Environmental dispute settlement within the United Nations systemby

Peter A. MurrayOECS Environment and Sustainable Development Unit

Morne Fortuné,P.O. Box 1383, Castries

Saint Lucia

Introduction 1. The settlement of disputes among Parties to most multilateral

environmental agreements (MEAs) will include provision for a process for compulsory, binding arbitration and conciliation1. In addressing the question of dispute settlement within the United Nations (UN) system, we should first consider the mechanisms available for such settlement. The 1899 Convention for the Pacific Settlement of International Disputes2 and its “upgrade” of 19073 provide for a number of dispute settlement mechanisms, namely: good efforts of the parties4, good offices and mediation5, international commissions of inquiry6, and international arbitration7; the latter being considered to be the “most effective, and at the same time, the most equitable means of settling disputes where diplomacy has failed”8. The Charter of the United Nations, meanwhile, lists “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice”9.

2. “Best efforts” can be taken to equate to the diplomatic negotiation of a settlement by the parties to the dispute; this is implicitly supported by the above quotation from article 38 of the 1907 Convention. Negotiation comprises of “proposals made by one or other of the parties to a dispute and the reaction of the other party, including counterproposals, in order to reach an agreement”10. The role of an international commission of inquiry is to facilitate a solution to the dispute by “elucidating the facts by means of an impartial and conscientious investigation”11 and is “limited to a statement of facts, and has in no way the character of an Award … (leaving) to the parties entire freedom as to the effect to be given to the statement”.12 Mediation consists of bringing the parties to a dispute together and submitting

1University of Joensuu, 2007. Multilateral Environmental Agreement Negotiator’s Handbook, Second edition 2007, University of Joensuu – UNEP Course Series 5, Joensuu. p 2-22.21899 Convention for the Pacific Settlement of International Disputes www.pca-cpa.org/upload/files/1899ENG.pdf [accessed 18 December 2007]3 1907 Convention for the Pacific Settlement of International Disputes www.pca-cpa.org/upload/files/1907ENG.pdf [accessed 18 December 2007]: hereinafter referred to as the 1907 Convention4 The 1907 Convention, Part I, Article 15 Ibid. Part II, Article 26 Ibid. Part III, Article 97 Ibid. Part IV, Article 378 Ibid. Part IV, Article 389 Charter of the United Nations. Article 33(1) 10 Kiss, A., 2005, Introduction to International Environmental Law; 2nd Revised Edition, UNITAR, Geneva Switzerland, p.6311 The 1907 Convention, Part III, Article 912 Ibid. Part III, Article 35; parentheses mine. See also Kiss, A., 2005, p.63

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to them concrete proposals for the settlement of the dispute13, thus “reconciling the opposing claims and appeasing the feelings of resentment which may have arisen between the States”14. Conciliation is a combination of enquiry and mediation whereby some third party first establishes the facts of the case and then makes proposals for the settlement15. Arbitration is the settlement of a dispute by a third party whose decision is binding on the parties by prior acceptance16 and implies “an engagement to submit in good faith to the Award”17.

3. Over the last two decades there has been a dramatic increase in the volume of judicial decisions on environmental issues as a result of global and local awareness of the link between damage to human health and to the ecosystem and a whole range of human activities18. Kiss suggests that judicial settlement generally means a decision by the International Court of Justice whose scientific and moral authority is such that rulings stated in its decisions are generally considered to express customary international law19. It is noteworthy that transboundary environmental disputes, when compared to those of a different focus, are unique: the international legal arrangements are conveniently organised on a territorial basis as, with some exceptions, only States can achieve standing before the main adjudicatory organs of international law20. Of course, other arbitrators can be utilised; in fact Article 95 of the UN Charter states that even though the Charter mandates that disputes may be referred to the ICJ this does not prevent Members from the settlement of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future21. The 1907 Convention created the Permanent Court of Arbitration (PCA) but also allows for a Sovereign or Chief of State to serve in this role22.

