de minimis" e f f e c t s . - 237 -BIBLIOGRAPHY BOOKS ) Berger, Thomas R., Northern Frontier, Northern Homeland, The Report of the Mackenzie Valley Pipeline Inquiry, 2 volumes, Ottawa, Queen's Prin t e r , 1977. Burhenne, W.E. (ed.), Internationales Umweltrecht - M u l t i l a t e r a l e  Vertrage, 976: 45/1, B e r l i n , E. Schmidt, 1974. Caldwell, Lynton, K., In Defense of Earth: International  Protection of the Biosphere, Bloomington, Indiana University Press, 1972. Christy, Francis T. and Scott, Anthony D.,The Common Wealth  i n Ocean Fi s h e r i e s , Baltimore,John Hopkins Press, 1965. Ch u r c h i l l , Robin, et a l . , (eds.), New Directions i n the Law  of the Sea, Dobbs Ferry, N.Y., Oceana Publications, 1973-Dunbar, Max, J . , Environment and Good Sense, Montreal, McGill-Queen's University Press, 1971. Falk, Richard A., This Endangered Planet, New York, Random House, 1971. Fawcett/ J.E.S., International Means of Conservation of  Natural Resources, London, David Davies Memorial In s t i t u t e , 1969. Friedmann, Wolfgang F., The Changing Structure of International  Law, London, Stevens, 1964. , Law i n a Changing Society (2nd.ed.), London, Penguin, 1972. Garretson^ Albert H., Hayton, Robert, Olmstead, C e c i l J . , The Law of International Drainage Basins, Dobbs Ferry, N.Y., Oceana, 1967. Haas, Ernst B., Beyond the Nation State, Stanford, University Press, 1964, Haefele, Edwin T,, The Governance of Common Property Resources, Balhmore, Johns Hopkins University Press, 1976. Hargrove, John L. (ed.), Law Ins t i t u t i o n s and the Global  Environment, Dobbs Ferry N.Y., Oceana, 1972. Hunt, Constance, Wilderness Area: L e g i s l a t i v e Alternatives  for the Establishment of a Wilderness Area i n the  Northern Yukon, Ottawa, Canadian A r c t i c Resources Committee, n.d. - 238 -Jenks, Wilfred C , Law, Freedom and Welfare, London, Stevens, 1963. Johnson, Bo, International Environmental Law, Stockholm, Liber Forlag, 1976. Johnson, Stanley P., The P o l l u t i o n Control P o l i c y of the European Communities, London, Graham & Trotman Ltd., 197 9. Johnston, Douglas M., The International Law of F i s h e r i e s , New Haven, Yale University Press, 1965. Keith, Robert F., and Wright, Janet B., (eds.), Northern  Transitions, I I , Second National Workshop on People, Resources and the Environment North of 60°, Ottawa, Canadian A r c t i c Resources Committee, 1978. K e l s a l l , J.P., The Migratory Barren Ground Caribou of Canada, Ottawa, Queen's Prin t e r , 196 8. Kiss, Alexander C., Survey of Current Developments i n International Environmental Law, Switzerland, I.U.C.N., 19 Koers, Albert W., International Regulation of Marine Fisheries Surrey, England, Fishing News (Books), 1973. MacLeod, William G., The Dempster Highway, Ottawa, Canadian A r c t i c Resources Committee, n.d. Mason, CM. (ed.), The E f f e c t i v e Management of Resources, London, Francis Pinter Ltd., 1979. Oda, Shigeru, The International Law of Ocean Development, Leiden, S i j t h o f f , 1972. OECD Secretariat, (eds.), Legal Aspects of Transfrontier  P o l l u t i o n , Paris, OECD, 1977. O'Connell, D.P., International Law (2nd.ed.), London, Stevens, 1970. Oppenheim, Lassa, International Law, I (8th ed. Lauterpacht, H London, Longmans, 1955. Ruster, Bernd, & Simma, Bruno (eds.), International Protection  of the Environment, Dobbs Ferry, New York, Oceana, 1975-Schacter, Oscar R., Sharing the World's Resources, New York, Columbia University Press, 1977. Schneider, Jan, World Public Order of the Environment, Toronto Toronto, University Press, 1979. - 239 -Schwarzenberger, Georg, The Frontiers of International Law, London, Stevens, 1962. Scott, Anthony D., Natural Resources: The Economics of Conservation, (2nd.ed.), Toronto, McClelland & Stewart, 1973. Surrendi, D.C., & De Bock, Elmer A., Seasonal D i s t r i b u t i o n , Population, Status and Behaviour of the Porcupine Caribou  Herd, Ottawa, C.W.S., 1976. Swainson, N e i l A., C o n f l i c t Over the Columbia, Montreal, McGill-Queen's University Press, 1979. T e c l a f f , Ludwik A., & Utton, Albert E., (eds.), International  Environmental Law, New York, Praeger, 1974. United Nations L e g i s l a t i v e Texts and Treaty Provisions concerning the U t i l i z a t i o n of International Rivers for  Purposes Other than