Riverine ecosystems in international law

Natural Resources Journal

Volumn 36, Issue 3 PART 1, 1996, Pages 481-518

  Korhonen, Iris M ^a  

^a PACIFIC NORTHWEST RESEARCH STATION   (United States)

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EID: 21744451411     PISSN: 00280739     EISSN: None     Source Type: Journal    
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References (241)

1. See, e.g., BOB DOPPELT ET AL., ENTERING THE WATERSHED XXV 7 (1993) [hereinafter DOPPELT].
2. Terminology used in this paper follows generally that adopted by Doppelt: thus, riverine systems include "the entire river network, including tributaries, side channels, sloughs, intermittent streams etc." Id. at xix; riverine-riparian ecosystems are created and sustained by the interactions between flowing freshwater and surrounding land areas which generally include the 100-year floodplain; a riparian area by itself is "the transition zone between flowing water and terrestrial ecosystem" or "stream side vegetation buffer zone;" watershed ecosystems refer to "all of the elements and processes that interact within the catchment basin;" finally, catchment basin or watershed means the "entire physical area drained by a distinct stream or riverine system." See DOPPELT, supra note 1. Riparian areas have spatial overlap with wetlands the width of which depends of definition used for the latter. See, e.g., DEPT. OF AGRICULTURE ET AL., FOREST ECOSYSTEM MANAGEMENT: AN ECOLOGICAL, ECONOMIC, AND SOCIAL ASSESSMENT, REPORT OF THE FOREST ECOSYSTEM MANAGEMENT ASSESSMENT TEAM, Appendix V-E (1993) [hereinafter FEMAT REPORT];
3. see also NATIONAL RESEARCH COUNCIL, THE RESTORATION OF AQUATIC ECOSYSTEMS (1992).
4. Parameters of ecologically healthy watersheds are tied to "biodiversity, nutrient and chemical cycles, and evolutionary processes that are adapted to the climatic and geologic conditions of the region" or more specifically to "water yield and quality, species composition, diversity and abundance, wildlife use, and genetic diversity" of which the "degree to which native riverine-riparian biodiversity survives in large landscapes throughout their historic range" may be held as a key indicator. DOPPELT, supra note 1, at 10-11. See also Robert J. Naiman et al., Fundamental Elements of Ecologically Healthy Watersheds in the Pacific Northwest Costal Ecoregion, in WATERSHED MANAGEMENT: BALANCING SUSTAINABILITY AND ENVIRONMENTAL CHANGE 127, 173 (Robert J. Naiman ed., 1992) (stressing the fundamental importance of riparian forests for the long-term ecological and socioeconomic vitality of watersheds within the region).
5. Water diversion, dams, river channelization, and dike construction for urban and agricultural water supply, hydropower production, and flood control are the most commonly occurring water developments. For an assessment of the effects of dams and other water regulation (reservoir operation, interbasin diversion, and irrigation) on the fragmentation of river channel corridors in North America and Eurasia, see Mats Dynesius & Christer Nilsson, Fragmentation and Flow Regulation of River Systems in the Northern Third of the World, SCIENCE, Nov. 1994, at 753, 753-55, table 1 (finding, for example, that 77% of the total water discharge of the 139 largest river systems within that area-representing as much as 20% of the world's river runoff-was strongly or moderately affected).
6. For a historic account in the Pacific Northwest see Robert C. Wissmar et al., A History of Resource Use and Disturbance in Riverine Basins of Eastern Oregon and Washington (Early 1800s-1990s), NORTHWEST SCIENCE, Special Issue 1994, at 1-35 (documenting the chronology of individual and cumulative effects that have shaped the landscapes of stream and riparian ecosystems in the region).
7. For an analysis from the point of view of Pacific salmon see INFLUENCES OF FOREST AND RANGELAND MANAGEMENT ON SALMONID FISHES AND THEIR HABITAT chs. 6-13 (William R. Meehan ed., 1991) [hereinafter INFLUENCES OF FOREST AND RANGELAND MANAGEMENT];
8. LESLIE M. REID, U.S. FOREST SERVICE, RESEARCH AND CUMULATIVE WATERSHED EFFECTS, GEN. TECH. REP. PSW-GTR-141, at 93 (1993) (defining a cumulative effect as "a change influenced by multiple, progressive, or repeated activities,"); United States Council on Environmental Quality Guidelines for NEPA implementation, 40 C.F.R. 1508.7 (1971), which define cumulative impact as the impact on the environment which results from the incremental impact of the action when added to the other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. Id.
9. See generally F.J. Swanson et al., Some Emerging Issues in Watershed Management: Landscape Patterns, Species Conservation, and Climate Change, in WATERSHED MANAGEMENT, supra note 3, at 307-23;
10. Paul G. Risser, Impacts on Ecosystems of Global Environmental Changes in Pacific Northwest Watersheds, in WATERSHED MANAGEMENT, supra note 3, at 12-24.
11. Jack E. Williams et al., Fishes of North America endangered. Threatened, or of Special Concern: 1989, FISHERIES, June 1989, at 2-20 (indicating a special status for one-third or 364 of the freshwater fish species, 254 in the U.S., 22 in Canada and the rest in Mexico, which accounts for an increase of 45% within 10 years).
12. With some 790 species, the U.S. has the most diverse temperate freshwater fauna in the world. Melvin L. Warren, Jr. & Brooks M. Burr, Status of Freshwater Fishes of the United States: Overview of an Imperiled Fauna, FISHERIES, Jan. 1994, at 6-18.
13. James D. Williams et al., Conservation Status of Freshwater Mussels of the United States and Canada, FISHERIES, Sept. 1993, at 6-22 (listing over 70% of the 297 freshwater mussel species and sub-species as endangered, threatened, or of special concern).
14. Willa Nehlsen et al., Pacific Salmon at the Crossroads: Stocks at Risk from California, Oregon, Idaho, and Washington, FISHERIES, Mar.-Apr. 1991, at 4 (including stocks of Pacific salmon species in the genus Oncorhynchus that spawn on the American continent, excluding, however, stocks in Alaska).
15. The total number of lost stocks is unknown due to lack of historical data. Id. at 16.
16. See generally FEMAT REPORT, supra note 2, at ch. IV and Appendix V-12 (vascular plants, lichens, mosses, mollusks, amphibians, birds, mammals and bats associated with North Pacific late-successional and old-growth forests and utilizing streams, wetlands and riparian habitats); Mary F. Willson & Karl C. Halupka, Anadromous Fish as Keystone Species in Vertebrate Communities, CONSERVATION BIOLOGY, June 1995, at 489, 492 (summarizing wildlife utilizing salmon in or near fresh waters of southeast Alaska).
17. Only four salmon runs are currently listed under the Endangered Species Act (ESA) of 1973, 16 U.S.C. §§ 1531-1544 (1988 & Supp. V 1993): Sacramento River Winter-run Chinook (threatened, 55 Fed. Reg. 46515 (1990) and endangered, 59 Fed. Reg. 440 (1994)); Snake River sockey salmon (endangered, 56 Fed. Reg. 58,619-24 (1991); Snake River Spring/Summer Chinook Salmon and Snake River Fall Chinook Salmon (threatened, 57 Fed. Reg. 14653 (1992)). An emergency interim rule (effective Aug. 18, 1994-May 26, 1995) was issued by NMFS to reclassify Snake River chinook as endangered, 59 Fed. Reg. 42529 (1994). In March 1995, a threatened status was proposed also for the Klamath Mountains Province Steelhead in S. Oregon and N. California, 60 Fed. Reg. 14253 (1995). Approximately half of the listed ESA species are aquatic. The list is codified in 50 C.F.R. § 17.11.
18. About 78% of the 1.9 billion acre land base in the lower 48 States of the United States (including Puerto Rico and Virgin Islands, excluding Alaska) is privately owned or held by state and local governments. See Robert L. Kellogg et al., Highlights from the 1992 National Resources Inventory, J. SOIL AND WATER CONSERVATION, Nov.-Dec. 1994, 521, Table 1 at 521. The amount of Federal lands varies greatly, however, between States. For example, in Alaska, the Federal-private ratio is reversed to that of lower 48.
19. The different legal regimes for streams, lakes and related waters are based on: riparianism (generally eastern States), dual or "hybrid" systems (e.g., Washington, Oregon, California), and prior appropriation (e.g., Alaska). See generally WATERS AND WATER RIGHTS (R. Beck ed., 1991) Vol. I, Part II and Vol. II, Part II;
20. DAVID GETCHES, WATER LAW IN A NUTSHELL (2nd ed. 1990);
21. DAVID GETCHES & CHARLES WILKINSON, FEDERAL INDIAN LAW 651-715 (2nd ed. 1986) (describing Native American water rights).
22. See, e.g., Margaret Strand, Federal Wetlands Law, in WETLANDS DESKBOOK 5 (1993) (addressing the piecemeal statutory approach to wetlands resulting in array of definitions, prohibitions, and policies that are applicable in or concerning wetlands);
23. GEORGE C. COGGINS, PUBLIC NATURAL RESOURCES LAW § 21.01[3][a] (1995) (the "legal anonymity" of watersheds is due to the lack of precise and generally accepted definition that would go beyond the geographical concepts of a drainage area).