4. Recourse to regional arrangements, as well as to international organisations, provides a “middle of the road” between the finality of legal settlement and flexibility of diplomatic approaches. This is particularly significant since very few disputes are solely legalistic. When parties to a dispute resort to regional agencies or arrangements23 it is expected that they will follow the procedures established by or within these arrangements24 with regard to the outcome of the settlement mechanism. These procedures, like all the other dispute resolution procedures mentioned in the preceding paragraphs, should be consistent with values and

13 Kiss, 2005, p.6314 The 1907 Convention, Part II, Article 415 Kiss, 2005, p.6416 Kiss, 2005, p.6417 The 1907 Convention, Part IV, Article 3718 Compendium of Judicial Decisions on matters related to the environment. International Decisions. Volume 1. December 1998. p v.19 Kiss, 2005, p.6420 This can pose problems since in many cases private individuals are involved either as culprits or seekers after redress from damages21 Charter of the United Nations, Article 9522 The 1907 Convention, Article 5623 Charter of the United Nations, Article 5224 Kiss, 2005, p.64

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criteria that will maximise the ability of the parties to work cooperatively and adaptively25. The procedures and mechanisms should26:

Operate efficiently, minimising duration and expense Ensure collection and sharing of the best possible scientific evidence Be fair, equitable, impartial and should achieve sound legally reasoned and fact based

results Be mindful of the equitable principle of shared but differentiated responsibility Be transparent Be based on laws that already bind participants, on precedent and on lessons from past

successes and failures

5. Having outlined the mechanisms available for the settlement of disputes it is now left to us to consider the institutions within the UN system that may play a role in dispute settlement. Dispute settlement procedures tend to be internalised within the institutions, procedures and rules of specific regimes that directly deal with implementation, with the focus actually being on compliance rather than conflict resolution. Sand points out that “… the so-called UN system is an aggregate rather than a hierarchy of institutions with each of the specialized agencies (having) their own constituency of member states, a legal personality of its own …”27 Figure 1 represents a perspective on how environmental law fits within this system 28. Based on this I will, in the following sections, explore the scope for settlement of environmental disputes within this framework. In this regard, I shall only speak to the entities that I have concluded have some role in dispute settlement.

UN environmental dispute settlement bodiesUnited Nations General Assembly6. As the highest decision making body of the UN, it appears almost implicit that the General

Assembly could be utilised to settle disputes that may arise between States in the realm of environmental matters. Article 35 of the UN Charter states that “any member of the United Nations may bring any dispute … to the attention … of the General Assembly”29 provided it is of a nature that might “lead to international friction or give rise to a dispute … (that) is likely to endanger the maintenance of international peace and security”30. To the extent that some environmental issues are increasingly being considered to have implications for international security31, the General Assembly can conceivably be asked to play a role in

25 Downes, D. and B. Penhoet, 1999. Effective Dispute Resolution – A Review of Options for Dispute Resolution Mechanisms and Procedures. Prepared for the fifth session of the Multilateral high-Level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific. Prepared by the Center for International Environmental Law for the World Wildlife Fund-US. p 3-4. http://www.ciel.org/Publications/effectivedisputeresolution.pdf [accessed December 4, 2008]26 Ibid. p 4-527 Sand, P.H., 1997. The role of International Organisations in the Evolution of Environmental Law, UNITAR, Geneva, Switzerland, p.2728 Ibid. p. 2429 Charter of the United Nations, Articled 35(1). Emphasis mine.30 Ibid., Article 34; parentheses mine.31 Climate change is one such issue: British Foreign Secretary Margaret Beckett recently noted that climate change has consequences that reach to the very heart of the security agenda. c.f. Blackett, Margaret, 2007. Raising the alarm on the greatest threat to global security … climate change – a core security threat. The Barbados Advocate.

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dispute settlement with regard to such matters. This is being mooted against the view that while the resolutions and declarations of the Assembly may not be considered legally binding, they carry significant moral and political authority which can be considered a “soft law” effect32. These decisions also can influence the creation of new international law; so while they may not impact on a given dispute, such resolutions and declarations may influence the course of decision making for future disputes33.

