Environmental dispute resolution

The settlement of international environmental disputes is still scattered and de-centralised, i.e. it takes place before various fora. The appropriateness of judicial dispute settlement to deal with environmental controversies has been question. Scholars have argued that, due to the features of IEL law, rather than adversarial systems of judicial enforcement it is less confrontational and more managerial approaches that would improve compliance. In what follows, different means for the settlement of international environmental disputes will be examined.

Table 6.1 Comparison between different NCP mechanisms

MEA

CITES

Convention on the

International Trade of Endangered Species of Wild Fauna & Flora

Kyoto

Protocol

Montreal Protocol Aarhus

Convention

Cartagena Protocol

Type of NCP

Mechanism

Explicitly

Explicitly

Explicitly

Explicitly

Created in the Treaty CITES

This broad participation, combined with the ability of CITES to recommend effective sanctions, including trade suspensions, make it one of the most effective MEAs

Instituted in the treaty

Independent

Experts

Instituted in the treaty

State representatives

Instituted in the treaty

Independent

Experts

Instituted in the treaty'

Compliance

Article VIII (1): ‘The Parties

Annex I (Annex I

Annex IV: Non-

MOP in October

Article 29, paragraph 5

obligations and procedure

shall take appropriate measures to enforce the provisions of the present Convention and to prohibit trade in specimens in violation thereof’.

Party)

compliance procedure Annex III: Non-

compliance procedure

2002 the Meeting adopted a decision on review of compl iancc (Decision 1/7)

Article 34

MOP - Decision BS-1/7

(Continued'}

Non-compliance 157

en

00

MEA

CITES

Convention on the

International Trade of Endangered Species of Wild Fauna & Flora

Kyoto Protocol

Montreal Protocol

Aarhus

Convention

Cartagena

Protocol

Compl iancc

Committee

Compl iancc

Non-Compliance

Compliance

Compliance Committee

Mechanism

Broad membership

Committee

Mechanism

Committee

Independent experts

Standing Committee and not the Conference of the Parties decides on individual non-compliance measures

Although the CoP can review a particular case, its role is often to direct and oversee the general handling of compl iancc.

Made up of two branches: a facilitativc branch and an enforcement branch.

Multilateral

Fund

Independent experts

Regional representation

Triggering of the

Triggered treaty organ by

State concerned

Treaty organ and

State concerned and

State concerned and others

procedure

States

and others

others (all)

others (including NGOs)

(injured)

Expected Results

Effective

Assistance,

Assistance, request

Assistance, request

Advice or assistance, request

Assistance

sanctions, including trade

request for

for information

for information

to develop a compliance

Request for

suspensions, make it one of

information

warnings and

warnings and

action plan, measures

information, warning and sanctions

the most effective MEAs

warnings and sanctions

sanctions

sanctions

in the case of repeated non-compliance

New features of compliance

Source: Author’s own elaboration.

Formal methods available to the parties to an international environmental conflict (art 33 UN Charter), are of judicial and non-judicial nature (diplomatic), this latter offering the benefits of flexibility, cheapness, privacy and freedom to determine the details of the proceedings.[1] International environmental conflict resolution departs from traditional law-making and dispute settlement, directing attention towards the transnational character of the actors, processes (law-making and decision-making) and outputs instead. Referring to a wide range of areas, international law scholars identify the category of international rule-making, coining the term ‘informal international lawmaking’ (known as IN- LAW).

As regards judicial review or quasi-judicial proceedings, older MEAs do not provide for specific dispute settlement mechanisms, whereas more recent MEAs generally contain dispute settlement clauses. These clauses (such as Article 20 Basel Convention, Article 11 Vienna Convention and Article 14 UNFCC) usually stipulate that disputes should first be settled by negotiation or mediation. Failing to settle the dispute by these means, it may be brought before the ICJ or an arbitration body upon the condition that the Parties have accepted the compulsory obligation to submit disputes to these bodies. In some cases, these mechanisms work even short of the State’s consent and collaboration.