24. The main federal agencies involved in administering riverine-riparian ecosystems are the Forest Service (FS), Bureau of Land Management (BLM), Fish and Wildlife Service (FWS) and National Park Service (NPS). The former two carry multiple-use mandates, especially the FS under the Multiple-Use, Sustained Yield Act of 1960, 16 U.S.C. § 528 (1988), and the BLM under Federal Land Policy and Management Act of 1976, 43 U.S.C. § 17202(c)(1988). NPS's Organic Act of 1916, 16 U.S.C. § 1 (1988) gives the agency a preservationist mission over the park system. The FWS is in charge of the National Wildlife Refuge System according to the System Administration Act of 1966, 16 U.S.C. §§ 668dd-668ee (1988).
25. See Robert B. Keiter, Beyond the Boundary Line: Constructing a Law of Ecosystem Management, 65 U. COLO. L. REV. 293, 314-18 (1994) (tracing the "major legal roadblock to ecosystem management" into the organic laws governing public land management agencies, and conflicting substantive goals especially within the multiple-use regime);
26. Joseph L. Sax, Nature and Habitat Conservation and Protection in the United States, 20 ECOLOGY L. Q. 47 (1993) (addressing the problems of both public and private "enclaves" to ecosystem management).
27. For an excellent regional account of jurisdictional fragmentation within the public domain, see Robert B. Keiter, Taking Account of the Ecosystem on the Public Domain: Law and Ecology in the Greater Yellowstone Region, 60 U. COLO. L. REV. 923 (1989).
28. The international agreements that govern the successive and contiguous rivers and lakes that are shared between the U.S. and its neighbors along the 7,500-mile of border include: Convention providing for the Equitable Distribution of the Waters of the Rio Grande for Irrigation Purposes, 1906, U.S.-Mex., 34 Stat. 2953; Treaty respecting Boundary Waters Between the United States and Canada, 1909, U.S.-Gr. Brit., 36 Stat. 2448; Treaty relating to the Utilization of waters of the Colorado and Tijuana Rivers and of the Rio Grande, 1944, U.S.-Mex., 59 Stat. 1219; Treaty relating to the Cooperative Development of the Water Resources of the Columbia River Basin, 1961, and Protocol 1964, U.S.-Can., 15 U.S.T. 1555; Agreement on Great Lakes Water Quality, 1978, U.S.-Can., 30 U.S.T. 1383.
29. See generally Albert E. Utton, International Waters, in 5 WATERS AND WATER RIGHTS, supra note 14, at 1;
30. F.J. BERBER, RIVERS IN INTERNATIONAL LAW (1959);
31. THE LAW OF INTERNATIONAL DRAINAGE BASINS (Albert H. Garretson et al. eds., 1968);
32. JOHAN G. LAMMERS, POLLUTION OF INTERNATIONAL WATERCOURSES (1984);
33. ALEXANDRE KISS & DINAH SHELTON, INTERNATIONAL ENVIRONMENTAL LAW 202-27 (1991).
34. The ILC is charged with "the promotion of the progressive development of international law and its codification" under the Statute of the International Law Commission, G.A. Res. 174 (II), U.N. GAOR, 2d Sess., U.N. Doc. A/519 (1948). The current topic was included in the ILC's program during its twenty-third session. The Commission adopted the final text of the Draft articles, as well as a resolution on confined groundwater, during its 46th session in summer 1994 and referred them to the general Assembly and recommended the elaboration of a convention on the basis of the articles. Draft Report of the International Law Commission on the Work of Its Forty-Sixth Session, ch. III, U.N. GAOR International Law Commission, 46th Sess., at 2-4, U.N. Doc. A/CN.4/L.500 (1994) (P. Kabastsi, Rapporteur). The ILC is proposing a framework agreement that would provide both universally applicable general principles and rules, and guide states in negotiating new, watercourse-specific agreements.
35. See Draft Articles on the Law of the Non-Navigational Uses on International Watercourses, U.N. GAOR, International Law Commission, 46th Sess., at art. 3 and commentary at 12-13, U.N. Doc. A/CN.4/L.493 (1994) [hereinafter Draft Articles]. The International Law Association (ILA) and Institute of International Law (IDI) are also involved in ongoing codification efforts on international watercourses.
36. For comparative views on these proposals see Patricia K. Wouters, Allocation of the Non-Navigational Uses of International Watercourses: Efforts at Codification and the Experience of Canada and the United States, CAN. Y.B. INT'L L. 43 (1992).
37. See Draft Articles, supra note 20, art. 1 and accompanying commentary.
38. Id. at art. 5 and accompanying commentary.
39. Id. at art. 20, U.N. Doc. A/CN.4/L.493/Add.1 (1994) (discussing protection as "use and development" of international watercourses "in a manner that is consistent with adequate protection thereof" requiring the watercourse states to protect the ecosystem from harm or damage or significant threat of harm). Preservation means in particular to maintain pristine or unspoiled freshwater ecosystems as much as possible in their natural state. Id. at 39-41.
40. Draft Articles, supra note 20, at art. 21-23, U.N. Doc. A/CN.4/L.493/Add.2 (1994); Draft Articles, supra note 20, at 39, U.N. Doc. A/CN.4/L.493/Add.1 (1994) (stating that the general obligation should precede the specific provisions).
41. The ILC's terminology for watercourses as a "system of surface waters and ground waters" includes rivers, lakes, aquifers, glaciers, reservoirs, and canals as long as they are physically interrelated to each other. Draft Articles, supra note 20, at art. 2 and accompanying commentary, U.N. Doc A/CN.4/L.493 (1994).
42. See Draft Articles, supra note 20, at art. 20 and accompanying commentary, U.N. Doc. A/CN.4/L.493/Add.1 (1994). Compare with definitions given in note 2, supra.
43. See, e.g., Report of the Fifty-Second Conference Held at Helsinki, 1966, International Law Association (1966),
44. reprinted in INTERNATIONAL LAW ASSOCIATION, HELSINKI RULES ON THE USES OF THE WATERS OF INTERNATIONAL RIVERS (1967) (drainage basin as a unit) [hereinafter Helsinki Rules];
45. Report of the Committee on International Water Resources Law, Articles on the Relationships between Water, Other Natural Resources and the Environment (1980) (Belgrade Conference);
46. Agreement on Great Lakes Water Quality, Nov. 22, 1978, U.S.-Can., 30 U.S.T. 1383 (where art. I(g) defines the basin ecosystem as "[t]he interacting components of air, land, water and living organisms, including man" and art. II sets as a goal to "restore and maintain the chemical, physical, and biological integrity" of that ecosystem); ECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes, March 17, 1992, 31 I.L.M. 1312; The Dublin Statement, International Conference on Water and Environment: Development Issues for the 21st Century, Jan. 26-31, 1992, Principle 1, at 9, U.N. Doc. A/CONF.151/PC/112 (1992) ("[e]ffective management links land and water uses across the whole of catchment area or groundwater aquifer").
47. See generally George Francis, Ecosystem Management, 33 NAT. RESOURCES J. 315 (1993);
48. Leonard Dworsky, Ecosystem Management: Great Lakes Perspectives, 33 NAT. RESOURCES J. 347 (1993);
49. Ludwik A. Teclaff & Eileen Teclaff, Restoring River and Lake Basin Ecosystems, 34 NAT. RESOURCES J. 905 (1994).
50. Nontransboundary or internal waters encompass waters surrounded by state's land territory and sea waters on the landward side of the baseline of the territorial sea or the archipelagic waters as defined in articles 8(1) and 50 of the United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 11 I.L.M. 1261 (1982) (entered into force Nov. 16, 1994) [hereinafter UNCLOS]; see also RESTATEMENT (THIRD) OF THE LAW, THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 511 cmt. e (1987) [hereinafter RESTATEMENT].
51. Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Feb. 2, 1971, T.I.A.S. No. 11084, 11 I.L.M. 969 (1972) (entered into force Dec. 21, 1975, entered into force for the U.S. Dec. 18, 1986) [hereinafter Ramsar Convention].
52. Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979, 19 I.L.M. 15 (1980) (entered into force Nov. 1, 1983) [hereinafter Bonn Convention].
53. UNCLOS, supra note 28.
54. Convention on Biological Diversity, opened for signature June 5, 1992, 31 I.L.M. 818 (1992) (entered into force Dec. 29, 1993) [hereinafter Biodiversity Convention].
55. Ramsar Convention, supra note 29, stating that the definition of wetlands covers riverine ecosystems through "areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine waters the depth of which at low tide does not exceed six meters," id. at art. 1(1), and which may include "riparian and costal zones adjacent to wetlands," id. at art. 2(1); see also the Preamble ("[c]onsidering the fundamental ecological functions of wetlands as regulators of water regimes and as habitats supporting a characteristic flora and fauna, especially waterfowl"), and art. 2(2) (addressing the "international significance [of wetlands] in terms of ecology, botany, zoology, limnology or hydrology", or "to waterfowl at any season"). Ramsar Convention, supra note 29. Parties to the convention have since established more detailed criteria and guidelines for assessing the international importance of wetlands under their jurisdiction. See criteria adopted during the Regina Conference (1987), quoted in Daniel Navid, The International Law of Migratory Species: The Ramsar Convention, 29 NAT. RESOURCES J. 1001, 1005-06 (1989).
56. Migratory species are "the entire population or any geographically separate part of the population of any species or lower taxon of wild animals, a significant proportion of whose members cyclically and predictably cross one or more national jurisdictional boundaries." Bonn Convention, supra note 30, at art. I(1)(a). Conservation of habitats containing suitable living conditions for the species play a key role in all relevant treaty provisions. Id. at art. I(1)(g).
