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Published online by Cambridge University Press: 09 March 2016
Over the last decade several proposals have been made for the creation of an international wildlife range between northeast Alaska and northern Yukon Territory, and for a convention between Canada and the United States to regulate the Porcupine caribou herd. The herd, one of the largest barren ground caribou herds in North America, regularly migrates across the United States-Canadian boundary. It is harvested in both countries by Indians and Inuit. Since the vitality of the caribou herd may be affected by developments on either side of the border, such as overharvesting, construction of pipelines or highways, influx of tourists, open access hunting policies, and oil and gas drilling, the herd requires co-operative management.
1 Berger, T. R., Northern Frontier, Northern Homeland: The Report of the Mackenzie Valley Pipeline Inquiry, Vol. 1, at 46-50 Google Scholar. See also Proceedings of the Arctic International Wildlife Range Conference, October 21-22, 1970, 6 U.B.C. L. Rev., special supplement, 1971 ; and Rees, W. E. and Russell-Le Blond, N. J., “Arctic International Wildlife Range: Last Chance for the Porcupine Caribou,” 7(7) Northern Perspectives 1-12 (1979)Google Scholar. This article provides the text of the May 14, 1979 Canadian draft Convention.
2 Under the Territorial Lands Act, 1970, R.S.C. c.T-6, P.C. 1978-2195, July 1978, SOR/78-568, July 6, 1978.
3 “Canada Seeks Agreement with the U.S. to Protect Northern Caribou Herd,” Ottawa, Department of Fisheries and the Environment, press release, July 6, 1978.
4 Report of the Executive Director on Co-operation in the Field of the Environment Concerning Natural Resources Shared by Two or More States, UNEP/ GC/9-4, February 20, 1975, at 40-41 (hereafter, Report of Executive Director).
5 Pollution is almost a common property problem in reverse. See Hardin, Garrett, “The Tragedy of the Commons,” 162 Science 1243, December 13, 1968.Google ScholarPubMed
6 Fisheries Jurisdiction case (United Kingdom and Iceland), Merits, Judgment, [1974] I.G.J. Rep. 3.
7 Geneva, April 29, 1958, 599 U.N.T.S. 285.
8 Fisheries Jurisdiction case, supra note 6, at 30.
9 Ibid., 31.
10 Ibid., 31-32.
11 This conclusion may be supported by reference to the North Sea Continental Shelf case, [1969] I.C.J. Rep. 3, 46-47, where the Court stated that the parties were under an obligation to enter into good faith negotiations to delimit natural resources.
12 [1949] I.C.J. Rep. 4, 22.
13 Bourne, C. B., “Procedure in the Development of International Drainage Basins,” 22 U. of T. L.J. 172, 182-87 (1972).CrossRefGoogle Scholar
14 Reprinted in 19 Int’l Leg. Mat. 11 (1980).
15 Report of the U.N. Conference on the Human Environment, Stockholm, June 15-16, 1972, A/Conf.48/i4/Rev.1.
16 Articles 2 and 4, Migratory Species Convention, supra note 14.
17 Article 5(5), Migratory Species Convention, ibid.
18 UNESCO, Paris, November 16, 1972, 11 Int’l Leg. Mat. 1358 (1972), especially Article 7.
19 Ramsar, February 2, 1971, 11 Int’l Leg. Mat. 969 (1972).
20 Helsinki Rules on the Uses of the Waters of International Rivers in Report of the Fifty-Second Conference of the International Law Association Held at Helsinki, August 14-20, 1966, at 486 (1967).
21 Resolution on the Utilisation of Non-Maritime International Waters (Except for Navigation) adopted by the Institute of International Law at its Session at Salzburg (September 13-14, 1961), 49 Annuaire de l’Institut de Droit International, Tome II, 381 (1971).
22 See Y.B. of the I.L.C., 1974 II, part 2, and the Report of the I.L.C. on the work of its thirty-first session, 443-70, General Assembly Official Records, A/34/10. This Report contains draft articles by the special rapporteur on non-navigational uses of rivers.
23 Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Re-sources Shared by Two or More States. Reprinted in 17 Int’l Leg. Mat. 1097 (1978).
24 G.A. Res./34/i86, February 13, 1980.
25 Supra note 13.
26 Articles 4 and 5, supra note 21.
27 Article 39, supra note 20.
28 Lac Lanoux Arbitration (France v. Spain), Award of November 16, 1957, 24 I.L.R. 101 (1959). See also Recommendation 51 of the Stockholm Action Plan, supra note 15.
