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International environmental law.

Module B: General aspects of international environmental law II.

Chapter 4: Environmental dispute resolution.

Diplomatic means of dispute settlement
See UN Charter Articles 2 and 33.

1985 Vienna Ozone Convention, Article 11: “1. In the event of a dispute between Parties concerning the interpretation or application of this Convention, the parties concerned shall seek solution by negotiation. – 2. If the parties concerned cannot reach agreement by negotiation, they may jointly seek the good offices of, or request mediation by, a third party.”

Negotiation
1974 Fisheries Jurisdiction ICJ para 73: ‘The most appropriate method for the solution of the dispute is clearly that of negotiation. Its objective should be the delimitation of the rights and interests of the Parties, the preferential rights of the coastal State on the one hand and the rights of the Applicant on the other, to balance and regulate equitably questions such as those of catch-limitation, share allocations and "related restrictions concerning" areas closed to fishing, number and type of vessels allowed and forms of control of the agreed provisions" [...]. This necessitates detailed scientific knowledge of the fishing grounds. It is obvious that the relevant information and expertise would be mainly in the possession of the Parties. The Court would, for this reason, meet with difficulties if it were itself to attempt to lay down a precise scheme for an equitable adjustment of the rights involved. It is thus obvious that both in regard to merits and to jurisdiction the Court only pronounces on the case which is before it and not on any hypothetical situation which might arise in the future.’

Consultation
Some environmental treaties require consultation in e.g. authorization of harmful activities and development plans. 1979 LRTAP Convention Article 5 requires early consultations to be held between:
 * parties ‘actually affected by or exposed to a significant risk of long-range transboundary air pollution’ and
 * parties in which a significant contribution to such pollution originates.

1957 Lake Lanoux arbitral tribunal held that France had a duty to consult with Spain over certain projects likely to affect Spanish interests.

Also Gabcikovo-Nagymaros, Pulp Mills.

Mediation (good offices) and conciliation, fact-finding inquiry
See Article 9 of ILC 2001 Articles on the Prevention of Transboundary Harm from Hazardous Activities.

Article 33 of the 1997 UN Watercourse Convention: “[...] 2. If the parties concerned cannot reach agreement by negotiation requested by one of them, they may jointly seek the good offices of, or request mediation or conciliation by, a third party, or make use, as appropriate, of any joint watercourse institutions that may have been established by them or agree to submit the dispute to arbitration or to the International Court of Justice. – 3. Subject to the operation of paragraph 10, if after six months from the time of the request for negotiations referred to in paragraph 2, the parties concerned have not been able to settle their dispute through negotiation or any other means referred to in paragraph 2, the dispute shall be submitted, at the request of any of the parties to the dispute, to impartial fact-finding in accordance with paragraphs 4 to 9, unless the parties otherwise agree. – 4. A fact-finding Commission shall be established, [...].”

Legal means of settling disputes – “adjudication”
Any judicial process trumps other dispute settlement procedures.

Arbitration

 * 1973 CITES, Article 18
 * 1992 Climate Change Convention, Article 14
 * 1979 Berne Convention on Conservation of European Wildlife and Natural Habitats, Article 18(2): “Any dispute between Contracting Parties concerning the interpretation or application of this Convention which has not been settled on the basis of the provisions of the preceding paragraph or by negotiation between the parties concerned shall, unless the said parties agree otherwise, be submitted, at the request of one of them, to arbitration. Each party shall designate an arbitrator and the two arbitrators shall designate a third arbitrator. Subject to the provisions of paragraph 3 of this article, if one of the parties has not designated its arbitrator within the three months following the request for arbitration, he shall be designated at the request of the other party by the President of the European Court of Human Rights within a further three months' period. The same procedure shall be observed if the arbitrators cannot agree on the choice of the third arbitrator within the three months following the designation of the two first arbitrators.”

Arbitration caselaw: 1893 Pacific Fur Seals – 1935/41 Trail Smelter –  1957 Lake Lanoux.

ITLOS order followed by UNCLOS Annex VII tribunals/PCA awards: 1999 Southern Bluefin Tuna – 2001 MOX Plant. S China Sea.

Land Reclamation UNCLOS Annex VII tribunal.

PCA awards: N Atlantic Fisheries, Iron Rhine, Rhine chlorides.

International Court of Justice
No priority or general jurisdiction; only states have standing: Chapter II, Statute esp. art. 36(2) (opt-in compulsory jurisdiction). In July 1993 the ICJ established a seven-member permanent Chamber for Environmental Matters under Article 26(1) of its Statute, “which was periodically reconstituted until 2006. However, in the Chamber’s 13 years of existence no State ever requested that a case be dealt with by it. The Court consequently decided in 2006 not to hold elections for a Bench for the said Chamber.”