57. UNCLOS, supra note 28, arts. 192 and 193. Art. 207 concerns pollution from land-based sources including discharges of fluvial origin.
58. UNCLOS, supra note 28, at arts. 66, 67 (providing that states in whose rivers anadromous stocks (such as salmon) originate shall have the primary interest in and responsibility for those stocks, and respectively the costal states in whose waters catadromous species (such as eels) spend the greatest part of their life cycle shall have the responsibility for their management). UNCLOS does not define what species these two categories involve.
59. Biodiversity Convention, supra note 32, at art. 2(1) (emphasis added). The latter part of the paragraph addresses the levels or "components" of biodiversity - genetic, species, and ecosystem diversity - which are used throughout the operational provisions of the treaty. Genetic diversity refers to the variability of hereditary content within species, subspecies, and populations, and also, between populations and their individual members. Species diversity indicates primarily the number and relative abundance of species in a given area. ANNE E. MAGURRAN, ECOLOGICAL DIVERSITY AND ITS MEASUREMENT 3 (1988). An ecosystem is defined as a "dynamic complex of plant, animal, and micro organism communities and their non-living environment interacting as a functional unit." Biodiversity Convention, supra note 32, at art. 2(7). Generally, ecosystem diversity indicates the number and density of such ecological communities within a specified area depending greatly, however, on classification criteria used for ecosystems.
60. Biodiversity Convention, supra note 32, at art. 1. Generally, the treaty addresses three important interdependencies: those in and between ecosystems; those between environmental and socioeconomic problems; and those of states through interrelated world economies and one biosphere.
61. Id. at Preamble ¶ 22; United Nations Environment Programme, Preparation of an International Legal Instrument on the Biological Diversity of the Planet, Governing Council Decision 15/34 (1989).
62. Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, Oct. 12, 1940, 56 Stat. 1354 (entered into force Apr. 30, 1942) [hereinafter Western Hemisphere Convention]. Canada is not a party.
63. Id. at Preamble ("wishing to protect and preserve in their natural habitat representatives of all species and genera of their native flora and fauna, including migratory species, in sufficient numbers and over areas extensive enough to assure them from becoming extinct through any agency within man's control").
64. The U.S.-Canada North American Waterfowl Management Plan and the tripartite Memorandum of Understanding, Mar. 16, 1988, U.S.-Mex.-Can. (on Exchange of Information and Cooperation on Wetlands and Migratory Birds Refuges, and Establishing a Tripartite Committee to Develop a Strategy for the Conservation of Migratory Birds and Their Habitats), both further the objectives of the two migratory species conventions, i.e., the Convention for the Protection of Migratory Birds, Dec. 7, 1916, U.S.-Gr. Brit, T.S. 628, and the Convention for the Protection of Migratory Birds and Game Mammals, Feb. 7, 1936, U.S.-Mex., 50 Stat. 1311. The North American Wetlands Conservation Act, 16 U.S.C. §§ 4401-14 (1988), provides financial assistance for implementing both of these arrangements. See also Convention for the Protection of Migratory Birds in Danger of Extinction, and their Environment, Mar. 4, 1972, U.S.-Japan, 25 U.S.T. 3329; Convention for the Conservation of Migratory Birds and their Environment, Nov. 19, 1976, U.S.-U.S.S.R., 29 U.S.T. 4647.
65. Convention for Conservation of Anadromous Stocks in the North Pacific Ocean, Feb. 11, 1992, Can.-Japan-Russian Fed.-U.S. (entered into force Feb. 16, 1993) [hereinafter North Pacific Salmon Treaty]. The treaty prohibits directed fishing and pursues to minimize incidental fishing for seven anadromous salmon species and stock that intermingle in the high seas of Pacific Ocean.
66. Treaty Concerning Pacific Salmon, Jan. 28, 1985, U.S.-Can., T.I.A.S. 11,091 (entered into force Mar. 18, 1985) [hereinafter Pacific Salmon Treaty].
67. But see the Interim Agreement for the Conservation and Management of Canadian-origin salmon in the Yukon River Drainage, Dec 1994; see also the discussion in Part V, infra.
68. Report of the United Nations Conference on Environment and Development, June 3-14, 1992, U.N. Doc. A/CONF.151/26(vol. II) (1992) [hereinafter AGENDA 21].
69. UNCLOS was signed by the U.S. on July 29, 1994, and referred to the U.S. Senate Foreign Relations Committee on Oct. 7, 1994, together with the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of December 1982, July 28, 1994 [hereinafter UNCLOS Agreement]. See Current Status of the Convention on the Law of the Sea, Hearing Before the Senate Comm. on Foreign Relations, 103d Cong., 2d Sess. (1994).
70. The "recreated" deep sea-bed mineral resources regime is discussed in Commentary - The 1982 United Nations Convention on the Law of the Sea and the Agreement on Implementation of Part XI, in U.S. DEPT. OF STATE DISPATCH SUPP., Feb. 1995, at 5, 33-43.
71. The Biodiversity Convention was signed by the U.S. June 4, 1993 and reported favorably by the Senate Committee on Foreign Relations (reported by Mr. Pell) with a Resolution of advice and consent to ratification July 11, 1994. S. EXEC. REP. No. 30, 103d Cong., 2d Sess. (1994). In response to the problem areas which included also technology transfer (art. 16) and finances (arts. 20-21), the Clinton Administration developed seven understandings to be attached to the U.S. ratification instrument. Id. at 4-5, 24-25.
72. The treaty-based responsibilities of signatories are limited under the law of treaties. See notes 170-71, infra and accompanying text. The four 1958 Conventions on the Sea remain in force for the U.S. until UNCLOS is ratified. Canada is a party to both the UNCLOS and the Biodiversity Convention, supra note 32, but not to the Bonn Convention, supra note 30.
73. Here "land use" refers to all uses of natural areas and their resources within the watershed, whether protective or consumptive.
74. This limitation is best known as Principle 21 of the Stockholm Declaration on the Human Environment, U.N. Doc. A/CN.48/14/Rev. 1, 11 I.L.M. 1420 (1972), also included in art. 3 of the Biodiversity Convention, and generally accepted as a rule of customary international law today. See also RESTATEMENT, supra note 28, at § 601(1). The U.S. ratification of the Biodiversity Convention is made subject to an understanding that "Article 3 references a principle to be taken into account in the implementation of the Convention." See S. EXEC. REP. No. 30, 103rd Cong., 2nd Sess., at 24 (1994). In the Senate report, however, the committee correctly pointed out that such understanding does not limit any obligations on the U.S. already imposed by Principle 21. Id. at 23.
75. Report of the Conference, International Conference on Water and Environment: Development Issues for the 21st Century, Jan. 26-31, 1992, Rec. 4.15(a) at 30, U.N. Doc. A/CN.151/PC/112 (1992);
76. For aspects of land-use law and policy as derived from international law see generally CYRILLE DE KLEMM, AREA-BASED CONSERVATION AND THE LAW (1992);
77. A. Dan Tarlock, Land Use Choice: National Prerogative vs. International Policy, in INTERNATIONAL ENVIRONMENTAL LAW 214 (Ludwik A. Teclaff & Albert E. Utton eds., 1974).
78. Salmon habitat protection is reviewed in the next section.
79. Act of March 1, 1872, 17 Stat. 32.
80. The Commission on National Parks and Protected Areas (CNPPA) of the World Conservation Union (IUCN) has developed a protected area classification system according to the level of human presence in the areas. The categories constitute a continuum between Scientific Reserves/Strict Nature Reserves, and Multiple-use Management Areas/Managed Resource Areas. IUCN, CATEGORIES, OBJECTIVES AND CRITERIA FOR PROTECTED AREAS (1978).
81. DE KLEMM, supra note 52, at 43-44; IUCN & CNPPA, UNITED NATIONS LIST OF PARKS AND PROTECTED AREAS (1990).
82. Ramsar Convention, supra note 29. The List of Wetlands of International Importance is maintained by the IUCN, supra note 55, under articles 2(1) and 8(1) of the Ramsar Convention. As of March, 1992, the list consisted of 538 wetland areas from 64 member states totaling approximately 325 million hectares. See WORLD CONSERVATION MONITORING CENTRE (WCMC), GLOBAL BIODIVERSITY - STATUS OF THE EARTH'S LIVING RESOURCES 475-477 (1992) [hereinafter WCMC].
83. For details see A DIRECTORY OF WETLANDS OF INTERNATIONAL IMPORTANCE, SITES DESIGNATED FOR THE RAMSAR LIST OF WETLANDS OF INTERNATIONAL IMPORTANCE (Tim Jones compiler, 1993).
84. UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, Nov. 23, 1972, 27 U.S.T. 37; 11 I.L.M. 1358 (1972) (entered into force Dec. 17, 1975) [hereinafter World Heritage Convention]. By March 1992, only 95 sites were listed in the World Heritage List on the merits of their natural features. See WCMC, supra note 57. The World Heritage Convention's focus is on natural areas of "outstanding universal value" as defined in article 2 of the Convention, and in the World Heritage Committee's Operational Guidelines for the Implementation of the World Heritage Convention, U.N. Doc. No. WHC/2 (revised Jan. 1984), reprinted in part in SIMON LYSTER, INTERNATIONAL WILDLIFE LAW 213 (1985).