Security Council7. The Security Council, with the specific mandate for the maintenance of international peace

and security34 “may investigate any dispute, or any situation that may lead to international friction or give rise to a dispute”35. The mandate of the Security Council goes as far as recommending procedures or methods for adjustment at any stage of the dispute36 and matters can even be brought to it when the earlier mentioned37 mechanisms for dispute settlement have failed38 at which time it shall “recommend such terms of settlement as it may consider appropriate”39. An example of theis is the formation of te UN Compensation Commission40, which established that there can be individualised compensation for losses arising from international wars, including environmental damage. Additionally, where the International Court of Justice (ICJ) has passed judgement on a dispute, and one party to a dispute fails to comply with said judgement, the other party may have recourse to the Security Council41. It might even be suggested that pursuant to Article 25 of the Charter42

States would be bound by the Council decisions43.

Thursday, April 19, 2007. The German Advisory Council on Global Change has also identified six key threats to international security and stability that will arise from the failure of climate change mitigation. (German Advisory Council on Global Change, 2007. World in Transition: Climate Change as a Security Risk. Summary for policy makers. German Advisory Council on Global Change, Berlin, Germany, p. 5). 32 Compendium of Judicial Decisions on matters related to Environment. International Decisions, Volume 1, December 1998. p ix.33 By way of example, let us consider resolution 49/75K requesting the International Court of Justice to provide an advisory opinion on the treat or use of nuclear weapons; if one is mindful of the strong environmental concern expressed in the opinion from the Court in response to this request, it can be argued that by sending the matter to the ICJ for an opinion, the Assembly had indirectly (and I dare say pre-emptively) addressed potential/future environmental disputes. 34 Charter of the United Nations, Article 24(1)35 Charter of the United Nations, Article 3436 Ibid. Article 36(1)37 c.f. Ibid. Article 3338 Ibid. Article 37(1)39 Ibid. Article 37(2)40 Set up by Security Council Resolution 687 in the aftermath of Gulf War I to be a neutral, fact-finding, quasi-judicial body to deal with claims for direct losses, damage including environmental damage, and the depletion of natural resources as a result of Iraq’s invasion and occupation of Kuwait.41 Charter of the United Nations, Article 94.42 Article 25 states: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”43 If, as suggested by British Foreign Secretary Blackett in April of 2007 (supra: note 30), climate change is a security issue then it is conceivable that disputes related to climate change could be brought to the Security Council for resolution, particularly as they are seen as being likely to “endanger the maintenance of international peace and security” as per Charter of the United Nations, Article 34. With that settlement would come the Council’s Article 25 binding authority.

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Secretary General8. The UN Secretary General serves as the depositary for a number of international conventions

and treaties. However, in dispute settlement the role is most likely to be that of conciliator. The conciliation ruling by UN Secretary General Perez de Cuellar, on the Rainbow Warrior Affair, in July 198644 is an example of this role. It is noteworthy that some Conferences of Parties (COPs), for example that of the UNFCCC, allow the Secretary General to provide a legal opinion with regard to compliance issues.

International Court of Justice9. The International Court of Justice (ICJ) was created by the Charter of the United Nations as

the “principal judicial organ of the United Nations45. The court has the mandate to deliver judgements, advisory opinions and orders. While the judgement of the Court is only binding between the parties, this judgement is final and without appeal46. The role of the ICJ in environmental matters is widely accepted and as stated in paragraph 3 above, the scientific and moral authority of the court is such that its rulings are seen as expressing customary international law. In addition to this, the majority of “special bodies” that have been recognised as part of the UN system specifically cite the ICJ as an arbitral option for the settlement of disputes47. In the 1990s the ICJ inaugurated an Environmental Chamber, however, since 2003 it has been relatively dormant due to a dearth of cases being brought to it.