Navigation, ST/LEG/SER.B/12, n.d. Utton, Albert E., & Henning, D. (eds.), Environmental Policy, New York, Praeger, 1973. University of B r i t i s h Columbia Law Review, special supplement on Proceedings of the A r c t i c International W i l d l i f e Range  Conference, Volume 6, 1971. Young, Oran R., Resource Management at the International Level, London, F. Pinter Ltd., 1977. ARTICLES Bi l d e r , Richard B., The Settlement of Disputes i n the F i e l d of the International Law of the Environment, (14 4) I Recueil des Cours 139, .1975, Bourne, Charles B., International Law and P o l l u t i o n of International Rivers and Lakes, 6 University of B r i t i s h  Columbia Law Review 115, 1971. , Procedure in the Development of International Drainage Basins, 22 University of Toronto Law Journal 172, 1972. The Right to U t i l i z e the Waters of International Rivers, 3 Canadian Yearbook of International Law 187, 1965. , Procedure i n the Development of International Drainage Basins: The Duty to Consult and Negotiate, 10 Canadian  Yearbook of International Law 212, 1972. - 240 -, Mediation, C o n c i l i a t i o n and Adjudication i n the Settlement of International Drainage Basin Disputes, 9 Canadian Yearbook of International Law 114, 1971. C a r r o l l , John E., International Peace Parks: A Concept and a Proposal, unpublished paper presented at the Conference on Canadian National Parks: Today and Tomorrow, Banff, Alberta, October 1978. Contini, J.P., and Sand, Peter M., Methods to Expedite Environmental Protection: International Ecostandards, 66 American Journal of International Law 37, 1972. Dobbert, J.P., Water P o l l u t i o n and International River Law, 35 Yearbook of the Association of the Alumni & Attenders  of the Hague Academy of International Law 60, 1965. Fitzmaurice, Gerald G., The future of Public International Law, Institute de Droit International, Livre du Centenaire 196, 1973. Friedmann, Wolfgang F., General Course i n Public International Law, (127) II Recueil des Cours 39, 1969. Gaines, Sanford E., Environmental E f f e c t s Abroad of Major Federal Actions, 3 Harvard Environmental Law Review 136, 1979. Gordon, Scott H., Theory of a Common Property Resource, 62 Journal of P o l i t i c a l Economy 124, 1954. Haas, Ernst B., Is there a hole i n the whole? 29 International  Organization 827, 1975. Handl, Gunther, T e r r i t o r i a l Sovereignty and the Problem of Transnational P o l l u t i o n , 69 American Journal of International  Law 50, 1975. Hardin, Garrett, The Tragedy of the Commons, 162 Science 1243, 13 December 196 8. Hoffman, S., State Responsibility i n International Law and Transboundary P o l l u t i o n Injuries, 25 I.C.L.Q. 509, 1976. Holsh, J. & Levy, A., B i l a t e r a l I n s t i t u t i o n s and Trans-governmental Relations between Canada and the United States, 28 International Organization 875, 1974. Johnson, Bo, The B a l t i c Conventions, 25 I.C.L.Q. 1, 1976. Kulz, Helmut R., Further Water Disputes between India and Pakistan, 18 I.C.L.Q. 718, 1969. - 241 -Lagoni, Raynor, O i l and Gas Deposits Across National Frontiers, 73 American Journal of International Law 215, 1979. Levin, Aida L., Procedures and Mechanisms for Avoidance and Settlement of Environmental Disputes, 3 Earth Law  Journal 89, 1977. Onarato, William T., Apportionment of an International Common Petroleum Deposit, 17 I.C.L.Q. 85, 1968, and 26 I.C.L.Q. 324, 1977. Schneider, Jan, New Perspectives on International Environmental Law, 82 Yale Law Journal 1659, 1973. , and McDougal, Myres.S., The Protection of the Environment and World Public Order: Some Recent Developments, 45 M i s s i s i p p i Law Journal 1085, 1974. Sohn, Louis B., The Stockholm Declaration, 14 Harvard  International Law Journal 423, 1973. Stein, Robert E., The OECD Guiding P r i n c i p l e s on Transfrontier P o l l u t i o n , 6 Georgia Journal of International and  Comparative Law 245, 1976. Utton, Albert E., I n s t i t u t i o n a l Arrangements for Developing North Sea O i l and Gas, 9 V i r g i n i a Journal of International  Law 66, 1968. , International Environmental Law, 12 Columbia Journal of Transnational Law 56, 1973. Woodliffe, John C., International U n i t i s a t i o n of an Offshore Gas F i e l d , 26 I.C.L.Q. 338, 1977. 

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