85. United Nations Environment Programme, Secretariat Proposal for Elements for Possible Inclusion in a Global Framework Legal Instrument on Biological Diversity, U.N. Doc. UNEP/Bio.Div/WG.2/1/1 (1990) (containing actually two lists for areas and threatened species).
86. See generally SIMON LYSTER, INTERNATIONAL WILDLIFE LAW (1985).
87. The minimum general requirement is one wetland designation per contracting party. Ramsar Convention, supra note 29, at art. 2(4).
88. Listed areas are often already provided an effective conservation status at the domestic level. In those cases, listing may enforce the protection of designated wetland sites without increasing de facto protected base. Criteria for the domestic (normative-administrative) conservation status was left open in both Ramsar and World Heritage Conventions. This has led to mixed state practices. The U.S. has nominated only wetlands which are already protected nationally. LYSTER, supra note 58, at 216. Great Britain, Holland, and Norway have followed this path whereas Denmark, Sweden, and Canada have generally interpreted the provisions to include non-protected areas as well. See Veit Koester, The Ramsar Convention on the Conservation of Wetlands, A Legal Analysis of the Adoption and Implementation of the Convention in Denmark 12 (1989) (IUCN Environmental and Policy Paper No. 23).
89. Ramsar Convention, supra note 29, at art. 2(1).
90. Id. at art. 3 ("Parties shall formulate and implement their planning so as to promote the conservation of the wetlands included in the List, as far as possible the wise use of wetlands in their territory"). Wise use was defined by the parties at the Regina Conference (1987) as sustainable utilization that is compatible with the maintenance of the natural properties of wetland ecosystems, that is "those physical, biological or chemical components, such as soil, water, plants, animals and nutrients, and the interactions between them." See Navid, supra note 33, at 1012-13 (quoting Recommendation 3.3 and the Annex of the conference).
91. Impact assessment is, however, made part of Ramsar's toolbox. See Navid, supra note 33, at 1012-13 (quoting the Annex to the Regina Recommendation, Guidelines to wise use).
92. Ramsar Convention, supra note 29, at art. 3(2).
93. Id. at art. 4(2) (addressing loss resulting from deleting or restricting a listed area). Compensation refers in particular to creation of additional nature reserves and "protection, either in the same area or elsewhere, of an adequate portion of the original habitat."
94. Western Hemisphere Convention, supra note 40, at art. II(1). Parties are requested to notify the Pan American Union, Organization of American States, of their activities regarding protected areas. Id. at art. II(3). This provides publicity and implicitely creates a "list." The Annex to the treaty lists species to be protected as matters of urgency "as completely as possible." Id. at art. VIII.
95. Ramsar Convention, supra note 29, at art. 4(1). Like the wise use requirement of art. 3(1), this provision, too, applies to all wetlands in the territory of parties. Id.
96. Biodiversity Convention, supra note 32, at art. 8(a) (emphasis added). The provision is subject to the "as far as possible and appropriate" qualification attached to most provisions of the Convention. A protected area is defined as a "geographically defined area which is designated or regulated and managed to achieve specific conservation objectives." Id. at art. 2.
97. Systematic conservation is "the conscious maintenance of the full range of natural diversity, e.g., species, communities, habitats, and ecosystems on a representative basis." Nyle C. Brady, International Development and the Protection of Biological Diversity, in BIODIVERSITY 409, 411 (E.O. Wilson ed., 1988). In addition, "[b]ecause we lack full knowledge of the identity and number of all species, let alone their distribution and habitat requirements, efforts to achieve systematic conservation must necessarily focus on higher levels of organization such as the habitat or ecosystem." Id.
98. In the language of the Biodiversity Convention, supra note 32, at art. 2, in situ conservation means the conservation of ecosystems and natural habitats so as to maintain and recover viable populations of species in their natural surroundings, i.e., "conditions where genetic resources exist within the ecosystems and natural habitats." Id. Ex situ conservation, i.e., conservation of biodiversity outside natural surroundings (in zoos, gene banks, etc.) has a supplementary role with respect to in situ measures in the Convention. Id. at Preamble and art. 9.
99. Biodiversity Convention, supra note 32, at art. 7.
100. Id. at art. 7(a).
101. Id. at art. 7(c) (also calling for monitoring their effects).
102. Id. at Annex I. States should identify (1) ecosystems and habitats: containing high diversity, large numbers of endemic or threatened species, or wilderness; required by migratory species; of social, economic, cultural, or scientific importance; or, which are representative, unique, or associated with key evolutionary or other biological processes; (2) species and communities which are, e.g.: threatened, wild relatives of domesticated or cultivated species; of social, scientific or cultural importance; or importance for research in the conservation and sustainable use of biological diversity, such as indicator species; and (3) described genomes and genes of social, scientific, or economic importance. Earlier in the drafting stage some of these criteria were included in the article on in situ conservation measures to guide the selection and establishment of protected areas. Revised Draft Convention on Biological Diversity, Ad-Hoc Working Group of Legal and Technical Experts on Biological Diversity, 3rd Sess., at art. 6(a)12, U.N. Doc. UNEP/Bio.Div/WG.2/3/3 (1991).
103. At that time, conservation measures were also called for in areas that contain "species identified pursuant to any international agreement, including this Convention, as requiring conservation measures or which a migratory species inhabits, stays in temporarily, crosses, or overflies at any time on its normal migratory route." Id.; see also Second Revised Draft Convention on Biological Diversity, Intergovernmental Negotiating Committee for a Convention on Biological Diversity, 4th Sess., at 8, U.N. Doc. UNEP/Bio.Div/INC.4/2 (1991).
104. See, e.g., Fourth Revised Draft Convention on Biological Diversity, Intergovernmental Negotiating Committee for a Convention on Biological Diversity, at 11, U.N. Doc. UNEP/Bio.Div/N6-INC.4/2 (1991) [hereinafter Fourth Revised Draft Convention).
105. Biodiversity Convention, supra note 32, art. 8(a). Travaux preparatories suggests that the system refers to a network of protected areas covering elements of biodiversity identified pursuant to art. 7 and Annex 1. Second Revised Draft Convention, supra note 76.
106. AGENDA 21, supra note 46, at ¶ 15.5(g). See also id. ¶ 11.14(b) (discussing forests).
107. Only relatively small coastal watersheds would be suitable for inclusion entirely within protected areas. Factors capable of affecting preserved riverine segments within larger watersheds should, however, be addressed in order to ensure their integrity in the long-term.
108. The National Wild and Scenic Rivers Act (WSRA) of 1968 provides for preservation of selected (outstanding, free-flowing, not significantly degraded) rivers and river segments on public, state, and private lands. 16 U.S.C. §§ 1271-87 (1988 & Supp. V 1993). It is being estimated that less than 2% of rivers nation-wide would qualify under WSRA criteria. A.C. Benke, A Perspective on America's Vanishing Streams, 9 J. NORTH AM. BENTHOL. SOC'Y 77 (1991),
109. cited in BOB DOPPELT ET AL., ENTERING THE WATERSHED XXV 148 n.149 (1993) [hereinafter DOPPELT]. For the WSRA' s limitations as well as future prospects, see generally DOPPELT, id. at 136-52.
110. Problems are bound to vary between protected area instruments and reserve location. See, e.g., OUR COMMON LANDS: DEFENDING THE NATIONAL PARKS (David J. Simon ed., 1988);
111. George C. Coggins, Protecting the Wildlife Resources of National Paris From External Threats, XXII LAND & WATER L. REV. 1 (1987);
112. A. Dan Tarlock, Protection of Waterflows for National Parks, XXII LAND & WATER L. REV. 29 (1987).
113. The so-called 1978 Redwood Parks Amendment to the National Park Service's organic act, is held to impose clear duty on the Secretary of the Interior to protect the park integrity. 16 U.S.C. §§ 1a-1 (1988). Effective transboundary enforcement, however, has not yet been approved by the courts. See Robert B. Keiter, Taking Account of the Ecosystem on the Public Domain: Law and Ecology in the Greater Yellowstone Region, 60 U. COLO. L. REV. 923, 948-51 (1989) [hereinafter Keiter, Taking Account];
114. Robert B. Keiter, Beyond the Boundary Line: Constructing a Law of Ecosystem Management, 65 U. COLO. L. REV. 293, 305-07 (1994) [hereinafter Keiter, Beyond the Boundary Line]. The situation is similar with wilderness areas and wildlife refuges.
115. Convention on Biological Diversity, opened for signature June 5, 1992, 31 I.L.M. 818, at art. 8(c) (1992) (entered into force Dec. 29, 1993) ("regulate and manage biological resources important for the conservation of biological diversity whether within or outside protected areas") [hereinafter Biodiversity Convention]; see also id., at art. 8(1) ("regulate and manage the relevant processes and categories of activities" with significant adverse effects); id. at art. 8(b) (suggesting guidelines for selecting, establishing and managing protected areas).
116. "The very essence of zoning is the territorial division of land into use districts according to the character of the land [and buildings], the suitability of the land [and buildings] for particular uses, and the uniformity of the use." 83 AM. JUR. 2D Zoning and Planning at 36.
117. DE KLEMM, supra note 52, at 54. For comparative examples of buffer zone practices in different countries, see id. at 54-57.
118. Biosphere Reserves are part of UNESCO's Man and the Biosphere (MAB) Programme launched in 1971. In March 1992 the Biosphere Reserve Network consisted of 300 reserves and over 160 million hectares. WCMC, supra note 57, at 475-477 (table 29.8).