29 Ibid., 119. See also Declaration of the Seventh Pan-American Conference on the Industrial and Agricultural Use of International Rivers, adopted at Mon-tevideo, December 24, 1933, Article 7. Reprinted in 28 Am.J. Int’l L., Supp. 59-60 (1934).
30 Article 7(i)b, Resolution of the 59th Session of the Institute of International Law, Athens, September 1979, adopting the work of the Committee on the Pollution of International Rivers and Lakes.
31 G.A. A/Res./2i995 (XXVII), January 19, 1973. For the development of this resolution from the Stockholm Conference, see Sohn, L. B., “The Stockholm Declaration,” 14 Harv. Int’l L.J. 423, 496-502 (1973).Google Scholar
32 Recommendation on Principles Concerning Transfrontier Pollution, Title E(i). Reprinted in Ruster, and Simma, (eds.), International Protection of the Environment, Vol. 1, at 316 (1975).Google Scholar
33 Resolution (71)5, Ruster, ibid., XV, at 7850.
34 Principle 6(1), supra note 23.
35 See ibid., 6(1)c, and Title C OECD Implementation Recommendation, C (77) 28 (Final), 16 Int’l Leg. Mat. 977 (1977).
36 See ЕСЕ Draft Declaration on the Prevention and Control of Water Pollution including Transboundary Pollution, reprinted in 5 Environmental Policy and Law 154 (1979); and paragraph 11 ЕСЕ draft on Long-Range Trans-boundary Air Pollution, ibid., 104.
37 See, e.g., OECD Principles, supra note 32, Title G, paragraph 11 and EEC Council Decision establishing a common procedure for the exchange of information between the surveillance and monitoring networks based on data relating to atmospheric pollution caused by certain compounds and suspended particulates, June 24, 1975, reprinted in Ruster XV, supra note 32, at 7634.
38 Article 7 (1) a, supra note 30.
39 See the sister agreements between Czechoslovakia and Austria concerning (a) the Principles of Geological Co-operation, UNTS 7241 (1964), and (b) the Working of Common Deposits of Natural Gas and Petroleum, UNTS 7242 (1964), Prague, January 23, i960; and Supplementary Agreement to the Ems-Dollard Treaty (The Netherlands and Federal Republic of West Germany), Bennekom, May 14, 1962, UNTS 140 (1964).
40 Frigg Gas Field Agreement in the North Sea, U.K. and Norway, London, May 10, 1976, reprinted in Churchill, , Nordquist, , Lay, (eds.), New Directions in the Law of the Sea, Vol. 5, at 398.Google Scholar
41 Supra note 13, at 194-96.
42 Article 29(1), supra note 20.
43 Article 5, supra note 23. The functional limitation to “environmental aspects” is of no relevance here.
44 See, though, the Draft Articles of the Rapporteur of the I.L.C., supra note 22, 1979 Report, at 467-68, which provide that states shall use their best efforts to provide information not normally available at the expense of the requesting state.
45 Ruster XI, at 5785, supra note 32, April 4, 1974. The EEC Commission has approved this draft and is soon expected to ratify it. Johnson, S. P., The Pollution Control Policy of the European Communities 128-30 (1979).Google Scholar
46 Ruster X, at 5292, supra note 32, Ottawa, April 15, 1972, Article 9(2), and Ottawa, November 22, 1978.
47 Ruster XII, at 6204, supra note 30, Paris, September 13, 1966. See also the revised informal composite negotiating text of the Third Law of the Sea Con-ference, A/Conf.62/W.P.io/Rev.i, April 28, 1979, 18 I.L.M. 686, Articles 24(2), 44, 198, 199, and 211 (7).
48 Lagoni, R., “Oil and Gas Deposits across National Frontiers,” 73 Am.J. Int’l L. 215 (1979)CrossRefGoogle Scholar. Only the U.S.S.R. failed to draft such provisions.
49 Norway-United Kingdom, Agreement relating to the Delimitation of the Continental Shelf between the Two Countries, March 10, 1965, UNTS 8043 (1965).
50 Article 7(1)d, supra note 30.
51 Article 11(2), supra note 20.
52 Ibid., Article 30.
53 Article 6, supra note 21.
54 Ruster XI, supra note 32, at 5748.
55 Supra note 45.
56 UNEP Principle 7 suggests that exchange of information, notification, consultations, and other forms of co-operation regarding shared natural resources are carried out on the basis of the principle of good faith and in the spirit of good neighbourliness and in such a way as to avoid any unreasonable delays either in the forms of co-operation or in carrying out development or conservation projects; supra note 23.
57 North Sea Continental Shelf case, [1969] I.C.J. Rep. 3, 46-47.
