Disaggregating Devils Lake: Can Non-State Actors, Hegemony, or Principal-Agent Theory Explain the Boundary Waters Treaty?

Abstract:     
This paper seeks to devise a theoretical explanation for recent disputes over the construction of an outlet from Devils Lake, North Dakota, in a way that affords a predictive framework for future international environmental law issues. Opponents of the outlet alleged it would violate U.S. obligations not to pollute Canadian waters under the 1909 Boundary Waters Treaty (BWT) because it might introduce invasive species into waters flowing across the border into Canada. North Dakota dismissed such concerns, as did the U.S. federal government, notwithstanding requests from Canada's Ambassador and Prime Minister that the treaty compliance question be referred to the BWT's International Joint Commission (IJC). Instead of an IJC reference, the White House negotiated a political deal directly with Canadian federal, provincial, and U.S. state officials that allowed North Dakota to operate the outlet under certain conditions.

The Devils Lake crisis provides an opportunity to assess the descriptive and predictive value of three competing theories: (a) that non-state actors are an increasingly visible and powerful presence in international relations; (b) that the United States, as hegemon, can do what it wants and bend the law to its will; and (c) that international institutions such as the IJC can be considered to act as either agents or trustees for the state(s) that create them. I conclude that the first two theories fail to accurately or completely explain why the Devils Lake dispute played out as it did. As for recent theories debating whether international institutions operate more like agents or trustees, I find neither label alone explains the IJC's relationship with the United States. But, by selecting those characteristics of agents and trustees that best reflect the IJC's actual construction and operation - i.e., a hybrid approach - I can generate a relatively accurate explanation for why the United States refused an IJC reference on Devils Lake when it did, along with a nuanced assessment of how the IJC may operate in the future. Adopting a hybridized approach has the added benefit of engaging recent scholarship on agents and trustees constructively. It suggests both agent and trustee characterizations might suffer from oversimplification and require further elaboration or adjustment to apply to many existing international institutions.

Number of Pages in PDF File: 32

Keywords: international law, international environmental law, non-state actors, hegemonic law, hegemony, principal-agent theory, trustees, Boundary Waters Treaty, BWT, International Joint Commission, IJC, treaty interpretation, VCLT, slippage, Canada, Garrison, pollution, invasive species, risk, precaution

JEL Classification: K11, K19, K30, K32, K33, K40, K49

Accepted Paper Series