119. See N. Ishwaran, Biodiversity, Protected Areas and Sustainable Development, 28 NATURE & RESOURCES 18, 19 (1992).
120. Biodiversity Convention, supra note 84, at art. 8(e). Within the Ramsar regime this is pursued through the wise use requirement.
121. For instance, the (U.S.) National Park Service is not in support of buffer zones around protected areas but seeks to ensure non-impairment from external threats through cooperation with surrounding land owners. See DEPT. OF INTERIOR, NATIONAL PARK SERVICE, 1 NPS MANAGEMENT POLICIES 4 (1988), cited in DOPPELT, supra note 81, at 295 n.772-73.
122. See DE KLEMM, supra note 52, at 55-6 (contending that "protected-area minded physical planning" which aims at integrating protected areas to their physical, economic and social surroundings could involve locating potentially hazardous developments "in areas where they are least likely to cause harm to parks and reserves through increased visitor pressure, water use, pollution or other factors"). See also id. at 62 (stating that "a protected area should be able, as a function of its size and vulnerability, to attract as if by gravity the adoption of specific planning rules and restrictions in the surrounding environment and particularly within the whole of watershed concerned").
123. See generally Keiter, Taking Account, supra note 83.
124. The 1,000,000-acre Reserve was established in 1978. 16 U.S.C. § 471i (1988). A comprehensive management plan is developed by the Pinelands Commission in consultation with relevant local and state jurisdiction and with the assistance and approval of the federal government. The purpose of the plan is to assure the orderly public and private development consistent with the protection, preservation and enhancement of the pine-oak forests, surface and ground water resources, and flora and fauna of the area. Id. § 471i(b)(1-2). Changes in management plan and all laws, regulations and policies which implement the plan are subject to approval of the Secretary of the Interior, and violators from any jurisdiction may be liable for reimbursement of federal funds. Id. § 471i(g)(6).
125. See ICUN, supra note 55; P.H.C. LUCAS, PROTECTED LANDSCAPES, A GUIDE FOR POLICY-MAKERS AND PLANNERS (1992).
126. Ishwaran, supra note 88, at 20. The degree to which buffer zones are given protective (extending protected areas) or social (providing benefits for local people) functions depends on the instruments. In case of Biosphere Reserve buffer zones the emphasis seems to be on the latter. Id. at 19.
127. See the Caracas Declaration (on Parks, Protected Areas and the Human Future) adopted at the Fourth World Congress on National Parks and Protected Areas (Feb. 10-21, 1992), urging states to "consolidate and enlarge national systems of well-managed protected areas with buffer zones and corridors, so that by the year 2000 they safeguard the full representative range of land, freshwater, coastal and marine ecosystems of each country and allow these ecosystems to adapt to climate change," reprinted in 22 ENVTL. POL'Y & L. 121-22 (1992).
128. Ecological corridors ("routes or avenues") are defined in the Fourth Revised Draft Convention, supra note 77, at 6. Within the European Union the Council Directive 92/43/EEC on the Conservation of Natural Habitats and Wild Fauna and Flora, art. 10(2), 1992 O.J. (L 206) 7, addresses in particular the importance of landscape features that "by virtue of their linear and continuous structure (such as rivers with their banks) or their function as stepping stones (such as ponds) are essential for the migration, dispersal and genetic exchange of wild species." Id.
129. See generally Keiter's articles, supra note 83.
130. Retroactive species-by-species habitat zoning is provided, e.g., under the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-44 (1988). Critical habitat designations for listed species take into account only those conditions and management requirements deemed essential for each particular species. Id. § 1532(5)(A)(i). Although other species, habitats, and the ecosystem may benefit from these designations, they will not, however, prevent habitat modifications which may be detrimental to other than listed species, as noted by Holly Doremus, Comment, Patching the Ark: Improving Legal Protection of Biological Diversity, 18 ECOLOGY L.Q. 265, 308 (1991).
131. See, e.g., M.L. Murphy & William R. Meehan, Stream Ecosystems, in INFLUENCES OF FOREST AND RANGELAND MANAGEMENT ON SALMONID FISHES AND THEIR HABITAT 17, 43-44 (William R. Meehan ed., 1991).
132. FOREST SERVICE, U.S. DEP'T AGRIC. & BUREAU OF LAND MANAGEMENT, U.S. DEP'T INTERIOR, ENVIRONMENTAL ASSESSMENT FOR THE IMPLEMENTATION OF INTERIM STRATEGIES FOR MANAGING ANADROMOUS FISH-PRODUCING WATERSHEDS IN EASTERN OREGON AND WASHINGTON, IDAHO, AND PORTIONS OF CALIFORNIA (1994) [hereinafter PACFISH EA]. PACFISH is described as "an ecosystem-based, aquatic habitat and riparian-area management strategy" to be applied on agency lands. Id. at 2.
133. "Aquatic Conservation Strategy is a habitat-based approach to maintaining and restoring aquatic and riparian habitats and watersheds on federal lands within the range of the northern spotted owl." 1 FOREST SERVICE, U.S. DEP'T AGRIC. & BUREAU OF LAND MANAGEMENT, U.S. DEP'T INTERIOR, FINAL SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT ON MANAGEMENT OF HABITAT FOR LATE-SUCCESSIONAL AND OLD-GROWTH FOREST RELATED SPECIES WITHIN THE RANGE OF THE NORTHERN SPOTTED OWL, chs. 3, 4 (1994) [hereinafter FEIS]. Riparian reserves are one of four elements (Key Watersheds, watershed analysis, Watershed Restoration) in the strategy. Id. at Vol. 2, App. B6. The strategy (Alternative 4) was adopted on Feb. 24, 1995. 60 Fed. Reg. 11,655 (1995).
134. See, e.g., FOREST SERVICE, U.S. DEP'T AGRIC. & BUREAU OF LAND MANAGEMENT, U.S. DEP'T INTERIOR, STANDARDS AND GUIDELINES FOR MANAGEMENT OF HABITAT FOR LATE-SUCCESSIONAL AND OLD-GROWTH FOREST RELATED SPECIES WITHIN THE RANGE OF THE NORTHERN SPOTTED OWL C-30-38 (1994) (prohibiting and regulating timber harvest and other activities in riparian reserves with the view of attaining the Aquatic Conservation Strategy objectives).
135. National Forest Management Act (NFMA) of 1976, 16 U.S.C. §§ 1600-16 (1988), § 1604(g)(3)(E) (restricting timber harvest for the protection of streams, streambanks, shorelines, lakes, wetlands, and other bodies of water where harvests are likely to seriously and adversely affect water conditions or fish habitat); NFMA implementing regulations, 36 C.F.R. § 219.27(e) (requiring special attention to land and vegetation within a 100-foot zone from the edge of the water, prohibiting practices which affect water conditions or fish habitat through changes in water temperature, blockages, or sediment deposits); id. § 219.27(g) (conditionally requiring management prescriptions that would preserve and enhance the diversity of plant and animal communities subject to reductions "needed to meet overall multiple-use objectives"); Tongass Timber Reform Act of 1990, Pub. L. No. 101-626, 104 Stat. 4426 (1990) (establishing a minimum 100-foot buffer zone along major anadromous fish-bearing streams in the Tongass National Forest, Alaska). Current buffer practices have been found inadequate for protecting anadromous fish habitat in Pacific Northwest and Alaska. FOREST SERVICE, U.S. DEP'T AGRIC, REPORT TO CONGRESS, ANADROMOUS FISH HABITAT ASSESSMENT 4, 7-8 (1995) [hereinafter ANADROMOUS FISH HABITAT ASSESSMENT].
136. Biodiversity Convention, supra note 84, at art. 8(a).
137. Id. at art. 6(b).
138. Id. at art. 6(a) (development of national strategies for conservation and sustainable use of biodiversity); Report of the United Nations Conference on Environment and Development, June 3-14, 1992, U.N. Doc. A/CONF.151/26(vol. II), 8.7 (1992) (adopting a strategy for sustainable development) [hereinafter AGENDA 21].
139. Biodiversity Convention, supra note 84, at art. 8(d).
140. Id. at art. 8(f).
141. Id. at art. 8(k).
142. Id. at art. 8(l). "Conditions" refers to legal and financial arrangements which would provide for, favor, and encourage compatible uses of land. See Revised Draft Convention on Biological Diversity, supra note 76, at 13. Art. 11 of the present Convention contains a separate provision on incentives.
143. Biodiversity Convention, supra note 84, at arts. 8(c), 8(l).
144. Id. at art. 2 § 16 (defining sustainable use in its entirety as "use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations"). The relationship between conservation and sustainable use was covered with confusion during the drafting of the biodiversity convention. For example, the Fourth Revised Draft Convention still held that the conservation of biological diversity included the maintenance, sustainable use, and enhancement of its components. See Fourth Revised Draft Convention, supra note 77, at 5. The final version of the treaty does not give any definition for conservation of biodiversity. Conservation and sustainable use appear as parallel objectives and with formal separation between measures related to them. Id. at arts. 8, 10. However, a closer examination of the substantive articles reveals the inseparable linkages between the two. See, e.g., id. at arts. 8(i), 10(a).