International Tribunal on the Law of the Sea10. Annex VI 48 of the United Nations Convention on the Law of the Sea constitutes the

International Tribunal on the Law of the Sea (ITLOS) for the settlement of disputes concerning the interpretation or application of the Convention49. The statute also makes provision for the setting up of a Chamber of the Tribunal, specifically to deal with disputes that fall under the jurisdiction of the International Seabed Authority. Other special chambers can be set up to deal with specific categories of disputes. Currently, five such special chambers have been established, namely: Chamber on Summary Procedures; Chamber for Fisheries Disputes; Chamber for Marine Environment Disputes; a Chamber for dealing with a dispute between Chile and the European Community concerning the conservation and

44 Conciliation Pertaining to the Differences Between France and New Zealand Arising from the Rainbow Warrior Affair, 1986 cited in Sand, 1997.45 Charter of the United Nations, Article 92 and Statute of the International Court of Justice, Article 146 Statute of the International Court of Justice, Articles 59 and 60. As mentioned in paragraph 7 of this document, pursuant to Article 94, Member States are expected to comply with the decisions of the ICJ and failing this on the part of one party, the other party has recourse to the Security Council.47 Primarily secretariats of specialised conventions as shown in Figure 1: Ozone, Basel, UNFCCC, UNCCD, Convention on Environmental Impact Assessment in a Transboundary Context (the Espoo Convention), Convention on the Protection and use of Transboundary Watercourses and International Lakes (the Water Convention), Convention on the Transboundary Effects of Industrial Accidents, (the Industrial Accident Convention), and the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention) all make specific mention of the ICJ. The Convention for the Protection of the Marine Environment of the North East Atlantic (OSPAR) involves the President of the ICJ in the dispute settlement process: article 32(5). Mention can be made here of jurisprudence exemplified in the 1974 Fisheries Jurisdiction cases, the 1974 Nuclear Tests cases, the 1993Nauru Phosphates case, the 1997 Gabcikovo-Nagynmaros case and the 2006 Pulp Mills case,which all had an environmental “flavour”.48 Statute of the International Tribunal on the Law of the Sea, Article 1.49 United Nations Convention on the Law of the Sea, Article 287

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sustainable exploitation of swordfish stocks in the South Eastern Pacific Ocean that was established under article 15, paragraph 2 of the Statute50; and, a Chamber for Maritime Delimitation Disputes51.

11. Pursuant to Article 287 of the Convention, States Parties have the opportunity to designate the Tribunal as their preferred forum for the settlement of disputes concerning the interpretation or application of the Convention. However, as at the end of 2006, only 41 States had made such a declaration conferring jurisdiction on ITLOS for marine matters52. Jurisdiction can also be conferred on the Tribunal by notification of a special agreement or by international agreements that relate to specific clauses relating to the purposes of the Convention on the proviso that the agreement contained a clause conferring such jurisdiction53. Further, the Tribunal’s jurisdiction can result from agreements, whether regional, international or global that are made pursuant to the Fish Stocks Agreement54.

World Bank12. At first glance it would appear that a Bank may not be seen as having a role in dispute

settlement. However, in April 1994 the World Bank appointed an inspection panel to respond to a request from the citizens of Nepal wherein they claimed that they had been directly and adversely affected by the design and implementation of the proposed Arun III Hydroelectric Project55. Subsequently, a management response was issued by the Bank President in 1995 indicating that an alternative strategy would be supported by the Bank56. Based on this scenario I suggest that the World Bank has the internal organisational structure that allows for settlement of disputes, specifically where such disputes centre on the actual operations of the Bank. If one only thinks of “dispute settlement mechanisms” as being between countries, organisations and/or individuals this aspect of the role of the Bank can easily be overlooked.