In recent years, the term ‘conflict resolution’ has prevailed over ‘dispute settlement’, which evokes a more formal institutionalization. International environmental conflict resolution alludes to mechanisms set outside formal governmental channels and structured around claims from civil society. IECR encompasses wide-ranging mechanisms.

The starting point for this approach is the conceptualisation of environmental conflicts. While there is no commonly accepted definition of these, there have been some attempts to define them in the literature. Some scholars define them as a subset of controversies involving not only conflicts over access and management of natural resources but also those which cover a combination of issues, such as health, race and ethnicity, economic development and governance, and multiple jurisdictions and levels thereof. Other scholars allude to disputes involving the use of natural resources or the choice of appropriate standards for environmental protection, or international conflicts caused by environmental problems.3"’ For the purpose of this chapter, this definition will be borne in mind; the term ‘informal environmental adjudication’ will also be used interchangeably.

IECR is consubstantial to cross-border cooperation between various actors, including the participation of public and private actors and/or international organizations. The IECR fora are characterised by their informality rather than the fact that they occur in a traditional international organization. In terms of actors, there is also a certain level of informality: IECR happens between actors other than traditional public actors (such as regulators or environmental agencies), and it is not based on a formal treaty or other traditional source of international law.[2] This framing provides a fertile ground for the conceptualization of IECR as a phenomenon which takes places outside formal governmental and state channels, comprising a wide range of actors and leading to the creation of specific norms.

Through IECR, parties to an environmental dispute resort to mechanisms that transcend the courtroom, going beyond institutionalized state channels and introducing other fora. In terms of the outcome of the process, IECR decisions do not constitute binding national or international law as such. The extent to which and manner in which formal channels take into consideration outputs stemming from these informal processes is still a matter of scholarly debate. This would be equivalent to ‘informal justice system’, drawing the distinction between state-administered formal justice systems and non-state administered informal justice systems. IECR emphasizes the global nature of IEL in a move away from the traditional state-centred mechanisms. Transnational IECR mechanisms are placed in the grey zone between law and non-law in terms of the resolution of the conflicts; the question that emerges is how to appropriately gauge the elements present in IECR to facilitate access to justice and settle a dispute.

First, there is the question of the role of IECR within the overall institutional justice architecture. Recent years have witnessed a proliferation of environmental courts and tribunals which conceivably furthers access to environmental justice, yet IECR and transnational law-making have become more significant. These new specialized environmental courts and tribunals require a new theoretical model capable of explaining and accommodating environmental adjudication. Why is it still necessary to resort to transnational conflict resolution processes? The answer is that, despite the possibility to submit claims before a growing

number of environmental courts and tribunals, their jurisdiction is still confined to territorial borders.[3] While there have been initiatives to create an International Environmental Court and other multi-national environmental adjudication bodies, they have not received significant support from States.

Finally, the organisation of IECR processes raises certain controversial issues. Often, IECR proceedings involve citizens acting as a ‘private attorney general’: namely, bringing a claim into the public interest. One of the controversial issues posed is whether it is appropriate for private individuals to claim to know and represent the public interest in such settings.

There is an ever-growing body of legal scholarship on environmental conflict resolution; however, interdisciplinary approaches are less common. Although a great deal of attention has been devoted to analysing the resolution of environmental conflicts through formal methods, few studies have emphasized the transnational law elements. Informality plays a significant role in the conceptualization of this type of conflict resolution, being the predominant sphere in which it takes place. Against this backdrop, the chapter fills a gap in the literature of transnational environmental law, contributing to reflections about the various manner in which environmental conflicts are settled.

a The actors

Traditionally, in the face of non-compliance with IEL norms, States have been endowed with the power to bring the controversy before international bodies. Progressively, the lists of actors involved in international environmental settlement have expanded to comprise non-state actors.