145. Cf. the National Forest Management Act and its implementing regulations, whose diversity provisions are held to constitute a substantively constraining factor for Federal forest management in the U.S. See 16 U.S.C. § 1604(g)(3)(B)(1988); 36 C.F.R. § 219.27(g); Keiter, Taking Account supra note 83, at 296;
146. CHARLES F. WILKINSON & H. MICHAEL ANDERSON, LAND AND RESOURCE PLANNING IN NATIONAL FORESTS 290-6 (1987). Perhaps the greatest difficulty lies, however, in extending biodiversity conservation and sustainable use requirements to private lands.
147. Biodiversity Convention, supra note 84, at art. 10(a);
148. AGENDA 21, supra note 107, at ch. 8; Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, at princ. 4, U.N. Doc.A/CONF.151/26 (1992).
149. Biodiversity Convention, supra note 84, at art. 7(a),(c); AGENDA 21, supra note 107, at art. 15.5(c).
150. Biodiversity Convention, supra note 84, at art. 8(l).
151. Id. at art. 10(b).
152. The article on impact assessments and minimizing adverse effects addresses both single projects and whole programmes and policies that are likely to have significant adverse effects on biological diversity. Id. at art. 14 ¶¶ 1(a), (b). However, EIS's are requested only for the former, whereas only "appropriate arrangements" are needed to ensure that the environmental consequences of the latter are duly taken into account. In the United States, the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. § 4321 (1988), mentions a diversity goal in § 4331(b)(4), but "this ambiguous reference has never been judicially transformed into requirement to examine biological diversity impact in all cases." Keiter, Beyond the Boundary Line, supra note 83, at 314.
153. Biodiversity Convention, supra note 84, at Preamble para 8.
154. Changes of laws and regulations may be needed especially where certain resource management practices are constantly recognized as having negative effects on biodiversity.
155. For a definition of cumulative effects, see note 5, supra.
156. The term anadromous salmon here means the Pacific salmon species and stocks in the genus Oncorhynchus (chinook, coho, sockey, chum, pink salmon, steelhead, and sea-run cutthroat trout) that spawn on the American continent. The North Pacific Salmon Treaty covers also cherry salmon, which is of Asian origin. Convention for Conservation of Anadromous Stocks in the North Pacific Ocean, Feb. 11, 1992, Can.-Japan-Russian Fed.-U.S. (entered into force Feb. 16, 1993) [hereinafter North Pacific Salmon Treaty]. This article will not address any species, stocks, or thereby any particular salmon stream. Salmon in general illustrate well the scope of ecological, ethical, economic, cultural, and social dimensions of any normative effort to solve international environmental problems.
157. In reviewing the legal status of migratory species in general, one author has grouped them into four categories depending on their migratory routes and patterns: i) those whose legal status does not change during their migration, because the migration is entirely performed within the limits of national jurisdiction; ii) those which migrate between areas under the jurisdictions of different States, for example in international rivers and lakes, and like anadromous salmon, between adjacent internal waters, territorial seas, or
158. For Pacific salmon distribution patterns see generally PACIFIC SALMON LIFE HISTORIES (C. Croot & L. Marcolis eds., 1991);
159. William R. Meehan & T.C. Bjornn, Salmonid Distributions and Life Histories, in INFLUENCES OF FOREST AND RANGELAND MANAGEMENT ON SALMONID FISHES AND THEIR HABITAT 47 (William R. Meehan ed., 1991) [hereinafter INFLUENCES OF FOREST AND RANGELAND MANAGEMENT).
160. See T.C. Bjornn & D.W. Reiser, Habitat Requirements of Salmonids in Streams, in INFLUENCES OF FOREST AND RANGELAND MANAGEMENT, supra note 125, at 17;
161. Mary F. Willson & Karl C. Halupka, Anadromous Fish as Keystone Species in Vertebrate Communities, CONSERVATION BIOLOGY, June 1995, at 489 (describing the role of salmon for aquatic and terrestrial wildlife).
162. United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 11 I.L.M. 1261 (1982) (entered into force Nov. 16, 1994) thereinafter UNCLOS].
163. Biodiversity Convention, supra note 84; Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979, 19 I.L.M. 15 (1980) (entered into force Nov. 1, 1983) [hereinafter Bonn Convention].
164. Nationalization refers here to the extension of sovereign rights and/or the exclusive jurisdiction of states over biota outside their territorial jurisdiction. See de Klemm, supra note 124, at 943. It implies functional rights and duties and not sovereignty. RESTATEMENT (THIRD) OF THE LAW, THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 511 cmt. b, 514 cmt. c (1987) [hereinafter RESTATEMENT].
165. UNCLOS, supra note 127, at art. 56. The extension of coastal states toward the high seas had started, however, significantly before the passage of UNCLOS. The United States has also seen such gradual extension. See the 1966 contiguous fishing zone expansion from three to twelve miles. Act of Oct. 14, 1966, Pub. L. No. 89-658, § 2, 80 Stat. 908 (1967); the establishment of a 200-mile fishery conservation zone by the Magnusson Fishery Conservation and Management Act of 1976, Pub. L. No. 94-265, § 402(a), 90 Stat. 331, 16 U.S.C. § 1801 (1988); the 1983 200-mile Exclusive Economic Zone, Presidential Proclamation No. 5030, 3 C.F.R. 2 (1983), 97 Stat. 1556; the 1988 Territorial Sea extension from three to 12 miles, Proclamation No. 5928, 3 C.F.R. 547 (1988), 43 U.S.C. § 1331 (1988).
166. UNCLOS, supra note 127, at arts. 66(1), 67(1).
167. Id. at art. 66(1).
168. Cyrille de Klemm, for example, would extend art. 67(1) to cover habitat destruction and construction of dams. De Klemm, supra note 124, at 948.
169. UNCLOS, supra note 127, at art. 192.
170. Id. at arts. 193, 235 (addressing responsibilities and liability in this regard).
171. Id. at arts. 61, 119.
172. Coastal states "shall ensure through proper conservation and management measures that the maintenance of the living resources in the [EEZ] is not endangered by overexploitation." Id. at art. 61(2); see also RESTATEMENT, supra note 129, § 514 cmt. f (referring to this provision as an obligation erga omnes under customary international law). In the case of harvested species, the interest lies in the production of maximum sustainable yield, and with associated or dependant species in keeping populations "above levels at which their reproduction may become seriously threatened." UNCLOS, supra note 127, at arts. 61(2); see also, id. at arts. 61(4), 119(1a), 119(1b).
173. Id. at Part XII (titled "Protection and Preservation of the Marine Environment"). None of the elements is defined in the treaty. Pollution of the marine environment is defined in id., at art. 1(4) (direct or indirect introduction of substances or energy into the marine environment, including estuaries, which results or is likely to result in deleterious effects such as harm to the living resources, for example).
174. Id. at art. 194(5).
175. Richard J. McLaughlin supports a limited scope for Part XII's protection regime based on the language adopted in articles 56, 145, 193, and 194(4). Richard J. McLaughlin, UNCLOS and the Demise of the United States' Use of Trade Sanctions to Protect Dolphins, Sea Turtles, Whales, and Other International Marine Living Resources, 21 ECOLOGY L. Q. 1, 39-41 (1994). He contends that these, and especially art. 193, affirm the view that conservation and management of living resources and the duty to protect and preserve the marine environment are distinct duties and, thus, "UNCLOS part XII creates no affirmative duty to protect threatened or endangered marine living resources unless the danger is caused by pollution of the marine environment." Id. at 41.
176. See, e.g., Willa Nehlsen et al., Pacific Salmon at the Crossroads: Stocks at Risk from California, Oregon, Idaho, and Washington, FISHERIES, Mar.-Apr. 1991, at 4;
177. ANADROMOUS FISH HABITAT ASSESSMENT, supra note 104, at 2-4 (discussing the "double jeopardy" facing Pacific Northwest and Alaska anadromous fishes due to their dependency on both marine and freshwater environments, and which could put the fish in high risk of extinction if confronted simultaneously with low marine productivity and degraded freshwater habitat).
178. See note 76, supra and accompanying text.
179. Convention on Biological Diversity, opened for signature June 5, 1992, 31 I.L.M. 818, at art. 22(1) (1992) (entered into force Dec. 29, 1993) [hereinafter Biodiversity Convention]. This is a notable departure from the "standard" treaty clauses that pursue non-interference with earlier agreements.
180. Id. at art. 22(2); UNCLOS, supra note 127, at art. 237(2).
181. UNCLOS requires cooperation, inter alia, when several states are engaged in fishing the same stocks in the high seas, on adjacent economic exclusion zones or, when the fish migrate through different jurisdictional zones. UNCLOS, supra note 127, at arts. 63(1), 63(2), 66(3), 66(4). To leave internal waters and territorial seas outside the scope of cooperative requirement was characterized as "a major gap" in the Convention by Cyrille de Klemm, Living Resources of the Ocean, in THE ENVIRONMENTAL LAW OF THE SEA 71, 129 (Douglas M. Johnston ed., 1981). Art. 197 of UNCLOS sets the general cooperation requirement for the protection and preservation of the marine environment. Other provisions on cooperation include arts. 61, 118, and 119.
182. Biodiversity Convention, supra note 143, at art. 5; AGENDA 21, supra note 107, at 15.7.
183. Treaty Concerning Pacific Salmon, Jan. 28, 1985, U.S.-Can., T.I.A.S. 11,091 (entered into force Mar. 18, 1985) [hereinafter Pacific Salmon Treaty]. Interception is "harvesting of salmon originating in the waters of one Party by a fishery of the other Party." Id. at art. I(4). The treaty contains harvest regulations for six specific fishery regimes attached to Annex IV.