13. In addition, in 1965 the Bank’s Executive Directors submitted to member governments, for their consideration, the Convention on the Settlement of Investment Disputes between States and Nationals of other States (the ICSID Convention) which subsequently came into force in October of 196657. The ICSID Convention established the International Centre for Settlement of Investment Disputes (the Centre) “to provide facilities for conciliation and arbitration of

50 United Nations Convention on the Law of the Sea, Meeting of States Parties. Annual report of the International Tribunal for the Law of the Sea for 2006. New York, 14-22 June 2007. SPLOS/152, pp.5-6, paragraphs 10-2051 c.f. United Nations General Assembly. Sixty-second session, Agenda item 77(a), Oceans and the law of the Sea, Brazil, Canada, Cape Verde, Fiji, Finland, Guatemala, Iceland, Indonesia, Malaysia, Mexico, Monaco, Norway, Philippines, Portugal, Slovenia, Sweden and United States of America: draft resolution. Oceans and the law of the sea. A/62/L27, page 8, paragraph 2952 United Nations Convention on the Law of the Sea, Meeting of States Parties. Report of the seventeenth Meeting of States Parties. New York, 14-22 June 2007. SPLOS/164, p 5 paragraph 1653 Ibid., p5-6, paragraph 1754 Ibid; the United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks is often, in short form, referred to as the “Fish Stocks Agreement”55 Sand, 1997. p. 95.56 Ibid. p. 10257 International Centre for Settlement of Disputes (ICSID), 2006. ICSID Convention, Regulation and Rules. International Centre for Settlement of Disputes, Washington D.C., p 5. http://icsid.worldbank.org/ICSID/StatisFiles/basicdoc/CRR_English-find.pdf [accessed December 4, 2008]

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investment disputes between Contracting States and Nationals of other Contracting States”58. The submission of a dispute to these facilities “constitutes a binding agreement which requires in particular that due consideration be given to any recommendation of conciliators, and that any arbitration award be complied with”59. It is also interesting to note that consent to conciliation or arbitration excludes any other dispute settlement mechanism60. I posit that where a situation arises that the investment dispute is related to environmental issues, it is conceivable that the Centre could be utilised as the dispute settlement mechanism since the ICSID Convention makes no mention of a limit on the nature of, or basis for, the investment dispute.

WTO Dispute Settlement Body14. The Understanding of Rules and Procedures Governing the Settlement of Disputes (DSU)61

provides the basis for dispute settlement within the World Trade Organisation (WTO). Article 1(1)62 states that the understanding applies to all disputes brought within the context of the WTO agreement and other related agreements cited in appendix 1 of the understanding as well as “special or additional rules and procedures” cited in appendix 2. The understanding provides for the establishment of panels and an appellate body63; and provides for the use of good offices, conciliation, mediation, establishment of a panel and the appellate review64. Interestingly, arbitration plays a role in the dispute settlement provisions when compliance with rulings of the DSM becomes an issue65 with the parties having to agree to abide by any arbitration award66.

15. The first WTO case to be brought to the Appellate Body was environment-related and concerned the import of reformulated gasoline into the U.S. from Venezuela67. From this case forward, the Appellate Body has reshaped the legal interpretations of the Tuna-Dolphin cases in the GATT68, establishing a role for MEAs in the context of trade law and setting new tests for balancing trade and environmental issues. The Appellate Body has a two-tier approach to analyzing the exceptions provisions set out in GATT Article XX in the environment-related cases that have come before it. Howard Mann and Yvonne Apea have suggested that GATT and WTO disputes have made significant contributions to the evolution of the trade and