In principle, any party to a specific international environmental treaty or the treaty secretariat can kick-start a dispute resolution procedure for non-compliance. Wherever the treaty provisions allow for this, NGOs and members of the public may also put forward a complaint, submit a report or provide information to the body in charge of administering compliance with the treaty.

b The procedures

Although, in many cases, MEAs include the possibility to settle the dispute before an international judicial body, this is considered the last resort. Before adjudicating a particular dispute, treaties may indicate that the parties should attempt to resolve the dispute through other methods. In particular, mediation

and conciliation are considered steps that come before adjudicating a dispute. Mediation implies the assistance of a third party who acts as a mediator. The parties to the dispute retain control throughout the process. Other resolution methods include conciliation, enquiry and fact-finding. Parties may seek a non-formalised role for a third party. The resort to these various mechanisms can be foreseen in a staggered way.

Enquiry predominantly focusses on the determinations of facts, whereas conciliation may involve findings both of law and of fact. Again, party control remains paramount as State parties in the first instance are not legally required to follow any of the findings of these bodies. Arbitration constitutes another means of dispute settlement involving the intervention of a third party which can settle the dispute by issuing a legally binding decision. Early IEL cases have been settled through arbitration.

c Legal systems and values: fragmentation and international environmental law

Questions that are often posed in the context of international environmental dispute settlement concern the issue about fragmentation in IEL. Equally pertinent for the discussion of IEL dispute settlement is the questions of fairness, which, in turn, relates to the notion of environmental justice.

In terms of environmental justice, some of the claims on the international level revolve around injustice in the distribution of costs, including environmental risks; this prevents affected individuals and communities from bringing a matter before national courts. Amongst other limitations in addressing crucial environmental problems, the traditional conflict resolution system is mainly bilateral and state-centred, offering few possibilities for the participation of non-state actors. Non-state actors face constraints as they are often precluded from instituting proceedings in IEL. IECR mechanisms grant non-state actors greater access to justice, responding to stakeholders’ demands for equality before the law and during the proceedings. IECR processes seek to protect specific human rights and to enhance access to environmental justice.

  • [1] Birnie, Boyle, and Redgwell (n 9). 2 Ibid. 3 T.P. D’Estree, E.F. Dukes, and J. Navarrete-Romero, ‘Environmental Conflict and Its Resolution’, in R.B. Bechtel and A. Churchman (eds), Handbook of Environmental Psychology (Wiley 2002). 4 L. Susskind and A. Weinstein, ‘Towards a Theory of Environmental Dispute Resolution’ (1980) 9 BC Environmental Affairs Law Review, pp. 311, 312, available at http://lawdigitalcommons. bc.edu/ealr/vol9/iss2/4 accessed 10 March 2019. 5 Cesare Romano, The Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach (International Environmental Law and Policy Series, Vol 56 2000), p. 4.
  • [2] Joost Pauwelyn, ‘Informal International Lawmaking: Framing the Concept’, in Pauwelyn, Wessel and Wouters (n 7) pp. 13-34, at 22. 2 Ewa Wojkowska, Doing Justice: How Informal Justice Systems Can Contribute (United Nations 2006), available at https://www.un.org/ruleoflaw/blog/document/doing-justice-how-informal-justice-systems-can-contribute/ accessed 1 April 2020. 3 Malgosia Fitzmaurice and Catherine Redgwell, ‘Environmental Non-compliance Procedures and International Law’ (2000) 31 NYIL, pp. 35-65. 4 D.C. Smith, ‘Environmental Courts and Tribunals: Changing Environmental and Natural Resources Law Around the Globe’ (2018) 36(2) Journal of Energy & Natural Resources Law, pp. 137-140. 5 C. Warnock, ‘Reconceptualising Specialist Environment Courts and Tribunals’ (2017) 37(3) Legal Studies, pp. 391-417.
  • [3] R.J. Lazarus, ‘Pursuing ‘Environmental Justice: The Distributional Effects of Environmental Protection’ (1992) 87 Northwestern University Law Review, p. 787. 2 O.W. Pedersen, ‘An International Environmental Court and International Legalism’ (2012) 24(3) Journal of Environmental Law, pp. 547-558. 3 Philippe Sands, ‘International Environmental Litigation and Its Future’ (1999) 32 University of Richmond Law Review., p. 1619, available at http://scholarship.richmond.edu/lawreview/ vo!32/iss5/7 accessed 1 April 2020.
 
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