International Legal Means of Disputes Settlement: Judicial Settlement and EDR
|Table of Contents:1 Introduction
3. Dispute Settlement according to UNFCCC
4. Courts of Justice
5. Environment Dispute Resolution – EDR
The many situations when population had been exposed to dramatic environmental damages raised awareness with regard to the strong footprint that humans have on the environment and with regard to the necessity to keep it healthy. “Unfortunately, examples of incidents resulting in serious environmental damage are numerous. Well-known illustrations include such events as: […] the 1986 Chernobyl nuclear power plant accident which caused radioactive contamination of the natural environment and very substantial damage to human health across the borders in Europe and Asia; […] the cyanide spill in the year 2000 from the Baia Mare mine in northwestern Romania, resulting in toxic pollution of the Danube and its tributaries in downstream countries, killing hundreds of tons of fish in some sectors of the river; and the marine oil spill incidents that have caused massive damage to the coasts of a number of countries, especially in Europe.” 1 (Training Manual on International Environmental Law http://www.unep.org. p.51)
As result of the impact of these unfortunate events, the nations identified which are the values that have to be protected by law and the outcome was translated into 10 emerging principles and concepts of the environmental law are: Sustainable development, integration and interdependence; Inter-generational and intra-generational equity; Responsibility for transboundary harm; Transparency, public participation and access to information and remedies; Cooperation, and common but differentiated responsibilities; Precaution; Prevention; “Polluter Pays Principle”; Access and benefit sharing regarding natural resources; Common heritage and common concern of humankind; and Good governance.
Anyone who acts act against these values, which , by now, had been transposed in legal provisions, falls under the liability regime and will have to pay for restoration of the affected environment or compensating for the damage caused. The subject may be individuals (private or legal persons) as long as the polluter is identified and the damage is concrete, but quantifiable, as well. But the main actor may be also a State. In this case, a distinction must be made, between the type of act that generated the damage. If we dealt with wrongful acts, the responsibility of the State is engaged. If we dealt with lawful activities, the State is liable. As we may notice, the difference is made by how the State had breached obligations arisen out of international commitments.
Basically, these are the key-elements for a dispute to arise, and this the moment when the claimants chose the fora for settling it, according to the provisions their situation falls under.
3.Dispute Settlement according to UNFCCC
The UNFCCC dedicates Article 14 to settlement of disputes, according to which, “in the event of a dispute between any two or more Parties concerning the interpretation or application of the Convention, the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice. When ratifying, accepting, approving or acceding to the Convention, or at any time thereafter, a Party which is not a regional economic integration organization may declare in a written instrument submitted to the Depositary that, in respect of any dispute concerning the interpretation or application of the Convention, it recognizes as compulsory ipso facto and without special agreement, in relation to any Party accepting the same obligation:
(a) Submission of the dispute to the International Court of Justice; and/or
(b) Arbitration in accordance with procedures to be adopted by the Conference of the Parties as soon as practicable, in an annex on arbitration.”
There are several fora for settling environmental disputes around the world, but maybe too few and not very easy to access, compared to how many damages are cause every day because of maltreatment that environment is exposed to. The strongest barrier to overpass in order to improve this mechanism is a political one – there is a continuous fight between the citizen’s interest and the State’s interest (especially in economic terms). And until this situation is fixed, covering the lost for each and any damage will be an exceptional victory and not a daily business.
4.Courts of Justice
Beside the European Court of Justice and various international human rights courts (European, African, Inter-American), which deal with environmental issues due to their profile, the most important player is the International Court of Justice, which acts under the auspices of the United Nations and is competent over a dispute, only when fulfilling a sine qua non condition – the two or more States gave their consent with regard to ICJ jurisdiction over their dispute. Unfortunately, “some of these bodies were established in an environmentally innocent era, when the protection of the environment was not elevated as a fundamental societal value at the international level. Their procedural rules do not accommodate needs of environmental victims. The international courts function within the nascent frameworks of international law and often lack compulsory jurisdiction and enforcement mechanisms.” 2 (Avgerinopoulou, Dionysia-Th. – The role of the international judiciary in the settlement of environmental disputes and alternative proposals for strengthening international environmental adjudication. Yale Center for Environment, 2003 http://www.yale.edu/gegdialogue/docs/dialogue/oct03/papers/Avgerinopoulou.pdf , p.18)
5.Environment Dispute Resolution – EDR
Usually, in climate-related disputes, where victims who are potential claimants against insurers, government agencies, and others, another way of settlement of disputes is needed (at least a faster one, for obvious reasons): EDR (Environment Dispute Resolution). Claimants prefer conciliation, negotiation, mediation or arbitration. But this EDR are not chosen only by private or legal persons, but also by States.
The most know arbitral tribunals which deal with environmental disputes are the International Centre for the Settlement of Investment Disputes (deals with environmental disputes in a foreign investment context), World Bank Inspection Panel (considers environmental disputes as long as they interfere with the World Bank activities), the Dispute Settlement Understanding (is the main function of the World Trade Organisation), or the International Tribunal for the Law of the Sea (functions under UNCLOS).
The Permanent Court of Arbitration (PCA) 3 (http://www.pca-cpa.org/), is an international organisation based in The Hague in the Netherlands, since 1899 (the oldest institution for international dispute resolution). Taking into account the growing importance of environmental affairs, the PCA has established a very elaborated Environmental Dispute Resolution mechanism, by adopting Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment 4 (http://www.pca-cpa.org/showpage.asp?pag_id=1058). Since the establishment of these rules, the administrative council of the PCA is constantly promoting the activities of the PCA in this field.
A specialized arbitral tribunal is the International Court of Environmental Arbitration and Conciliation (ICEAC) (with permanent seats in Spain and Mexico). This Court settles disputes that are submitted by states, private parties, or NGOs (allow individuals, NGOs, and other private entities to bring disputes on equal footing with governments). 5 (Kalas, Peggy – International environmental disputes resolution, Why we need a global approach – INTGLIM 2002 http://www.wfm-igp.org/site/files/WSSD_Kalas_DisputeMechs_Aug2002.pdf . p.2)
It is true that EDR are developing, but, most of the times, the physical issues at stake are mastered only by scientists, biologists, chemists (the experts), while lawyers, mediators and specially the disputants are not prepared to grab the scientific phenomenon their dispute is about. Reason for which, in order to reach greater success, the EDR practitioners need a ”rigorous and dynamic base, one that integrates a sophisticated appreciation and understanding of the environment with a contemporary and innovative approach to resolving dispute.”6 (Painter, An – The Future of EDR (Environmental Dispute Resolution) – Natural Resources Journal. Vol.28 (Winter 1988) http://lawlibrary.unm.edu/nrj/28/1/07_painter_future.pdf )
- Training Manual on International Environmental Law http://www.unep.org.51
- Avgerinopoulou, Dionysia-Th. – The role of the international judiciary in the settlement of environmental disputes and alternative proposals for strengthening international environmental adjudication. Yale Center for Environment, 2003 http://www.yale.edu/gegdialogue/docs/dialogue/oct03/papers/Avgerinopoulou.pdf , p.18
- Kalas, Peggy – International environmental disputes resolution, Why we need a global approach – INTGLIM 2002 http://www.wfm-igp.org/site/files/WSSD_Kalas_DisputeMechs_Aug2002.pdf . p.2
- Painter, An – The Future of EDR (Environmental Dispute Resolution) – Natural Resources Journal. Vol.28 (Winter 1988) http://lawlibrary.unm.edu/nrj/28/1/07_painter_future.pdf