58 Ibid. ICSID Convention, Chapter I, Section 1, Article 1(2).59 Ibid. Preamble. P11.60 Ibid. Chapter II, article 26; Chapter III, article 3561 Understanding of Rules and Procedures Governing the Settlement of Disputes (DSU) WT/DS2/6 http://www.wto.org/english/docs_e/legal_e/28-dsu.pdf [accessed December 22 2007]62 Ibid. Article 1.63 Ibid. Article 2(1)64 Ibid. Articles 5 and 1765 Ibid. Article 2266 Ibid. Article 25(3)67 Panel Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/R, adopted 20 May 1996, modified by Appellate Body Report, WT/DS2/AB/R, DSR 1996:I, 29 cited in Mann and Apea, 2007. p 68.68 The Tuna-Dolphin cases between Mexico and the United States in 1991 and between the European Union and the United States in 1994 concerned a U.S. import ban on tuna caught in a manner that harmed dolphins. (Mann, H. and Y. Apea, 2007. Dispute Resolution. p. 67 IN Najam A, M. Halle and R. Meléndez-Ortiz, 2007. Trade and the Environment: A Resource Book. International Institute for Sustainable Development (IISD), International Centre for Trade and Sustainable Development (ICTSD) and the Regional and International Networking. http://www.trade-environment.org [accessed January 3, 2008]).

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environment debate69. Since the establishment of the WTO, its dispute settlement system has led to an evolution of the dynamics of the relationship between trade and the environment.

Other Dispute Settlement Mechanisms16. Other mechanisms that may not necessarily be themselves considered part of the UN system,

per se, exist for the settlement of disputes within the UN system. Foremost among these would be the Permanent Court of Arbitration (PCA), referred to earlier in this contribution, which was established by the 1899 Convention for the Pacific Settlement of International Disputes70 and the 1907 Convention for the Pacific Settlement of International Disputes71. Parties to environmental disputes can avail themselves of this Court provided that the issues can be shown to fall within its jurisdiction according to its statute. In fact, the PCA receives specific mention as part of the dispute settlement mechanism for the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)72 and the Convention on the Conservation of Migratory Species of Wild Animals (CMS)73: the secretariats of which are considered among the “special bodies” within the UN system as shown in Figure 1.

17. The Espoo Convention also allows, where negotiation has not been seen as viable, for arbitration as an alternative to the ICJ74, with specific procedures set out75. The Cartagena Convention does similarly76, as do the Water Convention77, the Aarhus Convention78 and the Industrial Accident Convention79. The Convention on Long-range Transboundary Air Pollution, on the other hand, is “open-ended” in that it allows the parties to a dispute to “seek a solution by negotiation or by any other method of dispute settlement” acceptable to them80. Increasingly, preventative approaches to allow for consultations between third States subjected to transboundary environmental contagions are being incorporated into treaties as a popular alternative to the more “standard” dispute resolution tools.

Conclusion

69 Mann and Apea, 2007. p 68. 701899 Convention for the Pacific Settlement of International Disputes www.pca-cpa.org/upload/files/1899ENG.pdf [accessed 18 December 2007]71 1907 Convention for the Pacific Settlement of International Disputes www.pca-cpa.org/upload/files/1907ENG.pdf [accessed 18 December 2007]: hereinafter referred to as the 1907 Convention72 Article XVIII(2)73 Article XIII(2)74 Espoo Convention, Article 15(2) (b) 75 Ibid. Appendix VII.76 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (the Cartegena Convention) done at Cartegena de Indias, Colombia, 24 March 1983. http://www.cep.unep.org/cartegena-convention/plonearticle.2005-11-30.8801960693 [accessed January 9, 2008], Article 23 and Annex.77 Convention on the Protection and use of Transboundary Watercourses and International Lakes (the Water Convention) done at Helsinki, on 17 March 1992. http://www.unece.org/env/water/pdf/watercon.pdf [accessed January 9, 2008], Article 22(2)(b) and Annex IV78 The Aarhus Convention, Article 16(2)(b) and Annex II79 Industrial Accident Convention Article 21(2(b) and Annex XIII80 1979 Convention on Long-Range Transboundary Air Pollution, done at Geneva on 13 November 1979. http://www.unece.org/env/lrtap/full%20text/1979.CLRTAP.e.pdf [accessed January 9, 2008]. Article 13.

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18. The United Nations System provides numerous avenues for dispute settlement: some of which may not have been seen as having obvious utility in this regard. States, organisations (both governmental and non-governmental) and individuals therefore can utilise these avenues to ensure that their right to a healthy environment81 is assured.

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Figure 1

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