ICJ environment caselaw: e.g. 1997 Gabčíkovo–Nagymaros. Test for interim measures: Pulp Mills, Costa Rica v Nicaragua.

1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons paras 27 to 30: Stockholm 21/Rio 2 (no damage outside state’s own jurisdiction) cited; “The Court recognizes that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognizes that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment” (para 29); citing Rio 24 “Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.”

International Tribunal for the Law of the Sea
UNCLOS (Part XV) esp. Art. 287 allows choice of forum: arbitration, ICJ, ITLOS.

The International Seabed Authority is the only international organization with standing to sue states.

ITLOS arbitration cases on precautionary principle: 1999 Southern Bluefin Tuna under UNCLOS Annex VII – 2001 MOX. ITLOS can prescribe provisional measures before arbitration panel is constituted.

World Trade Organization (quasi-judicial)
Restriction measures under e.g. Montreal Protocol may clash with WTO/Gatt free trade rules.

1994 WTO Agreement (see esp. Articles III and IV) introduced the Annex ‘Understandingon Rules and Procedures Governing the Settlement of Disputes (DSU)’, establishing Panel recommendation (and Appellate Body report) is adopted by DSB unless consensus against.
 * Dispute Settlement Body (DSB)
 * ad hoc panels (EU–Biotech on genetically modified organisms)
 * Appellate Body, based in Geneva (see Beef Hormones on precautionary principle, Shrimp/Turtle, Asbestos).

Non-compliance procedures
These focus on prevention and (state) participation to facilitate; plus threat of punitive enforcement measures for deterrence – carrots and sticks. Compliance control (quasi-judicial? due process): Trigger (states reporting) – verification (NGO?) – evaluation (political?) – measure to redress. Compliance assistance (World Heritage, Ramsay wetlands inter alia): capacity-building, technology transfer, financial mechanisms (e.g. Global Environment Facility). Multilateral to address obligations erga omnes partes against free riders in the commons. Minamata Convention art. 15 provides for a compliance mechanism directly. Also inspection procedures of e.g. World Bank.

CITES
Procedures since 2007. Committee is controlled by COP; possible trade measures.

Montreal Protocol
Implementation Committee communicates with the parties on monitoring non-compliance and (with Secretariat) may report to the Meeting of the Parties. Financing and substance trade eligibility can be withdrawn if not compliant.

Conditionality: party can claim insufficient resources to preclude non-compliance procedure: art. 5. Multilateral Fund.

Kyoto Protocol
7th COP (Marrakesh 2001) and 1st MOP (Montreal 2005) adopted the non-compliance mechanism for Annex I parties under Article 18 of the Protocol, with Facilitative (little used, 1 case so far) and Enforcement Branches in Compliance Committee (1st meeting Bonn March 2006). In addition, there are review/transparency processes – Measurement, reporting and verification (MRV); Multilateral Consultative Process &rarr; after Cancún since 2014: International Assessment and Review (IAR) for developed countries and International Consultation and Analysis (ICA) for developing ones.

The Enforcement Branch dealt with a dozen cases so far, first Greece; Croatia first appeal, eventually withdrawn. Canada led to withdrawal from Protocol. See informal information notes by the secretariat on questions of implementation considered by the enforcement branch. “Consequences” include ineligibility to participate in joint implementation (Article 6), Clean Development Mechanism (Article 12), and emissions trading (Article 17).

Paris Agreement
‘1. A mechanism to facilitate implementation of and promote compliance with the provisions of this Agreement is hereby established. 2. The mechanism referred to in paragraph 1 of this Article shall consist of a committee that shall be expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive. The committee shall pay particular attention to the respective national capabilities and circumstances of Parties’: Article 15. COP24 Katowice 2018 has not agreed on a compliance committee.

1998 UNECE Aarhus Convention
Mechanism since 2002. Committee-proposed means must be approved by MOP. Civil society participation is welcome, and the vast majority of the Committee's workload has been triggered by communications from the public.

In 2011 the Committee found recourse to CJEU not satisfactory under the Convention.

Cf. NAFTA Commission on Env. Coop.

1992 Biodiversity Convention, Cartagena Biosafety Protocol
Technology transfer: art. 16.

Compliance procedures and mechanisms are set out in MOP 1 Decision BS-I/7. Compliance Committee has no mandate to consider NGO submissions. It will only consider facilitative and supportive measures when a party self-refers.

Rotterdam Convention
Compliance mechanism agreed in COP spring 2019.