Freshwater Regimes: The Mandate of the International Joint Commission
Arizona Journal of International and Comparative Law, Vol. 15, pp. 273-287, 1998
15 Pages Posted: 28 Jul 2008
Date Written: July, 28 2008
In a recent contribution, we sought to describe how regimes can contribute to our understanding of the evolution of both treaty and customary law. We suggested that regime formation should be conceived along a continuum from mere dialogue and information sharing, to the creation of more formal cooperative frameworks, to the hardening of substantive, sometimes binding, norms.
In our view, the International Joint Commission (IJC), which oversees boundary waters between the United States and Canada, is best seen as the focus for relatively well-developed contextual regimes that never evolved into independent sources of binding normativity. Much of the criticism of the IJC's performance implicitly or explicitly brandished the lack of substantive normative development as its greatest weakness. Not surprisingly, then, many of the rescriptions for improving the IJC's effectiveness focused upon granting it norm-making powers, or powers to enforce the norms that do exist. A regime-oriented analysis allows us to appreciate that the apparent weaknesses of the IJC and its mandate may well be its greatest strengths. In our view, the time is not ripe for strengthening the IJC in ways a conventional analysis of "effectiveness" or "compliance" might suggest. As observed elsewhere, overly ambitious changes would be misguided and would likely make the IJC less rather than more effective. This does not mean, however, that the IJC cannot be strengthened at all. In our opinion, the IJC's central-and unique-contribution to the bilateral relations between Canada and the United States lies in offering a forum for dialogue and fact-finding that serves to solidify surrounding contextual regimes. The IJC's ability to make this unique contribution must be strengthened. We will suggest how this might be done by drawing upon our previous work as well as some of the many existing proposals for IJC reform. We will explain briefly why each of these proposals should or should not be pursued.
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