184. The most recent dispute undermining the treaty arose over chinook salmon conservation and harvest in Alaskan waters in mid 1995. For background and an update, see Daniel D. Huppert, U.S./Canada Salmon Wars: Why the Pacific Salmon Treaty Has Not Brought Peace, Report no. 1, NEW DIRECTIONS IN MARINE AFFAIRS (School of Marine Affairs and Washington Sea Grant Program at the University of Washington, Seattle), Jan. 1996.
185. Conservation implies prevention of overfishing and providing for optimum production, whereas "equity" based allocation is "to provide for each Party to receive benefits equivalent to the production of salmon originating in its waters." See Pacific Salmon Treaty, supra note 147, at arts. III(1)(a), III(1)(b).
186. "Equity principle is basically a pragmatic reformulation of countries' state-of-origin principle for harvest of anadromous fish." Thomas C. Jensen, The United States-Canada Pacific Salmon Interception Treaty: an Historical and Legal Overview, 16 ENVTL. L. 363, 400 (1986);
187. see also Joy A. Yanagida, The Pacific Salmon Treaty, 81 AM. J. INT'L L. 577, 589 (1987) (clarifying that the equity principle does not mean that the country of origin has exclusive right to fish spawning in its waters).
188. On the high seas salmon regime, see Shannon C. Swanstrom, The Trend Toward Ecosystem-Based Management in the North Pacific Anadromous Fisheries, 6 COLO. J. INT'L. ENVTL. L. & POL'Y 225 (1995).
189. The treaty merely addresses "enhancement" in the meaning of "man-made improvements to natural habitats or application of artificial fish culture technology that will lead to the increase of salmon stocks." Pacific Salmon Treaty, supra note 147, at art. I(1). The equity principle should, in principle, provide the country of origin incentives for broader habitat protection. See Yanagida, supra note 149, at 590-91 (stating that the underlying objective behind the equity principle is to provide incentives for habitat maintenance, conservation, and enhancement); Huppert, supra note 148, at 1-4 (pointing out the difficulty of reaching concensus even on the issue of fair allocation).
190. Willa Nehlsen et al., Pacific Salmon at the Crossroads: Stocks at Risk from California, Oregon, Idaho, and Washington, FISHERIES, Mar.-Apr. 1991, at 4;
191. ANADROMOUS FISH HABITAT ASSESSMENT, supra note 104; Jensen, supra note 149, at 420 (noting that "[t]he [Pacific Salmon] Treaty should eliminate the threat posed by ocean harvest. Every bit as important, though, will be the conduct of those who control or affect salmon spawning habitat and freshwater migrating routes").
192. On responsible fishing, see the Declaration of Cancun, Conference on Responsible fishing, FAO Doc. No.: COFI/93/Inf.7 (1992); see also Conservation and Rational Utilization of Living Marine Resources with Special Reference to Responsible Fishing, FAO Doc. No.: COFI/93/5 (1993) (outlining the International Code of Conduct for Responsible Fishing including guidelines for integration of coastal fisheries into coastal areas management). For a discussion of "unit management," which also would bring habitats under a coherent regulatory system as a principle of fishery management and conservation for states and fishery organizations, see Douglas M. Johnston et al., The Environmental Law of the Sea: Conclusions and Recommendations, in THE ENVIRONMENTAL LAW OF THE SEA 387, 404 (Douglas M. Johnston ed., 1981).
193. Bonn Convention, supra note 128.
194. Endangered means "in danger of extinction throughout all or a significant portion of its range" and applies to species, populations, and any geographically separate part of the population of species or lower taxon of animals. Bonn Convention, supra note 128, at arts. I(1)(a), I(1)(e); cf. Robin Waples, National Oceanic and Atmospheric Administration, Definition of Species under the Endangered Species Act: Application to Pacific Salmon (1991) (NOAA Technical Memorandum NFSM F/NWC-194). An eligible species or "evolutionary significant unit [ESU] is a population (or a group of populations) that 1) is reproductively isolated from other conspecific population units, and 2) represents an important component in the evolutionary legacy of the species." Id. at 3. The U.S. National Marine Fisheries Service has adopted this ESU policy. 56 Fed. Reg. 58,612 (1991).
195. Bonn Convention, supra note 143, at arts. II(3)(b), III. The obligations are broad but conditioned (states "shall endeavor"). According to Simon Lyster, the obligation to endeavor may be breached, however, if non-performance is due to ignorance with no genuine attempt made. SIMON LYSTER, INTERNATIONAL WILDLIFE LAW 286 (1985).
196. Here the Bonn Convention coincides with similar provisions for wetland protection under the Ramsar Convention.
197. Bonn Convention, supra note 128, at art. IV(1). States agree to take action "paying special attention to migratory species, the conservation status of which is unfavorable, and taking individually or in co-operation appropriate and necessary steps to conserve such species and their habitats", acknowledging "the need to take action to avoid any migratory species becoming endangered." Id. at art. II(1-2).
198. Id. at arts. I(c), I(d) (defining the unfavorable conservation status). Other criteria include population data that indicate that the species cannot maintain itself as a viable component of its ecosystems, id. at art. I(c)(1), and species range which is currently being reduced or likely to be reduced on a long-term basis. Id. at arts. I(c)(2), I(d).
199. See id. at arts. II(3)(c), IV(3). Art. IV(4) appears to request such agreements for separate populations as well, but was apparently meant to just encourage states to cooperate in regard to their protection. LYSTER, supra note 155, at 291.
200. The goal is to restore or maintain the populations in favorable conservation status. The agreements should cover the whole range of the species and be open for all range states: guidelines for habitat protection include measures that would protect important habitats from disturbance, maintain a network of suitable habitats appropriately disposed in relation to the migration routes, and eliminate (to the extent possible) activities and obstacles that hinder or impede migration. Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979, 19 I.L.M. 15, at art. V (1980) (entered into force Nov. 1, 1983) [hereinafter Bonn Convention].
201. Simon Lyster is wary in respect to these separate agreements, anticipating problems common to all international environmental treaties: potential trade-offs between comprehensive participation, strong protection provisions, and timely action. LYSTER, supra note 155, at 290.
202. The positions taken by the U.S. and Canada on the issue are briefly discussed in Ralph Osterwoldt, Implementation and Enforcement Issues in the Protection of Migratory Species. Two Case Studies: Waterfowl in North America, Seals in Europe, 29 NAT. RESOURCES J. 1017, 1028-29 (1989).
203. Bonn Convention, supra note 160, at art. V(2).
204. Pacific Salmon Treaty, supra note 147, at arts. II(1), II(8); Convention for Conservation of Anadromous Stocks in the North Pacific Ocean, Feb. 11, 1992, Can.-Japan-Russian Fed.-U.S., at arts. IX(1), IX(13) (entered into force Feb. 16, 1993) (commonly called The North Pacific Salmon Treaty).
205. For example, stream-side buffer zones which might be suffident for salmon survival may be totally inadequate for larger animals such as bears. Similarity, barging salmon to and from their spawning grounds does not solve the adverse effects of dams to other riverine-riparian species.
206. Different definitions are given to the term ecosystem management/approach, as well as to its goals and measures of success. See CONGRESSIONAL RESEARCH SERVICE, THE ENVIRONMENT AND NATURAL RESOURCES POLICY DIVISION, ECOSYSTEM MANAGEMENT: STATUS AND POTENTIAL, S. REP. NO. 68, 103d Cong., 2d Sess. (1994);
207. Robert B. Keiter, Beyond the Boundary Line: Constructing a Law of Ecosystem Management, 65 U. COLO. L. REV. 293, 314-18 (1994);
208. DEPT. OF AGRICULTURE ET AL., FOREST ECOSYSTEM MANAGEMENT: AN ECOLOGICAL, ECONOMIC, AND SOCIAL ASSESSMENT, REPORT OF THE FOREST ECOSYSTEM MANAGEMENT ASSESSMENT TEAM, at IX-11 (1993) (ecosystem management defined as "[A] strategy or plan to manage ecosystems to provide for all associated organisms, as opposed to ... individual species");
209. ECOSYSTEM MANAGEMENT FOR PARKS AND WILDERNESS (James K. Agee & Darryl R. Johnson eds., 1988).
210. See, e.g., Jutta Brunnee & Stephen J. Toope, Environmental Security and Freshwater Resources: A Case for International Ecosystem Law, 5 Y.B. INT'L. ENVTL. L. 41, 55 (1994).
211. These include assessing criteria like biodiversity or viable population sizes, for example. Certain species may simplify the problem by serving as indicator species of their environment. For example, large herbivores whose ecology/biology is well-known and which have relatively large, seasonally migratory home ranges have been proposed as important indicator or umbrella species for resource management and reserve planning. See Thomas A. Hanley, Balancing Economic Development, Biological Conservation, and Human Culture: The Sitka Black-tailed Deer Odocoileus hemionus sitkensis as an Ecological Indicator, 66 BIOLOGICAL CONSERVATION 61, 61-67 (1993) (deer as an indicator for forest management in coniferous rain forests of southeastern Alaska, USA);
212. Michael F. Wallis de Vries, Large Herbivores and the Design of Large-Scale Nature Reserves in Western Europe, CONSERVATION BIOLOGY, Feb. 1995, at 25.
213. Sovereignty refers to the general bundle of competence that nation-states enjoy and award to each other in their societies. IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 287 (4th ed. 1990) (discussing sovereignty and equality of states as the basic constitutional doctrine of the law of nations);
214. MICHAEL AKEHURST, MODERN INTRODUCTION TO INTERNATIONAL LAW 16 (6th ed. 1987) (sovereignty as independence);
215. see also Judge Hubert's opinion in the Island of Palmas (Neth. v. U.S.) arbitration: "Sovereignty in relations between States signifies independence, independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the function of a State." II UNRIAA 28, at 829 (1929). The latter portion indicates self-determinacy, which implies also noninterference in national matters by other states. BROWNLIE, supra at 291. See also A. Dan Tarlock, Land Use Choice: National Prerogative vs. International Policy, in INTERNATIONAL ENVIRONMENTAL LAW 214 (Ludwik A. Teclaff & Albert E. Utton eds., 1974) (contending, inter alia, that "[i]international law and regulation is better suited for redressing past acts of damage and prohibiting specific acts than to initiate affirmative resource management programs", at 220; "[t]he problem of land use decision-making is [thus], too complex to warrant the creation of an international regulatory mechanisim at the present time", at 224; and that "[e]fforts to introduce global environmental considerations into development planning must be seen in this context [that the policies a nation tends to follow in developing its land and other natural resources are at the heart of its economic objectives], at 227-28).
216. Pacta sunt servanda and the good faith requirement are codified in Vienna Convention on the Law of Treaties, May 23, 1969, art. 26, 8 I.L.M. (1969) (entered into force Jan. 27, 1980, but not for the United States) [hereinafter Vienna Convention]; see also Restatement (Third) of the Law, The Foreign Relations Law of the United States § 312 (1987) [hereinafter RESTATEMENT].
217. The prohibition to frustrate the treaty applies from the moment of signing. Vienna Convention, supra note 170, at art. 18; RESTATEMENT, supra note 170, § 312(3) (stating that "[p]rior to the entry into force ... a state that has signed the agreement ... is obliged to refrain from acts that would defeat the object and purpose of the agreement"); see also, id., § 312 note 6, cmt. I (the latter discussing that "[t]his obligation continues until the state has made clear its intention not to become a party or if it appears that entry into force will be unduly delayed").
218. General or customary international law as defined in the Statute of International Court of Justice, art. 38(1), 1945, 59 Stat. 1055, T.S. No. 993, reflects such general practice of states that is accepted as required by law (opinio juris) and is principally binding on all (except dissenting) states. RESTATEMENT, supra note 170, § 102 (comments and notes thereto).
219. For critiques of the framework-protocol model, see, e.g., LAWRENCE E. SUSSKIND, ENVIRONMENTAL DIPLOMACY: NEGOTIATING MORE EFFECTIVE GLOBAL AGREEMENTS 30-37 (1994);
220. Developments in the Law-International Environmental Law, 104 HARV. L. REV. 1484, 1543-46 (1991);
221. see also David Hurlbut, Fixing the Biodiversity Convention: Toward a Special Protocol for Related Intellectual Property, 38 NAT. RESOURCES J. 379, 402-6 (1994) (proposing a protocol for products made with biota from pristine ecosystems).
222. Rudolf Bernhardt, Treaties, in 7 ENCYCLOPEDIA PUB. INT'L L. 459, 461 (Rudolf Bernhardt ed., 1984); see also statements made by Justice Mason of the High Court of Australia in the 1983 Tasmanian Dam case, which considered Australia's obligations under the World Heritage Convention (stating that "[n]either of these ['in so far as possible' and 'as appropriate for each country'] qualifications nor the element of discretion is inconsistent with the existence of an obligation [to perform]). Commonwealth of Australia v. State of Tasmania, 46 A.L.R. 624 (Austl. High Ct. 1983), cited and quoted in LYSTER, supra note 155, at 224.
223. Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development (UNCED), U.N. Doc. A/Conf.151/26 (1992), reprinted in 31 I.LM. 874. During the UNCED, the United States submitted, however, a statement for the record stating that: "[it] does not accept any interpretation of Principle 7 that would imply recognition or acceptance by the United States of any international obligations or liabilities, or any diminution in the responsibilities of developing countries." DISPATCH SUPPLEMENT, July 1992, at 35.
224. Precision is one objective criterion for self-executing agreements, as classified by Yuji Iwasawa, The Doctrine of Self-Executing Treaties in the United States: A Critical Analysis, 26 VA. J. INT'L L. 627, 653 (1986). Subjective criteria relate to the intent of the Parties, the Executive, and the Legislature. Primarily, and unless the parties have agreed otherwise, it is the intent of the United States that determines whether a treaty with the United States is self-executing. See RESTATEMENT, supra note 170, § 111, cmt. h.
225. U.S. CONST. art. VI, cl. 2. The Supremacy Clause addresses only "treaties" which are subject to the advice and consent requirement of the senate, U.S. CONST. art. II, § 2 cl. 1; RESTATEMENT, supra note 170, at § 303(1). All international agreements (subject to constitutional limitations) and customary international law (not dissented by the U.S.) share, however, the same status with treaties as a source of law. Id. at § 111, cmt. b; see generally Louis Henkin, International law as Law in the United States, 82 MICH. L. REV. 1555 (1984).
226. Self-executing treaties immediately prevail over prior Federal statutes and all State laws whereas non self-executing treaties "will not be given effect as law in the absence of necessary implementation legislation." RESTATEMENT, supra note 170, at § 111(3), cmt. h; Iwasawa, supra note 176, at 688. H.J. Justin & Sons, Inc. v. Brown, 519 F. Supp. 1,383 (1981), for example, held that the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is not self-executing, and that the implementing legislation (ESA), not the treaty, had the status of the law of the land. Id.
227. RESTATEMENT, supra note 170, § 111, n. 5 (stating that "[i]f a treaty is not self-executing for a state party, that state is obliged to implement it promptly, and failure to do so would render it in default on its treaty obligations"); LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 162 (1972).
228. This is the relative approach advocated by Iwasawa, which would allow non-self-executing agreements to be used subject to the conditions of specific situations (instead of "all-or-nothing"), to determine the legality of domestic statutes and state laws, and serve as interpretive devices in application of domestic laws. Iwasawa, supra note 176, at 691. See also Jordan J. Paust, Self-Executing Treaties, 82 AM. J. INT'L L. 760 (1988) (arguing that not directly operative treaties should be given effect through "indirect incorporation" and thus utilizing treaty norms as aids in interpreting the Constitution, statutes, common law and other legal provision).
229. For a different perspective, see John H. Jackson, Status of Treaties in Domestic Legal Systems. A Policy Analysis, 86 AM. J. INT'L L. 310-40 (1992).
230. If rigorously enforced, the current environmental legislation in the United States would provide a firm ground for starting to implement the central conservation and sustainable use obligations of the Biodiversity Convention. See Hearing before the Senate Foreign Relations Committee on the Convention on Biological Diversity, 103d Cong., 2d Sess. 7 (1994) (statement of Timothy E. Wirth, Councelor, Dept. of State, considering existing Federal, State, and private sector programs on biodiversity sufficient for meeting U.S. responsibilities under the treaty); see also S. EXEC. REP. No. 30, 103d Cong., 2d Sess. (1994).
231. Biodiversity Convention, supra note 143, at preamble ¶ 5.
232. State responsibilities are not confined to their territories and common spaces, but include their activities in other countries as well as support to developing countries through means of financing and technology transfer. See, e.g., Michael J. Glennon, Has International Law failed the Elephant?, 84 AM. J. INT'L L. 1, 34-35 (1990) (defining custodial and support obligations).
233. This development is not very well represented in the current Restatement. RESTATEMENT (THIRD) OF THE LAW, THE FOREIGN RELATIONS LAW OF THE UNITED STATES (1987). The section on the international law of the environment focuses almost solely on transboundary issues and marine pollution. Id.
234. See Biodiversity Convention, supra note 143, at art. 14(2), which mandates the Conference of the Parties to "examine, on the basis of studies to be carried out, the issue of liability and redress, including restoration and compensation, for damage to biological diversity, except where such liability is a purely internal matter." Id. For a discussion of ecosystems and environmental security in international relations, see Brunnee & Toope, supra note 167.
235. The legal status of the precautionary principle is still evolving. Most recent instruments have supported it and most earlier ones do not seem to preclude it. Even if the concept is about to be accepted as customary international law, its precise content and implications are not clear. See generally James Cameron & Juli Abouchar, The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment, 14 B.C. INT'L & COMP. L. REV. 1 (1991);
236. David Freestone, The Precautionary Principle, in INTERNATIONAL LAW AND GLOBAL CLIMATE CHANGE 21 (Robin Churchill & David Freestone eds., 1991);
237. Ellen Hay, The Precautionary Concept in Environmental Policy and Law: Institutionalizing Caution, 4 GEO. INT'L ENVTL. L. REV. 303 (1992).
238. Biodiversity Convention, supra note 143, at preamble ¶ 9.
239. Günther Handl, Environmental Security and Global Change: The Challenge to International Law, in ENVIRONMENTAL PROTECTION AND INTERNATIONAL LAW 59, 78 (Winfried Lang et al. eds., 1991);
240. ALEXANDRE KISS & DINAH SHELTON, INTERNATIONAL ENVIRONMENTAL LAW 115 (1991).
241. This kind of policy has been adopted in part by the PACFISH strategy, which applies interim measures until site-specific requirements for fish and riparian habitats have been determined in watershed analyses. See note 101, supra and accompanying text.